not unconstitutional. It simply subjects the action of the
court below in refusing a new trial to a review in the
appellate court, giving it authority to make such an order,
upon consideration of the testimony, as the court below
ought to have made. Smith v. Times Pub. Co., 329.
An attorney or counsellor, who is guilty of misconduct
in his office, has no right to a trial by jury upon a charge
of professional misconduct. He may be dealt with by
the court to the extent of disbarment. In re Cornelius
Smith, 361.
TRUST. No person sui juris can create a trust by
which his estate shall be settled upon himself or herself
free from liability for debts, but it may be upheld, if the
instrument creating it is intended to be irrevocable and
no rights of creditors have intervened, against the settlor
himself. (Super. Ct.) Patrick v. Smith, 4.
The cestui que trust under an active and irrevocable
trust cannot dispose of the corpus by an assignment, even
to pay a debt which might be recovered by the attachment
of the same property. Id.
S., by an irrevocable deed, in terms of a spendthrift
trust, in her own favor, conveyed all her property to P. as
trustee. R. recovered judgment against S., attached the
trust property in the hands of P. as garnishee and received
the amount of his judgment. By the exertions of M., at-
torney for S., the judgment of R. was reversed. While
the funds were still in the hands of R. attachments were
issued against it in the following order: (1) attachment
execution in favor of B.; (2) attachment execution in
favor of B.; (3) attachment execution in favor of M.
Two days before the second attachment of B., S. assigned
all the money coming to her by the reversal of R.'s judg-
ment to M., notice of which assignment was served upon
R. On the same day that the second attachment of B.
was served, but earlier in the day, R. paid the money
into court. It was admitted that the judgment on which
M.'s execution issued was to cover the same debt as the
assignment made by S. to M., namely, the amount due
to M. for his professional services in reversing the judg-
ment of R.: held, the trust deed was binding on S., and
that she had no power to assign any part of the principal
funds composing it; (2) M. had no such lien upon the
fund as would entitle him to share in the distribution of
it; (3) There being sufficient principal to meet all the at-
tachments, M. was entitled, under the doctrine of subroga-
tion, to so much of the fund as was income. Id.
A. made a devise as follows: "To my son E. the income
of the following described properties. . . . and I hereby
direct the R. company to take charge of these houses, col-
lect the rents, keep them in repair, pay the taxes, and pay
the balance therefrom in monthly payments to my son E.
for the support of himself, wife andchildren :" held, (1)
E. took a fee simple; (2) there was no devise in trust to
the R. company. (Super. Ct.) Schuldt v. Herbine, 290.
One who holds as trustee for himself, with the absolute
right to use and dispose of property, is the absolute
owner; the property is subject to the claims of his credit-
ors and the trust is executed; but where the property in
his hands is subject to controlling charges, which cannot
be complied with if the property be liable to the claims of
creditors, he has then no such absolute estate or owner-
ship as will make the property liable for his debts. Wan-
ner v. Snyder, 117.
A wife, by her will, gave her husband the interest, in-
come and profits of the residue of her estate "to have,
collect, use and enjoy the same for and during the term
of his natural life." She provided that the income should
not be liable for his debts or subject to judicial process
for payment thereof, and empowered her husband to
take possession without giving security, to receive the
principal of any securities paid off and, with the assent
of her executors, to reinvest the same. She directed that
he should educate K. until she was eighteen years of age,
that the executors should pay K. $150 annually so long
as she remained unmarried, and gave her executors a
power of sale, subject to the consent of her husband:
held, that to perform the duties imposed upon him the
husband must receive and control the entire income of
the estate, and, therefore, he had no such absolute estate
or ownership of the income as would make it liable for
his debts. Id.
A married woman may make a valid spendthrift trust
in favor of her husband. Id.
Trust funds may be followed through various conversions,
so long as their identity can be established by sufficient
and proper ear marks. (Super. Ct.) Cobson's Estate, 486.
