author: Fronemeld, P. J.,

text:
    Hulitt v. Baldwin Locomotive Works.

      Workmen’s compensation — Appeal from award — Province of court — Evidence — Expert testimony — Insufficient evidence — When case referred back to board.

    1. Upon an appeal from the award of compensation under the Workmen’s Compensation Act upon the ground that there was not sufficient evidence to support the award, the only question for the court is whether there was evidence to support the finding of fact, and if there was such evidence, the award will be sustained.
    2. Expert medical testimony in support of a claim for compensation must be that the condition of the claimant was related to or was the material and probable or direct or superinduced result of the injury, or most probably came therefrom.
    3. Where the injuries complained of are immediately and directly or are naturally and probably the result of the proven accident, the conclusion, without medical testimony, may be safely drawn.
    4. The disability, following closely upon the injury, is evidence to be considered with other evidence in the case,-but in itself is not enough to show the result in question most probably came from the injury proved.
    5. Where, in such case, an analysis of the testimony is required to ascertain if there is any evidence to sustain the findings of fact in controversy, the record will be remitted to the Compensation Board for further hearing and determination.
    Appeal by defendant from order of Workmen’s Compensation Board. C. P. Delaware Co., March T., 1926, No. 2090.

      Taylor, Chadwick & Weeks, for appellant.

      Imtz, Ervin, Beeser & Eronefield, contra.
    May 16, 1927.
   Fronemeld, P. J.,

The claimant seeks, under the Compensation Law, recovery from the defendant for the permanent loss of the use of his left arm.

The referee found that, “on June 8th, 1923, while in the course of his employment with the defendant, the claimant was holding what is called a ‘backing out punch,’ used to knock out condenser rivets, and while so doing the man who was helping him at his work, and who was using a mall weighing about eight pounds, instead of striking the punch that the claimant was holding, missed striking it and accidentally struck the claimant on the left hand, thereby injuring the middle and ring fingers of said hand. That, notwithstanding said injuries, the claimant continued at his work, but in a few weeks’ time began to notice a numbness in his hand, which grew worse as time went on, until he gradually lost the use of his arm, and quit work on December 15th, 1923, on account of said disability, and, notwithstanding medical treatment furnished by the defendant, he has now sustained the permanent loss of the use of said left arm,” and awarded compensation accordingly.

The referee’s findings were approved by the Compensation Board. This court is now asked to reverse those findings because the defendant claims, inter alia, there is no sufficient evidence to sustain the finding (a.) that the injury to the fingers of the claimant caused the loss of the use of his arm; and (6) that the loss of the use of his arm was sustained in the course of his employment.

The only question which we are called upon to decide is whether or not there is evidence to support the findings of fact: Natalini v. Riefler, 286 Pa. 301; Stahl v. Watson Coal Co., 268 Pa. 452; McGuirk v. Sun Ship, 80 Pa. Superior Ct. 457.

There is no question but that the finding is justified that the cláimant had his fingers injured by being struck with a mall used in the course of his employment, but the finding that the injury to his fingers caused the loss of the use of his arm is questioned as not having any evidence to support it. If there is such evidence, the finding will not be disturbed: Vorbnoff v. Mesta Machine Co., 286 Pa. 199.

The claimant testified that he was injured on June 8, 1923, and was treated at the hospital of the defendant; “and in a couple of weeks’ time I noticed a numbness coming in my hand, and . . . after I went (to the company’s doctor), he sent me to dispensary to be massaged. I continued with these treatments until the latter part of July, and seeing that I was getting no result . . . was then referred to Dr. Casselbury (defendant’s doctor) ; after waiting for three or four days, he told me that I was to take baking treatments at Section A dispensary. ... I continued them once and twice a day u-p to and including December 7th; reported for work on December 8th, and did not get a place until August 20th. Since then I have been getting massage treatment;” that prior to the date of this accident there was nothing the matter with his hand or arm. He could do anything with it, and, since the accident, with the exception of the treatments, nothing was done to his arm which would cause his present condition.

On cross-examination, claimant said that he had seen Dr. Hicks, through the defendant, who said “no doubt it possibly came as the result of this injury, but that he could not determine just where the nerve or muscle was.”

The referee said “that, taken as a whole, the medical testimony is negative, but that Dr. Houselton testified that there has been the loss or paralysis of the motor function of the arm, and it is the opinion of this doctor that it was the result of the injury.”

The testimony of Dr. Houselton does not justify this conclusion. He stated that he looked at the arm and found that it did not have much power in it; that there seemed to be a paralysis of the muscle fibres. I noticed the atrophy, and that showed that he was losing naturally and slowly, if it was the result of the injury, the loss of his arm.” The doctor also said that “he has an atrophied condition which has resulted from the loss of function.” He does not, however, state that the loss of function or that the atrophied condition of the arm had any relation to, or was the natural and probable or direct or superinduced result of, or most probably came from, the injury to the fingers: Vorbnoff v. Mesta Machine Co., 286 Pa. 199; Anderson v. Baxter, 285 Pa.. 443; Bruggeman v. York, 254 Pa. 430.

Dr. Potts testified: “During the non-use of that arm he may have contracted a condition which any of us might do by simply not using it — atrophy.” But he does not say that, in his professional opinion, this condition was directly or indirectly caused by the finger injury. He asserts his belief to be to the contrary, and that claimant’s condition is due to a disease of the spinal cord. He also said if claimant had a blow across the shoulders and head (there is evidence that he had), if these symptoms appeared shortly after that, it might be due to such injury. This is not enough. The professional opinion must be given that the result in question most probably came f-rom the injury to the fingers: Funk v. Sheldon Axle Co., 270 Pa, 476; Vorbnoff v. Mesta Machine Co., 286 Pa. 199; Whelen v. Eastern Dock Co., 80 Pa. Superior Ct. 154.

For the same reason, the testimony of the claimant is not sufficient that Dr. Hicks said “that the reason he wanted the X-ray was to see whether there was any nerve or ligament or bone or muscle injury to cause this. He said, no doubt, it possibly came as the result of the injury, but that he could not determine just where the nerve or muscle was,” nor is the letter of Dr. Houselton, that the claimant has a motor paralysis of the left arm following his accident in May, 1923. He does not state that, in his professional opinion, the paralysis was most probably caused by the accident to the fingers, nor does the report of Dr. Hicks reach the question here involved, nor the testimony of Dr. Casselbury, wherein he stated: “Q. So that the non-use of the hand was due to the accident? A. Yes, sir. Q. So that if the paralysis was not caused by the injury, the injury caused the non-use of the hand and the non-use was the cause of the paralysis? A. Yes, if the paralysis was caused by that; only his fingers were hurt; that paralysis would be overcome by use and massage.” The doctor also states that if the. atrophy was caused by non-use of the arm, it ought to be relieved by treatment. If not, it may be due to some organic lesion in the spinal cord.

The referee also states (without making any specific finding of a fact) that “the defendant sought to show that claimant had been affected by syphilis, as shown by tests taken; this may be the explanation,' and the blow may have lighted up a pre-existing latent condition.”

There is no evidence in the case that the blow either on the fingers or on the head had anything to do with aggravating a latent systemic condition in the claimant and in causing the loss of the arm: Kelly v. Watson Coal Co., 272 Pa. 39; Smith v. Primrose Tapestry Co., 285 Pa. 145; Saroka v. Phila. & Read. C. & I. Co., 87 Pa. Superior Ct. 503; Bakunas v. Phila. & Read. Coal Co., 78 Pa. Superior Ct. 175; Davis v. Davis, 80 Pa. Superior Ct. 343.

The law is well established that where the injuries complained of are immediately and directly, or are naturally and probably, the result of the proven accident, the conclusion, without medical testimony, may be safely drawn: Davis v. Davis, 80 Pa. Superior Ct. 343; Grobouskie v. Shipman Koal Co., 80 Pa. Superior Ct. 349. The difficulty is in applying it.

The disability following closely upon the injury is evidence to be considered with other evidence in the case, but, in itself, is not enough to show that the result in question most probably came from the injury proved: Miller v. Railroad Co., 270 Pa. 330; Roach v. Oswald Lever Co., 274 Pa. 139; Watson v. Coal Co., 273 Pa. 251.

How it may properly be inferred that the claimant lost the use of his arm as a result of an injury without infection to his fingers because of the short time which elapsed between their occurrences, and because claimant was well before, and nothing was done to his arm since the accident to cause his present condition, is a little difficult, and is made more difficult when all the doctors in the case refuse to draw such a conclusion.

