From the judgment defendant brings error. ant in error. Charles Hunsicker, for defend PER CURIAM. This case is affirmed, on the opinion of the court below. In re ROAD IN CHELTENHAM COUNTY. (Supreme Court of Pennsylvania. March 19, 1888.) HIGHWAYS-PETITION FOR REVIEW-TIME OF FILING. Where the report of viewers of a road, proposed to be laid out, was filed in March, and there was another term of the court held in June, a petition for review, filed in November, comes too late. Certiorari to court of quarter sessions, Montgomery county; HARMAN YERKES, President Judge. This was a petition of T. H. Asbury and others for the laying out a road in Cheltenham township. The viewers met, after notice to the land-owners, including one J. S. Spencer. Mr. Spencer was sick, and his attorney presented an affidavit of the fact and asked for a continuance, which was not granted. In March, 1887, the viewers reported the new road as "beginning at a stake in the center of the Mill road, where the lands of Richard J. Dobbins and Edward M. Davis, Jr., meet; thence through lands of R. J. Dobbins and E. M. Davis, Jr., south thirty-one degrees, etc. A petition was presented by counsel, on behalf of the heirs of Mr. Spencer, asking leave to file a petition for a review in November, none having been filed at the June term within the time limited by the act of assembly, Mr. Spencer having been at that time too ill to be communicated with, and having soon after died. The court refused the prayer of the petition. The heirs of Mr. Spencer then took this writ. G. R. Fox & Son, for the estate of Spencer, deceased. Montgomery Evans, for petitioners. PER CURIAM. We find nothing in this case, apparent on the record, that requires reversal. The order of the court of quarter sessions is affirmed. In re INCORPORATION OF PENNSBURGH. (Supreme Court of Pennsylvania. March 19, 1888.) MUNICIPAL CORPORATIONS-BOROUGHS-INCORPORATION-REPORT OF GRAND JURY. Where the report of a grand jury, on a petition for incorporation of a borough, referred to "the annexed petition," and it appeared that the petition was enfolded with, but not attached to, the report, it was not error for the court to order the clerk to attach it. Certiorari to court of quarter sessions, Montgomery county; A. L. SWARTZ, Judge. A petition of the majority of the freeholders of the village of Pennsburgh, was presented to the court, setting forth the necessary facts, and asking to be incorporated into a borough. To this exceptions were filed. The court laid the matter before the grand jury, who returned a report, not attached to the application, but enfolded with it. The grand jury's report was as follows: "That after a full investigation of the case presented by the annexed petition to incorporate the said village of Pennsburgh into a borough," etc. Exceptions were filed to this report, on the ground that the report did not show that the grand jury had acted on the petition, nor was any petition annexed, and that therefore there had been no action by the grand jury. The court ordered the clerk to annex the certificate to the application. The exceptions were dismissed, and from the decree incorporating the village of Pennsburgi into a borough in conformity with a petition previously filed, this writ was taken. Chas. Hunsicker, for exceptants. W. E. Dannehower, for petitioners. PER CURIAM. As the annexing of the certificate of the grand jury to the petition was a merely mechanical duty, the court properly ordered its clerk to perform that act. Order affirmed. In re BOARDMAN et al. (Supreme Court of Rhode Island. February 11, 1888.) WILLS-CONSTRUCTION-PROPERTY APPLIED TO PAYMENT OF DEBTS. A testator directed that his property should be sold to pay his debts, except certain stock, the income from which he charged with certain bequests, to take effect immediately upon his death. He also provided that the stock should be subject to his debts in case there were not sufficient assets from other sources, but did not state whether the principal or income should be so used. At the time of the execution of the will and of his death, the stock was held in trust as security for, and the income applied to, the payment of his debts. Held that, the other property not being sufficient, the income of the stock might be applied to paying the debts, instead of selling a portion thereof for that purpose. Petition of Halsey J. Boardman et ul. for an opinion of the court. This is a case stated for the opinion of the court under Pub. St. R. I. c. 192, § 23. The last will of George F. Wilson, late of East Providence, was presented for probate before the probate court of that town, and finally allowed with certain modifications agreed to by the legatees under Pub. Laws R. I. cap. 204. §§ 1, 4, of April 19, 1882. The modifications agreed to were that the daughters should have the income of 100 shares each of the stock of the Rumford Chemical Works, in addition to the amount provided in the will, but with the proviso that none of this