author: Mr. Justice Green

text:
    Philadelphia and Reading R. R. Co. versus Carr.
    1. It is not always contributory negligence per se for a person to attempt to cross a railroad track without waiting until a train, which has just passed, has gone so far as to leave unobstructed the view of another train approaching upon a parallel track in a contrary direction.
    2. A. was walking upon the street of a city which was intersected at an angle by several parallel lines of railroad. On nearing the intersection, A. perceived a train approaching on one of the tracks, and stopped until it had passed. When the last car had gone by, she looked both ways and also listened, but neither saw nor heard anything to alarm her, and accordingly, when the rear of the train was about a car’s length off, attempted io cross. While doing so, she tripped and fell upon the track next beyond that upon which the train had just passed, and after lying there prostrate about fifteen seconds, was run over and injured by a train running upon that track in the opposite direction from the train which had just passed. A.’s view of the train by which she was injured was totally cutoff by the train which had just passed. The rear car of the last named train passed the engine of the first named train about three hundred feet from the place of the accident. In an action by A. against tire railroad company to recover damages for her injuries, the defendant requested the court to charge that the plaintiff had been guilty of contributory negligence in attempting to cross while the train which had just passed prevented her seeing the train by which she was injured. The court declined to so charge, but left the question of the plaintiff’s contributory negligence to the jury. Held, under the circumstances, that this was not error.

      January ^ 31st 1882.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Trunkey, Sterrett and Green, J J.
    Error to the Court of Common Pleas No. 2, of Philadelphia county: Of July Term 1881, No. 117.
    Case, by Patrick J. Carr and Mary Ann, his wife, in her right, against the Philadelphia and Reading Railroad Company, to recover damages for injuries suffered by the said Mary Ann Carr, caused, as alleged, by the negligence of the defendant’s servants.
    On the trial, before Hare, P. J., the following facts appeai*ed : — On the evening of June 2d 1878, between half-past nine and ten o’clock, the plaintiff, Mary Ann Can’, accompanied by her' uncle, Thomas C. Meehan, was walking westwardly on Diamond street, in the outskirts of the city of Philadelphia, approaching the point where it is crossed by the tracks of the Germantown branch of the defendant’s railroad. Diamond street is crossed diagonally by four parallel sets of ¡tracks, the two centre ones being the main tracks and the outside ones being sidings. These tracks extend northwardly from Diamond street in a slight curve, but practically in a straight line for several squares or nearty two thousand feet. Beyond that is a considerable curve in the road.
    When the plaintiff arrived at the railroad crossing, she stopped, looked and listened, and heard and saw a train approaching from the city, running northward. She stopped and allowed this train to pass. As the last car passed the crossing, she again looked and listened, and, neither seeing nor hearing another train, started to cross the tracks.
    At the moment she started, the rear end of the train which had just passed was about a car length distant. While in the act of crossing the westwardly main track, she caught her foot or slipped and fell, and within ten or fifteen seconds, her foot was run over and cut off by a train running southwardly from Germantown towards the city, at a very rapid rate. The evidence showed that had it not been for the up train, she would have seen the headlight of the engine of the train approaching in the opposite direction. This engine passed the rear end of the up train at a point about one hundred yards from the crossing. The engineer of the down train testified that his engine was about thirty feet from the plaintiff when she fell. The plaintiff’s uncle, who was with her at the time of the accident, was not called as a witness.
    The defendant’s counsel presented, inter alia, the following points:—
    “ 3. That a traveler intending to cross a railroad is bound to presume that a train is approaching, or if the railroad be a double track railroad, that a train is approaching in each direction, and it' is his or her duty to stop and look both up and down the track and listen for approaching trains; an omission to do so is negligence, and is an absolute bar to any recovery by such a person in case of a collision. Answer. Instead of saying that a traveler is bound to presume that a train is approaching in either direction, I would say that as a train may be approaching in either direction, he should act as if that possibility or probability were a reality. I affirm the point as thus qualified.
    “ 4. The fact that a traveler stops and waits until a passing train gets by does not absolve him or her from looking and listening for trains approaching upon the other track in an opposite direction, and a traveler waiting for a train passing in one direction must wait sufficiently long so that that train shall not prevent him or her seeing a train approaching in an opposite direction. If, therefore, the jury believe that Mrs. Can*, after stopping east of the railroad at Diamond street while the out train was passing, started across at a time when that train prevented her seeing the incoming train, she was guilty of negligence, and cannot recover. Answer. I have already told you that it was Mrs. Carr’s duty on approaching the track with a view of crossing it, to look and listen, to look in both directions, and listen for the approach of trains on either side, and I also said, or it was a necessary inference from it, that if she was delayed, as she was delayed in this case, by any cause — the approach of the up train in the case in hand — it would be her duty again to look in both directions and listen before setting out. I am asked to say to you, however, that if under those circumstances a train which passed up the road shut out any portion of the road from view, it would be her duty to wait until that obstacle to vision was removed, and that if she did not do so, it would necessarily be negligence, and preclude her recovery. What I say is, that it would have been a wise and proper precaution as the event shows. Whether the omission of that precaution be negligence would depend upon circumstances, and I am not willing to take upon myself the responsibility of saying that under the circumstances in this case she would necessarily be guilty of negligence in not waiting until the view of the other track was entirely clear. That is for the jury to consider. If the jury find that she was negligent, then the consequence ■would follow which has been already stated.”
    The charge of the court was not contained in the bill of exceptions, and was not printed.
    Verdict and judgment for the plaintiffs for $8,000. The defendant company took this writ of error, the only assignment of error beiug the answer of the court to its fourth point.

      Thomas Hart, Jr., for tlie plaintiff in error. —
    The duty of one about to cross a railroad, to stop, look and listen, is admitted. In the ease of a double-track railroad, it is a necessary inference from the rule that if a foot traveler stops for a train to pass in one direction, he must not only looki again in both directions, but he must wait until the train just passed has proceeded a sufficient distance not to block his vision of the other track; otherwise, looking is of no use. It has been decided that a permanent obstacle, obstructing a view of the track will not .relieve one about to cross from the duty of looking at a place where he can see up or down the track : Central R. R. Co. of New Jersey v. Feller, 3 Norris 226; R. R. Co. v. Beale, 23 P. F. Smith 50é.
    There is no difference in principle between a permanent obstacle to the view and a moving one, so long as the latter continues to be an obstacle. In the one case, the obstacle is one of place, in the other, it is one of tíme; and as in the one, the passenger must look at a place where there is no obstruction, so in the other, he must wait until the moving and temporary obstruction be removed: Werner v. R. R. Co., 8 Norris 59; Penna. R. R. Co. v. Fortney, 9 Norris 323.

      Daniel Dougherty, for the defendant in error. —
    The plaintiff below performed her whole duty. The court cannot say, as a matter of law, that after waiting for one train to pass, and after then looking in both directions, she was bound to wait an indefinite time, because there might be a train coming in the opposite direction at an uncertain distance : Phila. and Trenton R. R. Co. v. Hagan, 11 Wright 216. At so dangerous a crossing, within the city limits, the railroad company should provide efficient safeguards, and not rely on the court to cast all the responsibility upon travelers on the public streets: Phila. & Reading R. R. Co. v. Killips, 8 W. N. C. 526.
   Mr. Justice Green

delivered the opinion of the court, February 20th 1882.

The rule which requires of one who is about to cross the track of a railroad, that he shall stop and look both ways and listen before stepping on the track is a wise and salutary rule. If it were really observed in every instance, accidents at such crossings would be almost, if not quite, impossible.

Experience constantly teaches the necessity of enforcing the rule, by visiting the penalty of contributory negligence rigidly upon those who disregard it. The safety of passing trains and the lives of passenger’s traveling .therein, which are always endangered when obstructions of any kind are upon the track, are of quite as mucli consequence,' as the safety and the lives of those who occupy the track even in the momentary act of crossing it. In the present case the charge of the learned judge of the court below is not printed, but so far as we can gather from the answers to the points submitted, he seems to have impressed upon the jury with emphasis, the full terms and import of the rule above stated. But a single error is assigned, and that is to the answer given by the court to one of the points of the defendant. The point was in the following words :

“ The fact that a traveler stops and waits until a passing train gets by, does not absolve him or her from looking and listening for trains approaching upon the other track in an opposite direction, and a traveler waiting for a train passing in one direction, must wait sufficiently long so that that train shall not prevent him or her seeing a train approaching in an opposite direction. If, therefore the jury believe that Mrs. Carr, after stopping east of the railroad at Diamond street, while the out train was passing, started across at a time when that train prevented her seeing the incoming train, she was guilty of negligence, and cannot recover.”

