to all cities, and it provides that 'wards in cities may be divided, or new wards therein created, by the court of quarter sessions of the proper county.' When I first read the section, I was disposed to agree with relator's counsel, but a closer examination thereof will show that it does not cover annexed territory; or, in other words, the creation of a new ward out of a new territory. It provides that upon petition of 100 qualified electors, or of councils, praying for 'a division of a ward, or for the erection of a new ward out of parts of two or more wards,' the court shall appoint five commissioners to make report thereon. If the report is favorable 'to such division or creation,' an election shall be held in the 'ward or wards proposed to be divided' and 'if it appear that a majority of the votes * * * are for a division the said court shall thereupon order and decree a division of the said ward or wards and shall number the new wards.' Evidently this section does not contemplate the creation of a ward except by the division of other wards already in existence. It therefore follows that section 2 of the act of 1874 does not apply to the case at bar.

* * *

"Is there any other general legislation applicable? Any legislation applying to all cities? I can find none except the annexation act of April 28, 1903 (P. L. 332), the constitutionality of which we have discussed in this opinion. The only reference in this act to the question of wards is to be found in the sixth section (page 333), and is in these words: "The territory annexed shall, as soon as practicable, be arranged into wards of the city to which it is annexed.' By whom shall the territory be arranged into wards? By the city councils? The act does not say so, nor can that power be inferred from the words of the act.

"The next question is: Is there any second class city legislation under which annexed territory can be created into a ward? The only legislation of this character is the recent act of April 24, 1905 (P. L. 307), authorizing the creation, division, and consolidation of wards in cities of the second class. It would be premature now to discuss this act, as no action has been taken under it looking to the creation of a ward out of the annexed territory. It is useless also to examine any third-class city legislation which may apply and which may have been preserved for cities of the second class by article 20, 1, of the Act of March 7, 1901 (P. L. 47), wherein it is provided that laws relating to cities of the third class shall continue to apply to cities of that class which have passed or may pass into a city of the second class by reason of increase in population, except so far as such laws are supplied by, or are in conflict with, laws relating to cities

of the second class. Nobody has invoked the benefit of such legislation in this case, and I cannot therefore discuss the question.

"The conclusion is plain that the annexed territory known in this case as "Lincoln Heights" can have no ward representation until it becomes a ward. It is not a ward yet. The city councils had no authority to make it into a ward.

"The question of an election district. 'Lincoln Heights' has not yet been constituted into an election district. The Constitution provides (article 8, § 2) that 'townships and wards of cities or boroughs shall form or be divided into election districts * * ⚫ in such manner as the court of quarter sessions may direct.' There is no other way in which an election district can be created, and the Legislature cannot take away this power from the court. There is no order of the court of quarter sessions of Lackawanna county constituting the annexed territory into an election district. It follows, therefore, that no legal election has yet been held in the socalled Twenty-Second Ward of Scranton. There is no ward which the respondent can at present represent and no legal election district in which votes could be cast for him for school controller or for any other office. On both grounds the respondent is out of court. It may be a hardship for the voters residing on Lincoln Heights that they cannot have ward representation although the annexed territory is a part of the city; but the hardship was not created by the court. At no time has the court been applied to for any action except to decree the annexation. Whatever might have been said about the creation of a ward I have no doubt that the annexed territory can be made into an election district.

"It is clear, therefore, that judgment must be entered for the commonwealth upon the demurrer."

Argued before FELL, BROWN, MESTREZAT, POTTER, and STEWART, JJ.

Edward W. Thayer and David J. Davis, for appellant. M. J. Donahoe, T. A. Donahoe, and James J. Powell, for appellee.

PER CURIAM. It is conceded that judgment of ouster was properly entered against the defendant for the reasons that there was no properly constituted ward of the city of Scranton that he could represent as a school controller, and that there was no election district in which votes could be cast for him for this office. Whether the additional reason given by a majority of the court that the act of April 28, 1903 (P. L. 332), is both unconstitutional and void for uncertainty can be sustained, is a question not requiring decision at this time.

The judgment is affirmed.

5

(217 Pa. 398) VITO V. WEST CHESTER, KENNETT & WILMINGTON ELECTRIC RY. CO. (Supreme Court of Pennsylvania. April 1, 1907.)

MASTER AND SERVANT-INJURY TO SERVANTNEGLIGENCE OF FELLOW SERVANT.

Where a workman excavating the roadbed of a railway was injured by the explosion of dynamite caused by the negligence of a co-employé who was helping plaintiff in lighting the fuses, he cannot recover from the railway company employing him.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 486-514.]

