John A. Metz, of Pittsburgh, for appellants. George Alter and Ralph P. Tannehill, both of Pittsburgh, for appellees. MOSCHZISKER, J. The testator left an estate, appraised at $5,489.54. The auditing judge, after allowing debts, expenses, and pecuniary legacies to relatives, awarded the net balance, amounting to $4,199.22, to the appellants; but, on the hearing of exceptions to the adjudication, the orphans' court declared the decedent intestate as to his residuary estate, and distributed that fund among his next of kin, a sister and certain nephews and nieces; hence this appeal. and their testimony was received subject to Argued before BROWN, MESTREZAT. the objection that they were incompetent POTTER, ELKIN, and MOSCHZISKER, JJ. witnesses. If they were claiming as creditors of the estate, the objection would be well taken; but as they claim as legatees and by devolution, they are competent witnesses, and the objections are overruled. The decedent was a bachelor, and, for about three years prior to his death, rented a room from the claimant, in which he lodged during the period, taking his meals elsewhere, or cooking them in his own room. Prior to his last illness he was sick several times, and Mrs. Thompson nursed him; about the 8th of February, 1911, he took ill, was confined to his bed, and at his request, Mrs. Thompson procured a physician, who attended him until his death; the physician and Mr. Quaill, testator's attorney, advised that he be taken to the hospital, and Mrs. Thompson made arrangements at the Presbyterian Hospital for his admission. He at first refused to go, and the Thompsons on the 13th of February called in his attorney and a nephew, Curtis King, to persuade him to do so, and he finally consented, and was taken to the hospital on that day; Mr. Quaill and Mr. King followed the ambulance to the hospital, and Mr. Quaill arranged for the payment of his bills. The claimants nursed and took care of him until taken to the hospital, and Mrs. Thompson called there to see him daily, except one day when she was ill, until his death on the 18th of February, 1911. On the 10th of February, 1911, Mr. Thompson notified Mr. Quaill that the decedent was ill, and wanted to see him, and that day Mr. Quaill visited him and the will was prepared and executed. Mrs. Thompson was notified of his death, and in pursuance of instructions the testator had given her husband and herself, and with the concurrence of Mr. Quaill, executor of the will, they selected a casket, made all the arrangements for his funeral, which was conducted and the burial made according to the instructions given them, and as provided in his will. Had the testator died on the 13th day of February, 1911, at the house of the claimants, as they would have been the only persons who nursed him and looked after his comfort in his last sickness, and as they also saw that he had a decent Christian burial, there could be no question that they answered to the description of the residuary legatees. Although he did not die at their house, and they did not nurse him during the whole period of his last illness, yet by making arrangements for him to be taken to the hospital they saw to it that he was properly nursed and given proper medical attention, and they answer in all particulars to the description of the residuary legatees. Distribution of the residue of the estate will therefore be made to Scott Thompson and Jeannette, his wife, as residuary legatees." The exceptions were sustained by the court The material facts in the case are correct ly set forth in the opinion of the auditing judge, published in connection herewith, except that the date when the testator "took ill" was between February 3 and 5, 1911, not "about the 8th of February," as therein stated. The opinion overruling the award to the appellants does not differ essentially from the adjudication on the underlying facts, but the majority of the court below drew different inferences, and reached other conclusions than those stated by the auditing judge. The judge who heard the testimony conclud ed that the appellants "answer in all respects to the description of the residuary legatees" portrayed in the will; while the court in banc, after referring to some of the facts found by the auditing judge and other evi dence shedding light thereon, determined that, "the evidence does not bring these claimants within the description; even if there were doubt, it must be resolved in faterminate and the indeterminable beneficiavor of intestacy, both by reason of the inderies, and the lack of convincing proof." [1] The opinion of the learned court below has had our careful consideration; but we feel that the auditing judge reached the right conclusion in supporting the will, and that his award to the appellants was justified by the proofs. At the time the will was executed the testator was 75 years of age, and knew that he was very ill; he had no immediate family, and was not on cordial terms with his sister, who was his nearest relative: he had lived with the appellants for years, and apparently looked forward to rewarding them for past kindnesses and for services he anticipated would be performed in the future, not by remuneration but by a substantial remembrance; for reasons of his own, he preferred to designate his residuary legatees by a description which expressed the motive for his gift rather than by name; in this way, should those he had in mind not continue to perform