author: Per Curiam,

text:
    Madden, Appellant, v. Moore.

      Election law — Primary elections — Practice, C. P. — Appeal from commissioners — Act of February 17, 1906, P. L. 86.

    1. The remedy for a refusal by county commissioners to grant a recount of votes cast at a primary election under the Act of February 17, 1906, P. L. 36, because, in the judgment of the commissioners, the petitioners had not stated any adequate reason for asserting that fraud had been committed and that the petition did not conform to the requirements of the act, is by appeal to the common pleas under the act and not by mandamus.
    2. Under the act of February 17, 1906, the duties of commissioners are not merely ministerial, inasmuch as the act vests in them a discretion to determine, in the first instance, the sufficiency of the petition, both as to form and substance, and to reject an irregular or groundless application.
    Argued March 22, 1910.
    Appeal, No. 336, Jail. T., 1909, by plaintiff, from order of C. P. No. 5, Phila. Co., June T., 1909, No. 3,053, refusing a writ of mandamus in case of Joseph Madden v. Robert J. Moore, Harry D. Beaston and Frank J. Gorman, city commissioners.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Petition for writ of mandamus. Before Staake, J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was decree of court.

      Vivian Frank Gable, with him Albert Smith Faught and J. Lawrence Wetherill, for appellant.

      F. Shunk Brown, of Simpson & Brown, for Robert J. Moore and Harry D. Beaston, appellees.

      Paul Reilly, for Frank, J. Gorman, appellee.

      July 1, 1910:
   Per Curiam,

This appeal is from an order refusing a writ of mandamus to require the county commissioners to open the ballot box of an election district and recount the votes cast at a primary election. Section 11 of the Act of February 17, 1906, P. L. 36, provides that upon petition of ten qualified electors, setting forth that fraud has been committed in any election district, “together with a statement of the reasons why such an assertion is made,” it shall be the duty of the commissioners to open the ballot box and recount the votes and that: “Any person aggrieved by any decision of the county commissioners relative to the counting of the votes may appeal therefrom to the court of common pleas of the proper county whose duty it shall be to hear said appeal, and to make such decree as right and justice shall require.”

■It appears from the petition for a mandamus that the three commissioners met and considered the petition of the electors for a recount that had been filed in their office, and decided by a vote of two to one not to grant the prayer thereof. It appears from the return of the majority of the commissioners that they refused to count the votes because in their judgment the petitioners had not stated any adequate reason for asserting that fraud had been committed and th^t the petition did not conform to the requirements of the act of 1906. With the sufficiency of the petition and the return thereto we are now concerned only as it affects the remedy sought by mandamus.

The duty of the commissioners was not merely ministerial. The requirement of the act that the petition in addition to setting forth fraud shall contain a “statement of the reasons why such an assertion is made” vests in them a discretion to determine, in the first instance, the sufficiency of the petition, both as to form and substance and to reject an irregular or groundless application, otherwise a statement of the reasons would be objectless. Their decision dismissing the petition was a decision “relative to the counting of the votes” from which an appeal to the court of common pleas is expressly given by the act of 1906. They did not refuse to perform a duty imposed by law to consider and decide. The ground of complaint is not that there was a failure to act but that a wrong conclusion was reached. The remedy for this was not by mandamus but the specific remedy provided by the act, by appeal to the common pleas.

The appeal is dismissed at the cost of the appellant.


source: Caselaw Access Project

license: Public Domain

text:
    Philadelphia & Reading Railway Company v. County of Philadelphia, Appellant.

      Railroads — Rates—Passenger traffic — Act of April 5,1907, P. L. 59— Constitutional law — Corporations—Alteration of charter.

    Where a railroad company is prosecuting its passenger traffic at a loss, and it is within the power of the company to reduce this loss by charging rates to passengers in excess of the requirements of the Act of April 5, 1907, P. L. 59, but within the limit which the law would otherwise permit, and in this manner the company can more nearly approach a reasonable and proper return upon its capital, the company will be relieved from the duty of compliance with the act of 1907, under the protection afforded by the constitutional provision to the effect that the legislature can alter or annul an existing charter only in such manner that no injustice shall be done to the incorporators.
    Argued March 29, 1910.
    Appeal, No. 390, Jan. T., 1909, by defendant, from decree of C. P. No. 4, Phila. Co., June T., 1907, No. 935, granting injunction in case of Philadelphia & Reading Railway Company v. County of Philadelphia.
    Before Fell, C. J., Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity, praying that the Act of April 5, 1907, P. L. 59, be declared unconstitutional and void, and that the defendant be enjoined from bringing any suit or suits for penalties.

      Willson, P. J., filed the following opinion:
    The Act of assembly of April 5, 1907, P. L. 59, commonly known as the two-cent fare law, was an attempt by the lawmaking power of the commonwealth to impose upon all the railroad corporations of the state, irrespective of the character or location of their roadbeds and of the expense of operation thereon, a flat rate of two cents per mile for the transportation of each passenger. With the question of the wisdom or unreasonableness of such a general and indiscriminate provision we are not concerned. It cannot now be regarded as a question open to debate whether it is within the power of the legislature to regulate the rates of fare or freight to be charged by railroad corporations by a general statute, leaving the question of the application of the statute to particular cases to be determined according to the particular circumstances of each. It would be easy to cite many cases which have arisen and been decided in different parts of the country wherein the rights of the states to enact such laws has been recognized and affirmed. We need not, however, go further than the decision of our own Supreme Court in the case of the Pennsylvania Railroad Company v. Philadelphia County, 220 Pa. 100, to find an exposition of the doctrine. This case furnishes to us all the standards needed for the disposition of one of the main questions which have been raised in the present controversy. We must assume in the consideration of the matter in hand that the act of 1907 will apply to the plaintiff company and determine the rates of fare which can lawfully be imposed upon its passengers, unless some controlling reason can be found in constitutional rights which the company can assert and rely upon to exempt it from the statutory requirements. The burden of exhibiting and establishing the basis for such exemption undoubtedly rests upon the plaintiff.
    So much may be regarded as conceded, and it would be a waste of time to elaborate either a statement or a discussion of the question.

      It does not seem to us to be at all necessary to state at length the details of the history of the plaintiff corporation, or to show how it became possessed of the various sections or parts which now constitute its entire system.

      A. After a careful study of the whole case as it has been presented to us, we have reached the conclusion that, to apply the principles settled by the Pennsylvania Railroad case to the present, it is not requisite to analyze the entire system of the plaintiffs railroad, and separate it into its original units for the purpose of ascertaining what rights the constituent companies possessed as to the fixing of rates of fare for passengers. In the case of one or two of these original corporations whose roadbeds are now parts of the entire system, the acts of incorporation limited the maximum charge for passengers to two cents per mile, but these instances were of roads of insignificant length, and not of sufficient relation to the whole system to make it worth while to give to them a separate consideration, or any determining weight in the case. As to these it may be conceded that the inhibition as to charges above two cents per mile is still in force, and yet the larger question as to what the plaintiff company may lawfully charge upon those lines generally will still be open.

      B. The Philadelphia & Reading Railroad Company was incorporated by Act of assembly of April 4, 1833, P. L. 144. Whatever powers it then acquired to impose tolls or charges for transportation of passengers, so far as these powers may be said to have constituted a part of the contract which the state entered into with the corporation, were expressed and are to be found within the limits of that statute.
    It does not seem to us that it can properly be contended that there was in the statute any express grant of a power or right to the corporation to charge any fixed or maximum rate for passenger transportation. In this respect the case before us differs from that of the Pennsylvania Railroad Company. It is true that, in the twentieth section of the act, it was provided that the president and managers might from time to time “ordain and establish rules and regulations for the due ordering-of all traveling and transportation on the said road, and for its preservation, with power to alter, repeal, enlarge or amend the said rules and regulations as they may deem expedient. . . . Provided, that the toll of any species of property shall not exceed an average of four cents per ton per mile, nor upon each passenger an average of two cents per mile.”
    The limitations of the proviso doubtless related to a condition of affairs which existed in the early history of railroad development, namely, the carriage of merchandise and passengers in vehicles furnished by third persons to be transported by the railroad company.
    The case of Boyle v. Philadelphia & Reading R. R. Co., 54 Pa. 310, treats of this condition of affairs, and exhibits a striking difference between what was contemplated when railroads were first introduced into the country and what now exists.

