author: Read, J. Agnew, J.

text:
    Forbes Street.
    1. By Act of June 16th 1836, commissioners were to set off and survey a tract adjoining Pittsburg, as a “ City District,” make a plan of it, locate and mark streets, &c., and return the plan to the Quarter Sessions, which being approved, the streets to be public highways. The streets, &e., Forbes street being one, were located, the plan returned and approved. By Acts of March 15th 1847, and April 5th 1849, when any street was to be opened, viewers were to assess damages and apportion them on lots benefited; but if there should be none such, the court might vacate such street or any part. Forbes street was ordered to be opened, but was afterwards vacated under Acts of 1847 and 1849. The Act of January 6th 1864, authorized streets, &e., to be opened and damages assessed to owners and on property benefited. Forbes street was opened. _ Held, that damages could not be assessed for improvements made on the location of the streets after the approval of the plan.
    2. The Act of 1864 authorizes owners to appeal from the viewers to the councils, and from them, to the Quarter Sessions, who should have power to hear evidence, modify, approve or quash the report. Held, that the Sessions might appoint an examiner to take testimony, but could not appoint a master to report his opinion as to a modification of the report, &c.
    3. The act did not contemplate that one person should assess damages.
    4. Filing the plan under the Act of 1836 was notice to owners of property.
    5. After the plan, Aiken sold a lot, describing it as bounded on Forbes street. This was not a dedication by him of his land covered by Forbes street.
    6. The Act of 1864 does not provide for damages for opening streets laid out and appropriated previously to the plan.
    7. Pittsburg City District, 2 W. & S. 320, conclusive.
    November 7th 1871.
    Before Thompson, C. J., Read, A&new, Sharswood and Williams, JJ.

      Certiorari to the Court of Quarter Sessions of Allegheny county: No. 43, to October and November Term 1871. In the matter of opening Eorbes street in the City of Pittsburg, and the assessment of damages therefor.
    On the 16th oí June 1836, an Act of Assembly (Pamph. L. 750) was passed directing that a tract of land adjoining the eastern side of the city of Pittsburg should be set off, defined by limits and surveyed (as in the act specified), as a city district of that city. The Court of Quarter Sessions of Allegheny county was to appoint three commissioners to survey and sét off the district, and to subdivide it into sections, to lay out a general plan of the district and survey, locate and mark on it such streets, alleys and squares as they should think proper, giving them such arrangements and dimensions as should in their judgment best meet the wants and convenience of any future population. When the commissioners should have made a map of the district, with the streets, lanes, alleys, &c., they were to file it with the Clerk of the Court of Quarter Sessions, who was to give public notice of the filing, so that any one injured might object. The court was to hear and determine any objections and make any alteration that'might be deemed proper, and direct the plan with such alterations as might have been made to be recorded, and thereafter the plan should be taken and allowed as a general plan for the district for the purposes contained in the act, and the streets, lanes and alleys so approved were to be deemed, adjudged and taken as public highways.
    On the 22d of March 1837, commissioners were appointed; they filed their report July 17th 1840; objections were filed to it; on the 19th of July 1841, the Court of Quarter Sessions decided that the Act of 1836 was unconstitutional, and made a decree refusing to direct the plan to be established or recorded. This decree was reversed by the Supreme Court, and the act declared valid (Pittsburg City District, 2 W. & S. 320); the record was remitted to the Quarter Sessions for further proceedings, and on the 19th of October 1843, that court finally approved and confirmed the plan, with certain alterations. This adoption- and approval was endorsed on the plan, but does not otherwise appear on the records of the Quarter Sessions. Forbes street was one of the streets laid out in the plan.
    On the 1st of March 1845, an act was passed (Pamph. L. 88) authorizing the councils of Pittsburg to admit any sections on the plan into the city, as an additional ward, when it should appear by an election that a majority of the freeholders and taxpayers should be in favor of such admission. In accordance with an election held in pursuance of this act, sections 39, 40 and 41 were admitted into the city as the 8th Ward by ordinance of councils passed December 4th 1846. This ^ward contained the part of Forbes street specially considered in this case. By another ordinance of councils, the streets, lanes and alleys in the 8th and 9th Wards of Pittsburg contained in the plan “ of the city district as- the same was determined, established and directed to be recorded” in the Quarter Sessions under the provisions of the Act of 1836 were “ declared to be opened as a part of said general plan for the uses and subject to the regulations and exercise of powers declared by said law.”
    A supplement to the Act of 1836, passed March 15th 1847 (Pamph. L. 376), directed the viewers appointed under that act, in opening any street in the plan of the city district, to take into consideration the advantages accruing to the petitioners for damages, and to ascertain, as far as possible, all owners who might receive any benefit to their property adjacent to such street, and apportion the amount upon such owners fairly and equitably; and if in any case they should find that the amount of damage could not be equitably assessed on adjacent property, they might direct that an amount not exceeding one-fourth of the whole sum be paid by Allegheny county, subject to the approval of the court. By another supplement passed April 5th 1849 (Pamph. L. 342), it was enacted that if the viewers should report that they could not find property on which they could equitably assess the damages, or three-fourths of the same, the court might vacate the street or any part of it, and the viewers might assess all property that might be benefited, whether adjoining the street or not.
    By an act passed March 30th 1855 (Pamph. L. 152), three commissioners were appointed to relocate certain streets in the city district, so as to conform to the shape of the ground and public convenience, and return a plan of their location to the Quarter Sessions, which should be taken as part of the original plan of the district unless excepted to after notice. Upon exceptions the plan might be altered or approved by the court and either party might remove the proceedings to the Supreme Court whose action should be final.
    On the 21st of January 1860, John Aiken presented a petition to the Quarter Sessions, representing that Forbes street had been laid out on the “ City District Plan,” 60 feet wide, extending wholly on his land, 206 feet east from Marion street, and taking “in its course a two-story brick dwelling-house;” that the streets on the plan had been declared open by ordinance of councils of February 2d 1847; that on the 8th of May 1847, on his application the court appointed viewers to assess his damages; that the viewers assessed his damages at $2500 and reported that there was no property adjacent benefited thereby on which the damages or three-fourths could be assessed; and prayed that Forbes street, so far as it passed over his land, should be vacated.

      On the 7th of March 1860, the court decreed the vacation of Forbes street where it passed over Aiken’s land, as set out in his petition.
    Another act relating to the streets, &c., of Pittsburg, was passed January 6th 1864 (Pamph. L. 1131). Section 1 authorized the councils to lay out and open new streets, &c., to widen, straighten and extend those already laid out or opened, and to collect the value of property taken or damages done to property thereby, by assessment on property benefited by the improvement; before any street, &e., should be opened for public use the damages to be first ascertained and paid.
    Section 2 directed that when the councils desired to lay out, open, widen, &c., any street, &c., they should, by ordinance, fix the location, breadth and length of the same, and appoint three viewers to view the premises, appraise the damages and make the assessments.
    Section 3 directd that after notice the viewers should hear the allegations and evidence of the parties claiming damages, and having ascertained the whole amount of damages, they should assess the same on the properties to be benefited by the improvement, make a plot of the proposed improvement showing the location, size, &c., of each property damaged or benefited, with a statement of the amount of damages allowed and the assessment in each case. After notice and opportunity to each owner to see the plot and statement, the viewers should hear and consider all complaints and evidence and make any modifications, if necessary, and make report to the councils, accompanied .by their plot, stating the aggregate amount of damages, allowance to each claimant, describing property assessed, &c.
    Section 4 required the councils to hear appeals or further complaints against the report of the viewers, with power to send the report back for further action, or quash the proceedings; but when finally approved by the councils the approval should be conclusive, with the proviso that within ten days after such approval any person interested, and believing injustice had been done him, might petition the Quarter Sessions, setting out the facts, and upon notiqe of such petition, the clerks of councils should certify to the court all the papers and proceedings in the case, court might hear evidence, modify, correct and approve the report, quash the proceedings or appoint new viewers.
    On the 25th of May 1868, the councils ordained “that Forbes street from Boyd street to Seneca street be opened in accordance with the ‘ City District Plan,’ ” and they appointed viewers “ to award damages and assess the benefits arising therefrom.” The viewers reported to the councils that persons named were entitled to compensation for damages for the sums respectively mentioned in their report. Amongst the rest were

