down payment of $1,000 out of his personal At all events, plaintiff is in possession, and funds then in hand. The balance was pay- if her right should at any time be questioned able within thirty days thereafter, and find-it can be tested in a proceeding at law which ing it necessary to raise part of the money will afford an adequate remedy. by loan, he borrowed from his mother the sum of $2,160 upon his oral promise to repay it in monthly instalments of $30 with interest at the rate of 4%, coupled with his declaration that he would make it secure, or words to that effect. What form or character of security he had in mind, if any, wasn't mentioned. He took the mother's check to his own order, deposited it in bank with other moneys standing to his credit, and afterwards applied it to the payment of the balance of the purchase money.

8. Defendant left an employment in this city at a salary of $100 per month. In the 8th paragraph of the bill it is averred that he is in good health, capable of earning that amount, and otherwise of sufficient ability to suitably support and maintain his wife and child. The averment is not denied, but on the contrary admitted by the several answers; and the fact is accordingly so found. It is also noted that on August 28, 1915, defendant had upwards of $500 in bank-made up in part of the $200 above 5. Mrs. Jayne now makes no claim of mentioned-which he drew on that date. ownership, but looks to the property to 9. The relief asked for is contested only secure the unpaid balance of the loan to-on technical grounds as an attempt to congether with such expense on account of the vert Mrs. Jayne's legal title either (1) into insurance and taxes as she has incurred a trust, contrary to the provisions of the since defendant absconded. It was he who Act of 22 April, 1856, P. L. 532; or (2) a took possession when the deed was delivered mortgage as against the Act of 8 June, 1881, and that possession has never been disturbed. P. L. 84. It was he who paid the cost of insurance and the taxes so long as he remained here. The insurance was in his name, and Mrs. Jayne had none in her name until his policy expired after he ran away. Other than that and the payment of taxes in recent years, no act suggestive of either control or ownership has at any time been exercised by her. The money so paid was $89.61 for taxes and $28 for insurance.

The facts are believed to warrant the following

CONCLUSIONS OF LAW.

I. As against her husband the plaintiff is entitled to relief proportioned to his circumstances and the station in life to which the wife had been accustomed so long as they lived together. Such relief should date from the time of desertion, say September 1, 1915, having regard to the valve of his real property, the amount of cash traced to his hands when he abandoned his wife, and his admitted earning capacity and ability at all times to suitably maintain her.

6. The stipulated payments were made by defendant and accepted by Mrs. Jayne until January, 1915, inclusive. These were made by check. The last one on account of principal bore the notation "payment No. 2. Defendant, Lawrence C. Jayne, should 17." Thereafter the interest was paid to pay to his wife the sum of thirty-five dollars the following month of July. The balance per month from the date of desertion, the owing by defendant on account of the loan first payment thereof to be deemed to have is now $1,650, with interest from July 1, become due and payable in the month of 1915. September, 1915, and the like sum success7. Another subject of the bill is defend-ively each and every month thereafter. Thus ant's household furniture. Just before the the arrears for which he is liable at this time date of his desertion he had raised the sum will amount to the sum of seven hundred of $200 by pledging the furniture to a loan and thirty-five dollars to June 1, 1917. company in this city. The parents are 3. The Linden Street property decharged with complicity in that transaction scribed in second Conclusion of Fact is coupled with the allegation that they after- chargeable with the payment thereof for the wards succeeded to the rights of the pledgee reason that it was bought by defendant for by transfer, with intent to deprive plaintiff his own use and wholly paid for with his of the goods. This averment is not made own moneys, though in part borrowed from out. True, that loan was paid the follow- his mother. ing month by either Mr. or Mrs. Jayne, though I cannot find that the bailment con- as the mere holder of the legal title to the property as trustee, while the beneficial

tract was assigned to them or either of them.

4. Gertrude E. Jayne must be regarded

ownership is in the defeendant, Lawrence C. Jayne. As such the property is subject to seizure for his deb:s, or other liabilities in the nature of debts when reduced to judgment either at law or in equity.

Houck & Benjamin for petitioner.
O'Brien & Kelly, contra.

May 14, 1917. EDWARDS, P. J.-The petition in this case is filed under the Act of April 16, 1903, P. L. 212.

