The provision for him was unqualifiedly re-vision for Lafayette A. Garnier had not been voked, and what the testatrix had originally revoked? Clearly one-fourth; and in demintended for him was undisposed of by her onstration of this nothing can be profitably at the time of her death. It could therefore go only to her next of kin. Waln's. Estate, 156 Pa. 194, 27 Atl. 59, is conclusive of this. Waln, the testator, in a will dated April 7, 1882, disposed of his residuary estate as follows: added to the following from the opinion of the learned president judge of the court below, entering judgment for the plaintiff for the purchase price of a one-fourth interest: "The plaintiff contends that he is entitled to one-half of the residue. The defendant's position is that, at most, he could only claim onefourth. In Jarman on Wills, vol. 2, page 756, it was said: 'Where a gift is to the children of several persons, whether it be the children of A. and B., or to the children of A. and the children of B., they take per capita, not per stirpes. The same rule applies where a devise or bequest is (made to a person and the children of another person; or) to a person described as standing in a certain relation to the testator and the children of another person standing in the same relation, as to "my son A. and the children of my son B.," in which case A. takes only a share equal to that of one of the chilthe testator had a distribution according to the dren of B., though it may be conjectured that The testator died in the following year. The fund before the court below for distribu-statute in his view. (So if the gift be to A. tion was that part of testator's residuary estate which would have passed under the residuary clause to Edward, had he lived. The auditing judge awarded it to the surviving sisters. Edward's children claimed the onefourth of it, on the ground that their uncle had died intestate as to it, and on their exception to the adjudication their claim was sustained. This we affirmed, following the rule as laid down by Sir. Thomas Plumer, M. R., in Skrymsher v. Northcote, 1 Swanst. 560, that "part of the residue of which the disposition fails will not accrue in augmentation of the remaining parts of a residue, but, instead of resuming the nature of residue, devolves as undisposed of;" and of this rule Mr. Justice Mitchell said it applies "whether the failure arises because the gift is void, or lapsed, or revoked." [3] In entering judgment for the plaintiff the learned court did so on the theory that he had acquired only an undivided fourth interest in the residuary estate of his sister. He has not appealed from this, but now contends before us that his interest is an undivided half, and that we ought to so hold by entering judgment on the case stated in double the amount for which it was entered below. If we possess the power to do so, we shall not exercise it, for we agree with the court below that the appellant acquired only a one-fourth interest in the residuary estate of the testatrix. She bequeathed and devised, "divided into equal parts" her entire residuary estate, real and personal, to Lafayette Adrian Garnier, if living at the time of her death, and to the children of Janetta Laing Macafee. The three children of Mrs. Macafee, who survived the testatrix, are Frieda Macafee, Gladys Macafee, and Colin Macafee. What share would each of them and B. and their children, or to a class and their children, every individual coming within the terms of the description, as well children as parents, will take an equal proportion of the fund; that is, the distribution will be made per capita). But this mode of construction will yield to a very faint glimpse of a different intention in the context.' In Bender's Appeal, 3 Grant [Cas.] 210, it was said: "The words "equally to be divided," when used in a will, mean a division per capita and not per stirpes, whether the devisees be children and grandchildren, brothers or sisters and nephews and nieces, or strangers in blood to the testator.' In Ashburner's Estate, 159 Pa. 545, 28 Atl. 361, Judge Penrose said: 'A bequest to a desgift to ascertained individuals, which, in the ignated person and the children of another is a absence of evidence of a contrary intent, is said to confer an equal share upon all alike; and the mere fact that the parent of the children is dead, and that he bore the same relation to the testator that the designated donee does, or that had there been no will the parties would does not change the result. The testator knows, have taken per stirpes under the intestate laws, or is supposed to know, exactly or approximately, the number of beneficiaries whose names are not mentioned, and as he classes them with one whom he designates, there is, perhaps, a presumption of equality, though, as said by Lord Eldon, in Lincoln v. Pelham, 10 Vesey, 175, in applying the rule the real intention is this