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down payment of $1,000 out of his personal At all events, plaintiff is in possession, and
funds then in hand. The balance was pay- if her right should at any time be questioned
able within thirty days thereafter, and find it can be tested in a proceeding at law which
ing it necessary to raise part of the money will afford an adequate remedy.
by loan, he borrowed from his mother the 8. Defendant left an employment in this
sum of $2,160 upon his oral promise to re- city at a salary of $100 per month. In the
pay it in monthly instalments of $30 with 8th paragraph of the bill it is averred that
interest at the rate of 43%, coupled with he is in good health, capable of earning that
his declaration that he would make it secure, amount, and otherwise of sufficient ability
or words to that effect. What form or to suitably support and maintain his wife
character of security he had in mind, if any, and child. The averment is not denied,
wasn't mentioned. He took the mother's but on the contrary admitted by the several
check to his own order, deposited it in bank answers; and the fact is accordingly so
with other moneys standing to his credit, found. It is also noted that on August 28,
and afterwards applied it to the payment of 1915, defendant had upwards of $500 in
the balance of the purchase money.

bank-made up in part of the $200 above
5. Mrs. Jayne now makes no claim of mentioned—which he drew on that date.
ownership, but looks to the property to 9. The relief asked for is contested only
secure the unpaid balance of the loan to- on technical grounds as an attempt to con-
gether with such expense on account of the vert Mrs. Jayne's legal title either (1) into
insurance and taxes as she has incurred a trust, contrary to the provisions of the
since defendant absconded. It was he who Act of 22 April, 1856, P. L. 532; or (2.)-a
took possession when the deed was delivered mortgage as against the Act of 8 June, 1881,
and that possession has never been disturbed. P. L. 84.
It was he who paid the cost of insurance The facts are believed to warrant the
and the taxes so long as he remained here. following
The insurance was in his name, and Mrs.

CONCLUSIONS OF LAW. Jayne had none in her name until his policy 1. As against her husband the plaintiff expired after he ran away. Other than that is entitled to relief proportioned to his cirand the payment of taxes in recent years, no cumstances and the station in life to which act suggestive of either control or ownership the wife had been accustomed so long as they has at any time been exercised by her. The lived together. Such relief should date from money so paid was $89.61 for taxes and the time of desertion, say September 1, 1915, $28 for insurance.

having regard to the valve of his real' pro6. The stipulated payments were made perty, the amount of cash traced to his by defendant and accepted by Mrs. Jayne hands when he abandoned his wife, and his until January, 1915, inclusive. These were admitted earning capacity and ability at made by check. The last one on account times to suitably maintain her. of principal bore the notation "payment No. 2. Defendant, Lawrence C. Jayne, should 17." Thereafter the interest was paid to pay to his wife the sum of thirty-five dollars the following month of July. The balance per month from the date of desertion, the owing by defendant on account of the loan first payment thereof to be deemed to have is now $1,650, with interest from July 1, become due and payable in the month of 1915.

September, 1915, and the like sum success7. Another subject of the bill is defend-ively each and every month thereafter. Thus ant's household furniture. Just before the the arrears for which he is liable at this time date of his desertion he had raised the sum will amount to the sum of seven hundred of $200 by pledging the furniture to a loan and thirty-five dollars to June 1, 1917. company in this city. The parents are 3. The Linden Street property decharged with complicity in that transaction scribed in second Conclusion of Fact is coupled with the allegation that they after-chargeable with the payment thereof for the wards succeeded to the rights of the pledgee reason that it was bought by defendant for by transfer, with intent to deprive plaintiff his own use and wholly paid for with his of the goods. This averment is not made own moneys, though in part borrowed from out. True, that loan was paid the follow- his mother. ing month by either Mr. or Mrs. Jayne, 4. Gertrude E. Jayne must be regarded though I cannot find that the bailment con- as the mere holder of the legal title to the tract was assigned to them or either of them. /property as trustee, while the beneficial

accrued an month to

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Work Legal Record

Vol. XXXI

THURSDAY, JULY 19, 1917

No. 10

| Houck & Benjamin for petitioner.

