The court below (Wilson, J.) filed the following opinion:

"The bill alleges that the parties named as plaintiff and defendants together hold several pieces of real estate, which are described in the bill, in undivided interests. The plaintiff desires to have partition made of those properties, and has filed this bill for the purpose of having such partition made. Whatever right or title the parties plaintiff and defendants have to the properties referred to arose by virtue of the provisions of the will of their mother, Amanda G. Harris, who died seised of the said pieces of real estate on November 15, 1897. By her will, which was duly proved, she directed as follows: 'My real estate I give and devise to my executors, in trust to hold the same, and to divide the rents and profits thereof among my said children, and with full power to sell and dispose of the same, or any part thereof, till such time as all my said children, or the survivors, agree that the same shall be sold or divided, when the said real estate, or the remaining portion thereof, and the proceeds of all the sales thereof, shall be equally divided among them. All other estate of which I may die possessed I give to my said children.' The parties to this proceeding are the children in whose favor said provision of the will was made, and they were all living and of full age at the time of the death of the testatrix. Whether or not the plaintiff is entitled to obtain relief in the court and have partition of the properties concerned made depends upon the construction which is to be given to the portion of the will already quoted. The plaintiff's bill is founded upon the theory that the trust which was in terms created by the will over the real estate in question was a dry trust, and that the estate which passed to the testatrix's children under the will was a vested estate. On the part of the defendants it is claimed that the trust was an active one, and that no partition can be made against the objection of any one of the children of the testatrix; in other words, that the trust will be operative until such time as all of the children, or the survivors of the children, of the testatrix shall agree that the real estate shall be sold or divided. It is conceded on all sides that, if the trust created by the will is and remains to the present time an active trust, then the bill asking for a partition cannot be sustained. The question to be determined, therefore, is whether the clause of the will before quoted ought to be interpreted as creating such an active trust.

"We are of the opinion that the trust is still active and operative. The real estate was devised to the executors of the will. The trust imposed on them was to hold the same, and to divide the rents and profits thereof among the children of the testatrix. That, of course, imposed upon the executors the right and duty of collecting the rents and profits. Power was given to them to sell

and dispose of the real estate, or any part of it, 'till such time as all my said children, or the survivors, agree that the same shall be sold or divided.' If the devise had been in the terms just stated, without any postponement of the time when the children should, by the directions of the will, be entitled to receive the full benefit of it, it would undoubtedly be proper to hold that the trust was a dry one, and that the estate was vested in fee in the children. It seems to us, however, that we must conclude that the testatrix had some purpose in mind when she postponed the time for distribution and division until there should be a unanimous desire on the part of the children that the distribution and division should be made. What this purpose was we may not be able to determine, but that the testatrix had some purpose in mind would seem to be made clear by the final clause of the portion of the will referred to, which applied to the personal estate of the testatrix. This clause reads as follows: 'All other estate of which I may die possessed I give to my said children.' By that provision they took at once on the death of their mother, on the probate of her will, an absolute, immediate estate in all her personal property. As to the real estate, for some reason she seems to have contemplated and provided for a postponement of the time when they would have a like interest. It may have been that she did not desire or intend that any one of her children immediately upon her death should acquire such an estate as could be parted with, and thus be taken from the survivors of her children, who, at a later date, might constitute a class much smaller in number than the four who were intended, in the first instance, to be provided for by the will. The testatrix seems, so far as the express language of her will indicates anything upon the subject, to have had in her thought only her children, and to have endeavored to provide for them and their survivors. We do not intend to decide that the issue of any deceased child would take no interest in the property devised in trust. That is a question to be decided at the proper time, if it should ever arise. What we do mean to hold is this: That, as we construe the will in question, it vested the title to the real estate in the executors in trust, with active duties, which were intended and directed to continue for a definite lawful purpose to the time when all the children, or the survivors of the children, of the testatrix, should agree upon a sale or division of the property. That time has not yet arrived, and the duties of the executors and trustees must, therefore, be regarded as still active and operative.

