lished, constructed or improved, or as the same may be at any time hereafter legally established, constructed and improved with all lands, buildings, and fixtures of every kind thereto belonging." The other description is "all real estate to said company belonging." We think we should not disregard this difference. The provision relating to after-acquired property is in terms confined to the "railroad" and franchise, and the lands belonging "thereto"; that is, to the "railroad." The words "established, constructed, and improved" seem clearly to apply to the railroad itself, as distinguished from other land of the company. They are not appropriate to real estate owned by the company, but not a part of the "railroad" itself. Besides, unless it was intended by the deed to make a distinction between lands belonging to the "railroad" and other real estate belonging to the company, there was no occasion for inserting the clause "all real estate to said company belonging." We conclude that this latter clause related only to real estate then held or owned by the company, which was not a part of the railroad itself, and that no after-acquired property was intended to pass, or did pass, by the 1852 deed, except such as appertained to the "railroad" itself. See Eldridge v. Smith, 34 Vt. 484; Walsh v. Barton, 24 Ohio St. 28; Boston, etc., R. R. v. Coffin, 50 Conn. 150; Morgan v. Donavan, 58 Ala, 241; Randolph v. New Jersey, etc., R. R., 28 N. J. Eq. 49; Dinsmore v. Racine, etc., R. R., 12 Wis. 649; Shamokin Valley R. R. v. Livermore, 47 Pa. 465, 86 Am. Dec. 552. ing a spendthrift trust, and further provided that after three years from her death, or sooner if her husband desired, the trustee should convey in fee all her real estate and deliver her personal property absolutely to such person as her husband should appoint, and that, on his failure to so appoint, he should continue to enjoy during his life the use of the personal property and the rents of the real property, and authorized her husband to appoint by will in the event of failure to do so the estate to go to his legal heirs. Held, that the husband took an estate in fee subject to the claims of his creditors. [Ed. Note.-For other cases, see Trusts, Cent. Dig. § 10; Dec. Dig. § 12.*] LIDITY. 2. TRUSTS (§ 12*)-SPENDTHRIFT TRUST-VAA person cannot be the real owner of property with full right to deal with it as he pleases, taking the full income of it to his own exclusive use, and keep the same from the claims of his this regard cannot be done for him by another. creditors, and what he cannot do for himself in [Ed. Note.-For other cases, see Trusts, Cent. Dig. § 10; Dec. Dig. § 12.*1 Appeal from Orphans' Court, Allegheny County. In the matter of the estate of Martha B. Morgan, deceased. From a decree distributing her estate, A. Pinedo appeals. Reversed. Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. S. W. Cunningham and Sion B. Smith, for appellant. James R. Sterrett, John D. Evans, and William H. McClung, for appellees. STEWART, J. By her will Martha B. Morgan, testatrix, gave her entire estate, real and personal, to the Safe Deposit & Trust It follows that of the demanded premises Company of Pittsburg, in trust, exclusively the plaintiff has title to lots 1, 5, 6, 9, and 10, for the use and benefit of her husband, Benjaand an undivided half of lots 3, 7, and 8, min W. Morgan. The terms of the trust diand only to so much of the after-acquired rected that the trustee-adopting the lanlots, if any, as lies within the railroad loca-guage of the will—“shall and will receive and tion, or as was acquired for and was used in connection with the operation of the railroad. But the case fails to show that any part of these latter lots within the limits of the premises demanded in the writ were a part of the "railroad," as hereinbefore de-its of my real estate (if any), and after payfined. The plaintiff therefore is entitled to judgment for so much of lots 1, 5, 6, 9, and hold my personal estate for the period of three years after my decease, and permit my husband Benjamin W. Morgan to use the same, and shall and will during the aforesaid period, collect and receive the rents and prof ing the taxes, and the necessary expenses of keeping up the improvements, and the insurance upon the same, shall and will pay over the balance of said rents and profits into the hands of said Benjamin W. Morgan, or such person or persons as he may designate to receive the same; or at the option of said company permit the said Benjamin W. Morgan to occupy said real estate during the period aforesaid; but so that none of my estate, real or personal, shall be in the control or liable for the debts or engagements of the said Benjamin W. Morgan. And upon the further trust and confidence that the said Safe Deposit and Trust Company, after the lapse of the period aforesaid (or sooner if desired by said Benjamin W. Morgan) shall and will convey in fee any or all my real es tate, and deliver any or all of my personal | the trustee, after the lapse of three years, or property absolutely, to such person or persons sooner if desired by the