had seceded from the corporation, is bad, as a hypothetical denial.

5. In an action against a religious corporation for money loaned, that the corporation reported to the conference of which it was a member that it did not owe the debt is no defense.

Appeal from court of common pleas, Berks county; G. A. Endlich, Judge.

Action by Hettie Wanner against Emanuel's Church of the Evangelical Association, of Fleetwood, Pa. There was a judgment for Affirmed. plaintiff, and defendant appeals.

The opinion of the court below, delivered by G. A. Endlich, Judge, was as follows:

"This suit is brought by plaintiff against defendant, a corporation, upon certain promissory notes, of which the following are copies: "*$425. Fleetwood, October 5, 1889. Six months after date, we promise to pay to the order of George Knoll four hundred and twenty-five dollars, at 5 per cent. interest. Value received. William S. Merkel. Joel M.

Schaeffer. Amandus Kern. D. F. Kelchner. Edwin M. Mill. Adam B. Schaeffer.'

"Indorsed: For value received, I do hereby assign, transfer, and set over all my interest and title in the within note unto Hettie Wanner. George Knoll.'

**$350. Fleetwood, Pa., January 10, 1891. Two months after date, we promise to pay to Mary Merkel three hundred and fifty dollars ($350), for the use of the Evangelical Church, without defalcation, for value received, with interest at 5 per cent. William S. Merkel, J. S. Kelchner, George Heydt, Edwin M. Mill, Trustees of Evg. Church.'

"Indorsed: For value received, I do hereby assign, transfer, and set over all my right, title, and interest in the within note unto Hettie Wanner. Mary Merkel.'

$1,200. Fleetwood, April 1, 1892. One year after date, we promise to pay to the order of Joel B. Schaeffer twelve hundred dollars, at 5 per cent. interest (for the use of the Evg. Church), without defalcation, for value received. D. F. Kelchner. J. S. Kelchner. W. S. Merkel. Geo. Heydt. A. B. Schaeffer.' "Indorsed: 'For value rec'd, I do hereby assign, transfer, and set over all my right, title, and interest in the within note unto Hettie Wanner. Joel B. Schaeffer.'

"$500. Fleetwood, Pa., April 1, 1890. One year after date, we, or either of us, promise to pay to the order of Hettie A. Wanner five hundred dollars, without defalcation, for value received. Credit the drawer. At 5 per cent. interest. William S. Merkel. Adam B. Schaeffer. Joel M. Schaeffer. D. F. Kelchner. Amandus Kern. Edwin M. Mill. George Heydt.'

64

"$600. Fleetwood, Pa., January 22, 1891. Two months after date, we promise to pay to Schaeffer, Wanner & Co. six hundred dollars ($600), for the use of the Evangelical Church, without defalcation, for value received, with legal interest. William S. Merkel, J. S. Kelchner, George Heydt, Edwin M. Mill, Trustees of Evg. Church.'

