text:
    Hostetter’s Estate.

      Executors and administrators — Administrator’s sale — Agreement of administrator as to marketable title — Case stated.

    Where an administrator in making a sale under an order of court, has agreed in advance of the sale, that before the purchaser shall be required to accept a deed and pay the purchase money, the sufficiency of the title shall be determined through a case stated, and the purchaser relying upon this agreement, bids at the sale, pays a portion of the purchase money, and permits the sale to be confirmed, the purchaser is not entitled thereafter to have a decree entered setting aside the sale and ordering a repayment of the purchase money, on the ground of insufficiency of title, if it appears that no action had been taken by either party in reference to a case stated. All that the purchaser is entitled to is a decree suspending final action, and fixing a time within which a case stated shall be filed in the proper court for the determination of the sufficiency of the title.

      Argued May 19, 1908.
    Appeal, No. 136, Jan. T., 1908, by Mary Grove and Barbara F. Witmer, Administrators d. b. n. c. t. a., from decree of O. O. York' Go., vacating confirmation of sale in Estate of Sarah J. Hostetter, deceased.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
    Petition to open confirmation of sale of real estate. Before Bittenger, J.
    The facts are stated in the opinion of the Supreme Court.
    The court entered the following decree:
    And now, March 9, 1908, the rule to open the decree of the court is made absolute, at the costs of the estate of Sarah J. Hostetter, deceased; and we direct the administrators de bonis non, Barbara F. Witmer and Mary Grove, to pay the costs out of the estate, and also that out of said estate they refund to the petitioner, O. J. Delone, the sum of $2,502.62 paid by him on account of the price or purchase money of the real estate hereinbefore mentioned, on or before April 9, 1908, on his accounting for the income and the profits derived from the real estate during his possession of the same, and delivering possession of the said lands to said Barbara F. Witmer and Mary Grove, administrators de bonis non. And an exception is sealed for the respondents.

      Error assigned was the decree of the court.

      Edw. Chapin, with him O. E. Ehrehart, for appellants.

      Allen O. Wiest, for appellee.
    June 23, 1908:
   Opinion by

Mr. Justice Stewart,

At an administrator’s sale of the real estate' of Sarah J. Hostetter, deceased, the appellee, O. J. Delone, became the purchaser of one of the tracts at the price of $10,017.50. The first installment of purchase money having been paid, the sale was duly returned to the court, and on October 30, 1905, was confirmed. The purchaser entered into possession and has retained it ever since. On April 1, following the confirmation of sale, the administrator tendered to Delone a deed and demanded the balance of the purchase money. Delone refused to accept the deed, and thereupon suit was instituted against him to enforce payment. The action was halted by the present proceeding, begun by petition of Delone to the orphans’ court praying that the confirmation of the sale be revoked, for certain reasons fully set out in the petition. To the rule granted, the appellants who had succeeded to the trust on the death of the administrator who had made the sale, made answer, denying the m aterial averments in the petition. From the evidence submitted the court derived the following facts. On the day of the sale, and before Delone had bid on the property, it was mutually agreed between the administrators and Delone, that in case the latter became the purchaser, he should receive a fee simple title, and that before delivery of the deed and payment of the purchase money, there would be a sufficient case stated submitted to the court for the purpose of determining the sufficiency of the title. Except for this agreement Delone would not have bid at the sale; relying upon it, he became the purchaser, and allowed the sale to be confirmed absolutely: The doubt suggested in regard to the sufficiency of the title, relates to an undivided half interest, and arises from the will of Mary C. Hostetter, a sister of the deceased, in which she disposes of her interest in the premises. The suggestion is that it may be regarded as disputable whether under the will Sarah J. Ilostetter took a life estate or fee simple in this undivided half. We need particularize no further. The learned judge expresses the opinion that the will gives to Sarah C. a fee simple estate, and that the whole title to the land was vested in her at the time of her death. But, because his finding in this regard concluded no one, and the matter was open to future controversy, he was further of the opinion that the purchaser who had bargained for a fee simple title, ought not to be required to accept one thus exposed to attack, and which because of this circumstance could not be regarded as marketable. He accordingly entered a decree vacating the order of confirmation, and directing that the administrator refund to Delone the money paid by him on the purchase ($2,502.62), upon his accounting to them for the income and profit derived by him during his occupancy of the land, and that the administrators pay the costs of the proceeding. This was in effect a decree setting aside and annulling the sale, and to this extent it afforded the petitioner a larger measure of relief than he was entitled to, or that he had even asked. He had shown no cause whatever why he should be released from the obligation of his purchase at this time, nor had he asked to be so released, except upon refusal of the administrators to keep and observe the agreement made between him and their predecessors in the trust, namely, to submit to the court, a case stated in which the sufficiency of the title might be determined. The orphans’ court is not a tribunal for the termination of questions of title, not even upon agreement by the parties to the controversy, and the inquiry of the learned judge as to the sufficiency of the title here involved was wholly gratuitous. "Whether right or wrong it was nothing to the purpose, since this was not a question involved to this particular proceeding. Here was a case where an administrator in making sale under an order of court, had agreed in advance of the sale that before the purchaser could be required to accept a deed and paj^ the purchase money, the sufficiency of the title should be determined through a case stated. He had no right, of course, to make any such stipulation, but having made it, and the party having purchased on the strength of it, equitable considerations might well prevail with the court to do what was necessary to save the purchaser from prejudice under such circumstances. Hntil, however, it had been determined by some authoritative tribunal that the title was defective, there could be no grounds whatever for the court’s interference. The submission of a case stated for the determination of the sufficiency of this title, did not rest exclusively with the administrators ; it was something in which all parties were required to unite, and so far as appears one side was as much in default with respect to it as the other. Certainly there is no finding that the administrator had ever refused, or had ever been asked to proceed in this way. The facts with respect to the agreement having been found, the proper procedure would have been to suspend final action until the determination by a case stated of the question at issue had been reached. Nothing but a purpose on one side or the other to escape the arbitrament could prevent an agreement upon the case stated, for the case stated would properly present nothing but the question arising under the will of Mary C. Hostetter, deceased, which as we have above indicated, is a question of law pure and simple. A refusal by either to join in such case stated should be regarded by the court as determining the matter against the party refusing. The decree appealed from finds no sufficient warrant in the facts found by the court; it was premature at least. The ninth specification, which assigns for error the decree itself, is sustained ; the other assignments are overruled. The decree is reversed ; and it is now ordered that the proceedings be reinstated, and the orphans’ court is directed to fix by order the time within which a case stated shall be filed in the proper court for the determination of the sufficiency of the title, the matter thereafter to be proceeded with in the manner indicated in this opinion.


source: Caselaw Access Project

author: Opinion by Mr. Justice Stewabt,

license: Public Domain

text:
    Latsha v. Shamokin & Edgewood Electric Railway Company, Appellant.

      Negligence — Street railways — Injuries to motorman — Head on collision — Master and servant — Fellow servant — Vice principal — Contributory negligence — Proximate and remote cause.

    In an action by a motorman against his employer, an electric railway company, to recover damages suffered in a head on collision between his car and another car, where it appears that the superintendent of the company started with the other car, acting as its motorman, shortly after plaintiff’s car, without notice to plaintiff; and that the collision occurred on the plaintiff’s return trip, when the cars were proceeding in opposite directions; and it also appears that immediately before the accident the ears were within sight of each other at such a distance that the accident could only have occurred through the negligence of one or other of the motormen, or of both concurrently, the accident is to be attributed to such negligence as the proximate cause. Whether it was negligence to start out the second car without notice to the motorman on the first, not considered, for the reason that the circumstance was too remote. The law adopts the practical rule of regarding the proximate cause of the occurrence. The question of plaintiff’s contributory negligence in connection with the immediate cause of the accident was for the jury.

      Where the superintendent of an eleetrie railway company takes out a car to test it, and acts as motorman in the test, he is not a fellow servant of a motorman injured by the negligence of the superintendent operating the car under test. In such a case the superintendent is a vice principal and the company is liable for his negligence.
    Argued May 25, 1908.
    Appeal, No. 149, Jan. T., 1908, by defendant, from judgment of C. P. Northumberland Co.. May T., 1907, No. 212, on verdict for plaintiff in case of Lewis A. Latsha v. Shamokin & Edgewood Electric Railway Company.
    Before Pell, Brown, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Auten, P. J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    Defendant presented the following points:
    1. Under all the evidence in the case your verdict must be for the defendant. Answer: Refused. [1]
    3. The act of June 10,1907, relating to employer’s liability, is not retroactive and does not apply to this case, because the suit was brought before the passage of the act, and further because the accident occurred prior to the passage of the said act of assembly. Answer: Refused. [5]
    5. Under the undisputed evidence in the case, the plaintiff is guilty of contributory negligence, and cannot therefore recover. Answer: Refused. [7]
    6. If the court decline to affirm the defendant’s fifth point, then the court is respectfully requested to charge the jury, that if the jury find that the plaintiff’s car' was entering the curve at the Weigh Scales when Reed’s car was entering the curve at the other end, that the length of the curve was 261 feet, that Latsha’s car could have been stopped thirty-five or forty feet, going at eight miles an hour, that the front door of his car was open at the time of the collision and that one or two steps backward would have protected him from the injury, that the brakes and electrical equipments of his car were in good condition, that the plaintiff did not reverse the current, was going up a slight grade at the time of the collision, then the plaintiff would be guilty of contributory negligence, and cannot recover. [8]
    7. The proximate cause of the accident was the negligence of Reed, if any, in operating the car at or near the point of the collision. The sending out of the car without notice to the plaintiff was at most the remote cause of the injury or was the mere occasion of the'injury for which the defendant cannot be held liable. Answer: Refused. [2]
    Yerdict and judgment for plaintiff for $9,000. Defendant appealed.

      Errors assigned among others were (1, 2, 5, 7, 8) answers to points as above, quoting them; and (3) portion of opinion quoted in the opinion of the Supreme Court.

