author: Mr. Justice Woodward Agnew, C. J.

text:
    Huber’s Appeal. Gaul’s Estate.
    1. A testator directed that his real and all his residuary personal estate should he in the care of his executors during his wife’s life; from the income to pay his wife an annuity, the remainder of the income to be divided into eighths, one to each of four sons absolutely, one to bo paid to each of three daughters; one to his son Jacob, or “ at the option” of the executors to apply it to his support, as they might see fit, so that it should not be liable “ to his disposal, order, debts, control or engagements, and in case of his decease” to apply the same for the support of his child or children. Upon the death of the testator’s wife, he gave an eighth absolutely to each of the four sons; one eighth to the separate use of each of the daughters ; one eighth to Jacob for life, and after his decease “ to all his children living, and the issue of such of them as may be then dead, their heirs and assigns for ever in equal parts, such issue taking and among themselves dividing such share only as their deceased parent would have taken” provided that Jacob’s share should remain in the care of the executors “ as his trustees,” the income during his life “ to be paid to him or applied by them at their option for his support, &c., so that the same shall not be liable to his disposal or subject to the payment of his debts.” There was no further direction as to Jacob’s share. Held, (1.) That Jacob took but a life interest. (2.) That the accumulation of the income of the fund for Jacob which had not been applied for him remaining in the hands of the trustees did not pass to his administrator.
    2. In ascertaining the intention of the testator, “ children” primarily is a word of purchase.
    3. The construction of testamentary words must always depend in some measure on the special facts.
    4. AVhere a clause in a will is obscure or ambiguous, words which manifest an intention to dispose of the whole of testator’s estate, are to be construed as passing a fee.
    5. It is of weight in construing a devise in remainder to be a fee that there is no limitation over.
    6. AVhere the meaning is clear from unmistakable language, the will interprets itself, and subsidiary facts are not to be introduced in order to create a doubt.
    7. The extent and character of a devise depends on the qualities stamped and powers conferred on it by the testator, not alone in the parties in whom the title is formally vested.
    8. Ashhurst’s Appeal, 27 P. F. Smith 464; Dodson v. Ball, 10 P. F. Smith 492; Earp’s Appeal, 25 P. F. Smith 119; Horwitz v. Norris, 13 Wright 213, followed. ITaldeman v. Haldeman, 4 Wright 29; Yarnall’s Appeal, 20 P. F. Smith 335, distinguished.
    January 14th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Orphans’ Court of Philadelphia: Of January Term 1874, No. 174. In the estate of Jacob Gaul, deceased.
    The question in this case arose under the will of Frederick Gaul, Sr., who died on the 30th of June 1831, owning a large real and personal estate. His will was dated August 1st 1825. He appointed his wife Clarissa, and his sons Frederick Gaul and William Gaul the executors of his will.
    He gave to his wife all his household and kitchen furniture and things provided for family use.
    The will then proceeded :—

      “ I do hereby direct that all my real and residuary personal estate shall be in the care and management of my said executors and the survivors and survivor of them for and during all the term of the natural life of my said wife, the real estate to be let, &c., for the best yearly rent, &c., and the said residuary personal estate to be placed out and continued at'interest on good security or to be invested in some of the public stocks or securities producing an interest or dividends, * * * and to receive the rents, &c., and from and out of the said rents, &c., so to be received that they do and shall in the first place pay, &c., so much thereof as may be necessary for keeping and supporting my real estate in good and complete tenantable order and repair, and paying the taxes and ground-rent to become due for the same and for defraying all reasonable costs and expenses attending the execution of their trust and a reasonable allowance to my said executors for their care and trouble in the premises. And in the second place out of the said rents, &c., I give and hereby authorize my said wife to retain for her use the sum of $2000 yearly and every year from the day of my decease for and during all the term of her natural life in quarterly portions. And all the rest and residue of the said rents, &c., I give and direct the same to be paid in equal eighth parts in half yearly payments for and during all the term of the natural life of my said wife, in manner following, viz.; one eighth part thereof to my said son Frederick, his executors, administrators and assigns; another eighth part thereof to my son Martin, his executors, &c., another eighth part thereof to my said son William, his executors, &c., another eighth part thereof to my son Joseph, his executors, &c., another eighth part thereof I direct to be paid to my son Jacob,' or at the option of my said executors, I authorize them to appropriate and apply the same for the support and maintenance of my said son Jacob as they may See fit and proper, and so that the same or any part thereof shall not be liable or subject to his disposal, order, debts, control or engagements, and in case of his decease then to appropriate and apply the same for the support, maintenance and education of his child or children ; and the remaining three eighth parts thereof shall be considered to be in the custody and care of my executors as trustees for my daughters respectively, one of the said eighth parts to he paid to my daughter Mary, into her own hands, for her sole and separate use, without being in any wise subject or liable to the debts, control or interference of any husband, * * * and upon her decease then to apply the same for the support, maintenance and education of her child or children; one other of the said eighth parts to he paid to my daughter Catharine, into her own hands, for her sole and separate use, in the same and like manner as I have hereinbefore directed with respect to my said daughter Mary, * * * and upon her decease then to apply the same for the support, maintenance and education of the child or children of my said daughter Catharine; and the other eighth part to be paid to my daughter Elizabeth in her own hands for her sole and separate use in the same manner as I have herein-before directed with respect to my said daughter Mary, * * * and upon her decease then to apply the same for the supportand maintenance and education of her child or children. And from and immediately after the decease of my said wife, I give, devise and bequeath all my real estate and residuary part of my personal estate in manner following, that is to say; one full equal eighth part thereof to my said son Frederick, his heirs, &c., another eighth part thereof to my said son Martin, his heirs, &c., another eighth part thereof to my said son William, his heirs, &c., another eighth part thereof to my said son Joseph, his heirs, &c., another eighth part thereof to my said daughter Mary, for and during all the term of her natural life, and after her decease to all her children then living, and the issue of such of them as may be then dead, their heirs and assigns for ever, in equal parts, such issue taking and among themselves equally dividing such part and share only as their deceased parents would have taken if living; another eighth part thereof to my said son Jacob for and during all the term of his natural life, and after his decease then to all his children then living, and the issue of such of them as may he then dead, their heirs and assigns for ever in equal parts, such issue taking and among themselves equally dividing such part and share only as their deceased parent would have taken if living; another eighth part thereof to my said daughter Catharine for and during all the term of her natural life, &c. (as in Mai-y’s and Jacob’s devise); and the remaining eighth part thereof to my said daughter Elizabeth for and during all the term of her natural life, &c. (as in Jacob’s and Mary’s devise). Provided always and it is my mind and will that the parts and portions of my estate hereinbefore devised to and for the benefit of my said daughters respectively, shall he and remain in the care and management of my said executors and the survivor of them for and during the term of their natural lives respectively to receive the rents, &c., * * * pay over the same to my said daughters respectively to whom the same may belong into their own hands for their sole and separate use. * * * And provided also, and it is my mind and will that the part and share Iof my estate hereinbefore devised for the benefit of my said son Jacob shall be and remain in the care and management of my said executors as his trustees, the interest and income of which for and during all the term of his natural life, I direct to be paid to | him or to be applied by them at their option for his support and | . maintenance so that the same shall not be liable to his disposal or | subject to the payment of his debts.” * * *
    ■ On the 6th of May 1871, James S. Huber, administrator, &c., of Jacob Gaul, deceased, presented a petition setting out the provisions of the will of Frederick Gaul relating to Jacob Gaul; the petition further set out that Frederick Gaul left seven children, viz., Jacob, Frederick, Martin, Mary, Catharine and Elizabeth, Joseph having died in his father’s lifetime; that Jacob died on the 9th of March 1871, intestate, unmarried and without issue; that Clarissa Gaul, the widow of the testator, had been dead many years; that Frederick Gaul and William Gaul undertook the trust; that William lately died, leaving a will, of which Sarah Gaul, Simon Delbert and George H. Oberteuffer were the surviving executors; that Frederick Gaul, Jr., had lately died leaving a will, of which Mary Ann Gaul was the executor, and that no account of the trust estate of Jacob Gaul had ever been settled. The prayer was for a citation to the executors, &c., of William Gaul and the executors, &c., of Frederick Gaul, Jr., to settle an account of Frederick Gaul, Jr., and William Gaul, trustees, under the will of Frederick Gaul, Sr., of Jacob Gaul, deceased.
    The executors of William Gaul answered, averring matters of-fact; the answer contained also a demurrer as follows:—
    “ Defendants demur to the same, and to the right of said Iluber, as administrator of Jacob Gaul, to ask any account of them, inasmuch as the said Jacob Gaul left no estate to be administered to, the whole 'of his estate under the will and the intestate law, and all accretions thereof, being the fruit of the tree from which they sprung, follow and belong to the tree, and Jacob therefore left nothing to be administered to.”
    The Orphans’ Court dismissed the petition, Allison, P. J., who delivered the opinion, saying:— * * *
    “ The respondents set up that Huber, as administrator of Jacob, had no interest, and upon this ground they demur to the petition. Huber has no standing if Jacob Gaul took only a life estate under the will of his father. Our judgment upon this point is, that Jacob’s interest was that of a tenant for life only, and that he did not take a fee or a fee tail, as petitioners contend. The estates to the daughters and to Jacob were but life estates, with contingent remainders to their children living at their death, or the issue of deceased children. Until the happening of the contingency, and vesting of the remainders, the fee descended to the children of Frederick Gaul, Sr., as his heirs at law, The case of Haldeman v. Haldeman, 4 Wright 29, seems to rule this question. * * * This conclusion is, we think, also sustained by Guthrie’s Appeal, 1 Wright 14; Chew’s Appeal, Id. 23; Walker v. Milliken, 9 Id. 178; Fetrow’s Estate, 8 P. F. Smith 424; Buzby’s Appeal, 11 Id. 111. Yarnall’s Appeal, 20 Id. 335, is not, we think, against this conclusion. There the trust was to pay income for life to daughters, with power of appointment given to the daughters by will, and in default of such appointment, to such persons as would take the estate had they died intestate seised thereof in fee. Nor is Ogden’s Appeal, 20 P. F. Smith 504, an authority for the position assumed by the petitioners. The court held, that the language of the will and the intent of the testator carried the fee to the first taker.
    “ Nor can an account of accretions of unpaid income be demanded. The income was not, in any way, at Jacob’s disposal. The trustees were to appropriate income for Jacob’s support, or were authorized to pay income to him: Horwitz v. Norris, 13 Wright 213, is strongly in point; there the direction was to pay over net income for maintenance for life. This was held not to create a legal or equitable estate for life in the lands; the tenant could not sell or dispose of his interest as life tenant, nor could he dispose of the same by will. See also Shankland’s Appeal, 11 Wright 113.”
    Huber appealed to the Supreme Court, and in several specifications, assigned the decree of dismissal for error.