"Indorsed: 'Fleetwood, April 1, 1891. We

do hereby assign, transfer, and set over all our right, title, and interest in the within note unto the estate of Lewis Wanner, dec'd, without recourse. Schaeffer, Wanner & Co.' "The statement filed by the plaintiff avers that all of these notes were, by the makers thereof, being thereto duly authorized and empowered, executed and delivered, on behalf of the defendant corporation, to the payees therein, for money loaned to the said corporation; that (except the $500 and $600 notes) they were duly assigned to the plaintiff by the payees therein, for a valuable consideration; that the $600 note having been so assigned to the estate of Lewis Wanner, deceased, the title to said note subsequently became vested in the plaintiff; that she is now the holder of all said notes; and that (deducting certain specified credits) they are unpaid, to the amount, in the aggregate, of $2,550, with interest from April 1, 1894. To this claim an affidavit of defense is filed, the principal allegations of which are that the defendant corporation was formed in 1867, consisting of members of the Evangelical Association of North America, the charter making the discipline of said association part of the organic law of the corporation; that in 1891 the majority of the members of corporation seceded from the said association; that the loyal members adhering thereto are maintaining the corporate organization under the said charter; that the deponent is the president of their board of trustees; that opportunity has been refused by certain persons, who have possession of the corporate books, etc., for examining the plaintiff's claims and determining their merits, though it is the intention of the said corporation, as represented by the said board, to pay every just and lawful debt of the corporation; that the notes in suit appear upon their faces to be the individual notes of the persons signing them, and that the defendant is advised that the said corporation cannot, under the law, be liable upon said notes; that their assignment to plaintiff entitles her to no action in her own name against the corporation; that, as to the $1.200 note, the money for which it is alleged to have been given, if loaned at all, was loaned to the seceding, and not to the loyal, members of the corporation; and that in February, 1894, the persons signing said note, and their pastor, reported to the conference to which they adhered that the total indebtedness of said corporation and four other congregations was but $230. Appended to the affidavit are copies of the charter of the defendant corporation, and of the opinion of the supreme court in Krecker v. Shirey, 163 Pa. St. 534. 30 Atl. 440. The objection taken in the affidavit to the service of the summons was at the argument admitted by defendant's counsel to be untenable. Do any or all of these allegations constitute such an answer to the plaintiff's demand as to disentitle her to judgment at this time?

"(1) As respects third parties, the acts of

de facto officers of a corporation are binding upon it. Ang. & A. Corp. § 287; Field, Corp. § 180. And equally binding are executed contracts entered into by a corporation de facto. 2 Mor. Priv. Corp. §§ 750-752. Neither do the illegal acts or the misbehavior of the members or officers of a corporation affect the validity of lawful contracts made with it. Reg. v. D'Eyncourt, 4 Best & S. 820 (non. Id. 116 E. C. L. 819); Association v. Martin, 13 N. J. Eq. 428. One who had given the defendant corporation his obligation could not escape liability thereon by reason of the acts charged against the officers and members of the same in this affidavit. Neither can the corporation avoid liability on that ground to one to whom it has given its obligation. There was nothing unlawful in the giving of them, so far as appears from this affidavit, and what is not alleged in an affidavit is taken not to exist. Lord v. Bank, 20 Pa. St. 384.

"(2) The allegation of want of opportunity for examining into the merits of plaintiff's claim is unavailing. Even where there has been a demand and a refusal of permission to inspect books or accounts in the possession or control of plaintiff (which can scarcely be said to be here alleged), the only proper course for a defendant to pursue is to show his inability to make an affidavit of defense without such inspection, and to ask for a suspension of the rule for judgment until an opportunity properly to inform himself is afforded. Lord v. Bank, supra; Leibersperger v. Bank, 30 Pa. St. 531; Allen v. Bank, 10 Wkly. Notes Cas. 188; Kelly v. Livingston, 1 Wkly. Notes Cas. 95.

"(3) That defendant is advised that the notes in suit appear to be, upon their faces, the individual notes of the makers thereof, and that the corporation cannot be held upon them, is not a denial of the fact averred in the statement, that the money they represent was loaned to the corporation, and that the notes were made in its behalf by persons duly authorized thereto. Under the procedure act of 1887, the affidavit of defense is made to the statement, not to the copy of the cause of action filed, and whatever averments contained in the statement are not denied by the affidavit must, upon a rule for judgment for want of a sufficient affidavit of defense, be taken as admitted. Ashman v. Weigley, 148 Pa. St. 61, 63, 23 Atl. 897; Insurance Co. v. Groff, 154 Pa. St. 200, 26 Atl. 63. I do not understand this to apply to averments so inconsistent with the cause of action as to be legally incapable of proof. But the fact that a note is so executed by an agent as not to disclose his principal, and therefore to make it prima facie his individual note,-and it seems clear to me that such is the appearance of these notes (Campbell v. Baker, 2 Watts, 83; Sharpe v. Bellis, 61 Pa. St. 69; Quigley v. De Haas, 82 Pa. St. 267; 1 Rand. Com. Paper. §§ 136, 137), does not, rights of parties misled by such appearance being out of the way, preclude proof that it was intended to bind, and

