immense issue of $20,000,000 of capital stock, anything more than an insignificant fraction was ever paid into the treasury of the company. The total investment in the properties was $17,853,534.34, so that the amount of the capital stock finally issued, which was $20,000,000, would have been, if it had been paid up in cash or its equivalent, considerably more than enough to cover the entire amount. Or, to put it in another way, if the funds which were actually advanced by W. H. Donner and his associates, the stockholders of the company, had been paid into the treasury of the company as capital stock, there would have been no indebtedness, and no occasion for an issue of bonds to provide the necessary capital for the company, and the questions in dispute in this case would not have arisen. It was the deliberate withholding from the company of the proceeds of the capital stock which made occasion for the bond issue. As a matter of fact, while the business was carried on under the corporate name of the Union Steel Company, the formalities of corporate management were dispensed with, and the methods followed were entirely those of a partnership. In his answer, W. H. Donner says: "No meetings of the stockholders, and no meetings of the directors as such (except for organization) of said Union Steel Company were ever held until after the arrangement for the sale of its capital stock to the United States Steel Corporation, as hereinafter described. The business affairs of said enterprise were carried on by Mr. A. W. Mellon, Mr. R. B. Mellon, and myself." The matter of the organization of the company and the peculiar methods adopted by its promoters to supply it with funds, by lending the money to it, and taking its notes instead of its certificates of stock, is not directly before us; but it has been brought into the case, and we have felt obliged to take note of it, by reason of the zeal of counsel in rearguing questions which were considered and disposed of on the former appeal. We see no reason whatever to change the conclusions we then reached.

When the case was here before, it was admitted that, for the sale of the properties by W. H. Donner and the Mellons, they received bonds of the total par value of $25,214,288.41, and that the total investment in the Union Steel Company and its subsidiary corporations was $17,853,534.34. If the bonds be considered as worth par, this left a profit of $7,360,754.07, of which onefourth belonged to W. H. Donner, and this amount, or $1,840,188.52, was paid or set over to him in bonds of the Union Steel Company, guarantied by the United States Steel Corporation. These profits only arose or appeared after the payment of the indebtedness of the company. That these profits were actually made, and paid over in the shape of bonds, to W. H. Donner, appears over and over again from the records of this case. It appears

clearly from the admissions of the defendant in his answer, and it is also shown by the account filed by him, and by the statement of the settlement between him and the Mellons. The defendant admitted, in his statement, exhibit No. 55, offered in evidence upon the trial before the court, that his profits were $1,840,188.52. He testified that he had this statement prepared, showing accurately the profit made by the Messrs. Mellon and himself. In a prior statement rendered May 1, 1903, identified as exhibit No. 37, he had already admitted a total profit on the transaction of $7,316,229.27, of which his one-fourth would be $1,829,057.32. That the profits of the defendant, embodied in bonds, were actually in his possession or control, was not disputed on the former appeal. The dispute was as to the proportions only, into which these profits of defendant should be divided in the settlement with his brother. Now, in the present appeal, it appears that, for the first time in the history of the case, W. H. Donner set up before the master the claim that, instead of the Union Steel Company being allowed par for the bonds taken from it by its stockholders in payment of the funds advanced to it, there was an arrangement made between themselves by which he and the Mellons took the bonds from the company at a valuation of about 70 cents on the $1. This claim is entirely inconsistent with the theory of the case when it was tried upon its merits in the court below, and when presented here before. If it is correct, the de fendant could not have made the profit of $1,840,188.52 which he then reported and admitted over and over again. Whether they did or did not take the bonds from the company at this reduced rate, instead of receiving them at par, is a question of fact; and both the master and the court below have found this fact against the contention of appellant, and have found that the bonds were issued and accepted at par. The master, in his report, after referring to the fact that the attempted distribution of the bonds into capital and indebtedness by the defendant was arbitrary, and not in accord with the actual transaction, says: "I cannot find from the evidence that of the investment of $17,853,534.34, $2,106,596.19 was capital stock and the remainder, $15,746,938.15, indebtedness, and that the bonds received were distributed accordingly; nor can I find that the price at which the bonds were taken was $708.0721 [on each $1,000 bond]"-thus squarely negativing the contention of appellant.

