author: Houck, J.,

text:
    Schuylkill Trust Company, Admin’r, v. Klemr et al.

      Edgar Downey, for plaintiff.

      A. D. Knittle and T. J. McCarthy, for defendants.
    July 23, 1928.
   Houck, J.,

The statement of claim alleges that Joseph Adamchick died testate on or about July 13, 1927; that letters of administration cum testamento annexo were duly granted on Feb. 13, 1928, to the plaintiff; that Joseph Adamchick, at the time of his death, was a depositor in said St. Clair State Bank, one of the defendants; that his account in said bank is entered and designated as “George Klemr for Joseph Adamchick;” that on the date of the death of Adamchick there was a balance of $3988.67 in said bank in his account; that the plaintiff has made demand upon George Klemr and the St. Clair State Bank for payment to it of the said sum of $3988.67, and that payment has been refused. The suit is against George Klemr and the St. Clair State Bank to recover the said sum of $3988.67. Affidavits of defense were filed by both George Klemr and the bank. At the argument, counsel for the bank stated that it was merely in the position of a stakeholder and that the amount deposited with it would be paid by it to the rightful claimant as determined in this proceeding. In the affidavit of defense filed by George Klemr (the affidavit filed by the bank is substantially the same in character), the defendant, Klemr, alleges that the funds here in suit were given by Joseph Adamchick at various times and places to the defendant, George Klemr, for deposit in the St. Clair State Bank under a parol trust for specific purposes, and that the funds were deposited in the said bank in the name of George Klemr impressed with the specific trust. It is admitted that the account is designated “George Klemr for Joseph Adam-chick.” The alleged parol trust is thus set out in the tenth paragraph of the affidavit of defense: “That if the said George Klemr survived the said Joseph Adamchick, that he, the said George Klemr, should out of said deposits pay the personal debts of Joseph Adamchick, pay his funeral expenses, erect a monument on his grave, have masses said in his church once a month for three years, pay to the son of the decedent ten dollars per month until said son reached the age of sixteen years, and that, if after all these were paid for, the sum remaining was to be retained and owned by said George Klemr as payment for his work in administering the said trust and the many favors shown by George Klemr to Joseph Adamchick during his lifetime, and that on no account should any part be paid to his, decedent’s, wife or other children.” The defendant further avers that the plaintiff administrator is not entitled to the fund, and that, in pursuance of the parol trust, the defendant has expended from the deposit various sums for various purposes, amounting to the sum of $1145.58, and that he has contracted for a monument for Adam-chick at a price of $430, for the payment of which he alleges his liability as trustee. On motion of the plaintiff, a rule was granted upon the defendants to show cause why judgment should not be entered against them for want of sufficient affidavits of defense, and three reasons are assigned in support of the rule, namely, (1) that the affidavits of defense are vague, indefinite and evasive; (2) that the affidavit of defense filed by the St. Clair State Bank does not set forth the terms or extent of the trust alleged in the tenth paragraph of said affidavit; (3) the affidavit of defense filed by George Klemr bases the defense entirely upon an alleged oral testamentary disposition of the fund sued for, which disposition is without legal effect.

We are not convinced that the affidavits of defense are vague, indefinite and evasive. The affidavit of defense filed by the bank alleges that Joseph Adamchick did not maintain an account as a depositor in his own right, and that the amount on deposit at the time of Adamchick’s death was a fund which was given by Adamchick to Klemr and was deposited in the name of George Klemr for Joseph Adamchick at the express direction of Joseph Adamr chick and George Klemr. The deposit, it is alleged, was in the nature of a trust. The bank could not be expected to know the specific and particular details of the arrangement between Adamchick and Klemr, and the defense made by the bank is sufficiently definite. The details of the parol trust relied upon by both defendants to defeat the plaintiff’s claim may be gathered from the affidavit of defense filed by George Klemr. In our opinion, this affidavit of defense sets out the alleged trust in sufficient detail. Consequently, the first two reasons assigned in support of the rule for judgment must fall.

This brings us to a consideration of the real question in the case. The plaintiff contends that the mere fact that the account was carried in the name “George Klemr for Joseph Adamchick” shows that the fund belonged to Joseph Adamchick. We are unable to agree with this contention. The credit on the books of the bank is prima facie evidence of ownership: First National Bank of Lock Haven v. Mason, 95 Pa. 113, 117. And a deposit made as agent or trustee for another is prima fade the property of the principal or of the cestui que trust: Bank of the Northern Liberties v. Jones & Cole, 42 Pa. 536; Arnold et al., Post No. 13, G. A. R., v. Macungie Savings Bank, 71 Pa. 287; Burger v. Burger, 135 Pa. 499. Therefore, the manner in which the account was designated does not conclusively show that the fund was the property of Joseph Adamchick. At most, it is his prima facie, and the burden is on the defendants here to overcome that prima facie presumption. We are unable to determine, on the rule for judgment for want of a sufficient affidavit of defense, that the fund did in fact belong to Adamchick, the decedent, at the time of his death. The bank alleges in its affidavit of defense that the fund on deposit is due and payable to George Klemr for Joseph Adamchick, and that no right to the fund has vested in the plaintiff administrator. This is tantamount to a denial that the fund on deposit was the property of Adam-chick.

The plaintiff further contends that the trust set up by George Klemr is an attempted testamentary disposition of the property of Joseph Adamchick, because it is not to take effect until after Adamchick’s death; that were it in writing, it would be a will, but being in parol, it is not a will and has no legal effect whatever. On the other hand, the defendants contend that this is a valid parol trust; that control of the property passed out of Joseph Adam-chick; that it is not an attempted testamentary disposition of his property; and that the fund in question belongs to the trustee and not to the administrator.

There is no doubt that trusts of personal property may be created by parol: Murphy v. Hubert, 7 Pa. 420; Maffitt’s Admin’r v. Rynd, 69 Pa. 380; Christian Moerlein Brewing Co. v. Rusch, 272 Pa. 181. Does Klemr’s affidavit of defense set forth a parol trust? It will be noticed that the trustee was to do the things enjoined upon him if he survived Adamchick. He was to pay the debts of Adamchick, pay his funeral expenses, erect a monument on his grave, have masses said in church, pay to the son of Adamchick $10 per month until the son reached the age of sixteen years, and whatever balance was left after these payments was to become the property of Klemr, and it is specifically stated that no part of the fund should be paid to the decedent’s wife or other children. By transferring the account to the name of Klemr, the decedent parted with possession and control of the money: Lines v. Lines, 142 Pa. 149. “The securities passed into the hands of the trustee along with the trust deed. The transaction was complete and the donor was absolutely denuded of his property.” See, also, Dougherty, Admin’r, v. Shillingsburg, 175 Pa. 56, where the court says: “It will be noticed, the possession of the money was complete in Shillingsburg; it was in his physical control just as fully as if he had handed the $3000 to Kelly and the latter had handed it back to him. Kelly relinquished all right to the money, except on the happening of the single contingency, his restoration to health. No change of intention on his part would touch or disturb the dominion of the trustee over the fund, or the right of the beneficiaries to it. There was by the arrangement such transfer of the chattel, even if nothing further had been done, as placed the legal title in the trustee for the benefit of the donees.”

That Adamchick might have revoked the trust during his lifetime, or that he might have reserved the income from the fund for himself for life, or that his creation of the trust deprived his widow and children of an interest in the fund, are all immaterial. “A power of revocation is perfectly consistent with the creation of a valid trust. If this right is never exercised according to the terms in which it is reserved, as in the case at bar, until after the death of the donor, it can have no effect on the validity of the trusts or the right of the trustee to hold the property:” Windolph v. Girard Trust Co., 245 Pa. 349; Dickerson’s Appeal, 115 Pa. 198; Benkart v. Commonwealth Trust Co., 269 Pa. 257; Mandel v. Bron, 270 Pa. 566; Dolan’s Estate, 279 Pa. 582.

The only remaining question for consideration is whether or not the alleged trust is an attempted testamentary disposition of the decedent’s property. The plaintiff, in support of its contention that this is an attempted testamentary disposition, relies upon Turner v. Scott, 51 Pa. 126, Frederick’s Appeal, 52 Pa. 338, and Beaumont’s Estate, 214 Pa. 445. In our opinion, these cases are readily distinguishable from the case at bar. In the Turner case, the father executed an indenture to his son, in which he provided that the conveyance was in no way to take effect until after his decease. It was held that this was a testamentary instrument, and, therefore, revocable. The decision in Frederick’s Appeal was put on the ground that the attempted trust was simply an arrangement to promote the grantor’s convenience and interests and was revocable. This case was commented on in Wilson v. Anderson, 186 Pa. 531, 537, as follows: “The case relied on by the appellant as determining that this deed should be construed a will (Frederick’s Appeal, 52 Pa. 338) does not by any means hold that a deed of trust reserving to the grantor the income of the trust estate for life, and postponing until his death the enjoyment by the beneficiaries of the principal, is necessarily testamentary without regard to the manifest intent of the grantor.” It is also said in Potter v. Fidelity Ins. Trust Co., 199 Pa. 360, 365, that Frederick’s Appeal has been frequently distinguished and limited in its application. In Beaumont’s Estate, the decedent assigned interest-bearing bonds to a trust company to collect the interest and to apply it to the payment of premiums on a life insurance policy and to apply the proceeds of the policy in a certain manner. It was held that the assignment did not pass a present interest in the bonds. On its facts, that case is readily distinguishable from the present case: Eisenlohr’s Estate, 258 Pa. 438, 441.

