Thorndike v. Buena Vista Springs Hotel Company. the sides of it any or all obstructions which by ordinary means they could determine might likely fall on those traveling there. They were not bound to make a microscopic examination of each tree to ascertain its condition. As was said by the Supreme Court in Sheets v. Sunbury & Northumberland Electric Ry. Co., 237 Pa. 153: "The decayed condition was obvious after it had fallen, but there is not a scintilla of testimony tending to show that such condition was observable while it was attached to the tree"-we are speaking of a limb "nor is there any evidence from which such inference could have been drawn. The question of the defendant's negligence in that regard is to be determined, not by what was discovered in the limb after the fall, but by what it did or omitted to do before the accident, and the uncontradicted testimony of several witnesses establishes the fact that, upon an examination made by them from the ground the day before the accident, there was no observable appearance of unsoundness in the limb; that it, in fact, then had a sound and healthy appearance." In that case the plaintiff, while attending a show or picnic at Island Park, was standing under a tree when a limb fell and struck him and seriously injured him. The question was one simply of negligence. It was testified that the limb was found after the accident to be spongy and decayed. The court entered judgment for the defendant notwithstanding a verdict for the plaintiff, and on the opinion of the court below, judgment was affirmed. It seems to us that, so far as authorities in Pennsylvania are concerned, the case above cited must rule this case. We recognize the fact that in other jurisdictions there have been cases which would seem to be otherwise; but we are governed by Pennsylvania law as expressed by our court of last resort, and we are not to follow cases in other jurisdictions differing from those as held by our courts. It is contended by the defendant that this case is ruled by Norristown v. Moyer, 67 Pa. 355. In that case, as well as some other cases in the books, it is shown that the pole which fell was standing on the public highway and was, therefore, a nuisance. It was not put there by nature. It was allowed to stand in a street over which the Borough of Norristown had charge and for which they were responsible for a great many years until it fell because of its decay. That, it seems to us, is quite different from a tree which nature provided and which showed no signs of decay. In the case of Mardo v. Valley Smokeless Coal Co., 279 Pa. 209, where a boy was killed by a tree falling on him, it is said by Justice Kephart, speaking for the court: "There is no evidence to charge the defendant with knowledge of the tree's condition; no reports were made or other steps taken to warn the defendant. . . . An ordinary observation would not reveal anything unusual. There was nothing to put the defendant on inquiry or cause a more diligent inspection." In that case a verdict was rendered for the plaintiff and judgment entered for the defendant notwithstanding the verdict. Many other cases in our own State might be cited to sustain the action of the court in entering this non-suit. It was a very unfortunate accident. The plaintiff suffered much loss and misery. We cannot, on this evidence, see how he can be compensated by this defendant, or that the defendant is responsible for his injuries. The matter was very ably presented by the learned young counsel for the plaintiff. We know very well how prone juries are in cases like this to give verdicts for the plaintiff. We deem it to be the duty of the courts in such cases as this to adhere strictly to the principles of law as found in our books. Believing we have done this, the motion to remove the non-suit is denied. From King Alexander, Chambersburg, Pa. Jagode's Estate. Trusts and trustees-Commissions on principal. A commission of 5 per cent. on a principal of $50,000 was allowed a trustee, in addition to the usual commissions on income, where he had not acted as executor, had served for twenty-five years and had performed his duties with fidelity and ordinary ability. Exceptions to adjudication. O. C. Phila. Co., July T., 1901, No. 181. The facts appear from the following extract from the adjudication of GEST, Auditing Judge: "Mr. Wilkinson, representing the estate of Pauline C. Jagode, objected to the trustee's commissions, stated as 5 per cent. on the principal. "The present accountant was not executor, and has served as trustee for nearly twenty-six years, the numerous investments and reinvestments being shown in the account. There does not seem to be any fixed rule regarding the question of trustee's commissions. The court will determine the amount in view of all the circumstances of the case. In this estate the trustee appears to have acted with fidelity, and no complaint was made. A loss of $1300, it is true, has been sustained in connection with the foreclosure of a mortgage, but it was not claimed that the investment was improper, and such losses may be incurred by the most careful and prudent trustee. I am of opinion that the commission charged in this case, amounting to barely $100 per annum, on the principal, should be allowed." John J. Wilkinson, for exceptions. VAN DUSEN, J., Jan. 22, 1926.-The trustee (who was not executor) was allowed commissions at 5 per cent. on $50,000 of principal for services in administering a trust for twenty-five years, in addition to commissions on income. This is a matter on which the conclusion of the Auditing Judge is decisive in the absence of clear error. Far from perceiving such error, the allowance seems to us eminently proper. The exceptions are dismissed. Costello's Nomination. Election law-Nomination petitions-Signature by agent-Act of July 12, 1913. Under the Act of July 12, 1913, P. L. 719, an elector is not required to sign a nomination petition personally, but may direct and authorize another to sign for him in his presence, and his signature so made is a lawful and valid signature of the elector. Application to set aside petition purporting to nominate Raymond Costello as candidate for member of Ward Committee on the Republican Official Ballot for the 38th Division, 39th Ward. C. P. No. 2, Phila. Co., March T., 1926, No. 13111. Harry Felix, for petitioner; Hugh McAnany, contra. GORDON, JR., J., April 29, 1926.