author: Lewis, J.,

text:
    Great Council of Pa., etc., v. Wingohocking Tribe No. 33, etc.

      Walter L. Sheppard and Alexander M. DeHaven, for plaintiff.

      Frank H. Warner, for defendant.
    Dec. 3, 1930.
   Lewis, J.,

Plaintiff seeks an injunction restraining the defendants and all others associated with them from employing the ritual of the Improved Order of Red Men, or the name of Wingohocking Tribe No. 33, Improved Order of Red Men of Pennsylvania, also a detailed accounting of the moneys and property received by the defendant corporation up to July 2, 1928, and a decree ordering that the defendant corporation turn over to plaintiff all moneys, wampum, property and effects in defendant’s custody and control on July 2, 1928.

No substantial issues of fact are raised by the pleadings. The averments of the bill and the admissions in the answer, coupled with the agreement of counsel of record, sufficiently establish all the material facts, namely:

Findings of fact.

1. The defendant, Wingohocking Tribe No. 33, Improved Order of Red Men of Pennsylvania, is a corporation duly chartered under the laws of the State of Pennsylvania on Nov. 3, 1877.

2. The defendant corporation was formed and chartered to afford pecuniary relief to its members suffering from sickness and distress.

3. The value of the assets in the hands of the defendant corporation, as of July 2,1928, was $24,838.65.

4. Section 5, article xxiv, of the by-laws of the Great Council provides that upon expulsion the expelled tribe shall thereupon deliver to the Great Sachem, or his nominee, the moneys, wampum, properties and effects of the said tribe.

5. The defendant tribe, having refused to pay the per capita tax due from it to the Great Council of the United States, was in contempt, and was legally suspended and expelled on July 2, 1928.

Discussion.

The expulsion having been declared legal in all respects (vide Isoka Tribe v. Great Council of the Improved Order of Red Men, 98 Pa. Superior Ct. 390), defendant corporation is no longer a subordinate body of the Improved Order of Red Men, and retention of the name and ritual is, therefore, unjustified.

Agreement of counsel as to the assets of defendant corporation as of July 2, 1928, renders unnecessary the detailed accounting originally requested.

Hence, there remains to be disposed of but one vital question, viz., whether section 5, article xxiv, of the by-laws of the Great Council is of legal validity, and whether assent thereto, necessarily implied by each individual’s subscription to the rules of the order, renders imperative the delivery to the Great Council of the accumulated funds of the expelled tribe.

As between the defendant corporation and its individual members, title was undoubtedly in the corporation. Even had the defendant been unincorporated, this would have been the case. “Ownership of any funds or property in form acquired or held by the association is vested in the members jointly; and by becoming a member, a person ordinarily acquires not a severable right to any of its funds or property, but merely a right to the joint use and enjoyment thereof so long as he continues to be a member:” 7 Corpus Juris, 1106. That the legal title to the funds is in the defendant corporation is, therefore, sufficiently obvious. That the funds are charged with a trust in favor of the individual members for the payment of sick and funeral benefits is equally obvious and amply supported by the decision of our Supreme Court in Knights of the Golden Eagle v. Taylor et al., 278 Pa. 9, 18: “The compact to which defendants subscribed upon becoming members of the Knights of the Golden Eagle stipulates certain benefits to be enjoyed and obligations to be assumed, one of which is, upon a dissolution of their subordinate association, to pass over all funds to the Grand Castle, so that body may continue in its own proper way to carry out the general trust on which such funds had theretofore been held. . . .” This general trust cannot be summarily discharged nor these vested rights defeated by a by-law. “It seems to be a general rule that property belonging to a subordinate lodge or association does not upon revocation by the parent society become the property of the latter; and a provision to that effect, made by the supreme lodge or council, is void as a confiscation without judicial process of property owned by the subordinate body,” 15 L. R. A. (N. S.) 336, citing Austin v. Searing, 16 N. Y. 112; Wicks v. Monihan, 130 N. Y. 232; Wells v. Monihan, 129 N. Y. 161. This general rule has been upheld in Pennsylvania in Wolfe v. Limestone Council, 233 Pa. 357, and State Council v. Emery, 219 Pa. 461, 466. The latter case quotes with approval the language of the court in Goodman v. Jedidjah Lodge, 67 Md. 117, 127: “Whatever powers the higher lodges in such an organization as this may have to make rules or laws for the government of the subordinate lodges and the discipline of their members, we think it quite certain that the courts can never recognize as valid any rule or law so made, the effect of which is to confiscate property, or arbitrarily to take away property rights from one set of members and give them to another set.” Paragraph 23 of the bill in the instant case definitely announces an intention, in accordance with a by-law, to bestow upon a tribe later to be constituted, the property of the defendant corporation. If this by-law contemplates the transfer of the fund discharged of the trusts already imposed upon it, the by-law is undoubtedly void as a confiscation of vested rights without judicial process.

On the other hand, the courts in this and other jurisdictions have uniformly recognized the necessity of maintaining discipline and the consequent right of “the higher lodges ... to make rules or laws for the government of the subordinate lodges and the discipline of their members:” Goodman v. Jedidjah Lodge, supra. In the case before us, the funds in dispute have not been contributed exclusively by the present members, but represent a process of accumulation extending over a long period of time, 'possibly since Nov. 3, 1877. If, whenever a similar fund became large enough to suggest its division among the living members (who had perhaps contributed relatively little to its accumulation), the lodge could then sever itself, voluntarily or by inviting expulsion, it is probable that only the poorer lodges would long remain loyal. The provision that upon dissolution these long-accumulated funds be turned over to the superior body is designed to forestall just such a situation. Such a provision, unless confiscatory of vested rights, would seem within the disciplinary powers of the parent body. In holding the legal title to the fund, subject to the general trust imposed thereon, the subordinate body is exercising a stewardship. The transfer of the legal title, as directed in the by-laws, to which all members of the order necessarily subscribed, merely involves a change of trustee without disturbing the rights of the individual members. These members having no severable rights in the fund, but only a right to its employment for the payment of sick and funeral benefits, suffer no legal injury in such a transfer. Should the Great Council fail to recognize the vested rights of the individual members, they have at their command adequate legal remedies for the enforcement of the trust.

Conclusions of law.

1. Defendants have no present right to the use of the name or the'ritual of the Improved Order of Red Men.

2. The legal title, at the time of expulsion, to the funds in dispute was in the defendant corporation.

3. The funds referred to in the preceding paragraph are charged with a trust for the payment of sick and funeral benefits to the individual members of the defendant corporation.

4. The provisions of section 5, article xxrv, of the by-laws of the parent body are valid in so far as they relate to a transfer of the stewardship of the fund from the subordinate body to the Great Council, but such transfer of title in no way discharges the trust already imposed.

5. A decree must be made restraining defendants from the use of the name or ritual of the Improved Order of Red Men, and ordering the transfer of title to the fund to the plaintiff, subject, however, to the trust imposed thereon.

Hence, we make the following

Decree nisi.

And now, to wit, Dec. 3, 1930, it is hereby ordered, adjudged and decreed that:

1. The defendants be, and they are, restrained and enjoined from in any way making use of the name or ritual of the Improved Order of Red Men.

2. That the defendant corporation deliver to the plaintiff, Great Council of Pennsylvania of the Improved Order of Red Men, the funds in defendant’s possession as of July 2, 1928, to wit, $24,838.65, with income subsequently accrued, defendant to make all conveyances requisite to said transfer.

3. The costs of this proceeding to be paid out of the fund in dispute.

The prothonotary will enter this decree nisi and give notice of the same to the parties or their counsel, and if no exceptions are filed within ten days thereafter, the decree nisi shall be entered as the final decree by the prothonotary.


source: Caselaw Access Project

author: Brown, Jr., J.,

license: Public Domain

text:
    Commonwealth v. Ritch.

      John H. Maurer, Assistant District Attorney, and Harold D. Saylor, Deputy Attorney-General, for Commonwealth.

      Joseph Sloane, for defendant.
    March 26, 1931.
   Brown, Jr., J.,

Defendant, the manager of the State Theatre, Philadelphia, was found guilty by a magistrate of violation of section 2 of the Child Labor Act of May 13, 1915, P. L. 286, in permitting a minor under fourteen years of age to work in and about the theatre, and was fined $10 and costs. Within five days after the imposition of this fine, an appeal was taken to the Court of Quarter Sessions, and subsequently heard de novo.

On or about Oct. 27, 1930, at 4.15 P. M. and 9.10 P. M., Davey Lee, nine years of age and a nonresident of Pennsylvania, was permitted to perform on the stage of the State Theatre, Philadelphia, of which defendant was manager, and there exhibit his dramatic and theatrical talents of singing and talking, for compensation, before audiences, which performances were advertised in the public newspapers of Philadelphia by defendant or the Stanley Company, owner of the theatre.

Section 2 of the Act of 1915 provides: “No minor under fourteen years of age shall be employed or permitted to work in, about, or in connection with, any establishment or in any occupation.” “Establishment” is defined, in section 1, as “any place within this Commonwealth where work is done for compensation of any kind, to whomever payable,” excepting “children employed on the farm or in domestic service in private homes.”

The question is “what the legislature intended by the use of these words. In seeking for this legislative intent we must give to the language of the statute its common and ordinary signification:” Pennsylvania & Delaware R. R. Co. v. Leuffer, 84 Pa. 168, 171. That quoted is broad and comprehensive. “Work,” as a noun, is the “exertion of strength or faculties for an accomplishment of something; physical or intellectual effort directed to an end; toil; labor; as the work of a teamster, or a doctor; also, that which requires or has required such exertion or effort; employment; occupation; as, to be out of work;” and as a verb, it is “to exert one’s self physically or mentally for a purpose, esp., in common speech, to exert one’s self thus in doing something undertaken chiefly for gain, for improvement in one’s material, intellectual or physical condition, or under compulsion of any kind, as distinguished from something undertaken primarily for pleasure, sport, or immediate gratification, or as merely incidental to other activities: . . .” Webster’s New International Dictionary, 1928, pages 2349 and 2350. “Occupation” is there defined (page 1487) as “vocation; employment; calling; trade,” and its synonyms are “business; profession; trade.” Performing on the stage and exhibiting dramatic and theatrical talents of singing and talking for compensation come clearly within these definitions. They are “physical and intellectual efforts” directed to the end of entertainment, and undertaken for gain.

