author: Henderson, J.,

text:
    Brundage’s Estate.

      Will — Construction—:Distribution per capita or per stirpes.

    The words “equally to be divided” “to be equally divided share and' share alike,” or words of similar import in a will, indicate a testamentary intention to give to the individuals and, therefore, call for a distribution per capita unless other language of the will plainly shows a contrary intention.
    A bequest to a number of persons not named, but answering a general description, is a gift to them as a class. • ...1
    Testator after providing for several legacies gave the remainder of his estate to his son, and directed further that in case of the death of his son before he became of age “then the property to go'to my brothers’ and sister's children in equal ¡proportions share and share alike.’’’ The son died before reaching his majority by reason whereof the contingent bequest took effect. The testator had two brothers and one sister’.' Each of t'he brothers had three children and the sister one child. Held> that the brothers’ and sister’s children took per capita and not per stirpes.
    Argued March 6, 1908.
    Appeal, No. 62, March T., 1908, by-Pearl Brundage, from degree of O. C. Lackawanna Co., Old Series, No. 1,558, making distribution in Estate of C. W. Brundage, deceased.
    Before Rice, P. J., Porter, Henderson, Or-lady, Head and Beaver, JJ.
    Reversed.
    Exceptions to adjudication.
    On the exceptions to the adjudication Sando, P. J., entered a decree distributing the fund for distribution per stirpes and not per capita.
    The facts appear by the opinion of the Superior, Court..

      Error assigned was the decree of the court.

      A. D. Dean and A. A. Vosburg, with them.A. R. Brundage, for appellant. —
    It is a well-established principle of law that, every, will shall be construed to effectuate the intent of the testator. Artificial rules must yield 'to the intention of the testator, expressed or implied: Harris’s Estate, 74 Pa. 452; Thran v. Herzog, 12 Pa. Superior Ct. 551; Reck’s Appeal, 78 Pa. 432; Hauer’s Est., 16 Pa. Superior Ct. 257.

      It is a general canon of construction that the words “ to be equally divided” or “share and share alike” mean a per capita distribution, and only yields when it is apparent that there was a different intention: Priester’s Est., 23 Pa. Superior Ct. 386; Dible’s Est., 81* Pa. 279; Hicks’s Est., 134 Pa. 507; Peale’s Est., 33 Legal Int. 374; Sutton’s Est., 47 Pitts. L. J. 241; Stout’s Est., 16 Montg. County Law Repr. 193; McNeilledge v. Galbraith, 8 S. & R. 43; Hiestand v. Meyer, 150 Pa. 501; Gest v. Way, 2 Wharton, 445; Bender’s App., 3 Grant, 210; Kean v. Hoffecker, 2 Harring. 103; Brown v. Ramsey, 7 Gill, 347.
    Where the intention of the testator is in doubt the statute of distribution is a safe guide: Miller’s Est., 26 Pa. Superior Ct. 453; Sipe’s Est., 30 Pa. Superior Ct. 145; Minter’s App., 40 Pa. 111; Ashburner’s Est., 159 Pa. 545; Fissel’s App., 27 Pa. 55; Hiestand v. Meyer, 150 Pa. 501, DeHaven’s Est., 1 Clark, 336; Miller’s Appeal, 40 Pa. 387; Krout’s Appeal, 60 Pa. 380; Clement’s Est., 160 Pa. 391; Cremer’s Est., 156 Pa. 40; McConnell’s Est., 5 Pa. Superior Ct. 120; Smith’s Est., 10 Pa. Dist. Rep. 92.
    A bequest to a number of persons not named but answering to a general description is a gift to them as a class: Gross’s Est., 10 Pa. 360; Denlinger’s Est., 170 Pa. 104; Todd’s Est., 33 Pa. Superior Ct. 117; 2 Jarman on Wills, p. 756; Lugar v. Harman, 1 Cox, 250; Lincoln v. Pelham, 10 Ves. 166.

      Thos. F. Wells, for appellee.' —
    That a will is to be construed so as to carry out the intention of the testator, and that mere technical rules of construction must give way to the plainly expressed intention of the testator, is conceded: Schott’s Est., 78 Pa. 40; Bellas’s Est., 176 Pa. 122; Denlinger’s Est., 170 Pa. 104; Evans v. Knorr, 4 Rawle, 66.
    The words “equally between them” are “no less appropriate to a division among classes than to division among individuals: ” Ashburner’s Est., 159 Pa. 545.
    The words “share and share alike” would be appropriate if the testatrix had in mind a division among classes” and those words are not “ conclusive of the question whether distribution was intended to be per stirpes or per capita:” Sipe’s Est., 30 Pa. Superior Ct. 145.

      April, 20 1908:
    The expression “share and share alike” is applicable as well to individuals as classes: Alston’s Appeal, 11 Atl. Repr. 366.
    The per stirpes construction of this clause is correct when the language designating the objects of his bounty is considered: Fissel’s App., 27 Pa. 55; Minter’s App., 40 Pa. 111; Osburn’s App., 104 Pa. 637.
    Where there is a will and the testator’s intention is in doubt the statute of distributions is a safe guide: Sipe’s Est., 30 Pa. Superior Ct. 145; Grim’s Appeal, 89 Pa. 333; Miller’s Est. (No. 2), 26 Pa. Superior Ct. 453; Dunlap’s Appeal, 116 Pa. 500.
   Opinion by

