Appeal from Orphans' Court, Lackawanna | the handwriting of the decedent, and being tesCounty. In the matter of the estate of James Brennan, deceased. From a decree dismissing an appeal from a decision of the register of wills refusing to admit a paper to probate as the last will and testament of James Brenthe last will and testament of James Brennan, Michael Brennan appeals. Affirmed. The Appeal from the register of wills. following paper was offered for probate: "Carbondale "Michael iam owen afew dollars Hear to different persons and ihope that you will pay it for me as there is no one else that I could dependon John Williams Cosby $8.00 7.75 ther is afew dollars owen to Andred Watt idonot know how Muchit is there is a few dollars to tommy Voyle iam owen A man from binghamton $6 dollars for abarrel of beer His nameis white if i cannot pay this before i die those two little bys will healp you to pay it there is afew Dollars owen t aman that cept in Clarks coal office-his name is goodridge pay this for me and god will Bless you, the you can have this house when those little girl is doing for them Selves it is apoor legacy that ihave to lave after me "Your misserable father." The register of wills refused to admit it to probate. Upon appeal to the orphans' court, Sando, P. J., filed the following opinion: This is a proceeding on an appeal from the refusal of the register of wills to admit to probate a paper in writing as the last will of James Brennan, deceased. James Brennan died on or about the 9th day of April, 1873, leaving to survive him eight children. At the time of his death he was the owner of a piece of real estate in the city of Carbondale. In September, 1910, a paper was produced to the register for probate. It was in part as follows: * * * * * "C C Carbondale. "Michael i am owen a few dollars here to different persons and i hope that you will pay it for me as there is no one else that I could depend on pay this for me and God will bless you can have this house * * it is a poor legacy that i have to leave after me. Your miserable father." When this paper was offered before the register as a will, it was refused probate by him, and we are now asked to sustain an appeal from his decision. At the hearing on the appeal Elizabeth Brennan, a daughter of the decedent, and a sister of the appellant, testified, in substance, when shown the paper: I showed that paper to my brother Michael and gave it to him; my father told me where I could get it in a dresser drawer in the house, and if anything should happen to him that I should hand it to my brother; that this was about a month before her father's death; that it was sealed in an envelope; that it is all in her father's handwriting; that after her father's death she gave it to her brother; that she was about 25 or 26 years of age at the time of her father's death; and, that the paper was in the dresser drawer "not longer than a month" before her father died. Michael Brennan testified in part: That after his father was buried his sister gave him the paper, "it might be a week after," and that it is all in his father's handwriting. A nephew who had been associated in business with him, and an old friend of the decedent, both testified that the paper was in the handwriting of the decedent. [1] It being undisputed that the paper is in tamentary in character, the only question left upon its validity as a will is the sufficiency of the statutory requirements in the matter of its execution. The form of the instrument is immaterial if its substance is testamentary. But a letter, as in this case, like any other instrument, to take effect as a will, must be executed in compliance with the requirements of the statute. [2] The act of April 8, 1833 (P. L. 249) § 6, relating to wills, requires, among other things, "that every will shall be in writing, and unless the person making the same shall be prevented by the extremity of his last sickness, shall be signed by him at the end thereof, or by some person in his presence, and by his express direction, and in all cases shall be proved by the oaths or affirmations of two or more competent witnesses, otherwise such will shall be of no effect." Prior to the passage of this act, a will in writing proved by two or more witnesses, although unsigned by the testator, was sufficient to pass real or personal estate. The act of 1833 changed this rule so far as to make the signature necessary unless the testator was prevented by the extremity of last sickness from signing. Butler's Estate, 223 Pa. 252, 72 Atl. 508. [3] As the act requires signing, the courts have no power to dispense with it, or to substitute something else for it, which they might regard as analogous, or very nearly the same otherwise the instrument cannot be probated as thing. The requirements must be fully met: a will. Wall v. Wall, 123 Pa. 545, 16 Atl. 598, 10 Am. St. Rep. 549. The question as to what formalities are essential to the execution of the will