author: Fleming, P. J.,

text:
    Diehl’s Estate.

      Ellis L. Orvis, for exceptant; N. B. Spangler and Ivan Walker, for estate.

      S. D. Gettig, for sundry creditors.
    Jan. 6, 1930.
   Fleming, P. J.,

— This matter is before the court upon exceptions to the report of the auditor appointed to audit and distribute the balance shown by the second and final account of the administrators of this estate. The gist of the exceptions filed is the refusal of the auditor to permit Irvin G. Gray, a creditor of the estate, who did not receive any pro rata amount upon the distribution of the balance shown by the first and partial account of the administrators herein, to be equalized with other creditors, from the balance shown by the second and final account, before participating pro rata with other creditors from the balance shown by such second and final account.

Irvin G. Gray was the holder of the decedent’s note in the sum of $1175, dated Oct. 25, 1915, at four years, with interest and an attorney’s commission of 5 per cent. The administrators herein refused to recognize such note as a valid claim against the decedent’s estate, whereupon Gray instituted an action in the Court of Common Pleas of Centre County to No. 178, May Term, 1927. The suit was still pending and untried at the time of the first audit. While the auditor’s report does not formally show the appearance of Gray or his counsel at any of the stated sittings of the auditor, or that the Gray claim was ever, prior to the audit of the second and final account, attempted to be formally proven before the auditor, it, nevertheless, appears that the auditor was cognizant of and gave consideration to such claim before preparing and filing his report in connection with the first and partial account. In such report the auditor says: “Ellis L. Orvis, of Orvis, Zerby & Dale, attorney for Irvin G. Gray, appeared before your auditor on the 19th day of April, 1928, and offered a sworn statement of a certain note dated Oct. 25, 1915, upon which suit was brought, wherein Irvin G. Gray is plaintiff and M. I. Gardner and Rena Z. Diehl, administrators of the estate of Joseph D. Diehl, of Howard Borough, Centre County, Penna., deceased, are defendants, indexed to No. 178, May Term, 1927, for the sum of $1175, with interest and attorney’s commission of 5 per cent, for collection. Your auditor finds that suit was brought upon said note May 4, 1927, and plaintiff filed his statement of claim March 19, 1928, and on April 2, 1928, the defendant filed an affidavit of defense denying the indebtedness and the case is now pending in court. The testimony before your auditor was closed on the 16th day of January, 1928, and your auditor had no knowledge of this claim, no one appeared in behalf of said claim and the other creditors had no notice whatever of this claim and the amount due, if anything, is undetermined, and inasmuch as this is only a partial distribution of the decedent’s estate, this claim is not allowed to participate in this distribution, but the rights of Irvin G. Gray, the plaintiff, are preserved without prejudice for further consideration in the final distribution and settlement of this estate.”

Subsequent to the filing of the auditor’s report in the matter of the first and partial account and prior to the auditor’s sittings in the matter of the second and final account, the action in the Common Pleas was tried, a verdict rendered in favor of Irvin G. Gray, a motion for new trial dismissed, judgment entered upon the verdict, and no appeal taken. At the audit of the second and final account this judgment was duly proven before the auditor. It is to be noted here that the auditor of the first and partial account and the auditor of the second and final account were one and the same person.

The auditor is fully estopped, by his report in the matter of the first and partial account, from denying that Gray or his counsel had brought to his attention the matter of the claim in dispute. He asserts the filing of a sworn statement by Gray’s counsel on April 19, 1928, whereas the auditor’s report was not filed until May 28, 1928. Had it been the purpose of the auditor to insist upon an adjudication of Gray’s claim in the Orphans’ Court, regardless of the pending suit in the Common Pleas, it was his positive duty to reopen his audit, notwithstanding the fact that testimony had been formally marked closed, to notify all persons in interest of a time and place for further hearing in the matter, and to pass finally and definitely upon the questions of law and fact involved therein. The auditor had notice of Gray’s claim. Otherwise, he could not have mentioned it in his first report. Ample time existed for notifying creditors, and if it were his thought that the validity of the Gray claim should be determined in the Orphans’ Court and insufficient time existed for the proper disposition thereof, the auditor’s powers could have been enlarged or other suitable adjustment had. We are convinced, therefore, that the auditor did not, at the time of filing the first report, seek to have the Orphans’ Court solely to adjudicate the validity of the Gray claim, but that he was content to hold it in abeyance pending the verdict of a jury in the Common Pleas. We are further convinced that by reason of this attitude Gray andi his counsel were induced to await the second audit, confident that “the rights of Irvin G. Gray, the plaintiff, are preserved without prejudice for further consideration in the final distribution and settlement of this estate.” That Irvin G. Gray was not guilty of laches is evident, and we so find.

We are of the opinion that the rule is well settled that Gray is entitled to an equalization to the extent of the dividend allowed creditors on the distribution of the balance shown by the first and partial account, and from the balance shown by the second and final account, before participating on an equal basis with other creditors in a pro rata dividend from such second and final account.

Counsel for the administrators attempts to draw a distinction between creditors and those entitled to distributive shares, either by intestacy or under express provisions of a last will and testament, seeking thereby, to show that the long line of decisions in Pennsylvania, sustaining Gray’s contentions in the instant case as to right of equalization on a subsequent distribution, does not apply herein. With this we cannot agree, but, on the contrary, hold that creditors, being of a preferential class (see Fiduciaries Act of 1917, § 13 (a), P. L. 475), are all the more strongly entitled to such equalization. Before those entitled to distributive shares, either through intestacy or under express provisions of a last will and testament, can participate, funeral expenses, medicine furnished and medical attendance given during the last illness of the decedent and servant’s wages not exceeding one year must be paid. Rents not exceeding one year must be provided for, and all other debts, without regard to quality of the same, must be deducted before such shares are allowable. It is proper, therefore, to conclude that if the law permits those claiming by intestacy or by express provisions in a last will and testament to be equalized from a subsequent distribution, it is all the more binding that those holding preferential claims known as “all other debts, without regard to quality,” should be accorded a like right.

A decree in the Orphans’ Court confirming an account is conclusive only as to the fund then distributed, and does not bind the court when another account in the same estate comes before it for adjudication: Guenther’s Appeal, 4 W. N. C. 41. Again, we find in Landmesser’s Estate, 13 Pa. Superior Ct. 467, that where a legatee has been overpaid out of the personal estate, the amount must be charged against him at the next distribution, and he is entitled to no further distribution until the shares of the other distributees are equalized. Further, it has been held that a decree of the Orphans’ Court upon the first account of an executor is conclusive only as to the fund being distributed. It does not determine that all subsequent distributions must be made upon the same theory: Stahl’s Estate, 25 Pa. Superior Ct. 402. And we find in Appeal of Gable’s Executors, 40 Pa. 231, that it is not error to permit a partial distribution of an estate, where the right of one claimant has not been determined, if in the opinion of the Orphans’ Court enough of the estate remains thereafter to satisfy the claim when established.

While we have shown that Gray has not been guilty of laches in the instant case, we find from the authority of Grim’s Appeal, 109 Pa. 391, that, even though he had not made any effort to bring his claim to the attention of the auditor at the first audit, he would not be barred from having his claim equalized at the second audit. His only risk, as pointed out by his counsel, was whether or not there would be sufficient funds available on the second account to equalize his claim with the others. It is to be borne in mind that he does not seek to disturb the first distribution, and he could not do so if he wished. Equalization from this fund, that is, an adjustment of allowance in such a manner that with the closing of the estate all will be found to have been considered on an equal basis, is all that he asks. The authority of Grim’s Appeal, supra, says in part: “Where, on a partial distribution of an intestate’s estate, one of the distributees does not appear and the entire fund then for distribution is awarded to those who do appear and make claim, the inequality will be corrected on a subsequent distribution of other funds belonging to the decedent’s estate, by awarding to the one who received nothing on the first distribution enough to make up his proportionate distributive share of both funds; if the second fund is insufficient to make him equal with the distributees of the first fund, the whole of the second fund will be awarded to him.”

Again, in Yetter’s Estate, 160 Pa. 506, following the rule laid down in Grim’s Appeal, supra, it appears that where, upon a partial distribution of an estate, certain relatives do not participate, and the entire fund for distribution is awarded to certain only of the distributees, the inequality will be corrected on a subsequent distribution of other funds belonging to the decedent’s estate, by awarding to the one who received nothing on the first distribution enough to make his proportionate distributive share of both funds.

In Reed’s Estate, 237 Pa. 125, we find the court to say: “In other words, the widow having received more than she was entitled to in the former distributions, and the legatees and heirs less than their shares under the will and the law, can there be such an equitable distribution under present and future accounts as to give each distributee his or her proper share in the entire estate. We cannot regard this as even a doubtful question under the authority of our own cases. Where, in the distribution of a partial account, a distributee does not appear, and the entire fund then for distribution is awarded to those distributees who do appear, the inequality will be corrected in a subsequent distribution of other funds belonging to the same estate, by awarding him who received nothing on the first distribution enough to make up his proportionate distributive share of both funds: Grim’s Appeal, 109 Pa. 391. . . . There is nothing new or novel in the principle underlying these cases. It is just, reasonable and equitable. It is predicated upon the theory that in the distribution of a partial account the rights of distributees are not finally adjudicated. In an accounting by a trustee, it is recognized as an elementary principle that it is proper to compute the share of each distributee in the entire net fund accounted for, no matter whether there be one or several accounts, and to deduct from each share all former payments. . . . This is what the rule of the above cited cases means, and there is no reason in law or equity why it should be disturbed. The doctrine of res adjudicata in the sense urged by the learned counsel for appellants has no application to the facts of the present case. The adjudication of a partial account simply awards distribution of the fund then in court, and is not a final determination of the rights of the parties: Leslie’s Appeal, 63 Pa. 355; Lease v. Ensminger, 5 Pa. Superior Ct. 329.”

