author: Per Curiam,

text:
    Lackawanna Lumber Company v. Kelley, Appellant.

      Ejectment — Evidence—Adverse possession — Cutting timber.

    In an action of ejectment binding instructions; for plaintiff are proper where it appears that defendant’s record claim was based upon a deed executed by an attorney-in-fact-who had only .power to make an executory contract for the sale of land, that defendant’s claim to.title by adverse possession, was not supported by any evidence of cultivation whatever, and that the only acts of dominion of defendant or his predecessors consisted of an occasional trespass for the purpose of cutting timber.
    Argued March 16, 1908.
    Appeal, No. 255, Jan. T.,1907, by-defendant, from judgment of C. P. Clinton Co., May T., 1901, No. 147, on verdict for plaintiff in case of Lackawanna Lumber Company v. Uriah Kelley.
    Before Mitchell, O. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Ejectment for land in Leidy township.
    At the trial the court gave binding instructions for the plaintiff.
    Yerdict and judgment for plaintiff.
    On a motion for a new trial Hall, P. J,, filed the following opinion.
    After full argument and careful examination of' the testimony in this case the court is unable to say that there was any error in the former trial, nor has anything been presented from which we can conclude the possibility of a different result if a new trial were granted.
    Alexander Kelley, the father of the present defendant, took a conveyance of 116 acres and twenty-two'perches of.land from Horace M. Bliss, June 25, 1839. His deed was recorded the next day and he went into possession some time thereafter. All of the land described in this, conveyance lies upon the north side of Kettle creek, except a small portion in the southeastern corner which presents the general shape of a right angle triangle, the base or southern boundary of which extends east from the creek about sixty rods, the perpendicular running thence north about the same distance to a point where it strikes the creek again opposite the mouth of Hammersley’s Fork, and the creek itself forms the hypothenuse or northwestern side of this triangle. The defendant claims that after his grandfather had gone into possession of the land described by the Bliss conveyance he discovered that about forty acres on his northern boundary was an interference with the land of one Daugherty, and consequently to this part of his conveyance his ancestor took no title, and that in order to make the deficiency good Mark Slonaker, who had a power of attorney from the plaintiff’s predecessors in title, undertook to give him an equal amount of land on the south side of Kettle creek adjoining his former conveyance, and that one Solomon Bastress, a surveyor, ran out the lines of this tract and marked them upon the ground. In support of this contention he offered in evidence a power of attorney from William Williamson, trustee, dated November 10, 1843, more than four years after the date of the conveyance to Kelley, authorizing Slonaker to make and deliver written executory contracts or agreements of bargain and sale for the sale and disposal of certain lands, including the lands in controversy. It does not confer upon him any right to affect the title of his principal by any other act than the execution of written contracts or executory agreements of sale. That he did attempt to rectify the alleged mistake in the Kelley conveyance rests entirely upon the testimony of Jane Corbin, a sister-in-law of Alexander Kelley, the original grantee, a woman now seventy-five years of age. She testified that she thinks she was twelve or thirteen years old when she heard a conversation between Mark Slonaker, Solomon Bastress and Alexander. Kelley relating to the fact that Daugherty was finding fault with Alexander about his land and that Slonaker said “ we will run on the other side and let Daugherty keep his land.” After which she says, the three crossed the creek in a canoe carrying their surveying instruments and maps and went up the hill blazing the trees. And she says when they came back they stayed at her father’s and she heard them tell her father that they had run Kelley’s timber lot out. This statement of Jane Corbin’s is followed by the introduction of a map drawn by Solomon Bastress and indorsed in his handwriting as follows: “ The above draft represents a certain piece of land lying at the First fork of Kettle Creek in Clinton County, it being part of the Henry Drinker lands and part of Warrant No. 1085 and conveyed to Alexander Kelley by Horace M. Bliss and Sarah his wife, by deed dated 25 day of June, A. D. one thousand eight hundred and thirty-nine; recorded in the office for recording deeds, etc., in and for Lycoming County in Deed Book A A page 68 the 26 day of June, 1839. Solm. Bastress.” The map itself, however, does not follow in any respect the courses and distances recited in the conveyance to Kelley referred to, but seems to be an attempt to relocate the lands so as to take in about forty additional acres on the south and to leave out about forty acres on the north which was included in the original conveyance. It appears that there are marks upon the ground south of Kettle creek made in 1843 showing lines which correspond generally with that portion of the Bastress map which shows territory south of the original conveyance to Kelley. In 1843 Jane Corbin was only eleven years old. To the additional forty acres included in the Bastress survey there was never any conveyance from the owners to Kelley. On the contrary, the owners conveyed this land to other parties in 1853, and from the year 1853 down to the present time the title to that portion of it which lies west of Turtle Point Run, which is the land in controversy in this suit, has been in parties other than those'who held title to that portion of it lying east of Turtle Point Run.
    Let it be clearly understood that there is no dispute as to lines and boundaries in this case. The location of the original conveyance to Kelley is admitted; some of the original corners are still upon the ground. Neither is there any question as to the location of the additional forty acres contained in the Bastress survey, but the defendant must sustain title to this, if at all, upon the ground that it was a parol gift of land followed by his entry thereon, under color of title and his subsequent maintenance of possession thereof, either by residence or cultivation within its lines continuously and openly for a sufficient period to establish a title in him by prescription. There was no such evidence in the case and no offer made by the defendant that would have covered this point if admitted. We are satisfied that if Kelley had entered upon any portion of this forty acre tract under color oí title and had maintained possession thereof■, either by residence or cultivation, for a period of twenty-one years, it would have been sufficient to draw to him all of the land contained within this additional tract as shown by the marks upon the ground land including the timber, lying west of Turtle Point Run, now in controversy, even though such residence or cultivation had been on that portion of thó tract lying east of Turtle Point Run which has been owned by other parties since 1853 and which is not involved in the present suit. But as we have said there is no such testimony and no such offer. The defendant it is true offered to prové that Kelley’s widow‘received pay for certain timber which was cut on the Bastress survey east of Turtle Point Run and to show that this widow leased part of the lands east of Turtle Point Run for banking purposes, and defendant also offered to prove that timber on this tract east of Turtle Point Run was cut by the said widow and other heirs of Alexander Kelley after her death ; and all of the offers relating to the taking of timber specifically cover not only all of the land east of Turtle Point Run within the additional forty acres, but also the triangular piece lying on the north of it and between it and Kettle creek which was contained in Kelley’s original conveyance from Bliss, but none of the offers relating to the taking of timber or the banking of logs would be sufficient if proved to create a title by prescription, and when it comes to the making of an offer to prove cultivation on the land south of Kettle creek, the offer is very ingeniously drawn to the effect “ that a portion of the land east of Turtle Point Run suitable for cultivation was cultivated many years.” This part of the offer is fatally defective in failing to specify that the cultivation existed for a sufficient period of years to establish title by prescription. Its ingenuity consists in the fact that it does not specify that the portion of land which was cultivated was within the lines of the additional forty acres. As a matter of fact the cultivation referred to on the lands east of Turtle Point Run occurred within the lines of the original conveyance from Bliss to Kelley. This is shown by the testimony of both Mr. Mitchell and Mr. David, one the surveyor for the plaintiff' and the other the surveyor for the defendant. But further than that there is no doubt that at the time of the original conveyance to Kelley the southern bank of Kettle creek for its whole distance through these lands was the side of a mountain so precipitous as to make its cultivation impossible. This precipice was broken at one point only where Turtle Point Run flows into Kettle creek from the south. It appears from the testimony and from the connected draft introduced by the defendant as exhibit “ L ” that between this point and ITammersley’s Fork, which flows into Kettle creek from the north at the eastern boundary of Kelley’s conveyance, there was an island extending almost the entire distance between the two streams, which was in the southwest corner of the Bliss conveyance. The southern channel was the boundary of warrant 3640 as shown by the original survey of the warrant. This channel is now closed at the upper end. This was probably done because, as the evidence shows, a mill and dam was built on the northern channel through which the creek now flows exclusively, but the general course and location of the original or southern channel is shown upon defendant’s exhibit “ K ” where it is marked “ water course, ” and also as I have said upon the connected draft, known as exhibit “L.” All the cultivation ever attempted on what is now the south side of Kettle creek within the lines of the triangular southeast corner before referred tó which was a part of the original conveyance from Bliss and was probably done upon this island, but certainly within the lines of the original Bliss conveyance. No cultivation was ever attempted within the lines of the additional forty acres, nor as a matter of fact was any cultivation possible within those lines, the lines included therein being situated upon an almost perpendicular mountain side. The defendant’s offer in this respect is confusing for the reason that it would have enabled him to show cultivation east of Turtle Point Run and south of Kettle creek and yet within the lines of Kelley’s original conveyance and entirely outside of the additional forty acres and, therefore, of no avail in proving possession of the latter tract.- The map introduced by defendant, exhibit “ K, ” was evidently designed for the same purpose that, it does not show the south line of the Bliss conveyance, neither does the map agree with the courses and distances in the conveyance from Bliss to Kelley, nor with the Bastress map, nor with the marks upon the ground.

