cause therefor, he may be decreed guilty of unfaithful administration, so that an action may be brought on his bond. Held, that a claim evidenced by final decree in equity is within the statute as a claim proved according to law. 2. SAME-INSOLVENT ESTATES - FAILURE TO

DECLARE INSOLVENCY-EFFECT.

Where an executor made no attempt to declare the estate insolvent within the statutory period, he was estopped to subsequently assert its insolvency in proceedings by a creditor under Gen. Laws 1896, c. 218, § 27, providing that, if any executor or administrator neglects or refuses to raise money out of the estate or to pay over what he has in his hands to the creditors of the testator, and on citation cannot show reasonable cause therefor, he may be decreed guilty of unfaithful administration, so that an action may be brought on his bond.

Appeal from Probate Court.

Proceedings by Joseph U. Starkweather, as administrator de bonis non of James O. Starkweather, deceased, with the will annexed, against George Fred Williams, as executor of the will of Amey M. Starkweather. Heard on exceptions to a decision of the superior court dismissing an appeal from the probate court. Exceptions sustained.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

Gorman, Egan & Gorman, for appellant. Bassett & Raymond, for appellee.

DUBOIS, J. This is an appeal from the following decree of the probate court of the city of Pawtucket: "The complaint of Joseph U. Starkweather, administrator de bonis non of James O. Starkweather with the will annexed, alleging that George Fred Williams, executor of the last will and testament of Amey M. Starkweather, has neglected and refused to raise any money out of the estate of the said Amey M. Starkweather or to turn over money in his hands as such executor to liquidate a judgment debt due from the said executor to the complainant as the administrator as aforesaid, and that the said execu tor has absolutely failed to perform his duty in that respect, praying that the said execu tor be cited to appear in this court to show cause why he should not be adjudged guilty of unfaithful administration, came on to be heard, the said executor appearing in obedience to a citation issued in compliance with said complaint and prayer, and was argued by counsel; and it appearing upon such hearing that the said complainant as such administrator had recovered (judgment) against the said executor in the Supreme Court within and for the county of Providence on the 2d day of February, A. D. 1900, for the sum of $2,865.09, and that said judgment remains wholly unsatisfied and in full force, although the said executor had in his hands and still has in his hands assets belonging to the estate of the said Amey M. Starkweather applicable to the payment of said debt and sufficient to satisfy the same, has neglected to pay the same or any part thereof, and has, upon such hearing, failed to show sufficient

and reasonable cause for such neglect, upon the consideration thereof it is ordered, adjudged, and decreed that under the statute the said executor is guilty of unfaithful administration of said estate"-which went to the superior court upon the following reasons of appeal: "First. That said Joseph U. Starkweather, administrator as aforesaid, hath no interest in said Amey M. Starkweather's estate. Second. Said Williams hath not been guilty of unfaithful administration of said Amey M. Starkweather's estate. Third. Said decree was entered, by said court, without having the lawful jurisdiction to enter the same."

