author: Henderson, J., Stearne, J.,

text:
    Ford’s Estate.

      John Hemphill, for Leighton M. Ford, appellant, exceptant.

      Benjamin B. Hoar and Frank B. Rhodes (Lutz, Ervin, Reeser & Fronefield with them), for Media Title & Trust Co., trustee under will of Albert E. Ford, dated Oct. 26, 1927, with codicil dated Jan. 26, 1928, appellant, exceptant.

      Green & Quinn, for Thomas J. Williams, co-executor under will of Albert E. Ford, dated Oct. 23, 1926, appellant, exceptant.

      H. Gordon McCoueh (of Dickson, Beitler & McCouch), for trustees of the University of Pennsylvania, one of the legatees under the will of Feb. 15, 1924, admitted to probate (Joseph P. Gaffney and Frederick W. Breitinger, attorneys for executors under said will, with him), appellee, contra.

      Jan. 10, 1930.
   Henderson, J.,

— Three appeals from the Register are before us: (1) From the decree admitting to probate the writing of Feb. 15, 1924, and codicil of Nov. 12, 1924; (2) from the decree of the Register refusing probate of the writing of Oct. 23, 1926; and (3) from the decree of the Register refusing probate of the writing of Oct. 26, 1927, and codicil of Jan. 26, 1928.

The testator died March 22, 1928, having revoked the writings described as above in the paragraph numbered (3) by mutilating them. It was contended, though not proven, that this revocation was done without the necessary mental capacity. We concur in the opinions of the Register and of the Presiding Judge and for the reasons given by them, and, hence, this appeal is dismissed.

The second writing (2) was executed in duplicate, the original having been in the immediate custody of the decedent. It was not found after the decedent’s death, and, hence, we must conclude was destroyed by him. The duplicate, duly executed, was produced by the draftsman, who testified he had given the original to the testator; one of the witnesses thought the carbon copy was the original. The destruction of the original draft of this will by the testator was a revocation thereof and no effect may be given to the copy thereof, even though one witness believes the copy to be the original. This appeal is likewise dismissed.

This brings us to a consideration of the first will which was admitted to probate.

The appellant is the only child of the decedent, and in support of his appeal contends:

1. That the will and codicil of 1924 were revoked on Oct. 23, 1926, and on Oct. 26, 1927, by wills or other writings declaring a revocation, as required by section 20 of the Wills Act of 1917; and

2. That the intention of the decedent to die intestate has been established and must be given effect.

In support of the first proposition, it is contended that the revocation clauses contained in the wills of 1926 and 1927 were not ambulatory, but were instantly effective on the execution of those wills, and, hence, even though they were destroyed by the testator, their virtue remains and the will and codicil of 1924 are revoked. It is contended that this result follows because section 20 (a) of our Wills Act, in addition to revocations by a will or codicil, permits a revocation by an “other writing declaring the same,” and proved in the same manner. By a deed, for instance. We have not been given any reason why such a result should follow and can find none, although such a rule apparently pertains in some states. We will seek for the origin of this clause and endeavor to find a reason, if any there be, why a revoking clause in a later will or codicil should be instantly effective although the instrument has been destroyed by the testator, merely because the statute permits revocation by an “other writing declaring the same.” It should be noted that these are wills and not “other writings,” and, hence, ambulatory, unless some reason for so construing the statute can be shown.

The second proposition contended for is really an appeal to the court to disregard the rules of the common law and resort to the principles of ecclesiastical law. Indeed, the argument of the first proposition is also an appeal to ecclesiastical principles.

The able opinion of the Register contains an excellent review of the Pennsylvania cases and we shall not supplement it. The origin of the clause “other writing declaring the same” in the Wills Act, section 20 (a), is not difficult to trace. The Report of the Commission contains this note: “This is section 13 of the Act of April 8, 1833, . . . which was founded on section 6 of the Act of 1705 . . . that section, however, relating to personal estate only.”

The Commissioners who drafted the Act of 1833, as to section 13 thereof, made the following note: “This follows the note of the Commissioners of 1830, which states that section 13 of the Act of 1833 ‘is nearly a literal transcript from the Act of 1705, excepting that in the latter the provision is confined to wills of personal estate, probably, as we have already suggested, from inadvertence. In this section it is confined to real estate.’ ”

Section 13 of the Act of 1833 is not, however, taken from section 6 of the Act of 1705, but from section 6 of the English Statute of Frauds, 1677, as to which the Commissioners of 1832 said: “The 5th and 6th sections of the Statute (of Frauds), however, which direct the forms of execution and revocation of wills of lands, were omitted by our Legislature:” Parke & Johnson Digest, 876.

We direct attention to this fact because this clause (section 20 (a), Act of 1917) first appeared in our statutes in the Act of 1833, and was not in the Act of 1705. Section 6 of our Act of 1705 is almost a literal transcription of section 22 of the English Statute of Frauds, relating to personal property, and now embodied in section 20 (b) of our Act of 1917. This clause of the Statute of Frauds, 29 Car. II, ch. 3, 1677, was prepared by a skilled draftsman, probably Lord Nottingham. See Hening on “The Original Drafts of the Statute of Frauds and Their Authors,” 61 Univ. of Penna. Law Rev. 283.

From skillful drafting we are justified in assuming that the words are used in a correct technical sense. The “other writing” means exactly what it connotes — a writing not a will or codicil, proven, however, in the same manner. There is no hint in any of these acts that, because of the presence of the clause in question, a clause of revocation contained in a will or codicil is not ambulatory, but is instantly effective; nor can such result be reached by any reasonable intendment. Wills and codicils are ambulatory, and, hence, when the statute provides for revocation by such instruments, an ambulatory method has been adopted, and we. can find no reason for any other construction.

Why was this clause “other writing declaring the same” inserted in the Statute of Frauds? In the early days there was considerable doubt as to the right to revoke a will. See Holdsworth in his “History of the English Law” (vol. 3, pages 423 and 444); Swinburne (1635 ed.), 175. The provision for revocation was put in the statute to safeguard that right, and the “other writing” clause was added to make assurances doubly sure.

The clause has occasionally served its purpose. In 1 Jarman on Wills (5th Am. ed.), *165, we find an illustration of such use: “An instrument purporting to be a conveyance, but incapable of taking effect as such, may, nevertheless, operate to revoke a previous devise, on principle, as it should seem, that the attempted act of conveyance is inconsistent with testamentary disposition, and, therefore, though ineffectual to vest the property in the alienee, it produces a revocation of the devise. . . .” See, also, Swinburne (1635 ed.), 192.

Even a deed, void in equity, but valid at law, did revoke a previous devise: Jarman, *167, citing Simpson v. Walker, 5 Sim. 1; Hick v. Mors, Amb. 215, and Hawes v. Wyatt, 2 Cox, 263. In the note in 4 Purdon’s Digest, 5133, as to this “other writing” clause, it is said: “This other writing need not be intended to take effect as a will or codicil, and, therefore, need not be propounded to the register for probate: Rudy v. Ulrich, 69 Pa. 177. . . . And must be signed by the testator: . . . Lewis v. Lewis, 2 W. & S. 455. As to what is not a sufficient writing to revoke a will, see Jacoby’s Estate, 190 Pa. 382.”

In Gensimore’s Estate, 246 Pa. 216, it appeared that the purchaser of a piece of real estate had, after making a verbal contract, made a payment on account of the purchase money and entered into possession and made certain alterations to the dwelling. The decedent had executed a deed for the property, placed the same in escrow — delivery to be made when the balance of the purchase money was paid — and it was held that the execution of this deed, although no longer effective, operated to evidence a change of intention to leave the property to the devisee named in the will, and it acted as a revocation thereof under the “other writing” clause.