was in reality the note of, the principal (Seyfert v. Lowe, 7 Wkly. Notes Cas. 39; Markley v. Quay, 8 Wkly. Notes Cas. 145; 1 Rand. Com. Paper, § 136), for parol evidence is admissible, in case of doubt, to show that the corporation, and not its agent, was to be bound (Field, Corp. § 198). That is the averment of plaintiff's declaration here. The notes are said to have been executed, etc., ‘in behalf of the corporation. That means 'for' it. And. Law Dict. adverb 'for.' A note, however, executed by one 'for' another, is executed by the former as agent for the latter. Campbell v. Baker, supra; Wright v. Weakly, 2 Watts, 89. And see Hoffa v. Building Ass'n, Com. Pl. Berks Co. No. 1, Jan. term, 1891, M. L. D. And if it was done by one 'duly' that is, 'lawfully' (Insurance Co. v. Groff, supra, cases at page 201, 154 Pa. St., and page 63, 26 Atl.)-authorized and empowered, it is the note of the principal, and not of the agent. Not being denied by the affidavit, this averment must be taken as admitted. If it is true, however, it seems the plaintiff may sue the corporation in her own name. Says Act May 28, 1715 (1 Smith, Laws, p. 90): 'All bonds, specialties and notes in writing * * may by the person or persons to whom the are made payable, be assigned

same * *

*

**

* *

to such person or persons as shall think fit to accept thereof;' and 'it shall be lawful for the person or persons to whom the said bonds, specialties or notes are assigned in his or their own name, or names, to commence and prosecute his, her or their actions at law for the recovery of the money mentioned in such bonds, specialties or notes,' etc. The provision of section 8, that the assignment shall be under seal, and before two or more credible witnesses, applies, in terms, only to bonds and specialties.

"(4) Understood as intended to question the fact that the money represented by the $1,200 note was loaned to the corporation, the allegation that, if loaned at all, it was loaned to the seceding, and not to the loyal, members, is insufficient, as being an hypothetical, instead of a positive, statement, under Damm v. Ortlieb, 1 Wkly. Notes Cas. 576. On the other hand, if it was intended to intimate that the recipients had departed from the lawful purposes of the incorporation, its force as a defense is disposed of by what has been said above.

"(5) The fact that there was a report of a less indebtedness of the defendant corporation than that here sought to be enforced can scarcely be of any significance. It would hardly be supposed that the statement of a debtor to a third party that he owed the plaintiff nothing upon, or less than the face of, obligations of the debtor held by the plaintiff, would be evidence in the former's favor upon a trial. And, if it is not, it is of no avail in an affidavit of defense. Hendel v. Assurance Co., 2 Pa. Dist. R. 116, and cases there cited. A conspiracy, however, between the

makers of the notes in suit and the plaintiff, to subject the defendant corporation to a liability which does not, in law and equity, exist, is not averred in the affidavit. The only thing that is averred is an intention on the part of the plaintiff and the former officers of the corporation, in accepting service of the summons, to bring about a sheriff's sale of the defendant's property, etc. But, in the first place, that does not go to the consideration of the notes, or the right to enforce them; in the second place, it may be avoided by payment of what is due upon them, and, in the absence thereof, is an undoubted right of the plaintiff; and, finally, the objections to the service are withdrawn, if, indeed, the filing of an affidavit to the merits is not in itself a waiver of such objection, because that is an actual appearance. Hickernell v. Bank, 62 Pa. St. 146, 148; Morton v. Hoodless, 1 Miles, 46. In the absence of any positive denial that in good conscience the defendant owes the plaintiff the money she is seeking to recover, I am of the opinion that there is nothing in this affidavit that can amount to an available legal or equitable defense, and therefore the rule to show cause is made absolute."

