author: Gummey, J.,

text:
    Mayhew’s Estate.

      Wills — Rule in Shelley’s Case — Issue—Definite failure when testator died before July 9, 1897.

    Testatrix died Eeb. 13, 1885, leaving a -will in which she said she did not desire her real estate to be sold during her daughter G.’s lifetime, and devised said real estate to G. for life, with remainder to her issue, with gift over if she died without issue. By a subsequent clause, she appointed trustees: Eeld, that “issue” was used in the sense of “descendants” as distinguished from “heirs of the body,” and that the remaindermen were to be ascertained at G.’s death; hence, the failure of issue was definite and G. to oh only a life estate.
    Exceptions to adjudication. O. C. Phila. Co., July T., 1887, No. 137.

      Paul M. Rosenwey, for exceptions; John Booth Miller, contra.
    March 3, 1922.
   Gummey, J.,

The rule in Shelley’s Case is not a rule of construction, but of law, and it is never applied until the meaning of the testator is first ascertained. If the words of the will show that the testator intended the remaindermen to take directly from him, and not by inheritance from the devisee of the life estate, then the mile has no application; on the other hand, if they show a contrary intention, the rule applies: Stout v. Good, 245 Pa. 383, 387, and cases cited.

The testatrix died Feb. 13, 1885; her daughter, Gertrude Estelle Mayhew (now Pike), survived her and has issue, six children, all of whom are living; and the material parts of the will which we are required to consider are as follows:

“I wish my real estate kept in good repair, and I do not desire it to be sold during the life time of my daughter Gertrude Estelle Mayhew.
“I give and bequeath to my said daughter Gertrude Estelle Mayhew all my personal property and the interest of all real estate belonging to me, as long as she lives, but if my said daughter Gertrude Estelle Mayhew should marry, then at her death the interest of my real estate goes to her issue.
“But in the event of my daughter’s death without issue, all my property shall go to the Home for Destitute Colored Children, located at Marylandville, on the Darby Road.
“I appoint Messrs. William Burton Sloan, William Penn Johnson, Patrick Smith to be the executors and trustees of my will and guardians of my daughter during her minority.
“Philadelphia, January 6th, 1872.”

Whether the personal property and the real estate follow the same course it is not necessary to decide, as it appears from a prior account that all of the personalty was consumed in the payment of the decedent’s debts and the costs of administration, so that in construing the will we are considering its effect upon the real estate only; the fund before the court representing the proceeds from real estate, to wit, the principal of a ground rent.

We believe that this will shows clearly an intention on the part of the testatrix to give her daughter a life estate only, and that the remaindermen take, not by inheritance from the life-tenant, but directly from the testatrix.

The direction in the will that the real estate should not be sold during the life of testatrix’s daughter, coupled with the gift of “the interest of all real estate” as long as the daughter lives, is significant as showing the testatrix’s intention that her daughter should take a life estate only; that is, the real estate was to be kept intact for the benefit of her daughter as long as she lived, and at her death it was to go to her issue, if any; if none, then to the charity. This thought is further evidenced by the subsequent clause of the will in which trustees are appointed, thus indicating an intention that the real estate should be held in trust for the benefit of the life-tenant designated in the will, and that upon the termination of the life estate the corpus should pass to the remaindermen.

There are no technical words of limitation in the will, such as “heirs” or “heirs of the body,” which, without more, would make the rule in Shelley’s Case applicable (See Stout v. Good, 245 Pa. 383, 387), but the estate is limited to the “issue” of the testatrix’s daughter. While the word “issue” in a will means prima facie the same as “heirs of the body,” and is frequently used as a word of limitation, yet it is not technically so, and readily yields to a context showing that it was intended as a word of purchase (Taylor v. Taylor, 63 Pa. 481); or as the thought is expressed by Mr. Chief Justice Moschzisker in English’s Estate, 270 Pa. 1, 4: “While ‘issue,’ when used in a devise, has been held time and again to mean the same as ‘heirs of the body,’ yet such construction was adopted only on the theory that the word was probably so intended by the testator, and not with the idea that the term ‘issue,’ of and in itself, is the equivalent of the technical phrase ‘heirs of the body.’ ”

We do not believe that this testatrix used the word “issue” as the equivalent of the technical phrase “heirs of the body;” but in the sense of “descendants.” See Lee v. Sanson, 245 Pa. 392. When the will was made testatrix’s daughter Gertrude was unmarried; she subsequently married, thus making effective the provisions in the will to take effect upon her marriage, and the word “then,” in the expression “then at her death,” shows conclusively that the death of the daughter was the time fixed by the testatrix when the daughter’s descendants, if any, should come into the enjoyment of the estate; and if she left no descendants capable of taking at that time, then the alternate gift to the charity would immediately take effect.

As the testatrix died prior to the passage of the Act of July 9, 1897, P. L. 213 (re-enacted in the Wills Act of 1917, see section 14, P. L. 408), we have, of course, construed the will with reference to the Act of 1855 and cases decided under it.

The exceptions are dismissed.


source: Caselaw Access Project

author: Henderson, J.,

license: Public Domain

text:
    Garraty’s Estate.

      Testamentary guardians — Right of grandfather to appoint guardian of the estate given to grandchildren in his will — Fiduciaries Act of June 7,1917.

    A grandfather may not appoint a testamentary guardian of the estate he bequeaths to his grandchildren unless he expressly imposes active duties upon the guardian touching the property so as to make him, in effect, a trustee or curator. Where no active duties are expressly imposed upon the guardian by the testator, none will be implied, and the appointment is a nullity. To make such implication would be in the teeth of section 59 (c) of the Fiduciaries Act forbidding an executor or trustee to be appointed guardian of a minor having an interest in the estate.
    Exceptions to adjudication. O. C. Phila. Co., Oct. T., 1921, No. 658.
    Testator appointed his attorney his executor and his co-trustee with a trust company of the general residue of his estate for a term of five years, with directions to collect rents, income and dividends, pay taxes, charges and assessments on the property, and pay the net income to specified legatees, among whom were his grandchildren, the children of a deceased son, who were given a one-fourth interest in the property, and to whom the trustees, at the expiration of the aforesaid term of five years, were directed to convey certain real and personal property forming part of the fund. He also appointed his attorney guardian of the estates of such of his grandchildren taking under his will as might be minors at his death. He imposed no express duties touching the estates of the minors upon the guardian so appointed. The auditing judge held the appointment void and refused to recognize the appointee’s approval of the trustee’s account as “guardian.”

      H, S. J. Sickel, for exceptions.
    Feb. 24, 1922.
   Henderson, J.,

The testator has appointed his attorney as executor of his will, as co-trustee with a trust company of a trust fund for his minor grandchildren, and also as “guardian” for these minor grandchildren. The auditing judge refused to recognize his approval of the account as “guardian,” and exceptions were filed to this refusal of recognition.

There is no authority for a grandfather to appoint a guardian. The right is purely statutory and is conferred on the father and in certain cases upon the mother: Mathiesen’s Estate, 22 Dist. R. 481.

In the latter estate Judge Dallett said: “Where the gift, however, is to the minor absolutely and no duties are imposed upon the ‘guardian’ appointed by a stranger, the appointment must and will be treated as a nullity. So in Melcher’s Estate, 3 Phila. 26, Thompson, P. J., declined to award to a guardian appointed by a grandfather, holding that, as the guardian had ‘no beneficial interest to sustain or duty to perform,’ the trust property passed to the minors, ‘to be received and administered by such guardian as the court may appoint.’ And see Quinn’s Estate, 15 Phila. 594; Darmody’s Estate, 6 W. N. C. 487, and Holbrook’s Estate, 18 Phila. 180, where Penrose, J., for this court said: ‘It is true, where it appears that it is intended that the person erroneously designated guardian is to have the control and management of the fund, the instrument is to be regarded as creating a trust: Vanartsdalen v. Vanartedalen and Cornell, 2 Harris, 384; Lukens’s Appeal, 11 Wright, 356; but a trust will not be implied, ex vi termini, from the mere appointment of a ‘guardian’ by one not having the power to appoint.’ ”

We must now apply these principles to the instant case. By the will the attorney is appointed executor, co-trustee for, inter alia, these minors, who are given certain income for a period of five years and then a share of the principal absolutely. The will then provides: “And I do further nominate . . . my said attorney ... as the guardian of the estates of . . . my grandchildren. . . .”

While the grandfather might have imposed active duties upon his “guardian,” he has not done so, and in their absence none will be implied. To make such an implication would also now be in the teeth of section 59 (o) of the Fiduciaries Act (1917), forbidding an executor or trustee to be appointed guardian of a minor having an interest in the estate.

The exceptions are dismissed and the adjudication is confirmed absolutely.


author: Thompson, J.,

text:
    Freed’s Estate.
    , Statute of limitations — Waiver—Testamentary acknowledgment of debt identified by declaration to residuary legatee.

    1. Where a. testator, who had borrowed money from his son, H., for which he had given him a written acknowledgment of indebtedness, directed in his will that H. should be paid 4 per cent, interest on all money borrowed from him, and subsequently told one of the residuary legatees that H. had the paper showing the amount of money that had been borrowed, which paper should be presented “if anything happened,” and H. should get his money, the testimony of the residuary legatee is competent, as it was against his interest so to testify, and sufficiently identifies the debt acknowledged in the will to waive the bar of the statute of limitations.

      Beneficial societies — Death benefits distinguished from funeral benefits.

    2. Whether a benefit paid the widow of a deceased member of a fraternal beneficial society is a funeral benefit or a death benefit depends upon the constitution, and by-laws of the society. Money paid as a funeral benefit is impressed with a trust for that purpose, and the estate of the deceased cannot be resorted to for payment of such expenses until the funeral benefits are exhausted.
    Exceptions to adjudication. O. C. Phila. Co., April T., 1921, No. 67.
    The testator bequeathed the general residue to his widow and three sons.

