author: Hassler, J.,

text:
    Campbell & Taylor v. Rhoads.

      Written contract — Modification .by parol — Misuse of written contract— Affidavit of defence.

    In an action on a written contract containing a stipulation that it constitutes the entire agreement between the parties, an affidavit of defence is sufficient which avers that it was agreed by a contemporaneous parol agreement which induced the contract that the written contract was to be used only for a specific purpose set forth and that the plaintiffs were attempting to use it for a different purpose in the instant case.
    Rule for judgment for want of a sufficient affidavit of defence. C. P. Lancaster Co., Sept. T., 1926, No. 49.

      8. V. Hosterman, for rule; John M. Groff, contra.
    April 16, 1927.
   Hassler, J.,

The facts upon which the plaintiffs rely to recover, as set forth in their statements, are as follows: On July 30, 1926, the defendant entered into a written contract with the plaintiff, wherein he agreed that the plaintiffs were to have the exclusive right, for the term of one hundred and ninety days, to sell his property at No. 827 Prangley Avenue, this city, for the sum of $3200, and that he was to pay them for the service of selling the same all that they obtained for it in excess of $3200. In the written contract, the defendant certified that he had “read the contract and received a copy and knew the contents thereof, and this contract constitutes the entire agreement between Campbell & Taylor and myself.” The plaintiff, on Aug. 7, 1926, obtained a purchaser for the property for the sum of $3500. The purchaser paid $100 on account of the purchase price and signed a written agreement to pay the balance on Oct. 1, 1926, upon delivery to him of a deed to the property, conveying it with a good marketable title. The defendant then refused to sell the property to the purchaser so obtained by the plaintiffs. In this action they seek to recover the difference between the price which the purchaser they obtained agreed to pay for the property, viz., $3500, and the price at which the defendant authorized its sale, viz., $3200, that being what he agreed to pay them for its sale in the written contract we have referred to.

The defendant does not deny any of the averments contained in plaintiff’s statement, but, in explanation and as a defence, alleges “that the said agreement was made and entered into with the distinct understanding and verbal agreement that Arthur E. Campbell, with whom I made the written agreement, would use the said written agreement only for the purpose of making a trade on the first property on Fifth Street off of Ruby Street. The price at which he was to sell my house to the owner of the Fifth Street house was $3200, and the price at which he was to buy the Fifth Street house was $5500. This he failed to do, unless I would pay a much larger price than $5500 for the Fifth Street house. That the consideration for my signing the said agreement was as above set forth, and that the said A. E. Campbell, acting for himself, and H. J. Taylor, trading as Campbell and Taylor, failed to carry out his part of the agreement, and failed to comply with the terms of verbal agreement which induced the signing of the written agreement, and did not carry out the written agreement as it was made, according to the verbal contract above set forth.”

It is well settled that a written contract can be varied, modified or contradicted by a contemporaneous parol agreement which was the inducing cause for the party seeking to vary, modify or contradict it having signed it. But where, as here, a written contract contains a stipulation that the contract constituted the entire agreement between the plaintiffs and defendant, parol evidence of a prior or contemporaneous parol agreement is not admissible to vary, modify or contradict it: Oxweld Acetylene Co. v. Hastings, 35 Lanc. Law Rev. 129, affirmed in 71 Pa. Superior Ct. 178; Lee Lash Co., Inc., v. Russell Sales Co., 40 Lanc. Law Rev. 347; Ridgeway Dynamo Co. v. Penn Cement Co., 221 Pa. 160; Lake Erie Seed Co. v. Edwards, 86 Pa. Superior Ct. 103; Gross v. Machine Works, 277 Pa. 368; Smith v. Holmwood, 87 Pa. Superior Ct. 100; Holcomb Co. v. Gamba, 80 Pa. Superior Ct. 191.

If the defence contained in the affidavit of defence is only for the purpose of varying or contradicting the written contract of July 30, 1926, between the plaintiffs and defendant, it is, therefore, not a sufficient defence, even though he does allege that the contemporaneous parol agreement was the inducement for his having signed it, for the reason that the written contract contains a stipulation that it is the entire contract between them.

But the defence contained in the affidavit of defence does not attempt to vary, modify or contradict the written contract, even though it may amount to that. It is alleged that it was agreed between them in a contemporaneous parol agreement that the written contract in question was to be used only for one purpose and that the plaintiffs are attempting to use it for another in violation of that agreement. This, in numerous cases, has been held to be a good defence to an action on a written contract.

In Winters v. Schmitz, 36 Pa. Superior Ct. 496, the defendant owned a house upon which the plaintiff had made very expensive alterations. Desiring to borrow money upon it, he asked the plaintiff to give him a release of liens in order that he might borrow money on the property. A paper was drawn up, in which it was stated, without the knowledge of the defendant, that the defendant was indebted to the plaintiff in a larger amount than he, the defendant, claimed at the trial he did owe him. The defendant signed it on the representation that it was a release of liens for the purpose of enabling him to borrow money on his property. At the trial, when the plaintiff attempted to use the writing as an admission of the amount of the defendant’s indebtedness to him, the defendant was allowed to prove by the contemporaneous parol agreement what it was to be used for. Judge Rice said: “When an instrument has been obtained for one purpose and an attempt is made to use it for a different and unfair purpose, parol evidence is admissible to establish the contemporaneous agreement as to the purpose for which it was to be used. ‘Nor is it essential to the admission of parol evidence that a fraud was originally intended. It is enough that, though the parties acted in mutual good faith at the inception of the transaction, an attempt is made to wrest the instrument to a purpose not contemplated or use it in violation of the accompanying agreement:’ Rearich v. Swinehart, 11 Pa. 233. This exception to the general rule has been recognized in many subsequent cases and as late as the case of Phillips Gas and Oil Co. v. Pittsburgh Plate Glass Co., 213 Pa. 183. White v. Black, 14 Pa. Superior Ct. 459, is a very similar case to the present, as appears by the second paragraph of the syllabus, which we quote: Tn an action for rent due under an alleged parol lease, where the defendant introduced as part of his defence a subsequent written lease, it was competent for the plaintiff in rebuttal to introduce evidence tending to show that the defendant did not go into possession under the lease last referred to; that it was not executed until after the term had well progressed, and that it was then signed and given to the defendant at his request for the specific purpose, and for that purpose only, of being used by him to show, in litigation then pending in court between him and a third person, that the plaintiff had admitted him in his own right as tenant of the premises.’ If there ever can be a case where the effect of a written instrument can be controlled by clear, convincing and indisputable parol testimony of the sole effect and purpose the parties, at the time they executed it, intended it to have and accomplish, this is such a case.”

In Phillips Gas and Oil Co. v. Pittsburgh Glass Co., 213 Pa. 183, which is to the same effect, Justice Mestrezat said: “The case of Davidson v. Young, 167 Pa. 265, was an issue between the obligee and obligor of a bond in which a contemporaneous parol agreement was set up as a defence. It was there held that the trial court committed no error in charging the jury that if the parties entered into that arrangement, although there was no fraud, accident or mistake, and the obligee afterwards undertook to use the bond for a purpose that was not contemplated and contrary to the agreement of the parties at the time the bond was executed, the obligor would be entitled to recover, for such use of the bond would be a fraud. In Honesdale Glass Co. v. Storms, 125 Pa. 268, Mr. Justice Green, delivering the opinion of the court, says (page 278): ‘In that aspect of the case (setting up a written contract in violation of a parol promise), it comes within the very numerous decisions of this court which hold substantially that, when the execution, of an instrument has been obtained by means of a fraud, or where there has been an attempt to make a fraudulent use of the instrument, in violation of a promise or agreement made at the time the instrument was signed and without which it would not have been executed, parol evidence may be given to prove the fraud, though it contradict the written instrument.’ Many decisions of this court are cited in the opinion to sustain the principle.”

In Federal Sales Co. v. Farrell, 264 Pa. 149, Justice Simpson says: “It is true a party who sets up a contemporaneous parol agreement varying the terms of a written instrument sued or defended upon has a heavy, burden to carry; . . . but it is equally true no such requirement exists where the attempt is to use the writing in violation of a collateral promise whereby the party’s signature was obtained to the instrument: Gandy v. Weckerly, 220 Pa. 285; Noel v. Kessler, 252 Pa. 244.”

The same rule applies where the written contract contains a stipulation, as in the case here, that it contains all the conditions pertaining to it.

