properly go to those entitled to take in remainder.

On February 21, 1881, Moncure Robinson, Sr., a resident of Philadelphia, executed a deed of trust, under which he assigned to his son, Moncure Robinson, Jr., in trust for Susan McFarland, 20 shares of the common stock of the Richmond, Fredericksburg & Potomac Railroad Company, "to receive any dividends which may be made on the shares of stock above mentioned, whether in money or scrip of any description, and pay over or transfer the same to the said Susan McFarland, for the term of five years from this date, at the expiration of which period he is authorized to transfer the said shares of stock on the books of the said company to the said Susan McFarland, if in his opinion it should be advisable for him, in the interest of the said Susan McFarland, to do so. If at the expiration of the said term of five years it should seem to him, in the interest of the said Susan McFarland, not advisable to transfer the said shares to her, he is then authorized to hold the same under this trust such longer period as he may deem it best, for the interest of the said Susan McFarland, to do SO. In the event of the said Susan McFarland dying without children, the shares hereby conveyed are to be retransferred to the said Moncure Robinson (the signer of this instrument) in fee simple or absolute property, if he be then living, or, if he be not living, to his widow, Mrs. Charlotte R. Robinson, or, if neither be living, to their personal representatives." Some nine months after the creation of this trust the railroad company issued what were known as "dividend obligations," to an amount equal to 70 per cent. of the par value of the common stock of the company; and of these obligations $1,400 in par value came into the hands of Moncure Robinson, Jr., as trustee for Susan McFarland. Upon these dividend obligations a dividend of like amount to that payable on the common stock of said company was payable. The income of the 20 shares of common stock aforesaid and the dividends upon the dividend obligations were paid to Susan McFarland, the cestui que trust, during the period of five years provided for in the trust deed. In the exercise of his discretion the trustee elected not to transfer the stock absolutely to Susan McFarland, and the trust was continued until her death on September 10, 1905.

Moncure Robinson, Jr., died December 13, 1896, and the court, under the petition of Susan McFarland, substituted Charles Chauncey, Esq., the present trustee. Moncure Robinson, Sr., lived more than 20 years after the creation of the trust, and died November 10, 1901; and his widow died August 17, 1905. Under the instrument creating the trust, "the said shares" go to "the personal representatives" of Moncure Robinson, Sr., and Charlotte R. Robinson, his wife. The account of the trustee, as filed. showed a balance of

The

cash for distribution realized from the sale of the securities which formed the corpus of the estate, and in addition he reported the dividend obligations, which have been held intact, amounting to $1,400 par value. account was referred for audit and distribution to Henry G. Swayne, Esq., and he concluded that the facts of the case brought it within the rule which has often been applied to trusts created by will, under which undivided profits, as between life tenant and remainderman, are apportioned as of the date when the trust begins. He therefore awarded the proceeds of the dividend obligations, less a small amount accruing after the trust began, to the persons entitled to take in remainder under the deed. The court below dismissed exceptions to the ruling of the auditor, and confirmed his report. This appeal is by the executor of the life tenant.

It appeared from the testimony before the auditor, that the settlor, Moncure Robinson, Sr., was a large stockholder in the railroad company at the time the trust was created; and it is argued by counsel for the appellant that he was presumably familiar with the company's condition, and the probability that in the near future there would be a distribution of the undivided profits by means of these dividend obligations. Under the language of the trust deed, all dividends on the stock, whether in money or scrip of any description, were to go to the life tenant. The so-called dividend obligations were issued in pursuance of a resolution by the board of directors reciting that the net prof its, which might have been paid to the holders of the common stock, had been appropriated during several years to the purchase of real estate and in making permanent improvements, and, for the purpose of dividing among the common stockholders the amount thus withheld, these dividend obligations, or dividend certificates, were issued, which entitled the holder to receive an amount equal to the dividend paid upon the same number of shares of common stock, and also to share in a corresponding proportion in any division of the assets of the company. If these profits had been paid out from year to year to the common stockholders, as they might confessedly have been, no one would have suggested that they constituted a division of the capital stock. What difference did it make that, having been allowed to accumulate during a series of years, they were finally distributed by means of these certificates in a lump sum? The fund had been created by the net earnings of the corporation, and it was held as part of the general assets, until in the judgment of the directors the time came when it was proper to distribute it among the stockholders from whom it had been withheld. The capital of the company was not diminished by this action. The method employed was simply a mode of distributing the profits earned by the employment of the capital during an ex

tended period, and which had in the meantime been used in the purchase of real estate and in permanent improvements.

