author: Mb. Chief Justice Mitchell,

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

      Municipalities—Ordinance—Form of ordinance—Appropriations.

    In passing an appropriation ordinance the councils of a municipality may put their mandate in any form they choose. All that is necessary is that the language should clearly express their intent to make an appropriation.

      Municipalities—Appropriations of money—Firemen’s Relief Association— Constitutional law—Repeal of ordinance—Mandamus.

    An ordinance of a city appropriating money received from the state under the Act of June 28, 1895, P. L. 408, relating to the taxation of foreign insurance companies, to a firemen’s relief association, does not violate article 9, sec. 7, of the constitution, prohibiting municipal appropriations for “any corporation, association, institution or individual.” Such an appropriation, however, even if made generally, and not restricted to a particular year is revocable at the pleasure of the municipality, and if it is repealed, no mandamus will lie against the city treasurer to compel him to make any payments whatever under the ordinance. The question whether the repeal affects state moneys paid to the city in previous years, and not paid over to the association, is a matter for settlement in a suit directly against the city, and cannot be adjudicated in the mandamus proceedings.
    Argued Feb. 20, 1905.
    Appeal, No. 263, Jan. T., 1904, by plaintiff, from judgment of C. P. Lackawanna Co., Jan. T., 1905, No. 1661-2 in mandamus proceedings in case of Commonwealth ex rel. Firemen’s Relief Association v. Frank S. Barker, city treasurer, and M. T. Lavelle, city clerk of the City of Scranton.
    Before Mitchell, C. J., Dean, Bbown, Potteb, and Elkin, JJ.
    Affirmed.
    Mandamus against a city treasurer and city clerk.
    From the record it appeared that the petition was filed to compel payments of money under an ordinance of the City of Scranton which was as follows:
    “ Sec. 1. Be it ordained by the Select and Common Councils of the City of Scranton, that all such sums of money as may be received by the City Treasurer in accordance with the Act of Assembly approved June 28th, 1895, be, and is hereby declared to be received for the benefit of the Scranton Firemen’s Relief Association.
    “ Sec. 2. That the City Treasurer is hereby directed to enter such sum, on the receipt thereof, under a special account, and to report the said amount annually to the City Clerk, who is hereby directed to issue warrants therefor in favor of the Treasurer of the Scranton Firemen’s Relief Association, immediately after the receipt thereof, and on report to him of the City Treasurer.
    “ Sec. 3. That any ordinance or any part of ordinance conflicting with the provisions of this ordinance be and the same is hereby repealed so far as the same affects this ordinance.
    “Approved March 17th, 1898.”
    The above ordinance was repealed in 1903, after the present proceedings were instituted.
    Answers were filed to the petition and demurrers were filed to the answers.
    The court in an opinion by Newcomb, J., entered judgment for respondents on the demurrers.

      Error assigned was in entering judgment for the respondents.

      A. A Vosburg, with him, Charles W. Dawson, for appellant.
    The report to be made by the city treasurer, and the drawing of the warrant by the city clerk, were merely ministerial duties ; and the officers cannot raise the question of the unconstitutionality of the ordinance, or any objection as to its validity, as a reason for their refusal to obey the mandates of the ordinance : Dechert v. Com., 113 Pa. 229; Com. v. George, 148 Pa. 463; Com. v. Philadelphia, 176 Pa. 588 ; Black v. Chester, 175 Pa. 101; Erie v. Moody, 176 Pa. 478; Harrisburg v. Shepler, 7 Pa. Superior Ct. 491, 190 Pa. 374; People v. Gleason, 8 N. Y. Supp. 728; 2 Beach on Pub. Corp. sec. 1573.
    The ordinance of 1897 made a valid appropriation of all moneys derived from the state under the provision of the act of 1895, not only of such money then in the treasurer’s hands, but as to that subsequently paid in ; and it was not necessary or proper to make an appropriation of this money yearly, in the annual appropriation ordinance: People ex rel. McCauley v. Brooks, 16 Cal. 11; Black v. Chester, 175 Pa. 101; Wade v. Oakmont Borough, 165 Pa. 479 ; City of Erie’s App., 91 Pa. 398; Carr v. State, 11 L. R. A. 370; Humbert v. Dunn, 84 Cal. 57 (24 Pac. Repr. 111); Ristine v. State, 20 Ind. 328; People v. Miner, 46 Ill. 384; Com. ex rel. v. Gregg, 161 Pa. 582; Thomas v. Owens, 4 Md. 189; Green v. Purnell, 12 Md. 329; State v. Hickman, 8 L. R. A. 403.
    The ordinance of 1897 is constitutional: Lancaster Fireman’s Relief Assn. v. Rathfon, 18 Lane. Law Rev. 273 ; Speer v. School Directors, 50 Pa. 162 ; Sharpless v. Philadelphia, 21 Pa. 147; Brooke v. Philadelphia, 162 Pa. 123 ; Tagg v. Philadelphia, 18 W. N. C. 79.
    Firemen and police officers stand in exactly the same relation to the city government. They are both municipal officers, but as they are charged with a public service, they are therefore not the agents of the city which appoints them: 1 Beach on Public Corp., secs. 744, 745; as to firemen, see Kies v. Erie, 135 Pa. 144; as to Policemen, see Perkins v. New Haven, 53 Conn. 214 (1 Atl. Repr. 825) ; Ogg v. City of Lansing, 35 Iowa, 495: Norristown v. Fitzpatrick, 94 Pa. 121.
    The repeal of the ordinance after the receipt of this money by the city treasurer, and after these proceedings had been begun, cannot affect the rights of the appellants, because these rights had already vested as to the money then paid: Stewart v. Harriman, 56 N. H. 25; James v. DuBois, 16 N. J. L. 285 ; Dash v. Van Kleeck, 7 Johns (N. Y.), 477.

      David J. Davis, city solicitor, with him, S. R. Van Deusen, assistant solicitor.
    The municipalities having only such powers as are conferred by the legislature, we contend that there is no authority vested in the city by virtue of any act of assembly, or by its charter, that authorizes such an expenditure of money, as is attempted in this case: Gas & Water Co. v. Dowingtown, 175 Pa. 341; Millerstown Boro. v. Bell, 123 Pa. 151; Com. v. Moir, 199 Pa. 534.
    . Unless expressly authorized by charter or statute, a municipal corporation cannot appropriate or give away the public money as pure donations to any person, corporation or private institution not under the control of the city, and having no connection with it: 1 Dillon’s Mun. Corp. sec. 149; Com. v. Pittsburg, 183 Pa. 202; Wilkes-Barre City Hospital v. Luzerne County, 84 Pa. 55.
    That a municipality is unauthorized to expend funds in the manner provided for in this ordinance, see Webster v. Hopewell Boro., 19 Pa. Superior Ct. 549; Com. v. Gingrich, 21 Pa. Superior Ct. 286; McKean Co. v. Yourig, 41 Pa. Superior Ct. 581; Cumberland Co. v. Poor Directors, 7 Pa. Superior Ct. 614; Commonwealth v. Walton, 182 Pa. 373.
    May 1, 1905 :
   Opinion by

Mb. Chief Justice Mitchell,

The petition for mandamus asked for the writ against the city treasurer and the city clerk jointly. These officers, however, have separate duties and are in no wise responsible for each other. The writ asked for therefore was clearly ir-. regular, and could not be granted. But appellant has now with leave amended its petition and the subsequent proceedings by striking out the name of the city clerk, and electing to proceed against the city treasurer alone.

The ordinance in question was a valid and sufficient appropriation of the fund to the use of appellant, at least for the current year of its passage. The treasurer is directed to enter the sum received from the state under a special account and to report the amount annually to the city clerk who is directed to issue warrants therefor in favor of the appellant. All the essentials of a valid appropriation are here, and in the absence of a constitutional or legislative restriction as to form the city councils may put their mandate in any form they choose. All that is necessary is that the language should clearly express their intent to make an appropriation: Com. ex rel. v. Gregg, 161 Pa. 582.

It is contended that the ordinance if regarded as an appropriation for future years contravenes art. VI, sec. 10 of the Act of May 23,1889, P. L. 277, requiring councils to make annual appropriations. The several departments of the city government are required to make report before the commencement of each fiscal year of the probable receipts and expenditures, and councils are prohibited from making appropriations for other purposes, until the “ necessary expenses ” of the city are provided for. On the other hand, it is argued that this restriction is intended to apply only to ordinary annual expenses, and that in the present case there is not the creation of any city debt or obligation beyond its current income, as the appropriation is only of so much as the city may receive each year from the state. As the ease is to be decided on other grounds we express no opinion on this point.

