baum, Mary Reed, Jane Meanal, Eliza Rind and Eleanor Blair, all children of my deceased daughter Nancy, who was intermarried with John Blair, deceased, I will and direct that the net proceeds arising from the sale of this part of my farm * * * shall be divided into nine equal parts. And that my said executors, or the survivor of them, shall, for the period of twelve years from the time of my decease, keep said net proceeds invested at interest, and pay over annually to each of my above named grandchildren one-ninth of the interest thereof annually; 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 decease shall, in like manner, pay over the principal. But neither interest nor principal shall be liable to attachment." Thomas M. Blair died on the 26th of Decem ber, 1876, leaving to survive him his widow, Mary J. Blair, and one child, Mrs. Anna B. Schroth. John K. Blair died in September, 1876, leaving to survive him a widow, Julia F. Blair, and four children, to wit, Morrow Blair, who died on the 4th of July, 1879, James Blair, Reed Blair and Lida Blair. The fund for distribution arises from the rents of the real estate prior to its sale and the interest of the proceeds of sale, and accrued after the death of John K. and Thomas Blair. Three execution attachments were issued upon judgments obtained against Henry Blair and served upon the executors, and the plaintiff's therein claim that his share of the fund should be distributed to them on said attach ments. Opinion by OVER, J. Filed February 24, 1883. The first question to be determined is whether distribution of two-ninths of the fund is to be made to the administrators of the estates of Thomas M. and John K. Blair, or to their heirs. And this depends upon whether the legacies are to be considered as vested or contingent. It seems clear that the words "have died," as used by the testator, have reference to the period of time indicated immediately preceding their use. If this be the case, this sentence of the will could be read as follows: "Or if any of them have died at the time the annual payment of interest is to be made, leaving heirs, then the payment shall be made to said heirs.” The testator then directed that at the expiration of twelve years the executors "shall, in like manner, pay over the principal;" that is, that they shall pay one-ninth of it to each of the grandchildren who are then living, and to the heirs of such as are dead the one-nith that such deceased legatee would have received if living. If this be the proper construction of this clause of the will, it would seem that it was the intention of the testator that the legacies should not vest until the expiration of the twelve years. This construction is strengthened by the fact that his purpose evidently was to create a trust for the period of twelve years to protect the legacies from liability for the debts of the legatees; as it thus appears that the postponement of the enjoyment of the gift was on account of the character of the donees which indicates his intention that the legacies should not vest until the expiration of the twelve years: McClure's Appeal, 72 Pa. St., 418. And also by the further fact that there is no gift except as it is implied from the direction to pay over, which of itself, unless a contrary intention appears, makes the legacies contingent: McClure's Appeal, supra; Chess' Appeal, 87 Pa. St., 362. This case is to be distinguished from Provenchere's Appeal, 67 Pa. St., 464, as there the postponement of the gift was made to let in another interest, and, as stated in the opinion of the court, there was no contingency of survivorship expressed, nor was there any reason to imply it. Whilst here the postponement was not made to let in another interest, and the contingency of survivorship is expressed in the will. The legacies being contingent, it follows that distribution is to be made to the "heirs" of John K. and Thomas M. Blair, deceased, and not to their administrators. As they left widows to survive them, the question arises as to whether they can participate in the distribution as "heirs" of their deceased husbands. By the terms of the will the testator's real estate was converted into personalty, and therefore the fund for distribution is personal. The word heirs, when used in disposing of personalty, unless a contrary intent is indicated by the will, is construed to mean the persons entitled to distribution under the intestate act: Eby's Appeal, 84 Pa. St., 241. There does not appear to be anything in this will indicating a contrary intention, and therefore distribution of one-third of the legacies bequeathed to John K. and Thomas M. Blair is to be made to their surviving widows. John K. Blair left four children to survive him, one of whom, Morrow Blair, has since died. Under the authority of Chess' Appeal, supra, it is clear that one-sixth part of the contingent legacy bequeathed to John K. Blair vested in Morrow Blair so as to be transmissible to his personal representatives. One-fifty-fourth part of the fund then is to be so distributed. The testator expressly provided that neither the