titled "An Act relating to common schools of] that the learned Judge was mistaken in this, and the borough of Easton." By virtue of the Act of April 6, 1870, entitled "An Act supplementary to an Act incorporating the borough of Easton, in the county of Northampton," and the Act of March 6, 1873, entitled "An act supplementary to an Act incorporating the borough of Easton, etc.," the borough treasurer of the borough of Easton was ex officio school treasurer and received an annual compensation from said school district, as is provided in said Acts. James McCauley, the plaintiff above named, was elected city treasurer of the city of Easton on the third Tuesday of February, 1887, and assumed the duties of said office on the first Monday of April of said year. The said school district adopted a resolution directing the said city treasurer to act as treasurer of the school district. The said plaintiff gave bonds to said school district conditioned upon the faithful discharge of his duties as school treasurer, and has since performed the duties of said office, for which service he has received no compensation from said school district. If the Court be of opinion that the said plaintiff is entitled to compensation from the said defendant, as treasurer of said school district, then judgment to be entered for the plaintiff in the sum of four hundred and fifty dollars, but if not, judgment to be entered for the defendant; the costs to follow the judgment therein, and either party reserving the right to sue out a writ of error therein. The Court entered judgment in favor of the plaintiff Rothrock for $200 and in favor of the plaintiff McCauley for $450; whereupon the school district took these appeals, assigning for error the entries of the foregoing judgments. William Mutchler, for appellant. Aaron Goldsmith, for appellees. ROTHROCK v. SCHOOL DISTRICT. March 24, 1890. THE COURT. It appears from the case stated that the School District of the Borough of Easton did not accept the Act of May 23, 1874, providing for the public schools, but continued to act under the special law of March 22, 1866, entitled "An Act relating to common schools of the borough of Easton" (P. L. 287). It also appears that by virtue of the several other Acts referred to in the case stated the said school district had the power to appoint an auditor or auditors to examine the accounts of the treasurer. The learned Judge below states in his opinion that "the special Act provides that the auditor shall be compensated for his services." It was contended by the appellant The that all of the Acts referred to omit any reference to compensation from the school district. This is certainly so as to the Act of 1866. other Acts I have not examined as they are not considered to have any bearing upon the question now before us. The city of Easton is a city of the third class, incorporated under the Act of 1874. The councils of said city on April 12, 1887, enacted an ordinance fixing the compensation of the city controller. Henry A. Rothrock, the plaintiff above named, was duly elected controller, and entered upon the duties of his office on the first Monday of April, 1887. He declined to act as controller or auditor of the school district, whereupon the board of school directors passed a resolution declaring that it was his duty as city controller to audit said accounts. In pursuance or obedience to this resolution the plaintiff proceeded to audit the accounts of the school district, and this suit was brought to recover compensation therefor. When a public officer claims a salary, fees, or compensation for services rendered to the public, he must show an Act of Assembly giving it. If he cannot show such Act he cannot recover. The plaintiff's compensation as city controller was fixed by ordinance of councils. As controller he is entitled to the compensation thus fixed and nothing more. But it was urged he was also auditor for the school board and is entitled to compensation for services in that capacity. If we concede the facts we might possibly concede the inference drawn from them by appellant. But he was never elected or appointed auditor for the school district. Instead of electing him auditor, the contention of the school board was that as city controller it was his duty to audit the accounts of the school district, and he acquiesced in that view so far as to audit said accounts. It is manifest that he never held the independent office of auditor of the school district, and it follows logically that he cannot claim compensation for performing the duties of an office which he never filled. We are not called upon to inquire, therefore, what, if any, compensation a duly elected auditor would have been entitled to claim. The judgment is reversed and judgment is now entered in favor of defendant. MCCAULEY v. SCHOOL DISTRICT. March 24, 1890. THE COURT. This case is ruled by Scranton School District v. Simpson, decided at this term, where it was