author: Mr. Justice Moschzisker,

text:
    Kucker v. Sunlight Oil & Gasoline Company, Appellant.

      Constitutional law — Statutes—Delay in raising question as to constitutionality.

    1. While a court should hesitate to declare a statute unconstitutional until clearly satisfied of its invalidity, and where it has been on the statute books for many years the hesitation should be all the greater, yet, if such an act is plainly in conflict with the organic law of the state, old age cannot give it life, and when the issue of its constitutionality is properly raised, it must be declared void.

      Constitutional law — Inspection of merchandise — Oil—State offices— Article III, sec. 27, of the constitution — Act of May IS, 1874, P- L- 1S9.

      2. The Act of May 15, 1874, P. L. 189, entitled, “An Act for the better security of life and property from the dangers of coal and petroleum oils” and providing for the inspection of oils, and the appointment of inspectors, violates sec. 27 of art. Ill of the constitution which provides that “no state office shall be continued or created for the inspection or measuring of any merchandise, manufacture or commodity, but any county or municipality may appoint such officers when authorized by law.”
    3. Even if the act should not bo construed as establishing a system of state inspection, and should be construed as an attempt to provide for county inspection, it would infringe the prohibition against local and special laws contained in sec. 7, art. Ill, of the constitution, and would contravene sec. 5 of art. XIV, which provides that in counties containing over 150,000 inhabitants, county officers shall be paid by salary, and not by fees.

      Equity — Costs—Constitutional law — Division of costs.

    4. Where in an equity suit the only question involved is the constitutionality of a statute, and it appears that the constitutionality of the statute had never been challenged before, and that the defendant had acquiesced in its validity for many years, the Supreme Court in reversing a decree of the court below upholding the constitutionality of the act, will direct that the costs shall be divided.
    Argued Jan. 10, 1911.
    Appeal, No. 230, Jan. T., 1910, by defendant, from decree of C. P. No. 4, Phila. Co., March T., 1908, No. 4,249, on bill in equity in case of George W. Kucker v. Sunlight Oil & Gasoline Company.
    Before Fell, C. J., Beown, Mesteezat, Pottee, Elkin and Moschziskee, JJ.
    Reversed.
    Bill in equity for an injunction. Before Willson, J.
    The facts appear by the opinion of the Supreme Court.
    The court entered the following decree:
    And now, to wit, June 30, 1910, the above case having been heard on bill, answer, replication and proof, the court do order and decree that an injunction issue forthwith ordering and directing the defendant, its agents and servants not to sell or offer for sale or dispose of, for use in the commonwealth of Pennsylvania, any oil for illuminating purposes, benzine or naphtha which has not been duly inspected by the plaintiff and further ordering and directing the defendant not to place any brands on any packages containing oil in this county certifying that the same has been inspected or that the same is of a certain fire test unless the same shall have been duly inspected in this county by the plaintiff.

      Error assigned among others was the decree of the court.

      Ruby R. Vale, with him Albert Smith Faught, and Avery D. Harrington, for appellant.
    The Act of May 15, 1874, P. L. 189, is unconstitutional in that it violates sec. 7 of art. Ill of the constitution of the commonwealth of Pennsylvania, that “the general assembly shall not pass any local or special law .... regulating the affairs of counties . . . . ” or “ creating offices or prescribing the powers or duties of officers in counties:” Ruan Street, 132 Pa. 257; Lloyd v. Smith, 176 Pa. 213; Davis v. Clark, 106 Pa. 377; Morrison v. Bachert, 112 Pa. 322; Sample v. Pittsburg, 212 Pa. 533; Seabolt v. Commissioners, 187 Pa. 318; Com. v. Gilligan, 195 Pa. 504; Com. v. Patton, 88 Pa. 258; Scowden’s App., 96 Pa. 422; Bell v. Allegheny County, 149 Pa. 381; Scranton v. Silkman, 113 Pa. 191; Townsend v. Wilson, 7 Pa. C. C. Rep. 101; Miller v. Cunningham, 7 Pa. C. C. Rep. 500; Ayars’ App., 122 Pa. 266; McCarthy v. Com., 110 Pa. 243.
    The Act of May 15, 1874, P. L. 189, is unconstitutional in that it violates the requirements of sec. 5, art. XIV, of the constitution of the commonwealth of Pennsylvania, that “in counties containing over one hundred and fifty thousand inhabitants all county officers shall be paid by salary:” Philadelphia v. McMichael, 208 Pa. 297; Morrison v. Bachert, 112 Pa. 322; McCleary v. Allegheny Co., 163 Pa. 578; Com. v. Collier, 213 Pa. 138; Nissley v. Lancaster County, 215 Pa. 562; Hower v. Wayne County, 21 Pa. C. C. Rep. 289; Com. v. Oellers, 140 Pa. 457; Taggart v. Com., 102 Pa. 354; Porter v. Shields, 200 Pa. 241; Butcher v. Philadelphia, 21 Pa. C. C. Rep. 459; Melvin v. Summerville, 210 Pa. 41.

      February 27, 1911:
    The act of May 15, 1874, is unconstitutional in that it violates the requirement of sec. 3, art. Ill, of the constitution of the commonwealth of Pennsylvania, that “no bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title:” Philadelphia v. Ry. Co., 142 Pa. 484; Phoenix-ville Borough Road, 109 Pa. 44.
    The court has power now to determine the unconstitutionality of the Act of May 15, 1874, P. L. 189: Com. v. Hazen, 207 Pa. 52; Orkney St., 194 Pa. 425; Hilliard v. Enders, 196 Pa. 587; Gallagher v. MacLean, 193 Pa. 583; Franklin v. Hancock, 18 Pa. Superior Ct. 398; Com. v. Ayers, 17 Pa. Superior Ct. 352.

      Edwin O. Michener and Preston K. Erdman, for appel-lee.
    The act is not local: Hower v. Wayne Co., 21 Pa. C. C. Rep. 289; In re Registration of Campbell, 197 Pa. 581.
    The office of oil inspector is not a county office: Knisely v. Cotterel, 196 Pa. 614; Phila. v. Martin, 125 Pa. 583; Schuylkill Co. v. Pepper, 182 Pa. 13; Bartley v. Patton, 19 Phila. 496; Sheboygan v. Parker, 70 U. S. 93; Butler’s App., 73 Pa. 448; Allen’s App., 81* Pa. 302; Com. v. Wick-ersham, 90 Pa. 311; Renick v. Boyd, 99 Pa. 555; Pardee’s App., 100 Pa. 408; Bucher v. Com., 103 Pa. 528; Monongahela Bridge Co. v. Railway Co., 114 Pa. 478.
   Opinion by

Mr. Justice Moschzisker,

The plaintiff filed a bill in equity praying that the defendant be restrained from selling or offering for sale any oils not duly inspected and branded in the county of Philadelphia, and from placing any brands on packages in that county certifying that the contents had been inspected, or that the oils were of a certain fire test, unless the plaintiff had made an inspection of the same; and further praying that the defendant be decreed to render an account for all oils sold by it in said county during the period of the plaintiff’s incumbency of office, and to pay the fees which would have been chargeable by the plaintiff against the defendant for testing, inspecting and branding such oils. The bill avers that the plaintiff was appointed inspector of oils by the mayor of the city of Philadelphia, on October 21, 1907, under the provisions of the Act of May 15, 1874, P. L. 189; that the defendant is a corporation engaged in the said city, “in keeping in store for sale and consumption, and in selling coal oil ... . and other manufactures of refined oil from crude petroleum, . . . that it sells such oils without inspection and branding as required by the act of assembly; and that the defendant has refused to permit a test of the oils sold by it or to pay the plaintiff his fees.

For the purposes of the present appeal it is sufficient to say that the answer admits the appointment of the plaintiff as oil inspector, but avers that the act of May 15, 1874, supra, is unconstitutional, and therefore not binding upon the defendant; it denies that the defendant ever prevented or endeavored to prevent the plaintiff from making inspections, but insists that no such right exists owing to the unconstitutionality of the act; and it avers that the fees have not been paid because of this invalidity of the act under which they are claimed.

The act in question deals with the inspection of coal and petroleum oils. Section 1 forbids the sale “within the limits of the Commonwealth of Pennsylvania” of any such oils “the fire test of which shall be less than 110 degrees Fahrenheit;” sec. 2 provides that the test “shall be determined by inspectors appointed under the provisions of this Act,” and states precisely how such tests shall be made; sec. 3 provides for the appointment of inspectors, confining them to counties “wherein said .... oils . . . . are manufactured;” sec. 4 provides for the term of office of the inspectors and for the appointment of deputies; that they shall be paid out of fees, and fixes such fees; and it further defines the powers and duties of the inspectors and gives them the right to make inspections in counties where such oils are not manufactured, and the privilege to make re-inspections; sec. 5 provides for violations of the act and punishments; sec. 6, for seizures in certain instances; sec. 7 inflicts penalties on inspectors violating the act; sec. 8 provides how packages shall be branded; and sec. 9 exempts oils manufactured for export.

