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the property is vested in trustees for the benefit of the ^ministerial charge, " saoh
a trust being an active one.

Appeal from court of common pleas, Northumberland county.

Bill in equity by H. B. Latshaw, Isaac lieitz, and John Tressler, trust^ies
of St. Peter's Church, against Daniel W. Shaffer, trustee of David's Church
and congregation; John Hetrick, trustee of Himmers Church and congre-
gation; William A. Shaffer, trustee of St. Paul's Church and eongregation,
and Samuel Long, trustee of Emmanuel's Church and congregation ; which
churches, together with the complainant church, compose the -^fohanoy Luth-
eran Ministeiial Charge, — praying for a commission of partition of real estate
held in common, and used as a place of residence for the minister in charge



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Pa.] APPEAL OS LATBHAW. 677

of the charches. The hill was dismissed on the lepott of a Piaster, and the
complainants appeal.

S. P. WolfierUmt Geo. Hilh and J. Nevin HUh for appellants. S. B. Boyeri
for appellees.

Gordon, G. J. While it may he admitted that partition is an Incident of
tenancies in common, a right which vests in the several tenants by virtue of
the title by which they hold, yet, like every other mere legal right of which
persons may be possessed, it may be waived by the ooiitrHct of the parties.
Partners may purchase land for the use of the partnisrship, and take title
thereto as tenants in common, and yet, daring the continuance of the firm,
it would, I snppose, hardly be contended that one of the partners might avoid
his contract by compelling partition. In such case this right is suspended
during the continuance of the partnership, because the waiver of that right
must be regarded as part and parcel of the consideration which induced the
purchase. The land is bought for a special use, and as long as the necessity
for that use continues it cannot be destroyed by the act of either tenant with-
out the consent of his co-tenant. A better illustration of the principle here
stated could not be had than that found in the case of Coleman v. Coleman^
19 Pa. St. 100; for here, under an agreement that ''the ore-banks belonging
to Cornwall furnace shall remain together and undivided as a tenancy in com-
mon," partition was not permitted, at the instance of one of the owners, dur-
ing the continuance of the conditions which entered into the consideration of
the contract. It is true, the learned justice who delivered the opinion of this
court said that this agreement was incorporated into the decree of the parti-
tion that had been previously made of the balance of the estate in pursuance
cA the contract. This, however, was a mistake; though, undoubtedly, pai-t
of the consideration for that decree, as between the parties to it, was the stip-
ulation referred to. l%e commissioners who were empowered to make parti-
tion reported, inter alia, as follows: "And we do further report that the
tract of land called 'Bingham's Place,' at Conewago, together with a small
tract of 50 acres of land adjoining thereto, and also the ore-banks and mine-
hills of Cornwall furnace, do still remain undivided, to be held by the said
Curtis Grubb, Robert Coleman, Bnrd Grubb, and Henry Bates Grubb as ten-
ants in common according to their respective shares, and to the covenants and
articles in said agreement, hereinafter recited, contained." It is thus ap-
parent that the 50-acre tract and the ore-banks were carefully excluded from
the partition ; were to remain undivided, and to be left subject to the recited
contract; and, clearly, the decree could not embrace lands so excluded; neither
could it add force to the agreement under which the parties were acting. We
repeat, therefore, that this case perfectly illustrates the principle stated; that
is, where parties devote land to a particular use, which use enters into the
consideration of the contract creating it, one of the tenants in common can-
not, without the consent of his co-tenants, defeat the joint pui-pose by a writ
of partition. Tlie same rule applies, and perhaps a fortiori, to charities.
Here, again, a case in point is found in Brouon v. LutTieran ChurcJi, 23 Pa.
St. 495, wherein we held that a church and burial ground belonging to two
distinct religious congregations as tenants in common, under articles of asso-
ciation, in which it was recited that they had resolved to erect jointly a house
for the worship of God, on "a lot which had been purchased by both congre-
gations and appropriated for that purpose," and in which it was also, inter
€Uiat provided ^*that the members of both congregations shall have an equal
right and interest in the church and land belonging to the same," were not
within the purview of our statutes relating to partition, and therefore neither
of those congregations could avail itself of that right without the assent of
the other. The counsel for the appellants have endeavored to weaken the
force of this case as a precedent by dwelling on the language of the learned.



