author: MacDade, J.,

text:
    Commonwealth v. McNichol.

      Criminal law — Automobiles—Vehicle Code — Acts of June 30, 1919, and May 11, 1927 — Statutes — Interpretation of statutes — Repealing clause — Re-enactment of repealed statute — Continuance of re-enacted provisions-— Penal statutes — Abatement of remedy.

    1. The Act of May 11, 1927, P. L. 886, as to its provisions which make it a crime for one, while under the influence of intoxicating liquor, to operate a motor-vehicle, is a re-enactment, in the same terms, of the Act of June 30, 1919, P. L. 678, and, therefore, the provisions are continued in uninterrupted operation, notwithstanding the repealing clause in the Act of 1927, and a verdict may be rendered and sentence imposed for an offense committed before the Act of 1927 went into effect.
    2. A re-enactment statute which makes no change in its substantive law should be construed as 'continuing the law as it existed before its passage, unless the legislative intent is manifestly to the contrary through irreconcilable inconsistency with, or a particular reference made to, an intefmediate statute.
    3. Where a statute which defines a crime and provides a punishment to be imposed is repealed before judgment and there is no proper saving clause, the •repeal constitutes a complete bar to all further proceedings, and prosecutions pending at the date of the repeal are abated.
    4. Where a remedy has been provided by statute and proceedings are instituted under it, but before final judgment the statute is repealed, the remedy is thereby taken away and further proceedings to enforce it are illegal.
    5. Where, however, the repealing statute re-enacts the provisions of the repealed statute, the re-enactment neutralizes the repeal and the provisions thus re-enacted continue in force without interruption, so that all rights and liabilities that have accrued thereunder are preserved and may be enforced.
    6. Statutes pertaining to crimes and their punishment should be strictly construed and nothing left to intendment, but they should not be so construed as to thwart the evident will and intention of those who enacted them, where that intention is plainly and fairlV deducible from the law itself.
    7. A penal statute should receive a reasonable and common sense construction and its force should not be frittered away by niceties and refinements at war with the practical administration of justice.
    8. The principle of strict construction does not allow a court to make that an offense which is not such by legislative enactment, but this does not exclude the application of common sense to terms made use of in an act in order to avoid an absurdity which the legislature ought not to be" presumed to have intended.
    Motion in arrest of judgment. Q. S. Delaware Co., Dec. Sess., 1927, No. 116.

      Bruce W. Long, for motion.

      William J. MacCarter, Jr., District Attorney, and Louis A. Bloom, Assistant District Attorney, contra.
    Feb. 14, 1928.
   MacDade, J.,

The defendant, Bernard McNichol, is charged by the Commonwealth, as of the above term and number, with operating a motor-vehicle while under the influence of intoxicating liquor. He was tried for the said crime and found guilty by a jury on Jan. 11, 1928, the indictment upon which he was tried alleging that the above crime was committed while operating a motor-vehicle on Chester Pike, in the Borough of Ridley Park, in the County of Delaware, on Nov. 12, 1926. The indictment was found true on Dec. 6, 1926.

The defendant was indicted under the Act of June 30, 1919, P. L. 678, and its amendments. After a verdict of guilty of the offense as charged, the defendant moved the court in arrest of judgment and assigned the following reasons therefor:

1. The defendant being charged under the Act of June 30, 1919, P. L. 678, and its amendments, with having on Nov. 12, 1927, operated a motor-vehicle while under the influence of intoxicating liquor, said indictment having been found by the grand jury against the defendant on Dee. 7, 1927, and no trial or conviction thereon having been had until Jan. 11, 1928, the court is now without power or authority to sentence the defendant under said indictment, for the reason that the punishment provided by said Act of 1919 and its amendments for the offense charged in the indictment has been repealed or set aside as to this defendant and the offense so charged against him by the provisions of the Act of Assembly of Pennsylvania of May 11, 1927, P. L. 886, entitled “The Vehicle Code,” which contains no saving clause.

2. That the penalty provided by said Act of June 30, 1919, P. L. 678, and its amendments, for the offense charged in the indictment cannot now, since the Act of Assembly of 1927 became effective, viz., Jan. 1, 1928, be legally imposed upon this defendant under the indictment in'this case.

3. That to now sentence the defendant in pursuance of the conviction had on Jan. 11, 1928, upon the indictment in this case would be illegal and contrary to the defendant’s constitutional rights and privileges.

4. And because no judgment against him, the said Bernard McNichol, can be lawfully rendered on the said record.

It will be observed, therefore, that the defendant contends that, notwithstanding his guilt involving violation of the Motor Vehicle Act of June 30, 1919, P. L. 678, and its supplements, sentence or judgment should be arrested on the ground, inter alia, that that act has been repealed by the Vehicle Code, which went into effect Jan. 1, 1928 (Act of May 11, 1927, P. L. 886).

It is contended that said Act of 1919 and its amendments, as well as other acts inconsistent with the Vehicle Code, are specifically repealed in section 1301 of the Vehicle Code. That no “saving clause” is contained in the Code to take care of prosecutions that have not gone to final judgment before the effective date of the new act (Jan. 1, 1928). That the arm of the court is stayed, therefore, because the crime was committed and the indictment found in the year 1927 and there was no final judgment in said year, the defendant being prosecuted before the court and jury and found guilty Jan. 11, 1928.

The defendant cited in support of his contention, when the case at bar was argued before the court “in banc” upon the motion in arrest of judgment, a recent opinion of the Attorney-General of the Commonwealth of Pennsylvania, under date of Jan. 5, 1928, wherein the contention of the defendant is apparently sustained on the ground of no “saving clause” in the Vehicle Code of 1928. He also cites the following cases: Com. v. Duane, 1 Binney, 600; Com. v. Shopp, 1 Woodward, 123; Road in Hatfield Township, 4 Yeates, 392; Com. v. Beatty, 1 Watts, 382; Abbott v. Com., 8 Watts, 517; North Canal Street Road, 10 Watts, 351; Genkinger v. Com., 32 Pa. 99; Com. v. Brown, 7 Dist. R. 117; Com. v. Dolan, 4 Pa. C. C. Reps. 287; Swissvale Borough, 64 Pa. Superior Ct. 63; Scranton City v. Rose, 60 Pa. Superior Ct. 458; Hartung v. People, 22 New York, 95; Com. v. Marshall, 11 Pick (Mass.), 350; Re Kline, 70 Ohio State, 25; State v. Hanover, 55 Washington, 403; People v. Tisdale, 57 California, 104; Maresca v. United States, 277 Fed. Repr. 727; Landen v. United States, 299 Fed. Repr. 75; Thiel v. Philadelphia, 245 Pa. 406.

Evidently the above cases decide that when a statute which defines a crime and provides a punishment to be imposed upon the offender is repealed before judgment and there is no proper saving clause, the repeal constitutes a complete bar to all further proceedings. It is a familiar common law rule that, after a statute creating an offense is repealed without a saving clause, there can be no further criminal prosecutions for its violation, and even prosecutions pending at date of the repeal are abated.

In the case of Scranton City v. Rose, 60 Pa. Superior Ct. 458, 462, the court makes this observation: “There is no vested right in the Commonwealth, existing after the repeal of a criminal statute, to prosecute an offense in existence prior to the repeal of such statute. It is unnecessary to cite authority as to the effect of the repeal of a criminal statute on pending proceeding. It is well settled that all proceedings which have not been determined by final judgment are wiped out by a repeal of the act under which the prosecution for the offense took place.”

The question has received careful consideration by Craig, P. J., in the case of Com. v. Brown, 20 Pa. C. C. Reps. 139, 7 Dist. R. 117, in which opinion the following is cited from Endlich on The Interpretation of Statutes: “Where a penal law is broken, the offender cannot be punished under it if it expires or is repealed before he is convicted, although the prosecution was begun while the act was still in force, unless the repealing act contains a saving clause. Every step taken under a statute that has been repealed is utterly void; presentment, trial, conviction and sentence become illegal. If an indictment has been found, it may be quashed on motion, for the court is bound to take notice of the repeal. Though a conviction has been had, the judgment is arrested, and though judgment has been entered, if an appeal from it, or other proceedings for review of it, is pending, the judgment must be set aside. And so, even after conviction, appeal and argument, but before final judgment, and though a repeal after final judgment will not ordinarily arrest the execution of the sentence, and will not do so even in capital cases where the sentence has been pronounced and the day set for execution, yet, in the latter class of cases, if the sentence of death has been pronounced, but not executed on the day set for its execution, a repeal of the statute before the criminal is resentenced requires his discharge. The same effect follows any modification of a penal statute which exempts, without special reservation, a particular class from its operation.”

This has been the law for a long time in Pennsylvania, for it was held as early as 1833, in the case of Com. v. Beatty, 1 Watts, 382, that where a remedy has been provided by statute and proceedings were instituted under it, but during their pendency the statute was repealed, in such cases the remedy was thereby taken away and further proceedings brought to enforce it were illegal. See, also, Abbott v. Com., 8 Watts, 517.

While we agree, of course, with the above authorities, and the law is well stated therein, we conclude that they do not control the case at bar, for a different condition exists, or rather there are certain matters not considered in the cited cases which we must consider in disposing of this motion and which compel us to refuse the same. The real issue herein involved is: Did the legislature, by its passage of the Act of May 11, 1927, P. L. 886, entitled “The Vehicle Code,” which was the re-enactment of an existing law in substantially the same terms, repealing the Motor Vehicle Act of June 30, 1919, P. L. 678, with its amendments, without providing for a “saving clause,” intend to nullify by its repeal all criminal proceedings instituted and not prosecuted under the Act of 1919, and its amendments, to final judgment before Jan. 1, 1928, when the Vehicle Code became effective, or did it intend that such criminal proceedings should continue in uninterrupted operation and were not to be affected by the repeal or the lack of a “saving clause?”

