(113 A.)

ALBERT v. NATIONAL OUTFITTING CO. (Supreme Court of Pennsylvania. April 11, 1921.)

Partition 95-Tenant for years entitled to retain possession as against plaintiff who recovered property in partition.

Where plaintiff and another, as tenants in common, leased the premises to plaintiff with renewal privilege, and plaintiff sublet under an agreement that the sublessee could assign to defendant, plaintiff, having in partition proceedings against alienees of his former cotenant recovered the undivided one-half interest conveyed to such cotenant, cannot, by virtue of Act March 16, 1905 (P. L. 42; Pa. St. 1920, 88 16575, 16576), and Act April 20, 1905, (P. L. 239, § 14; Pa. St. 1920, § 10554), recover possession on the theory that, as the original conveyance antedated the lease, the possession of the tenant for years was subordinate to the rights of plaintiff, for not only was plaintiff himself the lessor, but the statute declares that the possession of a tenant for years is paramount if the letting shall precede in point of time the entry of the decree in partition.

the recording or registering of the mortgage, deed or will, if any, through which by legal proceedings the purchaser derives title, unless the letting is made with actual notice to such tenant of the contemplated entry of such judgment, order or decree, or of the fact of the ex

ecution of such mortgage, deed or other instrument of writing, and with intent to avoid the effect thereof."

That the learned court below was right in denying to appellant the remedy he seeks will be manifested by a recital of the facts Albert and disclosed in the proceeding. Ralph Schwartz became seized of the prop erty in question, as tenants in common, by deed dated September 5, 1911. On June 1, 1917, Schwartz and Albert leased the premises to Albert for a term of five years, with the privilege of renewal for a like term, In August, and with the right to sublet. 1918, Albert as lessee sublet to one Kaplan, and agreed that Kaplan could assign the lease to the National Outfitting Company (appellee), which assignment was made October 19, 1918. Subsequently in proceedings in partition instituted by Albert against alienees of his former cotenant, Schwartz, the undivided one-half interest belonging to them was awarded to him, and he gave notice to the National Outfitting Company that he elected to disaffirm the lease which he had executed, and to repossess himself of the entire property. Upon its refusal to assent to his demand for possession, he began this Argued before MOSCHZISKER, C. J., and proceeding, claiming that the original deed FRAZER, HART, SADLER, and SCHAFFER, JJ.

Appeal from Court of Common Pleas, Lehigh County; Charles A. Groman, Judge. Proceeding by Max Albert against the National Outfitting Company to obtain possession of property held by defendant as tenant for years. From a decree for deAffirmed.

fendant, plaintiff appeals.

WALLING, SIMPSON,

KEP

Dallas Dillinger, Jr., of Allentown, for appellant.

L. H. Rupp, of Allentown, for appellee.

to him of September 5, 1911, through which, by the partition proceedings, he obtained title to the property in severalty in fee, “preceded in point of date" the date of the lease and the assignment thereof to the Outfitting Company and that he was entitled to possession. With this position we cannot agree. SCHAFFER, J. Appellant, to whom an undivided one-half interest in real estate Appellant seeks to avoid a lease in which had been awarded in partition proceedings, he was both a party lessor and lessee. Not he already having title to the other half inter-only does the act which he invokes not give est, brought a proceeding in the court below him the right which he claims, but it proto obtain possession of the property, then held tects the appellee which claims through him He bases his claim as lessee in its leasehold rights. The possesby a tenant for years. on the act of March 16, 1905 (P. L. 42; Pa. sion of a tenant for years is paramount to an St. 1920, §§ 16575, 16576), the second section owner claiming possession under a decree in of which provides that the party to whom partition "if the letting to him shall precede land shall be adjudged in partition may ob- in point of date the entry of the tain possession thereof in like manner as if order or decree on which such sale was had, the same had been sold by virtue of an ex- and also shall precede the recording * deed * through which ecution, and on section 14 of the act of of the * April 20, 1905 (P. L. 239; Pa. St. 1920, § by legal proceedings the purchaser derives 10554), which provides for the recovery of title." The order or decree to which the act possession after judicial sales in the follow-under the circumstances here existing refers ing terms:

"The right of possession of a tenant for years shall be deemed paramount to that of a purchaser at a judicial sale if, and only if, the letting to him shall precede in point of date the entry of the judgment, order or decree on which such sale was had, and also shall precede

*

* * *

is the decree in partition, and the deed "through which by legal proceedings" the appellant derives title is the deed growing out of the partition proceedings. The lease "in point of date" precedes both of these and is paramount.

