author: Head, J.,

text:
    Bechtel’s Election Expenses.

      Election law — Election expenses — Audit of candidates — Findings of fact — Amendment—Constitutional law — Costs—Evidence.
    1. The findings of fact of a judge sitting as an auditor of the account of a candidate’s election expenses will be given the same force and effect by the appellate court that would be given to similar findings by an auditing judge in the orphans’ court or a common pleas judge sitting in equity. In the absence of any manifest error on the part of the court below, the appellate court must accept the facts as found.
    2. At the audit of a candidate’s expense account, evidence that a person to whom the candidate intrusted money to be spent in a legal way, spent such money in an illegal way, is inadmissible where there is no offer to show that the illegal expenditure was made with the knowledge and consent of the candidate.
    3. Where a witness for the petitioners for an audit of a candidate’s account, has testified in his examination in chief that he had had no conversation with the candidate, and had received no money from him, the witness cannot on cross-examination be questioned as to statements of a contrary character made by him to other parties when the candidate was not present.
    4. At the audit of a candidate’s election account the auditing judge may in his discretion permit an amendment so as to enable the candidate to file receipts omitted from the account, and to place on the record the names of certain canvassers omitted from the account.
    5. Under the Act of March 5, 1906, P. L. 78, known as “The Corrupt Practices Act,” a candidate may intrust money to another person and authorize him to act as his agent or representative in the expenditure of money for proper purposes in the election campaign.
    6. Where a candidate shows in his account an item of considerable amount intrusted to another to be expended for lawful campaign purposes, but fails to set out in the account the purposes for which the money was spent, and the evidence taken at the audit shows that the money was spent in a lawful manner, the court in sustaining the account should impose the costs upon the accountant, and not upon the petitioner, inasmuch as the audit was made necessary by the failure of the candidate to show in his account that the moneys intrusted to his agent were spent in a lawful manner.
    7. The act of March 6, 1906, known as “The Corrupt Practices Act” is constitutional.
    Argued Dec. 9, 1908.
    Appeal, No. 170, Oct. T., 1908, by-Andrew Robertson et al., from order of Q. S. Schuylkill Co., dismissing petition for audit of account of Harry 0. Bechtel, candidate for Judge of Schuylkill County.
    Before Rice, P. J., Porter, Henderson,’Morrison, Orlady, Head, and Beaver, JJ.
    Affirmed, except as to costs.
    Audit of account of Harry L. Bechtel, candidate for judge. Before Mare, P. J., and Shay, J.
    At the audit the judges permitted the accountant to file receipts omitted from the account which should, have accompanied it. (8) They also permitted the accountant to file the names of certain canvassers which had been inadvertently omitted from the account, although the sums paid to them had been set forth therein.
    The petitioners made requests as follows:
    “ (a) That the payment of $700 to J. H. Nichter as set out in the account was illegal.
    “ (b) That the payment of $200 to H. T. Bechtel as set out in the account was an illegal payment.”
    To these requests, we answer as- follows, that the account on second line reads as follows, under one column headed “date paid,” second column, “to whom paid or promised,” third column bearing the word “amount.”
    “October, 30th, 1907. J. H. Nichter, as per receipt, $700.”
    Accompanying the account is the following receipt:
    “Pottsville, Pa., October 30,1907.
    “Received of H. O. Bechtel the sum of seven hundred dollars in sums as follows: First, two hundred dollars. Second, two hundred dollars, and the third time, three hundred dollars, this money to be expended strictly in accordance with the Act of Assembly approved the 5th day of March, 1906, and especially the 4th section of said Act, for. the purpose of canvassing the ‘dissemination of information to the public’ by employing canvassers to canvass the different election districts to explain and answer any charges, assertions or statements affecting or intended to affect me as a candidate for- Judge, and to canvass among the electors or voters for the purpose of bringing or causing them to come to the polls, and to pay part of the expenses of the meetings held in my interest. And it is expressly understood and agreed that no one person shall be paid a sum exceeding in amount the sum of ten dollars.
    “J. H. Nichteb.”
    The account refers to this receipt as explanatory of the uses to be made of the money given to the party mentioned in the account. The evidence of J. H. Nichter, who was called by the petitioners, further explains the use to which the money was appropriated, showing that at different times a part of it was paid to Charles J. Carroll for salary and traveling expenses, canvassing in the interest of H. 0. Bechtel; a part to S. Hogan; a part’to P. P. Pulaski; and to other parties, who were employed as canvassers, and receipts signed by the different parties, giving dates, the amount paid at the different times and the purposes for which the money was used are given in evidence.
    The same state of facts exists as to the disbursement of $200 to H. T. Bechtel, which is the first credit set forth in the account, which gives the date, the name, the amount and says as per receipt, which receipt accompanies the account and sets forth the purposes for which the money was to be used. This receipt is further explained by H. T. Bechtel, a witness called by the petitioners. The purposes for which this money was disbursed, as set forth either in the receipts or in the evidence, cannot be claimed to be illegal; and the manner of setting forth these credits by giving the date, to whom paid, the amount paid, and the purpose as set forth in the receipts, does not stamp the payments as illegal; and we therefore decline to affirm these requests. [2, 3]
    J. H. Nichter, was asked this question:
    “Q. Did you furnish any liquor during the campaign, in the interests of H. 0. Bechtel? ”
    Mr. Reilly: Objected to.
    Mr. Schalck: We want an offer.
    Mr. Farquhar: We want to offer to show by this witness that he furnished liquors for the election, for the benefit of H. 0. Bechtel.
    Mr. Schalck: For what purpose?

      Mr. Farquhar: For the purpose of showing the incorrectness of this account as furnished by him.
    Mr. Schalek: It is objected to, that the proposed inquiry is incompetent, irrelevant and immaterial. The court is here to audit the account of the accountant here. It is on petition of these gentlemen that the accountant has been ordered for audit, and the court is simply to audit this account. There is nothing in the account of this accountant that has reference to these matters, and what Mr. Nichter did or did not do in that direction, if he did anything, is wholly immaterial, irrelevant and incompetent, for it is not alleged, and cannot be proven, that what he did was by the direction or order of the accountant, or with his knowledge or consent. An accountant or candidate is not to be affected by what his friends may do, or others may do, without his knowledge or consent; he only is responsible for that which he himself does or directs or orders to be done.
    Judge Marr: There is nothing in the offer, as I understand it, that proposes to connect the accountant with this dispensing of liquor, is there?
    Mr Farquhar: No. We have shown by the witness that this money was furnished to him in advance of his giving a receipt for it; all of it was furnished him in advance of the giving of the receipt. The act of the legislature requires that for every disbursement they shall give the date, name of the party to whom it is given, and the purpose for which it is given. He has received, he admits, $700 from H. 0. Bechtel, and has undertaken to show how he disposed of it. We may show by this witness that, having been the agent of H. 0. Bechtel, his receipts are not true; that in addition to these matters he dispensed liquor of various kinds, a valuable consideration, for and on behalf of H. O. Bechtel.
    Judge Marr: By his direction?
    Mr. Farquhar: We cannot show directly by his direction, but we can show that he has placed the money in his hands; he has made him his agent, not by any receipt given at the time he gave him the money, but after all the money is given, after the expenses have been paid, then he comes to him and tells him he has to get up his account and he wants a receipt, and then the receipt-is gotten up. May we not show what this man actually did do in the canvass which he made for H. 0. Bechtel, and what amount he gave out in money and in liquor? H. 0. Bechtel has made him his agent.
    Judge Mark: Both my colleague and myself have given the questions which we thought would arise in this case considerable thought and examination, and the different authorities upon this matter, so that when the questions would come up, we could meet them with some knowledge in reference to how these questions had been ruled by other courts, or questions of a similar character. We both feel that the objection to this question here is well taken, unless counsel first show that the acts complained of as having been committed by the witness upon the stand were done with the knowledge or consent of the candidate. It does seem to me that to hold contrary would be placing a very great hardship upon every man who is a candidate for office. It is very questionable in my mind whether the legislature, in this act of assembly which is passed and on which this controversy is now waged, ever intended to place the construction upon it as claimed by counsel who raised this question, and as there is nothing to connect the candidate, either directly or indirectly, as I look upon it, with any improper expenditure of money, we think the objection ought to be sustained. It seems to me that to sustain evidence of that kind might put a candidate in a very serious position, if some party would profess friendship for him and pretend to act in good faith as his representative, in assisting him in his canvass, and at the same time might be betraying him by committing illegal acts, and then to hold the candidate responsible for those illegal acts would be a hardship. That is one of the conclusions, it seems to me, that would necessarily follow from the line of argument which has been urged by counsel who demand the admission of this testimony. We-would prefer that a higher court should say that a- rule of this kind, or a burden of this kind, I should say, shall be placed upon a candidate, than myself or even my colleague, as I understand it. The objection is sustained.
    Petitioners except. Bill sealed. [4]

      C. W. Lutz was asked this question:

      “ Q. Did you have a conversation with Judge Koch there? A. Yes, sir.”
    Mr. Reilly: Objected to as incompetent, immaterial and irrelevant; and, further, that counsel for the petitioners have no right, under the rules of evidence, to cross-examine their own witness.
    Judge Make: The mere question is, did he meet Judge Koch? He has answered that question, and we will allow it to stand.
    Mr. Schalck: We want a purpose.
    Mr. Smith: We propose to show that the statements of the witness, previously made, are in contradiction of what he has testified to, and it is a surprise to'counsel for petitioners; and we claim the right now to show that by the further examination of the witness.
    Mr. Farquhar: We may cross-examine our witness where we allege surprise.
    Judge Maee: You have a statement on record that you are surprised at the answers of this witness. That may be true, nobody is contradicting it; but I do not think the mere fact that you are surprised would justify the introduction of testimony or conversations between him and Judge Koch at a time when the party whose account is here being contested was absent. We think we will sustain the objection.
    Mr. Smith: We propose to prove by the witness on the stand, in addition to the facts alleged in the offer already made, that he communicated to Judge Koch, on or about August 21, 1907, the fact that he had been offered by H. 0. Bechtel the sum of $175 to quit the “Frackville Star,” that was then about to publish a special political edition bearing particularly on the candidacy of H. 0. Bechtel for judge. We propose further to show that later the witness on the stand wrote to U. G. Mengel, the proprietor of that paper, that he had been bought, and that he severed his connection with the “ Frackville Star ”; to be followed by further evidence of the fact that the witness on the stand declared, at a later time than the conversation with Judge Koch, that he had been paid $175 by H. 0. Bechtel for the same purpose.

