text:
    Dickinson’s Estate.

      Will—Gift of unconsumed portion of estate—Husband and wife.

    A devise of an estate with power to convert and consume, but with a gift over of an unconsumed part on the death of the first taker, carries with it only the power of actual consumption in good faith. A mere nominal conversion, such as marking a judgment to his own use by the first taker, will not prevent the gift over from taking effect.
    Words like “wish,” “desire,” etc., are prima facie precatory only, but where used to express the will or intention of the testator, they are mandatory.
    Where a wife devises and bequeaths the whole residue of her estate to her husband absolutely, and follows the absolute gift with these words “should my husband not expend the whole of my estate, then it is my desire at his death to give so much of it as remains to my sister and my two brothers,” the administratrix of the wife after the death of the husband is entitled to the estate not consumed by the husband; and it is immaterial that two judgments which were part of the wife’s estate had been assigned and transferred by the husband as his wife’s executor to himself individually.
    Argued Feb. 1, 1904.
    Appeal, No. 242, Jan. T., 1903, by Is-real B. Dickinson, from decree of O. C. Montgomery Co., Sept. T., 1903, No. 5, awarding citation in estate of Sarah J. Dickinson, deceased.
    Before Mitchell, Ci J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.-
    Petition for citation to Israel B. Dickinson, executor of Henry B. Dickinson, deceased.
    Solly, P. J., filed the following opinion:
    Sarah Jane Dickinson, by her will, after directing the payment of her debts and funeral expenses, disposed of her estate in the following language : “ All the rest, residue and remainder of my estate, real, personal and mixed, and wherever situated, I give, devise and bequeath unto my beloved husband, Henry B. Dickinson, his heirs and assigns. I give, devise and bequeath at the option of my husband all my wearing apparel to my sister Annie Ulrich and my sister-in-law Elizabeth Dickinson, in such manner as he may see fit. And should my husband not expend the whole of my estate, then it is my desire at his death to give so much of it as remains to my sister, Annie Ulrich, and my two brothers, Algernon J. Martin and John J. Martin.”

      Letters testamentary were duly granted to the surviving husband. He died December 6, 1902, and since then letters of administration d. b. n. c. t. a. on the estate have been granted to the said Algernon J. Martin.
    Among the assets of the estate were the following securities: A mortgage given by one Levi M. Landis, to secure the payment of $1,000, and two judgments against her sister, Annie E. Ulrich, entered in the court of common pleas of Philadelphia county, one for $2,300, and the other for $500, which were both marked to the use of her husband, after her death. The mortgage still stands in her name.
    The administrator of the wife’s estate claims that by the terms of her will these securities belong to it, not having been converted and consumed by the husband, and he is entitled to them for administration and distribution under her will; that the intention of the testatrix -was to give her husband the full use of her estate with power to consume it, and whatever remained unconsumed or unexpended at his death, she bequeathed to her sister and brothers.
    The husband’s executor on the other hand, claims that the estate vested in him absolutely, and that the subsequent clause of the will expressing her desire to give any unexpended part thereof at her husband’s death, is not testamentary, but precatory merely.
    If the intent of the testatrix as ascertained from the four corners of the will was to give to her husband the use and enjoyment of her estate with the right to consume it, and to exercise full ownership over it, but in case he did not expend or consume all of it in his lifetime, then to give what remained unexpended or unconsumed at his death to other persons, then the prayer of the petition must be granted and decree made.
    ' The first sentence of the paragraph of the will devises and bequeaths the whole estate to the husband absolutely. The next sentence bequeaths her wearing apparel to her sister ‘ and sister-in-law at the husband’s option, which is merely precatory. The concluding sentence expresses the desire of the testatrix to give the whole of her estate, not expended by her husband, to her sister and brothers. It is her wish to thus give her estate. It is not her desire or wish or recommendation that her husband shall give the unexpended estate to them. The estate is not committed to him with expressions of desire as to how he disposed of it. The testatrix makes the disposition herself. She gives him the estate. This carries with it the power to convert, sell, convey, assign and transfer. He could have expended the whole of it, for there is no limitation, restraint or condition attached to the bequest. But if he did not consume or expend it, then what remained at his death she gave to others. This is the reasonable interpretation of the will. He did not consume the whole; what remains, therefore, is her estate, and passes by her will to the legatees. ' -
    Words in a will expressive of desire, recommendation and confidence may amount to a declaration of trust, when it appears from the parts of the will that the testator intended not to commit the estate to the devisee or legatee or the ultimate disposal of it to his kindness, justice or discretion: Pennock’s Estate, 20 Pa. 268. The principle of this case has been uniformly followed in a long line of later ones marking the distinction between words and expressions which are regarded as either precatory or mandatory: Jauretche v. Proctor, 48 Pa. 466 ; Church v. Disbrow, 52 Pa. 219 ; Burt v. Herron, 66 Pa. 400 ; Bowlby v. Thunder, 105 Pa. 173 ; Hopkins v. Glunt, 111 Pa. 287; Boyle v. Boyle, 152 Pa. 108.
    Where the words “wish” and “ desire’’are used in expressing a desire for an act to be done by some person named by the testator, they are generally precatory merely, but no such presumption necessarily arises when the words are used to express the intention and will of the testator. In such cases they are held to be mandatory.
    Taylor v. Martin, (S. C.) 20 W. N. C. 27. This case is closely analogous to the one at bar. The testator devised and bequeathed all his estate to his wife for her sole and separate use, behoof and control forever. In the next item of the will, the testator stated that it was his desire and wish that after his wife’s death a certain house and lot should go to his son. And in the next item he further stated that it was also his desire and wish that after his wife’s death a certain other house and lot should go to his daughter for life, and after her death to his son.
    The widow died in possession of the last mentioned house, which by her will she devised to her granddaughter absolutely, it was held that the widow took but an estate for life, and that the words “wish’’.and “desire” as used in the will were not precatory but mandatory as expressing the intention of the testator to dispose of the estate, and that the property passed to the son by his father’s will.
    If. a testator in one part of his will gives an estate of inheritance in lands, or an absolute interest in personalty, and in subsequent passages unequivocally shows that he means the devisee or legatee to take a lesser estate only, the prior gift is restricted accordingly: Sheets’s Estate, 52 Pa. 257. And he may vest such interest in his legatee that he can exercise - all the rights of an absolute owner by sale, conversion, investment in his own name, use and consumption, without appeal in his lifetime, and yet the estate be limited so that at his decease whatever re: mains unconsumed will go over: Good v. Fichthorn, 144 Pa. 287.
    The intention of the testatrix, as we gather it, was to give her estate to her husband, and if he did not expend, use or consume the whole of it, then what remained at his death, she gave to her sister and brothers, the word “ desire ” being mandatory, not precatory merely.
    The fact that the two judgments against Mrs. Ulrich were assigned and transferred by the executor to himself individually, does not make them his property and part of his estate, for as was said in Tyson’s Estate, 191 Pa. 218, it was not within his power to defeat his wife’s intention respecting the unexpended part of her estate by such act. They are none the less her estate although standing in his name, and the orphans’ court has control over them and the power to order their transfer to her administrator.
    The prayer of the petition is granted.