We conclude that there is no evidence to sustain the finding that the claimant permanently lost the use of his left arm as a result of the injury to his hand on June 8, 1923, in the course of his employment.

The first, second, third and fourth exceptions to the findings of fact and the first and third reasons, alleged as errors of law, are sustained and the findings to which these objections are aimed are reversed.

Inasmuch, however, as an analysis of the.testimony is required to ascertain if there is any evidence to sustain the findings of fact in controversy, that the injury to the claimant was the cause of his permanently impaired physical condition, the record is remitted to the Compensation Board for further hearing and determination: Vorbnoff v. Mesta Machine Co., 286 Pa. 199.

Prom William R. Toal, Media, Pa.


source: Caselaw Access Project

author: Landis, P. J.,

license: Public Domain

text:
    Flick v. Evans Electrical Company.

      Sale- — Breach of warranty — Recovery of purchase price — Insufficiency of statement — Affidavit raising question of law — Practice Act of May lb, 1915.

    1. If a statement of claim does not conform to the Practice Act of May 14, 1916, P. L. 483, the defendant should move to strike it off.
    2. If it does conform to that act, but is not sufficiently specific, the appropriate remedy is a rule for a more specific statement, followed by a motion for a non pros.

    3. The question to be decided under section 20 of the Practice Act is not whether a statement is so clear in both form and specification as to entitle the plaintiff to proceed to trial without amending it, but whether, upon the facts averred, it shows as a question of law that the plaintiff is not entitled to recover.
    4. Where a doubt exists, it should be resolved in favor of refusing to enter a final judgment.
    5. In this case, while the statement was insufficient, the question of law was improperly raised by affidavit afid should be decided in favor of the plaintiff.
    Affidavit of defense raising question of law. C. P. Lancaster Co., Nov. T., 1926, No. 67.

      John N. Hetrick, George T. Hambright and John E. Malone, for plaintiff.

      Charles W. Eaby, K. L. Shirk and John A. Coyle, for defendant.
    April 16, 1927.
   Landis, P. J.,

On May 10, 1924, an agreement was entered into between the plaintiff and the defendant, whereby the defendant agreed to “provide all the materials and to perform all the work shown on the drawings and described'in the specifications, entitled: One (1) No. 60 Sentinel Refrigerating Plant. One (1) No. 92 Bantam Refrigerator complete with freezer coils. One (l).No. D Bantam six (6) hole cream cabinet. All installed for operation, less sewer and water connections.” The plaintiff agreed to pay the defendant for the same $1398, “subject to additions and deductions as provided in the general conditions of the contract, and to make payments on account thereof as provided therein, as follows: Three hundred and fifty dollars with order, balance due and payable ten days from installation. This proposal is made with the understanding that the drawings, specifications, terms, etc., above referred to, are sufficient; that the undersigned shall not be liable for any delays or damages caused by accidents, strikes, inclemency of the weather, the acts of the architect, engineer or other contractors, or any causes beyond its control, and that, unless otherwise herein provided, the above-mentioned sum or sums are due and payable upon the completion of the work for which it or each one respectively is the consideration.”

On the same day, another agreement was entered into, whereby the defendant agreed to “provide all the materials and to perform all the work shown on the drawings and described in the specifications entitled: Addenda to Refrigeration Contract, Water Cooler Complete for Drinking Purposes. The owner agrees to pay the contractor in current funds for the performance of the contract ($50.00) fifty dollars.” The further conditions were the same as those stipulated in the first contract.

No drawings have been attached to the statement, but the specifications provide that the “purchaser is to place machine in the room of building it will occupy;” that “the satisfactory operation of the equipment is contingent upon the purchaser furnishing plentiful supply of water and electricity of the proper characteristics at all times;” that “there are no understandings, verbal, that have not been written in this proposal;” that “the equipment to be known as No. 60 Sentinel Full Automatic Refrigeration machine as manufactured by Sentinel Refrigerator Machine Company;” that “the refrigeration is to be applied to large refrigerator and cream cabinet which will be furnished by the contractor. Refrigerator to be Banta No. 92 — Four-door style. Size, 48" x 28" x 60". Cream cabinet to be Banta D — Six Holes — 5 Gal. each. Motor: D. C. as R. P. M. 1750. H. P. i of motor. Belt, Idler of design, which reduces wear on the belt and prevents slipping. Automatic controllers are built into the machine, assuring positive operations, which also minimizes power consumption and delivers a more even temperature in refrigerator. Condenser coils being built in the machine eliminate large number of joints which competitive machines use. This feature, therefore, reduces leakage. Safety valves: A patented and ingeniously designed safety valve embodied in the piston head allows the dangerous high pressures to circulate back through the machine and not be exhausted into the building. Oiling system:’ The splash system is used and the oil level is maintained above crank shaft bearings and must never drop below this point, as this makes an oil seal which prevents the crank case gases from escaping along the crank shaft. Ammonia tank: The ammonia tank is made of cast steel thoroughly tested to 500 lbs. per square inch, and being built into the base of the machine eliminates excessive weight and floor space. Water and waste lines to be installed by owner within fifteen feet of machine. Electric power wiring to be installed by the Evans Electrical Company.”

The machines were duly installed, and the plaintiff paid to the defendant apparently on the said contract the sum of $1398. She has now brought suit to recover back the sum thus paid, with the exception of a small credit, and also certain damages which she alleges were occasioned. The statement alleges that the machines were to be installed in the plaintiff’s candy store and ice cream parlors, No. 138 North Duke Street, Lancaster, Pa.; that the said refrigerating plant did not work satisfactorily, and the plaintiff immediately notified the defendant to that effect; that the defendant made certain changes therein, and the plant still continued to operate unsatisfactorily; and, finally, on or about July 12, 1925, the plaintiff notified the defendant to remove it and pay back the original cost and all damages suffered by her, and upon its failure to do so, she sold the plant for $65.

Under the agreements made, the defendant was to install certain designated machines. It is nowhere averred that it did not do so. It did not agree that they must be satisfactory to the plaintiff. The only undertaking in this regard was that “the drawings, specifications, terms, etc., . . . are sufficient.” It is clear to me that the statement is insufficient, without considering the question of damages, much of which does not arise in contracts such as this. We, however, think that we cannot at this time enter a judgment for the defendant. In Rhodes v. Terheyden, 272 Pa. 397, it was held that if a statement of claim does not conform to the provisions of the Practice Act, the defendant should move to strike it off. If it does conform to that act, but is not sufficiently specific, the appropriate remedy is a rule for a more specific statement, followed by a motion for a non pros. The question to be decided under section 20 of the act is not whether a statement is so clear in both form and specification as to entitle plaintiff to proceed to trial without amending it, but whether, upon the facts averred, it shows as a question of law that the plaintiff is not entitled to recover. Where a doubt exists, it should be resolved in favor of refusing to enter a final judgment. See, also, Long v. McAllister, 275 Pa. 34.

We, therefore, decide the question of law raised in favor of the plaintiff, not because we think the plaintiff’s statement is correct, but because the defendant has not raised the question in the proper way.

Question of law decided in favor of plaintiff.

From George Eoss Eshleman, Lancaster, Fa.


author: Cummins, J.,

text:
    Joffe v. Miller.

      Contracts — Illegality of contract — Gambling transaction — Suit on check given in payment of loan to enable and induce defendant to gamble with plaintiff.

    1. Wagering contracts in Pennsylvania are illegal and void.
    2. The general rule is that one cannot set up his own turpitude as a defense to breach of contract, but whenever the consideration for a contract is illegal to the extent that it not only affects the integrity and good faith of the parties involved, but also the public generally, as being against public policy, public morals or against positive statutory enactment, such illegality may be interposed as a defense.
    3. Where one made a loan to another knowing that the borrower intended to use the money so procured in gambling, such knowledge alone will not vitiate the transaction; but where the money is advanced under such circumstances as to indicate that the lender intended that the money loaned should be used in gambling, such loan is an illegal transaction and the fact may be offered as a defense upon suit to recover on such loan.
    4. Defendant in an action, between original parties, upon a check given in payment of a loan made to enable him to engage and continue in a gambling transaction with plaintiff himself, was permitted to interpose as a defense such illegal consideration.
    Motions for new trial and for judgment n. o. v. C. P. Washington Co., Aug. T., 1926, No. 322.
    Before Brownson, P. J., and Cummins, J.

