author: Mr. Justice Fell,

text:
    Martin, Appellant, v. Vare.

      N egligence—Infant—W agon—Evidence—N onsuit.'
    In an action to recover damages for injuries to a boy nine years old, it appeared that at the time of the accident plaintiff was playing tag at a street corner. He stood on the pavement on the west side of one of the streets looking south and leaning against a trollejr pole that was six or eight inches from the curb. His weight was supported by his left leg, and his right leg was crossed'in front of it so that his right foot was at the edge of the curb. Something hit his leg and he fell on the pavement with his right leg projecting into the street beyond the curb as the defendant’s wagon was passing, and his leg was run over by the right-hand wheel of the wagon. The defendant’s driver was going south, and when a short distance north of the boy he turned from the car track to allow a car to pass and drove slowly between the track and the curb. The accident happened between five and six o’clock in the evening in the latter part of October, when it was growing dark. There was no evidence as to what struck the leg of the boy which caused him to fall. Plaintiff testified that it must have been the hub of the wheel. A witness for plaintiff testified that the front wheel struck the boy, but on cross-examination it appeared that this witness did not see the boy until he was under the wheel. Held, that a nonsuit was properly entered.
    Argued Jan. 19, 1905.
    Appeal, No. 328, Jan. T., 1904, by plaintiff, from order of C. P. No. 4, Phila. Co., Dec. T., 1903, No. 765, refusing to take off nonsuit, in case of Stuart Martin by his father John Martin and the said John Martin in his own right v. Edwin H. Vare and George A. Vare, copartners, trading as Vare Brothers.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Willson, J.
    The facts are stated in the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.
    ■ Error assigned was refusal to take off nonsuit.

      Henry 8. Cattell, with him Harvey Grourley, for appellant.
    The case was for the jury: McCloskey v. Ice Co., 38 W. N. C. 30; Brown v. Schellenberg, 19 Pa. Superior Ct. 286; Streitfeld v. Shoemaker, 185 Pa. 265; Johnson v. Ry. Co., 160 Pa. 647; Harkins v. Traction Co., 173 Pa. 149; Evers v. Traction Co., 176 Pa. 376; Schnur v. Traction Co., 153 Pa. 29; Woeckner v. Erie Electric Motor Co., 176 Pa. 451.

      Francis 8hunk Brown, of Simpson £ Brown, with him Ira J. Williams, for appellee,
    cited: Ehrisman v. Ry. Co., 150 Pa. 180; Grier v. Sampson, 27 Pa. 183; Foote v. American Product Co., 195 Pa. 190; Hestonville Pass. Ry. Co. v. Connell, 88 Pa. 520; Moore v. Penna. R. R. Co., 99 Pa. 301; Kehler v. Schwenk, 144 Pa. 348.
    May 15, 1905 :
   Opinion by

Mr. Justice Fell,

Stuart Martin, one of the plaintiffs, a boy nine and one half years of age, was plajdng tag with a number of boys of his age at Twelfth and Wharton streets, which nre main thoroughfares of the city of Philadelphia. He stood on the pavement on the west side of Twelfth street near the corner of Wharton street looking south, and leaning against a trolley pole that was six or eight inches from the curb. His weight was supported by his left leg and his right leg was crossed in front of it so that his right foot was at the edge of the curb. He fell on the pavement with his right leg projecting into the street beyond the curb-as the defendant’s ash wagon was passing, and his leg was run over by the right hind wheel of the wagon. The defendant’s driver was going south, and when a short distance north of the boy he turned from the car track to allow a car to pass and drove slowly between the track and the curb. The accident happened between five and six o’clock in the evening in the latter part of October, when it was growing dark.

In determining whether a nonsuit was properly entered the first inquiry is whether it appeared from the testimony, either directly or by reasonable inference, that the plaintiff’s fall was caused by the act of the defendant’s driver. The only testimony on the subject was that of the plaintiff and of one of his witnesses, a companion about ten years of age. The plaintiff testified that he was looking at boys who were playing nearby and saw nothing coming on the street before he fell. His examination was then as follows : “ Q. What happened to you ? Do you know what happened ? What was it that happened while you were standing here? Why did you get down? A. I got hit in the leg here. Q. What hit you in the leg ? You said something about your knee there. A. Something hit me right in the'leg. Q. What was it? A. It must have been the hub of the wheel. The Court: Ask him if he saw what hit him, or if he knows what hit him. Q. Something hit you, did it not? A. Yes, sir/ Q. What happened after you were hit ? A. I fell down.” His witness testified in his examination in chief, when directed to tell what he saw : “ Stuart was standing by the pole and the front wheel hit him and the back wheel run right over his leg.” On cross-examination he said that he heard the signal of the motorman to the driver and saw the wagon turn from the track some distance north of the place of the accident. The examination that followed was this: “ Q. You saw the boy under the wheel, did you not? A. Yes, sir. Q. That was the first you saw of the wagon there at that point, was it not? A. Yes, sir. Q. When you first saw him he was under the wheels. Is that right? A. Yes, sir.”

The plaintiff did not see the horses pass him and he knew nothing of the wagon before he fell. He did not know what hit his leg and his statement that “ It must have been the hub of the wheel ” was evidently a mere conjecture. His witness’s statement that “ the front wheel hit him ” is without any weight in view of Ms testimony on cross-examination, from which it appeared that he saw nothing of the accident until the plaintiff was under the hind wheel. The testimony of the plaintiff and his witness established no facts from which the jury would have been warranted in finding that the front wheel struck the plaintiff, it was shown that the wagon was going slowly down the street between the car track and the curb, but how near the curb did not appear, that something struck the plaintiff’s leg and he fell on the pavement as the wagon was passing and the hind wheel ran over his leg, which projected into the street. The only ground for inferring that the front wheel struck the plaintiff was that the wagon was so near the curb that the hind wheel ran over his leg after he fell. This might have happened if the wagon had been a foot or more from the curb. It was not ground for the inference of a fact which the plaintiff alleged as the ground of his action and which he was bound to establish as the first step in his case.

The judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    Riegert v. Thackery, Appellant.

      Negligence—Fall of stone from building—Contractor—Independent contractor—Evidence—Contributory negligence.

    In an action to recover damages for the death of plaintiff’s husband caused by the fall of a window sill from a building in the course of construction, it appeared that the owner of the building, the defendant, had made a contract with a contractor for the erection of the building, and the contractor in turn made a subcontract for the brickwork. One of the workmen on the brickwork negligently pushed the sill so that it fell onto the pavement below, killing the plaintiff’s husband. It appeared that some time prior to the accident the contractor had thrown up the contract, and that the owner, desiring to retain him upon the work, employed him as superintendent at weekly wages. The owner thereafter was constantly at the work, directing its progress and employing men. It also appeared that on two occasions before the accident he had refused the workmen permission to coverv the sidewalk with a shed’. There was evidence that the deceased was standing on the pavement looking at the building when the sill fell. The deceased lived only five or six doors away from the place of the accident. Held, that the question of the owner’s negligence and the deceased’s contributory negligence was for the jury, and that a verdict and judgment for plaintiff should be sustained.

      ■ Negligence—Building operation—Shed to protect pavement—Municipal ordinance.

    In an action for death'caused by the fall of a stone from a building in construction, without a shed to protect the pavement, it is not error to admit in evidence a municipal ordinance requiring sheds to be erected where building operations are going on, if the court charges that if the jury should find that a reasonably prudent person, under the circumstances, would not have erected a shed over the pavement, or given warning of the danger from the erection of the building to those on the pavement, the defendant was not negligent, notwithstanding the ordinance.
    Argued Jan. 23, 1905.
    Appeal No. 324, Jan. T.,' 1904,' by defendant, from judgment of C. P. No. 2, Phila. Co.,'Dec.' T., 1904, No. 208, on verdict'for plaintiff in case of Pauline Riegert, widow of Godfrey A. Riegert, to use of herself and her minor son, William Riegert, v. Clayton C: Thackery, Frank Sweeney and Simon Weil, individually, appellant, and Morris Weil, Simon Weil, Herman Weil and Moses Weil, trading as Morris Weil & Sons.
    Before Mitchell,'C. J., Fell, Brown, Mestrezat and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Babratt, J.
    The facts appear by the opinion of the Supreme Court.
    Verdict and judgment for plaintiff against Simon Weil, defendant, for’$7,500. Defendant appealed.

      Errors assigned among’ others was admission in evidence of the ordinance referred to in the opinion of the Supreme Court* and various instructions.'

      Andrew O. Wylie, with him Hopple BueJcman, for appellant.
    If Frank Sweeney', the employer of' the two men by whose alleged negligence this accident occurred, is liable for this accident, then it must necessarily follow that the defendant^ Simon Weil, is not liable, for there can be but one defendant liable on the doctrine of respondeat superior: Painter v. Pittsburg, 46 Pa. 213; Wray v. Evans, 80 Pa. 102; Wolf v. American Tract Society, 164 N. Y. 30 (58 N. E. Repr. 31); Savitz v. R. R. Co., 199 Pa. 218; Alexander v. Water Co., 201 Pa. 252.
    The plaintiff’s decédent was clearly guilty of contributory negligence in deliberately standing in a place of known danger: Rodgers v. Lees, 140 Pa. 475; Gillespie v. McGowan, 100 Pa. 144.

      The learned court erred in admitting in evidence the ordinance of August 30,1849: Rubin v. Miller, 47 Pitts. L. J. 351; Phila. & Reading R. R. Co. v. Ervin, 89 Pa. 71; Gannon v. Wilson, 18 W. N. C. 7; Koch v. Fox, 71 Appellate Division, 288 (75 N. Y. Supp. 913); Willis v. Armstrong County, 183 Pa. 184; Card v. Columbia Twp., 191 Pa. 254; Ohl v. Bethlehem Twp., 199 Pa. 588; Lawrence v. Ins. Co., L. R. 7 Q. B. Div. 216; Mack v. Wright, 180 Pa. 472.

      John M. Vanderslice, with him P. P. Fever, for appellee,
    cited: Homan v. Stanley, 66 Pa. 464; Allen v. Willard, 57 Pa. 374; Pittsburg v. Grier, 22 Pa. 54; Haverley v. R. R. Co., 135 Pa. 50; Plymouth Twp. v. Graver, 125 Pa. 24; Corbin v. Phila., 195 Pa. 461; Chambers v. Carroll, 199 Pa. 371; Webster v. Coal & Coke Co., 201 Pa. 278.
    May 15, 1905:
   Opinion by

Mr. Justice Brown,

On November 19, 1900, the husband of the appellee, while looking through the door of a building in process of erection on North Third street, in the city of Philadelphia, was struck •by a stone sill that fell upon him and his death followed as a result several hours afterwards. The sill had been placed on the front wall in green mortar at a height of about eighteen feet from the pavement. The men, who were erecting the wall, when about to quit work, covered the top of it with a board, and in doing so one of them pushed the sill off.