Where money, received by a trust company as
trustee, is not kept distinct or invested in any specific
way, but is mingled with the general mass of money
on deposit and used in the general banking business,
and there is no means of tracing or ascertaining its
identity in any form or species of property, the cestui que
trust is not entitled to a preference over the general credi-
tors, in a distribution of the funds in the hands of the
assignee of such trust company. Id.
TRUST FUND. A., committee of B., a lunatic,
arranged with C., a trust company, to go on his bond,
and, in December, 1895, deposited with C., as indemnity,
the assets of the lunatic's estate, to wit, $4691, consisting
of $807.54 in cash, and the balance in securities. On
December 30, 1895, an agreement was entered into be-
tween A. and C., whereby the securities were to remain in
the custody and control of C., until the court ordered a
distribution, but sums required in administering the estate
were to be paid out on check upon an order of court.
On January 3, 1896, C. made an assignment for the ben.
efit of creditors. On April 17, 1896, the court author-
ized A. to sell a $1000 bond, and hold the proceeds sub-
ject to the order of court, and to make certain expendi-
tures for B. A. presented this order to the assignees of
C., who refused to pay, because they had no funds in their
hands earmarked with the trust, and because their books
showed simply a deposit in the name of A., as committee.
A. presented a petition praying that C.'s assignees be di-
rected to set aside the $807.54, in cash, as a trust fund, and
pay out of the same the sums directed to be paid by the
court: held, the funds of A., having been mingled with
the general funds of C., A. was not entitled to a prefer-
ence over the general creditors. (Super. Ct.) Cobson's
Estate, 486.
UNDUE INFLUENCE. There is a presump-
tion of fact that undue influence was brought to bear on
the mind of a testator who, although possessed of testa-
mentary capacity, was aged, infirm bodily, and with mental
faculties impaired, where the confidential adviser is a
large beneficiary under the will, and the burden is on
him to rebut the presumption. Miller's Estate, 397.
The condition of the mind of a testator, alleged to
have been unduly influenced, although possessed of tes-
tamentary capacity, is important in determining whether
the will was a result of the fraudulent acts practiced upon
him. Id.
USURY. A contract made in Pennsylvania to pay
money to a building association in New York, at its
office in said State, is a New York contract, and gov.
erned by the laws of said State with reference to usury,
although the payment of the money is secured by a
mortgage on land in Pennsylvania. Bennett v. Eastern
B. & L. Assn., 59.
VENDOR AND VENDEE. Where goods are WAIVER-Continued.
sold and the vendee permits them to remain in the cus- fails to keep that part of his contract, but the lessee
tody of the vendor after the time mutually agreed upon makes a large number of payments of rent after enter-
for their delivery, and they are accidentally destroyed, ing, without making any claim for a reduction on ac-
the vendee is liable to the vendor for their price as con- count of the delay in obtaining possession, he will be
tracted for. (Super. Ct.) Pittsburgh Glass Co. v. Elec- held to have waived any right which he may have had
trical Supply and Construction Co., 14.
to make such a claim. Murphy v. Marshell, 446.
Insolvency of a vendee of goods and his knowledge
of it are not, alone, such a fraud as will enable the ven-
dor to rescind the sale, after the goods have come into
the possession of the vendee. To avoid the sale there
must be artifice, trick or false pretence, as a means of
obtaining possession, bad faith and intent at the time to
defraud the vendor. (Super. Ct.) Paul v. Eurich, 455.
VENUE. When a judge is ineligible, by reason of
interest, to try a case, he may either certify to his interest,
under the Act of May 22, 1856, and direct the case to be
heard before the "president judge residing nearest the
place of such trial," or either party may petition, under
the Act of March 30, 1875, for a change of venue. These
practices are cumulative, and when either one has been
applied it is conclusive. Wallace v. Jameson, 387.