said Benjamin W. as the said Benjamin W. Morgan shall by any Morgan, to convey in fee any or all the real writing under seal appoint." The will fur- estate, and deliver all the personal property ther provided that, in case the husband failed absolutely, to any person or persons the said to so appoint, he was to continue to enjoy Benjamin W. Morgan may appoint in writing during his life the use of the personal prop- under seal? The termination of the trusterty, and to receive the rents of the real es- and that is what this provision contemplates, tate, but so that none of the estate should and it is not in any way qualified by other exbe liable for his debts or engagements. It pressions in the will-would necessarily vest gave him the right to appoint by last will, the absolute dominion and ownership of the and, in the event of failure to appoint, the property in the husband, and with such vestestate was to go to his legal heirs. This ap-ing the exemption from liability would cease. peal is by a creditor of Benjamin W. Morgan from the decree distributing the estate of Martha B. Morgan; his contention being that Benjamin W. Morgan took an absolute estate under the will of the said Martha B. Morgan. Had the will provided that the trust was to continue so long as there was any existing indebtedness of the husband enforceable against him, it would have been another thing; but the time of its determination was left entirely in the discretion of the husband. At once upon the will becoming operative, it was in his power to destroy the trust and acquire full power of alienation. True, he did not choose to exercise the power given him in this regard; but that is wholly immaterial. So long as the trust continued after the right to terminate attached, the exemption from liability for his debts which the trust was intended to secure survived, not because it was so directed by the testatrix, but sole or in part to the payment of his debts is an investiture pro tanto of ownership. We repeat, spendthrift trusts are allowed not because the law concerns itself for the donee. He may conserve or dissipate as he pleases. The law's only concern is to give effect to the will of the donor as he has expressed it. When a donor substitutes for his own absolute right of disposition, the pleasure of the donee, the gift is absolute. The question we have to consider is the sufficiency of the spendthrift trust attempted to be created under the will of Martha B. Morgan. The law rests its protection of what is known as a spendthrift trust fundamentally on the principle of cujus est dare, cujus est disponere. It allows the donor to condition his bounty as suits himself so long as he violates no law in so doing. When a trust of this kind has been created, the law holds that the donor has an individual rightly because it was the pleasure of the husband of property in the execution of the trust; and that it should so continue. The very fact to deprive him of it would be a fraud on his that power is given which may be used by the generosity. For the law to appropriate acestui que trust to apply the fund in whole gift to a person not intended would be an invasion of the donor's private dominion. Holdship v. Patterson, 7 Watts, 547. It is always to be remembered that consideration for the beneficiary does not even in the remotest way enter into the policy of the law. It has regard solely to the rights of the donor. Spendthrift trusts can have no other justification than is to be found in considerations affecting the donor alone. They allow the donor to so control his bounty, through the creation of the trust, that it may be exempt from liability for the donee's debts, not because the law is concerned to keep the donee from wasting it, but because it is concerned to protect the donor's right of property. Does the will of this testatrix express direction or purpose that the property given her husband thereunder shall in any and every event be exempt from liability for his debts? If it does, and no rule of property is transgressed in connection therewith, the law will see to it that her wishes and directions are observed. Of course, the testatrix had exemption from liability for debt in mind, and she expressly provides for it; but she provides for it in a way that makes it quite manifest that the only purpose she had was to provide her husband a shield equal to a defense of the property she was about to leave him against the demands of his creditors which he might use if he chose, and abandon when he was so disposed. What other meaning The provision in the will referred to is entitled to a still larger significance. The right absolute given the donee to require the trustee to convey the real estate in fee, and surrender the personal estate absolutely, strips the trust of every active duty and of every right of control beyond the pleasure of the donee. The result, as we have said, is not dependent on the exercise of the right. It inheres in and results from the very power itself. It determines the quality of the donee's estate, and operates to merge the two estates, legal and equitable. The true test, as said in Rife v. Geyer, 59 Pa. 393, 98 Am. Dec. 351, is whether a court of equity would decree a conveyance of the legal title. Can there be any question that equity would have compelled a conveyance in this instance, and a surrender of the entire estate? To have refused it would have been to disregard a positive direction of the testatrix. It is an invariable rule that whatever a chancellor would decree to be done shall be considered his will to his beneficiaries, not as appointees, but as his own legatees and devisees. [Ed. Note.