interpolation is for the jury, to be determined as other cases. In Wikoff's Appeal (3 Harris, 281), following the Earl of Essex's Case (1 Show. 69), it was held that a will may be made on distinct pieces of paper; that it is sufficient if they are connected by their internal sense, and that even if there be some confusion in the order of their arrangement when fastened together, they are to be read according to their coherence or adaptation of parts. In Fosselman v. Elder (2 Out. 159), it was held that where the name and designation of the beneficial party was written not in the body of the codicil, but upon the face of an envelope in which it was found, that the inscription on the envelope should be read as a preface to and in connection with the paper inclosed therein, and that they together constituted a valid testamentary disposition.

of its identity, such paper makes part of the will, I to be established by two witnesses, and whether although it be not subscribed or even attached. there has been any subsequent or fraudulent It was contended in the argument of counsel in that case, that such a sheet annexed must be considered at the beginning or the end of the instrument merely in reference to its local annexation, without regard to the contents of the writing to which it is annexed; but JEWETT, J., delivering the opinion of the Court, says: "I cannot agree that such a circumstance can have the effect to constitute the paper referred to, the beginning or end of any instrument, in the body of which reference is made to it or its contents, whether annexed in fact or not. If the map on file in the Register's office or a reduced copy of it annexed may be treated as a part of the instrument, and I think it may (Habergham v. Vincent, 2 Vesey, Jr. 228; Bond v. Seawell, 3 Burr, 1775; Wilkinson v. Adam, 1 Vesey & Beams, 445), its contents must be incorporated and distributed in it to the extent of the several references made to it, at the places where made, and thus the contents of the paper to which the instrument refers will be deemed constructively inserted before the point is reached where the subscription by the decedent and signing by witnesses are made." We may also refer to similar rulings upon the same point, in Loring v. Sumner (23 Pick. 98); Wilbar v. Smith (5_Allen, 194); Johnson v. Clarkson (3 Rich. Eq. S C. 305); Chambers v. McDaniel (6 Iredell, N. C. 226); Phelps v. Robbins (40 Conn. 250); Crosby v. Mason, (32 Conn. 482).

Mr. Redfield, in his Treatise on the Law of Wills, page 264, after a discussion of the authorities, English and American, says: "The cases already referred to show very clearly that a will required to be witnessed by two or more persons, or executed with any other prescribed formalities, may nevertheless adopt an existing paper by reference; and this is true of others, soon to be referred to, many of which were decided during the existence of statutes requiring such formalities; so that we cannot escape from the force of these cases by supposing they had reference exclusively to wills of personal estate, when no particular formalities were required under the earlier English statutes."

Thus the general principle has been clearly established, that a will is to be read in such order of pages or paragraphs as the testator manifestly intended, and the coherence and adaptation of the parts clearly required. In writing a will upon the pages of foolscap paper a testator may or may not conform to the order of the consecutive pages of the folio; there is no law which binds him in this respect. He may begin upon the fourth page of the folio and conclude upon the first, or he may commence upon the first, continue upon the third, and conclude upon the second. In whatever order of pages it may be written, however, it is to be read, as in Wikoff's Appeal, according to the internal sense and the coherence or adaptation of parts. The order of connection, however, must manifestly appear upon the face of the will, it cannot be established by extrinsic proof. Whilst, therefore, the end of the writing in point of space, may in most cases be taken as the end of the disposition, it does not follow that in all cases the signature must of necessity be there written, if it be written at the end of the will, according to such connection and arrangement of the pages or sheets as the obviously inherent sense of the instrument requires.

Where, however, the continuity of a writing, In our own State we find no case at variance otherwise complete, is attempted to be broken by with the doctrine of the cases stated. The rulings the insertion into it of a clause or paragraph of this Court on questions similar in effect and written upon the same or a different page or preliminary in their nature to that under consid-sheet, the clause to be inserted must be plainly eration, have, in every instance, been in con- referred to, and be susceptible, also, of certain formity with the views here expressed. In identification. The reference must, as we have Ginder v. Farnum (10 Barr, 98), it was held that where a will is written on several sheets of paper fastened together with a string, proof by two witnesses of the signature of the testator at the end thereof is sufficient; that it is the signature, not the factum or body of the will which is

already shown, be complete in the body of the will. The testator's intention cannot otherwise appear; it cannot appear by extrinsic proof; but the identification of that which is sought to be inserted, in the nature of the case, may be the subject of extraneous proof.

