author: Rossiter, P. J.,

text:
    Morton v. United Hardware and Supply Company.

      Pleadings and process — Service — Sheriff’s return — Seal of the court— Conclusiveness of return.

    1. A sheriff’s return will not be set aside on the ground that the writ served did not contain the seal of the court, where the summons returned by the sheriff contains a seal and the return states that the sheriff served a true and attested copy on defendant.
    2. In the absence of fraud, a sheriff's return, full and complete on its face, is conclusive upon the parties and cannot be set aside upon extrinsic evidence.
    Rule to set aside sheriff’s return. C. P. Erie Co., Feb. T., 1927, No. 381.

      W. B. Seabrook, for plaintiff.

      J. M. Sherwin and W. S. Caroll, for defendant.
    June 15, 1927.
   Rossiter, P. J.,

Summons in assumpsit was issued in the above entitled case, which was returned: “January 18, 1927. Served this writ upon the within named defendant, United Hardware and Supply Company, by handing a true and attested copy of this writ to C. M. Turner, Manager, and making contents thereof known to him, at 915 State St. So answers, Thomas Garfield Sterrett, Sheriff.”

The defendant, after obtaining leave to appear de bene esse, filed a motion to set aside the service of the writ, “for the reason that the writ served upon United Hardware and Supply Company, which is hereto attached, did not contain the seal of the Court of Common Pleas of Erie County, Pennsylvania.”

An inspection of the summons attached to this motion discloses that the seal referred to does not appear thereon. The summons, however, returned by the sheriff does contain the seal and the sheriff returns that he not only served a true and attested copy thereof on the manager of the defendant, but that he made known the contents thereof to him.,

It has long been the rule, and has uninterruptedly been held, that, in the absence of fraud, a sheriff’s return, full and complete on its face, is conclusive upon the parties and cannot be set aside upon extrinsic evidence: Park Bros. & Co. v. Oil City Boiler Works, 204 Pa. 453, 458; Benwood Iron Works v. Hutchinson, 101 Pa. 359; Diller v. Roberts, 13 S. & R. 60; Ben Franklin Coal Co., Ltd., v. Pennsylvania Water Co., 25 Pa. Superior Ct. 628; Flaccus Oak Leather Co. v. Heasley, 50 Pa. Superior Ct. 127; Keystone Telephone Co. v. Diggs, 69 Pa. Superior Ct. 299; Miller Paper Co. v. Keystone C. & C. Co., 267 Pa. 180.

Here, there is no fraud alleged, the sheriff’s return is full and complete upon its face, and even if the summons could be set aside on extrinsic evidence, there is no extrinsic evidence offered. All that we have before us is the motion to set aside the service with the copy of the summons attached, and that C. M. Turner says that it is the copy that was served upon him. It would be establishing a dangerous precedent to take the word of every defendant as against a sheriff’s return, and this is the reason, probably, that the law is as above quoted.

The rule, therefore, granted Feb. 7, 1927, to show cause why the service of the summons should not be set aside is now, June 15, 1927, discharged.

From Otto Herbst, Brie, Pa.


source: Caselaw Access Project

author: Groff, J.,

license: Public Domain

text:
    McLain, Executor, v. Hinden.

      Husband and wife — Joint ownership of mortgage — Interest—Survivorship.
    A mortgage given to a husband and wife jointly is held by entireties with survivorship, and where the wife dies, her executor cannot recover* from the mortgagor one-half of the interest due up to the time of her death, as the ownership of the mortgage and all that was due upon it survived to the husband.
    Affidavit of defense raising question of law. C. P. Lancaster Co., Nov. T., 1927, No. 28.

      Harold G. Ripple, for plaintiff; John E. Malone, for defendant.
    Dec. 31, 1927.
   Groff, J.,

In this case, Charles F. McLain, the executor of the last will and testament of Caroline Hinden, who died Dec. 24, 1926, and who was granted letters testamentary in due course on said estate, brought suit in the Court of Common Pleas* of Lancaster County to No. 28, November Term, 1927, to recover one-half of the interest due on a* certain mortgage dated Nov. 9, 1925, and recorded in the Recorder of Deeds Office in and for Lancaster County in Mortgage Book 277, page 204, for $9500, it being a lien against the premises No. 602 North Queen Street, Lancaster, Pa.

The mortgage was made and executed by Clarence B. Hinden and Lottie M. Hinden, his wife, to Frank X. Hinden and Caroline Hinden, his wife. The first instalment of interest was due, according to the pleadings, on Nov. 9, 1925 — forty-five days prior to the death of Caroline Hinden, whose executor is the plaintiff in this suit. The amount claimed is $427.49, one-half of the interest due on the aforesaid mortgage at the time of Caroline Hinden’s death.

The defendants, under section 20 of the Practice Act of May 14, 1915, P. L. 483, filed their affidavit of defense, raising the three questions of law, viz.: 1. The statement of claim sets forth no cause of action. 2. The statement of facts relied upon by the plaintiff shows clearly that the plaintiff, the personal representative of a deceased wife, has no right to recover on a chose in action which was held by the husband and wife as tenants by entireties. 3. The statement of claim does not aver that Frank X. Hinden, husband of Caroline Hinden, predeceased his wife, and, without this averment, plaintiff, the personal representative of the wife, cannot recover.

The statement does not clearly state, but it was conceded on the argument of the case, that Frank X. Hinden was the' husband of Caroline Hinden and that he survived his said wife.

The mortgage, according to the pleadings, was executed to Frank X. Hinden and Caroline Hinden, husband and wife, and a tenancy 'by entireties, or an ownership by entireties, was, therefore, created in them as husband and wife.

“A tenancy by entireties arises whenever an estate vests in two persons who are, at the time when the estate vests, husband and wife. It may exist in personal as well as real property, in choses in action as well as in choses in possession:” Bramberry’s Estate, 156 Pa. 628; Klenke’s Estate (No. 1), 210 Pa. 572.

In the latter case, the husband and wife had a deposit in bank in their joint names, and they held by entireties and not by moieties, and upon the death of the one, the survivor took the whole.

And, again, in Bramberry’s Estate, above recited, it was held that where “a conveyance of land to husband and wife in consummation of their joint purchase of it during coverture vests in them an estate by entireties, and when on a sale of the land so held they take in their joint names a mortgage for the purchase money, the presumption is that they intend to hold the mortgage as they did the land.”

Therefore, there seems to be no doubt but that Frank X. Hinden and Caroline Hinden held the mortgage referred to in the estate and on which the interest is due as owners by entireties.

In Gasner v. Pierce et al., 286 Pa. 529, a case recently decided, it was held that a tenancy by entireties is an interest held by the husband and wife together so long as both live, and, at the death of either, by the survivor so long as the estate lasts. There is but one estate, and in contemplation of law it is held by but one person. Such interest, arising by the unity of person, has not been abolished or affected by the Acts of April 11, 1848, P. L. 536; June 3, 1887, P. L. 332; June 8, 1893, P. L. 344; May 24, 1923, P. L. 446, and May 13, 1925, P. L. 649. Neither husband nor wife in whom property has jointly-vested as an estate by entireties can sell or assign their individual rights therein without the joining of the other or dispose even of the expectancy of survivorship, and creditors of either acquire no enforceable lien by obtaining judgment or title by sale in execution.

And, in the same case, it was held that where the husband and wife owned property jointly, and the property was rented by the husband to a tenant, and the wife collected the rents, that the rent was properly paid and discharged, she having had a right to receive the whole of it, and that the proper disposition of the money paid in such case is a matter for determination between the husband and1 wife, but the party owing the rent is relieved from further obligation when he has paid to the wife.

If the defendants in this case have paid the interest to Frank X. Hinden, the surviving joint owner of the mortgage, they are absolutely discharged from further payment of the same, and if they have not so paid the interest, all moneys due on the mortgage belong to the survivor of the tenancy or ownership by entireties, that is, the present owner of the mortgage, and they are obliged to pay the same to him.

There is, therefore, no obligation to pay the interest sued for to the plaintiff in this suit.

We sustain the contention of the defendants and decide the question of law in their favor and enter judgment in favor of the defendants and against the plaintiff. From George Ross Eshleman, Lancaster, Pa.


author: Taulane and McDevitt, JJ.,

text:
    Townsend v. Frost et al.

      Wills — Trusts and trustees — Active and passive trusts — Life-tenant— Remainderman — Distribution of principal.

    !• In Pennsylvania a trust to divide and distribute! is not an active trust, inasmuch as it serves no purpose that could not be equally served without it.
    2. Where a testator gives his estate to a trustee to pay the income therefrom in certain ways designated, and upon the death of his last surviving child “to make partition, allotment and division” of the principal, consisting of real and personal property, to persons designated, the trust ceases to be an active trust upon the death of the last surviving child of the testator.
    3. In such case, the nature of the trust is not in any way affected by the use of the words "partition” and “allotment;” nor is the word “division” modified or its meaning limited by the use of the word “allotment,” nor is the trust affected by a gift to the trustee of "all necessary powers, and authorities, interests and estates in the premises.”
    4. If any portion of the residuary real estate under such a will cannot be divided equally among the parties, the trustee has no power to sell and divide the proceeds; hence, any of the former cestms que trust may maintain a bill in equity to partition the real estate.
    5. The right to partition is an incident of ownership in common, and parties should not be deprived of their right in the absence of some compelling reason.

