author: Thomas, P. J.,

text:
    Gardener et al. v. Yackanicz.

      Conrad A. Falvello and C. A. Rogan, for plaintiffs.

      James M. Breslin and Andrew J. Hourigan, for defendant.
    May 31, 1930.
   Thomas, P. J.,

The plaintiff, Enrica Gardener, in her own right and as next friend of Adeline, Angelo, Arthur and Virginia Gardener, her minor children, brought an action of trespass against the defendant in the above court on July 31, 1929.

Prom the plaintiffs’ statement of claim the following facts appear:

That Enrica Gardener is the wife of Sylvester Gardener and resides with him and the above named minor children;

That on July 31, 1927, the defendant sold and delivered to the said husband, Sylvester Gardener, a pint of intoxicating liquor, viz., whiskey, for beverage purposes, containing more than one-half of 1 per cent, of alcohol by volume; that the whiskey so sold was in fact an adulterated, poisonous, deleterious and dangerous concoction; that on the day of the purchase the said husband drank a small quantity of said liquor and as a consequence he became intoxicated and was rendered permanently disabled, both mentally and physically, to wit, he has an impairment of speech, his sight is defective, he has intermittent periods of insanity and mental aberration, he is nervous, irritable, absent-minded and subject to dizziness;

That by reason of such aberration and dizziness he sustained an accident at his work on April 19, 1928;

That the plaintiffs were entirely dependent for their support upon the wage earnings of the said husband and father, and that previous to July 31, 1927, he was in good health mentally and physically, a steady worker and liberal provider and maintained and supported his family, and that as a result of drinking said liquor he is unable to perform work of any kind and the family is denied means of support. Damages for such are, therefore, claimed.

The defendant filed an affidavit of defense raising questions of law to the effect that the plaintiffs’ statement shows no cause of action.

One of the plaintiffs’ contentions is that section 3 of the Act of May 8, 1854, P. L. 663, of the State of Pennsylvania, which reads as follows, “Any person furnishing intoxicating drinks to any other person in violation of any existing law, or of the provisions of this act, shall be held civilly responsible for any injury to person or property in consequence of such furnishing, and any one aggrieved may recover full damages against such person so furnishing by action on the case, instituted in any court having jurisdiction of such form of action in this Commonwealth” gives to them a right of action.

This contention has been answered in the case of Bradford v. Boley, 167 Pa. 506, wherein it is held that the wife may, by virtue of the provisions of the said act, maintain a suit against the defendant for an injury to her person or property in consequence of his unlawful neglect, but it does not expressly or by necessary implication give her an action for an injury to the person or property of her husband. Is her interest in his earning power “property” within the meaning of the statute? Does it give her an action for an injury to him which for a time impairs or prevents the exercise of this power? These questions are in said case answered in the negative.

“That the legislature may give her an action for an injury which impairs his earning power and thereby partially deprives her of the support he should afford her, is not denied, but that it has done or intended to do so in the statute we are considering is not apparent.”

“It may be affirmed as a general proposition that the right of action for an injury to person or property is in the party whose person or property is injured, and that the statute which gives to another person an action for the consequences of such injury must do so in plain terms or by necessary implication. It is a strained and unjustifiable construction of the act in question which allows a wife in the lifetime of her husband tp maintain a suit for an injury to his person which diminishes his capacity for labor:” Bradford v. Boley, supra.

The plaintiffs further contend that section 20, title II, of the National Prohibition Act gives them a right of action. This section reads as follows: “Any person who shall be injured in . . . means of support ... by the reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawfully selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication, and in any such action such persofi shall have a right to recover actual and exemplary damages. . . .”

This court has jurisdiction in an action for damages under said section: Smithers v. Brunkhorst, 190 N. W. 349.

In the statement of claim there appear two causes of action; one cause arises from the unintentional drinking of poison by the husband, furnished either knowingly or negligently by the defendant, purporting to sell him liquor fit for beverage purposes and harmful only because of its alcoholic content. Can the wife and minor children by a separate action recover the means of support under such facts?

The word “liquor” is defined in section 4, chapter 1, of the National Prohibition Act as follows:

“The word ‘liquor’ or the phrase ‘intoxicating liquor’ shall be construed to include alcohol, brandy, whiskey, rum, gin, beer, ale, porter and wine, and in addition thereto, any spirituous, vinous, malt or fermented liquor, liquids and compounds, whether medicated, proprietary, patented, or not, and by whatever name called, containing one-half of 1 per centum or more of alcohol by volume which are fit for use for beverage purposes.”

If the liquor sold by the defendant to the plaintiff was not “fit for beverage purposes,” it was not such liquor or intoxicating liquor, the sale of which is prohibited by the National Prohibition Act, and the plaintiffs could not have a remedy under said section 20 of said act. The sale not being illegal, damages can be recovered only by the husband for common-law negligence.

Where the husband is given poison to drink instead of a beverage, the wife would have no cause of action for such injury done to her husband, who is still living, nor for the loss of his wages sustained by her in a common-law action: 21 Cyc., 1530 (v); 30 Corpus Juris, § 693, page 973.

The husband having the right to recover damages (Dolan v. Burke, 89 Pa. Superior Ct. 295), double compensation could be exacted from the same defendant if the wife was allowed a separate action: 30 Corpus Juris, § 693, note (b)-Q2.

The statement also discloses from facts and the inferences to be drawn therefrom that the other cause of action arises from the sale of whiskey fit for beverage purposes of an alcoholic content prohibited by the National Prohibition Act, by which the husband became intoxicated and was damaged. For such a cause the wife and minor children have an action in damages for injuries to means of support under the Volstead Act: 33 Corpus Juris, 639, § 299. The husband has no right of action: Dolan v. Burke, supra.

The plaintiffs have, therefore, alleged two states of the ease, in one of which the defendant is not liable and in the other the defendant is liable. Such pleading is bad: 49 Corpus Juris, 138, § 141.

The defendant also raised the question that the mine accident happening to the husband on April 19, 1928, and the alleged negligence of the defendant having taken place on July 31, 1927, the time is too remote and speculative as the basis for damages. No succession of facts and circumstances are linked together so as to produce such an expected result and the said injury is not the natural and probable consequence of said negligence as should have been foreseen by the defendant: Hoag & Alger v. Lake Shore & Michigan Southern R. R. Co., 85 Pa. 293.

If this was the only damage alleged, the court would find in favor of the defendant.

The plaintiffs, however, allege in paragraph 11 of their statement of claim that by reason of the drinking of said intoxicating liquor on July 31, 1927, sold by defendant as in paragraph 8 set forth, her husband became intoxicated and was rendered permanently disabled and details in what manner. This is a sufficient allegation as to damages.

Liberally construing the sections of the National Prohibition Act, and being of the opinion, therefore, that the statement of claim does not conform to good pleading, and in view of the authority conferred by the Practice Act upon the court to make such order as may be just, it seems proper to treat the demurrer as in effect a motion to strike off the statement.

Now, to wit, May 31, 1930, it is ordered and decreed that the plaintiffs’ statement of claim be and the same is stricken from the record, with leave to the plaintiffs to file within fifteen days from this date a new statement of claim. Prom Jacob C. Loose, Mauch Chunk, Pa.


source: Caselaw Access Project

author: Leach, J.,

license: Public Domain

text:
    Carbondale School District Audit.

      T. A. Garvey, for exceptions; M. J. Kolansky, contra.
    June 23, 1930.
   Leach, J.,

Exceptions to auditor’s bill for auditing the accounts of the school district for year ending June 30, 1929.

The bill of the auditor, the Controller of the City of Carbondale, for auditing the affairs of the school district, which is a third class district, is as follows:

Personal service, thirty days @ $5........................$150.00
One assistant, thirty days @ $5........................... 150.00
Stationery and typing report............................. 50.00
Filing report............................................ 2.00
Sending notices of surcharges.............................90
Total.............................................$352.90

The above bill was confirmed nisi and exceptions were filed. Under the Act of June 29, 1923, P. L. 949, the duty of auditing the accounts of the school district was cast upon the city controller; and the Act of May 4, 1927, P. L. 679, provides that the compensation for auditors in school districts of the third class shall be as follows:

“In school districts of the third class, the compensation for auditors shall be five dollars ($5.00) per day for each day necessarily spent by each auditor, and the total expense of such audit, including the cost of filing the report, advertising, and other necessary costs, shall be paid by the school district.”

Under the Act of April 5, 1927, P. L. Ill, the legislature indicates that the auditor shall audit the accounts within thirty days. Before the Act of 1927, P. L. 679, in Com. v. Tice, 282 Pa. 595, the Supreme Court held that the city controller was compelled to make the audit without additional compensation, if the legislature so required. The court refused to pass upon the question as to whether he would be entitled to the compensation of $5 a day. We may consider that this was granted the controller by the Act of 1927, P. L. 679. Under the Act of 1927, P. L. Ill, his report should be completed within thirty days, and the only pay he can be allowed for making the audit is $150. The “expenses” contemplated by the Act of 1927, P. L. 679, in addition to the $5 per day, do not contemplate the hiring of an assistant to do the things that, under the law, the auditor is compelled to do. Such “expenses” are the necessary incidental costs, such, as stationery, typewriting, filing report, etc.

Now, June 23, 1930, the exceptions of the School District of the City of Carbondale to the controller’s charge for auditing the accounts of the school district are confirmed to the extent of $150 for services of an assistant and the remainder of the bill, $202.90, is ordered paid.

Prom William A. Wilcox, Scranton, Pa.


author: Landis, P. J.,

text:
    McKonly v. Lancaster County et al.

      Oliver S. Schaeffer, for rule; Guy K. Bard and Amos E. Burkholder, contra.
    April 19, 1930.
   Landis, P. J.,

On Sept. 17, 1927, a petition was presented for the opening of a public road in Manor Township, Lancaster County. Viewers were duly appointed, and on Nov. 21,1927, their report was presented to the court of quarter sessions and confirmed nisi.

