grant the right or confer the power upon a school district to convey in fee property acquired by it in the exercise of the power of eminent domain, or in such a case to enter into a covenant of general warranty of title; and in law the plaintiff's decedent must have been aware of this when he accepted the deed and paid the purchase money. Moreover, even though from all the facts in the case the inference might be deduced that a conveyance to the purchaser had been authorized by action of the school board, the plaintiffs were unable to produce the minutes and there were no proofs from which it could justifiably be found that the officials who signed the deed had been formally authorized to bind the district by a covenant of general warranty. The conclusion we are forced to is hard upon the estate of the plaintiff's de cedent, but it is clear beyond doubt that the referee and the learned court below erred when they permitted a recovery in this case. The assignments of error are sustained; the judgment is reversed and is here entered for the defendant.

to my grandchildren, share and share alike, to be theirs absolute.'

"The said Mary G. Meyers in October, 1910, sold the said lot to Fred B. Davis, the abovenamed plaintiff, who in November, 1912, contracted with W. M. Van Horn, the defendant, for the sale of said lot to said Van Horn. By the terms of the contract, Van Horn was to pay Davis $100 down and the balance of $3,900 within 30 days from date of said contract, upon the execution and delivery of a deed in fee simple therefor.

"Davis has executed and tendered to Van Horn a deed in fee simple but Van Horn refuses to receive the deed or pay the balance due on the contract, alleging as his reason therefor that Davis is not the owner of a fee in said land and can only transfer the life interest which Mary G. Meyers had in the land under the terms of the will.

"The case is therefore submitted to us to determine whether Mary G. Meyers under the said will took an estate in fee simple in the said land or merely a life estate. As this question has already been passed upon by the learned president judge of our orphans' court, in the distribution of the fund arising from the leasing of the coal under the real estate devised by the quoted portion of the will, we have no hesitation in following his ruling which is as follows: 'We think this case is ruled by Kirby's Estate, 235 Pa. 542 [84 Atl. 455]. Mary G. Meyers took an estate in fee tail which under the act of April 27, 1855 (P. L. 368), was enlarged to a fee simple.' By adopting this ruling the reasoning in Kirby's Estate is necessarily adopted and further discussion on our part is unnecessary.

"We therefore direct that judgment be entered against the defendant in favor of the

plaintiff in the sum of $3,900 and costs of

Appeal from Court of Common Pleas, Lu- suit." zerne County.

Argued before BROWN, MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ. L. A. Dymond, of Wilkes-Barre, for appelterveners. W. Alfred Valentine and B. W. Davis, both of Wilkes-Barre, for appellee.

Assumpsit in the nature of a case stated by Fred B. Davis against William M. Van Horn and others, interveners, to determine the ex-lant. W. H. Hines, of Wilkes-Barre, for intent of plaintiff's interest in certain real estate under the will of Mary Gates, deceased. Judgment for plaintiff, and defendant Van Horn appeals. Affirmed.

PER CURIAM. This judgment is affirmed

Garman, J., filed the following opinion in on the opinion of the court below directing it the court of common pleas:

to be entered.

TP.

(241 Pa. 179)

(Supreme Court of Pennsylvania. May 22, 1913.)

"Mary Gates, late of the borough of Kingston, died in 1890 testate, providing in her will for one Mary G. Meyers as follows: 'I give COSTELLO v. SCHOOL DIST. OF HAZLE and bequeath to Mary G. Meyers, who is now living with me, whom I have raised and cared for from the early childhood, the house and lot in Kingston borough, on the southeasterly 1. SCHOOLS AND SCHOOL DISTRICTS (§ 144*)— side of Main street, adjoining my own residence, on the northeasterly side of same, for her use and benefit during her natural life, after her dead, the same to go to her heirs, but in case she should die without leaving any children, then in that case, the same to go

EMPLOYMENT OF TEACHER.

Though the minutes of a school district showed that on July 9, 1908, the proper committee submitted a report recommending the appointment of B. as vice principal of a high school for two years, 1908, 1909, carried July 29, 1908, ordering the execution of a contract for the employment of B. for three years was

sufficient to support a contract for the full period of three years, and where B. without assignment of causes named in Act May 8, 1854 (P. L. 617), was denied the right to take up his employment, he was entitled to recover the agreed salary for the three years' term, less such amount as he earned in other employment during that term.

[Ed. Note. For other cases, see Schools and School Districts, Cent. Dig. §§ 308-314; Dec. Dig. § 144.*]

2. SCHOOLS AND SCHOOL DISTRICTS (§ 135*)EMPLOYMENT OF SCHOOL TEACHER CON

TRACTS.