      Mr. Schalck: For what purpose?
    Mr. Smith: For the purpose of inducing him to leave the “Frackville Star.” All of which is offered for the purpose of showing the expenditure of money by H. 0. Bechtel in violation of the act of assembly, and for the purpose of showing expenditure of money by H. 0. Bechtel that is not accounted for in the account filed; and for the further purpose of refreshing the witness’s memory as to the transaction, as to the facts.
    Mr. Reilly: It is objected to as incompetent, irrelevant and immaterial. The witness having already been examined by counsel for the petitioners, and having testified in his examination in chief that he did not have any conversation with H. 0. Bechtel, the candidate for judge, whose account is now being audited, or receive from him any money during the campaign, the petitioners cannot now contradict their own witness by offering to give in evidence any declarations to the contrary, that the witness may have made out of court to another person, in the absence of or when H. 0. Bechtel, the candidate, was not present. It is further objected to, that the offer does not state or propose to prove that any moneys so alleged to have been paid as stated in the offer, were paid for the purpose of influencing either the witness or any other person, or of the election of H. 0. Bechtel as a candidate, in any way.
    Mr. Schalck: And that the alleged declarations of this witness to the parties here referred to in the question, are wholly incompetent and irrelevant, and do not prove or tend to prove what is charged against the accountant in this case.
    Objection sustained.
    Petitioners except. Bill sealed. [5]
    “Q. Since reading this letter, state whether or not it does not refresh your recollection as to the fact whether or not you received money to quit your position on the ‘Frackville Star.”’
    Mr. Reilly: Objected to, unless it is proposed to show or prove it was from the candidate; and it is further objected, that that subject has already been inquired of, and counsel for the accountant object to this constant repetition, cross-examining their own witness on the same subject. I object to a repeated examination of their own witness on the same subject-matter, and appeal to the court to limit it.
    Mr. O. P. Bechtel: We also add to the objection, that it is not proposed to show that any money was paid to influence his vote or to induce him to support this candidate, or to make any other interests for this candidate, unlawfully.
    Mr. Smith: The offer was to show money expended in the political campaign and that was required to be entered into the account, and we offered to show that the money was not entered into the account. But the question before the court now is as to the right to cross-examine our own witness.
    Question read.
    Mr. Reilly: My objection was that the question does not state it was from this candidate, and the witness has testified he has not received any money from this candidate, and it is immaterial and irrelevant whether he received any money from anybody else.
    Objection sustained.
    Petitioners except. Bill sealed. [6]
    John F. McGinty was asked this question:
    “ Q. State whether you have had any interviews with H. 0. Bechtel during the campaign? A. I did, yes. Q. State whether in pursuance of those interviews you used money and liquor in the campaign? ”
    Mr. Reilly: Objected to as incompetent, immaterial and irrelevant, that they must first prove that the money or liquors so used were used unlawfully and with knowledge and consent or by the direction of the candidate.
    Judge Marr: We sustain the objection.
    Petitioners except. Bill sealed. [7]
    The court made the following order:
    And now, July 27, 1908, it is herewith decided that the account in this case is not false in any manner, that no illegal expenses have been incurred, that the petition be dismissed and the costs of these proceedings be paid by the petitioners.

      Errors assigned were (1) the order of the court; (2, 3) refusal of petitioners’ requests; (4-7) rulings on evidence, and (8, 9) allowance of amendments.

      Guy E. Farquhar and Cyrus G. Derr, with them Edmund D. Smith, for appellants. —
    The payments to Nichter were illegal because he was to disburse the money and was neither a candidate nor a member or treasurer of a political committee; he was not compelled to file an account, and was responsible to no one except the accountant, and to him he rendered no account.
    To hold that money for the purposes of disbursement can be paid by a candidate to one who is not a candidate or a treasurer bound to file a sworn statement as provided by the act, or to hold that a candidate may pay money to an organization to employ canvassers among its members, would be to nullify the act, and construe it contrary to the plain intent of the legislature as shown by the spirit and reason of the law, by considering the effects and consequences which will follow from such a construction, and by considering the mischief sought to be corrected and the remedy provided by the act: Whitmire v. Township of Muncy Creek, 17 Pa. Superior Ct. 399.
    The provision of the act of 1874 permitting the incurring of lawful expenses “through other individuals,” is omitted from the act of 1906, for the evident purpose of effecting such a change in legislation as would make the remedy of existing evils in elections possible and without which change the act of 1906 would be a dead letter: Johnston’s Est., 33 Pa. 511; Reeves’s App., 33 Pa. Superior Ct. 196; Com. v. Fraim, 16 Pa. 163; Big Black Creek Imp. Co. v. Com., 94 Pa. 456.
    The effect and consequence of a proposed construction of a statute, as well as its reason and spirit, are to be considered in determining its validity: Whitmire v. Muncy Creek Twp., 17 Pa. Superior Ct. 399; Appeal of City of Scranton School District, 113 Pa. 176; Scranton City v. Ansley, 34 Pa. Superior Ct. 133; Pettit v. Fretz, 33 Pa. 118; Umholtz’s License, 191 Pa. 177; Jones v. Beale, 217 Pa. 182; Com. v. Philadelphia County Commissioners, 2 S. & R. 193; Com. v. Shaleen, 215 Pa. 595.
    The general question will be this. The law has decided that a candidate at an election is responsible for the acts of agents, who are not, and would not necessarily be, agents under the common law of agency: Wakefield’s Case, 2 O’Malley & Hardcastle’s Election Cases, 102.
    April 19, 1909:
    The court erred in placing the costs of the proceeding on the petitioners.

      O. P. Bechtel and W. U. Hensel, with them Jas. J. Bell, M. M. Burke, J. B. Reilly, and A. W. Schalck for appellee. —
    The amendments were proper: Com. v. Haines, 39 Legal Int. 5; Johnson v. Com., 115 Pa. 369; Com. v. Silcox, 161 Pa. 484; Com. v. Preston, 188 Pa. 429.
    The findings of fact are conclusive: Com. ex rel. v. Stevens, 178 Pa. 543; Steinmeyer v. Siebert, 190 Pa. 471; Hancock v. Melloy, 187 Pa. 371; Byers v. Byers, 208 Pa. 23; Gay v. Chambers, 37 Pa. Superior Ct. 41.
    The candidate had the right to give money to another person to be lawfully expended: Duffy v. Mason, 1 Ellsworth, 361; Rennick v. Hodgins, Elect. Cases, 70; Wheeler v. Gibbs, 4 Canada Sup. Ct. 430; Miles v. Roe, 1 Ont. Elect. Cases, 41; Com. v. Johnston, 2 Pa. Superior Ct. 317.
    The act of 1906 does not repeal any part of the act of 1874: Com. v. Decamp, 177 Pa. 112; Uhler v. Moses, 200 Pa. 498; Boileau’s Case, 2 Pars. 503.
   Opinion by

Head, J.,

A number of important propositions, strongly urged upon us at the argument of this cause, have been practically disposed of by the decisions, since the argument, In re Likins, 37 Pa. Superior Ct. 625, 637, and the affirmance of both of those judgments by the Supreme Court. Following these decisions we' must hold the Act of March 5, 1906, P. L. 78, commonly called “The Corrupt Practices Act,” — at least as to the several sections thereof involved in this appeal — to be a valid and constitutional enactment. The motion to quash the appeal, because of the alleged invalidity of the act, must therefore be denied.

In this case we have to deal more particularly with the administrative portions of the act prescribing the procedure, or providing the machinery, so to speak, by which the primary legislative design is to be made operative and effective. The act, generally speaking, belongs to that class of legislation called remedial. It was enacted at a special session of the legislature summoned by the governor, and was the legislative response to a vigorous demand by the people, that a remedy be found to stop the corruption fast becoming an incident of our popular elections which, if unchecked, would soon destroy the free and honest expression of the will of the people. If possible, the construction of such a law should always be such that the legislative intent may be accomplished, ut res magis valeat quam pereat. And the application of this rule, as to an act generally, is none the less demanded even if it should appear that it contains certain penal provisions. In Com. v. Shaleen, 215 Pa. 595, Mr. Justice Stewart says: “That part of the act we are considering calls for liberal construction; it is not penal but beneficial and remedial, and is to be construed so as to give effect to the legislative intent. 'There is no impropriety in putting a literal construction on a penal clause, and a liberal construction on a remedial clause in the same Act of Parliament. ’ . . . The same rule has been frequently applied, in our own cases, and only very recently by the present Chief Justice in Stull v. Reber, 215 Pa. 156.”

Turning then to the statute we find that it recognizes, as lawful, the expenditure of money for “election expenses,” provided such expenditure is confined to the purposes and objects specifically set forth in the act. But the persons who may make even such lawful expenditures are confined to two classes, to wit, candidates and treasurers of political committees. The individual citizen may still lawfully give his money to aid the success of the political party or the advancement of the political cause he deems most desirable. But he may not do this by undertaking himself the expenditure of even his own money for “election expenses.” 'He must contribute it directly to a candidate or to a political committee because only through one of these two channels can it lawfully be expended for even the purposes designated in the act. “No person who is not a candidate, or the treasurer of a political committee, shall pay, give or lend or agree to pay, give or lend any money or other valuable thing, whether contributed by himself or by any other person, for any election expenses whatever, except to a candidate or to a political committee,” is the comprehensive language of the statute.

