author: Mr. Justice Mercur

text:
    Young’s Appeal.
    Testator devised “ the residue of my estate, real, personal and mixed, to my beloved wife, for and during her life; and further, I will that at her' decease suoh moneys or property as she may possess be equally divided between her relations and mine, or such of them as she may believe most worthy.” Testator’s wife survived him, and died, leaving a will, in which she directed the estate to be divided equally between her late husband’s relations and her own, one-half to go to six of her relations, share and share alike, and the other half to nineteen of her husband’s relations, in proportions named in her will. The court below hold that the wife had power to appoint the beneficiaries under the will of her husband, but that she should have distributed the funds among the appointees per capita. Held (reversing the court below), that the division of the property made by the wife was in accordance with the true intent of the testator.
    November 9th. 1876.
    Before Agnew, C. J., Sharswood, Gordon, Paxson and Woodward, JJ. Williams and Mercur, JJ., absent.
    Appeal from the decree of the Orphans’ Court of Allegheny county, No. 132: Of October and November Term 1876.
    This was the appeal of Mary Young from the decree of the Orphans’ Court of Allegheny county, distributing the balance in the hands of Graham Scott, the executor under the wills of Andrew Beggs, deceased, and his wife, Alcy Beggs, deceased.
    ■ Andrew Beggs died in 1853, leaving a will which contained the following clause:—
    “ I will the residue of my estate, real, personal and mixed, to my beloved wife, Alcy, for and during her life; and, further, I will that at her decease, such moneys or property as she may possess be equally divided between her relations and mine, or such of them as she may believe most worthy.”
    Graham Scott and Alcy Beggs, the wife of testator, were named as executor and executrix in this will.
    Alcy Beggs survived her husband and died twenty-two years after his death, leaving a will, which, after a recital of the foregoing provision of her deceased husband’s will, gave the following directions :—
    “ I will, devise and bequeath whatever may remain of my estate, or that willed me by my late husband, undisposed of at my decease, real, personal or mixed, wherever found, be converted into money as soon as convenient after my death, and after paying my debts and funeral expenses, as before mentioned, and the legacies mentioned in my late husband’s will, that whatsoever may remain be divided equally between my late husband’s relations and mine, in the following manner, viz. : One half I give and bequeath unto the children of my two sisters, Delilah Cracraft and Rachael Hull, viz. : Mary Young, Zedock Cracraft, Rachael Dunn and Hannah Young, children of Delilah Cracraft, and Maria Hull and Delilah Hull, children of Rachael Hull, each share and share alike, if they are all alive and can be found at my decease, and if they are dead or sbmüd die before me, then to their children, if they have any, but if they have none, to be divided equally between the others. The other half I give and bequeath unto the relations of my late husband, to be divided among them as follows, viz.: To my brother-in-law, Thomas Beggs, one-tenth. To my sister-in-law, Mary Ann Wagoner, one-tentli. To Clara, daughter of Joseph Beggs, deceased, one-tenth. To Maria, daughter of Joseph Beggs, deceased, one-fifteenth. To Ann Eliza, daughter of Joseph Beggs, deceased, one-fifteenth. To John, son of Joseph Beggs, deceased, one-thirtieth. To Rosanna Brown (my niece), one-thirtieth. To John Brown (my nephew), one-thirtieth. To Andrew Brown (my nephew), one-thirtieth. To my nephew, Andrew Beggs, one-tenth. To my nephew, R. J. Beggs, one-fifteenth. To my nephew, Reuben Beggs, one-fifteenth. To Martha, widow of my nephew, Basle W. Beggs, one-fifteenth. To Lewis Leon, Leonora, Mary, Sarah, Alcy and Margaret, children of my nephew, Andrew Beggs, one-tenth equally divided between them. To my grand-nephew, Andrew, son of John Beggs, one-thirtieth. Should any of the above die before me, their share shall go to their children or next of kin ; and, in order to enable my executors hereinafter named, to carry out the provisions of this will, I do hereby authorize and empower them to sell at public or private sale, as they may deem for the best advantage, all my property belonging to my husband’s estate, wherever found, real, personal or mixed.”
    Graham Scott, who was executor under the will of both decedents, and Andrew Young, who was executor under the will of Alcy Beggs, applied to the Orphans’ Court for the sale of the real estate of decedents for the purpose of distribution under their wills, and upon the court ruling that Mrs. Beggs, in directing a conversion of the real estate, had not exceeded her authority, and that her executors had power to sell without further directions, the real estate was sold and Graham Scott subsequently filed his first account, admitting a balance of $6366.21, which constituted the fund for distribution in the case.
    ■ In making distribution of this balance the Orphans’ Court decided, that the fund should be paid in accordance with a schedule attached, which gave to each of the twenty-one parties named in the will of Alcy Beggs $244.01, being an equal share of the whole balance.
    In an opinion the court said: “ That Alcy Beggs was invested with a power of selection by the will of Andrew Beggs, deceased, is beyond question. She was directed to divide the estate of her testator amongst £ such’ of his and her £ relations’ as she might deem most worthy. The use of the word £ such’ implied a power of selection: Huntley v. Gregson, 1 Term R. 432; Spring v. Biles, 2d (note). It follows that the beneficiaries named in the will of Alcy Beggs, deceased, were well appointed, whether within or without the statute of distribution. In what shares or proportions are these beneficiaries to stand ? Andrew Beggs directed that his estate should ‘ be equally divided’ between ‘ such of his wife’s and his relations as she might deem most worthy.’ Whatever of difficulty there may be, appears on the face of the will, and may be solved by the application of the ordinary rules of construction in such cases: Best v. Hammond, 5 P. F. Smith 412. How then shall division be made ? The authorities agree that where a testator designates the objects of his bequest or devise by their relationship to living ancestors, such legatees or devisees take not by representation, but immediately of the testator and per capita. The reference to living ancestors is merely descriptive of the objects of bounty, and excludes the per stirpes rule: Witmer v. Ebersole, 5 Barr 458.
    “ The line of argument adopted in the case of McNeilledge v. Galbraith, 8 S. & R. 43, is peculiarly appropriate to the present case. There as here the testator had given his estate to his wife for life, and directed that at her decease said estate should £ be divided between her and my poor relations equally.’ The same question was raised and discussed there as here with respect to the proper mode of distribution. The bequest was construed as though the word £ poor’ had not been used, so that the two cases, so far as the question of distribution is concerned, are in quatuor pedibus with each other.
    ££ So far, therefore, as the distribution made by Mrs. Beggs affects the estate of Andrew Beggs, deceased, she has exceeded her powers. The division should have been made equally between the appointees. With this exception the power with which Mrs. Beggs was invested was well executed. It is well settled that the execution of a power may be good as to part: Hegarty’s Appeal, 25 P. F. Smith 503 ; Bristow v. Warde, 2 Vesey 336. And the court will correct that in which the donee has failed.
    “ The fund in hands of the accountant, being proceeds of the sale of the real estate of Andrew Beggs, deceased, will therefore be distributed amongst the appointees named in the will of Alcy Beggs, deceased, per capita.”

    From this decision Mary Young appealed and assigned for error this decree of the court.

      J. C. Young and J. M. Stoner, for appellant.
    The wife of decedent executed the power given in her husband’s will by dividing the fund into moieties, and giving one moiety to each side of the house, and this interpretation of her husband’s will should prevail.
    It may be admitted that when a testator designates the objects of his bounty by their relationship to a living ancestor, or where he directs it to be equally divided between them, he is in general held to mean that they shall take per capita and not per stirpes. But this mode of construction will yield to a very faint glimpse of a different intention in the context. Thus the mere fact that the annual income, until the distribution of the capital, is applicable per stirpes, has been held to constitute a sufficient ground for pre-, suming that a like principle was to govern the gift of the capital: 2 Jarman on Wills 112, marg. paging.
    On this ground the rule has been repeatedly disregarded in Pennsylvania : Fissel’s Appeal, 3 Casey 55 ; Minter’s Appeal, 4 Wright 111; Gring’s Appeal, 7 Casey 292; Risk’s Appeal, 2 P. F. Smith 269. Vide also Roome v. Counter, 1 Halstead 111; Bool et ux. v. Mix, 17 Wend. 119; Alder v. Beall, 11 Gill & Johns. 123.

