1908, leaving a will by which he gave his estate to his wife Cathern. He died at the house of Amos Kauffman. For about two years and a half preceding his death his wife and he had their home with Amos Kauffman. Both the testator and his wife were old, but she was strong and active, an energetic worker both in the house and in the field. Mrs. Kauffman, the wife of Amos Kauffman, in infancy had been cared for by the Kampels. She was reared by them. Previous to moving to the Kauffman home, the Kampels lived with Dr. Reeder, of Millersville, where, we understand, they were comfortably provided for. In return for what they received the old people worked, doing what was consistent with their position and condition. While thus situated, Amos Kauffman offered them a home with his family. The Reeders seem to have been reluctant to part with them, but Kauffman induced them to accept his invitation, declaring that there would be no charge for the privileges which he offered them, and the testimony also discloses that the motive which prompted his action, other than possibly an expression of appreciation of their kindness to his wife when a child, was the expectation of a legacy. On October 13th, less than a month after the testator's death, Kauffman had two wills written, which, at his request, Cathern Kampel signed. With the exception of the alteration of a name these wills, though written by different persons, are alike, even as to orthographic errors and erratic chirographic sinuosities. The reason for the second was that the scrivener of the first had incorrectly designated Kauffman's wife (the sole legatee and executrix) as Catharine, her name being Susan. These wills were prepared wholly at the instance of Kauffman, never read to Cathern Kampel, and immediately upon her signing them were taken possession of by him. Nine days after the testator's death, before these wills had been written, Kauffman had an assignment prepared, transferring Cathern Kampel's entire interest in the decedent's estate to him in consideration of what he had done for her and "for such further care as I may need till my death". She says that she knowingly signed no paper except what she had been told was a will. Later she left the Kauffman home, whereupon he brought suit in the Court of Common Pleas to recover for serving and boarding the testator and his wife. It is understood that this suit has been or will be discontinued, the claimant choosing this forum. The assignment to Kauffman of Cathern Kampel's interest in the estate was not offered by his counsel, but by Cathern Kampel's, who stated that, with the wills, he offered it as corroborative of the fact that Kauffman had prevailed upon the Kampels to take their home with him in expectation of a legacy. Even if the assignment was not fraudulently obtained, Kauffman seems to have been anxious to suppress it. By its terms he is responsible" for such further care" as Cathern Kampel may need until her death. We find that Kauffman gave the Kampels a home in expectation of a legacy, and, therefore, can not recover on his claim, except to the extent of twentyfive dollars for holding the funeral. The will of Cathern Kampel indicates an ultimate realization of his expectation. Common Pleas--Law. C. P. OF LANCASTER COUNTY. Buckius vs. Flick. Set-off. A justice of the peace can not enter judgment for a claim which could have been set off by the plaintiff in a previous suit by the defendant against him. June Term, 1909. No. 33. Coyle & Keller and Jacob Hill Byrne, for plaintiff. John A. Nauman, for defendant. October 23, 1909. Opinion by HASLER, J. The exceptions filed to the alderman's record in this case raise the question whether judgment can be entered for a claim which should have been set-off by not enter judgment upon it, and the exceptions are therefore sustained and the proceedings of the alderman set aside. Legal Miscellany. the plaintiff in a previous suit by the defendant against him. The facts agreed on are that on January 23, 1909, G. Samuel Flick, the defendant in this case, brought suit against Harry W. Buckius, the plaintiff, before an alderman of this city and obtained judgment on January 30, 1909, from which the said Buckius appealed, which appeal is now pending in | Imputed Negligence-Person Kiding in an Court. At the time said judgment was obtained the said Harry W. Buckius had a claim for $42.25 against said G. Samuel Flick, which he did not offer as a set-off in the suit of said Flick against him, though it was a proper subject of set-off. Subsequently, on February 12, 1909, he brought suit and obtained this judgment which we are now asked to set aside on certiorari. The Act of March 20, 1810, 5 Smith, 163, Section 7, provides that "A defendant who shall neglect or refuse in any case to set-off his demand, against a plaintiff, which shall not exceed the sum of one hundred dollars, before a justice of the peace, shall be and is hereby forever barred from recovering against the party plaintiff, by any after suit." It has been held that it is unlawful, under this Act, for a defendant to sue for such a cross demand where suit has been commenced against him before a justice of the peace: Slyhoof vs. Flitcraft, I Ashmead, 171: White vs. Johnson, 2 Ashmead, 146; Stanton vs. Gunther, Lack. Law Register, 404; Shetter vs. Metzgar, 4 York, 8; Light vs. Lingle, I Pa. C. C., 156: Tuttle vs. Sheridan, 5 L. L. R., 1: Franklin vs. Fox, 5 Kulp, 391. The fact that the claim sued on is such a one as should have been set-off in a previous suit, between the parties may be shown on certiorari by evidence outside the justice's record: Light vs. Lingle, I C. C., 156: Krug vs. Walter, 6 Delaware, 187. Where judgment has been obtained on such a claim it should be set aside on certiorari: Prautz vs. Kratzert, 22 L. L. R., 118. I It having been shown that the claim upon which this judgment was obtained is one that could have been set-off in a prior suit, in which the present defendant was plaintiff, and the present plaintiff was defendant, the