ment for plaintiffs. Defendant appeals. Affirmed. The items of the will referred to in the opinion are as follows: Item 10. All the rest❘ residue, and remainder of my property, real, personal, and mixed, either now owned or hereafter to be acquired by me, I give, devise. and bequeath to my children, to be held in common by them or to be equally divided between them. Item 11. If both of my children should die intestate and without lawful heirs, I direct that all my estate given by this will to my children and intended for them if they should live, shall at the death of the last child be divided into equal parts, one part or moiety of which I give, devise, and bequeath in fee simple to my nephews and nieces, and to their heirs forever, and the other part or moiety I give, devise, and bequeath to John H. B. Latrobe, president of the before described Colonization Society, and to his successor and successors in office, în trust to be applied by the direction of the said society for the exclusive purpose of aiding in removing to Africa the colored population of the United States. Act April 8, 1833, § 9, provides that all devises of real estate shall pass the whole estate of the testator, though there be no words of inheritance, unless it otherwise appears in the will that testator intended to devise a less estate. G. Heide Norris, for appellant. Wm. Wynne Wister, Jr., for appellees. MITCHELL, J. The tenth item of the will passed a fee simple to testator's children, under the act of 1833, unless it appear that he intended to devise a less estate. The only question is whether such intention appears in item 11. The language of the latter item would be sufficient to sustain an executory devise if such was the testator's intent, but such an intent must appear from the words; it will not be presumed. So far from appearing, however, such intent is negatived by the language used. The expression, "if both my children should die intestate," is a clear recognition of a fee simple, to which the right of testamentary disposition is incident. The only other implication that could arise from it would be a power of testamentary appointment. But this implication is no stronger than the other, and the fee simple which the statute creates can only be set aside by an actual intent which appears in the will, superior to any other construction. We have next the words, "and without lawful heir," which clearly means "without issue," for the devise over is to the testator's nephews and nieces, who would be "lawful heirs" of his children had he meant those words in their proper sense. But "die without issue," as the contingency in which a new devisee is to take after a previous devise in fee, means "die in the lifetime of the testator," and, if the devisee survive, the estate he takes is absolute. Mickley's Appeal, 92 Pa. St. 514; Stevenson v. Fox, 125 Pa. St. 568, 17 Atl. Rep. 480; King v. Frick, 135 Pa. St. 575, 19 Atl. Rep. 951. And that this was the actual intent in the present case appears conclusively from the words with which the devise over are introduced, “if ** I direct that all my estate given by this will to my children. and intended for them if they should live, shall," etc. If they should live till when? Certainly till the will becomes operative by the death of the testator. No other period can reasonably be assigned as that which the testator had in contemplation. This construction is in entire harmony with such of our cases as are closely analogous, especially Karker's Appeal, 60 Pa. St. 141, and Edwards v. Barnard, 84 Pa. St. 184. These two cases would govern the present absolutely but for the fact that in both of them the will gave a fee expressly, and the decision, therefore, was, complicated partly with the rule that repugnant conditions subsequent cannot be attached to a fee. But on the main questions raised there is no difference between a fee expressly given and a fee presumed by the statute. The latter, as well as the former, can only be defeated by a subsequent provision which shows clearly that the testator intended not to give a fee, though he used language which, standing alone, would have been effective for that purpose. No such intent can be fairly gathered from the present will, and therefore the fee given by item 10 is unaffected by the subsequent clause. Judgment affirmed. BUTCHERS' ICE & COAL CO., Limited, v. TRESPASS BY CITY-OBSTRUCTING ACCESS TO 1. In an action by the owner of a wharf for injuries to his property by the building of a sewer by the city, whereby the filth was de posited in the dock, obstructing access to the wharf, plaintiff can show how his property was affected by the sewer, and that the damage could have been avoided if the city had extended the sewer on its own property further into the river. 