As one of the means adopted to compel obedience to the legislative requirement that even a candidate must confine the expenditure of money, contributed by himself or others, to the purposes specified as lawful, the act requires such candidate to “file (in case the office sought is a county office) with the clerk of the court of quarter sessions, a full, true and detailed account, subscribed and sworn or affirmed by him, setting forth each and every sum of money contributed, received or disbursed by him for election expenses, the date of each contribution, receipt and disbursement, the name of the person from whom received, or to whom paid and the object or purpose for which the same was disbursed. . . . Every such account shall be accompanied by vouchers for all sums expended exceeding ten dollars in amount.”

Manifestly the purpose of this enactment was to compel the candidate to place upon the public records such clear and detailed information, described in the foregoing language, as would enable the people to determine, after an inspection of his account with the accompanying vouchers, whether he had obeyed or violated the mandates of the law in which they were so vitally interested. But, considering the nature of the evil aimed at, had the legislature stopped here the alleged remedy would have scarce deserved the name. The act, however, further provides “for an audit of such account” by the court of quarter sessions. This important function of the court, so necessary to make effective the previous requirement that an account be filed, does not become operative until called into activity by the petition of five electors of the county praying for the audit. Thus the lawmaker seems to have recognized that truth, attested by the common experience of men, that the most potent factor in the steady enforcement of a law, is the existence, in the community affected, of a vigilant public .spirit demanding its enforcement.

When the account has thus been brought into court and the time and place of audit have been fixed, the act requires that the accountant appear in person “to vouch his account and answer, on oath or affirmation, all such relevant - questions concerning the same as may be put to him by the petitioners or their counsel. ... If, upon the audit, the court shall decide that the account was false in any substantial manner, or that any illegal expenses were incurred, the costs of said audit shall be paid by the accountant; but otherwise by the petitioners.”

It is manifest, therefore, that even an account which exhibits no illegal expenditure may be “false in a substantial manner” within the meaning of the act and thus require the imposition of the costs of the audit upon the accountant. In construing the expression quoted we are to keep before us the legislative declaration as to what shall constitute the account required. When, in legal phraseology, we speak of a true account, we have in mind one that fills up the measure, conforms to the standard and exhibits the attributes prescribed in the law which commands the filing of the account.

In the act now before us the legislative command is that the account shall be “full, true and detailed, ” and shall disclose the information specified in the language we have already quoted. In the narrowest sense of the word, an account might be true which was neither full nor detailed, which contained but a single item showing the payment of a large sum, in bulk, to some person, but which in no sense exhibited the information demanded by the law. True in fact as to what it actually did disclose, but untrue, false within the meaning of the act, in its failure to obey the mandate of the law, and account for that money in the manner and to the extent required by the lawmaker. It was because of the contemplated possibility that a candidate might neglect or refuse to file such an account as is required, that the legislature conferred upon the electors the right to have the account audited; and it was upon such failure or refusal, even when not resulting from an intent to deceive, that the act intended to operate, by imposing the costs on the accountant, because, in such case, there would be accomplished only by the audit what should have been effected by the mere filing of the account.

In the present appeal the accountant was a candidate for the office of judge of the courts of Schuylkill county. At the general election in November, 1907, he was duly declared elected, his commission issued, he took the oath and is now performing the duties and exercising the functions of his high office. After his account had been filed, a petition for an audit was presented to the court and the audit followed. It was personally conducted by two. judges of the county sitting together. They were familiar with local conditions, the general character of the people in the several sections of the county, and probably were personally acquainted with many of the witnesses. They saw and heard those who testified and have found the facts. While the act allows an appeal “from the decision of the court upon the audit,” we can see no good reason why we should not give to the findings of fact the same force and effect here, that would attach to similar findings by an auditing judge in the orphans’ court or a common pleas judge sitting in equity. Following this principle, and being unable to discover any manifest error or abuse of discretion on the part of the court below we must accept the facts as found.

But it has long been held that the rule referred to is to be confined, in its application, to pure questions of fact; it cannot and should not, for reasons often stated, affect the action of the appellate court as to the inferences to be drawn from established facts or to mixed conclusions of law and fact.

Without attempting to take up separately the assignments of error, we may say that several of them complain of the rulings of the court below in admitting or rejecting evidence against the objection of the petitioners. The learned court took pains to place on the record, in each instance, their reasons for the conclusion they reached. We find no reversible error in any of these rulings and, regarding them as being sufficiently vindicated in the record as now made, there-would be no advantage in attempting to further elaborate them. The fourth, fifth, sixth and seventh assignments are dismissed.

The eighth and ninth assignments complain of orders made by the court as to amendments. These were questions to be disposed of in the exercise of the sound discretion of the trial court. We cannot say that such discretion was abused, and the assignments must be dismissed.

The second item in the account as stated is as follows: “October 30, 1907, J. H. Nichter as per receipt $700.00.” The portions of the accompanying receipt to which we wish more particularly to refer are as follows: “Received of H. O. Bechtel the sum of seven hundred dollars . . . this money to be expended strictly in accordance with the Act of Assembly approved the 5th day of March, 1906, . •. . and it is expressly understood and agreed that no one person shall be paid a sum exceeding in amount the sum of ten dollars.”

It is conceded that Nichter was himself neither a candidate nor the treasurer of any political committee. It was impossible, therefore, that he could lawfully expend any money for “election expenses.” The third section of the act, hereinbefore quoted, flatly forbade his doing so. All that he was permitted to do with either his own money, or with money coming to him from any source, was to turn it over to a candidate or to some committee whose treasurer could lawfully expend it.

If, therefore, we regard the transaction evidenced by the receipt as an expenditure of $700 by Nichter, for election expenses, it would be difficult to avoid the conclusion that the candidate, who furnished money to be expended by one whom the act forbade to engage in that business, was himself responsible for an illegal expenditure. But we cannot so view it. The whole tenor of the receipt is to the effect that by the mere transfer of the money from the hand of the candidate to that of Nichter, no expenditure had yet occurred. By accepting the money, on the conditions fixed by the candidate, Nichter agreed that he would thereafter expend the money as directed. In other words, the expenditure that was to follow, whilst made by the hand of Nichter, was made by the will and under the direction of the candidate, and consequently was his act. Thus considered it was a lawful expenditure, provided it was confined to the legitimate subjects of expenditure named in the act.

But it is contended that although a candidate in person may lawfully expend money for proper purposes, he may not authorize another to act as his agent or representative in that behalf. We cannot accede to this contention. The Act of April 18, 1874, P. L. 64, legislating on the same general subject covered by the act of 1906, after declaring the purposes for which a candidate might lawfully expend money, provides: “The foregoing expenses may be incurred, either in person or through other individuals,” etc. We find nothing in the act of 1906 so inconsistent with or repugnant to this provision of the earlier act as to warrant us in saying the former repealed the latter.

Moreover, the act of 1906 applies to candidates for state as well as county offices. If a state candidate may lawfully expend money, in any number of widely scattered sections, for printing, for dissemination of information, payment of clerks, transportation of voters, etc., what sound reason can be urged for holding that he must go in person and put his money into the hands of the printer, liveryman, clerk, etc., but cannot permit another to act for him in doing so?

But if a candidate acts through or by another, it is still he that acts, and when he accounts he must account for all that he has done. Now the evidence taken at the audit and the findings of the court thereon establish that the expenditure made by the candidate through Nichter was, in fact, lawful. That should have appeared in his account. As it did not the audit was made necessary in order that the all-important fact might appear. We think, therefore, the account as filed furnished the warrant for the demand of the petitioners that it be audited, and as a consequence the learned court below was wrong in imposing the costs on them. All that we have said of the second item of the account is equally true of the first where the transaction was substantially the same, differing only in amount. All of the assignments of error save the first are dismissed. The first assignment must be sustained to the extent that the petitioners be relieved of the payment of the costs and that the same be imposed on the accountant.

It is ordered that so much of the decree entered by the court below as declares that the account is not false in. any manner and that the costs be paid by the petitioners be reversed and set aside and that the court below then direct that the costs of the proceedings be paid by the accountant. The costs of this appeal to be paid by the appellee.


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Kimelewski, Appellant, v. Commonwealth.

      Sale — Delivery of possession — Fraud.
    1. Delivery of possession is indispensable to transfer a title to chattels by the act of the owner that shall be valid against creditors.
    2. A licensed saloonkeeper occupied with his family the portion of the licensed premises not used for saloon purposes. He sold to a man who was about to marry his daughter, the household goods, the bar and bar fixtures and appliances. After the marriage the son-in-law went to live with his wife’s father, but continued in another business in which he was engaged before he was married. The father continued to conduct the saloon with his name on the window with no change in the lease or in the conduct of the saloon, or of the household affairs for two or three months. .An execution was issued on a judgment against the father, and the chattels in the licensed premises were levied upon. Subsequently the license was transferred to the son-in-law, and he took charge of the saloon. Held, that there was no such delivery of possession, as would make the alleged sale valid as against the creditors of the vendor.

      Appeals — Record—Presumption of regularity.

    3. Where error does not appear upon the record or it cannot be determined from the record whether error existed or not the appellate court will not reverse but will presume that everything was regular in the court below.
    Argued March 2, 1909.
    Appeal, No. 7, Jan. T., 1909, by plaintiff, from judgment of C. P. Luzerne Co., Feb. T., 1907, No. 498, on verdict for defendant in case of Kimelewski v. Commonwealth, at the instance of Wilkes-Barre Law & Library Association.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Feigned issue on sheriff’s interpleader. Before Lynch, P. J.
    The facts appear by the opinion of the Superior Court.
    Verdict and judgment for defendant, Plaintiff appealed,

      April 19, 1909:

      Errors assigned were in giving binding instructions for the defendant.

      M. J. Mulhall, for appellant. —
    Where the vendor and vendee are members of the same family, and the property consists of chattels used in, or in connection with, their common home, the vendee is not bound to turn the vendor out of doors in order to separate him from his property; a constructive delivery is sufficient: Huffman v. McIlvaine, 13 Pa. Superior Ct. 108; Kendig v. Binkley, 10 Pa. Superior Ct. 463; Evans v. Scott, 89 Pa. 136; Crawford v. Davis, 99 Pa. 576; Ziegler v. Handrick, 106 Pa. 87; McClure v. Forney, 107 Pa. 414; Rennington v. Spatz, 128 Pa. 524; Goddard, Hill & Co. v. Weil & Co., 165 Pa. 419; McCullough v. Willey, 200 Pa. 168.

