(231 Pa. 256) In re FREAS' ESTATE. Appeal of PHILADELPHIA TRUST, SAFE DEPOSIT & INS. CO. (Supreme Court of Pennsylvania. April 10, 1911.) 1. TRUSTS (§ 350*) -TITLE TO TRUST PROPERTY-OPTION OF BENEFICIARY. Where a trust company takes title to trust property in the name of its president and permits the latter's declaration of trust to remain unrecorded for four years, the beneficiary can accept the investment, or require the trustee to account for the purchase money, with interest. [Ed. Note. For other cases, see Trusts, Cent. Dig. §§ 515-519; Dec. Dig. § 350.*] 2. TRUSTS (§ 234*)-LOSS OF ASSETS-LIABILI TY OF TRUSTEE. Where the trustee, a corporation, had invested the trust money in a mortgage, and was compelled to buy in the mortgaged property at a loss, the fact that its president took title to the property in his own name will not make the trustee liable for the loss, or for delinquent taxes and liens which had accrued because of the sale, in the absence of evidence that the loss was due to the negligence of the trustee. [Ed. Note. For other cases, see Trusts, Cent. Dig. §§ 340-342; Dec. Dig. § 234.*] Appeal from Orphans' Court, Philadelphia County. In the matter of the estate of Philip R. Freas. From a decree sustaining exceptions to adjudication, the Philadelphia Trust, Safe Deposit & Insurance Company, trustee, appeals. Modified and affirmed. Argued before FELL, C. J., and MESTREZAT, POTTER, STEWART, and MOSCHZISKER, JJ. Charles Townsend and John G. Johnson, for appellant. Paul Reilly, James F. Friel, T. Truxtun Hare, and Henry B. Hodge, for appellee. MESTREZAT, J. This case arises out of the adjudication of the account of the Philadelphia Trust, Safe Deposit & Insurance Company, trustee for Imogen N. Freas, under the last will and testament of Philip R. Freas, deceased. paid the expenses of the sale and claims credit for them in the account. Forty-four days later, April 19, 1893, Mr. Du Bois executed and acknowledged a declaration of trust, wherein he stated that he held the premises as trustee for the trustee company for the purposes of the trust contained in the will. About four years later, on March 30, 1897, the declaration of trust was filed of record. Therefore, for a full period of four years, the trustee company permitted the record title of this property to remain in the name of its officer and agent, Mr. Du Bois, without any other earmark than the irregular declaration of trust retained among its own files. During the period, the trustee company collected the rents of the premises and charges itself with them in its account. It likewise expended various sums for maintenance and repairs, for which it claims credit. How the leases were drawn does not appear. The account included premises No. 3606 Melon street as an asset of the estate, and the legatee excepted and asked that $2,160.37 in cash be substituted as an asset, for the real estate; that being the amount represented by the property in the account. The legatee contends that the action of the trustee in having the title of the property taken in the name of another party was a breach of trust which gave the legatee the option to take the property, or require the trustee to account for the mortgage debt, with interest. The auditing judge overruled the exception and directed a transfer of the property by the trustee to the managers for the relief and employment of the poor of the township of Germantown, the legatee and party entitled to the property or the cash substituted for it. The ruling of the auditing judge was re versed by the court in banc, and the sum of $2,160.37, with interest, was substituted for the Melon street property. We have this appeal by the trustee. [1] For more than half a century this court has invariably held that, where a trustee takes title to trust property in his own name as an individual, the cestui que trust has the option to accept the investment, or require the trustee to account for the purchase money, with interest. This rule has never been departed from, and the decisions dealing with the subject give ample reasons for sustaining and enforcing it. The cases on the subject are numerous, and all announce the same doctrine. We need not, therefore, discuss the question, as it is the settled law of the state, and we now see no reason for departing or deviating from it in any manner whatever. The learned court below was clearly right in enforcing the rule in this case. The facts of the case, as found by the learned court below, may be summarized as follows: On February 16, 1887, the trustee invested $1,800 of the trust funds in a bond and mortgage secured upon premises 3606 Melon street, Philadelphia. It took the security properly in its own name as trustee. Subsequently the trustee foreclosed the mortgage and, on March 6, 1893, authorized or permitted the sheriff to make a deed for the property to William L. Du Bois, then an officer and since the president of the company. The consideration of the deed was [2] But we cannot agree with the court's $1,500, being the amount bid by Mr. Du Bois at the sheriff's sale. This consideration, however, was never paid in fact. The trustee conclusion as to the amount for which the trustee should account. The loan was made by the trustee on a bond and mortgage taken For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes in its own name. It became necessary to foreclose the