      The doctrine of consentable lines, so strongly urged by oné of the counsel for defendant, has no application whatever to this case. There is no claim here that an attempt was made to agree upon a disputed boundary between the adjoining landowners. This is an attempt to maintain a parol gift by possession. It matters not that the land so given adjoins the lands previously owned by the grantee. The doctrine would be the same if the parol grant had been to forty acres, situated a mile away, and to make it valid it would have to be followed, either by written conveyance • thereof or by residence or cultivation within its boundaries. There was no offer on the trial to prove residence or cultivation within the lines of the additional forty acres taken in by the Bastress map. There has been no attempt to show such residence or cultivation within those lines since the trial, on the hearing of this motion, and it is clear to the mind of the court that in fact there never was, and from the nature of the ground never could have been, any such residence or cultivation, and that the only acts of dominion ever exercised by Kelley, or any of his successors in title to that forty acres, consisted of an occasional trespass for the purpose of cutting timber.
    The motion for a new trial is, therefore, refused.

      Error assigned was in giving binding instructions for plaintiff.

      0.8. McCormick and T. G. Hippie, fox appellant.
    A boundary line between adjoining owners which can- be clearly traced, may be altered by the acts or agreements of the parties, and a purchaser from one of them, with notice, will be bound by such consentable line : Perkins v. Gay, 3 S. & R. 327 ; Hagey v. Detweiler, 35 Pa. 409 ; Kellum v. Smith, 65 Pa. 86. .
    The cultivation of several acres fixes the denomination of the whole, and charges the person of the cultivator so as to render a sale for taxes illegal: Biddle et al. v. Noble et al., 68 Pa. 279 ; Breisch v. Coxe, 81 Pa. 336 ; McClement’s Appeal, 2 Pa. Superior Ct. 443.
    Kelley took this land in good faith in the place of the land he lost; he believed it was given to him in plape thereof; he cleared the most desirable part of it east of Turtle Point Run; he cut or sold to others, who cut the timber off from the parts of it, as did his widow and heirs after his death. He took firewood, fencewood and building material off the remainder of the land, so that it is difficult to see how he could have acted more consistently with the belief he was the undisputed owner. He had, to say the least, a color of title, and what he did was under such claim of title: Hole v. Rittenhouse, 25 Pa. 491; Lawrence v. Hunter, 9 Watts, 64.
    May 11, 1908:

      W. G. Kress and D. L. Krebs, for appellee.
    Slonaker was not authorized, after the execution of the power of attorney, to make title by gift to Kelley : Shelhamer v. Thomas, 7 S. & R. 106 ; Paul v. Grimm, 165 Pa. 139; Rice v. Lewis, 4 Atl. Repr. 810.
    The fact that a surveyor, who had once been employed by the owner of a tract of land to run one of his lines, was after-wards employed by the board of property to resurvey the whole tract, and in doing so had marked a line between it and the adjoining tract, is not sufficient evidence of the establishment of a consen table line to go to a jury: Kerr v. Wright & Pier, 37 Pa. 196 ; Adamson v. Potts, 4 Pa. 234.
    The adjoining owner marking his lines over the division line does not constitute adverse possession : Altemus v. Trimble, 9 Pa. 232.
    Evidence of the customary use of woodland, as by taking firewood and lumber therefrom, will not avail to destroy a valid title in another, unless accompanied by proof of actual possession, by residence or cultivation of part of the tract to which the woodland belongs within the interference under color of title, or by marked boundaries taken and maintained for twenty-one years : Hole v. Rittenhouse, 37 Pa. 116 ; s. c., 25 Pa. 491; Heller v. Peters, 140 Pa. 648 ; Bear Valley Coal Co. v. Dewart, 95 Pa. 72; Goodman v. Sanger, 85 Pa. 37; McArthur v. Kitchen, 77 Pa. 62; Olewine v. Messmore, 128 Pa. 470 ; Handley v. Barrett, 176 Pa. 246.
   Per Curiam,

The judgment is affirmed on the opinion of the court below refusing a new trial.


source: Caselaw Access Project

license: Public Domain

text:
    Tilburg v. Northern Central Railway Company, Appellant.

      Negligence — Railroads—Passenger—Ejection from train — Walking on track — Contributory negligence — Case for jury.

    In an action against a railroad company to recover damages for death of a passenger alleged to have been wrongfully ejected from a train at night, and subsequently killed on the tracks while walking to his destination, the case is for the jury where the evidence is conflicting as to the character of the locality where he was put off, and as to the existence of other and safer ways by which he might have walked to his destination. In such a case the important question is not so much the actual situation as it was, but what it appeared to the deceased to have been, what,means of information were reasonably open to him, and how far he availed himself of them. On all of these points the case is for the jury.
    Argued March 17, 1908.
    May 11, 1908:
    Appeal, No. 50, Jan. T., 1908, by defendant, from judgment of C. P. Lycoming Co., Dec. T., 1905, No. 247, on verdict for plaintiff in case of Mary Tilburg v. Northern Central Railway Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Hart, P. J.
    Eor the facts see 217 Pa. 618 and the opinion of the Supreme Court.
    ' Verdict and judgment for plaintiff for $4,425. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Seth T. MeCormioTc, for appellant.

      Otto G. Kawpj)) with him Jf. O. Rhone, for appellee.
   Per Curiam,

That the negligence of the appellant in putting the deceased off the train at Haleeka Station, and the contributory negligence of the deceased in attempting to get back to Oogan Yalley Station by walking on the tracks, were questions for the jury, was decided when the case was here before, 217 Pa. 618.

As the former trial ended in a nonsuit there was no evidence on the part of the defendant as to the actual safety of the place, or the deceased’s opportunity of learning it.

These elements were supplied at the last trial, but the evidence did not take them away from the jury. Defendant claims to have shown that though Haleeka is a flag station and there is no station house there yet there was a large club house in full view and only 225 feet distant from the point where Tilburg alighted; that there was also a public road leading in a direct line from Haleeka Station to Cogan Yalley Station, on a level with, in plain view from, and within sixty feet of the platform upon which Tilburg stood after he got off of the train ; that the distance to Cogan Yalley by the public road is less than by the railroad, and that less than 600 feet distant from the point where the plaintiff stood on the platform of the station there was a house standing by the side of the public road in plain view from the station. And furthermore that there were present at Haleeka Station, after Tilburg got off the train, and before he started to walk down the track, several persons from whom he could have inquired his way, and that there was a cinder path on both sides of the track all the way from Haleeka Station to below the point where the body of Tilburg was afterwards found between the tracks, on which he. could have walked in safety without ever setting foot upon the railroad track.

But these facts were not admitted, and on the other side were the facts that Tilburg if he had ever been there before was certainly not familiar with the station, and was put off the train there about dusk on a snowy January evening. The important question in regard to his contributory negligence was not so much the actual situation as what it appeared to him to be, what means of information were reasonably open to him, and how far he availed himself of them. On all these points the case was clearly for the jury.

The court would not have been justified in entering judgment for the defendant non obstante veredicto, under the act of 1905. That act “ was not intended to change the relative functions of court and jury, so as to permit the judge to decide questions of conflicting evidence, but only to allow him to do subsequently, on review of the whole case, what it then appeared it would have been proper to do by binding direction at the trial: Bond v. Penna. B. R. Co., 218 Pa. 34, 36.

Judgment affirmed.


text:
    Gardner, Appellant, v. Philadelphia.

      Negligence — Municipality—Sidewalk—Slippery pavement — Nonsuit.
    In an action against a city to recover damages for personal injuries sustained by a fall on an icy pavement a nonsuit is properly entered where the evidence shows that the plaintiff’s heel was caught and his foot turned in a circular or curved rut, and that the rut had apparently been made by a push cart in soft snow or slush,- later frozen hard, and then covered with an inch or two of fresh snow that had fallen the same morning.
    Argued March 23, 1908.
    Appeal, No. 401, Jan. T., 1906, by plaintiff, from order of C. P. No. 1, Phila. Co., March T., 1905, No. 2,212,'refusing to take off nonsuit in case of Richard' Gilpin Gardner v. City of Philadelphia.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries caused by a fall on an icy pavement. Before Beitler, J.
    The facts are stated in the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      John B. K. Scott, for appellant.

      Harry T. Kingston, with him James Alcorn, assistant city solicitors, and J. Howard Gennell, city solicitor, for appellee.

