text:
    Keene’s Estate.

      Wills — Construction—Presumption against intestacy — Intestacy.
    Every intendment is to be made against holding a person to die intestate who sits down to dispose of the residue of his property.
    In arriving at the intention of a testator, courts do not look with favor upon a construction of a will which leads to an intestacy, and especially is this true where, after having made specific bequests and devises covering a large part of the estate, there is a residuary clause evidencing an intention to dispose of every part of it.
    An intestacy is never favored and a construction should not be adopted which leads to such a result- if it can be avoided by a reasonable interpretation of the will.
    Testatrix gave to a “dear niece” the sum of $30,000. The interest to be paid to her only, whether married or single, during her life, and after her death to her children, if any, absolutely; but if she dies without issue the principal to go to two brothers, naming them, the interest only for their uses; but to their children, lawful issue, absolutely. “But if she marries without my consent then this devise shall be null and void, and she shall receive only ten thousand dollars subject to the same investment, etc. . . . The residue of my estate real and personal, I give and bequeath to my dear and affectionate niece, subject to the same conditions as my legacy of thirty thousand dollars, specified in a former part of this instrument, the principal to be invested in ground rent or in the bank stock considered safe, but preferable in bond and mortgage on real estate, the interest to be enjoyed by her during her life, the principal to devolve to her children, lawful issue absolutely; - if she dies unmarried she has power to devise it to whichever of her brothers she will consider most worthy to inherit her bequest and mine, i the interest only to them, to their children, lawful issue, absolutely.” The niece died without issue and without having exercised the power of appointment. Held, that the principal of the residue of the estate went to the children, lawful issue of the two brothers, who took the thirty thousand dollar legacy absolutely. In such a case the word “ conditions” as used in the residuary clause is to be construed to mean the same provisions under which the niece took the legacy of $30,000.
    The final determination of the rights of the ultimate residuary legatees was not decided by the Supreme Court in Keene’s Appeal, 60 Pa. 504; Austin Keene’s Appeal, 64 Pa. 268, or in Brock’s Appeal, 1 Penny-packer, 36, and is therefore not res adjudicata.
    Possible beneficiaries in the event of a discretionary testamentary power being exercised in their favor can claim no rights as cestuis. que trustent before the exercise of the power.
    Argued Jan. 13, 1908.
    Appeal, No. 270, Jan. T., 1907, by Eli Kirk Price, Executor of Ellen Mitchell, deceased, and the Keene Home, residuary legatee under her will, from decree of O. C. Phila. Co., Jan. T., 1882, No. 304, dismissing exceptions to adjudication in Estate of Sarah Lukens Keene, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exception to adjudication.
    From the adjudication it appeared that the testatrix died May 11, 1866, leaving a will dated November 18, 1843, duly probated, whereby, after making certain specific bequests to her niece, Ellen Keene (afterwards the wife of Dr. S. B. Wylie Mitchell), she provided as follows: “ I also bequeath to this dear niece (the only surviving daughter of my brother, Jesse Lukens Keene, deceased), whom I have educated, the sum of thirty thousand dollars, to be invested in ground rents, or bonds and mortgages on real estate, the interest to be paid to her only, or her power of attorney, whether married or single, during her life, and after her death to her children, if any, absolutely ; but if she dies without issue, the principal to go to her brothers, Henry and James, namely, the aforesaid investment of thirty thousand dollars in ground rents and bonds and mortgage, the interest only for their uses; but to their children, lawful issue, absolutely. But if she marries without my consent, or after my death, to any person whom I did not approve during my life, then this devise shall be null and void, and she shall only receive ten thousand dollars, subject to the same investment of ground rents or bond and mortgage, the interest only to be paid to her alone, or her power of attorney, and after her death to her children absolutely. I have made this clause, not from any fear of its probable necessity, but from prudence and precaution. If she dies without lawful issue, this sum to go to her brothers in the same manner as specified above in the larger sum.”
    The residuary clause of the will is as follows : “ The residue of my estate, real and personal, I give and bequeath to my dear and affectionate niece, Ellen Keene, subject to the same conditions as my legacy of thirty thousand dollars specified in a former part of this instrument, the principal to be invested in ground rents or in the bank stock considered safe, but preferable in bond and mortgage on real estate, the interest to be enjoyed by her during her life, the principal to devolve to her children, lawful issue, absolutely; if she dies unmarried, she has power to devise it, to whichever of her brothers she will consider most worthy to inherit her bequest and mine, the interest only to them, to their children, lawful issue, absolutely.”
    The testatrix was survived by her niece, the said Ellen Keene, who had married Dr. Mitchell in her aunt’s lifetime and with her approval, two nephews, Henry Edgar Keene and Lenox K. Keene, brothers of Mrs. Mitchell, and six children of another nephew, James Bryden Keene, a deceased brother of Mrs. Mitchell.
    The two surviving brothers died in the lifetime of Mrs. Mitchell, Henry without issue, Lenox leaving two children, both of whom also died in Mrs. Mitchell’s lifetime, one leaving issue who survived her.
    All the children of her brother James also died in her lifetime, but some left issue still living.
    Mrs. Mitchell survived her husband and died without issue February 12, 1905, and without being able to exercise her power of appointment of the residue of her aunt’s estate, which limited her selection to her brothers and their children, all of whom had died in her lifetime, but leaving a will, upon which letters testamentary were, granted to Eli Kirk Price, the executor therein named, and whereby, after making sundry specific bequests,'all of which have been paid, she left the residue of her estate to the Keene Home, a charity created by another'pro vision- of her aunt Sarah Lukens Keene’s will.
    Upon Mrs.' Mitchell’s death her executor filed an account of her administration of the residue of Sarah Lukens Keene’s estate,’ of'which she had “enjoyed” the “interest” “during her- life,” as provided in her aunt’s will, and at the audit claimed on behalf of the Keene Home, Mrs. Mitchell’s residuary legatee, the entire balance for distribution, or, if it should be held that an intestacy of the principal of the residue under Sarah Lukens Keene’s will had occurred,' a one-quarter interest in the balance as the legal representative of one of the four shares which would have passed to her next of kin at the death of the testatrix.
    The auditing judge rejected both claims and awarded the entire net balance for distribution to the issue of James 33ry-den Keene’s children or their legal representatives. Exceptions to the adjudication were dismissed and the adjudication was confirmed absolutely by the court in banc.

      Error assigned was in dismissing exceptions to adjudication.

      Williairí A. Glasgow, Jr., for appellants.
    It will be observed that the “ conditions ” are attached to the gift to the life tenant only and qualify her enjoyment of it. They are not annexed in any way to the property upon its passing to another at the termination of her life estate, so that there appears no adequate reason for converting words of “ condition ” into words of “ limitation ” affecting a subsequent estate, contrary to the well-established rules of interpretation and of property.
    With this phrase out of the way as a limitation, the residuary clause contains no express gift of the remainder to anyone upon the life tenant’s death without issue, and without the possibility of exercising her limited power of appointment by will in favor of her brothers and their children, all of whom died in her lifetime.
    The only gift is to the niece for life, “ the principal to devolve to her children, lawful issue, absolutely.” Then follows the’ superadded power : “ If she dies unmarried, she has power to devise it, to whichever of her brothers she will • consider most worthy to inherit her bequest and mine, the interest only to them, to their children, lawful issue, absolutely.”. These words constitute a mere power, which events rendered impossible of exercise, and do not of themselves vest the estate in anyone: Brook v. Brook, 3 Sm. & Giffard’s. Rep. 280; Hawkins on Wills, *62; Marlborough v. Godolphin, 2 Vesey, Sr., 61.
    The power in the niece of disposing of the uncertain event, ^ if she dies unmarried,” is not an absolute or imperative direction to make an appointment: Hambright’s Appeal, 2 Grant, 320 : Second Reformed Presbyterian Church v; Disbrow, 52 Pa. 219; Brook v. Brook, 3 Sm. & Giffard’s Rep. 280.
    It will be remembered that the first taker in a will is presumed in law to be the favorite of the testator : McFarland’s Appeal, 37 Pa. 300 ; Rewalt v. Ulrich, 23. Pa. 388.
    In such cases the gift is to be construed so as to make it as effectual to him or her as possible: Manderson v. Lukens, 23 Pa. 31; Wilson et al. v. McKeehan, 53 Pa. 79 ; McClure’s Appeal; 72 Pa. 414; Fitzwater’s Appeal, 94 Pa. 141.
    By the use of a word apt for inheritance or legal transmission the testatrix expressed her intent that the children should take through the ancestor by descent and not by purchase-: Clark v. Baker, 3 S. & R. 470 ; Nunez v. Fisher, 15 S. & R. 145 ; Potts’s Appeal, 30 Pa. 168 ; Potts v. Kline, 174 Pa. 513 ; Shapley v. Diehl, 203 Pa. 566 ; Simpson v. Reed, 205 Pa. 53.
    Courts are never disposed to put such a construction upon a will as would be likely to lead to an intestacy : See note 3 to Maberly v. Strode, 3 Vesey, 456 ; Baldwin v. Rawding, 2 B. & Ald. 441; Brown v. Higgs, 4 Vesey, 708 ; Hall v. Dickinson, 1 Grant, 240.

