author: Mr. Justice Potter,

text:
    Yerger, Appellant, v. Hunn.

      Appeals — Equity—Brief statement of errors.

    1. Where the record of an appeal from a decree in equity fails to show that the appellant filed in the court below a brief statement of the errors alleged to have been made in the decree appealed from, as required by equity rule 92, the appeal may be quashed.
    ‘ Appeals — Assignments of error — Equity—Defective assignments.

    2. An assignment of error merely alleging that the court erred in sustaining the bill without setting forth the final decree, is insufficient.
    3. An assignment of error which merely alleges generally that the court below erred in dismissing defendant’s exceptions, without setting forth the exceptions is bad.
    4. An assignment of error which merely alleges that the court erred in refusing to consider requests for findings of fact, without setting forth the requests for such findings, is bad.
    5. An assignment of error complaining of the dismissal of an exception to a finding of fact as set forth in an extract from the opinion of the trial judge is bad, inasmuch as such action of the court is not properly assignable for error.

      Equity — Equity practice — Trial of two cases together.

    6. Where two bills in equity are tried together under an agreement of counsel that the evidence taken shall apply to both bills “ but that separate findings be submitted in each case,” and it appears that the testimony and the questions involved are the same, the court commits no error in filing but a single adjudication, if it finds the facts separately, and enters separate decrees.

      Equity — Findings of fad — Appeals—Evidence.
    7. The findings of fact by a trial judge in an equity case have the effect of a verdict of a jury, and if they are based upon sufficient evidence, will not be reversed in the absence of manifest error.
    Argued Jan. 18, 1911.
    Appeals, Nos. 237 and 238, Jan. T., 1910, by George W. Yerger, Jr., et al., from decrees of C. P. No. 3, Phila. Co., March T., 1909, No. 992, and Dec. T., 1908, No. 4,595, dismissing and sustaining bills in equity in cases of George W. Yerger, Jr., assignee of Jules E. Aronson v. Ezekiel Hunn, Jr., substituted trustee for Lydia J. Hunn under the will of Townsend Sharpless, deceased, and Ezekiel Hunn, Jr., substituted trustee for Lydia J. Hunn under the will of Townsend Sharpless, deceased, v. Jules E. Aronson, A. Florence Yerger and George W. Yerger, Jr., and William H. Yare, recorder of deeds.
    Before Fell, C. J., Brown, Mestrezat, Potter and Moschzisker, JJ.
    “Affirmed.
    Bill in equity for the cancellation of a deed.
    Bill in equity for the specific performance of a contract of sale. Before McMichael, J.
    From the record it appeared that on August 5, 1908, Ezekiel Hunn, Jr., trustee, entered into a written agreement with A. Florence Yerger, as agent for Jules E. Aron-son, for the sale of the premises at No. 1508 Arch street, Philadelphia, for the sum of $33,000, of which $500 was paid in cash at the signing of the agreement; $7,500 was to be paid at the settlement, and the balance of $25,000 was to remain on first mortgage, for three years. The .premises were to be conveyed “free and clear of all incumbrance and easements;” and the title was to be such as would be insured by any reputable title company of Philadelphia. The agreement was to be performed within sixty days of its date, which time was to be of the essence of the agreement, unless extended by mutual consent in writing indorsed thereon. It further appeared that the purchaser applied for a policy of title insurance, and the title insurance company issued its settlement certificate for the property which showed as exceptions not to be covered by the policy, that the premises were situated in the bed of the projected Parkway, on the city plan, and that they were subject to the terms of an ordinance for the widening of Arch street. The sixty days allowed by the agreement for settlement expired on October 4, 1908. It was arranged that the settlement should be made on October 3, at the office of the title company; but a postponement was made until October 6, and on that date there was a second postponement until the following day; but no settlement was then made. On October 9, the vendor tendered an excuted deed to the agent for the purchaser, but settlement was not made. The court below found as a fact that this was a legal tender of the deed to the representative of the defendant. No agreement in writing to extend the time of settlement, as required by the terms of the contract, was shown. On November 20,1908, Jules E. Aronson executed and delivered to George W. Yerger, Jr., an assignment of all his right, title and interest in the agreement of sale with Hunn, trustee; and this assignment was filed in the office of the recorder of deeds at Philadelphia. On February 8, 1909, Ezekiel Hunn, Jr., substituted trustee for Lydia J. Hunn under the will of Townsend Sharpless, deceased, filed a bill in equity in the court of common pleas, No. 3, of Philadelphia county against Aronson, Yerger, et al., praying that the assignment by Aronson to Yerger should be surrendered and cancelled and marked null and void on the record. On March 10,1909, George W. Yerger, Jr., assignee of Jules E. Aronson, filed a bill in equity against Ezekiel Hunn, Jr., trustee as above, praying for specific performance of the agreement of sale. This bill was filed in court of common pleas, No. 3, and the two cases were put at issue and tried together. The trial judge filed his adjudication, findings and opinion in the former case, and sustained the contention of Ezekiel Hunn, Jr., substituted trustee, etc., and held that the assigned agreement should be surrendered, and canceled on the record. Exceptions were filed on behalf of the defendants, and were dismissed by the court, and a final decree made on July 12, 1910,- in accordance with the findings of the trial judge.
    It was the intention both of the court and of the parties, that the adjudication, findings, exceptions and order dismissing them, should apply to both cases; and in accordance with this understanding, the bill praying for specific performance of the agreement was dismissed. Appeals were taken by the defendants in the former case, and by the plaintiff in the latter case, the former appeal being No. 238, and the latter No. 237, of the present term. The appeals involved the same questions, and were argued together.

      Errors assigned in No. 238 were as follows: (1) The court below erred in sustaining the bill in equity filed by the plaintiff; (2) the court below erred in dismissing the exceptions filed by the defendant to the findings of fact and to the opinion of the court; (3) the court below erred in refusing to consider the findings of fact filed by the defendants on February 7,1901; (4, 6, 7, 11) dismissal of exceptions to findings of fact; (5) dismissal of an exception to a finding of fact set forth in an extract from the opinion of the trial judge, quoting the extract.

      Errors assigned in No. 237 were substantially the same as in 238 except (10) which was as follows: The court below erred in dismissing the thirteenth exception filed to findings of fact, and to the opinion of the court, as follows:
    The learned trial judge erred in confusing together and treating as one suit, the case of Ezekiel Hunn, Jr., substituted trustee for Lydia J. Hunn, under the will of Townsend Sharpless, deceased, Jules E. Aronson, A. Florence Yerger, George W. Yerger, Jr., and William H. Yare, recorder of deeds, C. P. No. 3, December Term, 1909, No. 4,595, and the case of George W. Yerger, Jr., assignee of Jules E. Aronson, plaintiff, Ezekiel Hunn, Jr., substituted trustee for Lydia J. Hunn, under the will of Townsend Sharpless, deceased, defendant, C. P. No. 1, March Term, 1909, No. 992, the agreement between counsel in said cases being as follows:
    April 10, 1911:
    "It is agreed by counsel for plaintiff and defendant that the evidence taken here shall apply to both bills, but that separate findings be submitted in each case.”

      A. Florence Yerger, with her John McClintock, Jr., for appellant.

      John O. Johnson, with him James Wilson Bayard, for appellee.
   Opinion by

Mr. Justice Potter,

We have here two appeals, from decrees entered by the court below in separate cases, upon the same finding of facts. One of the bills filed prayed for the cancellation and surrender of an article of agreement, for the sale of real estate, and for an injunction to prevent it from being recorded. The other bill prayed for the specific performance of the contract of sale. It appears from the record that time was of the essence of the contract, and that settlement was not made by the proposed purchaser within the limit fixed by the agreement. The court below found as a fact that the vendor stood ready and willing to perform his part of the agreement, and tendered an executed deed to the representative of the purchaser. He dismissed the contention of the appellants, that they were not obliged to make settlement until certain defects in the title were made good, by the finding that these objections were not suggested, or relied upon at the time; but that, for some other undisclosed reason, the purchaser was unwilling to perform his agreement to take the property. It is apparent that the material questions before the trial judge were of fact, rather than of law.

We are unable to find from the record that appellants have filed in the court below in either case, a brief statement of the errors alleged to have been made in the decree appealed from, as required by equity rule 92. This omission would be sufficient ground for quashing the appeals: Wilson v. Keller, 195 Pa. 98; North v. Pantall, 197 Pa. 303; Hughes v. Cooper, 42 Pa. Superior Ct. 594.

In the appeal at No. 238 the first assignment of error is bad in that it merely alleges error in sustaining plaintiff’s bill, without setting forth the final decree: Johnston’s Estate, 222 Pa. 514. The second assignment is defective in that it merely alleges generally, that the court erred in dismissing defendant’s exceptions, and does not set them forth. The third assignment is bad, in that it alleges error in refusing to consider requests for findings of fact, and does not set forth the findings. The fourth, sixth, seventh and eleventh assignments are to the dismissal of exceptions filed by defendants, to the findings of fact by the trial judge. These findings were based upon evidence which, if credited by the trial judge, was sufficient to sustain them; and under the authorities they are to be given the effect of a verdict of a jury, and will not be reversed in the absence of manifest error: Myers v. Coal Co., 228 Pa. 444; Sears v. Trust Co., 228 Pa. 126. In the fifth assignment, complaint is made of the dismissal of an exception to a finding of fact as set forth in an extract from the opinion of the trial judge. This is not properly assignable for error: Seltzer v. Boyer, 224 Pa. 369.

