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all doubt, and the act makes no change in error will doubtless be corrected on the next the law in such cases, so the same duty re- trial. mains since its passage.” We have held it The judgment is reversed, with a venire to be error to submit the case to the jury de novo. where the uncontroverted evidence shows that the insured made false answers to ques

(205 Pa. 464) tions as to when insured was last attended

DONOHUGH v. LISTER et al. by a physician and for what cause, how long, since he had consulted a physician and for

(Supreme Court of Pennsylvania. May 4, what disease, and as to whether he had ever

1903.) been sick, bad any serious illness, bad ever

HIGHWAYS-EVIDENCE-PUBLIC USE. consulted a physician, had ever had spitting

1. A property owner sued to enjoin the main

tenance of a gateway from lots into a street of blood, did not have consumption, was in- which plaintiff claimed as a private way. The sured in any other company, had applied for court found that for more than 40 years the insurance in any other company and been re

way had been used as a city street without objected, had always been temperate, had had record, and the street was not shown on any

jection; that no express dedication appeared of any medical attendance within the year prior confirmed plan, yet the city had paved and reto the application, and if so, state disease paved it, charging the abutting owners with and give name of physician. It has always

the curbing, and that plaintiff had paid for that

on his side; that the gateways had existed for been held that the court must declare as ma- 40 years, though for a part of the time the terial a false statement to a request that the opening had been boarded up. Held to show insured give full particulars of any illness he

a public way. might have had, and also an untrue state- Appeal from Court of Common Pleas, Phil. ment that no life insurance company had de- adelphia County. clined or postponed an acceptance of a pro

Bill by William J. Donohugh against Roseposal to insure applicant's life. In each in. anna Lister and Susan Nichols. From a destance it was held to be the duty of the court cree dismissing the bill, plaintiff appeals. to pronounce the answer material to the risk. Affirmed. Under the interpretation placed upon the

Argued before MITCHELL, DEAN, FELL, act of 1885 by the numerous decisions of this BROWN, MESTREZAT, and POTTER, JJ. court, it is clear that the statements or an

George C. Bowker and Thomas S. Dono swers inade by the insured in this case, al

hugh, for appellant. William C. Gross and leged by the defendant to be false, relate to

Harry S. Ambler, Jr., for appellees. matters material to the risk. The statements were made in reply to questions asked for PER CURIAM. Plaintiff, being the ownthe evident purpose of ascertaining the true er of houses on Branner's court, or Reese condition of the applicant's health at the time street, and claiming that it was a private of the delivery of the policy and prior there. way, filed this bill against property holders to. The acceptance or rejection of the risk, whose lots abutted at the rear on Reesc as well as the rate of the premium, would street, to enjoin the maintenance of a gate. depend on the information elicited by the way from the lots into the said street, and questions. If the applicant was in bad the use of the street as a passageway into health, it needs no argument to show that the Summer street. The learned judge, sitting risk to the company would have been in- as chancellor, found that, for more than 40 creased, and would therefore have been re- years before the filing of the bill Branner's jected, or a greater premium would have court, now called “Reese Street,” had been beeu demanded. The answers to the other paved and used as a city street by the pubquestions were equally material to the de- lic, including the defendants, without objecfendant company. A truthful response to tion by the plaintiff or his predecessors in any of the questions was a prerequisite to title; that though no express dedication to intelligent and safe action by the defendant public use appeared of record, and the street, in passing upon the application of the in- though plotted on the planbooks of the sursured.