      Slagle & Wiley, for appellees Rosanna, John and Andrew Brown.
    The construction contended for by-appellants is inconsistent with the ruling in McNeilledge v. Galbraith, 8 S. & R. 43, where the words of the will were almost identical with those in this will. They differ only in the location of the word equally, and the addition of the words which convey a power of appointment to Alcy Beggs. That power was defective and void when she undertook to provide for an unequal distribution and did not make the division per capita. It was fully executed when she designated the persons to take her husband’s bounty. The court will support the execution so far as the power warrants and treat the rest as surplusage: Russell v. Kennedy, 16 P. F. Smith 248 ; Horwitz v. Norris, 13 Wright 213.
   Mr. Justice Mercur

delivered the opinion of the court, January 2d 1877.

The correctness of this decree is to be determined' by the construction given to the -will of Andrew Beggs. The clause in question is in these words:—

“ 3d. I will the residue of my estate, real, personal and mixed, to my beloved wife, Alcy, for and during her life; and, further, Í will that at her decease such moneys or property as she may possess be equally divided between her relations and mine, or such of them as she may believe most worthy.”

It may be conceded as a rule of construction in a will, that when a testator designates the objects of his gift by their relationship to a living ancestor, they take equal shares, per capita: McNeilledge v. Galbraith, 8 S. & R. 43 ; Same v. Barclay, 11 Id. 103; Risk’s Appeal, 2 P. F. Smith 269. But nevertheless, like all other constructions when applied to wills, it must be controlled by the general intention of the testator.

In Walker v. Griffin’s Heirs, 11 Wheat. 375, the devise was, “ I do request one-fourth part to be given to the families of G. Holloway, William B. Blackbowen and A. Bartlett, to those of their children that my wife may think proper; but in a greater proportion to Francis P. Holloway than to’any other of G. Holloway’s children ; and to Elizabeth P. Bartlett in a greater proportion than to any of A. Bartlett’s children. The balance to be given to the families of Cyrus, and John T. Griffin’s children, in equal proportion.” It was held that each of the first-named three families took as a single devisee, without any regard to the number of persons composing the family, and also that the children of Cyrus and John T. Griffin took per stirpes and not per capita, and that the property devised to them was to be divided into two equal parts, one moiety to be assigned to each family.

In Baskin’s Appeal, 3 Barr 304, the testator left three children and four grandchildren (the children of a deceased son). After some specific devises he directed the residue to “ be equally divided between all the heirs.” It was held that the residuary estate passed to his children and grandchildren per stirpes.

In Minter’s Appeal, 4 Wright 111, the testator distributed his property “ share and share alike among the children of my brother Adam, and the children of my brother Martin, and to my sister Barbara,” and the latter died before the testator, leaving children : it was held that the classification was not changed by the death of his sister, and that the legatees should be divided into three classes, and each class take as their parents would have done per stirp.es.

In Risk’s Appeal, supra, the testator made an equal division among his children, of a portion of his estate, and then ordered his real estate to be sold. After giving a specific sum therefrom to one of his two sons, he directed the residue to be “ equally divided between my beloved children George and Joseph and the children of my beloved daughter Catharine (now wife of James Risk),” it was held that Catharine’s children took per stirpes.

What then does the language of this will indicate to be the intention of the testator ? After the expiration of the life estate of his wife, he directs the property to “be equally divided between her relations and mine.” He and his wife were childless. There was no issue of either to whom the property could be transmitted. It may have been the joint product of their industry and economy. This or some other moving cause prompted him to direct that the property be “ equally divided ” between families of different blood. The language clearly points to one general division, one separation of the fund. Two classes were in his mind. One class was his relations, the other class was his wife’s relations. The property was to be equally divided “ between” these two classes, and each class to take one half. His relations one half, his wife’s relations the other half. Neither the language nor the spirit of the will indicates that each relation should have an equal share. To reach such a result would require all the relations of each, the testator and his wife, to be thrown together in one class, regardless of their relative number. So, if the wife had twenty and the testator two, her relations would take ten times as much as his relations. That would be a most manifest disregard of the direction for an equal division between the two families.

It follows, therefore, that the division of the property made by Alcy Beggs, is according to the true spirit and intent of the will of Andrew Beggs, and the court erred in decreeing the distribution to be made per capita.

Decree reversed, and the record is remitted with instructions to make distribution conformably with this opinion.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Birmingham Fire Insurance Co. versus Kroegher.
    1. A condition of a policy of insurance upon the merchandise of a store stipulated that no petroleum should he kept or had on the premises. The insured kept a barrel of petroleum at a time for sale, and the company claimed this avoided the policy. The court below instructed the jury that “merchandise” included whatever it was customary to keep in such a store, and if a supply of petroleum such as was kept on the premises was a part of the usual stock of the store the plaintiff could recover. Held to be error.
    2. Held farther, that the effect of the condition of the policy was not changed by the fact that the agent of the company knew that petroleum was kept on the premises at the time the insurance was effected.
    November 9th 1876.
    Before Ag-new, C. J., Sharswood, Gordon, Paxson and Woodward, JJ. Williams and Mercur, JJ., absent.

      Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November -Term 1876, No. 108.
    Case by William Kroegher against the Birmingham Fire Insurance Company to recover the amount of a policy of insurance on a stock of merchandise contained in a store at the Enon Coal Company’s works.
    The store was an ordinary country store kept for the purpose of supplying the miners at the coal works.
    The first condition of the policy contained this provision :—
    “ If the assured shall keep or have in any place or premises where this policy may apply, petroleum, naphtha, benzine, benzole, gasoline, benzine-varnish or any product, in whole or in part, of either; or gunpowder, fireworks, nitro-glycerine, phosphorus, saltpetre, nitrate of soda; or keep, have or use camphene, spirit gas, or any burning fluid or chemical oils, without written permission in this policy, then, and in every such case, this policy shall be void.”
    At the trial it was shown that plaintiff had kept a barrel of petroleum at a time for sale, as well as for lighting purposes and the defendant claimed that the policy was thereby avoided.
    The plaintiff contended:—
    1. That by the stipulation in this policy on “ stock of merchandise contained in store,” it must be intended that there was included whatever it was usual and customary to have in a stock of merchandise in such a store, and if the jury believe from the evidence that it is usual and customary to have and keep as part of the stock of merchandise in such stores as the plaintiff’s a supply of carbon oil such as the plaintiff had in his stock, then the plaintiff can recover, notwithstanding the terms of the first condition.
    2. That it having been shown that the insurance was effected with full knowledge by the agent of the company that carbon oil was kept and had by the plaintiff on the premises insured, as a part of his ordinary stock of goods, the plaintiff can recover, notwithstanding said condition, notice to the agent being notice to the company.
    The court, Ewing, P. J., sustained both of these positions of the plaintiff in their instruction to the jury.
    The verdict was for the plaintiff and the company took this writ, iivter alia, assigning this action of the court for error.

      Robb Snively and Thomas M. Marshall, for plaintiff in error.

      Hampton & Dalzell and Bayne & Magee, for defendant in error.—
    It*was proper to submit to the jury to find whether petroleum constituted a part of the assured’s “ stock of merchandise,” and whether it was included in the policy, and to hold, if so included, that no avoidance of the policy resulted by reason of the condition in question: Harper et al. v. The City Insurance Co., 1 Bosworth 520 ; Citizens’ Insurance Co. v. McLaughlin, 3 P. F. Smith 485 ; Girard Fire Insurance Co. v. Stephenson, 1 Wright 298; Franklin Fire Insurance Co. v. Updegraff et al., 7 Wright 350.
   Mr. Justice Gordon

delivered the opinion of the court, January 2d 1877.