      George L. .Crawford, of Crawford <& loughlin, for appellees.
    Every intendment is to be made against holding a per- I son to die intestate, wTho sits down to dispose of the residue of 1 her property, or where the words of the testatrix will carry ' the whole: Smith’s Ex. Int., sec. 341; Maberly v. Strode, 3 Vesey, 456n ; Brown v. Higgs, 4 Vesey, 708 ; Baldwin v. Rawling, 2 B. & Ald. 441; Hall v. Dickinson, 1 Grant, 240 ; Stehman v. Stehman, 1 Watts, 466 ; Axford’s Est., 2 W. N. C. 663, and other cases, especially where the residue is of the testatrix estate, as here.
    May 11, 1908 :
   Opinion by

Mr. Justice Elkin,

In 1843, Sarah Lukens Keene, an intelligent and discriminating person, being possessed of an ample fortune, made a will, wrote it herself, disposing of her estate, consisting of real and personal property. She died in 1866, and her- will was in due time admitted to probate. It has been the cause of much litigation as will appear by reference to our own cases, which show that in one form and another questions involving the real or supposed rights of persons directly or contingently interested in its provisions have arisen in three different proceedings. It was suggested at the argument that the question now raised had already been decided by this court in the former cases, and is therefore res adjudicata. We have concluded, however, after a careful examination of our former cases, that the construction of the residuary clause as it affects the ultimate interests of legatees was not before the court for consideration, and nothing decided in those cases is conclusive of the rights of the parties here. It is true that some of the views expressed by the learned justices who wrote the opinions in the former cases relate to the construction of the residuary clause, but nothing therein decided was intended to be a final determination of the rights of ultimate residuary legatees. That the question now raised is a close one, not free from difficulty, and that the clauses of the will under consideration are susceptible of several different interpretations, radically differing in results, is made apparent by a review of the decisions of this court, the opinions of the courts below, and the argument of learned counsel in dealing with this subject. -In Keene’s Appeal, 60 Pa. 504, the only question decided was that the petitioner, who claimed to have a possible or contingent interest under the will, had no such present interest, immediate or remote, as to give him standing to require an accounting and settlement of the estate. This case was decided in 1869, at which time Mr. Justice Agnew, forecasting the difficult questions that might subsequently arise, but nothing in that case demanding their decision then, in delivering the opinion of the court, said : It is not necessary that we should determine the rather difficult question what ultimate interest in the estate of Sarah L. Keene, the appellant, might take under the will.”

In Austin Keene’s Appeal, 64 Pa. 268, the petitioner taking advantage of the act of 1869, passed after the opinion in the former case had been handed down, and evidently intended to give relief from the consequences of that decision, filed his petition, as an alleged owner of a contingent interest in the personal property of the testatrix, asking for a citation requiring the executrix to file an account. The court below dismissed the petition and refused the citation. On appeal this court reversed the decree of the'court below and in doing so pointed out that under the act of 1869, which in terms gave the owner of any contingent interest in the personal property of a decedent the right to require an accounting, the petitioner had a standing to ask for a citation for this purpose. The only question before the court in that case was whether under any of the provisions of the will, the petitioner had such a possible contingent interest as to give him standing under the act to require an accounting. It was decided that he had, and in arriving at that conclusion the court reviewed the situation as it then appeared, freely discussing several possible contingencies that might arise, but did not undertake to finally determine the ultimate interests of the residuary legatees. Mr. Justice Sharswood, who delivered the opinion of the court in that case, and whose views on any question of law are always entitled to most respectful consideration, did discuss many contingencies that might arise in the final distribution of the estate, and suggested that if Ellen Keene Mitchell should die without issue or without exercising the power of appointment, which she did, there would be an intestacy as to the residuum which would go to the next of kin. It is clear, however, that this was intended only as an expression of opinion on the possible and probable interpretations of the residuary clause when that question should arise and was not intended to be a final conclusive determination of the rights of the parties either presently or remotely interested.

In Brock’s Appeal, 1 Pennypacker, 36, a different question arose, although incidentally the interpretation of the will was involved. Certain real estate of which Sarah Lukens Keene, the testatrix, died seized, was situate in Blair county, and the surviving executrix as testamentary trustee under a decree of of the orphans’ court of-that county sold the same under the act of 1853. Upon a distribution of the proceeds arising from that sale several'claimants appeared, among others, Brock, who claimed a right to participate in the distribution. His claim arose in the following manner : Henry Edgar Keene, a nephew of the testatrix, and brother of Ellen Keene Mitchell, died in 1875, never having had any children, and no doubt, acting on the theory that inasmuch as these lands' had not. been specifically devised in the will of his aunt, there was as to that particular real-estate an intestacy, he therefore by will devised his interest therein as an absolute estate to his wife, who subsequently conveyed the same in fee to Brock.Counsel for Brock contended that the testatrix died intestate as to these lands, and that his predecessor in title, Henry-Edgar Keene, in the distribution inherited-as next of kin a one-fourth interest in them. The learned- court below, President Judge Dean presiding, held that there was no intestacy, disallowed the claim of Brock and awarded the fund to the children and issue of Lenox K. Keene and James Bryden Keene. Why the fund was awarded to the children and issue of the two brothers named does not appear in the report of the case and we have, no means of knowing why- these particular children were awarded the fund. The case turned on the right of Brock to participate and not on questions arising between the Keene heirs. On appeal, this court, affirming the court below, said : “ The language of the will limiting the interest of Henry E.. Keene to a life estate is sufficiently clear. The fund in contention is disposed of in the residuary clause. Henry’s interest being thus restricted, he had none in the residuary estate to devise to his wife and she none to assign to appellant.” As the situation then stood it was determined that there was no intestacy as to the real property of the testatrix, certainly none arising from failure to specifically devise the real estate in question, and that the entire estate, not specifically bequeathed or devised, passed into the residuum to be disposed of under the residuary clause. While this case is authority for the proposition that the estate of the testatrix was disposed of by her will either in specific bequests and devises, or by passing into the residuum, and is strongly persuasive that an intestacy could not occur under the provisions of the residuary clause, yet that exact question was not before the court, and was not, therefore, finally decided. ¥e are now confronted with the precise difficult question ” suggested in Keene’s Appeal, in 1869, discussed but not decided in Austin Keene’s Appeal in 1870, and considered but not finally determined in Brock’s Appeal in 1881. What did the testatrix mean when she said in the residuary clause of her will: “ The residue of my estate, real and personal, I give and bequeath to my dear and affectionate niece, Ellen Keene, subject to the same conditions as my legacy of thirty thousand dollars, specified in a former part of this instrument, the principal to be invested in ground rent or in the bank stock considered safe, but preferable in bond and mortgage on real estate, the interest to be enjoyed by her during her life, the principal to devolve to her children, lawful issue absolutely ; if she dies unmarried she has power to devise it to whichever of her brothers she will consider most worthy to inherit her bequest and mine, the interest only to them, to their children, lawful issue, absolutely”? While the question involved here grows out of a distribution of the personal property in the residue of the estate and depends largely upon the construction of the residuary clause, yet there are other clauses which must be taken into consideration in arriving at a proper construction of the residuary clause.

