[3] The applicable rules of law have been stated recently by this court in Tetlow's Estate (not yet [officially] reported) 112 Atl. 758, in an opinion by the Chief Justice. The reason for the rule is there stated and well founded. To modify it would, through grievances, fanciful or real, cause 50 per cent. of the wills written to be made the subject of judicial contest, and ofttimes the fruitful subject of perjured testimony. There is scarcely a will that satisfies everybody. It is better to adhere to the rule laid down by this court in the opinion of the Chief Justice, which, concretely expressed, is that there must be an abuse of discretion by the hearing judge who sits as a chancellor when an issue is refused, before this court will reverse. invited, unannounced, as he was entertaining | will of Gen. Doster, although he died worth a guest in his home. To clearly understand nearly a million. the case it is necessary to read all of the evidence. We have done so. To review it here would serve no useful purpose. The court below was clearly right when it found that, on the 25th of July, 1918 (when decedent wrote his will), he had a sound, disposing mind, memory, and understanding, and the will admitted to probate was the last will and testament of decedent. We may observe contestant's theory that the references by Gen. Doster should be taken in a literal sense rather than in a broad way as the court below construed it; that is, relating solely to unfilial conduct. The action of the testator may be viewed by some as severe, notwithstanding all the events of his daughter's life. But he was known to have an arbitrary manner; a short, curt, military way of speaking; given at times to anger and bitter recollections. But we did not write the will of Gen. Doster, nor can we, from this record, rewrite it. If his treatment of his daughter is to be considered cruel, the person who must answer for it is the general. For, out of his large circle of acquaintances in that community, not one of his business or professional associates was called to testify to want of testamentary capacity. Of course, we are not unmindful of the fact that testator took his daughter, then a mere child of 12, from her mother, sent her to Europe to be educated, visiting her but twice during these years, and leaving her in this formative period of life among strangers to receive the substitute of a mother's care. That she acquired certain habits under these conditions is not surprising. Nor are we impressed with the idea that there was lack of filial devotion and respect, as urged by appellee. It is not astonishing that, when she came home and found her father married to her school chum, many, many years his junior, she left to join her mother; and, of course, she could not be criticized for the conduct of her brother in marrying his father's second wife. She resented her father's remarriage and so expressed herself. If their relations during later years were not as pleasant as he would have liked it is not clear she was entirely to blame; her early education and environment must be taken into consideration. If the daughter drank occasionally during her married life, it was one of the habits she says she learned in Europe; and if her life was wrecked, and as a result she came to her father, under the circumstances as detailed in the evidence, when we calmly view the entire scene, while it was unfortunate, she was not altogether responsible for it. But these circumstances, under the law as it has been construed by this court and held more stringently in our later cases, could not operate to discard the The decree of the court below is affirmed, at the cost of appellant. GAVIN v. PHILADELPHIA RAPID (Supreme Court of Pennsylvania. May 26, 1. Street railroads 85(1) — Relative rights of street railways and public stated. of a street railway company on a public highThe dominant right to the use of the tracks way is in the company, and that right must be conceded and deferred to by all the public who have the right to cross the tracks, and when about to cross they must use ordinary prudence to ascertain whether the owner of the tracks is about to use them. 2. Street railroads 85(6)-Pedestrians not restricted to street crossings. Vehicles and pedestrians at crossings must be highly vigilant to observe approaching danger, but a pedestrian is not restricted to the use of established street crossings when attempting to pass from one side of the street to the other. 3. Street railroads 98 (6)-Care required of pedestrian crossing street. A pedestrian cannot be held negligent by the court as a matter of law when he attempts to cross a street between the regular crossings, but in exercising this right he must have due regard to the conditions of the traffic before he enters on the cartway, but if he deliberately attempts to cross the street when vehicles are rapidly approaching close by, and injury results, ordinarily, he will be chargeable with such carelessness as to prevent recovery of damages, but, having observed the traffic, and it being far enough away that a pedestrian using due care would deem it safe to cross in front of the approaching traffic, he is under no fixed duty to look back, though the circumstances may be such that, in the exercise of due care, it (113 A.) would become his duty to so look, and it would 264 Pa. 98, 100, 107 Atl. 658; Watts v. Borbe negligence for him to disregard it. 4. Street railroads 117(7) Speed of 20 miles not negligence as matter of law. It cannot be said as a matter of law that a street railway was negligent in operating a car 20 miles an hour between established crossings on a city street. 