mortgage in order to collect the loan. Thus far the trustee had acted properly and in the line of its duty. There is no allegation that it had acted in bad faith, or, so far as the testimony discloses, it does not appear that the trustee did not believe the property to be ample security for the loan at the time it took the mortgage. The evidence does not justify the court in holding that there had been any dereliction of duty on the part of the trustee in making the loan, in securing it by the bond and mortgage, or in foreclosing the mortgage. If the sheriff had conveyed the property to the trustee, instead of a third person, we think there would en. be no evidence to show that the trustee had not performed its duty throughout the transaction. The orphans' court very properly held that the sheriff's title should have been taken in the name of the trustee, and that it was not so taken is the only error which the trustee made and for which it is responsible in this proceeding. It should, therefore, account, not for the amount of the mortgage and its interest, but for the value of the property which was given to secure the loan and on which the mortgage was takThe property was sold at the sheriff's sale for $1,500, $300 less than the face of the mortgage. It does not appear that there was collusive bidding, or that this was not a fair price for the property at the time of the sale. In the absence of anything to the contrary, we must presume that such is the case. There is no evidence that would warrant any other conclusion. If such evidence had been produced, and it had appeared that the property was more valuable, or that a greater sum was not obtained for it by reason of the conduct of the trustee, the latter would be held to account for its full valWe, therefore, think the court was in error in allowing the legatee the amount of the mortgage, with interest, and should have allowed it the price at which the property was sold, with interest. ue. The trustee having acted in good faith and having performed its duty up to the time of the sale of the property, we can see no reason for charging it with the delinquent taxes, liens, and expenses of sale. They were not incurred by reason of the trustee's failure to take the sheriff's title in its name. That failure of duty in no way affected the expenses of foreclosing the mortgage. Had the title been taken in the name of the trustee, the taxes, liens, and expenses of foreclosure would unquestionably have been paid out of the trust estate. The subsequent error in taking the title in the name of the third party affords no sufficient reason for imposing those expenses on the trustee. For the reasons stated, we must sustain the assignments of error to the extent indicated. The trustee should be charged with $1,500 and interest, and $91.75 for permanent improvements, and allowed a credit for $268.62, the amount of the delinquent taxes, liens, and costs. With this modification, the decree of the court below is affirmed. (231 Pa. 277) MINT REALTY CO. v. WANAMAKER. (Supreme Court of Pennsylvania. April 10, 1911.) MUNICIPAL CORPORATIONS (§ 697*) - INJURIES -ENCROACHMENT ON STREET-INJUNCTION. The construction of a cornice extending about eight feet from the building line over a highway 28 feet wide between building lines will not be enjoined, where defendant's building is 247 feet high, while plaintiff's building is only 55 feet high, and the answer avers the universal custom in the city to construct a cornice as part of the design of any building fronting on a public highway, determined by height and design of the building, and that plaintiff itself had encroached on the street with the cornice of its own building to the extent proportionate to its height. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1502-1505; Dec. Dig. § 697.*] Appeal from Court of Common Pleas, Philadelphia County. Bill by the Mint Realty Company against John Wanamaker. From a decree dismissing the bill, plaintiff appeals. Appeal dismissed. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, STEWART, and MOSCHZISKER, JJ. Morris Wolf and Horace Stern, for appellant. John G. Johnson and James Wilson Bayard, for appellee. STEWART, J. The appellant is the equitable owner of a lot of ground in the city of Philadelphia situate on the northwest corner of Chestnut and Juniper streets, extending northward along Juniper street to Penn square, having thereon erected a building 55 feet in height, covering the entire lot. The appellee is the owner of a larger lot on the northeast corner of Chestnut and Juniper streets, extending northward along Juniper street and Penn square to Market street, upon which he has erected a building covering the entire lot, 247 feet in height. From the top of the latter's building, on each side, a cornice projects 7 feet and 10 inches from the building line. We are concerned with only that part of the cornice that projects over so much of Juniper street as bounds appellant's lot. In the bill filed in the case, appellant sought to enjoin the appellee from constructing the cornice, on the ground that Juniper street, having a width of only 28 feet between building lines, such a cornice as that contemplated by appellee would, to a serious extent, deprive appellant and his tenants of the light and air to which they are en Vt.) ALLEN v. LANE 515 titled, and result in serious injury, incon-sult