vey department, was not on any confirmed For the reasons given we are of opinion plan, yet the city had treated it as a public that the trial court should have instructed street, had repaved it in 1894 with Belgian the jury that the statements contained in the blocks, and reset the curbs, charging the application, and alleged by the defendant to plaintiff and defendants, respectively, as be false, were material to the risk, and, if abutting owners, for the curbing; and that they were found to be false or untrue, would plaintiff had paid for the curbing on his side, avoid the policy. The trial judge was right but not that on defendants' side, nor for pavin refusing to withdraw the case from the ing the cartway. He further found that the jury, as requested in the defendant's twelfth gateways complained of had existed as openpoint The evidence submitted by the parties ings in the rear walls of defendants' lots for on the questions at issue was conflicting, and 40 years, and used from time to time, though hence the case was necessarily for the jury. | for a part of that period-not appearing exThe defendant, in the twenty-fifth assign- actly-the openings had been boarded up and ment, alleges that the charge was inadequate. disused. On these facts, the judge, quoting If there is any merit in this assignment, the Weiss v. So. Bethlehem Boro., 136 Pa. 294, 20 Atl. 801, found that Reese street was a of testamentary capacity, or the exercise or public street, and the use of it by defendants undue influence. Even then the rule also was under their right as abutting owners. firmly established is to be applied, and it is He therefore dismissed the bill. We have not quoted by Rice, P. J., in Seiler's Est., supra, been convinced that he was in error in his and repeatedly followed by this court, viz.: view of the facts, and on them the law is not 'If the testimony be such that after a fair open to question.

and impartial trial, resulting in a verdict Decree affirmed, with costs.

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 (205 Pa. 455)

weight of the evidence, it cannot be said that In re TASKER'S ESTATE.

a dispute, within the meaning of the act, has (Supreme Court of Pennsylvania. May 4,

arisen. On the other hand, if the state of 1903.)

the evidence is such that the judge would not WILLS-DEVISAVIT VEL NON-REFUSAL OF feel constrained to set aside the verdict, the

ISSUE. 1. Where, on an application for an issue of

dispute should be considered substantial, and devisavit vel non on the ground of lack of tes

an issue should be directed. This simple and tamentary capacity, it appears that the testator, only safe test is supported alike by reason though a man of intemperate habits, was at the and authority.' time of the execution of the will perfectly sober, and understood exactly what he was doing, the

"In applying these rules for our guidance issue was properly denied.

in the present case, it is first to be said that,

with regard to the allegation that in the exAppeal from Orphans' Court, Philadelphia

ecution of the will the testator was improperCounty.

ly and unduly influenced, there is not a scinIn the matter of the estate of P. M. Tasker,

tilla. Being unmarried and without issue, it deceased. From a decree dismissing an ap

is most natural he should select his grandpeal from the register of wills, Charles P.

nephew, who appeared to be worthy, intelliTasker appeals. Affirmed.

gent, and reputable in every respect, as the The following is the opinion of the court principal object of his bounty. He is his below (Hanna, J.):