By the Act of March 27, 1903, P. L. 83, it is provided that “whenever any report of viewers, or juries of view, appointed by the court of quarter sessions of this Commonwealth to assess damages and benefits for the opening, widening, narrowing or vacating of any road, street or highway, or.the taking of private property in and by the construction or enlargement of any public work, highway or improvement, shall have been filed, the same shall be confirmed by the court of quarter sessions to which the said report is made, at the expiration of thirty days from the date of the filing thereof, unless exceptions thereto have been filed within such time.” Section 1 of the Act of May 26, 1891, P. L. 116, directs that “whenever any report of viewers, appointed by any court of quarter sessions to assess damages for the opening, widening or change of grade of any street, road or highway, shall be confirmed by the court of quarter sessions to which the said report is made, an appeal may be taken from the said court of quarter sessions by any party aggrieved by the said decree of confirmation, to the court of common pleas in said county for a trial of the question of damages by jury, according to the course of common law, within thirty days from the entry of said decree of confirmation by the court of quarter sessions, and not afterwards.”

In this case there were no exceptions filed to the report. It became absolutely confirmed on Jan. 28, 1928. On Feb. 24, 1928, the plaintiff, Jere M. McKonly, appealed from an assessment of damages of $200 awarded to him to be paid by the County of Lancaster. On March 2, 1929, an issue was framed on the appeal in the court of common pleas to determine the damages sustained by the said plaintiff, but the actual appeal was not filed by the clerk of the quarter sessions court until March 14, 1929. On this ground, counsel for the county commissioners asks to have the appeal stricken from the record.

I am of the opinion that this ought not to be done. The appeal was taken within the thirty days allowed by the act of assembly, and if the clerk of the quarter sessions court did not certify the proceedings at once, as he should have done, it was no fault of the appellant. This very question has, however, been decided in Mansfield Borough’s Appeal, 158 Pa. 314, and no extended discussion need, therefore, be given to it. It was there held that, under the Act of May 26, 1891, which provides for appeals in road cases from the quarter sessions to the common pleas, “an appeal will be sustained if entered in the quarter sessions within thirty days from the confirmation of the report,” and that the “certificate or transcript of the appeal need not be entered in the common pleas within thirty days.”

This rule must, therefore, be discharged. Rule discharged.

Prom George Ross Eshleman, Lancaster, Pa.


author: Niles, P. J.,

text:
    In re Incorporation of East York Borough.

      Schmidt, Keesey, Stair & Kurtz, for petitioners.

      C. W. A. Rochow and John E. Brenneman, for remonstrants.
    May 5, 1930.
   Niles, P. J.,

Under the provisions of the General Borough Act of May 4, 1927, P. L. 519, an application for the incorporation of East York Borough was presented to the Court of Quarter Sessions of York County, filed with the clerk Dec. 2, 1929, and notice thereof ordered to be published for a period of not less than thirty days immediately before the January Term, 1930, which was done, and the legal evidence thereof duly filed. There appeared upon this petition for incorporation 107 signatures, seven of whom were shown to be nonresidents. On Jan. 6th, being the first day of the term, a petition was filed containing fifty-seven signatures of persons who had signed the petition for incorporation, praying for permission to withdraw their signatures, and opposing and objecting to the incorporation. It was alleged that these fifty-seven persons had signed the original petition for incorporation under misrepresentation and without full understanding. No evidence was offered to sustain these allegations. On the same day, Jan. 6, 1930, exceptions to the proposed incorporation were filed with the signatures of fifty-five other alleged resident freeholders of the territory proposed to be incorporated. Thereafter, testimony was taken before the court, and the matter came up for argument March 11, 1930. On the day of the argument, another petition was filed by three alleged resident freeholders desiring to join in the petition for incorporation. A remonstrance, signed by forty-seven resident freeholders, was also filed Jan. 6, 1930.

A requisite of jurisdiction in the quarter sessions is that the territory proposed to be incorporated shall be a town or village within the county. Another requisite for jurisdiction is that the application shall be signed by a majority of the freeholders residing within the limits of the proposed borough. If the court having jurisdiction shall find that the conditions prescribed have been complied with, it may grant the prayer of the petition and make a decree accordingly.

Counsel on behalf of the objectors contend that the evidence does not show that the territory proposed to be incorporated constitutes a village within the contemplation of the law. The evidence shows that upon the 197 acres within the boundaries fixed there are 106 residences situated upon convenient highways, a church, school house, the Pennsylvania Realty Investment Company’s office, and several garages. Attempt has been made by some of the inhabitants to care for their community interests through the East York Improvement Association. The facts revealed by the evidence are sufficient for the court to consider as an element of jurisdiction the neighborhood within the limits of the proposed borough to be a town or village.

It is admitted by all parties concerned that a majority of the freeholders residing within the limits of the proposed borough did sign the original petition filed Dec. 2, 1929. This gave jurisdiction, and imposes upon the court th&. duty of determining whether the prayer of the petition for incorporation should be granted and a decree made accordingly.

In the exercise of the discretion imposed, we are of opinion that, unless there appears some substantial and positive evidence that the incorporation would be unwise and inexpedient, the deliberately express judgment of a majority of the freeholders ought to be concurred in by the court.

A peculiarity of this case is that when the matter came on for hearing a majority of the freeholders, by their remonstrance petition and through their counsel, were objecting to the incorporation and are persisting in their opposition. This objecting majority is produced by the action of fifty-seven of the signers of the original petition for incorporation subsequently signing a remonstrance and attempting to invalidate their former act. Counsel for the petition for incorporation contend that the signers of the original petition had no right to withdraw therefrom after the same had been presented to the court, and that their joining subsequently in the remonstrance must be considered as a nullity. Authorities cited are to the effect that petitioners may not oust the jurisdiction of the court after that jurisdiction has attached by reason of their petition. This would seem to be in accordance with Fleming-ton Borough, Walker’s Appeal, 168 Pa. 628; In re Quakertown Borough, 3 Grant, 203; In re Old Forge Borough, 12 Pa. Superior Ct. 359; the decision of Judge Yerkes in the Court of Quarter Sessions of Bucks County, In re Tullytown Borough, 1 Dist. R. 292; decision by Judge Shull in the Court of Quarter Sessions of Perry County, In re East Newport. Borough, 35 Pa. C. C. Reps. 617; decision by Judge Endlich in the Court of Quarter Sessions of Berks County, In re Wernersville Borough, 5 Berks Co. L. J. 364.

As the record now stands, with the agreement of counsel, there seem to be within the limits of the proposed borough 114 freeholds. Of these, fifty-four are held by married couples as owners in entireties. Counting these husbands and wives who have filed petitions as each a resident freeholder, for the purpose of invoking jurisdiction of the court, the total number of resident freeholders may be considered as 156; and the majority required as signers to the petition for incorporation would be seventy-nine. The original petition for incorporation was signed by 100, which is over a majority of the 156 resident freeholders. By their petition filed Jan. 6, 1930, fifty-seven of the resident freeholders who had signed the original petition asked leave to withdraw therefrom and object to the incorporation. This would leave only forty-three out of the whole number of 156 resident freeholders at the time of the final hearing persisting in the application for incorporation. If the fifty-seven should be considered now as objecting and added to the forty-seven objectors in the first remonstrance, the number of resident freeholders now objecting is 104 as against the forty-three who remain asking for incorporation.

It was questioned whether a married couple holding a freehold by entireties should be counted as one or two. As the calculation either way would make no material difference in the result, it is unnecessary to rule on this point.

Since the argument, counsel have been given an opportunity to ascertain further the sentiments of the residents of the territory, and have filed by general consent further petitions for and against the incorporation signed by resident freeholders and also by resident taxpayers.

The Borough Act of May 14, 1927, § 301, P. L. 519, 531, provides that the charter of a borough may be annulled upon petition of two-thirds of the taxable inhabitants. Evidence has been submitted which seems to clearly indicate that more than two-thirds of the taxable inhabitants are opposed to the incorporation and would favor a decree of annulment of the charter, if granted. This situation is taken into consideration by the court in its action.

As the record now stands, we are persuaded that to incorporate this territory as a borough against the present large preponderance of expressed sentiment in opposition would not give promise of such harmonious neighborhood cooperation as would be highly desirable for success. Therefore, our conclusion is that, under the present circumstances as in this proceeding revealed, the incorporation of East York Borough according to the petition filed Dec. 2, 1929, must be refused.

There have been some necessary legal costs incurred. These should not be paid by those of the parties who did not withdraw from the original petition, but should be paid by the fifty-seven whose withdrawal from the original petition and signature to the remonstrance makes the proceeding abortive.

All signers to any of the petitions filed are parties in court and are, of course, entitled to no witness fees.

The expense of the advertisements required by law are to be included in the costs payable as above indicated.

And now, to wit, May 5, 1930, the application for the incorporation of the Borough of East York, filed Dee. 2, 1929, is refused; and the legal costs of the proceeding are imposed upon the signers of the petition, of withdrawal and remonstrance filed Jan. 6, 1930.

From George Hay Kain, York, Pa.


author: Gest, J., Stearne, J.,

text:
    Pollock’s Estate.

      John F. Headly, Henry P. Erdman and Robert T. McCracken, for Roland D. Pollock.

      Ira Jewell Williams, Jr., A. Carson Simpson and Ira Jewell Williams, for the executors of Margaret Pollock.
    May 1, 1931.
   Gest, J.,

The facts of this case appear so fully in the adjudication of the Auditing Judge that it is not necessary to repeat them in detail. Two questions are raised by these exceptions of Roland Pollock and of the executors of Margaret Pollock to the adjudication: First, whether Roland Pollock stood in a fiduciary relation to his mother, Margaret Pollock, in connection with the agreement made between them of February 8, 1923; and if this first question is decided in favor of the executors of Margaret Pollock, the second question arises, to what relief are they entitled?

