Yoder et al. v. Trainer. the benefit and common use of the owners and occupiers of the row of houses. Subsequent deeds refer to this alley as appurtenant to the lots. No evidence was offered of any agreement with respect to a party-wall, nor describing the intention of the parties who built the wall. There was an offer on the part of the plaintiffs to place in evidence a book found among the effects of a deceased employee of the Bureau of Surveys of Philadelphia, in which were notations claimed to indicate that some stakes had been placed upon the ground to set the boundary-line between the properties of plaintiffs and that of the predecessor in title of the defendant. A witness identified the handwriting of the deceased, and stated that it indicated that stakes were driven on the boundaryline, but in his testimony he was uncertain as to all the stakes excepting one on Germantown Avenue. The memorandum book was prepared from a plan or survey on file in the Bureau of Surveys in Philadelphia, and there was nothing to indicate that the stakes were actually driven. This evidence was properly rejected, as the best evidence was the plan itself and not a mere memorandum made from the plan. The testimony, if admitted, would have been too uncertain for a basis of any finding of fact. The principal questions raised by the exceptions filed by the plaintiffs relate to the exclusion of this evidence, the findings of fact and conclusions of law determining that the wall is not a party-wall, and those respecting the title of defendant to the ground underneath the foundation-wall which was acquired by adverse user. While a presumption in favor of a party-wall may arise from building a wall across the land of one's neighbor, this is a rebuttable presumption, and the evidence in this case strongly rebutted any presumption or inference which might arise from the fact of building across the line. The foundation encroachment was irregular in width, and the wall erected upon this foundation likewise varied in the extent of encroachment. A party-wall must be solid. The window in the original wall indicated that the builder did not regard the wall as common to both properties. The other window erected in 1896 strengthens this conclusion. It was stated in the adjudication the original encroachment was an accident; that is, there was not intentional intrusion upon the land of the neighbor; and, where it was suggested that the wall was erected by mistake, such a mistake was meant as would justify the reformation of a deed or written instrument, a mutual mistake of both parties, a mistake of the predecessor in title of the defendant in locating the line of his property where he honestly believed it should be. Although the original location of the line and erection of the wall upon this line may have been due to a mistaken impression on his part, it is clear that it has since been held adversely under a claim of right. It is not a reasonable supposition that a man would erect and maintain a wall of this character without the assertion of a claim of ownership in it and the land upon which it was erected. If the wall is not a party-wall, as found by the court, an open, notorious, continuing and adverse possession under a claim of right for a period of over twenty-one years would ripen into a title, and the party acquiring title by prescription could erect on his land so acquired a wall or building not prohibited by law. This wall becomes the new line of the property, and as it is on the land of the defendant, he can place openings in it. The alleyway adjoining the wall, placed there by the predecessor in title of the plaintiffs and existing since 1896, is persuasive of the fact that the wall was not at that time considered to be a party-wall. In Mercantile Library Co. v. University of Pennsylvania, 220 Pa. 328, there was an alley along the northern side of the Chestnut Street Opera House, with some encroachment Yoder et al. v. Trainer. upon the title of the owners of the adjoining properties along the alleyway. A wall was held in that case not to be a party-wall. In Benner v. Cassatt, 236 Pa. 248, a strip of land along a wall was subject to the easement of an alley laid out for the use of adjoining owners. There had been an encroachment on the land underneath this alleyway, which encroachment was removed. It was decided that the wall was not a party-wall. In Hayes v. Arcade Real Estate Co., 257 Pa. 566, there was an encroachment under plaintiff's property for the purpose of furnishing a foundation with proper support, and also a further encroachment by the extension of the defendant's wall. It was held that the wall on the defendant's land was not a party-wall, and the defendant was permitted to maintain openings and windows in the wall. In that case reference was made to the fact that no complaint was made by plaintiff of the technical trespass and encroachment until fourteen years after the completion of defendant's building. The conclusions in the instant case were based upon adverse possession and title by prescription of the defendant, Trainer, but the bill might have been dismissed upon the ground of laches. In the respondent's answer it is set up that the wall was erected and maintained for a period of almost forty years without any objection from the plaintiffs or their predecessors in title, which fact should preclude plaintiffs from objecting to the wall. Final decree. ... And now, to wit, April 27, 1926, upon consideration of the foregoing case, it is ordered, adjudged and decreed as follows: 1. The respondent, Walter L. Trainer, is hereby directed and enjoined to remove the window-sills that project beyond the line of the northern wall of his property within thirty days from the filing of this decree. 2. The respondent, Walter L. Trainer, is perpetually restrained from opening windows, by revolving frames or otherwise, to extend over ground belonging to plaintiffs. 