"We do not think that the case of Caldwell v. Snyder, 178 Pa. 420, 35 Atl. 996, 35 L. R. A. 198, militates against the view which we have expressed. In that case it appears that the testator provided that all of the rest and residue of his estate, real and personal,

should be equally divided between his children, subject to certain deductions. He also directed his executors to sell or lease any or all of his real estate at any time that it might be possible, and by the agreement of his wife and the majority of his heirs. The Supreme Court in that case held that a partition of the estate should be made at the instance of one of the devisees under the will; but it is to be noted that in that case the devise of the property was to the children directly, and no general unrestricted duty of collecting and distributing rents and profits and making sale of the property was imposed upon the executors. No power of sale was conferred upon them, excepting in case of an agreement between the wife and the majority of the heirs. In the case in hand the real estate was devised in trust to the executors. They were given the power to collect and distribute rents and profits, and they were also given power to sell and dispose of the real estate, or any part of it, until the time should arrive when the children, or the survivors of them, by unanimous act, should terminate the trust by requiring that the property should be sold or divided. We think there is a radical difference between the two cases. There is some resemblance between the present case and Baum's Appeal, 4 Penny. 25. In that case the testator disposed of all the residue of his estate, real and personal, 'in the same manner that it would descend and be distributed under the intestate laws of the commonwealth now in force.' He also gave to the executors of his will full power to make sale of any of his real estate. In addition, he directed that in case his grandchildren, who were the persons the will was intended to benefit, 'at any time, by unanimous consent, elect to take the unsold land instead of the proceeds thereof, they may do so.' Several years after the death of the testator in that case one of the grandchildren filed a petition asking that a partition should be made of the real estate, which was refused in the lower court, and in the Supreme Court the decree of the lower court was sustained. The opinion was per curiam, and brief. It reads as follows: 'No fact is shown to justify the court in interfering with the large discretionary power given to the executors as to the time of selling the real estate, and the unanimous consent of all the grandchildren to take the unsold land, instead of the proceeds thereof, had not been obtained.'

"It seems to us that the case before us presents stronger elements against the right to demand partition than does Baum's Appeal. So far as the latter case has any bearing upon the questions which are involved in the matter in hand, we think it sustains the view previously expressed, and upon that view we are of the opinion that the demurrer filed to the bill must be sustained, and the bill dismissed, with costs."

Argued before MITCHELL, DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

Frank P. Prichard, for appellant. Thomas Cahall and Charles C. Lister, for appellee.

PER CURIAM. The decree is affirmed on the opinion of the learned judge below.

(205 Pa. 484)

MILLER v. CLEMENT et al., School Directors.

(Supreme Court of Pennsylvania. May 4, 1903.)

MANDAMUS - APPLICATION - · QUESTIONS DETERMINED-PUBLIC SCHOOLS-REFRACTORY PUPILS-EXPULSION.

1. In mandamus proceedings under Act June 8, 1893 (P. L. 345), prescribing the mode of procedure, on filing the petition the only question before the court is whether the substance of a case for mandamus is presented; and, if it is, the writ should be directed to issue in the alternative form.

2. Under Act May 8, 1854 (P. L. 622, § 23, subd. 6), regulating common schools in Penusylvania, and Act March 3, 1818 (P. L. 127, 89) regulating schools in the city of Philadelphia, the board of directors is given power, on full examination, to suspend or expel all refractory pupils after hearing. Held, that the investigation of charges against a pupil may be delegated to a committee of the board, when the action is afterwards reported to and reviewed by the full board.

3. Where, on petition for writ of mandamus to compel the restoration of a pupil who had been expelled from a public school, the petition shows a hearing by a committee of the board of school directors, and that the judgment of such committee was approved by the full board, which declined to change it at the request of the petitioner, the writ is properly denied.

Appeal from Court of Common Pleas, Philadelphia County.

Action by William Miller against George W. Clement and others, school directors of the city of Philadelphia. From an order refusing a writ of mandamus, plaintiff appeals. Affirmed.

The petition for the writ, as amended, was as follows: "That your petitioner is a resident, a citizen, and a taxpayer of the city of Philadelphia and state of Pennsylvania, and resides at No. 2130 Market street, in the said city. That your petitioner is the father of George Miller, who is fourteen years of age, and who was, prior to the month of May, 1900, duly entered and admitted as a pupil in the Keystone Public School, at Nineteenth and Ludlow streets, Philadelphia, which is under the direction and control of the board of directors of the Ninth School Section of the said city. That said school is a free school provided under the public school laws of the state of Pennsylvania, and is supported by public taxation. That in May, 1900, certain charges were made by the principal of the said school against the said George Miller, to the school committee of the said board, and the said committee thereupon undertook to expel the said George Miller from the said school, and he was thereafter denied admission to the school by the principal, and refused further instruction therein. That the said expulsion was by