In the appeal at No. 237 the assignments are subject to much of the criticism applicable to those in the other appeal. The tenth assignment alleges that the court below erred in dismissing an exception to the effect that the trial judge was in error in confusing, and treating as one suit, the two cases of Hunn v. Aronson, and Yerger v. Hunn, the agreement of counsel being “that the evidence taken here shall apply to both bills, but that separate findings be submitted in each ease.”. It is true that the trial judge filed but one adjudication, although the facts under each bill were found separately. It would have been better practice to have filed separate adjudications. But the testimony was the same, as were the questions involved, and separate decrees were entered. We do not see that the appellants were in any way harmed by the filing of one adjudication instead of two. The cases in every material respect turn upon questions of fact which have all been determined, upon sufficient evidence, by the court below, in favor of the appellee.

The assignments of error are all dismissed, and the decree of the court below in each case is affirmed.


source: Caselaw Access Project

author: Mr. Justice Mestrezat,

license: Public Domain

text:
    Sheaff’s Estate.

      Trusts and trustees — Will—Termination of trust.

    1. Where a testator directs his executors to pay a sum stated annually to his wife out of the rents of a specified piece of real estate until the property is sold, when a sufficient sum is to be set aside in good securities to produce the annuity to the wife, and the executors sell the specified real estate and invest a portion of proceeds in other real estate, and the title is taken in the name of one of the executors who executes a deed of trust declaring that she holds the property to secure the annuity to testator’s widow for life “and after her decease for the use and behoof of the residuary devisee” of testator, and it appears that by the terms of testator’s will the securities for raising the annuity were given to testator’s children after the decease of the widow, with no direction that the security should be sold or converted by the trustee, the trust ends immediately upon the death of the widow, and if thereafter the trustee dies, a substituted trustee will not be appointed.
    2. In such a case no formal conveyance from a trustee is required to vest the legal title in the residuary devisees. Equity will treat the conveyance as having been made, and the devisees as owners may sell and convey, and the purchaser will take a title free and discharged from the trust.
    Argued Jan. 18, 1911.
    Appeal, No. 266, Jan. T., 1910, by John D. Sheaff, from decree of C. P. No. 5, Phila. Co., June T., 1910, No. 2,189, appointing trustee in estate of George Sheaff, deceased.
    Before Fell, C. J., Brown, 'Mestrezat, Potter and Moschzisker, JJ.
    Reversed.

      April 10, 1911:
    Petition for the appointment of a trustee. Before Staake, J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree appointing trustee.

      Horace M. Rumsey, for appellant.
    An active trust, having no object to accomplish for the benefit of the cestui que trust, clearly will not be continued for the mere benefit or pleasure of the trustee. The object . . . . having failed or ceased, the law will execute the use: Owens v. Naughton, 23 Pa. Superior Ct. 639; Dodson v. Ball, 60 Pa. 492; Kinsel v. Ramey, 87 Pa. 248; Carson v. Fuhs, 131 Pa. 256; Marsh v. Platt, 221 Pa. 431; Yarnall’s App., 70 Pa. 335.
    A formal conveyance by the substituted trustee is unnecessary: Barnett’s App., 46 Pa. 392; Bacon’s App., 57 Pa. 504; Westcott v. Edmunds, 68 Pa. 34; Chamberlain v. Maynes, 180 Pa. 39; Rockhill’s Est., 29 Pa. Superior Ct. 28.
    Where the statute executes the trust, there is no necessity for a conveyance. Such a conveyance is a matter of form rather than of substance. The transfer is effected by the operation of the statute of uses: Renziehausen v. Keyser, 48 Pa. 351; Bacon’s App., 57 Pa. 504; Westcott v. Edmunds, 68 Pa. 34; Chamberlain v. Maynes, 180 Pa. 39; Rockhill’s Est., 29 Pa. Superior Ct. 28.

      Eli Kirk Price, for appellees.
    The trustee in this case has active duties to perform and the appointment of a new trustee was therefore proper: Owens v. Naughton, 23 Pa. Superior Ct. 639.
   Opinion by

Mr. Justice Mestrezat,

By his will, George Sheaff directed his executors to pay his wife $3,000 per annum out of the rents of his Black Bear estate until the property was sold when a sufficient amount of the purchase money was to be invested by the executors in some good security or securities which would produce that sum. The residue of the purchase money was directed to be divided among his six children. If the property was not sold during the life of his wife, he devised it to his children at her death. The will then provides: “That the said security or securities for raising the said annual sum of three thousand dollars, after the decease of my said wife shall go to and be divided share and share alike among” his children.

Under the authority contained in the will, the Black Bear estate was sold by the executors during the lifetime of the widow. To secure to her the payment of the $3,000 per annum, the property at the southeast corner of Twenty-third and Ludlow streets, Philadelphia, was purchased at the price of $10,000 which was paid by the executors. Title was taken in the name of Ellen Sheaff, a daughter and one of the executors of the testator, who, on July 11, 1859, executed a declaration of trust in the following words: “I do hold the said indenture and the premises at the corner of Twenty-third and Barker streets, thereby eonveyed for the sole use and behoof of the Estate of George Sheaff, deceased, the whole amount of the purchase money, namely, ten thousand dollars, having been paid by the executors of the said George Sheaff, and the proceeds of the said premises when sold, and the issues and profits thereof until then, to be held by me, in trust, to secure in the first place, the sum of three thousand dollars annually to Mrs. A. C. Sheaff during her life, and after her decease for the use and behoof of the residuary devisees under the will of the said George Sheaff, deceased.”

The widow died in January, 1865. Ellen Sheaff, the trustee, held title to the property, until her death in February, 1909. The $3,000 derived from the revenues of the trust estate were paid annually to the widow during her lifetime.

Ellen F. Gregg presented a petition to the court below on June 28,1910, praying for the appointment of a trustee in place of Ellen Sheaff, deceased, “to execute the trusts” under the declaration of trust. John D. Sheaff, one of the residuary devisees, filed an answer in which he alleged that the trust had terminated upon the death of the widow and, therefore, there were.no active duties to be performed by a trustee, that the trust was executed and the appointment of a substituted trustee was unnecessary and would accomplish no purpose.

The court below granted the prayer of the petition and appointed a trustee. John D. Sheaff has appealed.

The right of the residuary devisees to the property in question does not depend on the declaration of trust. That was created as a means to an end. The will of George Sheaff fixes the status of the property and determines the parties entitled thereto. Pursuant to authority contained in the will the executors sold the Black Bear estate before the widow’s death and invested a part of the proceeds to secure the widow’s annual income. They made the investment by purchasing the Twenty-third and Ludlow streets property and the declaration of trust so declares. This was the “security” purchased in pursuance of the provisions of the will for the purpose of raising the widow’s annual payments. As long as she lived, the trust was an active one. The trustee had control of the property and' collected the rents and paid therefrom $3,000 annually to the widow. At her death the will made specific provision as to the disposition of this investment. It provides: “I do further provide that the said security or securities for raising the said annual sum of three thousand dollars, after the decease of my said wife shall go to and be divided share and share alike among” his six children. The residuary devisees, therefore, became entitled immediately to the property in question on the death of the widow. It is immaterial that it is real estate or is held in trust. The purpose of the investment was to carry out the provisions of the will, and the declaration of trust declares that the proceeds of the property and the issues and profits thereof are held after the widow’s decease “for the use and behoof of the residuary devisees under the will of the said George Sheaff, deceased.”

It is clear that the trust terminated on the death of the testator’s widow. The only purpose of its creation was to provide an annual sum for her during her lifetime, and when that purpose was fulfilled, the trust ceased, and the principal of the investment, made to accomplish the purpose, went immediately to the residuary devisees. The trustee was no longer needed to protect and preserve the estate for the cestui que trustent, and the will did not direct that the security should be sold or converted by the trustee; on the contrary, it specifically provided that the security should “go to and be divided” among the testator’s six children. Whatever securities were taken or in whatever form they were taken, they belonged immediately to the children on the death of Mrs. Sheaff. It follows, therefore, that the title to the real estate in question became vested in the residuary devisees at the death of the widow. The terms of the trust produced a like effect. The trust having terminated, the statute executed the use and the legal estate became vested in the cestui que trustent. The language of Black, C. J., in Rush v. Lewis, 21 Pa. 72, may be applied here (p. 76): “After the death of Mrs. Rush, the purposes of the trust were satisfied, and the legal estate vested in the cestui que use by the mere force of the statute. If it had not been made the duty of the trustee to receive and pay over the profits to the first taker of the beneficial interest, they never would have had an estate in it. This reason ceased at her death and so did the estate.”

It follows that no formal conveyance from the trustee is required to vest the legal title in the residuary devisees. Equity will treat the conveyance as having been made. “It does not admit of a doubt,” says Mitchell, J., in Chamberlain v. Maynes, 180 Pa. 39, 42, “that a court of equity would have decreed a conveyance of the legal title to the cestui que trust, and where that is the case the trust will be considered as executed without a formal conveyance by the trustee.”

The title to the property being in the devisees, there was no occasion for the appointment of a substituted trustee for any purpose. The owners can sell and convey, and the purchaser will take a title free and discharged of the trust.

The decree of the court below is reversed, and the petition and all proceedings thereon are dismissed at the costs of the appellees.


text:
    Freas’s Estate.

      Trusts and trustees — Title to trust property — Title in trustee’s name— Option to cestui que trust.

