manage his business affairs. He had transferred the whole of his personal property, recently acquired by inheritance, in exchange for an interest in a manufacturing corporation of which he had no knowledge whatever. He knew neither the value of the stock he was to receive, how much he was to get, nor how much he was to pay for it. The proceeding was instituted by disinterested parties manifestly from proper motives and solely to preserve the appellant's estate for his own good.

Since the act gives to the party against whom the proceedings are taken the right to demand a trial by jury, it does not violate the provision of the Declaration of Rights that "trial by jury shall be as heretofore and the right thereof remain inviolate." The decree is affirmed.

The question as to whether in partition certain parties were barred by Act April 22, 1856 (P. L. 532), cannot be raised for the first time on appeal.

2. INSURANCE-LIFE POLICY-BENEFICIARIES. A widow with one child married a widower with six children and had two children. He took out a policy of insurance payable to his wife in trust for herself and their children. Held, that the children by the first wife were entitled to share in the proceeds of the policy. 3. SAME-CONSTRUCTION OF POLICY.

The terms of a policy of life insurance will be liberally construed in favor of those, as beneficiaries, who may naturally be presumed to have been the special object of the bounty of the insured.

Appeal from Court of Common Pleas, Cumberland County.

Bill by Charles L. Lehman against David P. Lehman. From a judgment of the Superior Court affirming a decree dismissing the bill plaintiff appeals. Affirmed.

Rice, P. J., filed the following opinion in the court below: "A suit was instituted in the court of common pleas sitting in equity for the partition of certain real estate, the legal title to which, at the time of her death, stood in the name of Elizabeth A. Lehman, the widow of David P. Lehman. The proceedings resulted in a sale of the property, and a report by the master awarding the proceeds to the appellant and his brother, they being her children by David P. Lehman, deceased. Exceptions to his conclusions of law were sustained and the report referred back to him with direction to make distribution in accordance with the opinion of the court, which was that each of the appellees, they being children of David P. Lehman by a former marriage was entitled to share equally with the appellant. Exceptions were filed by the appellant to the subsequent decree confirming the report made by the mas

ter pursuant to the foregoing direction, and after these were dismissed this appeal was taken.

"It appears from the master's report that David P. Lehman by his first marriage had six children; that after the death of his first wife he married Elizabeth Moore, the decedent, and had by her two children, who were the plaintiff and defendant in the partition suit; that at the time of this marriage Elizabeth Moore was a widow and had one child by her former husband; and that all of these three sets of children were living when the distribution was made. After his second marriage David P. Lehman took a policy of insurance upon his life for $5,000 in which the company agreed as follows: 'Said company promises to pay the sum insured to Elizabeth A. Lehman, his wife, in trust for herself and their children in equal shares, their guardian, executors, administrators or assigns, within sixty days after due notice and proof of the death of the said David P. Lehman.' Upon his death the widow received this sum with interest, after making proof of death in which she stated: 'Said policy having terminated by his death on September 26, 1890, is payable to me in trust for myself and our children in equal shares.' We mention the fact, but in view of the foregoing we do not regard it as material, that in the receipts she gave the company nothing was said as to the trust. She received the money in October, 1890, and about a month later purchased the house and lot in question and occupied them as a residence until her death in September, 1902. The price paid was $1,500, and the master says that 'it was conceded by all parties before the master that this money came from the proceeds of the insurance policy.' There is no express evidence as to what she did with the balance of the insurance money. It was stated at bar that she left personal property to the amount of $2,642.55 as shown by the inventory and appraisement filed by her administrator, but whether or not this was made up wholly or in part of the insurance money is a matter concerning which the record before us is silent. The master reported no such finding, and no evidence to support a finding that any portion of the insurance money was paid to the other beneficiaries.