The objection that the ordinance is in violation of article IX, section 7, of the constitution prohibiting municipal appropriations for “ any corporation, association, institution or individual ” is not tenable. The history and scope of that provision of the constitution are fully and clearly set forth in Com. ex rel. Police Pension Fund Assn. v. Walton, 182 Pa. 373, where it was said by the late Chief Justice Sterrett that “ no strictly legitimate municipal purpose was intended •to be prohibited,” and if councils “were satisfied, as they doubtless were, that the distribution of the fund would'be better effected through the agency of the association than by an agency of their own creation, they had a right to so provide.” This language could not have been more appropriate to the case at bar if it had been written for it. The protection of the city from fire is a municipal function of the highest importance, and as said in the case just cited ‘‘ a judiciously administered pension fund is doubtless a potent agency in securing the services of the most faithful and efficient class of men.” At the time of the passage of the ordinance the city had no paid fire department and the appellant association was performing that part of the city’s municipal functions. The fact that it was doing so voluntarily did not make it any the less eligible for appointment as the city’s agent in that regard.

Notwithstanding these considerations favorable to the appellant, we are obliged to affirm the judgment on the ground that the ordinance has been repealed. The learned judge below held that the appropriation to the appellant by the ordinance, even if a valid appropriation, was only a gift so far executory that it was revocable at any time before actual payment of the money, and the repeal terminated the donee’s rights whatever they had been before. "The ordinance, however, was not repealed, until October 24,1903, after the institution of this suit, and appellant contends that at least as to the previous years the repeal could not affect its rights. This question can only be decided in a direct issue between the appellant and the city. The present proceeding is a mandamus to the respondent as city treasurer, to perform a duty claimed by appellant to be ministerial and imperative belonging to his office. But at the time judgment was aslced against the respondent there was no such duty upon him. It existed only by virtue of the ordinance and the ordinance was no longer in force. Whether the city could terminate appellant’s rights by the repeal can only, as already said, be settled in a suit directly against it, but respondent cannot be commanded in this proceeding to perform a duty which no longer exists. Whatever appellant’s rights may be, therefore, they cannot be enforced in this form of action. The judgment must be affirmed on this ground.

Judgment affirmed.


source: Caselaw Access Project

author: Mb. Chief Jhstice Mitchell,

license: Public Domain

text:
    Belcher’s Estate.

      Taxation—Collateral inheritance tax—Appeal from appraisement—Notice.

    In the appraisement for collateral inheritance tax the statute gives a right of appeal which necessarily implies notice, and the thirty days limitation of the right of appeal begins only from such notice. The statute, however, contains no provision for a hearing except in the orphans’ court upon appeal.

      Wills—Life estate—Rule in Shelley’s case—Collateral tax.

    Testator bequeathed his whole estate practically, to his executors in trust to pay the income to testator’s parents, brothers and sisters “in equal proportions, and to the issue of any of said brothers and sisters in case of their death, semiannually for and during the term of their natural lives, and the lives of the survivors of them, .... And after the death of my said father or mother, or any of my said brothers and sisters, without issue, then in such an event, the portions of the income of my estate so to be paid to them during their life shall go to the survivor or survivors thereof for and during the remainder of their natural lives; and after the death of my said father and mother and all of my said brothers and sisters as aforesaid, then my estate shall descend to the issue of any of such brothers and sisters who may be living, share and share alike in fee.” Held, that the brothers and sisters did not -take a fee under the rule in Shelley’s case, and that their estates were not taxable as such.
    In determining whether the rule in Shelley’s case is applicable the test is how the donees in remainder are to take. If as purchasers under the donor then the particular estate is limited by the literal words of the deed and the rule in Shelley’s case has no application. But if the remainder-men are to take as heirs to the donee of the particular estate, then what has been called the superior intent as declared in Shelley’s case operates and the first donee takes a fee whatever words may be used in describing the estate given to him.
    Argued. Feb. 21, 1905.
    Appeal, No. 22, Jan. T., 1905, by Commonwealth, from decree of O. C. Lackawanna Co., Series C., 607, sustaining appeal from collateral tax appraisement in estate of Frank J. Belcher, deceased.
    Before Mitchell, C. J. Dean, Blown, Pottee and Elkin, JJ.
    Affirmed.
    Appeal from collateral tax appraisement.
    From the record it appeared that testator died March 18, 1901, leaving no widow or children. By his will he gave his estate to his father and mother and brothers and sisters. The material portions of the will are quoted in the opinion of the Supreme Court.
    The appraisers taxed the life estate of the brothers and sisters at $4,195.76. This amount was paid by the executors, but a tax upon the remainders amounting to $3,138.11 was resisted.
    The executors appealed from the appraisement. It did not appear that they had any notice of the appraisement, and the appeals were taken after the expiration of thirty days from the date of filing the appraisement. The orphans’ court sustained the appeal.

      Error assigned was the decree of the orphans’ court.

      Milton W. Lowry, with him Troutman, Llewellyn Fleitz, for appellant.
    The appeal was too late: Harris v. Mercur, 202 Pa. 313; Allen’s Estate, 207 Pa. 325; Schrenkeisen v. Kishbaugh, 162 Pa. 45; Ward v. Letzkus, 152 Pa. 318; Friedman v. Smith, 7 Kulp, 504.
    The rule in Shelley’s case is a rule of law and not of construction. When the language used in the instrument brings the case within the rule the fact that it was the intention of the grantor or devisor that the rule should not operate is of no importance : Bender v. Fleurie, 2 Grant, 345 ; Grimes v. Shirk, 169 Pa. 74; Sheeley v. Neidhammer, 182 Pa. 163 ; Shapley v. Diehl, 203 Pa. 566; Haldeman v. Haldeman, 40 Pa. 29; Carroll v. Burns, 108 Pa. 386.

      James E. Burr, with him O. R. JPiteher, for appellees.
    The appeal was taken in time: Handley’s Estate, 181 Pa. 339; Com. v. Coleman, 52 Pa. 468.
    The estate vested by the will in the brothers and sisters of the testator was a life estate: Walker v. Milligan, 45 Pa. 178 ; Guthrie’s App., 37 Pa. 9 ; McCann v. McCann, 197 Pa. 452; Moser v. Dunkle, 1 Woodward, 388; Bacon’s Estate, 202 Pa. 535; Siddall’s Estate, 180 Pa. 127; 1 Lewin on Trusts (ed. 1888), star pages 110 and 111.
    The word “ issue ” used in the Belcher will is only prima facie a word of limitation and may be construed to have a less extended meaning: Walker v. Milligan, 45 Pa. 178; Guthrie’s Appeal, 37 Pa. 9; Middleswarth’s Admr. v. Blackmore, 74 Pa. 414; Taylor v. Taylor, 63 Pa. 481; Shalters v. Ladd, 141 Pa. 349; Snyder’s Appeal, 95 Pa. 174; Miller’s Estate, 145 Pa. 561.
    The word “ descend ” in the will should be so construed as to make the children of his brothers and sisters purchasers: Keim’s Appeal, 125 Pa. 480; Wain’s Estate, 189 Pa. 631.
    . The words “ then living ” indicate a definite class of persons and not an indefinite failure of issue: Walker v. Milligan, 45 Pa. 178; Middleswarth’s Admr. v. Blackmore, 74 Pa. 414; Snyder’s Appeal, 95 Pa. 174; Sheets’s Estate, 52 Pa. 257; Taylor v. Taylor, 63 Pa. 481; Miller’s Estate, 145 Pa. 561; Fahrney v. Holsinger, 65 Pa. 388 ; McCullough v. Fenton, 65 Pa. 418; Yarnall’s Appeal, 70 Pa. 335; Johnson v. Currin, 10 Pa. 498.
    The fact that none of Belcher’s brothers and sisters had any children at the time of his death, makes no difference : Taylor v. Taylor, 63 Pa. 481; Cote v. VonBonnhorst, 41 Pa. 243; Lantz v. Trusler, 37 Pa. 482; Barclay v. Lewis, 67 Pa. 316.
    May 1, 1905:
   Opinion by

Mb. Chief Jhstice Mitchell,

The first question is whether the appeal from the appraisement to the orphans’ court was in time. The appraisement was filed July 21, 1902, but no notice given until July 28, and the executors entered their appeal on August 22. Did the time for appeal begin to run from the filing of the appraisement or from the date of notice ? The statute is silent on this subject. Its language is that “any person or persons not satisfied with said appraisement shall have the right to appeal within thirty days to the orphans’ court of the proper county.” The time for appeal is thus limited to thirty days but the terminus a quo the thirty days are to run is not named, nor is there any express provision for notice. But the requirement of notice is necessarily implied in the right of appeal, for without notice the “party not satisfied” has no certain means of learning that the time for him to move has come, and the privilege of appeal would be nugatory unless he should be fortunate enough to discover the proceeding from other sources. The statute, it is to be noted, fixes no time or mode of procedure. The register of wills is to appoint an appraiser “ whenever occasion may require ” and the appraiser is only directed “ to make a fair and conscionable appraisement.” The manner and time of so doing is left to him. In the present case the appraiser was appointed in August and filed his appraisement in the following July. It does not appear that the legatees had any notice of the appointment, and if they had it would be unreasonable to hold them bound at the risk of losing their appeal, to resort to the register’s office every thirty days during the eleven months the appraiser was taking his time about the matter. The proceeding was in no sense a judicial one, of whose successive steps parties were bound to take notice. In Hadley’s Estate, 181 Pa. 339, it was said, “ the statute makes no express provision for notice to them (the legatees) but it gives them the right of appeal, and it would therefore be proper if not requisite that the court should see that notice and a hearing are given. Without such notice and hearing, it is not consistent with the universal principles of law that the parties charged should be affected by the adjudication.” The point .was only incidentally touched in the case, and that was as far as it was necessary to go. But now that the question is directly raised we hold that notice of the filing of the appraisement is necessarily implied in the right of appeal given by the statute, and the thirty days’ limitation of the right begin only from such notice.