namesake, and testator was evidently much "Rice, P. J., in Seller's Est., 14 Pa. Super. attached to him, and had contributed towards Ct. 504, following many decided cases upon his maintenance and education. There is not the subject, said: 'It has been held re- the slightest proof that any request or solicipeatedly that, in determining whether or not tation was made by any person to testator there is such a dispute as should be submit- that a gift should be made by him for his ted to and passed upon by a jury, it is the or her benefit, except that by a sister of tesduty of the court to consider all the pertinent tator-and, strange to say, a witness for the evidence.' This rule is again announced and contestant, and called to prove the mental reiterated by the Supreme Court in the latest unsoundness of her brother-who requested decisions of that tribunal. In Schusler's Est., his attorney, whom she knew was preparing 198 Pa. 81, 47 Atl. 966, where it was alleged his will, to recommend her brother to prothe testator did not possess testamentary ca- vide for her and her kindred. This is not pacity, by reason of his long-continued ex- consistent with the effort of the witness to cessive use of intoxicating liquors, and drunk. cast a doubt upon the testamentary capacity enness almost all the time for a year prior of her brother. And as confirmation of the to his death, the orphans' court of Allegheny power of testator's mind to discriminate and county considered the evidence produced by select the objects of his bounty, he complied the contestants, supplemented by that of the with some of the requests of his sister, and appellee, and found that when not intoxicated refused others. There was no secrecy atthe testator had testamentary capacity, and tending either the preparation or execution of was not intoxicated when he executed the the will. His intention was known to the will. They therefore dismissed the appeal. persons composing his household. He gave This was affirmed by the Supreme Court. instructions for its preparation to his counsel Again, in Masson's Est., 198 Pa. 636, 48 Atl. many days prior to its final engrossing and 811, an issue to determine the genuineness of execution in the privacy of his room. And the signature of testator to his will, alleged to at its execution no one was present but his be a forgery, was refused by this court upon counsel, his assistant, well known to and fathe preponderating testimony of the propon- miliarly greeted by testator, his attending ents' witnesses that the signature was that physician, and the subscribing witnesses, both of the testator. This was also affirmed by | disinterested, and strangers to testator until the Supreme Court. And see, also, Englert that moment, when they were formally introv. Englert, 198 Pa. 326, 47 Atl. 940, 82 Am. duced to and recognized by him as the perSt. Rep. 808, and Friend's Estate, 198 Pa. song who were to witness the execution of 363, 47 Atl. 1106. It is therefore well settled his will. The testamentary paper was prethat the entire testimony is to be considered viously read to testator by his counsel, whose in determining the propriety of granting an clerk was present at the time, and testator issue, whether it be to determine the question expressed his entire satisfaction therewith That he was not intoxicated at the time, and tent to dispose of his property. This was had full knowledge of the testamentary act the testimony of the attending physician, in which he was then engaged, are clearly who was also the medical attendant upon the shown. All the facts and circumstances con- sister of testator, and at whose request he nected with the preparation and execution of became the physician of testator, and whose the will strikingly resemble those shown in testimony is attempted to be overcome by the case of Wainwright's Appeal, 89 Pa. 220. that of another physician, not in attendance The allegation of undue influence need not be upon testator, who related declarations by further discussed, nor was it urged by coun- the attending physician tending to discredit sel.

his testimony, but which were not only "The great effort was to show such a state solemnly denied by him, but which are of facts as would justify the granting of an wholly uncorroborated and incredible. The issue to determine the mental capacity of tés- testimony of this blatant witness, who, by tator, and his ability to intelligently dispose his rudeness and impertinence, overanxiety of his estate. A careful examination of the to blacken the character of a reputable phys. entire testimony negatives the thought. The ician, and display of personal animosity totestator had long been engaged in active busi- wards him in a matter of no personal interness, and continued his attention to his in- est to himself, may well be disregarded, and vestments and business-being a member of safely said to have no weight whatever. a copartnership-down to the day of his "Expert witnesses were also produced by death. He had, until a few years prior to the contestants. Tbey are distinguished and his death, been temperate and abstemious, eminent in their profession. But they testicareful and cleanly in his person, dress, and fied, not from any knowledge of testator, language, and then began to be the reverse: but from hearing portions of testimony for He used intoxicating liquors to excess, until the contestants, and a supposititious state of be undermined his health, and caused the facts presented. They were careful, caudisease which eventually terminated in his tious, and guarded in the expression of opindeath, and became filthy in his personal hab- ion; and it is difficult to gather that, if they its and language. Still he was able to at. had seen and conversed with the testator tend to his business, and conversed about its within forty-eight hours of his death, they affairs until within a few hours of his death. would have considered him totally incapable He was also able to consult his counsel, and of executing a will. give him instructions relative to the disposi- “Opposed to this is the testimony of those tion of his estate, and continuance of his who were actually present at the drafting of firm's business after his death, and not only the will, its engrossing and submission to this, but also to provide for the consumption testator, beard his assent to its provisions, of his remains by fire, rather than burial in saw him affix his signature thereto, listened the earth, even against the objections of his to his remarks and conversation, and had counse' and the contrary sentiment of his cognizance of his mental and physical condinear relatives. But these were unavailing, tion both previous to and at the time of the and the testator insisted upon his own wish execution of the will, and subsequent therebeing carried out. The will itself, by its to. Such testimony is entitled to far greater careful provisions for the benefit of those belief and reliance. And it is a noteworthy whom testator selected as recipients of his fact the contestant did not venture to be a bounty, speaks forcibly of his entire testa- witness in his own behalf. mentary capacity; and, as shown in Schus- In conclusion, it need only be said, adoptler's Est., supra, to warrant an issue upon ing the language of Paxson, J., in Cauffman the ground of intoxication, it must be proved v. Long, 82 Pa. 72, 'A man's will, the most that this was the condition of the testator at solemn instrument he can execute, shall not the time he executed his will. See, also, be set aside without any sufficient evidence Probst's Will, 2 Lanc. Law Rev. 97; Hannum to impeach it.' And being of opinion the v. Worrall, 2 Del, Co. R. 49; Weisman's Est., evidence, if submitted to a jury, would not 5 Pa. Co. Ct. R. 561; and Fow's Est., 147 justify a verdict against the will, the issues Pa. 264, 23 Atl. 447.