The phraseology of the Act of 1915 differs from that of the resolution of general assembly of Jan. 21, 1843, and its supplement of April 4, 1862, which in effect gave a lien to “contractors, laborers and workmen” upon railroads and other works and property of public companies for the debts and liabilities accruing to them in the construction and repair of such roads and works, and which, in Pennsylvania & Delaware R. R. Co. v. Leuffer, supra, was held not to include “civil engineers, the value of whose services rests rather in their scientific than in their physical ability.” Clearly, the legislation there construed was intended to embrace those engaged in manual toil, “not in head, but in hand work, and who depend upon such hand work for their living,” whereas, in section 2 of the Act of 1915, the word “labor,” which “commonly implies more strenuous exertion than work” (Webster’s Dictionary, supra), does not appear. If the two had been coupled together, a different result might be reached, but “work” by itself is more general, and used with “in any occupation” is all-inclusive.

The purpose of the act is “to provide for the health, safety and welfare of minors,” and to that end it prescribes different conditions for the employment of minors of different ages. Thus, it is lawful for minors between fourteen and sixteen years of age to be employed, except in the operation of certain dangerous machines enumerated in section 5, providing they attend an approved school not less than eight hours each week (section 3), and that they work no more than fifty-one hours a week and no more than nine hours a day (section 4). Minors between sixteen and eighteen years of age may be employed without attending school and with no daily or weekly limit of the number of their hours of work, except in certain employments prohibited in sections 5 and 6. However, the legislature evidenced its intent that there should be no exceptions in cases of minors under fourteen. Section 2 contains no limitation of the number of hours during which such minors may be employed nor of the kind of work which they may do. It inhibits their employment. They shall not “be employed or permitted to work in, about, or in connection with, any establishment or in any occupation.”

It has been argued on behalf of the defendant that because children between fourteen and sixteen years of age have to have employment certificates which are issued only by public school officials to “children residing within their respective districts,” the act is not intended to apply to nonresidents. However, it was within the power of the legislature to forbid all employment of minors under sixteen years, but instead of so doing it imposed certain conditions upon their employment, and prohibited them from the operation of dangerous machines. On the other hand, no such limitations were prescribed for children under fourteen years of age. Their employment at all was prohibited by section 2. There is no distinction there made between minors who are residents in Pennsylvania and those who live without its borders, so that the application of section 2 of article iv of the Constitution of the United States does not arise.

Defendant is adjudged guilty of the violation of the provisions of section 2 of the Act of May 13, 1915, P. L. 286, and is sentenced to pay a fine of $10 and the costs of prosecution, and in default of the payment thereof to undergo an imprisonment of ten days in the Philadelphia County Prison.


author: Alessandroni, J.,

text:
    Liberal Finance Company v. Lempert et al.

      S. F. Pepper, for plaintiff; Altshuler & Stein, for claimant.
    Dec. 24, 1930.
   Alessandroni, J.,

Judgment was obtained against Hyman Lempert, upon which execution was issued. The sheriff levied against certain property, and the defendant’s wife, Bertha Lempert, filed a property claim. The sheriff’s rule for interpleader was made absolute and Bertha Lempert filed a petition for leave to file her own bond. The petition avers that Bertha Lempert is in possession of the property levied upon and derived title to it by purchase from her own funds and that she did not derive title to those goods through her husband, Hyman Lempert, nor has he any interest therein. No answer was filed to the petition, and it appearing clearly from the pleadings that the petitioner was in possession of the goods which had been purchased with her own funds, she is entitled, by virtue of the Act of May 26, 1897, P. L. 95, to file her own bond: Blumenthal v. Rosenblatt, 5 D. & C. 763; Hochman v. Carroll, 19 Dist. R. 243.

And now, to wit, Dec. 24, 1930, claimant’s rule for’leave to file her own bond is made absolute.


author: Sinkler, J.,

text:
    McLaughlin's Estate.

      Todd Daniel and Earl F. Reed, for exceptants.

      Frederick J. Knaus and Marcellas H. McLaughlin, contra.
    Dec. 19, 1930.
   Sinkler, J.,

While the exceptions filed to the adjudication of the Auditing Judge are grouped by counsel under four headings, the court in Bowie having decided to dismiss the exceptions, they may be grouped for the purposes of this opinion under two headings — first, does the trust continue during the lifetime of the testator’s four children, and, second, did the Auditing Judge err in awarding to the testator’s two surviving children the share of income formerly enjoyed by a grandchild who has died without issue.

The adjudication of the Auditing Judge is comprehensive and quite complete. In our opinion, the principles set forth in the decision of the Supreme Court in Whitman’s Estate, 248 Pa. 285, which is among the cases relied upon by the Auditing Judge, are applicable to the present case. In the will which is before us there is no intent to work out a scheme to circumvent the rule against perpetuities, and the purpose of the testator to create life estates for his four children should not be evaded. We are of the opinion that the Auditing Judge did not err in holding that the equitable life estates are valid so long as any one of the testator’s four children survive.

Equally clear in our judgment is his determination awarding the income of the grandchild who died without issue. Lydia H. Partenheimer was one of the testator’s four children. She died leaving one son, John H. Partenheimer, who died without issue. Judge Gest has found, after considering the principles of law and reported cases, as well as the provisions of the will before us, that the word “issue” extends in the present case to the grandchildren of the testator. The grandson, John Partenheimer, having died without issue, the income is claimed in behalf of his estate, on the theory that he had a vested interest pur autre vie in the income until the termination of the trust. The Auditing Judge finds that his interest ceased with his life, citing Maxwell’s Estate, 261 Pa. 140, and Welsh’s Estate, 28 Dist. R. 909. In this view we also concur. Whether or not the word “issue” as used by the testator would have been sufficient to continue the income beyond the life of John Partenheimer had he left issue is not involved under the present circumstances. He died without issue, and the income, therefore, is payable, as directed by the will, to the two children of the testator who last survived.

The exceptions are dismissed and the adjudication is confirmed absolutely.

Lamorelle, P. J., did not sit.


author: Niles, P. J.,

text:
    Tallman-Anderson Company v. Moore.

      Claude C. Smith, for plaintiff; E. Wallace Chadwick, for defendant.
   Niles, P. J.,

19th judicial district, specially presiding, May 24, 1930. — The function of the judge presiding at a trial such as the one in this proceeding is limited to supervision of orderly procedure, admission of evidence, and pertinent instructions to the jury in order that they may intelligently answer the question submitted by the chancellor. After the question has been answered by the verdict, review may be had by the trial judge as to his rulings. If he is convinced of error, he very properly may grant a new trial. His duties do not require or allow him to grant a new trial because the verdict, in his opinion, is contrary to the law or the evidence. These are questions to be determined by the chancellor, who has invoked the aid of the jury for the information of his conscience. Unless the trial judge is convinced that he has misguided the jury, his only duty is to certify the verdict, with the whole trial record, for further action by the chancellor. The entry of judgment by him on the verdict or against the verdict is not required nor allowable. No appeal could be taken from such judgment. The only possible review is by the chancellor in considering what weight he should give the verdict, as an element in his decree, and review by the appellate court of the final decree. Such practice seems logical and sustained by authority. The subject is considered in a careful opinion by the learned Judge Endlich, of Berks County, in Kelly v. Herb & Greenoff, 3 Dist. R. 284, the substance of which is: The purpose of an issue from the court of equity to the common pleas is to inform the conscience of the chancellor by means of the verdict of the jury as to the existence or non-existence of certain facts; their finding being, however, only advisory and never binding upon him. The proceeding on the law side is simply ancillary to that pending in the equity side. It is in the latter that any final decree must be made, and a determination of the issue in the law side is not conclusive as to what that decree shall be; hence, there is no power in the common law court to enter judgment even upon a verdict of a jury trying the issue. The trial judge can do no more than certify to the chancellor said fact finding and the evidence upon which it is based: Saylor’s Appeal, 39 Pa. 495. When the correct course of practice is observed, there is nothing to which a writ of error can be taken, because no judgment can be properly rendered. The trial judge can give no judgment on the verdict of the jury. He can only certify the record of the finding to the chancery court: Baker v. Williamson, 2 Pa. 116.

May 24, 1930,

The cases referred to by counsel for plaintiffs relating to the practice regarding will contests and other issues in Orphans’ Court proceedings do not seem to be pertinent nor change the practice applicable to this case.

After the advantage of thorough argument by the learned counsel concerned and careful examination of the record of the trial, the judge presiding at the trial is not convinced of any material error therein.

Although the trial judge does not approve of the verdict and, were the case on other footing, might feel bound to grant a new trial or enter judgment n. o. v., in this proceeding he is absolved from deciding the questions therein involved.

In accordance with what is conceived to be the proper practice as indicated above, plaintiff’s motion for new trial will be refused, and plaintiff’s motion for judgment n. o. v. will also be refused because no judgment upon this verdict by the judge presiding at the trial is required.

And now, to wit, plaintiff’s motion for new trial is refused and the rule granted thereon is discharged, and plaintiff’s motion for judgment non obstante veredicto is refused and the rule granted thereon is discharged, and the verdict of the jury and the whole record, including the stenographer’s notes of testimony, is certified to the chancellor who directed the issue from the Court of Common Pleas sitting in equity.

