author: Koch, P. J.,

text:
    Commonwealth v. Tucci.

      C. A. Snyder, District Attorney (H. 0. Bechtel with him), for Commonwealth.

      A. D. Knittle and C. M. Palmer, for defendant.
    July 22, 1929.
   Koch, P. J.,

— The reasons assigned in support of the motion are that the verdict is against the law and against the evidence, and that the court erred in its rulings on the admission of evidence and in its charge to the jury. We had been asked to direct a verdict, and our refusal to do that is also assigned as one of the reasons in support of the motion.

The Commonwealth offered an exemplified copy of the record of the County of Cecil, State of Maryland, showing an application for a marriage license to be issued to Nicola Tucci and Stella Tassone, and showing that they were married, certified to by the clerk of the court of said county on Feb. 14, 1929. This was offered to show the relationship of the defendant to the party with whom he is charged with having committed adultery. Inasmuch as the said Stella Tassone is the woman with whom the defendant is said to have committed adultery, we think the evidence was clearly competent. The father of the woman had previously testified that the defendant showed the marriage certificate at the hearing before the committing magistrate, and said: “Don’t scold; this is myl wife,” and “There, that is my wife.” These matters were introduced to prove illicit intercourse between the defendant and Stella Tassone. The testimony was offered in connection with an offer to prove the defendant’s prior marriage to another woman then living. The offer of this testimony was followed by other testimony tending to prove the prior marriage of the defendant.

The defendant’s counsel earnestly objected to the admission of such testimony because it tended to prove another crime, to wit, bigamy, and might, therefore, be prejudicial to the defendant.

“It is quite true that, as a general rule, a distinct crime unconnected with that laid in the indictment cannot be given in evidence against the prisoner. All our authorities are in accord with this proposition. ... If the offense disclosed by the testimony sought to be introduced is unconnected with that charged in the indictment being tried, that is to say, that the two have no common element, and the facts with respect to the one are not required to supplement or explain the facts appearing in the trial for the other or later offense, then it must be said that the two offenses are distinct and separate, and the evidence would be irrelevant and inadmissible. It often happens, however, that the two distinct offenses are so inseparably connected that the proof of one necessarily involves proving the other, and, in such case, [on] the prosecution for the one, evidence proving the other [the one] cannot be excluded because it also proves the other:” Com. v. Coles, 265 Pa. 362, 366. In the case just quoted, Mr. Justice Stewart quotes from Corpus Juris, col. 16,588, as follows : “The general rule cannot be applied where the facts which constitute distinct offenses are at the same time part of the transaction which is the subject of the indictment. Evidence is necessarily admissible as to acts which are so clear and inextricably mixed up with the history of the guilty act itself as to form part of one chain of relevant circumstances, and so could not be excluded on the presentation of the case before the jury without the evidence being rendered thereby unintelligible:” Com. v. Coles, 265 Pa. 366, 367.

If one were being tried on a charge of larceny, and the theft had been committed in an act of burglary, the testimony of such act could not be excluded just because it proved another crime. The fact would be at the same time part of the transaction which would be the subject of the indictment.

Illicit intercourse, as a rule, can be proved only by circumstances, and the alleged marriage of the parties and their cohabiting are powerful circumstances from which to infer illicit intercourse. The testimony of a number of witnesses clearly shows that the defendant and Stella Tassone were living together in the same house.

The Commonwealth undertook to prove that the defendant had previously been married in the Borough of Brognaturo, Italy, and for that purpose offered in evidence a certified copy taken from the Records of the Acts of Matrimony of the Borough of Brognaturo in the year 1919. It purported to be signed by the officer of the Civil State with the seal of the Borough of Brognaturo, vised to legalize the signature of Mr. Anghera, Chancellor, delegate of the Tribunal of Vito Valenta, with the seal of the Court of Appeal, and then vised for the legalization of the signature of the First President of the Court of Appeal by the Procurator General and certified to by the American Consul. The offer was objected to on the ground that the copy was not properly authenticated. The paper shows that a copy of the record was certified at the request of Tassone Gregorio. It says: “Copy of the original at the request of Tassone Gregorio.”

We admitted the certificate under the defendant’s objection.

The Rev. G. Stephano, an Italian priest located in the City of Pottsville, made a translation of the certified copy. His translation was marked as an exhibit, and the defendant’s counsel admitted that the translation is correct. But the defendant objected to the exhibit as mere hearsay and subject to cross-examination, and we sustained the objection. Neither the original certificate nor its translation appear on the transcript of the testimony, nor among the record papers of the case.

The defendant is a cousin to the prosecutor’s wife. He boarded with the prosecutor’s family for two years and four months.

The Commonwealth called Mrs. Cathereine Fotti as a witness. She resides in Pottsville, Pa., but is a native of Italy. She lived in Spatula, an adjoining town to Brognaturo, where she says she knew Tucci’s wife, whom she last saw in Brognaturo on May 8, 1921. She saw the wife twice there with the defendant, who was then her husband. She testified: “I know that she was married with him. ... I wasn’t at the wedding.” Her only knowledge of the fact of their marriage is, “that they all says that she was married.” “In Old Country they says that she was his wife.” On one occasion, when she saw the defendant and his wife together in the Old Country, his wife said she was going for milk for the baby.

In Chambers v. Dickson, 2 S. & R. 475, which was an action of dower, Chief Justice Tilghman held that cohabitation and reputation are good evidence to be left to a jury to prove marriage. He said: “It is not pretended, however, that proof of actual marriage has been held necessary by any decision in this state; we feel ourselves at liberty, therefore, to consider the point on principles of general convenience and expediency. There is no reason, in the nature of the thing, why a woman should not receive dower on such proof of her marriage as should be satisfactory to the jury.” In reference to the case just cited, Mr. Justice Gibson cited it in Forney v. Hallacher, 8 S. & R. 162, saying: “In Chambers v. Dickson, 2 S. & R. 475, it is well remarked by the Chief Justice, that in establishing rules of evidence, arguments from inconvenience have great weight; and that we must pay great attention to the situation in our own country, which is not in all instances adapted to regulations that are very proper in other countries. To say that an action for criminal conversation could not be sustained without proving the marriage by a witness who was present at the ceremony would be to grant an almost unlimited license to inflict! this species of injury with impunity.”

In an action to recover damages for the alienation of a wife’s affections, an actual marriage was not proved. The court below was affirmed for saying: “These people were recognized in the community as being married; they lived together for years and had children, and that, perhaps, will be entirely sufficient to satisfy the jury of the marriage. If it required actual proof of marriage between a man and a woman, it would be a very difficult thing for most of us, particularly very old people, and more particularly people coming from another country, where they were married, to produce evidence that would clearly and unquestionably establish the fact. Therefore, cohabitation, reputation and general surroundings that indicate the reasonable probability of the conclusion that the parties were married are recognized as being sufficient evidence to establish that fact:” Durning v. Hastings, 183 Pa. 210.

In the case before us Mrs. Potti testified that everybody at the place of their domicile said the defendant and a certain woman were married. This proved a general reputation and is competent evidence: Brinckle v. Brinckle, 12 Phila. 232. The reputation existed at the place of the domicile of the defendant and his reputed wife. The evidence was, therefore, competent: Yardley’s Estate, 75 Pa. 207; Omohundro’s Estate, 66 Pa. 113.

The defendant took the stand in his own defense, but was only asked what was his name, to which he answered, “Nicola Tucci.” He did not deny what Mrs. Potti testified to, and his silence respecting her testimony would seem to be confirmation of it.

We are, therefore, of the opinion that, independent of the certificate of the Marriage Acts of Brognaturo, the evidence was sufficient to send the case to the jury. So we deem unnecessary further discussion of the reasons assigned in support of the motion for a new trial.

The motion in arrest of judgment for a new trial is overruled, and Monday, Sept. 9, 1929, at 10 o’clock A. M., is fixed as the time for the defendant to appear and receive his sentence.

From M. M. Burke, Shenandoah, Pa.


source: Caselaw Access Project

author: Holland, P. J.,

license: Public Domain

text:
    Golze’s Estate.

      Larzelere & Wright, for appellant; E. F. Slough, contra.
    July 9, 1929.
   Holland, P. J.,

— On Jan. 13, 1927, a will of testatrix, under date of Oct. 29, 1926, was admitted to probate by the register of wills and letters testamentary granted thereon to E. S. Lower, the executor named therein.