prayed for are refused, the petition dismiss"The testimony is overwhelming that tes- ed, and the action of the register in admittator well understood the nature of the act ting the will to probate affirmed. The conin which he was engaged, not only when he testant to pay the costs." gave the instructions to his counsel, but at Argued before MITCHELL, DEAN, FELL, the time he affixed his trembling hand and BROWN, MESTREZAT, and POTTER, JJ. assisted signature to the testamentary paper. That he possessed sufficient intelligence to

Charles E. Aull and George W. Boyer, for comprehend what he was doing is also evi

appellant. C. Berkley Taylor and John G. dent from his jocular remark that, his will

Johnson, for appellee. being executed, the next 'is the undertaker.' All the witnesses present at the execution- PER CURIAM. This decree is affirmed on every one disinterested-unite in the opin- the opinion of the president judge of the ion that testator evinced an intelligent com- court below, costs to be paid by the appelprehension of his act, and was fully compe

lant.

а

(205 Pa. 479)

any he had, chose to demur, and the court BRIDGEMAN BROS. CO. V. SWING et al. had a right to hold him to the strict legal (Supreme Court of Pennsylvania. May 4, consequences. 1903.)

Judgment affirmed. ASSUMPSIT-STATEMENT-SUFFICIENCY

JUDGMENT BY DEFAULT. 1. A statement in an action of assumpsit, setting forth a debt on book account for mer

(205 Pa, 466) chandise sold and delivered to defendants at

HUNTER V. FORSYTE. their request, that the charges were just and reasonable, and setting out a copy of the ac

(Supreme Court of Pennsylvania. May 4, count sued on, is sufficient to require an affida

1903.) vit of defense.

JUDGMENT-RULE TO VACATE-AFFIDAVIT OF 2. Where defendant in assumpsit demurs to a

DEFENSE. statement, and the court holds it sufficient, it 1. Where an affidavit of defense is not filed may enter judgment against the defendant with

in time, but comes before the court on a rule out giving him leave to file an affidavit of de

to open judgment, regularly entered, the court fense.

will examine the averments, and require furAppeal from Court of Common Pleas, Phil

ther evidence as to the facts, as in other cases

of au application to open judgment. adelphia County.

2. In an action on a note, judgment was renAction by the Bridgeman Bros. Co. against dered for want of affidavit of defense. ThereThomas C. Swing and William H. Bateman,

after, on motion to open judgment, an affidavit Jr. From a judgment entering judgment on

of defense was filed, alleging "that it does not

appear from the plaintiff's statement of claim demurrer to statement, defendants appeal. that the note was stamped.” Held, that such Affirmed.

an averment was mere argumentative de

nial, and a technical objection to the pleading, The grounds of demurrer were as follows: which is not the office of the affidavit of de"(1) Said statement fails to disclose a de- fense or an application to open judgment. livery of any goods or chattels by the plain- Appeal from Court of Common Pleas, Philtiff to the defendants. (2) The statement of

adephia County. claim fails to show any liability on the part action by John B. Hunter, doing business of the defendants, or either of them. (3) as John B. Hunter & Co., against William F. The alleged copy of plaintiff company's book Forsyth. Judgment for plaintiff. From an of original entry, upon which the action is order discharging a rule to open.it, defendbased, fails to disclose any charge against ant appeals. Affirmed. the defendants by the plaintiff company."

