text:
    Fidelity Insurance Trust & Safe Deposit Company v. Sampson.

      Decedents estates—Real estate—Mortgage — Sheriff’s sale—Distribution— Executors and. administrators.

    Under the Act of February 24, 1834, section 33, P. L. 70, the proceeds of a sheriff’s sale of real estate of a decedent made seventeen years after his decease under foreclosure of a mortgage given by him in his lifetime, are to be distributed to the devisees of the decedent, or their mortgagees, and are not to be paid to the executor of the decedent to be distributed under the direction of the orphans’ court.
    Argued March 28, 1904.
    Appeal, No. 58, Jan. T., 1904, by Charles Benjamin Wilkinson, from order of C. P. No. 8, Phila. Co., March T., 1893, No. 341, sustaining exceptions to auditor’s report in case of Fidelity Insurance Trust & Safe Deposit Company, Trustee, v. James S. Sampson.
    Before Mitchell, C. J., Fell, Blown, Mesteezat and Thompson, JJ.
    Affirmed.

      Exceptions to report of Alexander P. Colesberry, Esq., auditor.
    The facts appear by the opinion of the court which was as follows:
    Having carefully examined the report of the auditor in this matter, and the briefs submitted, we have reached the conclusion that the learned auditor was wrong in awarding the balance of the fund to Charles B. Wilkinson, the surviving executor of James S. Sampson, deceased, on his giving bond to the satisfaction of the court conditioned for the legal distribution of such money.
    'The auditor felt himself bound by the 83d section of the act of assembly of February 24, 1834, and has decided that the court of common pleas has no jurisdiction to distribute the fund and that it must be paid to the executor of the decedent and be distributed by the orphans’ court.
    The question involved is an interesting one and can be considered after a brief statement of the facts of the case. James S. Sampson was the owner of a farm. In the month of November, 1885, he mortgaged the farm to the Fidelity Trust Company. Three months thereafter he died. By his will Sampson left his property, real and personal, to his widow for life, remainder to his children. In 1890 Sampson’s executors filed their first and final account, which was adjudicated. After this the real estate in question, the farm, came into the possession of the widow and children of the decedent. The widow is dead. On June 21, 1896, the Commonwealth Trust Company took a mortgage secured upon three fourths of the shares of the six children of Sampson; the said three fourths interest have by mesne conveyances become vested in two of the children.
    On January 5, 1903, seventeen years after Sampson’s death, the mortgage given by him during his lifetime to the Fidelity Trust Company was foreclosed. After payment of the principal, interest and costs of the mortgage to the Fidelity Trust Company, a surplus was left, which was referred to the learned auditor for distribution.
    There are no debts of record of James S. Sampson, deceased.

