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ERED IN DETERMINING UNDUE INFLUENCE
OF CHIEF LEGATEE.

that to a third paper headed "eighth," and 14. WILLS 166(2)-MATTERS TO BE CONSIDthat to a fourth introductory paper. No other information from the papers themselves that they were intended to be connected as a will. If we should sustain such efforts, it would open wide the door to fraud. Any evil-minded person might, with comparative ease, take a will, and, by cutting from it sections or paragraphs, entirely defeat the object of the testator.

[4] None of the papers of testamentary character was signed at the end thereof. The sixth section of the act of April 8, 1833 (P. L. 249), expressly states how a will must be signed. See Stinson's Estate, 228 Pa. 475, 77 Atl. 807, 30 L. R. A. (N. S.) 1173, 139 Am. St. Rep. 1014. Loose pieces of paper were there unsigned and the name of the testator appeared on a single piece of paper. This is not signing "at the end thereof" as contemplated by the act. See Wineland's Appeal, 118 Pa. 37, 12 Atl. 301, 4 Am. St. Rep. 571, for a further discussion of this question. The decree of the court below is affirmed, at the cost of the appellant.

(265 Pa. 315)

In re MILLER'S ESTATE.

(Supreme Court of Pennsylvania. June 21,

1919.)

On the issue of undue influence the court will consider all the circumstances entering into testator's life at or about the time of the duties and association with his physician, the act complained of so far as they relate to the chief beneficiary, and endeavor to find from the conduct of both if there is any ground for the belief whether the physician had been actuated by improper motives.

5. WILLS

166(2)—EVIDENCE INSUFFICIENT

TO SHOW UNDUE INFLUENCE OF CHIEF LEG-
ATEE.

Evidence held not to show undue influence on the part of testator's physician, the chief beneficiary.

Appeal from Orphans' Court, Lancaster County.

Proceeding for the admission to probate of the will of Joseph Miller, deceased. From a decree refusing an issue d. v. n. to determine testamentary capacity of testator and whether the will was secured by undue influence, and dismissing an appeal from the register of wills, and admitting the will to probate, William H. Miller appeals. Affirmed.

Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, WALLING, SIMPSON, and KEPHART, JJ.

Ralph B. Evans, of Philadelphia, and John E. Malone, of Lancaster, for appellant.

B. F. Davis and John M. Groff, both of

1. WILLS 316(3)-ISSUE TO DETERMINE UN- Lancaster, for appellees.

DUE INFLUENCE PROPERLY REFUSED.

An issue d. v. n. will not be awarded merely because of the confidential relation existing between decedent and his physician named in the will as the residuary legatee receiving a substantial part of estate, where testamentary capacity is clearly established, and no attempt is made to show that the will was dictated.

2. WILLS 52(2), 163(2)-FACTS IMPOSING
ON PHYSICIAN AS CHIEF LEGATEE BURDEN

OF SHOWING TESTAMENTARY CAPACITY AND
ABSENCE OF UNDUE INFLUENCE.

KEPHART, J. [1] The appellant urges that an issue d. v. n. must be awarded, because the confidential relation existing between the decedent and his physician, who is named in the will as the residuary legatee, receiving a substantial part of the estate, raises a presumption of undue influence, and ipso facto entitles the contestant to an issue. The rule as stated by our brother Moschzisker in Phillips' Estate, 244 Pa. 35, 43, 90 Atl. 457, 460, is as follows:

Where testator, disposing of estate of the value of $6,500, gave his brother and sister "Where a person has testamentary capacity, each $5, and the rest to his physician in trust but is so weak physically or mentally as to be for a young woman who had lived with the tes- susceptible to undue influence, and a substantator until her marriage, $25 a month for life tial part of his estate is left to one occupying and additional money in case of sickness, the a confidential relation to him, the burden is upresidue after her death to the physician on con- on the latter to show that no improper infludition that it be not given to testator's broth- ence controlled the making of the will; * er and sister, the interest received by the phy- but in a case where the decedent's testamensician was sufficient to shift burden to pro-tary capacity is conceded and there is no eviponent to show testamentary capacity, and that no improper influence was exerted.

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dence of weakened intellect, the burden is upon those asserting undue influence to prove it, even where the bulk of the estate is left to one Occupying a confidential relation."

