The bill alleged that "the defendant, in the use or working of its railroad at or near the crossing, did for a short period, in accordance with the terms of said agreement, bring all its trains and engines to a full stop two hundred feet from the point of crossing, and did give to all the trains and engines of the plaintiff priority of passage over all its trains and engines, but the said defendant on, to-wit, the

Bill filed by the Cornwall Railroad Com- | first part, or party of the second part, or their pany against the Cornwall & Lebanon Rail- successors, shall at any time determine to add road Company, to enforce the performance of another track, or other tracks, to the said rethe following agreement: "Agreement made spective railroads, the said crossing shall not this fourth day of December, A. D. 1886, be- prevent their doing so, and all expense intween the Cornwall Railroad Company, of the curred in consequence of the existence of the first part, and the Cornwall and Lebanon said crossing shall be paid by the party putRailroad Company, of the second part: The ting down said additional track or tracks. In Cornwall and Lebanon Railroad Company, testimony whereof the said parties have hereparty of the second part, has carried its rail-unto set their corporate seals, the day and road across the Cornwall Railroad at grade year first above written," etc. at Cornwall, in the county of Lebanon, and state of Pennsylvania, and it is hereby, for a valuable consideration, agreed by and between the parties hereto that the said crossing shall be maintained under the following conditions First. The said crossing shall be kept in good condition, and the expense of repairing and renewing the same, or any part thereof, shall be borne by the party of the second part. The chief engineer of the day of May, 1887, and on divers party of the first part, or his duly-authorized days before and since that day, did and does agent, shall have the right to say when, and now carry its trains and engines across said in what manner, and to what extent repairs crossing without bringing them to a full or renewals shall be made; and may, at his stop, when approaching the same, as required option, have the said repairs and renewals by said agreement, and now has ordered its done at the expense of the said party of the employés to give priority of passage only to second part, and in such case the party of the such trains and engines of the plaintiff as second part shall pay to the party of the first are of the same class as the trains and enpart the expense thus incurred. Second. gines of the defendant approaching the crossThe party of the second part shall erect and ing. And, further, that the defendant, conmaintain a signal tower at or near said cross-trary to its agreement, on, to-wit, the 13th ing, provided with suitable signal apparatus, day of May, 1887, and on divers days since, and shall keep a competent and careful watch- did carry certain of its south-bound trains man, or more, if necessary, there at all times, over the crossing without bringing them to whose duty it shall be to guard the said cross- a full stop except at its station at Cornwall, ing by proper signals. The first cost and ex- a distance of at least eight hundred and fifty pense of erecting and equipping the said feet from the point of crossing, and did carry watch tower and signals, and all subsequent certain other of its south-bound trains over expenses of maintaining the tower and its the crossing without bringing them to a full equipments in good condition, shall be borne stop within a distance of fourteen hundred by the party of the second part. The wages feet from the same, and on, to-wit, the of the watchman at the signal tower shall be 13th day of May, 1887, and on divers days paid by the party of the second part, and the since, did carry its north-bound trains over said party of the second part shall be respon- the crossing without bringing them to a full sible for his acts or omissions. Third. If stop within four hundred feet from the same. the site for the signal tower shall occupy any (5) That such violation by the defendant of of the roadway of the said railroad of the said the above terms of the agreement, in the use party of the first part, the damages for such or working of its railroad at or near the occupation shall be assessed according to law, crossing, if continued, will greatly endanger unless the same shall be agreed upon by the life, and may occasion serious damage to parties, and nothing herein contained shall property. Wherefore the plaintiff respectbe construed as a release or waiver of the fully prays: (1) Equitable relief; (2) that the claim for such damages. Fourth. In the use defendant, and all persons acting under it, or working of the railroads of the parties or by its authority or direction, may be enhereto at or near the point of crossing, all joined preliminarily until hearing, and pertrains, engines, or cars of the party of the petually thereafter, from violating the terms second part shall come to a full stop at a dis- of its agreement as set forth in the third partance of at least two hundred feet from the agraph of this bill, and particularly from repoint of crossing, and shall not proceed until fusing or neglecting when approaching the the proper signal shall have been given by crossing mentioned in the second paragraph the watchman in charge. All engines and of this bill to bring all its trains and engines trains of the party of the first part shall have to a full stop two hundred feet from the priority of passage over the trains and en-point of crossing, and from refusing or neggines of the party of the second part; but no unnecessary detention shall be caused to the trains of either of the parties hereto, nor shall said crossing be blocked by either of the said parties. Fifth. In case the party of the

