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thing is not lost. What is it that is, and What is it that is, and I shire avenue in 1900 to the predecessor in tiwhat is it that is not, lost? I take it that tle of the defendants in this case, it is diffiwhat the owner has lost is his possession of cult to see just how the public has regained his land, which has passed into the adverse its rights in the portion (now about 600 feet possession of the state. I think the state's I think the state's in length and continually increasing) of such possession is adverse because it consists, un- bed so granted, which has now been restored der what is called the New Jersey doctrine, by the recession of the ocean, and is used not only of the public rights of navigation, and improved as a public street. fishery, etc., upon and in the waters which overflow the submerged land, and which the state holds in trust for the use of the general public, but also of the emblem or sign of that ownership of the soil under navigable waters which was anciently part of the private regalia of the King of England (until abridged by Magna Charta, after which it was supposed it might be exercised by Parliament), and which, as may be considered as now settled in this state, is vested in the state of New Jersey, and is within the exercise and control of its Legislature. Stevens v. Paterson & Newark R. R., supra; Paul v. Hazleton, 37 N. J. Law, 106; Wooley v. Campbell, 37 N. J. Law, 163; Hoboken v. Penna. R. R. Co., 124 U. S. 656, 8 Sup. Ct. 643,

31 L. Ed. 543.

I think that what the owner has not lost is his right, within the statutory period in this state, to toll the running of such adverse possession and defeat its ripening into absolute ownership, by regaining possession of his land, not by bringing an action of ejectment, because such would be inadequate, now as in the days of King Canute, to stay the action of nature, but by actually ejecting the ocean from his land and restoring it by artificial means to its former condition as dry or fast means to its former condition as dry or fast land, or by having it, within the like period, restored to him through the voluntary action of nature should the ocean within that time recede. Ocean City Ass'n v. Shriver, supra. Such a view, taken in connection with the other familiar doctrine which saves the rights of the public against loss from adverse possession (Hoboken Land & Imp. Co. v. Hoboken, 36 N. J. Law, 540), would return to the use of the public upon its reappearing from the sea, for instance, the portion of New Hampshire avenue south of a point about 300 feet south of Pacific avenue, to which point the high-water line had encroached in 1900 when the state made a riparian grant for, inter alia, what was, before it was submerged, the bed of New Hampshire avenue south of that point. New Hampshire avenue was dedicated as a public street to a distance of 1,500 feet or more south of Pacific avenue by the ancient deed and map ("Rowland's") of dedication of April 15, 1853, executed by Robert B. Leeds and others at a time when the fast land extended 1,500 feet south of Pacific avenue. If it be true that in 1900, when this fast land had so wasted away that only about 300 feet of the 1,500 remained, the state became the owner, not merely while it remained under water, but "absolutely," of the land so submerged, and, while such owner granted the submerged bed of New Hamp

But however that might be, and returning to the question of whether there is involved in this case a conflict between the accretion rights of an owner of the shore and rights under a state riparian grant to an independent grantee of land in front of such shore, no one pretends that in the present case the riparian grant by the state to the defendants' predecessor in title, Bartlett, was intended as or was a grant of any land under water not in front of and adjacent to the grantee's high land at the time the grant was made. It was expressly made to depend upon his ownership of such high land. In other words, it was expressly confined in its limits to the area which in case of natural accretions would become a part of such highland by virtue of the law of accretions according to the location of the high-water line as it existed at the time of the grant. on Waters, § 163; Clark v. Campau, 19 Mich. 327; Stone v. Boston Steel & Iron Co., 14 Allen (96 Mass.) 230. Of course, changes are constantly taking place in the high-water

