author: Fox, J.,

text:
    Commonwealth ex rel. Attorney-General v. The Ministers Protective Society.

      Beneficial societies — Reports to Insurance Commissioner — Insolvency— Issuing accident policy to members — Violation of law — Forfeiture of charter —Acts of May 17,1921, and May 20, 1921.

    1. A corporation known as The Ministers Protective Society, organized to provide protection to its members at cost by maintaining funds from dues to be used in case of sickness or death of its members, is not an insurance company or a fraternal benefit society, but is a beneficial society, and as such required to report to the Insurance Commissioner as required by section 29 of the Act of May 20, 1921, P. L. 916.
    2. Such society is not insolvent nor in such condition that further transaction of its business will be hazardous to its policy-holders, its creditors or the public within the meaning of the Act of May 17, 1921, § 502, P. L. 789, so long as it is able to pay its debts in the ordinary and usual course of its business and any loss accruing on benefit certificates can be met by dues, premiums and miscellaneous income of the society.
    3. Neither is it subject to the charge of wilfully violating the law or its charter merely because it issues an accident benefit policy to members for which it charges annual dues.
    Rule to dissolve beneficial society. C. P. Dauphin Co., Commonwealth Docket, 1927, No. 31.

      Paul C. Wagner, Deputy Attorney-General, for Commonwealth.

      Sterling G. McNees and Thomas & Thomas, for defendant.
    July 5, 1927.
   Fox, J.,

In this case, on April 27, 1927, a suggestion and order for rule to show cause was filed by the Attorney-General, praying that an order directing that The Ministers Protective Society show cause why its business should not be closed and the Insurance Commissioner should not take possession of its property; and, further, why its business should not be liquidated by and under the direction of the Insurance Commissioner and the company should not be dissolved, and for such other relief as the nature of the case and the interests of its members, its creditors and the public may require. No answer was filed to this suggestion and order, and on May 2, .1927, the rule was made absolute and an order of dissolution as prayed for was granted. On May 17, 1927, a motion was made by the defendant, in which it set forth that there was a misunderstanding between counsel for the defendant, as a result thereof and the failure to notify the defendant, the rule to show cause was made absolute to the great injury of the defendant; it also denied that the corporation is insolvent or is in such a condition that its further transaction of business would be hazardous to its members, to its creditors and to the public, and that it has wilfully violated the provisions of the Act of Assembly approved May 23, 1891, P. L. 107, or that it has violated any provisions of any law of the Commonwealth. It also averred that it is a beneficial society, and as such is not subject to the jurisdiction of the Insurance Department of our State. Whereupon a rule was granted upon the Attorney-General to show cause why the order and decree heretofore issued in this case should not be stricken from the record and the rule dismissed. An answer to this latter rule was filed- by the Attorney-General on May 19, 1927, in which the identity of the corporation was admitted and that a rule was granted and made absolute on May 2nd, but denied that no notice was received by the defendant corporation, and averred that both the officers and the duly authorized attorneys of the defendant corporation had notice and knowledge of the order and rule aforesaid. It also denied that acceptance of service of the rule was made absolute as a result of any misunderstanding or of any failure to notify the defendant, or that the making absolute of said rule was to the great injury of said defendant. It further averred that the defendant corporation is insolvent, in that the present value of the promised benefits provided in the constitution and by-laws of the defendant corporation under outstanding certificates, plus accrued liabilities, are in excess of the present value of the future net distributions provided in said constitution and by-laws, plus actual assets, by more than $675,000, and that said corporation is in such a condition that its further transaction of business would be hazardous to its members, its creditors and to the public. It averred, also, that the defendant corporation has violated the provisions of the Act of Assembly of the Commonwealth approved May 23, 1891, P. L. 107. It admitted that said defendant was incorporated as a beneficial society, but it averred that it, by reason of its class of business, has ceased to be a beneficial society solely, but is also doing a general insurance business, and, therefore, is subject to the jurisdiction of the Insurance Department under the Insurance Department Act approved May 17, 1921, P. L. 789, and under sections 14 and 29 of the Act approved May 20, 1921, P. L. 916.

A hearing was had and testimony was being taken when the court struck off the rule and order dissolving the defendant corporation. Further testimony was then taken, and it was agreed that all of the allegations set forth in the suggestion and in the answer of the Commonwealth to the defendant’s rule should be taken as included in the suggestion for dissolution, and the petition for the rule by the defendant should be taken as defendant’s answer to the suggestion, and all as being properly pleaded.

We, therefore, have before us a suggestion filed by the Commonwealth of Pennsylvania, upon relation of the Attorney-General, to dissolve and liquidate the defendant corporation and the answer of the latter.

Three important questions present themselves to us, viz.:

1. Is this corporation an insurance company, a beneficial society or a fraternal benefit society?

2. Has the Insurance Commissioner jurisdiction over all of these organizations?

3. Is the defendant corporation insolvent? Will the further transaction of business be hazardous to its policy-holders, its creditors and to the public? Has the defendant corporation wilfully violated its charter or any law of the Commonwealth?

An insurance company, as defined by the Supreme Court of our State in the case of Com. v. Equitable Beneficial Ass’n, 137 Pa. 412, is a company whose general object or purpose “is to afford indemnity or security against loss; its engagement is not founded in any philanthropic, benevolent or charitable principle; it is a purely business adventure, in which one, for a stipulated consideration or premium per cent., engages to make up, wholly or in part, or in a certain agreed amount, any specific loss which another may sustain; and it may apply to loss of property, to personal injury or to loss of life. To grant indemnity or security against loss for a consideration is not only the design and purpose of an insurance company, but is also the dominant and characteristic feature of the contract of insurance.”

In the same case a beneficial society has been defined as being a company having “A wholly different object and purpose in view. The great underlying purpose of the organization is not to indemnify or to secure against loss; its design is to accumulate a fund from the contributions of its members, ‘for beneficial or protective purposes,’ to be used in their own aid or relief, in the misfortunes of sickness, injury or death. The benefits, although secured by contract, and for that reason to a limited extent assimilated to the proceeds of insurance, are not so considered. Such societies are rather of a philanthropic or benevolent character; their beneficial features may be of a narrow or restricted character; the motives of the members may be to some extent selfish, but the principle upon which they rest is founded in the considerations mentioned. These benefits, by the rule of their organization, are payable to their own unfortunate out of funds which the members have themselves contributed for the purpose, not as an indemity or security against loss, but as a protective relief in case of sickness or injury, or to provide the means of a decent burial in the event of death. Such societies have no capital stock. They yield no profit, and their contracts, although beneficial and protective, altogether exclude the idea of insurance, or of indemnity, or of security against loss.”

A fraternal benefit society, as defined by the Act of May 20, 1921, § 1, P. L. 916, is: “Any corporation, society, order or voluntary association, without capital stock, organized and carried on solely for the mutual benefit of its members and their beneficiaries and not for profit, having a lodge system with ritualistic form of work and a representative form of government, and which makes provision for the payment of benefits in accordance with the provisions of this act.”

An examination of the charter of this society and the evidence taken in-the case discloses that this society is not an insurance company. It is also apparent that it is not a fraternal benefit society, for the reason that it does not come within the purview of the above definition, for it does not have a lodge system with ritualistic form, and for the further reason that it did not comply with the Act of April 6, 1893, P. L. 10, which, amongst other things, provides: “Any fifteen or more persons, nine of whom shall be citizens and residents of this Commonwealth, having associated themselves as a secret fraternal beneficial society, order or association, may be incorporated under the provisions of this act.” Nor did it take advantage of the Act of April 6, 1893, P. L. 7, which in substance provides for a change from a beneficial society to a fraternal benefit society.

It is true that in the 7th section of the charter of the defendant corporation it is designated as a fraternal benefit society in the following language: “This is a fraternal benefit society and has no capital stock, but certificates of membership will be issued to each of its members.” But in the 2nd section the purpose of the corporation is set forth as follows: “To provide protection to its members at actual costs, by maintaining funds from dues collected from its members, to be used for beneficial and protective purposes in case of sickness, disability or death of its members.” Nowhere else is the purpose of the society set forth. In the case of Bank of Pennsylvania v. Com., 19 Pá. 144, the court, at page 155, said: “If anything is settled, it is this rule of construction, that a corporation takes nothing by its charter except what is plainly, expressly and unequivocally granted; and that in all things else the powers which the State may exercise over its affairs are as full and ámple as if it were an individual carrying on the same business.” And in the case of Bly v. White Deer Mountain Water Co., 197 Pa. 80, 92, the court said: “The certificate of incorporation as well as the letters-patent issued to a corporation by the Governor must conform to and comply with the statutory requisites. There can be no authority or power conferred upon a corporation by the certificate or letters-patent, except such as are clearly given by, or necessarily implied from, the language of the statute under which they are granted. Equally true is it that the rights and privileges of a corporation must be written in the charter or they do not exist. When a corporate body asserts its right to do a thing or to deprive an individual of his property, even for an adequate compensation, it must be able to show that the right is conferred by the plain and unequivocal language of its charter. The language of Chief Justice Black in Com. v. Erie, etc., R. R. Co., 27 Pa. 351, may be appropriately quoted in this connection: ‘That which a company is authorized to do by its act of incorporation it may do; beyond that all its acts are illegal. And the power must be given in plain words or by necessary implication. All powers not given in this direct and unmistakable manner are withheld. If you assert that a corporation has certain privileges, show us the words of the legislature conferring them. Failing in this, you must give up your claim, for nothing else can possibly avail you. A doubtful charter does not exist, because whatever is doubtful is decisively certain against the corporation.’ ”

The settled rule, as we have noted above, has not been changed, and in defining the powers of a corporation we must look to the purpose set forth in the charter and not to the name. In this case the purpose as set forth in section 2 and the act of assembly under which the society was incorporated are neither the purpose, nor the act of assembly enacted for the incorporation of fraternal benefit societies. Section 7 of the charter is in conflict with section 2, and the act under which this society was incorporated, therefore, is of no binding force. We are, therefore, of the opinion that this is a beneficial society.

