nation, one or more members of the board, individually, might not be found qualified to hold the office, but, as a board, and as an organization, its de jure character remained intact down to and throughout the year 1883. If we are right in this view, the only other question of law and fact is, Did this board from 1881, down to 1883, act in its organized capacity, as a board of school directors for the Borough of Archbald? Under the undisputed evidence in this case, we feel compelled to reach the conclusion that it did. The character of the evidence is such that it does not rest upon the credibility of witnesses; but it is of the same character as that testimony which was adduced in the quo warranto case, upon which we decided the same fact; hence, it follows that the question of a rival board, beginning in 1881, unlawfully, and continuing down to the year 1883, being a de facto board does not arise in the case; and consequently, inasmuch as the plaintiff holds his office and founds his claim upon the acts of this Board, he cannot recover. We are asked to charge you upon several points. We will read them and answer them in order to preserve the rights of the parties. [The court first answers the defendant's points, and then the plaintiff's which were, inter alia, these:] 6. If the men who employed the plaintiff were de facto officers, and the jury believe the evidence of the employment contract and services of White for the time he was employed, their verdict should be for the plaintiff for $675, with interest from the first day of June, 1884." Ans. Under the facts in this case we answer this in the negative. 7. "The Act of 1893, upon which the order of court for the election in 1883 was made, is unconstitutional; and those holding under ward elections for 1883-4, to wit: the Miller Board', were not legal directors.” Ans. It is not necessary for us to decide, in this case, whether the Act of 1883 is constitutional or not. We therefore decline to charge as requested. 8. The voters of the School District of the Borough of Archbald, could not legally vote by wards for school directors in 1883. The provisions of the Acts of Assembly relating to the election of school directors by wards were not complied with in the proceedings purporting to establish ward elections for school directors in that Borough." Ans. It is not necessary for us to decide this question in this case; and therefore we decline to affirm this point. Under this view of the court, you will render a verdict for the defendant. Verdict and judgment accordingly. The assignments of error specified the answers to the points quoted, the direction to find for the defendant, and the ruling that the organization of the Miller Board in 1882 was legal, and they were the de jure board. Messrs. S. B. Price and James W. Oakford, for plaintiff in error: An officer de facto seems to be a person who is such by color of election, although ineligible or although the office was not vacant. M'Gargell v. Hazelton Coal Co. 4 Watts & S. 424. Lord Ellenborough defines an officer de facto as one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law. When a person holds an office by color of right he is an officer de facto. Dill. Mun. Corp. 676, § 716; 243, § 114. As a general rule it may be stated that not only when the corporate power resides in a select body as a city council, but where it has been delegated to a committee or to agents, then in the absence of special provisions otherwise, a minority of the select body, or of the committee or agents, are powerless to bind the majority or do any valid act. Dill. Mun. Corp. 247, § 221. The doctrine of the court below in this case appears to be that when there is a contest over municipal officers the public must deal with the de jure officers or their contracts are void. If this is the law, then whenever there is a contest over municipal office the business of the corporation must stop until a decision is reached. As to the attempt to enjoin the Gilroy Board, see Gilroy's App. 100 Pa. 5. The Act of February 16, 1883, purports to be general. But is it not special and within the prohibition of article 3, section 7 of the Constitution? It provided for a change in the number and mode of election of school directors in a certain class of boroughs, that is, those that had been divided into wards. The Act of 1874 provided for the division of boroughs into wards; the Supplement of 1876 provided that the court decreeing the division might upon certain conditions increase the number of councilmen and school directors so that each ward should have an equal number. The Act of 1883 provides that from and after such division into wards or when any