Opinion by
Beavek, J.,
Title to tbe land in dispute was shown in Samuel Weaver, Sr., who died, leaving to survive him his widow, Elizabeth, and minor son, Samuel, Jr., and eight brothers and sisters or their descendants. The widow was subsequently married to Jacob Brubaker and died on or about- September 5, 1887. Her son, Samuel Weaver, Jr., died in his minority, intestate, unmarried and without issue. Under the intestate laws, therefore, his mother, then Elizabeth Brubaker, became tenant for life of the farm of forty acres in Juniata county, owned in his lifetime by her former husband, Samuel Weaver, Sr., title to which is now the subject of dispute in this action of ejectment.
The widow would seem to have admitted the title of her husband to the land in question^- having, on April 18, 1825, presented her petition to the orphans’ court of Mifflin (now Juniata) county, in which she sets forth: “That your petitioner’s husband lately died intestate, leaving one child— Samuel Weaver — now about two years old; that your petitioner’s husband owned at his decease about forty acres of land in Walker township aforesaid, besides some personal property.” This petition, although offered and admitted in evidence, is not printed in the paper-book of the appellant, but the omission is supplied by the appellee.
It appears from the evidence that the widow, after her remarriage and the death of her son, leased this farm to David Weaver, the ancestor of the defendants, from whom, for a time at least, she received an annual rental, and that she devised it to him in her will, which was probated on September 14, 1887. The writ of ejectment was issued August 13, 1902, about fifteen years after the death of Elizabeth Brubaker.
The action, as originally brought, purported to’be in the name of the heirs at law of all the brothers -and sisters of Samuel Weaver, Sr., — eight in number — except the descendants of David Weaver, who were defendants.
Upon a rule to show cause why the plaintiff’s attorneys should not file their warrant of attorney, it was agreed, upon [431]*431the argument of the rule, that the names of all parties plaintiff might be stricken out, exeept that of Joseph S. Weaver, and the record was so amended.
The plaintiff is one of four children of Jacob, one of the brothers of Samuel Weaver, Sr. The claim is, therefore, for the 1 /32 part of the land in dispute.
In the absence of any evidence of ouster of the heirs at law of Samuel Weaver, Jr., and of an intention on the part of David Weaver to claim by adverse possession, during the lifetime of the mother, the claim of the defendants that they had title under the statute by such possession rests upon a very slender foundation. We fail to find anywhere in the testimony the hoisting of any flag of defiance, any act of hostility or any adverse claim to the title of the remaindermen, until after the death of the life tenant. The acts of their ancestor in repairing and rebuilding, in clearing, ditching and draining, are all entirely consistent with the duty which the life tenant, whose lessee he was, owed to the estate. After the death of Elizabeth Brubaker — or possibly the year before her death — the assessment was changed from “Samuel Weaver’s heirs” to “David Weaver.” This, however, becomes comparatively unimportant, in view of the fact that confessedly no title could have been acquired under the statute since the death of Elizabeth Brubaker.
There seems to have been an impression in the mind of Elizabeth Brubaker that she inherited a fee instead of a life estate from her son, Samuel Weaver, Jr., and this impression may have been shared by David Weaver, her tenant, during her lifetime, and the devisee named in her will. But such a mistaken impression could not, of course, change the character of the possession, nor would it be any notice to the remainder-men, unless communicated to them and a claim of adverse holding in pursuance thereof set up. They were justified in relying upon the character of the possession which the widow and those claiming under her had a legal right to take, in pursuance of the intestate laws.
On February 25, 1902, upon the petition of the plaintiff, an inquest was awarded to make partition of the land in dispute. When the appraisers were upon the ground, endeavoring to make partition, one of the defendants served notice upon them, [432]*432June 7,1902, which reads: “Notice is hereby given that the property this day to be appraised by you belongs to the heirs of David Weaver, deceased, they having acquired title by adverse, exclusive, open and notorious possession for more than fifty years.” This is claimed by. the appellee to have been the first notice, actual or constructive, of such a claim. This, so far as we can see from the testimony, is well founded, unless the change in the assessment and the payment by David Weaver in his lifetime of the several sums mentioned in the will of Elizabeth Brubaker to be paid by him, of which no actual notice appears to have been given to the plaintiff, can be so construed.
