be paid out of my estate as soon after my decease as shall by them be found convenient. Item 1. I give, devise, and bequeath to my beloved wife, Susannah, the dwelling house in which we are now living, and all there is therein, to have and to hold the same until her death, when it shall go to my two daughters, Marietta and Frances, with the exception of the organ, which shall go to my son Charles Irwin. I also give to her two cows and one horse, to have and to hold the same forever. I further give and bequeath to her one-fourth of all the grain and fruit raised upon the farm on which I am now living, and also a garden, the product of which she is to have; the said portion of grain and fruit and garden stuff to be held and possessed by her until she shall no longer be able to take care of herself, and must be kept, cared for, and boarded by my son George Washington, as hereinafter stated. Item 2. I give and bequeath to my son Peter Augustus forty acres from the east end of my farm, which is situated in Canal township, Venango Co., Pa., and is bounded as follows: On the north by land of Wm. Smith; on the south by public road; on the east by land of Rhode's sons; and on the west by Wm. Smith; the said Peter Augustus to give to his mother, as already mentioned, the one-fourth, in the bushel, of all the grain and fruit raised on the above forty acres until the time herein already stated. I further give and bequeath to the said Peter Augustus the adjoining dwelling house, in which my son George Washington is now living; also a flock of sheep, should I possess such at the time of my decease,-to have and to hold the same to him, his heirs, executors, and administrators and assigns, forever, provided he pay to my daughter Marietta five hundred dollars one year after my death. Item 3. I give and bequeath to my son George Washington the remainder of my farm, herein already described, after the forty acres are cut off; also all machinery, farming utensils, wagons, buggies, etc., etc., that may be here at my decease,-to have and to hold the same to him, his heirs, executors, and administrators and assigns, forever, provided the said Geo. Washington pay to my son Charles Irwin five hundred dollars, to my son William Henry five hundred dollars, and to my daughter Frances Christiana two hundred dollars, to be paid to them, respectively, one year after my death; and be it further provided that the said George Washington give to his mother onefourth of all the grain and fruit, in the bushel, raised on the above-mentioned portion of the farm as long as already herein stated; and that he keep and take care of her cows and horse; and that he take care of and provide all things needed for the comfort of his mother during her lifetime. Item 4. I give and bequeath to my daughter Frances Christiana, in additior to the two hundred dollars she is to receive from my son

George Washington, the small tract of land situated in Wayne township, Crawford Co., Pa., and bounded as follows: On the north by land of Solomon First; on the east, by land of Frank Douglas; on the south, by a public road and on the west by land of Solomon First,-containing six acres; to have and to hold the same to her, her heirs, executors, administrators, and assigns, forever.. And, lastly, I do nominate and appoint my sons George Washington and Peter Augustus to be the executors of this, my last will and testament."

McCalmont & Osborne, for appellant. Geo. S. Criswell, for appellee.

MITCHELL, J. The language of the will in items 1 and 3, taken literally, is inconsistent, as the first gives the dwelling house expressly to the widow for life, followed by the gift to the daughters, whatever may be its extent, while the other gives it by description, necessarily inclusive, to his son George. But it is manifest that no such inconsistency was in the mind of the testator, and hence we must seek his intent by an examination of the whole will. It is true that, if two clauses in a will are absolutely repugnant, the latter must prevail, even to the total exclusion of the first; but exclusion for repugnance is a principle of construction only to be invoked as a last resort, after all efforts to reconcile and give harmonious meaning to both have failed. Taking the whole will of Peter Stoyer together, it is clear that his first purpose was to make provision for his wife by giving her the house in which they had been living, and everything therein, for her life, with a horse, cows, and a share of the grain, fruit, and garden stuff for her support. After this first purpose, it is reasonably certain that his general intent was to divide his farm between his sons Peter and George, charging the portions in their hands with specified sums in favor of his other children. In carrying out this scheme he gives 40 acres from the east end of the farm to Peter, together with "the adjoining dwelling house, in which my son George Washington is now living," and "the remainder, * * * after the forty acres are cut off," to George. This last devise covers the dwelling house previously given by the first item in these words: "To my beloved wife, the dwelling house in which we are now living, and all there is therein, to have and to hold the same until her death, when it shall go to my two daughters, Marietta and Frances, with the exception of the organ, which shall go to my son Charles." So far as the gift to the widow is concerned, there would be little difficulty in reconciling the two devises by construing the later one to be the remainder in fee after the life estate previously given to the widow. But what did the testator mean by "it," which is to go to the daughters on the mother's death? Grammatically, "it" would seem to refer to the house; but the testator