      Res judicata — Parties—Assignees of parties.

    6. Where two of several defendants in an equity suit are neither served with process nor appear by counsel, and no decree is entered against them, neither they nor their subsequent assignees are bound by any decree entered in such suit.
    7. A judgment to be a bar to another suit for the same cause of action must be not only a final judgment, but entered in a proceeding where the rights of parties have been adjudicated.
    8. Where such a suit has been dismissed as to some of the defendants and subsequently the suit has been withdrawn, the defendants against whom no decree was entered cannot subsequently in a later case avail themselves of the decree of dismissal entered in the former suit against some of the defendants only.

      Partition — Land subject to outstanding lease.

    9. The fact that land owned by tenants in common is subject to an outstanding lease is no ground for defeating partition.
    Bill in equity. C. P. No. 1, Phila. Co., Dec. T., 1926, No. 2685.

      Franklin S. Edmonds and Frederick C. Newbourg, Jr., for plaintiff.

      John Wintersteen and Thos. Raeburn White, for defendants.
    Oct. 11, 1927.
   Taulane and McDevitt, JJ.,

The hill is for the partition of certain real estate which vested in the issue of the children of the late Henry G. Freeman under the terms of his will.

The answers deny the right to partition on two grounds, viz., (a) that the title to the real estate in question is still vested in the trustee of the will of the said Henry G. Freeman under an active trust, and (b) that the plaintiff, the nominee of The Real Estate Trust Company, is bound by a decree of the Court of Common Pleas No. 4, wherein The Real Estate Trust Company was a party, which dismissed a former bill for the partition of the real estate of the said Henry G. Freeman on the ground that it was still held by his trustees under an active trust.

The late President Judge Bartlett heard the testimony and died before he had an opportunity to prepare an adjudication. All parties in interest have agreed that the matter may be disposed of by McDevitt and Taulane, JJ., with the same effect as if the testimony had been taken before them.

Requests for findings of fact and conclusions of law have been presented by counsel, and the questions of law involved have been argued at length by counsel before McDevitt and Taulane, JJ.

Frederick C. Newbourg, Jr., Esq., and Franklin Spencer Edmonds, Esq., appeared for the plaintiff, and Hon. Hampton L. Carson for Fidelity-Philadelphia Trust Company, trustee under the will of Henry G. Freeman, Jr., deceased; Thomas Raeburn White, Esq., for Isobel F. Frost and Charles W. Frost; John Wintersteen, Esq., for Girard Trust Company, trustee under the will of Helen F. Brewster, deceased; Joseph Hj Grubb, Jr., Esq., for The Real Estate Trust Company of Philadelphia; and Albert S. Longbottom, Esq., for Minnie Freeman Lee, defendants.

From the pleadings and proofs, the court make the following findings of fact and conclusions of law:

Findings of fact.

1. Henry G. Freeman died on Feb. 15, 1875, having first made and published his last will and testament, dated Feb. 11, 1874, and two codicils thereto, dated, respectively, July 14, 1874, and Jan. 26, 1875, which said will and codicils since his death were duly probated before the Register of Wills of Philadelphia County and registered in Will Book No. 83, page 403.

2. True copies of said will and codicils are attached to the bill.

3. Henry G. Freeman died seized, inter alia, of premises Nos. 1346 and 1348 Chestnut Street and No. 109 South Broad Street, in the City of Philadelphia, more particularly described as follows: . . -

4. Subsequent to the death of the said Henry G. Freeman, his estate acquired title to a portion of the bed of a certain four feet wide alley between premises Nos. 1346 and 1348 Chestnut Street, and more particularly described as follows: . . .

5. The above-described four pieces of land are the subject-matter of this proceeding and constitute and form the southeast corner of Broad and Chestnut Streets, having a frontage on Chestnut Street of 42 feet and a depth along Broad Street of 124 feet, the rear 20 feet on Broad Street has a depth at right angles to Broad Street of 83 feet.

6. By lease dated Aug. 2, 1897, the Girard Trust Company, trustee under the will of Henry G. Freeman, deceased, by virtue of a decree of the Orphans’ Court of Philadelphia County (Freeman’s Estate, 181 Pa. 405), demised the above described four pieces of land for the term of fifty years upon improvement lease plan to Henry G. Freeman, Jr., who, on the same day, transferred and assigned said lease to The Real Estate Trust Company of Philadelphia.

7. True copies of the said lease and assignment are attached to the bill.

8. There was erected on the above-described four pieces of land a seventeen-story office building, which was completed in 1898, and from that time until 1903 it was used and operated as a complete and independent building.

9. In 1903, The Real Estate Trust Company of Philadelphia erected an addition to said office building on a lot it owned on the south side of Chestnut' Street, with a frontage of 61 feet, immediately adjoining to the east the said four above-described pieces of ground, and on a portion of said four pieces of ground now already built on.

10. In 1911, The Real Estate Trust Company of Philadelphia erected another or second addition to said office building on a lot it owned on the south side of Chestnut Street with a frontage of 22 feet.

11. The said seventeen-story office building with the two additions are used and operated together as one building, and as a unit are assessed for taxation for the year 1927 at $4,000,000.

12. Henry G. Freeman left him surviving a widow, Eliza Freeman, long since deceased, and the six children named in his will, to wit, William H. Freeman, Elizabeth Freeman Ashburner, Charles D. Freeman, N. Chapman Freeman, James Black Freeman and Caroline Sophia Schultz, all of whom, in the order named, have died. Caroline Sophia Schultz, the last survivor of said children, died on May 30, 1923. Thereafter, Girard Trust Company, as trustee under the will of Henry G. Freeman, filed in the Orphans’ Court of the County of Philadelphia its fourth account, which was duly confirmed. Pursuant to the adjudication thereon, all of the assets of the residuary estate of said decedent have been fully and finally distributed to the parties entitled, saving and excepting only the real estate which is the subject-matter of this proceeding, a tract of wild land in Clinton County, Pennsylvania (said to contain 3991 acres, and which is of little, if any, value), one share of Woodlands Cemetery stock, six lots in Woodlands Cemetery, six lots in West Laurel Hill Cemetery, and one lot in St. Mary’s Cemetery. This final distribution of the residuary estate of the decedent was begun June 6, 1924, and was not completed until Oct. 10, 1924. The complainant herein, Edward Y. Townsend, has no interest in said tract of wild land or in said cemetery lots.

13.As a result of the various devolutions of title set forth in the bill and in the amendment to the bill, which was allowed June 10, 1927, which devolu-tions are not disputed, title to the real estate which is the subject-matter of this proceeding is vested in the following persons and in the following proportions :

Edward Y. Townsend, the complainant................. 62/1800
The Real Estate Trust Company of Philadelphia.........1431/1800
Fidelity-Philadelphia Trust Company, trustee under the will of Henry G. Freeman, Jr...................... 135/1800
Girard Trust Company, trustee under the will of Henry F. Brewster...................................... 46/1800
Isobel F. Frost........................................ 60/1800
Minnie Thompson Lee.................................. 66/1800

14. No partition or division of the real estate which is the subject-matter of this proceeding has ever been made.

15. The bill for partition instituted by Gavin Braekenridge and Helen Mac-Nab in the Court of Common Pleas No. 4, to March Term, 1924, No. 11393, was filed on May 20, 1924, and prayed for partition not only of the real estate here involved, but also of a yearly ground rent of $4050 issuing out of land situate at the southeast corner of Walnut and Cama'e Streets and a tract of wild land in Clinton County, Pennsylvania.

16. At the time the bill in Court of Common Pleas No. 4 was filed, the residuary estate of Henry G. Freeman, deceased, consisted of real and personal property and was then undistributed.

17. The first distribution of the residuary estate of Henry G. Freeman, deceased, was made on June 6, 1924, and the last on Oct. 10, 1924, and all his residuary estate has been distributed except the real estate here involved and the land in Clinton County, Pennsylvania.

18. The bill in Court of Common Pleas No. 4 named twenty defendants, including the Girard Trust Company, trustee under the will of Henry G. Freeman. On Aug. 4,1925, the said bill was dismissed as to five only of these twenty defendants, to wit, Girard Trust Company, trustee under deed of Florence F. Brinton; Girard Trust Company, trustee under deed of May V. Brinton; Beatrice E. Freeman; Girard Trust Company, trustee under will of Henry G. Freeman; and The Real Estate Trust Company of Philadelphia. No. order or decree was entered as to the other defendants, except that as to Fidelity Trust Company, trustee under the will of Henry G. Freeman, Jr., deceased, an order was entered striking off the exceptions filed by it and giving leave to it to plead, answer or demur.

19. Of the twenty defendants named in the bill in Court of Common Pleas No. 4 and prior to the decree of dismissal of Aug. 4, 1925, only five filed answers or demurrers, and only twelve (including the five just mentioned) appeared by counsel (and there is nothing.which shows that any more of the defendants had then been served with process). One of these twelve had filed a disclaimer of interest. Of the remaining eight defendants, six, to wit, Emilie S. Blois, Eliza F. Cuffe (Duchesse de Pleneuf), Matilda Dusuzeau, Morris Mendelson, Marcia B. Winton and Girard Trust Company, trustee under the will of Helen F. Brewster, appeared by counsel after the decree of Aug. 4, 1925, and the other two, to wit, Lina Vessillier and Katie H. Smith, never appeared and were never served with process. Of the six who appeared after the decree of Aug. 4, 1925, at least one, Matilda Dusuzeau, from whom the complainant in this proceeding purchased an interest in the property which is the subject-matter of this proceeding, filed neither answer nor demurrer and no order or decree was entered against her.