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678 ATLANTIC BEPOBTEB.^ [Pa«

justice deprecatory of the desecration of a graveyard and disturbance of ' tbe
bones of the dead, and thereby assuming that had a cemetery not been in*
yolyed in the contention the result would have been different. But with this
construction of the case we cannot agree, for a careful examination of the
point decided will show that, excluding all immaterial dicta, it was held that
the use, a charitable one, could not be destroyed in this manner at the in-
stance of either party. In view of the legal principle above stated, we have
no diflSculty in coming to the conclusion that the decree of the court below is
coiTect. The property in controversy was by the five congregations purchased
for and devoted to a charitable use, to-wlt, a parsonage and glebe, for the
common benefit of all jointly. This appears by the deed itself, wherein it is
set forth, "which several named Lutheran congregations form the Mahanoy
Lutheran Ministerial Charge, of said county of Northumberland," and, though
by that instrument the special use does not appear, it is abundantly shown
by the oral evidence. Here, then, is a property vested in trustees for the use
of "the ministerial charge,'* composed of the several churches therein named ;
and we may well ask, by what right does one of these churches assume to destroy
that trust through the instrumentality of the writ of partition ? Not, indeed,
on the ground that St. Peter's Church refused the services of the pastor who
served the other churches, for this was its own act, and could give it no new
right in the premises, but solely on the ground that, St. Peter's being a ten-
ant in common, its right to partition is necessarily incident to its title. But,
as we have already shown, even admitting the premise assumed, the conclu-
sion is not sound, for, on all authority, this right may be waived by agree-
ment, express or implied, of the tenants in common. But at best these churches,
as churches, have but a qualified fee. Ordinarily, we agree that when a deed
is made to trustees for a church or other charity, the fee vests at once in the
association, for, the trust being raised only for the purpose of taking and pass-
ing title, it is immediately executed in the cestui que trust But it is not so
when the trust is active and continuing, as where it is created for the support
of a special use. In the case in hand,. the deed is to trustees for the benefit
of a ministerial charge, and it is clear that the fee must remain in those trus-
tees as long as that charge continues, and it is only after the use is extin-
guished that the unqualified fee can vest in the cestuis que use, and then only
in those that survive the trust. Thus it is that, from whatever point we may
view the controversy in hand, it is obvious that the plaintiffs' bill cannot be
sustained. Decree affirmed, and appeal dismissed, at costs of appellants.



TuATJT c. New York, C. & St. L. By. Co.
{Supreme Court of Pennsylvania. October 1, 1888.)

L Railboad Companibs— Construction of Road— Private Bridges.

Where a railroad passing through plaintiff's farm makes a cut about 90 feet deep,
in a road leading out to the highway, so that plaintiff is obliged to go around some
distance in order to reach the highway, the company cannot be required to bridge
the cut, under act Pa. Feb. 19, 1849, (P. L. 84,) providing that, where a railroad shall
cross an established road, the company shall construct and maintain a sufficient
crossing or causeway to enable the occupant of the land to pass over it with wag-
ons, etc., except that where a public road passes through the land the owner cannot
require the company to erect a causeway.

8. Eminent Domain— Procedure— View op Premises by Jury.

Act Pa. April 9, 1856, (P. L. 289,) § S, giving power to the court to which an ap-
peal is taken from the report of viewers, in proceedings to condemn land for rail-
roads, to make all such oroers as may be deemed necessary, authorizes an order for
the jury to view the promises after they wero impaneled and sworn.

Error to court of common pleas, Erie county; William A. Galbraith»
Judge.

