this, and to show that he did not issue in Court of Common Pleas No. 3. view of that fact. Under these facts we are forced to the con ALLEGHENY COUNTY, clusion that his execution was a fraud upon In re Petition of the CITY OF ALLEthe subsequent creditor, and that the auditor was right in distributing the proceeds of the sale to the mortgage. If in this case the burden of proof were upon the exceptant, there would not be sufficient direct evidence to support a finding of fraud, although we think that slight evidence would be sufficient to overthrow an execution issued for an amount so largely in excess of the actual debt; but being of opinion that this is not the rule of evidence, we have come to the above conclusion. The mortgagee was not vigilant, and he relied upon the statement of the defendant that he owed $800 upon this judgment, which he proposed to pay, and it is apparent that he did not watch the sheriff's sales, and that the loss of the balance of his money, if the property was worth, as stated, $3000, was largely his own fault, and the result might not have been different had Weiskircher issued only for his actual debt. Nevertheless it is our duty to protect him against a fraudulent execution. The forty-five exceptions filed by the plaintiff to the auditor's report, equalling in length the report itself, should have been much condensed, and it is impossible to take them up in detail. We have carefully examined them, and are of opinion that the auditor did not err in dismissing them. Plaintiff's forty-fifth exception and the single one of the mortgage are to the finding of the auditor that the costs should be divided between plaintiff and exceptant. The ordinary rule is that the costs be paid out of the fund for distribution, but where the conduct of a creditor has led to the incurring of costs, it is proper to impose all or a part of them upon him. The necessity for the appointment here arose from the conduct of the plaintiff, and he should pay the costs. For plaintiff, Scott & Bown. For exceptant, James T. Buchanan. GHENY for for the Appointment of Viewers for Clayton Street. Streets-Ordinances for opening-Validity. Charters-Special Privileges-Right to convey same. While a street must be laid out and its boundaries fixed before it can be opened, there is no objection to doing this in the same ordinance by which the street is opened. Where a property-owner claims damages for widening and for grading a street and makes no move to set aside the proceedings for opening the street for a number of years he cannot then be allowed to vacate the street on the ground of irregularities in the ordinance opening it. A corporation, which by the act incorporating it was exempt from having streets opened through its property, sold the property. Held, that the purchaser was not entitled to the exemption. The legislature cannot by act of assembly chartering a corporation take away the right of a municipality to lay out streets. No. 435 Nov. T., 1902. Opinion by EVANS, J. Filed March 10, 1904. The above case arises on the exceptions to the report of the board of viewers appointed to ascertain the costs, damages and expenses and assess the benefits for the grading of Clayton avenue in the city of Allegheny. The exceptant, the Western University of Pennsylvania, filed three exceptions to the report of the board of viewers, the second and third of which were abandoned on the argument of the case. The first exception is as follows: "That the grading of Clayton avenue was done and performed by the city of Allegheny under and by virtue of an ordinance authorizing the same to be done on a public street or alley, and that the said Clayton avenue for a distance of 285 feet more or less was not a public street or alley, but it was private property and a private roadway running through the property of exceptant, and that the same has never been legally opened by the said city of Allegheny, and that conse quently the whole of the proceedings at the above number and term are null and void." | That part of Clayton avenue alleged to be private property of the exceptant was opened as a street by the city of Allegheny by the following ordinance, approved January 25, 1897: "An ordinance authorizing the opening of Clayton avenue through the property of the Western University of Pennsylvania, at a width of thirty feet, according to accompanying plan. "Section 1. Be it ordained and enacted, by the Select and Common Council of the city of Allegheny, and it is hereby ordained and enacted by the authority of the same, that Clayton Avenue through property of the Western University of Pennsylvania be, and the same is, hereby opened at a width of thirty feet, according to accompany ing plan. The damages caused thereby and the damages caused by the grading thereof and the benefits to pay the same to be assessed and collected in accordance with the Act of Assembly in such cases provided. "Section 2. That any ordinance or part of ordinance conflicting with the provisions of this ordinance be and the same is hereby repealed, so far as the same affects this ordinance." passed without there having been any street Now In both an opening and a location. But sup- This ordinance was adopted by a threefourths vote, under the act of May 22, 1895. By an ordinance approved August 25, 1899, the city of Allegheny widened Clayton avenue through the property in dispute to a width of thirty-five feet, and on the petition of the said city of Allegheny, filed May 28, 1900, the court appointed viewers to ascer-cordance with that survey or that plan was tain the costs, damages and expenses and assess the benefits and damages for the widening and grading of the said Clayton avenue. The viewers reported at No. 148 August Term, 1900, awarding damages and assessing benefits to the Western University of Pennsylvania, the exceptant here, from which report the Western University of Pennsylvania