is one of law. The question whether these formalities have been actually complied with is one of fact. [4] As to what amounts to a signing by a testator, in Gardner on Wills, at page 205, we find this rule stated: "Any completed mark. or design made by the testator upon the material on which the will is written, with the intention that it shall, as a symbol, stand for or represent the testator as the written name would do, is as sufficient a signing as is the writing of the signature in full." It is necessary, however, to understand the meaning of our act of 1833 in order to comprehend the import of the question we have under consideration. A testator need not sign with his own hand; he may, if he choose, direct another to do so for him in his presence, and the signing is sufficient, and that, too, although the testator is able to write his name. Main v. Ryder, 84 Pa. 217. In the absence of any reason for signing his name, it would be better that he should do so. If his handwriting is well known, there could be less difficulty in proving his will; and there may be other reasons. The provision which permits another person to sign for him is manifestly of most value to those who cannot sign for themselves. But the wording of the act applies equally to all persons, whether they can sign their names or not. The statute also requires that the will should be signed at the end of it. The object of requiring a signature at the end is to denote that the instrument is completed; that the mind of the testator is fully made up to dispose of his property in the manner expressed. It is to fix upon and set an unfailing mark, whereupon it shall be known that the paper contains the settled purposes of the testator. From the mere fact of a man's signing a testamentary paper at the end we may conclude that it is his will. The purpose of the act in requiring wills to be signed at the end is not to abridge rights over property, or to hamper by unreasonable formalities the disposal of it, but to provide a The act of 1833 requires that the animus The act of 1833 requires that the animus testandi should be manifested by the signature of the testator at the end of the paper, unless prevented by an absolute inability on his part to comply with its requirements. When signed at the end, the usual and familiar mode in transactions to show assent to a written contract, the will is complete, and all doubt as to intention is removed. In these indispensable particulars the paper in question is defective. It is written as testified to by witnesses, in the handwriting of the decedent. It is without date, and it is not signed by him, nor by another in his presence. It is not only incomplete in its form, but it is unexecuted, and only entitled to probate when it is clearly shown that the decedent was prevented from observing the prescribed directions by the extremity of means by which courts may safely decide what | admitting to probate memoranda, letters, and a man's will certainly is. It is founded upon notes which were inchoate expressions of ina reasonable presumption, and it does not allow the presumption to be disproved except in tentions. Strickler v. Groves, 5 Whart. 386: one way, namely, by proving that the testator Heise v. Heise, 31 Pa. 246; Knox's Est., 131 was prevented from signing it, or having it Pa. 220, 18 Atl. 1021, 6 L. R. A. 353, 17 Am. signed, by the extremity of his last sickness. St. Rep. 798. The act of January 27, 1848, The law likewise presumes that every man can sign his will, or cause it to be signed if he is (P. L. 16), permits the execution of a will by not prevented from doing so by the extremity a mark or cross. In Plate's Est., 148 Pa. of his last sickness. 55, 23 Atl. 1038, 33 Am. St. Rep. 805, it was said that the statute in authorizing the execution of a will by a mark can only mean a mark made with the intent to execute the will thereby. In Knox's Est., 131 Pa. 220, 18 Atl. 1021, 6 L. R. A. 353, 17 Am. St. Rep. 798, in which the subject is fully considered by Mitchell, J., it is said that one of the purposes of the act of 1833 was to attain certainty as to the testator's completed testamentary purpose by the placing of his signature at the end of the instrument, and that while a signature by initials or by a part only of the name may be a valid execution of a will, the present, actual, and completed intent to execute must be apparent. The act of assembly defined the manner by which this intent is to be manifested-by signing at the end thereof. Signing in the usual acceptation of the word and in the sense in which, presumably, it is used in the act, is the writing of a name or the affixing of what is meant as a signature. It may be that the writing in question is a clear expression of the decedent's intent to make a testamentary disposition of his estate, but it is not evidenced by the formality required by the act of assembly. his last sickness. We have a right to infer, inasmuch as the decedent lived