author: Gordon, Jr., J.,

text:
    Keystone State Construction Co. v. Philadelphia Electric Co.

      Actions — Torts—Contracts—Negligence—Set-off.
    1. Where the breach of a contractual duty rests upon negligeneS, such negligence may be made the basis of an action on the contract for damages.
    2. Although a tort may not be set off in a contractual action, a right of action for breach of a contract by negligence may be asserted in such an action.

      Contracts — Bights of parties to sue on a contract who cure not parties to the contract.

    3. Where a contract is for the benefit of the promisee, or, in other words, where the third person claiming a benefit under the contract is a creditor beneficiary, there can be no recovery.
    4. In the case of a third person, there may be a recovery only where the consideration for the promise is a transfer of property or money to the promisor, or where unusual circumstances are present.
    5. Where a contract between a city and a construction company for the building of a subway provides that the construction shall support conduits and subsurface structures, a public service company cannot sue the contractor for negligence in failing to protect its conduits where there is nothing in the contract to take it out of the settled rule that a third person has no right to sue upon a contract.
    6. Even if such public service corporation could sue upon the contract, a requirement of arbitration would be as binding upon it as upon the parties to the contract.
    7. Where a contract is under seal, a third person not a party cannot sue upon the contract.

      Practice, C. P. — Statement of claim — More detailed statement — Demurrer.
    8. Where a defendant has not asked for a more detailed statement of claim, he •is not entitled to judgment on demurrer because of a defective statement.
    9. An objection to lumping charges is properly taken by a rule for a more specific statement.
    Reply raising questions of law. C. P. No. 2, Phila. Co., June T., 1927, No. 3145.

      Joseph B. Embery, for plaintiff.

      W. J. Macintosh and F. B. Bracken (of Morgan, Lewis & Bockius), for defendant.
    Dec. 31, 1927.
   Gordon, Jr., J.,

This case is before us upon the plaintiff’s reply to the defendant’s counter-claim, raising questions of law.

The action is brought by the plaintiff to recover the sum of $33,460, claimed to be owing from the defendant under certain contracts between the plaintiff and the defendant in connection with the construction by the plaintiff of the subway in North Broad Street, in the City of Philadelphia. The defendant admits the amount claimed by the plaintiff to be due, and seeks to set off in counter-claims against this debt the sum of $154,926.18. These counterclaims are embodied in fifty-two paragraphs of the affidavit of defence, which, for the purpose of considering the questions of law raised by the reply, may be divided into two groups: First, those embraced within thirty-five of the paragraphs and aggregating $146,266.75, which rest upon alleged violations of contracts between the plaintiff and the City of Philadelphia for the construction of the subway, to which the defendant was not a party, but upon which it claims the right to sue as a third party beneficiary thereunder; and, second, those embraced within the seventeen remaining paragraphs and aggregating $8659.43, which rest upon alleged violations of contractual relations claimed to have been entered into directly between the parties.

Considering the first group, the fundamental question raised by the pleadings is whether the defendant, which was not a party to the contracts between the plaintiff and the City, is entitled, because of their terms, to maintain an action for breach? The provisions of the contracts and their accompanying specifications relevant to this question follow. The regulations for bidding contained in the specifications required that the unit price bid by the contractor (the plaintiff) should include a sum sufficient to provide “for the support and protection of all structures encountered in the work of this contract, including those now within the masonry lines of the subway structure that must be removed and relocated up to the time of their removal; the support and protection of structures that it will be necessary to relocate within the excavation lines or contiguous thereto; . . . the cost of relocating any structures the contractor may move for his own convenience; and the back filling . . . and the repair or reconstruction of buildings or pipes or other structures that may be damaged.” The specifications also contain the provisions that: “21. Relocation of structures. The surface and sub-surface structures that are within the masonry walls of the subway structure, or so near thereto as to necessarily interfere with its construction or with the construction of its appurtenant parts, shall be moved and relocated in accordance with detailed plans to be furnished as the work progresses. In general, structures belonging to franchise companies will be relocated by the owner and without cost to the contractor. . . .” “22. Co-operation with public service companies. The contractor shall co-operate with other contractors and with the employees, officers and agents of . . . the various companies which own or have supervision over the . . . electrical conduits and other structures on the line of the work, and shall conform to requirements of the owners of such structures in regard to their safe maintenance. In case of a dispute between the contractor or . . . agents of . . . public service corporations regarding the amount or character of the work to be done under this contract, the decision of the engineer shall be final. The contractor shall give to authorized representatives of said . . . companies free access to the excavation and site to inspect the condition and support of their structures.” The plaintiff is also required to “assume all risk and responsibility for casualties of every description in connection with the work . . . that may occur as a consequence of, or during the progress of, the work under this contract;” and in the event of injury, to “fully restore such structures ... to as good condition as existed before the injury was done;” to support and protect, up to the time of their removal, and when relocated within the excavation lines, all surface and sub-surface structures which had to be permanently located; and to conform to the requirements of the owners of such structures in regard to their safe maintenance. The contract itself provided that the plaintiff “covenants, contracts and agrees ... to do and perform all the work and labor required, . . . including the following, to wit: . . . The support and protection of, and, where necessary, the underpinning, securing, bulkheading and maintaining of all buildings and all other structures of any description affected or liable to be affected or disturbed by the work of construction of the work aforesaid; the support and protection of walls, vaults, water mains, pipes, tubes, conduits, sewers, drains, subways and all other existing surface and sub-surface structures and railways over and adjacent to the said work of construction; the permanent support of surface and subsurface structures that may be over, adjacent to or in the cavity excavated; . . . and in strict and exact accordance with the proposal and specifications attched hereto and made a part hereof, as fully to all intents and purposes as though herein set out at length.”

The items of counter-claim embraced in the thirty-five paragraphs now under consideration are based upon the alleged failure of the plaintiff to perform work involved in the discharge of the foregoing duties, or its negligent performance of such work, with the consequent damage claimed to have been suffered by the defendant. The plaintiff’s first contention is that, since all of these items of counter-claim sound in tort, the defendant may not set them up here under the well-known rule that damages sounding in tort may not be set off in a contractual action. With this contention we cannot agree. It is true that the basis of the claims is the alleged negligent performance by the plaintiff of its duties under the contract. It is equally well settled, however, that where a breach of a contractual duty rests upon negligence, such negligence may be made the basis of an action on the contract for damages. In other words, while a pure tort may not be set off in a contractual action, a right to damages for breach of a contract by negligence may be asserted in such an action.

A more serious question, however, is presented by the plaintiff’s contention that the defendant here has no standing to maintain a suit upon the contract between the plaintiff and the City of Philadelphia. This question of the right of a third party to sue upon a contract has been the subject of a long line of judicial decisions, not only in this State, but in all other jurisdictions. It is not entirely free from difficulty in any instance, and much legal learning has been expended in distinguishing those cases in which a third party may sue upon a contract from those in which suit may not be brought. Under the authority of Brill v. Brill, 282 Pa. 276, which was affirmed in a per curiam, opinion by the Supreme Court, this question was formulated as the test for determining whether a third party beneficiary of a contract may sue upon it: Was such third party primarily intended to be benefited by the contract, or was the primary purpose to benefit one of the parties to it? Judged by this standard, it would seem that, in the contract before us, the principal purpose of the requirements that the plaintiff should do the work connected with the relocating and protecting of the surface and sub-surface structures in Broad Street, belonging to third parties, was to secure the performance of a moral, if not a legal, duty resting upon the City to protect the property of others which might be affected injuriously by the operation of building the subway. The primary purpose was in relief of the City in connection with a duty resting upon it rather than to benefit others. In the recent case of Greene County, for use of Crescent-Portland Cement Co., v. Southern Surety Co., handed down by our Supreme Court on Dec. 7, 1927, Mr. Justice Kephart, after reviewing at length all the preceding authorities, enunciated the following summary of the entire law upon the subject:

“Our conclusions may be summarized as follows: Under the general rule stated in Blymire v. Boistle, supra, and followed for almost a century, where the contract is for the benefit of the promisee, or, in other words, where the third person is a creditor beneficiary, there can be no recovery. In the case of a donee beneficiary, or where the contract is made for the sole benefit of a third person, there may be recovery only where the consideration for the promise is a transfer of property or money to the promisor, or where unusual circumstances are present. There are several classes of cases — such as suits against an assignee for the benefit of creditors (Hinds v. Holdship, supra), or suits by an undisclosed principal on a contract made by his agent (Hubbert v. Borden, 6 Wh. 79)—which are generally referred to as exceptions to the general rule, but they are really governed by other principles, such as trusts, agency, etc. Even if we were to assume this to be a donee beneficiary contract, there could be no recovery, because no money or other property has been placed in the hands of the promisor, and the case does not fall under any of the recognized exceptions to the general rule.

“There is one other reason why this plaintiff cannot maintain a suit on the bond. This is an action on a sealed instrument, and in Strohecker v. Grant, 16 S. & R. 237, 241, we held that, whatever the rule might be in assumpsit, there could be no recovery in covenant by one not a party to the instrument. This rule was followed in De Bolle v. Pennsylvania Ins. Co., 4 Wh. 68. See, also, Mississippi R. R. Co. v. Southern Ass’n, 8 Phila. 107, 108. It is true that in Brill v. Brill, supra, the court below said that the rule fell when the distinction between pleadings in covenant and assumpsit was abolished. As we pointed out above, that case was decided purely upon the ground of public policy. Furthermore, we cannot agree that the proposition that one not a party to a sealed instrument cannot sue upon it rests entirely upon rules of pleading. Prof. Williston says (section 401) that ‘none of the earlier cases which allowed a right of action to one who was not a party to the contract related to contracts under seal, and where statutes have not taken away the importance of the distinction between sealed and parol contracts, the rule that one who is not a party to a contract under seal cannot sue upon it is still applied to contracts (either) to benefit or pay a debt to a third person.’ In this State, speaking generally, a seal retains its common law force, and we must conclude that the rule remains unchanged.”