-Raymond Costello has filed his nomination paper for the office of member of the Ward Executive Committee of the Republican Party for the 38th Division of the 39th Ward of the City of Philadelphia. The paper contains twelve names, and the law requires ten Costello's Nomination. signatures to place a candidate's name in nomination. The petition before us prays that the said nomination paper of Raymond Costello be set aside upon the ground that, of the twelve signatures which it contains, four are forgeries, not having been signed by the electors themselves. The evidence discloses that Daniel A. Fitzgerald, one of the signers of the petition, is not a qualified elector of the Republican Party, and his name should, therefore, be stricken off. The evidence further discloses that the name of Abe Forman was signed by his wife, Ida, at his request and direction, notwithstanding he was present and could have signed himself had he so desired; and that, similarly, the names of William Fineman, Cecelia Fineman and Sophie Fineman were all signed by Abe Fineman, the son of William and Sophie Fineman and the brother of Cecelia, at their direction and in their presence. It also appears that all of the four names were signed by the respective agents in good faith and without any fraudulent designs or criminal purposes. If these signatures are forgeries, the paper has been signed by only eight electors and the petition should be granted; otherwise it should be dismissed. These facts raise the question, whether an elector, who desires to sign a nomination paper, may lawfully direct another to affix his name to it for him in his presence; or, to put it in another form, whether an authorized agent may lawfully sign a nomination paper for an elector. The Act of July 12, 1913, P. L. 719, which requires the filing of nomination papers in party primaries, contains no express restriction upon the manner in which such papers must be signed. It prescribes the qualifications which must be possessed by signers, the information respecting each signer which must be given, and the facts which must be sworn to by the affiant to the paper. Thus section 6 a provides that: "Each signer of a nomination petition shall sign but one such petition for each office to be filled. . . . He shall also declare therein that he is a qualified elector of the county therein named; and in case the nomination is not to be made or candidates are not to be elected by the electors of the state at large, of the political district or division therein named, in which the nomination is to be made or the election is to be held. He shall add his occupation and residence, giving city, borough or township, with street and number, if any, and shall also add the date of signing. No nomination petition shall be circulated prior to sixty [now forty] days before the last day on which such petition may be filed, and no signature shall be counted unless it bears date within sixty [now forty] days of the last day for filing the same. "Said nomination petition may be on one or more sheets, and different sheets must be used for signers resident in different counties. Each sheet shall have appended thereto the affidavit of some person-not necessarily a signer and not necessarily the same person on each sheet-setting forth that the affiant is a qualified elector of the state, or of the political district or division, as the case may be, referred to in said petition; his residence, giving city, borough or township, with street and number, if any; that the signers signed with full knowledge of the contents of the petition; that their respective residences are correctly stated therein; that they all reside in the county named in the affidavit, and that each signed on the date set opposite his name; and that to the best of affiant's knowledge and belief the signers are qualified electors and members of the designated party of the state, or of the political district or division, as the case may be." Section 8 of the act provides: "No nomination petition shall be refused or set aside except for .. (c) want of a sufficient number of genuine signa Costello's Nomination. tures of persons qualified, with respect to age, sex, residence and citizenship, to be electors." Nowhere in these provisions do we find a direct requirement that an elector must personally affix his signature, or a prohibition upon his exercising his right to sign in any of the usual ways in which documents may be signed, and to so hold would be reading into the act limitations which the legislature has not seen fit to put there. It has been suggested that these provisions of the act, when read together as a whole, disclose a legislative intent, or at least assumption, that the elector is to sign the paper himself, and that the opportunity for imposition and fraudulent practices, which would be opened by holding otherwise, requires such a limitation upon the manner of signing to be read into the act. We cannot accede to this reasoning, however superficially forceful it may appear. It overlooks several important and controlling considerations. While, of course, with legislation of this kind, the method of procedure laid down must be strictly followed, it may be said to be a cardinal principle of interpretation that judicial construction should be directed to according the widest possible opportunity to the citizen for the untrammeled exercise of his political rights. Where the legislature has clearly spoken, its will must be