alderman could Automobile as Guest. In Chadbourne vs. Springfield St. Ry., in the Supreme Judicial Court of Massachusetts (October, 1908, 85 N. E. 737), it was held that where plaintiff, who was inexperienced in the operation of ing as the guest of an experienced driver, an automobile, was injured, while ridin a collision between the automobile and a street-car, the driver's negligence, if any, was not imputable to her. On this point the court said: "The question of the plaintiff's due care was for the jury. She seems to have conducted herself as an invited guest of the driver of an automobile or other vehicle naturally would do. trusted him as to the running of the machine-that is, she did not attempt to interfere with his management of the automobile. In view of her experience and of what might have been found to be the skill and experience of the driver, the jury might well have thought that this was a wise course on her part. Nor was there any relation of agency between her and the driver, such as of itself would affect her with negligence on his part. She had no right to control him. There was no mutuality in a common enterprise between them. It cannot be said as matter of law that she ought to have warned the driver against turning out from behind the car which he had been following, especially in view of the fact that he was turning both in the direction required by statute (Rev. Laws, c. 54, sec. 2), and in the only direction in which the width of the bridge afforded room for him to pass that car. And she had a right to rely somewhat on the acquaintance with the road which she might presume that he had. "Accordingly, we need not consider whether it can be said that Reed's con duct was, as matter of law, negligent. | been made. As explanatory of the acEven if this were so, the plaintiff's own due care was for the jury. Shultz vs. Old Colony St. Ry., 193 Mass., 309, 79 N. E. 873. 8 L. R. A. (N. S.) 597, 118 Am. St. Rep. 502; Miller vs. Boston & Northern St. Ry., 197 Mass. 535, 83, N. E. 990." This decision is worthy of note because it illustrates the general judicial attitude now prevailing as to mere passengers and guests in vehicles. We cannot imagine any reason why the ordinary American rule that, in the absence of agency or mutuality in a common enterprise, the negligence of a driver is not imputable, should not apply to persons riding in an automobile. Indeed, it would seem that the substantial reasons for the rule would apply with particular force because the average woman and a very large number of men know nothing about the machinery and operation of such motor cars, and therefore are under even less duty to look out for their own safety than if riding in carriages drawn by horses. It is a matter of some interest, however, to have the doctrine of imputed negligence-or rather absence of imputed negligence-authoritatively determined as to these comparatively modern vehicles. The decision has a certain special interest as affecting the law of Massachusetts because the Supreme Judicial Court of that State has not maintained a consistent attitude toward the doctrine | of Thoroughgood vs. Bryan (8 C. B. 115), although it did repudiate that English legal land-mark in Randolph vs. O'Riordon (155 Mass. 331). A certain countenance was given to the principle of Thoroughbred vs. Bryan, in Yarnold vs. Bowers (71 N. E. 799), wherein it was held that one who was being rowed by another in a rowboat was chargeable with the contributory negligence of the rower in getting in front of a steamer. This decision in Yarnold vs. Bowers, to an extent relied upon Allyn vs. Boston & A. R. R. (105 Mass. 77), which had cited and to an extent relied upon Thoroughbred vs. Bryan. The discussion in Yarnold vs. Bowers was unfortunately not as full as it might very readily have tual decision it should not be overlooked that the court was of opinion that defendant's intestate might have interfered with and controlled the action of the other person rowing the boat and also that the intestate" would in all probability have escaped if he had been sitting down instead of standing up." In the latter respect at least it would seem that the intestate was presumably guilty of contributory negligence on his own account. In view of the somewhat fluctuating course of the Supreme Judicial Court of Massachusetts it is satisfactory that in the principal case the doctrine of Thoroughbred vs. Bryan is disapproved as applying to guests in automobiles. An interesting decision on this general topic is that of the Supreme Judicial Court of Maine in Whitman vs. Fisher (57 Atl. 895), where a verdict. for a plaintiff was set aside because, although she was not driving the wagon of which she was an occupant, she might, by the exercise of due care, have observed an obstruction in the street and by informing the driver led to avoiding it, thus averting the accident that caused her injury. Of course a passenger is not relieved from reasonable care to avert accidents to obstructions in the road and similar dangers, and in the principal case. it was held that the question of plaintiff's due care was for the jury. It is proper to charge one riding as a guest in an automobile with some responsibility for observation and action to avoid injury, the degree thereof depending upon the circumstances disclosed. - New York Law Journal. Eshbach's Estate, 17 LAW REVIEW, LANCASTER LAW REVIEW. 