The majority of the five judges who were present at the argument are of opinion that the exceptions of Roland Pollock relative to the first question should be dismissed. It may be conceded for the purpose of the argument that Roland Pollock was not a technical trustee of the 2370 shares of stock of the Pollock-Huston Company bequeathed by the will of the testator to him under the condition annexed to the bequest, and it may be further conceded that the declaration of the stock dividend was in accordance with sound financial policy. It should be pointed out, however, that, in the absence of a stock dividend, it would probably have been necessary for the corporation to pay a heavy federal tax on the undivided surplus. The action of the son saved the corporation from the tax and in substance transferred this burden to the mother by compelling her to give up her one-half interest in this stock dividend. This large surplus was build up out of the earnings of the business, accruing since the death of the testator. While the widow had no legal right to any of it until the declaration of a dividend, her moral right to a share thereof, potential and inchoate though it was, entitled her to full and complete independent advice before she should be deprived of her share thereof.

It is clear to us that Roland Pollock stood in a confidential relation to his mother, which required from him the exercise of uberrima fides; that one-half of the stock dividend, or 1185 shares, belonged to her absolutely under the provisions of the will, which specified “dividends of any kind or nature;” that Roland Pollock failed in his duty by insisting upon his mother waiving her rights to the stock dividend without consideration and without independent advice, and further by stating that the dividend would not be declared unless a gift of it was first made to him. Consequently, he became a trustee ex maleficio of the said 1185 shares of stock; and the contract was voidable by her and after her death by her executors. The recital in the will of Mrs. Pollock, as can be seen by reference thereto, of the son’s interest in the corporation had reference solely to the provisions of the will of Mr. Pollock. By oral testimony it was attempted to enlarge this reference to cover the alleged gift of the stock dividend; this testimony was ordered stricken out without objection. As the adjudication discusses the facts of the case very fully in this regard, we do not consider it necessary to supplement it, and pass to the second question.

The Auditing Judge surcharged the accountant, Roland D. Pollock, with $162,179.10, as representing the “actual value” of 1185 shares of stock as of March 17, 1923, the date of the declaration of the stock dividend, or approximately $137 per share. In his first adjudication the Auditing Judge awarded the 1185 shares of stock in kind to the executors of Margaret Pollock, and we are of opinion that this was right. The present is a case of a trust arising ex maleficio, and a court of equity, which we are, should replace the parties in the positions they occupied before the trust arose.

It is beyond dispute that the stock of the Pollock-Huston Company had never at any time any market value, for the reason that there was no market for it. Had the bequest been of such stock, as, for example, Pennsylvania Railroad, which is bought and sold every day on the exchange, the award of the Auditing Judge might have been correct, but “value” in a case like this means nothing. Sir Edward Coke said, 3 Inst. 105: “Concerning the value (to speak it once for all) tantum bona valent quaMtum vendi possunt,” which some one has put into rhyme:

“The real worth of anything Is just as much as it will bring.”

To talk of “actual value,” “liquidation value,” or the like, is simply to becloud the question and run the risk of doing serious injustice to Roland Pollock. Ordinarily, as the Auditing Judge says, “the option is with the complainant; and if property has been wrongfully taken away, . . . she can have relief in money or kind.” But suppose that Mrs. Pollock, immediately after the transaction, had repudiated it and brought suit against Roland Pollock, would any court have awarded her $162,179.10, thus turning the trustee into a purchaser? The court would simply have said: “We cancel the agreement and give you back your stock. You are not entitled to money damages because the thing which was the subject of the agreement had no market value.” Margaret Pollock received all the dividends to which she was entitled; she was not damnified in money; she lost the thing, and it should be the object of a court of equity to put the parties in the same position as that which would have been theirs had the transaction not occurred.

In fact, although in this discussion we necessarily speak of stock, yet the stock represented merely an undivided and indivisible interest in the business. Divested of its corporate shell, the Pollock-Huston Company was but a carpet factory, and its value .depended for the purposes of this case principally on profits divisible in the form of dividends.

In our opinion, the contract being voidable, the damages, if any be awarded, should be calculated from the date when the contract was repudiated and the executors of Margaret Pollock demanded their rights, so that it was error to calculate them on the basis of value existing in March, 1923. Mrs. Pollock received the share of the dividends to which she was entitled, so that her executors were entitled, at most, to nominal damages, for she suffered no money loss by Roland Pollock’s retention of the stock. Consequently, her executors were entitled to have the 1185 shares of stock awarded to them and nothing more.

The exceptions filed by both parties are very numerous, seventy-three being filed by Roland Pollock and twenty-nine by the executors of Margaret Pollock, and need not be disposed of seriatim. The exceptions of Roland D. Pollock relative to the first of the above questions are dismissed, and those relating to the second question are sustained. The exceptions filed by the executors of Margaret Pollock are dismissed. The adjudication is amended by striking out the money award to the executors of Margaret Pollock and substituting in lieu thereof an award to them of 1185 shares of stock of the Pollock-Huston Company.

The Auditing Judge authorizes us to say that he concurs in this modification of his adjudication and award.

Stearne, J.,

dissenting. — I am unable to concur in the judgment of the majority of the court. The verbal and written agreement between the mother and son, entered into by the mother with full knowledge and conceded mental capacity — acquiesced in and acted upon by the parties for over six years and until the death of the mother — ought not now to be permitted to be overthrown by beneficiaries under the mother’s will and for their own benefit.

The ruling of the Auditing Judge, affirmed by the majority of the court, was that the son was a trustee of the corporate stock in question, and that, therefore, a legal presumption arose that any gift by the cestui que trust to the trustee was void and ineffective, and that such presumption was not overcome by a sufficiency of evidence. I have formed the opinion that there was no trust, actual, constructive or ex maleficio, concerning the stock in question; that a gift from a parent to a child is presumed to be valid; that a confidential relation existing between a parent and child does not alter the presumption in favor of the validity of a gift. The mother acquiesced in her act for a period of over six years, until her death, and those interested in her estate ought not to be permitted after such lapse of time to overthrow, for their own advantage, what the decedent, with full knowledge, capacity and deliberation, concluded in her lifetime. I would return the present account to the file unaudited; I would treat the case, in the circumstances, as an application to fix the liability, if any, of the son to the mother for any dividends which legally or equitably belong to her or her estate; I would hold, under the evidence, that no such liability had been established and would dismiss the application with costs.

James Pollock, the testator, was a carpet rug manufacturer. He died September 26, 1917, leaving to survive him a widow and three children — a son and two daughters. The widow died February 28, 1929. The son is the present accountant, and against whom the surcharge has been made. The executors of the estate of the deceased widow and the two daughters, individually, as beneficiaries under her will, are the contestants. The father possessed, at the time of his death, 2480 shares of the capital stock of the Pollock-Huston Company, a Pennsylvania manufacturing corporation. The capital consisted of 3000 shares of common stock of the par value of $100 each, a total capitalization of $300,000. Of the remaining 520 shares, ten were owned by the testator’s son, Roland D. Pollock, and the rest by individuals, directly’or indirectly, associated with decedent in the management of the business. The son was a director and assisted his father in the management of the business.

By the terms of Mr. Pollock’s will, 2370 shares were bequeathed to his son, Roland D. Pollock, “upon condition, however, that he shall make payment of one-half of all dividends that may be declared thereon of any kind or nature to my said wife for and during the term of her natural life.” Testator divided his remaining 110 shares of stock among his nephews. The balance of the estate, after certain pecuniary bequests, was bequeathed to his son and a trust company, as executors and trustees, in trust to pay one-third of the income derived therefrom to his widow for life, and the rest of such income during said period among his three children and upon the decease of his widow, to divide the principal of the residuary estate among his three children, share and share alike.

An account of the executors of the will of the father was duly filed and was audited by Henderson, J. In his adjudication, Judge Henderson properly made the award concerning the 2370 shares of stock in the following language: “2370 shares of the capital stock of The Pollock-Huston Company to his son, Roland Dudley Pollock, upon condition, however, that he shall make payment of one-half of all dividends thereon to his, testator’s wife, for and during the term of her natural life.” In the adjudication it was stated: “By writing hereto annexed, Margaret Pollock, the widow of the testator, requests that the 2370 shares of the capital stock of The Pollock-Huston Company, given by the will to testator’s son, Roland Dudley Pollock, upon condition that he shall make payment of one-half of all dividends thereon to his mother, for and during the term of her natural life, be awarded to Roland Dudley Pollock without security. This request is accordingly granted.” This waiver of security by Mrs. Pollock is attached to the adjudication. There is also attached a certificate dated October 25, 1917, signed by the son, in which he certifies that he accepts the 2370 shares of said stock, bequeathed to him under the will of his father, and agrees “that I will make payment of one-half of all dividends that may be declared thereon of any kind or nature, to my mother for and during the term of her natural life, and do hereby agree to make such payment accordingly.” In accordance with the said adjudication, the 2370 shares of stock were duly assigned and delivered by the executors to Roland D. Pollock, and the same were duly registered in his individual name upon the books of said corporation and new certificates therefor issued to him.

Following the death of Mrs. Pollock in February, 1929, her two daughters, and also the executors under her will, requested the son to file an account relating exclusively to the 2370 shares of stock of the Pollock-Huston Company so bequeathed to him under the father’s will. Accordingly, the son filed his account, entitled “First and Final Account of Roland Dudley Pollock, Special Trustee,” in which he accounted for 2370 shares of the stock awarded to him under the adjudication. He did not account for any of the shares issued to him as a stock dividend under the circumstances hereinafter related. The account takes credit for payments of all cash dividends made by the son to his mother. It was this account which came before the court for adjudication.

