was accepted by the defendant company on September 20, 1899.

"(4) The defendant company, subsequent to the enactment and acceptance of said ordinance, located and constructed its railroad through the borough of Beaver, along and upon Fifth street, one of the "common highways" of said borough (laid out and dedicated in pursuance of the provisions of the act of 1791, supra) longitudinally, in the center of said street, and at grade therewith the whole length of said street, to wit, a distance of about 3,800 feet, which said street is intersected and crossed by several streets, viz., Buffalo street, Market street, Elk street, Branchbank street, Beaver street, and Mercer road, upon which several streets or roads, as well as upon Fifth street, there is comparatively little travel.

"(5) The construction of the said railroad on Fifth street was commenced in the latter part of October, 1903, and completed about June 1, 1904, since which time it has been in active operation. In the construction of its railroad the defendant company expended about the sum of $130,000.

"(6) Between the date of the commencement of the construction of the railroad and the date of its completion the borough of Beaver and several abutting property owners filed injunction bills to restrain its construction on Fifth street, which several proceedings were duly dismissed; and on September 25, 1905, the present bill was filed.

"Discussion.

"The question to be determined in this case is: Has the Beaver Valley Railroad Company, a corporation duly incorporated under the act of assembly approved April 4, 1868, the right to occupy Fifth street, in the borough of Beaver, longitudinally with its railroad as constructed and for some time past operated thereon?

"It is not disputed that the railroad company is occupying Fifth street with the consent of the borough authorities, and in accordance with the terms of the ordinance granting it permission so to do.

"It cannot be questioned, under the numerous decisions of our appellate courts, that a highway is the property of the public, not of a particular district, but of the whole state, who may dispose of it by their representatives and at their pleasure, and in which no person, natural or corporate, has any exclusive interest unless it has been granted by the statute. Philadelphia v. Trenton R. R. Co., 6 Whart. 25, 36 Am. Dec. 202. The right of the supreme legislative authority to authorize the building of a railroad on a street or other public highway is not to be doubted. Commonwealth v. Erie & North-East R. R. Co., 27 Pa. 339, 67 Am. Dec. 471. "The power of the Legislature to authorize the building of a railroad upon a public road is undubitable. To the

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ery highway within its limits as trustee of the public. Every public road therein exists by force only of the commonwealth's authority.' Danville, etc., R. R. Co. v. Commonwealth, 73 Pa. 29.

"The principle of law supported by the above authorities is not denied, but it is suggested that Fifth street is peculiar in its relation to the commonwealth, in view of the fact that it was dedicated as a 'common highway' under and in pursuance of the act of 1791, supra. We fail to see how this fact can in any wise interfere with the operation of the admitted general principle of law that the sovereignty of public roads remains in the commonwealth. The fact that the commonwealth has dedicated the street in question to public use does not lessen its control over it or prevent it from exercising the same sovereignty it admittedly would have if the street had been dedicated by some one else. We can see no force in this suggestion.

"The rights of railroad companies incorporated and organized under the provisions of the act of April 4, 1868, to occupy public highways longitudinally, have been so well settled by our appellate courts that any attempt on our part to discuss this right would be an affectation of learning and research. In the Appeal of Philadelphia, Germantown & Norristown Railroad Company, 2 Walk. 291, a proceeding in equity brought to restrain a railroad company, formed by the consolidation of several companies incorporated and organized under the general railroad laws of this commonwealth, from laying its tracks upon Lafayette street, in the borough of Norristown, longitudinally, the president judge of the court below, on a motion to continue the injunction, dissolved it, referred the case to a master, who submitted a report thereon, in which he adopted the views expressed by the court in its refusal to grant the preliminary injunction, which report, upon exceptions, was duly confirmed, whereupon the complainant appealed to the Supreme Court, who affirmed the decree of the court of common pleas in the following per curiam opinion: "The sole contention is as to the right of the appellee to construct its road on Lafayette street in the borough of Norristown. The appellants own lots fronting on the street. They have no greater right than any private person owning a lot fronting thereon has to prevent the construction of the railroad. No question as to the measure of damages or giving security for the payment thereof arises. They are out of the question. The municipal authorities have given their permission to lay the track on the street. It is in the line of the corporate franchise of the appellee. Under these facts the right to lay it is too well sustained by the authorities to be successfully questioned.' Mr. Justice Trunkey, in Penna. R. R. Co.'s Appeal, 115 Pa. 514, 5 Atl. 872, says: 'A company organized under the general stat