It being a beneficial society, we think it comes under the jurisdiction of the Insurance Commissioner under section 29 of the Act of May 20, 1921, P. L. 916, which provides as follows: “Beneficial societies, other than those specifically exempted herein, without'ritualistic work or a representative form of government, transacting any class of insurance, shall be required to comply with this act. All such societies or associations shall, on and after the passage of the act, file with the Insurance Commissioner copies of their charter, constitution and laws, and annually thereafter make a report in such form as the commissioner may require, showing their condition and standing on the 31st day of December preceding, and of their transactions for the year, and the commissioner may at any time make an examination of the books and accounts of any such society.” Under this section of the act, this beneficial society, not being one of those specifically exempted, must, amongst other things, make a report to the Insurance Commissioner in such form as the latter may require, and the latter may at any time make an examination of the books and accounts of the society.

Under section 502 of the Act approved May 17, 1921, P. L. 789, it is provided: “Whenever any domestic insurance company, . . . including all corporations, associations, societies and orders which are subject to examination by the Insurance Commissioner, ... (a)) is insolvent; ...(e) is found, after an examination,' to be in such condition that its further transaction of business will be hazardous to its policy-holders, or to its creditors, or to the public, or (f) has wilfully violated its charter or any law of the Commonwealth, the Insurance Commissioner shall communicate the facts to the Attorney-General, who shall, after hearing, apply to the Court of Common Pleas of Dauphin County, or to the court of any county in which the principal office of such company, association, exchange, society or order is located, for an order directing such company, association, exchange, society or order to show cause why its business should not be closed and the Insurance Commissioner should not take possession of its property and conduct its business, and for such other relief as the nature of the case and the interests of its policy-holders, creditors, stockholders or the public may require.”

We are, therefore, of the opinion that the procedure to be followed by the Insurance Commissioner and the Attorney-General under this section was properly followed in this case.

We have nowhere in the act a definition of solvency or insolvency of a beneficial society. Our Supreme Court, however, has defined it in the case of Taylor v. Order of Sparta, 254 Pa. 556. In quoting from the case of Com. ex rel. v. Tradesman’s Trust Co., 237 Pa. 316, in an opinion by Mr. Justice Mitchell, it said: “‘Insolvency in its legal sense, as dealt with by the law regulating banks, trust companies and kindred corporations, exists whenever such an institution, from any cause, is unable to pay its debts in the ordinary or usual course of its business.’ It is evident that the Order of Sparta is not insolvent in this sense.” Applying this definition of insolvency to the defendant corporation, we cannot find it to be insolvent. The evidence discloses its obligations are for sickness, accident, burial, death, accidental or natural, and annuities, all of which are authorized by the charter. In the year 1926, for such obligations, the corporation paid out $14,470.71; its other expense in the conduct of its business for the year amounted to $56,465.28, making a total expenditure of $70,935.99, all of which was met by the income during the same period made up by dues, premiums, rents and other miscellaneous receipts, totaling $97,419.60, and at the expiration of this period the defendant corporation had a surplus of $93,605.04. The contention of the Commonwealth is that the company is not actuarially solvent; that is, that the ratio of assets, contingent and otherwise, to contingent and .matured liabilities is not at least 100 per cent., bur, on the other hand, is very much less. We find nowhere in the law relating to beneficial societies such requirement of solvency, but, on the other hand, such requirement only as is defined by the Supreme Court, quoted above. We find from the evidence submitted that the society is able to pay its debts in the ordinary or usual course of its business, and, therefore, is not insolvent.

We cannot find from the evidence in the case that the corporation is in such a condition that its further transaction of business will be hazardous to its policy-holders, to its creditors or to the public. The corporation has been in existence for a period of about seven years and up to this time has promptly met all of its financial obligations. The outstanding obligations, as we have quoted above, are for sickness, accident and death, accidental or natural, and annuities. The evidence shows that the loss accruing from sickness, disability or death in the ordinary course of business will be met by the dues, premiums and miscellaneous income. As to the annuities, the contract is one that is quite favorable to the defendant corporation, in that no annuity is to be paid unless the member was a member for fifteen years and has reached the age of sixty-five, and that in no one year shall more be paid out in annuities than will equal the income from investments, plus 2 per cent, of the annuity fund. The evidence discloses that the defendant corporation has discontinued the Christian Workers Policy and will not in the future conduct any business along this line. If this is adhered to, the scope of liabilities of the defendant corporation will be reduced. We cannot find that the corporation is in such condition that its further transaction of business will be hazardous to its policy-holders, creditors or to the public.

As to the last reason assigned by the Attorney-General, to wit, that the corporation has wilfully violated its charter and the law of the Commonwealth, the evidence discloses that the defendant corporation was issuing an accident benefit policy, known as the Christian Workers Policy, with a maximum liability of $2200 and a minimum liability of $500. The Commonwealth contends that the corporation, in doing this, was operating as a general accident and health insurance company, and, in doing so, was violating its charter and the law. One of the purposes as disclosed by the charter is to provide protection to its members by maintaining funds from dues collected from the members, to be used for beneficial and protective purposes in case of the disability of any of them. ' An examination of the policy in question discloses that the member protected by the policy paid annual dues in the amount of $10. We see no violation of the charter or the law in the corporation issuing this policy. It is not insurance; it does not come within the definition of insurance as we have previously quoted it, and we think it is specifically provided for in the charter of the corporation.

The Commonwealth also contends that the defendant corporation is not a beneficial association in which the privileges of membership are restricted to a class. Even if this be so, it is not a violation of the charter or the law. The charter, by section 8, provides, amongst other things, “that any clergyman or other Christian worker, as may be more fully described in the by-laws, . . . may become a member of this society upon the payment of a membership fee of three '($3.00) dollars.” The by-laws set forth the various persons designated as Christian workers and eligible to become members, and there is no evidence that there were members other than those designated in the charter and by-laws.

Another contention of the Commonwealth for dissolution is that the issuing of a contract carrying annuity benefits makes it incumbent upon the corporation to provide a fund for the payment of such annuities when they come due. The by-laws provide that the total amount of annuities paid in any one year shall not exceed the income of the invested funds of the society, plus 2 per centum of the annuity fund. This provision requires that an annuity fund be set up. This could be done by withdrawal from the surplus. The failure to do this when the means are at hand with which to do it is not sufficient reason to dissolve the corporation.

It is also contended that the defendant has failed to comply with the provisions of the Act of May 23, 1891, P. L. 107. The defendant is not bound so to comply. The last sentence of that act is that it shall only apply to companies employing agents and doing a general public insurance business. The testimony discloses that this company does not employ agents and that it does not conduct a general public insurance business.

There are some matters which, while not so serious as to require a dissolution of the corporation, yet we think should be discontinued or changed, to wit, the payment of large annual directors’ fees and salaries which are perhaps excessive in consideration of the services rendered by the persons receiving them and the high cost of conducting the business of the society. There is a disposition, we think, as disclosed by the testimony on the part of the officers of the corporation, to remedy such evils or defects. This can well be done by heeding the advice of the Insurance Commissioner and legal counsel relating to such matters.

And now, July 5, 1927, upon due consideration, the rule to show cause why the corporation should not be dissolved is discharged.

Prom C. P. Addams, Harrisburg, Pa.


source: Caselaw Access Project

author: Schnader, Special Dep. Att’y-Gen.,

license: Public Domain

text:
    Members of Legislature—Appointment to Public Office.

      Public officers — Administrative officers — Trustees of State institutions— Appointment of members of the legislature such trustees — Constitutional law —Acts of June 7,1923, P. L. J>98, and April 13, 1927 (Act No. 16J¡.).

    1. Under the Constitution of Pennsylvania, art. ii, § 6, the Governor has no power to appoint members of the general assembly to membership on departmental administrative boards or commissions or advisory boards or commissions of the State government.
    2. As boards of trustees of State institutions are departmental administrative boards, members of the general assembly cannot validly be appointed to membership on them.
    3. Members of departmental administrative boards or commissions or advisory boards or commissions of the State government are "civil officers” within the meaning of article ii, section 6, of the Constitution, which reads: “No senator or representative shall, during the term for which he shall have been elected, be appointed to any civil office under the Commonwealth . . .”
    Department of Justice. Opinion to Hon. John S. Pisher, Governor of the Comonwealth.
    June 7, 1927.
   Schnader, Special Dep. Att’y-Gen.,

We have your request to be advised whether the Constitution permits you to appoint members of the legislature as members of departmental administrative boards or commissions or advisory boards or commissions of the State government, and particularly whether you may appoint members of the legislature to membership on boards of trustees of State institutions.

Article II, section 6, of the Constitution provides that: “No senator or representative shall during the time for which he shall have been elected be appointed to any civil office under this Commonwealth. . . .”

Obviously, the only question involved in your inquiry is whether the members of departmental administrative boards and commissions and of advisory boards and commissions of the State government are civil officers within the meaning of the provision of the Constitution just quoted.