appealed, which appeal is now pend-pursuant to notice to hear testimony, on the ing. The ordinance under which the improvement was made in this case was approved June 29, 1900, and the contract for the grading was approved by the mayor July 30, 1900. The exceptant bases his contention on the fact that there never was a legal opening of Clayton avenue through the property of the Western University of Pennsylvania, on two grounds. First, that the ordinance for the opening of said street was 6th of July, 1900. It will be observed that the exceptant had notice of the opening and the widening of this street a considerable time prior to the grading of the street by the city of Allegheny, and yet they stood by and allowed the city to make the improvement, and have not to this day taken any steps to vacate the proceedings by which the city of Allegheny attempted to open the street, but in fact are affirming those proceedings by claiming damages for the widening of the street and damages due to the grading at No. 148 August Term, 1900. At this late Orphans' Court, ALLEGHENY COUNTY. day no court would permit exceptants to In re Estate of WM. CUNNINGHAM, vacate that part of the street passing through their property by reason of any defect or irregularity in the ordinance opening the same. That being true, even if the ordinance opening the street were irregular, by reason of the laches of the exceptant, this was a public street at the time of the passage of the ordinance for the grading of the same. If it was then a public street, no matter whether it became so by reason of the formal passage of the ordinance making it a public street, or by reason of the laches of the exceptant, the municipality had the right, and it was its duty, to improve the street, and in so improving the street it has a right to assess benefits on the property benefited to pay the cost of the improvement. This is also an answer to the second contention of the exceptant, namely, that a provision of the charter of the Allegheny Observatory Corporation prohibits the opening of the street through this property. But, in addition to this, the Allegheny Observatory Corporation having transferred the property, cannot transfer with it the restriction placed upon the powers of the municipality by the act of the legislature chartering the former corporation; and still again the legislature cannot by act of assembly chartering the corporation take away the rights of the municipality to lay out streets and highways and improve the same. In support of this principle it is only necessary to cite In re Opening of Twenty-second Street, 102 Pa. 108. For the above reasons the exceptions of the Western University of Pennsylvania to the report of viewers in above case must be dismissed. For Allegheny city, Stephen G. Porter. A trustee for holders of bonds secured by a railroad mortgage is held, in Reed v. Schmidt (Ky.) 61 L. R. A. 270, to have no right to create a pool for the purpose of buying in property for the exclusive benefit of a favor and chosen number of bondholders, but it is held that all must be given a fair opportunity to share on equal terms. Deceased. Ademption. A gift of the proceeds of real estate directed to be sold, will not be adeemed by an agreement to sell made by testator after the date of his will. No. 96 Jan. T., 1904. HAWKINS, P. J. STATEMENT. The only question involved in this case is whether or not certain legacies have been adeemed. The facts are these: The testator devised to Mrs. Ann Cunningham "the use of thirty-four (34) acres of land . . . . to be held and used by her during her lifetime;" and then follows: "In case of her death or removal then this land shall be sold and of the proceeds five hundred dollars ($500.00) shall be given my nephew Robert C. Cunningham . . and two hundred dollars ($200.00) to my niece Sarah Cunningham.” After the date of the will testator agreed to sell this land; and no deed having been made by him, specific performance of the agreement was ordered by this court after his death, and the purchase money is embraced in the present account. Mrs. Cunningham died in testator's lifetime. the fact that sale was made by testator himself in anticipation of that ordered by the will make any difference in the rights of these legacies? OPINION. Filed February 12, 1904. Does These legacies are undoubtedly specific in character. Proceeds of the sale of certain real estate are designated as the source, and are the only source of payment. "The land," said testator, "shall be sold and of the proceeds five hundred dollars ($500) shall be paid Robert C. Cunningham and two hundred dollars ($200) to my niece Sarah Cunningham." The legacies and the fund out of which they are payable are thus so connected as to be the same. The gift is of the "proceeds" themselves. The designation of this source of payment necessarily kept apart from the rest of testator's estate, For accountant, R. E. Stewart. Orphans' Court, Allegheny County. Deceased. Spendthrift trust-Execution attachment-Evidence-Husband and wife-Assignment. excludes any other. The legacies have no existence but by the will, and can only be paid as the testator points out; Walls v. Stewart, 16 Pa. 275; Welch's Appeal, 28 Id. 363. Being then specific, were they revoked by testator's sale of the land in his lifetime? The general rule undoubtedly is that when a testator sells specific property given in a legacy, or it is so changed that it cannot be called the same thing, such legacy is adeemed or revoked; for the property thus given does not belong to him at the time of his death; when the will speaks there is nothing for it to operate on; and of course the legacy must fail; Nove v. Vannoy, 6 Jones Eq. 183. But the subject of these legacies was not destroyed. It was not the land, but the proceeds of the sale of the land that was given, and that still exists. The testator simply anticipated in point of