      Grcmb Herring and J. W. Gillespie, with them S. P. Wolverton, S. P. Wolverton, Jr. and J. Mai Gillespie, for appellant.
    The facts as to the cause of the injury being undisputed, the question of proximate cause becomes one of law for the determination of the court: Douglass v. New York Central & Hudson R. R. Co., 209 Pa. 128; Custer v. R. R. Co., 206 Pa. 529.
    The real complaint of the defendant, is not that the court did not determine the question of the proximate cause in favor of the defendant, but that he did not determine it at all.
    Intervening independent agencies are what brought about t.bia accident. In other words, the proximate cause of the accident was the negligence of the motormen, one or the other, or both, in operating the cars, for which the defendant was not liable: Roach v. Kelly, 194 Pa. 24; Hammill v. R. R. Co., 56 N. J. L. 370; West Mahanoy Twp. v. Watson, 116 Pa. 344; Hoag v. R. R. Co., 85 Pa. 293.
    On the question that Jerome Reed was, at the time of the injury, a fellow workman with the plaintiff, we cite: O’Neal v. Clydesdale Stone Co., 207 Pa. 378; Miller v. American Bridge Co., 216 Pa. 559; Vito v. Railway Co., 217 Pa. 398; Casy v. Paving Co., 198 Pa. 348; Prevost v. Citizens’ Ice, etc., Co., 185 Pa. 617; Ricks v. Flynn, 196 Pa. 263.
    The contributory negligence of plaintiff was a question in the case: Lynch v. Erie City, 151 Pa. 380; Butler v. Railroad Co., 126 Pa. 160; Cleveland & Pittsburg R. R. Co. v. Rowan, 66 Pa. 393; Waters v. Wing, 59 Pa. 211; P. & R. R. R. Co. v. Spearen, 47 Pa. 300; Penna. R. R. Co. v. Berry, 68 Pa. 272; Com. v. Meads, 29 Pa. Superior Ct. 321; Phila. Trust, etc., Co. v. Phila., etc., R. R. Co., 177 Pa. 38; Heydrick v. Hutchinson, 165 Pa. 208; Lingle v. Scranton Ry. Co., 214 Pa. 500.

      Fred. B. Moser, with him Geo. B. Beimensnyder, for appellee.
    We contend that the testimony as to the material facts in this case and the proximate cause of thó injury was conflicting and cannot under any circumstances be said to be undisputed. It certainly was not within the province of the court to decide as a matter of law the proximate cause of the injury to the plaintiff : Scott v. Hunter, 46 Pa. 192.
    The concurring negligence of a fellow servant with the negligence of the master will not relieve the master of liability : Cameron v. Citizens’ Traction Co., 216 Pa. 191; Whitley v. Evans, 30 Pa. Superior Ct. 41; Wallace v. Henderson, 211 Pa. 142; Hunn v. Mich. Central Ry. Co., 7 L. R. A. 500.
    A railroad company is bound to regulate the time and manner of running its trains, so as to avoid collisions, and to enable all its servants to know when a train may be expected, and thus avoid danger: Shearman & Redf. on Neg. sec. 693, quoted in Reagan v. St. Louis, K. & N. W. Ry. Co., 93 Mo. 348; Turner v. Norfolk & W. R. R. Co., 40 W. Va. 675 (22 S. E. Repr. 83).
    June 23, 1908:
   Opinion by

Mr. Justice Stewabt,

The defendant company operates a single track line of electric railway extending from Shamokin borough to Weigh Scales, a distance of about two and one-half miles. The plaintiff, employed by the company as motor man, and so acting at the time, left Shamokin with car No. 2 at 4:30 in the afternoon, to make a run to Weigh Scales and return. Within a few minutes after he had started, and without notice to him that another car was to follow, the superintendent of the company, Jerome Reed, started with a new car for the purpose of testing it, upon the same course, himself acting as motorman. The plaintiff, on the return from Weigh Scales, had proceeded with his car only about a fourth of a mile, and, so far as appeared, on schedule time, when the two cars came together in what is known as a head on collision, with the result that plaintiff was seriously injured. The action was brought to recover damages for the injury sustained, and resulted in a verdict for the plaintiff, which the court refused to disturb, overruling a motion for judgment non obstante. The collision was the result of extreme carelessness on the part of one or other of the motormen, perhaps of both. Reed, the superintendent, acting at the time as motorman on car No. 15, the new car which he was testing, when called as a witness for defendant, admitted that he saw the other car approach his ■when the two were 1,200 feet apart, and that he could have stopped his car at any time in a distance of thirty feet. Since the distance between the cars when plaintiff first saw the car operated by the superintendent approach, and the opportunity afterwards allowed him to avoid collision, are matters in dispute, and inasmuch as they must be for consideration hereafter in connection with the question of plaintiff’s contributory negligence, we will assume nothing in regard to them. The question immediately before us does not require that we assume or undertake to determine anything with respect to the plaintiff’s conduct. It is enough to know, in order to ascertain what was the immediate, proximate cause of the collision, that it occurred in broad daylight, between two cars with brakes and general equipment, mechanical and electrical, in good working condition, and that the peril was observed by at least one of the motormen, if not both, in ample time, in the exercise of even ordinary care, to avoid it. With such facts as these not only established but admitted, why look further for a proximate cause ? Further search for a cause would not only be useless, but would be a diversion well calculated to raise a false issue, as it certainly did in this case. How far the issue thus raised determined the verdict we cannot of course know; but the jury were directed to consider it, and were instructed to allow it determining effect, upon an affirmative finding of certain facts alleged in connection therewith. The submission of the court was in these words: “ I leave it to you to determine whether the sending out, or the permitting of this car (No. 15) to go out over this line, following No. 2, without notice to those operating car No. 2, was or was not negligence.” If the case was determined against the defendant on the issue thus presented, it was manifestly wrong; and how are we • to know that it was not so determined ? The law adopts the practical rule of regarding the proximate rather than the remote cause of the occurrence; it follows back along the chain of causation until it finds an adequate, efficient cause, and there it stops, adopting that as the causa causans in all questions affecting individual liability for the occurrence. Never was a proximate cause more clearly revealed than in this case; it was negligence of motorman or motormen' in not arresting the car or cars before collision. The question whether the company was chargeable with negligence in sending out car No. 15 without notice to those in charge of car No. 2, was wholly outside the case. Of course, the collision could not have occurred had not car No. 2 been sent out; but it does not follow that a collision should have been anticipated as a matter of definite inference, in the natural and ordinary course of events ; and even though it were negligence to send it out without notice — a proposition to which we must not be understood as assenting — here was intervening negligence, operating directly and immediately to produce the collision, wholly independent of the earlier negligence in sending out the car. When such intervention occurs the law applies the maxim, causa próxima, non remota, spectatur.

The same error that appears in the charge with respect to the cause of accident is repeated in the answers to points submitted ; and the assignments cover both charge and answers. So far as they relate to this particular error, without more, they are sustained.

The answer of the court to the fourth point submitted by the defendant is the subject of the fifth assignment of error. This point, after asserting that it was not negligence in the company to send out the second car without notice, asked instructions to the effect, that if the jury found- the plaintiff’s injuries had been caused by Reed’s negligence in failing to stop his car, there could be no recovery against the company, inasmuch as Reed and the plaintiff were fellow servants." This point was negatived only because of what it asserted with respect to the sending of the second car. Herein it was directly contrary, as we have seen, to the expressed view of the court. The learned judge did not intend by this ruling to hold that Reed and the plaintiff were not fellow servants, or that the company could be liable in any event, except as negligence could be imputed to it in connection with the sending out of the second car. On the contrary, he expressly instructed the jury that they were to regard Reed and the plaintiff as fellow servants, and that if plaintiff’s injuries were occasioned by the negligence of Reed, there could be no recovery, as fully appears by the following extract from the charge: “ I charge you further, and to this I draw your special attention, that if you find that the railway company was not negligent in permitting or sending out this car No. 15, that then your verdict must be for the defendant, because in that event, the accident was the result of the negligence of a coemployee, or the result of the negligence of the plaintiff, or the result of the concurrent negligence of the plaintiff and Reed who then acted in the capacity of coemployee, and if concurrent, then of course the plaintiff contributed to it.” But for the fact that the case must go back for another trial, we might well be content to dismiss this assignment without comment, since the ruling of the court upon it was manifestly correct; but the reasons which prevailed to reach this result were so manifestly wrong, and as it is evident that the same questions will again arise on a retrial of the case,' we feel it our duty to give some expression of view with respect to them.

■ Hnder the ruling of the court plaintiff’s right to recover, as we have seen, was made to depend entirely and exclusively upon the finding of the jury in the matter of the alleged negligence of the company in sending out the second car. This feature of the case must be entirely eliminated. The question of defendant’s liability is to be determined alone from a consideration of the immediate, proximate cause of the accident. Where was the negligence that produced the collision % If it was wholly Reed’s, was the company liable therefor ? There can be no doubt as to the proper answer to this question. Reed was not in any sense a fellow servant with the plaintiff. While operating the motor or controller on car No. 15 for the purpose of testing the car, he was strictly in the line of his duty as superintendent of the company. It is not for the ordinary motorman in his duty as an employee to test the sufficiency and completeness of cars before they are adopted as part of the equipment of the road. His duty is to accept the car given him to operate, and with it goes the company’s implied assurance that it is sufficient for the purpose intended. When Reed was testing this car on the day of the accident, it was not being employed in the work of the company, or serving the public, but was out for the one purpose of having it determined whether it would meet requirements; and Reed in operating the controller, was doing just what was necessary to inform himself on this point. In this connection, and for the time being, he was a principal, and his act was the act of the company. If the negligence was his, and his alone, plaintiff’s right to recover follows necessarily. Did or did not the plaintiff through any negligence of his contribute to the result ? This it seems to us is the only question in the case. It was not submitted to the jury because, in the view taken of the law by the trial judge with respect to the matters we have considered, it was unnecessary. On another trial its full importance must be allowed. All we deem it necessary or prudent to say on the subject is to express the conclusion we have reached, after a careful review of the evidence, as to its effect. The plaintiff’s evidence presented a state of facts, which, however contradicted, made the case one in which the proper inferences with respect to plaintiff’s contributory negligence could only be derived by the jury.

