to condemn land for the construction of such a covered footwalk is not included in the right to condemn land for the purpose of constructing or widening a railroad, as provided by law. The defendants have filed separate answers, in each of which the respondents deny the equity jurisdiction of the court, and expressly aver that there is a complete and adequate remedy at law for the redress of any wrongs alleged in the bill. In addition, a formal motion under the act of June 7, 1907 (P. L. 440), has been filed, in which the court is asked to certify the cause to the law side of the court at the costs of the complainant. We are of opinion the motion must be granted. propriety be described as a necessary approach to the station proper, or a part of the station platform. "The law commits to the board of directors the determination of the question of the necessity in connection with the proposed change.' Scranton Gas & Water Company v. D., L. & W. R. R., 225 Pa. 152, 73 Atl. 1097; Sutton v. R. R. Co., 211 Pa. 554, 60 Atl. 1090. Aside from this consideration, there is no averment that the condemnation was for the purpose of constructing a covered footway. In fact, the condemnation was effectual nearly seven years before the construction of the footwalk was commenced, and the bill is silent as to the uses to which the 11-foot strip was devoted during the intervening years. The condemnation, so far as the bill indicates, was without particular purpose, and the land could have been used for the general purposes to which the defendant was entitled to use it by the provisions of the act of 1869, and which were acquiesced in by the acceptance of the bond. The bill does not aver as a fact that the proposed structure is not necessary for the 'better securing the safety of persons and property, and increasing the facilities and capacity for the trans [1] "The condemnation of the land was complete upon the acceptance of the bond by Mr. Elliott. Dilts v. Railroad Co., 222 Pa. 516, 71 Atl. 1072. The bill avers that the bond was delivered in 1905. It nowhere avers that it was not accepted, and the averment that it was afterwards assigned to the complainant was an exercise of dominion and an assertion of a right to its benefits inconsistent with any theory other than accept ance. For damages for the taking of the land, therefore, an action at law was indicat-portation of traffic.' ed, and the statutes provide a method for their assessment. The fact that the parties have not as yet had the question of damages détermined does not affect the condemnation, and it is not within the power of a court of equity to deal with the matter. [2] "The bill apparently does not question this conclusion, but rather attacks the use to which the strip of land condemned is now being devoted. It is averred that the right to condemn does not contemplate a taking for the use indicated by the bill, but it fails to state in what respect the use is improper. It avers that the structure is a covered footwalk connecting the station of the railroad company at Chestnut street and the subway and elevated system of the Philadelphia Rapid Transit Company. If that is the purpose, it is not clear how that purpose brings the structure outside the provisions of the act of March 17, 1869 (P. L. 12), under which the land was taken. Under that act, the right is given to widen the line whenever it may be necessary for the better securing the safety of persons or property and increasing the facilities and capacity for traffic. In Dilts v. Railroad Company, 222 Pa. 516, 71 Atl. 1072, it was held that such an easement gave the right to exclusive possession, to fence in, to build over the whole surface, to raise and maintain any appropriate superstructure, including necessary foundations, and to deal with it within the limits of railroad uses as absolutely and as uncontrolled as an owner in fee. The averments of the bill do not show any facts from which we could conclude that the use to which the land is now being devoted is not within the [3] "We cannot entertain the bill. If the railroad has been in possession for more than six years under the condemnation, it cannot be ousted in equity. If complainant has any rights by reason of the use to which the strip is being devoted, the remedy is by ejectment. Peiffer v. R. R. Co., 12 Lanc. Law Rev. 265. [4] "The greater emphasis, however, is laid upon the averment of paragraph 12, in which it is alleged that the structure proposed will cut off access to that portion of complainant's property which lies between the western line of the railroad company's right of way and the bulkhead line of the Schuylkill river. This property to the west of the railroad appears by the plan annexed to the bill to be 77 feet wide at the south end and 48 feet wide at the north end and 453 feet long on the