was induced to allow him one-half of the profits (see Exhibit No. 16, dated October 5, 1895); and Parkinson, by his letter of August 19th to Linton, showed a disposition to turn his back on Frazer. Parkinson and Linton, however, continued for some time thereafter acting and working together to secure a purchaser for the coal. Parkinson's last letter on the subject was dated August 30th (Exhibit 10). After this date, Linton and McWilliams conducted the negotiations, entirely ignoring both Frazer and Parkinson, obtained a renewal of option of the Brown and McKee tract, but with terms somewhat different from the original option, and finally a sale was consummated. It is true that, to accomplish this end, there were changes made in the terms of the original option, and some additional coal optioned or contracted for by Linton, and put into the transaction, to secure the purchaser represented by McWilliams; and through this means (through the intervention of McWilliams) a sale of the lands was made to a certain Johnson Coal Company at prices in advance of the prices fixed in the said options, and defendant realized considerable profit therefrom. There is no evidence that Linton at any time during the negotiations for sale of the coal notified either Parkinson or Frazer that they were no longer in the transaction, or that he desired or he intended to conduct the transactions upon his sole responsibility, or that they were no longer to be interested in the transaction."

Law of the Case.

"We think the evidence sufficiently shows that the plaintiffs and defendant, by agreement, entered into an arrangement by which their labor and skill were engaged in a common enterprise; and that they were to divide the profits therein constitutes, as between them (Parkinson, Frazer, and Linton), a partnership therein. In pursuance of this arrangement the parties began to operate to secure the land contemplated. Frazer, through Strickler, induced McWilliams to go to see the land. Linton meets him, and they go together to Brown, and get an extension of the option. Parkinson is in constant communication with Linton in regard to the matter till August 30th. And then it appears that Linton, without com. municating the facts to either Frazer or Parkin son, undertook to conduct the business thereafter upon his own responsibility and in his own way, ignoring entirely the rights of Parkinson and Frazer, and with the intention of securing all the profits of the joint enterprise to himself. This, we think, he had no right to do, and that he is therefore liable to account to Parkinson and Frazer for one-half of the profits of the transaction which he made. It might be for two-thirds, but as plaintiffs only claim one-half of the net profits in their bill, and Linton avers that the arrangement made at the Seventh Avenue Hotel, while it differs radically from that alleged by plain

tiffs in other respects, was upon the basis of one-half of the profits to him and one-half to the others, we adjudge that defendant account for only one-half of his net profits. We are of the opinion, however, that there is no evidence justifying the conclusion that H. W. Strickler ever was in any sense a partner with defendant, and therefore the bill is dismissed as to him. The points to which answers are attached, submitted by plaintiffs, are affirmed, except so far as affects H. W. Strickler. So far as he is concerned, the first point is refused. Let a decree be prepared, sec. reg., directing defendant to pay W. E. Frazer, Jr., and W. Y. Parkinson, plaintiffs to this suit, the one-half of $1,004.74, with interest thereon from April 1, 1896, payable forthwith, and also the one-half of the amounts now paid or hereafter received by defendant on account of the four notes received by him from the Johnson Coal Company on account of his share of profits arising out of the sale of coal lands described in plaintiffs' bill from them to him, as the said notes mature and are paid to defendant."

Decree.

"And now, October 26, 1896, this cause having been fully heard by the court upon bill, answer, and evidence produced, and argued by counsel, and the court having found and declared that a partnership was formed and existed between the plaintiffs, W. E. Frazer, Jr., and W. Y. Parkinson, and the defendant, Robert J. Linton, for the sale of certain coal lands, and that the profits derived from such sale by defendant amount to the sum of five thousand and twenty-three and 70/100 dollars, of which defendant has received the sum of $1,004.74, and has also received four notes of the Johnson Coal Company, each for the sum of $1,004.74, with interest, payable in one, two, three, and four years, respectively (said four notes being secured by mortgage of the said Johnson Coal Company against coal lands in Fayette county, Pennsylvania); and the court having further found and declared that the defendant was liable to the plaintiffs for the one-half of the said profits, to wit, the sum of twenty-five hundred and eleven and 85/100 dollars ($2,511.85),-it is therefore ordered and decreed that the defendant forthwith pay the plaintiffs the one-half of the cash received by him aforesaid, to wit, $502.37, with interest from April 1, 1896, and that the defendant also pay to plaintiffs the one-half of the amount now paid or hereafter received by defendant on account of the four notes received by him from the Johnson Coal Company on account of his share of profits arising out of the sale of coal lands described in plaintiffs' bill, from time to time as the said notes mature and are paid to him; and it is further ordered and decreed that defendant pay the costs of this proceeding."