      H. James Sautter, for exceptant.

      Bronte Greenwood, J'r., and Harry Clayton Reynolds for Harry G. Freed, contra exceptions to allowance of Freed’s claim.

      William P. B. Hansell, contra exceptions as to funeral benefits.
    Dec. 21, 1921.
   Thompson, J.,

At the audit of the account of the executors under the will of J. Edwin Freed, deceased, who died Nov. 21, 1920, a claim was presented by his son, Harry G. Freed, for $342, with interest from respective dates at 4 per cent, to the date of decedent’s death, and thereafter at 6 per cent, to date of payment, upon a paper signed by testator as follows:

“Phila. Pa. Aug 31st 1913
“This is to certify that I have borrowed from my son Harry G. Freed various sums of money as follows. Interest 4 per cent.
Aug 25th 1909..........$200.00
Sept 20th 1910.......... 28.00 J. Edwin Freed.”
Nov. 19th 1912.......... 24.00
Sept. 1st 1913........... 100.00

The auditing judge held that sufficient facts were shown at the audit to suspend the running of the statute of limitations and allowed the claim, to which ruling exceptions have been filed.

Paragraph four of the will is as follows:

“My son Harry shall receive the sum of twenty five ($25.00) Dollars as compensation for his loyalty and financial aid when same was needed by me. He shall be paid 4 per cent, interest on all money loaned to me providing same is not paid back to him, and the interest is not paid at the time of my death.”

The testimony of Wilson E. Freed, one of testator’s sons and one of the executors, was had under objection, and he testified as follows: “Q. Did you at any time have any conversation with your father with reference to your brother, Harry G. Freed? A. About three months before his death he was at my house and said if anything happened to him; my brother Allison and myself should see after him. My father said: ‘Harry has the paper showing the amount of money that has been borrowed,’ and that paper shall be presented if anything happened and Harry shall get his money.”

It is undoubtedly the law that, to take a case out of the operation of the statute of limitations, the acknowledgment must be clear, distinct and unequivocal. In Maniatakis’s Estate, 258 Pa. 11, 15, it is said: “To be consistent with a promise to pay the debt, the acknowledgment must be such as indicates an intention to pay the debt existing at the time of the acknowledgment. The time of payment need not be immediate, but the intention to pay must be present.”

It will be observed that the testator expressly directs, in paragraph four above quoted, that interest should be paid on his indebtedness to claimant, and this direction, being carried out; automatically removes the bar of the statute. “Payment of interest on a debt will take the debt out of the operation of the statute, or revive a debt where the bar is complete:” 25 Cyc., 1373. As was said by Ashman, J., in Pillion’s Estate, 35 W. N. C. 68: “Where a testator directs the executor to pay his just debts, and immediately proceeds to enumerate them, it would seem that he intends that they shall be paid at his death, whenever that may happen, because, until that event, it will be impossible for the executor to obey him.”

A general direction to pay debts would not include a debt barred by the statute: 40 Cyc., 2061. We might be persuaded to hold that, since testator directed interest to be paid claimant “on all money loaned to me providing same is not paid back to him,” there is an implied direction to pay the principal if not paid at the time of testator’s death; and, further, in paragraph eight of the will of testator, he directs that “the creditors if any shall be paid first,” and in paragraph nine he says that, “after the indebtedness and the bequests are paid, the balance of the money,” etc., which might be considered as a direction to pay the claim in question. A debt does not cease to become such, even though barred by the statute of. limitations. Mr. Justice Mitchell, in Woods v. Irwin, 141 Pa. 278, 293, says: “A debt barred by the statute of limitations is still a debt, though the remedy upon it be suspended or gone. Its force as an existing obligation, even though only moral, is such that a promise to pay is binding without other consideration. And the debtor may make such promise without regard to its effect upon other parties, even though creditors.” This was a case where the executrix did not plead the statute of limitations and allowed a judgment to be recovered against her as such, and the same was attacked by other creditors on the ground of fraud; but it was held that the judgment was valid, although this doctrine seems to have been modified in Claghorn’s Estate, 181 Pa. 600, and id., 181 Pa. 608.

However, in view of our allowing the claim at bar on other grounds, it is not necessary for us to hold that the will contains an implied direction to pay the debt. We are of opinion that the testator has expressly directed the payment of this debt, and while the provision in his will in respect to its payment does not specify the amount, we have a witness who testified that testator, shortly before his death, identified the debt by referring to the fact that his son had a paper showing the amount, and that the witness to whom testator made this statement is competent to testify appears from the fact that it was against his interest so to do. In Clarke’s Estate, 13 Dist. R. 3, Judge Hawkins said the following: “The bar of the statute of limitations was conceded as respected compensation for services, and the allowance must, therefore, be limited to the last six years; but it has no application to the loan, for the reason that Mrs. Clarke admitted her liability within that time. The will contains a distinct acknowledgment of the existence of the debt, and the amount was made certain by reference to Mrs. Lloyd’s recollection of the facts.”

For the reasons above given, we are of opinion that testator made such an acknowledgment of his indebtedness to his son by his will, and identified by the testimony of the witness above referred to, as to take the case out of the operation of the statute of limitations, and that the action of the auditing judge in allowing said claim is correct.

Exceptions have also been filed to the action of the auditing judge in holding that the sum of $250 paid the widow by the Order of Independent Americans was paid to her as funeral benefits and not as benefits generally. The Order of Independent Americans of the State of Pennsylvania is what is known as a fraternal organization, and has a constitution and by-laws for the State and subordinate councils. Article 3, section 4, of the State organization, states that its purpose is to “establish a sick and funeral fund;” article 15, section 4, provides that the council to which the deceased belonged must provide “a sufficient sum to give the deceased brother decent burial, and assist the widow or dependent relative in such sum as the council by its constitution and by-laws may determine;” article 16, section 11, provides for the payment of $250 on the death of a brother as “a death benefit.” The by-laws of Fran-cisville Council No. 837, Order of Independent Americans, the subordinate council of which the decedent was a member, provides, in article 6, section 1, that the weekly dues of contributing members who are enrolled in the Funeral Benefit Association of the United States, Class A, shall be 21 cents. By article 7, section 3, upon the death of a member in good standing and included in Class A, after membership of 271 days or over, there shall be paid his widow or nearest dependent relative the sum of $250, and in the same section it is provided that the funeral benefits shall not be paid until received from the Funeral Benefit Association of which the council may be a member. It will thus be seen that the only payment that can be made to a widow of a deceased member is a funeral benefit.

We are of opinion that the auditing judge correctly interpreted the articles and sections above referred to as meaning that the $250 paid the widow of the decedent was paid to her as a funeral benefit and in relief of those expenses incident to a death, and that the sum was, therefore, impressed with a trust for that purpose, and that the sum should be brought into the estate for general distribution. We have examined the constitution and by-laws of the State and subordinate councils, and can find no provision contained therein for a payment of benefits generally; the only payments referred to are payments of funeral benefits to those included in Classes A, and A + B, and the secretary of the subordinate lodge has testified that no payments are made by the subordinate lodge until they áre received from the Funeral Benefit Association. It is doubtless the law that benefits such as those here involved are, under the constitutions and by-laws of the societies and organizations which pay them, intended to defray the funeral expenses of the deceased member, and that, so far as such benefits are necessary to defray such expenses, they are impressed with a trust for that purpose in the hands of whomever the society pays them to, and the estate of the deceased cannot be resorted to for payment of such expenses until the said benefits are first exhausted: Miller v. Wolf, 18 Lanc. Law Rev. 105; Martin’s Estate, 2 Ches. Co. Reps. 47; Nixon’s Estate, 6 W. N. C. 496; Berlin Beneficial Society v. March, 82 Pa. 166; Walter’s Estate, 12 Dist. R. 767. The fact that the estate is solvent makes no difference: Miller v. Wolf, supra.

The exceptions filed to the payment to the widow of $100 by the Independent Order of Odd Fellows, as funeral benefits, were not pressed, and as the auditing judge allowed the widow to retain $50 paid her by the “Peg Leg” association, without impressing the same with a trust, $400 must necessarily be added to the balance for distribution and $350 thereof charged to the widow’s share, and the ruling to that effect by the auditing judge is approved.

All exceptions filed to the adjudication are, therefore, dismissed and the adjudication is confirmed absolutely.


author: Alter, Att’y-Gen.,

text:
    Blair County Judicial Election.

      Election law — Judicial election — Failure of commissioners to provide guard-rails.

    1. The Attorney-General will refuse to recommend to the Governor the allowance of an election contest for a county judgeship based on the failure of the commissioners to provide guard-rails and so arrange the voting-places that none but authorized persons could come within six feet of the ballot-box, where there is no averment of fraud, and it is sought to discard the vote of twenty-eight districts, all of which were carried by the candidate returned as elected, without reference to other districts in which the same conditions admittedly prevailed.
    2. The results of a failure of the commissioners to make proper arrangements at the polling-places cannot be corrected by throwing out only the districts carried by one candidate.
    3. The candidate returned is not obliged, where such a petition is filed, to set forth in his answer the conditions of the districts carried by his opponent. The petition must be self-sustaining.
    4. Where such a petition is presented to the Attorney-General, his duties are not merely ministerial. He must proceed by inquiry and satisfy himself of the facts before he makes any recommendation to the Governor.
    Petition of electors of Blair County for contest of election of President Judge of the Court of Common Pleas. Before the Attorney-General.
    Dec. 28, 1921.
   Alter, Att’y-Gen.,

This is a petition to the Attorney-General, asking that proceedings may be had as provided by act of assembly to determine whether Hon. Thomas J. Baldrige or Robert A. Henderson, Esq., was elected President Judge of the Court of Common Pleas of Blair County at the election held on Nov. 8, 1921.