Ritchie & Esher, Aug. S. Sassaman, and Cyrus G. Derr, for appellant. Philip S. Zieber and Baer & Snyder, for appellee.

PER CURIAM. The plaintiff's statement did allege that the money for which the notes in suit were given was lent to the defendant corporation, and that the persons signing were trustees of the defendant, and were duly authorized to execute and deliver the notes in question. These averments are not denied in the affidavit of defense. The matters which are there averred we do not regard as a defense to these notes. We are satisfied with the reasoning and authorities expressed and cited in the opinion of the learned court below, and that the conclusion reached was correct. Judgment affirmed.

WILLS-CONSTRUCTION-NATURE OF ESTate.

Testator declared it to be his desire that all his children receive "equal shares with each other," and gave to his son F. a certain farm and a tract of woodland. He directed that he should be charged $4,500 for the farm, and $200 for the woodland, and pay $50 annually to testator's wife. He gave to his son C. certain land, "reckoned to him" at $5,000, and also directed him to pay the widow $50 annually, and then declared that "the real estate bequeathed to my sons F. and C. shall be for their use and support during their natural lives, and, at their death, shall descend to their children, if any; if no children, then to descend to the brothers and sisters, and their children.' Devises to testator's daughters, coupled with similar charges, were all of absolute estates. Held, that F. took a fee simple in the land devised to him.

Appeal from court of common pleas, Berks county; G. A. Endlich, Judge.

Amicable action by Minnie S. Potts against James R. Kline to recover the purchase price of certain land sold by plaintiff to defendant. From a judgment for plaintiff, defendant appeals. Affirmed.

the

The opinion of the court of common pleas is as follows: "The question to be determined upon this case stated is whether the will of Lewis Potts, proved March 12, 1889, gave to his son Francis a fee simple in the land therein devised to him or not. The will declares it to be the desire of the testator that all his children receive 'equal shares with each other' in his estate. The devise to Francis is in the following terms: To my son Francis I give and bequeath the old Schrack farm. * * * In addition thereto, he * shall have a tract of woodland, * Koch tract. * * * My son shall be charged $4,500 for the farm, and $200 for the woodland. Francis shall pay annually to my beloved wife the sum of $50.' A subsequent clause, relating to the devises to said Francis and another son, Charles (the land given to whom was 'reckoned to him' at $5,000, and who was also directed to pay the widow $50 annually), directs that the real estate bequeathed to my sons Francis and Charles shall be for their use and support during their natural lives, and at their death shall descend to their children, if any; if no children, then to descend to the brothers and sisters and their children.' The devise above quoted, standing alone, manifestly gave Francis a fee simple, both by virtue of Act April 8, 1833 (2 Purd. Dig. p. 2103, pl. 11, § 9), and because of the charge made for its value (Fahrney v. Holsinger, 65 Pa. St. 388, 391). That being so, and it being, of course, conceded that an absolute gift in one part of a will may be cut down to a life estate by a subsequent clause (Shalters v. Ladd, 141 Pa. St. 349, 356, 21 Atl. 596), evidencing a clear intention to do so (Mickley's Appeal, 92 Pa. St. 514, 517), the question arises: What, in view of the whole will, is the effect of the provision last above quoted? It is the law of this state that any form of words sufficient to show that the remainder is to go by way of descent to those whom the law points out as the general or lineal heirs of the first taker will enlarge the estate for life of the first taker to an estate tail by implication (Potts' Appeal, 30 Pa. St. 170; Yarnall's Appeal, 70 Pa. St. 335),-a fee simple under our statute. The direction here is that, upon Francis' or Charles' death, the lands devised to either shall 'descend' to their children,' and 'if no children,' to the brothers and sisters and their children.' Technically, that word is one of purchase, and not of limitation. Oyster v. Oyster, 100 Pa. St. 538. But that it may be construed as a word of limitation where there is anything in the language of the testator clearly inviting such construction cannot be doubt

