was duly probated in the register's office of Erie county. Among others, the following bequests were made: I also give and bequeath to my son Samuel McCreary, deceased, his children, to be paid to each of them in order as each shall arrive to the age of 21 years, or sooner if necessary, left to the discretion of my executors, to be paid out of the avails arising and coming to me from the rental of the woolen factory in Fairview township according to the contract made with the original factory company (1) to Larry McCreary, $100; (2) Allis L. McCreary, $100; (3) Ralph McCreary, $200; (4) Nellie Blanche McCreary, $100. I give and bequeath to my daughter Sophia Thornton $100, to come out of avails of the rental of the aforesaid factory, after the payment made to the children of my son Samuel, as aforesaid, and bequeath the residue and remainder arising from the lease of the aforesaid woolen factory to A. J. McCreary and Mary Green, to the amount of $500 each, if the same should be retained by my executors till it would amount to that sum; and, if held till it overruns that sum, I give and bequeath to the Freedman's Mission $10 a year as long as the lease runs,' etc. Fifth. Samuel McCreary died in October, 1867, and that A. J McCreary, as surviving executor of his estate, filed his account to No. 24, September term, 1885, of the orphans' court of Erie county, to which account exceptants have filed their exceptions as they appear in this. case. Counsel for the accountant asks the auditor to dismiss the exceptions filed, for the reason that exceptants have no interest in the estate of decedent, being specific legatees under the will of decedent, and having received their legacies in full, and for the further reason that the reservation in the deed from Samuel McCreary to A. J. McCreary contains no words of inheritance or limitation to his heirs and assigns, and is therefore at law a reservation of a life-interest to the grantor only. If this last position of accountant be correct, then it does not become necessary to pass upon the exceptions filed by the legatees. Hence we will dispose of this question first. If, in the deed from Samuel McCreary to A. J. McCreary, dated January 1, 1858, the words 'except a small part which lies upon the west or tract line, and which amounts to about two acres, which is under lease to McCreary, Thornton & Co. for a woolen factory, which lease bears date of May 8, 1848, which land and privilege is hereby reserved until the expiration of said lease,'-if these words created an exception in the deed, then the land leased, and from the rental of which the legacies were to be paid, still remained the property of Samuel McCreary, and the rental therefrom, from the death of the grantor till the expiration of the lease, should be divided in accordance with his will. If this was an exception, then according to its terms it was to run till the expiration of said lease. When did the lease expire? It was to run for a definite term of 15 years from April 1, 1848, with the privilege of renewal for a term of five years, provided the lessor did not, at the end of the term, take the improvements at a fair valuation. It seems that at the end of the term of 15 years, April 1, 1863, lessor did not take the improvements, but renewed the lease for a further period of five years, which expired April 1, 1868. Lessor died in October, 1867. Nothing contained in the lease required lessor's heirs to continue the lease after the expiration of the original term of 15 years. At the end of 20 years, if the parties continued in possession, there was to be a revaluation of the water privilege, and a new yearly rental fixed. I therefore take it that this lease was for a term of 15 years, with the privilege, at the expiration of that time, of a renewal for five years longer at the same yearly rental, provided the lessor did not take the buildings, etc., at a fair price to be fixed. Then at the expiration of the second term, or 20 years from the date of the lease, if the lessor did not take the improvements, there was to be a new letting at a price or yearly rental to be fixed by disinterested men chosen by the parties.' Under this view of the case, I am of the opinion that the lease terminated at the end of the first five-year term, April 1, 1868; and, if the clause in the deed to A. J. McCreary was an exception, then by its very terms · it terminated on April 1, 1868, and at that time grantee would take an absolute estate in the land excepted, and would not be accountable to any one for the profits arising therefrom. If, on the other hand, this clause in the deed from testator was a reservation, then, under the ruling in the case of Kister v. Reeser, 98 Pa. St. 1, and numerous other cases, there being an omission of the words heirs and assigns,' the reservation ceased on the death of the grantor, and the grantee took an absolute estate at that time. Hence the heirs and legatees had no claim on the rents arising from said lease, and A. J. McCreary was not obliged to account to them therefor. Grantor may not have known the legal effect of the reserving clause in his deed; but, as the deed must be most strongly construed against the grantor, I am of the opinion that the land and privilege' reserved became the property of A. J. McCreary, as before stated; and it makes no difference whether this be a reservation or an exception; for, if a reservation, then it ceased at the death of the grantor, and, if an exception, then it is limited, by its own terms, to the