for a new trial, "since the decisions in Action v. Blundell, and Wheatley v. Baugh, probably more deep wells have been drilled in Western Pennsylvania than had previously been dug in the entire earth in all time. And that which was then held to be necessarily unknown, and merely speculative, as to the flow of water underground, has been, by experience in such cases as this, reduced almost to a certainty." If this is the state of knowledge at the present day; if the existence of a stratum of clear water, and its flow into wells and springs of the vicinity, and the existence of a separate and deeper stratum of salt water, which is likely to rise and mingle with the fresh, when penetrated in boring for oil or gas, are known, and the means of preventing the mixing are available at reasonable expense, then, clearly, it would be a violation of the living spirit of the law not to recognize the change, and to apply the settled and immutable principles of right to the altered conditions of fact. The learned judge, in his charge, said: "There is evidence from which the jury could fairly find that the defendant, when the well was drilled, knew, or ought to have known, if they had exercised any reasonable judgment, or investigated or paid any attention to it, that the boring of this well in the way it was done, without shutting off the salt water from the fresh water, would almost inevitably ruin these and other wells in the immediate vicinity. And I think there is evidence from which the jury could fairly find that the defendant could, with the outlay of a small amount of money, have shut off the salt water from the fresh water so that it could not have done any injury." If the jury had found the facts as this charge assumes that they fairly might on the evidence, then the plaintiff had made out a case of negligence, and was entitled to recover. Negligence in this sense is the absence of such care and regard for the rights of others as a prudent and just man would and should have in the same situation. If the plaintiff showed that the injury was plainly to be anticipated, and easily preventable with reasonable care and expense, he brought himself within the exception of all the cases from Wheatley v. Baugh to Penn. Coal Co. v. Saunders, inclusive.

It may be well to say that, in cases of this nature, juries should be held with a firm hand to real cases of negligence within the exception, and not allowed to pare the general rule by sym

pathetic verdicts in cases of loss or hardship from the proper exercise of clear rights. The danger of such result is not to be ignored, but we cannot on that account shut the door to suitors entitled to redress for genuine wrongs. The duty to maintain the line firmly where justice and law put it is, in the first instance and chiefly, upon the trial courts.

Judgment reversed and venire de novo awarded.

NOTE.-See Epitome of cases: Waters.

WILLS,

ROBENO V. MARLATT.

(136 Pa. St. 35.)

Wills-Posthumous children. Under sec. 15 of act of Apr. 8, 1833, a testator is deemed to die intestate as to after-born children, where no provision is made for them in his will; and their rights are not defeated by an absolute devise, nor are they required to look only to the proceeds of the sale, in case of sale by such devisee.

STERRETT, J.

Sec. 454. Facts stated. The question in this case arises upon the facts established by the special verdict, in substance as follows, viz. Andrew Robeno, Jr., became the owner in fee of the lot in controversy by purchase in 1873, and died seized thereof in January, 1885, leaving to survive him a widow, Helen A. Robeno, and three minor children: Mary P., born May 9, 1882, and died June 5, 1885, Helen E., born November 29, 1883, and Andrew T., born September 5, 1885, several months after his father's decease. The two latter by their guardian, Robert E. Pancoast, are the beneficial plaintiffs in this suit. The defendants, Mary H. and Sallie A. Marlatt, claim as vendees of the widow, Helen A. Robeno, to whom her husband by his last will and testament, dated September 2, 1881, before either of his children was born, devised the lot in controversy, etc. On the other hand, it is contended on the behalf of the plaintiffs, that

inasmuch as their father's will, in which no provision is made for his after-born children, was executed before they and their deceased sister were born, he must be deemed to have died intestate as to all his children; and hence they are entitled to the possession of the real estate of which he died seized, as if he had actually died without any will, subject however to the life estate of their mother in five ninths thereof, which by her deed is vested in the defendants.

Sec. 455. Posthumous children-Statutes construed. This contention is based on sec. 15, act of April 8, 1833, which is as follows: "When any person makes his last will and testament, and afterwards shall marry or have a child or children not provided for in such will, and die leaving a widow and child, or either a widow or child or children, although such child or children be born after the death of their father, every such person, so far as shall regard the widow, or child or children after-born, shall be deemed and construed to die intestate, and such widow, child or children, shall be entitled to such purparts, shares, and dividends of the estate, real and personal, of the deceased, if he had actually died without any will."