We cannot approve of the answers of the court to the plaintiff’s (defendant in error) 1st and 2d points. Kroegher accepted the policy with the express stipulation therein contained, that the use of petroleum, or any product thereof upon the premises insured, without written permission, would avoid it. Granted that carbon oil is usually kept for sale as part of the stock of a country store ; the same may be said of gunpowder, and, perhaps, the reason for the prohibition maybe discovered in the fact that such a custom does exist, for if these articles were never found among such stocks this provision would be useless. It is probable that this provision would not apply to the oil used in lighting the premises, for such a use has, in these days, become a necessity for all buildings in the country in which light is required during the night. But it is not to such use that the points refer, but to the use of this product as an article of merchandise, and there can he no doubt but that, as such, it is in terms prohibited by the policy. The cases cited by the defendant in error are not in point. The policy in suit in the Citizens’ Insurance Co. v. McLaughlin, 3 P. E. Smith 485, admitted of the storage of benzole on the premises, and the fact of its being used in the manufacture of patent leather made the inference irresistible, that its use for that purpose was contemplated in the permission to keep it in a shed adjacent to the factory. The question in the case of the Franklin Ins. Co. v. Updegraff, 7 Wright 350, was whether the policy included hardware, china and glassware, under the general designation of “ merchandise such as is usually kept in country stores,” by the rules of the company these articles being scheduled as hazardous and subject to special rates. So in the Girard Fire & Marine Ins. Co. v. Stephenson, the question was, on the increase of the risk, by the putting of a stove in a carpenter shop. In the case in hand, had the policy permitted carbon oil to be kept upon the insured premises, a presumption would necessarily arise that it was to be kept there for some use, and it might be left to the jury to say for what use. If the question were whether this kind of oil was an article of merchandise ordinarily included in the stock of a country store, or if it were only an inquiry as to the increase of risk, it might well be referred to the jury. But it is nothing of the kind; it is an express stipulation that petroleum or its products shall not be kept upon the premises, and if it be so kept the policy is void. It matters not that it was part of a customary stock of goods, for by express contract it was excluded. The same reasoning applies to the fact of the knowledge of the company’s agent that carbon oil was kept on the property at the time of the insurance, for his knowledge could not change the contract of the parties. As sustaining this second point our attention has been directed to the case of Peoples’ Ins. Co. v. Spencer, 3 P. F. Smith 353, but it does not meet the point; for the policy in that case did not stipulate against that which was said to have increased the risk, hence, the knowledge of the agent at the time of taking the risk became material. But in the case before us, the company has taken care to leave nothing open for inference, or by which it might be compromised by the knowledge or representations of its agent, and if the insured was misled by the interpretation put upon this policy by the agent, he was misled by his own counsellor and he has no one to blame but himself. We see nothing in the remaining exceptions which requires much comment. Certainly where a company permits one to act for it, and adopts the contracts which he has made in its name, it cannot be permitted to deny his agency or to escape the results flowing from such agency.

That preliminary proof of loss may be waived under circumstances similar to those in this case, we have but recently decided in the case of the Humboldt Fire Ins. Co. v. Kroegher (argued at Pittsburgh October 13th). And see, also, the case of the Franklin Fire Ins. Co. v. Updegraff, 7 Wright 350.

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


author: Chief Justice Agnew

text:
    Pusey’s Appeal. In the matter of Charles Street.
    1. Art. 16, sect. 8 of the Constitution secures an appeal and a trial by a jury for damages wherever private property is taken by a municipal corporation for public use, and the Act of Assembly of 13th June 1874 was intended to furnish the remedy secured to property owners, by this provision of the Constitution, and gave an appeal to the Court of Common Pleas where no sufficient regulation for a trial by jury already existed.
    2. This constitutional provision applies to the assessment of benefits as well as of damages, by a jury.
    3. Where on appeal to the Quarter Sessions of Allegheny county, the court appointed viewers to assess damages to P. by the opening of a street through his land, and, upon exception to their report by P., the report was set aside and a new view ordered, and P. appeared before the new viewers and pressed his claim for damages, and within thirty days after the filing of the new report demanded a jury trial in the Common Pleas: Held (reversing the court below), that under art. 16, sect. 8, of the Constitution (carried into effect by the Act of 13th June 1874), P. was entitled to a trial by a jury: Held, also, that P. had not waived his constitutional right by permitting the case to go before the last board of viewers without objections on hjs part.
    November 10th 1876.
    Before Agnew, C. J., Sharswood, Gordon, Paxson and Woodward, JJ. Williams and Mercur, JJ., absent.
    Certiorari to the Quarter Sessions of Allegheny county: Of October and November Term 1876, No. 249.

      This was an appeal of William B. Pusey, for himself and his wife, in proceedings to open Charles street in the city of Allegheny. In March 1874, the city councils of Allegheny passed an ordinance for the opening of Charles street, and appointed viewers to assess damages and appraise benefits to the property owners. After the confirmation of their report by the councils, one Kimberlin took an appeal to the Quarter Sessions. The court appointed new viewers, and upon the filing of their report Pusey excepted thereto. This report was set aside, and the matter referred again to the same viewers. Pusey appeared before the viewers, under this reference, and pressed his claims for damages. The last report was filed September 11th 1875; on October 9th 1875, Pusey demanded a trial by jury and the record was ordered to be certified to the Court of Common Pleas, No. 2, for that purpose. Afterwards, on motion of the city solicitor of the city of Allegheny, a rule was granted on Pusey to show cause why this order should not be vacated, which was made absolute. In September 1876 this writ was taken, on the ground that the court erred in holding that Pusey had waived his right to a jury trial, and in revoking the order in which the case was certified into the Common Pleas for trial before a jury.

      J. S. & A. P. Morrison, for the appellants.

      W. B. Rodgers, city solicitor, contra.

   Chief Justice Agnew

delivered the opinion of the court, January 2d 1877.

This was a proceeding under an ordinance of the city of Allegheny to open Charles street, brought into the Court of Quarter Sessions by an appeal from the report of viewers appointed by the councils of the city to assess damages and appraise benefits to the owners of the property along the route of the street. On the 9th of October 1875, William B. Pusey, for himself and his wife as owners, presented his petition for an appeal and for a jury trial to assess their damages; upon which the Court of Quarter Sessions made an order certifying the record of the case into the Court of Common Pleas, No. 2, for the trial of the appeal. Afterwards, upon a rule to show cause, taken by the city solicitor, the order allowing the appeal and certifying the record into the Court of Common Pleas, was revoked and vacated. The learned judge who vacated the order, did so on the ground that the Act of 13th June 1874, Pamph. L. 283, -is inadequate to furnish the remedy by way of appeal and jury trial, applied for by Mr. Pusey; and on the ground also that he had waived his demand. This, we think, was an error. The Act of 1874 was intended to provide for the case and furnish the remedy secured to the owners of property, by the 8th section of the 16th article of the new Constitution. Indeed, the learned judge concedes this to be its purpose, but thought its provisions did not reach this case. A careful examination of the act leads us to a different conclusion. The first section of the act runs in the very words of the constitutional provision, describing the subject-matter provided for; and proves that the constitution was before the eye of the draftsman of the act. The third section refers to the constitutional provision in express terms; giving a certain time for an appeal after the passage of the act, to those persons falling within the constitution before the passage of the act. It is manifest, therefore, that the legislature intended to carry out the provisions of the 8th section of the 16th article of the new Constitution. This being so, it is the plain duty of the courts to sustain the purpose of the law, if it can be done without violence to its language.

The first objection to the act is, that it applies only to cases where “ an appeal is not provided for, or regulated by existing laws,” and an appeal being given to the Court of Quarter Sessions by the owner, it is said the act of 1874 is inapplicable to the case. But this objection overlooks the kind of appeal evidently intended by the act. The appeal is - given whether such assessments shall have been made by viewers, or otherwise than upon a trial in court, and an appeal is not provided for or regulated by existing laws.” The words “otherwise than upon a trial in court,” discover the evident intent to confer the appeal in those cases where the party has had no jury trial. If therefore an appeal and jury trial are not given, or, if given, not so regulated as to secure a jury trial, the intent was to carry out the constitutional injunction and give the appeal and jury trial. The alternative provision, “ or regulated by existing laws,” can have no other operation. If it had been intended not to allow an appeal in any case where an appeal was given, it was wholly unnecessary to add the words “ and regulated.” The act is poorly penned, but its purpose is too plain to suffer it to fail of the object intended. The constitutional injunction is too evident and the language too explicit to refuse this interpretation to the Act of 1874. The last clause of the constitutional provision is in these words, and the amount of such damages, in all cases of appeal, shall, on the demand of either party, be determined by a jury according to the course of the common law.” Here we have a plain injunction to be obeyed by the legislature, and a clear personal right to be enforced by the courts. Now, as we have seen, this being the purpose of the law, where an appeal is given by existing laws, but is not so “ regulated” as to secure a jury trial, it is not the appeal intended by the act to supersede the appeal given by it, and the appeal given by it must therefore be allowed in order that the Constitution may be executed. The appeal from the councils to the Court of Quarter Sessions given by the Act of May 20th 1871, Pamph. L. 1082, makes no provision or regulation for a trial by jury; and therefore the Act of 1874 supplies the remedy by an appeal to the Court of Common Pleas.

Were it not for this special provision carrying the appeal into the Court of Common Pleas, we would find no difficulty in a trial by jury in the Court of Quarter Sessions, the latter court having full power of summoning a jury for the trial of all issues therein, under the Act of 14th April 1834, sections 108 to 115. But the appeal in this case being given expressly to the Court of Common Pleas, the proper court for the trial of civil issues, the Court of Quarter Sessions was warranted in certifying the record into the Court of Common Pleas for the trial of the appeal, as was done in the first order.

