author: Per Curiam.

text:
    Pennsylvania Railroad Co. versus Stranahan.
    In an action against a railroad company for burning a barn by sparks from the engine, there was evidence that the fire commenced at or near the railroad track, and that engines had passed shortly before the barn was fired, raising the presumption that it was fired by sparks from an engine, the particular one not being known. Held, that evidence by a witness living nineteen miles from the barn that it was a common occurrence for engines about where he lived to set fire for rods from the track, was admissible.
    October 22d 1875.
    Before Agnew, O. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Mrie county: Of October and November Term 1874, No. 230.
    This was an action on the case, brought by John D. Stranahan, against the Pennsylvania Railroad Company, for the burning of the barn of the plaintiff by sparks thrown from one of defendants’ locomotives.
    The plaintiff owned a farm about twenty-three miles from the city of Erie, through which the Philadelphia and Erie Railroad, operated by the defendants, is constructed. On the 6th of November 1867, the barn of the plaintiff was burned, as he alleged, by sparks from one of defendants’ engines.
    The evidence was that between two and three o’clock in the afternoon, the plaintiff’s barn was discovered to be on fire; two trains, had passed about noon; the barn was about one hundred and fifty feet from the railroad. The fire appeared to have commenced at the fence on the road, and burned over the field to the barn. The sparks falling set fire in many places along the road.
    The plaintiff proposed to show by a witness that he lived four miles from the court house, on the line of the railroad, and also to show by him the extent to which the locomotives on the road, going east on or about the 9th of November 1867, threw sparks from the smoke-stacks of same.
    Objected to by defendant for the reason that the location of the witness and his knowledge of the facts is too remote from the place where the injury is said to have occurred.
    The court (Wetmore, P. J.) admitted the evidence and sealed a bill of exceptions for defendants.
    The witness said “ it is a common occurrence for the engines to throw sparks’ and set fire for rods from the railroad track. They were from a pea to a walnut in size. It appeared worse sometimes than others. They were usually freight trains. Sometimes passenger trains. It is heavy grade past my place.”
    There was other evidence that there were fires in many “places” on the day the barn was burned.
    The verdict was for the plaintiff for $1392.40.
    The defendants took a writ of error and assigned for error the admission of the evidence objected to.

      J. R. Thompson, for plaintiff in error.

      W. Benson, for defendant in error,
    cited Frankf. & B. Turnpike Co. v. Phila. & T. Railroad Co., 4 P. F. Smith 345; Selden v. Hudson R. Railroad Co., 4 N. Y. 218; Chesterfield v. N. Y. Central Railroad Co., 32 Id. 339; Huyett v. Phila. & R. Railroad Co., 11 Harris 373; 1 Redfield on Railways 454, 455; Shearman & Redfield on Negligence 380.
   Judgment was entered in the Supreme Court, November 1st 1875,

Per Curiam.

This was not a case where a certain engine had thrown out the sparks which set fire to the plaintiff’s barn, but it was where the engine was unknown, yet the cause of the fire was clearly traced to the railroad track, and left the belief that some one of the engines of the defendants had emitted the coals which set the barn on fire. It, therefore, became necessary to establish the fact by such proof as rendered the belief a certain fact. This could be done, not by the proof that a certain engine emitted sparks incessantly, for non constat that this particular engine had passed the plaintiff’s premises on that day. Hence it was necessary to permit the party to show that the emitting of coals and sparks in unusual' quantities was frequent and permitted to be done by a number of engines. Tbe range of the evidence in this respect of necessity carried it to a greater range as to locality also. We cannot say that the court below committed any error in the admission of the evidence assigned for error.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Lane et al. versus Nelson.
    1. Administration of Nelson’s estate was duly granted by the register of Jefferson county ; the administrator applied.to the Orphans’ Court of Jefferson county for a sale of decedent’s land, described as being in Jefferson and Clearfield counties, for payment of debts ; the’ order was issued, the land sold, sale confirmed by the court, the purchase-money paid to the administrator and appropriated to the payment of the debts. It was afterwards discovered the iand was entirely in Clearfield county. After an ejectment brought by the heirs of Nelson against the purchaser for the land, an of Assembly was passed validating the sale. Held, that the act was constitutional and the purchaser’s title was valid.
    2. The Orphans’ Court of Jefferson county having jurisdiction of the accounts of the administrator, had a right to order the conversion of the decedent’s real estate for the payment of his debts ; it could not consummate it without the aid of the courts of Clearfield county, but the court of Clearfield county was ancillary only to the court of Jefferson county.
    3. As the legislature cannot by an arbitrary edict take one man’s property and give it to another, a judicial proceeding which is void for want of jurisdiction cannot be validated by an Act of Assembly.
    4. The legislature cannot exercise judicial powers.
    5. If an Act of Assembly is within the legislative power, it is not a valid objection to it that it divests vested rights.
    6. Retrospective laws divesting vested rights, unless ex post facto laws or impairing the obligations of contracts, are not within the prohibition of the United States Constitution, however repugnant to the principles of sound legislation.
    7. Where jurisdiction has attached and there has been a formal defect in the proceedings, where the equity of the party is complete and all that is wanted is legal form, the legislature may correct such defect and provide a remedy.
    8. Richards v. Rote, 18 P. F. Smith 248, distinguished.
    November 11th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson, and Woodward, JJ.
    Error to the Court of Common Pleas of Jefferson county: Of October and November Term 1874, No. 5.6.
    This was’an action of ejectment, brought December 14th 1869, by William Nelson and Lydia Nelson, against N. B. Lane and George Nelson, for 162 acres of land in Snyder township. William Nelson’s death was suggested of record February 12th 1874.
    By patent of April 5th 1856, Leander Drury became the owner of a tract of land situate partly in Fox township, Clearfield county, and partly in Washington township, Jefferson county, containing 461 acres and 119 perches. On the 6th of December Drury conveyed to John Nelson, “ all that certain piece of land, &c., situate in the townships of Washington and Fox in the counties of Jefferson and Clearfield, containing 162 acres,” part of the tract above mentioned, and being the land in dispute. John Nelson paid taxes on the land in Jefferson county up to the time of his death on the 31st of May 1862. He died intestate, unmarried and without issue, leaving his father and mother, the plaintiffs in this suit, to survive him, and some brothers and sisters. On the 12th of September 1862 administration of John Nelson’s estate was granted to James Nelson. On the 8th of September 1862 the administrator petitioned the Orphans’ Court of Jefferson county for an order of-sale of the real estate of the decedent, being 162 acres, more or less, in the township of Washington, county of Jefferson, and the township of Fox in the county of Clearfield, for the payment of his debts. An auditor was appointed to ascertain the facts, &e. On the 18th of September 1862, after proof of notice to all the heirs in this country — some of the decedent’s family, including the plaintiffs, then living in Ireland — the auditor reported, recommending a sale of the real estate above mentioned, for payment of the debts of the decedent; an order was accordingly issued, in pursuance of which the land was sold on the 6th of December then next to Samuel Patton ; the sale was confirmed on the 11th of the same month and a deed made to the purchaser February 13th 1863. The proceeds were appropriated to the payment of the decedent’s debts. By intermediate conveyances this title to the land was vested in N. B. Lane; the other defendant, George Nelson, occupied the land. Taxes for the land continued to be paid in Jefferson county until 1864 or 1865.
    At the time of the Orphans’ Court sale and until April 4th 1868 the land was entirely in Clearfield county. On the day last mentioned an Act of Assembly — Pamph. L. 651 — was passed annexing part of Clearfield county, including the land in dispute, to Jefferson county.
    On the 1st of April 1873 an Act of Assembly — Pamph. L. (1873) 473 — entitled An Act to validate the sale of the real estate of John Nelson, deceased, &c., wras passed. The preamble recited the order of sale by the Orphans’ Court of Jefferson county to sell the premises, “ then supposed to be situated in Washington township, Jefferson county, and Fox township, Clearfield county,” for the payment of the debts of the decedent, the sale by the administrator, and that “ the proceeds thereof were appropriated according to law to the payment of the debts of the said deceasedthat it then appeared that the premises lay wholly in the county of Clear-field ; that the proceedings and sale were had without the knowledge of that fact, and that by reason thereof the title to the land was defective; “for remedy of the said defect,” it was enacted that the sale “be and the same is hereby ratified and confirmed, and the same shall be taken, deemed and held to be a valid and effectual sale and to have like force and effect as if the said real estate when sold was situated- in the county of Jefferson, and all proceedings therefor had been found regular and in accordance with the statutes in such case made and provided.”
    The case was tried February 12th 1874, before Jenks, P. J., when the foregoing facts appeared. -
    The plaintiffs’ points were :—
    1. If the land described in the Orphans’ Court sale lay wholly in the county of Clearfield at the time of the proceedings in the Orphans’ Court of Jefferson county, those proceedings vested no title in Samuel Patton, the purchaser at that sale.
    2. The Act of 1st of April 1878, by which the title of the defendants is claimed to be cured, is void for the purpose of transferring the property to the defendants.
    Both points were affirmed.
    The verdict was for the plaintiff.
    The defendants took a writ of error and assigned for error, the affirming of plaintiff’s points.