5. What standing, if any, Gertrude E. While the petition and answer are quite Jayne may have to reclaim the unpaid bal-voluminous we shall refer to two facts only, ance of her loan out of the property is a which, in our judgment, control the dequestion which does not arise on this issue termination of the controversy. and need not be considered. It can be determined only on distribution; but she should be enjoined as stated below. The costs should be paid by Lawrence C. Jayne. ... 6. A decree should accordingly be entered substantially as follows:

(1). Enjoining both Gertrude E. Jayne and Lawrence C. Jayne against disposing of or encumbering the lands and tenements described in the second Conclusion of Fact;

First. According to the petition itself, supplemented as it is by the answer, the record title to the property located on Colfax Avenue, Scranton, is in Patrick Langan. of record since 1907. He has a deed in fee simple, which has been

Second. The petitioner, Nellie Joyce, has no paper title of any kind. If she has any right at all, it arises from a parol promise on the part of Patrick Langan, the brother, tending to establish a resulting trust in favor of the sister, Nellie. According to (2). Charging said premises with the the eighth paragraph of the petition the payment ef the money hereinabove awarded brother promised "that with the proceeds" to plaintiff, to wit, the sum of $735 already of the sale of the Emmett Street property accrued and the further sum of $35 per "he would purchase a lot on Colfax Avenue, month to be computed from June 1, 1917; build a double house on the same and convey (3). Directing the seizure and sale of to said Sarah Langan (the mother) and the premises to enforce this decree if for the period of thirty days after the same shall have been formally entered, the defendant, Lawrence C. Jayne, shall neglect to pay said arrears, or shall make default for the like period in and about any future instalment as the same shall accrue.

Nellie Langan (now Nellie Joyce) a life estate in their choice of the two sides of said double house and corresponding portion of said lot, for the life of them and the survivor of them," etc.

We add that the possession claimed by the petitioner is denied in the answer, where

(4). Directing said Lawrence to pay the in it is alleged that she is a tenant by suffercosts of this proceeding.

C. P. of

ance only since the death of the mother in 1916. No depositions have been taken on either side, so that the question of possession and the character of the possession, affirmed by one party and denied by the other, is not Lackawanna Co. established. On account of the nature of

Joyce's Petition.

Actions - Form-Settling Title to Land.

Neither a rule to bring ejectment under Act April 16, 1903, P. L. 212, nor a petition for an issue under Act June 10, 1893, P. L. 415, is an apprópriate remedy to settle title to land, where the petitioner's right, if any, arises from a parol promise by the holder of the legal title, tending to establish a resulting trust in her favor. The petitioner should proceed by bill in equity to first establish the resulting trust claimed in her petition.

Rule to bring ejectment.

the answer the petitioner moved to amend the rule so as to allow the court to frame an issue under the Act of 1893.

We are of the opinion that the petitioner has mistaken her remedy. She ought to proceed in equity to first establish the resulting trust claimed in her petition. The Act of 1889, as amended by the Act of 1903, P. L. 212, was not intended to apply to a case like the one at bar.

The rule to bring ejectment is discharged.

SUPREME COURT

City of York's Appeal.

[BRUGGEMAN ET AL. V. CITY OF YORK,

been error.

No. 3.]

Defendant's motion for judgment z. o. v. should have been granted on the ground that the negligence complained of was not the proximate cause of plaintiff's injury.

judgment n. o. v. was also refused, by Ross, J.; Bruggeman et al. v. City of York, No. 3, 31 YORK LEGAL RECORD I.

From the judgment there entered this appeal was taken.

John L. Rouse for appellant.
Niles&Neff for appellee.

June 30, 1917. WALLING, J.-This is an action for personal injuries resulting, as alleged, from an accumulation of filth in a public street. In 1912, defendant city built the Eagle Engine House on a lot locat,

Negligence-Remote Cause-City Street. Plaintiff brought suit to recover damages for loss of eyesight caused by filth from a gutter entering her eve, by reason of a broom, with which she was cleaning the gutter, catching at a wire therein. The court below (Ross, J.,) submitted the question of negligence to the jury, which founded on the west side of Jessop place, between for the plaintiff. A motion for judgment for the Jackson street and Rose alley in said city; defendant n. o. v. was overruled. HRLD, to have and in so doing raised the grade of the lot and to make a convenient roadway thereto filled up the brick gutter on the north side of the property. The land descended to the west and raising the grade of the lot and stopping up the gutter caused the water in wet weather to overflow the street and make a large pool, sometimes covering parts of the adjoining lots, especially plaintiffs' lot, 1 The immediate cause was not set in motion by Place and Rose Alley. The gutter extended located on the Northeast corner of Jessop the original wrong doer, nor was it the result of an unbroken succession of events, or of concurring from the East down Rose Alley across Jessop Place, and seemed to be in the nature of an open sewer; for when the stagnant water, caused by the filling of the lot and gutter as above stated, would evaporate, germ ladened filth with foul odors would be there found. This would seem to have constituted a nuisance, which the defendant;

The foul mud in the street was the condition and perhaps remote cause of the injury, but the coiled wire which threw the mud in plaintiff's face, as she pushed it with her broom, was the immediate, unrelated and intervening cause of

the accident.

causes.

No. 125, August Term, 1914.

