text:
    Commonwealth v. Girard National Bank.

      Escheat — Payment of moneys held by banking institutions into State Treasury without escheat proceedings — Acts of May 16, 1919, and July 12, 1919 — Pennsylvania Constitution, art. i, sects. 8, 9 and 17 — Amendments Jt, 5 and U, Constitution of the United States.

    1. The Act of May 16, 1919, P. L. 177, providing for the payment into the State Treasury without escheat of money or property, held by any person, etc., national bank, etc., subject to escheat under the provisions of the Act of July 12, 1919, P. L. 926, amending earlier escheat statutes so as to make them applicable to moneys on deposit or securities or other property held for safekeeping by national banks, is not in violation of sections 8, 9 or 17 of art. i of the Constitution of Pennsylvania, or the 4th, 5th or 14th Amendments to the Constitution of the United States, in so far as it applies to national banks.
    2. To a petition by the Attorney-General, filed at the suggestion of the Auditor General in accordance with the procedure outlined by the Act of May 16, 1919, P. L. 177, an answer by a national bank, averring that, although no checks had been drawn against the accounts of certain depositors (to recover which for the State Treasury proceedings had been instituted) for fourteen years and upwards, the moneys had not been abandoned by the depositors, and that all persons so named in the petition as such depositors could be found if living, or, if dead, their next of kin or special representatives, and that, although the advertisement made was in accordance with the requirements of the act, it was not calculated to give actual notice to any of the persons included in the list or to others interested as beneficiaries, is insufficient.
    Petition of the Attorney-General for payment of unclaimed moneys into the State Treasury without escheat. C. P. No. 5, Phila. Co., Sept. T., 1920, No. 7321.

      William I. Schaffer and E. M. Eastman, for petitioner.

      R. Stuart Smith, for respondent.
    May 5, 1922.
   Martin, P. J.,

Petition filed by the Attorney-General of the Commonwealth of Pennsylvania, pursuant to the Act approved May 16, 1919, P. L. 177, to procure the payment into the State Treasury to the credit of the Commonwealth without escheat of all unclaimed money held by the Girard National Bank as a depository, which moneys it is averred are escheatable under the provisions of the Act approved June 7, 1915, P. L. 878, and the supplements thereto, in that they consist of deposits which have neither been increased nor decreased within fourteen years prior to Jan. 1, 1920, and no interest has been credited in the pass-book or on certificates of deposit of the respective depositors during said period; also, all moneys held in a fiduciary capacity by the Girard National Bank, which are escheatable under the provisions of the Act of June 7, 1915, P. L. 878, and the supplements thereto, consisting of moneys held and possessed under a dry trust or under an active trust that has terminated, the beneficiary, owner or owners of which or their whereabouts have been unknown for a period of seven years preceding Jan. 1, 1920; also, other moneys and property, consisting of dividends or profits declared by the bank to stockholders and not paid for three or more years, and debts and interest on debts due by said bank to creditors thereof and not paid for three years, and property held by the bank for the benefit of other persons which has been demandable by such persons for seven years or more.

A list of moneys and properties certified to be correct by the Auditor General was attached to the petition, having been reported to the Auditor General by the bank. It was averred that the Auditor General had given notice by mail and advertisement to the owners or persons entitled to claim the money, as required by section 6 of the Act of 1915, as amended by section 3 of the Act of July 6, 1917, P. L. 725, and a sufficient time had elapsed since said notice and advertisement to enable the owners to claim their property or money.

The petition further averred that the number and nature of the items of money and property reported to the Auditor General by respondent were such that it was desirable, in the opinion of the Auditor General, that proceedings be instituted to procure payment by respondent into the State Treasury to the credit of the Commonwealth without escheat, and to procure the sale of said property and the payment of the proceeds thereof into the State Treasury without escheat, in conformity with the provisions of the Act of May 16, 1919, P. L. 177, and that the Auditor General had accordingly suggested to your petitioner that he proceed in the matter. The petition contained prayers that a day be fixed for hearing, of which notice be given to the bank, and that the court order all unclaimed money appearing in the list attached to the petition be held, together with interest actually accrued and payable thereon, and forthwith paid into the State Treasury to the credit of the Commonwealth without escheat, and that all unclaimed chattels and securities appearing in the list be sold in such manner as the court may direct and the proceeds paid into the State Treasury to the credit of the Commonwealth without escheat. There was attached to the petition a list, marked Schedule A, of the names of depositors and the amount standing to their credit on the books of the company, which deposits had neither been increased nor decreased and interest on which had not been credited in the pass-books of the depositor at his request for fourteen or more consecutive years preceding Jan. 1, 1918.

Upon presentation of the petition, a day was fixed for hearing. An answer was filed by the Girard National Bank, averring that, although no checks had been drawn against the accounts for fourteen years and upwards, the moneys had not been abandoned by the depositors and that all the persons so named could be found, if living, or, if dead, their next of kin or special representatives. It was admitted that the list of names appearing in Schedule A had been published by the Auditor General, but respondent averred the advertisement was made in such a manner and form as not calculated to give actual notice to any of the persons included in the list or others interested as beneficiaries.

Respondent averred that the Act of Assembly approved May 16, 1919, P. L. 177, is unconstitutional, in that it is in violation of art. I, §§ 8, 9 and 17, of the Constitution of Pennsylvania, and in violation of the 4th, 5th and 14th Amendments of the' Constitution of the United States.

Petitions were also filed, praying for an order directing payment to be made, after hearing, into the State Treasury without escheat of money and property in the hands of the Penn National Bank, Union National Bank and the Fourth Street National Bank. Answers were filed, denying the right of the Commonwealth to demand the money, upon the ground that the act of assembly authorizing the payment to the Commonwealth, and providing the method of procedure, is unconstitutional, so far as it applies to national banks, and that the terms of the act providing for payment into the State Treasury without escheat are in violation of the contract and due process clauses of the Federal and State Constitutions, in requiring payment of the deposits in violation of the contract between the bank and its depositors.

This contention has been adversely determined by the Supreme Court in the case of Germantown Trust Co. v. Powell, 265 Pa. 71. The Act of June 7, 1915, P. L. 878, comprehends in its terms banks, safe deposit and trust companies and corporations organized and doing business under the laws of this Commonwealth, excepting mutual savings fund societies. The Act of July 6, 1917, P. L. 725, provided a method of procedure. These acts were held not to extend to national hanks, as they were not doing business under the laws of this Commonwealth; but the Act of July 12, 1919, P. L. 926, recited the failure of the legislature to use language in the earlier act to express an intent to make national banks subject to its provisions, and proceeded to enact an amendment to the act to make it specifically applicable to national banks; and the Act of May 16, 1919, P. L. 177, specifically includes in its terms national banks, and provides the method of procedure to obtain payment of the deposits to the Commonwealth without resorting to escheat.

In the State of Oregon there was an act for escheating unclaimed deposits after a period of seven years. This act was held by the Supreme Court of Oregon, in State of Oregon v. National Bank of Portland, 61 Ore. 51, to include national banks; and it was decided that its terms did not conflict with section 5241 of the United States Revised Statutes (U. S. Compiled Statutes, 1901, § 3517), which protects national banking associations from visitorial powers other than those authorized by the title national banks. In First National Bank of Louisville v. Kentucky, 9 Wallace, 354, 361, 362, it was said: “It certainly cannot be maintained that banks or other corporations or instru-mentalities of the Government are to be wholly withdrawn from the operation of state legislation. . . . The agencies of the Federal Government are only exempted from state legislation, so far as that legislation may interfere with or impair their efficiency in performing the functions by which they are designed to serve that Government. ... It is only when a state law incapacitates a bank from discharging the duties to the Government that it becomes unconstitutional.”

The provisions of the Act of May 16, 1919, P. L. 177, and the supplements thereto, which provided that when money is held by a bank or association which is escheatable, the Auditor General shall suggest to the Attorney-General to proceed to obtain the money after notice and advertisement is made, as required by the act under which such items are escheatable, now extends to moneys in the custody of national banks.

And now, to wit, May 5, 1922, after hearing, it appearing that there has been a compliance with the provisions of the acts of assembly relating to the subject, the prayers of the petitions are granted, and it is ordered and decreed that the money shown by the lists to be on deposit in the custody of the Girard National Bank, Penn National Bank, Union National Bank and Fourth Street National Bank, which have neither been increased nor decreased, and interest on which has not been credited in the pass-book of the depositor, at his request, for fourteen or more consecutive years next preceding Jan. 1, 1917, 1918, 1919 and 1920, a schedule of which is attached to the petitions filed, marked Schedule A, together with the moneys shown by Schedule C to be due to creditors and not paid for three or more successive years next preceding Jan. 1, 1917, 1918, 1919 and 1920, including all interest accumulated but not paid to the beneficiaries, on funds held as trustee, guardian, committee, executor, administrator, assignee, receiver or other fiduciary, not paid to the respective beneficiaries, together with interest actually accrued and payable at the date of filing the petition, be paid to the State Treasury by the Girard National Bank, Penn National Bank, Union National Bank and Fourth Street National Bank to the credit of the Commonwealth without escheat.


source: Caselaw Access Project

author: Gummey, J.,

license: Public Domain

text:
    Harding’s Estate.

      Wills — Construction—“All personal properties” held to include real estate.

    The words “all personal properties” in a holographic will by an unlearned man, wherein he left “all personal properties, good will & business also personal monies outstanding claims” to his wife absolutely (with the exception of certain pecuniary legacies) will be construed to include real estate in the absence of a residuary clause, so as to avoid an intestacy through which a large part of his property would go to collaterals toward whom he bore feelings of resentment at the time of making the will, by reason of his belief that they had influenced his mother to make an inadequate testamentary provision for him.
    Exceptions to master’s report. O. C. Phila. Co., Oct. T., 1920, No. 63.

      Powell, Ludlow & Schaeffer, for exceptions; Edgar S. McKaig, contra.
    May 26, 1922.
   Gummey, J.,

The testator, Alexander Harding, died March 19, 1919, leaving his last will, duly probated, the provisions of which are hereinafter set forth. He left to survive him a widow, but no issue.

