long since been abandoned, still the question on a motion for a verdict against a party on whom the burden of proof rests is, Does any evidence fairly and reasonably tend to sustain that party's claim? and, if there is evidence fairly and reasonably having that tendency, it is immaterial to the motion that such evidence is contradicted. Contradictions and contradictory inferences are to be weighed by the jury. Fraser v. Blanchard & Crowley, 83 Vt. 136, 147, 73 Atl. 995, 75 Atl. 797; Morris v. Trudo, 83 Vt. 44, 74 Atl. 387, 25 L. R. A. (N. S.) 33; Wigmore, Ev. § 2494; Commissioners, etc., v. Clark, 94 U. S. 278, 284, 24 L. Ed. 59. In the closing argument for the plaintiff counsel argued that there was negligence on the part of the defendant in not giving sufficient instructions as to the operation of this saw; the argument being based on the evidence as to the way the saw acted, and the knowledge of the defendant in that regard. In charging the jury, the court took the view that, while certain counts of the declaration alleged negligence in failure to instruct, there was no evidence tending to show that the injury was caused by want of instruction, and charged the jury that the plaintiff could not recover on that ground, and, referring to the argument of counsel in that behalf, told the jury not to consider that; that the only ground of negligence to be considered related to the sufficiency of the saw and its appurtenances. But we think that the evidence disclosed a basis for the argument, and that the charge was more favorable to the excepting party than it was entitled to; and so we do not consider the question of whether, had the argument not been warranted by the evidence, the charge of the court would have cured the erroneous claim based upon it. Judgment affirmed. (231 Pa. 237) JAFFE v. COOPERMAN et al. (Supreme Court of Pennsylvania. April 10, 1911.) APPEAL AND ERROR (§ 957*)-REVIEW-DISCRETION OF COURT OPENING DEFAULT JUDGMENT. The discretion of the lower court in opening judgment in ejectment against a minor, entered by default, where the guardian ad litem of the minor moved to open the judgment because the default had occurred through the absence of counsel on vacation, and the guardian alleged a just defense and supported his petition by proof, which was passed upon by the court, will not be reviewed on appeal. [Ed. Note.-For other cases, see Appeal and Error. Cent. Dig. § 3823; Dec. Dig. § 957.*] Appeal from Court of Common Pleas, Philadelphia County. to open judgment plaintiff appeals. Affirmed. Argued before BROWN, MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ. Charles L. Smyth, for appellant. Jacob Weinstein and M. B. Elwert, for appellees. He was a minor, for PER CURIAM. In this action of ejectment judgment was taken against Israel H. Cooperman, one of the defendants, in default of a plea or answer. whom a guardian ad litem had been appointed. The judgment by default was taken on July 21, 1910, and on the 28th of the same month application was made to have it stricken off. This was denied on September 20, 1910, and three days later a petition was presented by the guardian ad item, asking that the judgment be opened. The petition set forth that the plea and answer had not been filed within the required time, because counsel for the petitioner was absent on his vacation when they ought to have been filed, and there was an averment of a just, true, full, and legal defense to the action. To this an answer was filed, and, after depositions has been taken in support of the petition, the judgment was opened. No opinion was filed giving the reason which induced the court to exercise its discretion in relieving the defendant from the judgment taken against him by default, but it may be assumed that it regarded the averments in the petition as sufficiently sustained. We have not been persuaded that its discretion was abused in opening the judg ment, and the appeal is dismissed, at appellant's costs. (231 Pa. 163) NORRIS v. BREAKWATER CO. (Supreme Court of Pennsylvania. March 27, 1911.) APPEAL AND ERROR (§ 657*)-RULE FOR JUDGMENT-RECORD-STATEMENT OF GROUNDS. Where the trial court fails to file an opinion making absolute a rule for judgment for want of a sufficient affidavit of defense, the record will be remitted, that the court may indicate its reasons for its action. [Ed. Note.-For other cases. see Appeal and Error, Cent. Dig. §§ 2830-2833; Dec. Dig. § 657.