The decree is affirmed at appellant's cost.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

1. Wills 476-Codicil part of will as if on Plaintiff's motion that the trial be limited same paper.

2. Wills 199-Ratification of will confirms undue influence sustained; exception as to it with every codicil added to it. issue of sanity overruled.

6. Wills 324 (2)-Mental capacity of aged one will. and ill testator held for jury.

Mental capacity of aged and ill testator held taken as one." Bouvier's Law Dict.; Spicer for the jury.

(113 A.)

thing to show it was meant to be coupled with another instrument, it is not to be taken as a codicil. But if it does purport to be coupled with another instrument, it is as much a part of that instrument as if it was written on the same paper." Crosbie v. MacDougal, 4 Ves. Jr. 610, 616. In law a man's will is the instrument by which he expresses his intentions as to the disposition of his property at his death. It is immaterial of how many parts the instrument may be formed. All constitute one will. 1 Redf. Wills, p. 288; Brown v. Ferren, 73 N. HI. 6, 7, 58 Atl. 870; Hall v. Smith, 61 N. HI. 144. "There may be many codicils; there can be but one will." 1 Jarın. Wills, p. 27, note. The ordinary understanding is the same. Webster and Century Dict. titles, Codicil, Will; P. S. c. 2, § 22.

There is no evidence Mrs. Dow or any of the beneficiaries of the will knew anything about it until after it was executed. It was drawn and executed in the office of the scrivener. All information as to the details of the will were furnished by the testator, and none of the beneficiaries were present when the will was drawn or executed, or at any interview between the scrivener and the testator. In the absence of direct evidence showing control in the making of the will the question is whether the provisions of the will are such that the jury may infer that they would not voluntarily have been made by such a man as the evidence discloses the testator to have been. The testator's wife died in 1912. He had two daughters and one son, numerous grandchildren and great grandchildren, and an estate of substantially $100,000. [5, 6] The codicil of September 7, 1917, There was evidence of a will made in 1899 ratified and confirmed the will of November or 1900. This will was not produced, and 5, 1915, subject to the minor changes then there was conflict in the evidence as to its made. If the decree of the probate court provisions. But it made substantial gifts to allowing the codicil as a part of Eaton's each of the testator's children, with the poswill remains in force, it is immaterial wheth-sible exception of one, who was left only $200 er there was, or not, a valid execution of the testamentary paper of the earlier date. The appellant therefore could not have intended to exclude from his appeal the action of the court upon the testamentary effort of September 7, 1917. There is nothing in the common use of language or in the legal interpretation of terms upon which to exclude that action from his attack upon the probate of the will. The motion to so limit the issues was properly denied. The testator's health mental and physical was affected by disease and his age. The jury has found he was of sound mind November 5, 1915. The sufficiency of the evidence to sustain this verdict is not attacked. There was evidence tending to show increased impairment of his mental and physical faculties on September 7, 1917, three weeks before he died. Medical evidence from the physician attending him in his last sickness and from experts called by the contestant tended to prove the testator's incapacity on that date. This evidence was positively contradicted by professional and lay witnesses; but, as there was some evidence tending to disprove the issue of sanity, there was not error in submitting the issue to the jury. The only question remaining is the sufficiency of the evidence to authorize a finding that the will was produced by undue influence on the part of persons interested in the making of the will. There is evidence that the relations between the testator and his housekeeper, Mrs. Dow, whose influence is relied upon to invalidate the will, were more intimate than the law or the morals of the time approve, and had been such for many years. They had lived together, and she had cared for him in sickness and health for 20 years or more.

in the will of 1915. A piece of real estate, the value of which did not appear, was given to Mrs. Dow, and the residue to the testator's wife. The substantial change in the will of 1915 is in making the gifts to the children and Mrs. Dow of a certain sum each in money and in a gift of the residue to the son, one daughter, and Mrs. Dow. For the gift to the son a spendthrift trust was created, the residue unused at the son's death to go to Mrs. Dow, a daughter and granddaughter. The will is attacked because of the gift to Mrs. Dow. As there were three heirs, the son, Perry A. Eaton, would receive, if there were no will, about $33,000 as his share of the estate. There is given him, in the gift to him of $10,000 and one-third of the residue, about $30,000. The son alone appeals from the probate of the will. It seems clear that the spendthrift trust, rather than the gift to Mrs. Dow, is the cause of his dissatisfaction with the provision made by his father for him.

[7, 8] Mrs. Dow must have known that a provision of this sort would invite attack upon the will, and if she influenced the making of the will she could not intentionally have caused the insertion of a provision having a possible tendency to destroy the gift to her. The most that the evidence tends to show is that Mrs. Dow had the opportunity and possibly the ability to influence the testator. The spendthrift trust does not tend to establish the successful exercise of such influence, but the contrary. Neither does the gift to Mrs. Dow furnish evidence of undue influence successfully exerted by her. The question is, Is the will presented for the testator his will, or is it the will of another, which by fraud or force he was induced or

compelled to adopt as his own?

Albee v. Osgood, 79 N. H. 89, 105 Atl. 1. There was evidence that as far back as 1899 or 1900 the testator intended a substantial gift to Mrs. Dow. In 1915 his unchanged purpose is not evidence of a change by undue influence. The fact that he carried out in 1915 the purpose entertained by him 15 years earlier is not evidence that the testator was coerced into making the gift. The mere fact of the gift to one who had so long sustained the relation Mrs. Dow had to him is not so unusual or unreasonable as to permit the inference that he did not wish to benefit her

Two pieces of evidence are relied upon as furnishing a motive and proof of the actual influence of Mrs. Dow in the making of the codicil. In 1905, in reply to some criticism by the son of the relations between the testator and Mrs. Dow, she said to him, "You will be sorry for this some day." When the codicil was being drawn and executed Mrs. Dow was in and out of the room, but there was no evidence she made any suggestions or took any part in the business. After it was completed she said to the daughter whose legacy was increased thereby:

"You have nothing to feel bad for, after what your father has done for you. You can thank me for that."

If the provision for this daughter were at all unreasonable, one that under the circumstances the testator would not be likely to make, this remark might be evidence of the compelling influence of another in its makBut the testator was nearing death, his daughter was caring for him. It was natural that as life drew to its close under these circumstances he should repent of the severe penalty which his displeasure had visited upon his daughter, and to some extent lighten its severity. If the remark amounts to more than a claim of successful appeal to the father in behalf of the daughter, it is at most a mere scintilla of too little weight to justify a verdict. As to Mrs. Dow's hostility to Perry, Jr., authorizing the conclusion that her influence coerced the testator into cutting down his legacy, what has already been said answers the contention. It cannot reasonably be inferred that Mrs. Dow interfered at the last moment to create a

as he did in the will. Though not legally his wife, he gave her practically a wife's share, which the change in his situation by the death of his wife in 1912 permitted him to do without materially affecting his direct heirs whom he wished to make objects of his bounty. The motion to order a verdict for the plaintiff upon the issue of undue influence in the execution of the willing. September 5, 1915, should have been granted. This verdict, with the one found by the jury, establishes the validity of the instrument of that date. The provisions of the codicil, if the issue of sanity is found for the plaintiff, become important, but of themselves they furnish no evidence of undue influence exerted by Mrs. Dow. The testator had since the making of the will built for himself a mausoleum or family tomb. The first gift is to the town for the care of this tomb. This sum, $200, the executor can without doubt obtain authority to pay to the town even if the codicil fails. Smart v. Town of Durham, 77 N. H. 56, 60, 86 Atl. 821; Laws 1911, c. 32. The will contains a gift to each of the testator's grandchildren and great grandchil-change in the will which did not materially dren. Since the date of the will another grandchild had been born. A gift is made to the new arrival. There was evidence that the testator had become reconciled to the daughter, to whom only $200 had been given by the will. She was, when the codicil was made, living with and caring for him. She is now given $5,000, instead of $200. Then the direct gift to the son is cut down from $10,000 to $5,000. The increased gift to the daughter did not benefit Mrs. Dow. By that gift alone the residuum of which she was to have a third part was so much diminished. By the cancellation of one-half of the gift to the son the loss to the residuum was restored, but Mrs. Dow's possible interest in the sum left to the son was equally reduced.

benefit her, and the effect of which would be to increase the probability of an attack upon the will and the possible destruction of her legacy. The evidence is of too little weight to authorize a verdict, even if it has some tendency to prove the issue. The change in the will does not furnish evidence that she made it instead of Perry Eaton. A verdict should have been ordered on this issue also.

The issue undetermined is that of the mental competency of the testator September 7, 1917.

Exceptions as to issue of undue influence sustained.

Exception as to the issue of sanity overruled.

All concurred.

(113 A.)

