sums in towns unable to pay one-half the cost thereof, as in the opinion of the Governor and state tax for such city or town." Council may be equitable, shall be added to the "Sec. 3. All acts and parts of acts inconsist line roads, and not under P. S. c. 73, § 4, relating to local or town highways. The same result may be reached for other reasons. The bridge is a part of the Merrimack Valley Road, and the construction was undertakent with the provisions of this act are hereby en under chapter 50, Laws 1915. Case page 2. repealed, and this act takes effect upon its pasSection 1. "Whenever, in the judgment of the sage." Laws 1913, c. 84, §§ 1, 3. Governor and Council, the bridge on the Merrimack Valley Trunk Line highway, connecting the towns of Belmont and Tilton, shall appear inadequate for the increased travel due to the improvement of said highway, the Governor and Council may designate said bridge as a part of said highway, and direct the construction of a new and sufficient bridge at the expense of the state and towns, respectively, in the same manner provided for the construction and maintenance of said highway. The state's portion of the expense shall be a proper charge against any appropriations for the construction and maintenance of trunk lines." Laws 1915, c. 50. Section 1, c. 139, Laws of 1907, "required the Governor and Council to "* designate for improvement * a continuous highway from the Massachusetts state line through the cities of Nashua to Lake Winnipesaukee.' * Chapter 155, Laws 1909, substantially re-enacted the law of 1907, and provided that the route of the Merrimack Valley Road should extend over the road designated by the Governor and Council under chapter 139, Laws of 1907. The trunk line statutes do not require the towns to engage in the proposed improvement, but aim to induce them to do so by the provision that towns through which the route runs shall not be entitled to state aid for other roads therein until the improvement on the trunk line is completed." Opinion of the Justices, 77 N. H. 608, 609, 92 Atl. 551. No provision of the statutes existed prior to 1913 by which the towns of Tilton and Belmont could be required to improve that portion of the route of the Merrimack Valley Road covered by this bridge. The purpose of the act then passed is stated in the opinion cited: "It is common knowledge that in 1913 the three trunk lines were largely completed; the proposed improvements had generally been made throughout the designated routes. There were some gaps where towns had not acted. The statute was not intended to act upon Nashua and Merrimack, which had improved the road within their limits, but to effect action where none had been taken." Opinion of the Justices, 77 N. H. 610, 92 Atl. 552 The act of 1913 reads as follows: "Section 1. The roads designated under sections 15 and 16 of chapter 155 [35] Laws of 1909 [1905], shall be improved by that city, town or place within which they are located, at the expense of such city, town or place and to the satisfaction of the Governor and Council; and such city, town or place, shall receive from the state one-half the cost of such improvement, and such further sums in towns unable to pay that proportion, as in the opinion of the Governor and Council may be equitable. In case any city, town or place shall neglect to improve said roads, after being so requested by the Governor and Council such improvements shall be made under the discretion [direction] of the Governor and Council, at the expense of the state, and Under the authority of this statute, the bridge has been built by the Governor and Council or under their direction. This action cannot be supported under any of the prior statutes relating to highway improvement by state aid because under them action cannot be taken except upon the initiative of the towns. It is not action under the general maintenance duty of towns, because as to the performance of that duty the Governor and Council have no jurisdiction. The action being supportable only under this statute as a part, not of road building or road maintenance, but of highway improvement or trunk line construction, the rights and obligations of the towns are to be determined by its terms. The statute expressly declares that the roads referred to shall be improved by the towns within which they are located at the expense of such towns except as aided by the state. In case the towns, as in this case, neglect to improve the roads upon request, the improvement shall be made by the Governor and Council at the expense of the state, who shall assess one-half of the expense or less upon the towns and add the same to their state tax. What these towns complain of as burdensome is, not the expense incurred by them in building the bridge, but of the sum which they apprehend the executive will assess against them. No statutory provision exists or ever existed for the transfer of such judgment to other towns. The express provision of the statute is that the town's share of the expense shall be borne by the town in which the road is located. If without other provision the general statute for the distribution of road expense could be held to apply, it cannot be construed to do so in face of the express repeal in section 3 of all acts and parts of acts inconsistent with the provisions of the act. A stat ute imposing or authorizing the imposition of a part of the