The mere fact that a writing or a parol trust is to become effective only after the death of a party is not sufficient to give it a testamentary character: Eisenlohr’s Estate, supra; Mattocks v. Brown, 103 Pa. 16. Whether or not a testamentary disposition is attempted depends to some extent upon the intent of the settlor: Wilson v. Anderson, supra; Windolph v. Girard Trust Co., supra. In the latter case the Supreme Court said: “The intention of the settlor at the delivery of the deed was to part with the legal title and the reservation to herself of a life interest and the enjoyment of the estate until her death did not invalidate the trust as to the beneficiaries named in the deed.” It is manifestly impossible to determine the intention of the settlor in the case at bar merely from the pleadings. Consequently, we are of the opinion that judgment may not be entered for want of a sufficient affidavit of defense. The facts are in no way similar to the facts in White v. Berardina, 75 Pa. Superior Ct. 346. In that case there was neither a trust nor a gift. In the ease at bar, we are of the opinion that the defendants are entitled to develop the facts in order that it may be ascertained whether or not the decedent created a valid parol trust. We think the affidavits of defense set up sufficient to prevent the entry of judgment.

The rule for judgment for want of sufficient affidavits of defense is discharged.

From M. M. Burke, Shenandoah, Pa.


source: Caselaw Access Project

author: Cummins, J.,

license: Public Domain

text:
    Commonwealth v. McPhee.

      Ralph W. Peacock, for plaintiff; David H. Weiner, for defendant.
    Aug. 20, 1928.
   Cummins, J.,

The defendant, a distributor by retail of gasoline and oil, under and pursuant to the provisions of the Act of June 15, 1923, P. L. 834, and the supplements thereto, collected from the purchasers, for the Commonwealth, a State tax and emergency State tax imposed by said act on liquid fuels, and made returns of said tax so collected to the office of the Auditor General, which said official, having determined that said tax so returned was inaccurate, under and by virtue of the authority vested in him by the Act of June 15, 1923, P. L. 834, estimated and assessed against said defendant the balance of tax found to be due, together with the proper penalty, and gave notice to the defendant of such estimated assesssment. The balance of tax due the Commonwealth so assessed against the defendant amounts to $949.49, with interest from March 30, 1927, from which assessment so made no appeal was taken by the defendant. The assessment so made not having been paid, the Commonwealth properly seeks to recover the amount thereof in an action of assumpsit: Act of June 15,1911, § 1, P. L. 974.

To the Commonwealth’s claim the defendant has filed an affidavit of defense, in which he makes no denial of the fact that he was duly notified by the Auditor General of the assessment, that notice of assessment was regularly given him, that no appeal was taken therefrom, or that he has not paid the amount thereof. The case is now before the court on motion for judgment for want of a sufficient affidavit of defense.

Section 11 of the Act of March 30,1811, P. L. 145, provides that if a taxable is dissatisfied with any settlement made by the Auditor General or State Treasurer, he must appeal therefrom to the Court of Common Pleas within sixty days after notice of such settlement. An appeal from such assessment, as provided by this section of the act, is the taxable’s exclusive remedy: Hays v. Com., 27 Pa. 272. The provisions of said Act of March 30, 1811, P. L. 145, have application to settlement of accounts by the Auditor General of taxes due the Commonwealth from dealers in gasoline, assesssed and collected under the provisions of the Act of June 15, 1923, P. L. 834: Schoyer v. Comet Oil and Refining Co., 284 Pa. 189.

The defendant having failed to appeal from the settlement of the assessment made cannot now defend against the Commonwealth’s claim on the ground that the same is not due, his statutory remedy being exclusively by appeal: Philadelphia v. Com., 52 Pa. 451; Hays v. Com., 27 Pa. 272.

Decree.

And now, to wit, Aug. 20, 1928, judgment for want of a sufficient affidavit of defense is entered for the plaintiff and against the defendant for the sum of $949.49, with interest from March 30, 1927.

Prom Harry D. Hamilton, Washington, Pa.


author: Wilhelm, P. J.,

text:
    Garside’s Estate.

      A. D. Knittle, for accountant; S. L. Kramer, for Nellie Charlton.
    June 18, 1928.
   Wilhelm, P. J.,

Prom the evidence we find the following facts:

1. Joseph H. Garside died on or about March 16, 1927, testate, unmarried, having disposed of his estate by last will and testament.

The first paragraph of the will, dated Feb. 26, 1927, contains a bequest to Miss Ejnma Yarnall of $250 to pay funeral expenses. Miss Yarnall declines this bequest because it is insufficient to cover the cost of the funeral, and her declination is evidenced by a paper executed under date of May 23, 1927. Therefore, this bequest need not be further regarded. The cost of funeral, which exceeded the amount of the bequest, has been paid by the executor and credit taken for the same in the account.

The second paragraph of the will gives directions concerning the administration of his estate as to the manner of its being converted.

The only question raised here is as to the construction of the third paragraph of the will, which reads as follows:

“I give and bequeath my shares of the capital stock of Merchants National Bank, Pottsville, Pa., and also the proceeds to be realized from the conversion into cash of my interest in Charlton Motor Company and the proceeds to be realized from the sale of my said real estate to my daughter Mrs. Nellie Charlton and my grand-daughter Elizabeth Garside Charlton, share and share alike, provided, however, that neither said stock nor said cash which may be realized from the sale of my interest in Charlton Motor Company and said real estate shall be delivered or paid to my said daughter and granddaughter, or either of them, during the lifetime of Thomas J. Charlton, husband of my said daughter, but shall be held in trust for them and the survivor by my executor hereinafter named, the income however to be paid to them or the survivor of them during the period same may be so held in trust by my said executor and upon his decease, should he survive me, the shares in my estate herein given to my daughter, and my grand-daughter, shall be delivered to them or the survivor of them absolutely, but should neither my daughter nor my grand-daughter survive said Thomas J. Charlton, then and in such event the shares in my estate which are herein given to them and the survivor of them shall be delivered and paid to the Public Library óf Pottsville, Pa., and the Primitive Methodist Church of Foundry Street, Dunkinfield, Cheshire, England, share and share alike.”

Under this paragraph, Nellie Charlton^ daughter of the testator, asserts that she is entitled to the whole of the balance for distribution, because the bequest of the residue of the estate to charity is void for the reason that the will was executed within thirty days prior to the death of the testator, and that, because the bequest to charity fails, the will is void, or that clause of the will which includes the bequest to charity is void.

If it is the contention of Nellie Charlton that the testator died intestate as to that portion of his estate bequeathed to charitable uses, and she being his only heir-at-law takes the whole of it under the intestate laws. This position is unsound.

If the daughter asserts this upon the theory that her life estate is merged in the fee by reason of the bequest of the residue failing, that position is untenable because the granddaughter is one of the beneficiaries of the trust created during the lifetime of the son-in-law. It follows, therefore, that it cannot be concluded that there is a merger, because it cannot be ascertained at this time who is the beneficiary in the event of the death of the son-in-law; that is, whether it is the daughter or the granddaughter, or both of them. At this time it cannot be ascertained whether or not the testator died intestate as to any portion of his estate. If the daughter and granddaughter, or either of them, survive the son-in-law, there is no intestacy, and the daughter or granddaughter, or both of them, take the residue.

As we read this will, the testator intended that his daughter and granddaughter should enjoy his estate, both as to income and principal, and, to most certainly effectuate this purpose, the residue was placed in trust probably so that it would not be subject to the control or influence of the son-in-law; and the further intention of the testator was that the son-in-law should not have or enjoy any part of his estate, because the will provides that if the testator’s daughter and granddaughter do not survive the son-in-law, the estate shall go to charity.

The disposition of his estate by the testator was a lawful one, and, therefore, should be carried into effect. The reason for the several provisions in the will need not be inquired into, because every person has the right to dispose of his estate as he sees fit, in so far as such disposition is lawful.

This trust is not created simply for the purpose of preserving the estate for the benefit of the charities named, but it is an active trust raised for the protection of his daughter and granddaughter, and it may not now be said with any certainty that the testator died intestate as to any portion of his estate. It is probable that, if the bequest to charity had been valid, in the ordinary life expectancy, the devolution to the charities named would not occur.

Prom M. M. Burke, Shenandoah, Pa.


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

text:
    Lennig’s Estate.

      W. W. Montgomery (Roberts & Montgomery with him), for Maude L. Hawkes, Elise J. de B. Macauley and Louie L. Rowland, exceptants,

      Joseph W. Henderson and Francis Rawle, for Mary Eleanor Arnois and Charles L. Arnois, contra.

      R. M. Remick (Saul, Ewing, Remide & Saul with him), for Charles L. Thudicum, contra.
    April 17, 1929.
   Gest, J.,

The narrow question of construction arising in this case is very susceptible of argument and was ably argued. The testator, who wrote his own will, with the natural result, has designated as his beneficiaries “my legal descendants then living the Sons and daughters of my daughter Williamina Thudicum and Joyeuse Arnoys, my sons Nicholas and John B. Lennig and none others,” and the enigma, the answer to which was buried with the testator thirty-eight years ago, is whether the word “descendants” enlarges the words “sons and daughters,” or whether the latter phráse restricts the meaning of the former. Tne “descendants” of a testator mean, in plain English, his issue ad infinitum; “sons and daughters” have a meaning equally plain, so that the clause is inconsistent and ambiguous. Our task is to harmonize these inconsistencies and extract from the will as a whole the real intention of the testator. The usual canon of construction is that a will must be construed from its four corners, and if the will is four-square, the problem is generally rather simple, but if the will is an irregular polygon, the difficulty is greater.