Objections are raised to this proceeding, which it may be proper to notice. Eor instance it is asked, “Will each landowner be entitled to an issue and a trial by jury?” Certainly he will, for the Constitution gives this right to him. It .is said this will embarrass proceedings to lay out and open streets in those large cities where special legislation exists without a trial by jury. This cannot be avoided. It is a constitutional injunction which must be carried out by those who are sworn to support the Constitution. If there be fault in this, it lies at the door, not of the legislature, but of the convention which framed the provision.

Again, it is said that the Constitution provides only for a trial of the damages, and not of the benefits. This overlooks the inquiry which the Act of 1st April 1870 institutes in order to ascertain the damages. “ They (the viewers) shall make a true and conscionable appraisement of the damages, taking into consideration the probable advantages and benefits which any owner or owners will be likely to sustain by reason of the proposed improvement.” The damages therefore are the subject of the issue, but the legal mode of ascertaining them is by a comparison of the advantages and disadvantages. Indeed, in most cases damages are a result obtained by a comparison of the injury and the benefit accruing to the party. A familiar analogy is that of railroad damages j and many cases are to be found in the books showing that that mode of inquiry is pursued where the case has come before a jury on an appeal.

But the learned judge thought that Mr. Pusey had waived his appeal, because, when the report of viewers was set aside, the case was sent to a new board of viewers without his objecting. But a jury trial, as a constitutional right secured to a party, is never presumed to be waived, unless in a clear case. The waiver here alleged is inconsistent with his demand of a jury trial on the filing of his exceptions on the 20th of April 1875, as well as with the provisions of the Act of 1874. His first act in court was to demand a jury trial of the matters of fact involved in the exceptions. Clearly no implication of a waiver could be drawn against the force of his claim for a jury trial. Just as clearly, when the court on bis exceptions set aside the report of viewers, there was nothing from which an appeal could be taken. The Act of 1874 declares that the appeal shall be taken by either party to the Court of Common Pleas of the proper county, within thirty days from the ascertainment of the damages or the filing of the report. When the report was set aside the damages were not ascertained, and nothing remained from which an appeal could lie. Until a new ascertainment and filing of the report by the viewers, the appellant sustained no injury. When the new report was filed the damages were then ascertained, and he took his appeal within time. But it is unnecessary to pursue the case farther. The Constitution secures an appeal and trial by jury for damages caused where property is taken by a municipal corporation for public use. The Act of Assembly is intended to execute this duty, and gives an appeal to the Court of Common Pleas where no sufficient regulation for a trial by jury already exists. The court below therefore erred in revoking and vacating the order for an appeal of the 9th of October 1875. The •vacating order of December 18th 1875 is therefore reversed, and the order of October 9th 1875 is restored, and a remittitur of the record with a procedendo is awarded.


text:
    Williams et al., Executors of Anna M. Irwin, versus City of Pittsburgh.
    The Act of Assembly of 13th June 1874 was intended to carry into effect the provisions of art. 16, sect. 8, of the Constitution, which gives a right of trial by jury in all cases of damages for land taken by municipal corporations and others for public use.
    November 8th 1876.
    Before Agnbw, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county :

    Of October and November Term 1876, No 235.
    The question involved was the same as that raised in Pusey’s Appeal, antea 67. The facts were these : In 1873 the councils of Pittsburgh passed an ordinance providing for the opening of a part of Forty-seventh street in Pittsburgh. The report of the board of viewers to assess the damages for the opening of the street, was confirmed by the councils on October 1st 1874. On October 14th 1874, Henry W. Williams and John W. McCord, executors of Anna M. Irwin, filed an appeal to the Quarter Sessions, which court upon their demand, ordered the case to be certified to the Common Pleas, No. 1, for a jury trial. Upon the trial a verdict was found for the executors, plaintiffs in the issue, for $12,809.50. After a motion for a new trial had been overruled, the counsel for the city moved to have the whole proceedings dismissed for Avant of jurisdiction, which motion Avas granted by the court. The plaintiffs thereupon took this Avrit of error, assigning for error the dismissal of the proceedings.

      Hill Burgwin, for the plaintiffs in error.

      T. S. Bigelow and L. B. Buff, for the defendant in error.
   Chief Justice Agnew

delivered the opinion of the court, January 2d 1877.

This case is governed by the decision just made, in the appeal of William B. Pusey. The Acts of Assembly under which the proceedings took place beloAV, in each case, are nearly identical; those relating to the city of Allegheny being transcripts of those relating to the city of Pittsburgh, so far as the proceedings in question are involved. See Acts 6th January 1864, Pamph. L. 1131; and 13th May 1871,- Pamph. L. 840. The appeal in this case Avas properly certified into the Court of Common Pleas, No. 1, under the Act of 13th June 1874, Pamph. L. 283. This act appears to have been overlooked by the plaintiffs in error in this- case. In Pusey’s Appeal we have shoAvn that the Act of 1874 was intended to cany out the provisions of the 8th section of the 16th article of the neAV Constitution, giving a jury trial in all cases of damages, for property taken by a municipal corporation and others; and that the appeal given in such cases is to the Court of Common Pleas. Consequently the proceedings in the case before us were proper, down to the time of rendering the verdict of the jury. But the court beloAV erred in striking off the case, because of a want of jurisdiction, after a jury trial and verdict for the plaintiffs, and after refusing to grant a new trial. The plaintiffs Avere entitled to a judgment on their verdict. The order striking off the case is therefore reversed, and this court, proceeding to give the same judgment which the court below ought to have rendered, now give judgment on the verdict for the plaintiffs, for the damages found by the jury; to wit, the sum of $12,000 with costs of suit; and the record is ordered to be remitted to the Court of Common Pleas, No. 1, for execution. Judgment.

Afterwards the following order was entered in the case:—

And now, January 15th 1877, it is ordered that a clerical error, in entering judgment in this case for $12,000, instead of $12,809.50, the true amount of the verdict, be corrected, and that judgment be now entered for the latter sum, viz., $12,809.50, and that the judgment of this court, as thus amended, be certified by remittitur.


author: Mr. Justice Sharswood

text:
    In re division of Plum Township.
    Under the 14th section of the Act of 15th April 1834, Pamph. L. 539, which provides for the creation of new townships, &c., the order of the court appointing the commissioners must contain an explicit direction to them, according to the express terms of the law, “to inquire into the propriety of granting the prayer of the petitioners,” and a neglect to do so is fatal to the proceedings.
    November 10th 1876.
    Before Agnew, C. J., Sharswood, Gordon, Panson and Woodward, JJ. Williams and Mercur, JJ., absent.
    Certiorari to the Court of Quarter Sessions of Allegheny county: No. 255, of October and November Term 1876.
    The proceedings in the court below were to obtain the division of Plum township in the county of Allegheny.
    The petition of voters, citizens and residents of said township, which bore date the 8th of May 1876, represented that the said township was of large extent territorially ; that there was considerable v diversity of interest amongst its inhabitants ; that the voting-place was in a central position, and that the voters in the north end of the township had to travel from five to seven miles to reach the polls, and the petitioners therefore prayed the court to divide the township into two townships, and to form a new township out of the northern end of Plum township ; to fix a voting-place and appoint the necessary election officers for the purpose of holding the next election, and until their successors shall be elected, &c.
    On the same day the court appointed three commissioners “ to mark out and lay out said new township and suggest a name therefor, also fix the place or polls for holding elections therein, if' it is necessary and proper that such new township should be formed, and to make report to court.”
    On the 10th of June 1876 the commissioners filed their report in favor of a division, and on the 1st of July following the court made this order:—
    “It appearing to the court that the report of commissioners appointed in this case to inquire into the propriety of the division of said township, and the formation of a new township thereout, is in favor of the formation of a new township to be called ‘Ewing,’ and that the same has been filed, the court do order and direct that a vote of the qualified electors of said township of Plum be taken on the question of a division of said township, and the formation of a new township, in accordance with the report of said commissioners at the place fixed by law for holding the elections in said township on the 18th day of August 1876, said election to be governed by the several laws of this Commonwealth relative to township elections.”
    On the 21st of August 1876 the returns of the election were filed, showing 114 for the division of the township and 112 votes against.
    On the same day exceptions were filed, alleging that there were irregularities at the election, and the court was asked to set it aside.
    On the 12th of September the court overruled and dismissed the exceptions and confirmed the report of the commissioners absolutely.
    The exceptants sued out this writ of certiorari and, inter alia, assigned for error that
    “ The order of court appointing the commissioners does not direct them to inquire into the propriety of granting the prayer of the petition.”

