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lien was filed this property was in the Seventh | A man of sound mind and disposing memory ward, but by a decree of the Court of Quarter is one who has a full and intelligent knowledge Sessions a new ward was erected, called the of the act he is engaged in, a full knowledge of Twelfth ward, and this property fell in the new the property he possesses, an intelligent percepward.

tion and understanding of the disposition be Defendant's counsel requested the court to desires to make of it, and of the persons and obcharge, inter alia, “That there is nothing injects he desires shall be the recipients of bis the lien or in the evidence by wbich the build- bounty. It is not necessary that he collect all ing intended to be charged can be indentified." these in one review. If he understands in detail Answer.-"Refused. A. Spath's testimony is all that he is about, and chooses with underthat the stable is close to the line of Hines' lot, standing and reason between one disposition corner of East and Locust streets, and that the and another, it is sufficient for the making of a corner lot of Hines is sixty feet front on East will: Daniel v. Daniel, 39 Pa. St., 191; Fawney street."

v. Long, 76 Id., 106. If from any cause he is so There was a verdict for plaintiff for $273.97, I en feebled in mind as to be incapable of knowing and defendant took this writ, assigning for error the property be possesses, of appreciating the the refusal of the court to charge as requested effect of any disposition made by him of it, and in the foregoing point.

of understanding to whom he intends to beFor plaintiffs in error, Messrs. James A. Reed queath it, he is without the requisite testamenand S. A. McClung.

tary capacity: Leech v. Leech, 21 Id., 67. He Contru, Messrs. A. J. Barton and John Barton. must have memory. A man in whom this

faculty is totally extinguished cannot be said PER CURIAM. Filed October 25, 1882. We think there was sufficient in the evidence

to possess understanding to any degree what

ever, or for any purpose. But his memory may of Andrew Spath under which the lot in ques

be very imperfect; it may be greatly impaired tion could be identified from the description

by age or disease; he may not be able at all contained in the mechanic's lien. The courts

times to recollect the names, the persons or the lean in favor of sustaining these claims where

families of those with whom he had been inthe property is so described that those acquainted

timately acquainted; may at times ask idle queswith the neighborhood are able to identify it.

tions, and repeat those which had before been Judgment affirmed.

asked and answered, and yet lis understanding

may be sufficiently sound for many of the orWILSON et al. v. MITCHELL et al.

dinary transactions of life. He may not have

sufficient strength of memory and vigor of intelA man of sound mind and disposing memory is one who has a full and intelligent knowledge of the act he is

lect to make and to digest all the parts of a conengaged in, a full knowledge of the property he pos tract, and yet be competent to direct the distrisesses, an intelligent preception and understanding of bution of his property by will. This is a subject the disposition he desires to make of it, and of the per- | which he may possibly have often thought of: sons and objects he desires shall be the recipients of his bounty. It is not necessary that he collect all these in

and there is probably no person who has not one review. If he understands in detail all that he is arranged such a disposition in his mind before about, and chooses with understanding and reason be he comitted it to writing. More especially, in tween one disposition and another, it is sufficient for

such a reduced state of mind and memory, he the making of a will.

may be able to recollect and to understand the Error to the Court of Common Pleas of Butler disposition of his property which he had made county.

by a former will when the same is distinctly Opinion by TRUNKEY, J. Filed December 30, read over to him. The question is not so much 1882.

what was the degree of memory possessed by The determination of the first question pre- the testator as this—had he a disposing memory? sented in the issue was withdrawn from the Was he capable of recollecting the property he jury by the court directing them to find that at was about to bequeath, the manner of distributthe time of the execution of the alleged will | ing it, and the object of his bounty? To sum David Dougal was of sound mind and disposing up the whole in the most simple and intelligent memory. If this ruling was correct, the first form, were his mind and memory sufficiently four assignments of error cannot be sustained, sound to enable him to know and to understand even if the defendants' first three points were the business in which he was engaged at the sound. In considering whether the question time when he executed the will? Stevens v. should have been submitted, some well settled Vanclees, 4 Wash. C. C., 262; Dour v. Williamprinciples may first be noted.

