author: Patterson, J.,

text:
    Warrington v. Brooklyn Trust Company, Trustee.

      Wills — Mistake—Correction of misdescription of subject of devise — Bill to remove cloud on title.

    1. Courts cannot decree reformation or correction of a will, even for the purpose of making it conform to the intention of the testator, unless such an intent can he inferred from the instrument as executed, or unless the language of the will is ambiguous.
    2. Where a will has been admitted to probate, equity will not attempt to reform it by correcting a mistake therein, as the probate is a judgment of a court of competent jurisdiction that the instrument as written is the last will and testament of the testator; under well-settled principles, such a judgment cannot be attacked collaterally.
    3. To give a court of equity jurisdiction to take cognizance of and construe or interpret a will, there must be an actual litigation in respect to a matter which is the proper subject of the jurisdiction of a court of equity as distinguished from a court of law.
    4. The jurisdiction of a court of equity to entertain a bill of peace to remove a cloud from the title to real estate should only be exercised where the interest to be protected is equitable, or where, if the estate be legal, there is no adequate remedy at law.
    5. A bill in the nature of a bill to remove a cloud from the title of real estate, under the above principles, cannot be entertained to correct a devise of clearly described property by striking out the description and inserting the description of another property, although the testatrix did not own the property described in the will, did own the property whose description is sought to be inserted, and the mis-description was due to the mistake of the scrivener; especially is this true if the will has been admitted to probate in another court.
    Bill to remove cloud from title. C. P. No. 1, Phila. Co., Dec. T., 1920, No. 5688.

      Evans, Forster & Wernick for plaintiff; H. A. Hoefler, for defendant.
    Oct. 31, 1921.
   Patterson, J.,

On Sept. 14, 1919, the will of Mary E. Brown, deceased, of the Borough of Brooklyn, City of New York, was duly admitted to probate and an exemplified copy filed in the office of the Register of Wills of Philadelphia County.

Section 4 of said will provides: “IV. I give, devise and bequeath unto my friend, Mary T. Warrington, now of 3518 Springgarden Street, Philadelphia, Pennsylvania, my real estate and property known as Nos. 1208, 1210 and 1212 South Carlisle Street, Philadelphia, Pennsylvania, and also the sum of Twenty-five hundred dollars.”

The bill filed by the complainant, in addition to averring the above facts, alleges that Mary E. Brown, the decedent, never owned premises No. 1208 South Carlisle Street, but was the owner, at the time of her death, of Nos. 1204, 1210 and 1212 South Carlisle Street, and no other real estate on South Carlisle Street.

In sections 8, 12 and 18 of the bill it is averred:

“8. That your orator believes, and therefore avers, that it was the intention of the said testatrix, Mary E. Brown, to devise to your orator said premises, 1204 South Carlisle Street, and that the number 1208 was inserted in said will instead of the number 1204 through a mistake of the scrivener.

“12. That since paragraph four of the said will does not mention 1204 South Carlisle Street, the same being omitted therefrom, so your orator believes, by mistake, there is a cloud on her title.

“18. That your orator is without adequate remedy at law.”

The prayer for relief is as follows: “(a) That, pending this bill, the said defendant be especially until hearing and on final hearing perpetually restrained from selling or mortgaging or otherwise disposing of said premises. (b) That title to said premises, No. 1204 South Carlisle Street, Philadelphia, described as aforesaid, be decreed to be in your orator. (c) General relief.”

It will thus be seen that this is practically a bill to reform or correct an instrument admitted to probate as a will.

When the cause came on for hearing, counsel for complainant offered the testimony of Richard T. Greene, a member of the New York bar, who is the executor of the decedent’s will, and who also prepared the will. He testified to the effect that the decedent called upon him for the purpose of having her will drawn; that she informed him that she wished to devise her three Car-lisle Street properties to her friend, Mary T. Warrington, the plaintiff in this case; that he, under her direction, did in fact dictate the terms of Mrs. Brown’s will to the stenographer; that inadvertently, through an error on his part in dictation, or through an error on the part of the stenographer in transcribing the dictation, the number “1208” was written in the will in the place of the number “1204;” that the will was subsequently executed by the decedent in his office; that he was familiar with the properties owned by Mrs. Brown, and that she did not, at the time of making her will, or at any other time, own the property number “1208” South Carlisle Street.

The defendant’s counsel objected to the admission of such testimony.

The law of Pennsylvania in regard to the reformation of wills has been stated thus:

“In the construction of wills, the great general and controlling rule is that the intent of the testator shall prevail. And by his intent is meant his actual intent. It is often said, as in the language of Weidman’s Appeal, 42 Legal Intell. 338, quoted by our brother Green in Hancock’s Appeal, 112 Pa. 532, and cited by appellant, ‘The question in expounding a will is not what the testator meant, but what is the meaning of his words.’ But by this it was never intended to say that the testator’s meaning, when apparent, can be disregarded, but that it cannot be got at aliunde by what he might have meant, or even what, under the circumstances, perhaps he would have meant, but only by what he said. The search is confined to his language, but its object is still his meaning:” Woelpper’s Appeal, 126 Pa. 562 (1889). See, also, Best v. Hammond, 55 Pa. 409; Appel v. Byers, 98 Pa. 479; Willard’s Estate, 68 Pa. 327; Hancock’s Appeal, 112 Pa. 532; Myers v. Myers, 16 Pa. Superior Ct. 511; Hunter v. Hunter, 37 Pa. Superior Ct. 311 (1908).

In numerous reported eases it has been held that courts cannot decree the reformation or correction of a will even for the purpose of making it conform to the intention of the testator, unless such an intent can be inferred from the instrument as executed, or unless the language used in the will be ambiguous. Amongst the reasons given are the following: (1) Because the testator has passed beyond the jurisdiction of all earthly courts; (2) because a will is a voluntary conveyance, and even if the court had jurisdiction of the testator, it could not compel him to make a will of any sort; (3) because the statute of wills provides for the devolution of property by wills actually made, and not by those parties intended, however definitely, to make, but did not make.

After a will has been admitted to probate, there is still another reason why a court of equity should not attempt to reform it by correcting a” mistake therein, and that is because the probate is a judgment of a court of competent jurisdiction that the instrument, just as it is written, is the last will and testament of the testator. On well-settled principles, such a judgment should not be attacked collaterally.

While the judgment of the New York court admitting Mary E. Brown’s will to probate remains in force, this court, in the absence of fraud, should not attempt to adjudge the instrument, or any of its provisions, to be other than the will of the testatrix. Neither should we be permitted to add provisions not written in the will, or change or strike out any provisions which may be already there. If we have any jurisdiction at all, it should be merely for the purpose of construing the terms of the will as made by the testatrix, in so far as it affects property in this jurisdiction.

While the bill prays for general relief, it is clear from its allegations that the present proceeding was brought solely for the purpose of having the fourth clause of the will reformed by the court, and thus determine the question of title to certain real estate.

The first question, therefore, to be determined is whether or not this court has jurisdiction in the case as made by the complainant.

The reported decisions are not in accord as to the reason why a court of equity will exercise jurisdiction to interpret and enforce the provisions of a will. Some hold that such jurisdiction is merely an incident to its general jurisdiction over trusts; that it will not exercise its powers to construe a will which deals only with, and disposes of, purely legal estates or interests in land, and makes no attempt to create any trust relation in respect to the property devised. Others hold that its jurisdiction arises from the complicated character of the provisions of the will, from the difficulty of understanding its meaning, and from the doubt and uncertainty as to the rights of the parties claiming under them. See 3 Pom. Eq. Jur., 1155 to 1157, and cases cited; 2 Am. & Eng. Dec. in Eq., 687, 690, and cases there cited. The prevailing doctrine in this country seems to be that, in order to give a court of equity jurisdiction to take cognizance of, and to construe or interpret, a will, there must be an actual litigation in respect to a matter which is the proper subject of jurisdiction of a court of equity as distinguished from a court of law. Such is our view.

Pomeroy, in discussing this question, says (§ 1156) that “the doctrine which seems to be both in harmony with principle and sustained by the weight of authority is that the special jurisdiction to construe wills is simply an incident of the general jurisdiction over trusts; that a court of equity will never entertain a suit brought solely for the purpose of interpreting the provisions of a will without any further relief.”

The Pennsylvania cases cited by complainant in support of his assertion that, “in regard to mistakes in a will, there is no doubt but that the courts of equity had jurisdiction to correct them,” are all Orphans’ Court cases dealing with wills probated in Pennsylvania.

True, it is alleged in the bill that there is “a cloud on the complainant’s title,” but the facts relied upon to support this contention fail to show any such condition.

“A cloud on the title” is some outstanding claim, or encumbrance, which, if valid, would affect or impair the title of the owner of a particular estate, and which apparently and on its face has that effect, but which can be shown by extrinsic proof to be invalid or inapplicable to the estate in question.

In the opinion of this court there is no cloud on the title to property No. 1204 South Carlisle Street.

All that the complainant alleges in her bill is that she believes that it was the intention of the testatrix to devise said premises to complainant and that, notwithstanding this, the defendants claim title to said premises, therefore, there is a cloud on her title.

She further avers that she is without adequate remedy at law. Surely this cannot be so. The sole question involved is one of ownership. The complainant is, or is not, the owner of No. 1204 South Carlisle Street through and by the will of Mary E. Brown. A bill of peace to remove a cloud from a title is not the proper remedy here, for there is no cloud. The jurisdiction to remove clouds from titles is exercised on the principle of quia timet, i. e., where the instrument constituting the cloud may be used to injuriously or vexatiously embarrass or affect a plaintiff’s title. There is no instrument constituting any cloud in the matter now before us. The trend of the cases would seem to indicate that jurisdiction should only be exercised (1) where the interest to be protected is equitable; or (2), if the estate be legal, then only when there is no adequate remedy at law. In the case before us the plaintiff does not claim an equitable title to the land. It is a legal title which she claims. To vindicate her claim she has a full and adequate remedy on the law side of the court.