The pleadings below and the assignments of error here, raise the issue of the constitutionality of this act; and no question of jurisdiction was raised or mooted in either court. The trial judge disposed of all the constitutional points in the case by saying: “If this were a recent piece of legislation there might be found .... a sufficient basis for holding the act invalid. However, it is now more than thirty-five years since the statute was passed, and it has been acted upon without attack, and has been under construction by the courts at various times during that period. I am of the opinion that, applying the law found in Sugar Notch Borough, 192 Pa. 349, it is my duty to consider any radical defects such as the defendant relies on, if they exist, to have been cured, or, at least, to regard the question raised as too belated and stale to entitle it to consideration at the present time.” It is apparent that the learned court below misconceived the Sugar Notch Borough case. While a court should hesitate to declare a statute unconstitutional until clearly satisfied of its invalidity, and where it has been on the statute books for many years the hesitation should be all the greater, yet, if such an act is plainly in conflict with the organic law of the state, old age cannot give it life, and when the issue of its constitutionality is properly raised, it must be declared void. We have never ruled to the contrary. In Com. v. Hazen, 207 Pa. 52, an act was declared unconstitutional after it had been on the books for thirty-two years, and in Orkney Street, 194 Pa. 425, after thirty-three years; and many other like instances could be cited. Although the fact that the act of 1874 has been before this court on several occasions must be given serious consideration in questioning its constitutionality, yet, since that issue was not raised in any of those cases, it cannot be considered as adjudicated. Therefore, so far as our decisions were concerned, the question was an open one for the court below.

Section 27 of art. Ill of the constitution provides: “No State office shall be continued or created for the inspection or measuring of any merchandise, manufacture or commodity, but any County or municipality may appoint such officers when authorized by law.” Inspection is, “ Something which can be accomplished by . . . ., weighing or measuring the thing to be inspected, or applying to it at once some crucial test: ” People v. Compagnie Gen-érale Transatlantique, 107 U. S. 59. When we look at sec. 2 of the act under consideration there can be no question but that it provides for an inspection within the meaning of the constitution; and sec. 3 provides in terms, “The said inspector shall be appointed by the courts of common pleas, one in each county of the Commonwealth wherein said .... oils .... are manufactured; Provided, That in any county where there shall be more than one court of common pleas, the said appointments shall be made by court number one in said counties, and in any county wherein is situate a city of more than three hundred thousand inhabitants, in such case in lieu of court number one, the appointment of inspector shall be made •by the Mayor of said city.”

Should we view the act in the light of an attempt to provide for county inspections as authorized in the constitution, then material parts of it infringe the prohibition against local' and special laws contained in sec. 7, art. Ill, of that instrument. After, in the first section, defining a crucial test, and making the statute apply not only to the counties wherein such oils are manufactured, but to all places where they are “sold or offered for sale” throughout the Commonwealth, and in the second section expressly providing that such test “shall be determined by inspectors appointed under the provisions of this Act,” the third section confines the appointment of the inspectors to a restricted class of counties, viz., those “wherein said oils .... are .... manufactured;” then, in dealing with the method of making the appointments, it attempts to differentiate such counties. The effect of this is to localize the legislation, for the proposed classification is inelastic; it does not depend upon population but upon purely artificial conditions to bring other counties within its limits; and neither it nor the differentiation, or sub-classification, is founded upon any real distinctions in the subjects classified. More than this, since the benefits of the legislation were intended for every county in the state, there is no apparent reason to support the classification. Again, if we regard the persons who are to make the inspection as county officers, the application of the act to the facts in this case contravenes sec. 5 of art. XIY of the constitution, which provides that in counties containing over 150,000 inhabitants such officers shall be paid by salary and not by fees. However, it is not necessary to discuss these points for we are of opinion that the intention was not to authorize inspection by counties, but to provide a state inspection by state officers.

If the constitution permitted such inspection, the inspectors being agents of the state, we might consider the method of their appointment a matter of detail, which, though not general and uniform, would not avoid the act: Knisely v. Cotterel, 196 Pa. 614. But the trouble is that the statute is right in the teeth of the prohibition against state inspection of merchandise, manufactures or commodities. It may be that this provision of the constitution has outlived its usefulness and that it is contrary to the tendency of the times, but the question of its abandonment is for the legislature and the people, and not for us. We must construe the law as we find it, and the constitution says in plain words that there shall be no such state inspection as provided for in the act which the plaintiff depends upon to support the relief granted by the court below. This being so, we have no choice but to reverse the decree and dissolve the injunction.

The act in question having been upon the statute books since 1874, its constitutionality never having been challenged before, and the defendant having acquiesced in its validity for many years, we deem it just that the costs should be divided.

The first assignment of error is sustained, the final decree is reversed, and the injunction thereby granted is dissolved. The appellant and the appellee to divide the costs.


source: Caselaw Access Project

author: Mr. Justice Stewart,

license: Public Domain

text:
    Rosenblatt, Appellant, v. Weinman.

      Contract — Indemnity—Profits—Losses—Stock transaction — Practice, C. P. — Sufficiency of statement — Affidavit of defense.

    1. A contract of indemnity against loss in certain stocks and other securities in consideration of the privilege of sharing in expected profits, wherein no date is fixed for the termination of the contract, gives either party a right to end it at his pleasure providing good faith be observed.
    2. Where in such a case the party indemnified sues the indemnifier for a sum representing the difference between the cost of the securities and their market rating on the stock exchange on a certain date, claiming that on such date the plaintiff gave positive and unequivocal notice to the defendant of the termination of the contract, the plaintiff is not entitled to judgment for want of a sufficient affidavit of defense, when the statement of claim filed admits that notwithstanding the notice of a termination of the contract the plaintiff continued thereafter to hold the securities in his own name, and that they remained unconverted at the time of the bringing of the action, and it is not claimed that the retention of the securities was pursuant to an understanding or agreement with the defendant.
    3. When a pledgee sells stock upon notice he is disqualified from purchasing the stock.
    4. To entitle a plaintiff to judgment for want of a sufficient affidavit of defense, the statement of the demand under the Act of May 25, 1887, P. L. 271, must be self-sustaining.
    Argued Jan. 10, 1911.
    Appeal, No. 309, Jan. T., 1910, by plaintiff, from order of C. P. No. 5, Phila. Co., March Term, 1910, No. 772, discharging rule for judgment for want of a sufficient affidavit of defense in case of Lizzie Rosenblatt to use of Benjamin Rosenblatt v. Harry Wein-man.
    February 27, 1911:
    Before Fell, C. J., Brown, Mestbezat, Potter, Elkin, Stewart and Moschziskeb, JJ.
    Affirmed.
    Assumpsit on a contract of indemnity.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.

      Emanuel Furth, with him David Borlin, and Jacob Singer, for appellant,
    cited: Plumly v. Plumly, 6 Pa. C. C. Rep. 72; McGough v. Jamison, 4 Penny. 154; Sigua Iron Co. v. Yandervort, 164 Pa. 572.

      Julius C. Levi, for appellee,
    cited: Vogt v. Cope, 66 Cal. 31 (4 Pac. Repr. 915); Weightman v. Union Trust Co., 208 Pa. 4.49; Central Trust Co. v. Trust Co., 100 Fed. Repr. 545; Marston v. Gould, 69 N. Y. 220; Rosenblum v. Stolzenberg, 36 Pa. Superior Ct. 644; Bill Posting Sign Co. v. Jermon, 27 Pa. Superior Ct. 171; Tourison v. En-gard, 30 Pa. Superior Ct. 179; New York Trust Co. v. Langcliffe Coal Co., 227 Pa. 630.
   Opinion by

