mon Pleas. These investments were $10,000 in City sixes, and $50,000 in certain mortgages. In 1873 and 1875 the trustee changed the investments, and charged $535, a commission of one per cent. on $53,500 on reinvestment of mortgages. No notice of the change of investment was given to any one, and no application to the court for its confirmation. No account was filed. In 1880, the income of the ladies having shrunk to less than half, they petitioned for a citation. An answer was filed, and after argument, the trustee was ordered to file an account, which was referred to Charles W. Beresford, Esq., as auditor.

It showed a shrinkage of income from about $3,600 to $1,650, and a loss of capital, charged at the cost of certain real estate bought in under foreclosure of mortgages, of $25,864.16. The claim of the appellees was that the trustee should be charged with this loss.

A volume of testimony was taken before the auditor, upon which he found the following facts:

That the general rule observed by trustees in Philadelphia, is to loan not more than twothirds of the actual value of the property.

That all the real estate in question was of a speculative and fluctuating character, and after its real value had been carefully estimated, not | more than one-half of such value should have been invested in mortgages.

That the mortgages were not, either at the dates of the several investments or since, safe and proper securities for the respective amounts in them.

That all the mortgages in question were what is termed advance, building or bonus mortgages. That while mortgages on individual properties of settled and fixed worth almost invariably command their par value, bonus mortgages, as a general rule, sell at a discount.

That the mortgages in question were purchased at eight, five and four per cent. discount. That the following was the value of the real estate when the investments were made:

Mascher street houses-Valuation, $2,500 each, mortgages, $2,000 each.

that it was not supervised by any other officer, nor by the directors, or the committee on finance, or any other committee.

That upon foreclosure of the mortgages the properties were conveyed by the sheriff to one of the clerks of the company, who conveyed them to the company individually, and hence the cestuis que trustent had the right of election. The auditor found that the investments were improper ones, that the trustee had not only failed to exercise ordinary diligence, but had been guilty of supine negligence in making them, and surcharged the Girard Company with the said item of $25,864.16 and interest, and further found that the costs of the audit should be paid by the trustee, as the litigation had been caused entirely by its conduct in negligently investing the trust funds and refusing or declining to file its account until compelled to do so by the court.

To this report nineteen exceptions were filed before the auditor, which were dismissed by him as not well founded. The exceptions were afterwards fully argued before the court below and dismissed, and the report confirmed.

The Girard Life Insurance and Trust Company thereupon took this appeal, assigning for error the dismissal of the exceptions and confirmation of the auditor's report.

For appellant, John J. Ridgway, Esq. Contra, Messrs. F. Carroll Brewster, Jr., and John S. Gerhard.

For those entitled in remainder, Wm. Henry Rawle, Esq.

PER CURIAM. Filed February 5, 1883.

The negligence imputed to this appellant did not arise from keeping the trust fund invested in the form in which it came into the hands of the trustee. There so strict a rule as to liability does not apply.

This is the case of a loss in investments made, after the trustee had actually received the money. A higher degree of caution and prudence is therefore required. The auditor found, as a fact, that the trustee had not only failed to exercise ordinary diligence, but had been guilty

That the examination of the real estate was made by a single officer of the company, who was not at that time competent for the purpose;

the finding. The appellant was justly held liable for the loss thereby occasioned.

Decree affirmed and appeal dismissed at the costs of the appellant.

OYSTER v. OYSTER.

the former instance we have a rule which may be followed with mathematical precision, which

a word of purchase and not of limitation, unless a contrary intent can be gathered from the will itself.

berland county.

The operative words of the clause are as follows: "I give and bequeath to my son, Simon Washington Oyster, my farm, situated in East Pennsboro', county of Cumberland, *** for his support and estate, to be and remain bequeathed to his children during their natural life."

Without reviewing the learning upon this subject, it is sufficient to say that the authorities are uniform that "children" is as certainly a word of purchase as "heirs of the body" are words of limitation: Guthrie's Appeal, 1 Wr., 9; Taylor v. Taylor, 13 P. F. Smith, 481. This is the general rule, and the exceptions which from time to time have been recognized do not | impair the rule itself. There are many instances in our State where "children" has been held to be a word of limitation, but in all of them such construction was clearly in accord with the intent of the testator, as gathered from the four corners of the will, as when "children" has been used with heirs "of the body" or "issue" as its synonyms.