*] Appeal from Court of Common Pleas, Philadelphia County. Action by Edward W. Norris against the Breakwater Company. From an order making absolute rule for judgment for want of sufficient affidavit of defense, defendant apFals. Record remitted to lower court. Argued before BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. Action by Peter Jaffe against Nathan Cooperman and others. Judgment for plain- John Kent Kane and Emanuel J. Myers, tiff, and from an order making absolute rule for appellant. F. S. Laws, for appellee. (231 Pa. 155) MILES LAND CO. v. PENNSYLVANIA 1911.) TRIAL ($ 10*)-TRANSFER FROM EQUITY CAL ENDAR. PER CURIAM. The affidavit of defense in this case covers 17 pages of printed matter in appellant's paper book. Judgment was entered against the defendant for its al- (Supreme Court of Pennsylvania. March 20, leged insufficiency. The court below must have had reasons for deeming it insufficient, but what they were we do not know. No specifications of insufficiency were filed by the appellee, and all that we have from the court below is: "Rule absolute." In such a case the reason or reasons entertained by the court for holding the affidavit of defense insufficient should be given, and the record is remitted, that we may be informed why this affidavit was deemed so. The duty is not ours in the first instance of saying why an affidavit of defense is insufficient. Upon return of the record, leave will be granted to move to advance the hearing of the appeal. (231 Pa. 140) CITY OF ALLENTOWN v. ROTH et al. (Supreme Court of Pennsylvania. 1911.) March 20, A bill to enjoin the mining of coal, for an inspection of the mines, for discovery and an accounting, and averring ownership of the land, (P. L. 440), to the law side of the court; the is properly certified, under Act June 7, 1907 primary question being one of title, when the answer claims ownership in fee simple. [Ed. Note. For other cases, see Trial, Cent. Dig. § 27; Dec. Dig. 8 10.*] Appeal from Court of Common Pleas, Lackawanna County. Bill by the Miles Land Company against the Pennsylvania Coal Company. From a decree certifying the case to the law side of the court, plaintiff appeals. Affirmed. Argued before MESTREZAT, POTTER, STEWART, ELKIN, and MOSCHZIS KER, JJ. Samuel B. Price and Cole B. Price, for MUNICIPAL CORPORATIONS (8 527*)--IMPROVE- appellant. Everett Warren, Henry A. Knapp, MENTS-PERSONAL ACTION AGAINST OWNER. Act April 4, 1907 (P. L. 40), providing and Charles P. O'Malley, for appellee. that municipalities may recover any municipal claim whatsoever by lien or action of assumpsit, is not retroactive, and does not apply to cases in which improvements were completed and assessments made before the enactment of the statute. [Ed. Note.-For other cases, see Municipal Corporations. Cent. Dig. §§ 1242, 1243; Dec. Dig. § 527.*] Appeal from Court of Common Pleas, Le high County. Action by the City of Allentown, for the use of Warren Bros. Company, against Henry Roth and others. From a judgment sustaining a demurrer to the statement in the case, plaintiff appeals. Affirmed. Argued before BROWN, MESTREZAT, ELKIN, STEWART, and MOSCHZISKER, JJ. PER CURIAM. This bill prayed for an injunction to restrain defendant from mining coal under two parcels of land, containing in the aggregate about six acres, for an inspection of the mines, and for discovery and an account of the coal mined and removed from the premises. It averred that the plaintiff is the owner of the land. The answer denies such ownership, and avers that the defendant company owns the land in fee simple. The court below held that the bill would not lie, that the title must be determined in an action at law, and certified the case, under the act of June 7, 1907 (P. L. 440), to the law side of the court. This is the error assigned on this appeal. We think the court was clearly right. Frank Jacobs, for appellant. Thos. F. The defendant company was in possession Diefenderfer, for appellees. and mining the coal, and claimed to own the PER CURIAM. This is an action in as-premises in fee. The primary question was sumpsit by the appellant to recover from a number of property owners in the city of Allentown the amount of assessments against their properties for certain municipal improvements. It seeks to recover under the act of April 4, 1907 (P. L. 40). That act is not retroactive, as is clearly pointed out in Barnesboro Borough v. Speice, 40 Pa. Super. Ct. 609. The improvements for which the appellant sues were completed and the assessments made thereon prior to the passage of the act of 1907, and its provisions cannot, therefore, be invoked. The judgment for the defendants on their demurrer is affirmed. one of title. The right to discovery and account prayed for in the bill was dependent on the plaintiff company's title to the land. If it