purpose the said authorities shall have power to | R. R. Co., 14 Wright, 425; Craig v. Allegheny do all such acts as may be necessary and proper City, 3 P. F. Smith, 477; Robinson v. West, to effectually carry out such contracts, etc. Penna. R. R. Co., 22 P. F. Smith, 316). By This is a general law, manifestly intended to pro- subsequent legislation, the appellant was authorvide for a class of cases in which, before the ized to construct and maintain on the bed of the adoption of our present Constitution, special canal, a railroad, with branches, etc.; while the legislation was frequently invoked. As the nat- company appellant is thus invested with an abural result of the rapid development of our ma- solute title in fee to the canal lot, with the right terial resources and growth of population, espe- to use the same for railroad purposes, it by no cially in our larger cities, the public interest, means follows that its rights are so sacred or exconvenience, and safety from time to time require clusive that, under the proper exercise of the changes both in the location and construction power of eminent domain, its property may not of railroads. The Legislature, recognizing these be subjected to an easement in favor of the apfacts, authorized the proper authorities of the pellee or any other railroad company. If a respective municipal districts mentioned in the crossing can be effected, either at grade or by Act to enter into contracts for making such means of a viaduct, without materially interferchanges as in their judgment may be best adapt-ing with appellant in the exercise and enjoyment ed to secure the safety of life and property, and of its franchise, the right to make such crossing, at the same time promote the interest of the par- upon paying or securing the payment of adequate ticular municipality. The ordinance of Sep- compensation, cannot be doubted; as yet aptember, 1880, which was accepted by the appel- pellant has not constructed a branch road at the lee and forms a contract between it and the city point of the proposed crossing, but it is no doubt of Allegheny, is carefully drawn, and its pro- practicable to do so; and it is averred in the visions well guarded with the view of securing bill that in the judgment of its Board of Directhe several objects contemplated by the Act of tors, the time has come when a track should be 1874. If, in the judgment of the city councils, built from the low water mark on the Allegheny the terms and conditions on which the right of River, to the Pittsburg, Ft. Wayne, and Chicago way was granted to the appellee were best cal- Railway, by means whereof the company will culated to secure the safety of life and property have an outlet for its traffic to and from the river and promote the interest of the city, their right as the Commonwealth had when the canal was in to make the contract cannot be questioned; and, operation. Assuming, then, that a transfer track it is equally clear that the appellee was author-will forthwith be constructed on the canal lot, ized to accept and carry out the provisions of the ordinance.

We think, therefore, that on either of the grounds stated and discussed at length by the Master, the appellee has the necessary corporate authority to construct its road from the eastern to the western boundary of the city on the route specified in the ordinances granting the right of

way.

The corporate right of the appellee, thus to locate and construct its railroad, being settled, the next question is whether for the purpose of either a grade or overhead crossing, it has a right to appropriate any part of the strip of land claimed by appellant under title derived from the Commonwealth. The validity of appellant's title, and its right to hold and use the strip of land known as the canal lot for railroad purposes cannot be doubted. It has been definitely settled, by an unbroken line of decisions, that the Commonwealth acquired an absolute estate in perpetuity in the land taken and occupied for canal purposes; and by virtue of the Act authorizing the sale of the main line of the public works and sundry mesne conveyances, that title, which for all practical purposes, was a fee simple, became vested in the appellant company (Com. v. McAllister, 2 Watts, 190; Haldeman v. Pa.

from the Pittsburg, Ft. Wayne, and Chicago Railway to low water mark on the river, will the proposed crossing, by a viaduct at least twentyone feet in the clear above low water mark, supported by abutments located entirely outside the lines of appellant's lot, materially interfere with the use and enjoyment of such transfer branch? The decided weight of the testimony is that it will not; and the finding of the Master, concurred in by the Court, is to the same effect. The decree is accordingly so framed that the appellee, in constructing its bridge, across the lot in question, is required to place the same "at such an elevation as to leave at least twenty-one clear feet between the lowest part of said bridge and the datum line of the city of Allegheny." The decree further provides, "that said bridge shall rest on abutments entirely astride of the lines of plaintiff's property, and shall not be supported by any pier or other support resting on plaintiff's land; that defendant's road and the whole width of ground taken at the crossing of plaintiff's land shall not exceed twenty-four feet, and the length thereof shall be the width of plaintiff's land, which is sixty-two feet, more or less," and, in view of the future practicability or necessity for the appellant company to cross appellee's road at grade, the Court has also very properly secured

to it that privilege, coupled with the right to "The old family clock I give at my wife's decease to make application to the Court for a decree defin-ny eldest nephew or niece living, I wish the clock to be ing the terms and conditions upon which such kept in the family. grade crossing shall be constructed and maintained.