      D. M. McCloskey, for plaintiff; D. M. Anderson, for defendant.
    May 9, 1927.
   Cummins, J.,

Plaintiff’s action was in assumpsit to recover on defendant’s check in the sum of $1500. The verdict of the jury having been for defendant, the case is now before the court in banc on plaintiff’s motions for judgment n. o. v. and for a new trial.

In considering these motions, we must, of course, adopt as the facts such as could have been reasonably found from all the testimony and inferences favorable to plaintiff (Donovan v. Transit Co., 273 Pa. 152); but in this case the material facts are substantially uneontroverted.

The plaintiff, Milton Joffe, either alone or jointly with others, set up and operated a gambling-room at Monessen, Westmoreland County, Pennsylvania. The gambling consisted of a game of dice in which Joffe acted as banker, betting with all who participated therein. Miller, the defendant, was invited to and joined in the game; and, after having lost all his money, Joffe, the banker, loaned him, from time to time during the progress of the game, various amounts in order to enable and induce him to remain in the game, until Miller was indebted to Joffe, the banker, in the aggregate sum of $1200. Joffe then demanded of Miller a check before advancing him any more money, whereupon Miller gave Joffe his check for $1500, payable “to the order of cash,” and Joffe then advanced Miller an additional $300, thereby aiding, abetting and inducing Miller to continue in said game with him. Miller then remained in the game until the place was, later in the evening, raided by an officer, he, Miller, having in the meantime lost to Joffe $150 of the last $300 advanced him. When this check was presented by Joffe at the bank, payment was refused, payment thereon having been stopped by Miller. The check in question being payable “to cash,” is probably a negotiable instrument, to be treated as if payable “to bearer” (Selover on Negotiable Instruments (2nd ed.), 80; Negotiable Instruments Act of May 16, 1901, par. 4, § 9, art. i, P. L. 194, 196), but this action, being between original parties, the fact of negotiability becomes immaterial: Norton on Bills and Notes (3rd ed.), 193, 194; 1 Daniel on Negotiable Instruments (6th ed.), § 175, page 230.

Upon trial, plaintiff proved the execution and delivery of the check in question and defendant’s refusal to pay, and rested. Defendant offered, and was permitted, under objection, to show that the consideration for the check was, plaintiff’s loans made to enable and induce him, the defendant, to engage and continue in a gambling contest with plaintiff. If this testimony were improperly admitted, then plaintiff is entitled to judgment n. o. v., for without this evidence, plaintiff would have been entitled to binding instructions: Duffy v. Water and Power Co., 233 Pa. 107.

Plaintiff’s objection to this testimony was that defendant should not have been permitted to interpose as a defense his own turpitude, his own illegal transaction with plaintiff. The principle relied upon is clearly enunciated in the leading case of Evans v. Dravo, 24 Pa. 62, 65, where Justice Woodward says: “He who hath committed iniquity shall not have equity; that as he made his bed so shall he lie; that [he] who seeks equity must do equity; and that no man shall be received to allege his own turpitude. The maxim of the ■common law is to the same effect, ex dolo malo non oritur actio. And no man, said Lord Mansfield (1 W. Black. 364), shall set up his own iniquity as a defense any more than as a cause of action.” But in this same opinion (page 67), Justice Woodward adds: “I do not say [that this] rule is applicable to ■contracts forbidden by statute or which are contra bonos mores. They stand on their own ground, which it is not necessary now to examine.” So, in the later case of Kilborn v. Field, 78 Pa. 194, 196, a suit to recover on a note, the ■defendant was permitted to show that the consideration for the note was an agreement effecting collusion in a divorce action, which agreement affected not only the parties to the transaction, but was void as against public policy, and, the contract being still executory, was provable as a defense. It has .since been established by a long unbroken line of decisions that whenever the consideration for a written contract, e. g., note or check (if the action is between original parties), is illegal to the extent that it not only affects the integrity and good faith of the parties involved, but also the public generally, as being against public policy, public morals or against positive statutory enactment, such illegality may be interposed as a defense in any action brought to recover on the unexecuted promise to pay contained in such written instrument. The following are some of the cases in point: Irvin v. Irvin, 169 Pa. 529, 544; Bredin's Appeal, 92 Pa. 241, 245, 247; Murray v. McDonald, 236 Pa. 26, 29, 30; Mathiot’s Estate, 243 Pa. 375; Kuhn v. Buhl, 251 Pa. 348; Miller v. Miller, 284 Pa. 414, 418. In fact, it has been even held that, where only a “part of a consideration is illegal, the whole consideration is void, because public policy will not permit a party to enforce a promise which he has obtained by an illegal act or an illegal promise, although he may have connected with this act or promise another which is legal:” Parsons on Contracts (5th ed.), 457; Tamaqua, &c., Ry. Co. v. Street Ry. Co., 167 Pa. 91, page 94; Filson’s Trustees v. Himes, 5 Pa. 452; Bredin’s Appeal, 92 Pa. 241; Clippinger v. Hepbaugh, 5 W. & S. 315; but in this case the entire consideration was advanced for the purpose of aiding and inducing the defendant to engage in the game in question.

Wagering contracts in Pennsylvania are not only illegal, but void: Davis v. Fleshman & Co., 245 Pa. 224. Although one who makes a loan to another and receives his check or note therefor has knowledge of the fact that the borrower intends to use in gambling the money secured, such knowledge alone would not vitiate the transaction'; but where, as in this case, the money is advanced under such circumstances as to indicate that the lender intends by the loan contract that the money so loaned shall be used in gambling, and the lender is present, aiding, abetting and inducing the borrower to gamble the money loaned, by himself participating in and operating the game itself, then, in such case, the illegality of such transaction being detrimental to the public generally, the court overlooks the parties, considers the question one of public policy, Kuhn v. Buhl, 251 Pa. 348, 374, and, upon suit on a check so given, will permit the drawer, in an action against him by the payee, to interpose as a defense to the check sued upon the illegality of the consideration for which it was given: Waugh v. Beck, 114 Pa. 422 (a note case); Edgell v. McLaughlin, 6 Wharton, 176 (a check case); Durr v. Barclay, 8 Pa. C. C. Reps. 285 (a check case); Comly v. Hillegass, 94 Pa. 132 (a check case); Unger v. Boas, 13 Pa. 601 (a note case); Harper v. Young, 17 W. N. C. 557 (a note case); Moss v. Jones, 1 W. N. C. 96 (a note case); Fareira v. Gabell, 89 Pa. 89; Freedley v. Jacoby, 220 Pa. 609; Brua’s Appeal, 55 Pa. 297; 3 P. & L., col. 4156. And see Northern National Bank v. Arnold, 187 Pa. 356; Snyder v. Bank, 221 Pa. 599. The delivery of a check is not an executed contract; it is “neither a legal nor equitable appropriation of a corresponding amount of the depositor’s fund in the bank;” it is “merely an order on the bank to pay from the maker's account; it may be revoked at any time before it is paid or accepted:” Wall v. Franklin Trust Co., 84 Pa. Superior Ct. 392, 394. Clearly plaintiff was not entitled to binding instructions and is not, therefore, now entitled to judgment n. o. v.: Duffy v. Water and Power Co., 233 Pa. 107; Thatcher v. Pierce, 281 Pa. 16, 18; Holzheimer v. Lit Bros., 262 Pa. 150, 152. Upon oral argument, no substantial reason was advanced in support of plaintiff’s motion for a new trial. The verdict was not against the weight of the evidence nor against the charge of the court.

Decree. — And now, to wit, May 9, 1927, motions for new trial and judgment n. O. V. refused. Prom Harry D. Hamilton, Washington, Pa.


author: Per Curiam (Gest, J.),

text:
    Myers’s Estate.

      Practice, O. C. — Termination of trust before trastee has filed his account.

    1. It is within the discretion of the Orphans’ Court to terminate a trust upon the petition of all parties in interest.
    2. A trust, however, will not be terminated where a trustee, although twelve years have elapsed since his appointment, has filed no account, as it may happen that there are outstanding claims against the trust estate and claimants to whom notice of the trustee’s account should be given. Especially is this the case where the petition appears to have been prompted merely by a desire to take a short cut to end the trust. In the absence of special circumstances, the trustee should file his account and an application for the termination of the trust should be made to the auditing judge, who will find the facts in his adjudication and make such award as may appear to him proper under the law.
    3. The Orphans’ Court has discretionary power to direct the filing of an account by a trustee.