The Administrative Code of 1923 (Act of June 7, 1923, P. L. 498), as amended by the Act of April 13, 1927 (Act No. 164), is the statute under which the Governor is authorized to appoint the members of all departmental administrative boards and commissions and advisory boards and commissions of the State government. Boards of trustees of State institutions are departmental administrative boards, and it will, therefore, not be necessary in this opinion to make separate mention of them.

Section 206 of the Administrative Code provides for the appointment by the Goyernor, with the advice and consent of two-thirds of all the members of the Senate, of the members of all departmental administrative boards and commissions and of all advisory boards and commissions, “except as in this act otherwise provided.” An examination of the remaining sections of the act discloses the fact that all of the exceptions are cases in which persons become members of boards and commissions ex o-fficio or are appointed by authorities other than the Governor. It appears, therefore, that section 206 of the Code covers every case of an appointment by the Governor of a member of a departmental administrative board or commission or of an advisory board or commission.

All of the Governor’s appointees to membership on the boards and commissions under discussion are appointed for definite terms. Their terms are fixed either by section 207 of the Administrative Code or by the sections of article IV which deal with the organization of the several boards and commissions respectively.

The powers and duties of members of all of these-boards and commissions are definitely prescribed in the Administrative Code. It will not be necessary to consider these powers and duties in detail, but, in view of the fact that your inquiry particularly mentions the boards of trustees of State institutions, we call attention to the fact that the powers and duties of members of these boards of trustees are prescribed by sections 1311 and 2019 of the Administrative Code. Both sections give to the boards of trustees of State institutions the. “general direction and control of the property and management” of the institutions over which they respectively have jurisdiction, and specifically the power to elect superintendents, to appoint all officers and employees who may be necessary for the work of the respective institutions, and to fix the compensation of such officers and employees in conformity with the standards established by the executive board.

Members of certain departmental administrative boards and commissions are compensated for the time which they devote to their public duties. Members of other such boards and commissions serve without compensation, but are entitled to the expenses which they incur in performing the duties imposed upon them by law.

All members of these boards and commissions are obliged, before entering upon the performance of their duties, to take and subscribe the constitutional oath of office which must be filed in the office of the Secretary of the Commonwealth. Section 218 of the Administrative Code, which imposes this requirement, uses the expression, “All persons appointed by the Governor under the provisions of this act . . . shall, before entering upon the duties of their offices, take and subscribe the constitutional oath of office. ...”

It appears, therefore, that the members of all departmental administrative boards and commissions and of all advisory boards and commissions appointed by the Governor are appointed for definite terms, with or without compensation, receive the expenses incurred by them in the performance of their duties, have their powers and duties specifically conferred and imposed upon them by statutory law, and are referred to as persons holding “offices” who must take and subscribe the constitutional oath of office.

The Administrative Code, as a whole, deals with the conduct of the executive and administrative work of the Commonwealth. Clearly, the members of the several boards and commissions to which your inquiry refers exercise a part of the sovereignty of the Commonwealth of Pennsylvania in the executive field of the Commonwealth’s activities.

Were there no authority to guide us, we would have no difficulty in reaching the conclusion that members of departmental' administrative boards and commissions and of advisory boards and commissions appointed under the provisions of the Administrative Code, as amended, hold “civil offices under this Commonwealth;” and this conclusion is amply justified by all of the precedents afforded both by the decisions of our courts and the opinions of former Attomeys-General.

Attorney-General Carson, on July 31, 1903, rendered an opinion, in which he discussed the proper definition of a “civil office under this Commonwealth.” He referred to a number of definitions of “public officer,” and reached the conclusion that “public office” involves the idea of tenure, duration, fees, emoluments and powers as well as that of duty, and “implies an authority to exercise some portion of the sovereign power of the State, either in making or in executing the laws:” Factory Inspector’s Lawyer, 12 Dist. R. 587; 28 Pa. C. C. Reps. 369.

In Com. ex rel. v. Murphey, 11 Dist. R. 361, 25 Pa. C. C. Reps. 637, Judge Weand, of the Court of Common Pleas of Montgomery. County, quoted, among others, the following definition from Tiedman on Municipal Corporations: “The word ‘office’ embraces a more or less permanent delegation of a portion of governmental power, coupled with legally-defined duties and privileges, continuous in their nature, and which, upon the death, resignation or removal of the incumbent, devolve on his successor.”

Continuing, Judge Weand said: “The thought running through every definition of an officer is that he shall perform some service of, or some duty to, the Government, State or municipal corporation and not merely to those who appoint or elect him. His tenure must be defined, fixed and certain and not arise out of mere contract of employment.”

In 46 Pa. C. C. Reps. 530 appears an opinion of the Attorney-General holding that a fish warden is a civil officer under the Commonwealth, and that, therefore, a member of the legislature cannot be appointed as such. See, also, opinion of Deputy Attorney-General Brown, in Common Pleas Judgeship, 4 D. & C. 408.

While there are no decisions of the appellate courts of this Commonwealth dealing expressly with the meaning of “civil office under this Commonwealth,” as used in article II, section 6, of the Constitution, there are a number of relevant definitions of “public officer,” to which we shall refer briefly.

In Com. v. Moffitt, 238 Pa. 255, Mr. Justice Mestrezat, in holding that a poor director is a public officer, said, at page 263: “He is selected by the people to perform certain imposed duties and exercise certain prescribed powers in the government of the State or the municipal -division thereof for which he is chosen. His office is administered for the benefit of the public, and to the extent of the powers conferred by law'he exercises the functions of government.”

In Tucker’s Appeal, 271 Pa. 462, Mr. Justice Kephart quoted with approval the language used in Com. v. Moffitt, and held that county commissioners, when acting as overseers and directors of the poor under an act of assembly, are “public officers.” See, also, Com. v. Moore, 266 Pa. 100; Dewey v. Luzerne County, 74 Pa. Superior Ct. 300, and Com. v. Moore, 71 Pa. Superior Ct. 365.

Every essential element necessary to constitute one a public officer is present in the case of members of departmental administrative boards and commissions and of advisory boards and commissions appointed under the provisions of the Administrative Code, except that in certain instances the members, while entitled to receive their expenses, are not compensated for the services which they render. It is our opinion that the presence or absence of this element is inconsequential in cases in which appointees serve for definite terms, perform only those duties and exercise only those powers prescribed and conferred by statutory law, and are compelled, before beginning their terms of service, to take, subscribe and file the constitutional oath of office.

Accordingly, you are advised that the Constitution of this Commonwealth forbids the appointment of members of the general assembly to membership on departmental administrative boards or commissions or advisory boards or commissions of the State government. As boards of trustees of State institutions are departmental administrative boards, members of the general assembly cannot validly be appointed to membership on them.

Prom C. P. Addams, Harrisburg, Pa.


author: McPherson, P. J.,

text:
    Cather v. Hess.

      Practice — Judgment for want of appearance — Irregularity in summons.

      1. Judgment for want of an appearance cannot be sustained where the summons in a suit by “W. E. Cather” directs defendant to appear and answer “W. E. Carter.”

      Statement of claim — Affidavit by attorney — Non-residence of plaintiff.

    2. Such judgment will be stricken oil where the affidavit to the statement of claim was taken by the attorney for plaintiff without averment that he had knowledge of the facts, and merely stating he made the affidavit because his client resided beyond the jurisdiction of the court.
    Rule to open judgment entered for want of appearance. C. P. Fulton Co., Jan. T., 1927, No. 14.

      John B. Jackson, for rule; John P. Sipes, contra.
    March 21, 1927.
   McPherson, P. J.,

Suit was instituted in the Court of Common Pleas of Fulton County by W. E. Cather against Retta Hess on Oct. 19, 1926, and on Oct. 19, 1926, a summons was issued, in response to the prsecipe filed in the above-entitled action, which, on its face, directed the sheriff to summon Retta Hess to appear, on the first Monday of November next, to answer W.' E. Carter in a plea of assumpsit. A return of this summons was filed on Oct. 21, 1926, by J. Minnick Mellott, Sheriff, wherein he certified that he had served the writ upon Retta Hess personally by reading the summons to her and leaving a true and attested copy thereof with her, together with a copy of the plaintiff’s statement of claim. The statement of claim filed in said action was filed Oct. 19, 1926. On Nov. 3, 19'26, on motion of the plaintiff’s attorney, judgment was entered by the prothonotary in favor of W. E. Cather, and against Retta Hess, for want of an appearance by the defendant, in the sum of $3228.49, with interest thereon from Nov. 2, 1926.

On Nov. 6th, a rule was awarded on petition of the defendant directed to W. E. Cather, the plaintiff, to show cause why judgment entered against the defendant, Retta Hess, for want of an appearance should not be opened and the defendant let into a defence. To this rule an answer was filed Nov. 17, 1926.

The questions raised by the petition and answer:

1. Whether, in view of the summons directing the defendant to appear and answer W. E. Carter in a plea of assumpsit, there is not such a defect at the inception of the action as would prevent judgment for want of an appearance.

2. Whether the affidavit to the statement of claim filed by the plaintiff is not so defective as to warrant an opening of the judgment.

3. Whether or not there is such a defence to the merits of the claim as would induce the court to open the judgment and let the defendant into a defence..

