effect of the reply to this question would have been to show the opinion of the witness as to whether, in view of the alleged undisclosed facts, the risk was first-class, and whether, if the alleged fact had been known, the risk would have been accepted by the company. The issue to be determined by the jury, however, was the truth or falsity of the answers of the insured to the questions put to him by the medical examiner; and, as affecting that issue, it is apparent that it was wholly immaterial and of no consequence what, under other facts than those disclosed by the application, the witness thought about the character of the risk, whether it was good or bad, and whether the company would or would not have accepted it. The testimony was therefore properly excluded. This question has been ruled in other states, and a like conclusion reached. In Rawls v. American Mutual Life Insurance Co. (N. Y.) 84 Am. Dec. 280, a physician was asked on cross-examination, if he had known the insured had been addicted to certain practices, would he have regarded his conduct as likely to impair his health; and then the medical examiner was asked on cross-examination: "If you had known, at the time you had made this examination [referring to the examination made for the defendants], that Fisher was in the habit of using intoxicating liquors to excess, would you have regarded his life healthy and the risk good?" The court held that the testimony was properly rejected, and observed: "This testimony was incompetent both on princi ple and authority. It was of no consequence what, in the opinion of these physicians in certain cases, and under a certain state of facts, would be a good or bad risk for a life insurance company to take, or what circumstances should be considered on the question of increasing or lessening the rates of insurance. These witnesses might give their opin ion on matters of science connected with their profession, but were not receivable to state their views on the manner in which others would be influenced if certain specific facts existed." This decision was followed in New York, in Higbie v. Guardian Mutual Life Insurance Co., 53 N. Y. 603. There the medical examiner, called as a witness for defendant, was asked in substance whether, if he had been advised of certain alleged undisclosed facts, it would have called upon him to make further inquiries, and as to the effect such knowledge would have had upon his answer to the question as to the propriety of taking the risk. It was held that these questions were properly rejected. In Illinois a similar view is taken of the admissibility of such testimony. In Mutual Aid Association v. Hall, 118 Ill. 169, 8 N. E. 764, the medical examiner of the company was the witness being interrogated. The court approved the ruling of the trial court in sustaining the objection to the testimony, and said: "They [questions] were, in sub

stance, whether Hall's application for membership in the association would have been favorably passed upon if it had been stated in such application that he drank liquor. We think that the objections to these questions were properly sustained. The real issue was whether the statements made in the application were true or false. What would have been the effect if some different statement from that therein contained had been made to the association was of no consequence."

The fifth assignment may be dismissed with the remark that a responsive answer to the question put to the witness would not, in itself, have tended to disclose any existing disease, which, as stated by counsel on argument, was the purpose of the question.

The sixth to the twelfth assignments, inclusive, and the twenty-second assignment, may be considered together. The defense to this action in the court below was, as we have seen, that the insured made false answers to the questions put to him by the medical examiner. For the purpose of establishing this fact, the defendant offered to show that the insured was afflicted with consumption during the latter half of the year 1900, and that he died of that disease in the spring of 1901. The trial court held that the evidence was not admissible; that "to ascertain whether he had consumption at the time [of the issuance of the policy], to prove that he had consumption in September, 1900, would not be any evidence in this case." The learned judge, therefore, excluded the testimony offered by the defendant to show the condition of the insured's health in 1900, and that he subsequently died of consumption; and these assignments under consideration raise the question of the correctness of this ruling. We think the evidence should have been admitted. The defendant had introduced testimony tending to show that during the year 1899, immediately prior to the date of the policy, the insured was afflicted with consumption, and during that time was treated for that disease. It would have been evidence confirmative of this testimony to show that the insured was suffering with and being treated for consumption from a date a few months after the policy was issued till he died with the disease in the spring of 1901. The wellunderstood character of this disease, as being usually slow and lingering, should not be overlooked in determining the relevancy of the excluded evidence. It is doubtless true, we think, that the insured could have been first attacked by the disease subsequent to the date of the policy, and under the evidence the jury could have so found. On the other hand, if the testimony convinced the jury that during the greater part of the year 1900 the insured was afflicted with consumption, and that he died with that disease in the spring of 1901, there would have been

evidence, taken in connection with like testimony as to the condition of the insured previous to the issuance of the policy, to justify the jury in finding that he had the disease at the date he made his answers to the questions of the defendant's medical examiner in November, 1899. Whether the disease, if shown to have been present in the insured in 1900, existed at any prior date, would have to be determined from the progress it had then made, and from the facts disclosed by expert medical testimony. This evidence should go to the jury, with the testimony showing the alleged similar physical condition of the insured in 1899, as bearing upon his condition at the time of the issuance of the policy, and hence upon the truth or falsity of the statements in his application. The weight of the testimony and the credibility of the witnesses were, as in other cases, for the jury. We are therefore of opinion that the trial court was in error in rejecting the testimony offered by the defendant tending to show that the insured was suffering with consumption in 1900 and died of that disease in the spring of 1901.

