author: Knight, J.,

text:
    Egan, Escheator, v. Innes et al.

      James Herbert Egan, for plaintiff.

      Elgin H. Lenhardt and William F. Dannehower, Jr., for defendants.
    July 18, 1928.
   Knight, J.,

In the above case the parties have filed an agreement that the case be tried before a judge of this court under the act of assembly in such ease made and provided.

Counsel have agreed in writing upon a statement of facts which has been filed of record and from which we state the following essential facts:

Samuel Innes was seized during his lifetime of a certain frame messuage and five lots or pieces of land, situate in the Borough of Bridgeport, Montgomery County and State of Pennsylvania, and more particularly described in deed from Henry S. Sanvill and Isadore Sanvill, his wife, to Samuel Innes, dated April 3, 1893, and recorded in the office for the Recording of Deeds in and for the County of Montgomery, in Deed Book No. 379, page 413.

Samuel Innes, being seized of the' above-mentioned real estate, died on Aug. 19, 1900, having first made his last will and testament, which was duly probated in the office of the Register of Wills of Montgomery County, and

remaining of record therein, in Will Book No. -, page - — —, wherein he provided, inter alia, as follows:

“I also give and devise unto my wife (Mary E. Innes) for and during all the term of her natural life, all my real estate wheresoever situate, she to pay the taxes thereon and keep the same in good repair. Upon the decease of my said wife, I direct my Executor, hereinafter named, to sell all my real estate at public or private sale at such time and for such prices as he shall deem good and sufficient and to that end I hereby authorize and empower him to make, execute and deliver all such deeds of conveyance as shall be necessary and requisite to grant, convey and assure the same to the purchasers in fee simple the same as I could do if living without any liability on the part of the purchasers to look to the proper application of the purchase money. The money arising from the sale of my said real estate, after deducting all necessary costs and expenses, I give and bequeath unto my heirs at law in such proportions and shares as they would be entitled to under the laws of the Commonwealth of Pennsylvania had I died intestate.”

John C. Snyder was appointed executor in the will of Samuel Innes, and died on Nov. 25, 1906, whereupon letters d. b. n. c. t. a,, were granted on Nov. 27, 1927, in the estate of Samuel Innes, deceased, to Mary E. Innes.

Mary E. Innes died Oct. 11, 1921, having no known heirs or kindred.

James Herbert Egan, Esq., was appointed eseheator of the estate of Mary E. Innes on Sept. 28, 1923.

In an action started as of No. 20, June Term, 1904, the Borough of Bridgeport filed a lien against the premises described above in the amount of $133.68 for curbing the street in front of the premises. This lien was filed against Mary Innes, widow of Samuel Innes, deceased, Hugh Innes, Harry Innes, Margaret Cunning and William Innes, heirs-at-law of Samuel Innes, deceased, and John C. Snyder, executor of Samuel Innes, deceased, owners and reputed owners. Said lien was indexed in Lien Docket No. 17, page 308.

A scire facias was issued as of No. 115, March Term, 1905,’ on March 4, 1905, and properly served on all the above parties. On April 11, 1905, judgment was entered against the defendants for want of an appearance and affidavit of defense, and damages were assessed in the sum of $133.68, which judgment was transferred to Judgment Docket G-2, page 441.

A writ of levari facias was issued on said judgment on May 1, 1905, as of No. 34, June Term, 1905, which proceedings are entered in Execution Docket No. 25, page 321.

On June 7, 1905, Edgar Matthews, Esq., High Sheriff of Montgomery County, sold the above-described real estate to Mary E. Innes for $200, and on June 17, 1905, a sheriff’s deed poll was acknowledged in open court and recorded in Sheriff’s Deed Book “S,” page 405.

By said deed the above-described property was sold by Edgar Matthews, High Sheriff, to Mary E. Innes, her heirs and assigns, for $200.

On Jan. 4, 1918, Mary Innes, as administratrix d. b. n. c. t. a. of Samuel Innes, petitioned the Orphans’ Court for leave to mortgage said real estate for the sum of $800, which leave was granted and a mortgage executed by Mary E. Innes, as administratrix d. b. n. c. t. a. of Samuel Innes, to Eliza Davis and recorded in Mortgage Book No. 724, page 249.

Mary E. Innes died on Oct. 11, 1921, and subsequent to her death Robert Innes was appointed administrator d. b. n. c. t. a. of the estate of Samuel Innes.

On April 8, 1922, the premises were exposed at public sale (by whom and upon what authority is not stated) and were knocked down to Paul Di Giacomo and Teresa, his wife, for the sum of $2505. Settlement was to be made in sixty days.

The purchasers applied for title insurance to the Penn Trust Company of Norristown, Pennsylvania, which company, in examining the title, discovered the deed from the Sheriff of Montgomery County to Mary E. Innes, and placed the same as an objection in its settlement certificate. All parties then agreed that the alleged purchasers should take possession of the property and occupy the same while the deed executed by Robert Innes, administrator d.b.n.c.t.a. of the estate of Samuel Innes, together with the purchase money, should remain is escrow with the Penn Trust Company until the question of title was determined.

As of the above term and number, James Herbert Egan, Esq., eseheator of the Commonwealth of Pennsylvania in the estate of Mary E. Innes, deceased, brought this action of ejectment against the above-named defendants.

Discussion.

The solution of the interesting and rather difficult problem presented in the above statement of facts lies in the answer to the following question: Did the sheriff’s deed to Mary E. Innes vest in her title in fee simple free from any trust in favor of the defendants or the heirs of Samuel Innes?

The Borough of Bridgeport was incorporated by Special Act of Assembly approved Peb. 27, 1851, P. L. 115. Section 18 of this act provides, inter alia,, that the burgess and town council shall have full power to pave and curb, or caused to be paved and curbed, the footways and gutters in said borough and charge the properties fronting such footways with the expense of such curbing and paving: Provided, that every owner of ground shall have the privilege of curbing and paving within ninety days after notice in writing so to do.

Section 19 of the same act authorizes the borough to collect the charges for paving and curbing by suit against the owners of the land, and, in addition, to better secure the borough, “every lot or piece of land in said borough shall be subject to a lien for all expenses for work done and material used in and about the curbing — paving of the sidewalks opposite said lot or piece of land, which shall be preferred to every other lien or encumbrance on such lot or piece of land.”

This lien continues for nine months after completion of the work, but then expires unless a claim is filed in the prothonotary’s office.

In the present case the claim was filed before the nine months’ period had expired, on which claim a scire facias was issued, which was properly served upon the executor of the estate of Samuel Innes, as well as upon all of the heirs-at-law of the said Samuel Innes, namely, Hugh Innes, Margaret Cunning and William Innes.

Judgment having been taken against all of the parties, the premises were sold by the Sheriff of Montgomery County and purchased by Mary E. Innes, the life-tenant, who received a deed from the sheriff.

We are of the opinion that the sheriff’s deed vested in Mary E. Innes a title in fee simple.

In so holding, we are fully aware of the decision of the Supreme Court in the case of Meanor v. Goldsmith, 216 Pa. 489, where the court reached a different conclusion on a somewhat similar state of facts.

In that case, howevér, the claim was filed under the General Borough Act of April 3, 1851, P. L. 320, which does not apply to the Borough of Bridgeport. The court held that the claim for constructing the sidewalk was a personal debt of the life-tenant, and the lien filed against the premises was to enforce that debt and not a proceeding strictly in rem, and, hence, bound only the life-tenant, and the sale under the judgment obtained on the lien conveyed only the life estate.

In the present case, the act creating the Borough of Bridgeport provides that the claim for'paving shall become a lien against the lot, preferred to every other lien or encumbrance.

In the Meanor case, also, the remaindermen received no actual notice of the proceeding on the claim; here, the scire facias was served personally on all of the parties that had any interest, either present or in future, in the premises.

We have not overlooked the fact that the lien shows that only the life-tenant was notified to lay the pavement and that the remaindermen never had an opportunity of complying with the demand of the borough to pave.

Such notice is a prerequisite to the acquisition of a lien by the borough (Mt. Pleasant Borough v. Railroad Co., 138 Pa. 365), and the remaindermen might have taken advantage of this lack of notice by filing an affidavit of defense to the scire facias issued on the claim, but they remained silent and allowed a judgment to be taken against them, which they are in no position to attack collaterally at the present time.

Counsel for the defendants contends, however, that even if the life-tenant obtained a title in fee simple by the deed of the sheriff, she took it impressed with a resulting trust in favor of the remaindermen.

