author: Dawson, P. J.,

text:
    Niccolls’s Estate.
    No. 1;

      E. C. Higbee, of Higbee, Lewellyn & Higbee, for petitioner.

      Thomas J. Prather, of Humes & Prather, contra.
    Nov. 28, 1930.
   Dawson, P. J.,

John A. Niccolls died testate Oct. 16, 1892, and by his will appointed Josiah V. Thompson and William M. Thompson trustees of a fund later found to be $131,000. Of this amount $5000 was loaned by the trustees to William M. Thompson and $126,000 to Josiah V. Thompson on their respective individual promissory notes. Interest has not been paid on these loans since Nov. 4, 1914.

On May 4, 1927, a decree was made in the audit of their account, at which time they were surcharged for the amount then found due the estate, removed as trustees and directed to deliver within twenty days thereafter the property, books, accounts, papers and moneys belonging or relating to the trust to a trustee to be appointed.

On Jan. 16, 1928, the court appointed L. K. Porter, Esq., trustee, who duly qualified and demanded of the .removed trustees compliance with the order of court, and upon their failing so to do, on March 29, 1928, the new trustee presented his petition to court, setting forth such non-compliance, and obtained a rule for the attachment of Josiah V. Thompson, said defaulting trustee.

After hearing upon this rule, the court, on July 12, 1928, made the following decree:

“Second. The rule as to Josiah V. Thompson is made absolute, and an attachment is awarded directing that his body be taken into custody and committed to prison, there to remain until he pays to L. K. Porter, trustee under the will of John A. Niecolls, deceased, the sum of $126,000 principal and net income of $89,477, and the costs of this proceeding, or until he is discharged from confinement according to law. In order that defendant may have an opportunity to perfect an appeal, if he desires, attachment is decreed to issue Sept. 1, 1928.”

Attachment issued Nov. 14, 1928, but was not served upon him until Nov. 26, 1929, owing to his absence and unknown whereabouts. When service was obtained it followed Mr. Thompson’s arrest on a train at Altoona, Pennsylvania, on information charging him with embezzlement of said trust funds. From the time of his -arrest until his trial he was under $25,000 bond. The embezzlement ease came to trial in September last and resulted in an acquittal.

On Nov. 26, 1929, Mr. Thompson appeared in court with his counsel and the estate by its counsel. On his behalf, counsel explained that when arrested he was en route to New York City to keep a prearranged meeting with some prospective coal purchasers, he having in his possession at that time a large number of options on coal lands in Greene County. At the time of his arrest sworn statements had been made by him in the pleadings in the contempt proceedings that he was wholly without means to repay the trust funds. The court having this fact in mind; together with the seeming substantial character of the prospect of sale, concluded that the practical and common-sense thing to do under the circumstances was to give him a chance to make good, wholly or partially, if he could. The court was assuming that, above everything else, restitution was desired and not punitive measures, and to that end we have labored.

Other extensions followed for a similar or other good reasons, as we concluded.

On July 31, 1930, after much argument, the court made the second order of commitment. Immediately following this order his counsel presented a petition under the Act of June 1, 1915, P. L. 704, praying for the relief afforded thereunder, to the end that he be discharged from contempt. This petition recites that he owns twenty shares of common stock in a publications company, costing $1000 but of unknown present value; fifteen shares of stock of the Emerald Coal & Coke Company, par value $1500; six acres of coal lands, in Marshall County, West Virginia, costing $300- but of no market value; about sixteen acres of surface land in Washington County, Pennsylvania; ten lots in Muscle Shoals, on which has been paid $4250, leaving an unpaid balance, appearing in his schedule of indebtedness; library, $100, and cash, $1.49. It recites that he owes on notes, etc., $145,577.97.

Pending the hearing set for Sept. 22, 1930, on this petition and the rule granted thereunder, Mr. Thompson was released under bond of $25,000. To this petition answer was made on the day set for the hearing by L. K. Porter, trustee, averring that said act of assembly has no application to a decree of surcharge and commitments for contempt. At the same time a second petition was presented on behalf of the respondent in accordance with the provisions of subdivision 8 of division (b) of section 18 of the Orphans’ Court Act, praying that he be decreed to have purged himself of said contempt.

At this hearing it was concluded to take the testimony of witnesses, subject to the ruling of the court as to which act, if either, might be invoked, as the record stands.

The essential portions of the Act of 1915 for our consideration under which the first petition was drawn are as follows:

“Section 1. Be it enacted, etc., that from and after the passage of this act, any person arrested or held in custody, on or by virtue of any process issued on a judgment obtained in any civil action in this Commonwealth, may present his petition to the court, or any law judge thereof, out of which the process or execution issues, praying for his discharge from arrest. The petition shall set forth the nature of the proceedings out of which the process, upon which the petitioner is held, issued, the amount of the judgment therein obtained, a schedule of all the assets of the petitioner, a list of the creditors of the petitioner with the amounts of their claims; the addresses of the creditors, and the nature of the debts owing to them; a statement as to why the petitioner is unable to pay the judgment, and shall be verified by the affidavit of the petitioner.”
“Section 4. Upon the hearing of the rule the petitioner shall be required to answer all questions put to him, and shall produce all books and papers required of him; and if it shall appear to the court that the petitioner is without means or property with which to pay the judgment, and that he has not secreted or assigned any of his property so as to avoid the payment of the judgment, the court may discharge him from arrest in said proceedings; but such discharge shall not in any way affect the judgment entered against him. Any person arrested or held in custody on or by virtue of, any process issued on a judgment obtained in any civil action in this Commonwealth shall be discharged at the expiration of sixty days from the date of the commitment, if compliance is had with all the requirements of this act and all other acts of Assembly relating to insolvency.
“Section 5. All acts or parts of acts inconsistent herewith be and the same are hereby repealed.”

The language used in the first section of the act is comprehensive, for it says that “any person arrested ... by virtue of any process issued on a judgment in any civil action . . . may present his petition to the court . . . out of which the process issues, praying for his discharge from arrest.”

The provisions in the Insolvent Debtors’ Acts of 1836 and 1842 provide for the presentation of the petition of one arrested, not to any court, as in the Act of 1915, but expressly to the court of common pleas. This act expressly repeals all former acts inconsistent therewith.

As to repugnant acts passed at different sessions of the legislature, Endlich, interpretation of Statutes, section 187, states: “The same rule, which, between two irreconcilable passages. or provisions in the same statute, gives validity to the later one, requires that, where two statutes are irreconcilable and mutually repugnant, the one later in date or order should be held to repeal the earlier one.”

Even where there has been no express repeal of a former statute in such case (Johnston’s Estate, 33 Pa. 511, 515), our Supreme Court said: “It has been said that, a subsequent statute, revising the whole subject-matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must, on the principles of law, as well as in reason and common sense, operate to repeal the former.” See, also, Hammond v. Aluminum Co. of America, 261 Pa. 370, 377; Jefferson County v. Rose Township, 283 Pa. 126, 131.

These authorities would seem to support the position that the Act of 1915 might he applicable, inclusive of the orphans’ court.

To revert again to an analysis of this act, the next question arises whether “any person arrested or held in custody, on or by virtue of any process issued on a judgment obtained in any civil action,” can legally present his petition to the orphans’ court for discharge from contempt when such arrest or detention arose from a decree of the orphans’ court to pay money by a trustee to his successor in the trust.

The status of the orphans’ court was early fixed by the Act of March 29, 1832, P. L. 190, which, inter alia, recites: “The Orphans’ court is hereby declared to be a Court of Record, with all the qualities and incidents of a Court of Record at common law; its proceedings and decrees, in all matters within its jurisdiction, shall not be reversed or avoided collaterally in any other court, but they shall be liable to reversal, modification or alteration on appeal to the Supreme court.”

What is the meaning of the word “judgment?” Is the decree of an orphans’ court to pay embraced in the word “judgment” as used in this act?

Webster defines the word “judgment” as meaning (a) the act of determining, as in courts, what is conformable to law and justice; also the determination, decision, decree or sentence of a court; (b) the obligation, especially a debt, created by the decision or decree of a court; also, the official certificate evidencing such a decision or decree.

We refer to the following legal definitions of the word:

“In its broadest sense a judgment is the decision or sentence of the law given by a court of justice or other competent tribunal as a result of proceedings instituted therein. In the broad sense here defined, a decision of any court is a judgment, including courts of equity, admiralty and probate:” 33 Corpus Juris, 1047.
“A judgment is the determination of the law as the result of proceedings instituted in a court of justice:” Mahoning County Bank’s Appeal, 32 Pa. 158, 160.
“The decision or sentence of the law, given by the court of justice or other competent tribunal, as the result of proceedings instituted therein for redress of an injury:” 3 Blackstone, 395.

Said Freeman on Judgments (vol. 1, § 20) : “Orders of a probate court commanding the administrator to pay over money or to sell property to pay debts are judgments.”

It is evident from these varied authorities that an order to pay by the orphans’ court is comprehended in the designation “judgment.” But according to the act it must be a judgment obtained in a “civil action.”

Mr. Justice Brewer, in the case of State of Iowa v. Chicago B. & Q. R. R. Co., 37 Fed. 497, quotes from various authorities the definition of a “civil action.” One of them is as follows: “A civil action is an action brought to recover some civil right, or to obtain redress from some wrong not being a crime or misdemeanor.” It follows then that all judgments obtained in the orphans’ court are necessarily civil judgments arising out of civil actions because of the exclusion of criminal jurisdiction. Even contempt proceedings are held to be civil actions: Patterson v. Wyoming District Council, 31 Pa. Superior Ct. 112, 117, and McCullough, Jr., v. Large et al., 20 Fed. 309.

However, only three cases, so far as we can find or in so far as has been cited .by counsel, have reached the appellate courts involving this act. None of these, nor the only two lower court cases reported, raise the question of discharge of fiduciaries.