20. The complainants in said bill appealed to the Supreme Court from the five decrees dismissing the bill, but subsequently abandoned their appeals and the whole proceedings, as is shown by the judgments of non -pros, entered as to all five appeals and by the withdrawal on April 21, 1926, of the petition for an order of service on the unserved defendants.

21. All of the deeds and assignments to The Real Estate Trust Company of Philadelphia which were made prior to the filing of the bill in Court of Common Pleas No. 4 and prior to Oct. 10, 1924, covered the interest of the respective grantors or assignors in the entire residuary estate of Henry G. Freeman, deceased. All of the deeds to The Real Estate Trust Company of Philadelphia which were made after Oct. 10, 1924, covered only the interest of the respective grantors in the premises which are the subject-matter of this proceeding.

22. The Real Estate Trust Company of Philadelphia was a party of record in the case in Court of Common Pleas No. 4 and there opposed partition on the ground that the parties to the proceeding did not possess legal title to the property involved. The bill in Court of Common Pleas No. 4 included the real estate here involved as well as other real estate.

23. The plaintiff is the grantee of and now owns the interests of Matilda Dusuzeau and Lina Vessellier under the will of Henry G. Freeman, deceased, in and to the four above-described pieces of land constituting the southeast corner of Broad and Chestnut Streets. He has no other interest in the residuary estate of the said Henry G. Freeman, deceased. Matilda Dusuzeau was named as a party defendant to the bill in the Court of Common Pleas No. 4. She was not served with process and did not file an answer or demur. Counsel entered an appearance for her on Nov.' 91, 1925, some months after the decree dismissing the bill as to five defendants only. No order or decree was entered against her, and the entire proceeding for partition was subsequently abandoned.

24. Lina Vessellier, though named as a party defendant, was not served with process and she did not appear by counsel or otherwise.

25. Plaintiff acquired said interest of Lina Vessellier on Dee. 17, 1926, and said interest of Matilda Dusuzeau on Dec. 1, 1926.

26. The plaintiff holds his said interests in the premises described in the bill as nominee or trustee for The Real Estate Trust Company of Philadelphia, one of the defendants.

27. The plaintiff’s amendment of his bill in the case in Court of Common Pleas No. 4 was filed on Oct. 27, 1925, subsequent to the decrees dismissing the bill, and was never acted upon by the court.

Discussion.

This case raises two questions, viz.:

(at) Is the trust under the will of Henry G. Freeman to divide and partition his residuary estate upon the death of all his children an active or passive trust?

(b) Is the decree of Court of Common Pleas No. 4 in a former partition proceeding res judicata, in this case?

(A) Is the trust active or passive?

Henry G. Freeman gave his residuary estate to the Girard Trust Company in trust to pay the income to his wife (now deceased) for life, and at her death he provided: “Then in trust to divide the net income and proceeds of said estate as received by said Trustees into six equal parts, and to pay one of the said six parts to each of my four sons, William Henry, James B., Charles and Chapman, and to each of my two daughters, Elizabeth, wife of T. A. Ashburner and Caroline Sophia the wife of Martin Schultz during their several and respective natural lives.”

Upon the death of any of his six children, he provided for the distribution of the income of the one so dying as follows: “In trust from and after the death of either of my sons or daughters and until the death of all of them to pay the income which he or she would, if living, have received to such person or persons of kin to such son or daughter as he or she may by will have appointed and in default of such appointment to the child or children of such son or daughter that may then be living, or the issue of any child or children of such son or daughter that may then be dead, leaving issue, in equal shares equally, as however that such issue shall take per stirpes only a parents share and if there be no children or issue of such son or daughter then such person or persons as would take from through or under me had I lived until then and died intestate.”

Upon the death of the last survivor of his six children, he directed his residuary estate to be distributed as follows: “In trust when and so soon as the longest liver of them my said sons and daughters shall be dead, to make partition, allotment and division of my entire estate, real and personal to and amongst the persons receiving or entitled to the income thereof immediately prior to such death, by virtue of the previous clauses of this my will, and the persons who under the said clauses would be entitled to the income of the share of the said longest liver, at his or her death according to their several and respective rights, shares, interests and estates in said income, and they my said Trustees shall according to said partitions, allotment and division by good and sufficient deeds, conveyances, assurances, transfers and assignments vest in each of said persons absolutely in fee to him, or her, his or her heirs, executors, administrators and assigns, the title to his or her purpart, share or allotment in severalty and to enable them my said Trustees so to do I hereby give them all necessary powers and authorities, interests and estates in the premises.”

Henry G. Freeman’s last surviving child died on May 30, 1923, and the persons entitled to share in the residuary estate of the said Henry G. Freeman, as recited in the bill, had vested interests therein at the time of the death of said last surviving child (Freeman’s Estate, 282 Pa. 206).

The trustee under the will of Henry G. Freeman has distributed through an account in the Orphans’ Court and a decree thereon all the residuary estate of the said Henry G. Freeman to the parties entitled, except the real estate, which is the subject of this partition, some 300 acres of unimproved land in Clinton County, Pennsylvania, and some cemetery lots.

The plaintiff has no interest in the unimproved land in Clinton County or in the cemetery lots, his interest being limited to an undivided share of the real estate at Broad and Chestnut Streets.

No one questions that the trusts under the will of Henry G. Freeman were active ones until the death of his last surviving child.

Does the direction to the trustee to divide and partition the residuary estate to those entitled in remainder involve the performance of such active duties as will keep the trust alive beyond the period fixed for distribution?

If the trust be still active, the full legal title to the land is still vested in the trustee, and the trustee is still entitled to receive the rents. There is no doubt that the trustee’s right to receive the rents of the real estate ceased upon the death of the last surviving child.

In Bacon’s Appeal, 57 Pa. 504, where the will directed the trustee to convey the residuary estate to the remaindermen upon the death of the life-tenant, Strong, J., said: “As already noticed, the codicil directs that the titles shall be held by the trustees in trust to receive and pay over the income during the life of each daughter and of her husband, if he should survive her, and then the portion of each to be conveyed to the right heirs of the daughter in fee simple. No other duties toward the remaindermen are prescribed than to convey to them. The trustees were not to receive the income and pay it over to them. They were not at liberty to hold a single hour for the use of those in remainder. At most, they were but the conduit through which the title was to pass.”

So, in the case at bar, the will gives the trustee no authority to receive or collect a dollar of rent after the death of the last surviving child. To retain legal title in the trustee would be for no purpose of management or conservation of the residuary estate or for the protection of the beneficiaries, but only to make a division which the parties could do better themselves, either amicably or by proceedings in partition.

Whatever the law may be elsewhere, it is well settled in this State that a trust to divide and distribute is not an active trust, for the very simple reason that the trust serves no purpose that could not be equally served without it.

In Bispham’s Equity (10th Edition), 100, it is said: “The other departure of the Pennsylvania doctrine from the English rule is that, in some cases where in England the trust would not be executed (e. g., where there is a mere trust to convey), the severance of the legal and equitable titles will not be considered to exist and the legal fee will be treated as having passed to the beneficial owner. ‘It is true that we have in some cases decreed conveyances from a trustee to a cestui que trust when the purpose of a trust has been fulfilled, but this was not because the legal and equitable titles remained apart. It was to dissipate a useless cloud upon the title and make the property more marketable.’ ”

In Pepper’s Estate, 30 W. N. C. 288, the testator appointed executors and gave his residuary estate to trustees to distribute among his beneficiaries in certain proportions. It was held that the trust was a dry one, and the court ordered the executors to distribute directly to the beneficiaries.

In Carter’s Estate, 225 Pa. 355, the will provided: “When my said two grandchildren shall respectively attain the age of twenty-one years, then in trust to pay, assign and convey to each of them the one-half part of the said one equal eighth part of my said residuary estate, so as aforesaid directed to be held in trust for them respectively, and the accumulation' of the income thereof.”

When the two grandchildren became of age, they filed a petition for partition of the real estate before the trustee conveyed to each of them a half interest of one-eighth of the residuary estate. In sustaining the right to partition, the court said: “Having attained their majority, the title to the real estate vested in the two grandchildren absolutely, and they now hold a fee simple title to the undivided one-eighth part of the real estate of their grandfather. If no other provision of the will prevented partition, it is clear that either or both of the grandchildren would be entitled to have an inquest awarded. It is claimed, however, that the right to demand partition is taken away by the fact that the will directs the executor to make division of the estate. This position, however, is not tenable and is directly in conflict with the decision of this court in Rawle’s Appeal, 119 Pa. 100. There, the testator directed his executors to divide the residuum of his estate into five parts, one of which he gave to each of his five children, providing that on the death of any of his children, the children of the deceased child should receive its parent’s share. This court held that ‘the alienee of the interest of a minor child of a deceased child of the testator in the land devised to its mother was entitled to have partition in the Orphans’ Court, notwithstanding the directions to the executors to divide the estate into parts.’ The correctness of this ruling was recognized in the more recent case of Caldwell v. Snyder, 178 Pa. 420.”