3. The bill is dismissed as to the defendant, Walter L. Trainer Company, and Jacob G. Loux. 4. The respondent, Walter L. Trainer, is directed to pay the costs. Shryock's Estate. Wills-Executors and administrators — Commissions income in lieu of commissions. 1. Where testatrix appoints her son executor and trustee of her will, and in the paragraph of her will dealing with the creation and termination of the trust provides that "in lieu of commissions . . one-third of the net income of my estate shall be paid to my said son," the son is not entitled to commissions on the principal. ... 2. In such case, the court will refuse to add to the phrase "in lieu of commissions" the words "on income," so that he may claim commissions on principal. 3. Where testatrix appoints her son as executor and trustee of her estate and directs that he shall "maintain an office as heretofore, and that he shall deduct the cost of maintaining the same from the income of my estate as a necessary expense of his personal care," and "in lieu of commissions. one-third of the net income of my estate shall be paid" him, the son is not entitled to receive from the income of the estate the sum of $300 per month, which his mother had paid to him in her lifetime for managing her business affairs. Exceptions to adjudication of Lamorelle, P. J. O. C. Phila. Co., Oct. T., 1925, No. 3454. VOL. 7-35 Shryock's Estate. By her will testatrix, Virginia S. Shryock, appointed her son, William A. Shryock, executor and also trustee. In the paragraph of the will creating the trust she directed as follows: "I direct that my said son William A. Shryock maintain an office as heretofore and that he shall deduct the cost of maintaining the same from the income of my estate as a necessary expense of his personal care. In lieu of commissions, I direct that one-third of the net income of my estate shall be paid to my said son William A. Shryock, and in the event of his death during the continuance of the trust, such one-third share shall be paid and divided to and among his children then living, and issue of children who may then be deceased such issue taking his, her or their parent's share.” After decedent's death, the accountant maintained and conducted an office at No. 225 South Sixth Street, Philadelphia, which had been maintained by the decedent and conducted by the accountant for the decedent in her lifetime; and at this office the accountant administered the trusts established by the will. During his mother's lifetime he received a salary from her of $300 per month. At the audit, counsel for two minor grandchildren of the decedent objected (1) to the credits taken by the accountant for a salary of $300 per month for conducting the office; and (2) to his commissions on principal. After argument, the Auditing Judge allowed the credits of $300 per month, taken by the accountant as a salary for conducting the decedent's office, but surcharged him with the credits taken by him for commissions on principal. Both the accountant and the guardian of the two minor grandchildren filed exceptions to the adjudication. H. Gordon McCouch, for Amy Bell Miles, guardian of the Johnstone minors. Fell & Spalding, for William A. Shryock, executor. HENDERSON, J., April 23, 1926.-Two sets of exceptions are before us: One by the executor because the Auditing Judge refused to allow him commissions on principal, and the other by the guardian of the children of a deceased daughter, objecting to an allowance to the executor and trustee of $300 per month. The facts are set out in the adjudication. Both questions arise under the following clause in the will: "I direct that my said son William A. Shryock maintain an office as heretofore and that he shall deduct the cost of maintaining the same from the income of my estate as a necessary expense of his personal care. In lieu of commissions, I direct that one-third of the net income of my estate shall be paid to my said son William A. Shryock. . . .” From this language it is clear that the executor and trustee was to have one-third of the net income "in lieu of commissions." His counsel argues that this provision being in a paragraph dealing with the trust should be interpreted as relating solely to commissions on income, and that he should be allowed commissions on the corpus as executor. We may not interpret that which is clear. The executor wants us to add to the phrase "in lieu of commissions" the words "on income," so that he may claim commissions on principal. This we decline to do in the absence of a compelling reason. The exceptions of the executor are dismissed. Exceptions were filed to the ruling of the Auditing Judge allowing the executor a monthly salary of $300, because the decedent in her lifetime paid the expenses of an office for the management of her estate, and allowed this executor that sum for managing the same, and, hence, this monthly payment should be continued because in her will she directed that "my said son Shryock's Estate. William A. Shryock maintain an office as heretofore and that he shall deduct the cost of maintaining the same from the income of my estate as a necessary expense of his personal care." There is no objection to paying the rent of the office and salary of a clerk. What does "maintain an office as heretofore" mean? The office would be necessary, likewise the clerk, but manifestly the agency and attorneyship of the son were at an end; in their place the testatrix substituted an executorship and trusteeship and for these offices she provided liberal compensation. No explanation is offered why the compensation for the agency should be continued when it was ended by death. The exceptions of the minor remaindermen are sustained, the adjudication is amended accordingly, and as amended is confirmed absolutely. LAMORELLE, P. J., did not sit. Pitts v. Lehmer. New trial-Evidence-Witnesses-Credibility-Cross-examination. 1. In the trial of a civil action, the plaintiff having testified in his own behalf, it is error, on cross-examination, to refuse to allow the plaintiff to be asked if he had ever been convicted of any crime. 