On Oct. 13,1920, upon petition of the testator’s sister and brothers, alleging that he had died intestate as to his real estate, a citation was awarded to show cause why an inquest in partition should not be granted, to which the testator's widow made answer, denying the right of the petitioners to have partition as prayed for, and thereupon, a replication having been filed, the proceedings were referred to Philip L. Leidy, Esq., as master, who, after due hearing and notice to the parties in interest, submitted his report, in which he recommended that the inquest should be refused because he was of the opinion that the petitioners had no interest in the real estate they desired to have parted.

The exceptions to the report of the master are now before us, and the question for our consideration is whether the testator died intestate as to the real estate of which he died seized, or whether he devised it to his widow in fee, his will being as follows:

“My last Will & Testment September 5th, 1917. All personal properties, good will & business also all personal monies outstanding claims, I bequeath to my wife, Mary W. Harding — With the exception of fifteen hundred dollars to each of my step children, Catherine E. Means and Hazel P. Means, also two hundred dollars to Hiram Lodge No. 8, F. and A. M., for the Charity fund With the only request that they (Hiram Lodge No. 8) see that my grave is in order. Also one hundred & fifty to Germantown Commandery No. 82 for the Charity fund. Also my brother William S. Harding the sum of seven hundred.

“I make my wife executrix of my estate. Alexander Harding.”

“Witness Fred Appleton, George Nathan.”

Alexander Harding was by occupation a cabinetmaker, and he and his father, trading as J. S. Harding & Son, had built up a profitable business as dealers in antique furniture at No. 5109 Germantown Avenue. After the death of his father, Alexander Harding continued to carry on the business at the same address, leasing the premises from his mother, Annie Harding, who held the record title. On March 18, 1913, he executed a will which had been prepared by an officer of the Chelten Trust Company; it was signed with the usual formalities and lodged with the trust company, in whose custody it remained until after his death. This will bequeathed his business to his brother William, with certain qualifications, and after a gift of $200 to each of his brothers, John and Henry, and the gift of a like amount to his sister, Mrs. Chambley, the testator devised and bequeathed the residue of his estate to his wife, Mary W. Harding, absolutely, and appointed her and the Chelten Trust Company as executors.

On Sept. 5, 1917, Alexander Harding wrote the holographic will which is the subject of the present discussion and which is set forth above in full. In it he makes no mention of Mrs. Chambley nor of any of his brothers except William, to whom he bequeathed a legacy of $700 instead of the business given him by the former will.

In the interim between the execution of the will of 1913 and the one of 1917, any feeling of affection which the testator might have had for his brothers and sister appears to have been replaced by a feeling of resentment, except, perhaps, as to his brother William. He attributed to them, and particularly to his sister, Mrs. Chambley, an influence over his mother in the making of her will, the provisions of which were not as favorable to him as he thought they should be. This feeling of resentment also extended to the officers of the Chelten Trust Company and reached its climax when that company, as executor of his mother’s will, gave him notice to vacate premises No. 5109 Germantown Avenue, as a result of which he subsequently purchased the property. He also had an extreme dislike for members of the legal profession, and this fact, together with his resentment against the officers of the Chelten Trust Company, probably explains why, when he desired to change his will, he wrote a new will himself, and instead of obtaining from the trust company his first will and destroying it, revoked it by writing upon a copy of it which he had in his possession the following words:

“Original of this in Chelten Trust Co. hands this will is now null & void. Sept. 5th, 1917. Alexander Harding.”

The circumstances immediately surrounding the execution of his last will are as follows: George Nathan, who was one of the witnesses to the will, said, referring to the testator: “He was over in my house one evening when Mr. Fred Appleton was present, and he wanted us to go over to his place of business to witness the will.” This they did, the witness further testifying to the effect that the testator wrote the will in his (the witness’s) presence and that of Mr. Appleton; that the testator then signed it in their presence; the witnesses also signed their names, and then all three returned to the witness’s house, where they had a game of penny-ante.

When a will is executed, the natural and reasonable presumption is that the testator does not intend to die intestate as to any part of his property (Miller’s Appeal, 113 Pa. 459), and placing ourselves in the position of this testator at the time he wrote the -will (see Shaffer’s Estate, 262 Pa. 15), and taking into consideration the circumstances surrounding him at the time of its execution (Kempton’s Estate, 26 Dist. R. 441; Hermann’s Estate, 220 Pa. 52), we find a state of facts confirming this presumption and not rebutting it.

Analyzing the will itself, the controversy centers upon the intention which the testator had in mind when he used the expression “All personal properties.”

In the carefully prepared report of the master in which the cases are reviewed, it is pointed out that the word “all” has been held sufficient to pass real estate (Clingan v. Mitcheltree, 31 Pa. 25), and that the word “property” is a word of broad signification, and, standing alone, would include real estate (see George v. Railroad Co., 47 Pa. Superior Ct. 520); so that if the testator had said “all property,” it cannot be doubted but that real estate would have passed by the gift. The testator did not, however, use property in the singular, but in the plural, properties, and, quoting from the master’s report (page 14) :

“Had the testator been speaking of his personal property collectively, as is commonly done in wills, he, too, would have employed the singular property, as would any one who meant to refer to personal property.

“The importance of this is emphasized by analogy to Hildebrant’s Estate, 268 Pa. 1S2 (1920), which turned on this very point, the use of the plural form of expression, Mr. Justice Simpson saying: ‘Moreover, while it is, of course, true that a son may be held to be a relative, even though he is called ‘son’ everywhere else in the will, and though popularly he never would be called a relative, yet certainly a son cannot be ‘relatives,’ the plural form of expression necessarily excluding him.’

“Whatever restraining force the word personal would have on property, to confine that word to the species of property which is not real property, it cannot have on properties, because the plural form of expression necessarily excludes its being restrained to a single kind of property.”

We are thus brought to the same conclusion as the master, that the testator used the word “personal” in the sense of “my;” again quoting from his report (page 12) with reference to the use of the word “personal:”

“While to every law-trained mind it primarily means a species of property, it does not necessarily convey the same meaning to the mind of the layman not familiar with legal terms. It is a familiar word of everyday life. We speak of our personal friends, meaning friends intimately associated with us as individuals; our personal possessions, meaning those things intimately associated with the person; our personal home, meaning our home owned by us or my home owned by me, etc.”

Evidently the testator in his own mind drew a distinction between so much of his estate as was represented by his business and that portion of his estate which was not invested in the business. This is shown by the manner in which he classifies his estate in the will, disposing, as he does first, of “all personal properties,” then of the “good will & business,” and then “all personal monies” and “outstanding claims.” For “personal monies” we may well substitute “my monies,” by which he may have intended to refer to the fact that he had two bank accounts, or, what is most likely, he may have meant by “monies” to include not only his bank accounts, but also the few bonds and other personal property which he owned outside of his business; for “money," in its popular sense, is sometimes used as equivalent to property. See Jacobs’s Estate, 140 Pa. 268; Marshall’s Estate, 20 Dist. R. 265.

This view is also consistent with the size and character of the testator’s estate. From statements made by counsel at the argument, we understand that the equity in the testator’s real estate over and above encumbrances is approximately $12,000, while the appraised value of his personal estate amounts to $10,417.85. Classifying the personal estate in the manner indicated by the will, we find that the appraised value of those items which would properly pass under the designation “good will & business” amounts to $6451.21, while “personal monies” might be held to include cash, $2973.50, and sundry miscellaneous items (including $300 Liberty Bonds, one share of stock, $100, and household furniture, $252), aggregating $993.14; and if we were to adopt the construction suggested by the exceptants, this last item, $993.14, would be all that would pass under the designation “all personal properties,” which would seem an absurdity, particulary when we remember that the legacies bequeathed by the will aggregate $3850, to pay which would require practically all of the testator’s personal estate except his investment in the business. On the other hand, if we read personal as my, the expression “all personal properties,” when read in connection with the rest of the will, makes the whole harmonious. Said the present Chief Justice in Long’s Estate, 270 Pa. 480, 487: “We need only say of the many authorities cited to us by counsel that precedents are of little value in the construction of wills, because, when used under different circumstances and with different context, the same words may express different intentions. When the intent of the testator, and by that is meant his actual intent, can be fairly gathered from his words, the fact that another testator has used the same words with a different meaning is of no avail. Neither precedents nor rules of construction can override the testator’s expressed intent.”

We agree with the conclusion reached by the master, that the petition for partition should be dismissed for lack of interest in the petitioners, and that under his will the testator’s widow, Mary W. Harding, takes a fee in the real estate of which he died seized. We, therefore, enter the following

Decree.

And now, May 26, 1922, the exceptions to the report of the master, filed on behalf of John Harding, Mary Jane Chambley, Harry Harding and William S. Harding, are dismissed; the petition for an inquest in partition is likewise dismissed, and the costs of the proceedings, including the master’s fee, are charged against the real estate, for the reason that it was necessary to have a judicial construction of the will in order to determine the question of title.


author: Barratt, P. J.,

text:
    Saunders’s Adoption.

      Children — Adoption—Welfare of child — Abandonment by father — Act of May 28, 1915.

    H. was born May 16, 1909; his mother died in 1911. From 1911 until June 29, 1912, he lived with his paternal grandparents; from June 29, 1912, until May, 1917, he lived with his father "and stepmother. In May, 1917, he was placed by his father in the custody and care of his maternal uncle and aunt, with whom he has since resided in Kent County, Del. On Dec. 5, 1921, his father was killed in a railway accident, and the widow recovered $6000, and H. $3000, which was paid to his guardian. Neither his father nor his stepmother had made any substantial contribution to his maintenance while with his uncle and aunt, by whom he was supported and well cared for. On March 21, 1922, his stepmother filed a petition under the Act of May 28, 1915, P. L. 580, for leave to adopt him. Answers were filed by his paternal grandparents and his uncle and aunt, averring, in substance, the above facts and objecting to such adoption: Held, (1) that, as the boy had been placed with his uncle and aunt by his father, had been well cared for by them in the past, and their custody had been approved by his paternal grandparents, it did not appear that his welfare would be promoted by his adoption by his stepmother, and the petition should be refused. (2) That by placing the boy in the custody of his uncle and aunt and withdrawing his guidance and protection from him, his father had constituted his uncle his next friend under the act, and so made his consent to the adoption essential .
    Petition for adoption of minor. C. P. No. 2, Phila. Co., March T., 1922, No. 2844.