It is difficult to see just how this resulting trust could arise. There is no evidence of any fraud on the part of the tenant in purchasing the property at the sheriff’s sale, and no one contends that it was not bought with her own money.

As life-tenant, she was not in a position of trust to the remaindermen: Fidelity Deposit Co. v. Dietz, 132 Pa. 36, cited with approval in Kirkpatrick’s Estate, 284 Pa. 583. True, it was her duty to lay the sidewalk: Hitner v. Ege, 23 Pa. 305; but even if she wilfully defaulted in the payment thereof, and the estate was lost, the only redress of the remaindermen is an action for damages: Fidelity Deposit Co. v. Dietz, supra.

Especially is this true in the present case, where all of the remaindermen had actual notice of the proceeding.

We have yet to consider the effect of the petition filed in the Ohphans’ Court on Jan. 4,1918. In this petition, Mary Innes, as administratrix d. b. n. c. t. a. of Samuel Innes, asked leave to mortgage certain premises in Bridgeport and Norristown for the purpose of making repairs. The premises in Bridgeport were the same which Mary Innes purchased from the sheriff in 1904. In this petition, Mary Innes treats the Bridgeport property as still the property of the estate of Samuel Innes, and it is now argued that the escheator, who stands in her shoes, is estopped from averring the contrary.

An essential element to an estoppel is that the person claiming it must have been induced to alter his position in such a way that he will be injured if the other person is not held to the representation or attitude on which the estoppel is predicated: 10 Ruling Case Law, 697; Diller v. Brubaker, 52 Pa. 498.

So far as the remaindermen are concerned, they have not been injured by the averments of the petition; they have not acted in any way or changed their position by reason of statements made by Mary Innes in her application to mortgage her property.

We are of the opinion that these statements do not work an estoppel in favor of the remaindermen under the will of Samuel Innes.

Turning now to the terre-tenants, Paul Di Giacomo and Teresa, his wife, it will be noted that they have had actual notice of. the claim of the escheator and of the sheriff’s deed to Mary Innes, and, in addition thereto, of course, have had constructive notice of the sheriff’s deed. They have not settled for the property and are merely in the position of conditional occupiers awaiting the outcome of the present litigation.

The statement of facts does not show that Annie Sullivan is a terre-tenant or is otherwise interested in the case.

It may have been the purpose of Mary Innes to purchase the property at the sheriff’s sale for the benefit of her husband’s estate, but this intention cannot be gathered from the record that is now before us.

We, therefore, with some regret, come to the conclusion that the title to the premises in question was in Mary E. Innes in fee simple at the time of her death, and as she died without any known heirs, it escheats to the Commonwealth of Pennsylvania.

And now, July 18, 1928, the court finds in favor of the plaintiff for the premises described in the writ.

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


source: Caselaw Access Project

author: Jones, J.,

license: Public Domain

text:
    Wilcox’s Estate.

      Edmund E. Jones, for petitioner.
    March 13, 1928.
   Jones, J.,

Petition by Ozro M. Wilcox, son of William S. Wilcox, deceased, and his children, under the Uniform Declaratory Judgments Act for a declaratory judgment as to their respective rights and interests in the estate of William S. Wilcox, under the following provision in his will:

“I will and devise to my son, Ozro M. Wilcox, the use of the farm known as the homestead farm, containing about one hundred and twelve acres, during his life, and after his death to descend to his children, share and share alike.”

This bequest was subject to certain charges, which have been fully complied with.

Can Ozro M. Wilcox convey a fee simple title by deed of conveyance to any part or all of the real estate devised in said clause without the joinder of his children in such deed of conveyance?

The question raised is the applicability of the rule in Shelley’s Case, which directs: “That whenever a man, by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs in fee or in tail, the word ‘heirs’ is a word of limitation and not of purchase; and if a fee tail, then, by virtue of the Act of April 27, 1855, P. L. 368, the estate becomes absolute.”

In Hesse’s Estate, 280 Pa. 581, it was stated that this rule is a fixed rule of law, not depending on the intention of the decedent. . . . When, from a view of the whole instrument, it is apparent that its author intended to establish a new line of inheritable succession from the first taker, and not through the writer, then the principle is controlling, even though other words be used which indicate a purpose to limit to a life estate.

There are many cases dealing with this subject where the use of phrases, such as appears in this will, has been the matter of much discussion. In the Hesse case, supra, it was said: “There are reported decisions in which it has been held that the rule in Shelley’s Case applied, and a fee passed, when the estate was given to one for life, and then to the children or legal heirs, but, in the instances referred to, it was clearly evident that those in remainder took as a new line of inheritable succession from the first taker, and not from the testator himself.” Ordinarily, however, a devise to children, either directly or in remainder, gives them an estate as purchasers, and in the Hesse case it was held that the rule had no application, because the testator gave to his son “for and during his natural life,” and after the death of the son “I give, devise and bequeath the same to his children and to their heirs and assigns forever.”

There the son and his children took through the testator, and there was no new line of inheritable succession established. That seems to' be the principle controlling in such eases.

In the case of Glenn v. Stewart, 265 Pa. 208, the testator devised as follows: “I give and bequeath to my son, James A. Glenn, his farm, with a direction that he ‘shall not alien, sell, assign, mortgage or in any manner encumber any of the lands or real estate above bequeathed to him by me during his natural lifetime, but the same shall descend to his legal heirs.’ ” In construing this clause, the court said: “The word ‘heirs’ is a word of limitation and not of purchase, . . . and the plaintiff, as the child of James A. Glenn, inherits from him and not as a devisee under the will of Walter Glenn. This thought is emphasized in the last clause above quoted, ‘the same shall descend to his (James A. Glenn’s) legal heirs. The use of the word ‘descend’ clearly makes the first taker the source of title for his heirs.”

That case is very similar to the case at bar, the only distinction being in the use of the word “children” instead of “heirs,” but in law the distinction is wiped out by virtue of the Act of 1855, supra.

In Lauer v. Hoffman, 241 Pa. 315, the language was as follows: “I give and devise to my said wife . . . my real estate, . . . she to have and to hold the same for and during the term of her natural life, . . . and immediately after the death of my said wife, I give and devise the said real estate to my only child and daughter, Susan, for and during the term of her natural life, . . . and after the death of my said daughter, the said real estate shall descend to and become vested in the children of my said daughter, should she have any, in fee simple, but in no event whatever shall the fee simple to the said real estate vest in my wife or my daughter during their lifetime or the lifetime of either of them.”

In construing this clause, it was held that it was clear that the testator intended to give his daughter but a life estate in the property, but it was also clear that, in giving her that life estate, testator intended to make her a source of inheritable succession, and she, therefore, took a fee under the unbending rule in Shelley’s Case as applied in this State, and that the remaindermen were not to take from him but from his grantee or devisee of a life estate to which he had attached an inheritable succession in his grantee or devisee.

Without any further elaboration or discussion or further reference to any other authorities, we are clearly convinced that the rule in Shelley’s Case applies and that Ozro M. Wilcox took a fee simple title to the homestead farm, and we, therefore, decide and decree that he has the right to give and grant a fee simple title by deed of conveyance to any part or all of the real estate devised to him in the will of his father.

From Frank P. Slattery, Wilkes-Barre, Pa.


author: Stewart, P. J.,

text:
    Kunsman’s Estate.

      Asher Seip and Victor J. Abel, for petitioners.