      May 11, 1908 :
   Per Curiam,

Plaintiff walking down Pine street in the city of Philadelphia fell on the icy pavement. Examination showed a circular or curved rut in which his heel caught and his foot was turned. It was apparently made by a push cart in the soft snow or slush, later frozen hard and then covered with an inch or two of fresh snow that had fallen that morning. It was one of the most dangerous conditions that occur for pedestrians, but a condition incident to city pavements in our variable winter weather, and there was no evidence that the city had actual notice of it, or that it had been there long enough for notice to be implied.

Judgment ¿firmed.'


text:
    Manayunk Trust Company v. Platt.

      Mortgage — rJudgment—Opening judgment — Guardian ad litem — Notice.
    A judgment on a scire facias sur mortgage against the guardian ad litem of a minor who is the real owner, will not be opened merely because neither the minor nor his next of kin had notice of the application for the appointment of the guardian ad litem.
    A motion to open a judgment being an appeal to the equitable powers of the court should be based on some equitable grounds shown. A mere technical irregularity not in any way affecting the merits or justice of the judgment, is not sufficient.
    Argued March 23, 1908.
    Appeal, No. 380, Jau. T., 1907, by Andrew O. Kerr, Guardian of John W. Fitzpatrick, a minor, from order of C. P. No. 4, Phila. Co., June T., 1906, No: 3,469, discharging rule to open judgment in case of Manayunk Trust Company to the use of John W. Platt, Horace H. Platt and Frank M. Platt v. Ammon Platt, Mortgagor, Adolph C. Platt or Adolphus C. Platt, Trustee, Adolph C. Platt, Ella Cornman and Charles' H. White, Guardian ad litem of Florence Cornman, F. Willard Cornman and John W. Fitzpatrick, minors, real owners.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Rule to open judgment.

      May 11, 1908 :
    The only ground alleged for opening the judgment was that neither the minor nor his next of kin was served with notice of the application to appoint the guardian ad litem.
    The court discharged the rule.

      Error assigned was the order of the court discharging the rule.

      Henry A. Hoefler, with him Charles A. Chase, for appellant.
    Melick, Potter <& Peehert, for appellees, were not heard.
   Per Curiam,

The motion to open a judgment being an appeal to the equitable powers of, the court should be based on some equitable ground shown. In this case there was none. The judgment was regular on its face and not assailable at law. The only objection to it now set up is of technical irregularity not in any way affecting its merits or justice. The court was not called upon to intervene.

Judgment affirmed.


text:
    Dobbins’s Estate
    (No. 1).

      Wills — Codicils—Construction—Intestacy as to principal — Chdrities.
    Testator devised his residuary estate to his executors to pay the whole net income to his sister for life, and .upon her death the principal to such charities as she should by will direct, and upon her failure to appoint, to pay the same to eight charities named. By another clause he directed that if the bequest to charitable institutions for any reason should not take effect, or be held to be void, then he gave all moneys intended to be given to charitable purposes to his sister and brother, or to the survivor of them to be divided between them and to be disposed of by them or the survivor of them in any manner which they may deem proper and useful. A codicil revoked the charitable provisions set forth in the will and gave pecuniary legacies to certain specified charities, and further directed that the residue of his estate directed to be held in trust for the benefit of his sister should at her death be paid over to such charities as he should thereafter name in writing to his executors, or by provision in a future codicil, but if he should fail to make such designation then to pay over and distribute the same to such charitable institution or institutions as his sister should by will appoint. A subsequent codicil revoked the provision for the payment of the whole income to testator’s sister, and directed his executors to pay her for life an amount per annum which was much less than the total income. After testator’s death it appeared that he had failed to name in writing to the executors, or in a codicil, any charities as beneficiaries of the residue. Held, that the provision in the will in favor of the brother and sister, if the charitable bequests should fail, was not revoked by the codicils, and that no intestacy arose as to the corpus of the residuary estate.
    Argued March 26, 1908.
    Appeal, No. 63, Jan. T., 1908, by-Mary S. McMurtrie, Susan O. D. Stackhouse, Gertrude D. Hallowell, Molly D. Schaffer, Florence Dobbins Titus, Murrell Dobbins, Jr., Joseph T. Dobbins and Sarah L. Horner, from, decree of O. C. Phila. Go., July T., 1906, No. 135, dismissing exceptions to adjudication in Estate of Edward T. Dobbins, deceased.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Exceptions to adjudication of Lamorelle, J.
    The material portions of the will and codicil of the decs dent were as follows:
    WILL.

      “ Item 21. All the rest, residue and remainder of my property and estate of every nature and kind and wheresoever the same may be or be situated, or to which I shall be entitled at the time of my decease and not already hereinbefore disposed of, I give and devise and bequeath unto my executors and trustees hereinafter named and appointed and to the survivors or survivor of them in trust nevertheless for the following uses and purposes and not otherwise. That is to say to invest such of my estate as shall come into their hands uninvested and keep the same and all the other property coming into their hands under this my Will invested and change the investment as often as the proper and beneficial management of my estate shall in their, judgment require, and pay the income and interest thereof together with the rents of my real estate which I desire shall remain unsold so far as relates to that situate in the City of Philadelphia, over to my said sister Mary A. Dobbins, in quarterly payments or oftener if she request it during the whole term of her natural life. And I request and direct my said executors and trustees to allow and permit my said sister Mary A. Dobbins to possess, occupy, use and enjoy as a place of residence for herself my dwelling house and premises No. 1808 Locust Street, Philadelphia, and also to have full use and possession and enjoyment of my stable and premises No. 1919 Ann Street, Philadelphia, both free of rent and of every other charge during her life, or so long as she shall desire to have and use them or either of them.
    “ Item 27. At and immediately after the death of my said sister Mary A. Dobbins or at any time during her life if she should so request, I do hereby authorize and empower my said executors and trustees to sell and dispose of all or any part of my real estate and to give good and sufficient deed or deeds or other assurances in the law to the purchaser or purchasers thereof, without any liability on the part of the purchaser or purchasers to see to the proper application of the purchase money and I direct them to pay over all the rest, residue and remainder of my said estate to and among such charitable institutions as my said sister Mary A. Dobbins by her last Will and testament shall direct and appoint, and in default of such direction and appointment, then to pay over the said rest, residue and remainder to the following charitable institutions : — To ;
    “ The Burlington County Hospital, Mount Holly, New Jersey.
    “ The Bethesda Home, Located at Chestnut Hill, Philadelphia.
    “ The Lying in Charity Hospital and Nurses Home, located Cor. 11th & Cherry Streets, Philadelphia.
    “The Blind Men’s Home, 3518 Lancaster Avenue, West Philadelphia.
    “ The Episcopal Hospital, Philadelphia.
    “ The Howard Hospital, located on Broad Street, Phila- . delphia.
    “ The Southern Home for Destitute Children, Broad & Morris Streets, Philadelphia.
    “ The House of Best, Germantown, Philadelphia.

      dividing the said rest, residue and remainder equally among the said above named institutions or she shall add to the list any other charities that she may deem worthy and desires to be benefited by my estate.
    “ Item 28. Should my said foregoing bequests to charitable institutions for any reason not take effect or be held to be void, then I give and bequeath all moneys intended by this my said will to be given to charitable purposes to my sister Mary A. Dobbins and my brother Murrell Dobbins or to the survivor of them to be divided equally between them and to be disposed of by them or the survivor of them in any. manner that they may deem proper and useful.
    “ codicil 1.

      “ 1st. I hereby revoke and annul Item 27 of my said will and all the provisions thereof as contained on page eight of the said will.
    “ 16. After the death of my sister, Mary A. Dobbins, I order and direct that all the rest, residue and remainder of my estate, which under the terms of Item 24 of my will shall have been held by them in trust for the benefit of the said Mary A. Dobbins during her lifetime shall be held by my said executors and trustees and the survivor or survivors of them upon the further trust to pay over and distribute the said rest, residue and remainder of my estate to such charitable institution or institutions or to such charitable purpose or purposes as I shall hereafter designate by instructions in writing addressed to my said executors or by provision in a future codicil to my will, but if I shall fail to make such designation, then to pay over and distribute the same to such, charitable institution or institutions as my sister, Mary A. Dobbins, shall by her last will and testament direct and appoint.

