the 25th day of July, 1891, petitioner appeals, claiming the interest from testator's death. Affirmed.

John Scott, Jr., Silas Porter, and Samuel T. Brown, for appellant. John G. Johnson, for appellees.

WILLIAMS, J. This appeal is from the same decree just considered in the appeal of William R. White and J. Henry Hentz, executors. 30 Atl. 192. The appellant contends that the orphans' court did not go far enough in the matter of interest, and alleges that the executors should be required to account to him for the income of the legacy given him in the will of his grandfather from the death of the testator down to the date of the decree. The orphans' court held him entitled to the income after he reached the age of 25 years, but denied his right to demand it prior to that time. This seems to be exactly in conformity with the directions of the will. The testator gave the sum of $50,000 to such life insurance, annuity, and trust company of Philadelphia as his executors should designate, in trust to invest the same, collect the income therefrom, and pay it over to his executors, or so much of the same "as my executors may deem sufficient to maintain and educate my grandson Wm. W. Buckley, suitably to his relationship to me, until he shall arrive at the age of twenty-five years." After he should reach the age named the will directed the trustee to pay the income, not to the executors, but to the grandson in person, during the remainder of his natural life. At the death of his grandson the testator directed the trustee to turn over "the whole principal sum, and whatever increase thereto there may be," to the lawful issue of the grandson, and, in default of lawful issue, then over to the testator's children living at the time of his own death, and to their heirs. Until the grandson reached the required age his interest in the income from the legacy was made to depend on the discretion of the executors. The trust was in effect a spendthrift trust, in which the beneficiary, whose judgment is distrusted, is left to the care of those in whom the testator confides. The testator in this case placed his executors in his own stead, and left to them the direction of the education and care of his grandson, which, had he lived, he would have controlled in accordance with his own views. The appellant has no right, therefore, under the terms of the will, to call the executors to an account for the exercise of their discretion. What he was authorized to receive and demand from the trustee he may ask the executors to account for because of their failure to appoint the trustee, but the learned orphans' court was right in holding that he had no legal claim upon the income which was not payable to him, and which the executors were empowered to use in their discretion for his maintenance and education. What rights the remainder-men may have, if

any, under the terms of the will, to require an account of the "increase" which the testator anticipated as probable, it is not now possible to determine. They are not, and can not become, parties to this proceeding. The appeal is dismissed at the cost of the appellant.

MCCORMICK et al. v. SKILES et al. (Supreme Court of Pennsylvania. Oct. 1,1894.) SALE-SET-OFF.

M., as apparent owner of three lots of tobacco, sold it to defendant, making a written contract in his own name, and describing the the lots, severally, as the "Wm. Dorey crop, "Al. Dorey crop," and the "Fowler crop." Each of these persons had a half interest in the lot described by his name, M. owning the other half. Prior to this action by M. and Al. Dorey for the balance of the price of the Al. Dorey lot, M. paid the Doreys and Fowler for their interests in the tobacco. Held that, defendant having, at the time of the purchase, made a payment, and the Fowler tobacco not having been delivered, he could use the payment, whether made on all three lots or on the Fowler lot only, as a set-off, not only because, at the time of the sale, M. was the apparent owner of all the tobacco, but also because, at the time of the action, M. was the sole equitable owner of the I claim in suit.

Appeal from court of common pleas, Lycoming county; C. R. Savidge, Judge.

Action by R. W. McCormick and Al. Dorey against Skiles & Frey for the price of tobacco sold and described as the "Al. Dorey crop." Judgment for defendants. Plaintiffs appeal. Affirmed.

C. S. McCormick, for appellants. T. C. Hipple, for appellees.

MCCOLLUM, J. It appears to the writer that McCormick was the real, as well as the apparent, owner of the tobacco when he agreed with the defendants to sell and deliver it to them. It was raised on his farm, under an arrangement with Fowler and the Doreys, which he described on the trial as follows: "They received the half for planting it and working it and taking care of it and packing it." Surely, this arrangement did not make the parties to it tenants in common of the tobacco, or partners in raising it, nor establish between them the relation of landlord and tenant. Fowler and the Doreys were employés of McCormick in raising the tobacco, and were to receive one-half of it as compensation for their labor. They were croppers, and, as such, they acquired no property in the tobacco before it was divided. Fry v. Jones, 2 Rawle, 11; Adams v. McKesson, 53 Pa. St. 81; Streel v. Frick, 56 Pa. St. 175; 4 Am. & Eng. Enc. Law, pp. 887, 889, and cases there cited. But what has been said on this subject may be regarded as a mere suggestion of a possible view of the case which was not presented on the trial or in the argument on appeal. It will not be made a factor in the decision of the case.