      J. McF. Carpenter, for exceptants.
    The order of court appointing commissioners to divide a township must contain an explicit and express direction to inquire into the propriety of making such division: Act of Assembly 15th April 1834, art. 14, Pamph. L. 539; In re Bethel Township, 1 Penna. St. 97 ; In re Harrison Township, 5 Id. 447; In re Div. Conneaut Township, 6 Pitts. L. J. 121. An omission to direct such inquiry is not cured by a report that the inquiry was made: In re Harrison Township, 5 Penna. St. 447. The report of the commissioners must contain an explicit opinion upon the propriety of granting the prayer of the petitioners: In re Limestone Township, 11 Penna. St. 270; In re Macungie Township, 14 S. & R. 67.

      James Fitzsimmons, contra.

   Mr. Justice Sharswood

delivered the opinion of the court, November 20th 1876.

The 14th section of the Act of April 15th 1834, Pamph. L. 539, provides that upon application by petition to the Court of Quarter Sessions for the purpose of creating a new township or altering the lines of any' township, or of ascertaining the lines or boundaries of any township, the court shall appoint three impartial men, if necessary, to inquire into the propriety of granting the prayer of the petitioner. It has been settled in a series of cases decided by this court upon the construction of this act that the order of the court appointing the commissioners, which is their authority for acting, must contain an explicit direction to them according to the express terms of the law, “ to inquire into the propriety of granting the prayer of the petitioners:” In the matter of the division of Bethel Township, 1 Barr 97 ; In re Harrison Township, 5 Id. 447; In re Conneaut Township, 6 Pittsburgh Legal Journal 121. The order of the court in this case was plainly defective in this respect. It contained no direction to the commissioners to the effect required. The order directed the commissioners “ to mark and lay out said new township and suggest name thereof, also to fix the place or polls for holding elections, if it is necessary and proper such new township should be formed.” It might well be inferred that the court reserved to itself the decision of the question, whether it was necessary and proper that such new township should be formed and that the work of the commissioners was to be contingent upon such determination. There is certainly no explicit direction to them to inquire and report upon the propriety of granting the prayer of the petition. Conceding that they did report upon that question — and even the report varies from the words of the act — we may adopt the language of the court in In re Bethel Township, 1 Barr 101. “ True, they voluntarily certified that they thought the division proper; but in going beyond the terms of the order they acted unofficially. They are to be sworn, but only to do those things rightly which they are commanded to do; and we know not that they swore to the truth of the opinion which they volunteered; officially they certainly did not.”

As this defect is fatal to the proceedings, it is unnecessary to consider the remaining assignments of error.

It is proper- to notice what certainly is a great irregularity in practice appearing on -this record. No certified copy of the order was issued, but as it would seem the original order was delivered to the commissioners, and their report is attached to it, it would be a practice replete with danger to the public records if it should be tolerated. The clerk clearly violated his duty in allowing the order to be taken out of the office, and would have been responsible for damages if it had been lost.

Order reversed and proceedings quashed.


text:
    Green versus Commonwealth.
    1. Where in the trial of an indictment for murder the evidence showed that the prisoner had had time to act deliberately, and had not acted tinder a sudden gust of passion, and it appeared that he had been on very bad terms with the deceased: Held, that all the ingredients of murder in the first degree were proved, and the case was properly submitted to the jury.
    2. The facts in evidence in this case did not raise such a strong and reasonable doubt as ought to have required an acquittal.
    3. Where a point was affirmed, but a qualification was added, which, though perhaps doubtful, when taken by itself, yet taken in connection with the context and the general charge, was not likely to have misled the jury, this court will not reverse.
    4. If there be time to frame in the mind fully and consciously the intention to kill, and to select the weapon or means of death, and to think and know beforehand (though the time be short) the use to be made of it, there is time to premeditate and deliberate.
    November 10th 1876.
    Before Agnew, C. J., Sharswood, Gordon, Passon and Woodward, JJ. Williams and Mbrcur, JJ., absent. •

      Error to the Oyer and Terminer of Allegheny county: Of October and November Term 1876, No. 209.
    Indictment against William Green for the murder of Samuel Marshall at Mansfield, in Allegheny county, on September 2d 1875. The facts together with the defendant’s first point appear in the opinion of the court. The learned judge (Sterrett, P. J.) charged, inter alia, as follows:—
    “ He who takes the life of another with a deadly weapon and with a manifest design thus to use it upon him, with sufficient time to deliberate and form the conscious purpose of killing, and without any sufficient reason or cause of extenuation, is guilty of murder of the first degree.
    “ When the act is done deliberately with a deadly weapon, and is likely to be attended with dangerous consequences, the malice, requisite to murder, will be presumed; for the law infers that the natural or probable effect of any act, deliberately done, is intended by the actor. Where the killing, then, is malicious and the evidence shows a wilful, deliberate and premeditated purpose to take life, it is murder of the first degree.
    “ All murder, not of the first degree, is necessarily murder of the second degree, and includes all unlawful killing under circumstances indicating depravity of heart, and a disposition of mind, regardless of social duty, where no intention to kill exists or can reasonably be inferred. Therefore in all cases of murder, if no intention to kill can be inferred or collected from the circumstances the verdict must be murder of the second degree.
    “ Manslaughter maybe defined to bo the unlawful killing of another without malice, express or implied, which may be voluntarily done in a sudden heat of passion, or involuntarily, in the commission of an unlawful act. Voluntary manslaughter often so nearly approaches murder that it is necessary to distinguish it clearly. The difference is this : Manslaughter is never attended by legal malice or depravity of heart, that condition or frame of mind before spoken of, exhibiting wickedness of disposition, recklessness of consequences or cruelty. But being sometimes a wilful act, as the term voluntary denotes, it is necessary that the circumstances should take away every evidence of cool depravity of heart or wanton cruelty. Therefore to reduce an intentional blow, stroke or wounding, resulting in death, to voluntary manslaughter, there must be sufficient cause of provocation, and a state of rage or passion, without time to cool, placing the accused beyond the control of his reason and suddenly impelling him to the commission of the deed. If any of these be wanting — if there be provocation without passion, or passion without legal provocation, or if there be time to cool and reason has resumed its sway, the killing will be murder. But it is not every cause of provocation that is regarded as sufficient or legal. Insulting or scandalous words are not sufficient cause of provocation; nor are actual indignities to the person of a slight and trivial nature. Whenever the ' act evidences a deadly revenge, and not the mere heat of blood: whenever it is the result of a devilish disposition, and not merely the frenzy of rage, it is not manslaughter, but murder. Passion arising from adequate legal provocation is evidence of the absence of malice.”
    The jury found a verdict of guilty of murder in the first degree; After sentence of death was pronounced thereon, the defendant took this writ of error, assigning for error that the record and evidence failed to show that the ingredients necessary to constitute murder in the first degree were proved to exist, and the refusal of the court below to affirm the latter part of the defendant’s first point.

      J. (7. Graham and J. H. Baldwin, for the plaintiff in error.—
    The evidence shows that there must have been a conflict; and if so, the verdict of murder in the first degree was not justified by the facts.
    The first point was in the exact language of the charge in Commonwealth v. Drum, 8 P. F. Smith 9.
    If the act was done in a moment of impetuous rage or passion, the offence was murder in the second degree: 2 Whart. Crim. Law, §§ 982, 935, 944, 978 ; Hopkins v. Commonwealth, 14 Wright 9; Kilpatrick v. Commonwealth, 7 Casey 202.

      T. M. Bayne (with him B. A. Montooth, District Attorney), eontrd.

   Chief Justice Agnew

delivered the opinion of the court, November 20th 1876.

Upon a careful examination of the evidence in this case, we find that all “ the ingredients necessary to constitute murder in the first degree were proved to exist.” The prisoner and the deceased had been upon bad terms and involved in litigation immediately before the homicide. The former, on the next morning after the lawsuit, had threatened the life of the latter. In the evening of the killing he stopped before the door of the house where the deceased was sitting at supper, and asked the latter what he was going to do about the potatoes, a subject of difficulty between them. This led to an angry altercation, the deceased using bad language and threatening to give the prisoner a good pounding. The prisoner having started up the road toward home, saying he would bring suit next day, the deceased ran back to the fireplace, picked up a poker, an.d running out of the house, called to the prisoner to come back, saying if he came he would not go away alive. The prisoner, then being some yards up the road, said, “ I will come,” and started toward the deceased, and before reaching him levelled at him a gun he had been carrying in his hand. The latter said, “ Shoot, if you want to.” At the same instant the report and flash of the gun were heard and seen. The deceased fell near the spot where he stood before the house; the sound of a heavy blow was heard, and very soon the prisoner started off toward home. The deceased was found with a large gash in his head; a piece of the gun-barrel, about one foot long, was shortly afterwards found near by, and the broken gun carried off by the prisoner found at his house on the same evening. No one saw the blow struck, yet the sound of it, the broken piece near the spot, the fractured gun, and the cut in the head of the deceased, leave no doubt of the fact. Nor is it very material where and how precisely the blow was struck, as the evidence, beyond a question, proves that the gun was fired before the prisoner reached the deceased, and the bullet-wound was the undoubted cause of death. Still the fact of the blow is important in determining the state of the prisoner's mind and his-disposition toward the deceased. Had the conflict and the blow occurred before the shooting, a different case would have been presented bearing on the prisoner’s state of mind and intention. But here one whose mind had before been inflamed toward the deceased, who had threatened him, levelled a loaded gun and fired at him, at some distance and before the latter had committed an assault upon him, or could have reached him with the poker held in his hand, and found still in it when carried into the house.