will, we must bear in mind that Lafayette frequently to the contrary.' When we look at Adrian Garnier was really referred to as if he were a stranger to the testatrix. In the third clause of her will she said: 'I have but one heir, my only brother, Lafayette, of Easton Pennsylvania.' Adrian as a matter of fact, was only her grand-nephew. As admitted in the case stated, the children of Janetta Laing Mac trix. In our judgment, when the testatrix said, afee are not related in any way to the testa'I will, bequeath and devise, divide into equal parts,' there is no room for any doubt as to (108 A.) TIVE DAMAGES RECOVERABLE FOR INTERFER- Punitive or exemplary damages may be recovered when the facts show wanton or malicious injuries to, or interference with, the tenant's possession and enjoyment of the leased premises by the landlord. alive, and she knew that the children of Janetta | 6. LANDLORD AND TENANT 132(3)-PUNILaing Macafee were alive, and she wanted them to have each an equal part. It must be borne in mind that in this will there are no such words as are found in some wills; for example, the word 'between,' which is the controlling word in Hick's Estate, 134 Pa. 507, 19 Atl. 705; Ihrie's Estate, 162 Pa. 369, 29 Atl. 750, and Ghriskey's Estate, 248 Pa. 90, 93 Atl. 824, and other cases; and, although the words 'heirs and assigns' are found in this will, yet they only indicate the kind of estate that is given to the children." Judgment affirmed. (265 Pa. 321) MINNICH v. KAUFFMAN. (Supreme Court of Pennsylvania. June 21, 1919.) 7. INJUNCTION 37-MANDATORY ORDER RESTORING TENANT TO POSSESSION, WILL NOT A mandatory order, restoring a tenant to possession, will not issue after a completed eviction, where it is apparent the proceeding is merely an ejectment bill, which could not be sustained in a court of equity, and plaintiff's remedy at law for damages is adequate. Appeal from Court of Common Pleas, York County. Bill in equity for injunction by John W. Minnich against William Kauffman. From a decree certifying case to the law side of the 1. TRIAL 11(3)—INJUNCTION SUIT TO RE- court, plaintiff appeals. Appeal dismissed. A tenant's bill for injunction preventing further interference by defendant and for a mandatory order, restoring him to possession of premises from which he had been evicted, was properly certified to the law side of the court under Act June 7, 1907 (P. L. 440), as there is an adequate remedy at law to recover damages for the wrongful eviction. The court certified the case to the law side of the court for the reasons stated in an opinion by Wanner, P. J., in the court of common pleas, as follows: The plaintiff, who was the lessee of the defendant's cigar factory, alleged in his bill filed in this case that his landlord had unlawfully evicted him from the premises, and locked up the buildings so that neither he nor his employés could re-enter or resume business therein. The prayer of the bill was for a prelimiwith his business, and for a mandatory order, restoring him to the possession of the premises. 2. LANDLORD AND TENANT 130(2)-DEPRIV-nary injunction to prevent further interference ING TENANT OF OCCUPATION OF PREMISES BREACH OF COVENANT FOR QUIET ENJOY MENT. To deprive a tenant of the use and occupation of leased premises is a breach of landlord's covenant of quiet enjoyment and possession of premises. 3. LANDLORD AND TENANT 130(1)-COVE NANT AS TO QUIET ENJOYMENT IMPLIED. A landlord's covenant of quiet enjoyment and possession, when not expressly set forth, will be implied from the usual formal terms of the lease, "lease and let" or "demise and let." 4. LANDLORD AND TENANT 130(3)-TENANT MAY RECOVER DAMAGES FOR BREACH OF COVE NANT OF QUIET ENJOYMENT. The breach of a covenant of quiet enjoy ment of possession either express or implied, entitles the tenant to recover damages in an action of covenant or in an action of assumpsit. 5. LANDLORD AND TENANT 130(4)-MEASURE OF DAMAGES FOR BREACH OF COVENANT TO QUIET ENJOYMENT STATED. A tenant may recover, in an action of trespass, for all losses actually sustained, or which he will necessarily sustain as a result of the unlawful eviction; the measure of damages including profits during the unexpired term of lease. [1] A preliminary injunction was granted upon the bill, and injunction affidavits filed in support thereof, and a time fixed for the hearing. In the meantime the defendant filed an answer, denying the jurisdiction of the court, and moved the court to dismiss the plaintiff's bill. He now asks that the question of jurisdiction thus raised be decided by the court in limine, before proceeding to a hearing on the merits of the case. This is clearly the order of practice prescribed by the Act of June 7, 1907 (P. L. 440). But where the court refuses to assume jurisdiction, the act makes it the duty of the court to certify the case to the law side of the court for further proceedings