      G. J. Clark, for appellee,
    cited: Kendig v. Binkley, 10 Pa. Superior Ct. 463; Bartlick v. Josenhans, 29 Pa. Superior Ct. 227; Barlow v. Fox, 203 Pa. 114; White v. Gunn, 205 Pa. 229.
   Opinion by

Rice, P. J.,

John Snesker for ten years conducted a restaurant in the building owned by John Becker. In 1906 the license was issued to Becker, but Snesker remained in possession as tenant and conducted the business, so it is claimed, as Becker’s manager. He and his family, consisting of his-wife and daughter, occupied such part of the building as was not used for saloon purposes as a residence. It is alleged that on August 25, 1906, Snesker sold to the plaintiff, who was about to marry his daughter, all of the household goods, the bar and bar fixtures and appliances and barroom furniture for the sum of $100. At this time the plaintiff was in the insurance business and lived on another street. In the following month he married Snesker’s daughter, and on September 8 or 9, upon returning from their wedding trip, they took up their residence with Snesker, bringing with them some furniture they had bought in New York. The plaintiff continued in his former employment and Snesker continued to conduct the saloon. The latter had a house servant whom he retained, and so far as appears no change was made in the conduct of the household affairs except that the plaintiff ordered provisions in the name of Snesker which his, the plaintiff’s, wife paid for. Snesker’s name appeared on the window of the saloon, but no'change was made in the lease or in the conduct of the saloon or of the household affairs, except as above stated, until October 29, 1906, when the license was transferred to the plaintiff and he took charge of the saloon. In the meantime action had been brought and judgment obtained against Snesker upon a forfeited recognizance, which he had entered into prior to the alleged sale, and execution had been issued and levy made (about October 15, 1906) upon the property in dispute.

There has been no deviation from the general rule that delivery of possession is indispensable to transfer a title to chattels by the act of the owner that shall be valid against creditors: Barlow v. Fox, 203 Pa. 114. It is nevertheless true that in the later cases the rigor of the rule laid down in the earlier cases as to what will be a sufficient delivery, and as to what evidence will be sufficient to carry that question to the jury, has been relaxed. In one of the latest cases on the subject the rule was thus stated by Mr. Justice Brown: “When a purchase is made in good faith, the fair and honest purpose of the vendor and vendee will not be defeated, if the conduct of the parties shows that there was an intention to transfer the possession as well as the title and the vendee assumes such control of the property as ought reasonably to indicate a change of ownership:” White v. Gunn, 205 Pa. 229. Applying this principle to the evidence adduced by the plaintiff relative to the goods which he claimed to have bought from John Snesker, we are of opinion that a finding by the jury that there was such assumption of control of the property by the vendee as ought reasonably to indicate a change of ownership would be wholly unsupported. This being so, it was the province of the court to declare as matter of law that there was no such delivery of possession as would make the alleged sale valid as against the creditors of the vendor: Hastings v. Sproul, 10 Pa. Superior Ct. 82.

Of course, if it appeared that the furniture bought by the plaintiff in New York was included in the levy and in the issue being tried,.binding instructions in favor of the defendant as to such goods would not have been warranted. But owing to the loss of the files from the office of the prothonotary of the common pleas, the appellant was unable to bring up with the record and print in his paper-book the sheriff’s petition or the appraisement or the pleadings. Nor is the evidence they would furnish as to the property levied upon and in controversy in this suit supplied otherwise. It is therefore impossible for us to ascertain whether any of the furniture of plaintiff bought in New York was levied upon. Under the circumstances, we are compelled to presume that the court in entering judgment for $10.00 less than the amount of the verdict, that being the appraised value of the sideboard the plaintiff testified he bought in New York, entered judgment for the appraised value of such property only as the plaintiff alleged he bought of Snesker. It is an elementary principle that where error does not appear upon the record or it cannot be determined from the record whether error existed or not the appellate court will not reverse but will presume that everything was regular in the court below.

The judgment is affirmed.


author: Per Curiam,

text:
    Devlin’s Case
    (No. 1).

      Public officers — Township auditors — Tax collector’s account — Issue— Exceptions — Appeals—Quashing appeal.

    1. On an appeal of a taxpayer from the audit of an account of a tax collector, an issue to determine disputed questions of fact will not be allowed if all the questions raised by the petition and answer are determinable by an inspection of the auditor’s report appealed from.
    2. On an appeal from an order surcharging a township tax collector on proceedings on an appeal from report of auditor’s, a general exception to the findings of fact and to the decree of the court below is not sufficient to bring the whole case up for review upon the evidence.
    Argued March 2, 1909.
    'Appeal, No. 22, March T., 1909, by John L. Devlin, from order of C. P. Luzerne Co., Dec. T., 1905, No. 136, surcharging tax collector in the Matter of John L. Devlin’s Accounts.
    Before Bice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Appeal quashed.
    Appeal from report of township auditor on the accounts of John L. Devlin, tax collector.
    Ferris, J., filed the following opinion:
    The petition upon which this rule was granted contains the following averments:
    1. That the auditors of the township of Plains filed their report of the audit, settlement and adjustment of the accounts of John L. Devlin, tax collector of said township, with the school district of said township, for the year beginning June 6, 1904, in the court of quarter sessions of Luzerne county and that the petitioner, Irvin D. Hague, on behalf of the school district, has appealed therefrom.
    2. That in said report it appears that the total amount of school taxes collected by the accountant for that year was $21,913.
    3. That of this sum $18,000 were collected within sixty days from the date of public notice by him of the delivery to him of the school tax duplicate for that year, and that the balance, viz.: $3,913 represents the amount collected after the expiration of that period.
    4. That under the law the tax collector was entitled to a commission of two per cent upon said sum of $18,000, viz.: $360, and five per cent upon said sum of $3,913, viz.: $195.65, making in all $555.65.
    5. That it appears from the auditor’s report that the tax collector has been allowed as commissions the sum of $1,001.66, instead of $555.65, or $446.01 more than he was legally entitled to.
    Upon this petition the present rule was granted. The tax collector, Devlin, afterwards filed an answer alleging:
    1. That the appellant, Hague, was without standing in that he was not a taxpayer of the township.
    2. That the petition is sworn to by George J. Hartman without any 'reason being given why it should not have been verified by the affidavit of the petitioner himself.

      3. That the facts averred in the first paragraph of the petition are true, but
    4. Denying the truth of the allegations contained in the second, third, fourth and fifth paragraphs of the petition.
    From the depositions taken we are satisfied that the appellant was a taxpayer of the district, and was by law authorized to take the appeal in this case; also that the objection to the granting of the rule upon a petition verified by the affidavit of a third party is not well taken, for the reason that, since the grounds of the application appear of record, no affidavit at all was required under our court rule on the subject.
    There is no necessity for an issue to determine disputed questions of fact, since all such questions which are raised by the petition and answer are determinable by an inspection of the auditor’s report appealed from.
    In the tax collector’s account, which the auditor has stated to be correct, he charges himself with the amount of his school tax duplicate for 1904 as being $25,667.27, and takes credit as follows:
    Amount of Rebates..............$ 900 00
    Land Returns................... 312 87
    Exonerations and Abatements.... 1,539 74
    Amount Paid to Treasurer........ 21,913 00
    Collector’s Commissions......... 1,001 66 $25,667 27
    The testimony of the accountant is to the effect that the original school tax duplicate was incorrect as at first delivered to him, and that upon his calling the attention of school board to that fact, he was authorized to and did make up a new duplicate which he afterwards burned, and that he was unable to remember at the time he testified what its amount had been. Some other evidence was produced tending to show that the amount of the duplicate ought to have been not less, but more than that stated in the account. He is not chargeable, however, with the amount it should have shown, but with the amount it did show. The evidence does not justify the conclusion that the duplicate was for any different total sum than that set forth in his account, as approved by the auditors. The correctness of the other items is not questioned except the credit item of $1,001.66 for “Collector’s Commissions.”
    That the collector is not entitled to that sum is apparent from the account itself as embodied in the auditor’s report. The law entitles him to commissions at thé rate of five per centum on taxes afterwards collected: Act of June 2, 1891, P. L. 175. His account shows the total amount of the five per centum abatement (called “rebates” in the account) to be $900 which is five per centum of $18,000. Upon this latter sum he would be entitled to retain a commission of two per centum. The statute just cited makes it his duty to pay over to the proper treasurer all the taxes collected, after deducting his legal commissions. His account shows that he paid over the sum of $21,913, and deducted as commissions $1,001.66. The total of these two sums, therefore, represents the total amount of school taxes collected, viz.......:......$22,914 66
    Deduct the taxes subject to the five per centum
    abatement................................... 18,000 00
    And we have..................................$ 4,914 66
    on which he would be entitled to retain commissions at the rate of five per centum. The account shows that he retained $1,001.66.
    He was entitled to two per centum on
    $18,000.00, or........................ $360 00
    and five per centum on $4,914.66, or...... 345 73 $605 73
    which leaves................................... $395 93
    as the amount he deducted as commissions in excess of what the law allowed him, and which he owed to the school district of the township of Plains at the end of the school year.
    The rule is therefore amended so as to be a rule to show cause why the account of John L. Devlin, as collector of the school taxes of the school district of the township of Plains for the year beginning June 6,1904, as stated in the report of the audit and settlement thereof filed in the court of quarter sessions of Luzerne county in No. 727, September sessions, 1905, should not be reformed, and why he should not be surcharged with the sum of $395.93, with interest thereon from June 5, 1905, and why judgment should not be entered against him therefor in favor of the school district of the township of Plains; and as so amended the rule is made absolute and judgment is entered accordingly.
    April 19, 1909:

      Errors assigned were in the following form:
    It is respectfully submitted that the court below erred in the following particulars:
    1. In finding that the word “rebates” might be read the same as if it appeared as “abatements.”
    2. The court erred in not awarding an issue.
    3. The court erred in entering judgment.
    4. The court erred in finding that Irvin D. Hague was a taxpayer of Plains township.