The certificates were clearly scrip dividends. "A scrip dividend is a divident of certificates, giving the holder certain rights which are specified in the certificate itself. These dividends are usually declared when the company has profits which are not in the shape of money, but are in other forms of property, and the company wishes to anticipate the time when the property may be soldy for cash, and the cash distributed by a money dividend. Sometimes the certificate so far partakes of the character of a certificate of stock as to entitle the holder to dividends." Cook on Corporations, $535. See, also, note to same, as follows: "A dividend of scrip-i. e., a paper entitling the holder to dividends equal to dividends thereafter declared on the capital stock-is practically a stock dividend, except that the scrip cannot vote, and provision is generally made for taking it up in some manner. Such a dividend was involved in Gordon v. Richmond, etc., R. R. Co., 78 Va. 501." That case related to the identical "dividend obligations" which are now in question here. "Dividends whether declared in cash, in scrip, or in new shares, are presumptively dividends of profits, since a corporation has no power to make a dividend of its capital stock except in liquidation. We may conclude, therefore, on principle that presumtively every dividend, whether in cash, in scrip, or in new shares, goes to him who was the beneficial holder of the shares at the time when it was declared. This will carry every dividend presumptively to the life tenant, instead of to the remainderman." Thompson on Corporations, § 2193. It is true that the presumption often yields, upon inquiry into the real substance of the transaction; but in the present case such inquiry shows no reason why the presumption should yield. Of course, the payment of any dividend by a corporation in active operation takes away a portion of the assets which have been temporarily increased by the earnings, and just to that extent the value of the shares in the market may be lessened. But that fact is of no relevancy in determining the question of whether the dividend is to be regarded as income to the life tenant or as capital for the remainderman. That question is to be determined by the origin of the fund from which the dividend is paid. Lowry v. Farmers' Loan & Trust Co., 172 N. Y. 137, 64 N. E. 796. It is admitted that the fund here for distribution was made up of net earnings or profits, which were avowedly disbursed as such by the directors of the company, in the form of scrip dividends. They are therefore properly to be regarded as income, and not as capital.

The trust in this case was created by deed,

to take effect at once, and was not postponed, as where a trust is created by will, to take effect only upon the death of the testator, it may be years afterwards. But, aside from this, it is safe to say that in every case the intention of the settlor of the trust, so far as it can be ascertained, must control. "The intent of the grantor, or testator, is the pole star, and will be carried out by the courts." Cook on Corporations, § 557. The intent of the grantor here, which he plainly expressed, was that all dividends declared upon the stock in question, of whatever nature, were to go to Susan McFarland. If declared in cash, they were, in the language of the deed, to be "paid". over. If in scrip of any description, they were to be "transferred." Our consideration of the instrument creating the trust leads us to the conclusion that the term "scrip of any description," used therein, includes the so-called "dividend obligations," and that the intention of the grantor was that they should go to the life tenant.

The judgment of the court below is reversed, and the record is remitted, that distribution may be made in accordance with this opinion.

(218 Pa. 463)

DAVIS v. PENNSYLVANIA R. CO. (Supreme Court of Pennsylvania. June 3, 1907.) NEGLIGENCE-WHAT CONSTITUTES.

A railroad company is not negligent in removing bags of phosphate from a station, in the course of affairs, and piling them on its own premises abutting on a public highway, and covering them with tin, the glare of which from the sunlight frightens a horse and injures the person driving it.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, Negligence, § 54.]

Mestrezat, J., dissenting.

Appeal from Court of Common Pleas, Chester County.

Action by Charles W. Davis against the Pennsylvania Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed. Argued before MITCHELL, C. J., and FELL, MESTREZAT, POTTER, and ELKIN, JJ.

John J. Pinkerton, for appellant. A. M. Holding, for appellee.

ELKIN, J. In the consideration of this case it must not be overlooked that no question involving the duties or liabilities of a common carrier arises. The appellant must be treated as an individual owner of land, subject to no higher degree of care, nor liable in any other manner than a private owner of real estate abutting on the public highway. The rule established in this case will apply generally to the owners of real estate throughout the commonwealth.