The Practice Act of May 14, 1915, P. L. 483, does not provide for the taking of judgment for want of an appearance. The judgment taken is based upon the Act of June 13, 1836, P. L. 568, and is provided largely as a penalty in contempt of court, based on the failure of the defendant to comply with the mandate of the summons, wherein the defendant is directed to appear on a day certain. One of the conditions for the entry of such a judgment, according to the Act of 1836, is that a declaration must have been filed before the return-day of the writ. Under the Practice Act of May 25, 1887, P. L. 271, it was provided that “the declaration” of the plaintiff in an action of assump-sit should consist of “a concise statement” of the plaintiff’s demand in terms described by the act of assembly. Under the Act of 1887, it has been held that a declaration being provided for in the form of a statement, the failure of the Act of 1887 to provide for judgment for want of an appearance did not prevent the entry of such judgment under the Act of 1836. The Practice Act of 1915 makes no reference to the declaration required to be filed by the plaintiff in a suit, but provided that the pleadings shall consist of the plaintiff’s statement of claim, the defendant’s affidavit of defence,’and, where a set-off or counter-claim has been set up, the plaintiff’s reply thereto. Because the Act of 1915, which now regulates practice, does not require the filing of a declaration, it is urged that under the Act of 1836 no judgment for want of an appearance can be taken, as the condition prerequisite to such a judgment does not exist and that the plaintiff should have filed a declaration. In view of the disposition made of the case, it is not necessary to pass upon the question.

From the decisions, it appears that a judgment for want of an appearance can be set aside either for irregularity or may be opened in the discretion of the court to let the defendant into a defence where there seems to be a good defence upon the merits of the case. The defect in the summons served upon the defendant, viz., that it directed the defendant to answer, in an action of assumpsit, a plaintiff who was an entirely different person in name from the person who was the plaintiff in the particular action, would seem to be a defect of a substantial and important character and be an irregularity which would not warrant the imposition of the penalty of a judgment for want of an appearance in favor of a plaintiff to whom the summons did not direct the defendant to make answer. To sustain a judgment for want of an appearance, assuming that we treat the statement of claim as the declaration required by the Act of 1836, this statement of claim should certainly be self-sustaining and comply with the terms of the act under which it is filed before it could be the basis for a judgment for want of an appearance as against the defendant.

In this instance, the suit in question was on a negotiable note alleged to be in the hands of the plaintiff, W. C. Gather, a holder thereof in due course and before maturity and upon which the defendant was the prior endorser. The Act of 1915 requires that the statement of claim filed shall be sworn to by the plaintiff or some other person having knowledge of the facts. In the statement filed, the affidavit attached thereto is verified by John P. Sipes, Esq., the attorney for the plaintiff. This affidavit fails to set forth that the affiant has any knowledge of the facts, but merely states that he makes the affidavit because of the facts so stated in the plaintiff’s statement of claim appearing on the face of the promissory note, which is the subject of the suit, and because the facts stated in the plaintiff’s statement of claim appear on the face of the promissory note, which is the subject of the suit, and because his client resides beyond the jurisdiction of the court. We take it that neither of these reasons is sufficient to warrant the affiant in making the affidavit as to the allegations made in the statement of claim, which include others than those that appear merely from the presence of certain writings on the face of the instrument. The non-residence of the plaintiff is no excuse for the absence of his affidavit required by the act.

In view of irregularity in the summons and the defect in the statement, we are of the opinion that this judgment for want of an appearance should be stricken off. The plaintiff relied on Shenk v. Hacker, 3 Pa. Superior Ct. 439, to establish the proposition that the judgment entered by default will not be opened save for fraud, duress or mistake. A careful reading of this case clearly demonstrates that no such principle was decided. The reference by the court to fraud, duress or mistake was in relation to a possible defence against a written instrument or contract executed by the defendant, which defence would have to be based upon fraud, duress or mistake.

And now, March 21, 1927, rule issued in this proceeding is made absolute, and it is hereby ordered and directed that the judgment entered for want of an appearance be stricken off the records.


author: HasslER, J.,

text:
    Seiple v. Long.

      Statute of frauds — Oral contract to pay debt of another — Act of April 26, 1855, sect. 1, P. L. 808.

    The plaintiff contracted to build two adjoining- houses, one for the defendant and one for his father, who died before it was finished, naming the defendant’s tirother as his executor, and brought suit to recover for extra work and materials furnished for the father’s house on the orders and promises of the defendant and the oral statement of the executor that he would leave it to his brother, the defendant, to direct the work: E-eld, that a non-suit was properly entered, as the defendant was either acting as agent for another or promised orally to pay the debt of another.
    Rule to strike off judgment of non-suit. C. P. Lancaster Co., Sept. T., 1925, No. 78.

      H. Frank Eshleman, for rule; Jacob Hill Byrne and John A. Coyle, contra.
    Jan. 15, 1927.
   HasslER, J.,

The facts shown by the testimony in this case are as follows: The plaintiff, a contracting carpenter, built two adjoining houses, Nos. 138 and 140 Dauphin Street, in this city, during the fall of 1924. The one at No. 138 Dauphin Street was owned by and built under a contract with Louis D. Long, the defendant. The other, at No. 140 Dauphin Street, was owned by and built under a written contract with Louis D. Long, Sr., father of the defendant, who died before it was finished. He left a will in which Carl G. Long was named executor. I'he will was proven and letters testamentary were granted to him.

The plaintiff did extra work on, and furnished extra material for, both houses. He has filed a lien for the work done and materials furnished on the defendant’s house at No. 138 Dauphin Street, and brought this suit to recover from the defendant for the extra work and material furnished for the house of the defendant’s father at No. 140 Dauphin Street. At the trial we entered a non-suit, which we are now asked to strike off.

Our reasons for entering a non-suit were (1) that the testimony showed that the defendant was not acting for himself, and was, therefore, not liable to pay for the- extra work and material furnished for the house of his father at No. 140 Dauphin Street; and (2) that, even though he promised to pay for them, he was not liable, as the promise, if any was made, was to pay the debt of another, and, as it was not in writing, under the statute of frauds it is void.

A careful reading of all the testimony and the plaintiff’s brief satisfies us that no error was committed in entering the non-suit. The plaintiff testified that he had a contract with the defendant to do work at house No. 140; that he did it at his orders, though he did not own it. He testified: “Q. Do you know whether Louis D. Long owne'd the house, 140 Dauphin Street? A. No, sir; Louis Long does not own the house at 140. Q. Then you have sued Louis D. Long for work done on a house that did not belong to him? A. He was given orders to tell me to do the work. Q. How do you know he was given the orders to tell you to do the work? A. By Carl G. Long, the executor of the estate. Q. How do you know it by Carl G. Long, the executor? A. He told me personally; he said, ‘Mr. Seiple, it is impossible, I cannot be here all the time, I leave it to Louis, my brother, for the orders, and you do what he tells you, it will be all right.’ Q. 140 Dauphin Street, about which we are now talking, belonged to Louis G. Long, who died after the written contract was made between you, the written contract for the erection of the two houses? A. As far as I know it was. ... Q. You say that Carl G. Long was one of the executors of Louis G. Long? A. Yes, sir. Q. Did Carl G. Long tell you that orally, or did he give you a letter? A. He gave it to me orally; no letter.” He then testified: “Q. What did you tell him (the defendant)? A. I told him that due to the fact that he was ordering this I expected him to pay for it, and he accepted that. Q. Did he agree to it? A. Yes, sir; he did. . . He subsequently testified that the defendant told him, when he instructed him as to extra work at both houses, that his money was paying for these, and I want it done, and I told him all right. “Q. Louis D. Long told you his money was paying for the house that belonged to himself as well as his father’s? A. Not that belonged to his father, no. Q. If 140 belonged to his father he could not have told you his money was paying for 140? A. He told me his money was paying for the one he was supposed to have for himself. Q. That was 138, not 140? A. Yes, sir. Q. Then he did not tell you he personally would be responsible for the work done on his father’s house, 140; is that right? A. No, sir.”

It is clear from this testimony that the defendant was acting in the whole transaction as agent for the owner of the house at No. 140, and his executor, and that the plaintiff knew, as he says, that under these circumstances he did not promise to make himself liable for it.

If such promise to pay was made by the defendant, it was to pay the debt of the owner of the property, No. 140, as plaintiff admits that he knew that the defendant was acting for the owner and executor of the deceased owner of that house, so that the promise, if made, was to pay the debt of another and not binding upon him. Under the Act of April 26, 1855, P. L. 308, section 1 of which provides that no action can be brought on the promise of any defendant to pay the debt of another, unless the promise is in writing, an oral promise to pay the debt of another is without effect and void: Shannon v. American Co., 66 Pa. Superior Ct. 211; Riley v. Kahan, 68 Pa. Superior Ct. 415; Lyndall Co. v. Langinger, 75 Pa. Superior Ct. 317.

In either view of the case, if the defendant was acting as the agent for the owner and executor, the plaintiff must recover, if at all, from them.' If he seeks to recover because the defendant promised to pay him, such promise is void and non-enforceable. The judgment of non-suit was, therefore, properly entered, and the rule to strike it off is discharged.

Rule discharged. Prom George Ross Eshleman, Lancaster, Pa.


author: Henninger, P. J.,

text:
    Holben’s Estate.

      Marriage — Common law — Cohabitation and reputation — Presumption— Rebuttal of.

    1. Where a woman is deserted by her husband in another state and subsequently, under the belief that he is dead, removes to Pennsylvania, and later, being refused a marriage license without proof of divorce or death of her prior husband, goes to another state to be married and returns to Pennsylvania to live, and some time later learns that her former husband was alive when she remarried, but has since died, her void second marriage is not validated by such death, and, where no subsequent marriage ceremony or mutual contract is shown, a common-law marriage is not established by continuing to live together as husband and wife for many years up to the time of the death of the second husband.
    2. The presumption of marriage which arose in such case from continued cohabitation as man and wife after the death of the first husband is rebutted by her own testimony that no agreement of any kind was in fact made between the parties.
    Claim for widow’s exemption. O. C. Butler Co., March T., 1927, No. 14.

