guage of the will was, 'If my said son should die without children, grandchildren, or wife living, then his portion of his estate, under this will, and any increase thereof, I bequeath and devise as follows.' Looking at the context of the will, in that case, the words any increase thereof' will be found much more suggestive of the idea above mentioned than are the words here under consideration, and yet they were given no effect. An ambiguous term should not be allowed to defeat a wise and just rule of construction. Perhaps the construction here adopted is not the only one which can be argued for with some show of reason. I think, however, that it is more fair in its results, and in better accordance with the testator's general intent, than any other. Moreover, it is indirectly in harmony with decided cases. It may be observed that the will makes no express disposition of Catherine's original share in case of her marriage. While, in that event, Robert was required to pay her the $1,000, his right to anything more than a share, under the intestate laws, of what she would have to forego, is left wholly to implication. But this is a question which can have no practical interest, for him or any one else, unless his construction be the correct one. The objection to the jurisdiction of the court, set up in the last paragraph of the answer, is met by Act May 9, 1889 (P. L. 146). And now, to wit, May 1, 1893, the answer of Robert Jackson is overruled, and an inquest awarded."

John M. Buchanan, Alfred P. Marshall, and Wm. A. McConnel, for appellant. Louis E. Grim and David S. Naugle, for appellee.

FELL, J. In the case of Jessup v. Smuck, 16 Pa. St. 327, relied on by the appellant, the son whose estate was held to be limited was treated in the will as living at a period subsequent to the death of the testator, and the terms in which the contingency and limitation were expressed were considered as repelling the inference that the testator contemplated the death of the first taker before his own. The principle that the devise of a fee absolute in the first instance cannot be reduced to an estate for life unless the intention to do so is clear is recognized in the opinion, and the case is not in conflict with the rule of construction, so often stated in our cases, from Biddle's Estate, 28 Pa. St. 59, to Mitchell v. Railway Co., 165 Pa. St. 645, 31 Atl. 67, that where the gift is plainly a fee simple, to take effect immediately in possession, a devise over in case of the death of the first taker means his death in the lifetime of the testator. The decision of the learned judge of the orphans' court is in harmony with the general rules of construction, and with the act of April 8, 1833, which provides that "all devises of real estate shall pass the whole estate of the testator in the premises devised, although there are no words of inheritance or perpetuity, unless it appears by a devise over or by words of limitation or otherwise

in the will that the testator intended to devise a less estate. The construction, if it is necessary to resort to the established rules, should be in favor of the first, rather than of the second, taker; of an absolute or vested estate, rather than of a defeasible or contingent one; of a general or primary intent, rather than of a particular or secondary one. Smith's Appeal, 23 Pa. St. 9; Etter's Estate, Id. 381; Letchworth's Appeal, 30 Pa. St. 175; Womrath v. McCormick, 51 Pa. St. 504. This construction, we think, gives effect to the actual intent. The real estate devised by the testator to his daughter was worth about $6,200. The stock on the farm was owned by the son. The testator's daughter had always lived with him, and for 10 years had had sole charge of his house. Her proportion of the charges imposed-the payment of the legacy to another daughter, and the maintenance and education of the testator's grandson -amounted to more than the value of a life estate in one-half of the farm; and, unless this construction be given, she takes nothing of value under the provisions of a will certainly intended to be of substantial benefit to her. The implication arising from the words "what remains" is that she had an unlimited power of disposal, which is inconsistent with the existence of a valid limitation over. In the first instance, he gives her a vested estate unlimited in point of duration; and that the subsequent provisions were meant to become operative only in the event of her death in his lifetime is quite as probable as any other supposition. There is, at least, no clear evidence of a contrary intent, and the law regards with disfavor conditions subsequent divesting or reducing a vested estate. The assignments of error are overruled, and the order of the orphans' court is affirmed, at the cost of the appellant.

(179 Pa. St. 553)

CITY OF PITTSBURGH v. MAXWELL. (Supreme Court of Pennsylvania. Jan. 4, 1897.)

EFFECT OF APPEAL-SUPERSEDEAS-MUNICIPAL AS

SESSMENTS.

Where six separate lots on the same street are assessed for the same improvement, the owner cannot, by appealing from the assessment as to four of the lots, suspend proceedings to collect the assessments against the other two.

Appeal from court of common pleas, Allegheny county.

Rule by Ada P. Maxwell against the city of Pittsburgh to show cause why a lien filed against petitioner's lots for the cost of street improvements should not be stricken from the record. From a decree discharging the rule, petitioner appeals. Affirmed.

Chas. A. O'Brien, for appellant. Clarence Burleigh and Thos. D. Carnahan, for appellee.