5. Street railroads 93 (4) - Motorman may assume pedestrian will avoid danger. Motorman on street car is not expected to anticipate that a pedestrian crossing the street between crossings will suddenly place himself on the track, and has a right to believe that pedestrian will recognize superior right of ough of Plymouth, 255 Pa. 185, 188, 99 Atl. 470, 3 A. L. R. 1110. A pedestrian cannot be held negligent by the court, as matter of law, when he attempts to cross a street between the regular crossings, but in exercising this right he must have due regard to the conditions of the traffic before he enters on the cartway. If he deliberately attempts to cross the street when vehicles are rapidly approaching close by, and injury results, ordinarily he will be chargeable with such carelessness as to prevent recovery of damages; but, having observed the traffic, and it being far enough away that a pedestrian using due care, would deem it safe to cross in front of the approaching traffic, he is under no fixed duty to look back-though the circumstances may be such that, in the exercise of due care, it would become his duty to so look, and it would be negligence for him to disregard it. Anderson v. Wood, supra. The latter part of the rule certainArgued before FRAZER, WALLING, ly applies to a case of this character. A peSIMPSON, KEPHART, and SCHAFFER, destrian, in crossing the tracks of a street travel in the car. Appeal from Court of Common Pleas, Philadelphia County; Howard A. Davis, Judge. Action by Elizabeth Gavin against the Philadelphia Rapid Transit Company. Judgment for defendant, and plaintiff appeals. Affirmed. JJ. M. T. McManus, of Philadelphia, for appellant. Wm. M. Stewart, Jr., of Philadelphia, for appellee. KEPHART, J. Joseph Gavin was killed by a street car on Market street, between Sixty-Second and Sixty-Third streets, at a place where there was no public crossing. There was no evidence of anything to obstruct the view of the approaching car for some distance. No negligent act of the company appeared other than the alleged unlawful speed of the car. The accident occurred between cross streets at 8 o'clock in the evening. [1-3] The relative rights of the public and street railway companies as to the use of public highways have been frequently expressed. "The dominant right to the use of the tracks of a street railway company on a public highway is in the company; and that right must be conceded and deferred to by all the public who have the right to cross the tracks. When about to cross, they must use ordinary prudence to ascertain whether the owner of the tracks is about to use them." McCracken v. Consolidated Traction Co., 201 Pa. 378, 50 Atl. 830, 88 Am. St. Rep. 814; Winter v. Mahoning & Shenango Railway & Light Co., 61 Pa. Super. railway which has the undoubted right to use [4, 5] Regarding the place and circum- though in full view of the motorman, there was nothing in his conduct to indicate he would not yield the superior right of passage to the street car. Defendant was not bound to anticipate decedent would negligently attempt to cross in the path of the car. These carriers are fixed to a certain line of travel, and the exigencies of public convenience demand they make such time as will meet this requirement; but, in so doing, they must be duly observant of objects which appear in Vehicles and pedestrians at crossings must the path of travel a sufficient length of time be highly vigilant to observe approaching to permit them to put the car under condanger, but a pedestrian is not restricted to trol. However, they are not expected to anthe use of established street crossings when ticipate the unexpected acts of persons not attempting to pass from one side of the in the path of travel suddenly placing themstreet to the other. "He may cross at what- selves there. The record shows no negligent ever point he elects." Anderson v. Wood, act of defendant; nor does it present the Ct. 440, 441. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes case of a person using ordinary care in crossing the track of a street railway between intersecting streets. Judgment affirmed. MANDEL v. BRON. (Supreme Court of Pennsylvania. May 26, 1921.) 1. Husband and wife 6(3)-Trust in personalty may be enforced, though the creator intended thereby to conceal the property from his wife. Abraham Wernick, of Philadelphia, for appellant. Raymond A. White, of Philadelphia, for appellee. WALLING, J. In the fall of 1919 the plaintiff, Hyman Mandel, became the owner of a $2,000 mortgage upon real estate of Harry L. Tiefenrun, to whose mother plaintiff had been recently married. On November 5th of that year Mandel assigned the mortgage of record to the defendant, his daughter, under an express parol agreement to reassign the same to him at any time upon demand, which she later refused to do; hence this bill in equity praying for a decree ordering a reWhere plaintiff at the time he assigned a assignment of the mortgage. The assignment mortgage to his daughter under an agreement recites a consideration of $2,000; in fact none that she should reassign on demand thus creat- was paid. Two days after the assignment ing a trust was having difficulties with his wife, was left for record plaintiff handed the but it did not appear that plaintiff was indebt-recorder's receipt therefor to defendant, with ed so that the assignment would injure creditors, plaintiff may compel reassignment of the remark tending to show he was making property, despite the contention that the trust her a gift. However, the real transaction was to conceal the property from his wife, for a was an assignment in