author: Stewart, P. J.,

text:
    Pfeifle v. Bethlehem Public Library, Inc.

      Herbert J. Hartzog, for plaintiffs; Booth & Barthold, for defendant.
    April 2, 1928.
   Stewart, P. J.,

This is a case stated to determine whether plaintiffs can give a good title to land which they have agreed to sell defendant. The question depends upon the interpretation of the will of Theophilus Horlacher. From the agreed facts, it appears that testator died on Aug. 18, 1883, seized of the land mentioned in the will. He left surviving him a widow, a sister and an adopted daughter. She married George Ott. They had four children. After the death of the wife and sister, the adopted daughter and her children, who were then all of age, with their respective husbands and wives, conveyed the real estate to Robert Pfeifle, the plaintiff. Horlaeher’s will was made in two parts. The entire will is a part of the case stated. The relevant parts of the first part are:

“Item. It is my will and I do order and direct that all my real estate, except my homestead, consisting of a brick house, and lot of ground containing in front on. Fourth Street one hundred and forty (140) feet by 180 feet on Elm Street, South Bethlehem, to an alley, shall be sold by my Executors hereinafter appointed, by public sale or sales, for the best price that can be obtained for them, and to this end I give unto my said Executors full power and authority to make deed or deeds in fee simple to the purchasers as full and complete to all intents and purposes as I could' do if living: and the money arising therefrom, together with my other money shall be invested and secured by bonds and mortgages or other good and sufficient security and the income arising therefrom, to be for the use and enjoyment and comfort of my said wife Elizabeth and my said sister Eliza S. during their natural lives; and at the death of either of my said wife or my said sister; then my adopted daughter, Alice Elizabeth Horlacher (being a daughter of Samuel D. Moser) shall take the place of the deceased, and at the death of both of my said wife and my said sister, then my said homestead shall be the property of my adopted child, Alice E. Horlacher, her heirs and assigns forever, should, however, my said daughter Alice E. Horlacher die without issue, then it is my will that my said homestead shall revert back to my lawful heirs. . . .

“Item. The above is the first part of my last will and testament, and my will as to the distribution of my moneys, etc., after the death of both my said wife and my said sister, is contained in the second part of my will which is sealed separately and shall not be opened until after the death of both my said wife and my said sister.

“Item. It is my will that the homestead above described and excepted not to be sold, shall be for the exclusive use of my wife and my said sister, during their natural lives.”

That part of the will was dated Aug. 9, 1878, and was probated on Sept. 5, 1883.

The relevant parts of the second part are:

“I, Theophilus Horlacher, of the Borough of South Bethlehem in the County of Northampton and State of Pennsylvania, Yeoman, being of sound mind, memory and understanding, d'o make and publish this my second part of my last will and testament as referred to in the first part of my will to be as follows, viz: . . .

“Item 31. I give and bequeath unto my adopted daughter, Alice Elizabeth Horlacher, all that certain lot of ground, situate on the southwest corner of Fourth and Elm Streets, South Bethlehem, being 140 by 180 ft. now my homestead, together also with the southern half of the plot on Niskey Hill Cemetery where she shall have undisputed right to bury such of her friends or family as she may see proper. The homestead herein bequeathed to my adopted daughter Alice Elizabeth Horlacher, it is expressly understood that she shall have and enjoy during her natural lifetime but shall not have the right to sell the same by deed in fee simple but in case she shall die without issue the same shall revert back to my known heirs.

“All the rest and residue of my estate found in my name after all my bequests are filled and not otherwise bequeathed herein shall be the property of my said adopted daughter Alice Elizabeth herein named absolute.”

That part of the will was dated July 31, 1883, and was probated on Dec. 17, 1900.

The second part of the will should be treated as if it were a later clause of the entire will where it conflicts with the first part. In the item quoted above, he says: “The above is the first part of my last will and testament.” Then he confines the disposing part of “my will” to what he says “is contained in the second part of my will,” which he directs not to be opened until after the death of his wife and sister, and, again, in the second part, he said “this my second part of my last will and testament as referred to in the first part of my will to be as follows, viz.” Unless the words “my moneys” and “etc.” mean real estate, testator did not intend the second part of his will to cover more than personal property, and an inspection of the will shows that thirty items dispose of personal property. Only one item, No. 31, refers to the homestead. It should also be noted that there is a difference in dates. The two parts are not dated the same day. There is an interval of five years between the date of the first part and the date of the second part. However, this is not material. The two parts speak as of the date of his death. In Wikoff’s Appeal, 15 Pa. 281, the syllabus is: “It is not essential to the validity of a will that the different parts of it be physically connected: it is sufficient if they are connected by their internal sense or by a coherence and adaptation of parts.” In Price et al. v. Maxwell et al., 28 Pa. 23, the syllabus is: “Where there are two wills in some respects inconsistent, the later revokes the former only so far as they are inconsistent with each other, unless there is an express clause of revocation.” In Nelson’s Estate, 147 Pa. 160, the syllabus is: “Where a second will in express terms revokes a former will, but refers to certain bequests in the former will and re-enacts them, both wills are entitled to probate, but the executor named in the former will is not entitled to letters testamentary.” In Grubb’s Estate, 174 Pa. 187, the syllabus is: “Where a will is written in three chapters or sections on three different pieces of paper, each being signed by the testator, and all the sections being necessary to a complete testamentary disposition of the property, the three papers taken together constitute the will.” We think that under the above authorities the two parts must be considered as the testator said they were, one will. While it is not important to this discussion, there should have been one probate of the two parts, even though the testator directed that the second part “shall not be opened until after the death of both my said wife and my said sister.” The probate of a will is a judicial act. It fixes the fact of testator’s death and makes a record of his disposition by will, even though the disposition of his property may be directed to be made at a future date. It is perfectly plain that under the first part of testator’s will his adopted daughter took the homestead in fee simple. By the clause above quoted, he gave the homestead to his wife and sister for life. At that time he had no intention of giving the homestead to his adopted daughter for life. The words were “at the death of both my said wife and my said sister, then my said homestead shall be the property of my adopted child, Alice E. Horlacher, her heirs and assigns forever, should, however, my said daughter Alice E. Horlacher die without issue, then it is my will that my said homestead shall revert back to my lawful heirs.” It must be remembered that testator died in 1883. The Act of July 9,1897, P. L. 213, by its express terms, does not apply to any will made before July 1,1897, and the 14th section of the Wills Act of June 7, 1917, P. L. 403, has no application to wills made prior to Dec. 31, 1917. Hence the present will must be interpreted without reference to those acts. 'In the leading case of Mickley’s Appeal, 92 Pa. 514, the syllabus is: “If a bequest be made to a person absolute in the first instance, and it is provided that in the event of death or death without issue another legatee or legatees shall be substituted to the share or legacy there given, it shall be construed to mean death or death without issue before the testator. The first taker is always the first object of the testator’s bounty, and his absolute estate is not to be cut down to an issue for life without clear evidence of such intent.” Innumerable authorities might be cited to the same effect. Subject, therefore, to the life estate of the wife and sister, the adopted daughter could have conveyed the fee. However, five years after the date of the first part, he executed the second part, and it is contended that he cut down the fee previously granted to his adopted daughter and gave her only a life estate. In the first part he gave it to her, “her heirs and assigns forever.” In item 31 he does not use these technical words. The words are: “I give and bequeath unto my adopted daughter, Alice Elizabeth Horlacher,” &e. If there were nothing more in the item, the 9th section of the Act of April 8, 1833, P. L. 249, would be sufficient to give her a fee simple, but he said: “The homestead herein bequeathed to my adopted daughter Alice Elizabeth Horlaeher, it is expressly understood that she shall have and enjoy during her natural lifetime but shall not have the right to sell the same by deed in fee simple but in case she shall die without issue the same shall revert back to my known heirs.” It will be noted that the language just used is almost exactly like the language he used when he created the life estate for his wife and sister. This will is very inartistically drawn, and the case affords another striking example of the foolishness of employing stupid draughtsmen to write wills. Unfortunately, each testator dies without knowing how incompetent the draughtsman was, and contests over wills rarely attract attention beyond the circle of those immediately interested. We must endeavor to find out what the testator meant. In Tarter’s Estate, 291 Pa. 458, the syllabus is: “A devise will be construed to pass a fee simple title unless it appears, by a devise over, or by words of limitation or otherwise in the will, that testator intended to give a less estate. This rule applies, even though, in a later part of the same sentence, a life estate in another property is devised to the same person. . . . Precedents are of little value in the construction of wills; under dissimilar circumstances and with different contexts, the same words may express various intentions, and, hence, be construed differently. Where words sufficient to vest an absolute estate are used in a will, such interest will not be cut down by a subsequent provision which does not indicate a clear intent to take away the estate previously given.” In that case, Mr. Justice Simpson follows two well-considered cases. In Cross et al. v. Miller, 290 Pa. 213, the syllabus is: “Where it is apparent that the dominant purpose of the testator is to devise a fee simple estate, and subsequent language indicates merely a secondary or subordinate intent to strip the estate thus given of one or more of its inherent attributes, the law will hold that this cannot be done.” In that case, the attempt was made to control the descent of a title she gave in fee. It was held that this could not be done. In the other case, Reiff v. Pepo, 290 Pa. 508, the syllabus is: “Where words sufficient to vest a fee are first used in a devise, and those which follow apparently indicate a contrary intention, the court must, in each case, after considering the whole will, decide as to the primary general intent of the testator; if it be to give an absolute estate, then subsequent words expressing a secondary and particular intent cannot restrict the gift or strip the fee of its ordinary attributes; but if, after considering .the will as a whole, the court finds that the devise expresses an unequivocal intention to give less than a fee, and that what otherwise might be construed as a fee was intended only as a less estate, it must be held accordingly. . . . Where a testatrix ‘gives’ to her grandson, a boy, eleven years of age, a house and lot, and in the same clause says ‘he is not to sell said house and lot, and after his death the same to belong to and invest in and become the property of his children, share and share alike, to be theirs absolutely,’ the grandson takes an estate for life and not a fee in the house and lot.” Mr. Chief Justice Moschzisker very carefully goes over all the cases on this general subject and the review is most helpful.

