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support. As preliminary to the formal answer of appellant's point, the learned trial judge used this significant language:

"In addition to the matters I have referred to, in addition to the defendant's denial of his guilt, you have the fact that a large number of witnesses have been called who testified that prior to this alleged misconduct, prior to the charge being made against the defendant, his reputation for chastity, for morality, was good, and we have been requested to charge you on a number of points bearing on the effect of good reputation, and I am going to in part, indeed charge, say what I have to say on the legal significance or proof of good reputation by affirming this point presented by the defense."

been written by the defendant, was so admitted by him. It follows that the grand jury's only error consisted in its considering a genuine, material, and entirely proper piece of documentary evidence without it having first been duly authenticated. No material wrong, no prejudice whatever, was suffered by defendant, and no ground for objection to the finding of the bill is presented."

We concur in the view here taken by the court.

In our discussion of the case we have given such consideration to the assignments of error as each seemed to require. Whether error as each seemed to require. Whether specifically mentioned or not, they have their place in the discussion and have been considered and weighed. All are dismissed, and the judgment of the Superior Court is af

firmed.

It may be that the facts and circumstances of the case would have warranted a greater emphasis on this branch of the defense, not so far as the law was involved, but in bringing to the minds of the jury the true value of the kind of testimony on which the defendant relied to establish his good character; but certainly we cannot say that the defendant was prejudiced by the court's fail (Supreme Court of Pennsylvania. June 21,

(265 Pa. 257)

COMPTON et al. v. HOFFMAN.

1919.)

ure to enlarge upon it beyond what he did,
or that any such failure constituted error 1. PRINCIPAL AND AGENT
in law.

[2] An earlier indictment against the defendant for the same offense as that for which he was here convicted had been presented, which for some reason had been ignored. The district attorney presented the petition to the court, and, upon rule issued upon it, obtained an order from the court directing that the indictment should be sent before the next grand jury, which was accordingly done, and a true bill found, upon which defendant was tried and convicted. Defendant moved to quash the later bill on the ground that there had been no new information made, and that the later bill was a district attorney's bill. The court overruled the motion, and this action of the court is assigned as error. A sufficient authority for the court's action in this regard is found in Rowand v. Com., 82 Pa. 405, and further comment is unnecessary. The court exercised discretionary power in the matter, and its action is not reviewable except for manifest abuse of its discretion.

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[3] A motion for a new trial followed upon the verdict, and in support of it evidence was offered to show that in the hearing before the grand jury a letter purporting to have been written by the defendant, unsupported, however, by any proof, was laid before the jury and considered by it. The court's refusal to grant a new trial is the subject of an additional assignment. In his opinion overruling the motion the learned judge says with respect to this matter:

"The evidence before us is conclusive that this same letter was introduced at the trial before the petit jury, when it was duly proved to have

4-EVIDENCE

NOT SHOWING INCAPACITY OF MAKER OF
POWER OF ATTORNEY.

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In suit to have set aside deeds made by defendant as attorney in fact for a decedent, under whom plaintiffs claimed on the ground that decedent, because of liquor and drug habits, was mentally incompetent to execute after to ratify the deeds executed by defendant the power of attorney to defendant, or therepursuant thereto, evidence held not to show that decedent was mentally incompetent at the time of executing the power of attorney and ratifying conveyances thereunder.

2. PRINCIPAL AND AGENT 4—MENTAL IN

CAPACITY WHEN EXECUTING POWER OF AT-
TORNEY NOT SHOWN BY GENERALLY DIS-
SOLUTE HABITS.

Without proof of decedent's mental incapacity when executing a power of attorney to execute deeds, it is not sufficient to show generally dissolute habits and frequent resort to use of drugs and liquors, as, while such proof materially aids in ascertaining the cause of tablish its existence without other evidence of mental unsoundness, it is insufficient to esincapacity at the time.

3. WILLS 166(1)-EVIDENCE INSUFFICIENT

TO SHOW UNDUE INFLUENCE.

Evidence held not to show undue influence in procuring will.

4. PRINCIPAL AND AGENT 78(4)-Burden

OF PROOF TO SHOW ABSENCE OF FRAUD IN
EXECUTION OF POWER OF ATTORNEY NOT ON

THE ATTORNEY.