The point was thus answered: “I have already told you that it was Mrs. Carr’s duty, on approaching the track with a view of .crossing it, to look and listen, to look in both directions and listen for the approach of trains on either side, and I also said, or it was a necessary inference from it, that if she was delayed in this case, by any cause — the approach of the up train,,in the case in hand — it would be her duty again to look in both directions and listen before setting out. I am asked to say to you, however, that if under those circumstances a train which passed up the road shut out any portion of the road from view, it would be her duty to wait until that obstacle to vision was removed, and that, if she did not do so, it would necessarily be negligence and preclude her recovery. What I say is, that it would have been a wise and proper precaution as the event shows. Whether the omission of that precaution be negligence, would depend upon circumstances, and I am not willing to take upon myself the responsibility of saying that under the circumstances in this case, she would necessarily be guilty of negligence in not waiting until the view of the other track was entirely clear. That is for the jury to consider. If the jury find she was negligent, then the consequence would follow which has been already stated.” Was there error in this answer ? In a possible condition of the facts of the case, it might not have been erroneous to simply affirm the point. It probably would not have be.en, if the train going out had been at rest, at, or close to the point of crossing, for then it would have been a physical obstacle which manifestly obstructed vision on the other track.

The conspicuous and palpable character of the obstacle would be direct notice to the plaintiff that she could not exercise her faculty of vision in that direction, and the effect would have been precisely the same as if the obstruction had been of a fixed and permanent character. The case would thus have been brought within the ruling in Railroad v. Feller, 3 Norris 226. There the obstruction was a watch-house, and wp held the party guilty of contributory negligence, because, although he stopped "and ioolced while in front of it, his looking in one direction was a vain act, and could yield him no information. The same doctrine was held in Railroad v. Beale, 23 P. F. S. 504. But here the train going out was not at rest, nor was it fit the point of crossing. It had gone beyond the crossing. All the witnesses to the accident agree in this. As to the precise distance it had gone before the locomotive of the down train passed the rear end of the up train, the testimony is not veiy distinct. The plaintiff, who had stopped on the east side of the road, to await the passage of the up train, says that after the train had passed, she stopped long enough to look, and did look, first up the* road and then down, and listened and heard nothing, and then started to cross. She was asked:

Q. Where was the train that was going' out when you started to go across ? A. It was a little distance the other side of Diamond, I could not tell you how far, but I saw the back of it was some distance to the other side of Diamond street— the end of the car.
Q. Some distance the other side of Diamond street, you say, the back end of the car ? A. Yes, sir : any how a car’s length or about that distance. I could not tell you exactly, it might be more.
Q. I want to get that as clearly and closely as I can. A. That is as close as I can give it to you. It might be more. It was not less, but it might be more.
Q. You saw the endof the car? A. Yes, sir.
Q. You think it was a about car’s length on the other side, of Diamond street ? A. Yes, sir: it might have been more. I won’t, swear that it was just a car’s length, but it might have been more than a car’s length.
Q. How long, in point of time, did you stop there-after the train passed ? A. I did not stop any longer than to see that my way was clear, and that there was nothing in my way.

F. J. Byan, a witness for the defendant, said, From the woman, where she fell, to where the hind end of the train passed, was about one hundred steps,” and added that he stepped it off himself. He had previously testified, “ The up train passed right about, I think, five hundred yards away from the crossing at the time the cow-catcher passed the hind end of the np train.”

Joseph Ryan, another witness for the defendant, testified: The train had got up above Tenth street as the down train ’was about approaching Tenth.” Being further examined, he said, “ The down train passed the hind end of the up train about live yards above Tenth street.”

Q. Five yards to the north of the Tenth street crossing? A. Y"es, sir.
Q. Can you tell where the engine of the down train was when Mrs. Carr slipped and fell ? A. The engine of the down train was on the north side of the Diamond street crossing.

John Tousor, another witness for the defendant, testified:

Q. Where did the trains pass each other ? A. They passed each other just above the Tenth street crossing — about the fiagbox there.
Q. When you say they passed each other, do you mean to say the engine passed the hind part of the train ? A. The hind car of the up train passed the engine of the down train.

Several witnesses testified that the plaintiff fell on the track of the down train — the west track of the road — and while lying there with her head and body beyond the west rail of the west track, and her feet, or one of them, between the rails, she was run over by the engine of the down train and one foot was cut off.

The witness, J oseph Ryan, in his cross-examination testified:

Q. You say she fell and was lying on the track? A. She fell on the down track ; yes, sir, she slipped and fell on the down track.
Q. How long was she lying there before the engine struck her ? A. As near as I can recollect about ten, or thirteen or fifteen seconds.

Harry J. Gilmore, another witness for defendant, testified that he was watchman at the Tenth street crossing, which he said was about a hundred steps from the Diamond street crossing, and that he saw the accident. He said, “ After that other train (the up train) had passed, and as the other train coming down came to my crossing, I saw the lady cross over, and the lady fell about the time the engine had passed me. By that time when the engine had got down on to that crossing that kept most of the light from me, so that I could not see much more.”

Q. Where were the trains as they passed your crossing — that is, where did the engine of the down train pass the hind part of the other train? A. Just before it struck my crossing, the upper side of my crossing. The rear end of the up train had crossed to my crossing about the time that the down engine was coming to my crossing.

John Welsh, the engineer of the down train, testified that his engine passed the rear end of the up train “just about the end of the planks of the Tenth street crossing,” and that his engine was about thirty feet from the plaintiff when she fell.

There was other testimony as to the details of the occurrence, but we have quoted enough for the purpose of disposing of the present question.

The defendant asked the court to say by the point in question that “If, therefore,the jury believe that Mrs. Carr, after stopping east of the railroad at Diamond street while the out train was passing, started across at a time when i that train prevented her seeing the incoming train, she was guilty of negligence, and can not recover.”

It is true the hypothesis of the point is the inability of the plaintiff to see the incoming train, on account of the outgoing train, when she attempted to cross, but the point itself is not an abstract proposition. It is not the declaration of a mere legal principle, nor is it even the application of a legal principle to an absolutely fixed and definite condition of facts. In the concrete, the proposition of the point is to fix a definite legal consequence of negligence upon this plaintiff, not for doing or omitting to do something in a precise and determinate state of facts, but in a condition of things which, in essential features, is indeterminate and uncertain.

To illustrate. If, while the outgoing train was at rest, or if, on the very instant of its passing, the plaintiff attempted to cross, she might very well be subject to a rule of duty which would be entirely inapplicable if the train were half a mile away. The rate of speed of each train would also be an element in the problem, which the point entirely ignores. Now it seems clear, the outgoing train was a hundred yards, or thereabouts, distant from the point of crossing, when the engine of the down train passed its rear. How would it be possible for a court to say, as matter of law, that the plaintiff would be guilty of negligence if she crossed the track, knowing that she could not see an incoming train at that distance ? The court did leave it to the jury to say whether it was negligence, in fact, for her to cross in such circumstances, and certainly nothing more than that could be asked on behalf of the defendant. As a matter of fact, it can scarcely be questioned that it is easily possible for one to step across a railroad track in safety, although a train is approaching at a distance of three hundred feet. In truth, it would seem from the testimony that the accident in this case was due to the fact, that the plaintiff stumbled, and fell upon the track, and remained prostrate from ten to fifteen seconds before the train reached her, rather than to a lack of time to get across the track. These considerations take the case entirely out of the domain of legal control, by the application of a fixed rule which determines negligence, as the necessary consequence of definite action, or 11011-action, in precise circumstances.

