author: Fleming, P. J.,

text:
    Mitchell’s Estate.

      John G. Love, for petitioner.

      W. Harrison Walker and N. B. Spangler, for heirs.

      James C. F.urst, for guardian of minor heirs.
    April 24, 1929.
   Fleming, P. J.,

This matter is before the court on exceptions filed to the petition of John Mitchell, surviving spouse of the above-named decedent, asking for an allowance to him of $5000 as such surviving spouse, under the provisions of section 2 of the Intestate Act of June 7, 1917, P. L. 429. We have before us the following

Facts.

• 1. The above-named decedent died on July 9, 1928, having first made her last will and testament bearing date of Nov. 2, 1926, wherein she named her husband, John Mitchell, as the sole executor thereof.

2. That the last will and testament of said decedent was duly probated on July 17,1928, and remains of record in the office of the Register of Wills of Centre County, letters testamentary thereon having been granted to John Mitchell according to the tenor of said last will and testament on the date of probate. -

3. That on July 24, 1928, the said John Mitchell, surviving spouse, executed and acknowledged his election to take against the will of the decedent, which election was filed and recorded in the office for the recording of deeds, etc., in and for Centre County on the same day and was recorded therein on July 25, 1928,- in Miscellaneous Book, Volume V, at page 150.

•■4. That such election was not, and has not been, at this date, filed in the office of the Register of Wills of Centre County.

. 5. .That the said John-Mitchell, surviving spouse, now seeks to withdraw said election. -; .

6. That by the terms of .decedent’s said last will and testament she provides, inter alia, as follows, to wit:

“Second. I direct that the following disposition be made of the $9800.00 in notes held by me against Elmer Witmer, namely: Of the first two notes of $2000.00 each I direct that $1000.00 of each of these notes be paid to my husband John Mitchell and the other $1000.00 of each of these notes shall be equally divided between my nephews and niece, namely* Brown McFarlane, William McFarlane and Margaret McFarlane, as these notes fall due.
“Third. The balance of these said Elmer Witmer notes which amounts to $5800.00 shall then be disposed of as follows:
“1st. To Mrs. Maud Mitchell I give and devise the sum of $1000.00.
“2nd. To the Spring Creek Cemetery I give and devise the sum of $1000.00 to be used as a trust fund by the trustees and the income used to maintain and keep in order & neatness the said cemetery and the graves of my parents and my family in particular.
“3rd. To the Spring Creek Presbyterian Ladies Missionary Society I give and devise the sum of $100.00.
“4th. To the Old Ladies Home at Hollidaysburg (Presbyterian) I give and devise the sum of $100.00.
“5th. To each of the children of Henry Thompson, namely, Hutchinson Thompson, Mrs. Mary Stonerode, Taylor Thompson, William Thompson, Nannie Thompson, Bruce Thompson, Robert Thompson and Priscilla Thompson, I give and devise the sum of $25.00.
“6th. To each of the children of George Mitchell, namely, Hutchinson Mitchell and James Mitchell, I give and devise the sum of $25.00.
“7th. To Mrs. Mary Payne for faithful services rendered I give and devise the sum of $25.00.
“8th. I direct that after the above bequests have been paid out of the aforementioned $5800.00, then the balance remaining shall be paid to my nephews and niece, namely, Brown McFarlane, William McFarlane and Margaret McFarlane, share and share alike.
“Fourth. I direct that the income from my farm in College Township, Centre County, shall be paid annually to my husband John Mitchell during his life and then the said farm shall be given to my nephews and niece, Brown McFarlane, William McFarlane and Margaret McFarlane, with the reservation however that should my executor in his judgment be able to make an advantageous sale of said farm then he is authorized to do so and give one-half of the price received to my husband, John Mitchell, and the other half share and share alike to my nephews and niece, Brown McFarlane, William McFarlane and Margaret McFarlane. In the event of the death of either, Brown or William or Margaret McFarlane, then the share that would belong to such deceased nephew or niece shall be equally divided between the surviving nephews or niece in all the bequests made to them in this my last will and testament.”

7. The first of the two Elmer Witmer notes for $2000 mentioned in the second item of decedent’s last will and testament was paid by the maker to the decedent in her lifetime at its maturity.

8. The three remaining Elmer Witmer notes for $2000 each and the one Elmer Witmer note for $1800 were anticipated and paid before maturity by the maker to the decedent in her lifetime.

9. The farm mentioned in the fourth item of decedent’s last will and testament was sold during the lifetime of the decedent to Jesse Klinger for $12,000, $5000 being paid in cash and a purchase-money mortgage for $7000 being given.

10. That the appraisement filed in the office of the Register of Wills shows decedent’s estate to consist as follows:

Mortgage — J. W. Klinger, dated Mar. 24, 1928......... $7,000.00
3 Penna. R. R. Co. bonds — 40 yr. — 5%................ 3,112.50
4 State College Hotel Co. bonds....................... 2,000.00
1 Phila. Co. — 5% Gold Bond......................... 495.00
78 Shares Penna. R. R. Co. stock...................... 5,070.00
Cash in 1st Nat’l Bank of Beliefonte, Penna............ 1,553.75
$19,231.25

Questions involved.

1. Has there been such compliance with the provisions of section 23 (e) of the Wills Act of 1917 as to constitute an election by the surviving spouse to take against the decedent’s will?

2. If such compliance is found to have been made, does the surviving spouse have the right to withdraw such election, a period of one year not having elapsed since the death of the decedent?

3. Are the legacies and devises mentioned in decedent’s last will and testament specific or demonstrative?

4. If specific, were they so changed in the lifetime of the decedent as to be adeemed, thus causing an intestacy as to decedent’s estate and permitting the $5000 allowance sought by the surviving spouse under the provisions of section 2 of the Intestate Act of 1917?

Discussion of questions involved.

1. Has there been such a, compliance with the provisions of section 23 (e) of the Wills Act of 1917 as to constitute an election by the surviving spouse to take against the decedent’s will?

Section 23 (e) of the Wills Act of 1917 provides as follows: “The election by a surviving spouse, or a certified copy of the final decree of any Orphans’ Court, in cases when there shall have been an election in accordance with clause (d) hereof, or a neglect or refusal to elect within the time prescribed by the order of the said court, shall, at the cost Of the estate, be recorded, by the personal representative of the decedent, in the office for the recording of deeds of the county where the decedent’s will is probated, in the deed book, and shall be indexed by the recorder in the grantor’s index under the name of the decedent, and in the grantee’s index under the name of the surviving spouse, and shall be registered in the survey bureau, or with the proper authorities empowered to keep a register of real estate, if any there be, in said county. The charges for recording and registering shall be the same as are provided by law for similar services. The election, or decree of the court, or a certified copy of either, may also be recorded in any office for the recording of deeds within this Commonwealth, with the same effect as if a duly signed and acknowledged declaration to the effect stated therein had been made by the person authorized to elect, and at his or her request, recorded in said office according to law. After the said election shall have been recorded in the office for the recording of deeds as aforesaid, the said election, at the cost of the estate, shall be filed in the office of the Clerk of the Orphans’ Court and a record made of such filing by the said clerk.”

The relevancy of this question becomes apparent when we consider that the right of the husband to the $5000 special allowance in case of intestacy has no application to cases where the husband elects to take against the will: Mitchell’s Estate, 79 Pa. Superior Ct. 208; Lucas’s Estate, 277 Pa. 553; Collom’s Estate, 47 Pa. C. C. Reps. 434, 28 Dist. R. 503.

Compliance with the above quoted section has not been had in the following respects, viz.:

(a) The election has not been recorded in the deed book, it appearing that the same was recorded in Miscellaneous Book, Volume V, page 150.

(b) The name of the decedent has not been indexed in the grantor’s index.

(o) The name of the surviving spouse has not been indexed in the grantee’s index.

(d) The election has not been filed in the office of the Clerk of the Orphans’ Court and a record made of such filing by said clerk.

No allegation has been made, nor could such be sustained, if made, that the rights or interests of any other person, who might have depended upon the record of the alleged election, have been affected, other than that, were we to hold this alleged election valid and irrevocable, the surviving spouse would be barred from his right to the $5000 special allowance under the cases cited above.

We are of the opinion that the procedure prescribed by section 23 (e) of the Wills Act, manifesting the election, is mandatory and that such procedure has not been followed in this case. While the election was entered for record in the office for the recording of deeds, and was therein recorded, it was not recorded in the deed book as the act requires. Nor was it indexed in compliance therewith, nor was it filed with the clerk of this court and proper notation made upon our records. The procedure followed is not that of the statute, and if for no other reason, should be set aside: Kester’s Estate, 23 Luzerne Legal Reg. 82; Smith’s Estate, 16 Del. Co. Reps. 186. The requirements of the statute were not enacted arbitrarily nor without reason. Nor does the fact that the setting aside of the election in the instant case will permit the surviving spouse to further advance his contentions as to the intestacy of the decedent affect the determination of the matter in any way.