Under the facts, as above recited, we are of opinion that the court would have been justified in affirming the eleventh point of the plaintiff — “ That, under all the evidence, the verdict should be for the plaintiff,” subject possibly to the question of the credibility of the witnesses who testified to the payment of rent by David Weaver to Elizabeth Brubaker, which was of course for the jury.
The plaintiff’s twelfth point — “ That there is no evidence in the case which would justify the jury in finding a verdict for the defendant” — was reserved. Under the verdict it was, of course, unnecessary to pass upon this point, but in the opinion of the court, overruling the motion for a new trial, it is discussed and it is said in reference thereto and in reply to the tenth reason assigned for a new trial, as to the attitude of the court: “Suffice here to say that the defense somewhat staggered us at the inception of the case. On examination of the answer filed we found that defendants first claimed the lands described in the writ by adverse possession for upwards of fifty years, and in the second part of the answer insist that they held by virtue of the provisions contained in the will of Elizabeth Brubaker, the life tenant, but ‘ who claimed to own this land in suit .... wherein and whereby she devised the lands in controversy to David Weaver aforesaid in fee,’ he to pay certain legacies therein designated, and which he actually paid.”
“ To our conception of a title by prescription this was so antagonistic that we may have hesitated and wavered somewhat in getting our bearings. It seemed then, and strikes us even more forcibly now, that at that date David Weaver not [433]*433only did not feel secure in his title, but by payment of the legacies admitted the title for life or in fee in Elizabeth Brubaker, in either of which events the statute of limitations did not begin to run until after 1887, hence the title by adverse possession did not mature, and we might have affirmed the plaintiff’s twelfth point: ‘ That there is no evidence in the case which would justify the jury in finding a verdict for the defendants.’ ”
It is claimed by the appellee that Elizabeth Brubaker made her will in 1863; that it was well known in the neighborhood that she devised, or intended to devise, the property in dispute to David Weaver; that, inasmuch as this fact was well known in the neighborhood, and the plaintiff, Joseph S.
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Opinion by
Beavek, J.,
Title to tbe land in dispute was shown in Samuel Weaver, Sr., who died, leaving to survive him his widow, Elizabeth, and minor son, Samuel, Jr., and eight brothers and sisters or their descendants. The widow was subsequently married to Jacob Brubaker and died on or about- September 5, 1887. Her son, Samuel Weaver, Jr., died in his minority, intestate, unmarried and without issue. Under the intestate laws, therefore, his mother, then Elizabeth Brubaker, became tenant for life of the farm of forty acres in Juniata county, owned in his lifetime by her former husband, Samuel Weaver, Sr., title to which is now the subject of dispute in this action of ejectment.
The widow would seem to have admitted the title of her husband to the land in question^- having, on April 18, 1825, presented her petition to the orphans’ court of Mifflin (now Juniata) county, in which she sets forth: “That your petitioner’s husband lately died intestate, leaving one child— Samuel Weaver — now about two years old; that your petitioner’s husband owned at his decease about forty acres of land in Walker township aforesaid, besides some personal property.” This petition, although offered and admitted in evidence, is not printed in the paper-book of the appellant, but the omission is supplied by the appellee.
It appears from the evidence that the widow, after her remarriage and the death of her son, leased this farm to David Weaver, the ancestor of the defendants, from whom, for a time at least, she received an annual rental, and that she devised it to him in her will, which was probated on September 14, 1887. The writ of ejectment was issued August 13, 1902, about fifteen years after the death of Elizabeth Brubaker.
The action, as originally brought, purported to’be in the name of the heirs at law of all the brothers -and sisters of Samuel Weaver, Sr., — eight in number — except the descendants of David Weaver, who were defendants.
