text:
    Barner v. Barner.

      Practice — Divorce—Amendment of libel — Allowance by master.

    1. A master appointed by the court to hear testimony in divorce and report his findings, etc., has no authority to permit an amendment of the libel where a variance between the allegata and protata developed in the course of the taking of testimony. The proper procedure would have been to petition the court for leave to amend.

      Divorce — Desertion—Wilful and malicious — Failure to seek reconciliation.

    2. A desertion which is shown to have been without legal cause, and which has continued for more than two years, may be presumed to be wilful and malicious.
    3. Evidence of failure on the part of the party injured to seek a reconciliation does not establish a consent to separation.
    Divorce. Exceptions to report of master. C. P. Dauphin Co., Sept. T., 1920, No. 105.

      W. Justin Carter, for libellant; Beidleman & Hull, for respondent.
    Dec. 1, 1921.
   Fox, J.,

This case arises upon exceptions to the master’s report in divorce.

The libel was presented to the court on Sept. 29, 1920, and a subpoena was awarded returnable on Sept. 27, 1920. The libel charged that on Aug. 9,1918, the respondent “hath wilfully and maliciously deserted and absented herself from the home and habitation of the petitioner without any just or reasonable cause, and such desertion hath persisted in from thence hitherto, and still absents herself as aforesaid.” Service, of the subpoena was made upon the respondent, and upon motion a master was appointed by the court, and after due notice of the hearing, testimony was taken on the part of the libellant, the respondent not appearing.

The testimony shows that the marriage of the libellant and respondent took place on Dec. 25, 1899, and not on March 12, 1914, as alleged in the libel. It also shows that the desertion took place on Feb. 24, 1919, and not on Aug. 19, 1918. Counsel for the libellant offered at the time of the taking of the testimony to amend the libel in both these respects, and requested the master to permit the same to be amended accordingly. The master refused to permit the amendments on the ground that he had no authority so to do, and on Oct. 20, 1921, made his report to the court, in which he found that he had no power to permit the amendment, and also that the libellant was not entitled to a divorce on the ground of the alleged desertion.

The allegata and the probata do not agree. The libel should have been amended by stating the correct date as disclosed by the testimony of the marriage, and also that of the desertion. There would have been no difficulty in making this amendment, and the proper course would have been to petition the court for leave to amend. The master was right in not allowing the amendment.

We are not in accord with the conclusion of the master that a ease of wilful and malicious desertion as required by the statute has not been made out by the libellant. It is held that: “The charge being a wilful and malicious desertion and absence from the habitation of the other without reasonable cause for and during the term and space of two years. The applicant for a divorce on such a ground must establish with sufficient certainty every and each of these ingredients as elements necessary to constitute desertion within the meaning of the act. They must all co-exist in proof or no decree can be granted. Courts ought never to sever the marriage contract, but where the application is made in sincerity and truth for the causes set forth, and no other, and fully sustained in the testimony:” Smith v. Smith, 15 Pa. Superior Ct. 366, and cases there cited. In Whelan v. Whelan, 183 Pa. 293, the court, amongst other things, said: “In Van Dyke v. Van Dyke, 135 Pa. 459, we held that a desertion which is without consent and without sufficient legal cause is presumed to be wilful and malicious, and if persisted in for two years or more, it will entitle the injured party to a decree of divorce.”

We have examined the whole of this testimony carefully and think that the letter offered in evidence as Exhibit “G” of the respondent to the libellant, dated Feb. 24, 1919', clearly shows a desertion on the part of the respondent without sufficient legal cause, and that it was wilful and malicious. Other testimony was taken clearly showing the cruel and barbarous treatment of the respondent towards the libellant prior to the date of the letter, and it is admissible only for the purpose of showing the intent and purpose of respondent in writing the letter and the wilful and malicious conduct of the respondent in connection therewith, and also as casting light upon the libellant’s subsequent conduct.

The question as to whether the libellant consented to this desertion is considered by the master. He finds that there is evidence of collusion, as shown by the letter of the wife; he also finds that the libellant never went back to the wife; never exerted his right to return to the home where she remained; that he took no step toward a reconciliation. The latter is true, and even though he did none of these things, it is to be remembered that he was the party injured and not the one who committed the wrong. We do not think this proves collusion or consent. In the case of Burkey v. Burkey, 8 Berks Co. L. J. 151, 25 Dist. R. 982, where the master recommended a decree adverse to the libellant, and the latter excepted to the court, Judge Endlich, reversing the master, said, amongst other things: “If the libellant has taken no steps toward reconciliation, it is to be remembered that he is the party injured, not the one who committed the wrong. It was the respondent who began the separation, and it was for her to offer to return;” and in this case the evidence shows a purpose on the part of the respondent to discontinue marital relations, which she did in no uncertain terms, and having previously treated the libellant in a cruel and barbarous way, he may have been justified in not returning to the home which she claimed as her own, and to which she refused him admission even if he should return, and because he did not return and seek a reconciliation, does not derogate from or qualify the facts as shown by the testimony. We do not think that the evidence discloses such a consent on his part as would make this a separation only. We think it sufficient to sustain a finding of desertion as required by the statute, but, as we said above, the allegata and probata do not agree and the libel should be amended.

The case will be continued with leave to the libellant to move to have the libel amended so that the allegata and probata will agree, and upon such amendment being properly made, and upon motion of counsel, a reference back to the master will be made for the purpose of taking additional testimony, if desired, and making further report thereon.

Prom William Jenkins Wilcox, Harrisburg, Pa.


source: Caselaw Access Project

author: PRATHER, P. J.,

license: Public Domain

text:
    Crist v. Director General of Railroads.

      Practice, C. P. — Rule for new trial — Depositions—Non-suil—Negligence.
    1. A rule for a new trial on account of after-discovered evidence may be engrafted on a motion to take oft an order of compulsory non-suit.
    2. In such case the court may, in its discretion, hear or reject depositions filed in support of a new trial.

      Negligence — Railroads — Walking longitudinally on tracks — Evidence— Non-suit — Contributory negligence.

    3. In an action against a railroad company to recover damages for death of plaintiff’s husband, killed at night on defendant’s tracks without any one having seen the accident, where plaintiff claims that the accident happened at a street crossing, a non-suit will not be taken off where the evidence at the trial, and depositions taken thereafter, show that the body was found on the tracks south of the crossing, but that blood was found immediately after the accident on the tracks north of the crossing, indicating that the deceased was walking on the tracks at a point north of the crossing when killed.
    Motion to take off compulsory non-suit, and rule for new trial. C. P. Crawford Co., Sept. T., 1919, No. 59.

      Arthur L. Bates, for plaintiff; George F. Davenport, for defendant.
    July 5, 1921.
   PRATHER, P. J.,

Plaintiff’s husband was killed on the tracks of the defendant company Jan. 9, 1918, at about 9 o’clock P. M., at or near a grade crossing, the intersection of Poplar Street -with defendant’s tracks, by an engine backing down southwardly.

The facts presented at the trial touching decedent’s employment and whereabouts on this evening immediately prior to the accident, and the probable course of travel to his home, are substantially these:

Decedent was an engineer on defendant’s railroad, and lived in the village of Kerrtown, somewhat southward of the City of Meadville. On the evening in question he was at the Moose Club, in Meadville, for some two and one-half hours, and up to “pretty close to 9 o’clock.” His wife had notified him during this period by telephone that he was called out on his run, and he left the Moose Club presumably to go to his home. So far as the testimony went, nobody knew what route he took to go home, and no one saw him after he left the Moose Club until about 10 P. M., when his mutilated and dismembered body was found south of Poplar Street on the railroad tracks.

Depositions were taken on the rule for a new trial, and a map of the city was offered in evidence before the commissioner.

From the testimony offered at the trial and from the map before us, it appears that the railroad tracks of the defendant on the west, Water Street on the east, Mead Avenue on the north and Poplar Street on the south, enclose a quadrilateral. The Moose Club is within 100 feet from the railroad tracks, near the northwest corner of the figure, and about 500 feet from Water Street. The home of the decedent is southwest of this club, across and west cf the tracks, and still further south and west of the intersection of Poplar Street with the main tracks of defendant company.

The route from the Moose Club to decedent’s home by way of the railroad track would be approximately 900 feet shorter than the route eastward from the club over Mead Avenue to Water Street, thence south along Water Street to Poplar Street, and thence westward along Poplar Street, thence by West Street. Going south from Mead Avenue along Water Street, the next intersecting street leading west is Pine Street. This street also leads to the railroad, thence along the railroad to West Street and to decedent’s home.

From the testimony of Forbes, it appears that the railroad track north and south of Poplar Street was used as a thoroughfare by pedestrians, and especially between Poplar Street and Mead Avenue.

From the testimony of plaintiff, it appears that it was not an unusual thing for her husband to travel the railroad track going from their home to Mead Avenue. To the question as to whether decedent did not generally go up and down the railroad tracks from Mead Avenue to Poplar Street, plaintiff answered (page 28): “If he was going to work and had a late call, I have heard him say that he would take the shorter route to the round-house, but never to go uptown. . . . Well, he would go right up West Street and up the Bessemer tracks and then across Mead Avenue up to the Erie depot.”

