be corrected and that an omitted credit | money. He said his boys were getting of $20.00 be allowed they will be accommodated. All the other exceptions are directed against the award on a note of six thousand dollars of which the testator was the maker and Nelson N. Boyd the payee, and which can be considered as a single assignment of error. "It is admitted by counsel for all parties that if Squire Wm. C. Whiteside were called and qualified, he would testify that he was present on April 11, 1912, when the note in question was signed; that he drew the note at the instance and request of Levis Craig; that the note was signed at the American House in the City of Lancaster along about half-past one or two o'clock in the afternoon; that Levis Craig was sober and knew what he was doing; and that Levis Craig told Whiteside what the consideration for the note was the boarding, nursing, and services rendered by Nelson Boyd to him and his first wife, for which he always had promised to pay him and had never yet paid him.” along and he wanted them to feel that they had something to work for." Apparently Craig and Boyd were in accord. In the spring of 1912 by messenger Craig requested Boyd to meet him in Lancaster, which he did on April 11th, when he informed Boyd that he had sent for him to pay him, which he proposed Harriet, a sister of Nelson N. Boyd, to do by giving him a note. Happening was the testator's first wife. For about to meet Squire Whiteside, he was asked seven years the testator and she spent to write it, which he did, Craig naming much of their time at the home of Boyd, six thousand dollars as the amount of it. who lived on a farm in Little Britain | Whiteside was not called to testify, but Township, Lancaster County, Pennsyl- the following was submitted: vania. It was their habit to go there early in the spring of each year and remain until late in the fall. Some times staying eight months and some times when leaving before Christmas returning for that holiday season. Certain rooms were set apart for them and the other parts of the house were thrown open for their use as to members of a family. Not only did the Boyds, husband and wife, furnish them with bed and board, but served them and contributed generally to their needs and wants. For three years preceding her death, Harriet Craig was sorely afflicted with cancer, during which time while with her Mrs. Boyd was her nurse. This home was made a rendezvous and temporary abiding place for Craig's visitors, especially his sportsmen friends who with him indulged in the hunt; and his kennel was permanently there. Craig frequently acknowledged his indebtedness to Boyd and declared he would compensate him. The title to the farm was in him, but Boyd had paid part of the purchase money. When later it was sold the proceeds were satisfactorily divided, but the settlement then had between them had to do only with their interests in the farm. Boyd then bought a farm in Bart Township, Lancaster County, and Craig lent him five thousand dollars, which was secured by a mortgage, and which has not been paid. Craig said he would never collect the mortgage, that he would turn it over to Boyd in payment of his indebtedness to him. But he explained to John Jackson that: "he was going to charge him interest on the Under these undisputed facts the exceptants' contention that the note was a gift-a gift of a promise to give which was never executed because of the death of the donor,-that it was merely an expression of gratitude on the part of Craig, and not for a consideration, is submerged. It is unsupported by the essentials which governed in Kern's Estate, 171 Pa., 55, and Luebbe's Estate, 179 Pa., 447. There was nothing to prevent Boyd from recovering by suit from Craig in his lifetime or from his estate after his death. The amount was not fixed, but there can be no question as to a quantum meruit recovery, which might not have been less than six thousand dollars. As it happened Craig suggested the amount and it met with Boyd's approval. The services rendered by Boyd was the consideration for the note. Craig acknowledged this, promised to pay, proposed the amount and liquidated | ground. Law and the ministry, of the by giving the note-and what was there three so-called learned professions, have to overcome the note even if unsupported far more in common than law and mediby testimony of a positive consideration. cine. But perhaps the ministry is conHartman v. Shaffer, 71 Pa., 312. The sidered completely dead, and the law only consideration here is more certain than dying, and therefore more worthy of in either Sutch's Estate, 201 Pa., 305, or contempt. Certainly, many persons seem Royer's Estate, 217 Pa., 626. to think that modern medicine is best praised at the expense of modern law. The exceptions are dismissed. The decree is modified and confirmed as follows: . . . Legal Miscellang. Bar Associations and Medical Societies. BY SPENCER G. NAUMAN, of the Lancaster Bar. The meeting, within a month, of the International Medical Congress at London and the American Bar Association at Montreal, evoked interesting comparison. The presence of distinguished foreign jurists at Montreal gave that convention a certain international significance which was unusual and which may have been one of the reasons for contrasting the two gatherings. At all events, on all sides were heard criticisms of the two professions, with particular comment on the relative value of their conferences. Now, it has become the fashion at the present time to indulge in general and adverse criticism of the legal profession, ranging in scope from a scathing arraignment of our whole judicial system to a phillipic against some particular judge or lawyer. The law, it would seem, from being one of the most honored of professions, has become the most despised. Whereas, on the other hand, medicine appears to have gained tremendously in the respect, as well as the affection, of humanity. Indeed to a great many people, the doctor might be said to typify all that is up-to-date and enlightened, while the lawyer stands