      “ codicil 2.
    “ 8. I hereby revoke and annul Item 24 of my said will and in place thereof I give, devise and bequeath all the rest, residue and remainder of my property and estate, of every nature and' kind whatsoever and wheresoever situate, or to which I shall be entitled at the time of my decease, and not already hereinbefore or by my said will or other codicils thereto disposed of, unto my executors and trustees, and to the survivors or survivor of them, in trust, nevertheless, for the following uses and purposes, that is to say :
    “To invest the same and keep the same invested, changing the investments as often as the proper and beneficial management of my estate shall in their judgment require; to collect the income therefrom, and after the payment of all lawful charges and expenses thereof, to pay out of the net income to my sister, Mary A. Dobbins, the sum of $2,000 per month duringthe whole term of her.natural life, and I direct my' executors and trustees to allow and permit my said sister, Mary A. Dobbins, to possess, occupy, use and enjoy as a' place of residence for herself my dwelling house and premises, No. 1808 Locust street, Philadelphia, and also my stable and premises, No. 1919 Manning street, Philadelphia, both free of rent and of every other charge during her life or so long as she shall desire to have and use them or either of them.”
    The auditing judge held that there was an intestacy as to the surplus income in excess of the annuity, and. directed it to be distributed by the trustees amongst the distributees under the intestate law. He held that there was no present intestacy as to the principal of the estate, which' he held to be subject to the testamentary appointment of Mary A. Dobbins under the sixteenth clause of the first codicil.
    The heirs at law filed exceptions to the action of the auditing judge in holding that there was no intestacy as to the principal.
    Mary A. Dobbins and Murrell Dobbins, brother and sister of the decedent, filed exceptions to the action of the auditing judge in holding that there was an intestacy as to the surplus income.
    Penrose, J., filed the following opinion:
    The record does not show who the parties are who would take under the intestate laws if there should be an' intestacy, and, as we are without information on the subject, we do not know the extent of the interest of those who. have excepted to the refusal of the auditing judge to award distribution of any part of the principal of the residuary estate. ¥e think, however, that his action in this respect was clearly right.

      By his will, executed November, 1894, the testator, after numerous pecuniary and specific legacies, contained in twenty-two items, separately numbered, to relatives and to designated charities, gave the residue of his estate “ of every nature and kind and wherever same may be ” to his executors in trust to pay the income, interest and rents to his sister Mary, “ during the whole term of her natural life,” further directing, by Item 27 (the direction to pay the income to the sister being contained in item twenty-four), that at her death the trustees, after sale of real estate, shall “ pay over all the rest, residue and remainder ” of such residuary estate “ to and among such charitable institutions” as she shall, by will, direct and appoint, and in default of such- appointment to ten charitable institutions there named, viz.: The Burlington County Hospital, The Bethesda Home, The Lying in Charity Hospital, The Blind Men’s Home, The Episcopal Hospital, The Howard Hospital, The Southern Home for Destitute Children, and The House of Eest; “ dividing the said .... residue .... equally among said .... institutions, or she shall add to the list any other charities that she may deem worthy.”
    Immediately after this disposition of the residuary, estate, the will, by Item 28, provided as follows : “ Should my said foregoing bequests to charitable institutions, for any reason, not take effect or be held to be void, then I give and bequeath all moneys intended by this my said will to be given to charitable purposes to my sister Mary A. Dobbins and' my brother Murrell Dobbins or to the survivor of them to be divided between them and to be disposed of by them or the survivor of them in any manner that they may deem proper and useful.”,
    Six years later, by a codicil dated July-20, 1900, he revoked and annulled “ Item 27 ” of his will “ and all the provisions thereof,” and after giving pecuniary legacies to twelve charitable institutions, including some of those mentioned in Item 27 as residuary legatees, and providing.that if his nephew, T. Monroe Dobbins, or his niece, Laura E. Dobbins, should die without issue the-$30,000 and $25,000 given to. them, respectively,' by Items 15 and 17 of his will, should be paid -to-their “father and mother .... or the survivor,” he directed that at the death of his sister Mary “ all-the rest, residue, and remainder,” held “under the terms of Item 24,” in-trust for-her benefit, for life, shall be held in trust “ to pay over and distribute .... to such charitable institution or institutions or to such charitable purpose or purposes as I shall hereafter designate by instrument in writing addressed to my said executors or by provision in a future codicil to my will; but if I should fail to make such designation then to pay over and distribute the same to such charitable institution or institutions as my said sister .... shall by her last will .... direct and appoint.”
    Other codicils (April 5, 1902, July 27, 1904, July, 1905, and July 7, 1905), revoked, by referring to names of legatees and number of items, Items 17, 3, 9, 11, 14, 24, 13, 5 and 18, and gave additional legacies, charitable and otherwise, as there set forth; the codicil of July 27, 1904, Item 8, being as follows : “ I hereby revoke and annul Item 24 of my said will and in place thereof I give .... all the rest, residue, and remainder of my property .... of every kind .... and not already .... by my said will or codicils disposed of unto my executors and trustees .... in trust .... to invest the same .... to collect the income therefrom, and to pay out of the net income to my sister Mary A. Dobbins . . . . $2000 per month during the whole term of her natural life,” —she to have the right to occupy free of rent and of every other charge his residence and stable and the executors and trustees to have power to sell all his other real estate “ at such time and upon such terms as to them shall seem best.”
    Under the will, as originally drawn, an intestacy was impossible. The charitable institutions designated as residuary legatees “ in default of appointment ” by the sister,' took vested interests, subject to be divested by the exercise of the power : Doe v. Martin, 4 Term Rep. 39 ; 4 Kent, 204, 324; Brooke’s Estate, 214 Pa. 46, 47 ; and if the testator should die within a calendar month after its execution, the sister and brother would take under Item 28, with no restriction on their right of disposal, but with the evident belief on the part of the testator that they would carry out his wishes.
    A codicil, as it is well settled, is to be interpreted in the light of the will, which it changes only to the extent that the original provisions are thus altered ; everything else remains just as it was, and this is the case even if the codicil professes to “ revoke and annul ” that which it actually only modifies : Watt’s Estate, 3 Pa. Dist. Rep. 343; Sloan’s Appeal, 168 Pa. 422; Whelen’s Estate, 175 Pa. 23 ; Cooper v. Day, 3 Merivale, 154; Leacroft v. Maynard, 3 Bro. C. O. 233, etc. The codicil becomes part of the will, with like effect as if it had been incorporated in it.
    A principle of no less importance is that a codicil republishes the will and all previous codicils — regarded as forming part of it; and all that at the time of such republication has been retained is, necessarily, to be treated as taking effect as of the date of such republication. From this it results that Item 28, giving the residuary estate to the brother and sister in the event of failure of the charitable gifts, which was never revoked, is to be read in the light of the codicil which reduced the gift of income to the cestui que trust for life and of the codicils which followed. The retention of this item, especially in view of the revocation of so many other items, is very significant, and there is no right to disregard it or to say that its operation is to be confined to the terms of the will as it originally stood. See Sherer v. Bishop, 4 Bro. C. C. 55.
    Obviously the provision became of more importance by reason of the first codicil than it had been previously, for not only was there danger of failure of the pecuniary legacies to charities, newly created by the codicil, by the death of the testator within a calendar month after its execution, but the vested residuary gifts to charities being revoked, there was danger that the intention with regard to charitable disposition of the residue might fail by reason of the omission of the testator to designate the special object “ by instructions in writing .... or by provision in a future codicil,” and the further danger that the sister might die without having exercised her power of selection. Hence Item 28 was retained, the provisions of the codicil, substituted in place of the items revoked or modified being incorporated in the will in place of Item 27, etc., which preceded it, and thus falling within its terms.
    This was the case, also, after the modification by the later codicil of the estate of the cestui que trust for life by the reduction of her share of income to $24,000 per annum, but with no suggestion that Item 28 of the will had been revoked or in any way abrogated.

