insanity or other cause, may run back as far as you please, if you trace it up to the time of the will. You will have to bring it up to the time of making the will.

Exception noted for defendant.

A. Well, I never supposed she was; never thought she was.

Alfred B. McVey, the administrator of Caroline C. Pritchard, testified, on behalf of defendant, that on the 28th of January, 1896, he went to Caroline C. Pritchard's house, pursuant to a message he received to that effect, and talked with her about making her last will and testament, and that she instructed him as to what was her wish in making a final disposition of her property; that, after receiving said instructions, he went to his home, and dictated the will to his wife, according to the instructions received from Mrs. Pritchard, and on the same evening returned to Mrs. Pritchard's house and read a draft of the will twice carefully over to her, she following and making certain comments and inquiries, and that certain conversation took place at the time between himself and the testatrix; that the testatrix was then in bed and with the assistance of the witness appended her signature to the paper, which signature McVey witnessed, and that Mrs. Pritchard acknowledged the said paper to be her last will and testament in the presence of Smith H. Rogers and Samuel Stewart, the two attesting witnesses.

Mr. Whiteman, on behalf of the defendant, then asked the witness the following question: Q. What, in your opinion, was the condition of Caroline C. Pritchard's mind at the time that she affixed her signature to that paper writing?

Mr. Higgins: Do you confine that to the regular question, based on the facts that he has testified to? If not, I object.

Mr. Whiteman: No; he is an attesting witness.

LORE, C. J.: We think he is an attesting witness.

· A. I consider at that time her mind to be sound in every respect, and capable of making a will. Her mind and memory and understanding were surely clear, and, as I say, capable of transacting business or making a will.

Albert Constable, Jr., a witness, being produced, on behalf of plaintiff, in rebuttal, was sworn on his voir dire, at the request of Mr. Whiteman, and examined as follows:

By Mr. Whiteman: Q. Where do you reside? A. In Elkton, Maryland. Q. What is your business? A. I am a lawyer. Q. You are a member of the Cecil county bar? A. Yes, sir; and practice in the Maryland courts. Q. What relation are you to Albert Constable, one of the counsel for the plaintiff in this case? A. I am his son. Q. Are you associated with him in the practice of law? A. I am in his office. There is no partner

ship. Q. One day last week, your father held a telegram in his hand, during the progress of this trial, and stated to the court that he had received a telegram from you to the effect that a certain witness could not be in attendance, and asked that he be allowed to examine the witness when he should appear here afterwards. Is it true that you sent him such a telegram? A. What is that? Q. He stated that he had received a telegram from you to the effect that a certain witness he desired could not attend that day. Did you send him such a telegram?

Objected to by Mr. Constable, of counsel for plaintiff, as irrelevant.

Mr. Whiteman states that he will connect the facts he is inquiring about directly with the matter of the competency of the witness. The witness is thereupon allowed to answer as follows:

A. I sent my father a telegram last week in connection with this case. Q. In connection with what witness? A. With Mr. Cole. Q. Where does Mr. Cole live? A. He lives at Pleasant Hill. Q. Had you seen him that day? A. Yes, sir; the day I sent the telegram. Q. Where did you see him? A. At North East. Q. Did you go there to see him? A. I went down there that day to ask him if he could come that day to testify. My father was busy here, and asked me to see him and if he could come that day. Q. You have inquired about some other witnesses to try to get them to come here to testify in this trial? A. Yes, sir. Q. Did you not see Joseph Egnor? A. Yes, sir. Q. About coming as a witness? A. No, sir; not about coming here as a witness. He did not turn up here as a witness, and there was something said about his not being able to come, and I went to see him, and I found him cleaning out his barnyard. Q. Did you not conduct the case in Belair? A. I was in the cases the whole time they were in Maryland, but have not been connected with them since they have been out of that state. I am not in the case here. Q. Have you inquired with respect to other witnesses besides Mr. Egnor and Mr. Cole? A. I have inquired with respect to quite a lot of witnesses in the case, and I notified them to be here.

By Mr. Higgins: Q. You have said you are not a counsel in this case, or in any of the litigation in the Delaware court? A. No, sir. There was a motion last summer here in this case, but I have taken no part as counsel in it since the spring of 1898 in Belair. Q. That, as I understand, was the issue over there where Mr. McVey was one of the parties? A. It was the case of John Pritchard, caveator, vs. Alfred B. McVey, as executor. Q. Have you examined any law for Mr. Albert Constable, Sr., in this case? A. I don't think I have looked at any law in connection with the case since we tried the case in Belair in 1898. Q. Why did he send to you about the witnesses? A. He has been up here in this case, busily engaged

in it, and he asked me to go up and notify them that they would have to be here. I have only been here myself one day besides to-day. Q. It has been pretty cold weather, and you are younger than your father? A. Yes, sir. Q. I understood you to say that you were not a partner with your father? A. No, sir; I am not.