The Act of June 30, 1919, P. L. 678, as amended by the Act of June 14, 1923, § 23, P. L. 745, provides: “No person shall operate a motor-vehicle while under the influence of intoxicating liquor or any narcotic or habit-producing drug, or permit any person who may be under the influence of intoxi-eating liquor or narcotic drugs to operate any motor-vehicle owned by him or in his custody or control.

“Any person violating any of the provisions of this section shall be de'emed guilty of a misdemeanor, and, upon conviction thereof, shall be sentenced to pay a fine of not less than $200 nor more than $500, or to undergo imprisonment not exceeding three years, or both, at the discretion of the court.”

The Act of May 11, 1927, § 621-F, P. L. 886, provides: “It shall be unlawful for any person to commit any of the following acts: To operate a motor-vehicle while under the influence of intoxicating liquor or any narcotic drug, or permit any person who may be under the influence of intoxicating liquor or narcotic drug, to operate any motor-vehicle owned by him or in his custody or control.”

The Act of May 11, 1927, § 1202-5, P. L. 886, provides: “Violating any of the provisions of sections 301, 302, 303, 413, 621 and 1029 of this act, $200, or imprisonment for three months, or both such fine and imprisonment.”

We shall hold in the case at bar that the re-enactment of an earlier statute in a later statute is a continuance, and not a repeal, of the former statute, even though the latter expressly repeals the earlier one.

The prevailing view is that where a statute is repealed and all, or some, of its provisions are at the same time re-enacted, the re-enactment neutralizes the repeal, and the provisions of the repealed act which are thus re-enacted continue in force without interruption, so that all rights and liabilities that have accrued thereunder are preserved and may be enforced.

The repeal of a general incorporation law by a statute substantially re-enacting its provisions does not terminate the existence of the corporations organized under it. This rule is applicable to criminal statutes, and where the statute repealed is re-enacted in substantially the same terms by an act which takes effect at the same time as the repealing act, it is continued in uninterrupted operation, and judgment may be rendered upon a conviction under it, though the offense was committed and prosecution commenced before the repeal: 25 Ruling Case Law, § 186, page 934, and cases there cited.

Where there is an express repeal of an existing statute and a re-enactment of it at the same time or a repeal and a re-enactment of a portion of it, the re-enactment neutralizes the repeal so far as the old law is continued in force. It operates without interruption where the re-enactment takes effect at the same time. The intention manifested is the same as in an amendment enacted, oifices are not lost, corporate existence is not ended, inchoate statutory rights are not defeated, a statutory power is not taken away, nor pending proceedings or criminal charges affected by such repeal and the re-enactment of the law on which they respectively depend: 1 Lewis, Sutherland Statutory Construction, 445.

While all statutes pertaining to crimes and their punishment should be strictly construed, and nothing left to intendment, they should not be so construed as to thwart the evident will and intention of those who enacted them where that intention is plainly and fairly deducible from the law itself. A penal statute should receive a reasonable and common-sense construction, and its force should not be frittered away by niceties and refinements at war with the practical administration of justice. The principle of strict construction does not allow a court to make that an offense which is not such by legislative enactment, but this does not exclude the application of common sense to terms made use of in an act in order to avoid an absurdity which the legislature ought not to be presumed to have intended: 2 Lewis, Sutherland Statutory Construction, 981.

It seems, indeed, to be the general understanding that the re-enactment of an earlier statute is a continuance, not a repeal, of the later, even though the later act expressly repeals the earlier.

The repeal and re-enactment in a revision of laws of a statutory provision authorizing a town to make a certain by-law was held not to affect the validity of the by-law, and it has been applied to criminal statutes so as to permit a conviction for an offense against the re-enacted old law, even where the re-enacting law undertook to repeal it, the re-enactment being construed a continuance: Endlieh on the Interpretation of Statutes, § 490.

Defendant was indicted for stealing a horse on March 27, 1883. Defendant demurred to indictment on ground facts stated did not constitute offense under statute. Demurrer was sustained. No objection was made to form of indictment, but it was claimed that the law for punishment of horsestealing was repealed without a saving clause. After the offense charged, indictment was submitted. Prosecuting attorney applied for and obtained leave to file a petition in error in this court for the purpose of having the law determined. The difference between the original and the new act was a reduced maximum imprisonment from fifteen to ten years, and minimum from three years to one year. Held, where a new act is in the very words of a statute which it repeals and it is clea/r that the repeal and re-enactment were intended to continue in force the uninterrupted operation of the old statute, they will be so construed, and this will apply to crime committed before the new act took effect: State of Nebraska v. Wish, 15 Neb. 448.

Where the statute repealed has in it the same words as in the act which takes effect as the repealing act, it is continued in uninterrupted operation, and the judgment may be rendered upon a conviction under it though the offense was committed and the prosecution commenced before the repeal: State v. Gumber, 37 Wis. 298.

Statutes are to be construed so as may best effectuate the intention of the makers, which sometimes may be collected from the cause or occasion of passing the statute, and, where discovered, it ought to be followed with judgment and discretion in the construction, though the construction may seem contrary to the letter of the statute: Big Black Creek Improvement Co. v. Com., 94 Pa. 450; Duffy v. Cooke, 239 Pa. 427.

While the general rule that when a statute is repealed without a saving clause it is to be considered as though it never existed except as to transactions past and closed, the rule, like any other legal principle of general application, must be understood and applied, if at all, so as to give effect to the legislative intention. It is not so much what the general rule of construction is as what did the legislature intend by repealing all acts or parts of acts inconsistent with the new law: Com. v. Mortgage Trust Co. of Penna., 227 Pa. 163.

While the Act of June 4, 1901, P. L. 364, in terms repeals the Act of Feb. 3, 1824, P. L. 18, yet the provisions of the Act of 1824, giving priority to municipal liens, are re-enacted in substantially identical terms in the latter act; the law had not been changed by the Act of June 4, 1901.

Where a statute is repealed and its provisions are at the same time re-enacted by the repealing act, the effect is that the earlier statute is not in fact repealed, but its provisions continue in active operation so that all rights and liabilities incurred thereunder are preserved and may be enforced: Haspel v. O’Brien, 218 Pa. 146.

If the provisions of the former act are revised and supplied, this works as a repeal to that extent, but the repeal goes no further. It cannot be doubted that from the time the Act of 1919 took effect until the time when the defendant was convicted that there was no interval when-sedition was not an indictable offense, and when some, at least, of the acts attributed to the defendant in the indictment were not seditious. 'Even in cases of express repeal, where at the same time the provisions of the repealed statute are re-enacted by the repealing act, the earlier statute is not in fact repealed, but its provisions continue in operation as amended. The question is one of legislative intent, and there can be no doubt that the amendment under consideratipn was not intended to work a repeal of the statute, but to amend it merely, and that not in a way to affect material parts of it: Com. v. Belevsky, 79 Pa. Superior Ct. 12, 15. Opinion by Henderson, J., April 17, 1922.

A re-enacting statute which makes no change in its substantive law should be construed as continuing the law as it existed before its passage, unless the legislative intent is manifestly to the contrary through irreconcilable inconsistency with, or a particular reference made to, an intermediate statute: Com. v. Provident Trust Co., 287 Pa. 251.

Though an act of assembly repeals a former act, yet if it is evident that the legislature intended certain parts of the former act to have a temporary continuance, it is not an immediate repeal of such parts: Moore v. Houston, 3 S. & R. 169.

The rule of construction applicable to acts which revise and consolidate other acts is that when the revised and consolidated act re-enacts in the same, or substantially the same, terms the provisions of the act or acts so revised and consolidated, the revision and consolidation shall be taken to be a continuation of the former act or acts, although the former act or acts may be expressly repealed by the revised and consolidated act; and all rights and liabilities under the former act or acts are preserved and may be enforced: Haspel v. O’Brien, 218 Pa. 116, supra.

Holding, therefore, to the view that the words in the Act of 1927, namely, “To operate a motor-vehicle while under the influence of intoxicating liquor . . .” are substantially the same words as contained in the Act of 1919 and its amendments, namely, “No person shall'operate a motor-vehicle while under the influence of intoxicating liquor or . . .” and it being clear that the repeal and re-enactment (Act of 1927) were intended to continue in force the uninterrupted operation of the old statute (Act of 1919, and its amendments), it will be so construed in the case at bar and applies to the crime committed before the new act took effect and for which the defendant was convicted.

Order. — And now, Feb. 14, 1928, the defendant’s motion in arrest of judgment is dismissed and the defendant is hereby directed to appear before this court, within ten days from the filing of this order, for sentence in accordance with the act of assembly in such case made and provided.

From William B. Toal, Media, Pa.

NOTE.—See Com. v. McNamara, 8 Adv. Reps. 538, 93 Pa. Superior Ct. —.


source: Caselaw Access Project

author: Wagner, Dep. Att’y-Gen.,

license: Public Domain

text:
    Fraternal Benefit Societies’ Endowment Certificates.

      Fraternal benefit societies — Endowment benefit certificate — Act of May 20, 1921.

    A fraternal benefit society organized under the Act of May 20, 1921, P. Ti. 916, has no authority to issue twenty-year endowment benefit certificates.
    Department of Justice. Opinion to Hon. Matthew H. Taggart, Insurance Commissioner.
    Feb. 28, 1928.
   Wagner, Dep. Att’y-Gen.,

We have your request of Feb. 9th for an opinion relative to the power and authority of a fraternal benefit society organized and existing under, and in pursuance of, the provisions of the Act of May 20, 1921, P. L. 916, to issue to its members benefit certificates in the nature of twenty-year endowment certificates.