We may conclude from the common law background and the use of this clause that there is nothing therein to lead us to infer that the insertion of this clause in the statute was intended to render clauses of revocation in wills and codicils other than ambulatory.

It may not be amiss for us to inquire into the origin of the Statute of Frauds from which our Wills Act is derived.

In 1 Page on Wills, 597, it is said: “The bench and the bar had called the attention of the public to the danger of permitting oral testaments, without any restriction as to the place of making or the number of witnesses, but warnings based on the possible application of abstract principles of law produced little practical effect. A striking and celebrated case called the attention of the public to the danger of so lax a rule. In that case testator, when advanced in years, had married a young woman whose conduct during her married life was imprudent if not depraved. He died, leaving a written will, by which a considerable part of his property was bequeathed to charitable purposes. The widow, by subornation of perjury, induced nine witnesses to swear that testator had made a nuncupative testament in extremis, by which he revoked his written testament and bequeathed his property to his widow. The conspiracy failed, and the fictitious testament was defeated. At the hearing of this case, Lord Nottingham made the famous remark, that it was his hope ‘to see one day a law that no written will should be revoked but by writing.’ The next year the Statute of Frauds, 29 Car. II, ch. 3, was passed. The question as to who was the author of this famous statute is involved in much dispute; but it seems extremely probable that Lord Nottingham’s support greatly facilitated its passage, and that certain sections of that statute were framed to meet the case of Cole v. Mordaunt,” stated in note to Mathews v. Warner, 4 Ves. Jr. 186, 196.

And at page 635, the same author says: “This recognition of informal revocation by oral declarations had its natural result in bold attempts to defeat wills by fabricating evidence of the declarations of testator. The history of one of the most glaring of these conspiracies is given in a note to Mathews v. Warner. This particular attempt to defeat justice met with disastrous failure; but the wish already quoted that there should some day be ‘a law that no written will shall be revoked but by a writing’ was entertained by the whole English bar, and soon found expression in the Statute of Frauds.”

The confusion which exists in the cases in American jurisdictions has been caused by a failure clearly to recognize the differing principles applied in jurisdictions reasoning from common law principles as distinct from those in which ecclesiastical principles have been adopted. Traces of this confusion will be found in a few Pennsylvania cases, in none of which, however, have the ecclesiastical principles been imbedded in the body of our decisions.

In Gardner on Wills, page 241, it is said: “The question as to the effect of the revocation of a second will upon a prior will with which it was inconsistent has been much mooted, and the difference of opinion is marked and not wholly explicable. At common law, the rule seems to have been that, upon the destruction of the second will, the first ‘revived,’ regardless of the intention of the testator, providing he had kept his first will undestroyed and uncanceled.”

In note 8 is cited Harwood v. Goodright, 1 Cowp. 91, in which Lord Mansfield said that ‘‘if a testator makes one will, and does not destroy it, though he makes another at any time, virtually or expressly revoking the former, if he afterwards destroy the revocation, the first will is still in force and good.”

“But the rule in the ecclesiastical courts was that it was to be regarded as a question of intention, to be collected from all the circumstances of the case, and that the legal presumption was neither adverse to, nor in favor of, the revival of a former uncanceled will upon the cancellation of a later revocatory will. The matter was open to a decision either way, solely according to facts and circumstances. The question was settled in England by statute, under which it has been steadily held that after the execution of a subsequent will containing a revoking clause, or provisions inconsistent with those of a prior will, such former will cannot be revived by the simple cancellation or destruction of the later will.

“In the United States, in the absence of legislation, the influence of the differing points of view of the common law and the ecclesiastical courts is abundantly manifest. When the second will contains no revoking clause, there is strong authority for the view, which seems correct on principle, that its destruction ‘revives’ a prior uncanceled will. These cases go upon the ground that, while the inconsistent provisions of the second will clearly manifest an intent on the part of the testator to revoke the prior will, yet this intent, being purely testamentary in its character, can have no effect until the death of the testator, and if the instrument containing it is destroyed before that time, this revocatory intent is, for legal purposes, as though it had never been, and the first will, being uncanceled, takes effect.

“Where the second will contains a revoking clause, there is a line of cases holding that the destruction of such a will is followed by the same result as attends the destruction of a second inconsistent will, without such clause, and for the same reason. This view, it will be observed, is that of Lord Mansfield, and, assuming the revoking clause to be purely testamentary in its character, is convincing:” Gardiner on Wills, page 241.

In Williams on Executors (page 127), it is said:

“It was long a vexata, queestio whether the principle of law was, that, on the revocation of a later will, a former uncaneeled will should revive or not. In the Common Law Courts, it was certainly laid down as an absolute proposition, excluding all questions of intention, that the former will should revive.

“In the Ecclesiastical Courts, it seems that a different doctrine from that laid down in the Common Law Courts prevailed; for it had been decided in a variety of cases that the presumption was against the revival of the prior will, and that the onus was thrown on the party setting it up to rebut that presumption.”

It may be safely said without further citation of authority that at the common law the rule as laid down by Lord Mansfield prevails unless changed by statute. Such a change has been made in England by the Statute of Victoria, adopted in 1837, and counsel suggests that by “analogy” we should follow it. Our courts have no such authority; that request should be addressed to the Legislature. Pennsylvania is a state where the English common law prevails, and where, at the very outset, Penn had repudiated all ecclesiastical jurisdiction in the settlement and distribution of estates of decedents: Scott’s Intestate System in Pennsylvania, pages 2 and 3.

In considering the early cases of Boudinot v. Bradford, 2 Dallas, 266 (1796), and Lawson v. Morrison, 2 Dallas, 286 (1792), and Flintham v. Bradford, 10 Pa. 82 (will executed in 1821, revoked by another in 1824, which later was destroyed), it must be remembered that the clause “other writing declaring the same,” the effect of which we are considering, was not incorporated in the Act of 1705, but was first introduced into the body of our law in 1833.

Kerchner’s Estate, 41 Pa. Superior Ct. 112 (1909), and Manning’s Estate, 46 Pa. Superior Ct. 607 (1911), are cited by the appellant in support of his contention. They are, however, both rested on Forquer’s Estate, 216 Pa. 331, which the Supreme Court said, in Holmes’s Estate, 240 Pa. 537-544 (1913), was mere dictum so far as republication by parol was concerned.

The only case like that under consideration which we have been able to find in Pennsylvania is McCartan's Estate, 58 Pitts. L. J. 364 (1910), in which the opinion is by one of our ablest jurists, Judge Hawkins, of Allegheny County. The facts given in the report are as follows:

“This is an appeal from the decision of the Register refusing to admit to probate as the last will of Mary McCartan, deceased, a testamentary paper dated January 11th, 1905. Its execution was proven by two witnesses; but the respondents allege that it was revoked by a subsequent will made by the decedent on the 17th of December, 1906. The execution of this will was also duly proven; but Mrs. McCartan on the 7th day of December, 1907, in the presence of three witnesses, directed it to be destroyed for the purpose of revocation. It was then torn into fragments, which have since been reunited, the paper offered in evidence, and it contains a clause revoking all former wills made by the testatrix.