Judgment was entered for want of an The court found that the statement was suffi

affidavit of defense on May 16, 1902. Upon cient, and entered judgment in favor of the

the following day defendant filed an affidaplaintiff, denying defendants' request for

vit of defense, which was as follows: "Deleave to file an affidavit of defense on the

fendant avers that the said note was given merits.

by deponent without consideration, and was Argued before MITCHELL, DEAN, FELL,

given for accommodation of one Elworth B. BROWN, MESTREZAT, and POTTER, JJ.

Shearer, who was indebted or about to beJ. H. Brinton, for appellants. Julius O. come indebted to the plaintiff. The said note Levi, for appellee.

was given to guaranty the indebtedness of

said Shearer to the plaintiff. Defendant PER CURIAM. The procedure act of 1887 avers that it was well known to said plaintiff relieved plaintiffs from a certain amount of that said note was given by defendant for formality in the statement of their claims, the accommodation of said Shearer. Plainbut not from any obligations of substance tiff knew that the said note was given to in the stated cause of action, Fritz v. Hath- guaranty the said Shearer's indebtedness, away, 135 Pa, 274, 19 Atl. 1011. But if the and that Shearer was to pay the said note; substance was there, the act was not in- that the defendant was never notified as to tended to increase mere technicality of pres- the fact or amount of said Shearer's indebtentation. The statement in the present edness, and said plaintiff never brought suit case sets forth an indebtedness on "a book against the said Shearer, and has never made account for merchandise sold and delivered any attempt to collect from the said Shearer to the defendants at their request," with a money which may be due, if any money be further averment that the charges are "just due from said Shearer to said plaintiff. Deand reasonable," and a copy of the account, fendant further avers that the indebtedness, showing in detail the articles and their prices. to guaranty which the said note was given, This would have been entirely good as a was incurred by the sale and delivery of common count with bill of particulars under hardware by said plaintiff to said Shearer; the previous practice, and no defect has been that defendant was induced to sign the said pointed out as to precision or certainty of note and guaranty the said indebtedness of parties and amounts, which would make it said Shearer to said plaintiff upon the faith bad in any of the features the procedure act of representations made to this defendant by was intended to require. The defendant, in- the said Shearer, and concurred in by said stead of filing an affidavit of his defense, if plaintiff, that the actual, bona fide amount

1 2. See Pleading, vol. 39, Cent. Dig. $ 570.