      B. L. Ashhurst and Chapman Biddle (with whom was W- S. Pried), for appellants.
    The estate as to which an account is asked, is that which was devised by Frederick Gaul’s will for the benefit of Jacob ; the accretions and accumulations in the hands of the trustees, Jacob not having received the income of the fund, and the portion of Frederick Gaul’s estate of which he died intestate. The whole will shows that the testator intended to pass his whole estate; the gifts to the other children being fees, the presumption is Jacob’s was the same; and if not, still it was a fee under the rule in Shelley’s Case, Jacob taking a life estate with contingent remainder to his children; if none, then to him and his right heirs under the intestate laws. This being part of the residue it cannot as an undevised or lapsing part fall into the residue: Hawkins on Wills 42; Redfield, ch. 8, sect. 8; Hamble v. Shore, 7 Hare 247; Sykes v. Sykes, 4 Eq. Cas. 200. The limitation to Jacob passed a fee: Yarnall’s Appeal, 20 P. F. Smith 335; McKee v. McKinley, 9 Casey 92; Haldeman v. Haldeman, 4 Wright 29. There being no devise over, the word “ children” is used to indicate the whole line of succession: Wild’s Case, 6 Reports 17; Hawkins on Wills 198; Potts’s Appeal, 6 Casey 170; Price v. Taylor, 4 Id. 95; Dodson v. Ball, 10 P. F. Smith 493; Williams v. Leech, 4 Casey 90. The interposition of a trustee will not prevent the beneficiary from taking an absolute estate : Keyser’s Appeal, 7 P. F. Smith 236; Physick’s Appeal, 14 Wright 135. Where the general intention is clear and effect cannot be given to alhthe language expressing some particular interest,- this must yield to the general intent: Redfield on Wills 432; Doebler’s Appeal, 14 P. F. Smith 15; Leech v. Robinson, 24 Id. 273; Ogden’s Appeal, 20 Id. 508. The inclination of courts is so to construe a residuary bequest as to prevent an intestacy: Bayard v. Atkins, 10 Barr 18 ; Patterson v. Swallow, 8 Wright 490; Roberts’s Appeal, 9 P. F. Smith 71; Geyer v. Wentzel, 18 Id. 86. As to the accretions and accumulations: If the whole income of property be given and a special purpose assigned for the gift, it is regarded as absolute, and the purpose merely the motive, and . the gift tabes effect as to the whole income : Sanderson’s Trust, 3 Kay & Johns. 497; Beever v. Partridge, 11 Simon 231; Barber v. Barber, 3 Myl. & Cr. 690; Hanson v. Graham, 6 Ves. 239.

      O. J. Paneoast and G-. W. Biddle (with whom was W. W. Juvenal), for appellees.
    Jacob took but a life estate; “ children” here is a word of purchase: Walker v. Milligan, 9 Wright 178; Cote v. Von Bonnhorst, 5 Id. 250; Fetrow’s Estate, 8 P. F. Smith 424; Busby’s Appeal, 11 Id. 111; Wickersham v. Savage, 8 Id. 370. To hold that Jacob took afee by implication is contrary to the expressed gift of the testator; all devises by implication are decided on the principle of carrying into effect the supposed intention of the testator; Rathbone v. Dychman, 9 Paige 27. The trust for Jacob was an active one : Earp’s Appeal, 25 P. F. Smith 123; consequently the legal estate for life was in the trustees and could not therefore coalesce with a subsequent equitable estate. As to the accretions, they cited Horwitz v. Norris, 13 Wright 213; Dillin v. Wright, 23 P. F. Smith 178; Vaux v. Parke, 7 W. & S. 19; Perry on Trusts, sect. 388.
    May 8th 1876.
   Mr. Justice Woodward

delivered the opinion of the court,

Frederick Gaul, Sr., died in the year 1831, leaving seven children. Before that time, and after the 1st of August 1825, the date of the execution of his will, his son Joseph had died. Having bequeathed his furniture and plate to his wife, the testator committed his residuary real and personal estate to the care and management of his executors. They were authorized to receive the annual income, and out of it were directed to pay $2000 a year to his wife, and to pay the residue semi-annually in equal parts to his eight, children. The provision in favor of his son Jacob was in these words: “ Another eighth part I direct to be paid to my son Jacob, or, at the option of my said executors, I authorize them to appropriate and apply the same for the support and maintenance of my said son Jacob, as they may see fit and proper, and so that the same, or any part thereof, shall not be liable to his disposal, orders, debts, control or engagements ; and in case of his decease, then to appropriate and apply the same for the support, maintenance and education of his child or children.” Upon the death of the widow, a distribution in equal eight parts was directed. One of these parts was given to Jacob “for and during all the term of his natural life, and after his decease, then. to all his children then living, and the issue of such of them as may be then dead, their heirs and assigns for ever, in equal parts ; such issue taking, and among themselves equally dividing, such part and share only as their deceased parents would have taken if living.” In the concluding paragraph of the will the testator declared: “ It is my mind and will that the part and share of my estate hereinbefore devised for the benefit of my said son Jacob, shall be and remain in the care and management of my said executors as his trustees, the interest and income of which, for and during the term of his natural life, I direct to be paid to him, or to be applied by them, at their option, for- his support and maintenance, so that the same shall not be liable to his disposal or subject to the payment of his debts.” Letters testamentary were granted to Frederick Gaul, Jr., and William Gaul, two of the executors appointed by the will.

After the death of Jacob Gaul, on the 9th of March 1811, letters of administration on his estate were issued to James S. Huber, the appellant, by whom the present proceeding was instituted to enforce a settlement of the accounts of the executors as trustees of the estate devised for the benefit of Jacob by his father. Both the trustees were dead, and their executors were made parties to the proceeding. After hearing, the petition was dismissed by the Orphans’ Court.

In this appeal the questions presented and argued have relation to the right of the appellant to an account, first, of the principal of Jacob’s share; secondly, of the accumulated income received during Jacob’s lifetime, and not paid to him, nor appropriated for his support; and thirdly, of the interest of Jacob in the share of his brother-Joseph, which had lapsed; and in property acquired by Frederick Gaul, Sr., after the date of his will, as to which he died intestate. Upon the first question, it is claimed by the appellant’s counsel, that the terms of the devise require the application of the rule in Shelley’s case, and that a gift for life having been made to Jacob, the provision that the share should go, “ after his decease, to all his children then living, and the issue of such of them as may be then dead, their heirs and assigns for ever,” defined an entire line of succession, limited an inheritance to the children as the heirs of Jacob, and created in him, therefore, an estate in fee, or at least in tail. Haldeman v. Haldeman, 4 Wright 29, and Yarnall’s Appeal, 20 P. F. Smith 335, were especially pressed as authorities for this position. In the first of these cases, a testator by will directed his executors to account for and pay over half-yearly to his three daughters, “ and to each of them during their natural lives, the income and profit arising out of each of their shares of the residue, and after the death of either, then to descend and go to the child, and if children, share and share alike. Should, however, either of my daughters die, and leave no lawful issue, then such share or portion is to fall back again to the residue, and form a part of the same.” It was held that each daughter took an estate tail in the residue of the testator’s estate, which, under the Act of the 27th of May 1855, became an estate in fee simple. In Yarnall’s Appeal, the testatrix gave the residue of the estate in trust for the use of all her children living at her death, and the issue of such as might be then dead, in equal parts. The trustee was to hold the shares of the daughters, and to pay the income during their lives, “ free from the debts of any husband they may have or take; and after their death, to pay the daughters’ shares according to their will.' In default of wills, the daughters’ shares to be paid to such person or persons as would be entitled to the same in case they had survived their respective husbands, and departed this life seised thereof in fee.” It was decided that the daughters took absolute estates in fee simple. On the other hand, it is insisted that nothing in those eases is essentially in conflict with Guthrie’s Appeal, 1 Wright 9 ; which decided that although the rules of construction permit the words “heirs of the body,” or “issue,” to be used in the limited sense of “ children,” and the word “ children,” which primarily indicates not heritable succession, but individual acquisition, to be used in the more comprehensive sense of the words “heirs of the body,” in cases in which a clear explanation will justify a departure from their ordinary meaning, yet there- must be an express warrant for this change, under the hand of the author of the gift, and conjecture, doubt or even equilibrium of apparent intention, will not suffice. The testator there devised a tract of land to his daughter for life, and provided for its disposition at her decease, as follows: “ The said lot or tract of land I hereby bequeath to such of her children, or their heirs, as may survive her, as tenants-in-common. The child or children of any deceased child of hers shall hold the same interest and right that the deceased parent would have held if living.” The daughter’s estate was held to be for life, and not a tenancy in tail.