Witness also testified that the shortest route from the Moose Club to decedent’s home was to go down the Erie Railroad tracks. From near Mead Avenue to Poplar Street the Bessemer and the Erie Railroad tracks are contiguous to each other. Mr. Herrington testified that he had seen decedent at different times going north from Poplar Street on the railroads tracks and returning the same way.

Two witnesses testified that, after the accident, blood was found on the rails north of the north line of the intersection of Poplar Street and the railroad. One witness said ten or twelve inches north and another two feet north. Other witnesses observed blood further south, but they did not seem to have taken any observation for its northernmost appearance.

It is, therefore, clearly established by the testimony of the deputy coroner, Arthur Byham, and the testimony of Mr. Herrington, that blood of the decedent was found on the west rail of the railroad tracks at a point ten inches to two feet north of the north line of the Poplar Street sidewalk crossing.

At the end of plaintiff’s case the court granted defendant’s motion for a compulsory non-suit on the ground of contributory negligence.

Our action is sustained by all the authorities.

In Grant v. P., B. & W. R. R. Co., 215 Pa. 265, the Supreme Court states the rule: “If deceased was walking the tracks longitudinally, he was guilty of plain contributory negligence, and as the testimony was that he was in the habit of using both ways, the jury could only guess which way he took on that occasion. The plaintiffs, therefore, failed to show a case clear of contributory negligence.” See Cawley v. B. & O. R. R. Co., 44 Pa. Superior Ct. 341; Terry v. D., L. & W. R. R. Co., 60 Pa. Superior Ct. 451; Gallagher v. B. & O. R. R. Co., 52 Pa. Superior Ct. 568; Welsh v. Erie & Wy. Val. R. R. Co., 181 Pa. 461.

After the trial, plaintiff filed her aifidavit and obtained a rule to show cause for a new trial for after-discovered evidence.

The deposition of John McBride, taken in support of said rule, is to the effect that he saw decedent, Marion Crist, on Water Street, opposite Arch Street, on the night of the accident at approximately 8.30 P. M., at which time decedent proceeded southward thereon toward home, with the declaration that he was going home, that he had been called.

Deponent’s affidavit filed fixes the time a little more definitely at 8.30 than does his deposition.

Assuming this evidence to be true and that decedent did not return to the Moose Club, and that he did not adopt the Pine Street route from Water Street to the railroad and thence down the tracks to Poplar Street, there would be foundation for the legal inference that he adopted the Poplar Street route.

We are first to inquire whether a rule for a new trial on account of after-discovered evidence may be engrafted on a motion to take off an order of compulsory non-suit.

Counsel for defendant urgently insists that such a rule cannot prevail under any circumstances. Counsel for plaintiff seems just as confident that it can. But neither furnish any authority for their respective contentions.

We are convinced that it is within our discretion to hear or to reject the depositions filed in support of a new trial: Sidney v. Linton, 216 Pa. 240. We will exercise this discretion in favor of plaintiff by considering the facts presented in the McBride deposition as though presented at the trial. By so doing we realize we are challenging a close legal proposition arising therefrom.

We are next to inquire whether, under the facts so modified by this deposition, the plaintiff could have recovered. What are they? (a) We have decedent, at or about 8.30 P. M., on Water Street, going toward home, with the declaration he had been called out. From this point and while proceeding in this direction the route by Pine Street and thence down the railroad track to Poplar Street, the point of the accident, is quite as direct to his home as by the Poplar Street route, (b) We have decedent, according to the testimony of Forbes, at the Moose Club, where he told Forbes he was “first out and would have to go home.” (o) We have him, by the testimony of Forbes, remaining there for twenty minutes longer, and remaining there till “pretty close to 9 o’clock, right around 9 o’clock.” (d) We have the fact that the engine backing down south was moving at the rate of eighteen miles an hour, and that blood of decedent at the point of accident was found ten inches to two feet north of the north line of the Poplar Street sidewalk or crossing. (e) We have the fact that there was a well-defined path between the railroad tracks from Poplar Street north, used by the public, (f) We have the fact that decedent was a user of this shorter route from time to time, (g) We have the fact by DeVenny’s testimony that the engine that killed Crist backed down over the Poplar Street crossing at 8.40 P. M., and by the railroad fireman, Kightlinger, who was riding on the engine, it crossed this point at “about 9 o’clock in the evening.” If Forbes’s testimony is correct, that decedent left the Moose Club for home “pretty close to 9 o’clock,” and McBride’s testimony is true, that he saw him on Water Street some 600 feet from the Moose Club at 8.30, or shortly thereafter, decedent had fifteen or twenty minutes to get back to the Moose Club after McBride saw him. If the engine crossed Poplar Street at 8.40 o’clock, decedent might have retraced his steps to the Moose Club after McBride saw him on Water Street, and have gone down the railroad track to Poplar Street. If the engine did not in fact cross Poplar Street until 9 o’clock, as estimated by Kightlinger, then decedent had ample time to return to the Moose Club upon any errand, and from thence go down the tracks.

Making due allowance for discrepancies in time, it must be conceded that, from McBride’s testimony, decedent could reasonably have reached the scene of the accident by following Water Street to Poplar Street and thence on the regular crossing.

Aside from the possibilities of routes and deductions as to time, we are confronted with a probability as to the route decedent actually traveled, which arises from the undisputed testimony as to the northernmost point where appeared the blood stains in the snow at Poplar Street.

No matter how favorably to plaintiff we endeavor to construe all the other testimony, it does not blot out these blood stains — it still leaves them irreconcilably opposed to the theory that decedent came to his death while using the Poplar Street crossing.

It is fair to say that two or three of the witnesses observed blood on the line of intersecting travel, at different points north and south, on what might be considered the centre of the sidewalk belonging to said street. But it does not clearly appear that any of these looked for blood farther north than the north sidewalk line. Their testimony merely proved blood on the crossing and south therefrom. It did not answer, nor seek to answer, the inquiry whether there was blood farther northward. The answer cannot be construed beyond the observation of the witness; cannot be enlarged to prove a fact dependent upon observation, when the witness made no observation.

In the face of this we have the testimony of two witnesses, apparently friendly to plaintiff, and her own witnesses, who saw the blood north of the crossing. Arthur Byham, deputy coroner, testified that he found blood immediately following the accident on the west rail of the west track, ten or twelve inches north of the sidewalk. W. P. Herrington testified that he found blood two feet north of the crossing.

We ought, therefore, to accept it as a fact that blood was found north of the crossing, and from this fact it necessarily follows that decedent was not struck, run down or killed on the crossing, but at some point north of the crossing. And from this flows the inference that deceased must have been struck on the right of way of defendant company, several feet north of the street crossing. All of these facts compel the conclusion that deceased was walking the railroad, and not the street crossing, when he was struck, and, therefore, he was a trespasser and guilty of contributory negligence.

It seems beyond all reason and contrary to natural law if decedent, while walking on the crossing, was struck by an engine moving southward at eighteen miles an hour, that his blood could saturate the snow or visibly stain the iron rail of the track at any point north of the point of collision.

Considering the deposition offered and the facts supplied thereby as a part of plaintiff’s proofs at the trial, we are not convinced that she has made out a prima, facie case, free from decedent’s contributory negligence. It, therefore, becomes our duty to deny the motion for a new trial and the motion to take off the order of compulsory non-suit.

Now, July 5, 1921, motion to take off compulsory non-suit is denied and overruled and discharged. Rule for new trial is discharged, and judgment is directed to be entered in favor of defendant company.

From Otto Kohler, Meadville, Pa.


author: Hull, Dep. Att’y-Gen.,

text:
    Dog Licenses.

      Dog licenses — Act of May 11, 1921 — When moneys to be .paid to State Treasurer.

    All license fees collected by the.several county treasurers in payment of dog licenses for the year beginning Jan. 15, 1922, must be paid over to the State Treasurer in accordance with sections 3 and 15 of the Dog Law of May 11, 1921, P. L. 522.
    Attorney-General’s Department. Opinion to Hon. Fred Rasmussen, Secretary of Agriculture.
    Jan. 4, 1922.
   Hull, Dep. Att’y-Gen.,

This department is in receipt of your

letter of Dec. 28th, inquiring what disposition the several county treasurers should make of dog license fees collected prior to Jan. 15, 1922, for the year beginning on that date.

The Act of May 11, 1921, P. L. 522, known as the “Dog Law of 1921,” is a comprehensive enactment relating to dogs and the protection of livestock and poultry. Excepting as to cities of the first and second classes, it repeals and supplies the Dog Law of 1917 (July 11, P. L. 818).

