author: Fleming, P. J.,

text:
    Hartsock v. Winslow.

      S. D. Gettig and John J. Bower, for plaintiff.

      John Blanchard, for defendant.
    April 4, 1928.
   Fleming, P. J.,

This is an action in trespass to recover damages for the killing of two cows belonging to the plaintiff by collision with defendant’s automobile along the Buffalo Run Road in Patton Township, this county, on June 15, 1925. On May 25, 1927, a verdict was rendered in this court in favor of the plaintiff in the sum of $200. At the close of testimony, defendant’s counsel had requested the court to give binding instructions to the jury in defendant’s favor, which point was refused without reading and with the attendant result above noted. The matter is now before us on consideration of defendant’s motion for judgment non obstante veredicto.

'In considering such motion, we disregard defendant’s testimony, except wherein the same is corroborated by that of the plaintiff, and we treat the plaintiff's testimony and all proper inferences to be drawn therefrom as established. In this light stands before us the question for our determination, viz., “Is the testimony adduced on the part of the plaintiff sufficient to require submission to the jury of the question of the existence or non-existence of negligence on the part of the defendant?”

On the morning of the accident, the plaintiff was driving four cows from his barnyard to his pasture-field, situated about one-quarter of a mile in an easterly direction along the State highway leading from Bellefonte to Tyrone, via Warriors Mark, and commonly known as the Buffalo Run Road. This road has a macadam surface estimated, but not measured, by the plaintiff to be eighteen feet in width at the point of the accident. On each side of the road was an embankment. Two of the cows were on the northern (plaintiff’s left) side of the road and the other two cows were on the southern (plaintiff’s right) side of the road. The cows were not walking abreast, nor were they in pairs, but with one cow directly behind the other. All four cows were on the macadam. They were proceeding up a marked grade in the road and were 1401 feet from the top of the hill when struck. Plaintiff was behind the two cows on the southern side of the road about a rod in the rear of the second or rear cow. Defendant was proceeding westwardly along the State highway and was required to ascend a hill for some distance before reaching the top of the hill which was distant 1401 feet from' the scene of the accident. Plaintiff testifies that defendant’s view of the cows began when within sixty-five feet of the top of the hill, or 2051 feet from the scene of the accident. This is corroborated by plaintiff’s brother. Defendant came over the hill-top and ran into the two cows proceeding eastwardly on the southern side of the road, injuring them so badly as to require them to be killed by the veterinarian called by plaintiff to examine them. The value of the cows was $100 each.

The settled rule imposes upon the plaintiff in actions of this kind the duty of describing, picturing or visualizing what actually happened at the time of the accident in such a manner as to enable one fixed with the responsibility of ascertaining the facts to find that defendant was guilty of negligence: Mack v. U. S. Gypsum Co., 288 Pa. 9, 11; Fisher v. Amsterdam, 290 Pa. 1, 3. Has this duty been fulfilled?

The mere fact that plaintiff was compelled to use this highway to drive his cattle to his pasture-field did not, per se, confer upon him a superior right in its use. Nor does the fact that the defendant elected to use such road to reach his destination give to him any right to use the same without due regard for others. Upon each was imposed the duty of using ordinary care and caution in their use of the same. Parties lawfully using a public street owe to each other the duty of reasonable and ordinary care, and each is justified in assuming that the other will so act: Baker v. Fehr et al., 97 Pa. 70. In this last-cited ease, Mercur, J., says: “It is settled law that a jury shall not be permitted arbitrarily and without evidence to infer there was negligence.” Again, we find the same authority speaking as follows: “What is negligence and what is ordinary care must generally be submitted to the jury. This is so if there be any dispute as to the acts claimed to establish the alleged negligence; but negligence is not to be found without evidence. It is not to be presumed from the mere fact of the occurrence of an accident causing injury or death.”

Has the plaintiff met the burden thus imposed upon him? We are inclined to think that he has not done so. It is true that the accident might have been avoided. Defendant could have stopped his car immediately upon coming in sight of the cattle. Likewise, plaintiff could have seen to it that his cows were all upon the southern side of the road, thus leaving the usual or right-hand side open for the passage of the defendant. These are the extreme possibilities. There appears to be no evidence of want of care on the part of either of the parties to this suit, unless it might be said that plaintiff should have considered the likelihood of a vehicle coming over the top of the hill with power sufficient to enable it to surmount the gi’ade and have thereby increased the degree of care exercised by him as the top of the hill was approached by having his cattle on one side of the road-bed and not upon both sides, as he admits in his testimony. It is not negligence not to foresee and avoid the barely possible: Miller v. Cohen, 173 Pa. 488, 492.

Plaintiff’s testimony and that of his witnesses is prolific as to the nature of the road, the hill, the mail-box and other features pertaining to the scene of the accident, as well as concerning the condition of the cattle following the same. It is entirely silent upon the manner in which defendant operated his car, other than to say that defendant was driving too fast. This is not sufficient evidence of negligence: Keller v. Conestoga Traction Co., 45 Pa. Superior Ct. 462, 464. In this case, the Superior Court says: “The speed of the car is mentioned as going ‘fast’ and ‘very fast,’ but these terms are meaningless unless there is some standard with which to compare the speed. The time, place and comparative rate of speed are equally important in such cases. One man may think five miles an hour excessive and another insist, with equal honesty, that ten is a reasonable one.” Other than the complaint that “he (meaning defendant) could have gone between those cows if he had not been going too fast.” and a repetition thereof later in the testimony, there is nothing to indicate that the defendant was in any manner responsible for the accident. As we have shown, such testimony as to speed has no probative valúe whatsoever.

The defendant approached the top of the hill in a lawful manner, no testimony to the contrary having been shown, and was confronted with four cows proceeding toward him, two of which were on his right-hand side of the road. Taking the plaintiff’s estimate of the width of the road at eighteen feet and considering the position of the cows as admitted by the plaintiff, the elevation of the road and all the physical conditions which confronted the defendant, as well as the utter absence of any testimony to show improper operation of his ear by the defendant, the court is of the opinion that binding instructions for the defendant should have been.given. The plaintiff has failed to describe, picture or visualize what actually happened at the time of this accident in such a way as to enable the jury, that body charged with the responsibility of ascertaining the facts, to find that this defendant was guilty of negligence.

And now, April 4, 1928, defendant’s motion is sustained and judgment entered for the defendant non obstante veredicto.


source: Caselaw Access Project

author: Smith, P. J.,

license: Public Domain

text:
    Lindner et ux. v. Forest City Borough.

      T. A. Doherty, for plaintiff; W. A. Skinner, for defendant and intervener.
    April 12, 1928.
   Smith, P. J.,

The above was an action in trespass to recover damages for injuries received because of the alleged negligence of the municipal authorities of the borough defendant in not maintaining and keeping in repair a sidewalk along the easterly side of Main Street in said borough, its exact location being specifically and definitely set forth in plaintiffs’ statement as “in front of premises owned by the ICelz Estate;” the alleged defect therein being stated as a “deep excavation of hole ... to about the depth of ten or twelve inches,” without maintaining a proper barrier against the same.

At the close of the plaintiffs’ evidence, the learned attorney for the defendant moved for a compulsory non-suit, assigning three reasons therefor. The “second,” and being the only one necessary to notice in our disposition of the motion, briefly stated, is the substantial and material variance between the allegation of plaintiffs’ statement as to the sidewalk in question being adjacent to and fronting the “Kelz Estate,” and the probata, viz., that the evidence discloses its location to have been in front of property owned by the “Forest City Lumber Company.”

At the argument of the present motion, the learned attorney for the plaintiffs frankly stated that, after reading the transcript of notes of testimony taken on the trial, he had not discovered sufficient upon which to base an argument in support of the motion, though not affirmatively consenting that the motion be overruled, an attitude entirely to be commended, as we have verified, after a careful reading of the evidence so transcribed by ourselves, by which it appears clearly established that the locus in quo of the alleged defective sidewalk where the accident and resultant injury to the plaintiffs occurred, was in fact in front of the property of the “Forest City Lumber Company.”

In Tarentum Lumber Co. v. Marvin, 61 Pa. Superior Ct. 294, the principle is stated that, “although the allegata and probata may not entirely agree, if the defendant was not misled and the variance does not in any manner affect the trial on its merits, or set up a different cause of action, or impose any different burden on the defendant, the variance will not be considered material.” And this was the opinion expressed as to the status of the case from which this quotation is taken. Other illustrations to the same effect are Ponti v. Philadelphia, 63 Pa. Superior Ct. 428; Young v. Quaker City Cab Co., 87 Pa. Superior Ct. 294; Lineaweaver’s Estate, 284 Pa. 384.

This brings us to a consideration of whether the variance at bar does cast a different and undue burden upon the parties defending. And we say parties plural because of the fact that before the jury was sworn, on motion, Elizabeth Tighe, as the then alleged sole, or, as interested in the “Kelz Estate,” part owner of the property in front of which it was alleged by the plaintiffs in statement filed the accident occurred, was permitted to interpose defense as an intervener, upon notice to so appear served by the borough defendant authorities, making her in a substantial degree an interested party defendant, apparent from the authorities of City of Bradford v. Barry, 254 Pa. 303, and Philadelphia v. Bergdoll, 252 Pa. 545, that “when the owner has had notice to come in and an opportunity to defend the prior suit against the municipality, a judgment therein concludes him (such owner) on the facts relating to the evidence of the defect in the sidewalk, the extent of the damages suffered by the injured person, and the latter’s due care at the time of the accident,” in a subsequent suit brought against such owner, and by the further language that the foregoing principle “does not relieve the municipality from the burden of showing the defendant (owner) had due notice of the defect in question,” indicates the then only defense against such action by the municipality is that he or she had no notice, actual or constructive, of such defect.