    1. Where a trustee takes title to trust property in his own name as an individual, the cestui que trust has the option to accept the investment or require the trustee to account for the purchase money with interest.
    2. The rule is applicable to a trust company which takes title to trust property in the name of its president, and permits the latter’s declaration of trust to remain unrecorded for four years.
    3. In such case where it appears that the trustee originally invested the trust money in a mortgage, and that thereafter it was compelled to buy in the mortgaged premises at a loss, the mere fact that title is taken in the president’s name will not make the trustee liable for the loss, or for delinquent taxes, liens and costs which had accrued prior to or as a consequence of the sale, in the absence of any evidence that the loss was due to the negligence of the trustee.
    Argued Jan. 19, 1911.
    Appeal, No. 307, Jan. T., 1911, ,by Philadelphia Trust, Safe Deposit & Insurance Company, trustee, from decree of O. C. Phila. Co., April T., 1887, No. 311, sustaining exceptions to adjudication in estate of Philip R. Freas, deceased.
    Before Fell, C. J., Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Modified and affirmed.
    Exceptions to adjudication.
    The opinion of the Supreme Court states the facts.

      Errors assigned were in sustaining exceptions to adjudication.

      April 10, 1911:

      Charles Townsend, of Townsend, Elliott & Townsend, and John G. Johnson, for appellant.
    A trustee cannot be surcharged on the loss sustained by investment in mortgages where he has to foreclose and buy in the mortgaged properties when he has exercised ordinary prudence in making the investment: Gouldey’s Est., 201 Pa. 491; Rawlings’ Est., 13 Phila. 337.

      Paul Reilly, with him James F. Friel, T. Truxtun Hare and Henry B. Hodge, for appellee.-
    It is a breach of trust for a trustee to permit title to trust property to be in some one other than itself as trustee; and in such case the cestui que trust has the right to elect to take the property or the cash invested in such property: Luken’s App., 7 W. & S. 48; Morris v. Wallace, 3 Pa. 319; Dietterich v. Heft, 5 Pa. 87; Stanley’s App., 8 Pa. 431; Royers’s App., 11 Pa. 36; Robinett’s App., 36 Pa. 174; Norris’s App., 71 Pa. 106; Smith’s Est., 16 Phila. 308; Noble’s Est., 178 Pa. 460; Carr’s Est., 24 Pa. Superior Ct. 369.
   Opinion by

Mr. Justice Mestrezat,

This case arises out of the adjudication of the account of the Philadelphia Trust, Safe Deposit & Insurance Company, trustee for Imogen N. Freas, under the last will and testament of Philip R. Freas, deceased.

The facts of the case, as found by the learned court below, may be summarized as follows: On February 16, 1887, the trustee invested $1,800 of the trust funds in a bond and mortgage secured upon premises 3606 Melon street, Philadelphia. It took the security properly in its own name as trustee. Subsequently the trustee foreclosed the mortgage and on March 6, 1893, authorized or permitted the sheriff to make a deed for the property to William L. DuBois, then an officer and since the president of the company. The consideration of the deed was $1,500, being the amount bid by Mr. DuBois at the sheriff’s sale. This consideration, however, was never paid in fact. The trustee paid the expenses of the sale and claims credit for them in the account. Forty-four days later, April 19, 1893, Mr. DuBois executed and acknowledged a declaration of trust wherein he stated that he held the premises as trustee for the trustee company for the purposes of the trust contained in the will. About four years later, on March 30, 1897, the declaration of trust was filed of record. Therefore, for a full period of four years the trustee company permitted the record title of this property to remain in the name of its officer and agent, Mr. DuBois, without any other earmark than the irregular declaration of trust retained among its own files. During the period the trustee company collected the rents of the premises and charges itself with them in its account. It likewise expended various sums for maintenance and repairs for which it claims credit. How the leases were drawn does not appear.

The account included premises No. 3606 Melon street as an asset of the estate, and the legatee excepted and asked that $2,160.37 in cash be substituted as an asset, for the real estate, that being the amount represented by the property in the account. The legatee contends that the action of the trustee in having the title of the property taken in the name of another party was a breach of trust which gave the legatee the option to take the property or require the trustee to account for the mortgage debt with interest. The auditing judge overruled the exception and directed a transfer of the property by the trustee to the managers for the relief and employment of the poor of the township of Germantown, the legatee and party entitled to the property or the cash substituted for it. The ruling of the auditing judge was reversed by the court in banc, and the sum of $2,160.37 with interest was substituted for the Melon street property. We have this appeal by the trustee.

For more than half a century this court has invariably held that where a trustee takes title to trust property in his own name as an individual, the cestui que trust has the option to accept the investment or require the trustee to account for the purchase money with interest. This rule has never been departed from and the decisions dealing with the subject give ample reasons for sustaining and enforcing it. The cases on the subject are numerous and all announce the same doctrine. We need not, therefore, discuss the question as it is the settled law of the state and we now see no reason for departing or deviating from it in any manner whatever. The learned court below was clearly right in enforcing the rule in this case.

But we cannot agree with the court’s conclusion as to the amount for which the trustee-should account. The loan was made by the trustee on a bond and mortgage taken in its own name. It became necessary to foreclose the mortgage in order to collect the loan. Thus far the trustee had acted properly and in the line of its duty. There is no allegation that it had acted in bad faith, or so far as the testimony discloses it does not appear that the trustee did not believe the property to be ample security for the loan at the time it took the mortgage. The evidence does not justify the court in holding that there had been any dereliction of duty on the part of the trustee in making the loan, in securing it by the bond and mortgage, or in foreclosing the mortgage. If the sheriff had conveyed the property to the trustee, instead of a third person, we think there would be no evidence to show that the trustee had not performed its duty throughout the transaction. The orphans’ court very properly held that the sheriff’s title should have been taken in the name of the trustee, and that it was not so taken is the only error which the trustee made and for which it is responsible in this, proceeding. It should, therefore, account, not for the; amount of the mortgage and its interest, but for the value of the property which was given to secure the loan and on which the mortgage was taken. The property was sold at the sheriff’s sale for $1,500, $300 less than the face of the mortgage. It does not appear that there was collusive bidding or that this was not a fair price for the property at the time of the sale. In the absence of anything to the contrary we must presume that such is the case. There is no evidence that would warrant any other conclusion. If such evidence had been produced, and it had appeared that the property was more valuable, or that a greater sum was not obtained for it by reason of the conduct of the trustee, the latter would be held to account for its full value. We, therefore, think the court was in error in allowing the legatee the amount of the mortgage with interest, and should have allowed it the price at which the property was sold with interest.

The trustee having acted in good faith and having performed its duty up to the time of the sale of the property we can see no reason for charging it with the delinquent taxes, liens and expenses of salé. They were not incurred by reason of the trustee’s failure to take the sheriff’s title in its name. That failure of duty in no way affected the expenses of foreclosing the mortgage. Had the title been taken in the name of the trustee, the taxes, liens and expenses- of foreclosure would unquestionably have been paid out of the trust estate. The subsequent error in taking the title in the name of the third party affords no sufficient reason for imposing those expenses on the trustee.

For the reasons stated we must sustain the assignments of error to the extent indicated. The trustee should be charged with $1,500 and interest, and $91.75 for permanent improvements, and allowed a credit for $268.62, the amount of the delinquent taxes, liens and costs. With this modification the decree of the court below is affirmed.


text:
    Roebling’s Sons Company v. American Amusement & Construction Company, Appellant.

      Practice, C. P. — Trial—Continuance—Amendment—Discretion of court.

    1. The propriety of continuing a case after the allowance of an amendment of the statement, when the defendant has pleaded surprise, is a matter within the discretion of the trial judge which is not reviewable in the appellate court, except where abuse of discretion is shown.

      Evidence — Letter—Invoice—Set-off.
    2. In an action to recover the price of machinery where it is not denied that the machinery was furnished, and the defense is in the nature of a set-off, it is not error for the trial judge to admit in evidence an invoice containing an itemized statement of the amount claimed, where such invoice is referred to in a letter previously admitted without objection and forming the basis of the action.
    3. In such a case where the letter stated that the plaintiffs proposed to furnish certain machinery, as shown by blue prints, it is not error to refuse to permit the defendant to show that no blue prints were received or seen by the defendant prior to the date of the acceptance of plaintiffs’ proposition. It was the duty of the defendant if he did not receive the blue prints to so notify plaintiff and wait until he did receive them before accepting the offer.
    4. The court in such a case commits no error in excluding evidence bearing upon the measure of damages to be allowed the defendant in case the set-off is established, where the verdict of the jury shows that plaintiff’s whole claim was allowed, and that there was in consequence no breach of the contract.

      Contract — Sale—Warranty—Implied warranty — Special purpose.

    5. The principle of an implied warranty is not applicable to an order specifying articles of a given weight, size and material, to be manufactured according to specified plans; and this is the case although the articles are intended to be marshaled as machinery.