      A. L. Cordon and W. C. Corbet, for plaintiffs in error.

      Jenks if Clark, B. J. Beid and J. Campbell, for defendant in error.
    —The sale under the order of the Orphans’ Court of Jefferson county was void for want of jurisdiction: Menges v. Oyster, 4 W. & S. 20. The Act of April 1st 1873 is unconstitutional and void: Vanhorne v. Dorrance, 2 Dall. 304; Norman v. Heist, 5 W. & S. 171; Brown v. Hummel, 6 Barr 87; Dale v. Medcalf, 9 Id. 108 ; Greenough v. Greenough, 1 Jones 489 ; McCabe v. Emerson, 6 Harris 111; McCarty v. Hoffman, 11 Id. 507; Kneass’s Appeal, 7 Casey 87; Menges v. Dentler, 9 Id. 495 ; Baggs’s Appeal, 7 Wright 512; Caverow v. Insurance Co., 2 P. F. Smith 287 ; Schafer v. Eneu, 4 Id. 304 ; Shonk v. Brown, 11 Id. 321; Craig v. Kline, 15 Id. 399 ; Palairet’s Appeal, 17 Id. 479 ; Richards v. Rote, 18 Id. 248.
   Mr. Justice Paxson

delivered the opinion of the court, November 15th 1875.

It is settled by a current of authority that the legislature cannot, by an arbitrary edict, take the property of one man and give it to another; and that when it has been attempted to be taken by a judicial proceeding, as a sheriff’s sale, which is void for want of jurisdiction, it is not in the power of the legislature to infuse life into that which is dead: Norman v. Heist, 5 W. & S. 171; Greenough v. Greenough, 1 Jones 489 ; De Chastellux v. Fairchild, 3 Harris 18; Meyer v. Dentler, 9 Casey 495; Baggs’s Appeal, 7 Wright 512 ; Schafer v. Eneu, 4 P. F. Smith 304 ; Shonk v. Brown, 11 Id. 320 ; Richards v. Rote, 18 Id. 248 ; Hegarty’s Appeal, 25 Id. 503. To exercise judicial powers is not within the legitimate scope of legislative functions ; and when yested rights are divested by acts of that character they will and ought to be judged inoperative, null and void: Baggs’s Appeal. On the other hand, if an Act of Assembly is strictly within the scope of legislative power, it is not a valid objection that it divests vested rights. There is no clause, either in the Constitution of the United States or of this Commonwealth, which prohibits retrospective laws : Grim v. Weisénberg School District, 7 P. F. Smith 433. The legislature cannot impair the obligation of a contract, or pass an ex post facto law, for both of these are expressly forbidden; But an ex post facto law is one which makes an act punishable in a manner in which it was not punishable when it was committed: Fletcher v. Peck, 6 Cranch 138. Retrospective laws and state laws divesting vested rights, unless ex post facto, or impairing the obligation of contracts, do not fall within-the prohibition contained in the Constitution of the United States, however repugnant this may be to the principles of sound legislation: Grim v. Weissenberg School District ; Calder v. Bull, 3 Dallas 386; Satterlee v. Matthewson, 2 Peters 413 ; Watson v. Mercer, 8 Peters 88.

Legislation of the character referred to is no novelty in this state. We have numerous instances in which it has been invoked for a great variety of purposes. In some cases it has been sustained, and in others declared unconstitutional. The boundary line between the domains of authorized and prohibited legislation. is not very clearly defined. Acts of Assembly passed at different times to render valid defects in acknowledgment of deeds have been sustained, although the effect of them was to interfere with vested rights: Tate v. Stooltzfoos, 16 S. & R. 35; Mercer v. Watson, 1 Watts 330. In like manner Acts of Assembly, to remedy defects in judicial proceedings, have been held to be valid. Thus an act curing an irregularity in the entry of a judgment was held to be within the legitimate province of the legislature: Underwood v. Lilly, 10 S. & R. 97. In Bleakiney v. The Bank of Greencastle, 17 S. & R. 64, an act validating suits pending Avas sustained. In Estep v. Hutchman, 14 S. & R. 435, a private act, authorizing a guardian to convey land sold by the father of his ward and paid for by the purchaser, was sustained. In'the case of The Turnpike Company v. The Commonwealth, 2 Watts 433, the broad principle is asserted that where a right exists, but no remedy to .enforce it, it is within the constitutional power of the legislature to provide one. In Smith v. Merchand’s Executors, 7 S. & R. 260, an act to enable purchasers of- defective tax-titles to recover back from the county commissioners what they had paid over and above the taxes, was sustained, though the purchaser had no previous title to recover. In Grim v. Weissenberg School District, before cited, an illegal tax had been collected, under protest; after the party had brought suit to recover it back, an act legalizing the tax was passed, and it was held that the act defeated the cause of action, and was not unconstitutional for the reason that the legislature having the power antecedent to authorize the tax, could cure any irregularity or want of authority in levying it by a retroactive law.

While the legislature may not by a retroactive law render valid judicial proceedings which were utterly void for want of jurisdiction, as in Richards v. Rote, before cited, it is equally clear that in cases where the jurisdiction has attached, and there has been a formal defect in the proceedings, where the equity of the party is complete, and all that is wanted is legal form, it is within the recognised power of the legislature to correct such defect and to provide a remedy for the legal right. The Orphans’ Court of Jefferson county had jurisdiction in this matter. Having jurisdiction over the accounts of the administrator it had the right to order a conversion of the real estate of the decedent for the payment of h'is debts. It is true, that as to land lying in Clearfield county, the-Orphans’ Court of Jefferson county could not consummate the conversion of the real estate in Clearfield county into money without the aid of the Orphans’ Court of the latter county. But in this matter the Orphans’ Court of Clearfield county is merely ancillary to the Orphans’ Court of Jefferson ; the latter court is the actor, but it uses the hand of the Orphans’ Court of Clearfield to execute its decree. It is an undisputed fact, that at the time of-the Orphans’ Court sale it was not known to the counsel, the parties, or the court, that the land described in the petition was situated wholly in Clearfield county. It was not known until long after the sale had been made and confirmed and the purchase-money paid. The purchase-money was properly applied to the payment of the decedent’s debts. We. have here the case of a defect in a judicial proceeding in a case in which the court had jurisdiction, with a complete equitable right in the purchaser at the Orphans’ Court sale, but without any legal form or remedy by which such right may be asserted and sustained. The Act of Assembly does no more than provide such legal remedy. It interferes with no man’s right. It does not take the property of one person and give it to another. It is true, it does prevent the plaintiffs below from wresting property for which they have paid nothing from the hands of honest holders who have paid full value. The plaintiffs are mere volunteers. It is true, that upon the death of John Nelson, his real estate descended to and'vested in his heirs. But it vested in them subject to the payment of h'is debts. It was sold under the authority of a judicial decree for that purpose; that the proceedings were technically defective, and have been validated by a legislative enactment, works no injustice to any of the.héirsat-law of John Nelson.

We think the court below erred in ruling that the Act of April 1st 1873, was void. As the whole case turns upon this point, it is unnecessary to discuss the remaining assignments of error.

Judgment reversed.

