of the debts and charges specified in the first paragraph of said will," and "whether any legal effect can be given to any part of said codicil, and, if so, what, and whether all or any of said section is or is not void."

The position of the complainants, who claim under Julia A. Dearborn, is that by the will the testator gave all of his property in fee to his wife; that by his codicil he first confirms this will, and then proceeds to devise and bequeath the remainder, after the decease of his wife, to his legal heirs; that this devise over of a remainder is inoperative and vold because there was no remainder. And they rely upon the familiar rule, universally recognized and frequently stated by this court in its decisions from Ramsdell v. Ramsdell, 21 Me. 288, down to the present time, that, if a testator makes a devise of the whole estate in any property, a devise over of any remainder in that property is inoperative because nothing is left which can be the subject of a devise over. A testator cannot divide an estate into more parts than the estate contains. But this rule is not applicable when the inconsistent devises are contained, one in the original will and the other in a subsequent codicil, as then the testator is presumed to have changed the intention which he had at the time of making the first testamentary disposition of the property in question, and his last will-that is, the codicil-will take effect. Derby v. Derby, 4 R. I. 414.

There is, of course, no question but that a testator may modify by a codicil any disposition of his property made in the original will, but the position of the complainants is that by the codicil in question the testator first confirmed the provisions of his will, and that therefore the rule above referred to is applicable and makes the further provisions of the codicil inoperative.

But the controlling rule in the construction of wills, to which all other rules must yield, is that the intention of the testator is to be ascertained, if possible, and that such intention when ascertained will prevail, provided it is consistent with legal rules. In this case there can be no question but that this testator intended to modify the devise and bequest to his wife. At first, as shown by the will, he intended that she should be the sole beneficiary and should take an estate in fee in all of his property. Sixteen years later, when he made the codicil in question, his evident intention was to give the whole of his property to his wife for her life, with the power of disposing of it during her life, but that "the balance, if any," at the decease of his wife should go to his own legal heirs, rather than to those of his wife. Although it is apparent that the codicil was made by some one inexperienced in the drafting of legal documents, there would be no question but that this evident intention had been carried into effect, and in

appropriate terms, except for the use of the language of the codicil in which he says that he confirms the previous will. Can the effect of this clause be to make the whole codicil of no effect? We think not. Such a construction would be unnatural and forced and contrary to the controlling rule that the intention of the testator is to control when it can be ascertained. The only purpose and intent that the testator could have had in making this codicil was to modify this devise to his wife, to give her a life estate, with the power of disposal during life, rather than the estate in fee which she would have taken under the will, the very purpose and object of a codicil.

We think it clear that the testator did not mean to confirm his will in whole; since, if such had been his intention, he would not have made the codicil. What he did mean was to confirm the will, except as modified by the codicil. Such a construction is consistent and gives effect to the whole instrument. The whole of the will and codicil and all of its parts must be considered and construed together for the purpose of ascertaining the intention of the testator, and, when this is done, we have no question that his intention was not to confirm the will in full, but to mcdify it to the extent that is clearly expressed therein.

While, under the will and codicil, the wife only took a life estate in the testator's property, we think it is equally clear from the language of the codicll that she had the right to dispose of any portion of this property during her lifetime. The devise over was only of the "balance, if any," at her decease. This clearly shows an intention upon the part of the testator to give to his wife a power of disposal during her lifetime, but it did not enlarge the estate given to her to a fee, since it was expressly limited to a life estate. Harris v. Knapp, 21 Pick. (Mass.) 412; Ramsdell v. Ramsdell, 21 Me. 288; Scott v. Perkins, 28 Me. 22, 48 Am. Dec. 470; McGuire v. Gallagher, 99 Me. 334, 59 Atl. 445.

Our conclusion is that the codicil is effective; that under the will and codicil the wife took an estate for life in all of the property left by the testator, with the power to dispose of any portion of the same during her lifetime; that at her decease all the property of the testator remaining at that time went to the heirs at law of the testator. So far as this result is not in harmony with the case of Pickering v. Langdon, 22 Me. 413, that case is overruled.

The result of the opinion is in accordance with the conclusion of the justice who heard the case and who ordered a decree, except that in the decree ordered and appealed from nothing was said as to the wife's power of disposal, a question which was probably not raised, as it was not here. The decree will therefore be modified in that respect and a new decree made by a single justice in ac

cordance with the opinion, at which time allowances for costs and counsel fees, to be paid out of the estate, may be made, as this court is not possessed of sufficient facts to pass upon these matters.