      Practice, C. P. — Evidence—Objection—Appeals.
    6. A party complaining on appeal of admission of evidence in the court below will be confined to the specific objection there made to it.
    Argued Jan. 19, 1911.
    Appeal, No. 344, Jan. T., 1910, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1904, No. 4,153, on verdict for plaintiff in case of John A. Roebling’s Sons Company of New York v. American Amusement & Construction Company.
    Before Fell, C. J., Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit for goods sold and delivered. Before Wilt-bank, J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial plaintiff made the following offer:
    Mr. Rawle: I want to offer in evidence a letter from plaintiff to defendant, dated April 17. I have called for the original.
    Mr. Brown: Before that offer is passed upon I will call upon counsel for plaintiff to state whether or not he is suing upon this letter or upon the parol contract.
    Mr. Rawle: I am suing on this letter.
    Mr. Brown: I object because it is not so set forth in the statement of claim.
    Counsel for plaintiff moves for leave to amend the statement of claim. Motion allowed.
    Counsel for defendant moves for a continuance on the ground of surprise.
    Motion overruled. Exception noted for defendant. [1]
    Counsel for plaintiff offers in evidence the letter.
    Objected to, it not having been declared upon, and counsel for plaintiff having stated this contract upon which suit is brought is not set forth in the statement of claim.
    Objection overruled. Exception noted for defendant. [2]
    The letter read as follows:
    April 17th, 1903.
    “American Amusement & Construction Company, “Thomas J. Ryan, President,
    “No. 406 Girard Trust Building, Phila., Pa.
    “Proposition on Machinery, &c.
    “Dear Sir:
    “We herewith revise our letter of the 16th inst. to make things a little bit clearer, in connection with our proposition to furnish machinery for your coal mine at Willow Grove Park.
    “We propose to furnish winding machinery complete as shown on our B-P, including tension carriage and additional length of shafting to receive the driving pulleys, but do not include the pulleys, on which we will make you prices later. We also include 2-36 inch guide wheels for the ends of incline with their shafts and bearings complete and 20-4x4 wide mouth track rollers complete with shafts and bearings, including 2 extra guide wheels, 12 inches diameter, with shafts and bearings, for tension carriage, in case you need same to lead counter weight from tension carriage, in preference to making hole in the-ground. This makes the winding machinery complete, less the pulleys and motors, for the sum of $939.00.
    “We propose to furnish you 8 grip cars with grip and 2 shoe brakes, all lever connection for operating grip and brakes, all complete, less body for $175.00 each. 16 trailers all complete at $85.00 each. The trailers and grip cars are each fitted with 2 steel pointed dogs, to prevent same from running down the incline backwards.
    “We will also supply you % inch diameter 19 wires to the strand, plough steel wire rope at 20c. per ft. less a discount of 45 & 234 per cent. 134 inch x 34 inch iron for track at 3.6c. per ft. of iron, cut at angles on the end and drilled every 9 inches for screws.
    “We do not know the exact length of rope required or the amount of iron for track, but assuming 500 ft. of rope and 4000 ft. of iron, the total cost of plant to you would be about $3,913.00.
    “25 per cent, of this amount to be paid on signing of contract would amount to about $980.00-50 per cent, to be paid when goods are delivered and the balance when plant is put in operation.
    “This total sum price is approximate, owing to the fact that we do not know the length of track iron or rope required.

      “If the above terms are satisfactory to you, we will proceed to ship material at the earliest possible date.
    “Yours very truly,
    “ John A. Roebling’s Sons Co. of N. Y.
    Mr. Rawle:“Q. State whether or not that is the invoice referred to in this letter of July 25th, 1903. [Paper shown witness.] A. That is the invoice referred to.” Counsel for plaintiff offers the invoice in evidence. Objected to. Objection overruled. Exception noted for defendant. [ 3 ]
    The invoice read as follows:
    “To Winding Machinery as agreed..... $939.00-
    8 Automatic Grip Cars at $175.00
    each.......................... 1,400.00
    16 Trailer Cars at $85.00 each...... 1,360.00
    '3800 ft. 134" x ^¿" Iron Track at 3-6
    10c. foot..................... 136.80
    830 lbs. 134" x yi" Iron Track Bent
    at 53/8c. lb..................... 47.73
    2 — 43/8" dia. shafts............... ....
    1— 27-16" dia. shafts.............. ....
    2— Collars....................... 45.03
    2 — 48" Spur Gears............... ....
    1 — 12" Pinion Gear............... 88.50
    3 Pairs Wedges for Automatic Grip. . 19.50
    1 — 30" sheave with shafts & bearings, no charge
    900 ft. No. 10 Plough Steel Rope (2 pcs. 450 ea.) dia. at 26c. 234.00 45 & 234% 108.52
    -$125.48
    3 Trips Engineer to Willow Grove, Pa.
    Time & Expenses, no charge
    $4,162.04
    on ac. 980.00
    $3,182.04”'

      Mr. Arclibald: I propose to show that no blue prints of any kind showing the machinery in question were received or seen by the defendant company prior to the date of the acceptance of the plaintiff’s proposition.
    Mr. Rawle: I object that a party accepting an offer to furnish machinery according to blue print, cannot be heard to say at this date that he never saw the blue print.
    The Court: Your point is that he ought to have given notice whereas blue prints are mentioned in the letter, that he had not received them, and to wait before he accepted the offer.
    Objection sustained. Exception noted for defendant. [4]
    Mr. Archbald: 1 offer to show by the witness on the stand that the track furnished by the plaintiff company was so light and the trucks for the cars furnished by the plaintiff company were so heavy, that when the trucks were put in operation on the tracks the pounding of the tracks by the trucks, particularly on the curves, threw the gauge of the track out of adjustment, so that labor and money had to be expended in readjusting the gauge until such time as they could procure and lay T rails of a different form on those curves; also to show by the witness the expense of doing the labor of readjusting, also the expense of replacing this track with T rails.
    Mr. Rawle: Objected to upon the ground that we did not furnish the car bodies but only the trucks, and that the weight of the structure, which is called a car, consisting of car bodies and trucks, is that which pounded, and not the trucks alone; also that the contract calls for a specific dimension of strap iron and that was furnished, and a specific truck construction, and that was furnished.
    Objection sustained. Exception noted for defendant. [10]
    Mr. Rawle: “Q. Assume an inclined plane in the Willow Grove Park where you now testify you once rode on the device. Take the grade of the incline and what you saw it to be. Assume cars and trucks considerably heavier than those you rode upon, and you may assume that they weighed 800 pounds apiece. Assume that there were three of such, and only three, and each one carried four passengers of average weight, and only four. Assume also that there was never a load on this lifting machinery of more than one train consisting of three cars with their load, at any one time. Consider also the blue print before you, showing the hoisting mechanism, and then state whether or not, in view of these facts, the friction drive method shown on that blue print is a proper mechanical device and suitable for doing the work of that inclined plane, as I have stated it in my question, and a recognized method in mechanical engineering.”
    Objected to on the ground that the contract provides for grip cars and trailers. Objection overruled. Exception noted for defendants. [12]
    "A. I will have to make some calculations. We had three cars weighing 2,400 pounds. The device shown on the blue print would be perfectly capable, if properly adjusted, to transport sufficient power to hoist the assumed load up the incline.”
    Verdict and judgment for plaintiff for $4,496.44. Defendant appealed.

      Errors assigned were (1-12) various rulings on evidence, quoting the bill of exceptions.

      R. W. Archbald, of Ehrlich & Archbald, and Francis Shunk Brown, of Simpson & Browti, for appellant.
    The refusal of a continuance after allowing a material amendment in the contract on which plaintiff claimed, was error: Rowland v. Philadelphia, 202 Pa. 50; Minnich v. Lancaster & Lititz Elec. Ry. Co., 203 Pa. 632; Goodman v. Coal Township, 206 Pa. 621; Sturzebecker v. Inland Traction Co., 211 Pa. 156.

      Francis Rawle, with him Guilliaem Aertsen, Jr., for appellee.
    -As mistakes made in the use of a judge’s discretion cannot be assigned for error, they cannot be reached and corrected, unless an abuse of this power be alleged: Schrimpton v. Bertolet, 155 Pa. 638; Smith v. Times Pub. Co., 178 Pa. 481.
    April 10, 1911:
   Opinion by

Mr. Justice Potter,

It appears from the evidence in this case that on April 17, 1903, Roebling’s Sons Company sent to the American Amusement & Construction Company, a letter containing an offer to furnish certain machinery needed, which was specified in detail, for the total price of $3,913. The letter referred to blue prints (B. P.) which had previously been submitted to representatives of the defendant company. On April 21, 1903, Thomas J. Ryan, president of the amusement company, wrote a letter to Roebling’s Sons Company, accepting the proposition to furnish the machinery, and inclosing check for the amount of the initial payment required. The machinery was completed and delivered by May 29, 1903, and subsequently a bill was rendered, which showed a balance of $3,182.04 due Roebling’s Sons Company. Payment was refused by the defendant company, upon the ground that the machinery was not properly made, and could not be operated without alterations which caused expense and delay. Upon the trial counsel for plaintiff offered in evidence the letter above referred to, containing the proposition to furnish the machinery, which letter had been produced by defendant on call. In response to an inquiry from the other side, plaintiff’s counsel stated that he was suing on the letter; that is, upon the contract set forth in the letter. Objection was then made to the offer because it was not set forth in the statement of claim. On motion, counsel for plaintiff were then permitted to amend the statement. A motion by defendant then followed, for a continuance on the ground of surprise, which was overruled. To this action of the trial court, counsel for defendant excepted, and have made it the basis of the first and second assignments of error. The propriety of continuing the case after the allowance of an amendment, when the defendant has pleaded surprise, is a matter within the discretion of the trial judge. This principle was laid down in Folker v. Satterlee, 2 Rawle, 213, and was reaffirmed with some elaboration by Mr. Justice Sargeant in Tassey v. Church, 4 W. & S. 141, 143, where he said, “This question arises under the provisions of the sixth section of the Act of March 21, 1806 (4 Sm. Laws, 326), by which, if by the alteration or amendment the adverse party is taken by surprise, the trial is to be postponed to the next court. The defendant contends that whenever an amendment of the declaration is made immediately before or during the trial, he has a right to a continuance as a matter of course. The act of assembly does not seem to us capable of this construction. It puts it not on the allegation of surprise, but on the existence .of the fact, which necessarily throws upon the court the duty of ascertaining and determining whether the party is really surprised, or there is merely an affectation of being so without real foundation. For many cases may be supposed in which the alteration would be so trivial, or it could be so obvious, that no surprise could exist, that it would be unjust to allow a continuance. Of this, however, the court below is the sole judge: being, matter of sound discretion, and turning frequently on matters of fact not appearing in the record, the question whether or not a party was surprised by allowing an amendment, is not of a nature to be examinable on a writ of error, but the judgment of the court must, as in numerous other instances, be final and conclusive.” The same principle was again stated in Farmers’ & Mechanics’ Ins. Co. v. Simmons, 30 Pa. 299, 302, where Mr. Justice Strong said: “If the amendment was properly allowed then the refusal to permit a continuance of the cause was a thing discretionary with the court, and the exercise of that discretion cannot be reviewed by us.” And again in Walthour v. Spangler, 31 Pa. 523, it was held, as set forth in-the syllabus, “The allowance or refusal of a continuance, in case of an amendment, is a matter of discretion in the court below, which is not reviewable in this court.”