While it is true that the defendants have not raised the question of jurisdiction in this proceeding, yet it is well settled that every court has the judicial power to determine such a question, and may do so of its own motion, even though the question has not been raised by the pleadings.

The bill is, therefore, dismissed, at the costs of the complainant.


source: Caselaw Access Project

author: Gest, J.,

license: Public Domain

text:
    Farrell’s Estate.

      Charities — Gift for masses distinguished from gift to individual.

    1. A gift by testatrix imps consiM, of all money which remains over her debts to her nephew, a priest, “in remembrance of my soul,” she having, in the same instrument, left legacies expressly for masses for herself, is a gift to the nephew as an individual, and, hence, is not a gift to charities within the act of assembly.

      Practice, O. C. — Exceptions—Standing of accountant.

    2. An accountant is without standing to file exceptions to the distribution directed by the adjudication; he has no interest in the distribution, and exceptions thereto must be filed by the next of kin.

      Exceptions — Verification—Orphans’ Court Rule III, sect. 7.

    S. A failure to have exceptions filed by an accountant verified, as required by Rule III, § 7, may result in their dismissal without consideration of the merits.

      Exceptions — Error to he set forth clearly.

      4. 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 which the exceptant claims he should have made.
    Exceptions to adjudication. O. C. Phila. Co., Jan. T., 1919, No. 351.

      M. J. McEnery, for exceptions; F. S. Cantrell, Jr., contra.
    Dec. 30, 1921.
   Gest, J.,

The will of the testatrix presented no difficulty, but the codicil, after sundry bequests for charitable and religious purposes, provided : “All the money that left over after all dets are paid is to bee given to my Nephew J. A. Genshimer in remembrance of my Soul.” This codicil, which was written by the testatrix inops consilii, as may be imagined, was not witnessed, and it was urged, in behalf of the next of kin, that the above bequest was given for masses for the repose of the soul of the testatrix, in which case, not being duly attested, it would be invalid under the act of assembly: Rhymer’s Appeal, 93 Pa. 142. As the testatrix was a member of the Roman Catholic Church, and her nephew was a priest, the argument is not without some plausibility, or rather would be so, were it not for the fact that the testatrix, in the same instrument written by her, gave two other legacies expressly “for masses for me.” The conclusion is irresistible that whatever the testatrix may have meant by the curious phrase “in remembrance of my Soul,” she did not mean that the residue was given for masses. The auditing judge was, therefore, undoubtedly correct in awarding the residuary estate to the personal representatives of the nephew, who is now deceased.

The exception should also be dismissed for the further reason that it is filed by the executor, who, as such, has no interest, and not by the next of kin: Powell’s Estate, 3 Lehigh Co. L. J. 115; and, moreover, even if the executor had any status in the matter, the exception is not under oath, as required by our Rules of Court III, § 7. We call the attention of the bar to this rule, which is too frequently violated, and disregard of it may result in a dismissal of exceptions so filed, without the consideration of the merits which we have given to this case.

We add further that the only exception filed is to the award made by the auditing judge of the residue of the estate to the representatives of the estate of J. A. Genshimer, but there is no exception setting forth any alleged error of the auditing judge in not awarding the estate to certain persons who are the next of kin. 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 the exception as filed were sustained, there could be no award of the residue to the next of kin on the record before us.

The exceptions are dismissed and the adjudication confirmed absolutely.


author: Thompson, J.,

text:
    Spangler’s Estate.

      Wills — Construction—When “either” may not he construed “each.”

    Where testator, in bequeathing the principal of a fund on the death of his wife and half-sister, directs that such devolution is to take effect “on the death of either of them or both of them,” and in a subsequent paragraph bequeaths to his wife’s niece $1000 for her education, and then directs that “on the death of either my half-sister or wife” said niece shall receive the sum of $5000 additional out of the principal of the share of the one so dying, the word “either” is used disjunctively in the latter paragraph; and the niece having received $5000 on the death of the widow, is not entitled to another $5000 on the death of the half-sister.
    Exceptions to adjudication. O. C. Phila. Co., Oct. T., 1897, No. 477.

      Duane, Morris & Heclcscher, for excepant; Arthur Littleton, contra.
    Jan. 20, 1922.
   Thompson, J.,

Testator died Aug. 31, 1897, leaving a will duly proved, wherein he provided as follows:

“Sixth. I give and bequeath to my wife’s niece, Tillie P. Coulter, whom I have raised and educated, the sum of One thousand Dollars ($1,000); and I do further direct that on the death of either my half sister or wife, the said Tillie Coulter shall receive the sum of Five thousand Dollars ($5,000) additional out of the principal of the share of the one so dying before any distribution shall be made as has been hereinbefore directed.”

The widow having elected to take against the will, upon the filing of the first account of the trustee, her election was held equivalent to her death, and the $1000 and $5000 legacies mentioned in the above paragraph were awarded to Tillie P. Coulter. Bertha E. Adams, the half-sister of testator, referred to in the above paragraph, died May 26, 1920, and upon the filing of the present account by the trustee claim is made that Tillie P. Coulter is entitled to an additional $5000, on the theory that the word “either” in the above paragraph should be construed to mean “each.” The auditing judge rejected the claim, and, in doing so, we think he gave a correct interpretation of the will.

The word “either” is defined in Webster’s International Dictionary as follows: “One of two; the one or the other; properly used of two things, but sometimes of a larger number, for ‘any one.’ ” Also, “each of two; the one and the other, both; formerly, also, each of any number.” It is “introductory to an alternative; it is correlative to ‘or.’ ”

And in Oxford English Dictionary: “Each of the two;” “used of both persons and things;” “sometimes=each (of more than two things);” “one or other of the two;” “sometimes — any one (of more than two) ;” “used to connect more than two terms;” “introducing the mention of alternatives:” “As an alternative, ‘which way you please;’” “in negative or interrogative sentences : Any more than the other.”

And in the Century Dictionary and Cyclopedia: “Being the one or the other of two, taken indifferently, or as the case requires: ” “being one and the other of two; being both of two, or each of two, taken together, but viewed separately;” “each of two; the one and the other;” “a disjunctive conjunction preceding one or a series of two or more alternative clauses and correlative with ‘or’ before the following clause or clauses.”

And in Anderson’s Dictionary of Law: “One or the other of several things; but sometimes one and the other. . . . May be used, as in a statute, in the sense of ‘any.’ ”

And in Bouvier’s Law Dictionary: “May be used in the sense of ‘each.’ ”

And in Words and Phrases Judicially Defined: “As ‘any;’” “as ‘both;’” “one of any number.”

There is, therefore, ample authority for the use of the word “either” in both a disjunctive and conjunctive sense. The ingenuity and industry of counsel have produced numerous examples to this effect, as shown in their briefs, all of which are interesting; but we are not concerned with the manner in which the word is used by other persons. The question before us is: How did the testator use the same? In our opinion, he used it in the disjunctive sense, as is shown by the use of the word “or” correlative thereto in the sixth paragraph of the will; furthermore, in the third paragraph, where he uses the same word in speaking of the same persons (his wife and half-sister) , he says, “on the death of either of them, or both of them, the principal, . . .” etc. It will thus be seen that when testator used the word “either” in the sixth paragraph, he meant one of two, and in the third paragraph, where he uses it, he follows it with the word “both,” evidently thinking that the use of the word “both” will prevent the word “either” from being construed in the disjunctive; but in the sixth paragraph there is no such supplementary word explanatory of the word “either,” which in that paragraph testator plainly intended to be a disjunctive, thus showing that the testator realized that “either” might not mean “each” or “both,” unless expressly so stated, which express statement is lacking in the sixth paragraph.

For the reasons above given, the exceptions filed to the action of the auditing judge are dismissed, and the adjudication is confirmed absolutely.


author: Ross, J.,

text:
    Kopp v. Bashline.

      Fixtures — Personal property attached to real estate — When such property becomes fixtures — Intention of vendor of real estate to treat personal property as fixtures — Question for the jury.

    1. Plaintiff sold and conveyed a mansion-house and lot to A, and left therein certain chandeliers, electroliers and lighting fixtures incident to the building, which were specially purchased for it and connected with it at the time it was built by plaintiff, and used and enjoyed by him while he occupied it for nine years. These articles were not mentioned in the deed, but they constituted a necessary part of the lighting system, and corresponded wüth the interior arrangement and color scheme of the various rooms. A sold and conveyed the real estate to defendant, and, after the payment of the consideration money, plaintiff notified defendant that the articles above referred to were his property and had not been included in his conveyance to A. He requested defendant to deliver them to him or to permit him to remove them. Defendant refused, claiming they belonged to him; whereupon plaintiff brought suit for damages for trover and conversion: HeM, it was a question for a jury whether or not plaintiff intended the articles to become part of the real estate and to pass by the conveyance of the property to A. If such was plaintiff’s intention, then the articles passed to defendant under the conveyance by A, and plaintiff could not recover.
    2. Under these circumstances plaintiff’s intention to sell the articles to A would be presumed, but this presumption could be rebutted by evidence of a contrary intention.
    3. The controlling intention was not the secret design which might have dwelt in the mind of the plaintiff and of which he alone could speak, but the intention, which flowed, apparent to all, from the character of the fixtures for permanency, the mode of their annexation, and the clear purpose to be served, the manifest relation which the fixtures bore to the realty, and the visible effect of their severance therefrom.
    Motion for new trial. C. P. York Co., Jan. T., 1919, No. 66.