such division has heretofore been made each ward shall elect not less than one nor more than three school directors. Probably the only borough upon which this Act became operative at once was the Borough of Archbald, for it had been divided into wards. In all other cases it was necessary to obtain a division under the provisions of the Act of 1874, before a change in the number of and mode of voting for school directors could be made. All our recent decisions are to the effect that if local results either are or may be produced by a piece of legislation it offends against this provision of the Constitution (art. 3, § 7) and is void. Scranton School District's App. 4 Cent. Rep. 311, 113 Pa. 176; Commonwealth v. Patton, 88 Pa. 258; Scowden's App. 96 Pa. 422; Daris v. Clark, 15 W. N. C. 209; McCarthy v. Commonwealth, 1 Cent. Rep. 111; Scranton v. Silkman, 4 Cent. Rep. 317, 113 Pa. 196; Commonwealth v. Halstead, 4 Cent. Rep. 315. The contracts of school directors, although not properly recorded, if performed by the party dealing with them, can be enforced. School Directors v. McBride, 22 Pa. 216; Genesee Township v. McDonald, 98 Pa. 444. In actions against public officers it is sufficient to prove that they acted as such. Neale v. Overseers, 5 Watts, 538; Barnet v. School Directors, 6 Watts & S. 46; Riddle v. Bedford, 7 Serg. & R. 392. A certificate of an election is prima facie | third parties. If the one could, then the other evidence of title to an office. Dill. Mun. Corp. 667, § 716; Campbell v. Commonwealth, 96 Pa. 344; Clark v. Commonwealth, 29 Pa. 129. The acts of public officers de facto are valid, so far as the public or third persons are interested therein. Keyser v. McKissan, 2 Rawle, 139; Thompson v. Ewing, 1 Brewst. 67; Neale v. Overseers, 5 Watts, 538. The claim of the plaintiff is based upon a contract with persons who were acting as school directors and who were apparently authorized by election to make agreements for the municipality. He carried out his agreement in good faith; the District had the benefit of his services, and he insists upon his right to recover the amount due upon his contract. Messrs. W. G. Ward, George S. Horn, and Alexander Farnham, for defendant in error: The rule is that where there is evidence which alone would justify an inference of the disputed fact, it must go to the jury, no matter how strong or persuasive may be the countervailing proof. A court may set aside a verdict as against the weight of the evidence, but that is the most they can do to assist the party. But in a case in which a court ought to say that there is no evidence sufficient to authorize the inference, then the verdict would be without evidence, not contrary to the weight of it. Whenever this is so they have the right, and it is their duty, to withhold it from the jury. could; and if these two could, any indefinite number of usurping boards could do so, which would be such an intolerable and unjust condition as to be ruinous to the District, and which no court should uphold. Genesee v. McDonald, 98 Pa. 448. A person cannot be a de facto officer unless there be an office to be filled; nor when the office exists with an incumbent exercising the franchises and discharging the duties incident to the office. It matters not whether such incumbent be a de facto or a de jure officer. Commonwealth v. Harding, 87 Pa. 353; Genesee v. McDonald, 98 Pa. 449. The constitutionality of the Act of 1883 could not affect the case. The mode prescribed by the statute for the employment of teachers for the public schools must be strictly complied with. Dennison School Dist. v. Padden, 89 Pa. 395. The mode prescribed by the statute is that no teacher shall be appointed, except by the affirmative votes of the whole number of the directors or controllers of the District; and in each case the names of the members voting, both in the affirmative and the negative shall be so entered in the minutes of the board by the secretary; and immediately after the annual appointment of teachers in each district, the secretary of the board shall send a written list of the names, and the schools to which they have been respectively appointed, to the proper county superintendent, with a notice of the day upon which the ensuing term of school in the district will commence, and the termination Purd. Dig. p. 289, pl. 37. But where the weight on one side is of such a character as not to incline the beam at all-thereof as directed by the board. what the civilians term a mere adminiculum; good to help something else-nothing but a conjecture then it is as much a question for the court as if this scintilla was absent. Howard Exp. Co. v. Wile, 64 Pa. 205; Webster