author: Lewis, J.,

text:
    Commonwealth v. Peterson et al.

      Franklin E. Barr, Assistant District Attorney, for Commonwealth.

      George H. Detweiler, for defendants.
    May 6, 1930.
   Lewis, J.,

William E. Peterson, one of the defendants, during the course of his employment with the Manhattan Fire Proofing Company, sustained injuries, as a consequence of which he has been disabled since April 10, 1929. He became entitled to receive, and is now receiving, compensation under the Workmen’s Compensation Law of the State of Pennsylvania, amounting to $14.30 per week.

His wife, Daisy Peterson, filed her petition in this court, asking for an order for support of herself and her two minor children, alleging a desertion by her husband and a failure to provide for his family.

The Commonwealth, in pursuance of the provisions of the act of assembly, issued its warrant of seizure and has summoned the Employers’ Liability Assurance Corporation, Ltd., the insurance carrier of the employer, as garnishee.

The garnishee in this proceeding has raised the question of the right of the Commonwealth to seize the payments due Peterson under the provisions of the Workmen’s Compensation Act.

Section 318 of the Act of June 2, 1915, P. L. 736, known as the Workmen’s Compensation Law, provides;

“The right of compensation granted by this article of this act shall have the same preference (without limit of amount) against the assets of an employer, liable for such compensation, as is now or may hereafter be allowed by law for a claim for unpaid wages for labor: Provided, however, That no claim for compensation shall have priority over any judgment, mortgage or conveyance of land recorded prior to the filing of the petition, award or agreement as to compensation in the office of the prothonotary of the county in which the land is situated. Claims for payments due under this article of this act shall not be assignable, and (except as provided in section five hundred and one of article five hereof) shall be exempt from all claims of creditors, and from levy, execution or attachment, which exemption may not be waived.”

The question, therefore, to be determined is whether the weekly payments under the Workmen’s Compensation Act are immune from diligence on the part of the wife and children of the injured workman. The question is a new one and does not appear to have been judicially determined in our state.

The Workmen’s Compensation Act was passed pursuant to a belief that it was to public interest, and, therefore, ought to be made the public policy, to have a workman, injured in the course of his employment, supported for a reasonable time by the industry to which he contributed his labor. “The intention of the act [Workmen’s Compensation Act], then, is to secure workmen and their dependents against becoming objects of charity by making reasonable compensation for all such calamities as are incidental to the employment:” 28 Ruling Case Law, 714, § 2.

In our state it has been said that the statute (Workmen’s Compensation Act) is a remedial act passed for the benefit of workers (Pater v. Superior Steel Co., 263 Pa. 244) and is authorized by the police power (Lubanski et al. v. Delaware, Lackawanna & Western R. R. Co., 81 Pa. Superior Ct. 538), and, therefore, should be liberally construed.

And in a recent utterance of our Supreme Court it was held: “As it is in derogation of the common law, it must receive a strict construction, but not such a construction as would in any way fetter its humane purposes:” Zimmer v. Casey, 296 Pa. 529.

In its endeavor to guard the interests of the workman, our act prescribes in detail the manner of its application and the items that can be charged against compensation are set forth and defined by the act. The attorney through whose efforts compensation has been recovered must justify his claim and secure the approval of the authorities in charge of administering the act. It prohibits an assignment of compensation payments and operates to prevent an employer from deducting from payments made any money due from the employee for supplies furnished, even though the employee had agreed that the price of the supplies furnished should be deducted from his compensation money.

“To decide otherwise would seriously complicate the administration of the Compensation Act. The law provides for the payment of compensation in money and in no other way: Barnett v. Delaware, Lackawanna & Western Ry. Co., 8 Dept. Reps. 2457.”

It has been held that the defendant in a judgment entered on the compensation claim cannot claim the usual exemption allowed upon an execution: Lampe v. Southwark Cornice and Roofing Works, 28 Dist. R. 615.

It is clear, therefore, that this humanitarian measure (The Workmen’s Compensation Act) was enacted in response to a strong public sentiment, that the remedies afforded by the act should give the employee full measure of protection against creditors, and that the fundamental thought underlying the legislation was “that no one should come between the workman and the benefit to which he should be found entitled.”

See article in 28 Col. Law Rev. 985, which deals with the extent to which workmen’s compensation awards are protected against creditors. See, also, 77 University of Pennsylvania Law Rev. 144; Immunity of Workmen’s Compensation Award from Attachment, 14 Cornell Law Quar. 111; Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 N. W. Repr. 49; Di Donato v. Rosenberg, 221 App. Div. 624; 225 N. Y. Supp. 46.

This brings us to the substantial question involved as to whether an order for support made against a deserting husband for the benefit of his wife and children creates a relationship of debtor and creditor between the husband and the wife. “The term [creditor] commonly signifies one who holds some contractual obligation against another, and is ordinarily used as the antonym or correlative of ‘debtor,’ involving both a debt and a credit, for, unless there is a debtor, one whose duty it is to pay, and of whom the debt can be demanded, there cannot be a creditor to enforce and compel payment. The word is susceptible of latitudinous construction. In a strict literal sense, however, which may also be said to be its well established, customary, commercial and legal sense, the term signifies one who voluntarily trusts or gives credit to another for money or other property; one to whom a debt is due from another person, called the debtor; one to whom a sum is due and which is to be paid after allowing all just credits:” 15 Corpus Juris, 1370.

The obligation to support wife and children is not of the nature of an ordinary indebtedness and differs from the ordinary judgment or decree for the payment of money. The husband owes the wife no specific amount of money, the allowance of support is not technically a debt; it is making definite an imperfect obligation, that of support; it is compelling the husband to perform a duty. The obligation arises from the duty which the husband owes to the public as well as to the wife and children.

The language of Mr. Justice Frazer, in Moorehead’s Estate, 289 Pa. 542, is peculiarly applicable to this situation:

“ ‘The marriage contract once entered upon, becomes a relation rather than a contract and invests each party with a status towards the other and society at large, involving duties and responsibilities which are no longer matter for private regulation but concern to the Commonwealth. And in this aspect marriage is a social institution, publiai juris, being the foundation of the family and the origin of domestic relations of the utmost importance to civilization and social progress; hence, the State is deeply concerned in its maintenance in purity and integrity:’ Coy v. Humphreys, 125 S. W. Repr. 877.

“There is still another great factor to be considered in this case, the legal unity of husband and wife, and it is a unity which must continue to be recognized, however much modern laws enlarge the separate rights and privileges of each. And with this merger of existence and interests, established from the most ancient times in all civilized lands, how can it be claimed that the status of creditor and debtor is established between them, when it is a question of the mutual performance and fulfillment of fundamental duties as husband and wife which the obligations of humanity impose and the safety of society requires from both?

“ ‘The marriage contract has not the elements of ordinary contractual relations. That contract is a life contract, imposing upon the husband the support and maintenance of the wife in sickness and in health during life, contingent only on the termination by decree of court for statutory reasons:’ Keeser on Marriage, § 55. ‘The duty of the husband to support the wife is not dependent upon contract:’ 30 Corpus Juris, 517.

“These are accordingly primal obligations under the marriage relation imposed immemorially upon the husband and which do not fall within the range of the nature or the meaning of a debt. Every debt, of course, is an obligation, but every obligation is not a debt: Sonnesyn v. Aiken, 97 N. W. Repr. 557. A debt is a sum of money due by contract, express or implied. But a tax is not a debt. It is not founded upon contract. It does not establish the relation of debtor and creditor between the taxpayer and the State: Perry v. Washburn, 28 Cal. 318. When an alien secures citizenship it become his duty to support and protect the Commonwealth as far as possible. But he has made no contract to that effect. Similarly, the duty of a husband to provide for and protect his family becomes a duty upon his marriage, a fundamental duty, not a debt.”

The duty to provide maintenance for the wife and children is much more binding than a mere contractual obligation, and is not only a duty to her and his dependents but is as well an obligation to protect the public against being burdened with a charge. Ought we then to so construe a remedial statute, such as the Workmen's Compensation Act, as to defeat one of the very purposes which must have been in the mind of the Legislature when it placed the law upon our statute books?

In interpreting an ambiguous statute, the courts may, among other things, take into consideration the settled policy of the state in so far as it may throw light on the legislative intention, and a purpose to disregard sound public policy must not be attributed to the law-making power except upon most cogent evidence: 25 Ruling Case Law, 1040. We cannot adopt an interpretation which will lead to consequences that the Legislature of this state could not in reason have intended. We cannot subscribe to the idea that our Legislature intended by section 318 of the Workmen’s Compensation Act to discard sound public policy. To deprive a wife and children of support out of her husband’s income, no matter how obtained, would contravene every principle of public morals and public policy.

Liabilities of a bankrupt for the maintenance or support of a wife or child are not discharged in bankruptcy. Such liabilities are held to be in the nature of police regulations and not provable debts, and, hence, not discharged: 7 Remington on Bankruptcy, § 3556.

As was said in Wetmore v. Markoe, 196 U. S. 68: “The bankruptcy law should receive such an interpretation as will effectuate its beneficent purposes and not make it an instrument to deprive dependent wife and children of the support and maintenance due them from the husband and father, which it has ever been the purpose of the law to enforce.”

And in Dunbar v. Dunbar, 190 U. S. 340, the court declared: “We think it was not the intention of Congress in passing a bankruptcy act to provide for the release of the father from his obligation to support his children by his discharge in bankruptcy.”

And with reference to the obligation of the father to maintain an illegitimate child, it was said in Re Hubbard, 98 Fed. Repr. 710: “The bankruptcy act was passed to relieve persons bringing themselves within its provisions from the incubus of hopeless indebtedness; but it was not intended to, nor does it, subvert the higher rule which easts upon a parent the care and maintenance of his offspring,” a duty whose performance is required by “the welfare of the state, as also every principle of law, statutory, natural and divine.”