      W. M. Hussie, for petitioner; John V. McCann, for Thursa Warren.

      Ruby R. Vale, for Simon P. Saunders et ux. and George Russ et ux. .
    May 17, 1922.
   Barratt, P. J.,

This matter comes before the court upon the petition of Ella T. Saunders, the individual answer of Thursa Warren, and the joint answer of Simon P. Saunders and Martha Saunders, his wife, and George Russ and Lulu Russ, his wife.

As the proceeding was initiated by the petition, and since no replication has been filed, the matter may properly be disposed of upon the petition and answers, with the effect of holding true all the matters set up in the respective answers. This is a familiar rule, and it is sufficient to refer to Stoner v. Railroad Co., 229 Pa. 521, 525 (1911).

Such being the state of the record, from it we find the facts to be:

1. Harold Alonzo Saunders.was born May 16, 1909.

2. That Harold Alonzo Saunders is the minor child of John L. Saunders and Elsie Saunders.

3. That the said John L. Saunders departed this life, intestate, on Dec. 5, 1921, his death having been caused by an accident on the Philadelphia & Reading Railway Company, while the said John L. Saunders was a passenger on its lines.

4. That Elsie Saunders, mother of the said Harold Alonzo Saunders, died sometime in the year 1911.

5. That subsequent to the death of the said Elsie Saunders, the said John L. Saunders married the present petitioner on June 29, 1912.

6. That the respondents, Simon P. Saunders and Martha Saunders, are the paternal grandparents of the said Harold Alonzo Saunders.

7. That the respondent, George Russ, is the brother of the said Elsie Saunders, and, therefore, is maternal uncle of the said Harold Alonzo Saunders, and the respondent, Lulu Russ, is the wife of the said George Russ.

8. That the respondent, Thursa Warren, is the first cousin of John L. Saunders, father of Harold Alonzo Saunders.

9. That from the time of his birth on May 16, 1909, until sometime in the year 1911, the minor, Harold Alonzo Saunders, was in the custody and control of his parents, John L. Saunders and Elsie Saunders, and so remained in their custody until the death of his mother, Elsie Saunders, occurring in the year 1911.

10. That from the year 1911 until about June 29, 1912, the said Harold Alonzo Saunders remained in the custody and control of his paternal grandparents, Simon P. and Martha Saunders.

11. That for nearly five years, to wit, from June 29, 1912, the date of the marriage between John L. Saunders and the present petitioner, Ella T. Saunders, the said Harold Alonzo Saunders (named Harold L. Saunders in the petition to this court) remained in the custody and control of his father and second wife until on or about May 10, 1917, when, at the instance and with the consent of the said John L. Saunders, his father, and Ella T. Saunders, his present wife and petitioner, the said Harold Alonzo Saunders was delivered into the custody, care and control of George Russ and Lulu, his wife, the said George Russ being brother of Elsie Saunders and maternal uncle of the minor, Harold Alonzo Saunders.

12. That the said minor, Harold Alonzo Saunders, remained in the care, custody and control of the said George Russ and his wife from May 10, 1917. The said Harold Alonzo Saunders, at the request of Ella T. Saunders, his stepmother, visited the said Ella T. Saunders during the Christmas holidays of 1921, and so remained for a period of about three weeks, at the termination of which time he returned to the said George Russ and his wife, in whose custody, care and control he still is.

13. That the respondents, George Russ and Lulu Russ, reside at or near Harrington, Kent County, in the State of Delaware.

14. That throughout the period in which the said minor, Harold Alonzo Saunders, resided with and was in the custody, care and control of his maternal uncle, to wit, from May 10, 1917, as aforesaid, his father, the said John L. Saunders, contributed practically nothing towards his keeping and maintenance, he having been reared and educated at the expense of the maternal uncle, George Russ.

15. That by reason of the death of John L. Saunders on Dec. 5, 1921, while a passenger on the Philadelphia & Reading Railway, the sum of $9000 has been recovered under the act of assembly in such cases provided, of which sum this petitioner is entitled to two-thirds and the minor to one-third, or $3000.

16. That on March 21, 1922, Ella T. Saunders filed a petition in this cause, praying leave to adopt the minor, Harold Alonzo Saunders, therein called Harold L. Saunders, according to the provisions of the acts of assembly in such case made and provided, thereby agreeing to confer upon the said minor all the rights of a child actually born to her, the said Ella T. Saunders.

17. That on April 8, 1922, upon petition presented by George Russ and Lulu Russ to the Orphans’ Court of the State of Delaware, in and for Kent County, for that purpose, the Orphans’ Court of Delaware, in and for said Kent County, duly made its decree, bearing said date, wherein and whereby, in substance and effect, it decreed the adoption of the minor by the said George Russ and Lulu Russ, conferring upon the said minor all the rights of a lawful and natural offspring of the said petitioners. A copy of the petition and decree, duly certified under the Acts of Congress, is attached to the joint answer above referred to.

18. That the respondent, George Russ, presented a second petition to the Orphans’ Court of the State of Delaware, in and for the County of Kent, praying that The Peoples’ Bank of Harrington, in the State of Delaware, be appointed guardian of the estate of the said Harold Alonzo Saunders, the prayer of which petition was, by decree, entered by that court on the said April 8, 1922, duly appointing the said The Peoples’ Bank of Harrington guardian of the estate of the said minor, being first required to qualify for said office by the entry of a bond in the sum of $6000, which bond was duly entered by the said The Peoples’ Bank of Harrington, Delaware, as surety. A copy of the said proceedings and the decree therein is duly authenticated under the Acts of Congress and is attached and made a part of the joint answer.

19. Whether the petitioner, Ella T. Saunders, is able to provide a home for the said minor, and is able to care for and maintain him in the manner conducive to his welfare, and will perform all the duties of parent toward him, are not admitted by the respondents, but do not call for a finding.

20. That the respondent, George Russ, is able to provide a proper home for the said minor, and is able to care for and maintain him in the manner conducive to his welfare and will perform all the duties of a parent toward him.

Discussion.

This is a proceeding for adoption under the Acts of May 19, 1887, P. L. 125, and May 28, 1915, P. L. 580. The petition is presented by the stepmother of the child, a colored boy just thirteen years of age. The boy’s father died on Dec. 5, 1921, as the result of a railroad accident. Recovery was had of the sum of $9000 from the railroad company, The Philadelphia & Reading Railway, and of this sum $3000 is the boy’s share.

The findings of fact state the essentials of the case, so far as the record shows. No testimony has been taken, and the findings are based on the petition and answers, excepting as to race, which, if material, may be rested on the undisputed statement of counsel.

The boy concerned was born on May 16, 1909, and resided with his father and mother until about two years old, when his mother died. His father then gave him into the care of his paternal grandparents, Simon P. and Martha Saunders, who had the care of him until his father remarried on June 29, 1912. He was by that time three years of age. His father took him back, and he was cared for and supported by his father and stepmother, this petitioner, for a little less than five years, when, on or about May 10, 1917, his father and stepmother delivered him to the care and custody of his maternal uncle and aunt, George and Lulu Russ, at or near Harrington, in Kent County, in the State of Delaware. Since so doing, the father and stepmother have done nothing for the support of the child, excepting that the father, during the period of almost five years that he lived thereafter, contributed $25, and the stepmother, this petitioner, $5, for the child, an average of about $6 a year, or 50 cents a month.

The care and custody of the child by the said maternal uncle and aunt was at the instance of the child’s father in 1917, and has the approval of the lad’s paternal grandparents and, of course, of the maternal uncle and the latter’s wife. There is no pretence that the child has not had proper care. The acts of assembly require that the court, before decreeing the adoption of the child, shall be “satisfied that the welfare of such child will be promoted by such adoption.”

It may be that with the acquisition of $6000, above recited, the petitioner, the boy’s stepmother, may afford the colored child such opportunity as will “promote” his welfare. Nothing appears as to this, and it is purely matter of surmise and speculation. The share of $3000 going to the child as his own portion is or may be a distinct “promotion” of his welfare of itself, and the court is not authorized, nor would it be willing, to direct such a radical and vital change with the child as this petition contemplates until “satisfied” that the child’s welfare will be promoted.

Nothing has been shown as to this. The boy is where his father placed him with the approbation of his near blood relatives. There is no averment that he has not proper care. In the exercise of its discretion reposed in it by the Act of 1915, the court, therefore, must refuse this petition.

Some interesting points of law suggest themselves in this case, but they do not require decision here, since this case is ruled by the discretion of the court as above.

The Act of May 28, 1915, P. L. 580, already mentioned, in section 7, requires the consent of the surviving parent, or, if none, of the next friend of the child, to the adoption. Just when a stepmother may be regarded as a surviving parent or next friend within the meaning of this requirement need not be determined in this case. Both she and the boy’s father intrusted the lad for five years to the care and rearing by his maternal uncle in a distant town in another state. By so doing, and by their withdrawal from any guidance or protection of the child, they practically constituted the uncle the surviving parent or next friend, so it seems to this court. If such be the status of the uncle, his consent is essential to the present adoption. Moreover, the lad’s paternal grandparents, Simon P. Saunders and Martha Saunders, will not be overlooked. The answers filed indicate a warm and constant interest on their part in the child’s welfare. Some respect and regard to their attitude in this proceeding seems appropriate under the statute and otherwise. Yet this uncle, these grandparents, far from consenting to the adoption proposed, resist it. See, in this connection, In re Adoption of Harry Bastin, Vandermis v. Gilbert, 10 Pa. Superior Ct. 570 (1899), wherein the maternal grandmother was recognized in her petition for the annulment of a decree of adoption; and see Holmes v. Derrig, 127 Iowa, 625 (1905).

Another interesting question suggested is that arising from the residence of the child in the State of Delaware. The decisions in the various states on this are not altogether satisfactory in clearness. In Arkansas and in Georgia, under their statutes, a residence of the child in the county of the proposed adoption seems essential. See Morris v. Dooley, 59 Ark. 483 (1894); Rives v. Sneed, 25 Ga. 612 (1858).