The averments of the petition show no fraud and no error which would effect any change in the result of the election. The petition is singularly free from any allegation that any illegal vote was cast or any legal vote rejected, or that the certified result does not truly reflect the choice of the voters of the county who participated in the election.

It is not pretended by counsel in their brief submitted on the part of contestant that the case involves any fraud whatever. Referring to Cramer’s Election Case, 248 Pa. 208, the brief contains the following language: “It is true that the petition was framed upon the law of that case. If the law be not stated correctly in that decision, we have no grounds for contest.”

Aside from the fact that in Cramer’s Election Case a large number of votes had been bought and paid for, though probably not for the office in contest, and which could not have the remotest bearing upon the present case, that contest related solely to the arrangement of the space occupied by the election boards, booths and ballot-boxes and the provision of guard-rails in the polling-places.

Thus we have a request for a contest which is to turn upon technicalities alone. There is no averment that any recount of votes would change the result of the election, but the reversal of the result is sought through the discarding of the entire vote of twenty-eight precincts, through certain omissions or informalities, mainly the failure of the county commissioners to provide guard-rails and so arrange the voting-places that none but authorized persons could come within six feet of the ballot-box.

Counsel for the respondent have offered an affidavit, wherein it is averred that a careful canvass of the county shows that numerous other districts were subject to the same criticism which the petitioners make against the twenty-eight districts enumerated in the petition, and that the result of throwing out the votes of the said additional districts, as well as those of the said twenty-eight districts, would be a considerable net gain for Judge Baldrige. This affidavit was received subject to an objection by counsel for the contestant, and, on reflection, I have decided to sustain the objection. I base no finding on the affidavit.

Another affidavit offered by counsel for the respondent, and received subject to the objection of counsel for the contestant, avers that thirty-seven of the seventy-two petitioners, including ten of the fourteen who verified the petition, reside in the districts in which the petition avers that no valid election was held. The law requires that the petitioners shall have voted at the election sought to be contested, and the affidavit is offered not only to show petitioners seeking to set aside, as illegal, something in which they have participated, but also upon the theory that if, as contended, the arrangement and equipment of the voting-places did not permit the easting of any legal votes, then the petitioners residing in said districts, by their own showing, could not have voted at said election. The objection to this affidavit is also sustained. It is evident that the requirement that the petitioners shall have voted does not mean that a valid election must have been held in the districts wherein their votes were cast. Otherwise, the similar requirement relating to contests which may involve but a single district could not be complied with if it appeared that the election was wholly invalid.

There was much discussion at the argument as to the extent of the power of the Attorney-General in cases of this character, reference being made to the cases of Cheetham v. McCormick, 178 Pa. 186; Com. ex rel. Smith v. McCormick, 22 Pa. C. C. Reps. 322; s. c., 8 Dist. R. 117; White’s Contested Election, 4 Dist. R. 363, and other cases.

I do not think the duty of the Attorney-General extends quite as far, in testing the facts, in a petition for an election contest as in a petition for action to be taken by him against a corporation under the Act of 1887, involved in the case of Cheetham v. McCormick. The Act of 1887 provides that upon receiving the petition therein provided, “it shall be the duty of the said Attorney-General at once to institute proper proceedings,” and the Act of 1874, under which this petition is filed, provides that upon the petition being presented to him, he “shall immediately notify the Governor.” In each case such discretion as may be vested in the Attorney-General must be implied from the nature of his office and of the situation, not solely from the language of the statute. Cheetham v. McCormick sustains that principle, and holds that the Attorney-General is not to proceed to institute litigation upon the part of the Commonwealth merely upon receiving a petition, though it be in proper form, but that “an inquiry into the facts may satisfy him that the complainants have been misled, or that they really have no information on the subject, but are acting from malicious motives,” and “he may see very clearly that to proceed under the act would be unwise, would invite certain defeat and fasten a bill of costs unnecessarily on the Commonwealth.” Under such conditions, the court said: “It is the duty of the Attorney-General, under his official oath, to say to the complainants, ‘you have no case;’ and it is his right to decline to ask for the complainants relief he is satisfied they have no right to.”

Probably this reasoning of the court is not fully applicable to an election contest, by reason of the difference in the relation of the Attorney-General to the proposed litigation and the different character of the procedure sought to be instituted. It is equally clear, however, in both cases, that it is not a mere ministerial duty that is to be performed, and in Com. ex rel. Smith v. McCormick, Attorney-General, 22 Pa. C. C. Reps. 322, 8 Dist. R. 117, which was a petition for an election contest, Judge Simonton, after discussing the case of Cheetham v. McCormick, said: “We are unable to see what purpose would be served by requiring the petition to be presented to the Attorney-General if his sole duty were to transmit it to the Governor, and we think the principle of the case above cited ought to apply here.”

It seems very plain that the petition should be required to be fully self-sustaining and that the proceedings should bear the clear impress of good faith in every particular. Otherwise, there would be temptation to start a contest where the real reason was a close result and the hope that something might turn up in the course of the investigation.

The law is not concerned here as to whether there was an “undue” or “illegal” election in certain election districts, but whether there was such an election in Blair County. The failure of the county commissioners to arrange and equip polling-places in the manner provided by law being the sole ground on which it is hoped to sustain the contest, and the facts being easy to ascertain, it seems very clear that the extent to which that condition existed should have been set forth in the petition, with the vote in all the districts thus affected, so that we might know what effect the elimination of the vote in all such districts would have upon the result of the election in the county. The petitioner should thus have provided all the information necessary for answering the serious and vital question whether, in the words of Judge Simonton, in Com. v. McCormick, above referred to, “it would be a vain thing for the Attorney-General to transmit his petition to the Governor, and for him to direct a court to be constituted to try the intended contest.”

The petition enumerates twenty-eight districts wherein the commissioners failed to arrange and equip the polling-places according to law, all of which ivere carried by Judge Baldrige, and states what would be the result of discarding all the votes cast in all these districts. But to how many other districts did this failure upon the part of the commissioners extend, and what would be the result of eliminating all of them? That there were other such districts is quite free from doubt.

It would be an incredible coincidence that in this close election, free from fraudulent voting, Judge Baldrige should carry all the districts which were without guard-rails when they were so numerous. The petition does not purport to give all the districts where the arrangement or equipment was defective. If the districts named were the only ones affected, or the only ones known to the petitioners, it would have been very easy to so aver, but there is no such averment. Moreover, in response to my inquiry at the oral argument, counsel for the petitioners stated that the conditions complained of extended to districts which were carried by Mr. Henderson.

The results of a failure of the commissioners to make proper arrangements at the polling-places cannot be corrected by throwing out only the districts carried by one candidate. If the law will sustain the disfranchisement of all the voters in such a district, then this drastic action must be taken in all such districts, and we cannot tell whether it is worth while to summon a tribunal to correct an “undue” election unless the petition states what would be the result of such complete correction. Upon the petitioners rests, very clearly, the burden of justifying the summoning of the tribunal. To give only some of such districts when there are others, to give only the districts carried by one candidate and suppress the fact of other such districts carried by the other candidate, does not seem to have the clear impress of good faith. It surely cannot be contended that the petition is self-sustaining, showing that a contest could change the result of the election. I think where this is not shown as clearly and positively as the nature of the case admits, the Attorney-General should refuse to set in motion the expensive machinery provided for the correction of results. In this respect I think the petition in this case is manifestly defective.

It is argued by counsel for the petitioners that they are only required to show the districts carried by Judge Baldrige, and that the districts carried by Mr. Henderson should appear in the answer, to be considered by the tribunal summoned by the Governor. This argument seems to overlook the serious importance of determining whether there is any clear practical reason for summoning the tribunal. This is not a law-suit between individuals, but a public matter, concerning every voter and taxpayer of Blair County as well as the time and convenience of judges from other counties, who would be taken from their regular duties to sit specially in this case. It involves also the continuation of public controversy and strife. It is peculiarly the kind of litigation which should only be entered upon where there appears to be good and sufficient reason. As said in Skerrett’s Case, 2 Parsons, 509: “Should too ready an ear be lent to such complaints, it does not require the spirit of prophecy to divine that elections will rarely terminate with the ordinary functionaries under whose superintendence they are placed, but- that courts of justice will be perpetually invoked to assume the office most foreign to their organization — that of umpires between the contestants for public favor at the ballot-box.”

Cramer’s Election Case, already mentioned, has been discussed at length by counsel on both sides. Counsel for the petitioners rely upon it entirely, pointing to its description of conditions similar to those alleged in the petition. Counsel for Judge Baldrige went into the decision very fully, and made a very impressive argument. The decision seems to stand somewhat apart. It is strongly urged by counsel that it is not in harmony with the earlier case of Knight v. Coudersport Borough, 246 Pa. 284, or the later cases of Com. ex rel. Gast v. Kelly, 255 Pa. 475, and West Mahanoy Township’s Contested Election, 258 Pa. 176, and that its application in a case free from fraud would work gross injustice. In any event, it seems clear that if, through appropriate proceedings, there should eventually be a trial under the present petition, it would be most helpful to have it preceded by a determination of the effect of that case on the conditions complained of here.

The petition is refused.

From Guy H. Davies, Harrisburg, Pa.


author: Prather, P. J.,

text:
    Ryan v. Gage.

      Evidence — Witness—Competency of witness — Party dead — Husband and wife — Exchange of lands — Act of May 28, 1887.

