dren above named as his only issue. He made his | the estate in remainder.' Said will was duly probated April 24, 1865, and letters issued thereon. The said Sheffield Wilcox made no disposition of said lands except that made by said contract. That during his lifetime he lived on said premises as provided in said contract. Harriet Wilcox was a lunatic at the death of her father, Rollin Wilcox, and has so continued to the present time. The defendants above named are and have been in possession of said lands. If the Court be of the opinion that Harriet Wilcox acquired title from Sheffield Wilcox above named to an undivided one-fourth interest in said lands above described, then judgment to be entered for the plaintiff for an undivided one-fourth interest in said lands, but if the Court be not of that opinion, but of the opinion that Rollin Wilcox aforesaid, under the foregoing contract and facts, took the fee from said Sheffield Wilcox, then judgment to be entered for defendants. Costs to follow judgment, either party reserving the right to sue out a writ of error therein. After argument the Court, SITTSER, P. J., of 44th Judicial District, delivered the following opinion: "By the writing presented for construction Sheffield Wilcox declares the land, which is the subject of this ejectment, to be held by him in trust for the said Rollin Wilcox during his life and for his heirs after his decease.' See Perry on Trusts, "A trust is said to be executory when some further act is requisite to be done by the author of the trust or his trustees to give it full effect. The trust in this case was executed. There was nothing further to be done by Sheffield Wilcox to give effect to the writing or to vest an interest under the trust, and we are compelled to give the word heirs its appropriate effect as a word of limitation. This view is confirmed by the closing part of the writing where it is said at the decease of the said Sheffield the said Rollin may continue to occupy and enjoy said property during his natural life and at his death the same shall go and be held by the heirs of the said Rollin Wilcox and their assigns forever in the same manner as if the title had now passed subject to a lien for the performance of the covenants hereinbefore contained. "In the same manner as if the title had now passed-to whom? The plaintiffs contend that this means as if the title had now passed to the heirs of Rollin Wilcox. We do not so read it. We think it means in the same manner as if the title had now passed to Rollin to occupy and enjoy said property during his natural life and after his death to go to and be held by his heirs. Being of opinion that Rollin Wilcox under the contracts and facts set forth in the case stated, took a fee from the said Sheffield Wilcox, we direct judgment to be entered for the defendants on the case stated." Judgment for defendants accordingly. The plaintiff thereupon took this writ, assigning for error the action of the Court in entering judgment for defendants on the case stated. McPherson, (Angle, Edward Overton, Wil"This declaration of trust is made in considera-liams, Elsbree & Williams with him), for plaintiff tion of certain things to be done and performed by Rollin Wilcox, his executors, administrators, or heirs, viz., the support, etc., of Sheffield Wilcox during his life; the case stated sets forth that these things were done. "If a conveyance had been made by Sheffield Wilcox to Rollin Wilcox during his life and for his heirs after his death there can be no doubt but that the word heirs' would be considered a word of limitation and not of purchase and Rollin Wilcox would take the fee. "But it is contended that this writing is a declaration of trust, and that in such instruments the rule in Shelley's Case does not apply. It is said in Washburn on R. P., 455, 182, 'And this rule' the rule in Shelley's Case' applies alike to equitable as to legal estates, in case of executed trusts. But it does not apply to executory trusts, especially trusts in marriage settlements, nor in any case where it is intended that the tenant for life shall not have a right to cut off in error. The trust was not executed in the present case. When the purpose of the trust is to protect or preserve the estate for a given time, or until the death of a certain person, the operation of the statute is excluded and the trusts or uses remain mere equitable estates. Perry on Trusts, vol. I., sec. 305. The estates to Rollin Wilcox and to his children, being of different qualities, one equitable and the other legal, did not merge so as to make up a fee or fee tail in Rollin. Perry on Trusts, vol. I., sec. 358. Washburn on Real Property, vol. II., p. 557. The intention of the settlor ought to be re Postlethwaite's Appeal, 18 Smith, 478. This intention in the present case evidently was not to vest an absolute estate in Rollin. Guthrie's Appeal, 1 Wright, 9. Physick's Appeal, 14 Wright, 128. live separate from the family of said Rollin and in the farm-house aforesaid, then the support which he and said one