      Mrs. Seitz, one two-story brick house .... $ 2,200.00
    56 ft. by 230 ft. on Stevenson street, $90 per ft. . . 5,040.00
    $ 7,240.00
    Samuel Kier& Son, lot 65J ft. by 230 ft., at $90 . . $ 5,895.00
    Buildings.............. 10,800.00
    Removing machinery.......... 2,500.00
    $19,195.00
    John Aiken, one old brick house...... $ 900.00
    Lot 48 by 103 ft., at $50 . . -..... 2,400.00
    $ 3,300.00
    James McGinnis, 12 by 103 ft.......$ 600.00
    3 by 103 ft., east side Marion, at $50 . . . . 150.00
    $ 750.00
    The whole amount of damages assessed was $44,785.
    After exceptions to the report, the councils finally confirmed it and Seitz, Kier, Aiken and McGinnis petitioned the Court of Quarter Sessions to direct the clerks of the councils to certify the papers and proceedings to the court, and that the court would thereupon take such action as they might think right, &c.
    The court made the order prayed for, and on the 6th of November 1869, on motion of J. F. Slagle, Esq., solicitor “ for the city of Pittsburg, Thomas MacConnell, Esq., is appointed commissioner to take the testimony offered by the parties interested in the above case in relation to the matters at issue therein and report the same to this court, with his opinion thereon as to such modification of the report of the viewers as should be made, if any, and the form of an order to be made by the court, notice of the time of hearing to be given,” &c.
    The commissioner heard a very large amount of testimony, which he returned with his report. In addition to matters hereinbefore stated, he reported, as to Aiken’s case, that he had owned a large piece of ground, and in August 1858 conveyed a lot out of it to John A. Kercher, part of the description of the lot being “southwardly 120 feet to Forbes street, thence along Forbes street 41 feet 2 inches,” &c., and that this lot sold Kercher abutted on the land for which Aiken was claiming damages. The commissioner was of opinion that Aiken, in his deed to Kercher, having recognised Forbes street as one of the boundaries of lot, thereby dedicated his interest in Forbes street to the public, and was estopped from claiming damages for its opening. He was further of opinion, that if the vacation of Forbes street in 1860 had the effect of revesting the title, it passed to Aiken’s grantee, and not to Aiken. He therefore reported that he was not entitled to any damages. But in order that the court might be able to make a final decree on his report, in case he should be mistaken in this opinion, he assessed to Aiken damages to the amount of $4500, of which $500 were for this building. As to McGinnis’s claim, he reported that he had made conveyances of lots, recognising Forbes street as their boundary, and he was therefore entitled to no damages,* but for the same reason as in Aiken’s case, assessed his damages at $1050. As to the Seitz claim, he reported that the house which was included in the assessment of damages had been built before the “ City District Plan” had been made. He assessed the damages in this case at $10,090. As to the Kier claim, he reported that his land occupied by Forbes street had on it a large amount of improvements, consisting of valuable buildings and machinery, put on after the approval of the “ City District Plan.” He reported as his opinion that “ the date of the passage of the ordinance to open the street is the time when it was made certain that it would be opened; that until then the ground remained the property of the owner for all purposes,” and that Kier was entitled to be paid for his improvements.
    In this case he made an alternative assessment as follows:—
    “ On the basis of Mr. Kier being entitled to damages for the ground and buildings as they stood at the time the ordinance for the opening of Forbes street was passed, I assessed his damages as follows:—
    Lot sixty-five and one-half feet by two hundred and thirty feet ....... $9,170.00
    Pottery, &c. ........ 80,000.00
    In all . . . . $39,170.00

      “ If he is only entitled to damages for the ground and the buildings which were on the ground at the date of his purchase, I assess his damages as follows:—
    Lot sixty-five and one-half feet by two hundred and
    thirty feet ....... $9,170.00
    Buildings........ 6,500.00
    In all . . . . $15,670.00
    “ In case this last assessment is established, I think Mr. Kier ought not to be charged for any benefits, because I think the injury which the opening of the street will do to the buildings on the remaining ground will overbalance any benefit that the opening will be to the ground itself.

      “ I have made three different assessments of benefits, and report them in three different separate columns.” * * *

      The first of these assessments included damages to Aiken, McGinnis, Seitz, Kier, damages reported by the viewers and not appealed from, and the costs of the proceeding. The total-amount was $70.886.
    The second assessment omitted Aiken and McGinnis, and amounted to $65.336.
    The third assessment omitted Aiken, McGinnis and damages' for Kier’s improvements. The total amount was $41,836.
    In assessing benefits he increased the amounts reported by the viewers proportionably with the increase of the amount of damages ascertained by him, and accompanied his report with three schedules, showing the amounts assessed respectively on a very large number of persons,- amongst whom was William C. Miller. His several assessments were $2347.01, $2205.28, $1420.86.
    The second schedule assessing benefits was on the basis of the exclusion of damages to Aiken and McGinnis. Kier, Aiken, McGinnis, Seitz and Jane Magee filed exceptions with the commissioner to his report. He overruled all the exceptions, and returned his report as prepared, and the exceptions to the court.
    The City of Pittsburg, William 0. Miller, Jane Magee, Kier, McGinnis, Aiken and Seitz filed exceptions in court to the report.
    After hearing the exceptions the court delivered the following opinion:—
    “ The commissioner appointed in this case has furnished us with a very full and satisfactory report, in which he has presented, with great ability and clearness, the several questions raised by the testimony.
    “After a careful examination of the report and accompanying testimony, aided by the research and arguments of counsel, we have reached the same conclusion as did the commissioner.
    “ In doing so, however, we do not find it necessary to decide that the act providing for the location and survey of the ‘ city district’ is unconstitutional. As to that, we express no opinion. Under the testimony a large margin is afforded in estimating damages, particularly in the case of Samuel M. Kier; but we are of the opinion that the finding in that case of the commissioner is fully sustained by the weight of the evidence. In addition to the damages awarded by the commissioner to Mr. Kier, he claims a large sum of damages, resulting from the interruption of his pottery business.
    “ The Act of Assembly under which this proceeding is held, provides that a true and conscionable appraisement of the damages shall be made, taking into consideration in said appraisement the probable advantages and benefits, as well as disadvantages, which any owner or owners will be likely to sustain by reason of the proposed improvement. Speculative damages are not contemplated by the act. And we are of opinion that the finding of the commissioner embraced everything that is not of that character, and nothing more. The claim of Mr. Kier for damages, in addition to those found by the commissioner, is therefore disallowed. After the commissioner’s report was filed, and while exceptions thereto were under consideration by the court, one of the appellants, James McGinnis, to whom the commissioner awarded no damages, claimed the right to discontinue his appeal, and accept the damages awarded him by the viewers appointed by the city councils. We are all of the opinion that he had no such right. If we were to hold that a party can appeal from the award of the viewers appointed by councils, and take his chance of a more favorable award by the commissioner, or by other viewers appointed by court, and then discontinue his appeal as soon as he discovers the second award is less favorable to him than the first; it would encourage litigation, and lead to great uncertainty and confusion in adjusting claims for damages arising from the opening of streets.
    “We hold, therefore, that when a party appeals from the action of councils, and pursues his appeal in court until his claim has been passed upon by a commissioner, or by other viewers appointed by court, he cannot discontinue his appeal at pleasure. Our practice in civil cases forbids the discontinuance of a cause, or the taking of a nonsuit, after the verdict of a jury has been announced. We think a similar rule should be applied in cases like the present.
    “ The form of decree recommended by the commissioner is approved, and decree made accordingly.”
    The decree, January 31st 1871, was—
    “ 1. John Aiken, one of the appellants, has not sustained and will not sustain any damages by the reason of the opening of Forbes street, which he is entitled to have paid him, and therefore his claim for damages is hereby dismissed, and the report of viewers is hereby modified accordingly.
    “ 2. That James McGinnis, one of the appellants, has not sustained and will not sustain any damages by reason of the opening of Forbes street, which he is entitled to have paid to him, and therefore his claim for damages is hereby dismissed, and the report of the viewers is hereby modified accordingly.
    “ 3. That Louisa Seitz, Daniel Seitz aud George Seitz, joint appellants, have sustained or will sustain damages jointly, by reason of the opening of Forbes street, to the amount of $10,090.
    “ 4. That Samuel M. Kier, one of the appellants, has sustained or will sustain damages-to the amount of $39,170.
    “5. That the costs of this proceeding, $1776, be paid out of the benefits assessed in this case.
    “ 6. That the assessment of benefits made and reported by the commissioner, contained in the second column attached to his report, amounting to $65,336, be adopted and confirmed as the true and proper assessment of benefits in this case, and the report of the viewers is hereby modified accordingly.
    “ 7. That the report of the viewers, so far as the same is not altered, modified or changed by the foregoing parts of this decree, is confirmed.”
    Aiken and William 0. Miller removed the proceedings to the Supreme Court by certiorari, and assigned the decree of the Court of Quarter Sessions, for error.
    For certiorari: Miller & Winston, for Aiken.

      C. Magee, D. D. Bruce and W. D. Moore, for Miller.
    Contra: S. Schoyer Jr., and G. Shiras, Jr., for Kier.

      S. H. Geyer, for Seitz.

      J. F. Slagle, for City of Pittsburg.
   The opinion of the court was delivered, May 13th 1872, by

Read, J.

By an Act passed the 16th June 1836 (Pamph. L. 750), a tract of land adjoining to and bounded in part by the eastern bounds of the city of Pittsburg, was directed to be set off, defined by limits and surveyed, in the manner and for the purposes therein specified, as a city district, for the said city commissioners appointed under said act, were to make a subdivision of the same into sections, and to make and lay out a general plan of the said district, to survey, locate and mark therein, such streets, alleys and squares as they shall think proper, and shall cause to be made a correct map or plan of the same, and return it to the Court of Quarter Sessions of Allegheny county, and when established, the streets, lanes and alleys so approved, shall for ever thereafter be deemed, adjudged and taken as public highways.

By an act passed the 1st of March 1837, the borough of the Northern Liberties of Pittsburg, was added to and incorporated with the city of Pittsburg, and the boundary lines of the city district of the city of Pittsburg were extended, and the provisions of the preceding act were extended to and made part of the act, and commissioners were required to be appointed, with all the powers conferred upon the commissioners designated in the Act of 1836. Commissioners appointed under these acts performed all the duties imposed upon them by their provisions, and made a report to the Court of Quarter Sessions, consisting of a map or plan of said city district, which was duly filed and presented to the court, who, after hearing the parties, adjudged said act to be unconstitutional, and refused to adjudge and determine that the said plan should be established, and refused to order the same to be recorded. The record of this proceeding was removed by certiorari to the Supreme Court, who decided the acts to be constitutional, and reversed the decision of the court below, and ordered the record remanded to the court below, in order that it may proceed in the matter as required by the Act of Assembly, and the record was remitted for further proceedings. The plan was finally approved and confirmed by the Court of Quarter Sessions, with certain alterations and modifications, on the 19th October 1843. The case, under the title of “ In the matter of the district of the City of Pittsburg” is reported in 2 Watts & Serg. 320, and the very able opinion of Judge Kennedy gives a full statement of the provisions of the Act of Assembly and the proceedings under it.