The numerous remaining assignments of error may be considered without special reference being made to them separately. The correctness of the questions raised by these assignments requires an interpretation of the act of June 23, 1885 (P. L. 134), Purd. Dig. 1046, and its application to the case in hand. The first section of the act is as follows: "Whenever the application for a policy of life insurance contains a clause of warranty of the truth of the answers therein contained, no misrepresentation or untrue statement in such application made in good faith by the applicant, shall effect a forfeiture or be a ground of defense in any suit brought upon any policy of insurance issued upon the faith of such application, unless such misrepresentation or untrue statement relate to some matter material to the risk."

Hartman v. Keystone Insurance Co., 21 Pa. 466, was an action on a life insurance policy in which it was stipulated that any untrue or fraudulent allegations in effecting the insurance should avoid the policy, and that the statements of the assured should form the basis of the contract. Chief Justice Black, delivering the opinion, says: "The plaintiff can only recover if the declaration of the assured, upon the faith of which the risk was taken, was strictly true in every material part. It will not do to say that this was immaterial. Every fact is material which increases the risk, or which, if disclosed, would have been a fair reason for demanding a higher premium. Nor is it of any consequence that the death was not, in fact, produced by a cause connected with the subject of the misrepresentation. One who falsely declares himself free from consumption cannot effect a valid insurance on his own life, though he died of cholera. A sol

dier or sailor who warrants himself a merchant has a void policy, even though he is not slain in battle, or does not perish at sea." In Wall v. Royal Society, 179 Pa. 355, 36 Atl. 748, it is said (Green, J.): "The general doctrine that in actions on policies of insurance, with a warranty of the truth of the facts, the validity of the contract depends on the truth of the warranty, and that the engagement of the policy holder is absolute that the facts shall be as they are stated when his rights under the policy attach, is so very familiar, and has been so frequently declared, that a mere reference to a few of our modern decisions will suffice."

The act of 1885 has frequently been before this court for construction. In the recent case of Lutz v. Metropolitan Life Insurance Co., 186 Pa. 527, 40 Atl. 1104, it was held error to refuse to instruct the jury that, "the applicant and beneficiary in their application having stated and warranted that the insured 'never was sick,' and had no previous 'spitting of blood,' and had consulted no other physician, and had 'no consumption,' and the written and printed statement in the proof of death, and the uncontradicted proof and testimony, showing that he had spitting of blood, was sick previously, had consumption, and had consulted Dr. Muhlenburg, the plaintiff cannot recover." In reversing the trial court, the late Chief Justice Green said: "In a case of very recent occurrence in which we have just filed an opinion (March v. Metropolitan Life Insurance Co., 186 Pa. 629, 40 Atl. 1100, 65 Am. St. Rep. 887), we have had occasion to consider and decide this identical question. We there determined that the act of 1885 had no application in cases where the answer was false, and related to some matter material to the risk. Where it was doubtful whether the matter was material, the question of materiality must be submitted to the jury; but where the matter involved was palpably and manifestly material to the risk, the law was not changed either by the act of 1885 or by any decision before or since. Thus, in the present case, all the questions above enumerated were intrinsically and essentially material to the risk, and have always been so held by all courts of last resort. As the act of 1885 made no change in the law where the matter in question was material to the risk, the duty of the court to pronounce upon this subject was the same after as before the act. As a matter of course there could not be any doubt that previous spitting of blood, or illness, or confinement to the house by reason of illness, or medical service, or the attendance of physicians, or having consumption, were subjects of the most serious and material character, and they have always been so held by the courts. As it was always the duty of the court before the act of 1885 to determine the mate riality of the question and answer in cases which were perfectly manifest and free from