The owner of the property affected, either Kelz’s estate or Elizabeth Tighe as intervener, is, therefore, substantially and materially interested in the effect attributed to the variance between allegata and probata at bar, in that its or her eventual liability for the amount of any verdict against the borough defendant upon the allegata and probata presented would be practically irrebuttable in the subsequent action by'the borough for indemnity, subject to the single defense of lack of notice of defect alleged to have been negligently permitted to exist.

We are compelled, therefore, to conclude that the variance here interposed is fatal to the action in the absence of amendment allowed, no request for which was presented.

It now remains only to determine whether the motion for compulsory non-suit was the proper remedy. That it is so we have the authority of Kehres v. Stuempfle, 288 Pa. 534, where .it is so expressly ruled in the second of the three methods by which the question can be legally raised.

Therefore, and now, to wit, April 12, 1928, the motion to strike off compulsory non-suit is refused. Exceptions noted and bill sealed for the plaintiff.

From Gerritt E. Gardner, Montrose, Pa.


author: Martin, P. J.,

text:
    Girard Trust Co. v. Aetna Casualty and Surety Co.

      J. D. McCoy and A. H. Wintersteen, for plaintiff.

      F. L. Ward, for defendant.
    July 31, 1928.
   Martin, P. J.,

At the trial, both parties submitted requests for binding instructions. That of the defendant was affirmed. The suit was upon a bond given by the defendant as surety for the performance of the conditions of a lease by the lessees, who were the principals in the bond. The defenses advanced at the trial and urged in support of the contention that the plaintiff cannot recover in this suit are: (1) That the lease, for the performance of the conditions of which the bond was given, was never in force; (2) that the bond was not an enforceable obligation of the defendant, it not having been accepted by plaintiff; (3) that the bond was not an enforceable obligation against the defendant by reason of defaults by the principals under said lease, existing and known to the plaintiff at the time the bond was delivered; (4) that the condition of the bond requiring five days’ notice of default of the principals to be given to the surety was not met by plaintiff;. (5) that the defendant is relieved from liability by the wrongful ouster of the principals through ejectment proceedings brought by the plaintiff; (6) that the proofs of damage for the alleged defaults of the principals were insufficient to sustain recovery.

The lease, for the performance of which the bond was given, was dated Jan. 2, 1922. It was for a term of fifteen years and was given to take the place of a prior fifteen-year lease dated Jan. 26, 1918, to Cosgrove & Company, and by them, with the consent of the lessor, the premises were sublet to Thomas P. Curry, one of the parties to the present lease, with certain guaranties by Cosgrove & Company. In September, 1920, the plaintiff entered judgment in ejectment in Somerset County, Pennsylvania, against Cosgrove & Company, who entered a rule to open the judgment and another rule to strike off the judgment. The rule to strike off was discharged without a disposition of the rule to open the judgment. On Dec. 23, 1921, the Girard Trust Company, as lessor, entered into an agreement providing for the lease involved in the present suit for a period of fifteen years from Jan. 2, 1922, and for the payment of $5214.64, overdue royalties, taxes and charges, with provisions that upon the execution of the new lease — the one involved in this suit — all disputes with Cosgrove & Company, including the suit in Somerset County, should be settled and a certified check of Cosgrove & Company, held to secure the performance of the lease, should be returned to them. The evidence with respect to this agreement of Dec. 23, 1921, was properly received at the trial. It indicated how and when the then-existing lease was to end and furnished an explanation for the non-delivery of the lease involved in the present suit.

While delivery of a written lease, or a copy thereof, to the lessee may not be essential to its validity or enforcement, yet, where the parties clearly contemplate the delivery of the written evidence of the lease before it is effective, the lease is not in operation until the delivery is made. The question of the time when the lease is to begin is determined by the intention of the parties. If only one copy of a written lease is made and held by the lessor, and where this is contemplated by the parties, the execution of the lease by the lessee and permitting the written lease to rest with the lessor is a suifieient delivery; but where the parties provide for a lease in triplicate, one copy of which is to be held by the lessor and one copy by each of the lessees, and the correspondence indicates that the lease is not to be in force until properly executed and delivered, this intention becomes a part of the contract and the lease is not in force until delivery, unless delivery is waived by the parties. If, notwithstanding non-delivery of a copy of the lease, the parties take possession, pay rent and comply with the terms of the lease, the physical delivery of the writing itself will be considered as waived.

In the present case, the lease was dated Jan. 2, 1922. The acknowledgment of the lessees was made on June 1st of that year, and the acknowledgment of the lessor on July 6, 1922. The parties contemplated acknowledgment of the lease, and it was not operative before acknowledgment. The correspondence shows that the lease was not executed on June 1, 1922, when it was signed and acknowledged by the lessees; that on June 28th the leases were returned to the lessor with seals affixed by the lessees as requested, but not executed by the lessor; and the evidence shows that, after acknowledgment and execution by the lessor, the triplicate copies were retained and none ever sent to the lessees. The lease could not have been considered in force prior to Dec. 13, 1922, the time when the lessees met the request of the lessor to send the bond required by the lease. On July 11, 1922, the plaintiff wrote to the agent of the lessees asking for the bond to “close the lease,” which indicates that the lessor did not consider the lease closed until the receipt of the bond. It is questionable whether or not the lease could be considered as “closed” prior to Aug. 27, 1923, when the suit in Somerset County was marked settled and the certified check of Cosgrove & Company returned to them, as provided by the agreement of Dec. 23, 1921; and it is a proper legal conclusion that the lease was never in force, owing to non-delivery of copies to the lessees, in the absence of evidence of a waiver by the lessees.

The date when the lease became operative, if at all, is important to determine the liability of the surety on the bond. If the lease was never in force, the bond had no life, and if the lease only became operative at a certain time, then the bond could not be said to cover any default accruing prior to the time when the lease began to operate. The date is important also in determining the duty of the lessor to the surety with respect to defaults upon the part of the lessees existing and known to the lessor prior thereto.

The bond upon which plaintiff has sued was dated Sept. 23, 1923, the condition being: “If the said principals shall well and truly and faithfully carry out and perform the conditions contained in said agreement dated January 2, 1922, then this obligation shall be void; otherwise to be and remain, in full force and effect.” It was subject to the express condition “that notice of default under this obligation shall be given to the surety at its home office, Hartford, Connecticut, by registered mail, within five days after discovery of such default.” There was a further provision that no suit should be brought thereon after Sept. 23, 1923; and that it might be continued in force from year to year by consent of the parties and the issuance of a renewal certificate. The bond was sent to the plaintiff on Dec. 13, 1922, following a request for it on July 11, 1922, to “close the lease.” While the evidence does not show any express rejection of the bond, there is evidence that it was not satisfactory to the lessor and was not accepted by it. While formal acceptance may not be necessary, yet where, as here, the lease was not to be operative until the bond had been furnished, there should be evidence of acceptance by the obligee. The evidence does not prove an acceptance, but, in effect, a rejection. As late as May 15, 1923, Mr. Wintersteen, counsel for the Girard Trust Company, trustee, the lessor and obligee in the bond, wrote to the attorney for Cosgrove & Company that the bond was not satisfactory and he “could not advise the trustee to accept it in lieu of the certified check,” referring to the check of Cosgrove & Company, which was to be surrendered on the consummation of the lease. On July 9, 1923, the obligee sent letters to Curry and McDermott, the lessees, in the nature of a notice, objecting to the form of the bond as not being in accordance with the conditions of the lease and asking for a new bond. At this time the lease was not in force and the bond was not acceptable to the obligee. There is no later evidence of any notice or action that suggests acceptance of the bond, unless it is the action of the obligee in returning the certified check to Cosgrove & Company and marking the lawsuit in Somerset County settled on Aug. 27, 1923. After the position taken by counsel and by the obligee, it was incumbent upon it by some words or action to accept the bond before it could be considered in force.

Assuming that the lease was effective, as contended by plaintiff, from Jan. 2, 1922, and that the bond was binding upon the defendant from the time of its delivery to the obligee, on Dec. 13, 1922, the evidence discloses that the lessees had committed repeated defaults in payment of monthly royalties falling due prior to this time. This was known to plaintiff, and it was in duty bound to inform the surety when the bond was delivered in December, 1922. The surety might have refused to be responsible for the performance of the contract which had repeatedly been broken. Neglect to inform the surety when the bond was delivered was in effect a fraud upon the surety.

At the trial it was assumed that the minimum royalties were payable not later than the last day of the month succeeding that in which they accrued. This assumption was erroneous. Under the terms of the lease, the minimum royalties fell due on the 30th of the current month in which they accrued. The lease provided that the royalties for coal mined shall be paid “on the last day of each month for all coal mined, sold, shipped or taken away from said premises, or sold or used at the mine, during the preceding month;” but paragraph 2 of the lease (page 47, Notes of Testimony) provides that the minimum royalty shall be fifteen cents per ton on 40,000 tons annually, payable “in case the minimum amount of coal is not mined . . . monthly to lessor, on or before the last day of each month.” The monthly payment was one-twelfth of the yearly minimum, or $500. The royalty for coal mined or taken away or used was to be paid for on the last day of the month following that in which it was sold or taken away, but where coal was not sold or taken away, the minimum royalty was to be paid on or before the last day of each month; and under this construction, the default of the lessees was greater and longer continued than was assumed by the parties at the trial. In other respects the conditions of the lease were broken prior to the delivery of the bond to the plaintiff. The condition of the mine, inside and outside, the buildings, machinery and equipment, of which the plaintiff complains and for which it is seeking to hold the defendant responsible under the bond, must have been known as early as November, 1922, when an inspection of the mine was made at plaintiff’s request and by plaintiff’s agents. The formal report of the engineer was made to plaintiff on Dec. 16, 1922, but the knowledge of its agents, employed for this purpose and acquired in November, must be taken to be the knowledge of the employer. This was within the knowledge of the plaintiff at the time of the delivery of the bond, and no notice thereof was given to the defendant. This defense is conclusive of the claim of plaintiff and sufficient warrant for binding instructions.