Conceding that defendant's stepbrother occupied a confidential relation towards his decedent, such facts would not throw on defendant the burden of showing that a transaction, whereby, under a power of attorney to execute deeds given by decedent, defendant conveyed

(108 A.)

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received therefrom; the allegation being that the conveyances made by defendant to Nancy L. Hoffman was part of a fraudulent scheme to obtain possession of the property of Ludlow, whose mental and physical condition was such as to render him incapable of understanding the nature of the transaction. The court below dismissed the bill, and plaintiffs have appealed.

Andrew H. Ludlow, Jr., was the only son of Andrew Ludlow, Sr., and his wife Nancy, who subsequently married Otis J. Hoffman. Defendant is the son of Otis J. Hoffman by an earlier marriage, and a stepbrother to Andrew Ludlow, Jr. They lived together at Warren, Pa., and Ludlow, Jr., who inherited considerable property from his deceased father, attended public and private schools and at the age of 18 entered college, where he remained for a short time only. He became addicted to the use of liquor and drugs, and traveled considerably. For several years he was engaged in the printing business, but subsequently

formed a partnership with Hoffman, from which he retired a few years later. In 1883, at 23 years of age, he gave Hoffman a general power of attorney to sell or lease real estate owned by him and to transact business for him generally. Pursuant to this power, Hoffman at various times in Ludlow's absence, conveyed property belonging to the latter. On November 10, 1893, Hoffman executed deeds, transferring Ludlow's remaining property to the latter's mother, Nancy L. Hoffman, the consideration therefor being the

Appeal from Court of Common Pleas, War- sum of $1 "and other valuable consideraren County.

Bill in equity by William Compton and another against Otis F. Hoffman, individually and as executor and trustee under the will of Nancy L. Hoffman, deceased, for the cancellation of deeds and an accounting. From a decree dismissing the bill, plaintiffs appeal. Affirmed.

Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, WALLING, SIMPSON, and KEPHART, JJ.

Francis Chapman and William E. Chapman, both of Philadelphia, for appellants. W. Pitt Gifford, of Erie, and Wm. E. Rice and Alexander & Clark, all of Warren, for appellee.

FRAZER, J. The bill in this proceeding was filed by collateral heirs of Andrew H. Ludlow, Jr., deceased, against defendant individually and as executor under the will of Nancy L. Hoffman, deceased mother of Ludlow, to set aside conveyances of real estate made by defendant as attorney in fact for Ludlow, and praying that he be declared trustee ex maleficio of the property and be required to account for the rents and profits

tions." At the same time the mother executed a paper reciting the conveyance of the property and stating that—

"In consideration therefor I hereby promise with me as long as I live. I further promise and agree to give my said son Andrew a home and agree to provide him with money from time to time for the purchase of clothes and other necessaries and will support him in a proper and economical manner as becomes a careful and prudent person in his station of life, to the best of my ability and judgment."

Contemporaneously with the above-mentioned transactions, a paper signed by Ludlow referring to the conveyance from Hoffman to Ludlow's mother, stated:

"I hereby approve of said transfer and accept the consideration therefor as sufficient and ample, and hereby release the said O. F. Hoffman from any and all claims or liability for making said sale as same was made at my special request."

The mother performed her agreement until her death, two years later. In her will she provided a home for the members of her family, including Andrew, for their lives, and directed the annual payment of $1,000 to

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

erally dissolute habits, and that he was addicted to the use of drugs and liquor even though their use was of frequent occurrence. Such proof may materially aid in ascertaining the cause of mental unsoundness, but is

sence of other evidence of incapacity at the time in question. Miller v. Oestrich, 157 Pa. 264, 272, 27 Atl. 742; Schusler's Estate, 198 Pa. 81, 47 Atl. 966; Macauley's Estate, 224 Pa. 1, 73 Atl. 181.

