husband of Anna T. Chambers, my executor to ed to a devise over, and had testator intended this my last will and testament, made this day, that his wife should take a fee in the property 10-1-1896, he to have full power to make sale and in question he would have excluded it from the collect all dues, not losing sight of collateral tax executor's power of sale. and his commissions, to which I append my The aforesaid will was duly proven November 18, 1896. "Letters of administration, with the will annexed, on the estate of John P. Wilkinson, were duly granted to Edgar A. Wilkinson, November 24, 1896. "It is contended on the part of the plaintiff that the will of John P. Wilkinson gives to Hannah A. Wilkinson only a life estate in the half interest of the real estate mentioned in item 2 of his will. "It is contended on the part of the defendant that the will of John P. Wilkinson gives to Hannah A. Wilkinson an absolute estate in fee simple in the half interest of the real estate mentioned in item 2 of his will. That testator did not intend his wife to take a fee is shown by the fact that when he gave a specific devise of real estate later in his will he used entirely different language. Schaeffer v. Messersmith, 10 Co. Ct. 368. The construction contended for is consonant with the rest of the will where he left residue to his wife for life only. time for which the widow was to enjoy it, it was The language used in the devise indicates the for a home. Oyster v. Knull. 137 Pa. 453. Terry v. Wiggins, 47 N. Y. 512. Some meaning must be given to these words, "for a home," and if we should construe the Sorver v. Berndt, 10 Pa. 214. 3 Jarman on Wills, 707 (5th Am. Ed.) "If the Court be of the opinion that the will of clause as a devise in fee they are entirely superJohn P. Wilkinson gives to Hannah A. Wilkin-fluous. son only a life estate in the half interest of testator in the real estate mentioned in Item 2 of his will, then judgment to be entered for the plaintiff; but if the Court be of opinion that the will of John P. Wilkinson gives to Hannah A. Wilkinson an absolute estate in fee simple in the half interest of the testator in the real estate mentioned in Item 2 of his will, then judgment to be entered for the defendant. "Costs to follow judgment; either party reserving the right to sue out a writ of error or appeal therein." 2 Williams on Executors, 333 (7th Am. Ed.) The Court, WADDELL, P. J., was of opinion that the words "for a home" did not limit the estate of the devisee under the will to a life estate, In order to reduce a devise of real estate to and accordingly directed judgment to be entered less than a fee, testator must disclose such infor the defendant in the case stated, which was tention in the will. duly entered, and plaintiff thereupon took this appeal, assigning for error this action of the Court. Crosky v. Dodds, 87 Pa. 361. William M. Hayes, (J. Carroll Hayes with him), the question raised by the case stated depends May 27, 1897. MCCOLLUM, J. The decision of for appellant, The words "for a home" clearly showed that upon the interpretation or construction of the testator intended to give but a life estate. will of John P. Wilkinson, deceased. The question is whether under and by virtue of the will Oyster v. Knull, 137 Pa. 453. his wife, Hannah A. Wilkinson, became at his The direction in the succeeding clause of the death the owner in fee of the real estate in diswill that the executors should sell "any property in pute. The plaintiff claims that the devise to her which I am in whole or part possessor," amount- was of a life estate only, while the defendant as W. M. S., Jr. devisee of all her estate claims that it was of the ceding case, and rests upon substantially the same fee. The devise in question is contained in item grounds. Upon due consideration of the lan2 of the will and the operative words of it are, guage of the devise and of all the provisions of "I give to my wife Hannah A. Wilkinson for the will we concur in the conclusion of the a home my one-half undivided interest in the learned Court below "that Hannah A. Wilkinson real estate on which I now reside." The descrip-took an estate in fee simple in the real estate detion of the real estate which follows the operativ scribed in the second item of the will of John words need not be inserted here. The claim of P. Wilkinson, deceased." It follows from this the plaintiff is based on the presence in the de- conclusion that judgment was properly entered vise of the words "for a home." Without these for the defendant. Judgment affirmed. words there would be no room for a contention respecting the nature of the estate devised. Do these words in the devise have the effect claimed for them? There is no provision in the will which strengthens the claim founded upon them. The authority given to the executor in item 3 cannot be construed as extending to and including lands specifically devised in items 2 and 5. A construction of it which would enable the executor to defeat specific devises of real estate cannot be sanctioned. The reasonable and proper with which he is working, which defect he knew or ought A workman who is injured by a defect in machinery construction of it is that which limits it to prop-to have known, cannot recover damages for the injury ery not specifically disposed of by the will. This received. construction obviously accords with the intention of the testator in conferring the power to sell or lease. The claim that the wife took an estate in fee by the devise in item 2 has some support in the fact that there was no devise over. This is not necessarily a controlling fact, but it