Mr. Whiteman, upon the authority of Wallace v. Railroad Co., reported in 8 Houst. 529, 18 Atl. 818, objected to the competency of the witness to testify in the case, on the ground of being associated with the counsel in the case, and interested in the case,stating that he meant no reflection whatever upon the witness, but his objection was purely a legal one.

After argument by the respective counsel, the court rendered the following decision, sustaining the objection:

LORE, C. J.: The Court will not draw any very nice lines where a person is in the office of one of the counsel in the case, and who takes part in the case. We think, under all the circumstances in this case, without reflecting upon anybody at all, that this witness cannot be examined.

Exception noted for plaintiff.

LORE, C. J. (charging the jury): This is an action of ejectment, in which you are to determine the title to certain lands and premises situated in this county, which are set out in the pretensions of the defendant, filed under the consent rule in this cause. John Pritchard, the plaintiff, claims title to the said premises as the son and heir at law of one Caroline C. Pritchard, who died seised in fee simple of the premises in dispute. The defendant, Henry Henderson, claims title to the same premises as devisee under the will of the said Caroline C. Pritchard.

The plaintiff, John Pritchard, claims, not only that he is the son and heir at law of the said Caroline C. Pritchard, but also that the paper writing purporting to be her last will and testament, bearing date January 28, 1896, under which the defendant holds title, is void, because, he alleges, that at the time of the execution thereof the said Caroline C. Pritchard was not of sound, disposing mind and memory, and further be cause she was unduly influenced therein by the said Henry Henderson.

In actions of ejectment, the plaintiff recovers, if at all, upon the strength of his own title, and not upon the weakness of the title of the defendant, if any there be. To recover in this action, the plaintiff, John Pritchard, must prove to the satisfaction of the jury, by a preponderance of the evidence, that he is the legitimate son and heir at law of the said Caroline C. Pritchard. In addition thereto, he must, in like manner, further prove that the alleged will of Caroline C. Pritchard, under which the defendant claims, is void, either by reason of the want of a sound and disposing mind and

memory on the part of the said Caroline C. Pritchard, or because of undue influence exerted upon her at the time of the execution of the said will; inasmuch as the formal execution and proof of the will are admitted by the parties to this suit. It is therefore essential for you to understand what, under the law and decisions of this state, constitutes a sound and disposing mind and memory; and also what amounts to undue influence. The law upon these two points has been carefully summed up in the recent case of Ball v. Kane, 1 Pennewill, 90, 39 Atl. 778, as follows:

"What constitutes a sound and disposing mind and memory in a testator has been very clearly stated in the decisions of our courts. In Chandler v. Ferris, 1 Har. 454, the court say: 'When the testator was capable of exercising thought and judgment and reflection, if he knew what he was about and had memory and judgment,' he had testable capacity. In Duffield v. Morris' Ex'r, 2 Har. 375, the court say: 'A sound mind is one wholly free from delusion, all the intellectual faculties existing in a certain degree of vigor and harmony; the propensities, affections, and passions being under subordination to the will and judgment, the latter being the controlling power, with a just perception of the natural connection or repugnancy of ideas. Weak minds, again, only differ from strong ones in the extent and power of their faculties; but, unless they betray symptoms of a total loss of understanding, or of idiocy, or of delusion, they cannot properly be considered unsound. A perfect capacity is usually tested by this: that the individual talks and discourses rationally and sensibly, and is fully capable of any rational act requiring thought, judgment, and reflection. This is the standard of a perfect capacity; but the question is not how well a man can talk or reason, or with how much judgment he can act, or with how great propriety and sense he can act; it is only, has he mind and reason? Can he talk rationally and sensibly? or has he thought, judgment, and reflection? Weakness of mind may exist in many differ. ent degrees without making a man intestable. Courts will not measure the extent of people's understandings or capacities if a man be legally compos mentis. Be he wise or unwise, he is the disposer of his own property, and his will stands as the reason for his action.' In Sutton v. Sutton, 5 Har. 459, the court say testable capacity amounts 'to nothing more than a knowledge of what he was about when he made the will, and how he was disposing of his property, and the purpose so to do it.' In the Lodge Will Case, 2 Houst. 418, the language of the court is: 'If the testator, at the time of executing the will, was capable of exercising thought, reflection, and judgment, knew what he was doing, and how he was disposing of his property, and had sufficient memory and understanding to comprehend the nature and char

acter of the transaction, he was capable of making a will. Mere weakness of mind or partial imbecility from disease of the body or from age will not render a person incapable of making a will.' In the Jamison Will Case, 3 Houst. 108, the court say of the testator: If he is able to understand that he is disposing of his estate by will, and to whom he is disposing of it, however weak his intellect may be, he is able and competent to make a will.'"