O'Brien E Kelly, contra.

May 14, 1917. EDWARDS, P. J.-The ownership is in the defendant, Lawrence April 16, 1903, P. L. 212.

petition in this case is filed under the Act of C. Jayne. As such the property is subject to seizure for his deb:s, or other liabilities in While the petition and answer are quite the nature of debts when reduced to judg. voluminous we shall refer to two facts only, ment either at law or in equity.

which, in our judgment, control the de5. What standing, if any, Gertrude E. termination of the controversy. Jayne may have to reclaim the unpaid bal

First. According to the petition itself, ance of her loan out of the property is a question which does not arise on this issue record title to the property located on Colfax

supplemented as it is by the answer, the and need not be considered. It can be de- Avenue, Scranton, is in Patrick Langan. termined only on distribution; but she He has a deed in fee simple, which has been should be enjoined as stated below.

The of record since 1907. costs should be paid by Lawrence C. Jayne. 6. A decree should accordingly be en

Second. The petitioner, Nellie Joyce, tered substantially as follows:

has no paper title of any kind. If she has (1). Enjoining both Gertrude E. Jayne any right at all, it arises from a parol promand Lawrence C. Jayne against disposing of ise on the part of Patrick Langan. the or encumbering the lands and tenements de brother, tending to establish a resulting trust

in favor of the sister, Nellie. According to scribed in the second Conclusion of Fact:

the eighth paragraph of the petition the (2). Charging said premises with the brother promised that with the proceeds" payment et the money hereinabove awarded of the sale of the Emmett Stroet property to plaintiff, to wit, the sum of $735 already "he would purchase a lot on Colfax Avenue, accrued and the further sum of $35 per build a double house on the same and convey month to be computed from June 1, 1917; to said Sarah Langan (the mother) and

(3). Directing the seizure and sale of Nellie Langan (now Nellie Joyce) a life the premises to enforce this decree if for the estate in their choice of the two sides of said period of thirty days after the same shall double house and corresponding portion of have been formally entered, the defendant, said lot, for the life of them and the surLawrence C. Jayne, shall neglect to pay vivor of them," etc. said arrears, or shall make default for the like period in and about any future instal

We add that the possession claimed by ment as the same shall accrue.

the petitioner is denied in the answer, where

in it is alleged that she is a tenant by suffer(4). Directing said Lawrence to pay the

ance only since the death of the mother in costs of this proceeding.

1916. No depositions have been taken on either side, so that the question of possession and the character of the possession, affirmed

by one party and denied by the other, is not C. P. of

Lackawanna Co. established. On account of the nature of

the answer the petitioner moved to amend Joyce's Petition.

the rule so as to allow the court to frame

an issue under the Act of 1893. Actions - Form--Settling Title to Land.

We are of the opinion that the petitioner Neither a rule to bring ejectment under Act has mistaken her remedy. She ought to April 16, 1903, P. L. 212, nor a petition for an proceed in equity to first establish the reissue under Act June 10, 1893, P. L. 215, is an ap: sulting trust claimed in her petition. The petitioner's right, if any, arises from a parol Act of 1889, as amended by the Act of promise by the holder of the legal title, tending 1903, P. L. 212, was not intended to apply to establish a resulting trust in her favor. The to a case like the one at bar. petitioner should proceed by bill in equity to first establish the resulting trust claimed in her petition. The rule to bring ejectment is disRule to bring ejectment.

charged.

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cause withou

have occurre Encyclopedi proximate c

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causes.

SUPREME COURT

judgment n. 0. v. was also refused, by Ross,
J.; Bruggeman et al. v. City of York, No.

3, 31 York LEGAL RECORD I.
City of York's Appeal.

From the judgment there entered this [BRUGGEMAN ET AL. v. CITY OF YORK,

appeal was taken.

John L. Rouse for appellant.

Niles & Neff for appellee. Negligence- Remote Cause - City Street.