is as follows: "To my beloved wife, Hannah Wiley Dull, I give, devise and bequeath the furniture, pictures, household goods, horses, carriage, and house and lot in which we now reside, to have and to hold and enjoy as long as she may desire to live there, after which time I direct that they be disposed of by my executors and become part of my estate. I also direct the legal share of my real estate and personal property to be paid to my said beloved wife as her share out of my estate." By the next succeeded item a legacy of $1,500 is given to a relative, and immediately following occurs this residuary clause: "All the balance of my estate I devise to my three sisters, Mrs. Hannah Criswell, Mrs. Nancy Macklin and Mrs. Margaret Horning, or their heirs, share and share alike, to be paid by my executors as hereinafter named." What is given the widow is her "legal share." These words, standing alone and unqualified by other expressions and provisions in the will, would indicate with much certainty-there being no children -an intention that she should take one-half of the personal property absolutely, and the income of one-half of the real estate during life. Since the law seeks to give effect to the testator's intention as derived from the whole will, the inquiry must be to discover whether any other or different purpose is elsewhere expressed, or indicated with equal or greater certainty. The will contains a positive, express, and unconditioned direction to the executors to dispose of all the balance of the estate within three years after the testator's death. This balance evidently embraced all the real estate owned by testator at the time of his death, even the house and lot devoted to the widow's use, in the event of her occupancy of it terminating within the period fixed. It is designated as balance, for the reason that in an earlier part of the same clause testator had directed that a certain sand property of large value should be retained and operated by the executors for a period not exceeding five years. This property the testator sold in his lifetime; but it having been set apart in the will from the rest, since it was the only piece of real estate thus distinguished, the direction to sell included all else.

What, then, is the legal significance of this direction to sell or dispose of all the testator's real estate; and how does it reflect the testator's intention with respect to the share of the widow? The right of a testator to make land money, to effect his own purpose, is unquestionable; and it follows from this right that persons claiming property under a will directing its sale must take it in the character which the will imposes on it. This results not from the application of any artificial rule, or any equitable doctrine, but solely because it is the testator's expressed desire. How could a testator make it more certain and conclusive that he did not in

than by directing its sale? In such case it is not the law that works the conversion, but the will that directs it. The law sometimes employs a fiction in aid of a testator's intention, and by use of it the conversion which the testator ordered is anticipated in such a way that what is ordered to be done is regarded as actually accomplished; but that fiction is without application here, and the doctrine of equitable conversion, much discussed upon the argument, plays no part. If the question were as to when the conversion arose, whether at the death of the testator, or when the sale was actually made, then the fiction and doctrine would apply; but no such question concerns us here. It is enough to know that there is a positive direction to convert, and the result must have been the same whether actual conversion or equitable was contemplated. The evident purpose of the testator in directing a sale of his land was in connection with the distribution among his beneficiaries; and the presumption is that he knew, if his lands were sold as he had directed, the proceeds would be distributed as personalty. It is not pretended that the will gives to the three sisters who take the residue any estate in the lands. Conversion as to them is admitted, and it is freely allowed that all the interest they have is in the execution of the trust through which they are to receive their shares in money. The effort is to distinguish between them and the widow in this regard.

Because the testator has described the interest given the latter as a "legal share," it is argued that his intention must have been to confine her share within the limitations of intestacy; that is to say, one-half of the personal estate absolutely and onehalf the income of the real estate during life. That the testator could have so limited and restricted her share is a matter of course; but since the legal share may under certain conditions, when there is real estate, embrace the one-half the entire estate, regarded as personalty, the question remains, what was this testator's understanding as to the meaning of the words used? In this connection the fact that his will directs a conversion of the real estate is of large significance. Under this provision what he was distributing to his beneficiaries was money, not land, and it was the money to be derived from the sale of the land that he had under contemplation. A widow's legal share under conditions we have here, the estate being personalty, would be the one-half absolutely. It is always a legitimate presumption that a testator in framing his will knew the law, and intended such results as would follow through the law, unless he provides to the contrary. Not only does the will contain no contrary provision, but every provision and direction is consistent with the purpose to make the widow's share payable directly