In Zeller v. Haupt, 41 Pa. Superior Ct. 647, the written contract contained the following: “I have read the above and all conditions appertaining to this order appear hereon.” The court below rejected testimony offered to show it was being used for a purpose other than it was to have been used [for] according to a contemporaneous parol agreement made by the parties to it. In reversing the court below, Judge Orlady said (page 653): “The rejection of the testimony to show these material facts which were alleged to be an inducing cause to the signing of the trial order was in conflict with Gandy v. Weckerly, 220 Pa. 285, and we also held, in El Dorado Jewelry Co. v. Hopkins, 34 Pa. Superior Ct. 446, that when a party is inveigled into signing a written contract upon the faith of a contemporaneous agreement which is violated as soon as it has accomplished its purpose in securing the execution of the paper, an oral agreement may always he shown when the enforcement of the paper is attempted.”

We must assume in this proceeding that the averments in the affidavit of defence are true. As it is alleged in it, the written contract on which suit is brought was given only to be used to effect the exchange of defendant’s house and lot for one on Fifth Street, the plaintiffs are using it for quite a different purpose in attempting to collect commissions for the sale of a house and lot to a third person, notwithstanding the written contract contains a stipulation that it constitutes the entire agreement between the plaintiffs and defendant. It is a good defence that the contemporaneous parol agreement, which was the inducing cause for the defendant to have signed the contract, was made to the effect that the contract was to be used for one purpose, which is different from that [for] which the plaintiffs are attempting to use it in this case, viz., to collect commissions or compensation for the sale of the house in question to a third party. We are of the opinion that the affidavit of defence contains a sufficient defence to plaintiff’s claim1 and discharge the rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence.

Rule discharged.

Prom George Ross Eshleman, Lancaster, Pa.


source: Caselaw Access Project

author: Cummins, J.

license: Public Domain

text:
    Baldwin et al. v. Donora Borough.

      Taxation — School taxes — Excessive levy — Remedy at law — Bill in equity filed after termination of statutory time for appeal — Jurisdiction of equity— Act of July 27, 1842, P. L. 445, as amended by Act of April 29, 1844, P• L. 501 — Act of April 19, 1889, P. L. 87.

    1. When a tax has been levied according to law and no appeal has been taken to the board of revision or appeal within the statutory time, equity has no jurisdiction to provide a remedy for an aggrieved taxable, unless an illegal tax is assessed or where property not subject to a tax has been assessed.
    2. Por all irregularities in the making of assessments and for inequality or excessiveness in assessments, the remedies provided by the statute are exclusive.
    3. The plaintiffs wrongly assumed that the “board of review” would provide a proper remedy until the statutory time for appeal had elapsed.
    4. Equity cannot acquire jurisdiction over a cause of action for which the law provides a full, complete and exclusive legal remedy merely because the remedy thus provided by law has been barred by the statute of limitations.
    Bill for relief in tax assessments. C. P. Washington Co., No. 3145, in Equity.
    Before Brownson, P. J., and Cummins, J.

      David M. McClosJcey (with him R. Z. Moninger), for plaintiffs.

      Donnan & Miller (with them D. M. Anderson, Norman E. Clark and Isaac W. Baum), for defendants.
   Cummins, J.

The plaintiffs, McClelland Baldwin and certain other owners of real estate in the Borough of Donora, and as taxables therein, filed their bill, wherein appear the following allegations of fact (omitting, however, mere averments of evidence): That the county commissioners, on Aug. 8, 1924, issued to Gustave Schaff, assessor of said borough, their precept, directing him to make the triennial assessment therein for the fiscal year 1925; that said Gustave Schaff, nine months thereafter, to wit, on May 6, 1925, died, and that one A. J. Vernon was duly appointed as his successor; that a return was made and is on file in the commissioners’ office, of his books, purporting to be the return of said Gustave Schaff, but that said Gustave Schaff never made these assessments and did not make return of the same to said county commissioners; that the school board of the school district of said borough, by its secret agents, without the consent of said Gustave Schaff, assessor, unlawfully valued the taxable properties in said borough so as to increase the total valuation from approximately $7,400,000 to $13,000,000; that the properties of plaintiffs and many other taxables were included in the valuation fixed by these agents, and were raised in many instances from 200 to 500 per cent.; that during the year 1925, and within the time allowed by law, 250 taxables of the said borough and school district (but not including plaintiffs) appealed from said triennial assessment to the Court of Common Pleas, which said appeals were later settled and discontinued, which adjustments resulted in a total decrease in valuation of approximately $218,000; that plaintiffs and many other property owners were led (by some one) to believe that if any change were made by the county commissioners sitting as a board of revision on appeals made thereto, all other assessments would be considered and equalized so as to be equal and impartial, and that, for this reason, plaintiffs did not file appeals within the time limited by law; that by reason of said increases made and the material decreases secured by those appealing, said borough and school assessments are partial, unequal and unfair; that the increases imposed upon plaintiffs are from 200 to 500 per cent., and in many instances exceed actual values; that relief has been refused by the town council of said borough, the school board of said school district and by the county commissioners of said county; that the assessments are unwarranted; and that the town council for said borough, during the fiscal year 1925, failed to fix any time and place for the hearing of tax appeals by the said town council; that plaintiffs seek relief not only for themselves, but also for 300 other unnamed taxables, but not for all taxables within the borough.

This proceeding is now before the court in banc upon defendants’ answer raising preliminary objections to plaintiffs’ bill, agreeable to Rule 48 of the Equity Rules. The second objection filed questions the court’s jurisdiction, on the theory that plaintiffs had a full and complete remedy at law, and that equity is, therefore, without jurisdiction.

A precept was regularly issued by the county commissioners to the assessor of defendant borough, directing him to make therein its triennial assessment for the fiscal year in question; a return whereto is on file in the county commissioners’ office, purporting to be said assessor’s return. The Act of July 27, 1842, P. L. 445, as amended by the Act of April 29, 1844, P. L. 501, constitutes the county commissioners a board of revision. Section 13 of this act makes it the duty of this board of revision, “on receiving the returns of the assessors, ... to examine and inquire whether the same have been made in conformity with the laws of this Commonwealth, and whether all property to be valued fdr taxation for State and county purposes has been valued at a sum or price not less than the same would bring, after a full public notice, at a public sale, supposing each separate lot or piece or tract of land, with the improvements, or the personal property of each individual, company or corporation only were to be sold.” This they are expressly required to do of their own motion, without any complaint having been filed; the duty is mandatory. This section further makes it the duty of the board of revision to receive written communications, complaints or appeals relative to any property having been assessed too high or too low, and, having fixed a day for the consideration of such appeals, to reduce or raise the same. And then the Act of April 19, 1889, P. L. 37, provides that any taxable who may feel aggrieved may appeal from the decision of the “board of revision and appeal” to the Court of Common Pleas within sixty days after the county commissioners or board of appeal have held the appeals and acted on the assessments considered thereat. These are the legal remedies provided by law for the taxable.

An examination of the authorities seems to uniformly and unerringly point to the conclusion that the legal remedy thus provided for an aggrieved taxable is ordinarily exclusive; that equity only has jurisdiction where an illegal tax, i. e., a tax unauthorized by law, is assessed, or where a property not subject to a tax has been assessed; that for all irregularities in the making of assessments, and for inequality or excessiveness in assessments, the remedies provided by the statute are exclusive: Clinton School District’s Appeal, 56 Pa. 315; Hughes v. Kline et al., 30 Pa. 227; Van Nort’s Appeal, 121 Pa. 118; Moore v. Taylor, 147 Pa. 481; St. Mary’s Gas Co. v. Elk County, 168 Pa. 401; D., L. & W. R. R. Co. v. Luzerne County Comm’rs et al., 245 Pa. 515. And see Dupuy v. Johns et al., 261 Pa. 40.

It is not alleged by plaintiffs that their properties were not subject to tax, or that the taxes assessed were not authorized by law, but that in the making of these assessments there were irregularities, and that the assessments complained of are excessive and inequitable. These are the very grievances which the statutory law provides shall be remedied by appeal, first to the county commissioners as a “board of review,” and then, if still aggrieved, by appeal from their decision to the Court of Common Pleas.

Plaintiffs concede that the remedies provided by law would have afforded them complete and adequate redress, but claim that the matters complained of had been brought to the attention of the county commissioners by other taxables, who did appeal, and that they, the plaintiffs, believed that if any change were made in the assessments, the assessments of all 'property holders would be considered by the board of revision and equalized so that the same would be equal and impartial; and they had a right to assume that the “board of review” would do that very thing, for the law required them so to do: Section 13 of the Act of July 27, 1842, P. L. 445, as amended; but, in the absence of any averment in the bill that the county commissioners failed to fully discharge this duty, we must assume that the board of revision, upon receiving the assessment return in question, did examine, inquire and determine the same to have been regularly made in conformity with law, and that these assessments, after making their adjustments, were found by them to be just and equitable.