      Benjamin Neuman, for respondents.
    June 11, 1928.
   Stewart, P. J.,

This is a petition for a declaratory judgment under the Uniform Declaratory Judgments Act, approved June 18, 1923, P. L. 840. The petition sets out that Thomas F. Kunsman died intestate on Dee. 21, 1924, leaving certain children and two grandchildren, who were the only heirs of Osear F. Kunsman, who died intestate on Feb. 9, 1923; that at the time of his death Oscar F. Kunsman was indebted to his father in the sum of $9843 on two promissory notes under seal. On July 6, 1927, the administrators of Thomas F. Kunsman brought suit and recovered a judgment against the administrator of Osear F. Kunsman for $14,586.89. The administrators of Thomas F. Kunsman filed their account, an auditor was appointed and distribution was made to the heirs of Thomas F. Kunsman, excluding Oscar F. Kunsman’s two sons on account of their father’s indebtedness to the Estate of Thomas F. Kunsman. On Nov. 30, 1925, all of the heirs of Thomas F. Kunsman, including the sons of Oscar F. Kunsman, entered into a letter of attorney to the Saucon Valley Trust Company, authorizing it to sell the real estate of Thomas F. Kunsman. The real estate was sold and distribution of the proceeds was made to all of the heirs of Thomas F. Kunsman, except the two sons of Oscar F. Kunsman, and their share amounts to $3173.72, and that sum is still in the hands of the Saucon Valley Trust Company, and the indebtedness of Oscar F. Kunsman exceeds the distributive share to which the sons of Oscar F. Kunsman would be entitled. Petitioners pray that a citation should be awarded to the said sons of Oscar F. Kunsman to show cause why the said fund of $3173.72 should not be distributed in equal shares to the other heirs of Thomas F. Kunsman. To the petition an answer was filed, setting forth “that the court is without jurisdiction to enter a declaratory judgment directing the distribution of the sum of $3173.72, now in the hands of the Saucon Valley Trust Company, as attorney in fact for all the heirs-at-law of Thomas F. Kunsman, deceased.” The petition was filed in the Orphans’ Court, and the argument is made that that court has exclusive jurisdiction over the question of advancement and distribution. Hughes’s Appeal, 57 Pa. 179, and other well-considered cases are cited to that effect. That position is sound if the fund has been produced by proceedings in the Orphans’ Court. It is also true for the reasons set forth by the learned auditor in this estate that these two children of Oscar F. Kunsman were not entitled to participate in the fund before the auditor, but the fund in suit arises from the sale of real estate which the parties sold as individual owners through the Saucon Valley Trust Company. Oscar F. Kunsman never owned any of his father’s real estate, he having predeceased his father, but his children did own it, and their father’s debt was not a lien on the land which they inherited, and the recovery of judgment by the administrators of their grandfather’s estate against the administrator of their father’s estate did not make that judgment a lien on their real estate. The present case is somewhat like Wallace et al. v. Keyser et al., 51 Pa. 493. The syllabus of that case is: “An intestate died seised of real estate, leaving six children, two of whom were indebted to him on a judgment recovered in his lifetime. Judgments were recovered against the same two by three other creditors after his death. The heirs sold the land by private sale; and, in order to save the expense of judicial proceedings and to relieve the two shares from the lien of their judgments, the three creditors and the two heirs agreed that the purchase money should go into the hands of a third person, to be applied by him to the payment of their judgments ‘as far as their shares of purchase money may liquidate the same in the order of, and according to, their respective legal priorities, and not pro rata.’ Held, the debt of the two heirs to the intestate could not be taken out of the proceeds of sale before the payment of the judgment creditors. The proceeds of sale were not a fund in course of distribution, but purchase money from a private sale by the heirs, put into the hands of a third person for the use of the judgment creditors in lieu of the liens which they released. The abstract right that an heir to real estate, owing a debt to his ancestor, should take his share less the debt, is imperfect and cannot be enforced until the party or the fund comes into the power of the law.” In that case, the proceeding was by a bill in equity. The lower court dismissed the bill, and the action was affirmed by the Supreme Court-with an illuminating opinion by Mr. Justice Agnew. The same judge wrote the opinion in Hughes’s Appeal, supra. In Wallace et al. v. Keyser et al., the opinion of the lower court is very short. It is as follows: “This case is not reached by the 16th section of the Act of April 8, 1833, relating to intestates, the judgment due to decedent being simply a debt, and neither an estate by any settlement of the intestate nor advancement by him in his lifetime.” (The 7th section of the Intestate Act of 1917 is precisely the same as the 16th section of the Act of 1833, and refers both to real and personal estate.) Mr. Justice Agnew said, on page 498: “Abstractly, it is right that an heir to real estate who owed a debt to his ancestor should take his share less the debt, but the right is imperfect and cannot be enforced until the party or the fund comes into the power of the law. In an action of ejectment, if the defendant should set up an independent debt against the plaintiff to bar recovery, the equity would be precisely of the same description. But equity in this respect follows the law. By the Intestate Act, the realty descends in fixed proportions, subject to no diminution of quantity, except by advancement or settlement; and this only by a legal retrospect, constituting it a present portion of the entire estate.” The other cases cited were all cases involving the distribution of funds in the hands of executors or administrators, either of personal estate or of the proceeds of real estate sold by proceedings in the Orphans’ Court. The principle that grandchildren whose father died before their grandfather intestate, take, not paramount to their father but through him by representation, does not apply where the fund is in the hands of a mere stakeholder, as in the present case. The letter of attorney to the Saucon Valley Trust Company is recorded in Letter of Attorney Book, No. 25, page 173, and is a simple grant, of power by the owners of real estate to an attorney in fact to sell. It confers no power whatever on the trust company to pay any liens or any creditors or to decide as to the distribution. The trust company is accountable not to the other grantors, but to each grantor individually. The principle above referred to has been extended to the proceeds of real estate sold in partition (Dickinson’s Estate, 148 Pa. 142, and Hartman’s Estate, 12 Pa. Superior Ct. 69); but in the present case, just as was said in Wallace et al. v. Keyser et al., “his share being fixed by his relation and possession taken by entry, he stands on his legal right of quantity against all claims except by advancement or settlement, operating by way of qualification in the law itself which declares his proportion.” By way of illustration, if Oscar F. Kunsman had died a month after his father, leaving real estate, and the administrators of Thomas F. Kunsman had done nothing to charge that real estate, as provided by section 15 of the Fiduciaries Act of 1917, for the payment of the claim in suit, his sons would hold the land discharged from the lien of that debt; and so where Oscar F. Kunsman died before his father, and the heirs take his land by representation, they take it discharged from the claim of the administrators of Thomas F. Kunsman. The Uniform Declaratory Judgments Act is not explicit as to the court in which the petition should be filed, but the act is broad enough to include a case where the facts are like the present case, but it is a truism that the petition must be filed in the court which would have jurisdiction of the cause of action, and that would not be the Orphans’ Court. In the leading case of Kariher’s Petition, 284 Pa. 455, the petition was filed in the Common Pleas. The appellant contended that it should have been filed in the Orphans’ Court. Mr. Chief Justice Moschzisker, in his opinion, said: “In considering whether the Court of Common Pleas, rather than the Orphans’ Court, had jurisdiction to determine the above questions, it must be kept in mind that the proposed lease, while negotiated pursuant to the option contained in the original lease, was not to be executed by representatives of the estate of the original lessor, Abigail Kariher, deceased, but by three persons claiming to be present owners of the property. The Uniform Declaratory Judgments Act provides, by section 1, that ‘courts of record within their respective jurisdictions shall have power to declare rights,’ etc., and by section 2, that ‘any person interested under a . . . written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a . . . contract, . . . may have determined (by the court) any question of construction or validity arising under the instrument . . . and obtain a declaration of rights, status or legal relations thereunder.’ Since there was no effort in this proceeding to enforce against the estate of the deceased lessor specific performance of the option clause in the original lease, the proceedings being instituted, as before stated, for the purpose of ascertaining and declaring the legal right of one of the parties to the new lease, to contract, so that the appellant company, as well as the other parties to the contract agreed on, would know whether it was bound to, or could with legal safety, accept the lease in question and obtain thereunder the rights bargained for, we are of opinion that the Court of Common Pleas was the proper tribunal to adjudicate the points involved, rather than the Orphans’ Court.” The same reasoning applies here. While the decision of this case does involve the rights of the parties as heirs of Thomas F. Kunsman, yet the real matter is between the trust company and two classes of adverse claimants. While we have indicated that we think that the children of Oscar F. Kunseman are entitled to this fund from the real estate, we cannot enter a declaratory judgment to that effect.

And now, June 11,1928, petition is dismissed for want of jurisdiction, at the costs of petitioners.

From Henry D. Maxwell, Easton, Pa.


author: Marsh, P. J.,

text:
    Commonwealth v. Rice.

      Norman B. Leslie, District Attorney, for Commonwealth.

      A. B. Dunsmore and Crichton & Owlett, for defendant.
    Jan. 14, 1929.
   Marsh, P. J.,

The defendant, Walter Rice, was arrested on the charge of driving a motorbus more than thirty miles an hour.

The evidence of Patrolmen Day, Owen and Lewis proved that in Richmond Township, within one-half mile of Powers Corners, there was a marked and measured course of one-eighth mile; that on Nov. 21, 1928, the defendant operated a motorbus over this course. Patrolman Lewis testified that the bus passed over the course in twelve seconds, which would show a speed of thirty-seven and one-half miles an hour. The time was taken with a stop-watch held by Patrolman Lewis, while Patrolman Owen signalled to him by dropping his arm when the line was passed.