An exception is granted to all parties on the court’s action in this regard.

Prom William R. Toal, Media, Pa.


author: Campbell, P. J.,

text:
    Copley v. Stewart, Secretary of Highways, et al.

      Harry C. Golden, for plaintiff.

      Harry A. Heilman and Ward McCullough, for defendants.
   Campbell, P. J.,

50th judicial district, specially presiding, July 28, 1930.— W. N. R. Copley, the plaintiff, being the owner of a tract of land situated in the Borough of Manorville, Armstrong County, Pennsylvania, leased a portion thereof to the Department of Highways of this Commonwealth (hereinafter called “Department”) for storage purposes, with the right to erect thereon a storage shed. At the expiration of the term, the defendants, acting for the Department, proceeded to remove the storage building, which had been erected under the terms of the lease, to prevent which action a preliminary injunction was issued on the hill of plaintiff. Upon hearing to continue the injunction the parties agreed that the proceedings should be treated as on final hearing.

From the evidence then taken the court makes the following

Findings of fact.

1. The plaintiff is the owner of a tract of ground situate in the Borough of Manorville, County of Armstrong and State of Pennsylvania, as described in paragraph 1 of the plaintiff’s bill.

2. On July 25, 1924, W. N. R. Copley entered into an article of agreement with P. D. Wright, Secretary of Highways, said agreement being as follows:

“Whereas, It is necessary in order to expedite and more efficiently carry out the work of the Dept, of Highways to obtain a permit from William Copley of Manorville, Pa., Armstrong County, to use or occupy a portion of his land about 126 feet by 140 feet adjacent to St. 203 Station 105, road which the Dept, of Highways is about to improve or maintain for the purposes of placing and using thereon Storage shed.

“Now this agreement witnesseth, That William Copley of Manorville, for and in consideration of the sum of $25.00 per month to him in hand paid, do hereby grant the use of said land by the said Dept, of Highways for the purpose above mentioned for the term of 60 months from the 1st of August, 1924, to the 1st of August, 1929, during which time or period this permit is irrevocable. Upon the expiration of the said term of this permit or upon the sooner surrender thereof by the Department of Highways, said Department shall restore any fences that have been removed or destroyed and remove from the surface immediately surrounding all débris or rubbish occasioned through the use of said land by said Department.

“It is hereby understood and agreed that if the Department ofe Highways surrender possession of the premises covered by this lease before the expiration of-the full term of said lease, the Department shall pay only a proportionate part of the rental for said term.

“Witness our hand and seal this 2nd day of July, A. D. 1924.

“Witness: Lester Bishop W. N. R. Copley (Seal)

“This permit accepted by the Department of Highways, this 25th day of July, A. D. 1924

“Approved: By

A. B. Cole P. D. Wright

Superintendent Secretary of Highways

“Approved:

H. B. Moffin, District Engineer

“(a) The lessor to pay all taxes to be assessed on said premises during said term except the water tax.

“(b) It is further understood and hereby agreed that the Dept, of Highways shall have the privilege at its option of renewing this lease for a similar period, upon its expiration. In case the said Dept, of Highways decides within the next few years, beginning-, to purchase the above described plot of ground, which shall not exceed $3500.00 dollars.”

3. Upon the expiration of said agreement, to wit, Aug. 1, 1929, the plaintiff verbally extended its term for the period of one year, and the actions complained of in this bill occurred within said year.

4. In pursuance of said agreement the Commonwealth entered upon said land and erected a one-story corrugated iron building, 40 by 96 feet. The foundation walls were built of concrete with from 2i to 4 feet below and from 3 to 6 feet above the surface of the ground; the width of the end walls was 3 feet at the bottom and 2 feet at the top, while the side walls were 10 inches at the top. Prior to the hardening of the concrete, some thirty-six bolts, from 12 to 15 inches long, were inserted therein, leaving some 2i or 3 inches exposed, upon which anchor plates with holes in were set. After the concrete hardened, steel uprights were set upon the anchor plates with the bolts fastened through eyes in the uprights, made secure with nuts, and a grout, made of sand and concrete without gravel, was poured around the bolts, nuts and plates in order to improve the appearance, aid drainage and prevent rust. Along the concrete side walls, while soft, wooden pegs were driven and later, in the holes thus formed, small plates were inserted, to which the steel sheeting of the building was fastened by bolts. This sheeting came in strips 3 feet wide, locked together before erection by caps or clips which slip over the outside, the top being fastened by clips. Upon the upright columns trusses were fastened with bolts, the truss braces being riveted together at the factory. The roof is in sheets fastened together with caps and to the trusses with special clips and bolted at the edge.

The building was ceiled with Celotex fastened to 2 by 4’s bolted to the girders of the trusses. Inside was a tool house and a fully equipped office, all being fastened to 2 by 4’s resting on the concrete floor. The building contained a lavatory with sewer and water connections, and the whole was lighted by electricity and contained a heating system, all installed by the Department.

5. The superstructure of this building was a portable steel structure, one of many acquired by the Department, made in accordance with form specifications, designed and purchased for the purpose of erecting on leased land, and thereafter from time to time to be dissembled, moved and reassembled upon other locations.

6. The said superstructure was so designed and erected as to permit of dissembling, moving and reassembling in other locations without the destruction of any essential units.

7. The superstructure of the building may be removed without injury to it or the foundation by loosening nuts and bolts with a wrench or chisel, removal of roof and sides in sections, the braces between the trusses, then the trusses and uprights. The superstructure then would be in the condition in which it was prior to erection, ready for re-erection. The grouting having been removed, the foundation and floor, with sewer, water and gas connections, would be in the same condition as before erection of superstructure.

8. The building in question was designed, erected and used by the Department for the purpose of doing the work or business of the Commonwealth entrusted to it by statute, to wit, the construction, repair and maintenance of the Commonwealth’s highways, and for the very purpose for which the lease was made, and is, therefore, a trade fixture.

9. The intention of the parties to this lease, at the time of its execution and at the time of the erection of the building, was that it was not to become a part of the freehold, but was to be removed at the termination of the lease.

10. The defendant James Lyall Stewart is the Secretary of Highways of the Commonwealth of Pennsylvania, and the defendant W. K. Myers is the superintendent of that district of said Department, which includes the County of Armstrong.

11. At the time of the filing of this bill, the defendants, acting as officers and employees of the Commonwealth, either personally or through others under their supervision and direction, were engaged in removing the superstructure of said building off the land of plaintiff, intending to continue until completely removed.

12. If the said building has become a part of the real estate, it cannot be removed without irreparable damage to the plaintiff.

Discussion.

The Department of Highways of the Commonwealth leased from the plaintiff land in the Borough of Manorville, Armstrong County, for the purpose of erecting a storage shed for the care of the Department’s property used in the construction and maintenance of roads, upon which land it erected a portable steel building upon a permanent concrete foundation, the superstructure being fastened to the foundation by bolts and nuts, the bolts being imbedded in the concrete. The inside of the building was finished, having sewer, water and gas connections and a well furnished office, the whole being used in the road work of the Department. Before the expiration of the term of the lease as continued by agreement, the Department, through the defendants and others as its agents, proceeded to remove the superstructure by loosening the bolts and nuts and some grouting that had been placed over the exposed portions of these bolts, and to take down, section by section, the superstructure and remove it, for erection elsewhere. The plaintiff, contending that the building had become a part of his real estate and there being no provision in the lease with reference to its removal, filed a bill to enjoin the defendants from taking apart or removing the building.

1. The defendants contend that the court has no jurisdiction to enjoin their contemplated action, because it constitutes the exercise of a discretionary authority rather than a ministerial duty, arguing that the matter of the erection of the building, the manner of its use and the movement of it to another location is within the discretion of the Secretary of Highways. We think that if the defendants are clothed with authority to do these things, they constitute discretionary rather than ministerial duties, and if they have such authority and the duties are discretionary, then they cannot be enjoined from their performance. If they are ministerial, then, in a proper case, their performance may be enforced by mandamus or enjoined by injunction. Upon this subject the law is clearly defined. “It is objected that the Governor is not subject to this form of our jurisdiction. It is far from our intention to claim the power to control him in any matter resting in executive discretion. But the rule of law seems to be that when the legislature proceeds to impose on an officer duties which are purely ministerial, he may be coerced by mandamus or restrained by injunction:” Mott et al. v. Pennsylvania R. R. Co., 30 Pa. 9, 33. “While it is against Meehan in his official capacity as Fish Commissioner, it is not to enjoin him from discharging any official duty imposed upon him by statute, but it is to prevent his performing what is to be regarded as a mere ministerial duty under the general powers and discretion conferred upon him, and if in so doing he defies a covenant between the state and the appellee, he cannot shield himself under the plea that the state is being sued:” Isett v. Meehan, 232 Pa. 504, 507. “The general rule is that the courts cannot interpose by injunction or mandamus to limit or direct the discretion and action of departmental officers in respect of pending matters within their jurisdiction and control:” Black v. Woodward, 1 D. & C. 205, 210. See, also, Haverford School v. Department of Highways, 8 D. & C. 305, 310.