Judgment reversed, and venire facias de novo awarded.


author: Mr. Justice Stewart,

text:
    Dull’s Estate.

      Will — Conversion of real estate — “Legal share” to widow — Intention— Construction.

    Testator dying without children gave to his wife “The furniture, pictures, household goods, horses, carriage and house and lot in which we now reside, to have and to hold and enjoy as long as she may desire to live there, after which time I direct that they be disposed of by my executors, and become part of my estate. I also direct the legal share of all my real estate and personal property to be paid to my wife as her share out of my estate.” He gave a money legacy and the “balance” of his estate to relatives. He gave a positive, express and unconditioned direction to his executors to dispose of all of his estate within three years after the testator’s death. Held, (1) that the direction to sell worked an absolute conversion of the real estate into personalty, and (2) that the widow took one-half of the entire estate absolutely, regarded as personalty.
    Argued June 1, 1908.
    Appeal, No. 142, Jan. T., 1908, by Henry B. McCormick and Yance C. McCormick, executors of Hannah C. Criswell, deceased, from decree of O. C. Mifflin Co., dismissing exceptions to auditor’s report in Estate of C. P. Dull, deceased.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to report of William W. Uttley, Esq., auditor.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were in dismissing exceptions to auditor’s report.

      8. P. Wolmrton and M. W. Jacobs, with them 8. P. Wolmrton, Jr., and Grant Herring, for appellants.
    The intention of the testator, not the logical consequences of the fiction of equitable conversion, determine the widow’s share.
    The principle of equitable conversion is not a hard and fast rule which must always be rigorously applied with all its consequences, whenever there is a direction to sell real estate: Foster’s Appeal, 74 Pa. 391, 397; Yerkes v. Yerkes, 200 Pa. 419, 423; Shedden’s Estate, 210 Pa. 82; Painter v. Painter, 220 Pa. 82, 86; but is merely a presumption in accordance with the supposed intention of the testator, which, gives way whenever that intention appears: Henszey’s Est., 220 Pa. 212; Hunter’s Est., 6 Pa. 97.
    Testator’s intention is to be gathered not only from the words he used, but also from the circumstances under which he used them: Hermann’s Est., 220 Pa. 52.
    If the language of the testator leaves his intention in doubt, that construction is to be favored which most nearly conforms to the intestate laws: Finney’s Appeal, 113 Pa. 11; Dunlap’s Appeal, 116 Pa. 500; Hoch’s Estate, 154 Pa. 417, 420; Minter’s Appeal, 40 Pa. 111; France’s Est., 75 Pa. 220.

      W. U. Sensei, for appellee.
    The will worked a conversion of the real estate: Hunt’s App., 105 Pa. 128; Irwin v. Patchen, 164 Pa. 51; Jones v. Caldwell, 97 Pa. 42; Poland v. Miller, 100 Pa. 47; Findley’s App., 102 Pa. 235; Fahnestock v. Fahnestock, 152 Pa. 56; Vanuxem’s Est., 212 Pa. 315; Dalrympie’s Est., 215 Pa. 367.
    A widow claiming under the will is not to be treated as a mere volunteer, but as a purchaser, and is, therefore, entitled to a fair and liberal construction of the will in her interest : McCallum’s Est., 211 Pa. 205; Musselman’s Est., 39 Pa. 469; Finney’s App., 113 Pa. 11; Clery’s App., 35 Pa. 54.
    If the power given in the will worked a conversion, the proceeds of the real estate were stamped with the character of the personalty at the death of the testator, for in all cases of conversion the interest of the heir or legatee prior to the election to take as real estate has been regarded as a mere chose in action. At the death of the testator, the realty eo instanti is converted and passes as personalty: Miller v. Commonwealth, 111 Pa. 321; Mellon v. Reed, 123 Pa. 1; Bender v. Luckenbach, 162 Pa. 18; Horner’s App., 56 Pa. 405; Evans’s App., 63 Pa. 183; Davis’s App., 83 Pa. 348; McClure’s App., 72 Pa. 414; Klotz’s Est., 190 Pa. 152.
    No contrary intention on the part of the testator is disclosed. Every manifest intent of the testator was in support of the more liberal provisions for his widow: Wolf’s Est., 9 W. N. C. 260; Sharpe’s Est., 16 Phila. 403.
    However, the exact point in issue in this case has been actually decided, and in both cases the construction has been in favor of the possession of the widow: Williams v. Williams, 1 W. N. C. 54; Barry’s Est., 13 Phila. 310.
    June 23, 1908:
   Opinion by

Mr. Justice Stewart,

What interest in his estate did the testator intend that his widow should take % The clause in the will relating to her is as follows : “ To my beloved wife, Hannah Wiley Dull, I give, devise and bequeath the furniture, pictures, household goods, horses, carriage, and house and lot in which we now reside, to have and to hold and enjoy as long as she may desire to live there, after which time I direct that they be disposed of by my executors and become part of my estate. I also direct the legal share of my real estate and personal property to be paid to my said beloved wife as her share out of my estate.” By the next succeeded item a legacy of $1,500 is given to a relative, and immediately following occurs this residuary clause: “ All the balance of my estate I devise to my three sisters, Mrs. Hannah Criswell, Mrs. Nancy Macklin and Mrs. Margaret Horning, or their heirs, share and share alike, to be paid by my executors as hereinafter named.” What is given the widow is her “ legal share.” These words, standing alone and unqualified by other expressions and provisions in the will, would indicate with much certainty — there being no children — an intention that she should take one half of the personal property absolutely, and the income of one-half of the real estate during life. Since the law seeks to give effect to the testator’s intention as derived from the whole will, the inquiry must be to discover whether any other or different purpose is elsewhere expressed, or indicated with equal or greater certainty. The will contains a positive, express and unconditioned direction to the executors to dispose of all the balance of the estate within three years after the testator’s death. This balance evidently embraced all the real estate owned by testator at the time of his death, even the house and lot devoted to the widow’s use, in the event of her ■ occupancy of it terminating within the period fixed. It is designated as balance, for the reason that in an earlier part of the same clause, testator had directed that a certain sand property of large value, should be retained and operated by the executors for a period not exceeding five years. This property the testator sold in his lifetime ; but it having been set apart in the will from the rest, since it was the only piece of real estate thus distinguished, the direction to sell included all- else. What, then, is the legal significance of this -direction to sell or dispose of all the testator’s real estate ; and how does it reflect the testator’s intention with respect to the share of the widow ? The right of a testator to make land money, to effect his own purpose, is unquestionable ; and it follows from this right that persons claiming property under a will directing its sale, must take it in the character which the will imposes on it. This results not from the application of any artificial rule, or any equitable doctrine, but solely because it is the testator’s expressed desire. How could a testator make it more certain and conclusive that he did not intend his beneficiary to take his real estate, than by directing its sale % In such case it is not the law that works the conversion, but the will that directs it. The law sometimes employs a fiction in aid of a testator’s intention, and by use of it, the conversion which the testator ordered is anticipated in such a way, that what is ordered to be done is regarded as actually accomplished ; but that fiction is without application here, and the doctrine of equitable conversion, much discussed upon the argument, plays no part. If the question were as to when the conversion arose, whether at the death of the testator, or when the sale was actually made, then the fiction and doctrine would apply ; but no such question concerns us here. It is enough to know that there is a positive direction to convert, and the result must have been the same whether actual conversion or equitable was contemplated. The evident purpose of the testator in directing a sale of his land was in connection with the distribution among his beneficiaries; and the presumption is that he knew if his lands were sold as he had directed, the proceeds would be distributed as personalty. It is not pretended that the will gives to the three sisters who take the residue any estate in the lands. Conversion as to them is admitted, and it is freely allowed that all the interest they have is in the execution of the trust through which they are to do receive their shares in money. The effort is to distinguish between them and the widow in this regard. Because the testator has described the interest given the latter as a “ legal share,” it is argued that his intention must have been to confine her share within the limitations of intestacy; that is to say, one-half of the personal estate absolutely and one-half the income of the real estate during life. That the testator could have so limited and restricted her share is a matter of course ; but since the legal share may under certain conditions, when there is real estate, embrace the one-half the entire estate, regarded as personalty, the question remains, what was this testator’s understanding as to the meaning of the words used 1. In this connection the fact that his’ will directs a conversion of the real estate is of large significance. Under this provision what he was distributing to his beneficiaries was money, not land, and it was the money to be derived from the sale of the land that he had under contemplation. A widow’s legal share under conditions we have here, the estate being personalty, would be the one-half absolutely. It is always a legitimate presumption that a testator in framing his will knew the law, and intended such results as would follow through the law, unless he provides to the contrary. Not only does the will contain no contrary provision, but every provision and direction is consistent with the purpose to make the widow’s share payable directly to her out of the net result obtained through a sale of the entire estate, divested of all charges. It is as much because of what the will does not contain, as of what it does, that we reach the conclusion that the testator intended his widow to take one-half the whole absolutely. It contains nothing which in the remotest way suggests that her share is to be a charge upon the real estate; or that it shall be held in trust in case the land be sold discharged of it; or that it was income she was to receive ; or that her ownership was to be qualified in any way. On the contrary, in express terms it directs that this legal share be paid to her out of the estate, just as it provides that the shares of the three sisters are to be paid to them. ' This was the will of a man of extensive business experience, owning large estates in land. It shows an anxiety on his part that his lands when sold, should sell to the largest advantage. It would be apparent to anyone of the most limited experience and observation, that this result would be impossible, were a dower of one-half the whole value to be charged upon the land. Did he contemplate such a sale ? We cannot think so. If he did not, but intended a sale outright, then if appellant’s view be correct, we are confronted by this other circumstance so unusual in testamentary dispositions as to be remarkable, that he created a fund for the widow for life without giving any directions at all with respect to its investment, control or management, other than that it was to be paid to her. That he intended a sale which would divest the dower we have ño doubt; that he intended the widow to receive but the income of one-half the purchase money during her life, is not only inconsistent with the general scheme of the will, but conflicts with the express provision which requires that her share be paid to herself. A careful examination of the will in all its parts has satisfied us that the conclusion reached in the court below awarding the widow the one-half of the entire estate as personalty, accords with the expressed intention of the testator.