Applying this summary of the rules of law upon this subject, it seems conclusive that the defendant here has no right of action against the plaintiff for breach of the latter’s contract with the City of Philadelphia; first, because the defendant does not come within any of the designated exceptions to the general rule that a third person has no right to sue upon a contract; and, second and conclusively, because the contract in this case being under seal, there can be no recovery under it in any case by a third person.

This disposes of thirty-five of the fifty-two items of counter-claim relied upon by the defendant. Before passing to the remaining seventeen items, aggregating $8659.43, it may be noted that, apart from the question just discussed, the defendant’s claim is defective for an additional reason. The contract and specifications contain, inter alia, the following provisions: “If, in the opinion of the Director of City Transit of Philadelphia, any default shall happen on the part of the said Keystone State Construction Company, we will pay all loss occasioned thereby, and that the ascertained amount thereof which shall be determined by the said director, and of the truth of which oath or affirmation shall be made thereto by the said director, shall be final and conclusive upon us;” and (section 22 of the specifications) “in case of a dispute between the contractor and . . . public service corporations regarding the amount or character of the work to be done under this contract, the decision of the engineer shall be final.” The defendant nowhere avers that the defaults, which it claims the plaintiff committed in the performance of the contract, were submitted to the determination of the director or of the engineer, or that any award upon its claims in this regard was made by the director. It is clear that, even if the defendant could sue upon the contract, it would be subject to the contract in its entirety and to all its relevant provisions, and the requirement of arbitration would be as binding upon the defendant as upon the parties to the contract. It follows, in any event, therefore, that the defendant would be debarred from maintaining its action, because it has failed to submit its claims to the director for arbitration, as the contract provides.

The seventeen claims which are made the subject of counter-claim, independent of the contract between the plaintiff and the City, relate to alleged special undertakings by the plaintiff to perform work at the special instance and request of the defendant. The principal objection to these items is based upon the contention that they are' lumping charges and are not adequately itemized. This objection is not, in our opinion, well taken. We agree with the plaintiff that the items in question are lumping charges. This, however, would not defeat the defendant’s right of recovery. Such an objection is properly raised only by a rule for a more specific pleading. The existence of a special contract in each ease is, generally, adequately averred; the details of the claims should be set forth with more particularity. The plaintiff has not asked for a more detailed statement of the claim, and for such a defect of pleading it is not entitled to judgment on its demurrer. As the items are defective for the reasons stated, however, the defendant will be given an opportunity to amend its counter-claim in this regard.

The Practice Act of 1915 provides that set-offs and counter-claims “shall be regarded as the defendant’s statement of claim, and the plaintiff’s reply as an affidavit of defence,” and that where the reply or affidavit of defence raises a question of law, if, in the opinion of the court, “the decision of such question of law disposes of the whole or any part of the claim, the court may enter judgment for the defendant, or make such order as may be jüst.” As our decision is in favor of the plaintiff upon the law relating to all of the defendant’s counter-claims, except the seventeen items mentioned, which aggregate $8659.43, it follows that the plaintiff is entitled to judgment in its favor for the difference between the plaintiff’s claim of $33,460 and $8659.43, as to which we hold the plaintiff’s reply insufficient, to wit, $24,800.57, together with interest from June 9, 1927.

The plaintiff’s reply raising questions of law is accordingly adjudged sufficient as to the sum of $146,266.75, and insufficient as to the sum of $8659.43, leave being granted to the defendant to amend its counter-claim in accordance with this opinion as to the latter amount, and judgment is now entered in favor of the plaintiff for $24,800.57, with interest from June 9, 1927, as to which the defendant’s affidavit sets up no valid defence.


source: Caselaw Access Project

author: Wagner, Dep. Att’y-Gen.,

license: Public Domain

text:
    Casualty Insurance Reserves.

      Casualty insurance companies — Reserves—Amount of — Act of May 17, 19U.

    The reserve of casualty Insurance companies required in their annual statement for compensation claims under policies written in the preceding three years, under section 313 (d) of the Insurance Department Act of May 17, 1921, P. L. 789, must be for the first year of the three-year period either 65 per cent, of the earned premiums, less proper deductions, or the present value at 4 per cent, interest of determined and estimated unpaid claims, whichever may be greater, and for the second and third years, 65 per cent, of the earned premiums, less deductions.
    Department of Justice. Opinion to Hon. Matthew H. Taggart, Insurance Commissioner.
    July 13, 1927.
   Wagner, Dep. Att’y-Gen.,

I beg to acknowledge receipt of your letter of July 7th, requesting that you be advised relative to the proper method of computing the reserve required to be set up in the annual statement of a stock or mutual casualty insurance company or exchange for compensation claims under policies written in the three years immediately preceding the date as of which the particular statement is made under the provisions of section 313 (d) of the Insurance Department Act of 1921 (Act of May 17, 1921, P. L. 789).

Section 313 of the above act prescribes the method for the computation of the reserve required of stock and mutual casualty companies for outstanding losses under insurance against loss or damage from accident to, or injuries suffered by, employees or other persons. Sub-sections (ó) and (d) of this section deal with the computation of such reserve for compensation claims. The relevant parts of the section are:

“Section 313. Computation of Reserve. The reserve required of stock and mutual casualty insurance companies and exchanges for outstanding losses under insurance against loss or damage from accident to, or injuries suffered by, an employee or other person, and for which the insured is liable, shall be computed as follows: . . .
“(d) For all compensation claims under policies written more than three years prior to the date as of which the statement is made, the present value at 4 per centum interest of the determined and estimated future payments.
“(d) For all compensation claims under policies written in the three years immediately preceding the date as of which the statement is made, such reserve shall be 65 per centum of the earned compensation premiums of each of such three years, less all loss and loss expense payments made in connection with such claims under policies written in the corresponding years, but, in any event, in the case of the first year of any such three-year period, such reserve shall be not less than the present value at 4 per centum interest of the determined and the estimated unpaid compensation claims under policies written during such year.”

To illustrate, let us assume the case of a company which has filed a statement as of Dec. 31, 1926. The three-year period referred to in section 313 (d) comprises, therefore, the years 1924, 1925 and 1926. It is required that the reserve for all compensation claims arising under policies written in these three years shall be 65 per centum of the earned compensation premiums of each of such three years, less all loss and loss-expense payments made in connection with such claims under policies written in such three years respectively.

A reserve so computed is a sufficient reserve for claims arising for the three years indicated, except, however, as to “the first year” of such three-year period. There is a proviso that the reserve for such first year shall be not less than the present value at 4 per centum interest of the determined and the estimated unpaid claims under policies written during each year. “The first year” of the three-year period used in the illustration is the year 1924. The only other construction which could be given to the phrase “the first year of any such three-year period” is that it refers to the year 1926. 1926, however, is not the first year of such period, but the last year of such period.

A consideration of sub-sections (c) and (d) oí section 313 confirms the construction herein given to the phrase “the first year of any such three-year period.” Section 313 (6) provides that the reserve for all compensation claims under policies written more than three years prior to the date as of which the particular statement is made shall be the present value at 4 per centum interest of the determined and estimated future payments. In the illustration suggested, this would apply to the reserve for all claims under policies written in 1923 or prior thereto. It is, therefore, reasonable that the reserve for 1924 should be required to be either 65 per centum of the earned premiums for that year, less losses and loss-expense payments made in connection with claims under policies written in that year, or the present value at 4 per centum interest of the determined and estimated unpaid claims under policies written during that year, whichever may be greater, and that the reserve for the years 1925 and 1926 should be required to be 65 per centum of the earned premiums for each of such years, less the authorized deductions. It is unreasonable to assume that it was intended that the reserve for the years 1923 and prior thereto should be required to be the present value of future payments, that the reserve for 1924 and 1925 be 65 per centum of the earned premiums, less authorized deductions, and that the reserve for 1926 be 65 per centum of the earned premiums, less authorized deductions, or the present value of the determined and estimated claims for that year, whichever may be greater.

I am, therefore, of the opinion that, in computing the reserve for compensation claims under section 313 (d) of the Insurance Department Act of 1921, the reserve for the first year of any three-year period immediately preceding the date as of which any annual statement is made shall be either 65 per centum of the earned premiums of such year, less authorized deductions, or the present value at A per centum interest of determined and estimated unpaid claims arising under policies written during such year, whichever is greater, and the reserve for the second and last years of any such three-year period, being the last and next to last years included in the statement, shall be 65 per centum of the earned premiums of such years, less authorized deductions.

From C. P. Addams, Harrisburg, Pa.


author: Lamoeelle, P. J.,

text:
    Tallman’s Estate.

      Taxation — Inheritance tax — Life estate — Remainder — Executors and administrators — Trusts and trustees — Exemption from tax — Act of June 20, 1919, P. L. 521.

    1. To exempt a legacy from the payment of an. inheritance tax, it must be expressly stated that it is given free of tax, or, in the absence of such expresa statement, the intent must necessarily be implied from the language used.
    2. Where a testator gives money legacies^ estates for life and an estate in remainder, names the same trust company as executor and trustee and directs "that all inheritance taxes upon my estate, both as to life estate and the estate in remainder, shall be paid by my executor in due course," the trust company qua executor must pay the taxes on the money legacies and life estates', and the company qua trustee must pay the tax on the remainder upon the termination of the life estates.
    3. Testator’s mere statement that the executor shall pay the tax, without any directions as to how it shall be ultimately charged, makes applicable the general principle that each legatee must pay his own tax.
    Exceptions to adjudication. O. C. Phila. Co., Oct. Tv 1927, No. 3231.
    Thompson, J., Auditing Judge, gave the following direction as to payment of transfer inheritance taxes:
    “In the payment of transfer inheritance taxes, the tax on the life estate* and the two legacies of $1000 each are the only taxes due at this time, and will be deducted from the respective legacies and the income of the life-tenants. The tax on the estate in remainder will await the falling in of the life estates.”

