For the opinion of the Court below, Stewart, J., see Heathcote's Estate, 17 YORK LEGAL RECORD 162. The report of the Auditor, J. R. Strawbridge, Esq., is in part as follows: the effect that a will should be construed by its four corners, and that it should be so construed as to carry out the intention of the testator. And it is equally well settled that what the testator meant to do by his will, should be determined by the The next and last matter for the con- will. It is also true that a will should sideration of your auditor is the distribu- be so construed that the children of the tion of what shall remain of the balance testator should share equally thereunder, on this "second and real estate account" if such construction is possible from the of the executrix. Counsel for Spurgeon will itself; but to the mind of your audiHeathcote and Ellen Baughman contend tor the will of the testator is clearly susthat under the will of the testator there ceptible of interpretation so that his inshould be an equal distribution among tention shall be concluded to be that the the five children and legatees of the testa- gift of the factory property to Spurgeon tor; while counsel for Lottie Lutz and Heathcote and Eilen Baughman was inMary Jane Wiley, and the guardian of tended to be a special bequest and in adLloyd Heathcote, the remaining children dition to their equal share in the distribuand legatees, contend that Spurgeon tion of the proceeds of the balance of the Heathcote and Ellen Baughman should real estate when sold, for it does not not receive any of the proceeds of the appear in and by the will nor by any sale of testator's real estate until the other testimony offered, what the value of three legatees had each received the sum the factory property was, nor does anyof $2500. In this latter view your audi- thing appear in the will that indicates tor cannot concur. The testator in his an intention on the part of the testator will, hereinbefore set forth, gave the to equalize his children int he distribuwidow the personal property during life tion of his whole estate. or widowhood, with no remainder over. This your auditor construed, in a former report, to constitute an absolute bequest, and so awarded. She After the direction to deed the factory property to the two children named, in a different and latter paragraph of the will there is authority given to the executrix The real estate, by the will, is given to to sell any of the other real estate of the the widow for life or widowhood, with a testator, and when sold she is directed to direction at any time after the decease of divide the proceeds share and share alike the testator to deed the factory property among the children of the testator. located on Baltimore Street to Spurgeon has no discretion whatsoever as to the Heathcote and Ellen Baughman. This distribution of the proceeds of the real the executrix has done. The will fur- estate that she may sell "to any person ther directs the executrix at her discre- whom she may see proper." True it is tion to pay to Lottie Lutz, Mary Jane that the executrix is authorized by the Heathcote (now Wiley) and Lloyd will to pay over to Lottie Lutz, Mary Heathcote, each the sum of $2500. As Jane Wiley and Lloyd Heathcote each the the personal estate was insufficient to en- sum of $2500, but this is to be at her dis able the executrix to comply with this cretion. Upon what fund is she to exerexercise of her discretion, it is now concise this discretion? Was it the personal tended by the parties interested that she estate, which, by a legal construction of should pay to these three children each the bequest thereof, was the absolute the sum of $2500 out of the proceeds of property of the executrix? Had the tesreal estate which she is authorized to tator intended Lottie Lutz, Mary Jane sell when she sees proper. And just here your auditor desires to state that the executrix and accountant made known to your auditor ter desire to exercise her discretion now, to pay out of the proceeds of the real estate to Lottie Lutz, Mary Jane Wiley and Lloyd Heathcote each the sum of $2500. Wiley and Lloyd Heathcote to have each $2500 out of the proceeds of the remaining real estate before Spurgeon Heathcote and Ellen Baughman should participate therein, why would he have left it to the discretion of the executrix? And why would he have imposed upon her an absolution discretion in a latter clause of It requires no citation of authorities to the will to divide the proeeeds of the real York Legal Record. Vol. XVIII. THURSDAY, AUGUST 4, 1904. No. 10. estate equally among all his five children? Whatever view is taken of the direction to pay Lottie Lutz, Mary Jane Wiley and Lloyd Heathcote each the sum of $2500 at the discretion of the executrix as to the source of the moneys to meet the payment, there certainly can be no doubt as to the direction of the testator to make an equal division of the proceeds of all the real estate, when sold, with the exception of the factory property. This direction as to an equal distribution of the proceeds of the remaining real estate, is in a clause of the will later than the one in which the executrix is directed at her discretion to pay to each of the three children $2500 each. If there is a conflict between the two clauses of the will and