The Act of May 11, 1927, P. L. 886, requires that the “time shall be taken by not less than two officers, one of whom shall have been stationed at each end of such measured stretch, and no conviction shall be had on the unsupported evidence of one officer, and no such measured stretch shall be less than one-eighth of a mile in length.”

In this case the measured stretch was one-eighth of a mile in length as required, and the officers were stationed one at each end of it as directed by the statute. The time was taken with a stop-watch held by Patrolman Lewis, who was assisted by signal given by Patrolman Owen.

The only question is whether the time was taken by not less than two officers. Undoubtedly two officers participated in the taking of the time. Undoubtedly, also, only the officer holding the stop-watch actually took the time.

Was that a compliance with the true intent of the statute? Just what did the legislature mean? In requiring two officers to take the time, what certainty did it intend to assure and how? Was the purpose to avoid error in the functioning of one watch, or error in the functioning of one officer?

The rule for the construction of statutes is that courts should search out and follow the true intent of the legislature, which is frequently a difficult duty. It is not easy in the statute under consideration, for no one can certainly know what the legislature’s true intent was in declaring that not less than two officers should take the time.

That all doubts concerning the interpretation of a penal statute are to be resolved in favor of the accused, is a well known rule of construction, declared in Com. v. Exler, 243 Pa. 155, and in other cases. There are doubts concerning the interpretation of the statute invoked in the present case, and they must be resolved in favor of the accused.

And now, Jan. 14, 1929, the defendant is discharged.

From G. Mason Owlett, Wellsboro, Pa.


author: Crumrine, P. J.,

text:
    Bebout’s Estate.

      Mcllvaine & Williams, for accountant.
    March 9, 1928.
   Crumrine, P. J.,

The fifth paragraph of the will is as follows:

“Fifth. I give, devise and bequeath unto my brother, David R. Bebout, the brick house and lot on the north side of East College Street between Central Avenue and Greenside Avenue, Canonsburg, Pa., now owned by me. At the decease of my said wife, I give and bequeath unto my said brother the sum of One Thousand Dollars ($1000.00).”

David R. Bebout survived the testator, but died before the widow. The question then is, was this legacy of $1000 contingent on the brother’s surviving the testator’s widow, or was it vested with a mere postponement of the time of payment? I am convinced that there was a vesting and that the legacy in question is now payable to the executor of David R. Bebout.

The rule most frequently quoted is that a legacy is said to be vested or contingent, just as the time is annexed merely to its payment or to the gift itself: Reed v. Buckley, 5 W. & S. 517. This statement is more or less ambiguous and is difficult of application.

In Hawkins on Wills, page 223, it is said: “The only definition that can be given of the word 'vested’ in English law, as applied to future interests other than remainders, is that it means ‘not subject to a condition precedent.’ ” The condition precedent in cases like the present would, of course, be that the beneficiary must be living at the death of the life-tenant.

I know of no better and clearer discussion of the rule than that of Mr. Justice Walling in Bair’s Estate, 255 Pa. 169. In that case the testator gave everything to his wife for life or widowhood, and “on the death of my aforesaid wife,” to his children by name. One of the children died before the widow. It was said, inter alia:

“It would be unprofitable to attempt to analyze all of the authorities on this vexed question, and difficult to reconcile them. However, our conclusion appears to be fortified by the weight of authority and the better reason.

“The sound rule seems to be that quoted from 1 Fearne on Contingent Remainders (4th Amer. ed), 214, in appellant’s brief, to wit:

“ ‘For wherever there is a particular estate, the determination of whieh does not depend on any uncertain event, and a remainder is thereon absolutely limited to a person in esse and ascertained, in that case, notwithstanding the nature and duration of the estate limited in the remainder may be such as that it may not endure beyond the particular estate, and may, therefore, never take effect or vest in possession, yet it is not a contingent, but a vested remainder. ... I am the more particular on this point, from a desire of preventing the errors, which must affect our conclusions upon questions of law concerning this subject, if the uncertainty of taking effect in possession should form any part of our notion of a contingent remainder.’

“And tested thereby, this is a vested remainder, for here the termination of the particular estate depends on a certain event, to wit, the death of the life-tenant, and the remainder is limited to an ascertained person in being.

“ ‘An unpossessed estate is vested, if it is certain to take effect in possession, by enduring longer than the precedent estate:’ Manderson v. Lukens, 23 Pa. 31, 34.

“Here, the estate was bound to take effect in possession in Mrs. Bair if she survived her mother, and that seems to be the true test. The mere fact that the remaindermen may not outlive the precedent estate, so as to come into actual possession, will not, without more, render the estate contingent.”

Applying this rule to the case at bar and there can be no question of the legacy’s vesting. The legatee was “in esse and ascertained” at the time the will was made and at the death of the testator. His taking was not contingent on an uncertain happening, but on a certainty. True, the time of the. widow’s death was uncertain, but the death would occur sometime. If the legatee lived long enough, he was bound to come into possession.

This is in accord with the general intention of the testator as manifested by his will. Besides the one in question, there are twelve or more pecuniary legacies in almost the same identical words. Each begins, “At the decease of my said wife, I give, . . .” and in no case is there any bequest over in the event of a lapse. They are all straight legacies and the qualifying words clearly have to do only with the payment. Were the words “At the decease of my said wife . . .” placed after the gift instead of before in each case, no one would think of raising the question.

“The gift of a legacy under the form of a direction to pay at a future time or upon a future event is not less favorable to vesting than a simple and direct bequest of a legacy at a like future time or upon a like event. The question is one of substance and not of form, and in all cases it is whether the testator intended it as a condition precedent that the legatees should survive the time appointed by him for the payment of their legacies:” Reed’s Appeal, 118 Pa. 215.

In Chew’s Appeal, 37 Pa. 23, we have almost exactly the same words as those used here construed as creating a vested interest. See, also, Mr. Justice Mestrezat’s opinion in Carstensen’s Estate, 196 Pa. 325.

The legacy here was undoubtedly vested, did . not lapse on the death of the legatee before the widow, and will be awarded, less tax, to the legatee’s executor.

We are also asked to determine whether the gift of the residue in the 21st paragraph to “the Boards of Home and Foreign Missions of the Presbyterian Church in the United States of America, the First Presbyterian Church of Canonsburg, Pa., and the Canonsburg General Hospital of Canonsburg, Pa., share and share alike,” contemplates that a one-third share be divided between the Board of Home Missions, &e., and the Board of Foreign Missions, &e., or whether each of these boards takes a one-fourth along with the church and the hospital. The latter view seems the better. The use of the plural “boards” indicates that the testatrix thought of them as two separate organizations, which were to participate separately. Had that word been in the singular, it would have been evidence of an intention to treat them as one organization, regardless of the fact of their separate existence.

From Harry D. Hamilton, Washington, Pa.


author: Gordon, Jr., J.,

text:
    Shelbourne Mills v. Bradford Clothing Company.

      Sigmund H. Steinberg, for plaintiff; Harry Felix, for defendant.
    April 22, 1929.
   Gordon, Jr., J.,

This is an action upon an oral contract for the sale of goods of value in excess of $500, and the case is before us upon a motion to take off a non-suit. The statement of claim set up an oral sale, followed by a written confirmation or acknowledgment thereof by the plaintiff seller, and a written attempt to cancel the sale, signed by the defendant buyer. The affidavit of defense denied the making of the alleged contract of sale by the defendant, and the question presented for our determination is whether the contract in suit was evidenced by a “note or memorandum in writing . . . signed by” the defendant. According to the evidence presented by the plaintiff, one of its agents visited the defendant’s store on or about Jan. 26, 1926, and solicited an order for cloth, and, after some conversation about styles and time of delivery, the defendant gave the agent an oral order for ten bolts or pieces, containing 5361 yards, at $2.50 per yard, to be delivered between Feb. 15 and 20, 1926. This was the entire order as testified to by the plaintiff’s agent and constituted the oral contract thus made by the parties. On the following day, the plaintiff sent to the defendant a writing, which it designated an “acknowledgment of order,” in which the order as testified to by the agent was recited, and, in addition, six other terms or conditions of sale, not contained in the oral agreement, were included. The conditions thus added to the oral agreement were: (1) That the order was not subject to cancellation, except for failure to deliver in accordance with the conditions of purchase; (2) that the seller should not be responsible for late or non-delivery caused by strikes, fires or other causes beyond his control, and that the goods should not be returned, nor would allowances be made for any cause after thirty days from receipt nor after the goods were sponged or cut; (3) that all terms of the sale and deliveries were set forth in the acknowledgment; (4) that partial deliveries were to be paid for at contract rates upon maturity of bills therefor; (5) that the order was subject to a limit or withdrawal of credit determinable at any time by the seller, and (6) that it was mutually agreed that any dispute as to condition of merchandise delivered should be settled by the Mutual Adjustment Bureau of the Cloth and Garment Trades. On Feb. 11, 1926, the defendant sent to the plaintiff a letter, which read as follows:

“Dear Sir: Please cancel all goods on order, and oblige, Very truly yours, Bradford Clothing Company.” In the lower left-hand corner of this letter appeared the words “Order No. 6026,” which corresponded to the number given by the plaintiff in its acknowledgment of the order.