held, that, inasmuch as the city treasurer was made by the Act of 1874 ex officio treasurer of the school district, and took a separate oath and gave bond to the school district he held two separate and in dependent offices, and was entitled to compensa- credit for the whole of said interest paid the tion for each, unless his compensation as school widow, and for further sums paid her out of the treasurer had been taken away by an Act of principal. Exceptions to this account were filed Assembly. by said John S., and Samuel Markley, but not disposed of. Subsequently the widow died, and on May 5, 1888, the executor filed a final account, in which he claimed credit for the whole of the principal and interest which he had paid the widow. Exceptions were again filed by said John S. and Samuel Markley, and the accounts referred to Louis M. Childs, Esq., as Auditor. Before the Auditor it appeared that the widow had expended $600 for cattle, $900 for wages due the accountant for work on the farm and the rest of the money for other wages, taxes, and various farm implements and improvements. The Auditor having disposed of other quesWills-Life estate in personal property-Power tions not now material and having found that the of life-tenant to consume the personalty. principal had been expended by the widow in a When a testator bequeathed all his property, real, proper manner provided it was her money to expersonal, and mixed to his wife for life, and directed pend, further held that the widow took only a that at her death the residue should go to his children, life interest under the will in the personal estate, and it appeared that a considerable portion of the and that therefore the accountant should be surpersonalty consisted of crops, farm stock, and imple-charged with all of the payments of principal ments, the use of which implied their consumption, it was to be inferred that the testator intended that the wife should take the whole personalty absolutely, if needed for her support, and his executor was properly allowed credit in his account for moneys paid out of the principal to the widow and consumed by her for her support, though thereby the whole of the person alty was exhausted. made by him to the widow. The executor filed exceptions to the report, on the ground, inter alia, that the Auditor erred in his construction of decedent's will, and in finding a balance due the estate when the evidence showed that nothing was due, all of the personalty having been paid over to the widow in her Appeal of John S. Markley and Samuel Mark-lifetime as her necessities required in accordance ley, two of the residuary legatees of Christopher with decedent's will. Markley, deceased, from a decree of the Orphans' Court of Montgomery County making distribu tion of the said estate. These exceptions were sustained by the Court, SWARTZ, P. J., in an opinion wherein he said, inter alia: The facts of the case were as follows: Chris"The testator provided first for his widow, she topher Markley died in 1864, leaving the follow-was the object of his bounty, he gives her all his ing will: I give, devise, and bequeath unto my beloved wife Elizabeth, formerly Elizabeth Stanley, all my property and effects, real, personal, and mixed of whatever nature and kind, for and during her natural life. It is my will, and I hereby order and direct that at the death of my wife Elizabeth all of the residue of said property, real, personal, and mixed, shall go to my children, John S., Samuel, and George P. Markley, and to their heirs, in equal shares, absolutely. And I hereby appoint my son George P. Markley my executor. property and effects of whatsoever nature and kind, not merely the income of the property. No provision of any kind is made for the other legatees, to take effect during her life. The personalty consisted in great part of crops, stock on the farm and farming implements; these she took under the will just as the testator left them at his death, and they were of such a character that their use, even for a limited period, constituted consumption. "The estate was not large, and the testator in his care for her as the first object of his bounty no doubt considered the income insufficient for her comfortable support. The fact is, that it was not sufficient, for during the many years that she survived the testator it was found necessary to convey almost the entire personal estate for her proper maintenance. This will was duly proved after testator's death, and letters testamentary granted thereon to the executor named. The testator died seised of a farm, and possessed of bonds, notes, and cash, amounting to $3000, and stock on farm, and other chattels, valued at $2000. In 1868 the executor filed his first account, wherein it appeared, inter alia, that he had moneys at interest "The word 'residue' as used by the testator amounting to $2400. In 1878 he filed a second implies the right of consumption of the principal account, wherein