son, 1 Green. Ch., 82. Neither age nor sickness, nor extreme distress or debility of body, will and feeling man, always glad to meet bis old affect the capacity to make a will if sufficient acquaintances of childhood; that in the last intelligence remains. The failure of memory years of his life his mind was not so vigorous; is not sufficient to create the incapacity, unless that in 1880 his memory appeared to be right on it be total or extend to his immediate family or transactions in the prime of his life; on these property. The want of recollection of names is he conversed as well as ever; did not talk about one of the earliest symptoms of the decay of the recent trausactions, but he asked about witness' memory; but this failure may exist to a very wife; asked the same question over several times, great degree, and yet the solid power of the as if he had forgotten he had asked it before; understanding remain: Van Alst v. Hunter, 5 saw nothing like insanity about him, and never Johns. Ch., 148.

| heard an irrational or insane expression by A careful examination of the facts related by him, and observed no hallucination or delusion; the witnesses who had acquaintance with Dou- and the witness thinks that, under solicitation gal, and opportunity to observe his condition and well-wishers, Dougal would have readily about the time of the execution of the will, re- changed his mind, and doubts if he had capacity veals no sufficient evidence of testamentary in- to make a will. Surely this testimony does not capacity to warrant its finding against the con- show want of testamentary capacity. All true; vincing evidence that he had disposing mind and Dougal could understand the business in and memory. Excepting the attesting witnesses which he was engaged when he made his will, to the will, one who is not an expert, can only know the property he possessed, and understand testify his opinion that the testator's mind was to whom he desired to give it. Other witnesses not unsound, after having stated facts within who knew less of Dougal had positive opinions his own knowledge tending to show that condi- | that he lacked testamentary capacity; but the tion; and whether he has testified to such facts facts they stated, if not precisely the same as as entitle his opinion to go to the jury is always stated by Dunlap, came as far short of justifying a question for the court: First National Bank | such opinion. of Easton v. Wirebach's Executor, 39 Legal The testimony of the experts, physicians, was Intell., 336. In the admission of testimony the upon hypothetical statements; and had the evicourt allowed the defendants great latitude, and dence warranted the finding of facts as stated having heard it all, upon determining its suffi- in the interrogations, the question of the testaciency, properly gave no weight to opinions tor's capacity to make a will, ought to have been which were incompetent. Dougal had lived submitted to the jury. But the learned judge over a hundred years before he made his will, of the Common Pleas was right in hoding that, and his physical and mental weakness and de- in no just view of the evidence, could such a fective memory were in striking contrast with case be found as the experts considered and their strength in the meridian of his life. He passed upon. was blind; not deaf, but hearing impaired; his The testator left the home of his kindred at an mind acted slowly, he was forgetful of recent early age, and thereafter his intimate friends events, especially of names, and repeated ques- and associates were strangers to his blood. Untions in conversation; and sometimes, when til he became blind he lived alone. During the aroused from sleep or slumber, would seem be- last few years of his life he was in the house of wildered. It is not singular that some of those Mrs. Protzman, and the care she and her family who had known him when he was remarkable gave him was satisfactory to himself. For many for vigor and intelligence, are of opinion that years Mr. Mitchell had been his attorney and his reason was so far gone that he was incapable friend, and in his blindness and feebleness be of making a will, although they never heard often requested and received visits from Mitchhim utter an irrational expression. To remark ell, more of a friendly than professional characthe testimony of each witness called by the de- ter. His estate was not large, and it does not fendants would be vain; but the general charac- appear tbat he had made any disposition of it ter may be learned from one of the most intelli- until a short time before his death. He congent, Mr. Dunlap. He knew Dougal in 1815, veyed one-half the farm to Mrs. Protzman in studied surveying with him in 1835, was an August, 1878, and the other half in April, 1879. intimate friend, was very frequently with him He acknowledged two deeds on April 28, 1879; in the line of his business, and when Dougal one to William Dougal and one to James Dougal, ceased surveying he turned his business over to for the lots in Butler, and about the same time the witness. He testifies that Dougal was a made a will. On December 31, 1880, he de strong-minded man, wrote rapidly and well, stroyed said will, and also the deed to William and was very tenacious of his opinions; a tender and James Dougal, and made a will, devising

the two lots in Butler to William M. Dougal, devise or bequeath the whole or any part of his James Dougal, Catharine Protzman and Lewis estate to Mitchell or Mrs. Protzman. The only Z. Mitchell, share and share alike. He appears thing pointing to such request is the testimony to have been grateful for the care and kindness of of Kate Bauldauf, that Mrs. Protzman proposed those about him. Whatever may be thought of to the witness to ask Dougal to will her somethe wisdom of the devises, or of the just claims thing; but the witness did not. That was about of his distant collateral relatives upon his bounty ten years before the making of the will. Doubtthe circumstances of this will add little force to less there was the influence of affection and atthe allegation that he had not disposing memory tachment resulting from the care and attention at the date of its execution.