Henderson, J.,

After providing for several legacies the testator gave the remainder of his estate to his son, Homer, and directed further that in case of the death of his son before he became of age “then the property to go to my brothers’ and sister’s children in equal proportions share and share alike.” The son died before reaching his majority by reason whereof the contingent bequest took effect. The testator had two brothers and one sister. Each of the brothers had three children and the sister one child. We are asked to determine whether the distribution among these children should be per capita or per stirpes. The words “equally to be divided,” “to be equally divided share and share alike,” or words of similar import in a will, indicate a testamentary intention to give to the individuals and, therefore, call for a distribution per capita unless other language of the will plainly shows a contrary intention: Bender’s Appeal, 3 Grant, 210; Dible’s Estate, 81* Pa. 279; Hiestand v. Meyer, 150 Pa. 501; Priester’s Estate, 23 Pa. Superior Ct. 386. In the clause now under consideration the direction is not only that the persons entitled shall take share and share alike, but that they shall take in equal proportions, the testator evidently intending to leave no doubt as to the manner of distribution which he desired. The bequest here is to persons bearing the same relationship to the testator. They are not designated by name nor described by the names of their parents, but by words equally definite are grouped as a class in a single phrase. No more appropriate words could have been employed to express the exact intention. If the bequest had been to the testator’s nephews and nieces the question might have arisen whether he intended to include in that description grandnephews and grandnieces or whether there was anything in the will to indicate that nephews and nieces by marriage were intended to be beneficiaries, but by adopting the language used there could be no doubt as to the identity of the persons. “A bequest to a number of persons not named, but answering a general description, is a gift to them as a class: ” Denlinger’s Estate, 170 Pa. 104.. The theory of 'the creation of three classes of legatees does not find support in the terms of the will. If classes are created there are but two of these — brothers’ children and sister’s children, and the estate should be divided into two equal parts, one going to each of the two classes. But the words must be wrested from their ordinary meaning to reach such a conclusion and that, too, in the face of clear words of equality. There is nothing in the will to indicate a desire on the part of the testator to give the child of his sister one-half of his estate, but there is enough to show that he wished the whole to go in equal shares to the class of persons who were children! of his brothers and his sister. The bequest is plainer than was that in Dible’s Estate, supra. Significance is attributed by the appellee to the difference in the form of expression used in that clause of the will making special bequests to the children of the testator’s brothers and the clause which we are called upon to interpret, but a legal distinction is not apparent between the words “in equal proportions share and share alike” and “to be divided equally between said children share and share alike.” We think it evident that the testator’s intention was to make equal distribution of his residuary estate among all the children of his brothers and sister. If there were doubt upon that subject the rule to follow the statute of distribution 'would apply as in Minter’s Appeal, 40 Pa. 111; Ashburner’s Estate, 159 Pa. 545; Sipe’s Estate, 30 Pa. Superior Ct. 145.

The decree is reversed and the record remitted to the court below to make distribution in accordance with this opinion.


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Higgins, Appellant, v. Price.

      Case stated — Practice, C. P. — Municipalities—Annexation of territory— Constitutional law — Act of April 28, 1903, P. L. 332.
    In determining an issue on a case stated the court cannot go oiitside of the case stated, nor beyond the issue therein raised, the presumption being that'what is not included is kept out for a sufficient reason.
    On a case stated to determine whether real estate annexed from a township to a city is liable to the township school district for taxes for the year of annexation, where no mention is made of the Act of April 28, 1903, P. L. 332, and it does not appear from the case stated that'the annexation proceedings were under that act, and the decree of annexation stands unreversed and unappealed from, the court in passing upon the case stated cannot determine the question whether the act of 1903 is or is not constitutional.
    Argued March 6, 1908.
    Appeal, No. 63, March T., 1908, by plaintiff, from judgment of C. P. Lackawanna Co., Sept. T., 1907, No. 351, for defendant on case stated in suit of Patrick Higgins, collector of school taxes for the School District of Lackawanna Township, v. Luther Price.
    Before Rice,' P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Case stated to determine liability of real estate for a school tax'. Before Edwards, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was' in .entering judgment for defendant on the case stated.

      J. J. Powell and William J. Fitzgerald, with them Joseph O’Brien and John P. Kelly, for appellant. —
    Counsel and court have assumed that the constitutionality of the act of' 1903 can be decided in this action on the principle that void judg- ' ment may be disregarded in any proceeding. If further authority be needed we refer to the following: Norton v. Shelby County, 118 U. S. 425 (6 Sup. Ct. Repr. 1121); Atchison, etc., R. R. Co. v. Maquilkin, 12 Kan. 301; Sample v. Pittsburg, 212 Pa. 533; Scott v. McNeal, 154 U. S. 34 (14 Sup. Ct. Repr. 1108).
    April 20, 1908:

      W. W. Watson, W. S. Diehl and Albert L. Watson, for appellee. —
    The constitutionality of the act of 1903, we respectfully submit, is not raised by the terms of the case stated, nor by the facts agreed upon and submitted in the case stated, and, therefore, the case as it appears in the case stated must be passed upon as submitted therein. We contend that this case is. limited to the facts agreed upon, and also subject to the principle that the court will not go outside of the case stated nor beyond the issue therein raised, the presumption being that what is not included was, kept out for sufficient reason: Philadelphia & Reading R. R. Co. v. Waterman, 54 Pa. 337; Northampton County v. Easton Passenger Ry. Co., 148 Pa. 282.
   Opinion by

Rice, P. J.,

- It appears by the case stated that the territory in which the defendant’s house and lot are located, being then a part of the township of Lackawanna, “ was annexed to the city of Scranton by- decree of the court of quarter sessions, made and entered August 8, 1904,” and “became a part of said city of Scranton on the first Monday of January, 1905.” It appears further that in the same year the school.district of the city of Scranton, which comprehends the whole city, levied a tax for school purposes on the defendant’s real estate and that he duly paid the tax to the city treasurer. In the same year the school district of Lackawanna township levied a tax of the same amount upon the same property, which he refused to pay. This action of assumpsit to recover it was instituted by and in the name of the collector of taxes of the school district of Lackawanna township.

■ It is claimed by appellant’s counsel that the case turns upon, the constitutionality of the Act of April 28, 1903, P. L. 332, that the provisions of the sixth section relative to taxation within-the annexed territory are unconstitutional, that these provisions are so connected with the other provisions of the act that the latter must also be declared unconstitutional, and therefore the decree of annexation was of no effect. On the other hand, the appellee’s counsel contend that the constitutionality of the act of 1903 is not raised by the terms of the case stated, nor by the facts agreed upon, and they invoke the indisputable principle that the court cannot go outside of a case stated nor beyond the issue therein raised, the presumption being that what is not included is kept out for a sufficient reason.