Jury trial having been waived, the case was heard by one of the justices of the superior court upon proof: That Amey M. Starkweather died on the 11th day of January, 1898. That George Fred Williams was on the 23d day of February, 1898, appointed executor of the last will and testament of said Amey M. Starkweather and qualified as such executor on February 24, 1898. That George Fred Williams on October 5, 1898, filed his inventory in said probate court of Pawtucket, which showed that as such executor he had funds to the amount of $6,255.60 as belonging to the estate of Amey M. Starkweather. That the estate of Amey M. Starkweather has never been represented insolvent, and no account by such executor has been allowed. That the following decree was entered in this court in equity case No. 4,794: "Providence sc. Supreme Court, Appellate Division. Joseph U. Starkweather, Adm'r, v. George Fred Williams, Ex'r, et al. Eq. No. 4,794. The above-entitled cause coming on to be heard at the present session, and it now appearing by the admission of the parties that the following sums have been paid out by the respondent for which this complainant desires credit to be given to said executor, to wit: Aug. 10, 1898, Patt & Davis, $.45; June 21, 1898, S. C. Wilson & Son, $2.05; February 25, 1899, B. F. Smith, $1.50; May 1, 1899, taxes, 1898, $426.23-amounting in the whole to the sum of $430.23. Now, therefore, upon consideration hereof it is ordered, adjudged, and decreed that said complainant recover of the said respondent George Fred Williams as aforesaid from and out of the estate of the said Amey M. Starkweather remaining in his hands as executor said sum of $3,296.32, less said sum of $430.23, to wit: the sum of $2,865.09, and also that the said respondent executor as aforesaid turn over to the said complainant upon his receipt therefor all the articles of household furniture, coming into his hands and possession as such executor of said Amey M. Starkweather, that were contained in the inventory returned by her, the said Amey M. Starkweather, as executrix of James O. Starkweather late of said Pawtucket, deceased. Entered as the decree of court, February 2d, A. D. 1900. By order. Bertram S. Blaisdell, Clerk." That execution was issued

thereon on the 13th day of February, 1900, for the sum of $2,865.09. That said appellant had neglected to pay the same, and failed to show reasonable cause therefor.

The

Said justice thereupon rendered the following decision: "Brown, J. If the petitioner was a creditor of Mrs. Starkweather at the time of her decease, he was bound to present his claim in accordance with the provisions of chapter 215, § 2, of the General Laws of 1896. In the language of that statute, 'No claims other than those presented as aforesaid can be enforced against said estate, but other just claims may be paid by the executor or administrator of solvent estates out of assets in his hands at any time.' The petitioner did not claim to be a creditor. Upon examination of the record in the equity suit in which the decree which forms the basis of his right was entered, it appears that he was there seeking to obtain property which belonged to the estate of James O. Starkweather, and, being in possession of Mrs. Starkweather at the time of her decease, as the life tenant, came into the possession of the appellant as her executor. His prayer in that suit is that by decree of court this property may be 'transferred, paid over, and delivered to the' petitioner. decree entered by the court is that the petitioner recover of the appellant 'from and out of the estate of Mrs. Starkweather, 'remaining in his hands as executor' the sum of $2,865.09. The petitioner insists that by reason of this decree he is now a creditor of the estate of Mrs. Starkweather, and, the amount not being paid, that he is entitled to proceed, under chapter 218, § 27, of the General Laws of 1896, to have the appellant cited before the court and adjudged guilty of unfaithful administration. The sole object of having the appellant so adjudged is that an action may be brought upon his bond. The effect of the statute is that if the executor shall neglect 'to pay over what he has in his hands to the several creditors, * whose claims have been presented and allowed or proved according to law, or shall otherwise fail to perform his duties as such executor,' he may be cited, etc., and adjudged guilty of unfaithful administration, and thereupon an action may be brought upon his bond, etc. In my view of the case, upon a comparison of the language of chapter 218, § 27, with that of chapter 215, § 2, of the General Laws of 1896, the petitioner's claim is one which the appellant may pay if the estate of Mrs. Starkweather is solvent, but is not one which can be enforced against her estate in this form of proceeding. The petitioner's remedy against the appellant, I do not think, is to be found in chapter 218, § 27, and therefore the petition must be denied and dismissed."

To the aforesaid rulings and findings the appellee duly excepted, and the case then came to this court upon the appellee's bill of exception, wherein he claims: "First.

That said rulings and decisions are contrary to law. Second. That said rulings are not supported by the evidence. Third. That said rulings and decisions are not based upon any of the reasons as claimed by the appellant in his reasons of appeal from the ruling of the probate court."

