(265 Pa. 268) HAYS V. VIEHMEIER et al. (Supreme Court of Pennsylvania. 1919.) the trust be deemed active and William McClurg had only a life estate, there was a power of appointment in him to enable him to dispose June 21, of the land by will. The devise is to a trustee for the use and benefit of William McClurg, "his heirs," which WILLS 601(5)-DEVISE IN TRUST PASSING must mean "and his heirs," and if there were FEE-SIMPLE ESTATE. nothing further in the will, it would be very plain that William took a fee. It remains to be seen, therefor, whether there is anything in the following part of the will which would cut down his interest to a life estate. This may be done "if the subsequent language of the instrument unequivocally shows that such was the intention of the testator." Shower's Estate, 211 Pa. 302, 60 Atl. 791. In the first place it is to be observed that the testator in this paragraph of his will disposes of the whole of his farm. Under a will devising land in trust "for the use of my son, his heirs, so that same shall be free of all his debts, and to permit him to enjoy the profits," with power to trustee to convey at his request, and to invest proceeds upon a similar trust, and providing that on the death of son without issue his interest should vest in his surviving brothers, their heirs and assigns, the son took a fee-simple, and not a life, estate. Appeal from Court of Common Pleas, Al- He gives one-fourth to a trustee for William legheny County. Assumpsit by Cordelia E. Hays against W. F. Viehmeier and another, with case stated. Judgment for plaintiff, and defendants appeal. Affirmed. and his heirs. The other three-fourths he gives to each of his three sons with a provision that if they die without issue their shares shall go to the others and their heirs. This seems to indicate a clear intention on his part to dispose of the whole of this farm and that the share of William should be in fee. The tes Case stated to determine marketable title tator then makes provisions which, taken by to real estate. Shafer, P. J., filed the following opinion in the court of common pleas: The action is assumpsit for the purchase money of lands agreed to be sold by the plaintiff to the defendants, and the parties have stated the case in the nature of a special verdict, for the opinion of the court. The title of the plaintiff is derived from the devise of one William McClurg, who died in 1890, and the sole question in the case is the effect of a clause of the will of John McClurg, probated in August, 1854, a copy of which is made part of the case stated. By this will the testator gave to three of his sons an undivided fourth interest in his farm, and the other undivided fourth he gave to John S. Hamilton "for the use and benefit of my son William McClurg, his heirs, to be held in trust for the benefit of William so that the same shall be free from all debts and liabilities of said William McClurg and to permit said William McClurg to enjoy the usufruct and profits thereof, and the said trustee is hereby authorized and empowered to sell and convey the said undivided fourth of said farm or premises at the request of said William McClurg and to invest the proceeds of any such sale upon similar trust in other lands or to and for the payment of the interest thereof to said William McClurg on his own receipts as the said trustee shall deem such sale, investments and payments most expedient for the benefit of said William McClurg." The will further provides that on the death of either of the other three sons without lawful issue the share of such deceased should be vested in the survivor or survivors of them, their heirs and assigns. The question submitted for the determination of the court in the case stated are: (1) Whether the trust was an active one in which William McClurg had only a life estate "and at his death the same descended to his heirs generally"; or (2) whether the trust was passive, giving William McClurg a fee simple with power of disposing of the land by will; or (3) whether, if themselves, would appear to make a valid spendtrust to him were only for his life. thrift trust in William if the estate given in Such a trust cannot be created for one who has a fee. Keyser's Appeal, 57 Pa. 236. We have then a case where a testator appears to be endeavoring to do two things which are incompatible with each other, namely, to give his son the land in fee and at the same time to protect it from his creditors; and the question is whether the provisions restricting the power of William McClurg over the land are such and so unequivocally expressed as to indicate that the testator did not mean to give him a fee. In Shower's Estate, supra, there was no express gift in fee, but the gift of the income without a limitation over of the principal would have indicated a gift of the principal itself, which was held, however, not to be the effect of the will, because the testator in that case has expressly declared that the