pened to her by reason of the street being out of repair. The statute which requires the company to keep the streets in repair imposes no pecuniary liability upon the company to a party injured, whatever may be its effect as to the municipality. Phila, and Reading R. R. v. Ervin, 8 Nor. 71. I. Newton Brown, for plaintiff, contra, cited, Act 10 April, 1858 (P. L. 240), incorporating the company, and City Ordinances of April 1, 1859 (Ordinances, p. 138), and of May 6, 1876 (Ibid. p. 98), as to the obligation of the company to keep the streets in repair. The evidence does not make out a case coming under the Act of 1855, as construed in D'Arros's Appeal, WEEKLY NOTES, 125. January 22d, 1881. THE COURT. By the Act of Assembly of April 10th, 1858 (P. L. 240), incorporating said company, "it is provided that the company shall keep the streets and avenues traversed by the said railway in perpetual good repair, at their own expense." This is the usual stipulation in the railway Acts of incorporation of this city, and obliges the company to maintain the highway in safe repair its whole width, from curb to curb, and in fact this company did construct this gutter and covering agreeably to the ordinance of Counsels, and under the supervision and plan of the Commissioner of Highways. For any defect in the plan or mode of construction the company are not liable, but, constructed as it is, they are bound to keep it in proper order and repair and safe for travel. Of course the company should be allowed a reasonable time, in case of its becoming out of repair or deranged, to restore it to its proper condition. What would be a reasonable time, under the circumstances, would be a question for the jury. That the jury have passed upon, and the remaining question is whether, by the release signed by plaintiff without the joinder of her husband, she is estopped in her action. It has been determined, in R. R. v. Burson (11 Sm. 369), that a release by a married woman, her husband not joining, of land damages, was void. In this case it is but her chose in action, but as she could not sue or recover without the joinder of her husband, therefore she cannot release. In Black v. Tricker (9 Sm. 13), it is held that where the circumstances mentioned in the Act of February 22d, 1718, and the Act of May 5th, 1855, have been established in any controversy in the ordinary way by proofs, the privilege of being a feme sole trader results to the married woman. It has been contended, in argument before us, that, as the plaintiff at the time was separated from her husband, and supporting herself and family, she was entitled to the damages happening to her, and, being so I entitled, could release them by a written instru ment, under seal, and thus bar her action within the ruling of the case last cited. In this case the evidence was simply the testimony of the plaintiff, who said: "I have not always gone by the name of Mayberry. He was my second husband. I sometimes signed my name just as it came handy. At other times I signed my name Hague. This was my first husband's name. was not living with Mr. Mayberry on August 24, 1878; have not been living with him for six or seven years up to the present time. I only lived with him four months from the day we were married. I was married to him on the 10th day of November, 1873. After I left him I supported myself. In these four years he did not support me at all: went mostly by the name of Hague." This does not make out a case within the Act of Assembly cited, for a simple failure to support the wife, without drunkenness or other cause, will not deprive the husband of his right to the wife's personal property on her death without issue. (See D'Arros's Appeal, 7 W. N. C. 125.) There must be a desertion or a neglect or refusal on the part of the husband-something that involves the wilful non-performance of a duty on his part. (King v. Thompson, 8 W. N. C. 241.) Here there is no evidence of desertion by the husband, and for aught that appears, they may have agreed amicably to separate, or in fact the wife may have deserted the husband. Unless the evidence shows that the wife would be entitled to a decree as a feme sole trader, she cannot be regarded within the benefits of the Act, and her release, therefore, cannot amount to an estoppel. It is evidence against her as a declaration of what she estimated her damages at the time, and as against her oral testimony upon the subject matter, and for such purpose it was admitted. There was some evidence in the cause affecting the bona fides of the release, which the verdict also settles in favor of the plaintiff, which, irrespective of the legal questions involved, might determine the cause. Upon the whole, we see no reason to