      There was no revocation of the power of selection given to the sister. It was unaffected by the' abridgment of her interest in the income of the residuary estate, and would have continued as a power in gross if her right to income had been taken away altogether. Whether she will exercise her power or not cannot be known until her death, and in the meantime, as the auditing judge has held, the principal of the estate cannot be distributed. The exceptions to this ruling are dismissed.
    The codicil having reduced the amount to be paid to the sister to $21,000 per annum, there is, and while she lives, will be, a large, surplus of income. If the charities ultimately intended to take the principal of the residuary estate were designated by the will, this surplus would accumulate for their benefit, the' act of assembly restraining accumulations to the case of an existing minority and for the benefit of the minor, expressly declaring that its provisions shall not extend to charities. But this exception from the operation of the statute manifestly cannot apply where there is no charitable object having a vested, or, at least, a contingent interest at the time the accumulations occur, and especially where, as in the present case, such object may never come into existence at all. Under these circumstances there would be an intestacy as to the surplus income, as the auditing judge has held there is, unless it'is prevented by the provisions of Item 28 of the will, republished by this codicil and those which come after it.
    The intention of the testator as manifested, both by the will and the codicils, was that his residuary estate should go, either by his own designation or by the selection of his sister, to charitable institutions; and he knew, for such is the law which all are presumed to know, that accumulation, either by express provision or by indirection, was not forbidden in case of charitable gifts. He did not know that the court would hold that the statute would apply as against an unknown and unascertainable charity. This, however, did not affect his intention, and thus is presented the very case contemplated by Item 28 of the republished will: “ Should my said foregoing bequests to charitable institutions for any reason not take effect or be held to be void, then I give and bequeath all moneys intended by this my said will to be given to charitable purposes to my sister, Mary A. Dobbins, and my brother, Murrell Dobbins, or to the survivor of them, to be divided equally between them, and to be disposed of by them, or the survivor of them, in any manner that they may deem proper and right.” “ Moneys intended ” for charities are, if the charitable intention should be held ineffective, covered by this item, and the “ intention ” may be manifested by implication no less than by express provision.
    It is true that “ the heir will not be disinherited except by express words or necessary implication,” but where the will shows unequivocally, as it does in this case, that he has been excluded, the principle has little application where the claim by the heir is based upon a codicil: Norris’s Estate, 217 Pa. 560 ; 15 Pa. Dist. Eep. 449. The right to dispose of his property by will is conferred upon the owner by a statute no less explicit in its terms than is that which provides for its disposition where there is no will, and the very purpose of a will is to prevent the operation of the intestate laws. An intestacy will never be permitted where by any fair interpretation of the will, or any reasonable understanding of its language, it can be avoided. An intestacy can seldom, if ever, take place where there is a gift of the residue, for such gift will, in general, take in whatever is not well disposed of. Here there is a double disposition of the residue; first, to charities to be defined in the future, and, second, if they should fail, to the brother and sister.
    This view is concurred in by President Judge Ashman, but as the other two judges before whom the case was argued agree with the auditing judge, the exceptions on the part of the brother and sister must also be dismissed, though by a divided court.
    The exceptions are dismissed and the adjudication confirmed absolutely.
    Anderson and Lamorelle, JJ., filed opinions concurring in the adjudication as to the income.

      Errors assigned were in dismissing exceptions to adjudication.

      N. Dubois Miller and Harman 7erTt.es, with them John Faber Miller, Carroll R. Williams and Nicholas H. Larzelere, for appellants.
    Item 28 of the original will has no application whatever as the will and codicils now stand: Arthur v. Gumming, 91 U, S. 362. The 16th clause of the first codicil fell with the revocation of Item 28 of the will. The case presented here is a clear case of partial intestacy under the decisions of this court: Hitchcock v. Hitchcock, 35 Pa. 393; Bruckman’s Est., 195 Pa. 363; Lipman’s App., 30 Pa. 180; DeSilver’s Est., 142 Pa. 74; Gray’s Est., 147 Pa. 67; Schmidth’s Est., 183 Pa. 641; Nebinger’s Est., 185 Pa. 399 ; Filbert’s Est., 195 Pa. 295 ; Corr’s Est., 202 Pa. 391; Espy’s Est., 207 Pa. 459 ; Shaner v. Wilson, 207 Pa. 550.
    May 11, 1908 :

      John G-. Johnson, for appellee.
   Per Curiam,

This appeal is dismissed for reasons appearing in the opinion of Penrose, J., in the court below.


text:
    Dobbins’s Estate
    (No. 2).

      Wills — Codicils—Construction—Intestacy as to principal — Charities.
    Testator devised his residuary estate to his executors to pay the whole <iet income to his sister for life, and upon her death the principal to such charities as she should by will direct, and upon her failure to appoint, to pay the same to eight charities named. By another clause he directed that if the bequest to charitable institutions for any reason should not take effect, or be held to be void, then he gave all moneys intended to-be given to charitable purposes to his sister and brother, or to the survivor of them to be divided between them and to be disposed of by them or the survivor of them in any manner which they may deem proper and useful. A codicil revoked the charitable provisions set forth in the will and gave pecuniary legacies to certain specified charities, and further directed that the residue of his estate directed to be held in trust for the benefit of- his sister should at her death be paid over to such charities as he should thereafter name in writing to his executors, or by provision in a future codicil, but if he should fail to. make such designation then to pay over and distribute the same to such charitable institution or institutions as his sister should by will appoint. A subsequent codicil revoked the provision for the payment of the whole income to testator’s sister, and directed his executors to pay her for life an amount per annum which, was much less than the total income. After the testator’s death it appeared that he had failed to name in writing to the executors, or in a codicil, any charities as beneficiaries of the residue. The residuary income was much larger than that directed to be paid to testator’s sister. Held, that an intestacy did not arise as to the surplus income because it was the intention that the entire residuary estate should go to charities, for which purpose accumulation was not forbidden, and it was provided that upon failure of 'the charitable bequests, all money intended to be given to the charities should go to testator’s brother and sister.
    Argued March 26, 1908.
    Appeals, Nos. 33, 34 and 35, Jan. T., 1908, by Mary A. Dobbins, by Mary A. Dobbins and Murrell Dobbins and by the Pennsylvania Company for Insurance on Lives and Granting Annuities, Mary A. Dobbins, Murrell Dobbins and John Stokes Adams, Executors and Trustee under the will of Edward T. Dobbins, deceased, from decree of O. C. Phila. Co., July T., 1906, No. 135, dismissing exceptions to adjudication in Estate of Edward T. Dobbins, deceased.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Be versed.
    Exceptions to adjudication.
    The facts are stated in the report of Dobbins’s Estate, No. 1, ante, p. 249.

      Errors assigned were in dismissing the exceptions of the various appellants to the adjudications.

      John G. Johnson, for appellants.
    The will and codicils, properly interpreted, disclose an intention that the charitable institutions shall take the whole residuary estate, including income as well as principal. If the accumulation of income violates the Act of 1853, P. L. 503, so that the same cannot be retained for the charitable institutions, the precise contingency results against which Item 28 provides. The intent to dispose of the whole residuary estate is too evident to permit any application of the canon which favors non-disinheritance of the heir and next of kin, and, in the present case, no such principle would apply in any event. ¥e submit with great confidence that the act of 1853 does not in any way make the accumulation invalid: Biddle’s App., 99 Pa. 525; Curran v. Philadelphia Trust Co., 15 Phila. 84; Lennig’s Est., 154 Pa. 209.
    May 11, 1908:

      N. Dubois Miller and Harman YerTces, with them John Faber Miller, Carroll R. Williams and Nicholas H. Larzelere, for appellees.
    If the power of appointment given to Miss Dobbins does cover the surplus income and is to be construed as a direction to accumulate and merge the surplus income with the principal in the distribution to be made under the will of Miss Dobbins, then such direction is void under the act of 1858: McKee’s App., 96 Pa. 277; Eberly’s App., 110 Pa. 95; DeRenne’s Est., 12 W. N. C. 94; Chamberlayne v. Brockett, L. R. 8 Chancery App. Cases, 206 ; McBride’s Est., 152 Pa. 192; Grim’s App., 109 Pa. 391; Howell’s Est., 180 Pa. 515 ; Martin’s Est., 185 Pa. 51; Edwards’s Est., 190 Pa. 177.
    The will and codicils properly interpreted do not disclose an intention that charitable institutions are to take the entire residuary estate, including the income as well as the principal. The accumulations of income being void under the act of 1853, Item 28 affords no assistance in disclosing what shall be done with them: Arthur v. Cumming, 91 U. S. 362.
    Item 28 is not operative at all.
   Per Curiam,

The decree is reversed and the exceptions of the appellants directed to be sustained in accordance with the opinion of Judge Penrose.


text:
    McClellan’s Estate.

      Will — Power of appointment — Valid exercise of power — Intestacy.
    Testatrix gave all of her estate to her husband for the term of his life with power to dispose of the same during his life and with power at his death to appoint and vest any or all that remained undisposed of to such person as he might see fit, provided that nothing should be disposed of or given during his life or by his will to any member of his family. In case the husband died intestate the estate was given to decedent’s brother. The husband died leaving a will by which he appointed the estate coming to him from his wife to a person designated for life, and after the death of such person to the latter’s daughter for life with power to appoint the principal by will. Held, that the husband of the testator validly exercised the power given to him, and that there was no intestacy of that part of the estate derived from his wife.
    In such a case although the will of the husband gave the donee of the power a life estate with power to appoint to another for life, and with authority in the last donee to will the principal as she should choose, and therefore with power to create a life estate in one who is not in being at the death of the testatrix, yet the law 'will not assume that the daughter would exercise her power of appointment in any other way than that which would be valid.
    The law will remedy, if it can, the defective execution of a power, and will not strike down a trust which is in part good, and in part invalid.

      Estates — “ Vests ” — Definition.
    To vest is to give a legal or equitable seisin. An estate vests in a person who is given a present and immediate interest, as distinguished from an interest whose existence depends upon a contingency.

      Will — Power of appointment — Limitation upon power.