other person shall receive, shall be understood to mean such support and maintenance as may be needful beyond what shall be yielded by the use of the cows, garden-spot, And the said Rollin The words "heirs or heirs of the body" may and four acres of ground. be construed as words of purchase. Criswell's Appeal, 5 Wright, 288. Wilcox further agrees to pay, satisfy, and discharge all liens now against said property, and to keep the said Sheffield indemnified against the same and the property from being sold thereon." The trust referred to is, that the land in question, then owned in fee by Sheffield Wilcox and known as his homestead, "shall be and the same The rule in Shelley's Case applies, irrespective is hereby declared to be held in trust for said of the settlor's wishes. Cockins's Appeal, 1 Am. 26. March 26, 1888. THE COURT. The controlling question is, whether, upon the facts recited in the case stated, Rollin Wilcox died seised în fee of the land in controversy. If he did, the title thereto passed by his will in 1865 to his three sons, defendants in this case, and judgment was rightfully entered in their favor. On the other hand, if the declaration of trust embodied in the agreement of April 27, 1861, between Rollin Wilcox and his father, gave the former merely an equitable life estate on condition, he had no interést in the land on which the will could operate, and hence, upon his decease, the title vested in possession in his four children as tenants in common, and the plaintiff, representing one of them, was entitled to judgment for the undivided one-fourth of the land. As expressed in the agreement referred to, the consideration for the declaration of trust was the following covenants of Rollin Wilcox, to be kept and performed by himself, "his heirs, executors, and administrators," viz: "the said Rollin Wilcox covenants and agrees that the said Sheffield Wilcox, his father, may reside with him at the mansion house upon the homestead aforesaid, so long as he shall live, and to provide him with all needful food and clothing according to his usual and customary requirements, and also with medicine and medical attendance, with all needful care in sickness and old age; or, if the said Sheffield Wilcox shall choose to live at the farmhouse on the homestead farm and near to the mansion house, that he may do so, and shall be there supported together with one other person, his wife or housekeeper, so long as he shall live; that he shall have a suitable garden-spot together with four acres of land to work on the farm where he shall choose; he shall have two cows provided and kept for his use, and also the use of a house when he shall desire it for his own use; also two beds and bedding if he shall require it. If the said Sheffield Wilcox shall choose to Rollin Wilcox during his life, and for his heirs after his decease, upon the said Rollin Wilcox complying with and fulfilling the covenants above quoted." This is not the only provision, as we shall presently see, in regard to the heirs of the life tenant. So far, however, as it relates to the latter, the declaration above quoted creates a trust on condition that the cestui que trust for life," his heirs, executors, and administrators," keep and perform said covenants (2 Minor's Inst., 227, 229). The word "upon" is evidently the equivalent of “on condition that," etc. The legal title was held by the donor not solely for the benefit of those in whose favor the trust was declared, but also for his own benefit and protection. If the covenants of the equitable life tenant were not kept the donor had a right of re-entry for condition broken, and hence the trust was not, and could not be executed during the life of the former without depriving the latter of his right of dominion over his property. The declaration of trust is the same in effect as if Sheffield Wilcox had conveyed the land to a third party as trustees upon the same trusts and conditions. If for no other reason, such a trust will be upheld for the benefit and protection of the donor. trust is never executed by the statute when its preservation is necessary, either for the protection of a feme covert, spendthrift child, or to support a contingent remainder, or to serve some other useful and lawful purpose. (Husband's Insts., sects. 