Gould

lines and in the direction thereof. A shore

which one year was concave in its contour may a year later have become convex. The resultant effect upon lines projected at right angles to it at various points during the proangles to it at various points during the process of transition, to determine boundaries between neighboring accretion gains is hopelessly confusing and the consequent state of uncertainty in titles most injurious. A practical working system is necessary for the good of all, and where such a system has been established its fairness must be more than questioned, in fact, must be clearly overthrown, before the courts will feel justified in intervening. Such a working system seems to have been adopted by the riparian commission under its appointment by, and within the discretion vested in it by, the sovereign power of the state. Under this working system it takes the line of general contour of the shore in the vicinity, and, disregarding local or trivial or temporary indentations or excrescences, runs its division lines at right angles, or as nearly at right angles as is equitable under the circumstances, to such general line of contour at the time it takes up the subject of making riparian grants in such vicinity, and then subsequently adheres as nearly as possible, or as is equitable, to the general division lines thus established, without regard to the fact that subsequent shifting of angles and locations of the highwater line may have brought about a condition which, if it had existed originally, would have produced different results in the direc

tions of such division lines. Not only do I avenue from the location of the grantee's fail to see any unfairness in this working | highland at the time the grant was made is system, but, on the contrary, I cannot see not before the court, because complainant how any other could be practical. Where, sets up no title thereto except the recent Mctherefore, as here, the riparian commission Clees and Leeds' heirs deeds, and these obvihas made a grant the bounding division or ously conveyed nothing. If complainants side lines of which run at right angles, if have any title to the locus in quo it must be that is equitable, or, if not, at such angle by virtue of its being an accretion to their as, under the circumstances, is equitable, highland on the east side of New Hampshire to the general contour of the shore at the avenue, and the efficacy of such a claim of titime of the plotting or surveying of the tle would necessarily depend upon whether the vicinity for riparian granting, such lines owner of the former fast land as it existed in will, I think, be upheld by the courts as 1853, in then dedicating and opening a public a practical and legal ascertainment of the street, New Hampshire avenue, across the boundary lines of subsequent accretion gains same, to and at right angles to the ocean, to the adjacent highland should such had so divided his land into two parts and gains occur. Gould on Waters, §§ 162, 163. fixed the natural side lines of accretion gains This is so, I take it, not because the state, for those parts, respectively, as to have renthrough the riparian grant, has vested in its dered it inequitable for the state to have disgrantee a title to land under water which regarded the lines so fixed in making its subsurvives when the land by accretions to the sequent survey and grant. Valentine v. Piadjacent highland has ceased to be under per, 22 Pick. (Mass.) 85, 33 Am. Dec. 711. water, but because the riparian grant, as But, as before stated, that question is not, in here made, is by its very authority confined my judgment, involved in, and is therefore to the land under water in front of the gran- not decided by, this case. tee's adjacent highland, viz., to the land which would become his by accretion to such highland should natural accretions occur, and consequently the division boundary lines defined in the grant are an authoritative ascertainment by the granting tribunal of the boundary lines of those accretion gains should they occur. Gould on Waters, § 162.

That this must be so seems to me apparent from the fact that the law under which riparian grants are made secures to the owner of the ripa the first right, during a stated period after notice, to receive a grant for the land under water in front of his highland. Surely if one, owning land fronting on the ocean, in taking out a grant from the state of land under water in front of it, instead of having the side lines of the grant run substantially at right angles to the shore line, should have them run at an angle of 10 degrees with the shore line and in front of the shore land of his neighbor, who had received no notice and opportunity to take out his riparian grant in front of his land, such neighbor would have a perfect right to complain that he had been deprived of the privilege which this law secured to him, and of his common-law right to the natural accretions to his land, without compensation, and, of course, to that extent the grant would be void. I take it, therefore, that now that new fast land has been formed by accretions to defendants' upland, the riparian grant in this case can only lawfully include the portion of such fast land which, under the law of accretions, might properly have become the property of the defendants without such riparian grant.

Whether, under this view, the state's grant to Bartlett is valid in so far as it includes land on the opposite side of New Hampshire

I concur, therefore, in so much of the foregoing opinion as holds that complainants are not entitled to a decree in their favor, because the only title they set up, viz., the recent Leeds' heirs and McClees deeds, has no substance, as the grantors in those deeds had nothing to convey (which I think is the only point involved in this case), but for the reasons herein stated I dissent from so much of that opinion as says (as I think, obiter), without proper qualification, that land "lost by erosion is lost forever," and "becomes the property of the state, not while it remains under water, but absolutely." If these assertions had been pertinent to the issue involved in this case, I take it that the first one, that land "lost by erosion is lost forever," should have been qualified by the insertion after the word "erosion" of the words "and remaining submerged by tide water for 20 years," or words to that effect, and that the second one, that such land "becomes the property of the state, not while it remains under water, but absolutely," should have been qualified by adding thereto what is stated in an earlier part of that opinion, viz., that such ownership is of course subject to invasion by accretions to the adjacent highland, which, should they occur, would belong to the owner of the ripa, unless he had been deprived of the right to them by proper proceedings and upon due compensation.