We know of no authority, and none has been called to our attention, which holds that equity could in any case acquire jurisdiction over a cause of action for which the law provides a full, complete and exclusive legal remedy, merely because the remedy thus provided by law has been barred by the statute of limitations. Equity follows the law. And see Phila., &c., C. & I. Co. v. Schmidt, 254 Pa. 351.

We do not decide that plaintiffs did not have a just cause of complaint and one which should have been redressed; but what we do decide in this case, and all that we decide, is that plaintiffs had a full, complete and exclusive remedy at law, and that being true, the court sitting in equity is without jurisdiction.

The complaint that the town council failed to appoint a time and place for the hearing of appeals in relation to the assessment of borough taxes is not pertinent to the issue, as the town council has no authority to alter the assessment valuations finally fixed by the county commissioners sitting as a board of review, or by the Court of Common Pleas, in the event of appeal thereto, but only to correct errors of calculation made thereon.

The conclusion already reached makes unnecessary a consideration of the other questions raised by defendants’ preliminary objections.

And now, Feb. 14, 1927, defendants’ objection on the ground of want of jurisdiction sustained, and plaintiffs’ bill is dismissed, at their cost.

From Harry D. Hamilton, Washington, Pa.


author: Stewart, P. J.,

text:
    Commonwealth v. Mann.

      Certiorari — Appeals—Allowance by the court.

    1. A writ of certiorari from the Court of Common Pleas to a justice of the peace, issued more than five days after a conviction for a violation of the game laws, will be quashed because it issued out of the wrong court and was too late.
    2. While the court has power to allow appeals minie pro tuno in cases of summary conviction, yet where the only reason given for the relief asked for is that the court might come to a different conclusion upon the evidence presented before the justice of the peace, the same will be refused.
    3. Section 1109 of “The Game Law,” Act of May 24, 1923, P. L. 359, provides for the review of proceedings by the Court of Quarter Sessions, and its provisions must be strictly followed.
    Rule to show cause why writ of certiorari should not be quashed and judgment affirmed. C. P. Northampton Co., June T., 1927, No. 11.

      Robert E. James, for Commonwealth; Howard M. Spengler, for defendant.
    June 13, 1927.
   Stewart, P. J.,

This is a rule to show cause why a writ of certiorari should not be quashed. The grounds of the petition are that the defendant, on April 1, 1927, was convicted and sentenced to pay a fine; that the certiorari was not issued until April 13, 1927, and that it was then issued without allowance by the court. The proceedings were under section 717 of “The Game Law,” Act of May 24, 1923, P. L. 359, title “Dogs pursuing small game or protected birds in close season.” That act, by section 1109, provides for a review of proceedings by the Court of Quarter Sessions. The section reads: “Review of proceedings by Court of Quarter Sessions. Any person convicted of violating any of the provisions of this act may enter into good and sufficient recognizance to pay the fine imposed and eosts within a period of ten days after the date of his conviction, or may certiorari or appeal the proceedings within five days after such conviction to the Court of Quarter Sessions of the county. Any prosecutor, dissatisfied with the finding of any magistrate, alderman or justice of the peace, may, in like manner, appeal to said court within said period. All such appeals shall be only on allowance of the Court of Quarter Sessions, or a judge thereof, on cause shown, and shall be determined by the Court of Quarter Sessions without a jury.” It will thus be seen that the certiorari was from the wrong court, and that it did not issue within five days after conviction. This rule, therefore, will have to be made absolute. It, however, appears from the return of the justice to the certiorari that after the defendant was sentenced to pay a fine of $10 and costs of suit, that “Atty. Spengler asks for an appeal, which was forwarded on the 2nd day of April, 1927, by the Justice, J. K. Scheirer.” That appeal was not filed until April 13, 1927, and it also was filed in the Court of Common Pleas. That appeal was taken without the affidavit which should accompany all appeals and without any surety on the recognizance. (In the recognizance attached to the certiorari, defendant did give Francis E. Miller as surety.) The learned counsel for the defendant upon argument asked, however, that we should allow this appeal to be filed in the proper court nunc pro tunc. That we have the power to allow appeals nunc pro tunc is undoubted. See Com. v. Mitchell, 20 Montg. Co. Law Repr. 49, for the rules governing such cases. That the court has power to quash an appeal of its own motion where there has been no allowance, see Com. v. Antone, 22 Pa. Superior Ct. 412. The only reason suggested upon the argument by the learned counsel for the defendant for granting the appeal nunc pro tunc was the evidence before the squire was insufficient. In the return to the certiorari, the justice sets forth the evidence of a witness who testified “that he saw the defendant’s dogs running loose, and that he heard them chasing something.” Another witness testified that “he accompanied the game protector to the defendant’s place and that the dogs were then not tied, and that a young collie pup had the hind portion of a full grown, fresh killed, rabbit and was eating of it.” The complaint is that the justice erred in his conclusion upon the evidence. Section 1109, above, provides that an appeal shall only be allowed upon cause shown, and our first rule of court, title “Appeals,” applies to the procedure. In Com. v. Blank, 6 Northamp. Co. Repr. 374, Judge Scott said: “Appeals from summary convictions are not allowed for reconsideration of a case upon the merits ‘if the party has had an opportunity to fully and fairly present his case before the magistrate, unless a doubtful legal question is involved or there is something to indicate oppressive corruption or disregard of law on the part of a magistrate, or after-discovered evidence.’ (Thompson v. Preston, 5 Pa. Superior Ct. 157.) The law has committed the decision of the case to the justice, and, unless the above conditions exist, the judge exercises no power over it, even if he might conceive the evidence would support a different conclusion.” He followed that rule in Com. v. Coleman, 10 Northamp. Co. Repr. 220, the syllabus of which is: “A certiorari to a judgment of summary conviction before a magistrate under a statute for a penalty will be quashed when issued without a special allocatur from the court. The writ will not be allowed nunc pro tunc when the defendant appeared and the record shows he has been fully heard upon the merits by witnesses, when no oppression is alleged, no doubtful legal question involved affecting the construction of the statute under which the complaint was made, and technical objections only suggested to the sufficiency of the record.” We followed it in Com. v. Kelley et al., 15 Northamp. Co. Repr. 407, and Judge Reno followed the principle in Wetherhold v. Rex, 3 D. & C. 382. We can make no order as to the appeal, because on the record the only matter is the rule to show cause why the cer-tiorari should not be quashed, but it will be noted that if an appeal were allowed, it would have to be determined by the court, and not by a jury, and, in our judgment, the determination of the justice of the peace as to matters of fact ought to stand. In conclusion, as this is a practice case, we call attention of the members of the bar to the late Act of April 1, 1925, P. L. 98, which also provides for allowance by the court upon cause shown in appeals from summary convictions and in suits for penalties.

And now, June 13, 1927, rule absolute and certiorari quashed, and judgment of the justice of the peace affirmed.

From Henry D. Maxwell, Easton, Pa.


author: Fox, J.,

text:
    Ellis v. Commonwealth Trust Company et al.

      Decedent’s estate — Realty—Sale — Implied power — Conversion—Necessity —Distribution in cash — Blending of realty and personalty — Power of executors to convey — Costs.
    , 1. Where a will directs the estate to be divided into two equal shares and specifies how each share is to he distributed among various beneficiaries, all such bequests being in money, it discloses such necessity for converting the real estate into cash in order to make distribution, and such blending of realty and personalty, as to indicate an intention that the whole estate shall be dealt with as personalty and gives the executors implied power to sell the realty and pass a good title thereto.
    2. Where the executors agree to sell realty belonging to the estate and the contest is to determine whether they can pass a good title, costs will be imposed on the estate.
    Petition for declaratory judgment to determine power of executors to sell real estate. C. P. Dauphin Co., March T., 1927, No. 438.

      Karl E. Richards, for plaintiff.

      George Ross Hull (of Snyder, Miller & Hull), for defendants.
    May 25, 1927.
   Fox, J.,

This is a petition for a declaratory judgment under the Act of Assembly approved June 18, 1923, P. L. 840, known as the Uniform Declaratory Judgments Act, praying that we adjudge and declare the rights, status and other legal relations of the petitioner, Harry T. Ellis, and the Commonwealth Trust Company and Russell H. Lindsay, executors of the last will and testament of Martha Alice Hess Calder, late of the City of Harrisburg, Dauphin County, Pennsylvania, deceased, under a contract in writing entered into between the said executors and the petitioner, whereby the former were to convey to the .petitioner by good and sufficient deed in fee simple, for the consideration therein mentioned, a certain tract of real estate, the petitioner having paid on account thereof the sum of $200, the balance to be paid on delivery of the deed. A deed was tendered to the petitioner by the executors, but the petitioner refused to accept the same, contending that the said executors, under the terms and provisions of the said last will and testament of the above-named decedent, do not have the power to convey the said real estate of the decedent, and that the deed tendered is, therefore, not a good and sufficient deed to the premises in fee simple as called for by the said contract.