The purpose of the legislation was to provide for security of titles to real estate of a decedent, and for this reason a written election, duly acknowledged, was required, and such an election, when properly filed of record, has the same effect as a decree of court under the earlier acts: Johnson’s Estate, 244 Pa. 600, 604. In other words, recording in the office for the recording of deeds was required by the act for the same reason that deeds are required to be recorded in such office to secure titles to the proper owners. The requiring of such elections to be recorded in the deed book was specified because- it is there, and not in miscellaneous books, that titles are recorded and remain open for the inspection of interested parties. The provision for indexing such elections further conforms to the general requirements which look to the security of titles to real estate. That in the particular case before, us no real estate is involved does not affect the rule in determining the election herein made. The act is mandatory and is based upon reason, and must be complied with by all, regardless of the existence or non-existence of real estate in any particular case.

The further requirement compelling the filing of such election in the office of the Clerk of the Orphans’ Court is in furtherance of the purpose of giving complete notice to all interested. “The purpose of the legislation was to give accurate information to the executor of the purpose of the- husband and wife so that a proper adjustment of the assets could be made:” McCutcheon's Estate, 283 Pa. 157, 161. For the same reason we find the requirement of filing with the clerk of this court and the entry of a proper record, .herein. The fact that the surviving spouse and the executor, in the instant case, are one and the same person does not change the rule. It is general and must apply in all cases.

The only semblance of a compliance with the statute in this case is the executing and acknowledging of the election. Every other mandatory requirement has been omitted. The alleged election is a nullity and should be set aside.-

2. If such compliance is found to have been made, does the surviving spouse have the right to withdraw such election, a period of one year not having elapsed since the death of the decedent?

Having determined above that compliance with the requirements of the statute has not been made, further consideration of this question is unnecessary. We are of the further opinion, however, that, even though the requirements of the statute had been fully met, it would have been proper to permit the withdrawal of the election under existing facts. The decedent died July 9, 1928.. Her will was probated and letters testamentary issued to her surviving spouse on July 17, 1928. The election to take against decedent’s will was executed and acknowledged July 24, 1928, and the petition of the surviving spouse, upon which our present controversy arises, was executed on Aug. 2, 1928, and preliminary decree made by us on Aug. 7, 1928. The inventory and appraisement, revealing the exact character of decedent’s estate, was filed on July 16, 1928. It is, therefore, to be noted that all these various steps occurred within a period of less than one month from the date of decedent’s death. By the provisions of section 23 (d), the surviving spouse could not have been compelled to file his election until a six months’ period after the death of the decedent had elapsed, nor could he have been compelled, as executor, to render an accounting until after a like period had elapsed. No steps had been taken toward distribution, nor was distribution approaching or at hand at the time the surviving spouse became aware of the probable ademption of the legacies and the devise, and was thus afforded an opportunity to choose to test the question as to the intestacy of his wife. The instant case differs materially from Baily’s Estate, 285 Pa. 408, and other cases, wherein, after the lapse of considerable time, the surviving spouse had desired to revoke an election previously made. The law has most wisely erected a six months’ period following the death of a decedent wherein all concerned, whether as surviving spouse, executor, administrator, legatee, devisee, heir or creditor, may well reflect and adjust their respective positions. In the instant case, before the end of one of these six months, the surviving spouse had readjusted his position and stated his purpose as it is now before us. If action has been taken by husband or wife to take or not to take under a will, in ignorance of the value of the estate or of the rights which would accrue under the intestate laws as compared with the rights under the will, the first election may be set aside and the distribution made in the manner provided by law: McCutcheon’s Estate, 283 Pa. 157. See, also, Hubley’s Estate, 2 Somerset, 604. As we have pointed out above, no rights were prejudiced by the surviving spouse’s attempt to file an election. The matter is in the same status as would have existed had the spouse omitted the attempted election to take against the will. We are, therefore, of the further opinion that, had the election herein been in conformity with the statute, the surviving spouse should be permitted to withdraw the same, he having acted promptly and with no delay and no rights being prejudiced thereby.

3. Are the legacies and devises mentioned in decedent’s last will and testament specific or demonstrative?

We now approach the consideration of the most important of the questions involved herein. Upon the determination of this question rests, in a most vital degree, the interests of the several parties now before the court. We must realize the responsibility that is ours to interpret the meaning of the testator. We are concerned not alone with the interests of the parties litigant, but with the interests of the decedent as she regarded them at the time of the making of her last will and testament. The Supreme Court has said that “precedents in will cases are of little value:” Swentzell’s Estate, 294 Pa. 261, 265. We must seek general rules in considering the matter before us. “We must consider the whole will, all the language employed in the residuary clause, the circumstances surrounding the testator when he wrote it, and the amount and character of his property. ‘While we should search for the intent of the testator only within the four corners of the will, yet, when we come to consider the will and interpret its meaning, we must do so in the light of all the circumstances by which testator was surrounded when he made it; to this end, his family, and the amount and character of his property, may and ought to be taken into consideration:’” Frisbie’s Estate, 266 Pa. 574, 578; Mayer’s Estate, 289 Pa. 407; Swentzell’s Estate, 294 Pa. 261.

Counsel for the surviving spouse contends that the legacies involving the Elmer Witmer notes and the devises concerning the farm in College Township were specific, and, having been converted by the testator, in her lifetime, and by her own act, were, therefore, adeemed, resulting in decedent’s intestacy and the subsequent right of the surviving spouse to the $5000 special allowance and the further right to distribution of decedent’s property under our intestate laws. What operates to make a legacy or devise specific and what operates to make such demonstrative? Keeping in mind the rules by which we seek the true intent of the testator, we proceed to ascertain the existing tests and to apply them to the instant case.

In Wall v. Stewart, 16 Pa. 275, Bell, J., says, in part, as follows: “The courts are disinclined to recognize specific legacies because of their liability to sink with the destruction of the thing bequeathed or the fund charged. But as it was obviously impossible to esteem as purely pecuniary many of the testamentary gifts which judges inclined to withdraw from the class of specific legacies, they were driven to borrow from the civilians a term thought to be descriptive of a species of donation holding a middle plan between specific and pecuniary — the only kinds distinctly recognized when Swineburne wrote. They are called demonstrative, and, like general legacies, are gifts of mere quantity, but differ from these by being referred to a particular fund for payment. They are so far general, that if the particular fund be called in or fail, the legatees will be permitted to receive their legacies out of the general assets; yet so far specific as not to be subject to abatement, with general legacies, on a deficiency of assets. They are thus specific in one sense, and pecuniary in another; specific, as given out of a particular fund, and not out of the estate at large; pecuniary, as consisting only of definite sums of money and not amounting to a gift of the fund itself, or any aliquot part of it, the mention of the fund being considered rather by way of demonstration than of condition — rather as showing how or by what means the legacy may be paid, than whether it shall be paid at all.”

A specific legacy is a gift by will of a specific article or a particular part of the testator’s estate which is identified and distinguished from all others of the same nature and which can be satisfied only by the delivery and receipt of the particular thing given. A specific legacy may be looked upon as one which the testator has separated from the general mass of his property for the benefit of a particular legatee: 28 Ruling Case Law, § 263.

A demonstrative legacy partakes both of the nature of a general and specific legacy. It is a gift of money or other property payable out of or charged on a particular fund in such a way as not to amount to a gift of the corpus of the fund or to evince an intent to relieve the general estate from liability in case the fund falls. Two elements are necessary to constitute a demonstrative legacy, viz., it must appear, first, that the testator intended to make an unconditional gift in the nature of a general legacy; and, secondly, the bequest must be given with reference to a particular fund as a primary source of payment: 28 Ruling Case Law, § 266.

Whether a devise is specific or general is a question of construction and is to be determined by the same tests as when the subject of the gift is personal property. By a specific devise is meant a testamentary gift of a part of the decedent’s real estate identified and differentiated from all other parts: 28 Ruling Case Law, § 265.

Courts are averse to construing legacies to be specific, and will not, unless it be clear that the testator so intended. This is because a general legatee has greater protection against the risk of ademption. If compatible with the language employed, they are disposed to interpret gifts as general legacies; but if the language is clear and unequivocal and plainly evidences the intent of the testator to create a specific legacy, such effect must be given to that language. In cases of doubt as between a demonstrative and a specific legacy, the courts incline towards the construction which classifies the legacy as demonstrative, and a clear intention must appear in order to make a legacy specific rather than demonstrative: 28 Ruling Case Law, § 267.

In the instant ease, our decedent, Janet M. Mitchell, was childless. She resided happily with her husband. Her interests were centered in her church and in those next of kin whom she saw fit to mention in her will. On the day of making her will, she called in Squire Dreese, a neighbor, and instructed him to prepare her will. She was going away for treatment on the day following. At the time of making her will she was possessed of the Elmer Witmer notes, five in number, the face of which amounted to $9800 and which matured at stated periods. She was then possessed of a farm in College Township. While these notes and this farm constituted a valuable estate, yet it was not liquid and could not be divided among those upon whom she desired to bestow her beneficence. The Witmer notes were not yet due and payment could not be forced until maturity. A buyer was not yet at hand for the farm. Yet our decedent was about to leave her home for treatment. It is reasonable to presume that having become ill enough to require her going away for treatment, she realized the uncertainty of life, particularly under such conditions, and sought to express her wish as to the disposition of her estate in the event that she would not return. The Elmer Witmer notes possessed no peculiar associations or exceptional value. They represented merely choses in action with future cash values. The farm was of a like nature. That she was willing for it to be sold when an advantageous buyer should appear is evidenced by her direction permitting her husband to sell it, as is found in her will. She sought to dispose of all of her estate. She did not have actual cash sufficient to provide for the various persons and organizations for which she wished to provide. But she had things of value, incapable of being divided as she wished, and which could not have been divided without prejudice to or spoiling the whole. These were such things as would produce the cash necessary to fulfill her wishes. She pointed, therefore, to these things as the funds from which her wishes could be realized and without which such wishes could not have been fulfilled. That it was cash which she was disposing of and not notes is evidenced by her declaration that from each of the first two $2000 notes, $1000 should be paid to her husband and $1000 to' designated nephews and niece. She looked upon these notes as a fund from which the necessary money should spring. She considered it as the only available source from which payment could come at that time, as her farm was unsold and no immediate buyer was present. She realized that cash could be raised on the notes, by way of discount, at any time, but she could not be assured. that cash would arise from the farm in such a ready manner. She pointed, therefore, to the notes as a fund from which her -wishes could be fulfilled, leaving the farm to her husband, nephews and niece, they being of her own kin. Her disposition was of a mere quantity, but was referred to a particular fund for payment, such then being the only fund to which she could look for an immediate realization of her wishes. In short, she wished to immediately provide for her husband, her nephews and niece and for the various other legatees named. She had no immediate cash fund available. She knew the notes were the equivalent of ready cash and that from such source her wishes could be met. She pointed to the notes as a fund for this purpose. With these immediate legacies disposed of, she turned attention to the farm, an asset slower by way of realizing ready cash, and expressed her wish as to what should be done with it until sold and her further wish as to the disposition of the proceeds when sold. ■

The further fact appears that our decedent concerned herself no further with a last will and testament after the notes had been paid and her farm sold. Knowing of her as a prudent woman and having seen her prudence exhibited by her desire to make a will before leaving for treatment, we are entitled to infer from her own failure to further dispose of her estate after the conversion of the notes and farm into cash that it was her intent that the will now before us should be taken as her final wish, regardless of such conversion. We are of the opinion that such legacies and devises as refer to the Elmer Witmer notes and to the College Township farm were intended by our decedent to have been merely demonstrative and not specific legacies and devises.

4. If specific, were they so changed in the lifetime of the decedent as to be adeemed, thus causing an intestacy as to decedent’s estate and permitting the $5000 allowance sought by the surviving spouse under the provisions of section 2 of the Intestate Act of 1917?

Having ascertained the legacies and devise in question not to have been specific, but merely demonstrative, further discussion of this question is unnecessary.

Conclusions.

1. The election heretofore made by the surviving spouse to take against the will of the decedent is not in conformity with the requirements of the Wills Act and should be set aside.

2. That the request of the surviving spouse for leave to withdraw his election to take against the will of the decedent should be allowed.

3. That the legacies and devise here in question are not specific, but merely demonstrative.

4. That no intestacy exists as to the legacies and devise here in question.

5. That the petition of the surviving spouse for the $5000 special allowance under the Intestate Act of 1017 should be dismissed.

Decree.

And now, April 24, 1929, it is hereby ordered, adjudged and decreed that the election heretofore made by John Mitchell, surviving spouse of Janet M. Mitchell, deceased, to take against the will of said decedent be and is hereby set aside and ordered stricken from the records; and it is further ordered, adjudged and decreed that the petition of the said John Mitchell, surviving spouse, for the allowance of the $5000 special allowance, as provided by section 2 of the Intestate Act of 1917, be and is hereby dismissed. The said John Mitchell, surviving spouse, to pay the costs of this proceeding.

Erom S. D. Gettig, Bellefonte, Pa.


source: Caselaw Access Project

author: Holland, P. J.,

license: Public Domain

text:
    Sinnott’s Estate.

      Saul, Ewing, Remick & Saul, for petitioner.

      M. Hampton Todd, H. Gordon McCouch and Ira Jewell Williams, for trustees.
    April 22, 1929.
   Holland, P. J.,

The clause of the testator’s will in question, which is recited in the fifth paragraph of the petition, in effect directs the trustees to pay the petitioner a minimum of $3000 per year out of the income of one full equal one-sixth part of his estate, and gives them an absolute discretion to pay so much more of the income of said one-sixth of the estate to him as they shall deem proper. “If in the sole discretion of my executors and trustees” is the language employed which certainly gives the trustees an absolute discretion. Further, “in their sole discretion,” they may “pay said balance of income (above $3000 per annum) to his wife” for her support and the support, education and maintenance of his children.

The trustees have exercised their discretion and are paying the petitioner $3000 per annum and expending the balance for the wife and children of petitioner.

Petitioner asks us to order the trustees to pay him $400 in excess of the $3000 minimum for his expenses in attending the audit of the trustees’ account which they are about to file.

In other words, the testator having given the trustees an absolute discretion, petitioner asks us to force them to exercise it in a particular way. It would seem the mere statement of the substance of his prayer is sufficient to inevitably point to the conclusion that it must be denied. If the court could insist or direct that an absolute discretion, clearly given a trustee by the testator, be exercised other than in the manner that the trustee has chosen, it would be equivalent to nullifying the testator’s intent and would in effect deprive the testator of the right to repose an absolute discretion in his trustees. It would seem superfluous to quote authority to support a proposition so clear. However, we should note that the cases cited by the respondents in their briefs are in point and unanswerable.

We need not consider the question of the relative importance of petitioner’s presence at the audit as a witness to material facts. We must pass upon the availability of evidence and its relevancy when the account is called for audit. We' have no authority to award petitioner his expenses as a witness in advance.

And now, April 22, 1929, the petition is dismissed, at the cost of the petitioner.

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


author: Carnahan, J.,

text:
    Fleck v. Johnson et al.
    Before Evans, P. J., Patterson and Carnahan, JJ.

      Frank K. Willmann, for insurance carrier.

      Oscar T. Taylor, for petitioner-defendant; Charles H. Young, for plaintiff.
    Jan. 4, 1929.
   Carnahan, J.,

In the petition presented, these facts are in substance set forth:

On Dee. 15,1925, an action of trespass was brought in this court at No. 2836, January Term, 1926; by Marie Fleck, a minor, by her next friend and father, John Fleck, and John Fleck in his own behalf, against J. T. Johnson, also known as J. Thomas Johnson. This action is still pending.

On Jan. 12, 1926, an employee's claim for compensation for disability was presented to the Workmen’s Compensation Board of Pennsylvania, Claim Petition No. 25101, by Marie Fleck against J. T. Johnson. This claim was proceeded with to final decision and award of compensation.

Marie Fleck was an employee of J. T. Johnson at the time stated in said action and in said claim.

The Globe Indemnity Company was the insurance carrier of J. T. Johnson, defendant, under the Workmen’s Compensation Act of 1915, as amended.

On said claim a hearing was had before a referee, at which appearances of attorneys were as follows, to wit: Charles H. Young, for claimant; F. K. Willmann, counsel for defendant, representing Globe Indemnity Company; and Oscar T. Taylor, counsel for defendant, representing J. T. Johnson.

In noting his appearance as aforesaid, Mr. Willmann stated as follows: “The Globe Indemnity Company, an insurance carrier, appears by counsel, Frank Willmann, for the purpose of protecting any interest which it has, or which its assured legally has, under its policy of insurance, and for no other purpose.”

Prior to the time of said hearing, the .Globe Indemnity Company, by its claim superintendent, had given notice to the defendant that it would refuse to act in his behalf under the insurance policy, and by reason thereof defendant had employed Oscar T. Taylor to act as his attorney.

The referee awarded compensation to the claimant, who took no appeal from his decision as referee, nor did the defendant take any appeal.

Thereafter, and without authority of J. T. Johnson, defendant, the Globe Indemnity Company, did appeal from the said decision of the referee to the Workmen’s Compensation Board. On Feb. 18, 1927, the findings and conclusions of the referee were affirmed by the Workmen’s Compensation Board after hearing, and the appeal of the Globe Indemnity Company was dismissed.

On Feb. 28, 1927, the Globe Indemnity Company, insurance carrier, took an appeal from the decision of the Workmen’s Compensation Board to the Court of Common Pleas of Allegheny County, in which said J. T. Johnson was named as defendant with said indemnity company as taking said appeal.

The said J. T. Johnson did not authorize the taking of said appeal, nor did he have any knowledge that such an appeal had been taken.

On May 24, 1927, the Court of Common Pleas made an order sustaining the exceptions filed to the decision of the Workmen’s Compensation Board, and vacating and setting aside the award of said board allowing the compensation to Marie Fleck.

After learning of the order of this court in said appeal, counsel for J. T. Johnson made efforts to reach an agreement with counsel for Marie Fleck, and from time to time it appeared as though an agreement might be reached, but the petitioner is now informed and believes that it will be impossible to reach an agreement on account of objection on the part of the parents of said Marie Fleck.

Upon the presentation of the foregoing petition, a rule was entered to show cause why said order of this court setting aside the award of the Workmen’s Compensation Board should not be vacated and the appeal from the decision of said board dismissed.

To this petition an answer was filed by the Globe Indemnity Company, denying that it had refused to act on behalf of and to protect the defendant under the insurance policy issued to him, and averring that it is informed and believes that the defendant Johnson employed counsel to protect his interests, which were not insured under any policy issued by the Globe Indemnity Company. The answer further sets forth chat the insurance company, upon investigation, found that the injured employee, at the time of her injury, was illegally employed, and for that reason could not be considered an employee within the meaning of the Workmen’s Compensation Act. The insurance company, however, did appear before the referee, pursuant to the terms of the policy of insurance, for the purpose of protecting its own interests as well as those of the defendant; and the referee having found against the defendant, the insurance company, pursuant to the terms of the policy, appealed to the Workmen’s Compensation Board and from its decision to the Court of Common Pleas of Allegheny County.