In some states the residence of the party petitioning for the adoption seems to be controlling. See Abney v. De Loach, 84 Ala. 393; Woodward’s Appeal, 81 Conn. 152.

The Pennsylvania Act of May 4, 1855, P. L. 430, provided that the person desirous to adopt might present the petition in the county where he might reside. This, however, was held to be directory only in McQuiston’s Adoption, 238 Pa. 304 (1913), and the case concerned parties who were all Pennsylvania residents, so that no question of jurisdiction as between states arose.

The question as to residence may require consideration when a controlling factor in the case.

The question whether the father and stepmother, petitioner here, had abandoned the child might well be considered, were there no objection otherwise to the proposed -adoption; for if it were shown that this petitioner had been party to an abandonment of the child, that certainly would have a decisive influence against her present petition. The child for five years lived away from his father and his stepmother. They exercised no supervision over him, unless in the way of assuring themselves that he was being well brought up by the maternal relatives to whom they intrusted him. See, in this, Winans v. Luppie, 47 N. J. Eq. 302, reversing 37 N. J. Eq. 245; Von Beck v. Thomsen, 44 App. Div. (N. Y.) 373; Matter of Larson, 31 Hun (N. Y.), 539; In re Maude Fay Olson, 3 Ohio Nisi Prius, 304; Furgeson v. Jones, 17 Oregon, 204 (11 Am. St. Rep. 808; 3 L. R. A. 620); Nugent v. Powell, 4 Wyom. 173 (62 Am. St. Rep. 17; 20 L. R. A. 199).

Under the Pennsylvania Statute of May 19, 1887, § 1, P. L. 125, a parent neglecting or refusing to provide for a child for the period of one year or upwards loses his right to refuse consent; and see, also, section 7 of the Act of May 28, 1915, P. L. 580.

The opinion of Dixon, J., in Winans v. Luppie, 47 N. J. Eq. 302, is instructive, especially in the present case.

It was held not to have been abandonment where a father intrusts the care of the child for six years to the mother: Johnson v. Terry, 34 Conn. 259. The question is one of circumstance and intent, and where essential will be considered with the care due to it as vitally involving the welfare of the child: Peterson’s Estate, 212 Pa. 453 (1905).

The minor in the present case was adopted in the State of Delaware on April 8, 1922, by one of the present respondents, George Russ, his maternal uncle, by decree of the Orphans’ Court of Kent County, State of Delaware; and on the same day the Delaware court appointed The Peoples’ Bank of Harrington, in the State of Delaware, guardian of the minor’s estate. It is contended by the respondents that under the Full Faith and Credit Clause of the United States Constitution, art. IV, § 1, all the courts must respect that judicial action. The petition in the present case was filed on March 21, 1922, a short time prior to the action of the Delaware court.

To some extent the decree of adoption in another state is binding under the United States Constitution. See Hood v. McGehee, 189 Fed. Repr. 205; 237 U. S. 611.

As the prayer of the petition in this case is refused, this aspect will not be considered.

It is enough to say, under the Statute of 1915, that the court is not satisfied that the welfare of the child will be promoted by taking him from the relative with whom he was placed by his own father. Moreover, the child is thirteen years of age. His own desires should receive some consideration. In some states — not all — the statutes provide that the child himself must consent when above a certain age, usually twelve or fourteen. See 1 Corpus Juris, Article Adoption, page 1385. No wish on his part for a change has been made to appear. Petition refused.


author: Koch, J.,

text:
    Commonwealth v. Walters.

      Criminal law — Tramping growing crops — Act of June 18, 1895 — Justice of the peace — Ceritorari—Laches—Special allocatur.

    1. Where a person is convicted before a justice of the peace of tramping upon defendant’s growing- crops, in violation of the Act of June 18, 1895, P. L. 196, and, instead of paying the fine, enters into recognizance to appear at the next Court of Quarter Sessions, and six days after the conviction before the justice obtains a writ of certiorari, which was not allowed by special allocatur, the writ will be quashed because it was taken without proper allowance by allocatur.

    2. Such a proceeding being penal for the violation of the statute, a special allowance for a writ of certiorari is essential.
    9. The Commonwealth in such case cannot be charged with laches in not promptly moving to quash the writ, where it does not appear that, after defendant had entered his recognizance to appear in court, the Commonwealth had any notice of the certiorari proceedings.

      Certiorari to justice of the peace. C. P. Schuylkill Co., Sept. T., 1921, No. 264.
    Otto E. Farquhar, for plaintiff; J. 0. Ulrich, for defendant.
    Dec. 5, 1921.
   Koch, J.,

A perusal of all the papers of record in this case shows that the defendant was arrested on July 21, 1921, for a violation of the Act of June 18, 1895, P. L. 196; that the information upon which the warrant for the defendant’s arrest was based charged the defendant with entering a field of Jacob L. Seitzinger, in the Borough of Tamaqua, and tramping on the growing crops therein, and that a hearing was had and the defendant was convicted of walking over the prosecutor’s alfalfa and fined $5 by an alderman in the City of Pottsville on July 28, 1921. It further appears that the defendant refused to pay the fine and entered into a recognizance in the sum of $300, conditioned for his appearance at the next term of the Court of Quarter Sessions of the Peace in this county to answer said charge. The record also shows that the defendant, notwithstanding his immediate entry of bail to appear at the next Court of Quarter Sessions of the Peace, later, to wit, on Aug. 4, 1921, obtained the present writ of certiorari. The next Court of Quarter Sessions of the Peace did not begin until Sept. 12, 1921, but the return to the writ of certiorari was filed in the Court of Common Pleas on Sept. 8, 1921. The exceptions in the certiorari proceedings were not filed by the defendant until Oct. 19, 1921, and on Oct. 24th plaintiff moved to quash the writ because it does not appear of record that a special allocatur had been obtained for the issuance of the writ. The defendant thereafter, to wit, Oct. 31st, moved to have the motion to quash dismissed and for an allocatur nunc pro tunc, and thereupon obtained a rule to show cause why the motion to quash should not be dismissed and an allocatur nunc pro tunc allowed. To the rule just referred to the Commonwealth made answer on Nov. 7th, when this case was called up for argument. The defendant’s motion for an allocatur nunc pro tunc impliedly concedes that this action is criminal in its nature and that, therefore, a writ of certiorari is not a mere matter of course under the provisions of the Act of April 26, 1855, P. L. 304, which provides that: “No special allowance of a writ of certiorari to a justice of the peace or alderman shall be held requisite to the maintenance of such writ.” The Act of 1855 has reference only to civil actions: Com. v. Antone, 22 Pa. Superior Ct. 412. Where an action is brought in the name of the Commonwealth to recover a penalty for a statutory offence, it is in its nature and effect a criminal action: Com. v. Betts, 76 Pa. 465. And when the nature of the action is penal for the violation of a statute, a special allowance for a writ of certiorari is essential: Com. v. Antone, 22 Pa. Superior Ct. 412; Com. v. Jacobs, 34 York Leg. Record, 141; Com. v. Mattern, 24 Pa. C. C. Reps. 655; Rubel v. Paint Borough, 14 Dist. R. 117.

The defendant argues that, as the Commonwealth did not promptly move to quash the writ, this delay should be taken as a waiver of its right so to do. “It would seem that practice would require an immediate motion to quash:” Bethlehem City v. Catalano, 30 Dist. R. 824. But here the defendant, by entering into a recognizance for that purpose, as is provided in the 2nd section of the-Act of June 8, 1881, P. L. 82, at first attempted to carry this case into the Court of Quarter Sessions of the Peace, there “to answer said complaint on a charge of misdemeanor.” If that proceeding was valid and regular, it seems to us that the defendant was hardly in a position to also move the case into the Court of Common Pleas. But if it was legally possible to move the case into two different courts at the same time, it could not be successfully contended that the Commonwealth had such notice of the second proceeding as to charge it with laches in not promptly moving to quash. After the defendant appealed the case to the Court of Quarter Sessions of the Peace, the plaintiff was not bound to keep track of the proceeding before the alderman in order to ascertain what other move the defendant might make. We think that, after the appeal was taken to the Court of Quarter Sessions of the Peace, the Commonwealth’s next duty was to appear in that court for the disposal of that appeal. Had the defendant given the Commonwealth notice of his attempted certiorari proceeding, it would have been the Commonwealth’s duty to promptly move to quash if it thought proper to do so. There is nothing before us to show that the Commonwealth had notice, or even a suspicion, of such a proceeding, and it is, therefore, not chargeable with laches. There is naught before us to show how long before its motion to quash was filed the Commonwealth had actual notice of the proceeding. In its answer to the rule the Commonwealth avers: “That the motion to quash the said writ was duly made, presented and filed before argument was made on said certiorari.” As to when the plaintiff received notice of this proceeding is a matter of fact which should have been brought upon the record in accordance with the provisions of subdivision 4 of our 32nd rule of court. We are, therefore, in no position to act favorably upon defendant’s motion and rule to dismiss and for a special allocatur nunc pro tunc. In view of what precedes, we make the following order:

Dec. 5,1921, the defendant’s motion and rule are discharged, and the plaintiff’s motion to quash the proceedings is allowed and the writ of certiorari is quashed.

From M. M. Burke, Shenandoah, Pa.


author: Alter, Att’y-Gen.,

text:
    Interstate Liquor Transportation.

      Liquor laws — Transportation of liquor into State — Woner Act of May 5, 1921 — Reed Amendment.

      1. Under the Act of May 5, 1921, P. L. 407, Pennsylvania is a state “the laws of which . . . prohibit the manufacture or sale therein of intoxicating liquor for beverage purposes” within the meaning of the Reed Amendment of the Volstead Act of Congress (U. S. Stat., vol. 39, page 1069).
    2. A person moving his residence into this State, and attempting to bring liquor with him for beverage purposes, violates the laws of Pennsylvania.
    Attorney-General’s Department. Opinion to Rev. J. T. Davis, Federal Prohibition Director, Philadelphia.
    May 1, 1922.
   Alter, Att’y-Gen.,

I have received your letter of April 11, 1922, inquiring “whether the construction of the Pennsylvania State law is such as to come within the scope of the Reed Amendment (U. S. Stat., vol. 39, page 1069) and so as to prohibit the importation of liquor for beverage use upon the permanent change of residence of the owner.”