      W. Y. C. Anderson, for exceptions.

      Walter Willard (Willard, Greenwood & Willard with him), contra.
    Jan. 11, 1928.
   Lamoeelle, P. J.,

Joseph G. Tallman, by the first and second items of his will, gave directions as to the payment of his debts and the interment of his body. By the third item he gave $1000i each unto his sisters, Annie Finelite and Carrie Tallman Schloo. By the fourth item he gave the residue of his estate unto the West Philadelphia Title and Trust Company in trust to divide the net income thereof into ten equal parts, giving four parts to his brother George, three parts to his brother John, two parts to his sister Carrie and one part to his sister Annie. By the fifth item he disposed of the corpas of the trust fund. By the sixth item he provided as follows: “I direct that all inheritance taxes upon my estate, both as to life estate and the estate in remainder, shall be paid by my executor in due course.” Lastly, he appointed the West Philadelphia Title and Trust Company executor and trustee.

No question was raised at the audit of the executor’s account as to payment of tax on the two pecuniary legacies and the four equitable life estates. The Auditing Judge in his adjudication, following the usual course, awarded the equitable life estates and the two legacies of $1000 each, subject to the payment of tax thereon.

Exceptions have been filed to this ruling, and, the Auditing Judge consenting, though the practice is not to be commended, the question now comes before the court in banc.

The main contention of the exceptants is that testator intended to make the transfer inheritance tax an administration expense, and, with this as a premise, it is contended the corpas of the residuary estate is to be ascertained by deducting therefrom not only the tax on the pecuniary legacies, but also the tax on the equitable life estates and the corpas of the trust fund. If, however, tax on the equitable life estates were deducted from the corpas of the trust, to that extent the corpus, of course, would be depleted, and the equitable life-tenants would receive income on a depleted amount. In effect, the equitable life-tenants would pay tax. The contention of the exceptants, however, is that they receive their income clear of tax. Such an anomalous result proves that the argument of exceptants cannot be sound.

Moreover, if testator intended to treat the transfer inheritance tax as an administration expense, one would naturally have expected him to direct the payment of transfer inheritance tax and then to dispose of his estate, but he has done the very reverse. He has disposed of his estate and then directed the payment of the tax.

At this point it may be mentioned that in none of the authorities cited are the facts like the ones in the present case. One must, therefore, decide this case by applying general principles.

The result of the authorities is, that to exempt a legacy from the payment of tax, it must be expressly stated that it is given free of tax, or, in the absence of such express statement, the intent must necessarily be implied from the language used. With this principle in mind, let us consider the language of the sixth item. It is a mere statement that the executor shall pay the tax; there is no direction how it shall be ultimately charged. There being no such direction, the general principle of law that each legatee must pay his own tax is applicable.

Section 16 of the Act of June 20, 1919, P. L. 521, provides that the executor or administrator or other trustee paying any legacy or share in the distribution of any estate of a resident decedent subject to the said tax shall deduct therefrom the tax.

In the present case the same company was appointed executor and trustee, and when testator said the executor should pay, he evidently meant that the West Philadelphia Title and Trust Company, qua executor, will have nothing to do with the payment of tax on the corpus of the residuary estate when the equitable life estates terminate. That duty will devolve upon it as testamentary trustee. When the Auditing Judge ruled that tax on the corpus of the residuary estate must await the falling in of the life estate, he evidently was of opinion that testator’s intention was that the West Philadelphia Title and Trust Company should pay the tax and that testator did not draw any distinction between its duties qua executor and qua, trustee.

The exceptions are accordingly dismissed.

Henderson, J., did not sit.


author: Fox, J.,

text:
    Continental Illustrating Company v. City Transfer Company.

      Costs — Security for — Setting forth defense — Rule of court.

    Under a rule of court permitting a defendant to require a plaintiff to give security for costs in certain cases, on “affidavit showing a just defense against the whole demand,” it is insufficient to aver merely that defendant has a just defense, but it is necessary to set forth the nature and character of such defense.
    Rule for security for costs. C. P. Dauphin Co., Sept. T., 1926, No. 1439.

      Earl V. Compton, for plaintiff; Rosenberg and Rosenberg, for defendant.
    May 15, 1927.
   Fox, J.,

This matter comes before us upon a demurrer to a rule which was granted upon the petition of the defendant to show cause why the plaintiff should not give security for costs before the next term of court.

The substance of the petition for the rule is that the plaintiff instituted suit against the defendant before an alderman in the City of Harrisburg, and that the defendant took an appeal from the judgment rendered against him by the said alderman, which was filed in this court to the above-stated number and term; that the defendant is a resident of the City of Harrisburg; that the plaintiff is a non-resident of Pennsylvania; and that the petitioner has a just defense to the whole demand of the plaintiff.

The demurrer, in its support, sets forth the following reasons:

“1. The act of assembly upon which the defendant’s petition is based is contrary to the Constitution of the Commonwealth of Pennsylvania and of the United States, and is void.
“2. The petition of the defendant does not specify its defense.
“3. The petition of the defendant does not specify that it is not made for the purpose of delay.
“4. The petition of the defendant does not aver that the material witnesses of both parties reside in the county and state in which the plaintiff resides.
“5. The defendant does not show that this is a qui tarn action, a suit on an administration or official bond, or that the plaintiff has taken the benefit of the insolvent laws or been adjudged a bankrupt.”

Rule 73 of this court provides: “In cases where the plaintiff resides out of the State, in qui tarn actions, in suits on administration and official bonds, or when the plaintiff, after suit brought, has taken the benefit of the insolvent laws or been adjudged a bankrupt, the defendant, on motion and affidavit showing a just defense against the whole demand, may have a rule that the plaintiff give security for costs before the next term; and for want of security, the court, on motion, may order judgment of non-suit to be entered.”

We shall take up No. 2 of said reasons.

The pleadings show that the plaintiff resides out of the State and the defendant is now asking that the plaintiff give security for costs. The defendant, in his petition for the rule, in paragraph 5 of his reasons, states: “That the petitioner has a just defense to the whole demand of the plaintiff.” The rule provides that, on motion and affidavit showing a just defense to the whole demand of the plaintiff, a rule may issue. We think the correct construction of this rule is that in any one of the cases enumerated in the rule of court, they being separate and in the disjunctive, the defendant, on motion for the rule, must set forth the character and nature of his defense, showing that it is a just defense to the whole demand, supported by affidavit, before he may have the rule. There is a wide difference between averring and showing a just defense. To aver, as defined by Cyc., volume 4, page 1075, is “to allege or assert; to express the truth of a declaration unequivocally.” To show, as defined by the same authority, volume 36, page 434, is “to exhibit or present to view; to cause to see; to make apparent or clear by evidence, testimony or reasoning; to prove; to give the reason and explanation of; to manifest; to evince; to prove, to manifest, to prove by evidence; to make apparent or clear by evidence.”

Wherefore, we are of the opinion that the defendant has not complied with the said rule of court, in that it has not shown that it has a good defense to the whole of the plaintiffs’ demand, and that, therefore, the demurrer should be sustained and the rule discharged.

And now, May 15, 1927, the demurrer is sustained and the rule is discharged. From Homer L. Kreider, Harrisburg, Pa.


author: Schnader, Special Dep. Att’y-Gen.,

text:
    Registration of Engineers and Land Surveyors.

      Engineers — Land surveyors — Registration—Fees—Act of May 6, 1927.

    1. The State Board for Registration of Professional Engineers must require an applicant to show that he is qualified for registration as provided by the Act of May 6, 1927, P. L. 820, and this is the case whether or not he holds a registration certificate issued by the former board under the unconstitutional Act of May 25, 1921, P. L. 1181.
    2. The applicant is not required to take out a new certificate and pay again the fee of ?20, which he paid for his old certificate. He may, if he prefers1, and is shown to be qualified, be registered and receive as evidence thereof a registration card, upon payment of the nominal fee of one dollar.
    Department of Justice. Opinion to Hon. Richard L. Humphrey, President, State Registration Board of Professional Engineers.
    Sept. 13, 1927.
   Schnader, Special Dep. Att’y-Gen.,

We have your request to be advised with regard to the interpretation to be placed upon that part of section 4 of the Act of May 6, 1927, P. L. 820, which is as follows:

“Provided, further, that the board shall register, upon the payment of the renewal fee provided in this act, and shall issue a registration card for the year 1927, to each person surrendering to it an authentic registration card for 1927 or 1926 issued by the State Board for Registration of Professional Engineers and of Land Surveyors created by the act, approved the twenty-fifth day of May, one thousand nine hundred and twenty-one (Pamphlet Laws eleven hundred and thirty-one), entitled ‘An act to regulate the practice of the profession of engineering and of land surveying; creating a State Board for the Registration of Professional Engineers and Land Surveyors; defining its powers and duties; imposing certain duties upon the Commonwealth and political sub-divisions thereof in connection with public work, and providing penalties,’ which act was declared unconstitutional by the Supreme Court' of the Commonwealth of Pennsylvania.”

We understand that you desire to be advised particularly whether, under the language quoted, your board can register professional engineers and surveyors without requiring them to satisfy you that they are qualified for registration under the Act of 1927.

It is necessary for us, in order to see clearly the legislature’s purpose in inserting this proviso in the Act of 1927, to refer briefly to the history of prior similar legislation in this State.

By the Act of May 25, 1921, P. L. 1131, the legislature required all persons practicing the professions of engineering and of land surveying to register with the State Board for the Registration of Professional Engineers and of Land Surveyors. In order to be registered, it was necessary for applicants to pay to the Commonwealth fees of $20 for registration, either as an engineer or as a land surveyor, or $30 for registration as both an engineer and land surveyor. In the case of Com. v. Humphrey, 288 Pa. 280, the Supreme Court declared the Act of 1921 unconstitutional. The Act of May 6, 1927, was enacted to accomplish the same purpose which the legislature ineffectually evidenced by the Act of 1921. The new act seeks to avoid the constitutional pitfalls encountered by the Act of 1921.

The legislature in 1927 did not appropriate money to refund to those engineers and land surveyors who had registered under the Act of 1921 the fees which they had paid into the State Treasury for their registrations. This fact is important in connection with the interpretation of the language quoted in your inquiry. .