disturb the verdict, and the rule for a new trial is discharged. Opinion by ELCOCK, J. Decedent's estate-Distribution-Surcharge of executors-Issue to try validity of voluntary conveyance to wife (and executrix) alleged to be fraudulent as to subsequent creditors-When not granted-Effect on fraudulent conveyance of grantor's discharge in bunkruptcy-Limi tations. Sur exceptions to the report of an auditor recommending that an issue be awarded. The account of Elizabeth Connell, widow of the decedent, and C. C. Haffelfinger, executors of George Connell, deceased, was referred by agreement to an auditor to audit and report distribution of the balance, before whom evidence was submitted, tending to show the following facts: F. P. Prichard and A. M. Burton, contra. Subsequent creditors can always impeach a voluntary conveyance intended to defraud them. And such fraudulent intent is sufficiently shown, under the authorities, to warrant an issue in this case, by the following facts, viz.: total insolvency at the time of the conveyance; want of consideration; the property was all the grantor's estate; a secret trust for future, as well as alleged existing indebtedness; no reconveyance to the wife until after the grantor's death. Bump on Fraud. Conv. 327, 83-84. Ridgeway v. Underwood, 4 W. C. C. R. 129. Thomson v. Dougherty, 12 S. & R. 448. The failure of the assignee in bankruptcy to impeach the deed does not conclude us, as the secret trust was a continuing one, and void as against future creditors. The discharge of prior debts cannot affect the question here raised, which is whether the property is that of the decedent's estate, with which the accountant shall be surcharged. See Elliott's Appeal, 14 Wr. 75. Crunkleton v. Wilson, I Browne, 361. November 27, 1880. THE COURT. To what extent a voluntary conveyance may be attacked by subsequent creditors, has been very elaborately considered by the Supreme Court, in the recent case of Harlan v. Maglaughlin (37 Legal Intelligencer, 16; reported ante, p. 353.) In 1862 the said George Connell, being insolvent, for the purpose of defeating creditors, conveyed, for a nominal consideration, certain real and personal estate, being all his property, to one Pennock, who executed a declaration of trust, not recorded, to the effect that he held the same as security for present and future indebtedness of Connell to him, and, as to the excess, in favor of the grantor's wife. Connell became a bankrupt in 1868, and was discharged in 1869. He died in 1871, and in 1872 Pennock conveyed the property to his widow. Both before and since the decedent's death, Mrs. Connell received large sums of money, being the proceeds of sales of parts of the property so conveyed. Before the auditor, one Watts claimed pay-parties now asking for them, who did not bement of a judgment obtained by him against the decedent in his lifetime, in 1869, after the discharge in bankruptcy, and, the fund being insufficient, he alleged that the said voluntary conveyance of 1862 was fraudulent and void as to him, and that the property and proceeds held by the widow, one of the accountants, was property of the decedent's estate, with which she should be surcharged. At his request, the auditor filed a report recommending that an issue be awarded to try, substantially, the validity of the said conveyance of 1862, to which report the accountants excepted. John G. Johnson, for the exceptants. Even if subsequent creditors could impeach the deed, which they cannot, they are concluded by the discharge in bankruptcy. The assignee alone could have inquired into its validity. Under the principles thus enunciated, it is, perhaps, not easy to see how issues can be awarded in the present case at the instance of the come creditors of the decedent until long after the date of the conveyances which they seek to impeach, and who have shown no fact, certainly none stronger than in Snyder v. Christ (3 Wr. 400), indicating an intention to commit a fraud against them. We need not, however, inquire whether it would not be possible to distinguish the case before us from the authorities referred to, because an insuperable obstacle in the way of the subsequent creditors is found in the proceedings in bankruptcy which followed the conveyance and preceded the creation of the indebtedness now existing. Under the Bankrupt Act of 1867, § 14 (Revised Statutes, § 5046), it was expressly provided that "All property conveyed by the bankrupt in fraud of his creditors, all rights in equity all debts due him or any person for his use, and all liens and securities therefor, and all his rights of action for property or estate, real or personal and all his rights of redeeming such property or estate, together with the