VOSS V. DELAWARE, L. & W. R. CO.
(Supreme Court of New Jersey. Feb. 24, 1913.)
RAILROADS (§ 278*)-INJURIES TO THIRD PER-
SONS-TRESPASSERS-ASSUMED RISK.

coal from defendant's cars did not confer au-
That plaintiff had been authorized to get
thority for him to obtain coal at night from a
car that was on a track where cars were being

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

drilled, and plaintiff, having been thrown from 2. GUARDIAN AND WARD (§ 177*)-GUARDthe car under such circumstances and injured, IAN'S BOND-REDUCTION OF AMOUNT-LIAassumed the risk. BILITY.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 891-900; Dec. Dig. § 278.*]

Action by Theodore Voss against the Delaware, Lackawanna & Western Railroad Company. On rule to show cause why a verdict in favor of plaintiff should not be set aside. Rule absolute.

Argued November term, 1912, before SWAYZE, VOORHEES, and KALISCH, JJ. Tennant & Haight, of Jersey City, for plaintiff. Edwards & Smith, of Jersey City, for defendant.

PER CURIAM. The verdict for the plain tiff is against the clear weight of the evi dence. He is himself the only witness in his own behalf as to the accident. It occurred 16 years before the trial. His delay in bringing the case on is inexplicable. The credibility of his testimony is affected, if not destroyed, by the fact that the important facts to which he testifies were observed by him after he was run over and while he was pinned down by the wheel of the car. His testimony that he saw that the car had been marked by an inspector as having a defective brake while he was in that position and in the condition caused by the accident is quite incredible. It is far more likely to be the result of his imagination dwelling for years on his injury than on his actual recollection.

We think, also, that he fails to show that he was rightfully upon the coal car. Assuming that he had been authorized to get coal from the cars of the company, it does not follow that he was authorized to get it at any hour of the night from a car upon a track upon which cars were then being drilled. In the absence of special circumstances not shown in this case, he assumed the risk of getting coal from a car in that dangerous location. He seems, moreover, to have been guilty of negligence himself in not heeding the warning given, when, if the defendant's witnesses are to be believed, he had time to get off the car before the impact of the other get off the car before the impact of the other

cars.

The rule must be made absolute.

(245 Pa. 535)

Where a guardian's bond for $25,000 was never surrendered, canceled, or changed, and no application was made by the bonding company to have it reduced in amount, the bonding the sum of $14,000, though the court had grantcompany was liable for the guardian's default in ed the guardian's application for a reduction of the bond to $4,000.

[Ed. Note.-For other cases, see Guardian and Ward, Cent. Dig. §§ 607-619; Dec. Dig. § 177.*]

Appeal from Court of Common Pleas, Blair County.

Action on a guardian's bond, by the Commonwealth, for the use of John H. Stehle, against Matthias Stehle and the American Bonding Company of Baltimore, Md. From a judgment for plaintiff, the Bonding Company appeals. Affirmed.

On July 9, 1906, John H. Stehle, a minor son, over 14 years, of Caroline Stehle, deceased, presented his petition to the orphans' court, praying for the appointment of a guardian, and the court appointed Matthias Stehle, his father, as guardian, and directed said guardian to enter security in the sum of $25,000. On August 6, 1906, the said guardian presented his bond, with the American Bonding Company of Baltimore, Md., as surety, in the sum of $25,000, which was approved by the court on said day. On October 1, 1906, the guardian presented his petition to the court, setting forth that only about $2,000 of personal property would come into his hands, that the balance of the estate of the ward consisted of a one-seventh interest

in real estate, and when that was sold the in real estate, and when that was sold the guardian would file a bond in the sum of $21,000 to secure the forthcoming of that fund, and praying the court to reduce the bond of the guardian to $4,000. Whereupon the court entered a decree reducing the bond leave to the guardian to file a new bond for of the guardian from $25,000 to $4,000, with money realized from the sale of the ward's interest in the real estate. The guardian filed a first and final account showing a balfiled a first and final account showing a balcount was confirmed absolutely on January ance in his hands of $14,398.76, which ac8, 1913. The guardian having failed to pay over said amount to the ward after demand, the ward instituted an action upon the bond against the guardian and his surety. The guardian made no defense, and judgment was