By an Act of the 1st March 1845 (Pamph. L. 88), provision is made for an election by the freeholders and tax-payers of sections applying to be admitted into the city on the question of admission, and if the majority of votes shall be for admission, the select and common councils of the city of Pittsburg are authorized to admit the same as an additional ward of said city. Under this provision, by an ordinance of the 10th December 1846. sections 39, 40 and 41 were admitted as a ward of said city, designated as the Eighth Ward, and section No. 25 was also admitted as a part of the Seventh Ward of said city.

By a supplement to the Act of the 16th June 1836, passed 15th March 1847 (Pamph. L. 376), the viewers appointed under said act, in the opening of any street in the plan of the city district aforesaid, are to take into consideration the advantages that may accrue to any person petitioning for damages, and to ascertain as far as possible the names of all owners who may receive any benefit or increase of value to their property adjacent to said street, and apportion the amount thereof upon each of the said owners fairly and equitably, and in case the said viewers shall in any instance believe that the amount of said damages cannot equitably be assessed upon the adjacent property and so certify, then they may direct that an amount not exceeding one-fourth of the whole sum shall be paid from the treasury of Allegheny county, the whole proceedings to be subject to the approval of the court, as in other eases of road damages-. Provision is made for the damages so apportioned, remaining a lien upon each lot to the extent of the assessment, and charge thereon, and if not paid within one year after confirmation by the court, the lot may be levied upon and sold, and the moneys so assessed and paid into the city treasury shall be paid over to persons entitled thereto.

By the fourth section of an act passed 5th April 1849 (Pamph. L. 342), it was enacted that where the viewers have certified, or may certify, and report to the court, that they cannot find property benefited by the opening of any such street, and cannot equitably assess the damages, or three-fourths of the same, as provided by the Act of 15th March 1847, the court is empowered to vacate the street or any part of it, and the viewers shall take into account and assess all property that may be benefited whether adjoining such street or not.

By an act to authorize the re-location of certain streets in the city district of Pittsburg, passed 30th March 1855 (Pamph. L. 152), three commissioners were appointed to relocate the streets in the city district of Pittsburg, lying south-east of Bates street, and north and east of Frazer and Halket streets, so that they may conform to the shape of the ground, and answer public convenience with due regard to private property ; said commissioners to return a map or plan of the location made by them to the Court of Quarter Sessions of Allegheny county, which shall be deemed and taken to be a part of the original plan of said district, unless after the notice prescribed by the act authorizing said plan, it be excepted to by parties interested in the land occupied by said streets, and if any exceptions be filed, the said plan may be altered or approved by said court, with the right to any' party to remove the proceedings to the Supreme Court of the proper district, whose action thereon shall be final.

An act concerning streets and sewers in the city of Pittsburg was passed the 6th January 1864 (Pamph. L. 1131), under which the present proceedings in relation to Forbes street have been conducted.

By two supplements to the acts incorporating the city of Pittsburg, passed the 6th April 1867 (Pamph. L. 846), and the 1st April 1868 (Pamph. L. 565), the city was enlarged by the annexation of the borough of Lawrenceville, and the townships of Pitt, Oakland, Collins, Liberty and Peebles, which were consolidated with the same and together formed the city of Pitts-burg, and all laws and ordinances relating to the city of Pitts-burg which were in force at the time of the passage of the aforesaid Act of April 6th 1867, and which have not been subsequently repealed or supplied, were declared to be and remain in full force, and applicable to said city as consolidated by said act.

On the 25th May 1868, the city councils passed an ordinance that Forbes street, from Boyd street to Seneca street, be opened in accordance with the-city district plan, and appointed viewers in accordance with the Act of Assembly, (approved January 6th 1864, to award damages and assess benefits arising therefrom. The viewers, proceeding in the manner prescribed by the act, made their report to councils, which was finally acted upon and approved by them, and within the time fixed by the act several persons interested presented petitions to the Court of Quarter Sessions of Allegheny county, setting forth the facts in their cases, and that they verily believe that injustice has been done them by the report of said viewers, and the clerks of councils certified to the said court all the papers and proceedings in the case. The act then says: and thereupon the said court shall take such action in the premises as they may think right and proper, and shall have power to hear evidence to modify, correct and approve said report, or quash the whole proceedings, or to appoint new viewers with the like power to modify, correct and approve the report or quash their proceedings.”

The power thus given is specific. It is to hear evidence for the purpose of acting on the report, or to appoint new viewers — which the court did not do. In hearing the evidence the court had the power to appoint an examiner to take the testimony, but no authority to appoint a master, whose report and opinions occupy thirty-two printed pages, and formed the entire ground-work of the decree of the court. The master exercised his own judgment in fixing the amount of damages done to property, and in the assessments upon properties benefited by the improvement — a grant of authority to a single individual never contemplated by the legislature. The proceedings must, therefore, be reversed; but as there is an evident misapprehension in the mind of the court, as well as that of the master, as to the Act of June 16th 1836, it will be proper to consider its provisions as applicable to the case before us.

We must express great surprise at the statement by the court in their opinion, p. 41, “ after a careful examination of the report and accompanying testimony, aided by the research and arguments of counsel, we have reached the same conclusion as did the commissioner. In doing so, however, we do not find it necessary to decide the act providing for the location and survey of the ‘ city district’ is unconstitutional.” A singular expression to be used in relation to an act which this court, in 2 W. & S. 320, thirty years before, decided to be constitutional.

This act in directing the laying out of the city district made two classes of streets: 1. Such streets as the commissioners thought proper to survey, locate and make in the general plan of the said city district. 2. Such streets which, previous to the making of the said plan, had been laid out and appropriated by private persons, or otherwise, for public use, or for the use of the owners of lots fronting thereon, which are directed to be adopted, inserted in and made part of the said general plan.

Provision is made for the owner of any ground through which any street of the first class may be opened, obtaining indemnification for any injury he may sustain thereby; but there is no provision made for damages occasioned by the opening of streets of the second class.

The leading object of laying out the city district, which was intended finally to become a part of the city of Pittsburg, was that the owners of ground within it should know what portion of their property would be taken for streets and other public purposes. The portions laid out for streets were to be deemed taken and adjudged as public highways. If buildings were erected on ground to be taken for streets of the first class, previously to the plan and survey, then they were to be paid for as well as the ground taken when the streets were opened; but if built after the survey and plan, of which map or plan all the freeholders owning property in the said district had notice under the provisions of the 6th section of the Act of June 16th 1836, then it is clear such buildings were not to be paid for, for otherwise the map or plan would be entirely nugatory. The case of Freeman Street, 17 Wendell 649, cited by Judge Kennedy, 2 W. & S. 325, is good authority upon this point.

The map or plan was approved and confirmed, with certain alterations and modifications, on the 19th October 1843, and, as we have seen, certain sections of it were admitted into the city of Pittsburg as the Eighth Ward, and part of the Seventh Ward. This map or plan has been distinctly recognised by various Acts of Assembly, and forms the basis of very valuable improvements in the city of Pittsburg, and it is too late in the day to take technical objections founded upon the looseness of the docket entries of the court.

When, therefore, an individual erects a pottery, or any other building or improvement, on Forbes street, and the street is ordered to be opened, he cannot claim damages for its removal, nor for any injury caused to the remaining works by such necessary removal or destruction. His damages will be limited to the value of the ground taken for the street, and this is strictly equitable, as it diminishes the amount of benefits to be assessed upon other owners of property.

So the question of dedication in all the authorities in this state really applies only to streets of the second class, and has no application to streets of the first class, which in one of the cases creates the absurdity of dedicating by inference a house, as well as the ground on which it stands, to the public.

In their action upon the opening of Forbes street, the court below must consider as established,

1st. That the Act of 16th June 1836 is constitutional.

2d. That the map or plan filed in the office of the clerk of the Court of Quarter Sessions was fully established according to law.

Decree reversed, and record remitted for further proceeding, according to law.

Agnew, J.

Without dissenting generally, I cannot concur in that part of the opinion which denies the power to appoint a commissioner to 'aid the court by examination and report. I consider this appointment as merely ancillary and made under the general powers of the court, and his report is merely advisory, and not binding like that of a statutory viewer till set aside in due course of procedure.


source: Caselaw Access Project

author: by Agnew, J.

license: Public Domain

text:
    Zug et al. versus Commonwealth.