On October 2,1900, Weil, the appellant, and the only defendant against whom the plaintiff proceeded after her amendment striking put the names of those who had been sued with him, entered into a contract in writing with Clayton C. Thackery for the erection of the building, and Thackery in turn made a contract with one Sweeney for the brickwork. The answers to requests by the defendant for specific instructions were that if Thackery entered upon the work of constructing the building under his written contract witli Weil, he was an - independent contractor so long as he worked under it, with its terms unchanged, and that i f, while it remained unchanged he entered into the one testified to with Sweeney, and the latter, at the time of the accident, was carrying it putas made, the defendant, notwithstanding any change of the contract relation between himself and Thackery, was not liable for the alleged negligence of the employees of Sweeney. There was evidence, however, ■that about two weeks before the accident the contract with Thackery was no longer in force. He was called by the plaintiff and, as a manifestly unwilling witness, testified that at the time the sill fell the contract had ceased ;■ that he was then the superintendent of the work for the appellant, who paid him $10.00 a week for his services, and was paying.the men and buying the materials. Hartman, who had worked for Thackery, called as a witness by the plaintiff, testified that he was present at an interview between Weil and Thackery some time before the accident, and stated that the former had taken the completion of the building on himself; that the latter had become the superintendent; that he was going to quit, but Weil wanted him to stay and he remained after the work had changed hands, Weil paying him for his services. He further stated that on two different occasions, about a week before the accident, he wanted to cover the sidewalk with a shed,- but Weil and Thackery would not permit him to do so, saying they were his bosses, that he was under them, and that he would have to do what they said. In view of this and other testimony the-jury . were properly instructed that, notwithstanding the contracts between Weil and Thackery, and Thackery and Sweeney,' if they found that the defendant was present on the building from ■day to day, buying materials, paying men, hiring and discharging them, ordering, directing or controlling them on the work, he- would be liable to the plaintiff, if their- findings • as to his negligence and the alleged contributory negligence of the deceased should be against him. ■ • • . .■ ■

In support óf the allegation of negligence: there was'testimony that the sill had been pushed off the. wall by a colored ■workman in trying to cover the top of the brickwork. Wright, a bricklayer, who was helping to cover the wall,.testified that.it was customary, while, working on a public .street and laying a sill in the way this .one was laid, to provide- .some protection from danger along the footway, and_ admitted' that; when the sill was put in the green mortar no precautions had been-taken to prevent its falling. -.In being pushed off it was bound to fall on the pavement, and.at a point where it might strike a.person guilty of no negligence in standing or walking where it fell. ■ In the erection of buildings facing streets, due regard—care under the circumstances—must always be paid by those erecting them to the safety of those who have a right to use the pavements, and whether there was such regard in the present case was a question of fact for the jury. If proper care by the defendant, through his servants, had not been observed, the plaintiff was entitled to a verdict, if her husband had not been negligent in stopping and looking in at the door. This, too, was a question for the jury and ivas submitted under proper instructions. The deceased lived only five or six doors from the place of the accident. He must constantly have passed and repassed the place. That he stood in front of the building inspecting it, could not, as a matter of law, under the circumstances, have been pronounced an act of negligence by the court. But the question for the jury was, as stated by the learned trial judge, Was he negligent in taking that position, with the knowledge that it was possible something might happen to injure him, and were the dangers of such a character and so obvious that a reasonably careful and prudent man would not have stood within one or two feet of the wall of a building in the course of erection, because of the possibility of the happening of what did happen?

The plaintiff offered in evidence an ordinance of the city of Philadelphia, its pnrpose being “to prevent accidents during the construction, repair and alterations of buildings in the city of Philadelphia.” It was admitted under objection; and under our cases its admission was not error: Lederman v. Pennsylvania Railroad Company, 165 Pa. 118; Foote v. American Product Company, 195 Pa. 190; Herron v. City of Pittsburg, 204 Pa. 509; Ubelmann v. American Ice Company, 209 Pa. 398. Proof of the violation of the ordinance was not, in itself, any evidence of the defendant’s negligence, and the distinct instructions given to the jury were that if they should find that a reasonably prudent person, under the circumstances, would not have erected a shed over the pavement, or given warning of the danger from the erection of the building to those on the pavement, the defendant was not negligent, notwithstanding the ordinance.

None of the assignments can be sustained and the judgment is affirmed.


author: Mb. Justice Fell,

text:
    Beckley v. Riegert, Appellant.

      Will—Lije estate—Estate tail—Lying without issue.

    In a will “issue” prima facie means “heirs of the body” and will be eonstrued as a word of limitation, and “dying without issue” standing alone means an indefinite failure of issue. But this construction will always yield to an apparent intent on the face of the will that the words were to have a more restricted meaning and to be applied to descendants of a particular class or at a particular time and not to all the descendants of every generation.
    Dying without issue “living at the time of his decease” means a definite failure of issue.
    A limitation over to take effect on the failure of issue within a given time will not give rise to an estate tail by implication in the prior taker.
    Testator gave and devised a tract of land to his son A during the natural life of A. He then directed as follows: “If my son A shall die without lawful issue, then the above devised messuage or tract of land shall fall back to my two sons, E and G, but if my son A having lawful issue at the time of his death, then I give and devise the above messuage or tract of land to him and his heirs forever.” Held, that the limitation over was after a definite failure of issue, and that A took merely a life estate in the land devised to him.
    Argued. Feb. 16, 1905.
    Appeal, No. 24, Jan. T., 1905, by defendant, from judgment of C. P. Lebanon Co., June T., 1904, No. 255, for plaintiff on ease stated in suit of John Adam Beckley y. L. Raymond Riegert.
    Before Dean, Fell, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Case stated to determine marketability of title to real estate.
    From the case stated it appeared that plaintiff was in possession of a farm in South Lebanon township containing fifty acres devised to him by the will of his father, John Beckley. The material portion of the will is quoted in the opinion of the Supreme Court. Plaintiff entered into an agreement to sell the land to the defendant, but the defendant on examination of the title refused the deed tendered to him.
    The court entered judgment for plaintiff on the case stated. Defendant appealed.

      Error assigned was in entering judgment for plaintiff on case stated.

      P. 8. Keiser and II. C. Shirk, with them Gf. H. Moyer, for appellant.
    Plaintiff took a life estate only: Stoner v. Wunderlich, 198 Pa. 158; Cameron v. Coy, 165 Pa. 290; Tyson’s Est., 191 Pa. 218; Taylor v. Taylor, 63 Pa. 481; Parkhurst v. Harrower, 142 Pa. 432; Jessup v. Smuck, 16 Pa. 327; Bedford’s App., 40 Pa. 18.

      Pugene P. 8iegrist, for appellee.
    Plaintiff took an estate in fee simple: Lawrence v. Lawrence, 105 Pa. 335; Grimes v. Shirk, 169 Pa. 74; Price v. Taylor, 28 Pa. 95; Smith’s App., 23 Pa. 9; Kleppner v. Laverty, 70 Pa. 70; Powell v. Board of Domestic Missions, 49 Pa. 46; Haldeman v. Haldeman, 40 Pa. 29; Hiester v. Yerger, 166 Pa. 445; George v. Morgan, 16 Pa. 95; Paxson v. Lefferts, 3 Rawle, 59; Crockett v. Robinson, 46 N. H. 454; Reimer v. Reimer, 192 Pa. 571; Morrison v. Truby, 145 Pa. 540; Marshall’s App., 5 Pa. 388; Postlethwaite’s App., 68 Pa. 477; Stouch v. Zeigler, 196 Pa. 489; Ray v. Alexander, 146 Pa. 242; Grimes v. Shirk, 169 Pa. 74; Price v. Taylor, 28 Pa.. 95; King v. Frick, 135 Pa. 575; Stevenson v. Fox, 125 Pa. 568; Karker’s Appeal, 60 Pa. 141; Mickley’s Appeal, 92 Pa. 514; Flick v. Oil Co., 188 Pa. 317; Vaughan v. Dickes, 20 Pa. 509; Bright v. Esterly, 199 Pa. 88.
    May 15, 1905:
   Opinion by

Mb. Justice Fell,

The question to be determined is whether the plaintiff took an estate tail, converted to a fee simple by virtue of the Act of April 27, 1855, P. L. 368 or a life estate only, under the following provision of his father’s will: “ T give and devise unto my son Adam my messuage, tenement or tract of land—during the natural life of my son Adam. If my son Adam shall die without lawful issue, then the above devised messuage or tract of land shall fall back to my two sons, Franklin and George, but if my son Adam having lawful issue at the time of his death, then I give and devise the above messuage or tract of land to him and his heirs forever.” In terms the testator gave a life estate to his son Adam Avith remainder to Adam’s issue, if he had issue at the time of his death, and in default thereof to the testator’s sons, Franklin and George. The expressions “ shall die without lawful issue ” and “ having lawful issue at the time of his death ” must be considered together as fixing the time when the other sons would take. That time was when Adam should die without issue at the time of his death. The limitation over was after a definite failure of issue and the particular intent is not defeated by the creation by implication of an estate tail. In a will “ issue ” prima facie means “ heirs of the body ” and will be construed as a word of limitation, and “dying without issue ” standing alone means an indefinite failure of issue. But this construction will always yield to an apparent intent on the face of the will that the words were to have a more restricted meaning and to be applied to descendants of a particular class or at a particular time and not to all the descendants of every generation. Dying without issue “living at the time of his decease ” means a definite failure of issue: 4 Kent’s Com. 274. A limitation over to take effect on the failure of issue within a given time will not give rise to an estate tail by implication in the prior taker. The case is to be classed with the exceptions to the general rule that where there is a limitation over in fee after death without issue, or on failure of issue, or words of similar import, the estate of the first taker is a fee tail: Eichelberger v. Barnitz, 9 Watts, 447; Langley v. Heald, 7 W. & S. 96; and it is governed by Taylor v. Taylor, 63 Pa. 481; Parkhurst v. Harrower, 142 Pa. 432, and Nes v. Ramsay, 155 Pa. 628. The judgment is reversed, and it is directed that judgment be entered for the defendant on the case stated.


text:
    Richards, Appellant, v. Bentz.