“Hawkins, P. J., April 29, 1910. — The principle is well established in Pennsylvania that the destruction of a will which repealed or superseded á previous one, leaves the first as if the second had not existed. Such is the result whether the second contains a clause of revocation or not; for neither of them takes effect until the testator’s death; the revocation of the second restores the first to the footing on which it stood before the second existed; and the first necessarily as well as naturally takes effect at the death unless the testator had signified by some decisive act a different intent. The question here then turns on what constitutes legal evidence of this intent? The Act of 1833 expressly excluded evidence of parol declaration. Repeal must be in specified forms of writing, cancellation or obliteration and these forms are obviously as applicable to one as to two or more wills found among testator’s papers. The purpose of the law was to prevent fraud and perjuries; destruction was just as much within this purpose as was the making of wills; and when two or more wills are made and retained by testator they are equally within its protection. If one must be destroyed in the prescribed method so obviously must the other. When a second will is destroyed it seems to be thought that revival of the first is a mere implication which testator may orally defeat; but in form it is separate and distinct from the second and its implied promotion ipso facto on destruction of the second is the law’s recognition of its separate entity. It clearly comes within the declaration of the Act of 1833 that ‘no’ testamentary writing shall be repealed except in the methods prescribed, for such is its character, and just as clearly within the mischief of the Act, for it may just as readily be made the subject of the same motive and method of attack.

“The cases cited against this view arose out of facts existing prior to the passage of the Act of 1833. Two of them were decided at a time when the greatest liberality was shown by the courts in the admission of parol evidence (Murry v. Murry, 6 W. 356); and in the third, evidence of cancellation was refused because it was not part of the res gestee; and nothing was said about the bearing of the Act of 1833 on the question.”

The first will, which we are now considering, was carefully prepared by and for the testator. For safekeeping he left it with the trust officer of a trust company in which he was the largest stockholder and which was to become one of his executors. He made other wills and codicils while physically preserving this one intact, and, hence, when he destroyed the two later wills, the conclusion is irresistible that he intended that it should become effective as his last wish.

The animadversions of counsel for the appellant upon the University and its learned Provost are entirely uncalled for and should have been omitted.

While the testimony offered by the appellant was properly excluded, it is but right that we should direct attention to the fact that if such testimony were admissible, no will in Pennsylvania would be safe from attack. Parol revocations were forbidden in England in 1677 and in this State in 1833.

The action of the Presiding Judge is affirmed, all exceptions are dismissed and the record is remitted to the Register.

Stearne, J.,

dissenting. — I am unable to concur in the conclusion reached by the majority of the court. All of the writings offered for probate, as wills, should have been refused. The Register properly declined to probate the mutilated will of 1927, as well as the executed carbon copy of the will of 1926, the original of which, under the proofs submitted, having been presumptively destroyed by the decedent. The probate of the will of 1924 was in error, because I am of opinion that the evidence offered of the res gestee and of all the facts and circumstances surrounding the mutilation and cancellation of the latest will (1927) established the fact that the decedent did not intend to revive the will of 1924 (the one probated), but, upon the contrary, intended to die intestate.

Briefly summarized, the undisputed facts are: The decedent, a widower, with an only son, had been highly successful in business and had amassed a large fortune. Obviously, he was a most vigorous and dominating character, his likes and dislikes being especially intense. His son was associated with him in his business, and until the time of the son’s marriage, relations between the father and son were harmonious. Decedent violently disliked his daughter-in-law, and this attitude persisted until his death. He did everything within his power to separate the son and his wife, and did, in fact, succeed in so doing for a brief period of several months. When the son chose to return to his wife in 1921, and against the wishes of the decedent, this caused an absolute estrangement between the father and son, which continued until February, 1924. Through the intercession of a friend, the son and father became slightly reconciled. Friendly relations thereafter grew progressively more cordial, and at the time of decedent’s death, on March 22, 1928, their relations were most friendly. Decedent was over eighty years of age when he died, and Leighton, his son, was about fifty-three.

After the break in the family relations between the father and his son, the decedent determined that his son should not participate in any manner in his estate. Decedent became a lonely, disappointed and embittered old man. His express desires and wishes had been defied and denied by his only son. He still persisted in his disaffection for the son’s wife. The expression of his feelings and animosity was crystallized in the preparation of his various wills. From the evidence it appears that during the above period a number of wills were prepared and executed, of which the legal record of but the three wills now in question survives.

Decedent’s principal testamentary object became his interest in apple growing. He determined to found a school of pomology. This principal object was not deviated from in the wills of 1924, 1926 and 1927. Changes were made in the details and methods of carrying his purpose into effect, as well as the persons or institutions who should be charged with the execution thereof, but his main testamentary object remained unaltered.

It is worthy of note that in the latest will, that of 1927, the decedent for the first time remembers his son. He provided a $5000’ annuity for him. In neither of the other two wills is the son remembered.

It is also of importance to remember that the decedent told the scrivener, at the time he executed the 1927 will, that he had no other wills. It was this will of 1927 which the decedent kept by him in his home and placed in his locked bureau drawer.

In February, 1928, the decedent had entered upon his last illness. He was confined to his home, attended by physicians and nurses. It is apparent he was contemplating and reviewing his life and the purposes and objects of life generally. He discussed with his physician, Dr. Wilson (page 99), the affection he had for his son, and then, for the first time, disclosed the question which had arisen in his mind as to the wisdom of substantially disinheriting his only son and using his vast residuary estate in establishing a school to teach apple growing. His words are significant: “I have just been thinking. What is it to die and have an apple named after you? . . . Yes, when I only have one son, he is my blood. Why should I die and have an apple named after me?”

This was the ancient call of blood; it was a natural and normal parental instinct breaking through the wall of hatred, spite and reprisal which decedent had been so long in building to shut out and punish his only son. The germination of this thought apparently convinced the decedent of the fallacy and manifest injustice of his contemplated testamentary act, because, at 3 o’clock in the morning of March 17, 1928, he awoke and was talking about “will” and “Leighton;” at 4.30 A. M., he requested his nurse to call his private secretary, who lived at the same apartment with him. The secretary came into the room and decedent directed him to get his will, which he did. This was the will of 1927. Decedent then told the secretary to turn to the last page. Decedent then took the will in his own hands and tore and crum'pled his signature. He then handed it to his secretary and said: “Tear it and tell Leighton he is all I’ve got.” The secretary did as directed. This testimony is corroborated by the nurse.

Because of the foregoing facts and circumstances, I have formed the opinion that the appellant very clearly and legally established that such mutilation and cancellation of the will of 1927 was accomplished by the decedent with the intent to die intestate.

Still desperately ill, bedfast and in great suffering, the decedent lived five days after the cancellation of his will and died on March 22, 1928.

The three wills now in question were respectively offered for probate. The will of 1927 contained an express clause revoking all former wills. As this will was revoked by mutilation, as stipulated in the Act of 1917, I agree with the majority of the court that it should not have been probated.

The will of 1926 (also containing an express clause of revocation) was proved to have been executed in duplicate, the original having been taken by the testator. I agree with the majority of my colleagues that the legally presumed destruction of the original copy by the testator was a revocation of both copies, and, therefore, the executed carbon copy cannot be probated as a will. This writing was, therefore, properly rejected.

The next will offered for probate was the will of 1924. This is the will which, in accordance with his custom, the assistant title officer had carefully preserved along with countless other wills of which his trust company was custodian. He was interested in its preservation because the trust company was the executor named therein for the settlement of this large estate. It does not appear that he ever gave the decedent a written receipt therefor. It is also to be remembered that this is the document that had been twice theretofore revoked in writing, by the decedent, in the two wills above mentioned. Also, that in 1927 when the latest will was prepared and executed decedent told the scrivener that he had no other wills. From the facts and surrounding circumstances unquestionably decedent believed this to be true.

The opinion of the majority of the court rests upon the theory that the will of 1924 was revived as a matter of law upon the cancellation of the will of 1927. Because the will was discovered in its pristine condition, unrevoked by any probatable will or writing, and not mutilated or otherwise burned, canceled, obliterated or destroyed, as provided by section 20 (a) of the Wills Act of 1917, they find as a matter of law that the will of 1924 stands as the decedent’s last will and testament, and must be probated as such.

It is with this conclusion that I disagree.