all doubt, and the act makes no change in the law in such cases, so the same duty remains since its passage." We have held it to be error to submit the case to the jury where the uncontroverted evidence shows that the insured made false answers to questions as to when insured was last attended by a physician and for what cause, how long since he had consulted a physician and for what disease, and as to whether he had ever been sick, had any serious illness, had ever consulted a physician, had ever had spitting of blood, did not have consumption, was insured in any other company, had applied for insurance in any other company and been rejected, had always been temperate, had had any medical attendance within the year prior to the application, and if so, state disease and give name of physician. It has always been held that the court must declare as material a false statement to a request that the insured give full particulars of any illness he might have had, and also an untrue statement that no life insurance company had declined or postponed an acceptance of a proposal to insure applicant's life. In each instance it was held to be the duty of the court to pronounce the answer material to the risk.

Under the interpretation placed upon the act of 1885 by the numerous decisions of this court, it is clear that the statements or answers made by the insured in this case, alleged by the defendant to be false, relate to matters material to the risk. The statements were made in reply to questions asked for the evident purpose of ascertaining the true condition of the applicant's health at the time of the delivery of the policy and prior thereto. The acceptance or rejection of the risk, as well as the rate of the premium, would depend on the information elicited by the questions. If the applicant was in bad health, it needs no argument to show that the risk to the company would have been increased, and would therefore have been rejected, or a greater premium would have been demanded. The answers to the other questions were equally material to the defendant company. A truthful response to any of the questions was a prerequisite to intelligent and safe action by the defendant in passing upon the application of the insured.

For the reasons given we are of opinion that the trial court should have instructed the jury that the statements contained in the application, and alleged by the defendant to be false, were material to the risk, and, if they were found to be false or untrue, would avoid the policy. The trial judge was right in refusing to withdraw the case from the jury, as requested in the defendant's twelfth point. The evidence submitted by the parties on the questions at issue was conflicting, and hence the case was necessarily for the jury. The defendant, in the twenty-fifth assignment, alleges that the charge was inadequate. If there is any merit in this assignment, the

error will doubtless be corrected on the next trial.

The judgment is reversed, with a venire de novo.

(205 Pa. 464)

DONOHUGH v. LISTER et al. (Supreme Court of Pennsylvania. May 4, 1903.)

HIGHWAYS-EVIDENCE-PUBLIC USE.

1. A property owner sued to enjoin the maintenance of a gateway from lots into a street which plaintiff claimed as a private way. The court found that for more than 40 years the way had been used as a city street without objection; that no express dedication appeared of record, and the street was not shown on any confirmed plan, yet the city had paved and repaved it, charging the abutting owners with the curbing, and that plaintiff had paid for that on his side; that the gateways had existed for 40 years, though for a part of the time the opening had been boarded up. Held to show a public way.

Appeal from Court of Common Pleas, Philadelphia County.

Bill by William J. Donohugh against Roseanna Lister and Susan Nichols. From a decree dismissing the bill, plaintiff appeals. Affirmed.

Argued before MITCHELL, DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

George C. Bowker and Thomas S. Dono hugh, for appellant. William C. Gross and Harry S. Ambler, Jr., for appellees.

PER CURIAM. Plaintiff, being the owner of houses on Branner's court, or Reese street, and claiming that it was a private way, filed this bill against property holders whose lots abutted at the rear on Reese street, to enjoin the maintenance of a gateway from the lots into the said street, and the use of the street as a passageway into Summer street. The learned judge, sitting as chancellor, found that, for more than 40 years before the filing of the bill Branner's court, now called "Reese Street," had been paved and used as a city street by the public, including the defendants, without objection by the plaintiff or his predecessors in title; that though no express dedication to public use appeared of record, and the street, though plotted on the planbooks of the survey department, was not on any confirmed plan, yet the city had treated it as a public street, had repaved it in 1894 with Belgian blocks, and reset the curbs, charging the plaintiff and defendants, respectively, as abutting owners, for the curbing; and that plaintiff had paid for the curbing on his side, but not that on defendants' side, nor for paving the cartway. He further found that the gateways complained of had existed as openings in the rear walls of defendants' lots for 40 years, and used from time to time, though for a part of that period-not appearing exactly-the openings had been boarded up and disused. On these facts, the judge, quoting Weiss v. So. Bethlehem Boro., 136 Pa. 294,

20 Atl. 801, found that Reese street was a public street, and the use of it by defendants was under their right as abutting owners. He therefore dismissed the bill. We have not been convinced that he was in error in his view of the facts, and on them the law is not open to question.