There is no stipulation in the case stated that, if the court be of opinion that the act of 1903 is'Unconstitutional, judgment shall be entered for the plaintiff, nor any stipulation equivalent thereto. The act of 1903 is not mentioned. The stipulation is, that judgment shall be entered for the plaintiff or the defendant as the court shall determine the question whether or not upon the admitted facts the plaintiff is entitled to recover. One of the admitted facts is, that the territory was annexed by the decree of the court of quarter sessions and became part of the city before this tax was levied by the township school district. Notwithstanding this admission, and notwithstanding the absence of anything to show that the decree was appealed from, the court is asked to infer that the legal question raised in this collateral proceeding was the validity of that decree. That inference cannot be drawn with certainty from the terms of the case stated. But suppose it could be, it must then be inferred further that the annexation proceedings were under the act of 1903 — a fact not stated nor necessarily to be implied —before the court could reach the question which the appellant’s counsel have argued. To draw all these uncertain inferences, and having drawn them, then to decide that the territory never became a part of the city, in the face of the admission that it did, would require a stretch of judicial power which would be unjustifiable under any circumstances. When it is remembered further that the decree stands unreversed and unappealed from, that a similar decree was affirmed by this court in a case where the constitutionality of the act was directly in question (Sheraden Borough, 34 Pa. Superior Ct. 639), that a decision declaring the act wholly unconstitutional and void would indirectly affect other municipalities and produce great confusion, it is apparent that the question of the constitutionality of those of its provisions which relate to the proceedings culminating in annexation should not be reopened until a case' is presented in which it necessarily arises. This is not such a case. Upon the admitted facts judgment was properly entered for the defendant. In putting the decision upon this narrow ground, z-ather than upon a determination of the question argued by appellant’s counsel, we are not to be understood as intimating that the provision of the sixth section relating to taxation within the annexed territory-is unconstitutional, or, if it is, that the other provisions relating to annexation cannot be sustained, or are of doubtful constitutionality. We simply decide that these questions are not raised by the case stated.

The judgment is affirmed.


author: Per Curiam,

text:
    Porter, Appellant, v. Scranton City.

      Road law — Change 0} grade — Damages—Viewers—Trespass:
    In an action of trespass against a city to recover damages for the destruction of a business caused by the construction of a viaduct, and the change of grade of a street, where no negligence is alleged, the plaintiff is not entitled to recover, where it appears that the plaintiff had been previously awarded damages by viewers for the injuries caused by the public improvement.
    Submitted March 6, 1908.
    Appeal, No. 6, Jan. T., 1907, by plaintiffs, from order of C. P. Lackawanna Co., Sept. T., 1904, No. 1,257, overruling exceptions to report of referee in, case of Alamanza Porter v. City of Scranton.
    Before Rice, P. J., Porter,- Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of S. B. Price, Esq., referee.
    Edwards, P. J., filed the following opinion:
    There is only one question in this case and the referee has correctly disposed of it.

      April 20, 1908:
    It appears that the city of Scranton in the construction of the viaduct on West Lackawanna avenue elevated the grade of the avenue in front of plaintiffs’ property from eight to eleven feet. Viewers were appointed and the plaintiffs were awarded $4,500 damages. Afterwards, by agreement, judgment was entered in favor of the plaintiffs for $4,000. At the time of construction of the viaduct and the change of grade of the street the plaintiffs were engaged in the junk business and the building erected on their land was adapted for that business. The referee has found .that the change of grade rendered the premises unfit, if not useless, for the business of the plaintiffs; at least it seriously affected its use for that purpose. Plaintiffs in the present action seek to recover for loss of profits, the evidence being that the profits were from $150 to $200 a month. None of the personal property , was taken or destroyed.
    The authorities cited by the referee sustain his conclusion. We need not go over them again.
    Now, April 29, 1907, the exceptions to the report of the referee are overruled and we direct judgment to be entered in accordance with the recommendation of the referee.

      Error assigned was the order of the court.

      George M. Watson, A. A. Vosburg and Charles W. Dawson, for appellant.

      David J. Davis, city solicitor, and H. B. Van Deusen, assistant city solicitor, for appellee.
   Per Curiam,

The nature of this case, which was an action of trespass, is clearly and concisely set forth in the opinion filed by the learned president judge of the court below.

The learned referee concludes his discussion of the case as follows:

“The plaintiffs appeared before the viewers and obtained an award and afterwards entered judgment by agreement. In those proceedings they were entitled to judgment for all damages occasioned to the property, and the viewers could take into consideration the use of the premises for the business carried on upon them at that time, and the value might in this way be enhanced. At any rate, such use could be put in evidence for the purpose of obtaining the actual value before and after the construction of the viaduct. I know of no other element of damage involving the value or injury to business that may be considered.” It should be noticed, in connection with the foregoing, that negligence is not alleged in the plaintiff’s statement of claim in the present case. . We think it clear, therefore, that the court below was right in sustaining the referee’s conclusion of law, which was to the effect that the plaintiff had shown no cause of action.

The judgment is affirmed.


author: Orrady, J.,

text:
    Commonwealth v. Allen, Appellant.