That

a majority in favor of the motion.)"
on August 10, 1908, "it was decided by the
board, to have a writ of mandamus served
upon President William Garlin to compel
him to sign
* the contracts of the

*

as he

faculty of the high school, had heretofore refused to sign them, so as to get the work in the schools going and to have his signature on the contracts of the faculty aforesaid." (Here follows the roll call showing the vote and that the motion The minutes of a school district employing was carried.) A written contract was signed a teacher constitute a contract, and, though by the proper officers under the seal of the the teacher in an action for wrongful discharge school district and executed by the plaintiff, sued upon the written contract executed in pur-in which the latter was employed for the suance of the directions of the minutes, his right to recover depends upon the action of the term of three years at a compensation of school board, of which the minutes are the $110 for each school month, to be paid best evidence. monthly; reserving the right to the board of directors for the time being to dismiss said teacher at any time whatever, for any of the causes specified in the twenty-third section of the Act of May 8, 1854 (P. L. 617). The plaintiff served under this contract and received the agreed salary for one school year. The next minute shows that on August 6, 1909, one Seargent Prentis Turnbach was elected to the position in question, and when the plaintiff reported for work he found his place occupied and that he was no longer required.

[Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 130, 292-297; Dec. Dig. § 135.*]

Appeal from Court of Common Pleas, Luzerne County.

Action by Bernard E. Costello against the School District of the Township of Hazle. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before BROWN, MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ. A. C. Campbell, of Wilkes-Barre, and Abner Smith, of Hazleton, for appellant. Frank A. McGuigan, of Wilkes-Barre, and James P. Costello, of Hazleton, for appellee.

MOSCHZISKER, J. This was an action in assumpsit brought by Bernard E. Costello, a school teacher, against a school district, to recover a balance of salary alleged to be due for two school years under a written contract of employment. The case was submitted to the jury and the plaintiff was awarded a verdict covering the unpaid salary for nine months in each of the two years, less the amount that he earned in other employments during that time. Judgment was entered upon the verdict, and the defendant has appealed.

[2] The evidence shows that the services of the plaintiff were dispensed with; and this without the assignment of any of the causes named in the Act of 1854, supra. In fact, no cause for the discharge was given, and at the trial no justification was attempted; the real defense depended upon being that under the circumstances of the case the board of school directors had no power in law to make the contract with the plaintiff for three years, or, if they had such power, then the minutes were insufficient to show a proper authorization of the contract sued upon. This defense is met by our rulings in Toye v. Exeter Boro. School District, 225 Pa. 236, 240, 74 Atl. 60. There the plaintiff was elected a school principal "for the in[1] The minutes of the school district coming year," after which "motions were show: That on July 9, 1908, the proper com- made and carried that the principal be mittee submitted a report in which they said, elected for the term of three years and that "We recommend the following teachers he should receive $100 per month"; he "was for the school year 1908-1909, High dismissed by the board at the end of the first School, * vice principal, Bernard year" and brought an action to recover the Costello." That at the same meeting the agreed salary for the balance of the term. finance committee recommended that Bern- While that case was decided against the ard Costello be paid a salary of $110 per plaintiff upon the ground that the reasons month. That on July 29, 1908, it was duly assigned for his discharge were sufficient moved and seconded "that solicitor Sharpless within the Act of 1854, supra, yet, in dealbe instructed to draw contracts with teachers ing with contentions similar to those urged (naming among others Bernard Costello) as by the appellant in this case, we said: "The follows: With teachers holding a state cer- defendant * alleges error in the adtificate or permanent, a contract for three mission in evidence of the contract of emyears. (The plaintiff was within ployment, claiming that there was no evithis class.) The roll call on the motion re- dence of authority on the part of the presisulted as follows: (Here follows the vote giv-dent and secretary to execute any such coning the names of the directors and showing tract. There is no merit in this.