The condition of the bond requiring five days’ notice to the surety of any defaults of the principals was not met by the plaintiff. The notices were not given within five days after knowledge of defaults, excepting the removal of property on July 12, 1923, notice of which was given to the surety July 14, 1923. This notice was within five days, but the evidence failed to show that the property removed was covered by the terms of the lease prohibiting removal of property. There was not sufficient evidence to show that the property removed belonged to the plaintiff or was subject to its control. The evidence indicated that this property 'belonged to Curry individually. If this property had been within the terms of the lease, there was no evidence for submission to the jury showing its market value. Those who attempted to fix figures made estimates or gave opinions of values without qualifying as possessing knowledge of market values upon which to base an opinion. The lessees failed to pay the minimum royalty for May, 1923, amounting to $500. Notice of this non-payment was given to the surety on July 2, 1923, but this royalty was due on May 31st and not on June 30th. The notice was not in time. The notice of July 16, 1923, related to matters known to the plaintiff in December, 1922.

The surety is discharged from liability when the obligee does anything prejudicial to the rights of the surety. On July 17, 1923, plaintiff entered an amicable action in ejectment and confession of judgment in the courts of Somerset County against the lessees, and on July 24th a habere fachas possessionem issued, under which possession of the leased premises was delivered to plaintiff by the Sheriff of Somerset County. In August, 1923, a petition was presented to the Court of Common Pleas of Somerset County, upon which rules issued to open and to strike off the judgment in ejectment. An answer was filed by plaintiff containing an averment that no bond was ever furnished complying with the terms of the lease. On Feb. 6, 1924, the judgment was vacated and stricken off, for the reason that thirty days’ notice of default and demand for performance had not been given, which was a prerequisite to the confession of a judgment in ejectment under paragraph 12 of the lease. This violation of the provisions of the lease must have been prejudicial to the position of the surety with respect to its principals, for the possession of the property was not only taken away wrongfully and withheld for a considerable time, but the fact of the entry of such a judgment would affect a surety’s chances of recovery against the principals.

There is not sufficient proof of damage to go to the jury with respect to the property damage, but this does not apply to the non-payment of instalments of rent or taxes; these amounts are liquidated. The trial judge was right in affirming defendants’ point for binding instructions. No adequate reason has been assigned for granting a new trial.

And now, to wit, July 31, 1928, the rule for a new trial is discharged.


text:
    Singer Sewing Machine Company v. Baird et al.

      A. B. Eaton, for plaintiff; H. C. Connor, for defendants.
    July 9, 1928.
   Martin, P. J.,

Judgment was entered on a note signed by defendants containing a confession of judgment. Damages were assessed, execution issued, the real estate levied upon was sold by the sheriff, and, by assignment of the title, plaintiff became the owner of the property.

On presentation of a petition, a citation was issued against defendants to show cause why a writ of possession should not issue. Answers were filed. The defendant, Samuel L. Baird, Sr., averred that the premises were sold by the sheriff as his property, but that he had no interest in the property and was not in possession and that it was owned by the other defendant.

The answer of Samuel L. Baird, Jr., admits that he was the owner of the premises, but alleges that the premises were not sold as his property, but as the property of the other defendant, Samuel L. Baird, Sr., who had no interest in the property.

An examination of the record proves the averments of these answers to be untrue. Judgment was entered against both defendants, damages were duly assessed against them, the writ of venditioni exponas upon which the property was sold issued against both defendants, and the sheriff’s return shows that he sold the property in obedience to the writ.

Defendants have presented no ground for refusing a writ of possession.

And now, to wit, July 9, 1928, it is ordered that a writ of possession issue, and that the Sheriff of Philadelphia County deliver possession of the premises situate on the south side of Dickinson Street, at the distance of forty-seven feet four inches east of Beeehwood Street, in the 36th Ward of the City of Philadelphia, containing in front on Dickinson Street fifteen feet and in depth southward fifty-three feet to a three feet wide alley, to plaintiff.


author: Gest, J.,

text:
    Vogt’s Estate.

      Henry Arronson, for exceptant; Theodore S. Paul, contra.
    Nov. 2, 1928.
   Gest, J.,

The ordinary rule governing the allowance of interest upon pecuniary legacies is that the interest runs only from the time that the legacies are due and demandable, and as it is obviously necessary that a reasonable time should be allowed an executor for the settlement of the estate, this time was fixed in the earlier statutes as one year from the testator’s death, section 7 of the Act of March 21, 1772, 1 Sm. Laws, 385, re-enacted substantially in section 51 of the Act of Feb. 24, 1834, P. L. 83. The effect of this legislation was to supply a testamentary intent where none is expressed in the will, Huston’s Appeal, 9 Watts, 472; Phillips’s Estate, 133 Pa. 426; Koon’s Appeal, 113 Pa. 621. A further testamentary intent was supplied by the decisions allowing interest from the testator’s death when the legacy was given by a parent to a child or to a minor, where the testator stood in loco parentis, by way of maintenance, or to a widow in lieu of dower, where no other means of support was provided, etc.

Section 21 of the Fiduciaries Act of 1917, P. L. 447, shortened the time to six months and provided in general terms: “That where a pecuniary legacy is bequeathed to or for the use of the widow of the testator or any child or descendant of the testator, or any person toward whom the testator in his lifetime stood in loco parentis, or for the maintenance of any person, interest shall, unless a contrary intention appear by the will, begin to run from the date of the death of the testator;” so that widows are entitled whether or not other support is provided, and not merely children, but all descendants are entitled, irrespective of any provision for maintenance. The clear and positive provisions of section 21 of the Fiduciaries Act eliminate many questions which formerly arose, as in cases where legacies were bequeathed to grandchildren or remoter issue, or to children who had reached majority (as in the present case), or where no necessity for maintenance appeared, or where the testator made other provision for maintenance, or the like; see Williams on Executors (11th ed.), 1159. In short, this section of the Fiduciaries Act supplies a general testamentary intention which can only be overcome by the words of the will- itself.

In the present case, the legacies are given out of the two-thirds of the residue remaining after the gift to the widow of one-third thereof, but “only in the event that all monies due and owing to me shall have been fully collected by my executrix.” This legacy, it is true, is conditional-, and in the case of an ordinary legacy interest would begin to run only when the executrix had fully collected all the monies due. But as the legacies are given to children, and the will is silent concerning interest, it cannot be said that the “contrary intention appears by the will.” Gunning’s Estate, No. 3, 234 Pa. 148, pressed on us at the argument, is readily distinguishable. In that case the legacies were to be paid when the testator’s real estate was sold, and the Supreme Court allowed interest only from that time, but in Gunning’s Estate the legacies were not bequeathed to children (for we ascertain from the record that the testatrix died without issue), and, besides, the case arose before the Fiduciaries Act. It does not, therefore, rule the present case.

The mere fact that the legacies are given conditionally is not, in our opinion, sufficient in itself to take the case out of the proviso in the statute. Interest on a legacy is allowed for either of two reasons; first, by way of compensation or damages for the non-payment of the legacy after it is due, when the legatee becomes, as it were, a creditor of the estate, Langendorfer’s Estate, 8 Dist. R. 273; or, secondly, where the interest results from the relationship of the testator and the legatee in accordance with his presumed intent, and this presumption is expressed in the general language of the statute. But whatever doubt might arise from the conditional character of the legacies in the present case, as indicative of the “contrary intention appearing by the will,” is removed by consideration of its further provisions, for the debts due to the testator by his sons were payable with interest, as the testator must have known, and the interest was paid on them at the rate of 6 per cent. If the legatees are denied interest on their legacies, the interest paid on the notes must either be payable to the exceptant, as she claims, or we must hold that the testator died intestate with respect to it. The latter construction is impossible, as the testator plainly intended to dispose of his whole estate, while the former would be inconsistent with the provision made for the widow (the exceptant) in his will, for the testator, in disposing of the residuary estate, gives to the widow only the net income of two-thirds of the principal of the estate after the payment of the pecuniary legacies.

The Auditing Judge, in his adjudication, -well said: “The testator does not condition the gifts to the daughters on the time when, but on the fact that, all monies have been collected. Unless that event occurs, the daughters get nothing; but as clearly the testator directs payment to them of their legacies if the event does occur. The will does not disclose that the testator intended that the gifts were to be paid out of any particular monies collected, but out of two-thirds of the residue when all monies due had been gathered in.”

Notwithstanding the very thorough argument made in behalf of the exceptant, we are of opinion that the Auditing Judge was correct in his conclusions of law. The exceptions are dismissed and the adjudication is confirmed absolutely.


author: Sayers, P. J.

text:
    McClure v. Greene County.

      Lloyd E. Pollock, for plaintiff; A. A. Purman, for defendant.
   Sayers, P. J.

The case stated is very lengthy, and in order to get a brief and comprehensive view of the facts admitted and the inferences proper to be drawn therefrom it is deemed necessary to make the following general statement of the facts agreed upon.

The plaintiff, surviving executor of the will of his father, knew that his deceased father claimed title to a tract of coal in Dunkard Township, Greene County, Pa., including the forty-two acres of Pittsburgh Vein of coal described in the case stated, and that he had sold the same to one J. E. Barnes in 1900, and that Barnes and his grantees had paid the taxes on said coal, and that it had been assessed to them.

The plaintiff obtained a patent for the forty-two acres of land from the State in 1911, and evidently believed that he had by said patent acquired a paramount title to the forty-two acres of land and coal.