-For other cases, see Wills, Dec. Dig. 689.*] Appeal from Orphans' Court, Allegheny merger of the two estates here would have que trust had an equitable estate in fee, with The right of alienation in the present case was given the donee in unmistakable and unrestricted terms; and this of itself defeats the attempted trust. The assignments of error are sustained, the decree of the orphans' court is reversed, and it is now directed that distribution be made in accordance with the views here expressed. (223 Pa. 233) In re MORGAN'S ESTATE Appeal of MORGAN. (Supreme Court of Pennsylvania. Jan. 4, 1909.) WILLS (8 689*) - CONSTRUCTION ESTATE CREATED. Testatrix gave her entire estate, real and personal, in trust for the benefit of her husband, with the usual provisions creating a spendthrift trust, and further provided that after three years from her death, or sooner if desired by her husband, the trustee should convey in fee all her real estate, and deliver her personal prop: erty absolutely to such person as her husband should appoint, and that, in the event of his failure to so appoint, he should continue to enjoy during his life the use of the personal property and the rents of the real property, and authorized her husband to appoint by will, and in the event of failure to do so, the estate to go to his legal heirs. Held, that the husband took an estate in fee, and that it passed under In the matter of the estate of Martha B. Morgan, deceased. From the decree distributing the estate, Sarah A. Morgan appeals. Appeal dismissed. Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. A. M. Imbrie, for appellant. John D. Evans, Patterson, Sterrett & Acheson, and William H. McClung, for appellee. STEWART, J. The appellant claims to participate in the distribution as an heir at law of Benjamin W. Morgan, deceased, to whom was given a life estate under the will of Martha B. Morgan, with power to appoint. The will provided that, in case of failure to appoint, the estate was to go to "the right heirs of Benjamin W. Morgan." Though Benjamin W. Morgan died testate, the contention is that the right of appointment was not exercised. The appeal assumes that the trust attempted to be created under the will of Martha B. Morgan was valid and effective. In the opinion just handed down in the Appeal of Pinedo (72 Atl. 498), from the same distribution, we held that the estate given Benjamin W. Morgan under the will of his wife was absolute. The estate was his, and it passed under his will to his beneficiaries, not as appointees, but as his own legatees and devisees. The case calls for no further discussion. The appeal is dismissed, at costs of appellant. (223 Pa. 220) SHALLENBERGER v. STANDARD SANITARY MFG. CO. (Supreme Court of Pennsylvania. Jan. 4, 1909.) 1. CONTRACTS (§ 352*)-ACTIONS-QUESTIONS FOR JURY. Whether a notice to a contractor of the inrequired bond for faithful performance was tention of the other party to rescind, unless the delivered within a time limited, afforded a reasonable time for furnishing the bond held for the jury. [Ed. Note.-For other cases, see Contracts, Cent. Dig. § 1200; Dec. Dig. § 352.*] 2. CONTRACTS (§ 316*)-BREACH-WAIVER. tract was put solely on the ground that it had Where refusal to accept a bond on a connot been tendered in time, it was not error, in tract, to reject the other party's offer to show an action by the contractor for breach of con the contractor's financial condition. [Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 14832, 1484; Dec. Dig. § 316.*] 3. CONTRACTS (§ 316*)-BREACH-WAIVER. Where a refusal to accept a bond for the faithful performance of a contract, and to per mit the contractor to proceed with the work, was put solely on the ground that the bond had not been tendered in time, it was not error, in an action by the contractor for breach of the contract, to refuse consideration of the fact that the bond tendered was that of a foreign corporation. [Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 14832, 1484; Dec. Dig. § 316.