The Auditing Judge ruled: (1) That Roland D. Pollock was a trustee for the 2370 shares of stock so bequeathed to him under his father’s will; that his mother, Mrs. Pollock, was a cestui que trust as to one-half of all dividends paid or which should have been paid thereon; (2) that because of this fiduciary relation between the mother and son, and under all the circumstances of the case, a burden was cast upon the son to overcome a presumption against him that the gift was free from the taint of actual or constructive fraud; (3) that the son failed to overcome the presumption against him and he was accordingly surcharged with the cash value of the stock dividend from the date of its receipt.

The majority of the court confirmed this ruling, but modified the adjudication by striking out the surcharge of $162,179.10 and awarding to the mother’s estate the one-half of the stock dividend in kind.

At the outset the bequest of 2370 shares by James Pollock, the decedent, to his son, upon condition that he pay to his mother one-half of all dividends declared and paid thereon for her life, was not a trust. It was a gift upon condition. This situation is specifically provided for by section twenty-three of the Fiduciaries Act of June 7, 1917, P. L. 447, 489, which'reads as follows:

“Whenever any personal property . . . has been or shall hereafter be bequeathed to any person . . . upon a condition or contingency; the executor or executors . . . shall deliver the property so bequeathed to the person entitled thereto, upon such person giving security in the orphans’ court having jurisdiction, in such form and amount as in the judgment of the court will sufficiently secure the interest of the person or persons entitled in remainder.”

Section twenty-four of the Fiduciaries Act invests the orphans’ court with exclusive jurisdiction for the collection or enforcement of payment or delivery of all legacies.

It would, therefore, clearly appear that when Judge Henderson awarded these 2370 shares of stock to the son, upon condition that he pay to his mother one-half of all dividends declared and paid thereon, the son thereafter owned the stock absolutely. He did not hold it in trust. His obligation was a personal one: to pay his mother one-half of all dividends declared and paid thereon. Should the son fail to comply with the terms of the conditional gift, the mother, having waived the entry of security, could only have proceeded against him in the orphans’ court, to recover the amount due her. No trust relationship exists. In the case of a life tenant and remainderman, upon entry of security as provided by the twenty-third section of the Fiduciaries Act (or its waiver), the asset becomes the absolute property of the life tenant. It ceases in every way to form part of the decedent’s estate. Upon the death of the life -tenant, the remainderman must look alone to the estate of the life tenant (or the surety): Reiff’s Appeal, 124 Pa. 145; Letterle’s Estate, 248 Pa. 95; Weir’s Estate, 251 Pa. 499; Kirkpatrick’s Estate. 284 Pa. 583; Strawbridge’s Estate, 14 D. & C. 703.

Bequests on condition are similarly regarded. See Fleming v. Fleming, 204 Pa. 648, 651, et seq.; Etter & Snyder v. Greenwalt, 98 Pa. 422.

It is undoubtedly true, despite the true legal relationship, that the son, his counsel and the Auditing Judge, regarded the stock as a trust res. But where, in truth and in fact, a trust relationship does not exist, no estoppel, admission, or act by the son, his counsel or the court, can transfer or change an absolute ownership into a trust estate. It is freely admitted that upon such a conditional but absolute gift, this court, under the twenty-fourth section of the Fiduciaries Act, could have enforced against the son a decree to pay to his mother one-half of all dividends which were or which he should have caused to be declared on the stock so conditionally bequeathed to him. This, however, is not by way of enforcing a trust, but obliging the fulfillment of the conditional gift, and which, in a paper annexed to Judge Henderson’s adjudication, he promised to perform. I emphasize this legal situation — not because of any rule of practice — but because of its tremendous importance concerning the burden of proof to be borne by the son. If the transaction be regarded as a trust, a barrier is interposed before the gift of the stock dividend to the son which is insuperable. It is practically impossible for a trustee to justify a gift to himself from a cestui que trust of part of the trust res. Yet, despite the above decisions and the twenty-third section of the Fiduciaries Act, this is the burden which the Auditing Judge and the majority of the court cast upon the son.

It was clearly error to have treated these shares of stock as a trust res, and for the son to have accounted for the stock as a “special trustee.” Under no circumstances ought the transaction be treated as a trust with a trustee, trust res and cestui que trust, thereby raising all elements incident to a trust-relationship. The true situation in the circumstances between the mother and the son, with respect to this stock, was that of owner and creditor. In my opinion, the account, as such, should not have been audited. No commissions, counsel fees, etc., should have been allowed. The account should have been returned to the clerk’s office unaudited.

However, as all the evidence is before the court, I would treat the matter as an application under section twenty-four of the Fiduciaries Act to fix the amount, if any, due by the son to his mother under the conditional gift made to him under the terms of his father’s will. Circuity of action and the unnecessary expense and delay of a rehearing under proper procedure is thus avoided.

The Auditing Judge and the majority, with respect to the merits of the ease, take the following position: That, irrespective of the true legal situation of the parties, the will of the father gave to the mother one-half of all dividends on the stock bequeathed so to the son; that a stock dividend was declared and paid to the son; that the son failed to give to his mother her one-half share; that the son, therefore, became a trustee ex maleficio of the mother’s share of stock; that her verbal and written agreement of gift or relinquishment to the son was ineffectual to waive her rights therein because of the trust relationship; that the mother’s testamentary beneficiaries, after her death, properly required the son to reimburse his mother’s estate for said stock.

The majority refuse to consider the corporate situation as it existed at the time of the execution of the agreement of waiver. The basic reason for the declaration of the stock dividend, its effect and the just and reasonable reaction of the son with respect thereto are wholly rejected.

The majority overlook the underlying plain intent of the gift of the father to the son. In effect, he gave the factory to the son, but directed that the son share all dividends with the mother. It is freely conceded that the son ought not to be permitted to dam up dividends, add them to surplus and then by illegal and improper manipulation deprive the mother from her rightful participation therein. However, in the circumstances of this particular case, it is manifestly unfair to attribute any such intent to the son. Nothing which he has doné contributed to such a result. I can readily appreciate that if the son employed accumulated income to enlarge and enhance his factory or to save himself large tax payments, the generosity of his mother ought not to be imposed upon. Yet the plain facts are that the son was interested in maintaining the efficiency and earning capacity of the mill. The mother was quite as interested as the son in seeing to it that the splendid income which she was then enjoying should not be diminished. To employ homely similies: If the cow went dry there would be no more milk. She showed not the slightest indication of desire to kill the goose which laid golden eggs.

The attitude of the majority is reflected in the opinion of the court, where it is stated: “Divested of its corporate shell, the Pollock-Huston Company was but a carpet factory, and its value depended for the purposes of this case principally on profits divisible in the form of dividends.”

Of course, while profits either added to surplus or distributed by way of dividends is one element which reflects the real value of corporate stock, yet it is certainly fallacious to say that the value of any corporation principally depends on dividends.

A corporation may be rich in tangible and intangible assets and yet pay no dividends or profits for many years. To preserve the corporation’s existence it sometimes becomes necessary (for instance, through style changes or variations in human habits or requirements) to tear down an entire corporate structure and erect quite a different financial fabric and physical equipment. To do this frequently requires the discarding of theretofore valuable machinery and equipment and the substitution of others in its place. After such replacement, frequently the intrinsic or liquidating value of the corporation remains practically unaltered. Such alterations, replacements, additions and repairs do not necessarily enhance the real value of a factory. It is this principle which the majority refuses to recognize, and which, under the facts, is most important.

An entirely erroneous conclusion is also placed upon the son’s refusal to declare a stock dividend in the circumstances without the waiver from the mother. The majority consider his act as a willful withholding of a legal right and duty which the son owed his mother. The evidence reveals, upon the contrary, that the son and his mother were in perfect accord as to the consumption of the surplus in replacements, and the method of use, by way of a stock dividend, was merely the form which the corporate action assumed.

A careful analysis and consideration of the facts becomes necessary to properly understand and appreciate the situation of the parties and the legal consequences of their acts. These facts are practically undisputed:

The decedent founded this narrow loom carpet rug business in 1867, with a capital of $1500. The widow cooperated with her husband in the establishment of the business and assisted him in the keeping of the books. In 1911, when the business was incorporated, it had a capital of $300,000. Until the very time of her death, the widow continued to be active in her interest in the business. She always kept well informed concerning its condition and management. At the time of testator’s death in 1917 the capitalization of the corporation was $300,000, and the surplus amounted to $49,925.95. After Mr. Pollock’s death the son became president and was the active manager of the corporation. Customary and moderate dividends continued to be paid to stockholders from 1917 until 1920. Apparently the years 1920, 1922 and 1923 were extraordinarily profitable ones in the history of this business. At the closing of the books on September 30, 1922, despite tremendous increases in overhead, due to increased salaries, insurance, wages and expenses, as well as the declaration and payment of extraordinarily large cash dividends, the surplus amounted to $380,879.93. Mrs. Pollock always shared, and continued to receive until her death, one-half of all the cash dividends which the son received upon all his shares of stock.

At this point, i. e., at the ending of 1922, important changes in policies were under consideration by the directors of the corporation. The character of the carpet rug business was being abruptly changed. What are known as “seamless” rugs were receiving the intensive interest of all carpet rug manufacturers. If such rugs were successfully manufactured it would entirely eliminate the manufacture and sale of the kind of Wilton rugs which this corporation manufactured and marketed. It would render its present business obsolete and worthless. The corporation was not equipped to manufacture such wide seamless rugs. Such a process involved the installation of expensive and complicated machinery known as “wide looms.” Such installation, on account of the extremely large size and character of the machinery, would necessitate a tremendous increase in factory space; it also involved the purchasing of additional adjacent land. Reduced to its lowest terms, the corporate problem was this: If nothing was done, the factory would quickly become obsolete, and the business should be immediately liquidated. On the other hand, if the surplus were employed in the improvement-expansion program above outlined, and should the carpet rug business continue to prosper in the future as experience in the past had seemed to indicate that it would, an extremely opulent future for the corporation seemed assured.

