every indication that the truck driver was then | hit by the bicycle. The one who arrived at the endeavoring to avoid the collision, for he ran the truck to the north curb of Eighteenth street; hence the inevitable conclusion is that the bicycle rider was not giving such attention to the manner of his going as he should, and was therefore guilty of negligence, which at least contributed to, if it did not actually cause, the accident. [2, 3] "The legal duties of the respective parties at this corner were reciprocal. It was the duty of the bicycle rider so to conduct his bicycle as to be able to control it and stop or turn and avoid a collision with those who were first at the corner, and the same duty devolved upon the truck driver. It was also the duty of the truck driver to go west and south of the intersection of the streets (Act June 30, 1919 [P. L. 678, § 25; Pa. St. 1920, § 990]), before he turned to the left into East Eighteenth street, which he did not do; and circumstances might have made this act of his negligence. But did the accident follow as a result of this act on his part? It could not have so resulted, for under the undisputed evidence the truck had gone from the west side, or at least the center, of Parade street, along the rails of the connecting switch, as much as 40 feet in a straight line, or about 67 feet around the curve, to the point of the switch in Eighteenth street, all the way in plain view of the bicycle rider, before, the collision occurred; and it is inconceivable that a bicycle rider, approaching a corner at a proper rate of speed, with his bicycle under control, and exercising proper precaution and observation, could not have avoided a truck moving diagonally for this distance in front of him, with 68 feet of a paved street to the west of it on Parade street and 16 feet of a paved street to the south of it on Eighteenth street within which to pass, and especially is this true when the first divergence of the truck to the east was about 25 feet north of the north line of Eighteenth street, or at the point of the switch in Parade street, and the turning could not have been abrupt, as it is undisputed that the truck followed the contour of the switch all the way. [4-6] "But it is argued that the bicycle rider had superior rights at the corner over the truck; and, as an abstract proposition of law, this is correct. The evidence, however, does not place him in any position to raise superior rights in his favor, for, under the evidence, he was not the first at the corner, and could not have been, since the truck had gone by it when corner first would have superior rights over the other, and it would not be important how the one arriving first got there in order that those rights should attach. The argument on this branch of the case was that the bicycle rider had a right to assume that the truck driver would go to the right and beyond the intersection of the streets before he made the turn. This is true as a general proposition, but the nonperformance of that duty by the truck driver neither created a right on the part of the bicycle rider to run into the truck nor released him from his duty to have his bicycle under control and to be observant. It was just as much the duty of the bicycle rider to avoid a collision, if the truck driver was negligent, as it was if he was not. If he [the bicycle rider] saw the truck before it had a right to turn, his duty was to avoid it. If he did not see it until after it had turned, it was his duty to see it then; for the plaintiff's evidence discloses, and it is undisputed, that the truck passed before him in plain view for a distance of at least 40 feet before it reached Eighteenth street, and that, after the bicycle rider reached Eighteenth street, he had a paved space, the width of the whole of the south side of the street, to the right of the truck, in which to pass, and the whole of Parade street to the left of it. It follows, then, that one or both of two incidents must have contributed to the happening of the accident (admitting, as we must here, that the truck driver was negligent in the initial turning, however unimportant subsequent events may have made that fact), to wit, either the bicycle rider was not looking or else he was riding too rapidly to stop in time to avoid coming in contact with the truck. "To paraphrase Justice Potter's opinion in Harvey v. Philadelphia Rapid Transit Co., 255 Pa. 220, 99 Atl. 796: 'It is clear that the plaintiff contributed to the injury; had he used his eyes, he must have seen the truck entering upon the turn and starting around the corner in front of him as he approached. Reasonable prudence required him to stop and let the truck pass, or else give it a wide berth by turning to the right or the left, which the width of both streets gave him ample opportunity to do. There was no occasion for him to drive blindly on until with great violence he came in contact with the truck.' A recovery therefore, under the law, could not have been permitted; hence the compulsory nonsuit was properly granted." The order appealed from is affirmed. The giving by a town of an interest-bearing note for culverts purchased by it did not conIt does not appear that at the date of purstitute a borrowing of money, where it did not chase, or when the note was given, there appear that there were funds available in the were funds available in the township treastownship treasury for payment of the obliga-ury for payment of the obligation thus incurtion thus incurred, nor that the note was other than security