We must also note another fact. Testator said his adopted daughter “shall not have the right to sell the same by deed in fee simple.” Standing alone, that clause amounts to nothing. If he gave an estate in fee simple, one of its inherent attributes, the power to sell, cannot be taken away. That principle is well settled. In Reifsnyder v. Hunter, 19 Pa. 41, Mr. Justice Gibson said: “ ‘I do give and bequeath to my son John and his heirs’ are the words of the first clause of this devise. No one could limit a fee simple more artistically and precisely. ‘With this proviso,’ he continues, ‘that my son John shall not have any right nor power to sell nor convey the said farm,’ an impotent attempt to give title to property without the incidents of ownership. Again: ‘But at his death, all the right, title and interest shall be and remain perfect in his lawful heirs.’ That expresses, in other words, what he had expressed before, and signifies no more than his notion of the intended disability. But whatever his plan, he has used technical words without anything to qualify their meaning, except ignorance of his inability to prescribe an impossible condition; from which it would be unsafe to infer that he stumbled on them by chance or to mould the fee so as to give effect to a conjectural intention.” In the late case of Pattin v. Scott, 270 Pa. 49, the same principle was applied where the time of sale was limited to twenty-five years. We have already referred to the omission of the words in item 31, “her heirs and assigns forever,” but there is another very significant omission or blunder in this item. The case stated states that the adopted daughter has four children. Suppose she still owned the property and died today. Would these children take? Testator does not use any of the expressions which are found in most of the will cases that have been cited to us. He does not, for example, say that after his adopted daughter’s death the property shall go to her children, or to her issue, or to her heirs, or use words of that kind. If he had so provided, we would have the question presented whether his adopted daughter had an estate tail, which, under the Act of April 27, 1855, P. L. 368, would be turned into a fee simple. The only contingency he provides for is that if “she shall die without issue,” which, in all human probability, will never take place. We can infer, with almost absolute certainty, that he wished his adopted daughter’s issue, heirs or children to have this property after her death. That inference results from the devise of the property in fee simple as expressed in the first part of the will, from the Act of 1833, supra,, and from the residuary clause, all of which show his intention that his adopted daughter should have everything, as he said in the residuary clause, “absolute.” In fact, everything that we can discover in the two parts of the will, except “she shall have and enjoy during her natural lifetime,” shows that his dominant purpose was to give her a fee simple, except that she could not sell same, which clog, under the law, was ineffectual. However, is the fact that he did not give the property to his daughter’s issue in so many words important? Under the authorities, the gift to her issue is implied. In Beilstein v. Beilstein, 194 Pa. 152, the syllabus is: “A devise over in case a daughter should die ‘without leaving a family’ is an implied devise to her family if she should leave one. A devise to a daughter of the income of real estate ‘as long as she lives, but should she die without leaving a family,’ then over, means death without issue or heirs of the daughter’s body, and this refers to an indefinite failure of issue, which creates a fee tail in the first taker, enlarged to a fee simple by the statute.” To the same effect is Lippincott’s Estate, 276 Pa. 283, and List’s Estate, 283 Pa. 255. With this interpretation, the adopted daughter takes a fee tail, enlarged to a fee simple under the Act of April 27, 1855, P. L. 368. The authorities in Pennsylvania supporting this view are numerous. See Eichelberger v. Barnitz, 9 Watts, 447; Hackney et al. v. Tracy et al., 137 Pa. 53; Potts v. Kline, 174 Pa. 513; Shoup v. De Long, 190 Pa. 331; Wilson v. Heilman, 219 Pa. 237; Leonard v. Leister, 233 Pa. 475; Kyner v. Hockersmith, 235 Pa. 586, and Commonwealth Title Ins. and Trust Co. v. Gross, 261 Pa. 476. Two cases may be referred to which, on their facts, are very similar to this case. In Grimes v. Shirk, 169 Pa. 74, the syllabus is: “Testator directed as follows: ‘I give and devise to my adopted daughter Hester ... all that certain messuage . . . for and during the term of her natural life. And after the death of my said adopted daughter, I give and devise the .reversion or remainder of the real estate herein devised to her, to her lawful issue, to have and to hold the same in common to them, their heirs and assigns forever. And in case the said Hester should die without leaving lawful issue, then the aforesaid real estate shall revert to my estate, and I give and devise the same to my heirs under the intestate laws:’ Held, that Hester took an estate in fee in the land devised to her.” In Hannon v. Fliedner, 216 Pa. 470, the syllabus is: “Testator, after giving a life estate to his wife and sister-in-law, directed as follows: ‘After the decease of my wife and sister-in-law and the termination of the life estates to them herein before mentioned, and subject to the same, I give, devise and bequeath to my daughter, her heirs and assigns all my property, real, personal and mixed of every kind and description, but in case of the decease of my said daughter, without lawful issue surviving her, then and in such case I give, devise and bequeath all my property and estate of every description, real, personal and' mixed to my son-in-law, his heirs and assigns forever:’ Held, that the daughter, surviving her father, took an estate tail which, under the Act of April 27, 1855, P. L. 368, was converted into an estate in fee simple.” We have already referred to the. residuary clause, and it is: “All the rest and residue of my estate found in my name after all my bequests are filled and not otherwise bequeathed herein shall be the property of my said adopted daughter Alice Elizabeth herein named absolute.” Testator’s dominent purpose was to give everything not otherwise bequeathed to his adopted daughter “absolute.” If there was any remainder or reversion of the homestead, it was to be hers under this clause. The case is somewhat like Smith v. Bloomington Coal Co., 282 Pa. 248, the syllabus of which is: “Where testator first devises certain real estate to his wife expressly for life and subsequently in the same item devises and bequeaths to her in general terms the residue of his estate, including real estate other than that thereto devised to her for life, and then enjoins upon her to make a will leaving such residue equally between his and her heirs, the wife takes an estate in fee in the residue.”

But it is contended that an examination of the will will show that testator’s dominant intent was to give his adopted daughter only a life estate, and that he intended to cut down the fee in the first part of his will by the clause above quoted in the second part of his will. The leading case is Urich v. Merkel, 81 Pa. 332, the syllabus of which is: “A devise was ‘to my son John and to his heirs all my farm, . . . together with all the buildings, . . . farming stock and utensils belonging to the farm, unto the said John and to his heirs.’ There were similar devises to other children. The testator further declared that none of his children should sell their land or encumber it, ‘but the land should remain free for their children or heirs, and my said children shall have the use, income and profits . . . during their lifetime.’ He gave his children the right to make wills, so that either of them should ‘have privilege to dispose of their several legacies by will, but not otherwise:’ Held, that John took but a life estate. The intention of the testator, gathered from all parts of the will, was to give a life estate, not merely to restrict the devisee’s power over a previously given fee simple.” The real discussion is contained in Urich’s Appeal, 86 Pa. 386. That case has been followed many times. See Shalters v. Ladd et al., 141 Pa. 349; Shower’s Estate, 211 Pa. 297, and Smith v. Piper, 231 Pa. 378, and McElwain v. Whitacre, 251 Pa. 279. A list of these authorities is given in Reiff v. Pepo, 290 Pa. 512. See, also, Field’s Estate, 266 Pa. 474; Wettengel’s Estate, 278 Pa. 571; Deeter’s Estate, 280 Pa. 135; Robinson’s Estate, 282 Pa. 531, and Stanton et al. v. Guest et al., 285 Pa. 460. We have carefully read those cases, and, while it is sometimes hard to distinguish them, we think that no one of them rules the present case.

It is also contended that the rule in Shelley’s Case does not apply. In the leading case of Guthrie’s Appeal, 37 Pa. 9, the syllabus is: “Although the rule in Shelley’s Case is the law of Pennsylvania, and is to be enforced whenever it is truly applicable, there is no reason why it should be more extensively applied here than in England. In every case to which it is supposed to apply, it is always a precedent question whether the limitation of the remainder is made to the ‘heirs in fee’ or ‘in tail’ as such, and the rule is silent until the intention of the grantor or devisor is ascertained. If the intention of the testator be that the remaindermen should take as the heirs of the grantee or devisee of the particular freehold, instead of themselves becoming the root of a new succession, the rule is applied, although it may defeat a manifest intention that the first taker should have but an estate for life. In searching for this intention, the inquiry is not whether the remaindermen are the persons who would have been heirs if the fee had been limited .to the ancestor, but in what character the donor intended they should take the remainder, whether as heirs of the first taker or, originally, as the stock of a new inheritance.” That case has been followed down to the last case cited. In Stout v. Good, 245 Pa. 383, Mr. Justice Moschzisker said: “The rule governs whenever the will shows a clear intent to vest a fee simple or a fee ■ tail in the heirs of the first taker, qua such heirs, even though the interest of such first taker is expressly stated to be but a life estate, and even though the technical word ‘heirs’ or the phrase ‘heirs of his body’ is not used: Lauer v. Hoffman, 241 Pa. 315. But when neither the word nor the phrase in question is present, then, before the life estate can be enlarged to a fee, it must clearly appear from the language employed that the remaindermen are to inherit from the original devisee and not to take as devisees directly from the testator, particularly when, as is so often the case, the application of the rule will have the effect of defeating the testator’s express declaration that the first taker shall have but a life estate: Kemp v. Reinhard, 228 Pa. 143. Therefore, in the absence of technical words of limitation, the rule should never be applied unless a paramount intent to make the first devisee a source of inheritable succession plainly appears; but where the language used brings the case within the rule, the fact that the testator desired that it should not operate is of no importance: Grimes v. Shirk, 169 Pa. 74, 76; Lauer v. Hoffman, supra; Shapley v. Diehl, 203 Pa. 566, 569.” Again he said: “While ‘issue’ is most often used as a word of limitation, yet it is not technically so to the same degree as ‘heirs’ or ‘-heirs of his body,’ and it yields readily to a context that indicates its use as a word of purchase: Taylor v. Taylor, 63 Pa. 481, 483; Beckley v. Reigert, 212 Pa. 91, 93; O’Rourke v. Sherwin, 156 Pa. 285, 291; Robins v. Quinliven, 79 Pa. 333; Powell v. Board of Domestic Missions, 49 Pa. 46, 53. Where the devise is to one for life, with remainder to his children, then a subsequent reference to the death of the life-tenant ‘without issue’ or ‘leaving no issue’ ordinarily will be construed to mean such issue as those previously mentioned, and not an indefinite failure of issue: Curtis v. Longstreth, 44 Pa. 297, 302-3; Sheets’s Estate, 52 Pa. 257, 268; Carlisle v. Carlisle, 243 Pa. 116. The rule in Shelley’s Case is not a rule of construction, but of law, and it is never applied until the meaning of the testator is first ascertained: Yarnall’s Appeal, 70 Pa. 335, 340. If the words of the will show that the testator intended the remaindermen to take directly from him, and not by inheritance from the devisee of the life estate, then the rule has no application: Kemp v. Reinhard, 228 Pa. 143; on the other hand, if they show a contrary intention, the rule applies: Lauer v. Hoffman, 241 Pa. 315.” English’s Estate, 270 Pa. 1, is also an interesting case, but it was decided on the effect of the Act of July 9, 1897, P. L. 213. We are of opinion that the rule applies here, and that Alice Elizabeth Horlacher took an estate in fee simple.