Section 3 of the said Act of 1921 provides: “On or before the 15th day of January, 1922, and on or before the 15th day of January of each year thereafter, the owner of any dog six months old or over shall apply to the county treasurer of his respective county . . . for a license for each such dog owned or kept by him. Such application . . . shall be accompanied by a license fee of $1 for each male dog and each spayed female dog, and by a license fee of $2 for each unspayed female dog. The applicant shall also pay an additional fee of 10 cents for the services of the county treasurer in issuing, recording and reporting said license to the Secretary of Agriculture and remitting fees and fines to the State Treasurer.”

Section 15 provides, in part, as follows: “The county treasurer shall keep an accurate record of all license fees . . . collected by him or paid over to him by any justice of the peace, alderman, magistrate or notary public, and of all money received from the sale of dogs. . . . All such moneys received by the county treasurer shall be remitted to the State Treasurer on. the first Monday of each calendar month, together with a report of each payor, on forms furnished by the Secretary of Agriculture. A duplicate copy of each report shall be furnished the Secretary of Agriculture at the time of making such remittance.”

Section 35 provides, in part, as follows: “The Secretary of Agriculture is hereby authorized to advertise for bids and let contracts for all supplies necessary for carrying out the provisions of this act.”

Section 40 provides as follows: “This act shall take effect on the 15th day of January, 1922, except that the Secretary of Agriculture may issue license blanks and tags, and the county treasurers may issue licenses for the year 1922, at any time after the passage of this act.”

From these provisions and from a reading of the whole act, it is apparent that the legislature intended that the Dog Law of 1917 should continue in full force and effect until Jan. 15, 1922, excepting that all such provisions of the new act as relate to the issuing of license tags, etc., and the collection of license fees for the year begining on that date should become effective immediately upon the passage of the act.

It is true that section 40 mentions only the issuing of blanks, tags and licenses. It does not specifically mention the preparation of blanks and tags, nor the collection and payment of license fees. However, it is clear that before any licenses could be lawfully issued by the county treasurers for 1922 the blanks and tags would have to he prepared and the license fees be paid. Section 40 necessarily contemplates that the provisions which are quoted above should become effective upon the approval of the act.

I, therefore, advise you that all license fees collected by the several county treasurers in payment of dog licenses for the year beginning Jan. 15, 1922, should be paid over to the State Treasurer in accordance with sections 3 and 15 of the Dog Law of 1921.

Prom Guy H. Davies, Harrisburg, Pa.


author: Miller, P. J.,

text:
    Pfeil’s Estate.

      Wills — Contests—Descent and distribution — Family settlement — Remain* dermen — Vested and contingent estates — Survivorship—Power of Orphans’ Court.

    Where the terms of a will created contingent estates, and accumulations which might belong to persons not ascertainable, and whose right could not be ascertained at present, a petition to compromise a will contest by a division of the present estate was dismissed. The Orphans’ Court is without power to authorize a settlement in such a case.
    Petition of committee ad litem for leave to join in compromise. O. C. Allegheny Co., Feb. T., 1921, No. 357.

      James H. Gray, for petitioner.

      Alter, Wright & Barron, Gifford K. Wright and James Milholland, for* respondents.

      Howard Zacharias, for Gertrude Jenny.

      W. L. McGonegly, for contingent interests in estate.

      James L. Weldon, for committee ad litem for Elizabeth Pfeil, lunatic.
    July 26, 1921.
   Miller, P. J.,

This is a proceeding for the compromise of a will contest.

John Pfeil, the testator, died Nov. 10, 1920. By his will he devised all his property to three persons in trust to pay from the net income a sum not to exceed $1000 annually to each of his three sisters and one brother during their lifetime. Upon the death of his brother and all of his sisters the trust created was to terminate, and he devised whatever his estate would be at that time to the persons named as trustees, to wit, Ralph R. Kitchen, Harry Wilson and Robert E. L. Bailey, their heirs and assigns, provided that they be living when the trust was terminated; should any of the three be dead at the time the trust was terminated, the estate was to go to the survivor, or survivors, their heirs and assigns. Afterwards, by writing attached, he directed that Gertrude Jenny should share under his will the same as the three above named men, she to come in for an equal one-fourth of his remaining estate.

On Feb. 16, 1921, on petition of the three sisters and the brother, alleging mental incapacity of the testator and undue influence by the persons named as the residuary beneficiaries iff his will, a citation was granted upon all of the parties interested to show cause why the probate of the will should not be set aside or an issue awarded. To this an answer was filed denying the allegations of the petition. In the meanwhile, by petition filed April 1, 1921, James L. Weldon, Esq., was appointed committee ad litem of one of the original petitioners, Elizabeth Pfeil, under the Act of June 10, 1901, § 1, P. L. 554, it being averred and presumed to be a fact that she was of weak mind.

Before the time fixed for trial, upon petition, answer and replication, it appeared that the parties to the petition and answer had entered into an agreement of compromise, and the committee ad litem for Elizabeth Pfeil presented his petition June 8, 1921, asking leave to join in the compromise and settlement on behalf of his ward. With this petition was submitted the terms of the settlement executed by the brother and the other sisters of decedent and by the residuary legatees. It appears that the brother and the sisters of decedent are not married, have never had children, and that the youngest of the four is past the age of sixty years.

The estate is variously estimated to be worth from $250,000 to $400,000. By the terms of the compromise the brother and sisters would receive outright about $84,000 of the corpus of the estate, to be divided equally among them. On the submission of the petition of the committee ad litem to join in the compromise, and after due consideration, it appearing to the court that a question existed as to whether all of the parties possibly interested in this estate were parties to the compromise, W. L. McConegly, Esq., was appointed trustee for contingent interests in esse and in posse. He has filed an answer, setting forth that the court is without jurisdiction to make the order prayed for; that under the will there is an illegal accumulation of income, which, as it accrues, will belong to persons not ascertainable at present, and whose rights cannot now be determined; that the estate is contingent; that intestacy may arise, and the persons who would then take the estate cannot now be ascertained. It is upon the issue thus raised in connection with all the matters appearing on the record that this question must be determined.

Unquestionably, from the standpoint of the contestants, the brother and sisters of the decedent, the proposed compromise would be highly advantageous, and, the other parties consenting thereto, the court would go far in permitting a settlement in accordance with this family agreement.

But under the decedent’s will the right of the guardian ad litem to a compromise settlement thereof cannot be approved.

For it will be observed that the trust does not terminate until the death of testator’s brother and all of his sisters; that then the estate is vested in the four residuary legatees, provided they be living at the death of the last of the brother and sisters, and provided, further, that if any of them be dead the estate should go to the survivor or survivors. It thus appears that the residuary legatees must survive the death of the last annuitant, and it further appears and is manifest that should none of the remaindermen survive the death of the last annuitant the gift over fails. Testator does not say by his will that, if any one of the remaindermen dies prior to the last annuitant, then his heirs or assigns shall take his share, but that the party to take must be one of the survivors, or the Survivors, their heirs and assigns.

By the terms of the will the estate in the remaindermen is contingent and not vested; survivorship is mandatory; if no such survivorship exists testator died intestate, and his estate goes to his next of kin, who can be many others than his brother or sisters.

It may be conceded, as was urged in the argument, that there is no probability of marriage or issue on the part of this brother or these sisters; but there is nothing to prevent adoption by any one of them of some one who would become their heir, and there certainly can be no question that the collateral relatives of this decedent, none of whom are ascertainable or upon the record, could not be deprived of his estate, should it not vest under the terms of the will by the remaindermen or some of them surviving the last of the life-tenants.

Many contingencies can arise under the provisions of this will. Should the remaindermen all die in the lifetime of this sister in her present mental condition of weakness she might be the heir to her brother’s estate, and this settlement, while liberal now, giving her a fourth of the amount heretofore set forth, would deprive her of the benefit of the entire estate which would fall upon her under the law. Therefore, it cannot be said that the settlement might be to her best interests and advantage, even though favorable on its face at the present time. While the testator aims to provide against the probability that his brother or sisters should come into the principal of his estate, and this agreement would override his intention, this might not be a bar to the settlement were it not for the fact that the estate does not vest in the remain-dermen named until the contingency of survivorship is a fact.

Here, as in Thistle’s Estate, 263 Pa. 60, the events, upon the occurrence of which defeasibility is to operate, are contingent as fixed by the testator. In the view thus expressed, and which need not be elaborated upon, that this estate is contingent, that parties who may be entitled thereto are not ascertainable and cannot now be ascertained, the court is without power (Henderson’s Estate, 258 Pa. 510) to authorize the committee ad litem to join in the petition for settlement, the trust cannot now be terminated, and the petition must be refused. Prom Edwin L. Mattern, Pittsburgh, Pa.


author: Reed, P. J.,

text:
    Hennecamp v. Valley Smokeless Coal Company.

      Mines and mining — Coal lease — Conveyance of coal from adjoining lands— Construction of lease — Extrinsic evidence.