The court below held that there should be notice of the appointment of the appraiser, of the time and place of a hearing for the parties, and of the intended filing of the appraisement. The method of procedure suggested is admirable, and appraisers desiring to make a fair, impartial and satisfactory appraisemént would do welTto follow it. But we cannot say that it is essential. In the assessment or appraisement of property for taxation the taxing officers proceed in accordance with statutory authority which depends on the legislative will. If the statutes do not provide for a hearing or an appeal, then none can be claimed as of right. Ordinarily, the. assessment is ex parte, at least in the making of the appraisement in the first instance. In the appraisement for collateral inheritance tax as already said the statute gives a right of appeal which necessarily implies notice, but there is no provision for a hearing except in the orphans’ court upon appeal, and we cannot write such provision into the act, desirable as it might be. In the present case the appeal being within thirty days of notice of the filing of the appraisement was in time.

The second question is what estate is presently taxable for collateral inheritance. The testator bequeathed his whole estate practically, to his executors in trust to pay the income to testator’s parents, brothers and sisters “in equal proportions, and to the issue of any of said brothers and sisters in case of their death, semiannually for and during the term of their natural lives, and the lives of the survivors of them. . . . And after the death of my said father or mother, or any of my said brothers and sisters, without issue, then in such an event, the portions of the income of my estate so to be paid to them during their life shall go to the survivor or survivors thereof for and during the remainder of their natural lives; and after the death of my said father and mother and all of my said brothers and sisters as aforesaid, then my estate shall descend to the issue of any of such brothers and sisters who may then be living, share and share alike in fee.”

It is claimed by the commonwealth that under the rule in Shelley’s case the brothers and sisters took a fee, and their estates should be so taxed.

In Shapley v. Diehl, 203 Pa. 566, it was said, “ In determining whether the rule in Shelley’s case is applicable the test is how the donees in remainder are to take. If as purchasers under the donor then the particular estate is limited by the literal words of the deed and the rule in Shelley’s case has no application. But if the remaindermen are to take as heirs to the donee of the particular estate, then what has been called the superior intent as declared in Shelley’s case operates and the first donee takes a fee whatever words may be used in describing the estate given to him.” This test negatives the appellant’s contention. Under the will each of the testator’s brothers and sisters took a life interest in severalty for his own life. As each one died without issue his interest passed to the survivors for their lives. But if any one died leaving issue, the latter took a life interest in their ancestor’s share, pur autre vie, that is for the life of the last survivor of the testator’s brothers and sisters. When such survivor died, the issue then living of all the brothers and sisters, took a fee, not in succession to their parents per stirpes, but per capita in their own right directly from the testator. The testator gave life estates in severalty with no limitation over in fee to the heirs of any one, but with a contingent remainder in fee to such issue of the life tenants collectively as should be living at the death of the last life tenant. The remaindermen as already said took not as heirs to any one’s ancestor, but directly as donees and purchasers under the will. At present there is nothing taxable but life estates.

Judgment affirmed.


author: Per Curiam,

text:
    Dryden, Appellant, v. Pennsylvania Railroad Company.

      Negligence—“Stop, look and listen ”—Grade crossings—Death—Nonsuit.

    In an action against a railroad company to recover damages for the death of plaintiff’s husband, killed at a grade crossing of a public road, where the evidence shows beyond dispute that the deceased could not have stopped, looked and listened at any reasonably proper place before driving upon the track, it is immaterial what may have been the speed of the train, or what was the distance from the crossing at which the train might have been seen by the deceased, or that the sound of the locomotive whistle was liable to be obscured by a hedge; or whether or not the crossing was particularly dangerous. These principles are applicable to a case where the deceased hired the driver and buggy in which he was riding, and was not driving himself at the time of the accident.

      Argued Feb. 27, 1905.
    Appeal, No. 219, Jan. T., 1904, by-plaintiff, from order of C. P. Berks Co., Aug. T., 1902, No. 112, refusing to take off nonsuit in case of Elizabeth S. Dryden v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Bbown, Mestbezat and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Endlich, J.
    The facts as stated by the court were as follows :
    On the forenoon of August 21, 1901, the plaintiff’s husband hired a buggy, with driver, in Leesport, to go to a nearby place. The road crosses the railway diagonally at grade and then runs almost parallel with it for some distance, at a level depressed below that of the railway, a hedge intervening between the two. On the opposite side of the road and between it and a canal there is a line of willow trees arching over the road. Returning along this road, at a leisurely pace, with the top of the buggy raised, but without curtains, the team collided at the crossing with an express train going south, and both men were killed. Before reaching the turn in the road towards the track, which begins about sixty feet from the center of the track, there is a railway crossing caution board. At a point further on in the approach to the crossing, and variously stated to be fifteen, twenty-three and thirty-six feet from the track, there is an unobstructed view of the same to the north for at least 1,825 feet, to a whistling board. There the whistle of the train was sounded. There is nothing to indicate that the horse had become frightened and unmanageable. The train was slightly behind time and was running fast—the engineer, called by plaintiff, says sixty miles an hour though from the testimony of some of the plaintiff’s other witnesses the speed may be figured up to ninety or 100.
    The court entered a compulsory nonsuit which it subseqently refused to take off.

      Error assigned was refusal to take off nonsuit.

      II. Ii. Green, of Green $ Green, with him Henry Maltzberger, for appellant.

      Qyrus G. Herr, for apppellee.

      May 1, 1905 :
   Per Curiam,

The learned judge below after stating the facts in his opinion refusing to take off the nonsuit, continued: “ The collision occurred the instant the carriage reached the track. There was testimony that the. sound of the locomotive whistle was liable to be obscured by the hedge, etc., already referred to. But no matter to what extent that may be true, and no matter which of the figures named are accepted as correctly giving the speed of the train or the distance from the crossing at which it might have been seen by the occupants of the buggy, it is too plain for dispute that they could not have stopped, looked and listened at any reasonably proper place without seeing the train close upon the crossing and realizing the manifest peril of an attempt to pass ahead of it: Holden v. Penna. R. R. Co., 169 Pa. 1. The failure to do so constitutes per se such negligence as bars a recovery: Penna. R. R. Co. v. Beale, 73 Pa. 504; Whitman v. Penna. R. R. Co., 156 Pa. 175; Gray v. Penna. R. R. Co., 172 Pa. 383; Gleim v. Harris, 181 Pa. 387. Nor, in view of the contributory negligence thus conclusively established, is it .of any importance to inquire whether this crossing was particularly dangerous, or assuming it to be such whether there may not have been negligence in the defendant company in running its trains at so great a speed over it. Where the bar of contributory negligence is not in the way, these questions may arise : Ellis v. Lake Shore, etc., R. R. Co., 138 Pa. 506. But the exceptionally dangerous character of a crossing has a bearing upon the degree of care to be exercised by the traveler as well as of the railway company using it. The greater the danger of the crossing, the more obligatory the duty of the traveler approaching it to stop, and if unable to get a sufficient view from his carriage, then to get out of it and go forward on foot: Penna. R. R. Co. v. Beale, 73 Pa. 504; Kinter v. Penna. R. R. Co. 204 Pa. 497. The matter of speed, on the other hand, is wholly immaterial where, so far as the evidence goes, it is manifest that the party injured could not have been caught by the engine except for his failure to use his senses and heed the warning they were bound to give him had he used them.

“ Nor can it be contended that these principles are inapplicable here because the plaintiff’s husband was not the driver of the horse drawing the carriage in which he rode. The rule in Boro. of Carlisle v. Brisbane, 113 Pa. 544; Carr v. Easton, 142 Pa. 139; Finnegan v. Foster Twp., 163 Pa. 135, and similar cases, is predicated of the negligence of a voluntary carrier, over whose actions and omissions the persons riding with him and injured had no rightful control, not of one hired by, or for the time being in the employ of such person, and subject to his direction and restraint. As shown by the decisions in Crescent Twp. v. Anderson, 114 Pa. 643 ; and Dean v. Penna. R. R. Co., 129 Pa. 514, even in the former class of case?, the immunity accorded is not absolute to the extent of excusing reasonable caution in the face of patent danger.”

The judgment is affirmed on this opinion.


author: Pee. Ctjeiam,

text:
    DeBorbon’s Estate.

      Taxation—Collateral inheritance tax—Life estates—Decedents’ estates— Act of May 6,1887, P. L. 79.'
    Where testator directs his executor to pay “all the collateral inheritance tax on all the devises, bequests and legacies contained in this will as soon after my decease as the same can conveniently be done,” and the executor pays the tax on the entire estate at its valuation at that time, the commonwealth cannot after the death of a life tenant, and after the estate has increased in value, impose any tax upon the remainder-men.
    Where an executor has paid the collateral tax on the whole estate of the testator passing in possession or remainder, no appraisement need be made of the value of the life estate, and the remainders.
    Argued February 28, 1905.
    Appeal, No. 337, Jan. T., 1904, by Commonwealth, from decree of O. C. Berks Co., dismissing exceptions to adjudication in Estate of William L. DeBorbon, deceased.
    Before Mitchell, C. J., Fell, Bbown, Mestbezat and Elkin, JJ.
    Affirmed.
    Exceptions to adjudication.
    The opinion of the Supreme Court states the case.

      jError assigned was in dismissing exceptions to adjudication.

