In the Court of Common Pleas of Berks County. No. 36 February Term, 1914. Assumpsit: Rule by defendant for new trial.

Wm. Kerper Stevens, for Defendant and Rule.

Cyrus G. Derr and Irving P. Wanger, for Plaintiff.

Opinion by Wagner, J., October 11, 1915. The plaintiff brought suit against the defendant for the sum of $200 together with interest from January 7, 1914. The jury returned a verdict for the full amount of the claim. This suit was brought by the plaintiff as the beneficiary under a policy of insurance issued upon the life of his mother, Emeline Whitney, by the Provident Mutual Alliance, on December 4th, 1908. On October 12th, 1910, this policy was taken over and assumed by the defendant. Emeline Whitney died on July 29th, 1913.

The affidavit of defense averred, first, that at the time the defendant assumed the policy of the Provident Mutual Alliance the assumption of this policy was made upon the written application of Emeline Whitney, wherein she stated that she was then of sound bodily health and that this statement was the consideration for the assumption of the policy. Second, that on the 15th day of February, 1912, owing to default of payment of assessments on the part of Emeline Whitney, her membership in the defendant society was forfeited and was of no force and effect and that she ceased thereby to be a member of the society and to be entitled to benefits; that on this day she signed a written application for reinstatement and health certificate wherein she admitted that owing to default in payment her membership had ceased and agreed to pay all assessments against the certificates in the event that she be reinstated; that she warranted and declared that she was at that time in sound health; that in consideration of the above statements and the payment of the assessments the defendant society reinstated Emeline Whitney as a member; that the statements and warranties made by Emeline Whitney in her application for renistatement, with reference to her health, were false, and that she was then in poor health, suffering from paralysis, from which disease she died on or about the 29th of July, 1913.

Plaintiff to this affidavit of defense filed a reply wherein he made these denials: First, that the assumpttion of the policy was made upon an application of Emeline Whitney wherein she stated that she was of sound bodily health; second, that she made any application at all when her original policy was assumed by this defendant company; third, that on the 15th day of February, 1912, owing to any default of payment of assessment on the part of Emeline Whitney, her membership in the defendant society was forfeited and of no force and effect; fourth, that she had ceased by reason of said default to be a member of the defendant society and ceased to be entitled to any benefits under the policy originally issued to her; fifth, that Emeline Whitney had signed any written application for reinstatement and health certificate wherein she admitted that her membership had ceased, but averred that she had regularly paid her assessments and that on February 15th, 1912, her membership was in full force and remained so until the time of her death; sixth, that the copy of the certificate appended to the affidavit of defense was not executed by her or by any person at her direction or with her knowledge or consent.

Under our rules of court §§176, 177, the only issues raised in this trial were those contained in the statement, the affidavit of defense, and reply to the affidavit of defense.

The only error alleged at the argument of this case was the inadequacy of the charge of the court with reference to what is claimed by defendant's counsel to be the only question raised, that is, false representations made in Emeline Whitney's application for reinstatement upon default of payment. This, however, overlooks the fact that the first question to be determined in this case was whether there was any default upon which a forfeiture and a reinstatement by reason of that forfeiture could be based. If there was no default in payments of assessments, then the subsequent matters of alleged forfeiture and alleged reinstatement were of no consequence. The defendant offered no evidence whatever to show that the assumption of the policy by defendant on October 12th, 1910, was made upon a false statement. This defense therefore failed, and could not be considered by the jury.

The first question, therefore, to be determined was, -was there any default in payments on the 15th day of February, 1912, when, as the affidavit alleged, owing to defaults of payment of assessments on the part of Emeline Whitney, her membership in the defendant society was forfeited? An examination of the testimony shows that the parties to this proceeding realized that upon that issue really depended the whole case, as the oral testimony taken was largely upon that subject. The months for which default of payments were claimed were August, September, October, November, December, January, February,-seven months. Samuel Turner testified that he, on behalf of his mother, had paid the monthly payments for these months to W. O. F. Hall, admitted by defendant to be its authorized agent to make the collections. To corroborate this evidence he produced his receipt book received by him from the company, which receipt book, inter alia, showed the date when the assessment was due, that is, day, month, and year; also date when paid, day, month, and year, and a place for the signature of the collector or agent. This book showed assessment due August 1, 1911, paid June 12, 1911. Assessments due September 1 and October 1, paid October 4. Assessment due November 1, paid November 4. Assessment due December 1, paid December 5. Assessment due January 1, 1912, paid January 3, 1913, and assessment due February 1, paid February 3. These receipts were all signed by defendant's agent, W. O. F. Hall, and admitted by the defendant to be his signature.