      Termination of trust — Declaratory Judgments Act of June 18, 1923.

    4. The Declaratory Judgments Act of June 18, 1923, P. L. 840, is not intended for, and should not be invoked in, cases where the judgment sought can be had as expeditiously in the ordinary course of legal procedure.
    Petition for citation to trustee to pay over trust fund to beneficiaries. O. C. Phila. Co., July T., 1907, No. 38.
    The testator, David J. Myers, father of the petitioners, died May 13, 1896, leaving a will duly admitted to probate, by which he gave his residuary estate to a trustee for the benefit of his three' daughters, two of whom were the petitioners, and for the children of a third daughter, one Hannah Egner, if she survived Eleanor M. Stokes, one of the petitioners, and left children. The said Hannah Egner had died and left no child, as appears from the petition. The petitioners, therefore, averred that the testator’s residuary estate had vested absolutely in them and that they were entitled to the same, and prayed that the trustee be directed to make a transfer of the securities.

      E. Spencer Miller, for petitioners.
    March 23, 1928.
   Per Curiam (Gest, J.),

This is a petition for a citation, directed to the trustee under the will of this decedent, to show cause why he should not transfer to the beneficiaries the trust estate, inasmuch as it appears from the averments of the petition that they are the only parties interested in the estate under the will. And it is stated by counsel that if the citation is granted, the trustee will not oppose the prayer of the petition.

We have sometimes, in our discretion, and in exceptional cases, such as Simmons’s Estate, 3 D. & C. 323, terminated trusts upon the petition of all the parties interested, but, under our well settled practice, we are not bound to do so, and, in our opinion, the trustee in the present case should file his account, upon the audit of which the Auditing Judge may find the facts in his adjudication, and make such awards as may appear to him to be proper under the law. We have examined the record of this case and find that,'although the trustee was appointed on Sept. 3, 1915, over twelve years ago, no account has ever been filed by him, and in the meantime, some seven years ago, he sold certain real estate under an order of this court. The trustee entered corporate security upon his appointment, and further corporate security when he sold the real estate. In the natural course he will apply for his discharge, but this cannot be granted, under section 52 (a) of the Fiduciaries Act, until he shall have filed his account and the same shall have been confirmed; and section 46 (h) contemplates the filing of triennial accounts by trustees in due course, while Rule X of this court requires the assent of the surety to the trustee’s discharge.

That we have discretionary power to direct the filing of an account by a trustee whenever we think it should be done, we cannot doubt, as section 9 (b) of the Orphans’ Court Act of 1917 gives us jurisdiction respecting the control, removal, discharge and settlement of the accounts of trustees.

The present petition is merely prompted by the desire of the petitioners to take a short cut in order to realize their purpose; but the experience of this court shows that, in the great majority of cases, such irregular methods are productive of confusion and often of injury to the rights of the parties. It may readily happen that there are outstanding claims against the trust estate, and legal notice of the trustee’s account should be given to all possible claimants. If this petition should be granted, the court would be overrun With many similar petitions for the construction of wills, and the determination of the rights of the parties thereunder.

It was suggested by the learned counsel for the petitioners that the granting of their petition would not relieve the fiduciary from his obligation to file an account in the future; but to authorize the trustee to transfer all the assets of the estate, and then have him file an account, would be putting the cart before the horse.

It was also suggested that the present petition was in the náture of a petition under the Declaratory Judgments Act of June 18, 1923, P. L. 840, and it is, indeed, substantially equivalent to such a petition, with the addition of a prayer for'affirmative relief. But it is now well settled that this act was not intended for, and should not be invoked in, cases where the judgment sought can be had as expeditiously in .the ordinary course of legal procedure: List’s Estate, 283 Pa. 255. See, also, Brumagin’s Petition, 6 D. & C. 431; Follweiler’s Estate, 6 D. & C. 757.

The petition is, therefore, dismissed.


author: Taulane, J.,

text:
    Manieri v. City of Philadelphia.

      Municipalities — Compromise of claims — City solicitor — Attorneys-at-laiu.
    1. The city solicitor has no authority to compromise a claim against the city without authority from the council.
    2. An attorney at law has no authority, merely hy virtue of his retainer or employment, and without express authority, to bind his client by a compromise of a pending suit or other matter entrusted to his care.
    3. The fact that the amount of the compromise may be a fair and just settlement is immaterial.
    4. In such cases, the better practice is to require the plaintiff to make out a prima fade case, and then for the city solicitor to state to the jury the amount he thinks the plaintiff is entitled to recover, and for the questions of liability and amount to be submitted to the jury.
    5. Semble. If the city solicitor had power to compromise a claim against the city, the agreement of compromise would bind his successor.
    Philadelphia Charter Act of June 25, 1919, P. L. 581, 600, and earlier acts considered.
    Petition and rule to open judgment. C. P. No. 1, Phila. Co., June T., 1925, No. 8704.

      Francis Shunk Broivn, for plaintiff.

      A. T. Ashton, City Solicitor, for defendant.

      March 12, 1928.
   Taulane, J.,

Of the several questions raised by the defendant, the only one of merit and requiring consideration is whether the City Solicitor has authority to compromise claims against the City.

The facts are not in dispute. On Dec. 20, 1927, the board of viewers awarded the plaintiff $35,000 for the use and injury to his property, due to its temporary occupation by the City as a part of the site of the SesquiCentennial Exhibition. On Dec. 27, 1927, the plaintiff appealed from the award to the Court of Common Pleas, and on the same day — some five days before the expiration of his term of office — the then City Solicitor compromised and settled the plaintiff’s claim for $50,000 — being $15,000 more than the award. To carry the agreement into effect, the then City Solicitor and counsel for the plaintiff entered into a stipulation reading as follows:

“It is hereby expressly understood and agreed that formal pleadings in the above entitled proceedings shall be waived and the said case considered at issue, and that a verdict be taken in favor of the plaintiff and against defendant in the sum of $50,000.”

The present City Solicitor was appointed and took the oath of office on Jan. 2, 1928. On Jan. 3, 1928, the first day of jury trials since the preceding November, the court, following a practice of some few years, permitted a verdict to be taken on the stipulation. At the time the court were not advised of any objection to the taking of a verdict, and the presiding judge did not notice that the stipulation was signed by the former City Solicitor.

Subsequently, judgment was entered on the verdict, and the City, on petition of the Mayor, moved to open the judgment on the ground that the settlement was excessive and that the former City Solicitor had no authority to compromise plaintiff’s claim.

We opened the judgment because we were of the opinion that the City Solicitor has no authority to compromise claims against the City. Broad as are the powers of an attorney over his client’s case, it is well settled that an attorney has no authority, by mere virtue of his retainer or employment and without express authority, to bind his client by a compromise of a pending suit or other matter intrusted to his care: Gray v. Howell, 205 Pa. 211; Jamestown, &c., Ry. Co. v. Egbert, 152 Pa. 53; Brockley v. Brockley, 122 Pa. 1; Isaacs v. Zugsmith, 103 Pa. 77; Mackey’s Heirs v. Adair, 99 Pa. 143; Housenick v. Miller, 93 Pa. 514; Stokely v. Robinson, 34 Pa. 315, and Huston v. Mitchell, 14 S. & R. 307.

Has the City Solicitor, by virtue of his office, any authority, not possessed by an attorney in private practice, to compromise his client’s cause? His authority to compromise, while acting as the City’s attorney, is that, and that only, of an attorney, and without express authority he cannot compromise a claim against the City. His office confers on him no implied authority to compromise, and it has been so held wherever the question has arisen: Philadelphia v. McManes, 15 Phila. 51; City of Lebanon v. Lebanon & Annville Ry. Co., 1 Dist. R. 563; Bush v. O’Brien, 164 N. Y. 205; Stone v. Bank of Commerce, 174 U. S. 412, 423; and Taylor v. Mayor, 11 Abbott’s Practice Reports, 66.