All the interested parties, including the widow, after due consideration and deliberation, concluded that the improvement-expansion program was the correct procedure. It was decided that the business should be continued, improved and enlarged.

The next problem was a legal-fiscal one. The direct method would have been the immediate use of the surplus for this agreed purpose. However, at the particular time, viz., 1922-1923, a possible federal income tax assessment on surplus stood in the way. In 1920 the Supreme Court of the United States had decided (Eisner v. Macomber, 252 U. S. 189) that stock dividends were not taxable as income. It is in the testimony, and also is a matter of judicial knowledge, that, following this decision, the taxing authorities of the United States contemplated the taxation of corporation surplus. In fact, in 1924, such an act of Congress did go into effect (Act of June 2, 1924, 43 Stat. at L. 253, ch. 234, § 220; income tax regulations, 65-69). During this period tremendous increases of capital stock of large numbers of corporations throughout the United States were effected, and such surpluses were added, by way of stock dividends, to the capital. This avoided the possibility of an assessment of such a proposed tax, and was regarded by the federal taxing authorities as not being a tax evasion procedure, but within the legitimate province of corporate action. Mr. Erdman, counsel for the corporation (who was also acting as counsel for both the son and mother), advised that the proper procedure was first to add the surplus to the capital, by way of a stock dividend, before embarking upon the improvement-expansion plan. The son was informed and realized that if the surplus were added to the capital, by way of a stock dividend, under his father’s will the mother was entitled to one-half of all stock dividends that might be declared upon the 2370 shares of stock given to the son under his father’s will. The son was quite willing to share all cash dividends, but declined to give his mother one-half of any stock dividend which might be declared on the 2370 shares. He stated very definitely to his mother that he would not agree to declare such stock dividend unless his mother agreed to relinquish her rights therein. He stated as a reason that otherwise he would be parting with a part ownership in the business, and would thus diminish his control in the corporation. The widow and the son talked over the matter, and agreed that the stock dividend should be declared, that the son should retain all of the stock absolutely, and that the son would continue to pay to his mother one-half of all cash dividends declared, not only upon the original 2370 shares but upon the additional shares which he would receive as a stock dividend. This verbal agreement between the mother and son occurred between the Christmas holidays of 1922 and February 8, 1923. Mr. Erdman, counsel for all parties, talked the matter over with Mrs. Pollock, and was informed by her of this agreement. On February 6, 1923, Mr. Erdman sent to Mrs. Pollock a written agreement reciting the facts and stating that Mrs. Pollock would “probably be entitled to one-half of any stock dividend declared,” and recited Mrs. Pollock’s intention to give to her son all of the stock dividend which might have been declared, and which agreement effectuated the gift, and had annexed to it the son’s agreement to give to his mother one-half of all dividends which he might thereafter receive on the original shares as well as the shares obtained by him by way of stock dividends.

This agreement was mailed to Mrs. Pollock at her apartment in a hotel, with a letter of explanation from Mr. Erdman, and with his suggestion she consider the matter very carefully, and recommended she talk it over with her friends before being executed. Two days later Mrs. Pollock sent for her son and Mr. Erdman, and in their presence the agreement was executed.

At that time, February 8, 1923, Mrs. Pollock was- approximately seventy years of age. Her son was thirty-nine. She was in good physical health and was fully conversant with the nature and extent of her act. At this same meeting Mrs. Pollock gave instructions to Mr. Erdman to prepare her will. In this will she gave the residue oí her estate to her two daughters solely, with the explanation “I wish to state that it is not through any lack of affection for my son, Roland, or his family, that I make this disposition of the residue of my estate, but because I feel he has been amply provided for under his father’s will, and upon my death will receive the entire benefit of the stock of the Pollock-Huston Company, given to him under his father’s will.” It is also in the testimony (although subsequently improperly ruled to be incompetent) that it was because of the “making this agreement with Roland about the stock dividends she was giving all the rest of her estate to her two daughters.” This will appointed her son, Roland, as sole executor. On February 8, 1927' — four years later — Mrs. Pollock executed another will making certain changes, in which she made her daughter, Lillian, her financial adviser and a member of the board of directors of the corporation, Mr. Heston and the Girard Trust Company executors and trustees. Under the seventh paragraph of this will she reiterates and states verbatim, the same reasons given in her previous will for not providing for her son.

After the execution of the agreement between Mrs. Pollock and her son, the stock dividend was declared; March 17, 1923, and was paid to the son, who thereafter continued to pay his mother from February, 1923, until the date of her death, February, 1929 — a period of six years — one-half of all cash dividends declared and paid on the 2370 original shares and upon the shares which he received by way of a stock dividend thereon.

As a matter of interest, but not germane to the decision, after the expenditure of the entire surplus and over $100,000 in addition, the wide looms were not in fact installed; the carpet industry became greatly depressed and unprofitable and the corporation is now in process of liquidation.

What fraud, actual or constructive, exists in the present facts which requires the setting aside of the mother’s written agreement? In my opinion, the mother gave up no substantial right or interest. In administering justice under equitable principles, the orphans’ court should always look to the substance and not the form.

What were the rights of the widow in this surplus prior to February 8, 1923 — the day she executed the agreement? I do not understand that when a corporation accumulates a surplus, the stockholders immediately become seized of a vested interest in such surplus and are entitled to a present distribution thereof. Quite upon the contrary, Mr. Justice Kephart was careful to say (Nirdlinger’s Est., 290 Pa. 457, 471, 472) : “Courts in determining rights as between life tenants and remaindermen, do not endeavor to control, manage or direct the internal affairs of a company, nor do they attempt to require that money held as surplus for corporate reasons shall be divided among the members in order that one member shall receive the accumulated earnings.”

These directors, as the Auditing Judge finds, in an honest exercise of business judgment, decided upon a change in the company’s manufacturing policy. The company concluded to go into the business of manufacturing seamless rugs. This involved the expenditure of the entire surplus and $100,000 in addition. Undoubtedly the directors could, and possibly should, have voted to so expend the corporation surplus. In so doing, it must be remembered with this change of manufacturing policy buildings and machinery theretofore useful and carried on its books as valuable assets would immediately be scrapped, depreciated and rendered obsolete. The new machinery and assets so purchased, and the new buildings so erected, would be placed in the corporation assets as replacements. It must be remembered that the expenditure of the surplus, under such circumstances, was not merely adding the surplus to the already accumulated capital, thereby increasing the size and productivity of the factory. It was a decision which changed vitally the corporation’s policies and financial structure. It is again emphasized that the widow, in full possession of all the facts and knowledge, acquiesced in this change of policy and actively counseled and participated in such expansion and change in the corporate program. Had the corporation acted as above indicated, it cannot be seriously questioned that the widow would have had no legitimate claim to any share in such surplus.

With this honest and legitimate need for the use of the corporate surplus, it was solely to protect the corporation from additional federal income tax assessments that counsel for the corporation advised the transfer of surplus to capital. This was the only reason why the use of the surplus, as above indicated, first took the form of a declaration of a stock dividend. The subsequent Acts of Congress of 1924 and 1926, taxing corporate surplus, justified the soundness of the attorney’s advice. Had the corporation expended its surplus for improvements, the directors contemplated that thereafter they might be met with a demand for an additional income tax assessment upon such surplus, and for which they would have no means with which to pay it. It was this consideration, and this alone, which engendered the idea of the declaration of a stock dividend. It is worthy of note, but not decisive of this case, that an examination of the federal tax cases and treasury regulations under the Acts of Congress of 1924 and 1926 will reveal that in the facts in the present case this surplus would not have been taxable, and that in truth and in fact the declaration of a stock dividend saved no corporate taxes whatsoever.

The consideration of such declaration of a stock dividend revealed that under Mr. Pollock’s will his widow would be entitled to participate to the extent of one-half of the stock so given to the son. The son immediately disclosed to his mother the results following such method and his objection thereto. With full knowledge of all the facts, and actively desiring the improvement-expansion program to proceed, the mother agreed to waive her rights in the stock dividend. She signed a written agreement with full knowledge and assent, and at the same time omitted the son from her will, although making him her sole executor.

I seriously doubt whether the waiver in the present case amounted to a gift. But, assuming that it is a gift, it is a settled principle of law that the mere existence of the parental relation raises no presumption against the validity of a gift by a parent to a child, and it is not to be presumed that the gift was the result of fraud or undue influence. On the contrary, such a gift being in accordance with the promptings of parental duty and affection, is presumed to be valid, and the burden is on the donor, or those claiming under him, to show that it was not free and voluntary, especially where it does not appear that the gift was improvident: 46 Corpus Juris, 1322, '§ 152. Undue influence, to invalidate a gift between parent and child, is an unlawful or fraudulent influence which destroys the free agency of the donor and substitutes therefor the will of the donee. The existence of a fiduciary or confidential relation between parent and child, in addition to the family relation, is not necessarily fatal to a gift from the former to the latter: 46 Corpus Juris, 1319, § 142.

The text of the above sections from Corpus Juris is amply supported by our Supreme Court decisions: Carney v. Carney, 196 Pa. 34; Crothers v. Crothers, 149 Pa. 201; Yeager’s Estate, 273 Pa. 359; Northern Trust Co. v. Huber, 274 Pa. 329; Leedom v. Palmer, 274 Pa. 22.

While it is true that the son was an executor of his father’s will, yet it is also to be noted that he was the only son and was extremely close in the affection of both his father and mother and so continued until their respective deaths; at the time of the execution of the agreement of gift he was made his mother’s sole executor. There is no evidence tending to indicate that the mother was exclusively dependent upon her son for business or financial advice. Mr. Heston (her husband’s financial adviser and a director of the corporation) apparently directed her fiscal affairs and was subsequently made one of her executors in her last will and testament. The record is absolutely barren of evidence which could be reasonably held to prove, or tend to infer, that the son by any method, directly or indirectly, destroyed his mother’s free agency and substituted his own will. The mother was not aged or infirm, but, upon the contrary, was in good health and mental vigor; she lived alone in a city hotel, made frequent trips abroad, both alone and with her grandchildren, and was fully informed concerning all the details of the business. Mrs. Pollock, with her husband, had founded the business, had assisted him in keeping the business books and had always kept fully informed and was thoroughly familiar with all of the corporation’s affairs; it is not charged that anything was ever concealed from her; she made her agreement with her son in full possession of all her faculties and with full knowledge of all the facts.