      Fish law — Illegal device — Fish basket — Eels—Act of April 27, 1903, P. L. 319.
    Substituting a wire screen for slats in an eel basket, and having three-fourths of the bottom a permanent construction and immovable, is a violation of the Act of April 27, 1903, P. L. 319, which provides “that every basket so used shall be made of slats not less than one-half inch apart with a movable bottom which shall be taken out of each basket, so used, at sunrise, and be kept out until sunset.”
    ' While the Act of April 27, 1903, P. L. 319, repealed all acts or parts of acts with which it is inconsistent, it must be treated as a part of the general system of regulating the catching of fish in the public waters of the commonwealth, and, as such, to be construed with the Act of May 29, 1901, P. L. 302, which by its title declares the species of fish which are game fish, and the species of fish which are commercially valuable for food, and also regulates the catching, and encourages the propagation of the same.
    To admit the use of an unlawful device, and at the same time contend that' the act was not violated because the fish taken were not of the species of game or food fish, is not consistent with the doctrine of the decided cases.
    Argued Nov. 20, 1907.
    Appeal, No. 75, Oct. T., 1907, by defendant, from order of C. P. Bradford Co., Feb. T., 1906, No. 377, discharging exceptions to record of justice of the peace in case of Commonwealth v. Allen.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to record of justice of the peace.
    The affidavit on which the summary conviction' before the justice of the peace was based was as follows:
    “October 5th, 1905, personally appeared before the subscriber, one of the Justices of the Peace'in and for said County and State, W. E. Shoemaker, Special State Fish Warden,' who being duly sworn, deposes and says that one J. E. Allen, on the night of September 2nd, 1905, and consecutively thereafter each night till Sept. 26, 1905, except three nights during said period and also, excepting Sundays Sept. 10, 17, and 24, 1905, and divers other times to Sept. 26,1905, in the Chemung river of the public waters of this Commonwealth and of the County of Bradford, with force and arms &c., did wilfully, maliciously and unlawfully fish with a fish basket and wing-walls in the said waters, and did use and operate the said fish basket for the taking of eels, and did therewith actually catch one and more eels, the said fish basket being illegally and unlawfully constructed and not in accordance with the requirements of the law, the same having in the place of slats and movable bottom, wire screens of very small meshes: to wit, about one-half inch square, and part of said bottoms even as described being solid and immovable, all contrary to Sec. 1 of the Act of April 27, 1903, P. L. 319, and under penalty as provided by Section Two of the Act of May 29, 1901, P. L. 302, as fully set forth in said Acts, and contrary to the Acts of Assembly in such cases made and provided, and against the peace and dignity of the Commonwealth of Pennsylvania.”
    The testimony taken before the justice sustained the affidavit.

      May 14, 1908:
    The justice convicted the defendant. On certiorari exceptions were filed to the judgment.
    In an opinion by Fanning, P. J., the exceptions were dismissed.

      Error assigned was in dismissing the exceptions.

      II. F. Maynard, of H. F. Maynard & Son, with him W. G. Schrier, for appellant. —
    A defendant charged with fishing for' eels, cannot be convicted of fishing for game or food fish, no matter what kind of device he is using to catch the eels, and we submit that such is the holding of the case of Commonwealth v. Kenney, 32 Pa. Superior Ct. 544.

      W. C. Wilson, of Idlley & Wilson, for appellee,
    cited: Com. v. Jolly, 15 Pa. Dist. Rep. 305; Com. v. Bercaw, 30 Pa. Superior Ct. 335; Com. v. Seechrist, 27 Pa. Superior Ct. 423; Com. v. Kenney, 32 Pa. Superior Ct. 544.
   Opinion by

Orrady, J.,

The defendant was adjudged guilty of taking fish with an illegally constructed eel basket, in one of the public waters of this commonwealth, and on the trial in' the court below he directly waived all irregularities in regard to the information and warrant, and entered his plea of not guilty, upon the contention that under the facts of the case he should be discharged from custody.

In August, 1905, he obtained a license from the treasurer of Bradford county to construct and operate an eel run or basket in the Chemung river, under the provisions of the Act of April 27, 1903, P. L. 319, which authorizes the taking of eels, upon procuring a specified license, and defines the manner in which they may be taken, etc.

The first section of the act makes it lawful to catch eels in the public waters of the commonwealth by use of fish baskets with wing walls, “provided that every basket so used shall be made of slats not less than one-half inch apart, with a movable bottom, which shall be taken out of each basket, so used, at sunrise and be kept out until sunset,” etc.

While this act repeals all acts or parts of acts with which it is inconsistent, it must be treated as a part of the general system of regulating, the catching of fish in the public waters of the commonwealth, and, as such, to be construed with the Act of May 29, .1901, P. L. 302, which by its title declares the species of fish which are game fish, and the species of fish which are commercially valuable for food, and also regulates the catching, and encourages the propagation of the same, etc.

The undisputed facts show that the defendant constructed a fish basket of wire screens, and having only one-quarter of the bottom movable, being entirely different from the basket required by the statute, which provides that it "shall be made of slats not less than one-half inch apart with a movable bottom.” Such ingenuity in substituting a device not warranted by the statute cannot be approved.

As stated in Commonwealth v. Bercaw, 30 Pa. Superior Ct. 335, the words of the statute indicate that what the legislature had in mind was the "manner” of fishing, and in Commonwealth v. Kenney, 32 Pa. Superior Ct. 544, we hold that the purpose of the act of 1901, is clearly defined in the very words of the title, namely, to regulate the catching, and encourage the propagation of game and food fish. These words reasonably invite an inquiry, not only into the number of the times when, and the methods by which such fish- may be lawfully taken, but also 'the methods deemed necessary by the legislature to encourage their propagation, and the modification, if any, of former legislation on the subject. The license issued to the defendant authorized him to construct and maintain a fish basket in strict conformity to the defined plans as set out in the statute, and none other. His attempt to evade its plain provisions fully justified the conclusion reached by the court below.

To admit the use of an unlawful device, and at the same time contend that the act was not violated because the fish taken were not of the species of game or food fish is not consistent with the doctrine of the decided cases: Commonwealth v. Kenney, 32 Pa. Superior Ct. 544.

Substituting a wire screen for slats, and having three-fourths of the bottom a permanent construction and immovablé was a manifest evasion of the legislative declaration that the whole bottom should be removed within the hours stated.

The basket as he maintained it, was a trap for every kind of fish that came down the stream, and how many would be unlawfully detained therein in their passage, would depend upon' the effectiveness of the contrivance to accomplish the purpose of the defendant. The fine imposed was fully warranted under the decisions of this court in the above-mentioned cases.

The judgment is affirmed.


author: Pee Cueiam,

text:
    Deardorff, Appellant, v. Pepple.

      Husband and wife — Tort of wife — Execution against husband — Setting aside execution.