The New York, Chicago & St. Louis Railway Company, in 1881, located its
toad through.George Traut's farm, in an eastwardly and westwardly direction^



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Pa*J TRAUT V. KEW YORK, 0. & 8T. L. BY. CO. 679

CQttiog dff^ large portion of its f rontage.f rom the public road. The road trav-
erses the plaintiff's farm for some 60 rods, being aboat 100 feet wide and 15
or 20 feet deep where it crosses Traut's road at the east end of his farm, and
has wholly destroyed the same, so that he is compelled to go for a long dis^'
tance through the lowlands, which is unfit for a road. Traut appealed fromi
the report of the viewers, assessing his damages at $500, to the court of com-
mon pleas, where a trial by jury was had; Traut being plaintiff, and the rail->'
way company defendant, in the issue so tried. Judgment was entered on a
verdict of $1,050 for plaintiff, and plaintiff brought error, making the follow-
ing specifications: First. That the court erred in sending the jury to view
the premises, after being impaneled and sworn. Second, In refusing plain*
tiff-s eleventh point, that" it was the duty of the railroad company to have con-:
structed a bridge across the road, where the railroad cut away the plaintijBf*s
road, if the evidence shows it was necessary for the plaintiff to go to the high-
way, and, if defendant has neglected to do so, the plaintiff is entitled to full and
adequate damages in consequence of not doing so." Act Feb. 19, 1849, (P.
L. 84,) provides that whenever, in constructing a railroad, it shall be necessary
to cross an established road or way, "for the accommodation of all persons
owning or possessing land through which the said railroad passes, it shall be
the duty of such company to make, or cause to be made, a good or sufficient,
causeway or crossing wherever the same may be necessary, to enable the oc-
cupant or occupants of said land to cross or pass over the same with wagons,
carts, and implements of husbandry, as occasion may require; and the said
causeway or crossing, when so made, shall be maintained and kept in good re-
pair by such company," with the proviso referred to in the opinion that where
ft public road shall cross the railroad, the owner of the land through which the
public road may pass cannot require the company to erect a causeway for the use
of the occupant of the land. Act April 9, 1856, § 3. (P. L. 289. ) provides " that
the viewers provided for in the eleventh section of the act, to which this is a
supplement, may be appointed before or after the entry for constructing said
road or taking materials therefor, and upon the report of said viewers, or any
four of them, being filed in said court, either party, within thirty days there-
after, may file his, her, or their appeal from said report to the said court.
After such appeal, either party may put the cause at issue in the form directed
by said court, and the same shall then be tried by said court and a jury ; and,
after final judgment, either party may have a writ of error thereto from the
supreme court, in the manner prescribed in other cases. The said court
shall have power to order wliat notices shall be given connected with any part
of the proceedings, and may make all such orders connected with the same as
may be deemed requisite."

Benson <& Urainerd, for plaintiff in error. Davenport & Griffith, for de-
fendant in error.

Sterrett, J. The order directing the jury to view the premises, after they
were impaneled and sworn, was neither improper nor illegal; and hence the
first specification of error is not sustained. Viewers appointed under the rail^-
road law are required "to meet at or upon the premises where the damages
are alleged to be sustained," and, having viewed the same, to "estimate and
determine whether any, and, if any, what amount of, damages has been or
may be sustained, and to whom payable." The manifest purpose of this re-
quirement is to afford the viewers an opportunity of acquiring fuller and more
accurate information, as to matters on which they are required to pass, than
it is possible in many cases to obtsiin from the testimony of witnesses alone.
If the^ legislature considered it so important that viewers should be thus better
informed by a personal inspection of the premises, why is it not equally de-
sirable, and, in some cases, necessary, that a like opportunity should be given
to jurors who have the same duties to perform? Such a course of procedure



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680 ATT,ANTIC REPORTER, [Pa.

is certainly not probibited by law« nor is there any good reason why it should
be. On the contrary, the practice adopted in this case appears to be author-
ized in general terms by the act of April 9, 1856, (P. L. 289;) the third sec-
tion of which gives the court, to which an appeal from the report of viewers
is taken^ '^power to order witat notices shall be given connected with any part
of the proceeding, and make all such orders connected with the same as may
be deemed requisite." The discretion thus vested in the court of common
pleas is certainly broad enough to cover the order complained of, and it appears
to have been wisely exercised in the interest of justice.

In view of the undisputed evidence, bringing the case within the proviso to
the twelfth section of the act of 1849, plaintiff's point recited in the second
specification was rightly refused. It is unnecessary to consider the remaining
specitications of error. We find notliing in either of them that calls for a re-
versal of the judgment. The case was well tried, and the questions of fact
involved in the issue were fairly submitted to the jury. Judgment affirmed.