And now, April 2, 1928, judgment is entered in favor of the plaintiffs and against the defendant for the sum of $18,000.

From Henry D. Maxwell, Easton, Pa.


source: Caselaw Access Project

author: Reno, P. J.,

license: Public Domain

text:
    Ferrell v. Ferrell.

      M. P. Schantz, for libellant.
    May 28, 1928.
   Reno, P. J.,

The libel in divorce is signed by Baxter B. “Ferrell,” and he names the respondent as Margaret “Ferrell.” The parties were so designated in the libel and the sheriff returns that he served Marguerite “Ferrell.” The motion for the appointment of the master designated the parties as Baxter “Ferril,” libellant, and Marguerite “Ferrel” as respondent. The master’s notice to the respondent designates the parties as Baxter “Ferril,” libellant, and Marguerite “Ferril,” respondent. The sheriff returns that he was unable to find Marguerite “Ferrill.” This is a grave defect. The respondent was Marguerite “Ferrell” and the master’s notice and a sheriff’s search for Marguerite “Ferril” or Marguerite “Ferrill” and the subsequent posting of that notice in the office of the prothonotary were not effective as constructive notice to her of the time and place of the master’s hearing.

• Moreover, the notes of testimony, certified to by the master, are entitled Baxter “Ferril” v. Marguerite “Ferril.” A person designated as the libellant was called and his testimony was taken that he was designated as Baxter “Ferril.” The libellant and respondent are consistently referred to in. the testimony as “Ferril.” In short, the record is in such form and condition that it will not support a decree of divorce for Baxter Ferrell against Marguerite Ferrell. And, in this connection, it may be well to observe that the blank decree of divorce which was submitted to the court for its signature designated the parties as Baxter “Ferril” and Marguerite “Ferril.” A decree in that form would only serve to complicate matters.

Now, May 28, 1928, the proceedings of this case from and after the appointment of the master are stricken from the record with leave to libellant to proceed by giving proper notice to respondent and retaking testimony before the master.

Prom Edwin E. Kohler, Allentown, Pa.


author: Stern, P. J.,

text:
    Gorson’s Case.

      Henry S. Drinker, Jr., for Board of Censors.

      Daniel G. Murphy, for respondent.
    Jan. 29, 1929.
   Stern, P. J.,

The petition of the Committee of Censors, upon which a rule was granted on the respondent to show cause why he should not be disciplined, sets forth alleged improper professional conduct on the part of the respondent in five cases in which he represented the respective plaintiffs.

In these cases, the court, upon consideration of the testimony taken at the hearing before the court and also that taken before the Committee of Censors, finds the facts to be as follows:

1. The case of Herbert A. and Emma M. Hillgrove.

These parties were plaintiffs in a suit against the Yellow Cab Company, the wife plaintiff having sustained an accident on July 16, 1923. A verdict was obtained on June 11, 1924. An employee of the respondent reported to clients that a new trial had been granted, or at least asked for by the defendant, and suggested that a settlement was desirable. The plaintiffs finally agreed to settle for $600, and a month later received from the respondent a check for $300, representing their half of the alleged recovery. As a matter of fact, the respondent, on Sept. 22, 1924, received a check from the defendant of $1592.96, the check being payable to his order as attorney and representing the verdict and costs. A year or more later, the plaintiffs learned that no new trial had been granted and that they had not received the proper amount due. them. Complaint having been made to the Committee of Censors, the respondent paid an additional sum of $450 to the plaintiffs on Oct. 6, 1926.

The respondent’s defense in this case was that the whole matter was transacted by one Smuckler, a former employee in his office, whose present whereabouts are stated to be unknown. The respondent stated that he had no files on the case, that he never kept any books except a check-book, and that the check-book for the period in question had been destroyed. His position was that he thought that Smuckler had paid clients what was due them out of cash in the office, although he admitted that he himself was the only person who could draw checks on his bank account. Incidentally, he admitted that he kept only one bank account, in which he mingled his own moneys with those obtained for clients. The respondent’s testimony was extremely hazy and unconvincing, and the court finds the facts in this case as above stated.

2. The case of Albert and Rose Kravis.

These parties were plaintiffs in a suit against Armour & Company, the wife plaintiff having sustained injuries in an accident. A verdict of $1000 was obtained in December, 1926, and the respondent, as attorney for his clients, received a remittance from the defendant of $1040.80, under date of Jan. 20, 1927. He had an interview with his clients on or about Feb. 3, 1927, in which he stated that he had just received the cheek the day before, that it had not yet cleared, and that they should call the following Saturday. Upon their visiting him on the following Saturday, he proposed to settle with them by paying them $215, stating that there had been expenses of $285 (including doctor bills) payable out of their half share of the recovery. Upon their complaining of this settlement, he reduced the charges to $150, which was the amount stated to be necessary to pay the doctors. At first, the clients agreed to take the $350 thus offered, and the respondent tendered them three checks, one for $350, one for $100, and one for $50, asking them to endorse the two last named checks and to return them to him. The $100 cheek was supposed to be for the services of a Dr. Tunitzky, and the $50 check for the services of a Dr. Blumsweig. The respondent claimed that he had been subjected to a cost of $25 for investigating the jury, and to other expenses amounting to $10 or $15. As a matter of fact, Dr. Tunitsky had told the plaintiffs he would charge $50, and it was only at the respondent’s suggestion that he increased his bill to $100. As to the charge of Dr. Blumsweig, he did not attend the plaintiffs and had nothing whatever to do with the case. The plaintiffs finally refused to accept the sum of $350 as their net recovery, and a violent and protracted dispute with the respondent followed. At a later period, a settlement was attempted with the plaintiffs through the instrumentality of Dr. Tunitzky of $500, which was refused, the plaintiffs demanding interest, and finally, on June 20, 1928, the respondent paid the plaintiffs $681 in full settlement of their claims.

In this case, also, the respondent was unable to produce any records or books, stating that he kept no books. The basic fact is that the respondent retained money belonging to his clients for a period of about seventeen months, which delay in payment was due to a dispute with his clients over the unjust charges which he attempted to assess against them. It is clear that the proposed payment of $100 to Dr. Tunitzky was excessive, that Dr. Blumsweig was not entitled to any payment, and it is further a fact, as the court finds, that the respondent had not spent any money for investigating the jury. Moreover, the respondent, by his own admission, had paid out no witness fees, but he received and retained money paid to him on that item by the defendant in the suit. There is considerable confusion in the evidence throughout as to the various items in controversy, but one cannot read the testimony without coming to the conclusion that the respondent wished to pay to his clients as little as possible, and that, in bargaining with them to that end, he set up various claims of expenses and outlays which were false and unjustified and upon which he himself did not ultimately insist.

3. The case of Eva M. Fox.

This party was a plaintiff in a suit against the City of Philadelphia - to recover damages for an accident sustained by her in December, 1924. As a result of a verdict, the respondent received a mandamus upon the City in the sum of $1000 on Feb. 4, 1926. Subsequently the respondent told his client that he could settle the case with the City for $200, and she agreed that she would settle for that amount. A month later, he reported to her that he had received the $200, out of which she was to get $100, and he made her various small payments on account, some by check and some in cash. About two years later, the client accidently learned that the respondent had in fact received $1000 from the City, and, after the Committee of Censors had taken up the matter, the respondent, in May, 1928, paid to his client the additional sum of $400.

It thus appears that in this case the respondent misrepresented to his client the amount due to her, kept from her a substantial sum of money for a period of two years, and then made restitution only after investigation by the Committee of Censors had begun. The respondent’s defense in this case was that he did not receive the cash on the mandamus until Feb. 23, 1927, that his client knew that he had the money, and that she had asked him to keep it for her. He frankly admits that when she demanded the balance due to her, he did not have it, that he had spent it, and that because of the fact that he had kept her money for so long a period he finally gave her the full half-part due to her without deduction of costs that she should otherwise have paid. The court finds as a fact that his client had no such understanding with him, as contended for by the respondent, and that his retention of the money was without her knowledge or consent. Moreover, his statement of his having spent the money is in itself a confession of a misuse of trust funds.

