original heirs of my estate.' The other half of the rents of the Anderson street property are given for the maintenance of the children of L. J. McIntosh, deceased, son of Elspatius; and 'when the youngest of these children has reached twenty-one years, a general distribution shall be made as follows: To Robert, one-half of the remainder, if living; if dead, without issue, as described above, his share shall revert to my original heirs, viz. Lucretia M., Alexander G., and James T. McIntosh. To the surviving children of Lauchlin J. a sum equal to that of Robert, which shall be divided equally among each. If none survive, it shall revert to my original heirs, the same as the share assigned to Robert.' (5) James T. McIntosh and 'his children' certain real estate at a valuation of $52,056.42, and 'enough personal property to make his share equal to any one of the other three heirs, viz. Lucretia Mott, Alexander G., and the heirs of my son, Elspatius G.' After the execution of this will, Mr. McIntosh made valuable improvements on the Klingensmith property, devoted to the heirs of E. G. McIntosh, and thereupon executed a codicil, by which he directed that the improvement so made should be valued or appraised' at his decease, and 'deducted from the money due the heir or heirs of such share.' The evidence adduced here shows them to have been worth $2,400.00 as of July 24, 1891. Mrs. McIntosh refused to take under the will. The questions submitted for decision are whether or not (1) the first gift to Mrs. Martin was conditioned upon the widow's acceptance under the will; and, if not, (2) to what extent, if any, that gift is a trust fund to secure compensation to those whom the widow's election disappointed. (3) The first gift to Mrs. Martin is independent of the second; and (4) a valid, active trust was created in the share given to the heirs of Elspatius G. McIntosh, deceased. (5) Part of the real estate devised to Alex. G. McIntosh, being in Iowa, where the widow takes one-half absolutely, it is insisted that the valuation placed by the testator on that real estate should be reduced to that extent for the purpose of equalization; and, (6) in the girt to 'James Tulloch and his children,' the word 'children' shall be construed as of purchase or limitation."

"Opinion.

"(1) The two gifts made to Mrs. Martin were manifestly intended to be independent of each other, and cumulative. The testator divided his estates into two parts, and made independent dispositions of them. The gifts to Mrs. Martin thereout differ in their quality. The first is in remainder, and the second in praesenti. The second is directed to be equalized with the shares given to her brothers out of presently available assets; whereas the first was made payable after the death of the widow. 'I give and bequeath to our said daughter, Lucretia Mott Martin,'

said testator, 'certain real estate at a valuation of $46,000, and to this shall be added enough personal property to make her share equal to that of any one of the other three heirs.' It is plain that equalization was intended to be made, not by aid of the personal property bequeathed to Mrs. McIntosh and Mrs. Martin, for Mrs. Martin's interest in that was only in remainder, and would not be available until Mrs. McIntosh's death, but out of the other part of the personal estate which would be presently available.

"(2) It will readily be conceded that the application of the expression 'the above,' upon which the argument for conditional gift in remainder to Mrs. Martin rests, must be ascertained by reference to what follows it in the paragraph in which it is used; for without that the expression would be insensible. To what, then, does the expression refer? In the first place, it refers to one object, whereas there are two 'above,'-an estate for life and an estate in remainder. "The above is intended to be, and is to be taken in lieu or bar of,' which of these? Dower. Taken by whom? No other than the widow is mentioned. It is what is given to her -a life estate, not what was given to Mrs. Martin, a remainder-that was intended to be barred. It is precisely the same as though the testator had said, 'If the widow accepts "the above," it shall be in lieu of dower.' She had no interest in the remainder. There had been an absolute and independent gift of that to Mrs. Martin. Had Mrs. McIntosh died before her husband, there can be no doubt but that Mrs. Martin would have taken the one-third of the personal estate absolutely. Having survived, if she had accepted under the will, Mrs. Martin would have taken the whole on her death, or by agreement between them they could have divided it on the basis of the cash value of their respective estates,-the widow taking the one-third, and Mrs. Martin the other twothirds, absolutely. In any event, Mrs. Martin would have received exactly what testator intended she should have. The suggestion that the relationship of Mrs. Martin, as the only child of the widow, can affect the question of construction, has no merit. That fact might explain the expression of, but cannot create, a condition. Here there was neither an express nor implied condition attached to the gift. It was independent and absolute on its face, and extrinsic evidence is incompetent to show an intention to create such condition. It is clear that Mrs. Martin was intended to be a favored object of testator's bounty. Nothing short of express words or necessary implication would justify the inference that testator intended to coerce his widow into acceptance under his will through her affection for her daughter, for such purpose would have been not only inconsistent with the spirit of the statute which gave her a right of election, but with that fair and humane dealing which he owed her as hus