For the moment, we will turn to the Orphans’ Court Act, section 18 (b), 8, under which the second petition was drawn. It provides as follows: “Any person attached as for contempt in refusing to obey an order or decree of the orphans’ court, whether for the payment of money or in any other case, may be discharged from custody by said court on his complying with the order or decree of the court, or paying the money for which such order or decree has been made, or upon his purging himself of contempt to the satisfaction of the court by whose order he was attached.”

The report of the commissioners appointed to codify and revise the law of decedents’ estates adds to this section the following note: “This is a new clause, introduced to make it plain that such discharge may be made by the orphans’ court, and that the respondent need not resort to insolvency proceedings in the court of common pleas. There is a conflict of authority on the question under the existing law. See Baker’s Estate, 21 Dist. R. 177; Ex parte Batdorff, 13 W. N. C. 417.”

The Baker case arose in the Orphans’ Court of Philadelphia on petition for attachment, and was decided in 19'09. The view of the court as to its control of the writ is expressed in the syllabus as follows: “The control of the process of attachment to enforce decrees of the orphans’ court for the payment of money is entirely within the power of the court, and delinquents in proper cases may be discharged, although they have not obeyed, and could not obey, the order of the court.”

The state of the law as the court then understood it was illustrated by three cases cited. In the first case, Bolton’s Estate, 13 Phila. 340 (1880), the petition was drawn under the Act of March 29, 1832, P. L. 190, 208. It held that it was within the discretion of the orphans’ court to permit a party, attached and committed for contempt for not obeying an order of the court, to purge himself from such contempt.

The second case, Stevenson’s Estate, 7 W. N. C. 65, is one where the court held that the respondent, showing his actual inability to comply with the order of court, not arising from his own peculation and fraud, should be discharged.

And the third case, Irwin’s Estate, 9 Dist. R. 282, held that the contempt is purged where it is shown that the failure to comply with the order is due to inability which has not been brought about by an act or default by the contemner.

The second case referred to by the commissioners is illustrative of the other line of cases holding that the orphans’ court is without jurisdiction to discharge a person committed by reason of his inability to pay. The opinion in this case was rendered by Judge McPherson in 1883. Henry Batdorif, the petitioner therein, was the administrator of Pereival Batdorif, and had been committed to prison under an attachment issued to compel him to pay the widow of his intestate a sum of money which was decreed to her Nov. 13, 1882. The court held it had no jurisdiction to discharge him from jail because of his inability to pay, which would mean imprisonment for life.

The above cases show clearly the “conflict of authority” alluded to by the commissioners.

But counsel for respondent argues vigorously that the orphans’ court has jurisdiction under either act to' consider the question of discharge. No appellate or lower court decision has been rendered to pass upon this question, so far as we can learn, to enlighten us. When we contemplate the resolution of the legislature passed April 23, 1915, P. L. 177, as to its comprehensiveness in creating the commission, we observe it gave to it broad powers “to codify and revise the law of decedents’ estates, whether testate or intestate, and to report the same to the next general assembly, and to recommend such changes in the existing law as may to such commission seem desirable.” As a result of their labors, we have eight acts comprehending the entire range of orphans’ court law, practice and procedure. One of these acts is known as the Orphans’ Court Act. In the commission’s preliminary notes to its report it speaks of giving “enlarged powers” to the orphans’ court, “including attachment to enforce obedience to its orders.” It is, therefore, a common sense view to conclude that this new clause was studiously added as the instrumentality to enforce obedience to the orders of the court. Accordingly, the motion to dismiss the petition presented under the Insolvent Act of 1915 is allowed and the rule discharged.

If the testimony taken has any application, it would, therefore, be under the second petition. The misuse of funds in the instant case is really more apparent than in the Messmore case, reported in 293 Pa. 63. There, Mr. Thompson took the position that his agreement with the Messmores to carry their coal lands had terminated, and, therefore, his executorship was at an end, and he, as an individual, was at liberty to deal with them for these lands as individuals. The court held this position untenable, and he was ordered to pay, to which order he answered his inability to pay because of poverty, and, therefore, could not be adjudged in contempt. The court held otherwise; hence the appeal, with an affirmance.

In this case, on page 69, the court said: “Although not charged with fraud arising malo animo, appellant is guilty of maladministration of trust funds, and this is a species of fraud; he is, therefore, not in the position of one who pleads inability to pay because of poverty which came upon him through no fault of his own. The law is not lenient to those in the position of appellant; we said in Com. ex rel. Di Giacomo v. Heston, 292 Pa. 63, 68, that ‘a trustee who fails to pay over the funds entrusted to his care, is subject to attachment for contempt, as is an executor (Tome’s Appeal, 50 Pa. 285) or guardian: Letter’s Appeal, 10 W. N. C. 225.’ It is well stated in 13 Corpus Juris; 20, that ‘when the inability [to pay] is due to the wrongful act of the party himself, the contempt is not excused, as where he has misapplied or misappropriated funds held by him as attorney, administrator, receiver, guardian, or in other trust capacity.’ This principle is well settled; see Hoffman’s Estate, 10 Pa. Superior Ct. 113, and cases there cited; also Morrison v. Blake (No. 1), 33 Pa. Superior Ct. 290, where it was held that a person attached for contempt for not paying over trust moneys could not purge himself by alleging poverty, the court saying, at page 295: ‘The mere answer of a trustee that he has wrongfully wasted or otherwise stripped himself of the trust fund may not stay the arm of a chancellor when the day for accounting has arrived, else indeed would his decree be but an empty name, and breaches of trust would become common by reason of their immunity from any dangerous consequences.’ ”

It is to be noted there is a clear line of distinction made between those unable to pay where there is no misuse of the funds and in cases where it is otherwise. Furthermore, it would indicate that it is a serious question whether or not, he having been adjudicated in contempt, a state of circumstances could arise whereby a court would be justified in granting relief from imprisonment short of payment. But, aside from this, a consideration of the testimony of the respondent will clearly indicate the duty of the court in the premises.

Counsel for respondent examined his witnesses so as to support both of his petitions, and in the production of testimony nearly all of it came from Mr. Thompson, which was not controverted, so all are bound thereby. By his discharge in bankruptcy he was legally freed from his creditors. He testified that by the proceedings in bankruptcy he surrendered all of his properties of every kind, including 300,000 acres of coal lands, and when the trustees sold his properties he had no secret understandings or agreements with the purchasers as to any future participations in these properties.

At the conclusion of the war Mr. Thompson began optioning and selling coal lands. In some detail he enumerated coal sales made and commissions earned, amounting to $220,000 to $250,000, covering the period from 1920 to 1923. Subsequent to this he had not made any sales nor made any money, but in another place he testified that about 1927 he made at least $1400. These earnings had been kept in various banks, principally the Mellon Bank of Pittsburgh. With these latter deposits were included moneys to his credit for taking up some of the coal lands from the purchasers, and, further, this, the most important of his bank books, could not be found anywhere after diligent search. No books of record had been kept of receipts or disbursements, and only a partial list of checks drawn on these deposits could be produced.

It might be added that the respondent, or his counsel, had been notified previous to the hearing to produce all books, papers, checks, etc.

Mr. Thompson’s failure disclosed that he owed many millions of dollars to several thousand creditors. Through the bankrupt estate they have received 12 per cent, of their claims. Many creditors thus lost practically all they had and were reduced to want. Particularly has this been so with some of the aged and widows. From memory he recalled the names of fifty-four creditors, all of whom were women but eight, to whom he paid $79,000 as partial payments on their notes, some by check and some by cash. Notes were offered in evidence, paid in full by him, which, with the interest, in round numbers amounted to $100,000. In his testimony he maintained he had made payments to about 200 creditors in all out of the commissions. No doubt, many of these creditors, especially'the helpless women, were importunate in their appeals for money, as he testified, and many of the payments meant the supplying of much needed necessities to sustain life.

To show large income from other sources by the life tenant and that the respondent aided in its procurement; to show that the remaindermen have support from other sources; to show that the respondent, as executor, converted the Niccolls’s estate from coal acreage subject to a $100,000 debt, into a net balance of $312,000 for widow, daughter and grandchildren, will not avail under the law, but should have been strong mitigating circumstances to the extent, at least, of that worthily bestowed upon the truly needy, for, after the discharge, such payments were only moral and not legal obligations. Here the obligation is both moral and legal.

In this selection of creditors the reason is apparent, but not so when Dr. Anjou received from him $50,000 to $60,000 for a family genealogy. As late as 1927, $1400 was paid upon this account. In this expenditure even the needy creditors were forgotten. To spend this amount of money for such a purpose by a man of abundant means and no creditors would invite unfavorable comment by his business associates, but when such an improvident expenditure is made with the obligation hanging over him to make restitution to a trust, the duty of the court is so plain that no elaboration is necessary. To have come into court with a previous tender of this amount of money, or its apportionment to this and the companionate Messmore claim, would appeal more to the conscience and discretion of a court rather than to say in effect that the preservation of family history is paramount to restitution of trust funds. To this no court could subscribe.

We have sympathy for Mr. Thompson in his unhappy plight, just verging on his seventy-seventh year, and now sitting in the shadows of the sunset of his life, with vision badly impaired and cherished hopes crushed, yet with a mind keen and alert, and a seeming desire for his liberty to atone for his mistakes, now realized, by being permitted to continue his efforts to earn money in the sale of coal acreage and thus make restitution. It was this compassion and, above all, his well-recognized abilities for salesmanship and willingness to work that induced us to make the extension we did, in the hope that restitution might be the more assured, the community at large benefited by sharing in the sale of coal lands and himself saved humiliation. Save Mr. Thompson himself, none perhaps feels more keenly the disappointment in his inability to make the hoped-for sales nor the dread of an order to commit.

Order.