"Appellant's counsel claims that the questions involved in this appeal are: First. Does the beneficiary clause in the policy of Lehman include only the children of the second wife or does it include the children of both wives? Second. Is the limitation prescribed by the act of April 22, 1856 (P. L. 532) a bar to recovery by the children of Lehman by his first wife? Third. Should the fund be distributed to Lehman's children by both wives? But the appellee's counsel insist that the first was the only question ever raised or discussed in all the proceedings before the master and the court, and

that the objection that the right to enforce the trust was barred by the sixth section (page 533) of the act of 1856 was not raised by exception or otherwise. An examination of the proceedings, including the master's first report, the exceptions thereto filed by the appellees, the opinion of the court sustaining the exceptions and directing how distribution should be made, and the exceptions filed by the appellant to the decrees confirming the master's second report confirm us in the conclusion that this position of the appellee's counsel is well taken. The proceedings before the master were free from dispute as to the facts, and it is apparent that they brought to his attention only those facts which they then regarded as material in the determination of the single question of law upon which they conceived the case turned. No testimony was taken, but his findings of fact were based on their concessions made at the hearing, and none of them was excepted to or questioned in the court below, so far as this record shows, and none of them was changed in his final report. The master stated in his discussion of the case that the appellee's claim was that the decedent received the insurance money in trust for all the children of David P. Lehman, and as the money was used by her in the purchase of the property, they were entitled to share equally with the children of Elizabeth in the proceeds of sale; that, on the other hand, the appellant and his brothers; the two children by the second wife, contended that the trust was limited to them.

"After thus setting forth the respective contentions of the parties, which, as we have seen, included no reference to the act of 1856 or any other act of limitation, and stating that the child Elizabeth by her first husband made no claim to any share, the master said: "Upon the construction of the clause in the policy depends the determination in this case.' In disposing of the exceptions to his report, none of which disputed the correctness of the master's presentation of the opposing contentions of the parties and the question of law growing out of them, the court likewise treated this as the question upon which the case turned, and this conclusion was not criticised, especially in the exceptions subsequently filed by the appellant. So far as the record shows no suggestion was made by the court, the counsel, or the master, that the right to enforce the trust was barred by the sixth section of the act of 1856, or that that question was involved in the case. Under the special circumstances of the case this question, if it was to be raised at all, should have been raised at a time when possibly it might have been met by evidence, and should not have been held in reserve until the case came into the appellate court. We are not unmindful of the decisions which hold that the act of 1856 is a statute of repose and need not be specially pleaded. But these decisions do not

militate against the conclusion that, as the record shows clearly that the distribution proceedings were conducted before the master and the court upon the theory, acquiesced in by all the parties, that the proper determination of the case depended upon the construction to be given to the beneficiary clause, the case ought to be disposed of here upon the same theory. See Rickett's Appeal, 9 Sadler, 247; Henry v. Zurflieh, 203 Pa. 440, 53 Atl. 243; Safe Deposit Bank v. Schuylkill County, 190 Pa. 188, 42 Atl. 539; Taylor v. Sattler, 6 Pa. Super. Ct. 229; Troubat Ave., 10 Pa. Super. Ct. 27; Gowen v. Glaser, 2 Sadler, 250.

"There is nothing in the context to aid the appellant's construction of the words 'their children' in the beneficiary clause of the insurance policy. Nor are any circumstances shown which it may be inferred would have been likely to influence the insured to prefer one set of his children over the other. The suggestion that naturally he would be concerned especially for the children of his second wife because they were younger would not be without force if there were any evi dence that, at the time he took the policy, the children by his first wife were not dependent members of his household, or that they were adults, or that all of them had reached an age when it might be presumed they were self-supporting or soon would become so. But the record contains no evidence of that kind, and there is no ground for surmise even, that there was such a difference between the ages of his youngest children by his first wife and the age of his oldest child by his second wife as would naturally incline him to discriminate in favor of the latter. There is also a total absence of evidence that, at the time the policy was issued, the children of his first wife owned any property in their own right or that the insured had made or had the ability to make any other provision for them; and it is not asserted that he left a will providing for such disposition of his property as would equalize them with his other children if the appellant's construction of the beneficiary clause be adopted. In short, there is nothing in the context, or in the circumstances under which the policy was taken, or in the subsequent conduct of the insured, to aid the appellant's contention that the insured intended to exclude his children by his first wife. It must be sustained, if at all, because that is the absolute meaning of the words used in the beneficiary clause.

