Helfenstein's Estate.

reported the distribution of Helfenstein's estate, excluded the note therefrom. To his report the trustees of the seminary took exceptions, and from the decree of the Orphans' Court overruling such exceptions, took an appeal to this court.

B. E. Chain, for appellants.

B. M. Boyer, E. W. Bean and C. H. Stinson, for legatee of Helfenstein.

SHARSWOOD, J. Had the decedent united with others as a subscriber to the fund for the increase of the library of the Theological Seminary at Tiffin, Ohio, the note upon which the appellant made his claim might have been sustained under the case of Caul v. Gibson, 3 Barr. 416. Or, if the note had been accepted by the trustees, before the death of the promisor, it would have stood on the footing of the principle applied in Chambers v. Calhoun, 6 Harris, 13; for in such case, if the trustees assumed the duty imposed upon them by the terms of condition of the note, it would have been a sufficient consideration to sustain the promise. But when the decedent died, the trustees had not accepted the note, and his death was a countermand in law of the offer, for such it must be considered until accepted. In Phipps v. Jones, 8 Harris, 260, where there was a subscription with others for the benefit of a proposed association to build a church, it was held that it was a mere proposal, revocable until the association was formed and the promise accepted, and the death of the subscriber was such a revocation. The promise then was a nudum pactum. Nor can it be sustained as a declaration of trust. If it could, every parol promise without consideration might. It matters not who the promisee is, whether a private individual, a corporation or charity. Mr. Helfenstein held no fund or property of which a declaration of trust could be predicated, and which might be enforced in equity as against mere volunteers. Such was the case in Ex parte Pye, 18 Ves. 140; Ellison v. Ellison, 6 id. 656; Richardson v. Richardson, Law Rep., 3 Eq. 686; Morgan v. Mallison, Law Rep., 10 Eq. 475. Had the donor in this case held stocks or bonds, or notes of a third person, and had promised to give such property or securities to this charitable purpose, it might, perhaps, have been within the principle of these decisions, which are founded in reason and good sense. There is no pre

Seeger v. Pettit.

scribed form for the declaration of a trust. Whatever evinces the intention of the party that the property, of which he is the legal owner, shall beneficially be another's, is sufficient. V. C. Sir W. PAGE WOOD said in Richardson v. Richardson, supra, "The real distinction should be made between an agreement to do something when called upon, something distinctly expressed to be future in the instrument, and an instrument which affects to pass every thing, independently of the legal estate." But the case now before the court, of a mere promise to pay money in futuro, is evidently far out of the reach of any of these cases.

Decree affirmed.

SEEGER V. PETTIT.

(7 Penn. St 437.)

Fixtures-what tenant may remove during term.

As between landlord and tenant, in respect to fixtures, the rule is that it is not the character of the physical connection with the realty that constitutes the criterion of annexation, but the intention to annex. The law will raise no presumption of such intention as to fixtures the tenant puts on for his own comfort or convenience, and, as a general rule, he may remove them during his term.

Accordingly a tenant allowed to remove coal-bin, gas-fixtures, stairway and banisters, closet, platform scales, etc.

A

CTION by Ann Pettit against Rowland Seeger to recover the value of certain fixtures alleged to belong to plaintiff below, and which defendant below had removed from said plaintiff's building. The facts were these: Defendant and one John Pettit, as copartners, in 1864, rented the premises in question of one Bcn. nafon. The copartnership continued until 1866. During the time some gas-fixtures, platform scales and a walnut railing were put in such premises. In the last-mentioned year, the firm dissolved and John Pettit continued the business alone. The next year John Pettit purchased the premises and the same year sold them to the said plaintiff, his mother. The next year said defendant went into partnership with John Pettit. This firm put in a

Seeger v. Pettit.

staircase and banister. During John Pettit's sole occupancy a coal-bin, some shelving, etc., were put in. In January, 1871, the copartnership was again dissolved, defendant purchasing the interest of John Pettit. He continued sometime thereafter in possession of said premises, paying rent therefor. During the time of plaintiff's ownership, John Pettit acted as her agent in relation to them, collecting rent, etc.

During the trial these questions were asked by defendant of witnesses: "Were not these articles included in the inventory and appraisement of the first firm on its dissolution?" and "When the firm was dissolved in January, 1871, were these fixtures included in the assets for which you (defendant) paid Mr. Pettit?" These questions were, upon the objection of plaintiff, rejected by the court. Defendant gave evidence tending to show that the various fixtures were put in for the convenience of the tenants in their business, and were but slightly attached to the building. And evidence was given on the part of the plaintiff tending to show that the removal of the stairway weakened the building.

The court below, in charging the jury, held that the various fixtures could not be removed by defendant. The verdict was for plaintif and defendant took a writ of error to this court.

C. S. Pancoast, for plaintiff in error.

R. O. White, for defendant in error.

PAXSON, J. There are several specifications of error in this case, all of which, we think, are sustained. The evidence referred to in the first and second specifications was competent to show that the tenants treated the fixtures as personal property. John Pettit was a son of the plaintiff below, and acted for her in renting the property, collecting the rent, etc. During a portion of the time he was in partnership with Mr. Seeger. It was clearly competent to prove, upon the question of intention, that the firm treated the fixtures as their own property, and included them among their assets.

The remaining specifications of error refer to the charge of the court and may be considered together. Under the earlier decisions physical annexation was undoubtedly the test. But this doctrine no longer prevails. It was overturned in Voorhis v. Freeman, 2

Seeger v. Pettit.

W. & S. 116; followed by Pyle v. Pennock, id. 390; and numerous other cases which will be found collected in Hill v. Sewald, 3 P. F. Smith, 271. The true rule to be deduced from these authorities is, that it is not the character of the physical connection with the realty which constitutes the criterion of annexation, but it is the intention to annex. Where a tenant puts in fixtures or conveniences for his own comfort, the law raises no presumption that he intended them as permanent improvements, to be left for the benefit of his landlord; and, as a general rule, he will be entitled to remove them during his term. For any injury to the freehold by reason of such removal, he is of course liable to the landlord in damages.

The matter of fixtures should have been left to the jury as a question of intention. Instead of doing so, the learned judge applied the law to certain facts of the case, and instructed the jury substantially that, if there was physical annexation, the articles could not be removed. This was error.

Judgment reversed, and new trial ordered.

CASES

IN THE

SUPREME JUDICIAL COURT

OF

MASSACHUSETTS.

HILL V. HILL.

(113 Mass. 103.)

Licenses to enter upon land, revocation of.

A parol license to enter upon land "at any and all times" and cut and carry away growing wood, must be acted upon within a reasonable time, and if not acted upon within a period of more than three years, may be revoked.

YONTRACT. The declaration contained two counts. The first

alleged in substance that the plaintiff conveyed by deed certain real estate to the defendant, for the sum of $1,000, and that the defendant owed the plaintiff $600, the balance due of that sum. The second in substance alleged that the plaintiff and defendant owned a farm in common, which they agreed to divide; that the plaintiff was to have all the wood, timber and trees on a portion of it, with a right to cut and take them away; that the parties mutually made conveyances, the plaintiff attempting to reserve in the conveyance made by him the wood and timber as agreed upon; that the attempted reservation was invalid, and that the defendant, in violation of his agreement, prevented him from taking the wood, timber and trees.

In the Superior Court the case was submitted upon an agreed statement of facts, from which it appeared, that April 22, 186b.