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Weber v. Gibney. uously occupied by her, and the complaint was of an unpleasant smell during the few weeks that the water from a urinal ran into her premises. The allegations on the trial were that by reason of percolations of water, &c., from a toilet on the premises of the defendant, the damages were caused.

The property of the plaintiff and that occupied by the defendant adjoined each other and were located on Locust Street, in this city. Mrs. Weber fixed the injury as having begun in the second week of May, 1917, whereas the paperhanger testified that he placed tin upon the wall and did the papering on May 10, 1917. The plaintiff's husband stated that the condition lasted six or eight weeks. Alderman Doebler testified that he saw a wet spot on the wall, about two feet square, but smelled no odor.

It appeared that, in the defendant's building, the laundry business had been conducted for a long time. The plaintiff stated that it was first carried on by Mr. Gibney, and afterwards by Robert W. Groezinger and Mr. Gibney, under the firm name of U. G. Gibney & Company. She was not very clear as to who was conducting the business at the time of the alleged injury; but, as it was shown that Mr. Gibney had ordered the toilet to be put in, the Court submitted the question to the jury as to whether Mr. Gibney or the firm had caused the injury. It was admitted that, under the instructions of Mr. Gibney, Harry L. Snyder had placed a ladies' toilet on the second floor of their building, next to Mrs. Weber's, and that the water tank was fastened to a board against the wall, and the soil pipe ran down about seven inches from the wall and then to the southwest, where it entered into the main

The property was purchased by Robert W. Groezinger and U. G. Gibney as tenants in common on August 22, 1906, and has been held by them in that way ever since. It was testified on behalf of the plaintiff that there was a smell like urine in her house, and that bricks were taken out, eighteen inches by two feet, in the nine-inch wall, and water then could be seen dripping down along the wall. There was also evidence as to damage to the cellar and girders, but no price was fixed thereon. Under this state of facts, the court submitted the question to the jury as to whether or not the defendant individually had brought about injury to the plaintiff, and, if so, to what extent, not exceeding, however, the cost of replacement, and the jury were instructed that that was all the damage that the plaintiff was entitled to recover. However, against these instructions, a verdict was rendered as is above stated. In so doing, I am of the opinion that the jury, instead of giving compensatory damages, imposed punitive damages, which it was improper for them to do, even if Gibney solely was the cause of the injury.

For this reason I am of the opinion that the verdict should be reduced to the sum of $21.00 , with interest from May 10, 1917, making a total of $24.73, and if the plaintiff, within ten days, remits so much of the verdict as exceeds that sum, the rule for a new trial will be discharged, otherwise it will be made absolute.

The rule for judgment for the defendant non obstante veredicto is discharged.

sewer.

Orphans' Court of Lancaster County

Estate of Lydia B. Greiner, dec'd. Bequest to class

Trust Interest due cestui que trust from debt of testator Subsequent award of to executor of cestui que trustDebt owing by legatee-Statute of limitations.

Where a testatrix bequeathed her property to her husband for life with remainder to her “brothers and sisters in equal shares and to their heirs and assigns forever," children of brothers and sisters of the testatrix who died before her will was written cannot participate in the remainder.

Interest due and payable to a cestui que trust at the time of his death on a debt owing to the testatrix and subsequently collected, should be awarded to the executor of the cestui que trust, although such executor did not take credit for it in his account for his decedent who was executor of the testatrix.

The statute of limitations does not bar this debt, as it was reduced to a judgment by the testator's executor.

One coming into court asking for a legacy must first apply his debt in payment of it.

Exceptions to adjudiction. April Term, 1919, No. 76.

B. Frank Kready and Oliver S. Schaeffer, for exceptions.

Oliver S. Schaeffer and Isaac R. Herr, for accountant.

October 21, 1920. Opinion by SMITH, P. J.

The will of the testatrix is as follows:

“ First I give devise and bequeath all my property both real and personal, (that is the use and income thereof) unto my husband Emanuel Greiner, during his natural life and what remains after his death I give and devise and bequeath unto my brothers and sisters in equal shares and to their heirs and assigns forever. I hereby appoint as the executor of this my will my husband Emanuel Greiner.”