Assignments of Error.

"First. The court below erred in affirming the plaintiffs' first point, which point and the

'(2)

answer thereto are as follows, to wit: "The arrangement entered into between the plaintiffs and the defendant for the sale of the coal and division of the profits constituted a partnership for a single transaction; the parties being the plaintiffs, W. E. Frazer, W. Y. Parkinson, and H. W. Strickler, and the defendant, R. J. Linton. Affirmed, except as to Strickler.' Second. The court below erred in affirming the plaintiffs' second point, which point and the answer thereto are as follows, to wit: There having been no definite arrangement as to the division of the profits, the presumption of law would be that the profits were to be equally divided; and the plaintiffs, among themselves, being jointly interested, and their joint interests being represented by the plaintiff Frazer at the making of the agreement, plaintiffs are jointly entitled to one-half of the profits, and defendant is entitled to the other cne-half. Affirmed.' Third. The court below erred in affirming the plaintiffs' third point, which point and the answer thereto are as follows, to wit: '(3) The defendant, Linton, is liable to the plaintiffs for one-half of the profits realized by him, being the sum of $2,511.85. Affirmed.' Fourth. The court below erred in entering the following decree, to wit: [Setting out decree.] Fifth. The court erred in not entering a decree dismissing the plaintiffs' bill. Sixth. The court below erred in excluding appellant's offer of testimony by Levi J. Jeffries, as follows: 'Counsel for defendant proposes to prove by the witness on the stand, for the purpose of corroborating the defendant by a statement of his declaration to the witness prior to any difference between him and the plaintiff, or the moving of litigation here, that within a day or two after August 12, 1895, the date of the alleged agreement at the Seventh Avenue Hotel, the defendant told the witness, as his confidential business adviser, the agreement that he had made with the plaintiff and Parkinson at the Seventh Avenue Hotel on August 12, 1895, and what the terms of that agreement were, and particularly that the plaintiff and Parkinson had a purchaser, who was mentioned Browns, of Buffalo, or Brown Bros., of Buffalo, at the price of $140 an acre, and that the agreement was, in the event of the plaintiff and Parkinson producing that purchaser at that price, that the defendant, Frazer, and Parkinson were to share the profits equally between them, one-third to each, and that the profits so to be divided would be in the neighborhood of $40,000.00. (Objected to as incompetent. Objection sustained and bill sealed for defendant.)" "

as the

D. F. Patterson, for appellant. R. B. Petty, for appellees.

PER CURIAM. We find no error in the decree, or in the rulings of the court leading up thereto. The defendant's offer, covered by the last specification, was rightly excluded for the reason that the proposed testimony was

TRIAL-TAKING CASE FROM JURY.

Judgment cannot be disturbed, the only ror assigned being the refusal to charge "t under all the evidence *** the verd should be for the defendant," and there be testimony from which all the material fa could be found for plaintiff.

Appeal from court of common pleas, A gheny county.

Action by Mollie Woelfel against the F eral Street & Pleasant Valley Passenger R way Company for death of plaintiff's 1 band, killed by a collision between his wa and one of the cars of defendant. Judgm for plaintiff. Defendant appeals.

Affirn

Stone & Potter, for appellant. J. A. La fitt, for appellee.

PER CURIAM. The only error assigne this case is the refusal of the court to cha as requested in defendant's point, "that der all the evidence* * * the ver should be for the defendant." There is notl in the record to sustain this specification. the contrary, it clearly appears that there testimony, bearing on the questions of in issue, which it was the plain duty of court to submit to the jury; and that was cordingly done, with instructions to which exception appears to have been taken. result was a verdict in favor of the plaintiff, impliedly finding that the material facts were as claimed by her. In view of all the testimony, it would have been plain error to have withdrawn the case from the jury by affirming the point in question. There is nothing The in the case that requires discussion. specification of error is dismissed and the judgment affirmed.

The

BOYD v. BOROUGH OF WILKINSBURG. (Supreme Court of Pennsylvania. Nov. 8, 1897.)

