Provident Collateral Association vs. Curran et al. with interest, etc., was, if not an actual fraud, a deception, calculated to mislead lien creditors. If the facts were as alleged by defendants, the plaintiff cannot repudiate the act of its officer and retain the benefits of his act. We do not say what the facts were, but do say that the evidence was sufficient to sustain the verdict. It would have been error to give binding instructions for plaintiff, and the motion for judgment non obstante veredicto is therefore overruled. The jury having found for defendants, upon evidence sufficient to warrant such finding, a new trial is refused. Fischer's Estate. Wills Trusts-Orphans' Court-Power to Change Terms. The Orphans' Court has the authority, where testator created a trust to be carried out in a particular way and changed conditions rendered its execution as originally planned inexpedient, to direct a different method for the purpose of raising a special fund payable to a beneficiary if alive and made known within a certain period. Petition and Answer. No. 400 September Term, 1915. O. C. Allegheny County. L. K. & S. G. Porter, for petitioners MILLER, J., December 4, 1915.--The question is whether a trust created in a particular way can be secured in a different manner for the purpose of raising a special fund, payable to a beneficiary if alive and made known within a certain period. The matter comes on at this audit in connection with a petition and answer filed at No. 167 October Term, 1915, it being agreed that the whole matter shall be disposed of at the number and term of the audit. The portion of testator's will bearing upon the questions at issue are the tenth, eleventh, twelfth and thirteenth paragraphs, and the paragraph entitled "Lastly;" these in full are as follows: "Tenth. I give and bequeath to my executors, hereinafter named, my stock in the Pittsburgh Brewing Company, both common and preferred, my stock in the Independent Brewing Company, both common and preferred, my bonds of the Independent Brewing Company, in trust for the following uses and purposes: To take and hold the same, to collect the incomes therefrom, and reinvest the said incomes as opportunity offers, and with the moneys so accumulated, including principal, purchase the ground now leased by me from the Mary E. Schenley Estate, known as Nos. 417 and 419 East Ohio Street, Pittsburgh, Pennsylvania, either at the time of the expiration of the present lease, or at any time intervening when a price for said property can be obtained which, in the judgment of said trustees, it would be advantageous for my estate to pay. The said trustees shall have full authority to sell the securities above mentioned at such time and for such price as shall be to the best interests of my estate, and to reinvest the moneys obtained from such sales. Any moneys left after purchase of said property shall become part of my residuary estate. "Eleventh. I give, devise and bequeath to my executors, hereinafter ramed, the Schenley leasehold, and the real property represented thereby when purchased under the provisions of the tenth paragraph of this my Fischer's Estate. will, in trust for the following uses and purposes: To take and hold the same, collect the rents therefrom, pay all taxes, fire insurance premiums, repairs and other charges legally assessed against the same, and after such payments have been made to set aside and hold the net proceeds or income therefrom until the sum of five thousand dollars is accumulated. When this sum is secured the said leasehold, or real estate if so converted in accordance with the tenth paragraph herein, shall be delivered to my three nephews, William A. Fischer, Harry R. Fischer and Edward Fischer, to them, their heirs and assigns forever, in equal proportions, and the trust shall end. "Twelfth. When the sum of five thousand dollars shall have accumulated, as provided for in the eleventh paragraph of this my will, the same shall be paid to my nephew, Harry Fischer, the son of my brother, Ben Fischer, if he shall appear and make himself known to my executors within five years after my death. If said Harry Fischer, son of my brother, Ben Fischer, shall not appear within five years after my death, the said sum of five thousand dollars shall be divided equally among my three nephews, William A. Fischer, Harry R. Fischer and Edward Fischer, their heirs or assigns. "Thirteenth. All the rest, residue and remainder of my estate, real, personal and mixed of whatsoever kind and wheresoever situate, I give, devise and bequeath to my nephews, William A. Fischer, Harry R. Fischer and Edward Fischer, to them, their heirs and assigns forever. "Lastly. I nominate, constitute and appoint my nephew, William R. Fischer, and the Dollar Savings Fund and Trust Company of North Side, Pittsburgh, Pennsylvania, to be the Executors and Trustees of this my last will and testament, and direct that they file no bond in either capacity." The petition is by William A. Fischer, Edward Fischer and Harry R. Fischer, the three residuary legatees named; after reciting