Ryder v. Lutz.

automobile, whereas on a motion to quash he, the plaintiff, would have had other remedies to enforce his claim. Having taken his chance on a favorable verdict, he cannot now complain, since it was against him. He might even have made this motion to quash at the trial of the case. In Taylor v. Ellis, 200 Pa. 191, the Supreme Court have decided that a defendant may make the fact that the goods are in the custody of the law a matter of defense at the trial where the Court previously had refused to quash the writ for that reason. That case, however, was tried before the Act of 1901, requiring all matters of defense to appear in the pleadings, was passed. Under it the defendant might have made it a matter of defense had he stated it in his affidavit of defense as a defense, but not having done so he was precluded from doing so at the trial.

We are satisfied that no error was committed at the trial, and also that the defendant is not entitled to judgment n. o. v. We, therefore, discharge both rules.

NOTE. This case has been appealed.

Orphans' Court of Lancaster County

Estate of Roland H. Brubaker, dec'd.

Issue d. v. n.-When will not be allowed-Undue influence.

To successfully attack, on the ground of undue influence, the will of one in health and of a positive and assertive nature, clear and convincing evidence is necessary.

An appeal from the granting of letters testamentary should be dismissed and an issue devisavit vel non refused where the testator, a man of positive character and unusual vigor, over eighty-two years of age, was active in business until two months before his death, and made his will three months, and a codicil nine days before his death in which the legacies to the contestants were enlarged, his chief beneficiary and residuary legatee accused of undue influence being a niece of his wife who had been raised in his family, there being no children, and the contestants being children of a half-brother, and where there was nothing unusual or unnatural in the disposition of his estate, and nothing was shown to connect his wife's niece with the testator's conduct in the disposition of the estate, but only evidence of some of her actions showing ill-feeling toward his relatives and remarks boasting of influence over the testator, and remarks of the testator some time before the will was made to the effect that she would not get the residue of his estate. Petition for issue d. v. n. January Term, 1920, No. 77. Bernard J. Myers, for petition.

John A. Coyle, contra.

March 24, 1921. Opinion by SMITH, P. J.

Roland H. Brubaker made his will October 4, 1919. He supplemented it by a codicil on December 30, 1919. He died January 8, 1920. His nearest of kin were children of brothers of the half-blood. His chief beneficiary is Mary Rue Bard Brenneman, a niece of his wife, whom his wife and he nurtured as a daughter from the time she was

Estate of Roland H. Brubaker, dec'd.

three years old until she married. The validity of his will is contested on the ground of fraud and undue influence attributed to her. Nothing was offered in support of the allegation of fraud.

To successfully attack on the ground of undue influence the will of one in health and of a positive and assertive nature, clear and convincing evidence is necessary. It has been shown that Roland H. Brubaker was a man of that type, and until his last sickness his energy was untiring and his agility conspicuous. Within the scope of his activities he was regarded as being of a preeminent class. He was over eighty-two years old when he died, and until the sixth of November preceding his death he was daily actively engaged as the president of the Conestoga National Bank and the vice-president of the Union Stock Yards Company. Even during his last illness his mental vigor seemed unabated and his superior judgment was sought. The officers of the Conestoga Bank visited his sick room, asking his counsel and advice, and during the month preceding his death he conducted a responsible transaction in behalf of the bank with a gentleman with whom he had previously consummated deals amounting to twenty millions of dollars, and he testified that the testator drove a keen bargain and got the best out of it. Previous to and during this period his attending physician had prohibited admission to his room by any one other than his attendants or nurses. An exception was permitted only when his guidance was believed to be necessary in matters relating to the bank.

After his wife's death he prevailed upon "our Mary," as he spoke of Mary Rue Bard Brenneman, and her husband, to make their home with him, which they did, and they remained until he died. He had a deep affection for her. On the occasion of him destroying an earlier will he became so much agitated that he was unable to sleep the following night by reason of the thought of the possibility of him dying without a will, in which event, he said, Mary could not have participated in the enjoyment of his estate. So impatient and concerned was he that the following day he made his will, notwithstanding his counsel whom he wished to have write it was unable to meet him.

The disposition of his estate was a cause of concern to him and he spoke of it to some of his friends. From these conversations they might have fairly inferred that it would have been different from what it is. None of them, however, could have distorted his words into an expression unfavorable to Mary. They might have formed the opinion that the provision for her would have been in the nature of a trust for life instead of only a part thereof being thus limited. It is likely while contemplating a will he followed a habit of conduct usual upon approaching a grave decision-discuss it with those whom he chose and after hearing their opinions and suggestions make a decision which to him seemed advisable, and which in this matter no doubt was consistent with the intention expressed by his will.

It is not pretended that there was any force present at the time the will was executed which influenced him. Admitting the testimony offered by the contestants to be indisputable, what justification can there be for declaring that he at any time was the victim of an undue influ

Estate of Roland H. Brubaker, dec'd.