2. Under Const. art. 16, § 8, providing that municipal corporations taking private property for public use must make just compensation for property taken or injured in making im provements, the city is liable to the owner of the wharf, though the sewer is on the city's land, and opens into a dock adjoining a wharf belonging to the city, and the land on which the sewer was built was not taken by the city in the exercise of the right of eminent domain, and there was no want of skill in the construction of the sewer. Appeal from court of common pleas, Philadelphia county. Action by the Butchers' Ice & Coal Company, Limited, against the city of Philadelphia to recover damages for injuries sus tained by the plaintiff by reason of the alleged illegal and unskillful manner of the construction of a sewer, and the improper and unlawful place at which said sewer had been made to empty by the city of Philadelphia, and the filling up of the plaintiff's dock by the sewage discharged from the said sewer. Judgment for plaintiff. Defendant appeals. Affirmed. The following are defendant's specifications of error: "(1) The court below erred in overruling the objection of defendant to the following question, submitted by the plaintiff to C. E. Albright, a witness, as appears in the evidence on page 35: 'Question. Now, I ask you, as an engineer, if the city had carried out on her own property to the end of her own wharf this sewer, would not the deposits have been swept up and down and away from this dock? (2) The court below erred in declining defendant's first point, as follows: 'If there has been no want of reasonable care and discretion or of reasonable skill in the execution of their power by the municipal authorities in the construction of this sewer, the city is not liable, and your verdict should be for the defendant.' (3) The court below erred in declining defendant's second point, as follows: Under all the evidence in this case, your verdict should be for the defendant.' (4) The court below erred in entering judgment for the plaintiff." Howard A. Davis, James Alcorn, and Charles F. Warwick, for appellant. Alexander & Magill, for appellee. MCCOLLUM, J. A considerable portion of the appellant's printed argument is devoted to the discussion of a question which is not on the record. There was no exception taken in the court below to the admission of the evidence in relation to the market value of the wharf property before and after the construction of the sewer, and consequently there is no specification of error in this court which requires us to consider whether such evidence was appropriate to the issue. The first specification complains that the objections to a question contained in it were overruled, but as it does not embrace the answer to such question it is a defective specification, which we would be justified in disregarding. Van Horne v. Dick, 151 Pa. St. 341, 24 Atl. Rep. 1078. Inasmuch, however, as we discovered the objections and answer in our perusal of the testimony printed in the appendix to the appellant's paper book, we will say that we think the objections were not well taken. It was competent, under the pleadings, for the appellee to show how its property was affected by the sewer, and that injury to the former could have been avoided by an extension of the latter on the property of the city to the end of its own wharf. The second specification is to the refusal of the court below to instruct the jury that. if there was no want of reasonable care or skill on the part of the municipality in the construction of the sewer, the verdict should be for the defendant. This specification may properly be considered in connection with the third and fourth specifications, because, taken together, they raise the question whether, in the absence of negligence, the city is liable for an injury to adjacent property caused by the construction of its sewers. The appellant contends that it is not responsible for such injury, and cites Malone v. City of Philadelphia, 2 Penny. 370, as authority for its position. In that case, as in this, a wharf property was materially injured by deposits of filth discharged into the river through a sewer constructed by the city. In each case the deposits were formed in the dock adjoining the wharf, and prevented the admission of vessels to it. But in Malone's Case the sewer was constructed prior to the constitution of 1874, and in conformity with the provisions of a statute which prescribed its course, while in this case it was constructed under an ordinance passed by councils in pursuance of a power conferred by the act of April 8, 1864, and after the adoption of the present constitution. In the first case the sewer was built in obedience to a legislative mandate, while the sewer in question was located and constructed by the city in the exercise of its discretion under the power conferred as above stated. The city owns the land and wharf immediately north of the appellee's property, and its wharf extends into the river 275 feet, while the wharf belonging to the appellee extends into the river but 162 feet. Between these wharves is a dock 60 feet wide, into which the sewer opens at a point 47 feet from the appellee's wharf, or 17 feet from the north line of their property. In this dock the deposits are formed which constitute the obstruction and produce the stench complained of. It is conceded that this condition is attributable to the construction of the sewer, and materially detracts from the value of the appellee's property. It was shown on the trial, and not denied, that the injury to its property might have been avoided by the extension of the sewer to the end of the city's wharf. Upon these facts, are the owners of the injured property without remedy? Must they convict the city of negligence in the construction of the sewer in order to maintain their action for the damages they have sustained by it? In addition to Malone v. City of Philadelphia, the appellant cites and relies on Carr v. Northern Liberties, 35 Pa. St. 324, Fair v. City of Philadelphia, 