When there is a plea to the jurisdiction, setting up that
the judge is not an impartial and unprejudiced judge, and
the evidence in support thereof relates to his personal opin-
ion or feeling, and not to his legal interest in the question,
the case does not come within the Act of March 30, 1875. Id
VIEWERS. The findings of viewers on the ques-
tions of fact approved by the court should not be dis-
turbed, except for clear error. Pittsburgh v. Childs, 425.
After the authority of viewers or road jurors has ex-
pired by limitation of time it cannot be revived by an order
that they be reappointed and continued, nunc pro tunc,
so as to enable them to continue to act under the original
oath. (Super Ct.) In re Allegheny Avenue, 435.
VOLUNTEER. A mere volunteer taking a gift is
bound by the terms imposed by the donor. Hays v.
Hays, 463.
See EQUITY. Hays v. Hays, 463.
WAIVER. A waiver of any part of a contract, if
binding at all, operates by way of estoppel, and the
party claiming the waiver, must show that the words or
conduct constituting it induced his action and misled
him. (Super. Ct.) Waters v. Wolf, 38.
In a suit by an assignee of a policy of life insurance,
where the evidence is that payment had been made to
the beneficiary named in the policy upon proof, deemed
sufficient, that the policy had been mislaid, or lost, and
that the company never had notice of the assignment in
conformity with the stipulation printed on the policy,
and a waiver is averred in replication, which is sought to
be established by a letter of the secretary of the company
to the assignee of the policy, it is error to leave the con-
struction of this letter to the jury; whether it should
operate as a waiver is a question of law. Corcoran v.
Mutual Life Ins. Co., 469..
WARRANTY. Where one sells land to another,
who resells part of the same to a third person, receiving
from him, in part payment thereof, a note, which is trans-
ferred in part payment of the purchase money for the
land in the first sale, and the first grantor covenants with
the second grantee, in consideration of payment of said
note, to refund the money paid by him in its discharge,
in case the land conveyed to the first grantee is recovered
by anyone having a superior title to the same, the covenant
is in the nature of a warranty of title, and may be regarded
as a substitute for it, with a restriction of liability to the
amount paid on the faith of it, and the plaintiff is entitled
to recover in assumpsit for the loss of so much of the land
as he could have recovered in an action for the breach
of a formal warranty of title. Lehman v. Given, 273-
In such case, it is not error to charge that the plaintiff
can recover interest only from the time of payment by
him. Id.
See EVIDENCE. Wall v. Royal Society of Good Fel-
lows, 502.
WATER COMPANIES. The effect of the Act
of April 29, 1874, authorizing water companies to intro-
duce water into cities and boroughs, the municipality to
have the right to purchase the plant at the end of twenty
years, and the Act of May 23, 1874, authorizing cities
to construct their own plants for the supply of water, or
The acceptance of overdue rent by a landlord does to make contracts with any one to supply the same, and
not operate as a waiver of a stipulation, in a lease, that to give them the exclusive privilege of furnishing water
all rent reserved in the lease becomes immediately due for a fixed period, is that the city may either erect its
and payable upon default or failure for five days, on the own works or make a contract for the supply of water, it
part of the tenant, to pay any of the monthly instalments cannot, after having made a contract for such supply,
of rent. Teufel v. Rowan, 417; Rowan v Rowan, 418. proceed to erect its own works, and thereby destroy the
A. leased to B. premises for $13,000 per annum, pay-value of a water company's works, but, if it desire to go
able in advance in monthly instalments, with a provision into the business of furnishing water to its citizens, it can
that a default of five days in payment of any instalment, do so only by purchasing the works of the company on the
should cause all the rent to become immediately payable. terms provided by the Act. White v. Meadville, 102.
B.'s property on the premises was levied on by judgment The Court of Common Pleas, by virtue of its power
creditors, and sold by the sheriff. A. claimed the full bal- to pass on the reasonableness of charges made by a
ance of rent from the funds in the sheriff's hands. The water company, and to order them, if unreasonable, to
creditors resisted, on the ground that A. had waived his be decreased, cannot establish a schedule of prices to be
right, under the provision, by previously accepting overdue
rent: held, A. was not attempting to enforce a forfeiture,
but to secure the payment of a contract debt, and that his
previous failure to exact the money on the day on which it
was due,did not amount to a waiver of his contract right. Id
Under the Act of May 16, 1891, P. L. 80, while a
contract for paving may be subject to an objection as to
irregularity, if the contract be one which the city could
have authorized, it may waive such irregularity, and the
acceptance of the work is such waiver and a ratification
of the unauthorized work. Pittsburgh v. Childs, 425.
Where a lease provides that a building shall be com-
pleted and delivered on a certain day, and the lessor
charged by the company; it can simply pass on the pro-
priety of the prices fixed by the company in the first in-
stance, and order the reduction of any particular charge
found to be unjust. This reduction may be compelled
in the same manner as any other decree may be enforced.
Brymer v. Butler Water Co., 439.
A rate of charges by a water company, which does no
more than provide for the expenditures necessary in ob-
taining the water supply and a fund to maintain the
plant in good order and to pay a fair profit on the money so
invested by the owner, is neither excessive nor unjust. Id.
WATER COURSES. The Act of May 16, 1891,
P. L. 75, confers on boroughs the right to construct
drains or sewers on private property, but where an an-
cient water course, which has served as a drain, has been
closed, with the consent of the borough, it may not be
reopened for use through private property, until after the
proper proceedings in condemnation have been insti-
tuted. Strohl v. Borough of Ephrata, 154.
Under the Act of June 8, 1891, an incorporated borough
has the right to widen and deepen water courses, running
through and within the same, and to erect dykes and em-
bankments along the same. It may, therefore, prevent, by
proper proceedings, the erection of any wall or other ob
struction which will interfere with the exercise by the
borough of its rights. Commonwealth v. Stevens, 375.
WAY. An owner of agricultural land, subject to a
right of way over it, may maintain fences across such
way, if provided with suitable movable bars, or gates,
for the convenience of the owner of the way. He is not
obliged to leave it as an open way, or even to provide
swinging gates, if a reasonably convenient mode of pas-
sage is furnished, which is the case where movable bars
are used. (Super. Ct.) Kohler v. Smith, 359.
WIDOW. Poverty and ill health of a widow will
not of themselves make her ineligible as administratrix of
her husband's estate, but where she has lived apart from
her husband, has been under the influence of liquor and
was an inmate, for a time, of a reformatory institution,
there is sufficient reason for denying her administration.
(O. C.) Welsh's Estate, 167.
The right to the widow's exemption of $300 is based
on the existence of the family relations between husband
and wife, and if such relationship did not exist at his death
she is not entitled to such allowance, unless she show that
the separation was compelled by his misconduct. Id,
The effect of the acts of April 15, 1851, P. L. 674,
and April 26, 1855, P. L. 309, is not to give two distinct
rights of action for a tort where death has been the result
of an injury, but to provide that an action, if brought by
the injured person, shall not abate by the death of the
plaintiff, and that, if no action be brought by him, one
may be brought after his death by his widow or other
representative. The cause of action remains sole, and is
under the control of the injured person during his life-
time, and, if he release the wrongdoer from liability, no
action can be afterwards maintained by the widow. Hill
v. Pennsylvania R. R. Co., 221.
WILL. The validity of the execution of a will must
be determined by the law as it stood at the time of its
execution and not at the time of the death of the testator.
Packer v. Packer, 495.
A holographic paper purporting to be the will of a mar-
ried woman but invalid, at the time of its execution, for
want of witnesses, is not validated by the act of June 3,
1887, dispensing with that requirement. Id.