The sections of the act which are pertinent to the question propounded are sections 8 and 5, which read as follows:

“Section 8. Every such society shall have power to issue whole life, old age, or whole life combined with old age, limited payment life, term, sick or relief and dependent benefit certificates, and make the specified benefit payment in a single cash payment or in instalments or a term or life annuity. Every such certificate shall specify the amount of benefit furnished thereunder, and shall provide that the certificate, the charter or articles of incorporation, or, if a voluntary association, the articles of association, the constitution and laws of the society, and the application for membership and medical examination, signed by the applicant, and all amendments to each thereof, shall constitute the obligation of the society. Copies of the same, certified by the secretary of the society or corresponding officer, shall be received in evidence of the terms and conditions thereof; and any changes, additions or amendments to said charter or articles of incorporation, or articles of association if a voluntary association, constitution, or laws, made or enacted subsequent to the issuance of the benefit certificate, shall bind the member and his beneficiaries in all respects the same as though such changes, additions or amendments had been made prior to, and were in force at the time of, the application for membership.
“Section 5. Every such society shall provide for the payment- of death benefits, and may provide for the erection of monuments to mark the graves of its deceased members. It may also provide for the payment of old age benefits which mature for payment to the member at not under sixty years of age, and for permanent and temporary disability payments. It may provide that a member, when permanently disabled or upon attaining not less than sixty years of age, shall have the option to surrender his certificate upon payment of all or such portion of its face value as may be authorized under the constitution and laws.
“Any society may provide for the acceptance of liens against benefit certificates, with interest at not less than 4 per centum per annum, in lieu of cash payments, but the total of such liens against any benefit certificate shall not exceed its share of the accumulation thereunder. Any such society collecting a level rate of contribution, under any of its benefit certificates, based upon any table of mortality allowed for valuation purposes in this act, may grant to members holding such certificates extended and paid up protection or such withdrawal equities as may be allowed under its constitution and laws, but no such grants or privileges shall exceed in value the portion of the accumulations to the credit of such certificate at the time such grant or privilege is allowed.” ,

Section 8 enumerates the various classes of benefit certificates which a fraternal benefit society has power to issue. Included in this enumeration are whole life, limited payment life, term and old age certificates. Endowment certificates are not included, and failure to so include them is, in our opinion, indicative of an intention on the part of the legislature that no power or authority should exist in such societies to issue such certificates, their authority being limited to the classes enumerated.

It has been argued that the latter part of section 5, reading: “. . . Any such society collecting a level rate of contribution, under any of its benefit certificates, based upon any table of mortality allowed for valuation purposes in this act, may grant to members holding such certificates extended and paid up protection or such withdrawal equities as may be allowed under its constitution and laws, but no such grants or privileges shall exceed in value the portion of the accumulations to the credit of such certificate at the time such grant or privilege is allowed,” specifically authorizes the issuance of endowment certificates. It is evident, however, that section 5, although placed before section 8 in numerical order, is intended to grant certain privileges in connection with the benefit certificates authorized by section 8 and to describe more specifically some of such certificates, and not to extend the classes of benefit certificates authorized in section 8.

For example, section 8 authorizes the issuance of old age certificates. Section 5 restricts the old age benefits which may be paid, to benefits which mature for payment when the member reaches sixty years of age.

Section 5 likewise authorizes the granting to members holding benefit certificates under which there is collected a level rate of contribution extended and paid up protection or certain withdrawal equities. It should be noted, however, that this grant is restricted to members holding “its benefit certificates,” and it, therefore, becomes necessary to refer to section 8 to determine the classes of benefit certificates authorized to be issued.

You are, therefore, advised that, in our opinion, the classes of benefit certificates which a fraternal benefit society organized and existing under the above Act of May 20, 1921, is authorized to issue are restricted to those classes enumerated in section 8 of the act; that the classes enumerated do not include endowment insurance; and that, therefore, such fraternal benefit society has no authority or power to issue a twenty-year endowment benefit certificate.

Nothing in this opinion, however, is to be construed as limiting the authority of any such fraternal benefit society to issue old age benefit certificates which mature for payment to the member at not under sixty years of age.

From C. P. Addams, Harrisburg, Pa.


author: Marx, P. J.,

text:
    Frederick’s Estate.

      Declaratory judgment — Act of June 18, 1928 — Construction—Jurisdiction, O. C.

    1. The Uniform Declaratory Judgments Act of June 18, 1923, P. L. 840, enlarges the power of courts of record within their respective jurisdictional limits, but it does not extend those limits.
    2. The Orphans’ Court is a court of special statutory jurisdiction. Neither before nor since the Orphans’ Court Act of June 7, 1917, P. L. 363, did if have jurisdiction to determine abstract questions of title to real or personal property, though the construction of wills might be involved. It is only as cause's under the jurisdiction of that court require it that quantity or character of title, or parties interested, may be adjudicated by the Orphans’ Court.
    Petition for declaratory decree. O. C. Berks Co.

      Thomas K. Leidy, for petitioner.
    April 16, 1927.
   Marx, P. J.,

New Jerusalem Lutheran Church, devisee in remainder, petitions for a declaratory decree, construing the will of David Frederick, deceased, and defining the title of petitioner in the real estate of said decedent.

The petition avers the death of David Frederick, April 7, 1893., survived by his wife, Amelia Frederick, and a son, William. Decedent’s will provides, inter alia:

“Item — I also give and bequeath to her my said wife the use, improvement and income of my real estate situate in Rockland Township, Berks County, Penna., containing sixty-three acres, more or less, and also a tract in District Township, County and State aforesaid, containing eight acres, more or less, for and during her natural life or as long as she remains single.
“After the death or marriage of my said wife then I give and bequeath said real estate to my son, William, provided he then lives, but should he die without issue before my said wife, then I give and bequeath said described real estate with the appurtenances to the New Jerusalem Church in fee simple.”

The son, William Frederick, died Oct. 25, 1894, survived by a son, Jonathan, who died Oct. 26, 1894. William also left his wife, Louisa, the mother of Jonathan, and now the wife of David Moyer. Amelia Frederick, widow of David, died in 1923. The petition does not say in whom possession of the real estate rests at this time.

Under these facts we are asked to enter a declaratory decree, under the Uniform Declaratory Judgments Act of June 18, 1923, P. L. 840, defining petitioner’s title under the recited portion of testator’s will.

Section 1 of this act provides “That courts of record, within their respective jurisdictions, shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.” Subject to the provisions of this section, the act enumerates (although not to the exclusion of other parties and powers under their respective jurisdictions) in section 4, those who may seek a declaratory judgment, and the ends and purposes to which that judgment may be directed. Stripping this section of words not in any way applicable to the facts of this case, we would read: “Any person interested, as or through an . . . fiduciary, . . . devisee, ... in the administration of the estate of a decedent, . . . may have a declaration of rights or legal relations in respect thereto: (a) To ascertain any class of . . . devi-sees. ... (c) To determine any question arising in the administration of the estate, . . . including questions of construction of wills. . . .”

Section 12 provides: “This act is declared to be remedial. Its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations, and is to be liberally construed and administered.”

It is evident that the act enlarges the powers of courts of record within their respective jurisdictional limits, but does not extend those limits. They can do no more than before, within their proper domains, but those domains remain unchanged. If this court had jurisdiction over the subject-matter or the parties before this enactment, such a decree may be made; if no jurisdiction then, there is none now.

The construction of this will does not arise in the course of settlement of testator’s estate, nor does the petition aver any facts which bring such construction and decree within reach of the defined powers of this court. Testator’s son William, and William’s son Jonathan, died before the death of testator’s widow, Amelia. Petitioners seek determination of the question: Under the facts recited, does title in fee in the real estate of testator now reside in Louisa Moyer, mother and heir of Jonathan Frederick, or does it reside in New Jerusalem Lutheran Church?

The Orphans’ Court is a court of special statutory jurisdiction. Neither before nor since the Orphans’ Court Act of June 7, 1917, P. L. 363, did it have jurisdiction to determine abstract questions of title to real or personal property, though the construction of wills might be involved. It is only as causes under the jurisdiction of that court require it, that quantity or character of title, or parties interested, may be adjudicated by the Orphans’ Court. The matters averred in this petition do not bring the prayer of the petition within the jurisdiction of this court, and the decree prayed cannot be made.

Now, April 16, 1927, the petition is accordingly dismissed.

From Charles K. Derr, Beading', Pa.


author: Geaff, P. J.,

text:
    Cameron, Secretary of Banking, v. Doyno.

      Practice, C. P. — Judgment n. o. v. — New trials.

    1. The court will not give judgment n. o. v. for the defendant in a case where the plaintiff has made out a prima facie case and the defendant has produced uncon-tradicted evidence, part of which is verbal, which, if true, would be a complete defence.
    2. When the court believes that the jury has capriciously disregarded the evidence, though the court cannot grant judgment n. o. v., yet a new trial will be granted.

      Banks and banking — Stockholders—Liability—Transfer of stock — Act of May 5, 1911, P. L. 126.

    3. In an action against a stockholder of a bank to recover an assessment on stock, the presumption is that the defendant, as registered owner, is liable, but he may show that he had signed a transfer and delivered it to the bank and that the bank had accepted it.
    Motion for judgment n. o. v. and for a new trial. C. P. Lawrence Co., Sept. T„ 1926, No. 132.

      Robert L. Wallace, for plaintiff; James A. Chambers, for defendant.
    Aug. 9, 1927.
   Geaff, P. J.,

33rd judicial district, specially presiding,

This action was instituted to recover an assessment made upon shares of stock after the failure of the First State Bank of New Castle. The jury returned a verdict in favor of the plaintiff, and there is now before us a motion for judgment non obstante veredicto and a motion for a new trial.

