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(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

travel in the car.

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 en

ters 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, Affirmed. 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

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.

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
the space set apart to it between crossings,
must do so with due regard to these su-
While such right of travel
perior rights.
exists, the railway's servants must be duly
observant at crossings of those exercising a
relatively equal lawful right, and, between
crossings, must not recklessly run down
pedestrians on the highway.

[4, 5] Regarding the place and circumstances of this accident, it cannot be said, as matter of law, a speed of 20 miles an hour was either excessive or evidence of negligence; nor was there anything in the circumstances of decedent's death to charge defendant with negligent operation. The motorman had an undoubted right to believe, that, between crossings, pedestrians would recognize the superior right of travel in the defendant's car. There was nothing to obscure the view of the on-coming car, and when decedent walked toward the track,

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

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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,

1. Husband and wife 6(3)-Trust in per-under an express parol agreement to reassign sonalty may be enforced, though the creator intended thereby to conceal the property from his wife.

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 property, despite the contention that the trust was to conceal the property from his wife, for a man may dispose of personal property absolutely 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.

2. Descent and distribution 69

Man may

dispose of personal property by voluntary gift

without defrauding wife or children. During his life a man may dispose of his personal property by voluntary gift or otherwise as he pleases, and it is not a fraud on the rights of his wife or children.

3. Trusts 9-A trust of personalty is valid except as to the creator's creditors.

A man may create a trust of his personal property for his own use valid as to all except his creditors.

4. Descent and distribution

69-Disposition of personalty to defeat wife's statutory rights

valid.

a remark tending to show he was making her a gift. However, the real transaction was an assignment in trust, and not a gift. As to that the chancellor found, inter alia:

"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 prior to the 5th day of November, 1919, the to the plaintiff upon demand; that several days 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 defendant, and in reliance upon the representations and promise made by the said Jennie 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"

5. Descent and distribution 8-Wife entitled to share in property in which husband has beneficial interest.

A wife is entitled to share in trust property in personalty of which her husband was the beneficial owner.

Appeal from Court of Common Pleas, Philadelphia County; William H. Shoemaker, Judge.

Bill by Hyman Mandel against Jennie Bron. From a decree dismissing the bill, plaintiff appeals. Reversed, bill reinstated, and record remitted, with directions to enter final decree for plaintiff.

Argued before FRAZER, WALLING, SIMPSON, KEPHART, and SADLER, JJ.

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 True, plaintiff was temporarily separated it from present or prospective creditors. 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 [amination 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 sioner, attached to a suggestion of the district attorney of the county, commanding certain township road supervisors to produce all official accounts and records in their possession for examination and inspection by certain representatives of the Highway Department. 2. Mandamus 147 - District attorney proper party to ask for the writ to compel production of official records by road supervisors.

of the mortgage to his daughter, whether in trust for his own use or as a gift to her, was not fraudulent as to his wife. "During his life a man may dispose of his personal estate by voluntary gift or otherwise as he pleases, and it is not a fraud upon the rights

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 calling 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.

(270 Pa. 589)

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 examination and inspection by representatives of the State Highway Department. Peremptory 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

Atty., v. SWANEY et al.

(Supreme Court of Pennsylvania. May 26,

1921.)

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 successors." Section 194 of the same act (P. L. 862; Pa. St. 1920, § 6856) provides:

1. Mandamus 180 — Peremptory writ held authorized in first instance, requiring production of official records by road supervisors. 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."

[1, 2] On March 7, 1921, the petition of the State Highway Department, by Lewis S. Sadler, State Highway Commissioner, at tached to a suggestion of the district attorney of Fayette county, was presented to the 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 afore said 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.

(271 Pa. 80)

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 immaterial.

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.

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3. Deeds 196 (3) Grantees held to have sustained burden of disproving charge of undue influence.

ence because of their relations with grantor. were such burden cast upon them. 4. Gifts 47(3)—Donee not under burden to disprove undue influence because of mere relation of master and servant.

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.

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.