    The property of a husband is not liable to execution on a judgment recovered against a wife for tort, the husband not being a party defendant to the action. Where a husband’s property is levied upon, and the husband takes a rule to set aside the execution, the execution should not be set aside generally, but only as to the levy upon the husband’s property.
    Argued March 10, 1908.
    Appeal, No. 9, March T., .1908, by plaintiff, from order of C. P. Adams Co., Aug. T., 1906, No. 143, making absolute rule to set aside execution in case of Charles J. Deardorff v. Catharine Pepple.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to set aside execution.
    Swope, P. J., filed the following opinion:
    This action was for alleged defamatory and slanderous words, and the plaintiff recovered a verdict against the defendant for the sum of $200, upon which judgment was duly entered.
    Execution was issued and the sheriff directed to first'levy upon the separate property of Catharine Pepple, and in default thereof, to levy on any property belonging to Calvin Pepple, her husband. '■ *

      The property of the husband was levied on, and on May-28, 1907, he presented his petition to the court asking that this writ of fieri facias and all proceedings thereon be quashed and set aside.
    Upon this petition a rule to show cause was granted which is now before us.
    Can the husband’s property be taken on execution in satisfaction of this direct verdict and judgment against the wife alone?
    There is no statutory authority allowing it, and if permitted, it must be by virtue of the common law, governing the liability of the husband for the torts of his wife.
    Under these circumstances is there such liability?
    The case of Hess v. Heft, 3 Pa. Superior Ct. 582, relied upon by attorney for execution, we think, is decisive of this contention, and from the able opinion of Smith, justice in this case, we will largely quote.
    “At common law the husband was liable for the torts of his wife, whether committed before or during coverture.
    “ For a tort in which the wife took an independent part the husband and wife were jointly liable.
    “For a tort which she committed by his direction he alone was liable. The wife being sub potestate viri, if she committed a tort in the husband’s presence it ,was presumptively in obedience to his direction; and unless it appeared that she did it wholly of her own will, he alone was liable:” Hess v. Heft, 3 Pa. Superior Ct. 582; 2 Kent, 149; Quick v. Miller, 103 Pa. 67; Franklin’s Appeal, 115 Pa. 534; Mfg. Co. v. Heil, 115 Pa. 487.
    But at the common law the husband and wife are regarded as but one person. The legal existence of the wife, during marriage, is merged in that of her husband — and this principle must not be lost sight of in determining the question before us.
    For this reason at common law, as a general rule, a feme covert could neither sue or be sued alone, but she must sue or be sued in connection with her husband: 15 Am. & Eng. Ency. of Law, page 794, etc.; Endlich & Richards on Married Women, 397, 398; Pollock’s Law of Torts, 37,

      Therefore at common law, while the husband was liable for the torts of his wife, yet his liability always followed a suit against Him alone, if the tort was committed by the wife at his direction, or against both him and his wife if the tort was committed in his absence.
    Without suit against the husband either alone or in connection with his wife, no common-law liability for her torts could be established. To establish this liability the husband, as the legal entity, must have his day in court.
    The common-law principles referred to above, showing the husband’s liability for the torts of his wife, are still in force and are without statutory modification..
    As stated by Smith, justice in Hess v. Heft, 3 Pa. Superior Ct. 582, the act of April 11, 1848, preserved to the wife the ownership of her property as fully after marriage as before, but did not protect it “from levy and execution on any judgment recovered against the husband for the torts of his wife,” provided that in such cases execution shall be first had against the property of the wife. Except, however, for the recourse to the wife’s property in the first instance, the husband’s liability remained as before: Quick v. Miller, 103 Pa. 67.
    Prior to this act the wife’s personalty, upon marriage, vested in the husband, and thus became subject to execution against him. The statute preserved this liability for her torts, while securing her separate ownership.
    The married person’s property Act of June 3,1887, P. L. 332, provided that a married woman might sue and be sued “for torts done to or committed by her, in all respects as if she was a feme sole.” And that damages recovered against her, “shall be payable out of her separate property and not otherwise.” The married person’s Act of June 8, 1893, P. L. 344, which repealed the act of 1887, gives a married woman capacity with certain exceptions, “to sue and be sued civilly in all respects and in any form of action and with the same effect, results and consequences as an unmarried person. But it neither modifies in any manner her husband’s liability for her torts, nor contains any provision limiting recourse to her separate property for damages recovered against her.”

      April 20, 1908:
    It is this last sentence of the learned justice upon which the plaintiff relies in justification of the execution complained of.
    But this is an .entire misconception of the court’s meaning.
    What this sentence says and means is this: While the act of 1893 allows a married woman to be sued alone, yet it does not modify her husband’s liability for her torts, or limit recourse to her separate property for damages recovered against her. When it is recalled that this was a suit against both husband and wife, the meaning of these words are clear and apparent.
    This case certainly contains no authority for a separate suit against the wife, and then the issuing of an execution against the husband to collect the judgment recovered against her alone.
    Since the act of 1893 the wife may be sued alone, but if the husband is to be held to the common-law liability for his wife’s torts, the common-law remedy must be followed, which has undergone no statutory change except the provision of the act of 1848, directing execution first against the property of the wife: Hess v. Heft, 3 Pa. Superior Ct. 582.
    The remedy at common law, as we have seen, requires as an absolute essential to fix the liability of the husband for the wife’s torts, that the husband be either sued alone or together with his wife.
    This action having been brought against the wife alone, no liability for the judgment attaches to the husband, and this rule is therefore made absolute.

      Error assigned was the order of the court.

      W. C. Sheely, for appellant.

      William Hersh, for appellee.
   Pee Cueiam,

The question involved in this appeal is correctly stated by the appellant’s counsel as follows: “Is the property of the husband liable to execution on a judgment recovered against a wife for tort, the husband not being .a party defendant to the action?” After an elaborate discussion of the legislation bearing upon the question the learned court below concluded that it is not, and in that conclusion we fully concur. We call attention, however, to a matter of practice which seems to be worthy of notice. The defendant in the judgment and execution was Catherine Pepple. The petitioner for the rule was her husband. It is obvious, therefore, that the rule should not have been to set aside the execution but only to set aside the levy upon the petitioner’s property. It is conceded by counsel on both sides that no further effect is to be given to the order appealed from than that. With this suggestion, and it being conceded in the appellant’s answer that the property levied upon by his direction belonged to the husband, the order is affirmed at the costs of the appellant.


text:
    Gebhart v. Graves, Appellant.