A copy of the insurance policy is filed with the answer, from which it appears that the insurance company agreed with its employer, Johnson, inter alia: “To defend in the name and on behalf of its employer, any suits or other proceedings which may at any time be instituted against him on account of such injuries, including suits or other proceedings alleging such injuries and demanding damages or compensation therefor, although such suits, other proceedings, allegations' or demands are wholly groundless, false or fraudulent.”

It was because of this provision in the policy that the insurance company undertook to represent the defendant before the referee, the Workman’s Compensation Board and the Common Pleas Court of this county.

The referee in the proceeding before him, after full hearing, found this fact:

“Fifth. We find that the claimant was legally employed at the time of her employment, and that the work she was to perform under her certificate of employment was legal work for one of her age, but that the work of operating the printing press, being a power-driven machine, was not legal employment for one of her age, but that her work on the printing press was known to the defendant and she was suffered and permitted to work on this machine by the defendant.”

The claimant was, therefore, awarded compensation, and neither she nor the defendant appealed from that decision.

The Globe Indemnity Company, however, not admitting any liability on its part, but in fact denying all liability under the insurance policy because of illegal employment, did take an appeal to the Workmen’s Compensation Board and from it to the Court of Common Pleas of this county. It considered that, under the terms of the very policy itself, it was bound to do so, not only for its own protection but for the protection of its employer, the defendant.

The petitioner claims that the insurance company had no suificient interest to entitle it to take the appeal to this court, or even the appeal to the Workmen’s Compensation Board, because it, on the facts as stated, was not liable under its policy. The petitioner further claims that the action of the insurance company was prejudicial to his interests; that he was satisfied with the award, and, further, that the claimant herself was satisfied with it. The claimant and the defendant have not made any specific agreement to abide by the decision of the referee or the Workmen’s Compensation Board, or the decision of this court on the claim under the Workmen’s Compensation Acts, as amended. But the defendant claims that the failure to appeal shows their consent, and that because of the decision of this court dismissing the whole proceeding, the opportunity for effecting an agreement upon the claim as presented has been lost. His hope was that such an agreement could be made, notwithstanding the fact, as set forth in his petition, that the parents of Marie Fleck have refused to enter into such an agreement. The defendant, therefore, because of the failure to give notice to him of the appeal to this court, and because he claims that the Globe Indemnity Company had no right to take the appeal, because it was not an interested party, now wants the judgment of this court vacated and set aside and the appeal of the insurance company dismissed. If this court should vacate the order which it has heretofore made and dismiss said appeal, the defendant would then have an opportunity to further proceed with his efforts to bring about an agreement between the parties, who he claims are the only ones interested.

The judgment of this court on the appeal was entirely proper and should not be disturbed. Under the terms of the policy, the insurance company was bound to protect itself and the interests of its emplóyer, and by taking the appeal which the policy gave it the right to do, it succeeded in setting aside the award of the Workmen’s Compensation Board in favor of the claimant and against the defendant.

There is nothing in the record, in our judgment, which brings this case within the decision of the court in Delaney v. Philadelphia Coal and Iron Co., 272 Pa. 578.

Order. — And now, to wit, Jan. 4, 1929, rule discharged.

From William J. Aiken, Pittsburg-h, Pa.


author: Van Dusen, J.,

text:
    Radinovitz’s Estate.

      Joseph R. Rose, for exceptions; Albert W. Sanson, contra.
    Nov. 15, 1929.
   Van Dusen, J.,

Two women claimed distribution as widow of decedent, also seven persons as children by the first alleged marriage. All were of the Jewish faith, and the first claimant produced a certificate in the Aramaic language, and proved its English equivalent and the circumstances under which it was issued by one of the witnesses who signed it. It thereby appeared that decedent came with the first claimant before a rabbi at Yonkers, N. Y., where they lived, and declared that the original marriage certificate was lost and asked for a new one. Jewish custom, it was testified, demands that a certificate be always kept by the married pair. Thereupon the husband (not the wife) acknowledged that the woman had been married to him under the laws of Israel. This certificate is not the original act of marriage, and has probably no probative effect of itself. But supported by the testimony of one of the witnesses before whom the declaration was made, and dignified by the religious motive which caused it to be made, it is particularly impressive admission of the marriage by the decedent, and such an admission is evidence as against others who claim under him: Com. v. Gamble, 36 Pa. Superior Ct. 146; Greenawalt v. McEnelley, 85 Pa. 352; Drinkhouse’s Estate, 151 Pa. 294.

Another admission is found in the divorce record offered by the second claimant, in which decedent declares that he was married to the first claimant.

Akin to an admission is the evidence of cohabitation and repute when decedent and the first claimant lived together in Yonkers as man and wife. This was testified by a man who knew them well, and who referred to seven mute witnesses in the seven children born to them. The sister of the claimant also testified that she was present at the original marriage ceremony; and while what she says is indirect in form (“I gave her away”), the substance of what she means is material. The finding that decedent was married to the first claimant is supported by ample evidence. This marriage was contracted in New York, and it is to be presumed, in the absence of proof, that the law of that state as to the validity of the marriage is the same as our own.

The second claimant then proved her marriage to decedent, and offered the record of a prior divorce from the first claimant. By this record it appears that decedent presented his petition to a court of Cuyahogo County, Ohio, and alleged that he had been a bona fide resident of that county for more than a year, and that his wife, the first claimant, in disregard of her marital obligations, had absented herself from him for a period continuing over ten years. He further alleged that his wife was not within the state, but was a resident of Yonkers, N. Y., and that he could not serve her except by publication. Thereupon service was had by publication, which was approved by the court, and a default decree of divorce was entered. The Auditing Judge held that this decree was void on its face for lack of service on the respondent personally; and he awarded distribution to the first claimant and her seven children.

It is urged in an excellent brief that this decree must be given full faith and credit under the Constitution of the United States. This is not put on the ground of matrimonial domicile in Ohio (Atherton v. Atherton, 181 U. S. 155; Thompson v. Thompson, 226 U. S. 551), of which there is no assertion in the divorce record, but on the ground that a deserted spouse may establish a bona fide domicile in another state and draw the other party there by publication

Haddock v. Haddock, 201 U. S. 562, which is cited to support this argument, does not so decide. Whether such a corollary may be drawn from that case is a perplexing matter which we do not feel called upon to go into, for the Pennsylvania cases from an early day down to the present time have taken the general view that a state in which there has been no matrimonial domicile cannot draw the respondent into a divorce action by publication (Grossman’s Estate (No. 1), 263 Pa. 139; Duncan v. Duncan, 265 Pa. 464, and Com. v. MacMaster, 88 Pa. Superior Ct. 37, following Colvin v. Reed, 55 Pa. 375; Reel v. Elder, 62 Pa. 308, and Platt’s Appeal, 80 Pa. 501), and we cannot say with certainty that any Federal ease conflicts with this view.

If there be such a doctrine, we would then have to consider whether the Ohio decree is prima facie proof of desertion, or whether it must be supported by proof at bar on the merits. If the latter, then the only proof is that the husband left the wife, which looks the other way.

Exceptant also argues that recent Pennsylvania statutes have changed our divorce policy to conform with that of Ohio, and, therefore, comity requires us to recognize the Ohio decree. The same Pennsylvania decisions, rendered since the enactment of these statutes, dispose also of the question of comity.

The exceptions are dismissed and the adjudication is confirmed absolutely.

Lamorelle, P. J., did not sit.


author: Harvey, P. J.,

text:
    Esposito, Administratrix, v. Esposito et al.

      Margiotti, Gillespie & Pugliese, for plaintiff; W. N. Conrad, for defendants.
    May 10, 1929.
   Harvey, P. J.,

18th judicial district, specially presiding,

This

comes before us upon rule to show cause on petition to open judgment and stay execution upon writ of fieri facias in the hands of the Sheriff of Jefferson County.

From the pleadings, the papers on file and the testimony we find as follows, viz.:

Dec. 14, 1928. Plaintiff, by her attorney, filed a statement of claim against defendants, averring the taking and retention of certain property therein set out belonging to the estate of Joe Esposito, deceased, of which she is administratrix.

Dec. 15, 1928. Common appearance for, and acceptance of service of statement of claim by, defendants filed by Messrs. Margiotti, Gillespie & Pugliese, attorneys.

Jan. 1,1929. Upon praecipe filed by Messrs. Margiotti, Gillespie & Pugliese the prothonotary entered judgment against the defendants upon default of answer to statement of claim filed Dec. 15, 1928.

Jan. 15, 1929. Praecipe for writ of fieri facias on judgment entered Jan. 1, 1929, filed. Writ issued and placed in the hands of the sheriff and levy made thereon and advertisement made for a sale of the property levied uppn Jan. 26, 1929.

Jan. 23, 1929. Petition to open the judgment and the writ of execution stayed pending further order of the court presented before F. L. Harvey, President Judge of Clarion County, 18th Judicial District, Judge William T. Darr, of Jefferson County, being absent upon assignment to servé in another district.