      • 1. Under an Act of Assembly, commissioners marked high and low water lines on the Allegheny, at Pittsburg. Zug erected buildings and cast cinders, &c., into the river between these lines. On an indictment at common law against Zug, the jury by special verdict found that the buildings, cinders, &c., did ‘‘ not interfere with the navigation of the river at any stage of water.” Held, that he was not guilty of nuisance.
    2. Between high and low water the owner of the soil may use the river for his private purposes if he do not interfere with the rights of the public.
    3. Wainwright v. McCullough, 13 P. F. Smith 66, distinguished.
    November 10th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Quarter Sessions .of Allegheny county: Of October and November Term 1871, No. 57.
    Christopher Zug and Charles Zug were indicted in the Court of Quarter Sessions of Allegheny county for nuisance. The first count charged that they had cast into the Allegheny river, “ an ancient and common highway, large quantities of cinders, slag and rubbish, * * * by means whereof the navigation and
    free passage” along the river “has been and is greatly obstructed, so that the citizens of the Commonwealth navigating,” &c., cannot pass and repass in so free a manner as they ought and had been used to before the obstructions, “ to the great damage and common nuisance of all the citizens of the Commonwealth navigating, to the great obstruction of trade, &c., upon said river and against the peace and dignity of the Commonwealth,” &c.
    The second count charged that the defendants “ unlawfully, &c., did build, erect, &c., in the said river,” &e., certain frame buildings and with “force and arms” maintained and continued the1’ buildings, and that the navigation of the river became thereby obstructed, &c., so that the citizens of the Commonwealth could not navigate, &c., the river so freely and uninterruptedly as they had the right and used to do, to the great damage, he., concluding as the first count.
    The defendants pleaded “ not guilty.”
    The jury by a special verdict found that “the defendants were the owners and in possession of a lot or parcel of land, situate in the city of Pittsburg, in the county of Alleghany, and bounded by Twelfth, Etna and Thirteenth streets and the Allegheny river, on which is erected a rolling-mill, &c.; that on the 16th day of April 1858, the legislature passed ‘ An Act to establish high and low water lines in the Allegheny, Monongahela and Ohio rivers, in the vicinity of Pittsburg, in Allegheny county,’ which act is made part hereof; that in pursuance of said act, the District Court of Allegheny county made a final decree, establishing said lines; the record of said proceedings and the diagrams therein are made part of this verdict; that the defendants have maintained and used, in connection with their said rolling-mill, certain buildings, erected between the high and low water lines established as' aforesaid, to wit: One iron-clad stable, a frame shed for storing brick and clay, and a covered building of a height of about 35 feet, and used in connection with a coal railway for supplying coal to said rolling-mill, said buildings being connected together, and commencing feet from high-water line, and extending at their greatest breadth towards low-water line 45 feet, and at their least breadth 25 feet towards said low-water line from said point of beginning, and their total length measuring along the river 223 feet; that outside of said buildings, and next to the river, there is a piece of ground of from 10 to 12 feet in width, used by defendants as a cartway, the descent on the ground from high-water line to the outside of said cartway is not more than two feet; from the outside of said cartway to the river the descent is abrupt; that defendants have', from time to time, placed cinders and slag from their said mill upon their said land, between the said high and low water lines, part of which they removed; but defendants’ said deposits of cinders and slag have been and are below grade fixed by the city of Pittsburg for Tenth and Twelfth streets, which terminate in the Allegheny river, and if a grade should be established at the defendants’ property like that at Tenth street, it would require considerable filling up yet; that the aforesaid buildings, so erected and maintained by defendants between low and high water lines, and the cinders and slag so deposited by them between said lines, have not and do not interfere with the navigation of said river at any stage of water.”
    On this verdict the court (Stowe, J.) entered a judgment of guilty, and sentenced the defendants to pay a fine of $5 and the costs of prosecution.
    The Act of 1858 recites:—
    “ Whereas, the lines of lands on and along the shores of the rivers at and near the city of Pittsburg, in the county of Allegheny, have never yet been clearly ascertained, and as it is important to the owners of such lands, the persons navigating the waters of, and the corporations adjacent to such rivers, and to all parties interested, to know and have their several rights and privileges in extension and limitation ascertained and defined.”
    It requires the District Court of Allegheny county to appoint three commissioners to examine the shores of Allegheny, Monongahela and Ohio rivers, and mark the lines of ordinary low and high water along those rivers, such lines “ to be laid out along said shores in such manner and position as will most perfectly secure and perpetuate the navigable channel of said rivers and best promote the safety and convenience of vessels, &c., navigating the same, and as will be most suitable in all respects for the general benefit of the public at large.”
    The commissioners were required to make a correct map of their work and return it to the District Court, and when approved by the court, it should be recorded and the lines “shall for ever after be deemed, adjudged and taken firm and stable for the purposes aforesaid.”
    Entering the judgment of guilty was assigned for error by the defendants, on removing the record to the Supreme Court by writ of error.

      M. W. Acheson and T. M. Marshall, for plaintiffs in error.—
    The obstruction of the navigation is what is the subject of an indictment : Angelí on Water Courses, sec. 55, 562; Whart. Am. Crim. Law, sec. 2408. Between the natural high and low water mark the riparian proprietor is the absolute owner of the soil subject to right of navigation : Railroad Co. v. Trone, 4 Casey 206; 3 Kent 562, 563, 571; Naglee v. Ingersoll, 7 Barr 201; Frankford v. Lennig, 1 Am. Law Reg. 357; Arnold v. Mundy, 1 Halstead 1; Dutton v. Strong, 1 Black 31; Angell on Tide Water 196.

      W. B. Rodgers and R. Woods, for Commonwealth, defendant in error.
    The absolute ownership of land on navigable rivers extends only to high-water mark: Bailey v. Miltenberger, 7 Casey 37; The Commonwealth v. Fisher, 1 Penna. R. 462; Wood v. Appal, 13 P. F. Smith 210; Wainwright v. McCullough, Id. 66; Tinicum Co. v. Carter, 11 Id. 21. Actual obstruction was not necessary to justify the judgment: Resp. v. Caldwell, 1 Dallas 150.
   The opinion of the court was delivered, November 20th 1871,

by Agnew, J.

If this case was intended to test the right of a party to obstruct navigation between high and low water lines, by means of buildings or deposits upon the shore, its selection has been inappropriate, as the facts found in the special verdict tend to negative the existence of any obstruction. The verdict makes the diagram filed by the commissioners under the Act of 16th April 1858, to establish high and low water lines in the Allegheny, Monongahela and Ohio rivers, a part of the finding. By that diagram it distinctly appears, that the land upon which the Messi’s. Zug erected their buildings and laid out their outside cartway lies upon the natural hank. The verdict finds that the descent of this ground, from the high-water line marked by the commissioners to the outside of the cartway, is not more than two feet, and that from the outside of the cartway toward the river the descent is abrupt. It is manifest from the findings that the erections are not on the shore. The verdict also finds that the deposit of cinders and slag between the high and low water lines is not up to the grade of the streets of the city terminating in the river, while it fails to find that these deposits were made upon the natural shore. The finding then concludes with this controlling fact, to wit: “ that the aforesaid buildings so erected and maintained by defendants, between high and low water lines, and the cinders and slag so deposited by them between said lines, have not and do not interfere with the navigation of said river at any stage of water.”

The effect of all the. conclusions of fact clearly is, that the erections and deposits complained of in the indictment, are not obstructions to the navigation. The learned judge who pronounced the sentence evidently founded his judgment on the fact that these erections and deposits were obstructions to the navigation, and possibly the verdict may not have followed the evidence closely. But be this as it may, we can infer nothing contrary to the finding of the jury, and if the facts thus found do not constitute a nuisance we must give judgment accordingly. Failing to find that the obstructions set forth in the indictment (which is at common law) occupy the shore of the river, and finding that they are not obstructions to navigation at any stage of water, the verdict leaves nothing for the law to adjudge to be a nuisance. Non constat that these erections and deposits are not placed where they may lawfully be, while it does appear affirmatively they are not injurious to the rights of the public.

This is not the case of an ordinary highway, upon which it is unlawful to build; but of a species of property which the owner may use for private purposes, provided his use do not interfere with the rights of the public. The rights of an owner between high and low water marks differ essentially from those of an owner of the soil over which a public highway passes. There is no highway for travel on/oot, by horse or carriage, along the shore of a navigable stream, by force merely of the public right of navigation. A stream, at high or low water stage, is a highway for boats or other craft; and as to these the verdict strips the alleged obstruction of any illegal character. The operation and effect of the proceedings under the Act of 1858 are not fairly raised in this case. Had the buildings and deposits been found to.be injurious to, and to interfere with the right of navigation, perhaps a different question might have arisen, upon which, however, we express no opinion. The case of Wainwright v. McCullough, 13 P. F. Smith 66, referred to by the learned judge below, does not touch this. It merely decided that the low and high water lines of the commissioners did not establish boundaries between individuals; either those running toward the river or those lying on the opposite sides of a channel of the river constituting a part of the public domain. They were intended to regulate the rights of public in respect to navigation, and to prevent private rights from the being exercised to the prejudice of the public interests. When a case shall arise, directly involving the effect to be given to the high and low water lines of the commissioners, we must decide it; but now we can only say that this case does not call for any opinion on that question.