In Caldwell v. Snyder, 178 Pa. 420, 424, Sterrett, C. J., said: “Thus it was held- in Rawle’s Appeal, 119 Pa. 100, a direction to executors to ‘divide’ did not exclude partition by the devisees themselves; and in Sheridan v. Sheridan, 136 Pa. 14, a power given executors to sell, ‘if they found it necessary to do so in order to make a fair and equitable division of the estate.’ ”

In Chamberlain v. Maynes, 180 Pa. 39, 43, Mitchell, J., said: “It is true the deed gives the trustee a power of partition or of sale in case partition could not be made without spoiling the whole, but, as already said, this was only to be exercised when Mary Reilly should be desirous of selling, or when the youngest child of Susan Maynes should reach the age of twenty years and partition or sale and distribution of proceeds was desired. The power in the trustee did not depend on his judgment and was not an essential part of the trust which would keep it alive against the will of the cestui que trust, but was merely ancillary and for convenience of administration. When Mary Reilly or her grantee chose to terminate the trust and treat the title as vested in law, the mere incidental authority of the trustee to make partition when it should be desired by the cestui que trust cannot be allowed to stand in the way.”

The trust to divide in the Freeman will is, in the language of Mitchell, J., “merely ancillary and for the convenience of administration.”

The trust in the Freeman will amounts to nothing more than a mere direction to divide, and the authorities we have quoted clearly show that a trust to divide is a dry or passive trust.

The nature or character of the Freeman trust is not in any way affected by the use of the words “partition” and “allotment.”

Partition is defined in Black’s Dictionary, 876, as follows: “The dividing of lands held by joint tenants, copartners or tenants in common into distinct portions, so that they may hold them in severalty. And, in a less technical sense, any division of real or personal property between co-owners or co-proprietors.”

Any division of an estate necessarily implies its partition. Therefore, the meaning of the word “division” was not modified or in any way qualified by using the word “partition.” Moreover, as the residuary estate consisted of both real and personal property, it is quite clear that the word “partition” was used in no other sense than division.

Again, the word “division” is not modified or its meaning limited by the use of the word “allotment.” Allotment is defined in Black’s Dictionary, 61, as follows: “Partition, apportionment, division.”

Dividing an estate among several persons necessarily implies the allotment of the shares; in fact, there can be no division of an estate without an allotment. It is clear, therefore, that the word allotment is used in its popular sense of transferring a part of something that has been divided, and this is particularly true when we consider that the residuary estate included both real and personal property.

It is true the last words of the trust are: “I hereby give them (trustee) all necessary powers and authorities, interests and estates in the premises.”

If the trustee has power to divide the residuary estate among the parties, it has implied power to execute the necessary documents to make the transfer. Nothing was added to the power of the trustee by the use of the words just quoted. If any portion of the residuary estate cannot be divided equally among the parties, the trustee has no power to sell and divide the proceeds. The trust, nevertheless, would be a dry one if the trustee has a discretionary power to sell to make the division: Sheridan v. Sheridan, 136 Pa. 14.

Though the last surviving child died in 1923, the trustee has never attempted to exercise its authority to divide the residuary estate. Practically the entire residuary estate has been distributed by the decree of the Orphans’ Court. The only remaining asset of value is the real estate, the subject-matter of this suit. It is a single property and could not be divided among the parties in interest. The trustee has no authority to sell it and divide the proceeds among the parties. The only thing the trustee could do would be to give deeds to the several parties for their respective undivided shares. If this be all the trustee could do, it is quite clear the trust is a dry one, because such a deed from the trustee would put the parties in no better position than they are now.

The right to partition is an incident of ownership in common, and parties should not be deprived of this right in the absence of some compelling reason: Caldwell v. Snyder, 178 Pa. 420, 422.

We are quite clear that the trust to divide and partition is a dry trust and that the parties have such a title as enables them to file a bill for partition.

We are unable to follow the opinion of Court of Common Pleas No. 4, that the trust in question is an active trust, unless the case before Court of Common Pleas No. 4 could be distinguished from the one before us on the ground that a different statement of fact was presented to Court of Common Pleas No. 4.

(B) Is the decree of Court of Common Pleas No. 4 res judicata?

The plaintiff is the assignee of Matilda Dusuzeau and Lina Vessellier, both of whom were named as parties defendant in the proceedings in the Court of Common Pleas No. 4. Lina Vessellier was neither served with process nor appeared by counsel. An appearance by counsel was entered for Matilda Dusuzeau' subsequent to the entry of the decree dismissing the bill as to five of the defendants. No order or decree was entered against either Matilda Dusuzeau or Lina Vessellier, and eventually the partition proceeding in Court of Common Pleas No. 4 was abandoned.

Neither Matilda Dusuzeau nor Lina Vessellier is bound or in any way affected by anything done in the former partition proceeding. The plaintiff stands in their shoes, and if they are not bound by any decree in that case, neither is the plaintiff: Posten v. Posten, 4 Wharton, 26; Allen v. Union Bank, 5 Wharton, 420; Kauffelt v. Leber, 9 Watts & Sergeant, 93; Lightner’s Estate, 187 Pa. 237; Colton v. Smith, 11 Pickering (Mass.), 311; Perrine v. Kohr, 205 Pa. 602.

Surely either Matilda Dusuzeau or Lina Vessellier could have instituted the present partition proceeding without being precluded by any decree in the former partition proceeding.

The Beal Estate Trust Company was one of the defendants in the case in the Court of Common Pleas No. 4 and it may be bound by the decree entered in that case as to the shares of the real estate in question it then owned and any other shares it subsequently acquired from persons likewise bound, but neither The Beal Estate Trust Company nor the plaintiff, its nominee, is bound by that decree as to any shares acquired from persons not precluded by that decree. This being so, it makes no difference whether the plaintiff or The Beal Estate Trust Company be the plaintiff in the present case. No rule of law or public policy would be infringed by the plaintiff or The Beal Estate Trust Company in acquiring the shares of persons not precluded by the decree of the Court of Common Pleas No. 4, though the shares were acquired for the admitted purpose of instituting the present proceedings and avoiding the decree in the former proceedings.

We have grave doubts whether the decrees entered by the Court of Common Pleas No. 4 are res judicata as to any of the parties to this proceeding. A judgment to be a bar to another suit for the same cause of action must be not only a final judgment, but entered in a proceeding where the rights of the parties have been adjudicated.

Some twenty persons were parties defendant in the case in Court of Common Pleas No. 4, but decrees dismissing the bill were entered against five only of the defendants, the court saying: “The foregoing statement explains in brief the reasons for the dismissal of the bill so far as concerns those defendants on whose demurrer or answer argument was heard. As to the other defendants, the case is not in such a position that a decree may be entered for its final disposition.”

At the time the decrees of dismissal were entered, some of the defendants had not been served and later the entire proceeding was abandoned by the plaintiff withdrawing the order granting leave to serve defendants residing without the State.

No decree was ever entered for or against any of the defendants now before us except The Beal Estate Trust Company. We are quite confident that the present defendants, other than The Beal Estate Trust Company, could not avail themselves of the decrees of dismissal entered in favor of The Beal Estate Trust Company and four of the other defendants in the proceeding in Court of Common Pleas No. 4.

If the defendants now objecting to partition had themselves instituted the proceeding, it is obvious that The Beal Estate Trust Company could not have pleaded res judicata against them. If this be so, it is equally clear that the objecting defendants could not plead res judicata against The Beal Estate Trust Company or the present plaintiff.

The outstanding lease which will not expire until 1947 is no obstacle to partition (Mayer’s Estate, 17 Dist. R. 677), and neither is the fact that the original seventeen-story office building now erected on the land, which is the subject of the present partition, is used in connection with the two additions later built and now owned by The Real Estate Trust Company. The office building as built on the land in question could be separated from the additions and used as an office building.

The manner in which the office building is now used may limit the number of persons who would bid at the sale, but that is no reason why the parties are not entitled to partition. If the parties objecting to partition will be at a disadvantage in realizing the best price for their interests, it is due primarily not to the lease or the arrangement of the building, but to the fact that many of the parties in interest have seen fit at this time to realize on their investment instead of waiting until the expiration of the lease when all the improvements on the devised land would pass, without cost, to the Freeman heirs.

Conclusions of law.

1. The interests of the parties plaintiff and defendant in the real estate described in the bill are vested.

2. The trust in the will of Henry G. Freeman, deceased, to partition and divide his residuary estate is a dry or passive trust.

3. The title of the plaintiff and defendants to the land described in the bill is such as enables the plaintiff to file his bill for partition.

4. The decrees entered by the Court of Common Pleas No. 4 in the former partition proceeding are not res judicata in this proceeding.

5. The plaintiff is entitled to partition of the lands described in the bill.

6. The parties in interest and their respective shares are set forth in the findings of fact.

The parties have filed requests for findings of fact and conclusions of law which are filed herewith with the answers thereto.

Decree.

And now, to wit, Oct. 11, 1927, upon consideration of the-foregoing case, it is ordered, adjudged and decreed:

1. The plaintiff is entitled to partition of the lands described in the bill.

2. The matter is referred to--, Esq., as master, to partition the land described in the bill according to the practice in equity.