Appeal from Court of Common Pleas, Chester County.

Action by Felice Vito against the West Chester, Kennett & Wilmington Electric Railway Company. Judgment of nonsuit, and plaintiff appeals. Affirmed.

At the trial it appeared that at the time of the accident the plaintiff was engaged in excavating the roadbed of defendants' railway. While so engaged, he was injured by an explosion of dynamite. The testimony showed that the accident was caused by the negligent act of one Big Mike in prematurely lighting a short fuse. The court entered a nonsuit, saying: "I cannot see that there is any liability here on the part of the defendant for this accident in any way. If any body was responsible for it other than the plaintiff himself, it was Big Mike, who was not a vice principal, nor a principal. At most, he was foreman, or 'boss,' as he was called, but in this accident he was a co-employé at the time the accident happened, for which the company would not be liable. We therefore direct a nonsuit."

Argued before MITCHELL, C. J., and FELL, MESTREZAT, POTTER, and STEWART, JJ.

W. S. Harris, for appellant.

PER CURIAM. Judgment affirmed on the opinion of the learned judge below on entering the nonsuit.

(217 Pa. 427)

STOUT et al. v. YOUNG. (Supreme Court of Pennsylvania. April 1, 1907.)

1. WILLS-PROBATE-CONCLUSIVENESS.

Where no appeal has been taken from the probate of a will for over five years, a devise of realty thereunder cannot be impeached on the ground that testator was not of age when he made the will.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, §§ 828, 916.]

2. SAME.

Under Act April 22, 1856 (P. L. 523), § 7, after five years from the probate of a will, without caveat or action at law, the probate of the will on appeal therefrom is conclusive of the fact that it is the will of the alleged testator.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, §§ 828, 916.]

Appeal from Court of Common Pleas, Lackawanna County.

Action by John Stout and others against Ann Patterson Young. Judgment for defendant, and plaintiffs appeal. On a question of law reserved. Affirmed.

At the trial the jury returned a verdict for defendant, subject to the question of law reserved, as follows: "That as the will of Daniel Stout was duly probated in the office of the register of wills of Luzerne county in conformity with law, in 1876, and, as no caveat was filed or proceedings of any kind instituted to have the probate set aside, it became conclusive as to the real estate of said Daniel Stout after five years, and cannot now be attacked in this proceeding." Argued before FELL, BROWN, MESTREZAT, POTTER, and STEWART, JJ.

H. W. Mumford, Clarence Ballentine, and W. A. Wilcox, for appellants. A. A. Vosburg, W. I. Hibbs, and Charles W. Dawson, for appellee.

PER CURIAM. The learned trial judge was of opinion that error had been committed in submitting to the jury the question of adverse possession in the defendants and their predecessors in title. Since this was one of two questions of fact submitted, and the verdict may have been based on a finding for the defendants as to it, he entered judgment for the defendants on the question reserved, which was whether after five years the probate of the will became conclusive as to real estate, notwithstanding the want of age of the testator, no proceedings having been instituted to contest it. The conclusion reached by the court on this question, in which we concur, would have warranted a peremptory direction for the defendants. A right verdict had, therefore, been reached irrespective of the finding as to adverse possession, and judgment should have been entered on the verdict instead of on the reserved question.

The action was ejectment, brought in 1905, in which the validity of a will probated in 1876 was attacked on the ground that the testator was not of the age of 21 years at the time of making it. The construction of section 7 of the act of April 22, 1856 (P. L. 533), has been definitively settled. It is not merely a statute of limitations affecting a remedy. It is a provision "for the greater certainty of titles," and establishes a rule of evidence which makes conclusive as to land after the lapse of five years, without caveat or action at law duly pursued, what was before prima facie only. The probate of a will is a judicial act which cannot be collaterally impeached in an action of ejectment. It is conclusive on all persons whether under disabilities or not, unless contested in the manner provided by the act. Wilson v. Gaston, 92 Pa. 207; Cochran v. Young, 104 Pa. 333; McCay v. Clayton, 119 Pa. 133,

12 Atl. 860. The probate is, of course, conclusive only as to matters within the jurisdiction of the register, and not as to the effect of testamentary provisions which depend on matters dehors the record, as the validity of a gift to charities (Hegarty's Appeal, 75 Pa. 503), or the effect of a subsequent marriage of a testatrix (Craft's Estate, 164 Pa. 520, 30 Atl. 493), or the rights of after-born children (Owens v. Haines, 199 Pa. 137, 48 Atl. 859). But the probate of a will unappealed from is conclusive of the fact that it is the will of the alleged testator. To establish this fact the necessary findings were that the will was duly executed, that the testator had sufficient mental capacity, and that he had reached the age of 21 years. Testamentary age is as essential to the establishment of a will as proper execution of the writing and the possession of testamentary capacity. It was involved in the adjudication and was settled by it. The judgment is affirmed.