That subsequent to the death of Samuel A. Sparks, his widow Elizabeth conveyed the premises above described to defendant, Edward Waln, upon certain trusts; that in April, 1878, said Elizabeth died, leaving a will, whereby she appointed defendant, Henry T. Fox, as her executor, granting to him full power of sale of her real estate.

The bill then further averred, that complainants were advised that the fee of six-sevenths of the premises above described was vested in them as remaindermen under their uncle's will, but that January 18, 1882. the defendants, Waln and Fox, each claimed to hold the legal title to said premises, alleging that said Samuel A. Sparks had devised a fee therein by the terms of his will to his widow. The bill, therefore, prayed for an injunction to restrain defendants, Waln and Fox, or either of them, from collecting the rent of said premises, and for a decree fixing complainant's rights thereto.

tenant of the essential rights which the law an- are made in a will is rarely of much importance. nexes to it.

Doughty v. Browne, 4 Yeates, 179.

Kepple's Appeal, 3 Smith, 211.

Quillman v. Custer, 7 Id. 125.
Doebler's Appeal, 14 Id. 9.

Shirey v. Postlethwaite, 22 Id. 39.
Cox v. Rogers, 27 Id. 160.

If it was intended that the widow was to enjoy a life estate only, and dispose of the remainder by will, that of itself imports a fee.

Insurance Co. v. Chambers, 10 Wright, 490.
Norris v. Hensley, 27 Cal. 439.
Gleason v. Fayerweather, 4 Gray, 348.
Redfield on Wills, part 1, page 448.

John G. Johnson, for the appellees.
[SHARSWOOD, C. J. Is not this an ejectment
bill? A bill to remove a cloud on title can only
be brought by one in possession.]

A pure question of law is raised by the bill and answer all the parties in interest are before the Court, and we ask the Court to hear the case now as upon a case stated. We do not pray a decree as upon a bill to remove a cloud. The question will have to be decided by this Court, sooner or later.

The legacy to the testator's wife's niece, of the interest of $1000, "the said sum to be placed on first bond and mortgage well secured, the money to be given after my wife's decease," as well as the specific bequest of "the old family clock to my eldest nephew or niece living," though subsequent in order to the devise of all his real and personal estate to his wife, were clearly gifts preceding it. The will ought to be read as if they were actually written before it. Then the gift to the wife is only that which remains, and that which remains he wishes to go to his nephews and nieces which may be living at the decease of his wife. The Act of April 8, 1833 (P. L. 249), provides that "all devises of real estate shall pass the whole estate of the testator in the premises devised, although there are no words of inheritance or perpetuity, unless it appears by a devise over or by words of limitation or otherwise in the will, that the testator intended to devise a less estate." It is true that the word estate in this will would have carried the fee independent of this Act, but there is not the same clear indication of intention as where the fee is expressly given. Then it might be doubted whether the gift over of what remains was not merely of what was unconsumed or undisposed of. He has added a prohibition of any gift or bequest out of his family, which if a fee had been expressly given, might have been considered a provision in restraint of the power of alienation, and therefore void. But as it stands, it confirms the construction that the devise was but for life. She was not to give or bequeath any portion of the estate out of the family. His family consisted of his nephews and nieces, to whom the estate was limited over. The words are not precatory merely, expressing the wish that his wife should give or bequeath the estate or what remains to his nephews and nieces, but the words "I wish" are as mandatory If the will read: "I do give and bequeath to as the words "I will." The cases relied on by my beloved wife Elizabeth all my real and per- the learned counsel for the appellant were all sonal estate, and at her decease I wish my estate decided upon the peculiar wording of the will in which remains to go to my nephews and nieces each particular instance. Thus in Hambright's which may be living at that time," there could Appeal (2 Grant, 320) a sum of money was left be no doubt that it gave an estate for life to the to the wife "for her full use during her lifetime" widow, with remainder over to nephews and and "if any left" he desired it to go over. In nieces. This construction is not rendered doubt-Jauritche v. Proctor (12 Wright, 466), the husful by the addition of the words, "she at no band named his wife as his "sole and only heir time to give or bequeath any portion of said of all his property real and personal," that she estate out of my family." The subsequent was not to divest herself of what he might leave clauses do but add force to this construction.