4. The case of Elizabeth Johnson.

This party had a suit against the Philadelphia Rapid Transit Company arising out of an accident sustained by her. The respondent on behalf of this claim recovered a verdict of $250, interest thereon of $8.54, and sundry items of costs, and was paid $279.34 by the defendant on June 17, 1926. He sent to his client two checks on July 20, 1926, one of $82.50 for herself, the other of $20 for her physician. The respondent attempts to explain this settlement by the statement that he had made various outlays of costs, and also expenditures of $25 for “jury service” and $25 for investigation of the case. The court finds as a fact that no such payments of $25 each were made by the respondent, that the charges were unjustified, and that, therefore, the respondent did not make an adequate accounting or settlement with his client in this case.

5. The case of Albert Traub.

This party had a suit against the Philadelphia Rapid Transit Company arising out of an accident in which he was injured on Feb. 14, 1924. A verdict was recovered of $1000, which was reduced by the court in banc, and the respondent received from the defendant the sum of $803.86, on or about July 29, 1925, in settlement of the case. The respondent, however, reported to his client that the case was being appealed and that he had settled it for $500. He paid to his client $250, less some deductions for witness fees. The respondent attempts to justify his settlement with his client by stating that he, the respondent, was to receive 50 per cent, of the gross recovery, or about $400, and that from the half share due the client he deducted $100 for the bill of the physician, witness fees amounting to $10 or $20, $5 for subpoenaing the records of the hospital, $6.50 for costs of suit and $25 for investigation of the case. The court finds as a fact that the $25 outlay for investigating the case was not in fact made. Moreover, the calculations of the respondent as testified to by him are not in accord with his version of the facts as set forth in his supplemental answer to the petition of the Committee of Censors.

It thus appears from the facts established by the five cases in question that the respondent kept no books and practically no records, that he maintained only a single bank account, in which he mingled his own moneys with those belonging to his clients, that at least in one instance he did not have money belonging to a client when demanded by her, that he attempted to make settlements with his clients by the payment to them of as little as possible, and in order to accomplish this purpose made claims of outlays and expenses which in fact had not been incurred by him, that he misrepresented to clients the amounts obtained by him on their behalf, and unlawfully retained moneys due to them. On the whole, the court is compelled to conclude from the testimony that the respondent had no adequate conception of his duties to clients with reference to moneys collected for them, and apparently no realization of the fact that he was to all intents and purposes a trustee of such moneys, and as such bound to a complete and exact accounting.

It certainly is not necessary, nor would it serve any useful purpose, to write a disquisition on the standards and the traditions of the law as a profession, nor to reiterate the platitude that those who minister at her altar must be above reproach. The derelictions of the respondent in the present case were not violations of any abstruse or involved rules of ethics as to which opinions might differ, but were in disregard of the elementary principles of fair dealing. Under such circumstances, the court is obliged to enter the following order:

The rule of the Committee of Censors is made absolute, and the prothonotary is directed to strike from the roll of attorneys of the Courts of Common Pleas of Philadelphia County the name of Harry A. Gorson, the respondent, and to give notice of this action to the Orphans’ Court of Philadelphia County and to the Supreme and Superior Courts of Pennsylvania.


text:
    Melnick’s Case.

      Henry S. Drinker, Jr., for Board of Censors.

      William A. Glasgow, for respondent.
    Jan. 29, 1929.
   Stern, P. J.,

The petition of the Committee of Censors, upon which a rule was granted on the respondent to show cause why he should not be disciplined, sets forth alleged improper professional conduct on the part of the respondent in four cases in which he represented the respective plaintiffs.

In these cases, the court, upon consideration of the testimony taken at the hearing before the court and also that taken before the Committee of Censors, finds the facts to be as follows:

1. The case of James Mason.

This party suffered an accident, and a verdict was recovered in his favor in the amount of $1700. The respondent, as his attorney, was paid by the Indemnity Insurance Company of North America, on or about Oct. 25, 1926, the sum of $1746.80, representing the amount of the verdict and costs. On Nov. 5, 1926, the respondent had a settlement with his client in which he made out a check to Mason for $800, and had him endorse it in blank and return it to him, Mason apparently not noticing the amount of the check, and then he paid to Mason $375. After the Committee of Censors had started an investigation of this case, the respondent, on Sept. 8, 1928, made an additional payment to Mason of $205, and on Oct. 18, 1928, an additional payment of $220.

The respondent’s defense in this matter was that he was entitled to a fee of $850 and that various outlays and expenses brought down the amount due to his client to $633. (Included in the claim of outlays was an item of $40 to George Phillips, an employee of the respondent, and another item of $40 to David Melnick, a brother of the respondent, these being payments alleged to be for investigation of the case and “trial assistance.”) The respondent claims, somewhat inconsistently with this assertion of a less amount being due to Mason, that the original check of $800 was intended by him to be in the nature of a receipt. He states that the reason why he originally paid his client only $375 was because Mason told him that he was going south and asked him to hold the balance for him and meanwhile to look after some of his business affairs, and the respondent asserts that the delay in the ultimate settlement was due to the fact that he was unable to locate Mason.

The court finds that the two alleged expenditures of $40 each, above referred to, were unjustified charges. The court further finds as a fact that the respondent could at all times have located his client, that the latter did not request the respondent to hold any part of the money for him, that Mason was not informed by the respondent as to the amount actually due to him, that the respondent originally had no intention of paying the balance due (whether $258, as now claimed by the respondent, or $425, as subsequently actually paid by him), and that the balance was paid two years later only because of the starting of the investigation by the Committee of Censors.

These conclusions of the court are strengthened by a consideration of the methods which the respondent saw fit, and evidently thought it necessary, to employ in order to convince the Committee that he had made a proper settlement with his client. At the hearing before the Committee, the respondent produced a private memorandum book, which purported to show in itemized detail a number of payments made by him to Mason of $15 a week, beginning May 26, 1926, continuing until Nov. 1, 1926, and aggregating $360, as well as other alleged payments made in the case to doctors, to Phillips and for witness fees. The respondent testified before the Committee that the entries in this book had been made by him at or about the times therein indicated, and that he had actually made the payments to Mason as thus recorded. As a matter of fact, and as he afterwards expressly admitted both to the Committee and in open hearing before the court, the entries in this book were false and fictitious, having been made by him on the very day he appeared before the Committee, and no such payments had in fact been made. The respondent further admitted that he had tried to induce his client to testify before the Committee that the respondent had made the payments to him as set forth in the memorandum book.

2. The ease of Stanley Skladzen.

This party suffered an accident on May 19, 1926, and, as a result, had a claim against the West Jersey Sand and Supply Company. There were claims of two other persons arising out of the same accident, and the respondent, representing all three claimants, made a “group settlement” in the sum of $2000. He then made individual settlements out of this amount with his three clients. As far as Skladzen was concerned, the respondent made out a cheek to him, dated Jan. 12, 1927, for $375, and had his client endorse it in blank and return it to him, the client apparently not noticing the amount of the check. The respondent then gave Skladzen $275 in cash and $25 for the doctor’s bill. The release given in the Skladzen case to the insurance company which paid the $2000 called for $800. After the Committee of Censors had started its investigation into the conduct of accident litigation in Philadelphia, an employee of the respondent brought to Skladzen another $100, asking him to say that in 1926 he had received small payments of $10, $15 and $20 a week, amounting in the aggregate to $100.

The respondent’s version of the settlement with Skladzen was to the effect that out of the $2000 received in the group settlement, he had paid to each of the other two claimants $300, to a physician in the case $105, for costs of the suits $19.65, and that his own fee was $1000, leaving a balance of $275 for Skladzen, who, therefore, received, according to this calculation, all to which he was entitled. One’s confidence in this position, however, is weakened not only by the fact that the respondent had procured Skladzen to endorse a cheek for $375 in blank and return it to the respondent but by the more significant and sinister circumstance that in this, as in the Mason case, the respondent produced before the Committee of Censors his private memorandum book purporting to show various small payments made to Skladzen during the period from May 23 to Dec. 24, 1926, aggregating about $100, and he testified that he had advanced these amounts to his client and that is why he gave to him only $275 in cash instead of the $375 called for by the check. Later, however, the respondent admitted that the entries in the memorandum book were false and made by him for the purpose of deceiving the Committee. The respondent further admitted that he had told Skladzen to go before the Committee and testify to the alleged instalment payments in corroboration of the respondent’s testimony and of the entries in the memorandum book. As a matter of fact, Skladzen did so testify, but afterwards in open court admitted the truth.

3. The case of Charles Potts.

This person was in an accident on June 4, 1927. The respondent procured a settlement of the case for $150, but Potts claims that the respondent reported the settlement to him as $100 and paid him $40, representing half of the alleged amount recovered, less $5 costs and $5 to cover one-half of the doctor’s bill. The respondent’s defense is that while the settlement was for $150, he told Potts that the outlays had been such that they would have to divide on the basis of $100, to which Potts agreed. The respondent also claimed that he had given a check of $15 to George Phillips, an employee in his oifice, and that Phillips stated that he had cashed this check and turned over the proceeds to Potts’s wife.

While there is some question as to whether Mrs. Potts received the $15, and while the contention of the respondent that he paid $55 to his client is not exactly consistent with his position that there was to be a division on the basis of a recovery of $100 (especially as he calculates his own net fee in the case as $63.95), nevertheless the amounts involved are so comparatively trifling and the exact circumstances so subject to doubt that this case is disregarded by the court in the present proceedings.

4. The case of Nicholas Buccieri.

In this matter, the infant son of one Mary Buccieri had an accident. According to her testimony, the respondent told her that the case had been settled for $100 and gave her $50, he agreeing to pay, in addition, the doctor’s bill of $18. The respondent’s version is that he had made a “group settlement” of four cases, including this one (the cases being entirely unrelated to one another), for $475; that he had paid to the other claimants $135, $5 to one of the doctors, $18 to the doctor for the Buecieri boy, as above stated, $25 to a person who had brought in one of the cases to him and had investigated it, $15 to another person who had brought in and investigated the Buecieri case, and $24.20 for costs, a total of $222.20. He contended that Mrs. Buccieri had signified her willingness to accept $50 and that he, therefore, paid her that amount, leaving the sum of $202.80 remaining as his fee in the entire transaction. In a group settlement of this kind it is practically impossible to determine the proper amount to which each claimant is entitled, and while the two payments of $25 and $15 to the persons who brought the cases to the respondent and who, he says, investigated them for him, are clearly open to criticism as charges made against the clients, nevertheless the court disregards this case in the present proceedings.