Mr. Justice Stewart,

The contract out of which this action arises was before us for consideration in Rosenblatt v. Weinman, 225 Pa. 200, the parties to that controversy being the same as here. We held it to be a contract of indemnity against loss in certain stocks and other securities in consideration of the privilege of sharing in expected profits; that no date having been fixed for the determination of the contract, it rested with either party to end it at his pleasure, providing good faith be observed. The only question in the former case was whether the plaintiff, who had possession and control of the securities, had by positive act or declaration terminated the contract relation. • All that there appeared was, that at the time when the market value of the securities was much below the price at which they were purchased, the plaintiff said to the defendant that he wanted the transaction closed out; that he wanted the money and not the securities; that defendant remonstrated and asked that the securities be held for a rise in the market. We held that this was not sufficient to charge the defendant with loss as shown by the market quotations on the day on which this conversation occurred; that instead of being a notice of a determination to end the contract relation, it indicated acquiescence in the defendant’s demand for continuance of the relation, “especially in view of the fact that plaintiff continued to retain both the stock and bonds.” Following our decision in that case the plaintiff began the present suit claiming that on another and later date, to wit, November 27, 1906, he gave positive and unequivocal notice to the defendant of the termination of the contract, accompanying it with a demand for the sum of $2,360.50, the difference between cost of the securities and their market rating on the Philadelphia Stock Exchange on that date. The statement of claim filed admits that notwithstanding this notice of a termination of the contract, the plaintiff continued thereafter to hold the securities in his own name and that they remained unconverted at the time of the .bringing of the present action. It is not claimed that the retention of the securities was pursuant to an understanding or agreement with the defendant, but it is insisted that, without any agreement to this effect, it was the plaintiff’s right to retain the securities and charge the defendant with their depreciation as shown by the market reports on the day he made demand. The question here raised, while not directly passed upon in the former case, falls clearly within the spirit and the reasoning of the ruling there made. Our emphasis in that case of the fact that plaintiff had retained the securities unconverted was to show acquiescence on his part in defendant’s demand for a continuance of the relation. The clear implication from the language used in the opinion is, that the retention of the securities was wholly inconsistent with the claim that the relation had been dissolved; and so it is and must be. To meet the question directly, we now say that it is not only inconsistent with such claim, but is conclusive against it. When the defendant handed over to the plaintiff the securities in which the money had been invested, and which the former had held in his own name for a whole year, a relation was created which called for the exercise of the utmost good faith on the part of the plaintiff. The latter had then become the holder of the securities and the defendant’s written obligation as well. While, strictly speaking, it cannot be said that the relation was that of pledgor and pledgee, yet in its essential features it so closely approaches that we fail to see why the rules governing that relation should not be applied here. The ultimate liability of the defendant, in amount, depended on 'what the securities yielded. In all such cases, except where there is express agreement to the contrary, the extent of the party’s liability can only be determined by sale made in the open market upon notice, from which the party selling is excluded as a purchaser. In other words, it is well established that when a pledgee sells stock upon notice, he is disqualified from purchasing the stock. The rule is based upon the principle that the pledgee owes a duty to the pledgor and will not open the door to possible devices of the pledgee for the purchasing the stock for himself at a low price: 2 Cook on Corporations (6th ed.), sec. 479. In Diller v. Brubaker, 52 Pa. 498, it is expressly held that a pledgee or a holder of a collateral security cannot appropriate it in satisfaction of the debt intended to be secured at his own option, unless, in pursuance to a contract to that effect; nor sell it without first giving notice to the pledgee of his intention to do so, in order that he may have an opportunity to redeem it if he so desire, and that the sale must be public when it is made. All the considerations which give rise to these rules governing pledgees are present here, and the case calls for the application of these rules. In view of what we have said as to the law, this statement of claim shows no cause of action, it being admitted therein that the securities had been appropriated by the plaintiff. It results that judgment for. want of sufficient affidavit of defense was properly refused. “To entitle a plaintiff to judgment for want of a sufficient affidavit of. defense, the statement of his demand under the Act of May 25, 1887, P. L. 271, must be self-sustaining; that is to say, it must set forth in clear and concise terms a good cause of action, by which is meant such aver-ments of facts as, if not controverted, would entitle him to a verdict for the amount that is claimed:” Chestnut St. Nat. Bank v. Ellis, 161 Pa. 241.

The appeal is dismissed.


text:
    Neilson’s Appeal.

      Evidence — Practice, C. P. — Commissioner of foreign court — Answer to interrogatories — Oral examination — Act of June 25, 1895, P. L. 279.

    1. Where a commission issued by the court of another state for the examination of witnesses in this state permits inquiries of witnesses necessary to explain and elucidate answers already given to the written interrogatories, the commissioner may apply to the common pleas for an order requiring the witnesses to answer oral questions, but in his application there must be a specific averment of the particular interrogatories and the answers complained of, so that the court may judge whether or not such answers require explanation or elucidation. The Act of June 25, 1895, P. L. 279, worked no change in policy in such proceedings.
    2. A court of this state commits error in directing answers to oral questions on the application of a commissioner appointed by a court of another state where the court is not asked to, and as a matter of fact does not, pass upon the sufficiency of any of the answers already given and the examination is not restricted to the elucidation of any designated answers, and this is so although the permission for oral examination is restricted to questions necessary to explain fully the answers already given to the written interrogatories.

      February 27, 1911:
    Argued Jan. 17, 1911.
    Appeal, No. 123, Jan. T., 1910, by Lewis Neilson and Michael Trump, from order of C. P. No. 3, Phila. Co., Dec. T., 1909, No. 5,400^ making absolute rule to answer oral questions in re petition of Paul It. Brown, commissioner appointed by the circuit court for Somerset County, State of Maryland.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Petition of commissioner appointed by a foreign court for rule on witnesses to compel answers to oral questions. Before McMichael, J.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was order making rule absolute and directing the witnesses to answer.

      John Hampton Barnes, for appellants.
    There is no ground upon which the courts in this state should, upon any consideration of comity, enforce the order improperly made by the court of Maryland for oral examination of witnesses: Act of May 23, 1887, P. L. 158; International Coal Mining Co. v. R. R. Co., 214 Pa. 469; Doubt v. R. R. Co., 6 Pa. Dist. Rep. 238; Miller v. Dowdle, 1 Yeates, 404; Simpler’s Petition, 25 Pa. C. C. Rep. 81; Sprague v. Greenwald, 5 Pa. Dist. Rep. 631; Carter v. Blair, 10 Pa. Dist. Rep. 749; Buck v. Strong, 6 Pa. Dist. Rep. 116.

      Paul R. Brown and James E. Ellegood, for appellee.
    The order was proper: Doubt v. R. R. Co., 6 Pa. Dist. Rep. 238; International Coal Mining Co. v. R. R. Co., 214 Pa. 469; McKenzie’s Case, 2 Pars. 227; Robb’s Pet., 1 Pa. Dist. Rep. 367; Buck v. Strong, 6 Pa. Dist. Rep. 116; Carter v. Oil Co., 5 Pa. Dist. Rep. 640; Shockley v. R. R. Co., 109 Md. 123 (71 Atl. Repr. 437).
   Opinion by

Mr. Justice Moschzisker,

The appellee, Paul R. Brown, was appointed by the circuit court of Somerset county, Maryland, as a commissioner to examine witnesses in Philadelphia in a certain proceeding pending in that court. The commission was accompanied by written questions and provided that “in addition to the interrogatories .... the parties to the suit may ask such other questions as aro pertinent to the issues involved and are necessary for the purpose of more fully explaining and elucidating the evidence and the answers given to the interrogatories.” Certain witnesses appeared before the commissioner and answered the interrogatories, but they refused to answer oral questions asked by counsel for the plaintiff. Upon application by the commissioner the court below directed the witnesses to make reply to such oral questions as might be necessary to explain fully and elucidate the evidence and the answers given to the interrogatories sent with the commission. The witnesses have appealed, and assign this order for error.

The only decision upon the point at issue which has been cited to us is Miller v. Dowdle, 1 Yeates, 404, decided in 1794, which, if it is to be given any weight, favors the appellants. But a line of well-considered cases from the common pleas shows a continued policy of confining the examination of witnesses before commissioners appointed by outside courts to the written interrogatories accompanying the commission. The judicial view seems to be that since our courts can have no knowledge of the issues other than as written- in the interrogatories, they ought not to compel a citizen of this state to submit himself to an oral examination over which they can have no direct control or supervision. We ought to do all within reason to assist the courts of a sister state, but no rule of comity calls upon us to subject one of our citizens to a roving oral examination which it would be most difficult, if not impossible, to keep within legitimate bounds, and which might prove unjustifiably annoying, vexatious, and harmful to the witness. In a proper case where the commission permits an oral examination, the commissioner might apply to a court here for an order requiring a witness to reply to certain oral questions put by him. But they must be inquiries necessary to explain and elucidate answers already given to the written interrogatories, and there must be a specific averment of the particular interrogatories and the answers complained of, so that the court may judge whether or not such answers require explanation or elucidation. This course was not pursued in the present case. The court below was not asked to, and in point of fact did not, pass upon the sufficiency of any of the answers, many of which appear to be full and comprehensive. It is true that the permission for the oral examination was restricted to questions necessary for the purpose of fully explaining the answers already given to the written interrogatories. But since there were forty-four interrogatories, and the examination was not restricted to the elucidation of any designated answers, the order as made would practically subject the witnesses to an open oral examination upon the whole case. This is contrary to the established administrative policy of our law and cannot be sustained.

The Act of June 25, 1895, P. L. 279, worked no change in policy. The act particularly provides that the taking of testimony upon commission and interrogatories was not intended to be thereby superseded, and, so far as the cited cases show, the common pleas courts have with unanimity properly ruled that oral depositions will not be permitted thereunder unless a special and substantial reason is shown for departing from the previously established practice.

The assignment of error is sustained and the order of the court below is reversed at the cost of the appellee.


author: Mr. Justice Brown,

text:
    Bullitt v. Philadelphia, Appellant.