      C. By subsequent leases and mergers the Philadelphia & Reading Railroad Company absorbed into its system a very large number of railroads, belonging to various companies which had been separately incorporated. Some of these railroads were extremely diminutive in length. All of these properties so acquired, together with the railroad of the main line as authorized by the act. of 1833, and together also with all franchises, etc., which the Philadelphia & Reading Railroad Company possessed were, in 1888, covered by a mortgage made and executed by that company to a trustee for the protection of bondholders. In the year 1896, under foreclosure proceedings all the property and rights covered by the mortgage was sold, and the plaintiff company was formed for .the purpose of taking, holding, using and operating all the properties and the rights that had been embraced in the said mortgage. All of said properties and rights were conveyed or transferred to the plaintiff company. At the same time another corporation, called The Reading Company, was organized for the purpose of carrying out, in some of its details, the reorganization of the company. The capital of the plaintiff company was made for the purposes of the reorganization, $20,000,000, but this was merely nominal in character, and it was all issued to, and is still held by, the said Reading Company. But one certificate was issued for the entire amount of the capital stock. In the same year, namely, 1896, the plaintiff company, by resolution of its board of directors, accepted all the provisions of the present constitution of the state, and especially the provisions of art. XVI of the same.
    This epitome is sufficient to enable us to approach the vital question in this part of the case.
    Following the course adopted by us in treating the case of Pennsylvania Railroad Company when it was before us — a course which was approved by the Supreme Court, on appeal — we shall only consider the effect of the act of 1907, so far as it relates to the passenger business of the plaintiff corporation, leaving out of view altogether the condition or the net results of the total traffic, freight and passenger, of that company.
    With reference to the passenger business of the company, we find:
    1. That this portion of the business of the company is small both in extent and in pecuniary results, as compared with the other business of the company.
    2. That the carriage of passengers by the plaintiff involves a net loss each year, whether the calculation of results is made by the revenue train mileage system, which is that primarily adopted by the plaintiff in the presentation of its case, or by any other standard that has been exhibited to us. It is true that if, as against the actual receipts from that class of business, only what may properly be called operating expenses are charged, there would appear to be a profit; but to arrive at a true and just result, it is clearly necessary to include also other charges or deductions. As to these there is a mass of testimony and calculations, which we have carefully studied, but in our opinion it would be of no advantage to the ease to set them forth or to discuss them in detail. We agree with the plaintiff company that it is a proper method of reaching results — which in any possible way of attempting to reach them must necessarily be only approximate' — to set off against the total receipts not only the strictly operating expenses connected with passenger traffic, but also a certain proportion of common expenses, expenses common to passenger and freight business, and others which relate solely, or so nearly so as not to be divisible, to the passenger traffic.
    In our opinion, among such deductions not embraced in operating expenses there may and should properly be included fixed charges, interest on cost of passenger equipment, interest on the terminal bonds, and improvements; interest on the cost of shops at Reading, interest on ten per cent of the cost of the subway; interest on the improvements to and at Neshaminy Falls, and interest on cost of elevation of tracks on Ninth street in this city.
    Such deductions are made by the plaintiff in some instances by a division according to revenue train mileage, or by some other reasonable standard, and in others by a deduction of the total interest charges, as for example in the cases of the Neshaminy Falls improvement and the work on Ninth street. Whether the alleged resulting loss of over $3,000,000 thus arrived at by the plaintiff, or one much smaller, according to the contention of the defendant’s expert accountant, is correct, is not a matter of great moment. In either event, we are satisfied from the proofs that the net outcome of the plaintiff’s passenger business involves a large loss to the company from year to year.
    3. At the same time, it is true that owing to changes which the plaintiff company instituted, principally in suburban rates, in the neighborhood of this city, after the act of 1907 went into effect, the actual net loss in the year 1907-1908 was less than it was in the year 1906-1907.
    4. It is also true that the plaintiff company has included in its receipts, upon the basis of which calculations have been made on its behalf, the amounts received in part from interstate business, namely, from business passing over about twenty-seven miles of roadbed extending from the Delaware river to Bound Brook in the state of New Jersey, and about twelve miles of roadbed in the state of Delaware.
    5. There are various other matters upon which the parties on one side or the other rely, but we will reserve what we have to say in regard to them until we shall answer the requests which have been presented to us for findings.
    We are asked to make a decree declaring the act of 1907 to be unconstitutional and void, and enjoining the defendant from attempting to enforce its provisions. It seems to us that we have stated so much of the case as is necessary to determine the bearing of the principle which was settled by the decision of the Pennsylvania Railroad Company v. Philadelphia County, 220 Pa. 100, upon the present case.
    We are certainly justified in following the example of the Supreme Court in limiting our consideration of this branch of the case to the question “whether the act of 1907 transgresses the provisions of art. XVI, sec. 10 of the constitution, that the legislative power to alter or annul shall be exercised only in such manner that no injustice shall be done to the corporators.”
    Following this same example, we must assume that injustice would be done to the corporators of the plaintiff company, in case the requirements of the act of 1907, if obeyed by the company, would result in depriving the corporation plaintiff of a return from the prosecution of its passenger business of a rate of profit not less than a legal rate of interest. That test was plainly recognized and approved in the same case, as well as in Brymer v. Butler Water Co., 179 Pa. 231.
    There is no occasion for us to rehearse the grounds upon which the Supreme Court reached the conclusions referred to.
    Having been reached and expressed as the judgment of that court, it is our duty to follow them. The question therefore which we have to determine, in order to ascertain the bearing of what has been settled by that court upon this branch of the case is one of fact, viz.: whether or not the requirements- of the act of 1907, if obeyed by the plaintiff company in fixing its rates of fare for passengers would work injustice to the corporators by depriving them of a just return upon their share in the company’s property and business.
    We are of the opinion that this question must be settled in favor of the plaintiff company, and we think that the state of facts which we have already set forth sufficiently justifies such a conclusion. The company clearly had the right, previous to the passage of the act of 1907, either under the provisions of its original charter of 1833 or under the general railroad act of 1849, to charge a rate of at least two and a half cents for each passenger per mile. This charge it did make on a large portion of its passenger traffic. It is true that, for the purpose of stimulating business and increasing results by a multiplication of passengers over short routes, adjacent to this city, it established commutation and other rates which were largely below the maximum rate just referred to. This course must be regarded as experimental and as intended to give information to the company in regard to the best manner of conducting its business and of imposing reasonable, profitable rates for passenger travel. It was not obliged to lower any of its rates below two and a half cents a mile, and it was at liberty at any time to impose the highest lawful rate upon its passengers on either the whole or any portion of its lines.
    The right to charge a higher rate than two cents a mile was valuable, and if it is made to appear that the lower rate mentioned would prevent a return of at least six per cent upon the amount invested on the side of passenger traffic, to take away that right would work an injustice to the corporators.
    It is true that, so far as actual results are concerned, by means of the shifting of rates and attempts to avoid loss, the company does not appear actually to have suffered any diminution in net receipts.
    ’ This, however, has been effected at very considerable loss to those who have been accustomed to travel at lower rates than those which have been imposed since the act of 1907 was enacted, and it is by no means certain that the policy thus adopted will prove in the long run to be remunerative.
    It is also true that the actual amount of loss, which, upon the basis of the present passenger business of the company, has resulted from obedience to the requirements of the act in question, has not been more than about $200,000 for the year taken as a test. This we do not regard as decisive. In any event, it seems to be beyond question that the amount of loss has been and will be substantial, and, in the development and growth of the plaintiff’s business, it is reasonably certain that in the future the loss will be very great. We consider that the case is to be looked at, not merely with reference to present conditions or results, but with reference to the probabilities of the future and the actual rights of the company to derive a profit from the transaction of its business. It certainly cannot be successfully claimed, simple because by shifts and adjustments in a particular year the company may be able to avert any serious disaster or loss, that the company will not be able to make a reasonable and proper profit in other years, in case it was permitted to adopt and enforce rates above the maximum fixed by the act of 1907. The future probable, reasonably certain, effect of the law should not be left out of consideration.

      At this point it is proper also to say that we do not consider that the case before us is to be seriously affected by the circumstance that as to a portion of the passenger traffic taken into consideration there is an inclusion of the results of the interstate business. We grant that the results of such business have no proper place in the controversy. At the same time we agree with the view urged on the part of the plaintiff, viz.: that the inclusion of results of the interstate business, taking both receipts and expenses into consideration, can make no difference in the substantial condition of affairs, so far as those affairs are- involved in the present controversy. The extent of the loss suffered by the plaintiff company in the prosecution of its passenger traffic is too great to be affected materially one way or the other by the outcome . of the interstate business.
    We, therefore, conclude, in view of the fact that the company is prosecuting its passenger traffic at a loss, and that it is within the power of the company to reduce this loss by charging rates to passengers in excess of the requirements of that statute, but within the limit which the law would otherwise permit, and that in this manner the company could more nearly approach a reasonable and proper return upon its capital, that it would work an injustice to the corporators of the plaintiff company if that company were required to obey the provisions of the act of 1907.
    It follows from the protection which is afforded by the constitutional provision to the effect that the legislature can alter or annul an existing charter only in such a manner that no injustice shall be done to the incorporators, that the plaintiff company is relieved from the duty of compliance with the requirements of the statute in question. Upon this ground alone we hold that the plaintiff is entitled to the decree and injunction prayed for.

      Error assigned was decree of the court.

      July 1, 1910:

      C. J. Hepburn and M. Hampton Todd, attorney general, with, them Andrew Wright Cravjford, Ernest Lowengrund, assistant city solicitors, and J. Howard Gendell, city solicitor, for appellant.

      Abraham M. Beitler and W. U. Hensel, with them Samuel Dickson, J. D. Campbell, and Charles Heebner, for appellee.
   Per Curiam,

All questions of law that were necessarily involved in the decision of this case in the common pleas were considered and settled in Penna. Railroad Co. v. Philadelphia County, 220 Pa. 100. The question of fact at the hearing, on which the case turned, was whether the enforcement of the Act of April 5, 1907, P. L. 59, against the plaintiff would do an injustice to its stockholders by depriving them of a just return upon their shares of stock. The learned judges who heard the case found after a most thorough investigation that the plaintiff’s passenger business yielded no net profit but resulted in a heavy loss each year. Their conclusion on the whole case is thus summarized in the opinion of the learned president judge of the court: “We, therefore, conclude, in view of the fact that the company is prosecuting its passenger traffic at a loss, and that it is within the power of the company to reduce this loss by charging rates to passengers in excess of the requirements of that statute, but within the limit which the law would otherwise permit, and that in this manner the company could more nearly approach a reasonable and proper return upon its capital, that it would work an injustice to the corporators of the plaintiff company if that company were required to obey the provisions of the act of 1907.

“ It follows from the protection which is afforded by the constitutional provision to the effect that the legislature can alter or annul an existing charter only in such manner that no injustice shall be done to the incorporators, that the plaintiff company is relieved from the duty of compliance with the requirements of the statute in question. Upon this ground alone we hold that the plaintiff is entitled to the decree and injunction prayed for.”