COMMONWEALTH, to Use of STEHLE, V. taken against him for the amount of plain

AMERICAN BONDING CO. et al. (Supreme Court of Pennsylvania. May 22, 1914.)

1. GUARDIAN AND WARD (§ 176*)-GUARD

IAN'S BOND-RELEASE.

Since an approved guardian's bond is held in trust for all persons interested, it cannot be released, even by the court, without the consent of all parties in interest.

[Ed. Note.-For other cases, see Guardian and Ward, Dec. Dig. § 176.*]

tiff's claim. The American Bonding Company filed an affidavit of defense, admitting liability in the sum of $4,000, but denying liability for the balance of plaintiff's claim. Upon the trial the court gave binding instructions for plaintiff, and the jury accordingly found a verdict against the defendant in the sum of $14,916.70. The American Bonding Company, defendant, made a motion for judgment non obstante veredicto, which

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

was overruled by the court, and judgment | ering a case in which the original bond was was entered upon the verdict. canceled and surrendered, and a new security Argued before FELL, C. J., and BROWN, taken, with the consent of all interested parSTEWART, and MOSCHZIS- ties and the approval of the court. Nothing done in the present case was sufficient to relieve the surety on the original bond, which is still in full force and effect, from the. whole or any part of its obligation. Judgment affirmed.

ELKIN,
KER, JJ.

R. A. Henderson, of Altoona, for appellant. J. F. Sullivan and J. Austin Sullivan, both of Altoona, for appellee.

ELKIN, J. [1] From no point of view can we regard this appeal as having any merit. A bond given by a guardian and approved by the court shall be deemed to be held in trust for all persons interested. Newcomer's Appeal, 43 Pa. 43. Even the court has no authority to release the bond without the consent of all parties in interest. Com. V. Rogers, 53 Pa. 470. The judgment of the learned court below might very well be rested on the authority of the two cases just cited. The case at bar cannot be distinguished in principle from those cases, nor should it be, because the doctrine there announced is an aid to the wholesome administration of the law where trust estates are involved.

(245 Pa. 529)

In re CHRISTY'S ESTATE. (Supreme Court of Pennsylvania. May 22, 1914.)

1. WILLS (§ 506*)-CONSTRUCTION "HEIRS” -"HEIRS OF THE BODY."

The words "heirs" or "heirs of the body"

will be presumed to have been used in a will as
words of limitation of the estate, not as words
of purchase, and to refer to quantity of estate
and descent, not to individuals.

Dig. §§ 1090-1099; Dec. Dig. § 506.*
[Ed. Note.-For other cases, see Wills, Cent.

For other definitions, see Words and Phrases,
First and Second Series, Heirs, Heirs of the
Body.]

2. WILLS (§ 607*)-CONSTRUCTION-RULE IN

*

*

*

* the one-fourth of the other three-fourths to the son took an estate

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[2] In the present case the bonding com- SHELLEY'S CASE. pany became surety on the bond of the guard-tain real estate to testator's son for life and Under a will devising the proceeds of cerian in the penal sum of $25,000, and this directing that after his death it should go to is the bond upon which suit was brought. his heirs unincumbered by any debts of his exThe bond as executed was never surrendered cept for developing mines, and providing that, "If my son ** or canceled by the court, nor changed by I leave my sister * should die without heirs, the parties in interest. The bond itself re- my estate mains just the same as it was at the time it was signed by the surety. The bonding company never made any application to the court, either to have the bond released or reduced in amount, nor did it ask at any time that the guardian be required to give additional security. Under these facts it is difficult to see how the bonding company is in position