Taking into consideration, therefore, only the Mason and Skladzen cases, it appears from the facts, as found by the court, that the respondent withheld from these clients moneys of which he was to all intents and purposes a trustee, that he made restitution only after the expiration of from one and one-half to two years and after the Committee of Censors had started its investigation into the conditions of accident litigation in Philadelphia, that in the proceedings before the Committee he made fictitious entries in his books, testified falsely and suborned his clients to give similar false testimony under oath. The only excuse that he offers in regard to these latter actions is that he was “greatly perturbed, confused and frightened.” Confusion and fright, especially when, as claimed by the respondent, they did not arise from any misdeeds or consciousness of wrongdoing on his part, are certainly not justification for his conduct in the proceedings before the Committee. On the whole record, no court, however disposed to leniency, could make any but one order.

The writer avails himself of this opportunity to express disapproval of so-called “group settlements.” In its report to the Law Association of Philadelphia, the Committee, while 'pointing out some of the dangers and weaknesses of the system, expresses the opinion that “the manifest advantages of such practice to all concerned more than outweigh its disadvantages. Such settlements should, it is, therefore, believed, be encouraged-. . . .” Of course, the Committee gave to this subject considerable study, and opinions in regard to the matter may fairly differ, but probably no better illustration of the likely and almost inevitable abuses of the system of group settlements can be found than is disclosed by a reading of the testimony in the present case. It is unnecessary to discuss the subject at length, because that is done by the Committee in its report, but it may not be amiss to point out and to stress one fundamental vice which is inherent in group settlements, and that is, that instead of a plaintiff’s battle being confined to the person who should be his sole opponent, namely, the defendant, he is forced by a group settlement into struggle and competition with all the other plaintiffs represented by his attorney and participating in the settlement. When a lawyer represents a client’s claim, it is his duty to handle that claim on its own merits, entirely free of, and unimpaired by, any clash with the unrelated claims of other clients in his office; and for a lawyer by a group settlement to subject a client to such a conflict and to put himself into a position of temptation in the way of discrimination between various clients — bowing to the obstinate and determined and overriding the weak and inarticulate — is to establish a situation that, in the opinion of the writer, is inimical to the best traditions and standards of the relationship between lawyer and client.

In regard to the present respondent, the court enters the following order:

The rule of the Committee of Censors is made absolute and the prothonotary is directed to strike from the roll of attorneys of the Courts of Common Pleas of Philadelphia County the name of Samuel Melnick, the respondent, and to give notice of this action to the Orphans’ Court of Philadelphia County and to the Supreme and Superior Courts of Pennsylvania.


author: Martin, P. J.,

text:
    Levine v. William C. Hesse, Jr., & Co.

      Tailor, Robey, Hoar & Nicholson, for plaintiff.

      William, A. Gray, for defendants.
    Oct. 1, 1928.
   Martin, P. J.,

Defendants were stock brokers and purchased stocks for plaintiff, who paid them for the purchases by delivering to them some shares of stock he owned and paid the balance of his indebtedness in cash. „

Defendants failed to deliver the stocks they purchased for plaintiff, and diverted the money he paid them and the stock he deposited with them to other purposes.

Plaintiff instituted a suit in assumpsit to recover the money paid by him to defendants and the value of the stock he deposited with them which they converted to their own use.

A statement of claim was filed, averring that defendants were copartners, trading under the name of William C. Hesse, Jr., & Co., engaged in the business of brokers; that plaintiff employed them as his brokers to purchase the stocks specified in the statement of claim; that pursuant to his orders, defendants purchased the stocks on margin; that plaintiff delivered to defendants ten shares of “Wrigleys” of the par value of $520; that it was agreed that this stock would be held by defendants as collateral for the balance due by plaintiff on account of the purchase price of the stocks bought by defendants for plaintiff; that on Oct. 20, 1926, plaintiff had a cash balance to his credit with defendants amounting to $1189.62, and there was a balance due by plaintiff to defendants of $3448.13 for stocks bought for him by them; that plaintiff paid defendants the entire balance due by him, including defendants’ commission of $43.37; that after deducting the commission there remained $4494.38 to apply in payment for the stocks defendants had purchased for plaintiff; that plaintiff made frequent demands upon defendants for delivery of the stocks for which he had paid in full, but defendants wilfully and maliciously neglected, failed and refused to deliver the stocks or to return the purchase money and the ten shares of Wrigley stock; that defendants did not apply the sum of $4594.38 to pay the balance due on the stocks purchased for plaintiff, but, with intent to defraud plaintiff, wilfully and maliciously and in reckless disregard of the rigliíts of plaintiff, appropriated the money and the ten shares of “Wrigley” to their own use and benefit; that the fair market value of the ten shares of “Wrigley” at the time of the conversion was $530.

Plaintiff claims $5114.38, with interest from Oct. 20, 1926.

Judgment was entered against the defendant, William C. Hesse, Jr., for want of an affidavit of defense.

The defendant, William B. Potts, filed an affidavit of defense, admitting the payment of the money and the delivery of ten shares of “Wrigley” to the partnership of William C. Hesse, Jr., & Company, but denying that he had any personal connection with the transaction, which was made in the usual and customary course of business of the partnership. He admitted that the balance due for the purchase of the stocks by defendant was paid by plaintiff to the firm in the regular course of business; but denied that he had any personal connection with the transaction or that the payment was made to him, but averred that payment was made to the partnership in the usual and regular course of business.

He admitted that the commission of $43.37 was paid to defendants by plaintiff, but averred that it was paid to the partnership. He denied that demand was made upon him for the delivery of the stocks or the return of the money or that he wilfully and maliciously neglected, failed or refused to deliver the stocks or the purchase money or the ten shares of “Wrigley.” He also denied that he wilfully and maliciously, with reckless disregard of the rights of plaintiff, converted and appropriated the sum of $4594.38 and the ten shares of “Wrigley” to his own use and benefit; but there is no denial of these charges against the partnership.

It is further averred in the affidavit of defense that a petition in involuntary bankruptcy was filed against' the defendant, William C. Hesse, Jr., and this defendant, William B. Potts, individually and as copartners trading as William C. Hesse, Jr., & Company, in the United States Court for the Eastern District of Pennsylvania; that they were adjudged bankrupts, and that a referee and trustee were appointed by the court, followed by hearings for the presentation of claims, and that the matter was proceeded with so that there was pending an application for the discharge of William B. Potts from bankruptcy; and that deponent had been advised and avers that the bankruptcy proceedings constitute a full, complete and legal defense to the action instituted by plaintiff, and that his discharge when granted will discharge him from his debts, and that the claim of plaintiff does not come within the provisions of the act concerning debts not discharged.

Plaintiff entered a rule for judgment for want of a sufficient affidavit of defense.

William B. Potts filed a supplemental affidavit, averring that he was granted a discharge in bankruptcy by the United States Court on June 22, 1928. A copy of the discharge is attached to the affidavit.

• It is not averred in the affidavit of defense that plaintiff’s claim was proved against the bankrupt estate, and in his reply to the new matter contained in the supplemental affidavit of defense, plaintiff averred that his claim was disallowed by the referee in bankruptcy.

There is no denial of the conversion of plaintiff’s stock and money by the partnership of which defendants were the members, but the defendant, William B. Potts, asserts that he did not personally participate in the action of the firm in the transactions of which plaintiff complains.

The conversion by one partner of property which comes into the possession of the firm is a conversion by all, for which all are liable: Nisbet v. Patton, 4 Rawle, 119; Blaustein v. Shapiro, 73 Pa. Superior Ct. 235.

Section 13 of the Uniform Partnership Act of March 26, 1915, P. L. 18, provides that where by any wrongful act or omission of any partner acting in the ordinary course of business of the partnership, or with the authority of his copartners, loss or injury is caused to any person not being a partner, the partnership is liable to the same extent as the partner acting or omitting to act; and section 14 enacts that “the partnership is bound to make good the loss (a) where one partner, acting within the scope of his apparent authority, receives money or property of a third person and misapplies it; and (b) where the partnership in the course of its business receives money or property of a third person and the money or property so received is misapplied by any partner while it is in the custody of the partnership;” and section 15 enacts that all partners are liable jointly and severally for everything chargeable to the partnership under sections 13 and 14: O’Brien v. St. Rita Oil Co., 4 D. & C. 640.

In McIntyre v. Kavanaugh, 242 U. S. 138, defendants, who were members of a partnership, claimed to be relieved from liability by reason of the fact that they did not actually participate in an injury done to plaintiff’s property, when the wrongful acts were committed by another member of the firm, it was held that the individual members of the copartnership were severally liable for torts of which they had no knowledge, committed by another member of the firm in the course of the partnership business.

McIntyre & Company were stock brokers and received certificates of stock from a customer as security for his indebtedness. Without his knowledge or authority, the stock was sold and the proceeds appropriated by the firm to their own use. Subsequently, the firm and its members were adjudicated bankrupts. McIntyre was one of the partners discharged from bankruptcy and was sued for the conversion of the proceeds of the stock. His discharge in bankruptcy was pleaded in defense, together with the fact that he had no personal knowledge of, and did not participate in, the tortious act. The liability was held to be for wilful and malicious injury to property and expressly excluded from the release in bankruptcy. The individual partners were held liable. It was said in the opinion “that partners are individually responsible for torts by a firm when acting within the general scope of its business, whether they personally participate therein or not, we regard as entirely clear. ... To deprive another of his property forever by deliberately disposing of it without semblance of authority is certainly an injury thereto within common acceptation of the words.”