In the opinion of a majority of this court the finding of fact was fully warranted by the testimony, and the conclusion announced necessarily followed. The additional ground for relief set out in the amendment to the bill, that the penalties imposed by the act for any disregard of its provisions, are so out of proportion to the fault as to be evidence that they were not in good faith intended to secure observance of the law but to force acceptance of its terms by deterring a resort to the courts and that the act is therefore unconstitutional, need not now be considered.

The decree enjoining the defendant is affirmed at its cost.


author: Mr. Justice Potter,

text:
    Moore’s Estate
    (No.1).

      Partnership — Partner’s interest — Outstanding liabilities.

    1. In computing the value of a deceased partner’s share in the business, his portion of firm liabilities incurred by the partners jointly in the purchase of stock for their individual ownership is properly charged off against his interest in the firm, as the effect of such a use of the partnership moneys was to withdraw such funds from the partnership.

      Partnership — Surviving partner — Option to purchase — Assumption of debts — Interest.
    2. Where partnership articles give the surviving partner a right to take over the deceased partner’s share by paying therefor in certain annual installments with interest, the assumption by the survivor," who is solvent, of the obligations of the decedent’s estate for firm debts so as to fully discharge the estate from liability therefor, is equivalent to cash payment and the survivor is liable for interest only on the ascertained value of the deceased’s share from the time of the election to take it. It is immaterial to the estate in such a case whether the obligations are paid in cash or whether money for this purpose is borrowed upon long time and at low interest, nor does the fact that collaterals belonging to the estate remain in pledge for the firm debts make any difference where this is in accordance with the terms of the partnership agreement.

      Executors and administrators — Counsel fees — Surcharge.
    3. Where from the itemized statements of services rendered by counsel for the three executors of an estate, it appears that there was considerable litigation extended over a long period of time, and the amounts involved were large and the services rendered, exacting, and there is no evidence that the amount claimed was excessive, the naked conclusions of an auditing judge, without reasons or findings of fact, that an aggregate of §10,000 for fees was excessive, will be set aside.
    Argued March 29, 1910.
    July 1, 1910:
    Appeal, No. 20, Jan. T., 1910, by Fidelity Trust Company and Walton Pennewill, surviving executors, from decree of O. C. Phila. Co., July T., 1898, No. 56, dismissing exceptions to adjudication of fifth account in Estate of Andrew M. Moore, deceased.
    Before Fell, C. J., Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Exceptions to adjudication of Lamorelle, J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was in dismissing exceptions to adjudication.

      Ira J. Williams and II. Gordon McCouch, with them Wm. Rudolph Smith and Simpson & Brown, for appellants.

      Dimner Beeber and V. Gilpin Robinson, with them IF. H. Woodward, John M. Gardner and John G. Kaufman, for appellees.
   Opinion by

Mr. Justice Potter,

Andrew M. Moore and Joseph F. Sinnott were partners under the firm name of Moore & Sinnott. ' The interest of Moore in the firm was seven-sixteenths, and that of Sinnott was nine-sixteenths. The partnership articles provided that in the event of the death of one partner, the survivor should have the right to continue the business for his own individual benefit and profit, and that he should pay for the share of the deceased partner in five annual installments. They were engaged in the business of distilling and selling whisky, and as a firm they also made large purchases of shares of stock in corporations, with the intent that the stocks so purchased should be the individual property of the partners. Money was borrowed in the firm name .to a large amount, and the individual partners provided their individual collateral to secure the loans. The interests of the partners in the shares of stock which they purchased were not in the same proportion as their interests in the firm. Their transactions in purchases of stock resulted in heavy losses and the creation of a large indebtedness.

Andrew M. Moore died January 26, 1898, testate, naming as his executors the Fidelity Trust Company, Walton Pennewill and Joseph F. Sinnott. Five days later, on January 31, 1898, Sinnott informed Moore’s executors of his intention to exercise his rights under the partnership agreement. Appraisers were appointed by agreement who made an inventory and placed a valuation upon the assets. A public accountant was also employed who audited the books and accounts of Moore & Sinnott and prepared a balance sheet which showed that the net amount of the share of Moore in the firm was $29,049.93, subject to possible deductions for bad debts. This balance was reached by charging to each partner the amount of money advanced for him or upon his account, by the firm, and by including his share of the outstanding liabilities of the firm.

The present proceeding was the adjudication of the fifth account of the executors of the will of Andrew M. Moore. The first question raised by this appeal is as to the amount of interest which should have been paid by Mr. Sinnott to the estate of A. M. Moore, upon the amount of the share in the partnership taken over by him. The auditing judge accepted the result of the account, stated, as of date January 31, 1898, and the settlement made thereunder, and said, “No question can now arise as to the propriety of the settlement made. The matter has been settled for all time by the adjudication of the second account, the audit of which was had June 7 to 13, 1900.” But he took a position, with reference to the payments of the firm indebtedness, which resulted in surcharging the surviving executors with the sum of $6,086.32, as interest upon the balance due under the settlement, to the estate of A. M. Moore. It appears that under the stated account it was shown that as of date January 31, 1898, the gross amount of the share of Andrew M. Moore in the business was $376,581.80, but this was subject to the deduction of a balance due to the firm by Andrew M. Moore of $117,042.43, for advances made for him, and of the further sum of $230,489.44, which was the share of Andrew M. Moore in certain bills payable, so that, as against the gross amount of his interest in the firm, an aggregate sum of $347,531.87 was due and payable by the estate of Andrew M. Moore for advances, and as its share of the indebtedness of the firm of Moore & Sinnott. Subtracting this amount of $347,531.87 from the entire value of his interest, which was $376,581.80, leaves, as above stated, the net value of Andrew M. Moore’s share in the business at $29,049.93. Upon this amount, Joseph F. Sinnott, by reason of his taking over the entire business, as was his right under the partnership agreement, was of course liable to pay interest, until the amount was liquidated. But the auditing judge assumed that Sinnott was to pay interest upon the gross amount of the share of A. M. Moore, less such amounts as he paid to the firm creditors upon the amount of the obligations which he agreed to pay to them for the Moore estate. We see no warrant for this position. It is apparent that the effect of the use which was made of the firm money in the purchase of stocks, for the individual ownership of the partners, was to withdraw from the business that much of the partnership funds. It was therefore manifest that the share of each partner in the business, when the partnership was dissolved, could only be ascertained by deducting all advances made for him, and also by charging him with his share of the outstanding firm notes or liabilities. This principle was admitted by the auditing judge. But he did not regard the assumption by Mr. Sinnott of the obligations of the Moore estate to the firm in the sum of $347,581.87, as of date January 31, 1898, as the equivalent of payment of that amount at that time. In this view we think he was mistaken. When Mr. Sinnott assumed the payment of obligations which otherwise the estate of A. M. Moore would have had to discharge, it was-precisely the equivalent to their payment in cash, provided of course, that Mr. Sinnott was solvent, and that he did actually discharge the obligations which he thus assumed. Whether he. paid them at once, and in cash, or whether he borrowed the money with which to make the payments, .upo'n long time and at low interest, was not a matter of moment to the estate of A. M. Moore. The essential thing was that it was relieved of the necessity of making payment. It had no right to require Sinnott to pay to it interest at six per cent upon the balance due to firm creditors, and thus make a profit out of the arrangement which he made for carrying his indebtedness at a lower rate. So long as Sinnott held the estate harmless, he had the right to make his own arrangements with creditors as to the payment of the firm obligations, upon terms mutually satisfactory. Nor did the fact that the col-laterals of the Moore estate remained in pledge make any difference; for that was in accordance with the terms of the partnership agreement. Admittedly Mr. Sinnott did pay the obligations which he assumed, and the collateral was all in due time restored to the estate of A. M. Moore. We see nothing to justify the court below in ignoring the terms of the settlement which fixed the net amount of Sinnott’s indebtedness to Moore's estate, at the time when he elected to take the interest of " his deceased partner at the sum of $29,049.93. If Sinnott had at that time called upon Moore’s estate to pay its share of the obligations in cash, and had then taken advantage of his right under the partnership articles to pay Moore’s estate in deferred installments, such deferred payments would of course have borne interest. But Sinnott had the right to do just what he did do; that is, assume the payment of all the firm’s outstanding obligations, and pay to Moore’s estate the net value of its interest in the firm. The partnership agreement gave Sinnott the right to take over the business “for his individual benefit and profit,” as soon as ho exercised his option. The surcharge of interest as made by the court below is inconsistent with this right in Mr. Sinnott. The decision in Harbster’s App., 125 Pa. 1, bears directly upon the point in question. It was there held that under a similar agreement, the liability of the surviving partners was for the worth of the share of the decedent at the time they elected to take it, under the agreement. The rights of all parties were fixed when the election was made. In the present case, when Sinnott made the election to take over the business, the firm liabilities included the outstanding notes, which of course had to be taken into account in ascertaining the condition of the firm, and the value of the shares of the partners.

The payments which Mr. Sinnott made in discharging the indebtedness of the firm were not payments to the Moore estate, but were payments to the creditors of the firm, made in the discharge of the obligations he assumed under the settlement. We think the auditing judge was therefore in error, in the theory which he adopted, which led to surcharging the executors with interest upon the gross amount of the share of A. M. Moore in the firm, less the amount of interest which he paid to the firm creditors. The liability of Mr. Sinnott to pay interest was only upon the net amount of the share of Andrew M. Moore, which as fixed by the account stated, was $29,049.93.