      Cochran, Williams & Kain, for motion; Samuel Kurtz, contra.
    June 20, 1921.
   Ross, J.,

After a trial by jury and verdict for the defendant, the plaintiff filed the following motion:

“And now, Sept. 21, 1920, the court are respectfully moved to set aside the verdict and grant a new trial in the above case for the following reasons:

“1. The verdict was against the law and the evidence.

“2. The verdict was against the weight of the evidence.

“3. The court erred in their answer to the plaintiff’s first, second and fourth points.

“4. The court erred in their answer to the defendant’s fourth, fifth and sixth points.

“5. The court erred in certain portions of their general charge.

“6. The court erred in overruling the plaintiff’s offers of evidence.

“7. The court erred in admitting in evidence certain offers of the defendant.

“The right to file other and more specific reasons is hereby reserved until the stenographer’s notes shall have been filed.

“(Signed) Cochran, Williams & Kain.”

The suit was in trespass, in the nature of trover and conversion.

The plaintiff’s statement alleged, in substance, that the plaintiff, on and prior to Oct. 25, 1915, owned a tract of land, situate partly in Springfield Township and partly in Hellam Township, York County. There was a brick mansion-house erected on said tract of land, and the plaintiff resided therein. In said mansion-house there had been placed certain chandeliers, electroliers and lighting fixtures, more fully described in a list attached to the statement as “Exhibit A,” which were used for lighting said mansion-house with gas and electricity. That he, the plaintiff, owned certain storm doors, used by him during the winter for the purpose of protecting said mansion-house from cold; and a range and copper boiler, used by him for the purpose of cooking and providing a supply of hot water in and for said mansion-house.

On Oct. 25, 1915, he (the plaintiff), with Emma Rebecca Kopp, his wife, granted, bargained and sold the said real estate to Charles Reider.

On April 1, 1918, the said Charles Reider granted, bargained and sold the said real estate to the defendant, O. O. Bashline.

The statement also alleged that “with the knowledge and consent of the said Charles Reider, the articles mentioned in the-paragraphs hereof remained in the said mansion-house at and after the conveyance of the said real estate by the plaintiff to the said Charles Reider.”

After the conveyance of said real estate by the said Reider to the said Bash-line, defendant, plaintiff caused notice to be given to the defendant that the said articles mentioned in the statement were the property of the plaintiff, and had not been sold or delivered by him to the said Charles Reider, and requested that said articles be delivered to him (the plaintiff), or that he be granted permission to go upon the premises to take possession thereof.

The defendant failed and refused to deliver said articles to the plaintiff or to grant the plaintiff permission to go upon the premises to take possession thereof.

The damage claimed by plaintiff was based on “the cause of action” as set forth in the first and last paragraphs of the statement, and as expressed by plaintiff’s counsel at the trial, “for the use and retention of the articles by the defendant.”

All specific allegations by the plaintiff in the statement that the articles sued upon had not been included in the conveyances and sales of the real estate by plaintiff to Reider, and by Reider to the defendant, were specifically denied by the defendant’s affidavit of defence.

The affidavit of defence avers that the property referred to in the plaintiff’s statement are fixtures which were annexed to the mansion-house by the plaintiff himself as part of the permanent service system therein, and, by reason of their adaptation to use in and about, and physical annexation to, the said mansion-house, became inseparably connected therewith, and as such, in the several mutations of title, passed as a constituent part of the real estate to which annexed.

The real issue made by the pleadings and contest at the trial was: The claim by the plaintiff for damages from the defendant for the retention and use of the articles or personal property enumerated in the statement; the claim by the defendant that those articles passed into his custody and ownership by the sale and conveyance of the property from Charles Reider by agreement dated January, 1918, and by deed dated April 1, 1918, offered in evidence by plaintiff as exhibits Nos. 4 and 5.

The evidence offered by the plaintiff was intended to prove that nothing had been sold by the plaintiff to Charles Reider except the real estate described in the deed of Kopp and wife to Reider (offered and admitted in evidence as plaintiff’s exhibit No. 8), and that the articles of agreement between the said Charles Reider and the defendant, dated January, 1918 (admitted in evidence as plaintiff’s exhibit No. 4), and the consequent deed by Reider to the defendant, dated April 1, 1918 (admitted in evidence as plaintiff’s exhibit No. 5), gave title to the defendant to nothing but the real estate described in said deeds and agreement; that the articles enumerated in the plaintiff’s statement of demand were personal property and were not so attached to the real estate described in the deeds of conveyance as would make them such fixtures as would pass with the real estate.

The undisputed facts show that the articles in question were delivered with the real estate described in the deeds of conveyance and article of agreement, and were things incident to the building described as a mansion-house, having been specially purchased for, and connected with, the said mansion-house at the time it was constructed by the plaintiff for the purpose of the plaintiff’s use and enjoyment of them in the mansion-house while he occupied it. Yet the plaintiff contends that no special agreement having been made with Reider at the time he took the possession and custody of the articles, together with the delivery of the real estate, these articles being mere personal property, did not pass with the real estate. Consequently, the defendant continuing to retain and use them after the plaintiff had given him notice, as averred in the statement, paragraph 11, he, the defendant, was liable to plaintiff in damage.

The basis of the plaintiff’s motion for a new trial seems to be his theory that the deeds and written agreement, by which the land and mansion-house (the real estate) left the custody and possession of the plaintiff, was the only evidence the defendant possessed of his ownership of the articles in question, and that those instruments of writing were to be construed by the court as conclusive evidence that the articles claimed by the plaintiff were not conveyed or sold to Reider or to the defendant because the said written instrument did not specifically mention them, and, therefore, it was incumbent on the defendant to prove some specific agreement which would pass the title from the plaintiffs to him before he, the defendant, could have a right to use said articles.

When we review the plaintiff’s statement of claim and testimony offered by the plaintiff at the trial, the fallacy of that theory is apparent.

The 10th paragraph of the statement was that “with the knowledge and consent of the said Charles Reider, the articles . . . remained in the said mansion-house, . . . but the said Charles Reider claimed no ownership or control over the same or any part thereof.”

This paragraph was expressly denied by the defendant’s 10th paragraph of his affidavit of defence, and wherever the plaintiff’s statement referred to the articles as not having been conveyed to Reider, such references are denied by the affidavit of defence. (See paragraphs 8 and 9.)

The plaintiff offered the deeds and article of agreement in evidence for the purpose of sustaining the issue on the part of the plaintiíf; “for the purpose of showing that the real estate . . . came into the ownership of O. O. Bash-line, the defendant; all for the purpose of showing the actual transactions between the time of the ownership of the real estate by Mr. Kopp and its acquisition by Dr. Bashline, the defendant.” (See stenographer’s notes, pages 10, 11, 12, 20, 21, 25, 26.)

This affirmative position having been denied by the defendant, the burden of proving it was placed upon the plaintiff. It will be observed that Charles Reider was not called to support the allegation made by plaintiff in the 10th paragraph of the statement, and no other evidence was adduced which would directly support it. The evidence of the plaintiff showed that when the mansion-house was constructed, the articles in question were “installed” by him (page 4, &c., of stenographer’s transcript) in the mansion-house which “was built for a permanent residence,” and he “placed those fixtures into this mansion-house at the time it was first built in 1905 and 1906.” They were “selected for use in this particular mansion, with reference to type and design, to correspond with the interior arrangement and color scheme of the various rooms [in which] they were to be used,” and were used by plaintiff and family from 1906 up to the time he conveyed the land to Mr. Reider in 1915. They “constituted a necessary part of the lighting system which he had introduced into that mansion-house, without which the lighting system would have been rendered practically useless.” (Stenographer’s transcript, page 36.)

The admission [was] made by the plaintiff, on page 28 of stenographer’s transcript, “that at the time of the delivery of the deed ... by Charles Reider to O. O. Bashline, there was no other agreement, except the deed itself, regarding the chandeliers, electroliers and lighting fixtures, the storm door and the range and copper boiler which are the subject of the present controversy.” “For the purpose of explaining the res gestie, all the transactions leading up to the alleged conversion” clearly indicate that the case was being tried by plaintiff on the principle of law that has been enunciated as follows: “In case of grantor and grantee, if it be shown that the property is adapted to the use being made of the real estate and is attached thereto, it will be presumed that it was intended to become a part of such real estate; but such presumption may be overcome by showing that the owners of the property treated it as personalty during the time it was being used in connection with real estate: ” Snuffer v. Spangler, L. R. A., 1918, E, page 149, notes.

The above case from the Supreme Court of West Virginia cites the case of Vail v. Weaver, 132 Pa. 363, as illustrative of the rule.

The same rule seems to have controlled the efforts of the defendant in combating the plaintiff’s claim for damages, and the judge presiding at the trial was certainly controlled by that principle in his rulings and charge to the jury.

The fourth point submitted by the defendant for the court to charge the jury was as follows: “The criterion by which the jury are to be governed in determining whether the property in suit are permanent fixtures or not is the character of the fixtures for permanency, and the intention of the plaintiff to annex for permanent use at the time said fixtures were first put into the building.”

The defendant’s fifth point was as follows: “The intention which thus becomes controlling is not the secret design which may have dwelt in the mind of the plaintiff, and of which he alone can speak, but the intention which flows, apparent to all, from the character of the fixtures for permanency, the mode of their annexation, and the clear purpose to be served, the manifest relation which the fixtures bear to the realty, and the visible effect of their severance therefrom.”

These two points were affirmed by the court, and the affirmation is part of the fourth reason alleged by*the plaintiff as a basis for his motion for a new trial.

In our view of the case, the points were drawn in strict conformity with the law as laid down in Hill v. Sewald, 53 Pa. 271; Seeger v. Pettit, 77 Pa. 437; Benedict v. Marsh, 127 Pa. 309; Wick et al. v. Bredin et al., 189 Pa. 83.