A. by will, gave to his wife the residue of his estate
"during her natural life," authorized her to sell the same
if she desire to do so, "put the money derived therefrom on
interest," "to use all the said interest if required for her
own subsistence," and if the interest was not sufficient
"for her own personal wants and comfort" she might take
of the principal sufficient to make her comfortable;" he
then directed that whatever was left at her decease should
be divided between his children and a grandson named:
held, this was not an absolute gift to the wife, and it was
not within her power to defeat the testator's intention re-
specting the remainder of the estate. Gross v. Stromin-
ger, 174.
A testator is never to be presumed to have intended to
die intestate, as to any part of his estate, if a contrary in-
tent may be fairly deduced from the language of the will.
(Super. Ct.) Schuldt v. Herbine, 290.
A mere direction, after a devise, that a person, other
than the devisee, shall take charge of the realty, keep it in
repair, collect the rents, etc., and pay over the balance to
the devisee, will not reduce a devise, otherwise an estate
in fee, to a devise for life only. Id.
A testatrix by will provided: "Third, I give and be-
queath to my grandson V. $1000, to be and remain in the
farm whereon I reside, to be paid to him personally when-
ever he shall come for it, but should he never come for
it, then I direct to be divided amongst my other legatees
equally hereinbefore mentioned." She also directed
that her daughter should take the farm at an appraised
value, otherwise it was to be sold and divided. The
daughter declined to take the farm and it was sold. A
claim was presented before the auditor by an assignee of
V. for the $1000 legacy. It appeared that shortly after
the death of the testatrix, V. had appeared and de-
manded the legacy from the administra or c. t. a. and
the daughter and, failing to secure it, had sold and as-
signed the same to the claimant: held, the legatee's right
to the legacy was fixed at the time of his demand and his
assignee was entitled to the same, with interest, and with-
out any deduction for auditor's fee. Martin's Estate, 295.
The members of a testator's family and the inmates of
his home are, generally, the only witnesses who have
every opportunity to observe the relations between the
maker of a will and him whose unlawful influence is
alleged to have procured it. Their interest may affect
their credibility, but it is peculiarly the province of the
jury to pass on the same.
Miller's Estate, 397.
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A bequest to the children of a deceased sister, share
and share alike, their heirs and assigns, is to the children
as a class, and will not include grandchildren of the said
sister, whose father, a son of said sister, was dead at the
time of making the will. A use of the word "assigns,'
in this connection, shows that the intention of the testa-
tor was to define the estate to be taken, and not to make a
substitutionary bequest. (Super. Ct.) Hause's Appeal, 411.
A bequest to a class, includes only those members of it
living at the time of the death of the testator. Id.
The clearly expressed purpose of a testator is not to be
overborne by modifying directions that are ambiguous
and equivocal, and justify either of two opposite inter-
pretations. Such directions are to be so construed as to
support the testator's distinctly announced main inten-
tion. Yost v. Dwelling House Ins. Co., 432.
In a case of latent ambiguity, the claimant of a legacy,
under a will, has a right to request that a court of con-
struction, in the execution of its office, shall, by means
of extrinsic evidence, place itself in the situation of the
testator, the meaning of whose language it is called
upon to declare. (Super. Ct.) Wampole's Estate, 516.
Two religious bodies owned in common, and occu-
pied alternately, a house of worship at T. W. was a
member of congregation A., had been baptized therein
when young, and had been a regular communicant there-
of and contributor thereto; with congregation B. she had
had nothing to do. By her will she gave "the remainder
of my estate, if any, to the T. church, to be used for the
general benefit of said church": held, that the will pre-
sented a case of latent ambiguity, and that the facts
above mentioned showed that the bequest was to congre
gation A. Id.
A testator provided, "and if my daughter, C., dies un-
married, her brother, R., shall have what remains of my
property, and if she marries, then her brother R., shall
pay her $1000, as her share of my estate"; held, the lan-
guage referred to a marrying, or dying unmarried, dur-
ing the testator's lifetime, and not after. Jackson's Es-
tate, 524
WITNESS. Impeachment of. See EVIDENCE.
Smith v. Hine, 402.
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