It is our opinion that the language quoted was intended by the legislature merely to relieve those persons who had paid fees into the State Treasury in an amount equal to or greater than the fees required by the Act of 1927 from the necessity of again paying into. the State Treasury fees for obtaining registration under the new act; and, in our opinion, this is the only effect which can be given to the language quoted.

In our opinion, every person registered under the Act of 1927 must satisfy your board that he is qualified for registration. We understand that the old files and records of the State Board for the Registration of Professional Engineers and of Land Surveyors have been turned over to your board. These you may consult in investigating the qualifications of any particular applicant, but you cannot escape the duty in every instance of requiring an applicant for registration, whether he held a registration certificate issued by the former board or not, to satisfy you that he is qualified for registration as provided by the Act of May 6, 1927.

We call your attention to the fact that the language of the Act of 1921 was not the same as the language of the new act. The Act of 1927 specifically requires that, in order to be registered, a professional engineer must satisfy your board that he “is competent to be placed in responsible charge of” engineering work; and a surveyor must satisfy you that he “is competent to be placed in responsible charge of” surveying work. These expressions did not appear in the Act of 1921, and it would, therefore, not be permissible to register any one under the Act of 1927 merely on the presentation of evidence that he was previously registered under the act which the Supreme Court declared to be unconstitutional.

All that the language quoted in your request for an opinion really means is that an applicant for registration may, by paying a fee of $20, receive a certificate of registration from your board, but that if he was previously registered by the old board and had paid a fee for a certificate of registration, he shall not be obliged to take out a certificate of registration and pay the fee for it under the Act of 1927. He may, if he prefers, be registered and receive as evidence of his registration only a registration card upon payment of the nominal fee of $1. The requirements for the issuance of a certificate and for the issuance of a card are in all other respects identical.

From C. P. Addams, Harrisburg, Pa.


author: Stewaet, P. J.,

text:
    Roka v. E. P. Wilbur Trust Company.

      Estate by entireties — Assignment—Promissory note under seal.

      1. Where a savings account had been opened in the defendant bank “in the name of John Roka or Julia Roka, his wife,” it constituted a joint deposit which was held by entireties, and after the husband’s death the amount of the account became the sole property of the wife, and it makes no difference whether the word used in opening the account is “or” or “and.”
    2. During the continuance of the joint account, it was impossible for the husband, without the wife’s joining, to sell or assign his interest in the account so as to affect the wife’s right thereto after his death.
    3. If, after the husband’s death, the wife endorsed a promissory note under seal, containing a warrant to confess judgment at any time, to secure the prior indebtedness of the husband to the bank, the bank cannot recover on the note or charge it to the account. If she endorsed an ordinary promissory note, she cannot set up want of consideration and the bank can recover.
    Rule for judgment for want of a sufficient affidavit of defence. C. P. Northampton Co., April T., 1927, No. 123.

      Booth & Barthold, for plaintiff; Herbert J. Hartzog, for defendant.
    May 9, 1927.
   Stewaet, P. J.,

This is a rule for judgment for want of a sufficient affidavit of defence. It appears from the facts admitted in the pleadings that, on or about Feb. 19, 1919, a savings account, No. 2866, was opened in defendant bank “in the name of John Roka or Julia Roka, his wife.” John Roka died on Sept. 3, 1926. The exact amount of the account on that date cannot be determined from the pleadings. The sixth paragraph of the statement of claim is as follows: “On Jan. 2, 1926, the balance due and owing was $1600; on Aug. 91, 1926, the balance was $1322.69; on Oct. 1, 1926, interest was credited on said account in the sum of $22.83, making the balance on that date $1346.42.” Defendant meets that as follows: “The facts alleged in paragraph 6 of the statement of claim are denied.” Under the authorities, we must assume that the facts set forth in the statement of claim are correct in the absence of a more specific statement in the affidavit of defence, but defendant has set forth facts which are evidently intended to be a more specific denial, although, after reading the pleadings, we have been unable, in our calculations, to determine just what the exact state of the account is. The plaintiff’s position is that this bank account constituted an estate by the entireties, and that, upon the husband’s death, the wife was entitled to the whole of it. The law on the main question is well settled. In Parry’s Estate, 188 Pa. 33, the syllabus is as follows: “An estate by entireties may be created in a chattel, in a chose in action, and one in possession, as well as in realty. It is not abolished as to choses in action by legislation affecting joint tenancy. A letter of credit purchased by a husband with his own money, made payable to himself and his wife, and intended to be used in a journey abroad, creates an estate by entireties, and if the husband dies before the letter of credit is exhausted, the wife is entitled by survivorship to any balance that may be due upon it.” The matter is well summed up by Mr. Justice Walling in Sloan’s Estate, 254 Pa. 346, as follows: “The rule that the title to property held' jointly by husband and wife vests in the survivor applies to personal as well as to real property: Bramberry’s Estate, 156 Pa. 628; Parry’s Estate, 188 Pa. 33; Klenke’s Estate (No. 1), 210 Pa. 572. It is a joint deposit with right of survivorship where the certificates are payable to husband or wife, as well as where payable to husband and wife. In either case, it is held by entireties: Klenke’s Estate (No. 1), supra.” Other authorities illustrating various phases of the matter are: Klenke’s Estate (No. 1), 210 Pa. 572; Meyer’s Estate (No. 1), 232 Pa. 89; O’Malley v. O’Malley, 272 Pa. 528; Rhodes’s Estate, 277 Pa. 450; Leach’s Estate, 282 Pa. 545; Hilt v. Hilt, 50 Pa. Superior Ct. 455; Frederick’s Estate, 54 Pa. Superior Ct. 535; O’Malley v. O’Malley, 78 Pa. Superior Ct. 10. Applying the above authorities, this whole bank account would be plaintiff’s after her husband's death, if there were nothing else in the case. The affidavit of defence, however, sets out that the husband had endorsed two notes, one dated June 27, 1925, for $300, and one dated Aug. 19, 1925, for $350, and that these notes were discounted by the defendant and that they were renewed from time to time. It also sets forth as security for his endorsement the husband had executed two “partial assignments,” which are as follows:

“E. P. Wilbur Trust Company, Bethlehem, Pa.
“Gentlemen: To secure my endorsement on notes of E. F. Bair, for $300, due Sept. 28th, and $350, due Dec. 19th, or any renewals thereof, I hereby transfer and assign unto the Wilbur Trust Company the sum of Six Hundred Fifty Dollars of my savings account No. 2866 in the Peoples Branch of the Wilbur Trust Company, said sum to remain in my account at all times until the notes above mentioned, or any renewals thereof, are fully paid and satisfied. ' Yours very truly,
“(Signed) John Roka
“Witness to signature “John Roka, 86 Juniata St., .
“(Signed) E. F. Baie. Freemansburg, Pa.
“E. P. Wilbur Trust Co., Bethlehem, Pa.
“Gentlemen: For value received, and to secure my endorsement on E. F. Bair note for $600, dated March 26, 1926, due April 27, 1926, or any renewals thereof, I hereby assign and transfer unto the E. P. Wilbur Trust Company the sum of Six Hundred Dollars ($600)', of my Peoples Branch Savings Account No. 2866, as security for the payment of the above-mentioned note, or any renewals thereof.
“In witness whereof, I have hereunto set my hand and seal the twenty-sixth day of March, 1926.
“Witness to signature
“(Signed) John Roka (Seal)
“(Signed) Paul N. Ritter
“(Signed) Geo. E. Hoffman.”

These papers differ in terms. In the first one, although it was an assignment, yet it was stipulated “said sum to remain in my account at all times, !&c.,” which practically destroys its effect, so far as this account is concerned, and in the second one, while there is an assignment as security for the payment of the notes, yet the affidavit of defence admits that the defendant company did not charge against this account either of the sums mentioned. They were intended to be collateral security and they have no legal effect whatever on this account. In Beihl v. Martin, 236 Pa. 519, the syllabus is: “While the estate by entireties continues, it is entirely impossible for either party without the other joining to sell or assign his or her interest therein, even the expectancy of survivorship.” Mr. Justice Stewart, in an elaborate opinion, shows how impossible it was to affect the estate by entireties by any papers like the ones in suit. See, also, Gasner v. Pierce et al., 286 Pa. 529. However, a further proceeding is set out in the affidavit of defence, which, as we understand it, was about as follows: The two notes above referred to had been combined, and a note, dated July 28, 1926, payable Aug. 27, 1926, had been endorsed by John Roka, which was not paid or renewed at maturity. The pleader then averred:

“14. John Roka died Sept. 3, 1926, a few days after maturity of said note. Shortly thereafter, his widow, the plaintiff herein, after a statement to her of the facts, and she being then a jeme sole, endorsed the said E. F. Bair renewal note for $590, dated Aug. 27, 1926, due Sept. 27, 1926.
“15. At maturity, Sept. 27, 1926, the said E. F. Bair note was not paid, and on Sept. 28,1926, the defendant charged the said savings account No. 2866 with the sum of $590 for note No. 48937, executed by E. F. Bair and wife, due Sept. 27, 1926, and endorsed by Julia Roka.
“16. Pursuant thereto, on Sept. 30, 1926, the defendant delivered the said $590-note to the plaintiff, she being lawfully entitled thereto.”

It will be noticed that the endorsement by the widow occurred a number of days after the date of the note and when by law she was the owner of the entire fund, free from any assignments by her husband. It will be further noticed that the form of the note which she endorsed is not given. That note is all-important. In the brief of the learned counsel for the plaintiff, he makes the following statement with reference to the form of the widow’s endorsement: “This was a note under seal dated Aug. 27, 1926, due Sept. 27, 1926, payable to John Roka, signed E. F. Bair (seal) & Mrs. E. F. Bair (seal), with confession of judgment. On the back appears the name Julia Roka, written twice.” If that is a correct statement, there could have been no recovery on such a note if suit had been brought by the defendant against her, and they had no right to charge the note to her account. There was no legal foundation for such payment. In Lincoln Bank of Erie v. Gem City Wholesale Grocery Co. et al., 286 Pa. 421, it was held: “A promissory note containing a warrant to confess judgment at any time is a non-negotiable instrument.” There was a recovery in that case, but it was by reason of the contract endorsed on the back of the note. The same rule is laid down in Miners State Bank v. Auksztokalnis, 283 Pa. 18. If a true copy of the note had been set out in the pleadings, and it is as plaintiff’s counsel stated above, we would make this rule absolute and enter judgment for the plaintiff for the full amount. If, however, she endorsed a plain promissory note, she cannot set up want of consideration, and the defendant had a right to charge her account with this last note. The doctrine of Young’s Estate, 234 Pa. 287, would apply. See, also, Schimmel et al. v. Cohen, 275 Pa. 117. We assume that counsel will accept our view of the law when the facts are agreed on, and we shall make our order with that end in view. We have attached no importance to the sixteenth paragraph, supra, for the reason that it does not aver that the plaintiff accepted the note as having been paid with her consent.