The sixth point affirmed for the defendant is covered by the same principle.

The plaintiff’s fourth reason for a new trial is, therefore, dismissed.

The plaintiff’s requests, which were not affirmed by the court, are equivalent to binding instructions for the plaintiff and were properly refused by the trial judge. The facts under all the pleadings and testimony were for the jury.

The plaintiff’s third reason for new trial is, therefore, dismissed.

All the other reasons assigned for new trial are too general for any specific answer, and for that reason must be dismissed.

It is true that the brief submitted to the court at the argument on the motion for a new trial referred to certain pages of the stenographer’s transcript which contained what the defendant claimed were objectionable rulings or evidence, but there are no specific errors pointed out. This mode of practice is very severe on judges who have to review evidence for the purpose of ascertaining the real discontent of the objector. We will, however, in this case, endeavor to answer the uncertain objections as guided by the plaintiff’s brief.

The first observation in the brief is as follows: “In all of the proceedings before the court counsel for the defendant has confused the law of ‘fixtures,’ which is a part of the law of real property, with the law which should govern the case. And ... in its rulings on the evidence, in its charge to the jury and in its answers to points, the court fell into the same error.”

The brief then endeavors to verify these rather uncertain propositions by arguing, first, “that the plaintiff owned the lighting fixtures, storm door, range and copper boiler on and prior to Oct. 25, 1915, and defendant came into possession of these articles, used them and claimed them as his own.”

That is a fair and honest synopsis of the facts in the case, as far as it goes, but there were other circumstances in the evidence submitted by both the plaintiff and the defendant which must have impressed the jury.

The second argument in support of the advanced propositions is the following conclusion: “Under these circumstances, the only title to the articles in controversy that could possibly have been obtained by the defendant must have come through the instruments of writing introduced in evidence, namely, the deed of Oct. 25, 1915, from Mr. Kopp to Charles Reider (Exhibit No. 3, pages 12 and 20); the agreement of January, 1918, between Mr. Reider and Dr. Bashline (Exhibit No. 4, pages 21-23), and the deed of April 1, 1918, from Mr. Reider to Dr. Bashline (Exhibit No. 5, pages 26-28).” A study of the transcript of the proceedings at the trial and the pleadings in this case cannot but reveal the sophistry of that reasoning.

In presenting his case to the jury, the plaintiff not only proved the deeds of conveyance which legally carried the real estate from his ownership, title and control into the title and possession of the defendant, but he affirmatively proved that the articles now in question were made fixtures to that real estate at the time he first took possession of it as his domicile or “mansion-house.” That said articles had been selected and affixed with the special design of making the surroundings enjoyable in the dwelling, and they were necessary for the proper habitation of the said mansion-house. When the real estate was deeded to Reider, the possession of the whole house, with the equipment it contained, particularly the fixtures in question, was delivered altogether to the custody and control of Reider. In his custody and possession this real estate, including the fixtures, remained unchanged for a period of more than two years, when it was evidently viewed by the defendant with his intention of purchase. At that time the articles evidently were affixed to the premises as they were at the time Reider took possession of the premises by right of title to the real estate. It was not explained to the defendant that any of these fixtures were not intended to be a part of the real estate; it was not to be denied that Reider had retained them just as they were for over two years, and when the defendant bound himself to purchase the real estate in writing at a stipulated price, Reider delivered into his possession without reservation the whole premises, with the fixtures, just as it had been presented to his view as an inducement to purchase. After thus getting into posesssion of the real estate, mansion-house, with its fixtures, and using and enjoying all for his own purposes, lie fulfilled his contract to purchase and received his technically drawn deed for the conveyance of the title thereof. Not until that deed of conveyance had been delivered to defendant, and his payment of the full amount of the consideration had been definitely secured, did the plaintiff ever intimate to the defendant that he claimed the fixtures annexed to the mansion-house which he deeded and conveyed to Reider.

All these circumstances were directly brought out by the evidence, affirmatively submitted to the jury by the plaintiff.

It was evident that the hypothesis upon which the defendant rested his defence is the principle of law announced by the Supreme Court of Pennsylvania, that “as to all articles not so intimately connected with the freehold as to become essentially a part of it, the intention — not the mere physical fact of their connection with the realty — is the criterion of annexation. But the ‘intention’ which thus becomes controlling is not the secret design which may dwell in a party’s mind and as to whose existence he alone can speak, but that ‘intention’ which was either expressly declared by the parties competent to make it the governing rule, or which flows, patent to all, from the nature and character of the act, the clear purpose to be served, the manifest relation which the articles bear to the realty, and the visible consequences of their severance upon the proper and obvious use of it:” National Bank of Catasauqua v. North, 160 Pa. 303.

Upon this principle the trial judge based his rulings in the general admission of evidence, and expressly charged the jury that “the test as marked out by the law is that, in determining whether personal property — and these things are personal property; these things enumerated in the plaintiff’s claim are personal property — in determining whether personal property has become a fixture and part of the land, it is not the character of the physical connection with the realty which constitutes the criterion of annexation, but it is the intention to annex and identify the property with the realty.”

Again, in the charge the jury was told: “As I said before, you will take all the circumstances of this case, remember them in detail carefully. You will remember the building of the house as detailed to you by the plaintiff himself, the purchase of these things for the use of which damage is claimed by the plaintiff, the placing of them in the house as he described to you, and as has been described to you by other evidence, the character of the articles, their comparison with the surroundings and the premises, the price he paid, the manner in which he turned them over to the purchaser of the real estate, Charles Reider, the manner in which they were turned over by Charles Reider to the present defendant, O. 0. Bashline, and see whether the preponderance or weight of the evidence convicts your mind that the intention was to make those articles a part of the realty. But if the weight and preponderance of the evidence does not convict your mind that the intention of the plaintiff, at the time he affixed these articles to the realty, was to make them a part and parcel of the realty, then, of course, your duty would be to render a verdict for the plaintiff.”

Under the decisions, we do not think the charge of error made by the plaintiff against the defendant and the trial judge can be justified.

It is true that in a case stated, where, by the facts peculiar to the particular controversy, the former owner of the house, which had been levied upon by the sheriff under an execution and sold, removed such articles as he claimed were personal property belonging to him before he removed from the house, it was decided that “gas fixtures, such as chandeliers and side brackets, put up and attached to the gas-pipes by the owner of the premises, are mere personal property, not fixtures in the proper sense of the term, and do not pass by a sheriff’s sale of the real estate:” Vaughen v. Haldeman, 33 Pa. 522.

And “ ‘gas fixtures,’ as distinguished from ‘gas fittings,’ are not the subject of a mechanic’s lien under the Act of April 14, 1855, P. L. 238,” and that “the sale of a house in general terms will not include the gas fixtures in it; to pass them with the house there must be a special agreement:” Jarechi et al. v. Philharmonic Society, 79 Pa. 403.

In that case “the only matter in controversy (was) as to whether the class of materials designated under the general name of gax fixtures, and the labor of putting them in place, can be the subject of a mechanic’s lien.”

The theory of the defence in the case at bar, and the rulings of the trial judge, were not in conflict with the principles announced by those cases, but were rather in harmony therewith, for the charge of the court expressly notified the jury that the articles in controversy were personal property, and if the proven facts and circumstances did not show that they were annexed to the real estate with the intention of making them part thereof, the verdict should be for the plaintiff. The principles announced in the cases just cited are still followed, as we understand the law, where the facts go no farther than did the facts of those particular eases; but the same rule is adhered to in another announcement of the Supreme Court in a line of eases which seem to state the same principle under different circumstances. In Voorhis v. Freeman, 2 W. & S. 116, Chief Justice Gibson stated that “the criterion of a fixture in a mansion-house or dwelling is actual permanent fastening to the freehold, but this is not the criterion of a fixture in a manufactory or mill.”

In Hill v. Sewald, 53 Pa. 271, the Supreme Court said: “It is not the character of the physical connection with the realty which is the criterion of annexation. The intention to annex, whether rightfully or wrongfully, is the legal criterion.”

In Seeger v. Pettit, 77 Pa. 437 (which was a controversy between landlord and tenant), the Supreme Court said: “In determining what are removable fixtures, the criterion is the intention to annex, not the character of the physical annexation to the realty.”

In considering the appeal, Mr. Justice Paxson, referring to the facts, said: “The matter of fixtures should have been left to the jury as a question of intention. Instead of doing so, the learned judge applied the law to certain facts of the case.” For that reason the judgment was reversed.

In Wick v. Bredin et al., 189 Pa. 83, the Supreme Court again announced the principle: “In determining whether personal property has become a fixture and part of the land, it is not the character of the physical connection with the realty which constitutes the criterion of annexation, but it is the intention to annex and identify the property with the realty.”

The same doctrine was announced in McClintock & Irvine Co. v. Ætna Explosives Co., 260 Pa. 191, and Exler v. Wickes Brothers, 263 Pa. 150.

As was said by Mr. Justice Mercur, in rendering the opinion of the Supreme Court in the case of Darrah v. Baird, 101 Pa. 265, 273: “Fixtures are not goods and chattels for all purposes. They are not unless made so by the tenant’s severance, or for the benefit of his execution creditors. While they remain attached, they are part of the freehold.”

As early as 1835 it was ruled that: “Even as between landlord and tenant, fixtures erected by the latter and which he is entitled to remove must be removed during the term; after the expiration of the term, the tenant can neither remove them nor recover their value from the landlord:” White v. Arndt, 1 Wharton, 91.

This doctrine is maintained in this State (Radey v. McCurdy, 209 Pa. 306), and followed in other states: Sanders v. Sutlive Bros., 6 A. L. R. 1503, and notes (g), 1513.