bulkhead line. The bill does not state that this property has been put to any use while in the possession of Mr. Elliott, or the complainant, or that any use is at present proposed. It does not aver that a crossing was had at any time since the railroad was built, or that the right to one was ever asserted. Neither is it averred that a crossing is now desired by complainant and denied by the railroad. The bill contents itself with the averment that access is cut off. "As we read the twelfth section of the act of February 19, 1849 (P. L. 79), it is clear that a railroad company may be required to maintain a crossing where it bisects the land of any owner, and for a failure so to do is liable to damages to be assessed as provided by the eleventh section. It is doubtful, the easement is acquired by deed, especially when the deed gives a right to 'free and uninterrupted' user, as is the case here, so far as relates to the original right of way. The new strip having been acquired under the act of 1869, it scarcely comes within the class of cases in which the land of an owner is bisected. The land on the other side of the strip is now held by the railroad under its deed, and the other property of complainant is west of the land covered by that deed. In addition, it must be noted that by the deed the railroad is privileged to erect on the original right of way structures which would make a crossing at grade impossible. "But, whether this fact is of importance or not, it is clearly provided in the act that if complainant is entitled to a crossing, and the right to it is denied, the complainant has a remedy at law. Dimmick v. R. R. Co., 180 Pa. 468, 36 Atl. 866. There is nothing in the bill which discloses any difficulty in erecting an overhead crossing, should complainant be entitled in law to have one, and, should the erection of one be attempted by complainant and resisted by the defendant, a situation would be presented which is not before us now. [5] "The bill must therefore be certified to the law side of the court." The United States Fidelity & Guaranty Company, surety on the bond to William T. Elliott, was made a party defendant, and filed an answer averring that it was not interested in the controversy; that it was not a proper party to the proceeding; and that the plaintiff had a complete and adequate remedy at law. The court dismissed exceptions to its order refusing application for a preliminary injunction and certifying the proceedings to the law side of the court. Argued before FELL, C. J., and MESTREZAT, ELKIN, STEWART, and MOSCHZISKER, JJ. Joseph B. Townsend, George Sterner, and William L. Nevin, all of Philadelphia, for appellant. W. B. Linn and H. B. Gill, both of Philadelphia, for appellee Schuylkill River East Side R. Co. Tustin & Wesley, of Philadelphia, for appellee Rodyhouse-Arey Co. PER CURIAM. The order certifying the cause to the law side of the court is affirmed, for the reasons stated in the opinion of Judge Ferguson. (244 Pa. 241) sion that the interest shall be paid without deduction for state taxes, are not exempted from 298), though they are held by savings instituthe state loans tax by Act May 1, 1909 (P. L. tions having no capital stock, and the railroad company is liable therefor. [Ed. Note.-For other cases, see Taxation, Cent. Dig. § 324; Dec. Dig. § 246.*] 2. STATUTES (§ 121*)-TITLE AND SUBJECTMATTER-EXEMPTION FROM TAXATION. The title of Act May 1, 1909 (P. L. 298), covers the matter contained in proviso 4, which directs that the act shall not exempt corporate bonds from taxation, though held by savings inbonds are issued free of taxes. stitutions without capital stock, where such [Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 146, 173, 174; Dec. Dig. § 121.*] Appeal from Court of Common Pleas, Dauphin County. Action by the Commonwealth against the Lehigh Valley Railroad Company. From judgment for plaintiff, defendant appeals. Affirmed. Tried by the court without a jury. Kunkel, P. J., filed the following opinion in the common pleas: "This is an appeal from the settlement of an account against the defendant company for tax on its loans for the year 1910. The case has been submitted to the court to be tried without a jury agreeably to the provisions of the act of April 22, 1874 (P. L. 109). There being no dispute respecting the facts, we find them to be as set forth in the defendant's requests for findings of fact filed herewith. Summarized they are as follows: "Facts. "On July 25, 1911, the account appealed from was settled against the defendant company for tax on its loans for the year 1910, in which account it was charged with a tax on $53,617,000 of indebtedness. The tax, after the allowance of commissions, amounted to $204,957.81, of which amount the defendant paid $180,000 and took this appeal from the balance of the account. The $53,617,000 of indebtedness taxed included bonds and notes held by savings institutions of this state having no capital stock to the amount of $4,598,000. These securities contained an agreement on the part of the defendant company that the interest thereon should be paid without deduction for any tax of any state, which the defendant company might be required to pay or to retain therefrom under present or future laws, and some of the securities contained an agreement in so many words that the defendant would pay the tax. The defendant contends that the indebtedness owned and held by savings institutions of this COMMONWEALTH v. LEHIGH VALLEY R. state having no capital stock is not subject CO. (Supreme Court of Pennsylvania. Feb. 16, 1914.) 1. TAXATION (§ 246*) - EXEMPTION - CORPORATE INDEBTEDNESS. to tax by virtue of the exemption contained in proviso 2 of the act of May 1, 1909 (P. L. 298). "Discussion. Bonds issued by a railroad corporation [1] "The questions presented by this ap free and clear of taxes, and containing a provi- peal relate to the validity and construction duty of returning and paying the tax as theretofore required by law. The relief or exemption which proviso 2 was intended to afford was for the benefit of the savings institution, and not for the benefit of the corporation issuing the securities. Legislative relief or exemption was intended to be afforded where such relief or exemption was necessary, and not where, because the debtor corporation had assumed the payment of the tax, or had issued its securities clear of or free from the tax, no relief was needed. It is quite clear to us that, although proviso 4 is awkwardly constructed, it intended to preserve the tax on corporate securities owned or held by savings institutions which had no capital stock, where, in and by the securities themselves, the institutions were already relieved, and needed no legislative exemption. The legislative intention to retain the tax is apparent, although it has been expressed by an indirect rather than by a direct declaration to that effect. of provisos 2 and 4 of the act of May 1, 1909 | therefore it provides that in such case the (P. L. 298). The act itself is an amendment corporation shall not be exempt from the of the tax legislation contained in the act of June 1, 1889 (P. L. 420), as amended by the act of June 8, 1891 (P. L. 229), and purports to relieve and exempt savings institutions having no capital stock from the loans tax therein provided. It is a re-enactment of the first section of the act of June 8, 1891, and imposes an annual tax of four mills on corporate bonds or securities held, owned, or possessed by corporations of this state or any other state, but declares by proviso 2 'that the provisions of this act shall not apply to building and loan associations or to savings institutions having no capital stock,' and by proviso 4 'that if at any time, either now or hereafter, any persons, individuals, or bodies corporate, have agreed or shall hereafter agree to issue his, their, or its securities, bonds, or other evidences of indebtedness clear of and free from the said four mills tax, herein provided for, or have agreed or shall hereafter agree to pay the same, nothing herein contained shall be so construed as to relieve or exempt him, it or them from paying the said four mills tax on any of the said such securities, bonds, or other evidence of indebtedness as may be held, owned by, or owing to the said saving institution having no capital stock.' It is manifest that the two provisos must be construed together, for proviso 4 directs that nothing herein contained shall be so construed as to relieve or exempt from paying the said four mills tax,' etc. It thus expressly refers to proviso 2, which grants the exemption, and plainly places a limitation on its construction and scope. * "The contention of the defendant company that a tax is imposed by proviso 4 on the corporation issuing the securities is untenable. The proviso does not impose any tax on corporate securities, but directs that the corporation shall not be relieved or exempt from paying the tax which it theretofore was required to deduct from the interest paid on its securities. The effect of the language used is to continue the tax on such securities, even though owned and held by savings institutions having no capital stock. Proviso 4, as we have said, appears to be an indirect way of declaring that the tax shall remain on "To understand the legislative intention the securities so held. A reference to the act expressed by the provisos, they must be con- of June 30, 1885 (P. L. 193), will show that strued in the light of the law as it stood proviso 4, when it declares that 'nothing hereat the time they were enacted. At that time in contained shall be so construed as to recorporate securities