    1. In an action of ejectment, where the common source of title is plaintiff’s deceased grantor, and the defendant claims that the land in controversy, devised to her by her husband, had been exchanged by such grantor under a parol agreement for a strip of land belonging to her husband, and the exchange had been evidenced by the moving back of a fence, the defendant is an incompetent witness under clause (e), section 5 of the Act of May 23, 1887, P. L. 158, to testify as to the fact of such exchange and the removal of the fence.
    2. When a husband is incompetent as a surviving party to a contract, his wife is also incompetent, and she is not made competent by her husband’s death.
    Rule for new trial. C. P. Crawford Co., Feb. T., 1917, No. 126.

      Albert L. Thomas, for plaintiff; Frank J. Thomas, for defendant.
    July 18, 1921.
   Prather, P. J.,

In the lifetime of James G. Rhodes and James Gage, they owned adjacent farms. Plaintiff, having purchased the farm owned by Rhodes, brought this action of ejectment to recover a certain'triangular piece of land, containing perhaps less than fifteen square rods, formerly a part of the Rhodes farm, claimed by and in possession of James Gage. Prior to the bringing of this action, James G. Rhodes died, and subsequent thereto James Gage died, testate, devising all his real estate to his widow, Eliza Gage, who by substitution is now defendant.

The common source of title is James G. Rhodes, and plaintiff is claiming as grantee of the Rhodes title.

The defence is of a dual nature:

1. That the land in question is claimed by adverse possession under the statute of limitations.

2. That by parol purchase and occupancy, the consideration being a narrow strip of land along the line other than that in dispute, given by Gage to Rhodes as a consideration for the triangular piece in controversy, the actual delivery of which consideration, defendant alleged, was evidenced by moving back upon the land of Gage the line fence about two feet.

The defendant, evidently not satisfied with her defence of adverse possession, offered proofs in support of her second defence. In this line of defence Mrs. Gage was permitted to testify, over the objection of plaintiff’s counsel as to her competency, that she visited the scene of the line fence when it was in process of construction, after said agreement was made, and observed that it was changed from its original position and set back some two feet upon her husband’s land. The verdict was for defendant.

The admission of this testimony is now urged as error in support of the motion for a new trial.

Clause (e) of section 5 of the Act of May 23, 1887, P. L. 158, provides: “Nor, where any party to a thing or contract in action is dead, or has been adjudged a lunatic and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record, who represents his interest in the subject in controversy, shall any surviving or remaining party to such thing or contract, or any other person whose interest shall be adverse to the said right of such deceased or lunatic party, be a competent witness to any matter occurring before the death of said party,” etc.

This action, as brought, was against James Gage. Under all the authorities, it is clear that, had this case proceeded to trial during his life, neither he nor his wife would have been a competent witness under the law applicable to a survivor to a contract in dispute. It is equally clear that when a husband is incompetent as a surviving party to a contract, his wife is also incompetent.

As to these propositions, no discussion is necessary. See Hess v. Gourley, 89 Pa. 195; Brady v. Reed et al., 87 Pa. 111; Reiter v. McJunkin, 8 Pa. Superior Ct. 164; s. c., 194 Pa. 301; Bitner v. Boone, 128 Pa. 567; Reap v. Dougher, 261 Pa. 27; Burke v. Burke, 240 Pa. 379.

Can it be urged that James Gage was a competent witness to prove the fact that he moved the line fence back two feet, thereby giving this much land to Rhodes, merely because this fact did not constitute a narration of his bargain with Rhodes? The inquiry furnishes the answer. This act was a delivery of the consideration — a payment of what stood for the purchase money; the sine qua non, there was no bargain and no consideration.

Concededly, his incompetency to testify attached to Eliza Gage, his wife. Does the death of James Gage remove her incompetency, either as a wife or “other person whose interest shall be adverse to the . . . right of such (other) deceased . . . party?” If so, then defendant’s case, so far as proofs are concerned, has been made stronger and freer from difficulty by the death of defendant.

Let us assume all the facts relating to this proposition as they are, except the assumption, contrary to fact, that James Gage is alive at the time of the trial, and that he is unable to prove by any person other than himself and his wife the delivery of the strip of land that stands for the purchase money for the triangle now in dispute. Then plaintiff’s paper title, including this triangle, would prevail, as neither Gage nor his wife could be heard to speak against the Rhodes title.

Excluding the contrary to fact assumption that James Gage was living at the time of the trial, and reciting the facts, we have:

The allegation that James Gage in his lifetime purchased from James Rhodes by parol the triangular piece of land in controversy, giving as a consideration therefor a certain other piece of land. And we have the further facts that:

Plaintiff succeeded by purchase to the Rhodes title; Eliza Gage, defendant, succeeded to the title of James Gage as devisee. Both James Rhodes and James Gage were deceased prior to the trial of this action in ejectment.

The rights of James Rhodes and James Gage have passed to plaintiff and defendant respectively. Their adverse interests have their source in, and flow from, this alleged parol purchase.

To hold Eliza Gage a competent witness to testify to anything that would vitalize this alleged contract, to wit, the delivery of the land as the consideration stipulated, is in effect to hold that James Gage, as a surviving party to this contract, would have been a competent witness to prove its terms. To sustain the competency of his widow and devisee of the land in controversy is to say that James Gage, living, could not interpose a syllable of testimony in support of his title, either through himself or his wife, Eliza Gage, but, being dead, he can now speak through his wife and devisee.

It cannot be that when a party in life is incompetent under the law to testify, and unable to produce proof of a fact in issue, his death will restore probative life to his case and capacity, to otherwise incompetent witnesses, to testify in support of the controverted fact.

We are convinced that the testimony of Eliza Gage in support of this contract was erroneously admitted. It follows that the rule for a new trial should be made absolute.

We regret the necessity for granting a new trial to determine the title to a piece of land so inconsiderably small in area and possessing little more than imaginary value.

Now, July 18, 1921, rule for new trial absolute.

Prom Otto Kohler, Meadville, Pa.


author: Reid, J.,

text:
    Franklin Sugar Refining Co. v. Simon John et al., copartners, trading as Simon John & Brothers.

      Practice, C. P. — Affidavit of defence — Sufficiency—Contracts.
    1. An affidavit of defence consisting of mere negations, evasive denials, aver-ments of ignorance and conclusions of law, without stating the inquiries made, is insufficient to prevent judgment.
    2. Under the facts admitted in the affidavit the broker was the authorized agent of both parties, and the transactions effected by the broker constituted binding contracts.

      Contracts. — Bequest for cancellation — Damages.
    3. A letter reading “We would thank you to cancel all the orders that you have on file for us for sugar,” is not a repudiation of the contracts, and, therefore, has no effect upon the measure of damages.

      Contracts — Broker’s memoranda — Attempt to vary.

    4. Where the terms of a contract are evidenced by a broker’s written memorandum, these terms cannot be varied by the interpretation placed upon them by one of the parties.
    Rule for judgment for want of sufficient affidavit of defence. C. P. Allegheny Co., Oct. T., 1921, No. 1585.
    Before Carpenter and Reid, JJ.

      Henry S. Drinker, Jr., and David A. Beed (with them Thomas Beath, Jr.), for plaintiff.

      Langfitt & Langfitt, for defendants.
    Feb. 20, 1922.
   Reid, J.,

This case is before us upon a rule for judgment for want of sufficient affidavit of defence. The rule was heard upon the original affidavit; but, after argument, defendants’ counsel asked leave to file a supplemental affidavit, and this we have permitted. As hereafter stated, we have considered these affidavits as one.

The action is assumpsit brought by plaintiff to recover damages for breach of contracts to purchase certain sugar. There were three contracts, similar in character, each calling for one carload of 115 barrels of sugar, or “equivalent,” at 22i cents per pound; one for delivery in July, 1920, and two for September, 1920, delivery, “or as soon thereafter as possible.”

The statement of claim avers that the contracts were made through a broker, J. H. Huston Company, Inc. The broker made out and signed a memorandum of the terms of each contract and forwarded a copy to each of the parties (vide Exhibits Nos. 1, 2 and 3 of statement for copies), and these are declared upon by plaintiff as memoranda of contracts consummated between the parties.

The plaintiff also avers that, notwithstanding the agreement entered into by defendants, they did not accept more than sixty-seven barrels; and that on Aug. 12, 1921, when plaintiff made a final demand on them to comply with their contracts, they repudiated them and refused to take any other sugar whatsoever; and that thereupon plaintiff informed defendants that it elected to treat such repudiation as a breach as of that date.

Averment is then made that at the last-mentioned date the fair market value of refined sugar, such as defendants contracted to purchase from the plaintiff, was 6.15 cents per pound f. o. b. refinery.

The amount of plaintiff’s claim for damages is based upon the failure of defendants to accept the balance of 278 barrels, or equivalent, of sugar contracted for, which, according to the custom of the sugar trade, is to be computed at 350 pounds per barrel. This left the amount of sugar due to defendants at 97,300 pounds. Upon this residue it is claimed that the difference between 22! cents, the contract price, and 6.15 cents, the market price on Aug. 12, 1921, is due to plaintiff as damages, the amount of which is $15,908.55, on which interest is claimed from the date of the breach.

A careful analysis of the original and supplemental affidavits of defence shows that they are open to the objection of being vague, indefinite, evasive, and as presenting little more than an attempt to plead conclusions of law. Moreover, as to many of the averments, they are not in accordance with the requirements of the Practice Act of 1915 governing such affidavits or with the decisions interpreting it.

