Action by Forrest Raymond Carpenter | mere volunteer to whom no duty was owed against the Salmon Falls Manufacturing to exercise care is not supported by the eviCompany and another. The plaintiff was dence. He was in charge of the boiler house, employed as engineer in charge of the com- and there were pipes which were likely to be pany's power house. The company sold two damaged by Zecchini's operations. In seekold boilers, situated in the power house, to ing to avert damage from the falling of the Gutterson & Gould, who were to cut up and smaller segments and in pausing a moment remove the same. The plaintiff was injured to see how Zecchini got on with the affair, by the falling of a section of the boiler cas- the plaintiff was well within the scope of his ing while the process of removal by Gutter-employment, and of his employer's rights as son & Gould's servants was going on. At the close of the plaintiff's evidence the defendants moved for a nousuit, and agreed that, if the motion was granted and the ruling should be reversed upon exception, the plaintiff should have judgment for $2,500. Thereupon the court ordered a nonsuit in favor of each defendant, and the plaintiff excepted. Judg-ployer, a different question is presented. It ment for plaintiff. Hughes & Doe and Robert Doe, all of Dover, for plaintiff. Snow, Snow & Cooper and B. R. Cooper, all of Rochester, for defendant Salmon Falls Mfg. Co. Alvin J. Lucier, of Nashua, for defendants Gutterson & Gould. PEASLEE, J. The plaintiff was in charge of the company's boiler house, in which Gutterson & Gould were engaged in cutting up and removing old boilers which they had bought of the company. The boiler casings were circular and the bottom section, which Zecchini (Gutterson & Gould's servant) was cutting into segments by the use of a torch, was about six feet high, and rested upon an insecurely arranged platform constructed by him. When the plaintiff came to the place there were two large segments left standing. Zecchini was just finishing cutting one of these into two, and the plaintiff, seeing one of these smaller segments about to fall, held it up until Zecchini could take it. The plaintiff then stepped back to what he judged to be a safe place, and in the course of Zecchini's operations with the smaller segments the remaining large one fell and injured the plaintiff. [1] Upon the issues of Zecchini's negligence and the plaintiff's care the case does not differ essentially from Corbett v. Hines, 112 Atl. 796. The argument that the plaintiff was in fault because he did not stand clear of possible harm from the larger segment was a proper one to urge upon the jury, but it is not conclusive of the issue. The trouble ap peared to be with the smaller segments, which of course stood less securely than the larger one. Whether the plaintiff ought to have seen and appreciated the insecurity of the platform and the likelihood that Zecchini's operations would cause the larger segment to fall is a matter about which reasonable men might differ. they related to Zecchini's employers. There was evidence for the jury upon the issues between the plaintiff and Gutterson & Gould, and in accordance with the stipulation in the case the plaintiff is entitled to a judgment against them. [3] As to the liability of the plaintiff's em was a part of the plaintiff's work to look after the company's property in the boiler house, and it was a part of the company's duty to see that this work place was reasonably safe. If it permitted those who were not its servants to conduct operations there, the duty was not changed. Whatever the contract was under which the servants of Gutterson & Gould were operating at the plaintiff's work place, it did not relieve the company from its liability to the plaintiff for there. Story v. Railroad, 70 N. H. 364, 368, conditions which it permitted to be created 48 Atl. 288. "Where the duty sought to be enforced is one imposed by law upon the defendant, he cannot escape liability by showing that he employed another, over whom he had no control, to perform it for him." Pittsfield Co. v. Shoe Co., 71 N. H. 522, 530, 53 Atl. 807, 809 (60 L. R. A. 116). The removal of these boilers involves the safety of the place designed for the plaintiff to prosecute his work. Even if it were conceded that, as the company claims, it would not be liable for momentary dangers created by Zecchini's carelessness, it would not be entitled to a verdict as matter of law. The company was certainly bound to see that the methods adopted, and the results arrived at were reasonably safe. It did not perform this duty, but permitted the work to be carried on by what might be found to be a dangerous method, likely to cause injury to the plaintiff in the course of his work. Zecchini constructed and worked upon a faulty platform, and it could also be found that he should have either supported the segments in some way or else not have left them standing. If reasonable supervision of Zecchini's methods and work would have relieved the company from liability, it does not appear` that it performed such duty. The question whether the plaintiff could recover under the Employers' Liability Act (Laws 1911, c. 163, § 1) has been argued, but (112 A.) fers the question whether the Judgment for the plaintiff. plaintiff | adequately covered the case, and it was not KILLEEN V. DELAWARE, L. & W. R. CO. (Supreme Court of Pennsylvania. March 21, 1921.) 