beneficiaries were to enjoy the interest only and in no way to impair or damage the principal. This was certainly an unequivocal declaration that the gift of the income was not to be interpreted as a gift of the principal. In the present case, however, we have it expressed in proper technical words that the gift is in fee. There is nothing to show that the testator did not mean this except the statement that it was not to be liable to the debts and liabilities of William. While the legal effect of such a provision, if valid, would be to cut down the estate given to a life estate, there is nothing to indicate that the testator knew that or intended it, and nothing to indicate that William was not to enjoy the estate as fully as any other owner, except that it was not to be liable for his debts, and that, if it was sold, the trustee should supervise the investment. We are of opinion that this is not a sufficiently unequivocal declaration of a different intention to set aside the plaintiff's technical and unequivocal gift of a fee, and that we have here the gift of a fee with an ineffectual attempt to make it free from the debts of the devisee. (108 A.) As to the three questions submitted in the] his failure to instruct them adequately as to case stated, we are of opinion that William the weight to be given the testimony introducMcClurg took a fee, and not a life estate, that ed by the commonwealth for the purpose of he had power of disposing of the land by will, proving motive on the part of the defendant; and that there is nothing to show any power for no request was asked for such instrucof appointment in him if he had only a life tion. Com. v. Caraffa, 222 Pa. 297, 71 Atl. estate. It is therefore ordered that judgment be en-17; Com. v. Pacito, 229 Pa. 328, 78 Atl. 828. tered for the plaintiff for the amount agreed upon, to wit, $4,320. Argued before BROWN, C. J., and [2] The admission of the testimony of which complaint is made by the first three assignments was not error, as it tended to show the prisoner's state of mind and his malicious propensities shortly before the killing. Though the threats were not made to Brady, his victim, they were evidence of an intention of the prisoner to kill somebody, and were therefore admissible as showing his malice. Hopkins v. Com., 50 Pa. 9, 88 Am. Dec. 518. PER CURIAM. This judgment is affirm the judgment is affirmed, and the record reThe assignments of error are overruled, ed on the characteristically clear and sat-mitted for the purpose of execution. isfactory opinion of the learned president judge of the court below directing it to be entered. Willis F. McCook and B. J. Jarrett, both of Pittsburgh, for appellee. MECHANICS' LIENS 160-LIEN STRICKEN Where record shows no writing signed by landlord to effect that the "improvement was in fact made for him for his immediate use and benefit," within Act June 4, 1901 (P. L. 432) § 2, but the lease attached to the claim especially contained lessee's stipulation that in any contract he might make for installation of a heating system there should be inserted a clause waiving contractor's right to file a me 2. HOMICIDE 158(3)-EVIDENCE OF THREATS chanic's lien, a lien for installing a heating ADMISSIBLE. Threats made by defendant, although not to the victim of a homicide, were admissible as evidencing defendant's intention to kill somebody, and hence as showing malice. Appeal from Court of Oyer and Terminer, Fayette County. system filed against leased building would be stricken. Appeal from Court of Common Pleas, Philadelphia County. Proceeding to enforce mechanic's, lien by Charles J. Williams against Oliver H. Bair, owner or reputed owner. From an order. Lewis Page was convicted of murder in the making absolute a rule to strike off a lien, first degree, and he appeals. Affirmed. Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, WALLING, SIMPSON, and KEPHART, JJ. Wooda N. Carr and Frank M. Lardin, both of Uniontown, for appellant. plaintiff appeals. Affirmed. and Argued before Henry Saxe and Alexander N. Rubin, both S. J. Morrow, Dist. Atty., of Uniontown, of Philadelphia, for appellant. for the Commonwealth. PER CURIAM. [1] The appellant was convicted of murder of the first degree; the ingredients necessary to constitute that of fense having been proved to exist. The trial judge charged the jury fully upon the law applicable to the facts, and there is no merit in the fourth assignment, complaining of Horace Michener Schell, of Philadelphia, for appellee. PER CURIAM. The mechanic's lien which the court below struck off was filed against a building and curtilage owned by the appellee, but in the possession of a tenant under lease from him, at the time the heating system was installed by the claimant. The For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes contract for the installation of the system | gaged in business, its road being operated was between the tenant and the claimant by defendant under lease, and