lecting to give all trains and engines of the plaintiff, of whatsoever class, when approaching the crossing, priority of passage over the trains and engines of the defendant."

On exceptions to the master's report, the

All

Cornwall & Lebanon Railroad Company, its officers, agents, and workmen, are hereby enjoined from using the grade crossing over the Cornwall Railroad, at Cornwall, Pa., in any other than the following manner: trains and engines of the plaintiff are to be given priority of passage over all trains and engines of the defendant, without regard to class. All south-bound trains of the defendant are to come to a full stop between two hundred and three hundred feet north of said crossing, and all its north-bound trains are to come to a full stop between two hundred and three hundred feet south of said crossing, and in neither case to proceed to cross without first receiving the proper signal from the watchman on duty at said crossing. Second. The costs of this proceeding to be

following opinion and decree were rendered | 7 Atl. Rep. 799: Equitable jurisdiction by the court below: "Under the act of 1871, does not depend on the want of a common(P. L. 1361,) courts of equity are required to law remedy; for, while there may be such a decide whether one railroad shall be allowed remedy, it may be inadequate to meet all the to cross another at grade. If such crossing requirements of a given case, or to effect is permitted, it is in most cases a necessary complete justice between the contending incident of the decision that the court should parties. Hence the exercise of chancery also lay down the rules to govern its use, as powers must often depend on the sound diswas done in the proceeding reported in 103 cretion of the court. * * * So a bill Pa. St. 623, (Railway Co.'s Appeal.) In the may be sustained solely on the ground that it case before us, the parties themselves have is the most convenient remedy.' Neither is done both these things by agreement; they it now material to inquire whether the plainhave allowed a crossing at grade, and they tiff has vexatiously used the crossing, either have adopted a set of rules for its use. The before or since the filing of the bill. Under defendant, however, finds it burdensome to the pleadings no decree against the plaintiff observe strictly all the terms of its contract, on this account could be made in this proand in effect asks us to revise it in two par- ceeding, and we do not think the doctrine of ticulars: First. By giving priority of pas-clean hands' can be strictly applied where sage to its passenger trains over the freight the safety of the public is itself a sufficient trains of the plaintiff, although the agree-ground for action by the court. We therement provides that all engines and trains of fore dismiss the exceptions, and direct the the [plaintiff] shall have priority of passage following decree to be entered: First. The over the trains and engines of the [defendant;]' and, second, by practically striking out that part of clause 4 which reads as follows: In the use or working of the railroads of the parties hereto at or near the point of crossing, all trains, engines, or cars of the [defendant] shall come to a full stop at a distance of at least 200 feet from the point of crossing, and shall not proceed until the proper signal shall have been given by the watchman in charge.' In our opinion, we have no authority to make either change. Both provisions tend to promote the safe carriage of persons and property over the crossing in question; no danger to the public is threatened by the enforcement of either, and, since no ground to justify our interference with the contract has been shown, the defendant must be held to its voluntary agree-paid by the defendant." ment, although its obligation may now be found inconvenient, and may not be such as the court would have thought it necessary to impose. For this reason many of the authorities cited by the defendant as to the con- GREEN, J. The litigant parties to this siderations which sometimes influence a chan-contention undertook, wisely, to settle the cellor to refuse an injunction-as, for example, the greater inconvenience of the decree to the party sought to be enjoined-do not now apply; and that portion of the testimony which refers to the custom of railroads, the probable inconvenience to the defendant of keeping its agreement, the safety and use of crossings elsewhere, and the safety of the present method of using this crossing, is not relevant. We agree with the master's construction of the disputed clause, and must prevent the defendant from operating its road in violation thereof. It has been suggested that this bill cannot be sustained, because no harm has yet been done; but this does not seem to need much discussion. The provisions which are being disregarded by the defendant are intended to prevent the doing of harm, and the public interest in the safety of the crossing is alone sufficient to require us to exercise jurisdiction. As was said in Electric Co.'s Appeal, 114 Pa. St. 585,