So ordered.

(216 Pa. 22)

DWYER v. PORT ALLEGHENY BOROUGH. (Supreme Court of Pennsylvania. June 27, 1906.)

MUNICIPAL CORPORATIONS-INJURIES TO PEDESTRIAN.

In an action against a borough to recover for injuries received while walking on a slippery sidewalk, held, that a nonsuit was properly entered.

Appeal from Court of Common Pleas, McKean County.

Action by Michael J. Dwyer against Port Allegheny borough. From an order refusing to take off a nonsuit, plaintiff appeals. Affirmed.

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

John G. Johnson, Sheridan Gorton, and Thomas F. Richmond, for appellant. F. D. Gallup, D. S. Helmer, Borough Solicitor, Fred S. Lewis, and S. W. Smith, for appellee.

STEWART, J. The case as exhibited on behalf of the plaintiff showed that the injury for which compensation is demanded was sustained under the following circumstances:

In the late afternoon or early evening of February 17, 1904, while walking in the borough of Port Allegheny, the plaintiff slipped and fell in consequence of the icy condition of the pavement, his fall resulting in a broken limb. At the point where the accident happened, and for quite a distance on either side, the pavement, in consequence of an accumulation of ice thereon, was, and had been for some time, in a condition that made it hazardous for pedestrians to attempt. The plaintiff, however, had not previously during the winter passed along it, and was ignorant of its condition. It was easy for one passing along that street to avoid this particular place of danger. The street itself furnished a safe way, and was accessible from the pavement, while on the other side of the street there was a wide, much traveled, and reasonably safe pavement, also easily accessible. Plaintiff was aware of this fact, since he had used the pavement on the other side during the afternoon, and had crossed the street several times. The pavement on the side where the plaintiff fell was not used to the extent that the pavement on the other side was; it was along vacant lots and lawns, while that on the opposite side was the business throughfare.

The court below, being of opinion that the law charged plaintiff with negligence upon

his own showing of the circumstances, directed a nonsuit. We have nothing in the case to consider but this action of the court. This makes necessary a somewhat more detailed statement of the evidence, in connection with the inquiry, which obviously must determine the correctness of the court's action.

The plaintiff entered upon the dangerous piece of pavement when he turned from Maple street upon Main. From that point to where he fell, a distance of eight rods, the pavement, without break, was dangerous to pedestrians. A snow plow had been used there some time before, with the result that bordering a narrow path, itself covered with ice, there were ridges of snow now turned to ice, with sides inclining the entire length. The plaintiff's own testimony is conclusive of the fact that the pavement was in a dangerous condition throughout its entire length traversed by him, worse in some places than others, but practically the same from the midway point in the Dalrymple lot to the place where he fell. The witness Cook, who was more particularly inquired of with respect to this matter, says, speaking of the character of the ridges, that the pavement was about in the same condition all the way through. The danger was not concealed by the snow, but was apparent to any one exercising ordinary observation. The plaintiff says: "When I first started on the walk I didn't know the condition of it. If I did, I would be thought a fool if I hadn't taken the other. It was dark. I started to go home. I expected this walk like the others to get better after a while. If I hadn't thought the walk would get better up a ways, I would have turned back any time." It is not apparent just what the witness meant by saying that he did not know the condi tion of the walk when he first started on it; whether he meant the instant he entered upon it, or after he had followed it some distance is not clear; but it is not material, since the language subsequently used admits of no other explanation than that he did realize, before it was too late to retrace his steps or change his course, that danger confronted him, and to advance further was perilous. That it was dusk, and the danger therefore not apparent, is his excuse for entering upon the street at all; but despite this difficulty he somehow or other soon became aware of the actual situation, because he says he would have turned back but for the expectation that the condition of the pavement would improve as he advanced. Instead of improving it grew worse, according to his own testimony, and yet he persisted. Upon his own admission he voluntarily attempted a known dangerous way which could, without inconvenience to himself, have been avoided as he admitted. This admission was not incautions or accidental; it not only accords with the other testimony of the plaintiff, but was

DORRIS v. MORRISDALE COAL CO. (Supreme Court of Pennsylvania. June 27, 1906.)