It is no part of the purpose now in view to examine the long line of authorities bearing upon this perplexed and intricate branch of the law of Pennsylvania. The currents of decision, cross, counter and direct, have been traced in a case so recent as Dodson v. Ball, 10 P. F. Smith 492, from Lancaster v. Dolan, 1 Rawle 231, down to Rife v. Geyer, 9 P. F. Smith 393. One element in the long conflict is for the present at rest. Earp’s Appeal, 25 P. F. Smith 119; Ashhurst’s Appeal, 27 Id. 464, and Ash’s Appeal, 2 Weekly Notes 360, have settled principles beyond controversy to prove that this will created an active and operative trust. “ The decisions in all the cases,” it was said by the present Chief Justice in Dodson v. Ball, “ show the undoubted tendency of the judicial mind in this state to follow the true intention of the donor, and whenever he means to limit an estate to the heirs of the life tenant, no matter how his intent is expressed, an estate of inheritance will vest in the tenant for life; but when he intends his bounty to vest in certain persons, though they may be the same as the heirs at law, the life estate will not be enlarged.” And in Yarnall’s Appeal, in which the opinion was delivered by the same judge, it was said that where the testator intends the estate to go to the whole body of persons constituting in law the entire lineal descent, he means “ issue,” or “ heirs of the bodyand where he intends it to go to the whole line of descent, lineal and collateral, he means “heirs;” that technical phrases in wills, as well as forms of expression decided in other cases, are not permitted to overthrow the intent of the testator, when that intent is clearly ascertained to be different in the will under examination by the court; that the rule in Shelley’s case is not in reality an exception to the rule that the intention of the testator must guide in interpreting a will, but only sacrifices a particular to a general intent; and that it is only when a will has been interpreted by the ordinary principles of construction that the rule is to be applied, and is not itself the medium for discovering the intention of the testator. In ascertaining that intention, however, one of the ordinary and most familiar principles of construction is, that the word “ children ” is primarily a word of purchase. Do the other terms of the will of Frederick Gaul, Sr., prove that he used it as a word of limitation ? It is to be observed that he employed no other word in describing his son Jacob’s immediate descendants. The devise was to “ all his children then living, and the issue of such of them as may be then dead.” If Jacob had had children, none of whom had died, nothing in the testator’s mode of referring to them would have’indicated that he intended to do more than designate the individuals to whom he designed, after his son’s death, to transmit the estate. The word “ issue ” was employed in a superadded clause of distribution. It is not like the case of Haldeman v. Haldeman, where the provision in favor of the children of the testator’s daughters was followed by a disposition of the estate if the daughters “should die and leave no lawful issue.” Nor is it like Yarnall’s Appeal, where the tenants for life were authorized to devise their shares, and “ in default of wills,” the shares were to be paid to “such person or persons as would be entitled to the same if they had departed this life seised thereof in fee.” Even if a life estate could be said to have been vested in Jacob, the terms of the will were not adequate to enlarge it to a fee simple or fee tail.

The decision of every case involving the construction of testamentary words must depend in some measure on its special facts. In the present case, Jacob Gaul was not clothed with dominion over the interest devised to him, even during his own life. While one-eighth of the testator’s residuary estate was given to him in the clause directing distribution upon the death of the widow, the concluding paragraph of the will declared that his share should remain in the hands of the executors as his trustees; that it should be at their option whether the income derived from it should be paid to him, or be applied by them to his support; and that “ the same” (the income) should “ not be liable to his disposal or subject to the payment of his debts.” The legal title was vested in the trustees, as the. effect of these provisions, and his control even over the income was withheld. This was not such a gift of “ an estate of freehold” to Jacob, as, under the rule in Shelley’s case, or under any principle in analogy to that rule, would support a limitation to his heirs. The actual gift of the estate, as such, was to the trustees, and not to Jacob Gaul. In Physick’s Estate, 14 Wright 128, relied on by the appellant’s counsel, the devise was to Emlen Physick, subject to the same trusts and limitations as had been appointed for the testator’s nieces, each of whom was to receive the income of one-third of the testator’s estate from the trustees in whom the legal, title was vested, without being subject to the contracts, debts, control or interference of their husbands. This provision could not have been held to be imported into the devise in favor of Emlen Physick, for the effect would have been to annul the gift. The question, however, was not raised. All that was decided in Keyser’s Appeal, 7 P. F. Smith 236, was, that a devise in fee with a condition that it should not be liable for the debts of the devisee vested the estate free of the condition, which was held to be as repugnant to the estate devised as a provision in restraint of alienation. It is not necessary to express an opinion as to the effect upon the estate of a devisee for life, of a simple provision that it should not be subject to his debts. It might be absolute, nevertheless. But here there is more than that. The income was withdrawn from the “ disposal” of Jacob. Whether any of it should reach his hands depended on the exercise of the discretion of the trustees. If the devise to the children and their issue had been in undoubted words of limitation, the rule in Shelley’s case would not apply. An estate, such as gives room for the application of the rule, may be either legal or equitable, but to entitle him to take by limitation an estate of freehold must be vested in the tenant for life. Here, one interest was given to the ancestor, and an entirely different interest was devised to the children. The estate was vested in the trustees to support the | contingent remainder, charged with the burden, during his lifetime, 1 of the support of Jacob Gaul. ’

There is no doubt of the rule that where a clause in a will is obscure or ambiguous, words which manifest an intention on the part of the testator to dispose of his whole estate, are to be treated as favoring the construction, that he meant to pass a fee : Geyer v. Wentzel, 18 P. F. Smith 84. So, where a will contains no limitation over after a devise in remainder, that fact is to be weighed in support of the same construction in ascertaining the testator’s intention: Grove’s Estate, 8 P. F. Smith 432; Ogden’s Appeal, 20 Id. 504. But, when the meaning is clear from language that is unmistakable, the instrument interprets itself, and subsidiary facts are not to be introduced in order to create a doubt. This case is not one to require a resort to any merely illustrative elements of investigation.

In the second place, the accumulation of the income in the hands of the trustee during the lifetime of Jacob Gaul, are claimed by the appellant. It is contended that the moneys unexpended for his support and maintenance were his property, irrespective of the nature of the estate devised to him ; that they could not have passed as trust funds to his children, if he had left children, and that they do not go to the heirs of the testator for want of children, but to the administrator. This question is regarded as having been definitely determined by the case of Horwitz v. Norris, 13 Wright 213. Joseph Parker Norris had given one-sixth part of his Eairhill estate to trustees, with power to demise the premises and collect the rents, and with direction, after paying certain taxes and other charges, to apply the money they should receive to and for the maintenance, support and benefit of his son, Joseph Parker Norris, second, for and during the term of his natural life, in such way and manner, however, that the same or any part thereof, should not become subject or liable to the payment of any of his debts, present and future, and so that no creditor should ever be able to take, seize or enjoy the same or any part thereof.” Upon the death of his son, his children were to take the estate devised to him, in such proportions as he should appoint by will. In the exercise of this power, the son (Joseph Parker Norris, second), devised the estate, including rents accrued but not paid to the trustees at the time of his death, to trustees for the benefit of his wife for life as to one-third, and for the benefit of his children as to the residue. In deciding the case, Judge Strons said,, in speaking of the original will, “ this was not the creation of a legal or even of an equitable estate in the land. It was not a devise of renes and profits generally to the son, and therefore, in effect, a gift of the land. The income was committed to trustees, to be applied to his maintenance, support and benefit, and they were to exclude his creditors. He owned what he could dispose of by will as owner. And as he had not power apart from ownership over the income, it is impossible to see how that not received, whether due and payable, or only accruing at his death, can go either to his executors or the trustees appointed by him in his attempt to execute the power.” In Keyser v. Mitchell, 17 P. F. Smith 473, trustees were authorized to collect income and pay it, or such part of it as they should think proper, into the hands of the testator’s son Charles, or disburse it in such way as they should deem best for his comfortable support and maintenance. There was no provision protecting the income from the claims of the son’s creditors. It was held that it was payable at the discretion of the trustees ; that until the discretion was exercised the son had nothing: and that the money was not liable to attachment under a judgment against the son. The extent and character of a devisee’s estate depend on the qualities stamped on it, and the powers conferred over it by the testator, and not alone in the parties in whom the title is formally vested. There is no difference as to the question here between a legal and an equitable estate. If both had been clothed with unlimited dominion over the income, the essential title, that is, the beneficial ownership of Joseph Parker Norris, second, in Horwitz v. Norris, and that of Jacob Gaul, under this will, would have been identical. Here, the trustees, in providing for Jacob’s support, were to exercise their discretion. Only when they should pay it to him was he to have title to the income. He could not have assigned it or transmitted it by will. The administrator could receive it only on the theory that Jacob owned it. On that theory it would unquestionably be liable to the claims of his creditors, and the purpose of the testator vrould be wholly overthrown.

The remaining question relates to the part of the estate as to which the testator died intestate. The prayer of the petition to the Orphans’ Court was for a citation against the executrix of Frederick Gaul, Jr., and the executors of William Gaul, requiring them to “ file and settle the account of Frederick and William Gaul, trustees.” That prayer presented the specific subject of controversy. The trusts created by the will could have no connection with the intestate property. Under the pleadings, no question in relation to that property can now 'be reached.

Decree affirmed and appeal dismissed at appellants’ cost.

Agnew, C. J.