the death of the testator, their uncle, and the paragraphs of the will above referred to, petitioners aver that the shares of stock mentioned in the will and in possession of the accountant have greatly depreciated and are depreciating in value owing to the condition of the stock and bond market; that this depreciation of the stocks set aside by decedent to purchase the property described in the will is so great as to make it impossible to carry out the provisions of the will without involving petitioners in heavy obligations to pay purchase money; that the price fixed for the leasehold described is $20,000; that the value of the stocks at present would necessitate the petitioners giving a mortgage in at least the sum of $10,000, and that it would not be possible to comply with the provisions of the will in the purchase of the leasehold described and in addition raise from the income thereof the fund required to pay the legacy to Harry Fischer, should he be alive and make himself known at the expiration of the period. The petitioners pray that this fund be permitted to be raised or secured upon bond given by them to raise or have on hand the five thousand dollars in the hands of the executor in case said Harry Fischer appears at the time stipulated; they pray further that present distribution be made of the bonds and stocks held in trust and that the leasehold may be assigned by the executors to the petitioners. The answer of the executors admits all the averments of the petition and they are, therefore, accepted as facts. It does not join in the prayer, but it does appear from the executors and their counsel at bar that they have no objection to the relief sought, provided they are amply secured and will have on hand in case of the appearance of Harry Fischer the amount of the legacy to which he is entitled. In connection with the proceedings as above outlined, the trustees of the Schenley Estate, owning the leasehold property, certify that there is no parol agreement enforcible at law against Fischer's Estate. the estate of William R. Fischer for the purchase of the leasehold described in these proceedings. There is also a formal declination of the three residuary legatees to accept the provisions of the will as contained in the eleventh and twelfth paragraphs whereby they or the executors of the estate for them should become the purchasers of the leasehold mentioned and they elect in lieu thereof to take the bonds and stocks set forth in the will and in the account. There is also a resignation of William A. Fischer, one of the executors named in the will. The three residuary legatees are sui juris; no other parties are interested in the devise to them of the Schenley leasehold property conditioned upon its purchase as set forth by the testator; they are not bound to accept this provision, and their renunciation cannot be objected to by anyone else. No other party is interested who has not been provided for save the absent Harry R. Fischer; he is interested only to the extent of his legacy of five thousand dollars, provided he is alive, appears and makes himself known within five years from the testator's death. The evidence is that he has been unheard from since his disappearance. Under the facts as herein outlined there can be no objection to the granting of the prayer of the petition, provided bond, with ample security, to be approved by the Court, be given by the residuary legatees. Let there be incorporated in the decree for distribution a recital of the declination of the residuary legatees to take under the decedent's will as touching the leasehold property, with a direction to the executors to distribute the residuary estate in kind among the residuary legatees in lieu of the acceptance by them of the provisions relating to the leasehold; further, directing the surviving executor, whose associate executor's resignation shall be accepted, to assign the leasehold estate to the residuary legatees, upon bond being given in the sum of seven thousand dollars, with sureties to be approved by the Court, conditioned upon the payment of the sum of five thousand. dollars to Harry Fischer when he appears and makes himself known within the period limited by the testator. Miller vs. Pittsburgh Railways Company. Negligence-Automobile -Collision With Street Car-Judgment N. O. V. In an action for personal injuries due to a collision between an automobile and a street car, and a verdict was returned for plaintiff, judgment non obstante veredicto was entered in favor of the defendant on the ground of contributory negligence in that the evidence proved that plaintiff's chauffeur could have seen the street car approaching had he looked before driving on the tracks at the intersecting streets, and there was no evidence as to the speed of either vehicle. Sur Motion for Judgment in Favor of Defendant Non Obstante Veredicto. No. 1044 July Term, 1913. C. P. Allegheny County. T. M. & R. P. Marshall, for plaintiff. Burleigh & Challener, for defendant. HAYMAKER, J., May 4, 1916.