(217 Pa. 401)

PETERSON v. PHILADELPHIA, B. & W.

R. CO.

(Supreme Court of Pennsylvania. April 1, 1907.)

1. MASTER AND SERVANT-INJURY TO SERVANT-ASSUMPTION OF RISK.

Where plaintiff was employed on a repair train, he assumed the risks involved in stopping at irregular times and places and getting on and off without the facilities expected at regular stations.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 547-554.] 2. SAME-FELLOW SERVANT.

The boss of a repair train is not a vice principal.

Appeal from Court of Common Pleas, Delaware County.

Action by John R. Peterson against the Philadelphia, Baltimore & Washington Railroad Company. From an order refusing to take off a nonsuit, plaintiff appeals. firmed.

Af

Plaintiff was employed on a repair train unloading telegraph poles. Hettle, the boss or foreman of the train, gave a signal to the engineer to start it. The engineer in starting the train did so in such a manner that the plaintiff was thrown and injured. The court entered a compulsory nonsuit, which it subsequently refused to take off.

Argued before MITCHELL, C. J., and FELL, MESTREZAT, POTTER, and ELKIN, JJ.

A. B. Geary and Albert Dutton MacDade, for appellant. J. B. Hannum, for appellee.

PER CURIAM. The very much over-invoked principle of the duty of employers to provide a safe place for employés to work in has no application to this case. Some occupations involve risks and dangers that are inherent, and an employer is not an insurer

against these. The appellant was employed on a repair train, and the very nature of his employment involved the risks of stopping at irregular times and places, getting on and off without the facilities expected at regular stations and the corresponding duty of special care in so doing. There was nothing in the case to show that the place furnished plaintiff to work in was not as safe as the nature of the work permitted. The "boss" or foreman was not a vice principal, but, even if he had been, he was entitled to assume, when he gave the signal to start the train, that the engineer would do so in the proper manner. The case is squarely within Cunningham v. Railroad Co., 66 Atl. 236 (opinion filed at the present term). Judgment affirmed.

(217 Pa. 446)

DRAKE. PENNSYLVANIA COAL CO. (Supreme Court of Pennsylvania. April 1, 1907.)

1. MINES AND MINERALS COAL LEASE-PAYMENT OF ROYALTIES.

Where a coal lease provides no place for payment of royalties, they must be demanded on the premises before forfeiture can be declared for nonpayment.

2. SAME FORFEITURE-AMICABLE EJECTMENT -NOTICE.

A coal lease provided for an amicable ejectment in case of forfeiture, and that judgment might be confessed to the plaintiff by an attorney without a writ of error, appeal, or stay of execution, provided that 30 days' notice of an intent to enter should be first given to the lessee, within which time the rent due and unpaid might be paid. Held, that the 30 days' notice applied only to a judgment by confession, and not to ordinary ejectment by summons.

Appeal from Court of Common Pleas, Lackawanna County.

Action by George K. Drake against the Pennsylvania Coal Company. From an order dismissing exceptions to report of referee, plaintiff appeals. Affirmed.

The following is the opinion of Newcomb, J., of the court below:

"The plaintiff joined with his co-tenants in a lease of certain coal lands to E. A. Coray. The defendant afterwards succeeded to Coray's rights and this action of ejectment was brought by the plaintiff to enforce a forfeiture as to his undivided purpart of the demised premises. The referee found upon sufficient evidence that a cause of forfeiture had occurred, but on the undisputed facts held there could be no recovery, and therefore directed judgment for the defendant. This conclusion was based on three reasons, either of which, if sound, is fatal to the plaintiff's case. They are as follows: (1) No notice was given to defendant of plaintiff's election to declare the lease forfeited; (2) that, even though that notice had been given, plaintiff was bound to give defendant at least 30 days' notice of his intention to sue, and for want of such notice the action could not be maintained; (3) that the unpaid

royalties which give rise to the claim of forfeiture must first be demanded on the premises before a forfeiture can be declared, and for want of such demand the action fails. Upon the first and third propositions we think the learned referee was right, and that is decisive in favor of the judgment rendered. We can add nothing profitably to what is said by him in support of those conclusions.