The appellants complain of the instructions which allowed the jury to consider the payment made by the defendants when they purchased the tobacco as a set-off in, or equitable defense to, this action. The conditions on which the jury were permitted to so consider it were that the payment was made on account of the tobacco which McCormick sold to the defendants at that time, or that he became indebted to them in that amount by his failure to deliver the Fowler crop in accordance with his agreement. We think the instructions, read in the light of these conditions or qualifications and the evidence in the case, were promotive of justice and free from error. In the first place, McCormick, as apparent owner of the tobacco, agrees to sell and deliver it to them. Their agreement was in writing, and with him. The designation of the tobacco in this agreement as the "Wm. Dorey crop and Al. Dorey crop," and as the "Fowler crop," did not make Fowler or the Doreys parties to the agreement or partners of McCormick in the sale, nor was it intended to do so. In the next place, it appears from the testimony of McCormick that he paid the Doreys one-half the sum for which the Dorey crops were sold, and it appears from the evidence of Fowler that, shortly after the sale of the tobacco to the defendants, McCormick paid him for his interest in or claim upon it, in consummation of previous negotiations between them in relation thereto. From the evidence produced by the appellants, it therefore appears that the defendants paid McCormick for all the tobacco he delivered to them; that he paid the Doreys all they were entitled to receive under his agreement with the defendants; and that he purchased and paid for the interest or claim of Fowler. He was therefore the sole equitable owner of the claim in suit, and the first payment made by the defendants, whether on account of all the tobacco purchased at that time or on account of the Fowler crop alone, was available as a set-off or equitable defense to it. Childerston v. Hammon, 9 Serg. & R. 68. The specifications of error are overruled. Judgment affirmed.

the value thereof claimed by plaintiff, that it was error for the court to speak of the peculiar fitness of plaintiff by reason of the information he had acquired in the employ of the grantor, without alluding to the fact that in rendering services he represented the grantor as well as defendant; and to remind the jury that in fixing compensation they should remember that the litigation resulted in a victory for defendant, without reminding them that it was mainly due to the services rendered prior to his employment by defendant, or that the principal benefits of it accrued to the grantor; and in grouping all the circumstances inconsistent with the existence of a contract so as to give the impression that the court was of the opinion that quite likely it was not made, without mention of the circumstances in harmony with its existence.

Appeal from court of common pleas, Berks county; G. A. Endlich, Judge.

Action by Samuel L. Young against Benjamin F. Merkel and others. Judgment for Reversed. plaintiff. Defendants appeal.

Herbert R. Green and A. G. Green, for appellants. Wm. J. Young and E. B. Wiegand, for appellee.

The

MCCOLLUM. J. This suit was brought to recover compensation for professional services rendered in an action of ejectment in which Mendon F. Ludwig et al. were plaintiffs and George Regan was defendant. plaintiff herein was employed by Regan as early as 1868, and it appears that in pursuance of his employment he directed, and was present at, the making of surveys of the land in dispute, and assisted his associate in the preparation and trial of the case, which resulted in a verdict for the defendant on the 4th of September, 1873. A rule for a new trial having been granted, he prepared an argument against it, but for reasons which need not be stated here it was not discharged until April, 1889. As often as the rule was on the argument list, he went over and revised his previous preparation to resist it, so that it is reasonable to suppose that when the time came for arguing it he was well equipped for the performance of that duty. In 1883 or 1884 the defendants herein, having previously purchased the land of Regan on terms which enabled them to retain a portion of the purchase money until he established his title, and being desirous of hav ing the rule discharged, employed counsel to look after it, and on his suggestion they associated the present plaintiff with him in 1886. They thus became liable to the plaintiff for his services, after that date, in connection with the business for which he was employed. They say they had a contract with him by which they agreed to pay, and he agreed to accept, $20 as full compensation for assisting their other counsel in getting the rule discharged. He says there was no agreement between him and them in regard to his compensation. and that he ought and is entitled to have from them what his services are worth. Two of the defendants, and the counsel with whom the plaintiff was associated in rendering the services sued