Again, in Kellerman’s Estate, 242 Pa. 3, it is held that while a decree distributing the balance on a partial account is final and conclusive as to what was therein contained, it is not final and conclusive as to what was reserved for a second accounting.

The learned counsel for the estate have cited for our consideration a number of cases which we have carefully considered. All of such cases, however, appear clearly distinguishable from the case at bar.

Hammett’s Appeal, 83 Pa. 392, has to do solely with the duty of a creditor to appear in the Orphans’ Court and prove his claim. Gray is not relying, as his basic right, upon the judgment obtained in the Common Pleas, but upon the proof of such judgment before the auditor in the Orphans’ Court. Nor is the question of suspending distribution relevant here. Gray admits that the distribution of funds shown by the first account is final and conclusive. It is his right to be equalized from the second fund, which he asserts.

Rorke’s Estate, 10 Dist. R. 754; Yocum v. Commercial National Bank, 195 Pa. 411, and Appeal of Lex, Exec’r, 97 Pa. 289, hold that the distribution of a decedent’s estate is solely within the jurisdiction of the Orphans’ Court, and that while the court will, in the exercise of its discretion, suspend the distribution for a reasonable time and set apart a reasonable amount to meet the claims of creditors who elect to proceed in another jurisdiction, it is error to postpone distribution indefinitely to await the action of another court. We are not concerned in the instant case with a postponement of distribution, but with an equalization on present distribution, where the fund is wholly sufficient to permit the equalization sought and to provide a further pro rata dividend among all creditors from the balance remaining, thus allowing the estate to be finally closed with all creditors having shared alike.

Guenther’s Appeal, 4 W. N. C. 41, also cited in the estate’s brief, is not in point. As pointed out above, this case holds that a decree in the Orphans’ Court confirming an account is conclusive only as to the funds then distributed, and does not bind the court when another account in the same estate comes before it for distribution. We again point out that Gray does not seek to disturb the fund adjudicated in the first audit and there distributed, for this he could not do. It is an equalization from the second account alone which he asks.

■ Kline’s Appeal, 5 W. N. C. 468, holds merely that a decree of partial distribution of an estate is conclusive only as to the fund there distributed. There is no denial of this rule in the instant case.

Stoever’s Appeal, 3 W. & S. 154, is wholly dissimilar from the instant case. There was no partial distribution. On the first and final account the estate was clearly insolvent. The auditor’s report was made and confirmed. A creditor found not to have used due diligence sought to then come in for a pro rata share. The court held that he was too late. In the instant case the claimant seeks to be equalized and put on an equality with other creditors possessing no rights superior to his. There are enough funds to do this.

The same situation existed in Mitchell’s Estate, 2 Watts, 87, cited by the estate.

In Thomson’s Estate, 5 W. N. C. 14, a creditor who had once submitted to the jurisdiction of the Orphans’ Court withdrew therefrom, and then sought to have distribution in the Orphans’ Court stayed until his claim was adjudicated in another forum. This the court very properly refused to do. No such situation exists in the instant case.

Wagner’s Estate, 31 Montg. Co. Law Repr. 21, is not directly parallel with the case at bar. It is true that in this case there were two accounts and two audits, and that the claimant had failed to prove his claim at the first audit and was, therefore, barred from an equalization from the second fund. But here the question of personalty and realty existed, and there were certain claims which had been made liens upon the realty and certain ones which had not been so adjudicated. Furthermore, there was a contest as to the validity of the note upon which claimant sought to recover and as to the competency of certain testimony upon which proof of the claim was based. There was also testimony to show that claimant had received a 5 per cent, dividend in a bankruptcy distribution upon the same claim. Furthermore, in the cited case the court held that claimant was guilty of laches, whereas the contrary exists here.

We conclude, therefore, that the exceptions to the auditor’s report complaining of the auditor’s refusal to first equalize Irvin G. Gray to the extent of the dividend received by creditors on the first distribution should be sustained. The rule is plain that such is his legal right, especially since he has done all that could be expected of him and is guilty of no laches. To permit him to receive an equalization is but to enable this estate to be closed with all claims having been disposed of on an equal basis. The other exceptions, being without merit and not having been pressed, are dismissed.

And now, Jan. 6, 1930, after argument and upon careful consideration, exceptions first to seventh, both inclusive, are sustained and exception eighth is dismissed. The report of the auditor appointed to audit and make distribution of the second and final account is recommitted to the auditor with a direction that he shall restate such report, first awarding to Irvin G. Gray the sum upon the basis of .4611 per cent., being the dividend awarded creditors on the first fund for distribution; that the amount of such last-named award be subtracted from the second fund for distribution and the balance remaining to be distributed pro rata among all claims proven, including the claim of Irvin G. Gray.


source: Caselaw Access Project

author: Reno, P. J.,

license: Public Domain

text:
    Hoffman v. Rizzetto.

      Groman & Rapoport and David Getz, for plaintiff.

      Robert E. Haas, for defendant.
    March 10, 1930.
   Reno, P. J.,

— Upon his motion to take off the compulsory non-suit, plaintiff is entitled to the benefit of all the favorable testimony as well as the legitimate inferences that may be drawn from it. Therefore, we find that plaintiff and defendant owned adjoining farms and that a spring upon defendant’s land has for many years been drained from its source through a channel on defendant’s lands and discharged upon plaintiff’s lands at a certain point. Apparently, the place of discharge has been changed at times, but the point of the discharge is not material to the issue and need not be further considered. The complaint is that defendant placed an obstruction in the channel on his land, at a point “about 100 feet from the line fence in on his [defendant’s] side,” and as a result of this obstruction the water was diverted from the channel, spread over defendant's farm and covered a part of plaintiff’s farm. The evidence was not clearly presented, but the above is, we think, a fair summary.

It thus appears that plaintiff, although the owner of the servient tenement, and, therefore, obliged to take waters which naturally and customarily flowed from defendant’s dominant tenement, was injured, in that defendant diverted the waters from the channel in which they were wont to flow and thereby created, if not a new course, at least a new method of discharging the waters of the upper fields upon the lower. This was an actionable wrong and the plaintiff is entitled to recover: Rhoads v. Davidheiser, 133 Pa. 226. It must be conceded, of course, that defendant, as the dominant owner, “may improve his lands by throwing increased waters upon his inferior” owner, but this must be accomplished through “the natural channels” and must be “for the sake of agriculture:” Kauffman v. Griesemer, 26 Pa. 407. See, also, Miller v. Laubach, 47 Pa. 154; Rielly v. Stephenson, 222 Pa. 252; Meixell v. Morgan, 149 Pa. 415; Pfeiffer v. Brown, 165 Pa. 267. There is nothing in plaintiff’s testimony which indicates that defendant’s act was done for “the sake of agriculture,” and, hence, that principle does not, in the present aspect of the case, bar a recovery.

Plaintiff’s proof of his damages was confusing and vague. Still, he was entitled at the least to nominal damages, and a non-suit should not have been entered because he failed to establish substantial damages in accordance with the correct measure of damages. Doubtless, on the occasion of the next trial, he will be better prepared upon this point.

Now, March 10, 1930, the compulsory non-suit is taken off.

Prom Edwin H. Kohler, Allentown, Pa.


author: Potter, P. J.,

text:
    Stapleton et al. v. Taylor.

      H. M. Showalter, for plaintiffs; Andrew A. Leiser, for defendant.
    Feb. 28, 1930.
   Potter, P. J.,

— The only question we are called upon in this instance to pass upon is whether the return to the writ of ejectment, signed by the deputy sheriff alone, is sufficient.

This question is easy, in our judgment, to determine. If the writ was served by the deputy sheriff, it should be signed by the sheriff as well.

A deputy is one who is appointed as a substitute for another, and empowered to act for him in his name or on his behalf; one who is appointed, designated or deputed to act for another; one who by appointment exercises an office in another’s right; one who occupies in right of another, and for whom the superior will answer: 18 Corpus Juris, 784, 785.

And the principal must answer for the acts of his deputy. An action, if any, must be maintained against the principal, or, in other words, the deputy acts for the principal, and for his acts the principal is liable.

In the case at bar the deputy sheriff of Union County served a writ of ejectment upon the plaintiffs, and made the return of service in his own name as deputy sheriff. He is the deputy sheriff and this no one will deny. But the return of the service of all legal process should be made in the name of his principal, and his name, per deputy, may be and should be signed. The principal is liable for the acts of his deputy officially, and an action for any malpractice on the part of the deputy must be brought in the name of and against the principal. We have many cases where the document is signed by the deputy alone, but if, as in this case at bar, it was tested, the principal would be liable for the official acts of his deputy.

In the case of Emley v. Drum, 36 Pa. 123, the court says that “the proper and safe rule is for the sheriff personally to sign returns. This is his duty, and it is clearly his interest, as he is then obliged to supervise the acts of his subordinates.” The sheriff should sign the return of service in this case, or it should be signed by the name of the sheriff, per John Doe as deputy. This is a technical matter, but the law points out the method to be followed.

And now, to wit, Peb. 28, 1930, the rule is made absolute, and the return of the service of the writ in this case is stricken from the records.

From A. Francis Gilbert, Lewisburg, Pa.


author: Alessandroni, J.,

text:
    Borowsky v. Charles Steiner Building and Loan Association.