As against this conclusive evidence of payments the only evidence offered on the part of the defendant to show non-payment was the statement by an officer of the defendant company that defendant had not received these dues from the agent, and his further testimony that he had received from the agent the certificate of acknowledgement of arrearages signed by Emeline Whitney and witnessed by Samuel Turner, both of which signatures were testified by the plaintiff not to be their signatures.

The court's charge as to the various questions at issue in a case must be viewed in the light of their importance and the evidence submitted thereon. The first important question here then was whether there were non-payment of dues upon which to base a for

feiture. If the jury found from the evidence that there was no default in payments, that settled the case in favor of the plaintiff without a further consideration of the other issues. It is this which required us to first specifically direct the attention of the jury to the question of whether there had been a failure to pay assessments, together with the evidence thereon. We then stated that if there was a forfeiture and notice given, and that the application for reinstatement was that of the insured, and that therein the insured made representations as to health, which according to the death proofs were false, that that would vitiate the policy. We consider that this, together with what followed on that question, was a sufficient and adequate calling to the attention of the jury the questions to be considered by them in arriving at their verdict. There is no question but that the jury from the evidence submitted, the addresses of counsel and the charge of the court fully understood and gave consideration to all the questions necessary to arrive at a verdict.

Rule for new trial discharged.

DODSON'S ESTATE.

Construction of a Will Meaning of Words "Any Money."'

1. Where it appeared that the greater part of decedent's estate was acquired from her husband, but at the time of her decease she had a cash deposit in bank, subject to check, certain coupon bonds, certain certificates of stock, and was a creditor for a large sum loaned on a book account to a commercial firm, and a codicil to her will was as follows: "Fifth, Any money or bonds I may have in my own name and not in the name of the estate of my husband I give and bequeath to my sisters Mary L. Hamlin and Emma S. Hamlin," and it appeared that the decedent's will was carefully drawn, the words "any money" are to be held to mean money in its ordinary, plain and common meaning.

2. The rule of construction which applies in a case of this kind, is that decedent's intent must be confined to the meaning of her words, where all the circumstances of the case, as disclosed in the will itself, showed that she understood the exact limitations of the words which she used. Where there is no ambiguity as to her meaning, there is no occasion for supposition.

In re Estate of Katharine H. Dodson, deceased. In the Orphans' Court of Northampton County. Citation on the executors and residuary legatees to show cause why

they should not pay a certain sum of money to the petitioners and to assign and deliver certain shares of stock to them. Citation dismissed.

R. S. Taylor, for Petitioners.

H. A. Cyphers and William W. Porter, of the Philadelphia County Bar, for Respondents.

The opinion of the court was delivered October 4, 1915, by

Stewart, P. J. This is the petition of Mary L. Hamlin and Emma S. Hamlin, legatees under the will of Katharine H. Dodson, for a citation to her executors and to the residuary legatees under her will, to show cause why they should not pay to petitioners the sum of $12,236.00, with interest from July 14, 1914, and to assign and deliver to the petitioners certain shares of stock. An answer was filed by the executors and the legatees. No replication was filed. It follows that all the averments of the petition, admitted in the answer, and all the averments of the answer are to be taken as true: Russell's Administrator's Appeal, 34 Pa. St., 258; Worthington's Estate and Appeal, 6 Pa. Super. Ct., 484. The following contain such facts as are necessary for a decision of the matter in dispute. Decedent died July 16, 1913, leaving a will and codicils which were duly probated. Her will is dated February 5, 1910. The first codicil is dated January 31, 1912, and the second March 26, 1913. The greater part of decedent's estate was acquired by her from her husband who died April 14, 1908, leaving a will in which his wife was the sole legatee. Mr. Dodson by his will, provided that his executors were "to carry on all the business interests in which I am now engaged, whether as individual, as partner, or as owner of corporation stock, in the same manner and with the same powers as fully as I could if living, until such time as, in their judgment, they consider it best to close out and settle up the same." He further directed that no account or inventory should be filed and as a matter of fact none has been filed. The estate of decedent was appraised for collaterial inheritance at the sum of $461,659.00. There are some debts outstanding, but the assets of the estate are more than sufficient to pay the debts, costs of administration, the