The appellant was rebuilding its freight

warehouse at a certain station along its lines. To enable it to proceed with this work it became necessary to temporarily remove the goods and merchandise deposited in the freight station from the inside of the building. On the evening of December 1, 1905, five bags of phosphate were taken from the inside of the warehouse and temporarily placed outside on the premises of the defendant company. Three of the sacks were placed upon the ground, the remaining two on top of them, and as a protection against the rain and weather the five sacks thus placed were covered with a piece of old tin roofing, painted side down and bright side up. It became necessary to remove the sacks of phosphate from the inside of the station, because the old building was being torn down while the new warehouse was in course of construction. The sacks of phosphate were deposited upon the premises of the defendant company 25 feet distant from the middle of the public highway and 71⁄2 feet from the side of the road. On the following morning, about sunrise, the appellee was driving along the public highway, and when at a point about 50 feet away from the place where the phosphate was piled up his horse shied, made a sudden plunge to the side of the road, where the wheels of his wagon struck some flagstones crossing the ditch, the singletree broke, he was thrown out, and sustained the injuries for which damages are claimed in this action. The negligence charged in the statement of claim was that the defendant had so negligently and carelessly placed the bags of phosphate, covered with the tin roofing, near the public highway, as to frighten ordinarily gentle and well-trained horses. The case was tried in the court below, and is argued here, on the theory that the negligence consisted in covering the bags of phosphate with tin roofing bright side up, so that the horse took fright at the glare or reflection of the rays of the sun across the highway, thus causing the injuries about which complaint is made.

The burden is on the plaintiff in every such case to affirmatively prove the negligent acts complained of. In this case the only evidence offered on the question of negligence was that which established the facts hereinbefore recited. Are these facts sufficient to convict the appellant of negligence? What act was done in this case to justify a finding that ordinary care had not been exercised under the circumstances? Appellant was the custodian of the phosphate and owner of the tin roofing. It certainly cannot be seriously contended that the defendant company did not have the right to carry the bags of phosphate from the inside of the building and deposit them temporarily on its own premises on the outside, or that for the purpose of protecting them from the rain it could not cover them with the tin roofing. Nor do we think that the glare of sunlight theory, on which appellee relies to sustain this action, is sound in

principle. It burdens an owner of real estate with too high a degree of care, and is not sustained by either reason or authority. Such a rule would make it the duty of appellant in this case, and an owner of real estate in every case, to anticipate that during the time the particular thing made of tin was placed on its or his own premises a horse might be driven along the public road while the sun was shining, and that the rays of sunlight might strike the tin object at such an angle as to reflect their light across the highway in a manner calculated to frighten horses. Such a degree of care is not required, even as between master and servant; much less between parties where no such relation exists. It will not do to say that a tinsmith may not exhibit his wares on his own premises; or a blacksmith may not store farm utensils, machinery, or other things brought to him for repair, around his forge; or that a merchant may not display his goods on his own property; or that a farmer may not pile sacks of fertilizer or grain in his own fields, and, if need be, cover them with a tin roof, without being mulcted in damages because a horse, well broken or otherwise, happens to shy at them while being driven on the highway nearby. These are the ordinary risks in everyday life, which must be assumed by the individual who drives his horse on the public road. If the horse shies at objects, not extraordinary and frightful in construction or operation, placed on the premises in the usual course of business of the abutting property owner, and injuries result to a traveler on the highway, they are damnum absque injuria.

It seems to be conceded by the learned counsel for appellee that the only ground upon which a recovery can be sustained in this case is that appellant failed to exercise ordinary care, because the tin roofing was placed on the sacks bright side up. Our cases would be examined in vain for authority to support this position. We cannot believe there is authority in any jurisdiction for holding a person guilty of negligence and liable in damages because he placed on his own premises a piece of tin roofing down side up, instead of down side down. Suppose both sides of the tin roofing were bright, neither side painted; could it then be said to be negligence because it was used as a covering for the bags? Certainly not. The appellant owed the appellee no duty, except that as an abutting property owner it could not so recklessly, or wantonly, or negligently make use of its property as to interfere with his rights on the highway. Every case of this character is based on the theory that the defendant has been negligent in the performance of a duty owed the complaining party. If no duty is owed, there can be no negligence in failing to perform it; or, if the alleged duty sets up a higher standard of care than the law requires, failure to observe it will not make the party