    A proviso limiting a power of appointment is by operation of law written into any will, or power of appointment which the donee of the power may execute, and carries with it the penalty imposed by the will of the donor.
    Argued March 26, 1908.
    Appeals, Nos. 38 and 49, Jan. T., 1908, by Helen Bloodgood and Robert N. Hawley, from decree of O. C. Phila. Co., July T., 1905, No. 301, dismissing exceptions to adjudication in Estate of Clara D. H. McClellan, deceased.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Exceptions to adjudication.
    The auditing judge, Dallett, J., found the facts to be as follows:
    The testatrix died June 22, 1904, leaving a will, by which she gave her entire estate to her husband, John M. McClellan, for life, with power to dispose of it during his life and with power to appoint and vest any or all remaining to such persons as he might see fit, provided that nothing should be disposed of or given during his life or by his will to any member of his family.

      John M. McClellan died July 1, 1906, leaving a will, whereby he appointed the estate coining to him from his wife to J. Eundell Smith, in trust, to use the income during his life, excepting the payment of a sum annually for the care of his lot in Laurel Hill cemetery, and the payment of $1,500 to Dr. E. N. Hawley. And after the death of J. Eundell Smith appointed the said estate to his daughter, Ellen Hollingshead Smith, in trust, with power to appoint the principal, only provided that she should see to the proper care of Mrs. McClellan’s grave.
    Mr. Turner, on behalf of Robert N. Hawley, to whom the testatrix gave her estate for life in the event that her husband should not dispose of it as she had provided, or in the event of his dying intestate, asked that the balance now before the court should be awarded to him for life.
    Mr. Baxter, on behalf of Mrs. Frances Bloodgood, Jr., a sister of the testatrix, asked the award of one-half of the estate to her on the ground that the testatrix had died intestate, because the execution of the power of appointment by her husband was invalid, and as he had not technically died intestate the provisions of her will in case he should die intestate could not take effect.
    The auditing judge awarded the sum of $1,500 to E. N. Hawley and the balance to the trustee under the will of John M. McClellan.
    Exceptions by Helen Bloodgood and E. N. Hawley were dismissed by the court, Ashman, B. J., filing the following opinion:
    The main inquiry concerns the validity of the testamentary trust created by the husband and that created by his appointee. By the will of the testatrix she devised and bequeathed her estate to her husband in these terms : “ To my husband John Morton McClellan for the term of his life, with power to dispose of the same during his life, and with power of his last will and testament at his death to appoint and vest any or all that remains undisposed of of my estate, to and in such persons as he sees fit ... . provided that nothing shall be given during his life or bequeathed by his last will to any member or members of his family.” In case of a breach of this proviso she directed that her estate should go to her brother, Dr. B. N. Hawley, for life, with a similar power of disposition during life or by will. The only limitation which is here suggested or can be implied is found, if found at all, in the use of the word “ vest.” An estate vests in a person who is given a present and immediate interest, as distinguished from an interest whose existence depends upon a contingency. As defined by Chancellor Kent, to vest is to give a legal or equitable seisin : 4 Kent’s Com. (13th ed.), 202. An estate in remainder is vested in the remainder-man, although its enjoyment is deferred until the falling in of the life estate. So an estate is vested in a trustee to serve the interests of the cestuis que trust. Whatever may have been the original meaning of the word as denoting the investiture of the fee, the word is now applied to estates in personalty usual as estates in land. In this instance, the husband of the testatrix could have willed the estate in parcels by appointing it to A. for life with remainder to B. in fee, and no one'could doubt that he would thereby have vested an estate in each of those parties; and with the same effect he co.uld have vested an estate in a trustee to serve their interests.
    Assuming, as we think it did, that the power of appointment in John M. McClellan covered equitable as well as legal estates, was his appointment to J. Bundle Smith in trust, within the limits of the authority conferred by the will of the testatrix, the original donor ? It omitted the proviso in that will, prohibiting any gift to a member of the husband’s family. But that proviso was by operation of law written into any will or power of appointment which the husband or his appointee might execute, and would carry with it the penalty imposed by the will of the testatrix. Without doubt the trust created by the husband tended to a perpetuity. His will gave the donee of the power a life estate with power to appoint to another for life, and with authority in the last donee to will the principal as she should choose, and therefore with power to create a life estate in one who was not in being at the death of the testatrix. The law, however, will remedy, if it can, the defective execution of a power, and will not strike down a trust which is in part good and in part invalid, so long as the part which is valid can be upheld: Horwitz v. Norris, 49 Pa. 213.- Here the trust for the daughter of «J. Bundle Smith for life is valid, and we cannot assume that her exercise of the power will be other than valid.
    The testatrix owned a small undivided interest in a large tract of land. After her death John M. McClellan joined with the remaining owners in an agreement to sell, under which the land was sold, but he died before the payment of the purchase money. He evidently executed the contract in his own name and not as executor or trustee, because after his death, some doubt having arisen as to his power, the court authorized the executor of his will to execute the deed. If the husband by his joinder intended more than simply to facilitate the sale in which others, and not he, were largely interested, and if his purpose was rather to assert his individual ownership, can he be said by this act to have disposed of “ the share ” within the meaning of testatrix’s will ? Especially can this be said when the purchase money never came into his hands, and when the testatrix had used the words “ disposed of,” in connection with the words “ given or spent,” meaning thereby some act by which the husband should unmistakably distinguish between his wife’s estate and his own. So with the personal effects, consisting of books, paintings, etc. The husband continued after his wife’s death to reside in the house which she had occupied, and he apparently allowed these articles to remain undistributed where she had left them. They passed as part of his wife’s estate under the clause in his will by which he gave “ all my personal property and effects coming to me from my deceased wife,” to a trustee.
    The discussion by counsel covered a wide range, into which it Avould be more interesting than useful to enter. The exceptions are dismissed and the adjudication is confirmed.

      Error assigned was in dismissing exceptions to adjudication.

      Alex. Simpson, Jr.', with him Wm. Y. O. Anderson and Wm. Jay Turner, for appellant, B. N. Hawley.
    The power under Mrs. McClellan’s Avill was a special one: Thompson v. Gar-wood, 3 Wharton, 287; Lawrence’s Est., 186 Pa. 354.
    Special power must be strictly pursued or else the appointment thereunder will be void: Porter v. Turner, 3 S. & R. 108; Salter v. Howell, 15 S. & R. 188; Wickersham v. Savage, 58 Pa. 365 ; Rogers’s Est., 218 Pa. 431; Ingersoll’s Est., 167 Pa. 536.
    May 11, 1908 :
    The appointment fails to pursue the power given in four respects : (a) In creating trusts; (b) in giving only life estates ; (c) in charging the life estates given with the payment of certain sums of money ; and (d) in attempting to give to someone else the appointment of the remainder : Smith’s Estate, 4 W. N. C. 265 ; Blackford’s Est., 4 W. N. C. 17 ; Myers v. Safe Deposit, etc., Co., 73 Md. 413 (21 Atl. Repr. 58); In re Porter’s Settlement, L. R. 45 Ch. Div. 179 ; Pepper’s Est., 120 Pa. 235.

      L. W. Baxter, for appellant, Helen Bloodgood.

      John G. Johnson, with him John Marshall Gest, for appellee.
    The power given to John M. McClellan by his wife’s will was, for the purposes of this case, a general power : Mifflin’s App., 121 Pa. 205 ; Lawrence’s Est., 136 Pa. 354.
   Per Curiam,

The decree is affirmed on the opinion of the court below.


author: Mr. Justice Mestrezat,

text:
    Holbert v. Philadelphia, Appellant.

      Negligence — Municipalities—Sidewalk—Accumulations of ice and snow —Contributory negligence — Evidence—Case for jury.

