sustain the view of the court below, the words of the testator relating to the notes of his son and two daughters were, they "are deemed by me as advancements to the respective drawers thereof." The will was artistically drawn, evincing an accurate knowledge of technical terms, and it was, therefore, held that the testator was conclusively presumed to have employed the term "advancements" in its strict legal sense and had turned the notes of his children in unmistakable phrase into gifts to them, to be valued as of their respective dates. In the present case Joseph Smith did not declare that he deemed the amounts due on the obligations of his sons as ad The manifest purpose of Joseph Smith. In Porter's Appeal, supra, relied upon to Jr., in executing the deed of trust, was the preservation of his estate and the creation of income for himself and wife during life. The only income that could have been derived from the promissory notes of the two sons above enumerated was interest upon them. They were part of what their father in his deed of trust called "property," and his directions were that "the net income of said properties" should be paid to him and his wife during their joint lives and to the survivor upon the death of the other. The obligations of the sons were thus expressly charged with the creation of income when they passed to the trustee, and income from them could be nothing but interest upon them. As still further illus-vancements to them, nor did he direct that trating the intention of the father that the sons should pay interest to the trustee upon their obligations is the provision that, upon the final distribution of the estate, there should be charged against the sons so much upon their specified obligations as should not have been paid. If the father did not intend that these obligations should bear interest for the purpose of furnishing income to him and his wife, he certainly would not have contemplated that the sons would pay anything on them; for, upon whatever they might so pay, they would lose interest during the continuance of the trust. If the intention of Joseph Smith, Jr., as gathered from the entire declaration of trust, and not from a particular phrase in it, without reference to the context, is clear that his sons shall pay interest, they must be charged with the same on the distribution of the assets in the hands of the trustee, for they are mere volunteers and must take the bounty of their father upon the terms in which he bestowed it. Eichelberger's Estate, 135 Pa. 160, 19 Atl. 1006, 1014. To avoid the payment of the interest which the father clearly intended his sons should pay, they point to the clause in the declaration of trust which provides that, upon the death of himself and wife, the trustee shall charge the sons, as in the case of advancements, with the sums due by them upon their obligations. It is to be noted in passing that advancements may be charged with interest, and will be so charged if the intention of the testator is clearly so expressed. Miller's Appeal, 31 Pa. 337; Porter's Appeal, 94 Pa. 332; Farnum's Estate, 176 Pa. 366, 35 Atl. 232. But upon this we need not dwell in the case before us, for the father did not declare that what he had lent to his sons should be deemed and treated as advancements by him to them. they should be so treated on the final distribution of the trust estate. As already shown, he regarded them as debts from which he was to derive income for himself and wife. Such declaration on his part would not, of course, have made the obligations debts of the sons, if barred by the statute of limitations or they were incollectible for any other reason; but in creating the trust he had the right to treat them as debts, and the sons claiming under that trust must, therefore, regard them as valid obligations. All that the father provided in the clause upon which the sons now rely for immunity from paying interest was that upon the final distribution of what might remain of the trust estate the sons should be charged "as in the case of advancements" with the sums due from them, as specified in the declaration of trust. This means nothing more nor less than that what they owed upon the death of their mother, as specified in the declaration of trust, principal and unpaid interest, should be counted as part of the corpus of the estate, and the amount due by each son deducted from his share. On the obligations of Alexander, payable on demand, interest is chargeable from the day the father declared them to be part of the property from which income was to be derived, and the son, now claiming a distributive share under the declaration of trust, must take it cum onere. If he refuses to so take it, he can get nothing, for he is a mere volunteer. He must take it as his father gave it to him in the declaration of trust, or not at all. The decree of the court below is reversed and the record remitted, that distribution may be made in accordance with the views herein expressed, the costs on these appeals to be paid out of the fund in the hands of the trustee. 1. MUNICIPAL CORPORATIONS (§ 661*) STREETS-POWERS OF CITY. Under Act June 16, 1836 (P. L. 749), providing that all streets, lanes, and alleys in the city of Pittsburgh, if not less than 20 feet wide, which have been laid out, appropriated, and opened by private persons for public use shall be public highways as fully as other public streets in the city, such streets, etc., are part of the public works of the city; and the city has complete jurisdiction over them for all purposes. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88 1432, 1434-1436; Dec. Dig, § 661.*] 2. MUNICIPAL CORPORATIONS (§ 665*) STREETS-OBSTRUCTIONS-INJUNCTION. Where it appeared in an equity proceeding that plaintiff was the owner of lots abutting on streets originally dedicated by a private owner of the plan of lots, which lots were subsequently incorporated in the city of Pittsburgh, and portions of these streets were vacated by ordinances duly passed, a bill by plaintiff to restrain an abutting owner from encroaching on the bed of a street so vacated was properly dismissed. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1441; § 665.*] obstructions from said Home and Valley streets; and that. it be enjoined from fur ther obstructing and closing the same. It appeared by the defendant's answer and upon the trial that the city of Pittsburgh, by an ordinance enacted June 24, 1907, had ordained that Home street from Hatfield street to Valley street, in said plan of the executors of Anna H. Irwin, deceased, be vacated; also that said city, by another ordinance approved June 16, 1910, enacted that said Home street from Hatfield street to Valley street be vacated, upon condition, however, that the ordinance should not be effective, unless the owners of the abutting property should pay $3,000 into the city treasury within 30 days after its passage, which sum was paid into the city treasury of Pittsburgh on July 16, 1910. Home street and Valley street were each 50 feet wide. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. Leonard K. Guiler, Levi Bird Duff, and L. B. D. Reese, for appellant. W. S. Dalzell, for appellee. Dec. Dig. low has given this case such full and intelli ELKIN, J. [1, 2] The learned court be gent consideration that but little need be Appeal from Court of Common Pleas, Al- said in reviewing it. Appellant is the ownlegheny County. Bill in equity by Levi Bird Duff against the Heppenstall Forge & Knife Company. From a decree dismissing the bill, plaintiff appeals. Affirmed. er of certain lots abutting on streets originally dedicated to public use by a private owner of the plan of lots. Subsequent to the dedication, the plan of lots was incorporated in the city of Pittsburgh, and the streets thus dedicated became part of the The plaintiff alleged in his bill that he is the owner of four lots in the plan of the ex-system of public highways. Portions of these ecutors of the will of Anna H. Irwin, deceased, by title derived from said executors; that at the time said plan was recorded all of the streets and alleys in said plan were opened for use to the lot holders and to the public, and the lots were conveyed to purchasers by numbers, bounding them by the streets and alleys of said plan, and since that time the lot holders and the public have had free and uninterrupted use of said street and alleys of said plan, and hold their lots subject to such use; that the defendant is the owner of lots 33 to 50, inclusive, and also lots 51 to 69, inclusive, in said plan, and holds said lots subject to the free use of said streets; that the defendant has encroached upon Home street by extending its buildings five to ten feet on the east side thereof over the building line, and threatens to permanently obstruct and close said street from Hatfield to Valley streets, and it has occupled with buildings a part of Valley street, and threatens to permanently close Valle street from Holly alley to Forty-Sevent£ street; and that the obstructions to and closing of said streets will greatly injure the plaintiff's property. The plaintiff prayed that the defendant be required to remove the streets, after they were taken over by the city, were vacated by ordinances duly passed. Appellant contends that the vacating ordinances are invalid, because the streets in question never were public highways, and the city therefore had no power to vacate them. The learned court below did not agree with this contention, and we concur in the conclusion of the lower court upon this branch of the case. But, assuming that the vacating ordinances are valid, appellant further contends that the vacation of portions of the streets as public highways cannot affect his right as an abutting owner of lots on the streets originally dedicated to have the same kept open for the use and benefit of the lot owners. It is not necessary in the disposition of this case to discuss what the general rule is or should be in such cases. In the case at bar, we have to do only with streets in the city of Pittsburgh and the declared statutory policy of the law relating to the same. The act of June 16, 1836 (P. L. 749), provides as follows: "All streets, lanes and alleys within the city of Pittsburgh, if not less than twenty feet in width, which have been laid out, appropriated and opened by private persons for public use or for the use of owners of lots fronting thereon, or which shall be, being of not less than twenty feet in width, hereafter laid out, appropriated and opened as aforesaid, shall for every purpose be deemed, taken and be public highways, as fully as