for a time after the paper was written, that he had changed his mind, and that he neither wished nor intended that the paper should be regarded as his will. The impossibility of his compliance with the act does not appear. The paper has not the necessary characteristics of a will in this: That it must be actually signed, unless the signature be prevented by the state of the health and condition of the testator. It is not enough that the omission arose from misapprehension, mistake, or want of knowledge of the law. A writing that does not meet the requirements of the act of 1833 is not a will, and the register, cannot make a will out of it. The paper here produced was not signed, nor was the failure to sign accounted for as the statute required, to entitle it to probate. In passing upon the paper which is the subject of this appeal, we are constrained to hold that it was not executed in accordance with the statutory requirements of the act of assembly, and that the register was right in refusing to admit it to probate. The order dismissing the appeal from the register is affirmed on the opinion of the learned judge of the orphans' court. (245 Pa. 31) FREGA V. PHILADELPHIA RAPID TRANSIT CO. The court dismissed the appeal from the (Supreme Court of Pennsylvania. decision of the register of wills. Michael Brennan appealed. Argued before FELL, C. J., and BROWN, MESTREZAT, ELKIN, and STEWART, JJ. James B. Murrin, of Carbondale, and O'Brien & Kelly, of Scranton, for appellant. PER CURIAM. We concur in the concluWe concur in the conclusion stated in the opinion of the learned judge of the orphans' court. Prior to the Wills Act of April 8, 1833 (P. L. 249), it was not essential to the validity of a will that it should be signed by the testator if written by him or by his special direction. Section 6 of the act requires that: "Every will shall be in writing and unless the person making the same shall be prevented by the extremity of his last sickness, shall be signed by him at the end thereof or by some person in his presence and by his express direction." The manifest intention of the Legislature was to remedy the mischief that arose from 1914.) April 6, 1. CARRIERS (§ 344*) - INJURIES TO PASSENGER-CONTRIBUTORY NEGLIGENCE. The burden of proof is on a passenger on a trolley car injured in consequence of riding on a platform to show that the car was so crowded that he could not be accommodated within. [Ed. Note. For other cases, see Carriers, Cent. Dig. § 1399; Dec. Dig. § 344.*] 2. CARRIERS (§ 326*)-INJURIES TO PASSENGER-CONTRIBUTORY NEGLIGENCE. ley car does not excuse his contributory negli Physical infirmity of a passenger on a trolgence, where he voluntarily places himself in a place of known danger whereby he is injured. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1349-1351, 1364; Dec.Dig. § 326.*] 3. CARRIERS (§ 281*)-INJURIES TO PASSENGER-DUTY OF CARRIER. Where a passenger riding on the front platform of a car was injured by the explosion of the controller, and he was riding on the platdangerous for him to occupy a seat, judgment form because of a stiff knee which rendered it of nonsuit was not error; defendant being un *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes der no obligation to provide special accommoda- | position on the platform which he retained tions for persons afflicted as was plaintiff. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1093-1097, 1241; Dec. Dig. § 281.*] until the accident. If he was occupying it, not from choice, but for the reason that he could not be accommodated within, he was justified in so doing. The burden of proof Appeal from Court of Common Pleas, was upon him. His own testimony admits Delaware County. Action by Guiseppe Frega against the Philadelphia Rapid Transit Company. From an order refusing to take off a nonsuit, plaintiff appeals. Affirmed. Argued before FELL, C. J., and BROWN, MESTREZAT, STEWART, and MOSCHZISKER, JJ. Franklin Spencer Edmonds and Howard Schell Baker, both of Philadelphia, and John M. Broomall, of Media, for appellant. William I. Schaffer, of Chester, for appellee. STEWART, J. The plaintiff, while a passenger on a car of the defendant company, was injured by the explosion of the controller. He was standing at the time on the front platform, to the left and rear of the motorman, leaning against the front of the car. He had boarded the car at Tenth and Chestnut streets, in the city of Philadelphia, and was proceeding south. The car had moved a distance of several squares, having passed Walnut, Locust, and Spruce streets, before the explosion occurred. of no other inference than that he chose the platform for reasons of his own, his comfort or pleasure, uninfluenced by conditions within. While he repeatedly said that the car was full, yet he nowhere says that he could not have been accommodated within; nor does he assign the condition within as the reason for his standing outside. He testified that he saw people standing in