It seems inharmonious with reason, and against authority, to admit parol testimony to establish the fact of mutilation, cancellation or revocation of the later wills, and at the same time to shut out all evidence of the surrounding facts and circumstances connected with such mutilation, &e. The one act of tearing and obliterating created all the resultant effects. Surely, all the facts and circumstances ought to be freely admissible to ascertain the testamentary intent. That quo animo concerning the cancellation of a will, containing a written revocation of prior wills, may be established by parol is an established principle under our Pennsylvania law. The cases in this Commonwealth are few, but the principle seems to have been consistently maintained and applied. The latest case is Manning’s Estate, 46 Pa. Superior Ct. 607. The Pennsylvania rule is, when a will containing an express revocation of all former wills is revoked (as provided by the statute), leaving an earlier will in existence, the earlier will is revived, unless there is an intent not to revive it. Expressed in other words, there is a presumption of revival, but such presumption may be met by proof that testator intended to die intestate.

In Manning’s Estate, supra, the testatrix left an earlier will with her husband for safekeeping. She subsequently destroyed, by burning, a later will, and stated that she intended to have a new will prepared. It was held that the evidence was sufficient to establish that in so revoking her will she intended to die intestate, and not, ipso facto, to revive, by operation of law, her former will. See, also, Kerchner’s Estate, 41 Pa. Superior Ct. 112; Wulff’s Estate, 26 Dist. R. 144; Stephenson’s Estate, 6 Pa. C. C. Reps. 628, and Flintham v. Bradford, 10 Pa. 82.

While it is true that there is one lower court decision by an eminent Orphans’ Court judge, to wit, McCartan’s Estate, 58 Pitts. L. J. 364, apparently to the contrary, it is interesting to note that the legal effect of the opinion is somewhat impaired by his finding of conspiracy and perjury in the testimony. While he promulgates a contrary rule, in effect, he considered and applied the testimony.

The majority opinion brushes aside Manning’s Estate, supra, and Kerehner’s Estate, supra, because both, it is claimed, relied on Forquer’s Estate, 216 Pa. 331, which the Supreme Court said in Holmes’s Estate, 246 Pa. 537, 544, was dictum as to republieation by parol.

I do not feel that the authority of these cases can be so lightly discarded. The underlying principles rest upon a much firmer and broader foundation than dictum as to parol revocation of wills. I concede that revocation may not be by parol; Seiter’s Estate, 265 Pa. 262. Manifestly such procedure would violate the very purpose of the Statute of Frauds, written into the Wills Act of 1917.

This will of 1924 has been twice revoked in writing by the decedent himself; first, by the will of 1926; and, secondly, by the will of 1927. Both of these writings are still in existence, and part of this- record. To automatically revive, by operation of law, and without opportunity to establish quo animo concerning the destruction or mutilation of the revoking will, certainly gives a much wider effect to the statute than is warranted by its terms, or what the framers have intended.

Before dealing with the results of the most able and exhaustive antiquarian researches of the Register of Wills, and of the majority of the court, concerning the question herein involved, attention is directed to two cases where parol testimony is unquestionably admissible, and which may affect a writing offered for probate, viz., parol evidence relating to animus testandi and animus revocandi.

A paper, perfect in the form as a will and with a genuine signature of a decedent annexed, may, I take it, be shown by parol to have been executed in jest, or for some other reason, and was not in truth and in fact, nor was it ever intended to be, the last will and testament of the decedent. If such testimony were sufficiently firm and abundant, I do not think there is any question but what the lack of animus testandi may be proved: Gardner on Wills (2nd ed.), page 15; Page on Wills (2nd ed.), § 43.

And, conversely, a will torn or mutilated may be shown to have been the result of fraud, accident and mistake, and lack of such animus revocandi may likewise be established. Certainly, such proof violates no principle in the Statute of Frauds, as contained in our Wills Act, and neither does the proof offered in the present case: Brock’s Estate, 247 Pa. 365.

It is true that the question concerning the revival of the prior will by the revocation of a later will has always proved a difficult problem. As pointed out in an extremely well written note to Whitehill v. Halbing, 28 Am. Law Reps. 911, there are five possible theories which may be adopted, viz.:

1. The earlier will is revived as a matter of law.

2. The earlier will is revived unless an intention to the contrary appears.

3. The earlier will is not revived.

4. The earlier will is not revived unless an intention to revive it appears.

5. The question is one of intention without any presumption for or against revival.

Owen J. Roberts, Esq., of this Bar, has written an excellent article upon the subject, published in 48 Am. L. Reg. 565.

All five theories have variously been accepted in different states of the United States and in England. The subject is undoubtedly confused by the differences in historical origin between English common law, effected by the Statute of Frauds, and the decisions of the Ecclesiastical Courts.

The first theory: That the earlier will is revived as a matter of law is the accepted common law view. The basic reason for the rule is that a will is ambulatory until death, and, therefore, a will which is itself revoked can have no effect as a revoking instrument. This was the rule anciently applied in England. It had its inception (as pointed out by Mr. Roberts) in an opinion by Lord Mansfield in Goodright v. Glazier, 4 Burr. 2512 (1770). It is interesting to note that, irrespective of the ultimate result of Lord Mansfield’s decision, the court at that early date felt that the ascertainment of intention was important as bearing on the question of the revival of the former will.

However, after the principle became engrafted upon the common law, England discarded it. By Act of Parliament, 1 Victoria, ch. 26, § 22 (1837), it was provided that the earlier will once revoked could only be revived by a republication. The old common law rule was wisely changed because of its manifest miscarriage in the ascertainment of the real testamentary intent. Mr. Roberts approves of such a rule and says in his article (page 521) : “The statute of 1 Victoria was suggested by long experience in England and has been found quite satisfactory in its operation.”

Our Pennsylvania courts, always alert to preserve and enforce, wherever possible, a testamentary intent, have rejected the common law rule and have accepted the second theory mentioned in the foregoing annotation, to wit, the earlier will is revived unless an, intention to the contrary appears.

It may be that the legal philosophy of the rule is not founded upon exact and scientific legal reasoning, yet the rule is practical and sound. It follows the common law to the point where it raises a presumption that the earlier will is revived, but allows the presumption to be met by evidence to establish the intent of the decedent. Perhaps our rule has reflected in it traces of the ecclesiastical decisions, but, as Mr. Roberts observes, the ecclesiastical rule “has the merit of getting at the justice of the case,” which, in the end, is the primary function of any judicial tribunal.

In the instant case, the decedent, in writings under his hand, twice revoked the present writing probated as his will. True it is that neither of such writings may be probated as wills, but they remain as an indelible record of decedent's intention that the will of 1924 was not intended as his last will and testament. These written evidences of intention may well be “other writings declaring the same” under the Act of 1917. It seems anomalous to me to admit evidence of actual mutilation and at the same time to decline to receive all the evidence and surrounding circumstances which so clearly reveal the reasons and intent of the cancellation. To revive an earlier will by operation of law and to disregard the manifest and provable intent of the decedent is too harsh and hard a rule to be applied in this Commonwealth. The evidence is clear and undisputed that the motive and reason in his mutilation was that the decedent desired to die intestate and to pass his estate to his only son.

To reject this evidence and deny proof of quo animo concerning the cancellation of his will, to my mind, not only violates the existing law of Pennsylvania, but disregards the plainly expressed testamentary intent of the decedent, and will be productive of the gravest injustice to his only son and heir-at-law. I, therefore, record my dissent.

NOTE. — For valuable opinions of the Register in this case, see Appendix.


source: Caselaw Access Project

author: MacDade, J.,

license: Public Domain

text:
    Commonwealth v. Hancock.

      Louis A. Bloom, Assistant District Attorney, for Commonwealth.