Andrew for his life, with power in her trustee [tion occurred, it is not sufficient to show gen"to pay him such additional sums as may be necessary and prudent for his proper care, comfort and support," and on the death of the beneficiaries named, and the survivors of them, the remainder of the property was given to the children of Andrew, with remain-insufficient to establish its existence in abder over in case of default of issue. The amount paid to Andrew by his mother in her lifetime and by defendant thereafter, as executor and trustee under the mother's will until the time of Andrew's death in 1912, a period of 17 years, aggregated to nearly $60,000. The value of the property when conveyed to the mother in 1893 does not clearly appear; the court below, however, found the total sum paid was far in excess of the value of the land, and this finding does not seem to be seriously disputed. Oil was subsequently found on the property, and a large revenue derived therefrom. During the 21 years elapsing from the date of the deed to the death of Andrew Ludlow, the transaction was not questioned by him.

[1, 2] The facts above recited are not in dispute. Plaintiffs rely, however, upon the allegation that Andrew Ludlow, Jr., was mentally incompetent to execute the power of attorney given to Hoffman in 1883, or to ratify the deeds executed by Hoffman to Ludlow's mother in 1893, and further that the will of Nancy Hoffman was procured by undue influence exercised by defendant as part of a general scheme to secure possession of Ludlow's property. The evidence relied upon to establish mental incompetency is the testimony of a number of witnesses to the effect that Ludlow led a dissipated and immoral life and was the victim of excessive use of liquor and drugs, rendering him physically and mentally incapable of attending to his business affairs and of understanding the nature of the papers he executed. The testimony shows he had been in a sanitarium on different occasions, and that he used liquor, opium, and morphine to excess. There is, however, a total absence of evidence that he was under the influence of either liquor or drugs at the time he executed the power of attorney and ratified the conveyance of the property to his mother, nor is it a reasonable inference from the evidence that his mental condition was such during the entire period of 19 years from the date of the ratification to the date of his death as to make him incapable of disaffirming his act, if not a voluntary one. On the contrary, during this entire time he accepted the consideration for the conveyance in an amount largely in excess of the value of the property at the time of the conveyance. In the meantime, previous to executing the power of attorney, he transacted business and executed deeds disposing of various pieces of real estate belonging to him. In absence of proof of want of mental

[3] The evidence offered to show undue influence exerted by defendant also falls far short of the required standard of proof. The circumstances leading up to the execution of the conveyance indicate the act was the natural and reasonable result of the dissolute and spendthrift habits of Ludlow, and a wise protection taken voluntarily by him to secure his estate from being squandered. It tends to show a recognition of his weakness and the exercise of good business judgment on his part. The testimony of defendant, called as a witness on behalf of plaintiffs, is that he wrote the original power of attorney at the request of both Andrew Ludlow and his mother, that deeds might be executed in Andrew's absence, it being the latter's habit at that time to travel about the country and return home only at intervals. testified, and in this respect he is uncontradicted, that the deed conveying the property to Mrs. Hoffman in 1893 was executed at the express request of Andrew Ludlow, and upon the witness objecting to sign deeds when Andrew was present and could have signed for himself, the latter stating he had been threatened by a breach of promise suit, and for this reason wanted all his property conveyed to his mother.

Hoffman also

[4, 5] Conceding, for the purpose of argument, the contention of plaintiff that Hoffman occupied a confidential relation toward Ludlow, for whom he had acted in the capacity of attorney on different occasions, this fact does not, under the particular circumstances, throw upon defendant the burden of showing the transaction was free from fraud. While this rule might be applied had defendant benefited by the conveyance of the property, it appears no benefit whatever was received by him, nor did he receive any part of the consideration, but merely acted pursuant to the authority expressly given him under his power of attorney. Ludlow's mother, rather than defendant, received the benefits, if any accrued from the conveyance of the land; she, however, fully paid an adequate consideration for the transfer. Business dealings between parents and children are not prima facie to be considered fraudulent, and those who attack such transactions assume the burden of furnishing clear proof of fraud. Reehling v. Byers, 94

(108 A.)

Atl. 264. Since the consideration was adequate even as between strangers, no presumption of fraud would arise.

Appellants contend further that the benefit defendant received under the will of his stepmother was part of the general scheme to

(265 Pa. 222)

VALLEY RYS. v. BOROUGH OF ME-
CHANICSBURG.