a committee of said board, consisting of three members thereof, and not by the board of directors themselves, and no examination nor hearing of the charges against the said George Miller was had before the said board as required by law. That the said committee gave an ex parte hearing only to the charges against the said George Miller and declined to hear witnesses on his behalf, and, although the testimony of the witnesses heard was insufficient to convict him of refractory or incorrigibly bad conduct, they ordered his expulsion from the school. That at the next meeting of the said board of directors, which was held June 28, 1900, your petitioner requested that an examination and hearing in accordance with law should be given his said son, but no such examination nor hearing was given, and no attention was paid by the board of directors to his request. That no further meeting of the board of directors was held until fall, when your petitioner repeated his said request; but no examination nor hearing has yet been given by the said board, and his son is still excluded from the said school. That under the school laws of this commonwealth a board of school directors have power to suspend or expel a pupil only when found guilty, on full examination and hearing, of refractory or incorrigibly bad conduct; and your petitioner submits that they have no power to delegate the power thus vested in them to a committee, or to any other person or body whatsoever. That the said George Miller has not been found guilty of refractory or incorrigibly bad conduct, after full examination and hearing, either before the said board of directors, or before any committee thereof, and has therefore been illegally expelled and excluded from the said school. Your petitioner is without other adequate and specific remedy at law, and therefore prays your honorable court to award a writ of mandamus, directed to the said defendants, commanding them to appear at a day certain, either to confess or deny the charges hereinbefore set forth, and, if they confess the same, to order them to grant an examination and hearing before the said board of directors to the said George Miller upon the charges made against him, or else readmit him as a pupil of the said school, in accordance with the rights of your petitioner." A rule to show cause was granted, an answer was filed, and subsequently the rule for the alternative mandamus was discharged.

Argued before MITCHELL, DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ. James C. Sellers, for appellant. James Alcorn, Asst. City Sol., and John L. Kinsey, City Sol., for appellees.

POTTER, J. This was a petition for a writ of mandamus. Such proceedings are now governed by the act of June 8, 1893 (P. L. 345), which outlines clearly the proper practice. Section 2 of this act provides that 55 A.-3

any person desiring to obtain a writ of mandamus shall present his petition therefor, verified by affidavit, to the judge or judges of the proper court, either in session or at chambers, setting forth the facts upon which he relies for the relief sought,, the act or duty whose performance he seeks, his interest in the result, the name of the person or body at whose hands performance is sought, demand or refusal to perform the act or duty, and that the petitioner is without other adequate and specific remedy at law. If such petition presents the substance of a case for mandamus, the court shall direct that such writ issue in the alternative form. Provided, however, that if the right to require the performance of the act is clear, and it is apparent that no valid excuse can be given for not performing it, a peremptory mandamus may be awarded in the first instance, and directed to issue forthwith. The mode of procedure thus prescribed is essentially that which was pointed out and commended by this court in Keasy v. Bricker, 60 Pa. 9. The only question to be determined by the court upon the filing of the petition is whether the substance of a case for mandamus is presented. If so, the writ should be directed to issue in the alternative form. It will be observed that no room is left for the issue of a preliminary rule to show cause. The granting of such a rule in this case was irregular. It injected a useless feature into the proceedings, which only tended to complicate that which the act of assembly had made simple. To the rule thus granted an answer was filed, which went to the merits of the case, and shortly afterwards the rule was discharged. But the court below filed no opinion, and we are therefore without information as to whether it considered the answer, in dismissing the rule, or whether its action was based simply upon an examination of the petition. If the petition was insufficient, the alternative writ was properly refused.

Turning to the petition, we find that it sets forth that petitioner is the father of George Miller, who is 14 years of age, and who was prior to the month of May, 1900, duly entered and admitted as a pupil in the Keystone Public School, at Nineteenth and Ludlow streets, Philadelphia; that in May, 1900, certain charges were made by the principal of said school against the said George Miller, to the school committee of said board, and the school committee thereupon undertook to expel the said George Miller from the said school, and he was thereafter denied admission to the school by the principal, and refused further instruction therein. The petition admits inferentially that a hearing upon the charges was had before the committee. but complaint is made because the examination and hearing was not given to the boy at a full meeting of the board. But it is alleged that the matter was afterwards brought to the attention of the full board, and a hearing before them was demanded,