It is true that Mr. Erdman, a highly reputable member of the Philadelphia Bar, represented all parties and' consequently, in the circumstances, was unquestionably serving adverse interests. Yet, for the reason hereinafter narrated, I cannot feel that this action was improper, reprehensible or unethical. He merely put in writing what the parties themselves had already agreed upon; he mailed the agreement to the mother, and even suggested care be exercised in signing it and recommended that she talk it over with her friends. Mrs. Pollock kept the agreement for two days, and it was she who sent for Mr. Erdman and her son and then voluntarily executed it. At the time Mrs. Pollock executed the agreement she realized that she was favoring her son as against her two daughters, which, of course, she was at perfect liberty to do. There is testimony (hereinbefore referred to) that it was because of the execution of this agreement that she was making a will in the manner that she was about to instruct her attorney. She gave instructions to Mr. Erdman at this time to draw her will. According to the terms thereof, she recited that because of the gift of the stock to her son by the husband and in view of the fact that at her death he, the son, “will receive the entire benefit” of said stock, that she leaves her entire estate to her two daughters to the exclusion of the son. She carefully states that she does this through no lack of affection for her son, and the son is appointed her sole executor. It is worthy of note that four years later, when Mrs. Pollock made a new will, these identical statements were reiterated.

I am, therefore, of opinion that, under all the circumstances of the case, the son really did nothing to the disadvantage of his mother. The transaction as to the 2370 shares of stock was not a trust; whatever confidential relationship existed between the mother and the son, it was not involved in the son’s ownership of 2370 shares of the stock in question; the son has fully met and overcome, by undisputed evidence, all presumptions, if any, which may be held to exist against the bona fides of the transaction; the son acquired a legal and absolute title to all of the shares of the stock dividend declared upon the 2370 shares so conditionally bequeathed to him under the terms of the will of his father.

And finally: Contestants stand in no higher position then did Mrs. Pollock in her lifetime. She made this agreement in full health and mental vigor on February 8, 1923. She lived for over six years thereafter, and died February 28, 1929. During all of these years she made no claims or demands upon her son respecting whatever rights she might have had in the stock dividend; upon the contrary, she acquiesced in the arrangements and agreements that she had made with the son; she omitted her son from participating in her estate because of the agreement; the son continued .to pay her one-half of all cash dividends declared or paid upon all the stock which he held so derived from his father, and on the stock dividend declared thereon. Certainly, after Mrs. Pollock’s death, her personal representatives and beneficiaries under her will ought not to be permitted to maintain a claim which she failed to make— or did not choose to make — in her lifetime. See Miteheson’s Estate, 15 Phila. 605; Bispham’s Estate, 8 D. & C. 556; Deardorff’s Appeal, 6 Watts, 159; Priestley’s Appeal, 127 Pa. 420.

I would sustain Roland D. Pollock’s exceptions Nos. 1, 2, 72 and 73 against the action of the Auditing Judge in surcharging him with the value of 1185 shares of the stock of the Pollock-Huston Company, as of March 17, 1923, of the value of $162,179.10. I would declare that Roland D. Pollock was legally entitled to the entire stock dividend declared upon the 2370 shares declared on March 17, 1923, pursuant to the agreement between Roland D. Pollock and his mother, dated February 8, 1923; I would hold that the account herein filed is improperly filed and stated, and would direct that it should be returned to the files unaudited; that all of the costs and legal charges incident to the audit should be charged against the contestants, and I would dismiss all other exceptions.

Sinkler, J., joins in the above dissent.


author: Kun, J.,

text:
    City of Philadelphia v. Sharp.

      Milford M. Tinsley, for petitioner; Michael J. O’Callaghan, for respondent.
    December 20, 1930.
   Kun, J.,

This is a rule for judgment upon the whole reeord. A citation for possession was issued in accordance with the Act of April 20, 1905, P. L. 239, which provides a method whereby a purchaser of real estate at a sheriff’s sale may secure the possession thereof.

The petitioner, Emily H. Armstrong, purchased premises No. 2814 Jackson Street, Philadelphia, at a sheriff’s sale held on June 3, 1929, receiving a deed therefor on July 22, 1929, which deed has been duly recorded. The said sale was had on proceedings for the collection of taxes assessed against the said premises for the year 1921 and for which a lien was filed as of the above court, term and number. The respondent, Catherine Mulligan, the person in possession, obtained title to the premises from one Mary Forrester by a deed June 23, 1928, and not recorded or registered until May 21, 1929, which was after the date of issuance of the levari facias under which the sheriff sold the property. Respondent seeks to retain possession of the property on three grounds:

(1) That the lien was not filed against the registered owner; (2) that the registered owner of the property was not properly served with the scire facias; (3) that the receiver of taxes issued in March, 1929, a certificate showing taxes due on the premises for the years 1923 to 1928, and showing no taxes for 1921, hence raising the question of estoppel.

Proceedings for the collection of taxes are now governed by the Act of May 16, 1923, P. L. 207, which provides that the name of the owner, which in Philadelphia, because of our registry bureau, means registered owner, must be set forth. The lien in this case was filed against one Rebecca Sharp on November 17, 1923, who is referred to in the petition as owner. The answer to the petition does not deny that Rebecca Sharp was the registered owner, but takes exception to the fact that she is referred to in the petition as the owner and not as the registered owner. The Act of 1923, supra,, states that the “name of the owner” must be set forth. We think this has been suifieiently done. Moreover, a tax lien is a proceeding in rem, and in this case when the scire facias was issued thereon, Mary Forrester, who had become the registered owner, was substituted as party defendant, and made defendant in the scire facias, which corrected any deficiency in the name of the defendant as originally set forth.

As to the second point that the registered owner was not properly served with the scire facias, the sheriff made return — “Posted and advertised, nihil habet as to the defendant.” This service is in accordance with section eighteen, subdivision C, of the Act of 1923, supra, which provides for service by advertising when the defendant named in the writ cannot be found by the sheriff, or her residence is unknown to him. Hence, personal service upon the defendant in this type of case is not necessary. Respondent further denies in her answer that the sheriff posted the property. It is a well-established rule of law in this Commonwealth that one cannot contradict the sheriff’s return: Rickard v. Major, 34 Pa. Superior Ct. 107.

In addition to the above, the said Act of 1923, section 31, provides as follows: “Upon the delivery by the sheriff of a deed for any property sold under a tax or a municipal claim, the judgment upon which sale was had shall thereupon and forever thereafter be final and conclusive as to all matter of defense which could have been raised in the proceedings, including payment, and no error or irregularity in obtaining or entering of such judgment shall effect [sic] the validity thereof.”

In the cases of Upper Darby Township v. Bennett, 87 Pa. Superior Ct. 414, and Carless v. McCloskey, 90 Pa. Superior Ct. 209, a similar section in the Act of May 28, 1915, P. L. 610, was interpreted. In these cases it was held that after the sheriff had given a deed for a property sold under a tax or a municipal claim one cannot question the judgment upon grounds of irregularity in the proceedings.

Respondent further relies upon the fact that she, in March, 1929, received from the receiver of taxes a certificate showing taxes due on the property from 1923 to 1928, and on this ground claims that the plaintiff was estopped from pressing its lien for taxes for the year 1921. It is to be noted that a lien was filed for the taxes of 1921 on November 17, 1923, and that on March 6, 1929, judgment had been entered thereon. The lien was a matter of public record, and any one who examined the record could have seen it. The certificate does not set forth, nor is it averred that it stated, that there were no taxes due for the year 1921. In this respect the case differs from the facts set forth in Philadelphia v. Anderson, 142 Pa. 357, and Philadelphia v. Black, 63 Pa. Superior Ct. 420, in which cases certificates were issued stating affirmatively that no taxes were due for specified years. The courts held that the city was on this account estopped from filing liens for the same taxes thereafter. There is no such certification in the instant case.

The rule for judgment in favor of the petitioner upon the whole record for possession was properly made absolute. t


author: Alessandroni, J.,

text:
    Hagerty v. Gow Company, Inc.

      Albert G. F. Curran, for plaintiff; Harry S. Ambler, for defendant.
    January 9, 1931.
   Alessandroni, J.,

Eugene J. Hagerty brought suit to recover damages sustained by him as the result of a collision between his Packard limousine and the defendant’s Mack truck. It is alleged that the accident resulted from the negligence of the defendant’s driver. The defendant filed an affidavit of defense, averring that the proximate cause of the collision was the negligence of the operator of the plaintiff’s Packard limousine, and a counterclaim for $2250. The counterclaim is based on the following facts:

Pour passengers in Eugene J. Hagerty’s car had brought suit against the defendant for injuries sustained as a result of the collision which forms the basis of the plaintiff’s action. The defendant settled these suits for the sum of $4500, and it is averred that Eugene J. Hagerty was a joint tortfeasor with the defendant company, for which the defendant company has a right of contribution against him in the sum of one-half of the amount paid by the defendant to the plaintiff’s passengers.

The rule to strike off the counterclaim is based on the allegation that this counterclaim cannot be maintained in an action of trespass. The Practice Act of 1915 provides for a set-off or counterclaim only in actions in assumpsit. An amending act of April 4, 1929, P. L. 140, provides that section thirteen, regarding trespass actions, shall be amended to read, in part, as follows: “The defendant in such actions may, by affidavit of defense, in addition to denying negligence on his own part, allege negligence on the part of the plaintiff, and set up against the plaintiff, in the manner by this act prescribed, a claim for damages arising out of the same general circumstances upon which the plaintiff’s claim is based, and both claims shall in the said cause be tried as one action.” The defendant relies upon this act as authority for the procedure he adopted in setting forth his counterclaim.