Four different constructions are suggested as possible under these clauses of the will: First, that an absolute estate vested in the favorite niece, Ellen Keene Mitchell; second, that Ellen Keene Mitchell took a life estate with remainder to her children, if any, and on her death without issue, and without exercising her power of appointment, to the children of all three of her brothers, ITenry, James and Lenox, appointees of the power; third, on the death of Ellen Keene Mitchell, without issue and without having been able to exercise the power of appointment, there was an intestacy as to the remainder; and fourth, as giving Ellen Keene Mitchell a life estate in the residue with remainder to her children, if any, absolutely, and on her death without issue, and without having exercised the power of appointment, or being unable to do so on account of marriage, to the children of Henry Keene and James Keene, two brothers of Ellen Keene Mitchell and the legatees named in the prior clause of the will, to which reference was made by testatrix in the residuary clause. The first suggestion is not tenable. In terms the legacy of $30,000 and the bequest of the residuary estate is given to Ellen Keene Mitchell for life, and it is expressly provided that only the interest shall be paid to her, no matter whether married or single, during her life, and at her death it was to go to her children absolutely. The reasons suggested by Mr. Justice Sharswood in Austin Keene’s Appeal, amount to a demonstration that under our authorities Ellen Keene Mitchell only took a life estate, and to this can be very pertinently added what was said by Judge Penrose of the orphans’ court who delivered the opinion of the court in banc in the present case, wherein it is stated: With regard to the suggestion that the niece, under the gift to her of a life estate and at her death to her lawful children (“ children, lawful issue ”) took the entire estate, but little need be said, for, apart from the fact that the Supreme Court has already decided to the contrary, as her life estate was equitable and that to her children legal, the two would not coalesce even if the remainder had been to heirs or issue (Boyd’s Estate, 199 Pa. 481); and if both had been legal or both equitable, the words “ children, lawful issue, ” are words of purchase, which are not to be changed into words of limitation by the use of the word devolve ” which precedes them, a word very different from the word “ descend, ” which implies an estate of inheritance in the parent.

We find no authority to support the second proposition. This position assumes that the power of appointment in favor of the brothers and their children amounted to a trust in favor of the possible appointees, ’but certainly this cannot be the law, for, the power was only to be exercised in the event of Ellen Keene Mitchell dying unmarriéd and was not an absolute imperative direction to make an appointment, and even if she remained unmarried, under the power she could designate “ whichever of her brothers she will consider most worthy to inherit her bequest and mine.” It would seem necessarily to follow that possible beneficiaries in the event of a discretionary power being exercised in their favor can claim no rights as cestuis que trustent before the exercise of the power. In the present case the power was never exercised and no rights vested in possible contingent beneficiaries under an unexercised discretionary power of appointment. ^

As to the third proposition it has been well said that every intendment is to be made against holding a person to die intestate who sits down to dispose of the residue of her property.11 In arriving at the intention of a testator, courts do not look with favor upon a construction of a will which leads to an intestacy, and especially is this true where, after having made specific bequests and devises covering a large part of the estate there is a residuary clause evidencing an intention to dispose of every part of it. An intestacy is never favored and a construction should not be adopted which leads to such a result if it can be avoided by a reasonable interpretation of the will. In the present case we think the testatrix did not intend to die intestate as to any part of her estate. She seems to have thought of and arranged for every possible contingency that might arise. Her intent is clearly manifested in the bequest of $30,000 to her niece, and a similar disposition of the residuum is made apparent without doing violence to any of the words used. As to the $30,000 legacy she provides that the interest shall be paid to her niece during life and after her death it was to go to her children, if any, absolutely. Her first concern was for the comfort of her favorite niece which she undertook to provide for by giving her the income of $30,000. At the time of the execution of the will the niece was unmarried, and, the aunt anticipating her marriage, and desiring to provide for her children, if any, gave them the absolute estate upon the death of the niece. She did not stop here, but foreseeing that her niece might die without issue, the testatrix provided for that contingency by giving the income to her brothers, Henry and James, during their lives and the principal was to go absolutely to their children. Again, in order to take care of another contingency, the testatrix provided that the niece if she married without the consent of the aunt, should only have the income of $10,000 and in that event the disposition of the $10,000 was to be the same as of the larger sum. Here, then, is presented a case in which an intelligent testatrix by her will has provided for almost every possible contingency that might subsequently happen, every part of which shows an intent to dispose of the $30,000 absolutely. When this testatrix comes to dispose of her residuary estate, keeping in mind her favorite niece for whom she manifests great affection, and still desiring to more bountifully care for her, she provides that the residue of her estate, real and personal, shall be enjoyed by the niece “ subject to the same conditions as my legacy of $30,000 specified in a former part of this instrument.” It seems perfectly clear that the testatrix in providing for her niece had in mind not only the legacy of $30,000 but the residuary estate as well, and that it was intended the residuary estate should be held and enjoyed by the niece subject to what she terms the same “ conditions ” as those under which she took the former legacy. We concur with the learned court below in the view that the word “ conditions” in the residuary clause was not a technical term, but was used in its popular sense as signifying provisions, or in the same manner. Such a -construction gives effect to every part of the will, avoids an intestacy, does no violence to the language used and in our opinion carries out the manifest intention of the testatrix. It must not be overlooked, as suggested by the learned court below, that the word “ conditions ” is used in the plural, not in the singular, and this is significant as an answer to the contention of the learned counsel for appellant wherein it is said the only condition upon which the niece took the $30,000 legacy was that she should not marry without the consent of the testatrix. When the testatrix used the word “conditions” she meant more than one condition and, in our opinion, clearly indicated thereby an intention to couple the residuary bequest with all the “ conditions, ” that is to say, all the provisions contained in the former clause of the will to which it referred.

As to the fourth proposition we concur in the conclusion reached by the auditing judge which was affirmed by the court in banc, and that is that Ellen Keene Mitchell took a life interest in the residuary estate, subject to the same “ conditions ” which we construe to mean the same provisions as she took the legacy of $30,000, and the niece having died without issue and without having exercised the power of appointment, the principal went to the children, lawful issue of her brothers, Henry and James, or to the issue of the survivor of them or their legal representatives absolutely.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Stewart,

license: Public Domain

text:
    Krauczunas, Appellant, v. Hoban.

      Trusts and trustees — Adverse holding — Executed use — Religious congregation — Title to property.