the other public streets within the said city." It ing the act of 1836, and this is binding upon the public, the municipal authorities, and the private lot owners. We agree with all the conclusions reached by the learned court below, and think the bill was properly dismissed. Decree affirmed, at cost of appellant. (234 Pa. 330) ERNY v. SAUER. Jan. 2, 1912.) In passing upon this question, the learned court below said: "As before stated, the act of 1836 is explicit that streets, in plans of private persons, which are of a certain (Supreme Court of Pennsylvania. width and have been opened, shall be public highways. This is not simply a declaration that such streets should be public highways; the statute goes much further. enacts that such streets shall be public highways 'as fully as other public streets within the said city,' and, not merely for some purposes, but 'for every purpose.'" What is the meaning of these expressions? They must have been added for some reason. Their use was not necessary to effectuate the purpose of making such streets public highways. That had already been done by appropriate language. To our mind, the plain intent of this statute was to abolish all distinctions between streets in Pittsburgh, between those of the city itself and those in private plans, which were above 20 feet in width, and were opened to the public use. This was a declaration by the sovereign that thereafter the opened streets of a private plan were to be part of the public works of Pittsburgh, as much so as if the city itself had located and opened them to public use. Such streets were therefore public highways, and the city of Pittsburgh had complete jurisdiction over them for all purposes which the Legislature might commit to it. 1. MORTGAGES (§ 309*)— AGREEMENT TO SUBRENDER POSSESSION-CONSIDERATION. An agreement by a mortgagor in default to surrender possession of the mortgaged property and convey the same under release from further liability is void; and that the mortgagor went to expense of removing his family to another residence is not a sufficient consideration. [Ed. Note.-For other cases, see Mortgages, Cent. Dig. 88 864, 870, 899, 900, 902-905, 907912; Dec. Dig. § 309.*] 2. CONTRACTS (§ 75*)-CONSIDERAtion. [Ed. Note. For other cases, see Contracts, Cent. Dig. 88 273-285; Dec. Dig. 75.*] Appeal from Court of Common Pleas, Allegheny County. Action by Joseph F. Erny, for use of Joseph F. Erny, Trustee of German National Bank, and others, against W. N. Sauer. From an order making absolute rule for defense, defendant appeals. Affirmed. judgment for want of a sufficient affidavit of Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. U. G. Vogan, for appellant. John E. Winner and John D. Brown, for appellee. We think the learned court below properly interpreted the statute, and that it was the intention of the Legislature, in passing the act in question, to abolish distinctions MESTREZAT, J. This is an appeal by the as to streets in the city of Pittsburgh. In defendant from a judgment entered by the other words, it was thus declared as a pol- court below for want of a sufficient affidavit icy of the law that streets of the designated of defense. The learned court has not favorwidth, dedicated to public use by a private ed us with an opinion, and we are therefore owner, should be treated upon the same not advised as to its reasons for entering basis as other streets opened, improved, and the judgment. It has frequently been pointmaintained by the city itself. This means ed out by this court that an opinion should that all streets in said city, those dedicated be filed setting forth briefly at least the reaby a private owner as well as those opened sons of the court for holding the affidavit by ordinance, are subject to the control and insufficient and depriving the defendant of supervision of city councils. They may be a jury trial. In the present condition of this widened, improved, or vacated in the man- record, we become a court of first instance, ner provided by law, when the necessities of and deal with the question involved as the city so require. All subsequent purchas- though it had not been considered or deterers of lots included in the original plan took mined by the trial court. This, as we have title with notice of the declared statutory often said, is not the intention of the law. policy of the law relating to the public high- The court of common pleas is the court of ways of the city of Pittsburgh after the pas-first instance, and the parties have the right sage of the act of 1836. The Legislature, to have their cause heard and decided acrepresenting the sovereign authority of the cording to law and the established practice state, had the power to declare what streets of the state. This court, in adjudicating shall be deemed public highways, and what the question for decision, is entitled to have control and supervision shall be exercised the assistance which the opinion of the triover them. It exercised the power by pass-al court would give. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes W. N. Sauer, the defendant, and one L. | leased by an oral agreement, there is no H. Smith became indorsers on several prom-consideration to support the agreement enissory notes for E. T. and C. L. Walther. tered into between him and the plaintiff. These notes were discounted by the banks Our cases hold, as is conceded, that a new for whose use the scire facias on the mort- consideration is necessary to support the gage was issued. Smith and Walther be- oral agreement. The defendant contends, came insolvent, the former's estate paying however, that the surrender of the possesa very small part of the indebtedness secur- sion and the other acts performed by him ed by the notes. The banks looked to Sauer are a sufficient consideration. The other acts for payment of the balance due, and he, be- referred to are the trouble and expense of ing unable to raise the money, entered into procuring another residence and removing an agreement with Joseph F. Erny, the his family thereto. It is true, as he claims, plaintiff, on April 1, 1909, agreeing to exe- that the practice in this state is for the cute and deliver to Erny a bond and mort- mortgagor to retain possession and receive gage conditioned for the payment of $32,700, the rents and profits of the premises until being the aggregate amount of the notes. he is dispossessed by foreclosure proceedThe debt was to be paid in two years and ings. He therefore contends that it was an nine months, with interest from January 1, advantage to the plaintiff to be given im1910, payable semiannually. The mortgage mediate possession without the delay and was executed and delivered contemporane-expense incident to a sale and purchase of ously with the agreement. The mortgage the premises by the plaintiff. These adcontained a clause providing that, in case vantages to the plaintiff, together with the of default in the payment of the principal or alleged disadvantages to the defendant, it is any semiannual installment of interest for claimed, are sufficient consideration to sup30 days after the same should become due port the agreement. and payable, the whole of the principal debt and interest then unpaid should thereupon become due and payable, and a writ of scire facias might issue forthwith on the mortgage. The defendant having made default in the payment of the two semiannual installments of interest due on July 1, 1910, and January 1, 1911, the plaintiff on May 23, 1911, issued a scire facias on the mortgage. To the plaintiff's statement of claim the defendant filed an affidavit of defense, denying that he was in default in the payment of the principal sum or interest, and averring substantially that about March 1, 1911, Erny, the plaintiff, and Sauer, the defendant, entered into an oral agreement by which the defendant was to surrender possession of the mortgaged property, make a deed of conveyance for the same to the plaintiff, and, in consideration therefor, the defendant was to be released from further obligation on account of the mortgage; that, in pursuance of the agreement, the defendant rented a house and removed from the premises, and gave possession to the plaintiff, who at the time of bringing the suit was in possession under the oral agreement. The affidavit of defense further avers that the defendant, in pursuance of the agreement and at plaintiff's request, gave his title deeds to the plaintiff for the purpose of having a deed prepared for the defendant to execute and that he is ready and willing to execute a deed at any time he receives it. [1] The defendant contends that the mortgage was released by the parol agreement entered into between the parties, and that, therefore, the plaintiff has no right to proceed by scire facias to obtain judgment and sell the premises. The difficulty with the defendant's contention is that conceding, as But we are not impressed with the defendant's contention that the matter and acts he refers to constitute a consideration which will support the agreement. At the time the writ was issued in this case, the defendant had made default in payment of the semiannual installment of interest due on July 1, 1910, and January 1, 1911. The plaintiff therefore, on March 1, 1911, the date of the alleged oral agreement, could have proceeded by scire facias, obtained judgment, sold the premises, and collected the indebtedness due him, secured by the bond and mortgage; or he could have entered at pleasure, take actual possession, used the land and reaped its profits. Tryon v. Munson, 77 Pa. 250. If the defendant refused to give possession, he could have been ousted by an action of ejectment. Assuming that he gave possession in pursuance of the alleged parol agreement, he did nothing more than it was his duty to do, or what he could have been compelled by legal process to do. No consideration therefore passed to the plaintiff when the defendant voluntarily surrendered possession of the premises to him in pursuance of the agreement. Wimer v. Worth Township Poor Overseers, 104 Pa. 317; Fink v. Smith, 170 Pa. 124, 32 Atl. 566, 50 Am. St. Rep. 750; Dunn v. Washington Building & Loan Association, 2 Penny. 