The learned judge said all that could, be said when he charged, that the act of the plaintiff in crossing as she did, might be negligent according to the circumstances, and the force of these ho properly left to the determination of the jury. In this there was no error. We think the time has arrived when it would be well for all railroad companies, whoso tracks cross the streets of cities and towns at grade, to protect all the street crossings with gates. The growing practice in this direction deserves commendation.

Judgment affirmed.


source: Caselaw Access Project

author: Chief Justice Shabswood

license: Public Domain

text:
    Mount Holly Paper Company's Appeal.
    1. All railroad companies incorporated by or under special acts, are subject to the regulations of the General Railroad Law of February 19th 1849, Parnph. L. 79, except in so far as such regulations are specially altered iu the said special Acts or are inconsistent therewith.
    2. A., the president of a railroad company chartered by a special act of Assembly in 1817, delivered to-B., a creditor of the firm of O. & Co., certain certificates of stock in the railroad company then standing in A.’s name, together with a power of attorney in blank, to transfer the same. The shares were not valid, having been issued by A. in collusion with the other officers of the company, in excess of the charter limit. The delivery was made in order to- secure the past and future indebtedness of C. & Co. to B., and it was agreed that the shares should not be transferred into B.’s name without notice to A. Several years passed without any attempt on the part oí B. to effect said transfer, and in the meantime, A. became heavily indebted to the company. In certain equity proceedings after-wards instituted to determine the relative rights of B. and the railroad company as to the shares pledged by A. to the former, — Held,, that the provisions of section 7 of the General Railroad Law of February 19lh 1849, Pamph. L. 79, forbidding the transfer of shares so long as the holder is indebted to the company, were applicable, and that, therefore, B. was not entitled to demand from the company a transfer of the shares into his own name, or the payment of -the amount for which they had been pledged to him, without first discharging the indebtedness of A.
    January 31st 1882.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Trunkby, Sterrett and Green, JJ.
    Arpead from the Court of Common Pleas No. 2, of Philadelphia county: In Equity: Of January Term 1882, No. 53.
    Appeal of the Mount Holly Paper Company from a decree of said court, sustaining the exceptions of the West Philadelphia Passenger Bailway Company, to the report of the Master in the matter of a cross bill filed by tlie said railway company, in a cause wherein Sarah Swain, and William M. Baugh, were complainants, and the said West Philadelphia Passenger Railway Company, its officers and directors, and others, were defendants.
    The original bill in equity set forth, inter alia, that by a fraudulent combination between the president, treasurer, and secretary of said company, a large number of certificates of stock had been issued, which, though duly attested by the officers of the corporation and sealed with its seal, were fraudulent ; that the company had received no consideration therefor, and that the same constituted an unauthorized over-issue. The bill prayed that such certificates be decreed null and void and be surrendered up to the company for cancellation.
    The railway company filed an answer and subsequently a cross bill against the said complainants and numerous other parties who had appeared by counsel, including the Mount Holly Paper Company, submitting themselves to the order of the court in the premises. Certain of tlie defendants in the cross bill also filed cross bills in their own behalf.
    The cause was referred an Examiner and Master, David W. Sellers, Esq., before whom it was agreed by counsel that relief might be granted to each of the defendants in the cross bill, as though each had filed a separate cross bill in their behalf, suitable to all the proofs in the cause.
    The Master found the facts, as far as they relate to the case of the Mount Holly Paper Company, to be substantially as follows: — ■
    The West Philadelphia Passenger Railway Company was incorporated by a special Act of the Legislature of Pennsylvania, approved May 14th 1857 (P. L. 1858, 585). In October 1873, the firm of J. R. Nagle & Co., was indebted to the Mount Holly Paper Company in the sum of about $39,000. In answer to their demand for security, .John S. Morton, president of the West Philadelphia Passenger Railway Company, at the request of Nagle & Co., called upon the treasurer of the Mount Holly Paper Company, and made the following proposition, which was accepted, viz.: “ That if the Mount Holly Paper Company would advance the firm of J". R. Nagle & Co. the additional sum of $5,000 in cash, and divide the whole amount of indebtedness into notes of a convenient size for said J. R. Nagle & Co. to meet, and if not convenient to pay as they matured, to renew such or such parts thereof as they might not be able to pay from time to time; and would continue to said J. R. Nagle & Co. a line of credit, by continuing to sell them goods; he the said John S. Morton would indorse their notes, and to secure their payment, would give the Mount Holly Paper Company stock of tlie West Philadelphia Passenger Railway Oo. as collateral.” On the receipt of 550 shares of 'said stock, in certificate 1727 for 400 shares, and 1750 for 150 shares, standing in the name of John S. Morton, a paper was given by Charles S. Mullen to John S. Morton, stating that the stock was to be held “upon the express understanding and agreement as collateral security for the payment of certain promissory notes then discounted, or thereafter to be, of John R. Nagle & Co.” The notes were specified, amounting to $44,837.38. The agreement further provided, that if there should be default, “ before making any disposition of said stock, written notice should be served upon said Morton,” and that “upon payment of these notes, or those given in renewal, with the written consent of the said Morton,” the stock should be returned. By this paper it was further agreed that unless there was default, “ said stock shall not be transferred on the books of the company.” The sum of $5,000 was advanced as agreed, and the indebtedness divided “ into notes of a convenient size.” The notes now held in execution of this agreement amount to $22,000. The Master found that the agreement was in consideration of a forbearance to sue John R. Nagle & Co. and of a further cash advance to them, and that said agreement was executed.
    The said certificates of stock were delivered to the Mount II oily’Paper Company on October 15th 1873, and were never transferred from the name of the said John S. Morton, nor was any demand for such transfer made.
    Several years subsequently to that date, and before the filing of the bill, John S. Morton became indebted to the West Philadelphia Passenger Railway Company to the amount of $93,957.36, which remained due and unpaid at the time of the decree in this case.
    The Passenger Railway Company contended before the Master’, that, under the seventh section of the General Railroad Act of February 19th 1849 (P. L. 82), which provides “that no certificate shall be transferred so long as the holder thereof is indebted to said company unless the Board of Directors shall consent thereto,” the Mount Holly Paper Company was not entitled to demand a transfer of the said stock from the name of John S. Morton, or to recover the amount of said notes for which said stock was pledged, until Morton’s indebtedness to the company should be paid. On this point, the Master reported as follows: — “ The Master is of opinion that the Act of 1849 in this particular has no application to the present corporation. All of the subject matters of the Act of 1849, relative to the organization, the subscription for stock, the election of directors, and the execution of the corporate franchise, are supplied in the text of the charter. Unless in the charter a reference is made to the general railroad law, it is not to be incorporated. In the legislation of the State the franchises and charter of a horse railway company are not supposed to be included in the general railroad law. (City v. Passenger Railway, 8 Philada. 648.) The charter of the Philadelphia and Darby Railroad Company, upon which a similar question arose in Willis v. Darby Railway (6 Weekly Notes 461), contaihed an express provision that it should be ‘ subject to all the conditions and restrictions conferred and imposed by an Act to regulate railroad companies ’ (P. L. of 1858, Appendix 556).
    “ Even though it should be applicable, the Master holds that its scope is to be wholly confined to the transfer of valid stock, and that when the redress is to a grievance arising from an over-issue, as here, it is without force. No lien for indebtedness could exist on valid stock unless stipulatedi in the charter. Such liens are not recognized at common law: Dock Co. v. Heron, 2 P. E. Smith 280.”
    The West Philadelphia Railway Company and others filed exceptions to the Master’s findings, (1) in holding that the general railroad law of 1849, did not apply to the West Philadelphia Passenger Railway Company, and that the Mount Holly Paper Company were therefore entitled to demand a transfer of said shares without the prior payment of Morton’s indebtedness to the company, and (2) in holding that if said Act of 1849 were applicable to said corporation, the proviso prohibiting transfers of stock from a debtor of the company until payment of the debt, would apply only to valid stock.
    The court, after argument, sustained the said exceptions, holding that the railway company had a right of lien by virtue of the General Railroad Law of 1849 for the indebtedness of its stockholders upon the stock standing in their name, and entered a decree : “That upon the payment to the said Passenger Railway Company of the aforesaid indebtedness of said John S. Morton, to wit, the sum of $93,957.36 with interest from the 22nd day of September 1877, the said -Mount Holly Paper Company shall be entitled to receive from the; said Passenger Railway Company the sum of $22,000 with interest from the dates of maturity of the notes aggregating said amount, and shall thereupon forthwith deliver to the said Passenger Railway Company, to be cancelled, said certificates......”
    The Mount Holly Paper Company thereupon took this-appeal, assigning for error the above finding and decree of the court. 1