In the court below, the case was submitted to the jury, who rendered a special verdict, embodying the facts of which the foregoing statement is the substance, and submitted to the judgment of the court whether, upon the facts so found, their verdict should be for the plaintiffs or for the defendants. The special verdict also provides "that if judgment be entered for the plaintiffs, it shall be for the premises described in the writ, subject to the life estate of Helen A. Robeno in five ninths thereof, etc." Judgment was entered in favor of the defendants on the special verdict, and the sole question raised by this appeal is whether the court erred in so doing.

The facts established by the special verdict bring the beneficial plaintiffs within the very letter as well as the spirit of the act of 1833, above quoted, and entitle them as after-born children, for whom no provision is made in the will of their father, to the same interest in the real estate of which he died seized "as if he had actually died without a will;" and, unless there is something to take their case out of the operation of the act, the judgment should have been in their favor.

The learned president of the Common Pleas correctly held

that their right is not affected by the act of June 4, 1879, but he came to the conclusion that the deed of April 16, 1887, from the widow to the defendants, was a good execution of the power of sale given her by the will, and hence the plaintiffs were barred of their right of possession, and must look to the fund realized by the sale. In that we think he was mistaken. The power of sale, contained in the third clause of her husband's will, is given to Mrs. Robeno in connection with the devise of all his real estate to her, "her heirs and assigns absolutely forever." In her deed to two of the defendants, she conveys in fee, not by virtue of the power of sale, but as sole devisee of her husband. The lot is described as being the premises which Thomas Hare and wife, by deed dated November 13, 1873, conveyed in fee to Andrew Robeno, Jr., who, dying seized thereof, devised the same in fee to his wife, Helen A. Robeno. There is nothing whatever, either in the deed itself or dehors that instrument, to indicate that she conveyed or intended to convey by virtue of the power of sale specified in the will, or for the purpose of paying debts; nor does it appear that there were any unpaid debts of the testator. It is not pretended that the sale was made in the due course of administration. So far as appears by the special verdict, it was made in the vendor's own right and for her own benefit.

It is true that, as to after-born children, a will is not absolutely void, but is void only in so far as the shares of the children are affected by it. Coates v. Hughes, 3 Binn. 498. The appointment of a testamentary guardian, and a power of sale for the payment of debts, have been upheld against such children, because they are not in conflict with either the letter or spirit of the act of 1833, above quoted. The appointment of a testamentary guardian relates only to the custody of the minor's person and management of his estate. It cannot affect his interest as distributee under the intestate law. A power of sale for the payment of debts, like the appointment of an executor, relates to the administration of the estate, payment of debts, etc. claims of creditors are of course superior to the rights of heirs or distributees. The latter take nothing until the decedent's debts are paid. Hence, a power of sale for the payment of debts, and the execution thereof, cannot injuriously affect the right of after-born children "to such purparts, shares, and dividends of

The

the estate real and personal," of their deceased parent, "as if he had actually died without any will."

The language of the act is clear and explicit; and as heretofore construed by this court it undoubtedly applies to the facts of this case and sustains the contention of the plaintiffs. Walker v. Hall, 34 Pa. 483; Edward's App., 47 Pa. 144; Willard's Est., 68 Pa. 327; Grosvenor v. Fogg, 2 W. N. 709; Hollingsworth's App., 51 Pa. 518. To require the plaintiffs to look only to the proceeds of the sale made by their mother would be denying them that interest in their father's estate which the act declares they are entitled to, namely, "such purparts, shares, and dividends of the estate, real and personal, of the deceased, as if he had actually died without any will." The specifications of error are sustained.

Judgment reversed; and judgment is now entered on the special verdict in favor of the plaintiffs for the premises described in the writ, subject to the life estate of Helen A. Robeno in five ninths thereof, which is vested in the defendants.

NOTE. See epitome of cases: Wills.

WOOLLEY ET AL. V. PAXSON.

(46 O. St. 307.)

Lapsed devises-Construction of statute. Under section 5971 of Ohio Rev. Stat. it is held that where the testator devised his entire estate to his wife for life with remainder to be converted into money and divided into four equal parts, one of which should be invested in real estate and conveyed to his son Isaac for life with remainder to his children in fee, and the wife, the son Isaac and his two daughters all died before the testator, the said daughters dying intestate and each leaving issue surviving the testator, such surviving issue of each of the two daughters of Isaac take the share of the devise to Isaac's children, which their deceased mother would have taken, had she survived the testator. The statute applies to a devise of "children" as a class.

MINSHALL, J.

The original suit was brought by the executor of Aaron Paxson, deceased, to obtain a construction of an item of the will, about which he was embarrassed in the execution of his trust. The testator first devised all his estate to his wife for life, and then, after making certain other provisions, by the eighth item, on which