    A municipality is not liable for injuries resulting from the general slipperiness of its streets or its sidewalks occasioned by a recent precipitation and freezing of rain or snow. Persons who undertake to pass over the sidewalks of a street made unsafe or dangerous by the freezing of recent falls of rain or snow know their condition and assume the risk, and if they fall by reason of the smoothness of the ice, the law imposes no liability upon the city.
    While a municipality is not responsible for the general slippery condition of its sidewalks caused by the recent falling or freezing of rain or snow, yet the rule does not extend so far as to protect the city from liability for injuries caused to a person by slipping on ice in-a street or sidewalk where it has accumulated by reason of a defect in a street or walk or by reason of the neglect to construct and maintain suitable drains to carry off the water.
    It is the duty of a municipality to keep its streets, including its sidewalks, in a reasonably safe condition so that pedestrians using the sidewalks and exercising care may do so with safety. A sidewalk may be made defective or dangerous by the accumulation of ice or snow as well as in other ways and by other means. The municipality, however, is not responsible unless the defective condition of the walk is attributable to its negligence.
    The liability for injuries resulting from the accumulation of ice on a pavement is not confined to cases where the accumulation has resulted in hills or ridges.
    The accumulation of ridges and hills in ice may cause a pavement to be dangerous and convict the city of negligence, but the city is equally responsible if the sidewalk is made dangerous to public travel by reason of any accumulation of ice and snow caused by the negligence of the city. In other words, if an injury results to a pedestrian by reason of a defective sidewalk, the municipality is liable if the defect, whatever it may be, was occasioned by the municipality’s negligence.
    When the testimony shows a defect of such character that the street can be used with safety by the exercise of reasonable care notwithstanding its defective condition, it is not for the court, but for the jury, to determine whether the injured party performed the duty required of him under the circumstances.
    It is not the law that a resident in a city must remain continuously on his property, when the city grossly neglects the repair of its streets, under pain that if he ventures on the streets or walks and suffers injury resulting from the city’s default, he can recover nothing. Nor is the resident bound under like pain to abstain from going to church in the evening, or other places when he may be moved to go by a sense of duty or love of pleasure. On his part it is enough if he takes the ordinary care which ought to be exercised by a prudent man, under the circumstances.
    In an action by a woman against a city to recover damages for personal injuries which occurred by falling on a slippery sidewalk, it appeared that the place of the accident was in a tunnel by which a frequented street was carried under a railroad. Water was carried down the slope of the street into the tunnel, and water also dropped from the railroad above. The sun did not penetrate the tunnel, and during the winter the city permitted the ice to accumulate on. the sidewalk to the extent of from one to two inches in thickness, except in a few small places, and to remain in that condition continuously for long periods. Plaintiff knew of the condition of the walk, and passed over it before, but had not fallen. Other persons had fallen on the ice there, but many others had'passed over it with safety. Held, that the question of the city’s negligence and the plaintiff’s contributory negligence was for the jury, and a verdict and judgment for plaintiff should be sustained.
    Argued March 26, 1908.
    Appeal, No. 12, Jan. T., 1908, by defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1904, No. 1,103, on verdict for plaintiff in case of Agnes T. Holbert v. City of Philadelphia.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Barratt, J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict and judgment for plaintiff for $2,406. Defendant appealed.

      Error assigned was refusal to give binding instructions for defendant.

      Joseph W. Catharine, with him Charles W. Boger, assistant city solicitors and J. Howard Qendell, city solicitor, for appellant.

    A coating of ice from one inch to one and one-half inches thick caused exclusively by the action of the elements, on a pavement structurally sound, does not constitute an actionable defect in the highway, where the only irregularity in its surface is that caused by the footsteps of persons walking across it, however long it may have existed : Mauch Chunk v. Kline, 100 Pa. 119.
    A mere accumulation of snow and ice that does not form an obstruction to walkers, provided the sidewalk is in other respects properly constructed, and in good repair, will not render a municipality liable in damages : Dehnhardt v. Phila., 15 W. N. C. 214; Mauch Chunk v. Kline, 100 Pa. 119; Garland v. Wilkes-Barre, 212 Pa. 151; Blaine v. Phila., 33 Pa. Superior Ct. 177; Macomb v. Smithers, 6 Ill. App. 470; Aurora v. Parks, 21 Ill. App. 459; Ahern v. Melvin, 21 Pa. Superior Ct. 462; Rotsell v. Warren Boro., 10 Pa. Superior Ct. 283.
    Evidence of the conditions prevailing on the day of the accident and at other times some days or weeks prior thereto, is not sufficient to charge the city with notice of the existence of an accumulation of ice, m the absence of proof that the accumulation had continuously existed during the interim, or that the temperature prevailing during said period was such as to warrant the inference that said condition had continuously existed: Garland v. Wilkes-Barre, 212 Pa. 151; Burns v. Bradford, 137 Pa. 361; Hanson v. Warren Boro., 22 W. N. C. 133.
    May 11, 1908:
    Plaintiff was guilty of contributory negligence: Sickels v. Philadelphia, 209 Pa. 113 ; Dougherty v. Philadelphia, 210 Pa. 591; Robb v. Connellsville, 137 Pa. 42; Fleming v. Lock Haven, 15 W. N. C. 216; Dehnhardt v. City of Philadelphia, 15 W. N. C. 214; Erie v. Magill, 101 Pa. 616; Dwyer v. Port Allegheny, 216 Pa. 22; Evans v. Philadelphia, 205 Pa. 193; Steck v. Allegheny, 213 Pa. 573.

      Lewis Lawrence Smith, for appellee.
    The case was for the jury: Moore v. Phila., 33 Pa. Superior Ct. 194; Steck v. Allegheny, 213 Pa. 573 ; Bucher v. Sunbury Borough, 216 Pa. 89; Campbell v. York, 172 Pa. 205 ; McLaughlin v. Corry, 77 Pa. 109; Fritsch v. Allegheny, 91 Pa. 226; Kibele v. Philadelphia, 105 Pa. 41; Wyman v. Phila., 175 Pa. 117; Koch v. Williamsport, 195 Pa. 488 ; McCabe v. Phila., 217 Pa. 140.
    Plaintiff was not guilty of contributory negligence : Mellor v. Bridgeport, 191 Pa. 562; Brown v. White, 206 Pa. 106; Steck v. Allegheny, 213 Pa. 573 ; Evans v. Philadelphia, 205 Pa. 193; Manrose v. Oil City, 178 Pa. 276; Bucher v. Sunbury Borough, 216 Pa. 89 ; Chilton v. Carbondale, 160 Pa. 463; Hill v. Tionesta Twp., 146 Pa. 11; Sickels v. Philadelphia, 209 Pa. 113; Erie v. Magill, 101 Pa. 616.
   Opinion by

Mr. Justice Mestrezat,

About two o’clock on Sunday afternoon, January 25, 1903, Agnes Y. Holbert, the plaintiff, and her sister, Mrs. Stevens, left the former’s home on East Walnut lane, Germantown, within the limits of the city of Philadelphia, to go to Indiana avenue. Their direct route was south along Magnolia avenue to Chelton avenue where they were to board astreet car to reach their destination. Magnolia avenue is fifty feet wide, and its general course is north and south. Both the cartway and the sidewalks are paved with brick. The Germantown branch of the Philadelphia and Reading Railroad crosses it at a right angle. Only the eastern footway or sidewalk is continued under the bridge and forms with the bridge and its abutments a tunnel about thirty feet long, ten feet wide and seven feet high on the north end and ten feet high on the south end. From a point some distance north of the tunnel or bridge, Magnolia avenue descends rapidly to the south side of the bridge, the grade in the tunnel being three feet in a distance of thirty feet. The sidewalk under the bridge is paved with brick, but without curb. While there were intakes in the avenue on the north side of the bridge through which water from the street could pass, yet the water which fell on the east sidewalk and water dropping from the bridge naturally ran through the tunnel to the south side of the bridge. The bridge prevented the sun from falling upon the sidewalk beneath it.

When the plaintiff arrived at the north side of the bridge she discovered some ice at the mouth of, and also in, the tunnel. She proceeded along the sidewalk and when she was about halfway through the tunnel, she slipped on the ice, fell and broke her left arm in two places. Her description of the attempt to pass under the bridge and of the accident is as follows: “I went on and I came, by picking my way carefully, and I stopped and looked where I was going, and I saw a bare spot at my right. I thought, here is a place of safety, I will get on that place; so I could see my way on through the place in safety at that place. Just as I was stepping from the ice that I was standing on, on to this place of safety, my feet went out from under me and I fell, and I broke my left arm in two' places — at the wrist and at the elbow.” The plaintiff claimed, and her testimony tended to show, that the walk under the bridge except a few small places was covered with ice from one to two inches thick, and that part of the ice was very rough. The bridge was built in 1895, and there was ample evidence in the case to warrant the jury in finding that during the winter seasons since its construction ice invariably accumulated on the sidewalk beneath it. It was in evidence that tüe winter of 1902-3 was “a very hard winter — a hard, miserable winter .... it [sidewalk] was icy all that month [January, 1903].”

This action was brought by the plaintiff to recover damages for the injuries she sustained in falling on the sidewalk under the bridge. It is averred, in the statement of claim That by reason of the overhead bridge of the railroad across the said Magnolia avenue ice and snow accumulate under said bridge unless the pavement is kept clean; that it was the duty of said defendant to keep said sidewalk clean and free from ice. . . . But notwithstanding its duty in the premises the said defendant did not keep the said sidewalk in good order and repair and free from such obstructions but allowed the said ice and snow to accumulate there and remain there for a long space of time, and by reason of its said neglect the plaintiff was injured.” The defendant offered no evidence, and the case was submitted to the jury upon the plaintiff’s testimony. The verdict ivas for the plaintiff, and from the judgment entered thereon this appeal was taken by the city.