      The fund was claimed by the executors of Sampson and the Commonwealth Title & Trust Company claimed its proportionate share of the fund as mortgagee, and that the award should be directly to it.
    There were some minor claims which do not seem to have been in dispute, and awards were made to them by the learned auditor.
    The question involved is, whether at the time of the sale on January 5, 1903, the real estate, which was subject to the mortgage of the Fidelity Trust Company, was the real estate of the decedent or that of the decedent’s devisees or their grantees. If it was still the real estate of the decedent, the learned auditor was correct in his conclusion of law. If not, he should have awarded to the Commonwealth Title & Trust Company directly its proportionate share of the fund. The question is, in our opinion, not a novel one, but was ruled in Hutchins v. Terradill, 21 Legal Int. 300. There, as in the case at bar, the question arose upon the exceptions to the auditor’s report. The opinion of the court was delivered by Shabswood, P. J., and is as follows: “The questions presented on these exceptions may be briefly stated thus : Where land is sold under a mortgage subject to which it was held by a person who has been dead more than five years, and against whose estate there are no debts of record, is the balance of the proceeds, after discharging the mortgage, to be paid to the administrator of the decedent or to the heir of his alienee ? I state the question rather more broadly than the facts of the case are reported by the auditor. It is true that by the 33d section of the act of 1834, it is provided that ‘ in all cases where property, real or personal, of a decedent is sold upon execution, and more money is raised than is sufficient to pay off liens of record, the balance shall be paid over to the executor or administrator for distribution.’ But by the 24th section of the same act,- as interpreted in Kerper v. Hock, 1 Watts, 9, and the long line of cases following that decision, at the expiration of five years land becomes discharged, in the hands of the heir, from liability for the debts of the decedent, not debts of record. It would follow then, that the land ceased for all purposes to be the decedent’s estate, and becomes the estate of the heir. A judgment against the executor or administrator after the time has elapsed under the sale by the sheriff, confers no title on the purchaser: Bailey v. Bowman, 6 W. & S. 118.”
    The case of Hutchins v. Terradill is almost on all fours with the case at bar, the only difference being that in the case at bar the mortgage -was given by the decedent, and in the case of Hutchins v. Terradill by the vendor of the decedent. "We do not see, however, how this can make any difference. A judgment obtained upon either of such mortgages is the same, and it is probable that Judge Sharswood, in deciding Hutchins v. Terradill had in mind the case not only of a mortgage given by decedent’s vendor, but also one given by decedent himself. In his opinion lie says, “ I state the question more broadly than the facts of the case are reported by the auditor,” and refers to the land being held subject to a mortgage, which applies equally to the land held subject to a mortgage of the decedent’s making or of his grantor’s.
    The auditor has relied upon two authorities which he thinks overruled the decision and reasoning of Hutchins v. Terradill. One is the case of Matlack v. Roberts, 54 Pa. 148 (1867). The facts of that case, as given by the auditor, were as follows: William Roberts, by his will, proved May 4, 1841, devised his lands to his two sons, Joseph and John, charged with legacies. In August, 1863 (twenty-two years after the probate of the will), the real estate of the testator was sold by the sheriff on a judgment for a debt due by the said testator in his lifetime. The proceeds were brought into court and distributed by the auditor of the said court and confirmed. No question of jurisdiction was raised in this case in the court below. But, upon an appeal to the Supreme Court upon other matters, the court said: “ The effect of that sale was to vest a title in the purchaser free and discharged of the devise, and to substitute the proceeds of the sale for the land. The auditor made distribution .... The act of February 24, 1833, section 33, provides that the surplus proceeds of a sale upon execution shall be paid to the executor, who shall give security therefor before receiving the money. The proviso then follows that such money shall be distributed as the real estate of which it is the proceeds would have been. This was manifestly intended as the rule to govern the executor in making the distribution. Here the law was so far disregarded, that the surplus was not paid to the executors, but it was actually distributed as the real estate would have been,” etc.
    As is pointed out in the argument of counsel for the except-ants, there is manifest error in the report of this case. The real estate of the testator was sold in 1843, and as William Roberts died in 1841, the sale was within five years of the death of decedent. In the report of this case (I cite from the written argument of counsel for the exceptants) the sale is stated to have taken place in August, 1863, but it says the report was confirmed February 9, 1844, indicating that “ 1863 ” was a misprint, and should read “ 1843,” and a copy of the statement filed in that case, appended as an exhibit to the brief of the ex-ceptants, shows that the sale was had’in 1843; that is, within two years of the death of the decedent.
    The auditor also relies upon Shugar’s Appeal, 153 Pa. 385. The facts in brief were as follows: Joseph J. Karch died intestate May 22, 1886, leaving a widow and daughter. Letters of administration were granted to widow, who filed two accounts prior to 1890. There were outstanding several debts due by the estate, including testator’s mortgage, of about $1,500, which was foreclosed May 19, 1888, the administratrix being the purchaser for $8,150. She paid something on account, received her deed, and gave the sheriff judgment bond for the balance. The question of to whom amount of judgment bond should be paid was then referred to auditor. Upon exceptions to this report McPherson, J., after deducting sheriff’s costs, cost of audit, amount due the mortgagee and another small claim of $3.76, decreed the balance of the money to the administratrix. The Supreme Court in sustaining the lower court says: “ It is manifest that much money has been wasted, and labor incurred in vain, in this attempt to distribute a dead man’s estate in the common pleas.” The sale was there had within two yeai’s of decedent’s death, before the accounts of the administratrix had been settled, and before the lien of decedent’s debts had expired, and therefore is not a parallel case with the one under consideration. It would have been absurd for the Supreme Court to have considered to whom the fund would have gone had the sale been without the five years from decedent’s death when these facts were not before them, and silence upon this subject merely indicates that it was not considered.
    In Kelly’s Appeal, 77 Pa. 232 (1874), the facts were as follows : An action of assumpsit was brought against Kelly, administrator of Lafferty, on promissory notes of decedent, the last of which was dated 1863. Upon reference to arbitrators, they found an award in favor of plaintiff for $1,755, part of which, i. e., $650, was contracted prior to 1863. That in 1864 decedent purchased real estate, placing title in name of his wife, and that at least $2,000 of the consideration was paid by decedent out of his own money. Judgment was entered sci. fa. and alias issued bringing in widow and children of decedent, to which no answer being made, judgment was entered thereon. Fi. fa. issued against administrator, widow and children and real estate in name of wife. The real estate was sold under a vend. ex. in 1872, the proceeds paid into court and referred to auditor for distribution, who awarded the fund to the administrator (Kelly). The lower court sustained exceptions and paid judgment creditor. The Supreme Court reversed, Williams, J., delivering the opinion of the court. The facts of that case show that there was a sheriff’s sale of real estate had four years after decedent’s death upon a personal judgment obtained subsequent to the death of decedent. In such a case the fund goes to the administrator, because such judgment gives no preference over the general creditors of the decedent, and therefore the funds should be marshalled for the benefit of all creditors.
    The decision of Shabswood, J., in the case of Hutchins v. Terradill, supra, seems to have been relied upon by the profession and by the title companies, and the reasoning of the opinion seems to us convincing. Besides, the current of decision, from Gfuier v. Kelly, 2 Binney, 294, down to the very late case of Bacon’s Estate, 202 Pa. 535, established the doctrine in Pennsylvania that, in the earlier cases after seven years, but after the act of 1834 after five years, real estate becomes the property of the heirs or devisees, or their alienees.
    Counsel for the exceptants have furnished us with an admirable brief, which would be embodied as part of the opinion of this court, were it not that it might seem to be an affectation of learning. The language of all of the judges in delivering the opinions of the court could have been cited to show the views which the Supreme Court has taken upon this question.
    Thus in Bailey v. Bowman, 6 W. & S. 118, which was an action of ejectment, defendant claiming under sale on judgment against executor of Jackson, obtained after seven years from Jackson’s death, plaintiffs being representatives of Jackson, it was held that sale gave no title, and judgment for plaintiff, Gibson, C. J., saying: “ In the course of a very few years, it is not only possible but common for one who has derived an estate from the bounty or demise of an ancestor to become in an equitable sense a purchaser of it.”
    In Maus v. Hummel, 11 Pa. 228 (1849), plaintiff claimed an ejectment under a sheriff’s sale had on a judgment obtained against the administrator of the owner of the real estate in question. The judgment appears to have been properly revived once, making its lien extend, under the act of -1797, for twelve years from the death of the debtor, but the sale took place shortly after the expiration of twelve years. It was held that plaintiff had no title, Coulter, J., saying: “ The lien therefore of the debt in this case extended twelve years from the time of Jackson’s death and no longer, and the land in dispute not having been brought into execution within that period, was beyond its power, and the estate had vested in the heir absolutely at the expiration of the twelve years.” And referring to Kerper v. Hock, “ those and the kindred cases in our books establish that at the end of twelve years from the death of a decedent land not converted or perhaps not in actual process of sale on vend. ex. becomes the property of the'heir, liable to his debts and subject to his dominion. The intention of the legislature is not 'to be doubted. They designed to produce the settlement of estates in a reasonable period, to establish repose and certainty in titles.”
    In Smith v. Wildman, 178 Pa. 245, which was an action of ejectment brought by the heirs of. Smith, defendant claimed title and was in possession under an orphans’ court sale allowed on petition for the payment of debts. -Smith died in 1862. The sale was in-1872. Held, that the orphans’ court lacked jurisdiction, and therefore the sale conferred no title. Williams, J., delivering the opinion of the Supreme Court, said, inter alia: “ In this case the debt was not secured by lien, and under the act of 1884 it had ceased to be chargeable to the land, but that had passed to the heirs at law absolutely free and discharged from it.”
    In Bacon’s Estate, 202 Pa. 535, the Supreme Court affirmed the report of an auditor, who held that unnecessary delay and expense would be the only result of an award to personal representatives where the lien of debts had expired.
    We do not think it necessary to discuss the question of whether there was a trust for the payment of debts. The auditor has not put his findings upon that basis, and the cases seem uniform to the effect that such a trust does not arise under mere power to sell. Authority being needed, however, it will be found in Seitzinger’s Estate, 170 Pa. 531, in which Dean, J., delivering the opinion of the Supreme Court, reviews the case and shows very clearly what the law is.
    In Raleigh’s Estate, 206 Pa. 451, the opinion of the court being delivered by Potter, J., the question was considered; and also in Cooper’s Estate, 206 Pa. 628, in which case the opinion of the Supreme Court was delivered by Brown, J.
    Since the learned auditor filed his report in this case, the decision of the Supreme Court in Bowman v. Knorr, 206 Pa. 270, has been published. The facts of that case were as follows: During his lifetime Samuel Knorr executed a mortgage on real estate. He died in 1889. In 1900 the mortgage was foreclosed and a balance realized after payment of the mortgage; this balance was paid into the court of common pleas and referred to an auditor for distribution. By the will of Samuel Knorr an interest during widowhood is left-to the widow, who is made executrix, with remainder to his two children. Samuel Knorr and wife had, during lifetime, executed an antenuptial agreement which gave same interest to wife as in will, except that it was for life instead of during widowhood, and further, the widow under the antenuptial agreement had power to use the principal. The son’s interest was sold at sheriff’s sale more than five years after the death of the father, on judgment against the son. More than five years after the death of Samuel Knorr action was taken against the estate of Knorr on his notes, and subsequently judgment was obtained. A judgment was also obtained against the purchaser at sheriff’s sale of the son’s interest. The claims were (1) executrix of will of Samuel Knorr, (2) widow of Samuel Knorr under antenuptial agreement, (3) owner of son’s interest, (4) judgment creditor of owner of son’s interest, (5) judgment creditor of the estate of Samuel Knorr. Suit started more than five years after Knorr’s death.
    The auditor first disallowed claim No. 5, under the act of 1834, as started too late. He then quotes the 33d section of the act of 1834 in reference to claim No. 1, by the executrix, but refers to the fact that the sale was had eleven years after the death of testator, and therefore disallows claim. Claim No. 2 was disallowed, the auditor deciding that the widow, in probating the will, accepted it, although he leaves open the question of differences between the two documents as to the period of enjoyment of the widow’s Interest.
    In his conclusion of law the auditor said:
    “ 10. The section of the act of February 24, 1834, directing the surplus to be paid to the executor or administrator on the sale of real estate by execution, was intended for the protection of creditors whose claims were liens not of record, and for the protection of other creditors entitled to participate in the fund. There being no such debts and no creditors of the decedent being entitled to participate in the fund, while on the other hand the real estate had vested in the legatees, the fund belongs to the legatees, their heirs and assigns, subject to such measures as may be right to preserve to the widow the income of one third.”
    As to the difference between the will and the antenuptial agreement, the auditor says :
    “The necessity for distinguishing or'reconciling the two expressions may never arise. The auditor is of the opinion that they are reconcilable. But in order to protect all parties in such event, the obligation to pay over the principal should be after she should cease to remain the widow of Samuel Knorr, with a proviso that the words are used without prejudice to the right of the wife to claim during life.”
    And in accordance with the above, distribution was decreed. The court in banc approved of the distribution, except as to the fund held for the widow and directed it. to be held for her life. Distribution was therefore made to (a) trustees for widow (5) owner of son’s interest, (e) judgment creditors of owner of son’s interest, (di) daughter of Samuel Knorr, the testator.
    The judgment creditor of the estate, claimant No. 5, appealed, assigning, inter alia, that the award to the children and widow of Knorr, the decedent, was error. The Supreme Court affirmed the decision of the lower court, the opinion being by Fell, J., thereby approving distribution directly to the parties in interest.
    The widow also appealed, on the ground that her interest was not to be restricted to a life interest, but should be awarded her directly, without the intervention of a trustee, and so that she might use the principal of it as provided in the antenuptial agreement. The appeal of the widow was sustained by the Supreme Court.
    Therefore the Supreme Court adopts the theory of the auditor in that case by ordering the fund distributed directly to the parties in interest, which is precisely the position contended for by the exceptants in the case at bar.
    In order to prevent further delay and expense in the matter, we direct that a table of distribution be submitted to the court by counsel, in accordance with the views indicated in the foregoing opinion, without reference back to the auditor. This will enable any party aggrieved to have speedy appeal and final determination of the matter in the Supreme Court.
    The exceptions to the report of the auditor are sustained.

      Error assigned was in sustaining exceptions to the auditor’s report.

      Henry C. Esling, with him A. J. Wilkinson, for appellant.

      William E. Me Call, Jr., and Charles Carver, for appellee, were not heard.
    May 16, 1904:
   Per Curiam,

This judgment is affirmed on the opinion of the court below.


source: Caselaw Access Project

author: Pee Cxjeiam,

license: Public Domain

text:
    Coues, Appellant, v. Hallahan.

      Deeds—Building restriction—Marketable title—Vendor and vendee.