Appeal of EoDRiouE.
(Supreme Court of PennsyPoania. October 1, 1888.)
Trusts— Estate of Tbustbe— Wills— Construction.

A devise to tfnstees in fee, which imposes upon them no duties except to apply
the proceeds and profits of the estate to the personal use of the beneficiary (a widow,
and not in contemplation of marriage) as she might require them, and which con-
tains no limitation over either as to the income or corpus, creates a mere passive
trust, and entitles the beneficiary to an absolute convevance of the trust-estate.

Appeal from court of common pleas, ^Northumberland county; William
M. Rockefeller, Judge.

This was a bill in equity, filed by Ann Caroline Rodrigue against Simon P.
Wolverton, as trustee under the will of complainant^s father, Hugh Bellas,
for the purpose of having declared void a certain trust in the first codicil of
his will, and for a conveyance and transfer of the trust-estate to the complain-
ant, discharged of the trust. The court below dismissed the bill, rendering
the following opinion:

"This Cixse was submitted on bill and answer, accompanied by briefs of
argument, with a request that an opinion be filed very soon, as the parties
desire the opinion of the supreme court at the coming term. Beiug anxious
to accommodate them^ it is but just to myself to say that owing to a press of
public business I have not been able, under the circumstances, to give it such
attention and consideration as I would like. Therefore the following opinion,
necessarily hastily drawn, is submitted for what it is worth. Whilst Mrs.
Bodrigue was a widow when her father made his will, and did not contem-
plate a second marriage, and perhaps this is not strictly a spendthrift trust,
nor a trust to support a remainder or any interest infuturOf yet, in my opin-
ion, according to the authorities this is not always required. It may be stated
as a general proposition that every one competent to enter into a contract or
make a will, or to deal with the legal titles to property, may make such dis-
position of it as be pleases; and he may annex such conditions and UmiUitions
to the enjoyment of it as he sees fit; and he may vest it in trustees for the pur-
pose of carrying out his intention. The testator, Hugh Bellas, was one of the
most eminent and profou nd lawyers in Fen nsy 1 vania. On the 10th of October*
1860, he made his will, * feeling grateful [as he says] to Providence that I have
had sufficient strength to prepsire it carefully and execute it.' In the will he de-
vised and bequeathed the residue of his real and personal estate to his three
daughters, Eliza, Ann, and Amelia, in fee, as tenants in common, viz., share
and share alike, subject to ^he payment of debts, etc., and to be divided as
therein stated. On the 3d day of November, 1860, (twenty-three days after
the making of the original will>) he made a codicil, which reads as follows;



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ftu] APPBAL or RODBI6UE. 681