In determining whether or not “fixtures” similar to the articles in question in the case at bar are part of the reajl estate, the intention of the person putting them in place was to be considered and submitted to the jury: Harmony Building Ass’n v. Berger, 99 Pa. 320; Benedict v. Marsh, 127 Pa. 309; Vail v. Weaver, 132 Pa. 363.

Those authorities, we think, fully sustain the theory upon which the defendant rested his ease and the manner in which the controversy was left to the jury.

There is no doubt but that the articles in question might have been properly considered personal property by the original owner, but he did not treat them as such when he turned them over to Reider, or during the term of Reider’s dominion over them, or at the time Reider turned them over to the defendant, or during the three months of the defendant’s dominion over them under the lease of January, 1918, and the reasonable presumption would be that the fixtures were delivered as a part of the mansion-house, which was a part of the real estate conveyed by deed. Being necessary fixtures, under all the circumstances, his declaration of a secret intention could not avail, but his intention necessarily, under the facts, became a question for the jury to decide.

As we have before said, the damage sued for in this suit was in the nature of a penalty for trover and conversion of the personal property of the plaintiff. The issue made by the pleadings denied that the plaintiff owned the articles which the statement claimed. The proof required from the plaintiff was to show to the satisfaction of the jury that the title to the articles remained in him. He failed to do that, and his technical reasons advanced in support of his motion for a new trial do not seem sufficient to sustain the motion: Darrah v. Baird, 101 Pa. 265; Overton v. Williston, 31 Pa. 155.

Motion and rule for new trial discharged.

From Richard E. Cochran, York, Pa.


author: Henninger, J.,

text:
    Parsons v. Bradford.

      Equity practice — Jurisdiction attacked in limine by demurrer — Act of June 7, 1907.

    Where, in a bill in equity, the claim of the plaintiff is for damages for breach of a contract for the delivery of stone, and an allegation of fraud and a request for an accounting are only incidental thereto, upon a demurrer filed, setting up adequacy of the remedy at law, the cause will be certified to the law side of the court under the Act of June 7, 1907, P. L. 440.
    Demurrer to bill in equity. C. P. Lehigh Co., Jan. T., 1921, No. 2.

      Grim, & Grim, and Dewalt & Heydt, for plaintiff.

      C. William Fried and Francis J. Gildner, for defendant.
    June 6, 1921.
   Henninger, J.,

In the above case a bill in equity was filed in the Court of Common Pleas of Lehigh County on Nov. 22, 1920, by the plaintiff, complainant. The defendant, on Dec. 13, 1920, filed a demurrer, and in the sixth and seventh paragraphs thereof avers and pleads as follows:

“6. If there is any liability whatsoever from the defendant to the plaintiff on the contract on which this suit is brought, the plaintiff has a full, adequate and complete remedy at law.

“7. If there is any liability whatsoever to the plaintiff of and from the defendant on the contract on which he seeks the relief as prayed for, such contract shows that the plaintiff is not entitled to equitable relief, but that plaintiff thereunder has a full, complete and adequate remedy at law for any alleged breach thereof.”

The court has carefully examined the allegations in the plaintiff’s bill of complaint and the agreement thereto annexed and marked Exhibit “A.” The court has reached the conclusion as a matter of law from such an examination that the claim of the plaintiff against the defendant is to be recovered by an action in assumpsit for damages for breach of contract. An incidental allegation of fraud and a request for an accounting do not take the case away from the law side of the court. The claim is for damages for breach of a written contract, modified in some particulars by parol. The plaintiff has an adequate remedy at law, and the court decides in limine that equity has no jurisdiction upon the bill and demurrer filed in the case, as the plaintiff has an adequate remedy at law.

In reaching this decision, the court was guided by the principle of law enunciated in the following cases here cited:

In the case of Holland v. Hallahan, 211 Pa. 223, 225, Fell, J., rendering the opinion, decides as follows: “Equity will take jurisdiction on the ground of account, notwithstanding that the accounting involved is on one side only, if it is complicated as seriously as to embarrass the remedy at law and in cases where discovery is needed and is sought. But it will not take jurisdiction where there is no relation of trust and the accounting is not complicated and is merely a basis for ascertaining damages: Gloninger v. Hazard, 42 Pa. 389; Grubb’s Appeal, 90 Pa. 228; Pittsburgh & Connellsville R. R. Co.’s Appeal, 99 Pa. 177; Graham v. Cummings, 208 Pa. 516. Jurisdiction has been taken in eases where the accounts were not mutual, but ascertainment of the amount due involved the examination of the whole business of the defendant, as where an agent was entitled to a share of the net profits of a business as compensation for service, or the owner of a patent was entitled to a share of the profits derived from the manufacture and sale of a patented article by his licensee. But our cases have not gone further than to hold that a bill by an agent or employee for commission or salary will be sustained where the amount due is uncertain and to be determined by ascertaining the profits of a business, or the accounts are so complicated as to make it impossible to obtain an intelligent result by a jury trial. If we went further than this, we should have difficulty in finding a logical stopping place.”

In the case of Koch & Balliet’s Appeal, 9 W. N. C. 343, 346, Sterrett, J., in delivering the opinion of the court, decides:

“Assuming, then, that appellants neglected and refused to work the mines with reasonable diligence, it is very clear that the appellees had a complete and adequate remedy at law for the recovery of such damages as they may have sustained.

“There was no allegation of fraud, accident or mistake in the procurement or execution of the agreement, nor was there anything alleged or shown that would justify a mandatory order on the appellants, requiring them to proceed and prosecute the work of mining within a specified time, on pain of forfeiting their rights under the agreement. Nor could it be justly claimed that proceeding in equity, a multiplicity of suits would be avoided. While the agreement remains in force, the right of action must necessarily depend on breaches of its provisions, and, non constat, that any will occur hereafter. The only claim that has been made and sustained with any degree of success is the demand for damages resulting from a breach of the agreement, and for that there was no doubt an adequate remedy at law. Where proper ground for equitable relief is laid and sustained, and jurisdiction has thus attached, courts of equity will proceed to award compensation or damages when they are incidental to such relief, but not otherwise. We think the conclusion reached by the master in both of his reports, that the bill should be dismissed, was correct.”

The decision in the case of Strause v. Berger, 220 Pa. 367, by Fell, J., states the principle of law involved as follows: “On the question of jurisdiction, the case is near the border-line. The general rule undoubtedly is that the specific performance of contracts for the sale of personal property will not be enforced for the reason that ordinarily compensation for the breach of the contract may be had by way of damages. A well-recognized exception to the rule is where the thing contracted for cannot be purchased in the market, and, because of its nature or the circumstances, the delivery of the thing itself, and not mere pecuniary compensation, is the redress practically required: McGowin v. Remington, 12 Pa. 56. ‘The general rule is not to entertain jurisdiction to decree a specific performance respecting goods, chattels, stocks, choses in action and other things of a merely personal nature; but the rule is qualified and is limited to cases where the compensation in damages would furnish a complete and satisfactory remedy:’ Notes to Cuddee v. Rutter, 1 Lead. Cases in Eq. 1099. Ordinarily, a complete remedy may be had in an action at law for the breach of such a contract as that under consideration, but in this case we have the finding that the timber had a special value to the plaintiff for the use for which he bought it, because of its quality and because of the difficulty of procuring such timber in the locality in which his business was conducted. The case does not differ in principle from that of Vail v. Osburn, 174 Pa. 580, where a contract to cut and deliver bark to a tannery from trees in proximity to it was enforced.”

In the case of Pittsburgh & Connellsville R. R. Co.’s Appeal, 99 Pa. 177, Green J., after stating the facts of the case, files the following opinion:

“Returning to the consideration of the principal contract involved in this controversy, we find that the injury complained of is the non-payment of moneys which would be due to the plaintiffs if the defendant continued to maintain and work the line. For the time that it was working according to the agreement, the moneys actually received were in good faith divided. The plaintiffs have no ownership of the telegraph line. They have no right to participate in working it. The defendant has the exclusive right to take the earnings, and when they are received, they are the sole property of the defendant. After their receipt arises the obligation to pay to the plaintiffs a sum equal to one-half of the amount received. Surely this is but a bare pecuniary obligation, the breach of which is fully and adequately compensated by a recovery in damages of the amount which ought to be paid.

“And so, also, if the defendant fails to carry on the business according to the agreement, and by reason of such failure does not receive the moneys which would have come to hand had the business actually been conducted, here, again, is but a breach of contract which can be compensated in damages. In either or any aspect of the case, therefore, the remedy of the plaintiffs is adequate and ample by action at law. In the present case there is no element of specific performance, and a decree to that effect could not have been made if it had been asked. No such prayer, however, is contained in the bill. There is no matter of fraud, mistake, accident, trust, discovery or mutual account in the bill or in the case, and, hence, we are unable to perceive any species of equity jurisdiction upon which a decree can be founded. The only accounting that can enter into the case is unilateral, and even that is only a basis for ascertaining damage. The authorities applicable to the controversy are quite familiar, and only a brief reference to a few of them is required. In Gloninger v. Hazard, 42 Pa. 389, 401, we said: ‘There is no doubt of our concurrent jurisdiction with courts of law in matters of account, where the accounts are mutual and complicated, and also where they are all on one side, but discovery is sought and is material to the relief. . . . But, on the other hand, where the accounts are all on one side and no discovery is sought or required, courts of equity will decline taking jurisdiction of the cause.’ See, also, 83 Pa. 441; Kauffman’s Appeal, 55 Pa. 383. A complainant averred that he agreed to sell a lot to the defendant, he to pay at the same rate as he paid others, and that lie paid others at a rate which he refused to pay to complainant, and prayed for specific performance. Held, that the agreement was simply for the payment of money, and complainant had an adequate remedy at law: Koch & Balliet’s Appeal, 9 W. N. C. 343. Where a right to mine is granted in consideration of a royalty reserved, the law implies a covenant by the grantee to work the mine with diligence, so that the grantor may receive the contemplated compensation; but, in the absence of special grounds of equity jurisdiction, such covenant will not be specifically enforced in equity, an action at law for damages being an adequate remedy. See, also, Grubb’s Appeal, 90 Pa. 228.