followed. But where it is silent, or its meaning susceptible of different interpretations, that should be adopted which leaves the citizen freest to act. The argument that the general scheme of this legislation implies a legislative intent that the elector must personally sign the nomination paper finds little support, when we consider that no provision is made for the exercise of the right of nomination by those who, through disability, cannot act except through an agent, while in analogous legislation, such as the regulation of the right to vote, special provision is made for the exercise of the right by such persons through an agent. Again, the very danger that is suggested as a possible result from permitting the elector to sign by an agent is in itself a reason for concluding that the legislature would have been careful to expressly prohibit such a practice had it deemed the danger real, or this method of preventing it preferable to the risk incident to refraining from restricting the elector. Indeed, in interpreting a statute designed to prevent fraud in other connections, the statute of frauds in sales of realty, equity has held that, although under it an agent must be authorized in writing to sign for his principal, the statute has no application to the signing of a contract involving the sale of realty by an agent in the principal's name, in his presence and at his express direction. (Fitzpatrick v. Engard, 175 Pa. 393.) The reasoning by which this decision is reached is forcefully stated in Story on Agency, § 57, thus: "If the principal is present and verbally or impliedly authorizes the agent to affix his name to a deed, it becomes the deed of the principal and is as much binding on him as if he had personally sealed and executed it. The distinction may seem nice and refined; but it proceeds upon the ground that when the principal is present, the act of signing and sealing is to be deemed his personal act, as much as if he held the pen and another person guided his hand and pressed it on the seal." "What is done in the presence and by the expressed or implied direction of the principal is in law his act, and an agent may, therefore, be authorized by parol to bind his principal, even upon sealed instruments, if the instrument be executed in the presence of the principal and by his direction or tacit consent:" Mechem on Agency, § 96. Such was the situation in the present case. In each instance, the elector's name was signed by his properly authorized agent immediately on receipt of Costello's Nomination. the authority, in good faith and in his presence. This was the equivalent of the personal act of the elector, and to strike it down would defeat his honest effort to exercise one of the high privileges of citizenship, through apprehension, apparently unfelt by the law-making body, that some might be tempted to forgery and fraud, and, by a judicially raised technicality, would prevent a body of citizens from effectively supporting a candidate of their own choosing. We see no compelling reason for doing so, either in the act itself or in the arguments advanced for adopting such an interpretation of it. The only case in Pennsylvania which has been called to our attention as dealing with this question is Lavery's Nomination Papers, 71 Pitts. L. J. 914, in which it is held that an elector must personally sign the paper. This case was decided under the Act of July 9, 1919, P. L. 855, which is an amendment to the Acts of 1893 and 1897. These acts do not relate to party primaries, and the case might be distinguished upon that ground. However, the decision merely states the law without any discussion of the reasons which led the learned judge who decided it to the conclusion which he reaches, and is of little value in a discussion of the subject. So far, therefore, as it may be viewed as a precedent, we are not inclined to follow it for the reasons already given. We, therefore, conclude that an elector in signing a nomination paper is not required to do so personally, but may direct and authorize another to sign for him, in his presence, and that a signature so made is the lawful and valid signature of the elector. The petition is accordingly dismissed. Black's Estate. Wills-Construction-Lapse of legacy-Heirs and assigns as words of substitution. 1. Intestacy is repugnant to the idea of the intention of one leaving a will, and every ingenuity and rule of construction ought to be marshaled to defeat such a happening. 2. A testator's intention must be gathered from the language of the will, and its inexorable legal effect may not be disregarded, but in applying the rules of law, the nature of the estate and the perspective of the testator will have greater weight than the construction of words, 3. A testatrix by her will divided the residue of her estate into four parts, three of which she gave to children and grandchildren of her deceased husband's brothers and sisters and the fourth to her husband's sister, and in case of her death before the testatrix, "her share shall be payable to her son R., his heirs and assigns forever." She used the words heirs and assigns only as to the four residuary bequests and not as to the other bequests. Both the sister and her son died before the testatrix, but she made no change in the bequest: Held, that this legacy did not lapse, but should be awarded to the daughter of the sister's son, as the will showed with sufficient clearness an intention to substitute her as a legatee. Exceptions to adjudication. O. C. Lancaster Co., April T., 1924, No. 98. SMITH, P. J., June 4, 1925.-The testatrix bequeathed one-fourth of the residue of her estate "to the grandchildren of my (her) late husband's brother, William Black, their heirs and assigns forever, share and share alike." An exception to the per stirpes award to the grandchildren is sustained. Το each grandchild was due and is now awarded an equal amount. In transcribing this, mistake was made. |