Fetrow's Estate. No. 3. ant, and is reported in Fetrow's Estate, 30 YORK LEGAL RECORD 191, and affirmed in Legacy-Vested or Contingent - Charge on Fetrow's Estate, No. 2, supra 39. Land-Valuation. The fund for distribution in this estate Testator devised a tract of land to F for life arose after the death of Michael Fetrow, and to "his children in equal shares, with this pro- another life tenant, and accrued from the vision that they pay unto the other devisees named in this my last will, one-third of the valuation of taking, in condemnation proceedings, of a said tract of land. In case the said Michael portion of the land devised to him for life. Fetrow shall have no children at his death then! The auditor awarded two-thirds of it to the the said tract of land shall be sold and the pro- remaindermen, children and heirs of Michael ceeds thereof divided among the surviving_devisees, named in this will in equal shares." Part of this tract was taken by a railroad company in condemnation proceedings, and after the death of the life tenant the fund came into court for distribution. The auditor distributed one-third of it among the next of kin, legatees and personal representatives of "the other devisees" named in the will, which report was confirmed by the court below, WANNER, P. J. HELD, that the decree must be affirmed. The clause "with this provision that they pay unto the other devisees named" in the will, was a condition imposed upon the passing of the fee and chargeable upon the land. If it appear from the language of the will that the testator intended to couple the payment of the legacy by the devisee with the devise of the land, so that payment is to be made because or as a condition on which the devise has been made, then the real estate is in equity chareable with the payment of the legacy. If the devise of the land, upon which the legacy is charged, becomes vested either in possession or in interest immediately upon the death of the tes tator, and by the terms of the will is given subject to the payment of the legacy, the legacy must be considered likewise vested; and if the legatee should die before it becomes pavable it will pass to his or her representatives; because in such case it is plain, from the terms of the will, that the legatee was as much the object of the testator's bounty as the devisee, and that the testator intended that the latter should take the land cum Fetrow, and one-third to the representatives and next of kin of all the other devisees named in the will of Joshua Fetrow. Exceptions to his findings were filed by the heirs of Michael Fetrow, who claimed that the original devisees being all dead at the time of Michael Fetrow's decease, the legacy sinks into the devise of the land, and the devisees of the land take the same free from any charge thereon. The court below, WANNER, P. J., dismissed the exceptions and confirmed the report. From that decree this appeal was taken. Jacob E. Weaver and D. H. Yost for appellants. Stair and D. P. Klinedinst for appelles. asked to construe the following clause of Appeal from the decree of the Orphans' sold and the proceeds thereof divided among Court of York County, Pa. This is believed to be the final conclusion of the litigation arising over the will of Joshua Fetrow, who died February 25, 1864. the surviving devisees, named in this will in equal shares." There are three questions presented. valuation of said tract of land" a charge 1. Is the legacy of "one-third of the The first contention is reported in Fet-upon the real estate? It has been held that a mere direction to row's Estate, 50 Pa. 253, and was soon the devisee to pay is not sufficient to show followed by Fetrow's Estate, 58 Pa. 424. The next litigation arose after the death of Lucinda Rutter (nee Dietz), a life ten such intention; Buchannan's Appeal, 72 Pa, 448. If the intention appears by a natural and obvious implication from the words used, this is sufficient. Where the devise is Michael Fetrow's will was construed, wherecoupled with the payment of the legacy as a in, as in the one before us, there was a subcondition annexed, then the land is charged | sequent- limitation in case there should be a with the payment. The words in the clause failure of issue. we are construing are, "with this provision The children of Michael having the fee, that they shall pay." We have a number what is the nature of the charge created by of cases which have construed the word the provision above quoted? Did the legacy "provided" or its equivalent as making a of one-third of the valuation vest at testacharge upon land: thus "provided he pay"; tor's death, so as to carry it to the children's Holliday v. Summerville, 3 P. & W. 533; children or to such others as succeeded to "provided however that he shall pay for"; their rights, or, all the devisees who were in Downer v. Downer, 9 Watts 60; "provided being at Michael Fetrow's death having that he the said *** shall pay"; Pryer died before the life tenant, did the legacy v. Mark 129 Pa. 529; "upon the following lapse because there was no one who could conditions nevertheless that the said *** bring himself under the description at the pay"; Walter's Estate, 197 Pa. 555; "on time of payment in order to take the benefit condition he pay" Moran's Est. 13 Pa. of the gift? Was the legacy contingent Superior Court 251. All these expressions upon the legatee being in existence at the are held to couple the legacy with the devise time of payment? No gift of an interest to of the land