      William Kerper Stevens, of Stevens Stevens, for appellant.

      Frederick W. Nicolls, for appellee.
    May 1, 1905:
   Pee. Ctjeiam,

The testator bequeathed his residuary estate to a life tenant, with remainder to various legatees, all being subject to collateral inheritance tax. The will directed the executor to pay “ all the collateral inheritance tax on all the devises, bequests and legacies contained in this will, as soon after my decease as the same can conveniently be done.” Under this provision the executor paid the tax on the entire estate at its valuation at that time. Twelve years later, the life tenant having died, the commonwealth claimed the tax on the remainders, on the grounds that it was not due until the remainders came into possession, that the remaindermen not having paid it were now charged with the tax, and that the value of the estate having increased in the meantime, tax is payable on its present value.

By section 3 of the Act of May 6, 1887, P. L. 79, the tax on estates in remainder “ shall not be payable until the person liable for the same shall come into actual possession of such estate by the termination of the estate for life or years; and the tax shall be assessed upon the value of the estate at the time the right of possession accrues to the owner as aforesaid.” But the words “ shall not be payable ” mean only “ shall not be demandable ” by the state, as the right of the remaindermen to pay sooner is expressly given in the proviso to the same section, “ provided, that the owner shall have the right to pay the tax at any time prior to his coming in- possession, and in such cases, the tax shall be assessed upon the value of the estate at the time of the payment of the tax, after deducting the value of the life estate or estates for years.”

The objection that the tax is payable by the remainder-men and not by the executor is one that concerns chiefly the life tenant who was not bound ordinarily to permit her estate to be lessened by payment of a charge primarily imposed on the remaindermen. But in the present case even she could not object for the testator directed the payment and gave the life estate cum onere.

It is objected further that no appraisement was made of the values of the life estate and the remainders. None was required. The executor paid the tax on the whole estate of the testator passing in possession or remainder. The state received fhe full amount due to it under the statute, and has no standing now to complain that if the payment had been delayed the amount of it might have been larger.

Decree affirmed.


author: Mb. Justice Potteb,

text:
    Schwarz, Appellant v. Delaware, Lackawanna & Western Railroad Company.
    Negligence—Railroads—“ Stop, look and listen ”—Grade crossing—Death— Nonsuit—Safety gates—Watchman—Evidence.

    Where in an action against a railroad company for death at a grade crossing, the trial judge attempts to demonstrate by mathematical calculation the contributory negligence of deceased, and in doing so assumes that the train was moving at a uniform speed of forty miles per hour, and the wagon at a uniform speed of two miles per hour, the evidence in support of such assumption must be clear and undisputed; otherwise the question of the respective speed of the train and wagon is for the jury.
    Where a railroad company has placed safety gates and stationed a watchman at a dangerous crossing in a populous district, where there is much travel at all hours, it is the duty of the company not to accelerate but to moderate the speed of its trains when the watchman is off duty and the gates locked open.
    Where a person about to cross a railroad at a public crossing can only see a train approaching for a distance of about 585 feet, if he stops at the proper place and looks and listens, the railroad company is bound to regulate the running of its trains so as to make it possible for a driver to cross the tracks in safety if he has himself stopped, looked and listened at the proper place.
    Argued March 6, 1905.
    Appeal, No. 47, Jan. T., 1904, by plaintiff, from order of C. P. Munroe Co., Feb. T., 1901, No. 11, refusing to take off nonsuit in case of Richard F. Schwarz v. The Delaware, Lackawanna & Western Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s son and for the killing, of two horses and the destruction of a wagon. Before Ferris, P. J.

      The facts are stated in the opinion of the Supreme Court.

      Error assigned was in refusing to take off nonsuit.

      F. B. Holmes, with him Shull Shull, for appellant.
    It was not within the province of the court to determine either the speed of the train or that of the wagon. That was a question for the jury under the evidence: Freel v. Wanamaker, 208 Pa. 279; Penna. R. R. Co. v. Werner, 89 Pa. 59; Sprowls v. Morris Twp., 179 Pa. 219; Stover v. Penna. R. R. Co., 195 Pa. 616 ; D., L. & W. R. Co. v. Smith, 1 Walker, 88; Muckinhaupt v. Erie R. R. Co., 196 Pa. 213.
    Upon a state of facts admitted or proved by direct and undisputed testimony the court may pronounce the law applicable thereto; but when alleged facts are the subject of inference, from other facts, and circumstances shown by the evidence, it is the exclusive province of the jury to consider the testimony and ascertain the facts under proper instructions from the court: McGill v. Pittsburg etc., Railway Co., 152 Pa. 331; Longenecker v. Penna. R. R. Co., 105 Pa. 328; Cromley v. Penna. R. R. Co., 208 Pa. 445 ; Arnold v. Phila. & R. R. R. Co., 161 Pa. 1; Penna. R. R. Co. v. Garvey, 108 Pa. 369; Hoffmeister v. Penna. R. R. Co., 160 Pa. 568.
    The brush and piles of ties, which obstructed the view, were matters to be taken into consideration in determining whether or not the driver could have seen the train: Kuntz v. New York, etc. R. R. Co., 206 Pa. 162; Toban v. Lehigh & Wilkes-Barre Coal Co., 24 Pa. Superior Ct. 475; Faust v. Philadelphia & Reading Ry. Co., 191 Pa. 320.

      Everett Warren, of Willard, Warren £ Knapp, and A. Mitchell Palmer, for appellee,
    cited: Gangawer v. P. & R. R. R. Co., 168 Pa. 265; Kinter v. Penna. R. R. Co., 204 Pa. 497; Gerety v. Phila., etc., Railroad Company, 81 Pa. 274; Carroll v. Penna. Railroad Co., 12 W. N. C. 348 ; Schum v. Penna. R. R. Co., 107 Pa. 8.
    May 1, 1905:
   Opinion by

Mb. Justice Potteb,

This is an appeal from the refusal to take off a judgment of nonsuit. The learned trial judge felt that from the facts, the unavoidable conclusion followed that the deceased (two young men) were guilty of contributory negligence. He attempted to demonstrate this' by a mathematical calculation, and in so doing assumed that the train was moving at a uniform speed of forty miles per hour; that the wagon was moving at a uniform speed of two miles per hour; that the wagon was struck when the driver was directly in the center of the south-bound track; that when the train came into view, the driver was thirty feet from that point. In order to sustain the judgment, all of these propositions must have been founded upon clear and undisputed evidence. From our examination of the testimony, we are not able to argue that they are.

With reference to the first matter mentioned—the speed of the train—the trial judge in his opinion says : “ There is evidence, however, from which the .only fair inference is that the train was running at the rate of about forty miles an hour, and the wagon was crossing the tracks at the rate of about two miles an hour.” The opinion then goes on to say that “ The only evidence bearing upon the rate of speed of the train is that of Edwin M. Rine, the division ■ superintendent of the defendant company.” These statements entirely ignore the testimony of four witnesses, all of whom resided close to the place of the accident and heard the approaching train, and testified as follows : James Anderson, who was an experienced railroad man, having been engaged as a fireman and a brakeman on both passenger and freight trains, testified that the train was running fast, very much faster than any other morning. John Williams, who was also a railroad man of some experience, testified that the train was running fast according to the sound. “ It made more noise that morning than at any previous time. It-was running faster than usual.” Rosinda Dreher testified that she heard the train coming very fast. “ It made a noise like all trains do when they are running fast, just seemed to come like a flash.” Clara E. Kennedy testified that she heard the train coming at a very rapid rate. We are not able to find that Edwin M. Rine gave any evidence as to the speed of the train. He merely testified as to the fact of' the. train being behind schedule time, and to the orders given the engineer at Stroudsburg. There was no evidence as to what was done in consequence of these orders.

We agree with the statement of the trial court that“Where. the company has placed safety gates and stationed a watchman at a dangerous crossing in a populous district, where there is much travel at all hours, it is the duty of the company not to accelerate but to moderate the speed of its trains when the watchman is off duty and the gates locked open.” The evidence of the witnesses above quoted, would seem to justify the inference of a failure of duty upon the part of the defendant company in this respect. In view of this testimony, the question of the rate of speed of the train was for the jury. Nor do we find that there was any evidence as to the speed of the wagon when passing over the crossing. The statement of the court is merely an inference from the testimony that the ordinary walking gait of the horses was about two miles an hour, and that they could not go up the ascent to the railroad tracks at much more than that.