Attached to your inquiry is a copy of Pro. Minn., No. 224, entitled “Issuance of Permits Form 1410 B for Transportation in Interstate Commerce of Intoxicating Liquor for Beverage Use,” which states that permits may be granted under Federal regulations for transportation of liquor for personal use into any state or territory excepting those states which come within the Reed Amendment.

The Reed Amendment provides, inter alia, as follows: “Whoever shall order, purchase or cause intoxicating liquors to be transported in interstate commerce, except for scientific, sacramental, medicinal and mechanical purposes, into any state or territory, the laws of which state or territory prohibit the manufacture or sale therein of intoxicating liquors for beverage purposes, shall be punished as aforesaid.”

The Woner Prohibition Enforcement Act of Pennsylvania (Act of May 5, 1921, P. L. 407) provides in section 20 as follows: “That from and after the passage of this act, any person who shall manufacture, sell, offer for sale, furnish, transport, import, export or possess any intoxicating liquor within the State for beverage purposes, except as hereinafter provided, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be sentenced to pay a fine of not less than one hundred dollars, nor more than five thousand dollars, or undergo an imprisonment of not more than three years, or both, at the discretion of the court.”

The phrase “except as hereinafter provided,” as used in the above section, has reference only to the provisions of section 22, which are as follows: “It shall not be unlawful to possess intoxicating liquor in one’s private dwelling, provided such liquor is for use only for the personal consumption of the owner thereof and his family residing in such dwelling, and of his bona fide guests when entertained by him therein, which entertainment shall not be deemed an unlawful furnishing. The term ‘private dwelling’ shall be construed not only in its ordinary sense, but also to include the room or rooms used and occupied, not transiently, but solely, as a residence, in an apartment-house, hotel or boarding-house.”

These sections make it clear that Pennsylvania is a state “the laws of which . . . prohibit the manufacture or sale therein of intoxicating liquor for beverage purposes,” and which, therefore, falls squarely within the language of the Reed Amendment. The Woner Act thus operates with the Reed Amendment to prevent the importation of intoxicating liquor into this State for beverage purposes.

Whether the Reed Amendment will operate differently in states where the prohibition laws permit the transportation of liquor for personal use upon a permanent change of the owner’s residence, is a question which depends upon the construction of that amendment, and not of the State law, and as such is solely within the province of the Federal authorities. But this question cannot arise in relation to Pennsylvania, for the Woner Act does not permit such transportation.

I accordingly advise you:

1. That Pennsylvania is a state “the laws of which . . . prohibit the manufacture or sale therein of intoxicating liquor for beverage purposes” within the language of the Reed Amendment.

2. There is no provision in the Woner Prohibition Enforcement Act of Pennsylvania permitting the transportation of liquor into the State for personal use upon the owner’s change of residence. It is quite clear that any one moving his residence into the State and attempting to bring liquor with him for beverage purposes would be guilty of a violation of the law of the State.

From Guy H. Davies, Harrisburg, Pa.


author: Broomall, J.,

text:
    Herbert v. Reddy.
    - Real estate — Contract for sale of — Rescission—Withdrawing deposit.

    Where one contracting to purchase real estate deposits the purchase money with a trust company, with a direction to make settlement for him upon receipt of a properly executed deed, the purchaser cannot thereafter withdraw the money if a deed is executed and delivered to the trust company within a reasonable time.
    Motion by plaintiffs for a new trial. C. P. Delaware Co., June T., 1917, No. 397.

      W. R. Fronefield, for motion; J. E. McDonough, contra.
    Nov. 26, 1921.
   Broomall, J.,

The questions involved in this case are these: If an owner of real estate agrees to sell it to a buyer and to convey it to his nominees upon the payment of the purchase money, and the buyer agrees to pay the purchase money on the delivery of deeds, and they come to a trust company to carry out their contract, and, in pursuance thereof, the buyer deposits with the trust company the purchase money to be paid to the seller upon the execution of deeds and delivery of them to the trust company, and the trust company is directed to prepare deeds and the seller executes a contract in writing for the sale of the real estate to the buyer—

1. Can the buyer withdraw the deposit after the execution and delivery of deeds to the trust company by the seller to the buyer?

2. Can the buyer withdraw the deposit before the expiration of a reasonable time after the execution of such deeds?

These questions arise out of the following circumstances: The plaintiff and defendant negotiated with respect to the purchase and sale of certain lots of land. The result of their negotiations was reduced to writing, and on Feb. 5, 1917, they went to the Cambridge Trust Company for the purpose of carrying out their negotiations, and they there executed a contract for the sale and conveyance of the lots of land upon the payment of the purchase money, $962. At the same time the plaintiff deposited with the trust company, at the suggestion of the defendant, the sum of $962, accompanied by this letter:

“Beg to hand you herewith in cash the sum of nine hundred and sixty-two dollars, with which you are to make settlement of my purchase from William H. Reddy of property at Garden City, designated, etc., etc. You are to pay this money to Mr. Reddy and make settlement for me only upon receipt of properly executed deeds to Sarah E. Herbert for lots 13 and 14 in Block J, and properly executed deed to Joseph Franklin Herbert’ for lots Nos. 15 and 16 in Block J. Very truly yours, H. J. Herbert.”

The following receipt was subjoined to this:

“Received at Chester, Pa., 2-5-17, the above-mentioned nine hundred and sixty-two dollars for above settlement.

Cambridge Trust Company, W. S. Blakeley, Jr.,

Assistant Trust Officer.”

Orders were given to prepare the deeds, and they were promptly prepared.

It appeared that on Feb. 8, 1917, the deeds having been prepared, they were executed by the defendant and in the hands of the trust company, awaiting execution by the attorney-in-fact for the defendant’s wife. On that day the plaintiff demanded of the trust company a return of his money. The attorney-in-fact for defendant’s wife executed the deeds on the same day very close in time to the plaintiff’s demand. It was difficult to determine which preceded the other. This question was left to the jury with directions that if they found that the deeds were fully executed and in the hands of the trust company before plaintiff demanded the return of the money, their verdict should be for the defendant.

We were of the opinion on the trial, and so instructed the jury, that even if the demand for the money preceded the full execution of the deeds, yet, if the deeds were executed within a reasonable time, the defendant was entitled to their verdict. The question of reasonable time was referred to the jury.

By the plaintiff’s paper of Feb. 5, 1917, the defendant acquired the interest of a conditional beneficiary in the deposit. There was no power of revocation reserved. The defendant had gone forward with the resolution of the condition by executing the contracts of sale, and by at least executing the deeds in the hands of the trust company himself. No question was raised but that this was done within a reasonable time. No question was raised but that the full execution of the deeds was done within a reasonable time. Under these circumstances, we were of the opinion that the plaintiff had no right to a return of his money.

By the pleadings, the question to be determined by the jury was to whom this money belonged. The trust company having been sued by both the plaintiff and the defendant, applied to the court, disavowing any interest, for an interpleader issue. In pursuance of this, the above stated issue was granted. The jury were instructed that if they were of opinion with the plaintiff, their verdict should be that they found that the money belonged to the plaintiff. On the other hand, if they were with the defendant, their verdict should be in his favor, finding the money belonged to the trust company to carry out the terms of the mandate of the plaintiff of Feb. 5, 1917. It was thought best to have the verdict, if it was in favor of the defendant, put in this form, so that the completed settlement could be made by them with the defendant. No one but the defendant can complain of this.

The plaintiff’s motion for a new trial is refused.

From A. B. Geary, Chester, Pa.


author: Endlich, P. J.

text:
    Albrecht v. Flamisch.

      Practice, C. P. — Assumpsit—Plaintiff’s statement — Copies of contract— Practice Act of 1915.

    1. It is an indispensable prerequisite to entitle a plaintiff to demand an affidavit of defence or to ask for judgment in default of such, that he set forth his claim in the precise manner indicated and prescribed by the Practice Act of May 14, 1915, P. L. 483.
    2. Plaintiff, in an action of assumpsit to recover balance due on a sale of whiskey, is not entitled to judgment for want of a sufficient affidavit of defence where he fails to attach to his statement copies of certificates which are a material part of the contract on which the action is based, as required by section 5 of the Practice Act of 1915.

      Assumpsit. Rule for judgment for want of a sufficient affidavit of defence. C. P. Berks Co., March T., 1921, No. 75.

      Ira G. Kutz, for plaintiff and rule; Walter S. Young, contra.
   Endlich, P. J.

This is an action of assumpsit, in which the plaintiff’s statement avers that on Nov. 1,1919, the defendant ordered from the plaintiff verbally two certificates issued by the Neversink Distilling Co., Ltd., a corporation engaged in the business of distilling whiskey at Lorane, Berks County, for ten barrels of whiskey then in bond in the warehouse of said distilling company at Lorane, to be paid for at the rate of $4.50 per gallon; that the plaintiff duly accepted the order and delivered to the defendant two certificates, numbered 1424 and 1425, for ten barrels of whiskey, the one certificate calling for 246.01 and the other 245.65 gallons, which certificates were duly accepted by the defendant; that the defendant paid the plaintiff on account of said certificates the sum of $1000, and is still indebted to the plaintiff for the balance of said contract price, to wit, $1212.42; and that this action is brought to recover that amount, with interest from Nov. 6, 1919. To this statement the defendant filed a statutory demurrer, an affidavit of defence raising questions of law, the third of which is that plaintiff’s statement of claim is generally insufficient, in that it does not set forth a good cause of action, i. e., in accordance with the directions of the Practice Act of May 14, 1915, P. L. 483.

The affidavit of defence system under that act, by which a plaintiff is enabled to obtain judgment for his claim for want of a sufficient affidavit of defence, is founded upon that statute, and depends upon the same, not only for its existence, but for the details of its operation. It is an indispensable prerequisite in order to entitle a plaintiff to demand any affidavit of defence or to ask for the judgment provided in default of such, that he set forth his claim in the precise manner indicated and prescribed by the statute whose benefit he desires to enjoy. Section 5 of the Practice Act says that: “Every pleading shall have attached to it copies of all notes, contracts, book entries or a particular reference to the records of any court within the county in which the action is brought, if any, upon which the party pleading relies for his claim or defence, as the case may be.”