STREET IMPROVEMENTS-ASSESSMENT OF BENEFITS -EVIDENCE.

A property owner who appeals from an assessment of benefits for the cost of a street improvement, and admits that the improvement as a whole has benefited his land to the amount assessed against it, cannot show that such property was not specially benefited by the improvement of a part of the street not adjoining the

same.

of the court below are so obviously correct that neither of the questions involved requires discussion. Judgment affirmed.

CURRY V. PATTERSON.

(Supreme Court of Pennsylvania. Nov. 8, 1897.)

DEVISE-FEE SIMPLE.

Testatrix, after devising certain land to her son in fee simple by apt words, provided, "The residue of my real estate ** I will that my son * ** have all the income or emoluments arising from the same during his natural life," except enough to pay her debts and funeral expenses and to keep the property in repair, "and at his death the same shall descend to his heirs." Held, that he was also given the residue in fee simple.

Appeal from court of common pleas, Allegheny county.

Case stated between Frank Curry, as plaintiff, and Edmund B. Patterson, as defendant. Judgment for plaintiff. Defendant appeals. Defendant appeals. Affirmed.

The opinion of the court below is as follows: "The first clause of the will is as follows: 'First of all, I direct that all my just debts and funeral expenses be paid, together with the costs of a burial lot and a suitable monument * * out of rents accruing from real estate of which I may be seised at death. Second. I give and bequeath unto my son, Frank Curry, seven acres of ground *

in fee simple. Third. The residue of my real estate, known as seven acres (pasture lot), also two houses and lots on Ohio street, I will that my son, Frank Curry, have all the income or emoluments arising from the same during his natural lifetime, except so much of sd. income as may be necessary to carry out the provisions of the first article of my will, and the payment of such sums to keep said property in good repair, together with all taxes assessed on the same; and at his death the same shall descend to his heirs.' No disposition is made of personal property, and no executor is named. The question is whether Frank Curry, the plaintiff, has a fee-simple title. We think this case is clearly within the principles of Hiester v. Yerger, 166 Pa. St. 445, 31 Atl. 122, and the cases upon which it was ruled. By devise of rents, profits, and income of lands the corpus of the estate passes. Silknitter's Appeal, 45 Pa. St. 365; Wilson v. McKeehan, 53 Pa. St. 79; Drusadow v. Wilde, 63 Pa. St. 170; Dale v. Dale, 13 Pa. St. 446. The fact that the gift was charged with the payment of debts and other expenses would not tend to lessen the estate, but rather to enlarge it. Such a charge was held to indicate an intention to grant a fee simple without words of inheritance, before the passage of Act April 8, 1833, § 9, giving such an effect to a general devise.

No other person is, or can become, interested in the income of this estate; and the amount to be expended, except for payment of debts, is left to the discretion of the devisee. There can be no doubt that the plaintiff took a life estate in the lots mentioned. In this case there is no devise over. There is no devise of the remainder at all. It is simply provided that at the death of the life tenant 'the same shall descend to his heirs.' Not only as to the persons to take, but as to the mode of taking, the words are strictly technical. "Technical words, or words of a definite meaning, in a will, must be construed according to their legal or definite effect, unless from other inconsistent words in the will it be clear that the testator intended to use them in some other definite sense.' Carroll v. Burns, 108 Pa. St. 386. In most of the cases in which the question has been considered there was a specific devise to heirs, and in many of them qualifying words, -as in Criswell's Appeal, 41 Pa. St. 288, 'to their heirs jointly, to such of them as be then living'; in Appeal of Cockins, 111 Pa. St. 26, 2 Atl. 363, 'in equal amounts to all heirs living at the time of their deaths'; in Hiester v. Yerger, 166 Pa. St. 445, 31 Atl. 122, 'unto his then surviving heirs in fee simple.' In these and many other cases the rule in Shelley's Case was held to apply, and to create an estate in fee simple; and surely it must be applicable to this case, in which the words are unqualified, are purely technical, and have a welldefined legal meaning. The rule in Shelley's Case is applicable without regard to the actual intent of the testator. Carroll v. Burns, 108

Pa. St. 394. But in this case it is questionable whether the actual intent of the testator was different from the legal effect. All her real estate was given to her son, and the personal estate, if any, passed to him under the intestate laws. The only doubt arises from the fact that in the second clause of the will she devised to him one piece of ground in fee simple by apt words. Her purpose in not doing so, as to the residue, is not apparent, but it is probable that she had some undefined notion that it should be held until the debts and the cost of a burial lot and monument were paid out of the income. However this may be, the estate granted is clearly a fee-simple estate, which the plaintiff has the right to convey, and judgment must be entered in favor of plaintiff on the case stated."