Mr. Justice Mercur dissented.


author: Chief Justice Agnew

text:
    Perry Township versus John.
    1. The original construction of roads is to be governed by the topographical features, population and taxable ability of the township.
    2. In making a road which was constructed on the bank of a stream it was necessary at one place to cut into a hill of rock; it was made more than wide enough for one carriage, but not for two carriages to pass safely, there were “ turn-outs” at a convenient distance; two meeting carriages attempted to pass, their wheels struck each other, and one was thrown into the stream and the horses drowned. In an action against the township by the owner for the loss, the court below rejected evidence that the road could not have been made wider or protected by a wall next the stream without incurring enormous expense, such as the township could not bear. Held to be error.
    3. The plaintiff saw the other carriage approaching some distance from the place of meeting: Held, that he was guilty of contributory negligence in attempting, under the circumstances, to pass.
    4. The questions whether the injuries arose from the fault of the township in the condition of the road or from the necessity in the original construction of making a single track road at the place of the accident, were for the jury.
    5. The rights and liabilities of municipalities in constructing highways in difficult places, at very great expense, &c.,' considered in this case.
    6. Erie v. Schwingle, 10' Harris 384, distinguished.
    November 16th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Greene eounty: Of October and November Term 1875, No. 69.
    This was an action on the case commenced January 13th 1871, by David John against Perry township, to recover for the loss of two horses, &c., which had been precipitated over the side of a road into a stream below and drowned; the accident having occurred, as he alleged, through the negligence of the supervisors in not keeping the road of a proper width and in proper repair.
    The case was tried January 14th 1875, before Willson, P. J.
    The road in question led to “ Mt. Morris, along Dunkard Creek,” and had been laid out and confirmed on the 19th of Novemher 1833. The accident occurred at a place called the “Narrows.” The road there is cut along the bank of the creek, for the most part in rock, and at the place of the accident is about eleven feet wide; for a considerable distance, the width of the road is hut from nine to fourteen feet wide; the supervisors had constructed passing places or “turn-outs” along the “Narrows;” one was about twenty-five yards on one side óf the place of the accident, another about thirty-seven yards on thé other side; the side of the road next to the creek was supported by a stone-wall built without mortar; there was no barrier or guard on that side of the road.
    In the latter part of November 1870, the plaintiff was returning home from Mt. Morris with his wife in a two-horse wagon; when he reached the “Narrows” hesaw a one-horse “buck wagon,” driven by a boy, thirty or forty yards from him; he called to the boy, who drove to the upper side of the road “ as close as he could get” and stopped. The wife got out of the wagon on the bank and took the lines to drive the horses; they moved on slowly' till the hub of the hind wheel of his wagon caught the fore wheel of the boy’s wagon ; the plaintiff then stopped his horses, he moved his wagon over about two inches so that it would pass the other; he again moved his horses forward, his wagon was just passing the other when the horse next to the cre’ek stepped on a sliding stone, slipped and fell, and his struggles drew the other horse and wagon into the creek; both were drowned, and the wagon and harness injured. The plaintiff stated the foregoing facts as to the accident on his examination; he said also: “I don’t think the road is more than nine feet wide there; two wagons could not pass safely; I thought by being careful I could pass. * * * I have known the road since I was a boy, and it has Been in the same condition at the‘Narrows,’since I have known it; * * * if I had been looking out along the road I might have seen the boy a little sooner; I did not halt when I saw him.”
    Other witnesses for plaintiff testified to the same facts as to the character of the road.
    The defendant’s witnesses testified also as to the character of the road, not varying materially from the foregoing statements.
    Patrick Donnelly testified that the hill was hard to quarry out; to widen the road at the narrowest point to ten feet would leave the hill at the side of the road twenty feet-high; that the wagons from the point of the accident could have backed into the “ turnout.”
    The defendant then offered to prove by this witness, and others, that the road at the place where the accident happened could not have been made wide enough to admit of teams passing each other with ease and safety, and that it could not have been protected on the side next to the creek by the erection of a wall or otherwise without incurring an enormous expense, such as the township could not bear. This is offered in connection with evidence already in for the purpose of showing that there were convenient places of passing, and that the defendant was not guilty of negligence.
    The plaintiff objected on the ground that the evidence is irrelevant, as the facts, if proved, would not amount to a defence.
    The offer was rejected, and a bill of exeptions sealed for the defendant.
    The plaintiff’s second point and its answer were:—
    2. If the plaintiff, honestly believed that he could safely pass the wagon he met by its being driven upon the bank, and the jury find from all the evidence that he exercised the ordinary and reasonable care of a prudent man in his efforts to do so, it would not be such contributory negligence as would relieve the township from liability, it being the primary cause of the accident, and the verdict of the jury should be for the plaintiff for the value of the horses and injury done to the wagon and harness, with interest from the date of the accident.
    Answer: “ This point is affirmed, with this instruction: that the belief therein stated must be such a belief as a man of ordinary prudence would, under the circumstances, have entertained.”
    The following are points offdefendant and their answers:—
    2. If the jury find that the road for the space of about seventy yards, embracing the place where the accident happened, by reason of the rock on one side and the creek on the other, could not have been widened or made secure on the creek side by a wall or otherwise, so as to admit of teams passing each other with ease and safety, without a vast amount of labor; that within short distances from the place where the accident occurred there were places in the road where teams could pass each other with ease and safety, and to which teams meeting at the place of the accident could be backed without difficulty or risk; that the road in all respects, save width and protection on the creek side, was in good condition, and that the township was in no default in not securing a change of location, then there was no negligence on the part of the defendant, and the plaintiff cannot recover.
    Answer: “ This point is refused.”
    3. If the plaintiff on meeting the buck wagon could at once see, from the.width of the road, the condition of the wall, the nearness and depth of the water, the character of the teams and their drivers, &c., that he could not pass said wagon without great danger ; and if he also knew that he could avoid the necessity of passing it there by backing one of the wagons a short distance to a place where they could pass with ease, and that this could be done without difficulty or danger, he was guilty of negligence in attempting to pas§ where the accident occurred; and if the loss was occasioned by'such attempt, he cannot recover.
    Answer: “Refused. We leave for the jury to determine what, under the circumstances, a prudent man would have done, and also whether the plaintiff acted in the way a prudent man would have done.
    The verdict was for the plaintiff for $353.91.
    The defendant took a writ of error and assigned for error: — t
    1. The rejection of the offer of evidence.
    2, 3. The answers to defendant’s 2d and 3d points,
    4. The answer to the plaintiff’s 2d point.

      Wyly Buchanan, for plaintiff in error.
    The road laws do not require the townships in all cases to open roads to the full extent of the width to which they are laid out, but they may take into consideration the topographical features of the country, the difficulty of keeping the road in repair without unreasonable expense and the amount of travel: Angell on Highways, sects. 257, 260 ; Howard v. N. Bridgewater, 16 Pick. 100. As to the contributory negligence of plaintiff they cited Heileman v. N. Penna. Railroad Co., 13 Wright 63 ; Pitts. & Conn. Railroad Co. v. McClurg, 6 P. F. Smith 294; Glassey v. Hestonville Railroad Co., 7 P. F. Smith 172 ; Pennsylvania Railroad Co. v. Zebe, 9 Casey 318; Powell v. Pennsylvania Railroad Co., 8 Id. 414.

      A.. A.. Purman and O. A.. Black, for defendant in error.
    The regulation of highways is statutory and the statutes must be strictly complied with: Rapho Township v. Moore, 18 P. F. Smith 406; Shearman & Redf. on Damages, sect. 145. After a road is established the supervisors must open it and keep it repaired in a safe and skilful manner: Shearman & Redf. on Damages, sect. 364. Supervisors cannot change the route of an opened road in the smallest degree: McMurtrie v. Stewart, 9 Harris 322 ; Clark v. Commonwealth, 9 Casey 112; Morrow v. Commonwealth, 12 Wright 305 ; Calder v. Chapman, 8 Barr 522. Townships are liable for damages to party injured on account of a road being out of repair: 7 Barr 522. Want of funds, is not an excuse: 10 Harris 384; Winship v. Enfield, 42 N. H. 197; Angell on Highways, sect. 259. The knowledge of danger by an injured person will not relieve the township: Humphreys v. Armstrong Co., 6 P. F. Smith 204. It is no excuse that by careful driving the accident could have been avoided: L. Macungie Township v. Merkoffer, 21 P. F. Smith 276. Such a road as in this case was not as safe as could be made: Shearman & Redf. on Damages, sect. 391; Joliett v. Varley, 35 Ill. 58; Hyatt v. Rondout, 44 Barb. 385.
   Chief Justice Agnew

delivered the opinion of the court, June 5th 1876.

The duty of keeping public roads in repair is undoubted. But topographical features, population, and taxable ability necessarily govern their original construction. If a township build a single track, bridge over a small stream it must be kept in good repair with sufficient guards. But no one would pretend that a duty lay on the township in ordinary circumstances, to build one with double tracks and footwalks, to guard against collisions. A traveller who would wilfully enter on such a bridge with his carriage when another is crossing upon it with his wagon, could have no claim upon the township if injured by such a folly. Every one appreciates the greater safety of a double track, yet the duty so to build is one of imperfect obligation. In the more mountainous parts of the state, roads are constructed for miles along hillsides, often of solid rock, where it is impossible to open the road to a width greater than a single wagon track, except for turn-outs at intervals. Many of the roads in middle and western Pennsylvania climb high hills, from half a mile to a mile in length, to overcome the elevation, traversing a narrow roadway bounded often by a solid rock on one hand, and a steep declivity on the other. They who know the country, the mountains, gorges, streams, ravines, and chasms; those dizzy heights and profound depths, before which men pause and tremble; they who know the paucity and poverty of the population dwelling in these wilds, or in even more inhabited places, understand 'how vain it is to expect structures there, which population and wealth only, in narrow limits, can rear. The law has recognised this condition, and therefore provides for county bridges where townships are unequal to the cost. It recognises it also in the limitation of the power of taxation for roads to one per centum of the valuation of the taxable property. Another fact must be recognised : that roads, generally, in extent, are in inverse proportion to the population of the townships. The more sparse the population, the greater generally, is the extent of territory, and consequently the length of its roads. As population increases, municipal divisions diminish in size; and their roads diminish in length.