*

*

*

* * In the case before us, looking both Appeal from Court of Common Pleas, Lu- at the form of the deed considered as a zerne County.

whole and at the character of the transacEjectment by John T. Blease and another tion, including the circumstances surrounding against Rhoda A., Anderson. Judgment for the parties, we are constrained to hold that plaintiffs, and defendant appeals. Affirmed. * * * the said William Anderson and The material facts are set forth in the fol. Rhoda A. Anderson did not take an estate lowing excerpt from the opinion of the court by entireties with right of survivorship as to below: "William Anderson and Rhoda, his the described twelve-fifteenths, but that Wilwife, purchased and took possession of an liam Anderson took individually an undivid undivided four-fifths interest in a farm; the ed ten-fifteenths interest, and Rhoda A. An

Argued before BROWN, MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ. D. O. Coughlin, of Wilkes-Barre, for appellant. A. L. Turner, of Wilkes-Barre, for appellees.

derson took an undivided two-fifteenths in- [ [wife] her heirs, executors, administrators, terest in the said land. Judgment is direct- and assigns") would give "one-half of the ed to be entered in favor of the plaintiff, mortgage debt to each in severalty," after Mary Blease, and against the defendant, referring to the general rule governing conRhoda A. Anderson, for an undivided two- veyances to husband and wife, Mr. Justice ninths interest in said land (being an undi- Williams states (166 Pa. 649, 31 Atl. 374): vided one-third of said undivided ten-fif- "But it by no means follows that a grantor teenths), subject to the dower right of said cannot convey to them as individuals. NoRhoda A. Anderson." In addition to the body ever doubted that the husband was comforegoing facts, it appears that the purchase petent to take in severalty, and under recent money was paid by the grantees in the pro- legislation the competency of the wife to take portions represented by their respective in- and hold real estate as her own is just as terests as designated in the deed. clear as that of the husband." Then, referring to Bramberry's Est., 156 Pa. 628, 27 Atl. 405, 22 L. R. A. 594, 36 Am. St. Rep. 64, he states that it is there "said in substance that words which, in a conveyance to unmarried persons, would create a joint tenancy or a tenancy in common, would create, where the grantees were husband and wife and they were so named in the conveyance, a tenancy by the entireties," and he proceeds to say that "the converse of this proposition is equally true, viz., where the deed would create neither a tenancy in common nor a joint tenancy in unmarried persons, it will not create a tenancy by the entireties, though the grantees may be described as husband and wife." In Bedford Lodge v. Lentz, 194 Pa. 399, at page 401, 45 Atl. 378, where, in construing a conveyance to a husband and wife, it was held that an estate by entireties was not created, and the husband took for life only, Mr. Justice Dean said: "The premises of the deed, beyond question, convey to the husband and wife a fee simple in the lots, and standing alone it would be held that the husband and wife took the land by entireties. But * the habendum expressly limits the estate of the husband to one for life, with remainder to the wife. * Evidently the grantor intended the estate of the husband should end with his life, for he so says. All the cases cited by appellant are on the assumption that the estate granted is a common-law estate by entireties; no note is taken of the effect of the habendum in qualifying the estate of the This * * husband. he (the grantor)

MOSCHZISKER, J. [1] This appeal involves the construction to be placed upon and the effect to be given to a conveyance to man and wife, wherein it is expressly provided: "It is understood and agreed that there is hereby conveyed an undivided tenfifteenths part to the said William Anderson and an undivided two-fifteenths part to the said Rhoda A. Anderson, so that Rhoda A. Anderson, being already the owner of an undivided three-fifteenths part,

will be the owner of an undivided five-fifteenths part." And the question is, Did the grantee take individually in the proportions designated "without the right of survivorship," or did they take "an estate by entire ties with the right of survivorship"? A full statement of the material facts will be found in the notes of the reporter and the excerpt from the opinion of the court below published in connection herewith.

In Merritt v. Whitlock, 200 Pa. 50, at page 55, 49 Atl. 786, at page 787, after referring to our cases supporting the common-law rule that a conveyance to husband and wife is presumed to create an estate by entireties, and to the Married Women's Property Acts, Mr. Justice Mitchell states: "It may be considered as still an open question whether they (man and wife) may not, now, since the acts referred to, take as well as hold in common, if that be the actual intent, notwithstanding the legal presumption to the contrary." Also, see Alles v. Lyon, 216 Pa. 604, 66 Atl. 81, 10 L. R. A. (N. S:) 463, 116 Am. St. Rep. 791, 9 Ann. Cas. 137; Hetzel v. Lincoln, 216 Pa. 60, 64 Atl. 866. In Young's Est., 166 Pa. 645, 31 Atl. 373, where it was held that an assignment of a mortgage to a man and wife (which in the grant transferred the whole to the assignees, but in a "sort of habendum clause" provided that they should "hold in equal moieties or one-half parts as tenants in common; that is to say, one full equal moiety or half part to the said * * [husband] his heirs, executors, and assigns, and the remaining one full equal

* *

* *

*

could do and did do." Finally, in Rhodes' Est., 232 Pa. 489, at page 493, our Brother Potter states: "The intention may be made clear in a deed that the grantees, even though husband and wife, are to take estates in severalty."