However, if the action complained of, although it involve discretion on the part of the defendants who are also officers of the Commonwealth, is in violation of the law which created their authority (Cope et al. v. Hastings, 183 Pa. 300, 323), or is without the duties imposed by statute upon the Department (Haverford School v. Department of Highways, supra), or is in defiance of a covenant of the state (Isett v. Meehan, supra), it may be enjoined. If the action complained of constitutes an illegal act, such as a trespass on another’s land, or the seizing of another’s personal property without statutory authority, the persons performing such acts cannot shield themselves under the plea that the Commonwealth is the real defendant. In the ease of Lenhart v. Wright, Secretary of Highways, 286 Pa. 351, a preliminary injunction was awarded against the defendant, prohibiting the tearing down of a stone wall which the plaintiff alleged was on his private property and which the defendant alleged was an encroachment on the public highway. The main question involved was the location of the property line. Until that was determined the question of authority in the Secretary of Highways to remove the wall, the case not involving a relocation of the highway, could not be determined. It was determined that the wall was outside the property line, and, therefore, the Secretary had authority and the duty was discretionary, and the bill was dismissed. If it had been determined that the wall was inside the property line, the Secretary would have had no authority to remove it and the preliminary injunction would have been made permanent. So, here, the underlying question is the status of this building — whether, under the law, it is the property of the plaintiff, subject to its occupation by the Department, or the property of the Department with the right to remove. If the building is the property of the plaintiff, then the defendants have shown no authority in the Department to remove it, and the preliminary injunction must be made permanent. If the property is that of the Department, with the right to remove, then, such action being discretionary, the injunction must be dissolved and the bill dismissed. In the case of Meigs’s Appeal, 62 Pa. 28, the United States Government had, during the Civil War, erected a building to be used as a barracks for the soldiers, which later was used as a war-time hospital. It was erected on a commons for which the borough was trustee, and at the expiration of the war the borough attempted to enjoin the government officials from its removal on the ground that it had become a part of the realty. There was no contract and the bill was dismissed. The Supreme Court says (page 33): "These structures being put up by the United States for military purposes and built of their own materials, the title to the materials must have been lost to the United States and vested in the plaintiffs before an injunction would be issued to restrain their removal.”

2. What is the status of this building? The plaintiff contends it is a part of the freehold, both because it is permanently fastened to a foundation laid in the ground and because the parties did not intend its removal, and, therefore, it is not removable, there being no specific provision in the lease for its removal. The defendant contends (a) that it is not a part of the real estate, being a portable building not permanently fastened to the land; that it was designed, constructed and erected with the intention to remove it at the expiration of the lease and that such intent was known to and acquiesced in by plaintiff; (b) that it is a trade fixture; and (o) that, at the time of its erection, it was personal property of the Commonwealth, and, therefore, could' not legally be disposed of by the Secretary of Highways, and that plaintiff was bound by a knowledge of the law with reference to the disposal of personal property of the Commonwealth, and that for any one or all of these reasons the Secretary of Highways has a right to remove the structure.

(a) “The old common-law criterion of physical attachment was exploded in this state ... in Voorhis v. Freeman, 2 W. & S. 116” (page 274).: "Unquestionably the intention to annex ... is the true legal criterion” (page 273): Hill v. Sewald, 53 Pa. 271. The question of whether or not a fixture erected by a tenant has become a part of the freehold depends upon whether or not at the time of the erection the tenant intended to remove it during the term; the manner of its annexation to the land is no longer the governing test: Seeger v. Pettit, 77 Pa. 437; Carver v. Gough, 153 Pa. 225; Albert v. Uhrich, 180 Pa. 283. The intention is that “expressly declared by the parties ... 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, 308. To the same effect is Silliman v. Whitmer, 11 Pa. Superior Ct. 243, 257, to which is added: “The question of fixture or not depends on the nature and character of the act by which the structure is put in place, the policy of the law connected with its purpose, and the intentions of those concerned in the act” (citing Meigs’s Appeal, 62 Pa. 28; Hill v. Sewald, supra). See, also, McKim v. Burke, 57 Pa. Superior Ct. 530, 534, where it is stated: “The intention of the parties, as derived from the lease, and the circumstances surrounding the transaction, determine the question.” See, also, Waltman v. Mayer, 97 Pa. Superior Ct. 236.

The lease from the plaintiff, Copley, to the Department does not in express terms provide either for the removal of the building or for its retention upon the land at the expiration or during or after the term. In such case, the general rules of law above stated are intended to define this intention of the parties which has been left undefined by their contract: Coleman v. Lewis, 27 Pa. 291-292. The lease sets forth, inter alia: “Whereas, it is necessary in order to expedite and more efficiently carry out the work of the Department of Highways to obtain a permit from William Copley ... to use or occupy a portion of his land [description of land] adjacent to . . . road which the Department of Highways is about to improve or maintain for the purpose of placing and using thereon Storage shed: Now this agreement witnesseth that William Copley ... do hereby permit the use of said land by the said Department of Highways for the purpose above mentioned . . . [term]. . . . Upon the expiration of the said term of this permit or upon the sooner surrender thereof . . . said Department shall restore any fences that have been removed or destroyed and remove from the surface immediately surrounding all debris or rubbish occasioned through the use of said land by said Department.” A rider is attached granting to the Department the option of renewing the lease and of purchasing the land at a price not to exceed $3500.

There is no doubt but that the intention of the Department was to procure and erect on this land a building that could be dissembled, removed and reassembled elsewhere, within the discretion of the'Secretary. It was one of forty-five similar buildings manufactured upon specifications prepared by the Department, purchased and erected by it on leased land at the approximate time the building was erected on plaintiff’s land. Section 3 of those specifications provided that they were “intended to cover a standard type of sectional steel structure ... so designed and erected as to permit of dissembling, moving and reassembling in other locations without the destruction of any essential units.” They were erected upon leased land because the Department at that time had no authority to purchase land. The testimony of the engineers of the Department and the action of the Department in the removal and reconstruction of other similar buildings shows the intention of the Department that the building in question was not to become part of the realty, but was to be removed before the expiration of the lease. The secret intention of one of the parties, however, is not the test: National Bank of Catasauqua v. North, supra,.

There is not much direct evidence of the intention of the plaintiff at the time of the execution of the lease or during the construction of the building, but what there is indicates that his idea of requiring the building to be left in place arose at the end of the term. He observed the type of building, that it came in sections and the manner of its erection. He talked to a representative of the Department, at the time of the extension of the lease, about leaving the foundation, about erecting thereon a tile building, about the purchase of the building, and did not say that he claimed it.

The nature and character of this transaction is fully set forth in the lease and every step was well known to plaintiff. All the circumstances surrounding the transaction and the purpose to be served by the building indícate a temporary use of the building in connection with roads then under construction or in reference to the then existing arrangement of maintenance districts with the purpose of its removal to another location as the exigencies of the Department’s business required. There is nothing to indicate that the severance of this building from the land would visibly affect the proper and obvious use of the land. The use of this land prior to this lease does not appear in the evidence. It was not, therefore, used for any purpose similar to the use for which this building was erected. There is no evidence that any building stood upon the land; there is no evidence that the severance of the building would reduce the value or affect the use of the land as it stood at the date of this lease, and it is established by the testimony that the building can be removed and the foundation taken out, the land leveled and be in as good or better condition than it was in before, available to the same extent for all the uses for which it was formerly available. The provision of the lease that fences would be restored and all débris and rubbish removed from the premises indicates the intention of the parties to leave the premises at the end of the term in the same condition in which they were when the lease was executed. The plaintiff points to the option to purchase the land, as contained in the lease, as indicating an intention to leave the building on the premises, citing Carver v. Gough, supra. In that case it was a farm lease, and the buildings in dispute were connected -with the farm buildings, including a house to cure tobacco, it being a tobacco producing farm, and it was stated that the tenant expected to purchase the land or stay on it during his lifetime, and that he had so testified. The case, however, was decided upon a covenant of the lease. In McClintock & Irvine Co. v. Ætna Explosives Co., 260 Pa. 191, the fact of an option to purchase for a stated sum did not affect the right of the tenant to remove fixtures. “When the relation of landlord and tenant exists, there is an improbability that the latter will intend, in excess of his contract obligations, to benefit the landlord by increasing the value of the premises to his own detriment. Hence, when an improvement or addition is made which is physically removable without destroying the substantial identity of state of the premises after its removal with their state before the making of the improvement or addition, the presumption is that the tenant, in making it, intended to remain its owner:” Trickett on Landlord and Tenant, 2nd ed., page 531.

In Silliman v. Whitmer, supra, one of the elements to determine the intent of the parties is stated to be “the policy of the law connected with its [the building’s] purpose, citing Meigs’s Appeal, 62 Pa. 28. In Young v. Oviatt, 35 Pa. Superior Ct. 603, 608, the court dismissed a bill by the reversioner to enjoin a railroad company from removing a railroad station erected by it on land conveyed for that specific purpose, affirming the principle that a permanent erection made for a public purpose does not become a part of the realty, adding: “Here was a grant for a specific purpose. . . . The erection made by it [grantee] was for the very purpose for which the conveyance was made and under the terms of the grant. When the use and occupation for which it Was intended was ended, the reversion was of the estate conveyed and not of the improvements which had been made thereon.” In Meigs's Appeal, supra, the Supreme Court, in dismissing the bill to enjoin government officers from removing from the York common barracks erected by the Government, says (page 33): “[All the acts of the Government show that the buildings were to be] mere temporary structures, to be used during the continuance of the war or so long as the necessities of the Government made this location convenient for military purposes,” and that the Government “intended no annexation to the freehold;” and that the nature and character of the structures showed they were not improvements made for a use connected with the soil, neither intended to give value to it nor to receive value from it. (Page 34) “Their purpose was not different from that of the tents spread for the accommodation of the army or its board huts used for winter quarters, the only real difference being that these structures were intended for greater comfort and a longer occupancy of the location.” And, again: “There was no intent to improve the ground or to make it accessory to some business or employment. . . . The United States intended no dedication of the materials to the borough and the borough expected none.” The same argument may be used with reference to the building in this case, and we think the plaintiff in dealing with the Commonwealth was bound to know these facts and the further fact that the Department’s representatives had no authority to dispose of the Commonwealth’s property in this way, as is more fully shown under subdivision (a), hereinafter considered. Also, the plaintiff, at the time he executed the lease, was bound to know the policy of the law with reference to public buildings as laid down in these two last cited cases. From these facts there is imputed to the plaintiff an intent that the buildings were not to become a part of the realty and not to remain at the end of the term.