And now, May 9, 1927, in accordance with the seventeenth paragraph of the affidavit of defence, judgment is entered in favor of the plaintiff and against the defendant for $755.42, with interest thereon at 6 per cent, from Oct. 15, 1926 (date of plaintiff’s demand for payment and refusal by defendant), to wit, for the sum of $781.10, and, unless the defendant files a more specific affidavit of defence within fifteen days from this date, the prothono-tary shall mark this rule absolute and enter a further judgment of $590, with interest at 6 per cent, from Oct. 15, 1926.

From Henry D. Maxwell, Easton, Pa.


author: Shull, P. J.,

text:
    Beers et al., Trustees, v. Kemp et al., Monroe County Commissioners.

      Taxation — Exemption—Parsonage of church — Act of May H, I87í.

    Under the Constitution, article ix, § 1, and the Act of May 14, 1874, P. L. 158, a parsonage of a church used as a residence of the minister of the church is not exempt from taxation.
    Appeal from assessment of parsonage of the First Presbyterian Church of Stroudsburg for taxation. C. P. Monroe Co.
    C. B. Bensinger, for appellants; J. B. Williams, for County Commissioners.
    April 4, 1927.
   Shull, P. J.,

In considering this matter, we are first confronted by article ix, section 1, of the Constitution of Pennsylvania, as follows : “All taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws; but the general assembly may, by general laws, exempt from taxation public property used for public purposes, actual places of religious worship, places of burial not used or held for private or corporate profit and institutions of purely public charity.”

In carrying this section of the Constitution into effect, the legislature has, from time to time, passed acts of assembly, the first of which is the Act of May 14, 1874, P. L. 158: “That all churches, meeting-houses or other regular places of stated worship, with the grounds thereto annexed necessary for the occupancy and enjoyment of the same; all burial-grounds not used or held for private or corporate profit, all hospitals, universities, colleges, seminaries, academies, associations and institutions of learning, benevolence or charity, with the grounds thereto annexed and necessary for the occupancy and enjoyment of the same, found, endowed and maintained by public or private charity; together with public school-houses, court-houses, jails, etc. . . . are hereby exempt from all and every county, city, borough, road and school tax.”

It will be observed that in this statute appear the words “churches, meetinghouses and other places of stated worship,” while in the Constitution the words specifying what may, by act of assembly, be exempted from taxation are “actual places of religious worship.” Manifestly, this relates and can relate only to the building or ground in or on which persons meet regularly for the purpose of religious worship. The term “church” ás used in this statute may not be applied to the church as an institution, but must be applied to the building actually and regularly used1 for religious worship, and this is equally true of the words “meeting-house or other places of religious worship.”

Again, referring to the section of the Constitution above quoted, we find, in this reference to what may be exempted, the following, to wit, “institutions of purely public charity.” Here there is not reference to property, either real or personal, but to “institutions,” and this term is a comprehensive one, for an institution may require for carrying out its purpose real and personal property, and such, property, if it be an institution of purely public charity, whether it be religious, educational or of other character, may be exempted from taxation by act of assembly.

The courts of this Commonwealth have repeatedly held that property of such institutions, though not physically annexed to what might be termed the main or central building or grounds of the institution, if used for the purpose of the institution, may be exempted from taxation. Therefore, the question of physical annexation does not control.

Counsel for appellants cites many cases touching charitable institutions, but, by reason of the constitutional provisions, a different situation presents itself in considering such institutions and in determining the question now before the court.

The trustees of the First Presbyterian Church have appealed from the assessment of the Presbyterian parsonage. The parsonage is not a part of the church building, nor is it on the same tract or lot of land; it is not contended that the parsonage is of itself an actual place of religious worship, but it is admitted that it is used and occupied by the minister of the church as a residence, but it is contended that it is necessary to the occupancy and enjoyment of the church.

We readily see the force of this argument, for the parsonage is a part of the church as an institution, and as such is perhaps annexed to it. If the Constitution of Pennsylvania authorized the exemption of property of churches as institutions, then unquestionably would a parsonage be exempted as a part of the property of such institution, as in the case of Northampton County v. Lafayette College, 128 Pa. 132; Woman’s Home Missionary Society v. City of Philadelphia, 173 Pa. 465; Episcopal Academy v. Philadelphia, 150 Pa. 565; Pennsylvania Hospital v. Delaware County, 169 Pa. 305. But all of these came within the class of institutions which, under the Constitution, may be exempted, while the case at bar, as we have stated, comes within an entirely different class, and, consequently, is subject to a different rule.

The distinction clearly appears in the Act of 1874, where, as relates to churches and meeting-houses, they are coupled with “all other regular places of stated worship,” while, on the other hand, as it relates to hospitals, universities, etc., there is no reference whatever to the place used by them, but, as we have stated, they are classified as institutions of purely public charity.

From time to time, the legislature has, by amendment, to wit, the Acts of May 29, 1901, P. L. 319, March 24, 1909, P. L. 54, June 13, 1911, P. L. 898, July 17, 1919, P. L. 1021, April 9, 1921, P. L. 119, June 29, 1923, P. L. 928, and March 17, 1925, P. L. 39, extended the provisions of the Act of 1874 as to institutions. It is not, however, to any extent so amended as to places of religious worship, nor can it be, under our Constitution, amended as relates to property of churches so that property other than actual places of religious worship be exempt.

While many cases are cited, a large majority of which relate to institutions of public charity, not one case is cited by counsel for appellants, except the case of Northampton County v. St. Peter’s Church, 5 Pa. C. C. Reps. 416, in which case a part of the church building itself was occupied as a parsonage. In this case, an attempt was made to tax that part of the church building which was held to be exempt. On the other hand, we have before us the case of Reformed Church of Harrisburg v. Dauphin County, 25 Pa. C. C. Reps. 570, where the court held: “A parsonage, though annexed to the church edifice, is not a place of stated worship within the meaning of the law. The test of immunity from taxation is not physical annexation, but exclusive use for religious worship.”

In this opinion, the learned judge cites the case of Philadelphia v. Barber, 160 Pa. 127, where the Supreme Court, in an opinion by Justice Mitchell, held that the actual use means the exclusive use, and a mere concurrent or alternate occupation by the church does not come within the requirements for exemption.

For the reasons above set forth, we are compelled to conclude, as a matter of law, that the parsonage is not exempt from taxation, and as this appeal does not go to the amount of the assessment, but to the question of whether or not the parsonage is exempt, there is nothing further for us to consider.

The appeal is dismissed, at the cost of appellants.

Prom C. C. Shull, Stroudsburg, Pa.


author: Koch, J.,

text:
    Commonwealth ex rel. Huntzinger v. Graft et al.

      Criminal law — Fornication and bastardy — Bond—Recognizance—Amendment — Cause of action.

    T. Where a defendant has pleaded guilty to fornication and bastardy, and, after an order of support has been entered against him and bond entered in compliance with the Act of March 31, 1860, P. L. 393, he flees' the jurisdiction, the remedy of the prosecutrix is not by a scire facias sur recognizance ex rel. the Commonwealtn, but by an action on the bond given to secure the directors of the poor.
    2. In such case, a proceeding instituted by scire facias sur recognizance cannot be amended, as an amendment would change the cause of action.
    Demurrer to scire facias sur recognizance. C. P. Schuylkill Co., Jan. T., 1926, No. 654.
    April 7, 1927.
   Koch, J.,

Erma M. Huntzinger, at whose instance this suit was brought, prosecuted George Graft, charging him with fornication and bastardy. The case was returned to No. 433 of May Sessions, 1924. After indictment, Graft entered a plea of guilty and was sentenced June 17, 1924, to pay a fine of $1, the costs of prosecution; to the mother of the bastard child the sum of $25 for lying-in expenses and $3 per week until the child arrives at the age of fourteen years, and to give bond with surety in the sum of $500, conditioned for his compliance with the sentence. Graft gave a bond, with Joseph Hahner as surety, in the sum of $500 to the Directors of the Poor and of the House of Employment in and for the County of Schuylkill. The condition of the obligation is: “That if the said George Graft shall and does well and truly, from time to time, and at all times hereafter, sufficiently save, defend and keep harmless, and indemnify the Directors of the Poor and of the House of Employment in and for the County of Schuylkill, of and from all expenses, costs, charges and damages whatsoever, which shall or may hereafter accrue, for or by reason of the birth of said child, and shall further comply with the sentence and order of the said court in the said case made, then this obligation shall be void.” Graft has left the jurisdiction of this court, has failed to make the payment of $3 a week and is now in arrears to the amount of several hundred dollars. On Dec. 7, 1925, Miss Huntzinger’s counsel obtained an order of the Court of Quarter Sessions that the bond be estreated and certified to the Court of Common Pleas. That being done, her counsel filed his prsecipe, making the Commonwealth of Pennsylvania ex rel. Erma M. Huntzinger plaintiff and George Graft and Joseph Hahner defendants, and directing a scire facias sur recognizance to issue. Only Joseph Hahner was served with the writ, and he filed a demurrer upon the grounds substantially:

(a) That the bond was not given to the Commonwealth of Pennsylvania, and that the relator has no interest in said bond and cannot be read into it as a party to sue thereon.

(b) That the directors of the poor are not parties to this case.