-This is an action in trespass to recover the cost of repairing an automobile damaged by the alleged negligence of the defendant in operating a car. A verdict was found for the plaintiff. The defendant offered no testimony, but put a point for binding instructions in its favor. The defendant has a single track on Swissvale Avenue, a street about twenty feet wide, in the Borough of Wilkinsburg; and that avenue runs north and south. The street cars run only southwardly. South Avenue runs east and west and crosses Swissvale Avenue. The collision occurred at the intersection of those two highways as the automobile was traveling westwardly on South Avenue. The machine was driven by plaintiff's chauffeur, who was the only witness that described the accident. There was no evidence as to the speed of either vehicle. A dwelling house, built flush with the pavement, on the northeast corner, formed by the intersection of those two avenues, obscured the chauffeur's vision in the direction of the approaching car on Swissvale Avenue, as he was traveling along South Avenue. What occurred when he reached the corner appears in his testimony: "Direct examination: Q. What did you do as you got to the corner? A. As I got to the corner I glanced up the street towards the direction the street car would be coming and I glanced down and saw none and went on. * * Cross-examination: Q. And you glanced up then and did not see any car? A. I didn't see no street car. Q. And you kept on going? A. Kept on going. Q. Straight across? A. Yes, sir. Q. When did you next see the car? A. I didn't see it; I felt it striking my automobile. Q. The first you saw it was when it hit your automobile? A. * Q. How far were you from the nearest rail when you glanced up the street? A. Twelve feet." The witness did not pretend to say that he could not have seen the car had he looked before reaching the track. If he did not see it coming when he was twelve feet from the track it was simply because he did not Miller vs. Pittsburgh Railways Company. look. To wait until he was within twelve feet of the track before looking, when he could have seen the car had he looked earlier, and that, too, without pretending to say that he had his car in control when he did look, clearly shows that he was guilty of contributory negligence, and the plaintiff can not recover. The motion is allowed, and judgment is now entered for the defendant non obstante veredicto. Wills Pinkerton's Estate. -Direction to Sell Real Estate-Conversion-Interest on Legacy. A demonstrative legacy, where there is positive direction to sell real estate one year after death, draws interest from that date, and the contention that because the property was not sold the legacy should not draw interest is unsound. Exceptions. No. 80 November Term, 1915. O. C. Allegheny County. George H. Quaill, for accountant. TRIMBLE, J., December 4, 1915.-Before the decedent died he executed his last wili and testament, which is now before the court for interpretation. In the third paragraph he said: "I will the whole property be sold one year after we are both dead and Divid as follows. I will my son Isaac S. Pinkerton one thousand dollars out of the proceeds of the sale of the farm." And the fifth paragraph is: "I will that the balance of the proceeds of the money for which the property is sold Be equally Divided Between my four children as follows, * * Isaac S. Pinkerton has assigned his legacy as security for some of his debts, and the assignee claims that the legacy in the third paragraph is payable with interest from one year after the date of the death of the testator prior to the payment of the legacies set forth in the fifth paragraph, and the other legatees claim that because the land was not sold within the time fixed by the terms of the will that the interest does not begin to run until the land was sold. The legacy in the third paragraph is demonstrative; the direction to sell was positive, and failure to sell in accordance with the directions cannot be held out as an excuse for the non-payment of the interest. The legatee was entitled to his money at the time fixed by the will and when it was not paid the interest began to run. The other legatees had a right to insist upon a sale in accordance with the terms of the will and if they had done so they would have prevented the accumulation of the interest on the legacy in the third paragraph. There was a conversion here, and in reality this legacy is payable from the personalty, and when no time is fixed for the payment of interest on such a legacy as we have here it begins to run at the expiration of one year from the death of the testator: Act of February 24, 1834, Section 51. Those who contend that this is an erroneous view are only entitled to "the balance of the proceeds of the money for which the property is sold." It necessarily follows that the first legacy with interest must be paid and the balance, if any, distributed to those named in the will who are entitled to receive it. The authorities supporting this view are Martin vs. Martin, 6 Watts, 67; Laporte vs. Bishop, 23 Pa., 153, and Koonis and Wright's Appeal, 113 Pa., 621. |