The court will not be astute in determining the extent of interest the confidential advisor must receive in order to raise the presumption. Any appreciable benefit that would ordinarily actuate a mind inclined to exercise

(108 A.)

this control will be sufficient; each case too limited to be considered a test, and are must depend on its own circumstances, as no clearly insufficient to base an opinion upon hard and fast rule can be laid down. Ad- as to the strength of his intellect. He might ams' Estate, 220 Pa. 531, 533, 69 Atl. 989, have had personal reasons why he did not 123 Am. St. Rep. 721. want to answer or make himself understood. The evidence, without apparent contradiction, shows that he was mentally alert. The testimony of the physician who was called in consultation, of those who were in constant attendance, and of the minister who waited on him, is conclusive on this branch of the case. case. The evidence here is not like that in Adams' Estate, 220 Pa. 531, 533, 69 Atl. 989, 123 Am. St. Rep. 721, where an issue was awarded. The testamentary capacity having been clearly established, and no attempt to show that at the time the will was dictated, and for some time thereafter, testator was mentally weak, the proponents of the will have discharged the first burden placed on them.

[2, 3] Joseph Miller died December 17, 1916. His nearest relatives were an adopted daughter and a brother and sister. At the time of his death he was in his seventy-seventh year. On August 31, 1916, he was stricken with paralysis, which resulted in his death. Dr. Kyle, his physician, in response to a call, a short time before this illness, met Mr. Miller in the latter's yard, and was requested to write the will. He then made a note of the testator's instructions on some prescription blanks. Later the will was inartificially and inaccurately drawn by the doctor, signed by the testator making his mark, and attested by two subscribing witnesses. The precise time this was done does not definitely appear. In it he gave to his brother and sister each $5, and the rest of the property to his executor, Dr. Kyle, in trust for Gertie Ruth, who had lived with him from early childhood until her marriage in 1907, a period of 25 years. An allowance of $25 a month was to be paid during her life, with any additional money necessary, in case of sickness, for her comfort. The residue, after Gertie Ruth's death, was bequeathed to Dr. Kyle "to dispose of it as he sees fit, only that none of my estate shall be given my brother and sister, other than what I have directed." The estate was valued at about $6,500. The interest which Dr. Kyle was to receive, though uncertain, was sufficient to raise the presumption, and, under the rule, shift the burden to the proponents of the will to show testamentary capacity and that no improper influence was exerted. There is not a particle of proof to show, at the time the testator met the physician in the yard and directed how the will was to be written, he was not possessed of his full mental faculties; but appellant urges his condition later, after receiving the stroke, weakened his intellect. We have carefully examined the evidence, and find nothing to support that conclusion. Mere old age would not be enough, and while his affliction was enfeebling, striking down, to a certain extent, his power of speech and movement, he was able, with assistance, to get around some and go out in a chair; and, while not able to hold a conversation, he could talk sufficiently to make himself understood, and looked after the ordinary running expenses of the house. The only evidence of mental breakdown was his failure to talk to some of the visitors, or to make himself understood to their satisfaction. Their efforts were

[4, 5] On the second branch of the case, relating to undue influence, the court will consider all the circumstances entering into the life of the deceased at or about the time of the acts complained of as they relate to the duties of and association with his physician. From such life and association it will endeavor to find, from the conduct of both, if there is any ground for belief that improper motives had actuated the advisor. The patient is unconsciously subjected to a feeling of dependency on his physician. His reluctance to make any change, and his desire to cause the doctor to exert extraordinary effort in his behalf, may be seized upon, by one whose professional honor is at low ebb, to create a condition of undue influence to effect a testamentary disposition of property. Evidence of his treatment and conduct, as well as that of the patient, is important in determining whether the testator was easily susceptible to flattery, persuasion, or influence. The mere denial of the physician is not enough. But the entire atmosphere of this case is devoid of any attempt on the part of the physician to exercise control, other than in a professional way, over the decedent. There was not the slightest attempt to show the doctor did anything outside of the ordinary work of a physician promptly attended to; nor was there evidence that those in attendance attempted to influence the testator's mind. It does appear that he was determined to give his property to those who had shown some attention and affection for him during the later period of his life.

The assignments of error are overruled, and the decree of the court below is affirmed at the cost of the appellant.

(265 Pa. 295)

BIRD v. SLEPPY.

fraud, is not a principal defendant to the suit so as to invoke extraterritorial service upon a nonresident defendant under Act April 6,

(Supreme Court of Pennsylvania. June 21, 1859 (P. L. 387).

1919.)

Appeal from Court of Common Pleas,

1. EQUITY 119-CASES IN WHICH EXTRA- Northumberland County.

TERRITORIAL SERVICE OF WRITS PERMITTED.