June 30, 1917. Walling, J.-- This is Plaintiff brought suit to recover damages for an action for personal injuries resulting, as loss of eyesight caused by filth from a gutter en-j alleged, from an accumulation of filth in a tering her eve, by reason of a broom, with which public street. In 1912, defendant city she was cleaning the gutter, catching at a wire built the Eagle Engine House on a lot locattherein. The court below (Ross, J.,) submitted the question of negligence to the jurv,'which found ed on the west side of Jessop place, between for the plaintiff. Aomotion for judgment for the Jackson street and Rose alley in said city; defendant n. 0. v. was overruled. Ürld, to have and in so doing raised the grade of the lot been error.

and to make a convenient roadway thereto Defendant's motion for judgment n. 0. v. should have been granted on the ground that the negli- filled up the brick gutter on the north side gence complained of was not the proximate cause

of the property.

The land descended to of plaintiff's injury.

the west and raising the grade of the lot and The foul mud in the street was the condition stopping up the gutter caused the water in and perhaps remote cause of the injury, but the coiled wire which threw the mud in plaintiff's wet weather to overflow the street and face, as she pushed it with her broom, was the make a large pool, sometimes covering parts of immediate, unrelated and intervening cause of the adjoining lots, especially plaintiffs’ lot, the accident.

located on the Northeast corner of Jessop The immediate cause was not set in motion, by Place and Rose Alley. The gutter extended the original wrong doer, nor was it the result of an unbroken succession of events, or of concurring from the East down Rose Alley across

Jessop Place, and seemed to be in the nature

of an open sewer; for when the stagnant No. 125, August Term, 1914.

water, caused by the filling of the lot and Appeal from the judgment of the Court gutter as above stated, would evaporate, of Common Pleas of York County, Pa. germ ladened filth with foul odors would

be there found. This would seem to have The other questions of law and fact aris- constituted a nuisance, which the defendant, ing from the raising of the grade of a lot on although having notice, failed to abate until which defendant city was erecting a fire after the occurrence in question. engine house, and the filling and bridging

On October 21, 1912, the plaintiff, Mrs. of a gutter for the purpose of more readily Bruggeman, took a broom and went out to entering on the lot, are found in Bruggeman clean up some of the filth so deposited in the et al. v. City of York, 29 York LEGAL alley in front of her home, and, in an effort RECORD 19; Bruggeman v. City of York, to remove a coil of wire which had become 29 York Legal RECORD 85; Bruggeman's lodged in the pavement or gutter, she pushed Appeal, 30 York LEGAL RECORD 48; City it with the broom so that it sprung back, of York's Appeal, 30 York Legal Record and in so doing sent a splash of the street 53.

mud into her face and left eye, thereby causThe third litigation arose from the at- ing, as the jury found, the loss of the sight tempt of the plaintiffs to recover damages thereof. There was nothing to indicate that for the loss of an eye, by reason of defend- defendant was in any manner responsible for ant city's negligence in allowing the gutter the presence of the wire in the street. The of a city street to remain in a filthy condi- trial judge submitted the case to the jury, tion, which filth was occasioned by a change including the questions of negligence, proxiof grade of a lot and obstruction of the mate cause, etc. The jury found for the natural drainage. The jury having found plaintiffs and the court overruled defendfor the plaintiff a motion was made for ant’s motion for judgment non obstante judgment for defendant n. 0. v. A motion veredicto and entered judgment on the verto have the court in banc hear the same was dict; hence this appeal. refused; Bruggeman et al. v. City of York, In our opinion defendant's motion for No.2, 30 YORK LEGAL RECORD 205; and the judgment should have been granted on the

wire when aside from happened. ple between and fire bei

latter case

cause; Hoa

Michigan 293; as wa not the exp v. Alleghen was the brt want of a g County, 18 ing causes mate; and successive a one of the other the

Lebanon, 1

may be tt

Duquesnel v. Crandall result here

and probat

ence. See Co.