    A restriction in a deed in a line of title to a lot restraining the erection of buildings within five feet of the line of the abutting street will prevent the owner from making a good and marketable title to the lot under an agreement by which the lot was to be conveyed “ free from all restrictions; ” and this is the case although an ordinance of the city subsequent in date to the deed forbade the erection or re-érection of any building within five feet of the line of the street.
    In such a case while the ground involved in the restriction could not be actually built upon by the owner, he would be entitled to such damages as might be awarded for taking the property into the bed of the street, and the amount of the claim to be presented before a jury appointed to assess damages might be materially affected by the character of his title to the property involved.
    Argued March 29, 1904.
    Appeal, No. 65, Jan. T., 1904, by plaintiff, from order of C. P. No. 5, Phila. Co., Dec. T., 1903, No. 1852, discharging rule for judgment for want of a sufficient affidavit of defense in case of Mary E. B. Coues et al. v. John W. Hallahan.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Thompson, J J.
    Affirmed.
    Assumpsit for purchase money of property, 1814 Chestnut street, Philadelphia.
    Rule for judgment for want of a sufficient affidavit of defense.
    Martin, P. J., filed the following opinion:
    Plaintiffs and defendant entered into a contract for the sale of premises, No. 1814 Chestnut street in the city of Philadelphia, containing in front on Chestnut street twenty-five feet and extending in depth 235 feet to Sansom street. The price agreed upon was $77,500, to be paid in cash upon the execution and delivery of a good and sufficient deed of conveyance. By the terms of the agreement the title to the premises was to be good and marketable and the premises were to be conveyed clear of incumbrance “ and free from all restrictions.”
    A deed was duly executed by the proper parties and tendered to the defendant, who refused to accept the title or make settlement for the property. Suit was brought, alleging a breach of the contract of sale on the part of the defendant. An affidavit of defense was filed alleging delay in the preparation of the title papers beyond the period stipulated in the contract, an outstanding mortgage upon the property, the existence of a building restriction, and the ordinance of the city of Philadelphia providing for the widening of Chestnut street, which affected the property.
    Plaintiffs entered a rule for judgment for want of a sufficient affidavit of defense.
    The feature of the defense which prevents the entry of judgment is the allegation set forth in detail in the supplemental affidavit of defense containing a copy of the deed which creates upon the property a restriction against the erection of buildings or parts of buildings within five feet of the south line of Chestnut street.
    It was argued with great force that the ordinance of councils of the city of Philadelphia, dated March 31, 1884 (p. 54), providing for the widening of Chestnut street, would absorb into the bed of the street this portion of the property, so that, in the absence of a restriction, it would not be possible for the defendant to utilize it for building purposes, and that the restriction was therefore not one which impaired the title to the property sold, but partook of the nature of a prohibition against the erection of combustible buildings within the thickly populated portion of the city, where existing ordinances prohibited the erection of such structures. In the presént case, however, while the ground involved in the restriction could not be actually built upon by the owner, he would be entitled to such damages as might be awarded for taking the property into the bed of Chestnut street, and the amount of the claim to be presented before a jury appointed to assess damages, might be materially affected by the character of his title to the property involved. The case is ruled by Batley v. Foerderer, 162 Pa. 460,467. “ The absolute and unqualified use incident to the unrestricted ownership in fee is thus converted into 6 one clogged with conditions and restrictions in its enjoyment.’ As was well said by Thayeb, P. J., in Lesley v. Morris, 9 Phila. 110, ‘ a perpetual prohibition of this kind fastened upon property has a tendency not only to diminish the enjoyment of the estate, but also to affect its marketable value to a considerable degree,—a degree very difficult to be measured by any pecuniary allowance made to the defendant, and which makes his equity incapable of accurate or reasonable adjustment in money.’ ”
    Rule discharged.

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

      Theodore W. Meath, with him Meath f Meath and Joseph I. Moran, for appellant.

      George L. Crawford, of Crawford f Loughlin, for appellee.
    May 16, 1904:
   Pee Cxjeiam,

There were two restrictions upon the property, either of which would bar a recovery ■ by the plaintiffs. The restriction by ordinance did not absorb or supersede the restriction by the deed, for even if the ordinance should be repealed the covenant in the deed would still restrict the use of the five feet on the line of Chestnut street. .The effect of the ordinance is well stated by the learned judge below, and on his opinion the order discharging the rule for judgment is affirmed.


author: Mb. Chief Justice Mitchell,

text:
    Mulliken, Appellant, v. Earnshaw.

      Wills—Vested and contingent remainders—Devise.

    The policy of the later cases on the construction of wills is to ascertain . the actual intent of the testator without resort to artificial canons of construction or presumptions of intent from the use of certain forms of expression.
    Except where certain forms of expression have become rules of property the intent of each will in turn is to be ascertained as it would be in a contract.
    Where real or personal estate is devised or bequeathed to such children, or to such child or individuals as shall attain a given age, or the children who shall sustain a certain character or do a particular act, or be living at a certain time, without any distinct gift to the whole class preceding such restrictive description, so that the uncertain event forms part of the description of the devisee or legatee, the interest so devised is necessarily contingent on account of the person. For until the age is attained, the character is sustained or the act is performed, the person is unascertained: there is no person answering the description of the person who is to take as devisee or legatee.
    Testator after a devise to his widow for life directed as follows : “ and from and immediately after her death or marriage, I give and devise my said real estate unto my children then living, and the issue of any that may be deceased, in equal parts and shares absolutely and in fee simple, the issue of any deceased child to take only the deceased parent’s share.” Held, that the remainders to the children were contingent.
    Argued March 29, 1904.
    Appeal, No. 60, Jan. T., 1904, by-plaintiff, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1903, No. 579, for defendant on case stated, in suit of Mary A. Mulliken v. John R. Earnshaw.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Thompson, JJ.
    Affirmed.
    Case stated to determine marketable title to real estate passing under the will of Charles P. Mulliken, deceased.
    From the case stated it appeared that the premises in question were 3649 and 8651 Smedley street in the city of Philadelphia. The material portion of the case stated was as follows :
    That in and by said last will and testament the said testator devised as follows : “ I give and bequeath all my personal estate and property whatsoever and wheresoever unto my wife Mary Ann Mulliken absolutely and all my real estate whatsoever and wheresoever I give and devise unto my said wife for aiid during all the term of her natural life if she so long remain my widow and from and immediately after her death or marriage I give and devise my said real estate unto my children then living and the issue of any that may be deceased, in equal parts and shares absolutely and in fee simple the issue of any deceased child to take only the deceased parent’s share.”
    •The said Charles P. Mulliken left surviving him a widow, Mary Ann Mulliken, the plaintiff herein, and the following named children: Edward L. B. Mulliken, Emily Elizabeth Mulliken and Mary Printz Mulliken. The said Edward L. B. Mulliken is married, but without issue. Emily Elizabeth Mulliken and Mary Printz Mulliken are unmarried.
    That on May 28, 1903, Mary A. Mulliken, widow of said Charles P. Mulliken, deceased, contracted to sell the above-described real estate to John R. Earnshaw, the defendant herein, for the sum of $2,600, and convey to him an indefeasible fee simple title. Fifty dollars was paid to plaintiff by defendant on account of the purchase price.
    That the said Mary A. Mulliken on September 18, 1903, tendered to defendant a deed for the above-described property, duly signed and sealed by herself, Edward L. B. Mulliken, and Ella May Mulliken, his wife; Emily Elizabeth Mulliken and Mary Printz Mulliken. Defendant declined to take title to said property and refused to pay the balance of the purchase price upon the ground that the children of said Charles P. Mulliken, deceased, did not have vested remainders in the said real estate, and that consequently the deed executed as aforesaid would not convey to him an indefeasible title.
    The court entered judgment for defendant on the case stated.

      Error assigned was the judgment of the court.

      George J. Edwards, Jr., for appellant.
    It is a well established canon of construction in cases involving wills that where an estate is devised for life with remainder over to the testator’s children then living or surviving, the words “ then living ” or “ then surviving ” shall be held to refer to the period of the testator’s death in the absence of a clearly expressed intent that they shall refer to the death of the life tenant: Barker’s Appeal, (Pa.) 2 Cent. Repr. 282; Thran v. Herzog, 12 Pa. Superior Ct. 551; Johnson v. Morton, 10 Pa. 245 ; Manderson v. Lukens, 23 Pa. 31; Ross v. Drake, 37 Pa. 373 ; Womrath v. McCormick, 51 Pa. 504 ; Cressons’s Appeal, 76 Pa. 19 ; Crawford v. Ford, 7 W. N. C. 532; Laguerenne’s Estate, 12 W. N. C. 110; Bloodgood’s Est., 8 Pa. C. C. Rep. 546.
    In order that these children shall possess the estate, the only requirement is that they shall live longer than the life tenant. The children were all in existence at the testator’s death and the class to take was then definitely ascertained: Manderson v. Lukens, 23 Pa. 31.
    If the estates devised are held to be contingent, then in the event of the death of all of testator’s children without issue, an intestacy would be created which the law always seeks to avoid if possible: Sterling’s Est., 7 Pa. C. C. Rep. 223; Duffy’s Estate, 36 W. N. C. 199; Redding v. Rice, 171 Pa. 301; Merkel’s Appeal, 109 Pa. 235.
    The words “ from and immediately after ” the death of the life tenant are not to be construed as indicative of contingency. They are held to mark the period when an estate already vested in interest vests in possession: Andrew v. Andrew, L. R. 1 Ch. Div. 410; Manderson v. Lukens, 23 Pa. 31.
    If we read the will in the light of a proper interpretation placed on its various parts, it is a devise to the widow for life and “ from and immediately after her death I give and devise my said real estate to my children living at my death and the issue of any that may be deceased.”
    This interpretation is sustained by the following cases: Manderson v. Lukens, 23 Pa. 31; Womrath v. McCormick, 51 Pa. 504; Cressons’s Appeal, 76 Pa. 19; Crawford v. Ford, 7 W. N. C. 532; Laguerenne’s Estate, 12 W. N. C. 110; Estate of John Pechin, 13 Phila. 323; Barker’s Appeal, 2 Cent. Repr. 282; Bloodgood’s Estate, 8 Pa. C. C. Rep. 546 ; Harris v. Carpenter, 109 Ind. 540 (10 N. E. Repr. 422) ; Hoover v. Hoover, 116 Ind. 498 (19 N. E. Repr. 468).