This

The will before us was probably drawn by the testator himself. We have examined it in vain for anything which clearly indicates that he used the word "children" in the third clause as a word of limitation. If such intent does not clearly appear it does not appear at all for the purposes of this case, as the legal and well understood meaning of the word "children" cannot be overturned upon mere conjecture. The third clause of the will, standing alone, evinces an intent to give his son Simon the farm, for his support during his life. It is then given to his (Simon's) children during their natural lives. The gift to the children means something. It was intended to take effect in the future; the children were to take as purchasers, as a gift from the testator, and by virtue of his own power to dispose of the land. Just what estate the children take under the will is a question that does not arise in this case. There is no remainder over on failure of children, and, while this a circumstance entitled to some weight, it is not

This course of reasoning is not without force, but we think it insufficient to overturn the legal and technical meaning of the testator's language. The intent of a testator is always important in the construction of a will, where such intent can be gathered from the face of the will with reasonable certainty. But too much care cannot be exercised to avoid setting aside the expressed intention for a supposed intention. In

If upon such failure the testator intended the farm to revert to his estate, the law would convey it there as effectually as would a special direction in his will. He may have relied upon the law for this purpose, or the possibility of Simon's dying without children may never have occurred to him.

There is nothing in the remainder of the will to conflict with this view. It is true, in a single instance he uses the word "children" as the equivalent of "heirs," referring to his own children and his own heirs, in the first and second paragraphs of the will. But nowhere, in speaking of the children of his sons and daughters, does he use the word indiscriminately with heirs of the body or issue, and all of them as meaning an entire line of lineal descent: Haldeman v.

Haldeman, 4 Wright, 29, relied upon by the defendant in error, was ruled mainly upon the ground that the words referred to were so used.

While the testator may have intended the word "children" as a word of limitation, such fact does not clearly appear, and it would not be safe for us to assume it.

We are of opinion that the word "children," in the third clause of Simon Oyster's will, is a word of purchase. It follows that Simon Washington Oyster took but a life-estate in the farm which is the subject of this contention.

The judgment is reversed, and it is ordered that judgment be entered in favor of Napoleon K. Oyster, the defendant below, upon the case stated.

For plaintiff in error, S. Hepburn, Jr., Esq. Contra, John Hays, Esq.

PARDEE'S APPEAL.

Notices of claims for wages under the Act of April 9, 1872, must be given within the time limited by the Act, and must also comply with the other provisions property subject to the lien is embraced in the levy:

thereof, relating to the labor, sums due, and that the

Allison v. Johnson, 11 Norris, 314, followed.

The business of cutting saw-logs and driving them to the place of manufacture is not within the contemplation of the Act of 1872; such a construction would render the Act of June 12, 1879, unnecessary.

of the appellee and three others, on the ground that they had not given such notice as is required by the Act of April 9, 1872, for which their respective claims were based.

The contention of appellant is that none of the claims should have been sustained; because 1. The notices of claim were defective and insufficient.

2. The business in and about which the labor was performed was not such as is contemplated by the Act.

3. The work of cutting timber in which claimants were employed had ceased, and the property, represented by the fund for distribution, had been regularly and in good faith removed from the place where the labor was performed to a farm ten miles distant, and was subsequently levied on there and sold by the sheriff.

As to the first point, it has been held that the notice should set forth such facts as bring the claim within the act, so that the officer and others interested may know that the labor was performed within the time limited by the act, and in business defined therein, the sum due, and that the property, subject to the lien is embraced in the levy. It is immaterial in what form these things are set out, but it is essential that they appear: Allison v. Johnson, 11 Norris, 314.

Opinion by STERRETT, J. Filed October 2, 1882. The fund for distribution in this case was raised by the sale of personal property, consisting of horses, cattle, sheep, farming utensils, feed, etc., on an execution issued by appellant. Colbert, the defendant in the execution, had been employed by appellant and his partner, who were manufactures of lumber, to cut sawlogs on their land and run them into Lock Haven and Williamsport booms. The appellee and others were hired by him to assist in cutting and driving the logs. After finishing his winter's work, Colbert discharged his emplyees and removed his teams and personal property, used in the prosecution of the business, from the camp in the woods to his farm at Round Island, about ten miles distant. This was done in the ordinary course of business and in the utmost good faith. While thus on the farm the property was levied on and sold by the sheriff, and out of the proceeds appellee and other employees of Colbert claimed balances due them for the work in which they had been engaged. Nineteen of the claims were allowed by the auditor, but the court excluded all except that

the place where it was done, it might, perhaps, be considered sufficient, if in other respects appellee's claim was well founded.