[SHARSWOOD, C. J. We do not wish to make any precedent which may seem to encourage what appears to be a growing tendency, especially in some parts of this State, to settle by bill in equity questions which properly should be tried in an ejectment. But we will consider the case.]

The only cases bearing upon the present question in Pennsylvania, are Hambright's Appeal, Jauritchev. Proctor, Church v. Disbrow, and Pennock's Estate, in each of which the words were precatory merely. There is nothing in any of them which either construes words like those in the present will or compels us to put upon them any meaning other than that which is to be gathered from a common sense reading of them.

"until after her death," and at her death what he may have left her, that is to say the residue, January 30, 1882. THE COURT. Every will to be divided, etc. Here she had the power of is to be construed from its four corners to arrive testamentary disposition, and the residue could at the true intention of the testator. Decisions only mean, as the gift was of the whole, what upon other wills may assist, but cannot control was unconsumed. In the Church v. Disbrow the construction. The order in which devises (2 Smith, 219), an express power of disposition

was given during life, and a mere wish expressed that she would leave the property remaining at her death for a charitable use. In like manner in Pennock's Estate (8 Harris, 266) the personal estate was all given absolutely, with the expression of a confidence that the surplus should be divided at the death of the life tenant among a class described. In Cox v. Rogers (27 Smith, 160) express power was given to the wife to use the whole of the personal property to provide for the family and at her death" what part of my personal property is then to be had" to be divided, etc. It is plain that no one of these cases resembles the will now before us. No doubt they were all rightly decided, conformably to the intention of the testator in each particular will. In this will, we find no such intention expressed or implied. Decree affirmed and appeal dismissed at the cost of the appellant.

Opinion by SHARSWOOD, C. J.

and are unable to fill many orders received from their customers. That the draft upon which suit is brought was given by defendants in payment of part of said brushes received by defendants from plaintiff in expectation that plaintiff would fulfil his contract. That by reason of plaintiff not fulfilling his contract, the defendants have been at a loss of $1000, or over, for which they have brought suit against plaintiff in Court of Common Pleas No. 2, to September Terin, 1881, No. 254, which said suit is still undetermined and pending; that the said sum of $1000 or over the defendants claim as a set-off to plaintiff's claim."

Sharp & Alleman, for the rule.

Anticipated profits do not constitute a subject of set-off.

Bunting v. Hopple, 2 WEEKLY NOTES, 445.
Hopple v. Bunting, 3 Id. 472.

Mackey v. Millar, 6 Phila. 527.

J. Hanson, contra.

Landey et al. Executors, etc., v. Hefley. Attachment execution-Attachment of a verdict obtained by the defendant in an action for tort -Assignment of the verdict before attachment. Rule to quash an attachment sur judgment, issued October 15, 1881.

Van Kleeck v. Pickering et al. The affidavit of the defendant, Hefley, in supSet-off-Anticipated profits- Unliquidated dam- port of the rule set forth: "That on October 11, ages for breach of contract-Damages for 1881, in a certain suit between James F. Hefley, which suit has been brought in another Court.deponent, to the use of Alfred H. Palmer, v. The Rule for judgment for want of a sufficient affidavit of defence.

Assumpsit, by the maker of a draft for $271.77 against the acceptor.