denied that alone, and nothing is to be found in the under the terms of the lease defendant lease from the appellee to his tenant to ex- was liable for the amount of the excess profempt the claim of the appellant from the its tax. requirement of section 2 of the act of June The court of common pleas entered judg4, 1901 (P. L. 432), that to be valid it mustment for want of a sufficient affidavit of deappear in writing, signed by the landlord, fense for the reasons stated in the opinion that the "improvement was in fact made by Audenried, P. J., filed September 26, 1919, for him for his immediate use and benefit." as follows: This does not appear. On the contrary, it appears from the lease between the appellee and the tenant, attached to and made part of appellant's claim, that the tenant expressly stipulated that in any contract it might make for the installation of a heating system there should be inserted a clause waiving the contractor's right to file a mechanic's lien. The right of the appellee to the relief given him by the court below was so clear that it could not have hesitated to strike off the lien, and its order doing so is affirmed, at the costs of the appellant. (265 Pa. 325) There can be no doubt that the plaintiff was bound to pay the income tax and the war excess profits taxes assessed against it for the year 1917 by the federal government. By clause third of the lease, under which defendant occupies and operates the plaintiff's property, the former agreed to pay all taxes and assessments instrument, for the payment of which taxes the upon the rent reserved by the latter in that plaintiff would otherwise be liable. The defendant failed to pay the war excess profits tax assessed against the plaintiff for the year 1917, and it has been paid by the plaintiff, which brings this action to secure reimbursement for that which it has thus expended. It was held by our Supreme Court in North Pennsylvania R. R. Co. v. Phila. & Reading Ry. Co., 249 Pa. 326, 95 Atl. 100, that a covenant by the lessee to pay all taxes imposed upon the rent payable PHILADELPHIA, G. & N. R. CO. v. PHIL- under such a lease as that with which we are Appeal from Court of Common Pleas, Philadelphia County. Assumpsit by the Philadelphia, Germantown & Norristown Railroad Company against the Philadelphia & Reading Railway Company. From an order making absolute a rule for judgment for want of a sufficient affidavit of defense, defendant appeals. Affirmed. Assumpsit to recover $11,976.75 for reimbursement on account of corporation excess profits tax assessed plaintiff by United States government. Defendant, by its affidavit of defense, claimed that plaintiff should not have paid any excess profits tax because it was not en here concerned obligated it to pay the United States income tax assessed against the lessors whose annual income consisted of the rental payable by the lessee. In Philadelphia City Passenger Ry. Co. v. Phila. Rapid Transit Co., 263 Pa. 561, 107 Atl. 329, it was decided that in this respect the war excess profits tax stood upon the same footing with the income tax on net profits. This case is ruled by this precedent. Further discussion of the subject is not necessary. Rule for judgment is affirmed. Defendant appealed. Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, WALLING, SIMPSON and KEPHART, JJ. Abraham M. Beitler and Charles Heebner, both of Philadelphia, for appellant. Jas. Wilson Bayard, of Philadelphia, for appellee. PER CURIAM. This judgment is affirmed on the opinion of the court below making the rule for it absolute. The judgment in Philadelphia City Passenger Railway Co. v. Philadelphia Rapid Transit Co., 263 Pa. 561, 107 Atl. 329, was affirmed by this court in an opinion filed February 17, 1919. Judgment affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (94 Conn. 269) (108 A.) CITY OF NEW LONDON v. HOWE. (Supreme Court of Errors of Connecticut. Jan. 8, 1920.) 1. LICENSES 1-REGULATORY OR REVENUE CHARACTER OF LICENSE ORDINANCE DETERMINED BY ITS LEGAL EFFECT. In determining whether a city ordinance exacting license fees from auctioneers is a true regulatory measure, or merely a revenue measure masquerading in such guise, regard must be had to the legal effect of the ordinance rather than to its phraseology, to its essence as well as to its form. 2. LICENSES 1-LICENSE ORDINANCE AS TO AS EXACTING FEES OUT OF PROPORTION TO PURPOSE OF REGULA AUCTIONEERS INVALID AS EXACTING TION. Ordinance of city of New London exacting as license fees one-quarter of 1 per cent. on the gross amount of all sales of real estate and vessels, and 2 per cent. on the gross amount of all sales of other. property sold at public auction by auctioneers, though enacted as a regulatory measure, held invalid in such separable parts as in fact an attempt to produce revenue in exercise of the power of taxation; the payments imposed being out of proportion to any lawful purpose. 