certainly did not mean the house alone, for he excepts the organ, which can only go as part of the contents. If he meant the house and its contents, then "it" was an incorrect word to express his meaning. Did he intend to include the house at all? "It" is not a correct word to describe the contents of the house, but it is no worse for that purpose than to describe both house and contents. The grammar is faulty, whichever meaning we give it. Returning to the general intent, we observe that there were two houses on the farm,-one in which testator lived, and the other in which George lived. Both were upon the part devised to George, but the one in which he was living is specifically given to Peter. If the other is given to the daughters after the mother's death, then George is left in the position of having no house, though he is given a farm which has two houses upon it. But the objection to this view does not rest solely on the improbability of such a division of the estate. By item 1 the widow is expressly to have the dwelling house for life, and a share of the crops, etc., "until she shall no longer be able to take care of herself, and must be kept, cared for, and boarded by my son George, as hereinafter stated;" and by item 3 George is to give his mother her share of the crops "as long as already stated, and keep and take care of her cows and horse, and take care of and provide all things needed for the comfort of his mother during her lifetime." Where is he to keep, care for, and board his mother, except in the house which she is to have for her life, but which is on his farm, and is included in the devise to him by item 3? There is no construction of this will which is entirely free from objection. The one which would make the word "it," in item 1, refer correctly to the house alone, is rendered impossible by the next clause, which, by express mention of the organ, shows conclusively that the testator did not mean the house alone; the next, which refers "it" to both house and contents, is opposed to the clear general intent to divide the farm between Peter and George, and makes no better grammar than the third, which refers "it" to the contents of the house only, and is supported by the general intent, and also by the specific provisions in regard to the widow and George's care of her. We are of opinion that this last presents the least difficulty, and must be adopted. The house was the widow's for life, and at her death it went to George in fee, while its contents went to the daughters. Judgment affirmed.

HURLEY et al. v. JONES. (Supreme Court of Pennsylvania. Nov. 12, 1894.)

TRESPASS-FILLING IN ANOTHER'S LOT-SETTING OFF BENEFITS.

Where defendant filled in plaintiffs' lot without their consent, and thereby destroyed

their fence and certain vegetables, plaintiffs are entitled to recover any actual damages they suffered by reason of defendant's trespass, and any advantage to the lot arising by reason of such filling in is not to be considered in estimating plaintiffs' damages.

Appeal from court of common pleas, Allegheny county.

Action by John Hurley and others against Evan Jones in trespass for damages. Judg. ment for plaintiffs, and defendant appeals. Affirmed.

This was an action of trespass, brought by the plaintiffs against the defendant to recover damages alleged to have been done to plaintiffs' property by filling in of dirt thereon. This property is situate at the corner of Ebert and Omega streets in the city of Pittsburgh. At the trial, plaintiffs offered evidence to show that defendant, while engaged in grading Omega street for the city of Pittsburgh, broke down the fence around plaintiffs' lot, and filled in that portion there. of which was below the grade of the street to a depth sufficient to bring it nearly to the level of the street. The depth of earth filled in on plaintiffs' lot varied from 11 to 3 feet. No dirt was filled in on any portion of the lot that was above the grade of the street. This was a permanent fill. The space covered by this fill was about 40 by 75 feet. In making this fill certain vegetables growing on plaintiffs' lot were injured. The defendant introduced evidence to prove that it was a benefit to plaintiffs' lot to be filled in so as to bring it to the grade of the street, and that the market value of the property was thereby increased; and contended that, as plaintiffs' declaration claimed damages for the depreciation in value of their premises, if the acts of defendant at once caused an injury and conferred a benefit, the proper measure of damage was the net result of the action complained of, and that, if the benefits to plaintiffs' lot equaled or were greater than the damage done, there could be no recovery by plaintiffs for more than nominal damages. The court, however, in the general charge held that plaintiffs were entitled to recover from defendant the value of their fence and vegetables if the trespass was unauthorized, and that the jury could not take into consideration any advantage to plaintiffs' lot which might arise from the acts complained of. This ruling is the subject of exception.

Charles W. Jones, for appellant. George N. Chalfant, for appellees.