      James Otter son and Samuel DieJcson, for the appellants.—
    The court found in our favor, as to our right to recover the amount of the notes for which the stock was pledged, but subject to the company’s right of lien, under the general railroad law of 1849, to have Morton’s indebtedness first paid. In other words, they decided that on payment of §94,000, we could receive §20,000! The error was in holding that the general railroad law applied to this company, which was chartered, not under the general law, but by a special Act not containing the proviso of the general law that a stockholder’s debts to the company must be paid before stock in liis name could be transferred.
    Such a lien is unknown at common law, and can only exist by statutory enactment expressed in the Act of incorporation or in by-laws made by authority of the Act: Steamship Dock Go. v. Heron, 2 P. F. Smith 280; Mass. Iron Co. v. Hooper, 7 Cush. 188; Sargent v. Franklin Ins. Co,, 8 Pick. 90; Angel! & Ames on Corp."355. It has been held that the general railroad law is not applicable to a city horse railway company, unless reference is made thereto in its charter : The City v. Passenger Railway Co., 8 Phila. 648. This is a necessary conclusion from a comparison of the two Acts, which relate to essentially different classes of companies. The general Act relates to steam railways only running through the country, operated by locomotives, for the transportation of freight as well as passengers. All its provisions are based upon this assumption, and are inapplicable to a city passenger railway operated by horses. The latter is simply an omnibus company using tramways laid upon the public streets. That the legislature did not intend that the general railroad law of 1849 should apply to street passenger railways, is clear from the fact that such passenger railways were not known or in existence until long subsequently.
    Rut if the general railroad law does apply, the provision as to lien can only apply to indebtedness arising from unpaid stock subscriptions, and not to indebtedness arising from other causes long after the stock was pledged : See section 7 of Act of 1849. Secret liens are against the policy of the law, and can only be sustained by express enactment, as in the Bank Acts.
    In any case, the lien can only exist as to valid stock, and not to an unauthorized over-issue. The position of the appellants is as though they were suing at law in an action of deceit for damages for a false representation, viz.: in issuing a false certificate of stock, i. e., not a certificate of (good) stock, i. e., in law willing; and it is absurd to say that the company can have a lien upon that nothing. The company admit a liability to the holders of over-issued stock, founded on the misconduct of their officers in issuing it. For them to contend at the same time that such misconduct gives rise to a right in them to withhold compensation to third persons who have suffered from the fraud, is self-contradictory. They cannot thus reap a benefit growing out of the fraud of their own officers.

      Jhe ground on which a bona fide holder of a certificate of stock accompanied by a power of attorney to transfer, in blank, can recover against the company, is the broad one that by the uniform business of the money centres of the world, it is the intention and practice alike of the corporation, the receiver and the public, that the certificate and power is the title as against the corporation, as well as for delivery according to the rules of the Stock Exchange and for all other purposes. Otherwise business could not be transacted as it now is. It often requires two or three days to complete a transfer, while the transactions are frequently for a single day or part of a day; moreover, the books of all corporations are closed annually against transfers for considerable periods óf time. It involves no hardship to corporations — they can protect themselves, oven against dishonest officers, by having a stock registry, which can be examined at any time, and which renders an over-issue impossible.

      Joseph R. Rhoads, and John G. Johnson, for the appellees.—
    The most the appellants believed when they took the stock was, that it was good stock — but if so the company could have set oil Morton’s indebtedness. Yet they now claim, they are in a better position, as holders of bogus stock, than if it had been good stock. It is argued that the bogus stock is in law nothing, and that a lien cannot exist on nothing. But if it is not stock, no claim can be founded on it, and if it is, the statutory restriction as to transfer, which is not a mere lien, applies.
    That the charter of this company was subject to the general railroad law of 1849, so far as its provisions were not expressly supplied, is clear. The Act of 1849 expressly provides that it shall be applicable to all railroad corporations, subsequently incorporated by special Act. The lack of specific provisions in the charter of this company as to the issue, and transfer of stock, throws the company back to the provisions of the general law, in this respect. No distinction can be drawn between the terms raÜROAD and railwAv; a general statute applicable to one is applicable to the other: Hestonville Railway Go. v. Philadelphia, 36 Leg. Int. 452.
    The issuing of certificates, as evidences of the title to stock, being a statutory duty of the corporation, the company only insures the title to the particular holder, to whom it issues the certificate, unless transferred on the books to an assignee, and then a new certificate issues to him. There is no general representation for the benefit of purchasers of the certificate, with a blank power of attorney to transfer; the principle of estoppel does not exist as to strangers ; the certificate recites on its face, that it is not until after actual transfer, that assignees can claim: Central R. R. Go. v. Ward, 37 Georgia 531. The case is an analogous to the liability of the recorder of deeds, for the issue of a false certificate of search — he is only liable to the party to whom it was issued : Peabody Building Association v. Houseman, 11 W. N. C. 193. The transferee of certificates should inquire of the corporation, as the assignee of a bond must inquire of the obligor. The principle of estoppel is not applicable. The company made no untrue representation to these appellants; the latter agreed to take Morton’s indorsement of Nagle & Co.’s notes, and his stock as collateral, expressly agreeing not to demand a transfer unless default was made in the notes. They prove no damage resulting therefrom ; on the contrary, Nagie’s indebtedness on the notes was at that time $44,000, while now it is only $22,000, and so long as a loss is not established, no estoppel can arise.
   Chief Justice Shabswood

delivered the opinion of the court February 13th 1882.

The Act of Assembly passed February 19th 1849, entitled “ an Act regulating railroad companies,” Pamph. L. 79, provides that' whenever a special Act of the General Assembly shall hereafter he passed, authorizing the incorporation of a company for the construction of a railroad within this Commonwealth,” such company shall be subject to the regulations contained in that Act. By the seventh section, after enacting that certificates of stock shall be issued, “ which certificates of stock shall be transferrable at the pleasure of the holder, in a suitable book or books to be kept by the company for tliat purpose, in person or by attorney duly authorized, in the presence of the president or treasurer,” it is “ provided that no certificate shall be transferred so long as the holder thereof is indebted to said company, unless tlie board of directors shall consent thereto.”

The West Philadelphia Passenger Pailway Company was incorporated by Act of Assembly passed May 14th 1857 (Pamph. L. 1858, 585, appendix), and we are clearly of opinion that it was subject to the general regulations of the Act of 1849, unless specially altered in that charter, or inconsistent therewith. It is not pretended that there is any such alteration or inconsistency so far as the provision as to the transfer of certificates is concerned. It is contended, however, that the Act of 1849 speaks of acts authorizing an incorporation, whereas, by the Act of 1857, the appellees were directly incorporated. We think, however, that this is a distinction without a difference. Tlie legislature evidently meant that all companies incorporated by or under special Acts should be subject to tlie general regulation of the Act of 1849.

The appellants were holders of certificates of stock fraudulently issued in excess of the number of shares authorized by the charter. They had become holders by the delivery to them of a power of attorney from John-S. Morton, in whose name they stood — who was the president of the company, and by whom they had been fraudulently issued. They had not taken the necessary precaution to have them transferred on the books of the company. Had they done so without thei consent of the Board of Directors, a different question might have arisen. The company was liable, we may assume, for the fraudulent issue of the stock by their officers; but certainly, the holders can have no other or higher right than the bona fide holder by assignment and power of attorney of a real certificate issued to John S. Morton, as an original subscriber, and standing on the books of the corporation in his name. John S. Morton was heavily indebted to the company, on separate and independent transactions, altogether different,’ and superadded to i liis liability to the company for his fraud. The appellants, as to the stock standing in the name of John S. Morton, whether fraudulently issued in excess of the charter or not, stand in his shoes as against the company. It matters not when Morton’s debt to the company had been incurred. By the provision of the law he could not transfer such stock without the consent of the board of directors. In fact, it never was transferred.