3. LICENSES 26-MUNICIPAL CORPORATIONS 111(4)-LIABILITY ON BOND GUARANTEEING PERFORMANCE OF LICENSE ORDINANCE INVALID ONLY IN PART. The obligors in a bond given by a public auctioneer to a city for faithful performance of a license ordinance in fact invalid in part as exacting excessive fees would remain liable for faithful performance of the ordinance in all its valid parts; the illegal provisions being separable, and therefore not invalidating the whole ordinance. 4. MUNICIPAL CORPORATIONS 111(4)-PORTION OF ORDINANCE LICENSING AUCTIONEERS ILLEGAL AS AUXILIARY TO IMPROPER REVEN UE EXACTION. Requirements of ordinance of city of New London, licensing public auctioneers, that such auctioneers keep accounts of sales and file copy with the city treasurer held merely incidental to the illegal exaction by the ordinance, under the guise of a regulatory measure, of excessive fees, so as to fall with such illegal part of the ordinance. Case Reserved from Superior Court, New London County; James H. Webb, Judge. Action by the City of New London against Thomas Howe. On reservation upon demurrer to the complaint for the advice of the Supreme Court of Errors. Superior court advised to render judgment sustaining demurrer to complaint. auctioneer, of a percentage on the gross amount of his sales, brought to and reserved by the superior court in New London county upon a demurrer of the complaint for the advice of this court. The complaint states the following facts: The defendant was an auctioneer licensed under an ordinance of the plaintiff city made a As a condition prepart of the complaint. cedent to the issuing of a license to him, he had executed and delivered to the city a bond such as the ordinance prescribed. In that month he sold at public auction within the city personal property belonging to an employer in the amount of $250,000 and real estate belonging to the same party to the amount of $80,000. He never filed with the city treasurer a report of such a sale, and has never paid the sum of $5,200 which the city claims to be due it under the ordinance by the reason of the sale, or any part thereof. The ordinance, omitting its formal portions, is as follows: "Section 1. Suitable persons may be licensed by the court of common council as auctioneers to sell property at public auction within said city. "Sec. 2. Such license shall continue for the term of one year from the date thereof, unless forfeited for a violation of the provisions of this ordinance. "Sec. 3. Every person so licensed shall pay to the treasurer of the city of New London, for the use of said city, before he shall receive a certificate of license, the sum of twenty-five dollars, and shall also execute a bond to the city, with two sureties satisfactory to the mayor, in the sum of five hundred dollars for the faithful performance of all the provisions of this ordinance. "Sec. 4. Every such auctioneer shall keep an accurate account of all sales of property made by him including the nature of the property, the name of the owner, the place, date and amount of sale, and shall file with the city treasurer, on the first Monday of each month, a true copy thereof in writing, signed and sworn to by him, and shall faithfully account to said treasurer monthly for all moneys due said city upon said sales. "Sec. 5. There shall be due from and payable to said city, by such auctioneers, the sum of one-quarter of one per cent. on the gross amount of all sales of real estate and vessels, and two per cent. on the gross amount of all sales of other property sold by them at public auction, and they shall be accountable to said city therefor. "Sec. 6. Every auctioneer who shall refuse or neglect to comply with any of the provisions of this ordinance, or who shall receive secret bids from the owner or agents of property being sold, or falsely pretend to have received any bid, or knowingly receive a bid from, or dispose of, or sell the property to any person not a bona fide bidder, or who shall be guilty of any other fraud or deception at any auction sale shall forfeit his license and shall not again be licensed as an auctioneer. Action to recover moneys alleged to be due the plaintiff under an ordinance of the city of New London relative to auctioneers and requiring payment by the defendant, a licensed "Sec. 7. Every person, not being licensed For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 108 A.