281, 284, etc.; Rife v. Geyer, 59 Pa. 393, 396; Dodson v. Ball, 60 Id. 492, 496.) In Rife v. Geyer (supra), it is said: "Whenever it is necessary for the accomplishment of any object of the creator of the trust, that the legal estate should remain in the trustee, then the trust is a special active one. The true test is whether a Court of Equity in Pennsylvania would decree a conveyance of the legal title A Whenever the entire beneficial interest is in the cestui que trust without restriction as to the enjoyment of it, there is no reason why it should not be considered as actually executed." Applying the test above stated to the facts of this case, it is very clear that no chancellor | Jan. '87, 143. February 16, 1888. r would have compelled Sheffield Wilcox to convey Township of North Manheim v. Arnold. the land in question to his son Rollin and thus deprive him of the benefit of the legal title which he retained, in part at least, for his own protection. In addition to the declaration of trust above quoted, the agreement concludes with the following provision, predicated of the fact that Rollin might and probably would survive his father, viz: "At the decease of said Sheffield, the said Rollin may continue to occupy and enjoy said property during his natural life." It happened, however, that Rollin pre-deceased his father. The next and last provision in the agreement is, that at Rollin's death the land "shall go and be held by the heirs of said Rollin Wilcox and their assigns forever, in the same manner as if the title had now passed subject to a lien for the performance of the covenants herein before contained." This, to some extent, qualifies the general declaration of trust first above quoted, and in effect gives a vested remainder in fee to the heirs of Rollin, enjoyable in possession immediately upon his death, subject only to a lien or charge in the land to secure full performance of the covenants. As we have seen, the interest of Rollin Wilcox was an equitable life estate on condition. The trust as to him was special, not executed nor capable of being executed during his lifetime without the consent of his father, while the remainder to his heirs was executed, and therefore in effect, if not in form, a legal estate. The quality of the estate for life being different from that of the remainder the two did not coalesce and, under the rule in Shelley's Case, constitute an estate tail. It is well settled that the interest limited to the ancestor, and to his heirs, must be of the same quality; that is, both must be legal, or both equitable (2 Minor's Inst., 342; Husband's Insts., sec. 284; Steacy v. Rice, 27 Pa. 75, 81; Bacon's Appeal, 57 Id. 504, 514). If the trust as to both had been executed, as the learned Judge of the Common Pleas held it was, his conclusion would have been correct; but, in that respect, we think he was mistaken. Judgment reversed; and judgment is now entered on the case stated, in favor of the plaintiff for the undivided one-fourth of the land with six cents damages and costs. Opinion by STERRETT, J. TRUNKEY, J., absent. L. L., Jr. Obstruction of highways by deposit of private property thereon-Injuries resulting therefrom Duties of township officers-Notice toWhen presumed-Rights of owners of property abutting on highways to use the same for special purposes. Where objects ordinarily calculated to frighten roadworthy horses are placed and suffered to remain in the public highway, they are regarded as defects in the road, and the public authorities, after due notice, are liable for injuries caused thereby. It is the duty of road officers to forbid and to prevent the use of the roadside as a place of deposit for private property, particularly if it be of a character likely to alarm or frighten ordinarily well-broken horses. insufficiency of a road: they are required to do what Township officers are not absolutely liable for every is practicable to be done, and to preserve a condition of reasonable safety with reference to the amount and kind of travel which the highway accommodates. An owner of land abutting on the public highway has a right to use a portion of the highway in a reasonable manner for special purposes for a temporary period; that right is not subservient to the right of the travelling public, and its exercise without negligence imposes no liability. A public highway thirty-three feet wide, near a railroad crossing, was obstructed by piles of lumber five or six feet high and projecting into the road, so that the space left open for travel was about fourteen feet six inches wide. A horse driven by plaintiff late in round suddenly, was killed, and destroyed plaintiff's the evening took fright at the obstruction, and turning sleigh and harness. Suit having been brought: Held, that it was proper, as affecting the question of notice of the obstruction to the township authorities, to introduce evidence to show that lumber had, in upon the highway, for the reason that it was the duty often-repeated cases, been piled on the same place. of the township officers to know of and prevent the habitual and continued invasion of the highway. Error to the Common Pleas of Schuylkill County. Case, by Clara Arnold and Charles Arnold, in right of the said Clara, against the township of North Manheim, to recover damages for the loss of a horse, broken sled, and harness. Plea, not guilty. Upon the trial, before BECHTEL, J., it appeared that in March, 1885, plaintiff, with her son, left their home to go to Orwigsburg, at ten in the morning. Upon crossing the tracks of the Philadelphia and Reading Railroad, at Landingville, they observed a truck loaded with lumber standing on the track. This lumber was unloaded during the day and deposited in piles on each side of the public road. The piles were five or six feet