Such, gentlemen, is testable capacity, as defined in our Reports. "Every person is presumed in law to be of sound mind until the contrary is shown, and the burden of showing an unsound mind in the testator rests on the party contesting the validity of the will, and the testimony must relate to the time of its execution." Lodge v. Lodge's Will, 2 Houst. 418. If, however, insanity is once clearly established, the burden shifts, and it devolves upon those supporting the will to show that insanity did not exist at the time the will was made. The burden, however, does not shift until insanity is so established to your satisfaction by a preponderance of evidence. In determining the question of capacity, you must direct your minds to the precise time of the execution of the will. In cases like this, courts have been liberal in admitting testimony as to the physical and mental condition of the testator, both before and after the time of the execution of the will; but such testimony is admitted only for the purpose of enlightening your minds, so that you may have the environments of his life, and be able to concentrate your judgment upon that critical moment, and to say in that concentrated light whether, at the precise time of the making of the will, he was of sound and disposing mind and memory. If he was, then it is a matter of indifference what may have been his condition at any other time. When it is claimed that the will is void because of undue influence, the objection will not avail "unless such influence amounted to a degree of restraint such as the testator was too weak to resist, such as deprived him of his free agency, and prevented him from doing what he pleased with his property.” Duffield v. Morris' Ex'r, 2 Har. 375. The degree of influence necessary to control the mind of the testator must depend upon, and be proportioned to, the mental and physical strength or weakness of the testator. It is obvious that a man mentally and physically weak is more susceptible to undue influence than one who is strong and healthy. The influence "must be such as to take away his free will, such as he is too weak to resist; mere solicitation will not be sufficient to vitiate a will made by a person having a knowledge of what he is doing and intending to do when making it, though his act may be brought about by solicitation or that kind of influence which a disposition to gratify another may produce." Sutton v. Sutton;

5 Har. 459. The test is this: Is it the will of the testator, or that of a person controlling his will, which is expressed in the paper writing? Unless it is the substitution of the will of another for that of the testator, the influence or persuasion, whatever it may be, will not vitiate a will. A testator may listen to the persuasion of a wife and children or others about him; may regard the ties of affection, and the will be valid, unless his mind and judgment were overborne and controlled by them in the making of the will. The mere fact that such persons are about and in the presence of the testator at the time the will was made does not of itself vitiate the will. In reaching your verdict, you should give to the testimony of the subscribing witnesses to the will such credit as their peculiar relation to, and opportunity of knowing the condition of, the testator, at the exact time the will was made. entitle them. The law places them there to speak specially to that point. They, like expert witnesses, may give their opinion of the testamentary capacity of the testatrix, without giving the facts upon which such opinions are founded. Other than attesting and expert witnesses must give the facts and circumstances upon which their opinions are based, and such facts and circumstances go to the jury with the opinion, so that the jury may judge from such facts and circumstances what such opinion is worth in each case. You are to determine this case from the evidence given in this court room and the facts and circumstances here detailed. Nothing you have heard elsewhere, if anything there be; nothing said by counsel on either side which is not supported by that evidence,should have any weight whatever with you. You are the exclusive judges of such evidence; where it conflicts, you are to reconcile it if you can. If you cannot reconcile it, you should be governed by the testimony of those witnesses who have impressed you most, by their intelligence, impartiality, honesty, and opportunities of knowing the truth. Applying the rules of law as we have just stated them to the facts in this case, you are to reach your verdict. If you should find from the evidence, taking into consideration all the circumstances detailed and all reasonable inferences therefrom, that John Pritchard, the plaintiff, is the child and heir at law of Caroline C. Pritchard; and that, in addition thereto, she was not of sound and disposing mind and memory at the time she executed the alleged will, or that she made the said will under the undue influence of the said Henry Henderson, as defined by the court in this charge, your verdict should be for the plaintiff. If he has not satisfied you that he is such child and heir, or that the paper writing is not the will of Caroline C. Pritchard, either from want of testable capacity, or because of undue influence, or both, your verdict should be for the defendant. In other words, to entitle the plaintiff

to a verdict, you must be satisfied both that John Pritchard is the heir at law of Caroline C. Pritchard and that the paper writing is not her last will and testament. Exception noted for plaintiff.

