Argued before BROWN, C. J., and FRAZER, WALLING, SIMPSON, and KEPHART, JJ. Frank J. Thomas, of Meadville, for appel lant. Albert L. Thomas, of Meadville, for appel lee. SIMPSON, J. In her statement of claim, plaintiff alleges that on or about May 26, 1904, she entered into an agreement with Isaac McGill by which, in consideration of services to be rendered to him during the balance of his life, he agreed to will her all his property; that she faithfully performed those services until April, 1914, when, on account of the arduous nature thereof, her health became impaired, and she was sent to the state hospital at North Warren, Pa.; that, on her return therefrom in the fall of 1915, he requested her to come back and continue rendering the services agreed upon, saying her absence in the hospital would in no way affect the contract he had made with her, and he would will all his property to her as agreed upon; that because thereof she did return, and continued to perform those services until his death on February 4, 1918, but he failed to carry out his part of the contract, and therefore she brought the present suit against the administrator of his estate. At the trial the court below charged, at the request of defendant: That "before the plaintiff is entitled to recover in this case, she must satisfy the jury by clear, positive, direct, unambiguous, and credible evidence that a contract was entered into, the terms of which are certain and explicit, and that the services were performed under such contract." That her absence in the hospital was a breach of the contract, "and neither Isaac McGill nor his estate was thereafter bound thereby, unless he thereafter waived such a breach of contract or entered into a new one." The jury rendered a verdict for plaintiff, upon which judgment was entered, and this appeal taken. There are six assignments of error. The first four relate to the refusal of defendant's motion for judgment non obstante veredicto, to the entry of judgment on the verdict, to the refusal to direct a verdict for defendant because "there is not sufficient evidence in this case to show a breach of the contract," and because "there is no proper or sufficient evidence from which the jury can find an amount due plaintiff." The fifth assigns error in sustaining an objection to the following question: "Did you have a conversation with Ida shortly after the death of your brother Isaac McGill with reference to what she knew about his business?" The answer was: "She said she did not know anything about his business, that she didn't-" when an objection was interposed and sustained because the evidence was in competent and immaterial. [1] We agree with that ruling. If plaintiff performed the services agreed upon, it made no difference what she knew or did not know about decedent's business. Moreover, the answer was directly and fully responsive to the question, and anything additional would not have been responsive to it. The last assignment has no exception to support it, and will be disregarded. [2] As the first four assignments must all be dismissed unless defendant was entitled to binding instructions in his favor, the evidence favorable to plaintiff and every reasonable inference therefrom must be taken as true, and every unfavorable allegation and inference must be rejected. Viewed in this aspect, the record discloses the following facts: Plaintiff, who was a niece of decedent, had been employed as housekeeper in her grandfather's house for a period of 12 or 14 years, and until his death on May 26, 1904. During that time Isaac McGill, whose administrator is defendant in this case, had been living there with his said father, and was acquainted with the character of services performed by plaintiff. On his father's death, Isaac McGill inherited the property, and requested plaintiff to continue taking charge of the house. At first she refused to do so, but upon his saying to her, "if she went back he would leave her everything he had, his farm and all his personal property, at his death if she went back and kept house with him," she thereupon went back in June, 1904, and continued to perform the services agreed upon until her health broke down and she was taken to the state hospital at North Warren, Pa. On her return home therefromhe called to see her and said "if she would go back he would live up to his contract and she should have everything he had at his death." Relying thereon, she did go back and performed the services agreed upon until his death on February 4, 1918. The value of her services was variously estimated at from $1 a day to $9 a week, and the period she lived with him after the first making of the contract, excluding the 15 months or thereabouts during which she was away on account of illness, covered a period of 645 weeks. The verdict was in her favor for $3,277. In the argument in this court defendant raises three questions: (1) Was the alleged contract sufficiently proven? and under this head the only noint made is: Was there suf ficient evidence of her acceptance of the con- | harmless, and hence would not justify a retract? (2) Was there a breach of the con- versal, for, under such a will as decedent tract shown, in view of the fact that there agreed to make, plaintiff would have received was no evidence decedent did not make a will his entire estate, and by this verdict she canas plaintiff alleged he agreed to do? And (3) not possibly get more, and may get much less. was there "sufficient evidence from which the The judgment is affirmed. jury can find an amount due plaintiff” ?