In the present case we see no reason to fairly question the discretion which was exercised by the trial judge, in refusing to continue the case; and as to the admission of the letter in evidence, if the amendment to the statement was proper, the letter which was the subject of the amendment, was necessarily admissible.

In the third assignment of error, complaint is made of the admission in evidence, against objection, of an invoice or itemized statement of the amount claimed by plaintiff. It appears from the record that a letter written by plaintiff to defendant, stating the amount of the invoice, was offered in evidence, and was admitted without objection. Counsel for plaintiff then offered the invoice referred to in the letter, and it was admitted against objection. We see nothing wrong in this, for the invoice was merely an itemized statement of the amount claimed. If the letter was admissible, the invoice was equally so, for it was merely an amplification of a part of the letter. We do not see that its admission could have done defendant any harm. The fact that the machinery had been furnished was not denied, nor was it claimed that the prices charged were not in accordance with the contract. The defense was in the nature of a set-off, and could not be affected by the use of this invoice as evidence.

In the fourth assignment of error, complaint is made of the exclusion of the offer of defendant’s counsel, to show that no blue prints, showing the machinery in question, were received or seen by defendant prior to the date of the acceptance of plaintiff’s proposition. The letter containing that proposition stated, “We propose to furnish winding machinery complete, as shown by our B. P. (blue prints).” The trial judge excluded the offer, for the declared reason that, under the wording of the proposition, if defendant had not received the blue prints, it should have notified the plaintiff of that fact, and have waited until it did receive them before accepting the offer. He held that if defendant saw fit to accept the proposition without waiting to receive the blue prints, it was bound by its acceptance, and it was therefore immaterial whether it had actually received the blue prints at the time or not. We see no reason to differ with the view expressed by the trial-judge in this respect.

The fifth, sixth, seventh, eighth, ninth and eleventh assignments of error all relate to the exclusion of evidence bearing upon the measure of damages to be allowed to defendant, in case it succeeded in satisfying the jury that the plaintiff had not fulfilled the terms of the contract. But it is apparent from the verdict that the jury found that there was no breach of the contract, for it awarded to plaintiff its entire claim. Under this finding, no damages could have accrued to defendant, and the action of the court with respect to evidence as to the measure of damages, became immaterial.

In the tenth .assignment of error it is alleged that the trial judge erred in excluding an offer made by defendant’s counsel to show that the track furnished by plaintiff was inadequate to sustain the burden put upon it, and that by reason of that fact the defendant was obliged to lay additional rails and readjust the track. It does not appear, however, that there was any offer to show any departure in the weight or size of the parts in question, from the specifications set forth in the contract. There was evidence tending to show that the material furnished conformed in these particulars to the contract, and to the order given by defendant company. There was no express warranty as to the working of the machinery, and as the order specified articles of a given weight, size and material, to be manufactured according to specified plans, there would be no implied warranty. The principle of an implied warranty is not to be applied where a special thing is ordered, although this be intended for a special purpose: Port Carbon Iron Co. v. Groves, 68 Pa. 149; American Home Savings Bank Co. v. Trust Co., 210 Pa. 320.

In the twelfth assignment of error, complaint-is made of the overruling of the objection of defendant’s counsel to a hypothetical question put to a witness called by plaintiff in rebuttal. The testimony shows that the objection was made on the specific ground that “the contract provides for grip cars and trailers.” Counsel for appellant now urge that the question assumed facts not in evidence, and that it was therefore error to overrule the objection. But that is not the ground upon which the objection was put when it was made. In Mills v. Buchanan, 14 Pa. 59, where the prior decisions were reviewed, it was held, as set forth in the syllabus, that “a party objecting to evidence, is to be confined to the ground of objection taken in the court below.” And in the later case of Danley v. Danley, 179 Pa. 170, it was declared to be a settled principle that the party complaining on appeal of admission of evidence in the court below, will be confined to the specific objection there made to it. This rule was again approved in the recent case of Benner v. Fire Association, 229 Pa. 75. The trial judge submitted to the jury the question whether the alleged unsatisfactory operation of the plant was due to the improper manner in which the machinery was set up and run, or whether it was due “to a radical or essential insufficiency” in the machinery itself. The verdict of the jury settled this contention in favor of the plaintiff.

The assignments of error are all overruled, and the judgment is affirmed.


author: Mr. Justice Stewart,

text:
    Crock’s Estate.

      Will — Construction—Repugnancy—Intestacy.
    Testator divided his residuary estate after the death of his wife in ten parts, seven of which he gave absolutely to seven of his children, and the remaining three in trust for life for two daughters and one son. The gift in trust to the son G. provided as follows: “And at and immediately upon his decease out of the said one-tenth .... the sum of $2,000 thereof to go to G’s son, C., if he be then living .... and all the rest, residue and remainder of the said one-tenth part, the same to include the said sum of $2,000, should he the said C. depart this life before his father to revert to and become part of my residuary estate.” By a later clause testator directed as follows: “It is my mind and will that should any or either of my said daughters or sons for whom provision has been made through my said executors as trustees, shall happen to depart this life without leaving any child or children or lawful issue of any deceased child or children him or her surviving then and in such case and in every such case the part and share of my estate so devised in trust for him or her shall upon his or her decease revert to and become part of my residuary estate.” Reid, that C., surviving G., was entitled to $2,000 only out of the one-tenth bequeathed in trust to G. for life, and that the balance of said one-tenth was distributable in equal ninth parts to the testator’s surviving children.
    Argued Jan. 20, 1911.
    Appeal, No. 94, Jan. T., 1910, by Amelia Crock, executrix, from decree of O. C. Phila. Co., April T., 1887, No. 520, dismissing exceptions to adjudication in Estate of George Crock, Sr., deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to. adjudication.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in dismissing exceptions to adjudication.

      V. Gilpin Robinson, with him John G. Kaufman, for appellant.
    The reverter clause in the trust for George Crock, Jr., is inconsistent with and repugnant to the other portions of the will, wherein the general scheme of the testator is disclosed, and it must be eliminated: German v. German, 27 Pa. 116; Stickle’s App., 29 Pa. 234; Hart v. Stoyer, 164 Pa. 523; Shreiner’s App., 53 Pa. 106; Ferry’s App., 102 Pa. 207; Horwitz v. Norris, 60 Pa. 261; Hitchcock v. Hitchcock, 35 Pa. 393; Schott’s Estate, 78 Pa. 40; Sheetz’s App., 82 Pa. 213; Jones’s App., 3 Grant (Pa.), 169; Jarman on Wills, 438.
    Conceding for argument’s sake only, that there is no inconsistency or repugnancy in Crock’s will, an intestacy must result under the reversionary clause in the trust for George Crock, Jr.

      April 10, 1911:
    There was a conditional gift over limited upon a particular contingency. The event did not happen, but another event actually happened, not provided for by the testator, therefore, and intestacy resulted: Eby v. Eby, 5 Pa. 461; Filbert’s Est., 195 Pa. 295; Shaner v. Wilson, 207 Pa. 550; Rupp v. Eberly, 79 Pa. 141; Skrymsher v. Northcote, 1 Swanston, 566; Beekman v. Bonsor, 23 N. Y. 298; Waln’s Est., 156 Pa. 194; Nebinger’s Est., 185 Pa. 399; De Silver’s Est., 142 Pa. 74; Heckert’s Admr. v. Myers, 24 York Leg. Rec. 85.
    The title of the heir under the intestate laws cannot be divested unless by a will which contains express words or necessary intendment to that effect: Corr’s Est., 202 Pa. 391; De Silver’s Est., 142 Pa. 74; Hitchcock v. Hitchcock, 35 Pa. 393; Grim’s App., 89 Pa. 333; Abel v. Abel, 201 Pa. 543.
    If there is an intestacy as to any part of the dispositions contained in the will, the heirs are to be ascertained as of the date of the death of the testator, unless there is some other plain indication. George Crock, Jr., was an heir, and his will, duly proved, devised and bequeathed all his estate to the appellant: Stewart’s Est., 147 Pa. 383; Bell’s Est., 147 Pa. 389; Brooke’s Est., 214 Pa. 46; Moore v. Deyo, 212 Pa. 102; De Silver’s Est., 142 Pa. 74.