It is pointed out in the argument of defendant’s counsel that the plaintiff has failed to attach to his statement copies of the certificates he speaks of, which are a material part of his contract with defendant, and that, for that reason, he is not entitled to ask for judgment against the defendant under the Practice Act. If any authority is needed for sustaining him in that contention, it is to be found, in principle, in Gottman v. Shoemaker, 86 Pa. 31. If it be suggested that the originals are presumably in the possession of the defendant, and that, therefore, he needs no copies to inform him of their contents, the answer is that they are designed as well for the information of the court: Knapp v. Oil Co., 53 Pa. 185. Nor is there any virtue in the argument that the court cannot compel a defendant to furnish his adversary a copy of an instrument lawfully lodged with the defendant for the purpose of making a case for plaintiff, so that the latter may obtain judgment. See Morton v. Insurance Co., 12 Phila. 246. Doubtless, copies of the certificates are readily procurable by plaintiff without asking defendant for them. Moreover, the requirement of the copies is a condition precedent to the plaintiff’s right to ask for judgment, and the rule is that no amount of hardship or impossibility or illegality will avoid the bar of a condition precedent unperformed: Allegheny City v. Railway Co., 159 Pa. 411, 419. The application for judgment in favor of the plaintiff and against the defendant must, for the reasons stated, be refused, and it is unnecessary to discuss the other grounds alleged in the affidavit.

The plaintiff’s application for judgment against defendant is refused.

From Wellington M. Bertolet, Reading, Pa.


author: Fox, J.,

text:
    Shelley’s Petition.

      Detectives — Application for license — Discretion of the court — Act of May 28, 1887.

    The Act of May 23, 1887, P. L. 173, relating to the issuance of licenses to engage in the business of a detective for hire or reward, is permissive and not mandatory or imperative. In passing upon petitions for license under that act, the court has discretionary power to grant or withhold a license with regard to the necessity for additional detectives in the community. In case the court is of the opinion that there does not exist a necessity for an increase in the number of detectives, applications for license to engage in that business will be refused.
    Application for license as a detective. Q. S. Dauphin Co., Jan. Sess., 1921, No. 273.

      Charles L. Bailey, Jr., and William Jenkins Wilcox, for petitioner.
    Dec. 5, 1921.
   Fox, J.,

This is an application for a license to engage in the business of a detective for hire or reward, and for that purpose to conduct a detective agency in the City of Harrisburg in accordance with the provisions of the Act of Assembly approved May 23, 1887, P. L. 173.

Testimony was taken in the case and the matter was ordered on the argument list and argued by counsel for the petitioner, and his contention is that the petitioner having complied with the requirements of the act on his part, and having shown that the applicant is a fit person in whom to entrust such license, the court has no power or authority to consider the necessity of the license; that the act is mandatory and that the license should be granted.

The court is of the opinion that there does not exist a necessity in the City of Harrisburg for an increase of detectives or detective agencies at this time, and the single question which we will now consider is, has the court the right to consider the question of necessity.

The act does not in terms require the court to grant a license; the language of the act in section 2 is: “It shall and may be lawful for the Court of Quarter Sessions to issue a license to such person or persons applying therefor for the purposes specified in section 1 of this act,” &e.

We do not think this language is mandatory or imperative, but is permissive. It makes it lawful for the court so to issue the license, but not imperative. It is quite possible that if a license were granted to each and every applicant complying with the requirements of the act, to say the least, a community might be so overrun with detectives that they may become meddlesome and vexatious.

We do not believe that the legislature intended that the court, having knowledge of the field already being fully supplied and covered, should still go on and issue licenses without limit. We, on the other hand, do believe that it intended, and so construe the act, that the court has discretionary power with regard to the necessity for the license. This is the view taken in the following cases: Burtnett’s Application, 5 Dist. R. 3, 17 Pa. C. C. Reps. 394; Dickerson’s Petition, 13 Dist. R. 32, 5 Lacka. Jurist, 292; Richey’s Petition, 13 Dist. R. 400.

We think the field in which the applicant seeks to conduct the business is fully covered and supplied, and there is no necessity for any increase.

The application is refused.

Cf. Smith’s Petition, 5 Dist. R. 465.


author: Miller, P. J.,

text:
    Carroll’s Estate.

      Insolvent estates — Distribution—Preferred claims — Order of preference— Claim of Commonwealth for maintenance — Claims of municipal hospital and nurse — Act of June 1, 1915, and Fiduciaries Act of 1917.

    1. The Act of June 1, 1915, P. L. 661, which gives preference to claims of the Commonwealth for maintenance of persons in State institutions, is not repealed hy the Fiduciaries Act of June 7, 1917, P. L. 447, providing that debts due the Commonwealth shall be paid last.
    2. Under the Act of June 1, 1915, P. L. 661, at the audit of an insolvent decedent’s estate, the claim of the Commonwealth for maintenance of decedent in a State hospital was given preference over the claim of a nurse for services prior to decedent’s removal to the State institution.
    3. A municipal hospital’s claim against an insolvent decedent’s estate has no preference, and must share with general creditors pro rata.

    Audit and distribution. O. C. Allegheny Co., Nov. T., 1921, No. 70.

      Ed. B. Scull, for accountant; George Weil, for Commonwealth.
    Dec. 23, 1921.
   Miller, P. J.,

The question is the priority, if any, as between three several claims, the respective amounts of which are not disputed, the balance not being sufficient to pay all the claims in full.

The Commonwealth of Pennsylvania’s claim is for $162.50, covering payments made by it to the Mayview Hospital of the City of Pittsburgh, for the care and maintenance of the decedent there. The Mayview Hospital of the City of Pittsburgh presents a claim in a like amount for said period and for said services.

Anna B. Carroll presents a claim for 81529.70 for care, maintenance, medical attention, etc., paid by her for the decedent while at Dixmont Hospital prior to her removal to Mayview.

Section 6 of the Act of June 1, 1915, P. L. 661, provides that claims of the Commonwealth for maintenance of persons confined in the various institutions of the State shall, on distribution, take precedence after other claims which by law now have a preference, and before the claims of general creditors. Under this act the claim of the Commonwealth has precedence and must first be paid in full. It is urged, in this connection, that the Fiduciaries Act of June 7, 1917, P. L. 447, providing that debts due the Commonwealth shall be paid last, supersedes the Act of 1915, above set forth. This view cannot be sustained. The Act of 1917 is a re-enactment of the Act of 1834, and relates to the postponement of the Commonwealth’s claims as last to be paid to tax due from an estate, where such a tax is assessable. The Act of 1915, which is a special act, is not repealed by the Act of 1917 by direct reference, and cannot be said to be repealed under the general clause repealing acts inconsistent therewith.

There is no preference given to the claim of the Mayview Hospital of the City of Pittsburgh, such as is distinctly provided for in reference to the claims of the Commonwealth. In the absence of any such specific preference, it must follow that the claim of the Mayview Hospital of the City of Pittsburgh must be treated as a common debt, and, therefore, it must share with the other claim pro rata. Let the decree be prepared accordingly.

Prom Edwin L. Mattern, Pittsburgh, Pa.


author: Wilhelm, P. J.,

text:
    Morgalis’s Estate.

      Practice, O. C. — Guardian and ward — Stepfather not proper guardian.

    A stepfather should not be appointed guardian of his wife’s child by a former husband, in the absence of special circumstances.
    Petition for appointment of guardian. O. C. Schuylkill Co.

      A. C. Nowakoski, for petition.
    March 6, 1922.
   Wilhelm, P. J.,

This is the application of Violet Morgalis, by her next friend, Antosia Matalavage, formerly Antosia Morgalis, mother of Violet Morgalis, for the appointment of Victor Matalavage, husband of the mother of the minor, and whose relation to the minor is that of stepfather, as guardian of Violet Morgalis.

Previous to the passage of the Fiduciaries Act of June 7, 1917, P. L. 447, the policy of the courts in this State was to refuse the appointment of a parent as guardian of the minor, and, in some instances, the courts declined to appoint those who stood in a parental relation to the minor. This practice of the courts was regarded as being so salutary that the Fiduciaries Act of 1917 excluded parents as being eligible as guardians for their children, because it was believed to be contrary to the policy of the law, and because near relatives are objectionable as guardians, the reason therefor being that affection and influence lead to breaches of trust and other evils.

It is possible that, in certain circumstances, one bearing a parental relation may properly be appointed a guardian, but the reason for the appointment of persons of close relationship to the minor ought to be such as would satisfy the court that the best interest of the minor would be served by such an appointment.

In the case at bar, no satisfactory reason has been presented for the appointment of a stepfather as guardian of this minor, and it should be refused.

The petition is dismissed. From M. M. Burke, Shenandoah, Pa.


author: Patterson, P. J.,

text:
    Republic Trust Company v. F. A. Davis Company.

      Pledge — Transfer of possession — Pledgee cannot retain collateral where transfer is not made until after death of pledgor unless collateral be specifically described.

    The E. T. Co. sued the D. Co. on a promissory note for $2500, dated Feb. 25, 1918, made by the D. Co. in favor of the Central National Bank, and by it endorsed for value to the K. T. Co. The D. Co. refused to pay the note unless the K. T. Co. surrendered 100 shares of stock of the D. Co. owned by D. as an individual, and held by it as collateral, which had been transferred to it with the note by the bank. This the E. T. Co. refused to do under a claim to hold the same as collateral for the individual note of D., under a clause in D.’s note authorizing it to hold as collateral stock which at any time came to its hand belonging to D. D. died shortly before the endorsement of the note and the transfer of the stock by the bank to the E. T. Co.: Held, that the rights of other creditors of D. attached at his death, and, hence, the possession obtained by the E. T. Co. by the transfer of the stock by the Central National Bank did not create a valid pledge for D.’s individual debt, and the E. T. Co. could not retain the securities, and, therefore, could not recover on the note in. suit. Judgment for defendant n. o. v.