The second question raised by this appeal is set forth in the twelfth assignment of error, in which complaint is made that the auditing judge erred in reducing the amount allowed for counsel fees for services rendered during a period of nineteen months, including the conduct of extensive and important litigation. Accountants claimed credit for the payment of $10,000, and this amount was reduced by the auditing judge to $7,500. There were three executors and trustees, and each had separate, counsel. Itemized statements of the services rendered were submitted, from which it appeared that Mr. Bright rendered service upon forty-four different dates. Messrs. Brown and Williams specified some eighty different dates upon which they rendered service, and the memorandum of Mr. McCouch shows that upon ninety-six different dates he rendered service to the executors and trustees. Mr. McCouch and Mr. Brown testified at length as to the character and extent of the services, and Mr. McCouch testified that in his opinion the services rendered in one of the equity suits in the United States circuit court were in themselves sufficient to justify a charge of $5,000. And the valuation placed upon various other itemized matters of service raised the aggregate to more than $10,000. The litigation during the period seems to have been very considerable, the amounts. involved large, and the service rendered, exacting. It embraced several suits in the common pleas courts, two suits in the circuit court of the United States, one appeal to the United States court of appeals, and three appeals to this court, besides the general advice from time to time in the management of the estate. No evidence was offered to show that the services were not worth the amount charged by the able and eminent counsel employed. The learned auditing judge has not given us the benefit of any findings in detail with respect to the value of the services, but has contented himself with the statement of the final conclusion reached by him in fixing the total amount to be allowed. Had reasons been given which fairly warranted the reduction, or had the items of service for which the charge was deemed too high been pointed out, or referred to, or had findings of fact upon disputed testimony or doubtful inferences as to the value of the services been set forth, we would be slow to question them. But with the mere naked conclusion that under the testimony the amount of the charge for services by counsel as a whole, was excessive, we cannot agree. We are all of opinion that upon the record as it stands in this appeal, no sufficient reason appears for reducing the amount of the allowance claimed for counsel fees. Of the numerous specifications of error filed, it will perhaps be sufficient to sustain the eleventh, twelfth, fifteenth, seventeenth, eighteenth, nineteenth, twenty-fifth, twenty-sixth and twenty-seventh assignments.

The surcharge of $6,086.32, growing out of the restatement of the interest account, is reversed, as is the surcharge of $2,500, in reduction of the allowance for counsel fees. To this extent the decree of the orphans’ court is modified.


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    Moore’s Estate
    (No. 2).

      Partnership — Dissolution —• Settlement — Estoppel — Trade-marks — Laches.

    1. Where a partnership agreement provides that upon the death of either partner the surviving partner may take over the business as a going concern, using the deceased partner’s share “in the money in loan account, assets and property of the firm,” being required to compensate the estate of the deceased partner therefor, with a further provision for an appraisement of “the stock on hand and merchandise assets,” an appraisement made in accordance with a construction of the agreement, accepted and acquiesced in by all parties in interest for a period of six years, which does not take into account the trademarks and good will of the firm, is conclusive.

      2. Courts are not disposed to look with favor upon attempts to question a private settlement between partners which are not made promptly. Hence, if a partner, or one claiming through him, permits a settlement to stand for a long time unquestioned, his laches will bar an action to open it or set it aside, unless the delay is satisfactorily explained.
    Argued March 29, 1910.
    July 1, 1910:
    Appeals, Nos. 12 and 13, March T., 1910, and No. 101, Jan. T., 1911, by Henry G. Moore et al., from decree of O. C. Phila. Co., July T., 1898, No. 56, dismissing exceptions to adjudication in Estate of Andrew M. Moore, deceased.
    Before Fell, C. J., Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to adjudication of fifth account of executors.
    The facts appear in the opinion of the Supreme Court and in Moore’s Estate, ante, p. 516.

      Dimner Beeber and V. Gilpin Robinson, with them W. H. Woodward, John M. Gardner and John G. Kaufman, for appellants.

      H. Gordon McCouch and Ira J. Williams, with them Wm. Rudolph Smith and Simpson & Brown, for appellees.
   Opinion by

Mr. Justice Potter,

Of the various claims made by appellants in this case, the first is that the accountants should be surcharged for failure to secure for the estate of Andrew M. Moore, deceased, the value of decedent’s share of the good will of the business of Moore & Sinnott, and the value of the trade-marks, leases, etc., owned by the firm, with the exception of the lease of the Gibsonton mills, which latter by its terms inured to the benefit of the surviving lessee. The determination of this question depends upon the proper construction of the partnership agreement which was entered into between the partners. The original agreement between Moore and Sinnott provided that in the event of the death of either partner the survivor should have the right to continue the business on his own account, using “all the assets of the copartnership and the funds invested and employed therein,” including the deceased partner’s “share of the copartnership capital funds and assets,” paying the representatives of the deceased partner the value of such funds and assets with interest, by annual payments during a period of six years. By an amendment to the third paragraph of the partnership agreement, the survivor was permitted the use of the deceased partner’s share “in the money in loan account, assets and property of the said firm,” and was required to “pay interest on the value thereof as appraised, as hereinafter provided,” with certain enumerated exceptions, and also to pay the principal in five annual installments.

By the fourth paragraph of the agreement, which was not amended, it was provided that upon the death of either partner the survivor should “cause the stock on hand or merchandise assets of the firm to be appraised, by two disinterested parties,” and duplicates of the appraisement to be furnished the surviving partner and the representatives of the deceased partner. This was the only provision as to an appraisement. Immediately after the death of Andrew M. Moore, the surviving partner (Sinnott) notified the executors of his intention to take the business under the terms of the partnership articles.

On February 14, 1898, the executors wrote the counsel for the three sons of testator that Sinnott had requested the estate to name one of the appraisers, and requested suggestions as to the person to be named. On February 17, 1898, the executors notified the same counsel that two persons, naming them, had been selected as appraisers. An appraisement was made by the appraisers thus mutually selected, and subsequently the books were examined by expert accountants employed by both parties, and an account was made up, which was accepted as a basis of settlement by Sinnott, and by Moore’s executors. This account showed the net amount of Moore’s interest in the firm assets, to be $29,049.93, subject to deductions for bad debts. Neither good will, trade-marks and brands nor firm name were included in the appraisement, at least as separate items, nor does it appear that Sinnott was charged with any sum on these accounts. Notice of the result of the appraisement seems to have been given to counsel for the sons, as appears from a letter of Samuel B. Huey, Esq., in which he expresses surprise at the result. This letter was dated March 9,. 1898.

The first account of the executors was filed in 1899. At the audit two of the sons were represented by counsel. Both in the testimony and the adjudication, the appraisement and settlement with Sinnott were referred to, but the auditing judge excluded the matter entirely from his adjudication, striking out the charge of $29,049.93, for the net value of decedent’s interest in the firm, and leaving it for a later accounting. No request was made to surcharge the executors for the value of the good will, trade-marks, etc., or for any sums based on alleged errors in the account which was the basis of the settlement. On December 21, 1899, in response to a letter from Mr. Huey, who represented George M. Moore, counsel for the executors by letter notified him that Sinnott had “purchased” Moore’s interest in the business at the appraised value of $29,049.93, and was paying interest on that sum, and on November 10, 1899, the executors furnished to Messrs. Budd and Ziegler, counsel for Albert H. Moore, a complete copy of the appraisement and statement, showing how the balance of $29,049.93, was reached.

A second account was filed by the executors in 1900. At the audit before President Judge Hanna, all three sons were represented by counsel. The entire subject of the appraisement and the settlement was gone over in the testimony at this audit; Sinnott himself, whó was then living, being a witness. No question was raised aS to the correctness of the appraisement, or the binding effect of the settlement. On the contrary, counsel for Albert Ii. Moore apparently acting with the concurrence of counsel for the other two sons, expressly asked that the executors be surcharged with “the outstanding interest in the firm of Moore & Sinnott, as shown by the appraisement and report furnished by John Heins & Company, amounting to $29,049.93, as of December 31, 1898.” Counsel for the sons also asked that the executors be surcharged with the securities of Moore which had been pledged as collateral for the speculative firm notes, or with their value, for the reason that it appeared in the account of Mr. Heins that the debts for which those securities were pledged had been assumed by Mr. Sinnott in the accounting. There was no request to surcharge the accountants for any amount on account of good will, trade-marks, firm name or any other matter, not contained in the appraisement and the Heins account.

The auditing judge refused to surcharge as requested, afid exceptions to his adjudication were dismissed by the court in banc. On appeal by George M. Moore to this court, the following assignment of error was filed: “The court erred in dismissing the third exception to the adjudication, which was as follows: ‘III. Because the learned auditing judge did not surcharge the executors with the difference between the value of the decedent’s estate in the whisky business of the firm of Moore & Sinnott, as shown by the account stated of Mr. Heins, Appendix, p. 21, viz., $376,581, and the amount the executors agreed to accept therefor, $29,049.93, to wit, $347,531, it appearing from the evidence that the debts of Moore & Sinnott so charged off against the decedent’s interest in obtaining the said valuation of the decedent’s interest, have not been actually paid by the surviving partners, and remain as outstanding debts of the decedent with his individual collateral pledged therefor.’ ” This showed full knowledge of the situation.