      Municipalities — Increase of indebtedness — Signification of desire by councils — Ordinance—Notice of election — Assessed valuations — Act of April 80, 1874, P- L- 66.

    1. The direction in the Act of April 20, 1874, P. L. 65, relating to the increase of. municipal indebtedness, that the municipal authorities shall “by their ordinance or vote,” signify “a desire to make such increase of indebtedness,” is mandatory, and is not complied with by an ordinance in which the councils both ordain “that the debt of the said city shall be increased in the sum of eight million dollars,” and direct that an election shall be held.
    2. Where an election to increase the municipal indebtedness was held in the city of Philadelphia on the third Tuesday in February, 1910, and the notice required by the Act of April 20, 1874, P. L. 65, was first published on January 22, 1910, the last preceding assessed valuation which could have legally appeared in the notice was the assessment finally adjusted on or before February 1, 1909. If it appears that the figures which were actually published in the notice were $12,000,000 in excess of the assessment adjusted on or before February 1, 1909, the courts are bound to hold that the election held in pursuance of the notice was illegal and void. In such a case it is immaterial how the figures actually published were obtained.
    Argued Jan. 23, 1911.
    Appeal, No. 378, Jan. T., 1910, by defendants, from decree of C. P. No. 4, Phila. Co., Dec. Term, 1909, No. 5,460, awarding an injunction in case of Logan M. Bullitt, Charles C. Binney, Barton C. Hirst, Charles F. Jenkins, Theodore J. Lewis, George D. Porter and Walter Wood v. City of Philadelphia, John E. Rey-burn, Mayor of the City of Philadelphia, and John M. Walton, controller of the city and county of Philadelphia.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stew-, art and Moschzisker, JJ.
    Affirmed.
    Bill in equity for injunction to restrain the negotiation of a loan of $8,000,000.
    From the record it appeared that on December 31, 1909, councils of the city of Philadelphia passed the following ordinance:

      “Section 1. The Select and Common Councils of the City of Philadelphia do ordain, That the debt of the said City shall be increased in the sum of eight million (8,000,000) dollars for the following purposes: For the purchase of sites and the erection of buildings for elementary schools, one million seven hundred and fifty thousand (1,750,000) dollars; for children’s playgrounds, one hundred thousand (100,000) dollars; for the completion of filtration work at Queen lane, five hundred and twenty-five thousand (525,000) dollars; for repaving streets not occupied by passenger railways, two hundred thousand (200,000) dollars; for main sewers, two hundred and fifty thousand (250,000) dollars; for new bridges, one hundred thousand (100,000) dollars; for resurfacing with asphalt streets not occupied by passenger railways, three hundred thousand (300,000) dollars; for grading, three hundred thousand (300,000) dollars; for new macadam roads, one hundred thousand (100,000) dollars; for branch sewers, two hundred thousand (200,000) dollars; for paving intersections, one hundred thousand (100,000) dollars; for the improvement of the harbor, six hundred thousand (600,000) dollars; for the high pressure fire system in the mill district, five hundred thousand (500,000) dollars; for sites and erection, improvement and alterations to police and fire stations, two hundred and sixty-five thousand (265,000) dollars; for fire and police apparatus and equipment, one hundred thousand $100,000) dollars; for Cohocksink sewer, fifty thousand (50,000) dollars; for League Island Park, two hundred and fifty thousand (250,000) dollars; for mandamuses, one million (1,000,000) dollars; for Parkway, one million (1,000,000) dollars; for monument and history of Philadelphia soldiers and sailors, one hundred thousand (100,000) dollars; for restoration of Congress Hall, lighting Independence Hall and Square, sixty thousand (60,000) dollars; for the erection of hospital buildings for contagious diseases, one hundred and fifty thousand (150,000) dollars.
    “Sect. 2. That for the purpose of obtaining the assent of the electors to the increase of indebtedness set forth in Section 1, an election shall be held in pursuance of the Act of June 9, 1891, at the usual places of holding elections, at the election to be held on the third Tuesday of February, 1910, that notice of said election shall be given by the corporate authorities of the municipality by weekly advertisements, in not exceeding three newspapers of the said City, during at least thirty days prior to the said election, and the said notice shall contain a statement of the amount of the last assessed valuation of the taxable property of the said City, the amount of the existing debt, the amount of percentage of the proposed increase and the purpose for which the indebtedness is to be increased, and the City Commissioners are hereby authorized and directed to prepare and distribute the necessary ballots as provided for in the laws of the State of Pennsylvania governing the increase of indebtedness of municipalities.”
    In pursuance of the provisions of the second section of this ordinance, notice of the election which the ordinance directed should be held upon the third Tuesday of February, 1910, was given, by advertisement, in three newspapers in said city. These advertisements began on January 22, 1910, and were continued for four weeks. In the notice the amount of the last assessed valuation of taxable property in said city was stated to be $1,388,675,057. The existing net debt was stated to be $84,901,620.22. The amount of the proposed increase of indebtedness was stated to be $8,000,000. The percentage of the proposed increase of the indebtedness to the amount of the last assessed valuation of the taxable property of the said city was stated to be .0057tflM?. The purposes for which the indebtedness of the city was proposed to be increased were stated to be the same as those which are set forth in the first section of the ordinance. At the election held on the third Tuesday of February, 1910, a majority of the electors voting on the question of the increase of the indebtedness voted in favor of such increase.

      The court granted the injunction on the ground of the insufficiency of the notice and the failure of councils to signify by ordinance or vote its desire to increase the debt of the city.

      Error assigned among others was decree awarding the injunction.

      James Alcorn, city solicitor, and John G. Johnson, for appellants.
    The ordinance was a sufficient compliance with the statute: Barr v. Philadelphia, 191 Pa. 438.
    The election authorizing the increase of the city’s debt was valid: Elliot v. Philadelphia, 229 Pa. 215; Selig v. Philadelphia, 19 Pa. Dist. Hep. 907; Seymour v. Tacoma, 6 Wash. 427 (33 Pac. Repr. 1059); Coloma v. Eaves, 92 U. S. 484; San Luis Obispo v. Haskin, 91 Cal. 549 (27 Pac. Repr. 929); Brown v. Street Lighting District, 70 N. J. Law, 762 (58 Atl. Repr. 339); Cheyenne v. State, 17 Wyo. 90 (96 Pac. Repr. 244); State v. Salt Lake, 35 Utah, 25 (99 Pac. Repr. 255); Dishon v. Smith, 10 Iowa, 212; Hes-seltine v. Wilbur, 29 Wash. 407 (69 Pac. Repr. 1094).

      Thos. Raeburn White, with him Robert D. Jenks, for ap-pellees.
    The requirements of the statute with regard to the publication of notice are mandatory: Hoffman v. Pitts-burg, 229 Pa. 36; Clark v. Luzerne Boro., 196 Pa. 210; Whitherop v. Titusville School Board, 7 Pa. C. C. Rep. 451; Com. v. Blankenburg, 218 Pa. 339.
    The statement of the amount of the “last assessed valuation” was substantially erroneous and misleading: Elliot v. Philadelphia, 229 Pa. 215; Chicago, etc., R. R. Co. v. Wilber, 63 Neb. 624 (88 N. W. Repr. 660).
    Other cases which rule that the assessed valuation is only to be determined by an examination of the books, after final revision has been made, are: Levy v. McClellan, 196 N. Y. 178 (89 N. E. Repr. 569); Rathbone v. Kiowa County Commissioners, 27 C. C. A. 477 (83 Fed. Repr. 125); Board of Education of Huron v. National Life Ins. Co., 36 C. C. A. 278 (94 Fed. Repr. 324); State v. Babcock, 24 Neb. 640 (39 N. W. Repr. 783); Kingsberry v. Pettis County, 48 Mo. 207; Hopper v. Inhabitants of Union Twp., 54 N. J. Law, 243 (24 Atl. Repr. 387); Wilson v. Board of Education of Huron, 12 S. D. 535 (81 N. W. Repr. 952); State v. Tolly, 37 S. C. 551 (16 S. E. Repr. 195); Prickett v. City of Marceline, 15 C. C. A. 700 (69 Fed. Repr. 462); Germania Savings Bank v. Town of Darlington, 50 S. C. 337 (27 S. E. Repr. 846).
    February 27, 1911:
    The ordinance providing for the election was illegal, because not preceded by any ordinance or vote declaring the desire of councils for an increase of indebtedness: Hoyt v. East Saginaw, 19 Mich. 39.
   Opinion by

Mr. Justice Brown,

This appeal comes from a decree of court of common pleas No. 4 of the county of Philadelphia, enjoining an increase of the indebtedness of the city of Philadelphia, because two statutory requirements were disregarded by the municipal authorities in submitting to the electors of the city the question of the proposed increase.