Among the effects of decedent was found a testamentary paper, under date of Peb. 18,1926, wherein Wallace G. Root and Viola M. Lower were named as residuary beneficiaries. The latter two appealed from the probate of the will of Oct. 29,1926, having perfected their appeal Oct. 31, 1928.

June 18, 1928, said appellants filed their petition, praying that the appeal be sustained and the probate of the will of Oct. 29, 1926, be opened so that the will of Peb. 18,1926, may be considered for probate by the register. The citation awarded was duly served on all the beneficiaries under the terms of both of the wills and upon the next of kin. An answer was filed Nov. 23, 1928, by Orlow Root and Lydia M. Troup, the heirs of said decedent under the intestate laws.

A copy of each of said wills is attached to the petition.

The question is whether two separate and distinct testamentary writings can stand together and constitute a will. The will of Oct. 29', 1926 (hereinafter referred to as the later will), does not expressly revoke the will of Feb. 18, 1926 (hereinafter referred to as the former will), nor does it revoke generally all former wills. The later will does not dispose of the residue of the estate, so that, were it to stand alone, the decedent would die intestate as to the residue.

Two separate and distinct wills may be probated and the one of former date will stand, except in so far as it is revoked by the later will: Nelson’s Estate, 147 Pa. 160.

Two wills may be admitted to probate and both allowed to stand if the later one does not revoke the former and they are compatible, as where one disposes of one part of testator’s property and the second disposes of other property: Gensimore’s Estate, 246 Pa. 216.

The proponents of the later will cited Mifflin’s Estate, 49 Pa. Superior Ct. 605; Price v. Maxwell, 8 Pa. 23; Jones v. Murphy, 8 W. & S. 275; Teacle’s Estate, 153 Pa. 219; Hoffner’s Estate, 161 Pa. 331; Marshall v. Marshall, 11 Pa. 430.

The theory of the authorities so cited by both the appellants and the said proponents and that of the additional authorities which we have consulted is the same. They all proceed upon the assumption that two or even more wills of a testator may be probated and stand together and that the court may determine the testamentary intent from them all taken together.

The former will will fall in its entirety, however, if the later will expressly revokes it or if the later will expressly revokes all former wills by the testator theretofore made. Or if the later will so completely disposes of all of his property as to impliedly revoke the former will in its entirety, the former will falls and need not be probated at all. But if there is no complete revocation of the former will by the later one, either express or implied, then the later one revokes the former one only in so far as the former one is inconsistent with the later one.

In the case at bar, the testatrix in the former will made a complete disposition of all her property, expressly and clearly disposing of the residue thereof. In fact, it consists practically of a residuary clause and a clause appointing the executor. In the later will testatrix does not expressly revoke the former will, nor is there any express revocation of all former wills. She only provides certain specific bequests and names a different executor. In the later will she does not dispose of the residue of her estate.

To say that a testatrix intended to die intestate as to the residue of her estate is a contradiction of terms.

The later will, therefore, revokes the former one only in so far as the former will is inconsistent with the later; that is, the former will is revoked only so far as may be necessary to pay the specific bequests provided in the later will, after which the residue should pass as provided by the former will.

We are of the opinion that both wills should be admitted to probate and stand together as the last will and testament of the decedent. The will of Oct. 29, 1926, has already been probated and letters testamentary were properly granted to the executor named therein. The will of Feb. 18, 1926, should also be admitted to probate.

And now, July 9, 1929, the appeal is sustained and the probate opened so that the register of wills may consider the admission to probate of the will of the testator of Feb. 18, 1926.

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


author: Kun, J.,

text:
    Commonwealth v. Maxberry et al.

      Bryan A. Hermes, Assistant District Attorney, for Commonwealth.

      Henry Gouley, for defendants.
    March 15, 1930.
   Kun, J.,

— The defendant Marshall was convicted on a bill of indictment charging him and others (not tried) with conspiracy to receive stolen goods which were to be stolen by the others, and both defendants, Marshall and Maxberry, were convicted on another bill of indictment charging them with having conspired with others (not tried) to become accessories after the fact to the others.

The facts which gave rise to these rather extraordinary indictments were the following: On Nov. 15, 1929, the prosecutors, the Jacksons, were robbed of a quantity of jewelry at their home in Drexel Hill, Delaware County, presumably by their maid, Betty Morman, who left her place of employment that day while her mistress was out. Investigating the matter, the detectives, having been advised of an address in Philadelphia which the maid had furnished, found at that address the defendant Maxberry, a brother of the maid. When asked what he knew of the robbery, he freely told the detectives that on the night of Nov. 14, 1929, the night before the robbery supposedly took place, he had gone to his sister’s place on Federal Street to see her, and found her there with a man, Burnett, who asked him to get Marshall, the other defendant, because he had important business with him. When Marshall came in, Burnett asked him when he was going to be married, and whether he had his ring as yet, and, on replying in the negative, Burnett told Marshall he had a good bargain for him in the way of a ring. Marshall wanted to see it, and Maxberry’s sister, the maid, then spoke up and said she was going to get some jewelry, including the ring, by robbing her employers; that they needed $25 to get to New York- to sell the jewelry, and that they would sell the ring to Marshall for $25. Marshall said he would give $25 for the ring the next day, adding that he might not be able to get all of the $25, when Maxberry chimed in that he could let him have some of the money to enable him to get the ring.

So far as the evidence in this case discloses, the defendants had no communication or contact with the maid and Burnett after these conversations;’ which, indeed, were proven by alleged confessions of the defendants as above given, there being no other proof of them. The authorities, being unable to locate the robbers, arrested the two defendants and having no other basis for holding them, did so by procuring the indictments against them above referred to. They are unique and without precedent. The ingenious and resourceful counsel for the private prosecutors induced the district attorney’s office to draw up these indictments by the very persuasive argument, more apparent than real, that inasmuch as it is a crime to receive stolen goods there may be a conspiracy to commit such a crime; likewise, that as it is a crime to be an accessory after a fact, there may be a conspiracy to become one. It was on this theory that the court permitted the bills to go to the jury, but with a lingering doubt, which has been justified, because the conclusion has been reached that the indictments are not sustainable.

Assuming that the rather casual and meagre conversations between the defendants and the intending robbers could rise to the dignity of an agreement or union of wills to commit a crime, there is one decisive reason why, as between those charged in these cases with conspiracy, no conspiracy could be formed to commit the crimes mentioned. Undoubtedly, two or more persons may conspire to receive stolen goods from another, the thief; or perhaps two or more persons could conspire to become accessories after the fact, to another; but there can be no indictment for conspiracy when the concerted action of the defendants is part of the criminal act. Thus, a man and woman cannot conspire to commit adultery (Shannon and Nugent v. Com., 14 Pa. 226); likewise, a woman upon whom an abortion is to be performed cannot be charged with conspiracy with the doctor who is to perform the abortion, that is to say, persons cannot conspire between themselves to commit a crime in which they alone would participate and which was not directed toward any one else: Com. v. Bricker, 74 Pa. Superior Ct. 234. The unlawful thing to do which a conspiracy can be entered into must, in a sense, be something which would be capable of being done by one alone (that is, capable in law, not necessarily in fact), a conspiracy being merely the corrupt agreement between two or more persons to do that unlawful thing by concerted action; or it must be of a nature particularly adapted to injure the public or some individual by very reason of the combination. However, if the nature of the unlawful thing as to which the conspiracy is charged be such that it cannot be done excepting by the concurrent action of those charged and could not be committed unless they alone participated in it, there is in such a situation no basis for a charge of conspiracy, as the cited cases show.

Applying these principles to the cases before us, we have a conviction of Marshall on a bill charging him with conspiracy with the maid Morman and one Burnett, the intending robbers, to receive stolen goods, that is to say, goods which the latter were going to steal. Now, the crime of receiving stolen goods could not be committed by Marshall himself. It could be committed only by the concerted action of the thief delivering the goods to Marshall and his receipt of them, knowing them to be stolen. As above stated, Marshall could have conspired with another to receive stolen goods from the thief, but an intending receiver cannot be charged with conspiracy with an intending robber to receive stolen goods for the reasons stated.

There is another reason why this indictment cannot be sustained. A person can hardly be charged with conspiring to do something which he could not do. As is well known, larceny and receiving stolen goods are two separate and distinct offenses. A thief cannot be convicted of receiving goods which he stole.