A third account was filed by the executors in 1903; a fourth account in 1904, and the present proceeding was the adjudication of the fifth account of the executors. In this proceeding the auditing judge held that “no question can now arise as to the propriety of the settlement made (by the executors with the surviving partner). That matter has been settled for all time by the adjudication of the second account, the audit of which was had June 7 to 13, 1900. At that audit Mr. Sinnott testified that he owned the business in his own right, February 1, 1898, and had agreed to pay to the Moore estate $29,000 (approximately), subject to deduction for bad debts, according to the terms of the agreement, and had also agreed to assume all liabilities. Mr. Dale of counsel for the executors, put in evidence all the various agreements hereinbefore set forth.' Mr. Divine of counsel for George M. Moore, offered in evidence copy of the apportionment and appraisement of the account of Moore & Sinnott, made by Mr. Heins; also appraisement of the interest of Andrew M. Moore in the firm of Moore & Sinnott; while Mr. Huey offered the letter from Mr. Dale, dated November 11, 1899, and Mr. Dale went on record with this admission: ‘We will stand on the letter as an absolutely correct statement of the facts therein contained.’ Mr. Divine also offered in evidence a list of the outstanding securities belonging to the estate of Andrew M. Moore aggregating upwards of $609,000, with a specific request that the executors should be surcharged with them. The three sons were all represented by counsel, and two of them took appeals to the Supreme Court. In the ‘paper-book’ of George M. Moore and Albert H. Moore the will, all the agreements, the Heins apportionment of account of Moore & Sinnott, the balance sheet, amended balance sheet, and the letter from Mr. Piggott and from Mr. Dale and Mr. Huey were printed as exhibits, together with a summary of the speculative accounts and notes.”

As the auditing judge says, the law of this case is found in the agreement. Under it the survivor had the right to continue the business, as it had been carried on by the partnership, and to take it over as a going concern. He was to cause “the stock on hand, or merchandise assets of the firm to be appraised,” and that appraised value was what he was to pay for. The use of the term “merchandise assets” limits the appraisal to the goods themselves. The appraisers may have taken into account the fact that the merchandise would be sold in connection with an established business, and under well-known brands, which would make them more valuable; but whether they did so or not, does not appear. We agree with the court below that in this case the question of the value of the good will as a separate asset does not arise. We regard the action taken by the parties at the time of the appraisement, and their subsequent acquiescence in what was done, as binding upon them. The first demand made by any of these appellants upon the executors for any accounting for the value of the good will, trade-marks, etc., as separate assets, seems to have been made through counsel for two of them upon March 15 and April 7, 1904, after three accounts of the executors had been filed and audited.

The construction placed upon the articles of partnership, when the appraisement was made, and the business was taken over by Mr. Sinnott in 1898, was not antagonistic to anything expressed in the agreement, and it seems to us to have been in harmony with the purpose and intent thereof; and especially in view of its acceptance and long acquiescence therein by the parties interested, the construction adopted is entitled to great weight. The personal representatives of the deceased partner were familiar with the circumstances of the partnership, and they agreed with the surviving partner that a proper construction of the partnership agreement carried the right to continue the business, and to enjoy the good will, trade-marks, etc., without special compensation therefor. This practical construction placed upon the agreement was also known to the three sons of Andrew M. Moore, the present appellants, and it does not appear that they raised any question as to the good will, etc., not having been properly appraised, until more than six years after the date of the settlement. There was no concealment as to what was done, and the surviving partner dealt with the other executors who were not members of the firm. Under these circumstances we think that as was said by Chief Justice Fuller, sitting in United States circuit court of appeals, 7th circ., in Holladay v. Imp. Co., 57 Fed. Repr. 774, “If the executor and the survivor in good faith, come to an accounting respecting the partnership affairs, and settle the same as a final account such settlement cannot be overhauled, except on the ground of fraud (or such unfairness as is equivalent thereto) or mistake.” And a sound principle is thus stated in 30 Cyc. of L. & P. 705: “Courts are not disposed to look with favor upon attempts to question a private settlement between partners which are not made promptly. Hence, if a partner, or one claiming through him, permits a settlement to stand for a long time unquestioned, his laches will bar an action to open it or set it aside, unless the delay is satisfactorily explained.”

In view of the fact that there was an article of agreement in this case providing for the taking over of the business by the surviving partner, and specifying what should be appraised as assets of the firm, and in view of the further fact that the appraisement was made, in accordance with a construction of the agreement accepted and acquiesced in for so long a time by all parties in interest, we do not feel called upon to determine to what extent the good will of the business might have been valuable as an asset to be accounted for, in the absence of a partnership agreement, under which it was assumed that the good will passed under the purchase of the tangible assets.

Under the seventh assignment of error, counsel for appellants maintain that in making up the balance sheet as of date January 31, 1898, the expert accountant charged A. M. Moore twice with his share of Reading pool notes, and that the result was an error of seven-sixteenths of $432,200, or the sum of $189,087.50, against Moore. It might be sufficient to say again, that the settlement between the executors and Sinnott must be regarded as conclusive, and not now open to attack. But the large amount involved,, and the gravity of the error, if it exists, has led us to carefully re-examine the basis of the settlement, with the result that in so far as we have been able to discover, there is nothing to justify an inference of a double charge against Mr. Moore. Prior to January 31, 1898, payments for account of the partners had been made to the old Reading pool, amounting to $902,581.78. This amount was advanced for the benefit of the partners equally, and might have been charged to them at the time as so much cash. But it was carried upon the books, until the reorganization of the Reading railway, and then the amount was charged off, one-half, or $451,290.89, to each partner. That entry had no relation to the payment of any outstanding firm notes; it was merely to cover that much money taken from the firm by each partner. For the firm notes which had been issued for borrowed money, there was of course a liability upon the part of both of the partners. But this charge of $451,290.89, was for funds actually withdrawn by, or on account of each partner, just as much as though it had been paid in currency. It was unfortunately invested by them in Reading stock prior to the reorganization, and thus lost; but the principle is just the same as though it had been invested by them in government bonds, and locked up in the strong box of each partner. Counsel for appellants seem to have been confused by the book entries for this transaction, and were led to regard it as being a charge for the share of each partner for the payment of outstanding notes, whereas it was a charge for funds withdrawn from the partnership. If this statement of the situation is correct, then there is no cause for complaint by appellants with regard to the apportionment of the liability of each partner upon the outstanding' firm notes. In other words, if the charging off — on the books of the amount of the old Reading pool — had no relation to the payment of firm notes, then there was no duplication of charge against the estate of A. M. Moore. For the reasons just stated, we are clear that there was no such duplication.

The question raised by the fifteenth assignment of error, as to a slight error in calculating commissions, has, as we have been informed,- been corrected. So also with regard to the amount of $5,008.65, claimed as a surcharge under the nineteenth assignment. That we understand from the statement in appellee’s paper-book, has been paid by the estate of Sinnott to the Moore estate.

The claim of- appellants with regard to the reduction of the allowance for counsel fees has been discussed and disposed of, in the opinion just handed down in the appeal of the executors from the decree of the court below in this case. In the present appeal, the assignments of error are all dismissed, and in so far as the questions raised by them are concerned, the decree of the orphans’ court is affirmed.


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    Lazarus v. Lehigh & Wilkes-Barre Coal Company, Appellant.

      Mines and mining — Coal lease — Landlord and tenant — Affidavit of defense.

    In an action of assumpsit against a coal company to recover the value of coal mined from a small tract of land, forming part of a much larger tract of coal lands, operated under a lease from plaintiff’s predecessors in title to the assignors of defendant company, an affidavit of defense is insufficient which denies that title to the small tract ever existed in plaintiffs, or their predecessors, or that any right to the tract passed under the lease, and claims title in defendants by purchase after the date of the lease, but which does not show any chain of title in the defendants from the commonwealth, does not contain an averment as to how title became vested in its grantors, and which admits the existence of the lease and defendants’ possession thereunder.
    Argued April 12, 1910.
    July 1, 1910:
    Appeal, No. 91, Jan. T., 1910, by defendant, from order of C. P. Luzerne Co., Oct. T., 1908, No. 1,180, making absolute rule for judgment for want of a sufficient affidavit of defense in case of George Lazarus et al. v. Lehigh & Wilkes-Barre Coal Company.
    Before Fell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit for value of coal mined. Before Garman, J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned among others was in making absolute rule for judgment for want of sufficient affidavits of defense.

      Andrew H. McClintock, for appellant.

      W. Alfred Valentine, with him G. Fred Lazarus, for appellees.
   Opinion by

Mr. Justice Potter,

Counsel for appellant here contends that the court below erred in entering judgment against it for want of a sufficient affidavit of defense. The action was assumpsit, to recover the value of coal mined from a small tract of land, containing some two acres, 143 perches, forming part of a much larger tract of coal, operated under a lease from plaintiff’s predecessors in title, to the assignors of the defendant company. The statement of claim filed by plaintiffs sets forth the lease in question, the rights of the plaintiffs thereunder, the rights and liabilities of the defendant company, the proviso for the payment of royalty, the possession by the defendant of the devised tract under the lease, its mining of coal therefrom, and its refusal to account to plaintiffs, and pay for the coal mined from the said small portion, containing two acres, 143 perches. The amended statement of claim shows a chain of title from the commonwealth down to the plaintiffs. The defendant company in its affidavit of defense admits the existence of the lease, and its possession thereunder, but sets [Forth that the small tract in question did not belong to the plaintiffs, or the original lessors at the date of the lease, or at any time thereafter. It further claims to have purchased the small tract from other parties, after the date of the lease, and denies that it obtained any right to that tract, under the lease. The affidavit of defense does not, however, show any chain of title in the defendant, leading out of the commonwealth, and there is no averment as to how the title which it claims to have purchased became vested in its grantors. The affidavit is therefore deficient in this respect. It is not enough for the defendant to make a bald assertion that it has a title in fee simple to the land in dispute, without setting forth the chain of title upon which it relies. Having admittedly taken possession under the lease of the larger tract of land, of which the portion in dispute seems to have been a part, the burden was upon the defendant to show wherein the title of plaintiffs to the small tract was deficient. Neither eviction nor ouster from the land in question was averred. It is suggested that the terms of the coal lease amounted to a sale of the coal in place, and put the parties in the position of vendor and vendee. But whether the defendant be regarded as tenant or as vendee, it cannot use the possession it acquired under the lease, to the injury of those from whom it received it. We agree with the view of the court below, that the averments of the affidavits of defense are not sufficiently specific, and that they do not set forth facts which, if proven, would constitute a defense; and that the averments are in effect mere general denials of indebtedness.

