text:
    Ansley v. City of Scranton, Appellant,

      Arbitration — Referee—Findings of fact — Municipality—Sewer—Negligence.

    Since a referee’s findings of facts are-as conclusive as a jury’s verdict, it follows that unless a trial judge would have been bound to direct a compulsory -nonsuit, had the case been tried before a jury, or direct a finding for the defendant, it is error to set aside the referee’s report.
    In an action of trespass against a city, to recover damages for a loss sustained by the continuous obstruction of a sewer in a lumber yard for many years, a referee’s finding that the plaintiff was guilty of contributory negligence in continuing to store the lumber year after year in the same place, has the force of a verdict,' and .should not be set aside, where it appears that the controverted question could not be determined by any fixed and determinate standard of duty, but was a mixed question which called for a consideration of all the facts.
    Argued Feb. 26, 1907.
    Appeal, No. 72, Jan. T., 1907, by defendant, from order of C. P. Lackawanna Co., Jan. T., 1902, No. 320, dismissing exceptions to referee’s report in case of Mary C. Ansley and Edward Ansley,- Executors of the Estate of Joseph Ansley, deceased, v. City of Scranton.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Judgment modified.
    Trespass to recover damages for injuries sustained by the obstruction of a sewer in a lumber yard.
    The case was tried before J. W. Carpenter, Esq., referee.
    The facts are stated in the opinion of the Supreme Court.
    The referee by his first report found in favor of the plaintiff for $3,767.
    The court sustained exceptions to the report, and in a second report the referee awarded the plaintiff $10,902.

      Error assigned was in dismissing exceptions to referee’s second report.

      David J. Davis, city solicitor, with him H. E. Van Deusen, assistant solicitor, for appellant.

      Edward W. Thayer and George M. Watson, for appellees.

      May 6, 1907:
   Opinion by

Mr. Justice Stewart,

If, upon consideration of all the evidence in the case, it could be said that continuing to store lumber year after year in the place where the damages were sustained was not negligence, this judgment should be sustained; otherwise it must be so modified as to accord with the law and the facts. The referee before whom the case was tried found, with respect to this item of .plaintiff’s claim, which is the only one controverted, that it resulted from the concurring negligence of the parties. Upon exceptions filed, the court reversed this finding of the referee, and recommitted the report, with instructions that plaintiff’s claim be allowed, on the ground that the evidence did not disclose contributory negligence. Since a referee’s findings of fact are as conclusive as a jury’s verdict, it follows that unless a trial judge would have been bound to direct a compulsory nonsuit, had the case been tided before a jury, or direct a finding for the defendant, it was error to set aside the referee’s report: Bruch v. Philadelphia, 181 Pa. 588.

The facts are these: Joseph Ansley, whose estate is here represented by his executors, plaintiffs in the action, ivas the owner of several adjoining lots of ground in the city of Scranton, which he had occupied for many years prior to his death in 1901, in conducting a general lumber business. One of these lots, and the only one that concerns us to inquire about, was used largely, if not exclusively, for the storage of lumber; the improvements thereon consisting of barns, sheds and unenclosed skid ways. In 1887 the city of Scranton constructed a sewer along a natural water course which extended through this lot. Very shortly thereafter some of the stones covering the sewer becoming displaced fell within the sewer, and, with the accumulation of culm, dirt and refuse resulting, formed an obstruction which rendered the sewer inadequate for the purpose intended. As a consequence, after any considerable rainfall, water Avould be discharged from the sewer at the point of obstruction and the plaintiff’s lot would .be wholly inundated. These inundations began with the construction of the sewer in 1887, and were repeated several times each year thereafter until the bringing of this suit in December, 1901. Damages were claimed in the action for injury to lumber by this flooding of the lot covering a period of six years next preceding the bringing of the action. It was shown that during this period the lot had been flooded some thirteen times; that such flooding was to be expected after any considerable fall of rain, and that dui’ing no year had the lot escaped. Notwithstanding this condition of things, with full knowledge that the obstruction remained, the owner of the lot continued to use it with the conveniences thereon, excepting a barn which he had abandoned as no longer available because of the flooding, just as he had done before, storing his lumber in the sheds and on the skidways where it was exposed to whatever injuries these recurring floods might work. Beginning with 1896 a record of these floods was kept by several of plaintiff’s witnesses, with an inventory and appraisement of the damage sustained on each occasion. These damages included cost of cleaning up the barns after each flood, the repairs made necessary, the rental value of the abandoned barn, and injury to stored lumber, with the cost of repiling the same. The last two items alone are disputed. The others were allowed by the referee and entered into the judgment rendered.

The defendants’ negligence is not questioned. Here was an obstruction in a public sewer easily removed, of the existence and continuance of which the city authorities had repeated notice, and notice as well of the injury it was occasioning the owner of the lot. Notwithstanding, it was allowed to remain during all this period. Defendants’ negligence conceded, did the situation as determined by this negligence impose any duty upon the owner of the lot with respect to its continued use as a place for storing lumber, or, if used, with respect to the manner in which the lumber was to be stored or piled ? The referee found that plaintiff’s testator Avas guilty of contributory negligence in replacing his lumber and other personal property where he was bound to know from prior experience that it Avas likely to be flooded and injured with the recurrence of every considerable rainstorm, and there is no evidence that any of the storms were extraordinary.” It is not necessary that the contributory negligence relied upon should have been an operating cause to produce the injury; if it be shown to have enhanced the dámages, to Avhatever extent this is true, it is sufficient defense: Gould v. McKenna, 86 Pa. 297. In the present case it is set up as a defense not to the action, but to the claim for injuries to lumber. The court below on a review of the evidence reached a different conclusion from that of the referee, and was of the opinion that the facts did not warrant an inference of contributory negligence, inasmuch as there was no finding that the obstruction in the sewer was of a permanent character ; the argument being that the repair of the sewer was a continuing duty resting on the city, and that the owner of the lot was under no duty to anticipate its neglect. It is not for us to inquire which of these conflicting views is better supported by the facts. The duty of repairing the sewer was unquestionable and a continuing one; and it is true that ordinarily one is not bound to anticipate the negligence of another; but the negligence existing and obvious, the danger thereby threatened is to be avoided rather than invited. To what extent one must go to avert the mischief depends upon the circumstances of the case and the situation of the parties with respect thereto. Whether, with Ansley’s knowledge that the cause of the flooding of the lot was this obstruction which the city had allowed to remain in disregard of his repeated notices since 1887, subjecting his land to overflow year after year during a period of nine years preceding the period for which damages are claimed, and in view of the further fact that an inspection of the sewer at any time would have made it apparent to him that its condition was unchanged, it was less than ordinary prudence in him to continue to store his lumber upon his lot, was a question that could not be determined by any fixed and determinate standard of duty. Under the evidence it became a mixed question which called for consideration of all the facts, not only those relating to the cause of the floodings, their frequency and regularity, but the situation and surroundings of the parties as determined thereby. ITad the case been tried before the jury, a submission of the question could not have been avoided. The jury’s determination would have been final, and we must allow like effect to follow that of the referee, who by agreement of the ■ parties was substituted for the jury. The referee in his first report awarded the plaintiffs the sum of $3,767, covering other items of damage than injury to lumber. In his second report, under directions from the court, he added to this as compensation for damage to lumber, the cost of removing and replacing same, $4,020, and the additional sum of $1,608 as compensation for detention of payment for six years and eight months from March 4, 1900. In view of our determination of the question involved, these additions must be eliminated, except a proportionate amount of the sum awarded for detention.

The finding of fact by the referee in his report is adopted and the judgment is now modified by reducing the amount thereof to the sum of $5,274, with costs.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Nolan v. Nolan, Appellant.

      Trusts and trustees — Irrevocable deed of trust — Creditors—Fraud.
    A person sui juris cannot as against creditors, either prior or subsequent, settle his property, by an irrevocable deed, in trust for his own use for life, and over to his appointees by. will, and in default of such appointment, to such persons as would be entitled to take under the intestate laws in such a manner as to enjoy all the benefits of ownership and share none of the burdens.
    Argued March 5, 1907.
    Appeal, No. 93, Jan. T., 1907, by defendant, from order of C. P. Berks Co., Nov. T., 1906, No. 56, making absolute rule for judgment on answers of garnishee in case of Thomas J. Nolan v. Helen T. Nolan, Defendant, and The Reading Trust Company, Garnishee.
    Before Mitchell, O. J., Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    j Rule for judgment against garnishee on answers.
    From the record it appeared that Helen T. Nolan, a widow with six children, on May 31, 1898, by deed duly recorded conveyed certain property to the Reading Trust Company in trust to pay her the-income for life in monthly installments, and upon her death to transfer the principal to such persons as she might by will appoint, and in default of appointment to her next of kin. The deed recited that it was deliberately made irrevocable, but the trustee was authorized to reconvey the property to her if the trustee at any time should think it expedient to do so.

      On March 6, 1904, she confessed a judgment to Thomas J. Nolan for $2,500, on which he issued an attachment execution summoning the Reading Trust Company as garnishee. The garnishee answered, admitting in its hands: Principal of above trust, $23,125 ; income of above trust, $370.36 ; other moneys due Helen T. Nolan, $250.14.
    On the argument of the rule for judgment on the answers it was conceded that the last two items were subject to the attachment. The court entered judgment against the garnishee for the entire amount.
    Garnishee appealed^

      Error assigned was the order of the court.