New municipal indebtedness may be incurred and existing indebtedness increased to an amount exceeding two per centum upon the assessed valuation of property only with the assent of the electors of the municipality obtained “at a public election in such manner as shall be provided by law.” These words of the constitution are always to be borne in mind in passing upon the validity of an election authorizing the creation of new or the increase of old municipal indebtedness. The assent of the electors is to be obtained at a public election and in such a manner as the legislature may direct. This clause in the constitution was not self-operative, and there was imposed upon the legislature the duty of declaring the manner in which new municipal indebtedness may be incurred or an existing one increased. When, therefore, the legislature directs the manner in which this may be done, its words must be regarded as mandatory, for in no other manner can the municipality act in incurring new or increasing old indebtedness. If it attempts to do so in any other way than that pointed out by the legislature, the plain duty of the proper court, when appealed to, is to enjoin it, else the safeguard which the people have provided for themselves in their organic law will be no shield to them against municipal recklessness and improvidence. To hold municipal authorities to strict compliance with constitutional and legislative requirements involves no measure of hardship or inconvenience. On the other hand, it is easy to observe them, and, when they are plainly laid down as rules of municipal action, departure from them is almost certain to be followed sooner or later by trouble of some kind. Public authorities ought to understand this, especially after the repeated efforts of courts to enlighten them; and, when the requirements of the constitution and the statutes are disregarded, it becomes the plain duty of courts to enforce them.

The first legislation after the adoption of our present constitution, directing what must be done by a municipality when contemplating an increase of its indebtedness to an amount exceeding two per centum and not exceeding seven per centum upon the last preceding assessed valuation of the taxable property within the municipal limits, was the Act of April 20, 1874, P. L. 65. That act provides that whenever the corporate authorities of any city shall, by their ordinance or vote, have signified a desire to make an increase of municipal indebtedness, they shall give notice of a public election to be held for the purpose of enabling the electors to pass upon the question of the proposed increase. The first stop, then, to be taken by a municipality, if its indebtedness is to be lawfully increased, is action by its authorities — in the case of a city, by its councils — indicating their "desire to make such increase of indebtedness,” and such action must be taken by them “by their ordinance or vote.” These words, which are repeated in the Acts of June 9, 1891, P. L. 252, and May 1,1909, P. L. 317, are not merely directory; they are mandatory, for the constitutional mandate is that municipal indebtedness shall not be increased to an amount exceeding two per centum without the assent of the electors of the municipality, obtained “at an election in such manner as shall be provided by law.” The law provides that, before any such election can be held, notice of it is to be given by publication for at least thirty days; but, before such notice can be given, another requirement is that the corporate authorities “shall have signified a desire to make such increase of indebtedness.” The words of the act are “whenever the corporate authorities of the city shall have signified” such a desire, they may then give the notice directed by the act, and, as still more clearly indicating the legislative intent that such action must first be taken, is the provision that the election shall take place on the day of the municipal or general election, “unless more than ninety days elapse between the date of the ordinance or vote desiring such increase and the day of holding the said municipal or general election.” The question of the necessity of compliance by a municipality with the requirement of an expression by its authorities of a desire for the increase of indebtedness was considered and passed upon in Hoffman v. Pittsburg, 229 Pa. 36, where we said, inter alia: “In view of this foregoing clear statutory provision, twice repeated, the first step to be taken by a municipality in undertaking to increase its indebtedness is action by its corporate authorities, by ordinance or vote, expressive of their desire that the increase shall be made. With the wisdom of this legislation courts have nothing to do. . . . The constitutional requirement is that municipal indebtedness is to be increased to an amount exceeding two per centum upon the assessed valuation of taxable property only with the assent of the electors at a public election in such manner as shall be provided by law, and the statutory provision is that before such election can be authorized by the municipal authorities they must first act by giving expression, by ‘ordinance or vote,’ of their desire for the increase. If it were our province to pass upon the wisdom of this provision, we would commend it. To the select and common councils of a city, as their representatives, its electors commit the direct supervision of the municipal affairs and what ought to be done or not done by the city should always, in the first instance, be passed upon by those whose special duties are to inform themselves as to the municipal needs and who are presumed to be able to act with more intelligence than the ordinary elector upon whatever affects the welfare of the municipality. Councils are deliberative bodies, possessing means not possessed by the electors generally of obtaining knowledge upon every subject relating to the welfare of the city, and the statutory requirement that they first signify their desire for an increase of indebtedness gives to the electors whom they represent the benefit of their deliberate judgment, after duly considering the necessity of making improvements and the cost thereof, that the increase ought to be made.”

Neither by ordinance nor vote did the councils of the city of Philadelphia express their desire that the indebtedness of the city should be increased. What they did was to ordain “that the debt of the said city shall be increased in the sum of eight million ($8,000,000) dollars,” and in the same ordinance proceeded to direct that an election should be hold. But where did they get any authority to ordain that the said indebtedness should be increased? Their enactment was but a dead letter, for they were utterly powerless to increase the indebtedness before the electors of the city, in the manner provided by law, had authorized them to do so. And these electors could not have given them such authority until they, as the representatives of the electors, had, by ordinance or vote, as required by the statute, publicly expressed their desire for the increase. But we need not dwell further upon this feature of the case, as it is sufficient to know that the legislature has provided that a condition precedent to the right of municipal authorities to submit to the electors the question of an increase of municipal indebtedness is an expression by the authorities, in council assembled, of their desire that the increase be made; and, as this is a legislative requirement, it must be complied with: Hoyt v. East Saginaw, 19 Mich. 39. In that case the charter of the city provided that the common council should have full power to make necessary public improvements, directing, however, that when they should deem any such improvement necessary, they should so declare by resolution. A petition was presented to them for the grading of a certain street, and they resolved “that the petition be received and the improvement be ordered.” The charter of the city merely required that when the common council deemed any improvement in the streets or highways necessary, they were to so declare by resolution; but there was nothing in the charter expressly directing that such resolution should precede the passage of an ordinance directing the improvement to be made. Nevertheless, the very learned Cooley, C. J., in holding that such precedent resolution was necessary, said: “It may seem perhaps, that the legislature have been over particular in requiring from the council an express preliminary declaration that they deem the improvement necessary, when the fact that they order it to be made is evidence that such is their opinion; and it has been argued in this case that the resolution of June 11, 1866, ought to be accepted as equivalent to the one made necessary by the charter, and as a sufficient compliance with the legislative requirement. It is evident, however, that if we hold this resolution sufficient, we also hold that the provision cited from the charter is idle, and one a compliance with which may be dispensed with in any case. We have no authority to treat any part of a legislative enactment which is not ambiguous in itself and is capable of reasonable application, as so far unimportant that it is a matter of indifference whether it is complied with or not. We must suppose the legislature saw sufficient reason for its adoption, and meant it to have effect; and whether the reason is apparent to our minds or not, we have no discretion to dispense with a compliance with the statute. . . . The declaration of the necessity for the improvement is a distinct act from and precedes the order that the improvement shall be made. It is the commencement of the proceeding, and is as indispensable to give the council jurisdiction as is process of the voluntary appearance of parties in civil actions to give jurisdiction to a court. It is the first of several steps, which if duly and regularly taken, may result in fixing a lien upon the property of the citizen, and even in depriving him of it against his will. This step having never been taken, the whole proceeding is a nullity.” The rule as laid down in Hoffman v. Pittsburg, 229 Pa. 36, that the expression of desire by councils is to be by a separate and independent ordinance or vote, will not be pared down, and the disregard of this statutory requirement by the councils of the city of Philadelphia called, without more, for the injunction issued by the court below.

Keeping in mind that the right of the city to increase its indebtedness is to be exercised only as the statutes direct, we come to the second reason given by the learned court below in declaring the proposed increase invalid. The act of April 20, 1874, passed to give effect to the eighth section of art. IX of the constitution, provides that municipal indebtedness may be increased to an amount exceeding two per centum and not exceeding seven per centum upon the last preceding assessed valuation of the taxable property within the municipality, and a requirement of the act is, that before an election can be held to pass upon the proposed increase, thirty days’ notice of it must be given to the electors, which notice must contain a statement of the amount of the last assessed valuation of property. The election in this case was held on the third Tuesday in February, 1910. The notice given to the electors that it would be held on that day was first published on January 22, 1910. In this notice the assessed valuation of property within the city was stated to be $1,388,675,057. Where or how these figures were obtained is utterly immaterial, if they were not those of the last preceding assessed valuation of property. Under Elliot v. Philadelphia, 229 Pa. 215, the last preceding assessed valuation which could have appeared in the notice of the election published on January 22, 1910, was the assessment finally adjusted on or before February 1, 1909, and that was $1,376,645,955. These figures were accessible to the municipal authorities, and nothing was to be substituted for them. As stated, it is immaterial where the figures $1,388,675,057 were obtained. They are $12,000,000 in excess of the assessed valuation which was to guide the electors in voting. For this discrepancy, which the law will not permit, the city must start afresh if its indebtedness is to be increased. The assignments of error are overruled and the decree affirmed at the cost of the city of Philadelphia.


text:
    Vaughan’s Estate.

