Eyer v. Forks Township. through whose territory a public road passes is liable to land owners for damages sustained by them through the exercise of the State's power of eminent domain in the laying out and opening of the road until made so by legal enactment: Force v. Meily, 3 Y. 153; and when a statute gives to land owners a specific remedy for the recovery of such damages, that remedy must be pursued. . . . A township, charged by a local statute with the payment of damages arising from the opening of a public road under order of the Court of Quarter Sessions, is not a municipal corporation invested with the power of eminent domain within the purview of section 8, article XVI of the Constitution, and it incurs no liability to an action of trespass by a land owner for the recovery of such damages." The old law has been somewhat changed by the Act of May 28, 1913, P. L. 368, although it was held in Woodward v. Fayette County, 258 Pa. 375, as follows: "Where a road is laid out and opened in a township of the second class on petition of taxpayers in proceedings under the Act of June 13, 1836, P. L. 551, and its supplements, the county and not the township is liable for damages done to property through which the road passes. In such case, the Act of May 28, 1913, P. L. 368, relating to the assessment of damages for the opening of township and county roads, does not apply." However, the question whether the plaintiff at this date is entitled to recover any damage for the illegal taking of his land is not before us. What we do decide is that the present proceedings are void under the act under which they were commenced. This matter has been before the court in a number of cases, and both the Supreme and Superior Courts have ruled very strictly upon the subject. An examination of the Act of May 31, 1911, § 8, P. L. 468, shows that in the case of a State highway, the Commissioner of Highways may change the route and may take land. (See, also, Act of July 18, 1917, P. L. 1040.) That section was amended by the Act of May 17, 1921, P. L. 837, extending that power to the vacation of an abandoned portion of the highway, but nowhere in the act is the State Highway Commissioner permitted to take lands for the construction of a State-aid highway or of a county or township road. The taking is confined to State highways alone, and section 16 of the act gives the course of procedure, and provides that before they can build the road, where land is taken, the Commissioner of Highways must first try to make an agreement of settlement with the land owner, and if he fails in that, persons damaged may present their petition for viewers. Those sections came before the Superior Court in Allison v. Bigelow, 68 Pa. Superior Ct. 219, where it was held that the State was liable not only for the land taken, but also for damages such as the plaintiff in the present suit has declared on. The 32nd section of the act refers to damages for the taking of land where the road is a State-aid highway. In State Highway Route No. 72, 71 Pa. Superior Ct. 85, the syllabus is: "The Commonwealth of Pennsylvania is not liable for damages to the owners of property abutting upon a State highway so established by virtue of the Act of May 31, 1911, P. L. 468, by reason of damage or injury caused to said property in the process of the improvement or reconstruction of such highway, involving only a change or alteration of the former grade without having taken or appropriated any land, and without having changed the horizontal position of the centre or side lines of the highway." That case was affirmed in 265 Pa. 369, the syllabus of which is: "In the opening and improvement of public highways, the land owners are entitled only to such redress as is given by statute, inasmuch as their claim is a matter of grace and not of constitutional right. The Commonwealth exercises its sovereign authority in the construction of public highways, and is not liable for damages occasioned thereby unless Eyer v. Forks Township. made so by express enactment." Mr. Justice Walling, in a very excellent opinion, fully answers the argument of the learned counsel for the defendant herein, that in no event can the present plaintiff recover on account of the original 6 per cent. grant allowed for highways. In Wangner v. Bucks County, 82 Pa. Superior Ct. 448, the case of a State highway, the appointment of viewers was stricken off because there was no jurisdiction for change of grade, and in the late case of Fetherolf's Petition, 84 Pa. Superior Ct. 514. it was held that the Commissioner of Highways could make no change in the route that involved the laying out of a street in a borough. In Saeger v. Com., 258 Pa. 239, it was held that the Act of 1836 is the only law with reference to laying out and vacating public highways in this State, and that the State Highway Commissioner could not vacate a portion of a public road. (That decision has been changed by the Act of May 17, 1921, P. L. 837.) We have referred to these authorities to show that no liberal construction has ever been permitted with respect to the road laws of this Commonwealth. Where the plaintiff seeks recovery, he must point to the statute, and if he cannot do that, he must fail. The taking in this case was not by the State Highway Commissioner. Whoever took it acted without authority of law. And now, July 6, 1925, motion for judgment non obstante veredicto is granted and rule made absolute, and judgment is directed to be entered on the verdict in favor of the defendant upon the payment of the jury fee, and the evidence taken upon the trial is certified and filed and made part of the record. From Henry D. Maxwell, Easton, Pa. 1. A widow who is given a life estate by her husband, with remainder to children, and accepts under the will, may thereafter, in writing, "relinquish and release" her life estate in the property devised and bequeathed to her, and the remaindermen may then be entitld to partition of the real estate. 