      J. Maurice Gray, for plaintiff; T. Henry Walnut, for defendant.
    April 18, 1930.
   Alessandroni, J.,

— The plaintiff filed a statement of claim, averring that he had, on or about May 27, 1929, sent notice by letter of his intention to withdraw ten shares of capital stock of the David Fine Building and Loan Association, which association has merged with the Charles Steiner Building and Loan Association. The statement further averred that he received an acknowledgment from the secretary of the association of the receipt of the letter, but that the defendant has never made payment. He, therefore, claims the sum of $620 paid in, plus $11.30 accrued profits and interest thereon.

Defendant filed an affidavit of defense, and subsequently a supplemental affidavit of defense, admitting that the plaintiff had paid in $620 on his stock, but denying that the withdrawal value was $631.30 on May 27, 1929, and that proper notice of withdrawal was given as required by the by-laws. The affidavit of defense further averred that the assets of the association have not changed since the date when notice of withdrawal was given and that the assets as of that date were not sufficient to pay in full to stockholders the paid-in value of their stock. It was also averred that losses on the assets existing at the date of withdrawal have occurred and that numerous other losses will occur which will materially reduce the value of the stock below its paid-in value and that the value of the shares of stock is indeterminate. Plaintiff has entered a rule for judgment for want of a sufficient affidavit of defense.

The defendant’ contention that no proper notice of withdrawal was given, as is required by the by-laws, may be summarily dismissed. Notice was given by letter of the plaintiff’s desire to withdraw and receipt of it acknowledged on the following day. The acknowledgment stated that no other papers were required for withdrawal and that the plaintiff would be required to wait several months before payment could be made. The acknowledgment was signed by the secretary of the association, and certainly if any technical defense could have been so raised, the defendant’s letter waived it.

The sole question requiring consideration in this case is whether a defense that a building and loan association was insolvent at the time of notice of withdrawal, and that it was impossible to ascertain the value of the shares of stock, is a sufficient legal defense to a suit by a withdrawing shareholder. The facts as recited by the defendant in its supplemental affidavit of defense, which for the purposes of this discussion must be admitted as true, establish that the building and loan association was actually insolvent at the time that notice of withdrawal was given. Building and loan associations are insolvent when they cannot repay to stockholders the amount of their actual contributions : Kurtz v. Bubeck, 39 Pa. Superior Ct. 370; Eaton v. Eastern B. & L. Ass’n, 7 Dist. R. 440. The solvency of a building and loan association must be determined from a sound business point of view and not from a bookkeeping standpoint: Com. v. Pennsylvania B. & L. Ass’n, 20 Pa. C. C. Reps. 589.

It is common knowledge that many building and loan associations are now suffering, and will continue to suffer, large losses as the result of the depression in real estate values, and this affidavit of defense states facts illustrative of this condition. Regardless of the value of the shares of stock as shown by the financial statements of the defendant association, the association is alleged to be actually insolvent, and this allegation, in the light of common sense as exemplified in the above decisions, is controlling regarding the question of insolvency.

The status of withdrawing shareholders undergoes a change when a building and loan association has become insolvent. As stated in Christian’s Appeal, 102 Pa. 184: “But the right of withdrawal and the extent to which it may be exercised presupposes that at least a relative proportion of the assets will remain for the benefit of those who continue to be active members of the association. When a building association has failed to fulfill the object of its creation and has become hopelessly insolvent, it cannot be justly or equitably wound up on any other principle than that above suggested.” In that case, upon the dissolution of an insolvent building and loan association, the withdrawing shareholders were given exactly the same rights as those shareholders who had not given notice of withdrawal. The mere fact that an association is in process of liquidation does not and should not change the relative rights of the shareholders. A shareholder by giving notice of withdrawal cannot step out of an insolvent association without loss, leaving the remaining shareholders to bear the entire burden. The dictates of justice require that all the members of the joint enterprise be treated alike. In Eaton v. Eastern B. & L. Ass’n, swpra, the court stated: “The society has the right to retain from withdrawing stockholders their proportion of probable losses from depreciation óf real estate purchased by the association. The society may have the property appraised by a committee and fix the loss and assess the same on each share of stock pro rata: Endlich on Building Associations, §§ 63, 64. It has the right to retain from such withdrawing stockholders a portion of the probable loss sustained by reason of the pur-chase of real estate, sold on its mortgage, which has depreciated in value even before the loss has been fully determined by an appraisement: Knoblauck v. Building and Loan Ass’n, 8 Pitts. L. J. (N. S.) 39; Paffert v. Building Association, Ibid., 40.”

The defendant’s affidavit of defense has, therefore, set forth a condition indicating that the defendant was insolvent at the time the plaintiff gave notice of withdrawal, and that probable and imminent losses on the assets existing at that date will reduce the value of the stock even further. In the light of the authorities set forth above, and the dictates of common justice, the plaintiff is not entitled to judgment. The mere fact that there is an averment that the value of the stock as of that date is indeterminate and unascertainable does not weaken the defendant’s position. The defendant being insolvent, the plaintiff is only entitled to his proportionate share of the assets, which must be determined in a further proceeding. In fact, a withdrawing shareholder who has received more than his share must pay back the surplus received if the building and loan association should prove to be insolvent: Com. v. Pennsylvania B. & L. Ass’n, supra. We are of the opinion that the case should proceed to trial to determine whether the facts as set forth in the affidavit of defense are true and, if so, the value of the plaintiff’s stock as of the date when notice of withdrawal was given.

And now, to wit, April 18, 1930, the rule for judgment for want of a sufficient affidavit of defense is discharged.


author: Gest, J., Lamorerle, P. J.,

text:
    Buckman’s Estate.

      George W. Harkins, Jr., for exceptant; George Ross, contra.
    April 17, 1930.
   Gest, J.,

— Joseph C. Buckman, by his will dated Oct. 18, 1894, devised to his wife, Carrie, “the net income of my estate during the term of her natural life.” And his residuary estate he devised “to be divided in equal shares amongst all my children or their heirs.”

The testator had five children: two daughters, Florence and Jennie, and three sons, Walter R., J. Morris and Harry L. Buckman. His daughter, Florence, became non compos mentis, and the testator on Dec. 1, 1914, executed a codicil in these words: “My daughter Florence’s share is to be invested and she to have the income of the same during her lifetime, at her decease the principal sum is to be equally divided among my other children should any be deceased leaving children said share is to be equally divided among them.” On Jan. 11, 1918, Jennie Watson, one of the daughters, died, leaving two children, J. Walter and Caroline B. Watson; and on Oct. 31, 1918, the testator died. His wife had predeceased him.

On June 20, 1923, J. Morris Buckman died without issue; on Feb. 9, 1925, Walter R. Buckman died, leaving two children, Emily M. and Walter R. Buck-man, Jr.; and on Aug. 8, 1927, Florence died, leaving Harry L. Buckman the only surviving child of the testator.

In his adjudication, the Auditing Judge, in disposing of the share of Florence, awarded one-third thereof to Harry L. Buckman, one-third to J. Walter and Caroline B. Watson, formerly Warner, children of Jennie, and one-third to Emily M. and Walter R. Buckman, Jr., children of Walter R. Buckman. This was on the theory that the gifts in remainder were contingent upon survivorship at the death of Florence. The widow and executrix of the will of J. Morris Buckman has filed these exceptions on the ground that the interest of J. Morris Buckman was vested, and that the fund should have been awarded one-fourth to Harry L. Buckman, one-fourth to the children of Jennie Watson, one-fourth to the children of Walter, and one-fourth to the exceptant as executrix of the will of J. Morris Buckman.

The will provided that on the decease of the testator’s wife, the life tenant, the estate should be divided among all the testator’s children or their heirs, and as the testator’s wife predeceased him, the interests of all the children clearly vested at his death. Even had the wife survived, this would still be the case: Patterson v. Hawthorn, 12 S. & R. 112, a leading case, repeatedly followed, and recently in Eichelberger’s Estate, 274 Pa. 576.

Florence having become non compos mentis, the testator naturally protected her by means of a trust for her life, and directed the remainder at her death to be equally divided among “my other children,” with a proviso that should any be deceased leaving children, said share (meaning, of course, the share of any deceased child) should be equally divided among them. When the testator, in dealing with the share of Florence, referred to his “other children,” we cannot doubt that he meant all his children except Florence, as clearly as if he had mentioned them by name, and the provision for equality, repeated from the will, shows that he intended to benefit all of his children alike, except for the special provisions made for Florence on account of her mental condition: Sailer’s Estate, 26 Dist. R. 1062. In Berg’s Estate, 96 Pa. Superior Ct. 125, cited in the adjudication, the will directed a division, not among my “other children,” but “among my remaining children,” which is a very different thing. The natural meaning of “remaining children” is surviving children, those who remain at the death of the life tenant.

The testator, it is true, provided that if any of his “other” children be deceased (at Florence’s death) leaving children, they should take their parent’s share, and the Auditing Judge was of the opinion that the remainder was contingent, and J. Morris Buckman having died without issue, his executrix could not take. This construction, however, ignores the principle of Carstensen’s Estate, 196 Pa. 325. There the devise on the decease of the life tenant, the husband of the testatrix, was to “my brothers and sisters, the child or children of any of my said brothers or sisters who may then be dead, to take and receive the share that his or their parent would have taken if living.” This was held to vest an interest in the brothers and sisters at the death of the testator, subject only to a divestiture in favor of their children, if they left children, and the estate of one who died without issue during the life tenancy was held entitled. As Judge Ashman pointed out in Adams’s Estate, 208 Pa. 500, which was affirmed by the Supreme Court, “the gift to the brothers and sisters was in absolute terms with no condition that they should be living at the death of the husband, the tenant for life, and there was simply an alternative limitation, that if a brother or sister should be then dead, but leaving issue, his issue should be substituted to his interest.”