as a moribund symbol of an effete past. The great difficulty and injustice of such comparisons is that the two professions have really but little common Only the most ignorant or stupid person would detract from the praises which have very properly redounded to the truly marvelous developments of medicine and surgery in the past fifty years. The names of Pasteur, Lister, and Koch, not to mention many others equally eminent, will always be remembered in all honor and gratitude. The wonderful change in the whole conception of medicine-and when we speak of medicine we speak as a layman, and also include surgery-marks a distinct step in the progress of the human race. But it is not necessary to censure the law to best celebrate the advancements of the other profession. Modern medicine is too constructive, too affirmative, to need negative comparison. In an article which appeared in the "Atlantic Monthly" not long ago, the statement was made that an ancient doctor returned to life would feel completely lost in a modern operating room, whereas a lawyer practising before Lord Coke could readily familiarize himself with modern procedure in a half hour's time. This statement was supposed to conclusively demonstrate the disparity between the two professions. As a matter of fact, it does nothing but show that human nature has changed but little since Lord Coke's time. It has nothing whatever to do with professional advancement. For the law is primarily, and above everything else, a science of human nature, just as medicine is a science of the human body, and in that we have the great and essential difference and similarity. The doctor works with the unchanging, immutable laws of the physical world; the lawyer with all the strange desires and vagaries of mankind. The law, moreover, is of necessity conservative. It is the embodiment of the wisdom and the experience of the past. Only when conditions and circumstances have become well settled and defined are they capable of being subjected to a definite statute. To do otherwise would be to continually make new laws to fit temporary conditions, with the result that these laws would have to be repealed almost as soon as they were enacted. There is an element of humor in the picture of a state legislature meeting to repeal laws, instead of passing them, that must appeal to anyone who has had personal experience with the average representative. His sole ambition seems to be to place on the statute book laws dealing with every possible and impossible subject, completely reckless of either their efficacy or results. In fact, he is the living example of the futility of ill-advised change. The law, therefore, can only progress as human nature and human aptitude for self-government progress. The founder of the Christian Religion recognized only too well the uselessness of reforming mankind from above, and clearly comprehended that the mere enactment of laws was unavailing until the individual had become ready for those laws. To criticize the law because it remains fixed in spite of the efforts of every ignorant, superficial demagogue, is to criticize it for its greatest virtue. Its stability is the very reason of its strength. To change with every prevailing mood and fashion would be to trade present order for future anarchy. Again, in the matter of judicial procedure, which is denounced as such a flagrant defect in the "archaic conditions of the law," the same argument holds good. The lawyer and the judge are not solely to blame for the admittedly imperfect system, for the simple reason that they alone are not responsible for those conditions. The jury. system, the behavior of witnesses, and the question of appeals, all comprehend far more than those particular subjects. To hold the lawyer liable for their shortcomings is to make him the scapegoat of all the discrepancies of humanity, whereas he is merely an integral part of the whole system. Medicine, on the other hand, deals with impersonal scientific laws, and can, so to speak, discount human nature. Or rather, in the treatment of its cases, it need only consider the individual, and need not concern itself with that collective mass called the state. And there is even more difference in this distinction than is at first apparent. The individual is always more amenable to influence than the mass, and when the individual's life or comfort is involved, he is doubly amenable. For this reason, the doctor is allowed to work out his theories and produce his results with a freedom that is altogether denied the lawyer in his efforts to reform the law. Consequently, medicine has in the last half-century become an entirely different profession to what it was before, whereas the law is to all intents and purposes the same. Finally, in the matter of the relative merits of the two conventions at London and Montreal, it is claimed, and it must be admitted that the claim has certain merit, that while the meeting of the Medical Conference is fraught with many concrete results and active accomplishments, the deliberations of the lawyers have little material consequences But the Medical Conference is a meeting of scientists, discussing scientific questions amongst themselves. Opposed to the conference of experts, the Bar Associations are only advisory bodies. No matter how keenly they may be aware of the need of certain changes, no matter how strongly they may desire them, their efforts are largely dependent on the wishes of other people. Behind their recommendations are the Federal Congress and state legislature, with all their attendant failures and mistakes. And behind them is the great mass of ignorant, unthinking, careless humanity wavering between the influences for good and evil. Truly, if the Bar Associations. accomplish anything, it is nothing short of miraculous.