(o) That it is not shown that the Directors of the Poor and of the House of Employment in and for the County of Schuylkill have suffered any actual loss or damage by reason of the failure of George Graft to make payment as required by his sentence, or that the child has become a charge upon the directors of the poor and of the house of employment, or that any expenses, costs, charges or damages whatsoever have been suffered by it or are chargeable to the directors of the poor.

The defendant could have assigned one more cause of demurrer, to wit, that to collect the penalty in the bond referred to, a scire facias sur recognizance is not the proper remedy. The relator’s counsel has confused recognizance and bond. When Graft was prosecuted, he was obliged to enter bail for his appearance in court or go to jail. The entry of that bail was his recognizance and was entered into before the committing magistrate. If he had escaped and his recognizance had been forfeited, a proceeding by scire facias sur recognizance would have been the remedy to collect from the surety the amount of the bail. But after plea and sentence, the recognizance could not be forfeited. By his sentence, Graft passed into the custody of the sheriff, and the sheriff could only let him go upon payment of the fine, the costs and lying-in expenses and giving to the directors of the poor a bond as required by section 37 of the Act of March 31, 1860, P. L. 393. A part of Graft’s sentence was to give security by one or more sureties in the sum of $500 to the directors of the poor to perform the court’s order for the maintenance of the child. Upon paying the fine, the costs and the lying-in expenses and giving the bond, the sheriff released Graft from custody, and the bond became the property of the directors of the poor and should have passed into their custody. It is the practice of the clerk of the court, after noting on the docket that such bond has been entered into, to deliver the bond to the directors of the poor. The prsecipe in this case says: “Issue scire facias sur recognizance in the above stated case, returnable according to law.” There is attached to the praecipe the plaintiff’s statement, signed by counsel and beginning thus: “The plaintiff brings this writ of scire facias sur recognizance against said defendant on a bond executed in the sum of $500, a true and correct copy of which recognizance is hereto attached and made a part hereof,” etc. The copy of the bond which is referred to in said statement is a copy of the bond given by Graft to the directors of the poor in accordance with his sentence. If Miss Huntzinger seeks to recover from the surety the penalty mentioned in the bond, she is obliged to bring an action on the bond for the penalty. But she could not bring it in the name of the Commonwealth, because the bond is not in the name of the Commonwealth, whereas a recognizance for an appearance to answer a criminal charge is always in the name of the Commonwealth.

It may be profitable for counsel to have us discuss this matter further, but, as we are not conducting a law school, we will not say more about a proper modus operandi. There is no way provided for amending these proceedings, because such amending would change the cause of action. We will, therefore, treat the demurrer as sufficient to dispose of this case.

The demurrer is sustained and judgment is entered against the plaintiff.

From M. M. Burke, Shenandoah, Pa.


author: Alessandroni, J.,

text:
    Spector v. Bonwit Teller & Company.

      Landlord and tenant — Termination of lease — New lease — Ambiguous contract.

    1. Where a tenant in possession of premises under a lease terminating on Jan. 31, 1928, executes a new short-term lease for the premises, which provides that the lessee shall not be entitled to remain in possession of the premises after Jan. 31, 1928, unless he shall notify the lessor not later than Oct. 31, 1927, that a certain building which he is erecting for occupancy will not be completed on Feb. 1, 1928, and the lessee serves notice Nov. 29, 1927, that the building will not be completed March 1, 1928, the lessor will be entitled to possession on Jan. 81, 1928, as the new lease never came into effect, and this is so although the new lease contains a provision that it shall in no event extend beyond April 30, 1928, and that it expires absolutely and without notice on that day.
    2. The lessee cannot, in such case, contend that without any notice whatever the lease was to terminate on April 30th, and that notice was only necessary if he desired to end it on an earlier date when his new building was completed. Without the notice specified, the new lease never went into effect.
    3. Where the language of a contract is susceptible of more than one construction, it should be construed in the light of the circumstances surrounding it at the time it was made; and it is the duty of the court to place itself, as nearly as may be, in the situation of the parties at the time, so as to view the circumstances as they viewed them.
    Petition for a declaratory judgment under Act of June 18, 1923, P. L. 840. C. P. No. 5, Phila. Co., Dec. T., 1927, No. 3839.

      Sundheim, Foie & Sundheim, for respondent.

      Wolf, Block, Schorr & Solis-Cohen, for petitioner.
    Jan. 27, 1928.
   Alessandroni, J.,

This is a proceeding to determine the rights of the respective parties to a lease under the Uniform Declaratory Judgments Act.

Maurice Spector, the petitioner, is the owner of premises situate at the southwest corner Thirteenth and Chestnut Streets, Philadelphia, now occupied by Bonwit Teller & Company under and by virtue of a lease beginning Feb. 1, 1923. Bonwit Teller & Company has for a number of years conducted a dry goods and ladies’ wear business on a large scale at the southwest corner Thirteenth and Chestnut Streets. Maurice Spector, who was engaged in the same kind of business on Chestnut Street, between Thirteenth and Broad Streets, purchased in the spring of 1927 the building occupied by the respondent, which attorned to him, remaining in possession as the tenant of Maurice Spector under and by virtue of a lease beginning Feb. 1, 1923, and terminating Jan. 31, 1928. Meanwhile, the respondent, anticipating the termination of this lease on Jan. 31, 1928, arranged for the erection of a new home for its business at the southwest corner Seventeenth and Chestnut Streets, Philadelphia. The petitioner made manifest his intention to occupy the premises southwest corner Thirteenth and Chestnut Streets immediately at the expiration of the lease on Jan. 31, 1928. The respondent was willing to surrender possession at that time. There was, however, an element of uncertainty as to the date of completion of the new Bonwit Teller & Company Building at Seventeenth and Chestnut Streets. Both parties recognizing the necessity of some adequate provision to safeguard the interests of each other, in view of this uncertainty and manifesting a commendable spirit of reciprocal regard for each other’s interests, on May 21, 1927, entered into a short-term lease, which by its terms was not to extend beyond April 30, 1928.

The petitioner has requested the court to say whether or not, under the terms of that lease, the respondent is entitled to remain in possession after Jan. 31, 1928. The petitioner contends that, under the plain language of paragraph 39 of the said lease, the respondent should surrender possession on Jan. 31, 1928. The respondent contends that it is entitled to remain in possession beyond that date; indeed, until April 30, 1928, at its option.

Paragraph 39 reads as follows:

“39. It is understood and agreed that this lease shall (anything herein contained to the contrary notwithstanding, and any law, usage or custom to the contrary notwithstanding) terminate at twelve o’clock noon March 31, 1928, unless prior to December 31, 1927, lessee shall serve upon the lessor in writing a notice stating that the building now being constructed for the lessee at Seventeenth and Chestnut Streets, Philadelphia, will not be ready for total occupancy by the lessee on the first day of April, 1928; and it is further agreed that this lease shall likewise terminate at noon on the 29th day of February, 1928, unless lessee shall serve upon the lessor a like notice in writing not later than November 30, 1927, that said building at Seventeenth and Chestnut Streets, Philadelphia, will not be ready for total occupancy on the first day of March, 1928; and it is further agreed that the lessee shall not be entitled to remain in possession of the premises herein demised after January 31, 1928, unless the lessee shall deliver a like notice in writing to the lessor not later than October 31, 1927, that the said building at Seventeenth and Chestnut Streets, Philadelphia, will not be ready for total occupancy by the lessee on the first day of February, 1928.”

The respondent urges that paragraph 38 of the lease should be read in conjunction with paragraph 39. Paragraph 38 provides:

“38. It is understood and agreed that this lease shall in no event extend beyond April 30, 1928; it is further understood and agreed that notwithstanding any law, usage or custom to the contrary, this lease expires absolutely and without notice on the 30th day of April, 1928, and any holding over after said date by lessee shall constitute it a trespasser upon said premises.”

It is the contention of the respondent that this lease was to terminate on April 30, 1928, and that it should have the option of terminating it at an earlier date if the new building should be ready for total occupancy at the end of any prior month, and, accordingly, paragraph 39 of the lease provides that, despite any other provision in the lease, the tenancy should be determined by the lessee, at its option, at the end of any month within the ninety-day term, provided lessee gave to the lessor a written notice; that without any notice whatsoever from the respondent, the lease should expire on April 30, 1928; and under paragraph 39, upon lessee giving a certain notice at certain specified times, the lease should end at certain specified earlier dates, or should not come into existence at all if notice was given early enough.

Another contention of the respondent is that the language of paragraph 39 is ambiguous and unintelligible, and not reflective of the intention of the parties at the time of the execution of the lease.

Pursuant to this view, the respondent did not send a notice to the petitioner on or before Oct. 31, 1927, to the effect that the said building at Seventeenth and Chestnut Streets, Philadelphia, would not be ready for total occupancy by the lessee on the 1st day of February, 1928. The only notice sent by the respondent to the petitioner was that of Nov. 29, 1927, to the effect that the building under construction at Seventeenth and Chestnut Streets, Philadelphia, would not be ready for total occupancy by it on the 1st day of March, 1928, etc. This notice followed a letter dated Nov. 18, 1927, by Maurice Spector to Bonwit Teller & Company, advising the respondent that he, Maurice Spector, would expect delivery of possession of the premises on Jan. 31, 1928, in view of the failure of the respondent to serve notice upon the petitioner on or before Oct. 31, 1927, that the premises southwest corner Seventeenth and Chestnut Streets would not be ready for occupancy on Feb. 1, 1928.