In construing various spendthrift trust provisions the courts have held that while they may protect the beneficiary from the claims of creditors or the consequences of his own improvidence, they are not protection against the obligation to support the beneficiary’s wife and minor children: Moorehead’s Estate, supra; Decker v. Directors of the Poor, 120 Pa. 272; Board of Charities and Corrections v. Moore, 6 Pa. C. C. Reps. 66.

In Board of Charities and Corrections v. Kennedy, 3 Dist. R. 231, it was held that a proviso contained in a will creating a trust, which declared that the payments to the beneficiary should not be anticipated and should not be liable to attachment or execution at the suit of any creditor, did not preclude the seizure and attachment of the interest of the beneficiary for the support of his wife and children, on the ground that “the obligation imposed by the laws upon every man to maintain his wife and children, is not a ‘debt’ within the legal definition of that term, but a duty, arising out of a provision of the laws, which no man can escape by any cunning device of conveyancing, or any provision inserted in any last will and testament, so long as he has property, the usufruct or income from which he is entitled to enjoy and which can be reached by the process of the court.” It was further held, that had the will contained an express provision that the income of the fund bequeathed to the beneficiary should not be liable to seizure for the support of his wife and children, such provision would have been totally void and of.no effect whatever in exempting him from this legal obligation, and that whatever is in his own power to enjoy may be seized and applied, so far as is requisite, to the necessary support of his wife and children if he has refused or failed to provide for them himself.

In Com. v. Cozens, 25 Dist. R. 177, it was held that, “taking the right of the beneficiary in its broadest sense, equity must consider that the support given to his wife and children is given to himself. The most that he can equitably ask for is a reasonable apportionment of the fund between him and them.”

In a number of jurisdictions it has been held that a claim for alimony may be enforced against any exemptions which the statute grants the husband: Winter v. Winter, 95 Neb. 335. In Szymanski v. Szymanski, 176 N. W. Repr. 806, the court holds that it has authority to set aside specific propeity of the husband to the wife as alimony, whether exempt or not, and, therefore, it may set aside a homestead purchased by a retired soldier with the allowance made him by the Government.

In Tully v. Tully, 159 Mass. 91, pension money was subjected to an alimony judgment, though the Federal exemption statute was invoked. Allen, J., in the last cited case, said: “Pension money is designed in part to enable the pensioner to support his wife and family, and the statute of U. S. Rev. Stat., § 4747, should not be strained to enable him to avoid his duty.”

In Zwingman v. Zwingman, 134 N. Y. Supp. 1077, property in a pension fund of a retired policeman was attached for the payment of alimony. The New York statute provides: “Moneys, securities and effects of the police pension fund, and all pensions granted and payable from said fund, shall be and are exempt from execution and from all process and proceedings to enjoin and recover the same by or on behalf of any creditor or person having or asserting any claims • against, or debt, or liability of, any pensioner of said fund.”

The court said: “It is contended in behalf of the defendant, who has removed from the state for the purpose of defeating a judgment rendered against him, that his property in this pension fund is exempt from the duty he owes to the State to support and maintain his wife; that, notwithstanding the legal oneness of the man and wife, which in this respect has not been changed by statute from the common law rule, the defendant is entitled to be supported and sustained out of a trust fund created under the laws of the state, -while his wife goes hungry. We do not believe the Legislature, in creating the police pension fund and exempting it from execution and other processes, ever intended that this exemption should be construed to deprive the wife of her legal and moral right to the support of her husband. The whole purpose of the statute is served when the fund is preserved for the use of the pensioner and those legally dependent upon him for support and maintenance — when it is held intact for the care of the woman who is, in law, but a part of himself, and entitled, with him, to share in the pension. . . .”

We think that the law must consider compensation given to an injured workman as not alone for his benefit but for the benefit of his wife and children as well. The most he can ask is an equitable apportionment of the payments between him and them. The order of support is the measurement by which the court makes specific a general duty to support created by the marital relations and by public policy. A support order is a sequestration and division of the property made on consideration of the circumstances of the family. Marriage furnishes the basis of permanent civilization. The duties assumed under it should be conscientiously discharged. Our courts will compel the enforcement of marriage obligations, and nothing should be permitted to be interposed by way of a bar or as a means of escaping from the duty which every man owes to support his family.

If Peterson were working and earning wages the court would have the undoubted right to seize whatever wages might be due him and apply them to the support of his family. In a large sense the compensation which he is receiving from the Employers’ Liability Assurance Corporation, the co-defendant, takes the place of wages. There is no reason why they, too, ought not to be applied to the same purpose.

The warrant of seizure issued in this case is confirmed and the Employers’ Liability Assurance Corporation, Ltd., is directed to pay to the Clerk of the Municipal Court, Domestic Relations Division, the sum of $7 a week for the wife and children of William E. Peterson.


source: Caselaw Access Project

author: Mays, J.,

license: Public Domain

text:
    Buntz’s Registration.

      E. H. Dysher, for petitioner and rule; C. W. Matten, contra.
    Sept. 11, 1929.
   Mays, J.,

— The petitioner filed his petition on Aug. 30, 1929, averring that he is a resident of the North Ward of the Borough of Hamburg; that he had paid a county tax and is in all respects qualified to register as a voter; that he has been a Republican all his life, and has voted the Republican ticket, but seldom at primary elections; that Robert Rupp is the registry assessor, and has caused the petitioner to be registered as a Prohibitionist, and after having done so made return thereof to the County Commissioners of Berks County; that the assessor did not interview the petitioner, or ascertain from him, or at his residence, what was his political affiliation; that the petitioner quite recently was informed that he is registered as a Prohibitionist, whereupon he called upon the assessor and requested him ’ to correct the registration so as to designate the petitioner as a Republican; that the original registry list, at the time of said application, had been returned by the assessor to the county commissioners’ office; that the petitioner called on the county commissioners and requested them to correct what is alleged to be an error, and to cause the petitioner to be registered as a Republican instead of a Prohibitionist, which request was refused; and that the petitioner, unless the requested change be made, will be deprived of his constitutional rights as a voter.

A rule was granted, returnable Sept. 3, 1929. The answer, amongst other things, denies that the petitioner will be deprived of his constitutional rights as a voter, averring that he was under the law regularly registered and enrolled as a Prohibitionist for a period of ten years, and that it became his duty to notify or request the registry assessor to change his party affiliation, if he desired to have it changed, at any time prior to or on the 62nd or 63rd day preceding the primary election.

Upon the return-day a hearing was had and the testimony of the petitioner and of Robert Rupp, the assessor, was taken. Prom a reading of it, it appears that the assessor did not visit the home of the petitioner to inquire of -him what his political affiliation was, and no declaration blank was left with him; that the petitioner was registered as being affiliated with the Prohibition Party because the registry books of the assessor’s predecessor in office disclosed that his political affiliation was that of a Prohibitionist; that the assessor, on the two consecutive days next preceding the 61st day before the Tuesday next following the first Monday in November, was sitting (notice of which appeared in the Reading Eagle and a Hamburg paper) at his home opposite the polling place for the purpose of hearing applications in regard to the assessment list; that the original registry books were returned to the county commissioners; and that no demand was made upon the assessor on said two consecutive days to have a change made, nor until a few days prior to the filing of the petition. The petitioner gave no thought to the matter of appearing before the registry assessor to request a change, and the application would not have been made at the time it was were it not for the fact that he is a candidate for tax collector on the Republican ticket, and but for that fact he “would have never thought of anything like this; that is the only thing that brings, me here.” The only time the petitioner voted at a primary was many years ago when he declared himself to be a member of the Prohibition Party.

For a discussion of what is the machinery for assessing voters for the purpose of qualifying them to exercise the right to vote we refer to Butler’s Petition, 30 Dist. R. 422. There is no question but that the Court of Common Pleas has the authority to order the assessor to correct the registry list; but it should only be done where it is manifest that law and justice so demand.

It was contended at the argument that the petitioner is entitled to the change prayed for because there was a failure on the part of the assessor to do his duty. Even though we should decide that the testimony discloses a failure on the part of the assessor to do his duty, this in itself is not sufficient to justify us in granting the prayer of the petition. It is only in the event that there is a mistake, or a breach or wilful neglect of duty on the part of the assessor, and no failure or neglect on the part of the petitioner, that the court should permit itself to act in applications of this kind. The facts here impel us to the conclusion that the voter, petitioner here, did not take the trouble within the required time to have the change made, and, as was said in Applications to Add Names to the Assessor’s Registry List, 16 Phila. 481, “the default or neglect is as much the voter’s as it is the assessor’s. It was not the intention of the Legislature to permit a voter to impute his own default as a breach of duty by the assessor.” Where the assessor fails to perform his duty the law provides a penalty for his fraud or misconduct. It is true that a citizen possessing the requisite qualifications should not be deprived of his vote, or of the right to vote, at a primary the ticket of his party; but as was said in Re Registration of Solo, 20 Dist. R. 553, “the policy which makes his competent registration a prerequisite to voting ought not to be frittered away because of hard cases.”

And now, to wit, Sept. 11, 1929, the rule to show cause is discharged.

From Charles K. Derr, Reading, Pa.


author: Evans, P. J.,

text:
    Commonwealth v. Ide.

      H. G. Teel, Assistant District Attorney, for Commonwealth.

      A. W. Day, for Department of Justice; B. S. Hemingway, for defendant.
    Dec. 4, 1929.
   Evans, P. J.,

— The record is fatally defective in this summary proceeding; however, we will decide the case on the merits.

Oct. 16, 1929, M. E. Shoemaker, a State fish warden, lodged an information before George A. Zeigler, a justice of the peace in the Town of Bloomsburg, charging the defendant, M. M. Ide, with the violation of sections 200, 201, 202 and 203 of the Act of May 2, 1925, P. L. 448, as amended by the Act of April 22,1929’, P. L. 621, in that he did, on July 11, 1929', wilfully, maliciously and unlawfully permit and allow certain substances of a kind and character deleterious, destructive and poisonous to fish, to wit, copper sulphate, to be turned into and allowed to run, flow, wash and be emptied into the Fishing Creek, inhabited by fish, in the Township of Benton, in this county.