The First State Bank of New Castle was closed by the Secretary of Banking in September, 1925, and 140 shares of the capital stock were at that time registered in the name of the defendant. The certificate of stock representing the 140 shares was found at the bank in the safe deposit box of Victor Doyno, president of the bank. This certificate had been assigned in blank by the defendant’s guardian. The defendant’s evidence was as follows: That the shares of stock had been transferred by Victor Doyno to his brother Antonio in 1923 to secure a loan made by the latter to the former. Later, Antonio Doyno, the defendant, was adjudged mentally incompetent and a guardian appointed. Nicola, an attorney-at-law, was later appointed guardian during the summer of 1924, and at once proceeded to adjust the affairs between Victor and Antonio Doyno. The transaction involved many matters, including the stock in question. Negotiations were conducted between the guardian of the defendant and Victor Doyno and his attorneys, and it was agreed to retransfer the stock to Victor Doyno. The Cleveland Trust Company was appointed agent to carry the agreement into effect, and papers, including the stock, were delivered to it in escrow. The stock was then mailed to Victor Doyno in January, 1925, and the letter received and opened by Edmondo Doyno, secretary of the board of directors of the bank. The stock was given to Victor Doyno, who held it without formal transfer pending a sale to some third person, as agreed by him, Edmondo Doyno and the bank’s attorney. Victor Doyno testified-that Edmondo Doyno had been present at a meeting in Cleveland and was thoroughly conversant with the arrangement to retrans-fer the stock and the instructions relating thereto. Under the by-laws, the secretary of the board of directors had charge of the stock books and issued and attested all certificates of stock.

The Uniform Stock Transfer Act of May 5, 1911, P. L. 126, provides: “That nothing in this particular act shall be construed as forbidding a corporation to hold liable for calls and assessments a pex-son registered on its books as the owner of shares of capital stock.”' This provision is subject to the modification that, if the corporation accepts or consents to the transfer, the transferor will be relieved from liability. If an assignment is delivered to the officers of the company whose duty it is to make the transfer, or whose duty it is to sign and issue new certificates, statements by such officers to the effect that the transfer was recognized or agreed to is sufficient to bind the company and relieve the transferor from further liability: Schmitt v. Kulamer, 267 Pa. 1. The burden is upon the defendant who sets up such a defense of proving the acts which will release him from liability: Schmitt v. Kulamer, supra.

The defendant contends that a verdict should have been directed in his favor. A part, at least, of the defense was dependent upon verbal evidence, and, although uncontradicted, we cannot say that it was so conclusive as to justify binding instructions. We believe that the jury should properly pass upon the credibility of the witnesses: Holzheimer v. Lit Brothers, 262 Pa. 150, 153. We conclude that the motion for judgment non obstante veredicto should be refused.

The first reason for a new trial is that the verdict was against the weight of the evidence. The plaintiff proved a prima facie case by evidence that the defendant was registered upon the books of the bank as the owner of the stock in question. The burden thereupon devolved upon the defendant of excusing himself from liability. The defendant’s evidence is uncontradicted. Antonio Doyno was mentally incompetent at the time of the alleged transfer. Negotiations were conducted by his guardian, the stock delivered in escrow to the Cleveland Trust Company and a written letter of instruction given the company by representatives of each side. The stock was delivered in January, 1925, with instructions to transfer upon the books. This was known to the officers whose duty it was to make such transfer. The bank was closed eight months later, but there is no evidence whatever to warrant the conclusion that the assignment was made in bad faith. We believe justice requires that a new trial be granted. Juries should not capriciously disregard the evidence, and in such cases a new trial should be granted: Shaughnessy v. Director General of Railroads, 274 Pa. 413.

And now, Aug. 9, 1927, the motion for judgment non obstante veredicto is refused and the rule heretofore granted discharged.

And now, Aug. 9, 1927, the verdict of the jury is set aside, the motion for a new trial granted and the rule heretofore issued made absolute.

From William MeElwee, New Castle, Pa.


author: Steakne, J., LamorelIíE, P. J.,

text:
    Megargee’s Estate.

      Wills — Estate pur autre vie — Income.
    1. A testator may lawfully create an estate pur autre vie In income.
    2. Under a gift to take effect on the death of testator’s widow “in trust to pay the said net rents, issues, profits, interest and income unto all my [testator’s] children that shall then he living and the lawful issue of such of them as shall then he deceased, their respective heirs, executors, administrators and assigns for and during all the term of the respective natural lives of them, my said children and the life of the survivor of them, so nevertheless that such lawful issue take and receive such part and share only as her or their deceased parent would have had and taken if then living,” with a gift over of the principal immediately upon the expiration of one year after the decease of the last surviving child “unto all and every my grandchild and grandchildren if there be more than one that shall then be living and the lawful issue of such of them as shall be deceased, their respective heirs, executors, administrators and assigns,” etc., a grandson, the only-surviving child of a daughter who predeceased the widow, does not take an absolute interest in the income until the period of distribution of the capital and on his death such income is payable to his children as distinguished from his executors.

      Evidence — Competency of witness — Party dead — Trusts and trustees— Act of May 28, 1887.