      John <?. Johnson, for appellee was not heard,
    but cited in his printed brief: Mergenthaler’s App., 15 W. N. C. 441; Reichard’s App., 116 Pa. 232; Pleasonton’s App., 99 Pa. 362; Craige’s App., 126 Pa. 223; Reilly’s Estate, 200 Pa. 288; Raleigh’s Est., 206 Pa. 451; Martin’s Est., 185 Pa. 51.
    May 16, 1904 :
   Opinion by

Mb. Chief Justice Mitchell,

The want of harmony in the cases dealing with the period to which the words “ then living ” or similar phrases, in a will, should be applied, arises- mainly from the artificial canon of construction that the period intended is presumed to be the death of the testator. The. canon itself grew out of the preference in the policy of the law, in all doubtful cases, for vested rather than contingent interests. Like all artificial rules it had the constant tendency to become an arbitrary fetter instead of a mere instrument .for the ascertainment of the testator’s intent. The policy of the later cases in this state, if not everywhere, is to get back to the true rule of looking only to the actual intent. There is no sound reason in the nature of things why the actual meaning of the person using the words should not be sought in the case of a will exactly as it is in the case of a contract. But as wills very frequently affect the devolution of real estate and become part of the chain of title they acquire an importance which they would not have as temporary instruments of contract. Hence when certain forms of expression in wills have been given an interpretation and have got into the reports with that meaning and the draftsmen of other wills have followed them, they gradually assume the character of rules of property, which the courts will be careful in disregarding. Except so far as this consideration is a restraining force, there is no reason why the actual meaning of the testator should not be ascertained and enforced on the same lines as it would be in a contract, and the recent decisions contain frequent intimations that precedents in will cases are of little weight. Every will, said Chief Justice SharsWOOD in Fox’s Appeal, 99 Pa. 382, “ must be construed from its four corners to arrive at the true intention of the testator. Decisions upon other wills may assist but cannot control the construction.”

In the present case there is no room for doubt as to the actual intent of the testator. His words are, after a devise to his widow for life, “ and from and immediately after her death or marriage, I give and devise my said real estate unto my children then living, and the issue of any that may be deceased, in equal parts and shares absolutely and in fee simple the issue of any deceased child to take only the deceased parent’s share.” All these remainders are clearly contingent. No child takes a vested interest because until the happening of the contingency prescribed, the death of the widow, it cannot appear that he will be in the class to whom the devise is made, to wit: those then living, and if he should die before then leaving issue such issue would claim directly in their own right under the terms of the will. That this was the time actually meant by the testator is so clear on the face of the will that it would not admit of contradiction by the presumption of a different intent under any rule of construction. But the case does not really involve the canon of construction relied on by appellant. It belongs to the class of Craige’s Appeal, 126 Pa. 223, where the rule is quoted approvingly from Smith on Executory Devises in this form : “ Where real or personal estate is devised or bequeathed to such children, or to such child or individuals as shall attain a given age, or the children who shall sustain a certain character or do a particular act, or be living at a certain time, without any distinct gift to the whole class preceding such restrictive description; so that the uncertain event forms part of the description of the devisee or legatee; the interest so devised is necessarily contingent on account of the person. For until the age is attained, the character is sustained, or the act is performed, the person is unascertained ; there is no person answering the description of the person who is to take as devisee or legatee.”

The rule is- again approved in the same form in Reilly’s Est., 200 Pa. 288 (304), and to the same effect is Raleigh’s Estate, 206 Pa. 451.

That is the exact situation in the present case. There is no person now answering the testator’s description of the persons who are to take, a child who has survived the widow, or the surviving issue of a child who has died before the widow, and it is altogether uncertain which if any of the persons now living may fulfil the description when the event shall happen which is to determine the contingency.

Judgment affirmed.


author: Per Curiam,

text:
    Hill, Appellant, v. Standard Telephone Manufacturing Company.

      Corporations—Directors—Preference of directors’ claims—Trust and trustees.

    The directors of an insolvent corporation to whom the whole property of the corporation has been transferred in partial payment of advancements made to the corporation in good faith, hold such property in trust for the benefit of the creditors of the corporation.
    If the property at the time of the transfer was appraised and the directors have kept it and used it for several years, they must account for the amount of such appraisement and not for a smaller sum actually realized from a subsequent sale of the property.
    In the distribution such directors are entitled to'participate pro rata with the other creditors if it appears that what they did in the matter of the preference to themselves was done openly and without bad faith.
    Argued March 30, 1904.
    Cross appeals, Nos. 57 and 62, Jan. T., 1904, by plaintiff and defendants, from decree of C. P. No. 4, Pliila. Co., Dec. T., 1897, No. 522, in equity in case of Myron F. Hill v. Standard Telephone Manufacturing Company and George F. Payne and Charles G. Wetter trading as George F. Payne & Company.
    Before Mitchell, C. J., Fell, Bbown, Mestbezat and Thompson, J J.
    Affirmed.
    Bill in equity for an account.
    See 198 Pa. 446.
    From the record it appeared that the bill was filed to compel George F. Payne and Charles G. Wetter, who had been directors of the Standard Telephone Manufacturing Company, to account for property received by them from the company in part payment of the company’s debt to them.
    Other facts appear by the opinion of Willson, P. J., which was as follows:
    By the decree of this court made on July 2,1900, and affirmed by the Supreme Court, George F. Payne and Charles G. Wetter, who were copartners trading under the name of George F. Payne & Company, were found to be trustees of certain property which had belonged to the Standard Telephone Manufacturing Company.
    On June 16,1901, the said trustees filed an account or statement, setting forth the items of the property of which they had been declared to be trustees. They also stated in the same that they were unable to fix the market value of the property, and asked the court to determine what disposition should be made thereof, and that they should be allowed such commissions and expenses as the court should deem proper.
    This account was referred to an auditor, who made a report, which was subsequently, upon exceptions, sent back to him for a fuller exposition of the case. The auditor, in his supplemental report, made no change in his findings or conclusions, but certain exceptions, which had been filed to the original report, were not renewed, and we understand that they were, in effect, withdrawn. At any rate, they were not pressed upon our consideration at the argument. The exceptions just referred to are those which related to the claim of the plaintiff Hill, as it was allowed by the auditor.
    There remain, therefore, for us to consider only two questions, which are covered respectively by exceptions filed on behalf of Payne and Wetter, and of the plaintiff Hill.
    The first of these is whether or not the auditor was correct in treating the sum of $24,662.21 named in the decree, before recited, as the sum for which the trustees were responsible, and in making a distribution of that sum accordingly.
    The second question is whether or not the auditor was correct in allowing Payne and Wetter .to share pro rata, as creditors, in the distribution of the balance which was reached after charging them with the sum of $24,662.21, and deducting the costs and the expenses of the audit.
    Upon the first of these questions we think that the report of the auditor must be sustained.
    Payne and Wetter were declared by the decree of this court, and by the Supreme Court, 198 Pa. 446, to be trustees because they took the property by way of an unlawful preference on account of the claim which they had against the company. The property- had been appraised by a committee of stockholders at the sum of $24,662.21, and it was transferred by the company to Payne and Wetter at this valuation in payment pro tanto of the debt due by the company to them.
    This transaction was about January 1,1898. It was three years later when the litigation, which arose in consequence of what had taken place, fixed the liability of the trustees. They then filed the account which is now before us. Meanwhile the property remained in their possession until it was finally sold for a smaller amount than the valuation at which it was taken by Payne and Wetter.
    There was no testimony produced or offered before the auditor to show that the valuation arrived at by appraisement, and accepted by the trustees when they took the same in tlieir individual capacity in partial payment of their claim against the company, was not fair and just.
    They held on to the property, making such use of it as they saw fit, and resisting all efforts on the part of the plaintiff to make it subject to his claim as a creditor of the company until presumably the value of the same was materially affected and diminished. However honest they may have heen in their contention, the effect was, in all probability, disastrous in its consequences upon the market value of that for which they were accountable, and it would seem to be inequitable tó visit such a result upon the innocent creditor, whose activity was finally rewarded with success. The former decree of this court was intended to fix the liability of the trustees at the sum which they had substantially agreed to be the value of the property when they took it.
    We do not know of any reason why we should take a different view of the case, and we must, therefore, sustain the auditor upon this branch of the case. On the same grounds we conclude that the report need not again be returned to the auditor for the purpose of taking proofs as to the price actually realized for the property when the sale eventually occurred. That is quite immaterial if we are right in the views already expressed.
    The second question involves the right of Payne and Wetter to share pro rata in the distribution of the fund as creditors. The auditor allowed them to do so, and his finding upon that head is excepted to by the plaintiff.
    In the adjudication originally filed in this case the question was raised, and it was then held that Payne and Wetter would be allowed to share in the distribution like the other creditors. We do not now intend to depart from the conclusion then expressed. So far as we are aware, there is no ruling upon the question in our own state to guide us, and we are not convinced, by the reasoning in the cases cited from other states, that we were wrong in the first instance.
    If the case were one of actual bad faith on the part of those who were held as a matter of law to be trustees, we should have no hesitation in postponing them until all other creditors should be paid in full. There is, however, nothing in the case which shows any intentional wrongdoing on their part—nothing to indicate that they did not act with full honesty of purpose towards the plaintiff and all other creditors if there were any. What was done was done publicly, without the slightest attempt at concealment. Nevertheless, for very good legal reasons, the conduct of the transaction involved Payne and Wetter in liability, as trustees, and we so declared. We do not think that we are bound to punish them further by holding that, notwithstanding they had no bad motives, and did no moral wrong, they must be debarred from the fund under distribution until all other creditors are paid. Such a penalty would be disproportionate to the nature and gravity of their action. The argument put forward, on behalf of the plaintiff, that such a disposition of the question would enable an experiment to be tried to obtain a preference without injury, if the experiment failed, does not apply with force to the case in our judgment. The making of such an experiment would, of itself, exhibit the intention to do a wrong, which could properly be visited by a postponement of the claim which the creditor attempted to prefer. An honest mistake, however, ought, we think, to be allowed to pass without such a serious result. In this particular case the trustees have, it must be presumed, in the expenses of litigation and in the depreciation of the value of the property, which was the bone of contention, suffered a penalty fully adequate to meet the demerits of their conduct. We, therefore, must also sustain the auditor in his finding upon the second question which we have discussed.
    The exceptions to the supplemental report of the auditor are dismissed, and the report is confirmed.