PER CURIAM. The defendant's point was properly refused by the learned court below. This was not a condemnation proceeding, but an ordinary action of trespass for injury to the plaintiffs' close. The plaintiffs' were entitled to recover any actual damages they suffered by reason of the trespass of the defendant, and they complained of the destruction of their vegetables and

1. Four brothers erected in the center of a cemetery lot, which they had jointly purchased, a monument, with its four sides facing the corners of the lot. On each side of the monument was inscribed the Christian name of one of the brothers, the space opposite the name being set apart as a burial place for his family. Their father and mother were buried at opposite corners of the monument. Held, that the whole lot was a family lot, and therefore one brother could not sell his interest in the lot to a stranger, so as to authorize him to bury therein, without the consent of the other brothers, a person not belonging to the family.

2. Where a widow buries her sister and mother in the cemetery lot of her husband's family, without opposition on the part of his family, they cannot object, after a lapse of 10 years, that such burial was without their consent.

3. Where, in an action for defacing a monument in a cemetery by substituting for a name thereon that of defendant, defendant denies having done so, and a witness testifies that he himself did so of his own authority, testimony of two persons that they visited the monument after the time the witness said he had changed the name, but did not notice the change, does not authorize a finding that defendant made the change.

Appeal from court of common pleas, Allegheny county.

Bill by James C. Lewis against Rachel Walker, for whom were substituted her executors, W. W. Lewis and another, to enjoin defendants from interring bodies in a certain cemetery, and to compel the removal of certain bodies therefrom and the erection of a new monument thereon. From the decree, plaintiff appeals.

The opinion of the lower court was as follows (White, J.): "The deed from the cemetery company, of March 19, 1856, to George Lewis, Henry H. Lewis, Lewis W. Lewis, and James C. Lewis, 'to them, their heirs and assigns, forever,' conveyed a fee-simple title; to each, the one-fourth undivided interest. But under the act of assembly incorporating the company, with the rules of the company included in the deed, and made conditions of the conveyance, the use of the lot was limited solely for burial purposes. That the lot was purchased as a family burial lot for the Lewis family is manifest from the deed and the subsequent arrangement by the brothers. A monument was erected, at the joint expense, in the center of the lot, the four sides facing the four corners, and each side inscribed with the name of one of the brothers. The corner space opposite the name was set apart as a burial place for that family. The father and mother were buried

at the two opposite corners of the monument, thus placing them partly in each of the four divisions, and clearly indicating the family character of the entire lot. They were parental ties binding together the four families. The arrangement did not make a parol partition of the lot. It did not affect the title or the uses for which the lot was purchased and dedicated. The title still remained in the four brothers as the joint owners of the entire lot. It was still the family burial lot. The owner of the burial lot may doubtless permit the interment of any relative, or even a stranger, in his lot. No rule or regulation of the company has been referred to which prohibits that. But, in the case of two or more joint owners, no one has that right; it would require the consent of all. George Lewis, therefore, nor his widow, had any right to authorize the interment in their portion of the common lot of any person not a member of the Lewis family, without the consent of the other joint owners. After the death of George Lewis, his widow, in 1866, buried her mother, Eliza Walker, in the George Lewis corner of the lot, and, in 1872, buried her sister, Jane Walker, in the same portion. It does not appear that any objection was made to their interments at the time, or at any time. until after the widow and children conveyed their interest in the common lot in 1890. On these facts, it is fairly to be inferred that the other joint owners consented to their interments, or at least had no objections to them. After the lapse of these years, it is too late to raise that objection. Whether the widow of George Lewis, after she purchased another lot, had the right, as widow, to remove the bodies of her husband and children, is not material in this case. It did not in any way affect the rights or interests of the other joint owners. The release or quitclaim deed of the widow and children of George Lewis to Miss Rachel Walker, of October 23, 1890, conveyed 'all their undivided interests of, in, and to lot No. 52, section No. 21, Allegheny Cemetery.' It was not a conveyance of any part of the lot, but an undivided one-fourth interest in the whole lot. Doubtless, she took the legal title to the undivided one-fourth. But she took a legal title, subject to all the trusts and conditions attached to the lot. It was a burial lot of the Lewis families. She had no right to bury any person there, not of the Lewis family, without the consent of the other joint owners. She did not bury any person there after the date of the deed. she died in July, 1893, after the original bill in this case was served upon her, and her executors, W. W. Lewis and Thomas Car others, buried her there, and subsequently put up the tombstones; and this was done after express notice to them not to do so, for which the supplemental bill was filed. The master finds that the defacement of a central monument-the cutting off of raised