What has been said in the main discussion applies likewise to the other bill of indictment, in which the two defendants, Marshall and Maxberry, are charged with having conspired with the said Morman and Burnett, her friend, to become accessories after the fact, based on the argument that, inasmuch as one of them said he would buy a ring for $25 and the other chimed in that if the former were short he would give him some of the money, and if that were done, it would furnish the robbers with money to get out of town, ergo there was a conspiracy as charged.

Assuming that theoretically two persons could conspire to become accessories after the fact to a third, the three could not be charged with such a conspiracy, because likewise the concerted action of the defendants would be indispensable to create the criminal act; that is to say, the crime of accessory after the fact by furnishing money could not be accomplished unless the third persons who had committed some crime took and received the money from the first two, and, as stated in the Bricker case, “they could not conspire between themselves to commit a crime in which they alone participated and which was not directed toward any one else.”

Precedents are evidences of the law, and the lack of them implies that the law has never before undertaken to redress such extraordinary alleged offenses as were charged in these two bills of indictment. Now that the attempt has been made, the lack of precedent has been accounted for by showing that the charges are not sustainable.

The motions for new trial are granted, and the District Attorney is given leave to submit the bills for verdicts of “not guilty.”


author: Alessandroni, J.,

text:
    Remsch v. Remsch.

      Hunsicker & Becktel, for libellant; James S. McKeon, for respondent.
    March 5, 1930.
   Alessandroni, J.,

— The libel charges cruel and barbarous treatment and indignities to the person. The master recommends a dismissal of the libel, alleging failure of the libellant to substantiate these charges. A number of exceptions have been filed, the more important of which allege that the master erred in failing to find the respondent guilty of cruel and barbarous treatment and indignities to the person. Exception is also taken to the master’s adoption as evidence of a report on the mental condition of the respondent, covering the period in which the respondent was alleged to have committed the acts of cruelty complained of. The libellant also complains that the master examined his daughter, a minor, privately, without affording him the benefit of hearing her testimony and the right to cross-examine her. The declarations of the child are considered as evidence by the master.

Upon careful review of the testimony and findings of the master, it is evident that she was affected by the unusual circumstances of this case. It appears that the libellant did considerably more than is ordinarily found in the good husband faced with the circumstances that confronted him in his married life. He worked regularly; he applied all of his earnings for the upkeep of his family; he underwent many trials; he gave an unusual exhibition of patience and forebearance for a man of his station. For many years he had to put up with a wife who was given to continuous drunkenness. His devotion to his children undoubtedly held him to her, as well as the hope that eventually she would emerge from that unfortunate state. Later, he became the object of her violent attacks. Enough has been shown by the libellant in this regard to substantiate the charge of cruel and barbarous treatment. The libellant may not be deprived of the value of this testimony by the conjecture that the respondent was incipiently insane when the several acts of cruelty occurred. Even when insanity follows, as it has in this case, the husband may be granted a divorce if it appears that the conduct complained of antedated the period of lunacy: McDermott v. McDermott, 47 Pa. C. C. Reps. 151. See, also, Matchin v. Matchin, 6 Pa. 332.

The master has not given the testimony touching indignities the weight that it deserved. Respondent’s continuous drunken debauch, with its accompanying evils of loss of temper, violence, use of vile language, calling of opprobrious names, keeping the other in a constant state of suspense, anxiety and mental suffering, would be sufficient of itself to make out this charge: Seidle v. Seidle, 10 D. & C. 518. A laudable humanitarian impulse induced the master to give weight to the findings in the medical report, as well as her examination of the child, but her findings thereon cannot legally be made part of the case: Weymers v. Weymers, 81 Pa. Superior Ct. 432. Nor can we now be concerned with the future status of the respondent in the event of her recovery. Provision will be made for the maintenance of the respondent during the period of her insanity compatible with the financial ability of the libellant. The misfortune of the respondent, great as it is, cannot work a denial of the libellant’s rights under the law.

The exceptions of the libellant are sustained and the report is referred back to the master for findings in accordance with this opinion.


author: Martin, P. J.,

text:
    Dollar Cleaners and Dyers, Inc., v. Orange Dollar Cleaning Company et al.

      Evans & Wemick, for exceptions; S. G. Schwartz, contra.
    Jan. 2, 1930.
   Martin, P. J.,

— Plaintiff filed a bill in equity praying for an injunction to restrain the defendant Emmett Lottig from using the name “Dollar Cleaners” in his business advertisements, and for an accounting and damages.'

An answer was filed and the case proceeded to trial on bill, answer and proofs.

A decree nisi was entered, by which

“1. The defendants, Emmett Lottig, the Orange Dollar Cleaning Company, and Bornot, Inc., their respective agents, servants and employees, are enjoined from using the name ‘Dollar Cleaners,’ and the use of the name ‘Dollar Cleaners’ in the form of advertisement, or in any other manner imitating in the mode of advertisement the name adopted and registered by plaintiff, in the City and County of Philadelphia and vicinity.

“2. The defendants, Emmett Lottig, the Orange Dollar Cleaning Company, and Bornot, Inc., and each of them, and their respective agents, servants and employees, are prohibited from using the name ‘Dollar Cleaners’ in their business or advertisements so as to confuse the public and lead them to believe they are patronizing the plaintiff.

“3. The defendants are directed to pay the costs of this suit.”

Exceptions were filed by plaintiff and by defendants. . . .

The second exception on the part of defendants is to the finding of the Chancellor that, “as a result of the use of the words ‘Dollar Cleaning’ by the defendant, confusion has arisen in the minds of customers of the plaintiff, and the public, in following advertisements of the defendant, has been misled into believing they were patronizing places of business of plaintiff when they were patronizing the defendant, which necessarily resulted in a loss of patronage to plaintiff.”

The defendant wrongfully used the name “Dollar Cleaning,” and it followed that customers of plaintiff were induced to believe they were patronizing and giving their trade to the plaintiff.

The third exception of defendant is that the Chancellor erred in concluding that “it is evident that the opening of the Orange Dollar Cleaning Company places of business in Philadelphia and vicinity was a ruse on the part of Bomot, Inc., to attract the business and customers of plaintiff.”

Defendant used the name for the purpose of attracting customers to its place of business and in obtaining their trade. The use of this name was unquestionably a ruse on defendant’s part to attract all the business and customers of plaintiff that it could divert to its own places of business.

The 4th, 5th, 6th, 7th, 8th and 9th exceptions on the part of defendant complain of the Chancellor’s conclusions of law.

These conclusions are fully sustained by the facts proved by the evidence.

The first to the seventeenth exceptions filed on the part of plaintiff are to the Chancellor’s failing to affirm the 19-th, 20th, 21st, 22nd, 23rd, 33rd, 35th, 36th, 38th, 39th, 42nd and 43rd requests for findings of fact filed by plaintiff.

All of these requests for findings of fact are based on the assumption that the Chancellor should award damages to plaintiff for the wrongful use by defendant of the name “Orange Dollar Cleaning Company” and the words “Dollar Cleaning.” There was no proof offered to warrant a finding of any specific amount of damages suffered by plaintiff. A witness was asked, “What does your business average?” and replied, “We are averaging approximately $200,000. It was cut down almost one-half.” But the evidence did not connect the business reduction in volume with the use of the words “Dollar Cleaning” by the defendant.

In support of its exceptions, counsel for plaintiff cited Tyler v. Philadelphia Ritz-Carlton Co., 75 Pa. Superior Ct. 353, and McLaughlin v. Singer Sewing Machine Co., 75 Pa. Superior Ct. 533, where punitive damages were allowed; but in both cases there was competent evidence on which to base the finding.

In Greeney v. Pennsylvania Water Co., 29 Pa. Superior Ct. 141, it was said by Judge Orlady: “The jury may consider all the facts which relate to the wrongful act of the defendant and its consequence to the plaintiff, but they are not at liberty to go farther than allow actual and compensatory damages,, unless the evidence shows wilful misconduct and a wanton invasion of the plaintiff’s rights or any circumstances of aggravation or outrage.”

The plaintiff in the present case failed to offer such proof as would warrant the Chancellor in assessing either actual damages or punitive damages.

The 18th, 19th, 20th, 21st,'22nd, 23rd, 24th and 25th exceptions of plaintiff complain .of the Chancellor’s conclusions of law.

The facts established by the evidence warrant those conclusions of law found by the Chancellor.

Counsel for plaintiff made a request, that should the court be of the opinion that under the pleadings and the testimony that was produced in this case there was not a sufficient basis laid for the ascertaining by the court of the proper measure of damages, it is respectfully submitted that the plaintiff should not be deprived of the damages that he is entitled to, and that the court should incorporate in its decree an order that the decree is entered without prejudice to the plaintiff’s rights to proceed for a recovery of its damages and for the penalty of $200 provided by the Act of June 20, 1901, P. L. 582.