Relying on his belief, he claimed title to the coal lands, and in 1919 he directed the assessor of the township to assess the coal to him, and it was from that time until 1927 assessed to him as owner and he never objected to the assessment, levy or collection of the same, but voluntarily paid all taxes levied on said assessment, including county taxes for the years 1919 to 1926, inclusive. He paid the tax voluntarily, that is, without compulsion, actual, present or potential, and without duress or under threat of any legal process.

It is not admitted that he knew the tax was being paid on the same coal by Barnes and his grantees during the whole time. The plaintiff having discovered in 1927 that as a matter of law he took no title to the coal by virtue of his patent, notified the county commissioners to strike the forty-two acres of coal assessed to him from the assessment rolls and demanded repayment of the sum of $429.95, being the amount of county tax paid by him for the years 1919 to 1926, inclusive. The commissioners did not accede to either of his demands. He thereupon brought this suit, claiming $385.35, the amount of tax paid by him during the six years immediately preceding the date of his demand for repayment.

No fraud or deceit was practiced by any of the taxing authorities. The land was assessed on plaintiff’s demand and the tax voluntarily paid by him. The plaintiff was mistaken as to the legal effect of his grant from the State. Instead of becoming the owner of the coal land in fee, as he supposed, he took it as trustee for the rightful owners: Olewine v. Messmore, 128 Pa. 470.

There is a line of cases that support in part the principles on which plaintiff bases his claim, whereby an action for money had and received can be maintained to recover money voluntarily paid to one under a mistake of fact who, as a matter of equity and right, should not be allowed to retain the same. Durdon v. Gaskill, 2 Yeates, 268; Christman v. Siegfried, 5 W. & S. 400; Clapp v. Pinegrove Township, 138 Pa. 35; where recovery was permitted because plaintiff took no title to lands which he purchased at tax sale under a double assessment.

The plaintiff relies upon the authority of Bredin v. Cranberry Township Road Comm’rs, 87 Pa. 441, as one of the cases that supports his claim, but the suit there was to recover purchase money for lands sold at treasurer’s sales, where the purchaser took no title because part of the lands were out of the county and part were sold on a double or duplicate assessment and levy, the court holding that the rule of caveat emptor did not apply to treasurer’s sales and that the money was obtained by the township through assessments which its ofiicers had no right to make. The mistake in that case was brought about by the wrongful or fraudulent act of the township officer. The mistake in fact and in law in the instant case was that of the plaintiff, who demanded that he be assessed with the coal lands.

In the case of Clapp v. Pinegrove Township, 138 Pa. 35, it was held: “When the plaintiff paid his money to the county by way of redemption and settlement of accruing taxes, he discharged no obligation and he acquired no rights. He simply paid over so much more money under the influence of the unauthorized and illegal acts of the taxing officers. Although in their hands, it was still his. money. They had no claim upon it, and no right in law or morals to withhold it from him. The difficulty with the defense is that the plaintiff is not complaining of a mere irregularity or a neglect of some statutory requirement on the part of the ofiicers against which voluntary payment might relieve, but he complains that the taxes on this tract were paid in full by the owners and that thereby the demands of the public and the power of the taxing officers were alike exhausted. This being true, the double assessment and the taxes charged under it were illegal and void. They impose no liability on the land or its owner and confer no rights on the county or the township. They had no right to take, and they have no right to hold, the money so paid.”

That case differs from the instant case in this, that the tax paid by plaintiff was not paid “under the influence of the unauthorized and illegal acts of the taxing ofiicers,” who, though they might have been blamed for acceding to plaintiff’s demands that he be assessed, were guilty at most of a mere irregularity, due to plaintiff’s insistent demands that he be assessed and against which the plaintiff by his voluntary payment has forfeited his right to relief.

We are of the opinion that the plaintiff is not entitled to recover his voluntary payments which were due to his mistake both in fact and in law. In discussing this principle generally, the court, in Johnson v. Hernig, 53 Pa. Superior Ct. 179, 183, says: “There is the additional well-settled principle which is applicable to the case under the plaintiff’s own'testimony, namely, that one who voluntarily pays money with full knowledge, or means of knowledge, of all the facts, without any fraud having been practiced upon him, cannot recover it back by reason of the payment having been made in ignorance of law: Bobst v. Gring, 32 Pa. Superior Ct. 541; Bomgardner v. Blatt, 35 Pa. Superior Ct. 361. Many of the cases bearing upon the question are reviewed by Judge Henderson in the last-cited case. It is pertinent to refer particularly to this language of Justice Thompson in Natcher v. Natcher, 47 Pa. 496: ‘A moment’s reflection will induce the inquiry, how can money voluntarily paid be recovered back? Upon what can the implied promise to pay back be rested, against a free and voluntary parting with the money, without any reservation that it is ever to be returned? The latter excludes the former. That act overthrows all presumptions inconsistent with it, and, hence, the rule that money voluntarily paid, that is, paid without fraud or constraint, can never be recovered back.’ ”

It can hardly be contended here, as in the last-cited case, that payment was not that of a debt justly due the defendant. The plaintiff insisted that he be assessed and volunteered to pay what he owed the county. He was not deceived, defrauded or coerced into paying over his money. It is manifest that his conduct was not controlled by anything the county assessors or other officers said or did.

“The general rule is well settled that one who voluntarily pays money with full knowledge or means of knowledge of all the facts, without any fraud having been practiced upon him, cannot recover it back by reason of the payment having been made in ignorance of law: Natcher v. Natcher, 47 Pa. 496; Real Estate Savings Institution v. Linder, 74 Pa. 371; Finnel v. Brew, 81 Pa. 362; Gould v. McFall, 118 Pa. 455; Schoenfeld v. City of Bradford, 16 Pa. Superior Ct. 165:” Bobst v. Gring, 32 Pa. Superior Ct. 541, 543.

“To entitle a recovery back in such a case there must be compulsion, actual, present and potential, in inducing the payment by force of process available for instant seizure of person or property, when the party so paying it must give notice of the illegality of the demand and of his involuntary payment. The element of coercion being essential, a mere protest or notice will not change the character of the payment or confer of itself a right to recovery: Harvey v. Girard National Bank, supra. The threat of legal process is not such duress, and it has been held that payment of taxes imposed under an act of assembly which was afterwards held to be unconstitutional, was not compulsory because made under a threat, express or implied: Taylor v. Board of Health, 31 Pa. 73:” Schoenfeld v. Bradford, 16 Pa. Superior Ct. 165, 169.

Taxes voluntarily paid cannot be recovered where the taxpayer claims their return because he was under no obligation to pay and the taxing authorities had no right to receive the payments; especially is this true where the assessment and payment were due to a mistake of the taxpayer as to the facts and the law, and not to any mistake, fraud or coercion of the tax officers: McCrickart v. City of Pittsburgh, 88 Pa. 133, 135; Union Ins. Co. v. Allegheny, 101 Pa. 250, 255; Shenango Furnace Co. v. Fairfield Township, 229 Pa. 357, 368, 369.

The court is of the opinion that the plaintiff is not entitled to recover in this case, and this opinion is based on the facts set forth in the case, briefly herein recapitulated, and on the law as recited in the foregoing cases. The case of Allentown Borough v. Saeger, 20 Pa. 421, is very much in point and distinguishes between payments made to an individual and to public officers and voluntary payment or payments made under protest. For this reason, we quote the brief opinion in that case in full:

“Part of the taxes charged against Saeger was legal and part illegal, and he paid the whole on demand and now seeks to recover back the part that was illegally assessed. It cannot be allowed. The case is very different from that of payment to an individual by mistake. It was submission to legitimate authority which was prima fame right in its exercise. The taxing officers performed their duty as well as they knew how, and the tax was submitted to by one who was interested in the purposes for which it was raised, though it might have been resisted in legal form. This was an assent to pay more in support of the government of the town than the town had a right to demand, and the law does not imply the duty of refunding. If it had been paid under protest, that is, with notice that he would claim it back, this would repel the implication of an assent and give rise to the right of reclamation.

“In another aspect, it is unlike to a payment to an individual. It is a contribution to a common fund, in the benefits of which he, as a citizen or property-holder, participates. It is intended for immediate expenditure for the common good, and it would be unjust to require its repayment after it has been thus, in whole or in part, properly expended, which would often be the case if suit could be brought for its recovery without notice having been given at the time of payment; and there would be no bar against its insidious spring but the statute of limitations. On these principles the defendant below is entitled to the judgment.”

Order and judgment.

The court being of the opinion that under the foregoing statement of facts the plaintiff is not entitled to recover, judgment is hereby directed to be entered in favor of the County of Greene, defendant, with costs of suit.

From S. M. 'Williamson, Waynesburg, Pa.


author: Strouss, P. J., and Lloyd, J.,

text:
    Com. ex rel. District Attorney v. Coal Twp. School Directors.

      C. C. Lark, for plaintiff; J. A. Welsh, for defendants.
    Aug. 20, 1928.
   Strouss, P. J., and Lloyd, J.,

This proceeding was initiated upon the petition of Edward Raker, district attorney of this county, representing, inter alia: That Edward Raker is the duly elected and acting District Attorney of the County of Northumberland; that the Township of Coal, in the County of Northumberland, is a township of the first class; that the School District of the Township of Coal is a district of the third class; that Abe L. Snyder is a qualified voter of the Township of Coal; that, by reason of the death of James P. McCormick, duly qualified and acting Treasurer of Coal Township, a vacancy existed in the said office ; that, on Feb. 27, 1928, the Board of Township Commissioners of the Township of Coal filled the vacancy then occurring by the death of the township treasurer by electing Abe L. Snyder, who duly qualified for the said office; that, by virtue of his office as such treasurer, Abe L. Snyder is qualified by law to be the tax collector, inter alia, of the school taxes of Coal Township as levied and assessed against the taxables for the year 1928; that on or about April 1, 1928, he notified the school district of his appointment as such treasurer, filed with them his special bond, and then demanded the delivery of the duplicate and warrant for the collection of taxes for said year; that the defendants have refused, and still refuse, to deliver to him the said duplicate and warrant.