Under Act April 6, 1859 (P. L. 387) § 1, extraterritorial service of writ may be had in equity causes where the subject-matter is within the jurisdiction of the court, and where jurisdiction of the subject-matter has been acquired by the service of its process on one or more of the principal defendants within the county in which the writ issues; and the court can acquire jurisdiction in the second class' of cases only by service of the kind therein described.

2. EQUITY 119-STATUS OF PRINCIPAL DEFENDANT UNDER EXTRATERRITORIAL PROCESS

QUESTION OF FACT.

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Should one extraterritorially served with a writ under act of April 6, 1859 (P. L. 387) go to trial after objection made or if when made it is dismissed by the court, and no appeal is taken from the order of dismissal, he cannot preserve his position so that his objection to the jurisdiction on that account may be subsequently passed upon by an appellate court, but he will be deemed to have waived it.

4. EQUITY 119 "PRINCIPAL DEFENDANT"

ONE WHOSE PRESENCE IS ESSENTIAL.

A "principal defendant" is one who has an interest in the controversy presented by the bill, and whose presence is requisite to the complete and partial adjudication of the controversy.

5. EQUITY 119-TEST AS TO RIGHT TO EXTRATERRITORIAL SERVICE OF WRIT.

Under Act April 6, 1859 (P. L. 387) § 1, the test for the service of a writ outside the jurisdiction of the court is not the apparent fraud averred in the bill, but what is the relief sought, and whether it necessarily involves rights of the person charged as being the principal defendant, so that his presence is necessary to the validity of a decree, and other

wise he cannot be considered as a principal defendant, though having a secret undisclosed in

terest.

6. EQUITY 119-NONRESIDENT NOT PRINCI

PAL DEFENDANT AUTHORIZING EXTRATERRI-
TORIAL SERVICE.

A resident defendant in a bill to cancel a lease on the ground of fraud, who is not a party to the lease and had no legal rights therein, but who is alleged to have been a party to the

Bill by Christiana C. Bird against Edward W. Sleppy and B. W. Sleppy, Jr. From an order discharging a rule to set aside the service of the bill, defendant B. W. Sleppy, Jr., appeals. Order set aside, rules reinstated and made absolute, and service on B. W. Sleppy, Jr., vacated.

Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, WALLING, SIMPSON, and KEPHART, JJ.

W. A. Valentine, C. D. Coughlin, and B. W. Davis, all of Wilkes-Barre, for appellant.

J. Fred Schaffer, I. Clinton Kline, and J. Howard Rockefeller, all of Sunbury, for appellee.

KEPHART, J. The plaintiff filed a bill against the defendants to cancel a lease on the ground of fraud. Edward W. Sleppy, a resident within Northumberland county, had been served as a principal defendant, and B. W. Sleppy, Jr., was served under the act of 1859. A rule was granted to vacate the latter service, for the reason that Edward was not a principal defendant within the county where the writ issued. This rule was discharged, and an order made conformable to the prayer of the bill; hence this appeal.

[1-3] By section 1 of the act of April 6, 1859 (P. L. 387) extraterritorial service of writs may be had in causes (a) where the subject-matter is within the jurisdiction of the court; (b) where jurisdiction of the subject-matter has been acquired by the service of its process on one or more of the principal defendants within the county in which the writ issues. Eby's Appeal, 70 Pa. 311. The court can acquire jurisdiction in the second class of cases only by a service of the kind therein described. While a bill may aver a state of facts which prima facie · shows a person to be a principal defendant, if, in fact, he is not such defendant and an extraterritorial service is made, which is then challenged by the person served, the status of the "principal defendant," as such, becomes a question of fact for preliminary determination. Should the defendant go to trial after objection made, or if, when made, it is dismissed by the court, and no appeal is taken from the order of dismissal, he cannot preserve his position so that his objection to the jurisdiction on this account may be subsequently passed on by an appellate court; he will be deemed to have waived it. Cullough v. Railway Mail Ass'n, 225 Pa. 118,

Mc

(108 A.)