We can find nothing in the facts of the case, or in the details of the transaction, from start to finish, to indicate that the bonds of the company were not considered as worth par, by its stockholders, when they accepted them in exchange for the properties of the company in what was to them a most profitable deal. It must be remembered that the bonds were not sold or offered for sale by the company in the open market, but were

placed by the defendant and his associates upon what was at the time their own property, and issued for the express purpose of enabling them to make sale of that property on satisfactory terms. Under such circumstances, the bonds were presumably worth much more to the stockholders than they would be to the outside public. Especially was this the case, when the transaction did not call for new funds from these stockholders, but involved only the sale of properties in which their funds were already invested to a very large amount, and in an enterprise which they would be compelled to carry to a successful issue, in order to save themselves from heavy loss. In other words, if the investment was for any reason undesirable, they were already committed to it, and to a very large extent. The defendant never set up in his answer any claim that the bonds were accepted at less than par. Nor does his statement of accounts contain any such claim; but throughout it constantly and consistently treats the bonds as being worth par. The statement upon which settlement was made between W. H. Donner and the Mellons also treats the bonds throughout upon the basis of par, and contains no indication that any part of them was taken, or was regarded, as worth less than par. That statement, shown as Exhibit No. 4, contains a note as follows: "Note C. Profits shown are based on bonds at par."

A further bit of corroborative evidence appears in the fact that the defendant gave to the plaintiff a rough statement Exhibit No. 36, in which he then estimated that plaintiff was entitled to a profit of 60 per cent. upon the transaction. In this statement no distinction is made between the bonds at par and cash. Frank Donner's investment had been $25,000 in cash, and it was upon this. amount that W. H. Donner then desired to make a settlement, on the basis of 60 per cent. profit. This would be $15,000, which, added to the $25,000 of original investment, made $40,000; and, in pursuance of this calculation, W. H. Donner actually sent his brother 40 $1,000 bonds, which had a total par value of just $40,000. This shows that at that time, March 10, 1903, which was only a few days after the bonds had been received, with the guaranty of the United States Steel Corporation upon them, the defendant regarded them as worth par, and used them at that valuation in attempting to discharge an admittedly just and valid obligation payable in cash or its equivalent. And another incident, showing the view then held as to the value of the bonds, is this. The bonds were received by W. H. Donner and the Mellons early in March, 1903, and on April 9th, within a month thereafter, the defendant wrote to Frank Donner offering to send him $1,000 for one of his bonds, thus indicating in a very practical way that he then considered them worth par. Again, on June 6, 1903, 10

days before this bill was filed, the defendant sent to counsel for plaintiff a paper, identified as Exhibit No. 37, which is entitled a "general statement, showing selling price, investment, and profits," and in this statement the bonds are treated throughout as if they were taken as cash at their par value. That these bonds were as a matter of fact issued and accepted by all parties concerned, at the par value, is strongly evidenced by the agreement with the United States Steel Corporation, and by the proposition of T. Mellon & Sons to the directors of the Union Steel Company, by which they agreed to purchase, and did purchase, at par and accrued interest, $3,000,000 of the bonds. Everywhere throughout the transaction it appears that the bonds were considered as worth par and as the equivalent of that much in cash. It is difficult to see any reason why this should not have been the case. The bonds were issued by the Union Steel Company, and payment of them is guarantied by the United States Steel Corporation, one of the largest, richest, and most powerful corporations in the world. They are of the denomination of $1,000 each; are dated December 1, 1902; are payable at the expiration of 50 years after their date; are free of taxes; are redeemable after December 1, 1907, at 110 and interest; and bear interest from December 1, 1902, at the rate of 5 per cent. per annum, payable semiannually. They are secured by a first mortgage and collateral trust deed upon all the property of the Union Steel Company, including the stocks and after-acquired property, and said mortgage provides for an annual sinking fund of 2 per cent. of the bonds outstanding and unpaid. The suggestion of counsel for appellee seems to be well founded that it was an afterthought on the part of the appellant to claim that these bonds were issued in payment of the indebtedness of the company at a valuation of a little more than 70 cents on the $1. The master finds that the position taken by the accountant in this respect was untenable. and the court below was much more emphatic in rejecting the suggestion that the accountant should have the benefit of the bonds at 70 cents on the $1, and we see no reason to differ with its conclusion in this respect.

Several of the assignments of error raise questions as to certain credits claimed by accountant, and disallowed by the master and the court below, and as to the charge of $1,818.18 against the accountant in the matter of the Union Improvement Company. These were all purely matters of fact, and there was sufficient evidence to sustain the findings of the master, which are affirmed by the court, and we will not disturb them.