"While it makes no difference to the disposition of the case, we do not agree with him that 30 days' notice of his intention to sue must be given by the plaintiff. This conclusion of the referee rests upon his construction of a certain clause in the lease which provided a special and summary remedy at plaintiff's option for recovery of possession in case of forfeiture. The remedy so provided was not exclusive, nor was it so considered by the learned referee. It was merely additional to any other remedy which the plaintiff might have. It was stipulated in the lease that in case of forfeiture incurred an amicable action of ejectment for the lands could be filed and judgment therein forthwith confessed to the plaintiffs by any attorney without a writ of error, appeal, or stay of execution, provided that before entering such judgment at least 30 days' notice of the intention to enter it should be given to the lessee, 'within which time the rent due and unpaid may be paid, and the forfeiture avoided.' Giving special weight to this last clause of the stipulation for judgment, the referee says that, unless the plaintiff is held to the same notice of intention to bring ejectment, the object of this notice is defeated. This, he says, is to give an opportunity to pay the rent and avoid the forfeiture. 'It seems to me,' says the referee, 'that the spirit of the agreement requires this notice to be given before any adverse legal proceeding is commenced.' To this it might be answered that the parties did not say so. We are not called upon to resort to the supposed spirit of the agreement to determine its meaning so long as the terms in which the parties expressed themselves are neither obscure nor ambiguous. The opportunity to pay the rent here provided for was to prevent a judgment which once entered would be final and subject to no review except for fraud. An adverse action of ejectment is, and doubtless in the contemplation of the parties was, quite a different thing. The whole ground of controversy, if any there were, would in that case be open to contest. The defendant would have its day in court. If the summary remedy were chosen, the plaintiff himself would dispose of the controversy by a stroke of the pen. It was to prevent such summary and irretrievable dispossession as this that the notice relied upon by the referee was provided. To accomplish the object which the referee had in mind, it was unnecessary to give the lease his construction; for, by the preceding stipulation which prescribed the

terms on which a forfeiture could be declared, a corresponding notice had to be given to the lessee, his agent, or superintendent, or posted on the premises. This was a notice that an installment of rent was due. Thirty days had to elapse after giving this notice before any right to forfeit would accrue. By its terms, then, if the rent were paid in the meantime after such notice, the right to assert a forfeiture would be effectually defeated; or, more accurately, the right would never come into existence. The referee found that this notice was given. The notice on which the learned referee relied concerns only the right to enter judgment under the power of attorney.

"The defendant filed some exceptions, but under the view which we take of the case it is unnecessary to pass upon them. "Exceptions overruled."

Argued before FELL, BROWN, MESTREZAT, POTTER, and STEWART, JJ.

Samuel B. Price, for appellant. Everett Warren, for appellee.

(Court of Appeals of Maryland. May 1, 1907.) TAXATION INHERITANCE TAX-STATUTORY PROVISIONS.

Code Pub. Gen. Laws, art. 81, § 117, provides that all estates passing from any person who may die seised and possessed thereof, being in this state, to any person in trust or otherwise, other than to or for the use of the father, mother, husband, wife, children, and lineal descendants of the grantor, testator, or donor, shall be subject to certain tax. Testator devised the residue of his estate to trustees in trust for his widow during her natural life, and thereafter in trust to the use of such person as Testator's she might appoint by her will. widow, having died, left a will devising the entire residuary estate to her executors in trust to allow her brother-in-law a life estate therein, and thereafter to a home for invalid children. Held, in an action after the death of the widow to recover the collateral inheritance tax on the residuary estate of testator, that it was subject to the collateral inheritance tax to be reckoned on its value as of the death of testator's widow, and not of his own death.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, § 1718.]

Appeal from Superior Court of Baltimore City; Alfred S. Niles, Judge.

Suit by the state against D. K. Este Fisher, surviving trustee under the will of Henry E. Johnston, deceased. From a judgment for plaintiff, defendant appeals. Affirmed. Argued before BRISCOE, BOYD, PEARCE, SCHMUCKER, and BURKE, JJ.

Bernard Carter, for appellant. Bryan, Jr., Atty. Gen., for the State.

Wm. S.