    1. The rule that where the intention of the parties to a grant is not clear, that construction most favorable to the grantee will be adopted, applies to a mining lease of coal.
    2. Where a lease conveys "all the minerals underlying” a tract of land, and mining rights, with full release of damages “caused by the opening and working said mines in the proper manner, . . . together with the right to convey coal and other minerals (provided, however, that all surface occupied or so used or damaged shall be paid for at reasonable prices or damages therefor, but not to exceed $80 per acre . . .) through and over said lands from adjoining lands,” the lessee must pay the lessor for the conveyance of coal mined in adjoining lands through the lands specified in the lease, but is not liable for injury to the surface caused by mining in a proper manner.
    3. Where there is no ambiguity in a mining lease, extrinsic evidence will not be admitted to aid in its construction.
    Motion by defendant for judgment n. o. v. C. P. Cambria Co., Dec. T., 1918, No. 502.

      Graham & Yost, for plaintiff.

      Edward Hopkinson, Jr., and Charles S. Evans, for defendant.
    Sept. 5, 1921.
   Reed, P. J.,

Orphans’ Court, specially presiding,

The plaintiff above named brought an action in trespass against the defendant company, to the above number and term, for injuries which he alleged have been caused to his land in 1913 and 1914 by reason of the defendant company’s failure to properly support the surface. In addition to the actual damage to the land claimed by the plaintiff, he also sued for punitive and exemplary damages on the ground that the defendant company’s actions had been wantonly and wilfully done in disregard of the rights of the plaintiff, and that the mining under his property had been improperly, unlawfully and negligently done. However, at the time of the trial, there was no evidence offered to sustain the latter allegations, and, therefore, we need not consider them in this opinion.

On May 29, 1899, Emma J. Kauffman and husband conveyed, by deed of general warranty, to Daniel Cauffiel, “all the minerals underlying” the tract of land which is now owned by the plaintiff, “together with the right of ingress and egress into, upon and over the said lands, for the purpose of examining and searching for, and of mining, manufacturing and preparing the said minerals for market, and taking, storing, removing and transporting the same, and for these purposes to build roads and drains upon or under the surface of said lands, and to locate and erect such buildings or other structures, with the necessary curtilage, as may be necessary and proper for the convenient use and working of the mines or works, with the right to deposit the dirt or waste of the said mines or works upon the surface convenient thereto. And the said party of the first part does hereby release all and every claim or claims for damage to the said land caused by opening or working of said mines in the proper manner, together with the right to convey coal and other minerals (provided, however, that all surface occupied or so used or damaged shall be paid for at reasonable prices or damages therefor, but not to exceed $80 per acre, and the replacing or full cost of damages to improvements, if any, thereon) through and over said lands from adjoining lands.”

The defendant took title to the above described coal and mining rights by deed from Daniel Cauffiel, the above named grantee, and by virtue of the covenants and conditions in its deed mined out the greater part of the coal from under this land, and the plaintiff alleges that, in mining and removing said coal, the defendant failed to properly support the superincumbent strata, and by reason of this failure the surface was damaged and he suffered a loss of the springs which supplied his farm with water.

At the time of the trial, counsel for the defendant urged the court to direct a compulsory non-suit for the reason that 'there had been a full and complete release of all damages to the surface; for the reason that, at the time of the severance of the surface and the minerals, the grantor gave a deed which contained a full and complete release of all and every claim or claims for damages to the said land caused by opening or working said mines in the proper manner, and if it were not for the fact that the deed also contained the hereinafter quoted clause, there could not be any contention in regard to the rights of the parties in this issue. After the release in the deed of all and every claim or claims for damages to said land, caused by opening and working said mines in the proper manner, we find the following language: “Together with the right to convey coal and other minerals (provided, however, that all surface occupied or so used or damaged shall be paid for at reasonable prices or damages therefor, but not to exceed $80 per acre, and the replacing of full cost of damages to improvements, if any, thereon) through and over said lands from adjoining lands.”

The question for us to determine is to what part of the grant does the above quoted clause refer. Does this clause in the deed refer to any damage done the surface by reason of the mining and removal of the coal from under this particular piece of land in a proper manner, or does it simply refer to surface that will be occupied, used or damaged by conveying coal and other minerals through and over said lands from adjoining lands. If the former view is adopted, then, under the testimony, the defendant is entitled to judgment 12. o. v., for the reason that there was no evidence submitted at the time of the trial that the coal had been mined out from under this property in an improper manner. The deed that conveyed the coal and other minerals under this property gave the most comprehensive rights and privileges for use of the surface for the working of the mines and removal of the coal, with the right to deposit dirt or waste from the mines upon the surface. This grant was followed by the release. Up until this time in the deed, all its provisions, conditions and privileges were confined to the mining and removal of coal from under this particular tract of land; but the grantors still being the owner of the surface of the land, the grantee did not have the right to convey coal and other minerals through and under this land from adjoining lands, and unless this right was granted to the grantee, in case he owned the coal or minerals in, under or upon adjoining lands which he wished to haul through or over the surface of the grantor’s land, it would have been necessary for him to pay a wheelage for that privilege, and in order to get the right or permission to haul coal through and under the grantor’s land, grantee agreed that this should be done upon certain conditions, and that was, that in case the grantee, or his heirs or assigns, occupied, used or damaged any of this surface in mining and removing the coal from adjoining lands, then for all such surface used or damaged the owner of the coal was to pay the owner of the surface a reasonable price or damage therefor, not exceeding $80 per acre.

In considering this deed, it is incumbent upon us to consider and give effect to all of its terms and provisions so as to harmonize, if possible, all of them, so as to make the entire deed consistent, and it would not seem to be consistent to say that the grantor in a deed of coal and mining rights would grant a general release of damages to his lands, caused by opening or working the mines in a proper manner, and then, in a following clause, attempt to protect his surface or himself from damage by charging a reasonable price for the damages which he had already released, and if we were to adopt the view of the counsel for the plaintiff, we would have the above anomaly or inconsistency in the grant. If we construe the deed and the grant of the mining rights and privileges to mean that the grantor gave a general release of all damages that might be done to the surface of the land under which he sold the coal by reason of the mining and removal of the same, and that he protected himself for the injuries that his lands would receive by reason of the mining and removal of the coal from adjoining lands, we have a deed that is not only consistent, but which is, to our mind, most reasonable. And, again, if the language is such in the deed that either view could be reasonably adopted, then, under the general rule that a deed or lease “is to be taken most strongly against the vendor or lessor,” the court must conclude that the clause within parenthesis applied only to damages which would be done this land by reason of the mining and removal of coal through and over said lands from adjoining lands.

In the case of Miles v. N. Y. S. & W. Coal Co., 250 Pa. 147, 153, the Supreme Court said: “A strict construction of the lease against the grantor is justified by the familiar rule that where the intention of the parties to a grant is not clear, that construction most favorable to the grantee will be adopted. Thus, in Klaer v. Ridgway, 86 Pa. 529, it was said: ‘It is a familiar rule that a deed or grant must be construed most strongly against the grantor. This applies with especial force to a reservation or a restriction in a deed whereby there is a withholding of something from the grant. This language was quoted with approval in Sheffield Water Co. v. Elk Tanning Co., 225 Pa. 614. The rule of strict construction against a grantor was applied in a mining lease in Grubb v. Grubb, 101 Pa. 11.’ ” ’

We were much impressed with the able argument of the counsel for the plaintiff at the time of the trial as to his view or construction of the language used in this grant, and he has supplemented that with an able brief, wherein he has very extensively analyzed this language and given his reasons for the position which he has taken; but, after a careful consideration of the entire deed, we have been compelled to come to the conclusion that the plaintiff is not entitled to recover on account of this general release of damages.

The plaintiff offered to call witnesses for the purpose of enlightening the court as to what the parties meant by the language they used at the time the deed was written, and we felt at that time, and are still of the opinion, that there is no such ambiguity in this deed as would permit us to hear evidence for the purpose of placing a construction on the language contained therein. Having come to the above conclusion, we do not deem it necessary to enlarge on and further discuss the reasons filed for a new trial.

And now, Sept. 5, 1921, for the reasons above stated, the motion of defendant for judgment n. o. v. is sustained, and judgment is directed to be entered for the defendant, at the cost of the plaintiff.

From H. "W. Storey, Jr., Johnstown, Pa,


author: Collins, Dep. Att’y-Gen.,

text:
    Mothers’ Assistance Fund.

      Marriage — Legality — Marriage of uncle and niece — Acts of March IS, 1815, and July 10, 1919, P. L. 898.

    1. A marriage oí an uncle and niece, although valid in the state where it was celebrated, is repugnant to the laws of Pennsylvania, and is invalid in this State. Where, however, the husband is dead, the unlawfulness of such marriage cannot, under the Act of March 13, 1815, 6 Sm. Laws,. 286, be inquired into.
    2. A widow is eligible for assistance from the Mothers’ Assistance Fund, although her husband, to whom she was married in another state, was her uncle.
    Attomey’s-General Department. Opinion to Miss Mary F. Bogue, State Supervisor, Mothers’ Assistance Fund.
    Dec. 12, 1921.
   Collins, Dep. Att’y-Gen.,

This department is in- receipt of your communication of the 28th ult. relative to the eligibility of a certain mother mentioned in your communication for relief under the Mothers’ Assistance Fund Law. It appears that in 1907 she and her uncle were married in another state, that he has recently died, and that she is the mother of five children and in needy circumstances. The precise question submitted by you for the opinion of this department is: “Was her marriage to her uncle valid?”