      John G. Johnson, with him Maurice Bower Saul, for appellees.
    There was no intestacy: Raudenbach’s App., 87 Pa. 51; Miller’s App., 113 Pa. 459; Reimer’s Est., 159 Pa. 212; In re Allan, L. R. 1 Ch. Div. (1903) 276; Crawshaw v. Crawshaw, L. R. 14 Ch. Div. 817.
   Opinion by

Mr. Justice Stewart,

The testator having given his entire estate to his wife for life, directed that upon her death the estate should be divided into ten equal parts. To each of seven named children he gave a one-tenth absolutely, the remaining three-tenths he placed in trust, one for each of his two daughters named, and one for his son George, with express limitations as to each. We are here concerned only with the share placed in trust for George during life. The gift to him was the net interest and income of a one-tenth during his life, followed by this provision: “And at and immediately upon his decease out of the said one-tenth part so devised and bequeathed for his benefit during life, the •sum of two thousand dollars thereof to go to and I do give and bequeath the said sum unto his the said George’s son Charles Crock if he be then living, to be disposed of by him as his own absolutely. And all the rest residue and remainder of the said one-tenth part the same to include the said sum of two thousand dollars, should he the said Charles Crock depart this life before his father, to revert to and become part of my residuary estate. ’ ’ George died in March, 1909. Charles having survived his father has been awarded his legapy of $2,000. George by his will gave his entire estate to his wife, and constituted her executrix. She is now here appealing from an adjudication awarding the balance of The trust fund in equal ninth parts to the surviving children and the trustees of surviving children, and the legal representatives of those deceased, excluding the legal representative of the son George from participation. The claim made on her behalf .is that there is an intestacy as to so much of this one-tenth as remained after the payment of the legacy to Charles. The .argument in support of this view would derive from the will an intention on part of the testator to effect a reversion only in the event of Charles dying in the lifetime of his father. If the inquiry be confined to the particular clause of the will above quoted, the construction contended for would have nothing to support it. That the contingency of Charles dying in the lifetime of his father was in the testator’s mind when he wrote this provision, is manifest, since he provided against it, directing that in that event the whole fund, including the $2,000 legacy, was to revert to the residuary estate. The language employed in this clause expresses unmistakably a definite purpose that upon the death of George the portion placed in trust for him should revert to the estate. The contention is not that it can be otherwise interpreted, but that the testator did not mean what he said; and an inference to this effect is sought to be derived from a later clause in the will which reads as follows: “It is my mind and will that should any or either of my said daughters or sons for whom provision has been made through my said executors as trustees, shall happen to depart this life without leaving any child or children or lawful issue of any deceased child or children him or her surviving then and in such case and in every such case the part and share of my estate so devised in trust for him or her shall upon his or her decease revert to and become part of my residuary estate.” It is argued that here is a repugnancy; that these two provisions cannot be read with the same result, and that by the reflected light from the later clause, it is made apparent that what testator meant in the earlier clause was a reversion in case George died without issue surviving him. But there is no repugnancy. George dying without issue surviving him, under both clauses the share given in trust for him would revert to and become part of the residuary estate; dying and leaving issue, of such issue Charles only was to take, and that only to the extent of the legacy of $2,000, and the balance was to fall into the residuary estate. What considerations influenced the testator to make this distinction between the issue of George and the issue of his other children we do not know, nor does it concern us to inquire. He thought it wise and best to make the distinction, and he has expressed it in no uncertain way. We find nothing in the later clause conflicting with the earlier, and nothing which in any way qualifies it. It is further argued in support of appellant’s contention that under the later clause, a gift to the issue of such of testator’s children as were provided for through trustees — George being in this class — arises by implication from the gift over upon default of issue, and that such contingency did not happen, but that another event happened not provided for by the testator, and intestacy accordingly resulted as to all but the $2,000 given to Charles. This argument overlooks the fact that in the earlier provisions of the will, the gifts, which would here be derived by implication, were specifically ordered and directed. Upon the death of testator’s daughter Elizabeth, the share given her for life was given, devised and bequeathed unto all and every child and children of her the said Elizabeth that shall be living, and the lawful issue of such of them as shall then be deceased.” There was the same gift over in the provision made for the other daughter. Upon the death of George $2,000 out of the fund he enjoyed for life was given to his son Charles, and the remainder was to become part of testator’s residuary estate. These specific devises and bequests left nothing to be implied; they stand in the way of implication, and cannot bé so overcome or defeated. Even were it otherwise, it could avail this appellant nothing, for as said by the auditing judge, in that case, Charles, son of George, who is not an exceptant, would take the entire interest, and the appellant nothing. But, aside from all this, we find nothing in the will that gives support to the theory of intestacy as to any portion of the estate. It is so clearly a disposition of the testator’s whole estate that it requires no aid from legal presumptions to sustain it in this regard. Since there is no intestacy, and the fund for distribution has reverted and become part of the residuary estate, how is it to be distributed? If the testator has indicated in his will the mode and manner, that is the law which must govern. The portion that has reverted is what was given George for his life. Out of this portion, upon George’s death, he gave to George’s only surviving child, Charles, and therefore the only one who stood in succession to George, $2,000. Could he have intended that in addition, those representing George should share equally with the other nine in what remained? Nothing short of a clear expression of such intent would overcome the inference that he intended that what remained was to be distributed among his other legatees. As we read this will it shows a clearly defined purpose in the testator to deny to George’s child any and all participation in the estate, including the rest, residue and remainder, other than that specifically and in terms given them. The adjudication divides the fund between the nine residuary legatees to the exclusion of George’s representatives, and in doing so properly interprets the will.

The assignments are overruled, and the appeal is dismissed.


text:
    Mint Realty Company, Appellant, v. Wanamaker.

      Equity — Injunction—Construction of cornice over highway — Custom— Evidence.

    An injunction will not be granted to restrain the construction of a cornice extending about eight feet from the building line over a highway twenty-eight feet wide between building lines, where the case is heard on bill and answer, and it appears that the defendant’s building is 247 feet high while the plaintiff’s building is only fifty-five feet high, and the averments of the bill as to special and irreparable injury are all specifically denied in the answer; the answer further averring the universal custom in the city to construct, as part of the architectural design of any building fronting on a public highway, a projecting cornice, the extent of the projection being further determined by height and design of the building, and that the plaintiff itself had in accordance with this custom encroached upon the street with the cornice of its own building to the extent proportionate to its height.
    Argued Jan. 23, 1911.
    Appeal, No. 176, Jan. T., 1910, by plaintiff, from decree of C. P. No. 2, Phila. Co., June T., 1909, No. 1,240, dismissing bill in equity in case of Mint Realty Company v. John Wanamaker.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Wiltbank, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree dismissing the bill.

      Morris Wolf, with him Horace Stern, for appellant.—
    The building of a cornice overhanging all of the footway and part of the cartway of a public street is a nuisance per se: Reimer’s App., 100 Pa. 182; Com. v. Kembel, 30 Pa. Superior Ct. 199; Kiser v. Kerbaugh, 40 Pa. Superior Ct. 163; Penna. R. R. Co.’s App., 115 Pa. 514; Riley v. Penna. Co., 32 Pa. Superior Ct. 579; Hacke’s App., 101 Pa. 245; Garvey v. Refractories Co., 213 Pa. 177; Morrow v. Traction Co., 219 Pa. 619.
    April 10, 1911:
    The plaintiff in this case suffers a special injury from the defendant’s illegal act, and is entitled to an injunction: Pittsburg v. Scott, 1 Pa. 309; Hughes v. Heiser, 1 Binney, 463; Philadelphia v. Collins, 68 Pa. 106; Gallagher v. Philadelphia, 4 Pa. Superior Ct. 60; Knowles v. R. R. Co., 175 Pa. 623; Penna. Schuylkill Valley R. R. Co. v. Paper Mills, 149 Pa. 18; Philadelphia v. Railway Co., 8 Phila. 648; Penna. R. R. Co’s. App., 115 Pa. 514; Thomas v. Street Railway Co., 167 Pa. 120.