— which may be dismissed without further consideration, in view of the testimony above set forth as to the time covered by and the value of the services rendered. (265 Pa. 185) In re REINHEIMER'S ESTATE. Appeal of LORD. (Supreme Court of Pennsylvania. May 21, 1919.) 493-DESIGNATION OF DEVISEE. Where a devise is to "the party who may be farming my farm and taking care of me at the time of my death," the person who identifies himself as a lessee actually caring for testator at his death is entitled to the land, and the court cannot consider, in passing on his claim, the degree of efficiency of his farming and the character of attention to testator's wants. [3, 4] It was not necessary to prove, as defendant seems to think, that plaintiff should formally write or state her acceptance of defendant's offer. She accepted it in a far more certain way, by performing services under it for many years. We said in Graham v. 1. WILLS Dempsey, 169 Pa. 460, 462, 32 Atl. 408, "That actions speak louder than words is sound law as well as proverbial wisdom," and as directly relevant to the present case (Patton's Executor v. Hassinger, 69 Pa. 311, 314). "There is nothing more significant of the acceptance of a provision than a compliance with it, especially where notice of acceptance is not required," and (Hoffman v. Bloomsburg, etc., R. R. Co., 157 Pa. 174, 194, 27 Atl. 564, 566, quoting from Hare on Contracts, 313), "The fulfillment of that which the promisor stipulates for" is "deemed the best and sufficient proof of assent." There was therefore ample proof 3. WILLS 486-EXTRINSIC EVIDENCE TO of acceptance, even aside from the evidence of the witnesses who said, when referring to the original contract, "she went back under those conditions," and when referring to the time of her return from the hospital, "he said if she would go back he would live up to his contract." 2. WILLS 493-DESIGNATION OF DEVISEE. If a party appears who fills the description of the devisee, the court cannot write terms into the will that will restrict its ordinary appli cation. SHOW INTENT. While extrinsic evidence may be admitted to aid or explain a will, it must always relate to that which is embodied in the will. 493-DESIGNATION OF DEVISEE. [5-7] Nor does the fact that the plaintiff failed to prove decedent did not make a will leaving his entire estate to her present any greater difficulty. It was admitted the register of wills of the county in which decedent was domiciled had granted to defendant letters of general administration on decedent's Where a devise is to the person "farming estate, and we have said this "being a judi- my farm and taking care of me at the time of cial" act "cannot be attacked or avoided in my death," and such person is identified, a codia collateral proceeding." Zeigler v. Storey, cil in harmony with the devise, but naming a 220 Pa. 471, 476, 69 Atl. 894, 17 L. R. A. (N. of the codicil, does not rescind the devise and specific person as farming the farm at the date S.) 878. Moreover, it was the duty of the defeat the claim of the person identified as farmregister before granting the letters to satisfying the farm and taking care of testator at the himself that decedent had left no valid will, and from the presumption of that duty performed prima facie no valid will existed. Kelly v. Creen, 53 Pa. 302; Murphy v. Chase, 103 Pa. 260. Besides, under the facts aforesaid and in view of the impossibility of certainly proving there was no will, and the reasonable possibility of proving it if there was one, the burden of proof of its existence, if one had been alleged in the pleadings, which it was not, was upon defendant who now affirms its possible existence. And finally, even if we assume error in this respect, it was time of his death. Appeal from Orphans' Court, Berks County. Harry A. Lord appeals from a decree dismissing his exceptions to adjudication in the estate of William Reinheimer, deceased. Refor distribution in accordance with opinion. versed, and record remitted, with directions for distribution in accordance with opinion. From the record it appeared that testator after directing the payment of various legacies, disposed of his residuary estate as follows: (108 A.) "Item: As to the rest, residue and remain- [ was not entitled to take under the residuary der of my estate, real, personal and mixed, I clause, hence this appeal. give, devise and bequeath the same to the party or parties, their heirs and assigns forever, who may be farming my farm and taking care of me at the time of my death." By codicil he directs as follows: "Item: I order and direct my herein