1. Appeal and error 215(1)-Minor objections to instructions not considered, on failure to object in lower court. A party, who submitted no requests and remained silent when the trial judge asked if PATTIN v. SCOTT. anything had been omitted from or misstated (Supreme Court of Pennsylvania. March 14, in the charge, cannot on appeal raise minor objections to the instructions. 2. Trial 213-Jury may be instructed that allegation and proof must agree. It was not error to instruct that the allegata and probata must agree. 1921.) 1. Wills 601(1)-Dominant intent to give estate less than fee simple will be upheld, but not intent to strip fee simple of inherent qualities. Where a testator uses language suitable to the grant of a fee-simple estate, but by words 3. Carriers 316(1)—Passenger, suing for immediately following indicates a dominant injuries from obstruction in aisle, required to intent to give only a less estate, such purpose prove its existence. will be upheld; but where the dominant purPassenger, suing railroad for injuries caus-pose is to devise a fee-simple estate, and the ed by obstruction in aisle of car, had the bur- subsequent language indicates merely a subden of proving the existence of such obstruc-ordinate intent to strip the estate so given of tion. its inherent attributes, a fee-simple estate passes. Appeal from Court of Common Pleas, 2. Wills 601 (4) Restraint on alienation Lackawanna County; Edward C. Newcomb, for 25 years held void. Judge. Where a testator, after devising real and Action by Bernard Killeen against the Del-personal property to a niece and her heirs for Affirmed. aware, Lackawanna & Western Railroad Stanley F. Coar, of Scranton, for appellant. PER CURIAM. On the evening of January 12, 1917, plaintiff, while walking through the aisle of one of defendant's cars, on which he was a passenger, fell and was injured. The gravamen of his complaint is that, as the car was not lighted, he tripped over some unknown obstruction, suffered to remain in the aisle. The case was submitted to the jury, who found for defendant. ever, further provided that she should have no right to convey a particular piece of real estate for 25 years, the restraint on alienation was an attempt to withhold an inseparable quality of a fee-simple estate and was void, especially where there was no devise over and no provision for forfeiture on alienation. Appeal from Court of Common Pleas, Allegheny County; Marshall Brown, Judge. S. Scott. From a judgment for plaintiff, deAction by Louanna D. Pattin against Mary fendant appeals. Affirmed. Argued before MOSCHZISKER, C. J., and FRAZER, SIMPSON, SADLER, and SCHAFFER, JJ. Franklin T. Nevin, of Pittsburgh, for appellant. Charles Alvin Jones and Sterrett & Acheson, all of Pittsburgh, for appellee. [1-3] The only errors assigned by appellant (plaintiff) relate to the charge of the trial judge. As plaintiff submitted no requests, and remained silent when the trial judge asked if anything had been omitted from or misstated in the charge, he cannot now raise minor objections thereto, and we find no substantial ground of complaint. The chargeant. MOSCHZISKER, C. J. This action was instituted to recover an unpaid balance on the purchase price of a piece of real estate, which plaintiff agreed in writing to sell to defendJudgment was entered for want of a sufficient affidavit of defense, and the present | one form or another, in McCullough's Heirs appeal followed. Defendant's affidavit admits all the material averments of the statement of claim, but sets up the defense that plaintiff had no power to convey a fee, because of a restraint on alienation contained in the devise by which she acquired the property in controversy. The testamentary provision in question, contained in the will of Louisa W. Terburgh, deceased, dated March 24, 1903, and probated on the day of her death, October 22, 1903, reads thus: "Eighth. All the rest residue and remainder of my estate, real, personal, and mixed, I give, devise and bequeath to my niece, Lou Anna Pattin, and her heirs forever, with this proviso, that she, my said niece, shall not have the right to sell and convey in fee simple that portion of my real estate, passing under this clause of my will, situate in the Second Ward of the City of Pittsburgh, being a lot forty by eighty feet in the northeast