(b) The same rule of intent applies to trade fixtures, that is, buildings erected in furtherance of the trade or business of the tenant, with this difference — that with respect to trade fixtures there is an implied intent of the parties, or presumption in favor of trade, that the buildings are to be removed before the end of the term and it is only on leaving without removal that the intention to make a gift of them to the landlord is imputed: Hill v. Sewald, 53 Pa. 271, 274; Watts v. Lehman, 107 Pa. 106, 110; Albert v. Uhrich, 180 Pa. 283, 285; McKim v. Burke, 57 Pa. Superior Ct. 530, 534; Donnelly v. Prick & Lindsay Co., 207 Pa. 597, 600; Radey v. McCurdy, 209 Pa. 306, 310; McClintock & Irvine Co. v. Ætna Explosives Co., 260 Pa. 191.

This presumption applies to an extension of the term or to a renewal of the lease: Donnelly v. Frick & Lindsay Co., supra; Radey v. McCurdy, supra.

The size and relative permanency of the fixture is immaterial, the rule having been applied to substantial buildings; to government barracks in Meigs’s Appeal, supra; to a substantial steel building, 52 by 180 feet, laid on concrete foundation with a cast iron floor: McClintock & Irvine Co. v. Ætna Explosives Co., supra, page 194, where it is said that lessor was fully informed of lessee’s intention to use the premises for manufacturing purposes, which use required the installation of furnaces which were installed in the building; to a derrick upon an oil lease and the casing installed in the oil well: Robinson v. Harrison, 237 Pa. 613, it being implied that the fixtures were placed on the leasehold to enable the lessee to use and enjoy them during the term and then remove them; to a granary resting on staddles built into the land and to cotton spinning machinery fastened by screws sunk into holes in the stone flooring secured by molten lead poured into them: Wiltshear v. Cottrell, 72 Eng. C. L. Rep. 674, and Hellawell v. Eastwood, 6 Exch. Rep. 295, as cited in Gulick v. Heermans, 6 Luzerne Legal Reg. 227, 230; to a railroad station in Young v. Oviatt, supra; to a stationary steam saw-mill permanently attached to the land for the purpose of the tenant’s trade: Kile v. Giebner, 114 Pa. 381, 386; to a frame building erected by lessee and connected with a mill theretofore on the land, the frame building having been erected for the purpose of trade: Thropp’s Appeal, 70 Pa. 395; to an engine house built of stone and wood, with a stone foundation: White’s Appeal, 10 Pa. 252; to a wooden dwelling house with a cellar of stone or brick foundation and a brick chimney, erected by the tenant with a view of carrying on the business of a dairyman and for the residence of his family: Van Ness v. Pacard, 2 Peters, 137, 7 U. S. (L. ed.) 374, in which Justice Story says the question of whether fixtures erected for the purposes of trade are or are not removable does not depend on the form or size of the building to be removed, whether it has a brick foundation or not, or is one or two stories high, or has a brick or other chimney, the sole question being whether it is designed for the purposes of trade.

Applying these rules to the present case, we find that the building in question was erected by the tenant for the purposes of trade (of which lessor had knowledge); that the presumption of intention to remove before the expiration of the term applies and is not overcome by any countervailing proof, but such intention is affirmatively shown by the evidence; that the attempted removal was within the term of the lease and, therefore, the defendants had authority to remove same, and in attempting to do so were acting within their rights.

(c) Public policy forbids the disposal of public property, except under statutory authority, by the person, department or other instrumentality and under the terms and conditions therein specified. At the date of the execution of the lease between the plaintiff and the Department the manner of the disposal of such property was governed by article v, section 508, and article xxi, section 2103 (i) of the Administrative Code of 1923, P. L. 498, 535, 616, section 508 of which made it the duty of each department, board or commission in whose possession should be personal property no longer of service to the Commonwealth to deliver the same to the Department of Property and Supplies, except as to certain perishable property; and-section 2103 (i) of which provided for the sale of the same, after advertisement, by the Department of Property and Supplies. This was a reenactment of legislation placing such authority in the old Board of Public Grounds and Buildings and was not affected by the amendment of April 13, 1927, P. L. 207, 263. The Administrative Code of 1929, P. L. 177, reenacts section 2103 (i), as amended by the Act of 1927, as section 2405, without change, and reenacts section 508 of the former Code as sections 510 and 511, adding a definition of unserviceable property and authorizing other departments, boards and commissions to sell certain personal property. No other statutory authority governing this question has been called to our attention and we are unable to find any. If this building is unserviceable property it must be disposed of by the Department of Property and Supplies in the manner above stated; if serviceable, there is no way in which it may be disposed of. The plaintiff is bound by a knowledge of these provisions of the law. They must be treated as written into the lease, and when so done, establish the intent of both parties to the lease that the title in the Commonwealth to this personal property should not pass from it. Had the parties stipulated in their lease that, at its termination, this building should become a part of the freehold, or "so intended without stipulation, these provisions of the statute would have effectively prohibited such a result.

ConclusioTts of law.

1. The question-of whether or not a fixture erected by a tenant upon leased land constitutes a part of the freehold depends upon whether or not, at the time of the erection, the parties intended its removal during the term. The intention to annex is the true legal criterion.

2. The secret intention of one of the parties is not the test.

3. The manner of its annexation to the land is not the governing test.

4. The intention which controls is that expressly declared by the parties, or which flows from the nature and character of the act, the clear purpose to be served, the manifest relation which the articles bear to the realty, the visible consequences of their severance upon the proper and obvious use of it, and the policy of the law connected with its purpose.

5. The policy of the law is that a permanent erection made for a public purpose does not become a part of the realty, and the parties to this lease were bound to know that rule of law and are presumed to have contracted accordingly and to have intended its incorporation in their lease.

6. With respect to fixtures erected by a tenant for the purpose of business or trade, in the absence of an express contract relating to their removal, there is an implied intent of the parties to the lease, or a presumption in favor of trade, that such fixtures are to be removed before the end of the term and that it is only on leaving without removal that the intention to make a gift of them to the landlord is imputed.

7. Nothing short of the clearest expression of an agreement, by the parties to that effect can justify the extension of the grasp of the landlord so as to cover chattels or personal property brought upon the premises by the tenant in pursuance of the business for which the premises were leased. In this case there is no evidence of an express contract between the parties with reference to the removal of the building in question.

8. The building in controversy was erected by the Commonwealth through the Department of Highways out of, materials owned by the Commonwealth.

9. The only statutory authority whereby personal property of the Commonwealth, including the building in controversy, can now be disposed of, or could have been during the term of this lease, provides for the sale thereof by the Department of Property and Supplies after advertisement as provided for in sections 508 and 2103 (i) of the Administrative Code of 1923, P. L. 498, and in sections 510, 511 and 2405 of the Administrative Code of 1929, P. L. 177.

10. Neither the defendants nor any one acting for the Department of Highways of the Commonwealth had authority at any time during the term of the lease in question to sell, give away or otherwise dispose of or enter into a contract for the disposition of personal property of the Commonwealth, including the building in question, and the plaintiff is visited with knowledge of such want of authority.

11. Such contract if entered into would be illegal and void and unenforceable.

12. The building in question was not at any time a part of the freehold upon which it was erected.

July 28, 1930,

13. The acts of the defendants in removing the building were undertaken as representatives of the Department of Highways of the Commonwealth and were discretionary within the powers conferred upon them.

14. Therefore, the acts of the defendants complained of cannot be enjoined.

Decree.

And now, upon consideration of the foregoing case, it is ordered, adjudged and decreed as follows: The preliminary injunction heretofore granted is dissolved and the bill in equity is dismissed, at the cost of plaintiff.


author: Atlee, J.,

text:
    Steinman Hardware Co., Inc., etc., v. Musketnuss et al.

      H. Clay Burkholder and F. Lyman Windolph, for plaintiff.
    S'. V. Hosterman, for defendant.
    Jan. 10, 1931.
   Atlee, J.,

1. This is a writ of replevin in which the Stein-man Hardware Company, Inc., a Pennsylvania corporation, trading as Kirk Johnson & Company, Inc., is the plaintiff, and Lillian Musketnuss, Charles A. Musketnuss and W. G. Sweigart, constable, are named as defendants in the writ. Barnet Miller became the intervening defendant on a petition, in which he alleged that, prior to the issuing of the writ of replevin and seizure by the sheriff, the said Barnet Miller had issued a landlord’s warrant against the defendants, Lillian Musketnuss and Charles A. Musketnuss, as Miller’s tenants, at No. 18 Filbert Street, Lancaster, Pa. In this landlord’s warrant, W. G. Sweigart, one of the defendants here, had acted as the bailiff of Barnet Miller.

2. The said Barnet Miller alleges that he had a prior lien and a superior right over the said plaintiffs as to the piano, to recover which the plaintiffs had issued the writ of replevin.

3. In the plaintiffs’ declaration they allege that, on or about Sept. 8, 1928, the plaintiffs sold to the said Lillian Musketnuss and Charles A. Musketnuss one Underwood & Son mahogany piano, serial No. 37,968, upon a written agreement of conditional sale, according to the terms of which agreement the said purchasers of the piano were to pay therefor the sum of $245; that, on Oct. 6, 1928, the said written agreement was entered in the office of the Prothonotary of Lancaster County, in accordance with the provisions of the Uniform Conditional Sales Act of 1925 and its amendments; and, further, that the said purchasers became in default, having paid only $82 on their bill, and thus left an unpaid balance of $163. The plaintiff alleges that, by reason of the default of said purchasers, the immediate right of possession to the piano vested in the plaintiff.