The trial judge properly says: “ In the absence of evidence as to whether these unfortunate young men did or did not stop, look and listen before crossing the. railroad, we must presume that they did. So also they are presumed to have stopped at the best place.” It appears from the evidence that one desiring to cross the railroad at this point could only see a train approaching from the direction from which this train came, for a distance of about 585 feet. Running at the rate of forty miles aff hour, the train would cover this distance in about ten seconds, so that, if the driver stopped and looked and listened just before crossing the track, he might be caught before clearing the furthest track if so little as ten seconds of time were required to go over the crossing. If the view of an approaching train was restricted to so short a distance as 600 feet or less, the defendant company was bound to take that fact into consideration and to so regulate the running of its trains as to make it possible for a driver to cross the tracks in safety if, when just before entering upon them, he stopped, looked and listened, and no train was within sight or sound.

The evidence also shows that the conformation of the ground in the vicinity is a bluff along the railroad, and the rapids in the creek near by make a rumbling noise that somewhat resembles that of a train, so that it may be hard to distinguish between the noise of the water and that of a train coming around the curve.

What we said in Cromley v. Penna. R. R. Co., 208 Pa. 445, is applicable here : “ It cannot be said that the driver saw the train or should have seen it, because it may have come into view in the 500 (here 585) feet to which his line of vision was at first limited, after he had looked and started to cross. It was probably moving twenty times as fast as he was, and, after coming into view, would cover the distance to the crossing before he could reach a place of safety. Nor can it be said by the court that he was negligent in not seeing and avoiding the train, if it came into his view after he had started on. • True, it was his duty to continue to look as he approached the track, but he may have been delayed by the condition of the crossing or by the rearing of his horses. Allowance must be made for these facts and for his bewilderment of mind if, when committed to the act of crossing, he was suddenly confronted with an unexpected and alarming danger.”

Our conclusion, upon the whole, is, that the evidence in this case was by no means so clear as to justify the court in finding as a matter of law that the driver and his companion were guilty of contributory negligence.

The second assignment of error is sustained and the judgment is reversed with a procedendo.


author: Pee Cueiam,

text:
    Leinbach, Appellant, v. Wolle.

      Account stated—Definition—Partnership—Equity.

    An account stated is an account in writing, examined and accepted by both parties; and this acceptance need not be expressed, but may be implied from circumstances.
    Where an account of partnership transactions is prepared by an expert, selected by all parties in interest, and a copy of the account is given to each of the parties, and one of the parties makes no objection to it, although he may not have expressly accepted it, the account as to such party is an account stated, and will be á sufficient defense to a bill in equity filed by him against the other partners for an account of partnership transactions.
    Argued March 7, 1905.
    Appeal, No. 155, Jan. T., 1904, by plaintiffs, from decree of C. P. Northampton Co., Feb. T., 1902, No. 5, In Equity, dismissing bill in equity in case of John E. Leinbach and Mary E. Leinbach, Administrators of Felix W. Leinbach, deceased, v. Clarence A. Wolle, Amanda Kemerer, Albert G. Kemerer, as Administrator of Jacob B. Kemerer, deceased, and individually and Lovina M. Seem.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Bill in equity for an account. -
    Schuyler, P. J., filed the following opinion:
    This is a bill for an account of partnership transactions on the theory, most unhappily expressed, that no settlement of the partnership accounts has ever been made. The answer sets up an account stated, and thus is raised the only question for present decision. “ It is a preliminary question which requires disposition prior to any hearing on the merits : ” Dampf s Ápp., 106 Pa. 72; Randolph’s App., 66 Pa. 178. An account stated is defined by a high authority to be “ an account in writing, examined and accepted by both parties. And this acceptance need not be express, but may be implied from circumstances : ” Story’s Eq. Jur. sec. 526. Tested by this definition is the account set up • by the defendants an account stated ? In determining this question all evidence tending to prove errors in the account must be brushed aside as being in contravention of the rule above cited which forbids all inquiry into the merits at this stage of the proceedings—a most excellent rule as -our experience in the. present case abundantly testifies.
    The account in question was prepared by an expert selected by all the parties in interest, and bears upon its face unmistakable evidence of care and skill. When completed a copy of the account was handed to each of the parties. A meeting of the parties was then held at Mr. Leinbach’s request, followed by others, at all of which the account was under investigation. After some changes had been made the account in its present form was finally accepted as correct at the last meeting by both Mr. Wolle and Mr. Kemerer. Mr. Leinbach claims that he did not expressly accept-the account. In this he is flatly contradicted-not only by Mr. Wolle and Mr. Kemerer, but by the expert. - But let It be conceded that he did not expressly accept the account. He admits that he made no objection to it, and his silence under the circumstances must be construed as the equivalent of consent. Beyond doubt, therefore, the account in question is a stated account and I so find.
    The court subsequently entered a final decree dismissing the bill.

      Error assigned was the decree of the court.

      George R. Booth and John I). Hoffman, for appellant.

      II. C. Cope and Kirkpatrick # Maxwell, for appellee were not heard.
    May 1, 1905 :
   Pee Cueiam,

.'This decree is affirmed on the opinion of the court below.


author: Pee Curiam,

text:
    Skiles’s Estate.

      Principal and surety—Contribution—Banks and banking.

    Where two directors of an insolvent bank are legally adjudged to have moneys of the bank in their possession, and one of the directors has paid a note of the bank on which he and the other .director were sureties, and it appears that the. amount of the judgment against the directors was much larger than the amount of the note, the director paying the note has no right to contribution against the other director; and the fact that the creditors of the bank subsequently settled for much less than the amount of their' claim, gave rise to no equities between the two directors.
    Argued March 7, 1905.
    Appeal, No. 28, Jan. T., 1905, by Q. P. Abl, administrator, from decree of O. C. Franklin Co., dismissing exceptions to auditor’s report in Estate of Henderson G. Skiles, deceased.
    Before Mitchell. C. J., Fell, Beown, Mesteezat and'Pottee, JJ.
    Affirmed.
    Exceptions to report of D. Watson Rowe, Esq., auditor.
    The opinion of the Supreme Court states the case.

      Error assigned was in dismissing exceptions to auditor’s report.

      William S. Eoerner, with him O. W. Weblert and Sharpe $• Elder, for appellant.

      W. R. Gillan, Q. T. Mickey, J. A. Strite and 0. 0. Bowers, for appellee were not heard.
    May 1, 1905:
   Pee Curiam,

The learned judge below stated the facts and the law very clearly and accurately as follows :

“ Ahl and Skiles were directors of a bank which had been adjudged fraudulently insolvent. Before this adjudication they united with the other directors in a joint and several obligation to the Third National Bank of Philadelphia to secure the latter against overdrafts of the bank of which they were directors. After the insolvency of the bank was declared, the obligation was sued upon and judgment obtained against the makers ; but before Ahl paid any part of it, in a proceeding in equity in the courts of Cumberland county began by the assignees of the insolvent bank against Ahl and Skiles as well as the other directors, Ahl and Skiles were each adjudged to have of the bank’s money an amount almost double that of the judgment of the Third National Bank, and judgments were entered against each pursuant to the decree. With respect to this latter liability, Ahl and Skiles cannot be regarded as ordinary debtors of the bank; the money so charged against them was not theirs, never had been, but was the bank’s. To the Third National Bank, the insolvent bank was principal debtor, and Ahl and Skiles stood as sureties. When Ahl paid to the Third National Bank the debt of his principal, he was simply applying the money of the principal, improperly in his hands, not his own at all. Plis equity extended so far as to give him a right to a credit pro tanto on the judgment of the insolvent bank against himself, and no further.

“ To allow him contribution against Skiles, would be to return him the money of the principal debtor, -which he had wrongfully appropriated. The equitable principle of contribution is based on the idea of equality of burden between co-sureties, where loss has been sustained. Where there has been no loss, there can be no burden. It is never accounted a loss where one pays what he owes, or when in paying the debt of another, he uses means that belong to the principal ; and this is just what Ahl did.

“ But, it is replied, is Skiles, who paid nothing on either account, to escape wholly ? What is that to Ahl, or representatives, who have returned to the bank less than one half of what Ahl took from its assets ? Skiles’s liability is to the insolvent bank, not to Ahl. Had Ahl been called to pay anything out of his pocket to the bank’s creditors, he might have a standing to demand enforcement of Skiles’s liability in some form, but he has not. He is not a creditor in any sense. Had Skiles paid in full, not a dollar so paid would have found its way to Ahl.

“ Nor does the fact that the creditors of the bank have been compounded with at the rate of twenty cents on the dollar, give rise to any equities between these parties. From such composition this results,—the creditors have received less than they were entitled to, because Ahl and Skiles were not required to pay their respective liabilities to the bank in full, and Ahl and Skiles have, in unequal amounts, this money to which they have no moral right, but to which there is no one who can assert legal claim against them. There is here no loss -to be apportioned, no burden to be distributed, and equity will leave the parties just where it finds them.”

The decree is affirmed on this opinion.


text:
    Bryden’s Estate.