is entitled to consideration in ascertaining the testator's intention in disposing of the land in suit. That he knew how to create a life use of or in his property when he desired to do so clearly appears in item 7 of his will. Superior Court. April 13, 1897. April '97, 87. Superior Court. A. was a skilled workman, employed by the C. company, to work upon wire rolls, the "pan" of the rolls was in a dangerous condition, apparent to other workmen, one of whom spoke of it to a fellow employee. A. testified that he could see as well as anybody else and had good eyesight; he was injured through the bad condition of the pan: Hld, that such a state of facts did not justify the Court in charging the jury in an action against the C. company, that if the danger "was not such as would be apparent to the plaintiff, and not comprehending or not being bound to anticipate this danger he worked on, when the defendant should have known that the danger was increasing, then the plaintiff may recover," and the jury should have been given binding instructions for the defendant. Appeal of the Carnegie Steel Company, Limited, defendant, from the judgment of the Common Pleas No. 1, of Allegheny County, in an action of trespass in which Charles Gropp was plaintiff. The words "for a home" as used in the devise were not sufficient to restrict it to a life estate. They do not qualify in any degree the absoluta gift to the wife of all the testator's interest in the land described in item 2. This view of the case is not opposed to the decision in Oyster v. Oyster, 100 Pa. 538. In that case the testator de- This was an action to recover damages for an vised land to his son "for his support," and then injury suffered through the alleged negligence over to his children who were to take as pur-of the defendant. chasers. The only question was whether the On the trial, before STOWE, P. J., the evidence word "children" in the third clause of the will showed the following case: The defendant mainwas a word of limitation or of purchase. It was tained and operated a rod and wire mill at Beavheld to be a word of purchase, and as a sequence er Falls. The operation of wire rolling is as folthat the son took but a life estate in the land. The lows: The wire is rolled from the billet through third clause of the will. standing alone, evidenced seven or eight sets of rolls, of which the last four an intention to give a life estate to the son. It sets are called, the first oval, the second oval, the was construed as a whole and the strongest if diamond and the finisher. Each of these sets not the only indication of the intention was the consists of two frames of rolls standing side by limitation over which was included in it. Oyster side. The rods pass into one side of each roll, v. Knull, 137 Pa. 448, involved the construction through it and into the next, until it of a similar clause of the same will and the de- through the finisher, as finished wire. At the cision in it accords with the decision in the pre- back of the rolls the rod or wire is carried from comes He was hurt while putting the end of the wire into the rolls. A "last end" of a wire caught on one roll to the other automatically by an appli- Charles Gropp, the plaintiff, was an experiance which is called a "repeater." It is the duty enced man, having worked for nine years at this of an employee called a "bender" to stand in front sort of work in Germany and in America. He of the rolls and as the wire comes through one had worked for two years at this mill at the secroll, he seizes it with his tongs and turning ond oval rolls, which stand next to the diamond. around puts it in the next roll. As the rod or He had worked a number of times at the diawire is becoming smaller as it passes through mond. The day he was hurt he was working at the rolls, and as the rolls are revolving at the the diamond, having taken the place of another same speed, it is seen that the wire will be de- man. He had been working there for four days livered from one roll faster than it is taken up before the accident. He could see the pan from by the next. Thus, for instance, while the same his position at the oval, where he had been for length of wire will pass through one of the rolls two years, and, of course, from his position at of the diamond as through the other in the same the diamond. time, it is in thinner wire and the same quantity of material does not pass through in the same time. A loop of wire is formed between the two rolls. a corner of the pan and, flying around, burned To allow these loops to form a space is made in his arm. He was painfully but not seriously infront of the rolls called the "slope," which is large jured. enough for the loops to extend so far as neces- The defendant submitted, inter alia, the folsary. The bottom of the "slope" is formed of lowing point: cast-iron plates and around the sides of the slope "4. That if the jury find that the pan was so other plates stand on edge, bolted together, form- turned up at the edges and also find that the ing what is called the channel. The "bender" plaintiff knew, or ought to have known, that it stands within the loops and as the loops are mov- was, then there can be no recovery by the plaining away from him, no harm can come to him tiff." Which was answered as follows: "This is from them ordinarily. The "bender" has a help-affirmed unless the evidence leads you to beer called a "hooker," whose duty it is to see that lieve that the danger was not so obvious or appathe wire does not get tangled, to straighten out rent as, to indicate to plaintiff that accident was the loops and keep them running smoothly. The