they are inconsistent the rule of construction is, that the latter clause shall prevail, and if your auditor's vlew of the will is correct, to the effect that the tes tator meant to prefer Spurgeon Heathcote and Ellen Baughman in the gift of the factory property over the other three children, and the exercise of the discretion of the executrix was to be upon the testator's bounty to her, then there are no inconsistent clauses in the will, and the construction thereof which your auditor adopts, must be correct. Your auditor hereinafter accordingly distributes the net balance on the account to the five children of the testator in From this decree this appeal was taken. cretion as executrix to convey a factory property to two of his children and to pay to each of the remaining three $2500. He authorized her to sell the remainder of his real estate and to divide the proCeeds equally among all of his children. The widow conveyed the factory property to the two children named and filed a in partial account of the personal estate, amount of the inventory, $15,656 and which she charged herself with the claimed credit for stocks unsold appraised at $6,700. The balance for distribution, $4,200, was awarded to her on the supposition that since there was no bequest over she took the personal estate absolutely. She sold the remainder of the real estate and on the audit of her account the balance $3,900 was awarded in equal shares to the testator's five childExceptions to the report of the auditor were sustained by the Orphans' Court, and the fund was awarded to the ren. three children to whom bequests of $2,500 each were made, in payment thereof. The part of the will to be considered is this: "I give and bequeath to my beloved wife Sarah Heathcote all my property, real and personal, during her lifetime or while she remains my widow, directing her at any time after my decease, as my executrix, to deed the factory property located on Baltimore Street in the Borough of Glen Rock, York County, Pennsylvania, to my son Spurgeon Heathcote, and my daughter Ellen Baughman, and at her discretion as executrix, also pay over to my daughters Lottie Lutz and Mary Jane Heathcote, and my son Lloyd Heathcote each the sum of twenty-five hundred dollars. is my will that my executrix be authorized to sell any of my real estate, except the factory named above, to any person whom she may see proper, and divide the proceeds of such sale share and share alike among my children or their legal representatives. It The testator evidently intended to give widowhood in his real and personal estate his widow the estate for life only or with remainder to his children, each to June 15, 1904. FELL, J.-The testa- take an equal but a designated share. If tor left surviving him a widow, who is his intention in regard to the estate which the executrix of his will, and five child- his widow should take in the personalty ren. He gave all of his estate to his is defeated by a construction which the widow for life or as long as she remained aw places on his will and the shares of ibs widow. He directed her in her dis-three of his children are diminished there by, the court cannot give effect to his intention under the circumstances by writing a new will for him. The executrix had a discretion when to sell the real es tate not specially devised, but the direction to divide the proceeds of the sale share and share alike among all the children was mandatory. That he intended equality of distribution is only a surmise, since we have no knowledge of the value of the factory property. But his intention in this regard is not open to inquiry in view of his distinct and positive direction as to what each child should take. This direction would prevail against anexpressed intention to make an equal division; McKibbon's Estate, 207 Pa. 1. There was not a conversion of the real estate. There was nothing in the will from which an intention to charge the legacies on the land can be inferred. There was no direction to sell it, no necessity to sell it in order to carry out the provisions of the will, and no blending of the real and personal assets which shows an intention to create a fund and bequeath it as money. The personal estate is the primary and prima facie the exclusive fund for the payment of legacies, and an intention to charge the real estate will not be inferred from the mere fact that there is a deficiency of personal estate; Duvall's Estate, 146 Pa. 176. The decree is reversed, and it is now directed that distribution be made in accordance with this opinion. QUARTER SESSIONS. Road in Springfield Township, No. 2. Location-Damages-Commissioners' ac tion. An exception to a road report that "the proceedings of the viewers were irregular" is too geueral, and will be dismissed. Where the report and the draft locate a road at a different terminus from that named in the petition, and are irreconcilable with each other and the facts, the report must be set aside. Insufficiency of damages is not ground for exceptions to a report. The remedy must be sought in reviews and re-reviews. An exception that the proposed road is of no public utility will be dismissed. An exception that the road is not of such public utility that the damages should be paid by the county can only be made by the county authorities. the