      M. II. McAniff, for appellant.

      John D. Farnham, for appellee.
   Per Curiam,

We think the learned judge below was right in holding that there was no necessity for an issue to determine disputed questions of fact, since all such questions which were raised by petition and answer were determinable by an inspection of the auditor’s report appealed from. We think also he was right in his interpretation of the word “rebates” as used in the auditor’s report, and that no jury or evidence was necessary to determine what was meant thereby. These conclusions are so well sustained by his opinion that we need not discuss the merits of the case further.

But apart from them the appeal must be quashed for the reasons set forth in appellee’s motion. The sole exceptions to the decree of the court and the order noting them are in these words: “Now, June 8, 1908, the respondent, John L. Devlin, respectfully excepts to the findings of fact in the decree this day entered, and also to the decree of the court, and thereupon exceptions noted and bill sealed for exceptant.”

In Dunmore Borough School District v. Wahlers, 28 Pa. Superior Ct. 35, we held that the proper practice under the Act of May 11, 1901, P. L. 185, is similar to that under the act of 1868, authorizing writs of error to the judgments of the courts of quarter sessions on appeals from orders of removal, and that a general exception to the opinion or decree is not sufficient to bring the whole case up for review upon the evidence. The practice under the latter act is more fully considered in the recent ease of Mifflin Twp. Poor District v. Schuylkill County Poor District, 37 Pa. Superior Ct., 611, and we are of opinion that the rules there suggested are applicable here.

The appeal is quashed.


text:
    Devlin’s Case
    (No. 2).
    April 19, 1909:
   Per Curiam,

This case is substantially like the preceding case, excepting that it relates to the account of the appellant for the succeeding year. For the reason there given the appeal is quashed.


text:
    Mulherin v. Roach.

      Mortgage — Scire facias — Judgment against terre-tenant — Appeals—Acts of July 9, 1901, P. L. 614, and April 3, 1903, P. L. 139.
    A judgment against a terre-tenant for want of an appearance on a scire facias sur mortgage, will not be opened on appeal where the record shows that it was entered after two returns of nihil, and there is nothing in the way of evidence on the record to show that the lower court erred in refusing to open judgment.
    Argued March 2, 1909.
    Appeal, No. 27, March T., 1909, by John Luton, from order of C. P. Luzerne Co., March T., 1903, No. 186, discharging rule to open judgment in case of Mulherin and Judge v. Ann Roach and Barr.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.

      April 19,1909:
    Rule to open judgment.
    The opinion of the Superior Court states the case.

      Error assigned was rule to open judgment.

      W. H. Hines, for appellant.

      John B. Jordan, with him Joseph H. Finn and Edward A. Lynch, for appellees.
   Per Curiam,

As no depositions were taken to support the allegations of fact in the appellant’s petition, and as it does not appear that they were admitted by the appellee or that proof of them was dispensed with, we have nothing before us whereby to determine whether or not the court committed error in discharging the rule to open the judgment but the record brought up by the certiorari. From this we ascertain that, within five years after the rendition of judgment in favor of the plaintiffs against Mrs. Roach, the plaintiffs issued a scire facias which was duly returned served upon her and nihil habet as to John Luton, terretenant; that this was followed by an alias which likewise was returned nihil habet as to him; and that in due course, judgment was entered against her for want of an affidavit of defense, and against John Luton, terre-tenant for want of an appearance. This application of John Luton to open the judgment was made nearly five years afterwards. As was said in Compher v. Anewalt, 2 Watts, 490, so here, the only question is, whether the judgment in the scire facias is erroneous; and it clearly is not so on its face, having been entered after two returns of nihil, which, by long-established practice, warrant a judgment. This practice was not disturbed, but was distinctly recognized and continued in the Act of July 9, 1901, P. L. 614, and its amendment of April 3, 1903, P. L. 139. This being the only question before us, we will not discuss those that may possibly arise in a possible future action of ejectment by a sheriff’s vendee, or might have arisen if the appellant had adduced proof in the court below of the facts outside the record alleged in his petition.

The order is affirmed at the costs of the appellant


text:
    Scranton v. Koehler, Appellant.
    April 19, 1909:

      Res adjudicatei — Scire facias sur mortgage — Validity of writ.

    Where on an appeal from a judgment on a verdict for the plaintiff on a scire facias sur mortgage, the validity of the writ is upheld, the question of the validity of the writ is res adjudicata, and cannot be opened again on a rule to strike off the judgment.
    Argued March 4, 1909.
    Appeal, No. 43, March T., 1909, by defendant, from order of C. P. Lackawanna Co., May T., 1903, No. 723, discharging rule to strike off judgment in case of City of Scranton v. Robert P. Koehler.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to strike off judgment.
    The opinion of the Superior Court and former report in 36 Pa. Superior Ct. 95, states the case.

      Error assigned was order discharging rule to strike off judgment.

      Thomas P. Duffy, for appellant.

      H. R. Van Deusen, assistant city solicitor, with him David J. Davis, city solicitor, for appellee.
   Per Curiam,

This is an appeal from an order discharging the defendant’s rule to strike off a judgment of the common pleas which was affirmed by the court on appeal. It will be seen by a perusal of the opinion of our Brother Henderson on that appeal, Scranton v. Koehler, 36 Pa. Superior Ct. 95, and the opinion of the learned judge of the common pleas discharging the rule, that the question sought to be raised is res judicata so far as these parties are concerned.

The order is affirmed at the costs of the appellant.


author: Pice, P. J.,

text:
    Fell Township Polling Place.
    April 19, 1909;

      Election law — Constitutional law — Polling place — Act of May 18, 1876, P. L. 178.
    The power conferred upon the court of quarter sessions to form election districts by art. VIII, sec. 11 of the constitution cannot be abridged by the legislature, and the Act of May 18, 1876, P. L. 178, relating to the procedure in such matters, is not binding upon the court; nor can the court delegate its constitutional power; but if it chooses to adopt the method provided by the act of 1876 to obtain the information necessary to enable it to act, and enter a decree in a proper exercise of its discretion, such decree will not be reversed by the appellate court.
    Argued March 4, 1909.
    Appeal, No. 69, March T., 1909, by John Dolan, from order of Q. S. Lackawanna Co., Dec. T., 1907, No. 207, dividing election district In re Erection of Polling Place in Fell Township.
    Before Pice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition for appointment of commissioners to divide election district. Before Edwards, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was the order dismissing exceptions and confirming report of commissioners.

      J. E. Sickler, for appellant.

      H. W. Mumford, for appellee.
   Opinion by

Pice, P. J.,

It was decided In re Bern Twp., 115 Pa. 615, that inasmuch as art. VIII, sec. 11, of the constitution declares that townships and wards of cities or boroughs shall form or be divided into election districts of compact and contiguous territory, “ in such manner as the court of quarter sessions of the city or county in which the same are located may direct,” it lies not within legislative discretion to abridge or take that power from the court. Whilst the clause of the act of 1876, that is particularly animadverted on in the opinion is that which commands the quarter sessions to confirm the report of the commissioners unless exceptions be filed within a certain time, yet viewing the decision in the light of the proceedings in the quarter sessions that were affirmed, it clearly implies that the court’s power to regulate the procedure, as well as its power to form or divide election districts, is derived directly from the constitution, and that in the exercise of the latter power the court is not required to adopt any part of the procedure of the Act of May 18, 1876, P. L. 178. This was the view taken by us in Waynesburg Borough’s North Ward, 29 Pa. Superior Ct. 525. It logically follows that the quarter sessions cannot delegate its constitutional power, or bind itself by rule of court or otherwise, to abide by the discretion of others in this matter. But such delegation of power and surrender of its discretion are not to be implied from the mere fact that the court proceeds in the statutory mode to obtain the information necessary for it to have in order to exercise its discretionary power properly. But let it be assumed, for the sake of argument only, that the appointment of commissioners to inquire into the propriety of creating the election district prayed for, to make a plot of the proposed new election district, if the same could not be fully designated by natural lines or boundaries, and to make a report together with their opinion of the same, was in excess of the power of the court to regulate the procedure, it by no means follows that the decree is invalid. All that is brought up on this appeal is the record, and all it shows is the petition, the appointment of commissioners for the purpose above stated, the report of the commissioners, the confirmation nisi, the exceptions thereto, the appointment of a commissioner to take depositions, the filing of depositions, and a petition for review which appears not to have been granted. Then comes the decree which recites the presentation of the petition, and states that it appeared to the court, “that such division as prayed for in said petition would be beneficial.” It is thus seen that there is nothing on the record to show affirmatively, or to warrant inference or even surmise, that the court did not exercise the discretion committed to it by the constitution; presumably the court did its duty.

The order is affirmed at the costs of the appellant.


text:
    Lister v. Pennsylvania Telephone Company, Appellant.
    April 19, 1909:

      Appeals — Record—Certificate as to charge and evidence.

    1. It is the duty of an appellant to see that the notes of testimony and the charge of the court are certified as required by rule VI, and if he fails to see that this is done, thereby delaying the hearing of the appeal, and fails to offer any valid excuse for his neglect, he will be nonsuited when the case is called for hearing in the appellate court.
    2. A loose paper not attached to the stenographer’s report of the tes-, timony and the charge, and presented to the appellate court when the case is called for hearing, will not be considered by the appellate court as a proper certificate under rule VI.
    Argued March 8, 1909.
    Appeal, No. 216, Oct. T., 1907, b.y defendant, from judgment of C. P. Blair Co., Oct. T., 1905, No. 110, on verdict for plaintiff in case of Robert McKinley Lister, by his father and next friend, Francis O. Lister, v. Pennsylvania Telephone Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Ap-' pellant nonsuited.
    Motion for nonsuit.
    The opinion of the Superior Court states the case.