The original affidavit is too extended to allow a separate consideration of each paragraph. Examining it in connection with the amended affidavit, we find that practically the only defence is that the exhibits referred to, even though copies were received and retained, and the correspondence between the parties referring to them, do not constitute contracts, but were merely proposals, which defendants had a right to accept or reject. ,

This defence is first found in paragraph third of the original affidavit, and, as amended, is as follows:

“Defendants deny paragraph third of the plaintiff’s statement of claim as stated. Three proposals for sale were made by the plaintiff to defendants between June 1st and July 15, 1920, a proportion of which proposals were accepted, the goods delivered and were paid for by defendants, the remaining proposals were held in abeyance by defendants and canceled later. Defendants deny they dealt directly with the plaintiff, but with J. H. Huston Company, and made no purchase or agreement to purchase directly with or from the plaintiff at any price, but did solicit Huston Company to, if possible, secure from plaintiffs a quantity of sugar, the amount of which was indefinite. In pursuance thereof, plaintiff forwarded certain papers, copies of which are attached to the plaintiff’s statement, which papers defendants interpreted to mean that defendants could procure from the plaintiff practically at once any quantity of sugar not exceeding the limits in said papers.”

The same suggestions of a mere offer or proposal is again set up in paragraphs 5 of the original affidavit of defence as amended, 6, 10 as amended, 16, 17, 21 as amended, 22, 23, 26 as amended, 32, 37, 39, 41 as amended, 42 as amended, and the final paragraph 44.

The same defect runs through all of these. The defendants ignore the specific terms of the memoranda which they accepted and recognized, and attempt to put their own forced interpretation upon the papers, and upon such interpretation deny liability.

As already stated, the receipt of the copies, or memoranda, is nowhere denied; nor is it denied that Huston Company was the broker authorized to negotiate.

Memoranda of identical form, accepted by similar correspondence, in a number of Philadelphia cases have been held to be the basis of a valid and enforceable contract from which the defendants there could not escape by setting up averments of the character presented in these affidavits. The cases to which we refer are as follows: Franklin Sugar Refining Co. v. Hanscom Bros., 30 Dist. R. 501; Franklin Sugar Refining Co. v. Donabedian, 30 Dist. R. 502; Franklin Sugar Refining Co. v. Huntington Co., 30 Dist. R. 1009; Franklin Sugar Refining Co. v. Kruse Co., 30 Dist. R. 1013; Franklin Sugar Refining Co. v. Howell, 30 Dist. R. 1079.

A number of the foregoing paragraphs begin by a mere negation of the corresponding paragraph in plaintiff’s statement of claim thus sought to be answered. That such a method is insufficient as a specific denial under the Practice Act is beyond question. In none of them is there a sufficient support of the attempted denials by a counter-statement of properly pleaded facts.

An instance of this is found in paragraph 3 of the original affidavit. By it defendants simply deny paragraph 3 of plaintiff’s statement of claim as stated. It then avers the existence of certain “proposals,” without stating the purport or nature of these proposals, or whether they were other than or different from the “memoranda” exhibited in plaintiff’s statement. Defendants then state that a portion of such proposals were accepted and paid for, without saying what portion was thus dealt with. The paragraph concludes by averring, “The remaining proposals were held in abeyance by defendants and canceled later,” without saying how long thus held or when or how they were canceled later. This is clearly insufficient.

The amendment to the paragraph in question merely denies that defendants dealt directly with the plaintiff, and that the papers, copies of which were attached to the plaintiff’s statement of claim, were interpreted by defendants to mean that they could purchase practically at once any quantity of sugar they desired.

Such averments amount to nothing, and they cannot, by alleging such interpretation, change the rights of the parties.

Another instance of a defect of a similar character in this affidavit is found in the fourth paragraph. This simply denies, as does the third, without averring specific facts to support it, and is then followed by the clause, “the papers referred to being there termed contracts instead of proposals.” This was not helped by the amendment, which is as follows:

“The alleged contracts sent by the plaintiffs to defendants as Exhibits 1, 2 and 3 were not in pursuance of or in accordance with any verbal or written instructions of defendants to the brokers and were not agreed to in terms by defendants, but defendants, relying upon their request to the brokers to secure them sugar in large quantities in June, July and' August with which to supply their customers, accepted such sugar as coming from the plaintiffs, believing the same to be in accordance with defendants’ understanding with the brokers.”

The broker in question was the agent of the defendants as well as of the plaintiff. The papers submitted were in writing, and defendants are presumed to have read them and to have understood their contents. They did not dissent from the terms, but allowed them to pass unchallenged, and they cannot now be allowed to set up some undisclosed “verbal or written” instructions to the broker and their own supineness in “believing them to be in accordance with their understanding” in order to overthrow a valid agreement.

In no instance, either in the original or in the supplemental affidavit of defence in which there is a failure to specifically deny, or where it is averred that defendants are not informed, and therefore require proof, is the necessary averment made which will excuse the absence of such specific denial.

That a mere denial of this character will not avail as a defence will appear by reference to the following cases: Buehler v. United States Fashion Plate Co., 269 Pa. 428; Fulton Farmers’ Ass’n v. Bomberger, 262 Pa. 43; Parry v. Bank, 270 Pa. 556.

The averments in paragraph 3 of amended affidavit, attempting to deny that, at the time the alleged contracts were forwarded, plaintiff ever had, or had reason to believe it would have, sugar to meet defendants’ contracts, and merely “allotted,” without selling or contracting to sell, any quantity of sugar to the defendants, are not good, in view of the provisions of the agreement and the undenied averments of the failure of defendants to give directions as to shipments of the sugar and of their request that deliveries be suspended. The concluding sentence is argumentative and not a matter of defence.

The same can be said of the amendment to paragraph 9, which denies that the broker “received the sugar.” The statement does not aver that the broker did receive the sugar. It merely avers that the broker “received allotments, for the division of which he advised plaintiff and received from the plaintiff authority to make the contract in its behalf.” This paragraph is also argumentative; and the final averment that the contracts were sent by the broker, and not by the plaintiff, does not, even if true, affect the rights of the parties.

Paragraph 6 of the supplemental affidavit, which seeks to amend original paragraph 21, again presents the attempt to plead a legal conclusion, is argumentative, endeavors to set up a construction or understanding between the broker and the defendants, and is in contradiction of the terms of the written memoranda, and the denial embodied in it is no more than a mere denial, and, therefore, insufficient.

Paragraph 7 of the supplemental affidavit, amending section 26 of the original, is evasive and insufficient. It simply makes a general denial, and then interprets such denial by stating that “no such amount or any part thereof was ever sent or shipped to defendants prior to defendants’ cancellation. . . .”

In view of the fact that the 26th paragraph of the plaintiff’s statement does not aver any such delivery, the defendants’ denial amounts to nothing. Moreover, the time and manner of the alleged cancellation is not set forth.

The matter averred in paragraph 8 of the supplemental affidavit, the purpose of which is to amend paragraph 33 of the original affidavit, and which undertakes to reply to the averments of paragraphs 33 and 37 of the statement, are clearly not well pleaded.

The averment of plaintiff’s paragraph 33 is: “Due to causes beyond plaintiff’s control, it was not possible to deliver (except as averred in paragraph 37 hereof) to the defendant the sugar called for under contract evidenced by the original of Exhibit No. 1 until after Aug. 18, 1920.” The original affidavit simply replied: “Defendants have no knowledge of the averments, . . . and therefore formally deny the same.” These are clearly insufficient.

The amended paragraph does not attempt to specifically deny the truth of this averment. It inferentially does so. It begins by saying: “But plaintiff has not shown that it was beyond its control to ship sugar to defendants, otherwise than as averred in paragraph 37.”

Plaintiff was not obliged to thus show by proof. It was sufficient in the first place to aver the facts, and it was then incumbent upon defendants to specifically deny them if they were not true. All that this amendment undertakes to do is to aver that, upon inquiry and investigation and upon information received, the plaintiff had made an “alleged contract” with 400 customers, which it was not able, nor did it expect, to fill; that these alleged contracts were made without plaintiff’s obligating itself and for the purpose of holding such contracts unfulfilled until abnormal prices had ceased, and then, upon refusal of the “proposed buyer” to take more sugar, to hold them responsible, “as is sought to be done in this proceeding,” the plaintiffs never having had in hand at any time sugar sufficient to supply in full what it ought to. This is concluded by the averment that the defendants believe and expect to be able to prove the foregoing.

The charges of gross fraud thus sought to be made against plaintiff cannot avail defendants, for a number of reasons:

1. The averment does not specifically deny the averment of the statement.

2. If defendants made the inquiries and obtained the information alleged, they must state the nature and extent of their inquiries and their sources of information, so that we may know the basis of the knowledge of the informants

3. The contracts referred to as made with these 400 unnamed customers must be identified and their contents more specifically presented than by a mere reference to their supposed terms or purpose.

4. To permit the general and argumentative averments of this paragraph as to the conduct and dealings of defendants to be offered in attack upon a specific contract would be to admit irrelevant and immaterial matters which are clearly res inter alios acta.

Finally, the attempt to interject defendants’ interpretations or conclusions as to the motives of plaintiff in making contracts either with affiants or others cannot be permitted.

Paragraph 9 of the amended affidavit, the purpose of which is to supplement original paragraph 36, is not sufficient. The original paragraph clearly failed to meet the requirements of good pleading. It merely pleads, “No such contract — therefore no such specifications were required.” It did not deny that the defendants had been requested to furnish specifications of the grades and packages in which delivery was to be made.

In the amendment the denial is merely that plaintiff “frequently requested specifications.” It fails to aver how many or how few times such specifications were requested.

The amended paragraph in question presents a long and argumentative discussion as to shipments — the realization by defendants that no further reliance could be placed upon plaintiff’s promise^- that sugar had not been furnished in a reasonable time, and, as a result, avers that defendants “exercised their right to cancel the offers, orders or alleged contracts, and did so in writing on Sept. 11, 1920, reaffirming said cancellation on Nov. 4, 1920, and Jan. 8, 1921.”