of Mrs. Protzman, but that by itself is a ground We are of opinion that the court rightly with- / in support of the testamentary act in her favor. drew the question from the jury. A case should If Mitchell and Mrs. Protzman testified truly, not be submitted when the evidence is so in-Dougal himself directed the disposition of his sufficient that the court ought not to sustain the property. If they and the subscribing witnesses verdict: Cauffman v. Long, 82 Pa. St., 72. are believed, the will was read to Dougal several

The remaining assignments relate to the ques- | times, and it is too simple to require explanation. tion whether the will was procured by fraud, It was executed in December, and in the next devices, imposition and under influence. After May Dougal desired that Jackman should also calling attention to the fact that Mitchell had witness it, and it was again read in the hearing been the attorney and confidential advisor of of Jackman. Then he declined to have it witDougal, that he wrote the will, and was himself nessed by Jackman, although requested to do a considerable beneficiary, the court charged so, giving no reason at the time for his refusal; that when the alleged testator is weak in mind, but in June he again sent for Jackman and had arising from age or other causes, though such him subscribe as a witness. The character of weakness is not sufficient to create testamentary Mitchell is unassailed. None of the subscribing incapacity, and the person whose advice has witnesses or devisees are impeached, save by been sought and taken, receives a large benefit testimony of some contradictory statement. It under the instrument propounded as a will, it was for the jury to determine whether Mitchell must be shown affirmatively that the alleged had clearly and satisfactorily proved the absence testator bad full understanding of the nature of of fraud. the dispositiou contained in it. In the case of The presumption of fact is, undue influence an old, infirm and mentally weak man, dispos- by Mitchell over the testator whereby he obing of his estate in favor of his confidential ad- tained the devise to himself, and this is deemed visor, the general rule that testamentary capacity a constructive fraud. This is what was necesand knowledge of the disposition made are pre- sary for Mitchell to rebut by proper evidence. sumed, does not apply. There should be very If he satisfied the jury of the absence of such clear evidence of mental capacity and proof, influence, there was no fraud. Hence it was independent of the execution of the will, that right for the court to instruct the jury upon the Mr. Dougal's mind was free and unbiassed by law applicable to the evidence, and not subthe counsel, advice or influence of Mr. Mitchell mit a question of which there was no evidence. in so executing it. The beneficiary himself be- The answers to the defendants' fourth, eighth, ing a competent witness, he cannot complain ninth, tenth, eleventh and twelfth points did that the rule is hard or unjust which requires not modify the instructions relative to the undue him to make it clearly appear that the gift to influence and fraud presumed from the relationhim was the free, intelligent act of the testator. ship, but distinguished that influence and conMoreover, the defendant's seventh point was structive fraud from actual fraud, or such unaffirmed, as modified or explained in the general due influence as importunity that could not be charge, and nothing has been pointed out in the resisted. charge which diminishes the force of the propo- We think the defendants' fifth point was sition. That these were the fitting instructions rightly refused. The evidence fails to show that respecting the constructive fraud from the rela- Mitchell ever made any representation to Doutionsbip between Dougal and Mitchell, is not gal of the value of his services, or requested denied; but the defendants insist that the ques- compensation by a provision in his will. But tion of actual fraud should have been submitted, Mitchell's testimony is that he never directly or or that the jury should have been instructed to indirectly expressed an opinion to Dougal in find for the defendants.

| regard to his making a will; that about a week There was no evidence of any persuasion, before the making of this will Dougal said he entreaty or request by any one, for Dougal to I would make him one of his heirs; that was the

District Court, United States,

only such intimation before the day of writing their interest passed to their assignee in bankthe will; that at the time the will was being ruptcy. written Dougal wanted the devise to be in satis- / Prior to the commencement of the proceedings faction of bis services. Ground was not laid for in bankruptcy, however, Smith & McGregor obthe legal conclusion that the devise is void if | tained a judgment in the Circuit Court of the incommensurate with the services rendered. United States for the Western District of Penn

Judgment affirmed. sylvania against John Carrier, and the assignee For plaintiffs in error. Messrs. Brandon & in bankruptcy took Carrier's title subject to the Campbell and Jenks & Clark.

lien of that judgment. The judgment was duly

| revived, and upon an execution issued thereon Contra, Messrs. Thompson, McCandless, Flee

the United States Marshal on the 19th of June, ger, McQuiston and Walker.