      Alleys — Trespass—Obstruction of alley — Fire escape.

    Where adjoining owners have ’the common right to the use of an alley, one of the owners cannot erect on a hotel building abutting on the alley, a fire escape so as to prevent the adjoining owner from having a free and unobstructed use of the alley at all times. In such a case the fact that the fire escape was located and directed to be built by a factory inspector of the state of Pennsylvania is immaterial.
    Argued March 10, 1908.
    Appeal, No. 18, March T., 1908, by defendants, from judgment of C. P. York Co., Jan. T., 1906, No. 56, for plaintiff on case stated in suit of David E. Gebhart v. Ann Eliza Graves and Clayton R. Graves.
    Before Rige, P. J., Porter, Henderson, Morrison, Órlady, Head and Beaver, JJ.
    Affirmed.
    Case stated to determine rights in an alley.
    Bittenger, P. J., filed the following opinion:
    This is a case stated, in which the facts are agreed upon by counsel in the case, and submitted for decision to the court.

      In the case stated, it appears that the properties of the plain-, tiff and defendants were formerly the property of one Devi Gallatin, fronting on Carlisle street on the south, in the borough of Hanover, and extending back in the dimensions named in the case stated, to Railroad street on the north, embracing the respective properties of the.parties.
    The plaintiff’s lot of ground.fronts on-said Carlisle street, and extends to a ten feet wide private alley, abutting on said private alley forty-five feet, three inches, with the use of said ten feet wide private alley on the rear of said lot to him, the said plaintiff, and his heirs and assigns forever, in common with the owner or owners of the lot owned by the defendant, Ann Eliza Graves, adjoining said ten feet wide private alley on the opposite side thereof, and abutting thereon.
    That there are erected upon the said land of the plaintiff, facing and abutting on said ten feet wide private alley, certain buildings used by the plaintiff as a stable, wagon-shed and storehouse, and the said buildings have been built and used for such purposes for a period of more than thirty-five years last past continuously.
    That the plaintiff’s said lot of ground was conveyed to him, in fee simple, by the administrator of Devi Gallatin, deceased, by deed dated December 1, 1900, and recorded in the office of the recorder of deeds of York county, Pennsylvania, in Deed Book 12 L, page 377.
    That in said deed, said lot of the plaintiff was conveyed to him, with the use of said private alley in common, with the owner or owners of the lot or lots of ground, adjoining said alley on the opposite side thereof, and the heirs and assigns of the plaintiff, and the heirs.and assigns of the owners of said opposite lots, facing and abutting on said private alley.
    That Ann Eliza Graves, one of the defendants, is the owner, in fee simple, of the lot of ground on the side of said private alley, opposite the said lot and said buildings of the plaintiff, and adjoining and abutting thereon, and is entitled to the use of -said alley in like manner as the plaintiff, and has rights thereto equal to those of the plaintiff, but not in excess thereof.
    That the said lot of said defendant, Ann Eliza.Graves, was conveyed to her by deed of John- F. Martin and wife, bearing date June 10, 1905, and recorded in the office of the recorder of deeds of said county, in Deed Book-14 M, page 8.
    That the defendant, Clayton R. Graves, is the husband of said Ann Eliza Graves, and lived with her during the year 1905, and continuously ever since, upon her said lot of ground.
    That during the year 1905, the- said defendant, Ann Eliza Graves, erected upon her said lot an hotel building four stories in height, the rear of which said hotel building abuts on said ten feet wide private alley, directly opposite the said building of the plaintiff.
    That said Clayton R. Graves, by and with the consent and agreement of said Ann Eliza Graves, and acting with her during the said year of 1905, erected said hotel- buildings, and with her knowledge, agreement and concurrence, - erected and set up at the rear of said hotel building in said year of 1905, and within and over said ten feet wide private alley, an iron fire escape at a place — being on the rear of said- hotel building — designated, ordered and located by Joseph P. Quinn, the regularly and legally appointed and acting deputy factory inspector of the state of Pennsylvania, and- said iron fire escape has ever since remained in said position.
    That the said iron fire escape projects from said hotel building into and over said ten feet wide private alley, and at right angles to the rear wall of said hotel building for a distance and space of five feet out from the rear wall of said hotel building, and extends said width of projection from the fourth story of said hotel building downward to within eleven feet of the ground of said ten feet wide private alley.
    That the said iron fire escape is so constructed that the lowest section can be lowered from the second floor of said hotel building to the ground in said alley, as the case may require, by means of a suspended stairway placed in a position for that purpose.
    That the distance above the ground to- said iron fire escape, in which said suspended stairway is suspended, is eleven feet.
    That the said lowest section of said fire escape is suspended when said fire escape is not in use.