      Isaac Hiestér, for appellant.'
    At the time the deed was made the indebtedness had no existence and was n'ot in contemplation, and there is no evidence that Mrs. Nolan intended to withdraw this property from the reach of this creditor: Harlan v. Maglaughlin, 90 Pa. 293; Kimble v. Smith, 95 Pa. 69; Buckley v. Huff, 114 Pa. 596.
    The general rule is that a voluntary conveyance reserving only a life estate for the grantor is good against subsequent creditors as far as the principal is concerned : Pacific Nat. Bank v. Windram, 133 Mass. 175; Rynd v. Baker, 193 Pa. 486; Potter v. Fidelity Ins., etc., Co., 199 Pa. 360; Andress v. Lewis, 1 Pa. C. C. Rep. 293.
    The power of testamentary appointment does not affect the question : Com. v. Buffield, 12 Pa. 277; Bingham’s App., 64 Pa. 345; Masonic Aid Assn. v. Jones, 154 Pa. 99; Murphy v. Solms, 6 Pa. C. C. Rep. 264.
    Nor can the power given by the deed to the trustee to shift the uses to the benefit of a grantor in any manner enlarge her estate unless and until the trustee should so act. This power is exclusively that of the trustee: Patterson v. Caldwell, 124 Pa. 455; Bear’s Est., 60 Pa. 430; Covanhovan v. Hart, 21 Pa. 495; Werner v. Zierfuss, 162 Pa. 360; Ashhurst’s App., 77 Pa. 464.

      I. B. Stevens, for appellee.
    This case is plainly within all that is essential in the rule laid down in Mackason’s Appeal, 42 Pa. 330, and kindred cases, that a person sui juris cannot, as against creditors, present or future, settle his estate upon himself free from liability for their claims: Johnson v. Harvey, 2 P. & W. 82; Lewis v. Miller, 21 W. N. C. 94; Patrick v. Bingaman, 2 Pa. Superior Ot. 113; Gatherwood’s Est., 29 W. N. C. 344; Hay v. Price, 15 Pa. Dist. Rep. 144.
    May 6, 1907 :
   Opinion by

Mr. Justice Elkin,

|The learned court below held that the principal as well as the income of the trust estate was subject to attachment by a subsequent creditor. The appellant relies largely on the provision in the deed which in express terms makes it irrevocable by the settlor to sustain the voluntary conveyance.

It is conceded that at the time of the execution of the deed of trust the indebtedness on which the present proceeding is founded had not been created, nor was it in contemplation, nor is there any evidence to show that the settlor intended to withdraw the property set aside from the reach of the attaching creditorTj For these reasons it is earnestly contended that the statute of 13th Elizabeth does not make the deed of trust void as to a subsequent creditor. In support of this position Harlan v. Maglaughlin, 90 Pa. 293; Kimble v. Smith, 95 Pa. 69, and Buckley v. Duff, 114 Pa. 596, are cited. The rule stated in these cases is settled law, but its application in a case where the settlor has conveyed her property in trust in such a manner as to enjoy all of the benefits of the estate without sharing any of its burdens may well be doubted, if, indeed, it has any application at all.

It is further argued that a voluntary conveyance reserving only a life estate to the grantor is good against subsequent creditors. In support of this position reliance is placed upon Pacific National Bank v. Windram, 133 Mass. 175, in which it was held that where a man transfers a trust fund providing in terms that the income thereof is to be paid to him during his life, and the principal at his death to be paid or transferred to others, the principal may be beyond the reach of future creditors, but it will be observed that it was only suggested, not decided, that the principal may be beyond the reach of creditors, while the only question determined was that the income is liable for his debts. Rynd v. Baker, 193 Pa. 486, is relied on to support the doctrine that a voluntary deed reserving a life estate to the grantor may become irrevocable against the beneficiaries, even though the enjoyment of the estate is postponed until after the death of the grantor. The trust estate, however, in that case was sustained on the ground that the settlor during his life never made, or attempted to make, any revocation of the deed of conveyance, but lived under its provisions and in accordance with its terms until his death,prior to which he had exercised his power of appointment, naming the beneficiaries who were to take under the deed, and whose several interests had been specifically defined therein. Under these circumstances it was held that the beneficiaries after the execution of the will were as clearly determined as if they had been named in the deed, and that the trust would be enforced in favor of the beneficiaries thus appointed, even if the enjoyment of their estate was postponed until after the death of the grantor in the deed. In other words, it appearing in that case that the settlor, although reserving to himself the power to revoke the conveyance, had failed to exercise the power of revocation during his life, and that he had continued to recognize the provisions of the instrument creating the trust under which he not only reserved the right to name the beneficiaries by will but had actually exercised that power by naming the appointees to whom the trust estate should be transferred at his death, and, therefore, it was held that the beneficiaries were entitled to take and hold the title to the trust property as against one who claimed under a deed executed by the settlor subsequently to the date of the will. We do not doubt that a settlor may, as against everybody, except creditors,' make a voluntary conveyance of his property in trust for such lawful purposes and uses as to him may seem proper, reserving to himself the income during life, and providing in the deed that he shall have the right to exercise the appointment of beneficiaries by will, and when such a trust is recognized and acted upon during the life of the settlor and the power of appointment is exercised by will, the beneficiaries take the estate according to its terms, for the reason that it has been acted upon and carried out according to the intention of the settlor, and this is true even if the power of revocation is expressly reserved, in the deed, but has not been exercised by the settlor in his lifetime. Such a conveyance would be valid as between the parties, even if the enjoyment of the estate by the beneficiaries is postponed until after the death of the settlor. A very different quesfciqn.arises, however, when the rights of creditors intervene. |As against existing creditors such a conveyance would be fraudulent, and in order to make it validj.s to subsequent creditors, it must appear that the settlor has divested himself of all rights of ownership in, and control over, the property thus conveyed, reserving only to himself the right to receive the income during life, and it must also appear that no other act on his part is required to be done to complete the title in, or make a transfer of the ownership to, the beneficiaries who are entitled to take the same under the terms and conditions of the conveyance. Even in such a case the income would be considered assets subject to attachment by a creditor of the settlor. It is against public policy, and not consonant with natural justice and fair dealing, as between debtor and creditor, that a settlor should be permitted to play fast and loose with his property, in such a manner as to have the use of the income during life and the right of disposing of the principal by will at any subsequent time he chooses to exercise the power, thus giving him all of the substantial benefits arising from the ownership thereof while he has safely put his property beyond the reach of creditors.

In the present case the deed of trust declares its purpose to be the “ preserving of the property of the said Helen T. Nolan for her own proper support and maintenance.” It is expressly provided therein that the settlor may at any time before her death, by last will and testament, or any writing in the nature thereof, dispose of the balance of the trust funds remaining in the hands of the trustee, to and among such persons, and for such interests and in such proportions as she may order and direct. It is further provided that in the event of the settlor dying intestate the trustee shall pay the funds to such persons as would be entitled to receive the same under the intestate laws of Pennsylvania. The deed contains the further provision that if at any time during the lifetime of the settlor the trustee shall be of the opinion that it is to the best interests of the settlor to pay over and reconvey the estate to her, it shall have the right so to do. The learned court below in placing a construction on this instrument held that it was the primary object thereof to provide for the settlor herself by securing the income of the trust estate, and at the same time withdrawing it from the grasp of creditors. A person sui juris cannot as against creditors, either prior or subsequent, settle his property in trust for his own use for life and over to his appointees by will, and in default of such appointment to the use of his lawful heirs in fee: Maclcason’s Appeal, 42 Pa. 330. In that case it was expressly held that property so settled is assets in the hands of the trustee for the payment of debts, whether contracted prior or subsequent to the execution of the deed of trust. This case has never been overruled, and we see no reason why it should be disturbed nc

case at bar is in most respects on all fours with that one, the only difference being that the deed in the present case in express terms makes it irrevocable, while in that case there was no such provision. This is not material under the facts of the present case, because the legal effect of the whole instrument is to give the settlor the benefits of the property during life, the disposition of it after death, so that she enjoys all the benefits of ownership and shares none of the burdens and at the same time the property is beyond the rea^h of creditors. We do not see anything in this case to distinguish it in principle from Ghormley v. Smith, 139 Pa. 584; Stewart v. Madden, 153 Pa. 445; Hahn v. Hutchinson, 159 Pa. 133; Houseman v. Grossman, 177 Pa 453. Even as late as Holbrook’s Estate, 213 Pa. 93, the present chief justice, in discussing the general principle involved, said: “ In Pennsylvania a man may not settle his own property on himself so as to keep it out of the reach of his creditors, for that would lead directly to fraud.”

What has been said does not in any way disturb the rule in Potter v. Fidelity Insurance, etc., Company, 199 Pa. 360, wherein it was held that where a voluntary active trust, by express terms is made irrevocable, and there has been no failure of the purpose of the trust, and it is not shown that the deed was procured by fraud or imposition, or executed under a misapprehension of the facts or the law, the trust cannot be revoked at the instance of the settlor, but will be enforced in favor of the beneficiaries. That was a controversy between the settlor and the beneficiaries, and the rights of creditors were not considered. Even in that case it was said that one of the reasons for setting aside a voluntary settlement of this character was when it appeared that the design of the deed was to give the settlor full enjoyment of his property for life, with power of testamentary disposition, and at the same time protect it from his creditor~. This is exactly what the learned court below held the present deed to be, and we concur~in that conclusion.