[2] While we have said more than once that the Married Women's Property Acts do not abolish or affect estates by entireties (Meyer's Est., 232 Pa. 89, 81 Atl. 145, 36 L. R. A. [N. S.] 205, Ann. Cas. 1912C, 1240; Beihl v. Martin, 236 Pa. 519, 84 Atl. 953, 42 L. R. A. [N. S.] 555) where the grant expressly or in effect creates such an estate, yet at no time since the recent legislation, conferring full competency upon married women to take and hold real estate as their

conveyance to husband and wife, granting distinctly defined, undivided parts or individual estates to each, must be construed to create an estate by entireties, notwithstanding the expressed intention of the grantor to the contrary; far from so holding, all our decisions upon the subject point in the other direction. In the case at bar we concur in the conclusion reached by the learned court below that the grantees did not take by entireties, but that each took an individual, undivided interest or estate in the property in question, as particularly provided in the deed.

POTTER, J. Nancy L. Partridge, a widow, died September 20, 1895, leaving a will in which she appointed Henry R. Edmunds as her executor. She devised to him two houses "in trust to collect the revenues and rent therefrom and pay the net amount thereof to my daughter Rowena Vandever for and during the whole term of her natural life," with remainder to the granddaughters of testatrix. She further gave, devised, and bequeathed to her executor all the residue of her estate "in trust to invest and keep invested in good and safe securities the principal of my said estate and pay the net revenue and income One-third

The assignments of error are overruled, thereof as follows: and the judgment is affirmed.

(241 Pa. 158)

In re PARTRIDGE'S ESTATE.

Appeal of WALKER.

(Supreme Court of Pennsylvania. May 22, 1913.)

TRUSTS (273*)-INCOME-DISTRIBUTION.

At

Testatrix devised certain real property to her executor in trust to pay the income to testatrix's daughter for life, with remainder over, giving to the executor the residue of the estate in trust to pay one-third of the net income to the daughter for life, provided that the daugh; ter's share of the income should be so held and paid as to inure solely to her benefit. The trustee was also authorized to supply any deficiency of income needed for the daughter's comfortable maintenance out of the principal of the daughter's share of the trust fund. testatrix's death the daughter was an incurable lunatic, and the mother of two married daughters. The trustee filed an account, showing a balance of principal amounting to $49,000, and a balance of income of over $14,000; the cost of maintaining the daughter in an asylum being about $1,500 a year. It also appeared that no more could reasonably be expended for that purpose, and the balance of income was an accumulation above the amount so expended. Held, that such balance of income was payable to the trustee, and not to the daughter's committee in lunacy.

thereof to my daughter Rowena Vandever for and during the whole term of her natural life. The said interest or share and income of my said daughter Rowena to be so held and paid as to inure solely to the benefit of my daughter and not to be responsible, liable or attachable for her debts or liabilities or the debts, liabilities or engagements present or future of her husband." Testatrix further provided: "It is my will and desire that my daughter Rowena, during her lifetime, shall have every comfort and convenience consistent with her situation and condition and her interest and share of my estate. I therefore order and direct the trustee named in my said will in the event of the income of my said daughter's share of my estate not being sufficient for her comfortable maintenance and support, as herein desired and directed, and the said trustee and his successor is hereby authorized and empowered to supply any deficiency of income needed for the above purpose out of the principal of my daughter's share of my estate."

It appears from the adjudication that at the time of the death of the testatrix her daughter, Mrs. Vandever, was a lunatic, and was confined at Burn Brae, Delaware county. She still continues insane, with brief lucid intervals, and there is no hope that she will

[Ed. Note.-For other cases, see Trusts, Cent. ever be cured. She is now at the Friends' Dig. 386; Dec. Dig. § 273.*]

He

Asylum at Frankford. Her age does not appear from the testimony; but she has two daughters, both fully grown and married. While she was at Burn Brae, Joseph Fleming was appointed as her committee by the court of common pleas of Delaware county. subsequently resigned, and in May, 1911, Hervey S. Walker was appointed committee in his place. The trustee filed an account showing a balance of principal in his hands of $49,975.96, and a balance of income of trustee for the maintenance of Mrs. Vandever $14,153.69. The amount expended by the is about $1,500 a year, and the testimony shows that no more could reasonably be expended for that purpose. The balance of income on hand, as above stated, is an accumulation over and above the amount expended. At the audit of the account the committee in lunacy claimed the accumulated