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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

(113 A.)

tions, and as servant about her home. His a confidential relation existed between the wife assisted in nursing her in the illness grantor and grantees, and, because of this with which she was afflicted. relation, it was procured by fraud and un

To friends and neighbors Mrs. Boden ex-due influence. As circumstances making for pressed her interest in, feeling of good will its invalidity, they set up the absence of toward, and desire to in some substantial way reward, the Kells for their kindness to her. To one of them, who was produced as a witness on the trial, she made the specific declaration that she intended to give the Kells the farm involved in this litigation.

independent advice to the donor and the omission from the deed of a power of revocation. As to the two latter, it is sufficient to say the testimony shows it was never Mrs. Boden's intention under any circumstances to revoke the gift. She intended it In pursuance of this purpose, she had Kell to be absolute and outright. The project of prepare a paper, in the nature of a receipt, giving the property was her own, originated for the consideration money for the property, by her, without suggestion from either of which she signed, and which by her direction the grantees. In such a situation, on the he took, with the title deeds, to her attorney, facts in this case, no independent advice was who had represented her for several years, required, and the absence of a clause of revand who at that time was acting as her coun-ocation is without moment. sel in settling her husband's estate, of which [2] With reference to the allegations of she was executrix, with instructions to pre-fraud and undue influence, and in connection pare a deed from her to Kell and his wife, therewith, the so-called confidential relationand when completed to bring it to her for ship of William Kell, one of the grantees, execution. to their benefactress, certain observations Acting under these instructions, her at- which we are about to make will clear the torney prepared the deed, and called at her situation. In the first place, this deed is not home, where she was bedfast, to have it to Kell, the husband alone, but to him and signed. He read it to her, she commenting his wife. There is not so much as an inupon it as he proceeded, among other things, sinuation in the testimony that any undue telling him not to read the courses and dis- influence was operative from or through the tances, only the names of the adjoiners, as wife or in her behalf. Furthermore, this she was familiar with the lines of the prop-case is bereft of any evidence of mental imerty. When the reading was completed she pairment of the donor. On the contrary, the signed the deed, announcing that she had been paid for the property, although as a matter of fact she was making a gift of it, and the attorney, who was a notary public, took her acknowledgment and acted as a witness.

She had a short time before sold some of her land to an acquaintance, J. Geary Morrow, and he, at her direction, was called in by Kell also to witness the instrument. Owing to his clothing being dirty, he indicated a desire not to enter Mrs. Boden's sick room, and remained in another room, with the doors leading to her room open, but where he could not hear or see what transpired. He was familiar with her signature, and, after the deed was signed, at the suggestion and by the request of her attorney, but not in her presence, signed the deed as a wit

evidence is all the other way. From neighbors, acquaintances, persons who had business dealings with her, it all vouches her mental soundness and integrity. The two witnesses best qualified to speak, her attorney, who, following the death of her husband, was brought into close and frequent relationship with her in advising upon the settlement of his estate, and the doctor, who was in continuous attendance upon her, both declare her mentally unimpaired; the latter that mentally she was very clear, very acute, precise, that she knew what she wanted, did not care to be crossed in her ideas, and had her mind made up very definitely as to what she cared to have done and was not easily influenced; the former regarded her as a shrewd business woman. also the opinion of the register of wills, who called upon her shortly before the execuDuring the entire time consumed in read- tion of the deed in question to grant letters ing the deed and its execution, Kell was testamentary to her on her husband's espresent in the room with Motter, the gran- tate, and in whose judgment she was a very tor's attorney. No one else was there. The intelligent woman, entirely capable of addeed was delivered after its execution and ministering it. Many of her neighbors spoke recorded. It contained no clause of revoca- to the same effect. The testimony nowhere tion, and the grantor had no independent indicates mental impairment; it shows that advice in the transaction. The farm repre- at times owing to her disease she was very sented in value about one-third of the gran- weak physically, nothing more. tor's estate.

ness.

[1] Shortly after the death of Mrs. Boden, appellants, her cousins and heirs, filed this bill to have the deed canceled and the property conveyed to them, upon the grounds that

This was

[3, 4] So far as the exercise of undue influence upon her is concerned, there is no evidence of it whatever and none of any fraud practiced upon her. In the making of the deed she called in her own attorney, who

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