The appeal is dismissed at the cost of appellants and the decree is affirmed.


author: Mr. Justice Brown,

text:
    Commonwealth v. Harvey, Appellant.

      Bail — Recognizance—Forfeiture—Quarter sessions — Common pleas— Discretion of court — Remittance of forfeiture.

    The court of quarter sessions’ decree of a forfeiture of a recognizance is conclusive in proceedings on the recognizance in the court of common pleas. In the latter court the question of the breach of the recognizance cannot be raised.
    Under the Act of December 9,1783, 2 Sm. L. 84, the courts of common pleas have a discretionary power to remit a forfeiture of a recognizance, but the Supreme Court will not review the discretion of the common pleas in refusing to remit a forfeiture where the ground for relief alleged was that the defendant appeared at-court and remained until the indictment against him was ignored by the grand jury, and that it had been the uniform and unbroken practice in the county in question to regard the report of a grand jury, ignoring .the bill of indictment, as ipso facto, a discharge of the defendant; and the refusal to review such discretion will be considered by the Supreme Court even more proper where it appears that the case still continued under the control of the court below after the ignoring of the indictment, and was formally continued for action upon it by a subsequent grand jury.
    The averment in such a case as to the practice in the quarter sessions might have been taken into consideration by the court below as a reason for exercising its legal discretion in moderating or remitting the forfeiture, but it was not required to do so.
    Argued June 1, 1908.
    Appeal, No. 5, May T., 1907, by defendant, from decree of C. P. Daupbin Co., March T., 1906, No. 79, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Commonwealth v. Frank Harvey and the Title Guaranty & Trust Company of Scranton, Pa.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a recognizance. Before Kunkel, P. J.
    Rule for judgment for want of a sufficient affidavit of defense.
    The opinion of the Supreme Court states the case.

      Error assigned ivas rule for judgment for want of a sufficient affidavit of defense.

      Hargest & Hargest, with them Trautman & Llewellyn, for appellant.

      John Fox Weiss, with him W. II. Middleton and W. H. Musser, for appellee.
    June 23, 1908:
   Opinion by

Mr. Justice Brown,

The appellant entered into a recognizance for the appearance of Frank Harvey at the January Term,.1906, of the court of quarter sessions of Dauphin county. It was forfeited, and in this suit upon it the question of its breach cannot be raised. The court of quarter sessions’ decree of forfeiture is conclusive in the proceedings in the common pleas: Shriver v. Commonwealth, 2 Rawle, 206; Rhoads v. Commonwealth, 15 Pa. 272; Pierson v. Commonwealth, 3 Grant, 311; Commonwealth v. Basendorf, 153 Pa. 459.

By the Act of December 9, 1783, 2 Sm. L. 86, the courts of common pleas are empowered to levy, moderate or remit recognizances forfeited in the courts of quarter sessions “ on hearing the circumstances of the case according to equity and their legal discretion; ” and this court may hear appeals from orders or judgments of said courts on such forfeited recognizances. The affidavit of defense in this case is but an appeal to the discretion of the court below tt> remit the forfeiture of the recognizance. No legal defense is set up in it, and the court committed no error in ref using, to exercise the discretion given by the act of 1783. The condition of the recognizance was that Harvey would, appear and “ not depart the said court without leave.” His failure to appear, or his departure after appearing without leave' of court to go, was a breach of it. “The mere appearance of a defendant and then departing without such leave, clearly does not release the surety: Commonwealth v. Coleman, 2 Metcalf (Ky.), 382; Star v. Commonwealth, 7 Dana, 243; The State v. Gorley, 2 Clarke (Iowa), 52; Humphrey v. Hasson, 26 Vermont, 760. It is the express condition of the recognizance that he shall appear and not depart the court without leave. It is at all times in the discretion of the court, at any stage of a criminal trial, to call the defendant and forfeit his recognizance: The People v Petry, 2 Hilton, 523; The People v. Blankman, 17 Wend. 252; Gildersleeve v. The People, 6 Barb. 35; Wilson v. The State, 6 Blackf. 212; The State v. Stout, 6 Halst. 125: ” Mishler v. Commonwealth, 62 Pa. 55.

The appeal of the defendant below to the discretion of the court to give it some measure of relief is based upon an averment that on the second day of the court, when the bill of indictment against Harvey was presented to and ignored by the grand jury, he was present and remained in court until the following day, ready to answer the charge that had been preferred against him and any other that might be preferred, but that the uniform and unbroken practice in the court of quarter sessions of the county was to regard the report of a grand jury ignoring a bill of indictment as ipso facto a discharge of the defendant, and to treat an entry upon the records of the court of such action by the grand jury as leave for him to depart. The uniform and unbroken practice in the court of quarter sessions is not a. question in this proceeding by the commonwealth to recover for the use of the county on a recognizance actually forfeited. The averment as to such practice might have been taken into consideration by the court below as a reason for exercising its legal discretion in moderating or remitting the forfeiture, but it was not required to do so. Though the affidavit of defense avers Harvey’s appearance in court and his remaining there until the third day, there is no averment that leave ever was given him to depart. On the contrary, it rather appears not only that such leave was not given, but, if it had been asked for, would have been refused. The admission in the affidavit of defense is, that on January 11, 1906 — the fourth day of the term — the case was continued to the next term, with leave to the district attorney to submit it again to a grand jury. The prosecution against Harvey was not concluded ivhen the bill against him was ignored. It was still under the control of the court and was formally continued for action upon it by a subsequent grand jury. The defendant had not been acquitted, and in the interval he was to remain in the custody of the court-' and not depart without leave, for that was the condition of his recognizance. Until such leave was obtained there was no exoneretur for his bail.

Judgment affirmed.


author: Mr. Justice Potter,

text:
    Mohn, Appellant, v. Pennsylvania Steel Company.

      Negligence — Master and servant — Evidence—Contributory negligence.

    In an action against a steel company to recover damages for the death of one of its workmen, binding instructions for defendant are proper where the evidence shows that the deceased worked at a gas making plant which produced two kinds of gas at a machine equipped with two valves; that when one kind of gas was to be produced, one of the valves was to be opened and the other to be closed and that the deceased instead of opening one and closing the other, opened both of them simultaneously, causing a rush of gas which fatally burned him.
    Argued June 3, 1908.
    Appeal, No. 3, May T., 1908, by plaintiff, from judgment of C. P. Dauphin Co., March T., 1906, No. 286, on verdict for defendant in case of Margie Mohn v. Pennsylvania Steel Company.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Kunkel, P. J. ■ ...
    The facts are stated in the opinion of the Supreme Court.
    Yerdict and judgment for defendant. Plaintiff appealed. ■

      Error assigned was in giving binding instructions for defendant.

      Wm. M. Ilargest, of Ilargest dé Ilargest, with him Swartz Brothers, for appellant.

      W. F. Darby, John B. Geyer and John E. Fox, for appellee.
    June 23, 1908:
   Opinion by

Mr. Justice Potter,

This was an action brought by the widow of John Mohn to recover damages for the death of her husband caused, as was alleged, by the negligence of the defendant company. The negligence charged was failure to keep in good order a valve connected with its gas generating plant. It appears from the evidence that John Mohn, who was an experienced workman, was employed as a fireman at the gas making plant of the defendant company, and was fatally burned on May 16, 1901, dying the following dajn The gas made at the plant was of two kinds, “ producer gas,” an inferior quality, and “ water gas,” which was of a higher grade. Distinct pipes and receptacles were provided for the carriage and reception of the gas in the process of making. The machinery included the use of two four-way hydraulic cocks, two to each generator, which operated valves known respectively as the “producer gas valve ” and the “ water gas valve.” The hydraulic cocks were operated by means of hand levers. When either gas was being produced, the appropriate valve was to be opened, and the other one was to be closed. In changing from one kind of gas to the other, it appeared that the safe and proper practice was to throw the lever controlling the valve which had been closed, and as soon as, and not until, it was opened, to throw the other lever, thus closing the second valve. In other words, the valves should not have been operated simultaneously. At the time of the accident, Mohn attempted to change from “ water gas ” to “ producer gas,” but instead of first throwing the lever connected with the producer valve, thus opening it, and then pulling the one connected with the water gas valve, thus closing that one, he threw both of them simultaneously. The result was the closing of the water gas valve, and as the producer valve, which had been closed, stuck and refused to open, there was no outlet for the gas in .the proper channel. Seeing this, and doubtless fearing an explosion, Mohn endeavored to open the top of the generator, and while so engaged the gas rushed out and fatally burned him.

Complaint is made that the four-way cock would not work, and as a result the accident followed. But if we have correctly understood the testimony; no harm would have resulted from the sticking of this valve, had the operator followed the safe method of moving one valve at a time. There was evidence that Mohn had been warnecl against' throwing both levers at the same time, and it would also seem that his knowledge and experience as a gas maker would have suggested the danger of that method of operation. However, the testimony does not sustain the contention of plaintiff’s counsel, under any .aspect of the case. For the sticking of the valve, of which complaint is made seems to have occurred some ten days prior to the accident; and whether anything was then done to make the valve work smoothly, does not appear. But at any rate it did continue to work, and was moved.approximately every three -minutes after -that, night and day, until the accident occurred. No break was shown, in the valve, and no cause for its sticking, or working hard, was shown. "Whether it was for lack of oil or from heating and expanding, or from some other temporary cause, did not appear. For all that was shown by the testimony, the sticking was apparently of the most temporary character, when it gave some trouble ten days before, with no reason for further complaint during the intervening time. We see nothing in the evidence to sustain the charge that the valve was defective ; on the contrary, it appeared that the valve when examined was found to be in good condition, .in no need of repair, and that it continued in constant use in precisely the same way for years after the accident. It is plain, as the trial judge says, that the accident occurred because of the manner in which the apparatus was operated by the deceased, rather than from any defect in the device itself.