expense upon Laconia, in which the improved section is not located, is in conflict with the provision of this act that the improvement shall be made at the extion is located. pense of the town in which the improved sec If the statutory provisions upon which the plaintiffs rely could otherwise have application to the present situation, they have none, because so far as applicable thereto they are repealed, not by implication, but by express words. Case discharged. PARSONS, C. J., and YOUNG and PLUMMER, JJ., concurred. PEASLEE, J., con (256 Pa. 407) mitted to remain of the width of five feet to WERNER et al. v. CITY OF PITTSBURGH afford exit from the west side of the Miles et al. Theater, which is located on the northeast (Supreme Court of Pennsylvania. Feb. 5, 1917.) corner of Penn avenue and Scott way. MUNICIPAL CORPORATIONS 269(4)—ORDI- thus rebuilt said way has become a twoNANCE-WIDTH OF SIDEWALK-INJUNCTION. way street, where drays and other vehicles An ordinance putting all sidewalks under the direction of the department of public works and fixing the width of sidewalks according to the width of streets applied to all streets old as well as new, so that on improvement of an existing street the width of the sidewalk was to be fixed according to the ordinance, and, where so fixed, a bill in equity to compel the municipality to restore the sidewalk to its original width could not lie. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 723, 724.] can comfortably pass each other, except opposite the theater, where only empty wagons or narrow loads can so pass. The reconstruction of the way was for the purpose of relieving the congested condition of traffic in that locality. Plaintiffs own the property on the northwest corner of Penn avenue and Scott way and it has been in their family since purchased by their father in 1868, and thereon is a Appeal from Court of Common Pleas, Al- four-story stone and brick building. legheny County. Bill in equity by Oswald H. Werner and others against the City of Pittsburgh and others for an injunction and to compel the restoration of a sidewalk to its original width. Bill dismissed, and plaintiffs appeal. Affirmed. Argued before BROWN, C. J., and POTTER, MOSCHZISKER, FRAZER, and WALLING, JJ. Charles W. Dahlinger, of Pittsburgh, for appellants. C. K. Robinson and C. A. O'Brien, both of Pittsburgh, for appellees. WALLING, J. By ordinance of the defendant city, approved January 30, 1907, it is pro.vided, inter alia: "That all sidewalk pavements, curbing, and boardwalks, and the laying and repair of the same, shall be under the direction and control of the department of public works. The width of sidewalks in the city of Pittsburgh shall be as follows: On a twenty-foot street, three feet; on a twenty-four foot street, five feet; on a forty-foot street, eight feet; on a forty-five foot street, nine feet in width on each side, and onefifth of the width of all other streets, except as herein before provided by special ordinance." Scott way is a public street of said city of the width of twenty feet, and extends in a northerly and southerly direction from Penn avenue to Duquesne way. In 1869 it was improved by the construction therein of a pavement and sidewalks, the walk on the west side being then constructed of the width of six feet, and that on the east side of the width of five and one-half feet, and so remained until 1915. It does not appear that the width of the sidewalks or either of them had been fixed by special ordinance. As so constructed, the cartway was not of sufficient width for vehicles to pass each other, and it was a one-way street or alley. Their property abuts on said way for a distance of 120 feet. Plaintiffs constructed the new walk in 1915 as ordered by the city. However, at that time said Oswald H. Werner, who had charge of this property, was absent from the city; and on his return, being dissatisfied with the width of the walk as then established, with the other plaintiffs brought this bill in equity to secure a restoration of the west sidewalk to its original width of six feet. The court below held that plaintiffs were not entitled to the relief prayed for and dismissed the bill. The right of a city to fix the width of the sidewalks in its public streets is unquestioned; but it is earnestly urged for plaintiffs that the ordinance in part above quoted only refers to new streets thereafter opened, and does not effect or authorize a change of the width of existing walks. We agree with the court below that, the language of the ordinance being general and unrestricted, applies to all streets old as well as new, and that in repairing and otherwise improving an existing street the width of the walks should be adjusted in accordance with the terms thereof. Such construction is justified by the language of the ordinance and will tend to produce uniformity. Plaintiffs ask no relief as to the width of the walk on the east side of said way opposite their property; so it is not necessary here to determine whether the director of the department of public works exceeded his authority in permitting that walk to be so reconstructed of the width of five feet. The assignments of error are overruled, and the decree is affirmed. (256 Pa. 487) In re STEPHENSON'S ESTATE. (Supreme Court of Pennsylvania. Feb. 19, 1917.) CHARGE UPON In 1915, at the instance of the director of the department of public