DEAN, J. The appellant is the owner of six separate and distinct lots of ground,

fronting on O'Hara street, in the city of Pittsburgh. The city, by proper ordinances, graded, paved, and curbed the street under the act of 1891; then had viewers appointed to assess damages and benefits. Assessments were made against Mrs. Maxwell of benefits; of what amount or on what particular lot or lots of those she owned nowhere appears from the assessment itself, in either of these paper books. The report of viewers is not printed, nor even abstracts from it, which would give us the required information in so important a particular. It does appear that the report was confirmed nisi on 26th September, 1895. But Mrs. Maxwell appealed from the assessment made by the viewers, and demanded a jury trial. The appeal and decree thereon are not printed. Whether she appealed from assessment of damages and benefits on any particular lot or lots we do not know from the appeal itself. On June 2, 1896, the city filed a lien, claiming the sum of $1,825, with interest, against all that certain lot of ground beginning on east side of O'Hara street, at the corner of Elmer street; thence, along said O'Hara street, 201.71 feet, to the corner of Holden street; and thence, extending back 153.12 feet, to an alley. The claim, as expressed in the lien, is for "grading, paving, and curbing O'Hara street, from Fifth avenue to Pennsylvania Railroad, which was assessed against the property by report of viewers confirmed absolutely 2d January, 1896." On the 24th of July, 1896, Mrs. Maxwell presented her petition to the court, praying that the lien be stricken from the record, on the grounds that on 21st of April, 1896, the confirmation absolute had been vacated, because of her pending appeal, and therefore, as to her, the filing of a lien was premature; that the city must await the event of her appeal. Thereupon the court granted a rule on the city to show cause why the lien should not be stricken off. To this the city made answer that, by an inspection of the record of the appeal, it appeared that Mrs. Maxwell appealed only as to two certain lots of her property, 641 and 645, fronting 65 feet on O'Hara street, and extending back 100 feet, upon each of which was erected a two-story dwelling house; that petitioner now sought to have the order vacating the confirmation apply to all her property, those lots as to which the assessment was not appealed from, as well as to those that were. After hearing, the court, on September 15, 1896, discharged petitioner's rule, filing no opinion. The effect of the decree is to leave petitioner's property, lots 641 and 645, subject to the municipal lien. From this decree she appeals.

We are left in the dark as to the reasons for the decree. The court probably found as a fact, from the record, that the appeal and demand for jury trial were as to some other of the six lots than the two against which the lien is filed. We think this probable, because appellant nowhere states, either in his

history of the case or argument, that the appeal and demand for jury trial were as to the assessments made against all the lots, while the city distinctly avers in its answer to the rule that no appeal was taken from the assessment against these two. But "a judgment is not to be reversed at random or for suspicion of error. Where it may be erroneous or not, according to the existence of circumstances which do not appear, every intendment of fact is to be made in support of it." Appeal of Gram, 4 Watts, 44. On the assumption, then, that the grounds of the decree were that no appeal was taken as to these two lots, the question raised is whether the owner of six lots on same street, assessed for the cost of the same improvements, can, by appealing from the assessment as to four of them, suspend the city's proceeding to collect the assessments on the two not appealed from, until the event of the appeal. Appellant argues, that must be the necessary consequence, and for this view is cited Appeal of Pennsylvania Steel Co., 161 Pa. St. 571, 29 Atl. 294. But that case is not in point. There the court of common pleas appointed viewers to assess damages for the opening of a street, who filed their report, awarding the steel company $3,550 for land taken. When the report of the viewers was filed, the steel company filed exceptions, and also, on the same day, took an appeal to the court for a jury trial. As to the exceptions, the court below ruled they all raised questions of fact to be determined by a jury, and overruled all but one. Treating this as a final decree, the company appealed to this court, and made application to Justice Thompson, in vacation, for an order suspending proceedings while the appeal was pending. It was ordered that all proceedings be stayed until this court had passed on the appeal from the decree overruling the exceptions. Thereupon the city of Harrisburg moved in this court to quash the appeal of the steel company, and set aside the order of Justice Thompson, on the ground that the decree overruling the exceptions was not final; therefore no appeal lay from it. This court, the present chief justice rendering the opinion, held the decree was not final, and the appeal therefrom was premature; that there could be no final decree until after the event on the appeal by the steel company to the court of common pleas from the assessment by the viewers. In the course of the opinion, the chief justice says: "That appeal is still pending and undetermined in the court below. It involves, among other things, the determination by jury trial of the amount of damages to which the steel company is entitled for property taken, injured, or destroyed. Unless the proceeding should prove to be so fatally defective as to require dismissal without consideration of the case on its merits, there cannot, in the nature of things, be a final decree in the case, until the question of damages is settled by the verdict of a jury."