corner of Second avenue and Cherry alley, comprising premises Nos. 425 and 427 Second avenue, for a period of twenty-five (25) years after my decease." v. Gilmore, 11 Pa. 370, 373, Jauretche v. Proctor, 48 Pa. 466, 472, Barker's Estate, 159 Pa. 518, 526, 28 Atl. 365, 368, Yost v. Insurance Co., 179 Pa. 381, 385, 36 Atl. 317, 57 Am. St. Rep. 604, and Kaufman v. Burgert, 195 Pa. 274, 276, 45 Atl. 725, 78 Am. St. Rep. 813; but in every instance it appears simply as dictum, and this, in effect, was largely repudiated in Sanders v. Mamolen, supra, and Sparr v. Kidder, 265 Pa. 61, 63, 108 Atl. 204. As against the dicta above referred to, we have the language of this court in Hauer's Lessee v. Shitz, 3 Yeates, 205, 220, where following the devise of a fee, there was a provision restraining alienation until the devisee reached the age of thirty, and we said: "If by the will there was a vested fee simple, have been absolutely nugatory." * * the prohibition to sell till 30 would And in Yost v. Insurance Co., supra, relied on by appellant, we said: "The weight of authority seems to be against citing 6 Am. & Eng. Ency, of Law 877, note 4. such restraints however limited as to time" The following cases and text-books indistated: Kreuger v. Frederick, 88 N. J. Eq. 258, cate that the weight of authority is as just [1] Where a testator in the first instance uses language suitable to the grant of a feesimple estate, but by subsequent words, imnrediately following in the devise, indicates a dominant intent to give only a less estate, the latter purpose will be upheld. Sheets' Estate, 52 Pa. 257, 263; Urich v. Merkel, 81 Pa. 332,102 Atl. 697, 698; Potter v. Couch, 141 U. s. 335; Boulevard from Second Street, 230 Pa. 296, 315, 11 Sup. Ct. 1005, 35 L. Ed. 721; Zill491, 495, 79 Atl. 716; Field's Estate, 266 Pa. mer v. Landguth, 94 Wis. 607, 609, 69 N. 474, 477, 109 Atl. 677. 1 Jarman on Wills, W. 568; McIntyre v. Dietrich, 294 Ill. 126, 416. On the other hand, where it is apparent 128 N. E. 321, 323; Manierre v. Wolling, 32 from the words of the will that the dominant R. I, 104, 78 Atl. 507, Ann. Cas. 1912C, 1311; purpose of the testator is to devise a fee-sim- Hause v. O'Leary, 136 Minn. 126, 129, 161 ple estate, and the subsequent language in-N. W. 392; Twitty v. Camp, 62 N. C. 61, 62; dicates merely a subordinate intent to strip the estate thus given of one or more of its inherent attributes, the law will hold that this cannot be done, and the fee-simple estate passes to the devisee with all of its inherent qualities. Reifsnyder v. Hunter, 19 Pa. 41, 44; Walker v. Vincent, 19 Pa. 369, 371, 372; Doebler's Appeal, 64 Pa. 14, 17; Sanders v. Mamolen, 213 Pa. 359, 361, 62 Atl. 981; Breinig v. Smith, 267 Pa. 207, 211, 110 Atl. 285. The rules just stated present the law of Pennsylvania; but some dicta, from several eminent judges, have crept into our cases, which require notice. In McWilliams v. Nisly, 2 Serg. & R. 507, 513, 7 Am. Dec. 654, Chief Justice Tilghman said: "If, after giving a fee, a general and perpetual restriction of alienation were added, the restriction would be void; but if the restriction be partial," such as the restriction of alienation during a particular time, "it would be good." The case just cited, however, turned on another point, and the matter quoted is but Anderson v. Cary, 36 Ohio, 506, 517, 38 Am. Rep. 602; 40 Cyc. 1588; Underhill on Wills, Alienation, p. 39, § 52; Jarman on Wills (6th vol. 1, p. 688, sec. 524; Gray's Restraints on Ed.) vol. 1, p. 562, and vol. 2, p. 1487; Bigelow on Wills, 229, 230. The only jurisdiction See Speckman v. Meyer, 187 Ky. 687, 220 S. we find holding to the contrary is Kentucky: W. 529. found a most elaborate judicial consideration, In Manierre v. Welling, supra, will be by the Supreme Court of Rhode Island, of attempted limitations on alienation, discuslimitation restricted as to time occurring in sion concerning the particular point of a 32 R. I. at page 104, 78 Atl. 507, Ann. Cas. 1912C, 1321 et seq., with pregnant matter at page 1324, and finally a note, citing additional American cases, at page 1329, states the conclusion that, where an estate in fee simple is granted, "a clause in the deed or will which is in restraint of alienation is void and will be rejected," and further "that this is so, even though the restraint is limited as to time." Judge Penrose, in Singerly's Estate, 14 Phila. 