Edmund B. Patterson, in pro. per. George D. Riddle, for appellee.

PER CURIAM. The facts upon which this contention depends are set forth in the case stated, and need not be repeated. As to the questions arising upon those facts, all that need be said will be found in the opinion of the learned judge of the common pleas. On that opinion the judgment is affirmed.

CRAWFORD v. BELLEVUE & G. NATURAL GAS CO.

(Supreme Court of Pennsylvania. Nov. 8, 1897.)

WRITTEN LEASE-PAROL MODIFICATION.

A written lease granted to the lessee the right to produce gas from certain land, and to hold such premises for one year, the lessor to extend. the lease from year to year in case the lessee found gas in paying quantities within said year. The lessee agreed to pay a specified royalty every six months should gas be obtained in paying quantities and marketed, and to furnish gas for the lessor's house. If sufficient gas was found for domestic, but not for marketable, purposes, the lessee was to leave the well for the use of the lessor. Held, that it was competent for the lessee to show a parol modification of such contract, whereby he was released from payment of royalties.

Appeal from court of common pleas, Allegheny county.

Assumpsit by J. M. Crawford, Jr., devisee of J. M. Crawford, against the Bellevue & Glenfield Natural Gas Company, to recover on a written lease. From a judgment for defendant, plaintiff appeals. Affirmed.

The following are the material parts of the lease, and the points submitted by plaintiff, the refusal of which is assigned, inter alia, as

error:

Lease.

"This lease, made this 28th day of November, A. D. 1887, between J. M. Crawford, of Ohio township, of Allegheny county, Pennsylvania, first part, and G. H. Dimmick, of Allegheny county, Pennsylvania, second part, witnesseth: That the said first party, in consideration of the covenants, stipulations, and rents to be kept, fulfilled, and paid by the second party, has granted, demised, and let unto the second party the sole right to produce petroleum and natural gas from the following named tract of land, situate in Ohio township, Allegheny county, and state of Pennsylvania, bounded and described as follows, to wit: ***. To have and to hold the said premises unto the second party for and during the term of one year from this date, and granting to second party the exclusive right to drill and operate oil and gas wells. It is further agreed that, should a paying production of oil or gas be found on said land by second party within said term of one year, then first party agrees to extend this lease from year to year so long as said production - continues. The second party hereby agrees, in further consideration for this lease, to deliver unto the said first party the full one-eighth (%) part of all the oil he may produce and save from said land, to be delivered in pipe line free of charge to first party. It is further agreed that if gas is obtained in paying quantities, and marketed, the consid-eration in full to the first party shall be two hundred and fifty dollars every six months for each well drilled on the premises herein leased. Second party also agrees that first party may use gas free of charge for

*

domestic purposes at the farm house of himself and his son Aleck from any productive gas well found on said land, the second party to give use of pipe free which may be necessary to convey the gas from the well to said houses. A failure to make any payment or to operate as above provided renders this lease null and void. In case gas is found sufficient for domestic purposes of first party, but not sufficient for marketable purposes, second party agrees to leave such well for use of first party, so that small pipe can be put into it.

Points submitted orally by counsel for plaintiff:

"First. It being admitted that the defendant entered into possession under an agree ment dated November 28, 1887, between J. M. Crawford, Sr., and G. H. Dimmick, and the defense being a subsequent modification of such agreement, whereby defendant was relieved from the payment of royalty, such subsequent agreement is required by the statute of frauds to be in writing; and, the defendant, not having shown any such writing, the plaintiff is entitled to a verdict. [Refused.] Second. That a parol modification of a contract in writing must be clearly and distinctly proven, and that the evidence in this case is not sufficient to show such clear and distinct agreement, and the verdict should therefore be for plaintiff. [Refused.] Third. That, under all the evidence in this case, the verdict should be for plaintiff. [Refused.]"

R. B. Petty, for appellant. J. S. & E. G. Ferguson, M. A. Woodward, and E. G. Hartje, for appellee.