v. Laudenslager, 84 Pa. 452. The directors shall have the appointment of all the teachers of common schools in the district, fix the amount of their salaries, dismiss them, etc. Purd. Dig. p. 290, pl. 51. When the evidence is not in conflict upon the question of fact in dispute, the plaintiff's points may assume the facts to be in accord-recognize its authority or legality. ance with the evidence. The plaintiff was not employed by the Miller Board; he held it at arm's length and refused to Wannamaker v. Burke, 2 Cent. Rep. 323, 111 Pa. 430; Hoag v. Lake Shore etc. R. R. Co. 85 Pa. 298. When a fact essential to the maintenance of a cause is not established by proof, the judge may order a nonsuit, or direct a verdict for defendant; and when the requisite facts are agreed upon or admitted, he may instruct a finding for plaintiff. Lehigh Valley R. R. Co. v. McKean, 90 Pa. 127. In the case now before the court the evidence on part of the plaintiff wholly failed to establish any of the essential facts requisite to maintain the action. All the evidence on part of the plaintiff fails to show that the Gilroy Board was a de jure board of school directors of the District; but it does show that there were two boards acting as and each claiming to be a de jure board of school directors for the District. Certainly they both were not de jure boards. If both boards were usurpers, each acting under its own illegal and belligerent claim, neither of them was such a de facto board as had power to bind the District by contract with | In Kerr v. Trego, 47 Pa. 296, Chief Justice Lowrie says: "On the division of a body that ought to be a unit the test of which represents the legitimate social succession is, Which of them has maintained the regular forms of organization according to the laws and usages of the body, or, in the absence of these, according to the laws, customs and usages of similar bodies in like cases, or in analogy to them. This is the uniform rule in such cases. *** In all cases where part of the public body remains, and is to be completed by the reception of new members, it remains as an organized nucleus, and in its organized form it receives the new members and then proceeds to the election of new officers, if any are then to be elected. The old nucleus is not dissolved by the incoming elements, but these are added to it, and then the whole body proceeds to the exercise of all its functions." Per Curiam: There was no error in the court holding the "Miller Board" to be the duly elected and qualified board of directors. It was acting as such and performing the duties of the office. Any other de facto board could not bind the School District. It follows that the plaintiff | the estate of the decedent's father, in Virginia, cannot compel the District to fulfill a contract made with the pretended board. When the plaintiff made a contract with it, he ran the risk of its being declared to be invalid. Judgment affirmed. by a will giving property to trustees for the son for life with power of appointment by him. This sum was all of the estate of the decedent's father that there was to pass by Gustavus' appointment; and the auditor concluded inasmuch as it was so small, compared with the moneys of the decedent in his own right, that he could not have intended his will to pass only the estate over which he had a power of appointment, but that it also passed his own estate, and accordingly the auditor awarded the whole fund to the widow. written was merely an execution of the power The appellants contended that the will above of appointment, and did not pass the residue of his estate, derived from his uncle and mother, and filed exceptions to the auditor's report. The court dismissed the exceptions and confirmed the report. Messrs. John J. Gheen, Thomas W. Pierce and Abner Pyle, for appellants: The parenthetic clause is part of the will, and limits the property bequeathed. The law requires every sentence and word in JULY Term, 1886, No. 101, E. D. before a will to be considered, in forming a judicial Appeal from a decree of the Orphans' Court of Chester County, dismissing exceptions to an auditor's report and directing distribution. Reversed. Before the auditor, H. T. Fairlamb, Esq., appointed to make distribution of the balance shown by the account of William Kennedy, administrator c. t. a. of the will of Gustavus Č. Wheeler, deceased, the following facts appeared: The decedent died April 10, 1884; his will duly probated was as follows: "Witness, all persons, I, Gus. C. Wheeler, this day second day of October, 1869, if I should be killed or otherwise lose my life, I leave and bequeath all my property (as stated in my father's will) to my wife Mary S. Wheeler. Gus. C. Wheeler." He left a widow, Mary S. Wheeler, but no children. His next of kin were his two sisters, H. Virginia Baker and Elizabeth Wheeler, the appellants. The administrator c. t. a. filed his account, showing a balance in his hands of $2,995.30, which sum included, as ascertained by the auditor, the sum of $90, which was derived from NOTE.