73 Atl. 1007; Vandersloot v. Pa. W. & P. Co., 259 Pa. 99, 104, 102 Atl. 422. It is in part analogous to the service of a writ in any civil action. Park Bros. & Co. v. Oil City Boiler Works, 204 Pa. 453, 458, 54 Atl. 334. When B. W. Sleppy made his motion to vacate, Edward had filed his separate answer under oath, denying fraud and secret ownership in the subject-matter of the litigation. It was through the affirmation of these allegations in the bill that he was principal defendant; if they were untrue, he was not a principal defendant, nor a defendant in any sense, and, without more than the averment of the bill and the answer of Edward, extraterritorial service could not be made. This practice is not an effort to contradict, by evidence de hors the record, a return of an officer duly constituted by law, but an attempt to controvert the main facts upon the existence of which only can the writ issue. It challenges the status of parties who seek an extraordinary remedy. The court below held that, for the purpose of the motion to vacate, the allegation of the bill must be taken as true. The motion was in no sense in the nature of a demurrer; the separate answer denied, for the purpose of vacating service, the material and only ground on which the writ could issue.

principal defendant, so that his presence is necessary to the validity of the decree? If such decree can be made, effectively answering the prayer for relief, closing all questions with reference to the subject-matter involved, without the joinder of such person as a defendant, he cannot be considered as a principal defendant, though he may have a secret undisclosed interest, which, like any other secret undisclosed interest, is not effective unless asserted in a legal way.

[6] The subject-matter of the bill is the legality of the lease and sublease. The bill prays for cancellation, subrogation, and an order restraining the payment of future royalties. The original lease is not with Edward, but with B. W. Sleppy and the Bird Coal & Iron Company, and the sublease is from the lessee, Sleppy, to Chambers. Edward was not named as a party in either of these leases. There is no allegation in the bill of unfair price or an unadvantageous bargain, and Edward specifically denies, in his separate answer, that he was in any way a party to the agreement, other than the representative of the company. The property affected lies in Centre county, B. W. Sleppy lives in Luzerne county, and the writ issued in Northumberland county. Surely, under this state of the record, Edward had nothing that could be affected by the decree. could not, at any time, be heard to complain of the action of the court, or that he had an

He

[4] The court held, substantially, that the lease was procured through the fraudulent acts of B. W. Sleppy and Edward, and, as Edward was "severally interested to the ex-interest in the subject-matter. Even if he tent of one-half" in the illegal gain from the had an undisclosed interest, the decree would lease, he was a principal defendant. A prin- close the door against any assertion of it. cipal defendant is one who has an interest His joinder was therefore not necessary to in the controversy presented by the bill, and the cancellation of the lease, and the atwhose presence is requisite to the complete or partial adjudication of the controversy. tempt to make him a principal defendant, so "In deciding who ought to be parties, it is as to invoke the extraterritorial feature of necessary to distinguish between active and the act of 1859, that the complainant might passive parties, between those who are so reach into another county and bring to her necessarily involved in the subject in con- home county B. W. Sleppy as defendant, troversy and the relief sought for that no de- must fail. The means by which the comcree can be made without their being before plainant hopes to cancel the lease, or be subthe court, and such as are formal or so far rogated to rights thereunder, and to restrain passive that complete relief can be afforded the defendants, is through fraud. But this is to those who seek it without affecting the evidentiary of the main purpose; and though rights of those who are omitted. *the acts of Edward may be an important and But if a decree can be made without affecting necessary link in the means to accomplish the the rights of a person not made a party, or without his having anything to perform necessary to the perfection of the decree, reason as well as adjudged cases will warrant the court in proceeding without him, if he be not amenable to the process of the court or no beneficial purpose is to be effected by making him a party." Coleman's Appeal, 75 Pa. 441, 459.

**

[5] The test, under the act, for the service of a writ outside the jurisdiction of the court, is not the apparent fraud averred in the bill, but, What is the relief sought, and does the relief prayed for necessarily involve rights of the person charged as being the

end, such connection does not make him a party, any more than it would any other witness connected with the fraudulent scheme, who had been paid cash outright for his illegal acts in securing the lease. B. W. Sleppy was in no sense amenable to the process of the court as a principal defendant in a proceeding where the relief prayed for is such as is contemplated by this bill.

The court erred in giving too much weight to the means by which it was intended to secure the things prayed for, and in not considering, of paramount importance, the end to be accomplished. The order discharging the rules to vacate is set aside, the rules are

reinstated and are herewith made absolute, | ing department who, while engaged in oiling a and the service on B. W. Sleppy, in Luzerne county is vacated, the costs to be paid by the appellee.

(265 Pa. 215)

DUTREY v. PHILADELPHIA & R. RY.
CO.

(Supreme Court of Pennsylvania. June 21, 1919.)

1. MASTER AND SERVANT 204(1)-FEDERAL
EMPLOYERS' LIABILITY ACT PRESERVES DE-

FENSE OF ASSUMPTION OF RISK EXCEPT
WHERE STATUTE VIOLATED.