The case is similar to Strother v. Dutton, 1 De G. & J. 675, where the testator bequeathed a fund, the interest to be paid to his daughter during her life, and “at her death the principal to be distributed equally among her children, if any children are living from son or daughter being dead [sic] such child or children to be equally entitled to the share their parent would be entitled to if living.” Certain of the life tenant’s children died without issue during her life, and Lord Justice Knight Bruce held that their interests were vested, saying: “That gift in favor of the issue of children who have issue does not affect the shares of the children who died without leaving issue.” Garstensen’s Estate has been so frequently followed that it would be tedious and unnecessary to refer to all the cases. We mention, however, Massey’s Estate, 235 Pa. 289; Neel’s Estate, 252 Pa. 394, and Jennings’s Estate, 266 Pa. 60.

The Auditing Judge, however, held that the gift over on the death of Florence was implied only from the direction to divide, which, in his opinion, made the remainder contingent. In McClure’s Estate, 72 Pa. 414, which is cited in the adjudication, the estate was to be “divided” at the widow’s decease, but the Supreme Court held that the remainders to the nephews and nieces were vested and that the husband of a deceased niece was entitled to her share. In Rosengarten v. Ashton, 228 Pa. 389, the remainders were clearly contingent for other reasons. The direction was to pay over and distribute among all the grandchildren and the issue of such as may be deceased, such issue to take the share the parent would have taken if living at the time of the death of the last surviving child. This was a gift to a class which could not be determined until the period fixed by the will. In Alburger’s Estate (No. 2), 274 Pa. 15, and in the other cases cited in the adjudication, the construction of the wills was controlled by language expressly referring to survivorship at the time of distribution.

The passage so often cited from Smith on Executory Interests, § 314, especially in Rosengarten v. Ashton, reads as follows: “Where there is no gift but in a direction to pay or transfer or divide among several persons, at a future period; though the future period is annexed to the payment, possession, or enjoyment, yet it is also annexed to the devise or bequest itself. For, in this case, the direction to pay or transfer or divide constitutes the devise or bequest itself; and, therefore, the vesting in interest is postponed, and not merely the vesting in possession or enjoyment.”

It will, however, readily be perceived from a consideration of the context and of the cases cited by Mr. Smith that the contingency was inferred not merely from the direction to pay or to divide, but upon some language in the wills construed which indicated that the payment was to be made only upon the devisee’s attaining a certain age or the like. See Leake v. Robinson, 2 Meriv. 363; Murray v. Tancred, 10 Simons, 465, and Sansbury v. Read, 12 Ves. 75 (said by Jarman to be an obscure will). The above remark of Mr. Smith does not seem to be intended as a general canon of construction. And why should it be? What substantial difference is there between a devise after a life estate to the testator’s children (which is clearly vested) and a direction that the estate should be divided among them?

Our more recent cases restrict greatly the force of what was said so broadly in Rosengarten v. Ashton. See Groninger’s Estate, 268 Pa. 184; Marshall’s Estate, 262 Pa. 145; Jennings’s Estate, 266 Pa. 60; Edelman’s Estate, 276 Pa. 503. And before Rosengarten v. Ashton, Ashman, J., dissenting in Man’s Estate, 2 Dist. R. 830, said: “This rule, of course, is intensely artificial and probably defeats the intention of the testator quite as often as it carries the intention into effect. A man cannot give an interest in his estate, short of the whole, without dividing the estate; and a direction to divide either in the present or the future would by most testators be regarded as one and the same thing with a direct gift.” The Supreme Court in Man’s Estate, 160 Pa. 609, reversed this court following Judge Ashman’s dissent. There are many English cases to the same effect. In Bennett’s Trust, 3 K. & J. 280, a ease similar to the present, Vice Chancellor Wood said: “It is clear that the use of the words ‘pay and transfer’ as the only words of gift does not make such a bequest contingent,” citing Leeming v. Sherratt, 2 Hare, 14; Strother v. Dutton, 1 De G. & J. 675; Adams v. Robarts, 25 Beav. 658; Packham v. Gregory, 4 Hare, 396.

Furthermore, the presumption is always in favor of a vested legacy, especially when it is given to children: Amelia Smith’s Appeal, 23 Pa. 9; Fitzwater’s Appeal, 94 Pa. 141.

Our conclusion is that the executrix of J. Morris Buekman is entitled to one-fourth of the estate held in trust for Florence, and the exceptions should be sustained. The fact that under the will of J. Morris Buekman, his widow, a stranger to the blood of the testator, will ultimately receive the award, has, in our opinion, nothing to do with the case.

Accordingly, the exceptions of Ellie G. Buekman, executrix of the will of J. Morris Buekman, are sustained, and the account is recommitted to the Auditing Judge in order that distribution may be awarded in accordance with this opinion.

Lamorerle, P. J.,

dissenting. — The one question raised by exceptant is whether the executrix of the will of a son who survived testator, but died childless during the life of the cestui que trust, is entitled to a share of principal as coming within the designation of “other children” in the codicil to testators’ will, which codicil reads as follows:

“My daughter Florence’s share is to be invested and she to have the income of the same during her lifetime, at her decease the principal sum is to be equally divided among my other children, should any be deceased leaving children said share is to be equally divided among them.”

The Auditing Judge divided the fund in equal shares among one surviving child and children of two deceased children, ruling that the estate of the son (who, while surviving his father, is now dead and without descendants) was not entitled.

It is contended that the codicil, read in connection with the residuary clause of the will, shows a clear intent to vest the entire estate in the children, as of the date of testator’s decease; on the other hand, it is claimed that the date of the death of the equitable life tenant fixes not only the time of distribution but also determines the class which is to take.

For the sake of clarification, certain facts should be set forth in detail.

Joseph C. Buekman died in 1919. His will was made Oct. 8, 1894. After giving the income to his wife for life, this disposition was made of the residue:

“And as to all the residue and remainder of my Estate, real, personal or mixed of whatsoever nature or kind, or wheresoever situate at the time of my said wife’s decease I do hereby give, devise and bequeath to be divided in equal shares amongst all my children or their heirs.”

On Dee. 1, 1914, he made the hereinbefore quoted codicil with reference to his daughter, Florence.

At the time of the making of this codicil the daughter, Florence, was unmarried and insane. Her then mental condition would seem to be the reason for the change in the will. There were then living four children, as well as the wife. One of these children, Jennie, predeceased testator, dying Jan. 11, 1918, survived by two children, J. Walter and Caroline, and by a husband, Emmor T. Watson. The wife also died in the lifetime of testator.

All of his estate has been distributed in four equal parts among three sons, Walter R., J. Morris and Harry L., each one-fourth, and two grandchildren, the issue of the daughter, Jennie, who died in decedent’s lifetime, and who took their parent’s one-fourth.

One of these three sons, J. Morris, has since died; he leaves no issue. His wife, however, survived him. He bequeathed to her his estate and made her executrix of his will.

Florence, an inmate of the State Hospital at Norristown, died Aug. 6, 1927, and we are concerned with the proper distribution of this one-fifth of the estate directed to be retained for her benefit for life.

Testator’s original purpose was to send his estate down the line of his descendants, excluding every one else. This is manifested by the gift of the residue in equal shares to his children. There was no reason for him to add that, in event of any of them dying in his lifetime, their children were to take in their place and stead. The law attended to that: Section 15 (a) of Wills Act of 1917. The law, however, nowhere provides that where a married child shall die in the lifetime of testator, a surviving spouse shall participate; participation is limited to the issue of the deceased legatee.

When testator eliminated Florence’s share by confining it to income, he did not follow his intention as contained in the will, but, on the contrary, decreed a division among his other children and the issue of any who were dead. There was a reason in this; it was to exclude (as does the law with reference to the will itself) those not of his blood, and to include those who were, by an alternative gift to children of his deceased child or children. The codicil had taken away from her the corpus of the estate, which, had it been hers, would have passed from her to her living brothers, and to the descendants of those then deceased, but would have ignored those dead without leaving issue.

It was unnecessary for testator to use the word “then” (an adverb of time), where the context showed that “then” (as an adverb of time) was meant. “Other children,” if living, were to take; if dead, their children were substituted; but no provision was made for other children who were at the time deceased and had no issue then surviving.

The matter has been ably argued and numerous briefs submitted. There are many authorities in point, some “pro” and some “con,” but when all is said and done, precedents are of little moment, in arriving at intention, where, as in the instant case, a comparison of the original will with the codicil demonstrates that testator’s expressed intent was to benefit his children; in the alternative, their descendants, and none others.

The thought is well expressed in Long’s Estate, 270 Pa. 480, 487, where the present Chief Justice says: “We need only say, of the many authorities cited to us by counsel, that ‘precedents are of little value in the construction of wills, because, when used under different circumstances and with different context, the same words may express different intentions. When the intent of the testator, and by that is meant his actual intent, can be fairly gathered from his words, the fact that another testator has used the same words with a different meaning is of no avail. Neither precedents nor rules of construction can override the testator’s expressed intent’ (Redding v. Rice, 171 Pa. 301, 306) ; and this, in the present case, the court below correctly found from the will.” See, also, Reiff v. Pepo, 290 Pa. 508.

The Auditing Judge stressed Berg’s Estate, 96 Pa. Superior Ct. 125, a case in some respects analogous to this, wherein, as in this, there was no antecedent gift independent of the time fixed for payment, and where it was held that the gifts in remainder were contingent and not vested.