We think the court below very properly directed the verdict to be rendered in favor of the defendant, and the judgment is affirmed.


author: Per Curiam,

text:
    Commonwealth ex rel., Appellant, v. Beaver Valley Railroad Company.

      Railroads — Longitudinal use of highway — Acts of September 28, 1791, 3 Sm. L. 56, March 6,1793, 3 Sm. L. 90, March 29,1802, 3 Sm. L. 495, and April 4, 1868, P. L. 62 — Boroughs.
    A railroad company incorporated under the Act of April 4,1868, P. L. 62, has a right to lay its tracks longitudinally on the streets of a borough, although the act under which the borough was incorporated provided “that the streets, lanes and alleys of said town and out lots shall be common highways forever.”
    Argued June 2, 1908.
    Appeal, No. 6, May T., 1908, by plaintiff, from decree of C. P. Dauphin Co., Equity Docket No. 356, Commonwealth Docket, 1905, No. 305, dismissing bill in equity in case of Commonwealth ex rel. Attorney General v. Beaver Valley Railroad Company.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Capp, J., filed the following opinion:
    This proceeding was instituted by the commonwealth of Pennsylvania ex rel. Hampton L. Carson, attorney general, against the Beaver Valley Railroad Company, to restrain the defendant company from operating and maintaining its railroad longitudinally on Fifth street in the borough of Beaver, to have the said railroad declared a public nuisance, to require the removal of said construction from Fifth street and restore the street to the condition it was prior to the entry thereon by the said defendant company and its occupation thereof.
    From the admissions in the answer and the evidence taken on final hearing, we find the facts to be as follows:
    FINDINGS OF FACTS.
    1. The town of Beaver was laid out in pursuance of two several Acts of assembly, approved, respectively September 28, 1791, 3 Smith’s Laws, 56, and March 6, 1793, 3 Smith’s Laws, 90, in which it is, inter alia, provided “ that the Governor shall reserve out of the lots of said town so much land as he shall deem necessary for public uses,” and also “ that the streets, lanes and alleys of the said town and out lots shall be common highways forever,” and was incorporated into a borough by the Act of assembly approved March 29, 1802, 3 Smith’s Laws, 49.5.
    2. The defendant company was incorporated September 5, 1899, under the act of April 4, 1868, entitled, “ An Act to authorize the formation and regulation of railroad corporations,” and the several supplements thereto, for the purpose of constructing, maintaining and operating a railroad between two points in Beaver county, Pennsylvania, the eastern terminus being at or near the point where the Beaver and Mercer state road, commonly called the Sharon road, crosses the Pittsburg & Lake Erie Railroad in Beaver county, Pennsylvania, and the western terminus at or near a point on the Ohio river, about 500 feet south of the residence of John Moore, in Borough township, in said county and state.
    3. The municipal authorities of the borough of Beaver, by ordinance duly approved September 15, 1899, granted the defendant company the right to enter upon Fifth street, in the borough of Beaver, Pennsylvania, and to construct, maintain and operate its railroad thereon longitudinally, which said ordinance was accepted by the defendant company on September 20, 1899.
    4. The defendant company, subsequent to the enactment and acceptance of said ordinance, located and constructed its railroad through the borough of Beaver, along and upon Fifth street, one*of the “ common highways ” of said borough (laid out and dedicated in pursuance of the provisions of the act of 1791, supra) longitudinally, in the center of said street and at grade therewith the whole length of said street, to wit, a distance of about 3,800 feet, which said street is intersected and crossed by several streets, viz.: Buffalo street, Market street, Elk street, Branchbank street, Beaver street and Mercer road, upon which several streets or roads, as well as upon Fifth street, there is comparatively little travel.
    5. The construction of the said railroad on Fifth street was commenced in the latter part of October, 1903, and completed about June 1, 1904, since which time it has been in active operation. In the construction of its railroad the defendant company expended about the sum of $130,000.
    6. Between the date of the commencement of the construction of the railroad and the date of its completion the borough of Beaver and several abutting property owners filed injunction bills to restrain its construction on Fifth street, which several proceedings were duly dismissed; and on September 25, 1905, the present bill was filed. .
    DISCUSSION.
    The question to be determined in this case is: Has the Beaver Valley Railroad Company, a corporation duly incorporated under the act of assembly approved April 4, 1868, the right to occupy Fifth street, in the borough of Beaver, longitudinally with its railroad as constructed and for some time past operated thereon ?
    It is not disputed that the railroad company is occupying Fifth street with the consent of the borough authorities and in accordance with the terms of the ordinance granting it permission so to do.
    It cannot be questioned,. under the numerous decisions' of our appellate courts, that a highway is the property of the public, not of a particular district, but of the whole state, who may dispose of it by their representatives and at their pleasure, and in which no person, natural or corporate, has any exclusive- interest unless it has been granted by the statute: Philadelphia v. Trenton R. R. Co., 6 Whart. 25.
    The right of the supreme legislative authority to authorize the building of a railroad on a street or other public highway is not to be doubted : Com. v. Erie & North-East R. R. Co., 27 Pa. 339.
    “ The poAver of the legislature to authorize the building of a railroad upon a public road is indubitable. ... To the commonwealth belongs the franchise of every highway Avithinits limits as trustee of the public. Every public -road therein exists by force only of the commonwealth’s authority : ” Danville, etc., R. R. Co. v. Com., 73 Pa. 29.
    The principle of law supported by the above authorities is not denied, but it is suggested that Fifth street' is peculiar in its relation to the commonwealth, in view of the fact that it was dedicated as a “ common highway ” under and in pursuance of the act of 1791, supra. We fail to see how this fact can in any wise interfere with the operation of the admitted general principle of law that the sovereignty of public roads remains in the commonwealth; the faét that the commonwealth has dedicated the street in question to public use does not lessen its control over it or prevent it from exercising the same sovereignty it admittedly would have if the street had been dedicated by someone else; we can see no force in this suggestion.
    The rights of railroad companies incorporated and organized under the provisions of the act of April 4,1868, to occupy public highways longitudinally, have been so well settled by our appellate courts that any attempt on our part to discuss this right would be an affectation of learning and research.
    In the Appeal of the Philadelphia, Germantown and Norristown Railroad Company, 2 Walker, 291, a proceeding in equity brought to restrain a railroad company, formed by the consolidation of several companies incorporated and organized under the general railroad laws of this commonwealth, from laying its tracks upon Lafayette street, in the borough of Norristown, longitudinally, the president judge of the court below, on a motion to continue the injunction, dissolved it, referred the case to a master, who submitted a report thereon, in which he adopted the views expressed by the court in its refusal to grant the preliminary injunction, which report, upon exceptions, was duly confirmed, whereupon the complainant appealed to the Supreme Court, who affirmed the decree of the court of- common pleas in the following per curiam opinion:
    “ The sole contention is as to the right of the appellee to construct its road on Lafayette street in the borough of Norris-town. The appellants own lots fronting-on the street. They have no greater right than any private person owning a lot fronting thereon has to prevent the construction of the railroad. No question as to the measure of damages, or giving security for the payment thereof, arises. They are out of the question. The municipal authorities have given their permission to lay the track on the street. It is in the line of the corporate franchise of the appellee. Under these facts the right to lay it is too well sustained by the authorities to be successfully questioned.”
    Mr. Justice Trunkey, in Penna. R. R. Co.’s Appeal, 115 Pa. 514, says : “ A company organized under the general statute may locate its railroad on a street or alley, because that statute expressly confers the power.” The commonwealth suggests that this language of the learned justice is obiter dicta and was not well considered. To this suggestion we cannot accede; on the contrary, when it is noted that the opinion in Penna. R. R. Co.’s Appeal was filed little more than a year subsequent to the per curiam hereinbefore recited, it is very evident this statement was incorporated in the opinion by the learned justice with the disposition of the Philadelphia, Germantown and Norristown R. R. Co.’s Appeal, 2 Walker, 291, fresh in his recollection.
    This construction of the act of April 4, 1868, was also adopted by the master in Phila. v. River Front R. R. Co., 173 Pa. 334, exceptions to whose report were overruled by the court of common pleas, and upon appeal the Supreme Court affirmed the judgment of the court below by a per curiam opinion, saying: “ The questions involved in the assignments of error, so far as are material, have been so fully considered by the learned master that we deem it unnecessary to add anything to what he has said.”
    See also Penna. R. R. Co.’s Appeal, 116 Pa. 55; McAboy’s Appeal, 107 Pa. 548.
    The defendant also contended that even if the commonwealth had any standing to proceed in equity, nevertheless by remaining quiet until defendant had expended a large sum of money in the'construction of its railroad, in pursuance of authority contained, or believed to be contained, in its charter, and the general laws pertaining thereto, and until said railroad was fully completed and had been for some time in operation, the commonwealth waived and by its laches lost its right to proceed in equity.
    The defendant company commenced work on the construction of its railroad on Fifth street in October, 1903. It was temporarily stopped by injunction, subsequently dissolved, after which the work on the railroad was resumed and completed about June 1, 1904. This bill was filed September 25, 1905, more than fifteen months after the completion of the road and the commencement of its operation. The defendant expended a large amount of money in the construction of its road, and there is no evidence that the presence of the track in the center of Fifth street, which is 100 feet wide, is a public menace, or that it is a nuisance. There is some force in this position of the defendant. See Commonwealth v. Turnpike Co., 153 Pa. 47; Commonwealth v. Pittston Ferry Bridge Co., 148 Pa. 621; Heilman v. Street Ry. Co., 175 Pa. 188; Heilman v. Street Ry. Co., 180 Pa. 627. But in view of the well-settled right of the defendant to construct and operate its railroad on Fifth street, as it has done, it is unnecessary for us to pass upon the question of laches raised by the defendant.
    conclusions ok law.
    Wherefore we conclude that the defendant had the lawful right to construct and operate its road longitudinally on Fifth street, in the borough of Beaver, and that the plaintiff’s bill must be dismissed.
    And now, July 16,1906, this cause came to be heard on final hearing, was argued by counsel, and upon consideration thereof, it is ordered, adjudged and decreed that the plaintiff’s bill be dismissed at its costs. The prothonotary is directed to enter this decree nisi and give notice thereof to the parties or their counsel, and unless exceptions be filed within the time limited by the equity rules enter the above decree as a final decree.