The attempted cancellation of Sept. 11, 1920, is quoted in the 44th paragraph of the original affidavit of defence. It is as follows: “We would thank you to cancel all the orders that you have on file for us for sugar, as we have a large quantity of sugar on hand and we are selling a very little of it.”

This was not a cancellation, but merely a request for such, not complied with. The averment of the “reaffirmance” of such cancellation at the later dates, in the absence of an averment stating the terms of such reaffirmance, whether verbally or in writing, amounts to no more than pleading a conclusion.

That a request to cancel is not a cancellation or repudiation of a contract is ruled in Woldert Grocery Co. v. Wilkinson, 39 Pa. Superior Ct. 100, and Franklin Sugar Refining Co. v. Huntington Co., 30 Dist. R. 1009.

Paragraph 87 of the original affidavit of defence admits that sixty-seven barrels of sugar were received and paid for at the price of 22.50 cents per pound. The attempted denial is simply a repetition of the averment that the. arrangements between the parties did not constitute a contract. This is sought to be amended by paragraph 10 of supplemental affidavit; but the averment therein of “an arrangement having been made in the spring of 1921,” by which plaintiff agreed to ship, and did ship, sugar, irrespective of previous disputed claims, without prejudice, etc., is insufficient, in that it merely states conclusions or results reached, not the particulars as to such alleged arrangement or whether verbal or written.

Paragraph 38 of the original affidavit was insufficient, presenting bald denials, plus the evasive averment that “during all the period during which defendants were willing to receive sugar from plaintiff, plaintiff failed and was unable to furnish same.” This is evasive because it does not meet the positive averment of the statement and seeks to introduce “the period during which defendants were willing to accept” as important or controlling as against the terms of the written memoranda.

Paragraph 11 of the amended affidavit adds'to the original 38th paragraph an averment of plaintiff’s unreadiness or inability to perform. As, however, this is based entirely upon the defendants’ interpretation or “understanding” of the contracts and ignores the specific written terms evidenced by the memo-randa, it cannot be considered as effective to prevent judgment. It also ignores the specific averment of the statement of a failure on defendants’ part to furnish assortment and shipping directions.

It is not sufficient to substitute for the requisite direct and positive denial of such averment the argumentative conclusion of plaintiff’s unreadiness to deliver at a time fixed according to defendants’ interpretation, then, finally, becoming tired of waiting for deliveries and the subsequent cancellation.

Original paragraph 39 needs no discussion. It presents a mere denial and an admission that demand for performance was in fact made upon them on Aug. 12, 1921. It concludes with the conclusion that, under the contracts (as interpreted by them), there were not at the date mentioned any uncompleted contracts or business dealings between the parties.

Original paragraph 40 does not deny, or attempt to deny, the averment that plaintiff elected to treat Aug. 12, 1921, as the date of the repudiation of their eon tracts by the defendants.

Original paragraph 41 presents a mere denial, and as it stood did not need discussion. The added averment “that defendants had no contract to purchase from plaintiff as stated” was but a repetition of the previous attempts to plead their conclusion and interpretation of the agreements here involved. The averment of paragraph 41 of the statement was that on Aug. 12, 1921, the fair market price of refined sugar, such as defendants contracted to purchase, was 6.15 cents per pound f. o. b. refinery.

Not having been denied as required by the Practice Act, this averment was admitted.

The 12th paragraph of supplemental affidavit amended paragraph 41, but did not attempt to deny the price averred as above stated, but enters upon an extended and non-responsive presentation of the market on Sept. 11, 1920 (the date of the alleged cancellation), at which it avers the price of sugar had but slightly receded, and, consequently, the highest rate per pound of plaintiff’s damages could not exceed 4£ cents.

Then follows an averment that, after the date of such attempted cancellation, plaintiff knew that defendants would not complete their contracts, and, therefore, held said sugar at its own risk, “and if plaintiff failed to dispose of said sugar immediately thereafter, and the price of sugar subsequently declined (whether said cancellation was legal or otherwise), the plaintiff cannot hold defendants for any loss or damage due to such further decline in prices.”

The foregoing is a mere attempt to again plead a conclusion of law based upon defendants’ interpretation, both of the law and the contracts involved, and in nowise attacks or replies to the simple averment found in plaintiff’s statement of claim.

Original paragraph 42 presents another instance of the pleading of the defendants’ conclusion or interpretation that no contracts were entered into. It is a mere denial (and no more) as to the material facts, except as to the non-existence of a custom which fixes 350 pounds as the average weight of a barrel of sugar. It is true that it formally denies the weight of 97,300 pounds, and that sugar was 6.15 cents per pound on Aug. 12, 1921, but it fails to aver what the non-delivered sugar would weigh under the defendants’ method of computation, or what in fact the price of sugar really was at the date mentioned.

With regard to the averment of the non-existence of a custom that the average weight of a barrel of sugar is 350 pounds, and the denial that the average weight is 350 pounds, it was the duty of the defendants, who are sugar dealers and knew the facts, to set forth their standard for such weights, whether greater or less than 350 pounds. Their simple denial does not aid the court or clarify the pleading. The fact is within their knowledge and they have chosen not to state it.

The question of the allowance of 350 pounds as the “equivalent” of a barrel of sugar, and the failure of defendants to set up their own standard of weights, damages, etc., is discussed in Judge Finletter’s opinion in Franklin Sugar Refining Co. v. Kruse Co., 30 Dist. R. 1013.

The addition to paragraph 42 of the matters averred in the 13th paragraph of the amended affidavit does not aid or strengthen the original. The facts averred are in nowise responsive to the averments in the 42nd paragraph of plaintiff’s statement.

The final paragraph of the original affidavit of defence (44th) has not been amended. It is in effect but a resumé of the numerous preceding averments as to non-existence of any enforceable contracts and the defendants’ theory in relation to the dealings between the parties. It avers the attempted cancellation of Sept. 11, 1920, and the previously discussed claim that plaintiff cannot recover for depreciation in the price of sugar after that date. There is nothing in it to prevent judgment.

Judgment must be entered for plaintiff and against the defendants for the full amount of plaintiff’s claim, $15,908.55, with interest from Aug. 12, 1921.

Order.

And now, Feb. 20, 1922, it is ordered that the rule for judgment for want of a sufficient affidavit of defence be made absolute, and that judgment be entered for the plaintiff and against the defendants for the sum of $15,908.55, with interest from Aug. 12, 1921.

From Edwin L. Mattern, Pittsburgh, Pa.


author: Fox, J.,

text:
    Commonwealth ex rel. Shoop v. Fortney et al.

      Practice, J. P. — Summary conviction — Right of the Commonwealth to appeal.

    1. The Commonwealth has the right to appeal from a decision of a justice of the peace acquitting the defendants on proceedings under a statute providing for a summary conviction.

      Trespass — Posted property — Separate offences — Joint action — Act of April 11, 1905.

      2. Upon an information against several defendants as joint trespassers on lands posted as private property under the Act of April 14, 1905, P. L. 169, where the evidence shows distinct offences as to time and place, with no concert of action, the justice of the peace properly dismissed the case, and an appeal from, such action will be quashed.
    Motion to quash appeal from justice of the peace. Q. S. Dauphin Co., June Sess., 1921, No. 232.

      George F. Lumb, for plaintiff.

      Harvey E. Knupp and Scott S. Leiby, for defendants.
    Dec. 1, 1921.
   Fox, J.,

This is a summary proceeding and was commenoed before a justice of the peace in the Borough of Dauphin on July 28,1921, upon the affidavit of John L. Shoop, charging the defendants with violation of provisions of the Act of April 14, 1905, P. L. 169, entitled “An act making it unlawful to trespass upon land posted as private property, and providing the penalty.”

The alleged offence being that the prosecutor was the owner of land through which flows a stream of water, upon which land the defendants entered and went into the stream, bathing and swimming therein.

A warrant was issued by the justice of the peace, under which the defendants were arrested, and a hearing was had on July 29, 1921, whereupon the justice dismissed the case.

On Aug. 2, 1921, the prosecutor, John L. Shoop, presented his petition to the Court of Quarter Sessions for the allowance of an appeal, whereupon on that day the court allowed an appeal. It was entered to No. 232, June Sessions, 1921, and on Sept. 28, 1921, the case came to trial. Before testimony was taken, counsel for the defendant moved the court to quash the appeal, and assigned the following reasons:

“1. For the reason that the proceeding before the justice of the peace in said case was under a statute providing for a summary conviction and the justice of the peace acquitted the defendants. Under the Act of Assembly of April 17, 1876, P. L. 29, by virtue of which the prosecutor in this case took said appeal, the Commonwealth has no right of appeal.
“2 In the above stated case the record or transcript of the justice of the peace shows the action was one of trespass and against the defendants jointly. Under the Act of Assembly of April 14, 1905, P. L. 169, if convicted, they must be found guilty of a joint offence, in which they acted in concert in committing, to give the justice of the peace jurisdiction.
“3. The defendants except to the court hearing the case de novo, since an appeal from a summary conviction by a justice of the peace is in effect a certiorari, and brings up for review nothing but what appears upon record, without a bill of exceptions.”

Whereupon (the witnesses for the Commonwealth being present) the court directed the testimony to be taken subject to the subsequent disposition of the motion, which was again renewed by counsel for the defendants at the close of the Commonwealth’s case. The defendants offered no testimony, and the first question now before us is, should the appeal be quashed?