      Marshall & Watson, for claimant; Galbreath & Galbreath, for exceptants.
    July 22, 1927.
   Henninger, P. J.,

John L. Holben, of Slipperyrock, Butler County, Pennsylvania, died testate on Jan. 3, 1926, survived by twelve children of a deceased wife. Under the name of Sarah J. Holben, the claimant seeks a widow's interest in his estate. • She filed an election to take against his will and a petition for a widow’s exemption. A widow’s appraisement was had and decedent’s children excepted thereto on the ground that she was not their father’s lawful wife. Prom the testimony taken and the evidence offered on the part of exceptants and of claimant, we make the following findings:

Findings of fact.

1. Claimant was lawfully married to one Charles A. Eastman, Jan. 26, 1871, in Manchester, Coffee County, Tennessee.

2. In the year 1883 Charles A. Eastman deserted claimant in their common domicile, Coffee County, Tennessee, and from that time until his death claimant never knew where he was or whether he was dead or alive.

3. In the year 1886 claimant left their common domicile, Coffee County, Tennessee, and moved to Armstrong County, Pennsylvania.

4. On Aug. 18, 1898, claimant entered into a contract of marriage with John L. Holben, the decedent, before a justice of the peace in the State of New York.

5. On May 12, 1900, Charles A. Eastman entered into a contract of marriage with one Rachel Jennings in the State of Michigan.

6. Charles A. Eastman died in the State of Michigan on Nov. 8, 1903, and within a few years of that time claimant learned of his death.

7. Claimant and Charles A. Eastman were never divorced.

8. Claimant and decedent cohabited as husband and wife and were so reputed and so recognized by their friends and so acknowledged by each other from the date of their marriage, Aug. 18, 1898, to the time of his death, Jan. 3, 1926.

9. Prior to the marriage of claimant to decedent, through a letter from a friend of hers in Tennessee, she learned that Charles A. Eastman was reported dead. She then engaged counsel in Tennessee to investigate and locate him, if living. Counsel reported that he could not learn anything about him.

10. Before contracting the marriage with decedent in the State of New York, claimant and decedent applied for a marriage license in their home county in the State of Pennsylvania and learned that none could he obtained without proof of a divorce or the death of Charles A. Eastman.

11. Claimant and decedent, after learning that they could not obtain a license to marry in the State of Pennsylvania, went into the State of New York for the express purpose of contracting a marriage in that state and immediately returned to their home in Armstrong County, Pennsylvania, to live as man and wife under the marriage so contracted.

12. When claimant and decedent contracted the marriage in the State of New York and returned to their home to cohabit as man and wife thereunder, they believed that they had been legally married and continued in that belief until they were separated by his death.

13. When claimant married decedent in the State of New York, she was not in possession of a well-founded rumor that Charles A. Eastman was dead.

14. No children were born to claimant and decedent.

15. After the death of Charles A. Eastman in 1903, no contract of marriage was ever entered into between claimant and decedent, either ceremonially or by mutual consent.

Conclusions of law.

1. The marriage of claimant to Charles A. Eastman, contracted in the State of Tennessee, Jan. 26, 1871, was a valid marriage and continued so until it was terminated by the death of Charles A. Eastman, Nov. 8, 1903.

2. The marriage of claimant to decedent in the State of New York, Aug. 18, 1898, may have been a valid contract of marriage in said state, and if contracted between subjects of said state may be entitled to recognition in all jurisdictions, bijt under the facts and circumstances of this case is absolutely void in the State of Pennsylvania.

3. Claimant is not decedent’s common-law wife. The presumption of a marriage raised by cohabitation and reputation is overcome by claimant’s own testimony that no marriage contract was entered into.

Discussion.

Claimant, to establish her right to a widow’s exemption in the estate of John L. Holben, deceased, must show that she was his lawful wife, so constituted by a valid contract of marriage entered into by ceremony or common consent. Marriage is a civil contract requiring no particular form, but, like any other contract, must be evidenced by words in the present tense, uttered with a view to establish the relation of husband and wife: Richard v. Brehm, 73 Pa. 140; Craig’s Estate, 273 Pa. 530.

Claimant produces a certificate of marriage issued by a justice of the peace in the State of New York, Aug. 18, 1898, and contends that it evidences her marriage to decedent. Exceptants contend that the marriage evidenced by this certificate is absolutely null and void, because at that time claimant’s husband, Charles A. Eastman, was undivorced from her and was in full life. The evidence clearly establishes that claimant was married to- Charles A. Eastman Jan. 26, 1871; that the marriage was a valid contract of marriage; that Charles A. Eastman died Nov. 8, 1903; and that claimant was never divorced from Charles A. Eastman, and at the time of his death wás still his lawful wife.

When claimant entered into the contract of marriage with decedent, she had not heard of her former husband, Charles A. Eastman, for approximately fifteen years. She did not know whether he was dead or alive. Her marriage under those conditions raises a presumption that he was dead: Francis v. Francis, 180 Pa. 644. This presumption, however, disappears in the face of the undisputed proof that Charles A. Eastman was not dead, but was residing in the State of Michigan. Two years after claimant married decedent, her husband, Charles A. Eastman, contracted a marriage in the State of Michigan. The marriages of both claimant arid Charles A. Eastman, by presumption of innocence, created a presumption that there had been a divorce obtained by either of them dissolving their marriage relation: Wiles’s Estate, 6 Pa. Superior Ct. 435. This presumption also disappears in the face of the proof that no divorce was in fact obtained by either Charles A. Eastman or claimant.

Prior to entering into the contract of marriage in the State of New York by claimant and decedent, they attempted to contract marriage in the State of Pennsylvania, but were unable to do so because there was no divorce and they had no proof of Charles A. Eastman’s death. For the express purpose of contracting a marriage and circumventing the laws of the State of their domicile, they went into the State of New York, contracted a marriage which they knew was against the laws and public policy of the State of Pennsylvania, and returned to their home for the purpose of living there as man and wife, all the time being residents and subjects of the State of Pennsylvania and subject to no duty in the State of New York. Did they contract a marriage that is valid and recognizable in the State of Pennsylvania? The general rule is that the validity of a contract will be judged by the laws of the state where it is intended to be performed: York Co. v. Cyclops Co., 280 Pa. 585. On this well-known principle alone the laws of Pennsylvania, and not the laws of New York, must determine the validity of this marriage contract. There is a more substantial reason. The general rule is that a marriage, valid where solemnized, is valid in every jurisdiction, but to this rule there are exceptions. No state can allow its domiciled subjects, by a temporary visit into a foreign jurisdiction, to enter into a contract to be executed and performed in the state of their domicile, if the contract is prohibited by its laws as against good morals or a sound public policy. If a marriage is forbidden in the State of Pennsylvania as against good morals or as leading to a social evil, its subjects may not cross the State line, contract such a marriage and immediately return to perform the contract within the bounds of the State and insist upon its being recognized. They may not in this manner import into the State of Pennsylvania the laws of another state.

It is a well-settled rule of the State of Pennsylvania that where its subjects, forbidden from entering into a marriage contract on the ground that it would be against good morals, go into an adjoining state that does not forbid such a marriage for the express purpose of contracting such marriage and immediately returning to live as man and wife by virtue thereof, in defiance of the laws of this State, the marriage will not be recognized as valid and will not confer upon them the duties of husband and wife or entitle them to such rights: Stull’s Estate, 183 Pa. 625.

Claimant’s marriage to decedent was forbidden by the laws of Pennsylvania because she then had a husband in full life. Claimant was forbiddén to cohabit as husband and wife with any man except her lawful husband. Both her marriage to decedent and her residing with him as his wife were prohibited as against good morals and public policy. She can, therefore, not bé permitted to cross the State line, contract such a marriage and claim the rights of wife thereunder. She was under an absolute disability to so contract or to so live in the State of Pennsylvania, and she may not evade its laws by going into a state that allows such marriage and such living and immediately return for the purpose of living in the State of Pennsylvania under laws imported from another state for her sole benefit.

Claimant and decedent both evidently believed that they could so circumvent and violate the laws of Pennsylvania, but such belief does not impute validity to their act or obligation upon the State to recognize their contract. Had the contract of marriage been in Pennsylvania instead of New York, it would have been absolutely void: Com. v. White, 22 Pa. Superior Ct. 68; Hoffner v. Hoffner, 28 Pa. 104. Their going into the State of New York for the express purpose of marriage does not impute legality. The marriage and cohabitation must be judged by the laws of the State of Pennsylvania and declared null and void. When claimant contracted the marriage with decedent in the State of New York, she was not acting under a well-founded belief that Charles A. Eastman, her husband, was dead. If she had been, that fact would relieve her from the penalty of her act, but would not make her marriage to decedent valid: Thomas v. Thomas, 124 Pa. 646. A second marriage is forbidden while the first is in full force because it is immoral and bigamous, but the penalty is not imposed where the second marriage was contracted in good faith and upon a well-founded belief that the first marriage had been dissolved by death. The good faith and the well-founded belief, while it relieves from the imposition of a penalty, in no way validates the marriage.