And now, Nov. 28, 1930, the petition filed July 31, 1930, under the Act of June 1, 1915, P. L. 704, and that filed Sept. 22, 1930, under the provisions of subdivision 8 of division (b) of section 18 of the Orphans’ Court Act of June 7, 1917, P. L. 363, are dismissed and the rule under the first petition discharged, and that petitioner surrender himself into the custody of the Sheriff of Fayette County on or before Dec. 9, 1930, unless exceptions be filed on or before that date, and Tuesday, Dec. 9, 1930, at 10 o’clock A. M., is fixed as the time for argument of such exceptions as may be filed.

Prom Luke H. Prasher, Uniontown, Pa.


source: Caselaw Access Project

license: Public Domain

text:
    Niccolls’s Estate.
    No. 2.

      Umble, McKean & Williams and Higbee, Matthews & Lewellyn, for trustee.

      L. K. Porter, H. S. Dumbauld, Thomas J. Prather and Frederick W. Miller, contra.
    Dec. 17, 1930.
   Dawson, P. J.,

Recently four physical examinations have been made of Josiah V. Thompson, now committed to the Fayette County jail, under order of this court, to ascertain his state of health. These examinations were made by Doctors G. H. Griifin, the jail physician, C. H. Smith, C. H. La Clair and A. E. Crow, the latter being Mr. Thompson’s family physician.

Each doctor made his examination alone and each made a separate written report to the court.

For a great many years all of these men have been engaged in the practice of their profession in this county and have established a reputation as practitioners of high standing and as citizens of the highest integrity.

In substance, they report to the court that recently Mr. Thompson underwent a preliminary iridectomy at the Eye and Ear Hospital in Pittsburgh, Pa., which is to be followed by an operation for cataract extraction, and that preliminary thereto he needs careful, continuous attention and advice from skilled specialists; but if such operation should be too long delayed it might result in blindness. There is practically no vision in one eye now and the other is impaired. These examinations, as well as former ones by Doctor Crow, reveal that Mr. Thompson is suffering from diabetes, making it necessary for him at all times to be given a carefully regulated diet, and certain scientific tests, which cannot be carried out under present conditions.

To deprive a well man of his liberty is one thing; but to deprive a broken old man of his liberty when he is suffering from two serious maladies, and at the same time to deprive him of a fair opportunity to alleviate his suffering, calls for judicial clemency and a recognition of the common humanities of life when such physical conditions are reliably brought to the attention of the court.

The Orphans’ Court Act of June 7,1917, P. L. 363, § 18 (b), 8, provides for discharge from commitment under conditions as follows:

“Any person attached as for contempt in refusing to obey an order or decree of the orphans’ court, whether for the payment of money or in any other case, may be discharged from custody by said court on his complying with the order or decree of the court, or paying the money for which such order or decree has been made, or upon his purging himself of contempt to the satisfaction of the court by whose order he was attached.”

Heretofore we cited state appellate and a federal court decision to show that contempt is a civil and not a criminal proceeding. The act quoted shows that one attached is committed for an indeterminate period, to be released when, in the discretion of the court, the contemner has purged himself of contempt “to the satisfaction of the court by whose order he was attached.” Each case of this kind largely has its own controlling circumstances.

The fact of a commitment to jail itself, without respect to duration of time, would be more keenly felt by Mr. Thompson and a greater punishment to him than a long time confinement by many another man. And, too, the humiliation would be more poignantly felt by him, and the hand of the law much heavier upon him, with his weight of years and ill-health, than to a younger man of good health.

We accept the verity of the written reports of the doctors as to Mr. Thompson’s health and conclude that under the law he is entitled to his discharge.

In the petition presented to the court July 31, 1930, under the Act of June 1, 1915, signed by Mr. Thompson and sworn to by him, he set forth that he owned the following property, to wit: (a) twenty shares of the capital stock of the MaeFadden Publication Company; (b) fifteen shares of the capital stock of Emerald Coal and Coke Company; (e) contract for the purchase of ten lots in Muscle Shoals; (d) about six acres of coal, with appurtenant mining rights, situate in Marshall County, West Virginia; (e) one-fourth of five-fourteenths plus one-forty-second of a tract of land in South Strabane Township, Washington County, Pennsylvania, equivalent to about sixteen acres in severalty; (f) library, list to be attached, valued at not exceeding $100.

At the subsequent hearing Mr. Thompson was not interrogated concerning this property, but we assume he still owns it. This is the only property that the testimony or any of the filed papers indicate that he owns. At this time we deem it prudent to set at rest any question as to this property; consequently, we shall direct Mr. Thompson to make such conveyances and transfers of muniments of title of this property to the National Bank of Fayette County, in trust, however, for the benefit of this estate and that of Emma Messmore, deceased, in proportion to their respective claims.

Decree.

And now, Dec. 17, 1930, upon and after due consideration, the court, to its satisfaction, adjudges Josiah V. Thompson to have purged himself of the contempt for which he now stands committed and orders and directs the sherifi: to release him.

It is further ordered and directed that Josiah V. Thompson, as soon as the necessary data is obtainable, execute and deliver the necessary deeds, certificates of stock and all necessary assurances of title thereto, and all personal property, to the National Bank of Fayette County, which we appoint trustee, to hold in trust for the use and benefit of the John A. Nieeolls estate and the Emma Messmore estate of the following: (a) Twenty shares of the capital stock of the MacFadden Publication Company; (b) fifteen shares of the capital stock of Emerald Coal and Coke Company; (c) contract for the purchase of ten lots*in Muscle Shoals; (d) about six acres of coal, with appurtenant mining rights, situate in Marshall County, West Virginia; (e) one-fourth of five-fourteenths plus one-forty-second of a tract of land in South Strabane Township, Washington County, Pennsylvania, equivalent to about sixteen acres in severalty; (f) library, list to be attached, valued at not exceeding $100; said trustee to convert said property into money as speedily as may be advantageously done, and after proper administrative deductions, to apply the proceeds thereof in extinguishment of the indebtedness of Josiah V. Thompson to the estate of John A. Nieeolls, deceased, and the estate of Emma Messmore, deceased, ratably and proportionately to the amounts payable, by him to each of the said estates, as shown by the records thereof in the Orphans’ Court of Fayette County, the former at No. 63, March Term, 1927, and the latter at No. 39, December Term, 1924. Bond to be given in double the appraised value of the personal property.

From Luke H. Frasher. Uniontown, Pa.


author: Fronefield, P. J.,

text:
    Gormley v. Berger.

      Reilly & Pearce, for rule; E. L. Van Roden, contra.

      June 24, 1930.
   Fronefield, P. J.,

In the above entitled case, the plaintiff brought suit against the defendant to recover compensation for injuries sustained by her in an automobile collision. The plaintiff’s statement of claim alleges that she was a passenger in an automobile being operated in the State of New Jersey, on the White Horse Pike, in a northerly direction; that the defendant was operating his automobile in the opposite direction on the same highway at an unlawful and illegal rate of speed and crashed into the automobile in which the plaintiff was a passenger, thereby injuring the plaintiff.

The defendant directed a scire facias to be issued against Clayton D. Rothermel under the Act of April 10, 1929, P. L. 479, alleging that Rothermel is jointly and severally liable with the defendant for the cause of action declared on in this case to the extent of defendant’s whole liability, and that Rothermel is personally responsible for the collision upon which the suit is based, because he suddenly made a left turn, coming to the left side of said highway to pass a machine going in the same direction, and ran into and struck the defendant’s machine with great force and violence.

To this scire facias the sheriff returned that he was unable to serve Rothermel in this county, and, therefore, deputized the Sheriff of Philadelphia County to serve him, which sheriff returned “served” upon Rothermel personally at 2502 North Twenty-ninth Street, in the County of Philadelphia, and made known the contents thereof.

Rothermel presented his petition, setting forth that the collision occurred in the State of New Jersey, which the statement of claim also alleges, and that the writ of scire facias, in which the defendant seeks to have him made a party to the suit, was issued in the County of Delaware, and that he resides and was served in the City of Philadelphia, and prayed the court to strike off the return and to set aside the service on him.

The only act, in an action for damages arising from the operation of any vehicle, which authorizes service of a writ in another jurisdiction than the one in which it is issued is the Act of May 11, 1927, P. L. 886, section 1212, which provides that an action may be brought in the court of common pleas of the county wherein the damage is sustained, and that service of the writ may be made by the sheriff of that county deputizing the sheriff of the county wherein the defendant resides to serve it.

It is, therefore, clear that had the plaintiff brought suit against Rothermel in this county, the service would not be sufficient, and why a defendant may bring him into a court into which the plaintiff may not bring him is not made clear. The Act of April 10, 1929, P. L. 479, does not authorize service out of the jurisdiction, nor does it extend the jurisdiction of the court over one who is not served in the county where the collision occurred or where the writ issued. It only provides that “any defendant . . . may sue out ... a writ of scire facias to bring upon the record as an additional defendant any other person alleged to be liable over to him for the cause of action declared on, or jointly or severally liable therefor with him, with the same force and effect as if such other had been originally sued.”

In Vinnacombe v. Philadelphia et al., 297 Pa. 564, the Supreme Court has fixed the procedure to be followed under this act, but does not construe the act to authorize service out of the jurisdiction.

And now, to wit, June 24, 1930, the return of service on Clayton D. Rothermel is hereby stricken off and the service set aside.

From William R. Toal, Media, Pa.


author: Copeland, P. J.,

text:
    Ehrenwerth et ux. v. Scottdale Borough.

      Adam B. Shaffer and John W. Pollins, for plaintiffs.