Warrant issued the same day and the defendant was arrested and hearing had before the said justice. The justice’s record reads thus: “After hearing, defendant fined $100.00 and costs, or one (1) day in the Columbia County Jail for each dollar of fine imposed.”

Oct. 21, 1929, for cause shown, the defendant was allowed to appeal.

The proceeding came on for hearing before the court de novo Nov. 26, 1929. The testimony taken before the court shows that an accident happened on July 11, 1929, on the farm of the defendant in Benton Township in this county. He was engaged in spraying potatoes, using a six-row power sprayer propelled by horses. The material used was copper sulphate, lime and water. He prepared the spraying mixture on the bank of the creek some fifteen feet from the water’s edge. While the motor on his sprayer was being cranked, one of his horses suddenly became unruly and backed the sprayer against one of the barrels containing the spraying mixture and upset the same, and some of the spraying liquid — less than a half-barrel — ran out and down the bank into the creek. The water in the creek being low, sufficient of the copper sulphate-lime mixture got into the stream and killed several hundred trout. It was an unfortunate accident, one of those accidents which occasionally happen for which no one is responsible. The upsetting of the barrel and spilling of the spraying mixture was a loss to the defendant.

The Fishingcreek Sportsmen’s Association, within less than twenty-four hours after the accident happened, made a thorough investigation of the killing of the trout. Messrs. R. W. Rabb, Alvin Sutliff, M. D. Pennington and D. E. Hartman, members of the said association, testified that from their investigation they were satisfied that the copper sulphate mixture accidentally got into the stream and killed the trout.

The defendant, Ide, is an ardent sportsman himself and a member of the Fishingcreek Sportsmen’s Association.

Immediately after the accident happened, Mr. Ide sunk the barrels used in mixing the spraying material in the ground to such a depth that a like accident could not happen again.

Notwithstanding the fact that the record in this case is fatally defective, it should be reversed and set aside on the merits. The record shows neither a conviction of the defendant of the offense charged nor an entry of judgment against him, but after hearing had, just imposes a fine of $100.

And now, Dee. 4,1929, the appeal is sustained and the proceeding is reversed and set aside and the defendant discharged from his recognizance, the county to pay the legal record costs.

From B. S. Hemingway, Bloomsburg, Pa.


text:
    Commonwealth v. Bore et ux.

      Xopher Beck, District Attorney, for Commonwealth.

      Harry W. Petriken, for defendant.
    March 27, 1930.
   Potter, P. J., 17th judicial district, specially presiding,

These two defendants are husband and wife. On Feb. 6, 1930, they were tried before a jury on the charge of arson, and both were convicted. A motion in arrest of .judgment as to the wife was then filed, setting up that, inasmuch as she was the wife of Max Boto, she is presumed to have acted under his direction and coercion. The question was duly argued on March 5, 1930, and we now have it before us for disposal.

We think this position of counsel for the defendant, the wife, is well taken. A wife’s civil existence is extinguished in that of her husband, who is her substitute and representative, and she can do, or forbear to do, no act to affect her property unless it has been settled to her separate use. So far is this principle carried, that she is not liable for a trespas's, nor punishable for a crime, except the higher felonies, if committed in his presence and with his concurrence: McClure v. Douthitt, 6 Pa. 414.

These two defendants were indicted under the Act of March 31, 1860, § 139, P. L. 382, 416, making it a misdemeanor to knowingly burn a dwelling house to defraud an insurance company that has insured it. The testimony on the part of the Commonwealth proved conclusively that both defendants acted concurrently in the burning of their dwelling house in Mount Union, Huntingdon County, Pennsylvania. Applying the principle of law as enunciated in the above cited case, we, from the evidence produced at the trial, must conclude that this wife, in what she did towards the burning of their home, acted under the direction, compulsion and coercion of her husband, and, therefore, cannot be held to be guilty.

We find this dictum further relied upon and reiterated in 21 Cye., 1355, where it is said: “Where a criminal act is committed by a married woman in her husband’s presence, she is generally presumed to be acting under his influence or coercion. From this general rule the law excepts heinous crimes, such as treason, murder, and possibly robbery, no presumption of coercion existing as to them. Certain other offenses also which from their character are generally committed by women, such as keeping a house of prostitution, are not presumed to be committed under marital coercion. It is not necessary that the presence of the husband should be actual or immediate; his constructive presence is sufficient. It has been held that the husband need not be in the same room with his wife, or even in the same house, provided he is sufficiently near to exert a present or immediate influence. This presumption is a rebuttable one and may be overcome by proof that in fact no coercion existed; the state may introduce evidence to show that the wife acted voluntarily, where she is the accused.” As further bearing out this legal principle, see the case of Com. v. Conrad, 28 Legal Intell. 310.

We may well say that in the case at bar no such evidence was presented, in the absence of which, this not being a heinous crime, we must think she acted, from a legal viewpoint, under the direction of her husband. We find the same doctrine later stated in 30 Corpus Juris, 792, § 4201, as well as in the case of Com. v. Dwyer, 29 Pa. C. C. Reps. 73, where the wife was held not guilty for selling liquor illegally in the presence of her husband.

From the authorities herein cited, as well as from a common sense view of the testimony in this ease, we find that this wife cannot be held accountable for her acts in assisting in the burning of their home, she having acted in the presence of her husband and with his concurrence. He was convicted and was sentenced. She has been detained in the county jail awaiting our decision on the motion in arrest of judgment as to her, the files in the case having been delivered to us only yesterday.

And now, to wit, March 27, 1930, the verdict of the jury in the conviction of Mary Bore, alias Mary Boto, of arson in this case is set aside, and she is discharged from prison forthwith.

Prom E. W. Williamson, Hunting-don, Pa.


author: Alessandroni, J.,

text:
    Hirst’s Estate.

      H. E. Heine and J. S. Shepard, for petition; Daniel C. Donoghue, contra.
    May 2, 1930.
   Alessandroni, J.,

— Anthony A. Hirst died Feb. 22, 1921. By the terms of his will, after personal bequests and a gift to his daughter of an annuity of $1000, he directed that “all the rest, residue and remainder of my estate, real and personal, I give and devise unto my executors hereinafter named, and the survivors and survivor of them, in trust, to pay over to my said wife one-half, during her life, of the net income therefrom, and to divide the balance equally between my two sons, William L. Hirst and Arthur C. Hirst. . . . Upon the decease of my said wife, then, and not until then, I give, devise and bequeath to my said sons the balance of my estate in equal shares. ... I hereby authorize and empower my executors hereinafter named, and the survivors and survivor of them, to sell and dispose of any part of my real estate, at public or private sale or sales, for such price or prices and upon such terms and conditions as to them, or the survivors or survivor of them, may seem best, and to grant and convey the same to the purchaser or purchasers thereof, his, her or their heirs and assigns, free from all liability for or on account of the application of the purchase money or moneys, and clear of all trusts.”

He appointed his wife, his sons, William L. Hirst and Arthur C. Hirst, and the Bryn Mawr Trust Company executors of his will, and directed that “they shall not be restricted in investing to what are called legal investments.”

The executors filed their account in the Orphans’ Court of Montgomery County. In the adjudication filed Feb. 4, 1924, the residue of the estate was awarded “to the executors as testamentary trustees, to invest and pay there-out the annuity of $1000 to the daughter Maria, and to pay one-half of the balance of the income to the widow during her life and the other half in equal shares to the two sons during the life of the widow. At her death the principal of the residue of the estate will be paid over to the two sons in equal shares, less so much of the estate as will be necessary to produce the daughter’s annuity.”

On March 4, 1930, a petition praying for a declaratory judgment was filed in this court' by Arthur C. Hirst, one of the sons of decedent, and an executor named in the will. It is stated in the petition that on Feb. 5, 1930, petitioner signed an agreement to sell his right, title and interest in a property No. 1526 Wood Street, part of the assets of the principal of the trust estate, agreeing to assign to the purchaser a one-quarter interest in the property during the lifetime of his mother, Agnes R. Hirst, and after her death a one-half interest.

A title company refused to insure the title for the purchaser. Petitioner claims he has a present right to the enjoyment of one-quarter of the principal of the trust estate, and a vested remainder, upon the death of his mother, in one-half of the principal, subject to the deduction of a proper sum to be set aside to provide the annuity to his sister, and that his vested remainder cannot be divested by any subsequent or contingent event; that after setting aside a sufficient sum to assure payment of the annuity, the trust as to the remaining one-half of the estate involves no active duties, is a dry trust, the legal title and right of possession is vested, share and share alike, in petitioner and his brother, William L. Hirst, and should be distributed by the trustees. The Bryn Mawr Trust Company, one of the executors, claims the trust is an active trust; that the interest of petitioner is a contingent remainder in one-half of the estate, and if he predeceases his mother, his share of the estate will be distributed under the Intestate Act as the estate of Anthony A. Hirst.

The prayers of the petition are that the court decide—

(a) Under the terms of the will of Anthony A. Hirst, deceased, are the interests of Arthur C. Hirst and William L. Hirst, as remaindermen, vested pr contingent?

(b) What principal sum should be set aside out of the total assets of the estate of Anthony A. Hirst, deceased, to assure to Maria Hirst Levering the payment of her annuity of $1000?

(c) Under the terms of the will of Anthony A. Hirst, deceased, is the trust created for the benefit of Arthur C. Hirst and William L. Hirst during the lifetime of Agnes R. Hirst a dry trust, so that the said Arthur C. Hirst and William L. Hirst are presently entitled to the legal title, the possession and the full enjoyment of the principal of as well as the interest earned upon the said portion of the said estate?