Claimant’s disability to marry the decedent disappeared with the death of Charles A. Eastman, Nov. 8, 1903. She continued to cohabit with decedent as husband and wife until his death, a period of approximately twenty-three years. During this time she was reputed to be his wife; so declared by the decedent, so known by their families, their neighbors and friends. From this, claimant contends that if her marriage in the State of New York was invalid in the State of Pennsylvania, she was decedent’s common-law wife. Her cohabitation with decedent, together with the fact that they were reputed as man and wife, raises a presumption of marriage entered into between claimant and decedent some time after the death of Charles A. Eastman on Nov. 8, 1903 (Thewlis’s Estate, 217 Pa. 307), but this is only a presumption, and, like all other presumptions, must yield to contrary evidence: McDevitt’s Estate, 280 Pa. 50. There can be no valid marriage without a marriage contract, either ceremonial or by mutual consent. There must be some contract of marriage, an agreement actually entered into, to be from that time husband and wife. Cohabitation and reputation is not marriage. It is simply evidence of a marriage contract, and may be overcome by evidence that no marriage contract was in fact entered into: Bisbing’s Estate, 266 Pa. 529; Edwards v. Manufacturing Co., 283 Pa. 420; McDevitt’s Estate, 280 Pa. 50.

The evidence in this case would establish the fact, by cohabitation and reputation, that claimant and decedent were married in some legal way at some time after her disability disappeared on Nov. 8, 1903, but the effect of this testimony is overcome by her own testimony. She testifies positively and explicitly that no other contract of marriage of any kind whatever was ever entered into between her and the decedent other than the one contracted in the State of New York; that that is the only contract she relies upon, and that becoming husband and wife was never mentioned after the ceremony was had in New York State. A contract of marriage may be shown by reputation and cohabitation (Richard v. Brehm, 73 Pa. 140; Strauss’s Estate, 168 Pa. 561), but as this result is reached by way of presumption, a different result must be reached when the presumption is overthrown by express testimony.

When claimant and decedent contracted the marriage in the State of New York, Aug. 18, 1898, it was invalid and void because claimant had a husband in full life from whom she was not divorced. When he died, on Oct. 8, 1903, her disability to marry disappeared, but that did not validate an illegal marriage theretofore contracted. The relationship that she maintained with decedent to that time was illegal, and the presumption is that it continued illegal until decedent’s death. This presumption, however, is overcome by the stronger presumption that a valid marriage contract was entered into after the death of Charles A. Eastman. A long cohabitation and reputation raises this presumption, but this presumption of legal contract of marriage after the death of Charles A. Eastman is overcome by claimant’s positive and unqualified testimony that there never was a contract of marriage of any kind whatever entered into between claimant and decedent after that date. The law will not presume a common-law marriage in the face of such testimony. A common-law marriage is not a magical thing. It is but an agreement entered into between the parties to become husband and wife. No common-law marriage exists without an agreement, but in the absence of proof to the contrary, such an agreement will be presumed from cohabitation and reputation. A marriage is either a ceremonial marriage or common-law marriage, and in either event must be founded upon a contract. The contract will be presumed from cohabitation and reputation, if there is no evidence to the contrary, but will not be presumed where it is proven by testimony that must be credited that no marriage contract was in fact entered into. Claimant is bound by her own testimony, and the presumption that she invokes cannot prevail against it. She has conclusively established the fact that the only contract of marriage that she ever entered into with decedent was the one entered into in the State of New York. That did not constitute her the lawful wife of the decedent, and her claim for the widow’s interest in his estate must be rejected.

Order of court.

Now, July 22, 1927, the exceptions to the widow’s appraisement are sustained and the appraisement vacated and set aside. To which order an exception is noted for claimant.

Prom Thomas H. Greer, Butler, Pa.


author: Newcomb, P. J.

text:
    Farr v. Peoples Coal Company et al.

      Practice — Non pros. — Delay after suit started — Laches—Disappearance of witnesses.

    Where plaintiff does nothing for almost seven years after his statement of claim in trespass has been filed, defendant’s motion to have the suit dismissed for want of due prosecution will be granted, where the petition alleges that some necessary witnesses have disappeared and the personal recollection of others has so far failed that defendant: will be prejudiced in making his defence, and plaintiff fails to show reasonable excuse for the delay.
    Motion for judgment of non pros. C. P. Lackawanna Co., Nov. T., 1918, No. 39.

      P. V. Mattes, for plaintiff; R. W. Rymer and D. R. Reese, for defendant.
   Newcomb, P. J.

Sept. 28, 1918, summons in trespass duly served and returned. Nov. 14, 1919, plaintiff’s statement filed. From that day ever since the suit has lain dormant. Hence, this motion to dismiss for want of due prosecution. The petition is that oí the Delaware, Lackawanna & Western Railroad Company, one of the two defendants, which alleges that, in the meantime, some of the necessary witnesses have disappeared and that in case of others their personal recollection has so far failed that petitioner — the only solvent defendant — would be greatly prejudiced in and about making the defence to which it is justly entitled.

This is not at all unlikely, in view of the fact that the injury complained of, if any, must have occurred between 1912 and 1918. Plaintiff necessarily has the burden of accounting for his long delay on grounds which fairly relieve him from the imputation of laches. This he has undertaken to do by formal answer.

He says he had reasonable grounds for his personal delay in and about moving the case for trial, and “to leave the initiative for so doing to defendant if it deemed itself prejudiced by delay.”

This may have been very considerate. His forbearance, however, having been quite unsolicited, must be charged to his own account, not that of defendant. The suggestion only serves to convict plaintiff of deliberate procrastination. Next, it is said that, owing to the congestion of the trial list for the first two years, he was excused for his failure to move in the matter.

If the first reason could be taken seriously, the second — though sound— could be dispensed with. If it were the reasonable thing for plaintiff to accord defendant “the initiative,” he needs no other excuse.

But, waiving that, he has contented himself with a general assumption without any information on the subject of the trial list. Por the sake of discussion, it may be conceded that it might have some bearing on the question at issue if the fact were made to appear that during the first two years of its pendency it would have been fruitless to order the case for trial. It does not so appear; and, what is more, it could not be so made to appear.

Finally, plaintiff refers to the nature of his claim and goes on to say that from 1921 there were repeated legislative attempts to create a fund by taxation for the relief of claimants of his class whose surface property had suffered a subsidence occasioned by coal mining operations in this city.

Had one or other of these attempts turned out as their advocates had anticipated, he says he could have resorted to that fund, thus releasing defendant from any demand in the premises.

In that regard plaintiff’s expectations were eventually disappointed. But, says he, it was of such character that, so long as the hope could be entertained, the “presumption of laches in analogy to the statute of limitations was tolled, there being a just and reasonable excuse for not proceeding to trial during all of said interval.”

This proposition is somewhat radical. So far as can be discovered, it rests solely upon the authority of this pleader. One may be pardoned if he cannot resist the impression that it calls for some corroboration before it could be held that plaintiff was at liberty to speculate from year to year on the chance of redress from some other source without incurring the imputation of laches in this proceeding.

The grounds set up in his answer may have the distinction of originality, but other merit they have none.

The motion is allowed, the rule to show cause made absolute, and thereupon judgment of non pros, is entered as prayed for.

From William A. Wilcox, Scranton, Pa.


author: Henderson, J.,

text:
    Jacobs’s Estate.