“It is unnecessary to prolong the citations. We are of opinion that the plaintiffs have an adequate remedy at law, and that there are no special grounds of equitable relief exhibited. In such cases there is no jurisdiction in equity to entertain the complaint or make any decree.”

The plaintiff in his bill, by paragraph 8, makes the short averment as follows:

“8. That the same kind and quantity of stone caimot be purchased by the plaintiff in the upon market.”

The word “upon” no doubt is a clerical error and should be “open.” Nowhere in the bill does the plaintiff allege the business he is engaged in, nor for what purposes the stones were to be used by him; nor are the quality of the stones to be quarried mentioned in the bill. The agreement itself, which is the foundation for the plaintiff’s bill in equity, is silent on these matters. The statement contained in the eighth paragraph of the plaintiff’s bill is the allegation of a conclusion without the statement of any facts from which the conclusion is arrived at. The construction of the terms of the agreement is for the court; but the facts in relation to the breach of the contract is a matter of fact to be submitted to a jury. And if there was a breach, the measure of damages and compensation should, under instruction of law by the court, be determined by a jury. We are of the opinion that the plaintiff has a full and adequate remedy at law.

Decree.

And now, June 6, 1921, this cause came on to be heard at this term and was argued by counsel, and, upon consideration thereof, it is ordered, adjudged and decreed that this cause be certified to the law side of the court, at the costs of the plaintiff, in accordance with the provisions of the Act of June 7, 1907, P. L. 440.

From James L. Schaadt, Allentown, Pa.


author: Wilhelm, P. J.,

text:
    Williams’s Estate.

      Practice, O. C — Partition—Adverse possession — Sending issue to Common Pleas.

    Where an answer to a petition for partition sets up possession adverse to petitioner, and the depositions taken in behalf of the respondent make a good prima fade case, the proper practice is to award an issue and let the jury pass upon the facts.
    Petition for partition. O. C. Schuylkill Co.

      R. P. Swank, for petitioner; J. H. Garrahan, contra.
    July 25, 1921.
   Wilhelm, P. J.,

Thomas W. Williams died Aug. 22, 1889, testate, leaving a last will and testament, wherein he bequeathed to his wife, Mary Ann Williams, her heirs and assigns, all his property as long as she “will bear his name.” Upon the death of Mary Ann Williams, all his property remaining was direeted to be equally divided between all of the children of Thomas W. Williams and Mary Ann Williams, and Ann Williams, child of Thomas W. Williams, and Sophie Williams is given an equal share with all the other children of Thomas W. Williams and Mary Ann Williams, who are named in the will as Margaret Jane Williams, William Thomas Williams, Gwennie and Ruth Williams.

The will further provides that the property is to be in the hands of his beloved wife, Mary Ann, as long as she bears his name, and in case of her intermarrying again, she is to take a child’s share.

From the death of Thomas W. Williams, Mary Ann Williams, his widow, had possession of his real estate until the date of her remarriage to Harry Lewis in the year 1894. After her marriage to Harry Lewis, she continued in possession of the real estate down to the time of her death, which occurred on Oct. 18, 1919, a period of about twenty-five years.

Ann Williams, who appears to be a child of a former marriage between Thomas W. Williams and Sophie Williams, and who by will is given an equal share with the other children of Thomas W. Williams and Mary Ann Williams, married Lincoln Millward, became the mother of two children, who died in infancy, and Ann Millward died in the year 1894, leaving to survive her her husband, Lincoln Millward, who claims to be a tenant by courtesy of the interest of his wdfe in this real estate.

Lincoln Millward has presented his petition, praying for a partition of the single piece of real estate possessed by Thomas W. Williams in his lifetime, and situate in the Borough of Mahanoy City, and secured a citation to issue, requiring Gwennie Jenkins to come into court and show cause why an inquest should not be awarded according to law. It appears that Gwennie Jenkins, in the year 1920, acquired the interest of Ruth Morgan, William Williams and Margaret Jones in the said real estate by virtue of a sheriff’s deed, dated Oct. 26, 1920, upon an execution issued on a judgment, wherein the First National Bank of Frackville was the plaintiff and Ruth Morgan, Gwennie Jenkins, William Williams and Margaret Jones were the defendants.

No answer was filed to the citation, and on March 7, 1921, an inquest in partition was awarded, and on April 16th the inquest was held and the property was appraised at $4000.

Before the inquest was held, to wit, on April 11, 1921, Gwennie Jenkins filed her petition, praying that the inquest in partition awarded should be vacated and set aside upon the ground that the petitioner, Lincoln Millward, has neither the possession nor the right of possession of said real estate, and that she, the respondent, claims the entire title and right of possession of the premises, and is holding the same adversely to the said Lincoln Millward and all other persons.

Testimony was taken of the answer, and it appears from the answer and the testimony that Mary Ann Williams, notwithstanding her marriage to Harry Lewis in 1894, continued in possession of the real estate, received all the rents, issues and profits accruing therefrom, occupied, used and enjoyed the premises, paying the- taxes and repairs thereon without rendering any account to the petitioner or any other person, and she continued in the enjoyment of said premises down to the time of her death, which occurred in the year 1919; and it appears that the occupancy of the premises by Mary Ann Lewis, formerly Williams, was uninterrupted and exclusive during said time; that she never made any accounting to Lincoln Millward or any other person, and that Lincoln Millward never made any demand upon her for an accounting, or for any portion of the rents, issues and profits from said real estate.

Gwennie Jenkins, therefore, asserts that the possession of Mary Ann Lewis, formerly Williams, continued uninterrupted for twenty-five. years without any recognition of Lincoln Millward’s title, and that said uninterrupted possession, together with the receipt of the income from the real estate and the payment of taxes and repairs, are sufficient to raise a natural or legal presumption of ouster, such as would' defeat the right of partition in Lincoln Millward until his title to any interest in the real estate has been passed upon by jury.

On the other hand, it is asserted that the occupancy of the widow of the . real estate was not adverse to her co-tenants, because she bore the name of her husband to the time of her death; therefore, was entitled to the exclusive occupancy of the premises under the terms of the will.

It appears the widow did not live with Harry Lewis for any considerable period after her marriage, and that neighbors and friends addressed her as Mary Ann Williams, and she assumed the name of Mary Ann Williams and was known by that name generally, both in a social and business way; and from these facts it is asserted that the widow bore the name of the testator, notwithstanding her marriage to Harry Lewis; therefore, the character of her occupancy of the real estate was not changed when she remarried. This position is hardly tenable, because the testator himself, in a subsequent clause in the will, defines just what he means when he says “she bears his name,” by following that expression with the words, “and in case of her intermarrying again, then she is to have but a child’s share,” which clearly indicates that the testator intended, upon her remarriage, that her enjoyment of the whole of his property should cease and her interest therein should be cut to a share equal to that of his children. It follows, therefore, the interest of this widow in the real estate was changed by her remarriage, and her right to enjoy the whole of the property ceased with her remarriage, and her occupancy of the whole of the property was in violation of the terms of the will, and, prima facie, adverse to the other parties in interest from the year 1894 to the time of her death.

It appears the court is not concluded by the respondent’s claim of title by adverse possession, and it has the power to receive and look into testimony, as was done in this ease, not for the purpose of determining the title of the several parties, but far enough to ascertain whether the claim of adverse and exclusive possession has any foundation in fact. The denial of tenancy in common by an heir of the decedent on the return of the writ of partition, with an assertion of title in himself by adverse possession, will not be sufficient to require suspension of the proceedings, but the court may hear evidence upon the claim asserted, and if it be sufficient to justify submission to a jury, may award an issue.

In considering the sufficiency of the acts of the respondent and her predecessors in title, covering a period of twenty-one years, it appears that they raise a legal presumption or warrant an inference of ouster, and lapse of time enters largely into the question as between tenants in common. When one tenant in common is in possession, it is prima faeie possession of his co-tenant, when not continued for a period of twenty-one years; but when the exclusive tenancy continues for more than twenty-one years without any recognition of title in others, that possession may be sufficient to raise a legal presumption of ouster, when all the facts are submitted to a jury. Under these circumstances, it appears that the proper proceeding in this case is to award an issue and let a jury pass upon the facts.

And now, July 25, 1921, let a decree be drawn directing an issue.

From J. O. Ulrich, Tamaqua, Pa.


author: Fox, J.,

text:
    Commonwealth v. Reiber.

      Criminal law — Rape and bastardy — Statute of limitations — Absence of defendant — Noru-residence—Evidence—Sufficiency.
    Where a prosecution for rape and bastardy Is not commenced until more than 1wo years after the alleged commission of the offence, and upon the charge that the defendant is a non-resident and fled the jurisdiction, the testimony of unsuccessful efforts to locate him is vague and indefinite, disclosing no real effort, no diligent search, no inquiry at his parents’ home, a verdict of guilty cannot be sustained in the face of defendant’s evidence that he was residing and employed in the State during the entire period, and could have been reached at any time upon inquiry at his parents’ home or among his friends.
    Motion in arrest of judgment and for new trial. Q. S. Dauphin Co., June Sess., 1921, No. 70.