As it has been often said, the word “children” will not include “grandchildren” unless this appears clearly to have been the meaning of the testator or unless the will would be otherwise inoperative, Dickinson v. Lee, 4 Watts, 82; Hallowell v. Phipps, 2 Wharton, 376; Castner’s Appeal, 88 Pa. 478, which are referred to in Williamson’s Estate, 3 D. & C. 1, affirmed 82 Pa. Superior Ct. 444, where a similar difficulty arose as between grandchildren and great-grandchildren, and we can only solve the problem by consideration of the will as a whole, which the Auditing Judge has carefully analyzed in the light of testator’s circumstances and knowledge of his family. We think that the expression “and none others” is not used by the testator to qualify the term “sons and daughters,” but to make it clear that the descendants of his other daughter, Ottilia, were not included in the gift, as it appears from the will itself, and it is indeed conceded, that Ottilia had displeased her father, the testator, by her marriage, so that he intended to deprive her and her children from all participation in his estate beyond the comparatively trifling provision he expressly made for her children.

We need not elaborate the argument of the Auditing Judge, except to say that we regard as very significant the testator’s direction that the participants in his residuary estate should claim and prove their interest within one year after three months’ advertisement. As the Auditing Judge points out, this could not have been intended merely for the ascertainment of grandchildren, though we need not lay any special stress on the Biblical and poetical use of the expression “sons and daughters” as equivalent to descendants ad infinitum. It was indeed suggested in argument by counsel for the children of John B. Lennig that the gift to descendants thus interpreted would include not merely the living grandchildren but also their living issue, all being legal descendants then living of the testator, and who appear to be fourteen in number altogether, but we think this would be a very strained construction. To be sure, it has been held in some cases that in a gift to persons nommatim, or as a class and their issue, the issue may take concurrently, or, as it is sometimes expressed, in competition with their living parents. The presumption is against such an unlikely meaning, if there is even a faint glimpse of a different intention, and, without discussing the numerous cases in other jurisdictions, we refer merely to Arnold’s Estate, 22 Dist. R. 1, and Shoch’s Estate, 30 Dist. R. 367 ; 271 Pa. 165. We are of opinion that the Auditing Judge correctly held that the parties entitled were the living children of the testator’s four children named and the two children of Alexander Arnois, the deceased son of Joyeuse. Joyce’s Estate, 30 Dist. R. 840, 273 Pa. 404, is very much in point.

But we are of opinion that the Auditing Judge was in error in awarding distribution per stirpes among all the participants. The gift is to “my legal descendants then living the sons and daughters of my daughter Williamina Thudicum and Joyeuse Amoys, my sons Nicholas and John B. Lennig and none others.” The meaning of the latter phrase has been already discussed. The gift, however, is to a class, all of whom stood in the same plane, being all grandchildren of the testator. The gift is to them, share and share alike, and, in our opinion, the case is governed by Brundage’s Estate, 36 Pa. Superior Ct. 211, rather than by Sipe’s Estate, 30 Pa. Superior Ct. 145, which was relied upon by the Auditing Judge. In the latter case, the gift was “to my brother Daniel, to the children of Elizabeth my sister, and to the children of my sister Louisa, and to the children of Michael (another brother) share and share alike,” thus indicating an intention to define several different classes of beneficiaries. Daniel survived and had no children, Elizabeth had seven children, Louisa had five and Michael had two, and the distribution was made per stirpes. In Brundage’s Estate, however, the gift was “to my brothers’ and sisters’ children in equal proportions share and share alike,” and the court held that the estate should be divided equally among all the children of his brothers and sisters, who were described as a single class, all of them being the same relationship to the testator. When, however, we come to consider the two children of Alexander Amois, who, if he were living, would be entitled to one share, we are of opinion that they represented the interest of their father and should divide it between them in analogy to the statute of distribution. While all the numerous cases on the subject differ to some extent in their phraseology, we think this result agrees with the views of the Supreme Court in Minter’s Appeal, 40 Pa. 111; Hoch’s Estate, 154 Pa. 417, and Wootten’s Estate, 253 Pa. 136. See, also, Baizley’s Estate, 7 D. & C. 1.

This construction of the will, we think, gives due weight to all of its phrases. The sons and daughters of the testator’s four children named, being all his grandchildren now living, take per capita, share and share alike, which was the testator’s primary intention, while the legal descendants now living of the deceased grandson, Alexander, take his share per stirpes, reaching a result which is in harmony with the phraseology of the will and in analogy with the intestate law. The Auditing Judge authorizes us to say that he concurs in this modification of his adjudication.

The distribution of the residuary estate should, therefore, be awarded one-fifth to each of Maude L. Hawkes, Elise J. de B. Macauley, Louie L. Rowland and Charles L. Thudieum and one-tenth to Mary Eleanor Amoys (or Amois) and one-tenth to Charles L. Arnois. To this extent, the exceptions are sustained and all others are dismissed.

Counsel will prepare and submit to the Auditing Judge for his approval a schedule of distribution in accordance with this opinion.

Lamorelle, P. J.,

dissenting. — Having provided for his widow, his children and certain of his grandchildren from a trust of his residuary estate, testator bequeathed a large part of such residuary estate, upon the termination of the trust, for enumerated charitable and educational purposes. Evidently realizing that these gifts might not exhaust the estate, he thus disposed of the excess, if any:

“Any balance remaining upon the completion of the aforenamed devices, I direct and order my Trustee to distribute and pay over Share and Share alike amongst and to any of my legal descendants then living the Sons and daughters of my daughter Williamina Thudieum and Joyeuse Amoys, my Sons Nicholas and John Bouligner Lennig and none others. . . .”

The trusts have terminated and there being a “balance,” the Auditing Judge, in making distribution, includes as distributees two great-grandchildren, Eleanor Mary Arnois and Charles Lennig Arnois, issue of Alexander Arnois, a deceased son of a deceased daughter. He would have taken if alive, but he died in 1920.

Exceptions to this ruling are dismissed in the majority opinion.

I find no warrant for such construction of the will, and I, therefore, file this dissent.

I know of no'case where “sons and daughters” have been held to mean anything other than sons and daughters, nor do I know of any case where, in a gift to.living children, grandchildren have been allowed to participate along with them, except in a few isolated instances, wherein the context was such that escape from such decision was practically impossible.

In Page’s Estate, 227 Pa. 288, Judge Penrose (at page 289), speaking for this court, enunciates the well-known principle: “Campbell’s Estate, 202 Pa. 459, was not intended to change the well-settled principle of interpretation that, in the absence of evidence of a contrary intention afforded by the will itself, a gift to ‘children’ will not be understood as including any more remote class of descendants.”

In the case cited there was a trust of two-sixths of the residue for a nephew, James F. Breuil, for life, and upon his decease the corpus was to be distributed among his children living at the time of his death.. James F. Breuil had two sons; one of them died in the lifetime of his father, leaving a child, great-grandnephew of decedent. He claimed one-half of the fund on the theory that “children,” as used by testator, included “grandchildren.” In deciding against his contention, Judge Penrose says (at page 289) : “The estate of those entitled at the termination of the life estate is contingent, purely. The gift is to the ‘children’ of the first taker living at the time of his death; and being his ‘child’ is no less an integral part of the description of the person then becoming entitled than is the fact of being then alive.”

His opinion was adopted by the Supreme Court.

Unless, therefore, in the instant case the context shows a broader intention, the present case is ruled by Page’s Estate, supra.

What context have we? Following so much of the clause above quoted, the will continues: “. . . and in default of any such claiming and proving their interest within One Year after three months’ Summons in Six of the principal News Papers of this City and New York, then the said balance to be divided and paid Share and Share alike one half to the Trustees of the University of Pennsylvania to be invested for the use of the Free Scholarship Fund aforenamed, the other half to be divided one half to the use of the German Hospital and the balance to the Pennsylvania Hospital of Philadelphia.”

To my mind, this mandate is not only insufficient on the facts of the case to justify the construction that it showed an intention to embrace grandchildren, but such construction is misapplied, because in the very clause itself testator used the words “any such claiming. . . .” “Any such” can have but one meaning, and that is: “Sons and daughters of my daughter Williamina Thudicüm and Joyeuse Arnoys, my Sons Nicholas and John Bouligner Lennig and none others. . . .” The mere fact that testator desired that if none of his grandchildren could be located within a given time, such shares as they would otherwise take should pass to certain charities, etc. — the first object of his bounty, so far as the major portion of his residuary estate was concerned — is not a compelling reason why the class should be enlarged by adding those not mentioned, and, therefore, presumably not to be included.

I regard the words, “the Sons and daughters,” etc., as in apposition with the expression “my legal descendants then living. ...” I fail to see that either phrase is intended to or does restrict the other; they are not in conflict. The gift is to my legal descendants, being the living children of four of my children. Amois, a child of the daughter, Joyeuse, could not take, for when the trust finally ended he was dead, and on the day of his death he effaced himself from the class, which class was limited to then living descendants, sons and daughters. How, then, may his two children (great-grandchildren of testator) take? They cannot take through their father; his rights ended with his death; they cannot take by substitution, for this is a class legacy. Nowhere in testator’s will is there any reference to great-grandchildren; he had in contemplation his wife, his children, his children’s “sons” and “daughters,” the charities, the educational scheme, and no more. And of the many descendants testator might possibly have, this “balance” was to be distributed in terms among living sons and daughters of four of his children. Neither language nor intention could be plainer nor more exact. It is, of course, possible that by the words “none others” he meant no more than to exclude the “sons and daughters” of his deceased daughter who married William Fullerton; it is, however, equally possible that the obvious meaning of these words should prevail, i. e., as indicating distribution among certain specified sons and daughters to the exclusion of more remote descendants; the context surely justifies such conclusion; but ignoring entirely the words “and none others,” I find no warrant for including descendants other than those in so many words designated. The doctrine or principle of “potential intestacy” has no application in the instant case. Wherein there are contingent remainders, with no limitation over, there is always the possibility of intestacy. But, if in fact, upon the death of the testator or at the time fixed for distribution, it is ascertained that no actual intestacy results, such possibility, to wit, that it might have existed, does not justify a distribution into which this possibility enters as a factor in determining who shall take. Moreover, in the instant case there is a limitation over, and because of such fact, in no event could there be an intestacy.