Appeal from the judgment of the Gourt of Common Pleas of York County, Pa.

although having notice, failed to abate until

after the occurrence in question. d

The other questions of law and fact arising from the raising of the grade of a lot on which defendant city was erecting a fire engine house, and the filling and bridging On October 21, 1912, the plaintiff, Mrs.; of a gutter for the purpose of more readily Bruggeman, took a broom and went out to entering on the lot, are found in Bruggeman clean up some of the filth so deposited in the et al. v. City of York, 29. YORK LEGAL alley in front of her home, and, in an effort RECORD 19; Bruggeman v. City of York, to remove a coil of wire which had become 29 YORK LEGAL RECORD 85; Bruggeman's lodged in the pavement or gutter, she pushed Appeal, 30 YORK LEGAL RECORD 48; City it with the broom so that it sprung back, of York's Appeal, 30 YORK LEGAL RECORD and in so doing sent a splash of the street mud into her face and left eye, thereby caus

53.

The third litigation arose from the at-ing, as the jury found, the loss of the sight tempt of the plaintiffs to recover damages thereof. There was nothing to indicate that for the loss of an eye, by reason of defend- defendant was in any manner responsible for ant city's negligence in allowing the gutter the presence of the wire in the street. The of a city street to remain in a filthy condition, which filth was occasioned by a change of grade of a lot and obstruction of the natural drainage. The jury having found for the plaintiff a motion was made for judgment for defendant n. o. v. A motion to have the court in banc hear the same was refused; Bruggeman et al. v. City of York, No. 2, 30 YORK LEGAL RECORD 205; and the

trial judge submitted the case to the jury, including the questions of negligence, proximate cause, etc. The jury found for the plaintiffs and the court overruled defendant's motion for judgment non obstante veredicto and entered judgment on the verdict; hence this appeal.

In our opinion defendant's motion for judgment should have been granted on the

The facts being undisputed, the question of proximate cause is for the court; Douglass v. Railroad Co., 209 Pa. 128; Pass. Ry. Co. v. Trich, 117 Pa. 390. We do not deem it necessary to decide whether a municipality is liable for personal injuries resulting from the unsanitary condition of its streets.

The judgment of the court below is reversed and is here entered for the defendant.

Fetrow's Estate. No. 2.

[RUPP'S APPEAL.]

ground that the negligence complained of as under the surrounding circumstances of was not the proximate cause of plaintiff's the case might and ought to be foreseen by injury. "A proximate cause, in the law of the wrong doer as likely to flow from his evidence, is such a cause as operates to pro- acts;" Swanson v. Crandall, supra; while duce particular consequences without the such an injury as here complained of could intervention of any independent unforseen not be foreseen as a result of permitting cause without which the injuries would not mud and filth to remain in a roadway; nor have occurred;" 21 American and English could it be forseen that any personal injury Encyclopedia of Law (2 Ed.) 485. "A would result therefrom to a person upon the proximate cause is one which, in actual se- sidewalk. The immediate cause here was quence, undisturbed by any independent not set in motion by the original wrong cause, produces the result complained of;" doer, nor was it the result of an unbroken Behling v. Pipe Lines, 160 Pa. 359. "A succession of events, or of concurring causes. prior and remote cause cannot be made the basis of an action if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated and efficient cause of the injury;" 29 Cyc. 496. Here the foul mud in the street was the condition and perhaps remote cause of the injury, but the coiled wire which threw the mud in plaintiff's face, as she pushed it with her broom, was the immediate, unrelated and intervening cause of the accident. The mud was passive; the active agent was the wire when set in motion by the broom, and aside from it the accident would not have happened. We see no difference in principle between mud being thrown by a wire and fire being carried by water, and in the latter case the water was the intervening cause; Hoag and Alger v. Lake Shore and Michigan Southern Railroad Co., 85 Pa. 293; as was the fall from the ladder, and not the exposed live electric wire, in Elliott v. Allegheny L. Co., 204 Pa. 568, and as was the breaking of the traces and not the want of a guard rail in Willis v. Armstrong County, 183 Pa. 184. And such intervening cause may be either animate or inanimate; and where two distinct causes are successive and unrelated in their operation, one of them must be the proximate and the other the remote cause; Herr v. City of Lebanon, 149 Pa. 222. The act of a child may be the proximate cause: Rhad V. Duquesne Light Co., 255 Pa. 409; Swanson v. Crandall, 2 Pa. Super. Ct. 85. The final result here cannot be said to be the natural and probable result of defendant's negligence. See King v. Lehigh Valley R. R. Co., 245 Pa. 25.

Will-Life Tenant-Contingent Remainders-Period of Vesting-Survivorship.