1. MINES AND MINERALS-COAL LEASES-LIABILITY FOR ROYALTIES.

Defendant leased at different times two adjoining tracts of coal land from the same lessor, who brought action for the payment of minimum royalties for one tract of the land. Held, that a condition of the strata in the other tract, which under the lease would relieve the lessee from payment of royalties for that tract, could not be set up as a defense, in the absence of evidence that such was the intent of the parties when the lease in suit was executed. 2. SAME.

A lease of coal land provided for a minimum royalty unless a serious fault in the mine should restrict operation. The lessor executed to the same lessee a second lease for an adjoining tract, which lease referred to the sinking of a second shaft, without designating the place therefor, and the lessee sunk the shaft on the land covered by the first lease, and serious faults in the coal were discovered. Held not to release him from the payment of the minimum royalty under the second lease.

3. EVIDENCE-DOCUMENTARY ADMISSIBILITY.

On the death of plaintiff his personal diary was brought into court by subpoena at the instance of defendant. Held, that there being no showing that there was anything in the diary pertinent to the issue, there was no error in refusing to compel its production.

Appeal from Court of Common Pleas, Clearfield County.

Action by Annie Dorris and others against the Morrisdale Coal Company. Judgment for plaintiffs. Defendant appeals. Affirmed.

At the trial it appeared that William Dorris in his lifetime owned the undivided fourtenths interest in about 2,666 acres of land in Clearfield county. On March 1, 1893, he leased his interest in the "B" seam of coal under 1,000 acres of that land to his cotenants. The interest of the lessees (his cotenants) under this lease in 1895 became vested in the Morrisdale Coal Company. On September 1, 1898, William Dorris leased his interest in the "B" seam of coal under the remaining 1,666 acres to the Morrisdale Coal Company. Each of these leases contained a provision for the payment of a minimum royalty of $3,200 per year; that is to say, the Morrisdale Coal Company agreed to mine under each lease 100,000 tons of coal annually, "unless a serious fault in the mine or other unusual or unforeseen occurrence or inability to obtain sufficient transportation or the quality of the coal on the demised premises be of such a character as to justify a prudent operator in restricting the opera

tion of the mine." The lease of September 1, 1898, contained a stipulation as to the sinking of a second shaft. No second shaft was sunk in the land covered by the second lease, and no coal was mined from this land. There was evidence that a second shaft was sunk, or an old one cleared out, on the 1,000-acre tract. The defendants attempted to excuse a nonpayment of royalties under the second lease by reason of serious faults in the strata of the coal covered by the first lease, and attempted to show that it was the intention of the parties that if there was a fault in the coal in the first tract it would relieve the lessee from payment of royalties under the second lease. The court refused to admit in evidence the diary of William Dorris, deceased.

The court charged in part as follows:

"If the location of shaft No. 2, as made, was agreed upon between the parties, and if this is to be treated or considered as a part of the agreement of lease dated September 1, 1898, then that lease is rendered somewhat ambiguous and difficult of interpretation. The defendant recognizes this, and alleges that the lease as written does not fully and clearly express the purpose and intent of the parties executing it, and has offered testimony to amend or reform it; but the testimony introduced for this purpose does not fully meet all the legal requirements necessary to amend or reform a writ ten contract, and therefore I am constrained to say to you that the written lease of September 1, 1898, signed by the parties, contains the entire contract made between them, and is the only evidence of what that contract is, and its interpretation is for the court, unless the parties themselves have put upon it an interpretation upon which they acted."

"If the defendant has established by evidence that is clear, precise, and indubitable that as to the second lease the real contract between the parties is not fully and precisely expressed in the preliminary agreement of April 25, 1898, and the lease of September 1, 1898, as to the extent of the demised premises, in that the same extended to the entire property jointly owned by the parties, to wit, the two tracts containing 2,666 acres, and was not confined to the upper tract, containing 1,666 acres, as stated therein, and that the stipulation that it thus extended to the property as a whole was omitted from the said contracts by the accident or mistake of both parties, said contracts should be reformed, and if the Jury so find from the evidence, then the rights of the parties are to be judged of from the contracts as they thus really existed between them. As already stated, I do not think the evidence is sufficient to amend or reform the written contract, and therefore this point is refused. The jury will recall what has been said in our general charge on the question of what interpretation the parties

themselves placed upon said contract and how that affects it and the operations under it."