-34 and qualified according to the provisions of this [ sworn detailed report thereof to the city ordinance, or by other lawful authority, and not having a certificate, who shall sell at public auction any property in this city, shall be guilty of a misdemeanor, and shall pay a fine of not less than five nor more than thirty dollars, to the treasury of said city." Other facts are sufficiently stated in the opinion. Philip Z. Hankey and Morris Lubchansky, both of New London, for plaintiff. Christopher L. Avery and Charles B. Waller, both of New London, for defendant. PRENTICE, C. J. (after stating the facts as above). The complaint contains two counts, the first upon a city ordinance, and the second upon a bond given by the defendant to the city in compliance with the ordinance. The first seeks to recover the sum of $5,200 claimed to be due as an auctioneer's fee computed in accordance with the terms of the ordinance, and the second for damages resulting from a breach or breaches of the bond's conditions. The demurrer runs to the complaint as an entirety. The stipulation filed by the counsel, however, agrees that it may be regarded as a demurrer to each count separately. Counsel appear to be in accord in their views to the extent of agreeing, on the one hand, that the General Assembly has in the city's charter granted to it authority to regulate sales by auction within its limits, and as incidental to such regulation to license auctioneers and require of them reasonable license fees, and, on the other hand, that the city has no right to utilize its authority to license and collect license fees as a revenue producing measure, and is not otherwise empowered to resort to such means of obtaining a revenue. The question presented by the demurrer as addressed to the first count thus becomes resolved into one as to whether or no the sales percentage payments which the ordinance requires to be made either purport upon the face of the ordinance to be made as license fees, or, if they do so purport, whether they in reality partake of the character of true regulatory license fees or of something quite different. In answering the first phase of this twofaced question it is significant to notice that nowhere in the ordinance are these payments referred to as being license fees. Section 3 describes a payment of $25 as one of the conditions precedent to the issuance of a license certificate. The other condition is the giving of a bond. By the payment of such fee and the filing of such bond the applicant becomes entitled to receive a certificate, and, having received it, to act as auctioneer. The next two sections prescribe the duties of persons so licensed. They are to keep accounts of their sales with a description of the property sold, name of the owner, place and date of treasurer, and pay to the latter a certain defined percentage of the gross sales thus shown. Nothing is said in these sections or elsewhere in the ordinance to suggest that the payments were required as supplemental to the $25 fee paid to secure the license certificate or as being part of the fee. For aught that the ordinance expresses or its language indicates, the assumption that they were exacted as a convenient method of raising revenue is quite as well founded as any other. The exigencies of the present case demand that the city treat these provisions of the ordinance as made in the exercise of the police power of regulation, and not in the exercise of the taxing power, and that appears to be the only reason for so regarding them. [1] If, however, the language of the ordinance is to be construed as the city would have us construe it, the alternative phase of the question presents itself for consideration, to wit: Are the prescribed sales percentage payments in reality true regulatory license fees or something quite different masquerading in that guise. In answering this question regard must be had to the legal effect of the ordinance rather than to its phraseology; to its essence as well as its form. Conlan, 65 Conn. 478, 484, 33 Atl. 519, 31 L. R. A. (N. S.) 55, 48 Am. St. Rep. 227; State v. Cederaski, 80 Conn. 478, 483, 69 Atl. 19. State v. [2-4] The test to be applied in determining whether or not a fee prescribed under the name or guise of a license fee is one in fact has been under consideration by us in several cases. Welch v. Hotchkiss, 39 Conn. 140, 142, 12 Am. Rep. 383; City of New Haven v. New Haven Water Co., 44 Conn. 105, 108; State v. Glavin, 67 Conn. 29, 33, 34 Atl. 708; State v. Cederaski, 80 Conn. 474, 481, 69 Atl. 19. Giving to the most comprehensive language used in any of these cases the most liberal construction and to the test prescribed the widest latitude of which it is capable, it still appears that the payments imposed by this ordinance are so large and so out of proportion to any lawful purpose to which they could be applied in the exercise of the power of regulation that there is no escape from the conclusion that the object of that part of the ordinance under review was not regulation in the exercise of the police power, but production of revenue in the exercise of the power of taxation. The fact that it was capable of yielding in a case like the present the sum of $5,200 for a single sale and in cases of presumably not infrequent occurrence would call for the payment of very substantial sums furnishes convincing proof that something more than a mere regulation of the business and payment of the expenses incident thereto or involved therein was aimed at. The bond for the breach of which the second count seeks recovery is conditioned upon |