Upon proof by the plaintiff of the foregoing facts, the trial court entered a non-suit, which the plaintiff now moves to take off, contending that the defendant’s letter, attempting to revoke or cancel the plaintiff’s acknowledgment of the oral order, together with the acknowledgment, satisfied the requirement of section 4 of the Sales Act of 1915, which provides that no contract for the sale of goods of the value of $500 or upwards shall be enforceable “unless some note or memorandum in writing of the contract or sale be signed by the party to be charged, or his agent in that behalf.” With this contention we cannot agree. While it is well settled that, to satisfy the statute, a contract may be gathered from a series of writings passing between the parties (Manufacturers L. & H. Co. v. Lamp, 269 Pa. 517; Blair v. Turner, 168 N. Y. Supp. 660), and that an attempt in writing to revoke or cancel an oral contract satisfies the statute (Manufacturers L. & H. Co. v. Lamp, supra; Wiarda v. Independent Chemical Co., 162 N. Y. Supp. 158; Mayer v. Hirsch, 212 Ill. App. 441; Spiegel v. Lowenstein, 147 N. Y. Supp. 655), it is equally well settled that the terms agreed upon must appear somewhere in the writings exchanged by the parties (Eagle Paper Box Co. v. Gatti-McQuade Co., 164 N. Y. Supp. 201; Kronfeld v. Natelson, 187 N. Y. Supp. 449; Manufacturers L. & H. Co. v. Lamp, supra); and that a written confirmation of an oral order, which contains other and different terms from those agreed upon, may be canceled by the buyer without bringing himself within the statute: Northwestern Consolidated Milling Co. v. Allebach, 82 Pa. Superior Ct. 563. The reason for the latter rule is that, since the written confirmation does not agree with the oral contract actually made, the former is a different contract and is merely an offer, which cannot become a binding contract until accepted. It may, therefore, be rejected in any form the offeree desires without subjecting him to the risk, which the statute of frauds is designed to prevent, of having the different oral agreement, or any of its terms, enforced against him by the testimony of witnesses.

The case last cited is directly in point here. In it the Superior Court, speaking through Keller, J., said: “In the present case, a verbal order was given by defendant to plaintiff’s agent for some flour and middlings on certain terms as to price and delivery. A written order of confirmation was sent defendant for his signature. This order form changed the shipment from ‘rush’ to ‘prompt’ and contained a long string of terms and conditions (eleven in number), which it is not testified formed any part of the verbal order, and one of which sanctioned any shipment made within sixty days. Defendant wrote across the face of it, ‘Please cancel and oblige A. T. A.’ (his initials). In our opinion, this was not an unequivocal or unambiguous recognition that an oral contract had been entered into on the terms set forth in the written order; it was only a cancellation of the verbal order, not a recognition that it conformed as to terms and conditions with the written form presented for his signature: Schwarzenbach v. Schwartz, 193 N. Y. Supp. 573.”

The facts disclosed in the opinion just quoted are substantially the same as those in the case before us. The plaintiff here showed by the testimony of his witness that the oral order which the defendant gave the plaintiff merely called for the delivery between Peb. 15th and 20th of ten pieces of a certain style of cloth at $2.50 a yard, while the “long string of terms and conditions” contained in the written acknowledgment of the order formed no part of the oral order. When, therefore, they were added to it in the writing, they made the written contract materially different from that actually agreed upon; and by showing this divergence in its own case, the plaintiff cannot enforce by action the real contract, which was never reduced to writing and signed by the party to be charged.

It is true that in most of those decided cases in which it has been held that the statute has not been complied with the defect in the memorandum consisted of a deficiency in some material part of the contract, either through an entire absence of some of its terms, a variance of terms or an indefiniteness of phraseology, rather than through an inclusion of additional terms. This difference, however, does not alter the applicability of the rule that the writing must contain the true contract agreed upon, because, whether the difference be in the addition or subtraction of terms, if they should thereafter become the subject of dispute between the parties, parol evidence would be required to establish the exact contract entered into, and thus the very purpose of the statute of frauds would be defeated.

As has been frequently pointed out, the statute does not invalidate oral contracts of a value in excess of $500. Indeed, it recognizes that they exist and may be valid in all particulars. It merely provides that such contracts shall not be “enforceable by action” unless they be in writing or a note or memorandum of them be made and signed by the party to be charged. Because of this feature of the statute, the courts have been quick to seize upon any plausible excuse for holding the memorandum sufficient, and, as already indicated, have gone so far as to hold that the statute is satisfied, even where the writing which the defendant has signed is no more than a categorical repudiation of a contract by cancellation. This has been upon the theory that an attempt to cancel necessarily implies an acknowledgment that the contract was made, the only requirement being that the real terms of the contract must appear in some form in the writings passing between the parties. We are not prepared, however, to entirely vitiate the statute by taking the further step of holding that a bare attempt in writing to cancel a purely oral contract would satisfy the statute and admit parol evidence to prove its terms. While it may be conceded that a seller may, if he can, secure an enforceable contract by inducing the buyer unwittingly to sign a document referring to some memorandum of an unenforceable contract, it would seem but equitable to require the one who resorts to such a method to be careful that his memorandum shall contain only the exact terms agreed upon.

The motion to take off the non-suit is accordingly overruled.


author: Lamorelle, P. J., Lamorelle, P. J., Gest, J.,

text:
    Handy’s Estate.

      John C. Bell, Jr., for the trustees under the will of Margaret Handy Burton; H. Gordon McCouch, for the trustees of the University of Pennsylvania, to whom said Margaret Handy Burton had bequeathed the principal of the fund under her power of appointment, in case her daughter died without issue during the life of the trust; James F. Hagen, for the trustees under the will of Charles Handy, exceptants.

      William H. Trinkle, for Margaret H. Waterall, contra.
    March 11, 1929.
   Lamorelle, P. J.,

on exceptions to first adjudication quoted above,

We are all of opinion that the Auditing Judge was undoubtedly correct in his construction of the will of Henry Handy, deceased, so far as it relates to the distribution of the original share of his daughter, Margaret H. Burton, and for the reasons given by him in the adjudication of this account, and also in the adjudication of another account in the same estate audited at the same time. A majority of the court, however, are of opinion that the Auditing Judge erred in not ruling that the fund of $16,000 (as to which the daughter Margaret had but a life estate) became part of the residuary estate, and should therefore, have been awarded, one-third to the trustee under the will of Charles Handy; one-third as a part of Margaret’s trust estate to her daughter, Margaret B. Waterall, according to the adjudication upon her trust above set forth; and one-third as a part of Julia’s trust estate, according to the distribution to be made thereof in the adjudication of another account in the same estate audited at the same time.

The exceptions filed on behalf of the trustee under the will of Charles Handy, deceased, are sustained; those filed by the trustees under the will of Margaret H. Burton, deceased, and by the trustees of the University of Pennsylvania are dismissed, except so far as the former refer to the fund of $16,000, which exceptions are sustained, and the adjudication, thus modified, is confirmed absolutely.

Counsel will prepare a schedule of distribution, in duplicate, in accordance with this opinion, and present same to the Auditing Judge for his approval and annexation to the adjudication.

Van Dusen, J., dissents as to the disposition of the $16,000 fund only.

Lamorelle, P. J.,

on exceptions to second adjudication quoted above, March 11, 1929. — The court being evenly divided in opinion, the exceptions are to be dismissed.

Those of us who agree with the Auditing Judge are content to rest on his rulings, for the reasons given by him in his analysis of the clauses of the will, marked for convenience (A), (B) and (C).

As the dissenting opinion sets forth all facts, we deem it unnecessary to do more than briefly comment.