This question arises under section 6 of the Act of July 10, 1919, P. L. 893, known as the Mothers’ Assistance Fund Law, which limits the assistance provided for thereunder to “poor and dependent mothers of proved character and ability, who have children under the age of sixteen years, and whose husbands are dead or permanently confined in institutions for the insane.”

A marriage of uncle and niece is unlawful in this Commonwealth, and by section 39 of the Penal Code of 1860 is made a crime and declared void. It is needless to inquire whether the marriage in such a case as this was lawful in the state or country where contracted, for the reason that, while the general rule is that a marriage valid in the place where celebrated is valid in any state or country where the parties may subsequently reside, an exception prevails to this general rule in the case of marriages so repugnant to the laws of the domicile as that of uncle and niece: 26 Cyclopedia of Law, 829-30.

In United States v. The International Navigation Co., 10 Dist. R. 480, Judge McPherson, in the United States District Court, in holding that, although a marriage between uncle and niece was lawful in the country where it was contracted (in that case Russia), it was, nevertheless, invalid in Pennsylvania, said in the course of his opinion: “Where the ceremony took place, it has been satisfactorily proved that a marriage between uncle and niece is lawful; and being valid there, the general rule undoubtedly is that such a marriage would be regarded everywhere as valid. But there is this exception, at least, to the rule; if the relation thus entered into elsewhere, although lawful in the foreign country, is stigmatized as incestuous by the law of Pennsylvania, no rule of comity requires a court sitting in this State to recognize the foreign marriage as valid.”

The case here under consideration, however, is not one as there, where both parties to the marriage were living, but where one of them is dead. Section 5 of the Act of March 13, 1815, 6 Sm. Laws, 286, provides: “That all marriages within the degrees of consanguinity, or affinity, according to the table established by law, are hereby declared void to all intents and purposes; . . . but when any of the said marriages shall not have been dissolved during the lifetime of the parties, the unlawfulness of the same shall not be inquired into after the death of either the husband or wife.”

In Parker’s Appeal, 44 Pa. 309, it was held that under that act, where there had been a marriage of an uncle and niece, “all inquiry into its unlawfulness was closed” upon his death, and that she was entitled to letters of administration as his widow.

To the same effect is the case of Walter’s Appeal, 70 Pa. 392, in which it was decided that the validity of a marriage between a man and his son’s widow could not be questioned after his death in the distribution of his estate.

The rule laid down in the last two cited cases is applicable here. It follows that in determining whether the said mother is eligible for assistance under the Mothers’ Assistance Fund Law, the validity of her said marriage cannot be questioned. From Guy H. Davies, Harrisburg, Fa.


author: Sloan, P. J.,

text:
    Farmington Township Road.

      Road law — Petition—Intermediate points — Vacation of road — Laying out of new road — Quashing proceedings after confirmation — Defect on face of record.

    1. Where a petition for the vacation of a road and the laying out of a new road sets forth intermediate points, the proceedings will be quashed, even after the confirmation of the report of viewers and the entry of an order to open the new road.
    2. Such a defect is apparent on the face of the record, is a matter of substance, and by reason of it the proceedings may be quashed at any time prior to the opening of the road.
    Rule to set aside proceedings. Q. S. Clarion Co., Dec. T., 1908, No. 1.

      A. A. Geary, for rule; £>. K. Clarke, contra.
    July 12, 1921.
   Sloan, P. J.,

On Aug. 27, 1908, a petition was presented to the Court of Quarter Sessions for the appointment of viewers to vacate a public road in Farmington Township, beginning at Philip Cook’s watering trough, thence along the said road to a point where it intersects or crosses the line between the lands of William Foy and Robert Macbeth, and the laying out of a new road from the last above mentioned point where the Gravel Lick Road crosses the line between the lands of William Foy and Robert Macbeth, thenee along said line north to the Cook’s Comers Road.

Viewers were appointed and a report made and filed and confirmed nisi Dec. 7,1908, which confirmation became absolute at the February Term, 1909, No further action was taken until September, 1920, when an order to open the new road was issued to the road supervisors. On Oct. 29, 1920, the supervisors filed exceptions, by leave of court, for the reason that the petition suggests intermediate points from the beginning to the terminus of the proposed road, and asked that the proceedings be set aside.

It is conceded by counsel now representing the petitioners that if exceptions had been filed prior to the final confirmation of the road the proceedings would have been set aside. He also concedes that a court may set aside proceedings after confirmation for defects appearing which go to the jurisdiction of the court. His argument is that in no reported case have proceedings been quashed or set aside after confirmation where the only defect is that the petition included intermediate points, and that such defect is not jurisdictional, because the statute does not prescribe what the petition shall or shall not contain.

We have not been cited to any case where exceptions to the record have been sustained after confirmation of a report where points were designated in the record, but cases are many where exceptions have been sustained for want of a definite beginning and ending. We fail to see any substantial difference in the principle where the record shows uncertain termini or endings, and where intermediate points have been suggested in the petition. In both cases the defects go to the record.

We think the decision given by Judge Porter in Crescent Township Road, 18 Pa. Superior Ct. 160, will apply to the present case, and that exceptions which go to the jurisdiction of the court and appear upon the record are good at any time before the order has been carried into execution by the opening of the road. Nothing has ever been done since the filing of the report in the present case that would estop any one from taking action at any time for the matters upon the record.

In the Appeal of Nemon in Road in Dunbar Township, 12 Pa. Superior Ct. 491, 496, Judge Porter said, on the point where leave was asked to file exceptions as to a matter appearing on the record: “We think the learned court below should have permitted them to be filed nunc pro tunc. If the court should have permitted the exceptions to be filed, that necessarily implied that it had authority to consider and, if well founded, sustain them.”

These exceptions were filed by leave of court, and the court is asked to do what the court should have done before viewers were appointed or the report confirmed. The exceptions are not to the discretionary matters or expediency —that must be done before the final confirmation — but in a matter of substance that appears from the record.

“The power of a court to quash its own writ of execution because of a fatal error apparent upon the face of the writ can, as a general rule, be exercised at any time during the life of the process:” In the Appeal of Nemon, 12 Pa. Superior Ct. 491.

We can see no distinction in the cases that rule the principle of incorrect beginnings or endings and one which designates the intermediate points. They both go to affect the record in the case, and exceptions are good any time before the execution of the order. The exceptions in this case must be sustained and the proceedings quashed and set aside.

And now, July 12, 1921, after consideration and argument, the exceptions filed in the above case are sustained and all proceedings are set aside. Exception granted to petitioners and bill sealed.


author: Audenried, P. J.,

text:
    Miles et al. v. Harris.

      Conveyances in fraud of creditors- — Delaying and hindering — 13 Eliz., c. 13.

    A conveyance of real estate to a trustee In trust to sell the same at public or private sale, as he may deem best in the interest of the grantor, and, pending the sale, "to improve the same or any part thereof,” tends to delay and hinder existing creditors in the collection of their debts and, under 13 Eliz., c. 13, is of no effect as against them; hence, one who was a creditor when the conveyance was made may reduce his claim to judgment and proceed against the rents and the proceeds of the sale of the property by attachment execution, serving the trustee as garnishee.
    Rule for judgment against garnishee. C. P. No. 4, Phila. Co-, Sept. T., 1921, No. 2489.

      iS. K. White, for plaintiffs; C. Sinkler, for defendant.
    Dec. 15, 1921.
   Audenried, P. J.,

On Oct. 26, 1921, Benjamin C. Miles and others, trading as Joseph Miles’s Sons, obtained a judgment against William T. Harris for $3195.62 upon two promissory notes and a book account for goods sold and delivered. An attachment execution was issued thereon and was served upon J. Randall Williams. The matter is now before the court on a rule for judgment against the garnishee on his answers to the interrogatories filed by the plaintiffs.

It appears by the answers that Mr. Harris and his wife, on July 9, 1921, conveyed to Mr. Williams a large number of houses (some of them unfinished) and certain unimproved land in Montgomery County. The subject-matter of the conveyance, as described in the deed (a copy of which is attached to the answers), was “all the real estate, wherever situate, of him, the said William T. Harris, and all the right of dower or other interest of her, the said Mary E. Harris, his wife, therein.”

The deed recites that Mr. Harris is an operative builder; that to build the houses owned by him, he incurred certain indebtedness; that by reason of ill-health he is unable to attend to the completion of such of the buildings as are in the course of construction, the sale of his property and the application of the proceeds of the lease or sale thereof to their care and the liquidation of his indebtedness; and that, therefore, he has requested Mr. Williams to accept the conveyance of his property upon certain trusts.