for, testified plainly and positively that there was such a contract, and the plaintiff testified as positively and plainly that there was not. There was no attempt by either party to impeach these witnesses, and their veracity is unquestioned, save by the contradiction in their testimony, and this may be attributed to an honest difference in recollection. A peculiar feature of the case is that while the learned court very properly held that the recovery, if any, must be limited to the value of the service rendered by the plaintiff after his employment by the defendants, the trial was so conducted that it resulted in a verdict in his favor for the exact sum he claimed, to wit, one-half of his estimate of the value of the service he rendered in the case after April, 1873. It is quite evident that this action was brought on the theory that, as the defendants bought the land of Regan, they ought to pay one-half of the expense of defending his title to it. This thought pervades the whole of the plaintiff's testimony, and is frequently and plainly expressed therein; but it has neither a legal nor an equitable basis. As we have seen, Regan was bound to maintain his title in order to get the purchase money. He employed the plaintiff and other counsel to defend it, and their services in the eject ment, from the institution of it to final judg ment therein, were properly chargeable to him. That the plaintiff considered it to be his duty to Regan to continue in the case until it was finally determined is evidenced by his preparation of an argument against a new trial. by his repeated revisions of it, and his unavailing efforts to get the rule discharged during 13 years immediately preceding his employment by the defendants. It is further shown by his declaration or statement in 1884 that the case was still in his hands as counsel for Regan. In short, it is beyond question that for his services in the ejectment prior to 1886 these defendants are not liable. What, then, were his services in the case after that time? Were they performed under a contract? If not, what was their value? These were questions to be answered by the jury upon a dispassionate consideration of all the testimony. To assist them in the performance of their duty, the court was required to instruct them in the law applicable to the case, and it was proper for it to call their attention to the evidence on each side, and to point out its relevancy to and its bearing on the issues. If, however, it attempted to review the evidence, it was bound to do so impartially and adequately. The principal complaint of the appellants is that the charge was in the nature of an argument for the plaintiff, and was partial, inadequate, and misleading. this complaint well founded? In support of it they direct our attention to the charge as a whole, and particularly to the portions of it which constitute the third, fourth, and fifth specifications of error. It is observable

Is

that throughout the charge particular stress was laid by the court on the alleged peculiar fitness of the plaintiff, grounded upon the information he acquired in the service and at the expense of Regan, for the work he was engaged by the defendants to assist their counsel in performing, and that there was no allusion in it to the fact that in rendering this assistance he represented Regan as well as the defendants. In that portion of the charge which forms the subject of complaint in the third specification there was a manifest purpose to throw doubt upon and discredit the defendants' testimony in relation to a contract, and to convey to the jury the impression that in the opinion of the court it was quite unlikely that such a contract was made. In it all the circumstances, remote and proximate, which the learned court apparently supposed were inconsistent with the defendants' claim that there was a contract which fixed the compensation of the plaintiff for his services after his employment by them in 1886, them in 1886, were carefully grouped, and used in execution of such purpose, but there was no mention of the circumstances in harmony with and corroborative of their claim, unless the slight reference to the memorandum on the back of the plaintiff's receipt is regarded as such. In that portion of the charge complained of in the fifth specification there was a substantial repetition of the circumstances mentioned in the third, and the jury were told that in considering them as affecting compensation they should remember that the litigation finally resulted in a victory for the defendants, but they were not reminded that it was a victory which was mainly due to the services rendered in the case prior to 1886, or that the principal benefits arising from it belonged to the estate of the defendants' vendor. But we need not pursue this subject further. The result of our examination of the case is that we are unanimously of opinion that the appellants have just cause to complain of the charge.

As the questions and answers complained of in the first and second specifications were not excepted to in the court below, they will not be considered here. There is no error in the instruction which is the subject of the fourth specification, and we cannot sustain the seventh. The third, fifth, and sixth specifications are sustained and the others are overruled. The plaintiff should have from the defendants fair and just compensation for his services in pursuance of their employment of him. In ascertaining the compensation the jury should consider the nature and amount of the services, and all the circumstances which may legitimately affect it, but the plaintiff should not be permitted to recover from the defendants, directly or indirectly, for any services he rendered in the ejectment previous to 1886. Judgment reversed, and venire facias de novo awarded.

WEIGMANN v. JONES. (Supreme Court of Pennsylvania. Oct. 1,1894.) PARTY WALLS-OPENINGS-INJUNCTION.