The assignments of error are all overruled, the decree of the court below is affirmed, and this appeal is dismissed, at the cost of appellant.

(217 Pa. 65)

In re MULHOLLAND'S ESTATE.
Appeal of DA COSTA.

(Supreme Court of Pennsylvania. Feb. 4, 1907.) 1. WILLS-DEVISAVIT VEL NON-REFUSAL OF ISSUE.

The orphans' court refused an issue devisavit vel non, where there was some evidence of a want of memory and childishness on the part of testatrix, but the undisputed evidence showed that the will was drawn at her instruction by an attorney, and executed in his presence without any party in interest being present. The testatrix knew the nature of the act, what she wanted done with her property, and the person naturally the subject of her bounty. Held, that the decree would be sustained.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, §§ 742-745.]

2. SAME-CAPACITY OF TESTATRIX.

Where testatrix, shortly after having made her will. was declared a weak-minded person under the acts of June 20, 1895 (P. L. 300), and June 19, 1901 (P. L. 574), the decree operated prospectively only, and did not change the burden of proof as to the will, and while the decree should have been considered in a contest over the will, its effect was defeated, where it was shown to have been secured at the instance of the contestant against the will.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, §§ 104-110, 138-147.]

Appeal from Orphans' Court, Philadelphia County.

In the matter of the estate of Margaret Mulholland. From a decree refusing an issue devisavit vel non, Margaret W. Da Costa appeals. Affirmed.

The register of wills directed a precept for an issue devisavit vel non to the court of common pleas to determine the question of the validity of the will. On appeal to the orphans' court evidence was heard and the court filed an opinion reversing the order of the register of wills, and directed the latter to admit the will and codicil to probate. Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

Edward A. Anderson and Edwin S. Ward, for appellant. Wm. H. R. Lukens, for appellee.

MITCHELL, C. J. There is no evidence in this case which would justify any court in allowing a jury to set aside this will. The circumstances under which it was drawn are undisputed. A member of the bar while on a business visit to the testatrix's granddaughter was informed that testatrix with whom he was not personally acquainted desired to see him. He went into the next room and was introduced to testatrix who told him she wanted to make a will. He requested the granddaughter to leave the room, and then testatrix said she had made a will at the instigation of her daughter, Mrs. Da Costa, of which she did not approve, leaving the total sum and substance of her estate to that daughter, that she desired to equally divide her property, and that she wished the children of her dead daughter to have

a share of her estate. The will was then written in accordance with this expressed desire, read carefully to testatrix, and approved by her, witnesses were brought in, and in their presence the will was read again to testatrix, and then executed, no one being present but testatrix, the witnesses, and the attorney. The will bequeathed her gold watch to one of the granddaughters, and the residue of her estate to her children and grandchildren. We thus have affirmative and practically undisputed evidence that testatrix knew the nature of the act she was performing, knew what property she had, what she wanted done with it, and also knew the persons whose relationship to her would make them naturally the objects of her consideration. These are the essential elements of testamentary capacity. On the other side, there is the usual neighborhood gossip about want of memory, acts of childishness, inability to take care of herself, etc. Opinions unfortified by specific facts are a very unsafe basis on which to deprive any person of control of his property. In the evidence in this case, facts to sustain the opinions as to mental weakness are notably absent. A whole volume of such testimony would be of little weight against the clear affirmative proof of testamentary capacity already shown, and what there is of it is discredited by the explicit finding of the learned judge below that "the contestant and most if not all of her witnesses, either on cross-examination or while testifying in chief, state facts which are utterly in conflict with their assertions of imbecility."

One feature of the case requires further notice. Shortly after the making of the will now in contest, the contestant apparently having learned of it and apprehensive that the prior will under which she would take the whole estate would be thereby revoked, filed a petition in the court of common pleas under the acts of June 25, 1895 (P. L. 300), and June 19, 1901 (P. L. 574), to have her mother declared of weak mind, and after a hearing that court "reached the conclusion that the testatrix was not able, owing to weakness of mind, to take care of her own property," and appointed a guardian. The operation of this decree was prospective only, and, therefore, it did not change the burden of proof in regard to the will. ing, however, to the shortness of the interval between the execution of the will and the decree of the common pleas, the latter is proper evidence for consideration in a contest over the former. Apart, however, from the fact that such weak-mindedness as might lead to improvidence in the care of property is not necessarily inconsistent with testamentary capacity, the decree in the present case is entitled to very little weight in view of the forcible suggestion of the learned judge of the orphans' court: "Whether the conclusion would have been reached had the fact been disclosed that the petitioner had

Ow

recognized the capacity of the mother to take care of her property by obtaining the will of May, 1901, which she then held in her possession, by which she would succeed to the exclusive possession of the estate, may well be doubted; but the fact was not only not disclosed, but the petitioner, in testifying in the proceeding, positively denied that such a will had been executed."