      John G. Johnson, with him James Wilson Bayard, for appellee.
    The bill was properly dismissed: Philadelphia’s App., 78 Pa. 33; Livingston v. Wolf, 136 Pa. 519; Ingram v. Railroad Co., 38 Iowa, 669; Sautter v. Bank, 45 N. Y. Misc. 15 (90 N. Y. Supp. 838); Johnson v. Andengaard, 100 Minn. 130 (110 N. W. Repr. 369).
   Opinion by

Mr. Justice Stewart,

The appellant is the equitable owner of a lot of ground in the city of Philadelphia situate on the northwest corner of Chestnut and Juniper streets, extending northward along Juniper street to Penn square, having thereon erected a building fifty-five feet in height, covering the entire lot. The appellee is the owner of a larger lot on the northeast corner of Chestnut and Juniper streets, extending northward along Juniper street and Penn square to Market street, upon which he has erected a building covering the entire lot, 247 feet in height. Prom the top of the latter’s building, on each side, a cornice projects seven feet and ten inches from the building line. We are concerned with only that part of the cornice that projects over so much of Juniper street as bounds appellant’s lot. In the bill filed in the case, appellant sought to enjoin the appellee from constructing the cornice, on the ground that Juniper street, having a width of only twenty-eight feet between building lines, such a cornice as that contemplated by appellee would, to a serious extent, deprive appellant and his tenants of the light and air to which they are entitled, and result in serious injury, inconvenience and depreciation in value of complainant’s property. The answer, filed during the course of erection of appellee’s building, admitted that it was appellee’s purpose to construct thereon such cornice as was described in the plaintiff’s bill; averred that it was with the approval and consent of the municipal authorities; that a less projection would not accord with the size and height of the building contemplated; and denied that the proposed cornice would result in the injury, inconvenience and depreciation in value of plaintiff’s property as claimed in the bill. The case was heard on bill and answer, the injunction prayed for was refused, and the bill dismissed. The appeal by plaintiff from the decree is now before us. It calls for but little discussion. If the projection complained of be an unlawful encroachment upon Juniper street, a public thoroughfare of the city, it is a nuisance per se, and one public in its character, which, upon information by the attorney general, or at the suit of the municipality, would be enjoined against as an unwarranted invasion of public rights. Except as the appellant can show that in consequence of the projection it will suffer a special injury, separable from and in addition to that which inconveniences the general public, it can have no standing as a suitor to complain. It is not enough that it is alleged in the bill that special injury will result. The restraining arm of the court will be extended only as it is made to appear to the satisfaction of the chancellor that special injury, substantial and irreparable, is being attempted. The burden of showing this rests on the complainant always. Here plaintiff rested on such averments in its bill as were not specifically denied in the answer; that is to say, that the defendant had in course of erection on his own lot a building of unusual proportions, and contemplated capping it with a cornice which would project little short of eight feet on Juniper street, a street twenty-eight feet in width. So much was admitted in the answer; but every other material averment was in the answer specifically denied, including that of special injury and inconvenience. Could a chancellor with nothing before him but these admitted facts, conclude from them, and them alone, that a cornice projecting seven feet and ten inches from the top of a building 247 feet in height would work a substantial interference with the light and air of a building nearly 200 feet below, and which, even if elevated to an equal height — in regard to which no present purpose was declared — would be twenty feet away from the extremest part of the cornice? Even to doubt with respect to this would be to resolve the case against the plaintiff, in view of what defendant averred as to the serious consequences that would result to him, were he to be enjoined against completing his building in accordance with plans designed by his architects, and approved by the municipal authorities. The answer avers a universal custom in Philadelphia to construct, as part of the architectural design of any building fronting on a public highway, a projecting cormee, the extent of the projection being determined by height and design of the building, and that complainant itself has, in accordance with this custom, encroached upon Juniper street with the cornice of its own building to the extent proportionate to the height. While it is the circumstance of special, substantial injury that controls in all such cases, yet, when the basis of the complaint is such special injury resulting from an encroachment upon a public highway, and the party complaining is itself guilty of like encroachment upon the same highway, and at the same point, differing only in extent, the evidence of special injury should be convincing to a degree not required when the complainant party itself stands clear of all misdoing. The averment in the answer that defendant’s cornice conforms to general custom, not denied, was properly allowed significance, not as controlling the case, but as an admitted fact calling for consideration. We can do no better in this connection than repeat what was said by Shaiíswood, J., in City of Philadelphia’s Appeal, 78 Pa. 33: “We concede that no usage, however long-continued, will justify an encroachment great or small upon a public highway. But in the exercise of that sound discretion with which a chancellor is invested, he may well consider and give effect to such an usage as rightfully persuasive to arrest his interposition by the writ of injunction. Otherwise he might be made the instrument of very gross injustice. Courts of equity are not instructed in general to enforce abstract legal rights. There must be substantia], irreparable injury attempted.” As we have already said, such injury must be made clearly to appear. In the present case the learned chancellor could not derive, from what he had before him, a conclusion that the complainant was threatened with special, substantial and irreparable injury. No more can we. The injunction asked for was properly refused.

The appeal is dismissed at cost of appellant.


author: Mk. Chief Justice Fell,

text:
    Cornog, Appellant, v. Wilson.

      Evidence — Writings—A Iterations — Negotiable instruments — Promissory notes.

    1. When it clearly appears on the face of a writing that it has been altered in a material part, it is incumbent on the party producing it to account for the alteration, and until this is done it is not admissible in evidence. This rule is more stringent when applied to negotiable paper than to other written instruments and in relation to it there is no presumption of innocence and the burden of explaining any apparent material alteration is cast on the holder thereof.
    2. In an action upon a promissory note which was on a printed form containing the printed figures 188 at the place for the date, and it appears that the figure nine had been written over the second eight, and the figure four added, making the date 1894, and that the statute of limitations was a bar if the year had been 1884, the note is not admissible -in evidence without proof that the alteration and date had been made before the execution of the note.
    Argued Jan. 23, 1911.
    Appeal, No. 285, Jan. T., 1910, by plaintiff, from order of C. P. No. 1, Phila. Co., June T., 1900, No. 415, refusing to take off nonsuit in case of E. Clara Cornog v. William F. Wilson et ah, executors of the estate of Norris Wilson, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit on a promissory note for 16,500 by payee against the maker’s executors. Before Magill, J.
    The opinion of the Supreme Court states the case.

      Errors assigned were (1) in refusing to admit the note in evidence, and (3) in directing a nonsuit.

      V. Gilpin Robinson, for appellant.
    Under the rules of court of Philadelphia county, defendants are taken to admit the note to have been duly executed in the manner and form as pleaded, and the note should have been admitted in evidence: Batt v. Penna. Globe Gas Light Co., 18 Phila. 357; Zeigler v. Sprenkle, 7 W. & S. 175.
    There was no presumption of alteration in this case because the note was made out on a printed form and the only change was in adapting the printed form to such use: Heffelfinger v. Shutz, 16 S. & R. 44; Zimmerman v. Camp, 155 Pa. 152.
    A doubtful case should go to the jury: Colonial Trust Co. v. Getz, 28 Pa. Superior Ct. 619; Gettysburg Nat. Bank v. Gage, 4 Pa. Superior Ct. 505; Winters v. Mowrer, 1 Pa. Superior Ct. 47.
    ■ Alfred R. Haig, with him William F. Harrity, Henry C. Thompson, Jr., and J. Albert Miller, for appellees.
    A promissory note which shows on its face a material alteration is not admissible in evidence without an explanation of the alteration showing that it was lawfully made: Hartley v. Corboy, 150 Pa. 23; Nesbitt v. Turner, 155 Pa. 429; Sunday v. Dietrich, 16 Pa. Superior Ct. 640; Colonial Trust Co. v. Getz, 28 Pa. Superior Ct. 619; Shiffer v. Mosier, 225 Pa. 552; Clark v. Eckstein, 22 Pa. 507.
    April 10, 1911:
   Opinion by

Mk. Chief Justice Fell,

This was an action on a promissory note dated March 6, 1894, made by the defendant’s testator to the plaintiff. At the trial the plaintiff offered in evidence the note which was on a printed form containing the printed figures 188 at the place for the date. The figure 9 had been written over the second 8 and the figure 4 added, making the date 1894. From an inspection of the note it appears that the only part in the handwriting of the maker is the signature. The lines of the figure 9 are much heavier than any other figures on the note and obscure the parts of the figure 8 which they cover, but there is no marked difference in the color of the ink used in making them and that used in filling the blanks in the form and no erasure or scratching is shown. If the year was 1884, the statute of limitations was a bar to a recovery. At the trial the admission of the note in evidence was objected to without proof of the signature of the maker and that the alteration in date was made before its execution. The objection was sustained upon the second ground and a nonsuit was entered because of the failure of the plaintiff to prove her case.

There was no denial by the affidavit of defense of the execution of the note, and the plaintiff was relieved by the rules of court from proof of the signature of the maker, but the admission for the purpose of evidence went no further than this. The note was properly rejected as evidence of a debt in the absence of proof that the alteration in date was made before delivery. When it clearly appears on the face of a writing that it has been altered in a material part, it is incumbent on the party producing it to account for the alteration, and until this is done it is not admissible in evidence. This rule is more stringent when applied to negotiable paper than to other written instruments, and in relation to it there is no presumption of innocence and the burden of explaining any apparent material alteration is cast on the holder thereof: Simpson v. Stackhouse, 9 Pa. 186; Neff v. Horner, 63 Pa. 327; Nagle’s Est., 134 Pa. 31; Hartley v. Corboy, 150 Pa. 23; Citizens’ Nat. Bank v. Williams, 174 Pa. 66; 2 Daniel on Negotiable Instruments, sec. 1417. In Nagle’s Est., supra, it was said, “As a general rule, the law presumes in favor of innocence, but this presumption does not extend to the alteration of negotiable instruments,” and in Bank v. Williams, “The tendency of all our recent decisions is to hold parties more strictly responsible for alterations of any kind, particularly in the case of negotiable instruments.” The alteration in the date was obviously beneficial to the plaintiff, and there being no presumption that it was made before the signing of the itote, the burden of explanation was on her.

The judgment is affirmed.


author: Per Curiam,

text:
    Rodell, Appellant, v. Adams.

      Negligence — Master and servant — Emery wheel — Defective appliance— Pleading.