high, and they so projected into the road, which was thirty-three feet wide, that the (3) If the piles of lumber on and upon the space left open for travel was about fourteen feet margin of the public road, leaving only fourteen six inches. When plaintiff and her son were feet four inches between the piles of lumber for returning home late in the evening, the horse, travel, were permitted to remain for a long time when within a few feet of the lumber pile, sud- at a point in the bend of the road, at and near denly sprang round without warning to the the railroad crossing, and that these circumstances driver, upset the sleigh, and dragged the driver were such as to render the accident not only possome distance before he was released. The horse sible but probable, it was their duty to provide was killed and the sleigh and harness destroyed. against such a probability and the want of such Plaintiff's counsel proposed to ask a witness provision is negligence per se. Answer. To on the stand: "Was there or was there not al- this we say, affirmed. But we say to you, that most continually, for many years, piles of lumber the plaintiff cannot recover for such negligence on both sides in the road, and on the margin of unless you find that such negligence was the exthe road in close proximity to the railroad cross-clusive cause of the damage to her property. ing?" for the purpose of showing- negligence on (Second assignment of error.) the part of the township officials. Objected to because it is immaterial to this issue what lumber was on either side of this road at other times than the one complained of when this horse shied. Defendant did not object to the plaintiff showing anything as to that lumber that was there at that time, and the length of time it was there; but to all other lumber the defendant did object. THE COURT. We think you may show that they were in the habit of unloading lumber at this place, or you can show the knowledge of the supervisors, that they permitted lumber to remain in the road, as bearing upon their knowledge of the fact that the lumber was there; but you can't recover for any negligence, except the permitting of that particular obstruction that caused your injury. You can't recover for piles of lumber there five years ago and that caused no harm to you. You may show any knowledge on the part of the township officers. Exception. (Seventh assignment of error.) Plaintiff submitted the following points, inter alia : (1) If the jury believe that that part of the public road at and near the railroad crossing where the accident occurred was dangerous to travel, by reason of piles of lumber on said public road and on the margin on each side of the road, so as to leave but fourteen feet four inches in width for travel between the piles of lumber, and that such piles of lumber so located were calculated to frighten plaintiff's horse, and did frighten plaintiff's horse, the township is liable in damages for the cost of the horse, sled, and harness. Answer. To this we say, we have heretofore stated to you the duty and the liability of the township, and now say, if you find the facts to be as they are bere stated, and further find such obstructions continued for such length of time as to make the delay to remove it negligence in the officials, then this point is affirmed. Of course, you must also find that the plaintiff did not contribute to that injury by her own negligence. (First assignment of error.) Defendant submitted the following point, inter alia : (5) That under the evidence in this case there was no evidence of notice, either actual or constructive, to the township, of the lumber extending into the travelled portion of the public highway, and therefore the verdict must be for the defendant. Answer. We know of no evidence in this case showing that the supervisor was actually notified that the lumber complained of was on the travelled or public highway, but we submit to you this question, whether or not there was an obstruction in this public highway, and if so whether it continued there such length of time as to make a failure of the officials to discover and remove it, negligence on their part. (Fourth assignment of error.) Verdict for the plaintiff for $225 and judgment thereon. Defendant then took this writ and assigned error as above. G. H. Gerber and W. F. Shepherd, for plaintiff in error. Evidence which has no legal operation on the rights of the parties should be rejected. Kocher v. Bowman, 10 Watts, 129. Baker ". Donaldson, 6 W. & S. 133. Stewart v. Bank, 11 S. & R. 267. The law does not require that ways should be It was error to affirm plaintiff's third point. kept in a condition of such absolute safety as precludes the possibility of accident or injury. Allegheny v. Gilliam, 30 Pitts. L. J. 461. Defendant's second point should have been affirmed without qualification. City of Lancaster v. Kissinger, 11 WEEKLY NOTES, 151. Under the facts in this case there could be no constructive notice to the township. Gaviard v. R. R. Co., 5 Casey, 154. Otto Township v. Wolf, 