the car, but, replying to a question from his own counsel as to the number, he distinctly said that he gave the matter no thought. Furthermore, he admits that he saw a number of people enter the car when he boarded it, and saw others enter it when it stopped at the several cross streets, yet at no time did he make any attempt to enter. His daughters who boarded the car at the time and place plaintiff boarded it passed within the car and there remained. They speak of the car being full, and yet they both testify, as did the father, that at the intermediate points passengers were discharged and others admitted who found accommodations. The fact that some were standing was in itself nothing unusual, and would not justify the [1, 2] The plaintiff received his injuries plaintiff in remaining outside. The second because of his position on the platform; excuse offered is quite as unavailing as the this is not disputed. No passenger within first. If the plaintiff's physical infirmity was the car was in anywise hurt. On the trial such as is described, it was quite sufficient of the case the court directed a nonsuit on to commend him to the helpful and considthe ground of contributory negligence on erate sympathy of the conductor and his felthe part of plaintiff in occupying a place of low passengers had he made the fact of his known danger without justifying excuse. disability known. Unwilling to rely upon Two explanations were advanced in excuse, this he voluntarily took a position of known wholly incompatible with each other, never- danger. The defendant company was untheless each calling for consideration. The der no duty to provide special accommodafirst was that plaintiff occupied a position tions for people afflicted as was the plaintiff. on the platform because the car was so When he boarded the car he knew that he crowded that he could not be accommodated could be accommodated only as he would within; the second was that he had a per- sit or stand. Provision was made within the manently stiff knee joint in one of his legs car for passengers occupying either position, which prevented his sitting except as the while no provision was made of any kind for crippled leg was stretched out its full length; passengers outside. The fact that if he octhat while he could have so sat in this par- cupied a seat his stiffened leg would so proticular car, had he been supplied with a seat, trude between the open space between the since the benches or seats run longitudinally seats as to be exposed to injury from those with the car, yet his leg thrust out in that passing in and out, and the further fact that position would have been exposed to injury he could not stand securely supported only from those entering or passing out of the by the usual strap, were circumstances which car; and further that he was not strong called for his consideration in determining enough to stand within the car when it was whether he would or would not become a in motion without other support than the passenger. Having determined that quesusual strap. As to the first, the evidence is tion for himself, in becoming a passenger he conflicting as to the position on the car the must be held to have accepted the accommoplaintiff first occupied. He says that at no dations provided, taking his chance as to time did he enter the car; one of his daugh- their adequacy for one in his condition. ters testified that she saw him enter. Ac- His physical infirmity gave him no exempcepting his own statement as correct, upon tion from the rule that imputes contributory boarding the car he at once occupied the negligence to a passenger who voluntarily *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes places himself in a position of known danger | 5. CONSPIRACY (§ 8*)-ACTION FOR DAMAGESand is injured in consequence. COMBINATION AGAINST FELLOW EMPLOYÉ— INSTRUCTIONS. [3] Furthermore, the accommodations provided within the car on which plaintiff was riding were not shown to have been different from those provided in the car in which he had traveled the same evening from ThirtyFourth and Chestnut streets to Tenth street, where he boarded the car on which he was injured. For that entire distance, 24 squares, he traveled standing up within the car. With this fact appearing in plaintiff's own testimony, an acceptance of his explanation offered as an excuse that he could not stand within the car except as supported in some other way than by the strap would be impossible. The evidence has impressed us as it did the learned trial judge. It discloses no conditions that justified the plaintiff in occupying the place he did when he was injured. In an action against plaintiff's fellow workmen for damages from loss of employment resulting from a conspiracy by defendants, a letter given to plaintiff by the manager at the time of his discharge, and stating that he had been discharged through no fault of his own, but at the demand of his fellow employés, because he had reported the dishonesty of one of them, was admissible as part of the res gestæ. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 303, 307-338, 1117, 1119; Dec. The assignments of error are overruled, and Dig. § 121.*] the judgment is affirmed. (244 Pa. 559) BAUSBACH v. REIFF et al. 7. EVIDENCE (§ 121*)-RES GESTE. Declarations or actions which accompany a fact in controversy and tend to illustrate or explain it are admissible as part of the res gestæ. [Ed. Note.-For other cases, see Evidence, (Supreme Court of Pennsylvania. March 30, Cent. Dig. $$ 303, 307-338, 1117, 1119; Dec. 1914.) 1. "CONSPIRACY" (§ 1*)-DEFINITION. A "conspiracy" is a combination of two or more persons by some concerted action to accomplish an unlawful purpose. [Ed. Note.-For other cases, see Conspiracy, Cent. Dig. §§ 1-5; Dec. Dig. § 1.* For other definitions, see Words and Phrases, vol. 2, pp. 1454-1461; vol. 8, p. 7613.] 2. CONSPIRACY (§ 8*)-WHAT CONSTITUTES— COMBINATION AGAINST FELLOW EMPLOYÉ. A combination between workmen to deprive a fellow employé of work by force, threats, or intimidation is an unlawful conspiracy, such as may create a liability for damages, though it is not made criminal by statute. [Ed. Note.-For other cases, see Conspiracy, Cent. Dig. §§ 7-11; Dec. Dig. § 8.*] 3. CONSPIRACY (§ 21*)-ACTION FOR DAMAGES COMBINATION AGAINST FELLOW EM PLOYÉ INSTRUCTIONS. In a workman's action against fellow work men for damages due to their combining, and by threats of a strike, forcing their employer to discharge plaintiff, instructions that, if one defendant had the right to threaten to stop work if plaintiff was not discharged, all of them might lawfully combine to do the same thing, were erroneous. [Ed. Note. For other cases, see Conspiracy, Cent. Dig. §§ 28, 29; Dec. Dig. § 21.*] 4. CONSPIRACY (§ 21*)-ACTION FOR DAMAGES -COMBINATION AGAINST FELLOW EMPLOYÉ -INSTRUCTIONS. In a workman's action against fellow workmen for damages due to their combining and forcing their common employer to discharge plaintiff, it was error to instruct that, if plaintiff had worked on the nerves of his coemployés and made himself objectionable, obnoxious, unpleasant, or distasteful to them, defendants had a right to unite to procure his discharge by threatening to strike. [Ed. Note. For other cases, see Conspiracy, Cent. Dig. §§ 28, 29; Dec. Dig. § 21.*] Dig. § 121.**] Moschzisker, J., dissenting. Appeal from Court of Common Pleas, Schuylkill County. Trespass for conspiracy by George Bausbach against Frank G. Reiff and others. From judgment for defendants, plaintiff appeals. Reversed. Argued before BROWN, MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ. William Wilhelm, of Pottsville, for appellant. Charles A. Snyder, of Pottsville, for appellees. POTTER, J. The plaintiff in this case brought this action of trespass against the defendants to recover from them damages which he claims to have suffered by reason of a conspiracy entered into by defendants to have him discharged from his employment as chief engineer of the Rettig Brewing Company of Pottsville, Pa. He had held that position for more than five years, when, on July 18, 1910, a committee of employés presented to the manager of the brewery a paper which was signed by all the defendants, Which was as follows: "Pottsville, Pa., July 17, 1910. that we refuse to work after twenty-four hours' "We, the undersigned, do hereby declare notice to the employers of the Rettig Brewing Company as long as George Bausbach is employed at same plant.” Upon the trial, plaintiff offered testimony showing that he was discharged by the brewing company in consequence of the threats contained in the paper and repeated orally by the committee, and that the reason the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes flicted upon the employer is the same; but in the one case the means used are to obtain a legitimate purpose, namely, the advancement of their own wages, and the injury inflicted is no more than is lawfully incidental to the enjoyment of their own legal rights. In the other case the object sought is the injury of a third party." defendants, the signers of the paper, demanded his discharge was that he had a short time before reported to the manager of the brewing company the conduct of a night watchman, whom he had detected in stealing goods from the brewery, and who was discharged in consequence of the report made by plaintiff. The defendants admitted having presented the paper in question to the N. E. 753, 757 (6 L. R. A. [N. S.] 1067, 116 management of the brewery, but contended Am. St. Rep. 272, 7 Ann. Cas. 638), Loring, that their reason for so doing was not the, said: action of plaintiff in reporting the theft, but because of a general dislike for him. The trial resulted in a verdict for defendants. Plaintiff has appealed, and his counsel have filed 21 assignments of error, chiefly to the charge of the court below, and to its answers to points, and to rulings on öffers of evidence. The