interest nor principal shall be liable to attachment. Are the creditors of Harry Blair then entitled to participate in the distribution of his share of the fund on their attachments? The executors hold the corpus of the estate to invest for a period of twelve years under a special trust, which gives him only the right to enforce the intention of the testator, which is, that the income shall be paid annually to him and shall not be liable to attachment for his debts. That the testator could so secure the income to him appears to be settled by numerous authorities: Fisher v. Taylor, 2 Rawle, 37; Barnett's Appeal, 46 Pa. St., 400, and cases there cited. It follows, then, that his attaching creditors have no claim on his share of the fund. For accountant, J. W. Kirker, Esq. dent, as the duly elected and qualified burgess of the borough of Kittanning, is entitled to participate in and preside at the meetings of the town council thereof. The town of Kittanning was erected into a borough by Act approved April 2, A. D. 1821, P. L., 229 to 233. The act provided for the election of a burgess and town council (the council to consist of five members), and a high constable. By the third section it was enacted "that the burgess and town council, duly elected, and their successors forever, shall be one body politic and corporate in law by the name of "The burgess and town council of the borough of Kittanning, in the county of Armstrong," shall have perpetual succession, etc., etc., etc. By the sixth section the town council, a majority of whom shall form a quorum, are to meet For legatees, Messrs. J. W. Hall, J. W. Col- as often as occasion may require, and enact such lins and A. S. Miller. by-laws, rules, ordinances and regulations, and For attachment creditors, Messrs. Schoyer & assess, apportion and appropriate such taxes as McGill, S. H. Geyer and A. C. Johnston. Court of Common Pleas, Armstrong County. COMMONWEALTH ex rel. v. D. L. NULTON. The term "corporate officers," in the Act of 1851, "regu lating boroughs," does not mean officers of the corporation, but refers only to those made a body politic and corporate in the charters of boroughs incorporated by Acts of Assembly, and to those in whom the powers of the corporation, as such, were vested in boroughs in corporated by the courts under the Act of 1834. Where, in the charter of a borough incorporated by Act of Assembly, "the burgess and town council" were made a body politic and corporate in law, and such borough afterwards became subject to the restrictions of the Act of 1851, "regulating boroughs," etc., the burgess, as one of “the corporate officers designated in the charter," is entitled to meet with the other corporate officers, and as the chief officer of the corporation, by whom the by-laws, etc., are to be signed, and the oath administered to the other corporate officers, to preside at such meetings. shall be determined by a majority of the town council necessary to promote the peace, good order, benefit or advantage of said borough. The tenth section declares the duties of the burgess to be to cause the by-laws, rules and Ordinances, so made, to be recorded and carried into full execution. Under this charter the burgess clearly was not entitled to act as a member or preside at the meetings of the town council. In April, A. D. 1877, however, the borough made application to the Court of Quarter Sessions and became subject to the restrictions of the act "regulating boroughs," approved April 3, A. D. 1851, and thereafter by the 32d section of said act (page 327), the provisions of the former charter were annulled so far as they were in conflict with said act. By the second section of said act the powers of the corporation are vested “in the corporate officers designated in the charter." By the third section it is made the duty of the corporate officers, a majority of whom shall be a The provision of the 8th section of the Act of 1834, P. L., quorum, to meet statedly, at least once a month, 165, giving the burgess of a borough the rights of a member of the town council and the right to preside at the meetings thereof, is not inconsistent with the Act of 1851. The latter act not having designated who were the corporate officers to be elected in pursuance thereof, the Act of 1834 must be resorted to in order to determine in what officers the powers of the corporation in a borough, incorporated by the courts, are vested, and what officers are to be elected as "the corporate and within ten days after the election of any corporate officers; and it is provided that before entering upon their duties they are to take and subscribe an oath or affirmation for the faithful performance of their duties, which shall be entered upon or filed among the records of the corporation; provided, that the chief officer of the corporation, having been first duly qualified, may administer to the other officers the said oaths and affirmations. Section fifth confers on the chief burgess or other principal officer of the corporation power to enforce the ordinances, by-laws, etc.; to exercise jurisdiction in all disputes