There is nothing contained in the pleadings or the evidence to warrant the insertion of such an order in the decree entered in this case.

And now, Jan. 2, 1930, the exceptions filed on behalf of plaintiff and those of the defendants are dismissed, and the adjudication is confirmed. Counsel will prepare a decree.


author: Van Dusen, J.,

text:
    Whyte’s Estate.

      Francis H. Scheetz (of Evans, Bayard & Frick), for exceptant.

      William C. Ferguson, Jr. (of Slocum & Ferguson), contra.
    March 21, 1930.
   Van Dusen, J.,

— We agree with the conclusion of the Auditing Judge that the trust fund created by the decedent for his son was not an advancement. “ ‘All questions of advancement,’ ” it was said by Sergeant, J., in Daniel King’s Estate, 6 Whart. 370, “ ‘must depend on the intention of the parent in making the gift. If there be no evidence at all on the subject, then whether it was an advancement or a present may be judged of by its amount and character:’ ” Story’s Appeal, 83 Pa. 89, 98.

The terms of the trust and the circumstances under which it was made show that it was intended primarily for the maintenance and education of the child, and such a provision is not an advancement: Lentz v. Hertzog, 4 Whart. 520; Miller’s Appeal, 40 Pa. 57, 60. The son will get what remains of the principal if he lives to be twenty-one, but his interest is so indeterminate that it cannot be valued now, and it is unreasonable to wait five years for the contingency to happen.

The offer to show contemporaneous declarations by the decedent was properly rejected, because the witnesses were incompetent and the declarations would not tend to show that an advancement was intended.

The exceptions are dismissed and the adjudication is confirmed absolutely.


author: Biddle, P. J.,

text:
    Lehman v. Souders.

      J. M. Goodyear, for plaintiff; J. Freed Martin, for claimant.
    July 30, 1929. —
   Biddle, P. J.,

This is a case stated between Charles Lehman and Guy B. Elliott to determine the right to $35.06 in the hands of the sheriff, resulting from the sale of the tenant’s share of the wheat crop grown on a farm belonging to Margaret J. Moser. From the averments of the case stated, it appears that Charles Souders, the execution defendant, was a tenant on the farm of Margaret J. Moser in Monroe Township; that in the fall of 1927 he sowed the crop of wheat which was harvested in the summer of 1928 by the succeeding tenant; that on Feb. 2, 1928, Souders executed and delivered to Charles Lehman a note for $95, upon which judgment to the above number and term was entered May 12, 1928. On March 10, 1928, Charles Souders executed and delivered to Guy B. Elliott a bill of sale covering his interest in the wheat crop on the said farm. Charles Souders surrendered possession of the Moser farm on April 1, 1928. On June 9, 1928, after the issuance of the fi. fa., Guy B. Elliott filed with the sheriff of this county a property claim for Souders’s interest in the wheat crop which Elliott claimed by virtue of the above-mentioned bill of sale. So far as appears from the case stated, this was the first time that Elliott claimed or notified any one of his alleged ownership of Souders’s interest in the wheat crop. By agreement of the parties, the sheriff sold the interest of Souders in the. said crop of wheat, and, after payment of the writ costs and what was admittedly a prior claim of the landlord, there remained in the sheriff’s hands the sum of $35.06, which sum is claimed both by Lehman, the execution creditor, and by Elliott, the vendee of Souders.

While it is not alleged that there was any actual fraud in the sale by Souders to Elliott, yet the execution creditor, Lehman, claims that there was no transfer of possession from Souders to Elliott sufficient to defeat the claim of an execution creditor; and it is upon this basis that the execution creditor claims that the balance in the hands of the sheriff should be paid to him instead of to Elliott.

As we cannot find any facts except those agreed upon by the parties, we have before us nothing to sustain the claim of Elliott to the goods in question except the admitted facts that he received the bill of sale for this property from Souders and that he paid a valuable consideration for what was so sold to him. As between Souders and Elliott, there would be no question that Elliott would be entitled to this money, the proceeds of the property, in preference to Souders, but a different situation arises as against an execution creditor of Souders without notice of the prior sale; and, as there is no averment of any notice whatever to Lehman, we cannot find that he had either knowledge or notice of this prior claim of Elliott’s, nor can we find that Elliott ever had possession of Souders’s interest in the wheat crop or made any claim to it, as far as any other person was concerned, until June 9, 1928, some time after the present execution had issued and the levy had been made.

The rule is well settled in this State that delivery of possession is indispensable to transfer a title to personal property, by act of the owner, that shall be valid against creditors: Clow v. Woods, 5 S. & R. 275; Barlow v. Fox, 203 Pa. 114.

“But it often happens that the subject of the sale is not reasonably capable of an actual delivery, and then a constructive delivery will be sufficient. . . . In such cases it is only necessary that the vendee should assume the control of the subject so as reasonably to indicate to all concerned the fact of the change of ownership. Where nothing of the kind has taken place, it is the duty of the court to pronounce a mere symbolical delivery to be insufficient:” McKibbin v. Martin, 64 Pa. 352, 357; Hunter Construction Co. v. Lyons, 233 Pa. 561.

As we view it, the instant case is one of the latter sort. The property sold to Elliott was of the sort of which actual possession could not be taken at the time, but this fact did not relieve Elliott from the duty of giving notice of his ownership in the best manner possible, and it does not appear that he did anything whatever; and, under the authorities above quoted, it, therefore, becomes our duty to pronounce that the symbolical delivery to him by the delivery of the bill of sale was insufficient to defeat the claim of a bona fide execution creditor.

And now, July 30, 1929, in accordance with the stipulation of the case stated, it is directed that judgment shall be entered on the case stated in favor of Charles Lehman in the sum of $35.06; and it is further directed that the costs of this case stated shall be paid out of the fund awarded to the said Charles Lehman.

From Francis B. Sellers, Carlisle, Pa.


author: Koch, Dep. Att'y-Gen.,

text:
    Caddies Under Fourteen.
    Jan. 29, 1930.
   Koch, Dep. Att'y-Gen.,

— In your letter of Dec. 12th you have requested us to advise you whether minors under fourteen years of age may be employed as caddies by golf clubs in Pennsylvania.

Section 2 of the Child Labor Act of May 13, 1915, P. L. 286, provides as follows:

“No minor under fourteen years of age shall be employed or permitted to work in, about, or in connection with, any establishment or in any occupation.”

In the 1st section, the term “establishment” is defined to mean “any place within this Commonwealth where work is done for compensation of any kind, to whomever payable: Provided, That this act shall not apply to children employed on the farm or in domestic service in private homes.”

In an opinion rendered by this Department to your predecessor, we advised that no minor under fourteen years of age may be employed or engaged in any occupation within the Commonwealth of Pennsylvania, irrespective of the state of his residence: Child Labor Law, 9 D. & C. 779. The subject especially under consideration therein was the employment of children in theatrical work.

On Nov. 4, 1915, in an opinion rendered to the Commissioner of Labor and Industry, Attorney-General Francis Shunk Brown makes this comment on the act in question (Opinions 1915-1916, page 351):

“This Act of 1915 was passed in line with other advanced legislation seeking to safeguard and develop the youth of the State in their health, comfort and intelligence, and should not be so construed as to produce a result to the injury and disadvantage of many of those intended to be so benefited. Legislation of this kind cannot always be enforced strictly according to the letter thereof, but should be interpreted and applied with the fullest measure of sound discretion and judgment, always mindful of basic principles and of the useful ends desired to be accomplished.”

Whether the Legislature of 1915 considered children engaged as caddies during vacation time or after school hours, we can only surmise. The debates are silent in this regard. The act by its terms is broad enough to forbid minors under fourteen to be employed or engaged as caddies. It is well known that the Act of 1915 was passed in response to a widespread public demand for the protection of children from exploitation in industry. A careful reading of the Act of 1915 impels one to the conclusion that it was intended that children under fourteen years of age were to be protected absolutely from the effects of any kind of employment save only farm work and domestic work in private homes.

While we shall consider this matter in the light of the expression of former Attorney-General Brown, hereinabove quoted, we find ourselves confronted with certain decisions that require us to adhere to the general rule announced in 9 D. & C. 779.