      John L. Mollison, for defendant.
    June 23, 1930.
   Copeland, P. J.,

This is an action brought by the plaintiffs against the defendant to recover the sum of $1500. The plaintiffs’ statement of claim states their case as follows: That on and prior to August, 1926, one of the plaintiffs, Mollie Ehrenwerth, was the owner in fee simple of certain real estate in the Borough of Scottdale which is described as follows: First tract being lot No. 180 in plan of lots laid out by John I. Everson, and the second tract being lots numbered 181 and 182 in the plan of lots laid out by John I. Everson; that these lots front 120 feet on the westerly side of Fifth Avenue, and have erected thereon a three-story ten-room frame dwelling house and other improvements; that on or about August, 1926, the market value of the real estate and improvements was approximately $5000; that on and before August, 1926, Fifth Avenue was regularly laid out and accepted as a public street by the Borough of Scottdale and dedicated to public travel; that on or about August, 1926, the Borough of Scottdale raised the grade of Fifth Avenue approximately five feet in front of these lots; that by reason of the raising of the grade and the leveling and the filling in of Fifth Avenue, the properties of the plaintiff are approximately five feet lower than the traveled portion of Fifth Avenue; that by reason of the filling in of this street, the surface waters which formerly drained over Fifth Avenue now are impounded on the premises of the plaintiffs, often entering the lower story, and that because of these improvements the property has been depreciated in value from $5000 to $3500.

To this statement of claim an affidavit of defense was filed by the borough raising questions of law. The question of law raised by the five assignments in this affidavit of defense is that the plaintiffs’ statement of claim does not allege negligence, and, therefore, an action in trespass cannot be maintained; that the remedy, if any the plaintiffs have, must be by application to the court for the appointment of viewers.

In all cases where the right of eminent domain is exercised by a borough, or where property is injured by the improvement of a street by a borough, the property owner has the right to recover damages, but the courts seem to hold that where property is not taken or injured by negligence, the appropriate remedy is by having damages assessed by a board of viewers and not by an action in trespass.

The damages claimed in this case by the plaintiffs are based on the change of grade of Fifth Avenue, in the Borough of Scottdale. The Act of May 14, 1915, P. L. 312, governs the proceeding in this ease. The Act of 1915 has been substantially reenacted by the Act of May 4, 1927, P. L. 519, but the injury complained of having occurred prior to the passage of the Act of 1927, the Act of 1915 applies.

Chapter 6, article ill, section 1, of the Act of 1915 provides: “The right to damages against boroughs is given to all owners or tenants of lands, property, or material abutting on or through which pass roads, streets, lanes, or alleys injured by the laying out, opening, widening, vacating, extending, or grading of such roads, streets, lanes or alleys, or the changing of the grades or lines thereof: the construction and the vacation of bridges and piers, abutments and approaches therefor, and the construction of sewers, over, upon, or through such lands or property.”

Chapter 6, article II, section 2, provides: “. . . in case the compensation for damages or benefits accruing therefrom have not been agreed upon, any court of common pleas or any law judge thereof in vacation, on application thereto by petition by the borough or any person interested, shall appoint three viewers from the board of viewers of the county, and appoint a time, not less than twenty nor more than thirty days thereafter, when the viewers shall meet upon the line of the improvement and view the same and the premises affected thereby.”

The Act of 1915 is substantially a reenactment of the Act of May 16, 1891, P. L. 75. The Act of 1915 is complete in its legal remedies for damages in a case where the grade of a street is raised.

Where a statutory remedy is provided, that remedy must be pursued to the exclusion of all other actions. In Cooper v. Scranton City, 21 Pa. Superior Ct. 17, we find this language of Judge Porter, quoting from pages 21 and 22: “A statutory remedy having been provided for the enforcement of the constitutional right, that remedy ought to have been pursued. The ascertainment of the damages and benefits arising from the execution of a public work by a municipality, is a matter in which the public has, and many private individuals may have, an interest. It is important that those who are to receive compensation for injuries and those who are to pay for benefits accruing to the property should all be heard before the same board of viewers, in order that all conflicting rights may be considered. The measure of damages in such a case is different from that which applies in an action of trespass. The benefits to the property as a whole must be taken into consideration, in connection with any injury that may result to land or buildings. If each individual owner of land upon a newly graded street were permitted to settle his rights in an action of trespass, the result would lead to confusion and be prejudicial to the rights Of the public. When the injury to property is such only as is the direct, immediate and necessary or unavoidable consequence of the act of eminent domain itself, irrespective of care or negligence in the manner of the execution of the work, a proceeding before viewers is the appropriate remedy: Denniston v. Philadelphia Co., 161 Pa. 41; Stork v. Philadelphia, 195 Pa. 101. We are of opinion that the plaintiff was not entitled to recover in an action of trespass, and that the point of the defendant requesting a binding instruction ought to have been affirmed.”

In Denniston v. Philadelphia Co., 161 Pa. 41, it is said in the first paragraph of the syllabus: “The inconvenience and injury caused by the location of a properly constructed and -carefully operated pipe line may be considered in a proceeding for the assessment of damages to the land through which it passes, but such as are produced by the negligent construction and operation of the pipe line cannot be considered in such a proceeding.”

In this case there is a clear distinction pointed out between what may be tried before a board of viewers and what may be tried in an action of trespass where negligence is the foundation of the action.

In the later case of Stork v. City of Philadelphia, 195 Pa. 101, it is clearly settled that for injuries which result from the direct and necessary consequences of the act of eminent domain itself, the liability and the amount of damages are to be determined by viewers while damages resulting from the manner in which the act was done are to be determined by an action of trespass. The first paragraph of the syllabus in that case, which is fully supported by the opinion, is as follows: “The absolute liability imposed upon a municipality by the Constitution for injury to property and put by the Constitution on the same footing as a taking for public use is such injury only as is the direct, immediate, necessary and unavoidable consequences of the act of eminent domain itself, irrespective of care or negligence in the doing of it. For such injury a proceeding before viewers is the appropriate remedy; but for injury by negligent performance of the work the remedy must be by action of trespass.”

In the still later case of Robinson v. Norwood Borough, 215 Pa. 375, Mr. Justice Stewart, in delivering the opinion of the oourt, clearly pointed out and emphasized the fact that unless negligence was alleged and that averment sustained, the action to ascertain damages could not be by trespass, but in the statutory proceedings before viewers. The first paragraph of the syllabus in that case reads as follows: “Where a borough opens and grades a street, and there is no negligence in. the actual performance of the work, the damages, if any, resulting to private property must be ascertained, not in an action of trespass but in the statutory proceedings before viewers. The mere fact that the borough deviated from a previously adopted plan and scheme of grading, as a result of which an increased amount of water was precipitated upon private property, is not such negligence as to make an action of trespass the proper remedy, instead of the statutory proceeding before viewers.”

The cases that we have heretofore cited have all been decided under the Act of 1891, supra. The Act of 1915, supra, succeeded the Act of 1891, supra, for the regulation of damages, and since it in substance reenacts the Act of 1891, in so far as the regulation of damages is concerned, the decisions that we have heretofore quoted will apply with the same force and effect to it as to the Act of 1891.

As we said before, the plaintiffs do not aver that the grading and filling in of Fifth Avenue by the Borough of Scottdale was not done according to legal requirements or that the work was done with negligence, and, as stated in the opinion of Mr. Justice Stewart in Robinson v. Norwood Borough, supra, “We must assume, for nothing is here asserted to the contrary, that the borough entered upon these improvements with due observation of all legal requirements and that what it did in this connection it had a right to do.”

The proper legal remedy for damages such as claimed by the plaintiffs in this case has been settled by a large number of decisions of both the Superior and Supreme Court of this state, and we again repeat that the exclusive remedy for damages for which the plaintiffs claim in their statement of claim Is by proceedings before viewers, and that an action of trespass is not the proper legal remedy for damages in such a case as stated by the plaintiffs’ statement of claim.

The application for a board of viewers under the statutory provisions for cases of this character may be made at any time within six years from the entering upon the property or from the date of entrance upon the street which caused the injury complained about.

And now, to wit, June 23, 1930, after argument and after due and careful consideration, it is ordered, adjudged and decreed that the question of law raised in the affidavit of defense be and the same is hereby resolved in favor of the defendant, under the provisions of section 20 of the Act of 1915, and the plaintiffs are barred from prosecuting this action any further.

From William S. Rial, Greensburg, Pa.


author: Landis, P. J.,

text:
    Schock, to use, v. Miller et al.

      Paul A. Mueller, for plaintiff; Charles W. Eaby, for defendants.
    June 21, 1930.
   Landis, P. J.,

The facts of this case were not in dispute. On Nov. 3, 1928, P. Frank Schock made an agreement with Harry P. Miller, whereby Schock leased to Miller one used Oakland sport roadster automobile for a total payment of $718. Of this, $406 was paid on or before delivery, and the balance of $312 was to be paid in twelve instalments of $26 each. The lease provided that “time is of the essence of this contract, and if the lessee default in complying with the terms hereof, the lessor may take immediate possession of said property without demand, . . . and for this purpose lessor may enter upon the premises where said property may be and remove the same; thereupon all rights of the lessee hereunder in said property and in the payments theretofore made shall terminate absolutely.” Another provision of the lease was that “the assignee shall be entitled to all the rights of the lessor.” The lease was subsequently assigned by Schock to the General Motors Acceptance Corporation. It appears that Miller defaulted on his payments, and, therefore, the assignee, having given bond in the sum of $650, on Dee. 18, 1928, issued a writ of replevin for the possession of the automobile against Miller. The sheriff took possession of it, at the same time serving the writ, not only upon Miller, but upon John G. Gibble, in whose possession the ear was found. On Dec. 21,1928, Gibble presented his petition, asking to intervene, alleging that the car belonged to him, and permission being granted, he filed a counter-bond in the sum of $24 and retained possession of the automobile. The claim made by Gibble was that a writ of fi. fa. was issued against Miller by him; that the automobile was levied upon and sold by the sheriff, and that he purchased it at that time.