      Will—Estate in fee simple—Heirs—Survivorship.

    Where there is a plain devise of a fee simple to take effect immediately in possession, a devise over in case of the death of the first taker means his death in the lifetime of the testator. The first taker is entitled to the benefit of every implication and his estate will not be cut down and limited unless the intention to do so clearly appears.
    When the devise is of a fee absolute in the first instance and the gift is immediate, words of survivorship will be referred to the death of the testator and not to the death generally, whenever.it may happen.
    Testator devised a farm to A “as his full property, which he shall take in possession immediately after my death,” and coupled with it was a bequest of farming and trade implements and other personal property. For these he was to pay $2,000 to his sister E, then came - the following provision: “If the above A or E should die without heirs, so shall that one’s share of inheritance fall back to the other.” Held, that the estate taken by A was absolute and indefeasible, if he survived the testator.
    Argued March. 1, 1905.
    Appeal, No. 40, Jan. T., 1905, by plaintiff, from judgment of C. P. Berks Co., April T., 1908, No. 7, on verdict for defendants in case of Adam .Darius Richards v. William Bentz, Levi D. Kalbach and Henry P. Obold.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Elkin, JJ.
    Affirmed.
    Ejectment for land in Jefferson township. Before ErmenTROUT, P. J.
    From the record it appeared that Jacob Haag devised the land in question to his grandson, Adam H. Potteiger. The material portions of his will are quoted in the opinion of the Supreme Court. Adam’s sister, Eva, died leaving one child, Adam Darius Richards, the plaintiff. The defendants claim under Adam H. Potteiger, who survived testator, but died without ever having had a child.
    The court gave binding instructions for defendants. Plaintiff appealed.

      FJrror assigned was in giving binding instructions for defendant.

      Cyrus G. Derr, with him Benj. F. Dettra, for appellant
    cited: Hill v. Hill, 74 Pa. 173; McGunnigle v. McKee, 77 Pa. 81; Jessup v. Smuck, 16 Pa. 327; Berg v. Anderson, 72 Pa. 87; Eichelberger v. Barnitz, 9 Watts, 447; Clark v. Baker, 3 S. & R. 470; Randfield v. Randfield, 8 H. L. Cas. 225; Smith v. Stewart, 4 De G. & S. 253.

      IIB. Green, of Green Green, and Henry Maltzberger, with them James B. Baker, for appellee,
    cited: Mickley’s App., 92 Pa. 514; Stevenson v. Fox, 125 Pa. 568; Morrison v. Truby, 145 Pa. 540; Biddle’s Est., 28 Pa. 59; Mitchell v. Ry. Co., 165 Pa. 645; Keating v. McAdoo, 180 Pa. 5; Karker's App., 60 Pa. 141; Coles v. Ayres, 156 Pa. 197; Shutt v. Rambo, 57 Pa. 149; Fahrney v. Holsinger, 65 Pa. 388; Flick v. Forest Oil Co., 188 Pa. 317; Caldwell v. Skilton, 13 Pa. 152; Engel’s Est., 180 Pa. 215; Robinson’s Est., 149 Pa. 418; Schoonmaker v. Stockton, 37 Pa. 461; King v. Frick, 135 Pa. 575.
    May 15, 1905:
   Opinion by

Mb. Justice Fell,

The devise of a farm was to the testator’s grandson as his full property, which he shall take in possession immediately after my death,” and coupled with it was a bequest of farming and trade implements and other personal property. For these he ivas to pay $2,000 to his sister Eva and to make other payments to the wife and daughter of the testator. The case turns on the effect of this provision: “ If the above Adam Potteiger or Eva Anna Maria Potteiger should die without heirs, so shall that one’s share of inheritance fall back to the other.” There is nothing in the general scheme of the testator’s disposition of his estate nor in the language found in his will that takes the case out of the rule that where there is a plain devise of a fee simple to take effect immediately in possession, a devise over in case of the death of the first taker means his death in the lifetime of the 'testator. The first taker is entitled to the benefit of every implication and his estate will not be cut down and limited unless the intention to do so clearly appears. When the devise is of a fee absolute in the first instance and the gift is immediate, words of survivorship will be referred to the death of the testator and not to death generally, whenever it may happen: Biddle’s Estate, 28 Pa. 59; Fahrney v. Holsinger, 65 Pa. 388; Mickley’s Appeal, 92 Pa. 514; Mitchell v. Railway Co., 165 Pa. 645; Jackson’s Estate, 179 Pa. 77. That the real and personal estate were made subject to the same condition strengthens the inference of an intent that the estate taken by the grandson was to be absolute and indefeasible if he survived the testator.

The judgment is affirmed.


author: Mb. Justice Elkin,

text:
    Fidelity and Casualty Company, Appellant, v. Harder.

      Evidence—Parol evidence—Written instrument—Bond—Judgment.

    Parol evidence is admissible to alter, vary or contradict a written instrument where such evidence establishes an oral agreement contemporaneous with the execution of the writing, and on the faith of which the instrument was executed.
    Where the court below finds as a fact the existence of the parol contract, and this finding is based upon the evidence of two witnesses as against one to the contrary, the Supreme Court will not reverse the finding in the absence of manifest error.
    A surety company became surety for the treasurer of a corporation to secure the corporation from any loss it might sustain on account of any frauddulent or dishonest acts of the treasurer. Subsequently the treasurer was charged with embezzlement, and the surety company demanded and received from him a bond of indemnity which authorized the surety company to enter judgment on the bond after it had “satisfied itself as to its liability under said bond.” Judgment was subsequently entered upon the bond. After-wards on a rule to open the judgment, the defendant showed by two witnesses as against one to the contrary, that there was a parol contract made prior to the execution of the bond that the bond should not be proceeded upon until the liability of the treasurer to his Corporation had been established by due process of law, and that this agreement was the inducement for the execution of the bond. Held (1), that the pai'ol evidence was admissible; (2) that the intention of the parties was that the surety company should not enter judgment on the bond until it had satisfied itself of the liability of the original bond, and then was not to proceed to collect the same until the liability of the treasurer had been established by due process of law.
    Argued, March 13, 1905.
    Appeal, No. 256, Jan. T., 1904, by plaintiff from order of C. P. Lycoming Co., Sept. T., 1902, No. 327, making absolute rule to open judgment in case of The Fidelity & Casualty Company of New York v. Err H. Harder and Henry J. Shadle.
    Before Dean, Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Rule to open judgment. Before Hart, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was order making absolute rule to open judgment.

      Thomas M. B. Sicks, for appellant.
    The discretion of courts to open judgments is very extensive, but it must rest on a foundation of competent evidence: Woods v. Irwin, 141 Pa. 278.
    To entitle a party to an issue, or to have a judgment opened, some disputed fact to be submitted to the decision of the jury must be shown : Knight’s Appeal, 19 Pa. 493; Moore v. Dunn, 147 Pa. 359; English’s Appeal, 119 Pa. 533; Jenkintown National Bank’s Appeal, 124 Pa. 337; Woods v. Irwin, 141 Pa. 278; Kaier Co. v. O’Brien, 202 Pa. 153.
    While it is probably the law that the testimony of two defendants is sufficient to overcome the conclusive effect of a responsive answer; yet, in order to move a chancellor, upon the ground of fraud, accident or mistake, to reform or cancel a bond or deed, the evidence must be clear, precise and indubitable : Sylvius v. Kosek, 117 Pa. 67; Ahlborn v. Wolff, 118 Pa. 242; Cosgrove v. Cummings, 195 Pa. 497; Boyertown National Bank v. Hartman, 147 Pa. 558; Fulton v. Hood, 34 Pa. 365.
    The case of Gump v. Goodwin, 172 Pa. 276, expressly raises and decides the precise question of law presented at bar.

      C. LaBue Munson, with him Addison Candor, for appellees.
    The parol agreement has been established by the “ clear, precise and indubitable ” testimony of two witnesses, and by corroborating circumstances, and meets the requirements of the well-established rule: Cloud v. Markle, 186 Pa. 614.
    The judgment on the bond in suit cannot be maintained against the denial of the obligors that its condition has been broken, without the verdict of a jury upon that issue : Huckestein’s App., 3 Penny. 55; Mayer v. Watson, 14 Lane. 257; Fidelity & Casualty Co. of N. Y. v. Eickhoff, 63 Minn. 170 (65 N. W. Repr. 351).

      Thomas M. B. Hides, for appellant, in reply.
    The law, as well established in Pennsylvania, and by the best considered precedents in other jurisdictions, is just the contrary to the cited decision of the Supreme Court of Minnesota. It does not in any way contravene public policy, or any other provision of the law, for one party, if he choose, to submit the controversy to the conclusive decision of the other party : Monongahela Nav. Co. v. Fenlon, 4 W. & S. 205; Gowen v. Pierson, 166 Pa. 258; Faunce v. Burke, 16 Pa. 469; North Lebanon R. R. Co. v. McGrann, 33 Pa. 530.
    May 15, 1905:
   Opinion by

Mb. Justice Elkin,

The appellant is a foreign corporation. It furnishes fidelity bonds for persons employed in positions of responsibility and trust. One of the appellees, Harder, being employed as assistant treasurer of the Williamsport Gas Company, was required to furnish a bond. The appellant became his surety on the bond required by the employing company. The material conditions of said bond so far as the present case is concerned required the appellant to “ make good and reimburse to the employer to the extent of the sum of two thousand dollars, and no further, such pecuniary loss, if any, as may be sustained by the employer by reason of any fraudulent or dishonest acts of the employed in connection with the duties of said position, amounting to embezzlement or larceny.”

The gas company alleged that Harder had misappropriated and embezzled moneys belonging to it which came into his hands as assistant treasurer. The appellant sent its agent or representative to look over the accounts of said Harder in connection with his employment in the gas company, and claiming á shortage therein, demanded an indemnifying bond in order to protect itself from losses that might occur to it by reason of the payment of the original bond. Harder thereupon secured Henry J. Shadle as his surety in a bond of. indemnity to the appellant company in the sum of $2,000.