Emanuel Greiner is dead and Howard E. Ebersole is the executor of his will. The refusal to include as legatees children of brothers and sisters of the testatrix who had died before her will was written is assigned as error. The testatrix distinctly defines as her legatees those embraced in a class distinguished as brothers and sisters. It is not contended that the exception is of that class, but as only the children, or descendants, of brothers and sisters who died since the testatrix, have been declared to be the beneficiaries, others, as near of kin, being the children of brothers and sisters who died before the will came into existence naturally think they have not been fairly treated, and have a feeling that by some process of reasoning an intent should be discovered by which the exceptant could be recognized as a legatee, that the principle which would govern in a case of intestacy should be applied. The testatrix's words, however, reveal no such intention. Harrison's Est., 10 D. R. 45, 202 Pa. 331 ; Moses' Est., 3 Pa. Sup. Ct. 93; Todd's Est., 33 Pa. Sup. Ct. 117; Fetherolf's Est., 29 D. R. 479.

Exception is taken to the award of $850.00 to Howard E. Eber-
VOL. XXXVII, No. 56

Estate of Lydia B. Greiner, dec'd. sole, executor of the will of Emanuel Greiner, deceased, to whom was given for life the income of the estate. It is admitted that this interest accrued after the death of the testatrix and during the life of Emanuel Greiner. It became by reason of a note held by the testatrix against her brother, John B. Myers, and which was reduced to a judgment for $1407.08 by her executor. John B. Myers, who died since the testatrix, had a vested interest in the remainder which was subject to the debt owing by him, amounting to $1750.00, of which $850 is interest.

That one coming into Court asking for a legacy shall first apply his debt in payment of it, is a principle of equity which we understand is not disputed. Thompson's App., 42 Pa. 345; Acheson's Est., 67 Pitts. L. J. 483.

When the testatrix died John B. Myers had no available means with which to meet his obligations, and when he died only a small percentage of it was paid. The debt liquidated at the death of Emanuel Greiner, and the interest continued to accrue, and coincident and coextensive therewith vested in Emanuel Greiner. That interest which is due and payable to a cestui que trust at the time of his or her death and subsequently collected by the executor of the will of the testator who had created the trust should be awarded to the legal representative of the estate of the cestui que trust is not questioned. Here the successor to such an executor has come into possession of such interest. After the death of Emanuel Greiner the executor of his will exhibited an account of the administration and conservation of the estate of the testatrix by Emanuel Greiner, who had been the executor of her will, in which he did not take credit for the amount of interest due on the judgment against John B. Myers and which he is now claiming. He chose to have the Court pass on his claim rather than arbitrarily take credit for a sum arrived at by his own computation, especially in view of the conflicting conditions which it was necessary to reconcile to approximate the amount and which finally was arrived at by agreement.

Both accounts are within the jurisdiction of the Court and subject to its power to revise. It would be a lamentable exhibition of the weakness of the equity powers of the Court if no remedy rested in it to overcome a technical obstacle springing from a commendable informality.

The application of the statute of limitations as a bar to the debt cannot be entertained for the reason it is embodied in a judgment obtained by process in open court, and appears on the record of the Court of Common Pleas of Lancaster County to December Term, 1901, No. 4, and interest grows perpetually during the life of a debt. DeHaven v. Bartholomew, 57 Pa. 126; Stewart v. Byers, 63 Pa. 230; Richards, Admnr. v. Bickley, Admnr., 13 S. &. 395; Dillebaugh's Est., 4 Watts 177.

By the petition for distribution it appears that Annie A. Myers, who was the wife of Christian Myers, was dead, but at the audit this was changed and as a fact it was spread upon the notes tht she was then living, and therefore her interest in this estate was awarded to her. It is now known that she was then dead, and the amount of $887.29 Estate of Lydia B. Greiner, dec'd. awarded to her is now directed to be paid to Mary S. Myers, administratrix of her estate.

The exceptions are dismissed and the adjudication is confirmed absolutely

Court of Common Pleas of Lancaster County

Elizabeth L. Gardner et al. v. Lancaster Sanitary Milk Co.

Damages for being struck by milk wagon-Negligence of driver-Con

tributory negligence-Judgment for defendant n. 0. v.