had title, the relief prayed for followed; if it did not have title, it could de mand neither discovery nor an account, as it had no interest in the coal mined by the plaintiff. The proper forum to settle the first and controlling question is the law side of the court. In the meantime the plaintiff company has an ample remedy to protect and preserve its rights in the coal now being mined by the defendant. The order certifying the case to the law side of the court is affirmed. (231 Pa. 154) Appeal from Court of Common Pleas, KEMMERER IRON & STEEL CO. v. BIT- Philadelphia County. Action by the London Guarantee & Accident Company, Limited, against William P. Ogelsby. Judgment for plaintiff, and defendant appeals. Affirmed. On a motion for judgment for defendant n. o. v. Brégy, P. J., filed the following opinion: "This is a suit to recover the amount claimed to be due to the plaintiff as deferred Appeal from Court of Common Pleas, Lack- premiums on policies of indemnity insurance. awanna County. Action by the Kemmerer Iron & Steel Company against W. E. Bittenbender and others. From an order dismissing exceptions to referee's report, defendants appeal. Affirmed. Argued before MESTREZAT, POTTER, ELKIN, STEWART, and KER, JJ. The amount claimed is due if the policies issued by the plaintiff company insured the defendant against accidents-to his helpers, laborers, and others that were engaged in the work of his plumbing business-in addition to the plumbers themselves. The deMOSCHZIS-fendant's contention is that the policies only insured the actual plumbers-if he is right in this, the verdict is wrong. Samuel B. Price, Cole B. Price, and W. W. Baylor, for appellants. R. L. Levy, John P. Kelly, C. P. O'Malley, and George D. Taylor, for appellee. "The best way to determine this is to ascertain whether, if suit was brought, for illustration, for injury to a plumber's helper or laborer, would the insurance company be liable? And in doing this the principle must be kept in mind that, in construing the policy, it must be construed as strongly as possible against the company issuing the policy. "In the policy there is a section of it called 'Schedule.' In the fourth section of that schedule this is what appears: PER CURIAM. As suggested by the learned counsel for the appellants, the crucial question in the case is whether the $9,000 of bonds issued by the appellee company were purchased by the appellants, or were taken as collateral security for the indebtedness of the appellee to the appellants. The referee found that the bonds in question were sold, and not pledged, to the appellants. The finding of the referee was confirmed by the court below. After a careful consideration pay roll at each of the case, we find sufficient evidence before the referee to warrant his finding, and, having been approved by the court, it will not be disturbed. INSURANCE ( 168*)-INDEMNITY INSURANCE- In an action to recover premiums on poli- "4th. The place or places where work is to be carried on, the kind of work at each such place, the number of employés and estimated such place as stated below: Gas, Steam including the making Water struction Work only........ Plumbers exterior Con- of Ventilating plants apparatus & Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, STEWART, and Ruby R. Vale, for appellant. W. W. Smithers, for appellee. "The first question is, Does the entry un-[ the pay roll covered the wages of all perder the title 'Kind of Work,' indicate or sons employed at the places mentioned, did mean that only plumbers were insured? We not insure all persons so employed. To conbelieve that entry applied only to the busi- strue that policy as strongly as these words ness or kind of work Mr. Ogelsby was en- would permit must result in holding this gaged in, and this view clearly appears to be company liable. This makes the present deright, when we look at section 5 of the sched- fendant liable. The offer made of testimony ule, which is in these words: "The opera- to alter the terms of the policy we think did tions carried on are those usual to the trade not come up to the legal requirements. In or kind of work described above.' We then our opinion there is no doubt about the conhave the assertion that the policy which in- struction of the policy, and the admission of sured Mr. Ogelsby was against accidents oc- what was offered would be most dangerous. curring during the carrying on of operations "The rule for a new trial is discharged and usual to the kind of work described under the motion for judgment n. o. v., etc., is disthat title. Mr. Ogelsby was a contracting missed." plumber, doing