To apply the liability of a township for non-repair to a case of original construction, cannot be thought of. Yet this is the use made of Erie City v. Schwingle, 10 Harris 384, a case which states its own principle in the first sentence of the opinion. “ The principal question (says Black, C. J.) is whether a city corporation, bound by its charter to keep its streets in repair, is liable for an injury occasioned by its neglect to do so.” He cites six cases in the affirmative, not one of which is a case of original construction. This case is cited also to prove that a want of funds is not a defence. But the Chief Justice put the case on the ground that by the charter there was a power to exceed the limit, by the consent of a majority of the inhabitants, and their unwillingness to perform a duty was no excuse for its non-performance, and he said further: “ I will not say that damages can be recovered for an injury like this from a municipal corporation, which has no means at all of raising a corporate fund to repair its roads and bridges. That cannot be a legal duty which the law does not permit to be executed.” How then can that be said to be the duty of a poor township which would require the immense capital of a great railroad corporation to dig down steep hill-sides and blast miles of rock, in order to build a double track wagon-road ? One cent on the dollar of valuation is the limit of the power of the supervisors to tax the people for roads and bridges. The people of a township, unlike the inhabitants of a city, have no power to tax themselves. Judge Dillon notices this difference between corporations proper, such as cities and boroughs, and quasi corporations, such as counties, townships, school and road districts : Dil. on Mun. Corp. § 10, pp. 761, 762, 785, 786. In Pennsylvania the duty of road repair is statutory: Sect. 6, Act June 13th 1836; Rapho v. Moore, 18 P. F. Smith 404. Hence a liability for non-repair is recognised here : Dean v. Milford Township, 5 W. & S. 545. But in original construction of roads and bridges the townships must be governed by their means. To. open a hill-side road with a double track, where it is necessary to blast rocks and dig down steep banks, often would require more taxes than the township can impose, and leave nothing for repairs. We must not forget, when looking at the question of ability, the right of the citizens to work out their taxes, a duty indolently performed often at the highest rate of wages: Miller v. Gorman, 2 Wright 309 ; Childs v. Brown Tp., 4 Id. 332. I have made a calculation of the average taxes per mile of six of the most rural townships of my own county, which had in 1870 one-third more population than Greene county, and about one-fourth less territory, and find it would not exceed twenty dollars per mile of all the roads therein. In the present case $70 were expended on the road in question within less than one-quarter of a mile, and yet effecting but a small improvement.

What are the features of this road ? It is described by many witnesses as running through a long narrows, a high hill on one side, and a precipitous creek bank on the other. Its width was eight to twelve feet, in some places cut out of the solid rock. Its bed, chiefly of stone, was good, bounded by a high wall to hold up the creek side — proper to ride upon, but not to pass, and, therefore, turnouts or passing places were made at short intervals. To widen-the road at its narrowest point, to ten feet, required a cut in the hill-side twenty feet high, thus exhibiting the steepness of the hill, rising two feet in height to one in width' of excavation. These features display the character of the narrows, and the impossibility of making a double track at any feasible expense. Having, in travelling the Seventeenth Judicial District, seen such narrow roads, I readily recognise the diflieulty of making roads in such places, and where the topography of the country often forbids another passage. To say that a township is liable for the folly of one attempting to pass in such narrows, instead of stopping at a turnout, because it has not cut out a double-track road on one cent in the dollar of valuation, is sheer injustice.

The first and second assignments of error show how this case was tried in the court below. The defendant offered to prove that the road, at the place of the accident, could not have been made wide enough to admit of teams passing each other with ease and safety ; and that it could not have been protected on the side next the creek by the erection of a wall or otherwise without incurring an enormous expense, such as the township could not bear; this offered, in connection with the evidence already in, showing there were convenient places of passing, for the purpose of showing that the defendant was not guilty of negligence. This was objected to as irrelevant, and if proved, not a defence, and the objections were sustained by the court. The second point of the defendant raised the same question. It reads thus: “If the jury find that the road for the space of about seventy yards, embracing the place of the accident, by reason of the rocks on one side, and the creek on the other, could not have been widened or made secure on the creek side by a wall or otherwise, so as to admit of teams passing each other with ease and safety, without a vast amount of labor; that within short distances from the place where the accident occurred there were places in the road where teams could pass each other with ease and safety, and to which teams meeting at the place of accident could be backed without difficulty or risk; that the road in all respects, save width and protection on the creek side, was in good condition; and that the township was in no default in not securing a change of location, then there was no negligence on the part of the defendant, and the plaintiff cannot recover.” This point was refused. These assignments of error show that the court wholly ignored the question of original construction, treating it as out of the case, or else considering the township as bound to construct a double-track road under all circumstances. Hence we are prepared for the refusal of the defendant’s third point, and affirmance of the plaintiff’s second point, in which the court hold substantially that the township was primarily liable for damages and John was not guilty of contributory negligence in attempting to pass when, where, and as he did. But let Mr. John tell his own story. He met a boy in a one-horse buck wagon. He says: “The boy drove to the upper side of the road, as close as he could get and stopped. I drove up to the side of his wagon — told my wife to step out on the tail end of his wagon and then up the bank; she did so; I threw her the check lines; she said she could not drive; I told her to take one line in each hand, and I would tell her which line to draw; at that time I was at the end of the wagon, on the road; I took the horse of the boy by tbe bridle to see if I could not make it get up on tbe bank; it put one foot up, and then came back into the road; I told the boy to take his horse by the bridle and hold it, and I thought we could pass; I told my wife to move the horses slow, and if the wagon was about to slide over I would hold it; I spoke to my horses; they started; they moved forward until my hind hub caught his fore tire; I spoke to the horses and they stopped; I moved the wagon over about two inches, just so it would pass; I again spoke to the horses, and my hind hub was, just about passing his fore wheel when the mare slipped off into the creek. I left the wagon and ran around to the near horse to pull him square across the road to help the mare to rise again, but before I got to the bank the mare made a struggle and went over and dragged the near horse with her into the creek. The wagon turned upside down once, and the next time was in the water.”

A more foolish attempt to pass another on a narrows cannot well be conceived. The court ought to have received the evidence and submitted the question of fact to the jury whether the injuries arose from the fault of the township, in the condition of the road, or from the necessity, in the original construction, of making a single-track road at this place.

Judgment reversed and a venire facias de novo awarded.


text:
    Clearfield Independent School District.
    1. An order to commissioners to view for an independent school district must direct at least ten days’ special notice to be given to the school directors of the district from which the new one is to be taken.
    2. An order was for notice “ to the inhabitants, &c., and also special notice to the school directors of said township by twenty printed notices put up, &c., at least ten days,” &e. Reid to b.e insufficient.
    3. The commissioners reported that they gave “ the required notice by twenty printed notices put up, &c., ten days before the time of said meeting, and also notified the school directors, &e., of said time, place and purpose of meeting.” Reid, that the notice stated in the report was not sufficient.
    4. Wilkins School District, 20 P. P. Smith 108, a governing case.
    November 17th 1875.
    Before Agnew, O. J., Siiarswood, Williams, Merctjr, Gordon, Paxson and Woodward, JJ.
    Certiorari to the Quarter Sessions of Butler county: Of October and November Term 1875 No. 244.
    At the October Session 1878, of the court below, a number of the taxable inhabitants of Clearfied township petitioned the court for the appointment of commissioners to report upon the expediency of establishing an independent school district, within school district of Clearfied township.
    On the 1st of December 1873, commissioners were appointed. The order, after setting out the allegations and prayer of the petition, concludes: “ Whereupon the court appoints Henry Pillow, &c., commissioners, who, having given notice to the inhabitants of said township of Clearfield of the time and place of meeting, and also special notice to the school directors of said township, by twenty printed' notices,' put up in the most public places in said township, at least ten days before the time of their meeting,” * *■ * to report, &c.
    The commissioners reported :—
    * * * “ We gave the required notice by twenty printed notices, put up in the most public places in Clearfield township, of the time, place and purpose of meeting, ten days before said time of meeting ; and also notified the school directors of said Clearfield township, of said time, place and purpose of meeting. And that, in pursuance of said notice, we met,” &c.
    The commissioners further reported that in their opinion an independent school district, as designated in their report, was expedient, &c.
    The school directors filed exceptions to the report; one was : “ That the requisite notice was not given,” &c.
    On the 81st of July 1875, the exceptions were overruled and the report was confirmed.
    The exceptors removed the record to the Supreme Court by certiorari. In several specifications they assigned for error that due notice had not been given by the commissioners to the inhabitants of the school district of the time and place of the meeting of the commissioners to view the premises; and that they had not given “ ten days’ special notice ” of the meeting to the school directors of Clearfield school district.