Rule to show cause granted, returnable current argument list, without prejudice to any valid lien.

Jan. 31, 1929. Answer to rule to open judgment and stay fieri facias filed.

Jan. 31, 1929. Petition to revoke or otherwise modify the order of Jan. 23, 1929, filed by plaintiff, upon which an order was made modifying the rule entered Jan. 23, 1929, fixing a day for hearing, to wit, Feb. 9, 1929, at 10 o’clock A. M.

Feb. —, 1929. Defendants filed motion to amend the petition to open judgment and stay writ of fieri facias.

Statement of the case.

May 25, 1928. Plaintiff, by her attorneys, filed a praecipe for writ of replevin against Frank Esposito, Genero Esposito, Anna Esposito De Nardo and Susie Lanzoni for a certain Buick sedan automobile, one black and white automobile blanket and one Nashua plaid blanket, with an affidavit of value, to wit, automobile, $700; black and white blanket, $10; Nashua plaid blanket, $5. At same time replevin bond in the sum of $1500 filed and duly approved by the prothonotary.

May 25, 1928. Writ of replevin issued and placed in the hands of the Sheriff of Jefferson County.

June 7, 1928. Counter-bond filed by Anna De Nardo (name “W. N. Conrad” typewritten on back thereof) in the sum of $1400, conditioned upon her ability to maintain title to the goods and chattels replevied; should she fail to successfully maintain title, then to pay the value of the goods and chattels aforesaid, together with all legal costs, fees and damages which the plaintiffs or other persons to whom such goods and chattels so replevied belong may sustain by reason of the issuance of said writ of replevin. 'Bond approved.

June 28, 1928. Return by J. B. Allebach, sheriff, of execution June 4,1928, of writ of replevin issued, and taking possession of the goods and chattels replevied and the holding thereof until June 7, 1928, when the counter-bond was filed and the said goods were returned to the defendants.

Statement of claim averring the purchase of the automobile and robes by Joe Esposito and his ownership therein, and that the same were the property of liis estate, of which Julia Esposito is administratrix, filed Dec. 14, 1928, upon which suit is brought; the proceedings subsequent as above set forth.

Discussion.

In the arguments of counsel upon this matter, the rule of court and the practice pursued in cases such as this have been adverted to. Would any court be warranted in approving practices not set out in, or sanctioned by, the rules of court, or contrary to its rules, even if followed for a considerable period of time? We think not. Sitting specially in this case we must follow the rules applicable thereto as we find and construe them.

Re: Rules of Court: “Rule 187. Appearances shall be entered and marked on the margin of the record of the case by the attorney in his own handwriting or by a written order to the prothonotary endorsed and filed in the case, the time of the filing the same to be endorsed thereon.”

Prsscipe for replevin, the beginning of the suit, was filed May 25, 1928, together with bond. On June 7, 1928, a counter-bond, executed by Anna De Nardo and Paul Lanzoni, was filed. On the back of the counter-bond is typewritten the name “W. N. Conrad.” That and nothing more, nor was the name W. N. Conrad “entered or marked on the record of the case by the attorney in his own handwriting or by written order to the prothonotary endorsed and filed in the case,” as prescribed in Rule 187. The matter laid until statement of claim was filed Dec. 14, 1928. The defendants were duly summoned to appear the last Monday of June, 1928, to answer. While a counter-bond was filed June 7, 1928, no appearance for the defendants by attorney was entered upon the records. Was the name of Mr. Conrad, typewritten on the back of the counter-bond, intended as an “appearance” for defendants? If so, it was clearly a failure to observe the provisions of Rule 187. Rules are made for the due and orderly conduct of the business of the courts. When an appearance is sought to be entered by an attorney in Jefferson County practice, the burden is explicitly placed upon him to enter it in the manner set out under Rule 187. To fail to do it leads to conditions and situations as existing in this case. Whatever the custom or usage, if any, or courtesies obtain between attorneys in practice in Jefferson County contravening the rules of court, when the rules are appealed to as in this matter we feel constrained to hold to the rules. Therefore, we must hold that the name “W. N. Conrad” on the back of the counter-bond filed does not comply with the requirements as to his appearance as attorney in the case at that time. However, was the entry of the counter-bond by defendant an “appearance?” The word “appearance” in law signifies the act by which a person against whom suit has been commenced submits himself to the jurisdiction of the court. It is the first act of defendant in court: 4 Corpus Juris, § 1, page 1314. “A defendant may appear in person or by counsel. If he appears by counsel, .the latter causes his name to be entered on the record. It is not necessary, however, that the defendant slioqld formally appear personally or by counsel to give the court jurisdiction and to make him amenable to its order, decree or judgment. He will be regarded as having appeared if he gives bail to the action, etc.:” McCullough v. Railway Mail Ass’n, 225 Pa. 118. “When he appears generally for any purpose, he is in court for all purposes:” Ruhland v. Alexander, 19 Pa. C. C. Reps. 577. Giving of a replevy bond conditioned to pay the amount of the judgment and costs recovered operates to make defendant a party to the suit: Blyler v. Kline, 64 Pa. 130, 4 Corpus Juris, § 25, page 1331. Cases noted under “75.” We feel that the filing of the counter-bond June 7, 1928, being before the return-day of the writ, puts the defendant within the jurisdiction of the court, is in effect an appearance and would require a service of the declaration or statement of claim upon the defendant before judgment could be entered. So holding, it necessarily follows that the entry of the “common appearance” for defendants by attorneys for plaintiff Dec. 15, 1928, their “acceptance of service” and the judgment by default entered against the defendants for want of an affidavit of defense are all of non-effect.

The prayer of petitioners is to open said judgment, “set aside the said common appearance,” “acceptance of service” and “praecipe for judgment by default for want of an affidavit of defense,” “quash said levy and stay the sale of said property levied upon.”

Holding, as we have done, that the proceedings as to common appearance and acceptance of service thereunder filed Dec. 15, 1928, are of non-effect, we might, under the prayer in the petition, decree that the judgment entered pursuant thereto be opened, thus returning the whole matter for adjudication upon such defenses as the defendants may conclude to make, but, inasmuch as the prayer of the petition further asks the common appearance, acceptance of service and prascipe for judgment by default, etc., be set aside, which if done would render the judgment entered null, we feel that the issues here involved in the ease may all be properly and orderly disposed of by the following decree to be entered in the matter, to wit:

And now, May 10, 1929, after hearing arguments of counsel, a careful review of briefs filed and the citations therein made, upon due consideration, rule to show cause is made absolute. And it is hereby ordered and decreed that the common appearance, acceptance of service and praecipe for judgment by default for want of an affidavit of defense be and are hereby set aside; the judgment entered declared and is null, and the writ and levy made pursuant to said judgment be and is quashed.

From Raymond E. Brown, Brookville, Pa.


author: Lewis, J.,

text:
    Steiner v. Girard Trust Company, Trustee, and Fink.

      Frank Rogers Donahue, for plaintiff; Harry W. Steinbrook, for defendant.
    June 14, 1929.
   Lewis, J.,

The plaintiff, by her bill in equity, seeks to compel the defendants to turn over to her a collateral bond which the defendant Fink delivered to the Girard Trust Company under the circumstances set forth in the following findings of fact, which are taken from 'the bill and answers:

1. On Nov. 29, 1922, Frank Steiner (husband of the plaintiff) and Samuel Weisberg were the owners of No. 2102 West Norris Street, Philadelphia, and as such they executed a mortgage on said premises in the sum of $7000 in favor of Central Trust and Savings Company of Philadelphia.

2. Subsequently, they conveyed the premises subject to the mortgage on Jan. 24, 1924; the property, subject to the mortgage, was conveyed to Annie Morgan, sister of the defendant Fink.

3. Shortly thereafter, the mortgagee called the mortgage, but the Girard Trust Company, trustee under the will of Irene Adams Seltzer, accepted an assignment of the bond and mortgage from the Central Trust and Savings Company of Philadelphia, at the same time receiving from the defendant Fink, whose sister was still record owner of the property, the bond in question.

4. Subsequently, the defendant Fink became the owner of the property and continued to be such until the foreclosure of the mortgage by the plaintiff in this case. The plaintiff, mortgagee, bought the property in at the sheriff’s sale for $50.

5. Recently, the Girard Trust Company, trustee, called the mortgage for payment, but, upon being paid in full by the plaintiff, executed to her an assignment, in the usual form, of the mortgage and “also the Bond or Obligation in the said Indenture of Mortgage recited, and all Moneys, Principal, and Interest, due and to grow due thereon. . . . Together with all Rights, Remedies and Incidents thereunto belonging. And all its Right, Title, Interest, Property, Claim and Demand in and to the same.” No mention is made in the assignment, nor was anything said verbally at the time of the transaction, about the bond executed by Fink.

6. The Girard Trust Company returned to Fink his bond, but several days later the plaintiff, having learned of the bond, demanded delivery of it to her.

Discussion.