therein, and not to dismiss the bill, as prayed for in this case. This is the specific direction of the act itself and is the proper and well-settled practice under numerous decisions construing the statute. Kramer v. Slattery, 260 Pa. 234, 103 Atl. 610; Nanheim v. Smith, 253 Pa. 380, 98 Atl. 602; Musselman v. Myers et al., 240 Pa. 5, 87 Atl. 425; Freseman v. Purvis, 51 Pa. Super. Ct. 506. The question whether or not the court has equity jurisdiction in this case depends on whether or not the plaintiff has an adequate remedy at law for the redress of the wrongs and injuries of which he complains. The bill alleges the complete eviction of himself and his employés from the leased premises by order of his landlord, and the locking For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes of the buildings so that there can be no re-entry [ 13 Pa. Super. Ct. 244; Tricket on Landlord & upon the same by the plaintiff or his agents. Tenant, p. 362; Hendler v. Quigley, 38 Pa. Super. Ct. 39-45. It also sets forth at length the resulting losses already sustained, and those that will necessarily follow, and avers that, because there is no adequate remedy at law for the same, the plaintiff will suffer irreparable injury, unless granted an equitable remedy. [2-4] The text-books and the decisions of the courts, however, recognize several wellsettled actions at law, whereby damages may be recovered for the wrongful eviction of a tenant by his landlord. To deprive the lessee of the use and occupation of the leased premises is a breach of the landlord's covenant of quiet enjoyment and possession of the premises. Such a covenant, when not expressly set forth, will be implied from the use of the usual formal terms of the lease, viz. "lease and let," or "demise and let," etc. But whether express or implied, the breach of such covenants by the lessor entitles the tenant to recover damages in an action of covenant (or in an action of assumpsit, under our present system of pleading), and the measure of his damages for such eviction has been passed upon and repeatedly construed and determined by the courts. In some cases the form of action adopted was trespass. Tricket on Landlord & Tenant, pp. 359, 363; Johnson v. Phila., 64 Pa. Super. Ct. 278; Hendler v. Quigley, 38 Pa. Super. Ct. 39-45; Gallagher v. Burke, 13 Pa. Super. Ct. 244; Steel v. Frick, 56 Pa. 172; Seyfert v. Bean, 83 Pa. 450; O'Neal v. Sneeringer, 12 York Leg. Rec. 141; 9 Am. & Eng. Ency. of Law 1015; 24 Cyc. 1057-1060, 1072-1074. In a recent case the Supreme Court expressly holds that where there has been a wrongful eviction of the tenant by the landlord, the former may waive his action on the breach of the covenant, and bring trespass at once, for the resulting damages. Schienle v. Eckels, 227 Pa. 305, 76 Atl. 15. [5, 6] In the light of these authorities there seems to be no doubt that the plaintiff has a remedy at law against the defendant for the eviction complained of in his bill, and the only remaining question for consideration is whether or not it is adequate and suffieient to enable him. to recover such damages as he may sustain. The general rule laid down in the cases cited is that the lessee may recover in an action of trespass for all losses which he can prove he has actually sustained, or which he will necessarily sustain, under the circumstances, as a result of the unlawful eviction. The measure of damages has been liberally extended to include even well-established profits of the business during the unexpired term of the lease. It has also been held that punitive or exemplary damages may be recovered, when the facts show wanton or malicious injuries to, or interference with, the lessee's possession and enjoyment of the property. Gallagher v. Burke, No wider latitude in the proofs of loss could be allowed in the trial of this case in a court of equity, and no new grounds of recovery could be introduced therein, which would make the equitable remedy more complete and adequate than that which is now afforded the plaintiff by the common-law action of trespass. It is the settled policy of the law under such circumstances to adopt no method of procedure which would deprive the defendant of his right of trial by jury, which has always been favored by the law. In this case the eviction of the tenant was a fully completed act when suit was brought, and all of its consequences will follow without regard to, and unaffected by, the form of action, or the court in which the issue is tried. The case does not present a succession of trespasses or a continuing wrongful act of the plaintiff which would require a multiplicity of suits in a common-law court, in applying a remedy for the injuries complained of. The circumstances therefore do not present a case in which irreparable injury would follow to the plaintiff, by refusing him an equitable remedy, and remanding him to the courts of law, for the recovery of