Upon the facts set forth in the special verdict we must reverse the judgment of the Court of Quarter Sessions, and give judgment thereupon for the defendants; and order that they may depart from the court without day.


author: Thompson, C. J.

text:
    Pittsburg’s Appeal.
    Under 19th section of Act of January 6th 1864, relating to municipal Hens in Pittsburg, a judicial sale, if there be enough realized to pay such liens, divests them, and they are to be paid from the proceeds in preference to prior liens.
    2. The findings of an auditor are to be set aside only for clear errors of fact or law.
    3. The Act of January 6th 1864, section 19, construed.
    4. Allegheny City’s Appeal, 5 Wright 60; City of Pittsburg’s Appeal, 4 Wright 455 ; considered and distinguished.
    November 8th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the District Court of Allegheny county: No. 200, to October and November Term 1871.
    The proceedings in this case were upon the distribution of the proceeds of the sheriff’s sale of the real estate of Davis P. Hatch.
    The defendant’s real estate had been sold under judgments secured by mortgages, and after the payment of those liens the balance of the proceeds was brought into court and referred to F. M. Magee for distribution.
    It appeared that Samuel Stitt recovered judgment against Hatch on the 20th of February 1868, for $250.
    Samuel McKinley on the 12th of June 1868 entered a me«hanic’s lien for $702 against the property sold by the sheriff.
    Herlehy & Johnston on the 21st of August 1869, entered three mechanics’ liens, amounting together to $951.84, against the same property.
    The city of Pittsburg to November Term 1869, and January and April Terms 1870, entered eight municipal claims against the same property for paving, grading, &c., commenced at different periods, viz.: in June, August, September, November and December 1869, and in 1870. These liens were entered by virtue of the Act of January 6th 1864, Pamph. L. 1131.
    The 6th section of that act authorizes the councils of the city to grade, pave, &c., the streets, and collect the costs from property abutting on the streets.
    By section 19, “ The assessments authorized by this act shall be liens upon the properties assessed, from the commencement of the improvements, for which they were made, and shall, if filed within six months after the completion of said improvements, continue liens for five years, and be revived by a scire facias as other liens; if, on any sheriff’s sale, or other judicial sale, enough be not realized to pay off the lien, it shall continue to be a lien until the whole amount, with the costs, be paid in full.”
    In his report the auditor says: “* * * The claims of Herlehy & Johnston for plumbing, &c., were for work done after the completion of the houses, and of course date from the day the work was commenced, and are not reached by the fund in court. The buildings were commenced by Hatch in 1867. The lots on which they were erected were within the territorial limits of the late borough of Lawrenceville; they were commenced before consolidation with the city of Pittsburg was effected, long before the water and gas pipes were taken to that part of town, and before there was any reasonable probability that water and gas would be taken there soon. The plumbing work done by Herlehy & Johnston was, in the opinion of the auditor, an afterthought on the part of Hatch, and not on a par with work done and material furnished during the progress of the buildings.” * * *
    There were other claims made on the fund not necessary to notice here.
    After the payment from the funds, of city and county taxes, a municipal claim about which there appeared to be no dispute, costs and the expenses of the audit, there remained for distribution the sum of $2404.92. Of this the auditor awarded $1988.94 to the city of Pittsburg on account of their municipal claims, deciding “ that liens of this character are divested by a judicial sale of the property, so far as the money realized from the sale will pay the same.”
    The remainder of the fund, $415.98, he awarded to Samuel McKinley on account of his mechanics’ lien.
    Amongst others, Herlehy & Johnston filed exceptions to the auditor’s report:
    1. That the auditor had decided that their lien dated from the commencement of the work, and not from the commencement of the houses.

    2 and 3. That he had given priority to the municipal claims of the city of Pittsburg, and therefore awarded to the city $1988.94 in preference to preceding liens.
    On the hearing of the exceptions the court (Hampton, P. J.), without delivering an opinion, made the following decree:—
    “And now, September 80th 1871, the exceptions filed by Herlehy & Johnston in this case are sustained, and it is hereby ordered and decreed that of the amount awarded by the auditor to the city of Pittsburg, the sum of $446.75 be awarded to Samuel McKinley, on mechanics’ lien, No. 103, September Term 1868, and the sum of $951.84 be awarded to Herlehy & Johnston, on mechanics’ liens 56 and 57, November Term 1869, and all other exceptions are overruled, and the amount so awarded to the city of Pittsburg is reduced to the sum of $590.26.”
    The city of Pittsburg appealed to the Supreme Court, and assigned the decree for error.

      J. F. Slagle, for appellant.
    The Act of February 3d 1824, relating to municipal claims in Philadelphia, is similar to the Pitts-burg Act, and under its provisions it has been decided that such claims were payable from the proceeds of a judicial sale in preference to prior liens: North’n Liberties v. Swain, 1 Harris 113; Perry v. Brinton, Id. 202; Allegheny City’s Appeal, 5 Wright 60.

      Kerr & Guthrie, for appellees,
    cited City of Pittsburg’s Appeal, 4 Wright 455.
   The opinion of the court was delivered, January 9th 1872, by

Thompson, C. J.

I was greatly surprised at finding the decision in the appeal of the City of Pittsburg, 4 Wright 455, cited a s' authority in a case entirely outside of its circumstances. That decision was rested upon and under the provisions of an Act of Assembly of the 18th April 1857, entitled an act “ concerning the setting of curbstones and the paving of side-walks in the city of Pittsburg: Pamph. L. 1857, p. 240. To that act, with a simple reference to a section or two in the Act of 1858, on the same subject, considered as forming a system on the subject-matter of the act, does our opinion apply. It had no reference or express bearing on any of the enactments for grading and paving streets. The decision was predicated of the 8th section of the Act of 1857, which provides “ that the lien of such claim, (paving and grading side-walks), shall not be divested by any private or judicial sale, but shall remain a lien on the premises.” Paving and curbing side-walks was the-theme of the discussion at bar, and consequently was so the opinion subsequently delivered ; and if it has been held for anything else, it was a mistake, which we think even a cursory reading of it might have prevented.

I think we might complain without injustice, that the report of the auditor and the opinion of the court below are so abstract, that it is not easy to comprehend the views of either on the great question of the case, and with which they ought to have been especially familiar, being their local laws. We must take them as we find them, however.

The difference between the learned auditor and the court below was, whether the judicial sale of the premises in question on mortgage judgments divested the municipal liens on the premises entered subsequently. The auditor held that it did, and applied the money in court to these liens in preference to other prior liens. The court set aside the report of the auditor so far as this was concerned, and it is said on the authority of the case in 4 Wright, supra.

We must decide upon this contrariety of opinion by the provisions of the Act of 1864 exclusively, for on this point its provisions supersede all others, being the last, and also expressly providing a repeal of inconsistent acts and parts of acts.

The material provision in regard to the question in hand is contained in section 19th of the act, and is as follows.: “ The assessments authorized by this act shall be liens upon the properties assessed from the commencement of the improvements for which they were made, and shall, if filed within six months after completion of said improvements, continue liens for five years, and be revived by scire facias, as other liens. If on any sheriff’s sale, or other judicial sale, enough be not realized to pay off the lien, it shall continue to be a lien until the whole amount with the costs be paid in full.”

This is explicit language, and is in accordance with the practice, excepting in special cases in this Commonwealth. Generally judicial sales divest all liens. But the legislature in its wisdom thought proper to enact at least the equivalent of the provision contained in the Act of 1824, “ that the assessment should be and remain a lien until paid and satisfied,” by the clause quoted above, “ that if on any judicial sale enough was not realized to pay off the lien, it shall continue to be a lien until the whole amount shall be paid with costs.” This provision corresponds with our decision in 1861 upon the Act of 1827: Allegheny City’s Appeal, Tassey’s Estate, 5 Wright 60. We held that the words quoted, meant, that if enough to pay off the liens were not realized by the sale, the unextinguished balance continued- to be a lien. I have no doubt but this decision led to the terms used in the clause in the Act of 1864, which we have quoted. Neither of these acts mean that other and prior liens being first paid, and the balance being insufficient to pay the municipal claims, they will remain a lien. The words of the Act of 1864, like its predecessor, are too explicit for this, and plainly mean that if on any judicial sale enough be not raised to pay off the assessment-lien, not prior and other liens, then it, the balance, shall remain a lien. This accords with the decision in 5 Wright, supra.

This is complained of, and it does seem to militate against the maxim, prior in tempore, potior est in jure. But it ought to be remembered that these provisions are parcel of a system devised for the collection of taxes and assessments, in which the public is interested. Tax laws often disregard individual equities in favor of the public demands. It is a provision also, to relieve the public from contests about priority in distribution, which often vex the citizen and perplex the courts. The preference here noticed is but another form from that found in 4 Wright supra, and is regarded, if I comprehend the cases of Northern Liberties v. Swain, 1 Harris 113, and Perry v. Brinton, Id. 202, as all right under the Act of 1824.

It was argued, with much plausibility, that the words of the 19th section of the act, that the assessments mentioned “ shall be liens from the commencement of the improvements,” ex vi termini, imports that those prior in date must have priority in the distribution of the proceeds on a sale of the property. That result would follow under the general law of distribution. But here is a special provision, as quoted above, which controls the general law in its application to this particular case. It means something, and if that meaning be properly deduced from the words used, and not obnoxious to constitutional objections, it must have effect. We think that the meaning is what we have already assigned to the words, and that the provision from which a different meaning is sought to be deduced by the argument was introduced simply to define the duration of the lien. No doubt if not revived within five years the lien would be gone. That the public must look to. But it is solely a question of distribution we decide here.

Without entering upon a calculation to ascertain how this view would leave the claims of Herlehy & Jóhnston, supposing any mon ey might remain after satisfying the municipal claims, we cannot see on what grounds the á priori objection raised by the auditor that they had no liens at all was disposed of. These liens were for plumber’s work done and materials furnished within six months past, for and about the erection and construction of the buildings hereafter described.” They were not liens for repairs, alterations or additions, which might have saved them, but for work and materials furnished in the construction of the buildings. These are not equivalent provisions, and we could not possibly hold that materials furnished for repairs, &c., were to be regarded the same as if furnished in the construction of the buildings. The auditor found that the buildings had been finished long before the work, &c., done by Herlehy & Johnston was begun. We see no error in this finding on the evidence, and the result is, it could not legally be set aside by the cpurt.

It is only for clear error in fact or law that the finding of an auditor is to be set aside. Decisions to this effect are so numerous that I need not cite them. It would have greatly aided us, if the learned judge of the District Court had accompanied his judgment with his reasons. Taking the case as we have it, however, we think this another reason for reversing the decree of distribution in the case.