In her bill the plaintiff prayed discovery of the terms of the bond. In his original answer the defendant Fink denied her right to the information, but, upon being ordered so to do, filed an amended answer, attaching a copy of the bond, which we now have before us. It is an ordinary form of mortgage bond, the condition of which is the payment by the obligor unto Girard Trust Company as trustee, “its and their certain Attorney, Successors, or Assigns,” of the amount of the mortgage, to wit, $7000, at the expiration of three years from Nov. 29, 1925. The bond also contains, in writing, the following provision: “This bond is given to secure the payment of a certain other bond and mortgage dated the twenty-ninth day of November, 1922, and the mortgage recorded at Philadelphia in Mortgage Book J. M. H., No. 2796, page 370, etc., secured upon premises situate on the South side of Norris Street, at the distance of nineteen feet six inches Westward from the West side of Twenty-first Street, in the said City of Philadelphia, which said bond and mortgage by assignment dated the twenty-seventh day of October, 1925, and intended to be forthwith recorded, was granted and assigned unto the said Girard Trust Company, Trustee aforesaid, its successors and assigns, said premises being in the Thirty-second Ward of the said City of Philadelphia and said bond and mortgage is for the sum of Seven Thousand Dollars ($7000).”

The plaintiff is relying upon the general rule, about which there can be no question, that an assignment of a debt or of a bond and mortgage carries with it all securities held by the assignor for the same debt, unless it is otherwise expressly agreed. Statements of the proposition are to be found in numerous authorities, from which wé quote only a few:

“In cases of assignments a debt where the assignor has collateral securities therefor, the assignee will be entitled to the full benefit of such securities unless it is otherwise agreed between the parties. Thus, for example, the assignee of a debt secured by a mortgage will be held in equity entitled to the benefit of the mortgage:” 3 Story, Equity Jurisprudence (14th ed., 1918), § 1410, page 66.

“In Beaver Trust Co. v. Morgan, 259 Pa. 567, Mr. Justice Stewart said: ‘When the Peoples National Bank purchased from the Monaca Bank the obligation of the Jacks, it acquired as well, by operation of law, whatever was pledged for its payment, the same to be held and used, however, for no other purpose than that for which it had been originally pledged. A purchase of a debt is a purchase of all the securities for it, whether named or not at the time of the assignment, unless expressly agreed at the time they shall not pass:’ Foster v. Fox, 4 W. & S. 92.”

Likewise, in Edwards v. Bay State Gas Co., 184 Fed. Repr. 979 (Cir. Ct. D. Del., 1911), it is stated: “It is a general rule that, in the absence of an agreement to the contrary, the assignee for value of a note, bill, judgment, decree or other evidence of indebtedness, for the payment of which the assignor, holds collateral security, is in equity entitled, by virtue of the assignment to him of the principal obligation or evidence of indebtedness, to the collateral as such, although not named in the instrument of assignment, and regardless of his knowledge or lack of knowledge of the existence of such collateral.” See, also, 2 Elliott on Contracts, § 1455, page 724; 4 W. H. Page, The Law of Contracts (1920), § 2266; 1 Williston on Contracts (1920), ;§ 432, page 819; Craig v. Parkis, 40 N. Y. 181; Tidoute Savings Bank v. Libbey, 101 Wis. 193.

So far as assignments of mortgages are concerned, we find authorities to the same effect. Thus, in the recent (8th) edition of 2 Jones on Mortgages, § 1052, page 468, it is stated: “In general, it may be said that an assignment of a mortgage is an assignment of all the securities which the assignor holds against the mortgagor or others for the same debt, and not merely of the claim against the mortgagor. It transfers any judgments that may have been obtained against indorsers or others. It passes, also, a mortgage given as collateral security to the mortgage debt assigned.”

And likewise in 41 Corpus Juris, § 696, page 681: “Except as is otherwise agreed, the assignment of a mortgage will invest the assignee with all the rights, powers and equities possessed by the mortgagee at the time of the assignment, including the benefit of any collateral undertaking, obligation, or security, which constitutes a part of the mortgage security. . .

In Stillman v. Northrup, 109 N. Y. 473, the court said: “But it is well settled that the assignment of a bond and mortgage carries with it the guaranty of payment or collection, although not mentioned in the assignment. The transfer of the debt to the plaintiff carried with it, as incident thereto, all the securities for its payment.”

The argument made on behalf of the defendant Fink is that the obligation undertaken by him was one to the Girard Trust Company alone, and one of which the plaintiff can take no advantage. It would seem that there might be something in support of this. In other words, the original transaction was put through on the basis of the bond executed by Steiner and Weisberg, together with the mortgage on the property. Subsequently, it was arranged to have the Girard Trust Company take over the mortgage, and in doing so it required Pink to execute his bond to it. We have nothing in this record, however, to indicate that the undertaking of Fink to the Girard Trust Company was in any way a “personal contract,” by which is meant that Fink undertook merely to see that the Girard Trust Company was paid. If this were the fact, we would be of the opinion that the plaintiff would not be entitled to receive the bond under the assignment. In 41 Corpus Juris, § 696, page 681, immediately after the quotation given above, it is said that “a contract of a strictly personal nature does not pass with the mortgage.” Likewise, in 2 Jones on Mortgages, § 1053, page 469, it is stated: “The assignment of mortgage does not carry with it a separate contract of guaranty of the payment of the mortgage debt, if this is strictly a personal engagement, and. it is construed to be such when it is made to the holder of the mortgage by name, ‘his executors and administrators.’ The surety is not holden beyond the precise terms of his contract, and these words, in their plain and natural import, do not signify any intention to indemnify any one but the person to whom it was given. This person having put it out of his power to receive payment, the purpose of the guaranty is accomplished and the guarantor is discharged. A guaranty is not generally a negotiable contract.”

Here, however, as before stated, we have nothing which so limits Fink’s undertaking. The bond is made in favor of the Girard Trust Company, trustee, and its successors and assigns, and it is specifically stated as being given “to secure the payment of a certain other bond and mortgage.”

On the record before us, therefore, we see no escape from the operation of the general rule, under which plaintiff is entitled at least to have the bond delivered to her. We have given a great deal of consideration to the argument earnestly made by counsel for Fink, in which he points out that if recovery is permitted on the bond, we will have the anomalous situation in which the wife of one of the original mortgagors has both the land and the money. Here, again, we do not know whether the plaintiff is acting for or in any manner in behalf of her husband, in which case it is possible that there has been an extinguishment of the mortgage debt. It was stated orally at the argument that the plaintiff purchased the mortgage with funds of her own. We do not feel that we can go into these matters under the record as it is now made up. Such consideration might have a bearing if and when the plaintiff seeks to hold the defendant on his bond.

Point is made of the fact that this collateral bond was not given at the time of the creation of the mortgage, but was given subsequently. We see no particular force in this, unless it might be as a circumstance to show that it was a personal contract in favor of Girard Trust Company, but, as pointed out, there is nothing in the record to substantiate this possibility. The bond was given at the time the Girard Trust Company acquired the mortgage, and later, when it executed the assignment, all of the securities held by it as assignor passed. This is all we decide upon this bill and answer, merely that plaintiff is entitled to the bond. As to whether, under all of the circumstances, there is a defense to the bond when sued upon, we make no conclusions whatsoever.

Conclusions of law.

1. The bond executed by Fink and delivered to the Girard Trust Company was not an undertaking in favor of the Girard Trust Company alone, but ran to Girard Trust Company and its assigns.

2. When the Gii’ard Trust Company assigned to the plaintiff the bond and mortgage securing the debt of $7000, she became entitled to all collateral held by the Girard Trust Company as payment for the bond, in the absence of a specific agreement to the contrary. The fact that the plaintiff did not know of the existence of the Fink bond, and the further fact that no specific mention is made of it in the assignment to the plaintiff, are immaterial.

Decree nisi.

And now, June 14,1929, upon consideration of the foregoing case and under the facts established in the pleadings, it is ordered, adjudged and decreed as follows:

1. That the defendant, Arthur I. Fink, shall deliver to the plaintiff, Celie Steiner, the bond executed by him (under date of Oct. 27, .1925) in favor of Girard Trust Company, trustee under the will of Irene Adams Seltzer, deceased.

2. The costs of this proceeding shall be paid by the defendants, Girard Trust Company and Arthur I. Fink.

Notice of the foregoing decree nisi shall be given to the parties or their counsel, and if no exceptions thereto are filed within two days from the receipt of such notice, the decree is to be made final.


author: Evans, P. J.,

text:
    Peeling v. Delaware, Lackawanna & Western R. R. Co.

      Reese, Morgan & Jackson, for rule; Duy & Hemingway, for respondent.
    May 3, 1929.
   Evans, P. J.,

This matter comes before the court on petition, answer and testimony taken before the court.

The prayer of the petition is for a rule on the prothonotary and plaintiff’s counsel to show cause why the entry made on the docket and record of said proceeding, to wit, “Issued June 29’, 1928,” should not be changed and corrected so as to conform with the proper date when said summons was issued, to wit, Sept. 8, 1928, and that the number given said ease be changed and corrected so as to conform with the number used on the date when said summons was actually issued.

This suit involves a claim for damages on account of fatal injuries sustained by Price M. Peeling, husband of the plaintiff, as a result of a truck which he was operating being struck by a train of the defendant company on its grade crossing east of the Danville State Hospital on July 2, .1927.

If the docket entries were to be changed and corrected, as defendant’s counsel contend they should be, the record would disclose that the suit had been brought too late; that the plaintiff’s suit was barred by the statute of limitations at the time the same was brought.