      Lutz, Ervin, Reeser & Fronefield, for defendant.
    Jan. 8, 1929.
   MacDade, J.,

-This is a summary conviction, from which an appeal by special allowance was taken to this court and a hearing de novo had thereon.

It appears that the defendant was convicted of “reckless driving” under section 1001-a of the Act of 1927, being commonly called The Motor Vehicle Act, before a justice of the peace in the Borough of Ridley Park. He was duly sentenced, after hearing, to pay a fine of $25 and costs of prosecution. He was committed to jail when he failed or refused to pay the same, but, after languishing in jail and before the granting of this appeal by special allowance, the fine and costs were paid by a friend and he was released from his incarceration.

An inspection of the transcript shows (1) he was charged wtih violating section 1001-a; (2) “defendant admitted he had been drinking;” (3) “defendant was sworn and pleaded guilty;” that he was fined $25 and costs and committed to jail for failure or refusal to pay.

When this appeal was allowed, the following colloquy took place between the court and defendant’s counsel;

“By Mr. Fronefield: This is a request for an appeal to the Court of Quarter Sessions. I just got it.

“The Court: Who will inform the district attorney’s office?

“Mr. Fronefield: I will inform him that it has been filed. He has now paid the fine and costs and we will enter whatever bail the court says.

“The Court: Having paid the fine and costs, you expect to get the fine and costs back?

“Mr. Fronefield: I don’t think personally, myself.

“The Court: Appeal allowed, bail to be entered for appearance.

“Mr. Fronefield: Will you fix the amount of the bail?

“The Court: $300.”

When the case came on for hearing in this court, the court inquired what question of law was involved; and had not the hearing before us developed the fact that we had simply conducted a rehearing of the case as it was tried before the justice of the peace, who gave a full hearing to the defendant. Were we not just hearing the same testimony and asked to render a judgment upon the same testimony adduced before the latter? We now conclude that we are hearing the case for a second time upon practically the same testimony, and asked to substitute our judgment for that of the justice of the peace when there is no question of law involved.

“It is well settled that an appeal by a defendant from a summary conviction before a magistrate or court not of record should not be allowed save for cause shown: Thompson v. Preston, 5 Pa. Superior Ct. 154; that to ascertain the cause alleged, reference must be had to the petition presented to the court below: Com. v. Menjou, 174 Pa. 25; and that the matter of allowing or refusing an appeal rests in the sound discretion of the Court of Quarter Sessions or a judge thereof: Com. v. Levine, 36 Pa. Superior Ct. 188; Com. v. Hendley, 7 Pa. Superior Ct. 356. ‘Ordinarily, an appeal should not be permitted if the party desiring it has had an opportunity to fully and fairly present his case before the magistrate, unless a doubtful legal question is involved, or there is something to indicate oppression, corruption or disregard of law on the part of the magistrate, or after-discovered evidence which would justify a new trial under the well-known rules relating to new trials for that cause. Neither article v, section 14, of the Constitution, nor the Act of 1876, which was passed to carry it into effect, contemplates that an appeal shall be allowed merely because the party desiring it is dissatisfied with the result of the trial:” Thompson v. Preston, supra,. But in Com. v. Levine, supra, President Judge Rice, speaking for this court, pointed out that section 14 of article v of the Constitution enlarges' the right of appeal in cases of summary conviction by providing, within certain restrictions, a mode whereby not merely the fairness and impartiality of the hearing before the magistrate could be inquired into, and his errors of law, as shown by his record, could be corrected, but whereby the judgment of the Court of Quarter Sessions upon t'he facts established by the evidence adduced in that tribunal could be had; and that, while to grant the appeal is discretionary, to accord the parties such hearing, under the circumstances stated, is not discretionary but demandable of right, unless the appeal has been vacated or dismissed upon cause shown. Notwithstanding the fact that the time to consider and determine whether there is such probable cause for the appeal as would justify a retrial of the case in court is before the appeal is allowed, the right of the Quarter Sessions to vacate or strike off the appeal upon cause shown was recognized in that case. While there would seem to be no valid reason why the Court of Quarter Sessions should not reconsider its decision — review its discretion — allowing such an appeal, and no valid reason why a judge of that court who granted such an appeal should not reconsider his own decision and vacate the order allowing the appeal:’ ” Com. v. MacDonald, &4 Pa. Superior Ct. 486.

When the case came on for hearing in the Quarter Sessions, the Commonwealth’s attorney should have made a motion to strike off the appeal, and we shall consider the same as done which should have been done and which has been'subsequently done by a motion in writing filed of record in this cause, and then and there for us to dismiss this appeal on the ground that the reasons which were assigned in the petition for the allowance of the appeal were insufficient and inadequate to justify its allowance.

There is no valid reason why this court should not reconsider its own decision — review its discretion — allowing such an appeal, and no valid reason why a judge of this court who granted this appeal (MacDade, J.) should not reconsider his own decision and vacate the order allowing this appeal, particularly in view of the fact that this defendant should not have had this appeal allowed, where he had the opportunity, as he has had here, to fully and fairly present this case before the justice of the peace, and where no doubtful legal question is involved, or something to indicate oppression, corruption or disregard of law on the part of the justice of the peace, or after-discovered evidence which would justify a new trial under the well-known rules relating to new trials for that cause.

Wherefore, holding the above views, we make the following order: And now, Jan. 8, 1929, the above appeal by special allowance of this court from a summary conviction of the defendant, Bert Hancock, for violation of section 1001-a of the Motor Vehicle Act of 1927, coming on to be heard by testimony and argument of respective counsel, after due consideration, the court in bano doth order and decree that the reasons assigned in the petition for the allowance of the petition were insufficient and inadequate to justify its allowance, our decision in allowing the appeal is reconsidered and the appeal be and is hereby stricken off and vacated and the judgment of the justice of the peace affirmed.

From William R. Toal, Media, Fa.


author: Fox, J.,

text:
    Zerger’s Estate.

      Earl Handler, for petition; Homer L. Kreider, contra.
    May 27, 1929.
   Fox, J.,

— This matter comes before us upon a petition by Bertha Zeger, who is the widow of Abram Leo Zeger, for a declaratory judgment under the provisions of the Act of Assembly approved June 18, 1923, P. L. 840, praying that the court “make a declaratory decree construing the provisions of the last will and testament of the aforesaid Abram Leo Zerger, also known as Abram Leo Zeger, late of the City of Harrisburg, deceased, to vest the absolute title in fee simple to all of the real estate of which the said Abram Leo Zerger died seized in and to your petitioner.”

As appears from the petition and will, the testator left his widow and three children to survive him. The names of the children being as follows: Sanja Zeger, Lillian Zeger and Isaac Gershan Zeger; the first two being of age, the last having been born on Feb. 22, 1910.

The testator defines the word property to mean real estate.

The provisions of the will relating to the real estate are in paragraphs 1, 3, 4 and 5. The language in the respective paragraphs is as follows:

1. “That everything what I possess in real estate, i. e., houses and the income of the houses shall be transferred to my wife Bertha Zeger according to the laws of the State.

3. “Bertha Zeger shall also receive the money from my bank account if there is any balance with the Union Trust Co. of Harrisburg, Pa., and all rent checks should he paid to her in her name, and she should take care of all debts that I am to pay.

4. “My wife, Bertha Zeger, must take care of the property out of the income and the rest shall be for her own livelihood.

5. “My wife, Bertha Zeger, must take good care of our three children, one girl Sanja that is my oldest daughter, my younger daughter Lilian and my son Isaac Gershan and until my son Isaac Gershan will reach the age of twenty-one then should divided between themselves.”

The question before us is, as to the real estate, what estate did the testator give to his widow and children, and can the widow now give a good and marketable title for the same?