named executors to sell and dispose of my estate, real, personal and mixed, after my death. "Item: It is further my wish and will that if Samuel Good, now farming my farm and taking care of me, remain and be with me up to and at the time of my death, that he, the said Samuel Good, shall become entitled under my foregoing will to the rest, residue and remainder of my estate as therein expressed." The court awarded the residue of the fund which contained proceeds of real and personal estate to the widow and sons of testator. Exceptions to the adjudication were dismissed. Harry A. Lord appealed. Argued before BROWN, C. J., and FRAZER, WALLING, SIMPSON, and KEPHART, JJ. William Kerper Stevens and George Eves, both of Reading, for appellant. Jefferson Snyder and C. H. Ruhl, both of Reading, for appellees. KEPHART, J. [1-3] Testator devised the residue of his property in the following man ner: "As to the rest, residue and remainder of my estate, real, personal and mixed, I give, devise and bequeath the same to the party or parties, their heirs and assigns forever, who may be farming my farm and taking care of me at the time of my death." The intention of the testator must be found from what appears upon the face of the will; and, while extrinsic evidence may be admitted to aid or explain, it must always relate to that which is embodied in the will. It cannot have the effect of remodeling the will. The controlling principle regarding the admission of such testimony is that it cannot be received as evidence of testator's intention outside of and independent of the writtenwords employed. The court must find its meaning, if there is one, and not under guise of a construction or under general powers of equity to assume to correct or redraft the will, in which the testator has expressed his intentions. See Paige on Wills, p. 537 et seq. In determining what person or thing may properly correspond to a description in a will, either a beneficiary or property, if the evidence shows the existence of such person or property, the will is not ambiguous, and the person so described and identified must be taken as the intended beneficiary. "It is not essentially necessary that a testator, in his will, name the legatee or devisee, in order to give effect to the bequest. It is sufficient if he is so described therein as to be ascertained and identified." Dennis v. Holsapple, 148 Ind. 297, 301, 47 N. E. 631, 632, 46 L. R. A. 168, 62 Am. St. Rep. 526. The testator need only provide the means of ascertaining the object of his bounty, according to the maxim, "Id certum est quod certum reddi potest." If the description distinguish the claimant from every other person, it is enough. Jarman on Wills (6th Ed. by Chas. Sweet, 1901) vol. 1, p. 78. The question may be stated: Was all of claimant's evidence, if believed, sufficient to meet the description in the will? It was not necessary to subject the farming and personal attention to the test of degree of efficiency. Here the testator, Reinheimer, executed a lease to the appellant for his 60-acre farm; "to farm let and lease," the agreement states. The lease was made on the 1st of April, 1916; the testator died February 2, 1917. Lord took possession and, as a prior tenant states, found some timber land and many rocky fields. The first farm year he harvested 25 to 30 tons of hay, 200 bushels of oats, 70 bushels of potatoes, and 175 bushels of corn. He had a large truck garden, attended market three or four times a week, and ran a cider press for the testator, taking up a great deal of his time in the fall of the year. This was the character of his "farming." It may not have been done He When the executor's account was called for adjudication, Harry A. Lord, the appellant, appeared and demanded the residue, as the person who filled the description in the will. He submitted evidence in support of his claim, but the court below, in construing the will with the evidence taken, was impressed with the idea that not only must a designated person be "farming the farm and taking care of" the testator, but the "degree of efficiency" and and the character of "attention to testator's wants" were determining factors in the construction of the clause quoted. In thus measuring the degree, skill, and character of farming and personal attention, the judge sat as a chancellor, distributing the estate under the principles of equitable justice. The judge was not called upon to dispose of testator's prop- scientifically, but it suited the testator. erty. The testator did this by his last will could have removed the tenant had he so and testament. All the court had to do was desired. He made conditions such for the to construe the will, and if a party appeared tenant who immediately preceded Lord that who filled the description, it was not within the man remained with him only three months. the power of the court to write terms into the The evidence was clearly insufficient to suswill that would restrict its ordinary applica- tain the finding that the testator was so weaktion. The court below found the claimant ened he could not have