-Evidence is admissible which, in its nature and effect, merely explained what the testator has written; but no evidence can be admissible which, in its nature or effect, is applicable to the purpose of showing merely what he intended to have written. Funk v. Davis (Ind.) 1 West. Rep. 302; Judy v. Gilbert, 77 Ind. 96; Sherwood v. Sherwood, 45 Wis. 357. opinion upon it. Turbett v. Turbett, 3 Yeates, 187. The general rule is that parol evidence is admissible only to explain latent ambiguities, so as to apply the provisions of a will to the subject or person intended, when the description is defective, uncertain, or too general to be understood specifically. Best v. Hammond, 55 Pa. 409; Wusthoff v. Dracourt, 3 Watts, 240; Wigram, Wills, pp. 118, 132, 205. When the language of a will is plain, the intention is to be gathered from the language. Bartholomew's App. 75 Pa. 169. Where the language of a will is clear and unambiguous a doubt, suggested by extrinsic evidence of the testator's intention at the time he wrote the will, cannot be permitted to affect the construction of the will. Sponsler's App. 107 Pa. 95. He used precisely the language necessary to execute the power, and no more, making it clear that he intended nothing more. A general power is, in regard to the estates which may be created by force of it, tantamount to a limitation in fee, not merely because it enables the donee to limit a fee, but because it enables him to give the fee to whom he pleases. the northeast quarter of the section mentioned. Where there are two claimants for the same legacy, and it is not given to either by the correct name, evidence dehors the will may be considered in determining to which it belongs. Washington and Lee University's App. 2 Cent. Rep. 331. A devise was of "all that my farm and plantation near Cropwell conveyed to me by the heirs of my In Cleveland v. Spilman, 25 Ind. 95, the devise be- deceased wife, and where my son Thomas now reing of "my land, being the south half of the north-sides, containing about eighty-five acres more or east quarter," etc., evidence was admitted to show less." "9 The testator owned two parcels of land near that the land owned by the testator was in the Cropwell, the one containing 72.62 acres, which had northeast instead of the east quarter as written, and been conveyed to him by the heirs of his deceased that that was the lard intended, on the ground that wife, the other containing 14.73 acres, which had the word "land" conveyed the land owned by the been conveyed to him by another party. These two testator, and the attempt to specifically describe it parcels adjoined each other and had been rented did not make nugatory the general description. and cultivated together for many years. Thomas resided on the first named parcel, but cultivated and used both. Held, that only those premises which had been conveyed to the testator by the heirs of his deceased wife, passed by the devise, reviewing the authorities English and American. In Funk v. Davis, supra, the devise was of the "northwest quarter of the northwest quarter of section 27." Evidence was not admitted to prove that the testator was not the owner of the land described lying in the northwest quarter of the section, but that the land owned and intended to be devised was the same description lying in Griscom v. Evans, 40 N. J. Law, 402; 1 Am. Prob. Rep. 130. [J. M.] Words in general are to be taken in their or The meaning of the will is not controlled by dinary and grammatical sense. Punctuation the value of the respective estates. Rawle's App. 106 Pa. 199. The question in expounding a will is not what the testator meant, but what is the meaning of his words. Hancock's App. 3 Cent. Rep. 527, 112 Pa. 532. Mr. Alfred P. Reid, for appellees: All the facts and circumstances respecting persons or property to which the will relates, are undoubtedly legitimate, and often necessary, evidence to enable the court to understand the meaning and application of the testator's words. 1 Greenl. Ev. § 289; 1 Jarm. Wills, 5th Am. ed. 733. All the surrounding circumstances of a testator (his family, the amount and character of his property) may and ought to be taken into consideration in giving a construction to the provisions of his will. Postlethwaite's App. 68 Pa. 480; Marshall's App. 2 Pa. 388; Earp's Will, 1 Pars. 453. It is for the purpose of enabling the court to discover the intention by putting themselves in the place of the party to see how the terms of the instrument affect the property or subject matter. 