      E. Le Roy Keen, Assistant District Attorney, for Commonwealth.

      Michael E. Stroup, for defendant.
    Oct. 5, 1921.
   Fox, J.,

In this case an indictment for rape and bastardy was presented on June 2, 1921, charging that the defendant on April 5, 1919, in the County of Dauphin, being of the age of sixteen years and upwards, feloniously did make an assault upon Kathleen E. Matter, and then and there feloniously, unlawfully and carnally did know and abuse, and a female bastard child on the body of the said Kathleen E. Matter did beget, in the county aforesaid, and of which the said Kathleen E. Matter was delivered on Dec. 22, 1919, the said Kathleen E. Matter then being under the age of sixteen years, and that the said defendant fled the jurisdiction and was not an inhabitant of this Commonwealth or a usual resident therein since the birth of the said bastard child. A plea of not guilty was entered by the defendant. The trial proceeded and the evidence submitted, and a verdict of guilty was rendered by the jury. A motion in arrest of judgment and for a new trial was filed, the disposition of which is now before us.

The defendant contended that, inasmuch as the child was begotten through sexual intercourse had on April 5, 1919, no indictment having been presented until June 2, 1921 (no information having been made until May 18, 1921), the statute of limitations had run and the defendant could not be convicted under the evidence as submitted by the Commonwealth at the trial. The question of the guilt of the defendant, as well as that as to whether or not he was an inhabitant or usual resident of the State during the period from the time he had connection with the prosecutrix until two years had elapsed, to wit, April 5, 1921, were submitted to the jury, and the jury found the defendant guilty, thereby finding as a fact in the negative as to the latter question.

The question before us is, was there sufficient evidence produced by the Commonwealth from which the jury could fairly conclude that the defendant was not an inhabitant or usual resident of the State during this period of two years from the time the offence was committed? A careful reading of the notes of testimony discloses that the prosecutrix saw the defendant once after the intercourse at Lykens, his home, about three weeks before the child was born, but had no conversation with him, and never informed him of her being pregnant. Subsequently she asked several persons whether they knew of his whereabouts, who told her they did not, but does not testify who they were. She says she made other inquiries, but her testimony is quite indefinite as to how, when, where and of whom these inquiries were made. She also testified that she learned that he was at hand and could have been arrested in April of 1921, but the information was not made until May 18, 1921. The father of the prosecutrix was called and testified that he could not discover the whereabouts of the defendant at Lykens. He asked people about him, but he made no inquiry at the home of the defendant, and his evidence of his inquiries is likewise vague and indefinite. Mrs. Irvin Messner, called by the Commonwealth, who lives quite close to the home of the parents of the defendant in Lykens, testified that she saw the defendant at the home of his parents between Christmas and New Year of 1919; that she again saw him ■there two weeks before Christmas of 1920, and that she saw him shortly before Easter in April, 1921, and that he remained at home from that time on.

The rule is: “The most that can be required of the Commonwealth is to furnish evidence of facts from which, in the absence of evidence on the part of the defendant as to his residence, a jury may fairly infer that he was not an inhabitant or usual resident of the State during the period in question:” Com. v. Bates, 1 Pa. Superior Ct. 223, 233.

We do not think that the Commonwealth has here done what is required under this rule. There was no real effort made, so far as the evidence discloses, to learn of his whereabouts, with a view to arrest. No diligent search was made; no inquiry was made at the home of the parents as to where the defendant was, and after he had returned home in April, 1921, and there remained, no step was taken against him until May 18, 1921.

The testimony offered by the defendant by a number of witnesses shows that the defendant is a workman; that, prior to the year 1919, he had been away from the home of his parents, working at Berwick; that about the end of the year 1919 he went, in company with another young man by the name of Bowman, from Lykens to Philadelphia and secured employment there. He secured boarding and lodging, giving his full name to his employer and also to the people with whom he lodged and boarded, and that they also knew that he was from Lykens; that he wrote home to his mother and sent her money regularly, and that he wrote letters to persons, other than members of his family, residing in Lykens and vicinity; that Bowman soon returned from Philadelphia to Lykens on account of the illness of his mother, and that he told a number of people that the defendant was in Philadelphia, and where he was in that city and what he was doing.

Taking into consideration the whole of the evidence, and more particularly that submitted by the Commonwealth as to the whereabouts of the defendant during the period of two years after the commission of the offence, in which time the statute of limitations was running, we are of the opinion that the evidence offered by the Commonwealth does not support the allegation in the indictment, to wit, that the defendant had fled the jurisdiction, and was not an inhabitant of this Commonwealth or a usual resident therein subsequent to the commission of said offence, and we are also of the opinion that the verdict of the jury was unfair to the defendant and against the weight of the evidence, in that the evidence did not prove, or tend to prove, that the said defendant had fled the jurisdiction of the court and was not a usual resident of the Commonwealth.

For the considerations stated, we are constrained to set aside the verdict which was rendered. Accordingly the verdict is set aside and a new trial is granted. From William Jenkins Wilcox, Harrisburg, Pa.


author: Bechtel, P. J.,

text:
    Seaman v. Mealey et al.

      Practice, C. P. — Affidavit of defence — Failure to serve — Failure to endorse address within county — Motion to strike off.

    Where a copy of an affidavit of defence has not been served in the manner provided by law, and no address within the county has been endorsed thereon, the remedy is not by a rule for judgment for want of an affidavit of defence, but by motion to strike the affidavit from the record.
    Rule for judgment for want of an affidavit of defence. C. P. Schuylkill Co., July T., 1921, No. 375.

      R. R. Koch and F. P. Krebs, for plaintiff; R. J. Graeff, for defendants.
    Nov. 14, 1921.
   Bechtel, P. J.,

A petition was filed in this case, setting forth, inter alia, “That the summons issued on June 9, 1921, and was served on the defendants, together with the statement of claim, on June 15, 1921. That on Aug. 15, 1921, an affidavit of defence was filed by the defendant, the Tamaqua National Bank. That no copy of said affidavit of defence was served on plaintiff or his counsel, nor has any been served to the date of the filing of this petition, and that, therefore, the affidavit of defence must be treated as a nullity. That the affidavit of defence must be treated as a nullity for the additional reason that it is not endorsed with an address within the county where all papers are to be served.”

Upon this petition a rule was granted on the defendant, the Tamaqua National Bank, to show cause why judgment should not be entered against it and in favor of the plaintiff as for want of an affidavit of defence. To this rule no answer has been filed. It will, therefore, be seen that the question before us is whether or not the affidavit of defence should be treated as a nullity for want of service and for want of an address within the county where papers may be served.

Our attention has not been called to any decisions of our higher courts governing this question. We are not unmindful of the decisions in Luzerne County National Bank v. Stout, 26 Dist. R. 1093; Wright Wire Co. v. Levi, 28 Dist. R. 795, and Glover v. Errich, 30 Dist. R. 720, in which it has been held that the filing of an affidavit of defence after service thereof in accordance with the provisions of the act is a nullity and insufficient to prevent the entry of judgment. It will be noted, however, that the Practice Act contains no provisions for the entry of judgment for want of the service of the affidavit of defence and fixes no time within which the same must be served.

It will also be noted that rule 38, article 5, of this court, requiring the affidavit of defence to be served on plaintiff or his counsel within ten days after the filing of the same, contains no provision for the entry of judgment in case of default. We are, therefore, of the opinion that the affidavit of defence filed in this case comes rather within the provisions of section 21 of the Practice Act of May 14, 1915, P. L. 483, which provides: “The court, upon motion, may strike from the record a pleading which does not conform to the provisions of this act, and may allow an amendment or a new pleading to be filed upon such terms as it may direct.”

This pleading clearly does not conform to the provisions of the act. It has not been served, and the notice of an address for the filing of papers does not conform to the requirements of the act. Since, therefore, it is a pleading not in conformity with the provisions of the Practice Act, it clearly comes within that section of the act above quoted, which, it seems to us, was inserted to cover cases such as this. We are, therefore, of opinion that the plaintiff is not pursuing his proper legal remedy.

And now, Nov. 14, 1921, the rule for judgment for want of an affidavit of defence is herewith overruled.

From J. O. Ulrich, Tamaqua, Fa.


author: Ryan, P. J.,

text:
    Milford and Richland Turnpike Road.

      Turnpike condemnation — Rule to vacate proceedings — Condemnation Acts of June 2, 1887, and May 16, 1919 — Independent remedies.

    1. The Acts of June 2, 1887, P. L. 306, and of May 16, 1919, F. L. 199, provide separate and independent methods of freeing turnpikes, and the former is not repealed or amended by the latter.
    2. In a proceeding to condemn a turnpike under the Act of 1887, it is not necessary to present a petition to the county commissioners requesting them to purchase the turnpike under the Act of 1919, before presenting a petition to the court for the appointment of a master and jury of view.
    Rule to vacate turnpike condemnation proceedings. Q. S. Bucks Co.
    C. William Freed and Mark Thatcher, for rule; Gordon Luckenbill, contra.
    Sept. 6, 1921.
   Ryan, P. J.,