This case is a fresh illustration of the unwise and dangerous character of the act referred to in Hoffman's Estate, 209 Pa. 357, 58 Atl. 665, and the necessity for great care and circumspection in its administration. In particular, the relationship of the petitioner not only to the accused but to the accused's property, with a view to the uncovering of any secret or selfish motive in the proceedings, should always be made a specific point for the keenest and most searching judicial inquiry. Had the real facts been disclosed in the hearing in the common pleas, it is not probable that the learned judge there would have appointed a guardian at the instance of a grasping daughter with such a plain interest in taking the mother's property out of her control.

Decree affirmed, with costs.

(217 Pa. 69)

HARDING v. PHILADELPHIA RAPID TRANSIT CO.

(Supreme Court of Pennsylvania. Feb. 4, 1907.) CARRIERS-INJURY TO PASSENGERS-CONTRIB

UTORY NEGLIGENCE.

One riding on the running board of a summer car, outside of a lowered bar is negligent per se, and cannot recover for injuries received whether he could have got a safer position or not.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, § 1379.]

Appeal from Court of Common Pleas, Philadelphia County.

Action by Frank V. Harding against the Philadelphia Rapid Transit Company. Judgment for defendant, and plaintiff appeals. Affirmed.

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

John McConaghy, Jr., for appellant. Russell Duane and Thomas Leaming, for appellee.

PER CURIAM. There was no evidence of defendant's negligence. The plaintiff had no recollection of the accident and the witnesses on his side who saw it only said in general terms that when the two cars passed each other the running board of the one on which plaintiff stood was crowded and several men jumped, fell or were pushed or brushed off.

A witness for the defense testified that as the cars passed, a man on plaintiff's car extended his hand, grasped the other car, and was thrown backwards against the men behind him, including plaintiff. This is the most plausible account that was given, and apart from it there is nothing to show that plaintiff on the approach of the car did not lose his nerve and jump or fall from the car. Under the circumstances there was no presumption of negligence on the part of defendant, but even if it had been clearly shown, it would have been altogether immaterial. Plaintiff was riding voluntarily in a place of manifest danger, and in so doing he assumed all the risks of the situation. It is settled law that it is contributory negligence which will bar recovery, to stand on the platform, or the running board of a car, when a place can be reached inside. Thane v. Traction Co., 191 Pa. 249, 43 Atl. 136, 71 Am. St. Rep. 767; Bumbear v. Traction Co., 198 Pa. 198, 47 Atl. 961. And it is equally clear that one who takes a position of manifest and imminent danger assumes the risk of his position whether he could have got a safer place or not. Bard v. Traction Co., 176 Pa. 97, 34 Atl. 953, 53 Am. St. Rep. 672; Malpass v. Pass. R. R. Co., 189 Pa. 599, 42 Atl. 291.

It is argued by appellant that he was not warned by the conductor of the danger of his position. But the lowered bar was sufficient warning in itself. It was notice that the running board on that side was a place of danger, and that passengers were not expected, nor so far as the company could control the situation, permitted, to use it, even for the limited purpose of getting on or off the car for which the running board is intended. The alternative offered by plaintiff of having to wait for another car and thus being late in getting home is no justification. In any other country than this, plaintiff would have been forcibly prevented from getting on the car at all after the number of passengers had reached the limit of safety or even of convenience. To attempt the enforcement of such a regulation here would certainly lead to continual quarrels and breaches of the peace. A reasonable amount of concession, therefore, to the American's impatience of control and confidence in his own ability to take care of himself should not be visited with punishment by the infliction of penalties on the company for the passenger's own fault. It must be definitely recognized that one who undertakes to ride on the running board outside of a lowered bar, is negligent per se, and cannot recover for injuries incident to his position, whether he could have got a safer position or not. Judgment affirmed.