(Supreme Court of Pennsylvania. June 21, 1919.)

defraud Ludlow. We find absolutely no 1. STREET RAILROADS 24(3)—MUNICIPALITY

evidence to support this allegation. The evidence as to the making of the will is uncontradicted, and shows defendant had no part in its preparation, and was without knowledge of its existence until after Mrs. Hoffman's death. The will was drawn at her request and the dictation of the latter's attorney, now president judge of Warren county, who retained it in his possession until her death. The provisions in the will were natural ones, and took care of every member of the family, especially of Andrew Ludlow, whose children were made the residuary legatees. It also provided for carrying out the agreement for the support of Ludlow during his lifetime, a provision fully performed by defendant as executor and trustee. Certainly nothing appears from this state of affairs that can be construed as evidence of improper influence exerted upon the mind of the testatrix.

MAY GIVE CONSENT TO OCCUPY STREETS UPON
ITS OWN TERMS.

A street railway company cannot occupy the streets of a city or borough without municipal consent, in view of Const. art. 17, § 9, and the municipality may give such consent upon any terms it sees fit.

2. STREET RAILROADS 24(3)-CONDITIONS

SUBSEQUENT TO RIGHT TO OCCUPY STREETS
MUST BE REASONABLE.

Where the consent of a municipality to a street railway company to occupy the streets is granted upon conditions precedent, the company's compliance therewith is essential to the validity of the grant, but if it relates to conditions subsequent, such conditions must be reasonable and within the power of the company to perform.

3. STREET RAILROADS 24(3)-COURTS HAVE JURISDICTION TO AVOID UNREASONABLE CONDITIONS FOR OCCUPANCY OF STREETS.

Courts have jurisdiction to declare any mu

[6, 7] A number of the assignments of error-there are 78 in all-complain of the re-nicipal action in regard to conditions imposed

tion of streets void, where clearly arbitrary or upon a street railway company for the occupaoppressive.

4. STREET RAILROADS 24(4)—EXERCISE OF

POWER OF MUNICIPALITY AS TO RATES FOR
OCCUPANCY OF STREETS MUST BE REASONA-

BLE.

occupancy of streets by a street railroad comAlthough power to readjust rates for the pany is expressly vested in a borough council, where it relates to a condition subsequent, it must be reasonably exercised, so as not to be oppressive or confiscatory.

fusal of the court below to admit evidence as to the habits of Ludlow subsequent to the making of the deed. These might be dismissed with the remark that they are not included in the statement of questions involved. McClintock & I. v. Aetna Explosives Co., 260 Pa. 191, 103 Atl. 622, Ann. Cas. 1918E, 1078. However, as there was no sufficient proof of mental impairment, either at the time the power of attorney was executed, or at the time the deed was ratified, the mental condition and habits of Ludlow at a subsequent time are immaterial. The same criticism applies to the complaint made of the exclusion of the evidence of declarations made by Andrew Ludlow concerning the The mere fact that a municipality has raisuse of liquor and narcotics, and with re-ed the annual charge against a street railway spect to the refusal of the court to permit a company for the privilege of occupying the witness to give her opinion as to whether streets from $100 to $1,200 does not of itself Andrew Ludlow was mentally capable of show such increase to be oppressive or confiscatransacting business, this evidence, had it tory. been received, would be insufficient, in view

of the admitted facts in the case, to change
the result, and, consequently, its exclusion, if
erroneous, was harmless
harmless error, and not
ground for reversal. Irwin v. Trego, 22 Pa.
368; Galbraith v. Zimmerman, 100 Pa. 374;
Ziegler v. Handrick, 106 Pa. 87.

[8] The findings of the court below are amply supported by the testimony, and, as has been frequently stated, in such case we will not reverse. Anthracite Lumber Co. v. Lucas, 249 Pa. 517, 95 Atl. 80.

The decree is affirmed, at costs of appellants.

5. STREET RAILROADS 24(4)-INCREASE OF ANNUAL CHARGE FOR OCCUPANCY OF STREETS HELD NOT CONFISCATORY.

6. STREET RAILROADS 24(4)-INCREASE OF

CHARGE FOR OCCUPANCY OF STREET NOT VOID
UNLESS CLEARLY OPPRESSIVE.

The action of a borough in increasing rates chargeable to a street railway company for occupancy of the streets will not be declared void, unless clearly oppressive, nor will the courts interfere except in a case of manifest abuse of discretion.