      J. Greer, for certiorari,
    cited Acts of May 8th 1855, Pamph. L. 509; May 20th 1857, Pamph. L. 587, 1 Br. Purd. 237, et seq.; Wilkins School District, 20 P. F. Smith 108 ; Bethel Township, 1 Barr 97; Sewickley Township, 9 Casey 297.

      L. MeQuiston, contra.
   Judgment was entered in the Supreme Court, November 24th 1875,

Per Curiam.

In the case of Wilkins Township School District, 20 P. E. Smith 110, the subject of independent school districts was carefully examined and the legislation relating thereto referred to. One of the conclusions arrived at in that case was, “that in addition to the general public notice given by the commissioners by handbills or otherwise, at least ten days’ special notice should be given to the school directors of the district out of which it is sought to lay off an independent district.” The reasons are given and amply sustain the rule. In this case, the school directors of Clearfield township are the plaintiffs in error, and therefore the rule should be asserted in all its vigor. The provision for notice contained in the order to the commissioners in this case was a departure from the rule. The order, after reciting the names of the commissioners appointed, proceeds: “who having given notice to the inhabitants of said township of Clearfield of the time and place of meeting, and also special notice to the school directors of said township, by twenty printed notices put up in the most public places in said township, at least ten days before the time of their meeting," &c. Thus both the general and special notice is to be by handbills put up in public places. This is clearly not the special notice to the directors required by the rule established in thé case of Wilkins township. The notice set forth by the commissioners in their report does not supply the defect of the order, for it is not said when the notice was given. It might have been given on the morning of the day the commissioners met. The object of notice to the directors is that they, as the guardians of the interests of the schools, may examine into the subject, and come prepared to show to the commissioners how the proposed new district will affect the public interest. A proper exhibition of this might change thoroughly the views of the commissioners, and prevent a report or show its necessity, as the case might be. We think the proceeding is fatally defective in these respects, and must be set aside. The order and decree of the court establishing an independent district is reversed, and the proceedings set aside.


author: Mr. Justice Shakswood

text:
    Neal’s Executors versus Gilmore.
    1. The plaintiffs alleged that a decedent and her brother, whom she survived, had agreed that if plaintiffs would work for them, &c., till plaintiffs were of age, they would give them all they died possessed of; during the life of decedent she gave one twenty-five acres of land ; she devised the property she owned at her death to others than the plaintiffs. Held, in an action by plaintiffs to recover for their services, that the value of the land should be deducted.
    2. The land given was to be considered as part payment on the contract to give all that decedent should have at her death.
    3. In an ordinary contract of hiring, a present by the master to the servant is not to be deducted from his wages.
    4. The action being on a joint contract, was properly brought against the executor of the survivor. '
    5. An agreement by relatives on behalf of a child of tender years, on condition that he should stay till he was of age with them and give them the comfort of his society, is upon a sufficient consideration-.
    . 6. The relationship of first cousins is not such as of itself to rebut the presumption of an implied contract arising from services rendered and accepted.
    7. The performance of labor by one for another raises an implied assumpsit to compensate it, but the implication may be rebutted by proof of circumstances showing such relation as repels the idea of a contract.
    8. In actions for claims against the estates of decedents for services by members of their family, the courts should instruct the jury with great precision and positiveness as to the evidence necessary to constitute a contract.
    November 17th 1875.
    Before Agnbw, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Lawrence county: Of October and November Term 1875, No. 143.
    This was an action of assumpsit, brought August 29th 1871, by-Elias Gilmore and Richard Gilmore, against Alexander Anderson and William Duff, executors, &c., of Martha Neal, deceased.
    The original declaration was in the common counts; additional special counts were afterwards filed.
    The first of the special counts set out: “That on the 1st day of January, A. d. 1846, a special contract was entered into by and between the plaintiffs of the one part and the said Martha Neal of the other part, by which the said Martha Neal agreed that if a certain John Gilmore, father of the said plaintiffs, who were then infants, under the age of twenty-one years, would stay with the said Martha and her brother, one Adam Neal, who at the time were living together on a farm in said county, and work the said farm, getting for himself a certain share of the crop, and if the said children, the plaintiffs, would stay with them, the said Neals, until they were of age, she, the said Martha, and her brother would take and raise them as their own, give them a good common education, and at the death of the said Adam and the said Martha, each would give them all the property and estate of which they should die owning and possessed of; that the said John Gilmore continued to stay and work the place as aforesaid, and the said Elias and Richard continued to stay with the said Adam and Martha till they were of the age of twenty-one years respectively, and in all things performed their part of said contract; that the said Martha died on the 1st day of March, A. D. 1867, and though owning and possessed of property and estate, to wit: a farm of the value of five thousand dollars, did not at her death give the same nor any part thereof to the said plaintiffs, but the same to give, grant and devise to the said plaintiffs did refuse, to the damage of plaintiffs five thousand dollars.”
    The second count set out: “ That whereas on the 1st day of January, A.' D. 1846, the said Adam and Martha, in consideration of the matters and things aforesaid to be done and performed by the said John and plaintiffs, promised that they would give and devise all their property to the said plaintiffs at their death; that the said Adam died on the 1st day of March, A. d. 1858, intestate, leaving the said Martha his next of kin, and that the said Martha died on the 1st day of March 1867, without making any provision for conveying or devising her estate to the said plaintiffs; that she left estate, to wit: a certain farm, &e., to the damage of said plaintiffs five thousand dollars.”
    The case was tried February 10th 1875, before McJunkin, P. J.
    The plaintiffs offered in evidence the deposition of O. O. House.
    ' The defendants objected, “for the reason that the deposition relates to a joint contract made by Adam Neal and Martha Neal with plaintiffs, the suit being against Martha Neal’s executors alone, and having so declared ; and is also incompetent and irrelevant.”
    The evidence was admitted and a bill of exceptions sealed for the defendants.
    By the deposition, O. C. House testified: * * * “Elias Gilmore and 'Richard Gilmore are my half-brothers; Martha and Adam Neal were nephew and niece of my step-father. At my mother’s death my step-father took the two boys, Elias and Richard, to live with Martha and Adam Neal. My mother had requested me (it was her dying request) that I should look after the children, as their father was in the habit of drinking. The children were young; I think about two and six years old. I went out there a short time after the Neals had taken the children. They stated to me they had taken a great liking to the children (they had none of their own), and would like to keep them, and if their father, John Gilmore, would stay and work the place and behave himself, they would give him a certain share of the crop, and if they, the children, wTould stay until they were of age they would take them and raise them as their own. They would give them a good common education, and at their death would give them what they had. I informed Gilmore of the facts in the case, and made what I considered a fair, well-understood contract. Some few years afterward I got information that Gilmore was about to leave the Neals; found that Gilmore and the Neals were not getting on very well, as Gilmore was drinking. Gilmore complained that Martha Neal was cross; but Martha and Adam Neal wanted to keep the two boys, Elias and Richard, if the old man did go away. I told Gilmore, my step-father, that if he wanted to go away he should go, but should not take the two boys, as Adam and Martha Neal were living up to their agreement. I got the parties all together, and it was then agreed that as I would not let the children go with him, he would stay. He also agreed he would quit spreeing. I came home and did not see any of them for several years. I got uneasy about them and I went out to the Neals. I met a man just before I got to the house. I never heard his name, and do not know who he is. He came to me and asked me if my name was not House. I told him it was. He told me he must go back to the house with me, as Adam Neal was dying; that Neal was under the impression that I had gone off or was dead ; that he had been talking about me and wanted to see me. He stated that Neal said he wanted or had been making some change in the agreement with me, and wanted to see me ; that he wanted to make me an heir equal to the children. We went to the house ; Adam turned his face to me and spoke to me and said he was very sorry I had not got there sooner. He said he was dying and could not talk, and in fifteen or twenty minutes he was. dead. There was some excitement, or seemed to be, among the friends in regard to my presence, so I left the next day and' came home. Martha Neal told me that J. Gilmore had been doing better and keeping his promise. I never knew there had been any change in my agreement with the Neals, only what the stranger told me, until I heard of the death and will of Martha Neal.' I was very much surprised when I heard it.”
    The other evidence was to the effect that the two plaintiffs went to the Neals, with John- Gilmore, their father, who worked the farm, consisting of about 140 acres, for a share of the crops. Gilmore’s habits were intemperate. About nine or ten years afterwards. Adam Neal died intestate and Martha inherited all his estate. Some years before Elias Gilmore arrived at age, he went, with the consent of Martha Neal, to learn a trade. He afterwards, in 1861, also with the consent of Martha Neal, went into the army and remained there three years. Richard Gilmore remained on the farm until he was of age; the decedent then conveyed to him 25 acres of land, part of the farm; he erected a house and lived there.
    On the 5th of February 1868, a few days before her death, Martha Neal made a will ordering her property to be sold, giving $100 to Elias Gilmore, and to Richard Gilmore a bed, &c., of small value.
    The defendant’s first point, which was negatived, was:—
    . The plaintiffs having brought this action against the legal representatives of Martha Neal, and declared upon a contract with her alone, and not upon a joint contract by her and Adam Neal, and the contract offered in evidence being a joint contract by Martha and Adam Neal, it does not sustain the action or declaration, and therefore plaintiffs cannot recover.
    The court also charged:—
    1. “ That if Elias Gilmore was about learning a trade and serving in the army by consent of Martha Neal, that that amount of time should not be deducted from the whole value of the services up to the time he arrived at the age of twenty-one years.”
    2. “ That the 25 acres of the farm given by Martha Neal to Richard Gilmore, (in her lifetime) should not be taken into account or deducted from the value of the services rendered.”
    The verdict was for the plaintiffs for $2500.
    The defendants took a writ of error and assigned for error:—
    1, 2. The parts of the charge above given.