Judgment affirmed.?


author: Mr. Justice Stewart,

text:
    Frech v. Lewis, Appellant.
    Contract-Sale-Delivery-Bale for cash
    Where the contract of sale provides for payment of the purchase price on delivery of the articles sold, and the seller delivers the goods but the buyer fails to pay, the right of property does not pass to the buyer with the possession, but remains with the seller, who may at his option reclaim the goods. The right to reclaim the goods, however, must follow the buyer's default as promptly as the situation of the parties and the circumstances of the case will allow.
    In such a case reliance upon a subsequent promise to pay that leads the seller to refrain from asserting his rights to retake the property, is in itself a waiver of the right, and makes absolute a delivery which in the first instance was conditional. The seller's only remedy is against the buyer as a debtor.
    Fraud and artifice practiced by the buyer may excuse delay in attempting a recovery of property after delivery, but not mistaken confidence reposed in the buyer's promises.
    Argued March 25, 1907.
    Appeal, No. 73, Jan. T., 1907, by defendant, from judgment of Superior Court. Oct. T., 1906, No. 5, affirming judgment of 0. P. No. 5, Phila. Co., Sept. Term, 1903, on verdict for plaintiff in case of Henry Frech v. G. Lambert Lewis.
    Before MITcHELL, 0. J., FELL, MESTHEZAT, POTTER and STEWART, JJ.
    Beversed.

      Appeal from Superior Court.
    The facts are stated in the opinion of the Supreme Court. See also 32 Pa. Superior Ct. 279.

      Error assigned was the judgment of the Superior Court.

      J. Howard Morrison and Theodore J. Grayson, with them William MoGeorge, Jr., for appellant.

      J. Fithian Tatem, with him James 8. Williams, for appellee.
    May 6, 1907:
   Opinion by

Mr. Justice Stewart,

The settled doctrine of our cases is to the effect, that where the contract of sale provides for payment of the purchase price on delivery of the articles sold, and the seller delivers the goods but the buyer fails to pay, the right of property does not pass to the buyer with the possession, but remains with the seller, who may at his option reclaim the goods. In some jurisdictions the right of property is held to pass with the delivery, unless at the time the right to retake is expressly declared by the seller. We have not gone so fart. Our cases proceed on the theory that until payment has been made, or waived, the contract remains executory, and that delivery in such case is not a completion of the contract, except as an intention to so regard it is expressly declared or can fairly be inferred from the circumstances attending. Possession, however, having passed, and the buyer by the act of the seller having been invested with the indicia-of ownership, the policy of'our law requires that this situation — -the possession in one and the right of property in another — shall continue no lon'gpf than is necessary to enable the seller to recover the goods with wAich he has parted. The law gives the seller the right in such case to reclaim his goods, but he must do so promptly, otherwise he will be held to have waived his right, and can only thereafter look to the buyer for the price. The question the present case suggests is — when does this inference of waiver arise ? Our authorities admit of but one answer: except when delayed by trick or artifice, the assertion of the right to reclaim the property must follow immediately upon the buyer’s default. This does not mean that the seller must eo instanti begin legal proceedings to recover the goods; but it does mean that the seller when he discovers that his delivery is not followed by payment as he had the right to expect, is at once put to his election whether he will waive the condition as to payment and allow the delivery to become absolute, or retake property, and that he is to allow no unnecessary delay in making his choice. The object of the law is not to multiply his remedies because of his disappointment. He may not continue to hold his right to the goods, and at the same time hold the buyer as his creditor; one or the other he must relinquish, and do it promptly, or the law will forfeit his right to elect. Continued acquiescence in the buyer’s possession of the goods will be taken as a choice on his part to regard the delivery as absolute, notwithstanding the buyer’s default. The policy of the law, in requiring promptitude in the assertion of continued ownership of the goods, could easily be vindicated were it necessary. It answers every purpose here to show that the law requires it. In Leedom v. Phillips, 1 Yeates, 527, it is said: “When the parties specially agree, it is obvious that the vendor may, by his contract, renounce the benefit of the conditions stipulated, and trust to the good faith of the vendee for a future performance on his part. If oue sells goods for cash, and the vendee takes them away without payment of the money, the vendor should immediately reclaim them by pursuing the party, and he may justify the retaking of them by force.” This was quoted approvingly in Bowen et al. v. Burk, 13 Pa. 146; and it was there added that “ where he (the seller) lies by, and makes no complaint in a reasonable time, he consents to the absolute transfer of the property, and the contract is consequently complete against all the world.” In Baekentoss v. Speicher, 31 Pa. 324, reference is made to the case last above cited; what we have quoted from it was there approved, and the necessity for an immediate reclamation of the goods was emphasized. It is there said: “ This is the principle that is decisive against the present plaintiff. A sale of goods for cash is, strictly speaking, a sale on condition. The contract is do ut des. The condition is more imperative than such as was in this case, but for that reason less easily waived; and yet if the vendor acquiesced in a possession obtained in disregard of the condition, he waives it; and though he may recover the price by action, he cannot recover the goods in specie. . . . When the plaintiff found his condition disregarded, he should have promptly reclaimed the goods.” Mackaness v. Long, 85 Pa. 158, is another recognition of the same doctrine, that unless reclamation of the property be made immediately the title passes to the buyer. These cases and others that might be cited, following the lead of Leedora, v. Phillips, 1 Yeates, 527, all hold that the duty is upon the seller if he would retain his right to the property to proceed promptly, and we know of no case in which a contrary doctrine is asserted. In some cases the expression “within a reasonable time ” is used where the right to reclaim is referred to ; but this expression suggests no departure from the rule as declared in Leedom v. Phillips, supra. By reasonable time is to be understood such promptitude as the situation of the parties and the circumstances of the case will allow. It never means an indulgence in unnecessary delay, or in a delay occasioned by the vain hope and fruitless effort to obtain the money from the defaulting buyer. When the delay is to be accounted for by the latter consideration, it is accepted as an acquiescence in the delivery and the acceptance of the buyer as a debtor.

Now for the faots of this case. The contract was that plaintiff was to furnish defendant with two carriages to be paid for on delivery. The first carriage was delivered September 4, 1903, through plaintiff’s son, who immediately demanded of the defendant payment for the same. Defendant’s response was : “ I will be over in a day or two to see your father, and if I do not, I will send him a check in the course of a day or two.” He failed to keep his promise; he neither went to see plaintiff, nor did he send the check. Nevertheless, three days after this the other wagon was delivered to him at the same place, while he was absent from home. A week or ten days thereafter the plaintiff demanded payment, and repeated the demand both personally and by letter time and time again, with no better result than to get a note from the defendant which he accepted conditionally, but which he returned because he was unable to get it discounted. Meanwhile defendant was using the carriages, as plaintiff must have known since he repaired one of them which had been injured in the using. While plaintiff was diligent and persistent in demanding payment, at no time did he demand a return of the carriages, or in any way assert his right to property in them. His effort was, as he himself testified, to coax the defendant into paying the price. Two months and a half elapsed before he began this action of replevin, which was his first assertion of continued ownership of the property. It was not only too late, but his conduct shows that during all this time he was dealing with the defendant as though the latter was his debtor. ■ His own explanation is that he delayed trusting to the promises of the defendant from time to time to pay the price of the carriages. The title to a chattel passes as fully after a conditional delivery, where possession is allowed to be retained, in consideration of a new promise to pay, as where delivery is preceded by actual payment. The plaintiff was not tricked into delivering the carriages to the defendant ; nor was his delay in asserting claim to the property in consequence of any fraud practiced. He reposed confidence in the promise of the defendant, and was disappointed. His disappointment does not restore to him the right of property with which he parted. The court below submitted it to the jury to determine whether plaintiff by his conduct had waived his- right to retake the carriages.. The jury found he had not, and gave the plaintiff a verdict for the property. On appeal to the Superior Court the judgment of the lower court was affirmed. The ground on which the affirmance rested is thus stated by the learned judge who delivered the opinion: “ It cannot be said as matter of law that the plaintiff’s conduct amounted to a waiver of his right. In view of the repeated promises of the defendant, the plaintiff might well have been misled and induced to postpone proceedings for the recovery of his property. His delay is evidence of a waiver, but it is not conclusive in view of the conduct of the defendant.” In this we cannot concur. The reasons for our dissent fully appear in what we have already said. Reliance upon a subsequent promise to pay that leads the seller to refrain from asserting his right to retake the property, is in itself a waiver of the right, and makes absolute a delivery which in the first instance was conditional. The right of plaintiff to recover back his property after be had delivered it resulted from the buyer’s failure to keep his first promise; his failure to keep subsequent promises to pay could neither prolong nor revive that right. What defendant did or did not do, is a matter that has no place in the inquiry; what the plaintiff did or failed to do, is the determining consideration. Fraud and artifice practiced by defendant may excuse delay in attempting a recovery of property after delivery, but not mistaken confidence reposed in defendant’s promises.

Judgment is reversed.


author: Mr. Chief Justice Mitchell,

text:
    Haspel v. O’Brien, Appellant.

      Statutes — Repeal—Re-enactment.
    Where a statute is repealed and its provisions are at the same time re-enacted by the repealing act, the effect is that the earlier statute is not in fact repealed, but its provisions continue in active operation, so that all the rights and liabilities incurred thereunder are preserved and may be enforced.