-Case and Comment. tered judgment on the case stated for LANCASTER LAW REVIEW. plaintiff for $500 (see supra, page 17), and she thereupon took this appeal, as VOL. XXXI.] FRIDAY, APRIL 3, 1914. [No. 22 signing error as follows: Superior Court. Sellers, Appellant v. Myers. Wills-Construction-Life estate with power of consumption Precatory words. A testatrix, in her will, provided "I make and bequeath unto my husband, Matthew S. Wolf, all my personal property and real estate," and added, After the death of my husband, Matthew S. Wolf, if there be any real estate left or personal property left, I want the one-half to go to my parents, if living, if not living, to go to my nieces and nephews." She was survived by nephews and nieces and her husband who subsequently died, leaving the real estate which had belonged to his wife unconverted and unencumbered and devised all of his property to his sister. Held, That the husband's sister took under his will a half-interest in said real estate and the other half passed under the will of the testatrix to her nephews and nieces. Where a testator gives to a first taker the estate or the power to consume it, and yet manifests an expectation that it shall not all be consumed, and the question as to whether the will has limited the estate given or attempted to deprive the estate of some of its essential legal properties, arises the actual intent of the testator must be discovered, not by treating the first clause as paramount and controling, but by considering all the clauses as a connected whole as expressive of the intent, in the absence of anything to give rise to the contrary presumption. Appeal No. 215 of October Term, 1913, from judgment of C. P. of Lancaster Co. for the plaintiff, Mary C. Sellers, and against the defendant, John H. Myers, in a case stated. The case stated was brought to interpret a will which left a testatrix's property to her husband and added the clause that the testatrix "wanted" half of any property left, to go to her parents or nieces and nephews. Her husband bequeathed the property to his sister, the plaintiff, who agreed to sell it the defendant for $1,000, and he questioned her title. The Court below, Landis, P. J., en 1. The Court erred in entering judgment on the case stated in favor of the plaintiff for only five hundred dollars, as follows: "We are of the opinion that, under the terms of the case stated, judgment should be entered in favor of the plaintiff and against the defendant for the sum of $500.00. Judgment for plaintiff. Chas. I. Landis, P. J." 2. The Court erred in not entering judgment on the case stated in favor of the plaintiff for one thousand dollars. Melvin P. Miller and John E. Snyder, for appellant. Precatory words, or words not showing a clear and positive intention, are insufficient to defeat a fee previously granted. Witmer v. Delone, 225 Pa., 450. Lewis's Appeal, 108 Pa., 133. Jauretche v. Proctor, 48 Pa., 466. Second Reformed Church v. Disbrow, 52 Pa., 219. Karker's Appeal, 60 Pa., 141. Gilchrist v. Empfield, 194 Pa., 397. 214. See also Moyer v. Reutscher, 231 Pa., 620. Bowlley v. Thunder, 105 Pa., 173. Hopkins v. Ghent, III Pa., 287. McIntyre. McIntyre, 123 Pa., 329. Good v. Fichthorn, 144 Pa., 287. Levy's Estate, 153 Pa., 174. F. Lyman Windolph, for appellee. The words "I want" as used by the testatrix were not merely precatory, but were mandatory. Pennock's Estate, 20 Pa., 268. Fox's Appeal, 99 Pa., 382. 467. by considering all the clauses as a connected whole and by presuming, in the absence of anything in the will to give rise to a contrary presumption, that all of them were deemed by her necessary to express her full intent. We think it clear that her will, thus viewed, manifests an expectation on her part that the whole estate, realty and personalty, being blended in the gift, might not be consumed by her husband in his lifetime, and also manifests an intention that what should be left after his death should go to certain other persons. That such construction of her will would involve no implication of intention on her part to deprive the estate given to him of any of its legal incidents, but would involve only a lawful limitation of the estate | given, is so well shown in the opinion filed by the learned judge below, and in the cases cited and reviewed therein, that we do not deem it necessary to pursue the discussion of that precise question further. We shall only add a word as to the question whether the language of February 26, 1914. Opinion by RICE, the second clause of the will is precatory Taylor v. Martin, 20 W. N. C., 27. A life estate coupled with a power of consumption in good faith may, and indeed inevitably must, arise from language such as that used by Mrs. Wolfe, and that our courts have frequently so decided in cases which are essentially precedents to this one. Fassett . Seip, 240 Pa., 406. P. J. or mandatory. If, in disposing of the one-half of the unconsumed part of the estate which should be left, she had said, Where the testator gives the first taker the estate, or what is practically the same thing, the power to consume the whole," I direct it to go," instead of “I want and yet manifests his expectation, if not it to go," there would be no room for his intention, that it shall not all be con- argument that the construction above sumed, the question arises whether the stated is not the correct one. To that will has limited the estate given, or has extent the case cited by the learned judge attempted to deprive the estate given of-Fassitt v. Seip, 240 Pa., 406-is consome of its essential legal properties. It is along this line of distinction that the many cases involving the construction of wills similar to the one in question must be classified: Allen v. Hirlinger, 219 Pa., 56. It was said, in the same case, that while similar language has been differently construed in different wills, yet the difference has been in the application, not in the guiding principle. "The effort has uniformly been to discover the actual principal intent of the testator, and where that has been clear there is no case in which it has been departed from." Applying this guiding principle in the present case, we are to seek the actual intent of the testatrix, not by treating the first clause of her will as paramount and controlling, but clusive. But the word "want" is often |