so failing answerable in damages. A farmer preparing his fields for the sowing certainly has the right to pile a few sacks of grain in the fence corner without being liable for damages because a horse driven along the highway shies at them. The principle is very well stated by Mr. Justice Green in Piolett v. Simmers, 106 Pa. 95, 51 Am. Rep. 496, wherein it was said: "If a farmer may not have a barrel of cider, a bag of potatoes, a horse power, a wheelbarrow, or a wagon standing on his own premises by the side of a highway, except at the risk of having his estate swept away in an action for damages occasioned by the fright of an unruly horse, the vocation of agriculture will become perilous indeed." The principle is freely conceded that every person must so use his own property as not to injure others, and if he in a reckless, wanton, and willfully negligent manner makes such use of his property as to injure others he may be held liable in damages. It is equally true, however, that an owner of real estate has the right to use his property for every lawful purpose for which he may desire to use it, and is only required to exercise ordinary care in that use, in order to relieve him from liability for damages on account of injuries incidentally resulting to a traveler on the highway.

Judgment reversed, and is here entered for defendant.

MESTREZAT, J., dissents.

(218 Pa. 505)

AGNEW v. ALBERT LEWIS LUMBER & MFG. CO.

(Supreme Court of Pennsylvania. June 4, 1907.)

TRESPASS-BOUNDARIES-QUESTION FOR JURY. In an action to recover treble damages, under the act of March 29, 1824 (P. L. 152), for cutting and conversion of timber, where the dispute relates to the boundaries of land, and the oral testimony is conflicting, the court commits no error in submitting the case to the jury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trespass, § 150.]

Appeal from Court of Common Pleas, Luzerne County.

Action by Harper W. Agnew against the Albert Lewis Lumber & Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

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

George R. Bedford, Andrew H. McClintock, and John T. Lenahan, for appellant. Q. A. Gates and James L. Lenahan, for appellee.

POTTER, J. This was an action of trespass to recover treble damages under the provisions of the act of March 29, 1824 (P. L.

152), for the cutting and conversion of timber by defendant upon land alleged by plaintiff to belong to him. The cutting and conversion of the timber was admitted, but defendant claimed that the land upon which it grew was its property, and not the property of plaintiff. The question tried, therefore, was whether this land, between 23 and 24 acres in extent, belonged to plaintiff or not.

The evidence showed that on February 26, 1793, warrants were issued by the commonwealth to Isaac Bump and 18 others for as many adjoining tracts of land in Luzerne county, of 400 acres each, and that in 1795 these were surveyed as a block. One of these warrants was issued to George Bump, and the eastern half of George Bump's tract at the time of the alleged trespass had become vested in plaintiff. The land immediately adjoining this tract upon the north, which was also included in the original block surveyed, was owned at that time by defendant.

The question in dispute was the location of the George Bump tract; plaintiff contending that it ran 48.8 perches further north than was admitted by defendant. In support of his contention, plaintiff called three surveyors-Henry Colt, who made a survey of the George Bump tract in 1857; S. J. Pealer, who surveyed it in 1893 and 1895 and again in 1902, 1903, 1904, and 1905; and James Crockett, who assisted Pealer in the survey in 1902. These surveyors, beginning with marks on the ground at the south line of the track, located the north line in accordance with plaintiff's contention. Defendant called as witnesses several surveyors, who, starting from marks in the northwest lines of the original block survey, located the southern boundary of the tract of defendant, and adjacent tracts, at a distance of 48.8 perches south of the line claimed by plaintiff to be his northern boundary. The earliest of these surveys was in 1871. There was much uncertainty as to the marks testified to on both sides, because a survey of land adjoining this block had been made in 1793, and it was sometimes difficult to distinguish between the work done at these respective dates. Plaintiff also claimed title to the land in dispute by adverse possession, but the court below held that there was not sufficient evidence to support this claim, and so instructed the jury. The court declined to give binding instructions for either plaintiff or defendant, and submitted the question of the correct location of the boundary line in dispute to the jury, who found for plaintiff. Defendant moved for judgment in its favor non obstante veredicto, but the court overruled the motion and directed judgment to be entered on the verdict. From this judgment defendant appealed.