likely to arise from the fact that the edges were "hooker's" position is everywhere around the turned up." (First assignment of error.) channels outside the slope. The "bender" must be an expert workman. The rods pass through the rolls with great frequency and rapidity. If he misses an end as it comes through, the wires will get tangled, as three or four are running at once. If he does miss he must chop off the wire with a hatchet, thus make a new end and put that in the rolls. One thing he must guard against particularly is that, as he turns to put the end in the rolls, the "last end" of another wire is not coming, for if it flaps or flies he may get caught and burned. If a "last end" is coming, he must wait and let it pass through out of the way and let the loop form as he holds the wire with his tongs. These "benders" receive high wages for their services. The rolls stand up from the floor and at the diamond rolls a "pan" was used. This is a plate of steel with angle iron bolted to its sides to keep it in shape. It is placed like an inclined plane, so that the wires may run up to the rolls. It was about three feet wide and five feet long. And also "8. That under all the testimony the verdict must be for the defendant." Which was refused. (Third assignment of error.) Verdict for plaintiff $400 and judgment thereon. The defendant took this appeal and filed assignments of error, inter alia, as above indicated. C. Edwin W. Smith, (with him G. D. Packer, P. Zurn v. Tetlow, 134 Id. 213. Bellows v. Pa. & N. Y Canal & R. R. Co., 157 Id. A. Israel, (Cohen with him), for appellee, cited- Kehler v. Schwenk, 151 Id. 518. Bennett v. Standard Glass Co., 158 Id. 124. May 10, 1897. BEAVER, J. The error of which the appellant complains lies within a very narrow compass. The general instructions of the trial Judge in the Court below and his answers to the numerous points presented by the defendant were in the main correct. The general principles of law governing the relation of master and serThis pan had become warped and turned up at vant in the use of machinery were carefully laid the corners. This warping was caused, it is as- down and the relative duties of each fully exserted, by pouring water on the pan to clean off plained. As to the point complained of the trial Judge says: "This is drawing a very fine line, the scale when the pan was hot. but the whole thing turns right there, and, when times and continuously, according to his turn, for you come to that point, you have got to con- four days immediately prior to the accident. He sider that question. Here is the plaintiff-a admits in his own testimony that "he could see skilled workman. He sees the condition of things as well as Mr. Rigley (the superintendent), or or is bound to see, just as the defendant's super- anybody else, and that his eyesight was as sharp intendent is bound to see it, and it is for you to as anybody's else." Leaving out of view all the determine whether the evidence satisfies you, testimony of the defendant and considering this each of these men seeing, that the danger was not question solely from the testimony offered by manifest to the plaintiff and yet was manifest and the plaintiff, what evidence is there for submisapparent to the defendant. If it was not mani- sion to the jury from which they could find or fest to either, neither of them has been guilty infer that the defect complained of was apparent of negligence and the plaintiff cannot recover. to the defendant, yet under the circumstances If it was manifest to both, both have been guilty was not such as would be apparent to the plainof negligence and the plaintiff cannot recover, tiff, and how was it possible in the absence of but if it was apparent to the defendant and if, any evidence upon that subject for the jury to under the circumstances, it was not such as would find that the plaintiff could continue his work be apparent to the plaintiff and not comprehend-"not comprehending or not being bound to anticing or not being bound to anticipate this danger, ipate this danger, when the defendant should have he worked on when the defendant should have known that the danger was increasing"? There known that the danger was increasing, then the are no facts anywhere in the evidence upon which plaintiff may recover, because in that case the to base such a finding. There is no opinion of defendant would be guilty of negligence and the any witness, least of all of any expert, from which plaintiff would not." The testimony in regard such a conclusion could be drawn. to the condition of the pan, as it was called,| Upon a careful examination of the whole case, or rather the trough through which the wire ran we are of the opinion that the defendant's fourth to and from the rolls is very weak and doubtful. point should have been affirmed without qualifiIt is enough to go to the jury, because they are cation, and that his eighth point, "that under all the judges of the credibility of a witness, and the testimony, the verdict must be for the defenthere is little else in it. The only testimony upon dant," should also have been affirmed, and this the subject was that of Edward Gibbons, a helper upon the plaintiff's case as presented in the tesof the plaintiff, whose regular position was much timony adduced by him. The testimony of the more distant from the rolls than that of the plain- defendant strengthens the moral aspect of its case tiff, who was the skilled workman. He testified but not in any way its legal status. that the pan was warped on the end of it-turned ment is reversed. No. 4. The judg Common Pleas. Common Pleas. H. B. March '97, 453. Potts