Now, to wit, January 8th 1872, it is considered and adjudged that the decree of the District Court be reversed and set aside, and that a formal decree be entered in the court below in accordance with the finding of the auditor, and that the costs of this appeal be paid by the appellees.


author: Sharswood, J.

text:
    Seibert versus Wise.
    1. No words in a will are to be rejected if any meaning can be assigned to them; they must be so construed as to carry out the testator’s intention, if it can be done consistently with the rules of law; if not, those rules override the intention.
    2. A devise was “ to my two nephews, to John * * *, the one-half part of the above-mentioned farm to be taken off the east end; the other half to Jacob * * *, share and share alike to hold to themselves and their heirs, the survivors or survivor of them for ever.” Held, 1. The words “ survivors or survivor of them for ever,” did not apply to “ heirs2. A survivorship between John and Jacob would be a devise over after a fee, and therefore could not stand as a remainder nor as an executory devise, being contrary to the rule against perpetuities. 3. The devisees took in severalty in fee.
    3. Jacob at the time of the devise had no children or issue: if “heirs” could be construed “ children,” he took an estate tail: — which would be destroyed by a deed, made by Jacob, to bar the tail.
    4. Oote v. Von Bonnhorst, 5 Wright 243 ; Taylor a. Taylor, 13 P. F. Smith 488, following Wild’s Case, 6 Reports 17, recognised.
    November 10th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 54, to October and November Term 1871.
    This was an amicable action of debt in which there was a case stated, Jacob Wise being plaintiff, and Christian Seibert defendant: the agreement was filed November 22d 1870.
    The following are the facts :—
    Jacob Wise (the elder), by his will dated May 6th 1839, and proved September 30th 1841, devised as follows:
    “ I give and bequeath unto my wife Barbara, all my real estate, being the tract of land I now reside on, containing about one hundred and twenty acres, with all the buildings and improvements, so long as she lives and remains my widow; and after her decease and marriage, I will and bequeath my said real estate to my two nephews, namely: to John Wise, son of my brother John, I give the one-half part of the above-mentioned farm, to be taken off the east end; the other half to my nephew Jacob Wise, son of David Wise, share and share alike, to hold to themselves and their heirs, the survivors or survivor of them for ever.”
    The widow of the testator died unmarried; John Wise, one of the devisees, entered into possession of the east half of the land and still occupied it; he had issue two children. Jacob Wise, the other devisee, entered into possession of the other half and still occupied it; he had no issue.
    On the 31st of August 1870, Jacob conveyed his part of the land to Daniel Wise, “ for the purpose of barring and destroying any estate tail in possession, remainder or reversion which he had in the land.”
    On the 3d of September 1870, Jacob by articles agreed to sell and convey his part of the tract to Christian Seibert, the defendant, in fee, for $275 per acre, the deed to be delivered to the defendant on or before the 1st of October 1870; when the defend-' ant was to pay one-third of the purchase-money and to secure the remaining two-thirds by bond and mortgage on the premises.
    On the 26th of September, Daniel Wise reconveyed his interest in the land to the plaintiff. Upon survey it was ascertained that the land contained 33 acres. The plaintiff executed and tendered to the defendant a deed which it was admitted would convey such title as was covenanted for in the articles, if the will gave the plaintiff a fee; but the defendant declined to accept the deed, because he alleged the plaintiff was not seised of a title in fee.
    It was agreed that if in the opinion of the court the plaintiff was entitled to recover, judgment should be entered in his favor for $3025, otherwise judgment to be entered in favor of the defendant.
    The court entered judgment for the plaintiff for $3025.
    The defendant sued out a writ of error and assigned the entering of the judgment for error.

      White & Slaqle, for plaintiff in error,
    cited Braden v. Cannon, 12 Harris 168.

      John Mellon, for defendant in error,
    cited as to the estate by the devise: Seely v. Seely, 8 Wright 434; Wall v. Maguire, 12 Harris 248; Naglee’s Appeal, 9 Casey 89. If an executory devise or contingent remainder, it was cut off by the deed to bar the entail: Linn v. Alexander, 9 P. F. Smith 43.
   The opinion of the court was delivered, November 16th 1871, by

Sharswood, J.

We have before us in the will of Jacob Wise another illustration of the remark of Lord Mansfield in Doe v. Fyldes, Cowp. 834. “ It is plain that the testatrix at the time of making her will had legal assistance, bat it was such assistance as served only to confound, by making her use all the drag-net words of conveyancing without knowing the force of them.” By the introduction without sense or meaning of the words “ survivors or survivor of them,” copied probably from some form book, what in the intention of the testator was a very simple and intelligible disposition of his property, 'has been rendered confused and given rise to this controversy. Words indeed are not to be rejected, if any meaning can be assigned to them, and we must endeavor to give such a construction to this will as will carry out the intent of the testator if it can be done consistently with the rules of law; if it cannot, it must yield to those rules which override his intention, if they cannot stand together.

One thing is too clear for argument — that Jacob Wise, by his will, devised his real estate, consisting of the tract of land upon • which he lived, to his two nephews John and Jacob, not as tenants in common, but to each one-half in severalty; one-half to John to be taken off the east end, and the other half to Jacob. When he says “ share and share alike,” that can only mean that the division shall be equal, though these words are unnecessary and out of place. The added clause “ to hold to themselves and their heirs,” by reference to the terms of the devise going before, could only mean “ each half in severalty to each nephew to hold to him and his heirs.” This would vest beyond all question a fee simple in each nephew in his several moiety.

What then is the effect of the words which follow: the survivors or survivor of them for ever?” If we give the word “ heirs” its technical sense, as we are bound by every principle of construction to do, unless there is unequivocal evidence of a contrary intention, these words cannot be applied to the word “heirs.” They are entirely insensible in such an application. There can be no survivorship among heirs. Though he uses the word “survivors” in the plural, he could only have meant survivorship between his nephews John and Jacob. But this would be a devise over after a fee — which could not stand as a remainder, because contrary to the rule of law that no remainder can be limited after a fee, nor as an executory devise because contrary to the rule against perpetuities. This would seem to be the most natural and reasonable solution of the difficulty arising upon the construction of this will.

But suppose we admit the contention of the plaintiff in error that the word “ heirs” by the mere force of these words survivors or survivor of them” is here to be construed to mean “children” — the only result would be to reduce the estate of Jacob to an estate tail. There is no estate for life given to him, either expressly or by implication. It is an immediate devise to him ami his children, he having, as the case finds, no children at the time of the devise, nor since. It falls then directly within the resolution in Wild’s case, 6 Rep. 17, which was, “if A. devise his land to B. and to his children or issue, and he has no issue at the time of the devise, that this is an estate tail; for the intent of the devisor is manifest and certain that his children or issue shall take, and as immediate devisees they cannot take, because they are not in rerum natura, and by way of remainder they shall not take, for this was not his intent, for the gift is immediate; wherefore such words shall be taken as words of limitation.” Wild’s ease has been recognised and followed as sound law by our own decisions: Cote v. Von Bonnhorst, 5 Wright 251; Taylor v. Taylor, 13 P. F. Smith 488. If then by this devise an estate tail was vested in Jacob, the devise over to the survivors or survivor, whether it be considered as a remainder or an executory devise, was destroyed by his deed of August 31st 1870, to Daniel Wise for the purpose of barring the entail.

Judgment affirmed.


text:
    The Knickerbocker Life Insurance Company versus Gorbach.
    1. A widow brought suit on policies on the life of her husband, against an insurance company of New York. The defendants, alleging that the plaintiff was a citizen of Pennsylvania, applied for the removal of the case into an United States Court. The defendant answered, that she was not a citizen of Pennsylvania, but of Austria ; not being a citizen of Pennsylvania her case was not subject to removal under the Acts of Congress of July 27th 1866, and March 2d 1867.
    2. If the husband of a foreigner be a citizen, she will be a citizen.
    3. The court below having decided the question of fact, the matter is concluded by that action and is not reviewable in the Supreme Court.
    4. The defendants should have made good their averment of the plaintiff’s citizenship; her answer stood for proof until overturned by proof from the defendants.
    November 11th 1871.
    Before Thompson, 0. J., Read, Agnew, Sharswood and Williams, JJ.
    Certiorari to the District Court of Allegheny county: No. 79, to October a'nd November Term 1871.
    Ou the 22d of Jainuary 1870, Barbara Gorbach brought an action of debt against The Knickerbocker Life Insurance Company of New York, on two policies of insurance for $10,000 each, issued by the defendants on the life of Conrad Gorbach, the husband of the plaintiff, for her benefit. Gorbach died on the 8th of August 1869, and this action was to recover the sums insured on his life.
    The declaration contained two counts; each alleged that “ They, the said defendants, did then and there and thereby assure the life of Conrad Gorbach, of Allegheny City, in the state of Pennsylvania, to the amount of $10,000, for the use and benefit of the said Barbara Gorbach, his wife,” &c.
    On the 26th of April 1870, the defendants petitioned the court, setting out that the plaintiff was a “ resident and citizen of Pennsylvania,” and that the defendants were “ a corporation duly created such by and under the laws of the state of New York and a citizen of the state of New York, within the intent and meaning of the constitution and laws of the United States,” &c.; the petition alleged other facts required by the Acts of Congress relating to the removal of cases from the state courts to the United States courts ; and prayed, that “ no further proceedings be had or taken in this honorable court in said suit, but that the same be removed into the said the Circuit Court of the United States for the western district of Pennsylvania, in pursuance of the said Acts of Congress in such case made and provided.”
    A rule was granted to show cause why the prayer of the defendants’ petition should not be granted.
    The plaintiff, by her answer, denied that she was at the commencement of suit, or then, “ a citizen of the United States or of the state of Pennsylvania; but respondent was then, and still is, a subject of the Emperor of Austria — this respondent having immigrated to the United States after she was over the age of twenty-one years of age; and respondent never was naturalized or declared her intention to become a citizen of the United States.” The court on the 6th of September 1870, discharged the rule.
    The defendants removed the proceedings to the Supreme Court by certiorari and assigned for error:
    1. The discharging the rule.
    2. Refusing to order that no further proceedings be had in the District Court, and that the cause be removed into the Circuit Court of the United States.