Agreeably to the prayer of this petition, a writ of alternative mandamus issued. To this writ the respondents filed a responsive return, admitting the election of Abe L. Snyder, the demand for the duplicate and warrant, and their refusal to deliver the same, but denied his right, to the said duplicate and warrant for the following reasons:

“(a) Because at the time of said election the said Abe L. Snyder was the duly elected and acting solicitor of the Board of Commissioners of Coal Township, and as such he was ineligible for election to the office of township treasurer.

“(b) That the meeting at which the alleged election took place was illegal, not having been held after due notice had been given the several commissioners of said township in the manner prescribed by law and the ordinances of Coal Township.

“(c) That in said election Abe L. Snyder did not receive the vote of a majority of the duly elected and qualified Commissioners of Coal Township.

“(d) Because the respondents had filled the vacancy existing in the office of Tax Collector for the School District of Coal Township prior to the alleged election of said Abe L. Snyder as township treasurer.”

To this return the petitioner filed a responsive reply, denying the allegations of the answer and that a vacancy existed, and challenging the power of the respondents to appoint a person to collect the school taxes.

All the questions raised by counsel for the respondents under reasons (a), (b) and (c), upon argument of this proceeding, were answered by us in an opinion this day filed in the case of Com. ex rel. District Attorney v. Snyder, to No. 481, September Term, 1928 [11 D. & C. 224], We there held that the said Abe L. Snyder was lawfully in possession of the said office with a right to hold the same. For the reasons therein given and the conclusion therein adopted, we again hold that the said Abe L. Snyder is in lawful possession of the office of township treasurer, and that the said reasons must be dismissed.

This brings us to a consideration of the final question in the case as to whether or not the death of the duly elected and qualified incumbent created a vacancy which the school district had a right to fill by appointment. In the 547th section of the School Code of May 18, 1911, P. L. 309, 342, it is provided as follows:

“Section 547. The board of school directors in each school district of the second, third or fourth class in this Commonwealth, where a tax collector is not elected to collect school taxes, or where there is a vacancy, or where any tax collector refuses to qualify or furnish a bond as herein provided, shall, annually, on or before the first day of June in each year, appoint one or more suitable persons as tax collectors in said school district: Provided, that the board of school directors in any school district appointing any tax collector or tax collectors may authorize and direct any one tax collector to collect the school taxes in any one or more wards or other proper divisions in such school district.”

In the instant case, the contention of the respondents that a vacancy existed can only be predicated upon the happening of the death of James P. McCormick. The appointment of Abe L. Snyder as township treasurer by the township commissioners, and the appointment of Annie McCormick as tax collector for the school district, occurred on Feb. 27, 1928, within four days of the death of James P. McCormick. The respondents contend that they made their appointment a couple of hours earlier than that made by the township commissioners, and, therefore, their appointee is entitled to receive the duplicate and warrant. This position is absurd if the 132nd section of the “General Township Code” is of any effect. The proposition needs no discussion. The appointment of Annie McCormick by the board of school directors on Feb. 27, 1928, was a mere nullity, for no vacancy existed which would give to the directors the right to appoint.

Upon the argument, the respondents contended that, inasmuch as the bond of Snyder was not approved and filed by the school board prior to June 1st, a vacancy existed within the meaning of the provisions of the 547th section of the “School Code.” This contention is, likewise, without merit, for in no event could this fact validate the illegal appointment of Annie McCormick made on Feb. 27, 1928. Under the 537th section of the “School Code,” it is provided that “taxes shall be levied and assessed by the school directors during the month of April or May each year for the ensuing year.” The 550th section provides, inter alia, that a bond shall be furnished to the directors in the amount to be fixed by the board of school directors, with such surety or sureties as it may approve, conditioned upon the faithful performance of the duties as collector of taxes. It is further provided in the same section that in case any person elected or appointed as tax collector shall fail to furnish a proper bond within fifteen days after his appointment, or notice so to do, then, in any such case, the board of school directors shall appoint another suitable person as collector of the school taxes in said district. It is thus apparent that no bond could be tendered to the school district by the incumbent until the amount thereof was fixed by the school directors. The respondents received notice of the appointment of the incumbent on or about April 1, 1928, but it nowhere appears when the amount of the duplicate was fixed by the directors, or that they ever notified the incumbent, Abe L. Snyder, of the amount fixed, or that he has ever received notice to furnish a proper bond. It does appear that his bond was filed on June 18, 1928, and that the respondents refused to accept or approve the same, for the reason that they held the appointment made by them was valid and that Annie McCormick was entitled to receive the .warrant and duplicate. This, as has been shown, was no reason for the refusal of the reception and approval of the bond by the respondents, and we conclude that Abe L. Snyder, Township Treasurer, is entitled to have his bond approved and filed by the school directors — the only objection to its approval and filing being the alleged prior appointment of Annie McCormick— and that he is entitled, upon such approval, to receive .the warrant and duplicate for the collection of school taxes for the Township of Coal for the year 1928.

And now, to wit, Aug. 20, 1928, the writ is sustained, and it is ordered, directed and decreed that the School Directors of the Township of Coal approve the bond of the said Abe L. Snyder, Township Treasurer, tendered to them as aforesaid, and that thereupon the said school board shall deliver to the said Abe L. Snyder, Treasurer of the Township of Coal, the duplicate of school taxes for said township for the year 1928, and draw and issue the necessary warrant for the collection thereof. The cost of this proceeding to be paid by the School Directors of Coal Township. An exception is noted and bill sealed for the defendants.

Prom C. M. Clement, Sunbury, Pa.


text:
    Com. ex rel. District Attorney v. Coal Twp. Poor Directors.

      C. C. Lark, for plaintiff.

      J. A. Welsh, Unger & Sons and John Kopyscianslci, for defendants.
    Aug. 20, 1928.
   Strouss, P. J., and Lloyd, J.,

This proceeding was initiated upon the petition of the Commonwealth of Pennsylvania ex rel. Edward Raker, district attorney of this county, representing, inter alia:

That the Township of Coal in this county is a township of the first class. That A. L. Snyder is a qualified voter of the said township. That, by reason of the death, on Feb. 24, 1928, of James P. McCormick, the duly elected, qualified and then-acting treasurer of said township, a vacancy occurred therein. That, on Feb. 27th following, the board of commissioners of said township filled the vacancy by electing said A. L. Snyder, who duly qualified and has since been performing the duties of said office. That, by virtue of his appointment, he is declared by law to be the tax collector of all State, county, township, school, poor and other taxes within the Township of Coal levied by authorities empowered to levy the same, and, as such, is charged with the duty of collecting said taxes. That, on about April 1st following, he notified the respondents of his said appointment, and, subsequently, in accordance with the amount fixed by the respondents, filed with them his special bond as treasurer and tax collector of said district, and requested the tax duplicate and warrant for the poor tax of said district for the year 1928. That the respondents refused, and still refuse, although demanded, to deliver the said duplicate and their warrant to him.

Agreeably to the prayer of the petition, a writ of alternative mandamus was granted. Thereupon the respondents, the Directors of the Poor of Coal Township, made return, admitting that Abe L. Snyder filed his bond in accordance with the law, his demand for the duplicate and warrant, and their refusal to deliver the same, but denying the right of the said A. L. Snyder to collect the said taxes for the following reasons:

1. Because said A. L. Snyder was not legally elected to fill the said vacancy, for the reason that he did not receive a majority vote of said board of commissioners.

2. Because said A. L. Snyder is not, by virtue of his office as township treasurer, entitled to collect the poor taxes as levied against the taxables of Coal Township.

3. Because, prior to the election of said A. L. Snyder by the township commissioners, the respondents had, by virtue of the authority vested in them under the law, filled the said vacancy by the election of Mrs. J. P. McCormick, who has duly qualified and upon whom the power and duty of collecting the taxes are now vested.

To this return, a responsive reply, also alleging the legality of the election of A. L. Snyder to said office and his right under the law to said duplicate and warrant and challenging the power of the respondents to elect a tax collector for said poor district, was filed.

Upon her petition, Annie McCormick, hereinbefore styled Mrs. J. P. McCormick, was permitted to intervene as a party respondent. She filed a separate answer, in which no additional questions are raised that cannot be properly disposed of under our disposition of those raised by the return of the original respondents. To this return the petitioner filed a responsive reply, substantially the same as filed to the original return.

All of the questions raised by the respondents upon the argument under the first reason were answered by us in an opinion this day filed in the case of Com. ex rel. Edward Raker, District Attorney, v. Abe L. Snyder, to No. 481, September Term, 1928 [11 D. & C. 224]. In that case we sustained the right of Abe L. Snyder to hold the office of township treasurer. For the reasons therein given and the conclusion therein adopted, the present reason cannot be sustained.