2. In such case, it is immaterial that the executors are given the power to sell the personalty and rent the real estate, inasmuch as the widow owns the income and necessarily the right from which it springs. Partition - Orphans' Court-Process-Citation-Service of citation—Act of June 7, 1917. 3. Under the Act of June 7, 1917, P. L. 340, service of citation in partition proceedings in the Orphans' Court cannot be made by registered letter. 4. A petition for partition must aver definitely that there are no parties interested save those named in the petition, and should state whether or not there are encumbrances on the land. Rule to show cause why proceedings in partition should not be dismissed. O. C. Snyder Co. Knight & Taggart, for rule; A. F. Gilbert, contra. POTTER, P. J., Aug. 24, 1925.-On June 27, 1925, a petition was presented to us by James H. Smith, a son of the decedent, asking for a citation on all parties interested, requiring them to show cause why an inquest in partition should not be awarded. The citation was allowed, which was served personally on most of the heirs and by registered mail on the others. On July 13, 1925, the petition of Ira C. Smith, also a son of the decedent, was presented, asking for a rule on the parties in interest requiring them to Smith's Estate. show cause why the partition proceedings should not be dismissed, setting up reasons therefor, which we shall dispose of in due order. Ezra Smith died testate on Feb. 19, 1914, and appointed James H. Smith, a son, and Howard Walter as his executors. His will was duly probated and letters testamentary were issued to his executors. His will is as follows: “I, Ezra Smith, of Beaver Township, in the County of Snyder and State of Pennsylvania, yeoman, being of sound mind, memory and understanding, do make and publish this my last will and testament: "I give and bequeath unto my beloved wife, Adeline Smith, all my personal property and real estate I possess at the time of my decease to hold during her natural life. "My executors to sell all my personal property and rent farm and it is my will that she make her home with one of the children. "After the death of my wife, Adeline Smith, it shall be divided share and share alike between my children. "I appoint my son, James H. Smith, and Howard Walter as executors of this my last will and testament, and said executors to see that my wife is well taken care of. "In witness whereof, I have hereunto set my hand and seal the 2nd day of June, 1913. "Witnesses: "JAMES H. BINGAMAN. (Signed) "EZRA SMITH. [Seal.] "JACOB A. AIGLER." On March 9, 1914, his widow, Adeline Smith, made her election to take under the will, which was duly filed and recorded. It seems this widow used the income of her husband's estate, as provided by his will, till June 25, 1925, when she surrendered her life estate by filing the following paper, to wit: "Now, June 25, 1925, I, Adeline Smith, widow of Ezra Smith, deceased, hereby relinquish and release my life estate in the farm of Ezra Smith, deceased, situate in Beaver Township, Snyder County, Pa., and containing 169 acres, more or less. "Witnesses to mark: "J. B. SPANGLER. her "ADELINE (X) SMITH. mark "A. H. WALTER." After which the petition for the citation for partition was presented, the following being a copy thereof, with the decree entered thereon by the two associate judges of this court: "In the O. C. of Snyder County. At Oct. Adj. Term, 1925. "In re Estate of Ezra Smith, late of Beaver Township, Deceased. "Petition for citation and writ of partition. "To the Honorable the Judges of said Court: "(1) The petition of James H. Smith respectfully represents: "(2) That Ezra Smith died Feb. 19, 1914, testate, his last will and testament, probated March 6, 1914, is of record in Will Book No. 6, page 239, and a copy thereof is hereto attached and made a part of this petition. "(3) That testator devised his real estate to his wife, Adeline Smith, to hold during her natural life. "(4) That the legatees and devisees of testator are as follows: (1) Adeline Smith, widow, Beavertown, Snyder Co., Pa., care of Howard Walter; (2) James H. Smith, son, Benfer, Snyder Co., Pa.; (3) Ira C. Smith, son, Troxelville, Snyder Co., Pa.; (4) Geo. A. Smith, son, Mifflinburg, Union Co., Pa., R. Smith's Estate. D. No. 1; (5) Lydia (Mrs. James H.) Knepp, daughter, Beavertown, Snyder Co., Pa.; (6) David L. Smith, deceased (died after his father, Ezra Smith): (1) Lottie Smith, widow, McClure, Snyder Co., Pa., R. D.; (2) The Sunbury Trust and Safe Deposit Co., guardian of the three minor children of David L. Smith, deceased. "(5) That testator died seized in his demesne as of fee in the following real estate: All that certain messuage, tenement and tract of land, situate in Beaver Township, Snyder Co., Pa., and bounded and described as follows: Adjoining lands of James Weiand, James Foreman, Clarence Bailey, George Lepley, James H. Smith et al. and containing one hundred and sixty-eight (168) acres, more or less, with the appurtenances. "(6) That Adeline Smith, widow of testator, has relinquished her life estate in said real estate. "(7) That your petitioner is a legatee and devisee of testator. "(8) Wherefore, they pray your Honors to award a citation