"But the words 'their children' may be used in one connection to designate the children having a common parentage on both sides and in another connection to designate the children of the husband and the children of the wife spoken of. Neither law nor common usage has affixed such unvarying meaning to the word 'their' as to prevent its appropriate use for the latter purpose. In determining the sense in which they were used

in a contract or in a will regard must be had to the subject-matter. Hence in a case cited and analyzed in the opinion filed by the learned judge below, where it appeared that a testator devised land to his son Jacob and Eliza his wife, and directed that it should be 'equally divided among their children at their death,' it was held that the children of Jacob by a former wife were included. Luce v. Harris, 79 Pa. 432. Although Justice Paxson alluded to the fact that the second wife brought them up as her own, yet it is quite apparent from the opinion as a whole that the decision was put on the ground that there was nothing on the face of the will to indicate any intention on the part of the testator to disinherit the children of his son Jacob by his first wife, nor anything to show that they were not proper objects of the testator's bounty. 'When the testator provides that "the land given to Jacob and wife shall be equally divided among their children at their death," he evidently intended to include the children of Jacob by his first wife, who were also the stepchildren of his second wife. In order to confine the generality of the words "their children" to those born of the second marriage and thus disinherit those born of the first marriage, such intention must clearly appear from the face of the will. It must be manifest by its express terms, or by necessary implication. Neither exists in this case.'

"We agree with the learned judge below that this case goes far toward ruling the question for decision here, but even if it does not conclusively rule the case at bar, It is authority and a very strong one for the proposition that the words 'their children' have no such fixed and unvarying meaning as to compel the conclusion that the insured intended to exclude his children by his first wife. Stigler's Executrix v. Stigler, 77 Va. 163, which involved the construction of a life insurance policy 'for the benefit of his wife and their children' may be cited for the same purpose. So in Koehler v. Life Insurance Co., 66 Iowa, 325, 23 N. W. 687, where the policy provided that the proceeds should be paid to his wife, Malien Koehler and children,' the construction was adopted which would include the children of the insured by a former marriage. To the same effect is McDermott v. Life Insurance Co., 24 Mo. App. 73. Dorin v. Dorin, L. R., 7 H. L. 568, is cited by the appellant's counsel as ruling that a gift by will to 'my wife and her children' included only 'her children to the testator.' That is quite different from restricting the generality of the language used by a donor in a provision for his children so as to exclude part of them. So in Holsen v. Rockhouse, 83 Ky. 233, it was held that a power of appointment 'among our children' given by will to the testator's wife did not include her children by a former husband, but the reasoning of the decision ren

ders it by no means certain that the court would have construed the clause so as to exclude the testator's children by a former wife. Evans v. Opperman, 76 Tex. 293, 13 S. W. 312, gives more support to the appellant's position than any of the other cases cited by his counsel, but that also is easily distinguishable from the case at bar. In a doubtful case the courts favor that construetion of a will which, consistently with the words of the instrument, will result in a distribution in conformity to the general rules of inheritance, rather than one which will disinherit an heir at law. Hauer's Est., 16 Pa. Super. Ct. 257. In such case, it has been said, 'the heir has the advantage, of those claiming equality among children.' Malone v. Dobbins, 23 Pa. 296. A policy of life insurance, although not a testament, is, like the provisions of a will, to be liberally construed in favor of the ones who may naturally be presumed to have been the special objects of bounty. McNally v. Metropolitan Life Insurance Co., 16 Pa. Super. Ct. 111, and cases there cited. See, also, Scull v. Etna Life Insurance Co. (N. C.) 43 S. E. 504, 60 L. R. A. 615, 95 Am. St. Rep. 615

"Here the insured, in making a provision-to take effect upon his death for those dependent upon him, used words which, without violence to the sense in which they are commonly used, may be construed to include all those coming equally within the reason of the provision, and there is nothing in the context or in the extraneous circumstances from which the intention to exclude any may be safely inferred. He must have known that his words were susceptible of this construction, and therefore it may be safely assumed that if he had intended to restrict the benefits of his provision to his children by his second wife he would have been careful not to choose words that were easily susceptible of a broader construction. It may be said that unless the generality of the word "their" be confined by construction, the child of the widow by her former husband would be let in on the same plane with the donor's own children. We need not discuss that question because she has disavowed the right to claim. We remark, however, that there is much force in the suggestion of the appellee's counsel, that it is a more natural construction to include the second wife's child by her first husband than to exclude the husband's children by his first wife.

"Upon a full consideration of the case from every standpoint we are of opinion that the court was clearly right in holding that the latter class of children were not intended by the insured to be excluded from the benefits of the provision that be made for those dependent upon him.

"Decree affirmed and appeal dismissed at the costs of the appellant."

Argued before FELL, BROWN, MESTREZAT, POTTER, and ELKIN, JJ.