Appellant's counsel relies on this language to sustain his present appeal. As will be seen from the facts, it does not touch his case. The land taken from the steel company was in one tract, and damages awarded in the lump for the land taken. Of course, there could not, "in the nature of things," as stated by the chief justice, be a final decree until the verdict of the jury on the appeal determined, as a question of fact, the amount of damages. But the appeal as to four of these lots in no way affects the benefits assessed against the two unappealed from. Whatever may be the event of the appeal, the amount of benefits assessed against the two is not diminished. The only possible effect is that if, in her appeal as to the other lots, she is successful in largely diminishing the assessments against them, her ability to pay the lien on the two will be increased. That is a contingency which can have no place in our determination of this contention. The decree of the court below is affirmed, and the appeal dismissed.

(179 Pa. St. 31)

RATHGEBE ▼. PENNSYLVANIA R. CO. (Supreme Court of Pennsylvania. Jan. 4, 1897.) CONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY

-TRIAL-HARMLESS ERROR.

1. The question whether a passenger was negligent in passing over a sloping part of a station platform in going to a train, instead of going down steps, there being ice and snow on the platform,-is one for the jury, under all the evidence.

2. Prejudice cannot be presumed from the admission of incompetent testimony, which, on motion of the appellant, was withdrawn from the jury before argument, and in regard to which the jury were properly and positively instructed.

Appeal from court of common pleas, Westmoreland county.

Action by Mary Rathgebe against the Pennsylvania Railroad Company to recover for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

Gaither & Woods, for appellant. Robbins & Kunkle, for appellee.

MCCOLLUM, J. This action was brought to recover damages for personal injuries alleged to have been received by the plaintiff on the 19th of January, 1893, through the negligence of the defendant. It was conceded on the trial that the plaintiff fell and was injured while walking from the waiting room to the train, but there was a conflict in the evidence as to the place where she fell. The plaintiff claimed that she fell on the slope, while the defendant claimed that she fell on the platform between the side track and the Sewickley track. The defendant's claim involved an admission that the plaintiff's fall was caused by the ice on the platform between these tracks, but it did not necessarily convict the defendant of negligence, because It was shown and undisputed that this ice

must have been formed from the water which leaked or was splashed upon it from the water cars which passed on the Sewickley track but a few minutes before her fall. The evidence submitted by the defendant was mainly directed to this line of defense, and the learned judge of the court below substantially charged the jury that, if it was credited by them, the plaintiff could not recover.

The plaintiff claimed that the defendant was chargeable with negligence in the construction of the station platform, and in permitting an accumulation of snow and ice upon it. The length of this platform from the west end of the station to the freight platform, and in front of the ticket office and waiting room, was about 50 feet. Along the whole length of it, facing the track, it was 10 or 12 inches higher than the track platform. For at least three-fifths of the length of the station platform there was a slope from it to the platform below. The width of the slope was about 3 feet, and at each end of it there was 9 or 10 feet of platform, terminating in a 10 or 12 inch step. Passengers, in going from the waiting rooms to the trains, would have to pass over this step or over the slope. They were not limited, by any order or direction of the defendant, to either route, but were at liberty to pass over any part of the platform on their way to and from trains. The evidence showing the construction of the station platform was sufficient to charge the defendant with negligence in this particular, and the evidence in regard to snow and ice upon it warranted an inference that the defendant had negligently permitted them to accumulate there. But the defendant claimed that, if the plaintiff slipped and fell on the slope, she was not entitled to recover, because, in the then existing condition of the platform and its approaches, she was chargeable with contributory negligence in passing over it. The court was requested, but refused, to direct the jury to find for the defendant on this ground. Did the court err in refusing to grant this request? We think not. The question whether the plaintiff was negligent in passing over the slope on her way to the train was, under all the evidence in the case, for the jury. The instructions in regard to contributory negligence and the effect of it upon the plaintiff's case were unobjectionable and clear. The fact that her husband "cautioned her to be careful, as the platform was slippery," and that "she answered that she would be careful," was not a confession of carelessness, or that there was a better route from the waiting room to the train.