"But if the shaft was located without his (Dorris') knowledge or consent at the point where it is located, and is not properly located to develop and take out the coal from under the 1,666 acres, and is practically useless for that purpose, then the plaintiffs cannot be required to contribute the $8,000 or any other sum to its construction, and consequently no reduction on that account should be made from royalties accruing to the plaintiff under the lease of September 1, 1898."

"What I have said about the production of coal in shaft No. 1, and the prosecution of the work at that shaft, applies in every particular to shaft No. 2, providing you find under the evidence under the instructions already given that the parties agreed to this location and also interpreted the lease of September 1, 1898, as authorizing It at its present site, and the defendant in that event would be liable for minimum royalties from September 1, 1898, to September 1, 1903, or be relieved from their payment on the same conditions that it would be liable for or relieved from their payment at shaft No. 1, and it is unnecessary for me to repeat what has just been said to you about the defendant's liability for minimum royalties at shaft No. 1 and what would relieve it from the payment of such royalties. The only difference between the two leases in this respect 's the dates."

"If you find from the testimony that it was to be located on the leased premises as contended for by the plaintiffs, it appearing that no such location has been made, and it further appearing that no mining has been done by the defendant on the 1,666 acres, or that there was anything to prevent the mining of the coal, it would follow from the terms of the lease that the plaintiffs are entitled to recover the minimum royalty of $3,200 per year under that lease from September 1, 1898, to September 1, 1903, against which the defendant would be entitled to a credit for the payment of the Girard Trust Company mortgage of $6,000 and interest at 5 per cent. as provided for in the lease, but would not be entitled to any credit for the $8,000 which the lessor agreed to contribute to the construction of shaft No. 2, since it was not located in accordance with the agreement of the parties."

On motion for a new trial Reed, P. J., filed the following opinion:

"The defendant's contention that shaft No. 2, in connection with the lease of September 1, 1898, was to be located at the southwest corner of the tract covered by the lease of March 1, 1893, made it practically impossible to give effect to the most important feature of the first-mentioned lease so far as the lessor was concerned. The undisputed

testimony showed that, in the absence of faults and other difficulties that might be encountered in mining the coal, if there had been nothing but clean coal of workable height to drive through, the coal in the demised premises described in the lease of September 1, 1898, could not have been reached from shaft No. 2, located as contended for by the defendant, short of 3 years, and with the difficulties of mining the coal which actually existed, and which were manifestly known to the defendant at the time of executing the lease, it could not be reached in 10 years. Yet the lease provides for the payment of a minimum royalty of $3,200 per year on coal to be mined from the demised premises through shaft No. 2. Recognizing that its location of shaft No. 2 postponed indefinitely the payment of royalty to the les sor, contrary to the express provisions of the lease, it was contended that the lease of September 1, 1898, was intended to be an enlargement of the lease of March 1, 1893. so as to make it cover the entire tract of 2,666 acres, with two openings, from each of which a minimum royalty of $3,200 per year was to be paid, unless the mining of 100,000 tons of coal annually from each shaft was prevented by some serious fault, etc. In support of this contention an attempt was made to reform the written lease so as to effectuate what the defendant alleged was the intent of the parties in executing it If we have a proper conception of the law with reference to altering, modifying, or re forming a written instrument, this attempt on the part of the defendant failed utterly. If the testimony offered for this purpose demonstrated anything, it clearly demonstrated that there was neither fraud, accident, not mistake in the execution of the written least and furthermore, that the lease as written embodied precisely the contract as agreed upon between the parties. It may be that they entertained different views as to the interpretation that might be placed upon it, or of which it was susceptible. If they did, these views were not expressed, or made a part of the contract at the time of its execution by them. Hence, if any error was committed in submitting the case to the jury on the question of whether the lease was to be interpreted as written, it was committed in favor of the defendant. While course for the defendant, in reply to their inquiry, were told that the question of reforming the written lease would be withdrawn from the consideration of the jury, they were at the same time informed that the question of whether or not shaft No. 2, as located, was an agreed location would be submitted to the jury, and that question was fully argued by them, and, we think, fairly presented in the charge of the court to the jury for their d termination. The court construed the lease with reference to such location, and thus the defendant had the benefit of all that it co tended for, and if there was any error in