10 Out. 608. If a person knows of a dangerous obstruction, and in consequence of the darkness of the night is unable to see it, but nevertheless attempts to pass and is injured, he cannot recover damages. Farnan v. Concord, 2 N. H. 392. Mt. Vernon v. Dusonchett, 2 Ind. 586. Country roads are seldom, if ever, kept in repair from side to side. A sufficient portion of the middle only is kept in smooth condition, and The rest is often left dangerous by reason of ditches and obstructions of various kinds. safe and convenient for travel. Perkins v. Inhab. Fayette, 68 Me. 152. J. W. Roseberry, for defendant in error. A township is bound to remove objects deposited upon the highways, the natural effect of which is to occasion accidents by frightening horses of ordinary quietness. Shearman & Redfield on Negligence, 466, 467. Where the circumstances created by the negligence of the authorities are such as to render the accident not only possible but probable, it is against such probabilities they are bound to provide, and the want of such provision is negli March 26, 1888. THE COURT. This suit was brought by Clara Arnold to recover damages for the loss of a horse, sleigh, and harness, through the alleged negligence of the road supervisors of North Manheim Township. The injury occurred at Landingville, in the month of March, 1885, at a point where the public road to Orwigsburg crosses the four tracks of the Philadelphia and Reading Railroad. It appears that a quantity of lumber taken from the cars had been deposited in piles on each side of the public road. The piles were five or six feet high, and they so projected into the road, which was thirty-three feet wide, that the space left open for travel was about fourteen feet and six inches. Late in the evening of the day of the occurrence, the plaintiff's son undertook to drive this horse and sleigh over the railroad crossing, on the public road, towards Orwigsburg, when the horse, it is alleged, took sudden fright at the lumber piles, turned on to the railroad track, upset the sleigh, ran into the railroad bridge, and was killed; and that the sleigh and harness were wholly destroyed. It is contended on part of the plaintiff, that these lumber piles were improperly permitted to remain on the public road; that they caused the fright of the horse, which resulted in the injury, and that the township is liable therefor. It is well settled by the decision of this Court, and of the Courts of other States, that where objects, ordinarily calculated to frighten roadworthy horses, are placed, and suffered to remain, in the public highway, they are regarded as defects in the road, and the public authorities, after due notice, are liable for injuries caused thereby. (Whar. on Neg. 983; Ayer v. Norwich, 39 Conn. 376; Morse v. Richmond, 41 Ver. 435; Stone v. Hubbardston, 100 Mass. 50; Foshay v. Glenn Haven, 25 Wis. 288; Bartlett v. Hooksett, 48 N. H. 18; Card v. City of Ellsworth, 65 Maine 547.) To the same effect, although not brought against the township officers, is our own very recent case of Piollet v. Simmers (106 Penn. 95), where the authorities are collected, and the whole subject is very fully considered. The rule is perhaps difficult of practical application, as the frightening of a horse cannot be said to be governed by any rule of reason or experience; the fright of a horse may, perhaps, as often be attributable to the place in which an object is unexpectedly found, as to the frightful appearance of the object itself; still there are objects which are well known to present such an appearance, as may be expected, and naturally will, alarm ordinarily well broken and roadworthy horses, and it is the duty of supervisors of highways to remove all such impediments to safe travel. It makes no difference that the lumber was not in the travelled route; the fact that it was piled upon the margin instead of the path of the highway, does not alter the rule of liability, for the result produced, in either event, is that the travelled route is thereby rendered unsafe. It is the duty of road officers to forbid and prevent the use of the roadside as a place of deposit for private property, particularly if it be of a character to alarm or frighten ordinary horses. "The traveller has reason to expect that the highway will have the ordinary and reasonable incumbrances, which arise from the nature of the soil and country, and its being worked and repaired in a proper manner; but he has no reason to apprehend that the township has suffered these dangers to be increased, by allowing the land taken for public use to become unlawfully appropriated to private uses, as a place of deposit for property, which will in any manner obstruct or impede travel, whether by frightening his horse or clogging his wheels." (Morse v. Richmond, supra.) This is said of course with the qualification, that the duty does not attach until the township officers know, or ought to know, of the obstruction. It was certainly proper, as affecting the question of notice, for the plaintiff to in |