At virtually every golf course the caddies are under the jurisdiction and direction of a so-called caddy master. It has been held by the highest court of appeals of Illinois and of California that a caddy is an employee of a golf club, irrespective of whether the club or the members pay him for his services: Indian Hill Club v. Industrial Commission, 140 N. E. Repr. 871, 309 Ill. 271; Claremont Country Club v. Industrial Accident Commission of the State of California, 163 Pac. Repr. 209, 174 Cal. 395, L. R. A. 1918 F, 177. These were decisions under the workmen’s compensation laws of the above states, but it would be highly inconsistent to hold that a caddy is an employee of a country club in the sight of the Workmen’s Compensation Law and not in the sight of the Child Labor Law.

In view of these decisions, it cannot avail us to adopt the contention that a school boy who, after school or during vacation times, acts as a caddy is not engaged in an “occupation.” The term “occupation” has been defined to mean and comprehend “that which occupies or engages the time or attention; the principal business of one’s life; vocation; employment; calling; trade:” Union Mutual Accident Ass’n v. Frohard, 25 N. E. Repr. 642. “Occupation” has been defined to mean “regular business:” Standard Life and Accident Ins. Co. v. Fraser, 76 Fed. Repr. 705. Citations to the same effect might easily be multiplied.

While it can be argued quite convincingly that caddying, in the light of the above definitions, hardly rises to the dignity of an occupation, it is nevertheless true that a caddy is “employed or permitted to work in, about, or in connection with,” an “establishment,” as defined by the Act of 1915.

Our attention has been called to the opinion of Attorney-General Francis Shunk Brown, rendered on Sept. 16, 1915, to the Commissioner of Forestry (Opinions, 1915-1916, page 505). In that opinion the Attorney-General ruled that the exemption of children employed on the farm applied to children employed at State forest nurseries in the light and easy work of keeping young seedling trees free from weeds. While it is frequently the case that the well-kept greensward that now knows the dull thud of divots, in former days was furrowed by the plow, it can hardly be contended that employment on a golf course is employment on a farm. We are, therefore, constrained to advise that, in the present state of the law, minors under fourteen years of age may not be employed or permitted to act as caddies. The relief must be sought at the hands of the Legislature.

From C. P. Addams, Harrisburg, Pa.

NOTE. — See Child Labor Laws Nos. 1, 2 and 3, 25 Dist. R. 40, 79, 196; Employment of Minors, 25 Dist. R. 903; Mugrauer v. McKenzie, 25 Dist. R. 69; Commissioner v. Laskey, 25 Dist. R. 907.


author: Wilhelm, P. J.,

text:
    Mitskus’s Estate.

      Edgar Downey, for Consul General of the Republic of Lithuania at New York City.
    Dec. 16, 1929.
   Wilhelm, P. J.,

— This audit came on to be heard June 3, 1929, pursuant to due notice.

From the evidence we find the following facts;

1. John Mitsgus died on or about Nov. 10, 1918, intestate, unmarried, leaving to survive him Jonas Mitskus and Mary Mitskus, his father and mother. Jonas Mitskus died on or about Jan. 13, 1925, being survived by his wife, Mary Mitskus, who died on or about Feb. 14, 1926.

2. The balance for distribution arises from personal property and amounts to $4572.51, being the proceeds of War Risk Insurance.

3. Exceptions have been taken by the Consul General of the Republic of Lithuania to the payment of counsel fee for this estate in the sum of $750.

The fee bill adopted in this county fixes counsel fees for an estate not exceeding $7500 at $200, and the amount fixed by the fee bill is generally followed as a proper allowance for counsel fees. Under extraordinary circumstances, where an unusual amount of work is involved in the settlement of an estate, a larger amount than that fixed by the fee bill has been allowed, and the practice is, when objection is made to the amount paid for counsel fees, the burden is upon the fiduciary to prove the value of the services of counsel. This was called to the attention of the accountant at the time of the audit, and no attempt has been made to prove the value of the services; therefore, it becomes our duty to follow the fee bill, and to surcharge the accountant, $550, and in this manner the balance for distribution is increased to $5122.51.

4. The Consul General of Lithuania claims the whole of this estate in his official capacity, because he alleges it is distributable under the intestate laws of Lithuania.

The entire estate consists of the proceeds of War Risk Insurance under a contract made by the decedent with the Federal Government. In this contract the insured designated Bella Mitskus as beneficiary of the insurance, alleging she was his sister. The beneficiary admits that she is not the sister of the insured, but is his cousin, with whom the insured resided before entering the service in the World War in the Army of the United States.

A cousin of an insured is not one of the permitted beneficiaries under the Act of Congress. The insured, no doubt, knowing a cousin was not one of the permitted beneficiaries, attempted to practice a fraud upon the Government by designating the beneficiary as his sister, and courts do not permit any one to be benefited by the practice of fraud; therefore, it follows that the named beneficiary shall not gain advantage by reason of the fact that her name appears in the contract as a beneficiary. If the true kinship between the insured and the beneficiary had been revealed in the application, the policy could not have been issued, because the law would not permit it; and the policy having been procured through fraud, it is of no force and effect, in so far as the named beneficiary is concerned.

It is probable, although not definitely stated, that the insured died in the service; and after his death the Federal Government ignored the named beneficiary and paid to his father and mother, to wit, Jonas and Mary Mitskus, almost half of the amount of the insurance. The father and mother died, the father having predeceased the mother. It follows that the balance due and unpaid upon the policy became the estate of the mother, namely, Mary Mitskus: Schultz’s Estate, 96 Pa. Superior Ct. 514.

At the time of her decease Mary Mitskus was a resident and domiciled in the Republic of Lithuania, and the amount due the estate of Mary Mitskus should be paid to the Consul General of Lithuania for the purpose of transmission to the properly constituted authority in Lithuania for the purpose of distribution.

Two papers, which were called Powers of Attorney and alleged to have been signed by the brothers and sisters of the decedent, were offered in evidence. It is unnecessary to give these papers consideration, because, as we view the matter, the brothers and sisters have no standing to claim any portion of this estate at this time, as before indicated. They will have opportunity to present their claims when the estate of Mary Mitskus is adjudicated in the proper forum.

The balance in the hands of the accountant, to wit, $5122.51, is not properly distributable by this court, but should be and is awarded to the Consul General of Lithuania for the purpose of transmission for distribution under the laws of the Republic of Lithuania.

Having examined and audited said account, the same is confirmed absolutely, and the balance in the hands of the accountant, to wit, $5122.51, is awarded to Povilas Zadeikis, Consul General of the Republic of Lithuania at New York, for the purpose of transmission for distribution under the laws of the Republic of Lithuania.

Prom M. M. Burke, Shenandoah, Pa.


text:
    Weyl v. Mt. Sinai Cemetery Association of Pennsylvania.

      Furth, Singer & Barton, for plaintiff.

      Wolf, Block, Schorr & Solis-Cohen, for defendant.
    March 3, 1930.
   Martin, P. J.,

— A bill in equity was filed in this case, praying for a mandatory injunction ordering defendant to permit the burial of the body of plaintiff’s wife in defendant’s cemetery. It was proved that in her lifetime, and at the time of her death, she was of the Christian faith. The prayer of the bill was refused.

Sixteen exceptions were filed to the adjudication. All raise the question of plaintiff’s right to bury the body of his wife in the lot owned by him in the cemetery of defendant.

The rights of the parties are to be determined by an interpretation of the charter provision of the defendant, which reads as follows: “The object of this corporation shall be to purchase and provide a proper and suitable place for a cemetery, to divide the same into lots, to sell and dispose of such lots to individuals, societies or congregations, to be used only for the interment of deceased human bodies of those who by birth, profession or public declaration shall have been of the Jewish faith, under such restrictions, rules and regulations as the board of officers may from time to time establish for the government of lot-holders, burial of the dead, and visitors to the cemetery.”

The intent of the language employed in this charter is to restrict the use of the cemetery to those who were of the Jewish faith at the time of death. It is contended by plaintiff that to reach this conclusion the word “or” in the clause “who by birth, profession or public confession shall have been of the Jewish faith” must be read “and” instead of “or.” A careful consideration of the testimony leads to the conclusion that the purpose for which the cemetery was established is the interment of bodies of those who were of the Jewish faith at the time of death, and that this is disclosed by a proper interpretation of the language of the charter.

The plaintiff purchased his lot in the cemetery subject to this restriction. It is admitted that his wife was not of the Jewish faith at the time of her death. He cannot insist upon burying her body in defendant’s cemetery.