In seeking testator’s purpose, we need but insert the words “during the continuance of the trust” in clause (A) — and from the context this phrase is necessarily understood — to make clauses (A) and (B) harmonize. (A) would then read, “and if, during the continuance of the trust, either of them should die without issue, her share of income to be paid to my son, Charles Handy, and to my said daughter or stepdaughter — whichever may survive— in equal parts, and to the survivor of them; and the principal of the said two-thirds of said residue as said survivor may by any last will and testament direct, and in default of any such direction, then to the heirs-at-law of said survivor, share and share alike.”

One daughter, Julia, died during the continuance of the trust without issue, and thereupon her surviving half-sister, Margaret, along with the latter’s brother, Charles, succeeded to that share of income, and when Charles died in 1923, all income became Margaret’s. Thus, Margaret had absolute control of the disposition of the corpus, in event that she died without issue; but in fact she died leaving issue her surviving, one daughter, and thus clause (B) became effective. It reads: “If either my daughter Margaret J. Handy or my stepdaughter Julia J. Handy should die leaving issue, then in trust to hold the share of the parent during the minority of such issue and to pay the income for the support and benefit thereof, and to pay to such issue on reaching the age of twenty-one years the share of the parent in the principal sum and in all accruing interest of said residue. ...”

At the time of Margaret’s death, what was her share? The answer is obvious; all of the trust fund as to which she was then receiving the income, to wit, her original shares, plus that of her stepsister.

That there could be no doubt as to testator’s intention, he defined in terms the share of the survivor of his two daughters which the issue of the survivor would take, as “the share of the parent in the principal sum and in all accruing interest of said residue. . . .” The “accruing interest” of the residue could, to our mind, mean nothing other than what had actually accrued because of Julia’s prior decease.

In short, Margaret’s power of appointment was dependent on neither her nor Julia having issue. If either had issue, the power to appoint became inoperative, and what passed to the issue was what would have gone under the power — the shares of the two half-sisters in the residuary estate.

All exceptions are accordingly dismissed and the adjudication is confirmed absolutely.

Gest, J.,

dissenting. — The will which we are called upon to construe is very badly drawn, and its obscurity would seem to be due, in great measure, to the effort of its draftsman to condense its provisions.

Henry Handy died in 1893, and by his will devised his entire estate to his trustees in trust to pay the income to his wife Margaret during her life, and at her death (which occurred in 1904) he bequeathed $16,000 to his son Charles, and $16,000 to his trustees in trust for his daughter Margaret during her life, and then, without any specific remainders at her death, he continued, “and as to the residue, in trust to pay to my said son, Charles Handy, the full equal one-third part thereof, absolutely; and as to the remaining two-thirds of said residue, in trust to hold the same in two equal shares for and during the lives of my daughter above named and of my stepdaughter, Julia J. Handy, and to pay to them the income thereof, share and share alike, as the same shall accrue, (A) and if either of them should die without issue, her share of income to be paid to my son, Charles Handy, and to my said daughter or stepdaughter — whichever may survive — in equal parts, and to the survivor of them; and the principal of the said two-thirds of said residue, as said survivor may by any last will and testament direct, and in default of any such direction, then to the heirs-at-law of said survivor, share and share alike. (B) If either my daughter, Margaret J. Handy, or my stepdaughter, Julia J. Handy, should die leaving issue, then in trust to hold the share of the parent during the minority of such issue, and to pay the income for the support and benefit thereof, and to pay to such issue on reaching the age of twenty-one years the share of the parent in the principal sum, and in all accruing interest, of said residue; (C) but if said issue should die during minority, then to pay the said income to my surviving son, daughter or stepdaughter — whichever may survive — in equal parts, and to the survivor of them; and the principal, as said survivor may by any last will and testament direct, and in default of any such direction, then to the heirs-at-law of said survivor, share and share alike.” The letters (A), (B) and (C) are inserted by the Auditing Judge and by us for convenience of reference. Upon the widow’s death, the trustees filed their account, and, by the adjudication upon it, the Auditing Judge awarded $16,000 to Charles Handy; $16,000 to the trustees for Margaret, and the residue was awarded, one-third to Charles, one-third to the trustees for Margaret, the daughter, and one-third to the trustees for Julia, by marriage Julia H. Lincoln, the stepdaughter of the testator. Julia having died in 1917 without issue, her trustees filed an account, and by the adjudication thereon the balance was awarded to the trustees for Charles and Margaret, in accordance with sentence (A). Charles died in 1923, whereupon the entire income of Julia’s share became payable to Margaret, who had become Mrs. Burton. She died on April 30, 1928, leaving issue a daughter, Margaret Burton Waterall, and a will, in which she said, inter alia: “I hereby specifically exercise any power of appointment that may have been given to me under the last will and testament, dated Feb. 20, 1891, of my father, Henry Handy, and I do give, devise and bequeath any fund over which I may have such power of appointment unto Fidelity-Philadelphia Trust Company of Philadelphia and Charles Y. Fox, Jr., or the survivor of them, in trust to invest and re-invest the same and pay the net income therefrom unto my daughter, Margaret Burton Waterall, for a period of twenty-one years after my decease, and upon the expiration of the period of twenty-one years after my decease to assign, transfer and pay over the principal of the said fund to my daughter, Margaret Burton Waterall, absolutely and in fee,” and on the further trust, in the event of her daughter Margaret dying before the expiration of the period of twenty-one years without leaving any children or issue of deceased children, to assign, transfer and pay over the principal of the fund to the trustees of the University of Pennsylvania for the purposes mentioned. The will of Margaret Handy Burton further contained numerous pecuniary bequests, and she bequeathed her residuary estate to the trustees of the University of Pennsylvania.

The trustees have filed the two accounts now before the court by reason of the death of Margaret Handy Burton, by which the trust has terminated. The first account is filed of the assets awarded to the trustees in 1904, including $16,000 bequeathed in trust for Margaret Burton for life, and also one-third of the residuary estate bequeathed in trust for her under the residuary clause of the will. The Auditing Judge, in his adjudication on this account, awarded the entire balance for distribution to Margaret Burton Waterall. Exceptions were filed to this adjudication by the trustees under the will of Margaret H. Burton, deceased, and by the University of Pennsylvania as interested under her will, claiming that the entire balance should have been awarded to the said trustees. Exceptions were also filed by the trustee under the will of Charles Handy, claiming, with respect to the special trust fund of $16,000, that one-third of it should have been awarded to the estate of Charles Handy, deceased. The second account was filed of the assets awarded to the trustees for Charles and Margaret in 1918, after the death of Julia, being the one-third of the residuary estate bequeathed in trust for Julia under the residuary clause. The Auditing Judge, in his adjudication on this account, likewise awarded the entire balance for distribution to Margaret Burton Waterall. Exceptions were filed to this adjudication by the trustees under the will of Margaret H. Burton, deceased, and by the University of Pennsylvania as interested under the will, claiming that the balance should have been awarded to the said trustee.

1. The trust of one-third of the residuary estate for Margaret Handy Burton.

The Auditing Judge, in his adjudication upon this account, said: “Sentence (B) expressly gives Margaret’s third to her daughter, and the only doubt arises from the imperfections of sentence (A). That sentence has three possible meanings, of which one might be applicable here, to wit: That if one daughter should die without issue, there would be a power to appoint her share, and also the share of another daughter, though the latter had issue. This would be absurd, and so contradictory to sentences (B) and (G) that one of the other possible constructions must be adopted. I discuss these in an adjudication of Julia’s share filed herewith, and need not do so here.” And, accordingly, the Auditing Judge awarded the entire balance for distribution in this account to Margaret Burton Waterall.

We do not see how the Auditing Judge could have arrived at any other conclusion, in view of the clear language of the will in sentence (B), and we, therefore, unanimously dismiss the exceptions filed by the trustees under the will of Margaret H. Burton and by the trustees of the University of Pennsylvania, and Lamorelle, P. J., in an opinion filed herewith, has expressed the views of the court.

2. The trust of $16,000 for Margaret Handy.

The account to which we have just referred included not merely the one-third of the residuary estate awarded in 1904 to the trustees for Margaret, but also the $16,000 awarded in trust for Margaret Handy for her life, without express limitation over on her death. This was a separate fund and was separately awarded by Judge Ferguson in 1904. It should have been separately accounted for, and some confusion would have been avoided had this been done. As to the present disposition of this special trust fund, the Auditing Judge said: “It is claimed that there is an intestacy as to the principal of Margaret’s $16,000, of which there is no express disposition. Charles got $16,000 outright; Margaret got a life interest in $16,000; Julia got no such sum. It is very common and natural to speak of the share on which a parent is to receive income as ‘the parent’s share;’ and it would seem to me that the testator, in making this difference between his stepchild and his own children, thought of the $16,000 as part of their respective shares. It will, therefore, go in the same way as Margaret’s third share of the residue, namely, to her daughter, Margaret Burton Waterall.”