Grant Weidman and John G. Johnson, for appellant. Howard C. Shirk and Wayne MacVeagh, for appellee.

terms upon which the crossing of their tracks should be conducted, by an agreement which seems to us to be extremely sensible, plain, and simple. The only controversy that has arisen is upon the practical meaning of the fourth clause of the contract. It is in these words: "Fourth. In the use or working of the railroads of the parties hereto at or near the point of crossing, all trains, engines, or cars of the party of the second part shall come to a full stop at a distance of at least two hundred feet from the point of crossing, and shall not proceed until the proper signal shall have been given by the watchman in charge. All engines and trains of the party of the first part shall have priority of passage over the trains and engines of the party of the second part; but no unnecessary detention shall be caused to the trains of either of the parties hereto, nor shall said crossings be blocked by either of the said parties." The appellant contends that the agreement gave the

right of way to the trains of the appellee over | feet from the crossing, and not far away those of the appellant only when they were from that as the outside limit. He found as of the same class. After a most attentive a fact that the appellant stopped its southconsideration of the appellant's argument in bound trains at a distance of 800 to 900 support of this proposition, we find that we feet on the north side of the crossing, and he cannot read the agreement in that way. The held that this was too far off, and was not in words are: "All engines and trains of the accordance with either the letter or spirit of party of the first part shall have priority of the agreement. He found that the crossing passage over the trains and engines of the was a dangerous one, on account of the manparty of the second part." There is no am- ner in which the appellant's track crossed biguity in this language. Priority of passage the appellee's track, and the conformation of is given to all engines and trains of the first the ground, being a high bluff, east or northparty over the trains and engines of the sec- east of the crossing, which obstructed the ond party. The words are entirely generic, view of engineers coming from the south and make no distinction of trains and engines from trains and engines coming from the into classes. It would be necessary to go north, until the trains and engines are very outside of the agreement, and ascertain by near the crossing. He also found that the parol testimony the fact that there are differ- railroads of both parties approach the crossent classes of trains, such as passenger, ing from the south on heavy grades, and the freight, gravel, and construction, or what Cornwall road approaches the crossing from other trains, and then to go still further, and the south and north in a curve above the avascertain, also by parol, which of these were erage curvature as generally found in railsubject to the priority of any and which oth-roads. He also finds that the safety of the ers, if the appellant's contention is sustained. operation of the crossing depends almost enBut what warrant is there for this? The tirely upon the reliability and cautiousness helping of ambiguity on the application of an uncertain description to a subject-matter are recognized occasions for such resort, but here there is neither. The trains and engines of the first party are awarded priority, not because they are of a certain class, but because, and only because, they are the trains and engines of the first party, and the "trains and engines" of the second party are expressly subjected to this priority, without even a hint that there is to be any kind of classification of either. Of course, we can well understand that there might be very good reasons for limiting the exercise of the right to trains and engines of similar classes as against each other, but the difficulty is the agreement not only does not say so, but it does not contain features which authorize the courts to give it such interpretation. If the parties had so intended, it would have been very easy, indeed, for them to say so. The fact that they have not done this is satisfactory evidence that they did not so intend.