The suit was based on the Act of April 26, 1855, P. L. 309, which reads as follows:

“Section 1. The persons entitled'to recover damages for any injury causing death shall be the husband, widow, children or parents of the deceased, and no other relative, and the sum recovered shall go to them in the proportion they would take his or her personal estate in case of intestacy, and that without liability to creditors.
“Section 2. The declaration shall state who are the parties entitled in such action; the action shall be brought within one year after the death and not thereafter.”

From the pleadings and testimony, we find the following facts:

1. The plaintiff’s husband was injured in a grade crossing accident on the defendant’s railroad July 2, 1927, and, as a result of the injury received, died the same day, July 2, 1927.

2. The praecipe for the summons was filed June 29; 1928.

3. The same day the prothonotary, in obedience thereto, prepared a summons in trespass ready for delivery to the sheriff and placed the same in the vault among other papers.

4. The plaintiff’s statement was filed Sept. 8, 1928.

5. The summons remained in the vault until Sept. 8, 1928, when the prothonotary delivered the same to the sheriff, together with a copy of the plaintiff’s statement, for service.

6. The praecipe and summons were not numbered and docketed until Sept. 8, 1928.

7. The summons, together with a copy of plaintiff’s statement, was served on the defendant Sept. 11,1928.

In the light of these facts, was this suit brought within one year from the date of the death of the plaintiff’s husband? These facts are not in dispute.

Section 2 of the Act of April 26, 1855, P. L. 309; states that, for injuries resulting in death, “the action shall be brought within one year after the death, and not thereafter.”

The death of the plaintiff’s husband occurred July 2, 1927. Was this suit brought within one year after his death? If so, it must have been brought on or before July 2, 1928.

When is a suit brought? What steps constitute the bringing of a suit? What must a plaintiff do in order to bring a suit within the meaning of section 2 of the Act of April 26, 1855, above quoted?

The plaintiff’s counsel filed a praecipe for a summons in this case with the prothonotary June 29; 1928, and requested him to issue a summons and direct the sheriff not to serve the same until he had an opportunity to file a plaintiff’s statement, which he would do in a day or two. The prothonotary marked the praecipe as of that date, June 29; 1928, and at once prepared a summons in trespass ready for delivery to the sheriff for service. He did not give the suit a number or make a docket entry or record of the same in the continuance docket, but placed the praecipe and summons, prepared as aforesaid, in the vault along with other papers. They remained there until Sept. 8, 1928, when plaintiff’s counsel again appeared at the prothonotary’s office and filed a plaintiff’s statement, when it was discovered that the record did not show a suit had been brought. On the same day, Sept. 8, 1928, the prothonotary gave the suit a number, viz., No. 195, October Term, 1928, and made a record thereof in the continuance docket and delivered the summons and a copy of plaintiff’s statement to the sheriff for service, and he served the same on the defendant Sept. 11, 1928.

The suit was made returnable to the first day of the next, October, term of court, being the first Monday in October, 1928, and the rule to show cause why the docket entries should not be changed and corrected, now for determination, was granted Oct. 5,1928. There was no laches.

When the plaintiff’s counsel appeared at the prothonotary’s office Sept. 8, 1928, for the purpose of filing a plaintiff’s statement, a search of the records failed to disclose that a suit had been brought or commenced. The question for determination is, therefore, a very narrow one: Was this suit brought or commenced on or before July 2, 1928?

In Johns’ Estate, 253 Pa. 532, it is held: “A writ of scire facias to revive a judgment is not ‘sued out’ or ‘issued’ within the meaning of the Act of June 1, 1887, P. L. 289, when, in pursuance of a praecipe, the writ is prepared by the prothonotary, marked filed, indexed and docketed, but remains in the prothonotary’s office and is never delivered to the sheriff for service, and such writ does not, therefore, continue the lien of a judgment. A writ is not ‘issued’ or ‘sued out’ until it passes from the hands of the prothonotary to the sheriff for service.”

The contention of plaintiff’s counsel is that the filing of the praecipe constituted the “initiation,” the “commencing” or the “bringing” of the suit within the meaning and purview of section 2 of the Act of April 26, 1855, P. L. 309. With this contention we cannot agree.

An inspection of the records in the prothonotary’s office should disclose whether a suit has been commenced or brought.

In the instant case it is true that a praecipe for summons in trespass had been filed with the prothonotary ordering and directing a summons to issue June 29, 1928, and that, in pursuance thereof, the prothonotary the same day prepared a summons ready for delivery to the sheriff for service and placed the same, together with the praecipe, in his vault. - Both remained there until Sept. 8, 19*28. They were neither indexed, docketed or given a number on the record. When plaintiff’s counsel appeared at the prothonotary’s office Sept. 8, 1928, for the purpose of filing the plaintiff’s statement, a search of the records failed to disclose a suit had been commenced or brought. No record of a suit could be found. There was none. None had been made. There was no entry in the continuance docket of a suit having been brought or commenced by Mary Peeling against the Delaware, Lackawanna and Western Railroad Company. The summons was not indexed, docketed or delivered to the sheriff for service until Sept. 8, 1928, seventy-one days after the praecipe had been filed with the prothonotary. The plaintiff’s counsel, on going to the prothonotary’s office Sept. 8, 1928, for the purpose of filing a plaintiff’s statement, searched the records in vain for a record of the suit. There was none. The record did not disclose a suit had been brought. No record of a suit existed.

The records of the proceedings of a court of record, made and kept pursuant to law, constitute the legal evidence of its judgments, orders and other proceedings: 15 Corpus Juris, 979.

The action begins, not with the date of the praecipe, but with the issuing of the summons or capias: Trickett’s Penna. Law of Limitations, page 227; Bovaird & Seyfang Co. v. Ferguson, 215 Pa. 235.

A summons is not sued out until it passes from the hands of the clerk to the sheriff, or other proper officer, to be executed, or sent by mail or otherwise, with a bona fide unequivocal intention to have it served: 1 Corpus Juris, 1154, Note 35 (Á).

The general rule, except where it has been otherwise provided by Statute, is that an action is commenced, so far as to stop the running of the statute of limitations, from the time the summons or other process is issued “in good faith,” according to the language of some statutes, and the declaration when filed relates back to the commencement of the suit and thereby prevents the running of the statute of limitations. A mere direction to the clerk to issue a summons, although as a matter of fact no summons is ever actually issued against defendant sought to be charged, is not a commencement of an action: 37 Corpus Juris, 1055.

In Johns’ Estate, 253 Pa. 532, supra, at page 536, Mr. Chief Justice Brown, in speaking of a writ of scire facias to revive and continue the lien of a judgment, said: “That it (the writ) must actually go out and be placed in the hands of the sheriff if it is to be regarded as sued out and issued, has been distinctly held in many jurisdictions. In Johnson v. Farwell, 7 Me. 370, the question was whether the writ was actually sued out within six years after a trespass had been committed, so as to avoid the statute of limitations. It was held that actions are ‘commenced and sued’ when the writ is sued out and delivered to the sheriff or his deputy, or sent to either, with the bona fide intention of having the same served, and Chief Justice Kent was cited as holding that an action is commenced at the time of suing out the writ and that good sense as well as truth on the subject concur that the writ issues when it is delivered to the sheriff or his deputy, or sent to either of them, with a bona fide intention to be served on defendant. ‘The suing out of a summons is the commencement of a suit, but the writ is not considered as legally sued out until it is delivered to the sheriff with authority to him to make service, or is transmitted to him for the purpose of being served. The mere making out, signing and sealing of the summons by the clerk and delivery to plaintiff or his attorney is not a commencement of suit so as to save the bar of a limitation:’ Hekla Ins. Co. v. Schroeder, 9 Ill. 472. ‘A writ of summons must be sued out. It is not enough to make out the writ and leave it indefinitely in the clerk’s office. The writ must go out. Certainly an order not sent out could not be regarded as one issued. . . . The mere writ, lying in the clerk’s office, in no officer’s hands who could enforce it, is not an issuing of an execution within the spirit and intent of the act:’ Burton v. Deleplain, 25 Mo. 376. ‘There seems to be no question as to what is meant by suing out of a summons. There is a uniformity of decision that the term is construed as meaning when the writ leaves 'the hands of the clerk to be delivered in good faith to the sheriff to be executed. As was said in Ex parte Locke, 46 Ala. 77, by Peck, C. J., the suing out of a writ is the commencement of an action. A writ cannot be said to be sued out until it passes from the hands of the clerk to the sheriff to be executed:’ West v. Engle, 101 Ala. 509. To the foregoing authorities there may be added the following: Mills v. Corbett, 8 How. Prac. (N. Y.) 500; Southern Ry. Co. v. Dickens, 163 Ala. 114; American Bridge Co. v. Wheeler, 35 Wash. 40; Bourn v. Robinson, 49 Texas Civil App. 157; Marshall v. Matson, 171 Ind. 238; Webster v. Sharpe, 116 N. C. 466; People ex rel. v. Gebbardt, 154 Mich. 504; Howell v. Shepard, 48 Mich. 472; Pease v. Ritchie, 132 Ill. 638; Wilkins v. Worthen, 62 Ark. 401; Ross v. Luther, 4 Cowen, 158; White v. Reed, 60 Mo. App. 380.”

In the light of these authorities and the undisputed facts in the case, we are of opinion the rule should be made absolute.