      That the use of said iron fire escape and lowering of said lowest section to the ground is entirely at the will of the defendants, or either of them; and that the plaintiff has no use or control of said iron fire escape, and did not agree to the erection of the same, nor ratify, nor approve of its erection; but protested against the erection of the same, at and before it was erected, and has ever since continued to protest against the same.
    That said buildings of said plaintiff, facing and abutting on said ten feet wide private alley, have doors, all of which open into said private alley, through which the plaintiff reaches said buildings with his wagons and other property, and it is and was the only means of access to his said buildings by him and his predecessors in title for many years last past — ever since the erection of said buildings, with the exception of another door on the alley bounding said property on the east.
    That the said buildings of the plaintiff, facing and abutting on said ten feet wide private alley, are directly opposite the hotel building of said defendants; and said buildings of the plaintiff and said hotel building of the defendants are just about ten feet apart.
    That when the said suspended stairway of said iron fire escape is let down to the ground, it covers half the width of said ten feet wide private alley, and if said suspended stairway be let down to the ground at any time, it will be impossible for the plaintiff to open the door, through which he has access to his wagon-shed, in which are contained his wagons, of a sufficient width to permit the removal of said wagons, or to permit the entering of said buildings with said wagons.
    That before the erection of said hotel building, by the defendants in the year 1905, no other buildings, except small outhouses, were erected on said lot of ground of said Ann Eliza Graves that faced or abutted on said alley, nor was any iron fire escape upon and against the rear of any prior building on said lot, nor was there any other obstruction or projection from any building upon said lot of said defendants into or over said alley to any extent whatever' before the erection of said hotel building.
    The question for decision, is whether the construction of the said Hotel of defendants, on the lot of ground of the said Ann Eliza Graves, with a fire escape, as described above, is an obstruction to the use of said private alley by the plaintiff — the maintenance of which is unlawful — for which an action may be maintained.
    We have given this case due study and consideration, and come to the conclusion that the erection of the hotel in question, with fire escape over the said alley, with a landing in the same, when it is used, at the will of the defendants is without legal warrant.
    It is stated that both plaintiff and defendants have an equal right to the use of said private alley; that there were the same buildings on the south side thereof, the property of the plaintiff; that there are now a stable, wagon-shed and storehouse, and these had been there and used for thirty-five years past continuously, while on the north side of said alley, there were at the time, previous to the erection of the four-story hotel, nothing but outhouses, bounding on the alley opposite to plaintiff’s said stable, wagon-shed and storehouse. The plaintiff's title was acquired December 1, 1900; the defendant’s, Ann Eliza Graves, June 10,1905.
    The private alley provides a joint right of way for the parties in this case, their heirs and assigns, as it was at the time of said conveyance to them, respectively, to which right each is entitled to the uninterrupted use, with a fee in each, of the one-half of said alley upon the vacation of the same.
    The fact that Clayton Graves, when he erected the hotel for his wife, during the year 1905, built the said hotel on the north line of said alley, leaving no room for a fire escape, and located the halls to run only north and south; and that the regularly and legally appointed factory inspector of the state of Pennsylvania, ordered the present location of the fire escape complained of, can have no bearing in this case, as we understand it. The defendants should have provided for a legal construction of said fire escape, by leaving a sufficient space of ground for its erection on said south wall'of the hotel, without trespassing on the rights of the plaintiff, who held a prior title; and while it was placed there by the proper officer, under the police power of the commonwealth, that power does not go to the length of warranting a using and injury to, or appropriating the property of any citizen, without due process of law.
    Both the builders of the hotel, the defendants, and the commonwealth’s officer should have recognized this constitutional right of the plaintiff, by building said hotel and fire escape within the lines of defendants’ property, and so as to not in any degree obstruct plaintiff’s proper use of the alley.
    It was the duty of the defendant, Ann Eliza Graves, so to use her property as not to abuse the rights of the plaintiff.
    The said fire escape is five feet wide, extends outside of defendants’ line that width over the joint private alley of the plaintiff and defendants, within eleven feet of the ground, and there has suspended, a section of the same width to be lowered at the defendants’ convenience. In case of necessity during a fire in the hotel, or the neighborhood, that would be the very time the plaintiff would be necessitated to use the said alley for the removal of his property, wagons, horses and goods and chattels from his stable, wagon-shed and storehouse, located on said alley, long before and continuing there when the property of said Ann Eliza Graves was conveyed to her.
    The case of Ellis v. Academy of Music, 120 Pa. 608, rules this case. It is very similar to this. In that case all the material facts were established by a former verdict. In this case all the said facts are admitted, except that the alley is obstructed by said fire escape on the hotel building complained of; and even here it is admitted that when the suspended part of the fire escape is down, it is five feet in the alley, occupying one-half of it, and preventing the opening of the door of one of the plaintiff’s said buildings.
    It is held in the case above cited: that “No man may trespass upon another’s right, however insignificant that right may be; and, the former verdict and judgment conclusively establishing the fact that the original obstruction was a nuisance and a constant challenge to the plaintiff’s right, he was entitled in the second action to such punitive damages as would compel the abatement of the nuisance.”
    “ When by the several grants to the parties, their properties are bounded by a private alley in controversy and the same use of the alley is made appurtenant to each property, neither party has the right to alter the character of the alley in any particular without the assent of the other.”
    See also Mershon v. Fidelity Insurance, Trust and Safe Deposit Company, 208 Pa. 292.
    The fact that plaintiff protested against the erection of the hotel of Ann Eliza Graves, with the fire escape over the alley in question, and with a landing in the said alley, a change of the said alley, and the imposition of an increased servitude of which there was no grant and, therefore, no legal warrant under the accepted law, and that the erection was made in the face of said protest, appears in the case stated.
    And now, December 30, 1907, being of opinion that, under the facts above set forth, that the said iron fire escape is an obstruction to said alley, and the use thereof by the plaintiff, and that its erection and maintenance at the place designated is a trespass upon the rights of the plaintiff, and that its erection and maintenance is without legal excuse, it is ordered, as agreed in the case stated, that judgment be entered for the plaintiff against the defendants, for the sum of $5.00 and costs of suit, with the right to appeal, as agreed upon.

      Error assigned was the judgment of the court.

      J. L. Butler, with him C. E. Ehrehart, for appellants,
    cited: Patterson v. R. R. Co., 26 W. N. C. 327; Stevenson v. Stewart, 7 Phila. 293; Meehan v. Barry, 97 Mass. 447; Dempsey v. Kipp, 61 N. Y. 462; Craven v. Rose, 3 S. Car. 72; Boston Beer Co. v. Mass., 97 U. S. 25.

      J. B. Strawbridge, with him John J. Bollinger, for appellee,'
    cited: Hogg v. Bailey, 5 Pa. Superior Ct. 426; Patterson v. R. R. Co., 26 W. N. C. 327; Stevenson v. Stewart, 7 Phila. 293; Ellis v. Academy of Music, 120 Pa. 608; Fidelity Ins., etc., Co. v. Fridenberg, 175 Pa. 500; Hacke’s Appeal, 101 Pa. 245; Mershon v. Fidelity Insurance, etc., Co., 208 Pa. 292; Schmoele v. Betz, 212 Pa. 32.

      April 20, 1908:
   Per Curiam,

The judgment in this case is affirmed upon- the opinion of the learned president judge of the court below.


author: Morrison, J.,

text:
    Commonwealth v. Harvey, Appellant.