ful since the decision in Guthrie's Appeal, 37 Pa. St. 9. The testator uses the word three times in the same clause. The third time he manifestly means issue,-the whole line of succession; for there is no limitation over indicating anything short of that. Presumably, he used the same word in the same sense throughout the clause. Moreover, he says that, upon the death of the first takers, the lands devised to them respectively shall 'descend' to their children. The word 'descend' ordinarily denotes the vesting of an estate by operation of law in the heirs immediately upon the death of the ancestor (Dove v. Torr, 128 Mass. 38, 40); and its use is referred to in Haldeman v. Haldeman, 40 Pa. St. 29, 36, as indicative of the character in which the remainder-men are to take, viz. by inheritance from the first taker, and not as a new stock; thus pointing to the first taker as vested with an estate of inheritance, and to the construction of the word 'children' as a word of limitation. If, however, that word is used in the sense of heirs of the body or issue, then the phrase 'and if no children' imports an indefinite failure of issue (Armstrong v. Michener, 160 Pa. St. 21, 23, 28 Atl. 447), and the first takers have the entire fee. This interpretation of the provision in question, it may be added, is not only strengthened, but seems to be required, by the declared intention of the testator that all of his children shall take equal shares under his will, read together with the direction designed to serve that purpose, charging the sons, in the distribution, with the value of the fee of the land devised to them. The devises to the daughters, coupled with similar charges, are all of absolute estates, and the scheme equally requires that those to the sons should be likewise so regarded. And now, to wit, February 10, 1896, judgment is entered for plaintiff, upon the case stated."

J. Frederick Hartgen, for appellant. S. M. Meredith, for appellee.

Appeal from court of common pleas, Berks county; G. A. Endlich, Judge.

Amicable action in assumpsit by Charles S. Potts against Irvin J. Griesemer to recover the purchase price of certain land sold by plaintiff to defendant. From a judgment for plaintiff, defendant appeals. Affirmed.

The opinion of the court of common pleas is as follows: "The question to be determined upon this case stated is whether the will of Lewis Potts, proved 12th March, 1889, gave to his son Charles a fee simple in the land therein devised to him or not. The provisions of the will bearing upon this question are in part the same, and, as to the rest, entirely of the same effect, as those discussed in the opinion just filed in

ADJOINING LANDOWNERS-LATERAL SUPPORT.

An owner of land, who excavates to a depth lower than the foundation of a building on the adjoining lot, having failed to notify the owner of the building to protect his property, will be liable for the fall of the foundation wall if it is caused by failure to do anything which ordinary care and diligence in such operations point out as necessary to protect it, but will not be liable if the fall is caused by the wall's own insufficiency.

Appeal from court of common pleas, Berks county; G. A. Endlich, Judge.

Action by Catharine Spohn and others against Josiah Dives and others. Judgment for plaintiffs. Defendants appeal. Affirmed.

The following is the charge given to the jury per Endlich, J.: "Gentlemen of the Jury: This suit is brought to recover damages for an injury alleged by the plaintiffs to have been negligently done to their property by the defendants in the course of certain building operations pursued by the defendants upon their own property, adjoining that of the plaintiffs. There is no absolute duty upon any property owner to give support to his adjoiner beyond what is necessary to support the land itself in its natural state, which does not include the buildings upon it. While, therefore, one who excavates upon his own land, with the effect of withdrawing the support which it is bound to give to his neighbor's land in its natural condition, and causing part of it to slide or fall off, may be liable for that immediate injury, even without proof of negligence, there can be no recovery for injuries done to buildings by such excavations, except upon proof that the injury was caused by negligence. This suit, gentlemen, is brought for injuries to buildings, and is accordingly, in the plaintiffs' declaration, founded upon an allegation of negligence on the part of the defendants; and it is incumbent upon the plaintiffs to satisfy you by a fair preponderance of the evidence that there was negligence and that it caused the injury complained of. At this point it is proper for me to tell you what are the respective duties of adjoining landowners in cities in building and in making excavations upon their own properties close to those of their neighbors, with a view to the safety of the buildings erected thereon. In com