      J. D. Hicks and D. J. Neff, for appellant.

      William S. Hammond, for appellee.
   Opinion by

Rice, P. J.,

We have considered the questions sought to be raised by the assignments of error, and the oral and printed arguments of counsel relating to them, and are not convinced that any reversible error was committed. We will add to this expression of opinion upon the merits of the appeal no discussion of them, because we deem it our duty to sustain the appellee’s motion for nonsuit. Judgment was entered in the court below on November 4, 1907, and on November 25', the court made an order directing the stenographer to transcribe the notes of testimony and charge of the court. The defendant took this appeal in the same month, and although nearly a year elapsed before it came up for argument, the notes of testimony and the charge of the court had not been transcribed, and consequently the appellant’s paper-book had not been prepared. We doubted ■ then, and still do, whether sufficient excuse for the omission to have this done was shown; nevertheless, appellee’s counsel finally consenting, we continued the case to the March Term at Harrisburg. When it was called for argument on March 8, 1909, the appellee’s counsel moved for a nonsuit, upon the ground, inter alia, that the notes of testimony and charge of the court were not certified as required by rule VI. This was the fact, although the transcript of the charge was filed on January 19, 1909, and the transcript of the notes of testimony was filed on February 9, following, and no valid excuse for noncompliance with the rule was shown. We remark in passing that it is as much the duty of the appellant to see that this is done as it was the duty of the plaintiff in error at common law to have a bill of the exceptions which were allowed on the trial, signed and sealed by the judge. On March 9, the motion for nonsuit being under consideration by the court, the appellant presented the following certificate of the trial judge, which we permitted to be filed without deciding as to its effect: “Now Mch. 8th, 1909. The notes of testimony with the exceptions taken by counsel during the trial, to the rejection or admission thereof, and the charge with exceptions thereto, have been examined by me and are hereby approved, and were ordered to be filed February 9th, 1909.” The filing of this paper furnished no valid answer to the appellee’s motion, for two reasons: first, it was not such an authentication as the rule of court requires, Farley v. Altoona, etc., Ry. Co., 32 Pa. Superior Ct. 413; second, the appellee was entitled, particularly in view of the long delay in bringing the appeal to a hearing and of the absence of a valid excuse for noncompliance with the rule, to have his motion disposed of on the record as it appeared when the case came up for argument.

The appellee’s motion is allowed and nonsuit is entered against the appellant.


author: Morrison, J., Rice, P. J.,

text:
    Long’s Estate.

      Wills — Vested and contingent estates — Construction—Children.
    1. In cases of doubtful construction the law leans in favor of an absolute, rather than a defeasible estate; of a vested, rather than a contingent one; of the primary, rather than the secondary intent; of the first, rather than the second taker, as the principal object of the testator’s bounty; and of a distribution as nearly conformed to the general rules of inheritance as possible.
    2. The question of vested or contingent is not to be tested by the certainty or uncertainty of obtaining the actual enjoyment; for that would make the character of the estate depend, not upon the terms of its creation, but on the form of the result. Neither does it depend upon the defeasibility or indefeasibility of the right of possession; for many estates are vested without possession, as well as with, which are yet defeasible. If there is a present right to a future possession, though that right may be defeated by some future event, contingent or certain, there is nevertheless a vested estate. An unpossessed estate is vested, if it is certain to take effect in possession, by enduring longer than the precedent estate.
    3. In Pennsylvania a person sui juris owning a contingent interest in land or in personal property, may sell the same to one who does not stand towards him in a trust relation and who does not impose upon him, for any sum agreed upon between them.
    4. It is the well established rule of construction in this state, as well as elsewhere, that the word “ children ” in a will does not include grandchildren, unless it appears from the context to have been so intended by the testator, or such meaning is necessary to carry out his manifest intent.
    5. Testator gave all the residue of his estate, real and personal, to a trustee in trust for the period of twenty years with large and ample powers in the trustee to manage, invest and reinvest the same. He also directed as follows: “ I further provide and direct that when there is a greater accumulation than he deems necessary for the purposes of this trust he shall divide the same into six equal shares, paying one share to each of my five children and one share to be divided amongst the children of my deceased son. And if any of my children should die without leaving lineal descendants before the expiration of twenty years after my decease, then such share shall go to the other legatees share and share alike — parties taking per stirpes and not per capita. At the termination of twenty years the said trustee shall sell said real and personal property and divide the same in six shares to be distributed as is provided with reference to income of same.” Held, (1) that the residuary estate went to the person interested, as personalty; (2) that all the legacies were vested; (3) that the legacies to the “children” of the testator were subject to be divested by death within twenty years without leaving lineal descendants, and (4) that the legacies to the children of the deceased son were vested absolutely and unconditionally and that the administrator of a deceased daughter of the deceased son was entitled to share in a distribution of income.
    Argued March 8, 1909.
    Appeal, No. 18, March T., 1909, by C. Vernon Rettew, Administrator of the Estate of Florence R. Rettew, deceased, from decree of O. C. Cumberland Co., sustaining exceptions to report of auditor in Estate of Christian Long, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Exceptions to report of J. M. Rhey, Esq., auditor.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was decree sustaining exceptions to report of auditor.

      M. W. Jacobs, with him Charles C. Strok, for appellant. — •
    The will of Christian Long directs the executor “at the termination of twenty years” to sell the real and personal property and divide the proceeds among the beneficiaries named in the will. This direction to sell works a conversion, notwithstanding the fact that the sale is postponed: Leiper v. Thompson, 60 Pa. 177; McWilliams’s App., 117 Pa. 111; Roland v. Miller, 100 Pa. 47; Mellon v. Reed, 123 Pa. 1; Bright’s App., 100 Pa. 602; Thomman’s App., 161 Pa. 444; McClure’s App., 72 Pa. 414.
    The interest of Florence R. Rettew ivas vested: Smith’s App., 23 Pa. 9; Fitzwater’s App., 94 Pa. 141; Manderson v. Lukens, 23 Pa. 31; Letchworth’s App., 30 Pa. 175; Ryon’s App., 124 Pa. 528; Jackson’s Est., 179 Pa. 77; Wengerd’s Est., 143 Pa. 615; Fulton v. Fulton, 2 Grant, 28; Carstensen’s Est., 196 Pa. 325.
    The legacy is vested because present beneficial enjoyment is given: Schriver v. Cobeau, 4 Watts, 130; Roberts’s App., 59 Pa. 70; Little’s App., 117 Pa. 14; Reed’s App., 118 Pa. 215; Provenchere’s App., 67 Pa. 463; Middleton’s Est., 212 Pa. 119; Schwartz’s App., 119 Pa. 337; Safe Deposit and Trust Company v. Wood, 201 Pa. 420; Peterson’s App., 88 Pa. 397.
    Legacy is vested because postponement of payment of principal is for the benefit of the estate: McClure’s App., 72 Pa. 414.
    Mrs. Rettew’s interest was not divested by her death: McCall’s App., 86 Pa. 254; Fell’s Est., 6 Pa. Superior Ct. 192.
    “My children” does not include grandchildren: Hallowell v. Phipps, 2 Whart. 376; Hunt’s Est., 133 Pa. 260; Castner’s App., 88 Pa. 478; Steinmetz’s Est., 194 Pa. 611; Horwitz v. Norris, 49 Pa. 213.

      S. B. Sadler, for appellee. —
    In this case there was a direction to sell merely for the purpose of distribution at the end of twenty years. Such a provision does not change the course of inheritance: Painter v. Painter, 220 Pa. 82; Henszey’s Est., 220 Pa. 212; Glentworth’s Est., 221 Pa. 329; Handley’s Est., 181 Pa. 339.
    The estate was contingent: McClellan’s Est., 221 Pa. 261; McClure’s Est., 221 Pa. 556; Handy’s Est., 182 Pa. 68; Khowle’s Est., 208 Pa. 219; Barger’s App., 100 Pa. 239; Rowland’s Est., 141 Pa. 553; Raleigh’s Est., 206 Pa. 451; Lewis’s Est., 203 Pa. 219; Craige’s App., 126 Pa. 223; Reilly’s Est., 200 Pa. 288; McGlensey’s Est., 37 Pa. Superior Ct. 514; Scott’s Est., 37 Pa. Superior Ct. 342; Shelmerdine’s Est., 16 Pa. Dist. Rep. 222; Tyson’s Est., 191 Pa. 218.
    If time is annexed to the gift (as distinguished from the payment) or if time is annexed to the payment (there being no gift other than that involved in the direction to pay), the gift is contingent: Seibert’s App., 13 Pa. 501; Reed v. Buckley, 5 W. & S. 517; Provenchere’s App., 67 Pa. 463; Allen’s Est., 192 Pa. 170; Raleigh’s Est., 206 Pa. 451; Reed’s App., 118 Pa. 215; Safe Dep., etc., Co. v. Wood, 201 Pa. 420; Schriver v. Cobeau, 4 Watts, 130; McClure’s App., 72 Pa. 414.
    ■ There is no dispute with the legal proposition that the use of the word “children” will not ordinarily include grandchildren. But this rule of construction is subject to the qualifieation that the word shall have such meaning if the will as a whole shows such to have been the intention of the testator: Campbell’s Est., 202 Pa. 459; McGlensey’s Est., 37 Pa. Superior Ct. 514; Scott’s Est., 37 Pa. Superior Ct. 342.
    April 19, 1909:
   , Opinion by

Morrison, J.,

Christian Long died January 16,1892, leaving to survive him, one son and four daughters, and, among other grandchildren, four who were children of a deceased son, Ira L. Long. His estate was large, consisting of both real and personal property. His will, in seventeen items, bears evidence upon its face of having been drawn by one who was an expert in legal expression, makes careful and elaborate provision for each of his children and for the children of his deceased son, varying in quantity and in form, sometimes giving directly and at others in trust, sometimes in fee and at others for life, but in the main setting apart a portion of his estate in the form of life trusts for his children and the children of his deceased son, with remainders over to their respective children. After making these particular provisions, the testator disposed of the residue of his estate— sufficiently large in 1907 to produce a net annual income of over $18,000 — by creating a trust to last for twenty years as shown by item fourteen of his will which reads as follows:

“Item. All the rest and residue of my estate, real, personal and mixed, I give, devise and bequeath to J. L. Barner, in trust, for the period of twenty years — during which period he shall manage the same as he conceives for the best interest of all concerned in the same. He shall have full power to lease or sell the same, to make the necessary contracts, agreements and conveyances. He may purchase any parcels of land which he may deem necessary in order to secure debts due to my estate at either private or public sale, or when the same is sold under judicial proceedings. He is hereby given full powerto improve my realty by using the income of the residuary estate to improve the same by erecting buildings thereon, to repair buildings or to fertilize or otherwise do what he may deem desirable, as well as to pay taxes, insurances, etc. When any sales of real or personal property are made he may reinvest the proceeds in realty or personalty. I further provide and direct that when there is a greater accumulation than he deems necessary for the purposes of this trust he shall divide the same into six equal shares, paying one share to each of my five children and one share to be divided amongst the children of my deceased son, Ira L. Long. And if any of my children should die without leaving lineal descendants before the expiration of twenty years after my decease, then such share shall go to the other legatees share and share alike — parties taking per stirpes and not per capita.