the kind of work mentioned in the schedule under the title 'Kind of Work.' This applies, of course, only to the MOSCHZISKER, JJ. kind of operations that the policy covered. We think the question as to what persons were insured is settled by the twelfth section of the schedule, taken in connection with the entry under the item 'Estimated Pay Roll for Policy Term.' in section 4 of the schedule. The entries under the above caption are $10,000 and $2,000. Section 12 says: "The estimated pay roll covers wages of all persons employed at the places mentioned above including executive officers and office men and drivers and drivers' helpers, except as follows: Except assured and office force.' The premium to be paid for the policy is to be based upon the amount of the pay roll of the insured persons. It is a percentage of the pay roll under section 4, as already stated. Mr. Ogelsby put down the sum of $10,000 as the amount of 'Estimated Pay Roll for Policy Term'-opposite the entry 'Plumbers inside building-including the making of house connections, gas, steam and hot water apparatus, filters, and installation of ventilating plants away from the shop,' and opposite the words 'Plumbers exterior construction work only' the sum of $2,000 was put down. "We think the answer to the question as to what these two entries-$10,000 and $2,000-means settles the question of the insurance company's responsibility. Section 12 says: "The estimated pay roll (that is, the entries above alluded to) covers the wages of all persons employed at the places mentioned above,' etc. In a suit against the insurance company, it seems to us that a defense by them that the estimated pay roll only covered actual plumbers would fail in view of the words of section 12, so often quoted by us. Otherwise the state of affairs would be that a company issuing a policy to a customer who indicated under the words 'Kind of Work' that his business was that of a general contracting plumber, and who had indicated the amount of his pay roll, with the assertion in the schedule (which is signed by the applicant for insurance) that PER CURIAM. The majority of the court is of opinion that the judgment appealed from should be affirmed for the reasons stated in the opinion of the learned president judge of the common pleas. (231 Pa. 213) In re HOWELL'S ESTATE. TRUSTS (§ 125*) - CONSTRUCTION PROPERTY certain personalty under a will and an interest A person having an absolute interest in in certain stock required to be held in trust by the same will executed a voluntary deed of trust in which she referred to her absolute interest in the personalty under the will, and enumerated certain items of personalty, but did not mention the interest in the stock. Thereafter she continued to draw dividends on such stock personally. Held, that in view of the omission of such stock from the items enumerated, and the construction put upon the deed by the parties thereto, such stock did not pass by the deed. [Ed. Note.-For other cases, see Trusts, Cent. Dig. § 168; Dec. Dig. § 125.*] Appeal from Orphans' Court, Philadelphia County. In the matter of the estate of William tions to adjudication, Anna M. Keir Howell Howell. From a decree dismissing excepappeals. Reversed. See, also, 185 Pa. 350, 39 Atl. 966. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. Horace M. Rumsey, for appellant. Bernard Gilpin, for appellee. MOSCHZISKER, J. William Howell provided in his will: "I have a large amount of the stock of the Green Mount Cemetery Company and whereas it is my mind and will and I direct that the stock of said Company shall not be sold until the expiration of Ten | life, free of debts, and upon her death to years after my decease, but it shall be held in trust by my trustees but the right to vote in the Company's affairs shall be in the legatees the same as if the stock presently divisible and distributable at the time of such voting would be entitled thereto and in the ratio in which in such case in proportion to their respective interests therein. I further direct that such legatees shall be entitled to in like manner and proportion to receive the income from said stock directly and without the intervention of said trustees." He directed his trustees to divide his residuary estate into as many equal shares as he should have children and issue of deceased children, the latter standing in the place of their parents, living at his death, and to pay the net income to each for life, and at death to pay the share of the one dying, as he or she would appoint by will. pay the principle as she may appoint by will, or in default of a will, to be