In short, I find nothing either contradictory or doubtful in this particular dispositive clause, and, therefore, nothing requiring interpretation or construction; and for these reasons I am of opinion that testator’s expressed intention should govern.

I cite an authority which to me, by analogy, seems to be directly in point: Mifflin’s Estate, 3 D. & C. 638; 279 Pa. 429. Testator had given his residuary estate unto “such of my four nephews,” by name, “as may be living at the time of my death, . . .” and on the death of one named nephew it was provided that his share should be held in trust for life, with remainder at his death to such of his brothers as might then be living, and the issue of such as might then be dead, per stirpes. Three nephews survived testator; but the one nephew whose brothers took on his death died in testator’s lifetime. This court awarded one-fourth to these brothers, despite the fact that as this brother did not survive testator he took nothing, and, therefore, nothing could pass from him. In reversing, Mr. Justice Schaffer said (at page 432) : “If the original gift be, not to the class generally, but to such of them only as survive the testator, a contingent gift engrafted thereon in case of the death of any of them can only mean death happening after the death of the testator: 2 Jarman on Wills (6th ed.), 705.”

“This is the sort of will that is construable from its language alone. As we said in Long’s Estate, 270 Pa. 480, 487: ‘When the intent of the testator, and by that is meant his actual intent, can be fairly gathered from his words, the fact that another testator had used the same words with a different meaning is of no avail. Neither precedent nor rules of construction can overcome the testator’s expressed intent.’ Tested by this standard of the testator’s actual expressed intent as manifested from the words of the will, we find that the devise was to ‘such of my four nephews (naming them) as may be living at the time of my death/ and such an one Danforth was not, as he was not alive at the time of her death:” Mifflin’s Estate, 279 Pa. 432.

To paraphrase, testator gave this balance to such of his living descendants as are sons and daughters of his four named children: and therein is the analogy. Those only of the sons and daughters who are alive when the trust terminates may take. The one son (child of Joyeuse) was not then living; nothing passed to his issue because he was not a member of the specified class — and there was no independent gift, nor one by substitution.

No thought of great-grandchildren appears anywhere in the will. Why, then, should we depart from well-settled principles to benefit great-grandchildren at the expense of sons and daughters of children, to whom alone testator says he intends this “balance” to be given? His intention was to limit the class, not to enlarge it. Why strive for a presumed intent; sons and daughters of children are liable to migrate and to disappear, as well as more remote issue.

I would divide the fund among the four living sons and daughters of the four children, per capita, and dismiss all exceptions inconsistent with this ruling and sustain all others.


author: Sherwood, J.,

text:
    York County Commissioners’ Appeal.

      Samuel Kurtz, for rule; George S. Love, contra.
    Oct. 22, 1928.
   Sherwood, J.,

This is a rule to show cause why the county commissioners’ appeal from the report of viewers in No. 1 of January Sessions, 1928, should not be stricken off.

At the instance of Jacob C. Kauffman viewers were appointed to ascertain and assess the damages to his property by reason of the opening, reconstruction, relocation and improvement of State highway known as Route No. 332. Report of the viewers was duly filed April 18, 1928, awarding damages to said Kauffman. On May 18, 1928, the county commissioners presented their appeal in regular form, demanding a jury trial, to Henry C. Niles, President Judge, at chambers. The president judge made the following order: “May 18, 1928, the within appeal to the Court of Common Pleas is allowed and ordered filed. Henry C. Niles, P. J.” The appeal allowed by the president judge was not delivered to the clerk until after the expiration of the thirty-day period. The petition to strike off the appeal was filed July 16, 1928, upon which rule was granted as above indicated. An answer was filed to this rule by the county commissioners on Aug. 6, 1928.

By agreement of counsel, the argument on petition and answer was limited to the second exception filed, to wit: “Second, Because if such right of appeal does exist, said appeal of the board of county commissioners in this ease has not been taken, perfected and filed within thirty days after the filing of said report; and the allowance thereof nunc pro tunc will work irreparable injury to your petitioner and deny him the protection of the laws of this Commonwealth.”

Appeals from reports of viewers are now regulated by the Act of May 10, 1921, P. L. 428, which provides: “That in all proceedings before viewers for the assessment of damages . . . when the report of viewers has been filed in court, it shall be the duty of such court to confirm such report absolutely at the expiration of thirty days after the filing thereof . . . unless an appeal from such report, or any portion thereof, is taken, and demand for a jury trial is made before the expiration of such period of thirty days by any such party interested.” It is to be noticed that the act is silent on the manner of filing the appeal. The court might have provided by rule how such an appeal might be taken and filed, but there is no rule of court on this subject. The only qualification under the act is that appeals must be taken within thirty days after the filing of the report of viewers. In the instant case, this was done by the presentation of the appeal to the president judge within the thirty-day period.

This is not a case of the court attempting to enlarge the time of taking the appeal beyond the thirty-day period, as provided by act of assembly. It presents the sole question of whether the order of the court allowing the appeal and ordering it filed within the statutory period was a taking of an appeal by the county commissioners.

It is significant to bear in mind that the act provides for final confirmation of such report of viewers at the expiration of thirty days after the filing thereof, in the absence of exceptions or appeal within said statutory period. The report of the viewers has not been finally confirmed. The president judge of this court having allowed an appeal, it seems to follow that any action on the part of the petitioner for final confirmation of the report of viewers would be fruitless, due to the knowledge that the court had that it had allowed an appeal. Is the allowance of the appeal by the court to be stricken off simply because its messenger (in this instance, the solicitor-for the county commissioners) failed to deliver said appeal to the clerk until after the expiration of the thirty-day period? It seems to us that to ask this question is to answer it in the negative. In addition, the rights of the petitioner will not be prejudiced, as he has the right to present his claim for damages to a jury. We, therefore, hold that an appeal was taken by the county commissioners within the time prescribed by law, even though said appeal was not actually delivered to the clerk within the thirty-day period.

And now, to wit, Oct. 22, 1928, the rule to show cause why the appeal of the county commissioners from the report of viewers, in No. 1 of January Sessions, 1928, issued July 16, 1928, should not be stricken off is discharged, at the cost of the petitioner. Exception granted to the petitioner.

From Richard E. Cochran, York, Pa.


author: Ferguson, P. J.,

text:
    Frazier et al. v. Berg.

      Barnes, Brinton & Biddle, for plaintiffs.

      Levinthal, Schofield & Kraus, for defendant.
    Dec. 31, 1928.
   Ferguson, P. J.,

Plaintiffs were mortgagees who were obliged to foreclose their mortgage on certain real estate on 12th Street, above Walnut Street, Philadelphia, and to buy the property in at sheriff’s sale. The sale was had on Oct. 1, 1928, and, after taking title, plaintiffs were obliged to pay city and school taxes assessed against the premises for the years 1927 and 1928, amounting in all to $24,038.12, and also $73.45 for water rent.

The premises had been conveyed to defendant in July, 1926, and title remained in him up until the time of the sheriff's sale. Plaintiffs have brought suit against defendant for the amount paid in taxes and water rent.

In brief, the defense is that defendant took the bare record title as representative for the Finance Company of New Jersey, which company was the real owner; that the consideration for the purchase of the property was furnished by that corporation and it exercised full control and ownership and received and enjoyed the rents; and that defendant did not assume the performance of any duties in reference to the property other than to hold the bare record title.

The statement of claim does not aver that the taxes were assessed against the property in the name of Berg, but that is not important. The policy of the law is to make the owner of the land at the time the taxes are assessed liable for the payment thereof: King v. Building Ass’n, 106 Pa. 165.

The affidavit of defense is very much like the one filed in Bergdoll v. Pitts, 41 Pa. Superior Ct. 257, which was held to be insufficient. The person who holds title is presumably the owner. Defendant here says he took the bare legal title as representative for a corporation. Just what the word “representative” means is not disclosed, and what rights, duties and obligations are covered by its use are matters purely speculative. It is á mere conclusion without revealing the facts on which it is based. The averment that the finance company was the real owner is also a conclusion. It is unimportant who paid the consideration for the property, because the time of purchase is not given and many things may have happened after the purchase. That the finance company exercised control and collected the rents may be true, and at the same time these facts may be consistent with an interest in defendant in the property. Neither does it help the defendant to assert that he did not assume the performance ,of any of the duties in reference to the property other than to hold the title. The whole affidavit is vague, indefinite and lacking in frankness. If there was a declaration of trust, it is not disclosed; neither is it explained why defendant held title or when or under what circumstances he was to surrender it. We think the affidavit with respect to taxes is insufficient.

As to the claim for water rent, our attention is called to the fact that in Theobald v. Sylvester, 27 Pa. Superior Ct. 362, it was held an action against an owner for unpaid water rents could not be sustained unless the owner was legally and personally responsible for the payment. Subsequently, however, by Act of April 4, 1907, P. L. 40, it was provided that municipalities might proceed for the recovery or collection of any municipal claim or claims whatsoever by lien or by action of assumpsit. By the Act of June 4, 1901, P. L. 364, it was provided that the words “municipal claims,” as used in that act, meant claims filed to recover water rates. Therefore, if there was a personal obligation upon the owner of the property which could have been enforced by an action of assumpsit, the liability of the owner of the property for water rents is the same as that for taxes, and he is bound to pay to a purchaser at sheriff’s sale who pays the water rents the amount of such payment. The decision in Theobald v. Sylvester, supra, is followed in O’Donnell v. Neely, 66 Pa. Superior Ct. 351, but the matter is not discussed, and we assume the passage of the Act of 1907 was not brought to the attention of the court at that time. The rule for judgment is made absolute.


author: Fleming, P. J.,

text:
    Latrobe Hunting and Fishing Club, Limited, et al. v. Decker.