A plain distinction is to be drawn between the | rection. The clause in the will has no meaning case at bar and that of Hays v. Harden ( 6 Barr, without these words; it is a sentence without any 409). In that case there was no reference what- sense, begun but never finished. The testator ever, in the paper purporting to be the will of John Hays, to the clause which followed; there was no word or mark in the body of the will indicating any intention of the testator at the time of execution, that the appended, unattested clause should be drawn into and inserted at any designated place.

Referring then to the will of George Baker, we see that the several items contained in it are in their order, from the beginning to the end of the disposition, consecutively numbered in Roman numerals; at the fourth item, we find the following:

"4. I give and bequeath to David S. Baker, our son, two hundred (see next page).

The erasures in this 4th item are presumed to have been made before the signing and attestation, but they have some significance, in this inquiry, inasmuch as the subject of the devise to David S. Baker is the only matter erased. The numeral "4," and the name of David S. Baker, the beneficial party under it, remain; a fact which is entirely consistent with the idea that the error to be corrected by the erasure was as to the thing devised. The words which are not erased contain a clear reference to something to be found on the next page; something which is to constitute part of his will; otherwise the reference in that connection is without meaning, and something is to be inserted at the place of the reference. This is as apparent as if it had been fully expressed in as many words.

at the end of this unfinished part of the will puts a mark, and at the back of the will he puts a corresponding mark, before certain words which finish the sentence. It is obvious, therefore, that if all this was done before the will was executed, the testator intended that which was physically on the opposite side of the page to be read in as if it preceded his signature. It is, therefore intended to be part of the will. It will be better, therefore, in construing the words of the statute, to treat these words as if they preceded the signature, although they seem to follow it."

So in this case, without the insertion of something the fourth item is without meaning; it is, in the language of Lord PENZANCE, "a sentence without any sense, begun but never finished." It purports, in the outset, as the fourth item of the will, to contain a devise or bequest to David S. Baker, but by the erasure it is broken off abruptly before the disposition is completed. It is apparent that in the body of the will there was not room for completion, and therefore reference is made to the next page. This reference is clear in its purpose and specific in its terms; neither can be mistaken. If the words, "For the fourth item of this will containing a devise to David S. Baker, see next page," had been employed, they would not convey a more specific meaning than is conveyed by the words and figures actually employed. That the testator's intention was, to incorporate into his will, by insertion at the place indicated, something to be In the Goods of Birt, 24 L. T. R. 142, the will found on the next page, is perfectly apparent of Charles James Birt, after a devise to the tes- and obvious; no one in reading the instrument tator's wife for life, contained the following: could doubt the testator's purpose in this respect. "With the full understanding that the four free- The physical annexation of the pages, taken hold cottages at Finchley, in the county of Mid-with the uncontradicted proof, affords the cleardlesex, and called by name and known as num-est and most satisfactory evidence of identificabers 1, 2, 3, and 4, Arlington cottages (see over, tion. The "next page" of the folio cannot be C. B.)" mistaken, and referring to it, we find a clause Upon the back of the will there was written thereon written in the same hand, in the form *that the said four cottages, at her decease, following:should be given and shall then belong to my daughters Ellenor and Elizabeth, now the wife of Mr. Cuthbertson, and the said four houses to be her own property, and under her sole control. "CHARLES BIRT."

*

"4th. I give and bequeath to our son, David S. Baker, Two thousand to be paid in rotation of numbers. I give and bequeath to our grandchildren, Margaret Baker and George Baker, daughter and son of David S. Baker, Five hundred dollars each, to be paid in rotation, to Lewis J. Baker, whom I appoint guardian for the same. Also I appoint the same guardian for G. M. Baker's two girls Viola and Ella."

It was shown by parol, that the words on the back of the will were written there by the testator before he signed the will. They were not attested, however, by the witnesses as the English statute required; indeed, the witnesses knew nothing of It is true that this writing contains more than it. Lord PENZANCE, in admitting this will to a devise to David S. Baker; but this we think is probate, says: "I have no hesitation in saying, not important as its identification as an entirety that the words written at the back of this will is put beyond question. We are of opinion, ought to be included in the probate; the reason therefore, that by force of the reference in the and good sense of the thing are in the same di- | body of the will of George Baker and the clear

identification of the matter referred to, the writ-
ing on the fourth page is ipso facto drawn into the
body of the will, and constitutes the 4th item or
clause thereof; and although the instrument thus
formed is not signed by the testator at the end
thereof, in point of space, it is signed at the end
of the will, in point of fact, which is in confor-
mity with the requirement of the Act of 1833.
The decree of the Orphans' Court is, therefore,
reversed, and it is ordered that the decree of the
Register be re-instated.