distributed in accordance with the intestate laws, ending with a declaration that the grantor "hereby acknowledges that she has been fully apprised of the value of her interest in the trust estate of the late William Howell and that she understands the same." On April 13, 1910, upon the adjudication of an account of the executors of the estate of William Howell, deceased, a distribution was made of the Green Mount Cemetery stock at a value of $97,500, and the share of the said Anna M. Keir Howell was awarded to the Commonwealth Company as trustee under the aforesaid deed. She has appealed and assigns this award for error, contending that the deed of trust was not intended to, and did not in point of fact, embrace this cemetery stock, and that her one-fourteenth interest therein should have been awarded to her directly. The appellee contends that it is apparent from the instrument that the grantor intended to convey all of the personal property which came to her under the will of her husband from the estate of William Howell, deceased; that this is shown by the recital and by the general words of the grant, and therefore the mere fact that she omitted specific reference to the cemetery stock is not sufficient to prevent it from passing under the deed. * * Charles B. Howell, son of the testator, died January 13, 1897, entitled to dispose of one-seventh of the residuary estate of his father, including the Green Mount Cemetery stock, leaving surviving a widow and no issue. He directed by his will that his estate should be distributed according to the intestate laws of Pennsylvania. Under the terms of this latter will, Anna M. Keir Howell, the widow of the testator, Charles B. Howell, became entitled to one-fourteenth of the personal estate and to a life-interest in one-fourteenth of the real estate of the orig- In construing a deed, so far as possible, inal testator, William Howell. Howell's Es- the whole instrument should be considered tate, 185 Pa. 350, 39 Atl. 966. On February to arrive at the intent of the parties. When 11, 1899, Anna M. Keir Howell executed a we look at the present deed, we find in the voluntary deed of trust to the Common- recital that the property is referred to as wealth Title Insurance & Trust Company, as that which the grantor was then entitled to follows: "Whereas the said Anna M. Keir | “absolutely;" and, when we come to the Howell being entitled to one-fourteenth of grant, the words are "all the right, title the personal estate of the late William Howof her, * * of in and to the ell absolutely under the will of her husband personal property belonging to her and which the late Charles B. Howell whereby he exe- is as follows," after which there is a particucuted the power of appointment conferred lar enumeration of property without any upon him by the will of the late William reference to the stock in question. When Howell and also during life to one-half of we look back at the will of William Howell, the net income arising from a one-seventh it is seen that the cemetery stock is differshare in the real estate of the late William entiated from his other personal property, Howell. Now this indenture witnesseth that in that the corpus of it is directed to be the said Anna M. Keir Howell held in trust for a period of 10 years from hath granted the date of his death. He died April 20, these presents doth grant, 1889, and the deed of trust was executed over unto the said Commonwealth *February 11, 1899, at which time the stock Trust Company and its successors in trust was still in trust. With these facts in mind, all the right, title, interest, claim, property it is evident that the word "absolutely" as and demand of her, the said Anna M. Keir used in the recital has significance, and it Howell of in and to the personal property may well be that the parties to the deed did belonging to her and which is as follows: not intend this stock to pass thereunder. (a) a mortgage for $4,897.22 (b) a It appears that in point of fact the parties mortgage for $3,500 (c) a mort- themselves never treated the deed as if the gage for $500. As well as a life- stock had been transferred to the grantee, interest in one-half of one-seventh of the in- inasmuch as the dividends thereon were alcome arising from the real estate belonging ways paid directly to Anna M. Keir Howell, to the trust estate of the late William How- and not to the Trust Company. "Courts will, ell." The deed is made irrevocable, and pro- if they can, give to the contracts of parties vides that the property shall be held in trust the exact effects which the parties them and set over and by * * * * |