The condition of this bond is as follows: '£ Now the condition of this obligation is such that if the said Err H. Harder and Henry J. Shadle shall at all times hereafter, save, indemnify and keep' harmless the said Fidelity and Casualty Company, its successors and assigns, from or against all losses, payments, actions or demands whatsoever of said Williamsport Gas Company, or by reason of said bond of indemnity to the company arising out of any default, defalcation, misappropriation or other failure of duty of the said Harder under said bond on the part of said Harder as assistant treasurer of said Gas Company, or of any breach by him of any conditions in said bond, then this obligation to be void, otherwise to remain in full force and virtue.”

The latter bond contained a power of attorney to confess judgment thereon. The appellant having secured this indemnity bond, proceeded to make an examination of the accounts of said Harder as assistant treasurer of the gas company, and having satisfied itself, as it is alleged, that there was a shortage in his accounts amounting to embezzlement to the full amount of its obligation in the original bond, on its own motion paid the amount thereof to the gas company. Judgment was then entered on the bond of indemnity against Harder and Shadle and execution issued thereon, whereupon Harder and Shadle presented a petition to the court asking the writ to be stayed, and judgment to be opened in order that they might be let into a defense. The appellees set out in their petition, and contended in the court below, and assert here, that there had been no breach of the conditions of the indemnity bond on which the judgment was entered, nor any breach of the conditions of the original bond and no misappropriation or embezzlement of the funds of the gas company by Harder, and consequently no right in appellant to enforce the collection thereof. One of the material averments in the petition to open the judgment is to the effect that at the time the bond of indemnity to the appellant was executed there was a parol contract made by the appellees and the agent • or representative of the appellant as an inducement to get the appellees to sign the same, that said bond should not be proceeded upon until the liability'- of Harder to the gas company had been established by due process of law. The court permitted testimony to be taken in support of this parol contract, and after hearing the same, directed the execution to be stayed, judgment to be opened, and lien to be preserved, in order that the disputed questions of fact should be determined by a jury. The appellant complains because it is contended that under the express provisions of the bond the right to have the liability of Harder determined by a jury had been waived, and that having satisfied itself of the defalcation, misappropriation and embezzlement of funds, the rights of appellees were concluded thereby. The appellant undertakes to sustain its contention by that provision of the bond of indemnity which says: “ And further if the amount under this bond is not paid upon demand of said Fidelity & Casualty Company, its certain attorneys, successors or assigns, and after said company has satisfied itself as to its liability under said bond, then we do hereby authorize and empower any attorney of any court of record in the state of Pennsylvania or elsewhere to appear for us and confess judgment against us for the penal sum with costs of suit, release of errors, etc.”

It is argued under this provision of the bond the appellant had the right to make this investigation ex parte, without due course of law, and entirely independent of the rights or suggestions of the appellees. It is further contended by the learned counsel for appellant that the appellees have no rights to be considered by the court and no questions of fact to be determined by a jury. We are not convinced of the correctness of this position. It is certainly unsound if the parol contract set up by the appellees be sustained. Parol evidence is admissible to alter, vary or contradict a written instrument where such evidence establishes an oral agreement contemporaneous with the execution of the writing and on the faith of which the instrument was executed: Chalfant v. Williams, 35 Pa. 212; Keough v. Leslie, 92 Pa. 424; Shugart v. Moore, 78 Pa. 469. It has also been held that where at the execution of a writing a stipulation has been entered into, a condition annexed, or a promise made by word of mouth, upon the faith of which the writing has been executed, parol evidence is admissible although it may vary and materially change the terms of the contract: Greenawalt v. Kohne, 85 Pa. 369.

Under the facts of this case it was competent to show by parol evidence that such an understanding or contract was entered into at the time the bond of indemnity was executed as an inducement to the execution of the same, and without which the bond would not have been executed. If the witnesses of the appellees are to be believed then there was such clear, precise and indubitable evidence as would support the parol contract set up. It is true there was a conflict of testimony about this matter, but the court below heard the witnesses on a rule to open the judgment and found as a fact that the parol contract had been established by two witnesses for appellees as against one for appellant. This finding was conclusive unless there was manifest error. We cannot say there was. We must therefore accept this fact as established.

We do not agree with the learned counsel for the appellant in the construction placed upon the bond itself. The provision “ after said company has satisfied itself as to the liability under said bond ” it shall have the right to enter the judgment, is not a condition of the bond bearing upon the liability of the parties. This provision occurs in a subsequent paragraph to that in which the conditions of the bond are set out. The evident purpose thereof was to give appellant the right to enter the bond as soon as it satisfied itself of its liability under the original bond by making an examination of the accounts. In other words, it was a condition precedent to the entry of the judgment and not a condition affecting the purpose Of the bond itself. This was in the interest of the appellant so that it could enter the judgment and preserve its lien against the property of the appellees, but it certainly was not intended that they should be concluded by the entry of the judgment and not be permitted to have the same opened so that they could be let into a defense in the event that they had a just defense to the cause of action. This view of the case is in corroboration of the contention of the appellees, that is to sajy execution was not to be issued on judgment until the liability of Harder as principal, and the appellant as surety, had been established by due process of law on the original bond. In other words, the appellant held the bond containing a power of attorney to confess judgment, but was not to enter judgment thereon until it had satisfied itself of the liability1- on the original bond, and then was not to proceed to collect the same until the liability of Harder had been established by due process of law.

After a full consideration of all the questions involved we can see no error in the disposition of the case by the learned court below.

Order and decree affirmed.


author: Pee Curiam,

text:
    Moore v. Deyo, Appellant.

      Wills—Vested remainders—Sale of remainder—Trusts and trustees— Spendthrift trust—Failure of charitable gift.

    Where a testator creates spendthrift trusts in favor of his children for life with remainder to charities, and the charitable gifts fail by reason of the death of the testator within thirty days from the execution of the will, the children take the remainders under the intestate laws and have such a title as they can sell and convey.
    Argued March 21, 1905.
    Appeal, No. 49, Jan. T., 1905, by-defendant, from order of C. P. No. 4, Phila. Co., Sept. T., 1904, No. 824, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Albert H. Moore v. Jonathan Deyo.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Rule for judgment for want of a sufficient affidavit of defense.
    Willson, P. J., filed the following opinion :
    By the will of the plaintiff’s father, spendthrift’s trusts were created in favor of the testator’s three sons in such a way that, on the death of any one or more of the three, the benefit of the trust estate passed to the survivor or survivors. The trusts were to continue during the life or lives of the beneficiaries. The residue of the estate, after the termination of the trusts, was bequeathed for charitable uses, but in consequence of the testator’s death having occurred less than thirty days after the making of his will, the provisions of his will for the benefit of charities became null and void. He must, therefore, be regarded as having died intestate with reference to such residue. Under these circumstances the plaintiff-entered into a contract with the defendant for the sale of $5,000 of what was claimed to be his share of the residue for the sum of $2,000, undertaking in the instrument of sale that he had a vested interest, and therefore a right to make the sale. This is the substance and legal effect of the contract, though not intended to be a literal expression of it. The purchaser, the defendant in this case, however, declined to carry out the agreement of purchase and sale, on the alleged ground that the plaintiff had no vested estate in said residue, and therefore that the defendant was not bound by his contract of purchase. The matters just stated are a substantial summary of what is contained in the statement and the affidavit of defense. The question which arises is a single one, namely, whether or not the plaintiff, at the time of his contract with the defendant, had, in point of fact, any vested dominion over a portion of the estate as to which his father died intestate, so that the plaintiff could make a valid contract of sale with the defendant, such as he claims the right'to make.
    We are of the opinion that he had, though it may seem somewhat anomalous that one whose entire beneficial interest for life would be that of a cestui que trust in the enjoyment of an income from the property, should have an absolute and vested interest in the corpus of the estate, although he could by no possibility come into full exercise and control over it so long as he lived, yet there does not seem to be any necessary legal incongruity in such a state of facts. Upon the occurring of the intestacy, the residue of the estate, which must be regarded as wholly personal, passed at once to the next of kin of the testator. This seemed to be settled beyond peradventure in Bell’s Estate, 147 Pa. 389, and by many other cases which could be cited. In other words, those who would take the estate in remainder were, by the law determined to be those who would have taken it at once upon the death of the testator if there had been no trust estates created by his will. The three sons of the plaintiff’s father were the next of kin of the testator, and the remainder of his estate, that which was left after the termination of the trusts, passed at once to them upon the death of their father, notwithstanding the entire residue of his estate was covered for the entire period of their lives by the provisions of the spendthrift’s trusts which he had created in their favor. In consequence of this the plaintiff became entitled to one third of this estate in remainder as a vested estate, which he could bequeath by will or part with by assignment, although, of course, no person taking under him could acquire'any right of possession or enjoyment until after his death and the death of his brothers. This seems to us the necessary and logical view of the case to take in view of the undoubted legal doctrine, that intestacy as to any part of a decedent’s estate is to be determined as of the date of the death of the deceased. Judgment, therefore, will be entered in favor of the. plaintiff.

      Error assigned was the order of the court.

      Lewis H. Van JDusen, for appellant.
    The practical result of .holding plaintiff’s interest in remainder to be vested would be to defeat the intention of the testator as expressed in the spendthrift trusts, inasmuch as plaintiff would thus come into a partial enjoyment of the corpus of the estate by virtue of his right and power to assign and sell the same as vested: Johnston’s Est., 185 Pa. 179.
    An interest in remainder is not vested unless there is a present capacity to take and enjoy in the remainderman : Evans’s Lessee v. Davis, 1 Yeates, 332; Manderson v. Lukens, 23 Pa. 31; Sager v. Galloway, 113 Pa. 500; Gerber’s Estate, 196 Pa. 366.

      V. Gilpin Robinson, with him John M. Gardner, for appellee.
    Albert H. Moore had a vested interest in an estate in remainder as to which there was an intestacy: Moore’s Est., 198 Pa. 611; Lancaster v. Flowers, 198 Pa. 614; Snyder’s Est., 180 Pa. 70; Gibson’s App., 108 Pa. 244; Lynch v. Lynch, 132 Pa. 422; Seitzinger’s Est., 170 Pa. 500; Phila. Trust, etc., Co., v. Guillou, 100 Pa. 254; Doane v. Gordon, 39 App. Div. 639 (57 N. Y. Supp. 1137); Kane’s Estate, 185 Pa. 544; Bell’s Estate, 147 Pa. 389; Gray’s Estate, 147 Pa. 67; Snyder’s Estate, 180 Pa. 70; Nebinger’s Estate, 185 Pa. 399; Conley’s Estate, 197 Pa. 291; Seiber’s Appeal, 9 Atlantic Repr. 863.
    May 15, 1905 :
   Pee Curiam,

The judgment is affirmed on the opinion of the learned judge of the common pleas.


author: Pee Ctjriam,

text:
    Sparks, Appellant, v. Philadelphia & Camden Railroad Company.