And now, to wit, Oct. 11, 1927, the prothonotary is directed to notify the parties of the filing of this adjudication, and, unless exceptions are filed thereto within ten days, a final decree will be entered in accordance therewith.


author: Thompson, J., Van Düsen and Stearne, JJ.,

text:
    Schwartz’s Estate.

      Decedent’s estate — Widow’s exemption — Desertion — Separation by consent.

      1. A widow’s claim for exemption will not be refused on the ground that at the time of her husband’s death they were living apart by mutual consent where it appears deceased left her and refused to return at her request, stated to a third person he did not want to see her any more, and started a proceeding for divorce, and she obtained an order against him for support.
    2. The mere fact that it further appears that husband and wife met frequently and he gave her money in lieu of the court order does not amount to consent on her part to the separation, in the absence of proof that he offered to return or that the separation was through fault of hers.
    Exceptions to adjudication. O. C. Phila. Co., Oct. T., 1925, No. 3214.
    Van Dusen, J., Auditing Judge, said:

      “The widow claimed the $500 exemption. I find that the husband and wife had not been living together for some time before his death and that the family relation did not exist between them. The wife obtained an order for support from the Municipal Court, which was modified and later revoked. She met her husband regularly on the street, received money from him with fair regularity, and sometimes spent the night with him at her sister’s. From these facts I find that the separation was consentable: Olson v. Olson, 27 Pa. Superior Ct. 128; Braum’s Estate, 86 Pa. Superior Ct. 245 (also 88 Pa. Superior Ct. 109 and Superior Court Advance Reports of Oct. 14, 1927, page 225); Stauffer’s Estate, 89 Pa. Superior Ct. 531; Pohlig’s Estate, No. 2113, July Term, 1926; Holcomb’s Estate, No. 3575, October Term, 1924; Foscola’s Estate, No. 80, January Term, 1927. The claim is rejected.
    “The widow also claimed her $5000 allowance. The existence of the family relation is not necessary here, and the burden is on the objector to show that the separation was a wilful and malicious desertion by the wife. The fact has been found otherwise, and the claim is allowed: Arnout’s Estate, 283 Pa. 50; Braum’s Estate, 88 Pa. Superior Ct. 109 (see, also, other citations of same case, supra).”

      Jacob Hoffman, for exceptions; Clinton Rogers Woodruff, contra.
    May 28, 1928.
   Thompson, J.,

The first exception relates to the refusal of the Auditing Judge to allow the widow of the decedent her exemption, of $500, said refusal being based on the fact that the domestic relation did not exist at the time of the death and that the claimant and the decedent were living apart under circumstances which the Auditing Judge thought amounted to a consentable separation. In this conclusion we think the Auditing Judge was in error.

We have read the testimony with care, and from the same it appears that the claimant and decedent lived together for three years after their marriage, and the separation took place in 1921 or 1922 by the decedent leaving their common home under circumstances which claimant testifies as follows (page 7) :

“Q. Can you tell the circumstances under which he left you? A. He wanted to keep on running with Bloch — this fellow here (indicating a person in the court-room) — Wolffe and a gentleman named Kahan. Q. Did he leave at night or in the morning or in the afternoon? A. In the morning; packed his suit-case and went. Q. What did you do? A. I went to the Municipal Court later. I went and asked him to come home and he did not want to. I went to the Municipal Court and the judge asked him if he wouldn’t go home and he says No, he didn’t want to. Q. And he refused to do it? A. Yes.”

A disinterested witness testified that the decedent, speaking of the claimant, said as follows (page 27) :

“Q. Did you ever hear Mr. Schwartz say that he had been to see Mrs. Schwartz? A. No. He said the year after he was sick with an operation — he says he didn’t want to see her any more, and he went to a lawyer for a divorce and he said, “I have seen her on Market Street, and I have run away because I paid in for a divorce.”

No further reference to a divorce proceeding appears in the testimony.

The testimony further shows that the claimant obtained an order of support against the decedent in the Municipal Court, which order was subsequently modified and never enforced, for the very good reason that after the same was obtained, decedent met claimant on the street once a week and gave her sufficient money to live on, at which times he occasionally took her to the theatre, to supper, and occasionally spent the night with'her. From the testimony it clearly appears that the decedent did not object to occasionally seeing his wife under the circumstances above mentioned, but nowhere does it appear that he ever offered to come back to her. It does not appear that claimant repeatedly asked the decedent to resume their domestic life together. Apparently she was satisfied that when she did ask him to come back and he refused and continued to support her, that was the best she could get under the circumstances. A constant nagging at him to return to her might have resulted in his refusal to support her, and the claimant made the best of the circumstances as above outlined, and while it is true that decedent was not living with claimant at the time of his death, it was through no fault of hers. He deliberately left her, and, although he supported her, she asked him to come back and he refused to do so.

The third, fourth, fifth, sixth and seventh exceptions relate to the allowance of claims against the decedent’s estate. The Auditing Judge was abundantly justified by the evidence in allowing these claims, and exceptions three to seven, inclusive, are, therefore, dismissed.

The eighth exception relates to the action of the Auditing Judge in finding that the decedent was survived by certain next of kin in addition to his wife. As the decedent died intestate and without issue, and as the $500 exemption and the $5000 allowance, together with the claims allowed, leave no fund for distribution among the next of kin, we will not further discuss this exception and the same is, therefore, dismissed pro forma and -without prejudice.

The first exception is, therefore, sustained and the adjudication modified accordingly, and as modified is confirmed.

Van Düsen and Stearne, JJ.,

dissenting. — The .right to the exemption depends upon the existence of the family relation at the time of death; but there is an exception where husband and -wife are not living together through the husband’s fault. The husband’s fault is such conduct on his part as would entitle the wife to a divorce at the time of hisi death: Crawford’s Estate, 81 Pa. Superior Ct. 222; Braum’s Estate, 86 Pa. Superior Ct. 245.

The husband in the case at bar originally deserted the wife; but thereafter she permittéd a Municipal Court order for support to be revoked by agreement, continually met her husband on the street by appointment, regularly received money from him for support, and sometimes spent the night with him at her sister’s house. The parties drifted into a position where the separation was consentable; and the wife was not entitled to a divorce or her exemption.


author: Hicks, J., Bechtel, P. J.

text:
    Weaver v. Reinhart et al.

      Ejectment — Demurrer—Practice, C. P. — Pleading.
    In the absence of anything to the contrary in a rule of court or in the Acts of May 8, 1901, P. L. 142, and June 2, 1915, P. L. 887, a defendant in ejectment has a right to file a demurrer to plaintiff’s statement, abstract of title and claim for mesne profits.
    Rule to strike off demurrer and for judgment in favor of plaintiff and against defendants. C. P. Schuylkill Co., July T., 1926, No. 116.

      J. O. Ulrich, for plaintiff and rule.

      R. J. Graeff and D. J. Boyle, for defendants, contra.
    Feb. 6, 1928.
   Hicks, J.,

This is an action in ejectment which was so proceeded in that a judgment by default was entered against the defendants and in favor of the plaintiff on July 26, 1926, and which judgment was opened on Jan. 3, 1927. Subsequently, a claim for mesne profits was filed by the plaintiff, and thereafter, on Jan. 29, 1927, the defendants filed their demurrer to the plaintiff’s declaration, abstract of title and claim for mesne profits. On Jan. 31, 1927, a motion was made by the plaintiff to strike off the demurrer for the reason that the filing- of a demurrer is not provided for by rule of court or act of assembly in cases of ejectment. On May 2, 1927, the court, by Hon. H. O. Bechtel, P. J., in an opinion filed, discharged the rule to show cause why the demurrer should not be stricken off. On Jan. 16, 1928, a rule was granted upon the application of the plaintiff to show cause why the demurrer should not be stricken off and judgment entered in favor of the plaintiff for the premises described in the declaration and abstract of title, and also for the sum of $19,583.55, with interest from Jan. 17, 1927. Although there are nine reasons set out in the motion to strike off the demurrer, the real reason, restated frequently in different verbiage, is the lack of warrant in law for the filing of a demurrer in a case of ejectment. Upon the argument, counsel for the defendant contented himself with a reference to the former opinion of this court by Hon. H. O. Bechtel, P. J., rendered upon a like motion to strike off the demurrer in this case, while counsel for the plaintiff argued the same propositions advanced upon the former motion. However interesting a further discussion of this matter may be, and of whatever interest the individual opinion of the writer may be as to the matters still disputed, the conclusion is irresistible that the opinion of the court heretofore filed in this ease, May 2, 1927, is conclusive not only upon the writer of this opinion but upon the parties in litigation. The former rule to strike off the demurrer having been discharged because, in the opinion of court, a demurrer as a pleading in this case is regular, the present rule must be discharged.

Whether the demurrer ought or ought not to be sustained in law was not within the scope of the arguments nor within the comprehension of the rule, which was a rule to strike off the demurrer because of lack of legal warrant for filing it. If the demurrer is not legally sufficient and its overruling indicated, such question must be decided in another argument and not upon a motion to strike off, such as was filed and argued in this case under the circumstance of aif opinion already filed more than six months ago by this court discharging such rule.

The rule to show cause why the demurrer filed in this case, should not be stricken off and judgment entered in favor of the plaintiff and against the defendants is discharged.

The opinion of Judge Bechtel referred to was as follows:

Bechtel, P. J.