It does not seem to be contended at the present time that the agreement between Schock and Miller was anything but a bailment lease. That being so, the sheriff’s sale to Gibble did not pass the ownership of the car to him. He could obtain no higher rights than Miller, and as Miller did not have the title of ownership, Gibble could not in this way obtain it. It is true that Schock purchased the car from Leon Kramer, and the certificate of registration was made by Kramer to Miller, subject to the encumbrance in favor of the plaintiff; but this arrangement, which is common in the automobile trade, even though questionable, did not vitiate the lease between Schock and Miller and vest such title in Miller as could be levied upon on a judgment given by Miller to Gibble and pass title to the automobile to Gibble. In Braham & Co. v. Steinard-Hannon Motor Co., 97 Pa. Superior Ct. 19, it was held that where the owner of a motor vehicle turns it over to a dealer on account of a new car, and the dealer sells it to a third person under a bailment lease, the fact that the certificate of title is transferred directly from the original owner to such purchaser, instead of its being transferred to the dealer and from him to the new purchaser, .even though the transaction be in violation of the Act of May 24, 1923, P. L. 425, amended by the Act of April 27, 1925, P. L. 286, does not change the transaction from a bailment into ownership so as to make the vehicle liable to execution for debts of the purchaser as against the dealer from whom it was leased.

It is, however, urged by counsel for the intervening defendant that because the plaintiff in its declaration failed to state the value of the automobile, it could not offer such proof upon the trial. This position cannot, in our judgment, be sustained. It must be remembered that this suit is an action of replevin; that it was not brought to recover damages, but for the automobile itself. The fourth section of the Act of April 19, 1901, P. L. 88, provides that “the plaintiff in such action [replevin] shall file a declaration, verified by oath, which shall consist of a concise statement of his demand, setting forth the facts upon which his title to the goods and chattels is based.” That is exactly what the plaintiff did. The seventh section of the same act declares that “if the title to said goods and chattels be found finally to be in a party who has not been given possession of the same in said proceeding, the jury shall determine the value thereof to the successful party, and he may, at his option, issue a writ in the nature of a writ of retomo habendo, requiring the delivery thereof to him, . . . and upon failure so to recover them, or in the first instance, he may issue execution for the value thereof and the damages awarded and costs; or he may sue in the first instance upon the bond given, and recover thereon the value of the goods and chattels, damages and costs, in the same manner that recovery is had upon other official bonds.” It was, therefore, necessary for the plaintiff to prove the value of the automobile in order that the jury should have some basis upon which to determine its value. It was for this reason that the court charged the jury: “The defendant gave his bond and kept this automobile. We tell you that you shall render a verdict in favor of the plaintiff, and, therefore, when you do that, you must say how much that automobile was worth at the time he took possession and kept it. The only evidence on that subject before you is that of Mr. Schock. I think, if my memory serves me right, he said that the automobile was worth $675. If you find that to be true, then your verdict will be in favor of the plaintiff, and you will say then, ‘and we find the value of the automobile to be $675,’ or whatever sum you desire to fix.” Counsel, at the end of the charge, interposed and said they agreed that the automobile should be valued at $335.92, and it was so stated to the jury. The verdict is so entered.

We find no error in the case as tried, and we, therefore, overrule the motion for judgment non obstante veredicto and discharge the rule for a new trial.

Motion overruled and rule discharged.

Prom George Ross Eshleman, Lancaster, Pa.


author: Rossrrat, P. J.,

text:
    Mahoney’s Petition.

      S. Y. Rossiter and T. P. Dunn, for petitioner.

      W. S. Carroll, for respondent.
    July 3, 1930.
   Rossrrat, P. J.,

The petition of Olivia M. Mahoney sets forth that Henrietta M. Sell, now deceased, was the owner of a bond and mortgage against Olivia M. Mahoney for $4500, upon which payment had been made until it was reduced to $2950; . that Olivia M. Mahoney rendered services to Henrietta M. Sell, who, in consideration of such services, just prior to her death, gave and delivered to Olivia M. Mahoney the bond and mortgage for the purpose of having it satisfied of record, but by reason of Henrietta M. Sell’s illness, was unable to do so, and prays that the executors answer this petition.

The executors, by attorneys, entered a rule for a more detailed narrative of the facts, and aver that these proceedings fall under the Practice Act of May 14, 1915, P. L. 483.

In this we do not agree, as we believe this proceeding, being under the Act of March 31, 1823, P. L. 216, 8 Sm. Laws, 131, is sui generis. We do agree, however, that the petition should be more specific and set forth more in detail the time, place, character and value of the services mentioned in the petition and when the alleged bargain was made whereby the plaintiff was to render services for which she claims and where the agreement was made to apply those earnings to the extinguishment of the mortgage. As the defense to the mortgage is in the nature of payment, that defense should be set forth with as much particularity as is required by an affidavit of defense.

Entertaining these views, the petitioner is now, to wit, July 3, 1930, given fifteen days within which to comply therewith.

Prom Otto Herbst, Erie, Pa.


author: Smith, P. J.,

text:
    Friedberg v. Roy Building and Loan Association.

      Paul Reilly, for plaintiff; Samuel E. Kratzok, for defendant.
    January 20, 1931.
   Smith, P. J.,

On April 9, 1928, the Roy Building and Loan Association, in which plaintiff owned shares of stock, decided to merge with the Max D. Willig Building and Loan Association. On May 24, 1929, the summons issued in this suit, but the bill was not filed until April 24, 1930. The plaintiff by his bill claimed the merger was illegal and asked for an accounting and payment. On May 8, 1930, preliminary objections to the bill were filed by the defendant. On July 1, 1930, a decree pro confesso was entered for failure to file an answer. On July 21, 1930, a rule issued to revoke or open the judgment pro confesso and permit the defendant to answer. Argument on this rule was had on September 5, 1930, and on September 22,1930, the rule was discharged. On October.3,1930, the order of September 22, 1930, discharging the rule to show cause why the judgment should not be opened, was revoked and the judgment opened, for the reason that it appeared “that judgment pro confesso was entered in the above entitled case while preliminary objections to the bill were undisposed of.”

The plaintiff now contends that this order of revocation of October 3, 1930, was erroneously entered, and that the judgment pro confesso should be permitted to stand, relying upon Rule 49 of the Supreme Court Equity Rules, which provides that preliminary objections to the bill shall be placed upon the argument list for hearing within ten days after the expiration of the time for amendments, and that if this course is not pursued, all objections will be deemed finally waived, and the defendant must answer within an additional ten days, under penalty of having the bill taken pro confesso. The defendant failed to place its preliminary objections on the argument list within said ten days, and a strict interpretation of this rule would permit the judgment to stand, thus precluding the defendant from answering to the merits.

Rule 51, however, permits the court to open a judgment pro confesso, even after a following ex parte hearing, and to permit the defendant to answer over upon cause shown. The preliminary objections to the bill, taken in connection with the bill itself and the briefs of argument submitted, lead to the inference that the defendant has a substantial defense to the bill, and this being so we feel that under Rule 51 the court should grant the defendant the privilege of answering to the merits. Equity rules are flexible and should be liberally construed to the end that justice may be done. The preliminary objections to the bill must be deemed to have been waived under Rule 49, but the order opening the judgment pro confesso will be permitted to stand.

And now, January 30, 1931, permission is granted defendant to answer to the merits in the above entitled case within fifteen days, under penalty of having the bill taken pro confesso.


author: Stern, P. J., Gordon, Jr., J.,

text:
    Smith, Administrator, v. Pennsylvania Railroad Company.

      Francis J. Walsh, for plaintiff; Barnes, Biddle & Myers, for defendant.
    April 6, 1931.
   Stern, P. J.,

John Null was struck by a train of the defendant company at Delair, New Jersey, on December 4, 1923, and died as a result of his injuries. Suit was begun on March 3, 1924, by Ward Smith, administrator of the estate of John Null, deceased, and a statement of claim filed by said plaintiff April 8, 1924; in it the plaintiff averred that letters of administration had been granted to him by the Register of Wills of Philadelphia County, appointing him administrator of the estate of John Null, deceased, and that Null was killed as the result of the accident at Delair, New Jersey, and specifying the defendant’s acts of negligence complained of.

Of course, the plaintiff as administrator of the decedent’s estate had no cause of action under the laws either of New Jersey or of Pennsylvania, because even in the latter state the action should have been brought by the widow.

On December 2, 1925, counsel for the parties entered into a written stipulation, whereby it was agreed that the plaintiff, Ward Smith, administrator of the estate of John Null, deceased, should “withdraw” from the case, and that Ward Smith, administrator ad prosequendam, should be substituted in his place; and it was further agreed that Ward Smith, administrator ad prosequendam by certification of the Surrogate of the County of Camden, New Jersey, under date of April 20,1925, should be substituted for the plaintiff, Ward Smith, administrator of the estate of John Null, deceased, in the statement of claim theretofore filed in the case as above stated. By the recent ruling of the Supreme Court in the case of Rosenzweig v. Heller, 302 Pa. 279, the statute of limitations had expired at that time, since under that authority the Pennsylvania limitation of one year and not the New Jersey limitation of two years prevailed, but this is immaterial, since counsel for the defendant agreed to the substitution, and, therefore, the statement of claim became duly amended accordingly.

Nothing further apparently was done for a period of nearly five years. On March 20, 1930, the case came up for trial, and, it appearing that the statement of claim as it then stood did not set forth any of the New Jersey statutes showing a cause of action in the plaintiff, Ward Smith, administrator ad prosequendam, nor establishing a right of action in New Jersey for negligence resulting in death, a juror was withdrawn in order to enable the plaintiff to apply for leave to amend the statement of claim. A rule was thereupon taken to show cause why the plaintiff should not be allowed to amend by setting forth the New Jersey statutes allowing a recovery in case of death by negligence, providing that the action should be brought by an administrator ad prosequendam, and containing provisions in regard to what constituted negligence and contributory negligence in such cases. The court discharged the rule to amend. The case then came up again for trial by jury, and when an offer was made to give in evidence the New Jersey statutes the offer was overruled on the ground that they were not pleaded; as a result of which, of course, the plaintiff could not make out a case and a nonsuit was entered, which the court in bane refused to take off.