      Railroads—Incorporation—Act of April 4, 1868, P. L. 62—Street railways —Underground railroad—Tunnel—Motive power.

    Under the general railroad Act of April 4,1868, P. L. 62, a railroad may be construoted in a tunnel entirely under ground, and it may be operated by electricity.
    A railroad company may be incorporated under the Act of April 4,1868, P. L. 62 to construct a railroad entirely under ground in a city to extend from a point near a river for a distance of about one mile under a street and under the river to an interstate boundary line, without any access to or from its railroad in the city, other than at the terminus; and such a railroad may be operated by electricity. A railroad of this kind is not a street railway.
    Argued March 22, 1905.
    Appeal, No. 83, Jan. T., 1905, by plaintiff, from decree of C. P. No. 4, Pliila. Co., Dec. T., 1904, No. 1581, dismissing bill in equity in case of Amelia R. Sparks v. Philadelphia & Camden Railroad Company.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Willson, P. J., filed the following opinion :
    On September 28, 1904, the defendant company filed articles of association in the office of the secretary of the commonwealth “ For the purpose of constructing, maintaining, and operating a railroad for public use in the conveyance of persons and property, under the provisions of an act of the general assembly of the commonwealth of Pennsylvania, entitled ‘ An act to authorize the formation and regulation of railroad corporations,’ approved April 4, 1868, and the acts supplemental thereto.” These articles indicated the route of the proposed railroad to be from a point of intersection of Market street and Front street, in the city of Philadelphia, to a point on the boundary line between the states of Pennsylvania and New Jersey, “ there connecting with the railroad of any company now organized or hereafter to be organized under the laws of the state of New Jersey.” It is further stated in the same articles that the length of the said railroad will be as near as may be one mile, and that it would be situated entirely within the county of Philadelphia. There is nothing stated in the articles in regard to the mode of construction of the proposed railroad, nor as to the power which is intended to be used for the propelling of cars, but it is conceded by the defendant, as well as averred by the plaintiff, that the defendant company intends to construct the railroad entirely underground from the point of its beginning to its terminus under the river Delaware, and that the power to be used in propelling cars shall be electricity. Letters patent were duly issued to the defendant, thus completing its incorporation.
    After the location of the railroad as aforesaid, the secretary of the defendant corporation gave notice to the complainant that the road of the company as located would pass under her property, and the defendant tendered the complainant a bond for the purpose of covering any damages which might be awarded to her for the construction of the railroad in that manner, which bond she declined to receive; and she alleges ■that the defendant is without authority of law to construct and operate the proposed railroad in the manner above indicated, and that said location of the railroad constitutes a cloud upon her title. The bill filed in this case is intended to prevent the construction and operation of the road, as above indicated.
    This summary sufficiently sets out the case with which we have to deal.
    The right of the plaintiff to challenge the legality of the proposed act of the defendant company cannot be questioned. It is clearly given by the statute of June 19, 1871, P. L. 1360. One of the grounds upon which the plaintiff’s counsel relies to sustain the plaintiff’s claim in the case is that the defendant company proposes to construct a street passenger railway, and that as such railway company, it cannot exercise the power of eminent domain, and by so doing, interfere with or injure the property belonging to the plaintiff. It must be conceded that if this position is a sound one, the plaintiff’s right to the injunction which is asked is established, for the reason that the act of 1868, under which the defendant company is incorporated, was in terms inapplicable to the incorporation of street passenger railway companies. We do not, however, think that it can with' propriety be held that in any fair interpretation of language the defendant company can be said to be a street passenger railway company. The mere fact that its location embraces, for a short distance the line of a street of the city does not make it so. Such a state of affairs might exist, and does, in point of fact, exist in the case of a railroad designed and operated wholly for general purposes under the act of 1868. The consent of the municipal authorities to such an occupation of the street is, of course, a prerequisite to their lawful occupation, even in such a case. The question as to whether, in a particular instance, a railroad has the character of a street passenger railway depends not so much upon its location as upon its intended use. Street railways are artificial highways, designed to accommodate the inhabitants of municipalities, large or small, to enable them to pass from one portion of their territory to another, and to stop at convenient and frequent points, according to the regulations of the company. Ordinarily they are constructed upon the surface of the streets and in conformity with the grades thereof ; they have a local purpose to serve in transmitting passengers from one portion of a city or town to another and over its streets. The fact that tracks of a railroad or railway are laid in and wholly confined to the streets of a city does not, of itself, determine that they are the tracks of a street passenger railway company. In our own city there are corporations which occupy streets of the city, in whole or in part, and whose location does not extend beyond the limits of the city, which were incorporated under the act of 1868, and which it would be a wild stretch of imagination to describe as street passenger railways, as, for example, the River Front Railroad Company.
    The road which the defendant desires to construct, while its location is in the line of Front street for a short distance, swerves therefrom under the plaintiff’s property, crosses Delaware avenue and runs out under the bed of the river to the line of the division between the states of Pennsylvania and New Jersey. There will be no access to or exit from the railroad within the limits of the city of Philadelphia, excepting at the point of terminus or beginning at Front and Market streets; no passenger can take a train there and be transported to any other point within the city limits. Besides, the road is intended for the carriage of property as well as of persons. We fail to see any element in the case that would properly classify the proposed railroad under the head of a street passenger railway company, and no argument to sustain the contrary view can be drawn from the fact that the length of the road, if constructed there, will be only about a mile. It is not the extent of a railroad, but its character, which determines its proper classification.
    We find nothing in any case which has been cited to us by the plaintiff’s counsel that is at variance with the conclusions expressed above, and therefore we will proceed to consider other points in the case, assuming that the defendant company intends to construct such a railroad as is fully and clearly covered by the act of 1868.
    The next question which arises in the case is whether or not under the act of 1868 it is lawful for the defendant company to construct the railroad wholly under the surface of the ground. On this point we find no authority in our own state which will throw much, if any, light upon the subject.
    The case of Potts et al. v. Quaker City Elevated Railroad Company, in 161 Pa. 396, although apparently relied upon with a great deal of confidence by the learned counsel of the plaintiff, does not seem to us to be applicable to the case in hand. There the court had before it a corporation that was incorporated under the act of 1868, but which was attempting, in the exercise of its franchises, to construct an elevated street passenger railway in various streets of the city; and it was held that the city could not give its consent to such a company to build and operate such a railroad; and that that corporation had no right to elevate or depress its tracks, under the provisions of the Act of May 31, 1887, P. L, 275, inasmuch as it had no right of way on the surface.
    We do not find any express legislative grant of authority to any duly organized corporation to locate and construct a railroad under ground, and while we regard the present question as the most serious and doubtful one in the case, we are not satisfied that we ought to regard the defendant as without a franchise to construct a railroad under ground, because there is no such affirmative and positive statutory power given. It is doubtless trae that, when the act of 1868 was enacted, such a thing as a railroad wholly underneath the surface was not only unknown, but probably not contemplated as a possibility. At the same time, even then it was by no means beyond the knowledge of 'the legislature or outside of common experience that portions of railroads were, and, as a matter of necessity, must be constructed under the surface of the ground to a greater or less extent. Tunnels were a common device in railroad construction, as, indeed, were bridges across rivers and bodies of water, and neither one or the other of these devices needed specifically to be mentioned in a statute, in order to confer upon a corporation created under its terms the right to build tunnels or bridges. There is nothing prohibitive or affirmative in the expressed language of the statute which defines how a railroad must be built with reference to the surface of the ground on the line of which it is located. The statute seems to have been wisely framed in such a way as to allow for the development of invention and intelligence and of the use of methods and devices which greater experience and more expert knowledge should make expedient and convenient. To hold that nothing could be used by a railroad company incorporated under the act of 1868, or the general railroad law of 1849, in the wajr of plans or appliances, excepting such as were in vogue at the time when those statutes were enacted, would hardly be regarded as a reasonable or proper view to adopt. Such a construction would bring about a condition of things like a return to mediaeval life. The use of elevated and underground constructions has now become common. Without any special legislative authority, of which we have knowledge, the Pennsylvania Railroad Company and the Reading Railway Terminal Company have built elevated structures for a considerable distance within our city limits, and hardly anyone would dispute the statement that if all the railroads coming into our city were carried underneath the surface, even across the entire limits of the city, there would be great gain to the public, and no damage to private individuals which could not be amply compensated in damages. In other cities, as is a matter of common information, underground railroads have been and are being constructed of considerable extent and greatly to the convenience and advantage of the communities where they exist, and of the general traveling public. We are not disposed to 'limit the force of the act of 1868 in so far as to hold that a corporation created under it is necessarily obliged to construct its railroad upon the surface of the ground, and that it could not adopt that mode of construction which would do away largely, if not entirely, with the discomfort and inconvenience of having tracks laid upon the surface of the streets either longitudinally or crosswise.
    Upon this particular point we must therefore conclude that the plaintiff has failed to establish a ground for the interference of a court of equity.
    One question remains, and that is whether or not the defendant company has a right to use electricity as the power for drawing or propelling cars along the tracks of its railroad. A good deal of what has been said under the previous head of this opinion, is applicable to the present question. There is nothing in the act of 1868 which expressly requires that steam power shall be used in the running of cars upon railroad tracks, and although, as in the case of Potts v. Quaker City Elevated It. R. Company, 161 Pa. 896, it can be found in some cases that the courts have assumed and stated that the statute referred to related to steam railroads, we do not understand that it was intended to be decided that only steam could be used as a motive power. Undoubtedly in 1868 steam was the motive power exclusively used on railroads. Great progress, however, has since been made in scientific discovery and mechanical inventions, and other methods of propulsion are now and have been for a considerable period of time, in common use; they have proved to be of great practical service in mitigation of nuisances and in the effective operation of public conveyances. Of these, electricity may be regarded as a signal instance. This subtle agent is more and more, in point of fact, coming into use on the railroads of the country; and no doubt many practical mechanics and engineers look forward to a day when it will, to a large degree, supplant steam as the motive power upon the railroads of the world.
    In the absence of any positive requirement that steam must be used as the motive power upon the defendant’s railroad, we think courts would be altogether out of syifipathy with the progress of events, and needlessly obstructive to public convenience, if .they should hold that railroad companies could not adapt • themselves to changing circumstances and better methods in such matters without new and express legislative, grant.
    Though it was not the point of the case, and therefore was not ruled upon, the same thought seems to have been in the mind of our Supreme 'Court when the case of Reeves v. Philadelphia Traction Company, 152 Pa. 153, was decided. With reference to substantially the same position which we have just before expressed, it was said by Mitchell, J., “We do not, however, find it necessary to pass upon this question in the present case, and we refer to it only to avoid the possible implication that we deemed it untenable.”
    For such reasons as we have thrown out in this opinion, we are of the judgment that the defendant company cannot be enjoined against the construction of its proposed railroad because ’ it intends to use electricity as a motive power. In this connection we might also suggest that this question is one which does not properly arise at the present time, and that it is connected with the operation rather than the construction of the road in question.
    In conclusion, we ought to state that the views that we entertain, and have _ expressed in this case, are to be taken in connection with the proposition that the defendant, before it can lawfully construct its road, must obtain the consent of the municipal authorities for the occupation of the line of any street under which the road is to be constructed. The absence of such municipal' consent, however, is not averred in the bill and is not one of the grounds upon which the plaintiff asks relief, and although we regard it as we have just stated, as essential, before the defendant company can proceed with its work of construction, we do not think the absence of such consent can at the present time be invoked by the plaintiff as the ground for obtaining the injunction desired. For the reasons which we have stated the injunction must be refused and the bill must be dismissed with costs.

      Error assigned was the decree dismissing the bill.

      George L. Gratvford, of Crawford Eoughlin, for appellant.
    The purpose of the defendant is to construct and operate a street railway, which includes elevated, surface and subway railways. Its location is entirely within the city limits: Elliott on Roads and Streets, 732; Potts v. Quaker City Elevated Railroad Co., 2 Pa. Dist. Rep. 200; Collins v. Northeastern Elevated R. R. Co., 2 Pa. Dist. Rep. 417.
    The fact that the present corporation is designed to carry both passengers and freight is immaterial : Baldwin on American Railroad Law, 1904 edition, page 159; Kincaid v. R. R. Co., 25 Pa. C. C. Rep. 545.
    It is still a passenger railway company, although it may run oyer its own property and not within the bounds of the public highway: Nellis on Surface Railroads, page 2; Kincaid v. Mahoning Valley R. R. Co., 25 Pa. C. C. Rep. 545.
    A power of a corporation by its charter to construct a street railway gives it no authority to construct a steam railroad:. S. & N. Alabama Ry. Co. v. Highland Avenue, etc., Ry. Co., 119 Ala. 105 (24 So. Repr. 114); Phila. v. R. R. Co., 19 Phila. 507; Kincaid v. R. R. Co., 25 Pa. C. C. Rep. 545.
    It is submitted that the only method of incorporating the present company would be as a street passenger railway company under the' act of 1901 and supplements.
    The Appeal of the Western Penna. R. R. Co., 99 Pa. 155, was that of a specially chartered street railway held bound by the act of 1849 as applied to all railroad and railway charters. Volmer’s Appeal, 115 Pa. 166, was the case of an existing railroad under a charter of 1833, and the question was merely the extent of its power to construct branches. Twelfth St. Market Co. v. P. & R. Terminal R. R. Co., 142 Pa. 580, was the case of a railroad chartered under the act of 1868 and with the consent of the city given, and the right to elevate or depress under the Act of May 31, 1887, P. L. 575, upon the question of its right to condemn a corporation’s market property. Same case reported in 28 W. N. C. 111. Heilman v. Ry. Co., 180 Pa. 627, was the case of a street railway with no right of eminent domain, which was not enjoined because its work had been completed. Williamsport Pass. Ry. Co.’s Appeal, 120 Pa. 1, was the case of a street railway incorporated in 1863 without the consent of councils, which it proposed to extend in 1887, the court holding it did not require the consent of councils under the constitution of 1874 or other statutes, having not accepted the constitution. Philadelphia v. McManes, 175 Pa. 28, simply decided that the right of the park commissioners to give the local consent necessary under the Street Railway Act of May 14, 1889, P. H 211, existed—they had that authority under special statutes applying to those commissioners. Northern Cent. Ry. Co. v. Electric Ry. Co., 177 Pa. 142, was -the case of a street railway company under that act, in which the court held that it had no right to cross a steam railroad without its consent where its roadway is not crossed by a public highway. Harriott Avenue, 24 Pa. Superior Ct. 597, was simply a question whether assessments of benefits against a street railway for change of grade of the street upon which it was located could be made, and the court decided that they could not.
    In City of Phila. v. P. & R. R. R. Co., 19 Phila. 507, Judge Thayer quoted the cases' showing that any corporate right must be clearly expressed. A doubtful right does not exist. Duncan v. Penna. R. R. Co., 94 Pa. 435, was the case of the Filbert Street Elevated Road, which was authorized under an express act of 1874 (see page 437), and having the consent of the local authorities. McAboy’s Appeal, 107 Pa. 548, was the case in which certain express acts of 1868 and 1874, not applicable to the present case, authorized the P. & C. R. Co. to build a short elevated branch in Pittsburg with the consent of its councils. Scranton, etc., Traction Co. v. Canal Co., 1 Pa. Superior Ct. 409, was the case of a traction company with the consent of the local authorities crossing a steam road at grade, and the question was how far it was controlled under the Act of June 19, 1871, P. L. 1360, giving courts of equity the duty of supervising grade crossings. Penna. R. R. Co’s Appeal, 116 Pa. 55, simply raised the question of equitable control of grade crossings under that act, and holding under the act of 1868 the right to construct a branch existed before completion of the main line. Rafferty v. Traction Co., 147 Pa. 579, is the case of a street passenger railway claiming under the act of 1887 authority to lay a cable track where a horse-car track is authorized to be laid.

      Morris Wolf, with him Horace Stern, for appellee.
    The only -essentials for incorporation under the act of 1868 are that the purpose of the company to be formed shall be to • construct (1) a railroad, (2) for public use, (3) in the conveyance of persons and property.

      There is no suggestion that the railroad shall be of any particular length, that it shall run in or through any particular governmental district, that it shall run only on, or only above, or only below the surface of the land which it crosses, or that it shall use any particular kind of motive power. The word “ railroad ” includes any road of rails: Stillwater, etc., Street Ry. Co. v. Boston, etc., R. R. Co., 171 N. Y. 589 (64 N. E. Repr. 511).
    The complainant’s first objection is to the fact that the railroad is not a lengthy one. But the shortness of a railroad is immaterial: Volmer’s App., 115 Pa. 166; Twelfth St. Market Co. v. Phila. & Reading Terminal R. R. Co., 142 Pa. 580.
    There is no provision in the act of 1868 limiting its application to railroads not wholly within a city or borough, and as shown before, at least two important railroads wholly within the limits of Philadelphia, viz.: The Schuykill River East Side Railroad Company and the Philadelphia & Reading Terminal Company, have been held properly incorporated under the act of 1868: National Docks Ry. Co. v. Central R. R. of N. J., 32 N. J. Eq. 755; Lieberman v. Chicago, etc., R. R. Co., 141 Ill. 140 (30 N. E. Repr. 544).
    The defendant’s road, as contemplated, is not a street passenger railway: Harriott Ave., 24 Pa. Superior Ct. 597; Grand Rapids, etc., R. R., Co. v. Heisel, 38 Mich. 62; In re South Beach R. R. Co., 119 N. Y. 141 (23 N. E. Repr. 486); Lockhart v. Ry. Co., 139 Pa. 419.
    The difference in the purpose of street railways and of railroads necessitates a difference in their mode of construction and operation. The street railway, intended to serve the public in its passage over the streets from one part of a town or city to another, necessarily confines its route to the streets: Phila. v. McManes, 175 Pa. 28; Northern Cent. Ry. Co. v. Harrisburg, etc., Electric Ry. Co., 177 Pa. 142; Du Bois Traction Pass. Ry. Co. v. Buffalo, etc., Ry. Co., 10 Pa. C. C. Rep. 401; Potts v. Quaker City Elevated R. R. Co., 161 Pa. 396; Com. v. Ry. Co., 161 Pa. 409; In re New York District Ry. Co., 107 N. Y. 42 (14 N. E. Repr. 187); Phila., etc., R. R. Co. v. Ry. Co., 206 Pa. 343.
    A railroad is as much a railroad when it runs under the ground as when it runs over the ground: Lieberman v. Chicago, etc., R. R. Co., 141 Ill. 140 (30 N. E. Repr. 544); Schofield v. Penna. Schuylkill Val. R. R. Co., 12 Pa. C. C. Rep. 122; Bolton v. Transfer Co., 32 Am. & Eng. R. R. Cases, 256; Duncan v. R. R. Co., 94 Pa. 435; McAboy’s App., 107 Pa. 548; Scranton, etc., Traction Co. v. Delaware & Hudson Canal Co., 1 Pa. Superior Ct. 409; New York & Erie R. R. Co. v. Young, 33 Pa. 175; Struthers v. Ry. Co., 87 Pa. 282; Price v. Penna. R. R. Co., 209 Pa. 81; Bishop v. North, 11 M. & W. 418; Great Western Ry. Co. v. Cefn Cribbwr Brick Co., L. R. 2 Ch. [1894] 157.
    Electricity may be used as a motive power: Williams v. Electric Street Ry. Co., 41 Fed. Repr. 556; Malott v. Collinsville, etc., R. R. Co., 108 Fed. Repr. 313; Millvale Borough v. Ry. Co., 131 Pa. 1; Gaw v. Bristol, etc., Ry. Co. 196 Pa. 442; Griesemer v. Oley Valley R. R. Co., 13 Pa. Dist. Rep. 225; Lonergan v. Ry. Co., 3 American Electrical Cases, 273.
    May 15, 1905 :
   Pee Ctjriam,

The judgment is affirmed on the opinion of the- learned president judge of the common pleas.


author: Per Curiam,

text:
    Roaring Creek Water Company v. Anthracite Coal Company of Pittsburg, Appellant.

      Equity—Injunction—Preliminary injunction—Water—Pollution of stream.

    A preliminary injunction will be granted against a coal company where on the hearing it is developed that the defendant was pumping impure water which had accumulated in a coal mine into a stream where it polluted •the supply of drinking water for more than 30,000 people, when by the construction of a flume at trifling expense the mine water could be discharged into another water course where it would injure no one.
    Argued March 27, 1905.
    Appeal, No. 85, Jan. T., 1905, by defendants, from decree of O. C. Northumberland Co., No. 273, in Equity granting preliminary injunction in case of Roaring Creek Water Company v. Anthracite Coal Company of Pitts-burg et al.
    Before Fell, Brown, Mestkezat, Potter and Elkin, JJ.
    Affirmed.