    It results from the act giving to religious societies legal capacity to hold real estate, that a conveyance of real estate to a trustee for the use of a particular congregation, constitutes an executed legal estate in the congregation itself, to be used by it for such purposes as the law allows.
    In such a case the congregation may at a subsequent duly convened meeting direct the trustee, to whom the property had been conveyed, to execute a deed of conveyance to other persons named as trustees, and the trustee cannot set up as a ground for refusing to execute such a deed that he is in fact the bishop of the Roman Catholic Church, of which the congregation in question is a part, and that under the rules, discipline and usages of such church he holds the title to the property in question.
    A trustee while occupying a place of trust and confidence cannot be heard to set up an adverse holding.
    Ecclesiastical rules and regulations, except as they are aided by légal conveyance, are ineffectual to divest any owner of his property.
    The Act of April 26, 1855, P. L. 328, confirms in unequivocal terms to every religious society, incorporated or unincorporated, the absolute ownership of its property subject only to the condition that it shall not divert it from the uses and purposes and trusts to which it may have been lawfully dedicated.
    Argued Feb. 24, 1908.
    Appeal, No. 368, Jan. T., 1907, by plaintiffs, from decree of C. P. Lackawanna Co., Jan. T., 1907, No. 2, dismissing bill in equity in case of Andrew Krauczunas et al. v. Michael J. Hoban.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Bill in equity to compel a conveyance of real estate.
    Edwards, P. J., found the facts to be as follows :
    1. The plaintiffs, ten in number, bring suit for themselves and their associates, who constitute an unincorporated religious association, named the St. Joseph’s Lithuanian Catholic Congregation. The defendant is the Roman Catholic Bishop of the Scranton diocese.
    2. The said congregation is composed mainly of Lithuanians and was organized as- a church in the year 1892. It was organized as a Roman Catholic church, and is under the ecclesiastical jurisdiction of the defendant as bishop of the Scranton diocese. It has been since its organization a Roman Catholic church.
    3. In 1893 the said congregation purchased, under contract, a lot of land in the city of Scranton, for the purpose of erecting thereon a church building. The title to this land was taken in'the names of Yincent Blazys, W. Yususe, Mike Bernotas, George Mitchell and Joseph Tamalinnas. These persons were acting for the congregation, two of them being officers thereof. Afterwards, in 1896, the deed for the property was made to the same persons, naming them as “ trustees,” but not giving the name of the congregation for which they were trustees.
    4. Soon after the foregoing deed was obtained, an attempt was made to place the title to the property in the name of the then bishop of the Scranton diocese, Bishop O’Hara, the predecessor of the defendant in said office. On March 13, 1896, a deed was made to the “ Providence Lithuanian Catholic Congregation.” This deed was signed by the five men named in the foregoing finding. Although named as “ trustees ” in the deed they signed as individuals. In September, 1896, the “ Providence Lithuanian Catholic Congregation ” deeded the property to Bishop O’Hara, in trust for the congregation. This deed is signed by two persons, named as “ president ” and “ secretary,” without designation of the name of the congregation. It is apparent that the purpose of these conveyances was to take the title to the church property out of the individuals named -in the third finding, and to place it in the bishop of the diocese in trust for the congregation. This attempted transfer was a somewhat crude effort, judged by the technical rules governing conveyancing. The first deed, January 17, 1896, wás to the five persons named, as “ trustees ” merely ; the second deed, March 13, 1896, although purporting to be made by “ trustees,” is signed by the grantors as individuals and tbe name of the congregation is incorrectly, given ; the third deed, September 12, 1896, is improperly executed, and this latter deed does not show, a resolution of the congregation authorizing the transfer to the bishop.
    5. Between the years 1889 and 1901 the church building was erected. The congregation went into debt, and in 1901 it became necessary to secure a loan of $10,000. Application for the loan was made to an attorney, and, while investigating the title, he discovered the defects in the deed above referred to. The consequence was that a meeting of the congregation was called for February 13,1901. It is as to this meeting that we find the first substantial dispute in the testimony, the plaintiffs claiming that there was present only a small minority of the congregation, and that the action taken at the meeting was therefore void. As to the number present at this meeting, and as to what transpired therein, a large number of witnesses have testified on each side. Except as to the number present at the meeting the testimony of plaintiffs’ witnesses is vague and very unsatisfactory. The only clear and definite testimony comes from defendant’s witnesses. On one side it is claimed that the number present at the meeting was from 100 to 200 ; on the other side the number is given at from 400 to 100. We are of the opinion that the defendant’s witnesses are more nearly correct than the other witnesses, and we find as a fact that the congregation was represented at said meeting by a majority of the members. The matter discussed was the transfer of the title to the church property to Bishop Hoban, the successor of Bishop O’Hara. It was explained that this was the only way by which the loan could be secured. A resolution was adopted, with substantial unanimity, authorizing and directing the transfer of the title to the church property to Bishop Ho-ban, the defendant in this case, in trust for the St. Joseph’s Lithuanian Catholic Congregation.
    6. The action taken at said meeting contemplated the formal transfer of the title to Bishop Hoban from the old trustees, the five men named in our third finding of facts, thus ignoring the attempted transfer from them to the congregation and from the congregation to Bishop O’Hara, as shown by Ahe deeds already referred to. The attorney considered these deeds so imperfect as to cast a serious doubt on the validity of the transfers. lie therefore advised the action as taken by the meeting of the congregation. Subsequently, the old trustees refused to make the transfer, and then another meeting was called and held, the result of which was the authorization of legal proceedings to compel the five old trustees to convey the church property to Bishop Iioban, in accordance with the resolution adopted at the previous meeting.

      1. The next step was the filing of a bill in equity, in which George Smith and others for themselves and associates, constituting the St. Joseph’s Lithuanian Catholic Congregation, were plaintiffs, and Yincent Blazys et al., the five old trustees, were defendants. The purpose of the bill was to have a trust declared in the defendants as to the church property for the benefit of the said congregation, and to secure a conveyance of the property to Bishop Hoban. The bill was taken pro confesso and a final decree was entered (1) declaring a trust in the defendants as to the property aforesaid; (2) ordering the defendants to execute a declaration of trust within ten •days; and (3) directing the defendants to convey the church property to Bishop Hoban in trust for the said congregation. Whatever criticism might be made as to the regularity of these equity proceedings they finally resulted in a deed from the defendants — the old trustees, as trustees, to the Right Rev. Michael John Hoban, trustee for the St. Joseph Lithuanian Catholic Congregation. Therefore, in August, 1901, the title to the church property was securely vested in Bishop Hoban in trust for the congregation.
    8. In the year 1906 it appears from the evidence that considerable dissatisfaction existed among the members of St. Joseph’s congregation. They were not satisfied with their priest, and many of them claim that the congregation had no knowledge that the title to their property was in Bishop Hoban, as trustee. At first it seems the objections were more on account of the priest than because of the bishop’s connection with the property ; but whatever may have been the cause of the irritation, the outcome was that on July 20, 1906, a meeting of the congregation -was held to take action relative to the transfer of the church property from Bishop Hoban to other trustees selected by the congregation. This meeting was called by means of notices in newspapers and by printed' slips or bills handed to the members of the congregation. There is no evidence as to the manner in which meetings of the congregation to transact its business was usually called. The meeting of February 13, 1901, was called by the priest from the altar; but we were not referred to any rule, by-law or custom governing the calling of meetings. We, therefore, cannot say that the meeting of July 20, 1906, was irregularly called. There is some question as to the number present at this meeting; but we have no difficulty in finding as a fact, and we do so find, that the resolution adopted at said meeting was passed “ by a vote of more than a majority of the adult members of the congregation.” The resolution provided that Andrew Krauczunas and others, ten in number, “ the present trustees,” be chosen as trustees “ to hold the title to all the property belonging to this society.” These trustees are directed “ to take such action, in law, equity, or otherwise, as may be necessary to secure the conveyance to them as trustees for said society of the legal title to any and all property now held by any other person or persons as trustee or trustees for this society.” The resolution also provides for the incorporation of the society and the subsequent conveyance of the property to the incorporated societ}!-. Another meeting was held in October, 1906, in which the said trustees, the plaintiffs named in the present case, were instructed to bring legal proceedings to secure the conveyance of the church property from the defendant, he having refused to make the transfer when requested to do so.
    9. The canons of the Noman Catholic church provide and require that the title to the property of a Noman Catholic congregation, which is under the jurisdiction of the Noman Catholic bishop of the diocese in which the congregation has its place of worship, must be in the “ ordinary,” or, in the present case, in the bishop of the diocese.
    The above specific fin dings, cover all the material facts established by the evidence in this case. Briefly recapitulated the facts are:
    (a) The St. Joseph’s Congregation is a Noman Catholic church, and is under the jurisdiction of the defendant as bishop of Scranton.

      (b) By action of the congregation and by legal proceedings and deed, the title to the church property was transferred in 1901 to Bishop Hoban in trust for the congregation.
    (c) A large majority of the congregation in 1906 passed a resolution to secure the transfer of the title from Bishop Ho-ban to ten trustees, plaintiffs named in the present case.
    (d) The bishop refused to make the transfer, claiming the right, under the laws of the Roman Catholic church, to hold the title to said property in trust for the congregation.
    The court entered a decree dismissing the bill.

      Error assigned amongst others was decree dismissing the bih.

      A. A. Vosburg, with him W. J. Sand, for appellants.
    The undisputed evidence showing that the property in question was purchased by the congregation through its own chosen trustees and the title taken in them, and that the only title acquired by the defendant was through the alleged action and choice of the congregation as appears by the terms of the deed to him, and it being undisputed that “ a large majority ” of the congregation have regularly chosen the plaintiffs as trustees to hold the title to its property, the plaintiffs were entitled to the relief prayed for : Brown v. Griffin, 14 W. N. C. 358 ; St. Mary’s Church, 7 S. & R. 517.

      T. P. Soban, with him Robert J. Murray, for appellee.—
    In Pennsylvania a bishop may hold title to real and personal property as trustee for his congregation or diocese under the rules and disciplinary regulations of the Catholic church.
    Where the laws of a church require the title to church property to be vested in the bishop of the diocese, the courts of Pennsylvania• have uniformly recognized and enforced such laws : See Dochkus v. Lithuanian Beneficial Society, 206 Pa. 25 ; Tuigg v. Treacy, 104 Pa. 493 ; Est. of Rt. Rev. M. Domenec, 28 Pitts. L. J. 229 ; Donaldson’s Estate, 11 Pa. C. O. Rep. 311; McGinnis v. Watson, 41 Pa. 9 ; Roshi’s Appeal, 69 Pa. 462; Krecker v. Shirey, 163 Pa. 534; Schlichter v. Iveiter, 156 Pa. 119; Greek Catholic Church v. Orthodox Greek Church, 195 Pa. 425.