      Municipal liens — Mortgages—Priority of lien — Statutes—Repeal— Re-enactment — Acts of February 3, 1824, P. L. 18 and June 4, 1901, P. L. 364.
    Municipal claims for taxes, water rents, paving, etc., assessed and filed as liens of record after the passage of the Act of June 4, 1901, P. L. 364, have priority over mortgages made before that act, in the distribution of the proceeds of sheriff’s sales under the mortgages, where such proceeds are not sufficient to pay both liens and mortgages.
    While the Act of June 4, 1901, P. L. 364, in terms repeals the Act of February 3, 1824, P. L. 18, yet as the provisions of the act of 1824, giving priority to municipal liens are re-enacted in substantially identical terms in the later act, the law has not been changed by the act of June 4, 1901.
    The words in the act of 1901 “with which the said property may become charged, or for which it may become liable,” may properly be construed as referring to the dates of the sales thereafter to be made under the act rather than the date of the act itself.
    Argued March 27, 1907.
    Appeals, Nos. 57, 58, 59, 60, 61, 62, 68 and 70, by defendants, from judgment of Superior Court, Oct. T., 1906, Nos. 104, 226 and 229, affirming judgment of C. P. No. 1, Phila. Co., Dec. T., 1905, No. 1,214, and judgment of C. P. Del. Co. March T., 1905, No. 108, making absolute rule to pay over money in case of Lewis A. Haspel, Receiver of the United Building and Loan Association of Philadelphia, v. Daniel O’Brien, Mortgagor, Wilson H. Brown, Sheriff, and the City of Philadelphia, and the cases of Lewis A. Haskel, Receiver, v. May Ellen Robinson, Mortgagor, and the City of Philadelphia, and of Lydia Gibbons et al. v. I. Engle Cochran, Jr., et al.
    Before Mitchell, O. J., Eell, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Appeal from the Superior Court.
    The opinion of the Supreme Court states the case.

      Error assigned was the judgment of the Superior Court.

      John G-. Johnson, with him Mayne R. Longstreth, James Alcorn, John L. Kinsey, A. A. Cochran and Geo. M. Booth, for appellants.

      Wayne P. Rambo and Jos. H. HinJcson, with them Albert L. Lewis and Ormond Rambo, for appellee.
    May 6, 1907:
   Opinion by

Mr. Chief Justice Mitchell,

These cases present the same question, and were argued together. The contest is for priority of payment out of the proceeds of sheriff’s sales between mortgages made before June 4, 1901, and municipal claims for taxes, water rents, paving, etc., assessed and filed as liens of record after that date, where the sales were made on the mortgages, but the proceeds were not sufficient to ‘pay both. It turns • on the construction of the Act of June 4, 1901, P. L. 364.

By the Act of February 3, 1824, P. L. 18, which was in force until 1901, the taxes, etc., were entitled to be first paid. But the act of 1901 expressly repealed the act of 1824, while re-enacting in substantially identical terms its provisions as to priority of payment of liens out of the proceeds of sheriff’s, sales.

The act of 1901, sec. 2, after declaring that taxes shall be a “first lien ” on the property, provides that “such liens shall have priority to, and be fully paid and satisfied out of the proceeds of any judicial sale of said property before any other obligation, judgment, claim, lien or estate with which the said property may become charged, or for which it may become liable.”

Section 3 makes a similar provision in regard to municipal claims, except that they are only declared a lien, the word “ first ” being omitted.

The words, “ with which the said property may become charged, or for which it may become liable,” are relied upon to show that taxes, etc., are only given priority to mortgages, obligations, etc., created after the date of the act, and that their priority to obligations previous in date being only by virtue of the act of 1824 is lost by the repeal of that act.

It must of course be conceded that statutes are presumed to be prospective only and the phrase “ may become ” prima facie refers to the future. It is, however, a question of the legislative intent, and it is by no means certain that the future period meant to be referred to in this phrase is the date of the act rather than the dates of the sales thereafter to be made under it. So understood it would mean that taxes are to be paid before other obligations with which the property is charged or chargeable at the time of the sale or distribution. This view derives considerable force from the closeness with which the act of 1901 follows the language of the act of 1824 up to this point, and then makes a significant change. The corresponding section of the act of 1824 reads, “ and the said lien shall have priority to and shall be fully paid and satisfied before any recognizance, mortgage, judgment, debt, obligation or responsibility which the said real estate may become charged with or liable to, from and after the passing of this act.” The omission of the words “from and after the passing of this act” from the act of 1901 leads strongly to the inference that the date of the act was not the future time in the legislative mind when using the phrase “may become charged with.” And if the date of the act be excluded, then the only other time indicated is the time of the sale under which distribution is to be made. This, therefore, is the more reasonable construction.

But even if this were less clear than it is, all doubt would be resolved by a consideration of the entire act. There was good reason for the reference to its passage in the act of 1824 and the omission of such reference in the act of 1901. The two statutes had the same intent in regard to the priority of payment of tax liens, but they were passed under different circumstances and for a different purpose. The act of 1824 changed the existing law and gave tax liens a priority they had not previously possessed. A due regard for rights already acquired demanded that the new precedence given to the liens should be strictly prospective only. But the act of 1901 was not intended to make any change in the law in this regard. The precedence which it gave to tax liens they already possessed by the existing law of 1824, and the only purpose of the re-enactment was to prevent its destruction by the repeal of the previous act.

The express repeal of the act of 1824 was not for the purpose of changing the law, but in pursuance of a plan for simplifying the sources and facilitating the ascertainment of the statute law on the general subject of tax liens. The usual legislative phrase is that all acts and parts of acts inconsistent with the act passed are repealed. This is only ex majore cautela, for that would be the effect without such clause. But that phrase leaves open to question what acts are inconsistent. The express repeal saves all controversy on that subject. But the intention is the same, and when an act expressly repeals a former one and at the samé time re-enacts its exact provisions the intent is manifest that there shall be no change in the law. This is the general rule as shown by the numerous authorities cited by appellant, the effect of which is thus summed up in 26 Am. & Ency. of Law (2d ed.), 758, title “ Statutes,” IX, 3, c : “ Where a statute is repealed and its provisions are at the same time re-enacted by the repealing act, the effect according to the great weight of authority, is that the earlier statute is not in fact repealed, but its provisions continue in active operation, so that all the rights and liabilities incurred thereunder are preserved and may be enforced.”

This rule is particularly sound and applicable in the construction and interpretation of an act like that of 1901, which, is a revision and consolidation for clearness, certainty and convenience of all the prior statutes on the - subject, a partial codification to the purpose of which amendment or change was only incidental. This appears from the concluding sentence of the last clause: “ it being intended that this act shall furnish a complete and exclusive system in itself, so far as relates to the practice and procedure for the filing, collection and extent of tax and municipal claims, the right to file which accrued after the approval of this act.” The purpose and desirability of such revision are shown preceding the foregoing declaration of intent, in the enumeration by date and title and express repeal of 224 acts and parts of acts ranging from 1814 to 1899.

From 1824 there has been no time when the law on the subject has been different from what it is to-day, for the moment the act of 1824 was repealed by the act of 1901 eo instanti the former law was continued by the same act. The tax claims in the present case were entitled, therefore, to the established priority without regard to their date.

The judgments of the Superior Court and of the common pleas are reversed, and distribution directed to be made in accordance with this opinion.


text:
    Reese, Appellant, v. Philadelphia Trust, Safe Deposit & Insurance Company.