Decree affirmed, with costs.

(205 Pa. 455)

In re TASKER'S ESTATE. (Supreme Court of Pennsylvania. May 4, 1903.)

WILLS-DEVISAVIT VEL NON-REFUSAL OF ISSUE.

1. Where, on an application for an issue of devisavit vel non on, the ground of lack of testamentary capacity, it appears that the testator, though a man of intemperate habits, was at the time of the execution of the will perfectly sober, and understood exactly what he was doing, the issue was properly denied.

Appeal from Orphans' Court, Philadelphia County.

In the matter of the estate of P. M. Tasker, deceased. From a decree dismissing an appeal from the register of wills, Charles P. Tasker appeals. Affirmed.

The following is the opinion of the court below (Hanna, J.):

"Rice, P. J., in Seiler's Est., 14 Pa. Super. Ct. 504, following many decided cases upon the subject, said: 'It has been held repeatedly that, in determining whether or not there is such a dispute as should be submitted to and passed upon by a jury, it is the duty of the court to consider all the pertinent evidence.' This rule is again announced and reiterated by the Supreme Court in the latest decisions of that tribunal. In Schusler's Est., 198 Pa. 81, 47 Atl. 966, where it was alleged the testator did not possess testamentary capacity, by reason of his long-continued excessive use of intoxicating liquors, and drunkenness almost all the time for a year prior to his death, the orphans' court of Allegheny county considered the evidence produced by the contestants, supplemented by that of the appellee, and found that when not intoxicated the testator had testamentary capacity, and was not intoxicated when he executed the will. They therefore dismissed the appeal. This was affirmed by the Supreme Court. Again, in Masson's Est., 198 Pa. 636, 48 Atl. 811, an issue to determine the genuineness of the signature of testator to his will, alleged to be a forgery, was refused by this court upon the preponderating testimony of the proponents' witnesses that the signature was that of the testator. This was also affirmed by the Supreme Court. And see, also, Englert v. Englert, 198 Pa. 326, 47 Atl. 940, 82 Am. St. Rep. 808, and Friend's Estate, 198 Pa. 363, 47 Atl. 1106. It is therefore well settled that the entire testimony is to be considered in determining the propriety of granting an issue, whether it be to determine the question

of testamentary capacity, or the exercise of undue influence. Even then the rule also firmly established is to be applied, and it is quoted by Rice, P. J., in Seiler's Est., supra, and repeatedly followed by this court, viz.: 'If the testimony be such that after a fair and impartial trial, resulting in a verdict against the proponents of the alleged will, the trial judge, after a careful review of all the testimony, would feel constrained to set aside the verdict as contrary to the manifest weight of the evidence, it cannot be said that a dispute, within the meaning of the act, has arisen. On the other hand, if the state of the evidence is such that the judge would not feel constrained to set aside the verdict, the dispute should be considered substantial, and an issue should be directed. This simple and only safe test is supported alike by reason and authority.'

"In applying these rules for our guidance in the present case, it is first to be said that, with regard to the allegation that in the execution of the will the testator was improperly and unduly influenced, there is not a scintilla. Being unmarried and without issue, it is most natural he should select his grandnephew, who appeared to be worthy, intelligent, and reputable in every respect, as the principal object of his bounty. He is his namesake, and testator was evidently much attached to him, and had contributed towards his maintenance, and education. There is not the slightest proof that any request or solicitation was made by any person to testator that a gift should be made by him for his or her benefit, except that by a sister of testator-and, strange to say, a witness for the contestant, and called to prove the mental unsoundness of her brother-who requested his attorney, whom she knew was preparing his will, to recommend her brother to provide for her and her kindred. This is not consistent with the effort of the witness to cast a doubt upon the testamentary capacity of her brother. And as confirmation of the power of testator's mind to discriminate and select the objects of his bounty, he complied with some of the requests of his sister, and refused others. There was no secrecy attending either the preparation or execution of the will. His intention was known to the persons composing his household. He gave instructions for its preparation to his counsel many days prior to its final engrossing and execution in the privacy of his room. And at its execution no one was present but his counsel, his assistant, well known to and familiarly greeted by testator, his attending physician, and the subscribing witnesses, both disinterested, and strangers to testator until that moment, when they were formally introduced to and recognized by him as the persons who were to witness the execution of his will. The testamentary paper was previously read to testator by his counsel, whose clerk was present at the time, and testator expressed his entire satisfaction therewith.