between the cor burgess, justice of the peace, auditors, high constable and school directors. poration and individuals arising under such ordinances, by-laws, etc., and to exercise the powers, jurisdiction and authority of a justice By Act of 1881, No. 9, "it shall be lawful for the of the peace within the borough for the suppres- burgess and town council of any borough in this sion of riots, tumult and disorderly meetings, Commonwealth, by resolution of the burgess Section sixth makes it the duty of the burgess and council, to authorize the collection of the or other principal officer, to preserve order, to borough tax in the manner hereafter provided.” enforce the ordinances and regulations; hear We have referred above to all the acts that complaints, remove nuisances, exact a faithful have any bearing on the question before us, experformance of the duties of the officers ap- cept the 8th section of the Act of April 1, A. D. pointed; to issue his warrant for the collection | 1834, page 165, omitted from Brightley's Purdon, of taxes assessed; to demand and receive suffi- as inconsistent with the Act of 1851, (see note, cient security from the treasurer, collector and page 2090), but which Judge BUTLER, of Chester high constable, and to sign the by-laws, rules, county, in Pierce v. Beale, 34 Leg. Intell., 243, regulations and ordinances adopted, after they held to be still in force. That section provided, shall have been duly and correctly transcribed among other things, that "it shall be the duty by the secretary. of the town council of each borough hereafter incorporated, four of whom, including the burgess, if present, shall be a quorum, to meet at such times and places as by the by-laws and ordinances of said borough shall be appointed," *** "and the meeting of said town council shall be held at such times and places as the majority of them shall appoint, and the burgess shall be president of the town council, and shall have and exercise all the rights and privileges of a member thereof; but in case of the absence of the burgess, the members present may elect one of their number to preside for the time being." Section seven provides that in the absence or inability of, or vacancy in, the office of the principal corporate officer, the second burgess, or other officer designated in the charter or bylaws, shall have the like powers and like duties. Section seventeen provides for the election, among others, of first, "The corporate officers designated in the charter or by this act.” By a singular omission, which has never been supplied, the act names no corporate officers. The intention evidently was to designate a chief burgess and a second or assistant burgess (as shown by the sections already referred to) and a town council, as such corporate officers, for by the thirteenth section "the burgess and town council of any borough" were directed and required to annex land adjacent to said borough on petition, etc. This section in its provisions, as to the laying out of streets, alleys, etc.; as to the assessments of taxes, and as to the appointment of a town clerk, is clearly inconsistent with the Act of 1851, and seems to be inconsistent with itself as well as with said act, as to the meetings of the The thirty-fourth section repeals all general town council, and we think as to such provislaws inconsistent with said act. ions was properly omitted from a digest of the general laws in force as to boroughs. At the same time we think Judge BUTLER was right in holding that the provisions of said section, as to the right of the burgess to preside at the meetings of the town council (being ex-officio presi By the Act of 1871, No. 264, section 2, the number of councilmen of a borough, where the number was then five, was increased to six, "but" the court was unauthorized, upon application, “to fix or change the charter of any borough so as to authorize the burgess or chief ex-dent thereof), and to exercise all the rights and ecutive officer thereof to serve as a member of the town council, with full powers as such and to preside at the meetings thereof." privileges of a member thereof, is in force as to boroughs incorporated under the Act of 1834, as altered and amended by the Act of 1851. As we have before observed, the Act of 1851 designates no corporate officers. The Act of 1834, in its provisions as to the election of a burgess and five councilmen, and as to the rights of a burgess as a member and president of the town council, was not inconsistent with the Act of 1851, and, indeed, must be resorted to in order to determine in what officers the powers of the corporation in a borough, incorporated by the court, are vested, and what officers shall be elected as the "cor It has not been decided whether the burgess in such a case is to be counted as one of the six members of council; the use of the disjunctive conjunction “but," as above quoted, immediately following the word "six," seems to indicate that he is to be one of the six. By the Act of May 10, 1878, Purd. Dig., 2091, section 8, where a borough is divided into wards, each ward shall