      3. Refusing defendant’s first point.
    4. Admitting the deposition of O. O. House.

      O. L. Jachson and JR. B. McQornb, for plaintiffs in error,
    cited Graham v. Graham, 10 Casey 472.

      -JDana, for defendants in error.-
    The measure of damages is the value of the services : Hertzog v. Hertzog, 10 Casey 418 ; M’Nair v. Compton, 11 Id. 23; Bender v. Bender, 1 Wright 419.
   Mr. Justice Shakswood

delivered the opinion of the court, Janjuary 6th 1876.

This was an action instituted in the court below by the plaintiffs to recover- upon an alleged contract by Adam and Martha Neal in their lifetime, that if the plaintiffs would stay with them until they were respectively twenty-one years of age, Adam and Martha Neal would “ at their death give them all they had.”. Assuming, on the authority of Graham v. Graham’s Ex’rs, 10 Casey 475, that the measure of damages, in an action for the breach of such a contract, is the value of the services rendered, it was submitted to the jury to find a verdict for the value of such services, which they accordingly did. We will consider the assignments of error in their order.

The first assignment is that the court erred in instructing the jury “ that if Elias Gilmore (one of the plaintiffs) was absent learning a trade and serving in the army by consent of Martha Neal, that that amount of time should not be deducted from the whole value of the services up to the time he arrived at the age of twenty-one years.” There was no error in this instruction properly understood. The learned judge certainly did not mean to say that the plaintiffs were entitled to recover for the time during which either of them was absent by permission, but that such absence should not work a forfeiture of any part of their wages while they were rendering service. He instructed the jury that they were entitled to recover the whole value of their actual services — not for time while they were not rendering service.

The second error assigned is that the court charged the jury “ that the twenty-five acres of the farm given by Martha Neal to Richard Gilmore (in her lifetime) should not be taken into account or deducted from the value of the services rendered.” It is undoubtedly true that in an ordinary contract of hiring, a present made by the master to his servant is not to be allowed or deducted from his wages. But here the plaintiffs set up and relied upon a special promise to give them all that the Neals had at their death. It would be strange if, in a claim for the value of the services under such a contract, the defendants could not show the value of what the decedents had actually given in their lifetime in part performance of it. It is sticking in the bark to say that the contract was specific to give them what they had at their death. If during their lives they gave as much as the services were worth, it would be an anomalous result to allow them still to recover the full value of their services besides. The presumption, in the absence of evidence, was that the gift was intended as pro tanto a payment on account — as it certainly would have been if the law had permitted a recovery according to the terms of the contract of the whole estate of Adam and Martha Neal at their death. We think there was error in this instruction.

The third assignment is based upon the refusal of the court to affirm the first point of the defendants below. The point assumed that the plaintiffs had declared upon a contract with Martha Neal alone and not upon a joint contract by her and Adam Neal. But, although the first count of the amended declaration is as assumed in the point, the second count is on a joint contract, and the action was against the executors of the survivor of the two joint contractors. We think therefore that it would have been error to have affirmed this point.

The last assignment is that the court erred in admitting the deposition of Oliver O. House. The first objection was that it related to a joint contract made by Adam Neal and Martha Neal with plaintiffs, the suit being against Martha Neal’s executors alone, and the plaintiffs having so declared. But, as we have seen in' examining the third assignment, this objection is founded on an error of fact. The second count of the amended declaration is upon a joint contract, and the action is properly brought against the executors of the survivor. Another objection to the deposition was, that it was incompetent and irrelevant. But the witness was surely competent, and the evidence he gave competent and relevant. If for no other reason, it was pertinent to the issue, because it showed the relation in which the parties stood to each other, and the circumstances under which the plaintiffs went to live with Adam and Martha Neal. If, as is probable, the defendants below meant to object that the testimony of Oliver O. House was not sufficient of itself to be submitted to the jury as evidence of a contract, the objection should have been, not to the admission of the deposition, but to its effect when admitted. The court might have been asked to charge the jury upon the effect of it. This, however, was not done. As the case goes back for another trial, we think it proper to express an opinion upon this point, although not raised on this record. Adam and Martha Neal were the first cousins of the plaintiffs. The mother of the plaintiffs having died and their father being intemperate, Adam and Martha Neal took the two boys, Elias and Richard Gilmore, to live with them. They had no children of their own. The boys were then of the ages of two and six years, respectively. A short time after the witness House — a half-brother of the plaintiffs — went to see them. He says the Neals “ stated to me they had taken a great liking to the children, and would like to keep them, and if their father, John Gilmore, would stay and work the place and behave himself, they would give him a certain share of the crop, and if they, the children, would stay until they were of age, they would take them and raise them as their own. They would give them a good common education, and at their death would give them what they had.” This was evidently a mere declaration of the intention of the Neals towards the children. It has none of the marks of a contract. There was no stipulation that the boys should render them service of any kind. They would raise them as their own. It was a contract all on one side. It is true that if you assume that there was a contract, the mere agreement that the boys should stay with them and afford them the comfort of their society would be a sufficient consideration. But in determining whether there was a contract at all, the fact that 'all the important benefits were on one side is most significant. These children were of tender years; they were to be nurtured and watched; fed, clothed, and lodged; nursed and provided with medical attendance in sickness; sent to school, and launched into the business of life when they attained majority. The Neals declared that they would stand to these children in the relation of parents. They did so faithfully. It would have been a cruel thing if, without sufficient cause, they had repudiated their promise and turned them out of doors. We are compelled to think, however, they could have done so. Their alleged contract was a mere declaration of their intention at that time. It does not mend the matter that the witness added : “ I informed Gilmore of the facts in the ease and made what I considered a fair, well-understood contract.” With whom and by whose authority did he make this contract ? He does not say that the Neals gave him authority to contract with the father, and from his own statement they made no contract with him. If there was no contract such as was set up, there was then a preliminary question, which ought to have been submitted to the jury, whether the plaintiffs were living with their cousins upon an implied contract to be paid for their services. What the character and extent of the services were we are not informed by the paper-books. It is true that their relation as first cousins was not such as of itself to 'rebut the legal presumption of an implied contract arising from services rendered and accepted. But if the parties lived together with the understanding that the Neals assumed the place and duty of parents — if the boys lived with them as their children and members of the family — the jury ought to have been instructed that the plaintiffs could not recover. Nothing is better settled than that while the performance of labor by one for another raises an implied assumpsit to compensate it, yet this implication may be rebutted by proof of circumstances showing such a relation between the parties as repels the idea of contract: Urie v. Johnston, 3 P. R. 212; Swires v. Parsons, 5 W. & S. 357; Defrance v. Austin, 9 Barr 309. In cases of this character — claims against the estates of decedents for services rendered by members of their family — it is important that the reins should be held by the courts with a firm and steady hand. There should be great precision and positiveness in the instructions given to the jury, who are too apt to be carried away by their sympathy for claimants who have been disappointed in their perhaps just and reasonable expectations .from the gratitude or affection of decedents.