The only question raised by the assignments of error and argued in behalf of appellant is whether the court erred in re

fusing to enter judgment non obstante veredicto. A careful examination of the evidence has satisfied us that the trial judge pursued the only proper course. The evidence of neither party was conclusive, but there was sufficient to support a verdict for the plaintiff. The testimony of the surveyors as to the true location of the boundary line between the lands of plaintiff and defendant is conflicting, and the position of the line could not be settled except by the verdict of a jury. The disputed question was not one of law for the court, but one of fact, which the jury only could determine. To take it from the jury would be for the court to assume the decision of an issue of fact, where the evidence was conflicting, and where both sides rested their claims upon oral testimony. As the trial judge says in his opinion: "It was claimed by the defendant that the location of the George Bump tract must be ascertained by the rules applicable to a block survey, and evidence was introduced by the defendant for the purpose of showing such location according to that system. It having been made to appear that said tract was one of a block of surveys, the jury was instructed concerning the method of location by such rules. It was, however, claimed by the plaintiff that the George Bump tract could be located by the individual system, and he offered evidence tending to show original marks in the lines, or one line, thereof, peculiar to that tract. Accordingly, instruction as to the rules governing in such case was given the jury. Thus both theories were presented in the charge of the court." As Justice Gordon said, in Jackson v. Lambert, 121 Pa. 182, 15 Atl. 502: "The question regårds location, which is always one of fact, hence, one about which a surveyor who is properly instructed concerning the facts may always give his opinion." It was held, in Brown v. Willey, 42 Pa. 205, that, where a line or boundary is disputed, it is always a question of fact for a jury. In Wilson v. Marvin, 172 Pa. 30, 33 Atl. 275, in which the boundary of a warrant was disputed, and the plaintiff fixed the boundary by measurement from a well-established corner of a neighboring warrant, while defendant located it by marks on the ground, and by the north line of another warrant adjoining on the south, the court below did what appellant contends it should have done here-disposed of that feature of the case as matter of law. In reversing the judgment, Justice Williams, speaking for this court, said (page 38 of 172 Pa., page 276 of 33 Atl.): "It may be that the learned judge reached a correct conclusion upon the question of fact, and one that would have been reached by the jury if the question had been submitted to them. On the other hand, the jury may have found in accordance with the contention of the defendants. There was evidence bearing upon the question which it was their province

to weigh, and the conclusion from which it was their appropriate function to draw, and the evidence should have gone to them. This case was otherwise well tried, but the learned judge erred in giving a binding instruction to the jury to find in favor of the plaintiffs as to that part of the tract involved in the controversy over the location of the south line."

In the present case, both parties rely upon oral testimony to establish the various marks upon the ground, and the details of the various surveys made, and the courses which were run by the different surveyors. Both sides depend also upon the correctness of the calculations and measurements of the surveyors. Upon these circumstances, it would have been manifest error to have taken the case from the jury.

The case was tried with great care and precision, and the judgment is affirmed.

(218 Pa. 468)

LEE v. HAMILTON. (Supreme Court of Pennsylvania. June 3, 1907.) TRUST-VALID DECLARATION.

A sister held title to a farm by an absolute deed from her parents in consideration of their support for life, and during such time sought financial aid from one of her brothers, and executed a writing declaring that she held in trust one third of the farm for one brother and another third for the second brother, and covenanting to convey to them on the death of the surviving parent. Held, a valid declaration of trust, which could be enforced after the death of the surviving parent.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 47, Trusts, §§ 39, 40.]

Appeal from Court of Common Pleas, Lackawanna County.

Action by Helen A. Lee against Caroline Hamilton. Judgment for plaintiff, and defendant appeals. Affirmed.

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

Alton A. Vosburg and Charles W. Dawson, for appellant. Clarance Ballentine and Everett Warren, for appellee.

BROWN, J. On July 10, 1882, Martin Lee and Jemima, his wife, conveyed to their daughter, Caroline Hamilton (then Caroline Lindsay), the farm in dispute. In consideration of such conveyance she agreed to maintain her parents as long as they lived. Her mother died in November, 1887. On the day after her death an execution was issued on a judgment against Martin Lee, and under it all the personal property on the farm was seized and advertised for sale. The appellant had two brothers, Charles E. and John Lee. She asked Charles to assist her in sav ing the personal property from sale by the sheriff. An interview was had between them on November 21, 1887, at the office of Judge Newcomb, now of the Lackawanna