As to the complaint under the second reason. The Coal Township Poor District was erected by a Special Act, approved April 15, 1863, P. L. 492. Under this act, the directors of the poor were vested with the power of appointing the collector of poor taxes. They continued to exercise this power until the year 1909, when, upon a petition for mandamus in the case of Dane v. Coal Township Poor Directors, 19 Dist. R. 983, Judge Savidge, then judge of this county, decided that the Act of May 28, 1907, P. L. 273, repealed that portion of the Act of 1863 relating to the appointment of tax collector, and held that the township treasurer, and not the appointee of the board, was the only authorized person to collect the poor taxes of said district. The poor taxes continued to be so collected until the present election of the said Abe L. Snyder, who now claims the right to collect such taxes by virtue of the authority vested in him under section 274 of “The General Township Act,” approved July 14, 1917, P. L. 840, which enacts that: “The township treasurer, in townships of the first class, by virtue of his office as treasurer, shall be tax collector. He shall collect all State, county, township, school, poor and other taxes within such township of the first class levied by authorities empowered to levy taxes. He shall, in addition to the powers, duties and responsibilities enumerated in chapter 8, article I, have all the powers, perform all the duties, be subject to all the obligations and responsibilities and receive the same compensation for collecting such taxes other than township taxes as are now by law vested in, conferred upon, or imposed upon or received by, collectors of the several classes of taxes hereinbefore mentioned.” Appended to this section is the legislative declaration that: “It is the purpose and intent of this section that no taxes shall he collected in any township of the first class except by the treasurer of the township.”

The respondents, however, contend that the said section is not applicable to the Coal Township Poor District, and that the only pertinent legislation in relation thereto is to be found in the said Act of 1863. If this contention be correct, then the respondents’ second reason, embracing reason (e) under the third paragraph of the answer of Annie McCormick, must be sustained.

In support of this contention, it is urged that the Act of 1907, repealing the Act of 1863, was, in turn, repealed by “The General Township Act,” thereby restoring the legislation of said Act of 1863, and that “The General Township Act” did not repeal the Act of 1863. This, for the reason that sub-section (d) of section 2, under article I of the preliminary provisions of “The General Township Act,” excludes poor districts from its operation. For present purposes, it may be conceded that “The General Township Act” could not operate as a repealer of the Act of 1863. But there is no inhibition against the amendment or modification of parts of the act. That is as far as said section 274 goes, and that it goes that far cannot be seriously disputed if construed according to its plain language. And that it was the legislative intent that it should go that far is plainly evidenced by the fact that the legislature took the pains to append thereto the above stated emphatic legislative declaration, which for any other purpose would be wholly superfluous. Moreover, section 1501 of the act stipulates that all other acts and parts of acts inconsistent with this act are repealed. From this it is clear that the legislative purpose was to secure uniformity of procedure and displace local legislation. When such purpose clearly appears, local or special acts repugnant thereto must yield: Cornman v. Hagginbotham, 227 Pa. 549. Reading the legislative declaration into the general repealing clause of “The General Township Act,” and viewing the whole in the light of this rule, we cannot reach any other conclusion than that “The General Township Act” repeals that part of the Act of 1863 relating to the appointment of tax collectors for the Coal Township Poor District, and that section 274 of said act is here the controlling legislation.

The remaining question on this branch of the case is whether, under said section 274, the township treasurer, as such officer, is vested with authority to collect the poor taxes. We answer this question in the concise but comprehensive language of Judge Savidge, who, in passing upon a similar question under the Act of 1907, supra, of which said section 274 is a re-enactment, in the case of Dane v. Coal Township Poor Directors, supra, said: “This act is so all-comprehensive, and the legislature has given it such emphasis by setting forth its purpose and intent with such unusual clearness, that it would be a waste of good typewriter ribbon to urge reasons why the township treasurer, and he alone, no matter what the conditions may be, is entitled to collect poor or any other taxes in first class townships. ‘No taxes shall be collected . . . save only by the treasurer.’ . . . That is all there is to it. Nothing more can be said.”

As to the complaint under the third reason. Having previously decided that the board of township commissioners is the proper tribunal to elect a township treasurer, and that such officer is the only person vested with authority to collect the poor tax of Coal Township, it necessarily follows that the action of the directors of the poor in electing Annie McCormick to said office is ultra vires and a mere nullity.

Another contention, not specifically raised by the pleadings but advanced at the argument, was that Annie McCormick, as the administratrix of James P. McCormick, is by operation of law vested with authority to collect the poor tax in question. The contention is captious. It is predicated of the liability of the estate of James P. McCormick, deceased, and. his sureties upon his bond for the collection of said tax. It is true that the estate and sureties may be liable on a bond for acts done or omitted to be done by a person in his lifetime, but certainly not for the acts of others after his death. To hold otherwise would be to impose on the sureties an obligation neither intended nor assumed by them. The collection of the tax is a duty personal to the tax collector, terminates with his death and cannot descend to his legal representative. Enough has been said to demonstrate the fallacy of the contention.

Agreeably to the conclusions herein reached, we enter the following

Decree.

And now, Aug. 20, 1928, the writ is sustained, and it is ordered, directed and decreed that the respondents turn over to the plaintiff the poor tax duplicate for that portion of the district within the Township of Coal for the year 1928, together with a warrant for the collection of said tax, to the end that the plaintiff may proceed to collect the said taxes.

From C. M. Clement, Sunbury, Pa.


author: Hicks, J.,

text:
    Boraysu et ux. v. Tiley et al.

      F. R. Krebs, for plaintiffs; R. J. Graeff, contra.
    April 2, 1928.
   Hicks, J.,

Frank Boraysu and Sophia Boraysu, his wife, plaintiffs, on Dec. 1, 1927, entered into an agreement with the defendants to purchase the lot' of ground and buildings thereon erected, situate on the southeast corner of East Broad and Greenwood Streets, in the Borough of Tamauqua, this county, for the sum of $29,500, within sixty days from the date of the agreement upon the delivery of a deed conveying a good title. The time for the consummation of this sale to them by the defendants has been extended by the agreement of the parties until the judgment of the court could be obtained upon the question whether the defendants would have a fee simple title in the said real estate. The defendants, Clara Tiley and Christina Tiley, claimed title under and by virtue of the will of Rosina Tiley, a widow, who died on April 17, 1923, leaving a last will and testament dated Feb. 26, 1918, duly proved and registered at Pottsville, in this county, on Dec. 12, 1927. Upon the death of Rosina Tiley, she left to survive her a son, Harry L. Tiley, who has since died, his wife, Clara Tiley, and two children, one of whom has since died. She also left another son, William F. Tiley, who has a wife, Christina Tiley, and five children. The defendants are ready and willing to deliver their deed to the plaintiffs, but the latter refuse to accept the same, contending that all the members of the families of Clara Tiley and Christina Tiley must join in the conveyance. The foregoing, together with a copy of the will of Rosina Tiley and the agreement of sale between the plaintiffs and the defendants, has, with the consent of both parties, been incorporated into a case stated for the opinion of the court. The following question is submitted for the court’s decision: Whether the said Clara Tiley and Christina Tiley took an estate in trust or an estate in fee under the will of the said Rosina Tiley. If the court shall be of the opinion that the said Clara Tiley and Christina Tiley took an estate in trust under said will, then the court is respectfully requested to enter judgment in favor of the plaintiffs. If the court shall be of the opinion that the said Clara Tiley and Christina Tiley took an estate in fee under said will, then the court is respectfully requested to enter judgment in favor of the defendants.

The particular clause of the will for construction is the residuary clause, which provides: “and as to all the rest, residue and remainder of my estate, real, personal or mixed, of whatsoever nature or kind, or wheresoever situate at the time of my decease, I do hereby give, devise and bequeath unto Clara Tiley, wife of my son, Harry L. Tiley, and Christina Tiley, wife of my son, William F. Tiley, in equal portions, share and share alike, for the sole use of their families.” Clara Tiley and Christina Tiley, daughters-in-law of the testatrix, were appointed executrices without bond “for the faithful performance of my wishes.” In the second paragraph of the will the testatrix bequeaths one $100 Liberty Bond to each of her seven grandchildren “for their sole use and benefit.” In the third item of the will another grandson, Harold Tiley, on account of deformity, is bequeathed an additional sum of $300 in cash “for his absolute use.”

It is the/contention of the plaintiffs that the testatrix, in the residuary clause of the will, created a trust in all her real estate for the sole use of the sons of the testatrix and their families; or, in other words, as the plaintiffs argue, the testatrix intended her sons and grandchildren to have the use of her residuary estate. On the other hand, the defendants urge that the two daughters-in-law, Clara Tiley and Christina Tiley, received a fee simple title, and that the words “for the use of their families” in the residuary clause are words merely expressive of desire, recommendation and confidence and cannot convert the devise into a trust.

This leads to an interpretation of the residuary clause, which is: “As to all the rest, residue and remainder of my estate, ... I do hereby give, devise and bequeath unto Clara Tiley, wife of my son, Harry L. Tiley, and Christina Tiley, wife of my son, William F. Tiley, in equal portions, share and share alike, for the sole use of their families.”

To gain the intent of the testatrix, the will must be construed from its four corners. At the time of the writing of the will, the testatrix had two sons, with their respective wives and seven grandchildren, living. She made specific bequests to the grandchildren and omitted to make either of her two sons beneficiaries of her bounty. That she had a high regard for her two daughters-in-law, implicit faith and confidence in them, is readily seen from the fact that she appointed them, rather than her two sons, as the executrices of her will, making special mention, from this aspect, that they were to serve without giving a bond “for the faithful performance of my wishes.” Also, in the fourth item of the will, she expresses her wish and desire “that the license be removed from the corner Broad and Greenwood Streets property” (which property appears to be the one now the subject of sale) “as soon as can be done after my decease, either at the end of tenant’s term of leasing following my decease, but reimbursing the tenant the proportionate cost of license from termination of lease to end of said year, or that the lease be not extended longer than the close of said license year, and that the property afterwards be used for other mercantile business suited to the location and business, and I trust that my beloved children will carry out this last request of their mother.” The particular wish and desire, thus expressed, would be carried out under the terms of her will by her two daughters-in-law, executrices, if carried out at all. Her love for her daughters-in-law is further evidenced by the fact that the residue of her estate is given to them rather than to the two sons.