Upon a rule to show cause why the plaintiff’s attorneys should not file their warrant of attorney, it was agreed, upon [431]*431the argument of the rule, that the names of all parties plaintiff might be stricken out, exeept that of Joseph S. Weaver, and the record was so amended.
The plaintiff is one of four children of Jacob, one of the brothers of Samuel Weaver, Sr. The claim is, therefore, for the 1 /32 part of the land in dispute.
In the absence of any evidence of ouster of the heirs at law of Samuel Weaver, Jr., and of an intention on the part of David Weaver to claim by adverse possession, during the lifetime of the mother, the claim of the defendants that they had title under the statute by such possession rests upon a very slender foundation. We fail to find anywhere in the testimony the hoisting of any flag of defiance, any act of hostility or any adverse claim to the title of the remaindermen, until after the death of the life tenant. The acts of their ancestor in repairing and rebuilding, in clearing, ditching and draining, are all entirely consistent with the duty which the life tenant, whose lessee he was, owed to the estate. After the death of Elizabeth Brubaker — or possibly the year before her death — the assessment was changed from “Samuel Weaver’s heirs” to “David Weaver.” This, however, becomes comparatively unimportant, in view of the fact that confessedly no title could have been acquired under the statute since the death of Elizabeth Brubaker.
There seems to have been an impression in the mind of Elizabeth Brubaker that she inherited a fee instead of a life estate from her son, Samuel Weaver, Jr., and this impression may have been shared by David Weaver, her tenant, during her lifetime, and the devisee named in her will. But such a mistaken impression could not, of course, change the character of the possession, nor would it be any notice to the remainder-men, unless communicated to them and a claim of adverse holding in pursuance thereof set up. They were justified in relying upon the character of the possession which the widow and those claiming under her had a legal right to take, in pursuance of the intestate laws.
On February 25, 1902, upon the petition of the plaintiff, an inquest was awarded to make partition of the land in dispute. When the appraisers were upon the ground, endeavoring to make partition, one of the defendants served notice upon them, [432]*432June 7,1902, which reads: “Notice is hereby given that the property this day to be appraised by you belongs to the heirs of David Weaver, deceased, they having acquired title by adverse, exclusive, open and notorious possession for more than fifty years.” This is claimed by. the appellee to have been the first notice, actual or constructive, of such a claim. This, so far as we can see from the testimony, is well founded, unless the change in the assessment and the payment by David Weaver in his lifetime of the several sums mentioned in the will of Elizabeth Brubaker to be paid by him, of which no actual notice appears to have been given to the plaintiff, can be so construed.
Under the facts, as above recited, we are of opinion that the court would have been justified in affirming the eleventh point of the plaintiff — “ That, under all the evidence, the verdict should be for the plaintiff,” subject possibly to the question of the credibility of the witnesses who testified to the payment of rent by David Weaver to Elizabeth Brubaker, which was of course for the jury.
The plaintiff’s twelfth point — “ That there is no evidence in the case which would justify the jury in finding a verdict for the defendant” — was reserved. Under the verdict it was, of course, unnecessary to pass upon this point, but in the opinion of the court, overruling the motion for a new trial, it is discussed and it is said in reference thereto and in reply to the tenth reason assigned for a new trial, as to the attitude of the court: “Suffice here to say that the defense somewhat staggered us at the inception of the case. On examination of the answer filed we found that defendants first claimed the lands described in the writ by adverse possession for upwards of fifty years, and in the second part of the answer insist that they held by virtue of the provisions contained in the will of Elizabeth Brubaker, the life tenant, but ‘ who claimed to own this land in suit .... wherein and whereby she devised the lands in controversy to David Weaver aforesaid in fee,’ he to pay certain legacies therein designated, and which he actually paid.”