A deed between W. and J., owners of adjoining lots, and the former's mortgagees, recited that it was agreed that J. should convey to W. 54 inches lying between the western wall of his building and his boundary line, and pay W. $400, in consideration of which W. should execute a covenant to preserve the easement for light and air unto J., his heirs, assigns, etc., and also use such 54 inches for the purpose of erecting a wall, 16 feet high only, to the eastern end of a certain addition which W. proposed to so build that its eastern wall should rest on the boundary line between such lots, and that neither W. nor any person claiming through him should make any erection on his lot or such strip higher than 16 feet, unless there was left between the buildings a clear space of 36 inches from the height of 16 feet upward. Held, that J. could put windows in a seven-story party wall erected by him, 64 inches of which stands on W.'s ground.

openings or windows; and (3) further relief. The averments, etc., contained in the first, second, and fourth paragraphs of the bill are admitted. The third and fifth paragraphs are denied, and, for further answer to the latter, the averment of the defendant is "that, under and by virtue of a certain deed made between myself and the complainant and oth ers, dated the 12th day of October, 1880, I had the right to put the windows in the western side of my wall." A copy of said deed is appended to, and made part of, the bill. The case was heard on bill and answer, and the learned court, without filing any opinion, or, so far as appears, assigning any reason for its action, granted the relief prayed for, and entered the decree from which defendant took this appeal.

If the structure complained of, with the openings therein, was merely a party wall, erected under the law relating to that sub

Action by John H. Weigmann against Joshua R. Jones for an injunction. From a decree for plaintiff, defendant appeals. Reversed.

H. E. Garsed and Geo. Tucker Bispham, for appellant. J. Martin Rommel, for appellee.

STERRETT, C. J. In October, 1880, and prior thereto, the parties to this contention each respectively owned a lot on Cherry street, below Eighth, in Philadelphia. Plaintiff's lot, fronting 18 feet 81⁄2 inches on Eighth street, extended back easterly along the southerly line of Cherry street 105 feet 9 inches to the westerly line of defendant's lot, fronting on said last-mentioned street. The westerly face of the wall of defendant's building was 54 inches from the line dividing said lots. The first and second paragraphs of the bill contain full descriptions of said lots, respectively, with averments of title in fee thereto. The third paragraph charges paragraph charges that defendant is causing to be erected on his lot a seven-story building, and for that purpose has built a party wall on the division line between said lots. The fourth paragraph avers that said party wall, to the height of the first story, is about 24 inches in thickness, of which 62 inches stand upon plaintiff's ground, in accordance with the acts of assembly relating to party walls in such cases made and provided. The fifth paragraph charges "that, in violation of law and plaintiff's rights, the said defendant has caus ed to be built or opened in said party wall six windows overlooking the premises of plaintiff, to his great detriment and injury, notwithstanding notice to desist therefrom was given to said defendant while said wall was being erected." The prayers are for (1) an order compelling defendant to build up said openings or windows; (2) an injunction restraining the further maintenance of said

granted and acquired under the deed relied on by defendant in his answer, there would be force in the plaintiff's contention; but, without wholly ignoring defendant's right under said deed, the case cannot be treated as involving nothing more than a question under the party-wall law. The deed referred to is tripartite, the defendant and his wife being parties of the first, plaintiff and his wife parties of the second, and John Craig and George Craig, mortgagees of plaintiff's lot, parties of the third, part. After reciting defendant's seizure and possession of his lot, and fully describing the same by metes and bounds, etc., and as abutting on the easterly end of plaintiff's lot for the distance of 18 feet 8 inches, the deed contains, inter alia, the following further recitals: "And whereas, the said John H. Weigmann is desirous of erecting an addition to the building situate on his said lot, so that its eastern wall shall be built upon the boundary line between the two above-described lots of ground, and. by the statute in such case made and provided for the erection of party walls, the said Weigmann would have the right to build, for the purposes of party walls, four and one-half inches upon the land of said Jones for the space of eighteen feet eight and one-half inches, which said addition, if so erected, would greatly damage the said Jones, by cutting off the second and third story of said Jones' building from light and air; and whereas, it hath been agreed by said Jones and Weigmann that the said Jones shall convey unto the said Weigmann the said five and three-quarters inches lying between the western wall of said Jones' building and his boundary line for the length of eighteen feet eight and one-half inches, and shall also pay unto said Weigmann the sum of four hundred dollars: In consideration of such conveyance and payment, the said Weigmann is to execute a covenant running with his said land to preserve the easement for light and air unto the said Jones, his heirs and assigns, and