2. In the trial of a civil action, it is error, on cross-examination, to refuse to allow a witness for the plaintiff to be asked if he had ever been convicted and sentenced to the penitentiary for receiving stolen goods. 3. The credibility of the parties and the witnesses is as much for the jury in a civil case as in a criminal case; there is no distinction in principle; the same rules of evidence should apply. 4. There is no distinction in principle as to the cross-examination of a party to an action who offers himself as a witness in his own behalf and any other witness, except that the defendant in a criminal proceeding is, to some extent, protected by the Act of March 15, 1911, P. L. 20. Motion for new trial. C. P. Dauphin Co., Jan. T., 1924, No. 167. HARGEST, P. J.—The trial in this case resulted in a verdict for the plaintiff, whereupon the defendant moved for a new trial, assigning a number of reasons. It is only necessary to consider the sixth, which is, that the court erred in declining to allow the defendant's counsel to ask the plaintiff while on the witness-stand, on cross-examination, whether he had ever been convicted of any crime; and the seventh, which is, that the court erred in refusing to allow defendant's counsel to ask a witness for the plaintiff, on crossexamination, whether he had ever been convicted and sentenced to the penitentiary for receiving stolen goods. The decisions, both in this state and elsewhere, have shown a lack of harmony, not only as to whether a party or a witness may be asked if he has been previously convicted of any crime or of a specific crime, but, also, whether such a question must be confined to conviction of heinous offences, and whether such conviction must be proven by the record. The hopeless confusion is succinctly set out in 28 Ruling Case Law, "Witnesses," § 212. The early Pennsylvania cases hold that a witness may not be asked on cross-examination whether he has been convicted of any crime or whether he has been convicted of a specific crime: Elliott v. Boyles, 31 Pa. 65; Hoffman v. Kemerer, 44 Pa. 452; Buck v. Com., 107 Pa. 486. Before the statute law of our state made all witnesses competent, those who were convicted of Pitts v. Lehmer. infamous crimes were not allowed to testify, and the evidence was admitted, generally the record, to show the conviction of such offences: Bickel's Exec'rs v. Fasig's Admin'r, 33 Pa. 463. But section 181 of the Act of March 31, 1860, P. L. 382, made a convict who endured his punishment competent as a witness, and the Act of April 15, 1869, P. L. 30, provided that no interest or policy of the law should exclude a party or person from being a witness in any civil proceeding. After the passage of this act it was held that the objection to witnesses on the ground of conviction went to the credibility of the witness rather than to his competency: Schuylkill County v. Copley, 67 Pa. 386. In the case of Elliott v. Boyles, 31 Pa. 65, it was held that a witness could not be asked on cross-examination whether on the trial of another cause he had committed wilful and corrupt perjury, because that would be an improper mode of attacking his credibility, and in Com. v. Bubnis, 197 Pa. 542, it was held proper to exclude the question as to whether a witness had been accused of a heinous offence. So, also, in the case of Com. v. Williams, 209 Pa. 529, it was held proper to exclude a question propounded on cross-examination as to whether or not the witness was conducting a house of ill-repute. It will be noted that in the last three cases there was no question of the conviction of a crime, but the questions were directed only to accusations or present misconduct. In Buck v. Com., 107 Pa. 486, it was definitely decided that “it is not the proper practice to ask a witness upon cross-examination whether he had been indicted and convicted of any offence, even for the purpose of affecting his credibility. The record is the only proper evidence." But Buck v. Com. was distinctly overruled in Com. v. Racco, 225 Pa. 113, 116. In the last cited case the defendant was asked on cross-examination whether he had not been convicted and sentenced to prison for larceny, assault and battery and wounding, and for obtaining money under false pretences. The questions were permitted. In that case the court said: "When he offered to testify in his own behalf his credibility as an intensely interested witness became at once a question for the jury. It was proper that they should learn whatever might aid them in determining what credit should be given to his testimony, and no one was so able to enlighten them as himself. Under our statute permitting him to testify, no restriction was placed upon the limit of his cross-examination. . . . If he had been formerly convicted of the offence stated, no one knew so better than himself, and it is not to be pretended that his affirmative answers would not have affected his credibility. If he had answered untruthfully in the negative, the way would have been opened to the Commonwealth to impeach his testimony by competent evidence of his convictions." In the case of Com. v. Payne, 242 Pa. 394, 401, it was held that a witness called by the defendant might be asked “whether he had been shortly before convicted of robbery and assault and battery with intent to rob." To the same effect is Com. v. Williams, 41 Pa. Superior Ct. 326, 341, which also draws the distinction between the conviction and the mere arrest upon a criminal charge, because the mere arrest would not affect the credibility; a distinction, however, which does not seem to be sustained in Com. v. Carelli, 281 Pa. 602. In the case of Com. v. John Doe, 79 Pa. Superior Ct. 162, it is held that even the Act of March 15, 1911, P. L. 20, which prohibits a defendant in a criminal trial from being asked whether he has been previously convicted of an offence, does not prevent the offering of the record to show such former conviction. |