*1 4. Contracts (§ 300*)-CONTRACTOR'S BOND TIME FOR FURNISHING-EXCUSE FOR DELAY. Where the other party to a contract was advised that the contractor had applied to a foreign corporation for a surety bond to meet the requirements of the contract, and made no objection, while that fact may not have required it to accept such bond, yet, if it finally rejected it for the reason that it was given by a foreign corporation, the contractor would be entitled to further time to procure another. house and a warehouse building, and complete the same by September 1st following. Without having given the bond required plaintiff was allowed to enter at once upon the work. He proceeded without delay to tear down and remove the old buildings, and prepare the ground for constructive work. The defendant would have been entirely within its rights had it denied possession of the premises until bond had been given, and, for a failure of the plaintiff to furnish the bond within a reasonable time, it would have been justified in rescinding the contract. But possession having been given, and the work having been entered upon, while the defendant's right to demand the bond thereafter continued, as well as its rights to rescind for default by the plaintiff, yet rescission could [Ed. Note. For other cases, see Contracts, Cent. Dig. § 1378; Dec. Dig. § 300.*] 5. DAMAGES (§ 124*)-BREACH OF CONTRACT-only be justified as proper regard was paid MEASURE OF DAMAGES. The measure of the contractor's damages for breach of a building contract is the difference between the contract price and what the entire cost of the building would be to the con tractor. [Ed. Note. For other cases, see Damages, Cent. Dig. § 333; Dec. Dig. § 124.*] Brown, Potter, and Elkin, JJ., dissenting. Appeal from Court of Common Pleas, Allegheny County. Assumpsit for breach of contract by E. E. Shallenberger against the Standard Sanitary Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed. Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. John P. Hunter, for appellant. James Balph and R. A. Balph, for appellee. to the rights of the plaintiff under conditions existing at the time. In a communication addressed to plaintiff, under date of May 19th, Mr. Reed, general manager for the defendant company, requested that the latter file his bond with either the secretary of the company or its architect. The day following the receipt of this letter the plaintiff testified that he called on Mr. Reed, and told him that he had made application to a trust company in West Virginia for a surety bond, but, because of the absence of a party whom he wished to see in connection with it, he was delayed; that he would get it as soon as possible, and would not ask any money on the contract until the bond had been delivered to the company. To this representation Mr. Reed replied, "All right." The plaintiff thereafter continued his work under the contract. By June 5th he had the ground cleared, had 8 or 10 car loads of lumber on the ground, and was ready to proceed with the erection of the buildings. On that day defendant gave the plaintiff a written notice, which reads as follows: "Under the terms of the agreement dated April 27, 1905, prepared for construction of buildings in Allegheny city for S. S. M. Co., it is provided that you shall give a satisfactory bond in the sum of $20,000 for the faithful performance of the work. As the contract cannot be closed till this is done, you are hereby notified that unless the bond is delivered by Thursday, June 8, 1905, by twelve o'clock noon, we shall let the work to another contractor." If, as here asserted, the contract had not been closed, the defendant was under no obligation to the plaintiff with respect to it; it was nothing but an open negotiation from which either could withBy the contract, executed April 27, 1905, draw at pleasure. This was a strange theplaintiff undertook, for a consideration of ory to adopt, and may explain in a measure $64,692, to remove from a certain lot in the the summary process attempted by the decity of Allegheny owned by defendant com- fendant. As we have said, the contract was pany the buildings then standing and oc- an executed one, binding upon both parties, cupied by the defendant company, and erect which neither could rescind except for justhereon a pattern shop and storage ware-tifying reasons. Treating the communica STEWART, J. It is not correct to say that the contract here was incomplete and inoperative so long as the bond stipulated for had not been given by the contractor. With the sealing and delivery of the written agreement the contract at once became operative, and thereafter, for a breach by either of the parties in any of its terms, the other would have appropriate remedy. One of the terms required that the contractor should "furnish satisfactory trust company bond in the sum of twenty thousand dollars ($20,000) for the faithful performance of all and singular his covenants, and for the protection of the parties of the first part against mechanics' liens, and all damages, losses, delays, or other injury sustained by reason of the failure of the said party of the second part to keep and perform all his covenants." tion, however, as a notice that the company of the party having a right to the bond. Did would rescind the contract, unless the bond the conversation occur as plaintiff says, or were furnished by noon of June 8th-and the was it as the general manager testified? plaintiff so understood it-the one question | Certainly what passed between these parties is, Was the time allowed under the notice was relevant, and it was wholly for the jury reasonable, in view of all the circumstances