      Wills — Trusts and trustees — Active trusts — Life estates.

    1. Where a testator, after giving his wife a life estate in all his property and directing that at her decease the property is to be equally divided between his three children, provides “Respecting the one third part to my daughter, I direct that the amount thereof be placed in the hands of my son, as trustee for her and sacredly guard the same for her and her children’s sole use and benefit; and account for the same here as he would .on that Great Day,” the trust is an active one and áfteiTíEéwíf?s~death”thU3a3gEteFTs not entitled to her share free of the trust thus created.
    2. Where the language employed by a testator in dealing with a bequest to a daughter constitutes a setting aside of part of the fund in question as the daughter’s share to be held in trust for her and her children, the daughter takes a life estate with remainder to her children in fee.
    Argued Jan. 23, 1911..
    Appeal, No. 337, Jan. T., 1910, by Lillian Vaughan Nixon, from decree of O. C. Phila. Co., April T., 1910, No. 202, dismissing exceptions to adjudication in Estate of Mary Catharine Vaughan, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    February 27, 1911:
    Affirmed.
    Exceptions to adjudication. Before Lamorelle, J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree dismissing exceptions.

      Frederick J. Geiger, with him David Lavis, for appellant,
    cited: Hague v. Hague, 161 Pa. 643; Peale’s Est., 31 W. N. C. 551; Lewis’s App., 108 Pa. 133; Heck’s Est., 170 Pa. 232; Pennock’s Est., 20 Pa. 268; Shirlock v. Shirlock, 5 Pa. 367; Pales v. Currier, 55 N. H. 392; Yost v. McKee, 179 Pa. 381; Sheetz’s App., 82 Pa. 213; Rodrigue’s App., 22 W. N. C. 358; Martin’s Est., 1 Pa. Dist. Rep. 167; Schwab’s Est., 22 Pa. C. C. Rep. 218; Wilson v. Bryn Mawr Trust Co., 225 Pa. 139.
   Opinion by

Mr. Justice Moschzisker,

Robert H. Vaughan died March 14, 1899. By his will dated December 15, 1896, he provided, inter alia, as follows: “I .... do hereby devise, .... all of the property and estate I am possessed of, .... to my dearly beloved wife, Mary Catharine Vaughan during her life. At her decease the same to be equally divided between my three children Thomas Vaughan, Lillian Vaughan Nixon- and Charles Vaughan. Respecting the one-third part to my daughter Lillian Vaughan Nixon, I direct that the amount thereof be placed in the hands of my son Thomas Vaughan, as trustee for her and sacredly guard the same for her and her children’s sole use and benefit, and account for the same here as he would on that Great Day.” The record shows that the daughter, Lillian Vaughan Nixon, had several children living at the date of her father’s will.

The widow died December 18, 1908, and her executors accounted for the fund held by the decedent as life tenant under the will of her husband. Lillian Vaughan Nixon claimed a one-third share in this fund free of the trust mentioned in her father’s will. The auditing judge held that the will created an active trust and awarded the third in question “to Thomas Vaughan in trust for Lillian Vaughan Nixon for the uses and purposes declared by the will of Robert H. Vaughan.” The award was subsequently sustained by the court in banc, and Lillian Vaughan Nixon filed this appeal.

The fund is distributable under the terms of the will of Robert H. Vaughan: Reiff’s App., 124 Pa. 145. But the question is, Should the one-third claimed by Lillian Vaughan Nixon have been awarded directly and absolutely to her, or was it properly awarded to Thomas Vaughan, trustee? The language employed by the testator in dealing with the bequest to his daughter constitutes a setting aside of one-third of the fund in question as the daughter’s share to be held in trust for her and her children. Under the law as established in Pennsylvania this gave the parent a life estate with remainder to her children in fee. The authorities on this subject are collated in Hague v. Hague, 161 Pa. 643. Also see Elliott v. Diamond C. & C. Co., ante, p. 423. It is true that the bequests to the two sons are absolute gifts and that if no language had been used to differentiate the bequest to the daughter, that also would have been absolute. But the testator, immediately after naming his three children, particularly provides that his daughter’s one-third shall be held in trust and that the duty of the trustee shall be to “sacredly guard the same for her and her children’s sole use and benefit, and account for the same.” The manifest intent of the testator was to prevent the property going directly into the control of his daughter, and to put its management in the trustee to preserve the remainders vested in her children. Such a trust is an active one: Mooney’s Est., 205 Pa. 418.

Rodrigue’s App., 22 W. N. C. 358, relied upon by the appellant, in no sense rules the case at bar. There, after , a devise to a daughter in fee, the testator executed a codicil

in which he directed that the share should be held in trust to apply the income to “her personal use, support and benefit from time to time as she may have need and require when by her demand in writing for herself and her children.” The bequest was not to the “daughter and her children.” It was for “her use and benefit,” the trustee to pay as “she might need and require,” and we held the trust to be a dry one, saying, “the trustees have no functions except merely to apply all the proceeds and profits of the estate to the personal use of the appellant as she might require them.”

The assignments of error are all overruled and the decree of the court below is affirmed at the cost of the appellant.


author: Mb. Justice Elkin,

text:
    Kuntz’s Estate.

      Executors and administrators — Removal of executor — Order to deliver assets — Bond for supersedeas — Practice, O. C.