And now, May 3, 1929, the rule is made absolute, and it is ordered and decreed that the record in the instant case should be amended so as to read “Summons issued Sept. 8, 1928,” the date on which the same was actually issued and delivered to the sheriff for service, and that the number given the case be changed and corrected so as to correspond with the number used on the date when the summons was actually issued on Sept. 8, 1928.

From R. S. Hemingway, Bloomsburg, Pa.


author: Henderson, J.,

text:
    Gins v. Hoffman.

      John Duggan, Jr., for plaintiff; N. W. Rosenberg, for defendant.
    May 7, 1929.
   Henderson, J.,

The action in this case is in trespass for damages on account of personal injuries to Dorothy Gins, a minor; the jury returned a verdict for the defendant. A motion for a new trial was filed by the plaintiff, alleging several reasons, which in reality narrow down to two questions: (1) Was the verdict for the defendant supported by the evidence; and (2) was there an error in the charge of the court?

On March 31, 1927, Dorothy Gins, age ten years, a daughter of the plaintiff, Solomon C. Gins, was on her way from school in Belle Vernon, going west down State Street, which is rather steep, and walking on the sidewalk on the southern side of said street. At the same time an automobile belonging to the defendant, in charge of one of his employees, was being operated up State Street, and had reached a point along said street near the intersection of State Street and Market Street, when the automobile suddenly stopped and started backwards down the hill. It ran backwards a short distance and struck the curb along the brick sidewalk in front of the residence of a Mr. Vance, running up over the curb and oh to the sidewalk, and struck the little girl, Dorothy Gins, who was on the sidewalk, crushing her against a stone wall along the inside of the sidewalk, where the automobile was stopped. The little girl was seriously injured. On behalf of the plaintiff, it was testified that the driver of the automobile, prior to starting up State Street, which is a very steep grade, stated to five young men, who had been employed by the defendant to assist the driver in the distribution of handbills, that the brakes were not good or working well; it was also shown by the plaintiff that there was a pounding noise in the rear portion of the automobile as it was traveling up State Street, and that just before the car started backwards, there was a noise like a “klink,” as though something had let loose. Plaintiff further proved that after the accident the automobile was examined while at the scene of the accident, and that neither the foot nor the emergency brake would operate. On the part of the defendant, it was testified that the automobile was in good mechanical condition, in daily use, regularly repaired, and that it was being operated by a competent chauffeur; that the brakes were in good condition, and, as far as known, there was no mechanical defect in the automobile. Mr. Lawrence Yant, an automobile mechanic at Roley’s garage in Belle Vernon, took the car from the sidewalk to his garage, towing it in shortly after the accident, and, on an examination, discovered that the damage to the car consisted in the universal joint being twisted off and the upper half of the torque arm broken, and that when the universal joint and the torque arm were repaired, the brakes were in-good shape and the car was all right. It was shown that this particular type of automobile was so constructed that when the universal joint was twisted off and the torque arm broken, no power could be transmitted from the engine to the rear axle, and that the brakes are all thrown out of commission, so that there is no control over the movements of the automobile, either by the motor or by the brakes. The mechanism of the car and its operation and control were very minutely and at length explained by the witness to the jury. He said that with these parts broken, the driver of the automobile could have no control whatever over the car after the break occurred, except by the steering. Mr. Curry, the driver of the automobile, testified that the car operated well and that he started up State Street in low gear, State Street being very steep and rough, and that when near the intersection of Market Street he felt a jerk, as though something had let loose, and the car started back down the hill, its motor still running; that he attempted to hold it with his brakes, but they would not work, and that the car hit the curb and the little girl on the sidewalk before he could get it stopped. The contention of the defense was that it was an unavoidable accident and that the driver did all that he could to control the car in the sudden and unexpected danger which arose, and used his best judgment under the circumstances.

The statement of claim alleged that the injuries to the little girl were caused by the negligence, carelessness and recklessness of the defendant in failing to use the said roadway in a legal, careful and prudent manner; in failing to keep the car in the roadway and in driving it upon the sidewalk; in failing to have the motor-vehicle under proper control; in failing to have the brakes and other mechanism controlling the car in proper and safe condition ; in failing to employ proper, suitable and competent help or assistance to properly examine and repair said automobile, and negligently backing said motor-vehicle from its proper place in the roadway on to the sidewalk without warning. The case was tried upon the theory that it was one of ordinary negligence, to which the defense of unavoidable accident was set up. The plaintiff, in addition to proving the accident, undertook to prove that the accident was caused by the negligence of the defendant, or his employee, and that such negligence was the direct cause of the injury. The jury accepted the version of the defense and found for the defendant. It is now claimed (first) that the verdict is unsupported by the evidence. Upon the theory on which the case was tried, it was a question for the jury, and on consideration of all the evidence in the case, we are not able to say that the verdict is unsupported by the evidence. The testimony of the driver of the automobile, supported as it is by the testimony of Mr. Yant, would be sufficient to sustain the contention of the defendant, if believed. The explanation of the damage to the automobile and of the mechanism and working of the parts of the automobile, as given by the witness, Yant, is perfectly consistent with the contention of the defendant, and we have no doubt was a controlling factor in the jury’s verdict. We could not grant a new trial for the reason that the verdict is unsupported by the evidence.

It is also claimed now that the court was in error in its charge, in not applying the doctrine of res ipsa loquitur to the case. If the doctrine of res ipsa loquitur does not arise under the facts as testified, then the charge of the court is correct. The plaintiff submitted no points for special instructions or requests for charge, and at the close of the charge of the court, the following colloquy took place:

The Court: Has counsel on either side any requests for further instructions?
Mr. Dug-gan: Not particularly, Tour Honor, as to the law, but I would like Tour Honor to call the attention of the jury to the testimony of the doctors that the plate which is now in the leg of Dorothy Gins will in all probability require removal, and that they should take into consideration in making up their verdict.
Mr. Rosenberg: I have no objection to that, providing the jury find that the plaintiff should recover.

The court then instructed the jury as to the matter embraced in that request. The plaintiff now complains that the trial judge was guilty of error for having failed to say something to the jury which he was not requested to say. The case was submitted by the trial judge in the charge on the theory that it was ene of ordinary negligence, one in which no presumption of negligence arose from the happening of the accident, and that the plaintiff carried the burden of showing negligence. Having invited requests or suggestions from counsel at the end of the charge, and plaintiff, neither complaining of the inadequacy here urged nor submitting requests for instructions as to the law different from that given by the trial judge, we might, under the case of Gillett v. Yellow Cab Co., 87 Pa. Superior Ct. 365, justify the refusal of the motion for this reason.

On the whole case, we are of the opinion that the doctrine of res ipsa loquitur does not apply to the facts in this case, but that it is a case of simple negligence and was tried upon the correct theory. The application of the doctrine of res ipsa loquitur in Pennsylvania has been confined to cases where there is an absolute duty or obligation amounting practically to that of an insurer. The rule is stated by Mr. Justice Kephart in the case of Fitzpatrick v. Penfield, 267 Pa. 564, as follows: “It is a well-known principle that negligence is never presumed, and, generally speaking, it must be affirmatively shown, except where there is an absolute duty or an obligation amounting practically to that of an insurer, when the maxim [res ipsa loquitur] expresses the law: Johns v. Pennsylvania R. R. Co., 226 Pa. 319; Zahniser v. Pennsylvania Torpedo Co., 190 Pa. 350.”

The driver of an automobile truck occupies no such contractual relation to the plaintiff as does the carrier or the owner of an elevator. It is common knowledge that automobiles sometimes get out of control without the driver’s fault; some part of the mechanism of the car may break without any fault on the part of the driver. His car may even be deflected from the roadway without any fault on his part. In traveling along the highway or street, he is not an insurer to those using the sidewalk that some accident will not happen to his car. If, perchance, it was to leave the highway or street and strike one on the sidewalk, where the automobile ordinarily had no right to be, slight evidence perhaps of the negligence of the driver of the automobile would be sufficient to justify a recovery. And so, the backing of the car on the steep part of State Street may have occurred without fault of the operator of the car, and the backing of the car may have continued without fault of the operator up until the time it struck the curb and crossed the sidewalk to the stone wall. It may have been due to either a partial or complete loss of control of the car under the circumstances, not necessarily amounting to negligence, as was claimed in this case. Iii order to make the doctrine of res ipsa loquitur apply, it must be held that the act of the car in backing suddenly down State Street implied negligence. This it does not necessarily do, as it is a well-known fact that the mechanism of cars or automobiles'may break without any negligence whatever, as far as controlling the movements of the car is concerned, as was shown in this case. The circumstances here are not free from dispute, and even if it be held that the thing which caused the accident was under the exclusive control of the defendant or his agent, yet it is not true that the accident would not have happened if the defendant or his agent had used proper care, because it can be accounted for upon a theory other than that of negligence or want of care. The breaking, of the universal joint and the torque arm could happen without any negligence on the part of the defendant or the driver; accidents of that kind are liable to happen at any time. The most that the facts here could justify would be an inference of negligence. Even in this class of cases, the mere happening of the accident does not raise the presumption of negligence, as negligence is not presumed, but the circumstances may be such that they amount to evidence from which it may be inferred: Durning v. Hyman, 286 Pa. 376.

On the whole, we are of the opinion that the case was properly tried and submitted to the jury, and that no legal reason has been shown why a new trial should be granted.