The trusts set forth in the deed are as follows:

“1. To sell and convey as soon as the same may be conveniently done all of said real estate hereby conveyed and transferred, either at public or private sale or sales and for such price or prices and upon such terms as Grantee may deem best in the interest of said William T. Harris, and to make good and sufficient deeds therefor to the purchasers thereof in fee simple or for any less estate, without any obligation on the latter to see to or be responsible for the application of the purchase money.
“2. To ask, demand, sue for, levy, recover and receive all rents, and other sums of money due the said William T. Harris, in connection with said real estate, to give acquittances or other sufficient discharges in the law therefor, and to make such compromises or other arrangements as Grantee may deem beneficial to this trust.
“3. Pending the sale of any of said real estate, to mortgage, lease, repair, alter or improve the same or any part thereof, to pay all taxes, water rents and other charges against the same, to keep the same adequately insured, and to do all things necessary for the proper care thereof.
“4. To apply the proceeds of sale of any of said real estate and any and all other moneys received by Grantee from rents or otherwise, after deducting therefrom all reasonable costs and charges and expending therefrom all sums necessary in the judgment of Grantee to complete the buildings on any of said real estate, to the payment of all the just demands of the creditors of the said William T. Harris in full, or if there shall, not be sufficient assets to pay all of said demands in full, to the payment of the same equally in proportion to the respective amounts thereof without preference to creditors, and should any part of said estate, property or funds remain after complying with the terms aforesaid, to redeliver and reeonvey the same unto the said William T. Harris, his heirs, executors, administrators and assigns.
“5. Should Grantee at any time be unwilling or unable to continue to act as trustee hereunder, to assign, transfer and convey all of said real estate, and personal property arising therefrom, held by him at such time, to Richard J. Hamilton of the Township of Lower Merion aforesaid, his heirs and assigns, in' trust for the uses and purposes hereinbefore set forth.”

The garnishee admits that he holds as trustee under the defendant’s deed, besides the real estate above mentioned, certain personal property, viz., a mortgage executed by Frank W. Houston, securing payment of the sum of $1500 as a third lien on property at Narberth, known as No. 9 East Montgomery Avenue (which had come into his hands presumably as the result of the sale of the houses conveyed to him by Mr. Harris), also a note of Frank W. Houston for $286.20 and a credit balance of $3103.38 with the Chester County Trust Company, made up of rents from the houses conveyed to him by the defendant, less certain payments made to prevent the foreclosure of mortgages covering properties included in the trust estate.

It appears by the answers that the defendant’s debts aggregate approximately $190,000.

The claims on which the plaintiff recovered judgment arose prior to the defendant’s conveyances to the garnishee, but those represented by the notes were not then demandable.

We are of the opinion that, so far as the creditors of Mr. Harris are concerned, his deed to Mr. Williams was without effect; and that, with relation to their rights, the real estate therein referred to is to be regarded as still the property of the defendant.

The reason for so holding is that the law forbids not only conveyances intended to defeat the claims of creditors, but also such as may have for their purpose the hindering or delaying of the efforts of creditors to collect what may be owing to them. That the conveyance from Harris to Williams was intended to gain time at the expense of his creditors is plain on the face of that instrument.

“A creditor,” says Coulter, J., in Kepner v. Burkhart, 5 Pa. 478, “is entitled to sell the estate of his debtor for the satisfaction of his judgment according to the mode and terms préscribed by the law; and whatever expedient the debtor adopts by deed or alienation, with the clear intent to defeat or prevent that, is void.”

It is true that the garnishee was authorized to apply the proceeds of sales of the defendant’s real estate, and such rentals as he might receive from it, to the payment of the just demands of the latter’s creditors in full; but, pending sale of the land, he is directed to improve the same or any part thereof, a duty which transcends that of the ordinary trustee for the benefit of creditors; and while the deed requires the garnishee to sell the real estate as soon as may be convenient, this authority is coupled with the direction that the manner of sale, the price and the terms shall be such as the grantee may deem best for the interest, not of the creditors of Mr. Harris, but of Mr. Harris himself.

A clause in an assignment for creditors by which the trustees were to be restrained from selling the land for a certain period was said by Gibson, C. J., in Adlum v. Yard, 1 Rawle, 163, 171, to be “undoubtedly in delay of creditors and to bring the whole within the purview of the 13th Eliz.”

“Creditors are entitled not only to be paid, but to be paid as their claims accrue; and a debtor has no more right to postpone payment simply for his own advantage than to defeat it altogether:” 13 Am. & Eng. Ency. of Law, 244.

A purpose to delay a creditor is fraudulent in law, although the debtor’s intent may be honest in the sense in which that term is ordinarily used. Doubtless, Mr. Harris meant that all his creditors should be paid in full, and, in good faith, believed that by conveying his real estate to Mr. Williams upon the trusts set forth in his deed, he was acting for their benefit; but, for all that, the transaction was contrary to law, and, so far as concerns those to whom he was in debt, his deed is of no effect. That a debtor should impose his own terms upon his creditors in the application of his estate to the payment of their claims cannot be countenanced or tolerated.

As to the creditors of Harris, his conveyance to Williams raised a trust in favor of the former in respect to the real estate to which it related, and the plaintiffs, as creditors, may treat it and anything in the hands of Williams in the way of personal propery derived from it as jf it were the property of Harris. This leads to the conclusion that the plaintiffs have the right to attach the note, the mortgage and the money referred to in the answers, just as they might attach any similar property in the hands of an ordinary agent or depository of the defendant.

The rule for judgment against the garnishee is made absolute; and it is adjudged that the note, mortgage and moneys above referred to are subject to the plaintiffs’ attachment; but the garnishee is allowed the sum of $25, to be paid out of the property in his hands, for counsel fees.


author: McMichael, P. J.,

text:
    Hilbert v. Pennsylvania Railroad Company.

      Uniform bill of lading — Requirement that suit be brought, in case of failure to deliver goods, within two years and one day after reasonable time for delivery has elapsed.

    1. The clause in the uniform hill of lading requiring that in case of failure to make delivery, suit shall he brought within two years and one day after a reasonable time for deliverey has elapsed, is valid and will be enforced.
    2. Plaintiff shipped household goods at Huntingdon, Mass., consigned to herself (at Philadelphia, on or about Nov. 21, 1917. They were not delivered, and to her inquiries defendant replied that they had not arrived and could not be found. In 1919 the goods were found, but defendant’s agent demanded storage charges. Later, defendant offered to deliver the goods upon payment of hauling charges. This the plaintiff refused. On May 7, 1920, she made a formal demand, which defendant refused on May 8, 1920. On May 29, 1920, she brought suit: Held, that the suit was unreasonably delayed, and under the above clause could not be maintained.
    Motion to take off non-suit. C. P. No. 3, Phila. Go., June T., 1920, No. 1064.

      Allen S. Olmsted, 2nd, for plaintiff; Charles Myers, for defendant.
    March 31, 1922.
   McMichael, P. J.,

This case was tried Feb. 15, 1922, before McMichael, P. J. The trial judge entered a non-suit. The plaintiff has moved to take off the non-suit.

The non-suit was entered because the trial judge was of opinion that the plaintiff, having failed to bring suit within two years and one day or a reasonable time thereafter, cannot proceed with her action. The plaintiff shipped a carload of household goods at Huntingdon, Massachusetts, consigned to herself at Philadelphia. The Boston and Albany Railroad issued a bill of lading for the shipment, which was offered in evidence by the plaintiff, and which contained the following condition on the back thereof:

“Suit for loss, damage or delay shall be instituted only within two years and one day after the delivery of the property, or in the case of failure to make delivery, then within two years and one day after a reasonable time for delivery has elapsed.”

The goods were shipped on or about Nov. 21, 1917. Beginning the second day after the goods were shipped, the plaintiff made frequent demands, and was told the goods had not arrived and they could not be found. In the summer of 1919 the goods were found, and the agent demanded that the plaintiff pay several hundred dollars in storage charges. Later, the defendant offered to deliver the goods upon the payment of hauling charges only. This charge the plaintiff refused to pay. On May 7, 1920, a demand was made by the plaintiff upon the defendant for the delivery of the goods, which was refused by the defendant on May 8, 1920. This suit was brought three weeks later.

The bill of lading under which the goods were shipped contained the following clauses:

“. . . as conditions precedent to recovery, claims must be made in writing to the originating or delivering carrier within six months after the delivery of the property, ... or in case of failure to make delivery, then within six months . . . after a reasonable time for delivery has elapsed; and suits for loss, damage or delay shall be instituted only within two years and one day after delivery of property, or in case of failure to make delivery, then within two years and one day after a reasonable time for delivery has elapsed.”

The trial judge considered that he was bound by the authority of Georgia, Florida and Alabama Ry. Co. v. Blish Milling Co., 241 U. S. 190, decided in 1916, in which the opinion of the Supreme Court of the United States was delivered by Mr. Justice Hughes. In that case the court decided, inter alia, that, no matter what the form of suit in a State court might be, the bill of lading (which was identical with the one under which the plaintiff in this case shipped her goods) was controlling, and that suit must be brought within two years and one day, or a reasonable time thereafter, from the time the goods should have been delivered.