      Ellis S. Orvis, W. D. Zerby and A. C. Dale, for plaintiff.

      W. G. Runkle, N. B. Spangler and Ivan Walker, for defendant.
    Aug. 9, 1928.
   Fleming, P. J.,

This is a bill in equity to compel the defendant to convey to plaintiff certain real estate pursuant to an alleged agreement in writing. For reason stated in Beaver et al. v. Weaver et al., No. 1, September Term, 1926, Sitting in Equity, we proceed with the disposition of this matter as if originally heard before us, in order that a strict compliance with the Equity Rules may be had.

I.Statement of pleadings and issues raised thereby.

1. On Sept. 26, 1925, plaintiff’s bill in equity was filed, which was served on defendant on Oct. 6, 1925.

2. On Oct. 23, 1925, the court granted defendant’s petition that certain information necessary to enable him to answer plaintiff’s bill be furnished him.

3. On Jan. 18, 1926, by agreement of counsel and permission of the court, the time for filing answer to plaintiff’s bill was extended to Jan. 28, 1926.

4. On Jan. 28, 1926, defendant’s answer was filed.

5. On Feb. 13, 1926, an amendment to plaintiff’s bill was filed.

6. On Feb. 26, 1926, a motion to strike off plaintiff’s amendment was filed, and the court ordered that a period of ten days from the determination of the questions raised be allowed for filing further answer.

7. On July 16, 1926, amendment to plaintiff’s bill was allowed to be filed nunc pro tunc, and motion to strike off such amendment was overruled and refused.

8. On April 2, 1928, rule on defendant was allowed, directing him to show cause why amendments to the prayer of plaintiff’s bill should not be allowed.

9. The issues raised by the above pleadings are: (a) Can defendant be compelled to convey the land in question to plaintiff, it being a voluntary association? (b) Can a trustee be raised to complete such conveyance, should the first issue be decided in the affirmative?

We adopt, in the main, the findings of fact of our immediate predecessor, they appearing to be right and proper and no requests for specific findings of fact having been submitted to us by any of the parties for disposition. We, therefore, reach the following

II. Finding of fact.

1. The Latrobe Hunting and Fishing Club, Limited, is the plaintiff in this case.

2. That John D. Decker, who was the original defendant in this case, died Oct. 19, 1927.

3. That Logan M. Decker, administrator of John D. Decker, deceased, has been, substituted as defendant in this case.

4. That George H. Martin and O. E. Gangaware, as managers and agents, acted for the Latrobe Hunting and Fishing Club, Limited.

5. That on Oct. 20, 1921, John D. Decker entered into an article of agreement to convey 700 acres of land, more or less, lying in Potter Township, Centre County, Pennsylvania, to the Latrobe Hunting and Fishing Club, Limited, with certain provisions set forth in Exhibit “A,” filed as part of plaintiff’s bill in equity, and that the said Martin and Gangaware executed the agreement as managers or agents of the said the Latrobe Hunting and Fishing Club, Limited.

6. That John D. Decker formally acknowledged the above referred to agreement before Frank A. Carson, a justice of the peace in and for said County of Centre, on Oct. 20, 1921.

7. That the Latrobe Hunting and Fishing Club, Limited, is not an incorporated body, and that nothing in the record shows that they were a limited partnership under the acts of assembly.

8. That the Latrobe Hunting and Fishing Club, Limited, was a name assumed by an unknown number of individuals at the time of the execution of the agreement.

9. That no trustee or trustees were named for such club or association.

10. That sixteen persons, designating themselves as “The Latrobe Hunting and Fishing Club, Limited,” on Feb. 25, 1925, signed a fictitious name certificate, as provided by statute, and filed such certificate in the office of the Prothonotary of Centre County on April 9, 1925, naming therein O. E. Gangaware, of Latrobe, Pennsylvania, as agent through whom business was to be carried on in Centre County.

11. That the said the Latrobe Hunting and Fishing Club, Limited, is not a religious, charitable, literary or scientific association.

12. That a deed was caused to be prepared by the plaintiff and submitted to the defendant for execution, dated Nov. 29, 1921, in which Charles Kahl, of Latrobe, Westmoreland County, Pennsylvania, Trustee of the Latrobe Commercial Hunting Club of Latrobe, Westmoreland County, Pennsylvania, is designated as being selected as such trustee by a vote of the entire club.

13. That there is nothing in the record to show any attempt to transfer from the Latrobe Hunting and Fishing Club to either Kahl or Latrobe Commercial Hunting Club of Latrobe.

14. That an answer was filed under Equity Rule 48, providing for the raising of preliminary objections to the bill filed, but such were never pressed.

15. No testimony was taken in this case.

III. Discussion.

After careful consideration of this matter, we are convinced that our immediate predecessor erred in no manner in his disposition of this case. We fully concur in his logic and see in the authorities cited the exact rule governing this matter.

We have been asked in this matter to permit the plaintiff to amend the prayer of its bill by inserting a request for the appointment of Charles Kahl, of Latrobe, Westmoreland County, Pennsylvania, as trustee for the Latrobe Hunting and Fishing Club, Limited, or should we otherwise elect, for the appointment of a trustee or trustees other than the said Charles Kahl. We are also asked to direct that such trustee or trustees be appointed to receive the vendor’s conveyance of sale and that such conveyance be authorized.

Without entering into a discussion of the rights of the plaintiff to be allowed to amend as prayed for, we are of the opinion that we would be without jurisdiction, in the absence of a trust device, to raise a trustee for the purposes of the plaintiff in this case, even though such amendments were to be allowed. It must be borne in mind that the Latrobe Hunting and Fishing Club, Limited, is not an organization formed for a religious or charitable purpose. It is but a voluntary association formed for the purpose of advancing the recreational interests of its members and possibly for the development of wild life and the enforcement of the game laws as incident to the enjoyment of the members. The agreement originally entered into was with the Latrobe Hunting and Fishing Club, Limited, by George H. Martin and O. E. Gangaware as “managers or agents.” There is nothing which can be interpreted here as a “trust device.” It was the voluntary association which was attempting to contract and which now seeks to receive a conveyance in land — a thing which is legally impossible. The addition of the words “managers or agents” are not sufficient to imply a trust. To do so would require too broad inference.

The Superior Court, in Hawk et al. v. Hawk et al., 88 Pa. Superior Ct. 581, very clearly and emphatically affirms the rule laid down by Judge Bailey, of the Huntingdon County courts, wherein he states: “The defendants are not an association protected by section 10 of the Act of April 26, 1855, P. L. 328, 331. A grant to an organization of this sort is a grant to no one: Frazier v. St. Luke’s Church, 147 Pa. 256, 261. ‘The objections at common law to a voluntary association’s taking title to real estate or to a permanent fund are so nearly* insurmountable that there is very great uniformity in the rulings that, in the absence of some trust device, a conveyance to such association of such property is void:’ 5 Ruling Case Law, 313.”

In the instant case it is clear that the plaintiff is not protected by section 10 of the Act of April 26, 1855, P. L. 328, applying to dispositions of property made to religious and charitable, literary or scientific uses and conferring jurisdiction upon courts having equity jurisdiction to supply a trustee to prevent a failure of the purpose of such disposition. It is also clear that no trust device is present. Consequently, to direct a conveyance would be entirely contrary to the established rule.

Our immediate predecessor has quite aptly and correctly said that had the plaintiff refused to pay the consideration money, it is highly improbable that the defendant could have recovered any money on the confession of judgment set forth in the agreement, and that it would be a violation of the cardinal principles of equity to compel specific performance under such circumstances. We, therefore, reach the following

Conclusions of law.

1. That no trust device being present, a trustee cannot be supplied to complete a conveyance to the plaintiff by the defendant.

2. That being a voluntary association not formed for religious, charitable, literary or scientific purposes, the plaintiff is incapable of receiving title to real estate.

3. That the rule to show cause why plaintiff’s bill should not be amended as to the prayer thereof should be dismissed.

4. That the bill should be dismissed.

Decree nisi.

And now, Aug. 9, 1928, upon consideration of the foregoing case, it is ordered, adjudged and decreed that the rule to show cause why plaintiff’s bill should not be amended as to the prayer thereof be dismissed, and it is further ordered, adjudged and decreed that the plaintiff’s bill be dismissed, at the costs of the plaintiff. The prothonotary is directed to give notice to the parties, or their counsel of record, of the entry of this decree nisi, and unless exceptions are filed within ten days, this decree shall be entered as the final decree by the prothonotary as of course.

From S. D. Gettig, Bellefonte, Pa.


author: Niles, P. J.,

text:
    Reichard v. Atwood Fire Insurance Company.

      Stewart & Gerber, for plaintiff.

      George S. Love and Horace Michener Schell, for defendant.
    June 15, 1928.
   Niles, P. J.,

Sept. 13, 1928, the above-entitled action was on the same trial list with three other cases by the same plaintiff against other insurance companies, and by agreement of counsel the outcome is to determine the liability in the four cases.

The property insured was the buildings and plaintiff’s stock of tobacco, cigars and other property therein located.

A fire occurred in one of the buildings Sept. 9, 1925, and the actions were brought against the various companies for damage to building and contents.

The total insurance carried was $64,000 on buildings and $109,745.45 on contents.

Plaintiff claimed a loss on the building of $341.66, and on contents over $109,000.

At the end of the trial, with the approval of counsel on both sides, the jury was asked, in addition to the regular verdict, to answer certain pertinent questions regarding their conclusions' from the evidence.