trust, and not a gift. man may dispose of personal property absolute- As to that the chancellor found, inter alia: ly even by way of gift, knowing that it will defeat the statutory rights of his wife, and hence the transaction was not fraudulent as to the wife. "That several days prior to the 5th day of November, 1919, it was orally agreed by and between plaintiff and Jennie Bron, his daughter, in the presence of Charles Bentz, that the said mortgage should be assigned to his daughter, Jennie Bron, as trustee, and that the said Jennie Bron would reassign the said mortgage to the plaintiff upon demand; that several days prior to the 5th day of November, 1919, the said Jennie Bron, in the presence of Charles Bentz, orally promised to hold the said mortgage for the plaintiff and that she would reassign the said mortgage to the plaintiff at any time upon demand; that the said Jennie Bron, for the assignment of the said mortgage menthe defendant, paid absolutely no consideration tioned aforesaid, and that the said mortgage. was assigned solely in pursuance of the oral agreement made by and between plaintiff and tations and promise made by the said Jennie defendant, and in reliance upon the represen Bron at the time that she would hold the said A man's disposition of his personal property with intention to defeat his wife's statu-mortgage as trustee for the plaintiff and would at any time reassign the said mortgage to him, tory rights is valid. plaintiff, upon demand" but dismissed plaintiff's bill on the ground that the assignment was for the unlawful purpose of concealing his assets from his wife or other creditors, from which decree plaintiff brought this appeal. [1-5] The relief prayed for should have been granted. There is no averment or proof that Mandel was indebted to his wife or to any other person in any sum whatever, or that he assigned the mortgage to conceal it from present or prospective creditors. True, plaintiff was temporarily separated from his wife, because of some difficulty, and desired to place the mortgage in the name of one of his children until he settled with the wife, when he would have it reassigned. This settlement was soon made, and Mandel (113 A.) returned to his wife, but defendant refused to Jamination and inspection, at any reasonable reassign the mortgage and claimed it as a time, on demand of a duly appointed representagift. The finding that it was a trust is tive of the State Highway Department, it was abundantly supported by the evidence, and, not error to issue a peremptory writ in the first being a trust for plaintiff's use, it could not instance upon petition of the State Highway Department by the State Highway Commisbe a gift to defendant. Mandel's transfer of the mortgage to his daughter, whether sioner, attached to a suggestion of the district attorney of the county, commanding certain in trust for his own use or as a gift to her, township road supervisors to produce all ofwas not fraudulent as to his wife. "During ficial accounts and records in their possession his life a man may dispose of his personal for examination and inspection by certain repestate by voluntary gift or otherwise as he resentatives of the Highway Department. pleases, and it is not a fraud upon the rights 2. Mandamus 147 - District attorney proper party to ask for the writ to compel production of official records by road supervisors. The district attorney was the proper relator to bring mandamus proceedings to compel road supervisors to produce official records and accounts in their possession to representatives of the State Highway Department for inspection. Appeal from Court of Common Pleas, Fayette County; Edmund H. Reppert, Judge. Mandamus by the Commonwealth of Pennsylvania, on the relation of William A. Miller, District Attorney of Fayette County, for use of the State Highway Department, of Pennsylvania, against D. Ferd Swaney and others, Road Supervisors of Georges Township to compel them to produce official accounts and records in their possession for ex of his widow or children." Benkhart v. Commonwealth Trust Co., 269 Pa. 254, 112 Atl. 62; Lines v. Lines, 142 Pa. 149, 21 Atl. 809, 24 Am. St. Rep. 487; Pringle v. Pringle, 59 Pa. 281. A man may create a trust of his personal property for his own use, valid as to all except creditors. Dickerson's Appeal, 115 Pa. 198, 8 Atl. 64, 2 Am. St. Rep. 547. He may dispose of such property knowing the result will be to deprive his widow of her statutory interest therein, and the law gives validity to his act. Windolph v. Girard Trust Co., 245 Pa. 349, 91 Atl. 634. Moreover, a widow is entitled to share in trust property of which her husband was the beneficial owner, so plaintiff's wife was not harmed by the trust. The only possible injury she could suffer in the matter would be by sustaining defendant's claim to the mortgage as her own, and there is nothing in the record call-amination and inspection by representatives ing for such a result. Plaintiff did no act to prevent him from invoking the aid of equity to compel a reassignment of his mortgage in accordance with the trust agreement. The decree is reversed, the bill is reinstated, and the record is remitted, with directions to the court below to enter a final decree ordering a reassignment of the mortgage to appellant as prayed for, the costs here and in the trial court to be paid by the appellee. of the State Highway Department. Peremp tory writ issued, and the Supervisors appeal. Affirmed. Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SADLER, and SCHAFFER, JJ. E. C. Higbee and H. S. Dumbauld, both of Uniontown, for appellants. A. E. Jones, of Uniontown, for appellee. PER CURIAM. The mandamus statute of June 8, 1893 (P. L. 346, § 2; Pa. St. 1920, § 14508), provides that- "If the right to require the performance of COMMONWEALTH ex rel. MILLER, Dist. the act [sought to be coerced] is clear, and it is apparent that no valid excuse can be given for not performing it, a peremptory mandamus may be awarded in the first instance and directed to issue forthwith." Section 233 of the General Township Act of July 14, 1917 (P. L. 840, 865; Pa. St. 1920, § 6869), requires township supervisors to keep books and records necessary in the performance of their duties, and to deliver "such books, papers, and accounts to their succe sors." Section 194 of the same act (P. L. SC2; Pa. St. 1920, § 6856) provides: Under the mandamus statute of 1893 (P. L. 346, § 2; Pa. St. 1920, § 14508), providing that, if the right to require the performance of the act sought to be coerced is clear, and it is apparent that no valid excuse can be given for not performing it, a peremptory mandamus may be awarded in the first instance, and the Gen- "All officers of townships of the first and eral Township Act of 1917 (P. L. 862, 865, §§ second class shall produce all accounts and ree194, 233; Pa. St. 1920, §§ 6856, 6869), provid- ords, kept as required by this act, for examing that all officers of townships of the first ination and inspection at any reasonable time, and second class shall produce all accounts and on demand of a duly appointed representative records, required to be kept by them, for ex- of the State Highway Department." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [1, 2] On March 7, 1921, the petition of the | ence because of their relations with grantor. State Highway Department, by Lewis S. were such burden cast upon them. A faithful servant to whom a gift is made does not have cast upon him the burden of disproving undue influence because of the relation of master and servant which does not imply a confidential relation. Sadler, State Highway Commissioner, at-4. Gifts 47(3)-Donee not under burden to tached to a suggestion of the district attordisprove undue influence because of mere reney of Fayette county, was presented to the lation of master and servant. court below, asking for a peremptory writ of mandamus, commanding appellants, as supervisors of Georges township, to produce all official accounts and records in their possession, required by the act of assembly, to Guy D. Swingley and George L. Sollenberger, representatives of the State Highway Department, for examination and inspection as permitted by law. Whereupon the court directed a peremptory writ to go out, requiring defendants to produce, at any reasonable time, the aforesaid accounts and records in their possession on demand of the representatives of the State Highway Department, for their examination and inspection. The mandamus issued accordingly, and the supervisors appealed. They contend the circumstances of this case are not such as to warrant a peremptory mandamus in the first instance, and that the district attorney was not the proper party to ask for the writ. We see no merit in these contentions. The judgment is affirmed. BARNARD et al. v. KELL et ux. (Supreme Court of Pennsylvania. May 26, 1921.) 1. Deeds 72(1) - Where aged and feeble widow intended deed of gift to be absolute, absence of independent advice held immate rial. Where the testimony shows that it was never the decedent's intention to revoke a gift of land to the defendants, but that she intended it to be absolute and outright, and the project of giving the property was her own and originated by her without suggestion of either of the grantees, it was not required that she have independent advice before making the transfer, and the absence of a clause of revocation is without moment. 2. Deeds 211(1) — Evidence held not to show mental impairment of grantor. In an action by distant relatives of decedent to set aside a deed of gift to her tenant and his wife, who had cared for her in her illness, evidence held not to show mental impairment of grantor. 3. Deeds 196 (3) Grantees held to have sustained burden of disproving charge of undue influence. 5. Deeds 47-Signature of witness out of grantor's presence, but at request of attorney, held sufficient. In a suit to set aside a deed of gift, the fact that a subscribing witness signed after grantor had executed the deed and out of her presence, and not by her express request, is immaterial, where he signed at the request of grantor's attorney, who was her agent. 6. Appeal and error 173(6)-Grounds of invalidity of deed not set up in bill should not be considered on appeal. In a proceeding to set aside a deed of transfer of land as a gift, circumstances insisted upon on appeal as reasons for invalidating the deed which were not set up in the bill need not be considered. 7. Deeds 47-Subscribing witnesses being unnecessary it matters not when they sign. Subscribing witnesses to a deed are not necessary, and, if a delivery is made and proved, the instrument is valid, and it matters not when they sign. William S. Kell, defendant, was tenant on one of decedent's farms, and had occupied In a proceeding to set aside a deed for un-it as such for many years. Kell and his wife due influence upon grantor, a childless widow 66 years of age, where grantees were tenants of grantor, and the grantee husband was her messenger and servant, held, that the grantees sustained the burden of disproving undue influ were on terms of intimate friendliness with Mrs. Boden. The relation which he occupied toward her, in addition to that of tenant, was as messenger in her business transac |