The dominant intent or purpose of the testator must be searched for and found, and in so doing each portion of the will relating to the subject must be studied.

In the case of Schuldt v. Reading Trust Co. et al., 270 Pa. 360, the Supreme Court, at page 363, said:

“Each portion of the expression of an entire testamentary idea must be read in connection with its context in order to ascertain the real intent of the testator.

“A justifiable ‘transposition’ of the provisions in a will is always allowed ‘to ascertain the true meaning of a testator.’

“No special form of words is required to create a trust; ‘the manner in which a trust is imposed is not material if the intention can be clearly gathered from the will,’ and the fact that the word ‘trust’ is. not used is in no sense controlling.”

Pursuing this course and transposing all of the paragraphs above referred to, in connection with paragraph 1, it is apparent that the dominant intent was to give to the widow an estate less than a fee simple. The language in paragraph 4 particularly indicates that the widow was to receive the income from the areal estate and properly care for it, the balance of the income was for her own use. This strongly indicates that the testator did not intend to devise the real estate to the widow in fee, and this is still further strengthened by the next paragraph, which provides that she must care for the children, and when the youngest child reaches the age of twenty-one the property should be divided between the widow and the children.

In the case of Pattin v. Scott, 270 Pa. 49, two rules are laid down as follows:

“Where a testator in the first instance uses language suitable to the grant of a fee simple estate, but, by subsequent words, immediately following in the devise, indicates a dominant intent to give only a less estate, the latter purpose will be upheld: Sheet’s Estate, 52 Pa. 257, 263; Urich v. Merkel, 81 Pa. 332, 335; Boulevard from Second Street, 230 Pa. 491, 495; Field’s Estate, 266 Pa. 474, 477; 1 Jarman on Wills, 416.

“On the other hand, where it is. apparent from the words of the will that the dominant purpose of the testator is to devise a fee simple estate, and the subsequent language indicates merely a subordinate intent to strip the estate thus given of one or more of its inherent attributes, the law will hold that this cannot be done; and the fee simple estate passes to the devisee with all of its inherent qualities: Reifsnyder v. Hunter, 19 Pa. 41, 44; Walker v. Vincent, 19 Pa. 369, 371, 372; Doebler’s Appeal, 64 Pa. 14, 17; Sanders v. Mamolen, 213 Pa. 359, 361; Breinig v. Smith, 267 Pa. 207, 211.”

The first of these rules is the more applicable to this case. Even if the language used by the testator in the first paragraph of the will is suitable to the creating of a fee simple estate, the words used in the subsequent paragraphs indicate a dominant intent to give a less estate.

Wherefore, we are of the opinion that the testator placed his real estate in trust, the widow being the trustee to collect and receive the rents, to pay from the income the taxes, the necessary repairs, insurance and so forth, and to consume the balance of the income for herself and the care of the children. The trust to terminate upon the arrival of the son, the youngest child, at the age of twenty-one years, when the widow and the children above named shall equally share in the real estate. The equal division 'being indicated by the use of the words in the 1st paragraph, viz., “according to the laws of the State,” and by the fact that no other division is expressed.

And now, May 27, 1929, upon due consideration, it is hereby ordered, adjudged and decreed that the said Bertha Zeger is not seized in her demesne as of fee in and to the whole of the real estate of the said testator, but holds the same as trustee until the son arrives at the age of twenty-one years, when the real estate shall be held in common by the said Bertha Zeger, Sanja Zeger, Lillian Zeger and Isaac Gershan Zeger, and the said Bertha Zeger is not now able to convey a good and marketable title to the said real estate.


author: Iobst, J.,

text:
    Dime Bank Title and Trust Company v. Kresge.

      Edgar C. Nagle, for plaintiff; Howard M. Spengler, for defendant.
    April 22, 1929.
   Iobst, J.,

— This is an action of replevin. The matter now before us is the disposition of a rule upon Charles R. E. Kresge, defendant, to show cause why he should not turn over to the Sheriff of Lehigh County the property described in plaintiff’s statement, to wit, an automobile truck. The sheriff’s return to the writ reads as follows: “Eloigned as to goods and chattels herein specified and summoned Charles R. E. Kresge, the within named defendant, by handing to him personally, at 9th and Sumner Avenue, Allentown, in the County of Lehigh and State of Pennsylvania, Aug. 7, 1928, at 8.25 o’clock A. M., a true and attested copy of the within writ and making known to him the contents thereof.” “Eloign” is a return to a writ of replevin, when the chattels have been removed out of the way of the sheriff: Bouvier’s Law Dictionary.

The manner of serving the writ is prescribed by the Act of July 9, 1901, § 1, cl. 9, P. L. 617. “The writ of replevin may be served by the sheriff in the county in which it is issued: (a) By taking possession of the goods and chattels described therein, and by serving the defendant, if found, as in the case of a summons; and by adding to the record, and serving as in the case of a summons, any other than the defendant who may be found in possession of such goods and chattels, or any of them; or (b) if the goods and chattels cannot be found, then by serving the writ as in the case of a summons; in which event the cause shall proceed with the same effect as if a summons in trespass had been duly served; and alias and pluries writs may issue in the same suit at any time prior to verdict, and said goods and chattels may be taken by virtue thereof, with the same effect as if taken in the original writ.” While it is true that the defendant, Kresge, admits possession of the truck, he says that it is stored in premises rented by him in East Allen Township, Northampton County, Pennsylvania. We are not aware of any authority in the court to order and direct the defendant to deliver the truck to the Sheriff of Lehigh County. The act referred to directs the sheriff to take possession “of the goods and chattels described,” if found; and, if not found, to serve the writ; and further provides that alias and pluries writs may issue and said goods and chattels taken by virtue thereof. The claimant, however, must satisfy itself as to whether the Sheriff of Lehigh County is empowered, by virtue of an alias writ in this suit, to take the goods located in Northampton County before that step is taken. The rule must be discharged.

Now, April 22, 1929, the rule to show cause, granted Jan. 28, 1929, is discharged.

From Edwin H. Kohler, Allentown, Pa.


author: Moyer, Dep. Att’y-Gen.,

text:
    Inheritance Tax Refunds.
    Oct. 9, 1929.
   Moyer, Dep. Att’y-Gen.,

— V/ith a recent letter to this department you submitted the petition of the Fayette Title and Trust Company, administrator of the estate of Henry T. Cochran, deceased, late of Fayette County, which had been filed with the board, praying for a refund to the petitioner of transfer inheritance taxes to the amount of $11,121.80, which it is claimed were paid to the Commonwealth as a result of an error of both law and fact.

According to the petition, the decedent died Dec. 28, 1926, a resident of Fayette County, and an appraisement for transfer inheritance tax due the Commonwealth was made, showing the real and personal property of the decedent, at the time of Ifis death, to be of a total value of $1,738,443.11. There appear to have been deductible debts to the amount of $131,535.85, making the net value of the estate $1,606,907.26, which, at 2 per cent., made a tax of $32,138.15 due the State. The estate paid inheritance tax to the Commonwealth in the amount of $31,298.45. It is contended by the petitioner that included in the appraisement for transfer inheritance tax is an item of 3431 shares of the capital stock of the Cochran Coal and Coke Company, valued by the appraiser at $325 per share, or a total of $1,115,075, which was grossly in excess of its fair value. No appeal was taken from said appraisement, as provided in the Inheritance Tax Act of June 20, 1919, P. L. 521.