      Error assigned was decree awarding citation.

      Conrad S. Shelve and Eugene E. Egbert, for appellant.

      A. M. Place and Henry Ereedley, for appellee, were not heard.
    April 18, 1904:
   Per Curiam,

The decree is affirmed on the opinion of the learned judge below.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    O’Donnell’s Estate.

      Will—Charitable bequest—Masses for repose of soul—Act of April 26, 1855, P. L. 328.
    While a gift to a legatee by name will not be held to be for a religious or charitable use merely from the professional character of the legatee, yet if it was to him in such character and for such use, the fact that it was to him absolutely and by name will not protect it from the operation of the act of 1855.
    A devise and bequest of an estate to “Rev. Richard Kennahan, or his successor of the St. Matthew’s Church óf Conshohoelten, Pennsylvania, for the purposes of saying masses for myself, my now wife Ellen, and my deceased wife, Mary,” is a charitable gift, and if made within thirty days from the death of the testator, void under the Act of April 26, 1855, P. L. 328.
    Argued Feb. 1, 1904.
    Appeal, No. 260, Jan. T., 1903, by Richard Kennehan, from decree of O. G. Montgomery Go., May T., 1903, No. 23, awarding citation in estate of Terrence O’Donnell, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Petition for citation.
    The testator by his will left the income of two thirds of his estate unto his wife Ellen, and the income of the remaining one third to his son, Richard W., and then provided :
    “ Item—And after the death of my said wife and son I give, devise and bequeath all of my estate to Rev. Richard Kennahan, or his successors of the St. Matthew’s Church, of Conshohocken, Pennsylvania, for the purpose of saying masses for myself, my now wife Ellen, and my deceased wife Mary.”
    Testator died within thirty days from the making of his will.
    Richard W. O’Donnell, the son of the testator, filed a petition praying for a citation on the trustee under his father’s will to file an account, and to pay over to petitioner one third of the whole estate absolutely. The court in ah opinion by Solly, P. J., entered a decree awarding a citation.

      Error assigned was decree awarding citation.

      Henry M. Tracy, for appellant.

      E. L. Hallman, for appellee.

      April 18, 1904:
   Per Curiam,

The contention of the appellant that the bequest was a personal one to him as compensation for services to be rendered, and therefore not within the act of 1855, cannot be sustained. The bequest it is true is to him by name, but it is plainly to him not as an individual, but by virtue of his office for the words are “ to Rev. Richard Kennahan, or his successor, of St. Matthew’s church,” and “ for the purposes of saying masses ” for testator and his wife. It thus appears that the bequest is to appellant not only as priest of the church named, but also for a specific use and is thus charged with a trust. While therefore under the rules of the church as set forth in appellant’s answer to the petition the money when earned might become the absolute property of appellant to be spent as he pleased, yet it can only be earned by the execution of the trust, to wit: the performance of the duties imposed by the testator’s will.

These duties are clearly a religious use within the act of 1855. The case is not distinguishable in this respect from Rhymer’s Appeal, 93 Pa. 142, where it was said by the late Chief Justice Sterrett, “ the testator has clearly declared the use or purpose to which his bequest shall be applied. It is to be expended in masses for the benefit and repose of his soul. While this may not be regarded as a charitable use within the accepted meaning of the word, it is certainly in every proper sense of the term, and according to the obvious intendment of the act, a religious use.”

The case of Hodnett’s Estate, 154 Pa. 485, cited by appellant is not at all in conflict with the views now expressed. In that case while the bequest was to the pastor of a church there was, as said in the opinion, “nothing in the will to indicate that the bequest is or ever was intended to be in trust for any religious or charitable use; nor is there, dehors that instrument, a scintilla of evidence of any such trust,” and it was shown that the legatee was not present at the making of the will, nor had any communication with the testator relative to the bequest or testator’s wishes in regard to it, thus negativing the existence of any secret trust. What was decided in that case is that in the absence of any evidence in or dehors the instrument, the law will not infer a trust for religious use merely from the professional character of an individual legatee, though it might if the legatee were an artificial body having but one character and that religious or charitable, citing 1 Jarman on Wills, 193, “a gift will not be deemed charitable merely from the nature of the professional character of the devisee.” In the present case as already said the bequest was not only to the appellant or his successor as pastor of the church but express direction was given that it should be applied to a specific religious use. That brought it clearly within the prohibition of the statute. ,

Decree affirmed.


author: Me. Chief Justice Mitchell,

text:
    Sieger v. Sieger, Appellant.

      Tenants in common—Account render—Parties—Set-off—Statute of limitations.

    Separate actions of assumpsit were brought by heirs of a tenant in common against the other tenants in common for their share of the profits of the estate in common received by the defendants since the death of their co-tenant. By agreement the actions were consolidated into one, and changed in form to account render. The parties also agreed to a reference but there was nothing in the agreement of reference to indicate any purpose either to enlarge or to waive the rights of either party as they existed at the time, nor to change in any way the cause of action at issue between them. At the trial the defendants offered to prove that the decedent had received in his lifetime more than his share of the profits for which he had failed to account, and -was thereby indebted to the defendants. The offer was rejected on the ground that the proposed set-off was not in the same right, inasmuch as it was primarily against the decedent’s executors. Held, not to be error.
    In the above case it appeared that plaintiff’s decedent died in April, 1891 ; plaintiffs commenced their actions in assumpsit in December, 1896. The agreement of consolidation and change of form was made in July, 1897, and the plea of the statute of limitations was filed in June, 1898, more than seven years after the last of the moneys charged to have been unlawfully retained, could have been received by decedent. Held, that as the statute of limitations runs against a set-off until it is pleaded, the set-off was barred.

      Tenants in common—Account render—Interest.