In Bush v. O’Brien, 164 N. Y. 203, 211, the court said: “It is claimed, however, that the powers of a city attorney, or corporation counsel, differ from those of an attorney employed by an individual. They undoubtedly do if the charters under which they are elected or appointed give to them greater or different powers; otherwise, not. This question has also been considered by the courts. In the case of Taylor v. Mayor, etc., 11 Abbott’s Practice Reports, 66, it was held that the corporation counsel of the City of New York had no larger powers, as such, to bind his client than those connected with the ordinary relations of attorney and client. And very recently, in the Supreme Court of the United States, in the case of Stone v. Bank of Commerce, 174 U. S. 412, 423, Peckham, J., in delivering the opinion of the court, says: ‘We are also of the opinion that, as city attorney, he had no greater power to bind the city by that agreement than would an attorney have in the case of an individual.’ ”

Unless there is some statute or ordinance which authorized the then City Solicitor to compromise plaintiff’s claim, he acted beyond his authority and his agreement is not binding on the City. The duties of the City Solicitor are defined in article xiii, section 3 (a), of the City Charter of June 25, 1919, P. L. 581, 600, and section 11 of the Ordinance of Dec. 31, 1919, pages 541, 550. The charter and the ordinance are in the same language and read as follows: “The city solicitor shall be the legal adviser and act as attorney and counsel for the city, for all branches of the city government, and for all departments and officers of the city. The authorization in writing of the mayor in all cases shall be a sufficient warrant of attorney for representing the city, its departments and officers.”

The charter and ordinance, so far as they relate to the City Solicitor, are a substantial re-enactment of section 1 of article VIII of the Bullitt Bill of June 1, 1885, P. L. 37, 47, which merely redefined the City Solicitor’s duties under section 15 of the Consolidation Act of Feb. 2, 1854, P. L. 21, and the ordinances passed pursuant thereto. (See opinion of Judge Allison in Philadelphia v. McManes, 15 Phila. 51.)

The charter, neither directly nor indirectly, vests any authority in the City Solicitor to compromise claims against the City, and the Ordinance of June 29, 1868, page 281, expressly prohibits the City Solicitor from compromising any claim without authority of councils. The ordinance reads: “No claim or suit against the City of Philadelphia shall in any way or manner be compromised by the city solicitor, or any other officer of the said city, unless the same is reported to the said committee on law, and an ordinance be by them submitted to councils and passed for the compromise and settlement of the same.”

The exact point here involved was decided in Bush v. O’Brien, 164 N. Y. 205, where the corporation counsel of New York City, by virtue of his office and without express authority, compromised a claim against the city and agreed that judgment might be entered therefor. The court held that the judgment so entered was without authority and did not bind the city. And the New York cases cited by the plaintiff, if they support his contention, were expressly overruled in Bush v. O’Brien.

That the City Solicitor has no authority to compromise claims or confess judgment has long been recognized (see opinion of City Solicitor West, Opinions, 1883, page 33, and of City Solicitor Kinsey, Opinions, 1897, page 75), and to enable the City Solicitor to compromise municipal liens where the li'ened properties are not of sufficient value to satisfy the liens, an ordinance was necessary (Ordinances of 1906, page 143).

There is no merit in the City’s other contention. If the former City Solicitor had authority to enter into the stipulation, it is too clear for argument that the expiration of his term of office before the verdict was taken in no way revoked the agreement. Of course, the former City Solicitor’s powers ceased when he left office, but the termination of his powers did not annul any agreement he had authority to make merely because it had not been fully performed during his term of office.

So far as our recollection goes, the rather general practice of the City-Solicitor of settling claims against the City by stipulation to take a verdict arose during the term of office of the former City Solicitor. We. are informed that the practice in Court of Common Pleas No. 4 has been to compel the plaintiff to make out a prima fade case and then for the City Solicitor to state to the jury the amount he thinks the plaintiff- is entitled to recover, and for the questions of liability and amount to be submitted to the jury. Of course, the juries generally find a verdict for the amount suggested by the City Solicitor.

In the case at bar there was nothing before the court and jury but the stipulation. Hereafter we propose adopting the practice of Court of Common Pleas No. 4, as we believe it is more in accordance with the law and better protects the interests of the City. If the City Solicitor had no authority to compromise the plaintiff’s claim, it is immaterial that the amount of. the compromise may be a fair and just settlement of the plaintiff’s claim, and this was so decided, and we think rightly, in Bush v. O’Brien, 164 N. Y. 205.


author: Cordon, Jr., J.,

text:
    City of Philadelphia v. Reading Company.

      Negligence — Sidewalk—Liability of City — Liability of owner — Notice to owner — Judgment against City — Actions.
    1. Where a judgment has been recovered against the city for injuries sustained on a defective sidewalk, the city may maintain an action of assumpsit to recover the amount of the judgment from the owner of the property.
    2. The action of assumpsit is proper, inasmuch as the claim is on a legally implied contract of indemnity.
    3. In such case, where the owner has been duly notified by the city to appear and defend the case and has failed to do so, he cannot, in a suit by the city against himself, deny that the accident happened on his property where such fact was established by the pleadings and the evidence in the negligence suit against the city.
    4. The city was under no duty to give immediate notice to the property owner upon the bringing of the suit against it. Its only duty was to give the owner, by notice of the suit, a reasonable opportunity to come in and defend if he so desired. A notice given eight months before the trial was sufficient.
    5. The record of the judgment against the city is conclusive that the plaintiff in the judgment was injured by a defect shown to be on the sidewalk of defendant’s property.
    6. The suit by the city against the owner was not brought prematurely, as the plaintiff in the negligence case had secured a mandamus against the city for the amount of the judgment, had accepted the mandamus in payment, and had satisfied the judgment.
    Rule for judgment for want of sufficient affidavit of defense. C. P. No. 2, Phila. Co., June T., 1927, No. 9418.

      Joseph P. Gaffney, City Solicitor, B. J. O’Connell and I. K. Levy, Assistant City Solicitors, for City.

      William Clarke Mason, for defendant.
    March 20, 1928.
   Cordon, Jr., J.,

This is a rule for judgment for want of a sufficient affidavit of defense. On April 29, 1926, James Brosnahan, a minor, and his mother, brought suit against the plaintiff here to recover damages for injuries alleged to have been caused to the minor by a hole or depression in the sidewalk on the east side of Tulip Street, about 120 feet north of Lehigh Avenue, in the City of Philadelphia. On May 18, 1927, the case was tried in this court, and, on the same day, a verdict was rendered against the City for $2560, which, together with the proper interest and costs, now aggregates $2623.50, the amount here in suit. Although notified, in the manner hereinafter stated, of the pendency of the suit against the City and of the time fixed for. its trial, the defendant failed to appear and defend the suit, which was defended by the City Solicitor as attorney for the City.

On July 8, 1927, this action in assumpsit was brought to recover from this defendant the damages, interest and costs awarded against the City in the aforesaid litigation, the defendant being the owner of the property on the east side of Tulip Street and running north for a distance of 475 feet from Lehigh Avenue. To the statement of claim filed by the City, the defendant filed a comprehensive affidavit raising questions of law, and also answering to the merits, and the City has taken the rule now before us for judgment for want of a sufficient affidavit of defense. The questions raised by this rule are four in number: (1) Whether the suit is properly brought in assumpsit; (2) whether the defendant can deny that the accident happened on its property; (3) whether the notices of the suit received from the City were sufficient to conclude the defendant as to all questions adjudicated at the trial; and (4) whether the suit has been prematurely brought.

With respect to the first question, we are satisfied that the action is properly in assumpsit. The basis of the claim is a legally implied contract of indemnity. The primary duty to keep sidewalks in repair rests upon the property owner, and the law raises an implied undertaking on his part, or, as some authorities put it, a quasi-contractual obligation, founded upon good morals and conscience, to indemnify the municipality if it suffers loss through his failure to perform that duty. It is true that cases may be found in which the municipality has brought trespass instead of assumpsit against the property owner. Such cases, however, do not establish that to be the correct action, or even the exclusive one. Indeed, in principle, assumpsit would , seem to be the proper action, and this has been held in the only two cases in this State in which the question has been discussed and decided: Norwood Borough v. Harrison, 15 Dist. R. 142, and Pittsburgh v. Cohn Bros. Co., 27 Dist. R. 975. In addition, as pointed out by counsel, a variance between the writ and statement is not a good ground of demurrer; nor can there be oyer of the writ: Sipe v. Pennsylvania R. R. Co., 219 Pa. 210; New York & Penna. Co. v. N. Y. Central R. R. Co., 267 Pa. 64.