    3. At the audit of an account filed for deceased trustees, a person claiming under a contract made by him with the deceased trustees is incompetent, under the Act of May 23, 1887, P. L. 158, to testify as to the existence of such contract, inasmuch as his interest is adverse to the rights of the deceased trustees, which have passed to the substituted trustees.
    Exceptions to adjudication. O. C. Phila. Co., Oct. T., 1878, No. 214.
    Gest, J., Auditing Judge. — Samuel Megargee died on June 29, 1865, leaving a will, by which he devised his residuary estate to Daniel M. Fox and Robert M. Logan and the survivor of them in trust “to pay the income to his wife Margaret for the term of her natural life and widowhood and after her decease or remarriage in trust to pay the said net rents, issues, profits, interest and income unto all his children that should then be living and the lawful issue of such of them as should then be deceased, their respective heirs, executors, administrators and assigns, for and during all the term of the respective natural lives of them his said children and the life of the survivor of them so nevertheless that such lawful issue should take and receive such part and share only as his, her or their deceased parent would have had and taken if then living . . . and immediately upon the expiration of one year after the decease of the longest or last survivor of them his said children, then he gave, devised and bequeathed all his said residuary estate, real and personal and mixed whatsoever and wheresoever and including all net income thereof accumulated between the day of the decease of the last surviving child and the expiration of the said one year thereafter unto all and every his grandchild and grandchildren if there be more than one that should then be living and the lawful issue of such of them as should then be deceased, their respective heirs, executors, administrators and assigns forever in equal parts and shares by heads and not by stocks so nevertheless that such lawful issue take and receive such part and share only as his, her or their deceased parent would have had and taken if then living.”
    Robert M. Logan resigned as trustee and was discharged March 22, 1879. Daniel M. Fox died on March 20, 1890. Henry K. Fox was appointed co-trustee Feb. 17, 1883, and died Aug. 15, 1925. Samuel Megargee Wright was appointed co-trustee on Sept. 15, 1906, and died on Dec. 23, 1926, leaving a will admitted to probate on Dec. 30, 1926, when letters testamentary were granted to Heloise C. Wright, who has filed this account. By his will, the testator authorized his wife and such of his children as should be over twenty-one years of age, or in case of the decease of his wife, the said children over the age of twenty-one years to fill all vacancies that may occur from time to time in the executorship and trusteeship under the will, as often as the same may happen, .so that the entire burden of duty herein shall not devolve alone upon any one surviving or acting executor or trustee, namely, to nominate with unanimity and with the approval of the then for the time being acting or surviving executor or trustee, some other suitable person or persons to the Orphans’ Court of the County of Philadelphia, and if the said court shall ratify and approve the same, then the appointee shall stand as the co-executor or co-trustee with him who shall remain or be then acting as fully and with the same powers, duties and directions co-jointly v/ith such acting or surviving executor or trustee, or in both capacities, as the case may be, as though originally named and appointed by the testator in his will. And, accordingly, on Feb. 15, 1927, the court appointed the Fidelity-Philadelphia Trust Company and Henry G. Brengle, named by Hannah or Hannah M. Chapman, surviving child of the testator, as trustees under the will.
    Margaret Megargee, the widow of the testator, died on April 12, 1893. The testator left him surviving children and issue of deceased children who also survived Margaret Megargee, viz., Hannah or Hannah M. Chapman, a daughter of decedent, who is living and without issue, and Samuel Megargee Wright, a grandson, being the only surviving child of Mary Wright, a daughter of decedent, who predeceased Margaret Megargee, widow of decedent, on June 24, 1869. Samuel Megargee Wright, who died Dec. 23, .1926, has issue now living, being Witney Wright, Margaret M. Wright and Hannah Wright Sullivan, all of age. Calhoun Megargee, a son of the testator, died in 1880, leaving issue a daughter, Mary C. Megargee, who died in 1881, an infant. Other children of the decedent died without issue.
    This account is filed by Heloise C. Wright, executrix of Samuel Megargee Wright, as the account of Henry K. Fox and Samuel Megargee Wright to Aug. 15, 1925, date of the death of Henry K. Fox, and of Samuel Megargee Wright, surviving trustee, from Aug. 15, 1925, to Dec. 23, 1926, the date of his decease. She has also filed a supplemental account as executrix of Samuel Megargee Wright to May 5, 1927. Strictly speaking, this is irregular. On the death of Henry K. Fox, his executor, together with Samuel Megargee Wright, surviving trustee, should have filed their account as trustees, and, on the death of Samuel Megargee Wright, his executrix should have filed his account as trustee, and the succeeding trustee should without undue delay have been appointed. Had the regular and orderly procedure been followed, much of the ensuing trouble and litigation might have been avoided, as no account has been filed for many years. This account, however, as filed, is fortunately not objected to by any. party in interest and will be confirmed.
    The claim was presented of Henry L. Fox and Townsend Sharpless, trading as Daniel M. Fox & Sons, for rent of office space and facilities, alleged to have been engaged by Henry K. Fox and Samuel Megargee Wright, deceased, surviving trustees, for the purposes of the trust estate, from June 10, 1921, to July 18, 1927, six years, one month and eight days, at $50. a month, totaling $3663.33, with interest, $705.19, total $4368.52, and there was a credit allowed of a payment on account of $589.85, leaving a balance which was claimed of $3778.67. Townsend Sharpless, being a member of the firm of Daniel M. Fox & Sons, composed in 1921 of himself and Henry K. Fox, was offered as a witness to prove the contract alleged to have been made in 1921 by Henry K. Fox and Samuel Megargee Wright, the trustees, who are now both deceased, with the said firm, of which, at the time of the alleged contract, Henry K. Fox was the surviving partner of Daniel M. Fox. The competency of this witness was objected to as to all matters occurring before the deaths of the said trustees. The objection was overruled; an exception was noted, and the testimony was received, subject to the subsequent ruling of the court upon the competency of the witness. I have since considered the question with care, with the aid of the briefs submitted and the decisions therein cited.
    Mr. Gilbert, on behalf of the claimants, cited several cases to which I shall now refer. Some of them, such as Dillon’s Estate, 269* Pa. 234, and Danish Pride Milk Co. v. Marcus, 272 Pa. 340, relate to the law of agency. In the former case, an agent, acting for a disclosed principal, was held competent, after his principal’s death, to prove a contract of employment of an attorney-at-law. It was held, and the decision was clearly correct, that the agent had no such adverse interest to the principal’s estate as to disqualify him. In Danish Pride Milk Co. v. Marcus, 272 Pa. 340, an agent made a contract of sale which was confirmed by the vendor; the agent died and the vendee was held to be a competent witness to testify to the oral agreement made with the agent, the latter not being a party to the thing or contract in action. So, in Gill’s Estate, 268 Pa. 500, an attorney-at-law who drew an agreement was held to be a competent witness after the death of one of the parties to the agreement, which case is similar to Sargeant v. National Life Ins. Co., 189 Pa. 341, and American Life Ins. Co. v. Shultz, 82 Pa. 46, both cases of agency. The learned counsel for the claimant argued that the trustees in this case, Henry K. Fox and.Samuel Megargee Wright, were agents for the estate of Samuel Megargee, but this proposition, hardly needs refutation. The estate was not a person but a thing. It was not a legal entity, or at most persona ficta, and could not appoint an agent. The distinction between a trustee and an agent is vital and is not a mere matter of words or description. None of these cases, or others like them that may be cited, have any application to the present. In Norristown Trust Co. v. Lentz, 30 Pa. Superior Ct. 408, which was also cited, the/facts are likewise very different. Bums held a judgment against Lentz, and both plaintiff and defendant died. The administrator d. b. n. c. t. a. of Burns sued the executor of Lentz on a sci. fa. sur judgment and certain legatees under the will of Lentz were held competent to prove that the judgment had been paid by the executor of Lentz to the original executor of Bums, then deceased. The court said that while the witnesses were interested, their interest was not adverse to the Lentz estate, and^while it was adverse'to the Burns estate, they were competent as to all matters since the death of Bums and were not rendered incompetent by the death of the original executor of Burns, because he was not a party to the thing or contract in action, viz., the judgment and the bond on which it was entered. I cannot see that this case is any authority for the present. The only decision that merits' consideration is Rozelle v. Lewis, 37 Pa. Superior Ct. 563. There the syllabus reads: “Where an executor with power of sale executes a contract in writing to sell the land of his testator and the executor subsequently dies, the other party to the contract may testify as to matters occurring between him and the executor in the latter’s lifetime.” The syllabus is too broadly worded. Catharine Schadt owned two lots of ground described as Nos. 7 and 8. Schadt’s two executors, Tropp and Seheidell, under a power of sale in the will, sold No. 7 to Rozelle, the plaintiff, and Tropp died. Seheidell, as surviving executor, agreed to sell No. 8 to Lewis’s sons, who assigned to Lewis, the defendant, and Seheidell conveyed No. 8 to Lewis with warranty against all persons claiming from Catharine Schadt or her executor. A dispute arose between Rozelle and Lewis as to the location of the line between the two properties, and Rozelle brought ejectment against Lewis. As the court said: “Tropp, it is true, was a party to the contract under which the plaintiff claims, but the right which the plaintiff derived thereby was not the personal right of Tropp, but the right of the estate which he represented. Again, the subject of controversy was the right to the possession of the strip of land described in the writ, and, to state the proposition in another form, the interest which the defendant represented in that subject of controversy was not the interest of Charles Tropp, but the interest of Cath-arine Schadt, or the beneficial owners of her estate, and if this be true, the plaintiff in testifying was not testifying under the presumed influence of an interest that was adverse to the right of Charles Tropp.” It seems clear to me, therefore, that Rozelle v. Lewis does not touch the present case. On the other hand, Fisher’s Estate, 7 Pa. C. C. Reps. 17, is an authority against the competency of the witness, and Ashman, J., in that case carefully distinguished between an executor or administrator and a mere agent. So in Irwin v. Nolde, 164 Pa. 205, Nolde, claiming as a trustee, brought an action of trespass q. c. f. against Irwin for damages for forcible ejectment of the plaintiff, who claimed under an alleged lease from the society of which the plaintiff was trustee. The defendant being dead, the plaintiff was offered as a witness and was held incompetent.
    It may be that there is no decision in Pennsylvania that can be said to be on all fours with the present case, but I have no doubt that it comes directly within the letter and the spirit of the Act of May 23,1887, § 5, cl. e, P. L. 158: '“Nor, where any party to a thing or contract in action is dead' and his right thereto or therein has passed, either by his own act or the act of the law, to a party on the record who represents his interest in the subject in controversy, shall any surviving or remaining party to such thing or contract or any other person whose interest shall be adverse to the said right of such deceased party be a competent witness to any matter occurring before the death of said party,” etc. Every phrase of this act is relevant here. The trustees under the will were alleged to be a party to the contract and their right has passed to the substituted trustees who are a party to the record and represent the interest of the testamentary trustees; so how can Townsend Sharpless, being the surviving; party to the contract, be a competent witness, his interest being adverse to the rights of the deceased trustees? The question admits of only one answer, and as I am convinced that Sharpless was incompetent, I strike out all of his testimony relating to matters that occurred before the deaths of Henry K. Fox and Samuel Megargee Wright. It is, therefore, unnecessary and, I think, inadvisable to consider it or the serious questions raised as to the credibility or improbability of his testimony. As the claim for rent was based solely on the alleged contract therefor and there was no evidence to support it other than the testimony of Townsend Sharpless, I dismiss this claim. And what has been said concerning this claim applies also to the claim of Townsend Sharpless individually for appraisals of real estate made for investment purposes from July, 1923, to the death of Samuel Megargee Wright, the surviving trustee, $350, plus interest, and, less a credit admitted, aggregating $336.46. This claim is also dismissed for the same reasons. . . .
    Another question was argued concerning the distribution of the one-half share of the income formerly payable to Samuel Megargee Wright during his lifetime. It was contended by Heloise C. Wright, as his executrix, that this income now becomes payable, as an estate pur autre vie, to her as executrix, until the death of Hannah Chapman, when, under the will, the trust will terminate and the estate be distributable to the testator’s grandchildren then living and the issue of such as shall then be deceased in equal shares “by heads” (that is, per capita), and not “by stocks” (that is, per stirpes), so, nevertheless, that such lawful issue shall take such part or share only as his, her or their deceased parent would have taken if living. Mr. Trinkle relied upon Little’s Appeal, 81 Pa. 190, and also referred to what was said by Hanna, P. J., in a prior adjudication, Dec. 15, 1903. There the administrator of a deceased granddaughter of testator, Mary C. Megargee, she being the daughter of a deceased son, Calhoun Megargee, claimed that her estate was entitled to her deceased father’s share of the income, and Judge Hanna held that she was not entitled because the granddaughter died in the lifetime of the widow, but added, “had she survived the widow, a very different question would have arisen. She would then take her father’s share, and, in the event of her death in the lifetime of her survivor (Mars. Chapman), it would be payable to her administratrix until the death of Mrs. Chapman.” And, consequently, Judge Hanna awarded the income in equal shares to Mrs. Hannah Chapman, the daughter, and Samuel Megargee Wright, the grandson, of testator, disregarding the claim of the administratrix of Mary C. Megargee. This remark of Judge Hanna was, in the circumstances, a mere dictum and cannot be considered as establishing the law of the case. And, as the law stood when he filed his adjudication, he might very possibly have been correct; but the later authorities have so affected the principle of Little’s Appeal, on which Mr. Trinkle relies, that it cannot be considered as ruling the present case. The language of the two wills is different, and I think the present ease is governed by Rowland’s Estate, 141 Pa. 553; s. C., 151 Pa. 25; Maxwell’s Estate, 261 Pa. 140, and other cases cited by counsel, and I am, therefore, of the opinion that Samuel Megargee Wright’s one-half share of the income is now payable in equal shares to his three children, and it will be so awarded.

      William N. Trinkle and Keller Hughes Gilbert, for exceptions.

      Clement B. Wood, contra.
    May 26, 1928.
   Steakne, J.,

Testator died in 1865, leaving a widow and seven children. By his will he gave the residue of his estate, in trust, to pay the income to his wife for life, or widowhood, and then in further trust:

“And from and immediately after the decease or intermarriage of my said wife, whichever shall first happen, then in trust to pay the said net rents, issues, profits, interest and income unto all my children that shall then be living and the lawful issue of such of them as shall then be deceased, their respective heirs, executors, administrators and assigns, for and during all the term of the respective natural lives of them my said children and the life of the survivor of them so nevertheless that such lawful issue take and receive such part and share only as his, her or their deceased parent would have had and taken if then living . . . and from and immediately upon the expiration of one year after the decease of the longest or last survivor of them my said children, then I give, devise and bequeath all my said residuary estate, real and personal and mixed whatsoever and wheresoever and including all net income thereof accumulated between the day of the decease of the said last surviving child and the expiration of the said one year thereafter unto all and every my grandchild and grandchildren if there be more than one that shall then be living and the lawful issue of such of them as shall then be deceased, their respective heirs, executors, administrators and assigns, forever, in equal parts and shares by heads, and not by stocks, so nevertheless that such lawful issue take and receive such part and share only as his, her or their deceased parent would have taken if then living. . . .”