The testatrix, by her will, first provides for the creation of a trust of $16,500, “which shall be taken out of her estate,” and $500 is bequeathed to her sister Catherine. “After this is done, the estate shall be appraised and divided into two equal shares.” The first share is disposed of by eleven separate bequests, ranging from $500 to $4000; some of them to educational and other charitable institutions, and two of them to be known as the “James Calder Fund,” one as the “A. Russell Calder Fund,” one as the “Ellen Wine-brenner Calder Fund,” and another as the “Calder Fund.” She disposes of the other half by giving to the First Church of God of Harrisburg $1000, and another bequest of $1000 to the Home Missions of the Church of God, “both funds to be known as the ‘Hess Funds,’ ” and the balance to be divided in equal shares among her sisters, Fannie, Carrie, Catherine, and her nephew, Russell Lindsay, after a payment of $2000 to her half-sister, Linnie A. Hess. She further provides: “At the death of any of my sisters their share shall go to Russell Lindsay or in case of his death and he leaves no children his portion shall go to my sisters Fannie, Carrie and Catherine. At the death of my sister Carrie, her share goes to her son, bnt out of that share one thousand dollars must be paid over to her husband Alex. M. Lindsay if he survives. At the death of my sister Catherine, her share shall go to my nephew Russell Lindsay, but out of that share one thousand dollars must be paid to her husband Dr. Horace W. McKenzie if he survives. The second half of the estate, outside of the bequests I have made, I wish to descend to my nephew Russell Lindsay and his children. Should he leave no issue, then it shall go to the Churches of God College at Findlay, Ohio, one half and the other half to the Church of God Home Missions and shall be known as the ‘Alice Hess Calder Funds.’ ”

The petitioner prays that we answer the following questions:

(a) Do said executors have the power to sell and convey said real estate to the petitioner?

(b) Is the delivery of a fee simple deed to said premises, duly executed and acknowledged by said executors as such, a compliance with the terms of said contract?

(c) Is the petitioner, under the circumstances, entitled to the return of the money he has paid on account of the purchase price?

The petitioner contends that the executors have no power to dispose of the real estate under the will, for the reason that there is no absolute direction to sell, that no necessity to sell appears from the will itself, and that there is no blending of the real and personal estates, which clearly shows that she intended to create a fund out of both and to bequeath the said fund as money.

The respondent contends that there is an implied power to sell the real estate given to the executors, which implied power arises out of (a) a necessity of converting her estate into cash in order to distribute the same in the manner in which she has directed; and (h) that there is such a blending of her real estate into her personalty as to indicate clearly her intention that the whole should be dealt with and distributed as personalty.

The question for our determination is: Do the executors, under the terms of the will, have power to sell the real estate of the decedent, and can they, under the will, give a good and sufficient deed?

In Hunt’s and Lehman’s Appeals, 105 Pa. 128, Mr. Justice Paxson, in writing the opinion of the Supreme Court, said: “There is no direction here to sell; only a power. It ought to be settled by this time that, in order to work a conversion, there must be either, first, a positive direction to sell; or, second, an absolute necessity to sell in order to execute the will; or, third, such a blending of real and personal estate by the testator in his will as to clearly show that he intended to create a fund out of both real and personal estate and to bequeath the said fund as money.”

This settled rule has never been disturbed, and it is the law that when it clearly appears by the will of a testator that he thereby created a fund raised out of both real and personal estate and such fund is bequeathed as money, there is a blending of real and personal estate, and, therefore, an equitable conversion. An equitable conversion operates to take the title of the real estate from the heirs and vests it in the executors for the purpose of sale.

In Vanuxem’s Estate, 212 Pa. 315, the Supreme Court said: “But conversion -will take place, though the language confers a mere discretionary power of sale, where it is not possible to execute certain provisions of the will without a sale of the real and personal property into money. ‘If a testator authorizes his executors to sell his real estate and to execute and deliver to the purchasers deeds in fee simple, and it is clear from the face of his will that it was his intention that the power so conferred by him should be exercised, it will be construed as a direction to sell and operate as an equitable conversion. If, in addition to this clear intention of the testator, it plainly appears that effect cannot be given to material provisions of the will without the exercise of this power, the conclusion is irresistible that a conversion is as effectually accomplished by the will, and the duties of the executors under it are the same, as if it contained a positive direction to sell:’ Fahnestock v. Fahnestock, 152 Pa. 56.

“With these authoritative explanations of the doctrine of equitable conversion as applied in Pennsylvania, we turn to the will of the testator to ascertain his intent and his scheme of distribution. In brief, he gives general pecuniary legacies upwards of $700,000; devises certain of his real estate to two of his sisters for life, and at their death directs a sale by the executors, and devises and bequeaths the residue of his estate to his two sisters and three brothers-in-law. Whenever it is necessary or expedient for any purpose of the estate, of administration, distribution or otherwise, the executors are given full power and discretion to sell any or all the real estate. The pecuniary legacies are to be paid before those to whom the residuary is given shall receive anything, because it is only what remains of the estate after the specific legacies are paid that passes as residue or remainder. These legacies pass to the legatees as money. The testator intended them to be paid in cash. There is nothing in the language of the will to show they are to be paid in any other way. Their character is personalty. He must have foreseen the necessity for a sale of his real estate to carry out his scheme of dividing his estate by first bestowing gifts upon the beneficiaries, in the form of pecuniary legacies, else how were they to be paid? He, therefore, gives his executors full power to sell the real estate whenever a sale is necessary for any purpose of the estate, of administration, distribution or otherwise. It is true the power is discretionary, not direct and positive, but the intent is manifest that it is to be exercised if the purposes of distribution require it. The power is, therefore, to be construed as a direction to sell.”

From a reading of the will, it is obvious that there was no positive direction under the will to sell the real estate, as the words used, viz., “All real estate can be sold by my executors,” standing by themselves, are not strong enough to create a positive direction. We must, therefore, look to the other parts of the will to see whether or not there is an absolute necessity to sell in order to execute the will, or whether there is such a blending of real and personal estate by the testatrix in her will as to clearly show that she intended to create a fund out of both real and personal estate and to bequeath the said fund as money.

In considering the whole of the will, it is manifest that the testatrix contemplated a sale of her real estate so as to make distribution in money as she provided. She divides the estate into shares; all of the bequests are in money and she earmarks many of the bequests as “funds.” She provides in one bequest of $3000 that the money be used in the purchase of land for a new church, or the erection of a new church building. In the disposition of the first share, she provides that if there be a surplus, it shall be divided between three charitable institutions, one of which shall apply its share to the payment of its indebtedness. As to the latter share to her sisters et al., it is not a devise, but a bequest of money; it cannot be carried out in the division of real estate. She also provides that: “To avoid loss in selling property and the disposition of the assets, two years can be taken to make a division or settlement.” All of which shows that the testatrix by her will intended to create a fund raised out of both real and personal estate, and bequeathed said fund as money, and for that purpose blended her real and personal estate.

There was, therefore, a conversion which took the title of the real estate from the heirs and vested it in the executors for the purpose of sale, so as to carry out the plan of distribution of the testatrix. The terms of the will cannot be carried out without exercising the power of sale, and, in connection with the clear intention of the testatrix, effect cannot be given to the material provision of the will without the exercise of the power of sale. The necessity to sell arises: Fahnestock v. Fahnestock, 152 Pa. 56; Severns’s Estate, 211 Pa. 65.

We answer the petitioner’s questions as follows:

(a) The executors do have the power to sell and convey said real estate.

(b) The delivery of a fee simple deed to said premises, duly executed and acknowledged by said executors as such, is a compliance with the terms of said contract.

(c) The petitioner, under the circumstances, is not entitled to the return of the money he has paid on account of the purchase price.

Counsel for the estate has suggested that it would be only fair to impose the costs involved in this proceeding upon the estate, which suggestion we shall follow.

And now, May 25, 1927, it is hereby ordered, adjudged and decreed that the Commonwealth Trust Company and Russell H. Lindsay, executors of the last will and testament of Martha Alice Hess Calder, have power under the will to sell the real estate of the said decedent; that a deed, executed, acknowledged and delivered by the said executors is a good and sufficient compliance with the terms of the contract made by them with the petitioner, H. T. Ellis, and that the latter is not entitled to the return of the money paid by him on account of the purchase price named in the agreement of sale, for the reason that he is legally bound to accept the deed tendered by the said executors and to pay the balance of the purchase price agreed upon; that the costs of this proceeding be paid out of the estate of the said decedent.

Prom Homer L. Kreider, Harrisburg, Pa.


author: Wagner, Dep. Att’y-Gen.,

text:
    Drug Store Registration.

      Drug stores — Registration—Operation by one not a pharmacist — Acts of 1917 and 1927.

    Under section 1 of the Act of May 13, 1927, P. L. 1009, supplementing the Act of May 17, 1917, P. L. 208, requiring that every pharmacy or drug store shall be owned by a licensed pharmacist, any person or partnership owning and conducting a drug store at the time the act was passed may continue to so own and operate it, even though not a registered pharmacist.
    Department of Justice. Opinion to Mr. Charles F. Kramer, Director, Division of Drug Store Registration, State Board of Pharmacy.
    July 14, 1927.
   Wagner, Dep. Att’y-Gen.,

I beg to acknowledge receipt of your communication of July 13th, enclosing the application of Philip Walther and W. W. Davison, of Franklin, Pennsylvania, for the registration of and permit to conduct a pharmacy under the name or title of Curtis Drug Company, said application having been made in accordance with the provisions of the Act of May 26, 1921, P. L. 1172, being a supplemental act to the Act of May 17, 1917, P. L. 208, together with your file in this connection. You have requested that you be advised of the proper action to be taken upon this application.

The facts of the case, as I understand them, are the following:

Prior to April 30, 1927, a pharmacy, properly licensed by the State Board of Pharmacy, was conducted at 1209 Liberty Street, Franklin, Pennsylvania, by Guy H. Curtis under his own name.- On April 30, 1927, Guy H. Curtis, by bill of sale, conveyed his pharmacy and drug store business at the above location to W. W. Davison. Immediately thereafter and prior to May 13, 1927, Mr. Davison sold an interest in the pharmacy to Philip Walther, and the business has since been conducted by Messrs. Walther and Davison under the name of Curtis Drug Company. Mr. Davison is not a registered pharmacist. Mr. Walther is a registered pharmacist, as is also Mr. Albert J. F. Shafer, who is employed in the pharmacy. The application which you have submitted to me is dated May 30, 1927, and is for a permit to conduct the above pharmacy for the period from July 1, 1927, to June 30, 1928.

No application has ever been made by, or permit granted to, Messrs. Walther and Davison to conduct this pharmacy for the period from May 1, 1927, to June 30, 1927.

The question which arises is whether this application should be granted in view of the approval on May 13, 1927, of Act No. 491 of 1927, which is a supplement to the Act of May 17, 1917, P. L. 208. The relevant portion of the supplemental act is as follows:

“Section 1. Be it enacted, etc., that every pharmacy or drug store shall be owned only by a licensed pharmacist, and no corporation, association or copartnership shall own a pharmacy or drug store unless all the partners or members thereof are licensed pharmacists, except that . . . any association or copartnership which, at the time of the passage of this act, still owns and conducts a registered pharmacy or pharmacies, or a drug store or drug stores in the Commonwealth, may continue to own and conduct the same, . . . and except that any person, not a licensed pharmacist who, at the time of the passage of this act, owns a pharmacy or a drug store in the Commonwealth may continue to own and conduct the same. . . .”

The exceptions quoted above clearly show that it was the intention of the legislature that any partnership or person owning and conducting a pharmacy or drug store on May 13, 1927, should be permitted to continue to own and conduct the same, whether or not all of the partners of said partnership are registered pharmacists, and whether or not said person is a registered pharmacist. In view of the fact that Messrs. Walther and Davison owned and conducted the pharmacy, above referred to, before May 13, 1927, you are advised that their application for registration and permit should be granted.

Your attention is called, however, to the fact that the applicants are conducting a business under a fictitious name, i. e., Curtis Drug Company. This necessitates their being registered in accordance with the provisions of the Act of June 28, 1917, P. L. 645, as supplemented by the Act of June 20, 1919, P. L. 542, and amended by the Act of June 29, 1923, P. L. 979. In order that your records may show that this act has been complied with, it is suggested that you require for your files a properly certified copy of the certificate filed, as required by section 1 of the said act.

Your attention is likewise called to the fact that it appears that this business has been conducted by Messrs. Walther and Davison from May 1, 1927, to June 30, 1927, without a permit. Your board is, therefore, in a position to take any action which it may deem advisable to secure the payment of the fine provided for in section 4 of the supplemental Act of May 26, 1921, referred to above.

Prom C. P. Addams, Harrisburg-, Pa.


author: Martin, P. J.,

text:
    Continental-Equitable Title and Trust Company v. The Equitable Trust Company of Philadelphia.

      Equity — Trade name — Name of corporation — Injunction—Decree—Equity mies.

    1. Where a corporation entitled “The Equitable Trust Company’’ merges with a corporation entitled “The Continental Title and Trust Company,” under the name of "Continental-Equitable Title and Trust Company,” the consolidated corporation will be entitled to enjoin a company subsequently incorporated as “The Equitable Trust Company of Philadelphia” from using that name or from using the word “Equitable” in any corporate title it may adopt, if it is found on sufficient evidence that the corporate title of the defendant tends to produce confusion in the mind of the public and injure the plaintiff in its business.
    2. The trial judge in an equity case may, under Equity Buie 73, direct counsel to prepare and present a form of decree in conformity with the findings of the court.
    3. Pacts found by the chancellor, if based upon competent and sufficient evidence, will be sustained by the court.
    Exceptions to findings of fact and conclusions of law. C. P. No. 5, Phila. Co., Sept. T., 1925, No. 13089, in Equity.

      Ira Jewel Williamis (Brown & Williams with him), for plaintiff.

      William N. Trinkle (Bell, Trinkle, Tmscott & Bell with him), for defendant.
    Jan. 9, 1928.
    The Equitable Trust Company was incorporated Dec. 17,1889.
   Martin, P. J.,

The Continental Title and Trust Company was incorporated Feb. 1, 1898.

The Continental Title and Trust Company merged with The Equitable Trust Company on Feb. 16, 1912, and the business of the two companies has continued since that time under the title of the Continental-Equitable Title and Trust Company.

On Sept. 11, 1925, the defendant was chartered as “The Equitable Trust Company of Philadelphia” for the purpose of conducting a business similar in character to that carried on by the Continental-Equitable Title and Trust Company.

The bill in equity in this case was filed by the Continental-Equitable Title and Trust Company, praying for an injunction to restrain the defendant, “The Equitable Trust Company of Philadelphia,” from doing business under the name or corporate title of “The Equitable Trust Company of Philadelphia.”

An answer was filed, averring that The Equitable Trust Company was not the plaintiff and no longer existed in law or in fact, and that the “Continental-Equitable Title and Trust Company” was a different corporation easily distinguishable from “The Equitable Trust Company of Philadelphia.”

A replication was filed, and the case proceeded to trial.

Witnesses were heard and the chancellor found as a fact that, upon the merger of the two corporations, the “Continental-Equitable Title and Trust Company” became the successor to and possessor of all rights, privileges and franchises previously vested in or belonging to each of the merged companies; that, prior to the merger, “The Equitable Trust Company” was made trustee under certain corporate trusts and mortgages, and interest coupons payable thereunder have been presented to and paid by the plaintiff, and it is highly probable that coupons will be deposited for collection from time to time as they fall due in banks in this city and elsewhere; that the “Continental-Equitable Title and Trust Company” is generally recognized and known by those who were formerly associated with or accustomed to dealing with “The Equitable Trust Company,” and by others engaged in business of a similar character to that of “The Equitable Trust Company,” by the latter name, and as successor to the rights and franchises thereof; that printed checks bearing the name “Equitable Trust Company” have been, from time to time and within the year preceding the hearing of this case, put in circulation, presented for payment and have been paid by the “Continental-Equitable Title and Trust Company;” that these checks were drawn on accounts maintained with the plaintiff by patrons who dealt with The Equitable Trust Company prior to the merger; that many title insurance policies on mortgages issued by The Equitable Trust Company are from time to time assigned and transferred to new holders and continue under the name of the “Equitable Trust Company;” that bonds in which The Equitable Trust Company is named as surety are outstanding and entered in the courts of Philadelphia County, and in all of them the plaintiff is bound in consequence of the merger; that the “Continental-Equitable Title and Trust Company” has, during the past year, received, through the mail and otherwise, communications addressed to the Equitable Trust Company intended for the merged corporation, and has received through the mail communications addressed to the “Equitable Trust Company of Philadelphia” intended for the plaintiff, and communications are received by the plaintiff intended for “The Equitable Trust Company of Philadelphia,” the defendant; that two letters of the latter class were important official communications from the Auditor General’s Department and from the Department of Banking of the State of Pennsylvania; that there is confusion in the delivery of important official communications through the mail as a result of the similarity of name of the plaintiff and the defendant company; that plaintiff, by virtue of its rights as successor to “The Equitable Trust Company,” has qualified under various wills in which the latter corporation was named as executor or trustee, and accounts in the Orphans' Court and the Courts of Common Pleas are filed by “The Equitable Trust Company,” the accountant, stated by the “Continental-Equitable Title and Trust Company.” The “Continental-Equitable Title and Trust Company” has in its possession numerous wills executed prior to the merger in which The Equitable Trust Company is designated as executor or trustee. These wills remain in plaintiff’s custody for the purpose of probate, that plaintiff may qualify as occasion requires.