313, 316, expresses the same (112 A.) so referred to, but not decided, in Stone v. [left to her for life would not necessarily create Carter, 48 Pa. Super. Ct. 236, 239. a fee. tate. [2] Apparently there is no direct Penn- 2. Wills 616(1)—Devisee held given life essylvania ruling on the precise point here involved; but this court, in recent years, has repeatedly said that "A testator in giving a fee 'cannot strip it of its nature and properties.' He cannot withhold from such an estate qualities which the law recognizes as inseparable from it." Boulevard from Second Street, 230 Pa. 491, 495, 79 Atl. 716, 718. And see Levy's Estate, 153 Pa. 174, 179, 25 Atl. 1068, 1070, Jauretche v. Proctor, 48 Pa. 466, 471, Phila. v. Girard's Heirs, 45 Pa. 9, 27, 84 Am. Dec. 470, Huber v. Hamilton, 211 Pa. 289, 290, 60 Atl. 789, and Allen v. Hirlinger, 219 Pa. 56, 58, 67 Atl. 907, 13 L. R. A. (N. S.) 458, 123 Am. St. Rep. 617. After formally giving a fee, to deny the right of alienation for 25 years, as in the present case, is as much an attempt to "withhold" an "inseparable quality" as to deny it entirely. The only difference is in degree, not in character. A will giving the residuary estate to a daughter for her own use and benefit during her natural life, and providing that she might sell at public or private sale at any time during her life, and receive the proceeds for her own use during her life, gave a life estate, unless such provisions were modified by other provisions of the will. 3. Wills 594 "Issue" is not equivalent to "heirs of the body." in itself the equivalent of the technical phrase "heirs of the body," and is so construed only when probably so intended by the testator. The term "issue," as used in a will, is not and Phrases, First and Second Series, Heirs of [Ed. Note.-For other definitions, see Words the Body; Issue.] 608 (2)-Rule in Shelley's Case applies when case falls within it, but intention must be found. The rule in Shelley's Case is a rule of law, urally falling within the rule; but the intenand applies with all its attributes to a case nattion of the testator that the case shall so fall must be found in each case before the rule is applied thereto. 5. Wills 594-Statute as to construction of provisions for death without issue should be treated liberally. In the case at bar, "no one could limit a fee simple more artistically and precisely" (Reifsnyder v. Hunter, 19 Pa. 41, 44) than does the present testatrix; and it is to be noted that, after making this correct limitation of the fee, while she attempts to restrict the alienation thereof during a period of 25 years, there is no mention of a devise over, nor of forfeiture upon alienation within the and re-enacted by Act June 7, 1917 (P. L. 408, Act July 9, 1897 (P. L. 213), as repealed prescribed period. There is simply the bare § 14; Pa. St. 1920, § 8322), providing that attempt to take from the owner of the fee words importing a want or failure of issue, the right of alienation for a period of years; shall be construed to mean a want or failure and this, after the grant of a fee simple es- of issue in the lifetime or at the death of the tate, was beyond the power of testatrix to ac-person, and not an indefinite failure of his iscomplish. If testatrix desired to keep her property in the hands of one person during the indicated period, she might have created a trust for that purpose; but she could not give a fee and restrict its alienability, as she attempted to do. We agree with the court below that plaintiff has a fee simple in the real estate here in controversy, with all the attributes thereof, including the right to convey a good and marketable title. sue, unless a contrary intention appears, is in harmony with the modern tendency of the law to find and enforce the actual intent, and should be taken advantage of and given the broadest opportunity for success by the judiciary. 6. Wills 607(1)-Devise held not to refer to indefinite failure of issue, and hence not to create estate tail, but life estate. life, and providing that at her death it should A will devising property to a daughter for go to her issue, if she left any, and that, if she left no lawful issue, it should go to third parties, The assignments of error are overruled, when construed in the light of Act July 9, and the judgment is affirmed. 1897 (P. L. 213), as repealed and re-enacted by Act June 7, 1917 (P. L. 408, § 14; Pa. St. 1920, § 8322), did not refer to an indefinite failure of issue, and hence did not create an estate In re ENGLISH'S ESTATE. In re LAW-tail, converted into a fee simple by the act of RENCE SAVINGS & TRUST CO. Appeal 1855, but a life estate, with remainder over. of BOARD OF FOREIGN MISSIONS OF PRESBYTERIAN CHURCH IN UNITED STATES. (Supreme Court of Pennsylvania. March 7, 1921.) 