band. But neither the language used nor the value of the gift justifies such inference. The advantages of refusal were so great that there could have been no temptation even to acceptance. The bequest here is totally unlike that in Carr's Estate, 138 Pa. St. 354, 22 Atl. 18, which was expressly conditioned upon the widow's acceptance under the will. If, then, the gift to Mrs. Martin was absolute, it was accelerated by the widow's refusal to take under the will; and she thereby became entitled to some present estate, but to what? Certainly, as between her and the widow, the latter could no more take the whole of her third out of that portion of the personal property set apart to her by the I will than out of the homestead. She must take, as though no will had been made, out of the bulk of the estate; and the other beneficiaries take the residue as constituting the whole estate, and as though the widow were dead, in the interests contemplated by testator. If the legacies be of equal grade they must abate proportionately. As between Mrs. Martin and her brothers, the refusal of the widow to take under the will presents a question which turns upon the application of the principle that 'where a widow elects not to take under a will, her substituted devises and bequests are a trust in her for the benefit of the disappointed claimants to the amount of their interest therein. A court of equity will sequester the benefit intended for the widow to secure compensation to those whom her election disappoints.' Gallagher's Appeal, 87 Pa. St. 200; Ferguson's Appeal, 138 Pa. St. 208, 20 Atl. 945. Are there substituted devises and bequests here out of which compensation can be made? It is clear that, so far as the personal estate is concerned, there are not. By her election the widow became entitled to a share in her husband's estate as though he had died intestate, and the will operates on the rest as though she were dead. Vance's Estate, 141 Pa. St. 201, 21 Atl. 643. Assuming, then, that her share has been taken out, what remains constitutes the whole personal estate for distribution amongst testator's children and grandchildren as provided by the will; and of this Mrs. Martin is entitled to one-third, and the four children of testator, including Mrs. Martin, are entitled to the other two-thirds, in the proportions specified in the will. The result, so far as the bequest to Mrs. McIntosh for life and Mrs. Martin in remainder is concerned, is that Mrs. McIntosh will get the exact equivalent in cash of her life estate, and Mrs. Martin of her remainder. To illustrate: Suppose this bequest to amount to $30,000, on the principle recognized in Datesman's Appeal, 127 Pa. St. 348, 17 Atl. 1086, 1100, the cash value of the widow's life estate would be one-third, or $10,000; and that of Mrs. Martin, remainder, two-thirds, or $20,000. There are, then, no benefits intended for the widow in suspense. Both she and Mrs. Martin get exactly what

the testator intended they should have, and there can consequently be no fund available for compensation and no disappointed legatees. But the situation in respect to the real estate is different. The effect of the widow's election was to increase the share of Mrs. Martin in the homestead by twothirds of the rental value, and to decrease that of the devisees in the other real estate by one-third, during the widow's life, and thereby to change the proportion in which testator intended they should take. The gain to Mrs. Martin represented the 'benefits intended for the widow,' 'her substituted devise,' and therefore a trust fund to secure compensation to those whom the widow's election disappointed. It is conceded that there are disappointed claimants, but are they entitled to compensation out of this fund? It would seem clear that they are. "The principle is well settled that equity will depart from the literal provisions of a will in order to carry out a superior or preferred intent of the testator which would otherwise fail. But the object is not to produce a distribution which the court may think more equal or equitable, but to approximate as closely as possible to the scheme of the testator, which has failed by reason of intervening rights or circumstances.' It will be conceded that a 'superior or preferred intent' of the testator was that his beneficiaries should take in the proportions prescribed in his will, and that these proportions have been changed by the widow's election. Mrs. Martin has gained what from the face of the will she was not intended to have, and the other devisees have lost. Testator's scheme

has to this extent failed. Mrs. Martin's gain is the widow's 'substituted devise,' and therefore a trust fund, which should be used to secure compensation to those whom the widow's election disappointed, and thus ‘approximate as closely as possible to the scheme of the testator.' With a view to save the expense of a regular proceeding in sequestration, the court suggested that the parties agree upon the cash value of this 'substituted devise,' and, this having been done, the amount is deducted from Mrs. Martin's share in the personal estate.