held and owned by sav-lieve or exempt' the corporation issuing the ings institutions having no capital stock were securities 'from paying' the four mills tax taxable annually at the rate of four mills, and such tax was required to be collected by the corporation issuing the securities. The act of June 30, 1885 (P. L.) 193, imposed upon the corporation the duty to deduct the tax from the interest on its indebtedness when it paid the same, and to return and pay the tax into the state treasury. If it willfully failed or neglected to perform the duty, it itself became liable for the tax. Com. v. Del. Div. Canal Co., 123 Pa. 594, 16 Atl. 584, 2 L. R. A. 798; Com. v. Lehigh Valley R. R. Co., 129 Pa. 429, 18 Atl. 406, 410; Com. v. Philadelphia & Reading R. R. Co., 150 Pa. 312, 24 Atl. 612; Com. v. Lehigh Valley R. R. Co., 186 Pa. 235, 40 Atl. 491. Proviso 2 of the act of May 1, 1909, relieves and exempts savings institutions having no capital stock from the tax; but in proviso 4 the Legislature recognizes the fact that such savings institutions may hold or own corporate securities containing an agreement on the part of the cor on the securities held, owned by, or owing to the savings institution having no capital stock, is but a recognition of the former's requirements with respect to paying, which are as follows: 'It shall be his further duty [the duty of the treasurer of the corporation issuing the securities] to deduct three mills [now four mills: Act of June 8, 1891 (P. L. 229); Com. v. Wilkes-Barre & Scranton Ry. Co.. 162 Pa. 614 (29 Atl. 696)] on every dollar of the interest paid as aforesaid and return the same into the state treasury,' and again, 'for every failure to assess and pay said tax,' and further, 'on payment of said tax.' It thus clearly appears that the tax which the corporation is not to be relieved of by proviso 4 from paying is the tax which it is its duty to collect and pay under the act of 1885. The proviso declares it shall not be relieved of that duty, and, if not relieved, it must be because the tax on the securities issued free and clear of tax is retained. The result of date in the proviso as to the construction of | thereon for the year for which this settlethe act, and to relieve from the tax only such ment was made. corporate securities owned by savings institutions having no capital stock as have been issued without any stipulation for the payment of the tax by the debtor corporations. "Conclusions of Law. "Applying the views we have expressed as to the construction and validity of the provisos to the act of May 1, 1909, we conclude: [2] "What we have said we think disposes of the defendant's contention that proviso 4 "(1) That the indebtedness of $4,598,000, is void, because no notice thereof is given in issued free and clear of tax, and owned by the title. If the interpretation we have savings institutions having no capital stock, adopted is the correct one, the title is wider is subject to the loans tax, and is not rein scope than the provisos. It purports to relieved or exempted therefrom by proviso 2 lieve and exempt wholly from the provisions of the act of May 1, 1909. of the act savings institutions having no capital stock; whereas, the construction we have placed on proviso 4 restricts the exemption in proviso 2 to such corporate securities owned and held by them as have not been issued free and clear of the tax. "It also disposes of the defendant's objection that proviso 4 attempts to enforce "(2) That the defendant company, ha ving failed to deduct the tax thereon when it paid the interest, is liable therefor. "(3) That the commonwealth is entitled to Less tax on bonds held by Har- the contract between it and the owners of its "The constitutionality of proviso 2 seems to be conceded, and it is not disputed that there is a recognized difference between corporate securities relieved by agreement of the parties from tax and those in which there is no agreement for relief. "The classification is not an arbitrary one, but one which actually exists in the business world. If the power exists to relieve savings institutions as a class from the tax on all their corporate securities, we cannot see how it may not be exercised so as to relieve them from the tax on some of their corporate securities; all members of the class being treated alike. "It appears in the case before us that the indebtedness on which the tax is sought to be recovered was issued by the defendant company free and clear of tax; it being provided in and by the securities that the interest should be paid without deduction for state tax. This stipulation in its usual and popular sense means that the securities should be free of tax so far as the holders The Interest from Sept. 25, 1911... Total amount due............. .... $53,617,000 00 $204,957 81 104 00 $204,853 81 180,000 00 $24,853 81 2,363 15 1,360 84 $28,577 80 "Accordingly we direct judgment to be entered in favor of the commonwealth and against the defendant for the sum of $28,577.80, unless exceptions be filed within the time limited by law." Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, and ELKIN, JJ. A. C. Stamm, of Harrisburg, and John G. Johnson, of Philadelphia, for appellant. William M. Hargest, Second Deputy Atty. Gen., and John C. Bell, Atty. Gen., for the Com monwealth. PER CURIAM. The judgment is affirmed on the opinion of the learned president judge of the common pleas. (244 Pa. 248) In re RUDMAN'S ESTATE. Appeal of BROWNE. (Supreme Court of Pennsylvania. Feb. 23, 1914.) 1. WILLS (§ 692*)-CONSTRUCTION-POWER OF siduary estate in trust for her married daughter ** to the terms of the will of Ann Rudman, she had no power to appoint, and the fund in question passed directly to her, Carlotta H. Browne, without regard to the trust created by the will of her mother. writing in the nature of a last will [Ed. Note. For other cases, see Wills, Cent. Dig. § 1654; Dec. Dig. § 692.*] 2. WILLS (§ 466*)-CONSTRUCTION "SINGLE" * * The following excerpts from the will of Ann Rudman state all that is necessary to an understanding of the present case: “All the rest * * * of my estate * * * I give, in a manner following, to witOne other full equal fifth part thereof unto Silas Yerks, Junior- * * * in trust to * income thereof * pay the unto my daughter Victoria A. Browne for her sole and separate use * * * during all the term of her natural life without the control or interference of her present or any future husband. And from and im * * * * * -UNMARRIED"-"DISCOVERT.' In a will authorizing any of testatrix's daughters who shall "be single and unmarried or shall be discovert" to bequeath the residuary estate left to them, the words "single" and "unmarried" were intended to express the same thought, but "discovert" had a wider ap-mediately after her decease, then in trust to plication, and introduced a new and different pay over the said one-fifth part of thought, and indicated a purpose to exclude any my said residuary estate unto all and every husband from participating in the estate. the child and children of my said daughter' [Ed. Note. For other cases, see Wills, Cent. Victoria A. Browne that shall then be living Dig. 985; Dec. Dig. § 466.* and the lawful issue of such of them as may then be deceased. * * And in case any of my daughters shall depart this life without leaving any child or chil* * * then from dren or lawful issue For other definitions, see Words and Phrases, vol. 7, p. 6520; vol. 8, pp. 7196, 7197.] Appeal from Orphans' Court, Philadelphia County. Adjudication in estate of Ann Rudman, deceased. From decree sustaining exceptions to adjudication, Carlotta H. Browne appeals. Affirmed. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, STEWART, and MOSCHZISKER, JJ. Harvey Gourley, John W. Brock, Jr., and Henry S. Cattell, all of Philadelphia, for appellant. I. Hazleton Mirkil and Franklin L. Lyle, both of Philadelphia, for appellee. MOSCHZISKER, J. [1] On this appeal but one point is presented for our determination, and that is correctly stated in the question involved, as follows: Whether the will of Ann Rudman vested in Victoria A. Browne a power of appointment in the one event of the latter's being single or discovert, or whether such power might be exercised by her only in the double event of being both without issue and single or discovert. * * * and immediately after the decease of such the lawful issue of such of them as may then be deceased. * * * Provided always * * that in case any of my * daughters shall be single and unmarried at the time, or shall be discovert, then and dur- Ann Rudman died November 20, 1881, leaving a will in which she provided for five children, including Victoria A. Browne, the mother of Carlotta H. Browne, the appellant. On the death of the testatrix, Victoria A. Browne was discovert, having been previously divorced from her husband; she died in December, 1912, leaving the appellant as her only child, and by her will she gave her entire estate in trust for the latter. Upon the [2] The court below decided that under the adjudication of the account of the trustees above will Victoria A. Browne, being discovunder the will of Ann Rudman, deceased, ert, had power to appoint the principal of Carlotta H. Browne claimed the estate here her share, notwithstanding the fact that she in question, absolutely and free of the trust left a child surviving, and awarded the fund sought to be created by the will of her moth- to her executors. In expressing the view of The appellant contends that, since Vic- the court, Lamorelle, J., states: "While it is toria A. Browne left a child surviving, under true * * 串 that a life estate is given to er. |