not find in a not more than an administrative direction, any trust for the use of the executors, the sons of the testator. To determine whether there is a trust we are to look at the powers and duties conferred. In order that a trust may arise from the words used, the Court must be satisfied, from the words themselves, taken in connection with all the other terms of the disposition, that the testator's intention to create an express trust was as full, complete, settled, and sure as though he had given the property to hold upon a trust disclosed in the ordinary manner. Three things must concur to raise a trust. Sufficient words to create it, a definite subject, and a certain or ascertained object; and to these requisites may be added another, viz.: that the terms of the trust should be sufficiently disclosed: Eschenbach's Estate, 197 Pa., 153. 8 The purpose of the testator to be gathered from the provisions of the will, was to give his estate absolutely "to his grandchildren, the children" of his sons at the "marriage or decease" of Sally Ann Warren." If a trust was created, the dominion of the trustees is no longer necessary to accomplish the purposes of the grant. "A trust is passive where the trustee has no duty to perform, or when the trust serves no purpose, or none that would not be equally served without it:" Owen vs. Naughton, 23 Pa. Super. Ct., 640. The third question presented is, as to conversion, which is determined according to the intention of the testator, and if not expressly mentioned, must of course be derived from the general effect of the will. The contention is that there was a conversion worked by the will of the testator. In Hunt's Appeal, 105 Pa., 141, the requisites to effect conversion are stated as follows: "It ought to be settled by this time that in order to work conversion there must be either (1) a positive direction to sell, or (2) an absolute necessity to sell, or (3) such a blending of real and personal estate by the testator in his will as clearly shows that he intended to create a fund out of both real and personal estate, and to bequeath such fund as money." In this will there is no direction to sell, but the rules applied in the construction of this power may aid in applying the facts of the case to other modes of working conversion. In Anewalt's Appeal, 42 Pa., 414, the Court says: "To establish a conversion the will must direct it absolutely or out and out, irrespective of all contingencies." There must be an imperative direction to sell. If therefore the direction to convert must be positive and imperative, in the absence of such direction, conversion should not be decreed unless the intention is clear or the necessity absolute. In Lindley's Appeal, 102 Pa., 235, Mr. Justice Paxson said: "The blending of real and personal estate by a testator in his will is not of much significance unless it clearly appears that he intended thereby to create a fund raised out of both real and personal estate and bequeath said fund as money." It therefore requires some clear intention to so blend and convert, and this ought to be as distinct and positive as is required in an express direction to sell. In the testator's will there is no power to sell, and nothing in the language used which indicates a purpose to create a fund and bequeath it as money. As there was no positive direction and no expresssed purpose to sell the real estate and distribute the fund realized as money, conversion in this case must depend upon the necessity to sell to execute the provisions of the will. Such necessity must be absolute. It must arise out of the scheme of the will and not in administration. In the provisions of the testator's will we do not find any necessity for conversion. We find therefore as matter of law that there was no conversion under the will of the testator. After a careful consideration of this matter, we are of the opinion that the petition for an inquest of partition should be granted. And now, July 12, 1912, inquest is awarded as prayed for; notice to be given to the parties as directed by law. Returnable to the first day of next term. CENTRAL R. R. CO. OF N. J. vs. MAUSER & CRESSMAN. Interstate Commerce Act-Freight Charges Less Than Published Rates Suit to Recover Difference. A railroad company transported over its lines merchandise, and delivered the same in New York at a lower rate than the published rate under the Interstate Commerce Act. The freight charges were paid as demanded and the merchandise delivered. Thereafter, on suit by railroad company to recover the difference between the legal published rate and the contract rate, it was held that the plaintiff could recover. In the Court of Common Pleas of Lehigh County. Central Railroad Company of New Jersey vs. Frank B. Mauser and Allen H. Cressman, partners trading as Mauser & Cressman. No. 92 September Term, 1911. Assumpsit. Jury Trial Waived. Frank Jacobs and Charles E. Miller, for Plaintiff. Trexler, P. J., July 17, 1912. FINDING OF FACTS. The Court finds the following facts: First. The plaintiff is a corporation organized and existing under and by virtue of the laws of the State of New Jersey and under due authority of law operates a steam railroad within the States of Pennsylvania and New Jersey, and is and was at the times mentioned in plaintiff's statement filed in the