mon reason, and from necessity, their duties are reciprocal. The first builder owes to his neighbor the duty of putting up his building in such a way as not to subject the land of his neighbor to any unreasonable or unlawful burden. He is therefore bound to excavate to a proper and reasonable depth, to procure suitable materials, and to use due care and skill in the erection of his building, so that the adjoiner may, if he wishes to build, by proper care and skill and the use of the ordinary means, excavate not only up to his line, but also deeper than the foundation of the first building, without any danger thereto. It is not, however, the duty of the first builder to lay his foundation so deep that by no possibility can the adjoining owner go below its level; nor, in the nature of things, where he lays it upon the natural soil, can he be required so to fortify or stiffen the same as to make its falling away, unaided by the superincumbent weight of his wall, impossible in case the adjoining owner should excavate beyond the depth of the first foundation. When the adjoiner comes to excavate upon his land, going deeper than the first builder's foundation, it is his duty either to afford his neighbor an opportunity, by timely notice, to protect his property by underpinning, shoring up, and taking such customary means as are best adapted to secure the safety of his wall, or else himself to do that for the safety of the wall which its owner, following the usual and ordinary methods employed for such purposes, might have done. It follows, gentlemen, that where an injury has been done by one's excavations upon his own land to the building upon that of his adjoiner, the first question for the jury to determine is whether the wall injured was properly constructed in the first instance, whether its fall was due to its own insufficient construction. If the jury believe that the foundation wall of the plaintiffs fell because of its own insufficiency, either on account of the loose and wet condition of the soil underneath it or the small character of the stone used, then the verdict must be for the defendants.' Now, gentlemen, you have heard what the evidence on this subject has been. There has been considerable testimony as to the materials this wall was constructed of. the nature of the soil upon which it was placed, as to its being new earth, wet, soft, or dry, or sufficient to sustain an ordinary wall. All these matters you will take into consideration, and you will determine from them whether the fall or sagging of the plaintiffs' wall, whereby the injuries to their property were caused, was the fault of an original defect in the construction of the plaintiffs' wall. If so, of course, they cannot recover. But if you find for the plaintiffs on that question, then you will come to the next question; that is to say, was the fall or injury of the plaintiffs' wall due to any default or negligence on the part of v.34A.no.3-13

the defendants in giving it that protection which it was their duty to give it, in the absence of any invitation to plaintiffs to protect it themselves? The mere falling or sagging of the wall is not, in itself, proof of negligence in the making of such excavations. Negligence, gentlemen, in a case like this, is the want of ordinary care and diligence in conducting the excavations. The question, therefore, is whether, in conducting their operations, the defendants omitted to do anything which ordinary care and diligence in such operations pointed out as necessary to be done to protect plaintiffs' wall, and whether its fall was due to the omission of any such thing. Upon this point also, gentlemen, you will remember all that has been testified as to the precautions taken from time to time or simultaneously, and also the testimony as to what precautions, in a case like this, are ordinarily and properly and usually taken. You will decide in each of these respects what the truth is, according to the evidence, and whether the defendants have or have not done what was required by ordinary care and diligence from them in order properly to protect the plaintiffs' wall. If they did, then your verdict, of course, must be for the defendants; if not, then it must be for the plaintiffs to the precise extent to which the damaged condition of the plaintiffs' property has been proven to be the direct and natural result of the defendants' negligence. If you come to this point, that is to say, the inquiry as to what sum the plaintiffs are entitled to,-you will bear in mind that no injury existing before the operations of the defendants began, nor any that arose from any other cause, can enter into your computation. All the plaintiffs can claim, and all they do claim, in this case, is such a sum as will be sufficient to repair the injuries attributable to the defendants' negligence. Beyond that they cannot go. Gentlemen, you will remember the evidence on all these matters, and treat the case carefully, and return a verdict which will do justice to both parties."

Baer & Snyder and A. K. Stauffer, for appellants. J. H. Jacobs and H. P. Keiser, for appellees.