Opinion by CLARK, J.
MERCUR, C. J., dissents.
PAXSON, J., absent.

[Cf. Houser v. Moore, 7 Casey, 346.]

Oct. & Nov. '84, 109.

A. A. O.

October 31, 1884.

Pier et al. v. Siegel et ux.

Married women- -Purchase on credit-Separate estate-Right's of husband's creditors.

this property to Mrs. Gerhardt, to secure the
bond of Frank Siegel and wife for $3500. No
part of this money had been repaid, only a
portion of the interest. All of Mrs. Gerhardt's
negotiations in reference to this money were
with Mrs. Siegel. She said she gave Mrs. Siegel
the money to aid her and her family in distress.
When Mrs. Siegel told her that she (Mrs. S.)
could never repay the money, Mrs. Gerhardt
replied, "Don't worry about that; if you ever
sell it" (the house)
you can pay me back."
On cross-examination, however, Mrs. Gerhardt
stated distinctly that she loaned the money.

66

On June 14, 1881, the plaintiffs obtained judgment against Frank Siegel, issued execution, and the property in question was levied upon, condemned, and all the title and interest therein of Frank Siegel was sold by the sheriff to the plaintiffs. They thereupon brought this action of ejectment to recover possession of the property.

The plaintiff submitted the following point :"That under all the evidence in the case the If a married woman, having no separate estate, pur. Exception. (First assignment of error.) verdict must be for the plaintiffs." Refused.

chase real estate for cash, with money given her by a friend, to secure the payment of which the husband and wife subsequently give their bond secured by mortgage upon the property so purchased, she cannot hold the property as against her husband's creditors.

Error to the Common Pleas No. 1, of Allegheny County.

Ejectment, by Rufus W. Pier and Henry F. Dannals against Frank Siegel and Catherine Siegel his wife, to recover possession of a lot of ground in the Twenty-eighth Ward of Pittsburgh, Penna. Plea, not guilty.

Upon the trial, before COLLIER, J., the following facts appeared :

Prior to April 1881, Frank Siegel, one of the defendants, became insolvent. He was indebted to the plaintiffs in a considerable sum of money.

The defendant submitted the following point:

"That under all the evidence the verdict should be for defendants." Answer. “Affirmed, if the transaction was in good faith." Exception. (Third assignment of error.)

The Court charged, inter alia, "That if this lady borrowed the money in good faith, although she borrowed it, it would be buying it from a third person without the husband having any

thing to do with it. No arrangement about it in any way. In that case I think she could hold the property." Exception. (Fifth assignment of error.)

error, inter alia, the answers of the Court to the points presented by plaintiffs and defendants, and also that the Court erred in submitting any question to the jury under the evidence.

The jury found a verdict for the defendants He was a glass-blower by trade, and also kept a the plaintiffs took this writ and assigned for upon which judgment was entered. Whereupon saloon, the business of which was mainly entrusted to his wife. After the husband's insolvency, all his property was sold by the sheriff. Siegel and his wife and family were all living together at the time of the sale, and have been ever since. It was an admitted fact that Mrs. Siegel had no separate estate of her own. She was not a feme sole trader, and had never petitioned the Court to be declared entitled to her separate earnings.

William S. Pier, for plaintiffs in error. As against the husband's creditors the presumption is the property was the husband's, and plaintiffs having shown their purchase of the husband's title, the burden was upon the dethe wife through other means than the husfendants to show clearly that the land came to

band's.

Leinbach v. Templin, 15 WEEKLY NOTES, 17. Gamber v. Gamber, 6 Harris, 363; and other cases cited in opinion infra.

About the time of the sheriff's sale of Siegel's house and saloon, Mrs. Elizabeth Gerhardt, a friend of the family, gave Mrs. Siegel $3500, with which she purchased in her own name a house and lot, into which the Siegel family moved April 1, 1881, and a saloon was opened They attempted to show this by proving that in the name of the wife. Subsequently Frank the wife borrowed the money from a friend of Siegel and his wife joined in a mortgage upon the family. It was Frank Siegel's credit which

secured the $3500.

bond for its payment. A married woman cannot purchase on her individual credit. To sustain a married woman's contract she must have, at the time, a separate estate, upon the credit of which she may sometimes borrow, and about which she may otherwise contract.