      Gift — Gift inter vivos — Intention—Delivery.
    To constitute a valid gift inter vivos two essential elements must combine, an intention to make the gift then and there, and such an actual constructive delivery at the same time to the donee as divests the donor of all dominion over the subject, and invests the donee therewith.
    An elderly woman accompanied by her nephew went to the vaults of a trust company, took out her box containing her securities, called in an officer of the company to whom she declared her purpose to make a gift of the securities to her nephew, asked the officer to witness the transaction, executed blank transfers prepared at that time, and thereupon placed the securities in a box rented by the nephew, surrendering her own box. The nephew about to go to a distant state appointed the aunt as his deputy to have access at all times to the box. Held, (1) that a valid gift of the securities is to be derived from the transaction; (2) that'the fact that the aunt subsequently exercised a certain control over the securities — except as otherwise explained — will be referred to her agency in connection therewith; (3) that even if it were otherwise, such fact could not be allowed to overcome the plain and necessary inference to be derived from the transaction itself, except as knowledge of it be traced to the donee, and such acquiescence on his part be shown as would warrant an inference that in the mutual understanding of the parties that by the transaction something less than an absolute gift was intended.
    Argued March 27,1907.
    Appeal, No. 382, Jan. T., 1906, by plaintiff, from decree of C. P. No. 5, Phila. Co., Sept. T., 1905, No. 1,270, dismissing bill in equity in case of William X. Reese v. The Philadelphia Trust, Safe Deposit & Insurance Co., Executors of the Will of Anna X. Pomeroy, deceased, et al.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart JJ.
    Reversed.
    Bill in equity to secure the transfer of securities.
    Martin, P. J., found the facts to be as follows:
    William X. Reese, the complainant, is the nephew of Anna X. Pomeroy, a widow without children of her own, who died August 25, 1905, between the age of sixty-five and seventy years. The relations of William X. Reese to his aunt were very affectionate. He was treated by her as a son from childhood. He and his sisters were her nearest relatives, and he was a member of her household.
    She kept securities belonging to her estate in a safe deposit box in the vault of the Philadelphia Trust Company. The plaintiff was designated by her upon the books of the company as a deputy to visit' the box in her absence.
    On August 1, 1904, Mrs. Pomeroy and her nephew went to the vault, her deposit box was taken into a room, and an officer of the company sent for by her. When he entered, Mrs. Pomeroy and Mr. Reese were seated at the table upon which the box stood open. Some of the securities were lying on the table, others remained in the box. She said she was giving Mr. Reese the box and its contents and that she wished the official to act as a witness. He informed her that powers of attorney should be executed to transfer registered securities. At her request a clerk was sent into the room with powers printed in blank to effect transfers. A power to transfer five seven per cent, first mortgage bonds of the Philadelphia & Reading Railroad Company, for $1,000 each, registered in the name of Anna K. Pomeroy, was executed by her and witnessed by the clerk. Powers were signed by her on the back of two certificates for three and twenty shares each of the capital stock of the Philadelphia & Reading Railroad Company, standing in her name upon the books of the company and duly witnessed; and powers upon the back of three certificates for three, four and thirty-one shares respectively of the capital stock of the Lehigh Coal & Navigation Company, were executed by her and witnessed in the same way.
    No transfer of these securities was actually made upon the books of the companies.
    On the same day the box in which they had been kept by her was surrendered, a new box rented from the trust company by "William K. Reese, and he delegated Mrs. Pomeroy as his deputy to have access to this box. She availed herself of the privilege upon several occasions, detached coupons from bonds, collected income and deposited the money in her individual account. During her absence from the city at a time ivhen Mr. Reese was residing in California she executed a letter of attorney authorizing the trust company to act for her. The money collected under this authority by the company was paid to her or deposited in her individual account. The securities were at this time still registered in her name and the trust company, acting by virtue of her authorization to it, collected the income accruing upon them. After her death William IC. Reese presented the certificates with the powers of attorney at the offices of the companies and demanded transfers into his own name, which were refused. A bill in equity was filed by him setting forth the facts, alleging a gift of the securities by Mrs. Pomeroy to him and praying for a mandatory injunction to compel the Philadelphia & Reading Railroad Company, the Lehigh Coal & Navigation Company and the Pennsylvania Railroad Company to transfer to him the shares of stock issued by them respectively, standing upon their books in the name of Anna K. Pomeroy; for a decree compelling the Philadelphia Trust, Safe Deposit and Insurance Company as executors of the will of Anna 3L Pomeroy, deceased, to execute as executors powers of attorney to effect a transfer of the securities to complainant and for a decree that the testimony taken in support of the allegations of the bill be made a matter of record and remain in perpetuara rei memoriam.
    Kate R. Tevis and Mary E. Baker, the sisters of William K. Reese, were allowed to intervene as parties in the suit. Answers were filed in which the former denied that Mrs. Pomeroy intended to make a gift of the securities to plaintiff, and the latter demanded proof of his title. The Philadelphia Trust, Safe Deposit and Insurance Company set out that they were executors of Mrs. Pomeroy’s will, stated in detail the circumstances attending the gift of the securities and submitted themselves to the court. The other defendants submitted 'themselves to the court in the premises.
    The auditing judge recommended a decree in favor of the plaintiff.
    Exceptions to the adjudication were sustained in an opinion by Ralston, J., and- a decree was entered dismissing the bill.

      Error assigned was the decree of the court.

      William W. Porter and John Q-. Johnson, for appellant.—
    The delivery of a bond, certificate of stock or note to the donee, with the intention of transferring to him the right of property, is sufficient to constitute a gift: Hani v. Insurance Co., 197 Pa. 276; Commonwealth v. Crompton, 137 Pa. 138; Madeira’s Appeal, 17 W. N. C. 202; Pryor v. Morgan, 170 Pa. 568; Wise’s Estate, 182 Pa. 168; Malone’s Estate, 8 W. N. C. 179; Mothes’s Estate, 29 Pa. Superior Ct. 462; Wendt’s Estate, 14 Pa. Superior Ct. 640; Bond v. Bunting, 78 Pa. 210; Riegel v. Wooley, 81* Pa. 227; Hess v. Brown, 111 Pa. 124; Funston v. Twining, 202 Pa. 88; Parker’s Estate, 34 W. N. C. 376.

      Henry Pudd, with him Peter Boyd, Henry B. Hodge, and B. L. Ashhurst, for the Philadelphia Trust Co., appellee.
    To make valid gifts there must have been, not only an intention to make them, but to do so at the time and not in the future, attended by an actual or constructive delivery to the donees, by which the donor released all dominion over the funds and invested the donees with the full title to and control over the same: Basket v. Hassell, 107 U. S. 602 (2 Sup. Ct. Repr. 415); Com. v. Crompton, 137 Pa. 138; Clapper v. Frederick, 199 Pa. 609.
    But gifts inter vivos have no reference to the future. They take immediate and absolute effect. A gift to take effect in futuro is void: "Withers v. Weaver, 10 Pa. 391; Flanagan v. Nash, 185 Pa. 41; Williams’s App., 106 Pa. 116; Scott v. Lauman, 104 Pa. 593; Stockham’s Estate, 19 Pa. C. C. Rep. 369; Tygard v. McComb, 54 Mo. App. 85; Hafer v. McKelvey, 23 Pa. Superior Ct. 202.

      Henry Budd, with him Peter Boyd, for Kate R. Tevis and Mary E. Baker, appellees.
    May 6, 1907:
   Opinion by

Mr. Justice Stewart,

If the legal effect and consequence of the transaction between Mrs. Pomeroy and her nephew, William K. Reese, the appellant, are at all obscure, it is not because the transaction itself in any of its features is uncertain or equivocal. It is claimed that what subsequently occurred between the parties show's a purpose in the mind of Mrs. Pomeroy the very opposite of that indicated by the transaction, and a corresponding understanding by the nephew. The learned judge before whom the case was heard derived from the transaction a valid and effective gift of the securities in question. He was overruled in this by the court in banc, and this appeal results. The facts are undisputed, and may be briefly stated.

Mrs. Anna K. Pomeroy was a widow of advanced age and childless. Her nearest kindred were the appellant, a nephew and his three sisters, two of whom are among the appellees. For the appellant, who had resided with her from childhood, she entertained special affection, treating him as a son. On August 1, 1904, the aunt and nephew together went to the Philadelphia Trust, Safe Deposit & Insurance Company, where the former had a rented safe or box in which she kept certain securities. While they were together in the room of the directors of the company she took out the box, and having placed it on a table called into the room Mr. Scholey, an officer of the company. She told Mr. Scholey that she was giving to her nephew the box and contents, and that she wished him to witness the gift. She was then seated at the table where the box was; some of the securities were still in the box, while others were out upon the table. Mr. Scholey examined the securities sufficiently to see their general character, and told Mrs. Pomeroy that inasmuch as some -were registered and some were coupon bonds, something more was necessary to complete the gift, and inquired whether he should send someone in to prepare powers of attorney for her to execute. He accordingly sent into the room Mr. Pierce, a clerk in the bank, with blank powers of attorney which were there signed by Mrs. Pomeroy and witnessed by Pierce. Among the securities were the certificates and bonds which are the subject of the present controversy. These were (1) two stock certificates issued by the Pennsylvania Railroad Company, one for twenty and one for three shares ; (2) three stock certificates issued by the Lehigh Coal & Navigation Company, one for three, one for four and one for thirty-one shares, and (3) five mortgaged bonds of the Philadelphia & Reading Railroad Company, each of the denomination of $1,000. Assignments of these several securities in blank, with like blank powers of attorney empowering the attorney to sell, assign and transfer the same for assignee’s use, were then and there signed by Mrs. Pomeroy and duly attested. These assignments were in the usual form, and had the effect to make the securities marketable without anything further. This being done, the box from which the securities had been produced, being Mrs. Pomeroy’s, was surrendered, and the securities were placed in a box or safe that had been that day rented by the nephew. The latter being about to return -to California, as part of the same transaction, constituted in writing on the records of the trust company Mrs. Pomeroy, as his deputy, "with authority expressed as follows : “ To have access to my safe at all times, with the same powers that I could have if personally present.” This ended the transaction. None of the securities were transferred on the books of the company, but with the powers of attorney executed as above Reese was in position to have this done at any time before the death of Mrs. Pomeroy, which occurred August 25, 1905. After Mrs. Pomeroy’s death, appellant presented the above-mentioned securities, with the powers of attorney attached, to the several companies that had issued them, and requested transfers to be made. This was declined because of Mrs. Pomeroy’s death.- He then demanded of the executors that they execute new transfers. This demand being refused, he filed the bill in the present proceeding to require the executors to make the necessary transfers. The proceeding resulted in the dismissal of plaintiff’s bill. This brief statement discloses the one question in the case — can a valid, effective, irrevocable gilt of these particular securities to the nephew be derived from what took place between Mrs. Pomeroy and the appellant on the occasion referred to ?