    1. Where there is pending in the orphans’ court at one and the same time an appeal from a probate of a will, an application in the same estate for an issue devisavit vel non and a petition asking for the appointment of an administrator pendente lite, it is proper for the court to pass upon the petition for the appointment first and to appoint an administrator pendente lite if the facts warrant it. It is irregular practice to order all matters relating to these issues to be heard together, but such action of the court in itself is not reversible error. If, however, the court in dismissing the appeal, the application and the petition, at the same time enters a decree removing the executor upon a mere motion for removal, after all the testimony was in, and after it had refused to expunge averments in the petition which were only relevant upon the validity of the will and without bearing upon the removal of the executor, the decree of removal will be reversed.
    2. In such a case the executor has just ground for complaint, because he was not given an opportunity during the whole course of the hearing to fairly meet and answer any direct issue involving his peremptory removal as executor.
    3. Pending an appeal from an order removing an executor, the orphans’ court is not justified in making a peremptory order upon the executor to deliver over the assets in bis hands to an administrator who had been appointed in the meantime, where it appears that the executor had no time to file an account, that he had not been asked nor given an opportunity to enter security, that he was not charged with embezzlement, and that he was ready, as the evidence showed, to render an account of his administration of the estate.
    4. Where an executor, who has been removed from his office, ha3 surrendered all the personal assets, except household goods and effects, the orphans’ court in fixing the amount of the bond in order to make the appeal from the order of removal a supersedeas, should not include in such amount the value of the decedent’s real estate. The income from the real estate may be included,' but not the corpus.
    Argued Oct. 12, 1910.
    Appeals, Nos. 34 and 156, Oct. Term, 1910, by K. C. McConnell, executor, from decrees of O. C. Washington Co., Nov. T., 1908, No. 35^2, removing executor, etc., in Estate of Nancy W. Kuntz, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Petition for appointment of an administrator pendente lite. .
    The facts are stated in the opinion of the Supreme Court.
    Paragraphs 5, 6 and 11 of the petition asking for the appointment of an administrator pendente lite were as follows:
    5. That the husband of Nancy W. Kuntz died more than ten years prior to her death and that his will was duly admitted to probate and R. C. McConnell was one of the executors of said will and settled said estate, and, according to the reports filed by him, he paid, at the time of the settlement of said estate about ten years ago to the said Nancy W. Kuntz, $75,000, in cash and securities, and that under said will she became invested with the title to certain real estate which she still held at the time of her death; that the said Nancy W. Kuntz was at that time about sixty-five years of age and had no children and lived alone in the city of Washington except that at times she had a servant; that she was in no manner familiar with business and had transacted no business of any consequence during her lifetime and up to that period; that the said R. C. McConnell, whose office was a few doors from her residence, succeeded in establishing himself in the confidence of said Nancy W. Kuntz and thereafter and up to the time of her death handled all her business, making investments, transferring securities, collecting money, disbursing money, and in fact doing everything that there was to be done in the transaction of her business, she simply signing papers from time to time under his direction and signing checks in blank, under which he received or paid out money from her account in the bank; that he had absolute control and domination of the will of the said Nancy W. Kuntz and transacted all of said business and handled all of said securities from the time she received the same up to the time of her death.
    6. That as aforesaid she received from the estate of her husband about ten years ago the sum of $75,000 in cash and securities; that she was frugal and saving and lived very modestly and spent only such sums as would purchase the mere necessaries of life and, as petitioner believes, she did not expend more than the sum of $1,000 per year for living expenses.
    11. The petitioner shows the court that as charged in the petition of said Samuel Workman, who is contesting the will, the said R. C. McConnell drew said will, being the attorney and confidential adviser on legal and business matters for the said Nancy W. Kuntz during her widowhood, and that he drew said will in such manner that under its provisions he receives the sum of from $50,000 to $60,000; that said bequest under which he can derive this sum is not made openly and in such manner that the language can be understood by an ordinary person, but that his right to receive such money is veiled and covered under technical language copied from Beck’s App., 116 Pa. 547, such language being as follows:
    “Twenty-first: After the payment of all the foregoing legacies or bequests, expenditures and all other expenses of the carrying out of the provisions of this my last will and settling my estate considering those of my relatives, just and liberal, I do hereby give and grant unto my executor hereinafter named full and unlimited power and authority to appropriate or dispose of all the rest, residue and remainder of my estate, real and personal, or the proceeds arising from the sale thereof to such objects, persons or institutions as in his direction shall be best and proper, as I have full confidence in his judgment, ability and integrity in the premises.”
    That the said R. C. McConnell is then named as executor and under the said language and the decision of the Supreme Court aforesaid, he became vested with the full power to appropriate all of the residue of said estate, amounting to from $50,000 to $60,000 as aforesaid, based upon the property actually inventoried, and this petitioner charges that the said will was drawn as part of a scheme to defraud the heirs of the deceased and that upon the whole record the said R. C. McConnell is not entitled to continue as executor of said estate pending the will contest, but that he should be removed and a special administrator be appointed until the rights of the parties have been determined; that in view of his relations with the testator and the fact that he has handled the business in the manner stated, there is a necessity for an accounting between himself and said estate, and that he should not be permitted to act as such executor at least until all questions between the said estate and himself have been fully adjudicated.
    On a motion to expunge the above paragraphs, McIl-vaine, P. J., filed the following opinion:
    The exceptions filed in this case aver that paragraphs five, six and eleven of the petition filed by S. W. Fairall in this proceeding are impertinent and scandalous/ and the exceptant moves the court to expunge the same from the record for that reason; and he also alleges that S. W. Fairall is a nonresident of this state, and moves the court for an order requiring him to file a bond in a proper sum with sufficient sureties, conditioned for the payment of all the costs that he may be ordered to pay in this proceeding.
    The principal complaint of the exceptant under the first motion that he has made is that the present proceeding is intended by the petitioner to “obtain in advance of a hearing in the contest upon the will, the case to be made out by the proponents of the will.” He states that the averments as contained in the fifth, sixth and eleventh paragraphs of S. W. Fairall’s petition are substantially the same as contained in the petition for an issue devisavit vel non in this court, at No. 48, November Term, 1907, and that he has already answered these averments in that proceeding, and that a hearing will have to be had upon the issue raised by the averments and the answer filed; and he, in addition, avers that he is perfectly willing and ready to answer them in this proceeding if the court decrees it necessary. This presents two questions. First, are the allegations contained in the fifth, sixth and eleventh paragraphs of the petition filed in this proceeding irrelevant to the questions which the court will have to decide in determining whether the petitioner is entitled to the relief he prays for? A careful reading of the petition has satisfied us that they may not be wholly irrelevant, but that the facts therein alleged, if true, might throw some light upon the conduct of the executor since letters of administration were issued to him. We therefore overrule the motion to expunge from the record these three paragraphs of the petition.
    The second question for our consideration under this motion is whether or not the investigation in this citation can be made in any way to prejudice the investigation in the proceeding to No. 48, November Term, 1907, wherein an issue devisavit vel non is sought. We are of the opinion that this can be avoided by the court controlling the manner, the time and place of taking the testimony in the two proceedings; and when the time comes for the appoint.ment of an examiner to take testimony in this citation, if it is the desire of the exceptant we can direct the testimony to be taken before the same person that takes the testimony in the rule for an issue, and direct also that the examination of witnesses in support of the three paragraphs to which objection is here made and which are contained in the petition for an issue, shall be taken at one and the same time in duplicate, so that it can be reported separately with the testimony that is filed in each case.
    As to the motion for security for costs, it will be remembered that the petitioner as yet has had no opportunity to be heárd on that question, and any order that we make should be conditional, so as to allow him an opportunity to be heard, and we have filed an order in that form.
    And now, January 13, 1909, the exceptions to the petition of S. W. Fairall herein filed came on to be heard and were argued by counsel, whereupon, upon due consideration, the motion of the exceptant to expunge from the record paragraphs five, six and eleven of said petition, because impertinent and scandalous, is overruled and said exceptions dismissed at the cost of the exceptant.

      Errors assigned among others were (1) in refusing to expunge paragraphs five, six and eleven of the petition for the appointment'of an administrator pendente lite; (2) in ordering the supplementary petition for the removal of the executor filed as of record; (3) order of removal an.d .direction t.o deliver up assets; (4) order fixing amount of security for appeal; (5) order directing delivery of assets under peril of an attachment.

      John C. Bane, with him Boyd Grumrine and F. S. Mon-nett, for appellant.
    There was no legal ground shown for the removal: Harberger’s App., 98 Pa. 29; Gray’s Est., 4 Kulp, 157; Parson’s Est., 82 Pa. 465; Smith’s Est., 14 Pa. C. C. Rep. 161; Young’s Est., 4 Pa. Dist. Rep. 44; Lancaster’s Est., 7 Del. Co. Rep. 584; Levan’s Est., 1 Woodward, 104; Morgan’s Est., 20 Phila. 28; Wickersham’s Est., 4 Legal Gazette, 331.
    March 20, 1911:
    The bond required for a supersedeas was improper.
    The order requiring delivery of the assets was improper.

      R. W. Knox, with him Martin J. Wade, for appellees.
    There was ample ground shown for the removal: Miller’s Est., 174 Pa. 362; Deaven’s Est., 32 Pa. Superior Ct. 205; Johnson’s App., 114 Pa. 132; Lowry’s App., 114 Pa. 219; Miskimins’s App., 114 Pa. 530; Wall v. Royal Society of Good Fellows, 179 Pa. 355.
    The removal of an executor without citation having been issued has been sustained: Van Dusen’s App., 102 Pa. 224; Perrett’s Est., 14 Pa. Superior Ct. 611.
    The order to deliver assets was proper: Tome’s App., 50 Pa. 285; Bradley’s Est., 9 Phila. 327.
   Opinion by