The assignments of error are overruled, and the judgment is affirmed.


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    Fetterhoff’s Estate.

      Will — Charitable devise — Act of April 26, 1855, P. L. 828 — Attesting witnesses — Disqualifying interest — Officers of charity.

    Where a will includes a number of legacies and a general residuary-devise for charitable purposes, and two of the three attesting witnesses are connected with one of the charities benefited, in the capacity of trustees, while the third witness is an officer in several of the religious and charitable organizations benefited, the witnesses are disqualified under the act of 1855 and the charitable gifts fail.
    Argued April 13, 1910.
    Appeal, No. 59, Jan. T., 1910, by the Foreign Missionary Society et al., from the final decree of O. C. Franklin Co., confirming report of auditor in Estate of Ann E. Fetterhoff, deceased.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Exceptions to report of W. O. Nicklas, Esq., auditor. Before Gillan, P. J.
    Ann E. Fetterhoff died on November 17, 1906, testate, leaving to survive her her mother and sister. Her will, dated March 17, 1906, besides providing bequests for a number of relatives, included legacies to the First Church of the United Brethren in Christ, and to the treasurer of the Old People's Home; and the residuary estate, in equal shares, was devised to the following institutions and societies connected with the United Brethren Denomination: Foreign Missionary Society, Home Missionary Society, Church Erection Society, Woman's Missionary Society, Beneficiary Fund, Union Biblical Seminary, Lebanon Valley College, and the Quincy United Brethren Orphanage and Home. The will was attested by three witnesses, Rev. W. H. Washinger, J. C. Peters and W. O. Appenzellar. Peters and Appenzellar were members and trustees of the First Church, and Washinger was presiding elder of the Pennsylvania Conference, trustee of Lebanon Valley College, director of Quincy Orphanage, and director of Home Missionary Society. The trustees of the church and all the societies and organizations served without compensation.
    On these facts the auditor found that these witnesses were not disinterested, and the bequests to charitable and religious uses were invalid. Exceptions were filed to the auditor’s report, which were overruled and final decree entered.

      Errors assigned were in holding that the attesting witnesses were not disinterested, and in entering decree as above.

      Walter K. Sharpe and John O. Johnson, with them John D. Rice and Irvin C. Elder, for appellant.
    None of the subscribing witnesses had any such interest as would be within the prohibition of the act. Their interest was merely sentimental and not that pecuniary, vested and legal interest contemplated by law: Snyder v. Bull, 17 Pa. 54; Combs’ & Hankinson’s App., 105 Pa. 155; Jordan’s Est., 161 Pa. 393; Sorg v. First German Evangelical St. Paul’s Congregation, 63 Pa. 156; Daries v. Morris, 17 Pa. 205; Shortz v. Unangst, 3 W. & S. 45.
    Although the two necessary witnesses, Appenzellar and Peters, may not be "disinterested” by reason of their connection with the First Church, this does not render invalid the bequests to the other institutions, in which they had no interest.

      O. C. Bowers, with him T. Z. Minehart and Bonbrake & Zacharias, for appellee.
    The act of 1855 is not to be regarded as an act relating to the competency of witnesses in the ordinary sense of that term. The question of interest of an attesting witness is not a question of evidence at all. The disqualifying interest need not, and indeed cannot be, a present, certain or vested interest: Combs’ App., 105 Pa. 155.

      July 1, 1910:
    The proposition cannot be ruled on kind or quantum of interest, but only on the fact of interest. If the witnesses are so interested in the church as to render them incompetent as witnesses to a will containing bequests to that church, it follows, that they are incompetent entirely as witnesses to the will, and all charitable bequests fail: Kessler’s Est., 221 Pa. 314.
   Per Curiam,

The religious and charitable bequests and devises of the testatrix are void for her failure to have the execution of her will attested by two credible and, at the time, disinterested witnesses, as required by the Act of April 26, 1855, P. L. 328. Under Kessler’s Est., 221 Pa. 314, no one of the three attesting witnesses was disinterested. Nothing more need be said, and the decree is affirmed at appellants’ costs.


author: Mk. Justice Brown,

text:
    Jeanes’s Estate.

      Wills — Charitable bequests — Attesting witness — Disqualifying interest —Act of April 86,1856, P. L. 388.

    1. Interest which under the act of 1855 disqualifies a witness from attesting a will containing religious or charitable bequests must be a present, certain and vested one. It must not be uncertain, remote or contingent.
    2. An attesting witness to a will is not so interested as to be disqualified under the act of 1855 because the testatrix directs a company, of which the witness is a stockholder and vice president, to pay the dividends on certain shares of its stock to a charity, upon the latter’s fulfilling certain conditions.
    Argued April 13, 1910.
    Appeals, Nos. 70 and 99, Jan. T., 1910, by Naomi Rhoads Walter et al., from decree of O. C. Phila. Co., Oct. T., 1907, No. 496, dismissing exceptions to adjudication in Estate of Anna T. Jeanes, deceased.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.

      Exceptions to adjudication.
    The executors named in the will were the Pennsylvania Company for Insurances on Lives, etc., Joseph Wharton, Alfred Moore and Warner Walter, to whom, except Joseph Wharton, letters testamentary were duly granted — the will and codicils having been proved by Lewis A. Balz and Helen E. Pennypacker, attesting and subscribing witnesses. The will was executed February 24, 1907, and the last codicil August 5, 1907, the testatrix having died September 24, 1907.
    Other facts appear in the opinion of the Supreme Court.

      Error assigned was in dismissing exceptions to the adjudication.

      James Gay Gordon, with him Joseph R. Rhoads, for Naomi Rhoads Walter, appellant.

      James Gay Gordon, with him Francis Macomb Gumbes, for Chalkley Holt and Seth W. Holt, appellants.
    The interest of a stockholder in a trustee corporation disqualifies him: Kessler’s Est., 221 Pa. 314; Philadelphia, etc., R. R. Co. v. Hickman, 28 Pa. 318; Hill v. Frazier, 22 Pa. 320; U. S. v. Johns, 4 Dallas, 412; Phila. Ins. Co. v. Washington Ins. Co., 23 Pa. 250; Irvine v. Lumbermen’s Bank, 2 W. & S. 190; Marion Ben. Society v. Com., 31 Pa. 82.
    An executor cannot be an attesting witness under the act of 1855: Snyder v. Bull, 17 Pa. 54; Combs’ & Hankinson’s App., 105 Pa. 155; Jordan’s Est., 161 Pa. 393.
    The interest which disqualifies need not be “substantial” in quantity: Kessler’s Est., 221 Pa. 314; Grayble v. York & Gettysburg Turnpike Road Co., 10 S. & R. 269; Scott v. MeLellan et al., 2 Maine, 199; Marquand v. Webb, 16 Johnson (N. Y.), 89.
    ' John G. Johnson, with him Maurice Bower Saul, John D. Rice, Irvin C. Elder, Walter K. Sharpe, for Alfred Moore, Warner Walter and the Pennsylvania Company for Insurances on Lives, executors and trustees, appellee.
    July 1, 1910:
    A trustee like an executor is disinterested, and commissions do not disqualify: Snyder v. Bull, 17 Pa. 54; Jordan’s Est., 161 Pa. 393; Combs’ App., 105 Pa. 155; Kessler’s Est., 221 Pa. 314.

      Clement B. Wood, with him Morgan, Lewis & Bockius, for Germantown Trust Company, appellee.

      Fell & Spalding and Joseph T. Bunting, for trustees of Philadelphia Yearly Meeting of Friends, appellee.
   Opinion by