works of said city, Scott way was improved by change of grade and repaving; and at the same time the 1. WILLS 825 - LEGACY curb was set so as to make the west sidewalk LANDS-LIMITATIONS. of the width of three feet and the north part Where one claiming a payment of a charge on lands does not show either a claim or a deof the east sidewalk of the same width; but mand for payment on the owner, or a payment the south end of the east sidewalk was per-upon or an acknowledgment of the existence of such charge within 21 years from the time it be-, 1 LEGACY 2. WILLS 825 LAND-LIMITATIONS. CHARGE UPON Where testator gave a money legacy to a minor in trust, payable on her majority as the trustee might deem necessary, the legacy be came a charge upon land from the time of testator's death, and was presently demandable, and, where the legatee had made no demands for pay ment and there had been no acknowledgment that the fund was subject to the charge, her action to charge realty with the payment of such legacy, brought 28 years after testator's death and 24 years after her majority, was barred by Act April 27, 1855 (P. L. 369) § 7. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 2124–2127.] 3. WILLS 825 — LEGACY - CHARGE-RE - MOVAL OF BAR OF LIMITATIONS. To remove the bar of Act April 27, 1855 (P. L. 369) § 7, relating to limitation of actions to recover money charged upon realty, a demand must be made, or an acknowledgment made by the owners sought to be affected thereby in accordance with Act Feb. 26, 1869 (P. L. 3); declarations of a life tenant affecting only her own interest. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 2124-2127.] 4. WILLS 825-LEGACY-CHARGE ON LAND -LIMITATIONS-PLEADING. In such case it is not necessary to plead Act April 27, 1855 (P. L. 369) § 7. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 2124–2127.] shall be deposited by my executrix in some good bank for her use until she arrives at the age of twenty-one (21) years and should any part of said principal be necessary for her before she arrives at said ago such amount shall be paid to her as to my executrix may seem proper and should Maggie J. Lewis die before she arrives at the age of twenty-one (21) years the said five thousand ($5,000.00) dollars shall go to the remainder of my heirs after death of my wife Mary, less such amount as the executrix deemed necessary for her during her minority. "Sixth. All the remainder of my property real personal and mixed where ever the same may be at the time of my death I hereby give and bequeath unto my beloved wife Mary Stephenson for and during the term of her natural life. Mary Stephenson, sole executrix of this my will "Seventh. I hereby appoint my said wife, and testament." The same day he added a codicil as follows, viz.: "The five thousand ($5,000.00) dollars bequeathed to Maggie J. Lewis or such sum as shall remain, at the time that the said Maggie J. Lewis arrives at the age of twenty-one (21) years shall remain in the hands of my executrix and by my said executrix paid to the said Maggie J. Lewis in such parts as my said executrix may deem to be necessary for the said Maggie J. Lewis." He died on September 30th of the same year; and his will and codicil were duly probated and letters testamentary issued to his widow. Aside from his granddaughter and widow, the testator left four children to whom he made specific devises of certain real estate, not including, however, the farm hereinafter mentioned. Mrs. Stephenson survived her husband ten years, but never filed any account or made Appeal from Orphans' Court, Allegheny any settlement of the personal estate, which County. Petition by Maggie J. Lewis for a decree for charging land of the estate of Thomas Stephenson, deceased, with the payment of a legacy. From a decree charging the land, Thomas B. Stephenson and others appeal. Reversed. The court found that $2,500 of the legacy bequeathed to Maggie J. Lewis was unpaid, and directed that decedent's land be charged with the payment of said legacy, with interest from the date of the death of the executrix. Thomas B. Stephenson and others appealed. Argued before BROWN, C. J., and MESTREZAT, POTTER, MOSCHZISKER, and WALLING, JJ. George C. Bradshaw and Thomson & Bradshaw, all of Pittsburgh, and Hice, Morrison, Reader & May, of Beaver, for appellants. Elmer L. Kidney, of Pittsburgh, for appellee. WALLING, J. On February 16, 1887, Thomas Stephenson made his last will wherein he provided, inter alia: "Fifth. I give and bequeath unto my granddaughter Maggie J. Lewis the sum of five thousand ($5,000.00) dollars for her own sole use and benefit and if she is a minor at time of my death it is my will that the said five thousand dollars was inventoried at $12,445, and consisted largely of mortgages and notes; some of which were never collected, and some were collected by a son, who died in the West, insolvent, without having paid over to the executrix the amounts SO received. Mrs. Stephenson may never have paid her granddaughter any moneys expressly to apply on said legacy; but Miss Lewis was 17 years old when testator died, and for 10 years thereafter lived with and was supported by her grandmother, including her board, clothAnd the court ing, college education, etc. below finds upon competent evidence that $2,500 were so expended and should be credited on the legacy. Mrs. Stephenson exhausted the personal estate and