Mb. Justice Elkin,

These two appeals have been argued and will be considered together. The first is from the decree removing appellant from his office as executor, and the second is from a later decree, which in order to avoid an attachment for contempt, required the removed executor to deliver and pay over to his successor, all of the unadministered assets, without first giving him an opportunity to file his account as executor and of having it audited in an orderly and proper manner. Both appeals grow out of the same proceeding and may very properly be considered together. As to the removal of appellant as executor it is earnestly contended that the proceedings were irregular and in violation of the statutes as well as of the rules of pleading and practice in such cases. The proceedings may be fairly criticised as being irregular, certainly out of the ordinary in dealing with such matters, but we cannot agree that they were in violation of any statute. The controversy is between those representing the next of kin of the testatrix and her executor who for many years had been her counsel and business adviser. An appeal from the probate of the will was pending when the petition which is the foundation of the present appeals was presented. After the appeal had been taken from the probate of the will, application was made for an issue devisavit vel non. While the appeal from the probate of the will and the application for an issue devisavit vel non were pending in the orphans’ court, one of the contestants presented his petition asking for the appointment of an administrator pendente lite. The ground for asking such an appointment was that the executor, who was also a beneficiary under the will, would have an unfair advantage as the legal representative of the estate in a contest involving the validity of the will itself. It will thus be seen that there were pending in the court at this stage of the proceedings, an appeal from the probate of the will, an application for an issue devisavit vel non and a petition asking for the appointment of an administrator pendente lite. The court did not make any decree relating to the appointment of an administrator pendente lite, but ordered all matters relating to these issues to be heard together and required duplicate copies of the notes of testimony to be transcribed in order that a copy could be filed ;.in each proceeding. This is one ground of complaint. Appellant contends that this confusion of issues made it difficult, if not impossible, to make his defense in a regular and orderly manner. If the facts warranted it, the appointment of an administrator pen-dente lite should have been made while the appeal from the probate was pending, and .not after that issue had been determined in favor of the proponents of the will. The very purpose for asking that such an appointment be made is to have the estate protected by a disinterested person while the matters in dispute are in litigation. The validity of the will was attacked and this was the issue between the parties. The appointment of an administrator pendente lite was only incidental to the real question involved. As it turns out, after taking several hundred pages of testimony on all the issues thus blended, the court dismissed the appeal from the probate of the will, refused the application for an issue devisavit vel non, thus sustaining the will, the real question in controversy, and then peremptorily ordered the removal of the executor which had not even been asked when the original petition was presented. It is true that a few days before the decree removing the executor was entered the court directed a motion in writing which had been presented by counsel for the original petitioner, asking for a peremptory order of removal, to be filed as a supplemental petition, and made part of the record in the case. This order was made after all the testimony had been taken, the case closed, the arguments made and the briefs submitted. One of the assignments of error is based upon this order. Standing alone, we would not consider this reversible error. Very great latitude is given the courts in the matter of allowing amendments, in order that the record may conform to the facts. But in allowing such amendments, care should be exercised not to prejudice the rights of the parties upon the merits of the case as presented upon the issues raised by the pleadings. In this connection complaint is made that paragraphs five, six and eleven of the petition asking for the appointment of an administrator pendente lite should have been expunged from the record as being irrelevant, impertinent and scandalous. It was argued in the court below and is contended here that this was an attempt upon the part of the petitioner to obtain in advance information to be used in support of the appeal then pending from the probate of the will. Most of the averments of these paragraphs have no relevancy to questions relating to the duties of appellant as executor, and even if true, did not furnish legal grounds for his removal under the Acts of March 29, 1832, P. L. 190, and May 1, 1861, P. L. 680. If relevant at all, the facts averred in these paragraphs could only be considered as relating to and bearing upon the making and validity of the will, and had nothing to do with the discharge of the duties of the executor under the will. Whether the court attached any importance to these averments in arriving at the conclusion that the executor should be removed because of failure to properly manage the estate, we do not know, nor does the record inform us. Evidently these paragraphs, and such proofs as may . have been offered to sustain them, were by the court deemed insufficient to affect the will, which was sustained. It would seem to necessarily follow that if the proofs of these averments were insufficient to affect the validity of the will, the only purpose for which they were relevant, they should not have been received and considered in connection with a separate and distinct issue to which they had no relevancy. Appellant clearly acted within his legal rights in asking these paragraphs to be éxpunged from the record, and we think it was error to refuse this request. As we view the record on this branch of the case appellant was not given an opportunity during the whole course of the hearing to fairly meet and answer any direct issue involving his peremptory removal as executor. When the appeal from the probate of the will was dismissed and the application for an issue devisavit vel non was refused, the record showed a valid will, duly probated, which controlled the distribution of the estate. By the terms of that will appellant was appointed executor, so that when the attack upon its validity had failed, he stood upon the record as the proper and legal representative of the estate. If the executor appointed by the testatrix to a,dminister her estate according to the provisions of her will is to be removed, and a stranger not of her selection appointed, it should be done.in strict compliance with the law. Certainly under such circumstances the petition asking for the removal should set forth such jurisdictional facts as are required by the acts of 1832 and 1861 to clothe •the court with the power to remove an executor. Appellant had the right to know that the attempt was being made to remove him in order that he could squarely meet that issue.- As we view the record and the pleadings in this case this issue was not squarely raised and appellant did not have the opportunity of directly meeting it. In this there was error.

A different question is raised by the second appeal. The original decree removing the executor required him to deliver and pay over to the administrator c. t. a. d. b. n. when appointed and qualified, all goods, chattels and property, money, estate or effects, in his hands as executor of the last will and testament of the testatrix. At the time this decree was entered the administrator had not been appointed and no time was definitely fixed to deliver and pay over as required by this order. The securities, papers and other evidences of indebtedness were impounded by order of the court. An appeal was taken from the order of removal and was pending when the attachment proceeding was instituted. In this situation appellant in order to avoid an attachment for contempt was compelled to deliver and pay over to the administrator, who in the meantime had been appointed, all the goods, property, securities and moneys belonging to the estate. From the decree requiring him so to do the second appeal was taken. Appellant contends that the facts of the case did not warrant the exercise of such drastic power and that an injustice was done him in taking out of his hands the entire assets of the estate before he had time to file an account and while his appeal from the order of removal was still pending in the appellate court. In justification of this order appellee points to that portion of the first section of the Act of May 1, 1861, P. L. 680, which gives the court the power to "order and compel sueh executor, administrator, guardian, committee or trustee to deliver over and pay to his successor, all and every the goods, chattels, and property, money, trust or effects, in his hands as aforesaid.” It is argued that the power given by the statute is comprehensive enough to warrant an order to deliver and pay over before there has been an accounting. As a general proposition this view of the powers conferred by the statute may be conceded, but to justify its exercise there must be some impelling necessity. While the statute does confer the power, it is silent as to the time and manner of its exercise. Ordinarily, it is the common and proper practice to first require the filing of an account in order to definitely ascertain the kind, character and amount of the assets, less such proper credits as the accountant should be allowed in connection with his administration of the estate before compelling him to deliver and pay over the unadministered assets to his successor. This doctrine as applied to administrators de bonis non generally is recognized in Bowman’s App., 62 Pa. 166; Sibbs v. Saving Fund Society, 153 Pa. 345, and Wagner’s Est., 227 Pa. 460. This is the orderly and legal method of definitely determining the liability of a deceased executor, or of a removed executor, and of ascertaining what assets have been administered and what remain unadministered. This course should always be followed unless the exigencies of the case demand an immediate delivery of the assets so that the estate may not be jeopardized. Tome’s App., 50 Pa. 285, is an exception to the general rule. Tome was indicted and convicted for embezzling the funds of the estate, and before his removal as executor the court ordered that he give proper security, which he failed to do. This left the estate in jeopardy, and the court very properly ordered him to deliver and pay over all of the assets to his successor. Nothing of this kind appears in the present case. Appellant was not asked to give security which no doubt he could and would have done. He was not charged with embezzlement and the evidence shows that he was ready to render an account of his administration of the estate. Under these circumstances we see no reason why there should be a departure from the recognized practice in such cases. If for any reason the estate was thought to be in jeopardy, or if it were deemed wise to require security as a protection to those interested, this end could have been more easily reached by requiring the executor to give a bond with sufficient sureties conditioned for the faithful discharge of his duties. This was not done and no reason is suggested why this important step was not taken. We, therefore, hold, under the facts of this case, that the order upon the appellant to deliver and pay over all of the assets to his successor before giving him an opportunity to file his account was prematurely made.

The fourth assignment of error relates to the order of the learned court below fixing the amount of the bond in order to make the appeal a supersedeas. The amount of the bond required was $114,000, which under the circumstances appellant contends was unreasonable and excessive. The Act of May 19, 1897, P. L. 67, provides how the appeal from a decree removing a person acting in a fiduciary capacity shall be made a supersedeas. This act provides that if the appellant in such a case deposits in the court below all the assets of the estate which are or should be in his hands and gives bond with sufficient sureties in double the amount of the costs accrued, or likely to accrue, the appeal shall act as a supersedeas. Or, in the event that all of the assets are not deposited, a bond in double the amount of the undeposited assets, shall have the same effect. At the time the amount of the bond was fixed all of the personal assets, except the household goods and wearing apparel of the testatrix, were deposited in or impounded by the court. As to the personal property, except the household goods, this fully met the requirements of the act of 1897. The court, however, included among the assets not deposited the real estate of the testatrix which must have been valued at more than $50,000. The appraised value of the household furniture was $2,973.60. The costs accrued and likely to accrue were fixed at $1,000. The whole amount of undeposited assets, including the real estate, was estimated at $57,000 and the bond was fixed in double that amount. Such an interpretation of the act of 1897 is not warranted by its language. The act was intended to reduce the amount of a bond required to be given under such circumstances, and not to increase the burden of one desiring to make his appeal a supersedeas. To include the value of the real estate in fixing the amount of the undeposited assets does violence to the spirit and purpose of the statute. The income from the real estate might very properly be included, but not the corpus. A bond in the sum of $10,000 would have been ample to secure the undeposited assets, the income from the real estate and the probable costs. We think the amount of the bond was excessive and not warranted under the act of 1897.

• The settlement of this estate has been delayed for several years by reason of this litigation. It should now be settled and distributed as expeditiously as possible so that those entitled to participate in the distribution may receive what was given them under the will. It should be borne in mind that the estate of the testatrix is what we are dealing with. It was hers to do with as she pleased and to dispose of as she wished in any manner not unlawful. She had the legal right to select the objects of her bounty and to give them much or little as she chose. The law is not concerned about what distribution she made of her estate so long as her benefactions are confined to legal channels. The questions of mental capacity and undue influence having been determined in favor of the proponents of the will its validity was established and certainly all parties are interested in an early accounting.

Both' decrees reversed, and the administrator cum tes-tamento annexo de bonis non is ordered and directed to deliver and pay over to appellant as executor all goods, chattels and property, moneys, estate or effects, in its hands belonging to the estate of Nancy W. Kuntz, deceased, upon said executor filing a bond, with sufficient surety or sureties, in an amount adequate to cover the value of the moneys, securities, personal property and income from real estate, that is or may come into his hands as executor' of the last will and testament of said testatrix, which bond is to be approved by the orphans’ court and be conditioned for the faithful discharge of his duties as executor and properly accounting for all the property and assets of the estate. Costs to be paid out of the estate.. •