his damages. [7] It is well settled, also, that a mandatory order, restoring the plaintiff to possession, will not issue after a completed eviction like this, where it is apparent that the proceeding is merely an ejectment bill, which could not be sustained in a court of equity. Fredericks et al. v. Huber et al., 180 Pa. 572, 37 Atl. 90. We are therefore of the opinion that the plaintiff should have brought his action at law, instead of filing this bill in equity, and under the provisions of the act of June 7, 1907 (P. L. 440), this case should be certified into the common-law side of the court, at the plaintiff's cost. A proper decree to that end will be signed by the court upon presentation by the defendant's counsel. A decree was entered accordingly. Defendant appealed. Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, WALLING, SIMPSON, and KEPHART, JJ. John A. Hoober, of York, for appellant. Frederick B. Gerber and W. F. Bay Stewart, both of York, for appellee. PER CURIAM. This appeal is dismissed, at the costs of the appellant, on the opinion of the learned court below certifying the cause to the law side of the court. (265 Pa. 208) GLENN v. STEWART. (108 A.) brought this ejectment for the land so pur- the rule in Shelley's Case applies that— "Whenever a man, by any gift or conveyance takes an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs in fee or in tail, the word 'heirs' is a word of limitation and not of purchase." 34 Cyc. 1819. It has been followed in a multitude of our cases. We will only refer to Com. Ins. & Tr. Co. v. Gross, 261 Pa. 476, 104 Atl. 684; Mylin v. Hurst, 259 Pa. 77, 102 Atl. 429; Reutter v. McCall, 192 Pa. 77, 43 Atl. 398; Hahne et al. v. Meyer, 173 Pa. 151, 33 Atl. 1028; Appeal from Court of Common Pleas, Erie Grimes v. Shirk, 169 Pa. 74, 32 Atl. 113; County. Argued before BROWN, C. J., and ZER, WALLING, SIMPSON, and HART, JJ. FRA- Hiester v. Yerger, 166 Pa. 445, 31 Atl. 122; Ejectment for land in Millcreek Township Cockins and Harper's Appeal, 111 Pa. 26, by Henry Glenn against John Stewart. 2 Atl. 363; Breinig v. Oldt, 45 Pa. Super. Ct. Judgment entered for defendant on the 629. the 629. The word "heirs" is a word of limitapleadings, and the plaintiff appeals. Af- tion, and not of purchase (Appeal of Cockfirmed. ins and Harper, supra; Yarnall's Appeal, 70 Pa. 335, 342; Criswell's Appeal, 41 Pa. 288; McKee v. McKinley, 33 Pa. 92); and the plaintiff, as the child of James A. Glenn, inherits from him, and not as a devisee under the will of Walter Glenn. This thought is emphasized in the last clause above quoted, "The same shall descend to his (James A. Glenn's) legal heirs." The use of the word "descend" clearly makes the first taker the source of title for his heirs. See Lauer v. Hoffman, 241 Pa. 315, 88 Atl. 496, 47 L. R. M. Levant Davis and Charles P. Hewes, both of Erie, for appellant. Charles A. Mertens and S. Y. Rossiter; both of Erie, for appellee. WALLING, J. This action of ejectment turns upon whether a devisee took a fee or a life estate. Walter Glenn, late of Mill-A. (N. S.) 676; Curry v. Patterson, 183 Pa. creek township, Erie county, died about 1873, and his last will, duly probated, provides, inter alia: "I give and bequeath to my son, James A. Glenn, my homestead farm on which I now reside situated in Millcreek township, Erie County, Pa., and containing about 55 acres, more or less. I also give and bequeath to my said son James A. Glenn my farm known as the William Robeson Farm situated in Millcreek township, Erie county containing 26 acres of land, more or less. I further order and direct that my said son James A. Glenn shall not alien, sell, assign, mortgage or in any manner incumber any of the lands or real estate above bequeathed to him by me during his natural lifetime, but the same shall descend to his legal heirs." 238, 38 Atl. 594; Guthrie's Appeal, 37 Pa. 9. The contention that a fee vested in James A. Glenn is stronger here than in many of the cases cited, for the devise to him of the land in the first above-quoted clause of the will, under the act of April 8, 1833 (P. L. 250, § 9; 4 Stewart's Purdon, p. 5137), vests in him an estate of inheritance, not cut down by the subsequent language, forbidding the sale or incumbrance of the property, which provision is void as an attempted restraint upon alienation. The power of alienation is necessarily and inseparably incident to an estate in fee, and cannot be destroyed by any condition in the grant of devise under which such estate vests. Doebler's Appeal, 64 Pa. 9; Kepple's Appeal, 53 Pa. 211; Jauretche In 1878 the land last above mentioned was v. Proctor, 48 Pa. 466, 471; Naglee's Appeal, sold by the sheriff, on an execution against 33 Pa. 89; Reifsnyder v. Hunter, 19 Pa. 41; James A. Glenn, as his property, and bought Walker et ux. v. Vincent, 19 Pa. 369. The by the defendant. He died in 1916. There- contention that the estate in James