In Letchworth’s Appeal, 30 Pa. 175, 179, it was said: “The law always and naturally inclines to attribute the real and substantial ownership of property to some existing person, even in the ease 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. ... A devise or legacy, appearing to depend upon an event that is sure to happen, is vested, if the happening of the event does not form a part of the description of the devisee, and if the suspensive expressions can, consistently with, or by the aid of other parts of the will, be probably interpreted as referring, not to the vesting of the title, but to the vesting of the enjoyment: Smith’s Exec. Interests, §§ 309, 310.”

In Rau’s Estate, 254 Pa. 464, it was held to be a general rule in the construction of wills that an interest is to be construed as contingent only when it is impossible to construe it as vested.

In the will of Anthony A. Hirst there is no gift over in the event of the death of the sons before the period of enjoyment fixed by the will. If their estates are contingent, in the event of the death of either before his share vested, it would be distributed as part of the estate of Anthony A. Hirst of which he died intestate.

Coggins’s Appeal, 124 Pa. 10, quoted with approval the language of Judge Sharswood in Chess’s Appeal, 87 Pa. 362: “The inclination of the courts is always in favor of the vesting of legacies, because in ninety-nine cases out of a hundred it is the intention of the testator that his bounty should be transmitted to the children or family of the beneficiary, otherwise indeed full effect is not given to it.” And the question, whether vested or not, is always to be determined by a fair and reasonable construction of the whole will, and not from any particular expression.

In Rau’s Estate, 254 Pa. 464, a testator created a particular estate, and disposed of the ulterior interests upon the happening of an event which determined the prior estate. The words “from and immediately after” were construed as referring only to the period of possession or enjoyment under the prior gift, and not as designed to postpone the vesting.

Where there was a direction that no distribution of the estate should be made until certain properties were sold, the words “no distribution” were held to mean that, notwithstanding the fact that the ownership had been disposed of by the will, the beneficiaries were not to enjoy full and unqualified possession of the property and securities in which the estate was invested until the sale of the properties: Brown’s Estate, 289 Pa. 101.

“Where interest, whether by way of maintenance or otherwise, is given to the legatee in the meantime, the legacy shall, notwithstanding the gift itself appears to be postponed, vest immediately on the death of the testator.” The beneficial enjoyment begins at once, payment only of the principal or capital is postponed: Harrar’s Estate, 244 Pa. 542, 547.

In Brown’s Estate, 289 Pa. 101, supra, it was decided that when time is annexed to the payment, and not to the legacy itself, such provision does not prevent the immediate vesting of the gift.

Setting aside an amount to assure the annuity of $1000 is a subject within the jurisdiction of the Orphans’ Court of Montgomery County, where the .account of the executors was filed and adjudicated.

“The jurisdiction of the several Orphans’ Courts . . . shall extend to and embrace . . 1 the distribution of the assets and surplusage of the estates of decedents among creditors and others interested,” and “all cases within their respective counties wherein executors, administrators, guardians or trustees may be possessed of or are in any way accountable for any real or personal estate of the decedent:” Act of June 7, 1917, § 9, (e) and (l), P. L. 363, 372.

A proceeding to obtain judgment under the Declaratory Judgments Act will not be entertained where the court lacks jurisdiction of the. subject-matter involved, or where another statutory remedy has been specially provided for the case in hand: Kariher’s Petition (No. 1), 284 Pa. 455.

The Orphans’ Court has exclusive jurisdiction: Hammett’s Appeal, 83 Pa. 392.

It is provided by the Act of June 7, 1917, § 24, P. L. 447, 490, that the remedy for the collection or enforcement of payment or delivery of all legacies, whether pecuniary, specific or otherwise, and whether charged on land or not, shall hereafter be exclusively in the Orphans’ Court.

By the terms of thé will of Anthony A. Hirst, the executors held the residuary estate in trust to pay the widow one-half of the net income during her life and the balance of the income to the sons. As trustees, the executors were vested with a discretion to select investments and were not confined to legal securities. They were given power to sell any part of the real estate at either public or private sale.

The direction that distribution of the estate is to be deferred until the decease of the wife, and “then, and not until then,” payment of the principal is to be made to the sons, clearly expresses an intention that the wife should receive one-half of the net income of the entire residuary estate and not be limited to the income from half of the estate.

To determine the nature of the interests possessed by remaindermen, the actual intent of the creator of such interests must first be discovered, and if the will makes that reasonably clear, it is unnecessary to resort to technical rules of construction: Packer’s Estate (No. 2), 246 Pa. 116; Brown’s Estate, 289 Pa. 101.

The trust created by the will is active. Petitioner is not entitled to the possession and enjoyment of his share of the principal of the estate during the lifetime of the widow.

And now, May 2, 1930, upon consideration of the foregoing case, it is adjudged and decreed as follows:

(a) That under the terms of the will of Anthony A. Hirst, deceased, the interests of Arthur C. Hirst and William L. Hirst as remaindermen are vested.

(b) This court is without jurisdiction to determine the sum to be set aside out of the total assets of the estate of Anthony A. Hirst, deceased, to assure Maria Hirst Levering of the payment of her annuity of one thousand dollars.

(c) Under the terms of the will of Anthony A. Hirst, deceased, the trust created for the benefit of Arthur C. Hirst and William L. Hirst during the lifetime of Agnes R. Hirst is an active trust, and Arthur C. Hirst and William L. Hirst are not presently entitled to the legal title, possession and full enjoyment of the principal, as well as the interest earned upon said portion of the said estate.


author: Per Curiam,

text:
    Mickelson’s Estate.

      Lionel Teller Schlesinger, for exceptions.
    May 26, 1930.
   Per Curiam,

When the account was called for audit, counsel requested that distribution be made to those inheriting from the next of kin, rather than to the administrator of the next of kin. The next of kin was the mother of decedent; she had died Jan. 1, 1929; intestate, and no administration had been raised.

The Auditing Judge made the award to the personal representative of the mother as next of kin.

This ruling was correct, not only under the law, but also because of our uniform practice.

There are and have been cases where, for instance, more than six years have elapsed, or where the estate of the next of kin has been settled, awards have been made directly to those entitled through the next of kin; but these cases are exceptions to the general rule and are dependent on their own peculiar facts. See Stokes’s Estate, 18 Dist. R. 236; Garman’s Estate, 211 Pa. 264, and adjudications of this court, particularly Coil’s Estate, as of October Term, 1927, No. 3070.

In the instant case, however, because of the comparatively recent decease of the next of kin, such awards would be improvident, if not improper.

Accordingly, all exceptions are dismissed and the adjudication is confirmed absolutely.


author: Hargest, P. J.,

text:
    Commonwealth v. Marter.

      Karl E. Richards, Assistant District Attorney, for Commonwealth.

      J. Paul Rupp, for defendant.
    July 7, 1930.
   Hargest, P. J.,

— This case comes before us upon an appeal from a summary conviction for reckless driving, in violation of “The Vehicle Code” of May 1, 1929, P. L. 905. The offense occurred in the neighborhood of Front and Chestnut Streets, in the City of Harrisburg. The defendant was arrested on view by a police officer and taken before Alderman Windsor, then sitting for the Mayor at the City Hall, Walnut and Aberdeen Streets, because the orders to the officers were to take all such offenders to the police station. An information was immediately made, and subsequently a hearing was had at the police station before Alderman John P. Hallman, also sitting at the request of the Mayor. There were nearer magistrates, and there was no evidence that they were not available. The testimony of the officer makes out a case of reckless driving. The defendant at the hearing invoked section 1201 of The Vehicle Code, which requires cases of this character to be brought before “the nearest available magistrate.” The judge hearing this appeal, while intending to have this case go upon the argument list, used language which actually affirmed the action of the alderman, but on petition filed June 20, 1930, so much of the order as might be regarded as precluding the present consideration was revoked.

The. district attorney raises the question of the constitutionality of section 1201 of The Vehicle Code, in that no notice of the subject-matter of that section is given in the title. This is a very serious, interesting and important question.

The Constitution of Pennsylvania provides, in article ill, section 3:

“No bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title.”

Section 1201 of “The Vehicle Code,” in so far as it affects this question, provides:

“Informations charging violations of any of the provisions of this act, except in cases where the offense is designated a felony or a misdemeanor, shall be brought before the nearest available magistrate within fifteen; days after the commission of the alleged offense. . . .”

. The title of the act, in so far as it could in any way relate to the subject-matter of section 1201, is as follows:

“An act for the protection of the public safety; regulating the use of highways, and the operation of vehicles . . . upon the highways of this Commonwealth; . . . prescribing and limiting the powers of local authorities to deal with the subject matter of this act; conferring powers and imposing duties upon the Department of Revenue, the Department of Highways, peace officers, mayors, burgesses, magistrates, aldermen, justices of the peace, the courts and the clerks thereof, owners of vehicles and garage keepers. . . .”

In Com. v. Frank, 1 Dauphin Co. Reps. 6, 8, 9, Simonton, P. J., in a very learned opinion, after discussing at length the common law jurisdiction of aldermen and justices of the peace, said:

“They have at this day all the powers and jurisdiction that justices of the peace had in England prior to the settlement of this country, except where these have been circumscribed or enlarged by statute. . . .

“In the absence of statutory regulation, a justice of the peace would undoubtedly have criminal jurisdiction throughout the county, an alderman throughout the city, in which they hold their respective offices.”

See, also, 1 Stephen’s History of Criminal Law, 190, 191; Sadler’s Criminal Procedure, 117.

It, therefore, appears that every alderman of the city and every justice of the peace of the county has jurisdiction of an offense occurring respectively in the city or county, and the effect of section 1201 is to oust every justice of the peace or alderman but one in the city or county of his jurisdiction. The inquiry, then, is whether the title of the act gives notice of such provision. The title provides for “prescribing and limiting the powers of local authorities to deal with the subject-matter of this act.” This would be sufficient notice if it were not for the fact that “local authorities” are defined in the act to be “every county, municipal, and other local board or body, having authority to adopt local police regulations under the Constitution and laws of this Commonwealth.” This definition excludes magistrates. There is no other suggestion in the title limiting the authority of magistrates, aldermen or justices of the peace. As to them the title says that the act is “conferring powers and imposing duties upon” them. Section 1201 is far from either conferring powers or imposing duties upon magistrates. It is taking away the powers which the aldermen and justices of the peace already have.