In an action to recover damages for an injury to the plaintiff from being struck by a milk wagon at which she had purchased milk and turned to leave as the driver started his horses, judgment for the defendant n. 0. v. should not be entered on the ground that the plaintiff, in order to have been struck, must have been standing between the front wheel and the step, and was therefore guilty of contributory negligence, where it was possible for her to have been injured without standing in the dangerous place, and the jury found for the plaintiff after instructions that if she was standing there when struck she could not recover. In deciding whether judgment should be entered for a defendant n. 0. v.

the controlling question is, would binding instructions for the defendant have been proper if the plaintiff was given the benefit of every favorable fact or inference.

Rule for judgment for defendant n. 0. v. September Term, 1917, No. 31.

John A. Coyle, for rule.
E. M. Gilbert and John E. Malone, contra.
January 17, 1920. Opinion by HASSLER, J.

This is an action to recover damages for an injury caused by the negligence of a driver, in the employ of the defendant company, in charge of a wagon belonging to it. The trial resulted in a verdict for the plaintiff, and we are now asked to enter judgment for the defendant n. o. v. for the reason, as alleged, that the evidence conclusively shows that the plaintiff was guilty of contributory negligence.

At the trial, Elizabeth L. Gardner, one of the plaintiffs, testified that she was purchasing milk from the defendant's wagon, and that after she had obtained the milk, and had turned to leave the wagon, the driver in charge of it started his horse, the wheel struck her, and she was injured. The jury found these to be the facts, though her testimony was contradicted.

It is contended in this application that it was a physical impossibility for the plaintiff to have been hurt, as she says she was, unless she was standing between the front wheel and the step, an admittedly dangerous place; that if she was standing in that dangerous place when she was hurt, she was guilty of contributory negligence, and is not entitled to recover, and that judgment must therefore be entered for the defendant, non obstante veredicto.

Elizabeth L. Gardner et al. v. Lancaster Sanitary Milk Co. In submitting the case to the jury, we instructed them that if the plaintiff, Elizabeth L. Gardner, was standing between the front wheel and the step, she was guilty of contributory negligence and could not recover. In this instruction we reviewed and called attention to all the testimony on the subject. The jury found she was not standing in that place, as they found she was not guilty of contributory negligence, and we think there is sufficient testimony to justify their finding.

The wagon has a step on its side extending out six inches from its body twenty and one-half inches from the ground. There is a space of sixteen inches between it and the front wheel, and a space of only one and one-half inches between it and the rear wheel. The step extends one to one and one-half inches beyond the rim of the wheel. The photograph, proven to be correct, shows the step to be about the same height as the hub of the rear wheel, and that it does not extend out as far from the wagon as the hub does.

Elizabeth L. Gardner, one of the plaintiffs, testified at first that she was in the space between the front wheel and the step, but later said she was not at that place, but was outside of the step. This she repeated and insisted upon. She says she turned to go away, but did not take a step, and while facing south the horse was started, and the wheel, not the step, struck her a little above the knee on the left leg, which is the one that would have been struck by the rear wheel if she was facing south, or away from the wagon.

The injury could have been caused either by the step or the hub of the rear wheel, as both are about the same distance from the ground and the same height as the place on plaintiff's leg which was struck. It could not have been caused by the rim of the wheel, as the step extended one and one-half inches beyond that, which would have prevented that part of the wheel from striking her. She testified that the driver started the horse, and turned sharply towards her. One or two steps of the horse, going straight forward, would have moved the hub of the rear wheel to where she was standing and struck her on the left leg about the knee. If the horse turned sharply towards the left, as she said in her cross-examination it did, either the step or the hub would have struck her at the same place. Taking either view of her testimony it is possible to find from it, that the accident occurred, as she said it did, without her having been standing in a dangerous place, and consequently she was not guilty of contributory negligence. It was not a physical impossibility. We are of the opinion that there was sufficient testimony to justify the jury in finding that she was not standing in the dangerous place, between the front wheel and the step, and, consequently, she was not guilty of contributory negligence.

In Smith v. Standard Steel Car Co., 262 Pa. 550, it is stated that the controlling question in entering judgment for a defendant n. 0. 7. is, would binding instructions for defendant have been proper if the plaintiff was given the benefit of every fact and inference of fact pertinent to the issue which might legitimately be drawn from the evidence. Judge Moschzisker says: “Again, when we consider the rule that, where the issue of contributory negligence has been submitted to the

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