    In an action of account render by one tenant in common against his co-tenants, the defendants cannot complain, where the court makes a reasonable allowance of time for settlement, and charges interest only from the time when the money should have been paid over, and not from the date when it was received.

      Argued Feb. 1, 1904.
    Appeal, No. 271, Jan. T., 1903, by defendants, from judgment of C. P. Lehigh Co., Jan. T., 1897, No. 62, on case tried by the court without a jury in suit of Mary C. Sieger, Administratrix of Charles S. Sieger, Deceased, et al. v. Amandus Sieger et al.
    Before Mitchell,_C. J., Fell, Beown, Mesteezat and Pottee, JJ.
    Affirmed.
    Assumpsit subsequently changed to account render for moneys had and received, by the following agreement:
    Now, July 5,1897, it is hereby agreed by the parties in above cases as follows:
    1. That the rules of reference heretofore entered be stricken off.
    2. That said two cases be consolidated into one action as of No. 62 January term, 1897, in which the above plaintiffs shall be plaintiffs and Amandus Sieger and Lewis Sieger defendants.
    3. That the name of Caroline Sieger, surviving administrator of John Sieger, deceased, shall be added as plaintiff.
    4. That the form of action be changed from assumpsit to an action of account render.
    5. That the plaintiffs shall file a suitable statement or declaration in account render to which the defendants shall file such plea or pleas as are proper and appropriate in actions of account render.
    6. After the case is thus at issue, James L. Marsteller, Calvin E. Arner and Leo Wise, Esqs., shall be appointed referees to hear testimony, decide all questions of law and fact arising before them, state an account between the respective parties plaintiffs and defendants and between each of them respectively, and to make report thereof as provided by the several acts of assembly in such case made and provided, and that such reference be made a rule of court, reserving the right to either and all parties to this action to file exceptions to the action, award, and report of said referees, or to take an appeal therefrom to the court of common pleas, or both, and thereafter to the superior court or supreme court as may be deemed expedient or proper. The said reference and appointment of referees to have the same effect in all respects as if a rule - of reference had been duly entered and said referees chosen under such rule of reference.
    The further facts sufficiently appear in the opinion of the Supreme Court.

      Errors assigned were (1-3) in refusing offers of set-off referred to in the opinion of the Supreme Court; (4) in entering judgment for defendants.

      Thomas F. Biefenderfer, and John Rupp, for appellants,
    cited as to the statute of limitations : Guldin v. Lorah, 141 Pa. 109 ; McKelvy’s App., 72 Pa. 409 ; Hamilton v. Hamilton, 18 Pa. 20.
    Cited as to the question of interest: Kelly v. Shay, 206 Pa. 215; Brenner v. Carter, 203 Pa. 75; Gyger’s App., 62 Pa. 73.

      Edward Harvey, with him Edwin H. Stine and A. Gr. Dewalt, for appellees.
    April 18, 1904:
   Opinion by

Me. Chief Justice Mitchell,

Plaintiffs as heirs of John Sieger brought separate suits in assumpsit against Amandus Sieger and Lewis A. Sieger, who had been tenants in common with J ohn, for their share of the profits of the estate in common, received by Amandus and Lewis since the death of J ohn. By agreement the two actions were consolidated into one and changed in form to account render. At the trial the defendants offered to prove that John had received in his lifetime more than his share of the profits for which he had failed to account and was thereby indebted to the defendants. Objection by plaintiffs was sustained and the evidence excluded on the grounds of the statute of limitations, and that the proposed set-off was not in the same right. It is practically conceded by appellants that this ruling would be correct in an ordinary action. Plaintiffs were claiming in their own right as tenants in common for their purparts of the profits since the death of their ancestor, while the set-off, independent of the question of the statute of limitations, was at least primarily against the ancestor’s executors.

But appellants claim that by the agreement of consolidation and change of form of the actions all these matters were intended to be brought together and opened for adjudication in the consolidated suit. This is the real question in the case.

The original actions of assumpsit were based on claims by the plaintiffs in their own right since the death of their ancestor, as tenants in common with the defendants. Assumpsit was an inappropriate form of action and the agreement changed it to account render. The name of Caroline Sieger, surviving administratrix of John Sieger was added as a plaintiff for what reason does not appear, unless as suggested in the argument, because she as widow was entitled to a dower interest in the profits of the joint estate. The agreement provided “ that the plaintiffs shall file a suitable statement or declaration in account render to which the defendants shall file such plea or pleas as are proper and appropriate in actions of account render.” This contemplates the existing controversy but makes no change in the cause of action. The agreement is not only one of amendment of form, but also one of reference for purposes of trial, and was to be made a rule of court. What the referees were v to do was stated clearly but in very general language, “ to hear testimony, decide all questions of law and fact arising before them, state an account between the respective parties, plaintiffs and defendants, and between each of them respectively, and make report thereof as provided by the acts of assembly.” In other words the referees were to take the place of a court and jury and determine the case at issue between the parties. There is no indication of any purpose either to enlarge or to waive the rights of either party as they existed at the time, nor to change in any way the cause of action at issue between them. Such an agreement would have been competent for the parties to make, but it would have been an entire change in the pending controversy between them and would naturally have been expressed specifically in terms which would not have admitted of doubt. It certainly ought not to be inferred from the use of general language whose ordinary meaning imports only a change of method in the determination of an existing controversy.

As, therefore, the claim offered in evidence by defendants was against a different party from the plaintiffs and in a different right, it was properly excluded, whether called technically a set-off or an item of credit in account render.

But in addition, the claim was clearly barred by the statute of limitations. John Sieger died in April, 1891. The plaintiffs commenced their actions in assumpsit in December, 1896. The agreement of consolidation and change of form was made in July, 1897, and the plea under which defendants offered the excluded evidence was filed in June, 1898, more than seven years after the last of the moneys charged to have been unlawfully retained could have been received by John Sieger. The statute of limitations runs against a set-off until it is pleaded: Gilmore v. Reed, 76 Pa. 462; Wisecarver v. Kincaid, 83 Pa. 100. The agreement as already discussed made no' change in the rights of the parties as to the cause of action at issue, but merely in the tribunal and mode of trial. If the case had gone to a jury in the ordinary course without the agreement, the statute of limitations would have been a bar to the claim, and the agreement made no change in this respect.

A second and subordinate question in the case is whether defendants were properly charged with interest on the sum found to be due by them on the accounting. The court did not compute the interest from the date when the moneys were received, but made a reasonable allowance for settlement and charged interest only from the time when the money should have been paid over. This was as favorable to appellants as they were entitled to ask. See McGowan v. Bailey, 179 Pa. 470.