he charged himself with by the widow. The word received this construcsaid $2400 and interest thereon, and claimed tion in Jauretche v. Proctor (48 Pa. 471). In * the former. No intimation of any such intent is given in Hinkle's Appeal. If we were to give that effect to the latter case it not only overrules a single case but a line of decisions followed in Follweiler's Appeal. The point raised in the case at bar is not discussed by the Court in Hinkle's Appeal. that case the will provided at the death of my above-named wife what I may have left her, that is to say the residue is to be divided in equal shares among my children.' The Court said this word residue as used in this place does not imply a residuum of estate or interest like a remainder, but a residuum of the property, or as in the testator's own language of "what I may have "The Court in that case discussed but two left her" and in this sense is exactly equivalent questions, whether the life estate of Dr. Hinkle to "surplus" a word which was fully considered was enlarged to a fee, either by reason of the and expounded in Pennock's Estate (8 Harris 282.') "So in the Reformed Church v. Disbrow (52 Pa. 224), it was held, that the words "any part remaining" were equivalent to the word "residue" and imply, that part of the interest derived might be so used and converted as not to be in existence at her death.' "The word 'residue' as used and connected by the testator has the same meaning as the words 'surplus,' 'remaining personal property,' if any left,' any part remaining,' 'what shall be left,' when used in similar bequests. (Jauretche v. Proctor, supra; Pennock's Estate, 20 Pa. 268; Staub's Appeal, 1 Id. 86; Hambright's Appeal, 2 Grant, 320; Reformed Church v. Disbrow, supra; Follweiler's Appeal, 102 Pa. 581.) "If then the word residue' is the equivalent of the foregoing words or phrases, the testator's widow under the bequest to her clearly had the right to more than the income of the personalty. She could consume of the principal without any liability to the executor or the other legatees under the will. "The case before us is ruled by Staub's Appeal, supra. The will provided, 'I give and bequeath to my beloved wife all my real and personal estate of whatever nature the same may be, to be held by her during her natural life, and my wife shall out of the same keep and provide for my son Valentine. And it is further my will that after the death or decease of my beloved wife all my real estate . . . and all my remaining personal property of whatsoever nature the same may be, shall be sold by my executors and for that purpose I do give and bequeath all my said real and personal estate to my executors.' He then directed his executors to divide the money so arising from his real and personal estate after his wife's death among his children. Exceptions were filed to the executor's account because he had paid to the widow $1806, without taking security for the delivery to the legatees in remainder." The Court then cited at length the opinions of the Court in Staub's Appeal, and Follweiler's Appeal, supra, and then concluded :— "The learned Auditor concludes that Follweiler's Appeal is overruled by Hinkle's Appeal (116 Pa. 490), otherwise he would have followed direction to pay out legacies or by reason of the power of sale attached to the life estate." The Auditor thereupon restated the account which was again excepted to, but was confirmed by the Court, whereupon the exceptants John S. Markley and Samuel Markley, took this appeal, assigning for error the construction put upon the will, and the decree of the Court as above. Charles Hunsicker, for the appellants. N. H. Larzelere (M. M. Gibson with him), for the appellee. We are February 17, 1890. THE COURT. of opinion that the learned Court below disposed of this case upon correct principles. Under the will of Christopher Markley the widow took the personal estate absolutely: that is to say, she had the right to use so much of it as was necessary for her comfort and support. It was only the residue thereof that was to go to the testator's children after her death. The only matter that leaves any doubt upon this question was the manner in which the real and personal estate were blended by the will. But in view of the fact that a considerable portion of the personalty consisted of crops, stock on the farm, and farming implements, the mere use of which necessarily implied their consumption and destruction, and that the testator made no distinction between this character of property and money at interest, we are led to the conclusion that he intended his wife to take the whole 'personalty absolutely if it was needed for her support. It appears to have been needed, and as his widow was the first object of the testator's bounty, it was a natural provision for him to make. We think this view is fully sustained by the authorities referred to by the learned Judge below in his opinion. The decree