Judgment reversed and a venire facias de novo awarded.


text:
    Sayers’s Appeal.
    1. An intestate died seised oí land, leaving a widow and two minor children; an order to sell the minors’ interest was awarded, under the Act of March 29th 1832, sect. 3, on the application of the guardian, because of its dilapidation, &c.: one of the minors died before the sale, which was con-fix-med; the other minor marx-ied and died in her minority, leaving her husband surviving, but no children. Held, that the proceeds of sale both of her original interest and her deceased brother’s passed to the husband as personal estate and not to her collatex-al heix-s.
    2. If land be sold for a specific purpose, the surplus money, as between heirs and next of kin, is to be considered as land; but after it has; vested in the person entitled it is to be treated as money, and on his death subsequently passes as personal estate.
    3. Pennell’s Appeal, 8 Harris 515, adopted.
    November 17th 1875.
    Before Agnew, O. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Orphans’ Court of Greene county: No. 295 of October and November Term 1874.
    The appeal in this case was from the decree of the Orphans’ Court distributing the balance in the hands of John S. Knox, guardian of Mary C. Lindsey, late Sayers, a minor child of E. S. Sayers, deceased; the ward having died in her minority.
    The father died on the 19th of September 1865, intestate, leaving to survive him a widow and two children: Mary, then aged about fourteen years, and a son, Ephraim, a few months old. On the 26th of the same month, W. T. E. Webb was appointed guardian of the minor children.
    On the 25th of December 1865, the guardian petitioned the court, setting forth that E. S. Sayers had died seised of a tavern in Waynesburg, a tract of eighty acres and a piece of seven acres of land in Franklin township ; and some other pieces of real estate, and also an interest in other lands; the petition further represented that “ said real estate is unprofitable to his said wards and in such a state of dilapidation and decay that it would be to the interest of his said wards to have the same sold.” He therefore prayed for an order to sell the real estate; an order of sale was awarded. Shortly after this and before the day of the sale, Ephraim died. On the 81st of March 1866, the guardian reported that he had sold the tavern for $3532, “ the widow’s dower to be released,” one-third of the purchase-money to be paid on the confirmation of the sale, the other two-thirds to be paid in two annual payments; also the two parcels of land in Franklin township, for $2569, “ the widow’s dower to be released and the purchasers to receive a title to the whole estate, as well the interest of the deceased child as the widow and surviving child,” the payments to be as those of the tavern; that other parts of real estate were sold for $692, the widow’s dower to remain in it, one-half of two-thirds to paid in one year, and the other in two years, &c. The sale was confirmed on the same day.
    The peculiar arrangements as to the title were, in consequence of a parol agreement between the widow and the guardian, after the’death of the son, by which not only the widow’s dower, but her interest derived from her son, should be released; and in consideration, it was agreed, that the widow was to have absolutely, certain other parts of the real estate of her husband, but as the guardian could not make her a deed, she agreed to wait until the daughter was of age, when she would execute a deed to her mother. After the confirmation of the sale, the widow executed to the purchasers a release of her entire interest.
    Subsequently, Webb on his own application was discharged from his guardianship, and John S. Knox appointed in his place.
    At December Term 1868, Webb settled his account, charging himself with the entire proceeds of the sale, and moneys arising from other sources, and showed in his hands a balance, $4531.90. This balance was paid to Knox. Mary afterwards married J. B. Lindsey, and died in the spring of 1870, intestate, leaving no children, but leaving her husband, to whom administration of her estate was granted. Knox, at June Term 1870, settled the account of his guardianship, showing in his hands a balance of $5062.62, which was the subject of the distribution under consideration.
    The auditor, C. A. Black, Esq., after reporting the foregoing facts, said:—
    * * * “ The widow of E. Sealy Sayers, deceased, having made deeds to the purchaser of the real estate sold by the guardian according to the arrangement already spoken of, and suffered the proceeds to pass into the hands of the guardian as the property of his ward without objection, can have no claim upon the fund for distribution.
    “ The claimants are confined to James B. Lindsey, the husband of Mary C., who claims not only as administrator of her estate, but absolutely as the heir at law, and the brothers and sisters of E. Sealy Sayers, the father of Mai-y C., from whom the real estate descended. To which of these claimants the fund belongs, depends entirely perhaps upon its character at the death of Mrs. Lindsey.
    “It is insisted by those who claim adversely to the husband, that although the sale by the guardian, Mr. Webb, was an actual conversion of the real estate into money, still its character as real estate for the purpose of descent was preserved, and retained this character after the death of Mrs. Lindsey, her husband can have but a life-estate in the fund, and at his death it will belong to them absolutely as next of kin. In support of this view, it is urged that the policy of law is hostile to the conversion of the real estate of minors into money, and that the Act of April 13th 1853, commonly known as the Price Law, being so beneficial and remedial in its purposes, that it should be held to be exclusive in its operation, and embrace all sales made under order of the Orphans’ Court, where a fund is left for distribution.
    “This view, however, your auditor cannot adopt. The law may be adverse to the conversion of the real estate of minors into money, but it is rather to save the estate of the minor from loss than to protect any contingent interest that might be affected by a conversion, and at any rate the argument can have but little force after the conversion has been effected, and we can see nothing in the act itself to warrant the general application contended for. * * *
    “ The petition for the order of sale sets forth in the precise language of the third clause of the third section of the revised Act of March 29th 1832, and of its partial re-enactments by the first section of the Act of June 16th 1836, the reasons and purposes of the sale. The reason given is the dilapidation of the property, and the specific object “the interest of the minor.” In view of the provisions of the Act of April 13th 1853, so minutely enumerated as to the petition, the order, the sale, the return and confirmation, and the acknowledgment of the deed, were observed by the guardian, and it • is safe to conclude, that the proceedings" were not under that act, but were under the prior law before referred to. * * *
    “The act.under which this sale took place recognises an absolute conversion, the object being money, whether raised by sale or mortgage, but makes no special provision for the transmission of any part of it. * * *
    “ Believing this to be the general' rule governing the distribution of the surplus arising from sales in the Orphans’ Court, under circumstances like the present, and that the Act of 1853 has not changed the course of descent, except as to sales made expressly under its provisions, your auditor decides, and so reports, that the fund for distribution * * * is to be paid to James B. Lindsey, not only as administrator upon the estate of Mary C. Lindsey, his wife, but as absolute heir at law.”
    After exception by the brothers and sisters of the father of Mary C. Lindsey, the Orphans’ Court, Gilmore, P. J., confirmed the report and decreed distribution accordingly.
    The brothers and sisters of the father appealed to the Supreme Court and assigned for error, the decree of distribution.

      E. M. Sayers, appellant, p. p.
    The theory of our intestate laws is that estates shall not cross over from the family who acquired them to the family who had no part in their acquisition : Act of April 8th 1833, sect. 9, Pamph. L. 318, 1 Br. Purd. 808, pl. 27 ; Maffit v. Clark, 6 W. & S. 258; Grenawalt’s Appeal, 1 Wright 95; Lloyd v. Hart, 2 Barr 473; Tilghman’s Estate, 5 Wharton 65; Dalzell on Conversion 92; Grider v. McClay, 11 S. & R. 224; Commonwealth v. Pool, 6 Watts 32; Biggert’s Estate, 8 Harris 17 ; Clepper v. Livergood, 5 Watts 113; Hays’s Appeal, 2 P. F. Smith 450.

      O. A. Black (with whom were Wyly Buchanan), for appellee, cited :
    Holmes’s Appeal, 3 P. F. Smith 339; Grider v. McClay, 11 S. & R. 224; Pennnell’s Appeal, 8 Harris 515; Dyne v. Cornell, 4 Barr 359 ; Hays’s Appeal, 2 P. F. Smith 449; Large’s Appeal, 4 Id. 383.
   Judgment was entered in the Supreme Court November 24th 1875,

Per Curiam.

This case is governed by Pennell’s Appeal, 8 Harris515. Lewis, J., states the principle thus: “The gen eral rule is that if land be sold for a specific purpose, the surplus money shall, as between the heirs and next of kin, be considered as land, so as to vest in the persons who would have been entitled to it had it remained unconverted. But after it has so vested in the persons entitled, it is to be treated as money in his hands, and, in case of his subsequent death, goes to his personal representatives as personal estate. It cannot retain its original character for ever.” The previous cases are referred to and commented on in the opinion. The cases referred to by the appellants are not exceptions or contradictions, but were decided on the fact that there had not been conversion before the interests sustained had vested.