It is said, however, that these certificates fraudulently issued were null and void. They evidenced no stock. It is asked, triumphantly, How can there be a lien on that which had no existence? The argument is certainly ingenious, but it rests upon a misapprehension of the rights of the appellants. Their claim on the company was not, indeed, on the stock. It was a claim to be indemnified for the fraudulent acts of the officers of the company, from which they allege that they have suffered damage. They might have demanded a transfer, and upon refusal have brought an action for damages. The defence to such an action could have been Morton’s indebtedness. If, instead of taking that course, they had sued for damages for the fraudulent act, they could still have been met by the same plea. If you had been in possession of valid certificates, you could not have recovered for a refusal to allow you to transfer ; how, then, can you recover on these false and fraudulent certificates ? This would clearly be inequitable; and this proceeding is in a court of equity.

We think there was no error in the decree of the court below.

Decree affirmed, and appeal dismissed at the costs of the appellants.


author: Mr. Justice Sterrett

text:
    Patterson’s Appeal.
    A paper box manufacturing company, in order to prevent the possible consequences of an injunction for the infringment of existing patents, and also in order to place itself in a better position to control the trade, contracted with A., the holder of a patent for making such boxes, and was granted exclusive privileges under said patent. It was also authorized to prosecute all persons infringing the same, and undertook to pay to A. certain royalties on all boxes manufactured. A clause in the contract provided that if in the course of litigation an injunction should bo refused by the United States courts against any party infringing A.’s patent, thereby declaring the same untenable and invalid, all royalties were to cease. The company manufactured boxes under the contract, and continued for some time to pay to A. the stipulated royalties. Ultimately, however, it ceased to do so, whereupon A. filed a bill in equity to enforce payment. The company set up as a defence the invalidity of A. ’s patent for lack of novelty. Held, that under the contract, the company was bound to pay the stipulated royalty until the judicial determination of the invalidity of A.’s patent by the refusal of an injunction against an infringer, and that, therefore, A. was entitled to the relief sought by him.
    January 31st 1882.
    Before Sharswood, C. J., Mbrcub, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal from the Court of Common Pleas Is o. 3, of Philadelphia county: Of July Term 1881, No. 76.
    Bill iu equity, by Cunningham S. Patterson, against the Novelty Paper Box Company, praying for an account, and that the defendant be decreed to pray the complainant certain royalties for the use of a patented invention.
    The bill set forth: that by an agreement under seal, dated November 30th 1877, the plaintiff granted to the company defendant “sole and exclusively of all others the license and right to make, use and sell in the United States all the devices granted to Charles T. Palmer for the manufacture of paper or pasteboard boxes, in patent No. 132,368, dated October 22nd 1872, and to make and sell such boxes, of which patent said C.
    S. Patterson is now the sole owuer.” The said agreement provided further as follows -“ The party of the first part hereby also grants full and irrevocable power and authority to the party of the second part under them and in their name to license any other parties to use the said devices, and to make and sell such boxes when not fastening the same with wire-staples ; to charge and collect from such persons such royalties as may be agreed upon, for the use and benefit of the party of the second part. The party of the first part further grants to the party of the second part authority in his name to prosecute any and all parties infringing the said Palmer patent, and to recover from any such all damages or penalties as may by courts of justice or otherwise be awarded, to the sole use and benefit of the said party of the second part; the said party of the second part bearing all costs of any such litigation. In further consideration of this license and powers granted, the said party of the second part will, on the proper execution of this agreement, hand over to the party of the first part one hundred shares of The Novelty Paper Box Company’s stock; and the said party of the second part further agrees to, and will pay to the said party of the first part, commencing with the month of July, 1877, a royalty of fifty cents for each one thousand paper boxes sold and delivered by them during each month, payable at the expiration of one month thereafter, until expiration of said Palmer’s patent: Provided, however, That should in course of litigation, an injunction by the United States courts be refused against any party or parties infringing the said Palmer patent, thereby declaring the same untenable or invalid, then from such period all royalties accuring and payable to the said party of the first part shall cease. This agreement to terminate in the event of the party of the second part failing to comply with the above conditions; and in that case the said license and powers conferred hereby to revert again to the party of the first part.”
    The bill averred that the defendant complied with the agreement and paid the royalties up to December 1st 1878, since which time they had ceased to pay royalty, although continuing to manufacture under the patent. The bill prayed a decree as above stated.
    The defendants filed an answer and a cross-bill, in which they averred that the alleged patent was invalid for want of novelty, that other parties were making similar boxes, and both the complainant and the defendants wrere powerless to prevent them ; that the defendants were induced by misrepresentations of complainant as to the validity of the patent to execute the agreement, which they did “ under a mistake; ” and that the consideration having failed they were released from further compliance therewith, and had terminated the same on December 1st 1878, by ceasing to pay royalties. The defendants prayed that the said agreement be cancelled, and that complainant be decreed to repay to defendants, the moneys and stock they had paid under the terms thereof.
    The Master to whom the cause was referred, reported that the defendants had entered into said agreement in order to relieve themselves of the consequences of an alleged infringement of said patent, and also to control the trade by restraining others from manufacturing a similar article; that the defendants had, as shown by the evidence and letters produced, as well as by the agreement, taken the chances of the validity of the patent; that the defendants had commenced a suit in the Circuit Court of the United States for the district of New Jersey to enforce their rights under said patent, but had subsequently abandoned the same, being advised by counsel that they could not obtain a decree in their favor: and that no decree had been made in the cause. The Master held that as the. agreement provided that royalties should cease only in the event of a decree of the United States court adverse to the patent, the opinion of counsel could not be substituted therefor, and sucli opinion afforded no defence: he therefore reported in favor of the plaintiff, and, upon the statement of an account, recommended a decree that the defendants pay the plaintiff the sum of $4,107.79, being the amount of royalties due, with interest and costs.
    The defendants filed exceptions to the Master’s report, and after argument the court entered this decree : “ And now, May 31st 1881, it is ordered and adjudged that the finding of the Master be reversed, and it is decreed that complainant’s bill in this cause be dismissed with costs; and it is also decreed that the cross bill be dismissed without costs.”
    From this decree the complainant took this appeal.

      Heotor T. Jfenton, for the appellant.

      J. Edward Oarponter and M. B. Philipp, for the appellees.
   Mr. Justice Sterrett

delivered the opinion of the court, March 6th 1882.

The rights and liabilities of the parties to tliis contention must be measured and determined by their agreement of November 1877; considered in connection with what subsequently occurred in relation to the subject matter thereof.

By the terms of that agreement the appellant, as assignee of certain letters patent issued by the United States to Charles T. Palmer in October 1872, granted to the Novelty Paper Box Company, the appellee, the sole and exclusive right and license to make, use and sell all the devices for the manufacture of paper-or pasteboard boxes, covered by said patent, and to make and sell such boxes. He also granted to said company full and irrevocable power and authority to license any other parties to use the said devices and to make and sell such boxes, with the right to charge and receive, to its own use, such royalties as the sub-licensees might agree to pay; and also, in his name, but at its expense, to prosecute all parties infringing said patent, and recover, for its sole use and benefit, all damages or penalties that might be awarded against them by courts of justice or otherwise. In consideration of the license and powers thus granted,, the appellee agreed to give appellant one hundred shares of its capital stock and pay him a royalty of fifty^ cents per thousand for all the paper boxes sold and delivered by it during each month, until the expiration of the patent: provided however, that should, in the course of litigation, an injunction by the United States courts be refused against any party or parties infringing the said Palmer patent, thereby declaring the same untenable or invalid, then and from such period all royalties accruing and payable to the said party of the first part shall cease.”

The agreement also contains a stipulation that it shall terminate in the event of the company failing to comply with the conditions thereof; and, in that case, the license and powers granted shall revert to • appellant. This provision was evidently intended for the benefit of appellant, and not for the purpose of enabling the appellee at his own option to terminate the contract by simply refusing to comply with its terms.