the friendly offices anticipated, his gift would fail as to them and go to others, if any, who at the end of his days might by their deeds bring themselves within "Whomsoever takes care of me and nurses, and looks after my comfort during my last sickness or sees to it that I am properly nursed and cared for and given proper medical attention during my last sickness and a decent Christian burial after my decease," should take his residuary estate. We cannot agree that the beneficiaries here described are "undeterminable" under the evidence at bar, or that there is a lack of "convincing proof" upon the point at issue. John A. Metz, of Pittsburgh, for appellant. George Alter and Ralph P. Tannehill, both of Pittsburgh, for appellees. MOSCHZISKER, J. The opinion filed January 19, 1914, in the Estate of John B. Glasgow, No. 94, October term, 1913, appeal of Scott Thompson, covers the appeal of Jeanette Thompson, No. 95, October term, 1913, 90 Atl. 332, and the order there made applies to the latter appeal; the prothonotary will mark the record accordingly. (243 Pa. 595) 1. EMINENT DOMAIN (§ 201*) CHANGE ОР GRADE-MEASURE OF DAMAGES-EVIDENCE. In change of grade proceedings, it was not error to admit evidence of how far the grade left the property below the street at the street line of the property, over an objection that such evidence was improper because referring to the side line of the street instead of to the center line; the question in determining the measure of damages in such proceeding not being what is the changed condition in any part of the street, but what is the changed conand how such change affects the market value dition of the street throughout its whole width, of plaintiff's property. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 5402; Dec. Dig. § 201.*] 2. APPEAL AND ERROR (§ 1050*) — HARMLESS ERROR-ADMISSION OF EVIDENCE. [2] The will must be considered with a thought to the conditions under which it EBBERTS et al. v. BOROUGH OF EDGEwas written (Peterson's Estate, 89 Atl. 126), WOOD. and when it and all the surrounding circum-(Supreme Court of Pennsylvania. Jan. 5, 1914.) stances are looked at reasonably, the appellants stand out clearly as aptly fitting the testator's description of those to whom he desired the balance of his estate to go. We must assume the testator contemplated that a rational construction would be placed upon his words, and the thought expressed by the court below that any one could be held to come within the description who in any degree contributed to the care of the decedent during his last illness, or subsequently had to do with his burial, does not impress us as a fair view of the will. We feel that the learned court failed to give a reasonable construction to the language employed by the testator, and that it gave undue importance In change of grade proceedings, that a witto what it conceived to be the side lights in ness testified that a certain amount had been the evidence; whereas the auditing judge in-spent, instead of testifying to the probable reaterpreted the words used in a reasonable way, and was properly guided by what may be termed the controlling facts shown by the proofs. Of course, the appellants in the performance of their good offices were at times obliged to act by and with others, and in so doing they called upon the decedent's executor and some of his relatives; but the testimony shows that they first actually nursed and subsequently were the moving force in the care of the testator up to the time of his death; moreover, they saw to it that he had the kind of burial that he desired. We conclude that the appellants are entitled to the fund awarded to them in the adjudication. -- sonable cost of making the necessary fill, was other witnesses as to the size of the fill and harmless, where there was ample evidence by the reasonableness of the expenditure, especially where other witnesses were permitted to give the same testimony without objection, and timony as that complained of should form the the trial court instructed that none of such tesbasis of the verdict. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.*] Appeal from Court of Common Pleas, Allegheny County. Change of grade proceeding by William M. Ebberts and others against the Borough of Edgewood. From judgment for plaintiffs, defendant appeals. Affirmed. Argued before FELL, C. J., and BROWN, ELKIN, STEWART, and MOSCHZISKER, The assignments of error are sustained, the final decree is set aside, and the record is returned to the court below, with directions to dispose of the case as here indicated; | JJ. the costs to be paid out of the fund. (243 Pa. 618) In re GLASGOW'S ESTATE. Appeal of THOMPSON. (Supreme Court of Pennsylvania. Jan. 31, 1914.) Appeal from Orphans' Court, Allegheny County. In the Matter of the Estate of John B. Glasgow, deceased. From a decree sustaining exceptions to adjudication, Jeanette M. Thompson appeals. Reversed. Argued before BROWN, MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ. John D. Meyer, of Pittsburgh, for appellant. G. C. Lewis and George W. Flowers. both of Pittsburgh, for appellees. MOSCHZISKER, J. This is a change of grade proceeding; judgment was entered on a verdict for the plaintiffs, and the defendant has appealed. [1] The first assignment of error complains of the overruling of an objection to this question, "How far did the grade there leave that property, that lot, below the street, at the street line