But

letters-was done by Rachel Walker, or at her instance. We do not think this finding is sustained by the evidence. Miss Walker, in her answer, expressly denies it. W. W. Lewis, in his testimony, said that he did it, and that Miss Walker had nothing to do with it. The only evidence to the contrary is the testimony of W. A. Lewis and C. L. Lewis, who said they visited the premises in October, 1891, when they did not see any defacement, and believe nothing of the kind had then taken place. This was after the date when W. W. Lewis said he did it. The master thinks W. W. Lewis must be mistaken as to the date, and it was done after W. A. and C. L. Lewis had inspected it. This we do not consider sufficient evidence to overcome the responsive answer of Miss Walker and the positive testimony of W. W. Lewis. The defacement complained of-simply cutting off the raised letters-is hardly such a defacement as requires a new monument. Nothing was done to these sides facing the graves of the other three families. On this side the George Lewis side-cutting off the raised letters, simply, leaves a smooth, level surface. But, in any event, Miss Walker is not responsible for it. W. W. Lewis is responsible for it. Whether he did right or wrong in doing it, this is not maintained in this case. It was done by him personally, and not as executor, and before he was a party to this proceeding. If he did so wrongfully, it was a trespass for which he is answerable. An injunction should be granted restraining the defendants and all claiming title from Rachel Walker from future interments in said lot, or erecting any tombstone or otherwise interfering with the lot, without the consent of the other joint owners; and that the executors of Rachel Walker (W. W. Lewis and Thomas Carothers) be required to remove the bodies interred since October, 1891, and all tombstones, etc., erected since that date. All exceptions to the master's report in harmony with the views expressed in this opinion are sustained, and all others overruled. Let decree be drawn accordingly."

John D. Shafer, for appellant. W. B. Rodgers and J. H. Beal, for appellee.

PER CURIAM. After a very patient examination of this case, we are convinced the opinion of the learned court below ac complishes absolute justice between these litigant parties, and on that opinion we affirm the decree. The decree of the court below is affirmed, and appeal dismissed, at the costs of the appellant.

LEWIS v. LEWIS et al.

(Supreme Court of Pennsylvania. Nov. 12, 1894.)

Appeal from court of common pleas, Allegheny county.

Bill by James C. Lewis against W. W. Lewis and Thomas P. Carothers, executors of Rachel Walker, and another. From the decree, defendants appeal. Affirmed.

For opinion of the lower court, referred to in the opinion, see preceding case (30 Atl. 500), which was an appeal by plaintiff in the same suit.

W. B. Rodgers, for appellants. John D. Shafer, for appellee.

PER CURIAM. After a very patient examination of this case, we are convinced that the opinion of the learned court below accomplishes absolute justice between these litigant parties, and on that opinion we affirm the decree. The decree of the court below is affirmed, and appeal dismissed, at the costs of the appellants.

COMMONWEALTH ex rel. BOYLE, County Commissioner, v. MERCER et al., County Commissioners.

(Supreme Court of Pennsylvania. Nov. 12, 1894.)

COUNTIES-EMPLOYMENT OF CLERKS AT FIXED SALARIES.

Act 1871, § 9, provides for a county salary board, which shall fix the number and the salary of the clerks required by officers whose salaries are fixed by the act; Act 1872, § 6. makes the county commissioners salaried officers; and Act Feb. 20, 1873, provides that the salaries payable to the different officers of Allegheny county and their clerks should be payable monthly, and that the salaries of the clerks should be fixed as provided by Act 1871, § 9. Held, that the commissioners could have the work of transcribing the registry and the treasurer's book, and of extending taxes, etc., done lowest bidder, as provided by Act May 1, 1861. by clerks at fixed salaries, instead of by the

Appeal from court of common pleas, Allegheny county.

Petition for a writ of mandamus by the state, on the relation of Dennis J. Boyle, county commissioner of Allegheny county, against Robert E. Mercer and another, commissioners of Allegheny county. From a decree granting the writ, defendants appeal. Reversed.

N. S. Williams, for appellants. Wm. Yost and W. J. Brennen, for appellee.

DEAN, J. Dennis Boyle, Robert E. Mercer, and James G. Weir compose the board of county commissioners for Allegheny county. On the 9th of January, 1894, by a vote of Mercer and Weir, a majority of the board (against the protest of Boyle), joined by James A. Grier, county controller, making up what is known as the "Salary Board," the following resolution was passed: "That they employ clerks, when necessary, to do the transcribing of registry books and the treasurer's books, and extending taxes, and writing shelve and school books, at the sum of $2.50 per day. The number not to exceed 40 clerks." Mr. Boyle, believing, that this mode of having the work done was contrary to law, petitioned the court below for a mandamus directed to the other two commissioners, commanding them to join with him

in letting the work to the lowest bidder, which the court awarded. From that decree the commissioners take this appeal.