    Motion for judgment n. o. v. C. P. No. 1, Phila. Co., June T., 1919, No. 6483.
    O. J. Roberts, for complainant; W. H. Hepburn, for respondent.
    June 3, 1922.
   Patterson, P. J.,

The Republic Trust Company has sued the F. A. Davis Company upon a certain promissory note for $2500, dated Feb. 25. 1918, made by the F. A. Davis Company, in favor of the Central National Bank, St. Petersburg, Florida, and by it endorsed to the Republic Trust Company.

At the trial it appeared that the F. A. Davis Company had always been ready and willing — in fact, had offered — to pay the full amount of the note, with' interest and commission, provided the Republic Trust Company would turn over 100 shares of stock of the F. A. Davis Company, which had been pledged under the following circumstances:

On Feb. 14, 1914, F. A. Davis, who then was president of the F. A. Davis Company, gave his individual note for $2100 to the Republic Trust Company, the plaintiff in the case at bar. This $2100 note contains a number of provisions, amongst them being one to the effect that:

“The Republic Trust Company shall have a . . . lien upon any and all funds, stocks, bonds, notes and other property at any time in the hands of the said Trust Company belonging to the maker or endorser or endorsers, or guarantor or guarantors hereof, as a security for this note, and for any and all liability or liabilities, matured or unmatured, of such maker, endorser or endorsers, guarantor or guarantors to said Trust Company, which lien shall be enforceable in like manner, and shall be subject to all the provisions here-inabove and before mentioned and set out.”

F. A. Davis died insolvent Jan. 12, 1917. At the time of his death there were 100 shares of capital stock standing in his name in the F. A. Davis Company and represented by certificates Nos. 25, 26 and 27. These stock certificates, together with blank powers of transfer, were then held by the Central National Bank of St. Petersburg, Florida, as collateral security for a $3500 renewal note of the F. A. Davis Company, dated at St. Peterburgh, Florida, Oct. 26, 1916, and endorsed by F. A. Davis individually.

The F. A. Davis Company from time to time renewed, or rather reduced, the $3500 note, so that it had become a four months’ note in the sum of $2500, dated at St. Petersburg, Florida, Feb. 25, 1918.

On May 2, 1918, this note was endorsed and delivered for value, before maturity, by the payee to the Republic Trust Company, together with the stock certificates and powers of attorney already mentioned. At the time of taking this note and the stock certificates the Republic Trust Company had notice of the death of F. A. Davis.

When the note matured on June 25, 1918, the F. A. Davis Company tendered to the Republic Trust Company the sum of $2500 and demanded the surrender of the note and the 100 shares of stock. As already indicated, the Republic Trust Company was willing to accept the money so tendered and cancel the debt, but refused to surrender the collateral, upon the ground that it was entitled to hold the same to secure the payment of the personal note of F. A. Davis for $2100, dated Feb. 14, 1914.

The trial judge, after the foregoing facts had been proven, directed the jury to render a verdict for the plaintiff (the Republic Trust Company) for the full amount of the renewal note, with interest from maturity and attorney’s fees, as the instrument provided. Whereupon the defendant moved for a new trial, and also for judgment n. o. v.

Question.

Considering this matter in its most favorable light, so far as the plaintiff is concerned, we have the case of a man who, for money loaned, attempts, by a written instrument, but without making delivery, or without using specific descriptive words, to create a lien upon certain shares of stock of which he is the owner. Subsequently the man pledged and delivered the shares of stock to some one else for another loan and then died insolvent.

Quiere. Do the words and acts of the dead man create such a lien in favor of the first lender as to permit such lender to hold the stock in exclusion of the second lender and other bona fide creditors?

Discussion.

The law appears to be well settled that all bona fide creditors acquire a lien upon a decedent debtor’s estate, “and their rights by reason of this are no less sacred than the rights which are obtained by judicial proceeding:” Sheppard’s Estate, 180 Pa. 57 (1897).

It also appears to be well settled that when a pledgee takes title to personal property without getting actual possession of it, he assumes all risk as to the integrity and solvency of his pledgor, in the event of subsequent bona fide purchasers or levying creditors appearing: Bank v. Motor Car Co., 235 Pa. 194 (1912).

The general rule that possession of the thing pledged must be taken by the pledgee to make the pledge valid against the creditors of the pledgor, of course, has its exceptions. One of these exceptions is the pledging of an interest in a partnership — either already existing or to be subsequently created. “In such a case, the subject of the pledge is necessarily incapable of manual possession or of actual delivery. It is in no sense a specific chattel, and even as a chose in action, it cannot be enjoyed in possession until after the partnership has been closed, the debts paid, the rights of the partners, as between themselves, adjusted, and the resulting amount due the pledgor ascertained; ... it is intangible as a res. It may be something or or it may be nothing:” Collins’s Appeal, 107 Pa. 590 (1883).

This case was approved and followed in Wallace’s Appeal, 104 Pa. 559 (1883). It appears out of its chronological order, because it was not ordered to be reported when the opinion was filed. In Wallace’s Appeal Mr. Justice Trunkey, speaking for the Supreme Court, said: “The general rule that possession of the thing pledged must be taken by the pledgee to make the pledge valid against the creditors of the pledgor was recognized in Collins’s Appeal, and the pledge of an interest in expectancy or of an intangible interest, under certain circumstances, was considered an exception.”

As late as 1916 Mr. Justice Stewart, in Davis v. Billings, 254 Pa. 574, said of Collins’s Appeal: “That, while in ordinary cases of pledge of personal chattels, possession of the pledge by the pledgee is indispensable to the validity of the pledge, where, by the agreement of the parties, the possession is to remain with the pledgor, all are bound who claim under the latter except purchasers for value without notice.” We may, therefore, consider the law to be just as it was in the early 80’s, and while the learned counsel for the plaintiff cites Collins’s Appeal, Wallace’s Appeal, and Davis v. Billings, yet he makes no serious contention that the shares of stock involved in the case at bar were “intangible as a res” when the decedent attempted to create the alleged lien in favor of the plaintiff.

In fact, it is quite evident to us that the plaintiff has failed to take its case out of the general rule which requires an actual transfer of personal property to the pledgee in order to create a lien good as against creditors.

Aside from this, the language the decedent used in attempting to create the alleged lien fails to mention or describe in any way the shares of decedent’s stock upon which the plaintiff attempts to impose its lien. While it is true that no particular form of words is required to create a pledge of chattels, or to impose a lien thereon, yet the law is well settled that it must plainly appear that the parties intended to pledge or lien a particular chattel. The principle is thus broadly stated by Mr. Pomeroy in his book on Equity Jurisprudence, vol. 3, par. 1236: “The doctrine may be stated in its most general form that every express executory agreement in writing, whereby the contracting party sufficiently indicates an intention to make some particular property, or fund therein described or identified, a security for a debt or other obligation, or whereby the party promises to convey, or assign, or transfer the property as security, creates an equitable lien upon the property so indicated which is enforceable against the property,” &c.

In the case at bar there is neither a transfer of the chattel nor an identification of the property upon which the plaintiff is to have a lien until, and not until, it comes into the possession of the Republic Trust Company. As we have already indicated, the stock did not come into the possession of the Republic Trust Company until after the decease of the pledgor, when the rights of other creditors had intervened.

There is one other question involved in this case, and that is whether the defendant is entitled to judgment n. o. v., since the personal estate of F. A. Davis has passed into the custody of the law for administration. The present proceeding is merely a suit between a pledgee and a pledgor. It is well settled that a pledgee cannot deny the title of his pledgor, either by claiming title to the property himself or by setting up the claim of a third person: 31 Cyc., 807. A fortiori, nor can an endorsee’s pledgee.

Whatever rights the administrators of F. A. Davis may have in the stock in controversy can be determined in another proceeding, and, perhaps, in another tribunal. We are simply dealing with the question involved in the present suit. In our opinion, the defendant, in this case was justified in demanding a return of the stock of the F. A. Davis Company upon tendering the amount due upon the $2500 note for which the stock was pledged as collateral.

The motion for judgment n. o. v. is, therefore, granted, with an exception to the plaintiff.


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

text:
    Keating’s Estate.

      Wills — Construction — Words and phrases — Cash and securities — Real estate.

    Testator bequeathed all his estate, real and personal, to his executors in trust to “separate one-eighth part thereof haying regard to the value of the cash and securities composing the same — not including therein any real estate” which he might own at his death, and to distribute said one-eighth share to certain charities. By a subsequent paragraph, "as respects the remaining seven-eighths part of my residuary estate including any real estate or its proceeds," he directed his trustees to hold and manage the same and pay the net income to certain of his relatives, mentioning them. The words in italics were interlined in the original will: Eeld, that by the words “not including therein any real estate,” the real estate was taken out of the one-eighth of the entire estate and its value in cash or securities substituted in its place, and thus the gift to charities included one-eighth of his entire residuary estate, both real and personal.
    Reargument of exceptions to adjudication. O. C. Phila. Co., Oct. T., 1921, No. 236.
    The auditing judge (Henderson, J.) said in the adjudication, after quoting the 10th and 11th paragraphs of the will, for which see the opinion of the court in banc:

    “On behalf of the residuary legatees and devisees, it is contended that under these clauses the charities are only to take one-eighth of the residuary personal estate, and that the remaining seven-eighths of the residuary personal estate and all of the real estate passed to the residuary legatees and devisees.
    “The testator was a distinguished member of the Philadelphia Bar, and his will, which was made but a few months before his death, is in his own handwriting. I am informed that he owned several interests in real estate, some of it undivided and undeveloped properties in Rhode Island.
    “It is argued that the value of the real estate is somewhat uncertain and troublesome to arrive at, and it is urged that he would not want this complication to delay the payment of his charitable bequests. This argument does not appeal to me, for the reason that the value of real estate for purposes of partition may be determined, and promptly determined, if the parties in interest will lend their co-operation.
    “In examining clauses ten and eleven of the will, what do we find? He first directs that ‘All the residue and remainder of my estate, real and personal, I devise and bequeath unto my executors and the survivors or survivor of them absolutely and in fee simple In Trust nevertheless for the following uses and purposes, to wit:’ . . .
    “Prom this it is clear that both the real and personal estates have been given to the trustees.
    “What next do we find? ‘To separate one eighth part thereof having regard to the value of the cash & securities composing the same not including therein any real estate or interest in real estate which I may own at the time of my death, . . .’ and then he gave that one-eighth to certain charities.
    “What does this clause mean? When he said to separate one-eighth part, having regard to the value of the cash and securities composing the same, he was pointing out that he wanted his assets valued in order to set aside this one-eighth, and, in this connection, it should be noted that the word ‘securities’ may include not only stocks and bonds, but land as well. See adjudication in Estate of Henry L. Davis, April Term, 1921, No. 460.
    “Having thus directed that all his assets should be valued, what next does he do? It is manifest that it would be foolish for him to give St. Vincent’s Home one-fifteenth of one-eighth in his one-fifth interest in one-half (or l/1200th) of a farm in Rhode Island, so he directs an appraisement of these realty holdings and directs that they shall be taken by the trustees of the remaining seven-eighths.
    “With this interpretation in mind, I find no difficulty in the eleventh paragraph of the will, wherein he gives the remaining seven-eighths of his residuary estate and directs that the trustees of this seven-eighths shall take all his real estate, accounting, however, to the legatees under clause 10 for the value of one-eighth thereof.
    “In construing a will as clear as this one, arguments based on verbiage of another should be given little weight.”
    Dec. 30, 1921, exceptions were dismissed on the opinion of the auditing judge. A petition for reargument was subsequently filed and a reargument ordered.