It is evident, therefore, that there was ample time for the prisoner to frame in his mind the deliberate purpose to shoot the deceased, and to carry this intent out, by levelling his gun and discharging it, when told to shoot. It is no doubt true that he was also irritated by the very bad language of the deceased; but this was no sufficient cause of provocation for taking life; while the turning back of the prisoner, when called to come back, his expression as he turned— “God damn your wicked heart, I have been waiting for that,” walking back toward the deceased, levelling the gun at him, and shooting at the instant the deceased told him to. shoot, all evidence a sufficient time to act deliberately, and not under a sudden gust of passion, tearing up reason by the roots, and urging him on to a rash and thoughtless deed. These facts, together with the previous state of the prisoner’s feelings toward the deceased (his half brother), clearly presented a case where the ingredients of murder in the first degree were proved to exist, and, therefore, must be submitted to the jury for their judgment. Nor can we say that there was such a strong and reasonable doubt of their existence as to require an acquittal.

But one other -assignment of error is worthy of notice. The prisoner’s first point is that “ to constitute murder in the first degree there must be a design and intention to kill at the time the homicidal act is committed, and this intention must be a fully formed purpose to kill with so much time for deliberation and premeditation as to convince the jury that this purpose is not the immediate result of rashness and impetuous temper.” The answer affirmed the point in its own language nearly, and the judge added, “but the purpose to kill necessary to constitute murder in the first degree, may sometimes be ‘the immediate result of rashness and impetuous temper.’ A rash and impetuous temper is no excuse, unless it has been aroused by adequate legal provocation, as explained in the general charge, and the intention to kill has been formed in the heat of passion thus generated.” The first clause of the qualification is perhaps doubtful, yet in view of the whole sentence and of the reference to the explanation given in the general charge, relating to the crime of manslaughter, as an offence committed under provocation and passion, we are led to believe that the qualification contained in the answer was intended to guard the jury against a mistake by which they might reduce the offence from murder to manslaughter, in the absence of a legal provocation, there being a seeming provocation in the bad language of the deceased. In this view we may reasonably conclude that the jury were not misled by the seeming inaccuracy of the first clause in the qualification of the answer. The general charge correctly set before the jury the distinctions in regard to homicide, and drew their attention to the difference between murder and manslaughter.

The point, however, was not intended to bring this distinction into view, but rather the frame of mind necessary to the commission of murder in the first degree; that is the deliberation and premeditation which the Act of Assembly makes essential to the crime of murder in the first degree. So far as impetuous rage and rashness followed by the immediate act which takes away life, tend to deprive the prisoner of deliberation and premeditation, and to reduce the homicide from murder in the first to. murder in the second degree, the point was pertinent; for it was for the jury judging upon the evidence to determine whether the act ivas a result of a deliberate and premeditated purpose to kill. The time may be short, yet a jury may find that the fully conscious purpose to kill existed. Yet if, on the other hand, by reason of the shortness of the time and the presence of great rage produced on the instant, and in a moment of impetuous temper, a blow is given, a jury may be convinced that it was not the result of a fully formed purpose to kill, but of a rash and hasty impulse, with scarcely a consciousness of any purpose except to do bodily harm to the object of wrath. Hence, though the absence of a legal provocation may prevent the reduction of the crime from murder to manslaughter, the want of the deliberation and premeditation required by the law may reduce the grade of the murder from the first to the second degree.

If, therefore, the learned judge intended the qualification in his answer to the first point, to apply to the point itself, it would be inaccurate. Rut bis reference to Ms general charge conveys the impression that he intended only to guard the jury against a misapprehension, reducing the offence to manslaughter in the absence of ■■ a legal provocation. This acquires strength when we remember the facts of the homicide. The prisoner returned at the call of the deceased, and before reaching him, levelled his gun and fired, and this too after the expression, “ God damn your wicked heart, I have been waiting for that,” excited by the call; no doubt, he was angry and provoked by the threats of the deceased ; but his anger was the offspring of hate and revenge, and not of that hasty and impetuous rage, which for the instant dethrones reason and impels to the commission of an act of violence, with scarcely a consciousness of its own real purpose. To use the language in Drum’s case, 8 P. E. Smith 16, the law regards and the jury must find the actual intent, that is, the fully formed purpose to kill, with so much time for deliberation and premeditation, as to convince them that this purpose is not the immediate offspring of rashness and impetuous temper, and that the mind has become fully conscious of its own design. If there be time to frame in the mind fully and consciously the intention to kill, and to select the weapon or means of death, and to think and know beforehand (though the time be short) the use to be made of it, there is time to deliberate and premeditate.

Upon the whole case we discover no substantial error. The judgment of the court of Oyer and Terminer is affirmed, and it is ordered that the record be remitted for the purpiose of execution.


text:
    Hogg et al. versus Ashman et al.

    1. Under the Act of April 22d 1856 (Limitations of Actions), which repeals sect. 4 of Act of March 26th 1785, a person under coverture must make entry or bring suit to recover lands within thirty years after her right of entry accrues, notwithstanding her coverture.
    2. Under the Act of 1856, the statute runs against persons under disability as in other cases, and bars their claims after thirty years from the time when their right of entry accrues.
    3. Parties claiming title under Mary Rogers brought ejectment in 1872 to recover certain land devised to her in 1818; as early as 1836 the defendants had boon in possession of the land in dispute; Mrs. Rogers died in 1852 and her husband in 1872: Held, that the Act of April 22d 1856 was a bar to the action.
    November 13th 1876.
    Before A&new, C. J., Siiarswood, Gordon, Paxson and Woodward, JJ. Williams and Mercur, JJ., absent.
    Error to the Court of Common Pleas of Fayette county: Of October and November Term 1876, No. 281.
    Ejectment by Catharine I. Ashman and others, against John T. and George E. Hogg, for a narrow strip of land containing about eight acres. The action was begun December 21st 1872.
    Isaac Meason, the elder, who died in 1818, by his will directed a certain farm to be divided “ by running a straight line from the river (the Youghiogheny) throughout to the back line on the hill, so as to divide the tract into two equal parts, as nearly as may be,” and gave one part to his son Isaac and the other to his daughter Mary Rogers. Immediately after his death, the devisees took possession of their respective parts of the farm. The share of Isaac Meason, Jr., was sold by the sheriff in 1885 and became afterwards vested in the defendants. The plaintiffs claimed under Mrs. Rogers. Mrs. Rogers died in 1852; her husband died September 18th 1872. The existing line between the two properties when this action was brought was marked by a fence built in 1836. There was conflicting evidence as to whether the line had ever been actually settled by agreement between the devisees of the two tracts under Meason’s will. The plaintiffs below sought to establish a new line which would increase the size of their share, and for that purpose brought this action.
    The court (Stowe, A. J.) charged that if the existing line had been actually agreed upon between the respective parties as the line of their properties, the verdict should be for the defendants; if, however, they should not find so, they should find for the plaintiffs, as the line which the plaintiffs sought to establish was the line intended by Isaac Meason’s will, and the one which might have been originally claimed under the will, had the devisees thereunder so chosen at that time.
    ' Verdict for the plaintiffs and judgment. The defendants below then took this writ of error.

      D. Kaine, W. Parshall and G. W. K. Minor, for the plaintiffs in error.

      C. B. Boyle and E. Campbell, for the defendants in error.
   Mr. Justice Gordon

delivered the opinion of the court, January 2d 1877.