      Wills — Probate—Undue influence — Testamentary capacity — Devisavit vel non — Solicitations.
    1. The fact that a residuary legatee sought financial assistance in letters addressed to testatrix is unimportant as showing undue influence; and especially is this so if he did not solicit decedent to make a will in his favor.
    2. Mere peculiarities of mind, eccentricities, religious enthusiasm or general hobbies are not sufficient to avoid a will.
    3. The fact that a testatrix chose ,to make a will in favor of friends in whom she was deeply interested, to the exclusion of a sister and other relations, does not render her will invalid.
    4. under the testimony in this case, the court found that the contestant had failed to establish testamentary incapacity or undue influence.
    Exceptions to decree dismissing appeal from register. 0. C. Phila. Co., Oct. T., 1926, No. 3235.
    Steaene, J., Auditing Judge. — This is an appeal from the decision of the register of wills admitting to probate a certain paper writing, dated June 18, 1926, as the last will and testament of the decedent.
    The estate consists, according to the petition for letters, of personal property to the value of $6000 and no real estate.
    The will in question gives the entire estate unto two individuals, strangers in blood. Contestant is a sister. The allegations in the petition are that decedent left the following heirs and next of kin: Petitioner (sister of decedent), three children, being nephews and nieces (children of a deceased brother) and a niece (daughter of another deceased brother), all of whom, by citation, were made parties to these proceedings.
    The petition charges that, at the time of the execution of the will, decedent was in such a condition of mind and health, because of her age, sickness and infirmity, that she was incapable of intelligently disposing of her estate, and that the will was procured by undue influence practiced upon her by Platt D. Smith and Mack G. Britton, the two persons named as residuary legatees. An issue is asked to try the following questions of fact: First, whether or not, at the time of the execution of the said writing, decedent was a person of sound mind; second, whether or not the said writing was procured by the use of undue influence practiced upon the decedent by said Platt D. Smith and Mack G. Britton; and, third, whether or not the said writing is the proper will of the said decedent. Answers were filed by the executrix mentioned in the will and by the two residuary legatees, denying all material allegations of the petition. A replication was filed and a hearing was duly had before me on Oct. 24 and 26, 1927.
    At the conclusion of the testimony, counsel for contestant withdrew the contest as to Platt D. Smith, but insisted upon pressing the contest against Mack G. Britton. As the facts of the case are so intertwined about both of these individuals, it is impossible to determine the issue without a consideration of the entire testimony.
    Mary F. Jacobs, the decedent, was a widow, and, according to contestant, who was her sister, she was eighty-one years of age at the time of her decease. It appears that she was of Quaker stock and was extremely careful and frugal with respect to financial matters. The income from her very small investments was her sole support; to produce the highest income, the principal required skillful and careful handling, and in this she was ably assisted by a Mr. John Murray, who was a nephew by marriage. Mr. Murray made her investments wisely, which enabled the decedent to obtain the greatest possible benefit from its use; she lived in Philadelphia in a rooming-house, where she attended to her affairs down to the date of her last illness; so careful of money was she that, in the opinion of the keepers of the rooming-house,' decedent frequently failed to adequately supply herself with sufficient nourishing food; her personal habits, however, were clean and orderly, and, down almost to the date of her death, decedent assisted the mistress of the rooming-house in housekeeping matters, such as making the beds, and the performance of other household duties; she was a woman of very strong will and had decided ideas of her own.
    The contestant lived at Columbia, Pennsylvania, and on occasions the decedent would visit her sister, but these visits ceased for some years before her death because of matters hereinafter referred to.
    The decedent was most religiously inclined. Her chief pleasure appeared to be in her attention to church matters, revolving about the Centennary Methodist Church, at 41st and Spring Garden Streets, Philadelphia She attended church services and prayer meetings regularly and generally was very active in church matters to the time of her decease.
    About nine years prior to her death, the decedent met a, Mrs. Blanche Hess, who was interested in an organization known as the Home Service League, which apparently was organized for the purpose of conducting meetings at various homes for religious and moral instruction to sailors and marines in the United States service. A Mr. Charles Butler was then the leader of the league and brought service men to the different homes for this purpose. Decedent became very vitally interested in this work, and her interest was well known to all of her relatives and acquaintances. Prom the testimony it clearly appears that she assumed the duty of “mothering” these young men and of looking after and advising them concerning their personal and private affairs. ■ As time went on, her affections seemed to centre upon one of the boys by the name of Virgil Aurand, and subsequently upon Platt D. Smith (one of the residuary legatees herein). Apparently, Virgil Aurand disappointed the decedent, in that he borrowed $500 from her, which he failed to repay. This annoyed and disturbed the decedent exceedingly. There was evidence she had written numerous letters to Aurand protesting against his lack of consideration, because he was well aware of her meagre financial situation, and that, after receiving the loan, he had apparently lost all interest in and contact with the decedent. It is shown that she prayed for him, and, at one time at least, expressed a wish that he should be punished for the wrong which he had done her and for the abuse of her confidence. Among the service men, decedent was known as “Mother Jacobs.” Her reputation as one sincerely interested in the welfare of sailors and service men was known in many parts of the country. In January, 1917, Platt D. Smith, a master mechanic in the Navy, stationed at Boston, Mass., met the Mr. Butler here-inbefore referred to at the Y. M. C. A. in Boston. When Butler learned that Smith was coming to Philadelphia, he advised him to become acquainted with “Mother Jacobs;” when Smith came to Philadelphia, he attended a meeting of the Home Service League at the home of a Miss Rankin in West Philadelphia, where there were about eighteen other service men present. At this meeting, for the first time, he met the decedent; he acquainted her with the recommendation of Mr. Butler, and after that meeting the acquaintanceship ripened into a sincere attachment of both parties. Decedent came to assume the attitude of a mother towards Smith; Smith brought his fiancee to meet the decedent, who advised them concerning such matters as securing a home and for the future planning of Smith’s life-work, his education and self-advancement. Very many letters were written between them, all of the most intimate and affectionate nature, and were such letters that might well pass between a mother and her own son. This close and intimate relationship was recognized by all of decedent’s friends, and even by the contestant herself; that it was recognized by others closely associated with her is shown by the fact that when the decedent was in the extremity of her last illness, at the home of John Murray, Murray telegraphed to Smith to come at once to his home; Smith came from Massachusetts to Philadelphia, where he was met and taken by Murray to his home at Collingswood, New Jersey, at which place the decedent subsequently died; Smith was a guest at this house until after the death and funeral. From the testimony, it is shown that the decedent had told Smith that he was mentioned in her will as sole beneficiary. It appeared that, on Feb. 24, 1923, decedent had executed a will at the West Philadelphia Title and Trust Company, naming Platt D. Smith as sole residuary legatee; this fact apparently was known to certain of decedent’s relatives and friends. There is no testimony showing that Smith in any manner whatsoever induced or even suggested that the decedent make him a beneficiary under her will. He testified he knew nothing about the execution of the present will.
    The other residuary legatee, Mack G. Britton, formerly a wireless operator in the United States Navy, first met the decedent in December, 1924, at a meeting of the Home Service League at the home of Mrs. Hess, hereinbefore referred to. Following this meeting, a close and intimate friendship ensued. However, Britton left for Europe on June 13, 1925, but corresponded with the decedent frequently from that time to the date of her death. Britton testified he knew nothing whatever about her financial affairs, and that' the first intimation (page 83) he had ever had that decedent had drawn a will was in May of 1926, when he was abroad in the United States service. This notification consisted of a copy of the citation served upon him under order of this court; this was the first time that he ever knew that the decedent had left a will and that he, Britton, was beneficially interested.
    ■ Great stress is laid by the contestant upon letters written by Britton to the decedent. It is claimed that it is clearly apparent from the wording of the said letters that they were written designedly and with intent to ingratiate himself into decedent’s affections, and thus unduly influence her in the making of her will. I have read these letters most carefully and find that certainly no such result can be fairly inferred therefrom. There is no other testimony than the letters themselves to sustain a charge of undue influence on the part of Britton. In my opinion, it is wholly insufficient to support such an allegation.
    While perhaps the letters were unusual, nevertheless, they may be fairly interpreted as letters one might naturally expect, under all the facts and circumstances. Decedent was acting as a mother toward him, and he found comfort in her interest and affection. Nothing beyond this can be fairly attributed to them.
    The present will, the basis of the contest, was typewritten by Ida M. Hudson, the executrix named therein. Mrs. Hudson testified that it was written at the request of decedent; that the decedent had told her that she had requested the West Philadelphia Title and Trust Company to return to her the will of 1923, but that instead of doing so, the trust company had merely given her a carbon copy thereof; the decedent was dissatisfied and did not wish to again go back to the trust company. Decedent took the carbon copy (which was offered in evidence) and crossed out and redrafted the same, and signed a corrected copy thereof, wherein she directed that her residuary estate should be divided between Platt D. Smith and Mack G. Britton. The witness testified that she had typewritten the new will from the carbon copy of the old will as corrected, and, after the instrument was completed, returned it to the decedent in her bedroom and left it with her. When the question of witnesses arose, Mrs. Hudson suggested that the decedent call upon her pastor or some one in the church for such purpose. The decedent asked Mrs. Hudson if she would not come back in a few days, and when Mrs. Hudson did come back, the decedent said (page 98), “I have had Mr. and Mrs. Ward as witnesses to my will.” Mrs. Hudson said that the will had then been given to her, and that she had kept it until decedent’s death. Mr. and Mrs. Ward testified that they had witnessed a paper, which they now say they did not know was a will. I observe, however, that before the Register of Wills both of them qualified as witnesses to the will, and swore that at the time of the execution they believed the decedent to be of sound and disposing mind, memory and understanding. The credibility of Mrs. Hudson was attacked because her husband had been a creditor of decedent, and that his estate and Mrs. Hudson had been a creditor of decedent, and that his estate and Mrs. Hudson had both been exonerated of the debt by the decedent. However, I do not think that the circumstances surrounding this matter affect the question in issue. Mrs. Hudson was a close personal friend of the decedent and told many things concerning decedent’s family relationship. The contestant feels that the decedent was unduly influenced in the making of this will to her detriment. Unfortunately for the contestant, the incident testified to by Mrs. Hudson, and subsequently corroborated by the contestant and her daughter themselves, clearly demonstrated the friction which existed between the decedent and the contestant. It appears that in 1921 the decedent visited the contestant and remained with her for some twenty-one or twenty-two weeks at her home at Columbia, Pennsylvania. While there, contestant noticed that the decedent was greatly disturbed about the actions of Virgil Aurand, hereinbefore referred to, and that late at night she heard decedent praying, and also said that she was constantly writing letters to Aurand. The daughter of contestant, a Mrs. Meta Stamer, took a very active interest in the affairs of her aunt, and advised her mother, the contestant, as to what she should do. Mrs. Stamer, without any justification, secured possession of two letters, written and addressed to Virgil Aurand by the decedent, and kept them; decedent was in great mental anguish because she had not received any answer to the letters; both of these letters contestant and her daughter strongly disapproved, and they have been offered in evidence to show the mental state of the decedent and her susceptibility to undue influence. When the decedent subsequently learned that the letters were intercepted, it caused a family disturbance, and the decedent never again visited her sister. It is also to be noted that Mrs. Stamer, to further bolster up a possible will contest, interviewed decedent’s doctor in order to ascertain whether or not, in his opinion, the decedent was of sound mind. Such actions naturally caused hard feelings between the decedent and the contestant,' and, in my opinion, counts in large measure for the absence of a more cordial relationship between them. It is also to be noted that the contestant borrowed certain moneys from the decedent, secured by mortgage, on which she has been regularly paying the interest. It has not been shown that there was any close family relationship between the decedent and any other of her relatives, except Mr. Murray, hereinbefore referred to. Unquestionably Mr. Murray (a man of very high type, who impressed me very much) was most disinterested in looking after the decedent’s business affairs and did much to make her comfortable and happy. He testified in a very straightforward manner, but was well aware of the attachment of the decedent to Mr. Smith. This witness telegraphed to Mr. Smith and entertained him. He testified (page 37) : “I think she loved Platt Smith as a woman would love her own son.” Mrs. Price, the mother-in-law of Mr. Murray, testified (page 38) that she knew of the interest of the decedent in her “boys,” and was quite willing for the boys to visit the decedent while she was at Mrs. Price’s house. Mrs. Murray, the wife of John Murray, stated that decedent seemed to be normal in everything except for her great fondness for sailor boys. Dr. Blackburn, the attending physician, testified that the cause of death of the decedent was due to a form of cancer on her right thigh. He testified that she discussed business matters with him and seemed normal in every respect, except what he thought was “a peculiar turn of mind” and that it “related to religion, and latterly to sailors.” The doctor would not say that she was insane, but that he felt that she was unduly depriving herself of real necessities to give to the church and to do for the church, but that “she knew perfectly well what she was doing at all times.”
    Mrs. Hess testified as to decedent’s interest in the Home Service League and that the decedent was a normal woman, in full possession of her faculties. Miss Anna R. Campbell testified as to the execution of the first will, as did Miss Emma Johns; Anna L. Cault testified concerning the service which decedent rendered as collector of the Home Missionary Society of the church, of which the witness was treasurer. The witness said that all of decedent’s accounts were accurately and carefully kept, and that she' was a woman of sound and even strong mind. Mrs. Sallie M. James testified concerning the interest of the decedent in the church and in the Home Service League, and that, in her opinion, the testatrix was of sound, disposing mind, memory and understanding. Mrs. Shellmeyer testified that, in her opinion, the decedent was of sound mind. She said “she was very clear in her thinking — probably unusually religious, but to her that was her life. But her thinking was very clear as long as I saw her or whenever I talked to her.” The witness said that the decedent was unusually interested in current topics and talked about the affairs of the world in general and that she read a great deal. “We had many interesting conversations. At the time I came home from college, when I thought I knew a great deal, I used to love to get into arguments with her.” There was considerable evidence given relative to business relations of the decedent, which invariably demonstrated that the decedent was fully aware of the nature thereof and as to her ability to properly take care of her own affairs.
    To constitute undue influence, there must be imprisonment of body or mind, fraud, threats, misrepresentations, inordinate flattery or physical or moral coercion to such a degree as to prejudice the mind of testator and destroy his free agency and operate as a present restraint upon him in the making of the will: Phillips’s Estate, 244 Pa. 35.
    There must be present the power and will of another which so controls the mind of testator that he is unable to decide for himself, but submits to the desires of the former: Smith’s Estate, 250 Pa. 67. See Tetlow’s Estate, 269 Pa. 486; Goss’s Estate, 274 Pa. 278.
    That Britton in his lifetime may have sought financial aid in his letters seems unimportant. Certainly he did not solicit decedent to make a will in his favor. It is held (Englert v. Englert, 198 Pa. 326) that even importunate solicitation is permissible in the absence of fraud, deceit or such domination -as subjugates the mind of the decedent. See Leisey’s Estate, 280 Pa. 533; Buechley’s Estate, 278 Pa. 227.