Verdict: "We find that the defendant is guilty of the trespass and ejectment in the plaintiff's declaration mentioned."

The defendant in the above-stated action, by leave of the Court in that behalf, by Charles B. Evans and J. Harvey Whiteman, his attorneys, files the following reasons why the verdict should be set aside and a new trial granted: First, that the verdict was against the great weight of the evidence; second, that the verdict was against the law; third, that after the jury were impaneled and sworn, and during the progress of the trial of the above cause, one of the plaintiff's counsel, to wit, Albert Constable, on several occasions conversed with one of the jurors, to wit, Richard L. Price, at the station of the Philadelphia, Wilmington & Baltimore Railroad Company, in Wilmington, Delaware; fourth, that after the jury were impaneled and sworn in the above-stated cause one of the plaintiff's counsel, to wit, Joshua Clayton, held a private conversation with one of the jurors, to wit, Samuel M. Harvey, in the office of the court stenographer in the county court house; fifth, that after the jury were impaneled and sworn in the abovestated cause one of plaintiff's counsel, to wit, Joshua Clayton, was in company and conversation with two of the jurors, to wit, Frank Jester and Charles S. Bigger, in the saloon of Edward J. Newell, No. 6 East Seventh street, in the city of Wilmington; sixth, that after the jury were impaneled and sworn in the above-stated cause the counsel of the plaintiff above named were in company and conversation with the said jurors and other of the jurors impaneled in said cause at other places during the progress of said trial; seventh, that, in arguing the above-stated cause before the jury, counsel for the plaintiff referred to offers of settlement; absence of witnesses who were be yond the jurisdiction of this court; the condition of Caroline C. Pritchard, the testatrix, in respect to a physical disease; the act of one Walter Henderson, a witness not called at said trial; the findings of juries in trials at law in the state of Maryland where the same issues between different parties were involved; and other statements upon which there was no evidence introduced in the trial of the above-stated cause.

After hearing testimony and argument, the Court rendered the following opinion overruling the above motion:

LORE, C. J. One of the reasons urged for a new trial in this case is the rather unusual one in this court of the alleged misconduct of certain counsel for the plaintiff in holding

private conversations with members of the jury after they were sworn in the case, and before the verdict was rendered. In Johnson v. Porter, 2 Har. 325, the verdict was set aside because the defendant conversed with the jurors after they were sworn, the conversation being unexplained, and the verdict being against the evidence. In that case Chief Justice John M. Clayton used this language: "In any case where the verdict is strongly against the evidence, and this is accompanied by proof that the party in whose favor the jury have erred has been seen in conversation with them, after they were sworn, and he does not promptly account for the conversation, we will set aside the verdict. He has no business with the jury, except in court. He ought to keep away from them, and, if he will place himself in suspicious circumstances, he must be prepared to clear himself from the suspicion or take the consequences." We would approve and emphasize this doctrine, and say further that the doctrine applies to the counsel of the respective parties as well as to the parties themselves. If, therefore, the conversations which have been proved in this case were unexplained, the verdict for that reason would be set aside. By consent of counsel in this case, the rules of evidence have been relaxed, the doors thrown wide open, and all the conversations referred to have been detailed and explained, as having no relation to the case on trial; both by the counsel and the jurors implicated. As explained, they seem to have had no influence whatever upon the verdict. In such case, so far as we have been able to examine, the authorities are quite uniform that the verdict itself should not be disturbed, however imprudent such conduct might be; the rule being that temporary association or conversation between the jurors and counsel, which is satisfactorily explained, will not require the setting aside of the verdict, if it is shown to be of a nonprejudicial character, as where there is no conversation in regard to the case on trial. Delaney v. Hartwig, 91 Wis. 412, 64 N. W. 1035; Parsons v. Johnson, 66 Iowa, 455, 23 N. W. 921; 17 Am. & Eng. Enc. Law (2d Ed.) 1214, and cases cited. We must not, however, pass over the fact that one of the counsel, casually meeting, publicly treated two of the jurors in the case in one of the saloons of this city during the progress of the trial. Such conduct is most reprehensible, and we cannot too strongly condemn such an example of culpable imprudence and impropriety. Nothing but the full and detailed explanation of all the circumstances of this treating, made before this court on oath, by the counsel, one of the jurors, and by the saloon keeper, saves this verdict on this point. There was sufficient conflict of testimony before the jury in this case from which reasonable men might draw different conclusions; and, as the jury were the sole

judges of the evidence, and as they were specially charged not to regard any statement of counsel not supported by the evidence, and as there is nothing before us to show that any such statement in any wise affected the verdict, within the well-settled practice of this court, the verdict should not be disturbed for such reasons. We therefore refuse to order a new trial.