Carstensen’s Estate, 196 Pa. 325, does not seem to me to be in point, because there the court dealt with an outright gift. Here we have a will, wherein there is a gift to all the children; and a codicil, wherein there is no gift, but merely a direction to divide upon the death of the cestui que trust. They must be read together. Testator naturally expected his daughter, Florence, to survive him; otherwise there was no reason for the creation of the trust; and in expectation of such survivorship, he in effect revoked the legacy in her favor and provided for a distribution of the corpus of her share, effective upon her decease, by directing a division of same among his other children and the issue of any deceased. The only gift is in this direction to divide, and for that reason the class who were to take could not be definitely determined until her death, and the widow of the son who was at this time deceased did not form a member of the class.

For these reasons, I would dismiss the exceptions.

Judge Van Dusen concurs in this opinion.


text:
    Commonwealth v. Jordan et al.

      A. F. Gilbert and William K. Miller, District Attorney, for Commonwealth.

      Jay G. Weiser, for defendants.
    Jan. 9, 1930.
   Potter, P. J.,

— On Nov. 15, 1929, a buck deer was shot and killed in West Beaver Township, Snyder County, Pennsylvania, near where Charles Fry resides. There is no doubt but that this deer was killed out of season, but the query as to who killed it remains unanswered. The game warden for this district, Mr. Miles Reeder, who resides in MifHinburg, Union County, swore out a warrant for the arrest of these, defendants on this charge, as well as on the additional charge of hunting at night with an artificial or electric flashlight. This informant knows nothing of this offense personally, all his knowledge thereof coming from what he has been told by other persons. The defendants were convicted before the justice of the peace and were fined $500 each. They took an appeal to this court, allowed by the two associate judges, and we now have the case before us for disposal.

At the time of the hearing before us the Commonwealth interposed the objection that the matter having been adjudicated before a proper and legal tribunal, we had no right to hear testimony in the case, but were limited to errors appearing on the record. Generally speaking, this may be true, but this is one of the exceptions, as we view it.

An appeal must be “upon cause shown,” not merely to review conclusions of fact; and the cause shown must be violation of some legal principle, some misconduct or oppression, which will appeal to the court as a reason for granting a further and fairer hearing: Com. v. Stokes, 4 Pa. Justices’ Law Repr. 163. To entitle the applicant to an appeal, the application must show either that he has some specific reason and well-grounded cause for complaint against the judgment, or that there is a substantial dispute in fact or in law of such character and moment as to entitle him to have a decision upon it in a higher court: Board of Health v. Crest Farm Dairy Co., 14 Pa. C. C. Reps. 119. Arid when an appeal has been allowed, the appellant is entitled to a hearing, unless the appeal is dismissed or stricken off; and he cannot be required to prove that he did not have a fair and impartial hearing before the magistrate before he will be permitted to prove that he is not guilty of the charge preferred against him: Com. v. Levine, 36 Pa. Superior Ct. 188. Where the defendant failed to attend the hearing, of course, allegations of denial are not sufficient, and where he does not assign good and sufficient reasons for his absence: Com. v. Menjou, 174 Pa. 25. An appeal will be allowed where a doubtful question is involved: Com. v. Saeger, 22 Pa. C. C. Reps. 169; when the court has a well-founded doubt as to the sufficiency of the legal authority for the proceeding, or the correctness of the conviction complained of: Com. v. Johnston, 1 Pa. C. C. Reps. 22.

There is no fast and loose rule as to when an appeal will be allowed. It is left chiefly to the discretion of the court, to the end that justice may be meted out, and we do not think the two associate judges erred in allowing this appeal. It can be allowed to correct matters of law and fact, and in this case we think there are some matters of both to be corrected. And the appeal thus allowed is to be heard de novo.

It is maintained by counsel for the defense that the information is fatally defective, in that it was made out and sworn to by a person who knows nothing whatever about the incidents and circumstances attending this alleged offense, except what he was told by other people.

Mr. Miles Reeder, the game warden for Snyder and Union Counties, makes the information and charges flat-footedly that these defendants “did on or about the 15th day of November, 1929, . . . willfully, maliciously, unlawfully hunt, and chase, and shoot, and kill and pursue, with intent to hunt, and chase, and take, and kill, and pursue, and wound wild birds and animals with firearms and device propelling by force a leaden pellett and bullet; and making use and taking advantage of any vehicle and artificial light or battery or other contrivance or device to hunt for and catch and take and kill and wound wild game, to wit, a buck deer with antlers, during the closed season for taking deer, contrary to the act of assembly in such case made and provided, being sections 701 and 704, Act of May 24, 1923, and amendments and supplements thereto.”

This information is sworn to by Reeder as a bald fact, as though he had seen the whole occurrence. He does not even set out that it is upon information and belief, nor from whom he has received his information, nor that he expects to be able to prove it.

“A warrant is illegal, under section 8, article I, of the Constitution of Pennsylvania, where the affiant does not give the name of his informant nor the facts communicated to him, but contents himself with making the bald statement that the defendant, on or about July 5, 1898, committed adultery, as he, deponent, is informed and expects to be able to prove:” Com. v. Clement, 8 Dist. R. 705. In the case of Com. v. Green, 185 Pa. 641, 649, an information setting out “to the best of his knowledge, information and belief” was held sufficient, but we have no such averment in the information at bar. In re Charge to the Grand Jury, 3 Pitts. Rep. 174, it is said: “Where it is all hearsay or outside of his own knowledge, he (the informant) should so state, setting out the facts of which he has been informed which induce him to believe the party charged is guilty, and that he believes such information to be true. .. .” An indictment will, on motion, be quashed where the complaint on which it is based is made “from information received” and not the personal knowledge of the complainant, and does not set forth the name of the informant or the facts communicated to the complainant or his belief in the information received: Com. v. Roland, 10 Dist. R. 410. In the case of Bates v. Rowley, 11 Phila. 210, the affidavit stated, “is informed and believes that the said Salmon B. Rowley has rights in action, money and evidences of debt which he unjustly refuses to apply to the payment of the above-mentioned judgment recovered against him by your petitioner.” This was held too general, not sufficient, and the case was dismissed.

The insufficiency of this information was raised before us at the beginning of the hearing. We ruled that the hearing proceed and that we would determine this question when we made the final disposition of the case. From the trend of judicial opinion as herein cited it would seem as though the information in this case, made by Reeder, is not sufficient to support the case. It would seem as if he had personal knowledge of all the facts sworn to by him, when in point of fact he obtained all his information from others. He does not state the name of his informant, nor that he believes it to be true, nor that he expects to be able to prove the facts set out therein by him. There are well-established methods of legal procedure which must be adhered to in the administration of our criminal laws from which we cannot depart, and we think this is one of them. Measured by the decisions we have cited, we think this information is fatally defective. If information of this character were permitted, no one would be secure from arrest on the charge of others maliciously inclined. In the case of Com. v. Barr, 25 Pa. Superior Ct. 609, it is held the informant must be able to swear that he is informed of the statements made by him and that he believes them to be true. In the case of Com. v. Mallini, 214 Pa. 50, on the charge of murder, the county detective made the information “on information received,” and it was held sufficient. (In the case at bar we do not have even that much, and it is not a case of murder.)

Nor do we think the evidence before us sufficient to sustain the conviction. The evidence is all circumstantial, and at that none of the best by any means. It must also be borne in mind that any and all reasonable doubts are to be resolved in favor of the defendant, and this well-known maxim applies to the court as well as to the jury. Every defendant stands before the court presumed to be innocent, and the burden rests upon the Commonwealth to prove him to be guilty beyond a reasonable doubt.

It seems, on the morning of Nov. 15, 1929, at about 5.30 o’clock, one Charles Fry and his small son arose, saw the headlights of an automobile approaching on the public road, and saw a flash-light spreading a light around over the fields along the highway. Fry and his boy went out of their house to the highway to within four or five feet of the passing automobile, which was a truck, saw three men in it, one driving, one alongside the driver, flashing the light over the fields, and the other standing in the box of the truck, behind the other two, with a gun in his hands. The Frys did not know any of these three men. Shortly after the truck passed them, they heard two shots fired. Fry went to get his truck to follow, and, in the meantime, the hunting truck passed out of his sight. Shortly afterward, Fry, who had trouble in getting his truck started, followed and came up with a truck driven by Ammon Jordan. He says he saw two men get off the Jordan truck and run away. He does not say that either of these two men had a gun. This was quite some distance from his house. He followed the J ordan truck on to the home of Charles Gill, Jordan being in his truck alone. But how does Fry knew this was the same truck that passed his home at 5.30 in the morning? To fix this offense on the Jordans, Fry ought to be able to identify the Jordans as the men who drove by his house at 5.30 A. M. The buck was unlawfully killed, but what proof do we have that the Jordans were the persons who killed it, or assisted in so doing?

Jordan lives about ten miles east of the Fry place. He says that about 6.30 A. M. of that morning he and his son, Sortman Jordan, the other defendant, left his home to take some potatoes to Charles Gill. Mrs. Jordan and the son say they left their home at about 6.30 A. M. and had no gun with them. If they left their home at 6.30, how could they have been at Fry’s place, ten miles away, and shot a deer at 5.30 A. M. of the same morning? It seems to us that the defendants have proven an alibi.

J ordan was seen by Fry at Gill’s quite some time after the buck was killed, but that does not say he killed it. Many people drive this road, and the buck may easily have been killed by some one else, but we have no direct or good circumstantial evidence that Jordan killed it.

We do not think the proof is sufficient at all to hold the Jordans. We feel sure that if this case were left to a jury to decide as a matter of fact, there would be an acquittal, and it is a grave matter in our minds whether or not we would not direct a verdict of not guilty.

And now, to wit, Jan. 9, 1930, the judgment of the justice of the peace is reversed and the defendants are discharged.


author: Culver, P. J.,

text:
    Laws, Executor, v. Ovenshire et al., County Commissioners.

      lAlley & Wilson, for petitioner; R. A. Mercur, County Solicitor, contra.
    Feb. 18, 1930.
   Culver, P. J.,

— This is an application by the executor of the estate of the late Dr. M. C. Hunter, who, at the time of his decease and for some years immediately prior thereto, was the duly elected, qualified and acting coroner of Bradford County, and who performed various services and made returns thereof in some instances, and in others, returns were made by his executor after his decease, for a writ of alternative mandamus to the county commissioners to compel payment by the county of the fees claimed to be due the estate of the said Doctor Hunter.

The county commissioners filed a return thereto, in which they denied that a writ of mandamus will lie and in which the county commissioners dispute the amounts claimed in the various returns made and filed, and contend that the proper remedy is by a common law action in the Common Pleas instead of by mandamus. To this return plaintiff demurred.

At- the argument of the matter, briefs were submitted bearing upon the legal aspect of the case, and after careful consideration, we are of opinion that mandamus will not lie, for the reason that the amount due from the County of Bradford to the late coroner’s estate has never been passed upon by any tribunal, nor has it ever been ascertained and fixed in the manner provided by law.

We are also of opinion that a common law action is not the proper remedy, nor will it lie to determine the controversy involved in this proceeding. While it is true common law actions have been sustained in several instances by a coroner against a county to recover for his official services, such cases seem to have progressed through the courts without the question of the court’s jurisdiction being raised.

The Act of April 15, 1834, P. L. 537, 545, provides that the county auditors shall audit, settle and adjust the accounts of the coroner and shall make return to the court, stating the amount due either to the coroner or county, as the case may be, and a number of cases hold that this is the exclusive remedy. The Superior Court in Goehrig v. Lycoming County, 13 Pa. Superior Ct. 67, squarely rules that the county auditors have jurisdiction to audit, settle and adjust the account of the coroner, and, in commenting thereon, Judge Porter said: “We have no doubt that the county auditors had jurisdiction over the accounts of the coroner, notwithstanding the fact that coroners have been permitted to recover in common law actions where the effect of the Act of 1834 was not brought to the attention of the court.”

Being of opinion that the proper tribunal to determine the status of the account between the coroner and the county is the Board of County Auditors, and that until that status shall be determined by such tribunal mandamus will not lie, the proceedings are dismissed.

Order.

And now, to wit, Feb. 18, 1930, after due and careful consideration, suggestion sur petition for writ of alternative mandamus prayed for in this case is dismissed, at the cost of plaintiff.


author: Harvey, J.,

text:
    In re Road in Beaver and Ashland Townships.

      Corbett & Rugh and M. H. Davis, for petitioners.

      A. A. Geary, for exceptants.
    April 8, 1930.
   Harvey, J.,

On May 27,1929, viewers from the county board of viewers were, upon petition of inhabitants of the Townships of Beaver and Ashland, in Clarion County, Pennsylvania, appointed to view and lay out a proposed public road definitely set out “to begin at a point on the line of land of W. A. Knight in a public road leading from Knox to Kossuth, a distance of 160 rods from the intersection of the Kossuth road with the road known as the Ash road, and extending thence to a point on the line of land of Howard Whitling and Stanley Whitling in a public cross-road, a distance of 300 rods from the intersection of the said public cross-road with the road leading from Knox to Emlenton.” The total length of the said road desired is about one and one-quarter miles.

Due notices were served upon the Supervisors of Ashland and Beaver Townships of the proposed petition, and on May 27, 1929, R. L. Craig, C. E., D. M. Geist, Esq., and A. E. Hess, members of the county board of viewers, were appointed viewers under said petition. Notices setting forth their appointment and the purposes thereof were served upon the Commissioners of Clarion County and the Supervisors of Ashland and Beaver Townships, respectively, and “all owners of land” through which the proposed road passes or on which said proposed road abuts. Before the date set for the view of the premises (July 15, 1929), R. L. Craig, one of the viewers appointed, died, and C. A. Imel, C. E., a member of the county board of viewers, was appointed by the court in the stead of R. L. Craig, deceased. The view was proceeded with. On Aug. 26, 1929, being the first day of court succeeding their appointment, the viewers filed their report. The report was confirmed nisi. On Sept. 11, 1929, exceptions to proceedings and the report of viewers were filed on the part of Beaver Township, as follows, to wit:

1. No notice was given to the Supervisors of Beaver Township aforesaid, and no notice filed among the records of the court of the intended appointment of a viewer in place of R. L. Craig, deceased, as required by Act of March 29, 1905, P. L. 69.

2. The beginning terminus of the road laid out by the viewers is another and a different terminus from that mentioned in the petition for viewers, and also order to viewers attached to said report.

3. Nowhere is there contained in the petition for the appointment of viewers, or in the report of viewers, the distance of the beginning point of the road laid out by the viewers from the nearest intersecting public road, as required by law.

4. The viewers did not pass upon and did not find whether a public road was necessary between the beginning point and the ending point mentioned in the petition for a road.

5. Under the order of court the viewers had no authority to lay out a road with points of beginning and ending, or either of them, different from the points mentioned in the petition.

6. The report does not show that C. A. Imel was sworn as a viewer.

7. The entire proceedings are irregular, illegal and void.

After hearing arguments of counsel upon the exceptions, and due consideration, we conclude as follows upon said exceptions, in order, viz.:

1. The county board of viewers is a body of persons particularly and peculiarly qualified to exercise the functions of viewers in all matters coming within the scope of their powers, under rules and regulations of the Courts of Common Pleas of their respective counties. Each member of the board, before entering upon the duties of his office, shall take and subscribe to an oath or affirmation to perform faithfully all the duties imposed upon him by law. “In case of vacancies in a board of view appointed in any case, and before its final action, the court which appointed the board may fill such vacancies in the board by the appointment of other members of the board of viewers:” Act of June 23, 1911, § 5, P. L. 1123. The constitution of the board is a matter under the law and rules of court. The law provides for the appointment of viewers, and “in case of a vacancy before final action,” that the vacancy may be filled by the court. As an abstract proposition, who the individual members of the board of view may be is no concern of the petitioners so long as they are duly appointed, qualified and perform the duties and requirements of their appointment properly. We are not able to find where it is required that notice of the persons or of a change in the personnel of the board of viewers shall be given to the petitioners. We believe that proper notices of all meetings relative to the view were given to parties interested under the law.

Exception No. 1 is overruled and dismissed.

2. This is an important point. The Act of April 23, 1909, P. L. 142, section 1, provides: “Hereafter all petitions for the laying out or for the vacation of a public road in any county of the Commonwealth shall fix definitely the point of beginning and the point of ending, mentioned in said petition, by giving the exact distance from an intersecting public road, street or railroad already opened.” (Italics ours.) Many adjudged road cases of the nature of this one have hinged upon the very question presented here. Invariably, when the conditions appear as they do in the instant case, the cases have been dismissed. Definiteness of the termini is essential. “A report must be set aside which locates a road with a terminus different from that mentioned in the petition:” Opening New Road in Byberry, 6 Phila. 384. As a matter of fact, and as shown in the report of the viewers and draft attached hereto, the eastern terminus of the proposed new road is 222 rods from the point mentioned in the petition. True, it begins at the end of an old public road duly laid out in 1842 and of record in Clarion County, the eastern end of the old road being at or near the point set out in the petition herein. The law, however, is plain and positive: “All petitions shall fix definitely the point of beginning and the point of ending.” This report certainly does not comply with the law in that respect as to the “point of beginning.” It was urged that, under the circumstances in this case, the old 1842 road being a part of the road proposed in the petition, the law is in effect complied with. Many arguments present themselves why a deviation from the strict letter of the law shall not be made. Exception No. 2 is sustained.

3. This exception is sustained for reasons contained in the discussion of No. 2 above.

4. This exception is sustained for the reason of variance of the “beginning” terminus in the petition from that set out in the report of viewers, and while the report sets out that “the said section of road [beginning at the western terminus of the road laid out in 1842, etc.] is necessary as a public road for the use and convenience of the traveling public,” the fact is that the proceedings for the laying out the section in question are invalid by reason of the variance of the “beginning” terminus in the petition and report, and the finding of the viewers as to the necessity of the section of the road is of no effect.

Exception No. 4 is sustained.

5. This exception is sustained.

6. While the report of the viewers, signed, inter alia, by Charles A. Imel, does not set out unequivocally that Charles A. Imel made oath specially in this case, yet, upon his appointment, he was sworn “to perform faithfully all the duties imposed on him by law.” I think we may assume that the report signed by him, in which it is stated “the viewers having first severally taken oath as viewers as required by law,” intended and did cover the point to which exception is made.

Exception No. 6 is overruled and dismissed.

7. We sustain this exception as to exceptions Nos. 2, 3 and 4.

And now, to wit, April 8, 1930, the 2nd, 3rd, 4th and 5th exceptions filed are sustained, and the report of the viewers filed in this matter Aug. 26, 1929, is accordingly set aside and dismissed.


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

text:
    Railroad Police.
    March 25, 1930.
   Schnader, Special Dep. Att’y-Gen.,

— We have your letter requesting us to advise you whether you should take any action by reason of the following circumstances:

A railroad policeman, commissioned by the Governor, also holds a constable’s commission and is at the same time acting as a constable and as a railroad policeman.

Your Secretary for Industrial Police feels that the two offices are incompatible and has submitted the facts to you for such action as you may see fit to take.