In an opinion of the Orphans’ Court of Fayette County in this estate, filed May 8, 1929, a copy of which was attached to the petition, the court found: “That a fair valuation for the 3431 shares of the stock in question (that is, of the said Cochran Coal and Coke Company) would be $150 per share as of the time of the death of the decedent.” It is, therefore, contended by the petitioner that there was an overvaluation on said stock by the appraiser of $600,425, representing $12,008.50 in tax, which would make the tax due the Commonwealth $20,176.65. Accordingly, it is claimed there has been an overpayment of $11,121.80 in tax as a result of an error of both law and fact on the part of the administrator, the petitioner. . Your board is asked to refund to petitioner said amount of tax. You inquire whether this ease comes within the provisions of section 503 of the Fiscal Code (Act of April 9, 1929, P. L. 343).

The part of said section 503 immediately applicable to the question presented reads as follows:

“Section 503. Refunds of State Taxes, License Fees, et cetera,. The Board of Finance and Revenue shall have the power, and its duty shall be, to hear and determine any petition for the refund of taxes, license fees, penalties, fines, bonus or other moneys alleged to have been paid to the Commonwealth as the result of an error of law or of fact, or of both law and fact, and, upon the allowance of any such petition, to refund such taxes, license fees, penalties, fines, bonus or other moneys out of any appropriation or appropriations made for the purpose, or to credit the account of the person, association, corporation, body politic or public officer entitled to the refund.”

Prior to the enactment of the Fiscal Code, the provision for the refund of transfer inheritance taxes erroneously paid into the State Treasury was contained in section 40 of the Act of June 20, 1919, P. L. 521, which provided in part as foEows:

“Section 40. In aE cases where any amount of such tax is paid erroneously, the State Treasurer, on satisfactory proof rendered to him by the register of wiEs or Auditor General of such erroneous payment, may refund and pay over to the person paying such tax the amount erroneously paid. All such applications for the repayment of such tax erroneously paid in the treasury shall be made within two years from the date of payment. . . .”

It is to be noted that in said Act of 1919 the expression used with respect to the erroneous payment is, “where any amount of such tax is paid erroneously,” whereas in the Fiscal Code the expression used is, “taxes . . . alleged to have been paid to the Commonwealth as the result of an error of law or of fact, or of both law and fact.” By the use of the latter expression, the legislature attempted to enlarge the scope comprehended by the words used in the Act of 1919 so as to include errors of law as well as errors of fact. It has been determined by various opinions of this department that the expression “paid erroneously,” as found in said Act of 1919, did not include errors of law, Although the expression “erroneously paid” in said Act of 1919 comprehended certain errors of fact, it has never been held by this department that it included errors of judgment on the part of the appraiser in arriving at the value of the decedent’s property.

In an opinion by the Attorney-General to the State Treasurer, dated March 11, 1892 (Opinions of Attorney-General, 1891-92, page 76), construing the word “erroneously” in the Act of June 12, 1879, P. L. 206, which act authorizes the State Treasurer to refund collateral inheritance tax which had been paid “erroneously to the register of wills of the proper county for the use of the Commonwealth, ... on satisfactory proof rendered to him by said register of wills of such erroneous payment,” Attorney-General Hensel said as follows: “The legislature having provided, in the Act of 1887, for an appeal from the register’s appraisement of the value of real estate for collateral inheritance tax, it cannot be assumed that it was ever contemplated the State Treasurer should be constituted an appellate jurisdiction on this subject, or that he should be empowered to revise an error of judgment on the part of the appraiser, nor that interested parties should be permitted to take the chances of property being appraised too low and secure a rebate from the Commonwealth if it happens to have been appraised higher than its market price.”

It was expressly held in this opinion that the word “erroneously” as used in the Act of 1878 did not authorize the State Treasurer to revise an error of judgment on the part of the appraiser as to the value of the real estate in question, upon which appraised value tax had been paid, and that no appeal having been taken from the appraisement, it became conclusive. The legislature has not indicated in section 503 of the Fiscal Code any intention to change the law in this respect.

Section 13 of the Act of June 20, 1919, P. L. 521, provides that any person not satisfied with the appraisement of the property of a resident decedent may appeal, within thirty days, to the Orphans’ Court. It is expressly provided that “upon such appeal, the court may determine all questions of valuation, etc.” This provision has not been changed or modified in any respect by the Fiscal Code. Any question as to the overvaluation of the capital stock of the Cochran Coal and Coke Company in the appraisement in this case, which was made on March 28, 1927, about three months after the death of the decedent, should have been raised by the parties in interest in an appeal to the Orphans’ Court. However, even though an appeal had been taken in this case, it is not clear to us how the fact, referred to in the opinion of the Orphans’ Court in discussing thé value of the coal lands in question, that an explosion had occurred in these mines in January following the death of the decedent, necessitating the flooding of the mines, the interruption of operations and the occasioning of much loss thereby, or any other factor occurring since the death of the decedent, which tended to lessen the value of the coal land in question, could affect the value of the coal stock for transfer inheritance tax purposes, said value being as of the date of the death of the decedent.

You are, therefore, advised that the legislature, in section 503 of the Fiscal Code, in providing, inter alia, for a refund of taxes paid to the Commonwealth as the result of an error of law or of fact, or of both law and fact, did not intend to authorize your board to allow a refund of an alleged overpayment of tax due to an error of judgment on the part of the appraiser in arriving at the value of the property of a decedent at the date of his death.

Accordingly, the application for refund in this case should be refused. An appeal should have been taken in this case from the appraisement for transfer inheritance tax, within thirty days, to the Orphans’ Court, as provided in section 13 of the Act of June 20, 1919, P. L. 521.

From C. P. Addams, Harrisburg, Pa.


author: Hargest, P. J.,

text:
    Faunce v. Rowan.

      R. D. Hospers, for plaintiff.

      Samuel Handler and Earl Handler, for defendant.
    July 15, 1929.
   Hargest, P. J.,

— This case comes before us on an appeal from the judgment of an alderman. The transcript shows that the alderman docketed his action in assumpsit, and that the plaintiff’s demand was for “$22.95, money paid by the plaintiff for repairs to plaintiff’s motor vehicle for damages caused by defendant’s motor vehicle colliding with plaintiff’s motor vehicle on the highway.” Judgment was entered for the amount claimed.

The plaintiff, upon the filing of an appeal, not only claimed $22.95 for repairs, but also claimed $100 for depreciation in the value of the car, and $50 for the loss of the use of the car for a period of five days. A stipulation was entered into by counsel upon the argument that the court should consider the affidavit of defense in lieu of a demurrer as a motion to strike from the statement of claim those items which are found to represent consequential damages.

While the alderman designated the suit “action in assumpsit,” the name given by him is immaterial, and, on appeal, the plaintiff may file his statement under the Practice Act of May 14, 1915, P. L. 483: Ankney v. Eby, 27 Dist. R. 571; Herr v. Witmer, 28 Dist. R. 413.

Notwithstanding the alderman’s docket shows a suit for $22.95, the amount may be increased on appeal, provided it does not exceed the limits of the justice’s jurisdiction, except so far as to embrace interest which has accrued since the institution of the suit: Shaw v. Squires, 153 Pa. 150; Goelz v. Eccleston, 83 Pa. Superior Ct. 284; Wanamaker v. Beamsderfer, 26 Dauphin Co. Reps. 121, 125; Parson n. Downer, 9 D. & C. 246.

The jurisdiction of justices of the peace was increased by the Act of July 7, 1879, P. L. 194, to $300. The Act of May 11, 1927, P. L. 886, provides, in section 1212, as follows: “All civil actions for damages, arising from the use and operation of any vehicle, may, at the discretion of the plaintiff, be brought before any alderman, magistrate or justice of the peace in the county wherein the alleged damages were sustained, if the plaintiff has had said damages repaired and shall produce a receipted bill for the same, properly sworn to by the pary making such repairs, or his agent; or said action may be brought in the Court of Common Pleas of said county. ... No action involving more than $100 shall be brought before the alderman, magistrate or justice of the peace.”