By-laws passed by the defendant association subsequently to the purchase of the lot by plaintiff cannot affect his property rights; nor did a statement submitted to him by the association which he refused to sign; but his refusal to certify that his wife was of the Jewish faith at the time of her death was evidence that he had knowledge of the fact.

The exceptions should be dismissed, and a final decree entered in accordance with the adjudication.

Final decree.

And now, March 3, 1930, upon consideration of the foregoing case, it is ordered, adjudged and decreed as follows:

1. The sixteen exceptions to the adjudication filed by plaintiff are dismissed.

2. The prayer of the bill for a mandatory injunction to compel defendant to permit plaintiff to bury the body of his wife in the cemetery of defendant is refused.

3. The bill is dismissed, at the cost of plaintiff.

.4. The prothonotary is directed to give notice to the parties* or their counsel of record, of the filing of this final decree.

NOTE. — See Weyl v. Mt. Sinai Cemetery Ass’n, 12 D. & C. 439.


author: Alessandkoni, J.,

text:
    Indemnity Insurance Co. of North America v. McGuirk et al.

      Swartz & Campbell, for plaintiff.

      Donoghue, Gibbons & Donoghue, for defendants,
    April 3, 1930.
   Alessandkoni, J.,

— The plaintiff filed a statement of claim setting forth an agreement by which the defendants agreed to indemnify the plaintiff for prospective losses to the extent of $10,000 which the plaintiff might suffer as a result of a bond executed by the plaintiff in favor of the West End Trust Company. The statement of claim further set up losses incurred on the bond which forms the basis of this action on the indemnity agreement. The defendant filed a rule for a more specific statement of claim, setting forth numerous reasons in support of it.

The defendant first alleges that the plaintiff should have attached to its statement of claim a copy of the bond, plans, specifications and agreement referred to in the bond. These instruments together form the basis of the plaintiff’s action, inasmuch as the plaintiff claims that as a result of a breach of the agreement, upon which the bond was given, it was compelled to complete the contract in accordance with the agreement, plans and specifications. All these documents are material, vital and together form the foundation of the plaintiff’s cause of action. They should, therefore, be attached to the statement of claim. All material papers should be attached to the pleadings: Georges Township v. Union Trust Co., 293 Pa. 364; Philadelphia v. Muller, 293 Pa. 360. In the case of Tyrie v. City Bank, 29 Dist. R. 723, presenting a similar situation, the court stated: “Under the provisions of section 5 of the Practice Act of 1915 and the rules of this court, copies of the above written instruments should have been attached to the plaintiff’s statement, or the reason given why it could not or should not be done.” In Franklin Sugar Refining Co. v. Fulton, Mehring & Hauser Co., 1 D. & C. 615, the court stated: “The defendant is entitled to full and specific information as to all the details of the alleged contracts in suit, the breach of the same and the damages claimed, in order that he may determine whether to admit or to deny them in whole or in part, and thereby avoid trial entirely or reduce its trouble and expense by clearly defining and limiting the issues of facts to be determined.”

The defendant next objects to the failure of the plaintiff to give detailed information of the sums of money alleged to have been expended as a result of its liability on the bond. The plaintiff attached to its statement of claim an exhibit, in which the money expended every week was given as an “estimate.” Items of labor, plumbing, etc., are given in a lump sum. Under the decisions in this State, such pleading is faulty. In Frick & Lindsay Co. v. Kent & Kervin, 265 Pa. 264, similar pleading is involved. Objection to this pleading was made by a rule for judgment and the rule was made absolute, the court saying: “As to the first item, the affidavit does not aver how many laborers, who they were, the time each was employed, the price paid each per day or month, the time superintendent was employed, the price paid him, or that the wages paid laborers and superintendent was reasonable or the usual and ordinary charge for such labor.” Accord, Bethlehem Steel Co. v. Topliss, 249 Pa. 417; Badger v. Miller, 1 D. & C. 94. As was stated in Shane Bros. & Wilson Co. v. Painter, 1 D. & C. 734, the defendant is entitled to detailed information regarding the money expended by the plaintiff which it now seeks to recover.

The plaintiff has deducted from its total expenditures various sums received from the West End Trust Company out of the proceeds of certain first mortgage settlements. Here, again, the plaintiff has failed to set forth clearly and in detail the source of these credits and the circumstances under which they were received. Unless this information is stated in a detailed and exhaustive manner the defendant will not be in a position to affirm or deny its correctness, as is required by our Practice Act and the rules of this court.

And now, to wit, April 3, 1930, the rule for a more specific statement of claim is made absolute.


author: Lamorelle, P. J.,

text:
    Nusbaum’s Estate.

      William T. Cooper, for claimant, exceptant.

      Ralph B. Umsted (Umsted & Wolfe with him), contra.
    March 27, 1930.
   Lamorelle, P. J.,

— The Auditing Judge in a well-considered opinion has found as a fact that the services rendered were worth $20 per week for a full term of 130 weeks, or a total of $2600, and that no payment therefor has been made. He has, however, ruled that the services were performed not because of an express or an implied contract, but upon the expectation of a legacy, the amount of which proved disappointing to the claimant; the ruling was based on what is said in Gilbraith’s Estate, 270 Pa. 288, and authorities therein cited. In our opinion, the Auditing Judge has given undue importance to this and kindred cases, both before and after. We are of opinion that these cases and Swieczkowski v. Sypniewski, Exec’r, 294 Pa. 323, are not applicable to the facts in the instant case, because here there was an expectancy based upon a promise and not a mere expectancy or hope that claimant would be remembered in a will.

Mrs. Nusbaum, a widow, had lived with Mrs. Fritz as a boarder for some nine years immediately preceding her death, except for two short periods of time; one while at a hospital for an operation, followed by a trip to the seashore, and another for the last three weeks of her life, while she was in another hospital, where she died.

On Aug. 11, 1926, she made a will, wherein she bequeathed $1000 to Mrs. Fritz. She died Jan. 3, 1928. Thus the nursing continued for nearly seventeen months after the execution of the will.

What is meant when we speak of services performed in expectation of a legacy? Do we mean something in hope or expectation without any understanding whatsoever, or do we mean services rendered because of a promise, express or implied, to pay at death? This is what Mr. Justice Sharswood says on the subject in Thompson v. Stevens, 71 Pa. 161, 169: “The second question may be briefly disposed of. Certainly, where services are gratuitously rendered under the mere expectation of a legacy, there can be no recovery, for in such a case there is no contract at all: Little v. Dawson, 4 Dall. 111; Swires v. Parsons, 5 W. & S. 357. But in Roberts v. Swift, 1 Yeates, 209, it was decided that if one does services for another at his request, no matter what his expectations were, assumpsit may well be supported to recover a compensation. And in Snyder v. Castor’s Admin’r, 4 Yeates, 353, it was said by Mr. Chief Justice Tilghman, in pronouncing the opinion of the court: ‘It has been urged by the defendant’s counsel, that if a person serves another through the expectation of a legacy, in which he is disappointed, he cannot support an action. The law certainly is so, but cannot be applied to a case where the person for whom the services was done promises to pay for it; and it is immaterial whether the promise be made before or after the service.’ ”

It is said in Gilbraith’s Estate, 270 Pa. 288, 295: “So far as any conclusion can be drawn from the statements quoted, it would be the witnesses thought claimant’s services were to be recompensed by a legacy, and not otherwise; and the case, in this aspect, is within the rule that where services are rendered in expectation of a legacy to be given, there can be no recovery against a decedent’s estate, for this excludes the idea of a contractual relation between the parties: Miller’s Estate, 136 Pa. 239, 210; Cummiskey’s Estate, 224 Pa. 509, 513.”

This case really turned on the question of periodic payments, and the above quotation would seem to show that “expectation” meant expectation and nothing more, for while expectation alone naturally excludes a promise, express or implied, an expectation based on a promise does not exclude the idea of an agreement.

While similar reference appears in Swieczkowski v. Sypniewski, Exec’r, 294 Pa. 323, it appears that the relationship was that of niece and uncle, and as the niece had been taken into the family by her uncle and maintained by him as a member thereof, it was held that an express contract had to be proved.

In the instant case the parties were not related.

That decedent recognized the services rendered is shown by the will itself, wherein a legacy of $1000 is given the claimant, and it is a reasonable inference that the legacy was given because of the desire to pay for the services rendered. Claimant’s statement that Mrs. Nusbaum told her that she had willed her one thousand dollars when she had taken her (Mrs. Nusbaum) through the other sickness stands uncontradicted. Likewise, the testimony of Mrs. Kate Harley that Mrs. Nusbaum told her that she had willed Mrs. Fritz two thousand dollars stands uncontradicted. Moreover, the following from pages 39 and 40, notes of testimony of the claimant, is material.