4. The- intervening defendant, Barnet Miller, in his affidavit of defense, alleges that the said written agreement was not entered in -the office of the Prothonotary of Lancaster County in accordance with the provisions of the Uniform Conditional Sales Act of 1925 and its amendments. The defendant avers that the purchasers of the piano were tenants of Miller’s property at No. 18 West Filbert Street, Lancaster, Pa.; that, on Aug. 13, 1930, the tenants owed rent to the said landlord in the sum of $35, and that thereupon, on that date, Miller issued a landlord’s warrant and engaged W. G. Sweigart, constable, to act as his bailiff, and that the said bailiff, on Aug. 13, 1930, levied upon the said piano, one bench and sixty-one piano rolls on the demised premises; that the goods were duly appraised and advertised for sale, which sale was to take place on Aug. 28, 1930, and that, before the said sale was held, the plaintiff herein, on Aug. 28, 1930, issued the writ of replevin.

5. The affidavit of defense raises the question that the contract between the plaintiff and the purchasers of the piano did not create a conditional sale under the provisions of the Uniform Conditional Sales Act of 1925; and further alleges that the plaintiff did not at any time give notice to the landlord, Miller, that the instrument so leased or hired was the property of the plaintiff, and, therefore, exempt from levy or sale on execution or distress for rent, which notice it would have been required to give if the Act of May 13, 1876, P. L. 171, was the only act of assembly of Pennsylvania on the subject.

6. The pleadings in this case, therefore, raise the question as to the right of Miller to hold the piano for rent when the piano is claimed by the plaintiff, who alleges that the agreement created a valid reservation of title in the plaintiff — a reservation of title valid against the lien which the landlord might have upon the piano for rent due the landlord for the demised premises and for rent which accrued subsequent to the filing of the agreement in the prothonotary’s office.

7. It seems that there is no case in Pennsylvania at present available in which the exact point at issue here has been decided. The question, therefore, before us for decision is this: Does the recording of an agreement such as that set forth in the plaintiff’s statement, and under the circumstances here shown, give the plaintiff the right to take the piano from the demised premises free of any lien of the landlord for rent?

8. From the pleadings appear the facts in the order of their happening:

(a) On Sept. 8, 1928, plaintiff sold to the “buyer” the piano, and on this day was signed the agreement on which the plaintiff bases its right to recover.

(b) On Oct. 6, 1928, this written agreement was entered in the prothonotary’s office.

(e) On March 24, 1930, the “buyer” made the last payment that he made, he then paying the sum of $1, which made a total of $82, and left an unpaid balance of $163.

(d) On Aug. 13, 1930, Barnet Miller issued his landlord’s warrant and levied upon the piano in dispute, and, after appraisement, the goods were advertised for a sale to be held on Aug. 28, 1930.

.(e) On Aug. 28, 1930, the plaintiff issued the writ of replevin.

9. So that it appears that the buyer of the piano was in default for almost five months before the plaintiff moved to recover the piano.

10. Also, it appears from the plaintiff’s statement that the plaintiff — although the agreement on which it relies was dated Sept. 8, 1928 — did not record the agreement in the prothonotary’s office until Oct. 6, 1928, namely, twenty-eight days after its execution, although the Uniform Conditional Sales Act of 1925 provides as follows:

“Section 4. Every provision in a conditional sale, reserving property in the seller after possession of the goods is delivered to the buyer, shall be valid as to all persons, except as hereinafter otherwise provided.

“Section 5. Every provision in a conditional sale reserving property in the seller shall be void as to any purchaser from or creditor of the buyer who, without notice of such provision, purchases the goods or acquires by attachment or levy a lien upon them before the contract or a copy thereof shall be filed, as hereinafter provided, unless such contract or copy is so filed within ten days after the making of the conditional sale.

“Section 6. The conditional sale contract or copy shall be filed in the office of the prothonotary in the county in which the goods are first kept for use by. the buyer after the sale. . . .”

11. At this time the court does not decide whether or not plaintiff’s failure to record the agreement within ten days after its execution made the agreement invalid as to claims arising after the date of recording the agreement.

12. The title of the Act of May 13, 1876, is: “To exempt pianos, melodeons and organs leased or hired from levy or sale on execution or distress for rent.” This act provides that the owner of, or the person so leasing, such an instrument shall give notice to the landlord.

13. The Uniform Conditional Sales Act of 1925 is found on page 603 of the Pamphlet Laws for that year, and its title reads: “Concerning conditional sales; and to make uniform the law relating thereto.”

14. Is the title of the Act of 1925 sufficient to give to landlords notice that goods sold under agreements such as this are not liable to distraint for rent? That is a question we may raise at this time. Landlords are not creditors and rents due are not debts in the ordinary legal meaning. Always, under the common law, the landlord has had a right to distrain the goods of a stranger upon the demised premises. If the plaintiff’s contention is correct, the Act of 1925 would confer upon the seller of the piano an immunity not covered by the title of that act, and would deprive the landlord here of- a right of whose taking away no landlord would have had notice from anything appearing in the title of the Act of 1925.

15. If the agreement created a bailment under the circumstances of this case, the plaintiff must lose. If the agreement evidenced a conditional sale, the landlord should have his right to distrain, provided the conclusion herein indicated as to the insufficiency of the title of the Act of 1925 is correct. It is to be borne in mind that this is a dispute between the seller and the landlord asserting a right to distrain. This is not a dispute between the seller and creditors of the buyer.

15. Therefore, the rule to show cause why judgment for want of a sufficient affidavit of defense should not be entered is discharged.

From George Ross Eshleman, Lancaster, Pa.


author: Hargest, P. J.,

text:
    Heller v. Goldsmith.

      Samuel Levin, for plaintiff.

      Samuel Handler and Wiekersham & Wickersham, for defendant.
    June 30, 1930.
   Hargest, P. J.,

The plaintiff filed a prsecipe for judgment by virtue of a supposed authority given in a lease for certain premises in the Borough of Steelton, which lease was dated Sept. 14, 1922, and was for a term of one year, with a privilege of renewal. Execution was issued thereon. On Feb. 27, 1924, petitions were filed, upon which rules were granted; .one to show cause why judgment should not be stricken off, and the other, to show cause why it should not be opened. These rules were duly answered. The case was put on the argument list at the June Term, 1925, and, again, at the October Term, 1928, and continued both times. An attachment execution was issued Feb. 3, 1930, attaching moneys in the hands of certain fire insurance companies, purporting to be due defendant, to which an answer was filed Feb. 21, 1930. On Feb. 6, 1930, á petition was filed to dissolve the attachment execution, and on Feb. 25, 1930, a petition was filed to non pros. the proceedings to open and strike off the judgment. Rules were granted on these last two petitions and answers filed thereto.

Petition for non pros.

From the answer to the petition for non pros., it appears that both parties agreed Feb. 10, 1930, to take depositions for the purpose of disposing of the issues raised by the petition to open judgment. It also appears that the two continuances, when the case appeared upon the argument list, were made by agreement, and that the main cause for delay in disposing of the case was the death of the plaintiff’s attorney, William H. Sponsler.

There is no doubt that a petition to open judgment should be pursued by the taking of depositions promptly after a responsive answer is filed: Ditchfield v. Bernhard, 11 Lehigh Co. L. J. 6. In the case just cited, it was held that a delay of ninety days was laches, and in Boroskie v. Boroskie, 24 Luzerne Legal Reg. 539, it was held that three years’ delay was too long. When inexcusable laches clearly appears, it is the duty of the court to non pros, the proceedings to open a judgment: Biles v. Harper, 1 Pa. C. C. Reps. 666; Weierbach v. Strauss, 20 Northamp. Co. Repr. 322.

The question of granting a non pros., however, on account of laches, is addressed to the discretion of the court: Potter Title and Trust Co. v. Frank, 298 Pa. 137. In the case just cited, it is held:

“Laches does not depend upon the statute of limitations, but, as a general rule, a case should be non prossed unless brought to trial within six years from its inception, but this does not apply where the delay results from other than the plaintiff’s default.

“Defendants in a case are not bound to force the issue; plaintiff is the actor, and it is his duty to bring on the trial. . . .

“Where defendant takes steps looking to a trial, it constitutes a waiver of the laches.”

As to these rules, the defendant is the actor and, therefore, should have moved. The matter was on the argument list in June, 1925, and October, 1928, and continued by agreement. The principal cause for the delay was the death of the attorney for the plaintiff, and the plaintiff, when she could have stood upon her rights to non pros., entered into an agreement to take depositions, and only filed the petition for a non pros, of these proceedings after the defendant had filed a petition for the dissolution of the attachment execution, which she had caused to issue. Moreover, one of these petitions is to non pros, the proceeding to strike off the judgment. Such a proceeding stands upon a footing somewhat different than the proceeding to open the judgment. The proceeding to open involves facts. Witnesses may die or the parties may be otherwise put to a disadvantage by delaying the proceedings to open a judgment which depends upon proper presentation of evidence and findings of fact. The proceeding to strike off a judgment, which must be determined upon the face of the record, is quite different. An examination of the right to non pros, the proceedings to have the judgment opened may disclose the validity or the invalidity of the judgment itself. We think that under all the circumstances we cannot non pros, the proceeding to strike off this judgment, and, therefore, it would be of no avail to non pros, the proceedings to open it.

Rule to strike off the judgment.

The authority contained in the lease filed with the prsecipe upon which this judgment was entered provides:

“The prothonotary or any attorney of any court of record of Pennsylvania is hereby authorized to appear for and confess a judgment against the said party of the second part and in favor of the said party of the first part for the whole amount of said rent as hereinbefore set forth.”