The complaint was based upon Gen. Laws 1896, c. 218, § 27, which reads as follows: "Sec. 27. If any executor or administrator shall neglect or refuse to raise money out of the testate or intestate estate by collecting debts due or by selling the personal estate, or real estate if need be, and has power, or can obtain leave, to sell the same, or shall neglect or refuse to pay over what he has in his hands to the several creditors of the testator or intestate whose claims have been presented and allowed or proved according to law, or shall otherwise fail to perform his duties as such executor or administrator, and, if cited before the probate court, shall fail to show reasonable cause therefor, said court may decree that he is guilty of unfaithful administration; and thereupon an action may be brought upon the bond of such executor or administrator by any such creditor who may have been damnified thereby, although the said period of two years has elapsed." Under this statute it was incumbent upon the appellee to satisfy the court, by a fair preponderance of the evidence, that he is a creditor of the testatrix, whose claim has been proved according to law, and that said appellant has neglected to pay the same out of what he has in his hands. The claim has not been paid, nor has any excuse been offered for its nonpayment, but an attempt is made to attack the validity of the decree of this court, entered February 2, 1900, in equity cause No. 4,794, hereinbefore set forth. By virtue of the decree the relation of debtor and creditor between the executrix of the appellant and the appellee has been established, and by the proceedings in said equity cause the claim has been "proved according to law"; that is, duly, regularly, lawfully, etc. Anderson's Law Dict.

The argument that a claim evidenced by a final decree in equity is not proved according to law is preposterous. It is a refinement of technicality. The words are not used in a technical sense. They do not mean proved in a court of law as contradistinguished from a court of equity. They mean legally proved. It cannot be contended successfully that a claim fully proved and adjudicated in a court of equity has been proved illegally or contrary to law. The matter is res adjudicata and cannot now be brought in question. The decree is not subject to criticism in this collateral matter. Two attempts have been made by bills of review to reach and amend the same, but without sucSee 24 R. I. 512, 53 Atl. 870, and 25 R. I. 77, 54 Atl. 931. This decree has never been modified in any particular. Nor was

cess.

any attempt ever made to disturb it in any manner within the period allowed by law for such purposes, viz., one year from the entry of final decree. As this court well said in Williams v. Starkweather, 24 R. I. 512, 514, 53 Atl. 870: "It is important in equity proceedings, as well as in actions at law, that there should be a time when decrees become fixed and absolutely final. Concurring in the decisions and intimations of this court already referred to, we decide that such time cannot exceed one year from the entry of the original decree. We may add that the rule herein followed has not deprived the complainant in this case of any substantial right. The objections set out were as fully known to him when the decree was entered as they are now, and he could have presented his petition seasonably, as well as to do so after the lapse of so long a time."

The appellant is also estopped from claiming that said estate is insolvent. He made no attempt to declare the same insolvent within the statutory period, and his attempt to attain that result by bill in equity was unsuccessful. See 22 R. I. 501, 48 Atl. 669. Two of the reasons of appeal hereinbefore set forth are insufficient, because the first objection relates to a matter heretofore finally determined by this court, which determination is no longer open to question. The third objection, that said decree was entered by said probate court without having the lawful jurisdiction to enter the same, is also without foundation. The only valid reason of appeal is the second, which raises a question of fact upon which the evidence is entirely in favor of the appellee. The reasons given by the justice of the superior court for his decision are invalid. The first, second, and third depend upon a reopening of the final decree which determined the rights of the parties in this very matter, and which cannot be disturbed, while the fourth is a consequence of the erroneous premises assumed by the court in relation to the matters in question. The exceptions of the appellee must be sustained.

Case remanded to the superior court, with direction to enter a decree confirming the decree of the probate court, and for further proceedings according to law.

(216 Pa. 463)

GIVEN v. SANDS et al. (Supreme Court of Pennsylvania. Jan. 7, 1907.) TRUSTS-CONSTRUCTION.