"(3) It was conceded that the legal title to the share of Elspatius G. McIntosh's heirs was vested by the will in trustees; but it is insisted that in respect of all this share, with possibly the exception of the Anderson property, the trust was dry, and therefore executed. It is very clear that testator created a valid, active trust in the Anderson street property. The gift to the trustees necessarily implied the collection of rents, and therefore the custody of the property, and some discretion in respect to the payment of the net income. In respect to the rest of this share, (less $10,000 cash, given Robert McIntosh,) the creation of an active trust is not so plainly, but is sufficiently, expressed. It is conceded that

the will vested in the trustees the legal title. The scheme of the trust declared gave these trustees a large discretion, and necessarily imposed on them active duties. They were 'empowered,' 'in case of necessity from sickness of any of the heirs' of E. G. McIntosh, deceased, or, 'should any of the children of' L. J. McIntosh, deceased, 'be desirous of a collegiate or classical education,' 'to use the income of this share.' Out of what are these expenses to be paid? The expression 'this share' is the same as that used in the gift to the trustees, and, standing by itself, would of course include the whole 'share' of the heirs of E. G. McIntosh, deceased. But its use here was evidently in a limited sense, for the testator had already specifically set apart the net rents of the Anderson street property,-one-half to Robert McIntosh, and the other half for the support of the children' of L. J. McIntosh, deceased. The provision for defrayal of expenses of sickness and education immediately follows this, and was evidently intended as additional and extraordinary, and to be paid out of the income of the share given to these heirs' of E. G. McIntosh, deceased. On no other theory of construction can the disposition of 'this share' be made effectual. It will thus be seen that the income of the whole of 'this share' is pledged for the defrayal of expenses which may become necessary in case of sickness of any one of the heirs of E. G. McIntosh, deceased, or the education of either of the children of L. J. McIntosh,deceased, until the youngest attains majority. An adequate reason for the creation of this trust is found in the minority of two of the heirs of the cestuis que trustent, either of whom may become entitled to the benefits; and an additional reason is suggested by the evident belief of the testator-whether justified by facts or not is immaterial-that the industry and sobriety of the other needed to be tested by time. The nature of the trust is such that it must continue in respect of the whole of 'this share.' Who will receive the benefit, and how much will be required of the income to meet the necessary expenses of sickness or education, it is impossible to foretell. From the nature of the case there will be inequality. One may receive nothing or the whole. It will thus be seen that each cestui que trust is interested in the continuance of the trust in this share' as a whole. Hinkle's Appeal, 116 Pa. St. 490, 9 Atl. 938. If the trust be valid as to one, it must necessarily be valid as to all. The accumulations, if any, will be simply temporary, and in the interest of judicious management. Hibbs' Estate, 143 Pa. St. 217, 22 Atl. 882. That this was a valid, active trust, then, seems clear. There are sufficient words used, a definite object, and ascertained subjects, and it is not in

consistent with public policy. Marshall's Estate, 147 Pa. St. 77, 23 Atl. 391.

"(4) It was conceded in argument that the gift to James T. McIntosh and his children' would, standing alone, give the latter equal rights in distribution with their father. This is the leading and operative clause, and the word 'children' being of purchase, must be so construed, unless a contrary intention can be gathered from the whole will. That it was used in its primary sense here is strengthened by the fact that in every other instance in which it appears it is undoubtedly used as a word of purchase, while the word 'heirs' is used as a word of limitation. But counsel insist that because this share' is elsewhere referred to as James T. McIntosh's, the word 'children' must be treated as a word of limitation or succession. The implication is not necessary. The leading and operative clause is, as already seen, that to 'James T. McIntosh and his children,' and the natural inference is that James T. McIntosh's name was simply used by way of convenient reference. Similar use was made of the name of Alexander G. McIntosh, and yet no one intimates that he can justly claim a share. Being fathers, their selection as representatives was but natural, and could not be construed to take away benefits which had been expressly given their children."

A. M. Imbrie, for appellant. John D. Shafer and S. B. Donaldson, for appellees.

PER CURIAM. The questions presented by this record have been so fully considered and so satisfactorily disposed of by the learned president of the orphans' court that further discussion of them is unnecessary. We adopt his opinion, and affirm the decree thereon. Decree affirmed, and appeal dismissed, with costs to be paid by appellant.

ty.

Appeal from orphans' court, Allegheny counSettlement of the estate of Lauchlin McIntosh, deceased. From a decree determining the amount due each devisee on a distribution of the estate, Robert G. McIntosh, a devisee, ap. peals. Affirmed.

S. B. Donaldson, for appellant. John D. Shafer and A. M. Imbrie, for appellees.

PER CURIAM. This case was argued with James T. McIntosh's Appeal, 27 Atl. Rep. 1044, (No. 292 of this term,) and for reasons stated in opinion just filed in that case this decree is affirmed on the opinion of the court below, and appeal dismissed, with costs to be paid by appellant.