I shall not dissent, but I doubt as to the income accumulated in the lifetime of Jacob Gaul. The question is one of ownership, which the will itself decides by the gift of the corpus directly to him for life, which distinguishes this case from those cited ; while the control over the income by the trustees was merely to prevent its diversion, either by Jacob or his creditors, in his lifetime. At his death his ownership carried it into his estate for distribution.


source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    Boud versus Bronson.
    1. A wheelwright indebted to plaintiff and his father, agreed to make a wagon for plaintiff; there was evidence that the wheelwright delivered the running-gears to plaintiff, who afterwards bought the bed from him: the plaintiff retained these several months, bought other materials, contracted with the wheelwright to complete it for a certain sum for the whole cost, and took all the materials to his shop, plaintiff to pay the wheelwright’s debt to the father; he afterwards settled with the wheelwright, when there was less due than the father’s debt which plaintiff paid; the wagon remaining at the shop was levied on for the wheelwright’s debt. In replevin against the purchaser, Held, that this evidence did not show legal fraud.
    2. The evidence showed such long-continued and exclusive possession in the plaintiff as could be affected only by actual fraud.
    3. Plaintiff having retained the property so long, the fact that under a new contract the wagon was placed with the wheelwright to be finished was not fraud on his creditors.
    4. Dunlap v. Bournonville, 2 Casey 72; McMarlin v. English, 24 P. F. Smith 296, referred to.
    January 17th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Cordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Montgomery county : Of July Term 1875, No. 46.
    This was an action of replevin brought March 13th 1871, by William H. Boud against Henry Bronson, for a light wagon ; the defendant gave a claim-property bond, and retained the goods ; he pleaded property in himself.
    The case was tried March 3d 1874, before Ross, P. J.
    The plaintiff testified, that a wagon belonging to him had been sold on the 11th of March 1871, at constable’s sale, as the property of John Roudenbush ; that he gave notice at the sale in the presence of defendant, that the wagon was plaintiff’s ; defendant heard him ; defendant bought and took possession of the wagon ; the wagon had been taken from the shop of Roudenbush, who was a wheelwright, to be sold; plaintiff had taken it from his father’s house to Roudenbush’s to have it done up. Roudenbush then lived in Montgomery county; he was indebted to the father, and plaintiff made arrangements with Roudenbush at the time to pay by his father’s account, for doing up the wagon.
    On cross-examination plaintiff said : He did not buy the wagon of Roudenbush ; he had agreed with Roudenbush in 1869 to build him a wagon; it was not this wagon; this wagon was built on two contracts. In the first place Roudenbush was to build him a certain kind of wagon which he could not build ; plaintiff took what part he had built and made arrangements afterwards for the balance ; he took the running-gears at $30, he bought thé wagon-bed afterwards on his father’s account, and paid $25 for that; the trimming and painting were to cost a certain sum; plaintiff was to buy the trimming and the whole wagon was to cost $186; it was to be finished in the beginning of 1870 ; it was never finished; there had been a final settlement about the wagon about February 20th 1871; beside a debt owing by Roudenbush to plaintiff, there were due after paying blacksmith and trimming materials about $71; this did not include his father’s bill, which was put at $60 ; the bill had nothing to do with the wagon, except how Roudenbush had agreed it should be credited on the wagon ; he did not know that his father’s account had ever been closed by payment; it was not taken into account when the wagon was sold; plaintiff then owed on it $70.81; plaintiff paid for iron works and trimmings.
    On re-examination he said: Roudenbush owed him for shoe-making $28.29 ; he had paid for iron work and trimmings $79. Roudenbush was about moving into Chester county near the Valley Forge, and delivered to plaintiff the running-gears; he bought the bed afterwards; then they arranged that the wagon should cost $186 “ all toldhis father’s bill $81 was to go against- the balance ; this was about the beginning of October 1870 ; he had had the running-gears and wood work in the February preceding; after it was done he took it to his father’s; he paid his father’s, bill.
    The blacksmith testified that plaintiff paid him $61 for ironing the wagon.
    James Boud, father of plaintiff, testified: that Roudenbush was to make a wagon body for plaintiff, but could not make it as plaintiff wanted it; and wanted witness to take the body for his claim; witness said he would have to consult plaintiff; witness did not see Roudenbush until they settled February 20th 1871, when Roudenbush said he would let part of the claim go; could not let it all go; witness said he would not do that; witness had no further talk with him; plaintiff told him to finish the wagon and they would settle.
    On cross-examination he said: Roudenbush offered to take part of his bill off of the wagon; he told witness his bill was to be paid by the wagon before the new arrangement; before the body was bought; the running-gears had been bought before. Roudenbush declined to take the whole bill; the wagon was not done.
    The plaintiff offered in evidence the record of an attachment-execution, “ James Boud v. William H. Boud, garnishee of John Roudenbush, and all proceedings showing attachment to have been issued before the sale of this wagon.”
    He also offered to show that “ defendant after he bought the wagon, when the sheriff attempted to replevy it, ran it into Chester county, and it was only produced after he was arrested on a charge of eloigning the goods.”
    The offers were severally objected to by the defendant, rejected by the court and bills of exceptions sealed.
    The plaintiff closed and the court directed a nonsuit to be entered against him. The plaintiff moved to take it off; the court afterwards refused the motion.
    The plaintiff took a writ of error ; he assigned for error:—
    1, 2. Rejecting his offers of evidence.
    3-5. Directing judgment of nonsuit and refusing to take it off.
    6r. TV. Oorson, for plaintiff in error.
    This wagon bad been delivered to plaintiff and was afterwards committed to Roudenbush to finish; he was but a bailee and his acts could not affect plaintiff’s title : 1 Bl. Com. Ch. 14, p. 427; Becker v. Smith, 9 P. F. Smith 469. As to nonsuit, Lehman v. Kellerman, 15 Id. 489.

      O. Hunsicker (with whom was H. B. Dickinson), for defendant in error,
    cited Prichett v. Jones, 4 Rawle 260; Eagle v. Eichelberger, 6 Watts 31.
    March 13th 1876.
   Mr. Justice Mercur

delivered the opinion of the court,

In this case the court below ordered a nonsuit. The question now arising is, should the evidence have been submitted to the jury ? The defendant contends that the evidence shows the transaction was substantially an agreement by which Roudenbush, a wheelwright, was to make and deliver to the plaintiff, at a price stipulated, the wagon in question, but when the defendant purchased it at constable’s sale as the property of Roudenbush, it was unfinished, and the plaintiff had neither paid for it nor obtained possession of it. If these were the facts, and Roudenbush had furnished the materials, it is very clear the court committed no error in ordering the nonsuit.

We think, however, that this is not the only view presented by the evidence. The testimony -is not very clearly stated in the paper-books, but as we understand it, there is some evidence going to establish this state of facts, to wit: “ In 1869 Roudenbush resided in Montgomery county. He was indebted to the plaintiff, and also to the plaintiff’s father. An agreement was entered into between the plaintiff and Roudenbush, by which the latter was to make the wagon. Before it was finished Roudenbush moved to Chester county. On leaving, he delivered the running-gears to the plaintiff. Not long after the plaintiff also bought from him the bed of the wagon. After the plaintiff had retained all these parts of the wagon in his possession for several months, and procured other materials, he made a new contract with Roudenbush for its completion, at a stipulated price for the whole cost of the wagon. He thereupon took to the shop of Roudenbush, near Valley Eorge, the running-gears, body, iron work and materials for trimming and cover. As a part of the consideration the plaintiff was to pay the debt which his father had against Roudenbush. The plaintiff further testified that about the 20th February 1871, he settled with Roudenbush for the wagon, and that there was due on account of it a less sum than the debt due to his father, and that he subsequently paid the residue to his father, but had not taken the wagon from the shop when it was levied on.

If the jury should find this alleged statement of facts to be true, we think it takes the question of legal fraud out of the case.

There had been such an exclusive and long-continued possession of the property in the plaintiff, that his title could only be affected by actual fraud. There had been an open, visible change of the possession of the property. When Roudenbush moved out of the county, the plaintiff had accepted it. After retaining it in his exclusive possession for some six months, the fact that, under a new contract, the plaintiff placed the unfinished wagon in the possession of the former owner to be finished, is no fraud in law on the creditors of Roudenbush. The jury should be permitted to pass on the good faith of the whole transaction under proper instructions from the court: Dunlap v. Bournonville, 2 Casey 72; McMarlan v. English, 24 P. F. Smith 296. The third, fourth and fifth assignments are sustained.

As we are not furnished with a copy of the record referred to in the first assignment, we are not able to say there was error in its rejection.

The evidence covered by the second assignment is irrelevant.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Gordon

text:
    Caley versus Philadelphia and Chester County Railroad Co.
    1. A subscription to the stock of a public corporation prior to the procurement of its charter is absolute and a condition attached is void.
    2. Commissioners to receive subscriptions arenotthe agents of the corporation but of the public, under limited and definite powers which every subscriber is bound to know.
    3. After a corporation is organized it may receive subscriptions for stock on conditions which it is bound to perform.
    4. After organization, one subscribing without condition cannot set up an unlawful act of the directors to avoid his subscription.
    5. Whenever a power which the subscriber cannot control, intervenes to alter a material point in his contract without his assent, it works his release.
    6. A subscription paper set out the termini of a railroad and the route over which it would be constructed. Held, that this was an agreement that the termini and the route should be as stated; and if the company materially changed them, a subscriber would be released.
    7. A railroad company took subscriptions for the road with specified route and termini; they passed a resolution changing them in material points. Held, that this was evidence of abandonment of the route, &c., in the subscription.