In 1893 the widow died, having outlived all of the seven children, except one daughter, who still survives. A grandson (who was a child of a deceased daughter) was the only surviving issue of deceased children who was living' at the death of the widow.

The grandson died in 1926. From 1893 (the date of the widow’s death) until 1926, the daughter and the grandson shared the income equally.

At the audit of the account, the executrix of the grandson claimed the one-half share of income, theretofore paid unto him, until the termination of the trust (on the death of the surviving daughter). The grandson left surviving him three children, who contend that this share is payable unto them under the terms of the will.

The Auditing Judge declined to award this share to the executrix of the grandson, and awarded it to his children. The executrix filed exceptions to the award.

Exceptant’s contention is that the testator created a vested estate pur autre vie in the income which he gave to his children and issue of deceased children who should be living at the death of his -widow until the death of the last surviving child. She relies upon Little’s Appeal, 81 Pa. 190, and the cases following it. On the other side, it is urged that the will exhibits an intention to preserve the estate for the grandchildren of the testator and their issue until the death of the survivor of his children, when division of the principal is to be made to them. They insist that the doctrine of Rowland’s Estate, 141 Pa. 553, and similar cases, is applicable, and not that of Little’s Appeal.

It is undoubtedly true that a testator may lawfully create an estate pur autre vie in income. An excellent statement of this principle has been given by our President Judge in Leech’s Estate, 18 Dist. R. 527 (page 531), affirmed in 228 Pa. 311: “. . . there is no difference in substance between a gift of income and a gift of principal; there is no presumption that because the gift is of income, it must necessarily cease on the death of the beneficiary. It is quite possible to make a bequest of income to cover the entire period of the trust, and then the beneficiary will transmit his property in the income, in case of his death, to those who succeed to his estate, either under his will or under the intestate laws.”

Judge Lamorelle again emphasized this thought in his dissenting opinion in Babcock’s Estate, 18 Dist. R. 453 (page 456): “An estate pur autre vie, like its title, is somewhat archaic and infrequent, but it is neither unlawful nor unreasonable. If a testator may devise an estate to A for life and to B in fee, he may reasonably give the income of a trust fund, different in character, to C for the life of A, and then, on the death of A, give the principal of the trust fund to some one else.”

The leading authority for this legal principle is Little’s Appeal, supra. In that case the testator created a trust which was to continue until the marriage or death of his daughter Elizabeth, to whom, after his wife’s death, he gave two-thirds of the income and the remaining one-third to his daughter, Martha. There was no gift over of the income upon the death of Martha, nor was there an express limitation of the income to Martha’s life. Martha died intestate, leaving a husband and children, in the lifetime of Elizabeth, who had remained unmarried. It was there held that this was a vested gift to Martha for the life of Elizabeth, subject to being determined by her marriage, and, therefore, passed to Martha’s legal representatives.

While conceding the existence of this legal principle, nevertheless, it is always the intention of the testator which must govern. As was said by Penrose, J., in Babcock’s Estate, supra (page 454): “The duration of an estate created by will is always a question of intention, to be determined, not by the precise, literal meaning of the words, but by the effect and consequences and by its harmony with the general scheme of the will, taken in its entirety.”

In Rowland’s Estate, the will directed that certain sums be paid out of the income to certain of his children annually during life, the net balance of income to be divided annually, per stirpes, among his five living children, the issue of two deceased children, and the issue of any other of his children who might die leaving issue. Such distributions were directed to be made annually until the death of the last survivor of the testator’s children, when the principal was to be divided equally, per stirpes, among the issue then living of the seven children. A son of the testator died, leaving no issue surviving him, and, as in the present case, the administrator of his estate claimed the share of income theretofore paid to the son until the death of the last surviving child. It was there held that it was only living children of the testator and living issue of deceased children, the latter to take in the right of the parent, or per stirpes, that shared in the income. It was decided that each child living at the death of the testator took a vested interest in the income, but for his own life only. Justice Williams said, page 560: “An examination of the several provisions of the will shows that the intent which dominates the instrument is to preserve the entire estate for the grandchildren, and to make division among them per stirpes on the death of the last surviving child.”

And, again', on page 561: “. . . each child living at the death of the testator took a vested interest in the income, but reduces his interest to an estate for his own life. This effectuates the purpose of the testator. It provides for his own children while they live, and it secures his estate to his grandchildren without loss, when the event upon which their right to take as absolute owners shall happen.”

The test as to whether any given case falls under Little’s Appeal, or under Rowland’s Estate, is found in the case of Huddy’s Estate, 257 Pa. 528. This decision affirmed the judgment of the Superior Court, where the opinion was delivered by Mr. Justice Kephart, who said, on page 533: “All of the cases following Little’s Appeal are distinguished by the absence of any purpose of the testator to appropriate the estate exclusively to a class of legatees,” and cites Rowland’s Estate and Babcock’s Estate as illustrations of this latter principle.

Applying this test, which we believe to be the correct measure, we have examined all of the authorities cited by counsel and which we find reported. Following Little’s Appeal are Ritter’s Appeal, 190 Pa. 102; Hildebrant v. Hildebrant, 42 Pa. Superior Ct. 190; Spang’s Estate, 49 Pa. Superior Ct. 314; Harned’s Estate, 54 Pa. Superior Ct. 47; Bechtel’s Estate, 85 Pa. Superior Ct. 14; Shuster’s Estate, 4 D. & C. 119. In each of the foregoing cases an examination discloses the gift of income to individuals, either by name or designation, with no gift over to any class as such.

Another class of cases follows Little’s Appeal. In these cases income is given to children for their respective lives, and upon death of a child during continuation of the trust, the testator directs the income of the deceased child’s share to be paid to such deceased child’s children or issue. See Leech’s Estate, 228 Pa. 311; Dillon’s Estate, 47 Pa. Superior Ct. 158; Lafferty’s Estate, 59 Pa. Superior Ct. 24.

In these cases, while the children have life estates only, issue of a child substituted at the child’s death are held to have an estate pur autre vie, on the theory that the gift to the issue is not limited to a life estate, and there is no gift over of this share of income.

Under Rowland’s Estate and the' cases following it, the question is whether the testator intended to create estates pur autre vie or whether he intended to provide for distribution of the income among living descendants until the termination of the trust: Huddy’s Estate, 257 Pa. 528; Maxwell’s Estate, 261 Pa. 141; Lippincott’s Estate, 2 D. & C. 1; Reeves’s Estate, 8 D. & C. 277.

In Huddy’s Estate, the bequest was to a niece for life, and, “from and immediately after her decease, then to pay the said income in equal shares to her children . . . and to the children of any of her said children who may be deceased . . . until the death of the last of my said niece’s children.”

The principal was then to be divided equally “between my said niece, grandchildren, and the issue of any grandchildren who may be deceased, per stirpes”

It was there held that a grandniece having died without issue, her interest in the income terminated with her death. Rowland’s Estate was cited and the opinion of the Superior Court, reversing the court below, was sustained under the opinion of Mr. Justice Kephart hereinbefore referred to.

In Maxwell’s Estate, a testator having eight children and owning certain stock bequeathed his residuary estate to trustees for the benefit of his wife for her life and directed his trustees, after her death, to hold said stock “for and during the lifetime of my children and the survivor of them and to pay out of the dividends realized therefrom the sum of $600 per annum to my daughter . . . during her lifetime, and the balance of said dividends, if any, to divide equally among my other children, share and share alike, the issue of any deceased child to take its parent’s share. And upon the death of my said daughter ... I order my said trustees to divide the entire dividends realized from my said stock equally among my children, share and share alike until the death of my last surviving child. Upon the death of my last surviving child, I order and direct my trustees ... to sell my stock . . . and divide the proceeds equally among my grandchildren, per stirpes.”

After the death of testator and his wife, one of their children died intestate, unmarried and without issue. It was there held that the testator intended the children and grandchildren to be the sole objects of his bounty and to confine the succession to the share of any dying without issue to the survivors, to the exclusion of personal representatives. Mr. Justice Potter, in rendering the opinion, said, page 143: “While there is no express gift over of any part of the income upon the death of one of testator's children before the arrival of the time fixed for final distribution of the principal, the will shows clearly an intention that the entire income shall be paid to testator’s children and grandchildren and to no other persons.” Again, page 146: “Technically, the gift was pur autre vie. . . . Why should a mere fiction of the law be permitted to govern in such a case as this when it is apparent that the testator intended her children and grandchildren to be the sole objects of her bounty?”

With the light of the foregoing authorities and applying the test enunciated in Huddy’s Estate, we have examined the words of the present will and have considered it from its four corners. We are irresistibly drawn to the conclusion that the testator had in mind two classes of beneficiaries, first, his children, and, second, his grandchildren. Clearly he desired his children or their issue living at the death of his widow to enjoy the income until the death of the last surviving child, when the principal should pass to his living grandchildren or living issue of deceased grandchildren. The words of the will show an intent to preserve the principal of the trust strictly fon his descendants and distribution of the income until the time of distribution arrives, per stirpes, among the living children and living issue of deceased children. He expressly excluded from income any children or issue of deceased children who might be deceased at the widow’s death. The income was given to children “that shall then be living and the lawful issue of such of them as shall be deceased.” It is a fair inference of intention that when the testator carefully limited the income at his wife’s death to his children and their issue who might then be living, and provided for a distribution of the principal to the grandchildren or their issue living at such period of distribution, he intended to limit the enjoyment of income to living children and living issue of deceased children.

To summarize: The fact that the testator clearly limited the principal tc his descendants living at the time of distribution; that the language used obviously limits the children to income for their “respective lives only;” and, also, that the division of income at the wife’s death is clearly limited to children and issue of deceased children then living, all point to a general intent that the income shall be distributed from time to time among testator’s descendants living at the time of distribution, rather than an intent to create an estate pur autre vie.