      May 11, 1908 :
   Opinion by

Mr. Justice Stewart,

The findings of fact by the court below are entirely adequate to an intelligent understanding of the case, and we see no reason to question the correctness of any of them. The plaintiffs and those associated with them, and whom they here represent, constitute the St. Joseph’s Lithuanian Catholic Congregation of the city of Scranton, an unincorporated religious association organized in 1892, and which is under the ecclesiastical jurisdiction of the defendant as Bishop of the Scranton diocese (finding No. 1). In 1893 the congregation contracted for the purchase of a lot of ground in the city of Scranton for the purpose of erecting thereon a church building. In 1896, the purchase having been completed, the title to the lot was taken in the names of certain members of the association simply as trustees, without any designation or description of the beneficiaries. In regard to the character of their holding there is no dispute. Several ineffectual attempts —ineffectual because of defective conveyances, and apparent want of authority in the grantors — were shortly thereafter made to place the title to the property in the then presiding bishop of the diocese as trustee. The result of these efforts, through diverse outstanding questionable conveyances, was a clouded and disputed title, which embarrassed the congregation when in 1901, a large debt having been incurred in the building of the church, it became necessary to negotiate a loan on the security of the improved lot, to the amount of $10,000. The attorney representing the congregation reported that the condition of the title prevented the securing of the loan, and advised that a deed be obtained from the original trustees, ignoring the subsequent attempted conveyance to the bishop of the diocese, to someone in trust for the congregation. Thereupon at a called meeting of the congregation, February 13, 1901, at which there were present a majority of the members of the congregation, a resolution was adopted with substantial unanimity, authorizing and directing the transfer of the title to the property to the defendant in this case, for the St. Joseph’s Lithuanian Catholic Congregation. The court finds that at this meeting the matter discussed was the transfer of the title to the defendant, and that it was there explained that this was the only way in which the contemplated loan could be secured. The original trustees declining to transfer the title as directed by the resolution, proceedings were begun by bill against them to have a trust declared as to the church property and compel a conveyance from them to the defendant. A decree followed, pro confesso, and'this was followed by a regular conveyance from the original grantees to “ The Right Reverend Michael Hoban, trustee of the St. Joseph Lithuanian Catholic Congregation of the city of Scranton,” etc., in accordance with the decree. So matters stood, with much discontent in the congregation, however, arising from several causes, until July 20, 1906, a meeting of the congregation ivas held at which a majority of the adult members were present, to take action relative to the transfer of the title from the defendant to other trustees to be selected by the congregation. The court declined to find that this meeting was irregularly called. It had been called by a priest from the altar, by means of notices in newspapers, and by printed slips or bills handed to the members. There being no evidence as to any other or different requirements for the calling 'of the congregational meeting to transact business, it may very safely be assumed that all essentials were complied with, and that the meeting was regularly called for the purpose indicated. Its- regularity is not questioned. At this meeting, the plaintiffs in this case below, ten in number, were chosen trustees “ to hold the title to all the property belonging to this society,” and they were directed by resolution “ to take such action, in law, equity or otherwise, as may be necessary to secure the conveyance to them as trustees for said society of the legal title to any and all property now held by any other person or persons as trustee or trustees for the society.” The defendant having declined to convey to the trustees named, at a subsequent meeting held in October following, the plaintiffs were directed to begin legal proceedings to compel a conveyance. In accordance with this resolution the present bill was filed. The answer filed controverts many of the statements contained in the bill, but we take the facts to be as found by the court; their correctness is not challenged by any exceptions on the part of the defendant. While the answer distinctly avers that the defendant became invested with the legal title to the property through the conveyance from the former trustees, made pursuant to the decree of the court based on the action of the congregation at the meeting held February 13, 1901, it is made apparent by what is set out in other parts of the answer, as well as by the conclusions of the court in response to points „ submitted on behalf of the defendant, that resistance to the plaintiffs’ demands is based on matters wholly distinct from anything expressed in the conveyance, or which could result from such conveyance between ordinary parties where ecclesiastical considerations were not involved. Before referring to these it may be as well to determine just what was the legal effect of this conveyance to the defendant, as trustee, judged by the proceedings which led up to it, and by what is expressed in terms. That the congregation was acting within the scope of its powers, in directing the conveyance, cannot be questioned ; certainly it will nof be by the defendant who holds the title derived thereunder, and makes no disclaimer. The property conveyed was the property of the congregation. While the legal title was in the former trustees, the entire beneficial interest, equivalent in equity to a corresponding legal estate, Avas in the congregation. The latter’s dominion over it extended even to the right of alienation under proper conditions, not qualified by any right in the trustees. Speaking of a conveyance similar in all respects to that Avhich vested the title here in the original trustees, this court said in Brendle et al. v. The German Reformed Congregation et al., 33 Pa. 415, “Now, it is very plain, that hereby a complete fee-simple title in regular form passed from Wistar to the trustees, and that an equal title, in the form usually adopted, ” (a simple declaration by the trustees of their trust), “for conveying land to congregations under the act of 1731, passed from the trustees to the congregation. That act gave to religious societies legal capacity to hold, and therefore the conveyance to their trustees constituted an executed legal estate in the congregation itself. The use of the medium of trustees Avas mere matter of form. . . . Such trustees seldom, if ever, convey to successors; but title in their name is treated as the title of the congregation, to be used by the congregation at their discretion, for such purposes as the law allows.” A trust so limited is as dry and passive as any that can be conceived. It gives to the trustee neither interest in the estate nor power to control it or direct its management in any way ; it creates no duty for the' trustee to perform and leaves nothing to his discretion ; he is simply the passive, silent depository of the legal title and nothing more. This was the situation when the title to this property vested in defendant’s predecessors, the former trustees. In what respect was it changed by the transfer of the title to the defendant? Did the congregational meeting of July 20, 1906, which ordered such transfer, direct that the new trustees should be invested with other or greater interest in the property, or power over it, than the former trustees had ? Nothing of the kind is suggested ; but on the contrary, it conclusively appears from the resolutions themselves and from the findings of the court, that the sole purpose in ordering the transfer was to clear the legal title of doubts, and matters which had interfered with the negotiation of the loan for congregational purposes, and that nothing beyond was contemplated. The resolution adopted at the meeting was to the effect that the former trustees be requested to make and execute a declaration of trust that they had no title or interest of their own in the property, and that they execute and deliver a deed for the premises to Bishop 1V1. J. Hoban, as trustee for our said church, which said deed shall be made in proper form so as to convey the interest which they hold in said church as trustees for the said St. Joseph’s Lithuanian Catholic Congregation.” There can be but one conclusion with respect to the matter we are now considering — the defendant is simply a depository of the legal title to the property; he holds just as his predecessors in title did, without interest and without power; the entire beneficial interest is in the congregation to be used by it at its discretion, for such purposes as the law allows. If the congregation in 1901 had the power to change the trustees of its title, as unquestionably it had, why had it not the same power in 1906? No reason can be suggested why it should be held to have exhausted its power with the first change. It is only reasonable that the right to exercise such power when it sees fit should abide with the congregation as the owner of the property. Any other result would be inconsistent with the full ownership with which it is invested. No one without interest can be heard to complain of such exercise, and here the only interested party is the congregation. Without more in the case than has so far appeared, the right unquestionably rests with the plaintiffs, and they would be entitled to a decree in their favor.

We turn now to the actual defense set up. Without disclaiming the title to the property conveyed to him by the former trustees, in accordance with the action taken by the congregation, the defendant in the sixth paragraph of his answer declares, “ that he holds title thereto as trustee of said corporation in accordance with the laws, rules, discipline ■ and usages of the Catholic diocese of Scranton; ” and in the ninth paragraph he asserts : “ That he holds the title to the property in question and other property of said congregation as trustee for St. Joseph’s Lithuanian Catholic Congregation in accordance with the rules, discipline and usages of the Catholic Church in the diocese of Scranton.” What is meant by this, becomes apparent in the light of the findings and conclusions of the court in response to requests submitted on behalf of the defendant. The ninth finding of the court is as follows': “The canons of the Boman Catholic Church provide and require that the title to the property of the Boman Catholic Congregation which is under the jurisdiction of the Boman Catholic Bishop of the diocese in which the congregation has its place of worship, must be in the ordinary, or, in the present case, in the bishop of the diocese.” The first of the court’s conclusions of law is as follows : “ If a congregation is formed for the purposes of religious worship according to the faith and rites of the Catholic Church, has accepted the pastor assigned to it by the bishop of the diocese, has placed itself under the authority of the bishop and submitted itself to his authority in all ecclesiatical matters, the title to its property must be taken and held as provided by the canons of the Catholic Church. The property acquired by the congregation under such circumstances is the property of the church and is subject to its control and must be held in the manner directed by its laws. A congregation cannot divorce itself from the church or form an independent organization and retain the ownership of the property.” The second conclusion is as follows: “ That the title to the real estate described in plaintiffs’ bill is properly and legally vested in the defendant, Right Rev. Michael J. Hoban, Bishop of Scranton, as trustee for St. Joséph’s Lithuanian Catholic Congregation, in accordance with the laws and usages of the Catholic Church.”