      Error assigned was decree of the court dismissing the bill.

      W. A. McConnell, with him M. Hampton Todd, attorney general, John F. Cox, Jas. A. Stranahan and W. S. Moore, for appellant.

      Ceorge B. Cordon, with him M. E. Olmsted and A. C. Stamm, for appellee.
    June 23, 1908 :
   Per Curiam,

The decree dismissing the bill is affirmed on the opinion of the learned judge of common pleas, at the cost of the appellant.


author: Mr. Chief Justice Mitchell,

text:
    Smith, Appellant, v. Metropolitan Life Insurance Company.

      Insurance — Life insurance — Beneficiary—Wife—Death of ' wife— Change of beneficiary.

    Where a husband takes out a policy of life insurance on his life in favor of his wife without designating that in case his wife dies in his lifetime, the policy shall be payable to her executors, administrators or children, and the husband continues to pay the premiums and survives his wife, he may change the beneficiary in the policy after her death for the benefit of any other person, such as a daughter.
    Where all the conditions of fact expressly provided for in any contract have failed and the contract is silent as to anything further, regard must be had to the fundamental intent and effect of the contract. The contract of life insurance contemplates a payment by the insurer upon the death of the insured. That is the certain primary intent and does not admit of doubt. The secondary question, to whom is the payment due, is contingent on the circumstances.
    The naming of a beneficiary to whom payment is to be made is a gift of a benefit in future, but is contingent on the circumstances. Thus it carries with it no obligation to the beneficiary that the donor will keep the policy alive by continuing to pay the premiums. That is contingent on his doing so voluntarily. And the nature of the thing given would seem to imply that the beneficiary must survive the insured.
    Where a husband names his wife, without further mention, as beneficiary in a life insurance policy, and after her death secures from the agent of the insurance company, a printed blank called “change of designation,” which he executes, thereby substituting his daughter as beneficiary, and this paper is accepted by the company which continues to receive the premiums on the policy for seven years, the company is estopped from disputing the validity of the paper, although the paper may not have been strictly in accordance with the by-laws of the company.
    A provision in a policy of life insurance that a production by the company of the policy, and of a receipt for the sum assured by the executor or administrator, husband or wife, or relative by blood, or lawful beneficiary, shall be conclusive evidence that such sum has been paid to the person or persons lawfully entitled to the same, will not relieve the insurance company, where it has paid the amount of the policy to the executor of the insured, instead of to the beneficiary lawfully entitled to it.

      Argued Feb. 19, 1908.
    Appeal, No. 359, Jan. T., 1907, by plaintiff, from judgment of Superior Court, Oct. T., 1906, No. 227, affirming order of C. P. Schuylkill Co., Jan. T., 1906, No. 36, refusing to take off nonsuit in case of Esther A. Smith v. The Metropolitan Life Insurance Company of New York.
    Before Mitchell, C. J., Fell, Mestbezat, Potteb and Elkin, JJ.
    Reversed.
    Appeal from Superior Court.
    The facts appear by the opinion of the Supreme Court, and by the report in 34 Pa. Superior Ct. 72.

      Error assigned was the judgment of the Superior Court.

      James B. Reilly, with him George W. Ryon, for appellant.
    The wife’s rights under the policy terminated with her death : Thomeuf v. Knights of Birmingham, 12 Pa. Superior Ct. 195; Herr v. Reinoehl, 209 Pa. 483; Central Bank v. Hume, 128 U. S. 195 (9 Sup. Ct. Repr. 41); Olmsted v. Keyes, 85 N. Y. 593.

      R. II. Koch, with him Guy E. Fa/rquhcw, for appellee.
    The following cases seem to us to clearly sustain the judgment of the court below: Waltz v. Mut. Aid Society, 5 Pa. C. C. Rep. 208; Anderson’s Est., 85 Pa. 202; Brown’s App., 125 Pa. 303; Entwistle v. Ins. Co., 202 Pa. 141; Glanz v. Gloeckler, 104 Ill. 573; Weston v. Richardson, 47 L. T. (N. S.) 514; Pence v. Makepeace, 65 Ind. 345; Allis v. Ware, 28 Minn. 166; Herr v. Reinoehl, 209 Pa. 483; Watt v. Gideon, 22 Pa. C. C. Rep. 499; Jones v. Jones, 23 Pa. C. C. Rep. 254.
    October 5, 1908 :
   Opinion by

Mr. Chief Justice Mitchell,

Gordon took out five separate policies of insurance on his own life. No beneficiary or person to whom the insurance should be paid on the death of the insured was named in any of the policies, but in the applications for three of them, in answer to the printed question as to whom the money should be payable to, the name of his wife was written. In the other two there was not even this designation of a beneficiary, but it was conceded at the trial that the insurance was intended for her benefit and that the policies were handed to her by the insured. The trial court, therefore, treated all the policies as alike in her favor as beneficiary, and for the purposes of this case no question on this point need be considered.

The wife died first, and subsequently the husband by written order, on a blank “ change of designation ” furnished by the company, appointed his daughter, the plaintiff, as the beneficiary. She brought suit, and on the trial was non-suited on the ground that the interest in the policies had vested in the wife, and at her death passed to her administrator as part of her estate.

In support of this result reliance is had principally on the cases of Anderson’s Estate, 85 Pa. 202; Brown’s Appeal, 125 Pa. 303, and Entwistle v. Ins. Co., 202 Pa. 141. The facts, however, in these cases were so different that none of them can be regarded as a controlling authority for the present. In Anderson’s Estate the policy was payable to the wife, “ her executors, administrators or assigns.” The insured (husband) having died insolvent the money was claimed by his creditors, but it was held that it was an asset of the wife.

In Brown’s Appeal the policy was payable to the wife, and in case of her death before that of the insured then to her children. The wife and the husband jointly executed an assignment, and after the wife’s death it was held on interpleader that the children had title under the original contract, and it could not be divested by the assignment.

In Entwistle v. Insurance Company the insurance was payable to the wife, and if she died before the husband then to the children, but if the husband survived both wife and children then to his legal representatives. By the terms of the policy its value was convertible into cash at the option of the holder after fifteen years. Husband and wife sought to exercise the option, but it was held that the children had a beneficial interest which brought them within the term “ holders,” and could not be divested without their sanction.

In all the foregoing cases the contingency presented by the state of facts was one expressly provided for in the policy, and it is beyond question that where such is the case the terms of the policy, which is the substantial contract of the parties, must govern. But where, as in this case, a state of facts exists for which the policy makes no express provision, a very different question is presented.

In Brown’s Appeal it was said that the death of the wife in the lifetime of her husband “ extinguished her interest in the policy,” and in Entwistle v. Insurance Company “ the interest of the wife was wholly contingent upon her surviving her husband. ... If the wife die before the insured she will take nothing under the policy.” These expressions, of course, and the decisions in which they were used were based, as already said, on the language of the policies, but the same result would follow upon general principles. "Where all the conditions of fact expressly provided for in any contract have failed and the contract is silent as to anything further, regard must be had to the fundamental intent and effect of the contract.. The contract of life insurance contemplates a payment by the insurer upon the death of the insured. That is the certain primary intent, and does not admit of doubt. The secondary question, to whom is the payment due, is contingent on the circumstances.

The naming of a beneficiary to whom payment is to be made is a gift of a benefit in future, but is contingent on the circumstances. Thus it carries with it no obligation to the beneficiary that the donor will keep the policy alive by continuing to pay the premiums. That is contingent on his doing so voluntarily. And the nature of the thing given would seem to imply that the beneficiary must survive the insured. Thus in the present case the gift is equivalent to a provision that when the husband dies, having kept the policy alive, the wife shall be entitled to the money. But the intent is to provide for her, not for any other, and if she has died first, the expressed intent is incapable of fulfillment and we are not at liberty to supply a further intent which the donor did not indicate. He might have done so by naming her executor, or administrator, or children, at his own choice, but as he did not do so we are not authorized to make a choice for him. The natural presumption is that he did not desire such result, nor intend to continue to pay premiums for the benefit of any other person.

At the inception of the contract the whole disposition of the insurance money was within the control of. the insured. He might have provided in the policy for its disposition under any and all conditions, but he did not. By the designation of his wife as the party to receive it, he vested a right in her and to that extent parted with his control. But he did nothing more, and on her death before his, the condition failed and the right of control which he had only parted with on condition, returned to him, and in the absence of any further disposition by him would have become an asset of his estate.

The cases relied upon by the learned court below, as already said, differed so entirely in their essential facts that they are not authority for this. No Pennsylvania case has decided tbe question now raised. Outside of this state the decisions are not in entire harmony, but the weight of authority is with the views above expressed. In 13 Am. & Eng. Ency. of Law, p. 654, the general rule is thus stated :

“ Ordinarily where the insured survives those specified to take at his death, the insurance money, where no other disposition is made of it, becomes, at his death, a part of his estate, to be administered as his will, or in the absence of a will, as the law directs.” . . .