We are, therefore, to consider whether or not clauses 38 and 39 of this lease clearly evince the intention of the parties without recourse to matters not appearing therein outside of the lease itself. We are of opinion that they do. Whatever may be said of the grammatical form of paragraph 39 — and it may leave something to be desired in that regard — it is, nevertheless, susceptible of no other interpretation than that the lessee was bound to give notice to the lessor not later than Oct. 31, 1927, that the new building would not be ready for total occupancy by the lessee on the 1st day of February, 1928. This was not done. Upon the performance of this condition depended the right of the lessee to remain in possession after Feb. 1, 1928, as well as the exercise of the privilege of remaining for the two succeeding periods provided for the accommodation of the lessee. An ordinary perusal of this paragraph will show that its terms were arranged for the mutual benefit of the parties. The petitioner, on the one hand, wanted possession on Jan. 31, 1928, and wanted no delay after that date if the respondent was ready to go into its new building on Feb. 1, 1928. The respondent, on the other hand, provided for its release from payment of rent and heavy carrying charges as soon as it was evident to it that its new building would be ready for occupancy at any time before April 30, 1928. The knowledge of the anticipated readiness of the new building for occupancy lay exclusively in the mind of the respondent, and, to that degree, the petitioner was dependent upon the respondent for that valuable information. Paragraph 38 is not in anywise inconsistent, repugnant or contradictory of the provisions of paragraph 39. It is a definite expression of the intention of both parties that this lease should not extend beyond April 30, 1928.

The respondent has cited a number of authorities which we find not inconsistent with the principle of law covering the construction of these two paragraphs.

It is well established that where the language of a contract is susceptible of more than one construction, it should be construed in the light of the circumstances surrounding it at the time it is made; and that it is the duty of the court to place itself, as nearly as may be, in the situation of the parties at the time, so as to view the circumstances as they viewed them.

We cannot agree with the respondent that the language of the paragraphs in question is susceptible of more than one construction, or that the intention of the parties is not clearly disclosed.

The Supreme Court, in the case of Gianni v. Russell & Co., Inc., 281 Pa. 320, reiterating its pronouncement in Martin v. Berens, 67 Pa. 459, 463; Irvin v. Irvin, 142 Pa. 271, 287, stated:

“ ‘Where parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only, evidence of their agreement.’
“In cases of this kind, where the cause of action rests entirely on an alleged oral understanding concerning a subject which is dealt with in a written contract, it is presumed that the writing was intended to set forth the entire agreement as to that particular subject. ‘In deciding upon this intent, the chief and most satisfactory index ... is found in the circumstances whether or not the particular element of the alleged extrinsic negotiation is dealt with at all in the writing. If it is mentioned, covered or dealt with in the writing, then presumably the writing was meant to represent all of the transaction on that element; if it is not, then probably the writing was not intended to embody that element of the negotiation:’ 5 Wigmore on Evidence (2nd ed.), 309.”

And now, to wit, Jan. 27, 1928—

(a) The court construes the disputed clauses of the lease in question to mean that the term intended to be created by the agreement of May 21, 1927, did not come into effect or being, and that it is the duty of the respondent to vacate and deliver up possession of the premises southwest corner Thirteenth and Chestnut Streets, Philadelphia, now occupied by it under the subsisting lease as of Jan. 31, 1928.

(b) A declaratory judgment or decree is hereby entered declaring the petitioner to be entitled to undisputed possession of the said premises after Jan. 31, 1928.

(c) It is ordered that the respondent pay the costs.


author: Taulane, J.,

text:
    Walker v. Provident Trust Company of Philadelphia et al.

      Resulting trust — Purchase money furnished by one person, payment made by another — The prrindple that passing of title and date of payment must be contemporaneous.

    1. Where decedent employed an attorney to collect a debt due his daughter from her husband, who was living apart from her and from whom she had been estranged, and entered into an agreement to purchase a home for her and her children, paying the down-money thereon from his own funds, believing that the debt had been, or would be shortly, collected by the attorney, and a few days thereafter received the debt from the attorney and used'the money to meet subsequent payments, taking title to the property in his own name, under the advice of counsel, so as to relieve her from the necessity of having her husband join in the deed in case she resold the property, advancing from his own funds such further money as was necessary to complete the purchase, a resulting trust arose for the benefit of the daughter, enforcible against the decedent’s executors, subject, however, to the repayment by her of the money so advanced from his own funds and interest thereon.
    2. The principle that a resulting trust can only arise where the purchase money is furnished or paid at or before the time the title to the property passes as a part of the original transaction of purchase, does not apply to such a case.
    Adjudication. C. P. No. 1, Phila. Co., March T., 1924, No. 10087, in Equity.

      H. Horace Dawson, for plaintiff.

      J. Charles Murtagh and Arthur Littleton, for defendants.
    Oct. 21, 1927.
   Taulane, J.,

This case came on for hearing before the late President Judge Bartlett on June 8, 1927, but he died before he had an opportunity to prepare an adjudication.

Counsel for all parties have agreed that Taulane, J., may dispose of the matter with the same force and effect as if the testimony had been taken before him.

H. Horace Dawson, Esq., appeared for the plaintiff, and J. Charles Mur-tagh, Esq., and Arthur Littleton, Esq., for the defendants.

The bill alleges that the late William J. McMullin during his lifetime purchased a property at Ventnor, New Jersey, for his daughter, the plaintiff, using her funds to pay for it, but took title thereto in his own name to protect her, as she was then in litigation with her husband, and prayed that the trustees and devisees under his will he ordered to convey the legal title of said property to the plaintiff.

From the pleadings and proofs, the court make the following findings of fact and conclusions of law:

Findings of fact.

1. Since the filing of the bill, the plaintiff has remarried, and is now known as Mabelle P. Yarrow.

2. The full name of Marion Reineke, one of the defendants, is Marion Reineke Bretherton.

3. Sophie Jane Reineke, one of the defendants, and described as a minor, is now of age.

4. In February, 1921, and prior thereto, the plaintiff had marital difficulties with her then husband, H. Leslie Walker. She separated from her husband in February, 1921.

5. At the time of the separation, the plaintiff’s husband owed her $10,000, which she had borrowed on a mortgage on her house at Rosemont, Penna., and loaned him.

6. Immediately upon the separation, the plaintiff, through her father, the late William J. MeMullin, retained John R. K. Scott, Esq., to collect the $10,000 and represent her in her marital troubles with her husband.

7. Some time prior to March 31, 1927, the exact date does not appear, Mr. Scott succeeded in collecting from the plaintiff’s husband the $10,000 due her, with interest, aggregating $10,477.17.

8. On March 31, 1921, Mr. Scott paid the plaintiff the amount so collected by handing to William J. MeMullin, plaintiff’s father, his several checks aggregating $10,477.17, drawn to the order of William J. MeMullin, attorney in fact for Mabel P. Walker, which cheeks William J. MeMullin endorsed and deposited to his credit in his bank account with the Provident Life and Trust Company.

9. At the time of the separation, the plaintiff and her three children were living in a cottage on Amherst Avenue, Atlantic City, owned by her husband. Her husband notified her to vacate the cottage.

10. Plaintiff’s father then purchased for her a cottage situate at the southwest corner of Ventnor and Vassar Avenues, Ventnor, New Jersey, by entering into an agreement of purchase in his own name, dated March 24, 1921, whereby he agreed to pay $17,500 for the cottage, to be settled for within thirty days, and to be paid for as follows: $1000 upon the execution of the agreement, $2000 on or before April 19, 1921, $5000 in a first mortgage then thereon and to remain, and the balance of $9500 in cash.

11. William J. MeMullin apparently paid out of his own funds the deposit of $1000 made on the execution of the agreement.

12. Mr. MeMullin was represented in the purchase of the property and the preparation of the deed by John O’Neill, of Atlantic City.

13. Mr. MeMullin informed Mr. O’Neill that he was buying the property for his daughter, and Mr. O’Neill advised Mr. MeMullin that title should not be taken in the daughter’s name on account of the trouble she was having with her husband, which might prevent her from selling, as her husband would have to join in the deed.

14. Mr. MeMullin stated to Mr. O’Neill that he would consult his lawyer.

15. Thereafter and before the deed was made and practically about the time Mr. Scott gave the money to Mr. MeMullin, Mr. MeMullin told Mr. Scott that he was buying a property at Ventnor for his daughter and inquired whether the deed should he in the name of a third person instead of his daughter. Mr. Scott advised him to put the property in his own name and not in his daughter’s name, as the daughter might have difficulty in selling if the title was in her name, due to her differences with her husband.

16. Mr. MeMullin made the second payment of $2000 on account on April 6, 1921, and the final payment of $9482.01 on April 23, 1921, when settlement was made and the deed taken in the name of Mr. MeMullin.

17. Neither Mr. MeMullin nor his estate has ever repaid to the plaintiff the said sum of $10,477.17 which Mr. MeMullin received from Mr. Scott as plaintiff’s attorney in fact.

18. From the time of the purchase in 1921 to the present time, the plaintiff has been in exclusive control and possession of the property, has paid all interest on the mortgage, taxes, water rent and repairs. She resided in it until 1924, since when she has rented it and collected the rents.

19. Mr. MeMullin, in 1922, consulted Mr. Benjamin F. Jones, of the Provident Life and Trust Company, about a codicil to his will. He explained to Mr. Jones that he had bought the property at Ventnor for his daughter Mabel; that his daughter’s money had paid for it, and that he had taken the title in his own name to protect his daughter against any interference of her husband, from whom she was separated, and requested Mr. Jones to prepare a codicil to his will to the effect that, upon his death, the Ventnor property should go to his daughter Mabel free and clear of all inheritance taxes. Mr. Jones prepared the codicil, but it was never signed.

20. Mr. MeMullin died on March 26, 1923. On the day he died, Mr. Jones was requested to call and bring with him the codicil for Mr. MeMullin’s signature. Mr. Jones called to see Mr. MeMullin with the codicil, but Mr. MeMullin refused to sign it, stating that he would go to Mr. Jones’s office in a few days to sign it. At the time, Mr. MeMullin did not realize his condition, for he died within fifteen or twenty minutes thereafter.

21. Mr. MeMullin repeatedly told divers persons that the property at Vassar and Ventnor Avenues, Ventnor, belonged to his daughter Mabel; that her money went into its purchase, and that he had the title put in his own name for her protection against her husband.

22. Mr. MeMullin used the sum of $10,477.17, being the amount of plaintiff’s money received by him from Mr. Scott, in the purchase of the Ventnor property.

23. Mr. MeMullin, in purchasing the Ventnor property, acted as plaintiff’s agent.

24. Mr. MeMullin advanced or loaned to the plaintiff, to complete the purchase, $2004.84, representing the difference between $12,482.01, the amount in cash paid for the property, subject to a $6000 mortgage then thereon, and $10,477.17, the amount of plaintiff’s money in Mr. MeMullin’s hands.