It is very evident from the provisions of the agreement, that' the parties thereto did not regard the validity of the patent as entirely free from doubt: and that, in consequence of its doubtful validity, or for other reasons, the devices claimed by the patentee were being used by others without license. From testimony which fully warranted his conclusions, the learned Master found, substantially, that for some time prior to the date of the contract the company appellee was engaged in making paper boxes on the principle covered by the Palmer patent; that, with the view of avoiding the possible consequences of an injunction for infringement, and at the same time of placing itself in a better position to control the trade, by restraining others from making boxes of like form and character as those made under the Palmer patent, the company commenced negotiations with appellant which resulted in the contract hereinbefore referred to, and that in so doing the company assumed all the risk of the validity of the patent.

This fully accords with the letter as well as the spirit of the agreement. The company acquired the license, and undertook to prosecute infringers, at its own expense and for its own benefit, and in consideration of the advantages thus secured to itself, it agreed to pay appellant the stipulated royalty until the expiration of the patent, with the proviso that if, in the course of the contemplated proceedings against those who were using the patent without license, the proper court refused an injunction on grounds involving the invalidity of the patent, then and in that event the payment of royalty should cease.

The only construction of which the contract is fairly susceptible is that the stipulated royalty was to be paid monthly until the expiration of the patent, unless its validity was sooner impeached by a refusal of the proper court to restrain those who were supposed to be infringing it. Having enjoyed the advantages thus contracted for, the appellee is bound to pay tlie consideration therefor. Tlie authorities cited and relied on by the learned counsel for the appellee are not applicable to the facts of this case. Upon the facts found by the learned Master the decree recommended by him should have been adopted.

Decree reversed, and it is now adjudged and decreed that the appellee pay to appellant the sum of four thousand one hundred and seven dollars and seventy-nine cents, with interest from May 1st 1880: that the cross-bill be dismissed, and that the appellee pay the costs, in-including the costs of this appeal.


author: Mr. Justice Mercuk

text:
    Appeal of John W. Biddle et al.
    A testator by his will, after bequeathing certain legacies, devised and bequeathed all the residue of his estate to his executors in trust, to let and demise the real estate, to collect the rents and profits, to sell and convey the real estate, to permit a certain party to occupy certain premises for her life, and to pay the insurance and taxes thereon, to invest the proceeds of real and personal estate, to pay certain annuities and to pay a certain party $1,000 “when he shall arrive at and if lie shall live to the full age of twenty-one years.” He then further directed his said executors, after the decease of the said annuitants and of the said legatee before attaining majority, to convey and assign all the residue of his estate, together with the accumulations which might be in their hands after the decease of said annuitants and legatee, to a charity. Testator further directed that the said legacies and annuities should be paid out of the income of his estate, so far as the same would suffice, before any part of the capital should be used for that purpose. At the time of testator’s death, the annuitants were all alive, and the legatee had not attained majority. The account of the executors showed a principal in their hands sufficient to produce an income largely in excess of that required for the payment of the annuities and legacy. The court thereupon set apart and allowed them to retain a sum, the income of which was amply sufficient for said purpose, and awarded the balance to the charity. Held, that this was error. It was the clear intent of the testator to postpone tlie period when the charity was to enjoy his bounty, until after the death of the annuitants, and until that time, his executors were entitled to retain the property with the accumulations.
    February 1st 1882.
    Before Siiarswood, C. J., Mercur, Gordon, Paxson, Trunkey, Stkkrett and Green, J J.