“At the termination of twenty years the said J. L. Barner shall sell said real and personal property and divide the same in six shares to be distributed as is provided with reference to income of same.”

It is upon the construction of this residuary clause that the present case turns.

One of the children of Ira L. Long, Florence R. Rettew, died August 28, 1907, intestate, leaving to survive her no children, but a husband, C. Vernon Rettew, the appellant here, to whom letters of administration were granted on her estate. On January 31, 1908, the executor and trustee filed his fourteenth partial account of his several trusts, showing in his hands an undistributed accumulation of the income of the residuary estate of $18,265.30. Of this amount the children of Ira L. Long were entitled to one-sixth, or $3,044.21, which an auditor was appointed to distribute. Before the auditor the three surviving children of Ira L. Long claimed the entire fund for distribution, contending that the legacy to Florence R. Rettew in the residuary clause of the will was contingent, or, if vested, was divested by her death, and that the income of the residuary estate was not apportionable between them and Mrs. Rettew’s administrator. The latter claimed one-fourth of the fund going to Ira L. Long’s children, upon the ground that the legacy was vested in Mrs. Rettew during her lifetime, to wit: at the death of the testator, and was not divested by her death. The learned auditor, in an exhaustive and careful opinion, sustained the latter contention and submitted a table of distribution accordingly. Upon exceptions filed by the three surviving children of Ira L. Long, the court held that Mrs. Rettew’s legacy was contingent, but that, so far as the fund was income from the rents of real estate and interest on mortgages and other loans, it was apportionable between the life tenant and the remainder-men in the proportion of seven to five, Mrs. Rettew having lived about seven months out of the twelve covered by the account. From this decree of the court below Mrs. Rettew’s administrator appeals.

The learned court below having reached the conclusion that Mrs. Rettew’s legacy was contingent, held that it was not material whether the last sentence but one in item fourteen of the will included the testator’s grandchildren or not. But the learned court expressed the opinion that the language of said sentence might embrace the testator’s grandchildren. We here quote it: “And if any of my children should die without leaving lineal descendants before the expiration of 20 years after my decease, then such share shall go to the other legatees share and share alike — parties taking per stirpes and not per capita.”

The learned counsel for the appellee, as if not having entire confidence in the position taken by the court that the legacies were contingent, argues earnestly that even if they were vested, the language above quoted embraced the grandchildren of testator, children of Ira L. Long, and, therefore, the death of Florence R. Rettew divested her legacy and it should be distributed to the surviving children of Ira L. Long. We will discuss this proposition further along.

1. In our opinion, the residuary estate goes to the persons interested as personalty. The will of Christian Long directs the executor “at the termination of 20 years” to sell the real and personal property and divide the proceeds among the beneficiaries named in the will. The direction to sell works as conversion, notwithstanding the fact that the sale is postponed: Leiper v. Thompson & Castner, 60 Pa. 177; McClure’s Appeal, 72 Pa. 414; Roland v. Miller, 100 Pa. 47; Bright’s Appeal, 100 Pa. 602; McWilliams’s Appeal, 117 Pa. 111; Mellon v. Reed, 123 Pa. 1; Thomman’s Est., 161 Pa. 444. We, therefore, consider the residuary estate as personalty. Mrs. Rettew’s interest in it was a legacy and if C. Vernon Rettew has any interest in it or its income, he takes as administrator of the estate of his deceased wife.

2. Was the interest of Florence R. Rettew vested? In item fourteen we find: “ I further provide and direct that when there is a greater accumulation than he deems necessary for the purposes of this trust he shall divide the same into six equal shares, paying one share to each of my five children and one share to be divided amongst the children of my deceased son, Ira L. Long.” As to the principal, the will directs that it be sold at the end of twenty years and to be divided “in six shares, to be distributed as is provided with reference to the income of same.”

The controlling question then is, does this will, taken as a whole, give vested legacies to the children of Ira L. Long? In our opinion, the will gives vested legacies to the testator’s children and grandchildren provided for in the residuary clause. In order to hold that these legacies were contingent places upon the person so asserting the burden of establishing by fair and reasonable construction of the will that the legacies are contingent without doubt. To the writer it seems quite clear that these legacies were vested at the death of the testator, but to convict the court below of error, and to sustain the learned auditor, only requires us to conclude that the question is doubtful. The rule of law is that a legacy must be assumed to be vested unless the contrary intention of the testator clearly appears. In Smith’s App., 23 Pa. 9, our Supreme Court said: In cases of doubtful construction the law leans in favor of an absolute, rather than a defeasible estate; of a vested, rather than a contingent one; of the primary, rather than the secondary intent; of the first, rather than the second taker, as the principal object of the testator’s bounty; and of a distribution as nearly conformed to the general rules of inheritance as possible.”

In Manderson v. Lukens, 23 Pa. 31, it is said: “The question of vested or contingent is not to be tested by the certainty or uncertainty of obtaining the actual enjoyment; for that would make the character of the estate depend, not upon the terms of its creation, but on the form of the result. Neither does it depend upon the defeasibility or indefeasibility of the right of possession ; for many estates are vested without possession, as well as with, which are yet defeasible. If there is a present right to a future possession, though that right may be defeated by some future event, contingent or certain, there is nevertheless a vested estate. An unpossessed estate is vested, if it is certain to take effect in possession, by enduring longer than the precedent estate.”

In Fitzwater’s Appeal, 94 Pa. 141, it is said (p. 146): “Where the intendment of the will is doubtful, the law leans in favor of an absolute estate; of the primary, rather than the secondary intent; of the first taker as the primary object of the testator’s bounty; and of a distribution conformable to the general rules of inheritance.”

In Letchworth’s Appeal, 30 Pa. 175, our Supreme Court, on page 179, said: “The law always and naturally inclines to attribute the real and substantial ownership of property to some existing person, even in the case of a trust and never to leave any part of it in abeyance. In other words, it always inclines to treat the whole interest as vested, and not as contingent; and therefore, in case of doubt or mere probability it declares the interest vested.” To the same effect is Ryon’s App., 124 Pa. 528. See also Jackson’s Est., 179 Pa. 77; Wengerd’s Est., 143 Pa. 615; Fulton v. Fulton, 2 Grant, 28; Carstensen’s Est., 196 Pa. 325.

In Menoher’s Est., 18 Pa. Superior Ct. 335, in an opinion by Rice, P. J., we said: “They are familiar principles that in the construction of wills, the law, in doubtful cases, leans in favor of a vested, rather than a contingent estate.”

In Thran v. Herzog, 12 Pa. Superior Ct. 551, Rice, P. J., in delivering the opinion of this court (p. 555), said: “In doubtful cases the courts favor that construction which, consistently with the words of the instrument, will give an absolute rather than a defeasible estate, a vested rather than a contingent one and which will result in a disposition in conformity to the general rules of inheritance, rather than one which will disinherit an heir-at-law.” We think the legacy is vested because present beneficial enjoyment is given. Time is annexed, not to the substance of the gift, but merely to the payment, and, while the gift of the legacy is in the form of direction to pay, the direction to pay to the legatees the income not needed for the purposes of the trust shows the intention of the testator that the beneficial enjoyment should begin at once and that payment only of the principal should be postponed. The legacy, therefore, vested from the time of the testator’s death.

In Schriver v. Cobeau, 4 Watts, 130, the provision in the will was: '' I give unto my nephew the interest arising from one share of 5% state stock; and when the principal is paid off by law, then I give the principal arising from such share.” Held, that this is an absolute bequest of the stock, which may be disposed of by the administrator of the legatee at any time.

In Roberts’s Appeal, 59 Pa. 70, it is held, prima facie, the gift of a product of a fund is the gift of the product in perpetuity, and consequently is a gift of the fund itself. Held further that the legacy to the nephew was vested and on his death, although under twenty-one, passed to his representatives. See also Little’s Appeal, 117 Pa. 14; Reed’s Appeal, 118 Pa. 215.

Where “A testator provided that his executors should keep the proceeds of land sold invested at interest and pay over to each of his nine grandchildren one-ninth of the interest thereof annually, 'or if any of them have died, leaving heirs, then pay the same to said heirs, and at the full expiration of twelve years from the time of my decease, shall in like manner pay over the principal; but neither interest nor principal shall be liable to attachment:’ Held, that the legacies to grandchildren were substantive gifts with time of payment postponed but certain and unconditional, and, therefore, vested at the death of the testator.” See also Provenchere’s App., 67 Pa. 463; Middleton’s Est., 212 Pa. 119; Schwartz’s App., 119 Pa. 337; Safe Deposit & Trust Co. v. Wood, 201 Pa. 420. We think the above cases and many others that might be cited fully sustain the proposition that the legacies provided in item fourteen of the will vested at the death of the testator.