Judgment affirmed.


text:
    Sharpless’s Estate.

      Executors and administrators—Misconduct of executors—Removal of executors.

    An order of the orphans’ court removing two of three executors will be sustained where it appears that the two executors were largely in debt to the estate; that they were insolvent and had disposed of their business in which a considerable part of the estate was invested for a large sum, the disposition of which they had refused to disclose to their coexecutor; and that they had refused to furnish a statement of the condition of the account between the estate and their insolvent firm at the time of the decedent’s death.

      Argued Feb. 1, 1904.
    Appeal, No. 178, Jan. T., 1908, by Henry W. Sharpless and Townsend Sharpless, from decree of O. C. Montgomery Co., Nov. T., 1903, No. 33, removing executors in estate of Anna R. Sharpless, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Petition for removal of executors.
    The opinion of the Supreme Court states the case.

      Error assigned was decree removing the executor.

      Charles 3. Pile, with him Conrad S. Sheive, for appellants.

      Edmund O. Samersly and Townsend, Elliott Townsend, for appellee, were not heard.
    April 18, 1904:
   Per Curiam,

It appeared in the facts as found by the court below that the appellants were very largely in debt to the estate of their mother, of which they were coexecutors; that they were insolvent and had disposed of their business in which a considerable part of their mother’s estate was invested, for a large sum, the disposition of which they had refused to disclose to their coexecutor; and had refused to furnish a statement of the condition of the account between the estate and their insolvent firm at the time of the mother’s death. On these facts the court found that notwithstanding that the manual custody of the unconverted assets and securities of the estate was in the petitioner, and that the appellants under the will of their mother would be entitled to one half of the residuary estate, yet nevertheless a condition of affairs existed as to the estate “ which should not exist if the coexecutors (appellants) would perform their plain duty.” Two facts said the learned judge in his opinion “ are distinctly found, namely, insolvency of these coexecutors and their placing the interests of this estate in jeopardy by refusing or neglecting to put their coexecutor and cotrustee in possession of the information necessary to enable it to protect the estate, and to enforce its rights against them individually and the firm of Sharpless Brothers.

“ The estate is entitled to know what became of the moneys realized in the liquidation of the business of the firm. With the firm on the one side a large debtor of the estate, two of the executors being the members of that firm, and refusing to account, it is difficult to see how the Fidelity Company as one of the executors can act alone without the joinder of the other executors in compelling such accounting. If the insolvency of these executors had occurred before the death of their mother, and she had full knowledge thereof, that fact of itself might not be sufficient to dismiss them from their office. But where it is incumbent upon executors to protect the interests of their estate and in proper management of it to take steps necessary to preserve it, or save it from loss, or where the knowledge concerning the interests of the estate is known to some of the executors and not to . the others and they persistently refuse to furnish the information necessary for the proper protection of the estate, they are, to say the least, guilty of mismanagement.”

The necessity of litigation to compel an accounting as to the proceeds of the sale of the business of the firm, and the difficulties of such litigation while the appellants continued in the position of executors were further set forth by the court below.

In the most moderate view of the whole case it clearly appeared that the personal interests of the appellants were antagonistic to their duties as executors; that their conduct in the latter relation was obstinate and self-willed and dictated more by their personal interests than by those of the estate; and that their coexecutor was impeded in the proper management of its part of the administration to such an extent as to jeopardize the estate itself. It was a clear case for removal in the discretion of the court, and the discretion was carefully and properly exercised.

Decree affirmed at appellant’s costs.


author: Mb. Justice Thompson,

text:
    Lyons v. Union Traction Company, Appellant.

      Negligence—Street railways—Driving in front of car.

    Where a person deliberately and suddenly drives in front of a street car approaching him moving at a moderate rate of speed and distant from him about fifty feet, and is injured in the resulting collision, he is guilty of contributory negligence, and cannot recover from the street railway company.
    Where the driver of a carriage upon reaching a double track street sees cars approaching from both directions, drives across the far track, proceeds along it a short distance ahead of that car, and then suddenly pulls back from the first track so as to meet the other car moving at moderate speed, head on, and too close for it to be stopped, and a collision occurs, the driver cannot recover for injuries sustained, because (1) there was no evidence of the street railway company’s negligence; and (2) he was guilty of contributory negligence.
    Where the sole basis of liability is the omission to perform a certain duty suddenly and unexpectedly arising, there must be not only a consciousness of the facts which raise the duty on the part of the person who is charged with its performance but a reasonable opportunity to perform it.
    Argued March 28, 1904.
    Appeal, No. 294, Jan. T., 1908, by defendant, from judgment of C. P. No. 3, Phila. Co., March T., 1901, No. 441, on verdict for plaintiff in case of John Lyons v. Union Traction Company.
    Before Mitchell, C. J., Fell, Brown, Mbstrezat and Thompson, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Me Michael, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $1,800. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Thomas Learning, with him Dallas Sanders, for appellant.
    There was no sufficient proof of negligence on the defendant’s part: Brown v. French, 104 Pa. 604; Sekerak v. Jutte, 153 Pa. 117; Floyd v. Philadelphia & Reading R. R. Co., 162 Pa. 29; Donahue v. Kelly, 181 Pa. 93 ; Phillips v. People’s Pass. Ry. Co., 190 Pa. 222; Ackerman v. Union Traction Co., 205 Pa. 477; Thomas v. Citizens’ Pass. Ry. Co., 132 Pa. 504; Carson v. Federal St., etc., Ry. Co., 147 Pa. 219; Ehrisman v. East Harrisburg City Pass. Ry. Co., 150 Pa. 180; Wheelahan v. Phila. Traction Co., 150 Pa. 187; Winter v. Federal St., etc., Ry. Co., 153 Pa. 26; Gilmore v. Federal St., etc., Ry. Co., 153 Pa. 31; Downey v. Pitts., etc., Traction Co., 161 Pa. 131; Omslaer v. Pitts., etc., Traction Co., 168 Pa. 519; Callahan v. Phila. Traction Co., 184 Pa. 425; Smith v. Electric Traction Co., 187 Pa. 110; Darwood v. Union Traction Co., 189 Pa. 592; Kern v. Second Ave. Traction Co., 194 Pa. 75 ; Boehmer v. Pitts., etc., Traction Co., 194 Pa. 313; Bornscheuer v. Consolidated Traction Co., 198 Pa. 332; Burke v. Union Traction Co., 198 Pa. 497; Tyson v. Union Traction Co., 199 Pa. 264; Harman v. Penna. Traction Co., 200 Pa. 311; Hamilton v. Consolidated Traction Co., 201 Pa. 351; Pieper v. Union Traction Co., 20 Pa. 100; Keenan v. Union Traction Co., 202 Pa. 107; Moser v. Union Traction Co., 205 Pa. 481.