Taking up the first of the reasons assigned by the defendants for the quashing of the appeal, viz., the question of the right of the Commonwealth to appeal, we are of the opinion that it has the right to appeal. We have not been referred to any appellate court decision nor have we in our search found any bearing upon the question, and the decisions of the lower courts have sustained both the affirmative and negative sides of this question. One of the fullest and most persuasive discussions upon the subject is found in the case of Com. v. Mitchell, 23 Dist. R. 496, in which it was' decided that the Commonwealth has the right to appeal. The same position was taken in Com. v. Messinger, 13 Dist. R. 621, and Com. v. Jolly, 15 Dist. R. 305. The first reason is, therefore, dismissed.

The second reason is a more serious one. The information was made against all of the defendants as joint trespassers.

The evidence submitted by the Commonwealth shows that the prosecutor was the owner of the land; that he had posted notices, giving notice that the land and creek were private property, and that trespassing thereon was prohibited under the Act of April 14, 1905, P. L. 169. There was no evidence submitted that the defendants came together upon the land and went into the stream and bathed together, but the evidence showed that they entered separately, at different times and at different places, and did not swim and bathe together.

We are of the opinion that this is a sound reason for quashing the appeal. There was no concert of action on the part of the defendants. The defendants acted separately, at different times and at different places. The offences were distinct, and the proceedings should have been separately commenced against the defendants instead of jointly. The criminal law does not permit such a joinder under the facts. The current of authorities is against it (Fulmer v. Com., 97 Pa. 503; Sadler on Criminal Procedure, 272; Com. v. Grau et al., 16 Dist. R. 806) ; this reason is, therefore, sustained.

Having sustained the second reason for quashing the appeal, there is no necessity for passing upon the third.

Therefore, the appeal is quashed, with costs upon the prosecutor and petitioner for the appeal, John L. Shoop.

From William Jenkins Wilcox, Harrisburg, Fa.


author: Hull, Dep. Att’y-Gen.,

text:
    Boards of Health Milk Inspection.

      Health law — Milk inspection — First class townships — Contracts—Acts of June 12,1913, and April H, 1915.

    1. The hoards of health of several contiguous first class townships may, by separate contracts, employ the same milk inspector.
    2. The Act of June 12, 1913, P. L. 471, amended by the Act of April 14, 1915, P. L. 114, does not prohibit such contracts.
    Attorney-General’s Department. Opinion to Hon. Edward Martin, Commissioner of Health.
    Dec. 10, 1921. —
   Hull, Dep. Att’y-Gen.,

This department is in receipt of your recent letter, inquiring whether it would be lawful for the boards of health of several contiguous first class townships to combine in the employment of a milk inspector and to pay his salary and expenses by prorating the same among the several municipalities. This inquiry involves (first) the question whether such boards of health have authority to employ a milk inspector; and (second) whether they may lawfully combine in the employment of the same inspector?

The Act of June 12, 1913, P. L. 471, as amended by the Act of April 14, 1915, P. L. 114, provides for the establishment and maintenance of boards of health in boroughs and first class townships, and prescribes their powers and duties. Section 6 thereof imposes upon such boards the duty to enforce the laws of the Commonwealth and the regulations of the State Department of Health, and authorizes them to make and enforce certain additional rules and regulations to prevent the introduction and spread of infectious or contagious diseases. The enumeration of these powers is followed by these provisions:

“and to make all such other rules and regulations as they shall deem necessary for the preservation of the public health. . . .
“The board shall also have the power to make, enforce and cause to be published all necessary rules and regulations for carrying into effect the powers and functions with which they are invested by law.”

Without attempting to define the limits of the powers given by the clauses above quoted, it is clear that they include the power to make and enforce such rules and regulations as may be reasonably necessary to prevent the introduction and spread of contagious diseases through the medium of impure milk. The power to make, and the duty to enforce, such rules and regulations, which the legislature has thus vested in the board of health, necessarily implies the power to employ and to pay such inspectors and other assistants as may be required for that purpose. The reference in section 7 of the Act of 1913 to the “assistants, subordinates and workmen” of the board of health indicates that the legislature contemplated the necessity of employing such persons to assist the board.

In addition to the enforcement of rules and regulations made by the board of health, these inspectors may also assist in the enforcing of such State laws and regulations of the board of health respecting the sale and distribution of milk as have been or may hereafter be enacted or promulgated. There are several acts (March 24, 1909, P. L. 63; June 8, 1911, P. L. 712; May 23, 1919, P. L. 275) which, although they are not primarily health laws, were enacted by the legislature partly in the interest of the public health. Each of these acts imposes upon one of the State departments the duty of enforcing the same. That, however, would not prevent the inspectors of the local board of health from assisting in the enforcement of these laws where it became necessary.

There is no provision in the law for joint action by several municipalities in the employment of a milk inspector, and one of them could not lawfully pay for service rendered or expenses incurred in another. However, the power to employ an inspector carries with it the power to contract for a part as well as for all of his time. It would, therefore, be lawful and proper for each of several boards of health to enter into separate contracts of employment with the same inspector for services within its district. In this manner the same desirable results would be obtained which might result from joint action.

I, therefore, advise you that the board of health of a first class township may employ a milk inspector, and that the boards of health of several townships may, by separate contracts, employ the same inspector.

From Guy H. Davies, Harrisburg, Pa.


author: Berkey, P. J.,

text:
    Lambert v. Welfley’s Executor.

      Practice Act of 1915 — Affidavit of defence by fiduciary.

    An affidavit of defence by a fiduciary in an action of assumpsit, in which he avers that he has a just and legal defence to the whole of plaintiff’s claim, based upon the fact that he has no knowledge that decedent made any such contract as that alleged by the plaintiff, is not in compliance with the requirements of section 7 of the Practice Act of May 14, 1915, P. L. 483.
    Motion for judgment for want of sufficient affidavit of defence. C. P. Somerset Co., Dec. T., 1920, No. 228.

      Boose & Boose, for plaintiff; J. C. Lowry, for defendant.
    March 22, 1921.
   Berkey, P. J.,

The plaintiff instituted this action Dec. 1, 1920, when his statement of claim was filed, and, in compliance with notice to defendant to file an affidavit of defence to the statement of claim, the defendant complied with the notice, whereupon the plaintiff filed the motion now under consideration. The Practice Act of May 14, 1915, § 7, P. L. 483, provides : “When the affidavit of defence or plaintiff’s reply is made by an executor, administrator, guardian, committee or other person acting in a representative capacity, he need only state the facts he admits to be true, and that he believes there is a just and legal defence to the remainder, and the facts upon which he bases his belief.”

An inspection of the affidavit of defence reveals that the same is a compliance with this section of the Practice Act, save as to the following averment in the fourth paragraph of the affidavit of defence. It is there averred as follows:

“The defendant avers that he believes that he had a just and legal defence to the whole of the plaintiff’s claim. For this he bases his belief on the following facts: That he has no knowledge that the decedent made any such contract as alleged by the plaintiff.”

I think this paragraph is insufficient to meet the requirements of the section of the statute above quoted. It provides in the concluding sentence, “and that he believes there is a just and legal defence to the remainder, and the facts upon which he bases his belief.” It will be observed he says in his affidavit of defence: “For this he bases his belief on the following fact: That he has no knowledge that the decedent made any such contract as alleged by the plaintiff.” Certainly this is not a statement of the facts upon which he bases his belief, for no facts are there stated.

“Assuming that the defendant is in possession of facts upon which he has a just and legal defence to the claim of plaintiff, he should in his affidavit of defence set forth these facts. If the defendant, as administrator, has no knowledge of the truth of the facts alleged by the plaintiff, nor of facts which would be the basis of a just and legal defence to the plaintiff’s claim, a general statement of his belief that he has a just and legal defence and a demand for proof of the facts alleged by the plaintiff would be sufficient, in our judgment, to create an issue which should be tried, at which trial the plaintiff would have an opportunity to establish as true the facts alleged by him:” Comerer v. Fraker’s Admin’rs, 29 Dist. R. 491.

And now, March 22, 1921, the rule to show cause why judgment should not be granted for want of a sufficient affidavit of defence is made absolute, unless the defendant files an affidavit of defence in accordance with the foregoing opinion within fifteen days from this date.

Prom Virgil R. Saylor, Somerset, Pa.


author: Wickersham, J.,

text:
    Harrisburg Light and Power Company v. Begelfer.

      Practice — Practice Act of 1915 — Set-off — Endorsement on affidavit of defence — Omission—Amendment to correct.

    It is too late, upon the trial of a case two years after filing the affidavit of defence, to permit an amendment for the purpose of correcting a failure to endorse upon the affidavit the notice required by section 15 of the Practice Act of May 14, 1915, P. L. 483, when making a claim of set-oif.
    Motion for new trial. C. P. Dauphin Co., June T., 1919, No. 51.

      Spencer Gilbert Navmian, J. E. B. Cunningham and Charles H. Bergner, for plaintiff.

      Rosenberg & Rosenberg, for defendant.
    Dec. 19, 1921.
   Wickersham, J.,

The defendant bases his motion for a new trial largely upon our ruling that he was not entitled to amend his affidavit of defence at the trial in order that it might comply with the requirements of the Practice Act of 1915.

The affidavit of defence in this case was filed by the defendant May 3, 1919. In it he attempted to plead a set-off to the plaintiff’s statement in the following language: “The pipes installed on the first floor are faulty, in that they leak, as a result of which merchandise belonging to your deponent was damaged to the extent of Eleven Hundred Dollars.” He failed to comply with section 15 of the Practice Act by endorsing upon his affidavit of defence the notice therein required. Having failed to comply with the necessary requirements of the act for a period of two years which elapsed between the filing of the affidavit of defence and the trial of the case, we declined to permit him to correct this defect at the trial. After carefully considering our action in the matter, we are not convinced that we erred in declining to permit the defendant to file an amended affidavit of defence at the trial: Greth v. Fisher, 12 Berks Co. L. J. 126, 29 Dist. R. 836. The motion for a new trial is, therefore, overruled, and judgment is directed to be entered in favor of the plaintiff for the amount of the verdict upon the payment of the jury fee.