and show an intention to make the "other devisees" is found in any other the payment of the legacy a condition of the clause of the will, and the gift is implied devise. The life tenant had his estate free of only from the direction to pay. If we were any burden. At his death it passed to those to stop here, we would be compelled to hold who were required to pay one-third of the that the legacy was contingent, for it has valuation. This time of payment might been repeatedly held "that where there is no have been near or remote depending upon the separate and antecedent gift which is indeduration of the life of the life tenant and we pendent of the direction and the time for do not think it within reason to suppose that payment, the legacy is contingent; and it the testator's mind was directed to any per- seems to be as well founded in reason as son who was to be personally liable for this rules of interpretation usually are.. Where but that it was a condition imposed upon a gift is only implied from a direction to the passing of the fee and chargable upon pay, it is necessarily inseparable from the the land. We, therefore, conclude that this direction, and must partake of its quality, one-third of the valuation was a charge insomuch that if the one is future and conupon the land payable at the death of tingent, so must the other be;" Gibson, C. Michael Fetrow. J., in Moore v. Smith, 9 Watts 403. "The rule is conceded that where there is a bequest in the form of a direction to pay, or pay and divide 'from and after' the happening of any event then the gift being to persons answering a particular description, if a party cannot bring himself within it he is not entitled to take the benefit of the gift"; Rosengarten v. Ashton, 228 Pa. 389 (394). We may say, in passing, that the word "devisees" has no limited meaning. It was held in Fetrow's Estate, 58 Pa. 424, by the Supreme Court in construing the same will, that the word was not restricted to those to whom the real estate was given, but included all the beneficiaries. pedago 2. Is the legacy vested or contingent? As to the estate of Michael Fetrow's We think that the present case is outside children, it vested at testator's death, the general rule. If it appear from the Michael having one son, Eli, at that time. language of the will that the testator inWhere there is a devise of a life estate fol- tended to couple the payment of the legacy lowed by a remainder to the children of the by the devisee with the devise of the land, life tenant, the estate vests at once upon the so that payment is to be made because or as birth of each child, subject to open and let a condition on which the devise has been in afterborn children and this without re-made, then the real estate is in equity chargegard to the question of whether or not the able with the payment of the legacy. In child survives the life tenant; Edward's Est., such a case the payment of the legacy is a 255 Pa. 358; Carstenses's Est. 196 Pa. 325; condition on which an unencumbered title. Rau's Est. 254 Pa. 464; Bair's Est. 255 Pa. vests in the devisee; Moran's Est., 13 Pa. 169, and cases there cited. See also Fetrow's Sup. Ct. 251 (265); Gumaer's Est., 19 Pa. Est. supra., in which another clause of Sup. Ct. 261. If, however, the devise of the land, upon which the legacy is charged, becomes vested either in possession or in interest immediately upon the death of the testator, and by the terms of the will is given subject to the payment of the legacy, the legacy must be considered likewise vested; and if the legatee should die before it becomes payable it will pass to his or her representatives; because in such case it is plain, from the terms of the will, that the legatee was as much the object of the testator's bounty as the devisee, and that the testator intended that the latter should take the land cum onere"; Hodgson v. Gemmil, 5 Rawle 99. Furthermore, the postponment of the payment of the legacy charged was not with reference to the circumstances of the legatees, as in Weaver's Est., 39 Pa. Sup. Ct. 419, but evidently only to let in the life estate of Michael Fetrow. "There is no gift in these cases except in the direction to pay, or in the direction to pay and divide. But if upon the whole will, it appears that the future gift is only postponed to let in some other interest, or, as the court has commonly expressed it, for the greater convenience of the estate, the reasoning has never been applied in this case"; Man's Est. 160 Pa. 609 (612-613); Rosengarten v. Ashton, 228 Pa. 389 (396); Engle's Est. 167 Pa. 463; Moran's Est. 13 Pa. Sup. Ct. 251. The postponment of payment is the result of testator's desire to give Michael Fetrow an unencumbered life estate in the land on which the legacy is charged and his purpose was to make the devisees in remainder not liable for the legacy until they had the means of paying it. The postponement was for the "ease and advantage" of the devisees of the land; Donner's Appeal 2 W. & S. 372; Weaver's Est. 39 Pa. Sup. Ct. 419. We think the legacy was vested. 