Railroad policemen are appointed under the provisions of the Act of Feb. 27, 1865, P. L. 225. This act provides that any railroad corporation operating in Pennsylvania may apply to the Governor to commission such persons as the corporation may designate to act as railroad policemen; and that the Governor, upon such application, “may appoint such persons or so many of them as he may deem proper, to be such policemen, and shall issue, to such person, or persons, so appointed, a commission to act as such policemen.”

Persons appointed railroad policemen must take and subscribe the constitutional oath of office, which must be filed with the Secretary of the Commonwealth and recorded in every county in which the policeman is to act, have the power of policemen of the City of Philadelphia, and are required to wear badges containing the words “Railroad Police,” which must be in plain view, except when the policemen are employed as detectives.

Compensation is paid by the companies for which the policemen are appointed.

There is no provision in the act for the removal by the Governor of policemen commissioned by him thereunder; and the only provision relative to the termination of the commission is that contained in section 6, which provides that whenever any railroad shall no longer require the services of a policeman appointed under the act, it shall file a notice to that effect in the several offices where the commission of the policeman has been recorded, this notice to be noted by the recorders of deeds upon the margin of the record where the commission is recorded, and, thereupon, the power of such policeman shall cease and be determined.

The act authorizing the Governor to commission these policemen does not empower him to remove them, nor is there any other act of assembly which specifically authorizes the Governor to revoke commissions issued by him under the Act of 1865. If, therefore, the Governor has any power to remove a railroad policeman, it is conferred upon him by article vi, section 4, of the Constitution, which provides, among other things, that “appointed officers, other than judges of the courts of record and the Superintendent of Public Instruction, may be removed at the pleasure of the power by which they shall have been appointed.” This section clearly applies only to public officers. If railroad police are public officers appointed by the Governor, they may be removed under the constitutional provision quoted. If they are not public officers, the Governor does not have any power of removal, because the power is not conferred upon him by any constitutional or statutory provision.

Railroad police have a dual capacity. They are at the same time employees of a private corporation and public police officers, having the authority of municipal policemen.

Thus, when acting as employees of the railroad for which they are appointed, their actions may justify the recovery of damages against the railroad, Tufshinsky v. Pittsburgh, etc., R. R. Co., 61 Pa. Superior Ct. 121 (1915); but in making an arrest in the discharge of their public duties as police officers, they are not regarded as employees of the railroad in such a sense as to sustain a verdict against the railroad for false arrest: Bunting v. Pennsylvania R. R. Co., 284 Pa. 117 (1925), and Naugle v. Pennsylvania R. R. Co., 83 Pa. Superior Ct. 528 (1924).

In the Bunting case, Mr. Justice Frazer, speaking for the Supreme Court, said, at page 121:

“. . . under the charge of forgery and embezzlement made at the instance of one in no manner connected with defendant company, it must be presumed the officer, in making the arrest and also in the subsequent conduct in having plaintiff held to bail, was not acting for and on behalf of defendant company but as a public police officer. . . .”

Similar language was employed by the Superior Court in the Naugle case.

It is true that railroad policemen are paid by the railroads, but it is also true that they cannot begin to function as such until they have been commissioned by the Governor and have taken the constitutional oath of office, and that in the discharge of their duties they have the same authority which is conferred by law upon police officers in cities of the first class. Accordingly, while these officers are anomalous, in that they are charged with the performance both of public and of private duties, nevertheless, we are clearly of the opinion that they are public officers within the meaning of article VI, section 4, of the Constitution and may be removed by the Governor at pleasure.

Should a railroad policeman be removed because he is also a constable?

There is no constitutional or statutory provision specifically declaring incompatible the offices of railroad policeman and constable. However, a constable is an elected public officer, whose duties are in a large measure police duties. The work of a constable and of a railroad policeman is work of a similar character; and when the same person is acting in both capacities we cannot conceive that it would be possible clearly to distinguish at all times between the duties he was performing as constable and the duties he was performing as a railroad policeman. There should be no ground for suspicion that, in the performance of his duties, an elected public officer of any grade is subject to the directions of a private corporation, and it seems to us that it is highly improper for a constable to serve during his term of office as such, also as a railroad policeman. This, however, is hot a conclusion required by any constitutional or statutory provision or any adjudicated case. Whether a constable should be permitted to function as a railroad policeman is, in the last analysis, a question of policy which you alone have jurisdiction to determine.

Prom C P. Addams, Harrisburg, Pa.


author: Henderson, J.,

text:
    Potter’s Estate.

      Duane, Morris & Heckscher, for petition.

      Mark Thatcher, Assistant United States Attorney, contra.
    May 16, 1930.
   Henderson, J.,

— This is a petition for review of adjudication filed Dec. 21, 1926, wherein it is stated that the share of William Potter passes under his will, which specifically exercised the power conferred upon him by the will of his father, in favor of his two children, Mrs. Wear and Mrs. Goodman, and his share was accordingly awarded to them in equal parts.

It is now alleged that this was an error of law, in that by the will of Thomas Potter this share devolved upon these two children, and as William Potter did not change the descent in exercising the power, it was a nullity and the award should have been made to these two children by virtue of the will of Thomas Potter.

While the same persons take under both wills, this petition for review is filed because, if the estate passes by virtue of the will of Thomas Potter, no Federal estate tax, it is alleged, will be laid on this fund, whereas if the fund passes under the appointment in the will of William Potter, it will be taxable, because the Federal estate tax act provides that in arriving at the gross estate of a decedent for Federal tax purposes there shall be included “any property passing under a general power of appointment exercised by the decedent.”

It is true that we have no jurisdiction over questions of Federal taxation; nevertheless, our record should not be left in such shape as might embarrass parties in interest in having those questions properly determined.

This precise question of Federal taxation appears to have been decided in the Estate of Helen M. Grant v. Commissioner of Internal Revenue, Decision No. 4295, Docket No. 13,792. In that case the life estate was given in trust to a daughter, and upon her death she was given a general power of appointment, and in default thereof the estate passed to her issue by representation. The daughter attempted to exercise the power and to appoint to her two daughters in equal shares. The Federal Government contended that the property over which the daughter had a power of appointment passed in exercise of the power, and, hence, should be taken into account in computing the Federal estate tax. The parties who would take under either will were identical. The Board of Tax Appeals held that the property did not pass under the daughter’s exercise of the general power, and was, therefore, not subject to the Federal estate tax. It stated:

“The power of appointment was operative only to the extent of permitting the daughter to designate some person or institution, other than her issue, to receive the remainder. It is clear that, if no such designation or appointment were made, said issue was to receive the property under the will of Mary E. Wolcott. This would be true whether the failure to exercise the power of appointment were due to the daughter’s dying intestate, or the designating of her issue as the persons to receive the remainder. The attempted exercise of the power did not affect the passing of the property in question under a general power of appointment.”

We have, therefore, reached the conclusion that the petitioners are entitled to have this record amended, if their contention should be upheld.

This leads us to an examination of the error complained of. Do these petitioners take their share of their grandfather’s estate by virtue of the provisions of his will or by virtue of the will of their father, William Potter?

The will of Thomas Potter provided as follows:

“. . . and in default of any such last will and testament or writing in the nature thereof, I give, devise and bequeath one of said equal parts or shares of my estate to the heirs and legal representatives of each of my said children so dying intestate free and clear and discharged of and from all trusts and confidences whatsoever.”

The will of William Potter provided:

“Tenth. Whereas in and by the last Will and Testament of my father, the late Thomas Potter, of the City of Philadelphia, there is given to, and conferred upon, me authority to direct, limit and appoint a portion of his estate, now, by virtue of the power and authority contained in the last Will and Testament of the said Thomas Potter, deceased, and thereby vested in me, I do, in exercise thereof, by this my last Will and Testament, give and appoint all the estate, real and personal, whatsoever, over and concerning which I have the power of appointment aforesaid, unto my two daughters, Adaline Potter Wear and Elizabeth Vanuxem Potter Goodman, share and share alike, absolutely and in fee simple.”

Does the phrase “heirs and legal representatives” as used in the will of Thomas Potter mean the same persons as are designated in the appointment in the will of William Potter? If so, should we not say they take under the will of Thomas Potter?

The same phrase in another paragraph of this very will was interpreted by Judge Ashman, of this court, in the Estate of Thomas Potter, deceased, 13 Phila. 318, wherein he held that by “heirs and legal representatives” the testator intended to benefit the heirs and widow of a son who died in his lifetime.

Furthermore, our Supreme Court in Crolius v. Kramer, 279 Pa. 275, interpreted the instant clause in this very will, and held it to mean the widow and two children of Thomas Potter, Jr., who by his will had made an invalid appointment.

William Potter left no widow, hence this phrase must mean his two children, whom he has named as distributees, and none other. The mere fact that under the will of Thomas Potter, the widow, if one survived, would be within the phrase used in his will, does not alter the situation when no widow survived. It is similar to that which would exist if William Potter originally had four daughters, two of whom predeceased him, unmarried and without issue. The two daughters who are before us would be the only distributees under both wills.

Under which will should the award be made? The rule is succinctly stated in 26 Ruling Case Law, 219, § 189:

“And it has been held that if the donee of the power exercises it in such a manner that the property passes exactly as it would have passed if the power had not been exercised, the property will be treated as passing under the will of the donor of the power.”