to him, were he to be enjoined against venience, and depreciation in value of com- completing his building in accordance with plainant's property. The answer, filed dur- plans designed by his architects, and approving the course of erection of appellee's building, admitted that it was appellee's purpose to construct thereon such cornice as was described in the plaintiff's bill; averred that it was with the approval and consent of the municipal authorities, that a less projection would not accord with the size and height of the building contemplated; and denied that the proposed cornice would result in the injury, inconvenience, and depreciation in value of plaintiff's property as claimed in the bill. The case was heard on bill and answer, the injunction prayed for was refused, and the bill dismissed. The appeal by plaintiff from the decree is now before us. It calls for but little discussion. If the projection complained of be an unlawful encroachment upon Juniper street, a public thoroughfare of the city, it is a nuisance per se, and one public in its character, which, upon information by the Attorney General, or at the suit of the municipality, would be enjoined against as an unwarranted invasion of public rights. Except as the appellant can show that in consequence of the projection it will suffer a special injury, separable from and in addition to that which inconveniences the general public, it can have no standing as a suitor to complain. It is not enough that it is alleged in the bill that special injury will result. The restraining arm of the court will be extended only as it is made to appear to the satisfaction of the chancellor that special injury, substantial and irreparable, is being attempted. The burden of showing this rests on the complainant always. Here plaintiff rested on such averments in its bill as were not specifically denied in the answer; that is to say, that the defendant had in course of erection on his own lot a building of unusual proportions, and contemplated capping it with a cornice which would project little short of 8 feet on Juniper street, a street 28 feet in width. So much was admitted in the answer; but every other material averment was in the answer specifically denied, including that of special injury and inconvenience. Could a chancel ed by the municipal authorities. The answer avers a universal custom in Philadelphia to construct, as part of the architectural design of any building fronting on a public highway, a projecting cornice, the extent of the projection being determined by height and design of the building, and that complainant itself has, in accordance with this custom, encroached upon Juniper street with the cornice of its own building to the extent proportionate to the height. While it is the circumstance of special, substantial injury that controls in all such cases, yet, when the basis of the complaint is such special injury resulting from an encroachment upon a public highway, and the party complaining is itself guilty of like encroachment upon the same highway, and at the same point, differing only in extent, the evidence of special injury should be convincing to a degree not required when the complainant party itself stands clear of all misdoing. The averment in the answer that defendant's cornice conforms to general custom, not denied, was properly allowed significance, not as controlling the case, but as an admitted fact calling for consideration. We can do no better in this connection than repeat what was said by Sharswood, J., in City of Philadelphia's Appeal, 78 Pa. 33: "We concede that no usage, however long continued, will justify an encroachment great or small upon a public highway. But, in the exercise of that sound discretion with which a chancellor is invested, he may well consider and give effect to such an usage as rightfully persuasive to arrest his interposition by the writ of injunction. Otherwise he might be made the instrument of very gross injustice. Courts of equity are not instructed in general to enforce abstract legal rights. There must be substantial, irreparable injury attempted." As we have already said, such injury must be made clearly to appear. In the present case the learned chancellor could not derive, from what he had before him, a conclusion that the complainant was threatened with special, substantial, and irreparable injury. No more can we. The injunction asked for was properly refused. The appeal is dismissed, at cost of appel lant. lor, with nothing before him but these admitted facts, conclude from them, and them alone, that a cornice projecting 7 feet and 10 inches from the top of a building 247 feet in height would work a substantial interference with the light and air of a building nearly 200 feet below, and which, even if elevated to an equal height-in regard to which no present purpose was declared-would be 20 (Supreme Court of Vermont. Orleans. March ALLEN v. LANE. (84 Vt. 323) feet away from the extremest part of the 22, 1911.) cornice? Even to doubt with respect to this ANIMALS (§ 44*) - INJURING ANIMALS - EVIwould be to resolve the case against the DENCE. In an action for mutilating the tails of plaintiff, in view of what defendant averred plaintiff's horses in February, where defendant as to the serious consequences that would reclaimed that the damage was done by calves kept in the barn with the horses, evidence that the calves were in the barn in April or May was inadmissible; there being no evidence that the calves were born on the place, or as to when or whence they came, and it further appearing that they were so tied that they could not have reached the horses. [Ed. Note. For other cases, see Animals, Cent. Dig. § 119; Dec. Dig. § 44.