The rent reserved was $540 for the first year, with the privilege of renewal at a monthly rental of $50, and the lease provides that “if the said party of the second part shall continue in possession of the said premises after the expiration of said term, at the option of the said party of the first part, such holding over may be held and deemed a renewal of this agreement for another like term, the same as though a new agreement of leasing, identical with this, had been executed and delivered by the said parties hereto for a succeeding term.” The prsecipe was signed “W. H. Sponsler, Attorney for Plaintiff,” and directed the prothonotary to “enter judgment by virtue of the authority contained in the lease hereto attached and filed herewith . . . for the sum of $450, with interest from the first day of January, 1924, as per the following statement of the amount due, verified by affidavit hereto attached: Total rent from 1st October, 1930, to 30th September, 1924, $600; paid on same, rent for the following months at $50 per month, to wit, October, November and December, $150; balance due as per lease $450.”

It is argued that this judgment was unlawfully entered, because it was entered after the original term had expired, but we do not predicate our decision on that ground.

The authority is to appear for the party of the second part, who was Abe Goldsmith, and confess a judgment against him, but the attorney appeared for the plaintiff.

The authority clearly is to confess a judgment for the whole amount of rent for the term. But the attorney in his prsecipe attempted to liquidate the amount. In Whitney v. Hopkins, 135 Pa. 246, it is held:

“Where the amount due cannot be ascertained from the face of an instrument containing a confession of judgment or a warrant of attorney therefor, the prothonotary cannot enter judgment upon it.”

In Snook v. Tisdell, 24 Dist. R. 1064, judgment was entered for $2082.92 upon a bond in the penal sum of $5000 conditioned for the payment of $2500. The court said:

“The trouble with the judgment is that it rests upon nothing but the mere say-so of one avowedly acting as plaintiff’s attorney. That is in law one thing; a confession of judgment by an agent in the exercise of a power to act for defendant is quite another thing; and that is the only way a summary judgment could be entered ‘according to the tenor and effect’ of this bond.

“Again, conceding that one and the same counsel can appear and act as attorney for both parties, the least that can be said is that he must conform strictly to the terms of his authority. Here the authority was limited to the confession of judgment for the penal sum and did not pretend to authorize the attorney to liquidate the damages. It follows that the judgment is bad both in form and substance.”

See, also, Industrial Thrift and Loan Corp. v. Jedoresce, 30 Lacka. Jurist, 178.

It, therefore, appears that the judgment in the instant case was illegally entered, and the motion to strike it off must prevail.

Motion to open judgment.

Perhaps, in view of the fact that we have sustained the motion to strike off the judgment, it is not necessary to say anything about the motion to open it, but not only are the technicalities with the defendant, but the merits of the case are also with him. Among other things, the lease provided that the premises should be surrendered at the expiration of the term “in like repair and condition, natural wear and damages happening by fire, storm and other casualties only excepted.” The lease was for a part of the first floor, consisting of one store room, and one apartment on the second floor. There are two store rooms and two apartments in the building. A fire destroyed the premises Oct. 20,1923. The defendant, upon the promise of plaintiff landlady that she would restore the building, paid two months' rent after the fire in order to hold his tenancy. She refused to restore, and, after notice to her that the building was in an untenantable condition, he moved. Neither under the terms of the lease nor the general principles of the law was the tenant bound to restore. In Moving Picture Co. v. Scottish U. & N. Ins. Co., 244 Pa. 358, 363, it is held:

“In case of a demise of an apartment in a building, where no implication arises that by the demise any estate in the land was granted, the whole estate demised is extinguished with the destruction of the building, and the tenant’s liability for rent thereon ceases.”

See, also, Paxson & Comfort Co. v. Potter, 30 Pa. Superior Ct. 615.

We think the same rule applies to a part of the ground floor of a building which is used both for stores and for apartments. In such a case the tenant of one store room would not have a right, as against the other tenants and the landlord, to rebuild the store, particularly if such rebuilding of the store might interfere with the easements or other rights of the landlord or tenants. In such a case, we are of opinion that the tenant acquires no more right to the possession of the land for purposes of rebuilding than the tenant of an apartment immediately above him. It, therefore, appears that on the merits of the case, apart from the question of laches and even though both parties might have been guilty of some laches, the tenant was entitled to have this judgment opened.

Petition to dissolve attachment execution.

Here, again, we perhaps might rest our judgment on sustaining the petition to strike off the judgment, but, inasmuch as the attachment execution was issued while the judgment was apparently in full force, we will consider the legal phases of that proceeding. In the rule granted Feb. 27, 1924, upon the petition to strike off the judgment, “it is further ordered that the execution issued on said judgment be stayed, pending the determination of the rule and lien of levy to remain meanwhile,” and in the rule based upon the petition to open the judgment, it is directed that “all proceedings be stayed in the meantime until the further order of the court.” Without obtaining any allowance from the court, the attachment execution was issued Feb. 3, 1930, and a petition to dissolve it was presented Feb. 6, 1930.

An attachment execution is in substance, if not in form, an execution: Wray v. Tammany, 13 Pa. 394; Ellwanger v. Moore, 206 Pa. 234, 240. The opening of a judgment does not destroy its lien: Cope’s Appeal, 96 Pa. 294. The judgment does not lose its status by being opened. It is still a lien. A levy made on an execution outstanding thereon also retains its lien and the court may authorize an execution to issue on an open judgment: Markofski v. Yanks, 297 Pa. 74; Kittanning Ins. Co. v. Scott, 101 Pa. 449. Notwithstanding the judgment in this case was not opened, it has, at least, all the incidents of an open judgment so far as the plaintiff’s rights are concerned. Yet the plaintiff did not have the right, in the face of the plain order staying proceedings “until the further order of the court” and staying in terms the execution then issued, to issue, without allowance, an attachment execution. By causing an attachment execution to issue, in defiance of the order of the court, the plaintiff, in effect, set that order aside. Her duty was to first obtain a modification or revocation of the order made in 1924. Whatever our conclusion would have been on the rules to strike off and open this judgment, the petition to dissolve the attachment execution would necessarily have to be sustained: Levy v. Kline, 2 W. N. C. 630.

Now, June 30, 1930, the rule to strike off the judgment issued Feb. 27,1924, is hereby made absolute, the judgment in the above stated case is hereby stricken off and the execution is dissolved.

From Homer L. Kreider, Harrisburg, Pa.


author: Newcomb, P. J.,

text:
    Bushko, Tax Collector, v. Astolfi.
    S. Rosato, for appellant.
    June 13, 1930.
   Newcomb, P. J.,

The magistrate returns three separate transcripts of proceedings which went to judgment against defendant at the same time in various amounts, aggregating upwards of $500. That is the basis of one exception. His jurisdiction being limited to $300, it is objected that it could not be enlarged by the mere device of separate suits. They were begun by summons in assumpsit at the same time, returnable on the same day — and at the same hour. The subject-matter was unpaid taxes for the years 1927, 1928 and 1929, respectively. They went to judgment at the same time in default of appearance by or on part of defendant.

The causes of action, if any there were, were identical.. They were no more subject to severance for the sake of conferring jurisdiction than charges for so much merchandise sold in successive years. The exception is believed to be well taken.

But these records are open to another objection. The collector’s remedy by an action in assumpsit is purely statutory. As such, it doesn’t attach during the life of his warrant: Act of April 11, 1848, P. L. 517. There is nothing here to show the date of his warrant for either year. Hence, there is nothing on the face of either record to show that the warrant had expired by limitation. It follows that no prima fade cause of action is made to appear.

The exceptions are sustained and the judgments reversed.

From William A. Wilcox, Scranton, Pa.


text:
    In re Thomas M. Clark.

      Michael J. O’Callaghan, for guardian.

      Samuel W. Salus, for cestui que trust.

    Dec. 16, 1930.
   Alessandroni, J.,

Thomas M. Clark was confined to the State Hospital at Norristown in 1923, and on Jan. 8, 1924, Mary L. Clark was appointed guardian of the estate of her husband, Thomas M. Clark, by reason of his insanity. On Jan. 25, 1928, Thomas M. Clark was discharged from Norristown by order of court, and on Feb. 27, 1928, Mary L. Clark was discharged as guardian and ordered to turn all property over to Thomas M. Clark and to file an account. Testimony was taken before the auditor on the account, and to the original report filed by the auditor certain exceptions were filed. These exceptions were considered by the auditor, who modified in some respects his original report, and to the supplemental report filed by him exceptions have now been taken by both the accountant and Thomas M. Clark.

The accountant’s first exception is to a surcharge in the sum of $800, due to the auditor’s refusal to allow a credit of $800 claimed by the accountant for money paid the City of Philadelphia. The accountant claimed that a trespass action was brought against the City of Philadelphia by Bridget and Patrick McGaughey in the Court of Common Pleas No. 2, as of March Term, 1923, No. 4590. The plaintiffs claimed compensation for injuries caused by a defect in the paving of one of the properties owned by the estate of Thomas M. Clark. A verdict in the sum of $800 was recovered by the plaintiffs, which the accountant claims she paid to her attorney, J. M. R. Jermon, in cash, to be paid to the City of Philadelphia. Apart from accountant’s unsupported statement, there was no evidence introduced by her to prove the payment of this money. No receipts were produced, and no canceled checks were offered in evidence. The accountant’s testimony was evasive and contradictory. At one time she claimed that the money she used to pay this obligation had been deposited in the Columbia Avenue Trust Company. She later contradicted this statement. Several different explanations were made by her as to the source of the $800 which she paid to her attorney in cash, and the only proof of her claim is her uncorroborated statement. A representative of the city solicitor’s office testified that the city records do not show the payment of this sum, nor does J. M. R. Jermon’s name appear in their file. Under these circumstances, we must conclude that the auditor’s surcharge was correct.