Mk. Justice Brown,

The testatrix, a single woman, gave the bulk of her large estate to charities. Collateral next of kin whom she remembered — the closest being a first cousin — seek to avoid this disposition of her estate, on the ground that her will was not duly attested by two credible and, at the time, disinterested witnessses, as required by the Act of April 26, 1855, P. L. 328, relating to bequests or conveyances for religious or charitable uses. The two attesting witnesses were Lewis A. Balz and Miss H. E. Pennypacker. The- first, at the time he attested the will, was the vice president of the Pennsylvania Company for Insurances on Lives and Granting Annuities and the owner of eight of the 20,000 shares of its capital stock. Miss Pennypacker was in the employ of the company as a stenographer and typewriter. Each of these attesting witnesses was paid a remunerative salary by the company, and Balz was receiving dividends on his eight shares of stock. The company was named as one of the four executors of the will of the testatrix and qualified as such. One of the clauses in the will is as follows: “I hereby Will and direct that the Pennsylvania Company for Insurances on Lives and Granting Annuities shall hold the one hundred and forty-eight (148) shares of Stock of the said Company now held by it in the name of Mary Jeanes and accredited to her Estate — the dividends and interest accruing therefrom to be paid to the Treasurer or Managers of the Women’s Hospital of Philadelphia, North College Avenue and Twenty-second Street, as long as the said Hospital is maintained as a Special Hospital for Women and Children and without wards for men, but should this exclusive character of the aforesaid Hospital be abandoned or disregarded, or the Managers decline to accept this conditional bequest, I hereby Will and direct that the aforesaid One Hundred and forty-eight shares of Stock of the Pennsylvania Company for Insurances on Lives and Granting Annuities shall revert and accrue as my bequest and donation to the Incorporated Trustees of Philadelphia Yearly Meeting of Friends for the benefit of Hospitals or Infirmaries of the '.Quarterly Meeting Boarding Homes for Aged and Infirm Friends and those in sympathy with us.’ ” It is to this clause that the appellant turns as evidence of the disqualification of Balz as an attesting witness. He was not disqualified because his company would receive commissions as one of the executors: Jordan’s Est., 161 Pa. 393; and Miss Pennypacker was not an interested witness because she was an employee of the company: Combs’ & Hankinson’s App., 105 Pa. 155. But it is strenuously insisted that Balz was not a disinterested witness, because the company in which he was a stockholder might receive commissions as an alleged trustee on the dividends which it might have to pay to the women’s hospital on the 148 shares of stock. In paying these dividends to the women’s hospital it would be rendering a service which every corporation gratuitously renders to its stockholders. It had rendered this service to Miss Jeanes during her lifetime, and what greater labor or responsibility would be imposed upon it in paying the dividends to her appointee? It is scarcely conceivable that the company would claim compensation as trustee for paying these dividends, and, if claimed, it would hardly be allowed: Harrison’s Est., 217 Pa. 207. If compensation, however, should be demanded and allowed, it surely would not exceed $100 per annum, and the interest of Balz, even if $100 should be paid, would be four cents a year, and even this sum would never be directly paid to him. The very narrow question, then, is, Was he, at the time he attested the will, so interested as to be disqualified from attesting it, because the testatrix had directed that his company should, on certain conditions, pay to the women’s hospital the dividends on the 148 shares of stock? If he was interested within the contemplation of the act, the amount of his interest would be immaterial, for the doctrine de minimis non curat lex has no application. The test is not quantity, but quality.

Interest which, under the act of 1855, disqualifies a witness from attesting a will containing religious or charitable bequests must be a present, certain and vested one. It must not be uncertain, remote or contingent: Combs’ & Hankinson’s App., and Jordan’s Est., supra; Kessler’s Est., 221 Pa. 314. Applying this rule to the will before us, it is difficult to follow the process of reasoning by which it is attempted to show that Balz was an interested witness when he attested it. It is first to be observed that no bequest or devise is made to any religious or charitable institution in which he was in any manner interested, and it is next to be noted that there is not even an absolute gift of the 148 shares of stock to the company in which he was a stockholder, to be held by it as trustee for any religious or charitable use. The direction of the testatrix upon which the appellant relies in asking that Balz be declared an interested witness is merely that his company pay the dividends on the 148 shares of stock, under her control at the time she executed her will, to the women’s hospital, provided it would accept her conditional bequest. For a subsequent breach of the condition the stock is given directly to a named charity. So long as the company might pay the dividends to the women’s hospital it would simply be rendering a service common to all of its stockholders. It has absolutely no interest in the stock itself, nor in ' the use to which the dividends may be put by the women’s hospital while entitled to receive them.

The interest which it is contended disqualified Balz was in the compensation which might be paid to the company in which he was a stockholder. If, under the direction in the will that it pay these dividends to the women’s hospital, it could charge and would be entitled to receive compensation for paying them, it would be compensation for services rendered. The services which it renders as executor are the services of a trustee, and the reasoning of our cases, which hold that the compensation to an executor for his services does not disqualify him from attesting a will, applies with no less force to the services which may be rendered by the Pennsylvania Company for Insurances on Lives and Granting Annuities in paying the dividends to the women’s hospital. But, apart from this, the interest of the company, if it can be termed such within the contemplation of the act of 1855, in the direction to pay the dividends was uncertain and contingent, and that of Balz was at least equally so. No such disqualifying interest was in the mind of the legislature when it was wisely enacted that a testator, during the last calendar month of his life, should be free from the importunities and influences of designing persons, who, from present, certain and vested personal interest in religious or charitable institutions, might, if so inclined, improperly turn his thoughts to them and away from the natural objects of his bounty. A reasonable meaning is to be given to the words “two credible, and, at the time, disinterested witnesses,” and it would be torturing them to include Balz within them, because, at the time of his attestation of the will, he might have had an uncertain, remote and contingent interest to the extent of not more than four cents a year in the earnings of his company, under the direction of the testatrix that, upon certain conditions, it pay dividends on certain shares of its stock to her appointee.

But for Kessler’s estate, it is doubtful if this appeal would be here. Except as to the compensation to the executors, there is no analogy between the cases. Wilmerton, the attesting witness in Kessler’s estate, “was a trustee and officer in a church to which part of the income and ultimately a portion of the corpus of the trust estate was directed to go; he had an option to purchase certain shares of stock which were a part of the trust for religious and charitable uses, at a price to be agreed upon by three disinterested persons, to be selected in a particular manner; he was one of two trustees to whom the stock of the Kessler Wagon Works Company was given in trust to vote at corporate elections, and whose duties required that dividends received be paid by them to the charities named and in the proportions fixed in the will; he was also a stockholder and director in the wagon company, as well as an officer and employee, and had whatever benefit accrued to him as a stockholder and officer in that company by reason of having the power to vote the stock so held in trust by him.”

The unanimous opinion of the court below on the exceptions to the adjudication of the learned auditing judge is approved here and the decree affirmed at appellant’s costs.


author: Mr. Justice Stewart,

text:
    Baker v. Thompson, Appellant.

      Negligence — Fire—Jumping from burning building — Proximate cause.

    In a suit to recover damages for personal injuries received in an attempt to escape from a burning hall a recovery will be set aside where the evidence of plaintiff shows conclusively that the proximate cause of the accident was not the alleged negligence of defendant in failing to provide a proper egress from the hall but a blow from a chair, thrown by an unknown person, which stunned plaintiff and prevented her from using the main stairs in front, by which everybody else in peril escaped.
    Argued April 21, 1909.
    Appeal, No. 268, Jan. T.,

      July 1, 1910:
    1908, by defendants, from judgment of C. P. Blair Co., June T., 1908, No. 127, on verdict for plaintiff in case of Juniata Baker v. Annie Thompson & David Thompson.
    Before Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Bell, P. J.
    The facts appear in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $2,191.66. Defendants appealed.

      Error assigned was in refusing to give binding instructions for defendants.

      W. I. Woodcock, with him M. D. Patterson, for appellants.

      Thomas H. Greevy, with him E. G. Brotherlin, for appellee.
   Opinion by

Mr. Justice Stewart,

This action is for injuries sustained in jumping from a burning building, and the negligence charged on the trial to the defendants, its owners, was their failure to provide proper means of egress from it in case of fire. It was two stories high, the second story having been a hall in which public entertainments were given. It was leased to the proprietor of a moving picture show for the evening of February 28, 1906, and at the performance then given the plaintiff was employed by the proprietor of the, show to furnish instrumental music. If the proximate cause of the injuries which she sustained was the failure of the defendants to provide adequate means of egress from the hall in case of fire, this verdict should not be disturbed. As the building was but two stories high there was no statutory duty resting upon the owners to erect fire escapes, and the jury were so instructed; but the case was submitted to them to find whether the defendants had done what persons of reasonable and ordinary prudence ought to have done to guard an audience in their hall against danger from fire. The jury found from the evidence that the defendants had not properly safeguarded the hall, and they further found, what they ought not to have been permitted to find, that the failure to so guard it was the proximate cause of plaintiff’s injuries.

Everybody who left the hall by way of the stairway at the entrance passed safely from the building. The plaintiff and a niece started for this stairway, the latter holding the former’s hand. As they were thus proceeding the plaintiff was knocked down by a chair, which, according to an allegation in the statement, was thrown by direction of an agent of one of the defendants. That the plaintiff was knocked down by a chair thrown by some one, is the only conclusion to be reached from her own testimony; but there was no evidence that either of the defendants was in any way responsible for its having been thrown. The plaintiff testifies that when she was knocked down by it she was stunned and lay on the floor in an unconscious condition, and, upon regaining consciousness, went to one of the windows, and, passing through it out on a roof, jumped to the ground, sustaining the injuries for which she is seeking compensation from the defendants. The jury were instructed that she could not recover unless the negligence of the defendants was the proximate cause of her injuries. The negligence charged against them was failure to provide proper means of egress from their hall in case of fire, but the evidence conclusively showed otherwise; for if the plaintiff had proceeded to the stairway, the means of egress from the hall provided by the defendants, she would have passed safely down it from the building, as did all the others who were in the hall. Nothing done or omitted to be done by the defendants interfered with her so proceeding, but the throwing of a chair by some one — an independent cause, for which, the defendants were not responsible, and which they could not reasonably have anticipated — stopped her, and after she recovered from the shock of the blow, she sought another way of leaving the hall. This was through no fault of the defendants. They had provided a safe way out of the hall, which through the fault of another, the plaintiff was not permitted to use, and that fault was the proximate cause of her injuries.

The thirteenth assignment of error is sustained and the judgment reversed.


author: Mr. Justice Moschzisker,

text:
    Lincoln v. Africa.

      Practice — Equity—Equity rules — Procedure •— Partition — Master-Costs.

    1. Since the adoption of the new equity rules, a master in partition merely executes the decree of the court after the rights of the parties have been judicially determined; before a master may be appointed to make partition the court must ascertain the interests and titles of the parties, and enter a decree that partition shall be made.
    2. Where a decree for partition is taken pro confesso for want of an answer, and the case is forthwith referred to a master to make the-partition, without any prior adjudication, all proceedings after the filing of the original bill will be set aside; and the appellate court in reversing the case will direct the plaintiffs to pay the costs made by them, including the master’s fee, and the defendants to pay their own costs.