1879, sold the interest of Carrier in the land to the said Riley, to whom the marsbal executed

a deed therefor dated August 25 and acknowlWestern District of Pennsylvania,

edged August 26, 1879.

Under authority from Riley and Stockdale,

but without the consent of the assignee in bankLEVI BIRD DUFF, Assignee in Bankruptcy of

ruptcy, and without his knowledge so far as apCARRIER & BAUM, v. EDWIN BINDLEY.

pears, George F. McLean and Andrew Baum

cut from the said tract of land timber yielding (1.) It being by statute (Act of May 4, 1869), unlawful about 2,000,000 feet of lumber. McLean and for an owner of an undivided interest in timber land

Baum commenced these operations in the fall to cut down or remove from the land any timber trees,

1 of 1878 and continued them during the year without having first obtained the consent of his cotenants and as against his non-consenting co-tenants 1879, or the greater part thereof. his sale of lumber manufactured out of timber so cut or McLean and Baum sawed up the timber and removed passing no title to his vendee: Held, in an

sold and delivered part of the lumber manufactaction of trover against such vendee by a non-consent

| ured out of it to Edwin Bindley, the defendant; ing part owner, that the plaintiff was entitled to recover the value of his interest in the lumber, as of the date of and this is the lumber which is the subject-matthe defendant's conversion, with no allowance for the ter of this suit. When sold to the defendant the expense and labor of the trespassing vendor.

lumber was at the railroad siding at Dubois, in (2.) Timber unlawfully cut down by an owner of an un:

| Clearfield county, and by the defendant's didivided interest in the land, without the consent of his co-tenant and still lying upon the land at the time of

rections it was shipped to him from that point the marshal's sale of the undivided interest in the land by rail, consigned to him at Pittsburgh. Uuder of the non-consenting owner who had not elected to the evidence the railroad siding at Dubois must treat the felled timber as personalty, remains part of

be considered as the place of delivery to the dethe freehold, and the interest of the defendant in the execution therein passes to the marshal's vendee as

| fendant. Upon the shipment to bim at that realty.

place the conversion by him of the lumber was

complete. CHARGE OF THE COURT, ACHESON, D. J., DE

In Pennsylvania, by virtue of the provisions LIVERED FEBRUARY 20, 1883.

of the Act of Assembly of May 4, 1869, Purdon, GENTLEMEN OF THE JURY:

1467-8, it is “unlawful for any owner or owners This is an action of trover brought by Levi of any undivided interest in timber land within Bird Duff, assignee in bankruptcy of John Car- this Commonwealth, to cut or remove, or to rier and Andrew F. Baum, against Edwin cause to be cut or removed, from the said land, Bindley, to recover damages for the wrongful any timber trees, without first obtaining the conversion of certain lumber-boards, etc.,- written consent of all co-tenants in said premmade from timber cut from a tract of land num-ises." [Section 1.] bered 2009, situate in Clearfield county, Penn- ! The second section of the act provides that, sylvania.

“No sale of any timber cut or removed from This tract, by a deed dated March 13, 1868, such undivideh lands, before or without such was conveyed by John Dubois to John Carrier, consent, shall pass any title thereto; and the Andrew F. Baum and Robert Osborne, who parties injured shall have every remedy in law took and held the land as tenants in common, and equity for the recovery of the said timber owning equal interests, one-third each.