      Lunacy—Weak-minded persons—Evidence—Act of June 19, 1901, P. L. 574.
    Before an estate can be taken from the owner and transferred to a guardian under the Act of June 19, 1901, P. L. 574, it must be established that the respondent is so weak in mind that he is unable to take care of his property, and in consequence thereof is liable to dissipate or lose the same and to become the victim of designing persons.
    The act is for the protection of the respondent and is not intended to prevent the owner of an estate from doing with his own what he pleases in order that his children may inherit a greater amount; nor is favoritism of one child over another evidence that the respondent is the victim of a designing person.

      Proceedings were instituted'under the Act of June 19, 1901, P. L. 574, against a woman seventy-six years old. The proceedings were instituted by five of the seven children of the respondent. Her estate consisted of about $50,’000) largely in bonds. The bonds were left in the hands óf a friend and neighbor who was the vice president of a bank. The latter had charge of them for twelve years. The income was deposited in bank and drawn'by checks signed by a daughter who lived, with her mother and took care of her. During respondent’s illness she encroached slightly on her principal, and she also presented to the daughter who lived with her a horse and harness costing $650. She also gave her daughter other presents amounting to about $2501 The total encroachment on capital was about $1,200. Respondent appeared in court and seemed to possess the mind and memory usually found in. persons of her age. A number of disinterested witnesses testified'to her capacity. Held, that the petition was properly dismissed.
    Argued April 12, 1905.
    Appeal, No. 103, Jan. T., 1905,by A. M. Bryden, John McG-. Bryden, Elizabeth B. DeMun, James J. Bryden and Helena H. Hughes, from decree of O. C. Luzerne Co., No. 65 of 1904, dismissing petition against an alleged weak-minded person in Estate of Elizabeth Biyden.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Petition against an alleged weak-minded person under Act of June 19, 190lj P. L. 574.
    Freas, P. J., filed the following opinion:
    The petitioners are five of the seven children of Elizabeth Bryden, and they ask for the appointment of a guardian for the estate of their mother on the ground that “ she has become so weak in mind that she is unable to take care of her property, and in consequence thereof is liable to dissipate or lose the same and to become the victim of designing persons.”
    Her estate consists of a house and lot in- which she lives, worth $6,500; and bonds amounting to $42,000, yielding an annual income of about $2,075. These bonds are in the possession of W. L. Watson, vice president of the First National Bank, of Pittston, who reinvests the funds as the bonds mature, and collects the interest, which latter he deposits in cash in the bank to the credit of Mrs. Bryden. The money is drawn out of the bank by checks signed by Agnes Bryden, her daughter, who holds a power of attorney from her mother, authorizing her so to do. Mr. Watson has been a friend and neighbor of the family since 1861, and for the past twelve years has had charge of the bonds, and as he states, it has been a voluntary work of kindness on his part. The entire income has lately been expended, and in addition the sum of $1,200 was spent, which money came from a mortgage not in Mr. Watson’s care. Otherwise the principal has not been encroached upo-n.
    Mrs. Bryden lives in her own home with her only unmarried child Agnes, who is about thirty-five years old. The mother is perfectly satisfied -with her daughter’s services, and the disinterested witnesses say she has faithfully cared for her mother. For the past four years Mrs. Bryden has been in ill health and the services of a nurse were necessary, whose pay is $12.00 per week and her board. She keeps a servant at $8.00 per week, and pays $18.00 per month for the care of.a horse. Agnes does the buying, runs the household, pays the bills, and assists in the care of her mother. She lias also doctor and drug bills, household expenses, taxes, insurance and the usual expenses incident to keeping alive and owning property. A little figur- • ing will show that $2,075 per year is not too much with which to pay these necessary expenses. The $1,200 obtained from - the mortgage were spent in these ways: 'Mrs. Bryden presented -Agnes with a horse and harness costing $'650 and she had a trap repaired at a cost of $100. These.are used by the mother • as well as the daughter. ’ She also gave Agnes a diamond pendant wórth $175, and paid $50.00 and $75.00 for repairs to . a sealskin coat given; Agnés by her father in his lifetime.' Her house was ¿fire and she .spent more money in repairs than she got from the insurance company. Agnes took, trips with her mother and two trips alone to New York city. She also gave ' $120 to her son Alexander. It is insisted by the petitioners "that the expenditure of the $1,200 is evidence of a disposition to dissipate or lose the estate, and that she may become the victim of designing persons.' The real causes of this proceed- ■ ing are the gift of the- horse and pendant to Agnes, and the • failure of other children to obtain money from their mother. -That she should discriminate-in favor .of her only unmarriéd ' child who lives with her and. cares: forher,- is not surprising or unnatural. While the horse was a gift to .Agnes .-yet its use - and: enjoyment are as much the mother’s.’ It is her plain duty ■ under the ■ circumstances; to dress her daughter,' and we. see nothing extravagant in paying for the repairs of a coat given the daughter by her father. We have left, then, the gift of the pendant, and we need not say that a mother seventy-six years old, worth $48,500, may buy her daughter a piece of jewelry worth $175 without being thought a victim of a designing person. Under any view of the case this woman has not lived extravagantly, nor has she dissipated her estate.
    But while thus considering her expenditures we must not lose- sight of the basic principle involved, as laid down in Lines v. Lines, 142 Pa. 149, that a man may do what he pleases with his personal estate during his life. He may even beggar himself and his family if he chooses to commit such an act of folly. When he dies, and then only, do the rights of his heirs attach to his estate. The Act of June 19, 1901, P. L. 574, has not changed the law in this respec-t one iota. Before an estate can be taken from the owner and transferred to a guardian, it must be established that the respondent is so weak in mind that he is unable to take care of his property, and in consequence thereof is liable to dissipate or lose the same and to become the victim of designing persons. The act is for the protection of the respondent and is not intended to prevent the owner of an estate from doing with his own what he pleases in order that his children may inherit a greater amount. Nor is favoritism of one child over another evidence that the respondent is a victim of a designing person, for a parent may make such distribution among his children as he may see fit, either during life or by will after his death, so long as it is the free and conscious act of a sane mind. Applications of this nature are not to be encouraged and should not be granted except in a clear case. As is declared in Hoffman’s Estate, 209 Pa. 357, i.t is a dangerous statute, easily capable of abuse by designing relatives to accomplish the very wrong intended to be guarded against, and therefore to be administered by the courts with .the utmost caution and conservatism. ít is the policy of our law to allow an owner to manage his own estate, and it can be taken from him only for his own personal good and not because his children think they or some one for. them can manage it to better advantage.
    ' The respondent is very far from being so weak in mind that she is unable to take care of her property. She appeared in court under the most trying circumstances a person can be subjected to, and seemed to possess the mind and memory usually found in persons of her age, and all disinterested witnesses were of this opinion. She allows her securities to remain in the hands of Mr. Watson where they have been for twelve years and who is well qualified to execute the trust. In fact if this court appointed a guardian, Watson would be selected as the friend of the respondent best qualified for the position. The estate cannot be converted without his knowledge or consent, and in case of danger he would be the first to give the alarm. All that can reasonably be expected of a woman seventy-six years old, in the management of her estate, is the selection of a competent and trustworthy agent, and this she has done. The court could do no more.
    And now October 15, 1904, the petition is refused.

      JSrror assigned was decree dismissing petition..

      Oormae Francis Bohan, for appellants.

      B. R. Jones, with him Thomas II. Atherton, for appellee.
    May 1, 1905 :
   Per Curiam,

This is a very clear case of attempt by children to take their mother’s property out of her control not in her interest but in their own, and is an illustration of the dangers of the statute referred to in Hoffman’s Estate, 209 Pa. 357.

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


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

      School law—School directors—Residence of pupils.

    Where school directors, in the exercise of sound discretion and honest judgment, decide that certain children are not residents of the district, and therefore not entitled to attend the schools of the district, their decision cannot be reviewed by a court and jury.
    Argued April 13, 1905.
    Appeal, No. 47, Jan. T., 1905, by plaintiffs, from order of C. P. Luzerne Co., May T., 1904, No. 179, on petition for mandamus in case of Commonwealth.' ex rel. Ira Boyd v. W. B. Wenner, et al., School Directors of Nescopeek Borough.
    Before Mitchell, C. J., Brown, Mes-, trezat, Potter and Elkin, JJ.
    Affirmed.
    Petition for mandamus.
    Wheaton, J., filed the following opinion :
    The relator demands an issue, to be determined by a jury.
    The facts which he- seeks to have so determined are, (1) whether relator is or is not a resident of the school district of Nescopeek borough, and (2) whether the children of the relator named in the petition for mandamus, are or are not residents of said school district.
    The proposition of law set out in the traverse, that said children are entitled to attend the common schools of. said district, is dependent upon the settlement of the questions of fact stated.
    School directors are required by the Act of May 8, 1854, P. L. 617, “ to establish a sufficient number of public schools for the education of every individual between the ages of six and twenty-one years, in their respective districts.”
    The residents of' one school district are not entitled to free admission to and education in schools of an adjoining district. The taxes levied by a school district are for the education of. the children of that district, and are not applicable to the education. of the children, of - another district.
    Mere physical presence of a child in the district is not sufficient to give it the right to attend the common schools of that district: Com. v. Upper Swatara Twp. School Dist., 164 Pa. 608; Com. v. Directors Brookville Boro. School Dist., 164 Pa. 607. .
    When the question of residence and right to admission is therefore raised it is for the determination of the board of directors of the particular district.
    The decision of the board, after hearing and investigation, is quasi judicial.
    That a judge or jury might reach a different conclusion upon the evidence presented is,of no concern.