income should be available until the bequests to Brown University and Dartmouth College should be paid. The following are the material portions of the will: "Know all men by these presents, that I, George Francis Wilson, of East Providence, in the state of Rhode Island, being of sound mind and memory, do hereby make and publish my last will and testament in manner and form following, namely: Item 1. I direct my executors hereinafter named, as soon as practicable after my decease, to pay all my lawful debts, including funeral expenses, and to erect a suitable monument to mark my last resting place." "Item 11. I give and bequeath to my executors hereinafter named the sum of fifteen hundred dollars, or so much thereof as my said executors shall see fit to employ for that purpose, in trust for the erection of a suitable monument to mark the last resting place of my grandfather, John Wilson, and his wife, my grandmother, and my aunt Lucretia Wilson, in the burying ground in East Providence aforesaid, formerly a part of Seekonk, which lot is marked by granite stones at the corners." “Item 13. I give and bequeath to my sister Mrs. Hannah Holbrook the sum of one thousand dollars per annum during her life." "Item 17. I will and direct that the foregoing bequests shall take effect immediately upon my decease and the articles specifically devised to be delivered over at once to the persons to whom they are so devised, respectively, and the sums of money, except the annuities, be paid by my executors as soon as practicable after my decease, and the annuities specified herein be paid promptly and without any abatement or discount on the days they from time to time become due respectively. Item 18. I will and direct that my household effects not herein before disposed of, including my horses, carriages, wagons, phaetons, sleighs, robes, saddles, and all personal property appurtenant to my horses and stables, shall be sold by my executors at such place, in such manner, and at such time, not exceeding two years after my decease, as shall seem to my executors most advantageous and desirable, and my said ex ecutors shall apply the proceeds of such sale or sales, together with all moneys on hand or in bank at the time of my decease, so far as may be necessary for the purpose, to the payment of any debts by me owing at the time of my decease and of the legacies herein before contained, the excess of such moneys or proceeds, if any, after such payments, to be added to and constitute part of the estate hereinafter disposed of. Item 19. I give and devise all the rest and residue of my property and estate of every nature and kind to Halsey J. Boardman, of Boston, in the state of Massachusetts, and Ellery H. Wilson, of said East Providence, and in the event of a vacancy, occasioned either by death or otherwise, I nominate and appoint my son George F. Wilson, Jr., as successor or substitute to fill such vacancy. In special trust and confidence, nevertheless, that the said Boardman and Wilson, as trustees, will use and apply the same to the best advantage for carrying out and accomplishing the objects set forth in this my last will and testament; that is to say, that the said trustees shall sell at such time and in such manner as they deem most advantageous all real estate to which I hold title, and all stocks or interests in any and all corporations, companies, or partnerships in which I have any stock or interest of any kind, except my interest or stock in the Rumford Chemical Works, which sales and all necessary and legal transfers and conveyances of any and all property so sold the said trustees are hereby authorized and empowered to make, it being, however, my will and direction that the interest and rights of said trustees, as aforesaid, shall be subordinate to the payment of all my debts, the legacies herein provided for, and the annuities given for the period occupied in the administration of my estate by said executors. Item 20. At the expiration whereof I will and direct my said trustees to continue the payment to each of my daughters, Clara Frances, Mary Augusta, and Alice Louise, the income accruing from fifty shares of stock of said Rumford Chemical Works during their respective natural lives, which income I hereby give and bequeath to them severally. Item 21. After the payments of the foregoing legacies, bequests, and annuities, and the payment annually to each of my said sons, Ellery H. and George F., Jr., the sum of five thousand dollars, which I direct to be paid to them until the legacies hereinafter provided for are satisfied, I direct my said trustees to divide the dividends accruing upon my said stock in the Rumford Chemical Works, one-half of said dividends to be held by said Ellery H. Wilson in trust until the aggregate reaches the sum of one hundred thousand dollars, ($100,000,) when the same shall be paid over to the corporation of Brown University, of Providence, in the state of Rhode Island aforesaid, for the purpose of