1. Wills 616(1)—Power of disposition does not necessarily create fee. That a testator intended to confer on a life tenant the right to consume the property Appeal from Orphans' Court, Lawrence County; S. Plummer Emery, President Judge. Proceeding on the first partial account of the Lawrence Savings & Trust Company, executor of Mary E. English, deceased, also proceedings on the first partial account of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes intention would control, and give Mary E. English an estate tail, which, by the act of 1855 (P. L. 368), becomes a fee simple. Therefore a preliminary question to be solved is: Did testatrix-by the provision that, at the death of the daughter, the estate should go to "her issue, if she leaves any at her death, * * but, if she leaves no such lawful issue," then over to appellant-mean to employ the word "issue" as indicating a Robert L. Wallace and Wylie M. Caslin, line of inheritance from the devisee, or mereboth of New Castle, for appellant. ly as a description of the persons next to W. K. Hugus and Robert K. Aiken, both take from her, the testatrix? New Castle, for appellee. MOSCHZISKER, C. J. The question involved is: Does the daughter of testatrix take a life estate or a fee simple? The court below decided that she possessed the latter, and a remainderman, whose interest is thus defeated, has appealed. Rachel English, by will dated July 12, 1904, disposed of the residue of her estate as follows: [3] While "issue," when used in a devise, has been held time and again to mean the same as "heirs of the body," yet such construction was adopted only on the theory that the word was probably so intended by the testator, and not with the idea that the term "issue," of and in itself, is the equivalent of the technical phrase "heirs of the body." Taylor v. Taylor, 63 Pa. 481, 484 (3 Am. Rep. 565). Speaking on the point in hand, in the case last cited, Justice Sharswood said: strued to be a word of purchase; and the rule in Shelley's Case can have no application." "I give and bequeath to my daughter Mary E. English all the rest and residue of my prop- "If it appears, either by expression or clear erty and estate of whatsoever character and implication, that by the word 'issue' the testawheresoever situated of which for her own tor meant * * * issue living at a particular use and benefit during her natural life. The period, as at the death of the first taker, and personal estate to go into her hands possession not the whole line of succession, which would and control and the proceeds and any real es- be included under the term 'heirs of the body,' tate she also shall have power to sell at pub-it [the word 'issue'] must necessarily be conlic or private sale without giving any security, I may leave at my decease at any time during her life receive the proceeds for her own use during her life. * * At the death of my said daughter the estate in her care demise [devised] from me under this will shall go to her issue if she leaves any at her death to be divided among them. But if she leaves no such lawful issue then the same shall go to the Foreign and Home Missions of the Presbyterian Church of America to be divided equally between the Home and Foreign Missions of America." [1] Mary E. English survived Rachel English, but died May 21, 1918, unmarried and without issue, leaving her mother's estate intact; perhaps the latter wished to confer upon the former the right to consume the property left to her, but this would not necessarily create a fee. Nieman's Estate, 229 Pa. 41, 77 Atl. 1095; Watson's Estate, 241 Pa. 271, 88 Atl. 433. [2] It is apparent from the first part of the devise, as above quoted, that testatrix intended to give Mary E. English only a life estate; for she therein uses the expression "during her life" three times, and subsequently refers to the daughter's interest as "the estate in her care." If, however, the mother likewise intended that the issue of her daughter should take from the latter as a source of inheritable succession, as appellee contends is shown by the use of the word "issue," with its context, in the second part of the devise, then this last-mentioned To decide what the present testatrix meant by the use of the word "issue," we must first see what fixed legal meaning, if any, that word, as here used, had at the date of the will. The act of July 9, 1897 (P. L. 213), provides: "In any gift, grant, devise or bequest of real or personal estate, the words 'die without issue,' or 'die without leaving issue,' or 'have no issue,' or any other words which may import either a want or failure of issue of any person in his lifetime, or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the death of such person, and not indefinite failure of his issue, unless a contrary intention shall appear by the deed, will devise or bequest is made or contained." or other instrument in which such gift, grant, This statute was repealed by and re-enacted in the Wills Act of June 7, 1917. See section 14, P. L. 408 (Pa. St. 1920, § 8322). In Dilworth v. Schuylkill Imp. Land Co., 219 Pa. 527, 69 Atl. 47, the constitutionality of the act of 1897 was sustained; it being there held that the Legislature had power to fix the legal meaning of words or phrases for future use, and that, by this statute, the law-makers evidently intended (219 Pa. 529, 69 Atl. 48)— "Certain words and phrases in regard to failure of issue, which, standing by them |