The first question was: “What was the market value immediately before the fire of Sept. 9, 1925, of the insured tobacco, cigars, &c., which plaintiff claims were damaged?” The jury’s answer to this was: $116,374.09.”

The second question was: “What was the value of what remained of the same personal property after the fire?” To which the answer was: “$108,-374.09.”

The third question was: “What was the loss on the contents of the building by reason of the fire?” To which the answer was: $8,000.00.”

The fourth question was: “What is your verdict?” To which the answer was: “For plaintiff.”

“If you find a verdict for the plaintiff, it should be for at least the admitted damage to the buildings, $26.69, plus 5/162 of the figure given as your answer to the third question.” To which the jury gave an answer, $246.91. Total, $273.60. With interest from Dec. 27, 1925, to Sept. 17, 1926, $12.31. A total verdict in favor of the plaintiff and against the defendant of $285.91.

Sept. 20, 1926, plaintiff made a motion for a new trial with only formal exceptions, without specification, that the verdict was against the law and the evidence and the weight of the evidence; that the court erred in its charge to the jury and in rejecting testimony offered by the plaintiff, and admitting testimony offered by the defendant against the objection and exception of the plaintiff.

June 4, 1928, additional reasons were filed on behalf of the plaintiff, based upon the assertion that since the trial of this case in this court, in which the total loss was found by the jury to be $8000, in another case of John F. Reichard v. Atwood Fire Insurance Co., No. 45, April Term, 1926, originally in this court and removed to the United States Court for the Middle District of Pennsylvania, involving the same fire and the same loss; the jury trying the last-mentioned case rendered a verdict finding the same loss to have been $35,000. That the motion for a new trial was withdrawn and judgment entered in the United States District Court in favor of the plaintiff, based upon the finding by the jury in that court that plaintiff’s loss was $35,000. That the trial in the United States District Court covered seven other cases removed to that court from this court, and, according to agreement of parties, the order of the court was determined by the final result in the Atwood case. And that the defendants in those eight cases are now preparing to pay in accordance with the verdict in the case tried in the United States District Court.

These additional reasons were urged as persuasive evidence that the verdict found in this court is not a just verdiet and should be set aside.

The result of the trial in the United States District Court does not seem to this court persuasive in our consideration of the motion for new trial here.

It is no more probable that the verdict upon the evidence in this court was less than it should have been, than that the verdict in the United States District Court upon the evidence there produced was more than it should have been.

The action of this court necessarily must be governed by our best judgment upon a review of the record as it stands here, in the light of the arguments of the able and industrious counsel on both sides.

Upon such review, we are not convinced that the verdict of the jury in this case here was against the law or the evidence, or the weight of the evidence.

As to the formal objections that the court erred in its charge and direction to the jury, and in its rulings upon offered testimony, although not specified in any of the reasons filed, certain criticisms at the argument were made by counsel for the plaintiff to which the court in banc has given attention.

We are not convinced of any error committed by the trial judge in the admission or rejection of testimony, and a suggestion of undue emphasis in the charge upon some of the evidence as prejudicial to the plaintiff appears, upon examination of the whole charge, to be unsubstantial.

At the end of the charge, counsel for plaintiff asked for a general exception, which was allowed, with the right to file specifications, the judge saying: “Except that anything that I have omitted to charge upon, or any objection of that sort, ought to be stated now.” To which Judge Stewart, of counsel for the plaintiff, replied: “I have nothing of that kind in mind.”

All of the reasons offered in support of the motion for a new trial are without substantial merit.

And now, to wit, June 15, 1928, the rule granted Sept. 20, 1926, is discharged, the motion for new trial and in arrest of judgment is refused, and judgment is entered in favor of the plaintiff and against the defendant for $285.91, with interest from Sept. 17, 1926, in accordance with the verdict, with costs, upon payment of the jury fee.

From Richard E. Cochran, York, Pa.


author: Stewart, P. J.,

text:
    Commonwealth ex rel. Tamburro v. Bentz.

      Frank P. McCluskey, for relator.

      Bussell C. Maueh, District Attorney, and George W. Geiser, for Commonwealth.
    Oct. 5, 1928.
   Stewart, P. J.,

On Aug. —, 1928, the relator was committed to Northampton County Prison on a warrant issued by an alderman of the City of Easton, charging him with murder. On Sept. 8, 1928, upon his petition, a writ of habeas corpus from this court was allowed, and S.ept. 14th was fixed for a hearing. At the hearing, the district attorney moved for the dismissal of the writ on the ground that it had been issued by this court within fifteen days of the term of our Court of Oyer and Terminer. We allowed that motion on the authority of Com. v. The Sheriff, 7 W. & S. 108, and Clark v. Com., 123 Pa. 555. On Sept. 28, 1928, upon his petition, another writ of habeas corpus from this court was allowed, and Oct. 2nd was fixed for a hearing. Upon this hearing, the district attorney moved to dismiss this second writ. We heard argument upon the motion and reserved our decision, and fixed Oct. 5th for a further hearing. The learned district attorney’s reasons were:

First. That the grand jury had, on Sept. 12, 1928, found a true bill against the relator. His contention was that the finding of the bill makes out a prima facie case of guilt against the relator, and he cited the opinion of President Judge Arnold in Com. v. McCarthy, 11 Dist. R. 161. That learned judge said: “The purpose of a hearing on a writ of habeas corpus is to determine a fact— whether there is a prima facie case of guilt shown against the prisoner — and the hearing before the grand jury is had to determine the same fact. Both hearings are ex parte, and a prisoner may be remanded for trial, or a bill of indictment may be found against him after hearing only one witness without requiring the testimony of all the witnesses to be taken. In both hearings, the doubts are resolved in favor of the Commonwealth; the prisoner does not get the benefit of a doubt until the case is being tried before the petit jury. If the judge, on the hearing on the habeas corpus, finds the fact in favor of the prisoner, the grand jury is bound by his finding, and when the grand jury finds the fact against the prisoner, the judge should defer to their finding, as the grand jury is a constituent part of the court as much as the judge is. In so important a matter as a charge of murder, the court should proceed with great caution, not only to conserve the interest of the prisoner, but also the interest of the people at large; for it must be remembered that if a prisoner charged with the crime of murder is discharged on habeas corpus, it is a final discharge and the defendant cannot be rearrested for the same offense: Com. v. McBride, 2 Brewster, 545.” We have the highest respect for the opinion of Judge Arnold, and if we could conscientiously follow it, we would do so. However, our view is not the same. It is true that the defendant’s case is not heard either by a grand jury or by a court upon a hearing such as this. Each of the proceedings is one-sided, and each of them ends when a prima facie case is made out. In Com. v. Shortall, 206 Pa. 165, Mr. Justice Mitchell said (page 178) : “This court, either sitting as a committing magistrate or by virtue of its supervisory jurisdiction over the proceedings of all subordinate tribunals (Gosline v. Place, 32 Pa. 520), has the authority and the duty, on habeas corpus in favor of a prisoner held on a criminal charge, to see that at least a prima facie case of guilt is supported by the evidence against him.” That is the object of each proceeding, but a grand jury acts entirely independently of the defendant. The indictment is laid before it without a consultation with the defendant or his counsel, and the proceedings are to a certain extent under the control of the district attorney. In a habeas corpus, the defendant in the indictment is the relator in the proceeding. His allegation is that he is unjustly detained in prison, and while that allegation calls upon the district attorney to make out his prima facie case, it must be done before a tribunal that is entirely different from a grand jury. In the present case the indictment exhibited by the district attorney contains the name of but one witness, George J. Ryan, the county detective. The bill necessarily must have been found upon his testimony alone. The district attorney admitted that he was not an eye-witness, and did not allege that the defendant had made a confession to the county detective. The learned counsel for the defendant at once moved to quash the indictment for the reason that it was found on improper testimony or that there was no testimony at all before the grand jury to base an indictment on. That motion is pending in the Court of Oyer and Terminer, and we express no opinion on it, but in this particular case we do not think the rule laid down by Judge Arnold applies. Therefore, in all cases we do not think that simply because a grand jury has determined that there is a prima, facie case against a defendant “the judge should defer to their finding.” Another reason is that if the view of the learned district attorney is a correct one, the simple presentation of a bill of indictment charging murder would bar all inquiry into the question whether it was murder of the first degree or murder of the second degree. In Pennsylvania the indictment never charges the degree of murder, and yet murder in the second degree is bailable, and frequently the inquiry upon habeas corpus is to determine whether the defendant should be allowed to enter bail. This view of the matter is well set forth by President Judge Lindsay in Com. v. Lemley, 2 Pitts. Reps. 362, the syllabus of which is: “In Pennsylvania a prisoner charged with a capital offense has a constito tional right, even after indictment found, to be admitted to bail where th< evidence produced on the hearing satisfies the judge to whom the application is made that the offense is not capital.”