The accountant next excepts to the disallowance of a claim for $600, for her support from Feb. 27, 1928, to Sept. 25, 1928, the date of the filing of her restated account. On Feb. 27, 1928, a decree was entered finding that Thomas M. Clark was capable of handling his own estate, discharging the accountant from her guardianship and ordering her to file an account and return all the property of Thomas M. Clark to him. An account was subsequently filed by the accountant and a restated account was filed on Sept. 25, 1928. We know of no authority which would entitle the accountant to support between the date of her discharge and the date when she filed her final account. The original order entered was made under the authority of section 6 of the Act of May 28, 1907, P. L. 292. It is there provided that “the court appointing such guardian shall have full power over the same, in directing an allowance for the said ward and for the support and maintenance of his wife. ...” Section 7 provides that “if the court shall find that the said person so afflicted has regained the ability to care for his or her property, the court shall so decree, and shall discharge the guardian; and thereupon the said person shall be, so far as the care of his or her property or person shall be concerned, for the future, the same as if the proceedings against him or her had never been taken.” Immediately upon the discharge of the guardian and the order returning the lunatic’s property to him, the lunatic was placed in the same position as if none of the proceedings had ever been taken against him. The provisions of the act merely empower the court to direct support during the time it has control over the lunatic’s estate. The moment the guardian is discharged the support order ceases and' she must take such proper steps to obtain support as are afforded against those compos mentis. The accountant’s remedy was to be found only in the Municipal Court, which, under the Act of July 17,1917, P. L. 1015, has exclusive jurisdiction. The auditor’s surcharge of $600 was in accordance with the law.

The accountant’s third exception is to the auditor’s disallowance of counsel fee in the sum of $250 in the proceedings to remove Mary L. Clark as guardian and return the property of Thomas M. Clark to his care. On Jan. 25, 1928, in the Quarter Sessions Court at Philadelphia, Judge Davison, specially presiding, found that Thomas M. Clark had recovered from his mental illness and should not be further detained at the State Hospital at Norristown. Thomas M. Clark was later compelled to bring proceedings to have Mary L. Clark removed as guardian, and the proceedings were opposed by Mary L. Clark, who engaged counsel to represent her. These services cost $250, and the auditor refused to allow the accountant credit for that fee. The auditor, however, allowed an attorney’s fee of $200, claimed by the accountant to oppose the writ of habeas corpus of Thomas M. Clark. This allowance was a proper one. In Brooke’s Estate (No. 1), 36 Pa. Superior Ct. 327, a similar question arose, and the court ruled that a guardian is not entitled to counsel fees to oppose removal from office. The court there stated that a guardian is only entitled to a credit for such counsel fees as are necessary in the discharge of his duty as guardian. Thomas M. Clark, having recovered, had, after hearing, been discharged by the court. The further expenditure of the guardian in opposing her removal from office, in view of these facts, was not justified, and under the foregoing authority, is not a proper allowance. The sole purpose of her action was to retain herself in office, and any fees that might have been expended for that purpose were expended on her own account and not for the benefit of the estate over which the court had given her jurisdiction.

The accountant’s fourth exception is to the disallowance of a commission of $100 for services rendered in the sale of some of the real estate entrusted to her care. The accountant had claimed a commission of $50 each on two small houses which she sold. A charge of $832.07 against the estate for services rendered by the accountant had been allowed by the auditor. This compensation apparently was for all the services rendered by the accountant, and the auditor has found that the allowance of this $100 would be a double payment for these services, inasmuch as the original allowance included all the services rendered. While it is true that a real estate broker would have been entitled to compensation, still the accountant acted in her representative capacity as guardian in negotiating for the sale of these properties, and any change made, therefore, should properly be considered in her claim for compensation as guardian. Having made a reasonable claim for compensation, we are not in sympathy with an allowance of extra compensation in detached transactions. The fourth exception is, therefore, dismissed.

The accountant’s final exception is to the finding of the auditor that the accountant should be surcharged with one-half of the costs of the audit. The estate involved was unquestionably very difficult to manage. It consisted of fourteen small properties which were in a very rundown condition, were very old and required constant care and attention. In addition, the class of tenants necessarily found in this type of property caused considerable trouble. As a result, there were numerous small expenditures made by the accountant for repairs, etc., for which no adequate record was kept by the accountant; numerous errors appeared upon an examination of the account and it was necessary for the accountant to restate her account. The loose manner in which her records were kept and the fact that adequate receipts could not be produced for all the items of receipt and expenditure unquestionably necessitated prolonged examinations before the auditor and were caused to a great extent by the accountant’s laxity. Under these circumstances, part of the expense of the audit should be imposed upon the accountant, and we believe a surcharge of 50 per cent, of the audit is a fair allocation. It must be remembered that the accountant is the wife of Thomas M. Clark, and not being properly informed as to the procedure to follow in the discharge of her duties felt that the property over which she exercised control was community property.

The accountant’s sixth exception is merely a summation of the above items.

Pour exceptions to the auditor’s supplemental report were filed on behalf of Thomas M. Clark. The first exception is to the auditor’s refusal to surcharge the accountant $1751.68. This sum covers more than 150 separate items of expenditures which were included in the account and which it is contended were not properly proved. It consists of items of credit claimed for repairs made on the properties comprising the estate and for clothing and money expended on behalf of Thomas M. Clark during the period from 1924 to 1928 when the lunatic was confined to the Norristown State Hospital. The basis of the exception is that the accountant has not produced vouchers to prove the expenditures. It is established in this jurisdiction that under certain circumstances the want of regular vouchers may be supplied, in the discretion of the court, by the oath of the guardian. The court, in McCartney’s Estate (No. 1), 79 Pa. Superior Ct. 326, stated: “In Bowman v. Herr, 1 P. & W. 282, it is said that cases may arise where the Orphans’ Court may in its exercise of reasonable discretion supply the want of a regular voucher by the oath of a guardian or administrator; but it must be done with great caution. It is a kind of evidence upon which little reliance should be placed; it should be resorted to with great delicacy, and even then should be sustained by some corroborative proof; and in Romig’s Appeal, 84 Pa. 235, it is stated that although receipts are not indispensable, yet it is the imperative duty of registers, auditors and the judges of the Orphans’ Courts, to require some distinct and definite form of proof to establish the validity of demands made against decedents’ estates. The question as to the weight to be given to the oath of an accountant in his own behalf is discussed by Judge Sharswood in Reeside v. Reeside, 6 Phila. 507.”

There it was stated: “So, also, when the account was of long standing, the court has sometimes permitted the accounting party to discharge himself upon oath of all such matters as he could not prove by vouchers by reason of their loss.”

In the present case, the accountant’s first attorney, J. M. R. Jermon, who had received some of the vouchers from the accountant, died, and an examination of his accounts did not disclose the vouchers which had been turned over to him. It was testified that those handling Jermon’s estate destroyed some of his records and papers, and this certainly accounts for the loss of some of the vouchers. In addition, it was testified that the accountant’s present attorney had lost some of the vouchers. The accountant further explained that all checks which she paid had to be countersigned by the surety company, and as to those which were in smaller sums she usually paid in cash. One book of accounts which the accountant kept, and from which a member of the bar testified he prepared the account, had been lost. The accountant is well advanced in years, and, of course, had no knowledge of the proper method of keeping books. In addition, many of the items were very small and instances of this kind of expenditures were quite numerous. Such a condition prevailed because of the character of the real estate over which she had control. In view of these facts and the additional consideration that the expenditures which she claimed appear quite necessary for the maintenance of the estate over which she had jurisdiction, we feel that the proof offered is sufficient. Moreover, the only testimony to disprove the fact that Thomas M. Clark had received the clothing and funds for which she claimed credit was provided by Thomas M. Clark himself, who, during this entire period, was legally insane. No effort was made to establish his competency to remember just what he received, and in many respects he corroborated the accountant’s statements. In view of all these facts and the clear statements made by the accountant herself as to the various items of expenditure, we believe that the allowance was proper and that the exception should be dismissed.

The second exception filed on behalf of Thomas M. Clark is to the auditor’s refusal to surcharge the accountant $832.07, which was allowed her as compensation for her services. We are of the opinion that the amount allowed is very reasonable, especially in view of the character of the estate. The auditor has reported that the houses are ancient, dilapidated, require constant repairs and the tenants are of a difficult character. These facts are not denied by Thomas M. Clark. The accountant’s services represented four years’ personal supervision and attention, and, in spite of the fact that her accounts were not kept in the manner in which they should have been kept, we feel that the allowance was reasonable and thoroughly deserved.

Thomas M. Clark excepts to the auditor’s charge of one-half the cost of the audit which was placed upon him. We feel that the auditor’s disposition of the cost of the audit was proper and equitable. Numerous exceptions were filed to the account on behalf of Thomas M. Clark which proved to be frivolous, and considerable testimony was taken on his behalf which prolonged the audit unnecessarily. We have carefully read through the record of the proceedings before the auditor and concur in the imposition of costs made.

The final exception filed on behalf of Thomas M, Clark is to the auditor’s refusal to surcharge the accountant $120, which is an item of one year’s interest on a $2000 mortgage. This question was raised merely by a letter addressed to the auditor and is not supported by any testimony. There is nothing to indicate that this interest was received by the accountant, and there is no proper objection stated on the record which requires consideration. In view of the fact that the claim is not supported by testimony and that the question is not properly before us, the fourth exception must be dismissed.

Decree.

And now, to wit, Dec. 16, 1930, upon consideration of the auditor’s report and supplemental report in the above entitled matter, the same are hereby approved, and in accordance therewith Thomas M. Clark is hereby awarded the sum of $572.53 against Mary L. Clark; the auditor, Gustave F. Straub, Esq., is awarded the sum of $389.90 for his fee and costs expended, said fee and costs to be borne equally by Thomas M. Clark and Mary L. Clark; and the Commonwealth of Pennsylvania is awarded the sum of $601.02 against Thomas M. Clark for his maintenance at the Norristown State Hospital.