v. Benzenhafer et al. and justices of the peace. The practice on appeals from magistrates in the ComCourt, that is, under the Act of 1887. mon Pleas is the same as in cases commenced in that Heroy Co. v. Smith, 5 Dist. Rep. 293, overruled. George G. Cookman, for plaintiff. up. The plaintiff, who had worked at these rolls, of Common Pleas ever since the date of that Act, importance. Parties may agree to an amicable calling forth opinions on both sides of the ques- action without writ, and proceed to obtain judgtion, and yet it is a vexed question. There ment under the Act of 1887. There is no writ ought, however, to be no doubt on the subject in in suits in equity, neither is there a fixed return this county, as the rule of Court, section 127, e, day; but there is, instead, a variable return day adopted in 1887, shortly after the passage of the for every such suit, that is, fifteen days after the Procedure Act, expressly provides that "in all service of a copy of the bill. I indulge the hope cases of appeal from judgments of magistrates, that we may soon have the variable return day for the pleadings and procedure shall be the same as writs in actions on the law side of the Court, in like cases commenced in Court." As no re- throughout the State, such as they have in Chesference to this rule of Court was made by the learned Judge who wrote the opinion in the case of the Heroy Company v. Smith, 5 Dist. Reports, be commenced at law as well as in equity, by 293, it may be presumed that it was not called to his attention. ter county, under the local Act of April 5, 1862. I indulge also, the further hope that actions may filing a statement and serving a copy of it with a rule to file an affidavit of defence or plea, ac But independent of the rule of Court, it is cording to law. settled by authority that all the old statutes The importance of the question in the present and rules of Court for obtaining judgment for case is this: Under the Act of 1846, the plaintiff want of an affidavit of defence, in actions of as-was required to file a copy of his note, sumpsit and trespass, are no longer in force. The book demand or other cause of action, within Supreme Court has settled this question by de- two weeks after the return day of the writ, in orciding that the provisions of the prior Acts and der to obtain judgment for want of an affidavit the Act of 1887, cannot stand together without of defence on the third Saturday after the return establishing two methods of practice and making day; whereas, under the Act of 1887, the statea mongrel of it, and that all prior Acts are neces- ment may be filed any time before or after the resarily, although not expressly, repealed: Gould turn day, and judgment obtained for want of an v. Gage, 118 Pa. 559; Marlin v. Waters, 127 Pa. affidavit of defence fifteen days after service of a 177; Newbold v. Pennock, 154 Pa. 591. In Mar- copy of the statement, provided the return day lin v. Waters, Mr. Justice MITCHELL said that has intervened. In the present case, the "a statute which was intended to promote uni- appeal was filed March 31, 1897. The next formity, ought not to be so construed as to create return day was The Monday, April 5th. or preserve diversities." In Craig v. Brown, 48 plaintiff filed and served a statement of his dePa. 202, it was decided that "The rules of plead- mand on May 24th, and the defendants filed an ing apply as well to appeals as to actions brought affidavit stating that they are advised that they in Court by original process." are not required to file an affidavit of defence on It has been said that there is no writ or return the merits, because, as they allege, the Act of day in an appeal from the judgment of a magis- 1887 does not apply to appeals from the judgments trate or justice of the peace. But this is a mis- of magistrates. If the Act of 1846 is in force and take. There is a return day in Court. When an regulates the plaintiff's right to judgment for appeal has been taken, the transcript of the re- want of an affidavit of defence, his statement was cord must be filed in the office of the prothono- filed too late, and he must undergo the delay of tary of the Court of Common Pleas, on or before a jury trial, although there may be no legal dethe first day of the next term after the appeal: fence to his claim. I have no hesitation in decidAct of March 20, 1810, sec. 4, or, in Philadelphia ing that the Act of 1846, for the Common Pleas county, on or before the next monthly return day of Philadelphia county, as well as the Act of after the judgment: Act of May 1, 1861. It is March 28, 1835, for the former District Court, also provided by section 4 of the Act of 1810, has been superseded, and therefore repealed by that in case of an appeal, the prothonotary "shall the Act of 1887, as to actions of assumpsit and enter the same on his docket, and the suit shall trespass, and that the practice on appeals from from thence take grade with and be subject to magistrates in the Common Pleas, is the same the same rules as other actions where the parties as in cases commenced in that Court, that is, are considered to be in Court." Were it not for under the Act of 1887. the return day provided by the Acts of 1810 and 1861, a plaintiff could not have obtained judgment for want of an affidavit of defence under the Act of April 14, 1846. As the defendants desire leave to file an affidavit of defence, if one is required, it is now ordered that if the defendants will file an affidavit of defence within one week, this rule will be disThe want of a writ to appear in Court, is of no charged; otherwise, it will become absolute. |