for the original debt and to fix a deferred time of payment. red, nor does it appear that the note was other than security for the original debt and to fix a deferred time of payment for the goods purchased, which were delivered to and used by the township during 1918, but 2. Towns ~32 Supervisors not barred of credit for payment of note because transaction did not appear at time of audit for pre-paid for in 1919; the payment then made vious year. Where a township in September, 1918, gave its interest-bearing note, payable in June, 1919, for culverts purchased by it, and the note was paid when due, the township supervisors were not barred from claiming credit for the payment because the transaction did not appear at the time of the audit of their accounts for 1918. Appeal from Court of Common Pleas, Westmoreland County; C. D. Copeland, President Judge. Proceeding on an appeal by George B. Ferguson from the auditor's report for Franklin township, Westmoreland county, for the year ending December 1, 1919. From an covering the purchase price with interest, or compensation for delay in payment. We agree with the court below that the transaction here attacked was no borrowing of money by the township authorities, nor, under the circumstances of this case, does the fact that the transaction did not appear at the time of the 1918 audit bar the supervisors from claiming credit for the payment subsequently made. The appeal is dismissed, at cost of appellant. (271 Pa. 520) order dismissing the appeal, the exceptant COMMONWEALTH v. GARDNER. (No. 45.) appeals. Appeal dismissed. Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, KEPHART, SADLER, and SCHAFFER, JJ. Jas. L. Kennedy, of Greensburg, for appellant. Charles C. Crowell, of Greensburg, for ap pellees. PER CURIAM. George B. Ferguson appealed from the annual report of the auditors of Franklin township, Westmoreland county, for the year of 1919. The appeal was dismissed by the common pleas, an exception was taken, and exceptant has appealed to this court. [1, 2] A payment, on June 28, 1919, of $2,055.07, constitutes the item in controversy; and the following excerpts from the opinion of the court below with a few words which we shall add, sufficiently cover the case: "During the calendar year 1918 the township of Franklin purchased from the Canton Culvert & Silo Company [a number of] 16 and 18 foot acme flat bottom culverts, costing in all $1,966.70, for use on the roads of the township, and on the 24th of September, 1918, gave to (Supreme Court of Pennsylvania. Jan. 3, 1922.) Insane persons 58-Evidence held not to show payments by insane person's father were sufficient, or payments by commonwealth unnecessary. In a proceeding by the commonwealth to recover moneys paid for the maintenance and support of defendant's son while confined in an insane hospital as an indigent person, evidence held not to show that the aggregate of the sums paid by defendant were sufficient to meet the cost of maintenance, or that the amount paid by the commonwealth was not required for that purpose. Appeal from Court of Common Pleas, Somerset County; John A. Berkey, President Judge. Proceeding by the Commonwealth against Dr. J. H. Gardner. From an order denying a recovery, the Commonwealth appeals. Reversed, with directions. Argued before MOSCHZISKER, C. J., and George E. Alter, Atty. Gen., Edmund K. | the commonwealth unless it would be some Trent, Sp. Deputy Atty. Gen., P. G. Cober, of one for which we [the institution] collected Somerset, and George W. Coles, of Philadel- $8 or $10 a week"; and, in the petition origphia, for the Commonwealth. inally filed to compel defendant to make pay. Charles F. Uhl, Jr. (of Uhl & Ealy), of ment for his son's maintenance, there is an Somerset, for appellee. undenied averment to the effect that in 1910 it cost more than $3 a week to keep Abbott Gardner there. We also find, in a petition subsequently filed by the directors of the poor, in 1917, to obtain a raise of rate for the maintenance of this patient, an averment MOSCHZISKER, C. J. This is a proceeding on the part of the Commonwealth to recover from J. H. Gardner moneys contributed by the state for the maintenance and support of his son while confined as an indigent | naming $5 a week as the required rate, which insane person at the Somerset County Home and Hospital for the Insane. The court refused to make an order against defendant, and the commonwealth has appealed. We find an agreement of counsel showing the following facts: On June 22, 1910, Abbott Gardner, son of defendant, was admitted to the institution in question. September 26, 1910, the directors of the hospital commenced a proceeding to compel defendant to pay for the maintenance of his son, whereupon, January 24, 1911, defendant agreed to pay $2 a week from the date of the son's admission to the hospital, which sum was paid until early in 1915, when it was reduced to $1.50. This arrangement continued until April, 1916, when the $2 rate was restored by agreement. Defendant paid at the last-mentioned rate until it was raised to $3.50 a week by order of court. * Defendant avers, in his answer to the present proceeding, that the above enumerated payments were "to cover the entire maintenance and support of the said Abbott Gardner during his period of confinement," and that he (defendant) "was not advised the commonwealth of Pennsylvania was making any payments * for the support and maintenance of his son." The evidence adduced at the hearing does not indicate exactly how much it cost to support the inmates of