Deeree aflirmed with costs and the appeal dismissed.


text:
    Luce et al. versus Harris.
    1. A devise was “ to my son Jacob and Eliza his wife, the tract of land * * * during their natural life * * * I order that my son Jacob and wife shall not sell or dispose of their life-interest in, &c., to any person, and further that the land given to Jacob and wife shall be equally divided among their children at their death. It is my wish the farm be owned by the boy, he paying to his sisters proper legacies when he and they shall become of age.” At the date of the will and the testator’s death Jacob was married to a second wife, named Eliza; he had two daughters of his first marriage who were of tender years at his second marriage; they were treated by him and his wife without any distinction from her own children, consisting of one son and four daughters. By subsequent clauses in his will the testator made provision for all his other children and grandchildren. Held, that the daughters of Jacob’s first wife took under the devise to the children of Jacob and his wife.
    2. Under the circumstances, the two daughters being of his own blood, were children of Jacob and Eliza, in the ordinary meaning of the term.
    3. The direction that u the boy” was to pay “ proper legacies” to his sisters included those of his half-blood.
    November 18th 1875.
    Before Agnew, O. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Fayette county: Of October and November Term 1875, No. 292.
    This was an action of ejectment, brought by Elizabeth Luce and the minor children of W. W. Luce, deceased, by their guardian, David Luce, against James E. Harris.
    The writ was issued January 15th 1874, for two undivided seventh parts of two tracts of land in Perry township, containing together about 115 acres.
    The question in this case arose under the will of Jacob Harris, deceased,'who died December 25th 1852, seised of the real estate above mentioned.
    The testator left eight children surviving him, one of whom was Jacob Harris, Jr. There also survived him the widows and children of two sons, Isaac and Benjamin, who had died in his lifetime ; Jacob Harris, Jr., had been twice married; his first wife was dead at the date of the testator’s will, leaving two daughters, one afterwards Elizabeth Luce, one of the plaintiffs, and the other ‘afterwards Jemima Wilson ; after the death of Jacob Harris Jr.’s first wife, he married a second wife, Eliza; of this marriage he had one son and four daughters, James E. Harris, the defendant, being the son. Jacob Harris, Jr., died in July 1857, leaving his widow and these seven children to survive him ; his widow died in 1872.
    ‘ At his second marriage the two daughters of his first marriage were of tender age; they continued to reside in their father’s house and were treated by himself and his second wife, Eliza, without any distinction between them and her own children ; she died in July 1872. Elizabeth and Jemima, the daughters of the first marriage, were married after the date of the will.

      The testator’s will was dated November 15th 1852, and proved December 30th of the- same year. He gave to his wife, for life, a tract of land w’hich he designated ; also, an annuity of $30, and some personal chattels.
    The next clause, that under which the controversy in this case arises, was as follows:—
    “ Fifth. I give and bequeath unto my son Jacob Harris, and Eliza his wife, the tract of land on which they now reside, during their natural lifetime; it containing one hundred acres, more or less; and further, I give unto my son Jacob and wife one-third of the farm on which I now reside, which they shall come into possession of at my decease; and further, I order that my son Jacob and his wife shall not sell or dispose of their life-interest in the foregoing devises to any person or persons; and further, that the land given to Jacob and wife shall be equally divided among their children at their death. It is my wish that the farm be owned by the boy, he paying his sisters proper legacies when he and them shall become of age.”
    He then gave a tract of land to the widow of his son Benjamin for life; after her death the land to go to two sons of his son Benjamin, they paying to their sisters sums of money specified ; he gave to these two grandsons also one-third of the “homestead farm,” and to the testator’s son James, the remaining third; the devisees of the homestead farm, including Jacob, to pay to testator’s daughters $500 each ; he gave to one of the daughters a note he held against her husband. He gave to the widow of his son Isaac $100, and $100 to each of her three sons; all his furniture at his wife’s death to go to his heirs. He directed what he had given to one of his daughters to go to her children at her death.
    By these bequests he made some provision for all his children and grandchildren, except Eliza and Jemima, unless they be included in devise to Jacob and his wife Eliza and their children. The question in the case is, whether they are intended to be included amongst the children of “Jacob and Eliza his wife.”
    On the 8th of April 1868, Jemima Wilson conveyed her interest in the land in dispute to W. W. Luce; he afterwards died, leaving his widow and children, the minor plaintiffs in this suit, to survive him.
    At the March Term 1872 of the Orphans’ Court, James F. Harris, the only son of Jacob Harris, Jr., petitioned the Orphans’ Court, setting out the devise, &c., that Jacob and Eliza his wife accepted them ; the death of the testator, “leaving to survive him Eliza his widow, ‘and five children, to wit, your petitioner, who is the only son, Harriet Ann, Frances, Maggie and Ellen, they being children of the said Jacob and Eliza Harris;’ that the widow died leaving the petitioner, ‘her only son,’ and the daughters, naming them. The prayer was for an inquest to make partition of the land devised.
    An inquest was awarded and partition had; and, under appropriate proceedings, the land was adjudged to James E. Harris, the petitioner.
    The two daughters, Elizabeth and Jemima, are not mentioned nor referred to in the petition or in any of the proceedings in partition.
    The case was tried September 25th 1875, before Stowe, J., of the Court of Common Pleas of the Fifth Judicial District. The foregoing facts appeared on the trial.
    The court charged: “ We are of the opinion that, under the will, plaintiffs are not entitled to recover, and therefore your verdict will be for defendant.”
    The verdict was for the defendant.
    The plaintiffs took a writ of error and assigned for error the charge of the court.

      W. 33. Playford (with whom was J. Darby), for plaintiffs in error.
    The whole will and the circumstances of the testator’s family are to be taken into consideration in construing it: Urie v. Irvine, 9 Harris 310. An heir at law can be disinherited only by express devise or necessary implication: Bender v. Dietrick, 7 W. & S. 284. Gifts to brothers and sisters include half-brothers and sisters : Hawkins on Wills 86.

      O. 32. Boyle (with whom was Gr. W. K. Minor), for defendant in error.
    A gift to children does not extend to those by affinity : 2 Jarman on Wills 73; Co. Litt. 284, a; Hawkins on Wills 112. “ Children,” does not, unless the intention be clear, include grandchildren : Dickinson v. Lee, 4 Watts 82; Hallowell v. Phipps, 2 Whart. 376; Gross’s Estate, 10 Barr 360 ; Barbara Herr’s Estate, 4 Casey 467 ; Horwitz v. Norris, 13 Wright 213.
   Mr. Justice Paxson

delivered the opinion of the court, January 6th 1876.

That portion of the will of Jacob Harris under which the contention in this case arises, is-in the following words : “ I give and bequeath unto my son, Jacob Harris, and Eliza, his wife, the tract of land on which they now reside, during their natural lifetime, it containing one hundred acres, more or less ; and further, I give unto my son Jacob and wife, one-third of the farm on which I now reside, which they shall come into possession of at my death ; and further, I order that my son Jacob and his wife shall not sell or dispose of their life-interest in the foregoing devises to any person or persons; and further, that the land given to Jacob and wife shall be equally divided among their children at their death. It is my wish the farm be owned by the boy, he paying his sisters proper legacies when he and they shall become of age.” Jacob Harris, Jr., the devisee above named, died in July 1857, leaving surviving him a widow and seven children, two girls by a former marriage, and four girls and one son by his second wife, Eliza. The single question raised by the record is, whether the children of Jacob Harris, the devisee, by his first wife, are entitled to take under the said devise. If not, then they are disinherited, for there is.no other provision for them under the will. It is a maxim, which applies here as well as in England, that an heir at law can only be disinherited by express devise or necessary implication, and that implication has been defined to be such a strong probability, that an intention to the contrary cannot be supposed: Bender v. Dietrick, 7 W. & S. 284. There is nothing on the face of this will to indicate any intention on the part of the testator to disinherit the children of his son Jacob by his first wife; nor is there anything to show that said children were not proper objects of the testator’s bounty. He appears to have made provision for all of his other children and grandchildren as well as for his wife. Sixteen years before the testator made his will, his son Jacob’s first wife died, leaving two daughters, then young children. Shortly after his son married a second wife, and had by her four daughters and one son. The second wife took the children of her husband by his first wife and brought them up as her own. It is probable the testator, when he executed his will, had lost sight of the fact that the two children by the first marriage were not children of the body of Eliza. They were nevertheless of his own blood and of the blood of his son. They were children of Jacob and Eliza in the ordinary meaning of the term. They were known and reputed as such.

It has been held in England, that natural children, having acquired the reputation of being the children of a particular person prior-to the date of the will, are capable of taking under the description of “children Wilkinson v. Adams, 1 Ves. & B. 422. When the testator provides that “the land given to Jacob and wife shall be equally divided among their children at their death,” he evidently intended to include the children of Jacob by his first wife, who were also the step-children of his second wife. In order to confine the generality of the words “ their children,” to those born of the second marriage and thus disinherit those born of the first marriage, such intention must clearly appear from the face of the will. It must be manifest by its express terms, or by necessary implication. Neither exists in this case. That he intended to provide for the children of the first marriage further appears from the provision in thé will, that “ it is my wish that the farm be owned by the boy, he paying his sisters proper legacies when he and them shall become of age.” The settled rule is, that a gift to brothers or sisters includes the brothers or sisters of half-blood; Hawkins on Wills 86. There is nothing in the language of this clause to exclude the half-sisters, who were the children of the first marriage.

In the absence of the contrary intention appearing upon the face of the will, we think the devise to Jacob and wife and “ their children,” includes children who were of the blood of Jacob, and who were step-children of his wife.

Judgment reversed, and a venire facias de novo awarded.