to ask that it be released from a considerable part of its liability as surety on the ground that the guardian did some act to relieve it from its voluntary obligation. The guardian did make application to court to have the amount of the bond reduced, on the ground that it was larger than necessary to protect the personal estate; but in this he was clearly mistaken and must have misled the court. There is no doubt that the will worked a conversion of the real estate and that the entire estate which belonged to the ward must be regarded as personalty. The amount of the original bond was fixed upon this basis, and the bonding company undertook to insure a faithful accounting by the guardian of the entire trust estate. All that is demanded now, and this is what the learned court below held, is that the surety be made answerable according to its undertaking. What the court did by way of attempting to reduce the bond at the instance of the guardian, and without the consent of other interested parties, must be regarded as having been improvidently done under the authority of the cases above cited. We are not consid

my brothers, * *
in fee tail under the rule in Shelley's Case
which, by the act of April 27, 1855 (P. L. 368),
was converted into an estate in fee simple;
the use of the word "heirs" implying that the
testator meant a class of heirs not including his
sisters and brothers.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1368-1371; Dec. Dig. § 607.*]

Appeal from Superior Court.

In the matter of the estate of John T. Christy, deceased. From a decree of the Superior Court affirming a decree of the orphans' court dismissing an exception to the auditor's report, Francis J. Christy and others appeal. Affirmed.

Porter, J., in the Superior Court filed the following opinion:

[1] "This appeal is from a decree of the court below making distribution of a fund consisting of the royalties accruing under certain leases for mining coal upon lands in Cambria county, of which John T. Christy died seised. The question we have to decide is one of title to the land, the nature of the estate which Francis M. Christy acquired under the will of his father, the testator. The testator, by his will, first' made provision for his wife, Mary A. J. Christy, by devising to her certain property in fee, and then devised to her a life estate in the residue of his property, which included the tract. viz.: And the one-third of all the rents and in question, by a clause in the words following, income of my estate, as long as she remains my widow. ** If Francis, my son, should die before marriage his mother shall be his heir during her widowhood.' The testator then proceeded to make provision for Francis, his only son, by devising to him certain real estate in

*

*For other cases see same topic and section NUMBER in Dec. Fig. & Am. Dig. Key-No. Series & Rep'r Indexes

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words of purchase. To those words the law attaches a definite meaning. When used by a testator, the law presumes that he used them in their legal sense; that he intended not individuals, but quantity of estate, and descent. Whenever they are employed, therefore, the burden is thrown upon him who contends that they are words of purchase, to rebut that presumption, and to show that they were used in the particular grant or devise to designate persons. The intent not to use the words in their legal sense must be unequivocal, and must be devise. Doebler's Appeal, 64 Pa. 9; Guthrie's Appeal, 37 Pa. 9; Graham v. Abbott, 208 Pa. 68, 57 Atl. 178; Arnold v. Muhlenberg College, 227 Pa. 321, 76 Atl. 30; Hastings v. Engle, 217 Pa. 419, 66 Atl. 761; Shapley v. Diehl, 203 Pa. 566, 53 Atl. 374; Roth v. Cohn, 236 Pa. 534, 84 Atl. 964. There is nothing in this will to warrant the construction that it was the intention of the testator that those who were to take the remainder were to take otherwise than as heirs of the body of the life tenant. Under all our numerous authorities the life estate of Francis was, by force of the rule in Shelley's Case, enlarged into an estate entail, which, by operation of the act of April 27, 1855 (P. L. 368), was converted into a fee-simple estate. This was the conclusion reached by the court below, and the specifications of error must be overruled.