Appeal from orphans' court, Allegheny county.

Settlement of the estate of Lauchlin McIntosh, deceased. From a decree determining the amount due each devisee on a distribution of the estate, J. S. McIntosh, trustee for the family of Alexander G. McIntosh, devisees, appeals. Affirmed.

S. B. Donaldson, for appellant. John D. Shafer and S. M. Imbrie, for appellees.

PER CURIAM. This case was argued with James T. McIntosh's Appeal, 27 Atl. Rep. 1044, (No. 292 of this term,) and for reasons given in opinion just filed in that case the decree in this case is affirmed, and appeal dismissed, with costs to be paid by the appellant.

(158 Pa. St. 528)

(No. 295.) Nov. 14,

In re MCINTOSH'S ESTATE. Appeal of JOHN S. MCINTOSH. (Supreme Court of Pennsylvania. 1893.) Appeal from orphans' court, Allegheny county.

Settlement of the estate of Lauchlin McIntosh, deceased. From a decree determining the amount due each devisee under decedent's will, J. S. McIntosh, trustee for the minor children of Lauchlin McIntosh, deceased, devisees, appeals. Affirmed.

S. B. Donaldson, for appellants. John D. Shafer, for appellees.

PER CURIAM. This case was argued with James T. McIntosh's Appeal, 27 Atl. Rep. 1044, (No. 292 of this term,) and for reasons given in per curiam opinion just filed in that case, the decree in this case is affirmed and appeal dismissed, with costs to be paid by appellant.

(158 Pa. St. 422)

The court charged as follows:

"The plaintiff in this case seeks to recover damages at your hands for injuries done by the defendant company through the negligence of its agents and employes, as he alleges. The rules of law, as stated by the learned counsel in your hearing, are correct and not disputed. To recover, the plaintiff must satisfy you, by the weight of evidence, that his injuries were occasioned by the neglect or negligence of the defendant's agents, and negligence in these cases is the absence of ordinary care. Both parties are required, under the circumstances of this case, to use reasonable and ordinary care; and 'ordinary care' means just what the words say. It is defined by our courts all over the civilized world in very plain terms, and is this: Just such care as a reasonably careful and prudent man-not a cautious man, not an extraordinarily cautious man, but a reasonably careful and prudent man-would exercise under the circumstances then existing and surrounding him. That is a very simple and very plain definition. It is not the highest care, it is not extraordinary watchfulness, but such reasonable and ordinary care as a man under the circumstances, being reasonably prudent and careful, would exercise and ought to exercise. That is the measure of duty on both sides, on the part of the plaintiff and on the part of the defendant.

"The plaintiff, on his side of the case, presents to you a state of facts which, if you believe to exist, would justify you in finding that the defendant did not exercise ordinary care at all, but was guilty of clear negligence. The theory of the plaintiff (and I give you both sides, beginning with the plaintiff) is that he was driving for Armour & Company, in the butcher business; that he had a load of meat which he had contracted to deliver to a business house on a

TION CO.

(Supreme Court of Pennsylvania. Nov. 13, 1893.) STREET RAILRoads-Negligence-CollisioNS.

In an action against a street-railroad company for personal injuries, plaintiff, the driver of a delivery wagon, testified that he drove his wagon close to the curb because he knew the street was so narrow as to render it difficult for cars to pass teams; that after making the delivery he noticed an approaching car, and went to the rear of the wagon to shut up the tailboard; that he signaled the motoneer to stop, and started to unhitch the horse to get him out of the way of the car; and that, while unhitching, the car struck the end of the wagon, frightening the horse, which turned around and injured plaintiff. Held sufficient evidence of negligence on defendant's part to warrant the submission of the case to the jury.

Appeal from court of common pleas, Allegheny county; Collier, Judge.

Trespass by Edmund Kestner against the Pittsburgh & Birmingham Traction Company for personal injuries. There was a verdict in plaintiff's favor for $656, and, from a judgment thereon, defendant appeals. Affirmed.