Prom William Jenkins Wilcox, Harrisburg, Pa.


text:
    McFarland’s Estate.

      Legacy to debtor does not release debt — Retainer—Practice, O. C.

    1. A legacy to testator’s debtor does not work a release of the debt, and the legacy Is to be applied in payment of the debt.
    2. When an action at law is pending at the time of the audit to determine the validity of the alleged debt, the auditing judge will direct the accountant to retain the amount of the legacy until the issue is determined.
    Exceptions to adjudication. O. C. Phil a. Co., Oct. T., 1921, No. 699.

      Winfield W. Crawford and Henry S. Borneman, for exceptant.

      Joseph R. Embery, contra.
    March 4, 1922.
   Henderson, J.,

The exceptant is indebted to the testator in the sum of nearly $26,000, for which sum judgments are of record. By his will the testator provided for the exceptant as follows:

“I give and bequeath one-half of the purchase money derived from the sale of premises numbered 4307, 4309, 4311 and 4313 Wain Street after deducting one-half of the mortgages against said properties, collateral inheritance tax and one-half of the expenses attached to said sales unto my brother (the exceptant) absolutely.”

Proceedings are pending in the Court of Common Pleas to open and set aside these judgments, and the auditing judge directed the accountant to retain the amount of the legacy until this issue was determined. Exceptions were filed on the theory that, under the foregoing language in the will, the exceptant was entitled to the legacy, even though the judgments were not set aside.

It is contended that when the testator gave the exceptant one-half of the purchase money of four ■ properties “after deducting one-half of the mortgages against said properties, collateral inheritance tax and one-half of the expenses attached to the said sales,” he intended thereby that the amount of the legacy should not be used as a payment on account of the amount owing the estate by the exceptant. It is contended, further, that as the testator has fixed the deductions to be made from the sale price, nothing further should be deducted. The language employed by the testator does not justify such an inference; it merely indicates that the exceptant was to take one-half of the net proceeds of these four houses.

The will is silent as to the large sum owing by the exceptant, and it is argued that it is unlikely that the testator would give the exceptant a legacy of a few hundred dollars if he did not intend him to take it clear of his debt. While this is plausible, we cannot escapé the fact that the testator has not exonerated the debt. The explanation of the testator’s action may be due to the fact that these judgments were acquitted and the testator failed to mark them satisfied. If such be the fact, they may be opened and set aside.

In re Taylor, 1 Law Reports, Chancery Division (1894), 671, Mr. Justice Chitty said:

“Under the gift to the executors, they have in hand a sum of 1256 pounds, representing the profits on the testator’s share in the partnership. These profits are given to ■ his son Herbert. It is argued for Herbert and his assignees that there is no right of retainer, because the gift of these profits is a specific gift. The law is settled that, as against a specific devise which is outside the duties of the executors, there is no retainer. It is equally plain that in the case of a specific bequest of leaseholds there is likewise no right of retainer. The two things cannot be measured one against the other, and the same rule prevails also in the case of specific chattels. If in such cases the right did exist, it would be, not a right of retainer, but of lien.

NOTE. — See Young’s Estate, 30 Dist. R. 182.

“Now, if this rule were universal, there would be no right of retainer in the present case. But I find here on either side a liquidated demand. The executors have money in hand payable to the legatee, and I think I should be unnecessarily narrowing the doctrine of retainer were I to hold that the right did not exist in this case. The person to pay and the person to receive is the same. The mass of the estate is diminished by the non-payment of a debt which is due to the testator’s estate from the legatee. In my opinion, the executors have the right of retaining these profits as against the debt due from the legatee.”

The exceptions are dismissed and the adjudication is confirmed absolutely.


author: Gest, J.,

text:
    Bringhurst’s Estate.

      Wills — Adopted children not to take as children where testator died before June 7, 1917 — Family defined — Parol evidence.

    1. Where testator died before the Wills Act of June 7, 1917, P. L. 403, adopted children of a married daughter may not take under a gift in remainder to her children, even though by a subsequent codicil he authorized the daughter and “her family” to occupy one of his properties as a residence and she never had any children of her own.
    2. The word “family” signifies a collective body of persons living together as members of the same household.
    3. Parol testimony is inadmissible to show that the testator, after the adoption of the claimant, considered her a grandchild and treated her as such.
    Exceptions to adjudication. O. C. Phila. Co., Jan. T., 1914, No. 44.
    Testator died Aug. 3,1912, leaving a will dated Feb. 27, 1909, to which was added a codicil dated May 15, 1912. The will, after creating life estates for his three daughters, contained the following provision:
    “And from and immediately after the death of my said daughters or any of them I order and direct my said Trustees to pay over, divide and distribute the part or share of the principal of my said residuary estate from which the one so dying was entitled to receive only the income share and share alike to and among each and every her child or children which shall then be living or the issue of any such as may then be deceased such issue however to take only the part or share to which his her or their deceased parent would have been entitled if living.”
    By the codicil he provided as follows:
    “I direct that for a period of at least four (4) years after my death, the property at Ardmore, Pa. occupied by my daughter, Mrs. Lester Wittenburg and family, as a residence, shall be so continued without rent; and that the same conditions shall apply to the property at Llanerch, Pa. occupied as a residence by my daughter Mrs. Anna B. Martin and her family; and that in lieu of rent, for a period of four years (4) after my death, I direct that my administrator give to my daughter Helen B. Gemmill the sum of Twenty-five dollars ($25) per month for such period. These amounts to be considered separate and apart from other provisions made for them in my Will.”
    One of his daughters, Mrs. Martin, had no children when the will was made, and died without having any. The account was filed because of her death. It appears from the adjudication that on Feb. 2, 1911, she adopted, by proceedings regularly instituted in Common Pleas No. 4 of Philadelphia County, December Term, 1910, No. 2725, a female child called Florence Emily Martin, whose guardian raised the question whether she was entitled to a distributive share of testator’s estate under the above clause and codicil. At the time of her adoption, the child was about six weeks old; at the time of testator’s death she had reached the age of about a year and nine months. Evidence was received by the auditing judge, under objection, that testator had manifested affection for this particular child, given her presents, and referred to her as his grandchild, and at one time said “he was now happy that each of his daughters had a child.” The auditing judge (Gummey, J.) held this evidence inadmissible, and that the claimant could not share in the residue as a child of Mrs. Martin.

      R. M. Remick, for exceptant; Edward Wiener, contra.
    March 3, 1922.
   Gest, J.,

If this case were to be decided upon the construction of the will of 1909, it must be conceded that the adopted child of Anna C. Martin could not take under the will. The meaning of the word “child” or “children,” both in common parlance and in legal phraseology (leaving aside the matter of legitimacy), means the immediate offspring physically bom or begotten by the person named as its parent. Even a bequest to the children of the testator himself does not, in the absence of some further expression of his meaning, include his own grandchildren or his stepchildren, and a bequest to the children of a daughter cannot include her adopted child, unless the will itself shows that the testator used the word in that sense, or unless some statutory canon of construction applies, as is now found in section 16 of the Wills Act of June 7, 1917.

It is argued, however, that the subsequent codicil of May 15,1912, by which the testator directed that for four years after his death his property at Llan-erch should continue to be occupied as a residence by Mrs. Martin “and her family,” with a similar provision for another daughter, Mrs. Wittenberg, and a compensating bequest to the third daughter, Mrs. Gemmill, showed that the testator regarded the claimant as a child of Mrs. Martin, who had no natural-bom children of her own. But this use of the word “family” does not in itself indicate such an intention. “Family,” in this connection, is much broader in its meaning. It signifies the collective body of persons living together as members of the same household. It might include husband, natural-bom children, grandchildren, stepchildren or servants, as well as an adopted child, all, in fact, who might reside with Mrs. Martin and sustain the family relationship to her. Even if it clearly appeared that the testator intended by this codicil to benefit the adopted child, specifically so far as the occupancy of the house is concerned, it would not follow that he intended the adopted child to take as a remainderman under that clause of the prior will which established a trust for Mrs. Martin, with remainder to her children. In our opinion, the codicil throws no light upon the question before us.

Parol testimony was introduced at the audit, subject to objection, to show that the testator, after the adoption of the claimant, considered her as a grandchild, etc., which the auditing judge referred to in his adjudication and found to be inadmissible. We think his conclusion was correct. Parol evidence is competent only to explain ambiguities in the will or to apply its provisions to the subject or person intended when the description is defective, uncertain or too general to be understood; but when the language of the will is plain, as it is here, parol evidence is not admissible in order, first, to create the ambiguity, and then afterwards to remove it. Evidence intended to afford a light by which what is said in the will may be read and understood is proper and competent^ but that is quite different from evidence whose effect is to introduce into a will that which is foreign to it, thus giving to it operative provisions which were not in it before. The mere fact that the will gives the remainder, after the death of Mrs. Martin, to her children, when she had no children at the time of the execution of the will, does not affect the case at all. When the will was written the testator desired merely to provide for the children whom Mrs. Martin might have before her death, and this is a usual and natural provision. The fact that when she died she had no children of her own would not justify the court in including her after-adopted child, and, as we have shown, the codicil does not affect the case.

Notwithstanding the able and thorough argument of the learned counsel for the exceptant, we are of opinion that the auditing judge correctly disposed of this case.

The exceptions are dismissed and the adjudication is confirmed absolutely.