elect not less than one or more than three members of borough council, and in every such borough there shall be elected by the con-porate officers.” current votes of the wards, a burgess, assistant The charter of the borough of Kittanning plainly designated its corporate officers: "The burgess and town council, duly elected, and their successors forever, shall be one body politic | and corporate in law by the name of," etc. The powers of the corporation are, therefore, by the Act of 1851, vested in said burgess and council as "the corporate officers designated in the charter." They are to meet statedly, at least once a month, and a majority shall be a quorum. Nothing is said in the act as to who shall preside at the meeting of the corporate officers; but the burgess, as the chief, and as such, the officer designated to sign the by-laws, rules and regulations as well as the ordinances adopted at such meetings, after they have been transcribed by the secretary, and to administer the oath to the other corporate officers, would seem to be entitled to that prerogative. formed into a body; as a corporate town.- Webster.) In Kittanning, Tamaqua and other boroughs, the burgess and town council were made the body corporate. In Butler, Milton and others, the burgess, assistent burgess and town council were incorporated. In Carlisle, York and other boroughs, five or more burgesses, one of whom is chief burgess, with the freeholders and inhabitants, form the corporation under the name of "The burgess and inhabitants of the borough of " No charter that we have examined makes any other officers than the burgesses and councilmen coporate officers, as we understand the term as used in the Act of 1851, but it would not be a good reason to depart from the plain words of the Act of the Assembly if such charters were found. There is nothing ambiguous in the words of the act. The connection in which the term "corporate officers" is repeatedly used in the act, seems to us to fix the meaning of the Legislature as to who shall meet and exercise the corporate powers, beyond construction as to that. Admit that the burgess or the constable even is “a corporate officer designated in the charter," and his right to meet with the other corporate officers cannot be gainsayed. As opposed to the above view, we have been referred to Commonwealth ex rel. v. Kepner, 10 Phila. Rep., 510, decided in the Common Pleas of Schuylkill county. We have examined the charter of the borough of Tamaqua, passed on inperadventure, and leaves no room for judicial that case, and find it to be substantially the same as the charter of the Kittanning borough. The voters were to elect a burgess, six councilmen | and a high constable. The burgess and town council so elected were created a body politic and corporate in law by the name of "The burgess and town council of the borough of Tamaqua," and as such, to have perpetual succession, etc. The borough became subject, as in this case, to the Act of 1851, and the court decided that the burgess was not entitled to participate in or preside at the meetings of the town council. The opinion says: "The high constable is a corporate officer, designated in the charter, and the construction contended for by the respondent's counsel would make him also a member of the town council." If, as Judge PERSHING says, "the high constable is a corporate officer, designated in the charter," we do not see how the conclusion, that he is entitled to meet with the other corporate officers and exercise the powers of the corporation under the second and third sections of the Act of 1851, can be resisted. The third section making it the duty of the corporate officers," not the town council, to meet statedly, and the second section vesting the powers of the corporation in "the corporate officers designated in the charter." But we think the high constable is not embraced in the term "corporate officers," as used in the Act of 1851; said term clearly does not mean officers of the corporation, but only those officers incorporated and made a body politic and corporate in law, or in whom the legislative power was vested. (CORPORATE, a. United; We agree with Judge BUTLER that the Act of 1871, before quoted, is entitled to little or no weight on the question before us, as so many general statutes were passed to meet real or supposed difficulties in particular cases without any inquiry as to how the law actually was on the subject. Acts of the Assembly were then about as easily procured and were often cheaper than the opinion of a good lawyer on a question that required examination and research. We have not seen the opinion in Zoomis v. Wilkesbarre, 6 Luz. L. Reg., 150, referred to in note to Purdon, page 2090; but the construction of the Act of 1851 strikes us as so plain that we don't deem it advisable to withhold this opinion; as we would be obliged to do until after the election, in order to procure it. We are of the opinion that in the borough of Kittanning, the burgess is an integral part of the legislative body of the municipality and cannot lawfully be excluded from the