*] Exceptions from Orleans County Court; E. L. Waterman, Judge. Action by Frank Allen against Thomas Lane. Judgment for defendant, and plaintiff excepted. Reversed and remanded. Argued before ROWELL C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ. Young & Young and J. W. Erwin, for plaintiff. Williams & Dane and E. A. Cook, for defendant. POWERS, J. This is an action of trespass for mutilating the tails of the plaintiff's horses. The plaintiff testified that on the 14th day of February, 1908, he caught the defendant, who was his hired man, cutting off the tails of these horses. The defendant was not present at the trial; but the theory of his counsel was that the damage was caused by two calves, which the plaintiff kept tied in the horse barn, and not by act of the defendant. Numerous exceptions were taken to the admission of evidence; but the only ones we regard of sufficient importance to merit special consideration are those to the admission of the evidence regarding the calves just referred to. Subject to these exceptions, the defendant was allowed to show that about the 1st of April and about the 1st of May of that year the plaintiff kept two calves, from two to six months old, tied in the same stable where the horses were. plaintiff's story. The character of the act charged to the defendant was such that it would be expected to stir the indignation, if not arouse the anger, of the most mild-tempered man. Yet, in the face of this outrage, though the defendant (if the plaintiff is to be believed) had spoiled the beauty of this splendid team and caused him $100 damage, the plaintiff did not turn him off or make him trouble, but kept him there, apparently on friendly terms, until about the 1st of March, when the record shows "the defendant left the plaintiff's place." The latter did not then seek redress. It was not until after the defendant sued him which was about May 1st according to the officer who served the writ-and about June 1st that suit was begun to recover the damages so maliciously inflicted. The defendant was not confined to evidence of conditions which existed on the plaintiff's date. He was at liberty to show, if he could, that the damage was done by the calves, and not by him, and that it was done at some other time, and not on February 14th. But the more serious trouble with this evidence is that it does not appear that the calves were ever near enough to these horses to do the damage complained of. The horse stable was 24 feet long. Four single stalls and one box stall stood along one side. These horses stood in the two single stalls nearest the door. The calves were tied at the other end of the stable. The only witness who speaks on that subject says one was tied with a rope 6 feet long. In this situation, of course, they could not by any possibility or at any time reach these horses. There was no evidence that they were ever loose, and the jury had no right to assume that they were. Without more, the mere fact that the calves were tied in the far end of that stable was immaterial and inadmissible. It must have been harmful, for it was all there was, save the circumstances referred to, on which to predicate a defendant's verdict. Reversed and remanded. (84 Vt: 321) WHITEHEAD . WHITEHEAD. (Supreme Court of Vermont. Franklin. March The admission of this evidence cannot be sustained. In the first place, as urged by the plaintiff, it cannot be said, in the circumstances shown by the record, that the mere fact that these calves were in the horse barn in April or May has any tendency to show that they were there in the February before. The defendant's argument is that the ages of the calves tends to show this fact. But it does not appear that they were born on the place, nor is there anything to show when they came or whence. But this objection is not necessarily determinative of the admissibility of the evidence. The date referred to, February 14, 1908, was the one given by the plaintiff as the one on which the injury was inflicted. But the jury was not bound to accept this as the true date. It was no more bound to accept the plaintiff's testimony as to the date than it was to believe his statement that he saw the defend- 2. APPEAL AND ERROR (§ 931*)-PRESUMPTIONS 22, 1911.) 1. EVIDENCE (§ 14*)-JUDICIAL NOTICE-MENTAL SUFFERING AS AFFECTING HEALTH. It is not so inevitable that the husband's knowledge of his wife drifting into a life of adultery will cause him sufficient mental suffering to injure or threaten his health that the court will take judicial notice that it will. [Ed. Note. For other cases, see Evidence, Dec. Dig. § 14.*] -FINDINGS BY COURT-INFERENCES. ant doing the act. There was quite enough before the jury to arouse suspicion of the The appellate court will not presume that the trial court made certain inferences, where this would result in reversal, but will so pre-fusual manner. But the trial court expressly sume only in aid of the judgment. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3728, 3762-3771; Dec. Dig. § 931.