The second and! third questions, whether the defendant can deny that the accident happened on its property, and whether the notices received from the City were sufficient; to conclude the defendant as to all questions adjudicated at the trial, overlap and may be discussed together. The statement of claim avers, and the affidavit of defense admits, that the defendant owns the property on the east side of Tulip Street for a distance of 475 feet northward from Lehigh Avenue. In Brosnahan’s action against the City, the statement of claim averred that the depression which caused the accident was in the east sidewalk of Tulip Street, approximately 120 feet north of Lehigh Avenue. This would fix the accident as happening upon the defendant’s sidewalk, for the proper maintenance of which it was primarily responsible. In its affidavit of defense, however, the defendant avers that there was no dangerous depression in its sidewalk and that Brosnahan was not injured at the time and place set forth in the statement. If, in view of the defendnat’s admission of ownership of the property at the point where the accident was found by the jury in the Brosnahan case to have happened, the defendant can still contest the existence of the defect in the sidewalk and the place where the accident happened, this case must go to the jury upon that issue, and the rule before us should be discharged. If, however, the defendant is concluded from denying these facts because of the verdict in the suit against the City, then the aver-ments in question raise no justiciable issue, and the plaintiff should prevail in this phase of its rule for judgment.

In order to determine that question, we must consider, first, whether the notice given to the defendant of the pendency of the suit against the City was sufficient in law to enable the City to plead and use, as evidence, the judgment recovered against it in that suit; and, second, of what matter such a judgment is conclusive.

As to the first of these questions, seven notices of the suit were admittedly given by the plaintiff and received by the defendant, the first on Sept. 22, 1926, approximately five months after the suit was instituted and three weeks before the statement of claim was filed, and the last on May 4, 1927, two weeks before the trial. The defendant contends that these were not due and timely notices, since the City had knowledge of the time and place of the accident when the suit was brought and the first notice was not given until five months thereafter. We cannot agree with this contention. It is difficult to see how the mere bringing of the suit, without the service of the statement, gave the City any information as to where, or when, the accident happened. Be that as it may, however, the City was under no duty to give notice to the defendant instantly upon the bringing of the suit. Its only duty was to give the defendant, by notice of the suit, a reasonable opportunity to come in and defend if it so desired: Orth v. Consumers Gas Co., 280 Pa. 118; Oceanic Steam Navigation Co. v. Campania Transatlantica Espanola, 144 N. Y. 663. This duty was fully discharged in the present case, for the notice was received eight months before the trial and even before any pleadings whatsoever had been filed. Ordinarily, the sufficiency of the notice should be determined as from the trial, rather than from the institution of the suit, for the test is whether the defendant has been given a chance to defend himself at the trial. In such a question as this, each case must stand upon its own facts, and special circumstances may exist to render a notice insufficient which, ordinarily, would be sufficient. They must be pleaded, however, and it is no sufficient reply to a statement of claim, setting forth notices such as were given here, to aver merely that they were not due and timely. The affidavit of defense is, therefore, insufficient to prevent judgment, in so far as its answer to the notices given is concerned, and the defendant is accordingly bound by the matters adjudicated by the jury in the suit against the City.

This brings us to a consideration of what matters are concluded by the judgment. The averments of the affidavit of defense in this regard consist of denials that there was a dangerous hole or depression on defendant’s property, that Brosnahan was injured on premises owned by the defendant, and that the record in the suit against the City locates the accident as happening on the property of the defendant. In all of these denials, the defendant is concluded by the judgment against the plaintiff. He is concluded in the first because he has admitted ownership of the property on which the hole is charged to have been, and, as will be pointed out later, the record in the other case fixes the hole on that property. So, also, the judgment establishes that Brosnahan was injured by a defect shown to be on property which the defendant admits he owns.

As to the last denial, that the record in the suit against the City, which is incorporated by reference in the statement, locates the accident as happening on property of the defendant, an inspection of the record shows that it does so locate the accident. The issues decided by the jury are determined by the pleadings, not by the notes of testimony taken at the trial, and the statement of claim fixes the hole upon property which the defendant admits it owns. The defendant contends, however, that the notes of testimony disclose a variance between the allegata and probata, and that, therefore, it can show that the accident did not happen on its property. This is not, in our opinion, a valid contention. The rule is that the property owner is concluded by the judgment in all issues which, under the pleadings, were necessary to support the judgment; that is to say, all material issues which the owner could have raised had he exercised his right to come in and defend the suit. Examing the record in the light of this rule, it is apparent that if the defendant had gone in and defended the case, it could have taken advantage of the variance, if it existed, and protected itself from the judgment at the trial. In addition, while an inspection of the testimony shows that there is some indefiniteness and uncertainty in the proof as to the exact spot where the accident happened, it clearly fixes the accident as occurring within the limits of the defendant’s property, and nowhere else. It, therefore, follows that the affidavit of defense is insufficient to raise an issue as to the accident happening on the defendant’s property.

This brings us to the fourth and last question for our consideration, namely, whether the suit has been prematurely brought. The affidavit of defense avers that the statement “fails to show payment by the City of Philadelphia of any moneys to James Brosnahan, or Anna Brosnahan, and further fails to show any justification for the failure of the City to file a motion for a new trial, and to resist the issuance of the mandamus execution alleged to have been issued May 25, 1927, the day on which judgments were entered against the City..” The latter part of this averment is without merit, for the City was under no duty to the defendant to move for a new trial or to stay the issuance of the mandamus by appealing from the judgment; and this is especially so since the defendant elected to stand aloof and to ignore the notices it received, when, at any time, it could have protected itself by assuming the conduct of the defense.

The first part of the averment, that the City has failed to show payment, is equally without merit. It is true that in contracts of indemnity the law denies the right of recovery to the indemnitee until he has made payment or otherwise suffered an actual loss or damage: Wheeler v. Equitable Trust Co., 206 Pa. 428. It does not, however, require payment to be made in money alone in order to fix the indemnitor’s liability. Anything which discharges the original obligation is payment. Thus, the receipt of mortgages by a creditor in satisfaction of the debt has been held to constitute payment: Patterson v. Patterson, 23 Pa. 464; bonds similarly received at a valuation have been likewise held to be payment: Hill v. Fuller, 188 Mass. 195. So, also, is the giving of a judgment: Bishop v. Smith, 57 Atl. Repr. 874; the transfer of a bankrupt’s property to a trustee: Travellers Ins. Co. v. Moses, 63 N. J. Eq. 260; and the giving of a promissory note: Bausman v. Credit Guarantee Co., 47 Minn. 377; Kennedy v. Fidelity and Casualty Co. of N. Y., 100 Minn. 1. The authorities everywhere are in accord upon this proposition. In the present case, the record shows not only that the mandamus execution was issued on the judgment, but also that the judgment creditor accepted the mandamus as payment, and, on June 9, 1927, entered satisfaction of the judgment of record. This clearly was payment of the judgment, and it follows that the suit which was begun on July 8, 1927, was not prematurely brought.

The rule for judgment for want of a sufficient affidavit of defense is, therefore, made absolute.


author: Bakber, P. J.,

text:
    Craig’s Estate.

      Wills — Trusts and trustees — Disposition of income — Survivorship.
    Where testatrix gives one-third of her estate to a trustee to pay the income to a daughter for life, and, after her death, to her children, hut, if she shall die without children, to pay the net income to two of testatrix’s sons in equal proportions for their lives, and, after their death, the principal to their children, and nothing is said as to the income from the date of the death of the sister without children to the death of the surviving brother, the income accruing after the death of one of the brothers without children, following the death of the sister without children, goes to the representatives of the deceased brother until the death of the other brother.
    Petition for distribution. O. C. Carbon Co., A. & A. Docket. 14, page 174, File No. 4550.
    J. C. & A. S. Loose, for Bertha E. Craig, individually and as executrix of the will of Douglas Craig.

      William G. Thomas, for Henry D. Craig.

      Ben Branch, for Douglas Craig and Catharine Craig, children of Henry D. Craig.
    May 19, 1927.
   Bakber, P. J.,

Upon a petition presented March 8, 1926, by Bertha E. Craig, the court, is asked, in this proceeding, without reference to an auditor, to award petitioner, as executrix under the will of Douglas Craig, deceased, or as his widow, a one-sixth share of income now in the hands of the Mauch Chunk Trust Company, trustee under the will of Belle D. Craig, late of Mauch Chunk, Carbon County, Pennsylvania, deceased, as per first account filed May 8, 1925, in the Orphans’ Court of Carbon County, and, no exceptions having been filed thereto, confirmed absolutely July 8, 1925.