To constitute a valid gift inter vivos two essential elements must combine: an intention to make the gift then and there, and such an actual or constructive delivery at the same time to the donee as divests the donor of all dominion over the subject, and invests the donee therewith. We do not understand that the sufficiency of the delivery of these securities to the donee, if an immediate and irrevocable gift was intended, is questioned. They were placed, if not by the hands of the donor, by one she directed, in the box of the donee, which, notwithstanding the donor thereafter had access to it, was the donee’s own exclusive property for the time being, which neither the donor nor anyone else could interfere with excépt as allowed by him. This delivery was quite as unequivocal and pronounced as it would have been had the securities been placed in the donee’s hand or pocket, and therefore just as effective. With respect to the donor’s intention as to the kind and measure of the gift she intended to make, if regard be had to her previous expression of purpose, to what passed between the parties, and what occurred at the time of the inaking of the gift, and to these alone, there can be but one conclusion. What was there done, whatever its effect, was in fulfillment of a purpose the donor had previously expressed to several of her intimate friends. She had again and again avowed her purpose to turn over to her nephew the securities in her box. Her purpose as expressed to Mr. Scholey, whom she had called in to witness the transaction, was to make a gift to her nephew of the contents of the box. The testimony of this witness was: “She said she was giving Mr. Reese the box and its contents, and would like me to act as a witness to the gift.” In nothing that was said or done was there a suggestion of any qualification or restriction with respect to the gift. Wha.t therefore occurred on the occasion while both parties were present, is not only consistent with a purpose to make an immediate and irrevocable gift, but inconsistent with any other. "When her attention was called to what was necessary to make the gift effective, that is to say, powers of attorney to transfer the securities, she immediately executed them. The surrender of her own box to the trust company, and the placing of the securities made marketable by her blank transfers in the box rented by the nephew, which immediately followed, completed the transaction. Confining the inquiry to the immediate occurrence, can there be any question as to the legal effect of the transaction? There is present in the case a clearly expressed purpose to make a present gift, followed by a sufficient delivery. Thus every requirement is met, and were we to stop the inquiry here, the gift would have to be sustained. It was because the court below extended the inquiry, and allowed what subsequently occurred to overcome the plain and obvious intendment of what was said and done when the gift was made, that a conclusion adverse to the plaintiff was reached. The evidence on this branch of the case was admitted for the purpose of showing that the parties themselves understood the transaction as meaning something different from that indicated by the plain and natural meaning of their words and acts at the time. It is perfectly competent to show this, since the effort of the law always is to develop and give effect to the real purpose of the parties; but too great latitude was here allowed, and evidence was introduced which in no aspect can be considered as indicating a common and mutual understanding and purpose, but simply a purpose by the donor inconsistent with the facts of the transaction. It is never permitted a donor to impeach his gift; therefore what was said or done by Mrs. Pomeroy, unassociated with her donee and unassented to by him, is wholly irrelevant to the issue and cannot be considered. The court below placed much emphasis on the fact that Mrs. Pomeroy had at a later period inquired of an officer of the bank whether the power of attorney she had given “ would put matters in proper shape so that if anything should happen to her Mr. Reese could transfer the securities.” This inquiry may reflect some light on her understanding of the effect of the original transaction; but on its face the transaction was an executed gift in the donee, and it is wholly immaterial, limiting this inquiry to what is pertinent to the issue, what either thought in regard to it, except as the other is shown to have had the same understanding. The only relevant evidence on this branch of the case was that which related to the conduct of the parties with reference to the subject-matter. True, this was confined principally to the acts of Mrs. Pomeroy, but since these extended to at least a qualified control of the securities, and the actual conversion of a part, the knowledge and assent of the donee might be inferred in connection therewith. Immediately following the transfer of the securities the nephew returned to California. Mrs. Pomeroy, who had been deputized by him to have access to the safe, remained until November 10 of the same year, when she too went to California. Before removing she took from the safe Reading bonds to the amount of $3,000 and sold them. She also collected certain coupons, and left authority with the trust company to collect others as they matured, the proceeds to be credited on her account. Alter she had removed to California, she instructed the company to subscribe for an allotment of four shares of Lehigh Coal & Navigation stock. On her return to Philadelphia in June, 1905, the authority she had given to the trust company was canceled. To allow this evidence the effect contended for, too much would have to be supplied; as it stands, it is wholly inadequate to the purpose. The selling of the $3,000 of bonds may very well have been within the implied power of the deputization, or in consequence of direct instructions from the principal. The burden in such case is upon the party setting up the fact relied upon to overcome the natural and obvious meaning of the transaction. This burden was not discharged so long as what Mrs. Pomeroy did with the proceeds of the sale of the bonds was left unexplained. She was a deputy in custody of the securities, and the presumption is that if she converted any of them, it was in the course of her agency, and that she fully accounted for them. The law will not presume the contrary. As much may be said with respect to the coupons and dividends collected by her and carried to her credit in the bank. Giving these facts the utmost significance that can be claimed for them by the appellees, they are at least equivocal; if they may be regarded as indicating a continued ownership of the securities in Mrs. Pomeroy, with quite equal reason they may be referred to the agency she was invested. To allow such uncertain and ambiguous circumstances to defeat what the conduct of the parties in connection with the immediate transaction shows to have been intended as an absolute gift, is to misapprehend the true force and significance of the evidence.

The decree of the court below is reversed; the plaintiff’s bill is reinstated, and it is now ordered that a decree be entered directing an injunction mandatory in form to the Philadelphia Trust, Safe Deposit & Insurance Company, executor of the will of Anna E. Pomeroy, deceased, requiring it to sign as such executor such powers of attorney as may be required to transfer to William E. Reese the said recited securities. The cost of this proceeding to be paid by the executor of the will of Anna E. Pomeroy, deceased.


author: Per Curiam,

text:
    Shellenberger v. Altoona & Philipsburg Connecting Railroad Company, Appellant.

      Railroads — Sale—Mortgage—Notice—Discretion of court.

    The appellate court will not review the discretion of the lower court in confirming a sale under a railroad company's mortgage, where the evidence is inadequate to sustain the objections that sufficient time was not given to pay the debt, that the advertisement was insufficient, and that the price was inadequate.
    Argued April 22, 1907.
    Appeals, Nos. 240 and 297, Jan. T., 1906, by defendants, from decree of C. P. Clearfield Co., Sept. T., 1903, No. 5, on bill in equity in case of W. L. Shellenberger et al. v. Altoona & Philipsburg Connecting Railroad Company et al.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity to foreclose a railroad mortgage.
    The opinion of the Supreme Court states the case.

      Error assigned was decree confirming sale.

      Harry Boulton, of Gordon cfi Boulton, and Thomas Greevy, with, them 8. V. Wilson, for appellants.

      I). L. Krebs, with him W. 8. Hammond, J. B. McKnally and A. L. Cole, for appellee.
    May 6, 1907:
   Per Curiam,

These appeals may be considered together. They are from decrees made in a proceeding by bill to foreclose a mortgage given by a railroad company to secure an issue of bonds. The appeal from the first decree is on the ground that sufficient time was not allowed the defendant to make payment. The order to pay was made on March 3, 1906, and the defendants were given fifty-seven days within which to pay and the time was afterwards extended to a period of nearly six months. The objections to the confirmation of the sale presented by the second appeal are that the advertisement was insufficient and that the price was inadequate. Neither objection was sustained by proofs that should have moved the court to set aside the sale. The sale was made in accordance with the terms of the mortgage and of it all parties in interest had due notice. The offer to increase the bid ten per cent., even if it had been made by responsible parties, would not have been entitled to serious consideration, as the increased amount would not have equaled the debt for which the property was sold and there was no other property of the railroad company from the sale of which the bondholders could have realized anything. Nothing short of a clear abuse of discretion as to these matters would be ground for a reversal of the decrees. As to all of them the discretion of the court was properly exercised.

The decrees are affirmed at the cost of the appellants.


text:
    Keystone Brewing Company, Appellant, v. Canavan.

      Appeals — Final judgment — Interlocutory order — Quashing appeal.

    An order in the following form, “judgment is directed non obstante veredicto in favor of the garnishee,” is not a final judgment, and an appeal taken from it will be quashed.
    Motion to quash appeal.
    From the record it appeared that the order from which the appeal was taken was as follows :
    “ January 21, 1907, by opinion filed, judgment directed non obstante veredicto in favor of Thomas Forestal, the garnishee.
    “ G. L. Halsey, Judge,
    “ J. D. 45.” '
    The garnishee moved to quash the appeal, citing Com. ex rel. v. Mitchell, 80 Pa. 57, and Watkins v. Hughes, 206 Pa. 526.
    April 16, 1907 :
   Per Curiam,

Appeal quashed.


text:
    Mason, Appellant v. Linn.

      Appeals — Equity—Brief statement of errors — Rule 92 of equity rules.

    An appeal from a decree in a suit in equity will be quashed, where the appellant has not filed in the court below with notice of appeal, a brief statement of the errors alleged.
    Motion to quash appeal in case of Henry C. Mason et al. v. C. H. Linn et al., Supervisors of Hanover Township, and Thomas Wilson, doing business as Thomas Wilson & Co., and Bolton G. Coon & Co.
    The motion was in the following form:
    Now, April 15, 1907. John M. Garman, attorney for Thomas Wilson, doing business as Thomas Wilson & Co., and Bolton G. Coon & Co., defendants in above-stated cause, moves to quash the appeal as to said defendants because the appellants did not file in the court below, with their notice of appeal, a brief statement of the errors they allege to have been made by the order or decree appealed from or the findings in which it rests, as required by rule 92 of the equity rules.
    April 15, 1907 :
   Per Curiam,

Motion granted and appeal quashed.


text:
    Dulles’s Estate.

      Wills — Trusts and trustees — Charitable use — Discretion of executor.