      G. Shiras, Jr. (with whom was J. L. Koethen), for certiorari.—
    Upon the face of the petition of the defendant below, clearly the insurance company was entitled to a removal of the cause. Unless the averments of the answer to the petition are found to take the case out of the provisions of the Acts of Congress invoked by the defendant, the court below erred.
    Those averments are simply, that the plaintiff below was born in Austria, emigrated thence to the United States after she was over twenty-one years of age, and never was naturalized or declared her intention to become a citizen of the United States.
    But the plaintiff’s declaration showed that her deceased husband was “ of Allegheny City, in the state of Pennsylvania,” and her petition contains no allegation that Conrad Gorbach was not a citizen of the United States. By the provisions of the Act of Congress of February 10th 1855, “ any woman who shall be married to a citizen of the United States shall be deemed and taken to be a citizen.” This act has been construed by the Supreme Court of the United States, in the case of Owen v. Kelly, 7 Wall. 496, to mean that “ whenever a woman is in a state of marriage to a citizen, whether his citizenship existed at the passage of the act or subsequently, or before or after the marriage, she became, by that fact, a citizen also.” “His citizenship, whenever it exists, confers, under the act, citizenship upon her:” Burton v. Burton, 38 N. Y. 373.

      Josiah Cohen and John Mellon, contrá, cited Blackley v. Davis, 1 McClean 412.
   The opinion of the court was delivered, November 16th 1871, by

Thompson, C. J.

The Knickerbocker Life Insurance Company, defendant in an action brought by Barbara Gorbach on an insurance taken by her on the life of her husband or standing in her name, pending in the District Court of this county, applied by petition to remove the same into the Circuit Court of the United States for the Western District of this state, under the Act of Congress of 27th July 1866, and the supplement thereto approved March 2d 1867. The petition averred citizenship of the company in the state of New York, and that the plaintiff was “ a resident and citizen” of Pennsylvania. To this petition the plaintiff made answer that she was not a citizen of the state of Pennsylvania at the commencement of said suit, but was then, and still is, a subject of the Emperor of Austria, having emigrated to the United States after she was over the age of twenty-one, and never naturalized in the United States. If she was in fact not a citizen of Pennsylvania, then her case was not subject .to removal under the Acts of Congress mentioned. The cases of removal are “ where there is a controversy between a citizen ofi the state in which the suit is brought and a citizen of another state.” Mrs. Gorbach’s answer to the petition presented a question of fact in the court below as to her citizenship, and this we have no power to review on a certiorari. If her husband had been naturalized, she would have been a citizen undoubtedly, but that was a question of fact, and whatever conclusion the court below came to as to that fact cannot be reviewed here, as the facts do not appear on the record. The matter is concluded by the action in that court. For this reason we cannot say whether the court below erred in point of law on the facts or not, and that was what was sought to be reviewed in this court. It was undoubtedly the duty of the company to make good their averment of the citizenship of Mrs. Gorbach. This they did not do, and her affidavit stands for proof that she was not a citizen until overturned by proof by tne company. In the state of the record before us we cannot say there was error on part of the court in refusing the application of defendants for the removal. The record being all right we must affirm the proceedings in the court below.

Proceedings affirmed.


text:
    Paisley’s Appeal.
    1. A testator gave to his wife “ the rents and profits of all my property during her life for her support and the support and education of my children under the direction of my executors.” This did not create a trust for the children either in the widow or executors, nor give the Orphans’ Court jurisdiction to call them to account or to decree in favor of the children for the future administration of the estate.
    2. In the support of herself and children the widow was not under the direction of the executors; as long as the family lived together she was to have the control.
    3. As to the management, renting and other disposition of the property, she was to be under the direction of the executors.

      4. The children had no present interest, in any particular shares; the main object was to benefit the widow.
    5. At the death of the widow the whole estate passes to the children under the intestate laws.
    6. Pennock’s Estate, 8 Harris 268; Willard’s Appeal, 15 P. F. Smith 215, compared.
    November 11th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Orphans’ Court of Allegheny county: No. 69, of October and November Term 1871.
    On the 5th of February 1870, Hugh Whiteside and Mary Jane his wife, John T. Shane and Anna his wife, J. B. Flack and Nancy P. his wife, presented their petition to the Orphans’ Court of Allegheny county, representing:—
    1 and 2. That Samuel Paisley died in 1850, leaving a widow, Ellen E. Paisley, and five children, three, the above-named female petitioners, by a first marriage, and two, Samuel T. and Ella, children of his surviving widow, and that he died seised of real estate in Pittsburg.
    3. That by his will, dated July 22d 1850, he gave the income of his estate to his widow during life for her support and the support and education of his children, under the direction of his executors.
    4. That the executors having died, letters of administration d. h. n. c. t. a. were granted to Alexander Hilands.
    5. That since the testator’s death his widow had collected the income of the estate, and continued to collect it.
    6. That they believed the income was not less than $4000.

      7. That the widow refused to apply any portion of the income to the support of the female petitioners, but was applying it to her own support, and the support of her own children, Samuel T. and Ella Paisley.
    8. That Samuel T. was above twenty-one years of age and Ella above twenty years.
    The petitioners prayed:—
    1. That a citation issue to the said Ellen Everretta Paisley, Alexander Hilands, Samuel T. Paisley and Ella Paisley, and to such guardian ad litem of said Ella Paisley as the court may appoint, commanding them to be and appear before this court on a day certain to answer this bill.
    2. That the court by its order and decree fix the proportions of the rents and profits of and from the property of the said Samuel Paisley, deceased, to which the said Mary Jane Woodside, Anna Shane and Nancy P. Flack are severally entitled, and secure the payment thereof to them.
    3. For further relief.
    The will, which was annexed to the petition, is as follows:—
    “ I, Samuel Paisley, do make this my last will and testament. I give and bequeath to my wife, Ellen Everretta, the rents and profits of all my property during her natural life, for her support and the support and education of my children, under the direction of my executors: Provided, however, my brother John shall receive $200, and my house which he now occupies for five years at $60 per yearly rent. I hereby authorize my executors to sell my property in the bottom north of Penn street, to improve my property on Penn street. I hereby appoint Alexander Laughlin and James Marshall, my executors, to carry this my last will into effect. July 22d 1850.”
    The widow, for herself and as guardian ad litem for Ella, answered, admitting the 1st, 2d, 3d, 4th, 5th, and 8th paragraphs of the petition, and referred to an exhibit containing what she alleged to be a statement of the gross and net income of the estate of the decedent which had come into her hands since his death.
    She averred that Mary Jane Woodside and Anna Shane had lived with her, and been supported from the income of the estate until their respective marriages, and that since then they had been comfortably supported by their husbands; that Nancy P. Flack had lived with her and been supported out of the income of the estate until the year 1859, when she left defendant, and instituted proceedings in equity to have set apart to her separate use a portion of the estate, and that she bad been unsuccessful in those proceedings; that she was married, and comfortably supported by her husband; that Samuel T. Paisley had comfortably supported himself for the last ten years, and had not, during that time, needed or received any of the income; that Ella was under age and unmarried, and had no estate or livelihood to support her, and that she had been educated according to the intent of her father’s will, and continued to be supported under the same, and that all the income of the estate, after the payment of taxes, &c., was not more than sufficient for the support of the defendant and her daughter.
    “ That the mode and manner of expenditure of the income of said estate, as above set forth, met the approval of Alexander Laughlin and James Marshall, the executors of the will of Samuel Paisley aforesaid, and the said expenditure was known to and approved by them.”
    She denied that the petitioners were entitled to any relief.
    The exhibit showed that the gross income of the estate had been $920 in the year 1851, and had increased yearly until 1869, when it was $3457.50; that the net income was $650 in 1851, and in 1869 was $2857.50.
    Samuel T. Paisley answered, admitting the facts as to himself, as stated in the widow’s answer, and averred that he “ believes that he is not legally entitled to any portion of the same during the life of his mother. That the income of said estate is not more than sufficient to support the widow of-said decedent; that instead of being supported out of said estate, as alleged in the petition, he has repeatedly loaned the estate money to meet existing demands, when there was no money on hand to pay and satisfy the same. That this respondent declines to interfere or take part in these proceedings, and prays that the petition be dismissed at the cost of petitioners.”
    A replication was filed, and John H. Bailey, Esq., was appointed auditor, to take testimony and report the facts to the court.
    He found the facts, and reported: * * *
    “ Without attempting to pass upon the conditions of decedent’s will, but assuming for the purpose of this reference that the income of the estate is material as between these parties, I report that the relation the widow bears to this estate would require her to account for the rents and profits derived from this property.” * * *
    “ I find and report to the court, that the gross rents derivable from the estate of Samuel Paisley, deceased, at the present time, amount to the sum of $3531.”
    Exceptions were filed to the auditor’s report: they were overruled, and the report confirmed.
    The court decreed that Ellen E. Paisley should pay the daughters the sums set out in the decree, for the respective years since 1865,