meetings of the corporate officers at which, as chief officer of the corporation, he is entitled to preside; and do, therefore, hold the answer of the respondent to be sufficient in law if the facts are as therein stated, and refuse the motion for a peremptory mandamus, made on the ground of the insufficiency of said answer. For respondent, J. Gilpin, Esq. HORTON v. THE CHEVINGTON AND BUNN COAL COMPANY. The manner of a judge in delivering a charge, even if reprehensible and deserving of condemnation, cannot be reached for correction in the court of review by the ordinary method of assignments of error. Error to the Court of Common Pleas of Bedford county. Opinion by GREEN, J. Filed October 5, 1882. The assignments of error in this case all relate to the charge of the court. There are none to the admission or rejection of testimony or to answers to points. In the main the complaints are rather to the manner and character of the utterances of the judge in his charge, than to erroneous statements of the law. Without doubt some portions of the charge are fairly subject | to criticism, and in several instances language used might well have been omitted or modified. After a patient examination, however, of the several assignments we have reached the conclusion that none of them are sustained by considerations sufficient to justify a reversal and the judgment will therefore be affirmed. We will dispose of the assignments in the same order as they are presented in the paper-book: First assignment.-The plaintiff gave in evidence the proceedings of the Board of Property showing the rejection of the return of survey of the ten acre warrant, and the refusal to issue a warrant on the two hundred acre application. The learned judge, speaking of these proceed ings, and of the point raised by the defendant, which was refused, remarked that the decision of the board was competent evidence, but was not conclusive. No effect upon any right of the plaintiff was given to the proceedings of the board by this remark. The full right of recovery was allowed just as if those proceedings had not taken place. In the very next sentence the court told the jury that the plaintiff' had a right to bring suit within six months and have his claim tried by a court and jury. The proceedings having been given in evidence by the plaintiff himself, it was certainly not error for the court to say they were competent evidence though not conclusive. Second assignment. This assignment is scarcely pressed and certainly has no merit. The judge merely stated an allegation that the shifting of the location in accordance with the plaintiff's theory would leave valuable land vacant and subject to be taken up at a very low price. As this would be true in fact we cannot say it was error. Third, fourth and eighteenth assignments.— The statement by the judge of the law as to the duty of the surveyor to go upon the ground and mark his survey, and of the legal presumption that he had done this, was certainly correct. It is equally correct to say that no mere assumption or guess of a surveyor is sufficient to set aside the presumption. The remark was general and was harmless if there were no assumptions or guesses in the plaintiff's testimony; but if there were it was entirely appropriate. It was not in the best taste to refer to William Piper, the original surveyor, as having been a member of Congress and of the Pennsylvania Senate, since those positions would add nothing to his qualities as a surveyor, but it is surely not error to refer, in speaking of a witness, to the fact that he has held certain offices. The court also said in the same sentence that William Piper had also held, for several years, the office of deputy surveyor, which was more to the point. What was said by the judge as to the insufficiency of theories, assumptions and guesses, to destroy the effect of a survey, and to prove mistakes in it was entirely correct in the abstract. We cannot say there was no necessity for such remarks from the court. It was undoubtedly true that an effort was made by the plaintiff to establish mistakes in the location of the Bunn warrant, by the use of certain theories and suppositions advanced by his surveyors. If these were not well founded, or if facts in the case sustained by testimony and legal presumptions were in conflict with them, the remarks of the judge were appropriate and were demanded by the occasion. If the opinions, theories or assumptions of the surveyors, were well founded, their value depended upon the facts on which they were based, and it was proper for the court to say so. The judge did not say that the plaintiff's testimony consisted of "suppositions, assumptions and guesses," but that so much of it as was of that character was insufficient to destroy the return of survey, unless supported by facts. It was the undoubted fact that Piper's return of survey to the Bunn warrant did call for the Bollman on the north, and by the same course and same distance as the southern line of the Bollman, and it was also the fact that Piper made both surveys, and at very nearly the same |