G. Wilson Swartz, for appellant. F. E. Beltzhoover and H. M. Leidigh, for appellee.

PER CURIAM. The decree is affirmed on the opinion of the learned President of the Superior Court.

(215 Pa. 429)

HOUSE OF REFUGE v. LUZERNE
COUNTY.

(Supreme Court of Pennsylvania. May 24, 1906.)

STATUTES-TITLE OF ACT.

Act May 11, 1901 (P. L. 158) entitled, "An act to provide for the maintenance and instruc tion of children committed to houses of refuge which are not exclusively under state control,' provides that one-half of the expense thereof shall be borne by the county from which a child is received. Under Act March 2, 1827 (P. L. 76) counties were at the time of the passage of the act of 1901, liable for such expense. This latter act was not repealed by Act Jan. 10, 1867 (P. L. 1371), such act being found by the courts to be unconstitutional. Held, that the act of 1901 was not unconstitutional because there was no reference in the title to the provision requiring the counties to bear such expense, it not imposing any additional liability on the counties.

Appeal from Court of Common Pleas, Luzerne County.

Action by the House of Refuge against the county of Luzerne. From an order dismissing exceptions to report of referee, plaintiff appeals. Reversed.

Argued before MITCHELL, C. J., and MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

John G. Johnson, N. Dubois Miller, and H. A. Fuller, for appellant. William S. McLean, for appellee.

POTTER, J. The House of Refuge brought suit against Luzerne county to recover the sum of $4,396.32 with interest, being onehalf the expense of maintaining and instructing certain children received from that county, who were committed to the House of Refuge, and became inmates thereof.

The action was based upon the act of May 11, 1901 (P. L. 158) entitled, "An act to provide for the maintenance and instruction of children committed to houses of refuge which are not exclusively under state control." And it provides that whenever a child shall be committed to a house of refuge which is not exclusively under state control and becomes an inmate thereof, one half of the expense of maintaining and instructing such child shall be borne by the county from which the child shall have been received, and the remaining half shall be paid out of appropriations made from time to time by the state. The act further provides a method of presenting the bills and collecting the amount due by the several counties. The case was referred to a referee, who found as a fact that if the plaintiff is entitled to recover at all, the judgment should be for $4,

339.33, with interest. But he reached the conclusion of law that the act of May 11, 1901 (P. L. 158) was unconstitutional because the subject of the act, or at least so much of it as was supposed to place an additional burden on counties, was not clearly expressed in its title, and therefore the plaintiff was held not to be entitled to recover. Exceptions to the referee's report were overruled by the court, and judgment entered for defendant, from which judgment plaintiff has appealed.

The sole question raised by this appeal and of the act of 1901. The House of Refuge, as assignments of error is the constitutionality originally incorporated by act of March 23, 1826 (P. L. 133) entitled "An act to incorporate the subscribers to the articles of association for the purpose of establishing and conducting an institution for the confinement and reformation of youthful delinquents, under the title of the 'House of Refuge,'" was an association of citizens, as stated in the preamble, "formed in the city and county of Philadelphia for the humane and laudable purpose of reforming juvenile delinquents and separating them from the society and intercourse of old and experienced offenders, with whom, within the prisons of said city, they have been heretofore associated, and thereby exposed to the contamination of every species of vice and crime."

The act of 1826 (P. L. 135) § 6, empowered the managers at their discretion to receive into the House of Refuge "such children who shall be taken up or committed as vagrants, or upon any criminal charge, or duly convicted of criminal offenses, as may be, in the judgment of the court of oyer and terminer, or of the court of quarter sessions of the peace, of the county, or of the mayor's court of the city of Philadelphia, or of any alderman or justice of the peace, or of the managers of the almshouse and house of employment, be deemed proper objects." This act was limited to Philadelphia, and no provision was made for the maintenance of inmates, as no buildings had yet been erected for their reception.

By the act of March 2, 1827 (P. L. 76) entitled "An act to endow the 'House of Refuge' and for other purposes therein mentioned," an appropriation of $10,000 was made from the state treasury and the county of Philadelphia was also required to make appropriations to the extent of $35,000 for the purposes of the institution. The act further provided, by section 4 (page 78) that the managers should receive "such children who shall be convicted in the court of oyer and terminer or quarter sessions of any county, except the county of Philadelphia, or mayor's court of any city except the city of Philadelphia, of any offense which under the existing laws would be punished by imprisonment in the penitentiary, as may be in the judgment of said courts deemed proper objects for the House of Ref

uge; and the children so received shall be clothed, maintained and instructed by the said managers at the proper expense of the proper county, and the accounts of the said children shall be kept by the said managers in the same manner that the accounts of convicts in the penitentiary are now directed to be kept by the inspectors thereof."