337 VOL. XXVII.] MONDAY, NOV. 15,1909. [No. 2. Common Pleas--Law. C. P. OF LANCASTER COUNTY. Charles Wise vs. A. M. Baker. Wills-Construction -Devise in trust without limitation over-Dry trust followed by active trust as to residue. A trust is dry where there are no active duties for the trustee to perform and no devise over. A testator devised certain real estate to his sons"in trust however," but without gift over, subsequently directing his executor to act as trustee for the property devised to his sons without specifying his duties as such "and also over their share of the residue and remainder of my estate, real, personal and mixed hereinafter mentioned, the said trustee to invest their respective shares in good securities and pay the interest thereof to them annually during the term of their natural life with remainder to their heirs or in default thereof the survivors of testator's children or their heirs. Held that the sons took the whole title to the real estate and could convey the same in fee. While the will directed active duties as to the residue of the estate the words last quoted do not refer to the real estate specifically devised, or limit the sons' title thereto. The fact that there is no limitation over after a devise is to be weighed in support of the construction that the testator intended to pass a fee. Under Section 9 of the Act of 1833 a devise passes the whole estate of the testator without words of inheritance or perpetuity unless a contrary intention appears. September Term, 1909. No. 37. John E. Malone, for plaintiff. The trust is a dry or passive trust as there are no duties to perform in reference to the real estate first devised, and the devisee therefore receives the whole estate. Yarnall's Appeal, 70 Pa., 335. The devise of the real estate was not affected by the trust covering the residuary shares. Lloyd vs. Mitchell, 130 Pa., 205. Where the intendment of a willis doubtful the law favors an absolute estate and a distribution conformable to the general rules of inheritance. Amos E. Burkholder, for defendant. Clause nine of the will provides that the executor is to act as trustee over the real estate bequeathed to the two sons and this must be interpreted in connection with the preceding clauses. If the trustee is to collect the interest he is also to collect the rents. The construction must be that which is consistent with the whole scheme of the will. Middleswarth's Adm'r vs. Blackmore, 74 Pa., 414. All the surrounding circumstances must be considered. Stambaugh's Estate, 135 Pa., 585. A devise in fee simple may by subsequent expressions be converted into an inferior interest. Haldeman vs. Haldeman, 4 Wright, 29. Middleswarth's Adm'r vs. Blackmore, 74 Pa., 414. Simes' Estate, 130 Pa., 451. Watson's Appeal, 125 Pa., 340.. "The collection of rents of real estate and the interest and income of personal estate, to be paid over to the cestui que trust during life, and the preservation of the corpus of the estate for those in remainder, will constitute the trust an active one." Livezey's App., 106 Pa., 201. "Where the trust is not active the legal estate will remain in the trustee so long as it is necessary to preserve the estate itself, as in the case of a trust for a married woman to protect the estate from her husband; or a trust for a spendthrift son to protect it from his creditors or to preserve contingent remainders." Lancaster vs. Dolan, 1 Rawle, 247. Wright vs. Brown,,8 Wright, 224. "A devise to one for life with remainder to his children, their heirs, executors, and administrators as tenants in common, creates only a life estate in the first taker the remaindermen taking only as purchasers." Chew's App., 37 Pa., 23. "A limitation in a will to one for life, with power of appointment in favor of the issue of his body, and in default of such appointment to such issue, and if he die leaving no issue of his body, then over, creates an estate tail in the first taker." Kay vs. Scates, 37 Pa., 31. Although a fee may be given in a former part of a will it is to be restrained by a subsequent clause so as to convert it into an inferior interest." Urich vs. Merckel, 81 Pa., 332. Urich's App., 86 Pa., 386. The testator in this case evidently intended to preserve the estate for his two sons and protect it from their creditors and preserve the contingent remainder, thus creating an active trust. As to active trusts the following cases are in line: Dodson vs. Ball, 60 Pa., 492. October 23, 1909. Opinion by LANDIS, P. J. "Sixth. I give, devise and bequeath, in trust however, unto my dear son, Charles Wise, the double house and lot of ground, situated in the Borough of Ephrata, on Washington Avenue, being Nos. 146 and 148, and also the double house and lot of ground, situated in the said Borough on Lincoln Avenue, corner of Marshall Street, being Nos. 118 and 120." "Ninth. I order and direct that my executor hereinafter named shall act as trustee over the property hereinbefore bequeathed to my two sons, viz.: Charles and Harry G. Wise, and also over their share of the residue and remainder of my estate, real, personal or mixed, hereinafter mentioned, the said trustee to invest their respective shares in good securities and pay the interest thereof to them annually, during the remainder of their natural life, and at their decease, or the decease of either of them, pay their respective principal share to his or their heirs or their legal representatives. And in case either of them should die without any legal heirs, then such share to go and be divided between the survivors of my children or their heirs, share and share alike, the heirs to receive the share of their deceased parent." On June 17, 1909, the plaintiff, Charles Wise, entered into articles of agreement, to sell, in fee simple, to the said defendant, the real estate mentioned in the above recited clauses of the said testator's will, for the sum of $2,000.00, and, in pursuance of this agreement, he, on June 21, 1909, tendered to the defendant a deed of conveyance, and demanded the payment of the purchase money. Mr. Baker, however, declined. to comply with this request, on the ground that, under the testator's will, the plaintiff had not an indefeasible title, and could not make a deed in fee simple to him. In order, therefore, to ascertain the quality of the estate given to the said plaintiff, this case stated has been. agreed upon, and that question is now raised before this Court. It will be observed that, while the real estate in question is devised to Charles Wise, in trust, there is no disposition over upon his decease, and that, while, in the ninth section, it is provided that |