A municipality is not liable for injuries resulting from the general slipperiness of its streets or its sidewalks occasioned by a recent precipitation and freezing of rain or snow. During the night rain or snow may fall and freeze so that streets and sidewalks are slippery and in a dangerous condition, but it manifestly would be unreasonable to ho]d the city liable for injury to a pedestrian the following morning caused by his falling on the sidewalk. Therefore, persons who undertake to pass over the sidewalks of a city, made unsafe or dangerous by the freezing of recent falls of rain or snow, knowT their condition and assume the risk, and if they fall by reason of the smoothness of the ice, the law imposes no liability upon the city.

While, however, the city is not responsible for the general slippery condition of its sidewalks caused by the recent falling or freezing of rain or snow, yet the rule does not extend so far as to protect the city from liability for injuries caused to a person by slipping on ice in a street or sidewalk where it has accumulated by reason of a defect in the street or walk or by reason of the neglect to construct and maintain suitable drains to carry off the water : Decker v. Scranton City, 151 Pa. 241; Mancross v. Oil City, 178 Pa. 276. It is the duty of a municipality to keep its streets, including its sidewalks, in a reasonably safe condition so that pedestrians using the sidewalks and exercising care may do so with safety. A sidewalk may be made defective or dangerous by the accumulation of ice or snow as well as in other ways and by other means. The municipality, however, is not responsible unless the defective condition of the walk is attributable to its negligence. That is the general rule, and one which applies as well where the sidewalk is defective by reason of the slippery condition of the ice thereon as well as by reason of excavations or other obstructions in the walk. The liability for injuries resulting from the accumulation of ice on a pavement is not confined to cases where the accumulation has resulted in hills or ridges. That is not the only test of liability in such cases, as this court distinctly ruled in Mancross v. Oil City, 178 Pa. 276. There the court sustained the ruling of the trial judge in denying the point submitted by the defendant city that it was “ not liable for an injury caused by reason of the slippery condition of the ice and snow upon its walks, unless such injury is caused by the accumulation of ice and snow into hills and ridges so as to render passage dangerous.” The trial judge refused the point, and in doing so said : “ A city may be liable for an accident caused by the slippery condition of its streets caused by the negligence of its officials, even where the ice and snow do not form into hills and ridges.” The accumulation of ridges and hills in ice ma}’’ cause a pavement to be dangerous and convict the city of negligence, but the city is equally responsible if the sidewalk is made dangerous to public travel by reason of any accumulation of ice and snow caused by the negligence of the city. In other words, if an injury results to a pedestrian by reason of a defective sidewalk, the municipality is liable if the defect, whatever it may be, was occasioned by the municipality’s negligence. These principles are settled by numerous authorities in many jurisdictions.

Recurring now to the case in hand, we think the evidence was sufficient to warrant the jury in finding that the plaintiff’s injuries were caused by the negligence of the city. They were not caused by the general slipperiness or smoothness of the sidewalk resulting from the precipitation and freezing of recent falls of snow or rain. If they were, of course she could have no claim against the city. They were caused by the condition of the sidewalk beneath the bridge, made unsafe and dangerous to travel by the accumulation of ice, which could, and should, have been prevented by the city. The conditions of the place were peculiar. The sidewalk was not the ordinary and usual open and exposed pavement. On the contrary, it was correctly described as a tunnel. Owing to the grade of the street water falling on the east sidewalk flowed into the tunnel. The water that accumulated on the bridge also fell in and passed through it. The direct rays of the sun never penetrated it. These conditions necessarily caused ice to accumulate beneath the bridge in the winter, and naturally it was liable to remain during the winter months. The water from the walk and that dripping from the bridge formed into ice on the sidewalk in the tunnel. That ice was not reached by the sun and was unaffected by it. The sun melted the ice on the walk above the bridge, but the water would flow to the bridge only to be frozen as it passed upon and over the ice under the bridge. The inlets at either side of the fifty foot avenue gave no sufficient relief to this condition of affairs. The city made no adequate provision for preventing the water falling on the walk, and that dripping from the bridge from flowing into and through the tunnel, or for the removal of the ice which, in winter, was produced by this water. , The consequence was, as disclosed by the evidence, that since the construction of the bridge the sidewalk beneath it has been, by reason of ice, unsafe each winter for persons who had occasion to use the street. This danger resulted, therefore, from causes under the control of the city and not from natural causes, such as the recent precipitation and freezing of rain or snow upon ordinary sidewalks. The duty of the city to make this sidewalk reasonably safe for public travel is as imperative as to keep the streets and other sidewalks of the city in a safe condition. As long as this tunnel is kept open and maintained as a public highway by the city, the duty to keep it reasonably safe is imperative,' and cannot be evaded or neglected with impunity.

From what has been said it will be observed'that it was not a question -whether the plaintiff’s injuries resulted from a ridge or hill of ice on the pavement beneath the bridge, but whether the icy condition of the pavement made it dangerous and unsafe for pedestrians using the sidewalk, and that such condition was attributable to the negligence of the city. One of the witnesses' testified : “ It [condition of the pavement] was from the water falling down the hill, not having a proper drainage off of it, the drippings of the railroad over on the pavement, dripping down, and the water falling down and freezing on the pavement, by not having the proper drainage from the top to get it away from there.” In fact, all the evidence in the case bearing on the subject tended to show that this was the cause of the conditions prevailing under the bridge at the time of the accident. And, as we have said, the evidence was ample to show that this unsafe condition of the tunnel had existed in the winter months since the construction of the bridge. It was, therefore, clearly a case for the jury to determine whether the conditions existing there at the time the plaintiff received her injuries were caused by the negligence of the city. This is a street that is frequented by a great many people in winter as well as in summer. It is one of the public thoroughfares of the city which should be kept in a safe condition for travel at all times.

Whether the plaintiff exercised proper care in passing along the sidewalk, and whether she fell from any want of care on her part, were for the jury. It has been argued that as she approached the bridge she saw ice on the pavement, both in and outside the tunnel, and that, therefore, it was negligence for her to attempt to pass through the tunnel. That position, however, is wholly untenable. There was nothing there to admonish her that by the exercise of care she could not pass with safety through the tunnel. She had done so on a previous occasion when the same or similar conditions existed. The danger was not immediate or imminent. The sidewalk was in constant use by the people of that vicinity. Of course, other persons had fallen on the ice there, but many others had passed over it with safety. In fact, just as the plaintiff was entering the tunnel another person came out of it and passed her. There were spots or places in the pavement where there was no ice which the plaintiff attempted to use to avoid the ice. Under the circumstances, therefore, it was not negligence, to be declared by the court, for the plaintiff to use the sidewalk. As said in the recent case of Steck v. City of Allegheny, 213 Pa. 573. (p.576): “When the testimony shows a defect of such character that the street can be used with safety by the exercise of reasonable care, notwithstanding its defective condition, it is not for the court but for the jury, to determine whether the injured party performed the duty required of him under the circumstances.” Nor was the plain-, tiff to be driven from the street or prevented the use of the sidewalk by the fact that she, like many others in that community, knew of the icy condition of the walk. As we said in City of Altoona v. Lotz, 114 Pa. 238, 246 : “ It is not the law that a resident in a city must remain continuously on his property when the city grossly neglects the repair of its streets, under pain that if he ventures on the streets or walks and suffers injury resulting from the city’s default, he can recover nothing. Nor is the resident bound under like pain to abstain from going to church in the evening, or other places, when he may be moved to go by a sense of duty or love of pleasure. On his part it is enough if he takes the ordinary care which ought to be exercised by a prudent man under the circumstances.” This street and sidewalk, as we have seen, ivas in constant use by the public, and while some persons were injured by falling upon the accumulation of ice, the number was small as compared with those who used the walk in safety. The sidewalk under the bridge was kept open and maintained as a place for travel by pedestrians, and hence there was an invitation by the city for the public to use it. It was not error for the court to decline to say to the jury that the plaintiff was negligent in using the sidewalk under the circumstances.

There could be no question under the evidence that the defendant knew of the unsafe condition of the walk. Since the construction of the bridge, eight years previous, it has been dangerous in the winter months, caused by the accumulation of ice resulting from the peculiar conditions existing at the place. These conditions as well as the danger resulting therefrom were obviously and necessarily known to the defendant. The danger had existed for years in the winter season, and hence it is manifest that the city must have had knowledge of it. Two of the witnesses testified specifically as to the existence of ice on the sidewalk at that place during the month of January of the year 1903. What everybody else sees the city must see.

The only error assigned is the refusal of the court below to. give binding instructions to the jury to find for the defendant, and for the reasons stated the assignment is overruled and the judgment is affirmed.