third assignment is to the following language in the charge to the jury: "If you find, of course, that these men were justified in requesting the dismissal of this man Bausbach, the plaintiff, on account of his making it so unpleasant for them that they did not care to work with him, that is the end of this case; your verdict should be in favor of the defendants." The first, second, twelfth, and thirteenth assignments are to language used in the charge and in answering points with respect to which substantially the same question is raised, and that is whether employés, to whom a fellow workman is for any reason disagreeable, may lawfully combine for the purpose of procuring his discharge by notifying the employer that they will refuse to work if the workman to whom they object is retained. [1, 2] In Erdman v. Mitchell, 207 Pa. 79, 91, 56 Atl. 327, 331 (63 L. R. A. 534, 99 Am. St. Rep. 783), this court said, speaking by Mr. Justice Dean: "A conspiracy is the combination of two or more persons by some concerted action to accomplish an unlawful purpose. It is unlawful to deprive a mechanic or workman of work by force, threats, or intimidation of any kind; a combination of two or more to do the same thing by the same means is a conspiracy. That by the legislation referred to such conspiracy is no longer criminal does not render it lawful. common law the courts held that such combination was so prejudicial to the public interests and so opposed to public policy as rendered it punishable criminally; but the Legislature, which generally determines what is and what is not public policy, has declared that it is no longer a crime or misdemeanor. But this is as far as it has gone; it is as far as it could go without abolishing the Declaration of Rights." 99 And Mr. Justice Dean quotes with approval (207 Pa. 94, 56 Atl. 332, 63 L. R. A. 534, 99 Am. St. Rep. 783) from 1 Eddy on Combinations, 416, as follows: In Pickett v. Walsh, 192 Mass. 572, 582, 78 his chances in a struggle with another individ"A single individual may well be left to take ual. But in a struggle with a number of persons combined together to fight an individual, the individual's chance is small, if it exists at of persons has a power of coercion which an inall. It is plain that a strike by a combination dividual does not have. The result of this greater power of coercion on the part of a combination of individuals is that what is lawful for an individual is not the test of what is lawful for a combination of individuals; or, to state it in another way, there are things which it is lawful for an individual to do which it is not lawful for a combination of individuals to do. ** We have no doubt that it is within the legal rights of a single person to refuse to work with another for the reason that the other person is distasteful to him, or for any what is lawful for an individual is not necesother reason, however arbitrary. But *** sarily lawful for a combination of individuals.' "The plaintiff had a right to work, and that right of his could not be taken away from him or interfered with by the defendants, unless it came into conflict with an equal or superior right of theirs. The defendants' right to better their condition is such an equal right. But to humor their personal objections, their likes and dislikes, or to escape from what 'is distasteful' to some of them, is not in our opinion a superior or an equal right. * * One who betters his condition only by escaping from what he merely dislikes, and by securing what he likes, does not better his condition within the meaning of those words in the rule that employés can strike to better their condition." [4, 5] In the light of these authorities, which point out a sound distinction between what a single individual may lawfully do and that which a combination of individuals may do, the instructions of the trial judge which are the subject of the first three assignments of error were inadequate and erroneous. The united action of the defendants was put upon the same basis as that of any single one of them; the trial judge using by way of illustration a supposed act by Reiff, the first defendant named. It does not appear that the jury were instructed that an act which might be lawful if done by one person might become unlawful if a number of persons combined to do it. The only fair interpretation which could be placed upon the instructions given was that, “if Frank G. Reiff or any other one of these de "The courts recognize the right of workingmen to combine together for the purpose of bettering their condition, and in endeavoring to attain their object they may inflict more or less inconvenience and damages upon the employer; but a threat to strike unless their wages are advanced is something very different from a threat to strike unless workmen who are not members of the combination are discharged. In either case the inconvenience and damage in- fendants" had the right to threaten to stop 91 A.-15 |