like right, title, power, and authority to sell, manage, dispose of, sue for and recover or defend the same, as the bankrupt might have had if no assignment had been made, shall, in virtue of the adjudication of bankruptcy and the appointment of his assignee, be at once vested in such assignee.' The property and rights thus vested in the assignee became a fund for the payment of the debts of the bankrupt then existing, the debts which, so far as concerns after-acquired property, were discharged by the discharge granted to the debtor under the proceedings in bankruptcy. The fund belongs exclusively to them, and neither in whole nor in part can it be diverted from them. It is clear, therefore, even if it be conceded that the conveyances made, directly or indirectly, by the decedent to the accountant, his wife, were expressly designed to defraud future as well as existing creditors, that those who did not become creditors at all until after the bankruptcy, and who, therefore, can have no interest in the property conveyed, have no right to inquire into the transaction. Such right can only be exercised by the assignee, and that for the benefit of the then existing creditors. Rankin's Estate. Dec. 21, 1880. Accounts of executors and administrators-Statement of principal and income to be separateAllowance for stating an account— When counsel fee allowed to executors and trustees in an issue devisavit vel non-Duty of executors to require indemnity for costs and expenses of litigation from parties interested in maintaining the will. Sur exceptions to adjudication. At the audit of the account of the executors and trustees of Eleanor Rankin, deceased, before ASHMAN, J., the following facts appeared: By her will the decedent devised to her sons, Abraham G. M. Rankin and Alexander M. Rankin, the dwelling-house in which she resided at the time of her decease. All the residue of her estate she devised to her executors in trust to pay over the income to her daughters, Marcella F. Rankin and Ellen F. Rankin, making certain provisions in case of their death or marriage. The daughters contested the validity of this will, and offered for probate a will of prior date, which they contended had been republished after the date of the instrument in question. An Examiner was appointed, and the executors and trustees retained counsel to sustain the will. In their account the accountants claimed credit for a counsel fee of $500, for legal expenses in maintaining the will. Credit was also claimed That the assignee did not, within two years for a counsel fee of $100, for services in connecafter the property or right of action vested in tion with the audit, and $15 for preparing the him, bring suit to enforce his right, cannot avail account. In regard to these claims the Auditing subsequent creditors or confer the right upon Judge found that the executors must be surthem. The provision in the Act, that, if the charged with the counsel fee of $500, as the exproperty was held by one claiming adversely, the pense of the contest must be borne by those inassignee shall be barred in two years if he shall terested in the issue. He also reduced the credit not bring suit, was intended, like all other stat- of $100 for services in connection with the audit utes of limitation, for the purposes of quiet and to $50, and disallowed the claim of $15 for prerepose. As the right of action was vested ex-paring the account, surcharging the executors in clusively in the assignee, if he should not exercise it, the title of the person holding adversely becomes absolute as against the world, just as in the case of real estate held adversely against the real owner for twenty-one years. (See Munshower v. Patton, 10 S. & R. 334.) Certainly the bankrupt could not afterwards assert ownership, and his subsequent creditors must claim through him. On the other hand, if the property has not been held adversely, the assignee has not been barred, and he alone can assert ownership or maintain a suit. We therefore sustain the exceptions to the Auditor's report, and decree accordingly. Opinion by PENROSE, J. the amount of $565. To this finding exceptions were filed on behalf of the daughters. H. M. Dechert, for exceptants. Costs accrued in proceedings to maintain a will, which result successfully, and in defending the interests of the estate, are a proper credit in the account of the executor. Sterrett's Appeal, 2 Pa. R. 426. Price's Est., Martin's Appeal, 3 W. N. C. 320. J. R. Welsh and Zane, contra. Dec. 31, 1880. THE COURT. The first error apparent upon the face of the account is in com bining principal and income in one account. | tate with the expenses of an issue to try the validity They should always be separated. The labor of