expiration of the lease, which was April 1, 1868, prior to which time accountant collected no rents. Hence his payments to the legatees were a mere gratuity, and therefore exceptants have no standing in this case. The exceptions are therefore dismissed, at the cost of the exceptants." The court below (GUNNISON, P. J.) delivered the following opinion: "The conclusion of law arrived at by the auditor is, I think, correct. It is immaterial whether the clause in the deed from Samuel McCreary to A. J. McCreary, except a small part which lies upon the west or tract line, and which amounts to about two acres, which is under lease to McCreary, Thornton & Co. for a woolen factory, which lease bears date May 8, 1848, which land and privilege is reserved until the expiration of said lease,' be construed an exception or a reservation. There were no words of inheritance, so that, if a reservation, the land was reserved only during the life-time of the grantor; if an exception, it was only until the expiration of the term of the lease. The intention of the parties, as disclosed by the deed itself, is the rule by which the language should be construed. If doubtful, it should be construed most strongly against the grantor. But can it be said that the intention was that the exception should be for a longer time than until the expiration of the original lease for fifteen years, or, at most, the renewal for five years thereafter? The longest time the lessees could continue in possession, if the lessor chose to exercise his right of taking the improvements at an appraisement, was twenty years from the beginning of the term of the original lease. Their right of remaining longer was subject to the contingency of the lessor not exercising that right. It is reasonable to presume that the term intended by the parties to the deed was the term then in existence, provided by the lease as originally executed, and not some contingent renewal of it in the future. Any other construction would be unreasonable, and render the intention of the parties vague and uncertain. The exceptions are dismissed, and the report of the auditor is confirmed." D. A. Sawdey and S. M. Brainard, for appellants. D. B. McCreary, for appellee. PER CURIAM. We are entirely satisfied with the construction which the learned auditor and court below have placed upon the deed from Samuel McCreary to A. J. McCreary. The position that the accountant is estopped because he has brought the rents under the lease into his account is not tenable. He has given the reasons why he did so. He expressly declares that it was not brought in because he was liable therefor, but for the reason he desired to carry out his father's wishes as expressed in his will, and there was no other fund out of which he could do it. In other words, it was a gratuity to the appellants. We do not see our way clear to apply the doctrine of estoppel to such a case as this. The appellants have received a considerable sum of money to which they had no legal claim, and for which they should be thankful. Decree affirmed, and the appeal dismissed, at the costs of the appellants. EUSTICE v. PLYMOUTH COAL Co. (Supreme Court of Pennsylvania. May 7, 1888.) 1. PARENT AND CHILD-MOTHER'S RIGHT TO SON'S EARNINGS-DESERTION BY HUSBAND -EVIDENCE. Where a mother sues for the wages of her son, under act Pa. May 4, 1855, enabling her to receive the earnings of her minor children when the father neglects to provide for them, and plaintiff testifies that her husband has done nothing for eight or ten years to support the family, evidence is admissible to show where the boy has been living since he left defendant's employ. 2. SAME-CHARACTER OF MOTHER. When a mother sues to recover wages of a minor child, under act Pa. May 4, 1855, providing that, when a father neglects to provide for his children, the mother may receive their wages if she be of suitable character to have custody of the children, her character is in issue, though not raised by the pleadings; and defendant may show that it is such as not to entitle her to the benefit of the act. Error to court of common pleas, Luzerne county; STANLEY WOODWARD, Judge. Action by Deborah Eustice against the Plymouth Coal Company for wages earned by her son John Eustice. Plaintiff's husband had deserted her, and she claimed to be entitled to the provisions of the act, set out below, authorizing a mother, if she be a person of suitable character, to receive the wages of her minor children, when the father neglects to provide for them. Plea was non-assumpsit and payment with leave. On the trial plaintiff swore that her husband had done nothing to support the family for eight or ten years, and defendant sought to show that the boy had not been in plaintiff's charge, but had been living with his father, and, on plaintiff's cross-examination, asked her when the boy came to live with her, and how long he stayed. It appeared that he came to reside with her after he had left defendant's employ, and that he was not living with her at the time of trial. Plaintiff's counsel objected to any evidence about the boy after the close of the time he worked for defendant, but the evidence was admitted, and is the subject of the first assignment of error. Evidence was also admitted, but objected to as irrelevant, which showed that plaintiff was unchaste and not a suitable person to have the custody of her children, and not entitled to the benefit of the act. Judgment for defendant. Plaintiff brings error. W. H. Hines, for plaintiff in error. Under the pleadings defendant cannot urge plaintiff's disability to sue; he must plead in abatement, (Walker v. Welch, 14 Ill. 277;) otherwise the objection is waived, (Dutcher v. Dutcher, 39 Wis. 651; Plath v. Braunsdorff, 40 Wis. 107.) But pleas in abatement and in bar cannot be joined. Rangler v. Hummel, 37 Pa. St. 133; Potter v. McCoy, 26 Pa. St. 458; Riddle v. Stevens, 2 Serg. & R. 537; Good Intent Co. v. Hartzell, 22 Pa. St. 277; Green v. North Buffalo Tp., 56 Pa. St. 110; Reimer v. Philadelphia, 5 Wkly. Notes Cas. 449; Gallagher v. Thornley, 10 Wkly. Notes Cas. 189; Lindsley v. Malone, 23 Pa. St. 24. Plaintiff is entitled to a new trial on the ground of surprise. Bitting v. Mowry, 1 Miles, 216. The evidence should not have been admitted without notice. 