10. The renters of the stalls of the defendant company, to unload and load the products that they sold, either at the temporary stalls on the five-foot pavement or at the stalls located on the inside of the building, drive their teams to the curb of this five-foot pavement either by backing them against or running them alongside the curb. Since 1870 they thus unloaded their goods and then again reloaded that which remained unsold. The additional space of five feet along the ten feet wide alley permitted the patrons to do this without interfering with the traffic through the ten-feet wide alley.

11. During the entire time, that is, from 1870 to the present time, this space of five feet in addition to being used by the defendant company as aforesaid, was also used by the public in connection with the ten-feet wide alley, as occasion required, and also by the plaintiff, especially since 1906, from which time he has used at least part of this additional space of five feet in driving into his warehouse.

12. This reserved space of five feet, now claimed by plaintiff as part of the alley, was necessary for the defendant. company, for its own use, and was put there by defendant company for that reason and purpose.

DISCUSSION.

The properties now owned by the plaintiff and defendant company were originally owned by the same person. Whilst so owned the owner located a ten-foot wide alley, now known as Market House Alley, through his property and thus divided it. In 1870 and 1871, when the defendant company erected its market house building, the western wall thereof was built twenty-one feet east of the western line of the ten-foot wide alley, thus leaving a space of twenty-one feet between the western wall of the market house, and the western boundary of the ten-foot wide alley, which is the eastern building line of plaintiff's property. For the purposes of the market house, that is, the accommodation of renters of stalls, and the public desiring to do business with them, a number of doors were placed in the market building opening through this western wall into the alley. Along the western wall spaces for stalls were located by numbers. A pavement, five or six feet wide, with a curbing, was placed along this entire western side. The evident purpose of this pavement was to give extra and additional accommodations to the renters of the defendant company who desired outside stalls from which to sell their produce. The shedding or roof which extended out from the wall of the market house for six feet eleven inches, protected the patrons and customers from the inclemencies of the weather.

The evidence in this case clearly shows the purpose for which the additional space of five feet now claimed as part of the alley was used. Had this space not been reserved, the renters of stalls, in driving their teams into this ten-foot wide. alley and letting them stand there to unload and reload, would have blocked and prevented free passage through this alley; that is, the evident purpose of the extra reserved space outside of the curb was for the proper carrying on of the business of defendant company so as not to interfere with the rights of those who had free passage through the ten-foot wide alley.

The plaintiff, however, contends that because these customers of the market house people, together with others who passed over the fifteen-foot space, used the entire fifteen feet, the plaintiff thus also using it, that this constituted a dedication of the five feet to the ten-foot wide alley, thus making it fifteen feet wide, and asks for a permanent injunction to prevent the defendant from erecting a fence upon the eastern line of the ten-foot wide alley.

In support of this contention of dedication, plaintiff has cited Waters vs. Philadelphia, 208 Pa. 189. The facts of that case, however, are altogether different from those in this case. The owner in that case made no use of the four feet space that would indicate that he regarded it as in any way ministering to his special benefit. There was no door upon the Walnut street end of the building and no steps leading to the street, as the entrance was from the 15th street side. The Court decided that even in such a case the dedication of the strip to the public use was a question for the jury. In this case, however, we find that clearly the purpose of this extra space in the alley was for the accommodation of the market house people in conducting their business, and was used in a manner so as to prevent blocking the original ten-feet wide alley. In the case cited by plaintiff's counsel, we have these principles: Any acts of ownership by the owners of the soil repels the presumption of dedication. Where it is obvious that a space has been left open for the accommodation of the owner and not for the public the presumption of dedication does not arise. Dedication is a matter of intention. A mere permissive use by the public of a piece of ground left open by the owner in front of his property, and used by him in his own business and for his own convenience, is not a dedication to the public use and confers no right upon the public as against the owner. See also Weiss vs. So. Bethlehem Boro., 136 Pa. 294; Gowen vs. The Philadelphia Exchange Co., 5 W. & S. 141; Ferdinando vs. Scranton, 190 Pa. 321, 327; Kleinhaus vs. Northampton Traction Co., 60 Pa. Superior Ct. 641, 647. From the evidence in this case it is evident to us that the defendant company never intended to dedicate the five

feet claimed by plaintiff to the ten-foot wide alley and thus make it fifteen feet. The five feet were left open by the defendant company for its own use in connection with its business, and has continued since to be so used by it with merely a permissive use to the public, including this plaintiff.

FINDINGS OF LAW.

1. The use to which the defendant company put the five feet left open along the ten-feet wide alley, does not constitute a dedication of the five feet to public use and thus make it a part of the ten-feet wide alley, thereby increasing it to fifteen feet.

2. The construction by defendant of a fence at the place averred in plaintiff's bill will not be a violation of any right in plaintiff.

for.

3. The plaintiff is not entitled to the injunction prayed

4. The costs of this proceeding shall be paid by the plaintiff.

AND NOW, to wit, January 2, 1917, the Prothonotary is directed to enter a decree nisi in accordance with the foregoing decision, and forthwith to give notice thereof to the parties or their counsel of record, sec. reg.

RUPPERT'S ESTATE.

Contracts-Intention of Parties

Subject-Matter-Construction.