He alone was liable in the As a general rule, where husband and wife are in the joint possession or occupancy of personal or real estate, the law presumes the property to belong to the husband, and this presumption continues until the wife shows that she acquired it by means not derived from her husband, and the burden of proof is upon her to prove that she so acquired it. The decisions in ber v. Gamber, 6 Harris, 363; Keeney v. Good, this State upon this point are uniform. (GamAuble v. Mason, 11 Casey, 261; Hallowell v. 9 Id. 349; Topley v. Topley, 7 Casey, 328; Horter, Id. 375; Walker v. Reamy, 12 Id. 410; Winter v. Walter, 1 Wright, 155; Rhods v. Gordon, 2 Id. 277; Robinson v. Wallace, 3 Id. 129; Aurand v. Schaffer, 7 Id. 363; Gault v. Saffin, 8 Id. 307; Baringer v. Stiver, 13 Id. 129; Hoffman v. Toner, Id. 231; Flick v. Devries, 14 Id. 266; Curry v. Bott, 3 P. F. S. 400; Seeds v. Kahler, 26 Id. 262; Sixbee v. Bowen, Io Norris, 149.) The disability of a married woman to contract is a rule of the common law

Wieman v. Anderson, 6 Wright, 311; and other cases cited in the opinion. This land came to the wife through the husband's means, his bond and covenants; and at the time of the conveyance he was indebted to the plaintiffs, upon which debt they recovered judgment and the land was sold to them. It was liable to satisfy their judgment, and being so indebted he could not convey it to her without a valuable consideration.

Garrison v. Monaghan, 9 Casey, 232. There was no question for the jury under the evidence, which was undisputed.

Burleigh (Harbison and Geo. N. Monro with him), for defendants in error.

Mrs. Siegel had a separate estate of her own, one that came to her independently of her husband. It was no matter how the money came to her so that it did not come through her

husband. A similar case is

Conrad v. Shomo, 8 Wright, 193. See, also,
Baringer v. Stiver, 13 Id. 129.
Aurand v. Schaffer, 7 Id. 363.

Goff v. Nuttall, 8 Id. 78.

Manderbach v. Mock, 5 Casey, 43.

so familiar that a reference to it seems almost ments did not, and were not intended to change unnecessary, and the Act of 1848 and its supplethe law in this respect, except to bind her separate estate in special cases and in the manner therein specified. This is settled by abundant authority. It is sufficient to refer to Caldwell v. Walters (6 Harris, 79); Glyde v. Keister (3 Wright, 299); Keiper v. Helfricker (6 Id. 325);

The mortgage was the principal security for Steinman v. Ewing (7 Id. 63); Schlosser's

the loan.

Brown v. Pendleton, 10 Sm. 419.

Glass v. Warwick, 4 Wr. 140.

Rumborger v. Ingraham, 2 Id. 146.
Patterson v. Robinson, 1 Casey, 81.

Appeal (8 P. F. S. 493); Tiernan's Appeal (5 Norris 447). It is also a rule too firmly established in this State to be shaken, that a married woman cannot buy either real or personal estate⚫

The Act of 1848 clearly embraces cases such upon credit, unless she is the owner of a separate as this.

estate, in which case she contracts upon the credit of such estate. (Robinson v. Wallace, 3

Baringer v. Stiver, 13 Id. 129; Hoffman v. Toner, Id. 231; Rush v. Vought, 5 P. F. S. 437; Brown v. Pendleton, 10 Smith, 421; Seeds v. Kahler, 26 Id. 262.) It was said in Bucher v. Ream (18 P. F. S. p. 426): "If she (a married woman) purchases property with borrowed money or on credit, it belongs to her husband as it respects his creditors, and is liable for his debts." The same doctrine was re-asserted in the recent case of Lochman v. Brobst (14 WEEKLY NOTES, 134), and many of the authorities are there referred to.

January 5, 1885. THE COURT. The ques-Wright, 129; Wieman v. Anderson, 6 Id. 311; tion of the good faith of this transaction has been settled by the verdict of the jury. We have only to consider its legal aspect. The facts are not disputed. Catharine Siegel, one of the defendants below, is a married woman; has never been a feme sole trader, and has not any separate estate. She bought the house and lot which is the subject of this controversy, took the deed in her own name, and paid for it wholly with money borrowed from a friend. Subsequently she joined with Frank Siegel, her husband, in giving a bond and mortgage upon the house for the borrowed money. The property was then It remains to apply these well-settled princilevied on upon an execution issued upon a judg-ples to the case in hand. If Mrs. Siegel had ment recovered against her husband, and the given the bond and mortgage of herself and her right, title, and interest of the latter sold by the husband to the vendor for the purchase-money sheriff to the plaintiffs below, who brought this it is too plain for argument, under the authoriaction of ejectment to recover the possession. ties, that the equitable title would have been in The question for our consideration is whether her husband and liable for his debts. Does it the title thus acquired by Mrs. Siegel is good make any difference that she paid the vendor the against her husband's creditors.