The question in the case is really as to whether the court was right in overruling the proposed amendments to the statement of claim, because the non-suit followed inevitably upon that ruling.

It is settled beyond the peradventure of a doubt that where an action is brought in a state where the injury did not occur, the plaintiff must allege and prove the existence of a statute of the state where the injury occurred permitting such an action, and the authority and qualification of the plaintiff to sue in the capacity declared upon must be shown in the statement of claim: 17 Corpus Juris, 1283, 1289, and numerous cases there cited. This was directly held in our own state in Hall v. West Jersey & Seashore R. R. Co., 241 Pa. 399. The reason is that at common law no right of action existed for an injury resulting in death, and in the absence of a statute pleaded in the statement of claim it would be presumed that the common law of the state where the accident occurred remained in force as governing the situation, and that that common law was the same as that of the forum where the case was being tried.

We understand that counsel for the plaintiff concedes that no recovery can be had if the statutes of New Jersey are not pleaded and proved. His contention is, however, that, even though the statute of limitations had expired, the court should have allowed him to amend his statement of claim by setting forth the New Jersey statutes. In the opinion of the court, however, to have allowed such amendments would have been to permit a change in the cause of action after the expiration of the statute of limitations, because it is decisively settled that where recovery is sought under the common law an attempt to change the action to one founded on a statute amounts to a change in the cause of action: Allen v. Tuscarora Valley R. R. Co., 229 Pa. 97, 102. In the present case the statement of claim showed no right of action in the plaintiff at all, and, therefore, an amendment which results in showing such a right of action must, by the laws of logic, amount to a change in the cause of action.

Counsel for plaintiff argues that after the new plaintiff, the administrator ad prosequendum, was substituted for the original one, he should have been entitled to a reasonable time in which to file a statement of claim, and that even if several years elapsed, the case not having been nol. prossed, he could now file such a statement in proper form. In other words, he contends that his present attempt is really to file a new statement of claim and not to amend the existing statement of the original plaintiff. It seems sufficient to say, in answer to this ingenious argument, that the agreement of counsel of December 2, 1925, was not merely to substitute a new plaintiff, but, as already pointed out, to substitute the name of the new plaintiff for that of the original plaintiff in the statement of claim as filed. The new plaintiff thus adopted as his own the original statement of claim, with the substitution therein of his name as the new plaintiff. The present plaintiff, therefore, cannot contend that he has never filed any statement of claim; indeed, that he has recognized the contrary is shown by the fact that his motion was to amend the existing statement of claim and not to be allowed to file a new one.

Counsel for plaintiff contends that when counsel for the defendant agreed to allow him to change the name of the plaintiff, this permission carried with it an implied agreement on the part of the defendant to permit further amendments to be made, so as to show under what right the new plaintiff was claiming. The court, however, cannot see any ground for this contention. Counsel for the defendant agreed to the amendment which the plaintiff desired to make, and, if the plaintiff required still further amendments to make out a valid case in his pleadings, it was for him to secure the same either by further agreement between counsel or by application to the court (subject, of eoui’se, to the statute of limitations). We are at a loss to understand how an agreement on the part of the defendant to permit certain amendments impliedly carried with it an agreement to permit such further amendments not then specified as might subsequently be found to be necessary by the plaintiff in order properly to make out a case in his pleadings.

As far as such of the proposed amendments are concerned as relate to the question of negligence and contributory negligence, it is unnecessary definitely to determine whether such amendments should be permitted, although the court is of opinion that it would not be necessary to set forth in a statement of claim statutes which bear on the question of the plaintiff’s contributory negligence. The court is, however, clearly of opinion that this action caixnot be maintained under a statement of claim which does not set forth the New Jersey statutes giving a right of action in a case of death caused by negligence, and providing in whom such right of action exists and by whom the action must be brought; and the court is further of opinion that, since the statute of limitations has long since expired, to permit now an amendment setting forth such statutes would be to permit a change in the cause of action; and, further, that there was nothing in the agreement between counsel of December 2, 1925, which would enable the plaintiff to escape from the existing situation.

For these reasons, the court discharges the rule to amend the statement of claim and overrules the motion to take off the nonsuit which followed from that ruling.

Gordon, Jr., J.,

dissenting. — I cannot concur in the decision of the court in this case. The effect of the discharge of the rule to amend the statement is so harsh, and so out of accord with the fundamental justice of the ease, that I do not believe it is supportable either in reason or in precedent. This perplexed plaintiff has been seeking an opportunity to be heard in the presentation of his case for upwards of ten years, and a technical rule of pleading is invoked by the defendant to deny him a hearing. Whatever plausible legal reasoning may be advanced for the application of such a rule under the circumstances of this case, none but the most subtle legal mind can follow it with understanding, and all must regret a conclusion which works so manifest an injustice. The question before us is one of pleading and the application of its general rules to a specific case. These rules are not intended to harass and obstruct a litigant in bringing his case to trial. Their purpose is to clarify the issue and to bring the parties expeditiously to the bar of the court for their hearing. A rule of pleading which fails to accomplish this is mischievous and has no place in the administration of law. I do not think, however, that the rules of pleading, if properly applied, will accomplish this result, or that the precedents sustain the action of the court.

I cannot agree that either the controlling facts or the law relating to the question before the court in this case justify or require the discharge of the rule to amend the statement of claim. John Null, the plaintiff’s decedent, was killed on December 4, 1923, by a train of the defendant company, in an accident on a grade crossing in the State of New Jersey. In 1924, the plaintiff, in the capacity of administrator, of the decedent’s estate in Pennsylvania, brought suit against the defendant to recover damages for the death, and filed a statement of claim setting forth the capacity in which he sued and the cause of action sued on. That statement disclosed, first, a good cause of action for the death, so far as the circumstances of the accident were concerned; and, second, that the plaintiff had no right to bring the suit, and, in that sense, had no right of action for the death, because, under the law of New Jersey, where the death occurred, the action must be brought by a specially appointed administrator ad prosequendam, and, under the Pennsylvania law, by the widow, and the plaintiff was neither of these persons. To correct this fatal mistake in the suit, the plaintiff then secured his appointment as administrator ad prosequendam by the proper New Jersey authority. He was then in a position to assert the cause of action which arose out of the death of his decedent, and had two courses open to him — either to bring a new suit or to substitute himself in his new capacity in the suit already instituted. On December 2, 1925, therefore, or two days less than two years after the death (the period of limitation for such actions in New Jersey), the parties by their counsel agreed that the plaintiff, Ward Smith, as administrator of the estate of the deceased in Pennsylvania, should “withdraw” from the case, and that “Ward Smith, administrator ad prosequendam by certificate of the Surrogate of the County of Camden, New Jersey, under date of April 20, 1925,” should be “substituted” in his place, and that the new plaintiff should be substituted for the former plaintiff in the statement of claim already filed in the case.

It is probable that, when this agreement was made, the parties supposed that the statute of limitations had not run as to the action, for the decision of the Supreme Court, in Rosenzweig v. Heller, 302 Pa. 279, in which it was held that in such cases the Pennsylvania limitation of one year prevails, and not the New Jersey limitation of two years, had not yet been handed down. However that may be, any mistaken understanding of the law on the part of counsel cannot, of course, affect the question, as pointed out by my brother Stern in the opinion of the majority of the court. The fact remains, therefore, that, when the agreement was made, the statute had already run for almost a year. That being so, the consent of the defendant to the substitution of the new plaintiff constituted, in my judgment, a waiver by it of the operation of the statute, which, of course, can be done in civil actions (Michelin Tire Co. v. Coleman, 179 Cal. 598; 37 Corpus Juris, 721, § 40); and, when once waived, its protection is gone and cannot thereafter be revived.

The pleadings stood thus until the case came up for trial the first time, when it was discovered that a new statement, containing the substitution agreed upon, had not been filed. A juror was, therefore, withdrawn, the case continued, and the rule to amend the statement, which is now under consideration, was taken. The defendant’s objection to the amendment is based upon the well-known rule, that an amendment which changes a cause of action cannot be allowed after the statute has run. Conceding for the moment that the amendment asked for here would change the cause of action, I think that the right to urge this objection has been lost by the defendant, because it waived the statute by agreeing to substitute the present plaintiff after the statute had run. To allow a new plaintiff to come in at such a time, and then refuse him the right to plead his cause, would work a palpable injustice and defeat both the letter and the spirit of the agreement entered into between the parties. It would make of the agreement an empty form, without substance or effect, and would do violence to its plain intendments. The defendant has consented to be sued, and should not now be permitted to close the mouth of its adversary in the pleading and presentation of his case. Had the substitution itself after the statute had run been objected to, there would be force in the defendant’s position, for the real change in the cause of action occurred then. The time to make such an objection has passed, however; the change is an accomplished fact, and the amendment now sought would merely perfect the record in the particulars already agreed upon.