City of Philadelphia and the Union Passenger Railway, defendants, in C. P. No. 1, of September Term, 1875, No. 958, a verdict was awarded against the said railway company, defendant, for J. F. Colescott, one of the defendants, filed $617.70; that said verdict was founded on a the following affidavit of defence: "That about tort, to wit, for injuries inflicted upon a horse July 1, 1881, the plaintiff and defendants entered owned by deponent; that the jury were sworn into a contract by which the plaintiff agreed to and the verdict rendered under the said caption furnish to the defendants all the brushes (plain- of deponent, to use, etc.; that on November tiff being a brush manufacturer) until January 1, 23, 1877, deponent had marked his said suit to 1882, that defendants should order; and the the use of said Alfred H. Palmer, on account of defendants were to sell the same at the prices deponent's indebtedness to him on a promissory invoiced by plaintiff, receiving as their compen-note dated April 3, 1875, for $450 payable in sation ten per cent. of the sales of said brushes one year from said date; that when said note above the invoice price, the difference they were to became due and payable, deponent being in receive in addition to said ten per cent. That on straitened circumstances, but neither in the or about the middle of August, 1881, plaintiff refused and still does refuse to send any brushes according to his contract to defendants, by which defendants were and are put to great loss; as they had, relying on said contract, established a good trade for the sale of plaintiff's brushes, and were

Bankrupt or Insolvent Court assigned his said suit to said Alfred H. Palmer to extinguish said indebtedness; that the amount of said judgment, after payment of counsel fees, is not sufficient to pay said indebtedness of deponent to Palmer; that this attachment sur judgment from this

Court in a case entitled Landley et al. v. Hefley, | cient income to meet the judgment if it should of September Term, 1875, No. 910, was issued be determined that the same is liable to be taken on October 20, 1881, against deponent's verdict by the creditors of the defendant. in C. P. No. 1, and the Railway Co., defendant, Smithers, for the rule. summoned as garnishees, and that said Alfred H. Palmer has therefore been prevented from realizing the amount of said verdict.

Edward Willard, for the rule.

Damages founded upon a tort are not in their nature attachable.

Selheimer v. Elder, 38 Leg. Int., 1881, p. 480. Even if attachable after damages have been assessed by a jury, the attachment cannot hold in this case, because the suit was marked to the use of Alfred H. Palmer on November 23, 1877, and unless positive fraud in said assignment can be shown by the respondent under this rule, it should be made absolute.

R. C. Dale, contra.

There must be a clause expressly exempting from execution.

O'Brien, for garnishees, cited

Vaux v. Parke, 7 W. & S. 19.

[THAYER, P. J. Where are there any words protecting this income from execution ?] "Into their own proper hands."

[THAYER, P. J. That is certaiuly stretching a point. Those words have no such effect.] THE COURT. Rule absolute. BRIGGS, J., absent.

The question of the validity of the title of Palmer, the use plaintiff, can only be determined C. P. No. 4. by a trial before a jury. Damages based upon a tort after they have been liquidated by a verdict are the subject of an attachment.

Knabb v. Drake, 11 Har. 489.

I

"All the rest of my estate. give, devise, and bequeath unto my executors hereinafter named in trust to recover, collect, and receive the rents, issues, interests, and dividends thereof from time to time, when and as the same shall become due and payable, the taxes and expenses and repairs on the premises, and all the costs and charges attending the execution of this trust, then to pay, apply, and dispose of the net rents, issues, interest, and dividends from time to time, in manner following, that is to say, one other sixth part thereof into the proper hands of my son Albert McCana (the defendant) for and during all the term of his natural life and no longer. And at and immediately upon the decease of my said sons and daughters respectively, those in trust to grant, convey, assign, and pay over unto the child or children of each

etc.

That since the serving of the attachment, there has come into the hands of the garnishees suffi

Jan. 14, 1882.

In re Daniel Blair, Jr.

Adoption Petition to vacate decree of- Under what circumstances it will be allowed-Act of May 4, 1855.

Sur petition to vacate decree of adoption. The petition of the mother averred that after the death of the father of the child, the petitioner was in delicate health and had no means; accordingly the child was, under decree in January, 1880, adopted by Daniel Blair, Sr.; that recently the mother has again married, and although the child has been treated with great care and kindness, her present circumstances and health enable her fully to support the child, and she desires accordingly to resume possession of him, and to have the decree of adoption vacated.

The petition bore the indorsement of Daniel Blair, Sr., that he would regret to lose the child, but under the circumstances, consented to the revocation prayed for.

It having been suggested that the child might have acquired vested rights by the adoptionW. H. Lex, for the petitioner, argued― The child has no rights vested by the decree, for, under the Act of May 4, 1855, it would only take so much of its adopted parent's estate under the intestate laws as if it were a natural heir.