      Morton Z. Paul, with him Crawford $ Loughlin, for appellee,
    cited: Lenkner v. Citizens’ Traction Co., 179 Pa. 486; Thatcher v. Central Traction Co., 166 Pa. 66.
    April 18, 1904:
   Opinion by

Mb. Justice Thompson,

If from the facts in this case the logical deduction was clear and without doubt that the appellee was guilty of negligence which contributed to the accident causing the injury to him, the question of his negligence became one of law and the appellant was entitled to binding instructions in its favor. The evidence shows that appellee came down Rising Sun lane to Germantown avenue upon which appellant had two tracks, one for its cars moving southward and one for those moving northward. Upon its western track the cars run in a southerly direction and upon its eastern one they run in a northerly one. Rising Sun lane crosses Germantown avenue nearly at right angles and above it at a distance of about 100 feet is Ontario street. The tracks in question occupy the center of the avenue and upon either side there is a space or roadway for vehicles and travel. The accident in this case occurred upon Germantown avenue just north of Rising Sun lane and between it and Ontario street and was caused by a sudden attempt of appellee to cross with his wagon in front of an approaching car of appellant resulting in bis colliding with it, being thrown out and injured.

Appellee came down Rising Sun lane and when he reached the west side of Germantown avenue one of appellant’s cars was coming from the north and one from the south. Instead of taking the roadway on the west side of the tracks he crossed over to the eastern one and just in front of the car moving northward. Hearing the sounding of the gong of that car and seeing a car approaching him from the north distant from thirty-five to fifty feet, he suddenly attempted to cross the western track and as soon as he began his attempt the motorman reversed his power and used every effort to stop his car, but the distance intervening between the car and the wagon was so short, that he was not successful and the accident became inevitable. Appellee’s account of it is that he crossed to the eastern track, heard the gong of the car coming north, that he saw the car coming south, and that he took it for granted that he had plenty of time to cross the track. Pie stated that the car was five or six houses distant. The reason he gave for making this attempt thus to cross under the circumstances was that there was a wagon on the roadway east of the track and one coming down on the north track. He was unable to say what speed the car moving south approached him. Upon cross examination he said he undertook to turn out on the other side to get out of the way of the car coming up and the one coming down and that he turned in front of the one coming down. Appellee’s companion who was with him in the carriage at the time of the accident testified that the gong of the car going north was being sounded for them to get off the track. That appellee immediately turned his horses across to the left-hand side of the street crossing the down track and after his horses had cleared there was a crash and he was thrown out. Appellant called as witnesses a number of passengers who were upon the car moving south and who saw the accident. One testified that he saw appellee deliberately turn in front of the car and when he did so he was about fifty feet from it. Another that she saw the carriage in front of the car and that the next instant it started across in front of it. Another that he saw the wagon cross over on the north track and that the car going south was about forty feet away when appellee turned in on their track. That he turned, too quickly right across for the motorman to stop the car. Another that the car was moving at a moderate rate of speed and that he deliberately crossed in front of the car. Appellant also called as a witness a passenger who was on the platform of the north bound car and therefore must have seen clearly what occurred; he testified that the south bound car was thirty-five or forty feet from appellee when he turned into the track in front of it. The conductor of the south bound car and the motormen of both cars substantially testify to these facts. There can be but the one logical deduction from these facts beyond doubt or question that appellee deliberately and suddenly drove in front of the car approaching him moving at a moderate rate of speed and distant from him about fifty feet and was therefore guilty of contributory negligence. It would be difficult to find a case in which the facts more clearly establish such a conclusion; it is not one in which there is any doubt as to the facts or any question as to the inference. It is hardly necessary to fortify this conclusion by a citation of authorities, but it might not be inapt however to refer to Tyson v. Union Traction Company, 199 Pa. 264, in which the trial judge gave binding instructions for defendant. In that case Mr. Justice Potter, says: “He (the plaintiff) was upon the east side of the street intending to go north. He looked up and saw a car approaching from the north, coming on the south bound track which was the one farthest from him. He testifies that he thought that the car was far enough away to permit him to drive across both tracks, before it reached him. He therefore started his team to go directly across, and when his front wheels were on the southbound track the wagon and car collided causing the injury complained of. There was nothing to put the motorman* on notice of any impending collision, until the horses had actually stepped upon the track upon which the car was approaching.”

In Moser v. Union Traction Company, 205 Pa. 481, the same justice says : “ But he probably failed to take due note of the fact that it (the car) was steadily nearing at a rapid gait the point at which he wanted to cross the track. ... It was his plain duty to look for it, and observe its position before driving upon the track in front of it. For his disregard of this duty the trial court held that he could not recover in this action.”

It is unnecessary to discuss tlie doctrine 'that contributory negligence is not applicable to one who while in peril makes a mistake in order to extricate himself from such peril, because in this case the appellee had put himself in the position in which he was, was not in any peril and was acting with deliberation.

While the evidence establishes that the appellee was guilty of contributory negligence it also shows no negligence on the part of the appellant. It failed in no respect in regard to its duty. It did nothing that it ought not to have done and did not fail to do what it should have done. Its car was upon the track where it had a right to be and was not moving at an unusual rate of speed. Its conductor was in his place and its motorman acted promptly and reversing his power, quickly stopped his 6ar. In Phillips v. People’s Passenger Railway Company, 190 Pa. 222, Mr. Justice Fell says: “Where the sole basis of liability is the omission to perform a certain duty suddenly and unexpectedly arising, there must be not only a consciousness of the facts which raise the duty on the part of the person who is charged with its performance but a reasonable opportunity to perform it.”

The assignment of error is, sustained and the judgment is reversed.


author: Mb. Chief Justice Mitchell,

text:
    Powel’s Estate.

      Practice, Supreme Court—Mandamus to common pleas—Dismissal of auditor.