“ To our conception of a title by prescription this was so antagonistic that we may have hesitated and wavered somewhat in getting our bearings. It seemed then, and strikes us even more forcibly now, that at that date David Weaver not [433]*433only did not feel secure in his title, but by payment of the legacies admitted the title for life or in fee in Elizabeth Brubaker, in either of which events the statute of limitations did not begin to run until after 1887, hence the title by adverse possession did not mature, and we might have affirmed the plaintiff’s twelfth point: ‘ That there is no evidence in the case which would justify the jury in finding a verdict for the defendants.’ ”
It is claimed by the appellee that Elizabeth Brubaker made her will in 1863; that it was well known in the neighborhood that she devised, or intended to devise, the property in dispute to David Weaver; that, inasmuch as this fact was well known in the neighborhood, and the plaintiff, Joseph S. Weaver, lived there, he was bound to know it; that this constituted a gift on the part of the testatrix to the defendant’s ancestor, and that, inasmuch as improvements were made subsequently to that time under the eye of the plaintiff, he was estopped now from claiming his share in the land. This general question is included, in its various phases, in the fourteenth, fifteenth, sixteenth and twenty-second assignments of error.
It is difficult to deal seriously with this proposition. Admitting that the will of Elizabeth Brubaker was made as claimed, admitting that the fact of the making of the will, and its contents, were well known in the neighborhood, it does not follow that Joseph S. Weaver knew of it, and if he did, he was not bound by it in any way, for the will could have been revoked the next day or at any time during the life of the testatrix. The mere making of a will is not even evidence of a gift, inasmuch as the will could not take effect until the death of the testatrix. All the testimony upon this subject was incompetent and was improperly admitted. The assignments of error, therefore, which are based upon it are without foundation.
The only remaining question worthy of consideration is raised by the 19th, 20th and 21st assignments of error. Was Jacob Weaver, one of the defendants, a competent witness, under the provisions, of clause E of the 5th section of the Act -of May 23, 1887, P. L. 158? This clause reads: “Nor, where any party to a thing or contract in action is dead, or has been adjudged a lunatic and his right thereto or thereun[434]*434der has passed, either by his own act or by the act of the law, to a party on the record, who- represents his interest in the subject in controversy, shall any surviving or remaining party to such thing or contraet, or any other person whose interest shall be adverse to the said right of such deceased or lunatic party, be a competent witness to any matter occurring before the death of said party,” etc. One of the. exceptions to this general proposition is: “or unless the action be ejectment against several defendants, and one or more of said defendants disclaims of record any title- to the- premises in controversy at the time the suit was brought, and also- pays- into court the costs accrued at the time of his disclaimer, or gives security therefor, as the court in its discretion may direct, in which case such disclaiming defendant shall be a fully competent witness.” The thing in action here is the land, which, descended under the intestate laws from Samuel Weaver,, Jr., to his uncles and aunts or their descendants, subject to the life- estate of his mother. One of those uncles was Jacob Weaver, through whom the plaintiff claims. Another was David Weaver, -through whom the defendants claim. It seems clear to us, therefore, that the witness, who was one of the defendants, was not competent to testify as to anything which occurred before tire death of Jacob Weaver, through whom the plaintiff claimed his interest in the property. He did not bring himself within the exception named in the clause referred to, by disclaiming title and offering to pay his share of the costs up to the time at which he was offered as a witness. Independently of this, however, we cannot see that the offer which was rejected, or any of the testimony which had been received and was stricken out, could affect the general question involved. Whether, therefore, it be held that the witness was incompetent, or that the testimony offered and what was stricken out was incompetent and irrelevant, the effect is practically the same.
- We have not discussed the various assignments of error seriatim, nor do we think it necessary in this case to do so. The defendants received much more liberal treatment in the admission of testimony and in the answers to points than might, in strictness, have been accorded them. It is -not necessary to refer to particular instances, inasmuch as the plaintiff, who received a verdict, is not in a situation to complain.
[435]*435We have sufficiently indicated the grounds upon which we think the judgment should be sustained, and no good purpose will be subserved by further discussion of the case. The principles which underlie it have been so long and so well settled that it is unnecessary to cite particular cases in support of them.
Judgment affirmed.