of a will (Dietrich's Account, 2 Watts, 332). both Auditing Judge and counsel would thus be But the rule of law so well settled is inapplilessened, and the condition of the estate and its cable to the present case. Here the contestants management by the accountants rendered intel-were the cestuis que trust, and the proponents of ligible to the parties interested. . . . It is also erro- the will both executors and trustees. They were neous to claim a credit for preparing the account, made respondents by the act of the cestuis que when the same was prepared by the trustee per- trust, in their effort to destroy the trust declared sonally, himself a member of the bar. It is by testatrix, and it became their duty to defend usual for a reasonable allowance to be made to and uphold the will. This they did, not merely an executor, administrator, or other trustee, who as executors, but as testamentary trustees, and is unable to state his account by reason of un- were successful. In such case we think the familiarity with bookkeeping or accounting, and estate should justly pay the expenses incurred. In is consequently obliged to employ another to per- Landis' Estate, supra, THOMPSON, P. J., says, form that duty, but never where he undertakes the inter alia: "An executor cannot claim the exclerical or professional labor himself. It is a part penses of such a proceeding, unless, in endeavof his duty to keep a book or books, showing the oring to sustain the will, he acts for the benefit receipts and expenditures of the estate, and to of the estate. If it is of no advantage to the prepare his account personally, unless from the estate or to those entitled to the fund that such unusual labor and skill required he would be jus- litigation should be carried on, the executor tified in employing an accountant or bookkeeper. cannot claim allowance in hisaccount for expenses And it is always presumed that the commissions so incurred. If the executor acts to sustain a or compensation granted by the Court is in part trust, and is successful, his expenses would be a recompense for whatever clerical labor may be fairly chargeable upon the trust fund; but where thus rendered. This item of credit must be dis- no such fund exists, and the supposed trust is a allowed. nullity, the real owners of the estate cannot be made liable." This exception is sustained. The first exception is in disallowing a credit claimed for five hundred dollars, paid to the In addition to the above expenditure for the counsel of accountants for professional services services of counsel in the appeal from the Regisin successfully resisting an appeal by the cestuis ter, the accountants also ask an allowance of que trust, from the decision of the Register, in one hundred dollars for the advice and services admitting to probate the will of testatrix. In view of counsel during the continuance of the trust, of the long-continued contest, and the services and rendered in the settlement and adjudication performed by counsel both before the Examiner of their account. The trust extended through a and the Court, and upon comparison with the period of more than five years prior to the filing amount expended by the contestants for services of the account, and is still continuing. During of counsel in their behalf, the Auditing Judge all this time, from the character of the trust estate, concludes that the sum paid by accountants for mainly realty, and the litigious and hostile disprofessional services in upholding the will, is not position and attitude of the cestuis que trust, it excessive, but disallows the expenditure as an frequently became necessary for the trustees to improper credit, for the reason that the expenses consult counsel to aid them in the care and manof the contest should have been borne by the par-agement of the estate. Then, upon the filing ties immediately interested in the issue. That of the account, the trustees were met with objecthe accountants as executors were mere stake-tions and attempts to surcharge, which have been holders, and their duty, before taking part in the found without foundation. These hearings before contest, was to call upon the parties interested in the establishment of the will, to indemnify them against the costs and expenses to which they might be subjected. This view of the law is entirely correct, and fully sustained by the authorities, among which may be cited Mumper's Appeal (3 W. & S. 441), Geddis's Appeal (9 Watts, 284), Royer's Appeal (13 Penna. St. Rep. 569), and Landis's Estate (1 Phila. Rep. 528). And an administrator pendente lite cannot charge the es the Auditing Judge and the Court all required the labor and services of counsel, and for which no additional compensation is