, 245 P:

The rule

must be til quence of

ground that the negligence complained of as under the surrounding circumstances of was not the proximate cause of plaintiff's the case might and ought to be foreseen by injury. "A proximate cause, in the law of the wrong doer as likely to flow from his evidence, is such a cause as operates to pro-acts;" Swanson v. Crandall, supra; while duce particular consequences without the such an injury as here complained of could intervention of any independent unforseen not be foreseen as a result of permitting cause without which the injuries would not mud and filth to remain in a roadway; nor have occurred;" 21 American and English could it be forseen that any personal injury Encyclopedia of Law (2 Ed.) 485. "A would result there from to a person upon the proximate cause is one which, in actual se- sidewalk. The immediate cause here was quence, undisturbed by any independent not set in motion by the original wrong cause, produces the result complained of;" | doer, nor was it the result of an unbroken Behling v. Pipe Lines, 160 Pa. 359. "A succession of events, or of concurring causes. prior and remote cause cannot be made the The facts being undispuied, the question basis of an action if such remote cause did of proximate cause is for the court; Dougnothing more than furnish the condition or lass v. Railroad Co., 209 Pa. 128; Pass. Ry. give rise to the occasion by which the injury Co. v. Trich, 117 Pa. 390. We do not was made possible, if there intervened be deem it necessary to decide whether a mutween such prior or remote cause and the nicipality is liable for personal injuries reinjury a distinct, successive, unrelated and sulting from the unsanitary condition of its efficient cause of the injury;" 29 Cyc. 496. streets. Here the foul mud in the street was the The judgment of the court below is recondition and perhaps remote cause of the versed and is here entered for the defendant. injury, but the coiled wire which threw the mud in plaintiff's face, as she pushed it with her broom, was the immediate, unrelated Fetrow's Estate. No. 2. and intervening cause of the accident. The

[RUPP'S APPEAL.] mud was passive; the active agent was the wire when set in motion by the broom, and Will-Life Tenant - Contingent Remainaside from it the accident would not have ders-Period of Vesting-Survivorship. happened. We see no difference in principle between mud being thrown by a wire life and directed that at her death it shall be sold

Testator devised certain real estate to D for and fire being carried by water, and in the and the proceeds “equally divided among the surlatter case the water was the intervening viving devisees named in my will, or their legal cause; Hoag and Alger v. Lake Shore and representatives." The auditor distributed ihe Michigan Southern Railroad Co., 85 Pa. proceeds of sale of the real estate amongst the

devisees who survived the testator or their legal 293; as was the fall from the ladder, and

representatives.

On exceptions filed, the court not the exposed live electric wire, in Elliott below, WanNER, P. J., held that the entire fund v. Allegheny L. Co., 204 Pa. 508, and as should have been awarded to the executors of F, was the breaking of the traces and not the who was the only legatee who survived the life

On appeal, HELD, to have been error, and want of a guard rail in Willis v. Armstrong that the Auditor's report must be confirmed. County, 183 Pa. 184. And such interven- The reasonable interpretation of the phrase ing cause may be either animate or inani- “surviving devisees or their legal representamate; and where two distinct causes are tor's' death and construe “or their legal repre

tives,” is to refer the word "surviving' to testasuccessive and unrelated in their operation, sentatives," as intended to prevent the lapse of one of them must be the proximate and the the shares of any legatees who might die before other the remote cause; Herr v. City of the time for distribution should arrive. Lebanon, 149 Pa. 222. The act of a child

This interpretation placed upon the phrase

avoids intestacy and secures equality of distribumay be the proximate cause: Rhad v. tion among the legatees. Duquesne Light Co., 255 Pa. 409; Swanson v. Crandall, 2 Pa. Super. Ct. 85. The final

Appeal from the decree of the Orphans' result here cannot be said to be the natural Court of York County, Pa. and probable result of defendant's neglig- For the report of the Auditor (McClean ence. See King v. Lehigh Valley R. R. Stock) making distribution, and the opinion Co., 245 Pa. 25.

of the court below (WANNER, P. J.,) susThe rule is well settled, "that the injury taining exceptions to the Auditor's report, must be the natural and probable conse- see Fetrow's Estate, 30 YORK LEGAL quence of the negligence; such a consequence Record 141.

tenant.

