DECREE OF COURT,

Now, December 21, 1925, the rule granted to show cause why a new trial should not be granted, is discharged.

STUMP v. HARTMAN.

Judgment-Opening-Evidence-Necessary Proof.

Where the testimony of defendant, although refuted, shows that a judgment note for the price of a machine was executed upon a contemporaneous parol agreement that the machine had to work satisfactorily and that, if not working properly, the plaintiff would take it away from the premises. the judgment will be opened.

It is difficult to lay down a precise measure of proof which should move a chancellor to open a judgment. That he may not act unless there is more than oath against oath, is a familiar rule in chancery practice; where there is more than this, and when it comes to the question of the weight of the evidence, it is for him to decide to which side the scales incline. If he is in doubt upon this question, or as to the credibility of witnesses, a prudent course would suggest the aid of a jury.

In the Court of Common Pleas of Lehigh County. No. 521 September Term, 1925. Henry K. Stump v. Paul O. Hartman. Petition to Open Judgment. Judgment Opened.

Oliver W. Frey, for Plaintiff.

Dewalt & Heydt, for Defendant and Motion.

Iobst, J., December 28, 1925. This is an application on the part of the defendant to open the judgment entered to the above number and term, and to let him into a defense. In pursuance to the rule, depositions were taken and the case placed on the argument list.

The petition for the rule alleges a contemporaneous parol agreement between the parties which induced the execution and delivery of the judgment note in question, and that the said note upon which judgment was entered, was used in violation of said agreement.

From the depositions filed in this case, it appears that the plaintiff, Henry K. Stump, on July 27, 1925, delivered to the defendant, Paul O. Hartman, a Case threshing machine and separator. The judgment note for the price of the machine was executed and delivered on

the following day. The defendant testified that at the time of the delivery of the machinery, as well as at the time of the signing of the note, the plaintiff stated that the thresher and separator had to work satisfactorily and that if not working properly he, the plaintiff, would take it away from the premises; that, relying upon said statement and the promise made to him by the plaintiff, he signed the note. He further testified that the thresher and separator did not work properly; that he could not use it, and that he had to hire a machine from his neighbor to do the work. The defendant does not stand alone in his testimony, but is corroborated by four or five other witnesses who overheard the conversation between the parties, and who also testified that the thresher and separator did not work properly when an effort was made to use it. The defendant stated that this collateral agreement was the inducing cause for the signing of the note.

While most of this testimony is refuted by the defendant, the Court feels that sufficient material facts have been produced to justify the submission of the defense to a jury.

As stated in Fisher v. Holbrook, 7 Pa. Sup. 647, 649, "It is difficult to lay down the precise measure of proof which should move a chancellor to open a judg ment. That he may not act unless there is more than oath against oath is a familiar rule in chancery practice; where there is more than this, and when it comes to a question of the weight of the evidence, it is for him to decide to which side the scales incline. If he is in doubt upon this question, or as to the credibility of witnesses, a prudent course would suggest the aid of a jury: Jenkintown N. Bank's Appeal, 124 Pa. 337; Crawford v. Rath, 4 Pa. Sup. Ct. 612."

DECREE OF COURT

Now, December 28, 1925, the prayer of the petitioner is granted; the judgment is opened and the defendant is permitted to enter a defense. A feigned issue is hereby framed, wherein Henry K. Stump is plaintiff, and Paul O. Hartman is defendant, the pleadings whereof shall consist of a plaintiff's statement reciting the judgment and the defendant's affidavit of defense, which shall be filed within fifteen days after service of plaintiff's statement. The Prothonotary is directed to file a copy of this

order in No. 521, September Term, 1925. If the lien of the levy is still effective, it is to remain until the final disposition of this issue.

KEMMERER v. DATTNER.

Wills-Gifts to Wife During Widowhood-Power to Consume-Contingent Remainder-Fee Simple Estate.

A testator gave to his widow the remainder of his property "to her use," provided she remained his widow, and in case of her remarriage she was to receive only a one-third interest therein, the remainder of his estate, "should there remain any" to his children.

Held, that the widow having the right to consume, there inhered in it also the power to grant an estate in fee simple.

Classifying real and personal estate together, and making both subject of the power to use and consume, distinguishes this case from others.

In the Court of Common Pleas, of Lehigh County, No. 136 September Term, 1925. Harvey D. Kemmerer, Meda S. Kemmerer, and Gordon B. Kemmerer and Meda S. Kemmerer, Executors, etc., of Morris G. Kemmerer, deceased, v. Max Dattner and Max Freedman. Case Stated. Judgment for Plaintiffs.

Henninger & Snyder, for Plaintiffs.
Groman & Rapoport, for Defendants.