By Mr. Umsted: Q. You heard Mrs. Edna Nusbaum testify that Mrs. Nusbaum had said in your presence and in her presence that she would take care of you? A. Yes; I heard that. Q. You heard her say that Mrs. Nusbaum had in her presence and your presence said that she would take care of you in her will? A. In my presence — she told me that time and again she would take care of me, and she never could get done talking about what I had done for her, that she never could repay me for what I had done. Q. What she was going to do for you? A. Yes; she never could repay me for what I had done for her. Q. Is that the reason you were so attentive to her? A. Well, it was one reason, of course. Q. It was the principal reason, wasn’t it? A. Yes; certainly.

And from page 42, notes' of testimony:

By Mr. Umsted: Q. By the way, how much did Mrs. Nusbaum say she would leave you in her will? A. Well, I never asked her. She wouldn’t allow me to ask her that. She would say you are interfering with my private affairs. That was her talk. Q. How much did you expect? A. Well, I expected more than that; I expected at least $3000 — not more.

It, therefore, follows that payment was to be by will; that services were performed because of this understanding; that claimant is dissatisfied in the amount of the legacy, in that it is not what she “expected” (to get). Accordingly, she elects to claim on a quantum meruit. In these circumstances, the Auditing Judge having fixed the value of the serives at $2600, the legacy is to be taken as a payment on account (($1000, less tax, $100), Kujawski v. Sobelewski, 72 Pa. Superior Ct. 326; and the exceptions are to be sustained to this extent, and the claimant is awarded $2600, less $900, with interest thereon.

Accordingly, exceptions one and two are dismissed, and exceptions three, four and five are sustained, as indicated in and by this opinion, and the adjudication, thus modified, is confirmed absolutely.


author: O’Hara, Dep. Att’y-Gen.,

text:
    Treasurers of School Districts.
    Dec. 12, 1929.
   O’Hara, Dep. Att’y-Gen.,

— Replying to your request to be advised whether a corporation, bank or trust company may be elected treasurer of a school district: Sections 303, 303 (a), 326, 332, 509 and 519 of the Act of May 18, 1911, P. L. 309, as amended by the Acts of May 20, 1921, P. L. 972, May 9, 1923, P. L. 178, June 18, 1923, P. L. 839, and April 7, 1927, P. L. 170, are material, or, in our opinion, throw some light upon the question submitted.

While the School Code provides that the treasurer of the district shall be a member of the sinking fund committee, it makes no provision for membership on this important committee if such treasurer were a bank, trust company or corporation.

The School Code further provides, in section 332, that if any school treasurer shall convert the moneys of the district to his own use, etc., or shall prove to be a defaulter, etc., such act shall be deemed and adjudged to be an embezzlement, and provides a penalty, upon conviction thereof, of a fine or imprisonment, but makes no provision for the punishment of any officer or agent of a corporation embezzling funds of a school district in the corporation’s custody as treasurer of the district.

Section 326 provides that “every person” elected as treasurer shall furnish a bond. Section 303 (a) provides that the same person shall not be secretary and treasurer of any board in district? of the second class; that in districts of the third and fourth class, they may be members of the board, and in districts of the first class, they shall elect the treasurer of the city as school treasurer.

There is nothing in the School Code which expressly or by implication indicates the intention to permit artificial persons to hold office in the school system, or warrants an extension of the words “person” and “he,” used in the sections above noted, to include a corporation.

“. . . although it cannot be denied but that the bank, being a corporation, and therefore a person in contemplation of law, may be included by the use of the term ‘person,’ yet, in the construction of statutes, the terms or language thereof are to be taken and understood according to their ordinary and usual signification as they are generally understood among mankind, unless it should appear from the context and other parts of the statute to have been intended otherwise; and, if so, the intention of the Legislature, whatever it may be, ought to prevail. Therefore, in the case before us, the term ‘person,’ being generally understood as denoting a natural person, is to be taken in that sense, unless from the context or other parts of the act it appear that artificial persons, such as corporations, were also intended to be embraced. Besides, it has generally, if not universally, been the case that the Legislature, in passing acts, when it was intended that the provisions thereof should extend to corporations as well as to individuals, designate specifically so as to leave no room for doubt: . . .” School Directors v. Carlisle Bank, 8 Watts, 289, 291.

This case was commented on in Philadelphia Saving Fund Society v. Yard, 9 Pa. 359, where it was said: “. . . And although there are some of the dicta in that case which I apprehend do not meet the entire approbation of this court, yet the exact point ruled, that is, that the word person does not usually include corporations when used in statutes or common parlance, although in its legal import it embraces them, is well, and of good authority. . . .”

Unless otherwise specifically provided, the officers of the public school system must be individuals, citizens and residents of the district. Had the Legislature intended that the duties of treasurer of a school district might be discharged by a corporation, bank or trust company, it could have so provided, but, in the absence of such express legislation, we are of the opinion, and so advise, that a corporation, bank or trust company may not serve as treasurer of a school district.

From C. P. Addams, Harrisburg, Pa.


author: Saylor, Dep. Att’y-Gen.,

text:
    Powers of Merged Trust Companies and Banks.
    Feb. 24, 1930.
   Saylor, Dep. Att’y-Gen.,

— We have received your request for an opinion-from this department on various questions arising by reason of the enactment of Acts of Assembly Nos. 365 and 366, approved April 26, 1929, both being P. L. 839.

Act No. 365 authorizes merged or consolidated corporations, possessing fiduciary powers and composed of trust companies, or banking companies, or both, whether created by the Commonwealth or the Federal Government, and located in the Commonwealth, to act in any fiduciary capacity under instruments naming or appointing one of their constituent companies to such fiduciary capacity. Act No. 366 validates the grant of letters testamentary in all relationships of any fiduciary nature assumed by, and acts in fiduciary capacities performed by, merged or consolidated corporations, such as those just referred to, under like instruments of appointment.

These questions are as follows:

1. Is an Orphans’ Court required by law to appoint substituted trustees for trust estates held by a trust company (a) that merged or consolidated with another trust company prior to April 26, 1929, or (b) that merges or consolidates with another trust company after April 26, 1929, or are the trust estates in either or both cases transferred under authority of the said Acts of 1929?

2. Is an Orphans’ Court required by law to appoint substituted trustees for trust estates held by a trust company (a) that merged or consolidated prior to April 26,1929, with a national banking association authorized to act in fiduciary capacities, or (b) that merges or consolidates with such national banking association after April 26, 1929, or are the trust estates transferred in either or both cases under authority of the said Acts of 1929?

3. What legal action is necessary for the transfer of trust estates from a national banking association to a trust company, in the case of the merger or consolidation of such companies prior to, as well as after, April 2'6,1929?

4. In the case where a trust company, under an agreement to collect and liquidate all the assets of another trust company having fiduciary powers, takes over such assets and assumes all the deposit liabilities of said company, is such procedure a “merger” or “consolidation” as would come within the provisions of the acts referred to?

It is clear from the titles of the acts and their phraseology that the purpose of their enactment was to remove uncertainty as to the legality of fiduciary acts performed by a trust company or banking company, following a merger or consolidation with another institution duly appointed and acting as fiduciary prior to such merger or consolidation, and at the same time to ensure, in the case of such mergers or consolidations in the future, that the powers and rights of the merged or consolidated company theretofore acting as fiduciary automatically and legally pass from it to its successor without further action on the part of such fiduciary or any judicial authority having jurisdiction over it.

The question arises, however, as to whether or not the Legislature has the power to interfere in any way with the jurisdiction of the various Orphans’ Courts of the Commonwealth in appointing such fiduciaries and superintending their activities. Article V, section 22, of the Constitution of the Commonwealth of 1873, provides that the various Orphans’ Courts: “. . . shall exercise all the jurisdiction and powers now vested in, or which may hereafter be conferred upon, the Orphans’ Courts. ...” and that: “In every county Orphans’ Courts shall possess all the powers and jurisdiction of a Registers’ Court, and separate Registers’ Courts are hereby abolished.”