The case of Hunt v. Wall, 25 P. F. Smith 413, governs the case now in hand. The land in controversy was devised by Col. Isaac Meason to his daughter Mary, wife of Daniel Rogers. Meason died January 23d 1818; title to the premises then vested in Mrs. Rogers and her right of entry accrued at that time. She was then under the disability of coverture. She died November 3d 1852, and her husband, Daniel, September 18th 1872. But for the Act of 1856 her heirs would have had ten years after the death of her husband within which to bring suit for the recovery of the premises : Marple v. Myers, 2 Jones 122. But this act repeals the 4th sect, of the Act of 1785, by which the Statute of Limitations was suspended as to persons under disability, and now that statute runs as in other cases from the time the right of entry accrues, the only difference, in favor of such persons, being that they may make entry or bring suit at any time within thirty years, whereas in ordinary cases the limit is twenty-one years. If then the entry of Isaac Meason, Jr., under whom the defendants claim, was made in the lifetime of Mrs. Rogers, under a claim adverse to her title and the seisin of her husband, who was tenant by the curtesy, the statute began to run from the date of such entry, and an adverse possession for thirty years from that time would finally and conclusively bar the right of entry of both husband and wife, and of all claiming under them. A very different case would be presented had Isaac Meason, Jr., claimed to hold under conveyance from the husband ; for then he would hold by virtue of the husband’s estate as tenant by the curtesy and his right to the seisin of the freehold during life; hence, until the husband’s death, the possession would not be adverse, but in subordination to the wife’s title.

Such was the case of Ege v. Medlar, 1 Norris 86. The creditors of George Ege had seised upon and sold his right in the tract of land in controversy, the title to which was in his wife. Her title originated in 1815. Judgment was had against George Ege in 1820, upon which the land ivas sold in 1838. Mrs. Ege died in December 1848, and her husband in February 1858. Now, if George Ege had, at the time of the sheriff’s sale, any interest in his wife’s land, that interest passed to the sheriff’s vendees, and they could hold until that interest was divested by Ege’s death. When, in treating of that case, we demonstrated that he had curtesy in his wife’s land, we thought we had shown all that was necessary to prove that the Statute of Limitations could not begin to run against her heirs until the determination of the curtesy estate. But that we did not make ourselves clear seems to be obvious from the fact that this case is now cited as containing a doctrine contrary to that found in Hunt v. Wall. A little further explanation will show that there is no resemblance between the two cases. At common law the husband, before issue born, was entitled to the seisin only of his Ayife’s land, and if there was no issue such right terminated upon her death. Still his right was one fixed and vested in himself, for we find in case of his attainder, there Avas a forfeiture of such seisin, and consequently of the pernancy of the profits during coverture: 2 Bl. Com. 483. But, after issue born, he became tenant by the curtesy initiate, and • thus had vested in him, not only the seisin, but also the freehold for life by a sort of remitter. In Pennsylvania, curtesy is not dependent upon the birth of issue, but upon the marriage alone; hence, though this estate be not fully consummate until the death of the wife, yet it is such an one as he may sell or charge with his debts : Lancaster Bank v. Stauffer, 10 Barr 398; Beard v. Deitz, 1 Watts 309. It will be seen, therefore, that the vendees of the sheriff, taking, as they did, George Ege’s title, became tenants of the property during his life, and that, from the very nature of the estate, they did not and could not hold adversely to the remaindermen, heirs of Elizabeth Ege, neither could these heirs have their writ of ejectment until his death, for, as against his vendees, they had neither title nor right of entry. To make this case like the one in hand, we must suppose that the defendants entered in the lifetime of Mrs. Ege, under a claim not only adverse to her right, but also to that of her husband. In such case, the owners of the fee might at any time within thirty years have recovered the possession by an action at law or by entry; as it was, this could not be, for the defendants held George Ege’s life estate, and hence could not be disturbed until his death.

Judgment reversed, and.a venire facias de novo awarded.


text:
    The Beaver Falls Water-power Co. et al. versus Wilson.
    Where the canal commissioners, in constructing the Pennsylvania canal in 1834 entered into an agreement for a valuable consideration to supply waterpower to T.’s mill, through a waste-weir in the canal bank, and ái 1845 sold a part of the eanaí to the Erie Canal Company, subject to the water rights of riparian owners, and by a sheriff’s sale in 1872 and mesne conveyances, a portion of the lands of the canal, but not its franchises, became vested in a private corporation, and the canal, as such, was abandoned: Held, that the purchaser at sheriff’s sale and his vendees took the property subject to the right of T.’s vendees to an unrestricted flow of water through the canal and waste-weir to T.’s mill.
    November 14th 1876.
    Before Agnew, C. J., Siiarswood, Gordon, Paxson and Woodward, JJ. Williams and Mercur, JJ., absent.
    Appeal from the Court of Common Pleas of Beaver county: Of October and November Term 1876, No. 266.
    This was a bill in equity filed by Wade Wilson to restrain the Beaver Falls Water-power Company and the trustees of the Harmony Society from preventing the flow of water to his mill.
    The bill set forth the following case: Before and during the year 1834, David Townsend was the owner of a flouring mill, usually called the “ Stone Mill,” situated on the Beaver creek and supplied by water-power from that stream through the owner’s dam at New Brighton. In 1836, in the construction of the Beaver division of the Pennsylvania canal, the erection of the state dam at Bridge-water so injured the dam of the Beaver Falls Water-power Company, at Fallston, by backwater, as to make it necessary to raise the latter dam and this in turn would have been the cause of great injury to Townsend’s water-power, at New Brighton. Under these circumstances, in order to reduce the damages for which the Commonwealth would have been liable to the water-power company, an agreement was entered into between Townsend, the Beaver Falls "Water-power Company and the state canal commissioners, by which the latter agreed to furnish water-power to the Stone Mill, through a waste-wier in the canal bank, which was to be not lower than six inches below the fixed height of top water line of the canal, and of such width as to permit the passage of a sufficient quantity of water to propel the then machinery of the mill. Townsend agreed to authorize the Beaver Falls Water-power Company to raise their dam at Fallston to such height as might be necessary, and to release all damages. This agreement was fully carried out. The Stone Mill was carried on by Townsend and the successive proprietors without interruption, excepting at such times as the water was drawn from the canal for the purpose of making repairs. After the death of Townsend, the Stone Mill became vested by various conveyances in Wilson, the plaintiff below. Under an Act of Assembly of 7th March 1843, the state authorized the transfer of this part of the canal to the Erie Canal Company, subject to a proviso (by sect. 17 of the act) that that company should “be bound by all the contracts heretofore made by the Commonwealth, when the same had been made by virtue of existing laws, in the grant or lease of water privileges,” &c. The bill averred that the defendants, the water-power company, threatened to stop the supply of water to the plaintiff's mill, and prayed an injunction to restrain the defendants from such action.
    The defendants’ answer, admitting many of the averments of the bill, set forth that the privilege of using the water from the canal as a motive power had been given to Townsend by the commissioners without any consideration therefor moving from him to the Commonwealth ; that the plaintiff’s mill was not at the time of filing the answer, and had not been for many years, supplied by water through the waste-weir built by the Commonwealth, but through a passage way made by cutting down the bank of the canal to the bottom of the canal; that the mill had not been uninterruptedly used as a flour mill by its owners, but on the contrary had for some time been used as a foundry, and the original mill had been destroyed by fire and a new mill built on the same site; that the canal had long since been abandoned as such, and the property of the canal company had become vested in private persons, and that the then owners were not bound to keep the plaintiffs’ mill supplied with water from the Beaver river at a point almost a mile distant therefrom, after the canal had ceased to be used for public purposes; that it required more water-power to propel the machinery of the mill at the time the answer was filed than in 1834; that the waterpower company owned the dam at Beaver, from which the water was supplied to the canal, and that the trustees of the Harmony Society, defendants, who were also large stockholders in the waterpower company, had become the owners in fee simple of that portion of the canal lying between the stone mill and the Beaver dam; and that the water-power at the Beaver clam was greatly impaired by draining off water from it to supply the plaintiff’s mill.
    It further appeared that the change in the manner of supplying water to the plaintiff’s mill was made in 1844, at the instance of the superintendent of the canal; that the mill was destroyed by fire in 1847, but rebuilt the next year, and that, though the mill was at one time used as a foundry, there had never been an intention on the part of the owners to abandon its use as a flour mill. The canal, as such, was abandoned in 1872, and the title to this portion of it (that is, its lands, locks and appurtenances) became vested in the trustees of the Harmony Society, defendants, by a sheriff’s sale and sundry conveyances. The supply of water to the mill was flowing through the passage as it existed when this suit was begun, at the time of the purchase by the Erie Canal Company, January 1st 1845, and without interruption from 1844 to the beginning of these proceedings. It appeared that it was the intention 'of the water-power company, with the consent of the owners of the canal, to cut off the entire supply of water to the plaintiff’s mill, and that this would be the cause of great and irreparable injury to him. *
    The court below (Stowe, A. L. J.) was of opinion that the passage-way to the plaintiff’s mill, as it was changed in 1844, had been ever since then apparent and visible; that when the canal' passed into the hands of the Erie Canal Company, an inceptive right arose against that company which, in twenty years, had grown into a complete legal title by prescription, and decreed a perpetual injunction to restrain the defendants from stopping the flow of water to the plaintiff’s mill through the canal. The defendants below took this appeal.