      “ Being, each of said sums, the one-fifth of two-thirds of the net rents, &c., as shown by her answer filed, for all of said years prior to 1870, and as to 1870, tbe same proportion of the amount found by the auditor, after deducting $431.53 for the taxes of that year, which she is to pay, if not already paid; but said sum to each for 1870, is to be subject to deduction for a like proportion of any further payments made by her for necessary repairs, or other proper charges or assessments which are chargeable upon the rents for that year, if any such have been made by her.” * * *
    “That hereafter, the leasing and management of all the real estate of the said Samuel Paisley, deceased, be committed exclusively, during the life of said Ellen Everretta Paisley, and until the further order of this court, to Alexander Hilands, Esq., the administrator, with the will annexed, de bonis non, and his successor in said office, who is to pay to the said Ellen Everretta one-third of the net rents and profits thereof, for her share thereof, and to each of the five children of said deceased, one-fifth of two-thirds of said net rents and profits, as they accrue, upon request of them severally made; and that the said Ellen Everretta Paisley and every of the parties other than said administrator, be enjoined from making any future leases of said property, collecting any of its rents, or otherwise in any way intermeddling therewith, except, and then only, as thereunto expressly authorized by said administrator.”
    Ellen E. Paisley appealed to the Supreme Court, and there assigned for error, that the court erred:—
    1. In entertaining the petition, in requiring an appearance and answer, and in making a decree, because, the parties being devisees and 'not legatees, the Orphans’ Court had no jurisdiction.
    2. In taking from Mrs. Paisley the management, control and income of the property, the corpus of which passed to her for life by the devise of the rents and profits.
    3. In ordering Mrs. Paisley to pay to the petitioners the several sums of money mentioned in the decree, because, if entitled at all, they were not entitled to the sums ordered to be paid', and having been supported and educated until they married, they had no further claim upon the rents and profits devised to the wiodw.

      Bayne & Magee and T. M. Marshall, for appellant, and H. B. Swope, for S. T. Paisley.
    1. The Orphans’ Court had not jurisdiction, this being a devise of the rents and profits of all the testator’s real estate to his wife for life, for her support and the support and education of his children. This is not only a devise of the rents and profits, but also of the lands to her for life: McCullough’s Appeal, 2 Jones 197; Willard's Appeal, 15 P. F. Smith 265; George Schreyer’s Estate, 2 Brewster 526.
    2. A devise- of the rents and profits to the wife for life passes the land itself, though it may be coupled with a trust or condition: Earl v. Rowe, 35 Maine 414; Anderson v. Greble, 1 Ash. 136; Carlyle v. Cannon, 3 Rawle 489; Kinsey v. Lardner, 15 S. & R. 192. The Act of 1834 puts an administrator with the will annexed on the footing of a surviving executor, but not on the footing of a testamentary trustee. He has no power to execute a trust reposed in executors by the will, outside the line of the ordinary duties pertaining to the office of executor: Ross v. Barclay, 6 Harris 179; Moody’s Lessee v. Fulmer, 3 Grant 18.
    In Pennsylvania every bequest or devise to the wife is conditional by force of the statute, which declares that it shall be in lieu of dower, if the contrary be not expressed. She therefore stands in the position of a purchaser for a valuable consideration : Reed v. Reed, 9 Watts 263; Isenhart v. Brown, 1 Edwards Ch. R. 411; Williamson v. Williamson, 6 Paige Ch. 298; Spangler’s Estate, 9 W. & S. 135; Hubbard v. Hubbard, 9 Metcalf 50; Burridge v. Tradyl, 1 P. Williams 120; Brewer v. Monee, 2 Ves. Sr. 420; Heath v. Dendy, 1 Russ. 543.
    The testator made the provision in the will for the support of his family, as a family, and not as individuals. Marriage and removal from the homestead forfeited the right to further support, as it did to further education: Camden v. Benson, cited in Connolly v. Farrell, 8 Beavan 350; Thorpe v. Orren, 2 Hare 608; Bowden v. Laing, 14 Sim. 111; Crockett v. Crockett, 1 Hare 457; s. c. 5 Id. 326. Where the interest of the children’s legacies is given to a parent, to be applied towards their maintenance and education, the parent takes the interest subject to no account: Berkley v. Swinbourne, 6 Sim. 613; Hadow v. Hadow, 9 Id. 438; Brown v. Paull, 1. Sim. N. S. 97. Widows have always been deservedly the favorites of the law : Rewalt v. Ulrich, 11 Harris 388; Wilson v. McKeehan, 3 P. F. Smith 79; Gilbert v. Bennett, 10 Sim. 371; Galbraith v. Green, 13 S. & R. 85. A construction acquiesced in so long by all parties should be sustained : Hagerty v. Albright, 2 P. F. Smith 274.

      J. B. Flack, M. W. Acheson and Beech Watson, for appellees.
    The Orphans’ Court has jurisdiction when executors are in any way accountable: Acts of March 29th 1832, sect. 4, Pamph. L. 190, June 16th 1836, sect. 19, Pamph. L. 792, 2 Bright. Purd. 1104, pl. 8; Wimmer’s Appeal, 1 Whart. 96; Brown’s Appeal, 2 Jones 333; Noble’s Appeal, 3 Wright 425. This is a bequest of rents and profits, and therefore a legacy: 1 Roper on Leg. Chap. III. sect. 3. The Orphans’ Court has jurisdiction over legacies: Black v. Black, 10 Casey 354; Ashford v. Ewing, 1 Id. 213; Linsenbigler v. Gourlay, 6 P. F. Smith 166; Kinsey v. Lardner, 15 S. & R. 192. As to the construction of the will: Longmore v. Elcum, 2 Younge & Collyer 363. The construction should be as near as possible to the general rules of inheritance: Amelia Smith’s Appeal, 11 Harris 9; Malone v. Dobbins, 11 Harris 296; McIntyre v. Ramsey, Id. 317.
   The opinion of the court was delivered, November 16th 1871, by

Sharswood, J.

The view which we take of the true construction of the will of Samuel Paisley disposes of all the questions which have been mooted on this appeal. He gives to his widow, the present appellant, the rents and profits of all his property during her natural life, under the direction of his executors. The object of this devise to her is expressed to be “for her support and the support and education of his children.” We must give the words of the will a reasonable construction. He certainly never could have intended that in the support of herself and the support and education of his children she should be under the direction of his executors. They were not to have rule in the household — to direct how or where she should live — how the children should be fed and clothed — to what schools they should be sent. Undoubtedly he meant that as long as his family continued to live together she should preside as the mistress, and have the control of it herself. He had confidence in her that she would do her duty as a mother, and it does not appear that his confidence was misplaced. In the management of the property — the renting and other disposition of it — he considered that her sex and her household duties would, in a measure at least, incapacitate her, and he wills, therefore, that as to all that, she shall be under the direction of his executors. If we read the will as if these words, “ for her support and for the support and education of my children,” were in a parenthesis, this construction becomes very evident. These words created no trust, then, either in the widow or the executors for the children, which could give the Orphans’ Court jurisdiction to call them to account, or to make a decree in favor of the children for the future administration of the estate. In that respect it was like Willard’s Appeal, 15 P. F. Smith 265. The case of Kinsley v. Lardner, 15 S. & R. 192, does not sustain the contention of the appellees. No such point was made, and the only matter decided was, that the wife took an estate for life, with a vested remainder to the children. The case of Longmore v. Elsum, 2 Younge & Coll. 363, 21 Ch. Eng. Rep. 362, also cited and relied on, even if we should feel disposed to follow it, differs very materially from the present. There was no direct devise as here to the wife, but to the executors in trust to permit her to receive the rents and profits for her own use and benefit, and for the maintenance and education of the children, and subject to such trusts, in trust after the decease or marriage of the widow, for his said children in equal shares. All the provisions of the will were spoken of as trusts. If, however, in the will before us, this was a trust for the children, when did it commence ? On the children’s attaining majority? The will says nothing about it. It must have been on the death of the testator. Is it conceivable that he meant her to account to each child, and show that his or her share had been wholly expended in support and education ? What was her share and the share of each child ? The decree of the court below assumes that the rents and profits were to be distributed just as if Samuel Paisley had died intestate, Or as if the widow had elected against the will, to take her dower at common law. But what authority is to be found in any expression of the will for any such assumption ? Even if we adopt the unreasonable construction that it was the support of the widow and the support and education of the children which were subjected to the direction of the executors, it is evident that it was subjected to their discretion as well as their direction. Such a distribution as that decreed might be most unjust and inequitable. It might leave the widow with all the cares and responsibilities of the household upon her, without an adequate support for herself. It may well be doubted whether such a discretion would not be a personal confidence reposed in the executors, though given to them by that name — which could not be exercised by a stranger to the testator — an administrator de bonis non. However that may be, we think that the words, which expressed the object for which the devise of the entire property was made to the wife for life, meant to repose that discretion in her, did not vest any present interest in the children as eestuis que trust of any particular share or shares, and in that respect the principles of construction adopted in Pennock’s Estate, 8 Harris 268, are applicable. Indeed this case, in one respect, may be considered as stronger than that; for there the words of confidence and recommendation had relation to the disposition which the legatee should make of the surplus remaining at her death, when she would no longer need it for herself. Here the main object of the testator was the benefit of his widow, to whom he 'devises the whole estate during her natural life, with the expression of his confidence that she would apply the rents and profits during that period to her own support and the support and education of his children. Doubtless she will be solemnly bound in foro conseientice, to assist any of them if they should ever need it as far as her means will permit. But it would be unreasonable and evidently in contravention of the will of their father, to hold that she must pay to them two-thirds of her income without regard to their circumstances or her own comfort. Upon her death the entire estate will devolve to them under the intestate laws, and for that event they must learn patiently to wait.

Decree reversed at the costs of the appellees.