    Appeal from a decree of the Orphans’ Court of Philaddphia county : Of January Term 1882, No. 214.
    This was an appeal by John W. Biddle, Joseph G. Heuszey, Daniel W. Slack and Alexander D. Stockton, executors of the last will and testament of Alexander J. Derbyshire, deceased, from a decree of the said court, making distribution of the property appearing from an account held by ap]3ellants to be in their hands.
    The facts of the case were as follows: — Alexander J. Derby-shire died in March 1879, leaving a will wherein appellants were nominated as executors. By the said will, the testator, after bequeathing certain legacies, provided, inter alia, as follows:
    I give, devise, and bequeath to my executors, and the survivors and survivor of them, and the heirs, executors, administrators, and assigns of such survivor, all the rest, residue, and remainder of my estate, real and personal, of which I may be seised and possessed, and to which I may be in any wise entitled at my decease, and which I have not hereinbefore otherwise given, bequeathed, and disposed of, with the appurtenances, to have and to hold the same unto my said executors, and the survivors and survivor of them, and the heirs, executors, administrators, and assigns of such survivor, in trust nevertheless to and for the uses and purposes hereafter mentioned, that is to sayin trust to let and demise the real estate, and to collect the rents, and income together with full power of sale. In trust to permit and suffer Algemine D. Smith to occupy a certain building during her natural life, the executors to pay the insurance and taxes thereon; in trust to invest the proceeds of real and personal estate in safe and reliable securities; in trust to pay an annuity of $3,000 to said Algemine D. Smith; one of t$800 to Caroline Derbyshire and one of $600 to Eliza Ann Henszey ; in trust also to pay to Alexander J. Derbyshire, Jr., the sum of $1,000 “ when he shall arive at and if he shall live to the full age of twenty-one years” and upon further trust “ and my said executors are hereby directed, after the decease of the said Algemine D. Smith, Caroline Derbyshire, and Eliza Ann Henszey, and of the said Alexander J. Derbyshire, Jr., before his arrival at the age of twenty-one years, to convey, assign, transfer, set over, and pay, unto the Contributors to the Pennsylvania Hospital, their successors and assigns, for the charitable uses of said institution, all the rest, residue, and remainder of my estate, real and personal, and of the income, rents, issues, profits, and accumulations thereof, which may remain in the hands of my said executors, unsold or undisposed of as aforesaid, after the decease of the said Algemine D. Smith, Caroline Derby-shire, Eliza Ann Henzey, and Alexander J. Derbyshire, Jr., as aforesaid, and after paying and discharging all my debts and funeral expenses, and all the annuities, legacies, bequests, and sums of money hereinbefore and hereinafter devised and bequeathed, or directed to be paid, and after paying for and discharging all the charges, taxes, repairs, and insurance upon all my estate and property, real and personal, and all the charges and expenses incident to the sale, management, and settlement of my estate and property as aforesaid, and as hereinafter mentioned.”
    The testator added a provision to this effect: “The said several legacies, annuities, bequests, and sums of money herein-before directed to be paid shall be paid out of the rents, income, issues, and profits of my estate, so far as the same will suffice, before any part of the capital or principal thereof shall be used for the purpose.”
    At the time of the testator’s death all the beneficiaries named in the will were alive, the said Alexander J. Derbyshire not having attained his majority.
    U pon the filing of the account of the executors, it appeared that they had in their hands a principal of $326,147.49, producing an annual income of $18,000, to meet annuities which amounted to $4,400 per annum only. It was contended on behalf of the Contributors to the Pennsylvania Hospital that the primary object of the testator was to secure the payment of the interest of $4,400, per annum, to the objects of his bounty; that, subject to the payment of said life interest to the annuitants, the whole estate was vested in them in remainder; and that after a sufficient fund was set aside for that purpose, they were entitled to the present enjoyment of the balance of the estate, both principal and income. They suggested that $125,000 was fully sufficient for that purpose, and asked that the balance of personal estate, amounting to $95,547.49, should be at once transferred to the hospital, “ for the charitable uses of the institution,” and that the net income of the real estate, after the payment of taxes, repair’s, etc., and the expenses of keeping up the property on Fourth street, for Algemine D. Smith, should hereafter annually be paid to them, for the same purpose.
    J. Sergeant Price, Esq., the auditor to whom the account had been referred, was of opinion that such distribution should not be made. Exceptions were thereupon filed to his report by the Contributors to the Pennsylvania Hospital, which were sustained by the court in the following opinion by Ashman, J.:
    “It is unnecessary to consider some of the topics which seem to have boon discussed before tbe auditor. The Act of 18th of April 1853, forbidding accumulations, exempts bequests to charities from its operation, and has, therefore, no application to the will of this decedent. So it may be conceded that the testator was acquainted with the terras of the bequests made by other donors to the several charitable institutions with which he was identified. But it would be hazardous to base au interpretation of his own testamentary intent upon the judgment he may be supposed to have formed respecting similar gifts by others, unless that judgment had been most clearly and unmistakably indicated. In the single instance in which, according to the auditor’s report, the testator seems to have expressed an opinion, his criticism was adverse to a trust for accumulation.
    “ By clause I. of his will, the testator provided as follows: ‘ My said executors are hereby directed, after the decease of the said Algemine D. Smith, Caroline Derbyshire, Eliza Ann Henszey, and of the said Alexander J. Derbyshire, Jr., before his arrival at the age of twenty-one years, to convey, assign, transfer, set over, and pay unto the contributors to the Pennsylvania Hospital, their successors and assigns, for the charitable uses of said institution, all the rest, residue, and remainder of my estate, real and personal, and of the income, rents, issues, profits, .and accumulations thereof, which may remain in the hands of my said executors, unsold or undisposed of.’ In the same instrument he had previously given an annuity to Algemine D. Smith of $4,000, for two years after his death, and thereafter of $3,000 during her life; to Caroline Derbyshire an annuity of $800 for life; to Eliza Ann Henszey an annuity of $600 for life; and to his nephew, Alexander J. Derbyshire, Jr., a legacy of $1,000, to be paid to him provided he should attain twenty-one years of age. His estate was valued at $326,147.49, yielding an income of $18,000 per annum. The auditor held that the payment of the legacy to the hospital must await the de^th of the several annuitants, and that in the mean time the surplus income must accumulate for the benefit of the charity.
    “ The will was written by the testator himself, and, in some respects, inartificially. A literal construction of the language in the clause which created the trust would annul the bequest to the charity in the event of the survival of the nephew after twenty-one. It is manifest from the whole will that the testator could never have contemplated such a result; but that he meant that the legacy to the nephew should go to the hospital in case of the nephew’s death in his minority.
    “Two very practical questions are presented: Was any special purpose to be subserved by an accumulation of the whole fund, and were there facts within the knowledge of the testator showing that the charity would- be best promoted by a present distribution % The only clue which the will affords to the first proposition is its silence as to any such purpose. There is no hint in the whole instrument of any proposed enlargement of the scope of the chai’ity, or of any change in its methods, which would render necessary a separate and large endowment. The legacy is given ‘for the charitable uses of said institution.’ Wliat those uses were no one knew bettor than the testator himself. It is found as a fact by the auditor that the testator had devoted to the hospital more than twenty-two years of the most valuable portion of his life, and that he was thoroughly acquainted with the details of its management and the means by which it was supported. He must therefore have been cognizant of the fact, which is also expressly found by the auditor, that the demands upon the charity were pressing, and that its necessities were such that the present enjoyment of so largo a legacy would be extremely helpful.
    “ We are not obliged, however, to go outside of the will to discover with reasonable certainty the intention of the testator. Trusts for accumulation are nob specially favored by law, and their evils, even when the ultimate object of the trust is a charity, were summarized by Hibson, C. L, in Hillyard v. Miller, 10 Barr 320. It is impossible to gather from the will a reason why the testator should seek to divert a fund from those to whom it must eventually come, merely to secure a purposeless accumulation. The instrument contains no direction to accumulate, beyond what may be inferred from the use of the word accumulations in the clause which has been quoted. But that word will apply, without any forced rendering of the sentence, to the surplus income of the fund which might be set apart for the annuities. If it had been designed that the fund, after payment of the annuities, should remain intact for the purposes of accumulation until the death of the survivor of the annuitants, it is reasonable to suppose that words of survivorship would have been employed ; and the absence of such words, and of all directions to accumulate, is sufficient evidence of an intent to effect an earlier distribution.
    “ The whole scope of the will leads up to tho charity as the ultimate object of the testator’s bounty and the recipient of the entire residuary estate. We have seen that this bequest could not have been meant to depend uponJhe death of the testator’s nephew before twenty-one, although that would be the literal result of the language used. For the reasons already given, there, is as little room for the belief that the testator meant to postpone the benefit to the charity to a more or less remote and indefinite period ; while there is every ground to assume that he intended tho gift to vest in possession along with the other bequests. We should hesitate long before venturing to remodel the language of a will. But if, by transposing a single member of the sentence which conveys the gift, without adding or removing a word, we may overcome a latent ambiguity, we certainly liave the power to make the alteration. Such an innovation would be no greater than that wrought by Lord Eldon, in Sidney v. Shelley, 19 Yes. 352, where the words, ‘ subject to the trusts thereof,5 were considered as inserted. By the change which is suggested, the clause will read : ‘ My said executors are hereby directed to convey, assign, transfer, set over, and pay unto the Contributors to the Pennsylvania Hospital, their successors and assigns, for the charitable uses of said institution, all the rest, residue, and remainder of my estate, real and personal, and after the decease of the said Algemine D. Smith, Caroline Derbyshire, Ann Henzsey, and of the said Alexander J. Derbyshire, Jr., before his arrival at the age of twenty-one years, of the income, rents, issues, profits, and accumulations thereof which may remain in the hands of my said executors unsold or undisposed of.5 Under the clause as thus constructed, a sufficient fund can be set apart to meet the several annuities and the legacy of $1,000, and the balance of the estate can be paid immediately to the charity. Upon the death of ah annuitant, the question can be raised and determined whether the proportion of the fund appropriated for the payment of her annuity will be presently payable to the hospital, or will be held to await the death of the remaining annuitants.
    It may be observed, that the question of acceleration is not raised by this record, and we are relieved from discussing the cases upon that point, which, in England at least, are certainly conflicting. That question arises, according to Jarman, vol. i. p. *513, where, in a series of consecutive limitations, a particular estate is void in its creation from being limited to a person incapable by law, or who refuses to take, in which case the remainders immediately expectant on such estate are either accelerated, or the interest in question descends to the testator’s heir-at-law. There is no such void estate in this instance, and the only inquiry is as to the intention of the testator.

      “ It was agreed before the auditor that the sum of $125,000 would constitute an ample fund to sustain the annuities. We therefore award that sum to the executors, to meet the annuities and legacy of $1,000, and the balance to the Contributors of the Pennsylvania Hospital.55
    A decree was subsequently entered in accordance with the above opinion. The executors thereupon took this appeal, assigning for error the decree of the court.

      John O. Jolvnson, for appellants. —
    If the testator intended that the hospital should not take until after the death of the annuitants, the intent was legal and must be enforced. Postponements of enjoyment of vested remainders by charities are respected where similar directions, as against individuals, would not be City of Philadelphia V. Girard, 9 Wright 1 ; Harbin
      '0. Mastermau, L. R. 12 Eq. 559. And this, even though an accumulation was not distinctly directed and only results incidentally.
    The expicss terms of the testator’s will clearly postpone the period of the hospital’s enjoyment of his estate until after the death of the annuitants. Express words are not requisite for a valid direction to accumulate, if what is ordered necessarily brings about an accumulation: Tench v. Cheese, 6 De G. M. & G. 453; Mathews v. Keble, L. K. 3 Clx. App. 695.
    In the present case, the directions of the testator result inevitably in an accumulation, and also amount to an express direction to accumulate.
    The decree of the court clearly violates the intention of the testator, and is not authorized by law.

      A. Sydney Biddle, for the appellees. —
    The testator clearly did not intend to postpone the enjoyment of his bounty by the hospital until after the death of the annuitants. His aim was simply to indicate that his estate was subject to the annuities in question, and that the amount not required to fully secure the annuities, was to be paid to the hospital directly.
    The phrase “ after paying and discharging all my debts and funeral expenses .... and after paying for and discharging all the charges, taxes, repairs and insurance upon all my estate and property real and personal, . . . . ” clearly means only that the balance of his estate, unnecessary for said purposes, shall be paid directly to the hospital. Such is also the proper construction of the word “after” in the other clauses of testator’s will: Lamb v. Lamb, II Pick. 371; Doe ». Dacre, 1 .Bos. & P. 250; Luxford v. Cheeke, 3 Lev. 125; Browne v. Hammond, Johns. (Eng.) 210; Meeds v. Wood, 19 Beavan 15 ; Massey v. Hudson, 2 Merivale 130; Key v. Key, 4 De G. M. & G. 73; Franks v. Price, 3 Beavan 182.
    It is inconceivable that the testator should have intended his executors to accumulate without saying so in express terms, particularly as the ordinary motives for accumulation are wanting in the case of a charity.
    Apart, moreover, from the testator’s meaning, the Act of 23d February 1853, P. L. 98 (Purdon, 451, pi. 227), provides that the balance of an estate may be relieved from the lien of annuities by giving to the Orphans’ Court the power to set apart a sufficient portion of the personal property to secure them. The decree of the court was clearly proper under this act. ..
   Mr. Justice Mercuk

delivered the opinion of the Court, October 5th 1882.