left practically nothing. The residuary estate, of which she had the life use under the will, included a farm of 60 acres in Allegheny county, which, subject to such life estate, vested in testator's heirs at law. When she became of age, Miss Lewis and the executrix discussed the question of the legacy and obtained legal advice to the effect that, because of the blending of real and personal estate in said residuary clause of the will, her legacy was a charge upon the farm, and would be paid on sale or partition thereof. Maggie J. Lewis, now Mrs. Teets, the petitioner in this case, inherited and owns one-fourth of the farm, and the balance was inherited and is owned by respondents. This proceeding was brought in 1915, praying that said legacy be decreed a charge upon the above-mentioned farm and payable out of the same. after petitioner became of age; and, notbing being shown to extend the lien as against the heirs beyond the statutory period of 21 years, the land cannot now be charged with the payment of the legacy. "It is very clear, therefore, that if the person claiming payment of such charge or lien is able to show neither a claim or demand of payment made by him on the owner of such real estate, nor a payment upon or an acknowledgment of the existence of such lien or charge by such owner within the statutory period, then the of the release or extinguishment of the demand, act operates to raise a conclusive presumption and declares that it shall 'thereafter be irrecoverable."" Wingett's Appeal, 122 Pa. 486, 493, 15 Atl. 863, 864. [1] After a full hearing, the court below granted the prayer of petitioner as to the $2,500 found to be still unpaid on said legacy, with interest thereon from the death of the executrix. There is no evidence that petitioner, prior to filing her petition in this case, made any claim or demand upon the respondents for the payment of said legacy, or that they made any payment thereon or any declaration or acknowledgment of the existence thereof, except, as we understand the facts, the question of this legacy was mentioned in reference to a proposed partition of the farm a short time before the beginning of this proceeding. [4] It is not necessary to plead the act of Section 7 of the act of April 27, 1855 (P. L. 1855. Wingett's Appeal, supra; De Haven's 369), provides: Estate, 25 Pa. Super. Ct. 507. "In all cases where no payment, claim or demand shall have been made on account of, or for any ground rent, annuity or other charge upon real estate for twenty-one years, or no declaration or acknowledgment of the existence thereof shall have been made within that period by the owner of the premises, subject to such ground rent, annuity, or charge, a release or extinguishment thereof shall be presumed, and such ground rent, annuity or charge shall thereafter be irrecoverablo." Conceding the correctness of the finding of the orphans' court, that one-half of said legacy was never paid, and of the conclusions that, owing to the blending of real and personal estate in said residuary clause, the legacy became a charge upon the land in question, and that petitioner was not barred by the failure of the executrix to properly administer the personal estate and apply the same to the payment of said legacy, yet we are of the opinion that said statute prevents granting the relief sought in this case. [2, 3] By the will the executrix is constituted a trustee in effect to collect and deposit said legacy and use it for petitioner's benefit; and it became a charge upon the land, if ever, at testator's death, and presently demandable. The period of limitations under the act runs from the time the charge becomes due and payable. Eichelberger v. Gitt, 104 Pa. 64. And it was not within the power of Mrs. Stephenson, as life tenant or executrix, to extend or enlarge the lien of said legacy as against respondents' land; and, so far as appears, she never attempted to do so. Her payments or acknowledgments might bind her own interest, but not that of the heirs. To remove the bar of the statute the demand must be made of, or the acknowledgment by, all the owners sought to be affected thereby. See Act of February 26, 1869 (P. L. 3). This petition was not filed until 28 years after testator's death, and until 24 years The acknowledgment must be made by the owner of the premises. Barber v. Lefavour, 176 Pa. 331, 35 Atl. 202. And see Wallace v. Fourth U. P. Church, 152 Pa. 258, 25 Atl. 520. For the reasons above stated, the decree of the court below is reversed, and the petition is dismissed at the cost of the appellee. [Ed. Note. For other cases, see Mandamus, Cent. Dig. § 263.] 2. MANDAMUS 162-MOTION TO QUASH. The lower court may, on motion, quash a writ of alternative mandamus on the ground that a cause of action has not been shown by petition.' Cent. Dig. 88 338-340.] [Ed. Note. For other cases, see Mandamus, 3. CORPORATIONS 294 — MINISTERIAL OFFICERS-REMOVAL-NOTICE AND TRIAL. Ministerial officers of a corporation appointed by its directors are removable at the pleasure of the directors without the assignment of any cause or the giving of any notice or without trial of the grounds of removal. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 1263–1266.] 