7. STREET RAILROADS 24(4)-CHARGE PAID

FOR OCCUPANCY OF STREETS NOT A TAX OR LI-
CENSE FEE.

An annual charge to be paid by a street railroad company for the occupancy of the

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

streets of a municipality held not to constitute [ of twelve hundred ($1,200) dollars. This rate a tax or a license fee collectable under the police to commence with the fiscal year beginning March 1, 1911, and continue until the amount of said annual payment shall be readjusted by

power.

Appeal from Court of Common Pleas, Cum- ordinance. That said annual payment of twelve hundred ($1,200) dollars be considered solely berland County. for the rights and privileges granted in OrdiBill by the Valley Railways against Me-nance No. 133, to the Cumberland Valley Electric Passenger Railway Company." chanicsburg Borough, to restrain collection of certain payments fixed by ordinance. A decree dismissing the bill was entered, and plaintiff appeals. Appeal dismissed.

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The plaintiff herein, as successor to the former companies, declined to pay the increased annual amounts as specified in the last-named ordinance. To recover the same the borough brought an action at law, pending which this bill was filed averring, inter

alia, that when the franchise ordinance was granted it was the intention of the parties that the annual charge should be increased, if at all, in proportion to the increase of the earnings and prosperity of the company, of which intent the $1,200 charge was in effect a palpable violation, and praying that Ordinance No. 226 be declared void as unreasonable, oppressive, and confiscatory, and that the borough be restrained from enforcing the same or any penalties that might be incurred by the company from noncompliance therewith. Defendant denied that the ordinance was either unreasonable, oppressive, or confiscatory, or that there was any such intent as above stated when the franchise was granted.

WALLING, J. This bill in equity was filed to restrain the defendant borough from the collection of a certain annual amount fixed by ordinance as the consideration for the occupation of streets. The case was heard with. The case was heard upon bill, answer, replication, and testimony. The Cumberland Valley Electric Passenger Railway Company was chartered in 1893, as a Pennsylvania corporation, and in 1900, by a franchise ordinance (No. 133), the defendant borough granted the company the right to occupy certain designated streets, upon conditions therein named, one of which

was:

"That said railway company, in consideration of the rights and privileges granted by this ordinance, shall pay the borough the sum of fifty ($50.00) dollars per annum, said payment to begin two years after the completion of said railway and to continue for a period of three years, at the expiration of which term said annual amount shall be increased to the sum of one hundred ($100) dollars, which latter annual sum shall continue for the period of five years, at the expiration of which period the council reserves the right to regulate and determine the future annual payments."

The company accepted the ordinance, occupied the streets, and constructed a railway from Mechanicsburg to Carlisle. So far as appears the company and its successors complied with the ordinance, by paying the amounts therein specified, doing the required street paving, etc. In 1911 the town council of the defendant borough duly enacted an ordinance (No. 226), which provides inter alia:

"That the Valley Traction Company, successors to the Cumberland Valley Electric Passenger Railway Company, shall pay annually, on or before the first day of August, unto the bor

The company's railway, when first constructed, was accessible to a population of only 15,000 people while in 1911, by connection with other lines, it reached a population of over 90,000, including the city of Harrisburg. The evidence as to the annual earnings of the railway was incomplete, being only as to a part thereof, and did not justify a definite finding as to the value of the franchise. The trial court reports there is no evidence to justify a finding of an intention of the parties, when the franchise was granted and accepted, that the rate charged should only be increased in proportion to the earnings of the company, also, "that there is no evidence which would justify the finding that the charge of $1,200 per annum by the defendant for the use of the main street by the trolley company is unreasonable or unduly excessive, or that this amount is in effect confiscatory, and, upon the presumption that ordinance No. 226 was reasonable and fair, entered a final decree dismissing the bill, from which plaintiff brought this appeal.

[1] The case was properly decided. A street railway company cannot occupy the streets of a city or borough without municipal consent (section 9, art. 17, Constitution of Pennsylvania), and the municipality may give such consent upon any terms it sees fit to impose (McKeesport v. McKeesport & R. Pass. Ry. Co., 252 Pa. 142, 97 Atl. 184; Al

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