    The Supreme Court will not entertain an original petition for a mandamus to a court of common pleas to vacate an order made by it discharging a rule to show cause why an auditor should not be dismissed, and to order a trial in open court of petitioner’s complaint.
    There is no mandanaus to a court what to decide. If a court is evading its duty by refusing or neglecting to proceed, the Supreme Court may command it to hear and determine the case, but what the decision shall be cannot be commanded beforehand, or reviewed afterward by a mandamus.
    If an auditor is acting wrongly, whether by intention or mere error of judgment, the regular and proper remedy is by exception to his report on which the court can act in due and regular course. A motion to discharge the auditor for illegal conduct is exceptional, and is addressed to the discretion of the court in its inherent power of control over all its officers and their proceedings.
    In Pennsylvania the right o'f a jury trial on collateral issues raised before an auditor in the distribution of a fund in court depends entirely on statute and is allowed only in certain specified cases.
    Motion for mandamus. Motion Docket, S. C. January-Term, 1904.

      J. W. M. Newlin, for petition.
    April 18, 1904:
   Opinion by

Mb. Chief Justice Mitchell,

This is an original petition filed in this court for a mandamus to the court of common pleas No. 3, of Philadelphia county, to vacate an order made by it discharging a rule to show cause why an auditor should not be dismissed, and to order a trial in open court of petitioner’s complaint.

This is a branch of a long protracted, expensive and acrimonious litigation, the essential history of which will be found in Re Powel’s Estate, 163 Pa. 349, and Powel’s Estate, decided at the present term, 208 Pa. 505. Its present aspect is that a fund being in court upon the fourth account of the assignee of an insolvent estate, the court appointed an auditor to he'ar the claims and report to the court a scheme of distribution. Disputes having arisen, the petitioner claiming to be a creditor, presented to the court below charges of misconduct against the auditor asking for his discharge and demanding a trial in open court, whether by jury or otherwise does not clearly appear. The court below having issued a rule to show cause why the prayer of the petition should not be granted, the auditor and the assignee filed answers and on the call of the case in its regular place on the list, the court discharged the rule. From this action we have now this attempt to get a review by mandamus.

It would be sufficient to say that the application is without precedent and wholly irregular. There is no mandamus to a court what to decide. If a court is evading its duty by refusing or neglecting to proceed, this court may command it to hear and determine the case, but what the decision shall be cannot be commanded beforehand or reviewed afterwards by mandamus. If an auditor is acting wrongly, whether by intention or mere error of judgment, the regular and proper remedy is by exception to his report on which the court can act in due and regular course. A motion to discharge the auditor for illegal conduct is exceptional, and is addressed to the discretion of the court in its inherent power of control over all its officers and their proceedings. Such motion is to be considered and determined in such manner as the court may deem best. It is not for a disappointed litigant by assertions of misconduct to raise what he chooses to call issues of fact and claim some form of trial that he wants. The proceeding is in rem on the distribution of a fund in court, and the court proceeds summarily under forms analogous to proceedings in equity. There is no right to a jury trial even in a common-law suit, except on the main issue joined between the parties. If a jury could be demanded on every minor and collateral issue which the parties might try to raise, the proceedings would become interminable. In Pennsylvania the right to a jury trial on collateral issues raised before an auditor in the distribution of a fund in court, depends entirely on statute, and is allowed only in certain specified cases, of which the present is not one.

The auditor filed a sworn answer denying all the charges made in the petition. To a court acquainted with the high personal and professional character of the auditor such denial was not necessary. But the court below took up the matter in its due and orderly course, and on the call of the case in its regular place on the list, the petitioner’s counsel refused to proceed because his totally unwarranted demand for a particular mode of trial of what he called the issues, was refused. The court thereupon discharged the rule. If the petitioner lost any opportunity in its case by that action, it was its own fault in refusing to assert it in the only legal and permissible way.

The court subsequently heard the case on the merits of petitioner’s complaint, on exceptions to the auditor’s report, and decided that the auditor was right. On appeal this court has at the present term given the appellant a very full and patient hearing and unanimously affirmed the decree of the court below : In re Powel’s Est., 208 Pa. 505.

Petition dismissed.


author: Mb.. Justice Brown,

text:
    Smith, Appellant, v. Schwarz.

      Decedent’s estates—Sale under Price act—Contingent remainder—Minors— Notice—Guardian—Loss of records—Ejectment.

    Where thirty years have expired from a sale of land under the Price act, and it appears that the petition for the order of sale, the report of the examiner to whom it was referred, and the decree of the court, have been lost, and there is nothing to show that notice had not been given to a guardian of certain minors owning contingent interests, it will be presumed that the court having jurisdiction over the subject-matter had- complied with all jurisdictional requirements when the order of sale was made, and that notice had been properly given to a guardian of the minors.
    Omnia praesumuntur rite esse acta, donee probetur in contrarium.
    Argued Jan. 14, 1904.
    Appeal, No. 182, Jan. T., 1903, by plaintiff, from judgment of C. P. No. 4, Pbila. Co., March T., 1900, No. 407, for defendant on special verdict in case of Marie T. Smith et al. v. Charles T. Schwarz.
    Before Mitchell, C. J., Dean, Fell, Bbown, Mesteezat, Pottee and Thompson, JJ.
    Affirmed.
    Ejectment for an interest in land, 3121 North Broad street, in the city of Philadelphia. Before Audenbied, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in entering judgment for defendant on special verdict.

      L. L. Smith, with him J. H. Brinton, for appellants.
    The fundamental principle upon which our judicial system rests is that no man shall be deprived of his property without due process of law, which imperatively demands the right to be heard : McKee v. McKee, 14 Pa. 231; Smith v. Wildman, 178 Pa. 245.
    No lapse of time will raise a presumption of jurisdiction as to parties: Swain v. Fidelity Ins., etc., Co., 54 Pa. 455.

      John Q. Johnson, with him Joseph A. Slattery and Preston K. Erdman, for appellee.
    The decree of the orphans’ court is conclusive and cannot be attacked collaterally: Brown v. Wood, 17 Mass. 68; Delaney v. Gault, 30 Pa. 63; Hering v. Chambers, 103 Pa. 172; Burton’s App., 57 Pa. 213.

      May 2, 1904:
   Opinion by

Mb.. Justice Brown,

The lot of ground in controversy belonged to Patrick Mealy, who died in 1855. It formed a part of his residuary estate, which he gave and devised to James M. Smith in trust for his daughter, Mary Wilkinson, for life, and, upon her death, his direction was that the estate so devised should “ then ” be held “ in trust and to and for the only proper use and behoof of all and every the child and children of my said daughter that shall be living at the time of her death and the lawful issue of any of them who may then be deceased having left such issue, their several and respective heirs and assigns forever as tenants in common, such issue of any deceased child or children of her my said daughter taking however and only receiving such part or' share thereof as his, her or their deceased parent or parents would have had and taken had she or they been then living.”