of the property?" propounded to one of the plaintiffs when upon the stand. The appellant contends that "the question of | is not material here, for there was ample the amount of the change in the grade should evidence given by other witnesses concernbe confined solely to the center line of the street"; and it argues that the testimony objected to was improper because it referred to the side line of the street next to the abutting property and not to the center line of the highway. The trial judge was clearly right in the ruling under consideration; as stated in the opinion of the court below: "The question is not what was the changed condition in any part of the street, but what was the changed condition of the street throughout its whole width, and how did that changed condition affect the market value of the plaintiff's property." ing the size of the fill and its proper cost per cubic yard to show the reasonableness of the expenditure; moreover, another of the plaintiffs' witnesses was permitted, without objection, to give precisely the same testimony as that complained of; and finally the trial judge instructed the jury that none of the testimony upon the subject of the fill was to form the "basis" of their "calculation" or of their "verdict," but that it was simply to show "what will have to be done in order to bring this property into use," and he told them, more than once, that they must "bear in mind that the measure of damages, [2] The second assignment complains of the basis from which you will find your vertestimony given by one of the plaintiffs to dict, is the market value of this property bethe effect that he had expended $1,500, in fore the improvement was made, and its filling parts of the property, "so it could be market value immediately after the improveutilized" at the new grade. The appellantment was made, as affected by the improvecontends that the court erred in admitting ment of the street." this proof, because before the change "part of the property was below the original grade of the street and part was at or above the grade"; and it argues that, with the land in this condition, any evidence upon the subject of a fill was irrelevant and inadmissible, citing Chambers v. South Chester Borough, 140 Pa. 510, 21 Atl. 409; Mead v. Pittsburg, 194 Pa. 392, 45 Atl. 59; McCombs v. Pittsburg, 194 Pa. 348, 45 Atl. 60; Bond v. Philadelphia, 218 Pa. 475, 67 Atl. 805; Edsall v. Jersey Shore Borough, 220 Pa. 591, 70 Atl. 429. On the other hand, the appellees argue that the authorities depended upon by the appellant have no application, because before the improvement "the property was at, or practically at, the grade of the street"; and, to show that under such circumstances the testimony was proper, they cite Dawson v. Pittsburg, 159 Pa. 317, 28 Atl. 171; Patton v. Philadelphia, 175 Pa. 88, 34 Atl. 344; Shaffer v. Reynoldsville Borough, 44 Pa. Super. Ct. 1; Hill v. Oakmont Borough, 47 Pa. Super. Ct. 261. A conflict appears in the proofs on the lay of the land in relation to the grade of the street before the change. Many of the witnesses stated that the lots were practically on a grade with the street, while others gave testimony to the contrary; hence, in view of the verdict, we must assume that the jury found this material fact as contended for by the plaintiffs. Since there was evidence sufficient to sustain a finding that, prior to the improvement, the land was practically on a level with the grade of the street, the cases relied upon by the appellant do not apply, and, under those cited by the appellees, evidence of the general character of that in question was relevant and admissible. The fact that the particular witness whose testimony is assigned for error stated an amount spent, instead of testifying to the probable reasonable cost of making the necessary fill, The third assignment of error is general in its terms and requires no special consideration other than to say that we are not convinced that the verdict is either "against the law" or "the evidence." The trial consumed considerable time, and a great deal of testimony was taken; those charged with the responsibility and possessed of the right to fix the facts found them against the appellant; and, since no substantial error appears upon the record, the verdict must stand. The assignments are all overruled; and the judgment is affirmed. (243 Pa. 547) Appeal of CHIROPRACTORS' ASS'N OF PENNSYLVANIA. (Supreme Court of Pennsylvania. Jan. 5, CORPORATIONS (§ 21*) - APPLICATION FOR Where it appears that the applicants for a charter for a corporation of the first class, to be known as the "Chiropractors' Association of Pennsylvania," are engaged in general practice in the treatment of diseases, but that they have no legal status as medical practitioners. it is not an abuse of discretion to withhold approval of the application until they have attained such status under the laws governing medical practitioners. Cent. Dig. 88 66-68; Dec. Dig. § 21.