88 Pa. St. 309, and Collins v. City of Philadelphia, 93 Pa. St. 272, to support affirmative answers to these questions. A plain distinction appears between the cases last mentioned and the case under consideration. In the former the claims for damages were founded upon the alleged inadequacy of the sewers to carry off the surface water during heavy showers, and in the latter the claim rests on the undisputed fact that access to the appellee's wharf is obstructed by deposits of foul matter discharged through the sewer. These deposits are on the appellee's property, and the natural and necessary result of the location and construction of the sewer in question. It is a sewer through which the filth drained from a thickly populated portion of the city and a large manufacturing district is discharged. Its dimensions at the bulkhead or point of discharge are 7 by 11 feet, and its capacity is no greater than is required to properly carry off the filth from the district it drains. This filth is de posited in the dock by which the appellee have lawful access to their wharf, and, as we have seen, materially obstructs, if it does not actually cut off, such access. It seems clear to us that for the injury done to the appellee's property by the construction of the sewer the city is liable under section 8, art. 16, of the constitution, which provides that "municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements." This liability is for consequential damages, and is not affected by the fact that the sewer is on the city's land, and opens into a dock adjoining the city's wharf; nor is it necessary to the existence of the liability that the land on which the sewer was constructed should have been taken by the city in the exercise of the right of eminent domain. The specifications are overruled, and the judgment is affirmed. CO. (Supreme Court of Pennsylvania. Oct. 2, 1893.) TAXATION-EXEMPTION-PATENT RIGHTS-STOCK OF CORPORATION. A corporation issued certain stock to an inventor in consideration of the exclusive right, under his patents, to make and use, or license to be made and used, the inventions covered by such patents within certain specified territory; but no apparatus or tangible property, nor the use of any such property, was received for such stock. Held, that such capital steck was within the decisions which hold that no tax can be imposed by state laws on patent rights granted by the United States. Com. v. Philadelphia Co., 22 Atl. Rep. 843, 145 Pa. St. 142, distinguished. Appeal from court of common pleas, Dauphin county; John B. McPherson, Judge. Settlement by the auditor general and state treasurer of an account against the Philadelphia Company for tax on its capital stock. From a judgment reversing the action of the auditor general and state treasurer in set tling and entering an account against it for tax on such capital stock, and exempting the same from taxation, the commonwealth appeals. Affirmed. W. U. Hensel, Atty. Gen., and Jas. A. Stranahan, Dep. Atty. Gen., for the Commonwealth. M. E. Olmsted, for appellee. GREEN, J. We think the learned court below was entirely correct in its disposition of this cause. The third finding of fact was in the following words: "The defendant did not receive, either under the agreement above referred to, or in consideration of the $1,000,000 of capital stock issued in pursuance thereof, any manufactured apparatus or tangible property whatsoever, nor the use of such property, whether of the kind or description authorized to be made under said patents, or of any other kinds or description. The only consideration for which the said $1,000,000 of capital stock was issued was the exclusive right, under said patents to the defendants, to make and use, or license to be made and used, the inventions covered by said patents within the territory specified in said agreements. All the apparatus covered by said patents which has been at any time used by the defendant has been manufactured by itself or by others whom it has authorized to manufacture, and none of said apparatus has been obtained from the grantor in the said agreements, either under said agreements, or in any other way. When this case was here before, (145 Pa. St. 142, 22 Atl. Rep. 843,) it was decided upon the specific ground that it was not the patents, but the machines and apparatus of the patentee, that were sold to the defendant company. Our Brother Williams said in the opinion: "It will be seen, by reference to the contract and the findings of the court below, that the subject-matter of the sale or license by Westinghouse was not his patent, but his machines or apparatus, manufactured and ready for the trade. He did not sell his right as an inventor, but his goods as a manufacturer and owner, finished and ready for use." And because it was not the patents, but tangible property, that was sold, we held the whole of the capital stock was taxable, and declined to exempt the $1,000,000 of stock transferred to Westinghouse. On the hearing of the case at this time in the court below, additional testimony was introduced, which resulted in third finding of fact above stated, and the evidence justified the finding. The contracts themselves clearly provide only for the transfer of intangible rights, and not for tangible property, and the uncontradicted affidavit of the treasurer of the defendant company shows that no manufactured apparatus or tangible property