1 Whart. Ev. § 53; Townsh. Sland. & Lib. § 406; Anon., 8 How. Pr. 434. Evidence of character is not admissible in civil cases except when directly in issue. Porter v. Seiler, 23 Pa. St. 429, 430; 1 Whart. Ev. § 47, and cases cited. Geo. W. Shonk and G. L. Halsey, for defendant in error. The earnings of John Eustice belonged to the father. Galbraith v. Black, 4 Serg. & R. 207; U. S. v. Mertz, 2 Watts, 408. The finding of the jury that plaintiff was not a suitable person to receive her son's wages under the act will not be disturbed. ' PAXSON, J. It is a rule as old as the common law that the father is entitled to the custody and control of his minor children, and to receive their earnings. The act of 4th May, 1855, (P. L. 430,) has made some modification of this rule. The third section of said act provides: "That whensoever any husband or father, from drunkenness, profligacy, or other cause, shall neglect or refuse to provide for his child or children, the mother of such children shall have all the rights and be entitled to claim and be subject to all the duties reciprocally due between a father and his children; and she may place them at employment and receive their earnings, or bind them to apprenticeship, without the interference of such husband, the same as the father can now do by law: provided always, that she shall afford to them a good example, and properly educate and maintain them, according to her ability: and provided, that if the mother be of unsuitable character to be intrusted as aforesaid, or dead, the proper court may appoint a proper guardian of such children," etc. It is plain from the language of this act, in the cases to which it applies, that it gives no power to the mother to place her children at employment and receive their wages, unless she is a woman who affords them a good example and is of suitable character to be intrusted with their charge. The plaintiff brought suit against the defendant company to recover the wages of her son, a boy 13 years of age, who had been for some time in their employ. During that time he had been living with his uncle. The company defended upon two grounds: (a) That the boy's wages had been paid in full, and (b) that the plaintiff was a woman of bad character for chastity, and not entitled under the act of 1855 to claim the earnings of her son. The defense was sustained upon both grounds. It appears that the husband of the plaintiff and the father of the boy was living at the time of the trial. The plaintiff alleges that he deserted her about 10 years ago. It is not clear, however, that he deserted his child, even though he may have given the mother nothing for his support. The evidence referred to in the first assignment was offered for the purpose of showing that the boy was in charge of his father, and, so far as it tends to prove this, was competent. The second assignment goes to the question of the plaintiff's character. She was asked the question whether she had a Mr. Coursen arrested for adultery with her, and she answered, “Yes.” There was considerable other evidence not objected to or assigned for error which tended to show that her general character was bad. The plaintiff contended that all this was irrelevant, and that her character was not in issue. We think it was, under the act of 1855. It is true the law presumes her character to be good, and she might not, therefore, be called upon affirmatively to establish it in order to entitle her to recover; yet when such presumption is destroyed or rebutted, and she is shown to be of unchaste character, she can no longer stand upon the legal presumption. It is only by the act of 1855 that she can recover, and that act does not help her if she is a woman of bad example, and of unsuitable character to be intrusted with the control of her children. We find no error in this record. Judgment affirmed. END OF VOLUME 13. INDEX. NOTE. A star (*) indicates that the case referred to is annotated. Abatement and Revival. ACCESSION. Manufactured timber. Where complainant seeks to restrain de- When a settlement is made between mort- gagor and mortgagee as to the mortgage debt, On bonds, see Bonds, 3. contracts, see Contracts, 6, 7. By and against Husband and wife, see Husband and Wife, Municipal corporations, see Municipal Cor- Action on the Case. When lies, see Bridges. ADOPTION. Jurisdiction. 1. Under act Pa. May 4, 1885, (Purd. Dig. 78,. Attacking decree of adoption. when each is familiar with all the transac- 2. A petition for the adoption of a child al- Acknowledgment. Of treasurer's deed, see Taxation, 19. Action. all the brothers and sisters of its father had See Limitation of Actions; Pleading; Venue be heard to question a decree made at his in- stance.-Id. Admiralty. See Collision. (977) |