      Error assigned was the decree of the court.

      Reynolds R. Brown, with him Malcolm, Lloyd, Jr., and Charles H. Burr, Jr., for Myron F. Hill.

      Edward A. Magill, for George F. Payne & Company.
    May 16, 1904:
   Per Curiam,

These are cross appeals from the same decree. Both are dismissed and the decree is affirmed on the opinion of the learned judge below.


text:
    McConway, Appellant, v. Philadelphia.

      Negligence—Cities—XJnpaved street—Nonsuit.

    It is not negligence in a city not to remove boards or other temporary aids to crossing an unpaved street placed there by citizens for convenience in muddy weather: Schively v. Jenkintown, 180 Pa. 196, distinguished.
    Argued March 30, 1904.
    Appeal, No. 67, Jan. T., 1904, by plaintiff, from order of C. P. No. 1, Phila. Co., Dec. T., 1902, No. 2257, refusing to talce off nonsuit, in case of James McConway, by his father and next friend Robert McConway, v. City of Philadelphia.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    At the trial a nonsuit was entered, Brégy, J., filing the following opinion:
    Notwithstanding the case of Schively v. Jenkintown Borough, 180 Pa. 196,1 will enter a nonsuit in this case, and I will, for the purpose of enlightening counsel in the argument that will follow, briefly indicate my reasons therefor.
    The testimony shows that four or five small boys, the plaintiff being about seven years of age, were playing soldiers^ They came down the street in single file, and as they reached the corner of this street they proceeded to cross over the street, which was unpaved. They walked upon a plank, or board, or what some call a beam, which was a piece of wood exactly six inches wide and four inches thick, and about nine or ten feet long. The boys proceeded along with safety until this plaintiff started across the board. He was next to the last boy in line, and as he got half way across he was notified by his brother, who was the last boy and who did not step on the plank, but stayed on the pavement, that they were forbidden to go across that board onto the other side of the street by their parents, and the plaintiff turned around to come back, and, in turning, the board, which was wobbly, as he said, as he walked across, threw him, or he fell, and he broke his arm.
    Now, tins was an unpaved street, and it cannot be negligence on the part of the city to have a street unpaved, because they have the right not to pave a street, if they see proper to do so, until the time arrives when, in the judgment of the city authorities, it is necessary and proper to pave the street. Therefore, there is no negligence in not having the street paved.
    An unpaved street must necessarily in bad weather be muddy and slippery, and must, if wagons and horses traverse it, become rutty—or have ruts in it. It appears that somebody, probably the neighbors—there being no evidence that it was the city at all, or any agent of the city—for their convenience, and to enable them to walk across this muddy road or street, when it was muddy, had put down pieces of boards, and other things, pieces of tin, which they stepped on in crossing this street. The only necessity for stepping on those things was to keep their shoes from being soiled by the mud; they could have walked in the mud, if they saw proper to do it. Therefore, the question is—as this board on which the boy fell had been in the street undoubtedly long enough to give the city notice of it being there, as, if the last witness is to be believed—and he appeared to be a reliable one—it was there at least two weeks, there is no question of notice to the city—or constructive notice—but the question is, whether in any unpaved street, which was muddy in rainy weather, or when the frost came out of the ground, it was negligence in the city authorities not to remove boards and planks which citizens had put down there, so they could cross the street without getting their feet muddy. I cannot see how the city authorities could have said, “We will not allow you to have boards there to walk on to keep your feet clean,” and as I do not think it was negligence not to remove it, I do not see that there was any negligence at all, and for that reason I enter a nonsuit.
    I have not touched the question of proximate cause, as what I have already said does not make that necessary. I do not mean to say that there might not be something it it; I think it is rather close, but I do not decide it on that ground.

      JOrror assigned was refusal to take off nonsuit.

      O. J. Hepburn, with him J. Barton Rettew, for appellant.

      Harry T. Kingston, assistant city solicitor, with him Joseph

      8. MacLaugldin and John L. Kinsey, city solicitor, for appellee.
    May 16, 1904:
   Per Curiam,

In Schively v. Jenkintown, 180 Pa. 196, there was a board walk of long standing but which had been allowed to get out of repair, and the neighbors or persons using it had thrown down boards from time to time for temporary use in keeping out of the mud. At the point where the accident occurred the principal witness, as quoted in the report, testified that “ the bank being pretty high, some eighteen inches above the gutter, and rounded, I have known people to step on these boards and slip.” In one view of the evidence therefore it was a place of danger, especially about dusk when the accident had happened, and the negligence of the borough in permitting it to remain in that condition was necessarily a question for the jury.

In the present case under the facts as stated by the learned judge in entering the nonsuit, there was no sufficient evidence to warrant the inference that the place was dangerous and that the city was negligent in permitting the board to remain there.

Judgment affirmed.


text:
    American Alkali Company to use v. Huhn, Appellant.

      Affidavit of defense—Practice, C. P.—Law of another state.

    The law of another state is a matter of fact to be proved when material in the ease.
    Where the statement of claim shows that the cause of action arose in New Jersey, an affidavit of defense which sets up a prima facie defense under the laws of that state, is sufficient to put the plaintiff to proof to the contrary. •
    Argued March 30, 1904.
    Appeal, No. 66, Jan. T., 1904, by defendants, from order of C. P. No. 5, Phila. Co., Sept. T., 1903, No. 1634, making absolute rule for judgment for want of a sufficient affidavit of defense in case of American Alkali Company to use of Arthur K. Brown, Receiver, v. George A. Hubn et al., trading as George A. Huhn & Sons.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Thompson, JJ.
    Reversed.
    Rule for judgment for want of a sufficient affidavit of defense.
    From the record it appeared that the suit was brought by the receiver, Arthur K. Brown, against holders of the preferred stock of the American Alkali Company for assessments on their stock. The American Alkali Company is a corporation of the state of New Jersey. The defendants filed an affidavit of defense in which they averred that under the law of New Jersey no personal liability is imposed upon the holder of preferred shares to pay calls by the directors not needed for the debts of the corporation, but the remedy of forfeiting and selling the shares provided by the New Jersey act was exclusive.
    The -court made absolute the rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      Clement B. Wood and Ellis Ames Ballard, of Shapley ¿- Ballard, with them C. E. Morgan, for appellants.

      Reynolds B. Brown, with him Malcolm Lloyd, Jr., and Charles II. Burr, Jr., for appellee.
    May 16, 1904:
   Per Curiam,

The law of another state is a matter of fact to be proved when material in the case. The cause of action here arose in New Jersey and the affidavit of defense which for purposes of judgment must be accepted as verity, sets up a prima facie defense under the law of that state, sufficient to put the plaintiff to proof to the contrary.

Judgment reversed and procedendo awarded.


author: Mb. Justice Thompson,

text:
    Nichols, Appellant, v. Pittsfield Township.

      Negligence—Roads—Township—Unguarded embankment—Fright of horse— Proximate and remote cause—Nonsuit.

    In an action by a woman against a township to recover damages for personal injuries sustained by being thrown from a buggy into an unguarded ditch on the side of a public road, a nonsuit is properly entered where the evidence shows that plaintiff’s horse became frightened on the main street of a neighboring town, that plaintiff there lost control of him, that the horse turned against plaintiff’s will into the road where the accident occurred, that after the horse had run down this road some 300 feet, the noise of a nearby train caused him suddenly to whirl around and run backward towards the town, to the point whére the accident occurred.
    Where the proximate cause of an accident on a public highway is not the result of any defect in the highway or of any neglect of duty on the part of the supervisors of the township in which the accident occurred, but is caused by the fright of a horse, no action can be maintained against the municipality.
    To impute a failure of duty on the part of a township where it has provided a public road suitable for the ordinary use of the same because it failed to provide for the possible contingency that might arise from the fright of a horse not connected in any manner with any defect in the roadway, would be to impose a duty far beyond any reasonable requirements and without a substantial reason therefor. Per Thompson, J.
    Argued May 2, 1904.
    Appeal, No. 101, Jan. T., 1904, by plaintiff, from order of C. P. Warren Co., Dec. T., 1903, No. 2, refusing to take off nonsuit in case of Sarah A. Nichols and Perry Nichols, her Husband, v. Pittsfield Township.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Lindsey, P. J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.

      Error assigned was order refusing to take off nonsuit.