3. When was the one-third valuation to be fixed, at testator's death or on the death of the life tenant? The more natural view to take of the matter was that the value of the one-third was to be determined at the time when it was to be paid. No useful purpose could have been served by fixing its into the enjoyment of the estate, the means of paying the legacy became theirs. We think it is reasonable to believe that it was the intention of the testator that the fixing of the amount would take place at the same time. This disposes of all the questions raised by the Appellants. The decree is affirmed. Troup's Appeal Justice of the Peace-Appeals-Laches. After hearing the evidence, the Justice of the Peace, according to defendant's witnesses, said he would inform the parties when he rendered his judgment; the plaintiff's witnesses testified that the Justice said he would render his opinion on a fixed day. Judgment was duly given on that day, the defendant being absent. The defendant presented his petition six months later, asking for a rule to file an appeal nunc pro tunc; but the that the judgment must be affirmed. Court below, Ross, J., refused the appeal. HELD, No. 17 August Term, 1915. Appeal from the judgment of the Count of Common Pleas of York County. The law and facts are given in the opinion of the Court below, Ross, J., in Ruby v. Troup, 29 YORK LEGAL RECORD 169. From the judgment there entered this appeal was taken. John A. Hoober for appellant. Jas. G. Glessner for appellee. July 13. 1917. PER CURIAM.-The only error assigned is that the Court below refused to allow the defendant to enter an appeal nunc pro tunc, taken from a judgreason that he had not received notice of the ment of a Justice of the Peace, for the entry thereof. The opinion filed by the Court in discharging the rule, so fully and clearly answers the appellant's contention that it is not necessary to add anything thereto. value as of the time when the testator died. The devisees, although receiving the fee, - could not enjoy the use of it until the death of the life tenant and then when they entered is affirmed. For the reasons given therein the judgment PUBLIC SERVICE COMMISSION. F. Klinedinst and C. H. Thomas filed their petition against the York Water Company. It is therein set forth that J. F. Kline City of York et al. v. York Water Co. dinst is a practicing physician and is the owner of certain properties in the City of Water Company - Reasonable Charge-York. No. 220 South George Street is a Meters. three-story building, the first floor of which is sub-divided into two offices. one occupied A charge of four cents per cubic yard of con- by him and the other by Dr. A. B. Shatto. crete used in the mixing of concrete for the purpose of street paving is an adequate price, the On the second floor is an apartment occutestimony disclosing that from thirty-five to forty-pied by two adults and on the third floor five gallons of water was sufficient to mix one cubic yard of concrete. Where but two, out of the more than 11,000 consumers, request the installation of meters, and where it appears that the charge is based upon the number of the water connections or outlets, for which the consumers are entitled to an unlimited supply, and where it appears that such charge is legal and not excessive and in accordance with the charter powers of the company, the Commission will make no order compelling the water company to install meters in all the homes, thereby entailing a needless expense upon the company, a necessary increase in rates and possible unjust discrimination. Where no evidence of any kind or character was ever presented in relation to the value of the company's plant, the cost of management, the nature of its resources, the rate of return upon its investment, or any proof that any dividend declared upon its stock was unfair or excessive, and where there is nothing in the case which would warrant any interference with the rates filed by the company, the complaint as to their unjustness will be dismissed. Petition. The plaintiff city passed an ordinance requiring defendant company, upon request of any consumer, to install water meters and fixing a penalty of five dollars a day for refusal so to do. The company filed a bill in equity, asking for an injunction to restrain the city from enforcing the ordinance, which injunction was granted; York Water Company v. City of York, 28 YORK LEGAL RECORD 193. The city appealed, but the Supreme Court affirmed the judgment; City of York's Appeal; 29 YORK LEGAL RECORD 13. a similar apartment similarly occupied. Each of the ground floor offices has a wash-basin with hot and cold faucets attached thereto. The charge for each of these offices is four dollars ($4.00) per year and the charge for each of the apartments, each of them having hot and cold water spigots at the kitchen sink, one bath tub with hot and cold water spigots, one wash-basin with hot and cold water spigots, and one water closet with flush, is fifteen dollars ($15.00) per annum, or a total of thirty-eight dollars ($38 00) for the entire building for an unlimited supply of water. Dr. Klinedinst is also the owner of No. 836 South George Street, in which the following water fixtures are installed: One bath tub with hot and cold water spigots, two wash-basins with hot and cold water spigots, three water closets, two kitchen sinks with hot and cold water spigots and wash tub in cellar with hot and cold water spigots, a pave wash consisting of threaded pipe with hose connection at the side of the dwelling and also water for steam boiler used in heating the house. The annual charge for an unlimited supply of water to this house with all the foregoing connections and occupied by seven people, is twenty-nine dollars ($29.00). C. H. Thomas, the other individual complainant, owns No. 636 Linden Avenue. The fixtures therein are as follows: Hot and cold water spigots in kitchen, hot and cold water spigots in bath tub and