It is not necessary for the purposes of this opinion to recite the entire history of this case, which is .quite lengthy. Suffice it to say that a judgment taken by plaintiff was opened by this court Jan. 3, 1927. Thereupon the defendant filed a demurrer setting forth numerous reasons why the plaintiff proceedings were illegal and not in accordance with practice relating to ejectment cases. Attorney for plaintiff, Jan. 31, 1927, moved to strike off the demurrer for the reason that the filing of a demurrer is not provided for by rule of court or act of assembly in cases of ejectment. This is the sole question now before us and the only one which we are deciding.

Counsel for plaintiff rests his contention upon the authority of Pew v. Minor, 216 Pa. 343. We do not think that this question was decided in that case.

Counsel for defendant rely upon the case of McConologue v. Satowizch et al., 21 Dist. R. 845, and Jennings v. Maley, 261 Pa. 485, in each of which cases a demurrer was sustained, although the question as to the right to file the same was not specifically raised before the court. Ejectment is a pos-sessory action, and the method of procedure is governed by the Acts of May 8, 1901, P. L. 142, and June 2, 1915, P. L. 887. These acts are silent as to the right of the defendant to file a demurrer. We have been unable to find anything in the rules of court either forbidding or authorizing the filing of a demurrer in actions of ejectment. In 19 Corpus Juris, 1128, art. 137, it is said: “Where a declaration or complaint is so defective that it fails to state facts sufficient to constitute a cause of action, a demurrer lies.”

It also sets forth a number of other cases in which a demurrer is the proper remedy. In 15 Cyc., 107, art. 2, it is also set forth that a demurrer is the proper remedy. It would seem, therefore, that the right to file a demurrer in actions of ejectment has been recognized and approved by the best authorities on pleading and practice. We are of opinion that defendant has the privilege of filing a demurrer in an ejectment case. We are not deciding in this opinion anything as to the sufficiency of the demurrer filed or the right to raise the questions sought to be raised by it.

The rule to show cause why the demurrer filed in this case should not be stricken off and why judgment should not be entered in favor of the plaintiff and against the defendants is herewith discharged.

From M. M. Burke, Shenandoah, Pa.


author: Williams, P. J.,

text:
    Commonwealth v. Cox.

      Criminal law — Driving automobile while intoxicated — Evidence—Witness against self■ — Physical examination — Medical expert — Constitutional law.

    1. Where a person charged with driving an automobil^ while under the influence of intoxicating liquor voluntarily submits himself to a physical examination by a medical expert, such expert, after subjecting the defendant to the usual tests, may testify that in his opinion the defendant was under the influence of intoxicating liquors at the time of his arrest.
    2. Such testimony does not contravene the ninth section of the first article of the Constitution which provides that “in all criminal prosecutions the accused cannot be compelled to give evidence against himself.”
    3. The constitutional provision only protects a person from any disclosure sought by legal process against him as a witness, but does not include his body as evidence when that is material.
    4. The constitutional provision is a limitation only upon the action of an officer of the State, or some person acting by authority of a State officer and under his direction, or of a person acting under color of authority from the Commonwealth.
    5. It does not apply to the action of a private individual, although a practicing physician, or a petty officer like a township constable proceeding without, above and beyond State authority and possessed of no color of State right.
    6. The constitutional provision may be waived by consent of the person accused, express or implied.
    7. Where an accused voluntarily submits to a physical examination by a medical expert, he waives his constitutional right and cannot object at his trial to the testimony.of the expert based on the examination to the effect that the accused was under the influence of liquor at the time of the examination.
    Motion of defendant in arrest of judgment and for new trial. Q. S. Montgomery Co., Nov. Sess., 1926, No. 26.

      George C. Corson, Assistant District Attorney, for Commonwealth.

      Francis J. Walsh and Albert J. Taylor, for defendant.

      Oct. 28, 1927.
   Williams, P. J.,

Jesse Cox, the defendant, having appealed from the order of the first day of last July overruling his motion in arrest of judgment and for a new trial, dismissing all the reasons supporting the motion, refusing a new trial and denying an arrest of judgment — the reasons for which order do not appear of record — and from the judgment of sentence on the twenty-third day of last month imposed upon him, the court herein files of record, in compliance with Rule Fifty-eight (58) of the Superior Court, at least a brief statement of the reasons for such order in the form of an

Opinion.

Immediately after sensible conviction by a jury of the defendant for a violation of that part of the second paragraph of the twenty-third section of the Act of June 30, 1919, P. L. 678-701, 692, which says that “No person shall operate a motor vehicle while under the influence of intoxicating liquor,” he moved, by his counsel and in writing, both for a new trial and in arrest of judgment because, first, the verdict had been against the law; second, against the evidence; and, third, the court had erred in admitting the testimony of Dr. Fine. Although the trial judge, in entertaining the motion and ordering it on the next argument list — where, in due course, the motion was heard by the court in bane — and in directing the transcription and filing of the notes of testimony and the charge, had granted the defendant leave, within Ten (10) days after such transcription and filing, to assign additional written reasons in support of the motion, no new reasqn was ever so assigned. To the contrary, at the argument, the first and second reasons were practically abandoned by the defendant’s counsel^ who pressed only the third reason.

At the trial, Dr. Walter E. Fine, a graduate of the Hahnemann Medical College, of the city and county of Philadelphia, and, ever since 1904, a continuous practitioner of medicine in the borough of Ambler, this county, testified, on behalf of the Commonwealth, that, between Seven (7 P. M.) and Eight (8 P. M.) o’clock in the evening of Sunday, the seventeenth day of October, 1926, John T. Camburn, constable of the township of Whitpain, this county, had brought the defendant to the office of the witness; that, then and there, he had seen the defendant walk with unsteady gait, had detected the odor of alcohol upon his breath and had heard him so incoherently speak and mumble his words that, at times, the physician could hardly understand the defendant; that the doctor had submitted to the defendant, first, the test of standing up with eyes closed and hands and toes together, whereupon the defendant swayed; second, the ocular test and thereby found the mucous membranes covering the outer surfaces of the eye-balls and the inner surfaces of the eye-lids of the defendant much inflamed; and, third, the test of closing his eyes and bringing the index finger of his right hand to his nose, to which test the defendant reacted with such great negation that not only did he usually miss his nose but often he could not find even his cheek; that, in consequence of the observation of the defendant by the physician and his conversation with the former and as a result of the tests, the witness felt himself qualified to express an opinion as to whether the defendant had or had not been under the influence of intoxicating liquor; and that, at the time of the examination of the defendant, he had been under such influence.

On cross-examination, Dr. Fine swore, also, that when the defendant had come to the office of the witness, he knew the defendant was under arrest; that the physician had not told the defendant anything he might say or do could later be used against him; and that, without the tests, the doctor would not have been able to say the defendant had been under the influence of intoxicating liquor: wherefore, it is contended by counsel for the defendant that all of the testimony of Dr. Pine should have been excluded from consideration by the jury on the ground that, at the time of the examination, the witness having failed to inform the defendant whatever he should do might be employed adversely against him at subsequent trial, the constitutional privilege of the defendant had been violated in that he was compelled to be a witness against himself. In other words, the sole contention of the defendant is that the admission of the evidence of Dr. Fine was in derogation of that part of the ninth section of the first article of the Constitution of our Commonwealth which provides that “In all criminal prosecutions the accused . . . cannot be compelled to give evidence against himself,” the manifest purpose of which provision, in conferring upon every citizen the personal privilege of remaining silent whenever it appears reasonable his testimony or declaration might result in self-incrimination, Commonwealth v. Bolger, Appellant, 42 Pa. Superior Ct. 115, 121, was to prohibit the compelling of self-incriminating testimony. In Re Adjudication of Contempt of Myers and Brei, 83 Pa. Superior Ct. 383, 388.

At once it is to be noted that what is prohibited by the constitutional clause under discussion is the compelling of an accused to give evidence against himself, that the object of the so-called right organically declared is to secure for the defendant freedom from compulsion of disclosure of self-incriminatory testimony, that the personal privilege recognized by fundamental law is a protection to one charged with the commission of crime only in that he cannot be “compelled” to incriminate himself.

To compel — as is signified by the Latin derivation, compellere, from con, together, and pellere, to drive, i. e., to drive together — is to urge with irresistible force; and, hence, is to oblige, to necessitate, to constrain, to coerce, to subdue, to force, to yield; or to exact, to extort, to seize, to wrest, to take by violence; or to overcome, to overpower, to subjugate.

Compel is synonymous with force. To force is to constrain, to do by the exercise of an overwhelming power, as soldiers are forced to submit to their conquerors, or slaves are forced to labor by their masters; to do violence to, as females are forced in common law rape; to get, impel or obtain by main strength; to take by struggle; to capture by assault; to storm; to strain; to exert to the utmost; to produce by excessive, unnatural or untimely pressure or action.

Compulsion, instantly suggestive of might in opposition to impotence. and of obligation as opposed to volition, means forcible inducement to the commission of an act and involves the setting in motion of power and the actual application of strength by one followed by the doing of an act requiring fulfillment and affording no alternative by another, who acts contrary to his will.