Except as to injuries resulting from violation of a statute enacted for the safety of employés, as provided by Employers' Liability Act 1908, § 4 (U. S. Comp. St. § 8660), the commonlaw doctrine of assumption of risk is a complete defense to an action under that statute.

2. MASTER AND SERVANT 217(1)-EXPERIENCED EMPLOYÉ ASSUMES INCIDENTAL RISKS

THOUGH NOT KNOWN TO HIM.

switch, was run over by a "helper" engine moving backwards, held, on the evidence, that the assumption of risk was not so obvious as to bring it within the class of cases where it becomes the duty of court to declare a risk assumed as a matter of law.

8. MASTER AND SERVANT

213(4)-REPAIR

MAN OILING SWITCH HELD NOT TO ASSUME
RISK OF INJURY FROM ENGINE BACKING
WITHOUT WARNING.

In action under Employers' Liability Act 1908 (U. S. Comp. St. §§ 8657-8665) to recover for the death of a repair man in the interlocking department who, while engaged in oiling a switch, was run over by a "helper" engine running backwards, the failure of the engineer to give the customary warning was an unusual and unexpected act, not to be ordinarily foreseen, and the risk of which was not assumed by the employé.

Appeal from Court of Common Pleas, Cumberland County; S. B. Sadler, Judge.

tratrix of Raymond M. Dutrey, deceased, Trespass by Florence G. Dutrey, adminisagainst the Philadelphia & Reading Railway

The employé assumes as a risk of his employ- Company to recover damages for the death ment such dangers as are normally or neces- of plaintiff's husband. Verdict and judgment sarily incident to his occupation, and a work-for plaintiff for $2,000, motion for judgment man of mature years is taken to assume them n. o. v. overruled, and defendant appeals. whether he is aware of their existence or not. Affirmed.

3. MASTER AND SERVANT ~217(1)—UNUSUAL Argued before BROWN, C. J., and FRA-
AND EXTRAORDINARY RISKS NOT ASSUMED UN-ZER, WALLING, SIMPSON, and KEP-
LESS KNOWN TO EMPLOYÉ.
HART, JJ.

The unusual, extraordinary, and unexpected acts not naturally incident to the occupation, and which may arise out of the employer's failure to exercise due care, are not assumed by the employé until he becomes aware of their existence, unless the act or risk is so obvious that an ordinarily prudent person should have observed and appreciated it.

4. MASTER AND SERVANT

288(1)—ASSUMP

TION OF RISK IS QUESTION FOR JURY.

It is only in a clear case that the question of the assumption of risk is one of law for the court, and where there is doubt as to the facts or as to the inferences to be drawn therefrom, it is a question for the jury. 5. MASTER AND SERVANT

265(13)-BURDEN OF PROVING ASSUMPTION OF RISK ON DEFEND

ANT.

J. W. Wetzel, of Carlisle, for appellant. E. M. Biddle, Jr., of Philadelphia, and Herman Berg, Jr., of Carlisle, for appellee.

KEPHART, J. This was an action brought under the federal Employers' Liability Act of 1908 (U. S. Comp. St. §§ 8657-8665) by the appellee to recover for the death of her husband. The sole question for determination, as stated by the appellant, is: Does the testimony in the case show such a failure on the part of the company to exercise a duty owing to the defendant at the time of the accident as would overcome the risk assumed

by him, and thus bring the case within the federal statute; or, stated in another form, was the negligent act complained of likely to happen, or so obvious that the decedent must have known, or as a reasonably careful per6. MASTER AND SERVANT 203(3)-SERVANT son should have known, of it, and anticipated

The burden of proof as to assumption of

risk is on the defendant.

DOES NOT ASSUME EXTRAORDINARY RISKS.

what happened, so that the court might say, as a matter of law, it was among the risks assumed, and for that reason his representa

Ordinarily a servant assumes the risks incident to the negligent acts of the officers, agents, and fellow employés of the master, but not the risks of unusual and extraordinary acts of neg-tive could not recover? By section 1 of the ligence.

7. MASTER AND SERVANT 288(3)—REPAIR MAN OILING SWITCH HELD NOT AS MATTER

OF LAW TO ASSUME RISK OF INJURIES FROM

PASSING ENGINE.

Employers' Liability Act a right of action is conferred on those injured engaged in interstate service by reason of negligence (1) of the employer, agents, employés, or fellow servants, (2) in providing insufficient or deIn action under Employers' Liability Act fective appliances. Injuries not due to negli1908 (U. S. Comp. St. §§ 8657-8665) for the gence are excluded. By section 3 contribudeath of a repair man engaged in the interlock-tory negligence of the injured person is not a

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