A number of witnesses were permitted to testify that the platform and approaches from the station to the tracks were dangerous, but on the request of the defendant's counsel, and before argument, this testimony was stricken out and withdrawn from the consideration of the jury. It is now contended that the court erred in denying the motion of the defendant's counsel to withdraw a juror and con

tinue the cause. The admission of incompe. tent evidence, and the subsequent withdrawal of it before argument, furnishes in itself no ground for continuance, or for reversing the judgment. McGettigan v. Potts, 149 Pa. St. 155, 24 Atl. 198; Canal Co. v. Barnes, 31 Pa. St. 193; Railroad Co. v. Butler, 57 Pa. St. 335; Railroad Co. v. Smith, 125 Pa. St. 259, 17 Atl. 443; School Furniture Co. v. Warsaw Tp. School Dist., 158 Pa. St. 35, 27 Atl. 856. In the case before us there was no good reason for apprehending or believing that the defendant would be or was prejudiced by the testimony which was withdrawn before argument, and in regard to which the jury received positive and proper instructions from the court. Judgment affirmed.

STOCK OF ANOTHER CORPORATION.

1. Under a provision of the charter of a street-railroad company requiring it to pay to a city a tax on the "dividends declared," which, by another provision, were to be such as should appear advisable to the directors, not exceeding the net earnings, a lease of the property of the company to a new corporation for a nominal rental, and the exchange by the stockholders of all its stock for stock in the new corporation, does not constitute the declaring of a dividend rendering the company liable for the tax on the value of all its stock, the effect of the transaction being merely to change the ownership of the stock.

2. Where trustees for a corporation held certain stock in a second corporation, which was exchanged for stock in a third, issued directly to the stockholders of the first, individually, the transaction was a severance of the stock held in trust from the body of the corporate property, and its distribution among the stockholders, constituting the payment of a dividend.

Appeal from court of common pleas, Allegheny county.

Action by the city of Allegheny against the Pittsburgh, Allegheny & Manchester Passenger Railway Company to recover a tax. Judgment for defendant, and plaintiff appeals. Affirmed. Elliot Rodgers, D. F. Patterson, Jos. A. Langfitt, and Geo. Elphinstone, for appellant. A. M. Neeper and D. T. Watson, for appellee.

MITCHELL, J. The Passenger Railway Company, appellee, was chartered by the special act of April 12, 1859, by the provisions of which it was to declare dividends "of so much of the profits of said company as shall appear advisable to the directors thereof," but in no case to exceed the amount of the net profits of the company. By the twelfth section of the act, the company was required, inter alia, to pay to the city of Allegheny a certain percentage "of the dividends declared." The city of Allegheny, by ordinance, gave its consent to the occupation of its streets upon the same condition of the payment of the tax upon "dividends 36 A.-11

declared." The question in the present case is whether the transaction by which the railway company was leased to the traction company, and the stockholders exchanged their holdings of stock in the former for stock in the latter, assuming all these matters to have been parts of the same transaction, was equivalent to the declaration of a dividend by the railway company on which a tax would be due under the charter and ordinance.

It is not necessary at present to discuss the argument of the appellee that only cash dividends are taxable under the charter. If that was the legislative intent, the question would still arise whether any distribution of profits, equivalent to cash, could be made among the stockholders in any form, or by any name, so as to escape taxation. It is sufficient to say that there is no evidence here to warrant a jury in finding any device for such purpose.

The tax is not on par value or market or actual value of stock, nor on profits earned, but on dividends declared. A "dividend," as defined by Webster's Dictionary (1893), is "the share of a sum divided that falls to each individual; a distributive sum, share, or percentage, applied to the profits as apportioned among stockholders." It differs from profits in being taken by competent authority out of the joint property of the partnership or company, and transferred to the separate property of the individual partners or stockholders. No safely conducted business, corporate or other, distributes all its earned profits. There must be a fund reserved for contingencies, for repair or renewal of deteriorated material, etc., and the amount, absolute or proportionate, to be held for such purpose, must be determined by the authority which conducts the business. The power to control this matter is necessarily implied in all authority to make dividends, and in the pres ent case it is expressly vested in the directors, who are to declare such dividends as "shall appear advisable" to them, not exceeding net profits. The words "dividends declared," therefore, have a substantial and settled meaning; and it is upon such dividends only, and not, as already said, on par or market value of stock, or on profits earned, that the tax is laid.