      Bill in equity for an injunction. Before Auten, J.

      Error assigned was decree granting preliminary injunction.

      Q. M. Clement, M. H. Taggart and M. Laura Cannon, for appellant.

      S. P. Wolverton, for appellee.
    May 15, 1905 :
   Per Curiam,

This appeal is from a decree granting a preliminary injunction. In accordance with the practice of the court we withhold any expression of opinion on the merits of the controversy until after final hearing and decree, and determine only whether on the facts developed an injunction should have been granted or refused. It was shown at the hearing that the defendants were pumping impure water which had accumulated in a coal mine into a stream where it polluted the supply of drinking water for more than 30,000 people, when by the construction of a flume at a trifling expense the mine water could be discharged into another water course where it would injure no one. The case was clearly one for the granting’ of a preliminary injunction.

The decree of the' court is affirmed at the cost of the appellants.


text:
    Bear Gap Water Company v. Penn. Anthracite Coal Company, Appellant.
    Argued March 27, 1905.
    Appeal, No. 84, Jan. T., 1905, by defendants, from decree of C. P. Northumberland Co., in Equity No. 272, continuing preliminary injunction in case of Bear Gap Water Company v. Penn. Anthracite Coal Company et al.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    May 15, 1905 :
   Per Curiam,

The question in this case is the same as in No. 85. The decree of the court continuing the preliminary injunction granted is affirmed at the cost of the appellants,


text:
    Clifton Heights Borough, Appellant, v. Thomas Kent Manufacturing Company.

      Railroads—Lateral railroads—Act of May 5, 1832, P. L. 501—Equity—• Injunction—Preliminary injunction.

    A preliminary injunction should be granted on a bill filed by a borough against a manufacturing company where it is shown by the bill and the injunction affidavits that the defendant was attempting to construct a lateral railroad at grade across a street of the borough without its consent.
    Argued March 27, 1905.
    Appeal, No. 35, Jan. T., 1905, by plaintiff, from decree of C. P. Del. Co., Dec. T., 1900, No. 190, refusing preliminary injunction in case of Clifton Heights Borough v. Thomas Kent Manufacturing Company.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Bill in equity for an injunction. Before Johnson, P. J.
    From the record it appeared that the original bill was filed to restrain the construction of a siding. The supplemental bill was filed to restrain the construction of a lateral railroad. The supplemental bill was as follows :
    1. That the defendant, the Thomas Kent Manufacturing Company, having availed itself of the benefits of the Lateral Railroad Act of May 5, 1832, and its supplements, claims the right, as operator of said lateral railroad, to construct its lateral railroad across Baltimore avenue in tlie borough of Clifton Heights at grade and is about to construct its said lateral railroad.
    2. Your orator denies the right of the Thomas Kent Manufacturing Company to construct a lateral railroad across the said Baltimore avenue in the borough of Clifton Heights at grade.
    Your orator therefore prays as follows:
    1. That an injunction may issue preliminary until hearing and perpetual thereafter enjoining and prohibiting the said The Thomas Kent Manufacturing Company from constructing its lateral railroad across the said Baltimore avenue within the borough of Clifton Heights at grade.

      The averments of the supplemental bill were supported by injunction affidavits.
    The court refused the preliminary injunction.

      Error assigned was the decree of the court.

      William I. Schaffer, with him Frank B. Rhodes, for appellant.
    —Since the passage of the Act of June 7, 1901, P. L. 531, every grade crossing, whether of one railroad by another or of a highway by a railroad, comes before the court with a heavy burden of proof upon it: Mifflinville Bridge, 206 Pa. 420; Penna. R. R. Co. v. Bogert, 209 Pa. 589; B. & O. R. R. Co. v. Butler Pass Ry. Co., 207 Pa. 406; Perry Co. R. R. Extension Co. v. Newport, etc., R. R. Co., 150 Pa. 193; Pittsburg & Lake Erie R. R. Co. v. Lawrence County, 198 Pa. 1.
    The defendant must have municipal consent before it can lay its tracks across the highway: B. & O. R. R. Co. v. Butler Pass. Ry. Co., 207 Pa. 406; Pittsburg v. Pittsburg Ry. Co., 209 Pa. 13.

      E. II. Hall, with him W. B. Broomall, for appellee.
    It is respectfully submitted that the court was right in refusing the injunction on the amended bill. There was no authority in the court to grant the injunction : Phila., etc., Railroad Co. v. Upper Darby Twp., 202 Pa. 429.
    15, 1905:
   Per Curiam,

We are of opinion that a preliminary injunction under the prayer of the supplemental bill should have been granted. The decree refusing it is reversed at the cost of the appellee, and the record is remitted with direction that an injunction be issued.


text:
    Middleton’s Estate.

      Will—Legacy—Trust and trustees—Vested and contingent estates.

    The testator bequeathed his residuary estate in trust, inter alia, to invest the sum of $10,000, and to pay the-net income to his grandson “until he shall attain the age of twenty-five years, at which time my said trustees are to pay to my said grandson the principal thereof.” The grandson died without having reached the prescribed age. Held, that the grandson took a vested interest in the principal of the $10,000.
    The trust as to the balance of the residuary estate was to pay the income to testator’s wife until the grandson should be twenty-five and then, or at his death, whichever event should first happen, to convey one-third to testator’s son B. and his wife in equal shares; and if he should be then dead to pay to his wife $5,000; one other third to testator’s son L., and if dead, to his wife $5,000; and the remainder, upon his attaining said age to his grandson absolutely. B. died before the grandson, leaving his wife surviving. The grandson did not attain the age of twenty-five years. Held, that the wife of B. was entitled to receive $5,000, and that the estate of the grandson was entitled to the balance.
    Argued March 27, 1905.
    Appeal, No. 363, Jan. T., 1904, by Louis Middleton, from decree of O. C. Pliila. Co., July T., 1904, No. 313, dismissing exceptions to adjudication in Estate of Samuel W. Middleton, deceased.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Exceptions to adjudication.
    The material portion of the will of testator was as follows:
    . “ I give and bequeath to the Pennsylvania Company for Insurance on Lives and Granting Annuities the sum of seven hundred dollars to invest and keep the same invested and to apply the income thereof in keeping in good order and repair my lot in Laurel Hill Cemetery, and the tombstone therein erected.
    “ I give, devise and bequeath to my wife Kate Cecilia Middleton and to her heirs the house and lot No. 2115 Venango Street, Philadelphia, in which we now reside and the furniture and all my personal effects therein.
    “ I also give and bequeath to my said wife one-third part of all the stocks, bonds, money and personal securities of which I shall die possessed.
    * All the rest, residue and remainder of my estate, real, personal .and mixed, whatsoever and wheresoever situate, I give, devise and bequeath to The Pennsylvania Company for Insurance on Lives and Granting Annuities in Trust, however, and to and for the following uses and purposes, that is to say, In Trust to put aside a sum of ten thousand dollars and to invest the same and collect and receive the income therefrom, and after deducting all proper and legal charges to pay over the net income to my grandson Bushrod Middleton Hoppock until my said grandson shall attain the age of twenty-five years, at which time my said trustees are to pay to my said grandson the principal thereof, said income during the continuance of the trust to be free from the debts, contracts or alienations of my said grandson and not to be liable to levy or attachment by process of law.
    “ All the rest and residue of my estate real personal and mixed whatsoever and wheresoever situate, I give, devise and bequeath to the said The Pennsylvania Company for Insurance on Lives and Granting Annuities, In Trust, nevertheless to and for the following uses and purposes, namely: in trust to collect the rents, income and profits therefrom and after paying all necessary and legal charges to pay the net income to my wife Kate Cecilia Middleton until my said grandson Bushrod Middleton Hoppock shall attain the age of twenty-five years, and when my said grandson shall attain the age of twenty-five years or at his death 'whichever event first occurs, then in Trust to assign, transfer and convey one equal third part of the principal thereof absolutely and in fee simple to my son Benjamin Middleton and his wife Elbe Middleton to be equally divided between them, provided my said son be at that time living, but if he be then dead, then in place of this gift to him and his wife my Trustees are to pay to the said Elbe Middleton the sum of five thousand dollars. And in trust upon the attaining the age of twenty-five years by my said grandson or at his death, whichever first occurs to assign, transfer and convey one other equal third part of the principal of my said residuary estate absolutely and in fee simple to my son Louis Middleton subject, however, to the payment of the sum of twenty-five hundred dollars to be given to his wife Mary Middleton, provided that my said son be living at the time, but if he be then dead then in place of the gift to him of a third of said residuary estate my trustees are to pay to the wife of my said son, the said Mary Middleton the sum of five thousand dollars. And in trust upon the attaining of the age of twenty-five years by my said grandson to assign, transfer and convey the remainder of my said residuary estate absolutely and in fee simple to my said grandson Bushrod Middleton Hoppock.”
    Other facts appear by the opinion of the court by Ashman, J., which was as follows :
    The testator bequeathed his residuary estate in trust, inter alia, to invest the sum of $10,000, and to pay the net income to his grandson “ until he shall attain the age of twenty-five years, at which time my said trustees are to pay to my said grandson the principal thereof.” The grandson died without having reached the prescribed age. We agree with the auditing judge that he took a vested interest. Time was not annexed to the substance of the gift, which was to the legatee at all events; but the date of payment, not the gift itself, was simply postponed. There was no limitation over. It is scarcely worth while even to glance at the cases which embody, some of them, refined distinctions as to what will constitute a contingent gift. A mere direction to executors to pay to a legatee “ as soon as he arrives to be twenty-one years of age,” there being no substantive gift, is contingent: Moore v. Smith, 9 Watts, 403 ; or a gift in trust to pay to nephews “ when they shall respectively attain the age of nineteen years :” Engles’ Estate, 167 Pa. 463. So a gift to a person at, or if, or as and when, he shall attain twenty-one: Hanson v. Graham, 6 Yes. 239, etc. But when the subject of the gift is separated from the rest of the estate and vested in trustees for the benefit of the legatee, the gift, although in form contingent, will be held vested: Branstrom v. Wilkinson, 7 Ves. 421; or where interest is given to the legatee till the time of payment arrives: Hanson v. Graham, 6 Yes. 239. See, also, Roberts’ Appeal, 59 Pa. 70.
    The trust as to the balance of the residuary esta'te was to pay the income to testator’s wife until his said grandson should be twenty-five, and then or at his death, whichever event should first happen, to convey one-third to testator’s son, Benjamin, and his wife in equal shares ; and if he should be then dead, to pay to his wife $5,000; one other third to testator’s son Lewis, and, if dead, to his wife $5,000, and the remainder, upon his attaining the said age, to his grandson absolutely.
    Benjamin, the son, died before the grandson, leaving his wife surviving. His interest was contingent upon his surviving the grandson in case the latter should attain the age of twenty-five years, or in case he should die before that period, and the grandson died in the interim, but having outlived Benjamin. The wife of Benjamin was thereupon entitled to receive $5,000, and the balance of the share lapsed. The auditing judge awarded it to the estate of the grandson. It will be observed that the testator, while he gave one-third of his residuary estate to his son Benjamin and one-third to his son Lewis, gave the remainder to his grandson. This difference in naming the quantum of the several gifts was adopted, we must assume, with deliberation and with a purpose. The remainder was not necessarily one-third of the estate ; it included all that was left after legacies which were well given had been paid and legacies which had lapsed had fallen back into the estate. This disposition of the residue is in harmony with the intent apparent throughout the will to favor the grandson. The objection that the grandson’s share of the residue was a contingent interest is futile. The residuary legacy did not rest in the direction to convey to him upon attaining a certain age. Of such a bequest Mr. Hawkins says-in his Treatise, at page 226 : “ A bequest to A. at twenty-one and a bequest to A. payable at twenty-one do not much differ in expression, yet one is a vested and the other is a contingent gift.” Under the present will the direction to pay was only the sequence of an antecedent gift. The testator instructed the trustees to hold the residue for the grandson and to convey the same to him absolutely at his age of twenty-five years. In no sense could this designation of time enter into the substance of the gift; its effect was merely to postpone the payment of a gift which vested at the death of the testator.

      Error assigned was decree dismissing exceptions.

      John Marshall Gest, with him Meliok, Potter $ Eeohert, for appellant.

      Henry La Barre Jayne and Biddle Ward, for Catherine C. Middleton, executrix of Benjamin Middleton Hoppock, were not heard.

      James W. M. Newlin, for estate of Bushrod Middleton Hop-pock, was not heard.
    May 15, 1905:
   Per Curiam,

The decree is affirmed on the opinion of the learned judge of the orphans’court.


text:
    Corr, Appellant, v. Philadelphia.

      Municipalities—Abandonment of land appropriated for public use.

    An abandonment of land appropriated by a municipality for public use cannot be established by proof merely of a failure for the time to use it, or of a temporary use of it not inconsistent with an intention to use it for the purpose for which it was taken, or another public purpose.

      Ejectment—Pleading—Abandonment—Municipalities.

    In an action of ejectment against a municipality to recover land previously appropriated to public use, abandonment of any intention to use the land for any public purpose is sufficiently pleaded where the statement avers that “the defendant has utterly failed in any particular to use the said land for a reservoir, a pumping station, or for any other purpose whatever connected with the supply of water to the city; nor has it put the said land to any other public use, and has utterly abandoned any intention which it might have had to so use the said land.”
    Argued March 27, 1905.
    Appeal, No. 53, Jan. T. 1905, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1902, No. 282, sustaining demurrer to statement in case of Bernard Corr v. City of Philadelphia.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Ejectment for land in the thirty-eighth ward of the city of Philadelphia.
    The statement averred that the land had been appropriated, in 1884, by the city for a reservoir.
    The statement continued as follows :
    “ Subsequently, it appealing that the said land was unsuited for 'the purpose of a reservoir, „ the defendant abandoned the site and let the land -which is the- subject of this suit, for farm purposes. The defendant has utterly failed in any particular to use the said land for a reservoir, a pumping station, or for any other purpose whatever connected with the supply of water to the city of Philadelphia; nor has it put the said land to any other public use, and has utterly abandoned any intention which i,t might have had to so use the said land.”
    The defendant demurred to the statement.
    The court sustained the demurrer and entered judgment for defendant.

      Error assigned was the order of the court.

      Joseph A. Culler t, with him J. Stanley Smith, for appellant.
    Abandonment was well pleaded: Henshall v. Wilkinson Mfg. Co., 19 Montg. Co. Law Repr. 48; Anchor Savings Bank v. Stoneham Tannery Co., 8 Pa. C. C. Rep. 303; Smith v. Stevenson, 47 Pitts. L. J. 231; Steinman v. Lancaster County, 14 Lane. L. R. 334; Battin v. Northwestern Mut. Life Ins. Co., 130 Fed. Repr. 874.

      John E. Maurer, assistant city solicitor, with him John L. Kinsey, city solicitor, for appellee.
    May 15, 1905 :
   Pee Curiam,

An abandonment of land appropriated by a municipality for public use cannot be established by proof merely of a failure for the time to use it, or of a temporary use of it not inconsistent with an intention to use it for the purpose for which it was taken, or another public purpose. The facts alleged in support of the averment of abandonment do not strengthen it. But there is a distinct averment of an actual abandonment of any intention to use the land for any public purpose. This we think was a sufficiently well pleaded abandonment to put the city to a defense. The order sustaining the demurrer and entering judgment for the defendant is reversed with leave to the defendant to answer.


author: Peb. Cubiam,

text:
    Long, Appellant, v. Philadelphia.

      Negligence—Municipalities—Excavation in street occupied by railroad— Railroads.

    A city cannot be held liable for the consequences of an accident resulting from an excavation in a street, where it appeared that the street was occupied by the tracks of a railroad company, that the excavation in question had been made by a contractor of the railroad company in taking up and relaying the tracks, and that this work had not been abandoned but was in full progress when the accident occurred.
    Argued March 28, 1905.
    Appeal, No. 82, Jan. T., 1905, by-plaintiff, from judgment of C. P. No. 1, Phila. Co., June T., 1904, No. 4757, on verdict for defendant in case of William J. Long, a minor, by his next friend and mother, Catharine Long, v. City of Philadelphia.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to .recover damages for personal injuries. Before Beitler, J.
    At the trial it appeared that on August 2, 1904, plaintiff was injured by an accident resulting from an excavation in Delaware avenue where it intersected with Spruce street in the city of Philadelphia. At the point in question the street was occupied by railroad tracks, and the excavation had been made by a contractor for the railroad company in taking up and relaying the tracks.
    The court charged in part as follows:
    Was the city negligent if the city was doing it, if the city was in charge of that work ? According to the testimony of some of the witnesses the trench which had been dug • there was filled in and paved for ordinary travel for a width of twenty feet. Twenty feet, of course, is more than enough width for two teams passing each other. Was there a lack of care under the circumstances if the city was liable ? That is a question for you to determine. But the city’s answer to the case is, “ We were not doing the work at all.” “ Somebody else was doing that work, somebody that had the power to occupy that street, that came from the power that made this municipality.” The legislature of Pennsylvania made the city of Philadelphia a city; and the legislature of Pennsylvania made the belt line and the river front and the Reading and the Pennsylvania corporations, and gave them, so far as the streets that they were there to occupy, as much power as the city of Philadelphia ; in fact, a higher power, because a railroad may sometimes and under some circumstances have the right to occupy a public highway against the wishes of the municipality. If this work was being done by corporations other than the city of Philadelphia, then those corporations are responsible to this plaintiff for the manner in which that work was done, if the work was then in progress. Now, was it then in progress? You have the rather careless testimony, it seems to me, of a couple of the plaintiff’s witnesses that nothing had been done for two weeks. That is probably true as to that particular spot, but this kind of work was a kind of work that could not be begun and finished in a minute. It was a kind of work which progressed from the northern to the southern limits of the old city of Philadelphia, from Vine street on the north to South street on the south; and it embraced the laying of three tracks, of railroad tracks according to the modern ideas.of how railroad tracks should be laid in city streets ; it involved the digging up of the street for between eighteen inches to two feet, the filling in of a concrete base, the laying of the ties, the fastening of the rails; and the paving had to come last. The digging up of the pavement had to be the first thing and the laying down of the pavement had to be the last thing; and you gentlemen know that you can’t any more lay a pavement all at once than you can build a house all at once; stone has to go against stone, the .same as brick has to go on brick. Now, was there at the time that this man sustained his injury an abandonment of that work by the Pennsylvania Railroad Company or by McNichol ? If there was, then the city’s duty to take care of that highway was again imposed on them, and it would have to step in and finish up that work for the preservation of the public who had a right to use that street. But, if that work was then in progress, then in charge of the Pennsylvania Railroad or the Pennsylvania Railroad Company’s contractor, this man, this boy has his action against either the contractor or the railroad company; but he has no action against the city of Philadelphia; and I think you can see the common sense of that.
    [Now, there is only one theory upon which the plaintiff can recover against the city in this case; and that is, that you must believe that this work was not being done by the Pennsylvania Railroad or its contractor, but was being done by the city of Philadelphia. Upon that there has not been a word of proof. There is not a line of testimony to contradict the testimony of those men who say that they were doing that work, and were doing it for the Pennsylvania Railroad or the Pennsylvania Railroad’s contractor. If you find, and I confess that I don’t see how you can help finding, that this work was in charge of the railroad company and its contractor, then this plaintiff has sued the wrong party.] [3]
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was (3) portion of charge as above, quoting it.

      Augustus Trash Ashton, for appellant.

      Joseph S. MacLaughlin, Harry T. Kingston, assistant city solicitors, and John L. Kinsey, city solicitor, for appellee were not heard.
    May 15, 1905:
   Peb. Cubiam,

The main ground on which a reversal of the judgment is asked is that the jury were instructed that the city could be held liable only on the theory that it was doing the work on the avenue where the plaintiff was injured. This ground would be well taken if there had been no other instruction on the subject of the city’s liability, because a liability might have arisen if the work had been abandoned and the city had resumed possession of the street. But the instruction complained of was in connection with one branch of the case only. The jury had before been told that if the work had been abandoned the duty of taking care of the street was imposed on the city. When we consider, as we should, the whole instruction on the question of the city’s liability, we find the charge entirely free from error. Moreover, no ground of liability was shown and a verdict might properly have been directed for the city. The work was being done for railroad companies that had charter rights to lay tracks on the avenue. There had been no abandonment of it. It had been prosecuted day and night with vigor and was in the charge of the contractor.

The judgment is affirmed.