Again, to refuse the amendment would, in my opinion, nullify that part of the agreement which substitutes the new plaintiff in the statement of claim. The proposed amendment only executes the agreement. The paragraph to be amended originally read: “The plaintiff [by reference to the opening paragraph of the statement of claim, ‘Ward Smith, administrator of the estate of John Null, hereinafter for brevity called the plaintiff’] avers that on the tenth day of January, A. D. 1924, letters of administration were granted to him by the Register of Wills of Philadelphia County, appointing him administrator of the estate of John Null, deceased, and the said John Null having been a resident of the City and County of Philadelphia, State of Pennsylvania.” Substituting the language of the agreement in this paragraph, it would read; “The plaintiff [by reference again to the substituted opening paragraph of the statement of claim, ‘Ward Smith, administrator ad prosequendam by certificate of the Surrogate of the County of Camden, New Jersey, under date of April 20, 1925’] avers that on the tenth day of January, A. D'. 1924, letters of administration were granted to him by the Register of Wills of Philadelphia County,” etc. This would be an absurdity, for it would be a contradiction in terms and a falsity, and by no stretch of the imagination could have been intended by intelligent counsel dealing in good faith with each other. The least that the parties intended was. that the paragraph should be so changed in the substitution as to be intelligible, and should read: “The plaintiff avers that he is administrator ad prosequendam by certificate of the Surrogate of the County of Camden, New Jersey, under date of April 20, 1925.” This being so, it is evident that the addition to such a paragraph of a statement of the law of New Jersey, under which the plaintiff acquired his administrator-ship, would in no way change the cause of action. Without the amendment, the paragraph might be open to the objection that it is not sufficiently specific, and, therefore, be subject to a rule for a more specific statement. The amendment here sought would merely clarify and amplify the averment — not change the cause of action. Such an amendment is always permissible, and, for this reason alone, I think the amendment should have been allowed.

But even if the statute of limitations applicable to this action had been two years, so that the substitution of the new plaintiff was made before, and the amendment to the statement sought after, the statute had run, I think it should have been allowed. Strictly speaking, it does not change the cause of action. It does not change the time, place or circumstances of the accident. The suit is still for the same death, occurring ,at the same place and time and from the same cause. The amendment does nothing more than set forth the basis of the plaintiff’s right to bring suit. When the agreement was entered into by counsel, they must have known that it would be abortive without this amendment to the statement, and such a result could not have been intended. It is unthinkable that counsel, in making such an agreement with a professional brother, entertained a secret purpose not to permit the statement to be amended in this particular. Of course, the question never occurred to either counsel, or clear provision would have been made to meet the situation. In these circumstances, therefore, I think the law would raise an implied agreement that this amendment be made as a necessary incident to the substitution agreed upon.

I do not read the authorities relied on by the defendant as supporting its position. In Allen v. Tuscarora Valley R. R. Co., 229 Pa. 97, the amendment sought changed the cause of action after the statute of limitations had run by grounding the claim upon a negligent violation of a different duty prescribed by a different law. This touched the true cause of action as distinguished from a mere allegation as to the person in whom the right of action rested. So, also, in Hogarty v. Phila. & Reading Ry. Co., 255 Pa. 236, a plaintiff, who had counted on a common-law right of action against a railroad, was not permitted to amend his statement so as to ground his claim on a violation of the Federal Employers’ Liability Act. Again, in Card v. Stowers Pork Packing and Provision Co., 253 Pa. 575, the amendment asked for changed the cause of action from one at common law to one under the Factory Act of 1905. In all of these cases, the amendments sought involved a change in the law or facts governing the negligence sued on. They in no way touched the allegations relating to the status of the plaintiff in the case. They do not, therefore, control the question before us.

Of the two remaining cases relied on by the defendant as most nearly ruling this question, La Bar v. New York, S. & W. Ry. Co., 218 Pa. 261, is clearly distinguishable. In it the action was for a death in New Jersey. The suit was brought by the widow, and an agreement substituting the administratrix in place of the widow was refused after the statute had run. There it was the intrusion into the case of the new plaintiff which was successfully opposed— not an amendment to the statement of claim after the plaintiff had come in. The other case relied on, Hall v. West Jersey & Seashore R. R. Co., 241 Pa. 399, impliedly at least supports the view that such an amendment as this can be allowed after the running of the statute. In it a New Jersey administrator ad prosequendami had neglected to plead the statute of that state which vested the right of action in him. The death occurred in 1907 and the case was tried in 1913, six years after suit was brought. Over the defendant’s objection, the trial judge admitted evidence of the New Jersey statute, and, after a verdict in favor of the plaintiff, the case was appealed to the Supreme Court. That court held that, as the law of New Jersey had not been pleaded, it could not be proved, and that there was nothing either in the pleadings or the proofs to disclose a right of action in the plaintiff. Notwithstanding, however, that the statute of limitations had long run against any amendment changing the pause of action, the Supreme Court did not enter final judgment for the defendant, but reversed the judgment with a new venire. It is true that no direction was given to allow an amendment in the court below; but the only logical inference to be drawn from the action of the court in granting a new venire is that the amendment was permissible, notwithstanding the running of the statute. It would have been futile to send the case back for retrial if such an amendment could not have been allowed, for the New Jersey law could not have been proved unless it was pleaded. While this case, therefore, does not directly decide the question before us, its implications point strongly in favor of allowing the amendment. So far as precedent is concerned, there is none which requires the refusal of the amendment, and the last case cited, which is nearest in its facts to the instant case, inferentially supports the contrary view.

After all is said on one side and the other of this technical question, the underlying situation is this. The defendant is charged with having negligently caused the death of John Null. For that death the law holds the defendant responsible in damages and makes the sufferers from the death the ultimate beneficiaries of the compensation to be awarded. They can recover only through a representative, and in this case that representative is Ward Smith. In due time, before the statute of limitations had barred the action, he brought suit against the defendant 'in a capacity that did not entitle him to maintain the action. Later, with the consent of the defendant, he formally came into the case in his correct capacity. Why should he not be permitted to state in his pleadings the true capacity in which he sues? He is but a kind of trustee. The real plaintiffs are, and from the beginning have been, the beneficiaries of the suit. Smith is only their agent designated by law. Legal dialectics may divide him into different personalities, but the plain thinker will see little in such reasoning but a hairsplitting distinction. From the very beginning of the suit this plaintiff has been in the case, in one designation of his capacity or another, asking for a redress of the same asserted wrong, and the defendant has agreed to his being in it under his present designation. It is difficult to believe that a theory which would now deny him a chance to present his claim is either good law or sound ethics. A legal system which produces such a result defeats the ultimate aim of all law; to secure right and justice to all men in the complicated relations of human society.

The equities of this case are all with the plaintiff, and, for the reasons stated, I would grant the amendment asked for, and have dissented from the decision of the court discharging the plaintiff’s rule.


author: Brown, Jr., J.,

text:
    N. E. Henderson & Son, Inc., v. The F. H. Smith Company.

      Ralph S. Croskey, for plaintiff; J. Gowen Roper, for defendant.
    March 19, 1931.
   Brown, Jr., J.,

This action was against the defendant as an undisclosed principal for the sum of $4850, with interest from December 31, 1927, alleged to be due upon a contract between plaintiff and one Joseph Rabinowitz for the installing of lighting fixtures in an apartment house.

On December 2, 1929, a rule was made absolute upon defendant to produce at the trial certain books, records, contracts, papers and canceled checks, covering the erection and construction of the apartment house, in the possession of defendant or in its control.

During the trial on January 13, 1931, judgment by default was entered against the defendant under the provisions of the Act of February 27, 1798, 3 Sm. Laws, 303, providing as follows: “the Supreme Court and several Courts of Common Pleas in this state, shall have power, in any action depending before them, on motion, and upon good and sufficient cause shewn, by affidavit or affirmation, and due notice thereof being given, to require the parties, or either of them, to produce books or writings in their possession or power, which contain evidence pertinent to the issue; and if either party shall fail to comply with such order, and to produce such books or writings, or to satisfy said courts why the same is not in the party’s power so to do, it shall be lawful for the said courts, if the party so refusing shall be a plaintiff, to give judgment for the defendant as in cases of non-suit, and if a defendant, to give judgment against him or her by default, as far as relates to such parts of the plaintiff or plaintiffs demand, or the defendant or defendants defence, to which the books or papers of the party is alleged to apply.”

“The defendants then, according to the act of assembly, when such a rule is made, must either produce the writings named in it, or satisfy the judge why it is not in his power to produce them. These are the only answers he can make at the trial; and as the defendant in the present case, withheld several of the papers ordered to be produced, the only question is, whether the evidence he gave to account for the non-production of them, was satisfactory:” Tuttle v. The Mechanics and Tradesman’s Loan Co., 6 Wharton, 216, 219.

Defendant’s assistant secretary testified that the papers covered by the rule were not in its possession or control, but in the possession of the Department of Justice in Washington by virtue of subpoenas issued under the direction of the Supreme Court of the District of Columbia. He did not present the subpoenas for the examination of the trial judge. If the defendant had said that the papers were lost or that it had none, its inability to produce might have been adequate: Gilpin v. Howell, 5 Pa. 41, 55; Cottrell v. Warren, 18 Pa. 487. It did neither, but relied upon subpoenas issued by another court. Thus, an explanation was attempted, but, as it was incumbent upon defendant to “satisfy” the trial judge “why” it was not within its power to produce, he should have been afforded the opportunity to read the subpoenas to ascertain whether or not defendant was justified in failing to comply with the rule. The affirmation that the defendant did not have in its possession or custody the papers called for by the rule, and it was not in its power to produce same, is not sufficient: Wright v. Crane, 13 S. & R. 447. As Chief Justice Tilghman pointed out in that case (page 451), “the party is required, not barely to say that the production of the papers is not in his power, but why it is not. It may be that it is not in his power, because he has put it out of his power, by his own act. He may have delivered them to another person, for the purpose of putting them out of his power. Now, the court has a right to be satisfied on this point, for so says the act of assembly.”

The dissatisfaction of the trial judge with the explanation made by the defendant was not unreasonable. Examination of the subpoenas might have revealed that they did not cover the papers called for by the rule. Surely the trial judge was entitled to see them. The assistant secretary testified that the subpoenas were in the possession of a vice-president of the defendant who was not in court. This would have justified the trial judge in believing that the defendant was deliberately evading the court’s order.