Exception noted for defendant.

(201 Pa. 58)

LEVIN v. SECOND AVE. TRACTION CO. (Supreme Court of Pennsylvania. Nov. 8, 1901.)

STREET RAILROADS-NEGLIGENCE-PERSONAL

INJURIES-CHILDREN-CARE REQUIRED.

A street railway company owes the duty of preventing children of such tender years that negligence cannot be imputed to them from being on the platform of a moving car, and, if such a child gets there without permission, failure to remove it from its position of danger as soon as it is discovered, is negligence. Appeal from court of common pleas, Allegheny county.

Action by Dennis Levin, by next friend, against the Second Avenue Traction Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Knox & Reed and Edwin W. Smith, for appellant. Marron & McGirr, for appellee.

PER CURIAM. When this case was here before (194 Pa. 156, 45 Atl. 134) we held: "When the motorman discovered the boy on the platform of the car, it was his duty to stop, and take him inside, or put him off." This simply followed Railway Co. v. Caldwell, 74 Pa. 421, and what our language clearly means is that when a child of years so tender that negligence cannot be imputed to it is found by a conductor or motorman on the platform of his moving street car, his duty is to remove it from its peril. This can be done by stopping the car, and putting it off, or by taking it inside. In saying, "The youth of the boy exempted him from the charge of being a trespasser, in the legal signification of the word (Barre v. Railway Co., 155 Pa. 170, 26 Atl. 99), and no negligence was imputable to him," in 194 Pa., 45 Atl., supra, our words mean that the boy was not a trespasser to whom no duty was owed, and they ought to be so understood. In Enright v. Railroad Co., 198 Pa. 166, 47 Atl. 938, cited by counsel for appellant, while it is true the boy was held to be a trespasser upon the train of the railroad company, we also decided that its employés could not eject him, or cause him, by fright or fear, to leave the train, while in rapid motion, so as to endanger his life; and that it was the duty of the defendant company and its employés not to eject him. The duty of a street railway company's conductor or motorman is to refuse to permit a child five years old to be on the platform of his moving 50 A.-15

1. A verdict on conflicting evidence will not be reversed on appeal.

2. In ejectment, a certificate of the secretary of internal affairs that a certain warrant "was only once located," though certifying a negative, was one which appeared from an inspection of the returns of such surveys in the land office, made by the proper officer, and was admissible.

3. Where defendant in ejectment sought to corroborate the lines adopted by his surveyors a short time before the trial by ancient documents and old notes of surveys in possession of trustees of an estate, it was not error for the court, in admitting them, to caution the jury that they should be carefully scrutinized, and, unless found to be genuine, should be given no credit.

Appeal from court of common pleas, Jefferson county.

Ejectment by S. W. Wilson and others against the Marvin-Rulofson Company. Judgment for plaintiffs, and defendants appeal. Affirmed.

C. Heydrick, Thos. H. Murray, Alexander C. White, and Don C. Corbett, for appellants. B. J. Reid, G. A. Jenks, C. Z. Gordon, and Means & Clark, for appellees.

PER CURIAM. This ejectment has been tried three times in the court below. The first trial resulted in a verdict for plaintiffs, the evidence having been submitted to the jury. It satisfied neither party, and both moved for a new trial. The court below, after argument, set the verdict aside, and granted a new trial. On the second trial the court gave peremptory instructions to the jury to find for plaintiffs. From judgment on this verdict, defendants appealed to this court, and the judgment was reversed on the ground that there were questions of fact which should have been submitted to the jury. See Wilson v. Marvin, 172 Pa. 30, 33 Atl. 275. At the third trial, which is now before us for review, the learned trial judge submitted the evidence to the jury, who found for plaintiffs, and defendants prefer the present appeal.

A careful perusal of the voluminous testimony discloses no error in the charge of the court. The forcible argument of appellants' counsel only tends to raise a doubt as to whether the jury made a mistake in their