Upon the filing of a petition of resident taxpayers of the county to the number of more than twenty-five, under the provisions of the Act of June 2, 1887, P. L. 306, this court; appointed a master and jury to view and report upon the matter of condemnation for public use of the Milford and Richland Turnpike Road, &c. The respondent company procured the above rule, which it contends should be made absolute because the said petition does not set forth the necessary jurisdictional facts to sustain it and empower the court to make said appointments. It is the contention of the respondent that the above cited act is by implication so amended by the Act of May 16, 1919, P. L. 199, as to require the petition provided for by the latter act to be first presented to the county commissioners as a condition precedent to the presentation of a petition for a master and jury of view under the said Act of June 2, 1887. If this construction of the Act of May 16, 1919, be correct, this rule must be made absolute, as it is conceded by the petitioners that no such application as is therein provided for has been made. Each act provides a remedy for the same condition, to wit, the existence of a turnpike road with toll-gates, which it has become advisable, in the interest of the people of the county, to free from tolls and make a public road. The Act of 1919 makes no specific reference to the Act of 1887, but its 3rd section provides that “all acts or parts of acts inconsistent herewith” are hereby repealed. Are the provisions of the two acts so inconsistent and repugnant that those of the Act of 1919 must be construed as repealing or amending those of the Act of 1887? The former act provides for a petition of twenty-five or more resident taxpayers of the county, setting forth “that it would be for the best interests of the people of their county that such turnpike, road or highway, or part thereof, should be purchased by their county and become a public road, free from tolls and toll-gates,” whereupon “it shall be lawful” for the county commissioners to enter into negotiations with the owners of such turnpike, road or highway for the purchase thereof, and to purchase the same if a price can be agreed upon.” The respondent regards as significant and as sustaining its contention the proviso which follows the above cited provisions. It is as follows:

“Provided, that if said county commissioners and the owners of said turnpike, road or highway, or part thereof, cannot agree upon the price to be paid for the same, nothing in this act contained shall prevent the petitioners, or any other resident taxpayers of the county, from proceeding to have such turnpike, road or highway, or part thereof, condemned under existing laws,” etc. While there is here a recognition of the existence of the remedy by condemnation, there is nothing, either expressed or implied, that can be construed as giving precedence to the remedy of the petition to the county commissioners to purchase. Evidently all that the legislature intended — certainly all that it has said here — is that where taxpayers have first invoked the remedy of the Act of 1919, and it has failed, they or any other taxpayers are not precluded from the remedy of condemnation proceedings provided by the Act of 1887. The intention of the legislature evidently was to furnish an additional remedy to the taxpayers. The later statute contains nothing from which it can be inferred that a petition under the Act of 1887 can only be entertained after an attempt to purchase the toll-road by the county commissioners has failed. “It is well settled that express provision of a subsequent law is not absolutely necessary to repeal a statute. It may be repealed by necessary implication. The leaning, however, of the courts is strongly against repealing .the positive provisions of a former, statute by construction: Dwarr. on Stat., 154. The more natural, if not necessary, inference in all such cases is that the legislature intend the new law to be auxiliary to, and in aid of, the purpose of the old law. There should, therefore, be such a manifest and total repugnancy in the provisions of the new law as to lead to the conclusion that the latter law abrogated, and was designed to abrogate, the former. . . . The general rule ... is that there must be such a positive repugnancy between the provisions of the new statute and the old that they cannot stand together or be consistently reconciled: Wallace v. Bassett, 41 Barb. 92; McCool v. Smith, 1 Black U. S. 459; Bank v. Com., 10 Barr, 442; Brown v. County Commissioners, 9 Harris, 87. If it be possible that both can stand by construction, then the proper inquiry is, what was the intention of the legislature? Did it mean to repeal the former law, or was the new law intended to be merely cumulative? United States v. Case of Hair Pencils, 1 Paine, 400:” Sifred v. Com., 104 Pa. 179. See, also, Hendrix’s Account, 146 Pa. 285; Com. v. Vetterlein, 21 Pa. Superior Ct. 587. We conclude, therefore, that the Act of June 2, 1887, is not affected by the Act of May 16, 1919, that each act provides a different remedy, and that the appointment of the master and jury upon the petition presented is regular and must be sustained.

And now, to wit, Sept. 6, 1921, the rule granted to show cause why the order appointing the master and jury should not be vacated and the petition dismissed, is discharged at the costs of the petitioner.

From Calvin S. Boyer, Doylestown, Pa.


author: Langham, P. J.,

text:
    Learn’s Estate.

      Wills — Construction—Gift to testator’s heirs — Distribution per stirpes to children and grandchildren.

    1. Where the will of the testator grave bequests to his living children and grandchildren, and then added “and should any balance remain thereafter, said balance to be equally divided among all my heirs:” Held, that the distribution to children and issue of a deceased child should be per stirpes and not per capita.

    2. When a devise or legacy is given to heirs or their representatives, distribution will be made in accordance with the general principles governing the descent of estates of intestates, unless a contrary intention appears in the will; and by the Act of April 8, 1833, P. L. 316, children and descendants of children take per stirpes.

    Ashton’s Appeal, 134 Pa. 390, distinguished.
    Exceptions to auditor’s report. O. C. Indiana Co., March T., 1921, No. 6.

      Pierce & Pierce, for exceptants.

      E. Walker Smith, D. B. Taylor and James L. Jack, contra.
    Sept. 3, 1921.
   Langham, P. J.,

In this case the auditor appointed by the court to audit, adjust and distribute the funds in the hands of E. E. Creps, administrator d. b. n. c. t. a. of John A. Learn, late of Green Township, deceased, made his report, and exceptions were filed thereto on behalf of Andrew Donahey, Bessie Learn and Hattie Donahey, residuary legatees under the will of said John A. Learn, deceased, as follows:

“1. The auditor erred in failing to award to each of said exceptants the undivided one-ninth of the residuary fund instead of the one twenty-first.

“2. The auditor erred in not awarding to each of said exceptants the sum of $610.28 (260.29).

“3. The auditor erred in finding as a matter of law that the distribution of the residuary fund under said will should be per stirpes instead of per capita.

“4. After certain bequests to his children and grandchildren out of money arising from the sale of coal, testator directs, ‘and should any balance remain thereafter, said balance to be equally divided among all my heirs.’ The auditor erred in dividing said balance among the heirs, being his children and grandchildren, per stirpes instead of equally, as the will directs.”

The only question before us in this case is whether the distribution should have been made per capita or per stirpes. This involves a construction of that part of the will of John A. Learn, deceased, wherein, after certain bequests to his children out of money arising from the sale of coal, he directs, “and should any balance remain thereafter, said balance to be equally divided among all my heirs.” The exceptants claim that this provision of the will calls for a distribution per capita among the children and grandchildren of the testator. John A. Learn, the testator, left to survive him six children and three grandchildren, the Donahey children, being the children of a deceased daughter of the testator, and the exceptants here. The surviving children claim that they should take an undivided one-seventh interest under the said residuary clause of the will above quoted, while the grandchildren claim the undivided one-ninth interest under the said residuary clause. The Act of April 8, 1833, P. L. 316, provides that where an intestate leaves “descendants in different degrees of consanguinity to him, the more remote of them being the issue of a deceased child, grandchild or other descendant, each child of the intestate shall receive such share as such child would have received if all the children then dead leaving issue had been living at the death of the intestate.” In other words, such an estate must be divided into as many shares as there are children living and children dead leaving issue to represent them. These shares must be divided according to the words of the statute above quoted in the following manner: “In every such case the issue of such deceased child, grandchild or other descendant shall take by representation of their parents respectively such share only as would have descended to such parent at the death of the intestate,” if such parent had then been living. The rule of the intestate laws is followed in all cases when the testator has not clearly adopted a different one.

The will of the testator gives each of his living children and each of his grandchildren special bequests, and then adds, “and should any balance remain thereafter, said balance to be equally divided among all my heirs.”

We are not convinced that the testator in his will meant to make his grandchildren equal with his sons and daughters living. The case of Ashton’s Appeal, 134 Pa. 390, relied upon by counsel for the exceptants, to our mind, should not control in the distribution in the case at bar, for the reason that in said case the testator specifically says, “then in trust to and for the use of the right heirs of him, the said Charles T. Ashton.” In the Ashton case the testator designated specifically “heirs of him, the said Charles T. Ashton, in equal shares,” which included the widow of Charles T. Ashton. In the Ashton estate the widow of Charles T. Ashton was not an heir of the testator at all, but by testator’s will she was made a beneficiary; hence, the Supreme Court included her in the distribution with the only other “right heirs” the son had left. In the Ashton case the question for determination was as to who were the “right heirs” of Charles T. Ashton, and, when so determined, there was no question as to the share to be taken by each, for the reason thgt the will provided for equal distribution among them. In the case at bar the legatees, children and grandchildren, are testator’s heirs, and the question is, what share shall they severally take? This brings the case clearly within the rule heretofore mentioned. In Hoch’s Estate, 154 Pa. 417, it is held: “The intestate laws must control questions of distribution arising upon the settlements of estates of testators, as well as intestates, unless the testator has clearly provided a different mode in his will.” In Ashburner’s Estate, 159 Pa. 545, the testator bequeathed his estate to his “daughters Harriet and Maria, and the children and heirs of my sons Benjamin and Charles, to be equally divided between them.” At the date of testator’s will his two sons were dead. Held, that distribution should be made per stirpes. This case has been cited in Moses’s Estate, 3 Pa. Superior Ct. 93; Miller’s Estate, 26 Pa. Superior Ct. 453; Sipe’s Estate, 30 Pa. Superior Ct. 145; Todd’s Estate, 33 Pa. Superior Ct. 117; Brundage’s Estate, 36 Pa. Superior Ct. 211. These cases clearly decided that when a devise or legacy is given to heirs or their representatives, distribution will be made in accordance with the general principles governing the descent of estates, unless a contrary intention appears in the will. To the same effect we may cite Wootten’s Estate, 253 Pa. 136, in an opinion by Mr. Justice Moschzisker. See, also, Beck’s Estate, 225 Pa. 578; Webb’s Estate, 250 Pa. 179.

From our examination of the wording of the will and the law relating thereto, we are of the opinion that the exceptions to the distribution by the auditor should be dismissed and the report confirmed.

Decree of court.

And now, Sept. 3, 1921, this case came on to be heard by argument of counsel, and, upon due consideration thereof, the exceptions to the auditor’s report in the above stated case are hereby dismissed and the report of the auditor confirmed absolutely. Exception to the order and decree of court is hereby allowed exceptants.