(217 Pa. 27) NORTH BRADDOCK BOROUGH v. MONONGAHELA ST. RY. CO.

(Supreme Court of Pennsylvania. Jan. 7, 1907.) 1. MUNICIPAL CORPORATIONS-BRIDGES-CONTRACT WITH RAILWAY COMPANY.

A street railway company agreed with a borough to build a bridge, with approaches, so that they would be a part of a municipal street, paved and curbed. A sufficient surface could be obtained only by extending the base of the embankment beyond the limits of the street, so as to encroach on private property, or, if the base was restricted to the street limits, by the building of a retaining wall. The city had not acquired any land for any extension of the width of the street: but the railroad company constructed retaining walls only a part of the distance, and for the remainder widened the base so as to encroach upon private land. On refusal of the railroad company to construct the retaining walls any further, the city finished the work. Held, that the railway company was bound to build such retaining walls, and the borough was entitled to recover the cost of constructing the same from the railway company. 2. SAME-CONTRACT-CONSTRUCTION.

Where a railway company and borough agreed to build a bridge and the necessary approaches, the question whether the company was to construct a sewer drop on the bridge approaches under the contract was a question of the intent of the parties, and was for the jury, in an action by the city to recover the cost of completing the unfinished work.

Appeal from Court of Common Pleas, Allegheny County.

Action by North Braddock borough against the Monongahela Street Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

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

James H. Beal and Geo. W. Herriott, for appellant. William Yost, for appellee.

STEWART, J. There can be no dissent from a number of the positions taken by the appellant in the argument of this case. The rights and duties of the appellant are those of a contractor. The same rules of construction apply to contracts with boroughs as with individuals. The acts of the parties during performance have the same weight in determining questions of intention, estoppel, etc.

This concession, however, advances us but little in determining the real questions in this case.

Appellant, by the acceptance of the borough ordinance and in consideration of the privileges granted, engaged to build a new bridge over Tassey's Hollow which would connect Hawkins avenue with Swissvale, and to reconstruct an old bridge, known as "East" or "Sixth Street" Bridge, forming part of Hawkins avenue. The ordinance indicated, specifically enough to avoid dispute, the work required to be done in the construction and reconstruction of these bridges. It stipulated, in addition, that appellant should also build the approaches to the bridges, but did not specifically state how or in what manner

these were to be constructed. Embankments were necessary, and these were constructed of sufficient height, supported laterally by concrete retaining walls, running back an average of some 40 feet from the abutments of the East Street Bridge, with an average height of about 20 feet. These walls were adequate so far as they extended, but they did not extend along the entire embankment. Beyond where the retaining walls stopped the required support was obtained by enlarging the embankment at the base. This extended it beyond the limits of the street, and was an encroachment upon private property at the side. Appellant left the work in this condition, and, upon its refusal to construct the retaining walls any further, the plaintiff proceeded to finish the work. If this supplemental work done by the plaintiff fell within the appellant's engagement under the accepted ordinance, the recovery in this behalf was proper, since the actual amount expended in connection therewith is not questioned; nor is the necessity for the work questioned, if the embankment was to be otherwise maintained than by the extension at the base over and upon private property.

It is not denied that the approaches as constructed by appellant afforded a surface space corresponding to Hawkins avenue in the condition it then was, and the contention of the plaintiff is that this was all that was required under the contract. The provisions of the ordinance with respect to the construction and maintenance of the company's road, both on bridges and highway, and the situation generally, show conclusively enough, we think, that the improvement of Hawkins avenue, so as to make it a municipal street, curbed and paved, was in contemplation, and that the parties contracted with that in view. In construing the contract, the situation of the parties at the time is to be considered, and the object in view. If the latter is evident, and we think it clearly is in this case, the law will imply that the party engaging to do the work engaged to do what was within the common intent with respect to it, and that it made such agreement as under the circumstances disclosed it ought in fairness to have made.

No other conclusion is warranted than that the parties here were contracting for the kind of approaches that would be suitable under the improved conditions of the avenue. Adequacy of surface could only be secured in one of two ways, either by extending the base of the embankment beyond the limits of the street, or, if the base was to be restricted to the street limits, by building a retaining wall for lateral support. While it is true the plaintiff had the right to acquire by condemnation the private property adjoining for purposes of the bridge, it had not acquired it, had taken no steps looking to its acquisition, and nothing in the ordinance gave any reason to suppose that such proceeding was contemplated. Under such cir