*] Appeal from Court of Common Pleas, Allegheny County. Application for a charter by the Chiropractors' Association of Pennsylvania. From an order refusing the application, the applicants appeal. Affirmed. The petition for the charter contained the following paragraphs: "(1) The name of the proposed corporation is 'Chiropractors' Association of Pennsylvania.' "(2) The purpose for which the corporation is formed is to foster and encourage the study of the science of chiropractic and to popularize the same in the state of Pennsylvania, through provisions for public lectures, conferences, and the distribution of books and literature treating upon said subject, to maintain a central organization that will keep those interested in said science in Pennsylvania abreast of all research work and of the development of said science in the various states and countries, and to encourage co-operation among those learned in chicopractic for its good as well as for the good of all those concerned or interested therein." The opinion of the Supreme Court states the case. The court refused to approve the charter. Argued before BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. what the nature of chiropractic is? this answer was given: 'Chiropractic is a philosophy, a science, and art dealing with the brain and nervous systems of the body.'" Another answer seemed to indicate to the court "that the incorporators are engaged in general practice in the treatment of almost every known disease, which would bring them within the requirements of the laws of the state regulating medical practice." We cannot say that the court below was wrong in its conclusion that approval of this application ought to be withheld until the incorporators have attained a legal status under the laws of the commonwealth governing all medical practitioners. No substantial interest of the petitioners can suffer by the delay. The recognition for which petitioners seek seems to be a matter more properly for the We are not Samuel S. Shapira, of Pittsburgh, for ap- Legislature than the courts. pellants. satisfied that there was any abuse of sound legal discretion in refusing in this instance the application for a charter. The appeal is quashed, and the order of the court below is affirmed. (243 Pa. 573) MURDOCH ▾. CITY OF PITTSBURGH et al. (Supreme Court of Pennsylvania. Jan. 5, 1914.) 1. MUNICIPAL CORPORATIONS (§655*)—STREETS PROCEEDINGS TO WIDEN AND IMPROVE STREET. A city of the second class cannot by ordinance locate a new street over an existing and traveled thoroughfare, or provide for the widening and improving of public streets under the guise of extending another street, but, to widen 1903 (P. L. 35), which provides for the "laying a street, it must proceed under Act March 19, out, opening, widening, straightening, extending, and vacating streets and alleys" in cities of the second class. [Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 655.*] 2. MUNICIPAL CORPORATIONS (§ 649*)—EXTEN• SION OF STREET-ORDINANCE-VALIDITY. POTTER, J. The appellants in this case desired to be incorporated as an association to be known as the Chiropractors' Association of Pennsylvania. After examining the application and considering the testimony taken before a commissioner in support thereof, the court below was unable to see its way clear to approve of the grant of the charter. In its opinion several reasons for the refusal are given; the first one being, as stated, that it appears from the report of the commissioner and from the petition that the applicants as "chiropractors" have at the present time no legal status under the law of Pennsylvania, and that the main object in procuring the present charter is to give the association a legal status, prior to the status which they will endeavor to obtain under the law of the state. This fact of itself says the court below "is a sufficient reason for withholding approval of this charter until the status of the incorporators is recognized and defined by laws which they are seeking to have enacted, defining their legal status within this state." Another reason assigned was the implied purpose of the proposed corporation to create subordinate organizations throughout the state of Pennsylvania subject to the central organization. This, the court felt, was beyond its authority to sanction. A third reason which influenced the court was its inability to ascertain what was meant in the application by the term "chiropractors," or what the real purpose was which was to be effected by the organization which it was desired to form. As to this, the court says: "Perusal and examination of the testimony of the incorporators gives rise to considerable doubt in the mind of the court (as to) under which of the purposes of the act of assembly the incorporators may be "The purpose of this bill was to restrain chartered. Its exact position seems to be defendants from proceeding to open, grade, doubtful in the minds of the incorporators and pave an extension of Hamilton avenue themselves. To the question, "Briefly state between Fifth avenue and Lambert street. Where ordinances of a city of the second class provided for the extension of a certain street, which extension would necessarily into mention such existing streets, they were include streets already in existence, but failed valid, for failure to put abutting property owners on notice of the proposed extension. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1423; Dec. Dig. 649.