Continuing to regard all that was done by both corporations and the stockholders as parts of a single transaction, as that is the aspect most favorable to the appellant, what was it in substance? First, as to the stockholders individually. It was an exchange of their holdings in the railway stock for holdings in the traction stock, at the rate of one to eight. The shares held by each stockholder were his individual and separate property. He could have sold the railway shares at 320, which was the market price, and bought traction shares at 40, also the market price, and would then have stood just where he stands now, with a change of his property from one form to the other in the ratio of one to eight; yet it would have, been his own private act, with which neither the company nor the other stockholders could have interfered, or for which they would have

been responsible. The nature of the act was not changed by the fact that all the stockholders did it, whether separately or in pursuance of an agreement in which all joined. In either case it was still the individual act of each in his own right. Secondly, as to the companies. The traction company acquired the stock of the railway company, which under its charter it had power to do. It might under such power have gone into the market, and bought railway stock at 320, and sold enough of its own stock at 40 to pay for the other. Instead of the acquisition being made thus by separate purchase and sale of the two stocks, it was done by direct exchange between the owners. The nature of the transaction was not changed thereby. It was a transfer of property from one owner to another, and the personality of the purchaser or the seller did not change its substantial character. Then, as to the railway company, its stock has changed holders, and that is all. The shares are all in existence, just as they were before; but, instead of being owned by numerous individuals, they are held in one hand. In fact they are a valuable corporate asset of the traction company, and are pledged as collateral security for its bonds. As regards the railway company with reference to which the tax is to be considered, there was no distribution or change of what had been the joint corporate property into the separate property of the individual stockholders. The whole transaction was a change of ownership of the same property, and neither in form nor in substance the declaration of a dividend. The cases chiefly relied upon by the appellant, Matson's Ford Bridge Co. v. Com., 117 Pa. St. 265, 11 Atl. 813, and Com. v. W. U. Tel. Co., 15 Wkly. Notes Cas. 331, are not applicable. In both of them the tax was upon the value of the capital stock, and not on the dividends which were mere measures of such value; and in both of them there had been, in fact, a severance of earnings or profits from the mass of the corporate property, and a distribution of them among the stockholders as individuals, which is the essential character of a dividend.

A distinction was raised in the argument here between the transaction as regards the exchange of stock by the holders in the railway company and the transfer to the traction company of the 1,499 shares of the Union Passenger Company. The latter were held by trustees, but under what title or upon what terms does not precisely appear. The distinction was not made in the plaintiff's statement, nor at the trial, and there is no assignment of error raising it specifically in this court; the plaintiff's claim being made upon the entire transaction as single, and involving a tax upon the whole. It appears inferentially in the argument and in some of the evidence that these shares of the Union Company were part of the general assets of the appellee, and that in the arrangement they were transferred to the traction company in consideration of the issue of additional shares of its stock to the holders of the shares of appellee. If such was the fact, it would seem

to be a severance of these shares from the corporate property of the appellee, and a distri bution of their value or equivalent among the stockholders individually; and therefore a dividend, taxable unless the legislative intent was to restrict the tax to cash dividends only,—an intent that could hardly be presumed, and the burden of proof of which would be upon appellee. But, if this were the real state of the facts, there would be no difference, except the question of cash dividend, between the distribution of the proceeds of this Union stock and the proceeds of the sale of the real estate, etc., as to which the learned judge below directed the jury to assess the tax. It would not be safe for us to assume that his including one and excluding the other was the result altogether of not having his attention called to the latter. We must presume that the facts before him did not warrant him in putting both on the same footing. The facts, if fully developed, may, however, be so; and in affirming the judgment, therefore, we do so with leave to the court below to open and reconsider it upon this point, should the facts and the law make it just and proper to do so. Judgment affirmed.

(179 Pa. St. 376)

STRAW et al. v. MURPHY et al. (Supreme Court of Pennsylvania. Jan. 4, 1897.) RES JUDICATA-STIPULATION.

1. A decision on the merits as to a matter submitted on a rule is a bar to subsequent contest of the same matter either by another motion or by bill.

2. Parties, on creation of a fund deposited in bank having stipulated that after a decision in a pending proceeding, or final decision of any appeal therefrom, "it shall be used for the purpose of having an order to disburse said fund in accordance with said decision," cannot object to a rule for an order to have the money paid, as not being the proper form of remedy.

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

Proceeding by W. H. Straw and another against Elizabeth Murphy and Harry J. Smith. From an order discharging Smith's rule for an order, he appeals. Reversed.

Hudson & McCue, for appellant. James Fitzsimmons, for appellees.

MITCHELL, J. This case, as the learned judge below remarked, is very badly mixed, and the court has added greatly to the uncertainty by its failure to indicate the grounds of its action in discharging the appellant's rule for an order that the fund in bank be paid to him. Not having the assistance of its views on this point, we have been obliged to seek for the reasons through a very confused record, and have been forced to the conclu sion that, if the rule was discharged on the merits, the result was in conflict with the court's previous action on the rule to strike off satisfaction of the lien, and if on the form of the remedy sought, the objections were allowed undue weight. The substantial question, in the first aspect, is whether or not