Defendant appeals to the discretion of the court to grant its motion for new trial by attaching to its paper book a copy of a subpoena issued by the Supreme Court of the District of Columbia and a copy of receipt dated October 8, 1930, signed by a special assistant to the Attorney General, for the papers listed in the subpoena. This is not the proper way to bring these documents before us. They are not after-discovered evidence. No request for continuance or for additional time to locate them was made, and we do not feel justified in helping a defendant which, so far as the record discloses, did not help itself. However, we have examined the subpoena and note that the defendant was commanded to attend the Supreme Court of the District of Columbia to testify, and to produce certain papers therein enumerated, on October 8, 1930. That was all that was required. The subpoena did not give that court nor the Attorney General possession of the papers. It does not appear that they were impounded. Nothing has been disclosed to us that would have prevented their production at the trial here. Defendant has not shown that it could not have re-possessed itself of them so as to have complied with the order of this court. Apparently it has permitted the papers to remain with the Attorney General, an act of grace which left them entirely within defendant’s control. “If the defendant has been injured, it is his own fault, as it is manifest, there has been a want of candor and fair dealing on his part. The act imposes no hardships:” Cowles v. Cowles, 2 P. & W. 139, 143.

Defendant argues in support of its motion for new trial that the lack of recent decisions under the Act of 1798 is “strongly persuasive of the belief that the act, penal in its character, has not been invoked nor a judgment given under it for so long a time as. to make it to all intents and purposes obsolete.” Defendant overlooks the possibility that there may have been decisions which have not been reported. As to similar argument made in Wright v. Crane, supra, as to the Act of May 22, 1722, 1 Sm. Laws, 131, 144, Chief Justice Tilghman said “it must be a very strong case, to justify the court in deciding, that an act standing on the statute book, unrepealed, is obsolete and invalid. I will not say, that such a ease may not exist — -where there has been a non user for a great number of years — where, from a change of times, and manners, an ancient sleeping statute would do great mischief, if suddenly brought into action — where a long practice, inconsistent with it, has prevailed, and especially, where, from other and later statutes, it might fairly be inferred that, in the apprehension of the legislature, the old one was not in force. But this is not the case with the act of the year 1722. Its provisions are not unsuited to modern times. It imposes no hardships on the defendant, who is secured in a fair trial. And, indeed, it has this advantage, that the proceedings are conducted under the eye of the court. There is no pretence, therefore, for saying that it is obsolete.”

. A new trial is, therefore, refused.


author: Davis, J.,

text:
    In re Le Roy N. Bowes.

      D. Hays Solis-Cohen, for Committee of Censors.
    May 5, 1931.
   Davis, J.,

This is a petition presented by the Committee of Censors of the Bar Association of Philadelphia, praying for a rule to show cause why Le Roy N. Bowes should not be disciplined under Rule 215 of the rules of court. Due notice of the rule was given respondent, who did not appear to make answer to the charges presented against him.

There were complaints with reference to the conduct of respondent with respect to proceedings for divorce which he undertook to institute on behalf of two women. He obtained substantial sums of money from them and either instituted no proceedings or failed to continue them. Neither did he return the money to his clients. In one case he arranged for a fictitious residence in .Philadelphia, the libellant residing in New Jersey. He also induced two women clients, one of them illiterate, to sign bonds or judgment notes for large sums of money by misleading representations as to the import of the documents. As a result, judgments were entered against them.

No defense was offered. In our opinion, a man capable of such practices is unworthy of the confidence of the public or the court. The rule of the Committee of Censors will, therefore, he made absolute and a decree entered disbarring the respondent.


author: Lamorelle, P. J.,

text:
    Mayhew’s Estate.
    No. 1.

      William H. Peace and B. M. Bemick, for petitioners.

      H. Crowell Pepper, contra.
    February 17, 1931.
   Lamorelle, P. J.,

The petitioner is Eleanor E. Pike, one of the six children of Gertrude E. Mayhew. Four of the children file an answer, agreeing that the real estate may be partitioned. The sixth child, Gertrude P. Kuser, objects, alleging that her five minor children, who she claims are interested in the estate, are’not made parties. Whether or not any of the children of the six children who survived Gertrude E. Mayhew have any interest in the estate depends upon the interpretation to be given the will of Lavinia M. Mayhew, who died in 1885.

Her will, which is dated January 6, 1872, and which has been duly probated, provides as follows:

“I give and bequeath to my said daughter Gertrude Estelle Mayhew all my personal property and the interest of all real estate belonging to me, as long as she lives; but if my said daughter Gertrude Estelle Mayhew should marry, then at her death the interest of my Real Estate goes to her issue.
“But, in the event of my daughter’s death, without issue, all my property shall go to the Home for Destitute Colored Children, located at Maylandville on the Darby Road.”

The daughter of testatrix, Gertrude Estelle Mayhew, who afterwards intermarried with Charles P. Pike, died September 26, 1929. She was survived, as is hereinbefore stated, by six children, Mary Agnes, intermarried with William F. Hart; Margaret B., intermarried with George D. Stull; Gertrude P., intermarried with William A. Kuser; Charles E. Pike, Joseph F. Pike and Eleanor E. Pike. In addition to these six children, there are twelve grandchildren, being issue of the above-named children.

The question for decision as set forth in petitioner’s paper book is this:

“(a) Where a will provides that upon the death of a daughter, a life tenant, ‘the interest of my real estate goes to her issue,’ and the daughter at the time of her death was survived by six children and no issue of deceased children, are the living children of these six children included in the term ‘issue?’ In other words, is the estate now distributable among the six living children of the life tenant or among her eighteen living descendants?”

We are of opinion, and so rule, that the six children are alone entitled and that their issue may not compete with their parents, and should not, therefore, be parties to the pending proceeding. We base our ruling upon the opinion of Judge Gest, recently rendered in the Estate of John Lucas, as of October Term, 1901, No. 485, and affirmed by this court in a per curiam opinion [14 D. & C. 624].

Prior to the decision above referred to, there seemed to be no case in Pennsylvania directly in point, and it is contended by the respondent’that the present case does not come within our ruling in the Lucas matter. Judge Gest gave thorough and careful consideration to the different views held at different times by different courts as to the meaning of the word “issue,” and his final conclusion, as embodied in the adjudication, is as follows:

“I am inclined to favor the view of the Massachusetts Court and to hold that there is a strong prima facie presumption against a testator intending, in a gift to issue, even with the words ‘share and share alike,’ to include parents and children as taking concurrently. See Lennig’s Estate, 12 D. & C. 51, at p. 56, where, however, the point was not stressed.”

By this Judge Gest held, in effect, that a stirpital distribution is presumed to be intended, unless some other language of the will discloses a contrary intention. In the instant ease we have nothing but the word “issue,” neither qualified, modified nor explained by any context, and for these reasons we hold that where there are children and living children of those children, the children take to the exclusion of their issue.

Another contention of the respondent is that the real estate should not be partitioned now, because realty under existing conditions is not readily marketable. It does not seem to us that this is a matter of any importance. It was not stressed in argument, and to deny the right of petitioner might result in grave injustice. Irrespective of values, all parties should be placed on the one footing, and it is within the power and discretion of the court to refuse to approve a sale, in event that a sale becomes necessary, if, in our judgment, the price is inadequate.

The prayer of the petition is granted; counsel to prepare a decree proper in the premises.


text:
    Mayhew’s Estate.
    No. 2.

      H. Crowell Pepper, for petitioners.

      William H. Peace and R. M. Remick, contra.
    February 17, 1931.
   Lamorelle, P. J.,

This is a petition by Albert H. Ladner, Jr., Esq., guardian ad litem for George Daniel Stull, Robert Paul Stull, John Roger Stull, Beatrice Louise Stull, Roberta Marie Pike, Muriel Louise Pike and William Francis Hart, minors, for a citation to show cause why he should not be allowed to intervene as a party defendant and file an answer to the petition of Eleanor E. Pike for a citation to show cause why an inquest in partition should not be granted.

Citation having issued, in due course answers were filed by other parties in interest denying that the said minor children had any interest whatsoever in the estate.

The question involved is thus stated in the paper book of the respondents:

“Where a will provides that upon the death of a daughter, a life tenant, ‘the interest of my real estate goes to her issue,’ and the daughter at the time of her death was survived by six children and no issue of deceased children, are the living children of these six children included in the term ‘issue,’ so that such living issue of living children of the said life tenant are entitled to intervene in partition? In other words, is the estate now distributable among the six living children of the life tenant or among her eighteen living descendants?”

What we have said in our opinion this day filed in the proceedings in partition is pertinent, and for the reasons therein set forth we refuse the prayer of the petition and dismiss the petition, at the costs of the petitioner.


text:
    Mayhew’s Estate.
    No. 3.

      H. Crowell Pepper, for petitioners.

      William H. Peace and R. M. Remick, contra.
    February 17, 1931.
   Lamorelle, P. J.,

This is a petition by Albert H. Ladner, Jr., Esq., guardian ad litem for Gertrude M. Kuser, Eleanor C. Kuser, William A. Kuser, Jr., Marie Louise Kuser and John D. Kuser, minor children of Gertrude P. Kuser, for a citation to show cause why he should not be allowed to intervene as a party defendant and file an answer to the petition of Eleanor E. Pike for a citation to show cause why an inquest in partition should not be granted.

Citation having issued, in due course answers were filed by other parties in interest, denying that the minor children of Gertrude P. Kuser had any interest whatsoever in the estate.

The question involved is thus stated in the paper book of the respondents:

“Where a will provides that upon the death of a daughter, a life tenant, ‘the interest of my real estate goes to her issue,’ and the daughter at the time of her death was survived by six children and no issue of deceased children, are the living children of these six children included in the term ‘issue,’ so that such living issue of living children of the said life tenant are entitled to intervene in partition? In other words, is the estate now distributable among the six living children of the life tenant or among her eighteen living descendants?”

What we have said in our opinion this day filed in the proceedings in partition is pertinent, and for the reasons therein set forth we refuse the prayer of the petition and dismiss the petition, at the costs of the petitioner.