2. See Judgment, vol. 30, Cent. Dig. $295.

of the contract or indebtedness of said Shear- avers to be at least 10 per centum of the er to said plaintiff was $1,353.25, viz., the actual, bona fide indebtedness of said Shearer amount of the note upon which suit is to said plaintiff.” It is objected to this affi. brought. Defendant subsequently has ascer- davit that it is vague, inter alia, in not stattained that the said Hunter and said Shearer ing whether the debt of Shearer was due at unlawfully agreed together to add to the said the date of the note, or was to be incurred contract or indebtedness of Shearer to said thereafter; in not stating either the actual Hunter a certain sum, in fraud of this plain. | debt, or the amount added, with any certaintiff's rights, which this defendant is informed, ty; and especially in not averring any repbelieves, and avers to be at least ten per resentations by plaintiff, except inferentially, centum of the actual, bona fide indebtedness by the use of the word "concurred." For of said Shearer to said plaintiff, which fraud- these and perhaps other objections, the court ulent and fictitious sum, being added to the did not deem the defense sufficiently made actual indebtedness of said Shearer to said out. It was entitled to satisfactory deposiplaintiff, makes the sum of $1,353.25 for tions or further evidence, and we cannot which the defendant was induced to become say that there was error in requiring somea guarantor. Defendant further avers that thing more than this affidavit. the statement of claim filed by the plaintiff is A further defense is based on the want of insufficient to support a judgment in this a revenue stamp on the note, as required by case, in this: that it does not appear from the act of Congress of June 13, 1898, 30 Stat. the plaintiff's statement of claim filed that 448, c. 448 [U. S. Comp. St. 1901, p. 2284). the note upon wbich plaintiff brings this suit It was held in Chartiers, etc., Turnpike Co. was stamped with internal revenue stamps of v. McNamara, 72 Pa. 278, 13 Am. Rep. 673, the United States of America, as required by that the act of Congress of 1866 (14 Stat. 98, the act of Congress in force on the date of c. 184) prohibiting the admission in evidence the execution of said note, viz., March 20, "in any court" of an unstamped paper ap1899; that the same, not being stamped ac- plied to state as well as federal courts. That cording to law, is, under said act of Congress, decision was made by a divided court, and to be deemed invalid and of no effect. All has never commanded the general acquiesof which is true, and defendant expects to be cence of the profession. The decisions in able to prove the same at the trial of the other courts of high authority are against the cause." The court discharged the rule to power of Congress to interfere, even indiopen the judgment.

rectly, with the rules of evidence in state Argued before MITCHELL, DEAN, FELL, courts. Whether the same construction would BROWN, MESTREZAT, and POTTER, JJ. now be given to the act of 1898 may there

fore be open to doubt. But the question does William F. Johnson and A. L Lewis, for

not arise in the present case, for the affidavit appellant. H. B. Hodge, C. R. Woodruff,

is not that the note was not duly stamped, and W. D. Neilson, for appellee.

but that "it does not appear from the plain

tiff's statement of claim" that it was so PER CURIAM. When an affidavit of de- stamped. This is merely an argumentative fense is filed, and its sufficiency is in ques- denial, and amounts, at most, to a technical tion, the court must accept it for verity, and objection to the pleadings, wbich is not the regard all the facts properly set forth in it as office of an affidavit of defense, and still less proved. But where the affidavit is not filed of an affidavit to open a judgment. in time, as in the present case, and comes Judgment affirmed. before the court only on a rule to open a judgment regularly entered, the court is entitled to examine the averments critically,

(205 Pa. 435) and to require further evidence as to the

In re STURGIS' ESTATE. facts, as in other cases of application to open

Appeal of POTTER. judgments. The court below was not satisfied that a prima facie defense was sufficient

(Supreme Court of Pennsylvania. May 4,

1903.) ly made out to justify sending this case to a

WILL-CONSTRUCTION-ESTATE CONVEYED. jury. Plaintiff sued on a promissory note of

1. Testatrix devised the residue of her estate which defendant was the maker. The de

to her seven childreu. If any of them were fense was that defendant was a guarantor dead, leaving issue or married, she gave the for the real debtor, one Shearer, and made share of such deceased child to the uses of his

or her will; and if such child should have the note on the faith of representations made

died intestate, leaving issue or a widow, such by Shearer, "and concurred in by the plain

share should go to the persons and for the estiff,” that it represented the actual debt of tates they would have taken, had such child Shearer to plaintiff, but that defendant had

died the owner of that share. In the event

of the death of any of the devisees before testa“subsequently ascertained that the said Hun

trix, so much of the share of such child as did ter and said Shearer unlawfully agreed to- not vest by the provisions of the will was gether to add to the said contract or indebt- given to the persons and the estates to whom edness of Shearer to said Hunter a certain

the residue of testatrix's estate was devised.

One son died before testatrix, leaving a widow sum, in fraud of this plaintiff's rights, which

and children; giving to his widow all his esthis defendant is informed, believes, and tate for life, with full power to dispose of the

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