of any kind was transferred to the defendant by the patentee. This being so, the case comes directly within the decisions which hold that no tax can be imposed by state laws upon patent rights granted by the United States. Com. v. Westinghouse Elec Appeal from court of common pleas, Dauphin county; John B. McPherson, Judge. Settlement by the auditor general and state treasurer of an account against the Edison Electric Light Company for a tax on its capital stock. From a judgment sustaining the company's exceptions thereto, and releasing it from payment of the taxes claimed, the commonwealth appeals. Affirmed. W. U. Hensel, Atty. Gen., and Jas A. Stranahan, Dep. Atty. Gen., for the Commonwealth. M. E. Olmsted and Saml. B. Huey, for appellee. GREEN, J. The fourth finding of fact by the learned court below, which is fully sustained by the testimony, declares that $35,000 in cash and 3,000 shares of stock were issued and paid by the defendant company to the Edison Electric Light Company of New York for certain rights under its patents within the city of Philadelphia, and that without these rights the defendant could not carry on its business and furnish electric light to its customers; also, that, "in consideration for said cash and stock paid to the Edison Electric Light Company of New York, the defendant did not receive any tangible property whatever, but merely certain intangible rights or licenses under said letters patent;" also, that "the defendant does not lease, from any persons from whom said licenses were obtained, any tangible property whatever, nor does it have in its possession any tangible property belonging to said persons." This state of facts brings the case within the principle that capital stock invested in patents or patent rights is not taxable under state laws, as established by our decisions in the cases of Com. v. Westinghouse Electric & Manuf'g Co., 151 Pa. St. 265, 24 Atl. Rep. 1107, 1111; Com. v. Westinghouse Air Brake Co., 151 Pa. St. 276, 24 Atl. Rep. 1111, 1113; and Com. v. Philadelphia Co., (in which the opinion has just been filed,) 27 Atl. Rep. 378. We are therefore of opinion that the learned court below was right in its ruling. Judgment affirmed. MCCOLLUM, J., not present. the final refusal of the company to transfer it to any persons but the executors, no damages can be recovered for the company's refusal to transfer it to the vendee of such executors, since they have impeached their own title, and since the company is entitled to demand evidence of authority to make a transfer before they permit it to be made. Mitchell, J., dissenting. Appeal from court of common pleas, Philadelphia county. Action by Ann L. Livezey and others against the Northern Pacific Railroad Company. From a judgment for defendant, plaintiffs appeal. Affirmed. Hood Gilpin, for appellants. Logan M. Bullitt and Richard C. Dale, for appellee. GREEN, J. This action is brought to recover damages for the wrongful refusal of the defendant company to transfer 100 shares of its own stock at the instance of the executors of the former owner. For the purpose of the present contention it may be assumed that the stock did really belong to Thomas Livezey, the decedent, in his lifetime, and at the time of his death, though the testimony of the plaintiffs casts serious doubt upon that subject. Assuming, then, that Thomas Livezey, the decedent, was the true owner of the stock, he executed a will which was duly probated after his death, in May, 1884. For more than six years after his death his executors, these plaintiffs, held the stock without selling it or makPresumaing any demand for its transfer. bly, therefore, its transfer was not needed for the payment of any debts, or, for that matter, of any legacies either, and in point of fact was not needed for either of these purposes. When the executors applied to have the stock transferred, it was in consequence of a sale of it having been made by them to a third person. In those circumstances it was not only the right, but the duty, of the defendant, to inquire into the right of the executors to make the sale. A copy of the testator's will was therefore requested by the defendant, and was furnished to them by the executors. When the will was examined by the counsel for the defendant, he was of opinion that the stock was held in trust by the executors during the life of the widow, and that they had no power to sell it, both because it was a part of the trust fund, and because it was a depreciated se curity, which the testator directed his executors not to sell, but to hold for a rise. The counsel for the defendant, however, offered to advise a transfer if the executors would make application to the orphans' court, and obtain a decree authorizing the executors to sell the stock, if the decree would be so drawn as to show on its face all the jurisdictional facts. A petition was subsequently presented to the orphans' court of Philadelphia county by the executors, asking for an order authorizing them to make sale of the stock, and to make a valid transfer thereof. The proceeding appears to have been ex parte, only, as neither the cestuis que trustent nor the defendant company were made parties. However, after this had been done, a copy of the order was sent to the defendant, together with an irrevocable power of attorney, signed by all the cestuis que trustent, and a further request to permit the transfer to be made, to