Belle D, Craig died Sept. 14, 1914, and by her will, bearing date Nov. 15, 1910, and codicil thereto revoking the appointment of one of the executors therein named, and appointing another in his place, dated Aug. 5, 1913, after a number of individual bequests, the testatrix devised and bequeathed the residue of her estate to the Mauch Chunk Trust Company, in trust, to collect the income thereof and pay the same over in quarter-yearly payments to her three children, Douglas Craig, Henry D. Craig and Gay Gordon Craig, and the surviving widows, if any, while remaining unmarried, of the two sons, during their natural lives, with remainders as to principal at the termination of the trust to their respective children, and cross-remainders in case of death without issue.

Gay Gordon Craig, a daughter, born Dec. 15, 1881, died July 12, 1913, a little over a year before her mother, leaving to survive her no children, but a husband, Carl Steinmaier. This husband is not named or interested in the will of the testatrix.

Douglas Craig, a son, born Oct. 14, 1867, married petitioner, Bertha Evelyn Craig, June 30, 1897, died Nov. 5, 1923, leaving to survive him no children, but his widow, Bertha Evelyn Craig, to whom, by his will, duly probated, he devised and bequeathed all his property, appointed her executrix thereof, and to whom letters testamentary upon his estate were granted.

Henry D. Craig, a son, bom May 27, 1871, married Aug. 28, 1902, and is still living with his wife and two children, namely, Douglas Craig, bom Aug. 30, 1903, and Catharine Craig, born Sept. 21,1907.

The testatrix had another married daughter, Harriet Craig Wood, who died prior to the making of her mother’s will in 1910, and to whose daughter testatrix gave a legacy of $5000, payable when she attained the age of twenty-one years. This granddaughter is still living, having for her guardian the Easton Trust Company.

The trustee is directed by the testatrix to collect the interest and dividends upon the one-third of the residue of her estate “and pay the net income derived therefrom in quarter-yearly payments to my son, Douglas Craig, for and during the full term of his natural life, and from and immediately after his decease to pay said net income to his widow, should he leave a widow, for and during the full term of her natural life, or as long as she remains his widow, and from and immediately after the decease of both my said son, Douglas, and his said widow, or after the remarriage of said widow, should she survive him, to transfer, assign and pay over the said one-third of said residue . . . absolutely to the children of my said son, Douglas.”

One-third of the residue is given upon a like trust for Henry D. Craig. One-third of said residue is given in trust to collect the interest and dividends thereon “and pay the net income derived therefrom in quarter-yearly payments unto my daughter, Gay Gordon Craig, for and during the full term of her natural life, for her sole and separate use, support and maintenance, and without any control of her husband, and her receipt to be the only discharge therefor, and from and immediately after her decease to transfer, assign and pay over the said one-third of said residue, or the bonds, stocks or securities in which the same may be invested, together with any income derived therefrom at that time in the hands of said trustee, absolutely to the children of my said daughter, Gay Gordon, then living and to the issue of any such children then deceased, so that, however, the issue of any deceased child of my said daughter, Gay Gordon, shall receive the share only of his, her or their deceased parent, but should my said daughter, Gay Gordon, die without issue, her surviving, then and in such case, to pay said net income derived from said one-third share of said residue in equal proportions, quarter-yearly, to my said sons, Douglas and Henry D., during the full term of their natural lives, and from and immediately after their decease, or should they have predeceased my said daughter, Gay Gordon, leaving children or issue him, her or them surviving, then upon the decease of my said daughter, Gay Gordon, without issue, her surviving, to transfer, assign and pay over absolutely to the children or issue of my said sons, Douglas and Henry D., said share, in equal parts, so that, nevertheless, the children or issue of each shall receive only the part of which his, her or their parents had, or should have had, the income, and in default of children or issue of either of the said Douglas or Henry D., to pay said share absolutely to the children or issue of the other or others, so that, nevertheless, the children or issue of each shall receive only the part of which his, her or their parent had, or should have had, the income.”

During their joint lives, Douglas and Henry D. each received, since the death of their mother, the income of the one-third of the residue held in trust for them, and, by reason of the death of their sister before her mother, also a one-sixth of the income of the trust created for Gay Gordon.

Henry D. Craig continues to receive the income of the one-third bequeathed to him and the one-half of the one-third bequeathed to his sister, Gay Gordon, and now claims to be entitled to receive, in addition, the one-sixth received by his brother Douglas during his lifetime.

Since the death of Douglas in 1923, Bertha Evelyn, his widow, has received the one-third of the income bequeathed to her husband and now claims, as his widow or executrix, to be entitled to one-half of the income bequeathed to Gay Gordon and received by her husband during his lifetime.

The will of the testatrix provides: “But should my said daughter, Gay Gordon, die without issue, her surviving, then and in such case to pay said net income derived from said one-third share of said residue in equal proportions quarter-yearly to my said sons, Douglas and Henry D., during the full term of their natural lives.” This provision is followed by a further provision in relation to the payment of the shares of residue after the decease of Douglas and Henry D.

The daughter, Gay Gordon, having died before her mother, the payment of the one-third of the net income to the two sons is, under the will, to continue “during the full term of their natural lives,” without any words of survivor-ship or limitation over as to income in case of the death of either without leaving children him surviving.

Douglas having died in 1923, the trust, as to the one-third bequeathed to Gay Gordon, must continue during the natural life of Henry D., and the question for determination then is, who is entitled to have this one-sixth of the income received by Douglas during his natural life?

Neither in the trust created for Douglas or for Henry D. is there any disposition made of income in case of the death of either of the two legatees in remainder without children, him or her surviving.

Henry D. Craig claims the fund as the sole surviving child of the testatrix, but the difficulty with this claim is that the bequest of the income is to Douglas and Henry D. for their natural lives. Nothing is said about the rights of a survivor, and to sustain the claim upon this ground requires the insertion of words not found in the will.

“It is true the Act of March 31, 1812, 5 Sm. Laws, 395, has abolished joint-tenancy in this State, but that act has never been held to prevent a testator creating a joint-tenancy by the express language of his will or by necessary implication:” Jones v. Cable, 114 Pa. 586, 591. The will contains no express language creating a joint-tenancy, and we can find none by necessary implication.

By changing the names of the beneficiaries, the language of Grothe’s Estate, 229 Pa. 186,191, may be applied to the present will: “His right to the income rests wholly on the doctrine of an implied gift or cross-limitation. But this must arise from the language of the will, and unless there is a clear implication that such limitation was intended by the testator, the fund cannot be taken from the heir and disposed of through another channel of distribution. The gift of the income is not to a class, but to the three (two) beneficiaries nominatim; neither is it a joint-tenancy with the right of survivorship. . . . Whether intentionally or otherwise, the testatrix did not dispose of the income after the life estate given to the three (two) individuals, and, therefore, there is no reason to suppose that she intended that the survivor should take the whole income until the distribution of the corpus of the trust fund, unless the presumptive intention to avoid an intestacy should disclose such purpose. This, however, is not a sufficient reason for implying a gift or a cross-limitation. If it was, no intestacy would ever occur.”

In Dillin’s Estate, 47 Pa. Superior Ct. 158, 162, the same principle, applied by Judge Penrose, is quoted: “There is no restriction or limitation over, and the beneficial interests last until the termination of the trust, viz., until the death of the survivor of the original cestui que trusts. The beneficiaries are equitable tenants pur autre vie, and death in the lifetime of the cestui que vie does not, of course, terminate their estate, which passes to their assignees, if they have made assignments, and to their personal representatives, if they have not: Little’s Appeal, 81 Pa. 190.”

After giving the income of the trust for Gay Gordon to her two brothers during the full term of their natural lives, the will provides that, “from and immediately after their decease, or should they have predeceased my said daughter, Gay Gordon, leaving children or issue him, her or them surviving, then upon the decease of my said daughter, Gay Gordon, without issue, her surviving, to transfer, assign and pay over absolutely to the children or issue of my said sons, Douglas and Henry D., said share in equal parts.”

It has been repeatedly said that “neither precedent nor rules of construction can overcome the testatrix’s expressed intent,” but in this will we can find no expressed intent as to the disposition of the income accruing after the death of one of the two sons, without issue, him surviving, there being no gift over of the income upon the death of Douglas during the continuance of the trust. Nor is there anything upon the face of the will to indicate the gift of the income is limited to the life of Douglas; the gift is for their joint lives.