      Respecting testamentary capacity, contestant admits that the decedent had a sound mind in everything except as to religion and her interest in sailor welfare. As to these, it is charged that her interest was so great as to deprive her of a free and deliberative testamentary capacity.
    It seems well settled that mere peculiarities of mind, eccentricities, religious enthusiasm or general hobbies were not sufficient to avoid a will: Smith’s Estate, 250 Pa. 67; Tetlow's Estate, supra; Goss’s Estate, supra.

    As to the measure of testamentary capacity necessary to make a will, see Snyder’s Estate, 279 Pa. 63.
    Because the decedent chose to make a will in favor of friends in whom she was deeply interested, to the exclusion of her sister and other relatives, does not render the will invalid. As was said in the case of Guarantee Trust Co. V- Heidenreich, 290 Pa. 249, at page 257, “a will cannot be successfully challenged because it fails to make distribution according to the intestate laws; in fact, its main object is to withdraw the estate therefrom. It is the duty of the court to protect a citizen’s right to dispose of his own property, although he may seem to do so unjustly.”
    Under all the facts ahd authorities above enumerated, I have reached the conclusion, and so find, that the contestant has failed to establish testamentary incapacity on the part of the decedent, and has not shown that the said will was obtained by any undue influence. As a chancellor, I find that the evidence as submitted by the contestant would not support a verdict of a jury, even if found in her favor.
    I am, therefore, of opinion that no issue should be awarded, and I enter the following

      Decree.

    And now, to wit, Nov. 11, 1927, the appeal is dismissed at the cost of appellant, and the action of the register upheld, and the record is remitted to the register.

      J. A. Keough, for exceptions; William H. Peace, contra.
    Dec. 30, 1927.
   Henderson, J.,

A careful examination of this record and of the briefs of counsel convinces us that the judge presiding upon this appeal from the register has correctly disposed of the same, and for the reasons given by him.

The exceptions are dismissed and the decree nisi is confirmed absolutely.


author: Wagner, Dep. Att’y-Gen.,

text:
    Standard Workmen’s Compensation Insurance Endorsement.

      Workmen’s compensation insurance — Endorsement as to liability in standard policy — Act of May 17, 1921.

    Under sections 651 and 653 of the Insurance Company Act 'of May 17, 1921, P. L. 682, requiring policies of insurance under the Workmen’s Compensation Acts to cover all amounts for which the insured employer may become liable under the acts, it is proper to require all policies to bear an endorsement to that effect, such as is found in paragraph 2 of the Standard Workmen’s Compensation Endorsement.
    Department of Justice. Opinion to Colonel Matthew H. Taggart, Insurance Commissioner.
    July 7, 1927.
   Wagner, Dep. Att’y-Gen.,

I beg to acknowledge receipt of your letter of June 30th, requesting that you be advised whether paragraph 2 of the Standard Pennsylvania Workmen’s Compensation Endorsement, which is required to be attached to all policies of insurance issued against liability under the Workmen’s Compensation Act of Pennsylvania, is authorized under the provisions of sections 651 and 653 of the Insurance Company Law of 1921 (Act of May 17, 1921, P. L. 682).

Paragraph 2 of the Standard Pennsylvania Workmen’s Compensation ■Endorsement, referred to above, is as follows:

“The insuring company hereby assumes the whole liability of the insured employer under the Workmen’s Compensation Act of Pennsylvania, 1915, as amended, and all laws amendatory thereof which may be or become effective while this policy is in force, without any exception, qualification or limitation.
“The insuring company agrees to pay, in the manner provided by the said Workmen’s Compensation Act, all benefits due or to become due from the .insured employer, including all funeral expenses, surgical, medical and hospital services, medicines and supplies, for which the insured employer may be or become liable under said act. This agreement shall constitute a direct promise to the injured employee and to dependents of injured employees, enforceable by action brought in the name of such injured employee or such dependents. As between the employee or his dependents and the insuring company, the notice to or knowledge of the occurrence of an injury on the part of the insured employer shall be deemed notice or knowledge on the part of the insuring company.”

Sections 651 and 653 of the Insurance Company Law of 1921 are as follows:

“Section 651. Policy Provisions. Every policy of insurance against liability under ‘The Workmen’s Compensation Act of nineteen hundred and fifteen,' and acts amendatory thereof, shall contain the agreement of the insurer to pay all compensation and provide all medical, surgical and hospital attendance for which the insured employer may become liable under the act during the term of such insurance, and the further agreement that, as between the insurer and any claimant under the act, notice to the employer or the employer’s knowledge of an accident or injury constituting the basis of a claim under the act shall be notice to and knowledge of the insurer. Such agreements shall be construed to be a direct promise to the injured employee or to the dependents of a deceased employee having a claim under the act, and shall be enforceable by action brought in the name of such injured employee or in the name of such dependents. Such obligation shall not be affected by any default of the insured, after the accident, in the payment of premiums or in the giving of any notices required by such policy or otherwise.”
“Section 653. Prohibited Policy Provisions. No policy of insurance against liability under ‘The Workmen’s Compensation Act of nineteen hundred and fifteen,’ or acts amendatory thereof, shall contain any limitation of the liability of the insurer to an amount less than that for which .the insured employer may become liable under the act during the term of such insurance. No such policy or contract of insurance, nor any agreement to deliver such insurance, shall be issued except upon a form approved by the Insurance Commissioner as complying with all the terms and provisions of this act. But a policy may be issued to a self-insurer, qualified under section three hundred and five of article three of ‘The Workmen’s Compensation Act of nineteen hundred and fifteen,’ or acts amendatory thereof, providing for the payment of any stated loss in excess of ten thousand dollars falling upon such self-insurer, under the terms of the said act, by reason of any single accident.”

In my opinion, sections 651 and 653, quoted above, clearly require that all policies of insurance against liability under the Workmen’s Compensation Act of 1915 shall cover all amounts for which the insured employer may become liable under the act during the term of such insurance. The insurer is prohibited from limiting its liability to an amount less than that for which the insured employer may become liable under the act. The agreement of the insurer that it shall be liable for all amounts for which the insured employer may become liable can properly be secured only by the requirement that each policy issued to an insured employer shall cover the entire liability of the employer. I find no other method of complying with the above sections.

Paragraph 2 of the Standard Endorsement, quoted above, is strictly in accordance with the above sections 651 and 653, and your department is authorized to require an endorsement similar to paragraph 2 upon all policies insuring the liability of employers under the Workmen’s Compensation Act.

Prom C. P. Addams, Harrisburg, Pa.