purchase-money by means of a loan obtained from a friend? We think not. It was still a credit. Upon whose credit? Not upon her credit, certainly, for she had no personal credit; the law permits her none, and she had no separate estate upon the credit of which she could contract. The purchase was upon the credit of her husband; he gave his bond for the whole of the money, and upon a judgment recovered upon that bond his other property, if he has any, may be swept away and applied in payment for the real estate in controversy. In such cases what would be the remedy of the creditors if we allow the title of the wife to stand? It requires but a moment's reflection to see that were we to sanction the doctrine contended for by the defendants in error, we would open the door to the most serious frauds. It would enable married women, whose husbands are embarrassed, to buy upon credit, give the obligation of their husbands for this purchase-money, and apply his property through the machinery of the law in payment.

On the trial, before WILLSON, P. J., the evidence on behalf of the plaintiff was to the following effect: On June 19, 1880, John Russell, the son of the plaintiffs, and at that time about eighteen years and six months old, was killed while digging coal in the mines of the defendants. The plaintiff, Hugh Russell, testified that his son John had been engaged in mining coal since he was thirteen or fourteen years old, and during the last two years before his death he had been mining on his own account; that he was a good workman and could earn over fifty dollars a month. He further testified that on June 19, 1880, while he and his son were eating their dinner together in the mine, Hipplewhite, the pit-boss, came to them, and Russell told him that "his boy's head ached, and he was in bad air, and he was going home." Hipplewhite said, "We are scarce of coal, and he musn't go home;" and, said he, "John, you go up into James Whalen's cutthrough, and dig six or seven wagons of coal this afternoon."

I said he shouldn't go there; and said he,

We are of opinion that the plaintiffs' first point should have been affirmed, and a binding direc-"What is the reason?" Said I, it is not safe, tion given to the jury to find for the plaintiffs. The judgment is reversed and a venire facias de novo awarded.

Opinion by PAXSON, J.
GREEN, J., absent.
STERRETT, J., dissents.

Jan. '83, 26.

J. M. S.

and I told him that he wouldn't and couldn't go there. And he said, "What is the reason ?" I told him it wasn't safe for no person, and he said it wasn't safe; and he said it was safe enough; and I said: well, to make a long story short, he ain't going there. And he just poohpoohed at me--made fun of me. So I says: he's not going there. And he stood around, and I told him Mr. Jenkins had just left that place. That was another coal digger. He had went February 4, 1884. home; he was scared to work in it. And, said I, would it be right to put that boy in there when men wouldn't work with it? And he said, John, you come on, and we will look at it." They started off and I says: now mind you don't put him in that place; and they walked on, and that was the last I ever talked with the boy again.

Russell v. Hutchinson.

Negligence Miner Children- Parent and child-Contributory Negligence.

66

A., a lad between eighteen and nineteen years of age, who had several years' experience in mining and was able to The boy did go to said place and was killed perform the labor of a man of full age, and had been for while mining there. The testimony of other two years working for himself, was killed in a dangerous witnesses called by plaintiff showed that the danportion of a mine where he had been set to work by the pit-boss. A. knew the dangerous condition of the cham- gerous condition of the room in which the acciber in which he was killed, and had been especially dent occurred was well known to the miners. advised and cautioned by his father not to enter it. He, On the conclusion of the plaintiff's testimony however, followed the pit-boss to the chamber and under the Court entered a compulsory nonsuit, which the direction of the latter set to work in it and was killed it subsequently refused to take off, filing an opinby the roof falling upon him. In an action brought by A.'s parents against the owners of the mine: Held, that A. had been guilty of such contributory negligence as precluded recovery for his death.

Error to the Common Pleas of Fayette County. Case, by Hugh Russell and Margaret, his wife, against Archibald A. Hutchinson and Thomas B. Hutchinson, partners, trading as Hutchinson & Brother, to recover damages for the death of a son alleged to have been killed through the negligence of the defendants.

ion in which it said, inter alia: "We find also by the testimony, that the condition of the room where the accident occurred by which the young man lost his life, was well known to the miners in that bank. As one witness said, by talking through each other they acquired a knowledge of the condition of the bank, and had been talking of the condition of that particular place. But independent of the general knowledge that all miners are supposed to have of the place in which they are working, the evidence shows that the