fee to be presently enjoyed, and following these devises come the clauses of the will which are material to the consideration of this case, being the only clauses of the will making disposition of the Cambria county lands after the death or remarriage of Mary A. J. Christy, the widow. This devise was in the following words: 'He shall have the two-thirds of all my lands in Gallitzin Township, Cambria Co., the income of rent liens during his mother's widowhood. After he shall have all the proceeds during his lifetime. After his death it shall go to his heirs free and unincumbered by any debts of his ex-gathered from the language of the grant or cept for developing mines, etc. If my son Francis should die without heirs I leave my sister Sarah Inlow the one-fourth of my estate (her husband nothing). The other three-fourths to my brothers and their heirs, except Josiah's daughter Elizabeth shall have no interest. The heirs of Mrs. Agnes Burk, decs. and Mrs. Lucy Ann Riffle shall not inherit any part of my estate.' This will was executed and the testator died long prior to the approval of the act of July 9, 1897 (P. L. 213), and that statute can have no effect upon its construction. Mary A. J. Christy, the widow of testator, died on September 26, 1905. Francis M. Christy, the son, married during the lifetime of the widow, and, having survived her, died on January 30, 1910, without issue. He, by his last will and testament, since duly probated, devised the lands in question to his widow, Mary R. Christy, the appellee. The fund for distribution has accrued as royalties from the mining operations conducted since the death of Francis M. Christy. If Francis M. Christy took an estate in fee in the lands, under the will of his father, the appellee is entitled to receive the royalties in question; if, on the contrary, he took but a life estate, then the appellants are entitled to take, under the devise over to the sister and brothers of testator.

"The decree of the court below is affirmed and the appeal dismissed at cost of the appellants." Before FELL, C. J., and BROWN, POTTER, ELKIN, and STEWART, JJ.

D. E. Dufton, R. Edgar Leahey, and Albert W. Stenger, all of Johnstown, for appellants. W. L. Pascoe, of Tyrone, for appellee

[2] "Francis M. Christy having not only married but outlived the widow of the testator, the contingency upon which the widow was to take, PER CURIAM. The decree of the Superiduring her widowhood, the share of the estate or Court is affirmed at the cost of the appeldevised to Francis never happened; that devise fell. We have therefore only to 'consider the lant on the opinion of Judge Porter.

(245 Pa. 585) SIMON V. MAJESTIC APARTMENT

HOUSE CO.

1914.)

May 22,

clauses of the will disposing of the remainder
after the termination of the particular estate
which testator created in order to make provi-
sion for his widow during her widowhood.
There can be no doubt, under the provisions of
the will, that the intention of the testator was
that the land should go, after the death of the (Supreme Court of Pennsylvania.
widow, to Francis during his lifetime, and that
the remainder, after the life estate of Francis,
should 'go to his heirs free and unincumbered
by any debts of his except for developing mines.'
The devise over, 'If my son Francis should die
without heirs,' is to the sister and brothers
of the testator and their heirs. This language
clearly implies that he did not intend his sis-
ter and brothers, or their heirs, to take, un-
less those whom he calls the heirs of his son
should fail, and as the devise over, after fail-
ure of heirs of his son, is to his own sister
and brothers and their heirs, he must necessa-
rily have meant a class of heirs amongst whom
his own sister and brothers could not have been
enumerated, for otherwise he would be making a
gift over which could not take effect until after
the extinction of the persons to whom it would
have been given. This being so, it is well set-adelphia County.
tled that the proper construction of the will is
to take the word 'heirs' to mean 'heirs of the
body.' Doebler's Appeal, 64 Pa. 9; Bassett
v. Hawk, 118 Pa. 94, 11 Atl. 802. The lan-
guage of the testator can only be construed to
mean that he intended to vest a life estate in
Francis, and that the remainder should go to
the heirs of Francis; that is, the heirs of his
body. The words 'heirs' or 'heirs of the body,'
are words of limitation of the estate, and not

MORTGAGES (8 4652*)-JUDGMENT-PRIORI-
TIES-DETERMINATION OF-TEMPORARY IN-
JUNCTION-APPEAL.

The granting, in a mortgage foreclosure suit, of a preliminary injunction to restrain the enforcement of judgments against mortgaged property, pending the determination of the question of priority between the judgments and mortgage, could not be disturbed on appeal, where it appeared that the judgment creditor was deprived of none of his rights, and was fully protected therein by an injunction bond.

[Ed. Note. For other cases, see Mortgages, Dec. Dig. § 4652.*]

Appeal from Court of Common Pleas, Phil

Bill by the Real Estate Trust Company of Philadelphia, trustee, against C. Herbert Simon and another, to foreclose a corporation mortgage and to restrain execution under judgments alleged to be subsequent to the mortgage. From a decree awarding a preliminary injunction, Simon appeals. firmed.

Af

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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