      As was said by Mr. Justice Clark, in McCrea v. Pine Twp. School District, 145 Pa. 550, “ The board, by the statute, is empowered both to employ teachers, and for any one of these causes to dismiss them.”
    So, in the case at bar, being required by the statute to establish a sufficient number of public schools for the education of every individual between the ages of six and twenty-one years, in their respective districts, they are equally required to protect those schools from the encroachments of those who are not entitled to admission therein.
    It would greatly impair the government and efficiency of the common schools if the honest judgment and the discretion of the board, exercised in good faith, could be reviewed and reversed by a jury.
    The answer to the alternative writ in the case at bar, sets out that “respondents as a board of school directors investigated the matter of said Boyd’s residence (and) were unanimously of the opinion that he was a nonresident.”
    This is not traversed, nor is the fairness and thoroughness of this investigation brought into question.
    The depositions, taken by agreement of both parties, amply sustain the allegation of investigation by the board, and its fairness, and the only complaint seems to be, that the board has not reached such a conclusion as to the fact ■ of nonresidence as a jury might reach.
    But, if my view of the laiv is correct, it is immaterial what a jury might find, and the trial judge would be bound to so instruct.
    . For this reason, therefore, it would be useless to grant an issue, and the law does not require it.

      Error assigned was the order of the court refusing the issue.

      D. 0. Coughlin, for appellant.

      George K. Powell, for appellees.
    May 1, 1905:
   Per Curiam,

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


author: Per-Curiam,

text:
    Commonwealth v. Johnson, Appellant.

      Criminal law—Murder—Degree—Accessory before the fact—Evidence.

    Where a person indicted for murder pleads guilty, a finding by the court that the crime was murder of the first degree will be sustained, where the evidence Shows that the prisoner confessed in the presence of at least three witnesses, that he participated in the crime so far as planning the means of perpetrating it and naming the perpetrators, and that his confession was corroborated by other circumstances attending the • commission of the crime.
    Argued April 17, 1905.
    Appeal, No. 98, Jan. T., 1905, by defendant, from judgment of O. & T. Bradford Co., Dec. T., 1904, No. 11, of sentence of guilty of murder of the first degree in case of Commonwealth v. Bigler Johnson.
    Before Dean, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Indictment for murder.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the sentence of the court,

      Wm. Eoyle and L. T. Hoyt, for appellant.
    The presumption against the accused is no higher than that the homicide is murder in the second degree, and it lies on the commonwealth to establish the facts and circumstances which constitute murder in the first degree: Commonwealth v. Drum, 58 Pa. 9; Jones v. Com., 75 Pa. 403 ; Kelly v. Com., 1 Grant, 484 ; Com. v. Cleary, 148 Pa. 26; Keenan v. Com., 44 Pa. 55; Com. v. Kandolph, 146 Pa. 83.

      Charles E. Mills, district attorney, and William Maxwell, Stephen H. Smith and David E. Kaufman, for appellee.
    May 1, 1905:
   Per-Curiam,

The defendant pleaded guilty of murder on a bill duly found against him. There was no evidence to fix the degree at the time the plea was entered. On February 16,1905, after a full hearing, the grade of the crime was fixed by the court below as murder of the first degree and sentence was imposed accordingly. We have now this appeal by the defendant, averring that the court erred in fixing the grade higher than murder of the second degree. The learned judge says in his finding: “ After careful, earnest and conscientious consideration of all the evidence and circumstances of the case, as disclosed by the examination of witnesses as directed by the act of assembly, we determine and fix the degree of crime of which the prisoner is-convicted by confession to be that of murder of the first degree.”

This finding is alleged to be error because Johnson’s crime does not come under any of the statutory definitions of murder of the first degree. The statute says: “ All murder, which shall be perpetrated by means of poison or lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration of, or attempt to perpetrate any arson, rape, robbery, or burglary shall be deemed murder of the first degree and all other kinds of murder shall be deemed murder of the second degree.”

Under the evidence, this was within the very words of the statute a deliberate and premeditated killing. Johnson, the-defendant, confessed in the presence of at least three witnesses that he participated in the crime so far as planning the means of perpetrating it and naming the perpetrators. This made him an accessory before the fact. It is true,-that even confessions of a crime such as this, have sometimes, subsequently, been demonstrated false, but such cases are exceptional. Here the corroborating circumstances attending the commission of the crime show -this confession to have been true in all material particulars. Prisoner’s confession, in view of those circumstances, fixes the grade of the offense as murder of the first degree for, according to the 44th section of the Act of March 31, 1860, P. L. 427, he must be punished the same as if he were a principal.

This crime, then, being willful, deliberate and premeditated, was at once raised from murder of the second degree as the prisoner had confessed, to murder of the first degree, which the evidence proved and as the court correctly found.

The judgment of the court below is affirmed and it is directed that the record be remitted that the judgment may be carried into effect according to law. .


text:
    Pierce, Appellant, v. Schoonover.

      Trusts and trustees—Accounts—Findings of fact—-Finality—Review.

    Where a master and the court below have passed upon the accounts of a trustee and have found from sufficient evidence that there were no errors or omissions in the accounts, the decree of the court below will not be disturbed.
    Argued April 17, 1905.
    Appeal, No. 179, Jan. T., 1904, by plaintiff, from decree of C. P. Centre Co., April T., 1886, No. 837, dismissing exceptions to master’s report in case of .Rosie L. Pierce v. O. L. Schoonover.
    Before Dean, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Exceptions to master’s report.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was in dismissing exceptions to master’s report.

      0. /S'. McCormick, for appellant.

      S. D. Cfettig, with him John J. Bower and W. JD. Zerby, for appellee.
    May 1, 1905 :
   Per Curiam,

Schoonover, the appellee, and J. H. Pierce, the husband of the appellant, became the owners of certain real estate in Centre county, prior to April 25, 1885; Pierce’s interest became encumbered by judgment debts, contracted by him. Then, he and Schoonover, for the purpose of protecting Pierce’s interest and preventing litigation in reference to the title, entered into an agreement by which Schoonover bought in Pierce’s interest at sheriff’s sale and deed was made to him. Subsequently, the property was seized again in execution by the creditors of Pierce, the husband of the appellant, and was sold by the sheriff. Schoonover acquired the title of Pierce for the sum of #4,000, and by an agreement with Mrs. Pierce, providing for his reimbursement, agreed to reconvey the property on being paid his disbursements if they were paid before the expiration of a year. Before the end of the year, the appellant tendered to Schoonover a sufficient sum of money to reimburse him for his expenses and demanded a reconveyance of the property. Schoonover declined to reconvey, alleging that appellant must likewise repay him the $4,000 expended by him in acquiring the outstanding title of her husband; thereupon, the appellant, Mrs. Pierce, filed a bill in equity which resulted in a decree by the court that Schoonover execute to appellant a deed of conveyance for the property on the payment of $5,246.64, with interest from November 9, 1889, less the excess of the amount received by him for rents and the amount paid by him for taxes and insurance. ■

From this decree Schoonover appealed to this court, which affirmed the decree of the court below. Three masters were appointed to pass on the exceptions to Schoonover’s account; the last one was E. R. Chambers, Esq., who passed on the exceptions and found a balance due the appellee of $2,459.75, with interest from September 7, 1903. Judge McClure, specially presiding, heard the exceptions to the report of the master and made a final decree confirming the report of the master.

The appellant fails to convince us of any mistake or omission in the final adjudication nor has she made any effort to have the same opened or to go back of it, nor is there any evidence of any error or omission in fixing the amount, nor has she shown anywhere that Schoonover received any rentals or moneys from the use of any part of the property either before or since Judge Simonton’s decree, for which he has not accounted.

In view of this record, it is not our duty to disturb the adjudications which have been so carefully passed upon by both judges in the court below. We fail to find any manifest error in either decree. The exceptions are overruled and the decree of the court below is affirmed.


text:
    Commonwealth v. Caulfield, Appellant.

      Constitutional law—Title of act—Oleomargarine—Act of May 29, 1901, P. L. 327.
    The Act of May 29, 1901, P. L. 327, relating to the sale of oleomargarine is constitutional.
    Argued April 19, 1905.
    Appeal, No. 39, Jan. T., 1905, by defendant, from judgment of Superior Court, Oct. T., 1904, No. 95, affirming judgment of Q. S. Blair Co., June T., 1903, No. 4, on verdict of guilty in case of Commonwealth v. Phillip E. Caulfield.
    Before Dean, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Appeal from Superior Court.

      Error assigned was judgment of the Superior Court.

      Simon JR. Huss, with him Thomas H. Greeny, for appellant.

      Wm. L. Hides, district attorney, Thomas G. Hare and A. H. Woodward, for appellees were not heard.
    May 1, 1905:
   Per Curiam,

Although there are a number of other assignments of error, we did not, when we granted the appeal in this case, intend to consider any of them except the one averring the Pennsylvania statute of June 24,1895, P. L. 212 to be unconstitutional. The Superior Court act is imperative upon us in reference to this last averment. As to the other alleged errors we can see nothing of such public importance as calls for our interference with the judgment of the 'Superior Court. As to the unconstitutionality of the act, we have no doubt it is constitutional.