The appellant further argues that a full stop at any point more than 200 feet from the crossing was sufficient, provided it was made at one sufficiently near the crossing to permit the watchman to give the proper signals. As an abstract proposition this is doubtless true, but its purpose is to repeat the ruling of the master and court below, which directed that full stops be made by all approaching trains between 200 and 300 feet both north and south of the crossing. There is, of course, no legal necessity, from the mere language of the agreement, requiring the furthest limit to be fixed at 300 feet from the crossing. The master so fixed it, partly because the appellant had, from May 7 to May 13, 1887, stopped all its trains at a distance of about 300 feet from the crossing on both the north and south sides, and partly because his interpretation of the agreement was that it meant that the stops should be at least 200

of the watchman placed there to protect and guard approaching trains and engines. Influenced by these considerations, and by the further thought that a far-off stoppage would be less conducive to safety than one nearer by, he fixed the place of stoppage at any point between 200 and 300 feet distant from the crossing on both sides. If there were anything arbitrary and unreasonable in thus fixing the maximum distance at 300 feet, or if it were made clear to us that such a maximum works oppressively upon the appellant, and that a moderate enlargement of the distance, say to 400 feet, would relieve the appellant from the hardships, and would not increase the danger to the public, we would cheerfully direct such increase in the maximum distance. But the case of the appellant, as we understand it, is presented to us on the proposition that its trains on the north regularly stop at a station which is some 800 or 900 feet distant, and the appellant considers that distance sufficiently near to avoid the necessity of another stoppage. The master, however, has found differently on this subject, and we are not convinced that he is in error in that regard. On the contrary, his reasons for fixing a nearer point as the maximum distance seem to us quite convincing in favor of his conclusion. He had far better opportunities for determining this than are. possible to us, and we do not feel justified in changing the distance as fixed by him. There is no question of law involved in this matter. It is only a question of a sound discretion, regard being had to the public safety on the one hand, and the convenience of the crossing road on the other.

Counsel have not discussed this case on its facts, and we would therefore be justified in holding that the conclusions of fact reported by the master have not been impeached, and must for that reason be sus

birth to a child who is now living, and that the settlor or donor, Elihu B. Washburn, died without having in any manner exercised the power of revocation reserved in the deed of trust.

tained, especially as they have been affirmed | the income and dividends on said bonds to by the court. But the writer has looked Marie Washburn Fowler, (appellant,) *** into the testimony for his own satisfaction, and should the said Marie Washburn Fowler and finds that the master's conclusions of die, the said trust herein declared shall inure fact are sustained by abundant testimony. to the benefit of her heirs; but if she have Witnesses were examined, who testified to a no children the same shall revert to my esnumber of occasions when disastrous collis-tate." There was a further direction to add ions at the crossing were narrowly escaped. $50 per year out of the income to the princiFull explanations were given by intelligent pal. It also appeared that since the execuwitnesses of their reasons for pronouncing tion of this paper the said Marie has given the crossing a dangerous one, and describing the precautions that ought to be taken to make it reasonably safe. As to the jurisdiction of equity in cases like this it cannot be doubted. It has been conferred by statute, and most fully recognized and affirmed by the decisions of this court. Railway Co.'s Appeal, 103 Pa. St. 623; Railroad Co. v. Railroad Co., 77 Pa. St. 173. Upon the facts found by the master, and affirmed by the court, a sufficient case was made out for equitable intervention. The enforcement of such a contract as the one made between these parties can only be secured by means of a decree in equity. An action at law for breach of its terms would be of no avail. It would not be possible to represent the consequences of a breach by money damages, and a literal performance of its stipulations is essential, not only in the interests of the contracting parties, but also in the interest of the traveling public. We know of no reason for interfering with the disposition of the costs as made by the court below. Decree affirmed, and appeal dismissed, at the cost of the appellant.

(125 Pa. St. 388)

Appeal of FoWLER et ux. (Supreme Court of Pennsylvania. April 8, 1889.)

TRUSTS-CONFLICT OF LAWS.

1. Where a deed of trust directs the trustee to pay over the income and dividends on certain corporation bonds to M., and provides that "should the said M. die, the said trust herein declared shall inure to the benefit of her heirs, but if she have no children the same shall revert to my estate," the estate of M. is merely an equitable estate for life, and on the birth of issue she is not entitled to take the corpus of the trust-estate, freed from the

trust.