A. Glenn after his only child and heir, the plaintiff, is reduced to one for life by the fact that For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Action by Frick & Lindsay Company der making absolute rule for judgment affidavit of defense. The court made the rule absolute in an opinion by Bouton, P. J., which was as fol lows: the restriction upon alienation continues J during his natural lifetime is not tenable. against R. E. Kent and another. From an orThat simply attempts to reduce his power over the property, not his interest therein; while to cut down a fee previously given to an estate for life requires clear and unequivocal language. See Hoopes's Estate, 231 Pa. 232, 80 Atl. 537; Kreb's Estate, 184 Pa. 222, 39 Atl. 66; McIntyre v. McIntyre, 123 Pa. 329, 16 Atl. 783, 10 Am. St. Rep. 529. The rule in Shelley's Case is a fixed rule of law, not depending upon the intention of the testator; in fact it generally does violence thereto, and is applied even contrary to his express direction. See McElwain V. Whitacre, 251 Pa. 279, 96 Atl. 655; Leonard v. Leister, 233 Pa. 475, 82 Atl. 753. It subordinates the particular to the general intent. The question is not what the testator meant,ting up of the articles sold, and all to be in good but what is the meaning of his words. working order, and condition. Among the articock's Appeal, 112 Pa. 532, 5 Atl. 56. cles was one 30-horse power high-stage compres that this case is free from doubt. sor of the capacity of 250,000 cubic feet per 24 hours. Defendant afterward ordered the goods shipped from Kane to Tiona, Pa., which order plaintiff complied with and claimed an additional amount for freight of $35.67. Defendant paid under the terms of the contract the sum of $1,000, and plaintiff claims a balance of $1,800.67, with interest from November 17, 1916. Han- The plaintiff brought suit to recover for certain machinery, etc., sold defendants on a writ ten contract, a copy of which is attached to plaintiff's statement of claim. This machinery was to be delivered f. o. b. at Kane, Pa., for the sum of $2,765, and in said contract plaintiff agreed to furnish a man to supervise the set [2] Appellant complains because the lower court disposed of the case as one of law upon the pleadings; but such complaint is without merit, as the whole case depends upon the record, and there is no issue of fact. Even the sheriff's sale is expressly admitted in appellant's printed argument. Aside from The averments in the affidavit of defense are that he was the first to treat the case as to the effect that the compressor was not of the one of law, and moved for judgment on the capacity agreed to be furnished, but only about pleadings. So far as appears, there was no furnish a competent man to supervise the inone-half thereof; that the plaintiff failed to suggestion in the court below of any disput-stallation of the machinery, etc., that the same ed question of fact, nor in reality is there or at least some of it was defective and not in here. good working order and condition, was useless, The assignments of error are overruled, had to be repaired, and some parts had to be reand the judgment is affirmed. (265 Pa. 264) FRICK & LINDSAY CO. v. KENT et al. (Supreme Court of Pennsylvania. June 21, 1919.) SALES 354(13)-IN ACTION FOR PRICE, AF- In action for balance due on machinery sold and delivered under written contract, including a high-stage compressor, the setting up of which was to be supervised by seller's employé, all to be in good working order, an affidavit of defense, claiming damages in wages paid laborers and superintendent, repair on compressor, freight on shipment of it to shop and back, articles purchased to replace unsatisfactory material, loss by failure of compressor to operate, without any statement of items or showing how the lump sums were made up, was placed with new, and that defendant was thereby damaged to an amount far in excess of plaintiff's claim, which damages he seeks to set off, and asks for judgment for a certified balance. Defendant states the various items of damage alleged to have been sustained, as follows: 1. Wages paid laborers and superintendent September 1, 1916, to January 1, 1917.... $1,500 00 4. Articles purchased in place of materials 5. Loss by failure of compressor to operate .... 100 00 352 10 2,400 00 $4,853 71 As to the first item, the affidavit does not aver how many laborers, who they were, the time each was employed, the price paid each per day or month, the time superintendent was employed, the price paid him, or that the wages paid laborers and superintendent was reasonable or the usual and ordinary charge for such labor. As to the second item, the affidavit fails to state that the defendant actually paid or obliAppeal from Court of Common Pleas, Mc-gated himself to pay the amount of $501.61 for Kean County. repairs, or if this could be inferred from the insufficient. |