The second point is well taken. We are clearly of opinion that the business of cutting saw-logs and driving them to the place of manufacture is not such as is contemplated by the Act of 1872. Its declared purpose is to secure money due "for labor and services rendered by any miner, mechanic, laborer or clerk from any person or persons or chartered company, employing clerks, miners, mechanics or laborers, either as owners, lessees, contractors or under-owners of any works, mines, manufactory or other business where clerks, miners or mechanics are employed." The words "works, mines, manufactory," thus employed in the act, have a definite signification, well known in general and popular acceptation. Ex vi termini, the branches of business intended to be described by them are, in a certain sense, complete and independent, and of a fixed and permanent character, as opposed to a temporary employment that is merely incidental to any particular branch of business. It will scarcely be pretended that either of these words fitly describes the business in which ap

pellant was employed. It is contended, however, that the expression "other business,” etc., is sufficiently comprehensive to embrace cutting and driving logs. Perhaps it would, if we were at liberty to construe it without reference to the context; but the preceding words, designating particular branches of business with which the idea of permanency and completeness, in a certain sense, is always associated, must control the meaning of the more general expression used in immediate connection therewith. The other business is ejusdem generis with that more particularly described by the preceding words of the context; business of the same general character, not embracing every species of employment in which the services of others may be rendered.

This construction of the act under consideration also harmonizes with subsequent legislation on the subject of labor claims. The Act of June 12, 1879, P. L., 176, entitled "An Act to enable laborers to secure and collect their pay for work done in and about the stocking of saw-logs," gives them a preferred lien on the logs "for work done in and about the cutting, peeling, skidding, hauling and driving of saw-logs" for a period not exceeding six months prior to the death of the employer, or to his assignment for the benefit of creditors, or to sale of the logs on execution process against said employer. If the Act of 1872 bears the construction contended for by appellee, the Act of 1879 was clearly a work of supererogation.

It is unnecessary to discuss the third point. Under the circumstances of this case it is also well taken.

Decree reversed at cost of the appellee, R. Patrequinn; and it is now adjudged and decreed the sum of eighty-three dollars, erroneously appropriated to the payment of his claim, be paid to the appellant.

For appellant, T. C. Hipple, Esq.

OLMSTED & BAILEY v. GERE.

Parties desiring the opinion of their opponent's witness as an expert must call him as such, and not interject

their defense by means of cross-examination. In a suit to recover damages for unskillful treatment,

causing a deformity of limb, it is error to reject the testimony of a witness which would tend to satisfy the jury that the limb was in as good a condition as could ordinarily be expected in such a case when properly treated by skillful surgeons; and such error would not be fully cured by allowing subsequent testimony from the same witness as to the effect of the general results of the same injuries when treated with

skill.

Error to the Court of Common Pleas of Susquehanna county.

Opinion by STERRETT, J. Filed October 2, 1882.

In January, 1879, the plaintiffs in error, partners in the practice of medicine and surgery, undertook to treat the defendant in error for a compound comminuted fracture of the lower third of the tibia and fibula; and after attending him professionally for about ten weeks, they were discharged. The injury, which was a very serious one of the kind, caused by his being run over by a loaded wagon, was followed by necrosis of the bone. After protracted treatment, the limb was saved, but in such a shortened and deformed condition as to partially deprive him of its use. It was contended in the court below that the plaintiffs in error were negligent and unskillful in their treatment of the injured limb, and by reason thereof it was not as fully restored as it should have been, and the personal suffering of the defendant in error was unnecessarily increased. The questions of fact thus presented were exclusively for the jury, and no complaint is made of the manner in which they were submitted; but it is claimed there was error both in the admission and rejection of testimony which had an important bearing on the questions before the jury. The specifications of error are restricted to these points. It is a sufficient answer to the first assignment to say, that the question propounded to Dr. Ainey was not proper cross-examination. He was not called or examined in chief as an expert, nor was he asked to give a professional opinion on the facts to which he testified. the defendant below had desired his opinion as an expert, they had an undoubted right to call and examine him as such; but it would have been irregular for them to interject their defense in the manner proposed. For a similar reason there was no error in the ruling complained of in the second specification.

If

The third assignment was not pressed, nor, indeed, could it have been with any prospect of success. Before the witness, Dr. Ford, was asked to give his professional opinion as to whether the fractured limb had been skillfully or unskillfully treated, he had testified that he graduated in 1860 from the College of Physicians and Surgeons in New York, and subsequently served as surgeon in the army for nearly three years; that he had examined and treated the injured limb after the plaintiffs in error were discharged from the case, and explained the condition in which he found it, etc. In view of the evidence proving his competency to testify as an expert, the court was clearly right in overruling the objection.

The fourth and fifth assignments are not sustained. The testimony complained of in the