*] 3. DIVORCE (§ 27*)-GROUNDS-INTOLERABLE SEVERITY-INJURY TO HEALTH. From the finding, in a suit for divorce for intolerable severity, that the husband's knowledge of his wife's infidelity caused him great mortification, and that he was thereby deprived of his rest, and could not attend to his work in the usual manner, it cannot be said that injury to his health is to be apprehended; it appearing that he lived with her for years after knowledge of her misconduct, and for months after learning of the full extent thereof, and it not appearing that he was unwilling to continue to live with her, but that she finally left him. [Ed. Note. For other cases, see Divorce, Cent. Dig. §§ 62-83; Dec. Dig. § 27.*] Exceptions from Franklin County Court; Willard W. Miles, Judge. Action by Orrin R. Whitehead against Clara G. Whitehead. Judgment of dismissal, and petitioner excepts. Affirmed. Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ. W. B. Locklin, for petitioner. POWERS, J. The law of this case is all to be found in Mathewson v. Mathewson, 81 Vt. 173, 69 Atl. 646, 18 L. R. A. (N. S.) 300. It is there held that intolerable severity may be established in divorce proceedings by proof of any line of misconduct persisted in by the offending party to such an extent as to cause or threaten injury to the life, limb, or health of the other, and that it is not necessary that such injury, actual or threatened, should be the direct result of such misconduct, but that it is sufficient if it is produced by grief, worry, or mental distress occasioned thereby. [1] It is also there held that, when the facts and circumstances are so decisive of actual or apprehended bodily harm resulting from mental suffering that there can be no difference of opinion about it, the court may take judicial notice thereof; otherwise, such essential fact must be found in order to warrant a decree of di vorce. All this the petitioner admits, and he insists that he has brought his case within the rules thus established. He says that when a wife drifts into a life of adultery, and knowledge thereof is brought home to the husband, but one result can follow. His home life is thereby rendered intolerable, and sufficient mental suffering caused to injure, or at least threaten, his health, and that this result is so inevitable that we should, if necessary, take judicial notice of it. We cannot adopt this view. The only finding here is that the petitioner's knowledge of his wife's infidelity caused him great mortification, and that he was thereby broken of his rest and could not attend to his work in the reports that it is unable to find that his health is injured thereby. [2] Nothing is said about any threatened injury to his health, and, of course, we cannot presume that the court below made any such inference; for to do so would result in a reversal, and the rule is that such presumption will only be indulged by this court in aid of the judgment below. Sowles v. St. Albans, 71 Vt. 418, 45 Atl. 1050; Russell v. Davis, 69 Vt. 275, 37 Atl. 746; Callanan v. Powers, 199 Ν. Υ. 747, 92 Ν. Ε. 747. [3] Nor can we say from the findings that injury to the petitioner's health is to be apprehended; for it appears that he lived with the woman for some years after he knew of her misconduct, and for some months at least after he learned the full extent of it, and for aught that appears he was willing to live with her right along, but finally she left him. In the circumstances reported, it cannot be said that his mental distress was of such a character that it must necessarily result in physical injury. Affirmed. (76 Ν. Η. 60) CANNEY v. ROCHESTER AGRICULTUR AL & MECHANICAL ASS'N. (Supreme Court of New Hampshire. Strafford. March 7, 1911.) 1. MASTER AND SERVANT (§ 315*)-INDEPENDENT CONTRACTOR-LIABILITY OF MASTER. An association conducting a fair contracted with a third person for a daily balloon ascension. The third person should furnish the balloon, which was to be abandoned in the air when the operator made his descent. The balloon would find its way to earth at some point within half a mile of the point where it was abandoned, and the association should furnish a team to haul it back to the fair grounds. The association knew that the balloon might go in any direction; its course being determined by the air currents. There were several highways within a radius of a half mile of the place of ascension, where persons were likely to be traveling. The association took no precaution to warn such travelers, and while a traveler was driving on a highway the abandoned balloon descended on her wagon, causing injuries. Held, that the association could not avoid responsibility on the ground that the third person was an independent contractor. [Ed. Note. For other cases, see Master and Servant, Dec. Dig. § 315.*] 2. EVIDENCE (§ 127*) -RES GESTE-EXPRESSIONS OF PAIN-ADMISSIBILITY. The conduct and expressions of one suing for a personal injury, indicative of the condition of her mental or bodily health at the time, are competent evidence on that subject. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 377-382; Dec. Dig. § 127.*] 3. HIGHWAYS (§ 210*)-ACCIDENTS FROM SIMILAR CAUSE. In an action against an association, con ducting a fair and providing for a daily bal loon ascension, for injuries to a traveler on a highway, caused by the abandoned balloon descending on her, evidence that at former exhi |