Plaintiff’s claim against defendant was not discharged by the discharge in bankruptcy.

It is not denied that the partnership of which William B. Potts was a member committed the acts charged in the statement of claim, which amounted to wilful and malicious injury to the property of plaintiff. The discharge of defendant in bankruptcy does not relieve him from liability to respond in damages.

The affidavits of defense are insufficient to prevent the entry of judgment.

And now, to wit, October 1, 1928, the rule for judgment for want of a sufficient affidavit of defense is made absolute, and judgment is entered in favor of plaintiff against the defendant, William B. Potts.


author: Lamorelle, P. J.,

text:
    Nicholson’s Estate.

      E. Spencer Miller, for appellant, exceptant.

      J. Lee Patton, for Commonwealth of Pennsylvania, respondent, contra.
    Feb. 4, 1929.
   Lamorelle, P. J.,

The executors of the will of Alice Nicholson having made a return to the Register of Wills for the purpose of having transfer inheritance tax appraised, included in such return a fund of $5000 coming to her from a trust estate created by the will of Anna M. Powers. So far as the record discloses, no credit nor allowance was claimed for this particular fund and apparently it was treated by the executors as part of decedent’s estate. The tax was assessed Sept. 21, 1927, and on the following day such tax was paid. It is nowhere alleged that the payment was made without prejudice or under protest. It is not denied that the money so received by the Register as agent for the Commonwealth has by him been, paid to the Commonwealth under section 23 of the Act of June 20, 1919, P. L. 521.

On Oct. 3,1927, an account in the Estate of Anna M. Powers, deceased, was stated by Girard Trust Company, remaining trustee. The account was stated because of the death of Alice Nicholson. She had an equitable life interest in the $5000 with right of appointment. Alice Nicholson by her will directed the payment of her debts and bequeathed and devised the residue of her estate, including said sum of $5000, to her executors in trust. At that audit, the Auditing Judge was asked to award the $5000 directly to the trustees; this he declined to do, as to which see Fisher’s Estate, 10 Dist. R. 151. The adjudication was handed down Oct. 8, 1927, the award being made to the executors qua executors, and not to them as trustees. As above stated, the executors had already included this fund of $5000 in their return for the purpose of appraising and assessing tax. Afterwards, the executors took an appeal. The appeal was based on the allegation that the appellants were advised that no tax was chargeable against this particular fund.

The Hearing Judge ruled — and properly ruled — that payment extinguished the right of appeal, and we might well dismiss all exceptions to such ruling without further comment. Two of these exceptions related to the interpretation of section 13 of the Act of June 20, 1919, P. L. 521. Because of the rather unusual character of the case, we deem it advisable to enlarge somewhat upon the opinion of the Hearing Judge.

The instant case cannot be distinguished from Biddle’s Estate, 37 Montg. Co. Law Repr. 178, except in this: that in that case the appeal was not taken by the executors who paid the tax, but by a cestui que trust who felt herself aggrieved because such tax had been assessed and paid. We quote from the opinion of Judge Solly:

“The Commonwealth claims that, as the tax was paid long before the appeal was taken, and as the appeal was taken more than thirty days after the appraisement was made and notice thereof given to the executors and trustees, the appraisement is conclusive on all parties, and it is too late to raise the question that the real estate situate in states other than Pennsylvania is not subject to the tax.

“Section 13 of the Act of June 20, 1919, P. L. 521, provides as follows: ‘Any person not satisfied with any appraisement of the property of a resident decedent may appeal, within thirty days, to' the Orphans’ Court. . . . Upon such appeal, the court may determine all questions of valuation and of the liability of the appraised estate for such tax. . . .’

“The reason for the provision of the act as to the right of appeal would seem to be to afford any person liable to pay the tax (who is not satisfied with the appraisement) the opportunity to appeal within thirty days after notice of the appraisement, and before the payment of the tax, to the Orphans’ Court and have determined all questions of valuation and of the liability of the estate for the tax. We are of the opinion that the tax cannot be paid and afterwards questions of valuation and liability for the tax determined by the court. The appeal must be taken before the tax is paid.”

In the instant case, exceptants earnestly contend that payment of the tax, if made, is not a waiver of the right of appeal. Such contention is based on what we consider an erroneous interpretation of section 13 of the Act, supra. This section reads as follows:

“Section 13. Any person not satisfied with any appraisement of the property of a resident decedent may appeal, within thirty days, to the Orphans’ Court on paying, or giving security to pay, all costs, together with whatever tax shall be fixed by the court. Upon such appeal, the court may determine all questions of valuation and of the liability to the trust estate for such tax, subject to the right of appeal to the Supreme or Superior Court.”

The object of the word “paying” is either “costs” or “whatever tax shall be fixed by the court.” It will be noted that a comma appears after the word “costs,” seemingly to indicate that “paying” refers to costs. If this word refers to the tax, then, by elimination, the act would provide that an appeal can be taken “on paying (at once) . . . whatever tax shall be fixed by the court” (in the future), which would be absurd.

Further, there is no remedy provided in the act by which the court could enforce the return of tax paid under such conditions, but a remedy for refund under certain conditions, which may or may not apply in the instant case, from the State Treasury is provided.

We, therefore, conclude that the act is intended to mean “on paying, or giving security to pay, all costs, together with (security for) whatever tax shall be fixed by the court.”

Since the hearing on exceptions, the record has been amended by agreement to show that the petitioners have entered security in the sum of $100 for costs.

As no argument was had on the merits, the third exception, which is, “the learned judge erred in not sustaining the appeal of these exceptants and directing a refund to them in $475,” is also to be dismissed. If the fund was not in fact taxable, that question will be a matter for consideration if action be taken under section 40 of the Act of 1919, supra.

Accordingly, all exceptions are dismissed and the decree of the Hearing Judge in dismissing the appeal is sustained.


author: Shull, P. J.,

text:
    Lauby v. Gould. Kessler v. Gould.

      F. J. Mervine, for plaintiffs; C. C. Shull, for defendants.
    June 9, 1928.
   Shull, P. J.,

This matter comes before the court on rule to show cause why capias issued in above actions of trespass should not he quashed. In support of the rule, counsel offers the fact that this capias was served while defendant was at a hearing before P. M. Nilis, justice of the peace, on a prosecution in which the defendant, Fred J. Gould, was charged with aggravated assault and battery. Said defendant came voluntarily before the said justice in pursuance of letters written by counsel for plaintiff in the above-stated action, which said counsel was, at the time, District Attorney of Monroe County.

We are perfectly frank to say that, though we are of the opinion that immunity from civil process is not enjoyed by the defendant who appears in response to criminal process for either hearing or trial, unless it appears to have been an abuse of process of the court, which gives to the party plaintiff an advantage to which he is not fairly entitled, and, further, under the circumstances of this case, we would have given serious consideration to the motion had it been presented prior to any further action in the case on the part of the defendant, we feel that, after defendant has appeared, filed an affidavit of defense and the case been tried and verdict, it is too late to consider such motion for a defendant, though injured in the matter of service of the process.

The facts concerning the manner of procuring service, etc., were within the knowledge of the defendant, and if, without asking for relief, he sees fit to take his chances with the jury, he may not then, after an adverse verdict, avoid the consequences of it by complaining of such irregularity.

'And now, June 9, 1928, rule discharged.


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

text:
    Fees and Expenses in State Hospitals.
    June 26, 1928.
   Schnadhr, Special Dep. Att’y-Gen.,

We have your request to be advised with regard to certain questions which the recent audits of State hospitals for the sick and injured have suggested.

We shall state and answer your questions in their order:

I. Physicians and surgeons collecting fees for their own benefit.

“1. Where physicians and surgeons are employed on a salary basis, can these physicians and surgeons charge and collect fees for their own benefit?”

In our opinion, it is unlawful for any physician or surgeon employed by a State hospital on a salary basis to charge and collect fees for his own benefit for services rendered in the institution.

Any fees or charges collected for such services should be turned over to the institution. These hospitals are State institutions, conducted in State-owned property and operated by State employees. In all cases in which the circumstances justify a charge for the use of the hospital’s facilities or for services rendered by employees of the hospitals the amounts collected belong to the State and should be used to defray, pro tanto, the hospitals’ expenses.

What we have said applies to all physicians and surgeons employed by these hospitals on a salary basis, whether for part-time service or full-time service.

“2. Has the executive board the right to authorize salaries with permission to also collect fees?

“3. Have the boards of trustees power to permit, by resolution, physicians and surgeons to collect not only salaries but also fees without record being made in the hospital books?”

The executive board does not have the power to permit salaried physicians or surgeons to collect and keep fees for services performed by them in State hospitals.

Section 709 of the Administrative Code authorizes the executive board “to standardize the qualifications for employment and all titles, salaries and wages of persons employed by the administrative departments, boards and commissions. . .

To permit salaried employees of the State to collect and retain for their own use fees for services rendered by them on State property and directly or indirectly incidental to their State employment would clearly not be standardizing their compensation.

Section 2019 of the Administrative Code provides that the board of trustees of a" State institution shall have the power and its duty shall be “to fix the salaries of its employees in conformity with the standards established by the executive board.”

As the executive board cannot lawfully permit physicians or surgeons to collect and keep fees for services performed by them in State hospitals, it is clear that boards of trustees cannot sanction this practice in fixing the compensation of persons holding positions for which a standard compensation has been established by the executive, board.

In cases in which the executive board has not yet established standard salaries for positions, as, for example, the superintendents of State institutions, the boards of trustees must “fix" the salaries of their employees. To let an employee receive fees from patients is not fixing his salary, and any arrangement contemplating the receipt of fees from patients as all or a part of his compensation would clearly be illegal.

Accordingly, we advise you that neither the executive board nor the boards of trustees of State hospitals can lawfully permit salaried employees to retain, as part of their compensation, fees received from patients.