On the delivery of a deed, the husband of the grantee wrote to the grantor that he (the writer) was to look after the property, and sell it for a price agreed on, whereupon the grantor should receive, "after everything had been equitably satisfied," whatever balance might be due. On a sale in excess of the grantor's debt, the grantor filed a bill for an accounting. The defendants alleged that the gran tor was indebted in another matter, and that the agreement to pay referred to all matters between the parties. The evidence showed that, if the other debt had been contemplated by the

parties, there could have been no balance remaining under any circumstances. Held, that plaintiff was entitled to the balance which he claimed.

Appeal from Court of Common Pleas, Allegheny County.

Bill by William K. Given against J. D. Sands and Sarah E. Sands. Decree for defendants, and plaintiff appeals. Reversed.

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

G. W. Williams, A. J. Edwards, and W. S. Woods, for appellant. William Yost, for appellees.

STEWART, J. William K. Given, plaintiff in the original bill filed in this case, in the spring of 1901 conveyed to Sarah E. Sands certain real estate in the borough of Oakmont. The grantee, with her husband, J. D. Sands, both of whom were made defendants in the bill, sold and conveyed the premises to another, realizing from the sale the sum of $1,143.92, over and above certain indebtedness of William K. Given to Mrs. Sands, which it was admitted was properly payable out of the proceeds of the sale. This balance of $1,143.92 passed from Mrs. Sands into the hands of her husband. The purpose of the bill was to have both declared trustees of plaintiff with respect to it. The defendants filed separate answers to the bill. The facts we have stated were admitted in each answer, and each contained an averment that, while the conveyance from the plaintiff to Mrs. Sands was in trust, whatever balance remained after paying the claim of Mrs. Sands, under the terms of the trust, was to be applied to plaintiff's liability upon certain notes of the Monongahela Textile Company, on which plaintiff was co-indorser with defendant J. D. Sands and one John M. Given, which liability, it was averred, far exceeded the balance remaining, after paying the claim of Mrs. Sands. The position taken in the answer was that the trust had been wholly executed, and defendants had nothing to account for. The defendant J. D. Sands filed a cross-bill, John K. Given being made a party defendant therein, in which the liability of himself, John M. Given, and William K. Given for the obligations of the Monongahela Textile Company were set out specifically, and the relations of said parties as officers and stockholders of said textile company defined. The cross-bill alleged that the textile company had proved insolvent, and that, William K. Given having refused to pay any part of his liability on this indebtedness, Sands and John M. Given had been compelled to pay the entire debt. Sands claimed that, in any event, he was entitled to retain and apply the balance resulting from the sale to the plaintiff's liability on the notes aforesaid. The prayer was for an accounting of the balance of the purchase money, and the sums paid by Given

and the defendants, or either of them, on the obligations of the textile company for which they were severally bound. The answer to this bill did not deny the original liability of the plaintiff on the notes mentioned, but denied present liability therefor, because of what had occurred after the insolvency of the company, and concluded with a prayer that the cross-bill be dismissed. Replications were filed, and upon the issue thus made up the evidence was taken. The findings and conclusions of the court were adverse to the plaintiff in the original bill, resulting in a decree (1) awarding to J. D. Sands the balance remaining of the proceeds of the sale of the real estate, to wit, $1,143.92, to be applied to account of William K. Given's share of the indorsements on the Monongahela Textile Company notes; (2) ordering that William K. Given pay to J. D. Sands the sum of $1,678.87, and to John M. Given the sum of $1.667.22, in settlement of the accounts between them. The action of the court was virtually a dismissal of the plaintiff's bill and the affirmance of the cross-bill. Exceptions were taken to the several findings and conclusions, and this appeal followed.