It does not appear from this will that the testator intended that the legacies to the children of Ira L. Long should be divested by death prior to the time fixed for the payment of the principal. The will makes no disposition of their shares of the residuary estate in case of the death of any of them prior to the time fixed for final distribution, and this circumstance of itself “is a very influential consideration" in support of the vested and absolute character of the legacies: Burd’s Exr. v. Burd’s Admr., 40 Pa. 182; McCall’s App., 86 Pa. 254; Fell’s Est., 6 Pa. Superior Ct. 192.

3. It is contended by the court and argued by the counsel for appellees that the testator evidently intended to make the legacies contingent so that the persons interested would not dispose of their interests and thus interfere with the trustee keeping control of the property for twenty years, but this argument is not of much force when we remember that the Supreme Court has often held that the beneficiary may dispose of his legacy whether it be contingent or vested. In Whelen v. Phillips, 151 Pa. 312, it was decided as stated in the syllabus: “In Pennsylvania a person sui juris owning a contingent interest in land or in personal property, may sell the same, to one who does not stand towards him in a trust relation, and who does not impose upon him, for any sum agreed upon between them.

“A legatee under a will was entitled to a legacy of $4,466.66 ' contingent upon his surviving his mother. During the lifetime of his mother who was then seventy-six years of age, the legatee being in financial straits, sold his interest in the legacy for $1,000 to a person who stood in no trust relation to him: Held, that, in the absence of evidence of oppression or bad faith in the transaction, the sale passed a good title to the purchaser." To the same effect is Day & Sharpe’s Assigned Est., 21 Pa. Superior Ct. 118. See also Robbins’s Est., 199 Pa. 500; Phillips’s Est., No. 2, 205 Pa. 511. In that case Mr. Justice Brown said : “Whether he and the appellee regarded it as contingent or vested when he executed the assignment of February 17,1890, to relieve himself from his great embarrassment, to which he freely testifies, is immaterial; for he had a right to assign it if it was either: 'A person, sui juris, owning a contingent remainder in land, or in personal property, may sell the same for such sum as may be agreed upon between himself and the purchaser, provided the former does not stand towards him in a trust relation, and in making the purchase, acts in good faith:’ Whelen v. Phillips, 151 Pa. 312.”

4. The remaining question strongly argued by appellees’ counsel is that if the legacy to Mrs. Rettew was vested, it was divested by her death, under the last sentence but one of item fourteen of the will hereinbefore quoted. The testator's direction relied on is plainly limited to his children and it does not include grandchildren. To make this language include grandchildren requires a strained construction, and in our opinion a will so well drawn as the one in question will not bear a strained construction, especially on a question so well decided as the meaning of the words “my children” when used by a testator. It has been decided that children means descendants in the first degree and never includes grandchildren, except in the contingencies referred to in the cases.

In Hallowell v. Phipps, 2 Wharton, 376, Mr. Justice Rogers, speaking for the Supreme Court, used the following language which has often been quoted with approval and followed in the more recent cases. “ Under a bequest to children, grandchildren and other remote issue are excluded, unless it be the apparent intention of the testator, disclosed by his will, to provide for the children of a deceased child. But such construction can only arise, from a clear intention or necessary implication; as where there are not other children than grandchildren, or where the term 'children,' is further explained by a limitation over, in default of issue. The word ‘children’ does not ordinarily, and properly speaking, comprehend grandchildren, or issue generally. Their being included in that term, is only permitted in two cases, viz. from necessity, which occurs when the will would remain inoperative, unless the sense of the word, ‘children,’ were extended beyond its natural import; and where the testator has clearly shown by the other words that he did not intend to use the term ‘children,’ in the proper actual meaning, but in a more extensive sense.”

In Hunt’s Est., 133 Pa. 260, Mr. Justice Green, speaking for the Supreme Court, after quoting from Hallowell v. Phipps, said: “The above statement of the rule was supported by a citation of numerous decisions which fully sustain it in all its parts. With us it has never been departed from, but has been enforced in many instances, and never with any abatement of any of its terms. Examples of this are Dickinson v. Lee, 4 Watts, 82; Barnitz’s App., 5 Pa. 264; Horwitz v. Norris, 49 Pa. 213; Castner’s App., 88 Pa. 478.”

In Castner’s Appeal, 88 Pa. 478, Sterrett, J. said: “ It is the well established rule of construction in this state, as well as elsewhere, that the word children in a will does not include grandchildren, unless it appears from the context to have been so intended by the testator, or such meaning is necessary to carry out his manifest intent, neither of which appears to exist in this case.”

In the will under consideration, we find nothing in the context to warrant or justify a conclusion that the testator meant to include grandchildren when he said “ my children.’ ’ In several places in his will the testator refers to his children, to the children of his son, Ira L. Long, and to lineal descendants. In our opinion, a full and fair construction of this will as drawn will strongly negative the idea that the testator meant grandchildren when he said “ my children.”

It is urged that the language in the sentence quoted “parties taking per stirpes and not per capita” supports the idea that the testator meant to include his grandchildren when he said “if any of my children shall die without leaving lineal descendants,” etc., but we do not attach sufficient importance to the provision as to the distribution per stirpes, to allow it to overcome the plain words of the will. That provision was probably placed in the will out of abundant caution as the testator could not foresee with certainty the exact situation that might exist when the trustee came to distribute the principal of the estate.

We conclude this opinion by adopting the clear language of counsel for appellant, as follows: That the proper construction of the residuary clause is, that: (1) All the legacies given in it are vested; (2) The legacies to the “children” of the testator are subject to be divested by death within twenty years without leaving lineal descendants, while (3) The legacies to the- children of Ira L. Long are vested absolute and unconditional. It follows that the administrator of Florence R. Rettew is entitled to receive her full share of the income of the residuary estate for the entire year covered by the account, and the learned judge of the court below committed error in apportioning it between the administrator and the surviving children of Ira L.Long.

The assignments of error are sustained, and the decree is reversed, and it is now ordered and decreed that the fund be distributed in accordance with this opinion.

Rice, P. J.,

dissenting:

While it is true that in the construction of wills, the courts favor that construction which, consistently with the words of the instrument, will give a vested rather than a contingent estate, yet this, like all other similar canons of construction, is subservient to the great rule as to the intent. Viewing this will as a whole, I am led to the conclusion reached by the learned judge below as to the intention of the testator, and therefore would affirm the decree.


text:
    Jamison, Appellant, v. Cumberland County.

      Road law — Change of grade — Statutes—Repeal—Acts of May 1, 1905, P. L. 318, and June 8, 1907, P. L. 505.
    1. The state road Act of June 8, 1907, P. L. 505, amending sec. 16 of the Act of May 1, 1905, P. L. 318, repealed the earlier act in so far as it related to damages for change of grade.
    2. Where no change of grade was actually made on the ground until after the passage of the act of 1907, no recovery could be had under the act of 1905. Whatever constitutional rights to damages an owner might have for a change of grade made after the act of 1907, could be enforced by an action at law.
    Argued March 8, 1909.
    Appeal, No. 21, March T., 1909, by plaintiff, from order of Q. S. Cumberland Co., Docket No. 30, dismissing petition for appointment of viewers in case of Rebecca Jamison v. Cumberland County.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition for appointment of viewers
    The opinion of the Superior Court states the case.

      April 19, 1909:

      Error assigned was order dismissing petition.

      J. W. Wetzel, of Wetzel & Hamhleton, for appellant. —
    There is no canon of construction better settled than this, that a statute shall always be interpreted so as to operate prospectively and not retrospectively, unless the language is so clear as to preclude all questions as to the intention of the legislature: Sproul v. Standard Plate Glass Co., 201 Pa. 103; Smith v. Illinois Central R. R. Co., 36 Pa. Superior Ct. 584; Lane v. White, 140 Pa. 99.

      S. B. Sadler, with him Millard F. Thompson, for appellee.
   Per Curiam,

The sixteenth section of the Act of May 1, 1905, P. L. 318, provided as follows: “In case any person or persons, or corporations, shall sustain damage by any change in grade, or by the taking of land to alter the location of any highway which may be improved under this act, and the county commissioners and the parties so injured cannot agree on the amount of damages sustained, such person or corporations may present their petition to the court of quarter sessions for the appointment of viewers to ascertain and assess such damage; the proceedings upon which said petition and by the viewers shall be governed are by the laws relating to the assessment of damages for opening public highways, and such damages, when ascertained, shall be paid by the respective counties, and afterwards apportioned by the State Highway Commissioner according to the provisions of section fifteen.” This section was amended by the Act of June 8,1907, P. L. 505, so as to read in the same way excepting that the words “by any change of grade” were omitted. As a general rule, a statute amendatory of another, declaring that the prior statute shall read in a particular way, repeals all provisions not retained in the altered form. So that, at the time the appellant presented her petition for the appointment of viewers to ascertain and assess the damages she had sustained by the change of grade, there was no statute in force authorizing it, unless, as is argued, the repeal was not intended to, and could not constitutionally, affect the appellant and others similarly situated, because her right to damages had accrued at the passage of the amendatory statute. But the injury which she complained of, and on which her claim to recover damages is founded, is the change of grade of the highway immediately in front of her premises, and that was not made and the work was not begun until after the passage of the act of 1907. The rule established by the decisions under similar statutes is that it is the physical change that gives the right of action, and we are not prepared to hold that a different rule is applicable here. At any rate, nothing had been done before the passage of the act of 1907 which gave her a right after its passage to the remedy provided in the prior act. Of course, the amendment whereby the provision as to change of grade was stricken out could not affect any right to damages secured to her by the constitution, but the act cannot be declared unconstitutional because she is left without statutory remedy. When the legislature has not provided, or has repealed an act giving, a remedy to enforce a constitutional right to damages, the right may be enforced by action at law: Chester County v. Brower, 117 Pa. 647. The case is not the same as if the appellant were left without any remedy whatever. As the learned judge below well says, the right of the legislature to repeal the sixteenth section of the act of 1905 cannot be questioned, and the simple question here is, was it repealed? We entertain no doubt that such was the intention of the legislature and the effect of the act of 1907, at least so far as physical changes of grade made, and proceedings to recover damages therefor begun, after its passage are concerned.

The order is affirmed at the costs of the appellant.