    Testatrix directed her executors hi default of written directions by her, to distribute a fund “ among such religious charitable and benevolent purposes and objects or institutions as in their discretion shall be best and proper.” Held, that a valid trust was created.
    The use of the word “benevolent” in such a will in connection with the words “charitable and religious” does not render the trust so indefinite that it becomes inoperative with the result of an intestacy as to the residuary estate.
    Indefiniteness is not a valid objection to a trust so long as there is a tribunal authorized to define it.
    The owner of property may do as he pleases with it provided the disposition be not to unlawful purposes, and what he may do himself he may do by agent while living, or by executor after death.
    Argued Jan. 18, 1907.
    Appeal, No. 243, Jan. T., 1906, by the Real Estate Trust Company of Philadelphia et al., Executors of the will of Mary C. Dulles, deceased, from decree of O. C. Phila. Co., dismissing exceptions to adjudication in Estate of Mary C. Dulles, deceased.
    Before Mitchell, C. J., Eell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Exceptions to adjudication. Before Ashman, J.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was in dismissing exceptions to adjudication.

      Joseph deF. Junkm and George II Ecurle, Jr., for appellant.
    A. will must be construed so as to avoid a partial intestacy unless the contrary be unavoidable : Yance’s Estate, 209 Pa. 561.
    As to charitable uses in this state, the test is not -whether the use is indefinite and uncertain as to its objects, but whether discretionary power is vested in some one over its application to those objects : Witman v. Lex, 17 S. & R. 88; Domestic & Foreign Missionary Society’s Appeal, 30 Pa. 425; Cresson’s Appeal, 30 Pa. 437; Evangelical Assn’s Appeal, 35 Pa. 316; Zeisweiss v. James, 63 Pa. 465; Mann v. Mullin, 84 Pa. 297.
    Any decisions of England, or of other states, contrary to this doctrine, are based upon different principles, to wit: that the courts are to supervise and carry out the testator’s bounty, and that they will sustain donations for public charities only within the statute of Elizabeth.
    The -steady trend of the decisions in this state has been to broaden the English doctrine, and uphold all bequests, both public and private, if some one is designated to make selection : Beck’s Appeal, 116 Pa. 547; McCurdy’s Appeal, 124 Pa. 99; Murphy’s Estate, 184 Pa. 310; Stevens’s Estate, 200 Pa. 318; Schleicher’s Estate, 201 Pa. 612.

      Samuel Oustine Thompson, for appellees.
    A gift for an indefinite purpose, which is not charitable, within the meaning of the statute of Elizabeth, will not be supported : Morice v. Bishop of Durham, 9 Ves. 399; Tudor on Charitable Trusts, 36; Ommanney v. Butcher, 1 Turner & Russell, 263; James v. Allen, 3 Merivale, 17; Thomson v. Norris, 20 N. J. Eq. 489; Atty. General v. Haberdashers’ Co., 1 Mylne & Keen, 420; William v. Kershaw, 5 Clark & Fin. 111; Livesey v. Jones, 55 N. J. Eq. 204 (35 Atl. Repr. 1064); Nichols v. Allen, 130 Mass. 211; Mason v. Perry, 22 R. I. 475 (48 Atl. Repr. 671); Wheeler v. Smith, 50 U. S. 55; Kain v. Gibboney, 101 U. S. 362.
    May 13, 1907:
   Opinion by

Mr. Chief Justice Mitchell,

The fundamental law of Pennsylvania in regard to ‘ property, which ought not to require restatement as often as it does, is that the owner may do as he pleases with it provided the disposition be not to unlawful purposes, and what he may do himself he may do by agent while living, or by executor after death. This principle disposes of this case.

Miss Dulles, living, could have taken her securities out of her strong box, and handed them to the appellants with directions, even verbal, to distribute them in their discretion among religious, charitable and benevolent objects or institutions. That disposition would have been valid and unassailable. There is no good reason why Miss Dulles, dead, should not make the same disposition of her property by testament.

The language of her will in regard to the residue of her estate is: “ I do hereby direct my said executors to pay over, appropriate, dispose of and distribute the same or the proceeds arising from the sale thereof to and among such religious charitable and benevolent purposes and objects or persons or institutions as I shall specify in a writing to be prepared and signed by me for that purpose; or in default of such written direction left by me, then ánd in such case I do hereby give and grant unto my said executors and the survivor of them full and unlimited power and authority to pay over, appropriate, dispose of and distribute the said rest, residue and remainder of my estate to and among such religious charitable and benevolent purposes and objects or institutions as in their discretion shall be best and proper, as I have full confidence in the judgment, ability, integrity and discretion of my said executors in the premises; and I hereby release them from liability to account for the same.”

If the testatrix had made the writing referred to and named the objects, persons or institutions she desired should take, there could be no question of the validity of the bequests whether the courts or anyone else thought the objects were religious, charitable or benevolent or not. In naming the legatees she would have defined the terms religious, charitable and benevolent for the purposes of her will, and it was within her right' to do so. She did not make the written directions, however, and therefore the alternative provision of her will became operative. The discretion which was hers to exercise she chose to delegate to her executors. It was her right to do so, and so long as their discretion is not legally abused its exercise is as valid as if it was expressly her own.

It is argued that the conclusion is altered by the facts that the will-created a trust and that the use of the word benevolent made the trust too indefinite to be enforced.

The injustice as well as the illogical character of such argument is apparent. However doubtful what the testatrix did in fact want may seem, it is certain she did not want her estate to pass under the intestate law. To prevent that she appointed executors presumably familiar with her wishes, and invested them with ample discretion to distribute the estate “having full confidence in (their) judgment, ability, integrity and discretion.” Every element of certainty is potentially here, and yet for fear the executors thus informed and thus trusted might ignorantly or intentionally fail to do what she wanted done the court is asked to step in and do the one thing that it is absolutely certain she'did not want, pass the estate under the intestate laws.

It is manifest that the testatrix intended distribution among others than the executors, and that the gift to them was in a fiduciary capacity. There was, therefore, a trust. But that does not interfere "with the discretion of the trustees, except to limit their powers to the purposes intended, and to enable the courts to prevent a plain diversion of the gift which would be a fraud on the trust. It is said that the Avord benevolent is not definite enough for the court to enforce. But it is not necessary .that it should be. The definition and application of that Avord are not for the courts, but for the executors. The only authority of the court is to prevent a manifest diversion to a purpose clearly outside of the class prescribed. So long as the executors are exercising their right of selection in good faith the right to do so is in them by the express words of the testatrix’s will.

The word benevolent presents no insuperable difficulties even if it had to be defined. Though it covers a Avide field its essential and substantial meaning is familiar and easily grasped. It is little if any more indefinite than the word charitable in its varied legal senses. In many cases they haAre been held to be synonymous. It might well be so held here, though in its general sense it is a word of Avider meaning. But whether the meaning is the same or not is immaterial. In either case it is a trust, and in a trust indefiniteness is not a valid objection so long as there is a tribunal competent to define it.

It is not worth while to discuss the numerous highly refined and technical distinctions in the English cases and those of some other states. They are mostly founded on the statute of 43 Elizabeth which is not in force in Pennsylvania, but whose principles have been adopted as part of the common law of the state, broadened and shorn of technicalities in obedience to the spirit of modern equity. Our own cases have settled the principles sufficiently for all present purposes.

■In Pickering v. Shotwell, 10 Pa. 23, a bequest of a sum to “ go to and be applied, under the direction of the Monthly Meeting of Friends of Philadelphia for the Northern District, as a fund for the distribution of good books among poor people in the back part of Pennsylvania, or to the support of an institution, or free school in or near Philadelphia,” was held not too uncertain, since the monthly meeting had the option of reducing it to a certainty. And in Mann v. Mullin, 84 Pa. 297, a trust to be applied to the education df poor young men of Bedford County that may be deemed by the court worthy, and intend preparing themselves for the ministry without regard to religious sect, being Christians as a matter of course,” was held valid. After these two cases it would be difficult to defeat any trust on the ground of uncertainty so long as there is a competent person or tribunal to 'define and make certain the objects intended. In the last named case Sharswood, J., said: “ The foundation upon which the doctrine of charitable uses rests in this state is firmly settled. While the statute of 43 Elizabeth is not in force, the principles which the English chancery has adopted on the subject obtain here, not by virtue of the statute, but as part of our common law. The fact is that those principles were recognized and applied in England before the statute, which onty introduced a new remedy. Hence trusts for charities with us have always been upheld and enforced, no matter how uncertain were the objects, and though the effect evidently was to create a perpetuity. These have never been allowed as objections to their validity.”

In Domestic and Foreign Missionary Society’s Appeal, 30 Pa. 425 (435) it is said by Strong, J.: “ The general rule may be stated thus: — in the case of a will making a charitable bequest, it is immaterial how vague, indefinite and uncertain the objects of the testator’s bounty may be, provided there is a discretionary power vested in some one over its application to those objects.”

And see alsoKinike’s Estate, 155 Pa. 101; Murphy’s Estate, 184 Pa. 310; and Schleicher’s Estate, 201 Pa. 612.