      Wilson & Moore and E. B. Daugherty, for the appellants.
    The appellee can have no prescriptive right, as under the Act of 1843 the Erie Canal Company was compelled to allow the owners of his mill to use the water from the canal: Jessup v. Loucks, 5 P. F. Smith 350 ; besides, the same act saves to the Erie Canal Company all the privileges of the state; and one of these is immunity from the operation of the Statute of Limitations.
    The rights given to Townsend, in 1884, by the canal commissioners, was of grace, and not of right; the damages to him were consequential, and not direct, and the state was not bound to compensate him: W. B. & S. Co. v. Mulliner, 18 P. F. Smith 357; Philad’a & Trenton Railroad Co., 6 Whart. 25; Monongahela Navigation Co. v. Coons, 6 W. & S. 101; Susquehanna Canal Co. v. Wright, 9 Id. 9.
    The state could have abandoned the canal at any time : Branson v. Philadelphia, 11 Wright 332; Charles River Bridge v. Warren Bridge, 11 Peters 420; and the Erie Canal Company and the Harmony Society had the same right. This right was secured to the canal company by the Act of 31st March 1870. In the event of the exercise of this right, all grants of water rights would cease: Craig v. Allegheny City, 3 P. F. Smith 477 ; Commonwealth v. Penna. Railroad Co., 1 Id. 351.

      B. B. Chamberlain, S. B. Wilson and J. K. Pier sol, for the appellee.
    The agreement made in 1834, between the Canal Commissioners, the 'Water-power Company and Townsend, was an irrevocable contract, founded upon a good, consideration; and although the state can abandon its canals, it cannot, in doing so, abrogate private rights. It is not a question of eminent domain, but of private rights acquired from the state.
    The Act of 31st March 1870, authorized a sale for canal purposes ; gave purchasers rights for canal purposes only subject to existing rights in the appellee created in 1834 and saved in section 17 of the Act of 1843 : City of Allegheny v. O. & P. Railroad, 2 Casey 355. See, also, P. Railroad Co. v. Duquesne, 10 Wright 223; P. & R. Railroad Co. v. Philad’a, 11 Id. 325; Lambertson v. Hogan, 2 Barr 22; Iron City Bank v. Pittsburgh, 1 Id. 340; Paschall v. Passmore, 3 Harris 295; Phillips v. Phillips, 12 Wright 178.
    The clear adverse use by the owners of the mill for over thirty years gives a right: Seibert v. Levan, 8 Barr 383 ; Esling v. Williams, 10 Id. 126 ; Strickler v. Todd, 10 S. & R. 69.
    The Statute of Limitations runs against the grantees of the state: Evans v. Erie, 16 P. F. Smith 228.
   Chief Justice Agnew

delivered the opinion of the court, January 2d 1877.

The foundation of the title of the plaintiff was a contract between the state through the Board of Canal Commissioners, and David Townsend. The board by a resolution directed the superintendent of the Beaver Division of the state canal to make a waste-weir in the canal of certain dimensions for the passage of water to Townsend’s Stone Mill, on condition that Townsend should by a written agreement authorize the Beaver Falls Water Company at Fallston, to raise their dam to a certain requisite height. The reasons for the contract are set forth in a preamble to the resolution, and they display the consideration proceeding from Townsend. A state dam constructed below flowed back the water of the Beaver upon the mills of the water company at Fallston making it necessary for them to raise their works and dam. This they could not do without the consent of Townsend, who was a riparian owner and whose dam and works would be affected. Townsend gave his consent, thus relieving the state from embarrassment, and the water company from great loss. The wasterweir was therefore accorded to him in consideration of his consent, and release of his own damages. The contract was carried into execution, the waste-weir made and permitted to remain for a period of about forty years. The contract was an existing one, when the state transferred the canal to the Erie Canal Company under the Act of 7th March 1843, Pamph. L. 36, and therefore fell directly within the terms of the 17th sect, of that act, binding the canal company for all contracts theretofore made for the grant or lease of water privileges. Hence it is quite immaterial to discuss the power of the state herself to abandon the canal and defeat the privilege. She always recognised the contract, and her grantee was bound to do so by the charter.- The power of the canal company to abandon the canal without the consent of the state depends on the terms and nature of the charter. The charter contemplated no such power. It was perpetual until a resumption of the canal by the state, under the reservation of this 'right in the charter. This reserved right was afterwards released by the state for a valuable consideration. See Act of 8th May 1855, Pamph. L. 518.

The grant of the charter was for a public purpose, the transportation of freight and passengers by canal and slackwater navigation. This public benefit brought the canal into existence, and justified the taking of private property for the public use. So long, therefore, as the company was able, it was bound to keep up the canal and works for the use of the public; and while this ability continued, Townsend and his assigns were entitled to the waste-weir, and the use of the water flowing through it. But with the loss of ability to perform this public duty, came a new condition of affairs. The law then stepped in and permitted a judicial sale in due course of procedure, of the property of the insolvent corporation for the payment of its debts. What the corporation could not do the law brought about. Hence, a sheriff’s sale swept away the property of the company. Here we are confined by the finding of the facts in the court below to a very narrow compass, the writs, levy, and return of sale not being before us. It is found by the court, that the lands, locks and appurtenances became vested by sheriff’s sale, followed by other conveyances in the defendants, now the appellants. It is not said that the franchises were sold, and we presume they were not, as it is also said that the canal, as such, and for all purposes of navigation,, has been entirely abandoned; a fact inconsistent with the use of the franchise. The abandonment it seems took place in 1872, soon-after the sale. These facts indicate that the sale was made under the Act of 7th April 1870, 1 Br. Purd. 291, pl. 52. That act. allows a sale of the property of a corporation in one county alone, or the levy may extend to other counties. As we understand the facts stated, the property in Beaver county only was sold, vesting in the purchasers only a section of the canal, locks, &c.

Giving full effect to the sheriff’s sale, as probably vesting a title to the land in fee, according to Craig v. City of Allegheny, 3 P. F. Smith 477, and Haldeman v. Pennsylvania Railroad Company, 14 Wright 425, still the question remains whether the purchasers are not bound to recognise the nature of the subject of the sale, to wit, a canal and its works, and to take notice of the superior rights of third persons existing in full force at the time of the sale. They bought a canal bed through which the water was flowing to the mill of the appellee. The subject of the sale and.its incidents were visible, and the maxim of the law is caveat emptor. They saw, or might have seen the appellee in the use of the waste-weir and water flowing over it. They were put upon notice, and by inquiry might readily have learned the foundation of the appellee’s right — that it proceeded from a contract with the state, recognised by her until she transferred the canal to the company, which she bound to observe it. They knew, therefore, or ought to have known, that the company took subject to a superior right, which could not be extinguished by a sheriff’s sale. Though 'not an easement in the ordinary sense, this contract privilege was an encumbrance on the property of the company. The land in the hands of the company was necessary to fulfill the contract, and was therefore burdened with the duty of maintaining the flow of water, which was essential to the maintenance of the canal as well as the privilege of the. appellee. The duty of doing both rested on the the company by its charter.

The purchasers of the property at sheriff’s sale, therefore, took the land burdened with the superior right of the appellee to use the water at the waste-weir. Now, though the purchasers probably did not take the franchise, and were not bound to maintain the canal for public use, yet having bought subject to the superior right of the appellee to use the water at the waste-weir, they cannot stop the flow of water to the waste-weir to the extent of the privilege granted by the canal commissioners in 1834 and accepted by Townsend in 1835. To hold otherwise would be to declare that the purchaser of a subjected title with notice of the subjection stands on higher ground than the owner. It would defeat an acknowledged right by a sort of legal disintegration of the subject-matter of the sale, against the solemn contract of the state, which she carefully provided for and devolved upon her assignee in express terms. The Act of 1870 is anomalous, it is true, in allowing a piecemeal sale of property, which should remain a unit for public uses, but it ought not to be so interpreted as to do unnecessary injustice. Lex nemini facit injuriam. These purchasers, though perhaps not bound under this sale to maintain the canal have no right to prevent or impair the flow of the water so long as it will flow to the waste-weir for the use of the appellee.

Decree affirmed with costs to be paid by the appellants and the appeal dismissed.