a sale of the entire estate, divested of all charges. It is as much because of what the will does not contain, as of what it does, that we reach the conclusion that the testator intended his widow to take one-half the whole absolutely. It contains nothing which in the remotest way suggests that her share is to be a charge upon the real estate, or that it shall be held in trust in case the land be sold discharged of it, or that it was income she was to receive, or that her ownership was to be qualified in any way. On the contrary, in express terms, it directs that this legal share be paid to her out of the estate, just as it provides that the shares of the three sisters are to be paid to them. This was the will of a man of extensive business experience, owning large estates in land. It shows an anxiety on his part that his lands when sold should sell to the largest advantage. It would be apparent to any one of the most limited experience and observation that this result would be impossible were a dower of one-half the whole value to be charged upon the land. Did he contemplate such a sale? We cannot think so. If he did not, but intended a sale outright, then, if appellant's view be correct, we are confronted by this other circumstance so unusual in testamentary dispositions as to be remarkable, that he created a fund for the widow for life without giving any directions at all with respect to its investment, control or management, other than that it was to be paid to her. That he intended a sale which would divest the dower we have no doubt; that he intended the widow to receive but the income of one-half the purchase money during her life is not only inconsistent with the general scheme of the will, but conflicts with the express provision which requires that her share be paid to herself. A careful examination of the will in all its parts has satisfied us that the conclusion reached in the court below awarding the widow the one-half of the entire estate as personalty accords with the expressed intention of the testator.

The appeal is dismissed, at the cost of appellants, and the decree is affirmed.

(222 Pa. 226)

SMITH V. METROPOLITAN LIFE INS. CO. OF NEW YORK.

(Supreme Court of Pennsylvania. Oct. 5, 1908.) 1. INSURANCE (§ 585*)-LIFE POLICY-RIGHT TO PROCEEDS.

The naming of a beneficiary in a life policy to whom payment is to be made is a gift of a benefit in the future and is contingent on the circumstances, and carries with it no obligation to the beneficiary that the donor will keep the policy alive, and the nature of the thing given would seem to imply that the beneficiary must survive the insured.

[Ed. Note. For other cases, see Insurance, Dec. Dig. § 585.*1

2. INSURANCE (§ 589*)-RIGHT TO PROCEEDSCHANGE OF BENEFICIARY.

Where a husband insures in favor of his wife, but makes no further disposition of the insurance money to her personal representative or otherwise, he is entitled on surviving her to change the beneficiary to some other person.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1472-1474; Dec. Dig. § 589.*] 3. INSURANCE (§ 587*)-RIGHT TO PROCEEDSCHANGE OF BENEFICIARY.

Where an insured, desiring to substitute his daughter as beneficiary for his wife, who had died, applied to the agent of the insurance company, and was furnished with a printed blank called "change of designation," which he executed, and this change of designation was delivered to the company and accepted by it, and for more than seven years it received premiums on the basis of such change, the company is estopped to deny the validity of the. change, whether strictly in accordance with the requirements of the by-laws of the company

or not.

[Ed. Note.-For other cases, see Insurance, Dec. Dig. § 587.*]

4. INSURANCE (§ 665*)-RIGHT TO PROCeeds. A clause of a life policy that production thereof by the company and a receipt for the sum assured, signed by any person furnishing proof satisfactory to the company that he or she is the personal representative, husband or wife, or relative by blood or lawful beneficiary, shall be conclusive that such sum has been paid, and that all claims under the policy have been satisfied, does not render a receipt given to the executor of insured a defense as against a beneficiary whose rights are fixed by the policy.

[Ed. Note. For other cases, see Insurance, Dec. Dig. § 665.*]

Appeal from Court of Common Pleas, Schuylkill County.

Action on life policies by Esther A. Smith against the Metropolitan Life Insurance Company of New York. Judgment for defendant, and plaintiff appeals. Reversed.

Argued before MITCHELL, C. J., and FELL, MESTREZAT, POTTER, and ELKIN, JJ.

James B. Reilly and George W. Ryon, for appellant. R. H. Koch and Guy E. Farquhar, for appellee.