If the residuary clause read “and as to all the rest, residue and remainder of my estate, real, personal or mixed, of whatever nature or kind, or wheresoever situate at the time of my decease, I do hereby give, devise and bequeath unto Clara Tiley, . . . and Christina Tiley, ... in equal portions, share and share alike,” there would be no dispute that Clara Tiley and Christina Tiley took a fee simple estate. Words of inheritance for this purpose would not be necessary, as the will having been written on Peb. 26, 1918, it would be subject in its construction to the operation of section 12 of the Wills Act of June 7, 1917, P. L. 403, 407, which re-enacts the Act of April 8, 1833, P. L. 249, and which provides: “All devises of real estate shall pass the whole estate of the testator in the premises devised, although there be no words of inheritance or of perpetuity, unless it appears by a devise over or by words of limitation, or otherwise, in the will, that the testator intended to devise a less estate.”

By the addition of the words “for the sole use of their families,” after an absolute devise in equal moiety to Clara Tiley and Christina Tiley, is the absolute devise changed into a trust and do Clara Tiley and Christina Tiley hold the residuum in trust for their families? Does the clause in the will as to the residuary estate, in speaking of which the testatrix declares, “I do hereby give, devise and bequeath unto Clara Tiley . . . and Christina Tiley ... in equal portions, share and share alike, for the sole use of their families,” create a trust, remembering that there is no devise over or words of limitation?

If the words “for the sole use of their families” indicate simply the object and purpose and hope of the testatrix, then the estate given to Clara Tiley and Christina Tiley is absolute and not a trust. The testatrix had a fee in all the real estate, and it was this fee which she would be considered as disposing of in the residuary clause. The gift of the real estate is to her two daughters-in-law, and prima facie, then, the fee is given to them in equal parts, share and share alike. Does the testatrix’s expression of the inducement to make the devise, of the end which she believed and desired the devisees to be able to accomplish by it, reduce or qualify the estate? This end is “for the use of their families.” The purpose in almost every devise is that the real estate shall be used by the devisee for the benefit of himself or herself and those in close relationship. Will the expression of this purpose or expectation diminish or modify the estate which, but for it, would unquestionably have passed? We do not think so.

“When a life estate is given to a widow for the ‘support of herself and my daughter,’ it is not reduced nor affected with a trust for the daughter by this expression of the purpose: Dale v. Dale, 13 Pa. 446; Paisley’s Appeal, 70 Pa. 153; Mazurie’s Estate, 132 Pa. 157; Haskins v. Tate, 25 Pa. 249. ‘We think,’ says Sharswood, J., in 70 Pa. 153, ‘that the words which express the object for which the devise of the entire property was made to the wife for life meant to repose that discretion in her, did not vest any present interest in the children as cestuis que trust of any particular share or shares, and in that respect the principles of construction adopted in Pennock’s Estate, 8 Harris, 268, are applicable.’

“If the bestowal of a life estate upon a mother for the support of the children creates no trust affecting that life estate, it is impossible to see how the bestowal of what would, but for the expression of the purpose to'provide a support for children, be a fee, becomes a trust because of such expression. In one case the life estate is given to the mother for the support of herself and her children, but the children do not thus become equitable or legal co-owners; in the other case, the fee is given to the mother for the support of herself and her children; how do they become legal or equitable co-owners ? If it is possible to give an estate of a certain magnitude (e. g., a life estate) for such purpose without making the designed beneficiaries co-owners, is it not possible to give a still larger estate (e. g., a fee) for a similar purpose with a similar exclusion of co-ownership? The expression of a desire or expectation will not convert a devise into a trust unless it appears that the testator intended not to commit the estate to the discretion of the devisee: Good v. Fichthorn, 144 Pa. 287; Burt v. Herron’s Exec’rs, 66 Pa. 400; Hopkins v. Glunt, 111 Pa. 287; Bowlby v. Thunder, 105 Pa. 173:” Cressler’s Estate, 161 Pa. 427, 433.

The words “for the use of their families” are expressive of desire, recommendation and confidence and are not words of technical, but of common, parlance, and are not, prima facie, sufficient to convert a devise or bequest into a trust. The reason of the rule is that an absolute estate having been given, it may not be derogated from by mere precatory words. Although it is undoubtedly true that where a testatrix makes an absolute devise or bequest, mere precatory words of desire or recommendation annexed will not in general convert the devisee or legatee into a trustee if it appears affirmatively that the words of desire or recommendation were intended to be imperative, then the rule is otherwise, but nothing affirmatively appears in the will now being construed that shows that the words were intended to be imperative: Stinson’s Estate, 232 Pa. 218. The intention of the testator to create a trust must be apparent apart from the mere existence of words of trust or confidence, or none will be held to exist: Boyle v. Boyle, 152 Pa. 108, 113.

In Beck’s Appeal, 46 Pa. 527, 532, the court holds: “So when the words are too indefinite to create a trust, the absolute property is vested in the legatee. So in cases where words are added expressing a purpose for which the gift is made, and where the purpose of the gift is the benefit solely of the donee himself, he can claim the gift without applying it to the purpose, and that it is conceived whether the purpose be in terms obligatory or not. Thus, if a sum of money be bequeathed to purchase for any person a ring, or an annuity, or a house, or to set him up in business, or for his maintenance and education, or to bind him as apprentice, or towards the printing of a book, the profits of which are to be for his benefit, the legatee may claim the money without applying it, or binding himself to apply it, to the specified purpose, and this even in spite of an express declaration by the testator that he shall not be permitted to receive the money.” In Paisley’s Appeal, 70 Pa. 153, the testator gave to his wife the rents and profits of all his property during her life for her support and the support and education of his children under the direction of his executors, and the court declared that this would not create a trust for the children, either in the widow or the executors, nor give the Orphans’ Court jurisdiction to call them to account or to decree in favor of the children for the future administration of the estate.

Because of the implicit faith and confidence which the four corners of the will indicate that the testatrix had in her two daughters-in-law, the defendants, and because of her apparent love for them, we cannot construe the words “for the use of their families” as imperative, but rather as expressing a desire, hope or recommendation and that it was her intention to divide the residuary estate amongst her two daughters-in-law equally and absolutely. Throughout the entire will the testatrix seems to rely upon the kindness or justice or discretion of her residuary devisees and executrices and to them she committed her residuary estate, expecting them to use their respective interests in behalf of their families: Pennock’s Estate, 20 Pa. 268.

' We, therefore, come to the conclusion that Clara Tiley and Christina Tiley take a fee simple title in the real estate included within the residuary clause of the will and that no trust was created in favor of their families. To hold otherwise would be to create a trust out of vague and indefinite words; the testatrix would die intestate in remainder, and the trust would be entirely without any description as to limitation of time, subjects of the trust and be wholly antagonistic to the apparent intention of the testatrix. Clara Tiley and Christina Tiley have an estate which they can convey.

In accordance with the terms of the case stated, judgment is entered in favor of Clara Tiley and Christina Tiley, defendants, and against Frank Boraysu and Sophia Boraysu, his wife, plaintiffs.

Prom M. M. Burke, Shenandoah, Pa.


author: Sherwood, J.,

text:
    Kunkle’s Petition.

      Robert S. Spangler, for motion; James G. Glessner, contra.
    March 5, 1928.
   Sherwood, J.,

This is an appeal by the Borough of Goldsboro from the report of the viewers appointed by this court to assess damages to the property of David L. Kunkle, caused by the reconstruction and relocation of York Street, in said borough, said street being also known as State Highway Route 449.

On Nov. 14,1927, David L. Kunkle moved the court to strike off said appeal for the reasons filed of record in said case. An answer was filed by the borough on Nov. 28, 1927. No replication was filed to said answer by David L. Kunkle.

The first reason assigned in support of said motion to strike off said appeal is that it fails to show any authority from the Council of the Borough of Goldsboro authorizing the same to be taken. The borough’s answer avers that said appeal was taken after passage of a resolution by its town council authorizing the same. As no testimony was taken in support of this reason, and no replication was filed to the answer to the motion to strike off the appeal, the answer must be taken as true: Good v. Grit Publishing Co., 214 Pa. 614.

The second objection is that the appeal is not specific and too uncertain and indefinite; the third objection is that the appeal in no way claims that the Borough of Goldsboro is aggrieved in the action of the viewers on the assessments made by them of the damages awarded David L. Kunkle. An inspection of the appeal convinces us that it is definite and specific, in that it avers that in the construction of said street no portion of the property or land of David L. Kunkle has been condemned, taken or appropriated, as set forth in the report of the viewers, and that the said David L. Kunkle has not been cut off from ingress and regress to any portion of his property. This, in our judgment, negatives the allegation that the appeal is not specific. The appeal further avers that the damages awarded to David L. Kunkle are unconscionable and excessive. It would seem that this would follow if no land belonging to him was appropriated or taken by the borough and his right of ingress and regress not interfered with in the reconstruction of said street.

The fourth objection is that the award of the viewers is fair, reasonable and moderate. This is purely a question of fact which we cannot hear or determine on this motion.

The fifth objection is the reasons alleged in the appeal as the grounds for taking thereof are insufficient in law to authorize said appeal. The law provides that appellant shall state in his appeal the grounds upon or for which the appeal is taken, etc. It seems manifest that the legislative intention in thus requiring the person taking an appeal and demanding a jury trial to state the grounds upon which or for which the appeal is taken was to prevent frivolous appeals and make a record from which the court could determine whether the party was really entitled to a jury trial: Shawkey v. Pittsburgh, 79 Pa. Superior Ct. 31.

In this appeal the borough has set forth its grounds of appeal which raise distinctive issues of fact: First, whether, in the reconstruction of said street, any property or land of David L. Kunkle has been condemned, taken or appropriated; secondly, whether he has been cut off from ingress or regress to his property by reason of the reconstruction of said street; and, thirdly, that the damages awarded to him are unconscionable and excessive. It follows that under such allegations the appeal is not frivolous and does raise issues of fact which should be determined by a jury.