above stated case a common carrier of property and passengers partly by railroad and partly by water. (Requested by plaintiff). Second. The defendants are citizens of the State of Pennsylvania and are and were at the times mentioned in plaintiff's statement engaged in the business, amongst other things, of shipping, receiving, milling and otherwise dealing in grain and grain products in the Borough of Catasauqua, County of Lehigh, and State of Pennsylvania. (Requested by plaintiff.) Third. The plaintiff in carrying on its business of transporting property and passengers as a common carrier transports the same between the various points on its own route lying between the City of New York, State of New York, and the City of Scranton, State of Pennsyl vania, and between divers places between said termini, and as well under arrangements for continuous carriage, transports property delivered to it by other common carriers whose routes form connections with the route of the plaintiff, or whose routes form parts of through routes from points of origin to points of destination on the route of this plaintiff. (Requested by plaintiff.) Fourth. On the respective dates mentioned in plaintiff's statement, the plaintiff and carriers whose lines made up the through routes from points of origin to points of destination shown as aforesaid, tranported for the defendants at their request grain or grain products. Each shipment so shown as aforesaid was milled in transit by the defendants. (Requested by plaintiff.) Fifth. The common carriers which transported said property had prior to said transportation filed with the Interstate Commerce Commission, and printed and kept open for public inspection, schedules showing the through rate for transporting shipments of grain or grain products from the points of origin, shown as aforesaid, to Jersey City, New Jersey, a point on the line of the plaintiff intermediate to the points of destination above mentioned, and plaintiff filed with the aforesaid Commission its schedules of charges for moving grain and grain products from Jersey City, New Jersey, to said points of destination and also filed with said Commission its schedules of charges for according the privilege of milling grain or grain products in transit. At the time said shipments moved there was no through rate from the points of origin to the points of destination. The only schedules of charges filed with the Commission were the joint schedules of charges to Jersey City, New Jersey, and the schedules from Jersey City to points of destination. (Requested by plaintiff.) Sixth. In each shipment mentioned in plaintiff's statement the bill of lading showed the shipper at the point of origin as consignor and himself as consignee and upon the production of the bill of lading to plaintiff's agent at Catasauqua, Penna., the shipment was delivered to defendants, who at no time paid any charges at Catasauqua for transportation or for the privilege of milling in transit. In the exercise of said privilege of milling in transit the defendants delivered to the plaintiff at Cata sauqua a quantity of flour equal in weight to a given delivery of grain to them at the same place and in each shipment said flour was consigned by the defendants to themselves as consignees with a draft attached to the bill of lading against the purchaser of the flour at the point of destination and said purchaser of the flour paid the freight charges from the respective point of origin through to point of delivery including the charge for the privilege of milling in transit at Caasauqua. (Requested by plaintiff.) Seventh. The total amount of charges at the rate published according to said Act of Congress for transporting all the shipments mentioned in plaintiff's statement including the charge for the privilege of milling in transit, from the points of origin to Jersey City is $11,212.81 which amount has been paid to plaintiffs. The total amount of charges at the rate published as aforesaid for transporting said shipments, including the charge for the privilege of milling in transit, from the points or origin to the points of destination beyond Jersey City shown on plaintiff's statement, is $13,365.48, or a difference of $2,152.67, which amount has not been paid to plaintiff. (Requested by plaintiff.) Eighth. All the freights, for which charges are made, were accepted by the plaintiff at Buffalo in the State of New York, or other points further West, and the grain shipped was, in each case, consigned to the shipper and was delivered at Catasauqua, Penna., for milling. (Requested by defendants.) Ninth. All of the consignments of grain came to the plaintiff, through contract agreements or understanding with transportation companies at Buffalo or west of that point, and they were delivered to and accepted by the plaintiff at a fixed designate rate from the point of origin to New York City. (Requested by defendants.) Tenth. The grain transported was accepted in each case by the plaintiff at fixed rates or charges agreed upon between the shipper and the plaintiff, and the freight charged was from the point of origin to New York City. (Requested by defendants.) Eleventh. Under a rule or regulation and with an understanding between the parties, the grain delivered to the defendants was to be milled at their mills in Cata |