Ward, with power of attorney to transfer, | tional Bank, when it accepted the stock as authorized Ward to sell the stock as though collateral security on Lawrence's general it were his own at any price he deemed fit. credit account, had full knowledge that they He relied upon Wood's Appeal, 92 Pa. 379, belonged to Westinghouse; and, so far as 37 Am. Rep. 694, as authority for this ruling. the record shows, it also, knew Lawrence We think he misapprehended the ground up- had not the consent of Westinghouse to reon which that case was decided. In Wood's pledge them. This knowledge on the part Appeal the pledgees of the stock did not of the bank is affirmatively proved. It know that the brokers who pledged it were would not have been implied, had nothing not the owners, and the decision was put more appeared, than the fact that Lawrence, squarely upon that ground, Mr. Justice the apparent owner, had pledged them for Trunkey saying (page 393 of 92 Pa. [37 Am. his own account. Westinghouse had put it Rep. 694]): "The defendants had no knowl- in the power of his broker to do this, and edge of the collusive transaction between would not have been heard to complain. the executor and McDowell & Wilkins (the But when the bank actually knew, notwithbrokers and pledgors), nor reason to believe standing what appeared on the certificates, that they, the pledgors, were not the real that the ownership was still in Westingowners, as they appeared." From the mas- house, it was bound to inquire of the owner ter's report in that case (page 382 of 92 Pa. whether there was authority in the broker [37 Am. Rep. 694]) it seems that the defend- to repledge. Not having done so, it cannot ant testified that he dealt with them (the now claim that the owner's right is barred. pledgors) as principals, not as agents, and It is so held by all our cases." And in strict that he had no doubt, or reason to doubt, consistency with the principle thus declared, that the certificates were their property when in the subsequent case of Westinghouse v. he received them. In the present case the German Nat. Bank, 196 Pa. 249, 46 Atl. 380, facts are quite to the contrary. The Browns where it was not shown that the bank had dealt with Ward as an agent, not as a prin- knowledge that the stock pledged was not cipal, and knew that the stock belonged to owned by the broker, it was held that the Sloan. owner was not entitled to recover it from the bank.

We think the principle is sound and well established that, where a pledgee or a purchaser takes stock with notice of the capacity in which the agent holds, he cannot deny the rights of the principal therein. "A person buying stock from an agent, with knowledge that the latter is acting as agent, is bound to inquire into the scope of his authority." 1 Cook on Corporations (6th Ed.) § 351. "Every person dealing with an agent is bound to ascertain the nature and extent of his authority. He must not trust to the mere presumption of authority, nor to any mere assumption of authority by the agent. He must at all times be able to trace the authority home to its source. Keeping within the scope of that authority, he is safe, and cannot be affected by secret instructions of which he was ignorant. But if he had knowledge of the instructions, or notice sufficient to put him upon an inquiry by which they might have been discovered, he will be held bound by them." Mechem on Agency,

The proper distinction to be made in such cases is pointed out in the opinion by Mr. Justice Dean in Ryman v. Gerlach, 153 Pa. 197, 205, 25 Atl. 1031, 1033, where, referring to Wood's Appeal, he shows that the purchasers of the stock in that case were protected as "innocent strangers." And he points out that if they were not such, and "if they knew the securities credited to Bod⚫ mer were in fact Ryman's, then the sale of them without authority from either Bodmer or Ryman was a wrongful conversion for which they are answerable." And he went on to say: "Nor is there any reason, founded on the peculiar necessities of stock dealing, why brokers should not be held to the observance of the same rule of morals and law as men engaged in other avocations." This distinction was accurately preserved and followed in Westinghouse v. German Nat. Bank, 188 Pa. 630, 41 Atl. 734. There the plaintiff deposited stock with a broker as security for certain stock operations he was carrying on. He gave the broker three certificates with a power of attorney on the back of each duly executed by him. The The defendants here, having dealt with broker without the knowledge or consent of Ward as an agent, and not as a principal, his customer pledged the certificate with a were bound to inquire into the nature and bank as collateral security for his own in- extent of his authority. They did so to a debtedness to the bank. The bank knew, limited extent, and what they admittedly when the stock was pledged, that it belong-learned was quite sufficient to put them uped to the plaintiff, and not to the broker. on notice of the limitations upon that auThe plaintiff filed a bill in equity against the bank to compel the surrender of the certificates to him. The court below entered a decree in his favor, which was affirmed by this court, in an opinion by Mr. Justice Dean, in which he said (page 633 of 188 Pa., page 735 of 41 Atl.): "The German Na

289.