* I make the following changes in my will, dated the 10th day of October, 1860:
I devise in fee to my friends* the Honorable Alexander Jordan, and James
Pleasants, Esq., and John Taggart, and the survivor of them» trustees, all
the real and personal pro{>erty and estate to which my daughter Ann C. Rod-
rlgne would be entitled by my said last will, and these trustees and each of
them are required to apply allthe proceeds and profits thereof to her personal /
Qse and support and benefit from time to time as she may have need and re-
quire, when by her demanded in writing, for herself and her children, but not
to be applied or used otherwise.' It is clear, tlierefore, that the testator in«
tended the three persons named as trustees to be invested with a trust-estate
during the life-time of his daughter, Mrs. Bodrigue. There is no attempt or
intention to create a trust for accumulation or a perpetuity. The trust will
necessarily cease at the death of Mrs. Hodrigue, as the proceeds and profits
could no longer be applied to her personal use, support, and benefit. The
case of Bamett'i Appeal, 46 Pa. St. 892, was not a case of a trust in favor of
a married woman, a spendthrift, etc., but all the cestui que titmts were sui
juris. It is strenuously cotitended that the present is a cjise of a dry trust,
there being no special and particular duties pointed out to be performed by
the trustees; in other words, that there are no active duties imposed on the
trustees. 1 am inclined to think that this contention cannot be sustained.
In BameWs Appealf supra, the supreme court said: ' The principal error Is
in laying down as the law of Pennsylvania that a trust to receive rents and
pay them to another is executed, although not an use executed by the statute
of uses, but arising from some general principle inherent in the comiuon law
of the state. This is not supported by authority, for in Pullen v. Rianhard,
1 Whart. 521, it was distinctly held that in such case the legal estate must
continue in the first devisee, so that be might perform the trust; because,
without having the control of the estate, he could not receive the rents and
pay them over as directed.' There is a distinction between a devise to a per-
son to pay over the rents and profits to another, and a devise in trust to per-
mit another to receive the rents and profits. Pullen v. Rianhard, supra. In
the present case the trustees are expressly required to apply all the proceeds
and profits to the personal use, support, and benefit of ibe cestui que trust
from time to time as she may require them, etc., and it is necessary that the
legal estate should continue in them. Mrs. Kodri^ue was a widow with a
family of children at the time her father made his will. It has been said that
every man knows his own family best. Just what was in the mind of the tes-
tator at the time he executed the codicil may be surmised, and it is fair to pre-
sume that some proper and important motive prompted him at the time. In
Earp^s Appeal, 75 Pa. St. 123, the supreme court, m referring to the case of
BametVs Appeal, supra, said: 'Many special trusts, and some of them for
persons M^t'^'t^m, have since been upheld, a few of which have been referred
to in Ogden^s Appeal, 70 Pa. St. 5U7. ♦ ♦ ♦ Trusts supply the means of
carrying out family arrangements, and of breaking the force of the blow death
deals against the head. They furnish a protection against improvidence, in-
discretion, inexperience, imbecility, misfortune, and even vice, uphulding the
wishes of parents and friends, and inspiring even the dying with comfort.
They are contrary to no principle of justice, wisdom, or morality, and there-
fore demand our confidence and support in proper cases. Hence, when a spe-
cial trust witliin these limits is clearly raised by the imposition of active duties
on the trustee, or for purposes making it necessary to preserve the estate in-
tended to be given, the will of the donor gives efficacy to the trust.^ All that
was so well said by the supreme court in that case is applicable to the present
case, if we consider what was the manifest intention of the testator. He gave
the corpus of the estate to the trustees. By well-chosen words he invested
the share of Mrs. Bodrigue in them in fee; and then, doubtless, to furnish a
protection against improvidence, indiscretion, inexperience, or misfortune, be



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682 ATLANTIC REPORTER. [ftl,

requires these trustees and each of them to apply all the proceeds aind t)rofits
^thereof to her personal use, and support, and benefit, and so forth. He does
not require the application all at once, or whenever she may demand it, but
,tbe words of the codicil are, * from time to time, as she may have need and r6«
quire.' The words, • when by her demanded in writing, for herself and her
children, but not to be applied or used otherwise,* may leave the question as
to who is to be the judge or determine as to the necessity and requirement
Bomewhat uncertain; but still, if effect is to be given to the whole clause of
the codicil, it is plain that it was intended to furnish a protection in some
sense against inability, improvidence, indiscretion, inexperience, etc. It is
also plain that the wish and desire of this old parent was that the proceeds
and profits of his daughter's share of his estate were only to be applied • to
her personal use, support, and benefit,' and wereMiot to be applied or used
otherwise,' and hence the words, 'from time to time, as she may have need
and require.' There is nothing in the codicil giving the control or manage^
ment of the estate into the hands of the cestui que trusts She is not empow«
ered to collect and apply the proceeds and profits, but, on the contraiy, by the
express terms of the codicil, the trustees are required to apply the same for >
the purposes mentioned. It is true, this is to be done when by her demanded
In writing for herself and children; but this does not destroy the trust. Pos-
sibly they could control the application, or at least the payments, for they are
required to apply the proceeds and profits, 'from time to time, as she may
have need and require,' for her personal use, support, and benefit'. I have come
to the conclusion, therefore, that the trust declared by Mr. Bellas in the codicil
to his will is an active, special trust, if it is anything, and must be maintained
in order to give effect to his clear and well-defined purpose in relation to his
daughter and her family. The trustees have an active duty to perform . They
cannot perform it unless the legal estate continues in them; and the prayer of
the bill, 'that the said Simon P. Wolverton, as trustee under the said first
codicil, be ordered and directed to execute good and sufficient deeds of convey-



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