time the sale which he had intended his executors to make; the In re Estate of AUGUST AMMON, identity of proceeds is unquestioned; and they are here for distribution. The distinction between a gift of property in existence when the will is made and a gift of its value, or the proceeds of its sale is well settled. Thus where there was a gift of the proceeds of the sale of property, which was in fact sold and reinvested by testator, the proceeds being traceable, was held not a case of ademption, "because," said the court, the corpus, or thing itself, was not changed, and a second or third collection and reinvestment on other securities would not change it." "As the proceeds of sale of the property is given, it follows that such part thereof as is specified can be traced out and identified at the time of testator's death, the legacy will take effect;" Nove v. Vannoy, supra. So where "a third part of the amount of whatever sum or sums of money may arise and be received from testator's claim and demand" on a certain estate which had been bequeathed was received and invested by testator, it was held that no ademption took place; Clarke v. Browne, 2 Sm. & Gif. 524. "If," said the court, "the sums received by the court had been mixed with the general mass of his property, there would have been. more room for the argument in favor of extinction and ademption;" there would then have been a confusion of goods and implied intent to revoke; but the fund was in fact Testator directed that the share given his son, F., F., by writing, executed after he incurred the debt No. 70 Dec. T., 1903. 1904, August Ammon, who died May 5, 1902, in his will gave his estate in equal shares to his four sons. In a codicil he made the following provision as to one of the shares. "The shares devised in my will to Frederick A. Ammon is to be held in trust by my executors, the income thereof to be paid to said Frederick A. Ammon during the term of his natural life, and in case of the death of Frederick A. Ammon without creditor. The note on which the judgment was recovered was made on the 23rd of October, 1902, for three thousand dollars by C. H. Bradley, payable to the order of F. A. Ammon and endorsed by him. The original liability, however, was created by a note dated February 21, 1900, for the same amount, made and endorsed by the same parties, which was renewed from time to time, the note in suit being the last renewal. The assignment divested the defendant of practically all his property, and as his liabil execution, it is not valid as between the assignee and the attaching creditor; Skiles Appeal, 110 Pa. 248; Ferrell v. Neilton, 119 Pa. 171; Hamet v. Dundas 4 Pa. 178. The income in the executors hands accruing from F. A. Ammon's share in the estate will therefore be distributed to the attaching creditor. For accountants, S. A. Ammon and J. Scott Ferguson. For claimant, G. C. Bradshaw. Compelling Witnesses to Answer Incriminating Questions. The First National Bank of McKeesport obtained a judgment against Frederick A. Ammon, upon which an execution attach-ity to the plaintiff was incurred prior to its ment was issued, summoning the executors as garnishees, and it claims that the amount of income due him should be distributed to it. It is objected to this that the testator created a spendthrift trust for his son Frederick, and that the income is not liable for his debts. That this position is not tenable seems clear. The testator first gave his son Frederick an absolute estate, then in the codicil he limits this to a life estate and for the purpose of preserving the estate for the parties entitled in remainder, vests the legal title in his executors and directs them to pay the income to his son, during his life. No discretion is vested in them in regard to its payment; no provision that it is for his support, and there is no intention expressed or implied that it was to be free of liability for his debts. The fact that in apt words he protected the share of one of the beneficiaries from liability for his debts seems conclusive that this was not his intention as to Fred-fore the New York legislature was the occaerick's share. The will is not ambiguous, the intention of the testator must be gathered from it, and its legal construction cannot be explained or altered by his parol declarations of his understanding of the meaning of the will, or of his intention to do something else; Comfort v. Matthew, 2 W. & S. 453; Best v. Hammond, 55 Pa. 413; Sponsler's Appeal, 107 Pa. 95. The evidence as to testator's declarations tending to show he intended to create a spendthrift trust for Frederick is therefore incompetent. By writing executed on September 2, 1902, Frederick assigned to his wife all his interest in his father's estate for the expressed consideration of one dollar, and the question arises as to whether this assignment is good as between her and the attaching District Attorney Jerome, of New York city, has at last succeeded in having passed his bill compelling witnesses to answer incriminating questions, but protecting them by granting immunity from prosecution for the offense disclosed. No bill recently be sion of so much bad blood and so many hot words. It is assumed by those who think gambling is wrong that the enemies of the bill were all in sympathy with the gamblers, and charges to that effect were made, not generally, but with a plain personality. It is assumed in some quarters that all friends of decency should be foes of Canfield, and that a foe of Canfield—that is of gambling in the concrete-should be jubilant over the passage of Mr. Jerome's bill. It seems to us, however, that one may be decent, may never gamble may even be glad to see Canfield convicted, and still not feel like shouting very loud over the new law. We believe that even should the new law enable Mr. Jerome to convict Canfield, still there is good ground to question its constitutionality; |