thority. The telegram shown by Ward indicated upon its face some prior instruction to him. The expression, "If can't sell, borrow," implied that some price at which to sell had been fixed. Inquiry would have disclosed at once the fact that this limitation was 50 cents per share to Schwab. No

on the ground that her will was not duly attested by two credible and at the time disinterested witnesses, as required by Act April 26, 1855 (P. L. 328), relating to bequests or conveyances for religious or charitable uses. The two attesting witnesses were Lewis A. Balz and Miss H. E. Pennypacker. The first, at the time he attested the will, was the vice president of the Pennsylvania Company for Insurances on Lives and Granting Annuities and the owner of 8 of the 20,000 shares of its capital stock. Miss Pennypacker was in the employ of the company as a stenographer and typewriter. Each of these attesting witnesses was paid a remunerative salary by the company, and Balz was receiving dividends on his 8 shares of stock. The company was named as one of the four executors of the will of the testatrix and qualified as such.

other authority to sell had apparently been | charities. Collateral next of kin whom she given to Ward. We agree with the court remembered-the closest being a first cousin below that under the facts found there is-seek to avoid this disposition of her estate, nothing to justify a conclusion that the plaintiff was guilty of laches. It appears that defendants admitted the jurisdiction of the court, and made no denial of their ability to return the stock. The evidence and findings of 'fact show that the sale was made to James E. Brown individually, rather than to the firm of Morris Brown & Co. No suggestion is made by counsel for appellee that a decree against James E. Brown for the return of the stock cannot be enforced. We are of opinion that under the established rule of law, as applied to the facts of this case, the plaintiff is entitled to the relief for which he prays, and that he should have a decree for the restoration of the 261,112 shares of stock, upon the repayment of the amount paid to Ward therefor, with interest. The decree of the court below is reversed, and the bill of complaint is reinstated, and it is ordered that the record be remitted to the court below for the entry of a decree in favor of the plaintiff as he rein indicated.

(228 Pa. 537)

In re JEANES' ESTATE.
Appeal of WALTER et al.

One of the clauses in the will is as follows: "I hereby Will and direct that the Pennsylvania Company for Insurances on Lives and Granting Annuities shall hold the one hundred and forty-eight (148) shares of Stock of the said Company now held by it in the name of Mary Jeanes and accredited to her estate the dividends and interest ac

(Supreme Court of Pennsylvania. July 1, 1910.) cruing therefrom to be paid to the Treasurer WILLS (§ 116*) ATTESTING WITNESSES CHARITABLE BEQUESTS,

Act April 26, 1855 (P. L. 328), requiring bequests to charitable uses to be attested by two disinterested witnesses, refer to a present, certain, and contingent interest; and an attesting witness is not so interested because testatrix directs a company of which witness is vice president to pay dividends on certain shares of its stock to a charity on certain conditions.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 290; Dec. Dig. § 116.*]

Appeal from Orphans' Court, Philadelphia County.

In the matter of the estate of Anna T. Jeanes. From a decree dismissing exceptions to adjudication, Naomi Rhoads Walter and others appeal. Affirmed.

Argued before BROWN, MESTREZAT,

POTTER, ELKIN, and MOSCHZISKER, JJ. James Gay Gordon and Joseph R. Rhoads, for appellant Walter. James Gay Gordon and Francis Macomb Gumbes, for appellants Holt. John G. Johnson, Maurice Bower Saul, John D. Rice, Irvin C. Elder, and Walter K. Sharpe, for appellees Moore, Walter, and the Pennsylvania Company for Insurances on Lives. Clement B. Wood and Morgan, Lewis & Bockius, for appellee Germantown Trust Co. Fell & Spalding and Joseph T. Bunting, for appellees trustees of Philadelphia Yearly Meeting of Friends.

BROWN, J. The testatrix, a single woman, gave the bulk of her large estate to

or Managers of the Women's Hospital of Philadelphia, North College Avenue and Twenty-second Street, as long as the said Hospital is maintained as a Special Hospital for Women and Children and without wards for men, but should this exclusive character of the aforesaid Hospital be abandoned or disregarded, or the Managers decline to accept this conditional bequest, I hereby Will and direct that the aforesaid One Hundred and forty-eight shares of Stock of the Pennsylvania Company for Insurances on Lives and Granting Annuities shall revert and accrue as my bequest and donation to the Incorporated Trustees of Philadelphia Yearly Meeting of Friends for the benefit of Hospitals or Infirmaries of the "Quarterly Meeting Boarding Homes for Aged and Infirm Friends and those in sympathy with us."" It is to this clause that the appellant turns as evidence of the disqualification of Balz as an attesting witness. He was not disqualified because his company would receive commissions as one of the executors. Jordan's Estate, 161 Pa. 393, 29 Atl. 3. And Miss Pennypacker was not an interested witness because she was an employé of the company. Combs' & Hankinson's Appeal, 105 Pa. 155.

But it is strenuously insisted that Balz was not a disinterested witness, because the company in which he was a stockholder might receive commissions as an alleged trustee on the dividends which it might have to pay to the Women's Hospital on the 148

shares of stock. In paying these dividends | fied Balz was in the compensation which to the women's hospital, it would be render- | might be paid to the company in which he ing a service which every corporation gratui- was a stockholder. If, under the direction in tously renders to its stockholders. It had rendered this service to Miss Jeanes during her lifetime, and what greater labor or responsibility would be imposed upon it in paying the dividends to her appointee? It is scarcely conceivable that the company would claim compensation as trustee for paying these dividends, and, if claimed, it would hardly be allowed. Harrison's Estate, 217 Pa. 207, 66 Atl. 354. If compensation, however, should be demanded and allowed, it surely would not exceed $100 per annum, and the interest of Balz, even if $100 should be paid, would be 4 cents a year, and even this sum would never be directly paid to him. The very narrow question then is: Was he, at the time he attested the will, so interested as to be disqualified from attesting it, because the testatrix had directed that his company should, on certain conditions, pay to the Women's Hospital the dividends on the 148 shares of stock? If he was interested within the contemplation of the act, the amount of his interest would be immaterial; for the doctrine, “De minimis non curat lex," has no application. The test is not quantity, but quality.

the will that it pay these dividends to the Women's Hospital, it could charge and would be entitled to receive compensation for paying them, it would be compensation for services rendered. The services which it renders as executor are the services of a trustee, and the reasoning of our cases, which hold that the compensation to an executor for his services does not disqualify him from attesting a will, applies with no less force to the services which may be rendered by the Pennsylvania Company for Insurances on Lives and Granting Annuities in paying the dividends to the Women's Hospital. But, apart from this, the interest of the company, if it can be termed such within the contemplation of the act of 1855, in the direction to pay the dividends, was uncertain and contingent, and that of Balz was at least equally so. No such disqualifying interest was in the mind of the Legislature when it was wisely enacted that a testator, during the last calendar month of his life, should be free from the importunities and influences of designing persons, who, from present, certain, and vested personal interest in religious or charitable institutions, might, if so inclined, improperly turn his thoughts to them and away from the natural objects of his bounty. A reasonable meaning is to be given to the words "two credible, and, at the time, disinterested witnesses," and it would be torturing them to include Balz within them, because, at the time of his attestation of the will, he might have had an uncertain, remote, and contingent interest to the extent of not more than 4 cents a year in the earnings of his company, under the direction of the testatrix that, upon certain conditions, it pay dividends on certain shares of its stock to her appointee.

Interest which, under the act of 1855, disqualifies a witness from attesting a will containing religious or charitable bequests, must be a present, certain, and vested one. It must not be uncertain, remote, or contingent. Combs' & Hankinson's Appeal, and Jordan's Estate, supra; Kessler's Estate, 221 Pa. 314, 70 Atl. 770, 128 Am. St. Rep. 741. Applying this rule to the will before us, it is difficult to follow the process of reasoning by which it is attempted to show that Balz was an interested witness when he attested it. It is first to be observed that no bequest or devise is made to any religious or charitable institution in which he was in any manner But for Kessler's Estate, it is doubtful if interested, and it is next to be noted that this appeal would be here. Except as to the there is not even an absolute gift of the 148 compensation to the executors, there is no shares of stock to the company in which he analogy between the cases. Wilmerton, the was a stockholder, to be held by it as trus-attesting witness in Kessler's Estate, "was tee for any religious or charitable use. The a trustee and officer in a church to which direction of the testatrix upon which the part of the income and ultimately a portion appellant relies in asking that Balz be de- of the corpus of the trust estate was directed clared an interested witness is merely that to go; he had an option to purchase certain his company pay the dividends on the 148 shares of stock, which were a part of the shares of stock, under her control at the time trust for religious and charitable uses, at she executed her will, to the Women's Hos- a price to be agreed upon by three disinpital, provided it would accept her condi- terested persons, to be selected in a partictional bequest. For a subsequent breach of ular manner; he was one of two trustees to the condition the stock is given directly to a whom the stock of the Kessler Wagon Works named charity. So long as the company Company was given in trust to vote at cormight pay the dividends to the Women's porate elections, and whose duties required Hospital, it would simply be rendering a that dividends received be paid by them to service common to all of its stockholders. It the charities named and in the proportions has absolutely no interest in the stock itself, nor in the use to which the dividends may be put by the Women's Hospital while entitled to receive them.

fixed in the will; he was also a stockholder and director in the wagon company, as well as an officer and employé, and had whatever benefit accrued to him as a stockholder and The interest which it is contended disquali- officer in that company by reason of having

the power to vote the stock so held in trust by him."