      8. In a subscription to railroad stock it was stated that the road was to be commenced “ as soon as sufficient funds shall be subscribed to carry on the work.” In a suit for a subscription; Held, that the assurances of the officers at a public meeting held for procuring subscriptions, at which the defendant subscribed, that the money would not be called for till §150,000 were subscribed, were evidence; that being an inducement on which the subscription was obtained.
    9. Ambiguities in a writing may be explained, varied, added to or contradicted by parol, where it is shown that but for the oral stipulations the writing would not have been executed.
    10. A party seeking to enforce a contract made by his agent is bound by his declarations made at the time, although he has exceeded his authority.
    11. Indiana, &e., Turnpike Oo. v. Phillips, 2 Penna. R. 184; Manheim, &c., Plankroad Oo. v. Arndt, 7 Casey 317, followed.
    January. 17th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Delaware county: Of July Term 1875, No. 7.
    This was an action of assumpsit brought June 4th 1873, by The Philadelphia and Chester County Railroad Company against David P. Caley. The action was to recover an instalment of $5 per share on ten shares of the stock of the plaintiffs.
    By the Act of March 17th 1871 (Pamph. L. of 1872, p. 1269), commissioners were appointed to open books and receive subscriptions for the plaintiffs’ company, by the name of The Philadelphia, Delaware and Chester Central Railroad Company, subject to the provisions of the General Railroad Law of February 19th 1849 ; the capital stock to be $500,000 and to be divided into shares of $50 each, with authority from time to time -to increase the capital so much as the company might think necessary to complete the road. The road was to commence “ at or near Philadelphia” and terminate at some point on the Pennsylvania Railroad, east of Downingtown in Chester county. Letters patent were issued to the compapy on the 13th of October 1871.
    Afterwards the company opened a subscription for stock under which, amongst others, the defendant subscribed for ten shares. • '
    The subscription was as follows:—
    “ We] the undersigned, subscribers for the number of shares in the capital stock of the Philadelphia, Delaware and Chester Central Railroad Company, set opposite our names respectively, and agree to pay for the same as the directors of said company may call for instalments, in accordance with the provisions of the law regulating the collection of instalments on subscriptions to the capital stock of railroads. The route of the proposed railroad to be as folllows: commencing at a point on the Pennsylvania Railroad at or near Iiestonville, thence by the most practicable roate to the valley of Cobb’s creek, * * * then along Fawkes’ and Caley’s runs to Newtown Square; thence, via Sugartown and Goshenville by the most expedient route to be surveyed to West Chester, and from thence to Downingtown, as soon as sufficient funds shall be subscribed to carry on the work.”
    Afterwards by Act of April 9th 1872 (Pamph. L. of 1873, p. 1084), the name of the company was changed to “ The Philadelphia and Chester County Railroad Company.”
    The case was tried February 25th 1875, before Clayton, P. J.
    The plaintiffs gave in evidence the Acts of Assembly, grant of letters patent and the subscription. They also proved the call for instalments, &c.
    Tryon Lewis, the president of the company, testified: that the road had been commenced on September 11th 1872, about three-quarters of a mile east of Newtown Square.
    On cross-examination he said; that they could not say that the route had been permanently fixed east of Darby creek; the route would be subject to improvement; the following resolution was the last act of the board of directors in reference to the location of the road : “ That the eastern terminus of the line be fixed on the West Chester and Philadelphia Railroad at or near Christian street,” &c.; the terminus in the resolution was four or five miles from the terminus at Hestonville, provided for in the subscription, but in the landing in the city, the final terminus would be about one square distant; one being on Market street and the other on Chestnut street. The amount of subscriptions was $84,500; no work had been done on the line outside of that prescribed in the subscription-book; he could not sáy that any terminus had been settled at all. Caley’s subscription was after granting the letters patent.
    The defendant offered to prove as follows:—
    1. That at the time he made his subscription the route of the road was staked out through-his lands, and that as an inducement for him to subscribe, the president or other officers of the company assured him, if he would subscribe, that the road should be built upon that route through his lands.
    2. That he asked the directors of the company, or some of them, what guaranty he would have that the road would be built, to which they replied, that the road would not be undertaken nor his subscription called for, till $150,000 or $160,000 at least, of boná, fide subscriptions to stock had been taken, and that this amount was fixed by them, as being in their judgment sufficient to carry on the work.
    3. That the defendant subscribed upon the express condition and understanding with the officers of the company that the eastern terminus of the road should be made at or near Hestonville; that the termination of the road at this point was the main consideration for the defendant’s subscription, and that he would not have subscribed to a road upon any other route.
    And further, that these representations were made at a public meeting called by the company, at which were present the president, who occupied the chair, the treasurer and one or more directors. ■
    The offer was objected to by the plaintiff, overruled by the court and a bill of exceptions sealed.
    The following are points of defendants :—
    1. The location of the road from a point at or near Hestonville on the Pennsylvania Bailroad to West Chester and Downingtown is a condition precedent in the contract of subscription and the subscription cannot be enforced till this condition has been complied with. If the plaintiffs have not permanently located its proposed road essentially upon the route described, and between the termini named, with a view of constructing it there, they cannot recover in this suit.
    3. If the plaintiffs have located their proposed road with its eastern terminus at or near Christian street, on the West Chester and Philadelphia Bailroad, and have resolved to construct it upon this route, the defendant’s subscription cannot be enforced.
    3. That sufficient funds should be subscribed to carry on the work, is also a condition precedent in the contract of subscription, and unless enough subscriptions have been taken to carry on the work, the subscription of the defendant cannot be enforced.
    4. If the president, directors or other authorized agents of the company agreed with the defendant and other subscribers, that the work should not be undertaken, or their subscriptions called for, till $160,000 in bond, fide subscriptions, had been secured, and this amount has not been subscribed for, the plaintiff cannot recover.
    The court negatived without qualification, the first and third points.
    He affirmed the second point “ with the qualification that the jury must find that the location is a permanent one and that the road is to be built upon that location, but I do not affirm it as an open question.”
    He negatived the fourth point, “ as it contradicts the written agreement.”
    The verdict was for the plaintiffs for $63.
    The defendant took a writ of error ; he assigned for error :—
    4. The rejection of defendant’s offer of evidence.
    6-8. The answers to defendant’s first, second, third and fourth points.

      O. JE. Morris and S. O. Soward (with whom was S. S. Dixon), for plaintiff in error.
    The evidence offered would not contradict the written subscription, although it might vary its operation ; it was therefore admissible: Chalfant v. Williams, 11 Casey 212. It showed a promise which was the inducement to execute the paper: Shugart v. Moore, 28 P. F. Smith 469; Powelton Coal Co. v. McShane, 25 Id. 238. The offer was evidence also to show what was intended by “sufficient funds Woods v. Wallace, 10 Harris 176; Baltimore & Philadelphia Steamboat Co. v. Brown, 4 P. F. Smith 77; Gould v. Lee, 5 Id. 99; Miller v. Henderson, 10 S. & R. 290. It was evidence to show that the consideration was that the eastern terminus should be near Hestonville; the consideration can always be inquired into : Geiger v. Cook, 3 W. & S. 266; Clement v. Reppard, 3 Harris 111; McCullough v. McKee, 4 Id. 289; Plankroad Co. v. Arndt, 7 Casey 317. The promises by officers at a public meeting are evidence: Pittsburg & Conn. Railroad Co. v. Stewart, 5 Wright 54; Nippenose Manufacturing Co. v. Stadon, 18 P. F. Smith 256; Henderson v. Railroad Co, 17 Texas 560. The location according to the route stated in the subscription is a condition precedent: Plankroad Co. v. Arndt, supra; Rhey v. Ebensburg & Susquehanna Railroad Co., 3 Casey 261; 1 Redf. on Railways 184, 210 and notes. The resolution to construct the road five miles from Hestonville relieved the defendant: Mercer Co. v. Coovert, 6 W. & S. 70; Middlesex Corp. v. Locke, 8 Mass; 268; Hartford & N. H. Railroad Co. v. Crosswell, 5 Hill 383.

      W. Ward (with whom was Gf. L. Grawford), for defendants in error.
    The offer rejected was to prove a parol agreement varying a written contract: Hacker v. Nat. Oil Refining Co., 23 P. F. Smith 93; Anspach v. Bast, 2 Id. 356; Craig v. Normal School, 22 Id. 346. Whether there were sufficient funds to carry the work through was for the officers of the company: Angell & Ames on Corp., sect. 146, 531, 532, note a; Brices’s Ultra Vires 152, and note: Custar v. Titusville Gas & W. Co., 13 P. F. Smith 381. The location was not a condition precedent: Miller v. Pittsburg & Conn. Railroad Co., 4 Wright 237.
    January 31st 1876.
   Mr. Justice Gordon

delivered the opinion of the court,

Where one subscribes to the stock of a public corporation prior to the procurement of its charter, such subscription is to be regarded as absolute and unqualified, and any condition attached thereto is void: Bedford Railroad Co. v. Bowser, 12 Wright 29. The reason for this rule is obvious ; the commissioners, who are appointed to receive such subscriptions, are not the accredited agents of the corporation, for it is not yet in being, but are rather the agents of the public, acting under limited and definite powers, which every one is bound to know, and if he be misléd by representations which such agents have no right to make, it is his own folly. Any other rule would lead to the procurement from the Commonwealth of valuable charters without any absolute capital for their support, and thus give rise to a system of speculation and fraud which would be intolerable. When, however, the company is once organized, a different order prevails. Such a company may receive conditional subscriptions for its stock, and, when it does so do, it is bound to the performance of the conditions therein contained: Railroad Co. v. Stewart, 5 Wright 54; Railroad Co. v. Hickman, 4 Casey 318. Doubtless the act of incorporation might alter this rule, and put all stock subscriptions within the same category, and subject them to the same conditions as those made before organization. But the Act of 1849, subject to the provisions of which the plaintiff company was erécted, has in it nothing to indicate that the legislature intended to restrict the powers which corporations ordinarily possess over their own stock. It follows, that the plaintiff might dispose of its stock, as of any other of its property, in such manner as, in its judgment, might best subserve the purposes of its erection, and, to this end, might receive conditional subscriptions for such stock.