“But where a person, as a husband, takes out a policy on his life, in favor of another, as the wife, without further mention, and pays the premiums, and he survives the beneficiary, he may change the policy for the benefit of any other person, as a subsequent wife: ” Id. 656.

This brings us to the consideration of the plaintiff’s claim. The wife, the beneficiary designated in the applications, died in 1891, and the next year the insured substituted his daughter, the plaintiff, as beneficiary. The testimony was, that desiring to do so the insured applied to the agent (of the insurance company, was furnished by him with printed blanks, called “ change of designation ” which he executed, thereby substituting his daughter, the plaintiff, as beneficiary, in place of his wife who was dead. These changes of designation were delivered to the defendant company and were accepted by it. The company thus recognized the right to change the beneficiary, accepted the method of doing so and for more than seven years the insured continued to pay and the company to receive the premiums on the basis of such change. Whether the papers were strictly in accordance with the requirements of the by-laws of the company is immaterial. So far as the case was developed every element of estoppel exists to prevent the company from now disputing their validity.

As the trial in the court below, however, resulted in a nonsuit no evidence was given for the defendant, but it appears from the affidavit of defense that the company paid the insurance money to one Thomas S. Gordon, executor of the insured, and reliance is apparently placed on a clause in the policies, varying somewhat in expression but substantially to the effect that “ the production by the company of this policy, and of a receipt for the sum assured, signed by any person furnishing proof satisfactory to the company that he or' she is the executor or administrator, husband or wife, or relative by blood, or lawful beneficiary of the insured, shall be conclusive evidence that such sum has been paid to and received by the person or persons lawfully entitled to the same, and that all claims and demands upon said company under this policy have been fully satisfied.”

Similar clauses are not uncommon in the class. known as “industrial insurance,” where the amounts and estates are small and the purpose is to avoid the necessity of the expense of formal administration by law. But they are not intended and could not be allowed to override rights fixed by the policies. If, for example, the wife had survived the husband in this case, no such clause as that quoted could make a payment to his executor a valid defense against her vested claim as primary beneficiary. If the plaintiff’s substitution as beneficiary was valid, as prima facie it appears to be, the payment to Thomas S. Gordon, as executor of the insured, is no defense. But it is intimated that the fact as well as the good faith of the nominal substitution as between father and daughter are open to question. As the case did not reach the stage for evidence on that point, we express no opinion upon it.

Judgment reversed and procedendo awarded.


author: Me. Justioe Beown,

text:
    Jackson v. Thomson, Appellant. Jackson, Appellant, v. Thomson.

      Trusts and trustees — Executors and administrators — Power of sale— Fraudulent conveyance — Notice—Attorney at law.

    Where testamentary trustees with power of sale convey land to an attorney at law, who has full knowledge that the purpose of the deed is to provide for the payment for the individual indebtedness of the trustees, and is in consideration of the grantee’s payment or assumption of such indebtedness, the deed is void as to the shares of the cestuis que trustent other than the trustees themselves, and the grantee is a trustee ex maleficio as to the parties wronged; but the deed is a good and valid conveyance of the interests which the trustees themselves have in the land.
    Where testamentary trustees who have an interest in the trust estate convey the land for the purpose of paying their individual debts, and the grantee has knowledge of the illegality of the deed, the trustees cannot subsequently set up their own turpitude as a ground for invalidating the deed as to their individual interests, but as between themselves and the grantee the law will leave them where they have placed themselves.
    Argued March 16,1908.
    Appeals, Nos. 226 and 249, Jan. Term, 1901, by plaintiffs and defendant, from judgment of C. P. Sullivan Co., Sept. T., 1902, No. 49, on verdict in case of W. W. Jackson and Blanche W. Sturdevant, Trustees for the Devisees of Geo. D. Jackson, deceased, and W. W. Jackson, Administrator d. b. n. c. t. a. of the Estate of Geo. D. Jackson, deceased, and Mary B. Young, Alice Irving, Blanche W. Sturdevant and Ida Greene Jackson v. Kush J. Thomson and Walter B. Gunton.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Ejectment for land in Cherry township. Before Terry, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Plaintiffs presented this point:
    1. That under all the evidence in this case the verdict must be for the plaintiffs for the land described in the writ, with whatever mesne profits the jury may find the plaintiffs entitled to as damages for the use and occupation of said land by the defendants. Answer: This point is refused. This would be directing you to find for the plaintiffs for the whole undivided one-third, which would be contradictory of what we have already instructed you. We say you should find for the plaintiffs against Mr. Thompson for three-fifteenths of the land and for that proportion of the mesne profits, but it is for you to say whether there shall be recovery for more than that against him. [1]
    Defendants presented these points :
    That there is not sufficient evidence in the case of any breach of trust or fraud on the part of the executors of the last will and testament of George D. Jackson, deceased, in making the conveyance to the defendant, Kush J. Thomson, of the land in suit, on July 9, 1897, and that Kush J. Thomson and the Citizens’ National Bank of Towanda, Pennsylvania, or either of them, participated in such fraud or breach of trust, to warrant the court in decreeing a reconveyance or submitting the question of the validity of said conveyance to the jury. Answer : Refused. [2]
    4. That under all the evidence in the case the plaintiffs are not entitled to recover. Answer: Refused. [3]
    5. That under all the evidence in the case the verdict should be for the defendants. Answer: Refused, except as to the defendant Gunton. [4]
    The verdict of the jury was in favor of the plaintiffs and against the defendant, Rush J. Thomson, for three-fifths of the land described in the writ, being the undivided three-fifteenths of the tract of land described in the writ, and the sum of $24,055.35, in favor of the plaintiffs and against the defendant, Rush J. Thomson, for mesne profits.
    The judgment was entered against the defendant, Rush J. Thomson, and in favor of the plaintiffs for the sum of $24,055.35, with costs, and in favor of the plaintiffs for three-fifths of the land described in the writ, being the undivided three-fifteenths of the tract of land described in said writ.

      Errors assigned were (1-4) above instructions, quoting them.

      Pranlc W. Wheaton and Rodney A. Merev/r, with them 1. McPherson, for Rush J. Thomson.
    The will of George D. Jackson worked a conversion of his real estate into personalty: Willing v. Peters, 7 Pa. 287; Roland v. Miller, 100 Pa. 47.
    Conversion was effected at the death of the testator : Thomman’s Estate, 161 Pa. 444.
    Iiis legatees took no title to land, but only a right to the proceeds of land. They have no right to an ejectment: Evans’ Appeal, 63 Pa. 183.
    If all the beneficiaries had elected to take the land instead of the proceeds, their title would not have come through the will, but by virtue of their voluntary act: Mellon v. Reed, 123 Pa. 1.
    Such election must be made before actual sale and it must be the unequivocal act of all the parties interested: Willing v. Peters, 7 Pa. 287; Evans’ Appeal, 63 Pa. 183; Beatty v. Byers, 18 Pa. 105; Howell v. Mellon, 189 Pa. 169.
    The devisees of Bernice W. Jackson cannot set up the alleged breach of trust to defeat the title of the defendant, Rush J. Thomson: Kellerman v. Miller, 5 Pa. Superior Ct. 443; Bredin’s App., 92 Pa. 241; Pearsoll v. Chapin, 44 Pa. 9; Poor v. Robinson, 10 Mass. 131; Heard v. Hall, 33 Mass. 457; Washabaugh v. Entriken, 34 Pa. 74; Clark v. Martin, 49 Pa. 299; Barger v. Cassidy, 4 Phila. 324.

      Seth T. McCormick and P. J. Mullen, with them Al/phonsus Walsh, for W. W. Jackson et al.
    The appellants were not es-topped from recovering an undivided two-fifteenths of the land by reason of the fact that Bernice W. Jackson, one of the executors, had purchased the interest of W. W. Jackson and George C. Jackson in the estate of George D. Jackson, deceased.
    As the appellants do not claim under the deed in controversy, but through a prior-good title,'they are not estopped by the fraudulent deed, while the grantee, Thomson, party to the fraud, is estopped from defending under the deed : Seidenbender v. Charles, 4 S. & R. 151; Swan v. Scott, 11 S. & R. 155; Allebach v. Godshalk, 116 Pa. 329; Wooden v. Shotwell, 24 N. J. L. 789.
    A deed which is void and without validity cannot be made the basis of an estoppel: Booraem v. Wells, 19 N. J. Eq. 87; Smythe v. Henry, 41 Fed. Repr. 705; Pells v. Webquish, 129 Mass. 469; Smith v. Ingram, 130 N. C. 100 (40 S. E. Repr. 984); Dougal v. Fryer, 3 Mo. 40; Brick v. Campbell, 122 N. Y. 337 (25 N. E. Repr. 493).
    If the truth be known to both parties, or if they have equal means of knowledge, there can be no estoppel: Hill v. Epley, 31 Pa. 331; Paul v. Squibb, 12 Pa. 296; Jackson v. Summerville, 13 Pa. 359; Bright v. Allan, 203 Pa. 394; Garrard v. R. R. Co., 29 Pa. 154; Young v. Weed, 154 Pa. 316; Abbott’s Exec. v. Reeves, 49 Pa. 494; Cook v. Tullis, 85 U. S. 332; Wormley v. Wormley, 21 U. S. 421; Bank v. Tyler, 3 W. & S. 373; 1 Perry on Trusts (3d ed.), sec. 334; Kirkpatrick v. McDonald, 11 Pa. 387; Hill on Trustees, 506, 507.
    An estoppel can never be allowed where it would itself perpetrate fraud, work injustice or fail to protect the innocent, and it is essential to an estoppel that it would work an injury if the party alleged to be estopped should be permitted to set up his case: Hill v. Epley, 31 Pa. 331; Keefer v. Keefer, 9 Pa. Superior Ct. 53; Wright’s App., 99 Pa. 425; Sensinger v. Boyer, 153 Pa. 628; Stewart v. Parnell, 147 Pa. 523; Skiles v. Sides, 1 Pa. Superior Ct. 15; Hays v. Hays, 179 Pa. 277; Ormsby v. Ihmsen, 34 Pa. 462; Woods v. Wilson, 37 Pa. 379; Brubaker v. Okeson, 36 Pa. 519.
    The sale was collusive, without a valid consideration, and the appellant took the property with full notice of the illegal character of the transaction : Petrie v. Clark, 11 S. & R. 377; Garrard v. Railroad Co., 29 Pa. 154; Bayard v. Bank, 52 Pa. 232; Young v. Weed, 154 Pa. 316.
    October 5, 1908:
   Opinion by