What we have just said has been true only since the passage of the Administrative Code. Prior to that time, the several hospitals were managed by corporate boards of trustees, whose actions in contracting with their respective employees, including superintendents, was not restricted as it is under the Code.

“4. Is it lawful for a physician or surgeon on the pay-roll of these institutions to be on the pay-roll of a corporation?”

If the physician or surgeon is a full-time employee of the institution, he could not lawfully also be on the pay-roll of an individual, a partnership or a corporation.

If the physician or surgeon is only a part-time employee of the State, he may lawfully be on the pay-roll of a corporation for services rendered by him outside of ike institution.

As previously stated, no State employee can lawfully retain for his own use fees or compensation for services rendered by him in the institution. These institutions were not established and cannot be used for private gain. Any emoluments for services rendered in them by any physician or surgeon on the State’s pay-roll should be paid to the respective institutions.

“5. If the collection of fees by physicians and surgeons is illegal, should these fees collected in the past be refunded to the State Treasury?”

Fees which have been illegally retained by physicians and surgeons employed by a State hospital should be refunded. If such fees had been paid to the institution when they were collected, they would have reduced the State’s appropriation liability to the hospital, and any moneys refunded by physicians or surgeons should be paid into the State Treasury.

II. Free service.

“Do the board of trustees, either as a body or individually, the surgeon-in-chief or any other persons have the legal power to authorize free treatment to patients financially able to pay?”

There are ten State hospitals for sick and injured persons. With the exception of three of them which were created by the same act of assembly, each hospital was established or acquired as a State institution by a separate act. The three hospitals which were created by the same act are the Blossburg, Connellsville and Philipsburg State Hospitals. The acts differ in a number of particulars, so that a general rule cannot be stated, governing the extent to which free service shall be rendered in all State hospitals for the sick and injured.

On Nov. 15, 1923, Deputy Attorney-General J. W. Brown rendered an opinion to Hon. C. W. Hunt, Deputy Secretary of Welfare, in which he covered in detail the extent to which free service must be rendered by the hospitals in question. See Official Opinions of the Attorney-General, 1923-1924, page 369. For your convenience, we shall restate Deputy Attorney-General Brown’s conclusions, as follows:

1. In the Ashland, Blossburg, Connellsville, Philipsburg and Scranton State Hospitals, indigent injured patients must be treated without charge. Injured patients who are not indigent should be made to pay the hospitals’ established charges for the services rendered.

If any patients other than injured patients are admitted, the same distinction prevails — indigent patients should be treated without charge and all others should be required to pay.

2. In the Hazleton and Shamokin State Hospitals, persons injured in mines or workshops and on railroads and injured laboring men generally must be treated without charge, subject to the duty of their employers to pay for medical and hospital services under the workmen’s compensation laws, to which we shall refer later.

All other patients, unless indigent, should be required to pay the hospitals’' established charges for the services rendered.

3. There are no statutory provisions specifying what classes of patients shall be admitted to the Nanticoke and Coaldale State Hospitals or what classes of patients shall pay. Their boards of trustees, with the approval of the Department of Welfare, must, therefore, deal with these matters in the rules and regulations governing the operation of their respective institutions.

Subsequent to the date of Deputy Attorney-General Brown’s opinion, there has been no change in the law which requires any modification of the views expressed by him.

Clearly, the matter of payment for services rendered should be definitely covered by the rules and regulations of the several hospitals, and if the rules and regulations require all persons to pay who are financially able to do so (and this may be done, except at Hazleton and Shamokin, where persons injured in the mines or workshops or on the railroads and injured laboring men must be treated free to the extent to which their employers are not liable under the Workmen’s Compensation Act), neither the board of trustees nor any member thereof, nor the superintendent, nor the surgeon-in-chief, nor any other officer or employee, may make any exception in favor of any individual patient. All patients, unless they are indigent, must pay, and this rule must be administered uniformly and without exception.

All free cases should, of course, be ward cases. A person not wholly indigent, but unable to pay in full for ward treatment, should be required to pay as much as he can.

III. Institutions collecting fees for their own benefit.

“1. In addition to the board and general hospital service,.is it lawful for these institutions to charge, collect and retain for their own use fees from all classes of patients for medical and surgical services rendered by their salaried staff?

“2. Should the ward rate charged patients be less than the per diem cost?

“3. Can the hospital collect the full ward rate, plus physicians’, surgeons’, operating-room and X-ray fees in compensation eases?

“4. In compensation cases, where the injured employee remains in the hospital beyond the statutory thirty-day period, is the employee personally responsible for services rendered by the hospital after the end of the statutory period, and have these institutions the right to collect medical and surgical fees as well as hospital charges from the patient for services rendered beyond the thirty-day period?”

1. Your first question under this heading has already been answered. It is not lawful for these institutions to collect fees from all classes of patients for medical and surgical services rendered by their salaried staff, as certain classes must be treated free of charge, as stated under the preceding heading. It is lawful for these institutions to charge, collect and use for maintenance fees received for medical and surgical services rendered- by their salaried staff to any and all patients other than those who must be treated without charge.

The ward rate charged to patients should be, as nearly as practicable, the actual cost of the service rendered.

2. In compensation cases, these institutions are entitled to collect from employers the cost of surgical, medical and hospital services and medicines and supplies furnished to injured employees, notwithstanding the fact that the injured employees would be entitled to free service if their cases did not come within the provisions of the workmen’s compensation laws. This point was expressly decided by the Supreme Court of Pennsylvania in Trustees of State Hospital v. Lehigh Valley Coal Co., 267 Pa. 474 (1920).

With regard to the amounts collectible by the hospitals, the situation is as follows:

Section 306 (e) of the Workmen’s Compensation Act of June 2, 1915, P. L. 736, as amended by the Act of June 26, 1919, P. L. 642, provides that: “During the first thirty days after disability begins, the employer shall furnish reasonable surgical and medical services, medicines and supplies, as and when needed. . . . The cost of such services, medicines and supplies shall not exceed $100. ... In addition to the above services, medicines and supplies, hospital treatment, services and supplies shall be furnished by the employer for the said period of thirty days. The cost for such hospital treatment, service and supplies shall not in any case exceed the prevailing charge in the hospital for like services to other individuals. . . .”

The Superior Court, in Denne v. Plymouth Coal Mining Co., 91 Pa. Superior Ct. 429 (1927), held that under this section the amount of the employer’s liability for “hospital treatment, services and supplies” furnished during the first thirty days after disability begins is unlimited, and that a ruling by the Workmen’s Compensation Board, attempting to limit such liability to $100, was void.

Accordingly, in computing the amounts of these charges, the hospitals should include all items which they would charge to paying ward patients for similar services. These items would include the full ward rate, plus charges for services of physicians or surgeons on the hospital staff, fees for the use of the operating-room and of X-ray apparatus, if such charges are customarily made as a part of the cost of treating paying ward patients. The employer cannot, however, be required to pay any items which would not be charged against the patient if he were in the hospital as a paying ward patient.

3. Your last question was answered by Attorney-General Francis Shunk Brown in an opinion dated Feb. 17, 1916 (Official Opinions for 1915-1916, page 575). He held that if the hospital is required to furnish care and services beyond the period during which the employer is required to furnish such services, the hospital may charge the injured person with the cost of treatment, unless the injured person is within the classes of persons who are entitled to free service, in which case a charge could not properly be made under any circumstances.

From C. P. Ad dams, Harrisburg, Pa.


author: Patterson, P. J.,

text:
    Henderson, Assignee, v. Briggle, Executrix, et al.

      Mitchell MacCartney, for Annie M. Briggie, claimant.

      Scheeline & Smith, for exceptants.
    July 31, 1928.
   Patterson, P. J.,

George W. Briggie, late of the City of Altoona, died testate on Feb. 11, 1928, leaving to survive him Annie M. Briggie, his wife, whom he named executrix. The fund for distribution arose from a sale of real estate on a mortgage executed during the lifetime of the said George W. Briggie to Ira W. Hess, and by the said Ira W. Hess assigned to Katherine C. Henderson, who became the use-plaintiff, and after satisfaction of said mortgage there remained in the hands of the sheriff the sum of $34,378.98 to be distributed to the beneficiaries under the last will and testament of the said George W. Briggle, creditors of the said George W. Briggle, and such other persons entitled to participate therein as provided by law.

The account of Annie M. Briggle, executrix, showed receipts and expenditures by her as executrix, including an item of credit, “widow’s exemption allowed Annie M. Briggle, $500.00,” and a further credit of $185.92 for fees and administration expenses. The auditor disallowed the said items, and, after deducting the costs of audit, undertook to distribute said balance in the hands of the sheriff to the several judgment creditors who hold judgments contracted and entered of record during the lifetime of the said George W. Briggle.

In the report of the auditor we find “the said Annie M. Briggle, executrix, filed with the auditor at this meeting a claim for $685.92, which is shown in her statement of account hereto attached and made a part hereof. In this claim the said Annie M. Briggle claims $500.00 widow’s exemption.”

Four exceptions have been filed to the auditor’s report, charging that the auditor erred in failing to award the sum of $685.92 to the said Annie M. Briggle, widow and executrix of the said George W. Briggle, deceased, which amount includes $500 exemption to the widow and $185.92 for administration expenses, and in holding that the widow would be compelled to look to the purchaser of the real estate for the recovery of her claim.

The widow’s exemption is claimed under section 12, subdivision “A,” of the Fiduciaries Act of June 7, 1917, P. L. 447, said section reading as follows: “The widow, if any, ... of any decedent dying testate or intestate . . . may retain or claim either real or personal property or the proceeds of either real or personal property belonging to said estate to the value of $500.00, and the property so retained of claimed shall not be sold, but suffered to remain for the use of the widow or children.”