Testator devised certain real estate to D for

life and directed that at her death it shall be sold and the proceeds "equally divided among the surviving devisees named in my will, or their legal representatives-" The auditor distributed the Proceeds of sale of the real estate amongst the devisees who survived the testator or their legal representatives. On exceptions filed, the court below, WANNER, P. J., held that the entire fund should have been awarded to the executors of F, who was the only legatee who survived the life tenant. On appeal, HELD, to have been error, and that the Auditor's report must be confirmed.

The reasonable interpretation of the phrase "surviving devisees or their legal representatives," tor's death and construe "or their legal repre," is to refer the word "surviving" to testasentatives," as intended to prevent the lapse of the shares of any legatees who might die before. the time for distribution should arrive.

This interpretation placed upon the phrase avoids intestacy and secures equality of distribution among the legatees.

Appeal from the decree of the Orphans' Court of York County, Pa.

For the report of the Auditor (McClean Stock) making distribution, and the opinion of the court below (WANNER, P. J.,) susThe rule is well settled, "that the injury taining exceptions to the Auditor's report, must be the natural and probable conse- see Fetrow's Estate, 30 YORK LEGAL quence of the negligence; such a consequence RECORD 141.

From that decree this appeal was taken.

Cochran, Williams & Kain for appellant. Jacob E. Weaver and D. H. Yost for Jacob E. Weaver and D. H. Yost for appellee.

Lucinda Dietz, who subsequently married John Rutter, died December 15, 1914, and the property devised to her for life was sold by George A. Fetrow, administrator d. b. n. c. t. a. of Joshua Fetrow.

visees" are to apply to a period other than them apply to the period of the life-tenant's that of testator's death. In order to make death, the court below inserted the additional word "then"." But that word is not found in the will, in that connection. It also became necessary practically to ignore the words "or their legal representatives." It is true that the court suggests that these words were intended to provide an alternative distribution of the fund in the event of all the legatees named in the will dying before the death of the life-tenant. But the result of such a construction is that in case one of the legatees survived the life-tenant, which actually occurred, the words "or their legal representatives" are given no effect whatever.

June 30, 1917. POTTER, J.-Joshua Fetrow died February 25, 1884, leaving a will which contained the following provision: "I give devise and bequeath unto Lucinda Dietz, widow of Daniel Dietz, deceased, now living with me during her natural life, the house and land situate in said Spring Garden Township, adjoining the Codorus Navigation, Loucks Mill Road and lands of Daniel Immel and Alexander Hay and being the same premises lately occupied by Joseph Sample. She to have and hold the same and keep it in repair during her natural life at her death the same to be We think the reasonable interpretation of sold and the proceeds thereof to be equally the phrase "surviving devisees or their legal divided among the surviving devises (de- representatives," is to refer the word “survisees) named in this will or their legal viving" in accordance with the rule, to testa representatives." tor's death and construe "or their legal representatives" (whether meaning executors and administrators, heirs or next of kin), as intended to prevent the lapse of the shares of any legatees who might die before the time for distribution should arrive. The court admits that the words must have been given that meaning, if all the legatees had died before the date of the life-tenant's death. It is not probable that the testator intended that, if none of the legatees should live to share in the fund, the legal representatives of all should take, but if one only should survive, the legal representatives should all be excluded. We think the construction adopted by the auditor was in accordance with the testator's intention. If "surviving" refers to the death of the life-tenant, as was held by the court below, then the death of Michael Fetrow during the life tenancy would have created an intestacy. The interpretation placed upon the phrase by the auditor avoids intestacy and secures equality of distribution among the legatees. We think the testator evidently intended that the proceeds arising from the sale of the property should be divided among certain persons, who were definitely determined by his will as construed in Fetrow's Estate, 58 Pa. 424, and the legal representatives of such of them as predeceased the life-tenant.

The question here in controversy, is whether, when the testator directed that the proceeds of the real estate in which he devised a life interest to Lucinda Dietz, "be equally divided among the surviving devisees named in this will or their legal representatives," he intended that the recipients of his bounty should be the devisees who were living at the time of his own death, or those only who would survive the life tenant. The auditor held that he intended the former, while the court below was of the opin ion that the latter was intended. In the one case the legacies would vest at the death of the testator, and in the other at the death of the life-tenant. As only one of the devisees, Michael Fetrow, survived the lifetenant, the court below held that he took the entire fund and awarded it to his ex

ecutors.

The general rule in Pennsylvania is, and always has been, that the words "survivor" or "surviving" following a prior gift, are understood as referring to the death of the testator, unless a contrary intention is apparent; Shallcross's Estate, 200 Pa. 122; Woelpper's Appeal, 126 Pa. 562; Ross v. Drake, 37 Pa. 373. We find nothing in the will of Joshua Fetrow which discloses an intention that the words "surviving de

The assignments of error are all sustained, the decree of the court below is reversed, and the record is remitted that distribution may be made in accordance with the report of the auditor.