Our interpretation of the act in question is that it was intended to cover a situation where the defendant sustained damages directly as the result of the same circumstances on which the plaintiff’s claim is based and in which the defendant denies negligence on his part and avers negligence on the part of the plaintiff. The language of the act is clear in this respect. The defendant’s counterclaim sets forth that the defendant and the plaintiff are joint tortfeasors, as a result of which a right of contribution arises. This presupposes that both the plaintiff and defendant were guilty of negligence in causing the accident, and, therefore, does not meet the requirements of the Act of 1929.

Moreover, the act was intended to cover cases in which the defendant himself suffered damages directly resulting from the accident and not a situation where the claim comes indirectly through a right of action which third parties have brought in other proceedings against the defendant. The title of the amending act of 1929 states that the act permits “cross-suits in actions of trespass.” This title supports our interpretation.

It is also pertinent to note that the right of contribution is based upon principles of equity or contractual rights and is not a trespass action. As stated in Friedman v. Maltinsky, 260 Pa. 312: “While in general equity has jurisdiction to enforce contribution among those jointly liable, such jurisdiction is not exclusive, especially where the right grows out of a contract express or implied. ‘The right to contribution in such case is founded upon equitable principles and was originally enforceable only in a court of equity. Now, however, it may be enforced in a court of law, if a contract to make contribution can be implied from the circumstances which create the common liability, as where one of two sureties is compelled to discharge their mutual undertaking to answer for the default of their principal.’ ” See, also, Armstrong County v. Clarion County, 66 Pa. 218.

There is another reason why the counterclaim must be stricken off. The right of contribution among tortfeasors is based on the fact that “one of several wrongdoers has been compelled to pay the damages for the wrong committed:” 13 C. J. 826, 828, §§ 18, 24. The expression “compelled to pay” means legally compelled to pay and not a voluntary settlement by one of the joint tortfeasors in a suit against him alone. Such action is voluntary oh his part and is without the judicial support which exists when a jury renders a verdict. One joint tortfeasor cannot of his own initiative and volition create an obligation which he can subsequently foist upon another joint tortfeasor in an action for contribution. We have carefully examined all the cases in this jurisdiction dealing with the right of contribution between joint tortfeasors and find none in which the right of contribution was enforced without a judgment having first been entered in the proceeding for which contribution was sought.

And now, to wit, January 9, 1931, the rule to strike off counterclaim is made absolute.


author: Newcomb, P. J.,

text:
    Loughney v. Scranton Lackawanna Trust Company, Trustee.
    No appearance for plaintiff; Donahoe & Helriegel, for defendant.
    Aug. 1, 1930.
   Newcomb, P. J.,

On Dec. 10, 1925, Michael P. Loughney, late of the City of Scranton, deceased, declared a trust in the proceeds of certain life insurance policies for the benefit of his mother, his wife and his several children. The fund came to the hands of the trustee above named and from time to time it has been administered according to its terms; inter alia, in May, 1929, an order was made for the benefit of the daughters, whereby the payment of the funds set apart for their use was accelerated. It will be observed, however, that the order on that occasion was in strict accordance with the terms of the trust, as will appear by reference to the seventh paragraph thereof. The sum of $5000 in equal shares was made payable to the three daughters upon the youngest reaching the age of twenty-one years, with provision, however, that the trustee might, in its discretion, pay any part of the share of either upon satisfactory evidence that it was for the welfare of the beneficiary during minority.

For the three sons, Edward, Joseph and William Loughney, the sum of $500 each was set apart, payable, with the accumulations, when the youngest child should become of age, without any such qualification providing for payment during minority. Hence, the rule of exclusion suggests itself. The youngest child is a daughter, June Rose Loughney, now six years of age. All of the children still have their home with the mother. The oldest is Edward, who is past twenty-one years of age, and he joins with his mother in this application of the trust company for leave to anticipate the maturity of his share and to pay the same to his mother because of her needy circumstances.

The application is founded upon paragraph 14, which provides for submitting to the court any question as to the construction or interpretation of the trust agreement.

There is no question about Mrs. Loughney being in need, nor that the eldest son desires his share to be turned over to her on that account. The trust company would be entirely willing to pay it if it could be justly so done under the obligations which it has assumed.

The trouble is not only that the trustee is asked to accelerate the maturity of payment, but also that Edward is not the sole party in interest. The tenth paragraph provides that in the event of any of the children dying leaving issue, such issue shall take the parent’s share, but if no issue the share of such child shall be distributed to his or her brothers and sisters. Hence, the other brothers and sisters not now sui juris have a contingent interest in that fund expectant upon the death of Edward without issue.

The parties to the petition emphasize their belief that the relief asked for is within the intent and purpose of the settlor, but that can hardly be reconciled with the provision of paragraph 7 for such an advancement limited, however, to the daughters, without any intimation with regard to the share of either of the sons.

The conclusion is unavoidable that the trust agreement will not bear the interpretation asked for.

Prom William A. Wilcox, Scranton, Pa.


author: Reid, J.,

text:
    Brodie v. City of Pittsburgh.

      M. Leon Tolochko, for petitioner.

      Charles A. Waldschmidt, City Solicitor, and Oscar T. Taylor, Assistant-City Solicitor, for respondent.
    July 2, 1930.
   Reid, J.,

Upon the facts averred in the petition (and hereafter stated) the above cause came on for argument, the City of Pittsburgh not being represented by counsel. Thereupon an order was made and entered • of record directing that the municipal lien referred to in the petition be stricken from the record. Thereafter the City of Pittsburgh asked to be heard, and submitted a brief on the law of the case, in which it is urged that the lien referred to had not been divested. If such be the law, the order made striking it off should be revoked.

The following are the material facts quoted from the petition. They are not controverted, and, accordingly, are accepted as true, viz.:

“The municipal lien in question was for the sum of $208.53, against the property owned by your petitioner, and was entered on April 25, 1927 at No. 29 July Term, 1927 in the Prothonotary’s Office of Allegheny County, Pennsylvania. The petitioner’s premises then owned by Elizabeth Annie Payne and William J. Payne, Jr., were sold at sheriff’s sale to your petitioner’s predecessor in title for $1115.58, which sum was distributed by the sheriff as follows:
“To costs in full on this writ............................ $234.63
To Walter J. Christry, Collector, 1927 county taxes........ 78.29
To Wallace Borland, Collector, 1927, city, school and water taxes ............................................ 404.55
To Wallace Borland, Collector, 1928, city, school and water taxes ............................................ 398.11
$1115.58
“The proper authorities of the City of Pittsburgh failed to file with the sheriff any claim for the aforementioned municipal tax and the proceeds were used for the payment of 1927 county tax, 1927 and 1928 city, school and water taxes.”

The City of Pittsburgh contends that the facts stated do not warrant the order prayed for (and, as above stated, already made by the court). The brief filed in its behalf does not attack the petitioner’s authorities, which support the principle that where a fund sufficient to pay tax liens is produced at a judicial sale and the proper application of the fund be not made to such liens in the order of the priority, they are divested.

The city insists, under the provisions of the Act of May 16, 1923, P. L. 207, that so far as municipal claims or liens are concerned, they are not divested unless the fund be sufficient to first pay all outstanding tax liens and municipal claims in full.

In other words, it contends that the application of the funds in the sheriff's hands to the taxes for the years 1927 and 1928 was proper, and, therefore, that the municipal lien in question was unaffected by the sale and yet binds the property in the hands of the purchaser.

The pertinent sections of the Act of May 16, 1923, are as follows:

“Section 2. All taxes . , . shall be ... a first lien on said property; . . . and such liens shall have priority to and be fully paid and satisfied out of the proceeds of any judicial sale of said property, before any other obligation, judgment, claim, lien, or estate . . . save and except only the costs of the sale and of the writ upon which it is made.
“Section 3. All municipal claims . . . shall be ... a lien on said property; . . . and said liens shall have priority to and be fully paid and satisfied out of the proceeds of any judicial sale of said property, before any other obligation, judgment, claim, lien or estate . . . save and except only the costs of the sale and the writ upon which it is made, and the taxes imposed or assessed upon said property.”
“Section 31. . . . nor shall the lien of a tax or municipal claim be divested* by any judicial sale of the property liened, as respects so much thereof as the proceeds of such sale may be insufficient to discharge; . . . On any such sale being made all tax claims shall be paid out of the proceeds thereof: first, the oldest tax having priority; and municipal claims shall be paid next, the oldest in point of lien having priority. . . .”

Under the act above quoted, taxes as such are clearly given priority of municipal liens. There can be no doubt as to the meaning of the paragraphs to which we have referred. The taxes are definitely given priority and must be fully paid before municipal claims or liens can attach to the fund in the hands of the sheriff. The result of this is that the payment by the sheriff to the collectors, shown in the special return, to the exclusion of the municipal lien in question, was in entire accordance with the law. That lien was on record, requiring no notice by anyone of its existence and not being divested by payment out of the fund in the hands of the sheriff by reason of the fact that insufficient money was realized to pay the amount in question, the result is it still attaches to the property and must be eventually paid as an undivested lien.

The order heretofore made striking off the lien must be revoked.

Order.

And now, July 2, 1930, after hearing and upon consideration, it is ordered that the order of court heretofore made, dated June 16, 1930, striking from the record the lien of the municipal claim at No. 29, July Term, 1927, Municipal Lien Docket, be and the same is hereby revoked and the said lien is now hereby reinstated.

From William J. Aiken, Pittsburgh, Pa.


author: Fleming, P. J.,

text:
    Miles v. Milesburg Borough.