asserted his rights. Neither the attending physician nor his per-item quoted, except as to the name. Good not sonal counsel made such statements, nor did any other witness, directly. The trend of the evidence was to the contrary. The personal attention to be given testator must be judged by his station in life and his accustomed mode of living. The testator, because of his drinking habits, separated from his wife and children, who later entered suit against him, further estranging the family. It is not to be supposed that when he went to live with strangers he did it for the purpose of being reformed. Indeed, it may be surmised that the opposite was his intention. He wanted absolute freedom. However much we, as individuals, may criticize his conduct, it is the testator's will that is being construed, and his personal habits, continued for many years, should not be charged against the claimant who, if anything, merely followed a course laid out by the testator. was no evidence of willful misconduct or neglect on the part of the claimant. But there [4, 5] It has been urged that the words, "farming the farm and taking care of," implied a condition. It must be remembered that all the acts to be done were to be performed during the lifetime of the testator. The clause in the will did not operate until his death. Nothing remained to be done by the legatee, nor was any particular time mentioned in the will when, or how, the farming should be carried on. If a condition, it must be performed satisfactorily to some person, and that person was the testator: the best evidence that he was satisfied is the fact that Lord remained with him up to the time of his death, and took care of him in his small house; those who are now claiming the estate against the will did not come near or offer any attention. Discussing a direction in a will that the heirs and legatees should bear a portion of the expenses of a testatrix's maintenance, Chief Justice Shaw, in Colwell et ux. v. Alger, 5 Gray (Mass.) 67, 68, says: "A will can have no operation during the life of the testator; on the contrary, it is supposed to remain unknown, even to the beneficiaries. It would be strange if acts to be done in the lifetime of the testatrix should be made a condition on which a legacy is to have effect at her decease; when the legacy, and even the whole will, may itself be revoked at any time before her decease." Concerning the codicil of the will, the court below was clearly right in its construction; it did not change or revoke the residuary clause above quoted, and depended for its effect on Good being on the farm, "farming my farm and taking care of me at the time of my death." Good was not on the farm, and did not take care of him. Only in that event would this clause become operative. The codicil was in entire harmony with the filling the terms of the codicil, it fell, of course, but it did not effect, by implication, a rescission of the clause in the will. See Sigel's Estate (No. 1) 213 Pa. 14, 16, 62 Atl. 175, 1 L. R. A. (N. S.) 397, 110 Am. St. Rep. 515, and cases there cited. Lord was entitled to take as residuary legatee. The decree of the court below is reversed, the record is remitted, with direction that distribution be made in accordance with this opinion. Appellee for costs. (265 Pa. 111) In re BEHRINGER'S ESTATE. (Supreme Court of Pennsylvania. May 21, 1919.) 1. APPEAL AND ERROR 748(1) ASSIGNMENTS OF ERROR NOT QUOTING EXCEPTIONS. An appeal will be quashed where each assignment of error violates the rules of the Supreme Court, the first because it refers to the sustaining of four separate exceptions, and does not quote any of them, and where none of the others violate the rules because they allege them are quoted in the other assignments, and error of the court below in not doing certain things, without setting forth how or in what way it was asked to do them. 2. APPEAL AND ERROR 150(3)-RIGHT OF DRY TRUSTEE TO APPEAL. A dry trustee required to convey on demand has no standing to appeal from a decree of the court below in a dispute between the cestui que trustent as to the disposition of the estate. 3. TRUSTS 189, 1932 DISPOSITION OF PROPERTY BY DRY TRUSTEE. A dry trustee has only a duty to convey property to beneficiaries, and has no discretion as to its sale and no power of sale under Revised Price Act June 7, 1917, § 2, cl. "d" and the court cannot thereunder order a sale because the cestui que trustent fail to agree in regard thereto, nor does any other provision of the act authorize the trustee of a passive trust to invoke the jurisdiction of court. 