BRISCOE, J. This is a suit by the state of Maryland to recover the collateral inheritance tax, alleged to be due from the estate of the late Henry E. Johnston. The facts are undisputed, and the question for determination rests upon the construction to be given to section 117, art. 81, of the Code of Public General Laws. The substance of the statute is as follows: "All estates * * * passing from any person who may die seized and possessed thereof, being in this state, or any part of such estate or interest therein transferred by deed, will, grant, bargain, gift or sale, made or intended to take effect in possession after the death of the grantor, * * * devisor or donor, to any person or persons, bodies politic,

*

* * *

* * *

in trust or otherwise, other than to or for the use of the father, mother, husband, wife, children and lineal descendants of the granttor, testator, donor, * * shall be subject to a tax of two and a half per centum on every hundred dollars, of the clear value of such estates, money or securities." Mr. Johnston died on the 5th of May, 1884, leaving a large and valuable estate, consisting of real and personal estate. The will was duly admitted to probate in the orphans' court of Baltimore City, and the trustees under the will duly qualified as such. By his will, he gave and devised the entire rest and residue of his estate, real and personal, to certain trustees (Messrs. Josiah L. Johnston, Wm. A. Fisher, W. Graham Bowdoin), in trust for his wife, Harriet Lane Johnston, for and during the term of her natural life, and after the death of his wife "in trust to hold the entire corpus of the residuum of the estate to the use of such person and persons, whether natural or corporations, to whom my wife may give and appoint, by any instrument in the nature of her last will and testament," and "if she should fail to execute a last will and to make such appointment, then, in trust, to hold the corpus of the residuum of the estate, to the use of the Harriet Lane Home for Invalid Children of Baltimore City." On the 11th of May, 1885, upon the settlement of the estate, his executors transferred to the trustees under the will the rest and residue of the personal estate, amounting to $188,395.44. The real property comprising a part of the estate, amounting to $43,000, also passed to the trustees, thus making the total value of the residuum of the estate transferred to the trustees, under the will, the sum of $231,395.44. Mrs. Johnston died on July 3, 1903, leaving a last will and testament, which was duly admitted to probate in the city of Washington, on November 3, 1903. By her will, she executed the power of appointment vested in her by the will of her husband by devising and bequeathing the entire rest and residue of the estate, real and personal, of her husband, to her executors, in trust, to allow her brother-in-law to enjoy a life estate therein, if he so desired, and, as to the rest and residue, to the Harriet Lane Home for In

valid Children of Baltimore City. On the 14th of March, 1904, Mr. Fisher, the surviving trustee, transferred all the residuum of the estate to Mrs. Johnston's executors except the sum of $25,000, retained by him to meet any I claim of the state for the collateral inheritance tax, here in controversy. It is admitted, by the record, and charged in the declaration, that the residuum of Mr. Johnston's estate had increased, until at the time of the death of Mrs. Johnston it amounted to $734,439.36; that Josiah L. Johnston and W. Graham Bowdoin are dead, and the defendant, D. K. Este Fisher, is the surviving trustee; and that no collateral inheritance tax has been paid to the state by the trustees of the estate. The case was tried before the court, without a jury, and, the judgment being in favor of the state, the defendant has appealed.

The declaration in the case contains two counts. The first count charges that the state is entitled to recover a tax, on the value of the rest and residue of the estate, transferred by the executors of Mr. Johnston to the trustees, on the 11th of May, 1885. The second count claims the tax on the rest and residue of the estate, at the date of the death of Mrs. Johnston, on July 3, 1903. It is contended on the part of the appellant: (1) That upon a proper construction of the Maryland statutes, relating to the payment of collateral inheritance tax, in connection with the facts of this case, the state cannot recover any part of the amount claimed in either count in the declaration; (2) that, if the state can recover at all, it can only recover 22 per cent. on the value of the reversionary interest in the rest and residue of the estate, at the time of the death of the testator, Henry E. Johnston, and upon the value of the estate, as then ascertained.

In the case of Tyson et al. v. State, 28 Md. 577, and State v. Dalrymple, Adm'rs, 70 Md. 298, 17 Atl. 82, 3 L. R. A. 372, this court held that such a tax was free from all constitutional objection. In the latter case, it was said, in permitting property within the state, upon the death of its owner, to pass by devise or descent or distribution, the Legislature has seen fit, where strangers or collateral kindred receive it, to exact, as the condition upon which that privilege is granted, the tax in question. And upon the question of the collection of the tax, the court said that ample provision is made for every possible contingency that may arise, whether the decedent be a resident of this state or not, provided the property be located here, if he be a nonresident, or be actually or constructively here, if he be a resident. No estate can escape administration if the law be enforced and when the property passes into the hands of the executor his obligation to pay the tax is fixed, and his bond at once becomes liable therefor.

There can be no doubt, it seems to us, that under section 117 of article 81, above quoted,