on all parties in interest to show cause why an inquest in partition of said real estate should not be awarded, and if no cause is shown, to award said inquest as prayed for. "JAMES H. SMITH. "Snyder County, ss.: "Personally appeared before me, the undersigned, James H. Smith, petitioner above named, who, being by me duly sworn according to law, deposes and says: That the averments of the above petition are true to the best of his knowledge and belief. "JAMES H. SMITH. "Sworn and subscribed to before me this 23rd day of June, 1925. "Now, June 25, 1925, I, Adeline Smith, widow of Ezra Smith, deceased, hereby relinquish and release my life estate in the farm of said Ezra Smith, deceased, situate in Beaver Township, Snyder County, Penna. "Now, June 27, 1925, citation awarded as prayed for; service within Snyder County to be made by the Sheriff by serving true and attested copies of this petition and decree, and outside of Snyder County, the same service is to be made by registered mail. Returnable July 13, 1925. "CHAS. M. INGRAM, A. J. The reasons why these proceedings should be dismissed as filed, or the most of them, seem to have been abandoned, and the following reasons, as taken from the brief of the petitioner for the rule, seem to be substituted for them, viz.: 1. Adeline Smith, widow of Ezra, has an outstanding life estate in the whole of said farm and, consequently, under section 1 of the Partition Act of June 7, 1917, P. L. 337, the court has no jurisdiction. 2. Under the will the executors hold the farm in trust for the widow's life and she cannot release it. 3. Service of the citation has not been made upon George A. Smith, one of the children of Ezra, nor upon The Sunbury Trust and Safe Deposit Com Smith's Estate. pany, guardian of certain of the children of a deceased child of Ezra, according to the provisions of the Partition Act of 1917 and the Orphans' Court Act of June 7, 1917, P. L. 363. 4. The petition does not show on its face sufficient facts to give the court jurisdiction. The first reason sets out that this widow has a life estate in the real estate of her husband sought to be partitioned, notwithstanding her surrender of it, of which she cannot make disposition. The first paragraph of the will of her husband clearly gives her a life estate in all his property, both real and personal. It is her property absolutely, of which she is the undisputed owner. The second paragraph directs his executors to sell the personal property, to rent the farm, and directs that the widow make her home with the children. The yearly income from the money derived from the sale of the personal property is then to be given to the widow. Instead of having the corporeal possession of the personal property, she is to have the possession and ownership of the income of the money derived from its sale. The testator apparently desires to further relieve her of responsibility and trouble, so he directs that his executors, who, for this purpose, may be called trustees, rent the farm for her, and it follows that she is to receive the profits of it. She thus owns the income of the money derived from the sale of the personalty, as well as the income from the farm. It is her absolute property, and we think she can do as she wishes with it. She can sell it, she can give it away or make such disposition of it as may suit her. If she owns the income from these two sources, she must necessarily own the right from which it springs. She does not own the property itself, but she does own the use of it, and if she owns the right to it, she can also dispose of this right in any manner she may see fit, and having done so, she can make no further claim regarding it. She has parted with it and it is gone from her. The Orphans' Court Partition Act of June 7, 1917, P. L. 337, 339, provides that the Orphans' Court shall not have jurisdiction of real estate in partition proceedings during the continuance of any life estate in the whole of such real estate. If the farm of Ezra Smith was clogged by this widow's life estate in it, then, clearly, we would have no jurisdiction and the proceedings would need be dismissed, but we think that by her written surrender of her life estate, under date of June 25, 1925, she thus relieved the farm under contemplation of the life estate she had in it by the terms of her husband's will. Upon the death of Ezra Smith, the fee in the farm passed to his children as remaindermen, while the life estate vested in the widow. Upon the death of the widow, her life estate terminates and the remaindermen take full possession if the life estate so long continues. A life estate may be terminated by surrender, which consists in yielding up the particular estate to the person having the next immediate estate in remainder or reversion: 21 Corpus Juris, 970. And by the determination of a life estate in any manner, the lifetenant's leases and mortgages are terminated and the remainderman is given a right to immediate possession: 21 Corpus Juris, 971, § 121. Under the will of Ezra Smith, the bequest to his widow is a life estate in all his property. She gets nothing more and nothing less. She did not need to accept it, and no one could have compelled her to do so, and no one could compel her to keep it. If she could have refused it upon the death of her husband, why cannot she refuse to keep it now? If she had refused it then, she would have taken under the intestate laws. If she surrenders it now, she takes nothing. We fail to see how any one can be prevented from giving away his property, and that is exactly what this widow has done. By the sur |