The second reason of the district attorney is that the relator has waived his right to a writ of habeas corpus. It appears that a complaint was made before the alderman charging relator with murder and warrant was issued. Learning of the warrant, he went to the office of his counsel and counsel ’phoned to the officer who had the warrant, and he arrested relator and committed him to prison. Relator has never demanded a hearing before the alderman, nor does the record show that he has waived a hearing. His first proceeding was the petition above referred to of Sept. 8th, which was dismissed for legal reasons. It is true a party may waive his right to have a hearing on a writ of habeas corpus. In Com. ex rel. v. Walton, 1 Northamp. Co. Repr. 289, the syllabus is: “Where the accused has waived a hearing and given bail to appear at court, but is subsequently surrendered up, the court will not go into the merits of the case on a habeas corpus proceeding unless satisfied that he could not procure bail and would be unjustly detained.” In Com. v. Doran, 4 Northamp. Co. Repr. 307, the syllabus is: “A writ of habeas corpus having been granted on the petition of a defendant representing that he was in the custody of a constable under a commitment, and it appearing at the hearing that the constable, instead of serving the commitment, allowed the defendant to go about his business, the writ was dismissed.” In Com. ex rel. Reeder v. Fenicle, 6 Northamp. Co. Repr. 94, the syllabus is: “No hearing can be had upon a writ of habeas corpus in advance of trial if the petitioner is under bail and voluntarily procures himself to be surrendered for the purpose of applying for release.” In the last case, Judge Scott shows that the rule is a well settled one. We propose to follow these decisions in a proper case, but this relator has done nothing to waive any of his rights. This rule is founded on the doctrine of waiver. In this case, the relator first applied for his writ of habeas corpus before the indictment was laid before the grand jury, and he is not to be prejudiced in this respect because that writ was dismissed on technical grounds. Where a party has knowledge that an officer has a warrant for his arrest, he is not bound to conceal himself until the officer finds him, and a voluntary surrender to arrest is not similar to a collusive surrender of a defendant by bail simply for the purpose of procuring a writ of habeas corpus.

And now, Oct. 5, 1928, motion to dismiss writ is denied.

From Henry D. Maxwell, Easton, Pa.


author:
Thompson, J.,
      Van Dusen, J.,

text:
    Kubitza’s Estate.

      Joseph Gross, for exceptions; William M. Boenning, contra.
    April 5, 1929.
   Thompson, J.,

The decedent, John Kubitza (also known as John Kubica), died Dec. 7, 1926, intestate, leaving a wife and children. At the audit of his administratrix’s account in December, 1928, a dispute arose as to the ownership of a fund of $366.47, which the administratrix did not include in her inventory or in her account, but which counsel for the administratrix stated had been handed to him that morning in court, and he asked that the accountant be surcharged therewith, there being two rival claimants for said fund, one the Nicetown Mutual Loan and Savings Association and the other Ideal Plan, Inc.

As we are of the opinion that we have no jurisdiction to determine the merits of the claims of the respective claimants, it is necessary to state the facts as revealed by the testimony, which we will do chronologically as follows:

1. On or about Aug. 22, 1924, the decedent borrowed from the Broad and Erie Building and Loan Association the sum of $3400, giving as security therefor a mortgage of that date, recorded Sept. 4, 1924, in Mortgage Book J. M. H., No. 3972, page 510, upon premises Nos. 3439-41-43 North Tenth Street, Philadelphia, and also assigned to said association as additional security seventeen shares of the stock of said association. This association had each borrowing stockholder sign a book in which the assignment was set forth, which read, in part, as follows:

“Appropriating the payments which have been made or which may be made upon said stock. . . . That all the money heretofore paid or hereafter to be paid by us respectively unto said association upon such shares of stock shall be taken and considered as being appropriated as payments on and in liquidation of said loans upon shares of stock as evidenced by the aforesaid bonds and mortgages.”

On April 1,1927, proceedings were started by the Broad and Erie Building and Loan Association to foreclose said mortgage, with the result that on May 9,1927, judgment was entered against the defendant, the decedent herein, and damages assessed at $3683.69, without deducting the value of the stock which the decedent had assigned to the association, and the property sold by the sheriff on the first Monday of June, 1927, for the sum of $4000. When the Broad and Erie Building and Loan Association made settlement with the sheriff, after deducting the costs of sale and other charges, they received a sum less than the amount which was due them. Thereupon the building association deducted the balance due them from the value of the seventeen shares of stock which had been assigned to them, and the amount in dispute, to wit, $366.47, is the surplus remaining in the hands of the building association after their claim had been paid in full from the proceeds of the sale of the real estate and the value of the seventeen shares of stock assigned to them.

2. On Jan. 31, 1925, the Nicetown Mutual Loan and Savings Association entered a judgment against the decedent for $150, as of C. P. No. 1, March Term, 1925, No. 12578, upon which judgment damages were assessed May 6, 1927, in the sum of $338.25. The Nicetown Mutual Loan and Savings Association also entered a judgment against the decedent on May 2, 1925, as of C. P. No. 1, March Term, 1925, No. 12582, in the sum of $300. These two judgments were next in lien to the mortgage referred to in the preceding paragraph.

3. By assignment dated June 25, 1926, the decedent assigned to Ideal Plan, Inc., “all his right, title and interest to his shares of the capital stock of Broad and Erie Building and Loan Association, now standing in his name on the books of the Association, subject only to a prior transfer thereof to said Broad and Erie Building and Loan Association as security for mortgage loan of ($3400.00) Thirty-four Hundred Dollars, secured on premises Nos. 3439-41-43 N. 10th Street, Philadelphia, Pa.” Notice of this assignment was given to the Broad and Erie Building and Loan Association before the sheriff's sale referred to in paragraph one.

4. If the Broad and Erie Building and Loan Association in their assessment of damages in the above foreclosure of mortgage had credited defendant with the value of his stock, the amount of the judgment would necessarily have been reduced, and this would have resulted in there being a balance in the hands of the sheriff after the payment of the claim of the building association, which balance would have been distributable to the Nicetown Mutual Loan and Savings Association, the judgment creditor next in lien to the building and loan association mortgage.

5. The Auditing Judge acceded to the request of the administratrix for a surcharge, and surcharged her with the above-mentioned sum of $366.47, and awarded the same to the Nicetown Mutual Loan and Savings Association, to which action exceptions have been filed by Ideal Plan, Inc., and the same are now before us.

Prom the above, it clearly appears that the sum in controversy, to wit, $366.47, was not part of the decedent’s estate at the time of his death, in that the decedent, in June, 1926, six months prior to his death, had assigned the same to Ideal Plan, Inc., by an assignment absolute on its face, the bona fides of which has not been questioned.

If authority is needed for the conclusion herein reached that we have no jurisdiction to determine as between rival claimants, neither of whom is the estate of the decedent, the ownership of the above-mentioned fund of $366.47, reference is made to Williams’s Estate, 236 Pa. 259, and particularly Cutler’s Estate, 225 Pa. 167, therein referred to, in which it was said (page 269) : “The Orphans’ Court is a court of limited jurisdiction, exercising only such power as is given it by statute, expressly or by necessary implication. . . . The jurisdiction of the Orphans’ Court is limited to the estate of which the testator died seized. With respect to such estate, it has full jurisdiction; but this marks its ultimate limit. Whether a specific article of property belongs to the estate is a question standing in limine; if it does not, the executor is not accountable therefor, and it is beyond the power of the court to control it in any way or charge liability on any one in connection therewith. . . .”

The sum in dispute, to wit, $366.47, is hereby stricken from the adjudication, the awards of the Auditing Judge in respect thereto are set aside, and all exceptions relating to the action of the Auditing Judge in respect to said sum are dismissed.

The adjudication as herein modified is confirmed absolutely.

Van Dusen, J.,

dissenting. — As I understand Williams’s Estate, 236 Pa. 259, jurisdiction in the Orphans’ Court may arise out of ostensible ownership by the decedent at his death — saving the right of adverse claimants to a jury trial.

At the death of the decedent, the assignment of the building association stock had not been served on the association, and the sheriff’s sale had not turned land into money. There existed a right, apparently that of the decedent, to have the stock applied to his mortgage, and if it was not, to have it paid to him. On this right fasten the liens of the junior judgment creditor, and of the assignee, who later produced his assignment. The genuineness of the assignment was disputed. If there is jurisdiction of the subject-matter by reason of apparent ownership in the decedent, it is not ousted by the fact that one of the claimants, who sought the judgment of the court and asked no jury trial, sets up an adverse ownership in himself.

Stearne, J., did not sit.


author: Taulane, J.,

text:
    Metropolitan Trust Co. v. Real Estate-Land Title and Trust Co.

      W. H. Peace and R. M. Rosenwey, for plaintiff.

      Saul, Ewing, Remick & Saul, for defendant.
    March 27, 1929.
   Taulane, J.,

This is a rule for judgment for want of a sufficient affidavit of defense.

The defendant, by agreement dated June 14, 1924, undertook to finance a building'operation for Joseph R. Whelan and Joseph A. Whelan. The agreement provided that the Whelans should deposit from time to time, as requested by the. defendant, securities to secure the defendant for any sums due it under the agreement, and it authorized the defendant, in the event of the Whelans’ default, to sell, transfer and assign any such securities to reimburse it.

The Whelans caused to be conveyed to the defendant, as security under said agreement, premises No. 1626 Summer Street, subject to a mortgage of $15,000, held by the plaintiff. The defendant on April 1, 1926, conveyed the Summer Street premises, subject to plaintiff’s mortgage, to the Real Estate Finance and Guarantee Company. The plaintiff later foreclosed its mortgage, but the proceeds of the sheriff’s sale were insufficient to pay the plaintiff’s mortgage in full to the extent of $2964.62, caused by the sheriff’s payment out of the proceeds of sale of the taxes for 1925 and 1926, which the defendant neglected to pay while it held title.

The plaintiff sues to recover from the defendant the amount so applied by the sheriff to the payment of the taxes for 1925 and 1926, which would otherwise have been paid on account of plaintiff’s mortgage.

The affidavit,of defense alleges that the defendant was not the real owner; that it held title as security only under its agreement with the Whelans; that it was never in possession nor exercised any acts of ownership or received any of the rents; and that under a supplementary agreement with the Whelans it was stipulated that the defendant should not be obliged to pay taxes or interest on mortgages.