The

The question is whether the said Marie W. Fowler is entitled to the corpus of the trustestate, consisting only of corporation bonds, freed and discharged from this trust. court below decided that she was not, and in this we see no error. The estate of Mrs. Fowler is merely an equitable estate for life, which did not become absolute by the birth of issue, and which is not enlarged by the remainder to her heirs. It is true, the income is not expressly given to her for life,— that is, the words "for life" are not used in the deed of trust,-but such is the necessary implication from the language employed. The meaning of the word "heirs" is qualified by the use of the word "children," which immediately follows. We have there a gift to Marie Washburn Fowler of the income for life, with remainder to her children, if any, and in default of children the gift is to revert to the estate of the grantor. We do not think there is any analogy between Mrs. Fowler's estate and an estate upon condition at common law before the statute de donis, whereby the birth of issue fulfills the condition and renders the estate indefeasible.

The words "should Marie die" evidently mean "when Marie dies," as her death was a certain event, and the words "if she have no children" evidently refer to children at the time of her death. Cote v. Von Bonnhorst, 41 Pa. St. 243. Nor do we think the direction to accumulate is invalid under the act of 1853. The act does not apply. The settlor was a citizen of Illinois, and died there; the deed of trust was made there; the securities are those of foreign corporations; and Mrs. Fowler is a citizen of Colorado. I do not understand it to be denied that the trust is valid by the law of the state where it was made or the state where it is enjoyed; and the mere fact that the trustee happens to be Appeal from court of common pleas, Phil-a Pennsylvania corporation cannot invalidate adelphia county.

2. The settlor was a citizen of another state. The deed of trust was made there. The bonds were those of foreign corporations, and M. was also a non-resident. Held that, the deed being valid by the law of the state where made, and where it was enjoyed, a direction to accumulate would not render the deed invalid under act Pa. 1855, although the trustee was a domestic corpo

ration.

Bill filed by A. H. Fowler and Marie Washburn Fowler against the Fidelity Insurance, Trust & Safe-Deposit Company. The bill was dismissed, and plaintiffs appeal. Richard C. Dale and Samuel Dickson, for appellants. J. M. & W. P. Gest, for appellee.

PAXSON, C. J. By the terms of this deed of trust the trustee is required to "pay over

the trust. The act of 1853 was only intended to apply to our own citizens, and a trust intended to take effect beyond our own territory cannot be affected by it. Authorities upon this point are not abundant, at least they have been sparingly cited. We may refer, however, to Attorney General v. Stewart, 2 Mer. 161; Curtis v. Hutton, 14 Ves. 537: Hill, Trustees, 457; Draper v. College, 57 How. Pr. 269; Chamberlain v. Chamberlain, 43 N. Y. 433; Crum v. Bliss, 47 Conn.

592. The case is clear upon principle. The decree is affirmed, and the appeal dismissed at the costs of the appellants.

(125 Pa. St. 295)

KICHLINE v. LOBACH. (Supreme Court of Pennsylvania. April 8, 1889.)

BONA FIDE PURCHASERS-EVIDENCE. In trespass against a constable for selling property alleged to be plaintiff's, on execution against a third person, it appeared that the property had formerly belonged to such third person, and that he had sold it to another, who sold it to plaintiff. Held, that evidence was admissible to show that plaintiff knew at the time of purchasing the property that the sale to his vendor by the former owner was fraudulent.

Error to court of common pleas, Northampton county.

Trespass by William S. Lobach against John Kichline, constable. Judgment for plaintiff, and defendant brings error.

Robt. L. Cope, for plaintiff in error. E. Doster, for defendant in error.