      Gteorge B. Munn, with him George H. Higgins, for appellant.
    The case was for the jury: Ewing v. North Versailles Township, 146 Pa. 309; Burrell Twp. v. Uncapher, 117 Pa. 353; Borough of Pittston v. Hart, 89 Pa. 389; Plymouth Twp. v. Graver, 125 Pa. 24; Hey v. Philadelphia, 81 Pa. 44; Bitting v. Maxatawny Twp., 177 Pa. 213 ; Hitchcock v. Amity Twp., 200 Pa. 247; Merriman v. Phillipsburg Borough, 158 Pa. 78; Scott Twp. v. Montgomery, 95 Pa. 444; Closser v. Washington Twp., 11 Pa. Superior Ct. 112; Yoders v. Amwell Twp., 172 Pa. 447; Boone v. Twp. of East Norwegian, 192 Pa. 206; Davis v. Snyder Twp., 196 Pa. 273; Schaeffer v. Jackson Twp., 150 Pa. 145 ; Willis v. Armstrong Co., 183 Pa. 184; Heister v. Fawn Twp., 189 Pa. 253.

      W. D. Hinchley, W. R. Rice and J. H. Alexander, for appellee,
    were not heard but in their printed brief said: The proximate cause of the injury was the fright of the horse at a point distant from the accident and upon another road, and' that fright was neither alleged nor proved to be due to any neglect of duty on the part of the supervisors of the township.
    This case is ruled by Schaeffer v. Jackson Township, 150 Pa. 145 ; Heister v. Fawn Township, 189 Pa. 253; Willis v. Armstrong County, 183 Pa. 184; Habecker v. Lancaster Township, 9 Pa. Superior Ct. 553; Chartiers Township v. Phillips, 122 Pa. 601.
    May 16, 1904:
   Opinion by

Mb. Justice Thompson,

The appellant, Mrs. Nichols, was returning from Youngstown through Pittsfield, and while passing through the latter'place and upon Main street her horse, becoming frightened, began to move rapidly and ran down to a country road which crossed Main street northerly at right angles. There, being beyond her control, he turned down the road. At some 300 feet from Main street the tracks of the Philadelphia and Erie Railroad cross this road and at the time of the accident to the appellant a train was crossing at this intersection of the railroad and the road and in consequence the frightened horse when near the train, suddenly turned round and ran back towards Main street.

As a result of the fright of the horse, appellant lost control of him and while he was running away the buggy was run into a ditch upon the east side of the road and appellant being thrown out was injured. Appellant’s contention was that appellee’s liability arose from negligence in failing to construct and maintain a wall or guard rail along the road at the point in question to protect against accident. The failure of duty which constitutes negligence in such a case must necessarily be the proximate cause of the accident and if such is not the case no liability can arise. In the present case appellant’s testimony clearly established that the failure to build the wall or guard rail upon the public road at the point in question was not the proximate cause of the accident. Mrs. Nichols in her account of the accident testifies that she was in the village of Pittsfield when her horse became frightened. That she tried as hard as she could to hold him but that he increased his pace and she was not able to hold him. That he turned the corner and went toward the Philadelphia and Erie Railroad track. That she did not intend to go that way but that the horse carried her around the corner and went toward the railroad track. That the pace increased and she was unable to hold her horse. That a freight train was crossing near the intersection and that the horse went close to the train, then whirled around and ran toward the town and while going in that direction the buggy ran over the embankment. It is clear that the horse became frightened on the Main street in Pittsfield and that appellant there lost control of him and that when he reached the country road he turned down it and went some 300 feet, when a train crossing the intersection caused him suddenly to whirl. Running back towards Pittsfield and at some distance from the railroad, the buggy was run into the ditch.

The proximate cause of the accident was the fright of the horse and this occurred upon a street in Pittsfield and not upon the public road in question. Appellant having lost control of her horse on that street she was compelled to go down the public road. The passing train caused the horse to whirl and continuing to run away the buggy ran into the ditch and the accident thus occurred. At this point the condition of the road was suitable for public use. The cause therefore of the accident was clearly the fright of the horse and it was not caused by any neglect on the part of the appellee. To impute a failure of duty on the part of a township where it has provided a public road suitable for the ordinary use of the same because it failed to provide for a possible contingency that might arise from the fright of a horse not connected in any manner with, any defect in the roadway, would be to impose a duty far beyond any reasonable requirements and without substantial reason therefor. In the case of Herr v. City of Lebanon, 149 Pa. 222, it is said :

“A road that is in suitable condition for ordinary travel, conducted in the ordinary manner, does not become defective because some extraordinary condition, not foreseen, arises, in consequence of which it is, for the moment, too rough or too narrow to meet all the exigencies of the situation. Whatsoever is so much out of the ordinary course as not to be naturally foreseen as a probable result of the condition of the highway, the road authorities are not bound to provide against, but their neglect to make such provision can be neither a proximate nor a concurring cause of the injury received in consequence of such extraordinary happening.”

The present case is one in which the fright of the horse is the proximate cause of the injury and where the defect of the highway was not any such cause and is in the line of Schaeffer v. Jackson Township, 150 Pa. 145, where it is said :

“ It is therefore clear that the proximate cause of the plaintiff’s injury was the fright of the horse, and that the fright was not caused by any defect in the highway or by any neglect of duty on the part of the supervisors.”

Substantially the same principle is held in Herr v. City of Lebanon, supra; Heister v. Fawn Township, 189 Pa. 253; Willis v. Armstrong County, 183 Pa. 184.

As the proximate cause of the accident was not from a defect in the public highway, the appellants were not entitled to recover and the learned trial judge committed no error in entering the nonsuit.

The assignments of error are not sustained and the judgment is affirmed.


text:
    Kepler v. Lackawanna Lumber Company, Appellant.

      Negligence—Master and servant—Proper appliances.

    In an action to recover damages for death of plaintiff’s husband, plaintiff’s proofs were offered to establish that defendant did not furnish appliances which were of ordinary character and reasonably safe. The defendant moved for a nonsuit, and when this was refused offered no evidence, and made no argument, and plaintiff’s counsel waived his right to go to the jury and submitted the case upon the charge of the court. No request was made for binding instructions, and no points were submitted on behalf of defendant. On appeal the defendant claimed that the trial judge committed error in allowing the jury to pass upon the question because it was claimed the evidence was not sufficient to establish “ any lack of care in any particular.” Held, that if the trial judge had refused to give binding instructions to find for defendant, or to affirm a point substantially to that effect such refusal might have become some basis for the contention suggested, but without eithex', and in view of what occurred, the questioxx became one of fact, and for the determination of the jury under proper instructions.
    When a question of fact is submitted for the determination of a jury the questions of law for x-eview are such only as are necessarily incident to the determination of such question. Questions of fact are reviewable in the appellate court only when they become essential elements in the determination of questions of law.
    Argued May 2, 1904.
    Appeal, No. 53, Jan. T., 1904, by defendant, from judgment of C. P. Potter Co., June T., 1902, No. 90, on verdict for plaintiff, in case of Maud M. Kepler v. Lackawanna Lumber Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Ormerod, P. J. ■
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $3,000. Defendant appealed.

      Errors assigned among others were (1, 2) portions of the opinion quoted in the opinion of the Supreme Court.

      W. 1. Lewis, with him Arch. F. Jones, for appellant.

      J. P. Mullin, with him Eugene Mullin and Mullin & Seibert, for appellee.

      May 16, 1904:
   Opinion by

Mb. Justice Thompson,

The appellee’s husband, on account of whose death this action was brought, was killed while loading logs upon a car of the railroad operated by appellant. Two loaded cars had been placed at a dock on a switch or spur of the main line of the railroad in question and not being securely blocked upon the decline where they were so placed broke from their positions and moving rapidly down grade collided with the car which appellee’s husband was engaged in loading and in the collision he was so injured that his death was the result. These cars were blocked by gill poles or props put down upon the ties against the end of the car, and one of the witnesses testified that by reason of the weight of the cars and their load, the props were shoved aside and the cars in consequence broke away and moved down the grade. There are several methods of blocking cars, viz: by setting the brakes and propping them with props; by chaining the cars to the rails and by safety switches to prevent collision with anything below.

Appellee’s proofs were offered to establish that appellant did not furnish appliances for blocking which were of ordinary character and reasonably safe, and after she closed her case counsel for'appellant moved for a compulsory nonsuit. Upon its refusal appellant offered no evidence and made no argument and appellee’s counsel waived his right to go to the jury and submitted the case upon the charge of the court. No request was made for binding instructions and no points were submit- ■ ted on behalf of appellant, and having thus taken its chance on the question of fact resulting in a finding against it, it cannot now be permitted to try a similar experiment upon a question of law not duly raised. The question thus clearly became one of fact. In submitting such question to the jury the learned trial judge said:

“ It resolves itself down to this single question: Did the defendant company use proper care for the protection of its employees under the circumstances of this case ? If it did then there can be no recovery in this case. If it did not and the injury resulting was caused by that lack of proper care or the negligence of the defendant, then there may be a recovery in this case. Now it is alleged by the plaintiff in this case that the defendant was negligent for the reason that it did not furnish or use the proper appliances to keep these cars where they were placed, and did not use proper care or the appliances which were in ordinary use by the people who were engaged in that business at that time. Now did they or did they not, use the ordinary appliances that were in common or general use at the time at which this accident occurred ? There have been a number of witnesses sworn, who testified as to the appliances that are in ordinary and general use in the business in which these people were engaged.”