In the instant case, the record fails to show, even out of the mouth of him who had the greatest interest in the result of the trial,'that the defendant was urged with irresistible force to accompany the township constable to the office of Dr. Fine, or that, there, the defendant was forced to walk, or was obliged to talk to the physician or answer his questions, or was coerced into closing his eyes, or into placing the tips of his fingers upon the ends of his toes, or into allowing the doctor to see the hot and irritated conjunctiva, or into attempting to swing the right index finger toward the organ of smell. There is no evidence of constraint or necessitation on the part of the defendant; no testimony that he was violently impelled to speak or take the tests applied by Dr. Fine; nothing to show that either the words or acts of the defendant were exacted, extorted or wrested from him after he had been overcome, overpowered or reduced to a state of subjugation. In short, there was no forcible inducement to the utterance of any word spoken or to the commission of any act done by the defendant in the office of the physician. On the other hand, so far as the record discloses, every word spoken and every movement made by the defendant in the office of the doctor -was a voluntary utterance and a free-will act said and done without the preceding application of violence to and without the requirement of fulfillment by the defendant at a time when he was afforded full alternative of silence and inaction.

Since, then, the examination by Dr. Fine of the defendant was not against his consent but, quite to the opposite, he took the tests voluntarily and, in his own defense at trial, related what had transpired at the giving of the examination without once intimating or suggesting anything said or done there by him was against his volition, Commonwealth v. Gressley, 12 Lehigh County Law Journal, 169, 170, 9 D. & C. 803, and since, therefore, the defendant was not compelled to give evidence against himself, the order of July 1 was entered and the sentence of September 23 was imposed.

Had an appeal not been taken, this opinion might well rest here, but, inasmuch as the case is to be reviewed, further discussion may not be out of place.

In the seventeenth century, the English courts adopted, as a rule of evidence, the Latin maxim “Nemo tenetur seipsum accusare,” 8 R. C. L. 77, the underlying principle of which has been adopted as the fundamental law of the land, Note, 69 L. R. A. 465, for the Constitution of the United States declares that no person shall be compelled in any criminal case to be a witness against himself, Boyd v. United States, 116 U. S. 616. It is well to remember, however, that such immunity does not exist in Pennsylvania by virtue of any part of the Federal Constitution, Twining v. State New Jersey, 211 U. S. 78, and that the quasi right, — born as it was in abhorrence to confessions wrung by inquisitorial torture a thousand times more .terrible than the punishment for the crime confessed, Cooper v. State, 6 So. 110,—while not merely a formal technical rule enforceable or unenforceable at the discretion of the court but a mandatory, constitutional provision securing something substantial and of value to every defendant, Gillespie v. State, 115 Pac. 620, is, after all, nothing more than a statement in form of organic law of the common law rule of evidence and guarantees no greater privilege than that in every criminal case the accused shall be free from compulsion by legal process to give self-incriminating testimony, State v. Fuller, 85 Pac. 369.

“Looking back at the history of the privilege and the spirit of the struggle by which its establishment came about, the object of the protection seems plain. It is the employment of legal process to . . . extract from the person’s own lips an admission of his guilt, which will take the' place of other evidence. Such was the process of the ecclesiastical Court, as opposed through two centuries, — the inquisitorial method of putting the accused upon his oath, in order to supply the lack of the required two witnesses. Such was the complaint of Lilbum and his fellow objectors, that he ought to be convicted by other evidence and not by his own forced confession upon oath.

“Such, too, is the inference from the policy of the privilege as a defensible institution; . . . that is to say, it exists mainly in order to stimulate the prosecution to a full and fair search for evidence procurable by their own exertions, and to deter them from a lazy and pernicious reliance upon the accused’s confessions.

“Such, finally, is the practical requirement that follows from the necessity of recognizing other unquestioned methods of procuring evidence; for if the privilege extended beyond these limits, and protected an accused otherwise than in his strictly testimonial status, — if, in other words, it created inviolability not only for his physical control of his own vocal utterances, but also for his physical control in whatever form exercised, then it would be possible for a guilty person to shut himself up in his house, with all the tools and indicia of his crime, and defy the authority of the law to employ in evidence anything that might be obtained by forcibly overthrowing his possession and compelling the surrender of the evidential articles, — a clear ‘reductio ad absurdum.’

“In other words, it is not merely any and every compulsion that is the kernel of the privilege, in history and in the constitutional definitions, but testimonial compulsion. The one idea is as essential as the other.

“The general principle, therefore, in regard to the form of the protected disclosure, may be said to be this: The privilege protects a person from any disclosure sought by legal process against him as a witness.” Wigmore on Evidence, Second Edition, Volume 4, Section 2268, pages 863-4.

The object of the constitutional provision was to prohibit the compulsory oral examination of prisoners before and upon trial for the purpose of extorting unwilling confessions or declarations implicating them in crime. The provision can reach farther only in exceptional and peculiar cases coming well within the purpose of the inhibition. A murderer may be taken by force before his dying victim for identification and then, upon trial, the dying declaration of the victim may be proven for the identification of the defendant; a thief may be examined forcibly and the stolen property may be taken from his person and brought into court for his condemnation; the person of a prisoner may be examined against his will for marks and bruises and then, upon trial, they may be proven to establish his guilt; and it would be stretching the constitutional inhibition too far to make it cover such cases and the inhibition thus applied would greatly embarrass the administration of justice. People v. Gardner, 144 N. Y. 119, 128.

Not only then was the defendant not ■compelled to give evidence against himself but what, if anything, he gave against himself was not evidence within the meaning of Section 9, supra.

“If an accused person were to refuse to be removed from the jail to the court room for trial, claiming that he was privileged not to expose his features to the witnesses for identification, it is not difficult to conceive the judicial reception which would be given to such a claim. And yet no less a claim is the logical consequence of the argument that has been frequently offered and occasionally sanctioned in applying the privilege to proof of the bodily features of the accused.

“The limit of the privilege is a plain one. Prom the general principle . . . it results that an inspection of the bodily features by the tribunal or by witnesses cannot violate the privilege, because it does not call upon the accused as a witness, i. e., upon his testimonial responsibility. That he may in such cases be required sometimes to exercise muscular action — as when he is required to take off his shoes or roll up his sleeve — is immaterial — unless all bodily action were synonymous with testimonial utterance; for, as already observed, not compulsion alone is the component idea of the privilege, but testimonial compulsion. What is obtained from the accused by such action is not testimony about his body, but his body itself. Unless some attempt is made to secure a communication, written or oral, upon which reliance is to be placed as involving his consciousness of the facts and the operation of his mind in expressing it, the demand made upon him is not a testimonial one. Moreover, the main object of the privilege ... is to force prosecuting officers to go out and search and obtain all the extrinsic available evidence as an offense, without relying upon the accused's admissions. Now in the case of the person’s body, its marks and traits, itself is the main evidence; there is ordinarily no other or better evidence available for the prosecutor. Hence, the main reason for the privilege loses its force.

“Both principle and practical good sense forbid any larger interpretation of the privilege in this application; and healthy judicial opinion has frequently pointed this out:” Wigmore On Evidence, supra, Section 2265, pages 873-4.

Evidence is either real or personal. There is no such thing as mixed evidence. By real evidence is meant all evidence of which any object belonging to the class of things is the source; persons also being included in respect of such properties as belong to them in common with things. What we term real evidence, the civilians called “evidentia rei vel facti.” This sort of evidence may be either immediate, where the thing comes under the cognizance of our senses; or reported, where its existence is related to us by others. Personal evidence is that which is afforded by a human agent; either in the way of discourse or by voluntary signs. Evidence supplied by observation of involuntary changes of countenance and deportment comes under the head of real evidence. Best on Evidence, Vol. 1, Section 28, pages 26-7, and Section 196, page 307.

Instances of real evidence leading to the detection of offenders are familiar to all concerned in the practical administration of justice. In the case of a burglary, the thief had gained admittance to the house by opening a window through means of a penknife, which was broken in the attempt and part was left in the wooden frame: the broken knife was found in the pocket of the prisoner and corresponded perfectly with the fragment left. A murder had been committed by shooting the deceased with a pistol and the prisoner was connected with the transaction by proof that the wadding of the pistol was part of a letter belonging to the prisoner, the remainder of which was found upon his person. In the case of robbery, it appeared the prosecutor, when attacked, had, in his defence, struck the robber with a key upon the face and the prisoner bore an impression upon his cheek which corresponded with the wards of the key. Starlde On Evidence, Fourth Edition, pages 844-5, and Ninth Edition, pages 744-5.

“If an officer who arrests one charged with an offense had no right to make the prisoner show the contents of his pocket, how could the broken knife, or the fragment of paper corresponding with the wadding, have been found? If when a prisoner is arrested for passing counterfeit money, the contents of his pockets are sacred from search, how can it ever appear whether or not he has on his person a large number off similar bills, which, if proved, is certainly evidence of the scienter? If an officer sees, a pistol projecting from the pocket of a prisoner arrested for a fresh murder, may he not take out the pistol against the prisoner’s consent, to see whether it appears to have been recently discharged? Suppose it be a question as to the identity of the prisoner, whether a person whom a witness says he saw commit a murder, and the prisoner appears in court with a veil or a mask over his face. May not the Court order its removal in order that the witness may say whether or not he was the person whom he saw commit the crime?

"Would the robber whose face was marked with the wards of a key have been allowed to conceal his identity by wearing a mask during his trial?” State v. Graham, 74 N. C. 646, 648-9, or 492, 494-5, 1906, reprint.