Me. Justioe Beown,

George D. Jackson at the time of his death, November 23, 1879, was the owner of an undivided third interest in the land which is the subject of this ejectment. By his will, admitted to probate December 15, 1879, he devised his real estate to his executors in trust, with power to sell, and provided that, “ by and with the money or moneys proceeding from such sale or sales, or moneys in hand at the time of my decease, or collections made from debts and obligations due me in the first place to pay or discharge all of my just debts, and after such debts are fully paid then the residue and remainder of my estate shall be for the sole use and benefit of my dear wife as long as she shall live, and after her decease then to be divided equally share and share alike, amongst my children, viz.: Mary B., wife of J. W. Young, George G. Jackson, Alice E., wife of Thomas Irving, Willie W. Jackson, and Blanche Winnifred Jackson. But my wife may in her discretion, if she thinks best, and any of my said children need it, advance such sums to them or any of them as she thinks advisable, so as to be within the amount that would be coming to them as their share after her death, and which amounts so advanced shall be taken and deducted from their share to which that child would be entitled on the final settlement of my estate.”

On May 17, 1889, George O. Jackson, one of the sons, conveyed to his mother all of his interest in the estate of his father, and on February 5, 1898, W. W. Jackson, the other son, assigned his interest to her. On July 9, 1897, Bernice W. Jackson and George O. Jackson, as executors of George D. Jackson, conveyed his one-third interest in the land in controversy to Bush J. Thomson for the nominal consideration of $1.00. By deed dated April 12, 1899, Bernice W, Jackson, Mary B. Young, Alice E. Irving and Blanche W. Sturdevant, formerly Jackson, conveyed to Bernice W. Jackson, W. W. Jackson and Blanche W. Sturdevant, in trust, all of their interest in the real estate of the said George D. Jackson not theretofore sold by the executors, for the purpose, as expressed in said deed, of carrying out the will of the testator without an administrator in the event of the death of the said Bernice W. Jackson, the surviving executor, George O. Jackson, having died December 25, 1898. By this deed the trustees were empowered to sell or lease the real estate and hold the proceeds for the sole use of Bernice W. Jackson during her life, and after her decease to divide the same between the said Mary B. Young, Alice E. Irving, Blanche W. Sturdevant and Ida G. Jackson, the latter having been named by the parties in interest as one of the beneficiaries in the said deed of trust. If there was a conversion under the direction to the executors to sell, this deed, as was properly held by the learned judge below, reconverted into real estate so much of the land of the testator as had not been sold. This ejectment was brought by the surviving trustees in the deed of trust, W. W. Jackson, administrator d. b. n. c. t. a. of the estate of George D. Jackson, deceased, Mary B. Young, Alice E. Irving, Blanche W. Sturdevant, three of the children of the testator, and Ida Greene Jackson, and they seek to recover upon two grounds: (1) Thomson procured the deed from the executors by taking advantage of the confidence reposed in him by them as their relative, attorney and confidential adviser, and (2) the consideration for it was the individual indebtedness of the execiu tors due to Thomson or assumed by him. As to this second ground there was no conflict of testimony. Thomson admitted that the consideration included some individual indebtedness of George C. Jackson and $8,100 of individual indebtedness of the two executors to the Citizens’ National Bank of Towanda.

Under a charge entirely free from error and couched in clear language the jury found that Thomson had not taken advantage of any confidential relation existing between him and the executors, and that finding is binding upon us, though it might very fairly have been different under the evidence. It eliminates the only question of fact in the case. As a matter of law, the jury were instructed that, if they should find the deed had not been procured by Thomson through an abuse of confidence, it was, nevertheless, void as to the three-fifths of the testator’s interest devised to his three daughters, and a verdict was directed against him as to them. As to the other two interests a verdict was directed in his favor. No recovery was permitted against Gunton, as he was an innocent purchaser or lessee under Thomson. From the judgment on the verdict plaintiffs and Thomson have appealed.

The single question before us is the correctness of the court’s direction of the verdict. When Thomson and the executors were negotiating, it was manifestly, on his own admission, for the purpose of providing for the payment of their individual indebtedness, and when he took the deed from them he took it, at least in part, in consideration of his payment or assumption of such indebtedness. If he had not been a member of the bar, the law would presume that he knew he was taking from them a deed which they had not authority to execute and that in executing it they were attempting to divert trust funds under their control to their own individual use; but he was a lawyer of nearly forty years’ experience at the time, and it requires more than ordinary judicial patience to bear with him when he asks that the deed be declared to be good as to the three daughters and devisees of the testator, who had no part in its execution, and who will be grossly wronged by it, if permitted to stand as a valid title. As to them no sale was made, and the deed is utterly void in Thomson’s hands, for he took it with full knowledge that the executors or trustees had no authority to affect the interests of the three daughters by it, and was an active participant in the attempted, fraud upon them. One of his contentions on this appeal, apparently not raised in the court below, is that the deed ought to be sustained because the moneys received by the executors were used to make advances to one of the children of the testator. It is a sufficient answer to this to say that George O. Jackson had parted with his entire interest in the estate more than eight yea,rs before, and he had, therefore, no right to receive any advancements at the time the deed was made and have the same deducted from his share on the final settlement of the estate. Thomson admitted that he paid George a part of the consideration money for the deed. His testimony as to this is as follows : Q. Hid George O. Jackson get any money from the bank, about the time this conveyance in question was made, that was a part of the consideration of it. ' A. I think he did. Q. He got some money, cash, in addition to the judgments and matters that were paid for him ? A. Yes, sir; that is my recollection. I think there was one check, one or more checks, paid right to him. Q. Do you know what use he made of that money? A. No, I don’t. I can’t tell you that. Yes, I think I can ; I think he deposited it in bank, but what he did with it after that I can’t tell you.” This branch of the case is dismissed with the following from the court’s instructions to the jury : “ There is a well-settled rule of law which forbids executors from converting property of an estate they represent to their own use. They cannot, therefore, pledge or sell it for their individual indebtedness. "When they do so, to one who has knowledge that such use of the estate property is being made, such transfer may be voided by the persons .to whom the property really belongs, that is, by the heirs or devisees. In such case the executors and the persons acquiring the property are equally culpable. If land is the subject of such a transaction, the one to whom it is thus conveyed, having knowledge of the illegal transaction, does not take a good title as against the persons thereby wronged. . . . The applicability of this rule of law to the case on trial we will now make known to you. The undivided one-third interest in this 102-acre tract of land belonged to George D. Jackson. The legal title thereto passed by his will to his executors in trust, as we have already explained. The executors held that title for the purpose expressed in the will. They were the trustees of the devisees, and the beneficial interest in this land belonged to such devisees. When the executors assumed their duties as such they were bound to act in good faith towards those devisees. If the executors conveyed this interest in this land to Mr. Thomson in payment of, or as security for, their individual indebtedness to him or others, they committed a breach of trust. If he took the conveyance with that understanding and agreement he was equally engaged in wrongdoing. Under such circumstances the transaction would be in violation of the rights of such persons, having an interest in the land, as did not join in the conveyance; and it is immaterial whether it was part of that bargain that the deed to Mr. Thomson was also to secure an indebtedness of George D. Jackson’s estate. In this respect the transaction was indivisible, and if fraudulent in part it is, as to the parties defrauded, wholly invalid. The taint of fraud in converting the trust property to the individual use of the executors, so far as innocent devisees are concerned, would attach to the instrument as a whole and destroy its efficacy as a transfer of their beneficial interest in' the land. If this deed was taken by Mr. Thomson as security for, or in payment of, the individual debts of the executors, he is, as to the parties thereby wronged, a trustee ex maleficio. On this point there is no conflict of testimony. Mr. Thomson has testified, and therefore admits, that in the consideration passing from him to the executors for the deed for the 102-acre tract, and the other conveyances then obtained by him, there was included some individual indebtedness of George O. Jackson, to which reference has been made.”

As to the interests devised to the two sons, George O. and W. W. Jackson, and by them conveyed to their mother, a different situation is presented. Whatever interest in the land was held by George O. Jackson or his mother on July 9,1897, either could have sold and conveyed to Thomson. They were sui juris and could have done as they pleased with their own. If other persons had been named as executors they could have agreed that such executors should convey their interests to another, and when they themselves as executors made the conveyance, they must be regarded as having intended to convey whatever interests they owned. Thereafter neither of them could impeach the validity of the conveyance as to any interest owned at that time or subsequently acquired by them, or either of them. They had testamentary authority to sell, and neither of them as individuals could subsequently question their own exercise of it. Their conveyance, so far as it affected their interests, contravened no public policy. It was totally void in the hands of their grantee only as to the three-fifteenths of the land owned by the daughters, and the fraud attempted upon them has not been consummated, for the deed is still in Thomson’s hands. As to the remaining two-fifths neither Bernice W. Jackson nor George C. Jackson, if living, would be heard in alleging fraud as a ground for avoiding their deed. As they executed it they were bound by it, and where they placed themselves the law left them : Bredin’s Appeal, 92 Pa. 211, and those now representing them are in no better situation. In such a case the maxim nemo allegans suam turpitudinem audiendus est, is in full force, and Thomson is permitted to say “ In pari delicto melior est conditio possidentis.”

All of the assignments of error are overruled, both appeals are dismissed and the judgment is affirmed.