After giving to her two sons during their natural lives the income of the one-third .held for Gay Gordon, the testatrix directs after their decease, or should they predecease her daughter, leaving children or issue, him, her or them surviving, the trustee to pay over to the children or issue of her two sons said share in equal parts, the children or issue of each to receive only the part the parents had or should have had the income, and in default of children or issue of either Douglas or Henry, to pay said share to the children or issue of the other, and repeating the direction that the children or issue of each should only receive the part of which the parent had or should have had the income.

While the disposition of this one-third share of the principal is not controlling, it should be carefully considered for the purpose of ascertaining the possible intent of the testatrix. Had Douglas left children him surviving, then, upon the termination of the trust for Gay Gordon, such children would be entitled to receive the part of the principal of which their parent had the income, but nothing is said about their being entitled to -receive the income during the interval.

In default of Douglas leaving children or issue, the trustee is directed, after the death of the two sons, to pay this one-sixth part of the principal to the children of Henry. This direction to pay to the children of the other is followed by the repetition of the clause that the children of each shall only receive the part or share of which their parent had the income. The trust is to continue “during the full term of their natural lives,” and not until “after their decease” is the trustee authorized to pay over to the children or issue of the two sons said shares in equal parts.

To award to Henry the income of this one-sixth share received by Douglas during life, because the children of Henry will, if they survive their father, receive this part of the principal, is to assume that Henry should now have the income, the very question in dispute, for the reason that, under the will, the children are only entitled to the part of which their parent had or should have had the income, and for the further reason that the will makes no disposition of this portion of the income after the decease of Douglas, either with or without children.

While it is true “we must put ourselves in testator’s place in order to determine what he meant by his will (Shaffer’s Estate, 262 Pa. 15), but when we have reached that coign of vantage, we must still declare the meaning of the language used and not some other possible but undisclosed purpose: Ludwiek’s Estate, 269 Pa. 365. Were this not so, verbal wills might become quite common, despite the requirement of the Wills Act:” Yates’s Estate, 281 Pa. 178, 185.

Finding nothing in the language used by the testatrix designating the person who is to receive the income held by the trustee for distribution, we are obliged to turn to precedent and principle for guidance.

In Shuster’s Estate, 4 D. & C. 119, the testator bequeaths as follows:

“I bequeath all my real estate and personal property to my only brother, Thomas F. Shuster, during his natural life, at his death the income to go to my niece, Kate M. Haffa, and my nephew, Henry Shuster, children of my deceased brother, David Shuster, share and share alike, at the death of my niece and nephew the entire estate to go to the children of my niece, Kate M. Haffa, absolutely. . .

In passing upon the question of distribution of income after the death of Henry Shuster, the Auditing Judge says: “There is no gift over in event of the death of either nephew or niece. When both are dead, the children of Kate M. Haffa take the corpus. An intestacy of income is not to be presumed and survivorship in income must be shown by express provision or by necessary implication. In this will there is no express provision for sur-vivorship between the nephew and niece, in that they are to take all of the income, share and share alike: Little’s Appeal, 81 Pa. 190, and Harned’s Estate, 273 Pa. 237.”

In passing upon the exceptions to the adjudication, the court says: “The nephew is dead and Kate M. Haffa, the exceptant, asks that his one-half of the income be awarded to her. There are no words of survivorship, nor is there a gift to a class. The gift over is not at the ‘respective’ deaths of the niece and nephew of one-half the income or principal, but upon the deaths of both, and then of the ‘entire’ fund. The gift of the income to the niece and nephew is not limited to their respective lives, but for their joint lives, and, hence, the nephew’s share of the income is payable to his administratrix during the life of Kate M. Haffa.”

The leading case governing the distribution of income accruing after a life estate without a limitation over during the continuance of the trust is Little’s Appeal, 81 Pa. 190, 192.

“The testator (William Agnew) gives the entire income from his estate, consisting wholly of personalty, during the life of his daughter, Elizabeth, or while she shall remain single, to his two daughters, Mrs. Martha J. Little and the said Elizabeth, the former to receive one-third and the latter two-thirds of said income. Mrs. Little is now deceased, leaving a husband and children; Elizabeth is still living and unmarried. The principal of the estate is not to be distributed until after Elizabeth marries or dies. In the meantime, what is to become of the one-third of the income formerly paid to Mrs. Little? It is claimed by the adminstrator of the latter. The court below disallowed this claim, and held, as to the income referred to, that William Agnew died intestate, and it would go to his next of kin.

“It is to be observed that there is no gift over of this income upon the death of Mrs. Little. Nor is it a gift for life; it is a gift pur autre vie. It is true it may not last for the life of Elizabeth, by reason of the contingency of her possible marriage. It is, nevertheless, a gift for the life of Elizabeth, subject to being determined by her marriage. Was the gift of this income to Mrs. Little an absolute bequest thereof, and so vested as to go to her legal representatives in case of her death prior to the marriage or death of Elizabeth? We can discover no intent of the testator to die intestate as to this or any other portion of his estate, and no such intention is to be presumed. The distribution of the principal is expressly postponed until after the marriage or death of Elizabeth. The right to one-third of the income became vested in Mrs. Little immediately upon the death of Miss (Mr.) Agnew. Did the testator intend that it should be for her life only, and in the event of her death go to his next of kin under the intestate laws? There is certainly nothing upon the face of the will from which such intent can be gathered, and, as we have before observed, no such can be presumed. In the same paragraph of the will in which the above-recited provision occurs the testator says: ‘If either of my children should die leaving children living at my death, then I desire and direct that the share of such deceased child shall be given to his or her child or children, as the case may be.’ The testator is here speaking of the principal of his estate, and we cannot regard it as controlling the distribution of the income. Yet it is not without weight upon the question of intent. The testator has used no words in this will to show an intent to limit the gift of the income to Mrs. Little for her own life. In the absence of any such express purpose, we must look to the legal effect of the language he has employed. . . . We are of opinion that the gift of this income was a vested interest during the lifetime of the testator’s daughter, Elizabeth, or so long as she shall remain unmarried, and that upon the death of Mrs. Little, it passed to her legal representatives for the period above stated.”

Sprang’s Estate, 49 Pa. Superior Ct. 314, follows Little’s Appeal and is said to be ruled by it.

“There is no gift over; nothing which expressly directs where the income is to go before the arrival of the time fixed for the final distribution of the principal if a child should die without issue. This was the ground upon which Little’s Appeal, 81 Pa. 190, rested:” Bechtel’s Estate, 85 Pa. Superior Ct. 14, 17.

In Murphey’s Estate, 21 Dist. R. 1103, after reviewing the cases of Little’s Appeal, 81 Pa. 190; Leech's Estate, 228 Pa. 311, and Dillin’s Estate, 18 Dist. R. 420, affirmed in 47 Pa. Superior Ct. 158, Judge Gest said: “No limitation over in case he leaves no issue and no express indication of any intention to benefit the survivors of the class in case there should be no issue; and no such intention can be implied, for the gift in favor of the issue of the children who left issue cannot affect the shares of children who died without leaving issue,” citing Carstensen’s Estate, 196 Pa. 325; Burk’s Estate, 21 Dist. R. 357.

Gay Gordon being dead, this one-sixth of the income given Douglas vested in him at the death of his mother under her will, and there being no limitation over, “the beneficial interests last until the termination of the trust, viz., until the death of the survivor of the original cestui que trusts. The beneficiaries are equitable tenants pur autre vie, and death in the lifetime of the cestui que vie does not, of course, terminate their estate, which passes to their assignees, if they have made assignments, and to their personal representatives if they have not,” as held by Judge Penrose. Citing Little’s Appeal, 81 Pa. 190. The above is cited with approval in Harned’s Estate, 54 Pa. Superior Ct. 47, 50, followed in 273 Pa. 237, and in Dillin’s Estate, 47 Pa. Superior Ct. 158, 162.

The funds in the hands of the trustee for distribution are, therefore, awarded to the executrix of the estate of Douglas Craig, deceased.

And now, May 19, 1927, the rule granted March 8, 1926, in the above-stated case is made absolute, and the Mauch Chunk Trust Company, trustee under the will of Belle D. Craig, is authorized and directed to pay Bertha Evelyn Craig, executrix under the will of Douglas Craig, deceased, the- sum of $1989.04, with any interest due thereon, being the income in the hands of the trustee reserved, as per account filed, and held for the interest of Gay Gordon Craig under the will of Belle D. Craig, deceased.