Whether the cross-bill could be sustained at all depends on how we shall find the facts to be as to the matters averred in the original bill. If the contention of the plaintiff in that bill be correct, that the real estate was conveyed to Mrs. Sands on the trust that, upon the sale of it, she would reimburse herself for the money she had advanced, and if this was all of the trust, it would follow that the affirmative relief asked for in the cross-bill had no relation to the subject-matter of the original bill, did not grow out of it, and therefore could not be considered. The real inquiry must be as to what the terms of the trust embraced. The deed to Mrs. Sands was delivered to J. D. Sands, who throughout the whole transaction, down to the making of the sale, acted for his wife. The terms of the trust were defined, or sought to be defined, in a certain letter written by Sands, addressed to William K. Given, immediately upon the delivery of the deed. This letter reads as follows: "I am in receipt from Mr. Frazer, of Morgantown, of a deed to Mrs. Sarah E. Sands from you. I understand by this that I am to assume the note in bank and look after the property and pay the taxes and keep up repairs and collect the rents, and if I can sell it for a price agreed upon by you, after everything has been equitably satisfied, you are to receive whatever balance there may be. Of course, it is understood that out of the rents the interest on mortgage is to be paid. If this is the understanding, you will kindly notify the tenant, so that I may be able to arrange with him and have the rent paid up promptly. I will try to so handle it that there may not be any sacrifice or loss to you." Testimony was admitted to explain what seemed to the court an ambiguity in the expression, "after every

thing has been equitably satisfied, you are to receive whatever balance there may be." This testimony resulted in little, if any, advantage to either side. "The testimony admitted to explain these words," says the learned judge in his conclusion, "was conflicting. W. K. Given testified they referred only to matters connected with the property and the note indorsed by his father and held by the Monongahela National Bank, while Sands testified they were intended to include the indebtedness incurred by the joint indorsements of the textile company's notes, as well as the matters directly connected with the property." While it is true that the evidence was conflicting, as to what occurred in the interview between the plaintiff and Sands, when the conveyance to Mrs. Sands was discussed, we are of opinion that the testimony of the plaintiff had the better support; but we need not go into this, for the reason that what immediately followed in the learned judge's finding makes it evident that his conclusion was uninfluenced by the oral testimony. He proceeds: "Under the circumstances, the letter should receive a liberal construction a construction that would be equitable between the parties. Considering the relationship existing between the parties, the fact that Mr. Sands was an indorser on the note of William K. Given held by the Monongahela National Bank, and also the joint liability of each of the textile company's notes, we think the words 'after everything has been equitably satisfied' should be interpreted 'after all things or all matters have been equitably satisfied.' Such interpretation certainly would be equitable, at least as between these parties. Each is both morally and legally bound to discharge his proportionate share of the textile company's obligations. No reason has been shown why the others should not make good the overpayment."

We are compelled to dissent from the view here expressed. In the first place, the note referred to in the letter being admittedly the note of the plaintiff, on which plaintiff's father and J. D. Sands were indorsers, and which had been afterwards lifted by Mrs. Sands, the letter defining the trust, standing by itself, is clear of all ambiguity. It can be made ambiguous only by resorting to evidence dehors. The letter first denotes the trust property (the premises conveyed); then defines the duty and obligation of the trustee in connection therewith (to assume the note referred to, look after the property, pay the taxes, keep up repairs, collect the rents, and upon the sale of the property, after everything has been equitably satisfied, to pay over to plaintiff whatever balance there might be). If there was nothing in the trust as expressed to which the word "everything" could properly relate, it might be urged with at least some show of reason that the instrument was obscure; but, with the word standing in proper and expressive relation to what precedes