That he was not intoxicated at the time, and had full knowledge of the testamentary act in which he was then engaged, are clearly shown. All the facts and circumstances connected with the preparation and execution of the will strikingly resemble those shown in the case of Wainwright's Appeal, 89 Pa. 220. The allegation of undue influence need not be further discussed, nor was it urged by counsel.

"The great effort was to show such a state of facts as would justify the granting of an issue to determine the mental capacity of testator, and his ability to intelligently dispose of his estate. A careful examination of the entire testimony negatives the thought. The testator had long been engaged in active business, and continued his attention to his investments and business-being a member of a copartnership-down to the day of his death. He had, until a few years prior to his death, been temperate and abstemious, careful and cleanly in his person, dress, and language, and then began to be the reverse. He used intoxicating liquors to excess, until he undermined his health, and caused the disease which eventually terminated in his death, and became filthy in his personal habits and language. Still he was able to attend to his business, and conversed about its affairs until within a few hours of his death. He was also able to consult his counsel, and give him instructions relative to the disposition of his estate, and continuance of his firm's business after his death, and not only this, but also to provide for the consumption of his remains by fire, rather than burial in the earth, even against the objections of his counse' and the contrary sentiment of his near relatives. But these were unavailing, and the testator insisted upon his own wish being carried out. The will itself, by its careful provisions for the benefit of those whom testator selected as recipients of his bounty, speaks forcibly of his entire testamentary capacity; and, as shown in Schusler's Est., supra, to warrant an issue upon the ground of intoxication, it must be proved that this was the condition of the testator at the time he executed his will. See, also, Probst's Will, 2 Lanc. Law Rev. 97; Hannum v. Worrall, 2 Del. Co. R. 49; Weisman's Est., 5 Pa. Co. Ct. R. 561; and Fow's Est., 147 Pa. 264, 23 Atl. 447.

"The testimony is overwhelming that testator well understood the nature of the act in which he was engaged, not only when he gave the instructions to his counsel, but at the time he affixed his trembling hand and assisted signature to the testamentary paper. That he possessed sufficient intelligence to comprehend what he was doing is also evident from his jocular remark that, his will being executed, the next is the undertaker.' All the witnesses present at the executionevery one disinterested-unite in the opinion that testator evinced an intelligent comprehension of his act, and was fully compe

tent to dispose of his property. This was the testimony of the attending physician, who was also the medical attendant upon the sister of testator, and at whose request he became the physician of testator, and whose testimony is attempted to be overcome by that of another physician, not in attendance upon testator, who related declarations by the attending physician tending to discredit his testimony, but which were not only solemnly denied by him, but which are wholly uncorroborated and incredible. The testimony of this blatant witness, who, by his rudeness and impertinence, overanxiety to blacken the character of a reputable physician, and display of personal animosity towards him in a matter of no personal interest to himself, may well be disregarded, and safely said to have no weight whatever.

"Expert witnesses were also produced by the contestants. They are distinguished and eminent in their profession. But they testified, not from any knowledge of testator, but from hearing portions of testimony for the contestants, and a supposititious state of facts presented. They were careful, cautious, and guarded in the expression of opinion; and it is difficult to gather that, if they had seen and conversed with the testator within forty-eight hours of his death, they would have considered him totally incapable of executing a will.

"Opposed to this is the testimony of those who were actually present at the drafting of the will, its engrossing and submission to testator, beard his assent to its provisions, saw him affix his signature thereto, listened to his remarks and conversation, and had cognizance of his mental and physical condition both previous to and at the time of the execution of the will, and subsequent thereto. Such testimony is entitled to far greater belief and reliance. And it is a noteworthy fact the contestant did not venture to be a witness in his own behalf.

"In conclusion, it need only be said, adopting the language of Paxson, J., in Cauffman v. Long, 82 Pa. 72, 'A man's will, the most solemn instrument he can execute, shall not be set aside without any sufficient evidence to impeach it.' And being of opinion the evidence, if submitted to a jury, would not justify a verdict against the will, the issues prayed for are refused, the petition dismissed, and the action of the register in admitting the will to probate affirmed. The contestant to pay the costs."

Argued before MITCHELL, DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

Charles E. Aull and George W. Boyer, for appellant. C. Berkley Taylor and John G. Johnson, for appellee.

PER CURIAM. This decree is affirmed on the opinion of the president judge of the court below, costs to be paid by the appellant.