washstand, one water closet, one pave wash with threaded hose connection. This house is occupied by four persons and the charge for an unlimited supply of water is twenty-two John L. Rouse and W. F. Bay Stewart also owns No. 117 North George Street, dollars ($22.00) yer year. Mr. Thomas for petition. In accordance with the opinions of the courts, the city filed its petition before the Public Service Commission. which is also leased to a tenant. The fix C. LaRue Munson, Richard E. Cochran tures therein are as follows: Hot and cold and George Hay Kain, contra. May 15, 1917. RYAN, Commissioner.On August 24, 1915, the City of York, J. water spigots in kitchen, cold water spigots in pantry sink, one hose connection, one bath tub with hot and cold water spigots, one water closet, one wash-stand with hot and cold water spigots attached, one bath tub tion and a reasonable return to its stockwith hot and cold water spigots attached, holders on the amount of capital actually one pave wash with threaded hose connec-invested whereby a hardship and injustice is tion. The total charge, including an extra worked against the consumers and patrons fifty cents (50c.) "for a pony kept in the of said company." stable," is twenty-six dollars ($26.00) a year. Mr. Thomas also owns No. 46 South Richland Avenue, which he occupies. Therein are hot and cold water spigots in kitchen, hot and cold water spigots in bath tub, two water closets, three wash-stands with hot and cold water spigots, three wash tubs with hot and cold water spigots, two pave washes and one lawn sprinkler and for an unlimited supply of water therefor he pays thirty-one dollars ($31.00) per year. The prayers of the petitioners are: "First: That the respondents be required to furnish and install meters in their respective properties and for all other consumers who may in writing demand them to the end that said respondent may charge and collect only such rates as are reasonable, and based upon the quantity of water consumed; Second: That as to all consumers who do not request the installation of meters, the rates now charged and collected be reduced to such an amount as may be just and reasonable." ANSWER. The petitioners aver that these rates are unjust, unreasonable, excessive and exorbitant and are fixed by the respondent "according to the number of spigots in use and without regard to the probable quantity of The answer of the respondent avers that water consumed," and that in establishing it was "incorporated under the provisions of and collecting these rates the respondent An Act authorizing the Governor to incorviolates the obligation of its charter, to-wit, porate the York Water Company' approved the Act of February 8, 1916, P. L. 42, and February 8, 1816, and divers acts suppleits supplement of April 11, 18,0. P. L. 300, mentary thereto and amendatory thereof and wherein said company is required to charge by proper proceedings had in the year 1896 "such reasonable comp nsation as shall from it accepted the provisions of the present time to time be agreed on between the com- Constitution of Pennsylvania and of 'An pany and such individuals according to uni- Act to provide for the incorporation and form rates which the president and managers shall hereafter adopt, having regard to the probable quantity of water which applicants are likely to consume." regulation of certain corporations' approved the 29th day of April, 1874, and filed a certificate of such acceptance in the office of the Secretary of the Commonwealth. Immcdiately after the approval of said Act of Complainants further aver that the entire schedule of rates filed with this Commission February 8, 1816, the respondent was incorby the respondent "is unjust, unreasonable, water works and continuously since the comporated and organized and constructed its excessive and exorbitant;" that the said pletion thereof has been and now is engaged rates "are discriminatory in that as to cer- in supplying water to the public tain classes of customers said respondent that the rates for service are just and reacharges and collects rates based solely upon sonable and in accordance with the schedule the quantity of water consumed, which filed with this Commission; that the classiclasses said company supplied with a meter; fications of its patrons are suitable and whereas to the petitioners and others simi-reasonable; and as to the complaint of the larly situated whom said respondent refuses City of York as to the sum charged for the to furnish meters, much higher rates are water used for concrete paving it is averred charged and collected than from those consumers who obtain water through meters." It is further averred that "the rate charged by the respondent for water used in the making of concrete for paving purposes was excessive, unjust and unreasonable." It is further averred that the rates collected by respondent are "remunerative to a degree largely in excess of the amount necessary to pay the operating expenses of said company, its fixed charges, repairs, deprecia that not only did the City of York have knowledge and notice of said tariff and schedule of rates and of the rate named therein for water for concrete work, through the posting and publishing of said tariff and schedule of rates as required by law, but was given direct notice by the respondent that it would be required to pay for the water used in this specific instance, whereupon the said City in writing agreed to pay the petitioner for the water used for said concrete work |