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count. The district court referred it to a commissioner to take proofs and report the amount due. Libellant was employed to put the engines in repair and fit them up thoroughly in the best manner and as rapidly as possible, but no price was agreed upon in advance. The libellant served a bill of particulars, which fills 20 printed pages of the record, and avers in his libel that the work done and materials furnished were necessary and were reasonably worth the sum of $4,122.87. The issues raised by the pleadings were as to the doing of the work and furnishing the materials set forth in the bill of particulars, and as to the reasonable value thereof.
The report of the commissioner is simply: "In my judgment, the libellant has clearly proved his case, and I find that there is due him a balance [after crediting the $2,000] of $2,109.12." This is $13.75 less than libellant's claim, but the commissioner does not state what item or items he disallowed or reduced.
In the absence of any discussion of the case by the commissioner, it is wholly impossible to ascertain by what process of reasoning he reached his conclusion. There was evidence sufficient to sustain a finding that the prices charged for specific items in the bill were reasonable and customary. There is also abundant evidence to show that a great deal of work was done and much material furnished, and it is possible from the testimony to state, in general terms, the character and extent of libellant's services with sufficient fullness to enable persons familiar with work of that kind to estimate its value. A hypothetical question which recited the facts thus proved elicited from a witness called by the claimant an estimate of $2,200. No similar question was put to any of libellant's witnesses, and none of them who gave any estimate of a lump sum for the work had sufficient personal knowledge of what was done to testify to the value, except in reply to such a question. Presumably, the commissioner reached the conclusion that the libellant had proved his bill of particulars (except as to items aggregating $13.75) by competent evidence, but we fail to find such proof in the record.
The bookkeeper who made up the bill had but little personal knowledge of the correctness of any of the items. He made up the account from memoranda furnished to him, by foremen or other employés of libellant. When he had transcribed the several items from the memoranda to the account, he destroyed the memoranda, with some few exceptions. Under the rule laid down in Mayor, etc., of New York City v. Second Ave. R. Co., 102 N. Y. 572, 7 N. E. 905, it was competent to prove the charges by the testimony of the bookkeeper, who transcribed them from the temporary memoranda (which were substantially slate entries) supplemented by testimony of the persons who made the memoranda that such memoranda, to their own knowledge, were correct. The bill contains items of charge under 38 different dates. The character of these items is well illustrated by the charges under date of June 29th.
A large part of these charges is for labor at rates per hour which vary with the character of the work done, or of the machine or tool used by the workman. Part of this work was done in the shop, and part on the yacht. The time of the men working on the yacht was kept by a foreman, who testified that the memoranda he made of the time of the men under him was correct to his personal knowledge. As to such items on the bill, therefore, as represent the time of the men on the yacht there was competent evidence sustaining them, before the commissioner, for the bookkeeper swears that he correctly transferred the items from the memoranda; and, although the master of the yacht testified that some of the men were frequently idle during working hours, the finding of the master on conflicting evidence would not be disturbed.
In the case of work done in the shop, the bookkeeper made up his account from memoranda furnished to him by the workmen, which he assumed to be correct, as he had only general knowledge as to the fact that they were working. These memoranda were destroyed, but as they were of the nature of slate entries that circumstance is not material, when the person transcribing them testifies to the accuracy of his transcription, and the persons furnishing them to their correctness. Each workman returned, on these shop memoranda, not only the hours he worked, but also the materials he used. form of memorandum is as follows:
The difficulty with the proof on this branch of the case is that no one testifies of his own knowledge to the accuracy of these shop memoranda. Since the originals are destroyed, it would probably not be possible to produce specific evidence to the accuracy of each separate memorandum, but libellant should at least have called the workmen who made the memoranda to testify that all memoranda made by them and turned in to the bookkeeper during the period in question correctly set forth the hours they worked and the materials they used. Without such proof, the charges in the bill are supported only by hearsay evidence. Besides the charges for material used by a workman who returned his time on a shop memorandum, other material was sent direct to the yacht, either from the shop or from some outside place where it was bought. Except in a few instances, however, there is no competent evidence of the delivery of such material.
Upon the argument it was intimated that the court would make an independent examination of the entire bill in connection with the evidence, and determine what items are sustained by competent proof. It has become apparent, however, that without further evidence such a disposition of the case would work injustice to the libellant, who apparently, being misled by the commissioner's acceptance of his proof as sufficient to cover his whole charge, has failed to identify those items on the bill as to which the proof is legally sufficient. For example: The charge above quoted, "352 hours mach. & rigger on board," is evidently for work done at the yacht; the charge, "5 hours lathe check valves," is presumably for work at the shop, where the lathe is; but, as to such charges as "17 hours fit. air pumps," we cannot tell whether the work was done at the shop or on the yacht, and therefore whether it stands unproved or proved upon the record.
The decree of the district court is therefore reversed, with costs of this court to appellant, and the cause remitted to the district court, with instructions to refer it back to the commissioner to take such further evidence as may be offered, and report either the fair and reasonable value of the work and material as a whole or what items are proved, and the fair and reasonable value of such items.
PEARSOL et al. v. MAXWELL et al.
(Circuit Court, W. D. Pennsylvania. March 2, 1895.)
CONSTRUCTION OF WILL-ESTATES TAIL-BARRING REMAINDER.
A testator devised land to E., "to have and to hold the same to the said E. and the heirs of her body, provided, however, that the children of the said E. do not marry or be given in marriage to any of the children of my uncle J., or to any of his grandchildren, or great-grandchildren, or other lineal descendants of the said J.; but should any of the children of the said E. marry any of the descendants of the said J., the share of my estate of he, she, or they so marrying as aforesaid shall go to and become vested in the other child or children of the said E., share and share alike"; and the testator charged E. with the payment of a legacy of $2,000: Held, that E. took an estate tail, which became converted into a fee simple absolute by her deed executed agreeably to the Pennsylvania statute for the barring of estates tail.