the hospital where Abbott Gardner was confined, but there is some testimony that "all the inmates were charged to is not specifically denied in the answer defendant then entered. Finally, in a record offered in this case, there are statements by the court of quarter sessions that it was at one time "admitted" the cost during the year 1916 averaged $2.84 a week for each inmate of the hospital, and $3.64 during 1917; further, it was claimed by the directors the cost was $4.89 during the first two quarters of 1918. These findings were made at the time the rate defendant had to pay was raised to $3.50 a week. So far as the present record shows, Abbott Gardner was admitted to the Somerset County Home and Hospital for the Insane June 22, 1910, and continuously confined therein "as an indigent patient." Defendant, all this time, had, and now has, ample means to defray the full cost of his son's maintenance; and, as above shown, it by no means appears that the aggregate of the sums paid by defendant were sufficient to meet the cost of such maintenance, nor does it appear that the amount paid by the commonwealth on that account, namely, $811.72, was not required for the purpose. Under these circumstances, the court below plainly erred in dismissing the commonwealth's rule to show cause why defendant should not pay to it the sum in controversy, which is all it is necessary to determine here. The order appealed from is reversed, and the court below is directed to make the rule absolute; defendant to pay costs. (115 A.) (44 R. I. 109) 1922.) EXTIN "(1) It appears that the petitioner is the mother of two minor children, Fillipo and Cosimo, aged 14 and 12, respectively; that no provision is made in said petition for the protecFeb. 3, tion of the interests of said minor children in said future compensation payments, should the petitioner predecease said children within the time of the remaining compensation period. (2) That a commutation of future payments is not for the best interests of the petitioner." Master and servant 400-Children necessary parties to proceeding for commutation of workmen's compensation. Infant children of deceased employee were necessary parties to widow's proceeding for a commutation of future payments due her under the Workmen's Compensation Act, since, if the widow should die during compensation period, the children would become entitled to future compensation under article 2, § 6. Appeal from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice. Proceeding by Maria Felicia Ciaccia for compensation under the Workmen's Compensation Act for death of her husband, opposed by the General Fire Extinguisher Company, employer. From a decree of the superior court, denying her petition for a commutation of future payments which would become due her under the act, claimDecree of ant appeals. Appeal dismissed. superior court affirmed, and cause remanded. William A. Gunning, of Providence, for appellant. Ralph T. Barnefield, of Providence, for respondent. VINCENT, J. This is an appeal by Maria Felicia Ciaccia from a decree of the superior court denying her petition for a commutation of the future payments which would become due to her under the Workmen's Compensation Act (Laws 1911-12, c. 831). On November 6, 1920, the husband of Maria sustained injuries, in the course of his employment by the respondent Fire Extinguisher Co., which, a few days later resulted in his death. He left a widow and two minor children. On December 31, 1920, an agreement was entered into, which was duly filed in, and approved by, the superior court, which provided for the payment to the petitioner, as the widow of the deceased, of the sum of $10 per week for a period of 300 weeks. On June 18, 1921, said payments having been made for a period of more than 26 weeks, the said Maria filed her petition in the superior court, praying that the future weekly payments be commuted. On June 29, 1921, this petition was heard in the superior court, and on September 14, 1921, the same was denied, and the following decree entered: From this decree the petitioner has appealed to this court, setting forth in her reasons of appeal that the findings of the superior court, as expressed in its decree, are erroneous and against the law. At the hearing in the superior court it was claimed by the Fire Extinguisher Company that the minor children of the deceased employee should be made parties to the petition, either as petitioners or respondents, on the ground that their possible rights and interests in future payments were necessarily involved, and that the employer and insurer were entitled to protection against their future claims, in case the widow should die within the compensation period. We think that the children were necessary If the widow parties to the proceeding. should not live through the compensation period, the children, upon her death, would become entitled to the compensation, thereafter payable, for their own use under section 6, article 2, of the act. These rights of the children are contingent, but they are nevertheless legal rights, which must be considered. These rights cannot be extinguished, unless the children are made parties and are before the court. The employer is also entitled to protection. If the children are not parties to the petition, any decree entered thereon commuting future payments would not bind them. Upon the death of the petitioner within the compensation period, the children could, under the plain terms of the statute, legally call upon the employer to make payments to them thereafter for the portion of the 300 weeks then remaining. The petitioner further contends that she is entitled to have a commutation of future payments on the ground that she is about to remove from the United States and take up her residence in Italy. There is nothing before us to show that any evidence was presented to the superior court to the effect that the petitioner was about to remove from the United States, and we see no occasion for any consideration of that feature of the petitioner's claim. The appeal of the petitioner is dismissed. the decree of the superor court is affirmed, and the cause is remanded to said court for further proceedings. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes A voluntary trust, as distinquished from one supported by a consideration, is essentially a gift, and must be fully executed to render it effective, and a mere intent to establish such a trust will not be aided by a court of equity. 2. Trusts 44(1)-Evidence held not to show execution of voluntary trust. In a suit to enforce a trust, evidence held not to show that a soldier had executed a voluntary trust as to part of his war risk insurance, which was made payable to his mother, in behalf of complainant, his fiancée, as she could not be designated as beneficiary of such insurance, even if a trust to that effect fully executed would be enforced, in view of its pur- The execution of a voluntary trust should be clearly and satisfactorily established to enable a court of equity to recognize and enforce it. Bill to enforce a trust by Carrie O. Cessna against Lillian Adams. On final hearing. Decree advised dismissing bill. Martin V. Bergen, of Camden, for complainant. Joseph C. Haines, of Camden, for defend ant. LEAMING, V. C. Defendant is the beneficiary named in a policy of insurance issued to her son by the Bureau of War Risk Insurance of the Treasury Department of the United States. Since the death of the insured the insurer has been making payment to defendant of the monthly installments due by the terms of the insurance contract. The bill filed herein seeks to compel defendant to pay to complainant all moneys heretofore received and to be hereafter received pursuant to a trust alleged to exist in favor of complainant. able to such person or persons within the permitted class of beneficiaries as would, under the laws of the state of the residence of the insured, be entitled to his personal property in case of intestacy. Complainant was the fiancée of the insured. Complainant's testimony, and the testimony of complainant's mother, is to the effect that a few days before the insured left this coun try with his regiment for France he stated to complainant and her mother that he already had taken out a war risk policy for $5,000 with his mother, defendant herein, named as beneficiary and desired to take out $5,000 more insurance in complainant's favor, but was informed by his lieutenant that he could not name her as beneficiary; that he would for that reason take out the additional insurance with his mother named as beneficiary and his mother would pay the insurance money to complainant in the event of his death. The second $5,000 policy was sured, defendant herein, named as beneficisubsequently issued with the mother of inary. Subsequently (June 30, 1918), the insured wrote to complainant from France as follows: "I now carry $10,000 in Mother's name, but am unable to make a will. Wrote to Mother that if anything happens half this amount goes to you. She will be perfectly willing that you have half, which you have all the right in the world to claim, but let's not dwell too long on this subject as I am coming home to my little girl and the insurance go hang." It is these circumstances, in connection with a claim that the insured wrote to his mother a similar letter, upon which the claim of a trust in favor of complainant is based. There is no evidence which justifies a finding of fact that at any time prior to the issuance of the policy here in question the mother of the insured agreed to act as beneficiary in a policy in the interest of complainant, or even knew of any such contemplated plan. She also denies ever having received a letter of the nature of the one referred to in the letter above quoted, and produces a letter from her son bearing date the preceding day (June 29, 1918), as follows: "Have you seen Carrie [complainant] lately. I took out $10,000 insurance. You will get the papers before long." Complainant and her mother testify to admissions of defendant to the effect that she had received from her son a letter of the nature of the one referred to in the letter first above quoted; this is also denied by defendant. By the terms of the act under which the insurance was issued (Fed. St. Ann. [2d Ed.] p. 1326, § 402 [U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, § 514uuu]), the insurance is required to be payable only to a spouse, child, grandchild, parent, brother, or sister of the insured, and, subject to regulations, the insured shall at all times have the right to change the beneficiary, without the consent of the beneficiary, but only within the class above named; if no beneficiary [1-3] It is an established principle that a within the permitted class be designated by mere intent to establish a voluntary trust the insured, either in his lifetime or by will, cannot be aided by a court of equity; a volor if the designated beneficiary does not sur- untary trust, as distinguished from one supvive the insured, the insurance shall be pay-ported by a consideration, is essentially a |