endowing a professorship or erecting a building for use in connection with said university, as to my said trustees shall seem most desirable, the same to be known and called the Wilson Professorship' or the Wilson Hall.' And the other half of said dividends shall be held by said Halsey J. Boardman in trust until the aggregate shall reach the sum of fifty thousand dollars, ($50,000,) when the same shall be paid over by him to the corporation of Dartmouth College, of Hanover, in the state of New Hampshire, for the like purposes, with like discretion to my said trustees and subject to the like provision as to the connection of my name therewith. And it is my wish that in the event of a building being decided upon in either or both of the two last-named legacies, by my said trustees in the application thereof, that in the erection thereof there shall be built into said building over its principal entrance a block of Cumberland granite bearing in plain letters the word Wilson.' Item 22. After the payment of the foregoing legacies, bequests, and annuities and all the expenses of said executorship and trusteeships, including a suitable compensation to said executors and trustees, I direct my said trustees to pay over annually, in equal proportions, to my said sons, or, in the event of the death of either, to the survivor and the heirs of the deceased by right of representation, the balance of the income from said stock; and upon the death of the survivor, said trustees shall divide said stock into as many equal parts as may be necessary and convey one part to each of my said daughters then living, and one to the children of each of my deceased children by right of representation or to their lawful guardians in the event of their minority. And I hereby constitute and appoint Halsey J. Boardman, of Boston aforesaid, and the said Ellery H. Wilson, to be the executors hereof, and I direct that they shall not be required to furnish sureties upon their official bonds, hereby revoking all former wills made by me, and ratifying and affirming this and none other to be my last will and testament." Thomas H. Russell, James M. Ripley, and John F. Lonsdale, for petition ers. DURFEE, C. J. The case stated shows that the testator, George F. Wilson, died January 19, 1883, leaving a will, which was admitted to probate after modification under the statute. By compromise between the parties in interest, Halsey J, Boardman, of Boston, and Ellery H. Wilson, a son of the testator, were appointed executors by the will, and have accepted the appointment. The will bears date of January 12, 1883, seven days before the testator died. It contains 22 items. The first item directs the executors, as soon as practicable, to pay the debts and funeral expenses, and to erect a monument to the testator. Then follow items bequeathing specific chattels to different persons, giving two legacies of $5.000 each and one of $1,000, making $11,000, giving annuities for life of $3,500 to one person and $1,000 to another, and appropriating the sum of $1,500 for the erecting of a monument to the testator's grandparents and aunt. The seventeenth item directs that the said bequest shall take effect immediately; that the articles specifically bequeathed shall be delivered immediately; that the pecuniary legacies shall be paid as soon as practicable, and the annuities shall be promptly paid as they become due. The eighteenth item directs the sale of the testator's household effects not bequeathed, together with his horses and carriages and all personal property appurtenant to his horses and stables, by his executors within two years, and the application of the proceeds, together with all moneys on hand or in bank at the testator's decease, to the payment of the debts and legacies before mentioned, the excess, if any, to be added to the trust-estate provided for and disposed of in the remaining items of the will. The case also shows that for some years before his death the testator was pecuniarily embarrassed, and that on September 14, 1880, being largely indebted to the Rumford Chemical Works, and desiring further advances from it, he transferred all his stock amounting to 1,248 shares in said works, to trustees, as security for said indebtedness, and for any further advances made by the works to him or to Newton D. Arnold, trustee, under another deed of the same date, for the settlement of his debts. By virtue of said transfer and deed the testator conveyed nearly all his property to trustees, who, at the time of his death, held it under said transfer and deed subject to the trust therein created. The testator was still largely indebted to the Rumford Chemical Works at the time of his death, and the dividends accruing on his 1,249 shares of stock therein continued to be received and applied under said transfer and deed up to and including dividends payable April 30, 1883. On September 15, 1883, said trustees transferred said 1,248 shares to Halsey J. Boardman and Ellery H. Wilson, as