MITCHELL, C. J. Gordon took out five separate policies of insurance on his own life. No beneficiary or person to whom the insurance should be paid on the death of the insured was named in any of the policies, but in the applications for three of them, in answer to the printed question as to whom the money should be payable, the name of his wife was written. In the other two there was not even this designation of a beneficiary, but it was conceded at the trial that the insurance was intended for her benefit and that the policies were handed to her by the insured. The trial court, therefore, treated all the policies as alike in her favor as beneficiary, and for the purposes of this case no question on this point need be considered. The wife died first, and subsequently the husband by written order, on a blank

"change of designation" furnished by the company, appointed his daughter, the plaintiff, as the beneficiary. She brought suit, and on the trial was nonsuited on the ground that the interest in the policies had vested in the wife, and at her death passed to her administrator as part of her estate. In support of this result, reliance is had principally on the cases of Anderson's Estate, 85 Pa. 202, Brown's Appeal, 125 Pa. 303, 17 Atl. 419, 11 Am. St. Rep. 900, and Entwistle v. Insurance Co., 202 Pa. 141, 51 Atl. 759. The facts, however, in these cases were so different that none of them can be regarded as a controlling authority for the present. In Anderson's Estate the policy was payable to the wife, "her executors, administrators or assigns." The insured (husband) having died insolvent, the money was claimed by his creditors, but it was held that it was an asset of the wife. In Brown's Appeal the policy was payable to the wife, and in case of her death before that of the insured then to her children. The wife and the husband jointly executed an assignment, and, after the wife's death, it was held on interpleader that the children had title under the original contract, and it could not be divested by the assignment. In Entwistle v. Insurance Company the insurance was payable to the wife, and, if she died before the husband, then to the children, but, if the husband survived both wife and children, then to his legal representatives. By the terms of the policy, its value was convertible into cash at the option of the holder after 15 years. Husband and wife sought to exercise the option, but it was held that the children had a beneficial interest which brought them within the term "holders," and could not be divested without their sanction. In all the foregoing cases the contingency presented by the state of facts was one expressly provided for in the policy, and it is beyond question that where such is the case the terms of the policy, which is the substantial contract of the parties, must govern. But where, as in this case, a state of facts exists for which the policy makes no express provision, a very different question is presented. In Brown's Appeal it was said that the death of the wife in the lifetime of her husband "extinguished her interest in the policy," and in Entwistle v. Insurance Company "the interest of the wife was wholly contingent upon her surviving her husband. If the wife die before the insured, she will take nothing under the policy." These expressions, of course, and the decisions in which they were used, were based, as already said, on the language of the policies, but the same result would follow upon general principles. Where all the conditions of fact expressly provided for in any contract have failed and the contract is silent as to anything further, regard must be had to the fundamental intent and effect of the contract. The contract of life

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insurer upon the death of the insured. That is the certain primary intent, and does not admit of doubt.

The secondary question, to whom is the payment due, is contingent on the circumstances. The naming of a beneficiary to whom payment is to be made is a gift of a benefit in future, but is contingent on the circumstances. Thus it carries with it no obligation to the beneficiary that the donor will keep the policy alive by continuing to pay the premiums. That is contingent on his doing so voluntarily. And the nature of the thing given would seem to imply that the beneficiary must survive the insured. Thus in the present case the gift is equivalent to a provision that when the husband dies, having kept the policy alive, the wife shall be entitled to the money. But the intent is to provide for her, not for any other, and, if she has died first, the expressed intent is incapable of fulfillment, and we are not at liberty to supply a further intent which the donor did not indicate. He might have done so by naming her executor, or administrator, or children, at his own choice, but as he did not do so we are not authorized to make a choice for him. The natural presumption is that he did not desire such result, nor intend to continue to pay premiums for the benefit of any other person. At the inception of the contract the whole disposition of the insurance money was within the control of the insured. He might have provided in the policy for its disposition under any and all conditions, but he did not. the designation of his wife as the party to receive it, he vested a right in her and to that extent parted with his control. But he did nothing more, and on her death before his the condition failed, and the right of control which he had only parted with on condition returned to him, and, in the absence of any further disposition by him, would have become an asset of his estate.

By

Out

The cases relied upon by the learned court below, as already said, differed so entirely in their essential facts that they are not authority for this. No Pennsylvania case has decided the question now raised. side of this state the decisions are not in entire harmony, but the weight of authority is with the views above expressed. In 13 Am. & Eng. Ency. of Law, p. 654, the general rule is thus stated: "Ordinarily where the insured survives those specified to take at his death, the insurance money, where no other disposition is made of it, becomes, at his death, a part of his estate, to be administered as his will, or, in the absence of a will, as the law directs. * ** But where a person, as a husband, takes out a policy on his life in favor of another as the wife, without further mention, and pays the premiums, and he survives the beneficiary, he may change the policy for the benefit of any other person, as a subsequent wife." Id.