It will be seen from this that what was a controversy over an unimportant result — the right to substitute one dry, passive trustee of a legal title for another — -was made to involve a question of ownership of property. It is to be observed, first, in regard to the defense here set up, that it is in effect the assertion by a trustee of a right and title adverse to his cestui que trust. The conclusion of the court, in affirmation of the position taken by the defendant, is that the property acquired by the congregation is the property of the church with which the congregation is affiliated, subject to its control, and must be held in the manner directed by its laws. This is a distinct and unequivocal denial of ownership in the congregation. We have seen that under the law the effect of the original conveyance was to vest the ownership of the property in the congregation. By no act on the part of the congregation, recognized by the law as sufficient for the transfer of its ownership, did it ever divest itself of such ownership. More than that, there is not a particle of evidence that any such divestiture was ever contemplated. The deed to the defendant is in trust for the congregation ; and it is to him, not as the ecclesiastical head of the diocese for the use of the church, but to him in his individual character, “ Right Reverend Michael Hoban, trustee of St. Joseph’s Lithuanian Catholic Congregation of the city of Scranton.” It is declared in the habendum that he is to hold it “in trust nevertheless and at all times for St. Joseph’s Lithuanian Catholic Congregation aforesaid.” So long, therefore, as defendant claims to hold in any degree under this conveyance, he cannot be heard to challenge the ownership of the congregation whose trustee he is therein declared to be. It is fundamental that a trustee, while occupying a place of trust and confidence, cannot be heard to set up an adverse holding: Perry on Trusts, sec. 863, and the authorities there cited. While it is not for us to inquire into the reasons for the action of the congregation in directing a conveyance to other trustees, we have no hesitation in saying that, if none other existed than the fact that the trustee in office denied the ownership of the party at whose pleasure and for whose use he was made trustee, this of itself would be sufficient to justify the action taken. Again, it is nowhere made to appear how, or by what proceeding, the church, as distinguished from the congregation, became invested with the ownership of this property. Conveyance to the church is not pretended; nor is forfeiture on the part of the congregation. Nothing is asserted in this connection but ecclesiastical rules and regulations, which, except as they are aided by legal conveyance, are ineffectual to divest any owner of his property. But more than this the position taken by defendant and sustained by the court, is in direct opposition to the law, whose supremacy, over all ecclesiastical rules and regulations, when rights of property are concerned, is not to be questioned. The Act of April 26, 1855, P. L. 828, sec. 7, provides that “ whensoever any property, real or personal, shall hereafter be bequeathed, devised or conveyed to any ecclesiastical corporation, bishop, ecclesiastic or other person, for the use of any church, congregation, or religious society, for religious worship or sepulture, or the maintenance of either, the same, shall not be otherwise taken and held, or inure, than subject to the control and disposition of the lay members of such church, congregation, or religious society, or such constituted officers or representatives thereof,” etc. The same act provides : That it shall be lawful for the majority of the male members, of lawful age, of any unincorporated church, congregation, or religious society to choose for their trustee or trustees any other person or persons than a layman; and whenever not previously declared, to declare the manner in which the title to their trust control shall be held and conveyed, subject, however, to all terms and conditions upon which the same may have been bequeathed, devised or conveyed to such unincorporated church, congregation or religious society, and upon due proof of such consent, any court having jurisdiction over trusts may direct the legal title to be conveyed accordingly.”

This legislation in most unequivocal terms confirms to every religious society, incorporated or unincorporated, the absolute ownership of its property, subject only to the condition that it shall not divert it from the uses and purposes and trusts to which it may have been lawfully dedicated. It expresses the settled policy of the state with respect to the tenure of property held by religious societies, that has been steadily observed without question for now more than half a century. Its restraining provisions positively forbid the setting up under such title as is held by this defendant, any use other than that which resides in the congregation.

It is to be remarked that we are dealing only with property rights. Such rights can be acquired only by, and in conformity with, the law of the land. When so acquired, the law which allows them must be equal to their protection and security. To conclude — the entire beneficial ownership in the property here sought to be involved is, and has been from the beginning, in the St. Joseph’s Lithuanian Catholic Congregation of the city of Scranton; the defendant is trustee of the legal title to the property for the exclusive use of said congregation, without any interest therein or any right or power to control its use or disposition ; the congregation has the right to substitute other trustees in his stead, and, having done so by a majority vote at a regularly called meeting for that purpose, it is entitled to the process of the court to compel a conveyance from the defendant to the trustee of its own selection. The plaintiffs requested a finding to the' effect that under all the evidence the plaintiffs were entitled to a decree directing the defendant to convey the property in question to the ten trustees named in the bill and chosen by the congregation. This was refused, and its refusal is the basis of the thirteenth assignment of error. The assignment is sustained. The decree is reversed at the costs of the defendant; and it is now ordered, adjudged and decreed that plaintiffs’ bill be reinstated, and it is ordered that a decree be entered in the court below, in accordance with this opinion, directing a conveyance from the defendant of the premises held by him in trust for St. Joseph’s Lithuanian Catholic Congregation of the city of Scranton to the plaintiffs, in trust for St. Joseph’s Lithuanian Catholic Congregation of the city of Scranton, within such time as to the court below may seem reasonable and proper.


author: Mr. Chief Justice Mitchell,

text:
    Stitzel’s Estate.
    ■ Executors and administrators —Accounting—Notice— Surcharge— Counsel fee — Exceptions—Parties—Amicus curia. ■

    A surcharge by the orphans’ court is an adjudication against the accountant which cannot be made without notice to him, and an opportunity to be heard before he is condemned.
    A surcharge of an executor for an overpayment of counsel fees is not one that can be made at all by the court without an exception by some interested party before it.
    Where the orphans’ court without notice or hearing has surcharged executors with money paid out as counsel fees; and it appears that the only parties interested are two charitable corporations who filed no exceptions to the account, did not employ counsel, and who in fact ask that the account be confirmed, it is error for the court to appoint an attorney as amicus curise to file exceptions, and on such exceptions to hear testimony, and confirm the first surcharge and make an additional surcharge.
    ' It is not the office of an amicus curise to become prosecutor to put into shape objections dictated by the court, and which the court itself has no authority to make in the absence of objection of_some party in interest. .
    Argued March 3, 1908.
    Appeals, No. 404, Jan. T., 1907, and No. 59, Jan. T., 1908, by Ilarvey H. Shomo and David K. Peters, Executors, from decrees of O. C. Berks Co., Dec. Term, 1906, No. 29 and June T., 1907, No. -53, dismissing exceptions to adjudication in Estate- of George D. Stitzel, deceased.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    Reversed.
    Exceptions to adjudication. Before Bland, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in dismissing exceptions to adjudication.

      George S. Graham and Isaac Hiester, with them Stevens <& Stevens, for appellants.
    In the absence of exceptions duly taken the court has no authority to surcharge accountants by. striking out credits in the account or to do anything in such case but examine and after due consideration confirm the account, and if exceptions be filed the court cannot surcharge accountants further than the exceptions demand: Gaston’s App., 1 Pitts, 48; Mengas’s App., 19 Pa. 221; Stewart’s App., 110 Pa. 410 ; Brennan’s Est., 65 Pa. 16.
    May 11, 1908:
    The court had no authority to proceed to make a decree on objections to credits in the account except upon complaint of a party showing an interest therein who appeared, filed exceptions and became liable for costs. A complainant is an essential part of a court and no court is duly constituted without one: Huber v. Reily, 53 Pa. 112; Tracy’s Est., 15 Montgomery County Law Repr. 30 ; Herbein’s Est., 2 Chester County Rep. 449.
    Even if the exceptions had been filed by an interested party or if no exceptions were necessary the court had no authority to adjudicate a surcharge except on notice to the accountants and an open hearing in court at which the accountants had an opportunity to be present: Brown v. Hummel, 6 Pa. 86 ; Dale v. Medcalf, 9 Pa. 108 ; Ervine’s App., 16 Pa. 256 ; O’Hara v. Stack, 90 Pa. 477; Patterson’s Case, 1 W. N. C. 454; Heblich v. Slater, 217 Pa. 404.
    The action of the court in permitting the attorney who undertook to appear for St. Joseph’s Hospital to speak in the cause after his failure to file his warrant of attorney was a direct violation of law and cannot be justified by appointing him amicus curiae : Fisler v. Reach, 202 Pa. 74; Com. v. Collom, 1 Pa. Superior Ct. 542 ; Martin v. Tapley, 119 Mass. 116.