In Phillips’s Estate, 295 Pa. 349, 353, it is held:

“A statute is constitutional only to the extent that its purpose is clearly expressed in the title, everything beyond this being violative of article III, section 3, of the state Constitution. We have also steadily held to the requirement of a clear expression, in contradistinction to one which can only be reached by a process of reasoning.”

In the case just referred to an act of assembly was construed which, in its title, prevents physicians from testifying to communications made to them by their patients, while the body of the act provides that they shall not be allowed' to disclose any information acquired in attending the patient. The court held that the title limited the act to communications made to physicians by their patients. Certainly, comparing section 1201 with the title of “The Vehicle Code,” there is in the title no clear expression of a limitation of the jurisdiction of aldermen and justices of the peace nor even an expression from which such limitation could be conceived by a process of reasoning.

In Guppy v. Moltrup, 281 Pa. 343, it is held:

“Where the words used in the title of a statute are reasonably capable of more than one meaning, the title does not comply with the requirements of article hi, section 3, of the state Constitution.

“Setting forth, in the title of a statute, language which is dubious or uncertain is not a compliance with the purpose of the constitutional provision. Its requirement is that the subject shall be clearly expressed in the title, so that any one reading it may at once understand the scope of the act.”

See, also, Spector v. Northwestern F. & M. I. Co., 285 Pa. 464.

In Strain, Admin’r, v. Kern, 277 Pa. 209, it is held that “a statute altering the common law is not to be extended beyond its obvious import.” In this case it was held that the title of the Fiduciaries Act of 1917, which, provided for “the abatement and survival of actions and the substitution of executors and administrators therein,” did not give notice of the provision in the body of the act giving executors or administrators power to commence and prosecute all personal actions which the decedent whom they represent might have commenced and prosecuted, except actions for slander and libel.

It clearly follows from these authorities that the provisions of section 1201, ousting the jurisdiction of all aldermen and justices of the peace in a respective city or county except “the nearest available magistrate,” is unconstitutional because no notice of such a limitation is found clearly expressed in the title.

Section 105 of The Vehicle Code provides that if any provision of the Code is held unconstitutional, the decision so holding shall not be construed as affecting or impairing any other provision of the act.

In view of our conclusion as to the constitutionality of section 1201, it may not be necessary to discuss the questions of construction which have been raised, but that the Legislature may have these questions before it in considering any proposed amendments we think we should refer to them.

What is meant by “the nearest available magistrate?” Is it the magistrate nearest to the place of the alleged violation or nearest to the place where the alleged offender is apprehended? There are consummated and continuing offenses. For instance, driving without displaying registration tags, or with defective brakes, or at night without lights, are examples of continuing offenses. A man driving from Harrisburg to Philadelphia would violate the law in every county through which he passes. Where is he to be prosecuted? Reckless driving, driving past signal lights or stop signs are consummated offenses. Is this provision for the benefit of the witnesses or for the benefit of the defendant, or was it to prevent officers from taking alleged violators before favored magistrates? Did the Legislature intend to interfere with police officers, operating under discipline and instructions to take offenders to the police station, and require such officers to hunt for the nearest available magistrate in the midnight hours? The arrest must be made within fifteen days. Assuming that a resident of Philadelphia was imperiled by reckless driving in the City of Harrisburg and he subsequently discovered that the offender was also a resident of Philadelphia, should such a statute require both the prosecutor and the defendant to travel from Philadelphia to Harrisburg to have the case brought before the nearest available magistrate to the scene of violation? There is no right to arrest on view for violations which would come within section 1201. Such right to arrest is limited by section 1203(a), “where the offense is designated a felony or a misdemeanor, or in cases causing or contributing to an accident resulting in injury or death to any person.” Yet the common practice of police officers is to arrest on view in cases where summary conviction is the proper remedy. Otherwise, with the facility of escape, justice, in many instances, could not be obtained.

These are some suggestions that would occur in the construction of this section of the act which should be clarified.

We quite agree with the district attorney that the requirement of section 1201 that the offender shall be “brought before the nearest available magistrate within fifteen days after the commission of the alleged offense” is indefinite and uncertain and very difficult of reasonable enforcement. Since we conclude that section 1201 is unconstitutional, it follows that the judgment of the alderman must be sustained.

Now, July 7, 1930, the judgment of John P. Hallman, alderman, sitting at the request of the Mayor, is' sustained, the defendant is adjudged guilty and is hereby fined $25 and costs. Prom Homer L. Kreider, Harrisburg, Pa.


author: Campbell, P. J.,

text:
    Hollobaugh’s Estate.

      Zeno F. Henninger, for Jacob Hollobaugh.

      Jackson & Troutman, for Enos O. and Isabella Hollobaugh.
    April 22, 1930.
   Campbell, P. J.,

— John Hollobaugh (hereinafter called the soldier), a soldier in the United States Army, died in the service in the month of April, 1918, intestate, unmarried and without issue, leaving to survive him as his heirs at law his parents, Jacob E. Hollobaugh and Ada Hollobaugh. At the time of his death the soldier was insured under a war risk insurance policy in the sum of $10,000, in which his mother, Ada Hollobaugh, was named as beneficiary. After his death, monthly payments of $57.50 were paid to the beneficiary under the terms of the policy until her death on June 18, 1928. The said Ada Hollobaugh left to survive her as her heirs at law her husband, the said Jacob E. Hollobaugh, and two children, Enos O. Hollobaugh and Isabella Hollobaugh.

Letters of administration on the estate of the soldier were duly issued to the Butler County Trust Company, to which was paid by the Government the sum of $5765, the commuted value of said war risk insurance policy, as of the date of the death of the beneficiary, which constituted the entire estate of the soldier. At the above number and term the administrator filed its final account, showing a balance due, after deduction of the costs of administration, of $5398, which account was confirmed absolutely, and thereupon E. H. Negley, Esq., was appointed auditor to make distribution of said balance to and among the parties entitled thereto.

The auditor found the facts as above stated and to his findings of facts no exceptions were filed. In his conclusions of law the auditor found: 1. At the death of the soldier his estate vested in his father, Jacob E. Hollobaugh, and his mother, Ada Hollobaugh, in equal shares. 2. Under the laws of the United States governing war risk insurance, the unpaid balance due on a policy, upon the death of the beneficiary, is commuted and paid to the soldier’s executor or administrator for distribution among his legal heirs according to the laws of the state of his domicile. 3. At the death of the [soldier’s] mother, her share or interest became vested in her legal heirs, to wit, her surviving husband,- Jacob E. Hollobaugh, one-third; her son, Enos O. Hollobaugh, one-third; and her daughter, Isabella Hollobaugh, one-third. 4. Being derived from war risk insurance, the fund for distribution is not subject to the transfer inheritance tax of Pennsylvania. The auditor then directed distribution of said balance as follows: To Jacob E. Hollobaugh as surviving father, $2617.75; to Jacob E. Hollobaugh as surviving spouse of Ada Hollobaugh, $872.58; to Enos O. Hollobaugh, $872.58, and to Isabella Hollobaugh, $872.59.

Jacob E. Hollobaugh filed exceptions to the first and third of said conclusions of law and to that portion of the said schedule of distribution which contains awards to Enos 0. Hollobaugh and Isabella Hollobaugh, which exceptions were overruled by the auditor and renewed in court and are now before us for disposal.

The contention of the exceptant is that at the death of the soldier the amount due on his war risk insurance policy vested in his father and mother, as tenants by entireties, subject to the monthly payments to his mother as the beneficiary named therein during her life or until exhausted in accordance with the terms of the policy; that upon her death the entire commuted balance thereof was payable to the administrator of the soldier to be distributed in accordance with the intestate laws of Pennsylvania, within the class of beneficiaries designated in the War Risk Insurance Law; and that, in accordance therewith, the entire balance, less costs of administration, was payable to the soldier’s father as surviving spouse of his wife, the soldier’s mother, under the right of survivorship incident to an estate by entireties in husband and wife. We think this a correct statement of the law applicable to the facts found by the auditor.

“Where a named beneficiary [in a war risk insurance certificate] dies after surviving the insured . . . the unmatured instalments become a part of the latter’s estate as of the date of his death, although the time when they will actually be received and the amount thereof is then uncertain. . . . Being a part of the insured’s estate and vesting as such at his death, it vests, in the absence of a testamentary disposition, in his then next of kin under the intestate laws:” Ogilvie’s Estate, 291 Pa. 326, 334; Schultz’s Estate, 96 Pa. Superior Ct. 514, 516, 517; Meisenhelter’s Estate, 297 Pa. 292. The facts in the last cited case are similar to those here. The opinion of the court below is reported in 42 York Leg. Record, 170.

Under section 8 of the Intestate Act of June 7, 1917, P. L. 429, 436, this entire fund vested in the father and mother of the soldier as of the date of his death in 1918, subject to the payment of the monthly instalments to the mother as beneficiary under the policy. They took as tenants by entireties, an incident of which is the right of survivorship, and upon the death of Ada Hollobaugh the entire balance now for distribution vested in her surviving husband, Jacob E. Hollobaugh, father of the soldier: Frankenfield v. Gruver, 7 Pa. 448; Gillan’s Exec’rs v. Dixon, 65 Pa. 395; Diver v. Diver, 56 Pa. 106; Sloan’s Estate, 254 Pa. 346; Manzke’s Estate, 13 Berks Co. L. J. 152; Wall’s Estate, 72 Pitts. L. J. 932; Stevenson v. Pennsylvania R. R. Co., 6 D. & C. 564.