Again, after the organization of a company, chartered for some public purpose, as, in this case, for the building of a railroad, if one subscribe, without condition to the stock of such company, be does so in view of the general powers conferred upon it by the legislature, and he is responsible with his fellow corporators for the proper and lawful exercise of those powers, and he cannot, therefore, set up an unlawful act of the directors as an excuse for the non-payment of his subscription ; for it is within his own power to prevent such abuse of authority.

As was said in Graff v. The Railroad Co., 7 Casey 489, the contract of subscription is not only with the company, but, also, with all the other shareholders; hence the subscriber may not set up even the fraud of the directors in order to defeat his contract. But whenever a power intervenes, over which he can have no control, to alter in a material point the character of his contract without his assent, actual or implied, such intervention works his release. As, where, by Act of the General Assembly, a turnpike company was authorized to alter the termini of its road ; in that case it was held that a subscriber to its stock was released from his contract of subscription: Turnpike Co. v. Phillips, 2 Penna. R. 184; Plankroad Co. v. Arndt, 7 Casey 317. The reason for this is, that such termini form part of the conditions wdiich enter into the contract, and as the supreme power, over which the subscriber has no control, intervenes to alter such conditions, he is. thereby released. A contrary doctrine would involve the unreasonable supposition that a contract might be imposed upon a party who never assented thereto.

We now come to the application of these principles to the case in hand. It is conceded that this company was fully organized at the time the subscription in controversy was made. It was erected by the Act of March 17th 1871, with an authorized capital of $500,000, and as much more as the stockholders might think necessary to complete and equip their road. It was empowered to build a railroad from any point “ beginning at or near the city of Philadelphia, thence by such practicable route, with moderate grades, as will, in the opinion of the president and directors, most conduce to the public interest, terminating on some point on the Pennsylvania Central Railroad, east of Downingtown station, in the county of Chester, in such manner as to connect with the said Pennsylvania Railroad.”

In the contract of subscription, signed by the defendant, the route and terminal points of the road are thus described : “ Commencing at a point on the Pennsylvania Railroad at or near Hestonville, thence by the most practicable route to the valley of Cobb’s creek, thence along Cobb’s creek to a point near City avenue, thence across the West Chester Turnpike road to Naylor’s run, and by the south branch through Pritchett’s farm to Darby creek, and along the valley of said creek to Fawkes’s run, thence along Fawkes’s and Caley’s runs to Newtown Square, thence via Sugartown and Goshenville by the most expedient route to be surveyed, to West Chester, and from .thence to Downingtown, as soon as sufficient funds shall be subscribed to carry on the work.” By this the company undoubtedly agreed that the road shall begin and terminate in certain points therein set forth, and that it shall, when built, occupy the route indicated.

These matters form part of the contract: Plankroad Co. v. Arndt, supra; and if the company has determined to abandon either of the termini or any material part of the route, as set forth in the contract, the defendant is, thereby, released from his obligation. Of this the minutes of the company were evidence; hence the second and fourth points of the defendant should 'have been affirmed. If the above stated doctrine be not correct, then has the defendant no remedy; for as the directors, in changing the route of their road, are acting within the powers conferred by the charter, he cannot prevent such change, though violative of the terms of the contract. He, therefore, occupies much the same position in which, as we have shown, the general stock subscriber is placed when such change is made by virtue of an Act of Assembly. The defendant’s offer, in which he proposed to show that the directors of the company plaintiff, or some of them, assured him, at the time he made his subscription, that the work would not be undertaken, nor the money called for, until bonfi fide subscriptions to the amount of $150,000 had been procured, ought not to have been overruled, for, as we understand the matter, it was one of the inducements by which his signature to the contract was obtained. There was, indeed, in this offer, nothing contradictory of the written instrument; it was, rather, explanatory. The writing reads, “ as soon as sufficient funds shall be subscribed to carry on the work.” This language is quite ambiguous. Would $500 be “ sufficient funds,” or $500,000 ? And what are we to understand by the phrase “ to carry on the work ?” Is the idea fulfilled by a preliminary survey, or is it thereby intended that the whole work shall be put in such a condition as to give a reasonable assurance of its final completion ? And what more reasonable than that a subscriber, who did not want his money to be squandered on a mere idle experiment, should inquire about the amount necessary to put the undertaking properly under Avay, and insist upon the assurance that until such amount was subscribed he should not be called upon to pay ?

Nothing is better settled-in this state than that not only can the ambiguities of a written instrument be explained by parol, but it may, in the same manner, be varied, added to, or even contradicted where it is shown that but for the oral stipulations, made at the time, the party affected would not have executed it. The authorities for, as well as the reasons given in support of this doctrine so abound in our books, that to cite the former, or to restate the latter would be but a waste of time. But, it is said, this corporation was not bound by the declarations of its agents, they 'having exceeded their authority, and hence it was under no legal obligation to fulfil their undertakings. Grant this to beso; but how, then, can it hold the defendant to his part of the covenant ? This plea would answer an excellent purpose were Caley seeking to enforce the contract against the company, but it so happens that the stick is in the other hand. “ If one party be not bound, neither is the other;” Strong, J., in the case of the Railroad Co. v. Stewart, 5 Wright 54. In this respect a corporation differs nothing from a natural person; if it would enforce the contracts of its agents it must first agree to adopt and be bound by them. In the foregoing we have discussed all the exceptions which we deem material or well taken; the rest are dismissed without further comment.

The judgment is reversed, and a venire facias de novo awarded.


author: Per Curiam.

text:
    South Chester Road.
    1. The’Oourt of Quarter Sessions lias not jurisdiction to lay out a road wholly within a borough incorporated subject to the Borough Law of April 3d 1851.
    2. The Act..©f April 12th 1869, relating to roads in Delaware county, does not repeal the Act of 1851 as to jurisdiction.
    3. The Act of 1869 is to regulate the proceedings of viewers under an order made by proper authority ; not to change or confer jurisdiction over roads, streets, &c.
    4. Somerset and Stoystown Road, 24 P. F. Smith 61, followed.

      January 18th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Certiorari to the Court of Quarter Sessions of Delaware county: Of July Term 1875, No. 135.
    On the 28th of May 1874, a petition was presented for the view of a road to begin in Seventh street, at the line between the city of Chester and the borough of South Chester, and to end in a public road called Highland Avenue, at a point, &c., in said borough of South Chester; the street prayed for being an extension of Seventh street in the city of Chester. After reports of viewers and reviewers, a jury of re-review was appointed April 6th 1875.
    The re-reviewers reported that there was occasion for a road as desired by the petitioners and that it was necessary for a public road; they therefore returned for public use a road “ beginning at a point in the middle of Seventh street, in the city of Chester, as the same is laid out and opened by said city, in the middle of Lamoldn run, the said run being the boundary line between said city of Chester and the said borough of South Chester, thence on a -line being a projection of the middle line of said Seventh street, &c., by a single course to Highland Avenue. The road was all in the borough of South Chester. A number of persons through whose land the road was located and the council of the borough of South Chester filed exceptions to the report of the re-reviewers.
    The principal exception was, that the Court of Quarter Sessions had no jurisdiction, the jurisdiction being in the burgesses and council of the borough.
    The borough was incorporated by Act of Assembly of March 12th 1870 (Pamph. L. 413), subject to “the General Borough Laws of the Commonwealth.” These laws are the Acts of April 3d 1851 (Pamph. L. 320) and April 22d 1856 (Pamph. L. 525). Sect. 2 of the Act of 1851, 1 Br. Purd. 167, pl. 22, enacted that a borough corporation should have power, “to survey, lay out, enact and ordain such roads, streets, &c., as they may deem necessary,” &c. Sect. 1 of the Act of 1856, 1 Br. Purd. 174, pl. 94, enacts, that wherever the burgesses and town council of a borough shall open, &e., any street, they may apply to the Court of Quarter Sessions for the appointment of seven freeholders of such borough who shall assess the damages to parties injured by the opening of the road.
    The Act of April 12th 1869, Pamph. L. 862, relating to the “road laws in Delaware county,” enacts that the number of road viewers “ appointed by the Court of Quarter Sessions shall be six,” &c., that if the viewers decide in favor “of locating a public road or street,” and the landowners will not release their claim for damages, the viewers should assess the damages on the adjoining properties as is provided in the act. The act throughout speaks of streets in connection with roads ; it speaks also of the supervisors of “ townships, boroughs and cities.”

    The Court of Quarter Sessions sustained the exceptions, and set the report of the re-reviewers aside : Clayton, P. J., delivering the opinion, viz:—
    “ The street proposed to be opened in this case has both its termini in the borough of South Chester. It begins and ends within the borough limits. The street proposed to be opened by these proceedings is one of the streets of the borough, laid down upon its adopted plan as sixty feet wide. The case is ruled by Somerset and Stoystown Road, 24 P. F. Smith 61. We do not think the Act of April 12th 1869, affects the point decided in this case. While boroughs are named in the Act of 1869, it only means that where boroughs intend to open streets therein, the borough authorities must proceed under this act, and not the Act of 1836. It does not take from boroughs the authority conferred by the General Borough Law, nor does it repeal it. The exceptions are sustained and report set aside.”
    The petitioners took out a certiorari from the Supreme Court, and assigned the decree setting aside the report for error.