1. Contracts should be construed so as to give effect to the intention of the parties.

2. In ascertaining the intention of the parties to a contract, the negotiations leading to its formation, its subject-matter and the end to be accomplished will be considered.

3. Where R., while serving as housekeeper for S. at a fixed 'salary, received from S. the sum of $700 to purchase a house, under a written agreement which provided that if R. remained in S.'s employ as his housekeeper "during his natural life," the said $700 should belong to R., but that if R. should "for any cause whatsoever" leave the employ of S., the money should be paid back to S. without interest, and R. died before S., while still in his employ, R.'s estate is liable to S. for the sum mentioned in the contract.

In the Orphans' Court of Berks County.

No. 3 December Term, 1916.

Claim of Henry Schofer.

Harvey F. Heinly for Henry Schofer, claimant.
Foster S. Biehl for the Reading Hospital.

D. N. Schaeffer & Son for the accountant.

Opinion by Schaeffer, P. J., January 4, 1917. The decedent died on the 9th day of December, 1915, testate and unmarried. The fund here is insufficient to pay the claims against it, and, therefore, it is unnecessary to set out the provisions of the will.

The account contains the principal proceeds of the personal property and income from realty. Of principal, the balance for distribution is shown to be $573.66; and there is income of $75.13. Included in the principal balance are unconverted household furniture and jewelry, specifically bequeathed by the will, appraised at $66.25. These will be taken out of the balance and impounded in accountant's hands until he has had an opportunity to determine whether or not there is a necessity for converting them. They can be accounted for in a future account. The income from the realty, for purposes of distribution, may be blended with the personalty.

The following admitted claims are preferred, were presented against the fund, and are allowed:

$134.25

Dr. F. G. Runyson, medical services.. 108.00

John F. Lutz, undertaker....

Henry Schofer also presents a claim against this estate for the sum of $700 with interest from December 9th, 1915, based on a written agreement dated March 1st, 1907, a copy of which has been filed with the claim.

It appears that the decedent was the housekeeper of the claimant, and while this relation existed, she purchased a house, No. 617 Locust street, in this city. Henry Schofer, the claimant, paid on account of the purchase money for Ruppert, decedent, the sum of $700. At the time this transaction took place the claimant, who is a widower, was seventy-eight years of age and the decedent, who was a maiden lady, was thirty years of age. When the $700 was paid by the claimant, an agreement was entered into between him and decedent, setting forth the terms and conditions under which he gave the $700 to her for the purchase of the house.

The agreement after reciting that Emma H. Ruppert, the decedent was, at the time, serving as housekeeper for the said. Henry Schofer at a fixed salary agreed upon between them, and that she was about to purchase a two-story brick house, No. 617 Locust street, in the City of Reading; and that Henry Schofer had paid on account of the purchase money the sum of $700, reads as follows:

"NOW KNOW ALL MEN BY THESE PRESENTS, that the said Henry Schofer, for himself, his heirs, executors and administrators, does hereby covenant, promise and agree to and with the said Emma H. Ruppert her heirs and assigns, that if she the said Emma H. Ruppert will remain in the employ of the said Henry Schofer as his housekeeper under the contract existing between them for and during his natural life, then the said $700 shall belong to the said Emma H. Ruppert and the same shall not be paid by her to the said Henry Schofer, his heirs, executors or administrators; but in case the said Emma H. Ruppert shall for any cause whatsoever leave the employ of the said Henry Schofer during his lifetime, as his housekeeper, then in that case she shall pay to the said Henry Schofer, his heirs, executors and administrators, the said sum of $700, without interest, or convey the said house and lot to the said Henry Schofer, his heirs and assigns, upon him paying to the said Emma H. Ruppert, her executors, administrators or assigns, the difference between the purchase price of the said house and lot, which is eighteen hundred and fifty ($1,850) dollars and the $700 so paid as aforesaid."

The construction of this agreement is the question in this cause, and that it is a matter for the Court is conceded. Did the claimant give this money to the decedent, on the condition that if she ceased to be his housekeeper at any time before his death, for any cause whatsoever, not excepting death, it was to be repaid to him by her or her estate? In order to get at the true meaning of the phrase in the agreement which bears on this particular point, "that if she the said Emma H. Ruppert will remain in the employ of the said Henry Schofer as his housekeeper under the contract existing between them for and during his natural life, then the said $700 shall belong" to her, we must consider the relation of the parties, the subject matter of the agreement, and all the provisions of the instrument.

Every contract should be construed so as to give effect to the intention of the parties. In ascertaining that intention, it is proper to consider all the negotiations leading to the formation of the contract, its subject matter, and the end to be accomplished: McMillin vs. Titus, 222 Pa. 500. Every agreement should be interpreted with reference to the circumstances under which the parties contract and in the light of the objects to be accomplished: Callen vs. Hilty, 14 Pa. 286, 288. McKeesport Machine Co., vs. Insurance Co., 173 Pa. 53. Where the terms of the promise admit of more senses than one, the promise is to be performed in that sense in which the promisor apprehended at the time the promisee received it: McMillin vs. Titus, supra. Applying these rules to the present case and considering the relation of the parties and the