The chancellor found as a fact that the use by “The- Equitable Trust Company of Philadelphia” of its corporate title will tend to produce confusion in the mind of the public, and that the natural tendency of such use, irrespective of the intent of the defendant, will be to injuriously affect the identity and interests of the plaintiff; and, as a conclusion of law, that the appropriation by defendant of the name “Equitable Trust Company of Philadelphia” is a violation of the rights of the “Continental-Equitable Title and Trust Company,” which should be enjoined by reason of the confusion it will create in the minds of the public and people dealing with plaintiff, and as likely to deprive plaintiff of business which it would otherwise obtain.

Counsel was directed to prepare a form of decree, which was subsequently prepared, submitted to the chancellor, approved by him and filed as the decree nisi.

Defendant filed fourteen exceptions.

The first exception is to the action of the trial judge in permitting counsel to prepare and present a form of decree in conformity with the findings of fact and conclusions of law.

This decree, when prepared and submitted, was adopted by the chancellor, signed and filed as his decree.

Rule 73 of the Rules of Equity Practice directs: “When a cause is ripe for a decree, it shall be entered by the prothonotary, as of course, in the form prepared by the court, if any; otherwise it shall be drawn by counsel for the successful party.”

The second exception is directed to the failure of the prothonotary to notify defendant of the filing of the decree. Defendant was notified and ample opportunity was afforded him to object or except to the form of the decree.

The third exception is also directed to the failure to give formal notice of the entry of the decree, but it is admitted that counsel of record for the defendant received a letter from counsel for plaintiff, with a copy of the decree enclosed.

The fourth, fifth, sixth and seventh exceptions object that there is no basis in the findings of fact and conclusions of law upon which to rest the injunction against the use by defendant of the word “Equitable” as decreed in paragraph one of the decree nisi.

The facts found by the chancellor, based upon the evidence submitted to him, warranted the injunction to afford plaintiff the relief to which it was entitled. It was proper to enjoin defendant from “doing any business under the name of, or corporate title of The Equitable Trust Company of Philadelphia, or using the word ‘Equitable’ in any combination with other words in its corporate title.” It was the word “Equitable” that the chancellor found created confusion and interference with the business conducted by the plaintiff.

The tenth exception objects to the finding as a fact that there has been confusion in the delivery of important official communications through the mail. This finding was supported by specific evidence proving the finding of the chancellor.

The eleventh exception objected to the finding of fact that plaintiff, by virtue of its rights as successor to The Equitable Trust Company, states and files accounts in the Orphans’ Court for The Equitable Trust Company. This fact was also proved by the testimony.

The twelfth exception objected to the finding of fact that the use by defendant of the name The Equitable Trust Company of Philadelphia resulted in confusion in the delivery and receipt of mail. This finding was supported by the uncontradicted evidence.

The thirteenth exception objected to the finding of fact that the similarity of the names would tend to confusion in the presentation for payment of coupons detached from bonds in which the office of The Equitable Trust Company is designated as the place of payment. There was no testimony offered to refute this finding.

The fourteenth exception objects to the form of the decree nisi. There is nothing in the decree that is not necessary under the facts proved to protect the rights of the plaintiff and its business.

These exceptions are dismissed.

The eighth, ninth and ninth and a-half exceptions object to that part of the discussion of the chancellor referring to a change in the title of the defendant after the present proceeding had been instituted. It appears from the record that defendant attempted to introduce this fact by filing an amended answer to the bill in equity, and that plaintiff moved to strike off the amended answer, which motion was granted.

The chancellor found there is nothing to prevent defendant from reamend-ing its new name to its old title, for there has not been filed of record any disclaimer of the right to use the old title, nor is there any binding assurance that defendant will not readopt the old name. Defendant objected to this finding on the ground that, on plaintiff’s motion to strike from the record the report made by defendant to the court, the defendant expressly stated that it had absolutely and unconditionally abandoned the name of The Equitable Trust Company of Philadelphia, or the right to return to that name, and as defendant was estopped by the answer filed, although struck off, from using the old title, and defendant declares in the ninth and a-half exception that it is not in a position to except and does not except to the injunction which, according to said adjudication, the learned chancellor has, in the exercise of his legal discretion, found and determined should be issued against the use by defendant of said formal name or corporate title, viz., The Equitable Trust Company of Philadelphia; but it does except to that part of the decree nisi which perpetually restrains and enjoins the defendant from using the word “Equitable” in any combination with other words in its corporate title.

These exceptions state in another form exceptions which are included in other exceptions heretofore considered and are not sustained.

And now, to wit, Jan. 9, 1928, the exceptions filed by defendant are dismissed.


author: Stearne, J.,

text:
    Forrestal’s Estate.

      Wills — Election by widow — Right of widow to share in intestate property.

    1. An election to take under a will is in lieu of the part of the estate as to which there is a testacy, but not as to the part as to which there is an intestacy. The widow is excluded from the intestate portion only where the gift by will is "in lieu of dower” and the intestacy is "deliberate,” as where testator did not dispose of a part of his estate.
    2. Where, therefore, a partial intestacy is caused by the failure of gifts to charities by reason of testator’s death within thirty days of the execution of the will, the widow, who elected to take under the will, is entitled to share in the intestate portion of the estate, although the will provides that the gift to her is in full payment of any claim she may have upon the estate, “whether under the intestate laws or otherwise.”

      Executors and administrators — Erroneous payment of inheritance tax— Surcharge — Remedy for refund — Act of June 20, 1919.