ADAMS v. STRAIN. (No. 1699.)

(Supreme Court of New Hampshire. Grafton. April 5, 1921.)

1. Trial 122 Misstating why opponent's witness was not present held not unfair argument.

A comment by counsel that one of opponent's witnesses was not there; "they say the train broke down on the way down. Maybe it did, and maybe it didn't. I don't know how that is"-whereas the testimony of the opposing party was that such witness attempted to come by automobile, but could not get through, held not prejudicial; the error in the statement not being of such a character as to lead to the conclusion that it was intentional, being probably a mere misrecollection or accidental misstatement of the evidence, which does not render a trial unfair as a matter of law.

2. Assault and battery 38 - Instruction as to compensation where malice exists held proper.

In an action for damages for assault and battery, court did not err in instructing the jury in substance that, if they found the assault was maliciously and wantonly committed, they would apply a more liberal rule of damages in awarding compensation to the plaintiff than they would if those elements did not exist.

3. Evidence 317(2) — What defendant had been told not admissible to lessen damages

for assault.

Testimony of defendant, in an action for damages for assault and battery, that a certain person had told him that plaintiff had made certain slanderous statements about the defendant, was not admissible to lessen the recoverable damages; such testimony being hearsay, so far as the issue of what the plaintiff had said was concerned.

fendant brings exceptions. Exceptions overruled.

Nathaniel E. Martin and David F. Dudley, both of Concord, and Frank B. Clark, of Canaan, for plaintiff.

Robert W. Upton, of Concord, and John H. Noonan, of Enfield, for defendant.

PLUMMER, J. [1] In the course of the trial the defendant presented evidence as to statements made by a Miss Manion, wherein she charged the plaintiff with having made certain slanderous remarks about the defendant. The defendant testified relative to the Comment was absence of Miss Manion. made respecting this testimony by plaintiff's counsel in the following language, to which exception was taken:

"Now let us see. They had no reason for doing it (referring to the assault). The story came, so they say, when a woman named Manion, after Mr. Adams went away, told them he had talked against the house. Well, she isn't here. They say the train broke down on the way down. Maybe it did, and maybe it didn't. I don't know how that is."

The complaint made against this argument is that counsel stated that the defendant claimed the absence of the witness was occasioned by the default of a train; wherestance appears to be that she attempted to as the testimony of the defendant in subcome by automobile, but could not get through. The error in the statement was not

of such a character as to lead to the conclusion that it was intentional; it was probably "a mere misrecollection or accidental misstatement of the evidence," which "does not render the trial unfair as a matter of law." State v. Wren, 77 N. H. 361, 364, 92 Atl. 170,

4. Assault and battery 39 - Punitive dam- 172, 173; Benoit v. Perkins, 79 N. H. 11, 19, ages not recoverable.

Punitive damages are not recoverable in an action for assault and battery.

5. Trial 194 (16)-Instruction on mitigation of damages for assault by reason of slander not erroneous, as invading jury province.

104 Atl. 254.

The statement of counsel, that the defendant claimed the absence of a witness was caused by a train, instead of an automobile, would not seem to be materially prejudicial to the defendant's case. It cannot be said In an action for damages for assault and that the remarks were "so inconsistent with battery, an instruction as to mitigation of dam-legal fairness of trial as to make it a matter ages, that "the mere reports of such slanders of law that there should be a new trial." coming to the ears of the defendant would not Aldrich v. Railroad, 67 N. H. 380, 382, 36 justify him in taking action against the plain- Atl. 252; Gault v. Railroad, 63 N. H. 356, 360, tiff, or serve to indicate damages, unless those reports are shown to have been true. So here 361; Gilman v. Laconia, 71 N. H. 212, 51 Atl. the statements attributed to plaintiff are not 631; Guertin v. Hudson, 71 N. H. 505, 53 Atl. evidence of the truth of the charge contained in 736. those statements," etc., held not erroneous as preventing jury from finding that plaintiff by his conduct admitted he made alleged slanderous remarks concerning defendant.

[2] The court instructed the jury in substance that, if they found the assault was maliciously and wantonly committed, they would apply a more liberal rule of damages in awarding compensation to the plaintiff Transferred from Superior Court, Grafton than they would if those elements did not exCounty; Branch, Judge.

Action by George E. Adams against James H. Strain. Verdict for plaintiff, and de

ist.

An exception was taken by the defendant to this instruction. The law of the state relative to the assessment of damages for

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
113 A.-14