Again he said: “ It is the duty of an employer to use the ordinary and usual methods to secure the safety of his employees; they are not obliged to use extraordinary methods or appli-' anees but they are obliged to take the necessary and proper precautions and such as are usually taken for the protection of their employees in the business in which they are engaged. Now that is the principal question for you to determine in this matter. You have heard the evidence- of the witnesses as to the usual methods that are used for the purpose of operating cars under like circumstances to this. And from this evidence it is for you to say as to whether or not the defendant company did use proper and sufficient appliances to keep these cars' in position, taking into consideration the situation in which they were placed and the purpose for which they were used, and what would be the natural and probable results of the failure to use such ordinary and proper appliances as would be necessary to keep these cars in a safe position, and in determining this you must take into consideration all the evidence in the case.”

Thus as the question whether appellant did furnish appliances of ordinary character and of reasonable safety was one of fact, the learned trial judge in the language quoted fairly submitted it to the jury and they have found that they were not of such character and safety: North Penna. R. R. Co. v. Kirk, 90 Pa. 15; Strawbridge v. Bradford, 128 Pa. 200.

The contention of the appellant is that the learned trial judge was guilty of error in allowing the jury to pass upon the question because it is claimed that the evidence was not sufficient to establish “ any lack of care in any particular.” If the learned trial judge had refused to give binding instructions to find for defendant or to affirm a point substantially to that effect, such refusal might have become some basis for the contention suggested, but without either and in view of what occurred, the question became one of fact and for the determination of the jury under proper instructions. When a question of fact is submitted for the determination of a jury the questions of law for review are such only as are necessarily incident to the determination of such question. Questions of fact are reviewable in this court only when they become essential elements in the determination of questions of law. The instructions in this case in this connection were properly given and the determination of the jury is therefore final and conclusive.

As to the other assignments of error relating to the admission of certain proofs, it is sufficient to say that their admission was not error because they were relevant to the question of fact as to the safety and character of the appliances and within the scope of the statement.

The assignments of error are not sustained and the judgment is affirmed.


author: Mr. Justice Brown,

text:
    Major, Appellant, v. Aldan Borough.

      Boroughs—Constitutional law—Increase of debt—Election—Art. IX, sec. 8 of the constitution—Act of June 9, 1891, P. L. 252.
    Neither in art. IX, see. 8 of the constitution nor in the Act of June 9, 1891, P. L. 252, providing how an election upon a proposed increase of municipal indebtedness shall be held, is there any provision that the electors shall pass upon the purpose of the loan. The statutory provision, that the purpose and amount of the increase shall be written or printed on the inside of the ticket, is simply for the information of the voter that he may vote with intelligence upon the question submitted to the electors.
    The purpose for which any municipal indebtedness is to be incurred, whether within or above the constitutional limit of two per centum of the assessed valuation, is for the municipal authorities, to whom the electors have delegated the power and authority to speak and act for them ; but, when by an ordinance the municipal authorities provide for an election for the increase of the debt, and the purpose for the increase is distinctly set forth in the ordinance and in the notice of the election, and on his ticket' the elector finds a brief statement of it, and the amount of the increase, the borough council cannot, after the increase is authorized by a popular vote, .so cast, divert the money from the purpose for which they, in the first instance, declared it was to be used. The mere adoption, however, of a certain method of carrying out the purpose; or making changes in the same, cannot be regarded as an unlawful diversion, if, in the end, the real purpose of the authorized loan is attained.
    Where the purpose of an increase of indebtedness is stated to be the construction of a telford pavement according to certain specifications, the borough authorities will not be restrained from awarding the contract on different specifications, if it appears that the only difference between the two specifications was a change in the bottom construction, which in the opinion of the trial court made no material difference in the solidity of the road.
    Argued Feb. 11, 1904. Reargued Feb. 23, 1904.
    Appeal, No. 304, Jan. T., 1903, by plaintiffs, from decree of C. P. Delaware Co., June J., 1903, No. 313, on bill in equity in case of Henry H. Major and J. Harris Reed v. Aldan Borough et al. Before Mitchell, C. J., Dean, Fell, Mestbezat and Thompson, JJ., on argument.
    Before Dean, Bbown, Mestbezat, Potteb and Thompson, JJ., on reargument.
    Affirmed.
    Bill in equity for an injunction. Before Johnson, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned among others was decree dismissing the bill.

      W. B. Broomall, with him J. B. Ilannum, for appellants.
    Where municipal authorities are assuming a power not delegated to them by law, then a court of chancery considers them no longer acting under legal authority, but treats them as individuals acting without legal authority: Hill v. Commissioners, 1 Parsons’ Equity Cases, 501; Barr v. Philadelphia, 191 Pa. 438.
    Where the law requires the submission of a question to the vote of the people, it must be submitted to them. They are then the repository of the discretion in the matter and the discretion is removed from council: Yesler v. Seattle, 1 Wash. 308 (25 Pac. Repr. 1014).

      G. Wilfred Gonard and V. Gilpin Robinson, with them Isaac E. Johnson, for appellees.
    The electors were not to determine the purpose of the increase-: Barr v. Philadelphia, 8 Pa. Dist. Rep. 19; Bloomsburg Town Election, 4 Pa. Dist. Rep. 671.
    On an application to restrain an issue of bonds the court will not- consider the inducements held out to the voters : Simonton on Municipal Bonds, 71.
    The case of Yesler v. Seattle City, 1 Wash. 308 (25 Pac. Repr. 1014) is remarkably like the case at bar.
    It is totally out of reason to suppose that the legislature intended business matters such as the materials or method of road building, or the plans or structure of a building to be passed upon by the voters: Fritchey v. Huntingdon School Directors, 6 Pa. Dist. Rep. 680 ; Snyder v. Kantner, 190 Pa. 440.
    May 23, 1904:
   Opinion by

Mr. Justice Brown,

By ordinance of April 20, 1903, the borough of Aldan resolved to increase its indebtedness, and provision was made for submitting the question of the increase to a popular vote, as the same was in excess of two per centum of the assessed valuation of the property within the municipality. The proposed increase was $17,500 and was for making street improvements. The sum of $15,700 was, as is expressed in the ordinance, to be used as follows:

Grading and telfording Providence Road, from Springfield Road to Oak Lane . . $8,000.00

Grading, telfording and surfacing Oak Lane . 700.00

Grading, telfording and resurfacing Springfield Road from Providence Road to P. B. & W. R. R......... 5,000.00

Grading, telfording and resurfacing Clifton Avenue from Springfield Road to Rively Avenue 2,000.00

The balance, $1,800, was to be used in grading, improving and draining five other streets. At an election held May 26,1903, the borough electors voted in favor of the proposed increase. Subsequently an ordinance was passed authorizing the loan, and the money was appropriated for the purposes set forth in the ordinance of April 20. The borough authorities advertised for bids for doing the work on the four streets for which the sum of $15,700 had been appropriated. The specifications upon which the bids were to be received provided as follows: “ Upon the subgrade as prepared, a telford pavement is to be laid, the foundation course must consist of irregular shaped, hard, tough and durable stone, laid by hand so as to break joints as far as possible ; they must be six inches deep, six to ten inches long, and four to six inches wide, and must be placed on their broadest edges and lengthwise across the roadway. All the irregularities of the upper part of said, foundation must be broken off with napping hammers, and the interstices filled up with stone chips, making this layer when complete a firm, substantial and even pavement six inches deep.”

With the limited amount of money in their hands the borough authorities were unable to enter into a contract in strict conformity to the specifications, and, upon their modification, a contract was made with Patrick Mahoney. This bill was then filed to prevent him from proceeding with the work on the ground that the council, in making the contract with him, had diverted the money from the purposes for which the municipal authorities had been authorized to borrow it.

By section 8, article IX, of our constitution, no municipality can incur any new debt, or increase its indebtedness to an amount exceeding two per centum upon the assessed valuation of the property within it, without the assent of its electors at a public election, in such manner as shall be provided by law. The Act of June 9, 1891, P. L. 252, provides how an election upon a proposed increase of municipal indebtedness shall be held, and directs that the notice of the election shall contain a statement of the amount of the last assessed valuation, the amount of the existing debt, the amount and percentage of the proposed increase, and the purposes for which the proposed indebtedness is to be increased. But all the elector does is to vote “ no increase of debt ” or “ debt may be increased.” Neither in the constitution nor in the act of assembly regulating the election is there any provision that the electors shall pass upon the purpose of the loan. The statutory provision, that the purpose and amount of the increase shall be written or printed on the inside of the ticket, is simply for the information of the voter, that he may vote with intelligence upon the question submitted to the electors. In Barr v. Philadelphia, 191 Pa. 438, in affirming the decree of the court below, we adopted as a correct view of the law upon this subject the following from its opinion: “ It is reasonably clear from the language, both of the constitution and of the act of 1891, that it was not the intention that the electors should determine the purposes to which the moneys are to be applied. The electors are to be given notice of the purposes to which the corporate authorities intend to apply them. If it were the intention of the legislature to have the electors determine the purpose, there would have been a direction not to describe it briefly in their ballots, but clearly, precisely and exactly. The assent of the electors is to be given ‘ to such increase of indebtedness,’ and nowhere is it indicated that they are to assent to or dissent from the purpose or purposes for which the moneys are to be utilized. The ballots are so worded that the electors vote for an increase or no increase of the debt, and the brief description of the purpose is intended for their information, so that they may vote upon this question intelligently.” In the present case the purpose for which the money was to be borrowed was clearly set forth in the notice of the election as being the one named in the ordinance directing the election to be held.