Real evidence is always admissible, even though secured from the defendant by compulsion. The object of all evidence is to elicit the truth. Involuntary confessions, made either under the fear of punishment if not made or in the hope of escaping from punishment if made, are not receivable as evidence, because experience has demonstrated they are liable to be influenced by these motives, and, hence, cannot be followed as guides to truth. This objection, however, does not apply to real evidence. Neither the fear nor the hope of the defendant could have produced his state of body found by Dr. Fine. Therefore, the physical condition of the defendant was a fact calculated to aid the jury'and fit for their consideration. State v. Graham, supra, 647, or 493.

It is apparent, then, although ordinarily by evidence is meant anything which tends to prove or disprove any matter in question, or to influence the belief respecting such matter, although the word evidence, in legal acceptation, includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved and although testimony is not synonymous with evidence, the latter being the more comprehensive term and including all that may be submitted to the jury, whether the statements of witnesses, the contents of papers, documents or records, or the inspection of whatever the jury may be permitted to examine and consider during the trial, that, nevertheless, in Section 9, supra, the makers of the Constitution used the word evidence in the restricted sense of testimony and did not intend by the employment of the more comprehensive term to include real evidence. Particularly is one forced to this conclusion if it be kept clearly in mind that in the interpretation of the general principle under discussion nothing turns upon the variations of wording in the Forty-six (46) state constitutional clauses, In re Adjudication of Contempt of Myers and Brei, supra; that constitutional sanction, being not the creation of a new privilege but simply the recognition of an old one, has not altered the tenor and scope of the privilege but merely given greater permanence to the traditional rule of evidence bequeathed us; that the members of the constitutional conventions did not intend to codify the various details or in any respect alter the known bearings of the rule but solely to describe the rule sufficiently to lead to prompt identification as a principle; that plain proof of this intention is to be found in the extreme brevity of the clauses naming the privilege and strong-corroboration of the purpose is to be discovered in the undoubted uniformity of purpose running through all constitutional efforts; and that, therefore, it is immaterial the accused is protected in Pennsylvania from giving evidence — while in other states only from testifying, being a witness, etc., — against himself, since, after all, the various phrasings of the privilege spring from a common conception of the form of the protected disclosure. Wigmore on Evidence, supra, Section 2263, page 863, and Section 2252, page 831.

But, even if we are wrong in our conclusions, first, that no compulsion was exerted upon the defendant and, second, that the constitutional privilege sought to be invoked for his aid covers only statements made by him in court under process as a witness, there is still another reason why there was no error in the admission of the testimony of Dr. Fine.

The object of ■ Section 9, supra, having been merely the restraint of arbitrary power and the prevention of despotic action on the part of state sovereignty, or persons acting under the authority of the Commonwealth, or, at the utmost, under color of state authority, the section itself is a limitation only upon the action of an officer of the state, or of some person acting by authority of a state officer and under his direction, or of a person acting under color of authority from the Commonwealth, and not upon the action of a private individual, although a practicing physician, or a petty officer like a township constable, proceeding without, above and beyond state authority and possessed of no color of state right. Commonwealth v. Albert Johnson, 41 Montg. Co. L. R. 283, 7 D. & C. 435, and the authorities therein cited, 291-2. In other words, the chief, if not the only, design of the inhibition against the testimonial compulsion contained in the Ninth Section of the Declaration of Rights of the Constitution was to fix a barrier against possible tyranny and despotism on the part of the state government; that is, what the framers of the Constitution of 1874 and of prior organic laws of the Commonwealth endeavored to forestall was merely the successful culmination of a possible movement to make the state government more powerful through the abrogation of the ancient rule of evidence. The intent of the makers of the fundamental state law was that the constitutional restriction against compelling the accused to give evidence against himself should so confine the legislative branch of the Commonwealth as to render ineffectual any future attempt to make lawful by act of assembly the testimonial compulsion of an accused which the people, speaking through their delegates in constitutional convention assembled, had ordained could in no event become lawful; should so operate upon the executive branch as to preclude any likelihood of the enforcement of a statute in violation of the constitutional inhibition, even if such a law were ever to be enacted by the legislature; and should so press upon the judicial arm of the government as to cause the courts promptly to tear the mask from the face of every testimonial compulsion parading in the guise of express legislative sanction. So far, but no farther, may the judicial hand of the Commonwealth reach. Commonwealth v. Julius Johnson, 41 Montgomery County L. R. 305, 306.

It must not be forgotten that the function of fundamental law ends with the creation, expression and declaration of constitutional rights. To the legislative branch of government is confined the power, and upon that department alone devolves the duty, of framing the legislation necessary and best adapted to afford the citizen protection in the enjoyment of the rights guaranteed him by organic law. In the exercise of such power and the performance of such duty, the Legislature of Pennsylvania has declared that, “Except defendants actually upon trial in a criminal court, any competent witness may be compelled to testify in any proceeding, civil or criminal; but he may not be compelled to answer any question which, in the opinion of the trial judge, would tend to criminate him.” Act of May 23, 1887, P. L. 158, Section 10,161. To the executive and judicial branches of government is assigned only the faithful enforcement of the laws provided by the legislature in carrying out constitutional provisions and with such enforcement the responsibility of the court ceases. Therefore, inasmuch as no law in this Commonwealth forbids the medical examination of an accused in a criminal prosecution, the admission of the testimony of Dr. Fine was not error. Commonwealth v. Julius Johnson, supra, 307.

In the fourth place, conceding for argument, but not in fact or reason, that everything heretofore said has been untrue or fallacious, granting that Dr. Fine compelled the defendant to take the tests, that the medical examination constituted evidence and that the physician was a state officer, the testimony of the doctor should not have been excluded because the defendant failed to claim his constitutional privilege, — at most an option on his part to refuse to undergo the tests and not a prohibition on the part of Dr. Pine to make an examination.

The provision guaranteed by the quoted clause of Section 9, supra, may be waived by consent, express or implied. Otherwise, a defendant offering himself as a witness in his own behalf could not be subjected to a cross-examination bringing out criminating facts if he should conclude not to submit to such an examination. And yet, it is settled beyond all dispute that, when the accused thus offers himself, he waives his privilege as to every involved issue. So, while a defendant cannot be compelled to give evidence against himself, if voluntarily he gives such evidence, he cannot object to the use of the evidence against him. So far as that evidence is concerned, his constitutional privilege is waived. Commonwealth v. Doughty, 139 Pa. 383, 397-8; Commonwealth v. House, 6 Pa. Superior Ct. 92, 104; Commonwealth v. Exler, Appellant, 61 Pa. Superior Ct. 423, 426-7, 437; Commonwealth v. O’Malley, Appellant, 81 Pa. Superior Ct. 100, 102-3; and Thompson v. United States, 10 F. (2nd) 781, 784, and many authorities collected in the foot-note to the last case. Although Dr. Fine requested the defendant to go through certain physical movements, without objecting the latter acceded promptly to the request. The right of objection having been thus waived by the defendant, who took the chances of the examination resulting favorably to himself, it would be contrary to every rule of practice to permit him to take advantage of what was done by the physician, even if he had no right to submit the tests. Johnson v. The Commonwealth, 115 Pa. 369, 373, 395.

At the argument on the motion, counsel for the defendant suggested rather naively and, later, by written brief stated still more ingenuously that he laid “particular emphasis on” “the fact that all the evidence indicated that” “at the time of the examination” his client “was under the influence of liquor” “and, therefore,” “with a full knowledge of” the “meaning” of “an examination” “could not have given his consent.” The answer is, of course, that, at the trial, the defendant himself admitted the operation of a motor-vehicle at the time and place charged by the Commonwealth and, if his counsel now concedes that, at such time and place, his client was under the influence of intoxicating liquor, surely the jury made no mistake in finding the defendant guilty. Moreover, any man who drives an automobile on Sunday along a main highway of this state while he is so drunk as not to know the difference between an examination by a physician and a gymnastic drill by a physical culturist is entirely too drunk for public safety and altogether too dangerous a menace to travelers to be allowed the freedom of gasoline locomotion.

The prohibition of compelling the accused in a criminal prosecution to give evidence against himself is a prohibition against the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when such body is material. In principle, the objection of the defendant would forbid a jury to look at a prisoner and compare his features with a photograph in proof. Holt v. United States, 218 U. S. 245, 252-3; Perlman v. United States, 247 U. S. 7, 15; Schenck v. United States, 249 U. S. 47, 50; and Commonwealth v. Randolph, Appellant, 74 Pa. Superior Ct. 76, 77-8.

To hold that the examination of Dr. Fine was a violation of the mooted clause in Section 9, supra, would be a strained construction of the Constitution. If such construction were adopted, as pointed out by Pirofessor Wig-more, there would be nothing to prevent a person accused of having stolen property in his possession from successfully interposing a like plea of constitutional immunity and, thus, thwarting every attempt to find and recover the purloined loot. While the constitutional rights, of defendants in criminal prosecutions should never be violated, at the same time care must be taken not to deprive the Commonwealth of all legitimate means for the detection of crime and the punishment of criminals: Commonwealth v. Valeroso, Appellant, 273 Pa. 213, 221.

NOTE. — This case was appealed and the appeal subsequently discontinued.

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