      George J. Gross, with him Anthony A. Hirst and James Fitzpatrick, for appellee.
    The orphans’ court committed no error in the method pursued in this case: Kittera’s Estate, 17 Pa. 416 ; Stockton’s Appeal, 64 Pa. 58 ; Williamson’s Appeal, 94 Pa. 231; Lowry’s Appeal, 114 Pa. 219 ; Mengas’s App., 19 Pa. 221; Yundt’ Est., 6 Pa. 35; Yoder’s App., 45 Pa. 394; Drenuan’s App., 118 Pa. 176.
   Opinion by

Mr. Chief Justice Mitchell,

The executors of Stitzel filed their account showing a balance due to the residuary legatees, St. Joseph’s Hospital and the Homoeopathic Hospital of the city of Heading. No exceptions were filed to the account by either of the residuary legatees and no other parties appear to be interested. The learned judge below, on his own motion without notice or hearing, surcharged the executors with $2,500 out of $4,000 paid by them as counsel fees. To this adjudication the executors filed exceptions, and when these were called for argument the executors were offered by the court an opportunity to present evidence on the subject of the exceptions. Accountants declined to present any such evidence, but desired to argue the regularity of the court’s action, whereupon Mr. Gross appeared on behalf of St. Joseph’s Hospital and desiring to file exceptions to the account, was ruled to file his warrant of attorney. On the return of this rule Mr. Gross answered admitting that he represented no one authorized to execute a warrant of attorney, but the court immediately appointed him amicus curise, allowed him to file exceptions and compelled the executors to undergo an examination at his hands not only on matters pertinent to the surcharge, but on the administration of the estate generally.

At a continuance of this hearing, on a subsequent day the accountants presented formal resolutions by the boards of trustees of the two residuary legatees requesting the court to dismiss the exceptions and confirm the account as originally filed. Disregarding these resolutions the court subsequently filed a second adjudication, not only confirming the first surcharge, but making an additional surcharge of the other $1,500 previously allowed for counsel fees and striking off the accountants’ entire compensation on the ground that there had been an overvaluation of securities "which the legatees had accepted in kind, and thereby the commissions had been inflated.

This is a sufficiently detailed recital to show the nature of the proceedings, and anything more illegal would be hard to find. Every step was irregular.

By the Act of April 14,1835, sec. 1, P. L. 275, the orphans’ court is directed to examine the accounts of executors and if not excepted to they shall after due consideration be confirmed, but if any person interested in the estate shall except to the account,” etc., the court shall decide whether the matters contested call for reference, etc. The usual course of practice ■where' no exceptions are filed is to confirm the account without further proceedings, and the accountants in the absence of notice are entitled to assume that this course will be followed. The duty, however, to examine with due consideration carries with it the right of the court on its own motion to make inquiries, suggest objections and call for explanations. But such matters must -be treated judicially, upon notice and hearing. A surcharge is- an adjudication against the accountant which cannot be made without notice to him and an opportunity to be heard before he is condemned. And a surcharge of the kind made in this case for an overpayment of counsel fees is riot one that can be made at all by the court without an exception by some interested party before it. There is no question of law-or public policy involved, simply a question of the proper or improper amount paid for a proper charge. If the residuary legatees out of whose pockets the fees would come had been individuals who had expressly agreed to the fees, the court would have had no authority to say they should not be allowed. The right of contract or consent in such cases is in the parties, not the court. And it makes no difference that the immediate parties are corporate trustees. All that the court could properly do was to notify the parties, state the objections and make sure that the trustees understood the court’s views. After that the decision rested with the trustees. In the present case the trustees not only failed to"except, but formally and -explicitly declined to do so and requested confirmation of the account.

There was not only no authorized exception by either of the only parties interested, but there was no one before the court-entitled to speak for them even as nominal exceptants. Mr.-Gross attempted to appear, but had to confess that he could not -produce a warrant of attorney after being ruled to do so. That ended any right to speak for them if he had had any before : Act of April 14, 1834, sec. 11, P. L. 333.

The first’ adjudication and surcharge being without notice or hearing were-illegal and void.' And the attempt to cure the defects subsequently was equally futile. The accountants were entitled to- a fair hearing before judgment, not merely-to an opportunity to .con vince a judge who had already prejudged the case. Further, all the proceedings were irregular for the reason as already suggested that there was no one before the court entitled to raise exceptions. The judge appointed Mr. Gross as amicus curiae and allowed him as such to file exceptions. But it is not the office of an amicus curiae to become prosecutor to put into shape objections dictated by the court, and which the court itself as already shown had no authority to make in the absence of objection by some party in interest.

What is said in Franklin’s Appeal, 163 Pa. 1, may be appropriately repeated here. “ It is not intended in this opinion to say that a judge may not, of his own motion, initiate an investigation for the correction of evils in the administration of justice. He is the responsible head of his court, and if he has reason to suspect wrongs or irregularities it is not only his right but his imperative duty to see to their correction. But .he should proceed in an orderly and judicial manner. . . . The legal remedies are ample and effective, but none of them permits a judgment before a hearing. A judge never serves either law or justice by proceeding lawlessly, or forgetting that a court is a tribunal where justice is judicially administered. Actual justice may be done and sometimes effectively by the summary action of a vigilance committee or a mob of lynchers, but' it is not done judicially, and the dangers are such as no civilized community can afford to tolerate. Deliberate and orderly proceedings, including, as a foremost requisite, a full and impartial hearing before judgment, are the inviolable safeguards of public justice as well as of individual liberty.

“With the best intentions, no doubt, and under the belief that the situation required extraordinary action, the learned judge nevertheless adopted a method which cannot be sanctioned. The whole proceeding was non-judicial, void in form and in substance, and it is ordered to be struck off the record.”

The decree is reversed, all objections to the account are overruled and the account directed to be confirmed.


author: Mr. Justice Elkin,

text:
    Beisel v. Gerlach, Appellant.

      Parent and child — Husband and wife — Alienation of daughter’s affections — Suit by husband against wife’s father — Malice—Parental affection —Evidence.

    The reciprocal obligations and affections of parent and child last through life, before and after marriage, and in the trial of an action by a husband against his wife’s father for the alienation of his wife’s affection, the greatest care should be exercised so that the assertion of a supposed right of action may not be based upon a proper parental regard for the welfare and happiness of the child.
    There is a wide and essential difference between the rights and privileges of a parent in such a case, and those of an intermeddling stranger. The law recognizes the right of a father to advise his daughter about her domestic affairs without incurring liability for alienation, if the advice be given in good faith and prompted by worthy motives even if such advice influenced the daughter in making up her mind to separate from her husband. In other words, there can be no recovery against the father unless it clearly appears that he acted maliciously, without justification and from unworthy motives.
    In an action against a father to recover damages for the alienation of his daughter’s affections from her husband, it is not only necessary to allege in the statement of claim all the essential elements required to sustain the action, but the measure of proof must be correspondingly high. It will not do to allege an extreme case and support it by indifferent proof, or by proof which fairly considered only shows that the parent did what any parent would have done under similar circumstances for the peace and comfort and happiness of his household.
    In this class of cases the first duty rests with the court to say whether the evidence is sufficient to meet the measure of proof required, and whether, if believed, it would warrant a finding by a jury in favor of the plaintiff. A jury in the absence of sufficient evidence should not be permitted to guess at, or conjecture about the rights and liabilities of parents and children involved in cases of this class.
    ■ Letters written by the wife to her husband are not sufficient to support a charge that the father had alienated the affections of his daughter, where there is nothing in the evidence to show that the father had anything to do with the letters, or had been responsible for having them written, or that the letters themselves showed alienation of affection or any misconduct on the part of the father.
    Argued March 9, 1908.
    Appeal, No. 109, Jan. T., 1907, by defendant, from judgment of C. P. Northampton Co., Sept. Terna, 1905, No. 71, on verdict for plaintiff in case of George ~W. Beisel, by bis next friend, John Beisel, v. E. J. Gerlacb.
    May 11, 1908 :
    Before Fell, Brown, Mestrezat, Potter and Elkin,' JJ.
    Reversed.
    Trespass to recover damages for alienation of wife’s affections. Before Scott, J.
    The opinion of the Supreme Court states the case.
    Defendant presented these points :
    1. There being no evidence in the cause that defendant made any false and malicious statements of and concerning the plaintiff to his wife, under the pleadings there can be no recovery by the plaintiff. Answer: Refused. [10]
    2. There being no evidence in the case that defendant encouraged and compelled plaintiff’s wife to receive the attentions of other men, and no evidence that he promised to secure a divorce for her from plaintiff, so that she could marry another man, under the pleading there can be no recovery. Answer: Refused. [10]
    3. The proof and testimony in the case do not support the allegations of plaintiff’s pleadings, and there can be no recovery by him. Answer : Refused. [10]
    Yerdictand judgment for plaintiff for $2,500. Defendant appealed.