this it is one the defendant cannot complain about. The complaint that the court failed to call the attention of the jury to the distance and intervening difficulties between the shaft so located and the 1,666-acre tract, to mining the coal from said tract, is not well founded. If the lease of September 1, 1898, was an enlargement of the lease of March 1, 1893, as contended for by the defendant, then the defendant was liable for the payment of the minimum royalty from shaft No. 2 if the coal could be mined anywhere on the entire tract of 2,666 acres. This shows the vice in defendant's second point, and explains why that point was refused. The jury was fully instructed as to what would relieve from payment of the minimum royalty on coal to be taken out through shaft No. 2, and the distance of its location from the 1,666-acre tract was not an element to be considered. Neither can we assent to the contention that the lease of September 1, 1898, provides for the location of shaft No. 2 on the demised premises, which are stated to be the 1,666-acre tract, and that recognizing the right to locate it as actually located is reforming the written lease. Excluding all extraneous evidence, and having recourse to the writing alone, that is the interpretation the court would be disposed to put upon it. But it is to be observed that the lease does not in terms provide whether shaft No. 2 shall be sunk on or off the demised premises, and this leaves room for a construction of the lease by the parties that would permit of the location contended for by the defendant. In any event, it is immaterial whether the lease could be reformed by an interpretation of it by the parties, on which they acted, since the defendant had the benefit of such instruction to the jury, and it being entirely clear that the evidence was otherwise insufficient to reform it. In other words, if the court was right in withholding from the consideration of the jury the question of the reformation of the written lease because of a lack of evidence to warrant its submission to them, the defendant ought not to complain because it was given an opportunity through another channel to reach the same port.

"We are not convinced that there is error in our answer to the defendant's fifth point for charge. The point was affirmed, omitting the words 'and the coal mined without loss.' To have affirmed it with those words included would have been to insert in the contract of the parties causes for relieving against mining the coal not specified in the contract. The condition of the market might make the mining of the coal unprofitable, and other conditions not specified in the lease might arise which would prevent the coal being mined except at a loss to the defendant. If it was intended to say that the coal could not be mined without loss because of the obstacles designated in the lease, the words 'and the coal mined without loss'

should have been so limited. The point was complete without these words, and the defendant was not harmed by its affirmation with the said words omitted. The defendant's eleventh point substitutes reasons other than those provided for in the lease for relieving against its failure to mine the minimum quantity of coal annually. The facts suggested in this point do not constitute an estoppel, nor are they sufficient in law to discharge a breach of the defendant's contract in not taking out the stipulated quantity of coal each year. Neither do they justify the conclusion that Mr. Dorris was satisfied with the work of the defendant in carrying out the contract, or warrant the presumption that the defendant did its entire duty in respect to the amount of coal mined. For these reasons the point was refused, and our examination of the authorities cited on the argument of this motion has failed to convince us that there was error in its re fusal. Neither can we assent to the contention that the burden was on the plaintiffs to show that the minimum quantity of coal could be mined annually. The authorities cited in support of this contention are made to turn on the stipulations of the litigated contract, and are readily distinguishable from the case in hand. The defendant, in the lease under consideration, bound itself to take out of the demised premises at least 100,000 tons of coal annually, or pay royalty on that quantity whether taken out or not, 'unless a serious fault in the mine, or other unusual or unforeseen occurrence, or inability to obtain sufficient transportation, or the quality of the coal on demised premises be of such character as should justify a prudent operator in restricting the operation of the mine. No hindrance involving a stoppage of mining for less than 30 days to be considered as a factor in relieving the said party of the second part from the full performance of this covenant.' It is not alleged that there was not sufficient merchantable coal in the demised premises to meet the requirements of this covenant. Nor does the case involve any question of mining the coal advantageously or at a profit to the lessee. The covenant to take out at least 100,000 tons each year could only be discharged by showing a serious fault in the mine, etc., that prevented the lessee from taking out the stipulated quantity. Moreover, the relieving causes involve matters largely, if not exclusively, within the knowledge of the lessee, and therefore when interposed as a defense the burden was on it to prove the same.

"In the reasons assigned for a new trial it is alleged that the court erred in the admission and rejection of evidence. The only error in this respect commented upon by counsel was the refusal of the court to compel the production of the diary kept by William Dorris, deceased. It appeared that Miss Dorris, the executrix, had possession of this diary, and had it with her in court at