    1. In an action by an employee against his employer to recover damages for personal injuries from the breaking of an emery wheel, where the only negligence alleged is that the arbor or spindle on which the wheel ran was too light, a nonsuit is properly entered if it appears from the plaintiff’s own testimony that he had had twenty years experience in the use of emery wheels, that he had selected the wheel in question himself from the stock in the factory and had placed it on the machine, that he had told his employer that it was difficult to grind tools on the wheel, but that he had not spoken of its being dangerous, and that he did not believe that it was dangerous.
    2. In an action for negligence it is not enough that a cause of action be shown, it must be the cause alleged.

      Argued Jan. 23, 1911.
    April 10, 1911:
    Appeal, No. 272, Jan. T., 1910, by plaintiff, from order of C. P. No. 3, Phila. Co., June T., 1906, No. 3,032, refusing to take off nonsuit in case of Harry A. Rodell v. Daniel Adams.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to cover damages for personal injuries. Before Davis, J.
    The opinion of the Supreme Court states the case.

      Error assigned was order refusing to take off nonsuit.

      Myles Higgins, for appellant.

      Paxson Deeter, with him E. Clinton Rhoads and John C. Bell, for appellees.
   Per Curiam,

The plaintiff was injured by the breaking of an emery wheel on which he was grinding tools. He was a skilled workman, with some twenty years’ experience in the use of emery wheels. He had selected the wheel from the stock in the factory and placed it on the machine on which it was operated. The negligence alleged in the plaintiff’s statement of claim was that the wheel was defective and known by the defendant to be so. The only testimony in support of this allegation was that the arbor was too light for the wheel. The only effect of this was that the wheel vibrated and made the grinding of tools more difficult. It did not make the use of the wheel unsafe. The plaintiff, who used the wheel daily, testified that he had told his employer that it was difficult to grind tools on the wheel, but that he had not spoken of its being dangerous, and that he did not believe it was dangerous. His only objection was on the ground of inconvenience, not of danger. The plaintiff’s testimony made an end of his case. If he, a skilled workman, did not consider the wheel dangerous, his employer had no reason to believe it dangerous. Moreover, there was no evidence that the wheel was dangerous or that the accident resulted from the use of a light arbor. There was an attempt at the trial to set up other grounds of negligence, not alleged in the statement. This could not be done. It is not enough that a cause of action be shown; it must be the cause alleged.

The judgment is affirmed.


text:
    Crowley v. Pennsylvania Railroad Company, Appellant.

      Negligence — Railroads—Obstruction of crossing — Standing car.

    1. Where a railroad company obstructs for an unreasonable length of time a public crossing with a long train of empty coal cars, and a boy in attempting to cross over upon the standing cars from one side of the street to the other is violently thrown from the platform of one of the cars by the sudden and negligent starting of the train without signal or warning, the railroad company will be liable for the injuries which he sustains; and in such a case it is immaterial that the boy was found after his fall six feet south of the south sidewalk of the street on which the railroad was constructed, and that two witnesses for plaintiff testifying to this fact contradict the plaintiff and two of his other witnesses in their statements that the plaintiff entered on the cars at the crossing.

      Negligence — Damages—Minor—Rights of widowed mother.

    2. A widowed mother is entitled to recover damages on her own account for injuries negligently inflicted upon her minor son.
    Argued Jan. 23, 1911.
    Appeals, Nos. 131 and 132, Jan. Term, 1910, by defendant, from judgment of C. P. No. 2, Phila. Co., June T., 1905, No. 2,092, on verdict for plaintiff in case of Mary Crowley and Edward Crowley, by Mary Crowley, Ms next friend, v. The Pennsylvama Railroad Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries to a boy fourteen years old. Before Barratt, J.

      April 10, 1911:
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for Mary Crowley for $3,000 and for Edward Crowley for $12,000.

      Error assigned among others was in refusing binding instructions for defendant.

      E. J. Sellers, of Sellers & Rhoads, for appellant.
    The mother was not entitled to recover at all: Kelly v. Traction Co., 204 Pa. 623; Penna. R. R. Co. v. Banton, 54 Pa. 495.
    It is contended that under the statement of claim and the preponderance of testimony that the boy was injured south of Tasker street crossing and upon property which the undisputed testimony shows was not legally opened as a street, the presence of the boy having been without invitation express or implied of defendant and without its knowledge, there should be no recovery: Brague v. Railway Co., 192 Pa. 242; Phila. & Reading R. R. Co. v. Hummell, 44 Pa. 375; Phila. & Reading R. R. Co. v. Spearen, 47 Pa. 300; Woodbridge v. Railroad Co., 105 Pa. 460; Ogden v. Railroad Co., 23 W. N. C. 191; McMullen v. Railroad Co., 132 Pa. 107; Baltimore & Ohio R. R. Co. v. Schwindling, 101 Pa. 258; Penna. R. R. Co. v. Mooney, 126 Pa. 244; Clark v. R. R. Co., 5 W. N. C. 119.

      Thomas James Meagher, for appellee.
    The learned trial judge gave an unimpeachable charge to the jury. His charge followed the unbroken line of decisions in Pennsylvania on the subject, the last of which is Todd v. Philadelphia & Reading Ry. Co., 201 Pa. 558, which in turn followed Rauch v. Lloyd, 31 Pa. 358; Penna. R. R. Co. v. Kelly, 31 Pa. 372, and other earlier cases.
    The widowed mother was entitled to recover: O’Brien v. Philadelphia, 215 Pa. 407.
   Opinion by

Mr. Justice Stewart,

The variance between the allegations and proofs, so much complained of, is not only more apparent than real, but relates to matters immaterial. It is of no importance by what route the plaintiff approached the crossing where he met with his injuries. What was set out with respect to this in the statement of claim was by way of inducement simply. The material allegations which defendant company was called upon to meet were, that it had for an unreasonable length of time kept at rest a long train of empty coal cars upon Twenty-fifth street in the city of Philadelphia, thereby blocking Tasker street, which runs at right angles with Twenty-fifth, and preventing travel thereon; that the boy, Edward Crowley, a youth of ten years, accompanied by a brother two years older, while attempting to cross over upon the standing cars from one side of Tasker street to the other, and while upon the platform of one of the cars, was violently thrown from the car by the sudden and negligent starting of the train without signal or warning, with the result that he was seriously injured. Whether the train was actually at rest, and for what period of time, were matters in dispute; but these questions were for the jury on the evidence, and the findings with respect to them have ample support in the testimony. Twenty-fifth street, running north until. Tasker is reached, is an unopened street, and defendant company owns a fee therein to the extent of thirty feet in width, which it uses for its tracks. Whether north of Tasker this street is an open public thoroughfare does not appear, nor is it material. The boy, Edward Crowley, his companion and another, the only witnesses who saw the occurrence, testified that the boys entered upon the cars on the north side of Tasker, at the crossing. Two other witnesses called by plaintiff testified that after the boy had fallen and received his injuries, he was found along the tracks some six feet or more south of the path on the south side of Tasker street. The train was moving north; and since the boy was discovered immediately after the accident, the evidence suggests a contradiction as to the point where he entered upon the cars to cross; and it is argued that if the entry was at the point where the boy was found, then it was on the premises of the defendant, not at the public crossing, and that defendant owed no duty to the boy at that place, except as it was shown that it had knowledge of his being on the cars. With respect to this contention, it is only necessary to say that this inconsistency in the testimony, irreconcilable as it may seem, was matter which addressed itself to the jury. The boy’s testimony was clear, direct and positive that he entered upon the cars at the public crossing on the north side of Tasker street; and in this he was supported by the only two witnesses who saw the occurrence. He was entitled to have the jury believe this testimony if they would, notwithstanding two other witnesses called on his behalf testified to conditions subsequent which would seem to indicate that entry on the cars had been made from the south side at a point below the line of Tasker: Kohler v. Railroad Co., 135 Pa. 346. In the case cited it is said: "If, on the whole evidence in behalf of the plaintiff, his own testimony is overthrown by that of his own witnesses, in such number and weight that the court could not support a verdict in his favor, then it would become the duty of the court to direct a nonsuit or a verdict. But such case should be clear and without doubt. If there is a doubt, it must go to the jury.” The court clearly would have been without justifying reasons had it withdrawn this case from the consideration of the jury. But more than this — conceding that the crossing was attempted on the south side at a point some six feet from the south line of Tasker street, how can it be urged that such circumstance should defeat a recovery, except as the boy is to be regarded as a trespasser on the company’s property? Can a railroad company, in disregard of the duty it owes to the public, block a crossing with a train composed of cars, each of which is more than thirty-one feet in length, be heard to say that when one who finding his way so blocked, . steps aside from the crossing a distance of six feet to find an opening between the cars through which he may pass, is a trespasser? Technically he may be a trespasser, but such technicality ought not and cannot be allowed to exempt the company from liability for injuries occasioned by its own negligence in failing to keep the public way open for the accommodation of the public.

The action was in behalf of the injured boy, and in behalf of his widowed mother as well, and a separate amount was recovered for each. The right of a widowed mother to recover for loss of service of her minor child, is not open to question since the decision of this court in O’Brien v. Philadelphia, 215 Pa. 407. It was there held that under the Act of June 26, 1895, P. L. 316, a deserted mother has a right of action in such case. It follows, a fortiori, that the same right belongs to a widowed mother.

Into a discussion of what passed between court and counsel with respect to the points submitted on behalf of defendant, we must decline to enter, since the rulings themselves are clear of error. In view of this fact, discussion of ■the controversy would be most unprofitable. In what we have said we have given consideration to all the assignments. We find no error in the record, and the judgment is affirmed.