those claiming by, through, or under him, them, or any of them, and also that he, the said Weigmann, shall use the said five and threequarter inches so conveyed to him for the purpose of erecting a wall to the eastern end of the proposed addition of only sixteen feet in height, measured from the surface of the ground, and that he neither will, nor any person or persons, natural or artificial, claiming or to claim by, through, from, or under him, will make, cause, or suffer to be made, any erection, wall, building, part of building, or obstruction whatever upon his said lot, or the strip hereby conveyed, higher than the said sixteen feet, unless there shall be left between the buildings a clear space of at least thirty-six inches between the faces of the two walls from the height of sixteen feet upward, the starting point for this measurement being the face of the wall as now erected upon the lot of said Jones." As expressed in the granting clause, the conveyance of said 54 inches wide strip is "as well for and in consideration of the premises and of the easement for light and air hereby created as of one dollar to them in hand paid," etc., habendum, etc., "subject to the restrictions for building as herein contained." This is followed by plaintiff's covenant provided for in the second of the foregoing recitals, running with the land, and securing to defendant the said easement of light and air; also, Mrs. Weigmann's release of any dower interest she may have in said easement, and the release of said mortgagees of their interest in the same. It is difficult to conceive how the easement claimed by defendant could be more effectually secured to him, his heirs and assigns, than is done by the tripartite deed upon which he relies. In view of the provisions of that instrument, plaintiff has no case. Decree reversed, and bill dismissed; and it is ordered that the costs, including the costs of this appeal, be paid by the plaintiff.

In re ELLISON'S ESTATE. Appeal of RICHARDS. (Supreme Court of Pennsylvania. Oct. 1, 1804.) EXECUTORS REOPENING ADJUDICATION OF AcCOUNTS-LACHES OF PETITIONER.

A petition filed in 1893 by a legatee to reopen an adjudication had in 1882 of the account of the executors, who were petitioner's brothers, and one of whom was her trustee, alleged that petitioner never consented, or authorized any one to consent for her, to the admission of certain incompetent testimony introduced on the audit of the executor's accounts; that she did not know of such testimony, or of the facts relating to the settlement of the estate, until January, 1893; that no explanation was ever given her by her trustee or such executors as to such settlement, but she was, by their willful concealment of the facts from her, defrauded of a large portion of her share of the estate; and that by the fraudulent acts of such executors she was prevented from properly protecting her interests therein at the audit. Held,

that the petition did not show such laches and acquiescence on the part of petitioner as to bar her right to relief.

Appeal from orphans' court, Philadelphia county.

Petition by Elizabeth M. Richards to reopen an adjudication of the accounts of William P. Ellison and Rodman B. Ellison, surviving executors of the estate of John B. Ellison, deceased. From a judgment sustaining a demurrer to and dismissing the petition, petitioner appeals. Reversed.

The petition is as follows:

"The petition of Elizabeth M. Richards respectfully represents:

"John B. Ellison died in the city of Philadelphia on the 7th day of March, 1865, leaving a last will bearing date on the 30th day of May, 1864, a copy of which is hereunto attached. Letters testamentary upon the estate were duly granted by the register of wills of Philadelphia county to Rodman B. Ellison and William P. Ellison. The said executors entered upon their duties, and con tinued to act as executors and trustees under the provisions of the said will until the filing of their account. By the terms of the said will no distribution was to be made of the principal of the estate until the death of the wife of the said John B. Ellison, which oc curred on the 14th day of July, 1880. On the death of the said wife of John B. Ellison the said executors filed their account in the orphans' court, which was adjudicated on the 13th day of January, 1882. By the terms of the said will, on the death of the said wife of John B. Ellison the estate was to be divided into four shares.-one share to each of the four children of the decedent, of whom your petitioner was one; but the shares of your petitioner and her sister, Margaret Ellis, were, after the said distribution, to be held in trust by trustees to be selected by them respectively. The said Margaret Ellis se lected Ellis D. Williams, Esq., as her trustee, and your petitioner selected at the special instance and request of her brother, Rodman B. Ellison (the executor of the will), her brother William P. Ellison to act as the trustee for your petitioner. At the audit of the account of the said executors, your petitioner was not present, but was represented by her trustee and brother, William P. Ellison, who was also one of the executors of the said will. When the said account came up for audit, as your petitioner has been informed for the first time in January, 1893, Ellis D. Williams, Esq., trustee for Mrs. Ellis, discovered that the moneys of the estate of John B. Ellison had been used by the executors in their business during the period from 1865 (the time of the death of the decedent) to the time of the filing of their account. The said Ellis D. Williams, Esq., called this to the attention of the executors, and was about to proceed to make the executors account for the profits earned by the said money, and which were properly due to