      Error assigned among others was (10) answers to defendant’s points, quoting them.

      W. E. Doster, for appellant, cited : Gernerd v. Gernerd, 185 Pa. 233 ; Reading v. Gazzam, 200 Pa. 70.

      James T. Woodring, for appellee.
   Opinion by

Mr. Justice Elkin,

This is an important case in the sense that it has to do with the rights, duties and liabilities of a parent in dealing with a married child. The action is brought by a son-in-law against his father-in-law to'recover damages for the alienation of the affection of the wife of the former and daughter of the latter. At the old common law it is doubtful whether the alleged alienation of the affection of a child by a parent under such circumstances was actionable, and while the courts in more recent years have opened the door to this class of cases by recognizing the right to maintain such an action under certain circumstances, it should be borne in mind that the reciprocal obligations and affections of parent and child last through life, before and after marriage, and in the trial of such causes the greatest care should be exercised, so that the assertion of a supposed right of action may not be based upon a proper parental regard for the welfare and happiness of the child. Almost a hundred years ago it was said by Chancellor Kent that “ A father’s house is always open to his children; and whether they be married or unmarried, it is still to them a refuge from evil and a consolation in distress. Natural affection establishes and consecrates this asylum. The father is under even a legal obligation to maintain his children and grandchildren, if he be competent and they unable to maintain themselves ; and according to Lord Coke, it is nature’s profession to assist, maintain and console the child. I should require more proof to sustain the action against the father than against a stranger. It ought to appear either that he detains the wife against her will, or that he entices her away from her husband from improper motives.”

In actions of this character the question is whether the father was moved by malice and without justification, or by a proper parental regard for the welfare and happiness of his child. There can be no law to restrain a father from honestly and properly endeavoring to protect his daughter, b}r means of counsel and advice concerning her marital relations, so long as he in good faith advises what he believes to be right and proper under the circumstances.

There is a wide and essential difference between the rights and privileges of a parent in such cases and those of an inter-meddling stranger. In all such cases the motives of the parent are presumed good until the contrary is made to appear. It is true a father has no right to restrain his daughter from returning to her husband if she desires to do so. On the other hand, he may lawfully give counsel and advice for her own good and shelter her in his own house, if she chooses to remain with him, without making himself liable in an action of damages. The law recognizes’the right of a father to advise his daughter about her domestic affairs without incurring liability for alienatioh, if 'the advice be given in good faith and prompted by worthy motives, even if such advice influenced the daughter in making up her mind to separate from her husband. In other words, there can be no recovery against the father unless it clearly appears that he acted maliciously, without justification, and from unworthy motives. This is substantially the rule' recognized in all jurisdictions: Burnett v. Burkhead, 21 Ark. 77 ; Nevins v. Nevins, 68 Kan. 410; Zimmerman v. Whiteley, 134 Mich. 39 ; Payne v. Williams, 63 Tenn. 583 ; Tucker v. Tucker, 74 Miss. 93; Reed v. Reed, 6 Ind. Appeal, 317 ;. Bennett v. Smith, 21 Barb. (N. Y.) 439 ; Young v. Young, 35 Pac. Repr. 592 ; Huling v. Huling, 32 Ill. App. 519;. Brown v. Brown, 124 N. C. 19.

In the present case the,amended statement of claim alleges that the defendant did willfully, unlawfully and maliciously cause his daughter to separate from her husband and that he encouraged her to receive1 the attentions of other men under a promise that he would procure a divorce for her so that she could remarry, by reason of which acts and promises the affection of the wife for her husband was alienated. These allegations were evidently made in the amended statement because the averments of, the original declaration'were not deemed sufficient to sustain the action against the father under the rule hereinbefore referred to. In this connection it is proper to remark, that it is not only necessary to allege all the essential elements required to sustain the action, but the measure of proof must be correspondingly high. It will not do to allege an extreme case and' support it by indifferent proof, or by proof which fairly considered only shows that the parent did what any,parent would have done under similar circumstances for the peace and comfort and happiness of his household. We have, examined with painstaking care the record in this case, and have carefully read all the testimony in order that it might be propérly determined whether the evidence was sufficient to justify the' submission of the question to the jury. In this class of, cases" thb first duty rests with the court to say whether the evidence iá. Sufficient to meet the measure of proof required' aMwhether,df4>elieved, it would warrant a finding by a jury in favor of the plaintiff. As to the allegation that the father encouraged the daughter to receive the attentions of . other men, no testimony was offered in support of it and it ■ must fall. The case, therefore, must rest on the allegation that the father by false and malicious statements alienated the affection of his daughter from her husband and did unlawfully in a spirit of malice, without justification, cause a separation. No single fact proven, nor all of the facts combined, are sufficient to establish these allegations, and it is the duty of the court to say so. A jury, in the absence of sufficient evidence, should not be permitted to guess at or conjecture about the rights and liabilities of parents and children in this class of cases. The plaintiff’s case rests almost entirely on his own testimony, the important part of which relates to what occurred at the time the defendant ordered him to leave his house on April 24, 1905. There is some further testimony about what occurred at two subsequent interviews, one when he returned the key of the house and the other at a meeting on the • street. He is contradicted in all the material facts of his testimony by the- other, parties present, but if it was only a question of credibility, it would have to go to the jury. In our opinion, however, his testimony is not sufficient, if believed, to warrant a finding that the father without just cause and with malicious purpose did unlawfully alienate the affections of his daughter from her husband. The wife, and ■daughter, in this case was a young girl fifteen years of age, wayward and self-willed. She was seduced by a schoolmate and became pregnant with child to him. Several months after the child wras conceived, and before the parents were aware of the condition of their daughter, Beisel the appellee, a boy about the same age, came upon the scene, took the place of the seducer, and subsequently married the girl. The child was born a very few months after the marriage and that it has been the cause of much dissension subsequent events clearly demonstrate. A boy husband, and a girl wife, with a child born a couple of months after-marriage, the real father another boy in the community, a fact known to both young husband and wife, furnished a situation full of discord and dissension, all of which quickly followed. The boy husband was poor, without a home- to shelter his-young wife, and accepted the hospitality of the father, whom he now tries to mulct in damages, but who then furnished him and his family food and shelter. The young couple acted like the children they were. At times they seemed fond of each other, and at other times, they quarreled and .bickered and pouted, then made up again and seemed to forget their troubles. Sometimes the jroung wife would refuse to speak to her husband and ordered him away and thus the trouble grew. It finally culminated in a quarrel which resulted in wearing out the patience of the father who ordered the young husband to leave the house and not return to it. Just what occurred at this interview is in some doubt. The young husband says the father commanded him to leave and that he would not allow his wife to go with him and that he said his daughter should never live with him again. This is all denied by the father, mother and brother who were present, but at most it was only an expression of the displeasure of the father whose patience had been worn out, and the peace of whose household had been disturbed by these young people. There was no malice in this; it was righteous indignation manifested in temper and fully justified under the circumstances.

As to the letters offered in evidence, we are inclined to think there is some force in the suggestion of the learned counsel for appellant that they were improperly admitted for the purpose offered. They showed not any alienation of affection, but continued affection by the wife for her husband. However, we do not deem it necessary to pass upon the question of their admissibility because, if properly admitted, there was nothing to show that the father had anything to do with them, or had been responsible for having them written. Certainly under these circumstances nothing said in the letters would be sufficient to support a charge • that the father had alienated the affections of the daughter.

Our conclusion is that the testimony was wholly insufficient to support the action, that the case should not have been submitted to the jury and that a verdict should have been directed for the defendant.

Judgment reversed and is here entered for defendant.