The defendant was indicted in the quarter sessions of Blair county for selling oleomargarine in violation of the Act of May 29, 1901, P. L. 327, in that he sold and offered for sale a substance colored to look like butter, which was not butter. The records of the quarter sessions established his guilt. Is the statute, under which he was convicted, constitutional? The opinion of the Superior Court, as well as the authorities cited by Judge Rice who rendered that opinion, conclusively shows that the act in question is in no sense a violation of the constitution of this state. The case of Plumley v. Massachusetts, 155 U. S. 461, demonstrates that the statute does not violate the constitution of the United States. There is no reason why we should stuff the reports with a repetition of these decisions. While they remain in the reports and the statute remains unrepealed, they constitute a clear exposition of the law.

All the assignments of error are overruled, and the judgment of the Superior Court is affirmed.

       Also reported 15 Sup. Ct. Repr. 154. Reporter.


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    Fox, Appellant, v. Clearfield Wooden Ware Company.

      Negligence—Master and servant—Contributory negligence—Machinery— Nonsidt.

    Where an employee without any necessity whatever leaves a safe position where he has been placed at work, and while in a position where he ought not to be comes in contact with a projecting bolt on a shaft and is injured, he cannot recover from his employer.
    The employer does not guarantee his servant against any and all accidents that may happen within the building, if the latter chooses to put himself in contact with machinery with which his duty does not call him to meddle, or to operate.
    Argued April 19, 1905.
    Appeal, No. 73, Jan. T., 1905, by plaintiff, from order of C. P. Clearfield Co., May T., 1904, No. 112, refusing to take off nonsuit in case of J. S. Fox v. Clear-field Wooden Ware Company.
    Before Dean, Brown, Mestrézat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Smith, P. J.
    The opinion of tbe Supreme Court states the case.

      Error assigned was refusal to take off nonsuit.

      A. L. Cole, of Cole $ Kuntz, for appellant.

      David L. Krebs, of Krebs $ Liveright, for appellee.
    May 1, 1905 :
   Pee Cueiam,

The facts in this case are almost exactly those in Tomaczewski v. Dobson, 208 Pa. 324. We held in that case, that a defective lever was not a safety device put on a machine to prevent accident, and that where the employee had no duty to perform in operating the defective machine, the employer was not liable for his injury. According to plaintiff’s own statement, he was nearly two feet from the place where it was his duty to be, when he was hurt, that is, he was at a place where, in the performance of his duty, he had no business to be. While in that position, he was injured; not because his employer had not furnished him with a safe place to work nor a safe tool to work with, but because, being where he ought not to have been, a projecting bolt on a shaft caught and injured him; there must be some connection between the duty of the employee and the alleged defective machinery. The employer does not guarantee his servant against any and all accidents that may happen within the building, if the latter .chooses to put himself in contact with machinery with which his duty does not call him to meddle, or to operate.

We discover no error in the record and the judgment is affirmed.


author: Mr. Justice Beown,

text:
    Stamey, Appellant, v. Dunlap.
    Argued Oct. 18, 1904.
    Appeal, No. 21, Oct. T., 1904, by plaintiffs, from judgment of C. P. Indiana Co., June T., 1903, No. 143, on verdict for defendant in issue framed between W. H. Stamey, J. C. King and E. D. Carter as plaintiffs and John Dunlap as defendant.
    Before Mitchell, C. J., Dean, Fell, Beown, Mesteezat, Pottee and Elkin, JJ.
    Affirmed.
    April 10, 1905:
   Opinion by

Mr. Justice Beown,

The questions raised by the assignments of error in this case are the same as those raised in Stamey et al. v. Barkley, 211 Pa. 313, in which we have this day filed an opinion affirming the judgment below, and, for the reasons therein given, this judgment is affirmed.


author: Mr. Justice Brown,

text:
    Stamey, Appellant, v. Dunmire.
    Argued Oct. 18, 1904.
    Appeal, No. 23, Oct. T., 1904, by plaintiffs, from judgment of C. P. Indiana Co., June T., 1903, No. 145, on verdict for defendant in issue framed between W. H. Stamey, J. C. King and E. D. Carter as plaintiffs and Solomon Dunmire as defendant.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ,
    Affirmed.
    April 10, 1905:
   Opinion by

Mr. Justice Brown,

The questions raised by the assignments of error in this case are the same as those raised in Stamey et al. v. Barkley, 211 Pa. 313, in which we have this day filed an opinion affirming the judgment below, and, for the reasons therein given, this judgment is affirmed.


text:
    Stamey, Appellant, v. Harbison.
    Argued Oct. 18, 1904.
    Appeal, No. 27, Oct. T., 1904, by plaintiffs, from judgment of C. P. Indiana Co., June T., 1903, No. 149, on verdict for defendant in issue framed between W. H. Stamey, J. C. King and E. D. Carter as plaintiffs and Emma Harbison et al., as defendants.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    April 10, 1905 :
   Opinion by

Mr. Justice Brown,

The questions raised by the assignments of error in this case are the same as those raised in Stamey et al. v. Barkley, 211 Pa. 313, in which we have this day filed an opinion affirming the judgment below, and, for the reasons therein given, this judgment is affirmed.


text:
    Stamey, Appellant, v. McCurdy.
    Argued Oct. 18, 1904.
    Appeal, No. 36, Oct. T., 1904, by plaintiffs, from judgment of C. P. Indiana Co., June T., 1903, No. 158, on verdict for defendant in issue framed between W.'H. Stamey, J. C. King and E. D. Carter as plaintiffs and Della J. McCurdy et al., as defendants.
    B efore Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    April 10, 1905:
   Opinion by

Mr. Justice Brown,

The questions raised by the assignments of error in this case are the same as those raised in Stamey et al. v. Barkley, 211 Pa. 313, in which we have this day filed an opinion affirming the judgment below, and, for the reasons therein given, this judgment is affirmed.


text:
    Stamey, Appellant, v. McCreery.
    Argued Oct. 18, 1904.
    Appeal, No. 37, Oct. T., 1904, by plaintiffs, from judgment of C. P. Indiana Co., June T., 1903, No. 159, on verdict for defendants in issue framed between W. H. Stamey, J. C. King and E. D. Carter as plaintiffs and A. McCreery as defendant.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    April 10, 1905:
   Opinion by

Mr. Justice Brown,

The questions raised by the assignments of error in this case are the same as those raised in Stamey et al. v. Barkley, 211 Pa. 313, in which we have this day filed an opinion affirming the judgment below, and, for the reasons therein given, this judgment is affirmed.


author: Mb. Justice Bbown,

text:
    Stamey, Appellant, v. Templeton.
    Argued Oct. 18, 1904.
    Appeal, No. 42, Oct. T., 1904, by plaintiffs, from judgment of C. P. Indiana Co., June T., 1903, No 165, on verdict for defendant iii issue framed between W. H. Stamey, J. C. King and E. D. Carter as plaintiffs and A. S. Templeton as defendant.
    Before Mitchell, C. J., Dean, Fell, Bbown, Mestbezat, Potteb and Elkin, JJ.
    Affirmed.
    April 10, 1905 :
   Opinion by

Mb. Justice Bbown,

The questions raised by the assignments of error in this case are the same as those raised in Stamey et al. v. Barkley, 211 Pa. 313, in which we have this day filed an opinion affirming the judgment below, and, for the reasons therein given, this judgment is affirmed.


text:
    Stamey, Appellant, v. Bowman.
    Argued Oct. 18, 1904.
    Appeal, No. 46, Oct. T., 1904, by plaintiffs, from judgment of C. P. Indiana Co., June T., 1903, No. 171, on verdict for defendant in issue framed between W. H. Stamey, J. C. King and E. D. Carter as plaintiffs and Abram Bowman as defendant.
    Before Mitchell, C. J., Dean, Fell, Bbown, Mestbezat, Potteb and Elkin, JJ.
    Affirmed.
    April 10, 1905:
   Opinion by

Mb. Justice Bbown,

The questions raised by the assignments of error in this case are the same as those raised in Stamey et al. v. Barkley, 211 Pa. 313, in which we have this day filed an opinion affirming the judgment below, and, for the reasons therein given, this 'judgment is affirmed.


text:
    Stamey, Appellant, v. Waddle.
    Argued Oct. 18, 1904.
    Appeal, No. 47, Oct. T., 1904, by plaintiffs, from judgment of C. P. Indiana Co., June T., 1903, No. 172, on verdict for defendant in issue framed between W. H. Stamey, J. C. King and E. D. Carter as plaintiffs and J. E. Waddle as defendant.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    April 10, 1905 :
   Opinion by

Mr. Justice Brown,

The questions raised by the assignments of error in this case are the same as those raised in Stamey et al. v. Barkley, 211 Pa. 313, in which we have this day filed an opinion affirming the judgment below, and, for the reasons therein given, this judgment is affirmed.