First reference to Registers’ Courts is found in the Constitution of 1790, where article V, section 7, prescribes the composition thereof, but says nothing about their powers or jurisdiction. This section is copied verbatim in the Constitution of 1838, under like article and section. We must look to legislative enactment for such powers and jurisdiction. Section 23 of the Act of June 14, 1836, P. L. 628, 634, and section 19 of the Act of June 16, 1836, P. L. 784, 792, both now repealed, enumerate such powers. These sections are followed almost completely by the Act of June 7, 1917, P. L. 363, where, in section 9, sub-sections (a,), (b), (c) and (d), the jurisdiction of the several Orphans’ Courts of the Commonwealth, whether separate or otherwise, is held to extend to and embrace the appointment of various fiduciaries and the control of their activities. The concluding paragraph of said section 9 is as follows: “And such jurisdiction shall be exercised under the limitations and in the manner provided by law.” - '

In the absence of such a clause as is quoted, there might have been a question as to whether or not the Legislature, by subsequent act, could have in any way restricted the exercise of duly granted powers or interfered with the jurisdiction of the courts so far as the supervision and administration of estates in the hands of previously appointed trustees is concerned. It might well be that, while a certain trust company is, as trustee of an estate, satisfactory to an Orphans’ Court or the beneficiary, it might cease to be when merged with another institution, and the court, of its own will or on petition of the beneficiary, might desire to exercise its supervisory power in such manner as to take the trust estate out of the control of the merged institution. However, in the absence of constitutional limitation, and in view of the clause referred to, it seems clear that the Legislature, in granting various rights and privileges to the Orphans’ Courts in the Act of 1917, intended that such powers and jurisdiction should be at all times within the control of the Legislature and not definitely beyond abridgment or modification by it. So far as we have been able to discover, there is nothing in the books holding that the Act of 1917 improperly curtailed such powers and jurisdiction.

It would seem, therefore, that the two Acts of 1929 are clear as ■-to title and purpose and would be held constitutional even in the event of an attack upon them as infringing upon the powers of the Orphans’ Courts. In any case, with these acts on the statute books, so far as the Department of Banking is concerned, there should be no hesitancy! in considering that the effect of this new legislation is to carry on uninterrupted the fiduciary relationship of trustee to cestui que trust, even though the trustee ceases to exist as the entity it was when named or appointed for the trust estate, but becomes merged with another institution which was previously a stranger to the trust. So far as the Department of Banking is concerned, no remedial decree on the part of the Orphans’ Court is required. In answer to questions 1, 2 and 3 above listed, you are, therefore, advised as follows:

1. The Orphans’ Court is not required by law to appoint substituted trustees for trust estates held by a trust company that merged or consolidated with another trust company prior to April 26, 1929, or that after that date merges or consolidates with another trust company.

2. The Orphans’ Court is not required by law to appoint substituted trustees for trust estates held by a trust company that merged or consolidated with a national banking association prior to April 26, 1929, or that after that date merges or consolidates with a national banking association.

3. That no legal action is necessary for the transfer of trust estates from a national banking association to a trust company when the merger or consolidation of the two was effected either prior to or after April 26, 1929,

The fourth question relates to the meaning of the words “merger” and “consolidation” in the Acts of 1929. Are the words used in the sense in which they appear in other acts of the Legislature relative to mergers and consolidations of banks and trust companies?

The Act of May 3, 1909, P. L. 408, authorizes the merger and consolidation of two or more companies organized and existing under the laws of the Commonwealth and transacting the same or a similar line of business, thereby creating a new entity existing by virtue of a charter of the Commonwealth. It can have no application to the merging or consolidation of a Pennsylvania trust company with a national banking association. Consequently, the words “merger and consolidation” used in the Acts of 1929 referred to are not used in the same sense as in the Act of 1909.

The Act of May 9, 1923, P, L. 174, provides for the succession of merged or consolidated trust or banking companies incorporated under the laws of the Commonwealth to all the relations, obligations and liabilities of the component companies, and further provides that such new corporation “shall execute and perform all the trusts and duties devolving upon it in the same manner as though it had itself assumed the relation or trust.” In this act the words “merger” and “consolidation” are used in the same sense as in the Act of 1909.

The Act of April 16, 1929, P. L. 522, provides for the “merger and consolidation” of national banking associations with State banks, trust companies, or banks and trust companies, whereby the rights, franchises and interests of the national banking association in and to every species of property are transferred to the State institution, which, under the provisions of section 7 of that act, holds and enjoys all the rights and property, etc., of the national banking association, inter alia,: “. . . including the right of succession as trustee, executor, or in any other fiduciary capacity, if qualified by its charter under the laws of this Commonwealth, in the same manner and to the same extent as was held and enjoyed by such national banking association.”

The Act of April 25, 1929, P. L. 763, provides for the conversion of national banking associations into State banks or trust companies, which by the provisions of section 8 succeed to the fiduciary rights and powers of such national banking associations in the same manner as is provided by section 7 of the Act of April 16, 1929, P. L. 522.'

In the latter two acts the use of the words is in a somewhat different sense than in the Acts of 1909 and 1923. Nevertheless, it seems that the words “merger or consolidation” in all of the Acts of 1929 herein referred to are intended to cover only those cases where, by proper action of their stockholders, two or more trust or banking companies join together all of their corporate rights, franchises, privileges and interests. Such a situation does not exist where there is merely a taking over of the physical assets of one company by another, or an absorption of one company by another, caused by an assignment of the property for the benefit of the creditors, or otherwise. No new corporation is created, and no merged or consolidated corporation succeeds to all the rights, powers, privileges, franchises and interests of the “absorbed” company, as is contemplated by the Acts of 1909, 1923 and 1929. Consequently, there is no “merger and consolidation.”

In answer to question 4 above listed, you are, therefore, advised as follows: 4. In the case where a trust company, under an agreement to collect and liquidate all the assets of another trust company having fiduciary powers, takes over such assets and assumes all the deposit liabilities of said company, such procedure is not a “merger” or “consolidation” as would come within the provisions of the Acts of April 26, 1929.

In such cases the Department of Banking could properly require a decree by the Orphans’ Court having jurisdiction, authorizing the bank which took over the assets to act as substituted trustee for the bank assigning them.

Prom C. P. Addams, Harrisburg, Pa.


author: Bkoomall, J.,

text:
    Lessy v. The Great Atlantic and Pacific Tea Company.

      John E. McDonough, for plaintiff; William C. Alexander, for defendant.
    Oct. 18, 1929.
   Bkoomall, J.,

— Defendant moves to strike off the statement of claim and dismiss the above action for the reasons that (a) in another suit between the same parties, as of No. 156, June Term, 1922, C. P. of this county, a non-suit was entered at the trial and defendant moved to take it off; and that (b) the statment of claim was not filed within one year, nor within six years after the statute of limitations began to run.

This suit is to recover one year’s rent from April 30, 1922, due monthly under a written lease, while the other suit, No. 156, June Term, 1922, is between the same parties, involving the same cause of action, to wit, on the same written lease, to recover two months’ rent due from April 30, 1922. The motion to take off the non-suit in the last-mentioned suit has been withdrawn by plaintiff since the argument of this motion. It was never finally disposed of by the court.

Defendant now contends that the entering of the non-suit and the motion to take it off are res judicata, but with this we cannot agree. Fine v. Soifer, 288 Pa. 164-173, clearly indicates that there must be a refusal of the motion to take off the non-suit or some final disposition thereof in order that the same shall be conclusive of the plaintiff’s case. The withdrawal of the motion to take it off places the suit in the same condition it was before the motion was made.

Considering the second reason assigned, it appears that this suit was commenced by summons issued March 26, 1927, and that the statement of claim was not filed until July 15, 1929. No action of any kind was taken in the meantime. Defendant did not enter a judgment of non pros., as it had a right to do under our rule, at the expiration of one year. Not having exercised this right, we hold that defendant thereby acquiesced in the delay and cannot now, for that reason, strike the statement off.

It is also averred in connection with the last reason, and it is a fact, that the statement of claim was not filed within the six years’ period fixed by the statute of limitations for the commencement of actions. The suit was actually commenced within the period, and from the record it appears that service of summons was made according to law. The suit having been brought in time, under Hemphill v. McClimans, 24 Pa. 367, the period after issuing of the writ and the filing of the statement of claim will not be counted. It is only necessary that the action be commenced within the statutory period. We have not been referred to any authority holding that the statement of claim must be filed within the six-year period.

And now, to wit, Oct. 18,1929, above motion refused and defendant allowed fifteen days in which to file an affidavit of defense or judgment sec. reg. et sec. leg.

Prom "William R. Toal, Media, Pa.