*1 Appeal from Court of Common Pleas. Bill of Alexander Murdoch to enjoin the City of Pittsburgh, a municipal corporation, and others from paving and improving a certain street. From a decree granting an injunction, defendants appeal. Affirmed. Frazer, P. J., filed the following findings of fact and conclusions of law in the common pleas: From the bill, answer, and proofs we find the to in the third finding of fact, an ordinance following facts: "Findings of Fact. "(1) Plaintiff is a citizen of defendant city and the owner of property abutting on Louden street in the Twelfth ward of defendant city, which is fully described in paragraph 1 of the bill. "(2) The city of Pittsburgh is a city of the second class, William A. Magee its duly elected, qualified, and acting mayor, and Joseph G. Armstrong its director of the department of public works. "(3) By an ordinance entitled 'An ordinance extending, opening and widening Hamilton avenue from Fifth avenue to Lambert street, establishing the grade thereof, and providing that the cost, damages and expenses occasioned thereby be assessed against and collected from properties benefited thereby,' approved December 9, 1912, it was provided that Hamilton avenue be extended from Fifth avenue to Lambert street, and its width fixed at 60 feet. 'authorizing and directing the grading, paving and curbing of Hamilton avenue from Lambert street to Fifth avenue and providing that the costs, damages and expenses of the same be assessed against and collected from property specially benefited thereby,' approved February 13, 1913, was offered in evidence, which ordinance authorizes and directs the mayor and the director of the department of public works to advertise for proposals for the grading, paving, and curbing of the extension of Hamilton avenue between Fifth avenue and Lambert street. "(6) The ordinance, dated December 9, 1912, was enacted by council of the city of Pittsburgh on its own initiative, without a petition of property holders. Viewers were appointed by the court to assess benefits and damages resulting to property owners by reason of the extension of Hamilton avenue under the ordinance of December 9, 1912. The viewers proceeded with their work, and on April 18, 1913, filed their report in court. "(7) Defendants are about to take possession of the ground included within the lines of the proposed extension, and proceed to complete the improvement contemplated by the ordinances above referred to. "(8) Neither of the ordinances referred to in the preceding findings of fact contains, either in the title or the body of the ordinances, any reference whatever to the fact that the proposed extension of Hamilton avenue includes, absorbs, or overlaps any other public street or alley. "Conclusions of Law. “(4) Hamilton avenue, as now open and used, is a paved, graded, and curbed street, 60 feet in width, and extends from Fifth avenue eastwardly to the city line. The ordinance referred to in the preceding finding proposes to extend this avenue west, at a uniform width of 60 feet, from Fifth avenue to Lambert street. In making such extension, the new street will first pass over private property until it reaches the Finley Torrens plan of lots, from which point to Torrens street it embraces and includes an opened and existing public street having a width of 60 feet, laid out in the Torrens plan of [1] "This case is similar in principle to lots, which plan has been accepted and adopt- Hawkins v. Pittsburgh, 220 Pa. 7, 69 Atl. ed by the city of Pittsburgh. From Torrens 283, and City Improvement Co. v. Pittsstreet to Ritchey alley private property is burgh, 234 Pa. 486, 83 Atl. 408, and is ruled again taken; from Ritchey alley to the east- by those cases. It is admitted that in makern line of James M. Snyder's plan of lots ing the extension of Hamilton avenue acthe proposed extension embraces and over- cording to the lines laid down in the ordilaps the entire length of Louden street, a nances referred to in the findings of fact, street 40 feet wide, laid out in a plan of par- that, in addition to the private property taktition in the estate of Dr. A. C. Murdock, on en, a public street 60 feet in width is used as file at No. 3, March term, 1875, of the or- part of the new street; that a street 40 feet phans' court in partition, 'and which street wide is included within its limits, and that is claimed by the city of Pittsburgh to be an street widened to 60 feet; and also that a open, existing, traveled, public street'; from public alley 20 feet wide is absorbed and the western line of the Murdock plan, being widened to 60 feet. While the city undoubtthe eastern line of James M. Snyder plan, edly has authority to take private property which is recorded in the recorder's office of for street purposes, we have not been referAllegheny county in Plan Book, vol. 5, p. 143, red to any law that directly permits the lothe proposed extension passes through the cation of a new street over an existing and Snyder plan of lots to Enterprise street, and traveled thoroughfare. If the streets and embraces and overlaps an open and used pub- alley included within the lines of the extenlie alley 20 feet in width; and from Enter- sion were merely private ways, they might be prise street to Lambert street through pri- appropriated as private property under the vate property. The improvement contem- law as it now exists, but, being public plates the widening of Louden street from 40 thoroughfares, they are subject to the laws feet to 60 feet, and the alley in the Snyder relating to streets, and can only be vacated, plan from 20 feet to 60 feet, and the absorb- widened, or straightened in the manner proing of the street 60 feet wide in the Torrens vided by the acts of assembly applicable plan. thereto. In this case the proposed extension "(5) In addition to the ordinance referred of Hamilton avenue, by in part occupying |