Great stress was laid at the argument upon the use of the words “their heirs, executors, administrators and assigns” in the gift of the income. It is to be observed that identical words are employed in the gift of the principal in remainder. Since the Act of April 8, 1833, P. L. 249, re-enacted in the Wills Act of 1917, words of inheritance or perpetuity are unnecessary to pass a fee in the absence of words of limitation: Rengier v. Kunzler, 246 Pa. 445. It is conceded that there was a vesting of an absolute estate in the income. The present inquiry, however, is to ascertain whether or not the vesting was for the life of the surviving child or was limited to the lifetime of the beneficiary. From a reading of the will as a whole and for the reasons herein-before given, we are of opinion that the vesting was for the life of the beneficiary only. We feel that the use of these words is not conclusive and controlling, that the testator intended to create, in the income, an estate pur autre vie.

Exceptant further contends that the question now raised was decided in this case in her favor by Judge Hanna in 1903, and is, therefore, res adjudi-cata. At that time the administrator of a deceased grandchild claimed a share of income. This was denied by Judge Hanna upon the ground that the grandchild had died in the lifetime of the widow and was, therefore, not one of the designated beneficiaries under the terms of the will. Judge Hanna did express an opinion that had the grandchild survived the widow, her administrator would have taken as herein contended. However, as pointed out by Judge Gest in the present adjudication, this opinion, not being necessary to the decision of the matter then before him, was “merely dictum,” and is, therefore, not controlling in the present inquiry.

The Auditing Judge agrees with us that he did not intend in his adjudication to hold or imply that Little’s Appeal has been overruled or1 modified by the later decisions herein quoted, but rather that Little’s Appeal does not apply where the general intent of the will is to appropriate the estate exclusively to a given class of legatees. This principle had not been so emphatically and repeatedly enunciated by the Supreme and Superior Courts when Judge Hanna wrote his adjudication. At that time the courts were more inclined to follow the strict canon of construction of Little’s Appeal rather than to seek and enforce the true intention of the testator to be discovered from the will in its entirety.

After a careful review of the entire record, we are of opinion that the Auditing Judge was correct in his interpretation, and the exceptions of Heloise C. Wright, executrix under the will of Samuel Megargee Wright, are dismissed.

The Auditing Judge sustained objections to the competency of the testimony of claimants who presented rent claims and claims for fees for appraising real estate arising from contracts alleged to have been made by them with the deceased trustees. All of the cases pertaining to this subject have been analyzed and discussed in the adjudication, and we cannot'profitably add anything to what the Auditing Judge has so well said. These exceptions are, therefore, dismissed.

All exceptions having been dismissed, the adjudication is confirmed absolutely.

LamorelIíE, P. J.,

dissenting. — It is said in Hawkins on Wills, Prop. i: “In construing a will, the object of the courts is to ascertain not the intention simply, but the expressed intentions of the testator, i. e., the intention which the will itself, either expressly or by implication, declares, or (which is the same thing) the meaning of the words — the meaning, that is, which the words of the will, properly interpreted, convey,” and, further (Prop, ill), that “technical words and expressions must be taken in their technical sense, unless a clear intention can be collected to use them in another sense and that other can be ascertained.” (Second Edition by Sanger, pages 1 and 5.)

Let us apply these fundamental rules to the will of Samuel Megargee.

The item pertaining to the trust is cited at length in the majority opinion of this court, and, therefore, need not again be set forth. Suffice it to say, that after creating a trust of the residuary estate, there is but one further reference to the •corpus thereof; where, on the death of the survivor of his children, testator gives, devises and bequeaths all of his residuary estate unto his grandchild or grandchildren “then living” and the lawful issue of such as shall “then be deceased, their respective heirs, executors, administrators and assigns, forever. ...”

Those to whom the Auditing Judge awarded the income are the three living children of Samuel Megargee Wright — the grandson 'who has recently died — and they admittedly have an interest in the principal, contingent upon their being alive at the termination of the trust; but nowhere in the will is there a gift of income to them at all.

In the same item of the will there is but one reference to income, and that is a gift of the income upon the death or remarriage of the widow, “unto all my children that shall then be living and the lawful issue of such of them as shall then be deceased, their respective heirs, executors, administrators and assigns. . . .” This is an absolute gift, by description, to certain persons contingent on their then existence. It is not to a class which may either diminish or enlarge, and the phraseology is similar to that of the gift of principal, a gift absolute; not for life at all, but for the duration of the trust. It may be stated as almost axiomatic that words — technical or otherwise — used more than once in the same item of a will, are to be treated as having the same or similar meaning. Unless, therefore, we ignore or eliminate the words “heirs, executors, administrators and assigns,” so far as. they refer to the gift of income, they must be considered as creating in apt words an absolute estate for the life of the trust; for note what follows: This income is to be paid to these particular persons and to no others “for and during all the term of the respective natural lives of them my said children and the life of the survivor of them,” so that such lawful issue shall take the share his deceased parent would have taken if “then” living. The “lawful issue” necessarily means the issue of any child of testator who is dead at the time the widow’s interest in the trust ceases. Such issue can take only what its parent (child of testator) would have taken if then alive. Again, be it noted that there is no further gift of income in event that such issue afterwards dies; in a word, the persons to whom income is given or to whom income is to be paid is then and of that time fixed as a finality; and each person, child or issue of a dead child, takes an estate absolute on its face with the necessary right of transmission until the trust finally terminates by the death of the survivor of testator’s children.

This was Judge Hanna’s ruling in his adjudication on the account filed on the death of testator’s widow, though it may not be treated as “the law of the case,” as I understand the children of Samuel Megargee were not then made parties by due notice of the audit and question to be submitted for decision. While words of inheritance may not be essential to a gift in fee, it would seem manifest that the addition of such words cannot be seriously treated as showing an intention not to give in fee. Such in effect is the deduction to be drawn from the majority opinion. The very words used to indicate an intention to do a certain thing are construed as determining testator’s purpose not to do that thing.

To brush aside an estate pur autre vie or during the life of a trust as a “technicality” is all very well, when it is a technicality and no more, as may be the case where the will, taken as a whole, manifests an intent to give but a life'estate; but failure to recognize such estate where there is not only nothing in the will showing an intent otherwise, but, on the contrary, where the will specifically shows such intent, is not construction but destruction. We have in the instant case neither the Rule in Shelley’s Case nor that against perpetuities before us; nothing but the right of testator to deal with his own as he deems fit; and so long as his will offends neither of these rules, it is our duty to find his intent in the language used by him and not in some fancied purpose of sending the estate “down his line.” I admit, as admit I must, that a fee in principal passes without words of limitation, but I cannot admit that because such fee would pass, we may, in construing a will, ignore these words in a gift of income.

I find nothing in the cases cited by counsel and referred to in the majority opinion at variance with these my views, when considered with regard to the will in the instant case. It may not be out of place to suggest that in Rowland’s Estate, 141 Pa. 553, the gift was not to one and his heirs, executors, administrators and assigns. On the contrary, there was a provision for annual distribution of income, not only to five children and issue of two_ deceased children, but also to the issue of any other children who might at any time have died leaving issue. Thus, substitution was clearly provided for in that will. Those answering the general description at each recurrent time for distribution were all and the only ones designated by testator, and these persons were treated as a fluctuating class. There, testator’s intent was found in the words he used.

So, likewise, in Huddy’s Estate, 257 Pa. 528, and Maxwell’s Estate, 261 Pa. 140, the income was given to certain issue of deceased children in such manner as would justify an inference that the gift ceased on the death of the recipient.

In the will now under discussion there was no provision for alternates; those who answered the description at one particular time, the beginning of the trust for descendants, were the only ones for whom provision is made, and, as before stated, they took for the life of the trust. No necessity existed for a gift over, for the one and only gift was absolute; the only condition on which issue could take at all was existence at the inception of their trust.

To sum up and to epitomize: A gift of principal at the termination of a trust cannot draw" to it a gift of interim income, where testator has clearly defined the gift of income as passing otherwise. Such reasoning would not find testator’s intention in the words used by him, but would ascertain his intention by ignoring them.

I record my dissent as to the award of income to the great-grandchildren; all other exceptions I would dismiss.

Henderson and Van Dusen, JJ., did not sit.


author: Martin, P. J.,

text:
    Commonwealth ex rel. v. Gutman et al.

      Corporations — Electors'—Directors—Voting.
    1. Where stockholders vote at a corporate election for fifteen directors, and the tellers report that sixteen candidates have received a majority of the votes cast, with a tie vote for four persons, and one of the latter withdraws his name, the meeting cannot declare that the twelve candidates who' have received the highest vote have heen elected and proceed to another election for three directors, at which the three persons who had been elected at the first election were defeated.
    2. In such case, the person who withdrew his name had a right to do so, and the fifteen nominees who had received a majority of the votes of the stockholders were duly elected, and no vacancy existed to be filled by a second election.
    Rule for judgment against defendants for want of sufficient answer. C. P. No. 5, Phila. Co., Dec. T., 1927, No. 1121.

      G. Butterworth, for plaintiff.

      Taylor, Robey, Hoar & Nicholson, for defendants.
    May 17, 1928.
   Martin, P. J.,

At the annual meeting of the stockholders of the Master Building and Loan Association an election was held for fifteen directors.

The stockholders exercised the privilege of cumulative-voting.

The tellers reported that sixteen candidates had received a majority of the votes cast, and a tie vote for Howard N. Oler, Robert J. Darrah, Mark C. Ballinger and John H. Oler.

When the report of the tellers was received, John H. Oler withdrew his name as a candidate. Then the result of the election was that fifteen candidates remained who had received a majority of the votes cast, and three of these candidates received the same number of votes. Fifteen directors were elected.

Although fifteen directors had been duly elected, a resolution was passed at the meeting that the twelve candidates who had received the highest vote should be declared elected directors and another election should be held forthwith for three directors.