W.

upon the record. The only question is as to the existence of actual fraud. Was the sale by Mertz to Fenner fair or fraudulent? If fraudulent, was Lobach party to it, or cognizant of it, at the time of his purchase? If the sale by Mertz to Fenner was not made with intent to hinder, delay, or defraud creditors, but was a bona fide and a fair sale, for a valuable consideration, then certainly Lobach is entitled to recover in this case, for his title was derived from Fenner; and, although Mertz was indebted, Fenner would not be affected by a fraudulent intent on the part of Mertz, of which he had no notice. Reehling v. Byers, 94 Pa. St. 316; Scott v. Heilager, 14 Pa. St. 238. So, also, if the sale by Mertz to Fenner was in fact fraudulent, the intention being to hinder, delay, and defraud the creditors of Mertz, yet if Lobach was innocent, and ignorant of the fraud, he would be entitled to recover; for, as a purchaser without notice, his title would be protected, unless there were circumstances which should have put him as a reasonably prudent man upon inquiry, in which case he would be charged with the knowledge of such facts as inquiry would have disclosed.

been admitted. The pivotal and most important question involved in the case was the good or bad faith of Lobach, and while Lobach cannot be held for the fraudulent char

CLARK, J. This is an action of trespass, brought by William S. Lobach against John Kichline, a constable, for seizing and selling, on an execution against one John Mertz, a Applying these principles to the case now certain carriage, or piano-box wagon, claimed under consideration, it is plain that the first to be the property of the plaintiff. The car- subject of inquiry was as to the nature of the riage, it is admitted, originally belonged to transaction between Mertz and Fenner, and Mertz, but the plaintiff's contention is that we cannot see why the offer embraced in the Mertz sold it to William Fenner, who after-second assignment of error should not have wards, and some time prior to the levy, sold it to William S. Lobach. The carriage from the first and until the constable's seizure was in the custody of Jacob Hoffman, who had it in his warehouse in Bethlehem on storage,acter of the transaction between Mertz and as a bailee. Fenner bought the carriage on Fenner, if he knew nothing of it, or was not the 30th August, 1886, giving his note to put upon inquiry concerning it, yet it was Mertz for $100, the price agreed upon; and proposed to show not only that Mertz was on the next morning Hoffman would appear pursued by his creditors, especially by Meyer, to have been notified of the sale, and that the that he had been arrested for fraud, etc., but carriage belonged to Fenner. On the even- that Fenner or Mertz went to Lobach, and ing of the same day (31st August) Fenner induced him to advance the money on this sold the carriage to Lobach for $100, the carriage, and to pay Fenner the amount of same price he had agreed to pay for it, and his note; that the note was paid and surrenon receipt of the money, or within a day ordered to Fenner; that Lobach was cognizant two afterwards, lifted his note from Mertz. of these facts; and, generally, that there was After Fenner sold to Lobach, Fenner says a conspiracy between the three persons he notified Hoffman of the fact, and told him named to defraud Myers. The offer was in if Lobach came to give him the carriage, as some respects inaccurate, and somewhat genit now belonged to him. Kichline, the con- eral in terms but as it was not objected to stable, made his levy on the 10th September, on that ground, and the court seems to have 1886, upon an execution in his hands in fa- understood its import, we think it should vor of George D. Meyer against John Mertz. have been received. "The plaintiff's right He removed the carriage from Hoffman's to recover in this action," says the learned warerooms to the Washington Hotel, when judge, “depends entirely upon whether the on the 8th October following he sold it at sale from Fenner to Lobach, the plaintiff, public sale, to Theodore F Lowall, for $75. was made in good faith, no matter whether The whole question turned upon the bona the sale from Mertz to Fenner was in good fides of the sale from Mertz to Fenner, and faith or bad faith." The first part of this upon the bona fides of William S. Lobach. | statement of the law, if properly understood, Did he purchase the carriage in good faith, is undoubtedly correct; for if the sale from and upon a valuable consideration? Hoff- Mertz to Fenner was fraudulent, and Lobach man's engagement to hold the possession for knew it, then the sale from Fenner to Lothe purchaser, it is conceded, would fill the bach could not have been made in good faith. requirements of the law in respect of deliv- This made Lobach party to the fraud. But ery, and no question of legal fraud is raised the expression that it was "no matter wheth

་