The exemption allowed by the act does not vest in the widow at the death of her husband, but only when she elects to exercise her right by making a claim for it. No time is fixed by law for claiming the exemption, but the claim must be made within a reasonable time after the right accrues: Burk v. Gleason, 46 Pa. 297. And it is held in Lane’s Estate, 6 Dist. R. 618, that the claim is made in time if done before the situation with respect to the estate has been so changed that expense and embarrassment would result from allowing it. In the case under consideration, the position of the judgment creditors is not affected by the widow’s delay in not making her claim for her exemption until before the audit and after the sheriff’s sale. The judgment creditors were all of record prior to the death of the said George W. Briggle, testator.

In Irwin’s Estate, 19 Pa. C. C. Reps. 595, it is held that a claim made about thirteen months after testator’s death will not be refused for laches when no intervening rights are affected. And in Snider’s Estate, 16 Pa. C. C. Reps. 238, it is held that a delay of two and a-half years by the widow in demanding her exemption is not necessarily evidence of waiver; and if other parties are not affected, it is not too late to make the claim before the audit, citing Kirkpatrick’s Estate, 5 Phila. 98; Hunt’s Estate, 11 W. N. C. 123; Rizer’s Estate, 11 W. N. C. 563; Buddy’s Estate, 25 W. N. C. 359; McCann’s Estate, 27 W. N. C. 439, and numerous other citations found in notes, 1 Purdon’s Digest, 1094. And in the same notes: “Where the widow claims her exemption and presents the appraisement to the Orphans’ Court for confirmation, but the court declines to adjudicate upon her right until the settlement of her account as administratrix, she may claim in her account, when filed, a credit for the exemption.” Citing Baldy’s Appeal, 40 Pa. 328.

Annie M. Briggle made her claim before the auditor by presenting her account, just as was done in the case last cited. It is held, in Maier’s Estate, 1 Pearson, 420, and in Tibbin’s Estate, 5 Phila. 100, that a widow must make her claim before all the assets are otherwise properly disposed of. And in Atherton’s Estate, 8 Kulp, 150, it is held: “A widow administratrix need not make demand on herself for the exemption; she may take it and claim credit in her .account.” Ordinarily, an appraisement is necessary to the right to take property or the proceeds of its sale, but an appraisement is unnecessary when the property consists of money in hands or the like, or when the exemption is claimed out of the proceeds of real estate converted by term of the will. See cases cited, 1 Purdon’s Digest, 1094.

A widow’s claim for exemption is prior to the rights of all creditors, distributees, heirs, or even the Commonwealth’s claim for inheritance tax, and every other form of obligation, except purchase-money mortgages. The right of Annie M. Briggle, widow, for allowance of her exemption is supported in Potter's Estate, 6 Pa. Superior Ct. 627, wherein it is stated: “The law is especially solicitous and careful — and rightly so — of childhood and old age. The rights of the latter are to be guarded with as much of carefulness and solicitude as the former.” In this ease, the widow remained silent for upwards of three years without making a claim for her exemption.

We are of the opinion that the auditor erred in disallowing the claim for the widow’s exemption, and also the item of $185.92, representing balance due her for necessary administration expenses, and if, through her neglect or mismanagement, the estate of George W. Briggle suffered loss, such loss should be determined on exceptions to her account and not as a set-off against her exemption and expenses of administration.

The exceptions to the auditor’s report are, therefore, sustained and the report referred back to the auditor for distribution of said funds in the hands of the sheriff arising from the sale of real estate, in accordance with the conclusions of law herein set forth.

Prom Robert W. Smith, Hollidaysburg, Pa.


author: Carnahan, J.,

text:
    Shaffer v. Sewickley Borough et al.

      Eckles & Davis, for petitioner.

      Charles A. Woods, Borough Solicitor, and Robt. A. Applegate, for respondents.
    March 2, 1928.
   Carnahan, J.,

The petitioner is a constable for the Borough of Glenfield, in Allegheny County, appointed by the Court of Quarter Sessions of Allegheny County to fill the unexpired term of Walter Fuchs, whose term expired on the first Monday of January, 1928. The Borough of Glenfield has no lockup for the detention of prisoners; nor is there any lockup for such purposes within a radius of about three miles, except one in the Borough of Sewickley. The petitioner “is engaged in the serving of warrants and writs from the office of Margaret M. Morgan, Justice of the Peace for the Borough of Sewickley aforesaid, and it is necessary for the petitioner to find some place for the detention of any prisoners that he may arrest on warrants from the said justice of the peace.”

The borough, by its burgess, chairman of the police committee and its chief of police, has refused to receive prisoners from the petitioner on commitments issued by Justice of the Peace Morgan, and the petitioner, because of such refusal, “has been compelled to transport the said prisoners to other boroughs, adding greatly to the cost of the commitment and greatly inconveniencing” him “in the execution of his duty.” He has “frequently attempted to have prisoners in his charge admitted to the said lockup,” but the borough officers aforesaid have “refused to receive them.”

A writ of alternative mandamus has been issued, to which the respondents have demurred.

The Act of Assembly approved April 23, 1909, P. L. 141, contains this provision:

“Section 1. Be it enacted, etc., that Sheriffs, Constables, members of the State Constabulary, or other persons authorized by laws of this Commonwealth to make arrests, hereafter shall have the use for a period not to exceed forty-eight hours, of borough and township lockups and city and county prisons, for the detention of prisoners until they can be disposed of according to law, if fqund necessary by the officers in charge.”

It does not appear what the alleged offenses of the prisoners referred to by the petitioner were, or where they were committed; nor does it appear that the petitioner, as constable for Glenfield, has been doing any business at all as constable in that borough. He says in his petition that he “is engaged in the serving of warrants and writs from the office of Margaret M. Morgan, Justice of the Peace for the Borough of Sewickley.” It does not appear that since the “first Monday of January, 1928,” he has had authority to act as constable anywhere, although it is understood by the court that he now holds his office as constable of Glenfield by authority of law.

The borough authorities of Sewickley have discretionary power (at least to some extent) to admit prisoners to their lockup. The lockup may be overcrowded. The facilities for detention may not be adequate. There may be insuperable objections to admitting all of the prisoners in charge of the petitioner, and yet the petitioner asks the court to make an order compelling the authorities of Sewickley to admit all of his prisoners. He asks in his petition that the respondents be required “to admit prisoners in charge of your petitioner for detention.” He means all of his prisoners.

Unless there be some good reason for refusing to admit them, they ought to be admitted; but the court cannot anticipate what will happen. The Borough of Sewickley has its magistrates and constables. A sweeping order such as prayed for might operate to the very serious detriment of the borough, and, besides, it would establish a precedent for all outside constables.

We do not understand it to be the absolute duty of a constable to serve warrants and writs issued outside of his borough, such as the petitioner has been doing. These acts on his part are purely voluntary and are apparently done in furtherance of his personal interests.

This demurrer should be sustained.

Order. — And now, to wit, March 2, 1928, demurrer sustained and petition dismissed, at the costs of petitioner.

Prom William J. Aiken, Pittsburgh, Pa.


text:
    Kirlin’s Estate.

      George Sterner, for the life-tenant and claimant, exceptant.

      Ira P. Bothermel, of the Berks County Bar, and Maxwell H. Kratz, 'for residuary legatees, contra.
    Feb. 4, 1929.
   Lamorelle, P. J.,

Of the twenty exceptions filed to the adjudication, the most important are those relating to the exceptant’s claim of $1000 for money lent Alonzo A. Kirlin and to the interpretation of the will.

It was earnestly contended before the Auditing Judge that the testimony produced was sufficient to justify the allowance of this claim based on except-ant’s check for $1000; and that a liberal construction would give the life-tenant a right to consume principal. Both questions were decided against claimant.

It is undoubtedly the law that neither claimant nor her husband was competent. One of our recent eases is Miller’s Estate, 9 D. & C. 670, wherein we said (at page 674) : “So far as the claim of Mrs. Ross is concerned, her husband is incompetent to testify. There is but one case which upholds such view, Levan v. Bickel, 5 Pa. C. C. Reps. 610; it is not in accord with all other authorities. In Howell’s Estate, 12 Dist. R. 193, Judge Penrose says: ‘The only evidence in support of the claim which has been allowed is the testimony of the wife of the claimant; and as his incompetency as a witness, under the common law, on the ground of interest, has not been removed by any statute, as against the estate of a deceased debtor, the incompetency of his wife necessarily follows. This, as the authorities show, is partly on the ground of public policy and partly because of the identity of interest of husband and wife, and is not affected by the fact that the wife’s information was obtained before her marriage. See Greenleaf on Evidence, § 336, &c.; Bitner v. Boone, 128 Pa. 567. See, also, Maguire’s Estate, 22 Dist. R. 539.”

It is equally well settled that a check is not prima facie evidence of a debt; in fact, the presumption is that it is in payment of an indebtedness: Burke’s Estate, 291 Pa. 223, and cases therein cited.

The testimony of the maid, while competent, and as such admitted by the Auditing Judge, failed to connect the áeknowledgment which she at one time heard in any way with this particular claim or to any special sum or sums.

So far as the will is concerned, it interprets itself. All real and personal property was bequeathed and devised to the adopted daughter for her natural life, and on her death the “same” was directed to be sold and distributed among the brothers and sisters of testator. True, the adopted daughter was to have the use, profits and interest, but this language did not enlarge the estate nor confer a right of consumption unless she gave a bond for the protection of the remaindermen, whereupon the bond would take the place of the award. If a bond is entered, she is entitled to the profit on sale of the New Orleans Public Service bond (Printzenhoff’s Estate, 10 D. & C. 335). If she elects to have the corpus held in trust, she is not.

The other exceptions are to matters well within the discretion of the Auditing Judge, and as the subject-matters thereof were passed upon by him and as our examination of the record discloses no reversible error, they are' to be dismissed.

Accordingly, the exceptions are dismissed, save the one relating to profit on sale of the bond, and that is conditionally sustained, dependent upon proper action by the exceptant; and the adjudication possibly modified as above is confirmed absolutely.

Judge Holland, who audited the account, did not sit at the argument but concurs in opinion of the court.