Reno, P. J., December 28, 1925. Benjamin Kemmerer died intestate seized of the premises which is the subject of this case stated. His heirs were his two sons, Harvey Kemmerer and Morris G. Kemmerer, who each took and held a one-half undivided interest in the premises. Morris G. Kemmerer died testate and by his will, provided in the first paragraph thereof for the payment of his debts and continued:

"Second:-After the mandate enumerated in paragraph first have been complied with and satisfied, all the rest, residue or balance of my estate, being it real, personal or mixed, of whatsoever kind or nature or wheresoever the same may be situated at the time of my demise, I do give to my wife, Meda S. Kemmerer, to her use, providing however that she remain my widow and

not marry again, however should my said wife, Meda S. Kemmerer, again get married at any time after by demise, than in such case she is to receive only one third (1-3) as the share of my estate. Of the remainder of my estate should there remain any, I give, devise and bequeath unto my daughter, Verna I. Kemmerer, the sum of ($500.00) Five Hundred Dollars and then should there remain any part of my estate this remainder or balance I give, devise and bequeath to the following named children, Verna I. Kemmerer, Gordon B. Kemmerer, Norman N. Kemmerer, Lillian A. Kemmerer, Noble H. Kemmerer, Paul H. Kemmerer, Florence M. Kemmerer, Caroline A. Kemmerer, Mildred M. Kemmerer, share and share alike."

Harvey Kemmerer and his wife and Meda Kemmerer, unmarried, widow of Morris G. Kemmerer, joined by the executors of the estate of Morris G. Kemmerer, agreed to sell the premises to defendants who have refused to accept title alleging that, under the terms of the will of Morris G. Kemmerer, Meda S. Kemmerer cannot convey a fee simple title to the one-half undivided interest in the premises. The terms of the case stated authorize us to enter judgment for plaintiffs for the purchase price if we are of opinion that defendants will secure a fee simple title; otherwise judgment shall be entered for the defendants for the amount paid by them upon the execution of the agreement.

It will be observed that the testator gave his widow all his property "to her use," provided she remained his widow, and in case of her remarriage she was to receive only a one-third interest therein. The remainder of his estate, "should there remain any" he gives to his children. It is clear, then, that the testator contemplated the use of the property by way of its consumption by the widow. This is indicated not only by the word "use" but also by the significant words "should any remain." Hence, whatever may be said of the quality of the estate devised to the widow, we are sure that to that estate there was annexed the right of consuming the real estate and personal property.

This right to consumption is generally found annexed to life estates and when so found the courts have had no difficulty in pronouncing such estates equivalent

to a fee simple estate in the sense that the holder thereof can convey a fee simple title: Allen v. Hirlinger, 219 Pa. 56; Hege v. Ickes, 267 Pa. 57; Houser v. Houser, 268 Pa. 401; Benedict v. Hawthorn, 270 Pa, 529; Edwards v. Newland, 271 Pa. 1; Grundler v. Chmielinska, 272 Pa. 197.

Here, the estate devised is not a life estate. It is a devise in fee simple of the testator's entire estate, subject to reduction to a fee simple in one-third of the estate in the event of the widow's remarriage. This, however, does not interfere with the operation of the rule. As we read the cases, a devisee may convey a fee simple title whenever the language of the devise, by employment of words such as "use," "balance," "what shall then be left," clearly evinces the testator's purpose to have his devisee enjoy the right and power of consumption. For example, in Houser v. Houser, supra, the devise was to the widow "to be used as she sees fit for her maintenance as long as she remains my widow," with the additional devise that "the balance of my property shall then be divided among my legal heirs." This, the Supreme Court found, gave her an absolute estate. The final disposition of the case, by reason of a codicil not herein mentioned, does not negative the principle that a power of consumption added to another estate transforms that estate into a fee simple for the purpose of carrying out the power of consumption. The circumstance that enables a holder of an estate to which there is annexed a power to consume to convey a fee simple title is the power; and hence, whenever the power is given, even though the estate is not a life estate and even though, as here, it is subject to a condition subsequent, as long as the estate subsists the power to consume exists and for that purpose the power to grant a fee simple title inheres.

It will be observed, also, that this testator classed his real estate and personal property together and made both the subject of the power to use and consume. In this, will be found the circumstance which distinguishes this case from Follweiler's Appeal, 102 Pa. 581; Cox v. Sims, 125 Pa. 522; Taylor v. Bell, 158 Pa. 651; and the other case upon which the defendants rely. Kennedy v. Pittsburgh, R. R. Co., 216 Pa. 575; Hege v. Ickes, 267 Pa. 58; Houser v. Houser, supra, are the ruling authorities upon this point.