is affirmed, and the appeal dismissed at the costs of the appellants. PER CURIAM. [See next case.] C. K. Z. Wills-Life-estate in personal property-Power of life tenant to consume the personalty. When a testator bequeathed to his wife "all and whatsoever is remaining (after payment of debts) of my property, of whatever kind or nature the same may be after my decease, to have, hold, use, possess, and enjoy the same during her lifetime," and directed that after her death "all the remaining property" should be sold and divided among his children, and it appeared that a considerable portion of the personalty consisted of crops, farm stock and implements, the use of which implied their consumption, it was clear that the wife was the first object of testator's bounty, and that he intended she should use so much of the personalty as might be necessary for her support, and his executor was therefore held entitled to credit in his account for portions of the principal of said personalty paid to the widow and consumed by her for her support. Appeal of Reuben Messinger, executor of Jacob Gold, deceased, from a decree of the Orphans' Court of Northampton County dismissing his exceptions to the report of the Auditor appointed to pass upon his account as executor. The facts of the case were as follows: The deceased died in 1878, seised of eighteen and a half acres of land and possessed of certain household goods, farm stock and implements, and two notes, amounting in all to $900, of which one note was payable by his executor for $860, on which was indorsed a credit of $110. His indebtedness amounted to about $300. The language of decedent's will is given in full in the opinion of the Supreme Court. His widow, Abigail Gold, died in 1887. The decedent's executor, Reuben Messinger, then filed his account, claiming to deduct from the amount due on his note the sum of $874.44, which he had paid to the widow or others for her, in cash or merchandise. The residuary legatees objected to this credit, and the account was referred to A. B. Longaker, Esq., as Auditor, who found that the widow had but a life estate in the personalty and that the accountant was not entitled to the credit claimed. The Auditor relied upon the following cases: Morrison v. Semple (6 Binney, 98); Drennan's Appeal (118 Pa. 176); Steele v. Thompson (14 S. & R. 101); Johnson v. Morton (10 Barr, 249); German v. German (3 Casey, 116); Hunter's Estate (6 Barr, 99); McLaughlin v. McLaughlin (12 Harris, 22); Rudolph's Appeal (2 Grant, 461); Appeal of the Board of Missions (10 Norris, 510); Hofius v. Hofius (11 Id. 308). The executor excepted to this finding on the grounds that the Auditor erred in his construction of the will and in refusing the credit claimed. These exceptions were dismissed by the Court, and the report confirmed, no opinion being filed; thereupon the said Reuben Messinger, executor, took this appeal, assigning for error the dismissal of his exceptions and the confirmation of the Au ditor's report. O. H. Meyers, for appellant. William C. Shipman (William Fackenthall and B. F. Fackenthall with him), for appellees. March 24, 1890. THE COURT. This case is upon all fours, both as to its law and its facts, with Markley's Appeal, decided at this term and not yet reported, where we held that the widow had the right to use so much of the personal estate as was necessary for her comfort and support, and that it was only the residue that was to go to the testator's children after her death. [See preceding case.] In the case in hand the personal estate consisted of household goods, farm implements and live stock, pigs, chickens, and farm crops, a note of $860, and one of $150, with some credits indorsed thereon. The testator disposed of his estate as follows: "I give and bequeath unto my dear wife Abigail all and whatsoever is remaining (after payment of debts) of my property of whatever kind or nature the same may be after my decease, to have, hold, use, possess and enjoy the same during her lifetime. And further, it is my will and I do order after my wife's death that all the remaining property of whatever kind shall be sold and divided amongst my five children in equal parts," etc. It is clear that the testator's wife was the first object of his bounty, and that he intended she should use so much of his personal property as might be necessary to her support during her lifetime. The language of the will is very emphatic. She is to "have, hold, use, possess, and enjoy the same during her lifetime," and it is only the remainder, that is, what is left thereof, that is to be sold and distributed among his children after his wife's death. There can be no possible doubt as to this construction so far as regards the perishable property, such as household goods, farming implements, stock, and produce of the farm. Nor do we think there can be any doubt as to the two notes. They were intended for her support, if needed; what was left was to go to