trees, and of all square timber, boards, ties, About the year 1876 the interest of Osborne shingles and other articles whatsoever manuin the land became vested in James W. Riley factured therefrom, and also for the recovery of and J. T. Stockdale. Carrier and Baum were damages for the cutting or removing of the same, duly adjudged bankrupts in the year 1874, and which they now have against an entire stranger to the title.” And section third provides that, S. Marshal on June 19, 1879. Beyond all ques"Upon the violation of the provisions of the first tion that sale carried to Riley, the purchaser, section of this act, it shall be lawful for any of Carrier's interest in all timber then standing on the parties in interest to sue out a writ of estrepe- the tract. But I am of opinion, and charge you, ment, to prevent any further cutting thereon, that it went beyond that, and also embraced all or the removal of any timber then already cut felled timber which then remained on the land. or both; which said writ shall be of force until I am of the opinion, and instruct you, that such the interests of the parties shall be set out in timber-timber cut down by McLean and Baum severalty, or the writ dissolved by the court, or prior to the date of the marshal's sale, but still the action of partition in reference to said land lying on said tract No. 2009, at the time of said finally ended."

sale--must be regarded, as between the parties In the present case McLean and Baum, in cut-to this controversy and those under whom they ting the timber from tract 2009, acted altogether claim, as part of the realty: Rogers v. Gilinger, without the consent of the assignee in bank- 30 Pa. St., 185; Seidy v. Procter, 97 Id., 486. ruptcy; and therefore as to him they were naked Hence, in right of Carrier the plaintift had only trespassers-willful wrongdoers. Nor did they an interest in so much of the lumber in question acquire as against the plaintiff any better title | --the lumber delivered to the defendant--as was to the lumber, the boards, etc., than they had sawed or made from timber removed from tract in the timber itself. The assignee in bankruptcy No. 2009 prior to June 19, 1879,—the date of the had the same undivided interest in the lumber marshal's sale. as he had in the timber out of which it was The jury may fairly assume that the 22,800 sawed.

feet of boards delivered to the defendant on It follows, therefore, that the sale by McLean | June 21, 1879, was made from timber which had and Baum to the defendant did not convey any been removed from the tract prior to the martitle to the plaintiff's share of the lumber, and shal's sale. But how much, if any, of the lumber the plaintiff is entitled to a verdict according to | delivered after June 21, was made from timber the extent of his interest in the lumber so sold removed from the tract prior to June 19, 1879, and consigned to the defendant.

has not been shown as clearly as is desirable. From the defendant's testimony it appears I, however, leave you to determine, under all that the first delivery to him was of 22,800 feet the evidence, how the fact is. of clear and common pine boards on June 21, ! In assessing the plaintiff's damages you will 1879. The next deliveries were on July 24, ascertain from the evidence what was the fair August 28 and September 18, 1879. As to the value of the lumber at the railroad siding at quantities delivered at these dates there is no Dubois at and immediately before the time it controversy. The counsel will furnish you with was put on the cars; and you will make no the figures in their respective statements, which I deduction or allowance for any expenses Mcthey will submit to you.

Lean and Baum were at in cutting the timber, The other deliveries to the defendant were or sawing it, or in removing it to the railroad made in cars (the numbers of which we have) siding. I have already instructed you that the at Dubois, on and after November 2, 1879. In plaintiff's interest in the sawed lumber was the respect to the quantity of these deliveries, there same as his interest in the timber itself out of is a great discrepancy, amounting to from 75,000 which it was made, and in ascertaining its value to 85,000 feet, between the parties. The evi- | no abatement is to be made on account of what dence here is conflicting. The counsel have McLean and Baum's labor and expenditures commented upon it and given you their respect- / may have added to its value. They were mere ive views. It will be for you to determine from trespassers as against the plaintiff and entitled all the evidence, the whole quantity, the number to no such allowance, and in this respect the of feet of lumber, delivered to the defendant, re- defendant is in no better position, membering that the delivery took place at Du- Let me briefly recapitulate: bois upon its shipment by the cars.

The jury will ascertain: First-The whole Having determined the whole amount of the quantity of lumber delivered to the defendant. lumber delivered to the defendant, the next Second-The defendant's proportion or share question for your consideration will be, what thereof, in accordance with the instructions was the plaintiff's proportional interest or share already given. ThirdThe fair value of the therein ? He undoubtedly owned a third inter- lumber at the railroad siding at Dubois at the est in right of Baum. He claims another one- time it was put on the cars. Having determined third interest in right of Carrier. But Carrier's these matters, the money value of the plaintiff's interest in this tract of land was sold by the U. I share will be of easy calculation. To that value

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