testimony, the Court should not and will not approve a report locating a road taking any part of so important a farm building as a barn. It is the duty of the County Commissioners excessive damages. to act upon road reports excepted to because of portions of a farm from a stream of water is not The cutting off of a spring from a house, or ground for setting aside a report. Exceptions to amended report of viewers. For the opinion of the Court, Bittenger, P. J., on the first report, see Road in Springfield Township, 17 YORK LEGAL RECORD 125. The decree in that case ordered a recommittal of the report to the viewers for amendment of errors in the description of the owners and an endeavor to procure release of damages. Exceptions were filed to the amended report. John W. Heller and N. M. Wanner for exceptions Jere S. Black and Charles A. Hawkins for report. June 30, 1904. BITTENGER, P. J.The exceptions are as follows: Ist. The proceedings of the viewers were irregular, and not according to the provisions of the several Acts of Assembly regulating the laying out of public roads in the County of York. 2nd. The viewers did not properly take into consideration the disadvantages resulting to plaintiff from the opening of the proposed road and did not award to the exceptants proper damages for the same. 3rd. The damages awarded the several exceptants are inadequate and insufficient to compensate them for the injury they will sustain in the opening of said road. 4th. The proposed road is of no public utility and is unnecessary for the accommodation of the public; said proceedings were begun and carried out for the private benefit of one person only. 5th. The viewers do not state in their amended report whether the road is of such public utility that the amount of damages awarded in their amended report ought to be paid by the County, said damages having been added to those allowed in the former report. 6th. The road is unnecessarily located Without absolute necessity being shown by between the house and barn of Mrs. Agnes Wise, and separates her other buildings which, of course, is not permissible, the on the premises, to her great inconve- proposed road takes off the corner of the nience, danger and damage. 7th. The proposed road is unnecessarily and improperly so located upon the premises of Mrs. Agnes Wise as to cut off the water supply of the house for household purposes, and it also cuts out the water supply of about forty acres of her ground, so that access cannot be had to the same on account of said public road. 8th. The proposed road also cuts off the water supply from forty acres of land of Eli Raver, unnecessarily, to his great damage. 9th. The road is not of sufficient pub lic utility that the County should be required to pay the large amount of damages to which exceptants and others are justly entitled for the damage they will sustain, and therefore said report should be set aside by the Court." barn of Mrs. Agnes Wise, one of the ex- it will also take off the corner of the heavy stone wall of her barn yard. The road must be opened as laid out. Its location can not be affected or altered by parol testimony. The viewers are confined to the termini, and the road reported for the approval of the Court must conform to them. The draft is part of the report, and as they correspond and the testimony establishes the fact that the reported road will not end near the N. C. Railway, as described in the petition, the report must be set aside. The supervisors must be able to locate the road with certainty, from the report and draft. These are irreconcilable with the facts and do not show that certainty requisite to enable a legal opening of the proposed road. For these reasons alone the reported road must be disapproved and the proceedings set aside. The second and third exception are on account of the insufficient damages. We have so frequently decided that under the local act of A. D. 1860, under which all road proceedings in York County are had, that is not a matter for exceptions, but relief must be sought in reviews and re-reviews, that we have little patience with such exceptions as these and less with the hearing and argument of lengthy testimony in their support. These two exceptions must be dismissed. The first exception is general to a fault, and might, properly, be dismissed for that reason. The report is supplemental and on an order of recommital to the viewers for the correction of errors in a former report. They properly include in the supplemental report a draft and plot of the road and lands and premises affected by the proposed road. The testimony clearly shows that if the road is laid out according to the courses and distances as recited in the report and accompanying draft, it will not arrive at or reach the terminal described in the petition. B. F. Kohler, the surveyor and maker of the draft, testifies there is no mistake in the draft and report, and that the same deseribes and presents the proposed road as laid out by the viewers. Allen M. Seitz, Samuel L. Aldinger and Edward K. Seitz all testify that according to said report and draft, the terminus near the N. C. Railway will not be reached, but a different one from that mentioned in the The sixth exception is valid, because petition and the report; that the road in- it appears