The auditor’s conclusion that no transfer inheritance tax is due on this balance for distribution is sustained: Wanzel’s Estate, 295 Pa. 419. Therefore, exceptions Nos. 1, 2, 3, 4, 5 and 6 to the auditor’s report are severally sustained and the court finds the following

Conclusions of law.

1. At the death of John Hollobaugh, the principal sum due on his war risk insurance policy vested in his father and mother, viz., Jacob E. Hollobaugh and Ada Hollobaugh, as tenants by entireties, subject to the monthly payments to said Ada Hollobaugh as beneficiary named therein during her life or until exhausted in accordance -with the terms of the policy.

2. At the death of the said Ada Hollobaugh, the unmatured instalments or commuted balance of said policy became a part of the estate of John Hollobaugh as of the date of his death, payable to his administrator, the Butler County Trust Company, for distribution under the Intestate Law of Pennsylvania.

3. The right of survivorship is an incident to an estate by entireties acquired by the surviving parents of a deceased intestate.

4. The balance of said fund in the hands of the administrator after payment of the costs of administration and of audit vests in the said Jacob E. Hollobaugh.

5. The entire balance for distribution being the proceeds of a policy of war risk insurance, no transfer inheritance tax is due thereon to the Commonwealth of Pennsylvania.

The auditor’s schedule of distribution is amended in so far as it relates to the distribution of the balance remaining after payment of costs of audit, by striking out the payments therein provided to Jacob E. Hollobaugh, Enos O. Hollobaugh and Isabella Hollobaugh, and inserting in lieu thereof: Distribution: To Jacob E. Hollobaugh as surviving parent of John Hollobaugh, deceased, and as surviving spouse of Ada Hollobaugh, deceased, $5235.50.

Prom Thomas H. Greer, Butler, Pa.


author: Pine, J.,

text:
    Pittston Beverage Co. v. Pennsylvania Alcohol Permit Board.

      Abram Salsburg, for appellant.

      Wilhelm F. Knauer, Special Deputy Attorney-General, contra.
    March 27, 1930.
   Pine, J.,

— This is an appeal from the order of the Alcohol Permit Board, revoking permit granted to plaintiff to operate a brewery or cereal beverage plant in Pittston. The record of the testimony taken before the Federal Prohibition Administrator, on citation to revoke the Federal permit, was submitted at the hearing before the Permit Board, as well as additional testimony from three of the witnesses who testified in the Federal proceedings. The testimony taken at both hearings was filed, by agreement of counsel, as the record in this appeal, “with the same force and effect as if the witnesses had personally appeared and testified.” The Federal Administrator saw all of the witnesses and heard them testify; the Permit Board, three of them; and this court, not any. Hence, we have least opportunity of appraising the value of the testimony of the respective witnesses.

After perusing the entire record in this appeal, we find the following

Facts.

1. That the plaintiff was, on Nov. 3, 1928, the holder of a permit granted by the Pennsylvania Alcohol Permit Board, authorizing it to manufacture, produce, distill, develop, use in the process of manufacture, redistill, recover, refise, store, sell at wholesale and remove alcohol or alcoholic liquid produced in the process of operating a brewery or cereal beverage plant, all in full accordance with the laws and regulations of the United States and the Commonwealth of Pennsylvania applying to breweries and manufacture of cereal beverages.

2. That the plaintiff, on Nov. 3, 1928, possessed a Federal permit, conferring upon it powers and privileges as conferred by Pennsylvania permit in Fact 1.

3. That the aforesaid permit invested the plaintiff with the powers and privileges of engaging in the business of manufacturing cereal beverages containing less than one-half of 1 per cent, of alcohol by volume at its brewery or cereal beverage plant located on the southeast corner of North Main Street, Pittston.

4. That permittee, on or about Nov. 3, 1928, unlawfully manufactured and possessed on its premises cereal beverage or beer containing 4.56 per cent, by volume.

5. That the plaintiff, on or about the aforesaid date, possessed, placed and stored on its premises where cereal beverage is made, forty-six half-barrels of cereal beverage or beer containing over 4 per cent, of alcohol by volume.

6. That the permittee, at or about 7.45 P. M. on said date, loaded on and delivered to the truck on its premises, for transportation, forty-six half-barrels of cereal beverage or beer in excess of 4 per cent, of alcohol by volume; the said beer, so possessed, placed and stored on a truck on the brewery premises, was fit and capable for use for beverage purposes.

7. That the permittee failed to secure and attach labels to any of the containers on the truck on its premises containing cereal beverage or beer.

8. That Federal prohibition agents, Paul T. Hurley and Leo F. Durkin, on or about Nov. 3,1928, at or about 7.45 o’clock P. M., forced their entrance into the permittee’s brewery premises, which was locked, and took a sample of beer from the drain in the said racking-room which, upon being tested by the said agents on the premises with an ebullimeter, showed an alcoholic content of approximately 1.45 per cent, of alcohol by volume.

9. That on or about Nov. 3, 1928, Federal prohibition agents, Paul T. Hurley and Leo F. Durkin, took a sample of cereal beverage or beer from one of the forty-six half-barrels of beer in the truck on the permittee’s premises and a sample of the liquid in the drain in the racking-room of the said premises; placed .the same in clean bottles, poisoned to arrest fermentation, sealed, labeled and initialed by them and delivered same to Kenneth L. Proctor, Federal chemist, for analysis.

10. That the analysis made by Kenneth L. Proctor, Federal chemist, of the two samples of cereal beverage or beer showed an alcoholic content of 4.56 per cent, and 1.14 per cent, of alcohol by volume.

Discussion.

The agreement of counsel that the testimony adduced in proceedings to revoke permit be filed of record in this case “with the same force and effect as if the witnesses had personally appeared and testified,” was, in effect, treating the hearing before us as de novo.. Under the Act of Feb. 19, 1926, P. L. 16, on an appeal from an order of the Permit Board, the proceeding is de novo in the Court of Common Pleas (Kutz v. Pennsylvania Alcohol Permit Board, 296 Pa. 149); but where the only allegation raised on appeal is the abuse of discretion by the Permit Board, the parties in court need not treat the proceeding de novo, especially where there is submitted merely the report of the board, accompanied by transcript of the evidence before that body: E. & S. Motor Transportation Co. v. Pennsylvania Alcohol Permit Board, 295 Pa. 394.

On a hearing de novo under the Workmen’s Compensation Law, depositions taken before a referee may, by agreement of the parties, be accepted by the board as proofs in the case, either for the purpose of finding its own facts or formally adopting those found by the referee (McCauley v. Imperial W. Co., 261 Pa. 312); and the testimony upon hearing, or rehearing, or a hearing de novo, may be taken before the board itself, or for the.convenience and accommodation of the parties' before a referee, or even by depositions, as directed by the board, from which testimony the board, instead of the referee, makes the necessary findings and award: Davis v. Davis, 80 Pa. Superior Ct. 343.

However unsatisfactory it may be to treat this proceeding de novo, without the opportunity of seeing any of the witnesses, and only upon the bare records of the Federal Prohibition Administrator and) the Pennsylvania Alcohol Permit Board, we are obliged to consider it a de novo hearing, as agreed by counsel.

It appears that about 7.45 P. M., on Nov. 3, 1928, Paul T. Hurley, Federal prohibition inspector, and Leo F. Durkin, Federal prohibition agent, visited the premises of the plaintiff and entered the cooperage room. The former discovered an opening in the wall leading from the cooperage room to a garage adjoining, the latter being part of the brewery premises, and so designated in the permit. A truck loaded with forty-five half-barrels, unlabeled and filled with beer, which upon analysis showed an alcoholic content in excess of 4 per cent, by volume, was found in the garage. The racking-room was then entered and showed some indicia of recent usage. There were no employees present at the time of the raid.

One of the agents testified that on a previous inspection trip instructions were given to the plaintiffs to close the opening leading from the cooperage room to the garage, and assurance was then given that the hole would be sealed with bricks.

The plaintiff explains, or attempts to explain, the presence of the beer on the truck by the testimony of the truck driver, who was employed by the lessee of the garage and owner of the truck. It is rather significant the operator of the truck had a lapse of memory on important and controlling facts. He stated he secured the beer from a loaded car on Dock Street, Pitts-ton City, for a Mr. Stefango, whom he did not know personally and whose whereabouts were, and still are, unknown to him; that he had driven his ear to the garage to have it repaired before proceeding with the load of beer to Old Forge. Corroboration of testimony that the automobile had developed engine trouble was secured from Patrick Ruane. The latter, it may be noted, repaired all automobiles of the plaintiff concern.

As stated in the report of the Federal Administrator, “the defense wants the hearer to believe that the driver accidentally met this person about whom little is known; that his car broke down; that the one who fixes the cars for the brewery happily appeared at the psychological moment, and that the beer found belonged to this unknown person, and he alone was responsible for its presence in the garage;” . . . [and] . . . “that, even though the driver had his doubts about the legality of his acts, he placed enough confidence in this person, about whom he knew so little, as to accept his word that everything was all right.”

Again, the lessee of the premises by whom the truck driver was employed could not remember the name of the person with whom he negotiated in leasing the garage; nor did he notice any hole between the cooperage-room and the garage. As a matter of fact, he had a lack of knowledge inconsistent with two years’ occupancy of the premises.

We agree with the plaintiff that “we have not reached the stage in legal jurisprudence of our state and country when a suspicion, strong perhaps, has grown into a fact.” Nor can we ignore the inevitable inferences following from proven circumstances which forcibly reveal violations of prohibition enactments. Greater reluctance to draw logical inferences cannot be shown in this class than in other classes of cases; neither should we discard that conclusion from the evidence which strikes our mind with force and credibility and accept the unbelievable testimony and attempted explanations, tinged though they are with bias and incredulity.

Conclusions of law.

1. That all proceedings before the Pennsylvania Alcohol Permit Board were regular, and the said board has jurisdiction of the matters before it.