it, its meaning is too obvious to be speculated upon, certainly too obvious to admit of the implication that it stands for something not only not expressed in the instrument, but for something the existence of which is not even suggested in the instrument itself. Without explanation other than can be derived from the letter, the equitable satisfaction referred to must be held to have regard to those matters which the letter expressly provides for. When it is considered what Sands was to do in connection with the real estate, the amounts he was to receive therefrom, and the amounts he was to expend in connection therewith, the period during which his control might continue, and the compensation he might possibly claim, the necessity for a settlement at the conclusion embracing all these matters was too obvious to have escaped the attention of the parties. They wanted this settlement to be made on an equitable basis, and they provided for it. Such reference being at least reasonable and adequate to give force and effect to the instrument as written, there can be no excuse for resorting to extrinsic evidence. Without such evidence, plaintiff's liability for the indebtedness of the textile company would have been undiscoverable in this case; but, with this liability introduced into the case as a fact to be considered in construing the letter, the inquiry is simply widened without any advantage to the defendant. Before he could hope for a construction that would make the clause under consideration refer to and include the liability that was joint with himself and John M. Given, he would have to explain why, in a paper written by himself, intended to express the terms of the trust, he makes specific mention of a certain other individual liability of the plaintiff for $2,000, for which he (Sands) was bound as indorser, with another, and which was to be secured, and omits any specific reference to the far greater liability which was his own as well, and which he now says was also to be secured.

Again, the paper evidently contemplated a balance remaining after the purpose of the trust should be accomplished. This balance amounts to $1,143.92. If the conveyance was to secure as well the indebtedness on account of the textile company, it must have been manifest from the beginning that there could under no circumstance be any balance remaining. Why such care to make specific provision for the payment of the balance which in no likelihood could result, and leave not only unmentioned, but unreferred to in any such way as would identify it and bring it within the terms expressed, the indebtedness which, as it now appears, is sufficient to absorb it four times over? Whether we interpret the paper from what is within its four corners, or in the light of the situation of the parties with respect to its subject and object, or read it in the light of the testimony, we can come to but one conclusion in

regard to its true meaning, and that is adverse to the defendant's claim. When this money passed into the defendant's hands, it was impressed with the trust which the defendant fully understood. He made himself a trustee with respect to it. His wife stood in that relation from the beginning. Neither had any right to apply the fund in any other way than in accordance with the terms of the trust. It now belongs to the plaintiff.

The case before us presents but one phase of the dispute between these parties, and our determination has regard to this one phase alone. Whether it is calculated to promote or prevent a just settlement in the end of the whole, we cannot tell. We take the case as it is presented. Applying to its facts the law, and interpreting the writing according to settled rules of construction, no other conclusion than that we have indicated is possible.

The decree of the court below is reversed, and it is now ordered, adjudged, and decreed that Sarah E. Sands and J. D. Sands pay to the said William K. Given, plaintiff, the sum of $1,143.92, with interest thereon from October 11, 1904, and pay the costs of this proceeding.

(216 Pa. 564)

ALLEGHENY COUNTY LIGHT CO. v.
BOOTH et al.

(Supreme Court of Pennsylvania. Jan. 7, 1907.) 1. ELECTRICITY-LIGHTING COMPANIES-USE OF STREETS.

A company was incorporated under the act of April 29, 1874 (P. L. 73), to manufacture light, and received in 1881 from a city the right to erect poles and wires to conduct electricity for lighting purposes on the streets of a city from time to time as necessary. The company thereafter surrendered its original charter, and under Act May 8, 1889 (P. L. 136), took out a charter for the purpose of supplying light and heat and power by electricity. Held, that the company was not required to obtain a renewal of municipal consent, but could lay its conduits under the sidewalks under the original ordinance.

2. SAME-CHANGE OF SYSTEM.

Act May 8, 1889 (P. L. 136), providing for the incorporation of companies for the supplying of light, heat, and power by electricity, authorizes a change of system from poles and wires to conduits by a provision giving the right "to alter, inspect and repair its system of distribution."

3. SAME-CONDUITS UNDER SIDEWALKS.

An electric light company having the right to use the streets of a city can lay its conduits under the sidewalks; they being parts of the streets.

4. SAME REMOVAL OF CONDUITS-LACHES.

Where an electric light company changes from the pole to the conduit system, and the city makes no complaint of the new construction, and no complaint is made by individuals for more than six years, equity will not decree the removal of the conduit.

Appeal from Court of Common Pleas, Allegheny County.

Bill by the Allegheny County Light Company against Walter W. Booth and others.