The testator’s daughter died in 1886, leaving to survive her two sons, William M. and James Wilkinson, and four children of a deceased daughter, Anna M. Smith, who died March 2, 1880. In 1874, under proceedings instituted in the orphans’ court of Philadelphia county, a large plot of land, of which the present lot formed a part, belonging to the estate of Mealy, was sold by Ella L. Wilkinson, the substituted trustee under his will, and the contention of the appellants is that the sale did not pass their contingent interest, because no notice of the application for the order of sale had been given to any one as their guardian. At that time they were all minors, the eldest, Marie T. Smith, being but twelve years of age.

The petition for the order of sale, the report of the examiner to whom it was referred and the decree of the court have been lost, and there is nothing before us to show that notice had not been given to a guardian of the appellants. There is an admission that they themselves had no knowledge of the proceedings for the sale of the real estate, as of course they eould not legally have had in their minority; but the admission does not include any guardian they may have had. In the absence óf the papers, which, on their face, would show just what notice, if any, had been given, and without any affirmative proof that the requirements of the act of 1858 had not been complied with, the appellee asks us to say that the presumption of the regularity of the proceedings in the court below, and of full compliance by it with the statute, ought to protect his title.

That the proceedings in the orphans’ court for the sale of the real estate were conducted under the Price act is conceded. The court had jurisdiction in the premises, expressty conferred by that act, but compliance with certain jurisdictional requirements was essential before the sale could be ordered. Among these was notice to all parties in interest, and if, with all the records before us, it affirmatively appeared that notice had not been given to a guardian of these appellants, if they had such interests under the will of their great-grandfather as required notice to them before an order of sale could affect them, we should have to hold that their undivided interests in the property did not pass to the purchaser ; for the order of sale would be void as to them. Important parts of the record, however, are missing. As just stated, the petition for the order of sale, the report of the examiner to whom it was referred and the decree of the court made thereon have been lost. From them it would appear just who had been notified; but, in their absence, we cannot, and will not, after this lapse of nearly thirty years, assume that the court’s decree was improvidently made, or that, having assumed jurisdiction of a matter coming within the jurisdiction expressly given it by the act of 1853, it had disregarded jurisdictional requirements when the order of sale was made. The presumption is otherwise, and, upon the rule, omnia prsesumuntur rite esse acta, donee probetur in contrarium, this judgment must be affirmed.

Judgment affirmed.


author: Mb,. Chief Justice Mitchell,

text:
    Price v. Pennsylvania Railroad Company, Appellant.

      Railroads—Branches—Location—Discretion of directors—Review by courts.

    The courts have no power to review the discretion of the directors of a railroad company exercised in good faith in locating a branch railroad.
    Argued Feb. 10, 1904.
    Appeal, No. 251, Jan. T., 1903, by defendant, from decree of C. P. Chester Co., No. 415, in equity, awarding a preliminary injunction in case of Joseph Price y, Pennsylvania Railroad Company.
    Before Mitchell, C. J., Dean, Fell, Mesteezat and Thompson, JJ.
    Reversed.
    Bill in equity for an injunction.
    Hemphill, P. J., found the facts to be as follows :
    On March 18, 1903, at a meeting of the board of directors of defendant company, the following resolution was adopted:
    “ Resolved, that the president and board of directors of this company deem it advantageous and suited to promote the convenience of the inhabitants of Chester county and the interests of this company, that a low-grade branch line be constructed from a point on the main line of its railroad at or near Paoli, in the county of Chester, and running in a westerly direction through the said county to a proposed connection with the said main line at or near Thorndale, in the said county, a distance of about fifteen miles, more or less, and that the location of said branch, as represented on the plan this day submitted to the board, marked ‘ No. 8331—new freight line Paoli to Thorndale, Philadelphia Div., P. R. R.,’ is hereby approved, subject to such modifications as the president may deem advantageous, and that the proper officers are hereby authorized to acquire by purchase or condemnation the necessary right of way, and to construct the whole or any part of said branch at such time or times as in the judgment of the president may be for the best interests of this company.”
    In compliance with this resolution, the said company has laid out and commenced the construction of a new line of railway between the points named, which, in substance, is thus described by its assistant engineer of construction in charge of the work:
    The new line branches away from the main line at or near Paoli Station, and runs practically parallel with the present tracks and on the north side to Whitford, where it crosses the present tracks at an elevation of about twenty-five feet above, to the south side, a distance of about eight miles. The distance between the new and main lines, on this stretch, varies from nothing to two hundred feet. After crossing at Whitford, the new line continues south of the main line until Thorndale is reached, when they again unite. The distance between the lines, on this stretch, varies from nothing to two thousand feet at Downingtown, where the new line has an elevation above the surface of the ground of one hundred and twenty-five feet and above the tracks of the main line of about sixty-five feet. At Parkesburg, west of Thorndale, the new line again leaves the main line and runs west to Marysville, a total distance approximately of one hundred miles. The width of the roadway is thirty-two feet and is intended to carry two tracks. Through the plaintiff’s property the base of the line at the widest point is two hundred and ten feet and its elevation above the surface of the ground is fifty feet.
    It is to be a low grade road, used exclusively for freight, and without stations.
    The road is thus described by the board of directors of the defendant company in their fifty-sixth annual report, made to the stockholders on March 10, 1903:
    “ Sixth.—The building, in connection with the four-tracking of the Northern Central Railway, between the new Fairview yard and York Haven, of a new double-track, low-grade railroad, about ninety-five miles in length from the latter point, via Columbia to Philadelphia. This line, will cross the Susquehanna River by a stone-arched bridge near Shock’s, will utilize five miles óf your Columbia and Port Deposit Railroad, from Columbia to Creswell, where the new line leaves the Susquehanna to enter the valley of the Pequea, will run thence to j'our main line at Parkesburg, which it will follow from Parkesburg to Thorndale, and parallel it from Thorndale to Paoli, while the main line between Paoli and Philadelphia will be six-tracked.”
    The court awarded a preliminary injunction.

      Error assigned was the decree of the court.