the children. We, therefore, think it was error to refuse to allow the accountant credit for the amount of the disbursements made by him to the widow in discharge of the note held by the testator against the accountant. This view is not in conflict with Hofius v. Hofius (92 Pa. 308). That case differs widely from this, and the distinction is so palpable that we need not stop to discuss it. All of the assignments of error are sustained. Q. S. of Cumberland Co. In re Widening of Keller Street. Municipal corporations-Boroughs-CouncilsStreets-Widening of Power to discontinue proceedings for. The town council of a borough may discontinue proceedings for the widening of a street at any time before taking possession of the property under completed proceedings; and a petition so to discontinue based on a repeal of the ordinance authorizing the proceedings, will be granted notwithstanding answers are filed averring that improvements had been made on the faith that the street would be widened; that such widening of the street is desirable, and that the borough had done certain work upon the street. Sur petition and answer. was held under advisement and an opportunity given to the borough to present a petition for the discontinuance of the proceedings. On the 11th November, 1889, the said council formally petitioned the Court to discontinue all proceedings in the case, annexing a certified copy of the ordinance repealing that by which Keller Street, had been widened. To the rule granted on this petition, answer was made to the effect that improvements had been made on the faith that the street would be opened; that it is desirable that the street should be widened, and that it will cause great damage and inconvenience to property holders living on line of same if the request of the borough is granted. It was also averred that the borough had done certain work on the street in front of at least two of the properties affected. The simple question is, whether at this stage the town council could discontinue the proceedings inaugurated for the widening of said street? We are satisfied, on a review of the authorities, that it should be answered in the affirmative. It has the power to survey, lay out, enact, and ordain such streets, roads, lanes, alleys, courts, and common sewers as it may deem necessary and to provide for, enact, and ordain the widening and straightening of the same. If this power is unwisely exercised, we are powerless to afford relief so long as it is done in the exercise of an honest discretion. The council of Mechanicsburg having the power to pass the ordito repeal the ordinance and stay the proposed change. Dillon, in his admirable work on Mu The facts sufficiently appear in the opinion, nance widening Keller Street, it had the power infra. W. P. Lloyd, for the borough. H. H. Mercer and W. M. Zug, for individual nicipal Corporations, page 572, section 473, property owners. January 22, 1890. THE COURT. On the 3d day of September, 1883, the common council of the borough of Mechanicsburg passed an ordinance increasing the width of Keller Street from Washington to York. The said street had only been of a width of twenty feet between the points named and was by this ordinance, made of the uniform width of sixty feet. Upon petition the said borough council appointed viewers to assess the damages occasioned by the widening of said street. From the report of these viewers, made on 28th of February, 1889, an appeal was taken to the Court of Quarter Sessions of this county under the provisions of the Act approved the 13th day of April, A. D. 1868. states, "That under the language by which the power to open streets and take private property for that purpose is usually conferred upon municipal corporations, they may at any time before taking possession of the property under completed proceedings, or before the final confirmation, recede from or discontinue the proceedings they have instituted. This may be done, unless it is otherwise provided by legislative enactment, at any time before vested rights in others have attached. Until the assessment of damages has been made, the amount cannot be known, and it is reasonable that after having ascertained the expense of the project, the corporation should have the discretion to go on with it or not, as it sees fit." This view is abundantly justified by the determinations in cases adjudicated in the Courts of These viewers made report on 4th of May, last resort of the States of New York, Maryland, 1889, which was confirmed nisi on the 23d of Massachusetts, as well as of this Commonwealth. same month. Exceptions were filed to this In the matter of Canal Street (11 Wendell, 154) report, which among other things alleged that the motion of the city of New York was granted the ordinance of 3d of September, 1883, had to discontinue proceedings in reference to the been repealed. The confirmation of the report | laying-out and opening of a street subsequent to |