25. Mr. MeMullin had no interest in the property, and the title was in his name solely for the plaintiff’s protection.

26. Neither Mr. MeMullin in his lifetime nor his estate since his death have ever claimed or asserted any interest in the property or exercised any acts of ownership over it, neither he nor his estate has ever received any of the rent when it was rented, nor did he or his estate ever pay the interest on the mortgage, the taxes, water rent or repairs.

27. Mr. MeMullin’s net estate exceeded $300,000.

28. Mr. MeMullin entered into the agreement to purchase the property at Ventnor for the plaintiff in view of and reliance on the money Mr. Scott was retained to collect and did collect for the plaintiff from her husband.

29. The $2004.84 which Mr. McMullin advanced out of his own funds toward the purchase of the property was a loan or advance to the plaintiff which has never been repaid.

Discussion.

The plaintiff does not claim ownership of the Ventnor property by gift from her father, for if she did her claim would fall because she has'not shown facts sufficient to sustain a parol gift of real estate from parent to child: Caldwell v. Caldwell, 24 Pa. Superior Ct. 230; Brewer v. Lohr, 35 Pa. Superior Ct. 461; Young v. Glendenning, 6 Watts, 509; Wack v. Sorber, 2 Wharton, 387; Dorr v. Leippe, 286 Pa. 17, and Moore v. Small, 19 Pa. 461.

On the contrary, she alleges her father used her money to purchase the property and took title in his own name to protect her against her husband, which facts, she claims, raise a resulting trust in her favor. Where one person pays the purchase money of real estate and the title is taken in the name of another, a resulting trust arises, in the absence of evidence to the contrary, in favor of the person paying the purchase money: Bispham’s Equity (10th ed.), 146.

The evidence convinces us that plaintiff’s father used the money he received as her agent from Mr. Scott in the purchase of the Ventnor property. The defendants do not seriously controvert this, but contend that, as her father entered into the agreement of purchase before he received the money from Mr. Scott, the plaintiff’s money was not contributed or used at the time of the inception of her father’s title.

It is true a resulting trust can only arise where the purchase money is furnished or paid at or before the time the title to the property passes as a part of the original transaction of purchase: Cross’s Appeal, 97 Pa. 471; Barnet v. Dougherty, 32 Pa. 371, and Beringer v. Lutz, 179 Pa. 1.

And in some case's the inception of title may be the equitable title acquired by a purchaser under his agreement of purchase prior to settlement and delivery of deed. See Musselman v. Myers, 240 Pa. 5, 8.

The rule invoked by the defendants has no application to the facts of this case. Plaintiff’s father was her agent or representative. She left it to him to engage Mr. Scott to collect the money due her from her husband, and when it was collected, Mr. Scott paid it to her father as her agent, and not to her. While it was on March 31, 1921, when Mr. Scott paid the plaintiff’s money to her father, it is likely Mr. Scott received it some days before and probably informed plaintiff’s father of its collection. However this may be, plaintiff’s father was her agent in purchasing the Ventnor property; he purchased it not for himself, but for her. There is nothing to justify the notion that the plaintiff’s father made the initial deposit to secure for himself an interest in the property. He made it on behalf of the plaintiff. The agreement of sale is dated March 24,1921, and the money was received by plaintiff’s father from Mr. Scott on March 31, 1921. We have no doubt plaintiff’s father entered into the agreement knowing that the plaintiff’s money would be shortly forthcoming from Mr. Scott and intended at the time to use, as he did use, the money in making the purchase. At the time the second and third or final payments were made and the deed delivered, plaintiff’s father had in his possession her money.

If plaintiff’s money was used in the purchase, and we have found it was, it was used at the inception of plaintiff’s father’s legal title. The use of her money was part of the original transaction of purchase.

The case at bar in this respect is quite like the case of McLaughlin v. Fulton, 104 Pa. 161.

Plaintiff’s father apparently contributed out of his own funds some $2000 towards the purchase, because the plaintiff makes no claim of any contribution beyond what was received from Mr. Scott. Her father has never been repaid. Ordinarily, the resulting trust in favor of the plaintiff would be limited to her contribution to the purchase money, unless the evidence shows that the contribution made by her father was an advance or loan to her. Her father took upon himself to buy the property for her, and in doing so acted as her agent. He had no thought of buying the property for himself, and originally had no idea of putting the title in his own name. He had enough foresight to know that the title should not be in his daughter’s name, due to her unfortunate differences with her husband. At first, he intended to put the title in the name of the Provident Trust Company or some third person until he consulted Mr. Scott, who advised him it would be better to put the title in his own name rather than a trust company or third person.

Title was put in his name, not to have an interest in the property, but to protect his daughter.

The law is clear that a resulting trust does not arise in favor of an agent authorized to purchase a property who pays part of the purchase money with his own funds. Such a payment is a loan or advance to the principal, and such a contribution to the purchase money does not create a resulting trust: Schrager v. Cool, 221 Pa. 622, 626.

We are clear the plaintiff’s father had no interest in the property, but the plaintiff is indebted to him for his advance, as there is no evidence or suggestion that he made a gift of it to the plaintiff.

Conclusions of law.

1. The plaintiff is the absolute owner of premises situate at the southwest corner of Ventnor and Vassar Avenues, Ventnor, New Jersey.

2. William J. McMullin had no title or interest in said premises, the legal title being put in his name solely and exclusively to protect the plaintiff against her husband, from whom at the time she was separated and with whom she had marital differences.

3. William J. McMullin advanced to the plaintiff $2004.84 to complete the purchase of the property.

4. The plaintiff is indebted to the estate of William J. McMullin for said sum of $2,004.84, with interest.

Decree.

And now, to wit, Oct. 21, 1927, upon consideration of the foregoing ease, it is ordered, adjudged and decreed as follows:

1. The defendants be and hereby are ordered and directed to grant and convey to the plaintiff the legal title to said premises situate at the southwest corner of Ventnor and Vassar Avenues, Ventnor, New Jersey, more particularly described in the bill, under and subject only to the present mortgage of $6000 thereon.

2. The plaintiff pay to the executors of the will of the said William J. McMullin the sum of $2004.84, with interest at the rate of 6 per cent, per annum from April 23, 1921, and plaintiff shall not be entitled to a conveyance of the legal title of said premises unless and until she pays said sum, with interest, to said executors.

3. Each party shall pay her and their own costs.

The parties have presented requests for findings of fact and conclusions of law, which are filed herewith with the answers thereto.

And now, to wit, Oct. 21, 1927, the prothonotary is directed to enter the above decree nisi, and to notify the parties in interest of the filing of this adjudication, and that, unless exceptions are filed thereto within ten days, the above decree will be entered as a final decree.


author: Van Dusen, J.,

text:
    Seidel’s Estate.

      Will — Construction—S^lrvivorsMp—Brothers and sisters — Res judicata.

    1. Where a testator gave part of his estate in trust for a brother for life, “ana not to any issue of his after his decease, then to revert hack to my estate and he divided amongst my surviving brothers and sisters under the same terms as mentioned in this my will,” brothers and sisters who die before the life-tenant, but survive the testator, take absolute vested interests.
    2. In such case, the word “then” is probably used as a conjunction, equivalent to “in that event,” and if it is an adverb of time, it is joined to the verb “revert," and not to the adjective “surviving.”
    3. The word “surviving” as used by testator means “other,” and is to be referred to his own death.

      4. The award of one fund is not conclusive as to the law in the distribution of another fund, though both are controlled by the same clause of the same will.
    Exceptions to adjudication. O. C. Phila. Co., Oct. T., 1923, No. 3575.

      D. J. Dolan, for exceptions.

      Humbert B. Powell (of Powell, Ludlow & Schaeffer) and Clinton A. Sowers, contra.
    Dec. 9, 1927.
   Van Dusen, J.,

Testator gave part of his estate in trust for his brother Theodore for life “and not to any issue of his, after his decease then to revert back to my estate and be divided amongst my surviving brothers and sisters under same terms as mentioned in this my will.” Theodore has died, and two of his brothers and sisters died before him, but survived the testator. The Auditing Judge awarded shares to the representatives of these brothers and', sisters, to which the brother and sister who survived Theodore have excepted, claiming the whole.

The verbal error of saying “survivor” when “other” is meant is so common that it has become a canon of construction in Pennsylvania that (unless the context shows otherwise) the word is to be taken in that sense; or, to put it differently, that the survivorship is to be referred to the death of the testator: Johnson v. Morton, 10 Pa. 245; Ross v. Drake, 37 Pa. 373; Shallcross’s Estate, 200 Pa. 122; Black v. Woods, 213 Pa. 583; Morris’s Estate, 270 Pa. 120; Breese’s Estate, 2 Dist. R. 364; Miller’s Estate, 4 Dist. R. 764; Hubbert’s Estate, 6 Dist. R. 96. This is so even where there is an intervening life estate, to the duration of which the survivorship might possibly be referred; in this respect differing from the rule observed in connection with the words “die without issue.” (See Wildemore’s Estate, opinion filed herewith.) Breese’s Estate illustrates the application of both rules, and it is there stated that the English rule is the same in both cases.

The context here does not show anything to the contrary. “Then” is probably used as a conjunction, equivalent to “in that event,” and if it is an adverb of time, it is joined to the verb “revert” and not to the adjective “surviving.”

The prior adjudication distributing the share of Robert is not res judicata. It was suggested that the alternative gift to Robert’s issue, which is not found in the disposition of Theodore’s share, was a material difference. It is not necessary to go into this question, for it is well settled that the award of one fund is not conclusive as to the law in the distribution of another fund, though both are controlled by the same clause of the same will: Guenther’s Appeal, 4 W. N. C. 41; Havir’s Estate, 283 Pa. 292.

The exceptions are dismissed and the adjudication is confirmed absolutely.

HENDERSON, J., did not sit.

NOTE.—See Wildemore’s Estate, 9 D. & C. 809.