At the second election, stockholders who had previously cumulated their votes for the twelve directors who had received the highest number of votes again cumulated and cast their votes for three candidates — Louis Gutman, Roy W. Thacklinburg and George S. Dunsafe, who claim to have been elected directors.

The three directors who received the tie vote at the first election filed this petition, praying for a writ of quo warranto to test the right of those claiming to hold the office of directors by virtue of the second election.

An answer was filed by the respondents to the petition, but none of the facts averred in the petition are denied.

The relators moved for judgment on the pleadings.

John H. Oler had the right to withdraw his name as a candidate. When he did so, the fifteen nominees who had received a majority of the votes of the stockholders were the duly elected directors, and no vacancy existed to be filled by a second election.

The majority of stockholders exercised their right to cumulate their votes and elected a majority of the directors. They cannot be permitted to defeat the right of the minority to representation on the board by arbitrarily declaring three vacancies to have existed when there were no vacancies, and by again cumulating their votes elect an entire board of their choosing and defeat the right of minority stockholders to be represented on the board. The second election, at which Louis Gutman, Roy W. Thacklinburg and George S. Dunsafe claimed to have been elected, was illegal and void.

And now, to wit, May 17, 1928, judgment is entered for relators and against respondents.

It is ordered and decreed that the relators, Howard N. Oler, Robert J. Darrah and Mark C. Ballinger, are duly elected directors of the Master Building and Loan Association, and that the respondents, Louis Gutman, Roy W. Thacklinburg and George S. Dunsafe, are not entitled to hold the office of directors.


author: Stotz, J.

text:
    Texas Company v. City of Bethlehem et al.

      Municipalities — Zoning ordinance — Building permit — Refusal of permit— Mandamus — Appeal—Remedy—Act of April 27, 1925.

    Where a zoning officer has refused a certificate of occupancy and his decision has been affirmed by the board of appeals, the remedy under the Act of April 27, 1925, P. L. 344, is by an appeal to the Common Pleas, and not by an application for a writ of peremptory mandamus against the city and the zoning authorities to compel the grant of the permit.
    Petition for writ of alternative mandamus. C. P. Northampton Co., Feb. T., 1927, No. 176.

      Butz & Rupp, for plaintiff; Booth & Barthold, for defendants.
   Stotz, J.

The plaintiff company is the owner of a lot of ground at the southwest corner of Broad Street and 13th Avenue, in the City of Bethlehem, and desires to erect thereon a one-story gasoline service station. To do so, it must comply with the terms of Ordinance No. 44, known as the “Building Code,” section 5 of which provides, inter alia, that it must first obtain from the city’s building inspector a proper permit. A permit could issue only after further compliance with Ordinance No. 523, known as the “Zoning Ordinance.” This latter ordinance provides (section 31) for an “administrative officer,” whose duty it is to administer and enforce the zoning regulations prescribed by the ordinance; and, furthermore (section 32), that “no vacant land shall be occupied or used and no building hereafter erected or structurally altered shall be used or changed in use until a certificate of occupancy shall have been issued by the administrative officer.” The plaintiff applied for, but failed to obtain from the administrative officer, a “certificate of occupancy,” such certificate being refused on the ground that the use of the proposed structure in that particular district without the consent of the property owners in the immediate vicinity was prohibited by the zoning ordinance. The ordinance also sets up a “a board of appeals,” and provides (section 39) that “appeals from the decision of the administrative officer may be made to the board of appeals by any person aggrieved, etc.” An appeal was taken by the plaintiff to the board of appeals, and the board sustained the administrative officer.

As to the proposed structure itself, the plans and specifications thereof were in full compliance with the rules, conditions and specifications of the Building Code, and, so far as that aspect of the matter was concerned, the plaintiff was entitled to receive from the building inspector a building permit. But the inspector, by reason of the zoning ordinance, could not legally issue such permit unless the plaintiff first complied with the further prerequisite of producing to him a “certificate of occupancy” from the zoning administrative officer, and without a building permit the plaintiff could not build.

The plaintiff at no time applied to the building inspector for a permit, but went no further than to the zoning authorities for a certificate of occupancy. Failing to secure such certificate, it, nevertheless, began the erection of the building. Thereupon, on information and complaint by the building inspector, the agent of the plaintiff company having charge of 'the operation was arrested, and, after a hearing, was fined in the sum of $25. A petition for the allowance of an appeal was then presented to the court and allowed, and this phase of the matter is disposed of in a separate opinion filed herewith. At the same time, or immediately thereafter, the present petition for a writ of alternative mandamus, in which the City of Bethlehem, the building inspector and the zoning administrative officer are all named as defendants, was filed.

The petition for the writ of mandamus sets up that on or about June 12, 1926, the plaintiff made application to Walter W. Strassburg, the building inspector, for a permit under section 5 of the Building Code, that the plans and specifications for the proposed building were submitted to and approved by the said inspector as well as the zoning officer, and that, although the plaintiff had complied with the requirements of the Building Code, the inspector unlawfully refused to issue such permit. The return to the writ specifically denies this, and the testimony taken at the hearing confirms the return. The return admits, however, that the plaintiff sought to comply with the zoning ordinance and made application to Mr. Shoffner, the zoning administrator, for a certificate of occupancy, which was refused. The return further shows that, while an appeal was taken from the decision of the administrator to the board of appeals, no appeal from the board which sustained the administrator has been taken to the Court of Common Pleas, as is provided for in the Act of April 27, 1925, P. L. 344.

It is clear, therefore, that, so far as Mr. Strassburg, the building inspector, is concerned, the writ must be dismissed. He has not refused, lawfully or unlawfully, to issue a permit, for the reason that no application has been made to him for a permit. As to Mr. Shoffner, the administrative officer, it will be observed that the petition for the writ does not complain that he wrongfully or otherwise refused to issue a certificate of occupancy, and the prayer does not ask that he be commanded to issue such certificate. The prayer is for a writ “commanding them (all three respondents), and particularly Walter W. Strassburg, building inspector, to issue a building permit under said ordinance” (Building Code Ordinance). Mr. Shoffner cannot, of course, be commanded to issue a building permit, as he has no jurisdiction or duty in the matter. For the same reason, Mr. Strassburg could not be directed to issue a certificate of occupancy if it were asked for.

If it was intended by this proceeding to compel the City of Bethlehem, through its zoning authorities, to issue to the plaintiff a certificate of occupancy, and thus remove the barrier standing in the way of securing a building permit, in our view of the matter, the plaintiff has not pursued the proper method. A certificate of occupancy for a gasoline filling station in a class B residence district, which this is, is not a matter of right under the provisions of the ordinance, but, when granted at all, is one of exception. The ordinance itself provides that a party failing to secure a certificate from the administrator may appeal to the board of appeals, and section 40 (c) reads: “The board may reverse or affirm wholly or partly, or may modify, any order, requirement, decision or determination appealed from, as in its opinion ought to be made in the premises. Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this ordinance, the board shall have the power, in passing upon appeals, to vary or modify any of the regulations or provisions of this ordinance in harmony with its general purpose and intent and in accordance with the general or specific rules herein contained, so that the spirit of this ordinance shall be observed, the public health, the public safety and the general welfare secured and substantial justice done.” The board is given discretionary powers, and these powers are constitutional. In the very recent Superior Court case of Junge’s Appeal, No. 44, April Term, 1926 [89 Pa. Superior Ct. 543], in which the opinion was written by Judge Keller and handed down March 3, 1927, the court says: “But we are not convinced that the authority thus given the city by statute is unconstitutional. The purpose of the above-mentioned provision in the Constitution was to prohibit the legislature, either directly or indirectly, from taking away municipal powers from the municipal authorities and conferring them on outside bodies, as had been done by the general assembly from time to time prior to the adoption of the Constitution of 1873, notably, when the legislature of 1870 created and appointed the Public Buildings Commission of Philadelphia (Act of Aug. 5, 1870, P. L. (1871) 1548). The legislature did not appoint the board of appeals, nor has it delegated to it the municipal function of establishing zoning regulations and restrictions nor of enforcing them. The council enacted the ordinance, and the superintendent of building inspection, an officer of the city, is charged with the duty of enforcing it. The board of appeals is a body created by the city (appointed by the mayor and confirmed by council — pursuant to an ordinance of the city) as an arm or bureau of. the city government to pass upon cases where it is alleged there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance, and if it find such to exist to modify the requirement, provided it can be done in such a way that the spirit of the ordinance is observed and without injury to the public health, safety and general welfare. The city council is not forbidden to perform certain of its functions by the aid of agents or commissions appointed by it. This is especially the case where new municipal powers or functions are conferred on the city. The board of appeals does not make zoning regulations for the city; it can only, as the authorized agent of the city, modify the regulations in individual cases where the circumstances warrant the application of the relief under the provisions of the ordinance.”

The board having sustained the administrator, the plaintiff’s further remedy is prescribed by act of assembly, viz., an appeal to the Court of Common Pleas. This remedy must be resorted to before mandamus will lie. A writ of mandamus “has never been held to be a proper remedy, except where there is a clear legal right in the relator, and a corresponding duty of defendant, and the want of any other adequate, appropriate and specific remedy:” Com. ex rel. v. Fitter, 136 Pa. 129, 141, citing Com. v. Pittsburgh, 34 Pa. 496, and Lehigh Water Co.’s Appeal, 102 Pa. 515. Here, the right in the relator to a certificate is by no means clear, but if such right exists, the plaintiif has the specific remedy provided by the act.

In view of these considerations, it is not necessary to review and discuss the very able arguments of counsel for both sides respecting the reasonableness and validity of the sections of the zoning ordinance involved in the controversy. It would serve no useful purpose at this time.

Now, April 4, 1927, the writ is dismissed, at the cost of the realtor.

Prom Henry D. Maxwell, Easton, Pa.