from the testimony that there stead of passing between the house and is room for the proposed road twenty barn of Mrs. Agnes Wise, will pass over or back of her dwelling house. In order to locate said road between the barn and house of Mrs. Wise, one of the exceptants, the said three surveyors find it necessary to change the course of the proposed road stated in the draft from N. 87′ W. to S. 87' W. With this change, The fourth exception is also dismissed. The fifth exception is not sustainable for the reason that this matter was covered in the original report; and that the exceptants are not interested therein, but the county. feet in width where it passes between the house and barn of Mrs. Wise, without taking any portion of her barn and the same can not be moved on account of the hill in its rear, and the nearness of the stream of water. Without absolute necessity being shown by testimony, the Court should not and will not approve a report locating a road taking any part of inasmuch as unnecessary and seriousso important a farm building as a barn. damages are inflicted upon the exceptWhile the report will not be set aside ants. for damages assessed, inadequate in We do not think the cutting off the amount, the Court will not approve the spring of Mrs. Wise from the house, or infliction of unnecessary inconvenience a portion of the farms of the exceptants and injury on land owners on the route from the stream of water, is ground to set of survey, in the location of public roads aside the report. There is a lane on the properties about on the location of the The fourth section of the Act of 17th proposed road, and it has been there for February, 1860, P. L. page 61, provides: many years. The spring is across the "That it is hereby made the duty of said lane and the lane is fenced on one side. Court to examine the amount of damages Instead of crossing the lane through one assessed as aforesaid; and if it shall ap- gateway or other means of passage across pear to said Court that the amount of damages assessed on the location of said road or bridge is so small that the public interest will be advanced by paying the same and opening the road, the Court shall decide accordingly; but if the Court shall be of opinion that the necessity for the road will not justify the county in paying the damage assessed, the Court shall refuse to confirm the report of said viewers." one enclosure, the inconvenience would be increased by the opening of the public road, making necessary a means of affording a crossing through two enclosures, one on either side of the road, a matter to increase the damages, and to be thus compensated. For the reasons stated, the second, third, fourth, fifth, seventh and eighth exceptions are dismissed. The other exceptions are sustained and the report is set aside at the costs of the petitioners. White's Petition. The sixth section is as follows: "That it shall be the duty of the Clerk of Quarter Sessions to lay all reports on roads and bridges before the County Commissioners, Horse Thief-Arrest of-Reward. to be examined by them; and it shall be their duty to report, for the information of the Court, what they know in the premises; and in regard to bridge reports, it shall be their duty, in addition, to cause an accurate estimate of the cost thereof, which they shall attach to said report, for the information of the Court and Grand Jury." This legislation has for its object the bringing before the Court objections from the County Commissioners, in the interest of the County, to excessive damages assessed, and the relief from such unjust burdens. Petitioner, a Constable of the City of York, 15, 1821, 7 Sm. 388 for the arrest of horse thieves. asked for the reward given by the Act of March HELD, that the petition must be granted. The language of the Act is sufficiently comprehensive to include every person, Constables as well as others, who may pursue and arrest a thief. It cannot be said to be against the policy of the law to do or receive that which a statute provides and gives. Allen C. Wiest for petition. E. D. Zsegler, contra. Petition for order directing the Clerk of said Court to certify that Charles S. White is entitled to reward for arresting a horse thief. For some unexplained reason this laying of road reports before the Commissioners by the Clerk of the Court and ac- July 11, 1904. STEWART, J.-Chas. tion thereon, has not been observed. At S. White is a duly elected Constable of least we have not. for years, found re- the Eighth Ward of the City of York. ports excepted to, and thereafter coming As such, he pursued and arrested one before the Court, acted on by the County Edward Oliver upon the charge of horse Commissioners. The law should be strictly complied with by the officials, because it is their duty and it would result in material benefit to the County. stealing. From information received, he discovered and located Oliver and afterwards upon warrant sworn out by the owner of the horse, upon information The Court need not and can not wait furnished to him by White, he arrested on action by the officials, but in such a Oliver, who was afterwards indicted, concase as this, it is the duty of the Court to victed and sentenced for stealing the refuse to confirm the report, especially horse. White now claims the reward of |