    3. Where executors erroneously pay an inheritance tax at the rate of 10 per cent, instead of 2 per cent., they may be surcharged with the difference, but they may secure a refund thereof under section 40 of the Act of June 20, 1919, P. h. 521.
    Exceptions to adjudication. O. C. Phila. Co., Oct. T., 1927, No. 3092.
    Wilhelm, P. J., Auditing Judge, 21st judicial district, specially presiding.— John W. Forrestal died Dec. 22,. 1925, leaving a will duly probated Dec. 29, 1925. . . .
    By his will he directed the conversion of his estate into cash and its investment by his executors, to be held for the following uses; To pay over the net income thereof to his nephew, Walter F. Forrestal, Sr., as trustee for testator's wife, Annie R. Forrestal, for life, as hereinafter recited, and after her death he gave $200 each to his nieces, Edna Egan, Agnes Forrestal and Margaret McNaughton; $500 to his grandniece, Irene Keating; $200 to Dorothy Kessler, and appointed Henry C. Kessler, her father, “testamentary guardian;” $4000 to his nephew, Walter F. Forrestal, Sr.; $1000 to John L. Keating; $5000 to his grandnephew, Walter F. Forrestal, Jr., and appointed Walter F. Forrestal, Sr., “guardian,” with power to retain or pay principal and income until the minor shall reach the age of twenty-five years; gave $500 to his great-grandnephew, Robert Forrestal Keating, and appointed his mother, Mabel 33. Greene, “guardian;” gave $500 to Edna Mellon, and the balance of his estate, one-third to the Little Sisters of the Poor and two-thirds to St. John’s Orphan Asylum.
    Testator’s will was executed Dec. 18, 1925, within thirty days of his death, and his gifts of residue to charity are void.
    Annie R. Forrestal, his widow, elected to take under the will, and died Feb. 22, 1926.
    The testator dying intestate as to residue, the persons entitled to take under the intestate laws, other than the widow, are nine nephews and nieces, William Forrestal, James Forrestal, Margaret McNaughton, Agnes Forrestal, Edna Egan, Mary A. Keating, Michael Forrestal, Ella Manning and Walter F. Forrestal, Sr. Of these, Michael Forrestal and Ella Manning have since died.
    Edna A. F. Wilcox, administratrix of the estate of Annie R. Forrestal, deceased widow of the testator, claimed her right to share in the intestate portion. The next of kin of the testator denied this right on the ground that the widow having elected to take under the will, her acceptances of the gift therein, in the words of the will, was “in full payment for any claim my wife may have upon my estate, whether under the intestate laws or otherwise.”
    The general rule is that an election to take under a will is in lieu of the part of the estate as to which there is a testacy, but not as to the part of the estate as to which there is an intestacy: Thompson’s Estate, 229 Pa. 542; Carman’s Appeal, 2 Penny. 332; Reed’s Estate, 82 Pa. 428; Freeman’s Estate, 227 Pa. 154; Arnold’s Estate, 249 Pa. 348; Fowler’s Estate, 281 Pa. 459; Rogers’s Estate, 21 Diát. R. 1006; McNulty’s Estate, 29 Dist. R. 709.
    Jackson’s Appeal, 126 Pa. 105, appears as an exception to this rule, and because of the similarity of the language of the will, the question now to be decided is whether Jackson’s Appeal rules the present case.
    In Jackson’s Appeal the will provided as follows: “I give, devise and bequeath to my most faithful and affectionate wife, Mary Barry, in lieu of her dower if she shall so elect, the equal one-third part of all my estate, both real and personal, during her natural life.”
    He then gave some small legacies, but made no disposition of the residue of his estate as to which he died intestate. The widow died without having elected to take against the will, and it was presumed she took under it. Held, the widow was put to her election as to the whole estate, as well that which passed by the will, as the portion as to which her husband died intestate.
    While the gift in the widow in the present will is practically identical, nevertheless, I am of opinion that Jackson’s Appeal is to be distinguished. There, the intestacy was deliberate — the testator did not dispose of the intestate portion — and the obligation which he placed on her to elect was obviously for the benefit of his heirs.
    Here, as the will was written, there was no intestacy; that resulted because the statute struck down the gifts to charity. There is an absence of intent as to the rights of the widow and heirs under the intestate laws. The language in the opinion of the Supreme Court in Reed’s Estate, 82 Pa. 426 (supra), is peculiarly applicable (page 431) :
    “It was not the intent of the testator or of the law she should take her legacy in lieu of the estate thus lapsed. He thought of no lapse, and, therefore, made no provision in lieu of the legacy. The lapse was from the act of God and the law of the land, which do injury to no one. If, then, the testator, by reason of the lapse, died intestate of this portion, the intestate law must govern its distribution, and this being so, what warrant is there for saying that the widow takes nothing under the intestate law?”
    The most that can be said in the present case is that the testator enjoined his wife from disturbing the provisions of his will. Her claim disappoints no one whom he named to take his estate.
    This view is supported hy the decisions to the effect that an heir may not be excluded by mere negative words. In Rorer’s Will, 7 Phila. 524, a writing which made no disposition of the estate, but which declared, “I do not wish any of my brothers to have any of my estate,” was held not to be a will. A direction that a person shall not participate in the distribution of an estate does not change his status as next of kin or deprive him of the right to share with the others as such: See Habecker’s Estate, 43 Pa. Superior Ct. 86; Potter’s Estate, 257 Pa. 468.
    I find that the portion of the estate as to which there is an intestacy is distributable, $5000 to the personal representative of the widow (Rogers’s Estate, 21 Dist. R. 1006; McNulty’s Estate, 29 Dist. R. 709), together with one-half of the excess, and the remaining one-half to the next of kin.
    The payment of inheritance tax of $2159.99 on $21,743.74 (on $179.70 appraised valuation of widow’s life estate at 2 per cent, and on the balance at 10 per cent, on Oct. 6, 1926) was duly vouched. The accountant must be surcharged with the tax in excess of 2 per cent, paid on the widow’s portion.

      Welsh & Brown and Lawrence C. Hickman, for exceptions.

      C. B. Wagoner, contra.
    Feb. 3, 1928.
   Opinion on exceptions by

Stearne, J.,

We are of opinion that the Auditing Judge was correct in his conclusions of law as to the quantum of the estate which he awarded the widow under the election which she filed to take under the will.

Because the accountants paid inheritance tax at the rate of 10 per cent., including 2 per cent, on the appraised value of the widow’s life estate, the Auditing Judge surcharged them with the tax in excess of 2 per cent, paid on the widow’s portion. This was entirely proper and not in error. Such result is not to be regretted on the ground of any possible injustice to except-ants. Where a tax is paid erroneously, a suitable remedy for refund is provided by section 40 of the Act of June 20, 1919, P. L. 521.

The exceptions are dismissed and the adjudication is confirmed absolutely.


author: McPherson, P. J.,

text:
    Martz v. Baker.

      Boroughs — Ordinance — Disorderly conduct — Reckless driving — Acts of May 16,1921, June H, 192S, and April 27,1925.

    An ordinance of a borough passed under the authority of the Act of May 16, J 921, P. L. 581, declaring reckless driving of a vehicle as disorderly conduct, and providing a penalty therefor, is superseded by the Motor-Vehicle Acts of June 14, 1923, P. Xj. 718, and April 27, 1925, P. L. 254.

      Certiorari. C. P. Fulton Co., Jan. T., 1927, No. 32.

      S. W. Kirk and Jo>hn P. Sipes, for plaintiff; John R. Jackson, for defendant.
    June 14, 1927.
   McPherson, P. J.,

The Borough of McConnellsburg, by ordinance approved June 26, 1925, defined disorderly conduct and provided penalties for the violation of the terms of the ordinance, in accordance with the power granted the borough by the Act of Assembly approved May 16, 1921, P. L. 581. In said ordinance it was provided, inter alia, that disorderly conduct was “the reckless or careless driving, or any other use of vehicles by the owners or occupants thereof as shall endanger the safety or comfort of persons using or residing on the thoroughfares of the borough;” and it provided as a penalty for the violation thereof a fine of from $5 to $25 for each offence, and in default of the payment of the fine, imprisonment in the borough lock-up not to exceed 120 hours. Under this ordinance, on a proceeding of summary conviction, the burgess of McConnellsburg, after hearing, convicted the defendant of reckless and careless driving of a motor-vehicle in violation of the ordinance, and imposed a penalty upon him of $10 and costs of prosecution. The defendant, under protest, paid the fine and costs, and on the same day, namely, Nov. 12, 1926, had issued out of the Court of Common Pleas of Fulton County a certiorari directed to said burgess.

In support of the certiorari, it is urged that the ordinance is void and unenforceable, in so far as it affects reckless or careless driving of motor-vehicles, because sections 28 and 29 of the Motor Vehicle Act of Pennsylvania, approved June 30, 1919, P. L. 678, and the amendments thereof, viz., section 28, as amended by the Act of June 14, 1923, P. L. 718, and section 29, as amended by the Act approved April 27,1925, P. L. 254, at page 281 [supersede the ordinance].

Section 19 of said act, as amended by the Act of June 14, 1923, provides that no person shall operate a motor-vehicle on the public highways of the State recklessly ... or so as to endanger property or the life or limb of any person, and for a violation thereof the person so guilty shall be subject to a fine or penalty of not less than $10 nor more than $25, to be collected by summary conviction; or in case of non-payment of such fine to undergo an imprisonment in the county jail for a period not exceeding five days; for a second or subsequent convictions these penalties are increased.

Section 28, as amended by the Act of April 27, 1925, provides as follows: “It is the purpose of this act to provide a system or code of law regulating the use and operation of motor-vehicles throughout this Commonwealth; no city, borough, incorporated town, township or county shall hereafter adopt, maintain or enforce any rule, regulation or ordinance inconsistent with the provisions of this act regulating the speed, equipment, use or operation of motor-vehicles other than” certain ordinances and rules covering special situations which are not pertinent to the questions raised here.

Section 29 of this act, as amended by the Act of June 14, 1923, provides that all informations for offences defined in this act, committed by motor-vehicle owners or operators, shall be brought under this act and not under any local ordinance or regulation. Under section 35 of the Motor Vehicle Act, it provides that all fines and penalties collected under the provisions of this act for violation of the same, and all bail forfeited, shall be paid to the State Treasury, to be be placed in a deposit fund to be available for the use of said Highway Department, excepting those collected for violations of the provisions as to speeding or weight, which fines and penalties shall be paid to the treasurer of the city, borough, town, township or county wherein the violation occurred, to be used by the same for the construction, repair and maintenance of highways.

The offence prescribed in the ordinance in question is not inconsistent with the provisions of the Motor Vehicle Act, in so far as it applies to the operation of motor-vehicles, yet it is in the penalty prescribed, both as to original and second convictions, and in the beneficiary of the fines and penalties imposed under the Motor Vehicle Act [that an inconsistency or repugnance appears]. Under the latter, the penalties are for the benefit of the Commonwealth, and under the ordinance, the borough.

Section 29, if effective, forbids the bringing of any information for offences defined in the Motor Vehicle Act and committed by operators of motor-vehicles or the owners thereof under any local ordinance.