which the counsel for defendant replied that he would lay the whole matter before the general counsel of the company, and, if they could see their way clear to make the transfer, they would direct it to be done. After this, on December 26, 1890, the counsel for the defendant, Mr. Stanton, wrote to the counsel for the executors, saying that, having consulted with the general counsel for the company, they had felt obliged to decline to advise the transfer of the stock for reasons which were stated at length. The substance of these reasons was that, by the will, Mr. Livezey gave all his property to his executors, in trust to pay the income to his wife during her life, and upon her death to divide it among her children, in the manner stated in the will, and that by the fourth article of the will he directed that no part of the corpus, or principal, of any part of his personal estate, should be given to his wife; that the reason for selling the stock given by the executors-that the stock was depreciating in value-was in hostility with the twelfth section of the will, which directed that the executors should not sell any of his stocks that were depreciating in market value, but should "retain the same, trusting to a rise;" that the defendant company had been furnished with a copy of the will, and therefore had notice of the trust, and were bound to refuse transfer except according to its terms; that they could not agree to the proposition maintained by the executors that they are to be treated as executors, merely, and not as trustees; and that, when a stockholder directs by his will that his stock shall be held in trust, the corporation is not at liberty to avoid his directions. Upon an examination of the will we feel obliged to say that these positions seem to be well taken. The second clause of the will does give the testator's property to the executors in trust for the purposes named in the succeeding clauses, one of which is that the income of the whole estate shall be paid to the widow during her life, and that after her death the estate is to be divided into five equal parts, which are then disposed of in favor of the children in the manner described in the will. Power is given to the executors to sell the real estate, and reinvest the proceeds according to the trust, but no power is given to sell the personal estate, and by the twelfth clause they are enjoined not to sell any of the stocks that are depreciating in value. It is not necessary for us to consider or decide now, absolutely, the question whether or not, if the proper parties were before us in a proper proceeding, instituted for the purpose, a decree should be made, empowering the executors to make sale of this stock, and directing the defendant company to make the necessary transfers of it, because the present is not a litigation for that purpose, nor is any such proceeding pending nor any such question before us. The defendant did eventually waive the question, and made the transfer at their own risk; nor is that circumstance of the slightest consequence, in considering the question that is before us, and that is whether a recovery in damages can be had in this action as for a wrongful refusal to transfer. The situation of the case and the parties, and the question of the right of the plaintiffs to have a transfer, and the duty of the defendant as to permitting a transfer, were much complicated by the conduct of the plaintiffs during the correspondence, and while the subject was under discussion. The first application for the transfer was made in October, 1890. Replying to this on October 20, 1890, the treasurer of the company said it would be necessary to have a certified copy of the will of Thomas Livezey. This seems to have been furnished on October 28th, as a letter of the 29th, from the treasurer, says that the matter has been referred to the defendant's attorney, and that, if he decides that the transfer is made in accordance with the will. it will be made as desired. On the 31st he wrote again, saying that the attorney decided the transfer could not be made under the provisions of the will. Then, on November 3, 1890, Mr. Allison, as attorney for the executors, wrote to Mr. Stanton, attorney for the defendant, suggesting an application to the orphans' court for a decree authorizing the executors to sell the stock, and on the next day he wrote again, making a further suggestion as to the manner of making a transfer, and presenting reasons why he thought the defendant would be safe in doing so, and saying, also, that the estate was solvent, and there were no creditors. On the 15th of November, Mr. Stanton replied, asking again to have the copy of the will returned to him, so that he could re-examine the question. On the 28th of November, Allison again wrote to Mr. Stanton, saying the transfer was to be made by the executors, and not by the trustees, and that the executors, as such, were the legal owners of the stock, and had the right to transfer it; and he inclosed an irrevocable power of attorney, signed by all the cestuis que trustent, authorizing the transfer, to which Mr. Stanton replied on December 3d, expressing his regret that he could not agree with Mr. Allison as to the right of the executors to hold the stock as executors, or to transfer it as such, as he considered the stock was held by them as trustees, and could not be transferred, on account of the trust created |