Exceptions were filed to this award by the trustees under the will of Charles Handy, on the ground that the $16,000, on the death of Margaret H. Burton, fell into the residue of the estate, and by the will of the testator should be divided into three equal shares, to one of which Charles Handy was entitled, the other two-thirds being in trust for Margaret and Julia, respectively. We are obliged to disagree with the construction placed on the will by the Auditing Judge regarding this fund of $16,000. This was left in trust for Margaret for life, but there was no express limitation over on her death, so that it must necessarily fall into the residue of the estate, not being specifically disposed of, and we can discover nothing in the will to indicate that the testator intended this to be an addition to Margaret’s interest in the residue, or a part of it. In the opinion of the majority of the court, as expressed in the opinion of Lamorelle, P. J., this fund of $16,000 should, therefore, have been awarded, one-third to the trustee under the will of Charles Handy; one-third as a part of Margaret’s trust estate to her daughter, Margaret B. Waterall, according to the adjudication upon her trust above set forth, and one-third as a part of Julia’s trust estate. The exceptions of the trustee under the will of Charles Handy are sustained, VanDusen, J., dissenting.

3. The trust of one-third of the residuary estate for Julia Handy.

The assets included in this account were originally awarded to the trustees for Julia, and on her death with sundry accretions to the trustees for Charles Handy and Margaret H. Burton.

Julia having died without issue and Charles having subsequently died, the income of this one-third share became payable to Margaret. On her death, the question arises regarding the distribution of the principal, and the Auditing Judge said in his adjudication: “The difficulty in sentence (A) arises from the failure of the draftsman to see that the devolution of principal and of income depends on different events. Income of a share may go according as the life-tenant does or does not have issue. Principal may go according to an additional event; that is, whether or not the surviving daughter also does or does not leave issue. We, therefore, have to supply some words by inference from the words used here and from other sentences. Sentence (A) has three possible meanings as to principal: 1. That if one daughter dies without issue, there is a power to dispose of both shares, though the other daughter has issue. This is absurd, and conflicts with sentences (B) and (C), and I have rejected it in disposing of Margaret’s share in an adjudication filed herewith. 2. That it gives power to appoint the share of any daughter who dies without issue. 3. That it gives power to appoint the shares of both daughters, if both die without issue, but no power at all if either should leave issue. I think the latter' is the correct construction. The testator speaks only of appointing two-thirds, and not any less share, which indicates that the appointment is to be made only of both together. In sentence (B) we find (though imperfectly expressed) the provision for the second situation, which is the one now before us. This sentence gives to the issue of a daughter ‘the share of the parent in the principal sum and in all accruing interest of said residue.’ The words italicized can hardly be intended to give ‘accrued income’ to the remainderman. That is not natural, and it occurs nowhere else in the will. In other places testator used the word ‘income’ when he means ‘income.’ It seems to me that the testator viewed the residue as a whole, and thought of the share of a life-tenant who died without issue as falling into it, and that the phrase under discussion means ‘the original share of the parent in the residue and all shares or interests, the income of which accrues to or falls into the residue by reason of the death of a daughter without issue.’ This feature distinguishes the case from Dutilh’s Estate, 286 Pa. 389, in which there is no reference to accrued shares. I will award the principal of this fund to Margaret Burton Waterall.”

Whatever was the testator’s real intention, and it must be confessed it is very difficult to extract it, it seems to us, after careful study, that its obscurity arises, as we stated, from the attempt of the testator or his draftsman to condense its provisions. The Auditing Judge says that “the testator viewed the residue as a whole and thought of the share of a life-tenant who died without issue as falling into it.” It seems to us, on the other hand, that the testator inténded to constitute two separate trusts of these two-thirds of the residuary estate. He expressly says, as to these two-thirds, “in trust to hold the same in two equal shares for and during the lives of my daughter (Margaret) and of my stepdaughter Julia, and to pay them the income thereof, share and share alike, as the same shall accrue.” What he really meant was to bequeath one-third in trust for Margaret for life, and one-third in trust for Julia for life, with remainders on the death of each, but as these limitations on the deaths of each would be similar, the testator, or his draftsman, combined them in the awkward sentences we have quoted above. When, therefore, he came to consider the distribution of the several trusts on the deaths of his daughter and stepdaughter, the contingency of their leaving or not leaving issue became all-important, and in sentences (A) and (B) he endeavored to provide for these contingencies, though in the reverse order. In (B) he directed that if “either” of Margaret or Julia should die leaving issue, then “the share of the parent” should be held in trust during the minority of such issue for their support and maintenance, the “share of the parent” in the principal sum to be paid to them on majority, and in (C) he provided for the contingency of the death of said issue during their minority, in which case the income should be paid to the testator’s son, daughter or stepdaughter and to the survivor of them, the principal to be paid as the survivor might direct by will, etc. But, according to (A), if “either” of Margaret and Julia should die without issue, he directed her “share of the income” to be paid to Charles and to Margaret or Julia, whichever may survive, in equal parts, and to the survivor of them (which, of course, means the income for life), “and the principal of the said two-thirds of said residue as said survivor may by any last will and testament direct, and in default of any such direction, then to the heirs-at-law of said survivor, share and share alike.”

The difficulty comes at this point, and, as the Auditing Judge observes, it “arises from the failure of the draftsman to see that the devolution or principal and income depends on different events,” and, consequently, as the Auditing Judge observes, we have to supply some words by inference. If the language of sentence (A) be literally interpreted, the survivor of Margaret and Julia would have a right to appoint both shares if either of them died without issue. It is easy to see the absurd consequences of such a literal interpretation. For example, if Margaret had died first leaving issue, Julia would have had the right to appoint both her share and Margaret’s to the exclusion of Mrs. Waterall, Margaret’s daughter; a result which could never have been contemplated. Legally speaking, it would be merely accidental which of the daughters should die first, and which of them, if either, should have issue. To quote the language of Chief Justice Mitchell in Fox’s Estate, 222 Pa. 108, this “would be giving (to) an accidental and irrelevant fact an effect contrary to the manifest general intent.” It is clear that the testator intended, and did in fact direct, that these two-thirds of his residuary estate should be held in two equal shares for the lives of Margaret and Julia, and it is equally clear in sentence (A) that the provision for the death of “either” without issue was intended to apply severally to both of them. The trouble arises when the testator gives to the survivor of Margaret and Julia the right to appoint the “said two-thirds of the residue,” that is, both shares, when what he really intended was to give the power of appointment over the share of the daughter who died without issue. Having, however, in his mind the possibility that both daughters might die without issue, and doubtless intending, in such event, that the power of appointment should extend to both shares, he referred to the “said two-thirds of the residue,” condensing into one paragraph what should have been expanded into two or three. If we read the words “two-thirds” as respecting the death of only one daughter without issue, that is, severally or distributively as correlative to “either” and not collectively as relating to both, the difficulty disappears.

The Auditing Judge construed sentence (A) to mean that it gave “power to appoint the shares of both daughters if both die without issue, but no power at all if either should leave issue,” which would require the interpolation of the words “if both die without issue.” The Auditing Judge further lays stress upon the gift in sentence (B) to the issue of a daughter of all “accruing interest in said residue,” but this throws no light upon the interpretation of sentence (A). It refers merely to the accruing interest of the daughter’s share of the residue, which, under sentence (B), is given to her issue; it has no reference to any accrued or “accruing” share of either daughter. Nor does the word “interest,” as used in this sentence, refer to an interest in the residue as equivalent to a share thereof. This would not be consistent with the testator’s use of the word “share” in other parts of the will.

These inconsistencies and other difficulties that might be pointed out are removed if we read the words “two-thirds” as meaning, in the event, which happened, of Julia’s death without issue and the subsequent death of Margaret leaving issue, as vesting in Margaret, as the survivor, the right to appoint Julia’s share only.

Precedents are not wanting where words have been similarly changed. It may be conceded that such an alteration may only be made in unusual cases, and, ás Jarman points out, 6th ed., 599, it must be apparent, not only that the testator has used the wrong word, but also what is the right one; but, if this be clear, the alteration of language is warranted by the established principles of construction. Numerous cases may be found in Jarman, above cited, in 40 Cyc., 1399, et seq., and in Lyle’s Estate, 4 D. & C. 67. Some of the decisions go even further than it is necessary to go in the present case, but to quote them in detail would add too greatly to the length of this opinion. The principle is clear and, on applying it here, we arrive, to use the language of Judge Gummey in McConnell’s Estate, 28 Dist. R. 647, adopted by the Supreme Court in 266 Pa. 294, “at an harmonious construction which does no violence to the remaining paragraphs of the will.”