1 Greenl. Ev. § 287. Whether a general devise will operate as an appointment may be ascertained from the fact that the instrument cannot have any operation, except upon the ground that the donee intended to execute his power; as where it is a power to dispose of real estate and he has none of his own. Parol evidence that the testator had no other real estate than that covered by the power is held legitimate; and upon such proof a general devise is held to be an execution of the power. Bingham's App. 64 Pa. 349; 2 Jarm. Wills, 5th Am. ed. 272. Parol evidence is admissible to explain latent ambiguities in a will, or to apply its provisions to the subject or party intended, when the description is defective, uncertain, or too general to be understood. Best v. Hammond, 55 Pa. 412; Brownfield v. Brownfield, 20 Pa. 55; Newell's App. 24 Pa. 197. Such evidence is not received to produce a construction against the direct and natural meaning of the words, but to assist the court in determining what really was the meaning of the ambiguous and indefinite expressions, which are capable of different interpretations. Note to Baugh v. Read, 1 Ves. 265. This will is ambiguous on its face. The use of the words, "all my property," indicates an intention to dispose of all he had. Do the words following, "as stated in my father's will," overthrow that intention, and make it simply an exercise of the power of appointment? If so, it must be because the parenthetical clause qualifies the words "all my property," and reduces the meaning of this general comprehensive expression to "all the property mentioned in my father's will." The fact that this clause is to be regarded in the construction of wills. Hawk. Wills, p. 7. In Morrall v. Sutton, 1 Phillips, Ch. 533, effect was given to a parenthesis in construing a will. The phrase in parenthesis was referred to another part of the principal sentence for its subject. In construing a will, it is not necessary for the court to consider the words exactly in the order in which they are placed, if a different arrangement will better answer the apparent intent of the testator. Ferry's App. 102 Pa. 207. Thus, by transferring this parenthetical sentence, the apparent intent of the testator is carried out: I give and bequeath (as stated in my father's will) all my property to my wife Mary S. Wheeler." The son had no property in the trust fund created by his father's will. The subject of a power is the property of the donor, not of the donee. Bingham's App. 64 Pa. 345. The The It passes as the property of the donor. appointee takes directly from the donor. donee is simply the hand that directs it. Commonwealth v. Williams, 13 Pa. 29; Commonwealth v. Duffield, 12 Pa. 277. Prior to the Act of June 4, 1879, "The Supplement to the Wills Act," a bequest of all his property would not have been an execution of a power of appointment. 2 Jarm. Wills, 679. When a will is executed the natural and reasonable presumption is that the testator does not intend to die intestate as to any of his property. Miller's App. 5 Cent. Rep. 237; Stehman v. Stehman, 1 Watts, 466; Raudenbach's App. 87 Pa. 51; Hofius v. Hofius, 92 Pa. 305; Roland v. Miller, 100 Pa. 50; Ferry's App. 102 Pa. 207; Little's App. 81 Pa. 190; Appeal of Board of Missions, 91 Pa. 507; Axford's Est. 2 W. N. C. 663. The presumption therefore is that when Gus. C. Wheeler wrote this will, he intended to dispose of all his property. An express and positive bequest cannot be controlled by subsequent ambiguous words. The gift of all my property "is positive. The parenthetical clause is ambiguous. When comprehensive words are used, an enumeration of particulars will not restrict the meaning of the larger words. Wood's Est. 9 W. N. C. 171. When the omission or insertion of words has left unexpressed or wrongly expressed, what, from the whole tenor of the will, was the intention of the testator, the court will permit the will to be read as if the words had been inserted or omitted. McKechan v. Wilson, 53 Pa. 74; Zerbe v. Zerbe, 84 Pa. 147. Since the Act of June 4, 1879, "The Supple ment to the Wills Act,' a bequest of all his property will carry that of which he had the power of appointment, even though the will was made prior thereto. Aubert's App. 1 Cent. Rep. 104. Mr. Justice Gordon delivered the opinion of the court: The cardinal rule for the construction of wills is that the intent of the testator must be gathered from the will itself. Other