In some of the cases it may be conceded there is a tendency to dwell on the distinction between trusts for charitable and those for benevolent purposes, and the learned court below gave weight to that distinction in the present case. But it is not a safe basis for adjudication. It is said that charities are under the special care and protection of chancery, but so are trusts in general. No absolute or exhaustive definition of either charity or benevolence in its legal sense has ever been formulated, and the distinction between them is shadowy and evanescent. The education of poor and worthy young men (Mann v. Mullin, 84 Pa. 297), the planting of shade trees or endowing a professorship of fine arts (Oresson’s Appeal, 30 Pa. 437), and the distribution of “ good books ” among poor people in the back part of Pennsylvania (Pickering v. Shotwell, 10 Pa. 23), might certainly be classed under either term with equal propriety. In this last case Gibson, O. J., said of the provision for good books that in Pennsylvania the “ bequest would not be the less charitable though the books were scientific.” And he might have said that the trust would be equally valid whether for religious, charitable, benévolent, artistic, literary, patriotic, scientific or other lawful purpose. Upon the question of want of certainty or definiteness the distinction between the purposes of any lawful trusts is not part of the ratio decidendi. The decisions rest on the maxim id certum est quod certum reddi potest, and so long as there is a tribunal authorized, either expressly or by reasonable implication, to define and make certain the objects, the trust is not void for uncertainty. It is not necessary that the courts unaided should be able to define the specific objects. It is sufficient if the general purpose is made clear enough for the court to perceive and prevent such a diversion as would be a fraud on the testator’s intent. As said by Strong, J., in Domestic and Foreign Missionary Society’s Appeal, 30 Pa. 425, already cited: “ A court can know the class, but individual designation is left to the trustee, who is the dispenser of the bounty and who is under obligation to dispense within the class.”

The practical questions, therefore, in such cases are, first, is the testator’s general intent ascertainable; and, second,is there any tribunal provided to ascertain the specific objects to ’which such intent is to be applied ? If so the trust is not void for uncertainty, whether it is for a technical charity or not.

The testatrix’s will in this case complies with both these conditions, and is entitled to be carried out according to its terms.

The decree is reversed and the fund directed to be awarded to the executors for application in accordance with the will.


author: Mr. Justice Brown,

text:
    Commonwealth ex rel. v. Rowe, Appellant.

      School law — Vaccination—School directors — Mandamus—Act of June' 18,1895, P. L. 203.
    The Act of June 18, 1895, P. L. 203, imposes no duty upon school directors to exclude from a school a child who has failed to submit a certificate of vaccination signed by a physician, and mandamus cannot issue against them to compel them to exclude such a child. The duty is imposed by the act upon superintendents, principals, teachers and other persons in immediate charge of the schools.
    Argued Feb. 18, 1907.
    Appeal, No. 326, Jan. T., 1906, by defendant, from order of C. P. Franklin Co., Feb. T., 1906, No. 105, awarding an injunction in case of Com. ex rel., Hampton L. Carson, Attorney General, v. A. H. Rowe et al., School Directors of the Waynesboro School District.
    Before Mitchell, C. J., Fell, Brown, Potter and Stewart, JJ.
    Reversed.
    Petition for mandamus.
    The opinion of the Supreme Court states the case.

      Error assigned was order awarding a mandamus.

      O. O. Bowers, with him Sharpe <& Elder for appellants.

      Frank M. Eastman, with him Walter & Gillam and M. Hampton Todd, attorney general, for appellee.

      May 13, 1907 :
   Opinion by

Mr. Justice Brown,

The mandamus in this case went out against the school directors of the Waynesboro school district to compel them to exclude from one of its schools a child who had failed to submit a certificate signed by a physician, setting forth that she had been successfully vaccinated, or that she had previously had smallpox. Such a certificate is required by the twelfth section of the Act of June 18, 1895, P. L. 203, as a condition of a child’s right to be admitted to the public schools. On this appeal the appellants raise two questions : 1. Does the twelfth section of the act of June 18, 1895, impose any duty upon school directors ? 2. Can mandamus issue against them to compel them to exclude a scholar from a public school until such scholar has furnished the certificate called for in the twelfth section of the act ?

In the petition of the attorney general for the writ there is no allegation of a failure or refusal by the appellants to perform any duty imposed upon them by the general school laws of the commonwealth. The duty which it is alleged they have neglected is specifically stated to be that of enforcing the provisions of the twelfth section of the act of June 18, 1895, and the prayer is for a writ to compel them to perform it. That section is as follows : “ All principals or other persons in charge of schools as aforesaid are hereby required to refuse the admission of any child to the schools under their charge or supervision, except upon a certificate signed by a physician, setting forth that such child has been successfully vaccinated, or that it has previously had smallpox.” If the duty is imposed upon the appellants as school directors to exclude from one of the public schools under their direction a child not having the certificate required by the foregoing section, the writ of peremptory mandamus properly went out; but if, in the act invoked, no duty appears to be imposed upon them, the writ should have been denied.

The act of 1895 is “for the more effectual protection of the public health in the several municipalities of this commonwealth.” It is composed of twenty-one sections, but only the eleventh, twelfth, thirteenth, fourteenth and twenty-first relate to schools. By the eleventh section no child belonging to or residing with a family in whose house any person may be suffering from smallpox shall be permitted to attend any public, private, parochial, Sunday or other school, and all school principals, Sunday school superintendents, or other persons in charge of such schools,” are required to exclude from them, for a fixed period, children belonging to or residing with a family living in a house in which any person may be suffering from said disease. By the twelfth section “ all principals or other persons in charge of schools as aforesaid” are required to exclude children not presenting the certificate provided for in it. By “ all principals or other persons in charge of schools as aforesaid” the legislature meant principals or other persons in charge of the schools designated in the preceding section, and the twelfth section simply imposes upon them an additional duty, which is to exclude from a school in their charge a child coming even from a home in which there may have been no smallpox, unless the proper certificate is produced. In neither the eleventh or twelfth section of the act is any reference made to school directors. They are not named in any section of the act. The duty to exclude children from infected homes and those not presenting the certificate of immunity from smallpox, is placed upon the principals of the schools, or other persons in charge of them. They are the ones specifically designated in the eleventh section, and in the twelfth must be understood as being the same persons upon whom duties had been imposed in the eleventh. Their natural meaning must be given to the words, by other persons in charge of schools,” and it is that the legislature intended that those having the active charge of them should be charged with the duty of excluding children, and not the directors, who have a supervisory charge of schools. By the Act of May 8, 1851, P. L. 617, directors are to “ exercise a general supervision over the schools of their respective districts.” They are not in charge of the pupils who make up the schools. Such charge is committed to the teachers— to principals and other persons assisting them.

Prom other portions of the act it is clear that the legislature did not intend by the twelfth section to impose any duty on directors. In the first ten sections relating to certain duties to be performed in the interest of public health nothing is left to implication as to who are to perform them, and who shall be responsible for failure to perform them. Coming to the eleventh and twelfth sections, it is not reasonable to hold that if the legislature intended to impose by them any duties upon directors it would have failed to name these officers. In the preceding sections physicians, boards of health, heads of families, sextons and janitors are specifically charged with duties, and as specifically made 'responsible for their nonperformance. With these persons all so specifically named, why should directors have been omitted if the legislature' intended to include them among the persons to be charged with the discharge of duties relating to health ? Directors surely are as important as school principals or superintendents, and would as certainly have been named as they are named, if the legislature intended to impose any duties upon them.

From the thirteenth, fourteenth and twenty-first sections it appears still more clearly that school directors are not “ other persons ” charged with the duty prescribed in the eleventh section. The thirteenth section requires the health authorities of a municipality to furnish to principals or other persons in charge of schools, and to physicians, the necessary certificates or blanks for the uses and purposes set forth and required in sections eleven and twelve, but there is no direction that the same shall be furnished to school directors ; and, by the fourteenth section, it is made the duty of the health authorities to furnish daily, by mail or otherwise, to principals or other persons in charge of schools, a printed or written bulletin containing the name, location and disease of all persons suffering from cholera, smallpox, etc., with a proviso that said authorities may, in lieu of the daily bulletin, give a notice to the school or schools attended by the children in whose home or residence any of the diseases mentioned exist. Here is a distinct proviso that the daily notice may be given to the school or schools attended by the children in whose home or residence diseases may exist, and by school or schools the legislature certainly meant the places where the pupils are attending, and the daily notice to be given there can be given only to teachers, for directors are not daily present at schools. But, in the twenty-first section, it conclusively appears that school directors do not have any duties imposed upon them by the act, for that section, in prescribing a punishment for a neglect of the duties prescribed by the act, imposes the penalty upon “ any physician, undertaker, principal of a school, superintendent of a Sunday school, sexton, janitor, head of a family, or any other person or persons named in this act.” School directors are not named in the act, and if they were to be charged with the duty that the court below held was imposed upon them, it is not conceivable that the legislature would have omitted them from the penalties imposed for its violation.

The child in this case ought to have been excluded from the school. The duty of doing so was imposed upon the principal or teacher in charge of the school, and he is not only culpable for neglecting to perform it, but has incurred the penalty prescribed by the last section of the act. The directors ought to have seen that their employee having charge of the school obeyed the injunction of the statute, and, if he did not, it would have been proper for them to exclude the child. They had the right to do so before the passage of the act of 1895: Duffield v. Williamsport School District, 162 Pa. 476, and since its passage they ought not to have hesitated in seeing that it was observed by the teachers. But that is not the question before us. We are simply to determine whether a ministerial duty was imposed upon the appellants by the act of 1895, which they have neglected to perform. No duty can be there found, and, in the absence of it, there was nothing for the court to command them to do under the petition presented.

The judgment below is reversed, and judgment is entered for the respondents on their demurrer.