horse, and, when he got to where he was to deliver the meat, he drove the wagon close up to the curb, took out his hitching strap with the weight attached, and placed it upon the pavement, went to the tail end of his wagon, took the meat out, and made the delivery. The reason he alleges he drove so close to the curb was that he knew the street was narrow, and that it was difficult to pass. He alleges there was not room enough for both the wagon and the car. One of his witnesses says that prior to this time the cars could not pass an ordinary wagon like this without hitting it, probably from the fact that the steps were too far out, the place too narrow, or the cars too wide; but since that time he says they have been able to pass. He says he made the fastening and drove up close to the curb for that reason. He then alleges that after he made the delivery he came out and saw the car coming; that it was about to cross, or had crossed, the railroad track; that he went to the rear of his wagon, and either shut up

the tailboard or did something, then went to the head of his horse to unhitch him to get out of the way of the car. That was his duty. He was bound to get out of the way, and let the car go by; and if the motorman saw it, and knew of this being a dangerous place to pass, that he was likely to hit the wagon, he was bound to wait until the wagon was out of the way. Mr. Kestner alleges that he went forward, was about to unhitch, and before he unhitched he turned part way around, and made a sign to the motorman on the car. He says he then went to unhitch, and, while unhitching, the motorman continued his car, struck the end of the wagon or the wheel, and the motion frightened the horse, threw his horse around and injured him, and that he was confined to the house without being able to do much for seven weeks, and is now injured. Well, if that state of facts is found by you, it would justify you in saying, under the circumstances, that the agents of the defendant company were guilty of negligence; did not act as an ordinarily careful and prudent man would act, and ought to have acted, under the circumstances. That is the plaintiff's theory, and he has given evidence tending to sustain that.

"The defendant's testimony denies these facts, and their evidence tends to show that. Their theory is that when they came near this place they saw the man and the wagon; that the horse seemed to be fractious; that they checked up, went along slowly, quieted down and started again, when the horse from fright, either from a locomotive or from some other cause, frightened again, and in his fright moved the wagon,-according to the evidence there was very little room there either way; that is very evident,-moved the wagon and the hind wheel against the car that was moving under such circumstances, and that was the way the accident happened. If that is the way the accident happened, then there could be no recovery, because the motorman could do no more-no one could do any more-than that; and, the duty of ordinary care being upon both sides, as a matter of course the defendant could not be held liable. Or, if the horse was frightened by the car, either the electric car or whatever it was, or by any other car or any other cause, the plaintiff cannot recover, because he takes that chance; we all take it when we go upon the street. It must be by the direct negligence of the defendant.

"Now, I think I have reasonably presented both sides of the case to you, as claimed by the defendant and the plaintiff, as to the facts. In addition to that, the plaintiff himself must be without negligence; he must exercise ordinary care. As I say, if you find the facts as alleged by the plaintiff by the weight of the evidence, fixing negligence on the part of the defendant, he would be entitled to recover. The defendant sets up, in addition to denying the facts alleged by the

plaintiff, three distinct grounds of defense, and, if you are satisfied of them, it would be your duty to find for the defendant. If you are not satisfied of any of them, then it is your duty, if you believe the facts as set up by the plaintiff, to find for him. In the first place, the defendant says its agents were exercising ordinary care; they were doing all that any prudent and reasonable men could do. You will remember that this was a dangerous place; that there is a steam-railroad crossing very close to this; that the conductor was out, had watched to get across, and they then crossed and slowed up; that they had many times gone past there, and passed a wagon with four horses safely at that place, and with that in view, and seeing the wagon, they went along very carefully and stopped; that knowing that fact, and having gone by safely, and there being no change in the location, the motorman judged he could go by. If that is the fact, and you find that, then, even if an accident did happen, the defendant could not be held liable, because that is all the care you or anybody else could take under such circumstances. Having passed before, and knowing or believing they could pass again, and exercising that belief reasonably and going slowly, and making a miscalculation, it was a mistake of judgment, and the plaintiff could not recover. This is one of the grounds of defense. You will remember this man was not struck by the car; it is not a case where the car ran against him; this is a case where the car struck the wagon, and from some cause or other the horse became unmanageable, and jumped and injured the plaintiff. The main ground of defense is that the horse became frightened, either by the steam cars or by the other car, and caused the injury; that is, by fright, not by anything done by the defendant's employes. If that is the case, if the horse became frightened, as I said before, from either of these causes, that is a defense. Then the third ground of defense, if believed, is a very clear one, if it is found from the evidence by you to be true. I will say, as to these witnesses, one is just as much interested as the other, as far as interest is concerned. If you want to do justice, you must remember that one is just as much interested as the other. On one side you have the plaintiff, who from some cause or another has received an injury, and of course his interest is to recover. On the other hand you have the officers of the company, and their interest is with their side. The interest is equal on both sides. The defendant alleges as the other ground of defense-and as I say to you, if that is made out, it is a very clear one-that they were using not only the ordinary care, but extraordinary care; that they knew they had room to go by if they were careful, because they allege they had gone by a fourhorse team at that very place by going carefully; that, notwithstanding that, they slowed up and stopped, looked out, saw the hors