The unanimous opinion of the court below on the exceptions to the adjudication of the learned auditing judge is approved here, and the decree affirmed, at appellants' costs.

(228 Pa. 535)

In re FETTERHOFF'S ESTATE.
Appeal of FOREIGN MISSIONARY
SOCIETY et al.

(Supreme Court of Pennsylvania. July 1, 1910.)
WILLS (§ 116*)—ATTESTING WITNESSES-DIS-
QUALIFICATION.

Under Act April 26, 1855 (P. L. 328), requiring witnesses to a will, including devises for charitable purposes, to be disinterested, where two of the attesting witnesses are connected with one of the charities as trustee, while a third is an officer in several of the organizations benefited, the witnesses are disqualified.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 290; Dec. Dig. § 116.*]

Appeal from Orphans' Court, Franklin County.

In the matter of the estate of Ann E. Fetterhoff, deceased. From a final decree confirming the report of the auditor, the Foreign Missionary Society and others appeal. Affirmed.

PER CURIAM. The religious and charitable bequests and devises of the testatrix are void for her failure to have the execution of her will attested by two credible and at the time disinterested witnesses, as required by Act April 26, 1855 (P. L. 328). Under Kessler's Estate, 221 Pa. 314, 70 Atl. 770, 128 Am. St. Rep. 741, no one of the three attesting witnesses was disinterested.

Nothing more need be said, and the decree is affirmed, at appellants' costs.

A finding involving the credibility of witnesses and approved by the trial judge will be reluctantly disturbed on appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3901-3906; Dec. Dig. § 994.*]

Ann E. Fetterhoff died on November 17, 1906, testate, leaving to survive her her mother and sister. Her will, dated March 17, 1906, besides providing bequests for a number of relatives, included legacies to the First Church of the United Brethren in Christ, and to the treasurer of the Old People's Home; and the residuary estate, in Action by Susan E. Chapin against Mardequal shares, was devised to the following in-iros M. Stone. From a verdict for plaintiff, defendant brings exceptions. Exceptions overruled.

Exceptions from Superior Court, Providence and Bristol Counties; Charles F. Stearns, Judge.

PER CURIAM.

stitutions and societies connected with the United Brethren denomination: Foreign Missionary Society, Home Missionary Society, Church Erection Society, Woman's MissionVincent, Boss & Barnefield, for plaintiff. ary Society, Beneficiary Fund, Union Biblical E. C. Pierce and W. J. Brown, for defendant. Seminary, Lebanon Valley College, and the Quincy United Brethren Orphanage and Home. The will was attested by three witnesses, Rev. W. H. Washinger, J. C. Peters, and W. O. Appenzellar. Peters and Appenzellar were members and trustees of the First Church, and Washinger was presiding elder of the Pennsylvania Conference, trustee of Lebanon Valley College, director of Quincy Orphanage, and director of Home Missionary Society. The trustees of the church and all the societies and organizations served without compensation. On these facts the auditor found that these witnesses were not disinterested, and the bequests to charitable and religious uses were invalid.

Argued before BROWN, MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ. Walter K. Sharpe, John G. Johnson, John D. Rice, and Irvin C. Elder, for appellants. O. C. Bowers, T. Z. Minehart, and Bonbrake & Zacharias, for appellee.

It is generally conceded that trial by jury was originally instituted for the determination of disputed questions of fact. The present case seems to be one for the determination of which jury trial seems peculiarly appropriate. The veracity of the plaintiff and defendant as witnesses in the case and the credibility of their statements were necessarily called in question, and the knowledge of human nature and experience of the jurors were likely to be of value in the consideration of the preponderance of evidence contained in the testimony of the parties to the case. The statements were made not merely within hearing distance of the jury, but the testimony was given in the presence of the jury, who saw as well as heard the witnesses. In all jury trials the manner of the parties testifying as witnesses, their frankness or slyness, their secretiveness or openness, their willingness or unwillingness, their sincerity or crafti

ness, their modesty or boldness, their strength | tion, one with a slight variation and denied or weakness, mental or physical, and, in gen- three. Of the three denied, two had been suberal, all their pecularities, are exhibited in a stantially charged by the court in language contest in which they are greatly and some- equally appropriate and the other request times vitally interested, and in which exhibi- which was denied was in direct conflict with tion they often have the assistance of coun- the law laid down in 29 R. I. 460, 72 Atl. 394, sel. supra. The modification made to the request above referred to was necessary and proper.

PER CURIAM. The judge and jury do not agree in their conclusions. The jury found Edward M. Sullivan, for plaintiff. C. M. for the defendant, but the judge who presidVan Slyck and Frederick A. Jones, for deed at the trial granted the plaintiff's motion fendant.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes