was complete without the slabs, and that the slabs were put there more as an ornament than for use, and with no intention to make them part of the freehold, then the plaintiff' could not recover for them; but if, on the other hand, you believe that the slabs were essential to make the counter complete, and were intended to become part of the realty, then the plaintiffs are entitled to a verdict."

It was contended by the learned counsel for the plaintiff that the above instruction was er

THE HARMONY BUILDING ASSOCIATION roneous, in this, that it gave undue weight to

v. BERGER.

Marble counter slabs in a store, where the counter is complete without them, and weather 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, Error to the Court of Common Pleas, No. 1, of Philadelphia county.

the intention of the defendant; that while as between landlord and tenant the intention to annex is the criterion, yet, as between vendor and vendee the rule is not so. As an abstract proposition this criticism is true to a certain extent. There may be some things which are so essentially a part of the freehold, that, as between vendor and vendee, the intention of

Opinion by PAXSON, J. Filed February 13, the owner may be of little weight. But this is

1882.

not such case. The articles themselves were of such an equivocal character as to raise a jury question. Hence the object in placing them there became material, which is all the learned

The defendant was the owner of premises No. 2612 Girard avenue, in the city of Philadelphia. He occupied the first story as a bakery, the balance of the building as a residence. The plain-judge intended, and all the jury probably untiff held a mortgage upon the premises, which he foreclosed, and the property was sold by the sheriff. He became the purchaser at the sheriff's sale, and proceedings were instituted under the Act of Assembly to obtain possession. The defendant took away from the premises, as stated in the history of the case, "the marble slabs from the counter, heater stove out of the chimney, and iron frame attachment to the roof," and this action of trespass was brought in the court below by the plaintiff to recover damages for said taking. The single question presented by the record is, whether the articles referred to were a part of the realty, and passed to the purchaser at the sheriff's sale.

derstood by the word "intention." If the coun-
ter was complete without the marble slabs; if
they were placed there for the purpose of orna-
ment, they were no more a part of the freehold,
and necessary to its enjoyment, than a loose
cloth cover would have been. In neither case
would there have been any attachment to the
freehold, and the intention of the owner is to
be regarded in considering the character of the
articles. Without going over the learning upon
this vexed question, it is believed the foregoing
views are fully sustained by the authorities,
among which it is sufficient to refer to Hill v.
Sewald, 3 P. F. Smith, 272, and Seeger v. Pettit,
27 Id., 437.
Judgment affirmed.

For plaintiff in error, A. L. Hennershotz, Esq.
Contra, Albert T. Goldbeck, Esq.

There is no serious dispute as to the stove and the-iron frame. The former was what is known as a Baltimore heater, a stove so placed in the chimney as to heat one or more rooms above it. THE WOODLAND OIL CO. v. LAWRENCE. Yet it was only a stove, and not part of the realty. The iron frame was something in the nature of a weather vane fastened to the roofa plain upright rod, with the name of the defendant upon it. Its principal object appears to have been to indicate the defendant's place of business.

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.

It is not a good defense to the bond that the timber upon the land was cut by the owner before the purchaser at the tax sale had executed the surplus bond.

Appeal from the decree of the Court of Common Pleas of Forest county.

The question of the marble slabs was more doubtful. There was evidence that the counter | was complete without them, and that they were On the 10th of June, 1878, the Woodland Oil more ornamental than necessary. Upon this Co., Limited, purchased from William Lawpoint the learned judge instructed the jury as rence, treasurer of Forest county, at the treasfollows: "If you believe that it (the counter) | urer's sales of unseated lands, for the arrearages

GHENY VALLEY RAILROAD COMPANY.

If a mother permit a child of tender years to go down
towards, and to pass, cross and stand on a railroad
crossing, the father of the child cannot recover dam-
ages from the railroad company for injuries to the child
sustained under such circumstances. Such action is
contributory negligence on the parent's part, and
should be so declared as a conclusion of law.
Error to the Court of Common Pleas, No. 2,
of Allegheny county.

of taxes for the years 1876 and 1877, a certain | JOHN CATO, Plaintiff Below, v. THE ALLEtract of unseated land in Kingsley township, Forest county, of 420 acres, part of Warrant No. 5136. The taxes and costs of sale due upon said land were $169.50, and the bid for said land was $1,484.50. The taxes and costs, $169.56, were duly paid to the treasurer, and a bond for the surplus of the bid, to wit, for $1,314, dated March 26, 1880, was given to said treasurer, and by him filed in the prothonotary's office, on 29th of May, 1880. A deed from said treasurer, dated June 10, 1878, acknowledged in open court September 23, 1878, for said land, was duly delivered to the said Woodland Oil Co., Limited. There was no redemption from this sale. After the time for redemption expired, John and Thomas Wilkinson, on the 22d of June, 1880, gave notice to the appellant of a demand for the sum of money named in the surplus bond, and caused judgment to be entered on said surplus bond on the 28th of June, 1880, for the amount thereof, $1,350. At the time of the treasurer's sale of this land to the appellant, there was standing thereon a large amount of nice pine timber, of much greater value than the price bid at trea

surer's sale. The chief value of the land consisted in its pine timber. After the time of the treasurer's sale of this land to the appellant, and before the time for the redemption thereof expired, all this timber was taken off from the land, and the appellant entered into the possession of the naked tract of land. On the 27th of September, 1880, the appellant presented to the court below a petition setting forth the facts above recited, and praying said court to open the judgment and let it into a defense for the amount of the timber so taken off from said land. A rule to show cause was granted, testimony was taken, and the court being of opinion that the appellant could not defend against the judgment entered upon the bond, for timber taken from the land between the sale and time for redemption, discharged the rule. From this decree this appeal is taken.

PER CURIAM. Filed October 31, 1881.

The timber upon the land was cut by the owner before the purchaser at the tax sale had executed the surplus bond. Until that had been done he had no title whatever; they had the ownership, and the right to the full enjoyment of the land and the timber. How it would have been had the timber been cut after the bond had been given and accepted by the owners it is not necessary here to decide. As to the owners non constat that the bond would ever be given and the title perfected.

Order affirmed and record remitted.

This was an action brought by John Cato to of seven years, while upon the track of the derecover damages for injuries to his son, a child fendant company. It was in evidence upon the trial, testified to by the mother of the child and wife of the plaintiff, that the child was knowingly permitted to wander down to the railroad crossing, and that on the day of the accident the boy started, with his mother's knowledge and consent, to cross the tracks.

Under this evidence the court affirmed the evidence the plaintiff is not entitled to recover, defendant's point, which was, "That under the and the verdict of the jury must be for the defendant." And also charged the jury that “it such as the mother in this case, to see and is contributory negligence in law for a parent, permit a child to go down towards, and to pass, cross and stand on a crossing, and, therefore, already intimated, that there can be no recovery as a matter of law, we instruct you, as I have in this case of John Cato, the father, and your verdict will be for the defendant."

The affirmance of defendant's point and the portion of the charge above quoted were assigned as error.

For plaintiff in error, A. M. Watson, Esq.
Contra, Messrs. Hampton & Dalzell.
PER CURIAM. Filed October 24, 1881.

This was an action by the father to recover
damages for an injury sustained by his minor
son on a railroad crossing. The boy testified
he was standing on the crossing. The mother
testified she was watching the boy. The learned
judge, therefore, declared it to be contributory
negligence in law for a parent, such as the
mother in this case, to see and permit a child to
'go down towards, and to pass, cross and stand
on a crossing, and therefore the father could not
recover. If a parent knowingly permit a child
of tender years to wander across and remain on
a railroad track it is undoubtedly negligence
on the part of the parent, and should be so de-
clared as a conclusion of law: Glassey v. Hes-
tonville Passenger Railway Co., 7 P. F. Smith,
172; Philadelphia & Reading Railroad Co. v.
Long, 25 Id., 257.
Judgment affirmed.

Circuit Court, United States.

Western District of Pennsylvania.

ALLEGHENY NATIONAL BANK OF PITTS-
BURGH v. HAYS.

1. Where the share in real estate devised to defendant
in an execution was expressly subjected by the will to
the payment of testator's capital in a firm, the admin-
istrator cum testamento annexo is entitled to the fund
arising from the marshal's sale of such share.
2. Where a testator, without creating an express trust to
pay legacies, makes a general residuary disposition of
his whole estate, blending the realty and personalty in
one fund, the real estate is constructively charged with
the legacies.

3. The implication of such charge prevails notwithstand-
ing the fact that the testator expressly charged one of
the residuary shares of the realty with the payment
of his capital in a firm.

4. Where a will by its residuary blended disposition of the realty and personalty charged the real estate with

auditor, who sustained the latter claims, seems to have given the case a very careful consideration. I approve his findings of fact, and am of opinion that his distribution proceeds on sound legal principles.

1. In treating the amount of the testator's capital in the firm of William B. Hays & Co. as a lien upon the share of the real estate devised to the defendant, and as discharged by the marshal's sale, the auditor was clearly right: Hanna's Appeal, 31 Pa. St., 53. The share devised to the defendant was expressly subjected by the will to the payment of that capital, and the auditor properly sustained the claim of the administrator cum testamento annexo to the fund realized by the sale of that share.

2. The legacies under the will of William B. Hays, Sr., undoubtedly come within the wellsettled rule that where a testator, without creat

the payment of legacies, they remain a charge thereoning an express trust to pay legacies, makes a and are entitled to be paid out of the proceeds thereof upon a sale on execution against the residuary devisee, although the testator left ample personalty to pay the legacies which the executors failed to apply thereto,

the legatees not being parties to any devastavit of the

personal assets.

.

5. Where the real estate of decedent, charged with payment of the legacies, had been partitioned among the

devisees, the legatees not being parties to the partition, and never acceding to any apportoinment of the legacies, they may claim payment in full out of a fund arising from the sale of the share allotted in the partition to one of the devisees, when sold on the execution against him.

general residuary disposition of his whole estate, blending the realty and personalty together in one fund, the real estate is constructively charged with the legacies: Hill, Trustees, 860; Lewis v. Darling, 16 How., 1. This principle was adopted as a rule of property in Pennsylvania at a very early day (Nichols v. Postlethwaite, 2 Dall., 131), and has constantly prevailed, as is shown by the cases cited in the auditor's report. The fact that the testator expressly charged the amount of his capital in the firm of William B. Hays & Co. upon the share of the realty devised

Sur exceptions to auditor's report distributing to the defendant, does not interfere with the the proceeds of execution.

Opinion by ACHESON, D. J. Filed July 15, 1882. The fund for distribution arises from the sale of real estate sold by the marshal as the property of William B. Hays, Jr., under a lev. fa. upon | a judgment sur mortgage given by the defendant to the plaintiff. The property is part of the residuary estate devised by the will of William B. Hays, Sr., deceased, to his five children, of whom the defendant is one. Curtis, another son and devisee, conveyed his share to the defendant, and the parties subsequently caused partition to be made among themselves. The property sold consists of the two shares assigned to the defendant-one in his own right as devisee, and the other in his right as alienee of Curtis.

implication arising from blending the real and personal estates in the residuary clause, or indicate any intention not to charge the legacies upon the real estate: McLanahan v. Wyant, 1 Pen. & W., 112.

3. But the auditor having found that the personal estate which came into the hands of the executor was sufficient to pay all the debts and expenses of administration and the legacies, it is insisted that he erred in holding that the lien of the legacies upon the real estate nevertheless continued. To sustain the contrary doctrine the exceptants rely upon Hanna's Appeal, supra, and Kohler's Appeal, 3 Grant, 143. In those cases it is indeed said that "when assets are received by the executor sufficient to cover the expenses of administration, satisfy debts, and It is claimed, on the one hand, that the fund pay legacies, the real estate is discharged from should be applied to the plaintiff's mortgage, further liability," and "if the assets are wasted and to a purchase money mortgage which the or misapplied, the loss falls on the legatees;" defendant gave Curtis, and which, by assign- that "the real estate charged is liable on a dement, came to one McIntyre; and on the other ficiency of assets, but not for the misapplication, hand, the fund is claimed by the administrator waste or insolvency of the executor." There, d. b. e. cum testamento annexo of William B. however, the court undoubtedly spoke in reHays, Sr., and legatees under the will. Thespect to a case where the personal estate is the

Court of Common Pleas, No. 1.

facts at the time and for a number of years after the dedication.

The only direct testimony as to the declara

JEFFREYS et al. v. CITY OF PITTSBURGH et al. tions of intent on the part of Colonel Foster

Courts of equity have power, at the instance of the next of kin, to prevent the disturbance or removal of the remains of the dead interred in grounds dedicated for burial purposes, unless the right or duty of removal is manifested by appropriate legislation or authority. Where there was an undoubted parol dedication of land for the use and benefit of soldiers and inhabitants of a village, for a burial ground mainly, and an alleged

dedication for educational purposes also, which latter can only be inferred from the actual use of a portion of the land for that purpose, the extent of such dedication must be limited to the ground actually occupied therefor.

Authority to compel the removal of the dead, if properly

exercised, gave no right to use the burial ground for school purposes.

An attempt to remove the dead from the remaining portion of the land dedicated, and its occupancy for school purposes and erection of new building, re

strained by injunction, at instance of licensees of

burial right therein and next of kin.

Application for preliminary injunction. Opinion by STOWE, P. J. Filed May 31, 1882. The evidence in this case shows that Col. Wm. B. Foster, in 1814, being then the owner of a tract of land, containing about one hundred and twenty-five acres, laid out the town of Lawrenceville, which in 1834 was incorporated into a borough, and by proceedings under an Act of Assembly, dated 6th April, 1867, consolidated with and made part of the city of Pittsburgh. Colonel Foster in laying out this tract into town lots, set apart and dedicated a certain piece of ground, containing about two acres, and now the subject of controversy in this case, for the use and benefit of soldiers and inhab-. itants of the village, to be used either solely for a burial ground (as claimed by plaintiffs) or for the dual purpose of a burial ground and for educational purposes (as claimed by defendants).

comes from his son, Morrison Foster, who says that he learned from his father that the property was donated for the purpose of securing a suitable burying ground for deceased soldiers and for such of the inhabitants of the village of Lawrenceville as might use the same as a place of interment, and that he knows from an intimate knowledge of the purpose of his father "that the lot was not intended as a site for school buildings." I find also that in sundry conveyances for adjoining property, from as early as 1837 to as late as 1871, this piece of ground is referred to as the "Borough Graveyard," "Washington Graveyard," "Burial Ground" and "Lawrenceville Graveyard." There is also other evidence tending to sustain the theory of plaintiffs which it is unnecessary to mention particularly.

It is, however, unquestionably true, that some years after Colonel Foster had devoted this property to public use, and during his life, at least as far back as 1829, if not several years sooner, there was a small school-house erected upon a portion of the lot, by public subscription, and school kept there for quite a number of years; that religious services were also held at times in the building, and that finally it was disused for any purpose and allowed to fall into decay, till 1834, when, by authority of the borough councils, it was sold for five dollars and torn down and carried away. After this the ground was leveled off and used for graves, up to the commencement of this controversy. From 1834 there has been no attempt to use any of the ground for school buildings, nor anything done indicating that it was supposed to have any connection with school purposes, further than the fact that in accordance with the resoof|lution of a town meeting held in 1835, concurred in by the councils, "the surplus moneys accrued and which thereafter should accrue from burying the dead or otherwise, after keeping the ground in good order and repair, were devoted to the common schools of the borough; and afterwards some money was obtained from such sources and paid over to the school board.

The evidence leaves no doubt as to the fact the dedication of this property for the use and benefit of soldiers and inhabitants of the village, nor that the main purpose was for a burial ground; but the question arises as to whether that was the sole purpose, or was the dedication also for education?

There having been no dedication in set terms, by writing or deed, the only way the fact of dedication and its objects can now be determined is by the evidence of witnesses, who profess to have knowledge of the intent of the donor, as expressed by his own declarations and indicated from proof of the manner in which the ground was actually used and understood to be held by persons conversant with such

|

The old school building, which was only sixteen feet by twenty-four, in one corner of the ground, was located upon a portion of the lot entirely distinct from that sought to be occupied by defendants for a new building, and the greater part of that is now included in Main street and covered with pavement.