The court, however, is equally divided upon these exceptions, which must be dismissed in accordance with the opinion filed by Lamorelle, P. J., with whom concur Van Dusen, J., and Stearne, J. Gest, J., Henderson, J., and Thompson, J., dissent, being of the opinion that the balance for distribution in the trust for Julia should have been awarded, under the power of appointment vested in Margaret H. Burton and exercised by her, to Fidelity-Philadelphia Trust Company and Charles Y. Fox, trustees under the will of Margaret H. Burton, and that their exceptions and the exceptions of the University of Pennsylvania should be sustained.


author: Kosejk, J.,

text:
    Wolfe v. Burleigh, Treasurer.

      W. L. Jones and Richard B. Sheridan, for plaintiff.

      D. O. Coughlin and B. W. Davis, for respondent.
    June 14, 1928.
   Kosejk, J.,

The Town Council of the Borough of Luzerne is composed of eight members, four of whom, to wit, Cornelius Boyle, John Lukish, Frank Layou and Joseph Nemetz, were old members whose terms had not expired, and four new members, to wit, Michael Utter, Melvin Frantz, Louis Marinos and Simon Zurenski, who were elected at the election of November, 1927, for a four-year term.

Jan. 2, 1928, the council, consisting of the eight members above mentioned, together with the burgess, Fred Banta, met to organize in the council room of the Borough of Luzerne. The new members presented their certificates of election and oaths of office. The burgess, Fred Banta, presided at the meeting. Layou, one of the eouncilmen, objected to receiving the certificates of election and oaths of office of Utter and Frantz, on the ground that they were not residents of the borough. The burgess sustained the objection and refused to recognize them as eouncilmen and refused to allow them to vote in the organization of the council. Thereupon the remaining six eouncilmen, with the burgess presiding, proceeded to organize. Layou and Nemetz were nominated for president and each received three votes. Whereupon Burgess Banta cast his vote for Layou and declared him elected president. In like manner Gruía and Sobeck were nominated for secretary and each received three votes. Thereupon Burgess Banta cast his vote for Gruía and declared him elected secretary. W. W. Burleigh was elected treasurer without opposition.

On Jan. 3, 1928, at a regular meeting of the said town council, of which meeting all the eouncilmen had notice, five of the eouncilmen, namely, Michael Utter, Melvin Frantz, Louis Marinos, Joseph Nemetz and Simon Zurenski, organized by the election of Nemetz as president, Sobeck as secretary and Burleigh, respondent herein, as treasurer; and the said elected officers duly qualified and assumed the duties of their offices. The members present at this meeting constituted a majority of the council. Boyle, Lukish and Layou did not attend this meeting. Subsequently, at a regular meeting of the said town council on Feb. 7, 1928, with members Frantz, Utter, Marinos, Nemetz and Zurenski present, the said Joseph P. Nemetz presiding, the town council, by motion duly passed and appearing on the minutes, approved and passed the bill of W. L. Wolfe, amounting to $7.75, for coal sold and delivered to the borough and directed that an order be drawn on the trasurer for that amount.

In pursuance of said resolution of the council of Feb. 7, 1928, an order in favor of the said W. L. Wolfe for $7.75 was drawn, signed by the said Joseph Nemetz as president and George S. Sobeek as secretary, and delivered to the said W. L. Wolfe.

W. L. Wolfe endorsed said order properly and presented the same to W. W. Burleigh, treasurer of the said Borough of Luzerne, and requested payment thereof, but the said W. W. Burleigh, treasurer as aforesaid, refused to pay said order.

Upon the refusal of W. W. Burleigh, treasurer of the Borough of Luzerne, to pay the order above referred to, W. L. Wolfe petitioned the court for a writ of mandamus, directing the said W. W. Burleigh, treasurer of the Borough of Luzerne, to pay said order. An answer was filed by W. W. Burleigh, treasurer of the Borough of Luzerne, either admitting the facts above mentioned or not denying the same. In the said answer the treasurer says that he is unable to determine which council is the rightful one, and, therefore, refuses to pay the order of either out of the borough funds.

To the answer of the said borough treasurer of Luzerne, the plaintiff, W. L. Wolfe, filed a demurrer, contending that nothing set forth in said answer, even if true, would constitute sufficient cause why a peremptory writ of mandamus should not issue to compel the defendant to perform his duty, as required by the allegations of said petition.

We do not deem it necessary to decide whether or not the organization meeting held on Jan. 2, 1928, was legal, but, in passing, we desire it understood that the burgess had no legal right to refuse to accept the certificates of election and oaths of office of the members of the council who had been elected at the November election of 1927.

In Kerr v. Trago, 47 Pa. 292, Lowrey, C. J., said: “In all cases of this kind, at least in all bodies that are under law, the law is, that where there has been an authorized election for the office in controversy, the certificate of election which is sanctioned by law or usage is the prima, facie written title to the office and can be set aside only by a contest in the forms prescribed by law. This is not now disputed.”

This was approved in Goldsworthy et al. v. Boyle et al., 175 Pa. 246.

The only question for us to decide is whether or not the majority had a legal right to elect new officers at the regular meeting on Jan. 3, 1928.

Article vi, section 4, of the Constitution of Pennsylvania provides: “That appointed officers, other than the judges of the court of record and the superintendent of public instruction, may be removed at the pleasure of the power by which they have been appointed.”

If the president and secretary of the town council are appointed officers within the meaning of this clause of the Constitution, they may be removed at the will of the appointing power.

We are of the opinion that officers, such as president, secretary and treasurer of borough councils, are appointed within the meaning of article vi, section 4, of the Constitution of Pennsylvania, and that the council, at the meeting held on Jan. 3, 1928, had a legal right to elect other officers. See Com. v. Heinze, 43 Pa. C. C. Reps. 222; Howell v. Keeler, 23 Luzerne Legal Reg. 73; Richie v. Philadelphia, 225 Pa. 511; Seltzer v. Fertig, 237 Pa. 514; Lane v. Com., 103 Pa. 481; Com. ex rel. v. Likeley, 267 Pa. 310; Com. ex rel. v. Kelley, 2 D. & C. 797; Ulrich v. Coaldale Borough, 53 Pa. Superior Ct. 246.

Now, for the reasons herein stated, the demurrer is sustained and a peremptory writ of mandamus is directed to issue, commanding and requiring the defendant, W. W. Burleigh, treasurer of the Borough of Luzerne, to forthwith pay the order of W. L. Wolfe.

From Frank P. Slattery, Wilkes-Barre, Pa.


author: Wilhelm, P. J.,

text:
    Stapay’s Estate.

      T. C. Condr.on, for accountant.

      Edgar W. Downey, for Consul General of Republic of Poland, representing non-resident heirs.
    Oct. 22, 1928.
   Wilhelm, P. J.,

From th© evidence, we find the following facts:

1. Theodore Stapay died on or about Oct. 5, 1918, testate, married, leaving to survive him Mary Stapay, his wife, and Paravene Stapay, his daughter.

2. It is unnecessary to consider the provisions of the will, because it appears that Theodore Stapay was a sojourner in this State, and was not a citizen of the United States, but his domicile was in Poland, where his wife and daughter reside and have always resided.

3. The balance for distribution arises from personal property and amounts to $882.07, against which no claims have been presented.

4. This balance is distributable according to the laws of the domicile of the decedent, and the Consul General of the Republic of Poland at New York presents a claim'for said balance for the purpose of transmitting the same to the legally-constituted authorities of the Republic of Poland for distribution according to the laws of Poland.

It is proper, therefore, for the court not to attempt a distribution, not-' withstanding the decedent executed a will before his death, which has been probated. '

5. The balance in the hands of the accountant, together with all increase thereof by reason of income received since the filing of the account, should be and is awarded to the Consul General of the Republic of Poland at New York for the purpose of transmission to the legally constituted authorities of the Republic of Poland for distribution.

The court having examined and audited said account, the same is confirmed absolutely and the balance in the hands of the accountant, to wit, $882.07, together with all increase thereof by reason of income received since the filing of the account, is awarded to the Consul General of the Republic of Poland at New York for the purpose of transmission to the legally constituted authorities of the Republic of Poland for distribution.

From M. M. Burke, Shenandoah, Pa.