      D. M. Johnson and W. Ward, for certiorari.

      W. J. Harvey and O. Harvey, contra.
    January 24th 1876,
   Judgment was entered in the Supreme Court

Per Curiam.

The public road lies within the borough of South Chester as laid out by the viewers, and as is manifest from the entire record. Being wholly within the borough, the Court of Quarter Sessions had not jurisdiction, as is well shown in the case of the Somerset and Stoystown Road, 24 P. F. Smith 61. The Act of April 12th 1869, does not rejoeal the General Borough Law of 3d óf April 1851, and the supplement of April 22d 1856, as regards the point in controversy, viz., jurisdiction. It is an act intended to regulate the proceedings of the viewers under any order made by proper authority, but not to change or confer jurisdiction over the subject of public roads, streets and alleys. We see no error in the record.

Decree affirmed.


author: Chief Justice Asnew

text:
    Pennsylvania Railroad Co. versus Hope.
    1. Sparks from defendants’ engine fired a railroad tie, from which rubbish left by the defendants on their road was fired, communicated with plaintiff’s fence next to the road and spread over two fields, burned another fence and standing timber six hundred feet distant from the road. Held, that the proximity of the cause was for the jury.
    2. In such case the jury must determine whether the facts constitute a continuous succession of events so linked as to be a natural whole, or whether the chain is so broken as to become independent, and the final result cannot be said to be the natural and probable consequence of the negligence of defendants.
    3. The rule for determining what is proximate causéis, that the injury must be the natural and probable consequence of the negligence, and that it might and ought to have been foreseen under the circumstances.
    4. Pennsylvania Railroad Co. v. Kerr, 12 P. F. Smith 353, distinguished.
    January 18th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Chester county: Of January Term 1876, No. 9.
    This was an action on the case issued May 15th 1874, by Thomas Hope, against the Pennsylvania Railroad Company. The cause of action was injury sustained by defendant from the burning of his fences, grass and wood by fire thrown from an engine of the defendants through negligence.
    The plaintiff was the owner of a tract of land in Chester county, through which the Pennsylvania Railroad passes. On the 18th of March 1873, about 10 a. m., after the mail train westward had passed the plaintiff’s farm, it was discovered that his fences and grass were on fire; before the fire was arrested his grass, fences and wood had been much burned.
    The case was tried June 17th 1875, before Butler, P. J.
    The plaintiff testified that the fire had burned over a considerable portion of two grass fields ; had destroyed one hundred and fifty-two panels of fénce and had injured much timber; rubbish which had been thrown on the railroad had been burned; the rubbish was weeds and grass which had been cut the fall before and permitted to remain ; the distance from the railroad track to his fence was five or six feet; from the railroad to the woods it was about two hundred yards; there was a fence between the field and the- woods; about eight panels of fence were burned at the railroad ; there was at the time a strong wind blowing from the northeast in the direction which the fire took.
    Another witness testified, that whilst working in the field he saw a flame on the railroad, he went to it and found a railroad tie burning, and fire caught from it to some rubbish lying between the railroad and the fence; the rubbish had been cut by the hands of the company and had lain there all winter.

      Another witness testified that he saw the fire about five yards from the fence and it went right across the field; he testified also as to the rubbish on the track substantially as previous witnesses, as also did two other witnesses.
    Witnesses for the defendants testified that the stack on the engine was the Laird stack, considered at that time amongst the best in use; that all stacks will throw some sparks; that no device had yet been found to prevent the emission of sparks and at the same time allow enough draft to generate steam sufficiently; that the stack of this engine had been examined by the inspector at Philadelphia before it started that morning and at Harrisburg after it arrived; that it was .in good condition at each examination, and that it was in good condition also on its return to Philadelphia on the next day. The evidence was full and uncontradicted on these points.
    The following are points of the defendants with their answers :—
    5. The only evidence in this cause respecting the alleged negligence of the defendant as to the condition of its roadway, is that the natural growth of grass and briers upon the same had, in the summer of 1872, been cut down or pulled up, and to an extent not exceeding half enough to fill a wheelbarrow, placed between the north track of the defandants’ road and the fence of the plaintiff, and such evidence is not sufficient in law to justify the jury in finding that the defendants were guilty of negligence in this respect.
    6. The evidence as to the condition of the engine and the care of its management is so clearly in favor of the allegations of the defendants, that the same was in good and proper condition and carefully used, that the defendants are not chargeable with any negligence as respects it.
    7. There is no such evidence iii the cause of negligence on the part of the defendants, either as to the care of their engine, or the care of their roadway, as would justify the jury in finding for the plaintiff.
    Tbese points were refused.
    8. The sparks emitted from the engine, and the fire thereby caused upon the line of the defendants’ roadway were not the proximate cause of the burning of the fence betwmen the pasture land and the woodland itself; both the fence and the woodland being at least six hundred feet distance from the place where the fire originated.
    This point was reserved.
    The court, amongst other things, charged: * * *
    “ You will determine how the fact is — whether rubbish in a combustible condition, in quantities sufficient to be dangerous, as before indicated, was permitted to lie alongside the track on the roadway, as the plaintiff charges. The condition of the roadway, however, is of no importance here, if it did not assist to spread the fire on to the plaintiff. But, according to all the evidence bearing on the question, it would seem that the fire was first kindled on the roadway, and, by means of combustible matter there, conducted to the plaintiff’s property.
    “Now, you will determine from the evidence whether the defendants were guilty of negligence (either as respects the engine or the condition of the roadway), by which the fire was kindled or spread on the plaintiff’s property. If they were not guilty of such negligence, your verdict will be for the defendants, and you need go no further.-’ If, however, they were guilty of such negligence in either respeet — that is, negligence which kindled or spread the fire on the plaintiff — they are responsible to him for all the injury which you shall find to be the direct and natural result of their act. We repeat, the direct, natural result, because it is only for such injury that an individual or corporation is responsible on account of negligence — that which flows directly, naturally, from one’s careless act, and which he ought, therefore, to have foreseen, because common prudence would have enabled him to do so. For the remote consequences of such act — consequences which common prudence could not anticipate and foresee — he is not responsible, and in justice should not be.
    “ And thus we are brought to the last subject that requires our consideration — the question of the plaintiff’s loss. His fences at the side of the railroad, by the woods, and dividing his fields, were burned; two fields were burned over; and a part of his woodland, as has been described by the witnesses. You will find from the evidence and the view which you made, what the actual loss from, these sources was, and what part of this loss was the direct, natural result of kindling the fire, without the aid of any intervening or contributory cause. The defendants contend that the burning of the woods and the fence adjoining it* was not such direct and natural result, but was the remote consequence of the fire, not reasonably to have been anticipated from starting it. If you find this to be so, you will not include the loss from this source in your verdict, if your verdict should be for the plaintiff.
    “ In conclusion, we will repeat the questions stated : First, were the defendants guilty of negligence by which the fire was kindled on the plaintiff ? If it was not so guilty, your verdict will be in favor of the defendants. If you find the defendants were guilty of such negligence, your verdict will be for the plaintiff for such part of the injury he has sustained by the fire as you find to have been the direct, natural consequence of their negligence, and in such sum as in your judgment maybe sufficient to cover the loss'arising therefrom. If your verdict is in favor of the plaintiff, and you assess damages for the burning in the woods and the fence adjoining thereto, you will state what you have assessed for the burning in the woods and the fence adjoining, so that we may consider that part of the plaintiff’s claim separately hereafter, if it becomes necessary to do so.”
    The jury found for the plaintiff $221.32.
    The parties afterwards entered into the following agreement:—
    “ September 13th 1875. It is agreed that the damages embraced in the verdict of the jury shall be apportioned, as apportioned by jury, as follows: Eor damage to the fence by the railroad and to the grass fields, $30 ; for damage to the fence by the woods the sum of $55; for damage to the woodland $110; and that the interest for two years and six months, $26.32, mentioned in this verdict, shall be apportioned among the several sums pro rat&.”
    Upon the reserved point the court afterwards said:—
    “ We are now required to dispose of this point. We do so by denying it and directing judgment to be entered for the plaintiff for the whole amount of the damages assessed. Under the circumstances shown, we consider the proximate cause one of fact for the jury. * * * Whenever the injury is the direct result of the act complained of — -the natural result — such as should have been anticipated with reasonable certainty, it is not too remote.”
    The defendants took a writ of error and assigned for error, the answers to the points and entering judgment on the reserved point.

      W. Mae Veagh and W.. Darlington, for plaintiff in error,
    cited Pennsylvania Railroad Co. v. Kerr, 12 P. F. Smith 353; Fairbanks v. Kerr, 20 Id. 91; Ryan v. N. Y. Central Railroad Co., 35 N. Y. 210.

      W. B. Barber, for defendant in error,
    cited Smith v. London & S. W. Railroad Co., Law Rep. 5 C. P. 98; Vaughan v. Taff Vale Railroad Co., 3 Hurlst. & N. 679; Flynn v. San Francisco & St. Jo. Railroad Co., 40 Cal. 14 (6 Am. R. 595); Clement v. Hannibal & St. Jo. Railroad Co., 53 Mo. 366 (14 Id. 460); Fent v. Toledo, P. & W. Railroad Co., 59 Ill. 349 (Id. 13); Kellogg v. Chicago & N. W. Railway Co., 26 Wis. 223 (7 Id. 69); Perley v. Eastern Railroad Co., 98 Mass. 414; Webb v. Rome, W. & O. Railroad Co., 49 N. Y. 420; Ins. Co. v. Tweed, 7 Wall. 45; Pittsburg v. Grier, 10 Harris 65; Scott v. Hunter, 10 Wright 192; McGrew v. Stone, 3 P. F. Smith 436; Fairbanks v. Kerr, 20 Id. 90.
    Februrary 7th 1876.
   Chief Justice Asnew

delivered the opinion of the court,

Two principal questions arise in this case. The first has relation to the fact of negligence as causing the fire, and the second to the nearness or remoteness of the injury to the negligence causing it. The first three assignments of error belong to the former, and the fourth to the latter.