ence? Suppose, for any reason the imagination may conjure, that Mrs. Brenneman did not admit to his house a daughter of his half-brother, this act, though attributing to her the most sordid motives, in no way could have exerted an undue influence over the testator. That she showed "grave concern over the coming of certain cousins of the testator and said, "They were after his money," may be a correct psychological deduction, but it is without potency as far as the testator is concerned. Her saying she would not remain with him if she could not have something for which she had asked, but which had nothing to do with the disposition of his estate, has the sound of a petulant child. It was argued that this was a threat. Whatever it was, it shows that she was not coddling the testator and trying to curry favor. That she said, "I know how to work him and I can get anything I want," the testimony shows was a speech referring to the obtaining of needful things for the house and housekeeping. That she said to Mrs. Mittel"Yes, Uncle Rol said you were to have the house, but I didn't say you were to have it," and she did not get it, is evidence of a silly boast: and if she had attempted to influence the testator in this matter it probably would have reacted and excited in him a prejudice against her. Even though some time before he made his will he said that Mary would not get the residue of his estate " as she did not deserve it," when he came to have his will written his affection for her evidently had revived and he emphatically denied any intention consistent with the thought prompted by that impulsive utterance. It is not remarkable or unusual for one to change one's mind. The testator the day before he made his last will destroyed one which he had previously made, and even his last will was not entirely satisfactory, for when his vitality was low, being only nine days before he died, when he would have been little able to resist pressure or persuasion, he added a codicil to it whereby legacies to the contestants and to others were enlarged, thereby repelling the idea of an influence hostile to them. In addition to the legacies to them, in both the will and the codicil, they are of the remaindermen of a trust fund of fifty thousand dollars which will be distributable upon the death of the life beneficiary.

The will demonstrates a normal mind. There is nothing unusual or unnatural in the way the testator parcelled his estate. The reverse could be claimed had he not provided liberally for Mary. It is needless to consider a condition where a substantial dispute arises over a material question as every question has been resolved in favor of the contestants, and they fall far short of what is necessary to set aside a will. There is not a scintilla of testimony connecting Mary Rue Bard Brenneman with testator's conduct in the disposition of his estate, nor is there any evidence of any static influence inconsistent with that emanating from affection. Not any one thing testified to as having been done or said nor all of them together would be permitted to impeach the testamentary act. By reason of them the Court could not allow a verdict against the validity of the will to stand.

Therefore the appeal is dismissed and the issue devisavit vel non is refused. Costs to be paid by the petitioners.

C. P. AND Q. S. OPINIONS.

Saturday, March 5th, 1921.

By JUDGE HASSLER.

John W. Eshleman v. Grey Iron Castings Co., G. Ellsworth Higgins et al. Demurrer of Grey Iron Castings Co. sustained.

Same v. Same.

Same v. Same.

ants, dismissed.

Rule to vacate order of service discharged.

Demurrer of W. A. Coventry, one of the defend

Same v. Same. Rule to vacate order of service discharged. Demurrer of W. A. Coventry, one of the defendants, dismissed.

Saturday, March 26, 1921.

By JUDGE LANDIS:

Harold G. Ripple, Atty. of Lena Miedl v. Theodore Wolf. Rule to interplead discharged.

Felix S. Bentzel v. Conestoga Traction Co. Rule to strike off non-suit discharged.

Mary C. Schum and Walter R. Schnader, trading as Philip Schum Son & Co. Rule for judgment on affidavit of defense discharged.

Lonker & Stevens v. A. B. Cohen. Rule for judgment for want of a sufficient affidavit of defense made absolute and judgment for plaintiff for $151.47.

Jacob H. Zeigler v. Abraham L. Hoffman. Bill in equity dismissed.

Commonwealth v. John Reinhold. Rule for a new trial discharged.

SUPERIOR COURT OPINIONS.

Saturday, March 5, 1921.

By PORTER, J.:

Court of Quarter Sessions of Lancaster County

Commonwealth v. Kronberg (No. 1).

Indictment-False pretense - False representations as to quality of goods by seller.

False representations by a seller that a suit of clothes was made of wool and fitted properly" will not sustain an indictment for false pretense.

Indictment for false pretense. Demurrer. September Term, 1920, No. 21.

B. F. Davis, for demurrer.

John E. Malone and Wm. C. Rehm, Dist. Atty., contra.

December 24, 1920. Opinion by LANDIS, P. J.

The indictment in this case avers that the defendant, on or about June 2, 1920, "unlawfully and knowingly devising and intending to cheat and defraud John W. Reese of his goods, moneys, chattels and property, did then and there unlawfully, knowingly and designedly pretend to the said John W. Reese that a certain suit of clothes which he then and there was selling to the said John W. Reese was made of wool and fitted properly, whereas in truth and in fact the said suit of clothes was not made of wool and was not fitted properly, as he, the said S. Kronberg, then and there well knew," &c. The defendant has filed a demurrer, and the only question is whether under such conditions a criminal prosecution for false pretense can be maintained.

In Commonwealth v. Jacob Hoover, 6 LANC. LAW REVIEW 129, it was charged that the defendant " unlawfully did falsely and designedly pretend . . . that a certain horse which the said Jacob Hoover

sold to... Bankson H. Smith was a safe and sound family horse that any woman or child could safely drive, whereas in truth and fact the said horse was not a safe and sound family horse that any woman or child could safely drive, but was a vicious dumb and unsound horse." A demurrer was filed to this indictment, which on hearing was sustained. Judge Livingston, delivering the opinion of the Court, said: "These alleged lies were told in the making of a contract for the sale and purchase of a horse in the transaction of business, in which the purchaser, as a man of ordinary caution, might have obtained indemnity by requiring a proper warranty from the vendor. . . . This case properly belongs to the civil side of the Court." In Commonwealth v. Barker, 8 Phila. 613, Judge Allison charged the jury to the effect that "the statement upon the faith of which property was parted with must be one of possession of property by the defendant as a basis of credit, which proves untrue; the representation must be such as to cause the party deceived to believe the defendant responsible in substance for the credit given him. A mere naked lie, void of such representations of property responsibility, was not sufficient to sustain the charge." In 19 Cyc. 400 it is stated that, "where the representations are as to the quality of the goods sold, they are not within the statute, unless they amount to statements of specific facts in regard to the goods, or unless VOL. XXXVII, No. 76