PRACTICE-Continued.

A garnishee in an attachment execution having ap
peared and joined issue, cannot after verdict against
him, except to the validity of the service of the writ
upon him.....

Service of process upon life insurance companies under
Acts of April 24, 1857, and April 8, 1868..
PUBLIC ROAD.. Effect of absolute confirmation of
plan of laying out.....
PAYMENT. Payment to one whose authority is, at best,
but prima facie, assumes all risks and consequences of
the failure of that assumption, otherwise if payment
be compelled by a court of competent jurisdiction......
Payment to a father as guardian, of money belonging to
his infant, who was not duly appointed as such, but
who was recognized by the Orphans' Court as such, was
considered as good after thirty years....
QUESTION OF LAW OR FACT. Whether or not a
fence enclosing a barnyard was sufficient to keep a
stallion from breaking out, one of fact.....
Whether exempted property of an assignor for benefit of
creditors, who has presented same to his wife, is her
own separate estate, one of fact..
The question of fact to be illustrated by testimony was
whether risk, which occasioned injury, was of an ex-
traordinary and unusual character-a risk not ordi-
narily incident to employment in which deceased was
engaged. In absence of testimony to this effect, the
case should not have been submitted to the jury.........
Where lien of judgment is in question, and it appears
that it is entered in name by which debtor is known,
though it be not his Christian name, and he be also
known by latter, and that he signed his name in both
modes is one of fact..

What is, and what is not negligence in a particular case,
is always a question for jury when measure of duty is
ordinary and reasonable care....
Wherever death is caused by use of a deadly weapon, it
must be for the jury to say, under the evidence,
whether there existed "a willful, deliberate and pre-
meditated" intention to take the life of deceased...
Ordinarily the assignment of a judgment carries with it
the right to proceed with any outstanding process
issued thereon; and it is a question for the jury to de-
termine from the evidence and the nature of the trans-
action whether such was the intention of the parties at
the time the assignment was made..
QUO WARRANTO. To oust from office councilmen
who are alleged to have forfeited their membership by
violation of law, will not be issued on petition of tax-
payers who have no interest in the question, except
that which is common to the other citizens of the
borough......

Will not be issued at instance of private relator for the
purpose of determining existence of public corpora-
tion, nor to dissolve such a corporation, nor to deter-
mine the right of a person to hold an office, or his
usurpation thereof, unless relator himself has a claim
thereto....

Where a private relator institutes proceedings to remove
the respondent from a corporate office, in order that he
himself may enjoy and exercise the rights and duties
of said office, he must show,-first, that he has title to
the office; second, that the respondent has been guilty
of usurping the exercise of its duties and privileges,
or at least some of them....
Where proceedings in quo warranto are commenced for
the protection of the public against an illegal usurpa-
tion of a corporate franchise, the State, through the
attorney-general, being the prosecutor, it rests with
the respondent to show title, and if the title be incom-
plete the State is entitled to judgment....
RAILROADS. See Negligence-Courts.
What is contributory when a child is permitted to pass
over and stand upon crossing.....

315

136

Power to construct right of way through burial ground... 22
The location of railroad on public road is an appropria-
tion of latter, and extension of a city so as to include
such public road, subsequent to location but prior to
construction, does not so change character of the
road as to withdraw it from operation of 13th section
of Act of February 19, 1849, requiring railroad com-
panies to reconstruct any portion of a turnpike or pub-
lic road, site of which they have found it necessary to
change..
When railroad company, subject to provisions of above
act, fails to comply with 13th section thereof, the mu-
nicipality may reconstruct road taken and recover cost
thereof from railroad company, or may, by mandamus,
compel the company to reconstruct, but failure to re-
construct concerns the public. It is therefore an injury
to Commonwealth, to which belongs franchise of
every highway, and for such general injury to public
an indictment may be sustained.

The purchasing of a ticket from a scalper and using the
same, is not an offense under Act of May 6, 1863, and

136

Marble counter slabs, in a store, where the counter is
complete without them, and weathers vanes attached
to the roof of a house, are not parts of the realty, and
hence do not pass to the sheriff's vendee of the land..... 17
When lien of judgment for purchase money cannot be
impeached....

43

There is no obligation upon the owner of a vacant lot or
unused brick yard to fence it, so far as his duty to
passers-by is concerned....

50

Charged with legacies, where there is a general residuary
clause in a will......

19

རྩེབཙའ

60

95

Inferential dedication for school purposes, how limited.. 21
Tenants for life are entitled to have their shares set
apart in land, if it can be done without prejudice.........
When conversion of worked by terms of a will..
RECORDING ACTS. See Husband and Wife.
REMOVAL OF CAUSES. See Courts.
REPLEVIN. See Vendor and Purchaser.
An assignment of a bill of sale of an animal pledged
for the payment of a debt, passes a sufficient title to
the assignee to maintain an action in replevin against
an owner who stealthily takes it out of his possession.. 225
Replevin for articles severed from realty will not lie by
one who has neither possession nor right of possession
381
of articles in question......
RESERVATIONS IN DEED. Grantor of land ex-
cepted and reserved from his grant, inter alia, all
minerals." Held, that exception did not include
petroleum or mineral oil...
465
RIPARIAN OWNER. A party who is the owner of
land adjoining a pond used as a reservoir by a water
company under the right of eminent domain, cannot
be considered as a riparian owner in the proper sense
of the term...

RIGHT OF WAY. See Injunction.
Where a right of way is granted by deed, the owner has
a right to its enforcement in the mode and form stipu-
lated by the deed, and the fact that such enjoyment is
prevented is sufficient ground for interference by in-
junction....

A right of way appurtenant to a tract of land, whose use
is not in way or manner qualified or restricted, may be
used by not only the party in whom such right is
vested, but also by all to whom he may grant permis-
sion for its use..

329

174

342

Ib

Those who are entitled to the use of the dominant tene-
ment cannot be regarded as trespassers..
RURAL PROPERTY. Where on scire facias on mu-
nicipal claim for paying in Philadelphia, defense was
charge had been made according to frontage rule of
assessment, whereas property is rural, classification of
property by Board of Revision of Taxes for purposes
of taxation is not conclusive evidence as to its rural
character. It is for jury to decide from all evidence
in case whether property is rural or not.....
455
SALE OF PERSONAL PROPERTY. Change of
location of property is not essentially necessary. If
purchase was in good faith and for valuable considera-
tion, followed by acts intended to transfer possession
as well as title, and vendee assumed such control of
property as to reasonably indicate a change of owner-
ship, delivery of possession cannot, as matter of law,
be held insufficient..

SAVINGS BANK. What was held an investment
and not a deposit.......

SCHOOLS. See Burial Grounds.

An alleged dedication of land for educational purposes
which can only be inferred from the actual use of a
portion of the land for that purpose, must be limited
to the ground actually occupied therefor....
By virtue of provisions of Act of June 8, 1881, P. L., it
is now unlawful to exclude any child from public
school nearest to his place of residence on account of
color alone.

Where there are in one school district two school houses,
one for white children and one for colored, colored
hild living near former school cannot be excluded
therefrom on account of his race alone....

SEDUCTION. See Evidence.

The "good repute of the woman alleged to be seduced is
an essential ingredient of the offense, and must not
only be averred in the indictment but proven affirma-
tively by the Commonwealth by such evidence as will
justify the submission of the question to the jury. The
ordinary presumption of her good reputation for
chastity is insufficient..

453

3

21

382

165

SET OFF. An attachment under the Act of 17th March,
1869, where bond was filed, was dissolved; plaintiff
then brought assumpsit, in which defendant offered in
evidence as set off, the bond and proof of damages re-
sulting from the attachment. Held, that such dam-
ages arose ex-contractu, and the evidence was admis-
sible...
Damages for which an action sounding in tort might be
maintained may be set off in an action on a promissory
note......

SEQUESTRATION. See Corporations.
SHARSWOOD, CHIEF JUSTICE. Complimen-
tary notice of Albany Law Journal on his retirement
from the bench..

Tribute by Philadelphia Bar to..........
Death notice of..

SHERIFF. It is the duty of the sheriff to allot, where
the jury has parted decedent's real estate, so as to cor-
respond with the parties in interest..
Some of personal property that had been levied upon
and advertised for sale was loaned by sheriff to third
party; sheriff told the bidder at sheriff's sale that
property loaned by him was to be sold with the other
property in his actual possession. Held, that bidder
could recover from the sheriff...