This was an action of ejectment brought by William S. Pearsol and others against George C. Maxwell and others. In pursuance of a written stipulation, the case was tried by court without the intervention of a jury. The following facts were found by the court: (1) This action of ejectment is for the recovery of the undivided one-half part of a tract of land situate in Luzerne township, Fayette county, Pennsylvania. (2) The plaintiffs and the defendants respectively claim title to said land under the will of Samuel N. Crawford, who died in the year 1853, seised in fee of said land, having first made his last will, dated May 15, 1853, which will was duly probated after his death, namely, on July 13, 1853, and is recorded in said county of Fayette in Will Book No. 3, page 86. Said will contains the following clauses: "Item. I give and devise to my cousin Edith Pearsol, daughter of Benjamin Sharpless, all that portion of the farm upon which I now reside, and bounded and described as follows, viz.: Beginning on the Monongahela river where my lands adjoin those of Joseph Crawford's and said river; thence north 74°, west 30 perches; south 83°, east 75 perches, to lands of William Crawford; thence south 14°, east 207 perches; thence north 8934°, east 134 perches, to a post; thence along the lands of Joseph Crawford north 14°, west, 205 perches, to the place of beginning, on the Monongahela river aforesaid,-to have and to hold the same to the said Edith Pearsol and the heirs of her body, provided, however, that the children of the said Edith Pearsol do not marry or be given in marriage to any of the children of my uncle Joseph Crawford, or to any of his grandchildren or great-grandchildren, or to any other lineal descendant of the said Joseph Crawford; but should any of the children of the said Edith Pearsol marry any of the descendants of the said Joseph Crawford, the share of my estate of he, she, or they so marrying as aforesaid shall go to and become vested in the other child or children of the said Edith, share and share alike. The part of my farm above devised to Edith Pearsol contains one hundred and seventy-five acres by a survey thereof made by James Moffit. It is my will and desire and I do hereby bequeath to the said Edith Pearsol all my household and kitchen furniture, and that she shall pay to my cousin Benjamin W. Crawford, Sr., the sum of two thousand dollars within five years after my decease, without interest on the same." Said will (prout) is made part of this finding. (3) By deed dated June 10, 1858, William Pearsol and Edith, his wife (the above-named devisee), conveyed the said tract of land to Christoplier Cox, his heirs and assigns; the said grantors declaring in said deed that it was their intention by said deed forever to debar any estate tail in possession, reversion, or remainder, which the said Edith had in the said land, which deed was executed, acknowledged, and recorded agreeably to the provisions of the act of assembly of January 16, 1799, for the barring of estates tail. (4) The defendants (or some of them) have succeeded to and are invested with the v.68F.no.5-33
title of Christopher Cox by virtue of sundry deeds recited in their abstract of title (prout). (5) Edith Pearsol died in April, 1893. Her husband died previously. (6) The land which is described in the writ of ejectment is the same devised in and by the above-quoted provisions of the will of Samuel N. Crawford. (7) The plaintiff William S. Pearsol is a son of Edith Pearsol, and the other plaintiffs are her grandchildren, being children of deceased children of Edith. If entitled to recover at all in this action, the plaintiffs would be entitled to recover the undivided one-half part of said land. (8) At the date of the will of Samuel N. Crawford and at the time of his death, seven children-three sons and four daughters-of Edith Pearsol were living. There were none after born. (9) None of the children of Edith Pearsol married in violation of the above-quoted provisions of the will of Samuel N. Crawford.
Edward Campbell and J. R. Ritchey, for plaintiffs.
ACHESON, Circuit Judge. This case turns upon the question as to what estate Edith Pearsol took, under the will of Samuel N. Crawford, in the land in controversy. The plaintiffs maintain that the devise to Edith was for her life only, and that the remainder in fee was devised to her children. Obviously, however, this will contains no express devise to Edith's children. If they took anything, it was inferentially, and not by the positive terms which the testator employed to declare his intention. His disposing language is: "I give and devise to my cousin Edith Pearsol all that portion of the farm upon which I now reside, to have and to hold the same to the said Edith Pearsol and the heirs of her body." These are the aptest words for the creation of an estate tail. Standing alone, they would admit of no other interpretation. When, after the devise of the land to Edith, the testator subjoined the words, "to have and to hold the same to the said Edith Pearsol and the heirs of her body," it is difficult to conceive how he could have had in view any other purpose than thereby to define the quantum of estate which she was to take. What ground is there for holding that the words "heirs of her body" were used by him in the sense of children? The presumption, of course, is that the words were employed in their technical meaning. Ihrie's Estate, 162 Pa. St. 369, 29 Atl. 750. Now, "heirs of the body" are strictly and technically words of limitation. "Nothing can convert them into words of purchase but a clearly-expressed intention of the testator to use them in an abnormal sense." Linn v. Alexander, 59 Pa. St. 43, 46. Speaking of technical words used in wills, the supreme court of Pennsylvania, in Stone v. McMullen, 10 Wkly. Notes Cas. 541, 543, declared that the cases "show that the intent not to use the words in their legal sense must be unequivocal, and so plain that no one can misunderstand it." Certainly, no such clear intent is here discernible. It is to be noted that there are no words whatever in this will to restrict Edith's estate to her lifetime. Had that really been the intention of the testator, he surely would have so expressed himself. knew very well how to do this; for, making provision in favor of Sarah Wellington, he provided that "she is to have a life estate in the first room in my mansion." Again, the fact that the testator imposed on Edith the payment of $2,000 to Benjamin W. Crawford, Sr., raises a presumption that the testator intended to give her an