The act of April 10, 1835 (P. L. 113) broadened the class very considerably, so as to include: "(1) Infants committed by an alderman or justice of the peace, on the complaint and due proof made to him by the parent, guardian or next friend of such infant, that, by reason of incorrigible or vicious conduct such infant has rendered his or her control beyond the power of such parent, guardian or next friend, and made it manifestly requisite that, from regard for the morals and future welfare of such infant, he or she should be placed under the guardianship of the managers of the House of Refuge. (2) Infants committed by the authority aforesaid, where complaint and due proof have been made that such infant is a proper subject for the guardianship of the managers of the House of Refuge, in consequence of vagrancy, or of incorrigible or vicious conduct, and that from the moral depravity, or otherwise, of the parent or next friend in whose custody such infant may be, such parent or next friend is incapable or unwilling to exercise the proper care and discipline over such incorrigible or vicious infants. (3) Infants committed by the courts of this commonwealth in the mode provided in the act to which this is a supplement."

It will be noticed that by the fourth section of the act of March 2, 1827, the cost of maintenance of the children was placed upon the county from which they were sent. No change was attempted in this respect until the passage of the act of January 10, 1867 (P.,L. 1371), which is entitled "A further supplement to an act entitled 'An act to incorporate the subscribers to the articles of association for the purpose of establishing and conducting an institution for the confinement and reformation of youthful delinquents under the title of the House of Refuge,' passed March 23, 1826." Turning to section 3 (page 1372) of this act of 1867, we find that it provides "That the fourth section of a further supplement to an act, entitled (giving title of act of 1826 as above) passed the 2d day of March, 1827, be and the same is hereby repealed." But in fact the act of March 2, 1827 (P. L. 76), is not, by its title, a supplement to the act of March 23, 1826 (P. L. 133), but is entitled "An act to endow the 'House of Refuge' and for other purposes therein mentioned." The reference to it, therefore, in the act of 1867, as "a further supplement," etc., would seem to be clearly erroneous. The section which it was sought to repeal by the act of 1867, was not contained in the act mentioned in the title to the repealing bill. It is contained in another

and later act. The amendment to the Constitution forbidding the passage of any bill containing more than one subject, which. should be clearly expressed in the title, was adopted in 1864, and was in force at the time of the passage of the act of 1867. The title of this act gives no notice whatever of any intention to repeal the fourth section of the act of 1827. The situation is analogous to that in Ruth's Appeal, 10 Wkly. Notes Cas. 498, and the principle there set forth is applicable here. It was there held by the court below, and affirmed by this court, that the act of April 7, 1877 (P. L. 83) entitled, “A further supplement to an act to incorporate the city of Scranton," which provided for the repeal of a clause in that act relating to the collection of taxes, was unconstitutional and void, because it did not clearly express the subject thereof in the title.

The court below there said (page 500): "If the title clearly expressed the subject of the bill, it should be read in this manner: 'A further supplement to an act to incorporate the city of Scranton and to repeal the forty-second section of the act approved the 23d day of April, 1866, exempting the said city from the payment of county tax." In that case the provision sought to be repealed was contained in the act to which the repealing bill was a supplement, and even then the title was held defective. Much more, then, does it fall short, when as here the provision to be repealed is not found in the act of 1826, to which the act of 1867 refers, but is found in another statute, that of March 2, 1827. We are brought then to the conclusion that the repealing act of 1867 is unconstitutional and void by reason of the failure to give any notice in its title of an intention to repeal the fourth section of the act of 1827. That section, therefore, stands unrepealed, and if so, then counties from which children were committed to the House of Refuge were already liable for their maintenance when the act of 1901 was passed. That act, therefore did not impose any additional liability upon the counties, but on the contrary relieved them of onehalf of the burden to which they had been subject before that time.

We are therefore of opinion that the learned court below erred in holding that the act of May 11, 1901, is unconstitutional. The judg ment is reversed, and is ordered to be entered for the plaintiff in the amount found to be due by the referee.