which was refused, and the action of the committee was approved and sustained. Sufficient appears from the allegations of the petition to show that charges were made against a pupil of the school, which charges were investigated by a committee of the board of directors, and after a hearing the pupil was expelled. It is not averred that the full board took no action with regard to the matter, but only that it refused to order another hearing before the full board. Under the act of May 8, 1854 (P. L. 622, § 23, subd. 6), power is given to the board of directors, on full examination and hearing, to suspend or expel from the school all pupils found guilty of refractory or incorrigibly bad conduct. The requirement is that the examination and hearing shall be full, but this does not necessarily mean that it should be by the full board. We see no reason why the investigation of charges and the conduct of a hearing may not be delegated to a committee of the board, when the action of the committee is afterwards reported to, and is reviewed and considered and sustained by, the full board. Especially in Philadelphia may this method be followed, as section 9 of the act of March 3, 1818 (P. L. 127), which is still in force, authorizes the school directors of various school districts of the city of Philadelphia to divide themselves into as many committees as there may be schools, so that every committee may have the management of one school only.

We conclude, therefore, that the petition discloses the fact that the board of directors have acted upon a matter which required of them the exercise of discretion and judgment. As mandamus will not lie to control the exercise of discretion, or to determine in any way the decision reached thereby, the court below would have been justified in holding that the petition did not present the substance of a case for mandamus, and, if put upon that ground, the writ was properly refused. The amended petition presented by appellant in no way strengthens his case. On the contrary, it only sets forth more clearly the fact that a hearing was held by the committee, that the testimony of witnesses was heard, and that, in the exercise of judgment and discretion, a conclusion was reached, which the full board approved and adopted, and declined to change or modify at the request of appellant. The right of judgment was in the board, and we will not attempt to regulate its exercise.

The assignments of error are overruled, and the judgment is affirmed.

(69 N. J. L. 560)

LANTRY v. SAGE.

5, 1892 (P. L. p. 395), in order to charge that amount against a person redeeming lands sold for taxes.

2. On final hearing it will be assumed that the prosecutor in certiorari has sufficient interest to give him a standing in court, unless his interest has been previously challenged.

(Syllabus by the Court.)

Certiorari by the state, on the prosecution of Mathew Lantry, against Henry J. Sage. Order annulled.

Argued February term, 1903, before GARRISON, SWAYZE, and DIXON, JJ.

H. H. Voorhees, for prosecutor. William H. Richards, for defendant.

DIXON, J. This writ is prosecuted to review a certificate signed by the mayor of Camden respecting a search against a lot of land in the city which had been sold for taxes under what is known as the "Martin Act." The matter is controlled by the supplements to that act approved April 5, 1892 (P. L. p. 395), and April 3, 1902 (P. L. 344). These statutes declare that a person desiring to redeem lands sold for taxes shall, in addition to other payments required, pay the cost and expenses, not exceeding $25 for each parcel, that are necessarily incurred by the purchaser at the tax sale in proceedings taken for the purpose of perfecting title, provided the mayor of the city shall approve of the amount to be paid to such purchaser. In the case before us the certificate of the mayor indorsed on the memoranda of search is as follows: "I, Joseph E. Mowrey, mayor of the city of Camden, state of New Jersey, by virtue of authority under the statute, do hereby approve of the within search as set forth." This, manifestly, is not the specific approval of the amount which the statute authorizes and requires.

But the defendant questions the right of the prosecutor to review the matter, because his interest, it is claimed, is not now shown. His interest, we think, is at this stage of the proceedings to be assumed, since no contrary suggestion was made before final hearing. Such was the deliberate judgment of the Court of Errors in Avon v. Neptune City, 57 N. J. Law, 701, 32 Atl. 220. Although in the opinion delivered by Chief Justice Beasley in West Jersey Traction Company v. Camden, 58 N. J. Law, 362, 33 Atl. 966, there is expressed some disapproval of that rule, the expression is merely obiter, for not only was the proof there lacking necessary to show the illegality of the action under review, but the status of the prosecutor was expressly challenged by the defendant while the evidence in the case was being produced. We regard the rule laid down in Avon v. Neptune City as being still in force. But the case now presented shows affirmatively the interest of the

TAX SALE-REDEMPTION-COSTS OF SEARCH

CERTIORARI-PRESUMPTIONS.

1. A mayor's approval of a search is not his approval of the amount to be paid for the search, which is required under the act of April

ed, "Who has the legal title to this property now?" answered, "Mathew Lantry, by deed from Binder, Beiderbeck, and Schmidhauser." No objection was made to either question or

answer, and cross-examination was waived. This should be deemed an acquiescence in the legality of the testimony.

The order of the mayor is annulled, with costs.