      Arthur C. Dale, for plaintiff.
    J. K. Johnston and P. H. Johnston, for defendant.
    July 10, 1930.
   Fleming, P. J.,

This matter comes before us upon a motion by the defendant to strike off plaintiff’s statement for reasons assigned therein.

The case arises from the condemnation by the defendant borough of certain lands of the plaintiff for the purpose of assisting the Department of Highways of this Commonwealth in relocating and rebuilding a state highway through the defendant borough. While the matter is before us in the nature of an original action in trespass, it is, in reality, an appeal from the award of viewers appointed pursuant to law. This, of course, makes no difference, so far as the correctness of the pleadings is concerned, but must, nevertheless, be borne in mind in considering the sufficiency of the plaintiff’s statement.

No attack is made upon the regularity of the proceedings by which the defendant has exercised its power of eminent domain. The regularity of such is, in fact, affirmed in the statement filed. The entry of the defendant borough, so far as land taken for the state highway, to wit, a width of 30 feet and an approximate length of 150 feet, is a legal entry. The established rule in determining plaintiff’s rights therein is a consideration of the advantages and disadvantages arising from the taking of the land and the building of the road as affecting the value of the plaintiff’s property. In short, the measure of damages is the difference, if any, in the value of the plaintiff’s property before and after the taking by the defendant borough.

Much of the matter averred in plaintiff’s statement is evidential in character. When a statement contains matters of evidence, it may be stricken from the record, as such matter cannot be treated as mere surplusage: Eagle v. Armstrong, 1 D. & C. 597.

Furthermore, plaintiff’s statement complains that the defendant obstructed plaintiff’s approach to his dwelling house and outbuildings; that it created a situation whereby water collected, and continues to collect, on a certain part of plaintiff’s land; that the grade was raised; that shrubs, hedges, walks and drives were destroyed; and that the drainage of plaintiff’s land was obstructed. These and many other specific complaints are voiced in the statement filed. It will suffice to say that any such specific complaints as arise from the legal entry of the defendant upon the land taken may be considered on the trial of the cause by way, and only by way, of showing a depreciating effect upon the value of plaintiff’s land. Such complaints as arise other than from the legal entry of the defendant — and are, therefore, the result of alleged illegal acts of the defendant, its agents or employees — are not cognizable in this action.

That the statement is not “as brief as the nature of the case will admit” is clear. It thus offends section 9 of the Practice Act, which is mandatory, not merely directory: Fuller v. Stewart Coal Co., 27 Dist. R. 512; Schwartz v. Bank of Pittsburgh, 67 Pitts. L. J. 809. This statement does not “contain, and contain only,” a statement in a concise and summary form of the material facts on which the party pleading relies for his claim, and, therefore, offends section 5 of the Practice Act, which is also mandatory.

That the plaintiff can declare in a much more succinct and concise form the nature of his demand arising under the alleged legal entry of the defendant in condemnation proceedings is clear. That the issue will be clearer and the trial thereof more expeditious and satisfactory is beyond question. Much of the matter contained in the statement filed will remain matters for proof at the trial. Such matters as are not the consequence of the legal entry of the defendant shall be eliminated entirely from consideration in this action.

And now, July 10, 1930, motion of defendant to strike plaintiff’s statement from the record is allowed and plaintiff’s statement accordingly stricken from the record, the plaintiff to be permitted to file an amended statement in conformity with this opinion within fifteen days from this date, unless such time be extended by order of this court. From s. D. Gettig-, Beiiefonte, Pa.


author: Lamorelle, P. J.,

text:
    Wharton’s Estate.

      Taylor, Roley, Hoar & Nicholson, for exceptants.
    February 27, 1931.
   Lamorelle, P. J.,

Where the donee of a general power of appointment by will appoints to those who for want of appointment or for failure to make a valid appointment would take a fee, does the fact that the appointment is of an equitable life estate, with spendthrift clause, make void the appointment and empower the remaindermen to terminate the trust? This is the one important question raised by the exceptant, and it has been answered in the negative by the Auditing Judge.

It is claimed by the exceptant that the appointment transgresses the rule .against perpetuities, but neither the oral nor the written argument convince us that this rule has any hearing on the real question, which question is, as we understand it, the validity of the exercise of the power; that is to say, whether the “spendthrift” clause feature may be entirely disregarded.

When, in 1916, the late Judge Anderson audited the account of the executors, he upheld this trust as not transgressive of the rule against perpetuities. In so doing he necessarily decided that there could be no coalescence of the equitable estate with the legal estate, because of the spendthrift clause contained in the trust.

The law on this matter is so well settled that at this late day citation of authority would seem unnecessary, especially as none of the many cases relied upon by the exceptant are helpful to his contention.

Our ruling in Moore’s Estate, 198 Pa. 611, upheld in a per curiam opinion, has never been questioned, reversed nor even criticised. In this case testator created three spendthrift trusts, one for each of three sons for life, with remainder on the death of the survivor to certain persons in trust, to found and maintain such charitable and educational institution or institutions as they, in their discretion, might deem proper, wise and expedient. Testator died within a calendar month of the making of the will. The devises and bequests over thereupon fell, and the sons sought to terminate the trusts. Said Judge Penrose, at page 612: “It is a principle so familiar as scarcely to require reference to authority, that where two estates meet, merger will not be permitted if the purposes of the creation of one of them require that they should remain distinct. . . . An equitable life estate will not coalesce with a legal remainder to the heirs of the first taker and thus cause a trust to protect from creditors to fail (Rife v. Geyer, 59 Pa. 395) any more than it will for the purpose of giving to the equitable tenant for life the power to dispose of the estate. ... A remainder in fee in the cestui que trust for life differs in no respect from a remainder to his heirs. When the purposes of a valid trust require the legal estate to remain in the trustee, no act of the cestui que trust, or no operation of law can take it from him.”

We assume for the purposes of this discussion that the present cestui que trustent are entitled in remainder; the above cited case is decisive of the fact that there is no merger and that they are not now entitled to terminate the trust; we do not decide that they are the remaindermen; we are not now required to do so: Jones’s Trust Estate, 284 Pa. 90; Ledwith v. Hurst, 284 Pa. 94.

Of course, where there is a special power given the donee, for instance, one to appoint to his child or children, which child or children would, on failure to exercise the power, be entitled to the fee, the donee may not so encumber the appointed estate as to deprive the remaindermen under the will of the donor from their inheritance; but that is not this case, although counsel seems to think that it is; he bases his argument on that condition of affairs, and, yet, in his brief, admits that Judge Anderson was entirely right in upholding the trust.

Forrest’s Estate, 8 D. & C. 461, wherein are recited Pepper’s Appeal, 120 Pa. 235; Wickersham v. Savage, 58 Pa. 365, and Johnson’s Estate, 276 Pa. 291, are cases in point showing when the heir may not be deprived of his inheritance. Rafferty’s Estate, 281 Pa. 325, Camilla Lewis’s Estate, 29 Dist. R. 796, and David Lewis’s Estate, 29 Dist. R. 798, and 269 Pa. 379, are cases similar to the one now before us and illustrative of the principles laid down in this instant case.

In the circumstances, it is unnecessary to determine whether Judge Anderson’s adjudication is res adjudicator or not. Suffice it to say, it was correct, and, therefore, may not be attacked either directly or collaterally in an endeavor to terminate the trust. The authorities, pro and con, showing when and under what circumstances an adjudication is res adjudicata, are referred to and discussed at length in Kellerman’s Estate, 242 Pa. 3, and in Gould’s Estate, 270 Pa. 535.

The facts in the instant case, none of them in dispute, are set forth at length by the Auditing Judge, and no good purpose is served by their repetition, as his adjudication is part of the record.

Accordingly, all exceptions are dismissed and the adjudication is confirmed absolutely.


text:
    General Finance Company v. Schmerbach et ux.

      David S. Malis, for plaintiff; Morris & Kirby, for defendant.
    January 20, 1931.
   Alessandroni, J.,

A writ of replevin was issued on May 27, 1930. The statement of claim set forth that the plaintiff corporation leased a Windsor coupé automobile to the defendants in accordance with the terms of an agreement thereto attached. It averred that the defendant defaulted in the conditions of the lease by failing to make certain weekly payments, as a result of which the defendants’ right of possession and interest in the automobile ceased and the title and right of possession rested solely in the plaintiff.

The affidavit of defense admitted the leasing of the automobile under the agreement alleged, but averred that the execution of the agreement was obtained by misrepresentations as to certain attributes of the automobile. The defendant sets forth that judgment was entered in C. P. No. 2, as of March Term, 1930, No. 2831, on the lease agreement and that a levy was made under that judgment on the automobile replevied. It is further alleged that Jene Schmerbach is a married woman and cannot be held liable.

The rule for judgment for want of a sufficient affidavit of defense in replevin should be made absolute. Nowhere in the affidavit of defense are facts set forth which would indicate that title or the right of possession rested in the defendants.

“The Act of April 19, 1901, P. L. 88, provides that a defendant who desires to contest, in court, the title to or right of possession of property replevied, must file an affidavit of defense ‘setting up the facts denying the plaintiff’s title and showing his own title to said goods and chattels,’ and authorizes the court to enter judgment in favor of the plaintiff ‘for such goods and chattels as to which the court may adjudge the affidavit insufficient.’ The sufficiency of such an affidavit must be determined by the same rules that control in other actions where like affidavits are required. It must state frankly and fairly facts that support the claim advanced; not legal conclusions or mere inferences drawn by affiant:” Miller v. Jackson, 34 Pa. Superior Ct. 31.

The matter alleged by the defendant might possibly be raised in another proceeding, but they have no place in a replevin proceeding which only involves title and right of possession.

The rule for judgment as to the automobile replevied should, therefore, be-made absolute.

And now, to wit, January 20, 1931, the rule for judgment for want of a sufficient affidavit of défense in replevin is made absolute as to the Windsor coupé automobile bearing motor No. 15S653 and chassis No. 13031.