The reason for the rule is clear. The will of- Thomas Potter vested the remainder in the two children of William Potter, subject to his right by a general power to direct otherwise; he has not directed otherwise, hence the vesting under the earlier will has not been disturbed and the award should have'been so made. ,

The principle involved is well illustrated In the Matter of Lansing, 182 N. Y. 238 — -the donee of the power appointed the property to the same person who would have taken in default of the exercise of the power. The Court of Appeals said:

“Her rights were fixed by the will of her grandfather, and, unless changed pursuant to its provisions, her estate in expectancy would become an estate in possession upon the death of her mother. While the situation was subject to change under the power of appointment, no change was made. Althougn the power was exercised in form, her title was perfect without it, and she derived no benefit from it. The power was to ‘dispose of the remainder,’ and the remainder was not disposed of, but continued where it was. The attempt to execute the power was not effective, because it did nothing. The exercise of the power which leaves everything as it was before is a mere form, with no substance.”

In Freeman’s Estate (No. 1), 35 Pa. Superior Ct. 185, our Superior Court said:

“The rule applies also to remainders: ‘A remainder is always to be considered vested rather than contingent if the words of the will creating it are capable of construction:’ Chew’s Appeal, 37 Pa. 23; Siddall’s Estate, 180 Pa. 127. The interest vests immediately and the enjoyment only is postponed. In the absence of an expressed contrary intention, a legacy bequeathed in default of appointment vests in the legatee on the death of the testator, subject to be divested by the exercise of the power of appointment: 4 Kent’s Com., 324; Fearne on Remainders, 226; Perry on Trusts, §250; Cunningningham v. Moody, 1 Vesey, Sr., 174. This is so because the power of appointment does not create an estate, nor hold it in abeyance. Its effect is to divest an estate which, but for the exercise of the power, would remain in the devisee or legatee. The will tinder consideration does not disclose an intention inconsistent with this principle. In the event of the death of any one of the children, his share was to go to the child or children of such deceased son or daughter, or to the issue of any child or children of such son or daughter, subject only to the exercise of the power of appointment. If there be no appointment, the whole interest passes to the grandchild or his issue. The full exercise of the power would divest the estate, but it could be defeated in no other way.”

The respondent, the Collector of Internal Revenue, further contends that, in the absence of fraud, we have no power to modify or amend a decree of confirmation after the term when it was entered. This contention is without merit, as there are no terms in the Orphans’ Court. See Kretzer v. Murry,

We have, therefore, reached the conclusion that William Potter’s attempted exercise of the power was a nullity, and the award should have been made to these distributees under the will of Thomas Potter. The adjudication is amended accordingly, and, as amended, is confirmed absolutely.


author: KUN, J.,

text:
    Meyers v. Rental Income Corporation.

      Albert Loeb Katz, for plaintiff; Harry Shapiro, for defendant.
    May 16, 1930.
   KUN, J.,

— This is a suit by plaintiff, purchaser of real estate at sheriff’s sale, to recover from the defendant the amount of taxes it failed to pay and which the plaintiff was required to pay, the basis of the claim being, as alleged in the statement of claim, that the defendant was the owner of the property when the taxes accrued. The affidavit of defense filed, while admitting defendant was the registered owner, denies that the defendant was the real owner of the property or had any interest of any kind therein, as a consequence of which it could be held liable to the plaintiff. Plaintiff filed a rule for judgment against defendant for want of a sufficient affidavit of defense. The only question in the case at this time is whether the affidavit of defense has sufficiently set forth alleged facts and circumstances which, if proven, would defeat plaintiff’s right to recover against it.

The statement of claim sets forth a good cause of action. Such liability as is alleged against the defendant is well settled. Undoubtedly, also, there is a prima facie case against one in whose name the title is registered, because there is a presumption that the record owner is the real owner. It is the real owner, however, who is liable for the taxes, or at least one whose title or interest is more than a mere naked or dry trust. So the real owner was held liable, for instance, in a case where the taxes were assessed in the name of another — a tenant — who by force of a statute was primarily liable for their payment: Caldwell v. Moore, 11 Pa. 58. Reference to the several cases cited by the plaintiff in support of his rule for judgment shows that they are not controlling, because the pleadings or the facts which appeared in these cases did not sufficiently avoid the liability. In the first case cited, Landreth v. McCaffrey (No. 2), 17 Pa. Superior Ct. 276, it appeared from the declaration of trust executed by the registered owner that the intention of the owners was that he should take title to the land, advance his own money, complete the improvements, pay taxes, hold the land as security, and then sell the property to reimburse himself. It is clear, therefore, that the registered owner was more than a mere dry trustee. He had an interest in the land to which he held title, and, therefore, was liable for the taxes.

In the next ease, Neilson v. Equitable Trust Co., 18 Pa. Superior Ct. 635, which went up from this court, it appeared that the defendant held title as a consequence of some written agreement between other persons in the nature of a building contract, the terms of which were not set forth in the affidavit of defense. The court said that the assertion in the affidavit of defense that the defendant was a mere dry trustee was a conclusion of law, and the facts upon which the conclusion was based not having been stated, the affidavit was insufficient.

The next case, Bergdoll v. Pitts (No. 1), 41 Pa. Superior Ct. 257, was likewise one in which there was a mere statement by the defendant that she was trustee for another, in addition to some averments which the court held to be “vague, evasive and insufficient.”

The writer sat at the argument of the recent case of Metropolitan Trust Co. v. Real Estate-Land Title and Trust Co., 12 D. & C. 73, in this court and concurred in the opinion written by Judge Taulane. Although the defendant alleged that it held the property as trustee, it clearly appeared that it had a certain security interest in the property, with the right to enter into possession, lease it and collect the rents. This fact rendered the defendant liable, as was the case in Commonwealth National Bank v. Shoemaker, 13 W. N. C. 255, and Landreth v. McCaffrey, supra.

The case of Rawle v. Renshaw, 15 Pa. Superior Ct. 488, gives a correct statement of the law, and the reason for it. That ease has neither been overruled nor weakened in any sense, as suggested by the plaintiff. It is there said the right to recover in such a case as this is based upon the principle “that he who is compelled to pay the debt of another, because of the omission of the debtor to do so, may recover on the ground that the money is paid for the use of the debtor, and the law infers that the debtor requested such payment and promised reimbursement. Upon this implied promise of the debtor, the party may maintain an action at law in his own name without the intervention of the municipality or the collector of taxes as legal plaintiffs. It is an equitable mode of compelling the ultimate discharge of the debt by him who in good conscience ought to pay, and to relieve him whom none but the creditor could ask to pay. This right is not to be sustained when, under the circumstances, we would reach a result not only inequitable but in direct contravention of the principles upon which the right has been recognized to be founded. In the present case, accepting the affidavit of the defense as true, the defendant never was the owner of the land upon which the taxes were assessed; his only title was a naked trust.”

The defendant in that ease had executed a written declaration of trust to the real owner which was not recorded. This fact and the fact that the plaintiff had knowledge of the facts were incidents in the case, but not the reasons for the decision. The court held that, accepting the averments in the affidavit of defense as being true, the defendant was never the real owner of the land upon which the taxes were assessed. The fact of real ownership was in no sense dependent on plaintiff’s knowledge or ignorance of the fact.

There is no question in the case of showing title by an oral agreement. There is no reason why one who has in fact taken title for another may not acknowledge it and declare the fact orally, or, indeed, as in this case, in writing by the affidavit of defense filed in this suit. The trust relationship could not be proved adversely by an oral agreement alone, but certainly the holder of the title can orally admit the fact.

The affidavit of defense shows that one Morris A. Sarshik was the real owner of the property prior to the acquisition of title by the defendant herein; that the legal title to the property was held for Morris A. Sarshik by one Joseph P. Tubis; that Joseph P. Tubis, at the request of Morris A. Sarshik, conveyed it to a third person, and took back as part of the consideration a mortgage, in which mortgage he was described as the mortgagee; that by reason of default in the terms of this mortgage, foreclosure proceedings were instituted at the instigation of Morris A. Sarshik, who paid the costs of the foreclosure, and the property was bought in by the attorney on the writ; that, at the request of Morris A. Sarshik, the defendant corporation took title to the property, but that it paid no consideration therefor, nor has it received any of the rents, income or profits therefrom, but that at all times since the conveyance to it by the sheriff, the rents, income and profits have been received by the real owner, Morris A. Sarshik, and that it, the defendant, has not received any part thereof in any manner, defendant averring that the persons charged with the payment thereof have made payments directly to Morris A. Sarshik.

The affidavit of defense does more than merely state that the defendant was a dry trustee; it shows the alleged facts and circumstances of the trust, from which, if proven, a jury could find that defendant was a mere dry trustee and that Morris A. Sarshik was the real owner of the property at all times, upon whose direction the defendant would make conveyance of the property, the defendant having no interest in it as owner or for security or for any other purpose whatsoever.

The alleged facts are set forth in great detail and with certainty, and it cannot be said that this affidavit of defense is vague, evasive and insufficient. On this rule all the averments in the affidavit of defense must be taken as true, and if so taken, it clearly shows that the defendant never was the real owner of the land on which the taxes were assessed, nor had any interest therein, or right in connection therewith in the way of security or performance of any duties with respect thereto. In short, the facts and circumstances fully set forth in the affidavit of defense show that the title held by it was a mere naked trust. To hold the defendant liable in this equitable mode of compelling the ultimate discharge of the debt by him who in good conscience ought to pay would, under the averments of the affidavit of defense in this case, produce a result not only inequitable, but in direct contravention of the principle on which the right has been recognized to be founded, as was so well stated by W. D. Porter, J., in Rawle v. Renshaw, supra.

The instant case is one in which the real facts and circumstances of the holding of title by the defendant should be developed at a trial. It is not a case in which on the pleadings the plaintiff is entitled to judgment.

The rule for judgment for want of a sufficient affidavit of defense was properly discharged.