      Recognizances — Bond—Forfeiture—Appeals—Certiorari—Record.
    An appeal from an order of the quarter sessions discharging a rule to show cause why the forfeiture of a recognizance should not be remitted,- and the judgment stricken off, cannot be treated as an appeal under' the Act of December 9, 1783, 2 Sm. L. 84, but rather as a substitute for a certiorari, and any application to strike off the judgment can only be sustained on the ground of irregularity appearing on the record.
    The fact that the grand jury returns “no true bill,” and that on the day of the forfeiture, the case is continued in open court to the next term, with leave to again submit it to the grand jury, does not work-a discharge of the defendant. It is clearly his duty when called in open court, the term not having expired, to appear and renew his recognizance, or surrender himself into the custody of the sheriff. If he fails to do either it is within the discretion of the court to refuse to remit or modify the forfeiture.
    Argued March 11, 1908.
    Appeal, No. 11, March T., 1908', by defendant, from order of Q. S. Dauphin Co., Jan. T., 1906, No. 57, discharging rule to remit forfeiture in case of Commonwealth v. Frank Harvey and the Title Guaranty & Trust Compáúy of Scranton.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to remit forfeiture of recognizance. Before Kunkel, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was order discharging rule to remit forfeiture.

      Troutman & Llewellyn and Hargest & Hargest, for appellant. —
    There are two distinct propositions raised in this appeal:

      April 20, 1908:
    1. The effect of the finding of the grand jury, “No true bill” upon the forfeiture of the recognizance for the appearance of the defendant.
    2. The effect of the continuance of the case made in open court some time before the bail was forfeited.
    We hold that both of these were tantamount to “leave to depart the court:” Com. v. Kohle, 2 Kulp, 329; Com. v. Rice, 15 Pa. Dist. Rep. 604; Rowand v. Com., 82 Pa. 405; People v. Van Horne, 8 Barb. (N. Y.) 158; Mishler v. Com., 62 Pa. 55.

      John Fox Weiss, district attorney, with him TV. H. Musser, assistant district attorney, and W. H. Middleton, county solicitor, for appellee. —
    Since the proceedings on the forfeited recognizance were not in the common pleas, no appeal lies. The Act of December 9, 1783, 2 Sm. L. 84, makes no provision for an appeal- from the orders or judgments of the courts of quarter sessions, in refusing to moderate or remit forfeited recognizances: Bross v. Commonwealth, 71 Pa. 262; Commonwealth v. Oblender, 135 Pa. 530; Commonwealth v. Bird, 144 Pa. 194; Com. v. Flomenhaft, 3 Pa. Superior Ct. 566.
    The return of ignoramus of a bill of indictment by the grand jury does not, ipso facto, work a discharge of the defendant or his recognizance: State v. Stout, 11 N. J. Law, 124; Com. v. McAnany, 3 Brewster, 292; Mishler v. Com., 62 Pa. 55.
    It is a matter entirely within the sound discretion of the court below as to the levy, moderation or remission of a forfeited recognizance, and except for gross abuse of this discretion, the higher courts will not disturb the findings and conclusions of the court below: Com. v. Cohen, 22 Pa. Superior Ct. 55; Com. v. Miller, 6 Pa. Superior Ct. 35.
   Opinion by

Morrison, J.,

This is styled an appeal of The Title Guaranty & Trust Company of Scranton, Pennsylvania, from the judgment of the court of quarter sessions of Dauphin county, refusing to remit a forfeiture of the appellant’s recognizance, duly entered into, conditioned for the appearance of the defendant, Frank Harvey, in the said court, and to abide the order thereof and not depart the court without leave. The record shows that the recognizance was duly forfeited in open court on January 11, 1906.

In Commonwealth v. Flomenhaft, 3 Pa. Superior Ct. 566, we held, as stated in the syllabus: “An appeal from the order of the quarter sessions discharging a rule to show cause why the forfeiture of a recognizance should not be remitted and the judgment stricken off cannot be treated as an appeal under the act of 1783, but rather as a substitute for a certiorari, and any application to strike off the judgment can only be sustained on the ground of irregularity appearing on the record.” That case and the authorities therein cited, conclusively demonstrate that no appeal lies from the judgment of the quarter sessions refusing to remit or moderate the forfeiture of a recognizance entered into in said court. “Where there is a regular and formal forfeiture of a recognizance the liability of the recognizors is absolutely fixed thereby, and relief therefrom should be sought by petition to the court to respite the recognizance for cause to be shown under the Act of December 9, 1783, 2 Sm. L. 84: Foulke v. Com., 90 Pa. 257. In a suit upon a recognizance the entry of a forfeiture stands for proof of all the steps necessary to complete the forfeiture, upon the principle omnia prasumunter rite esse acta; hence it must be taken for verity that the defendant and his bail were duly called and did not appear or answer: Fox v. Com., 81* Pa. 511; Com. v. Basendorf, 153 Pa. 459.”

An examination of the record proper, brought up by the certiorari, does not show any ground of error for the reversal of the judgment. But if we had power to consider the facts and the opinion of the court, we can discover no ground for a reversal, even if the case were before us on appeal. The fact that the grand jury returned “no true bill,” and that on the day of the forfeiture, to wit: January 11, 1906, the case was continued in open court to March sessions, 1906, with leave to again submit it to a grand jury, did not work a discharge of the defendant. It was clearly his duty when called in open court, the term not having expired, to appear and renew his recognizance or surrender himself into the custody of the sheriff. He failed to do either, and it thereupon became the duty of the appellant to renew the recognizance or surrender the defendant. But the appellant did neither. It was therefore clearly in the discretion of the court of quarter sessions to refuse to remit or modify the forfeiture. Where a defendant is under a recognizance to appear in the quarter sessions and abide the order of the court and not depart the court without leave, it is a mistake to suppose that a return of not a true bill by the grand jury is in law a discharge of the defendant. It is nothing of the kind for he is still bound by his recognizance to appear when called and obey the order of the court. After the bill was returned ignored, a formal discharge of the defendant, by the court, would have released his recognizance. But this was not procured. We cannot sustain any of the assignments of error.

The appeal is dismissed at the costs of the appellant, and the judgment is affirmed.