4. TRUSTS 194, 200(1)-PARTITION BY BEN EFICIARIES. Where a trustee has only the duty to convey property and no discretion as to a sale, and the trust is passive, the remedy of the cestui que trustent and parties interested is by proceedings in partition, and the trustee and parties interested may be required to transfer legal title to allottee or purchaser in the same proceeding, if in equity, and in another proceeding if it is not. Appeal from Orphans' Court, Erie County. Petition by Mary B. Mehl, trustee for sale of land of estate of Elizabeth Behringer, de (108 A.) ceased, in which a public sale was directed, [ Elizabeth Behringer, wife of said George J. and was made to M. A. Krug, to the con- Behringer, and we hereby further covenant and firmation of which Edward J. Behringer and agree for and in consideration of the sum of another excepted, and in which the pur- one dollar to us in hand paid by the said Elizachaser petitioned for relief from his bid. beth Behringer, the receipt whereof we do hereFrom a decree sustaining the exceptions, the real estate described in said deed unto any by acknowledge, that we shall and will convey setting aside the sale and relieving the pur-person or persons named and designated by the chaser, petitioner appeals. Appeal quashed. Errors were assigned as follows: (1) The learned court erred in entering the following decree: "And now, May 6, 1918, it is ordered that the exceptions to the confirmation of the sale of the real estate in question be sustained, and the said sale is set aside, and the rule to show cause why the purchaser, M. A. Krug, should not be relieved from the payment of his bid is made absolute." said Elizabeth Behringer her heirs and assigns, upon request or requests made to us in writing." That said Elizabeth Behringer died without making any disposition of said property, "by reason whereof it descended to and vested in" her five children, "all of whom are of full age and sui juris." That three of said children desire a sale of the (2) The learned court erred in not dismiss-property and join in the petition, but the ing the exceptions of Edward J. Behringer and Charles W. Behringer. (3) The learned court erred in not dismissing the petition of M. A. Krug. (4) The learned court erred in not confirming absolutely the sale of the real estate by Mary B. Mehl, trustee, to M. A. Krug. Argued before BROWN, C. J., and FRA- other two "have refused to act, and do unreasonably withhold their consent to a sale being made of said premises." The court below thereupon issued a citation to the other two children, and, they not appearing at the return day thereof, directed a public sale of the property, a sale was had, the nonconsenting children filed exceptions to its confirmation, alleging the court had no jurisdiction to order the sale, Charles A. Mertens and Monroe Echols, and the purchaser filed a petition also alboth of Erie, for appellants. leging a lack of jurisdiction, and praying relief from his bid. The court below, fol SIMPSON, J. [1, 2] The appeal in this case will have to be quashed. Each assign-65 Pittsburgh Leg. Journal, 778, concluded ment of error violates the rules of this court, the first because it refers to the sustaining of four separate exceptions and does not quote any of them, nor are any of them quoted in the other assignments, and the others because they allege errors of the court below in not doing certain things, without setting forth how or in what way it was asked to do them. Moreover, appellant has no interest in the property the subject of this controversy. She is but a dry trustee thereof, required to convey it upon demand-in effect merely a stakeholder, and therefore not entitled to appeal. Crawford v. Shriver, 139 Pa. 239, 21 Atl. 518; Real Estate Trust Co. v. Pennsylvania Sugar Refining Co., 239 Pa. 456, 86 Atl. 1074. We less regretfully reach the conclusion stated, inasmuch as in no event could the relief sought be granted. [3] Appellant presented to the court below a petition under sections 1 and 2 of the Revised Price Act of June 7, 1917 (P. L. 388), averring: That on January 30, 1899, she and her husband, now deceased, executed a declaration of trust as follows: "Know all men by these presents that we the undersigned, John P. Mehl and Mary B. Mehl, his wife, do hereby certify that the land conveyed by George J. Behringer and Elizabeth Behringer, his wife, to us by their deed dated January 30, 1899, we hold in trust for said lowing the reasoning in Garrison's Estate, that the court of common pleas alone had that the court of common pleas alone had tions and set the sale aside. Appellant, bejurisdiction, and hence sustained the exceping of opinion that the jurisdiction of the orphans' court was properly invoked, because, as she alleges, the title to the property was acquired "partly by deeds and partly by descent," prosecuted this appeal. With that difference. of opinion we are not concerned, for in our judgment neither court had jurisdiction to grant the relief sought. The petition was evidently filed under section 2, "d" of the act, which provides that "The several courts aforesaid shall exercise is a power of sale; and * Appellant, however, has no "power of sale," but only an obligation to "convey the real estate described upon request or requests made in writing." She has no discretion in the matter; her duty is to obey the wish or whim of the real owners, whether she believes it to be wise or otherwise, provided only it is expressed "in writing." Clearly, therefore, this is not a matter within the contemplation of that provision of the act. |