4. MANDAMUS 162-SUBJECT-MATTER-OFFICER OF CORPORATION. In mandamus to compel the reinstatement of the president of a corporation after his removal the by-laws provided for the removal of any offiby the board of directors, where it appeared that cer at a special meeting of the board on a majority vote, a writ of alternative mandamus was properly quashed. Cent. Dig. §§ 338-340.] Appeal from Court of Common Pleas, Lackawanna County. Mandamus by Louis Spahn against Bielefeld & Spahn Company and others. Mandamus was awarded and was subsequently Argued before MESTREZAT, POTTER, STEWART, MOSCHZISKER, and FRAZER, JJ. W. S. Diehl, W. W. Watson, and Albert L. Watson, all of Scranton, for appellant. Cornelius Comegys, of Scranton, for appellees. MOSCHZISKER, J. On June 17, 1914, the defendant was chartered as a Pennsylvania manufacturing corporation; shortly thereafter, the plaintiff became president of the company, by election of its board of directors. August 16, 1916, the board, by resolution duly passed, discharged him from his office. Thereupon, he applied to the court below for a writ of mandamus to compel. the corporation, its directors and officers, to recognize him as president. An alternative writ issued, but on September 25, 1916, this was quashed and the proceedings dismissed. Plaintiff has appealed. quashed on respondents' motion, and plaintiff | plaintiff, be and is hereby removed from the appeals. Affirmed. office of president * * and that the office be declared vacant." That the motion was duly carried by four of the directors voting in the affirmative, the plaintiff and one other member not voting; that immediately thereafter a motion was duly carried declaring Mr. Stack elected as president of the corporation "to fill the vacancy caused by the removal of Mr. Louis Spahn"; that all this took place against the protest of the plaintiff, who left the meeting when the motion he had been excluded from his office of preswas put for his removal; that from thence on ident and refused recognition as such. Finally, the petitioner averred that, for many reasons, the action of the board of directors in removing him from the office of president mandamus. The defendants filed their mowas unlawful; and he prayed for the writ of tion to quash upon the ground that the petition "failed to set forth in substance a case for mandamus, but that, on the contrary, the said petition does set forth facts and circumstances which deny the right to the remedy sought," since it shows, inter alia, the defendant company to be a private manufacturing corporation, whose "by-laws, adopted by and agreed to by the stockholders, of which the complainant is one," provide that the directors shall have power "to select and elect a president," and "at any regular meeting by a majority vote of all the directors to remove any officer of the corporation." [1] At the threshold of this case we are met with the question of jurisdiction; but this seems to be ruled in favor of the remedy by mandamus in Commonwealth O'Brien v. Gibbons, 196 Pa. 97, 101, 46 Atl. 313, 314, where, speaking by Mr. Justice Mitchell, we said: The petition for the mandamus averred, inter alia, the incorporation of the company; that the plaintiff was chosen by the stockholders as a director, and was subsequently elected by the board of directors as president of the corporation; that the officers and directors named by him as defendants were all duly elected to their several places; that the by-laws of the company, in relation to the powers and duties of the board of directors, provide for their election by the stockholders; and that "stated meetings of the board shall be held on the fourth Monday of January, April, July and October each year"; further, that "the board of directors shall have the right to establish such rules and regulations for the conduct of the business as to them may seem proper," and "shall hold meetings at such time and place "It is very earnestly argued by appellants that as may to them seem necessary or advisa- mandamus will not lie, and that the only remedy is by quo warranto against the person elected to ble"; that, pursuant to the authority thus fill the supposed vacancy. It would be sufficient conferred, the board of directors, at a meet-answer to cite the, precedent of Zulich et al. v. ing held December 16, 1915, resolved "to hold monthly meetings on Wednesday nearest the 15th"; that the by-laws provide, "Officers of the company shall be elected by the board of directors and shall consist of a president, vice president, a secretary and a treasurer ex rel. Bowman, supra, 42 Pa. 83, but the remedy is clear on principle. There is no contest as to the relator's original title to his seat under a valid election, but only as to the legality of his ouster. If this was not valid, he never has been ousted at all, and mandamus is the proper remedy to prevent his further unlawful exclusion." [2] Next, the question arises as to the practice pursued in quashing the writ, but this is sustained in Reese v. Board of Mine Examiners, 248 Pa. 617, 620, 621, 94 Atl. 246, 247, where, on mandamus, we said: "The motion to quash called attention to 'defects in substance,' and was, in effect, an application to reconsider the conclusion that the 'substance of a case' had been shown. Of course, the court had power to entertain such an appeal, and from this aspect the proceedings were regular." [3] When the case is considered on its merits, we see no virtue in any of the contentions of the appellant. In Brindley v. Walker, 221 Pa. 287, 293, 70 Atl. 794, 795, speaking by |