(69 N. J. L. 456)

PETER V. MIDDLESEX & S. TRACTION CO.

(Supreme Court of New Jersey. June 12, 1903.)

MASTER-SERVANT'S INJURIES DECLARATION-SUFFICIENCY-GENERAL DEMURRERDEFECTS REACHED-MOTIONS TO STRIKE.

1. A declaration, for servant's injuries, alleg ing that it was defendant's duty to use due care in the selection of competent persons to operate its cars, and yet, neglecting its duty, it did not use due care in that behalf, but negligently employed incompetent persons, and so negligently managed a certain car being propelled towards the car upon which plaintiff was that by reason of said negligence, and by reason of the car being in control of incompetent persons negligently employed by defendant for that purpose, a collision occurred, etc., does not charge defendant as an insurer, but states a good cause of action.

2. A declaration founded on separable demands, some of which are good and some bad, will prevail against a general demurrer, and, since the abolition of special demurrers, an objection thereto must be made on motion to strike out.

Action by Philip Peter against the Middlesex & Somerset Traction Company. On demurrer to declaration. Demurrer overruled.

Argued February term, 1903, before GUMMERE, C. J., and FORT, HENDRICKSON, and PITNEY, JJ.

George S. Silzer, for plaintiff. Willard P. Voorhees, for demurrant.

GUMMERE, C. J. This action is brought by an employé of the defendant company to recover damages for injuries received by him while engaged in operating one of its cars.

The principal ground upon which the declaration is attacked is that it charges the defendant with responsibility as an insurer of the safety of the plaintiff while in its employ, rather than for the use of due and reasonable care to protect him from injury. While some of the averments contained in the declaration may be open to this criticism, this is not true as to all of them. The following averment, extracted from the pleading, shows a legal liability on the part of the defendant to answer for the plaintiff's injury, viz.: "That it was the duty of the said defendant to use due and proper care in the selection of competent persons to run and propel its cars upon its tracks; yet the defendant, neglecting its duty in that behalf, did not use due and proper care in the selection of competent persons to run and propel its other cars [i. e., cars other than that which was being operated by the plaintiff] upon its tracks, * but negligently employed incompetent persons to run and propel its said other cars, and so

2. See Pleading, vol. 39, Cent. Dig. § 486.

negligently, unskillfully, and improperly managed and controlled a certain one of said other cars, then and there being run and operated upon its road, and which was then and there being propelled in an opposite direction in front of and towards the said car upon which the plaintiff was then and there as aforesaid, that by reason of the said negligence, unskillfullness, and improper management and control of said car, and by reason of the same being then and there in the management and control of incompetent persons, so as aforesaid negligently employed by the defendant for that purpose," a collision between the two cars occurred, in which the plaintiff received the injury for which he sues.

It is further urged, on the part of the defendant, that the demurrer should be sustained because "the plaintiff's claim, as set out in his declaration, is greater than his right," and Condit v. Neighbor, 13 N. J. Law, 83, 97, is cited in support of this contention. But, as has been pointed out by Beasley, C. J., in Hendrickson v. Penna. R. R. Co., 43 N. J. Law, 464, 467, the case relied upon was decided on a special demurrer, and is not authority for the sustaining of a general demurrer based on the reason cited. On the contrary, the decisions are quite clear that where the plaintiff's demand is made up of separable demands, some of which are good and some bad, such a declaration will prevail against a general demurrer. Hendrickson v. Penna. R. R. Co., supra, and cases cited therein. Since the abolition of special demurrers in our practice, such an objection can be made only on motion to strike out. Salt Lake City Nat. Bank v. Hendrickson, 40 N. J. Law, 52.

The demurrer should be overruled.

(69 N. J. L. 605) METTING v. NORTH JERSEY ST. RY. CO.

(Supreme Court of New Jersey. June 12, 1903.)

RAILROADS-NONSUIT EVIDENCE.

1. The trial court properly refused to order a nonsuit where it could only have been done by entirely disregarding plaintiff's testimony.

Error to Circuit Court, Essex County.

Action by William Metting against the North Jersey Street Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued February term, 1903, before GUMMERE, C. J., and FORT, HENDRICKSON, and PITNEY, JJ.

Chauncy H. Beasley, for plaintiff in error. Samuel Kalisch, for defendant in error.

PER CURIAM. The only assignment of error argued by counsel is upon the refusal of the trial judge to order a nonsuit at the close of the plaintiff's case. This could only have been done by entirely disregarding the testimony submitted on the part of the plain