trustees under the will, and said Arnold conveyed to them the remainder of the trust-estate in his hands, and paid over to them, as trustees and executors, the sum of — dollars, being the residue of dividends accruing after the testator's death, after paying the remaining indebtedness to said works. The case further shows that the entire estate left by the testator, exclusive of his 1,248 shares of Rumford Chemical Works' stock, was insufficient to pay simply his debts, but that, including those shares, it was sufficient to pay the debts and satisfy all the provisions of the will. The first question put, on the case stated, is whether it was the duty of the executors and trustees to apply at once all the dividends and income of the 1,248 shares which accrued or became payable after the testator's decease, less the income of 150 shares payable to his daughters, towards the payment of the legacies to Brown University and Dartmouth College. The question is raised by the daughters, who are interested, to have the legacies paid as soon as possible, since the sooner those legacies are paid the sooner they will become entitled to the dividends on the additional shares under the compromise. The question, however, is not, so far as we see, affected by the compromise, and should be decided precisely as it would have been decided for the colleges if no compromise had been made. The contention for the daughters is that it is or was the duty of the executors to sell all the real and personal estate not specifically bequeathed, except the 1,248 shares, and then, if the proceeds are insufficient, to sell so many of said shares as are required to make up the deticiency, in order to carry out the following course of administration, to-wit: (1) To pay the costs and charges of administration; (2) to pay the expenses of the last sickness, funeral, and monument; (3) to pay all lawful debts; (4) to distribute the articles specifically bequeathed, and pay the pecuniary legacies; (5) to pay not over $1,500 for monument to the testator's grandparents; (6) to provide for and pay the amounts of $3,500 and $1,000; and (7) to turn over the residue to the trustees. Such a course of administration is proper if it best comports with the provision of the will, otherwise not. There is no stereotyped rule for administrating testate estates. Every such estate should be so administered, if possible, consistently with the law, as to carry out the purposes of the testator, as those purposes appear from the will, interpreted as a whole in the light of the circumstances in which it was made. The same persons are executors of the will and trustees under it, and it seems to us that its obscurity arises in part from the fact that the draughtsman of the will has not always observed the distinction between their capacities, but has sometimes confused and intermixed them, so that it is impossible to discern clearly when the functions of the executors were intended to end and those of the trustees to begin. The will nowhere empowers the executors, as such, to sell the real estate, but empowers and directs the trustees to sell it for the accomplishment of the objects of the will, so that, even for the payment of debts, the executors could only sell it under the will as trustees. It is the trustees also who are empowered and directed to sell "all stocks or interest in any and all corporations, companies, or partnerships," except the Rumford Chemical Works, not simply for the purposes of the special trust, but "for carrying out and accomplishing the objects in this my last will," though these "stocks or interests" are plainly personal assets, and the executors, as such, would ordinarily be expected to administer them for all purposes except those of the special residuary trust. At this point it seems to have occurred to the testator, or his draughtsman, that there might be some confusion, and the testator adds that it his will that the interests and rights of the trustees shall be subordinate to the payment of debts and legacies and the annuities "for the period occupied in the administration of my estate by said executors," manifestly implying that, at least after said "period," the annuities, if paid at all, were to b paid by the trustees. It seems clear to us, therefore, that there is a looseness and lack of order in the structure of the will which should be constantly taken into the account in construing its provisions. The counsel for the daughters does not include the sums of $5,000 which are payable to each of the sons annually under the twenty-first item of the will, among the sums which are to be paid by the executors according to his final scheme of administration, stated above, but claim that the trustees, after paying the income of 50 shares to each daughter, are to pay said annual sums, while the college legacies are accumulating, either from the principal or the income of the stock. We have just seen, too, that the closing sentence of the v.13A.no.1-7 |