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From that decree this appeal was taken. visces” are to apply to a period other than
Cochran, Williams & Kain for appellant. that of testator's death. In order to make
Jacob E. Weuver and D. H. Yost for them apply to the period of the life-tenant's

, appellee.

al word "then"." But that word is not June 30, 1917. Potter, J.-Joshua found in the will, in that connection. It Fetrow died February 25, 1884, leaving a also became necessary practically to ignore will which contained the following provis- the words "or their legal representatives." ion: "I give devise and bequeath unto Lu- It is true that the court suggests that these cinda Dietz, widow of Daniel Dietz, de- words were intended to provide an alternaceased, now living with me during her tive distribution of the fund in the event of natural life, the house and land situate in all the legatees named in the will dying besaid Spring Garden Township, adjoining fore the death of the life-tenant. But the the Codorus Navigation, Loucks Mill Road result of such a construction is that in case and lands of Daniel Immel and Alexander one of the legatees survived the life-tenant, Hay and being the same premises lately oc- which actually occurred, the words “or their cupied by Joseph Sample. She to have and legal representatives" are given no effect hold the same and keep it in repair during whatever. her natural life at her death the same to be We think the reasonable interpretation of sold and the proceeds thereof to be equally the phrase "surviving devisees or their legal divided among the surviving devises (de- representatives," is to refer the word "survisees) named in this will or their legal viving" in accordance with the rule, to testarepresentatives."

tor's death and construe "or their legal Lucinda Dietz, who subsequently married representatives" (whether meaning executors John Rutter, died December 15, 1914, and and administrators, heirs or next of kin), as the property devised to her for life was sold intended to prevent the lapse of the shares by George A. Fetrow, administrator d. b. n. of any legatees who might die before the c. t. a. of Joshua Fetrow.

time for distribution should arrive. The The question here in controversy, is court admits that the words must have been whether, when the testator directed that given that meaning, if all the legatees had the proceeds of the real estate in which died before the date of the life-tenant's death, he' devised a life interest to Lucinda Dietz, It is not probable that the testator intended "be equally divided among the surviving that, if none of the legatees should live to devisees named in this will or their legal rep- share in the fund, the legal representatives resentatives," he intended that the recipients of all should take, but if one only should of his bounty should be the devisees who were survive, the legal representatives should all living at the time of his own death, or those be excluded. We think the construction only who would survive the life tenant. adopted by the auditor was in accordance The auditor held that he intended the for- with the testator's intention. If "surviving" mer, while the court below was of the opin. refers to the death of the life-tenant, as was ion that the latter was intended. In the held by the court below, then the death of one case the legacies would vest at the death Michael Fetrow during the life tenancy of the testator, and in the other at the death would have created an intestacy. The inof the life-tenant. As only one of the terpretation placed upon the phrase by the devisees, Michael Fetrow, survived the life auditor avoids intestacy and secures equality tenant, the court below held that he took of distribution among the legarees. We the entire fund and awarded it to his ex- think the testator evidenily intended that the ecutors.

proceeds arising from the sale of the property The general rule in Pennsylvania is, and should be divided among certain persons, always has been, that the words "survivor” who were definitely determined by his will or "surviving" following a prior gift, are as construed in Fetrow's Estate, 58 Pa. 424, understood as referring to the death of the and the legal representatives of such of them testator, unless a contrary intention is ap- as predeceased the life-tenant. parent; Shallcross's Estate, 200 Pa. 122; The assignments of error are all sustained, Woelpper's Appeal, 126 Pa. 562; Ross v. the decree of the court below is reversed, Drake, 37 Pa. 373. We find nothing in and the record is remitted that distribution the will of Joshua Fetrow which discloses may be made in accordance with the report an intention that the words "surviving de- ' of the auditor.

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