200

202

127

179

411

60

418

Ib

SHERIFF'S SALE. If a sheriff's sale is made with
the intention of hindering, delaying or defeating cred-
itors, and the purchaser has knowledge of such, it is
null and void, although the full value may be paid...... 257
But, a mere fraudulent intent or effort, if not successful,
is not sufficient, nor is the mere fact that the property
was purchased at less than its value....
A sheriff's levy described the premises as "having
erected thereon a large two-story brick building,
known as the Corry Wooden-ware Works, with ma-
chinery for manufacturing tubs, pails, etc., large
boilers and engine, pulleys, shafting, belting," etc.
Held, that the levy embraced two patented machines,
although loose and portable, used in the works in the
ordinary course of the manufacture of tubs and pails,
to paint or grain designs thereon and thus finish them
for the market...

Market street runs north to and at right angles with
Stanton avenue and ends there. A lot situated on west
side of Market street forty feet south of Stanton
avenue is described in purchase money mortgage as
"beginning on westwardly side of Market street, at a
point distant forty feet from northwestwardly corner
of Market street and Stanton avenue, thence south-
wardly," etc., correctly describing lot in other respects,
and stating that it is same lot conveyed to mortgagor
by mortgagee by deed of even date, and that mortgage
is to secure purchase money thereof.
Held, that a sheriff's sale on this mortgage gave a good
title....

327

333

SHERIFF'S INTERPLEADER. Claimant filed
an approved bond, but no narr. The court rule made
this neglect equal to abandonment. Subsequently un-
der an al. fi. fa., another levy was made. Claimant's
demand for another issue was refused. The al. fi. fa.
was set aside, but vend-ex., which had been issued was
sustained....
SHERIFF'S SALE. See Amendment-Municipal
Lien-See Real Estate-Errors and Appeals.
Validity of title of vendee, without notice of parol mort-
gage, under..

122

72

Sale on municipal lien, in Pittsburgh, under Act of Janu-
ary 6, 1864, divests prior fixed on the property sold........ 199
Where such sale was procured by A. for the purpose of
divesting a charge on the land for the support of an
imbecile, and the vendee purchasing for A., to whom
he subsequently conveyed. Held, that the land in the
hands of vendee was not subject to the charge......
Execution creditors purchasing real estate at judicial
sale take the same title thereto as would be taken by a
stranger; and the amount of the bid is the sole meas-
ure of credit on the claim.....

The law presumes that a public judicial sale is made in
good faith. This presumption stands, unless overthrown
by clear and satisfactory evidence of fraud, or unfair

means..

Duty of judgment creditors at sheriff's sales. Right of
plaintiff to adjourn sheriff's sales...
STARE DECISES. A party who selects a form of pro-
ceeding which a higher court cannot review, is con-
cluded by the decision......
STATUTES-CONSTRUCTION OF. A general
statute without negative words cannot repeal a previous
statute which is particular, even though the provisions
of one be different from the other. To effect such re-
sult the repugnancy must be strong or the inconsistency
irreconcilable.

STATUTES-Continued.

When a statute creates a right and provides a particular
mode by which it may be vindicated, no remedy other
than that afforded by the statute can be enforced........ 212
A supplement to an act of incorporation is a mere license
of the State, and may be revoked by the State at any
time. It is not a contract....

SUBROGATION. See Surety.

SUICIDE. Attempt at, what effect, in criminal cases.
See Evidence.

STATUTE OF FRAUDS. Where a vendee of land,
under articles of agreement, contracts with third
party, that the title shall be conveyed to such third
party upon consideration that the vendee shall share
in the profits of a resale, this is not a contract for an
interest in land within the meaning of the Statute of
Frauds........

Possession to which is added permanent improvements
of great value is such a part performance as will
take parol contracts for the sale of land out of the
Statute of Frauds..

SUPREME COURT. Order transferring certain count-
ies from Middle and Western Districts to Eastern
District...
SUPREME COURT DECISIONS. Announcement
of...

SUMMARY CONVICTION. See Crimes.

371

267

273

422

.63, 76, 88

Mayor of the City of Pittsburgh has no jurisdiction by,
for selling liquor on Sunday.

Record in summary conviction must contain finding that
special act has been done by defendant, and describe
and define it in such way as to individuate it, and show
that it falls within an unlawful class of acts............
SURETY. On bond of voluntary assignee, when liable to
distributees under auditor's report.-See BONDS....

In an action against a surety, a judgment recovered
against the principal debtor is, in the absence of fraud
or collusion, conclusive as to the amount of the indebt-
edness as against the surety.......
SURETY. See Bonds.

Rights of bankrupts, as against the assignee, to appro-
priate collaterals, and proper method to contest same,
Where the estate of a deceased surety in a judgment is
compelled to pay the amount thereof, the adminis
trator of such deceased surety is entitled in his official
capacity to be subrogated to the rights of the plain-
tiff in the judgment....

A. had a judgment against B. and against C. as surety.
He revived it by amicable writ of scire facias, to
which C., surety, was party. It was not revived
against terre-tenant, of which fact C., surety, had
knowledge. Held, that failure to revive against
terre-tenant did not relieve the surety.
Mere forbearance, however prejudicial to surety, will
not discharge him. This rule applies where creditor
suffers judgment to lose its lien for want of revival
against principal debtor, and thereby subsequent
creditors are enabled to take land..

TAX SALES. See Defenses.

The owners of timber land sold at a tax sale have, prior
to the execution of the bond for the balance of the
purchase money, the full right of enjoyment of the
land and the timber...

On sale of unseated lands bid in by county commis-
sioners at sale for taxes, in accordance with provisions
of Act of 1824, when proceeds of such commissioners'
sale are not sufficient to pay both county and town-
ship taxes, township is entitled to its proportion from
amount realized..

14

436

107

378

53

59

499

17

414

TAXES AND TAXATION. See Constitutional Law

Where there is a compulsion actual, present, potential
in inducing the payment by force of process available
for instant seizure of person or property, and the de-
mand is really illegal, there the party by giving no-
tice of the illegality and his involuntary payment can
recover back the money so paid....
128, 213
A protest is of no avail except in the case of payment
made under duress and coercion, and then only as
evidence tending to show that the alleged payment
was the result of duress

A payment of taxes is not compulsory because made
under a threat, expressed or implied, that the legal
remedies for its collection will be resorted to..

Ib

213
A voluntary payment of money, under a protest, to pre-
vent the sale of lands, under a threat to sell the same

TENANTS FOR LIFE. See Partition.

TERRE-TENANTS.

Not necessary to serve, in
scire facias on mortgage..
TICKET SCALPING. See Rail Roads.
TIMBER. It being by statute (Act of May 4, 1869), un-
lawful for owner of undivided interest in timber land
to cut down or remove from land any timber trees,
without having first obtained consent of his co-ten-
ants and as against his non-consenting co-tenants his
sale of lumber manufactured out of timber so cut or
removed passing no title to vendee: Held, in an
action of trover against such vendee by non-consent-
ing part owner, that plaintiff was entitled to re-
cover value of his interest in lumber, as of date of de-
fendant's conversion, with no allowance for expense
and labor of trespassing vendor.
Timber unlawfully cut down by owner of undivided
interest in land without consent of his co-tenant and
still lying upon land at time of marshal's sale of un-
divided interest in land of non-consenting owner who
had not elected to treat felled timber as personalty,
remains part of freehold, and interest of defendant in
execution therein passes to marshal's vendee as
realty.......

TITLE. As to quieting title of heirs and devisees, un-
der Act of February 24, 1834, as against creditors of
decedent.

43

408

170

Ib

When one purchases land with knowledge of secret
equity in third person, he may perfect his title by
outstanding liens, and his knowledge does not affect
the title derived from a sale upon the liens purchased, 12
One who purchases land at assignee's sale, subject to
existing mortgages, is not bound to pay them off un-
less he expressly or by implication agrees to do so,
and may secure his own title by purchasing them and
proceeding to perfect his title under them.....
Where holder of equitable, borrows a sum of money
from third party, portion of which is applied on ac.
count of purchase money, and holder of legal title
executes to lender a deed which is not recorded, it
being understood that the property is conveyed
simply as security, transaction will be held to
constitute a parol mortgage from borrower to
lender, which will be ineffectual as against the
title acquired by a vendee of the land at sheriff's sale
under a subsequent judgment against the borrower.
Where the amount of loan has been left by borrower
with lender, and subsequently purchase money for
the land is paid directly from said amount to vendor,
vendee at sheriff's sale will not be compelled to ten-
der amount so paid out to lender before he is entitled
to recover possession...

When taken in husband's name, but paid for with
wife's money, subject to resulting trust in favor of
latter....

12

72

82

50

When at time of parol contract for purchase of land
vendor held deeds for the land with name of grantee
in blank, which fact was unknown to plaintiff, vendor
did not have a good and perfect title as represented... 148
TRESPASS. See Damages -Right of Way.
A child can be treated as a trespasser......
TRUSTS AND TRUSTEES. Where wife's money
goes for purchase of land, and, at time of sale, she de-
mands that deed be made to her, but is overruled by
her husband, who takes title himself, land is sub-
ject to a resulting trust in favor of wife. By an Or-
phans' Court sale whereat purchaser takes land free
from all liens, etc., resulting trust is transferred to
fund which is awarded to wife in preference to judg
ment creditors of husband....
Negligence of, in making investments

March 31, 1860, both to forfeiture of their offices and
to punishment, if they become interested, directly or
indirectly, by suretyship or otherwise, in matters
over which they have no supervision as such council-

231

It is not necessary that conviction be first had of the
misdemeanor to give the court jurisdiction to declare
the forfeiture.....
TOWNSHIP. Township road having been taken and
condemned by railway company, a dangerous road on
side of railroad was used as township road for num-
ber of years. Township for a time protected a nar-
row portion at edge of embankment by guards, but
finally permitted the guards to fall into decay........... 491
TROVER. Trover will not lie against the owner of
freehold, who has taken possession of premises, for
215
fixtures attached by a tenant...
TURNPIKE COMPANY. When, cannot exact toll, 421
TURNPIKE ROAD. Where parties own lots front-
ing on turnpike road which is vacated, and new street
run at an angle to course of old turnpike. Held, that
the lines of lots in dispute should be the continua.
tion of old lines at right angles with the vacated road, 343
ULTRA VIRES. Such contract, if fully executed,
except payment of consideration money, cannot be
avoided by corporation....

The defense of ultra vires is never allowed out of re-
gard for the defendant, but rests solely upon public
policy.....

VOLUNTARY PAYMENT. See Taxation.
VENDOR AND PURCHASER.

ute of Frauds.

235

235

See Title and Stat-

290

An assignee's sale was made of land on certain terms.
The vendee neglected and refused to comply with said
terms; the assignee then notified the vendee he would
apply at the next term of court for an order to sell,
under the Act of 17th February, 1865, and the sale
was subsequently made, but on different terms and
for a lower price per acre. Held, that the vendee
could not be held for the difference in price by reason
of the terms of payment being different.
After contract for sale of land had been executed, and
before any money had become due thereunder, land
in question was seized and sold by sheriff, upon judg.
ment obtained against vendor prior to the contract of
sale. The amount realized at sheriff's sale was more
than sufficient to pay all judgments against vendor,
and more than whole sum vendee had agreed to pay
for land. Both vendor and vendee claimed excess.
Held, that excess was rightly awarded to vendee...... 368
Vendee of land by articles of agreement is owner, sub-
ject to the vendor's lien for unpaid purchase money,
and vendor has no such title thereto as will support
an action of replevin for house which is being removed
from land by one to whom the vendee has sold it...... 381
If, however, such sale by the vendee were for the pur-
pose of hindering and delaying vendor from recovering
unpaid purchase money, evidence would be admis
sible to show that vendor had purchased house in
question under fieri facias on judgment entered by
him against vendee, in order thereby to show title to
chattel which would support the replevin...........

381

VERDICT. In suit for erection and construction of saw
mill, defense being that plaintiff had not completed
mill, jury rendered verdict in favor of plaintiff for $248,
"and the plaintiff to complete the job according to
contract." Held, that such verdict would be set aside, 365
WAIVER. Of condition in policy of insurance, that
suit shall not be commenced within ninety days........ 86
WAGES. See Lien.

Where one, not defendant, having any interest in land
is induced to confide in verbal promise of another
that he will purchase for benefit of former at sheriff's
sale, and, in pursuance of this, allows him to become
holder of legal title, a subsequent denial by latter is
such a fraud as will convert purchaser into a trustee
ex maleficio......
TOWNS AND VILLAGES. All questions of fact
and of expediency, in a proceeding to incorporate a
town or village, are to be determined by the grand
jury and Court of Quarter Sessions, and an appeal
does not lie from the decree of the court......
185
Members of town councils are liable, under Act of

WIDOW'S APPRAISEMENT. See Decedents' Es-

tates-Evidence.

...........

77

27

Right to, not ousted by subsequent marriage....
WILL. See Devise-Deed-Legacy.
What was held to be a deed and not a will..
A. bequeathed portion of his estate to heirs and assigns
of his deceased son W. who was indebted to A. Held,
that W.'s children took in their own right and not by
representation, and that W.'s indebtedness to A. could
not be deducted out of their legacies.......

31

WILL-Continued.

By the residuary clause of A.'s will his estate was di-
vided into four equal shares, his widow being one of
the residuary legatees. She having refused to take
under the will, held, that other residuary legatees were
entitled to whole of residue..

Where by terms of, executors are directed to sell realty
at their discretion, and may be compelled to sell after
certain time, held, that this works a conversion of the
real estate....

"

Where testator gave to his executrix part of his estate,
directing her to pay his debts, and then by codicil di-
rected her to sell a lot and pay the debts out of the
proceeds, which was insufficient for the purpose, she
was required to pay the balance of the debts.
John Adams by will devised real estate to his wife for
life and directed that after her death it should be sold
and proceeds divided among his children, and then pro-
vided as follows: "It is also my will that no one of
husbands or wives of aforesaid children shall have any
interest in or control over property hereby bequeathed,
but that shares of my said children shall belong
to them separately and exclusively, whose receipts
therefor shall be deemed and taken as a full discharge
to my executors. At testator's death he had two mar-
ried daughters. After death of testator's wife, child-
ren by writing, in which the husbands of the two mar-
ried daughters joined, agreed to accept the land as
real estate, and afterwards partition was made and
purparts awarded to each. Held, that under this will
the interests of married daughters were separate use
trust and that upon death of mother interest vested
in them under the provisions of will. While it is true
that married women could not dispose of or incumber
their estate because of trust, yet it does not follow
that they may not exercise a power of election which
the law recognizes to exist in ordinary legatees to take
land itself instead of its product when sold........
Construction of a will-Direction to executors to sell
farm after death or marriage of widow works conver-
sion of the real estate, and when so qualified, the fol-
lowing clause: "I also bequeath to said children
farm on which I now reside, subject to estate of my
widow in same, etc.," does not operate as devise, but
children take as legatees, not as devisees.....
Devise to testator's son and son's wife for life, with "re-
mainder in fee-simple to his heirs at law in case he
should have issue, then said tract of land to revert to
heirs at law of my three daughters, A., B. and C. in
fee-simple," gives only a joint life-estate to the son
and his wife. The failure of issue meant is not an in-
definite failure of issue, and rule in Shelley's case
does not apply. As soon as son has a child, remainder
in fee vests in that child, opening to let in afterborn
children. When once vested in such children fee is
absolute..

Ib

95

141

423

425

491

Direction in will that all testator's estate, real and per-
sonal, be appraised and sold as soon as it can be done
with advantage, and that all the money arising from
sale of real estate be equally divided among my child-
ren, share and share alike, works a conversion of the
real estate which took effect at the death of tes-
tator. Provision that any of his sons might, at his op-
tion, take farm at appraisement, did not change effect
of direction to sell. Were it not for devise over, in
case any of devisees died before reaching the age of
twenty-one years, and without lawful issue, legacies
must be taken as vested. When child, therefore,
lived beyond that period, her share became absolute..... 497
A testator devised and bequeathed to his wife the resi-
due of his estate in trust to apply the income of the
same to herself and to his children living at his death
in equal shares, empowering her, at the expiration of
seven years from his death, to make partition of his
real estate to and among his children (the children of
those deceased to take their parent's share), and allot
to them their several and respective shares, expressly
ordering and declaring that until such partition was
made no interest was to vest in any of his children.
He also gave his wife such power over the income of
the estate that she might retain any child's share until
the distribution of the corpus of the estate was made,
and then incorporate the same with such child's share.
Held, that no child had any vested interest in the testa-
tor's estate until partition was made, and that any in-
come retained became a part of the estate, and did not
vest until the share of which it formed a part was
allotted....

Testator made will dated November 20, 1871. On Jan-
uary 13, 1873, he executed another, and on January
1873, he executed a codicil to the last will, wherein he
referred to each distinctly, and declared that if he
should die before a certain date the earlier will was to
be taken as his last will and testament. He died be-
fore the date he had provided for. Held, that as there
was no intimation that codicil should not take effect,
the clear intent was that it should attach itself to

309

WILL-Continued.

whichever writing became operative, and that it should
have full effect...

In proviso to his will testator directs manner in which
net share of each child shall be ascertained. After-
wards he revokes bequest to R., as contained in two
sentences of his will quoted by him in his codicil, but
carefully avoids changing or annulling mode in which
share of each child is to be ascertained. He then gives
the share of his son R. to his son's wife. Held, that
share to which R.'s wife was entitled was share which
R. would have taken if his wife had been substituted
as legatee in his stead....

355

391

A man of sound mind and disposing memory is one who
has full and intelligent knowledge of act he is engaged
in, full knowledge of property he possesses, an intelli-
gent perception and understanding of disposition he
desires to make of it, and of persons and objects he de-
sires shall be recipients of his bounty. It is not neces-
sary that he collect all these in one review. If he un-
derstands in detail all that he is about, and chooses
with understanding and reason between one disposi-
tion and another, it is sufficient for the making of a will 405
He directed "that the money coming from R. must be
equally divided between all my heirs except B., and
her share shall go to M." There were seven children.
Held, that this fund was to be divided into seven equal
parts, two of which were to be distributed to M.
An express and positive direction to pay at a specified
period will not be overborne by inference or argument
from other parts of the will......

141

284

Testator directed that his executors should sell certain
real estate, invest the proceeds thereof for the period of
twelve years after his decease, and pay over annually
to each of his nine grandchildren one-ninth of the in-
terest thereof; "or if any of them have died leaving
heirs, then pay same to said heirs." 'And at the full
expiration of twelve years from the time of my de-
cease shall, in like manner, pay over the principal.".... 294
Two of the grandchildren having died before the expira-
tion of the twelve years, each leaving a widow and
children to survive him; held, that the legacies were
contingent and that distribution was to be made to
their heirs. Held further, that the word heirs meant
the persons entitled to distribution under the intestate
act, and that the surviving widows took the one-third
of their legacies....

One of the deceased grandchildren left four children to
survive him, one of whom subsequently died. Held,
that one-sixth part of the contingent legacy be-
queathed to his father vested in him so as to be trans-
missible to his legal representatives....

Ib

Ib

Testator devised all his property in trust to pay certain
annuities, and after the annuitant's death to pay over
the estate to the Pennsylvania Hospital. Held, that
although the testator's estate yielded an income large-
ly in excess of what was necessary to pay the annuities,
the trustees should retain the whole estate, as it was
not to be paid over to the hospital by the terms of the
will till after the decease of the annuitants...
302

An attempt, in a will, after granting fee simple absolute,
to appoint guardian to take charge of property for life
of devisee, and to declare property free from liability
for debts of owner, is inconsistent with grant..... 403
Especially it cannot be done without use of apt words..... Ib
WITNESS. A joint obligor was called to prove the exe-
cution of the note, in a suit against his deceased co-
obligor. Held, incompetent....

One who is both executor and beneficiary under a will
is a competent subscribing witness, and may testify as
to the execution of the will upon an issue of devisavit
vel non...

230

305

One not directly interested in case before court is com-
petent witness, although he is directly interested in
441
question involved.....

WHARFAGE. Municipal corporation claiming right
to exact wharfage for use of public wharf must show
plain legislative grant of franchise; and such au-
thority cannot be deduced from powers to lay out,
regulate and exercise all needful jurisdiction over
roads, streets, lanes and alleys, and to make laws, ordi-
nances, by-laws and regulations for good order and
government of municipality not repugnant to or in-
consistent with laws of the Commonwealth. Borough
of Elizabeth has no such riparian proprietorship in
wharf at foot of Market street as will sustain its claim
to wharfage......
WHARVES. City of Philadelphia is not liable to
lessees of wharves, who may be damaged by filling up
in front or at sides of same by matter dis-

space from culverts emptying into river Delaware

beyond low water mark, as such lessees have no title
beyond low water line....
WORDS-CONSTRUCTION OF. Heirs in an

agreement...

459

360

101