The court in banc, upon the motion to take off the non-suit, is of opinion that in this interpretation the trial judge was correct. The interpretation of this clause of the bill of lading is clearly within the province of the Federal courts, and the opinion was that of the Supreme Court of the United States, which undoubtedly had the right to interpret this clause of the bill of lading; and the decision of that court that the form of action does not matter is controlling upon us. This, we think, disposes of the plaintiff’s contention that no conversion took place until the letter demanding the goods from the railroad company was sent to them and a reply received containing a peremptory refusal to deliver the goods.

Another question in the case is whether suit was brought within a reasonable time after the expiration of two years and one day after failure to make delivery. The language of the bill of lading is: “Suits for loss, damage or delay shall be instituted only within two years and one day after delivery of the property, or in case of failure to make delivery, then within two years and one day after a reasonable time for delivery has elapsed.”

We have two cases in the Superior Court of Pennsylvania upon what constitutes a reasonable period in cases similar to the one at bar. One case is Sloss-Sheffield Steel and Iron Co. v. Tacony Iron Co., 54 Pa. Superior Ct. 11, in which the opinion of the Superior Court was delivered by Orlady, J. (now President Judge), July 16, 1913. In that case the head-note is as follows:

“Contract — Sale—Delivery—Delay—Judicial notice. Where a contract for the sale of pig-iron, made in Birmingham, Alabama, on April 16th, provided for ‘shipments during April and May,’ ‘delivered f. o. b. Tacony, Philadelphia, Pennsylvania,’ and the iron was shipped on April 30th, but not tendered to Tacony until Dec. 24th, the purchaser is justified in refusing to accept the iron in the absence of an explanation as to the cause of the delay. In such a case the court will take judicial notice of the distance between Birmingham and Tacony and of the time which, by any ordinary means of transportation, would be consumed in sending goods from one point to the other, and will determine as a matter of law that the unexplained delay was wholly unreasonable.”

In the opinion of the court in that ease (page 13) the following language was used: “The court rightfully took judicial notice of the distance between Birmingham, Alabama, and Tacony, Pennsylvania, and of the time which, by any ordinary means of transportation, would be consumed in sending goods from one point to the other. The conclusion could not be other than that eight months was a wholly unreasonable time for such transportation, and the delay in making the delivery imposed upon the seller the burden of showing that the cause of the delayed delivery was not under his control. No attempt was made to meet this demand, and the court properly entered a non-suit.”

In the case of Coroneos Brothers v. Pennsylvania R. R. Co., 75 Pa. Superior Ct. 222, in which the opinion of the court was delivered by Linn, J., Sept. 10, 1920, the head-note is as follows:

“In an action by a shipper against a railroad company for the unauthorized delivery of freight, it appeared that the bill of lading provided that all claims must be made within four months after delivery of the property, but in case of failure to make such delivery, then within four months after reasonable time for delivery had elapsed. An unauthorized delivery of the property was made by the warehousing company, with whom it was stored pursuant to a provision in the bill of lading, but no claim for loss was presented until nearly eight months after the arrival of the property at the destination.
“Under such circumstances, the claim for the failure to deliver was not made in time, and judgment was properly entered in favor of the defendant.”

In that case the court said (page 225): “Since no claim was made until Feb. 11, 1918, for the failure to deliver or the misdelivery, the claim was not made in time.”

In the case at bar the goods were shipped on Nov. 21,1917, and the letter and demand on which the plaintiff founds the present action of trespass in the nature of trover and conversion was written May 7, 1920. Suit was not brought until May 29, 1920. (The summons was served June 2, 1920.) So that six months and ten days elapsed between a time two years and one day after the shipment of the goods and the bringing of the suit. Even if thirty days be reckoned as a reasonable time for transportation, the plaintiff allowed ten days in December and all of January, February, March, April and May to elapse before she brought suit. This the trial judge considered, and we take the same view, was an unreasonable time for her to wait to assert her rights, which are governed by the bill of lading.

The question of the reasonableness of the condition in the bill of lading was argued before the court, and it was stated that the Interstate Commerce Commission had held this particular provision of the bill of lading to be unreasonable. We do not, however, feel that we are bound by the decisions of the Interstate Commere Commission, because the District Court for the Northern District of Georgia, in the case of Leigh Ellis & Co. v. Payne, 274 Fed. Repr. 443, held that the decision of the Interstate Commerce Commission did not annul the rights of parties under bills of lading issued prior to the decision of the Interstate Commerce Commission, and, accordingly, that the two-year and one-day period for bringing suit was valid. This decision was affirmed by the Circuit Court of Appeals for the Fifth Circuit. See 276 Fed. Repr. 400.

The attention of the court has been called to the recent decision of the United States Circuit Court of Appeals for the Second Circuit in the case of the New York Central R. R. Co. v. Lazarus et al., in which the opinion of the court was delivered by Mantón, Circuit Judge; in which case the judgment of the lower court was reversed and a bill of lading similar to the one which was in evidence in the case at bar was held not to be unreasonable.

For these reasons, the motion to take off the non-suit is overruled.


author: Gest, J.,

text:
    Leech’s Estate.

      Wills — Construction—Gifts over to persons entitled under “then existing” intestate laws.

    Testator bequeathed his residuary estate to his executors in trust to pay the income to his wife for life, with remainder to his three children for their lives and to their issue, and as to the further devolution provided as follows: “After these trusts have been fully executed, then the said property shall descend and go as my estate according to the then existing laws of Pennsylvania. Provided, however, that if either of my sons should die leaving a widow, I direct the said trustees to pay to such widow during her life, if she shall so long remain my son’s widow, such part of the income of my estate which would have been coming to such son, as he may by any last will and testament in writing direct and appoint.” The widow was survived by testator’s three children, all of whom died without issue living at the period of distribution: BeH, that the direction that the property should “descend and go as my estate according to the then existing laws of Pennsylvania” indicated that those who were entitled thereunder were testator’s next of kin at the period of distribution rather than at his death; and this indication was further strengthened by the language of the proviso; and that, therefore, his nephews and nieces were entitled to the fund, and not the administrators of his deceased children.
    Exceptions to adjudication. O. C. Phila. Co., Jan. T., 1879, No. 448.

      Porter, Foulkrod & McCullagh, for the estates of the widow and of the children of the testator, exceptants.

      Bell, Kendrick, Trinkle & Deeter and Joseph D. Redding, for Jameson Cot-ting, administrator, exceptant.

      Francis Shunk Brown, Jr., Gunnison, Fish, Gifford & Chapin and Brown & Williams, for nephews and nieces of testator, contra.
    Feb. 3, 1922.
   Gest, J.,

The testator died on Oct. 29, 1869, leaving a will dated Nov. 25, 1867, and a codicil dated June 26, 1869, by which he devised and bequeathed his residuary estate as a whole to his executors in trust to pay the income, one-third to his wife for life or widowhood and the remainder to his three children for their respective lives and to their issue, free of their debts, and then provided, in the paragraph of his will which must now be construed: “After these trusts have been fully executed, then the said property shall descend and go as my estate according to the then existing laws of Pennsylvania. Provided, however, that if either of my sons should die leaving a widow, I direct the said trustees to pay to such widow during life, if she shall so long remain my son’s widow, such part of the income of my estate which would have been coming to such son, as he may by any last will and testament in writing direct and appoint.”

The widow died in 1910, and of the three children Henry died in 1890, leaving issue a daughter, Marie Cotting, who died in 1900, without issue; David died in March, 1921, without issue, and Josephine died in August, 1921, also without issue, being the last survivor, so that, after the lapse of fifty-two years, the trusts established by the will have been fully executed, and the principal or corpus of the estate is to be distributed. The question for this court to decide is whether it should descend and go as the testator’s estate, (1) to the personal representatives of the three deceased children, perhaps including the estate of the deceased widow, the distribution being, on this theory, made as of the date of the testator’s death; or (2) to the children of the deceased brothers and sister of the testator, who, there being now no lineal descendants, would be entitled as collateral heirs or next of kin of the testator, the distribution on this theory being made as of the date of the death of the testator’s last surviving child. The auditing judge, in a well considered adjudication, adopted the latter construction of the will, and we concur in his opinion.

It cannot be disputed that, as a general rule of construction, a testator who makes a gift in remainder to heirs, or next of kin, or to the persons who would take under the intestate laws, or gives the estate in accordance with the law, or the like, will be understood to intend those persons who would have so taken at the time of his death and not at the time appointed for their taking. This is not a mere arbitrary rule, but is founded, upon common sense, for a testator, in making such a provision, is, naturally enough, contemplating his own death as the period when the objects of his bounty should be ascertained; and, moreover, the persons thus entitled under the intestate laws have a statutory right, which should prevail unless it appears that the testator intended that others should take, and this contrary intention must, as the decisions show, be clear and convincing.