      Practice — Equity—Partition—Decree—Confirmation—Appeals.
    3. The report of a master returning a scheme of partition must be followed by a decree of confirmation before further proceedings are had. The decree then made is a final decree from which an appeal may be taken.

      Statute of frauds — Parol sale of lands — Tenants in common — Partition.
    4. There can be no valid parol sale of lands among tenants in common possession, as there can be no such delivery of possession as will fake the case out of the statute,

      5. Whore a bill in partition avers a parol sale of the interest of one of the tenants in common, and alleges a reconversion, the bill and the evidence in support of it must fully and specifically show the dates and all the facts relating to the alleged reconversion.

      Statute of frauds — Parol sale of lands — Evidence.
    6. To take a parol contract for the sale of land out of the operation of the statute of frauds, the contract must be distinctly proven, the land must be clearly designated, and open, notorious, and exclusive possession must be taken and maintained, under and in pursuance of the contract.

      Equity — Equity -practice — Partition—Amended hill.

    7. Where a plaintiff in a bill in partition takes a decree pro confesso, and subsequently desires to amend the bill or the record, he must serve notice of the amendment upon the defendant personally, or upon an attorney whose appearance has been duly entered upon the record for the defendant.
    Argued April 18, 1910.
    July 1, 1910:
    Appeal, No. 168, Jan. T., 1909, by Jane Miller, defendant, from decree of C. P. Hunting-don Co., May T., 1908, No. 148, confirming return of sale in case of J. G. Lincoln and C. H. Glazier v. Lena Africa, J. Stewart Africa, Jane Miller and W. M. Miller.
    Before Brown, Mbstrezat, Potter, Stewart and Moschzisker, JJ.
    Reversed.
    Bill in equity for partition. Before Woods, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree confirming return of sale by the master.

      L. II. Beers and Howard L. Henderson, for appellant.

      R. W. Williamson and J. F. Schock, with them J. R. & W. B. Simpson, for appellees.
   Opinion by

Mr. Justice Moschzisker,

The appeal in this case brings up the record of a partition proceeding in equity. Several errors are presented, at least one of which is fundamental. Instead of a trial before a referee, or in open court, as required by the equity rules, this case was practically tried before a master in chancery, an office expressly abolished by the new rules. In Palethorp v. Palethorp, 184 Pa. 585, under similar circumstances, we said: “The fact is brought to our attention by an examination of this record that the equity rules have been utterly disregarded, and that there has been no trial had in this case. We cannot consider a decree made under such circumstances as an adjudication upon any question to which it relates. The appointment of the master was a simple nullity. The proceedings before him were coram non judice, and therefore a nullity. The decree resting upon his report has absolutely nothing to support it, and it is therefore a nullity. . . . We have but one thing to do in this case, and that is by no means a pleasant one. We must treat this record as it actually is, as an incurable series of mistakes, and set aside all that has been done since the appointment of the master, by him, or by the judge of the court below resting upon or in any manner relating to what the master has done.” These words are appropriate and applicable to the present case.

In a partition proceeding in equity, if the case is not sent to a referee under rule 69, the equity rules require that the court, and not a master, shall find all the relevant facts concerning the properties involved and the interests of the various parties, and that an adjudication shall be filed in the usual form containing these findings and the conclusions of law thereon, with a decree for partition: Palethorp v. Palethorp, supra. The proper procedure is shown in Palethorp v. Palethorp, 194 Pa. 408. Since the adoption of the new rules, the master merely executes the decree of the court after the rights of the parties have been judicially determined; before a master may be appointed to make partition the court must ascertain the interests and titles of the parties, and enter a' decree that partition be made. The decree for partition must, rest upon the findings and conclusions of the court; after such an adjudication and only thereafter, the case may be sent to a master: Equity Rule 60; Act of July 7, 1885, P. L. 257, sec. 2. Here there was no hearing as required by the equity rules, and no adjudication was filed. A decree for partition was taken pro confesso for want of an answer, and the case was forthwith referred to a master to make the partition. The fact that a bill is taken pro confesso is no reason for a departure from the rules requiring an adjudication in the usual form before the entry of the decree for partition and the appointment of the master. When a decree is taken pro confesso the court may make its findings from the averments of the bill, if they are sufficient; and if not sufficient, then rule 29 provides that “the plaintiff, if he requires any discovery or aiiswer to enable him to obtain a proper decree shall be entitled to process of attachment against the defendant to compel an answer.” The averments in the present bill were in several particulars insufficient to justify the requisite findings to sustain a decree for partition.

The master held a meeting at which the appellants were not present, and proceeded to make findings of fact and reach conclusions of law from the insufficient averments of the bill. In his report he finds that the properties embraced in the bill had been owned by Andrew Hefner; that at his death Hefner directed by will that his real estate be sold by his executors and the proceeds divided among his children; that by mutual consent and agreement among the beneficiaries under this will the real estate was accepted and held by them as tenants in common as if there had been no direction to sell, and “thereby each of said beneficiaries became entitled to and was the holder of an undivided one-sixth interest in said lands;” that the appellant, Jane Miller, intermarried with William Miller; that she by a parol agreement sold her undivided one-sixth interest to certain of her brothers and sisters for a price only part of which had been paid; that this interest had since become vested by purchase in the plaintiffs, the appellees, and Jane Miller was simply the holder of an equitable interest under which she was entitled to receive from the plaintiffs the unascertained balance of the purchase money. The bill originally filed contained an averment that the parol sale was made in the year 1886, but an amended bill striking out this date was subsequently filed by leave of court. The record does not disclose when the election to reconvert the interests of the parties into real estate occurred, nor does it show the date of the marriage of Jane. Miller, or the date of the parol sale; and there is no sufficient averment of exclusive possession taken under and in pursuance of the alleged parol contract of sale. “The rule is well settled, that to take a parol contract for the sale of land out of the operation of the Statute of Frauds, the contract must be distinctly proven, the land must be clearly designated, and open, notorious, and exclusive possession must be taken and maintained, under and in pursuance of the contract:” Overmeyer v. Koerner, 81* Pa. 517; Bowers v. Bowers, 95 Pa. 477. It is not clear, but under the averments of the present bill it would appear that at the time of the alleged parol sale all the heirs had a common possession of the lands in question. “There can be no valid parol sale of lands among tenants in common possession, as there can be no such delivery of possession as will take the case out of the statute:” Spencer and Newbold’s Appeal, 80 Pa. 317; Hill v. Meyers, 43 Pa. 170; McCormick’s Appeal, 57 Pa. 54; Bowers v. Bowers, supra. If the parol sale took place after the marriage of Jane Miller and after the reconversion of the property into real estate, it might not only be held void under the statute of frauds, but also for want of the joinder of her husband. Therefore full and specific averments including dates are most material. Again, the record does not show any sufficient averment in the bill or evidence offered, to prove the fact of the alleged election upon which the finding as to the reconversion rests. The court below states in one of its opinions: “It developed that among the records of the Huntingdon county orphans’ court a paper was on file signed by all the parties and showing this alleged election.” If that record is depended upon for the purpose of proof it should be produced, as the fact of the reconversion is most material to the right of partition. We refer to these matters, so that when the record goes back to the court below, as it must, the bill may be amended, or if necessary proper evidence may be brought before the chancellor on the points involved.

The record shows that the amended bill was filed about four months after the original bill had been taken pro confesso and on the very day that the master filed his report of partition. Apparently no notice of the motion to amend was served upon the appellant, and the service of the amended bill was accepted by T. W. My ton, Esq., as her attorney. There is nothing upon the record to show that Mr. Myton ever entered his appearance as attorney for Mrs. Miller, and she denies his authority to bind her by the acceptance of service. If the plaintiffs desired to rest upon the decree pro confesso, they should not have filed the amended bill but should have taken proper proceedings to amend the original record; and if they desired to fix the appellant with notice of the amendment, the service should have been a personal one or should have been made upon an attorney whose appearance was duly entered upon the record.

We cannot sustain the contention that the appeal taken March 26, 1909, was not in time. The decree of September 21, 1908, was only nisi, and no attempt was made to enter a definitive decree on the report of the master until November 4, 1908. The report of the master returning a scheme of partition is like the return of the inquest in the orphans’ court, and must be followed by a decree of confirmation before further proceedings are had. “ The decree then made .... is definitive and final... . . It precedes any order of sale or any allotment of the purparts. From this final decree any person aggrieved may appeal:” Christy’s Appeal, 110 Pa. 538. In the present instance the court below made the order of sale without confirming the report of the master, and on December 12, 1908, a final decree was entered confirming this sale.

Since the appellant is entitled to stand upon the firm ground that all the decrees complained of are void for the reason that they rest upon a fatally defective antecedent record, it is not necessary to discuss the various assignments covering the several refusals to permit her to enter a defense on the merits. When this record is again in the court below she will have an opportunity to present her defense if she so desires.

“We were compelled to treat a decree as a nullity because of the violation of the equity rules in the case of the Chester Traction Co. v. P. W. & B. R. R. Co., 180 Pa. 432, and to lay down the rule that where an equity case has been tried in violation of the equity rules of January 15, 1894, the Supreme Court will upon appeal set aside the decree together with all proceedings in the cause after the case was put at issue, .... and will direct that each party shall pay its own costs made since the cause was at issue:” Palethorp v. Palethorp, 184 Pa. 585. In the present case, considering all the circumstances as shown by this record, we conclude that the ends of justice, will be best served by this order: All the proceedings since the filing of the original bill are set aside, the plaintiffs to pay the costs made by them, including the master’s fee, the defendants to pay their own costs. The record is remitted to the court below with a procedendo.