      R. Mason Lisle, for exceptant on reargument; R. M. Remiek, contra.
    April 28, 1922.
   Gest, J.,

The testator by his holographic will, after sundry pecuniary and specific bequests, provides literally as follows:

“10. All the residue and remainder of my estate real and personal I devise and bequeath unto my executors and the survivors and survivor of them absolutely and in fee simple In Trust nevertheless for the following uses and purposes to wit: To separate one eighth part thereof having regard to the value of the cash & securities composing the same — not including therein any real estate or interest in real estate which I may own at the time of my death,— and to pay over and distribute the said eighth share unto and among the following institutions and associations in the proportions as follows, to wit.”

Here follow the names of thirteen charities, with the proportions of the estate given to them.

“11. And as respects the remaining seven eighths part of my residuary estate including any real estate or its proceeds to hold & manage the same and out of the net income derived therefrom to pay over in monthly instalments beginning -with the date of my death Three hundred dollars per annum for the use of my cousin Caroline B. Bauduy, now of New York & of her daughter Elizabeth B. Bauduy and the survivor of them during their lives respectively; and to pay over the balance of said net income (and the whole of it after the death of the survivor of my said cousins) in equal shares quarterly unto such of my sisters and issue of my deceased brother John and sister Susan as may be then living,” with further provisions not important in this connection.

The words italicized above are interlined in the original.

The testator thus devised his residuary estate, real and personal, as a whole, to his executors in trust, “to separate one-eighth part thereof,” and it cannot be doubted that “one-eighth part thereof” means one-eighth part of the entire estate, so that, if the following clauses were free from difficulty, it is clear that the charities would be entitled to one-eighth of both real and personal estate. The direction is to “separate” this one-eighth, and this can only mean to separate this share from the other seven-eighths; that is, it is to be set aside in a certain way or subject to certain conditions. This the testator proceeds to determine by the words “having regard to the value of the cash & securities composing the same — not including therein any real estate;” the words above italicized being interlined in the original will. Either the testator, in copying his will from a draft, omitted them, or, on reading his will before execution, desired to clarify his meaning. The fact is not important, for, in either event, he thought the words important, and so they are, for they show that this one-eighth, which, up to that point, included both real and personal estate, was to be “composed of” or made up from personalty; so that this one-eighth of the entire estate was to be valued in cash or securities. The next words, “not including therein any real estate,” on which the except-ant bases his argument, mean, in our opinion, simply this, that the real estate is taken out of the one-eighth of the entire estate, and its value in cash or securities substituted in its place, and the interlineation in the eleventh clause is correlative thereto.. The learned counsel for the exceptant argued that these interlined words were surplusage, but they should not be disregarded if any significance can be attached to them, and the testator thought them of sufficient moment to interline them. This view is strengthened by the final direction to the executors, viz., “to pay over and distribute the said one-eighth share,” which means the one-eighth share of the entire estate, for this refers to the “one-eighth part thereof” in the preceding clause.

Much learning was evinced by the learned counsel for the exceptant in his argument as to the meaning of the word “including.” It is used here in its ordinary sense; the real estate is not included, or it is excluded, if that word be preferred, but the real question is, excluded from what? The exceptant thinks it is excluded from the estate before one-eighth thereof is given to the charities, but, in our opinion, it is merely excluded in the distribution of that one-eighth after its value has been ascertained. There were practical reasons for this, for this one-eightli interest was given to thirteen charities in different proportions, and some of the real estate owned by the testator consisted of his undivided one-fifth interest in two parcels and his undivided one-thirtieth in another, so that he may well have considered it a more practical scheme to have his real estate pass to the trustee of the “remaining seven-eighths of his residuary estate.” Certainly, if the testator had intended the charities to take one-eighth of his residuary personal estate only, and the trustee to take the remaining seven-eighths thereof and all his real estate, it is difficult to understand why he did not say so in a few words, and very few would have been necessary.

As we think the meaning of this will becomes clear enough after analyzing its somewhat awkward phraseology, it hardly seems necessary to discuss the cases in which the word “including” or similar words are used. The learned counsel for exceptant very justly says its meaning is to be determined by its context, and decisions upon other wills are of little value in the interpretation of this.

After our brief opinion was filed on Dec. 30, 1921, dismissing the exceptions in this case, we granted a reargument in order that other counsel might be heard. We have had the benefit of further careful and elaborate discussion, but adhere to our former view, and the exceptions are dismissed and the adjudication confirmed absolutely.

Gest, J.,

May 16, 1922, supplemental opinion. — Since our opinion was filed in this case dismissing the exceptions, it has been represented to us that in our opinion we have misquoted the words in the eleventh paragraph, “including any real estate or its proceeds,” counsel claiming that the word “any” should be read as “my.” We had examined the original will before our opinion was written and have since re-examined it. The word in question is oertainly indistinctly written in a cramped hand, but admitting that it might be read by others as “my,” we think it is as we have transcribed it, and we are confirmed in the view that the word is “any” by our examination of the tenth paragraph, where the testator has plainly written “not including therein any real estate or interest in real estate which I may own at the time of my death.” The two clauses are obviously correspondent, and the testator used the same word in both of them. We may add, that even if the testator had used, or if he does use, the word “my” in the eleventh clause instead of “any,” our opinion as to the meaning of his will would not b.e changed.


author: Thompson, J.,

text:
    Connelly’s Estate.

      Wills — Construction—Gift to wife as long as she lives — Absence of gift over.

    A devise to a wife as long as she lives or remains testator's widow, with no Qualifying words or context to indicate that a fee was intended, gives her only a life estate, even if there be no gift over. Such gifts are to be distinguished from a primary gift to the wife of a fee, Qualified by such words as “as long as she lives or remains my widow” or “until she remarries,” or words of similar import.
    Petition to dismiss partition proceedings. O. C. Phila. Co., July T., 1915, No. 127.

      W. Horace Hepburn, Jr., for petitioner; M. J. O’Callaghan, contra.
    May 26, 1922.
   Thompson, J.,

This case comes before us on a petition to dismiss certain partition proceedings in the estate of Annie Connelly, deceased, now pending in this court, on the allegation that the decedent did not own the real estate referred to therein, to which an answer has been filed denying said allegation and asserting title in the decedent. The facts are as follows:

The property in question was owned by Gustavus Connelly, who died on April 9, 1896, leaving a will, duly probated, as follows:

“Philadelphia, April 6th, 1896.

“In the Name of God Amen.

“I Gustavus Connelly being of sound mind and likely to die at any time I do hereby make my last will and bequeath to my son Gustavus the sum of Five Dollars and also to my daughter Margaret McClarnen the sum of Five Dollars and the remaining part of my Real Estate, and all Personal Property to my beloved wife Annie Connelly, who is to be the Sole Executator of my Estate, as long as she lives, and remains my widow.

“Daniel Turner. (Signed) Gustavus Connelly.”

“John G. Schmidt.”

Annie Connelly, wife of the said Gustavus Connelly, died on Dec. 18, 1901, leaving a will, duly probated, whereby, after making sundry small bequests, she directed her estate to be divided into two parts, one-half to Annie and John Connelly, and the other half to be divided among the children of Margaret McClernan, and it is among those claiming under the will of Annie Connelly that the present proceedings now pending in this court are brought.

The question before us, therefore, is one of title. Did Annie Connelly take, under the will of her husband, Gustavus Connelly, a life estate or a fee?

In our judgment, she took a life estate only. We do not consider this a case where rules of construction of wills are applicable, for the reason that, under the will of Gustavus Connelly, his wife, Annie Connelly, took a life estate only by the plain terms thereof. The eases cited on behalf of those claiming under •the will of Annie Connelly are all cases where there has been a primary gift to the wife, qualified only by such words as “as long as she remains my widow” or “until she remarries,” or words of similar import. No case has been brought to our attention where a devise to a wife “as long as she lives,” with no qualifying words or context or words to indicate that a fee was intended, has been held to be an estate in fee. All presumptions (such as that the testator, when he makes a will, is presumed not to intend an intestacy as to any part of his estate, that the law favors the widow, and that the absence of a gift over indicates a fee in the first taker) must necessarily give way to the plain provisions of the will. It might be said that the presumption that the heir is not to be disinherited unless the intention so to do is clearly manifested would be a presumption in the present case in favor of a life estate in the widow, in view of the fact that Gustavus Connelly, Jr., the only child of Gustavus Connelly, is alive and would take as the heir of his father, there being no gift over after the life estate given to the widow. See Scott v. Murray, 218 Pa. 186; Koble v. Bennett, 40 Pa. Superior Ct. 79; Schaper v. Pittsburgh Coal Co., 266 Pa. 154; Long v. Hill, 29 Pa. Superior Ct. 606; Reynolds’s Estate, 175 Pa. 257; McCullough’s Estate, 272 Pa. 509.

The petition is granted and all proceedings in partition in this estate are dismissed.