than this rule there is probably no one that is supported by so great a multitude of authorities. Moreover, it is said in Reck's Appeal, 78 Pa. 432, by Mr. Justice Shars wood, that all mere technical rules of construction must give way to the plainly expressed intention of the testator, if that intention be lawful. Again; where there is no ambiguity in the terms of the will, a doubt suggested by extraneous circumstances cannot be permitted to affect its construction. Sponsler's App. 107 Pa. 95. With these rules thus stated for our guide, we turn to the examination of the will before us, which reads in this manner: :Witness, all persons, I, Gus. C. Wheeler, this day second day of October, 1869, if I should be killed or otherwise lose my life, I leave and bequeath all my property (as stated in my father's will) to my wife, Mary S. Wheeler. Gus. C. Wheeler." Now, confining ourselves, as the authorities require us to do, strictly to the language here set forth, and we cannot perceive the slightest ambiguity. The testator had a "property" in his father's will; a life estate, with the power to dispose of the corpus by appointment. That he referred to this property and intended to dispose of it no one pretends to question, and this would seem to fully cover the testator's design. How, then, are we to get beyond it? The court below seemed to think that as he had a much larger estate than he thus devised it must be assumed that of it he did not intend to die intestate. But how do we know this? Or how do we know that he had any other estate than that devised? Certainly, we can derive no such knowledge from the will; hence, it must arise from some extraneous proof or circumstance which we are not at liberty to consider. And why is it to be supposed that he did not intend to die intestate as to the balance of his property, if any such he had? Had the devise been to a stranger no one would have entertained the idea that he intended aught but what he wrote the execution of the power found in his father's will. But because the devise was to his wife, the court determined to read the will without the limitation. But it will be seen at a glance that such a conclusion could have been arrived at only through a total disregard of the above stated rules of construction. It has made a new, and, perhaps, better will for Gus. C. Wheeler, than he made for himself; nevertheless, as it is one that he did not make, we cannot adopt it. The decree is reversed, at the costs of the appellees, and a redistribution ordered. George M. BISHOP, Plff. in Err., v. Township of SCHUYLKILL. 1. While a township is required to construct and maintain its public roads in such a manner as to make them safe for JAN Error to the Common Pleas of Chester County, to review a judgment on a verdict for the defendant in an action of trespass on the case. Affirmed. The facts as they appeared at the trial before FUTHEY, P. J., are stated in his charge to the jury, which was as follows: This action is brought by George M. Bishop against the Township of Schuylkill, to recover damages for the death of a horse, occasioned, as he alleges, through the negligence of the supervisors. It appears from the evidence that there was formerly a public road running east and west along the brow of a hill overlooking the Schuylkill River, near the Borough of Phoenixville, and that another public road, known as the Dayton Street Road, leading from the borough, entered that old road at a point designated on the draft to which you have been referred during the trial. In 1864 and 1868 the public road along the brow of the hill was vacated. The portion of the road east of where the Dayton Street Road entered, was vacated in 1864, and closed in 1865, and that portion west of where Dayton Street entered was vacated in 1868; so that eventually, by these two vacations, the whole of the road was vacated. The effect of this vacation was that Dayton Street, which had formerly entered that public road, thus leading the travel in both directions, terminated on the south side of the vacated road; and from that time to the present there has been no travel along that portion of the continuation of Dayton Street, beyond the gate of the cemetery, there being no farm houses to reach, and no occasion to drive that way. When the road along the brow of the hill was vacated, no portion of the Dayton Street Road was disturbed, it being left just as it had been originally laid out, and as it had been traveled for a number of years. It is, perhaps, proper to remark that the court would not have laid out the Dayton Street Road *See Hubbell v. Yonkers (N. Y.), 6 Cent. Rep. 499; Monk v. New Utrecht (N. Y.), post, 240. |