There is but a single question in the case. Are the commissioners to have this work done under the act of May 1, 1861, or under the act of April 6, 1871, and its supplements? The act of 1861 provides that all contracts made by the commissioners, involving an expenditure of more than $20, shall be in writing, and that all contracts involving an expenditure of more than $100 shall be made with the lowest and best bidder, after due notice to be published. The ninth section of the act of 1871 enacts that "the county controller and the county commissioners, shall be and they are hereby construed a board, whose duty it shall be to meet together from time to time, as they may be required by any of the officers whose salaries are established by this act, for the purpose of ascertaining and determining the number of clerks and deputies required for the proper dispatch of business by each such officer, and also for fixing the salary of each said clerk and deputy." The act further provided that if either of said officers alleged the number of clerks fixed for his office was too few, or their compensation too small, he should have an appeal from the decision of the salary board to the court of common pleas. This was followed by the supplement of the 6th of March, 1872, in section G of which it is provided that the county commissioners shall each receive, in lieu of all other compensation, an annual salary of $2,000. Then followed another supplement, that of 20th of February, 1873, which enacted that all salaries payable to the different officers of Allegheny county and their clerks should be payable monthly, and the salaries of clerks should be fixed as provided by the ninth section of the act of 1871. It seems to us clear that the act of 1871 directed that the salary board should fix the number of clerks to be employed by all salaried officers, and their compensation; that the act of 1872 declared the office of county commissioner a salaried office; and the act of 1873, in effect, declared the number of clerks in that office, and their compensation, should be determined by the salary board, as provided in section 9 of the act of 1871. Then came the general act of 1876, and supplements, which, in substance, carried into effect section 5, art. 14, of the constitution, by extending over the whole state the provisions of the local acts for Allegheny county. the general act of 1883 is a re-enactment of the material provisions of these acts, so far as relates to clerks and their compensation. The act of 20th February, 1873, by directing that all salaries should be paid monthly, and all clerks' salaries should be fixed as specified in section 9 of the act of 1871, after the office of county commissioner had been constituted a salaried office by section 6 of the act of 1872, took the clerks of this office out of the provisions of the act of 1861, and placed

And

them, as to number and compensation, under the decision of the salary board.

From the facts established by the petition and answer, it is very doubtful if the kind of work to be done by these clerks was intended to be let out by contract, under the seventeenth section of the act of 1861, even if subsequent legislation had not clearly taken it out of the class of "other writing or work" therein specified. In many of the counties of the state now, where the population is less than 150,000, without being directed by law so to do, the county commissioners let out, by contract, writing. Transcribing wornout and illegible dockets, records, and papers can be let out advantageously by contract. But the character of this work in question, which must be done within a limited time; its uncertainty as to quantity; the necessity of constant supervision while in progress,all point to the necessity of doing it by clerks appointed for that special duty. A banker might as well let out to the lowest bidder the keeping of journals and ledgers. He would doubtless get lower bids than the aggregate salaries of his clerks amount to, but he would hardly find there was much of a saving in the end. But, whether the act of 1861 could be held to include this work or not, subsequent legislation has, in distinct, positive terms, made other provision for it, and to this extent that act is not operative. The learned judge of the court below, in his opinion, has not noticed the acts of March 6, 1872, and February 20, 1873. They were not, probably, brought to his attention. They are conclusive against the construction and effect given by him to the act of 1861. There fore, the decree is reversed and petition dismissed, at costs of the county of Allegheny.

MANSFIELD COAL & COKE CO. v. BOICE et al.

(Supreme Court of Pennsylvania. Nov. 12, 1894.)

WILLS-CONSTRUCTION-ESTATE CONVEYED-BONA FIDE PURCHASER.

Where a testatrix, who had only a life interest in lands, devised them to one of the heirs, and bequeathed to the other heirs money in lieu of any interest therein, the devisee gets no title, by the election of the other heirs to take under the will, which can be set up against a subsequent purchaser for value without notice.

Appeal from court of common pleas, Allegheny county; McClung, Judge.

Ejectment by the Mansfield Coal & Coke Company against Parker L. Boice and others. The court directed a verdict for plaintiff, and from judgment entered thereon defendants appeal. Affirmed.

A. Leo. Weil, for appellants. Dalzell, Scott & Gordon, for appellee.

PER CURIAM. The difficulty with the case of the defendants is that Priscilla Boice,