requested. We therefore think that the allowance asked by the trustees is reasonable and proper. This exception also is sustained. The adjudication is re-committed for correction, in accordance with this opinion. Opinion by HANNA, P. J. WEEKLY NOTES OF CASES. witness had his coat off when the two were talking together. Three or four days after this conversation the witness, upon putting on his coat, found a package in his coat pocket, which he VOL. IX.] THURSDAY, FEB. 10, 1881. [No. 25. believed was the same package that Stabler had Merely delivering poison to a person, and soliciting him to place it in the spring of another, is not an "attempt to administer poison" to the latter, within the meaning of the 82d section of the Act of March 31, 1860 (Purd. Dig. 340, pl. 128). The Act recognizes a distinction between intent and attempt. Error to the Quarter Sessions of Allegheny County. Indictment of Alois Stabler. The first count charged that the defendant, on the 3d day of July, 1879, etc., "feloniously did attempt to administer a certain poison, commonly called Paris green, etc., to one Richard F. Waring, with intent to commit the crime of murder, and to feloniously kill and murder the said Richard F. Waring," etc. The sixth count charged that the defendant solicited one John Neyer, a servant of the said Richard F. Waring, to administer a certain poison, etc., to the said Waring, The defendant was convicted on both counts. No complaint was made of the conviction under the sixth count. etc. There having been no official notes of testimony taken on the trial of the case in the Court below, it was agreed by counsel that the Supreme Court shall treat the following as being all the testimony bearing on the first count of the indictment. "The only witness sworn was John Neyer, who testified, that he had a conversation with Alois Stabler, over a year before the information was made against him, in which Stabler stated his grievance against Waring, and stated his (Stabler's) determination to be revenged, and then solicited Neyer to put poison in Waring's spring, so that he and his family would be poisoned, and offered the witness a reward therefor, and gave him directions how to administer the poison, and gave him the poison to administer. That the witness refused to administer the poison, and said he would not have anything to do with it, and handed the poison back to Stabler. That the handed him. That the witness shortly after left the city of Pittsburgh and went to Toledo, Ohio, where he remained several months. That he again returned to Pittsburgh, about a year after the conversation with Stabler, and then, for the first time, told a party about what had taken place, and handed this party the package of poison. "That the witness never had any intention of administering the poison, and never did anything towards it, and never had any other conversation with Stabler about the matter except the one stated." The Court, EWING, J., charged that if the jury believed the evidence of John Neyer, in substance as above given, it constituted an attempt, and they might find the defendant guilty on the first count. The jury found a verdict of guilty on both counts. The defendant moved for a new trial and in arrest of judgment, which motion was overruled by the Court, and separate sentences were pronounced. The defendant took this writ, assigning for error, inter alia, the charge of the Court, that the testimony of Neyer was sufficient to sustain a verdict of guilty on the first count. W. C. Moreland (N. C. Cook with him), for plaintiff in error. An attempt to commit a crime is an endeavor to accomplish it, carried beyond mere preparation, but falling short of the ultimate design. Acts, directly tending to the end in view, are necessary to constitute an attempt. Mere intent is not enough. Kelly v. Commonwealth, I Grant, 488. The proof in this case does not sustain the' allegation. The Act of 1860, § 82 (P. L. 403), under which the indictment is drawn, follows the Stat. of 1 Vic., c. 85, sec. 3, which has been construed as we now contend in Regina v. Williams & Rees, 1 Car. & Kirwan, 589; S. C., I Denison's Crown Cases, 40, Where a foreign statute agrees with our own, ' a judicial construction of the former will have weight in construing the latter. The case of People v. Bush (4 Hill, 134), on which the Court below relied, was decided on a statute of New York, differing materially in some of its language from the Act of 1860. John S. Robb, District Attorney, contra. October 15, 1880. THE COURT. This indictment contains six counts. A conviction was had on the first and sixth, and sentence was pronounced on each separately. The first charged a felonious attempt to administer poison to one |