The court submitted to the jury the question of actual negligence. This was proper. The complaint is not that negligence is not a fact to be determined by them, but that the evidence of it was too weak, while the testimony of the defendant was strong and pointed, that their engine was in good order, well supplied with the best spark arrester, and was carefully and skilfully managed. It is true that the defendants made out a strong case, but there was such evidence of the fire having been kindled by the engine on the defendants’ roadway, and carried thence into the fields of the plaintiff, by the dry grass cut and pulled up and piled with other rubbish upon the. defendants’ roadway, as tended to contradict the evidence of the defendants, strong as it seemed to be. The plaintiff’s own testimony, as to how the fire kindled and spread, was corroborated by several witnesses. Hence it became a question of veracity and probability, which could not be withdrawn from the jury. The jury found the fact of actual negligence.

The second question is of importance, and in view of our own case of Pennsylvania Railroad Co. v. Kerr, 12 P. F. Smith 353, requires a careful examination. After the mail train passed, fire was immediately discovered in one of the cross-ties of the track, which was communicated directly to the grass adjoining, and running into a small heap of dry grass that had been cut and pulled and thrown into a pile, in the fall before, was carried thencé'by means of rubbish and dry grass on the company’s ground, across the roadway to the fence, which was fired, and thence across two grass fields, burning the dry grass in its pathway, until it reached the plaintiff’s fence and woodland, about six hundred feet from the railroad, burning the fence and a large part of the woods. The weather was dry and windy, and the direction of the wind was strongly toward the plaintiff’s fields and woods.

It is contended that the defendants are not liable for the injury to the plaintiff’s fence and woods, on the ground that the injury was too remote from the original cause; and The Pennsylvania Railroad Company v. Kerr is cited as authority for this. We agree with the court below that the question of proximity was one of fact peculiarly for the jury. How near or remote each fact is to its next succeeding fact in the concatenation of circumstances from the prime cause to the end of the succession of facts, which is immediately linked to the injury, necessarily must be determined by the jury. These facts or circumstances constitute the case, and depend upon the evidence. . The jury must determine, therefore, whether the facts constitute a continuous succession of events, so linked together, that they become a natural whole, or whether the chain of events is so broken, that they become independent, and the final result cannot be said to be the natural and probable consequence of the primary cause — the negligence of the defendants. The rule concerning involuntary negligence, as distinguished from wanton or intentional injury, is expressed in the maxim, causa próxima non remota spectatur. The rule is undisputed, but the difficulty lies in its application arising sometimes from the barrenness or uncertainty of the evidence, and sometimes from the intrinsic difficulty in the nature of the circumstances. In all or nearly all cases, the rule for determining what is a proximate cause is, that the injury must be the natural and probable consequence of the negligence, and that this might and ought to have been foreseen under the surrounding circumstances. These are the circumstances of the particular case, and from the nature of the thing must be referred to the jury. ' All the court can do is to aid the jury by pointing to the relations of the facts. The jury must determine whether the original cause, that is, the negligence, is, by continuous operation, so linked to each successive fact, as that all may be said to be one continuous operating succession of events, in which the first becomes naturally linked to the last, and to be its cause, and thus to be within the probable foresight of him whose negligence ran through the succession to the injury. In determining this relation, it is obvious we are not. to be governed by abstractions, which, in theory only, cut off the succession. Abstractly each blade of grass or stalk of grain is distinct from every other; so one field may be separated from another by an ideal boundary, or a different ownership, or it may be by a real but combustible division line. But we cannot say that therefore the succession fails. It is at this point the province of the jury takes up the successive facts and ascertains whether they are naturally and probably related to each other by a continuous sequence, or are broken off or separated by a new and independent cause. The practical knowledge and common sense of the jury applied to the evidence steps in to determine whether the injury is the real proximate result of the negligence, or, by reason of intervening and independent causes must be regarded as. too remote, and the result not within the probable foresight of the party whose negligence .is alleged to have produced it. ■ Applying to the facts of this case this practical every day sense, we cannot say that the verdict of the jury was not a well formed judgment.! In a field of dry grass, such as is described, and in such a state of the weather, it is obvious that a fire communicated to it from the fence of the roadway, will pass from blade to blade, and stalk to stalk, until reaching a fence where old dried grass lies entangled among the rails ; the fence, instead of being a barrier, only adds fuel to the flames. Thus by a continuous succession, open and probable to. every eye, a fire started by negligence on the roadway continues onward without cessation, and every blade, stalk and rail becomes a part of the concatenation leading to the result, however far it be from the starting point. Here may be noticed the material qualifications of the late Chief Justice Thompson, in his opinion in the Railroad Co. v. Kerr, where he remarks, that there may be cases in which the causes of disaster, though seeming removed from the original cause, are still incapable of distinct separation from it; and where he adds, that the maxim causa próxima non remota spectatur is not controlled by time and distance, but by the succession of events. Had this case been presented to his mind, I doubt not he would have contrasted it broadly with that of Railroad Co. v. Kerr.

These remarks are perhaps sufficient to place this case on a basis of principle. It is also sustained by precedents. The following maybe cited as distinctly and clearly on the point: Kellogg v. Chicago & Northwestern Railway Co., 26 Wis. 224; Clement v. Hannibal & St. Jo. Railroad Co., 12 Mo. 366; Webb v. Rome, Watertown & O. Railroad Co., 49 N. Y. 421, Perly v. Eastern Railroad Co., 98 Mass. 415; Vaughan v. Taff Vale Railway Co., 3 Hurlst. & N. 73. The principles announced in Tent v. Toledo, Peoria & Warsaw Railway Co., 59 Ill. 349, tend in the same direction ; but it is a case more clearly allied in its facts to Penna. Railroad Co. v. Kerr, supra, which it criticises with some acerbity, and an imperfect understanding of the case, and with a little confusion of thought. It was not held in Railroad v. Kerr, that when a second building is fired from the first, set on fire through negligence, it is a mere conclusion of law that the railroad company is not answerable to the owner of the second (59 Ill. 362); or that if a fire is communicated from the locomotive to the field of A., and spreads through his field to the adjoining field of B., A. may be reimbursed by the company, while B. must set down his loss to a remote cause, and suffer in silence (Id. 358).

The determination of the writer of the opinion to cling to the ancient doctrine, that the wanton wrongdoer must take the consequences of his acts, whether measured by one or one hundred thousand dollars, perhaps is forcible. But as wanton injury was no characteristic of the case of.Railroad v. Kerr, his conclusion is somewhat remote. It is quite possible some may not be shocked at the terrible and unforeseen consequences which follow a little act of unconscious negligence, as where a poor washerwoman boiling clothes set fire to the straw of an ico house, which in turn fired another building, and burnt on until the one-fourth of Pittsburg lay in ashes. The mind of Chief Justice Thompson was of a different cast, and it did revolt at following out the consequences of an unintentional, yet legally speaking, negligent act, to a ruin so gigantic. But let us examine the case of Railroad Co. v. Kerr, and it will be found to be free from much of the criticism expended upon it. The facts were undisputed, in the words of Judge Taylor, who tried the cause, were uncontroverted and incontrovertible, and the point made before him was that the plaintiff had no cause of action, for the reason that the alleged negligent burning was not the natural and necessary result of the burning of the warehouse. It was contended “ that where the act complained of was not voluntary or intentional, or one of affirmative illegality, but was simply the absence of proper care and caution, and not in itself the subject of criminal complaint, responsibility is not carried beyond the necessary and natural consequences of the act.” When the case came into this court it was upon a reserved question to wit, u assuming that the warehouse was ignited by sparks from the engine, chargeable to the negligence of the defendants’ servants, the plaintiff, whose property was burnt in another building, to which the fire was communicated from the warehouse, and not from the engine, has no cause of action, for the reason that the alleged negligent burning was not the natural and necessary result of the burning of the warehouse.” Thus the proposition came up in a bald and naked form, of a fire merely communicated from one house to another, and not the natural and necessary result of the burning of the warehouse. This was really the very question which ought to have been submitted to the jury, instead of being reserved in this form. In this state of the case the opinion dealt with the reserved question as one of primary and secondary causes. What might have been its fate if it had been committed to the jury to determine whether the communication of the fire from one building to the other was a natural and probable consequence of the firing of the first, it may not now be easy to say. Yet, as the case was placed before the mind of Chief Justice Thompson, there is no reason to doubt the correctness of his conclusion. From the very essence of the thing, the natural probability of a consequence, which ought to have been seen, is a matter of fact to be determined upon the evidence. Every case must depend upon its own circumstances: Kellogg v. Chicago & N. W. Railway Co., supra, is a case nearly on all fours with this. There Chief Justice Dixon, in a well-considered opinion, reaches the same conclusion, and fairly and in a proper spirit distinguishes Railway Co: v. Kerr from the one he was discussing, remarking that the facts so entirely distinguish it that it seems hardly necessary to comment upon it. That in the former the point was, that the burnings were distinct and separate, a series of events succeeding one another ; while in that before him there was but one burning, one continuous conflagration from the time the fire was set on the railroad until the plaintiff’s property was destroyed. So it was here, the fire burning onward in direct and continuous succession, until it reached the woodland of the plaintiff.

Upon the whole case the conclusion seems to be with the plaintiff below, and the judgment should be affirmed.