to determine what the conversation was, and of the case? its effect. So, too, in regard to other relevant facts. The facts being undetermined, a submission to the jury was unavoidable. The plaintiff testified that at the time the notice was received his application for a surety bond of the Citizens' Trust & Guarantee Company of Parkersburg, W. Va., had been approved by the company. Under date of June 8th-though it must have been the 9th-he wrote to the defendant, advising that this bond had been executed by the trust company the day previous, June 8th, and would arrive by due course of mail. On either the next day or that following plaintiff tendered this bond to the defendant's general manager, Mr. Dawes, who replied, "Well, it is all right; but, as we have made the change now, we intend to do the work ourselves, and don't wish to make the change again." Thereupon, plaintiff was denied permission to proceed with his work on the premises. It is complained that the court submitted to the jury the question of reasonable notice to plaintiff of the intention to rescind, instead of deciding it as a matter of law. This assumes that there was no dispute as to the facts on which plaintiff relied to justify or excuse his delay in furnishing the bond. It would unduly extend this opinion if we were to refer in detail to the many and marked contradictions which appear in the testimony. Let a single instance suffice. In determining whether a three-day limit for the filing of the bond was affording the plaintiff a reasonable time, what preceded the giving of the notice was as much for From what we have said as to the real and only issue in the case it results that no error was committed in rejecting defendant's offer to show plaintiff's financial condition. Whatever that condition was, it did not prevent plaintiff from procuring the required bond and tendering it to defendant on the day following defendant's rescission. The question was whether that was a reasonable compliance with defendant's demand. Nor was it error to refuse consideration of the fact that the bond tendered by plaintiff was a bond of a foreign corporation. Defendant did not put its refusal of acceptance on any such ground, but solely on the ground that the bond had not been tendered in time. Not only so, but when defendant, weeks before, was advised that plaintiff had applied to this company for a surety bond to meet the requirements of his contract, no such objection was made. This fact may not have required the company to accept such bond; but, if rejected finally for any such reason, the plaintiff would have been entitled to further time to procure another. The measure of damages the jury were instructed to observe was a correct one. Plaintiff had made subcontracts for two-thirds of the material required for the construction of the building, and offered testimony to show what additional expenditure would be requirconsideration as what followed. That the ed to complete the buildings in accordance reasonableness of the time depended on the with the contract. situation and circumstances of the parties these subcontracts by the defendant company The appropriation of at the time is true, but whatever in the is conclusive as to the cost of the material conduct of either had contributed to the sit-embraced, and the testimony as to the addi tional cost required was convincing to the jury. They were instructed by the court to tiff's contract, first ascertaining from the eviestimate from these data the value of plaindence what the entire cost of the building would be to the plaintiff, and deducting this sum from the contract price. If the defendant had no right to rescind the contract, the measure of damages adopted was the onplaintiff was entitled to compensation; and uation so far as concerned the other was proper matter of inquiry. The plaintiff, immediately after the first written request for a bond, had told the defendant's general manager that application had been made to the trust company in Parkersburg for a surety bond in the stipulated sum. If in that conversation the manager told plaintiff what the latter says he did, a waiver of the right to require prompt delivery of a bond, in consideration of plaintiff making no pressing demand for money or any payment only one, depending upon the sufficiency of the his contract before delivery of the bond, evidence, by which this could be determined. The assignments of error are overruled. might well be inferred. If there were such waiver, then when the notice of June 5th Judgment affirmed. was given, plaintiff could not be said to be in default. A three days' notice to one who in open disregard of his covenants, and in spite of repeated demands for compliance, was in default might well be regarded as reasonable; while such a requirement would be wholly unreasonable with respect to another POTTER, J. (dissenting). I am unable to agree with the view of the majority of the court in this case. An essential requirement of the proposed contract was that the contractor should furnish bond in the sum of $20,000, to insure the faithful performance of |