The purpose for which any municipal indebtedness is to be incurred, whether within or above the constitutional limit of two per centum of the assessed valuation, is for the municipal authorities to whom the electors have delegated the power and authority to speak and act for them. The very purpose of a town council and chief burgess is that municipal action may be taken by the electors through their representatives as a deliberative body, instead of acting themselves by town meetings, which often would be little more than mobs, when questions of public improvements or relating to the general welfare require consideration and action. It would be utterly impracticable to submit to a popular vote the questions that constantly arise in connection with the control and management of municipal affairs. Not only is the purpose for which public indebtedness is to be contracted, for the councils of a city or a borough, but the method, as well, of carrying it out. If it were otherwise, there might be as many minds as voters as to how the purpose should be carried out. While this is the general rule,’ it is not to be extended to a case like the present without proper qualifications. When, by an ordinance, the municipal authorities direct, in conformity to the constitutional requirement, the submission to a popular vote of the question of the increase of the indebtedness, the purpose for increasing it is distinctly set forth, and, in the notice of the election, this purpose again appears, and on his ticket the elector finds a brief statement of it and the amount of the increase, the borough council cannot, after the increase is authorized by a popular vote, so cast, divert the money from the purpose for which they, in the first instance, declared it was to be used. In voting for the increase the electors have a right to assume, and vote accordingly, that their representatives will expend the money for the purpose for which they asked it. To permit them to do otherwise would be to permit them to practice fraud and deception upon their trusting constituents, and when an attempt is made by those in authority to so violate faith with the people, they will be halted by a chancellor. But such diverson of public moneys from the purpose for which they are raised must be substantial. Sound discretion must rest in the authorities in carrying out the purpose, and the mere adoption of a certain method in doing so, or making changes in the same, cannot be regarded as an unlawful diversion, if, in the end, the real purpose of the .authorized loan is attained. That it will be attained in the case now before us is manifest from the findings of the learned judge below.

While the court did find-,' “ The pavement provided for in the last,named contract is a macadam pavement with the base made of slag and is not a telford pavement as provided for in said ordinances,” this finding must -be taken in connection with others. The specification calling for a telford pavement, to which we have directed attention and on which the appellants insist the contract should have been made, is : “.Upon the sub-grade as prepared, a telford pavement is to be laid, the. foundation course must consist of irregular shaped, hard, tough and durable stone laid by hand so as to break joints as far as possible ; they must be six inches deep; six to ten inches long, and four to six inches wide, and must be placed on their broadest edges and lengthwise across the roadway. All the irregularities of the upper part of said foundation must be broken off with napping hammers, and the interstices filledup with stone chips, making this layer when complete a firm, substantial and even pavement six inches deep.” That of which they complain, and upon which the contract was awarded, provides : “ Upon the subgrade as prepared a pavement is to be laid; the foundar tion course must consist of irregular shaped, hard, tough and durable slag of size and quality to be approved by the highway committee, eight inches deep, and repeatedly rolled with a roller weighing not less than fifteen tons, until it forms a foundation at least six inches deep.” Each specification continues : “ The foundation must be evenly covered to a depth of three and a half inches with Glenn Mills trap rock stone of one and a half inch size, then covered with a light coat of clay, free from lumps, and thoroughly rolled with a roller weighing from three to four tons. Any irregularities or depressions appearing in the roadway must at once be filled with broken stone to bring the same to the proper form of grade and cross section. This layer of stone must be evenly covered with one inch of coarse trap rock screenings, mostly of the three quarter inch size, but containing sufficient dust to make it bind thoroughly, well sprinkled with water and repeatedly rolled with a roller, weighing not less than fifteen tons, until the surface becomes perfectly firm, smooth and hard. The sprinkling must be kept up during the final rolling; any depressions or ruts that may appear on any part of the pavement from any cause whatever must be filled with three quarter inch stone and thoroughly compacted.” From a comparison of these two specifications it is instantly clear that the only difference is a change in the bottom construction. The sixteenth finding, in answer to a request of the appellees, is : “I am of the opinion that a telford construction of slag of the size, shape and laid in the same manner as natural stone would constitute a telford pavement.” Another finding is: “ The two constructions differ, in that one is stone telford foundation and the other' is a slag, answering more nearly to a macadam construction. As far as the end to be reached is concerned I am of the opinion that if a solid foundation is procured under the same circumstances the one is as as good as the other.”

From the foregoing it is clear that the borough authorities were not violating good faith to the electors of ,the borough, or undertaking to do anything for which, under the circumstances, they ought to be enjoined. As courts of equity interfere with the acts of municipal corporations only upon the clearest proof that they are without authority, this bill was properly dismissed.

Decree affirmed at costs of appellants.


text:
    Laning, Appellant, v. Darling.

      Equity—■Trusts and trustees—Findings of facts—Review.

    On a bill in equity against the heirs of an attorney at law to have a trust declared as to certain land which the attorney had acquired at a tax sale about twenty-one years before the filing of the bill, a finding by the court below, based upon sufficient évidence that the attorney did not, as alleged by the complainants, act as a trustee for them in the purchase at the tax sale, will not be reversed by the Supreme Court.
    Argued April 12, 1904.
    Appeal, No. 267, Jan. T., 1908, by-plaintiffs, from decree of C. P. Luzerne Co., Dec. T., 1902, No. 8, dismissing bill in equity in case of John Laning et al. v. Thomas Darling et al.
    Before Mitchell, C. J., Dean, Fell, Mestrezat and Potter, JJ.
    Affirmed.
    Bill in equity to have a trust declared as to certain land. Before Ferris, J.
    The opinion of the Supreme Court states the case.

      Error assigned among others was decree of the court dismissing the bill.

      M. J. Mulhall, with him W. L. Baeder, for appellants.

      Thomas Barling, of Woodward, Barling Woodward, for appellees.
    May 23, 1904 :
   Per Curiam,

The bill to have a trust declared as to the land, in controversy, charged that Hollenback and Urquhart were owners in common, who died seized, and their heirs desiring partition “ secured the services ” of Darling as attorney for that purpose ; that he advised letting the land be sold for taxes; that it was so sold in 1881 to Darling as purchaser in trust, and in January, 1882, he conveyed one half to the heirs of Urquhart in accordance with the trust. This bill was filed in November, 1902, by the heirs of Hollenback to have a trust declared in their favor as to the other half of the land. There was a responsive answer denying any trust relation.

The learned judge below found as facts that the land had been owned in common by Hollenback and Urquhart but they had not died seized, as in 1866, they had conveyed it by articles of agreement to one-Moore; that the purchase money not having been paid, the executors of Urquhart and Hollenback, Darling being one of the latter, had in 1870 brought ejectment to enforce payment, but the result of the suit did not appear; that in 1876, the treasurer of Luzerne county had conveyed the land to the county commissioners, describing it as unseated land surveyed to James Withey (a predecessor in title to Hollenback and Urquhart) and sold for taxes under the act of March 13, 1815; that the county commissioners in 1881 sold the land at public tax sale to Darling; that in 1882, Darling had conveyed approximately one half the land by four separate deeds to four heirs of Urquhart; that Darling at the time of his purchase and up to the date of his death was an-executor of the will of Hollenback and acted as attorney for his estate, but there was no evidence that he was employed by or acted as attorney for the Hollenback heirs apart from their interest in the said estate ; that Darling died in 1889, and that no trust relation to this land was admitted by him in his lifetime, or asserted by the Hollenback heirs until the filing of this bill in 1902. The judge refused to find that in 1881, or prior thereto the heirs of Hollenback and Urquhart secured the services of Darling for the purpose of effecting a division of the land in question among them ; or that the land was allowed to be sold for taxes in pursuance of his advice; or that the conveyances to the Urquhart heirs were made in the execution of a trust, or even in the performance of a promise, in which the Hollenback heirs Avere in any way interested ; or that the conveyances to the Urquhart heirs were made to them as such, or were made with the knowledge and consent of the Hollenback heirs. “ These findings,” he said, “ are not made, because the evidence is not, in our opinion, sufficient either in quality or quantity to warrant them.”

Adverting to the fact that it did not appear in evidence (although the fact should be peculiarly within the knowledge of the principal -witness) that Darling ever received any compensation for his serAdces in this matter, unless his purchase in his own name and retention of the remainder of the tract may have been deemed an equivalent therefor, the judge said: “ In view of the fact that he apparently bought for himself as the highest bidder at an open public sale and held under a recorded title regular and absolute on its face until his death eight years later, and that his devisees have so held ever since with the apparent acquiescence of the plaintiffs and their predecessors, none of whom have been shown to have been under legal disability,— in view of these facts we are not prepared to say that the evidence is so clear, precise and convincing as to satisfy the conscience of a chancellor and make it his duty in a proceeding begun approximately twenty-one years after the acquisition of title, to declare that title subject to a trust, on the theory that Mr. Darling was an attorney at law representing the plaintiffs or their predecessors in the purchase of this property for them at tax sale. We are not satisfied by the evidence that he was their attorney in this matter.”

These findings which for the sake of brevity we have thus materially condensed, were made by the learned judge below upon full and deliberate consideration of the whole evidence, which amply sustains them. The assignments of error are mainly to the findings of fact and we have not been convinced that any of them are sound.

The assignments of errors of law are to the refusal to affirm points which however correct as legal propositions had no relevancy to the facts as found by the court.

Decree affirmed.