It is a cardinal rule in the construction of a •will, that the intention of the testator shall govern, whenever that intention is clearly manifested, and is not in conflict with established principles of law: Findlay v. Riddle, 3 Binn. 149; Middleswarth’s Administrator v. Blackmore, 24 P. F. Smith 414; Schott’s Estate, 28 Id. 40. All mere technical rules of construction must give way to the plainly expressed intention of a testator if that intention be lawful. It is a rule of common sense as well as of law not to attempt to construe that which needs no construction : Reck’s Appeal, Id. 432. The popular meaning of a word is the best criterion of the intent of a testator: Hunter’s Estate, 6 Barr 97.

This contention is between the executors and testamentary trustees of Alexander J. Derbyshire on the one side, and the Contributors to the Pennsylvania Hospital on the other. The latter are the residuary devisees. The question is, whether the time has come which gives them a right to demand any portion of the sum so devised?

After disposing of certain sums of small amounts, the testator proceeds: “ I give, devise, and bequeath unto my executors hereinbefore named and the survivors and survivor of them, and the heirs, executors and assigns of such survivor, all the rest, residue and remainder of my estate real and personal, of which I may be seised and possessed, and to which I may be in any wise entitled at the time of my decease, and which I have not hereinbefore otherwise given, bequeathed and disposed of, with the appurtenances, to have and to hold the same unto my said executors and the survivors and survivor of them, and the heirs, executors, administrators, and assigns of such survivor, in trust nevertheless to and for the uses and purposes hereinafter mentioned, that is to say.” In trust, inter alia, to let and demise real estate ; to collect rents and income; to sell and convey real estate; to permit Algemine D. Smith to occupy certain buildings during her natural life, the executors to pay the insurance and taxes thereon ; to invest the proceeds of real and personal estate, in safe and reliable securities; to pay an annuity of $3,000 to Algemine D. Smith ; one of $800 to Caroline Derby-shire ; another of $600 to Eliza Ann Henzsey; and to Alexander J. Derbyshire, Jr., the sum of $1,000 “ when he shall arrive at and if he shall live to the full age of twenty-one years ;” and in trust further, “and my said executors are hereby directed after the decease of the said Algemine D. Smith, Caroline Derbyshire, and Eliza Ann Henzsey, and of the said Alexander J. Derby-shire, Jr., before his arrival at the age of twenty-one years, to convey, assign, transfer, set over and pay unto the Contributors to the Pennsylvania Hospital, their successors and assigns, for the charitable uses of said institution, all the rest, residue and remainder of my estate real and personal, and of the income, rents, issues, profits, and accumulations thereof which remain in the hands of my said executors unsold or undisposed of as aforesaid after the decease of the said Algemine D. Smith, Caroliuo Derbyshire, Eliza Ann Ilenzsey, and Alexander J. Derbyshire, J r., as aforesaid, and after paying and discharging all my debts and funeral expenses, and all the annuities, legacies, bequests and sums of money hereinbefore and hereinafter devised and bequeathed, or directed to be paid, and after paying for and discharging all the charges, taxes, repairs, and insurance upon all my estate and property real and personal, and all the charges and expenses incident to the sale, management, and settlement of my estate and property as aforesaid, and as hereinafter mentioned.” In a subsequent clause the testator declares, “ that the said several legacies, annuities, bequests and sums of money hereinbefore directed to be paid, shall be paid'out of the rents, income, issues, and profits of my estate, so far as the same will suffice, before any part of the capital or principal thereof shall be used for that purpose.”

All the annuitants are still living, and Alexander J. Derby-shire, Jr., is under twenty-one years of age.

The residuary devise, being in trust for a charitable use and purpose, comes within the proviso to the 9th section of the Act of 18th April 1853, and therefore is not within the prohibitory clause of the section forbidding accumulations after the death of the testator, for a term longer than therein specified.

As the interest on the whole fund is found to be in excess of the sum required to pay all the annuities, the court ordered that a portion of the principal of the estate be now paid over to the hospital. This is assigned for error.

The portions of the will to which we have referred, show the whole estate, present and prospective, to be given to the executors upon trusts clearly defined. They are to hold and manage the whole estate existing at the death of the testator, and also the subsequent accumulations. They are to collect the rents and profits; sell lauds ; invest proceeds of lands and all unexpended funds coming to their hands: pay the taxes and insurance on the buildings devised to Algemine D. Smith, for her life, keep the same in repair, and in case of destruction by fire, rebuild them. The specific direction to invest the accumulations clearly assumes a probable increase of the estate, during the life of annuitants: yet there is no intimation either expressed or implied that prior to their death, any portion thereof shall be given to tlfe hospital.

The transfer or payment to the hospital is not to be made in installments or at different times: but all at one time. It is not to be made until ‘£ after ” the decease of the annuitants, and not until “after” payment of all charges, taxes, repairs and insurance: and not until “after” payment of all charges and expenses incident to the sale, management and “ settlement” of the whole estate. “After” every other purpose of the trust has been fulfilled and satisfied — then, and not till then, the testator directs a transfer be made to the hospital. • The trust is active during the life of the annuitants.

It is clearly manifest from the whole context of the will, that the testator intentionally used the word “ after ” to indicate the time when the hospital should enjoy his bounty. It was not to take subject to previous devises and annuities. The language did not relate to the death of the testator, and import a right to any enjoyment before the time designated, as in Lamb v. Lamb, 11 Pick. 371. That case, as well as Key v. Key, 4 De Gex, Mac. & Gov. 73; Franks v. Price, 3 Beavan 182; Massey v. Hudson, 2 Meriv. 130, and kindred cases do not apply to the language of the will now under consideration. The intent is so clearly expressed, that the authority of no adjudged case is necessary to give effect to its language. If any be desired, it may be found in Harbin v. Masterman, L. R. 12 Equity 559.

Why then shall the clear and explicit directions of the testator be disobeyed ? His right to postpone the time when the hospital shall enjoy the fruit of his bounty cannot be denied. It is not in conflict with any principle of public policy, of religion or moralitjq and does not impinge on any statute. ' Pull effect must, therefore, be given to the clear intent of the will: Bainbridge’s Appeal, 1 Outerbridge 482.

Reasons satisfactory to the testator induced him to withhold all aid from the hospital until the time when the whole trust of the executors was to be determined. In giving construction to this will, we need not seek for the motive of the testator. It was not necessary for him to state it, and he has not. His beneficiaries have no right to inquire his reasons for giving at once to some, and after a long interval, to others. He may have thought it for the best interests of the hospital to withhold his aid, until he could give it the whole residuary fund of his large estate. He may have thought its future necessities would be greater than the present. In the absence of reasons stated by him, we must not conjecture some, and thereby prevent the reasonable and natural meaning of the language used. As was said in Bainbridge’s Appeal, supra, the testator may have thought, as the good man of the house said to the laborer who complained of the inequality of payment, “ is it not lawful for me to do what I will with mine own ?”

It is of no consequence that we may think the testator might well have given a portion of his estate to the hospital on his death, or at some earlier period of time, than expressed in liis will. He thought otherwise, and the opinion of others as to what he ought to have done, cannot be substituted for what he did do. llis will must control. The language thereof is too clear to attempt to construe that which needs no construction. We think the learned judge erred in decreeing that a portion of the fund be now paid over to the Contributors of the Pennsylvania Hospital. They must abide their time.

Decree reversed at the costs of the appellees ; and distribution is ordered to be made conformably with this opinion.