2. That the Pittston Beverage Company, on or about Nov. 3, 1928, unlawfully manufactured, possessed, placed and stored on their brewery premises and transported in barrels and half-barrels, cereal beverages or beer fit for use for beverage purposes containing from 1.14 per cent, to 4.56 per cent, of alcohol, by volume, and failed to label said containers in violation of the National Prohibition Act and the regulations promulgated thereunder, and conducted business contrary to the Act of March 27, 1923, P. L. 34, and its supplements, the Act of Feb. 19, 1926, P. L. 16, and the general rules and regulations promulgated by the Permit Board.

3. That the report of the Alcohol Permit Board, filed March 26, 1929, revoking appellant’s permit and forfeiting its bond, was based upon ample evidence, and should be affirmed.

Accordingly, now, March 27, 1930, the testimony and order of the Pennsylvania Alcohol Board, revoking the permit issued to the Pittston Beverage Company to engage in the business of manufacturing cereal beverages containing less than one-half of 1 per cent, of alcohol by volume, and forfeiting the bond given by the said plaintiff as principal and the American Surety Company of New York as surety, is affirmed, and the appeal is dismissed.

From Frank P. Slattery, Wilkes-Barre, Pa.


author: Fox, J.,

text:
    Commonwealth v. Stranger et al.

      Robert T. Fox, District Attorney, and E. Le Roy Keen, Assistant District Attorney, for Commonwealth.

      Metzger & Wickersham, for defendants.
    Feb. 3, 1930.
   Fox, J.,

— We have before us a rule to show cause why the search warrant should not be quashed and why the evidence illegally obtained should not be suppressed and not used against the defendants in the trial.

The petition for the rule in substance sets forth that the defendants reside at No. 674 Boas Street, in the City of Harrisburg; that on Aug. 6, 1929, five members of the Harrisburg police force entered the home of the petitioners without first having obtained a search warrant, as required by law, for the purpose of searching the petitioners’ premises; that after having entered the petitioners’ premises, the officers seized and confiscated one 6-quart bucket one-half full of liquor, four empty pint bottles, one small funnel and five glasses; that the said officers, at the time of entering the petitioners’ dwelling, had a John Doe search warrant calling for the search of the three-story brick dwelling house, with the appurtenances thereto attached, known as No. 676 Boas Street, Harrisburg, Dauphin County, Pennsylvania; that the search of the petitioners’ house was illegal by reason of the fact that the search warrant called for the search of No. 676 Boas Street and not No. 674 Boas Street.

An answer was filed by the district attorney, which in substance sets forth that one Glaser, one of the members of the Harrisburg police force, who conducted the raid aforesaid, will be able to prove at the trial that there was no number of a printed form on the house in question, but that there was written on the frame of the door the figures “676” in chalk; that on Aug. 5, 1929, at 6.45 P. M., he directed one Kugler to make a purchase of intoxicating liquor at the house of the defendants, telling the said Kugler to make the same “at the last house on the north side of Boas Street, going east from 6th Street, before you come to 7th Street;” that the said Glaser saw the said Kugler enter the alleyway to the said house for that purpose and saw him when he came out therefrom; that the said Glaser then took the said Kugler to Aider-man Hallman, of the City of Harrisburg, the same evening, where an affidavit was made by the said Kugler of thé purchase of the liquor at the said premises, stated at the time to be No. 676 Boas Street, after which a search warrant was issued by the said alderman for the search of No. 676 Boas Street; whereupon the raid was conducted by the aforesaid officers about 8.15 P. M. on the evening of Aug. 5, 1929, and not on Aug. 6, 1929, as stated in the petition for the rule; that the said Glaser looked for a number upon the said house at the time of the raid and found that there was no number on the house, except “676” in chalk; that the next adjoining property on the west was numbered “672,” and that there was no house between the premises in question and Seventh Street on the north side of Boas Street.

Depositions were taken which, by the testimony of several neighbors and the letter carrier who serves this district, show that there are no numbers on the house in question, but that there are chalk marks on the mail box corresponding to “674.” A deed to the defendants was also offered in evidence which discloses that the number of the house is “674.” Alderman Hallman testified that he asked Officer Glaser what the number of the house was, whereupon the said Glaser called the man on the beat, Officer Shoop, who told him it was “676;” the alderman then inserted the said number on the warrant, although the figures “674” were used in the complaint; he explains this discrepancy by saying that it probably was a typographical error; Officer Shoop also testified that the numbers on the mail box were 676.

An examination of the complaint for the search warrant discloses that the complainant, amongst other things, averred that the law was being violated in a dwelling house in the possession of and occupied by John Doe, “Alias,” said dwelling house being described as a three-story brick dwelling house, with the appurtenances thereto attached, known as No. 674 Boas Street. The affidavit of the search warrant discloses that it was issued to search the dwelling house occupied by and in possession of John Doe, “Alias,” as a dwelling house, and so used by him and described as a three-story brick dwelling house, with the appurtenances thereto attached, known as No. 676 Boas Street, Harrisburg, Dauphin County, Pa. A close examination of the complaint discloses that originally the number of the house inserted was “676,” and that an erasure was made, the figure 4 being written in typewriting instead of the 6 which was attempted to have been erased. As we have said, the number of the house mentioned in the search warrant was 676. It is quite obvious that in the complaint originally the number of the house as given was 676. This is the same change that is made in the affidavit by J. H. Kugler, upon which the warrant of arrest was based.

The testimony discloses that the defendants, whose names are James Stranger and Mary Stranger, occupied the premises known as No. 674 Boas Street; that there is no such number as 676. Search and seizure in our land must be executed with reasonable certainty and as the law prescribes. The changes in the affidavit of the complaint for the search warrant and the affidavit in connection with the information upon which the warrant of arrest was issued show that they were obviously made after the search warrant was issued, which was for No. 676 Boas Street. Irregularities of this kind should not occur. It is passing strange that the complaint upon which the search warrant was issued named the premises as No. 674 Boas Street and that the warrant should be issued for No. 676. The conclusion that the numerals 676 were in the complaint before and at the time the search warrant was issued for No. 676 is irresistible. If that be so, then there was no description either by the number of the house or by the occupier or possessor thereof, or any other means of identification which would justify the search of the house No. 674 Boas Street and the seizure of the contents thereof. Even though the wrong number had been mentioned or given in the complaint for the search warrant and also in the search warrant, if the premises to be searched had in any way been identified as the premises possessed and occupied by the defendant the warrant would have been good. There must be some identifying description. It is easy to mistake a number, but there are other means of identification than house numbers, and if such means are used, the mistake in house number is then readily cleared up, but where there are no other means of identification than the house number and that is an error, we see no authority for the officers to search a house other than the one mentioned in the complaint and the search warrant, and if the house so numbered does not exist, the search warrant is of no consequence.

Wherefore we are of the opinion that the search warrant having been issued for No. 676 Boas Street which does not exist, and without any identification whatsoever of No. 674 Boas Street or its possessors or occupiers, the search of No. 674 Boas Street was unwarranted and unlawful and the rule should be made absolute.

And now, Feb. 3, 1930, upon due consideration, the rule is made absolute and the evidence unlawfully obtained is hereby suppressed.

From Homer L. Kreider, Harrisburg, Fa.


author: Knight, J.,

text:
    Woolman School’s Application.

      D. Yeakle Miller, for petitioner.
    Sept. 18, 1929.
   Knight, J.,

— This is a petition by the Woolman School, a corporation, for authority to return a contribution of $10,000 to Mary W. Lippincott.

We gather from the petition the following facts: The Woolman School is a corporation of the first class and incorporated under the laws of Pennsylvania in 1918 for the purpose of promoting social and religious education.

Between the years 1918 and 1925, the corporation conducted a school at Swarthmore, Delaware County. In 1925, Mary W. Lippincott gave and conveyed to the corporation a tract of land at Wyncote, this county, and the school was removed to the new location. Shortly after the conveyance of the property referred to above, Mary W. Lippincott contributed to the said Wool-man School the sum of $10,000 to be held by the said school as part of its endowment fund, the income therefrom to be expended for general purposes of the school. The Wyncote property was found to be unsuited for school purposes and was sold by the corporation with the approval of Mary W. Lippincott for about $80,000, and the money is now held by the corporation and will be used for promoting social and religious education.

The officers of the corporation are now engaged in looking for another site for the school and expect to reopen the institution of learning in a new location in the fall of 1930.

Mary W. Lippincott has requested the corporation to return to her the sum of $10,000 which she contributed to the endowment fund, giving the following reasons for her request: Although no conditions were attached to the said contribution at the time it was made, it was the expectation of Mary W. Lippincott that the income of said gift of $10,000 would be used in the operation of a school on the property conveyed by her to the corporation and adjacent to her residence. The sale of said property and the removal of the school to another location has diminished the interest of Mary W. Lippineott in the said educational enterprise and it is her desire that her contribution to the said school shall not be greater than the proceeds of the sale of the property, totaling, as aforesaid, approximately $80,000.

The corporation is willing to accede to the request of Mary W. Lippineott and is willing to return the said sum of $10,000 if such return can lawfully be authorized by this court.

Assuming that we have the authority to authorize a repayment to Mary W. Lippineott, still we are of the opinion that the prayer of the petition must be denied.

“The education of youth and the support of schools are for the advancement of public good, and money given for such purposes was recognized in England as given for a charitable use before the statute of 43 Elizabeth. Our own courts have uniformly held the same doctrine:” Episcopal Academy v. Philadelphia et al., 150 Pa. 565; 11 Corpus Juris, 316.

The Woolman School is a corporation not for profit, it has no shares of stock, no private or pecuniary return is reserved to any person or class of persons, but all the benefit of the educational enterprise goes to the public.

To this corporation Mary W. Lippineott made a gift of $10,000 to be held as part of its endowment fund, the income to be used for the general purpose of the school, to wit, the promotion of social and religious education.