In view of the fact that the amendments of the Motor Vehicle Act are subsequent in time of enactment to the Act of 1921, which gave the borough the right to define disorderly conduct, and provided penalties for the violation of any ordinance in exercising this power, and of the further fact that a municipality is a creature of the legislature, and that between the two the latter is the superior and the municipality the inferior, and of the inconsistencies of this ordinance with the provisions of the Motor Vehicle Act, we hold that, so far as the act regulates the operation of motor-vehicles, the ordinance is superseded by the Motor Vehicle Act and is not enforceable as affecting the same. In view of this conclusion, the certiorari is sustained and the conviction is reversed.


author: Berger, J.,

text:
    Leshefka v. Homa.

      Execution — Oral examination of defendant in execution — When not allowed — Act of May 9, 1913 — Facts disclosed by the record — Estate by entireties.

    1. An oral examination of a defendant in an execution as provided by the Act of May 9, 1913, P. L. 197, will not be allowed where the petition for the examination and the record of the case show that the defendant had no other property than an interest in land held by himself and wife as an estate by entireties.
    2. In such a proceeding, the motive of the defendant in having the title placed in the names of hiswife and himself cannot be inquired into where it appears that the wife is not a party to the proceeding and that she is not charged with any fraud in the transaction.
    3. Whatever may be the intention of a husband and wife in respect to the nature of the estate created by a deed made to them in their joint names is immaterial, because the deed alone determines that.
    4. Property held by a defendant and his wife by entireties cannot be levied upon and sold on a judgment against the defendant alone.

      Constitutional law — Incrimination of self — Oral examination of defendant in execution — Act of May 9, 1913.

    5. The Act of May 9, 1913, P. L. 197, for the oral examination of defendants in execution, does not contravene the right of a defendant not to be compelled to testify against himself.
    Petition for oral examination of judgment debtor. C. P. Schuylkill Co., May T., 1924, No. 285.

      B. B. Koch and John Skwier, for plaintiff; P. B. Boads, for defendant.
    March 7, 1927.
   Berger, J.,

This is a proceeding under the Act of May 9, 1913, P. L. 197, entitled “An act to provide for the oral examination of a judgment debtor for the purpose of discovering whether he has property which may be made subject to execution on the judgment.” The plaintiff issued execution against the defendant to collect a judgment entered Feb. 2, 1925, upon the verdict of the jury rendered in plaintiff’s favor Nov. 20, 1924, for the sum of $10,864.42. The sheriff, having found no property of the defendant subject to levy and sale, made a return of nulla bona. The verdict upon which the judgment was entered included, inter alia, findings in the plaintiff’s favor for three loans alleged to have been made by him to the defendant, as follows: $2000, Jan. 30, 1923; $5000, Feb. 6, 1923; and $3000, April 4, 1923. (Pars. 2, 3 and 5 of statement of claim.) The defendant was married to plaintiff’s daughter Oct. 18, 1922, and his defence to the alleged loans was that the moneys received by him from the plaintiff were a marriage gift. (Pars. 3, 4 and 6 of affidavit of defence.)

The plaintiff in his petition avers that the defendant obtained these loans for the purchase of certain real estate in the Borough of St. Clair, this county, to which record title was taken Feb. 7, 1923, and that “for the purpose of defrauding the plaintiff and to prevent a recovery of a collectible judgment against him, had the title to said property made in the name of the defendant, Steve Homa, and his wife, Helen Homa.” The petitioner further avers that the defendant has no other property than this real estate, and concludes with a prayer for an order (1) “requiring the defendant to attend at an appointed time to be examined concerning his property, agreeably to the provisions of the Act of Assembly approved May 9, 1913, P. L. 197;” and (2) “that the court make an order after such hearing decreeing that the real estate fraudulently put in the name of the defendant and his wife shall be subject to the execution issued upon said judgment and to the payment and satisfaction thereof.” The court granted a rule to show cause why the prayers of the petition should not be granted, and the defendant has entered an appearance and filed a demurrer.

The grounds of demurrer are (1) that the petition is drawn under the Act of June 11, 1879, P. L. 129, which has been declared unconstitutional; and (2) that the plaintiff prays for an order on the defendant which would require him to incriminate himself in violation of his constitutional rights. Referring now to the first cause of demurrer, the Act of 1913 requires a plaintiff invoking its aid to aver under oath “that he believes the defendant has property which should be applied to the payment” of his judgment, whereupon the court “shall enter an order” requiring the attendance of the judgment debtor for the purpose of being placed under oath for examination by the plaintiff. The petition in this case contains the necessary averment that the plaintiff believes that the defendant has property which should be applied to the payment of his judgment, and also specifically refers to the Act of 1913 as the basis upon which he seeks relief. The first cause of demurrer is, therefore, without merit. As to the second cause of demurrer, it is sufficient to say that the Act of May 9, 1913, P. L. 197, has been declared constitutional in Pennock v. West, 23 Dist. R. 1062, and that the validity of the act has been impliedly recognized in Trainer v. Saunders, 270 Pa. 451, 453. The second cause of demurrer is, therefore, also without merit.

The proceedings under the Act of 1913 are supplementary to and in aid of an execution to enforce the judgment, and are, therefore, required to be entered to the same number and term as the judgment itself is entered. When a judgment is entered upon a verdict rendered by a jury, it is proper to resort to the record to ascertain the issue which was tried for the purpose of determining whether or not the petition has set forth a cause for relief. This has been done in the instant case, and the facts thus ascertained have been stated, so far as it has seemed necessary to a proper understanding of the object which the petitioner seeks to accomplish by this proceeding. Although the demurrer filed here is without merit, we are, nevertheless, of the opinion that if the face of the petition shows that the petitioner is not entitled to the order for the examination of the defendant, for which he prays, it should be denied. The purpose of examining a defendant, by virtue of the Act of 1913, is, as the title to it states, to discover whether he has property which may be made subject to the execution. The petitioner has averred that the only property which the defendant has is real estate, the title to which is alleged to be in the joint names- of the defendant and his wife. He can, therefore, learn nothing by the examination of the defendant which he does not already know respecting the ownership of any real estate by him or the manner in which he holds the same. The affidavit taken by the petitioner in verification of the body of the petition, and the prayer of the petition, both show that the petitioner has been advised, and, therefore, swears on belief, that the property held by the defendant and his wife by entireties can be subjected to execution process against the defendant alone if, on his examination had pursuant to an order of court, he were to admit that he had the corrupt purpose charged against him in taking title to the real estate in question. It is quite clear that property held by the defendant and his wife by entireties cannot be levied upon and sold on the judgment obtained against the defendant alone. The general principle is that “neither husband nor wife, in whom property has jointly vested, can sell or assign their individual rights therein without the joining of the other, or dispose even of the expectancy of survivorship (Beihl v. Martin, 286 Pa. 519), and creditors of either acquire no enforceable lien by obtaining judgment or title by sale on execution: McCurdy v. Canning, 64 Pa. 39. The right of each party to the present enjoyment of the estate during its continuance is not to a part but to all of it: Meyer’s Estate, supra; Meyer’s Estate (No. 2), 232 Pa. 95” Gasner v. Pierce et al., 286 Pa. 529, 532. The motive which the defendant may have had for putting the title to the property which he purchased from the proceeds of the loans made to him by the defendant into the joint names of himself and wife is not open to inquiry in this proceeding, for his own interest and his wife’s interest in the property are at stake here, and she is not a party to this proceeding, nor even charged with having been a party to the fraudulent intent alleged against her husband. It would be vain to grant an order for the examination of the defendant, for if every fact alleged in the petition were admitted by the defendant on his examination, the court would be without power to decree, as the petitioner prays, that the real estate put in the name of the defendant and his wife shall be subject to the execution issued upon said judgment and to the payment and satisfaction thereof.

At common law, a conveyance to a husband and wife created neither a tenancy in common nor a joint tenancy, but an estate by entireties, and this was so because of the rights and incapacities established by the marriage, and the contrary intention of the parties (husband and wife), though clearly expressed in the conveyance itself, was entirely immaterial. The nature of the estate created when real estate is conveyed to husband and wife jointly was not determined on any supposed intention of the parties, but on the sole ground that husband and wife, during coverture, are regarded as one person in law, and, therefore, incapable of having separate estates: Stuckey v. Keefe’s Executors, 26 Pa. 397. Whatever may be the intention of husband and wife in respect of the nature of the estate created by a deed made to them in their joint names is immaterial, because the deed alone determines that: Hetzel v. Lincoln, 216 Pa. 60, 63. Our acts of assembly enlarging the rights and increasing the powers of married women have not changed the incidents of an estate by entireties held by husband and wife, in so far as they are the result of the legal fiction of unity between husband and wife: Meyer’s Estate (No. 1), 232 Pa. 89, 93; Gasner v. Pierce et al., 286 Pa. 529, 532.

From M. M. Burke, Shenandoah, Pa.