109. [2] In the Fink Case it is said (at page 128 of 170 Pa., at page 566 of 32 Atl. [50 Am. St. Rep. 750]): "A promise made by the owner to obtain possession of his goods, which at the time are wrongfully withheld from him, is without consideration." Mr. Justice Trunkey, delivering the opinion in the Wimer Case, says (at page 320 of 104 Pa.): "Where a legal obligation exists, a cumulative promise to perform it, unless upon a new consideration, is a nullity. * * A promise thing to which a party is already legally | Hines, a witness to the accident, who was bound." We are of the opinion that the affi- called by the plaintiff, testified as follows: davit sets up no legal defense to the plain-"Q. Where was the car when she stepped on tiff's claim, and that therefore the rule for the track? A. The car was very near on judgment was properly made absolute. The judgment is affirmed. (234 Pa. 335) FLYNN v. PITTSBURGH RYS. CO. STREET RAILROADS (§ 100*)-INJURY TO PE- Where a woman on a clear day approaches a street railway track where there is a view of the track for more than a mile in the direction of an approaching car, and is struck the instant she goes on the track, she is guilty of contributory negligence, and is not relieved from that charge because she was nearsighted. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. § 217; Dec. Dig. § 100.*] Appeal from Court of Common Pleas, Allegheny County. top of her when she stepped on the track. * Q. And the car was on top of her when she stepped on the first rail, wasn't it? A. Yes, sir. Q. And she practically stepped in front of that moving car, didn't she? A. Yes, sir." Her own daughter, Mrs. Lillian Mulroy, who witnessed the collision, stated that as soon as her mother stepped across the first rail the car struck her about the center of the track. In Crooks v. Pittsburgh Railways Company, 216 Pa. 590, 66 Atl. 142, we said: "Where a foot passenger walks or steps directly in front of an approaching car, and is struck at the instant he sets his foot between the rails, there is but one inference which can reasonably be drawn from that fact, and that is the inference of contributory negligence. undisputed as to the manner in which this most unfortunate accident occurred. As we have seen, one step, or at the most two, carried the deceased from a point outside the line of the track into collision with the car. It must have occurred in less than a second of time. The facts speak for themselves. The action of the deceased can only be charBur-acterized as contributory negligence." And so here the act of the appellee in stepping on Action by Elizabeth Flynn against the Pittsburgh Railways Company. Judgment for plaintiff, and defendant appeals. Reversed. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. William A. Challener and Clarence leigh, for appellant. Rody P. Marshall and Thomas M. Marshall, for appellee. avenue. * The testimony is the track when the car which struck her was but a few feet from her, and which she must have seen and heard if she had been looking and listening, must be regarded as contributory negligence, barring her right to recover, even if the defendant company was negligent. BROWN, J. The contributory negligence of the plaintiff below was so clear that the defendant's motion for a nonsuit should have prevailed, or, at the close of the testimony, a verdict ought to have been directed in its favor. After leaving a street car on CaliBut it is urged that the appellee ought not fornia avenue, in the city of Allegheny, the to be adjudged guilty of contributory negliappellee, with several others, walked down gence as a matter of law, for two reasons: an alley to Beaver avenue, for the purpose First, she was nearsighted; and, second, as of boarding a car on the south side of that there was a safety stop a few feet from the There were two tracks of the de- alley, in the direction from which the car fendant company upon it, and to reach the came, she had a right to presume it would one on the south side it was necessary to stop there. These two circumstances were cross over the one on the north. The testi- not sufficient to send to the jury the quesmony of the appellee is that, after she had tion of her contributory negligence. Though passed out of the alley, she stepped down nearsighted, she admitted that she could see, from the curb of the pavement, and looked for she says she looked to see whether a car and listened for an approaching car, and, was coming, and, even when protesting her having neither seen nor heard one, passed nearsightedness, she again admitted that she over the space between the curb and first could see a moving object across the street track-less than eight feet in width-con- from her. If she had looked when she was tinuing to look and listen for a car. The about to put her foot on the track, she would day was clear and bright, and there was have seen the car, which was then nearer to nothing to obstruct a view of the track for her than the width of the street. If she was more than a mile in the direction from which nearsighted, there was the greater reason for the car came that struck her, for it was caution on her part in crossing the street. straight and level for that distance. She Her nearsightedness, instead of relieving her was struck just as her feet were upon the from the duty of ordinary care, imposed uptrack, though the coming of the car could on her the duty of greater precaution to have been seen for the distance stated. That avoid injury. Central Railroad Company of she was struck the instant she got upon the New Jersey v. Feller, 84 Pa. 226; Mark's track is not to be questioned. William Administrator v. Petersburg Railroad Co., 88 For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |