(Downing, et al. vs. Hart.) It is now contended on behalf of the executor that the testator intended to limit or restrict the use of the Seventh Street property by Natalie W. Downing "for a home" and she has no right to sell it, but must occupy it as a home, although she is charged with fifteen thousand ($15,000) dollars, the full value of it, in her distributive share in the estate. In our opinion, there is no condition annexed to the gift of the house and lot on Seventh Street, by the addition of the words "for a home." It seems too vague and uncertain to be considered in that connection. It is exclusively for the benefit of Natalie W. Downing-no other person has any right or interest in the same. In delivering the opinion of the Court in Beck's Appeal, 46 Pa. 527, Read, J., says on page 532: "So when words are too indefinite to create a trust, the absolute property is vested in the legatee. So in cases where words are added, expressing a purpose for which the gift is made, and where the purpose of the gift is the benefit solely of the donee himself he can claim the gift without applying it to the purpose, and that it is conceived whether the purpose be in terms obligatory or not. Thus, if a sum of money be bequeathed to purchase for any person a ring, or an annuity, or a house, or to set him up in business, or for his maintenance and education, or to bind him apprentice, or towards the printing of a book, the profits of which are to be for his benefit, the legatee may claim the money without applying it or binding himself to apply it to the specified purpose, and this even in spite of an express declaration by the testator, that he should not be permitted to receive the money. 1 Jarman on Wills, 3rd. Ed. 1861, page 367." Keene's Estate, 11 C. C., page 195. In the recent case of Schultz vs. Grove, 70 Superior Court, page 494. it is held that "A grant declared to be for a special purpose without other words, cannot be held to be a condition." It is a familiar rule that a deed or grant must be construed most strongly against the grantor (Klaer vs. Ridgwav, 86 Pa. 529). Applying this principle to the gift in question, will give Natalie W. Downing the fee simple in the land. It would seem that if the construction can be placed upon this gift as claimed by the executor, it is a restriction upon the alienation of the land, which is well settled as void and against public policv. and in the construction of the will, must be eliminated. McCullough vs. Gillmore. 11 Pa., page 370. Walker vs. Vincent, 19 Pa., page 369. (Downing, et al. vs. Hart.) It does not seem reasonable to suppose that the testator intended to compel Natalie in the case of her marriage, to occupy the Seventh Street property as a home until the end of twenty-one years after his death, or be deprived of the use of the same. This would be the effect of the construction of the will as now claimed by the Executor, as it appears from the deed made to her that she is now a resident of Schenectady, N. Y. It further appears that the testator intended that Natalie should have the fee simple title in the property, as in section eleven of his will he provides inter alia, "shall be deemed to include the allowance for marriage outfits that may have been made to my granddaughters Isabella Hunter and Natalie W. Downing, and the amount that may have been advanced to my son, Frederick B. Downing, in pursuance of the provision of section nine of this will; and the value of the Seventh Street property, in case same shall be deeded to my granddaughter, Natalie W. Downing, shall be divided into six parts. It will be observed that there is included in this balance the value of the Seventh Street property in case the same is deeded to my granddaughter, Natalie, and not the property itself, and that this value is placed in the same class as the advancement to Frederick B. Downing; and in our opinion he intended it to be an advancement to her as a part of the portion of the estate that would be coming to her on making the final distribution thereof. In Hart vs. Downing, 70 Superior Court, 105, it is held in relation to this transaction that the contention that the granddaughter might sell the house, and in case of failure of issue, reduce the distributive estate, thus producing an inequality, is untenable. How much more could the other children and grand-children reduce the distributive estate in case they died without issue, having expended the sums given them on advancement; thus confirming our opinion that it was intended by the testator as an advancement. We cannot agree with the contention that Natalie W. Downing is prohibited from selling and conveying the land by the terms of the eleventh section of the will, wherein it is provided that "prior to the time fixed for the final distribution of the principal of my estate, the title to the whole of said estate, (so far as my executor shall not have disposed of the same), shall be and remain vested in my executor in trust aforesaid, and no part of it or interest in either the income or principal thereof shall be assignable by any legatee, devisee or beneficiary hereunder, nor shall the same be subject to encumbrance or conveyance by any one other than by * * * * the said executor and any beneficiary hereunder who shall attempt to assign, convey or encumber any interest devised or bequeathed hereby, shall by said act forfeit such interest, (Downing, et al. vs. Hart.) and the same shall thereupon go to the remaining beneficiaries hereunder." It will be observed that this applies to the estate of the testator "so far as my executor shall not have disposed of the same." If we are correct in our opinion, as hereinbefore stated, the executor has disposed of the Seventh Street property to Natalie W. Downing as authorized in the will, and has no title thereto, and this provision in the will has no application thereto; and in our opinion Natalie has the same right to convey the property as any other holder of the fee simple. Neither can we agree with the contention that Natalie D. Hart has forfeited all the right to any interest in the estate of the testator by joining with other legatees in proceedings in the Orphans' Court, for the removal of the executor, on account of his alleged conduct in the waste and mismanagement of the estate of the testator. This contention is founded on the eleventh section of the will namely: "and I especially direct if any beneficiary in this my last will and testament shall undertake to contest or break this will, or shall institute proceedings to have the same declared invalid, or shall assist or contribute towards any proceedings by any other person, he or she shall thereupon forfeit any right to any income and principal thereunder; and his, her, or their shares shall go to the remaining beneficiaries thereunder, whether such contest if undertaken, be successful or not." In our opinion, the parties were acting within their rights in the proceedings, which are authorized by the fifty-third section of the Act of June 7, 1917, P. L. 518, known as the Fiducaries Act. In doing so, they were not seeking to contest or break the will, but were acting in affirmance of it to protect their interest in the estate. That there was a foundation for the application for the removal of the executor would seem to appear from the statement of Judge Criswell in his opinion in refusing the prayer of the petition, in which he says, "True it is that the testimony of the respondent on cross-examination discloses facts relative to the transaction quite exceptional in character, which reasonably give rise to question, if not grave suspicion." The executor is given extensive powers in the will, in the administration of the estate, but we can find no authority for him to waste or mismanage the estate. It would seem that the legatees and devisees named in the will would be in an unfortunate situation if they were compelled to remain quiescent and permit the executor to waste and mismanage the estate at his pleasure. In the second section of the will the decedent gives the rest, residue and remainder to his executor, "subject to such conditions or reservations as are hereinbefore named." In the third section of the will, in which he gives his executor authority to sell and convey his real estate, it is made "subject to the provisions hereinbefore mentioned" and he is directed to manage said estate according to his best judgment and ability, "subject only to such special directions as may be contained in this will." It would seem that the direction authorizing the transfer of the Seventh Street house and lot to Natalie W. Downing may reasonably be construed to be a "condition or reservation" or a special direction in relation thereto, and that the executor can have no other or further control of that property; especially after having exercised the authority to convey to Natalie W. Downing. For the reasons heretofore set forth, we are of the opinion that the Cefendant, Natalie D. Hart, is the owner in fee simple of the house and lot on Seventh Street in the City of Erie, conveyed to her by I rederick B. Downing, Executor of the will of Jerome Francis Loning, deceased, and that judgment should be entered in her favor. And now, March 4, 1919, the Prothonotary is directed to give notice of this decision to the parties or their attorneys, and if no exceptions are filed thereto within thirty days after service of such notice, judgment shall be entered by the Prothonotary in favor of the defendant. LORENSON, PLAINTIFF IN ERROR, V. SHOCK. Justice of Peace-Jurisdiction-Trespass vi et armis. The owner of an automobile negligently drove the same against a pedestrian. HELD, That trespass vi et armis lies and a justice of the peace has jurisdiction. Certiorari to Alderman, ex-officio, J. P., No. 224 May Term, 1917, C. P. Erie County. A. P. Howard for Plaintiff in Error. L. F. Perry for Defendant in Error. WHITTELSEY, J., August 16, 1917. This is a writ of certiorari directed to Frank J. Bassett, alderman of the Third Ward, Erie, Pennsylvania, commanding him to send up his records in the above entitled case. It appears that the certiorari was issued on the 6th day of Lorenson, Plaintiff in Error, v. Shock. April, 1917; it also appears from the transcript of the magistrate that judgment was entered in favor of the plaintiff against the defendant on February 23rd, 1917. More than twenty days have elapsed between the entry of judgment and the issuing of the certiorari. The only question, therefore, that can arise is as to the jurisdiction of the justice, viz., was the judgment rendered in a court that had jurisdiction of the cause of action? The distinguishing criterion between trespass vi et armis and trespass on the case is where the injury is the immediate consequence of an unlawful act trespass vi et armis lies; where the injury was consequential or collateral trespass on the case is the remedy. * "If an injury be done by the act of the party at the time, or he be the immediate cause of the injury, though it happen accidentally, or by misfortune, he is answerable in trespass. The distinction in this form of suit, has not turned either on the lawfulness of the act, from whence the injury happened, or on the design of the party doing it, to commit the injury; but on the difference between injuries direct and immediate, or mediate and consequential; in the one instance the remedy is by case, in the other, by trespass." Phil. G. & N. R. Co. v. Wilt. 4 Wharton 142. Force of the party whether done wilfully or negligently. Strohl v. Levan, 39 Pa. 177 (page 185). "On certiorari to a justice of the peace, his record of a cause in which he had entered judgment for plaintiff was; 'Plaintiff brings suit against defendant for driving his horse and carriage into the buggy of the plaintiff on the public road. Claim of plaintiff, $5 damages. 'Held that the injury was one for which trespass vi et armis was the proper form of action, and proceedings affirmed.' " 50. * * Connelsville Grocery Co. v. Springer, 1 Pa. Justices' L. R. Pepper & Lewis Digest, Volume 21, page 37366. |