      John Gr. Johnson, with him John J. Pinkerton, for appellant.
    We submit that the sole prerequisite condition to the construction is the determination by the president and directors of the railroad company proposing to construct, that they deem such construction “ advantageous and suited to promote the convenience of the inhabitants ” (of the county through which the road will run) “ and the interests of said company: ” Rudolph v. Pennsylvania Schuylkill Valley R. R. Co., 166 Pa. 430; Windsor Glass Co. v. Carnegie Co., 204 Pa. 459.
    This court has never sustained any interference with the exercise of the discretion of the board of directors authorized to locate and construct a railroad, because of the opinion of any one that the location could be dispensed with or that a better one could be adopted: Getz’s App., 10 W. N. C. 453 ; McAboy’s App., 107 Pa. 548; Volmer’s App., 115 Pa. 166; Parke’s Appeal, 64 Pa. 137; New York & Erie R. R. Co. v. Young, 33 Pa. 175; Anspach v. Mahanoy & Broad Mountain R. R. Co., 5 Phila. 491.

      Edward A. Magill, of Alexander Magill, with him Thomas W. Pierce for appellee.
    Branching is not an incidental power: Com. v. Erie & Northeast R. R. Co., 27 Pa. 351; P. W. & B. R. R. Co v. P. & R. R. R. Co., 1 Pa. Dist. Rep. 73; Penna. R. R. Co.’s App. 115 Pa. 514; Pittsburg v. Penna. R. R. Co., 48 Pa. 355; Black v. P. & R. R. R. Co., 58 Pa. 249; French v. P. & R. R. R. Co., 13 Phila. 189; Getz’s App., 10 W. N. C. 453.
    While the delegation of the right of eminent domain rests with the legislature, and while the degree of the public necessity for the exercise of that light is for their ascertainment, yet the courts of this and every other state uniformly hold that the question whether a particular use is public or not is ultimately and necessarily a question for the courts, and this because of the fundamental law of the land that private property can be taken only for a public use and the meaning of a public use involving the interpretation of constitutional provisions is exclusively within the province of the judiciary: Edgewood v. R. R. Co.’s App., 79 Pa. 257; McCandless’s App., 70 Pa. 210; Pittsburg v. Scott, 1 Pa. 309; Smedley v. Erwin, 51 Pa. 445.
    Whenever the extent of the right of eminent domain is not specifically defined and limited by law, the question as to the necessary and proper exercise of that right by the corporation invested therewith is one which must ultimately be determined by the courts, and not by the corporation itself: Penna. R. R. Co.’s App., 93 Pa. 150; Pittsburg Junction R. R. Co.’s App., 122 Pa. 511; Penna. R. R. Co.’s App., 128 Pa. 509.

      May 2, 1904:
   Opinion by

Mb,. Chief Justice Mitchell,

By its act of incorporation the appellant company is authorized “ to make such lateral'railroads or branches leading from the main line of their said railroad to such convenient place or points in either of the counties info or through which the said main line of .their road may pass, as the president and directors may deem advantageous and suited to promote the convenience of the inhabitants thereof and the interests of said company.”

On March 18,1903, the company passed a resolution, “ That the president and board of directors of this company deem it advantageous and suited to promote the convenience of the inhabitants of Chester county and the interests of this company, that a low-grade branch line be constructed from a point on the main line of its railroad at or near Paoli, in the county of Chester, and running in a western direction through the said county to a proposed connection with the said main line at or near Thorndale, in the said county,” etc.

' In September, 1903, the board passed an additional resolution that the improvement in question “ which, in the opinion of the board is necessary for the better securing the safety of persons and property and increasing the facilities and capacity for the transportation of traffic on this company’s railroad, is intended and designed as a means of affording necessary transportation facilities in connection with, and in addition to, the company’s existing line of railroad.”

On a bill filed by a property owner through whose land the proposed extension was to run, the court issued the injunction from which we have this appeal.

The grounds of its action are clearly expressed in the following extract from the opinion of the learned court below:

That it would be ‘ a branch ’ may be conceded, for our courts have held the extension of a main line or the construction of a road from any part of the main line to be a branch, and that it may even be longer than the main line itself. But the act of 1846 does not confer upon the company unlimited branching powers, or authorize it to construct branches wherever or for whatsoever purposes it sees fit, but only ‘ to such convenient place or points in either of the counties into or through which the said main -line of their road may pass, as the president and directors may deem advantageous and suited to promote the convenience of the inhabitants thereof, and the interests of said company.’

“Now, the purpose for which this branching power is conferred, aside from that of benefiting the company, is of a public character, viz., to develop the county int which it is built and ‘ promote the convenience of its inhabitants ’ by giving them better railroad facilities for the transportation of their persons and products.

“ To what ‘ convenient place or points ’ in the county of Chester would the proposed road lead ?

“ The answer must be, to none, for it enters the county from the east on the roadway of the main line and continues thereon until Paoli is reached, where it diverges a short distance to the north, that it may secure a better grade than the main line affords, runs parallel thereto until Whitford is reached, where it crosses the main line and diverges a short distance to the south, and again runs parallel with the main line until Thorndale is reached, where it again enters upon and uses the roadway' of the main line to Parkesburg, where it again diverges and shortly enters the county of Lancaster, leading to no ‘ place or points ’ in the county of Chester, and establishing no stations therein.

“ How can such a line of railroad be said to promote the convenience of the inhabitants of Chester county ? ”

By the opinion it appears that the court differed with the board of directors as to the promotion of the convenience of the inhabitants of the county by the proposed branch road, that it held that the burden of proof was on the defendant to show such convenience, and that no sufficient proof to that effect had been presented.

This view unfortunately overlooks the fact that the decision as to the convenience, etc., is vested by the statute in the board of directors, and not in the court. A difference of opinion or judgment on the facts in this regard is altogether immaterial. The decision of the board is not reviewable by the court, except so far as to see that it is in good faith an exercise of the branching power conferred by the charter. Unless it is clearly ultra vires in that respect, the court has no authority to interfere. The language of the statute is too plain to admit of any other construction, “ to make such lateral railroads or branches .... as the president and directors may deem advantageous and suited to promote the convenience of the inhabitants thereof, and the interests of said company.”

If an inquiry into the merits were permissible, it might well be suggested that although the route, grade, etc., do not appear to be such as to afford any additional conveniences in the way of stations or points of connection for the inhabitants, yet their convenience might be greatly promoted as indicated in the supplementary resolution of September, 1908, by the additional facilities of freight transportation on a “low grade branch” thereby relieving congestion on the main line and opening opportunity for more or better passenger service. But as already said, this is not a matter with which the courts have anything to do. The discretion of the president and directors if exercised in good faith within the limits of the charter rights, is conclusive.

Decree reversed and bill directed to'be dismissed.