The gift, then, of Mary W. Lippineott was to a public charity and for a charitable use.

The corporation having accepted the gift holds it in trust for the purpose for which it was given. It cannot release this trust, nor can the donor withdraw the gift: 11 Corpus Juris, 371; McKissick v. Pickle, 16 Pa. 140; Jones v. Renshaw, 130 Pa. 327; Humane Fire Co.’s Appeal, 88 Pa. 389; Potts v. Philadelphia Ass’n, 8 Phila. 326; Mercer Home, Fisher’s Appeal, 162 Pa. 232.

This is not the case of a charity which has ceased to exist or a charitable use that has failed. Even in such a case the money would not revert to Mary W. Lippincott, but to the Commonwealth: Act of May 23, 1895, P. L. 114; Mercer Home, Fisher’s Appeal, supra.

When Mary W. Lippineott made her gift of $10,000 to the Woolman School she attached no conditions to it other than it was to become a part of the endowment fund of the educational enterprise, and this condition has been complied with. The fact that her expectations were not fulfilled or her hopes realized does not entitle her to receive her money back or justify the corporation in repaying it to her.

Mary W. Lippineott has been most generous to the Woolman School and under the circumstances we .can sympathize with her request just as we can appreciate the motives which' move the officers of the corporation in their desire to comply with it. But when Mary W. Lippineott donated the sum of $10,000 to the Woolman School, she dedicated it irrevocably to a charitable use. It is no longer hers to receive back or the corporation’s to give away. It can only be used for the purposes for which it was given.

It follows that the prayer of the petition must be refused and the petition dismissed.

And now, Sept. 18, 1929, the petition is dismissed.

From Aaron S. Swartz, Jr., Norristown, Fa. ,


author: Patterson, P. J.,

text:
    J. E. Harshbarger Dairy v. Hoover.

      Robert J. Puderbaugh, for plaintiff; Robert A. Henderson, for defendant.
    Dec. 5, 1929.
   Patterson, P. J.,

— This is a bill in equity for an injunction restraining the defendant from engaging, directly or indirectly, in the milk business in the County of Blair on a route which he formerly served as an employee of plaintiff, and from soliciting the trade, patronage and customers of the plaintiff for one year, said bill averring that Kenneth Hoover, a former driver and salesman in the employ of the said plaintiff, entered into a written agreement with the plaintiff which provided that he, the defendant, would continue in the employ of the said plaintiff for a period of one year at a weekly salary, and that during said period the defendant, contrary to said agreement, established a business of his own and fraudulently and wrongfully solicited trade and patronage on milk routes which he had served as driver and salesman for plaintiff. Defendant, by his guardian ad litem, filed an answer, setting forth that said defendant was a minor at the time of his employment, and also at the time of the filing of this bill, and was, therefore, not bound by said contract in writing.

Findings of fact.

1. That the plaintiff, J. E. Harshbarger, trading and doing business as J. E. Harshbarger Dairy, since and prior to the year 1924, has been engaged in the sale and delivery of milk at retail to his customers in the City of Altoona. That some time during the year 1924, the defendant, Kenneth Hoover, who is a minor, secured employment as a salesman and delivery-man on one of the routes of the plaintiff in said city and continued in this employment until Oct. 4, 1928.

2. That on March 5, 1928, plaintiff and defendant executed an agreement in writing. Said agreement provided that defendant would perform certain services as salesman and delivery-man on Route No. 1, in Blair County, for a period of one year, at a weekly compensation of $20, and said agreement further provided as follows: “The party of the second part [the defendant], in consideration of the salary heretofore agreed to be paid, further agrees not to engage, directly or indirectly, in a competitive business or to be employed by any person engaged in a competitive business within the term covered by the route or routes of which he may have had charge while in the employ of the party of the first part [the plaintiff] or within three squares of same for a term of one year immediately after his employment under this contract shall have ceased.”

8. That on Oct. 4, 1928, defendant ceased to be an employee of the plaintiff and thereupon entered into business for himself in selling and delivering milk in the City of Altoona, part of his territory being within the route which he had followed during the time he was in the employ of the plaintiff.

4. That a preliminary injunction was issued by this court upon the presentation of plaintiff’s bill, and the bill was served upon Kenneth Hoover in person. George Hoover, the father of the defendant, was appointed guardian ad litem by the court, and he appeared and filed an answer for the defendant.

5. That the matter came before the court on bill and answer and was orally argued. It was stipulated at that time that plaintiff should file a demurrer to defendant’s answer and written briefs should be furnished the court by counsel for the plaintiff and counsel for the defendant.

Discussion.

There is, therefore, but one question for our consideration at this time, and that is, Is such a contract as the one in this ease binding upon a minor who executed the same in his own writing? The law seems to be well settled in Pennsylvania that a person under the age of twenty-one years cannot make and execute such a contract. While it is true that there are eases by our appellate courts holding that infants are liable on their contracts for necessaries, we find numerous decisions to the effect that minors are not liable on any other form of contract. This rule of law has been laid down in Ruchizky v. De Haven, 97 Pa. 202; Shaw v. Boyd, 5 S. & R. 309.

“If there has been no deception, one who deals with a minor is helpless; even if the minor sells the goods, the dealer cannot recover their value:” Yubas v. Witaskis, 95 Pa. Superior Ct. 296; Frank Spangler Co. v. Haupt, 53 Pa. Superior Ct. 545; Kay v. Haupt, 63 Pa. Superior Ct. 16.

It has been held repeatedly by the Supreme Court that when it appears that judgment is entered upon a warrant of attorney signed by a minor, the judgment will be stricken off: Knox v. Flack, 22 Pa. 337; Allen v. Krips, 119 Pa. 1, 5; McClellan v. Pomeroy, 75 Pa. 410, 412.

In the case of Knox v. Flack, supra, the Supreme Court said: “This is a judgment entered on a warrant of attorney against a minor. ... It is of no manner of importance what were the circumstances under which the bond was given, for the warrant is clearly void, and the judgment ought to have been vacated on the infancy being shown.”

Conclusions of law.

It appearing that Kenneth Hoover, the defendant, was a minor at the time he executed the written agreement with the plaintiff, dated March 5, 1928, and that he continued to be a person under the age of twenty-one years at the time of the filing of this bill, he was not bound by the covenant in said agreement which provided that he should not enter into the business of selling and delivering milk, either for himself or for any other person or persons,' on the route that he had formerly sold and delivered milk while in the employ of the plaintiff.

That the injunction should be dissolved and the bill dismissed, at the cost of the plaintiff.

Decree nisi.

Now, therefore, it is further adjudged and decreed that the bill of injunction heretofore granted is hereby dissolved, and the bill in equity filed by plaintiff is hereby dismissed, at the cost of the plaintiff. This decree to be entered as a decree nisi, and the prothonotary to give ten days’ notice to the counsel representing the respective parties hereto, and if no exceptions be filed, the same to become the final decree of this court. If exceptions are filed, the same shall be placed on the argument list as provided by the Equity Rules.

From Robert W. Smith, Hollidaysburg, Pa.


author: Stearne, J.,

text:
    Laverelle’s Estate.

      Roland R. Foulke, trustee, pro se.

    June 27, 1930.
   Stearne, J.,

— An Orphans’ Court examiner appointed under section 46 (b) of the Fiduciaries Act of 1917 discovered that this trustee kept the trust res in his individual safe deposit box at a trust company. The res consists of unregistered coupon bonds. They are contained in an envelope with the name of the estate endorsed thereon. The examiner required the trustee to remove the securities from this box and replace them in a separate safe deposit box in his own name, as trustee for this estate. This the trustee refused to do, whereupon the examiner petitioned the court for an order, which order was granted, the entry of which is the subject of the present exception.

We are not persuaded, despite the strenuous and eloquent argument of exceptant, that this court is without jurisdiction to make the order concerning which he complains. He has argued — to employ his own words — that he may, if he so chooses, keep the securities upon his front porch. We are unanimous in the opinion that his contention is without merit. To employ a somewhat homely simile, we are quite as much interested in seeing to it that the stable door is locked and the horse kept safely as we are in corrective and punitive measures after the horse has been stolen.

We freely concede that a trustee may illegally abstract assets from the box maintained in his own name, as trustee, quite as readily as he could by taking the securities from his individual box. On the other hand, either through accident or design, the envelope may become worn, dilapidated, or it may entirely disappear; the markings or writings on the envelope, in time, may fail to remain decipherable; the rubber bands surrounding the envelope may become hard and brittle and disintegrate, or the tape or string with which they are tied may break or disappear. In such event, the securities, unearmarked, may become commingled with those which the trustee may individually own. Should the trustee die under such circumstances, it may become impossible or difficult to segregate the trust securities from those of his own. Or should the trustee become insolvent, a contest with creditors may arise and jeopardize the trust assets. Furthermore, should a trustee keep assets in his individual box, his executor, on his death, may assume custody. Thus, securities come into possession of a stranger to the trust and without bond. Where, however, the box is in the name of the fiduciary as trustee, the appointment of a substituted trustee is requisite before access may be had to the box. This is an added protection to the trust estate. In our opinion, it is quite as reprehensible for a trustee to commingle trust (unregistered) securities with his own as it is to keep the cash of the estate in his own individual bank account.

This court possesses and has always exercised its visitorial and supervisory powers over the custody of a trust estate. Our specific statutory authority, if any need be quoted, may be found in the Orphans’ Court Act of 1917, section 9 (b), which gives f;o this court the control of trustees of the estates of decedents. The Fiduciaries Act of 1917, section 46 (b), provides for the appointment of examiners to make “periodical or special examinations of the assets of estates in the hands of fiduciaries.”

Neither the Auditing Judge nor the court en banc questions the honesty or the integrity of Mr. Foulke, the trustee. We feel, however, that he is mistaken in the position which he has assumed. Under the circumstances, we are of. opinion that the order was wisely and properly made. The exceptions are dismissed.