Ordinarily, the owner of mortgaged premises is liable to the mortgagee for his failure to pay the taxes assessed against the mortgaged premises during his ownership if the mortgagee is obliged to pay such taxes to protect his mortgage or if any part of the proceeds of the foreclosure sale, otherwise applicable to the payment of the mortgage, are applied to pay such taxes (Hogg v. Longstreth, 97 Pa. 255), but a holder of the mere legal title, without any interest in the mortgaged premises, is not liable for taxes, such as one in whom title is placed and who immediately thereafter reconveys or executes a declaration of trust to the real owner who neglects to record the instrument. (Rawle v. Renshaw, 15 Pa. Superior Ct. 488.)

Was the defendant such an owner as made it liable for the taxes? The defendant was more than the mere holder of the legal title. It had a most substantial interest. For all practical purposes, it was the owner. It could enter into possession, lease and collect the rents; and upon Whelans’ default it could convey, and it did convey to the Real Estate Finance and Guarantee Company. The defendant was certainly personally liable for the taxes, and it would have had no defense in a suit by the city for the taxes.

The agreement does not prohibit the defendant from collecting the rent, and it is well settled that a pledgee is entitled not only to the possession of pledged property, but he is also entitled to receive rent and income earned by the pledged property. (Colebrooke on Collateral Securities (2nd ed.), 485.)

The defendant’s interest in the mortgaged premises was not lessened by its failure to exercise its rights to possession and to the rents; therefore, it is immaterial that the defendant was never in possession or in receipt of rents. These rights the defendant voluntarily neglected to exercise. Without the supplemental agreement, the defendant would have been obliged to apply the rents in discharge of the taxes; the existence of such an agreement, therefore, in no way lessened the defendant’s interest in the mortgaged premises. To all intent and purpose, the defendant was the owner; until default by the Whelans, it could exercise every right of an owner except the right to sell, and upon Whelans’ default it could exercise that right. And what is more significant, the defendant did exercise its right to convey.

There is no merit in the defendant’s contention that it was the mere holder of the legal title without any interest in the mortgaged premises. We think this case is controlled by the case of Commonwealth National Bank v. Shoemaker, 13 W. N. C. 255.

The defendant alleges that the plaintiff had knowledge of the circumstances under which the defendant held title. If this be true, the character of the defendant’s interest in the mortgaged premises was in no way affected. We should observe, however, that the averment of notice, if material, is insufficient, for it does not show when the plaintiff acquired such knowledge, whether before or after the defendant’s failure to pay the taxes. (Meyercord v. Manufacturing Co., 85 Pa. Superior Ct. 33.)

The defendant knew it had failed to pay the taxes; it was bound to know that it would be liable to the mortgagee if the mortgage was foreclosed and the proceeds of sale were not sufficient to protect the mortgagee against the unpaid taxes.

The plaintiff was under no duty prior to the sheriff’s sale to search for taxes and notify the defendant of its default and the date of sale.

And now, to wit, March 27, 1929, the plaintiff’s rule for judgment for want of a sufficient affidavit of defense is made absolute.


author: Williams, P. J.,

text:
    Commonwealth v. Simmons.

      Frank X. Renninger, for Commonwealth.

      Theodore Lane Bean, for defendant.
    April 23, 1928.
   Williams, P. J.,

The district attorney should not have joined in asking that the prisoner be paroled because, in Com. v. Thomas, February Term, 1925, No. 34, at the time of refusing the application, we said:

“The Acts of June 19, 1911, P. L. 1055, generally known as the ‘Probation Act,’ and P. L. 1059, commonly called the ‘Parole Act,’ must be construed together with reference to the general system of which they form integral, although separate, parts. Particularly is this true in view of the fact that both statutes were enacted on the same day. In substance, even if not in form, the Parole Act is a supplement to the Probation Act. Hence, since by the terms of the Probation Act the court is powerless, in the first instance, to suspend the imposition of sentence upon one convicted of the crime of murder, the court is without power, also, later to parole such a convict.
“The belief, unfortunately only too generally accepted, that the court at discretion can parole in any case is fundamentally erroneous. To the contrary, the discretion of the court in the grant of paroles is only a judicial discretion, to be exercised solely in those cases in which it was the intention of the legislature the court should have the right to parole.
“The legislature never intended a murderer to be paroled. His crime involves legal malice, moral turpitude and heart wickedness. Men of good moral character do no murder. Men of bad character, if opportunity arise, are likely to repeat the offense. The power to make a general jail delivery of imprisoned Cains is not vested in the courts. See Com. v. Burr et al., 5 D. & C. 172-4 (1924), Cummins, J. (27th District, Washington County), and Com. v. Roberts, 6 D. & C. 342 (1924), Reno, P. J. (31st District, Lehigh County).”

And now, April 23, 1928, upon consideration of the foregoing case, it is ordered, adjudged and decreed as follows: The petition is dismissed.

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


author: Reno, P. J.,

text:
    Commonwealth v. Meyers.

      Francis J. Gildner, for petitioner; Robert H. Nor gang, for county.
    Nov. 23, 1928.
   Reno, P. J.,

The petitioner became bail for defendant, which was forfeited and the amount paid by petitioner to the.county. Subsequently, defendant was apprehended, convicted and sentenced. Petitioner prays for a refund.

Had application been made before the moneys were actually paid into the treasury, we would have granted relief under the Act of Dec. 9, 1783, § 2,

2 Sm. Laws, 84, by remitting or moderating the forfeiture. Or if the amount collected had been paid into court in pursuance of the Act of July 30, 1842, § 26, P. L. 454, we might have been able to decree a distribution that would have saved something for the petitioner. Even this is doubtful; for it appears that the court’s authority to distribute is limited to the items set forth in the statute (Com. v. Erdis, 19 Dis. R. 1), although in Com. v. Gaul, 2 Woodward, 70, it was suggested that relief might be afforded in the distribution proceedings.

But this fund is not in court and never was here. It was voluntarily paid by petitioner to the county and remains in “the county stock,” as an old act of the general assembly describes the treasury: Act of Sept. 23, 1791, § 11, 3 Sm. Laws, 43. And there it must remain, unless the petitioner can point to an act which expressly or by necessary implication authorizes us to order a refund: Wayne County v. Waller, 90 Pa. 99. Failing in that, his only recourse is evidence that “the Almighty has commanded it” (Richardson v. Clarion County, 14 Pa. 198, 200), but we have not found the statute nor heard the command.

Now, Nov. 13, 1928, petition refused and dismissed.

Prom Edwin L. Kohler, Allentown, Pa.


text:
    Goodwin’s Estate.

      John F. Whalen and R. P. Swank, for proponent.
    J. O. Adamson, for contestant.
    Nov. 5, 1928.
   Wilhelm, P. J.,

This is an appeal of John Goodwin from the decision of the register of wills admitting to probate a certain instrument or writing, dated September, 1922, alleged to be the last will and testament of Elizabeth Goodwin, deceased.

Testimony was taken in support -of the execution of the will, and, according to a decree entered March 7, 1927, the appeal was sustained, because it was found that the execution of the will was only proved by one competent witness, to wit, William Davidson, a grandson of the testatrix, and that the testimony of Jane Davidson, a subscribing witness to the will, was incompetent to establish its execution because of the mental condition of Jane Davidson at the time she appeared in court at the hearing on the appeal.

At the hearing, there was no claim that Jane Davidson was mentally incompetent to sign the will as a witness at the time of the execution of the will, and her mental incompetency developed, in so far as this record shows, between the time of the execution of the will and the hearing on the appeal, owing probably to her advanced age, she being about seventy years old.

The proponents of the will excepted to the decree of the court dated March 7, 1927, and on March 14, 1927, presented a petition to the court, asking permission to present further testimony in support of the execution of the will, and a rule was granted upon the appellant March 14, 1927, “to show cause why the decree sustaining the appeal should not be opened and proponent permitted to present further testimony.”

An answer was filed to said rule April 4, 1927, and on July 25, 1927, an order was made as follows: “The prayer of the petition is granted and the order dated March 7, 1927, is set aside for the purpose of taking further testimony.”

Accordingly, the proponents did present further testimony in support of the execution of the will. Charles P. Post testified that he is the teller of the Union National Bank at Mahanoy City; that he has been acquainted with Jane Davidson for ten or twelve years, who was a depositor in the Union National Bank; that he is acquainted with the signature of Jane Davidson, having seen her write her name on the depositor’s card required by the bank and also on two checks, which the witness had brought from the files of the bank, and his opinion was that the signature “Mrs. Jane Davidson” appearing upon the will was written by Jane Davidson, with whom he was acquainted, and whose signature appears upon the card and checks presented.

T. C. Knowles, a handwriting expert, who has been for years recognized as an authority on handwriting in the courts of this county, testified that he made a comparison of the established signatures of Jane Davidson upon the bank depositor’s card and the two checks which Teller Post identified as the signature of Jane Davidson, as well as the signature upon the will, and from this examination he is of the opinion that all of the said signatures were written by the same person.

The testimony of Teller Post and T. C. Knowles, the handwriting expert, competently proves that Jane Davidson signed the will as a witness.

The testimony of Frank Ball, who was register at the time the will was probated, and the testimony of William Davidson, the other witness to the will, are strongly corroborative of the fact that Jane Davidson signed the will as a witness, and the testimony of Dr. R. L. McDonald establishes the fact that the testatrix desired to dispose of her property in the manner in which the will was written. Therefore, the execution of the will by Elizabeth Goodwin has been proved by William Davidson, who was present at the time of its execution and by the proof of the signature of Jane Davidson, a subscribing witness to the will, and no testimony has been offered to show that the testatrix was mentally incompetent at the time of the making of the will, or that undue influence was used to procure its execution, and the appeal should be dismissed. The appeal is dismissed.

Prom M. M. Burke, Shenandoah, Pa.