Therefore, we find no sufficient reason in any of these objections filed to justify us in striking off this appeal.

The right of appeal is favored by the law and should be recognized by the courts and sustained whenever the appellant has substantially complied with the material requirements of the law: Hanover Borough v. Frey, 30 York Leg. Record, 179.

And now, to wit, March 5, 1928, the motion to strike off the appeal is refused and overruled. Prom Richard E. Cochran, York, Pa.


author: Thompson, J.,

text:
    Mershon’s Estate.

      Owen J. Roberts and John W. Graham, Jr., for exceptions.

      Carr & Krauss, contra.
    Nov. 9, 1928.
   Thompson, J.,

Testator died June 2, 1927, and at the audit of his executors’ account a question arose between the executors of the testator and John Y. Mershon, individually and as sole distributee on the one side, and Mrs. Lemle on the other, as to the proper construction of certain parts of the following’ agreement:

MEMORANDUM OP AGREEMENT made and entered into this 25th day of May, A. D. 1925, by and between Abner H. Mershon, of the City of Philadelphia, party of the first part, and Mrs. Dorothy Lemle, of the City of Philadelphia, party of the second part.
Whereas, the party of the first part is the owner and operator of the Touraine Apartments situated at 1520 Spruce Street, in the City of Philadelphia; and
Whereas, party of the second part desires to act as manager of said Touraine Apartments upon the terms and conditions hereinafter specified, now, therefore, in consideration of the premises and of the mutual covenants herein contained and of the payment by each of the parties to the other of the sum of One Dollar ($1.00), receipt of which is hereby acknowledged, this agreement witnesseth:
1. Party of the first part agrees to employ party of the second part and party of the second part agrees to act for party of the-first part as manager of the aforementioned Touraine Apartments, performing all the duties ordinarily attendant upon the management of such an apartment house.
2. In consideration of the services to be rendered by the party of the second part hereunder, the party of the first part agrees to pay to party of the second part during the term of such services the sum of Twenty-six Hundred Dollars ($2600.00) per year, payable in cash weekly or monthly installments according to the wishes of the party of the second part; also, in further consideration of said services, party of the first part agrees that party of the second part shall have the sole occupancy and use of Apartment No. 202 for living quarters, without the payment of rent by party of the second part, and with heat, light, hot water and telephone services provided by party of the first part; in further consideration of said services, the party of the firs't part agrees to pay for the services of a housemaid to assist party of the second part, such house-maid to be chosen by party of the second part, the salary not to exceed Sixteen Dollars ($16.00) per week. The party of the first part further agrees that in the event of the removal of the party of the second part from her position as manager of said apartment house through causes beyond the control of either the party of the first part or the party of the second part, such as a change in ownership of the apartment house, or its destruction or demolition by reason of fire or other cause or causes, or the discharge of party of the second part by the heirs, executors, administrators or assigns of the party of the first part, the full consideration for one year provided for in this contract is to be paid to the party of the second part without the performance of any services by the party of the second part; this provision is not to be operative in the event of six month’s' written notice of an intention to terminate this contract having been given prior to the occurrence of the contingency herein provided for. The party of the first part further agrees that the signing of the pay-roll book by the party of the second part for any sum other than that due under the terms of this contract shall not be construed to represent the total amount due to the party of the second part; and In the event of any portion or portions of the hereinbefore mentioned salary being unpaid and owing to the party of the second part by the party of the first part, at any time during the period of or at the voluntary or involuntary termination of this agreement, the party of the second part shall be entitled to have such sums paid in full immediately upon request, with interest at the rate of six per cent (6%) per annum, or, in the event of the death of party of the second part before receiving such sums in full, the party of the first part agrees to pay forthwith such aggregate sums to Dorothy Lemle, daughter of the party of the second part. It is mutually agreed by the parties hereto that this contract shall not be terminated by either party without the giving of written notice of six (6) months prior to the time at which this contract is sought to be terminated.
All of the terms, conditions, covenants and obligations contained in' the foregoing agreement are intended to, and shall be binding on the part of both parties hereto, and also upon the heirs, executors, administrators and assigns of the party of the first part hereunder.
IN WITNESS WHEREOF, the party of the first part and the party of the second part have hereunto set their hands and seals the day and year first above written.
(Sgd) ABNER H. MERSHON [Seal]
Witness: (Sgd) DOROTHY LEMLE [Seal]
(Sgd) GEO. W. KELCHNER
(Sgd) DAVID JACKSON
And the notice given thereunder as follows:
ALDINE TRUST COMPANY,
2020 Chestnut Street, Philadelphia,
April 2nd, 1928.
Mrs. DOROTHY LEMLE,
1520 Spruce Street,
Philadelphia, Pa,
Dear Madam: In the memorandum of agreement made and entered into the 25th day of May, 1925, between yourself and Abner H. Mershon there is a provision requiring six months’ written notice by either party to terminate said agreement and in accordance with said provision we, as executors of the estate of Abner H. Mershon, deceased, as well as his personal representatives, do hereby give you notice that your employment under said agreement shall terminate on the fourth day of October A. D. 1928, and that you shall forthwith deliver unto John L. Graham, Jr., all papers, keys, etc., belonging to the estate of Abner H. Mershon, deceased, and in the meantime you shall be relieved of performing any further duties under your contract.
Very truly yours,
JOHN V. MERSHON
ALDINE TRUST COMPANY
■ By: Walter Harris, Vice-President,
Executor u/w Abner H. Mershon, dec’d.
JOHN V. MERSHON, Owner.

The Auditing Judge allowed the claim of Mrs. Lemle in the sum of $2600, being one year’s salary from April 2, 1928, together with the value of the apartment at $150 per month, less such time at that rate as she occupied' the same subsequent to April 2, 1928.

Exceptions to the allowance of Mrs. Lemle’s claim were filed by John V. Mershon,- “individually and as sole distributee of the estate of Abner H. Mershon.”

Testator by his will gave his entire estate to the accountants in trust to pay the income therefrom to his wife for life, and at her death the principal to his brother, John V. Mershon. The widow elected to take against the will, and by an instrument dated March 27, 1928, assigned all her interest in the testator’s estate to John V. Mershon.

John V. Mershon contended before the Auditing Judge and upon the argument on his exceptions: First, that the compensation for one year applied only during the first year of the employment; second, that the liability of the, estate is limited to compensation for six months only after the date of the above notice.

We are of the opinion that there is no merit in either contention, and that the Auditing Judge was correct in allowing the claim of Mrs. Lemle. We can find no basis for the contention that the part of the contract relating to one year’s compensation was intended to apply only during the first year of the employment. The contract between the parties was one of employment, indefinite as to duration, with provision for termination, first, by either party on six months’ notice; and, second, with the further provision for the payment of one year’s salary in the event of its termination for causes beyond the control of either party, such as “a change in ownership of the apartment-house, or its destruction or demolition by reason of fire or other cause or causes, or the discharge of party of the second part by the heirs, executors, administrators or assigns of the party of the first part; the full consideration for one year provided for in this contract is to be paid to the party of the second part without the performance of any services by the party of the second part; this provision is not to be operative in the event of six months’ written notice of an intention to terminate this contract having been given prior to the occurrence of the contingency herein provided for.”

It will thus be seen that the parties contemplated the possible death of the testator during the period of employment and the discharge of Mrs. Lemle by the executors, and expressly provided that if such discharge took place, Mrs. Lemle would be entitled to one year’s salary.

This brings us to a consideration of the notice above set forth. On its face it purports to be a termination of the contract by giving six months’ notice, but it also on its face purports to be a discharge, in that it directs Mrs. Lemle to “forthwith deliver unto John L. Graham, Jr., all papers, keys, etc., belonging to the estate of Abner H. Mershon, deceased, and in the meantime you shall be relieved of performing any further duties under your contract.” It will be noted that exceptant in his paper-book, page 13, calls the above notice “copy of notice of discharge.” The agreement expressly provides that one year’s salary shall be paid if Mrs. Lemle is discharged by the executors of Mr. Mershon, but [this provision] “is not to be operative in the event of six months’ written notice of an intention to terminate this contract having been given prior to the occurrence of the contingency herein provided for.” The Auditing Judge on this point says: “The removal of the claimant by the executors of the decedent, which was one of the contingencies contemplated, and the giving of notice were simultaneous. Where two events are simultaneous, it cannot be said that one happened prior to the other. The six months’ notice, therefore, was not given prior to the happening of the contingency, and, therefore, that part of the agreement remained operative which allowed the claimant a year’s full consideration, as provided in the agreement, from the date of the happening of the contingency, or cause of her removal.”

It cannot be pretended that any six months’ written notice was given to terminate the contract prior to her being removed as manager of the apartment-house. In fact, no notice whatever was given prior to her removal as manager of the apartment-house, although the contract specifically provided that six months’ written notice should have been given prior to the occurrence which would have prevented her receiving the full consideration provided for one year, as provided in the contract. The notice of her removal was contemporaneous with her removal, and certainly no six months’ notice was given her which would have rendered inoperative the provision which entitled her to a full year’s compensation. The “occurrence of the contingency” in the present case was her removal as manager of the apartment-house. No prior notice whatever was given her, and certainly no six months’ notice was given, as is necessary to render the provision for a year’s compensation inoperative.

We do not consider it necessary to discuss whether the death of Mr. Mershon, the election to take against his will by the widow, and the sale by the widow of her interest to Dr. Mershon, the remainderman, is such a change of ownership as was contemplated by the parties to the agreement when they referred to “a change in ownership of- the apartment-house,” as we prefer to place the reasons for our construction on the grounds above discussed.

The exceptions are dismissed and the adjudication confirmed absolutely.