But, after all, the question is what did the testator mean by the words which he has used, and in this will the crucial words are contained in three lines — “after these trusts have been fully executed, then the said property shall descend and go as my estate according to the then existing laws of Pennsylvania.” The word “then” may have either of two meanings; it may mean “in that event” or “at that time.” If this testator had merely said “then the said property shall descend and go as my estate according to the laws of Pennsylvania,” we might be disposed to hold, under some of the decisions cited to us, that the word “then” was used simply to denote a transition in thought and not in its temporal sense; but where the testator adds “according to the then existing laws of Pennsylvania,” it is impossible for us to doubt that he intended to refer to the time of distribution, “after these trusts have been fully executed.” It was, indeed, ingeniously argued by counsel for the exceptants that the testator did not intend by these words to limit or define the class of persons who should take, but merely that the distribution or apportionment of the estate among that class of persons should be made in accordance with the “then existing laws.” We disagree with this construction. The provision that “the property shall descend and go as my estate according to the then existing laws” must refer to the persons who should be entitled to take under the then existing laws, as well as to the interests which they should be entitled to take. “The then existing laws” provide for both, and the two matters cannot be separated. We have then, it seems to us, a clear and unequivocal expression of intention by the testator that, when the trusts of the will should have been fulfilled, his estate should go to the persons who would be entitled as his next of kin at that time; and this construction is supported, if it needs support, by what follows: “Provided, however, that if either of my sons should die leaving a widow, I direct the said trustees to pay to such widow during life, if she shall so long remain my son’s widow, such part of the income of my estate which would have been coming to such son as he may by any last will and testament in writing direct and appoint.” If the testator intended — and the argument of the exceptants must go to that length — that his children should take vested interests in the principal of the estate at the testator’s death, what object could he have had in thus providing this power of appointment as to their income? The answer made at the argument was that this was to enable a son at his death, pending the trust, to provide, as Henry S. Leech did, for his widow until its termination. This is true enough as far as it goes, but the answer is not complete, for this power of appointment relating to income is found as a proviso in that concluding part of the will which disposes of the principal, and this does not seem consistent with the theory that Henry had an absolute estate in one-third (or perhaps two-ninths) of the principal of the estate in which his widow would be entitled to share, whether he left a will or not. Placed where it is, it indicates a limitation of his right of testamentary disposition.

We have not thought it necessary to extend this opinion by any reference to the decisions which were discussed in the elaborate argument of this case, and shall only briefly refer to other questions that were debated. Thus, it was argued that the word “descend” is inapplicable to a gift to collaterals; but this objection has been well answered by the auditing judge, who notices that the phrase used is not merely “descend,” but also “descend and go as my estate.” The provision as to the advancements authorized for his children, in the fifth paragraph of the will, is also explained by the auditing judge in his adjudication, in addition to which it may be considered in connection with the subsequent clause exempting their income from debts, etc., or from assignment or anticipation. That is, the testator may have intended that, notwithstanding the provision against assignment or anticipation of the income, the trustees might, in the exercise of a cautiously guarded discretion, make “advances” therefrom to his sons to enable them to go into business, and might buy a residence for his daughter. Much stress also was laid in the argument upon this provision in the will, that these advances for the sons or expenditures for the daughter should be deducted from their respective shares “which I am about to set apart for their benefit,” which, it was argued, indicated that the children were given shares of the corpus from which these advances should be deducted. It is perhaps a sufficient answer that, even if the testator stated that he was about to set apart such shares, he did not in fact do so, but, on the contrary, showed clearly that he intended the whole estate to be kept as a “unitary fund,” and gave only the income thereof to his wife and children, the word “share” being used by a not infrequent mental process, where no share is actually given, as in Metz’s Estate, 20 Dist. R. 652. But, besides that, the probable explanation is that the testator not unnaturally supposed, as most testators do, that, in the ordinary course of events, his wife would die first, then all his children in turn, and that his children would leave issue surviving them and living at the period of distribution, in which case his estate would “descend and go according to the then existing laws” to such issue, their shares being charged with the advances made to their parents, which would be natural and proper in order to effect equality among them. The language used by the testator does not show his intention that his children should take, but merely indicates his expectation that they would. But, as the event turned out, there are no lineal descendants, so that the estate must go to collaterals under the intestate laws. Indeed, on the theory of the exceptants, if Mrs. Cotting, the only issue of the three children, were living now, she could not take, as the estate would be distributed as of the testator’s death.

We are, therefore, of opinion that the exceptions filed in behalf of the estate of the deceased widow and the estates of the three deceased children should be dismissed, and it is not necessary to consider whether, if we adopted a different construction of the will, the estate of the deceased widow should be excluded, the gift to her of income being “in lieu or bar of dower or thirds at law.” We observe, however, that the exceptions are filed jointly for the estates of widow and children, and, moreover, fail to set forth the awards that the auditing judge should have made. As we pointed out in Farrell’s Estate, No. 351 of January Term, 1919 [1 D. & C. 128], exceptions to an adjudication should set forth clearly not merely the alleged error of the auditing judge in making his award, but also his alleged error in not making the awards that the exceptant claims he should have made, i. e., that the auditing judge, to use familiar phraseology, has not only done those things which he ought not to have done, but has left undone those things which he ought to have done. Even if we agreed with the argument of the exceptants, the record would be imperfect as it stands.

Exceptions were also filed nune pro tuna in behalf of Jameson Cotting, husband and administrator of Marie Cotting, deceased, claiming that he is entitled to one-third of the principal. It was argued that if she were still living, she would be entitled to this share as the sole surviving lineal descendant of her deceased father, Henry, because her interest depended upon her surviving him, and became vested on such survivorship, payable, however, at the termination of the trust. We can discover nothing whatever in the will to support this theory of construction. All that is given her is the right to receive the income previously given to her father (subject to his testamentary appointment in favor of his widow), and this she received while she lived, and, after her death, her administrator received it, under the .prior decision in Leech’s Estate, 228 Pa. 311, so that it does not seem necessary to elaborate this feature of the case.

All of the exceptions are dismissed, and the adjudication is confirmed absolutely.


author: CARPENTER, J.,

text:
    Hanan & Son v. McGowan.

      Partnership — Family name — Fictitious names — Act of June 28, 1917.

    A partnership between father and son, not registered under the Act of June 28, 1917, P. L. 645, but continuing a lawful business under the family name, was held not within the meaning of the act, and an appeal was allowed from the County Court, where a verdict had been directed in favor of defendant.
    Petition for leave to appeal from the judgment of the County Court. C. P. Allegheny Co., April T., 1921, No. 324.
    Before Cohen, Stone and Carpenter, JJ.

      Seymour, Patterson & Siebeneek, for plaintiffs.

      Weil, Christy & Weil, for defendant.
    Aug. 4, 1921.
   CARPENTER, J.,

Being of opinion that an appeal should be allowed, we deem it proper to state some of our reasons. Plaintiff's firm consists of the three persons named in the caption, and when the transaction giving rise to this suit occurred was not registered. The Act of Assembly of June 28, 1917, P. L. 645, invoked by defendant as a legal bar to the action, reads in part as follows: “No individual or individuals shall hereafter carry on or conduct any business in this Commonwealth under any assumed or fictitious name, style or designation,” etc.

Then follow directions as to the filing of certificates, and a provision (section 3) making failure to comply with the requirements of the act a misdemeanor, punishable by a fine of $500 or imprisonment, or both. The trial judge in the County Court, being of opinion that the statute barred the action, directed the jury to find for the defendant. We are not at present prepared to say the act makes it a crime to continue business, in itself lawful, in the family name without registering, nor that the omission of the letter “s” from the firm name makes it fictitious. Nor are we persuaded that the members of a family carrying on a lawful business as a firm in the morning of June 28, 1917, became law-breakers during the day, or at the latest the next day, by the approvel of the act here pleaded in bar of plaintiff's action. To yield the drastic consequences, civil and criminal, which must result in every case in which the construction contended for by counsel for defendant prevails, the statute should speak in words too clear to admit of doubt. Counsel for defendant cites and relies upon Moyer & Carpenter v. Kennedy, 76 Pa. Superior Ct. 523, but in that case three persons having different surnames, and, except as members of the firm, strangers to each other, carried on business in the names of two. In that case Judge Trexler, speaking for the majority, says: “ ‘Moyer & Carpenter’ does contain the family names of two of the persons who purport to constitute the firm, but the name of ‘Miller,’ the third partner, does not appear. It may be argued that where the family names of all the partners appear the style or designation is not fictitious.”

But whether this argument would or would not prevail in such a case the court does not decide. Judges Porter, Head and Keller dissented, the latter writing the dissenting opinion.

We must not overlook the fact that the act adds to the calendar of statutory crimes transactions conducted by the parties thereto in perfect good faith and without thought of offending against any known law; for in such circumstances the law should not be extended a hairbreadth beyond its intendment.

In view of the facts disclosed, we do not think our conclusion conflicts with the decision of the Superior Court above cited. Rule absolute.

From Edwin L. Mattern, Pittsburgh, Pa.