The part omitted relates to the service of the process out of the county. It seems to be uniformly held that this section does not repeal the Act of July 7, 1879, by limiting the jurisdiction of the justices to $100, instead of $300, in damages resulting from motor vehicle collisions, but is intended as a procedural section applicable only where the plaintiff and defendant do not reside in the same county: Doolittle v. Barr, 10 D. & C. 820; Wenger v. Dull, 10 D. & C. 163; Sharp v. Boyer, 6 D. & C. 597; Smith v. Algeo, 74 Pitts. L. J. 224.

It is, therefore, apparent that the alderman in this case has jurisdiction to the amount of $300, but the jurisdiction of an alderman, arising from a motor vehicle collision, is limited to the damages which are the direct result of the injury; that is to say, where, under the Act of March 22, 1814, 6 Sm. Laws, 182, the action of trespass vi et armis would lie. The alderman has no jurisdiction for consequential damages arising from an automobile collision: Sprout v. Kirk, 80 Pa. Superior Ct. 514; Grosky v. Wright, 2 Kulp, 415; Gingrich v. Sheaffer, 16 Pa. Superior Ct. 299; Birkhead v. Ward, 35 Pa. Superior Ct. 235; Parson v. Downer, 9 D. & C. 246.

It is contended by the defendant that the depreciation is consequential and not such a direct damage as to be within the alderman’s jurisdiction. There seems to be no case directly in point. We cannot accept this view. The depreciation was instantaneous after the collision; the damage was immediate, even though it might not be at once ascertainable. There is no doubt that the costs of the repairs, under all the authorities, are damages within an alderman’s jurisdiction when resulting from what would formerly have been a trespass vi et armis. They are not immediately ascertainable, and we can see no difference in principle between cost of repairs and depreciation. The damage is just as immediate in one case as in the other, and we think that depreciation must be classed as an immediate and not a consequential damage. In Sprout v. Kirk, 80 Pa. Superior Ct. 514, 516, it is said: “Force directly applied is the criterion.” Cost of repairs, plus depreciation after repairs, are proper measure of damages: Butterworth v. Harrisburg Rys. Co., 30 Dist. R. 492, 24 Dauphin Co. Reps. 9.

We have no difficulty in concluding that the loss of use is consequential, and, therefore, not within the jurisdiction of the alderman. There the damage was not immediate, but was something subsequently suffered by the plaintiff as the consequences of the injury. Consequential damages are the natural results of the injury, but not the direct and necessary consequences: Swain v. Tennessee Copper Co., 78 S. W. Repr. 93, 95; 111 Tenn. 430.

To illustrate: The plaintiff needed the use of his car for the five days it underwent repairs. His need co-operated with the injury to create a loss to him because he could not use the car. But the amount necessary for repairs and the depreciation were immediate. These amounts were the same whether the plaintiff needed the ear or not. In Grosky v. Wright, supra, Rice, P. J., held that the demand “for loss of buggy while awaiting repairs, and trouble,” was clearly for consequential damages, and not recoverable before the justice.

Order of court.

And now, July 15, 1929, for these reasons, under the stipulation filed, we strike from the statement the claim of $50 for five days’ loss of use of automobile, and sustain the statement in other respects.

From Homer L. Kreider, Harrisburg, Fa.


author: Trimble, P. J.,

text:
    Parker’s Estate.

      Harry G. Tinker and Chester D. Fetterhoff, for appellant.

      Frank C. McGirr and John E. Laughlin, for respondent.
    May 15, 1929.
   Trimble, P. J.,

— This appeal from the probate of a writing purporting to be decedent’s will is to the jurisdiction of the Register of Wills of Allegheny County to probate the writing.

William A. Parker executed a last will and testament dated Sept. 21, 1927, and a writing purporting to be a later will Feb. 17, 1928, which, for convenience, will be designated herein as the later will. Both were taken to the Register of Wills in Huntingdon County, Pennsylvania, which was mistakenly supposed to be the family or principal residence of decedent. The custody of the earlier will was and still is retained by the persons "who exhibited it to the Register of Wills. A caveat was filed by the widow. Afterwards she deposited with the Register of Wills of Huntingdon County the later will, in which the persons having the earlier will have no interest whatever as beneficiaries or otherwise, but some of them filed a caveat thereto. Witnesses to the signature of testator to both wills were produced before the Register and his signature was prima fade established; after this no further proceedings were taken in Huntingdon County. No petition was filed in the office of the Register of Wills of Huntingdon County for letters testamentary by any interested person under either will, or by any other person for them, showing residence and citizenship, which is required by the Act of March 24, 1921, P. L. 51.

The widow was the sole legatee and devisee under the later will and withdrew this from the Register of Wills after the caveat was filed against its probate. It was delivered to her by the Register on request, and having taken the advice of counsel, she made application for letters testamentary by petition showing the family or principal residence of the decedent to have been in Allegheny County, Pennsylvania, and thereupon the Register of Wills of said county probated this as the last will and testament of the decedent. An appeal was taken from this probate. At first a demurrer was filed, and this being overruled, after answer and replication, a trial was had.

It now appears from the testimony that about April 1,1928, decedent was ill and did not re-lease the dwelling which he occupied as a residence in Wilkins-burg, Pennsylvania, and removed a part of his household effects to the home of his sister-in-law in that borough and the greater part to his summer home in Huntingdon County. This had been in his possession and used by him in season for recreation and had never been his family or principal residence. On July 3, 1928, he left Wilkinsburg to spend a holiday at this retreat, and with his health broken beyond recovery, he succumbed while there and died Aug. 8th. It is undisputed that his securities were in Pittsburgh; that he was employed in this city at the time of his death, and that after April 1, 1928, when alone in Allegheny County or with his wife or his foster child he resided either in the home of his sister-in-law or in a hotel in Wilkinsburg, where he had living quarters before June 20, 1928, when he removed to his sister-in-law’s home.

There is nothing in this case to indicate that Huntingdon County was the family or principal residence of the decedent. The furnishing of his house there with some of the household goods used in Wilkinsburg of itself is not persuasive of a change of residence when at the same time his intention 'to reside at his place of business is shown by his act of taking another residence here when he gave up one too large for his needs. He was purchasing agent of the Bessemer & Lake Erie Railway Company, and as such, his presence was required in the City of Pittsburgh almost the whole of the time. He could not have retained that position and lived in Huntingdon County. He never communicated to any of the employees of that company any intention to leave, but all of his acts indicated that he intended to retain his residence in Allegheny County.

But what of the caveats filed in Huntingdon County? It is argued that these acts clothe the Register of .Wills with jurisdiction to determine the residence of the decedent. They would, surely, if petitions had been filed for letters; then the act of assembly would have been complied with; but the Register could not begin the judicial act of probating the will until these petitions were filed. Such proceedings would be as fatally irregular as taking testimony in the Orphans’ Court in an appeal from a probate without the petition required in section 17, Orphans’ Court Act of June 7, 1917, P. L. 363. Upon filing the petitions with the Register of Wills showing the residence and citizenship, the petition and the will would be entered in the records of his office. In this manner only could the jurisdiction be invoked. It cannot be maintained that the Register of Wills, having received the will, could have any right to hold it without a procedure under the act of assembly for probate when he was satisfied that it should be redelivered to the parties from whom he received it, either because it was not the last will and testament of the decedent or that he had no jurisdiction to probate it. The caveat against its probate would be sufficient warranty for him to redeliver the will when he was satisfied that he did not have the right of custody, and such a delivery by him is presumed to be regular. That was done in this case.

The Register of Wills of Huntingdon County had no right to the custody of the will which was probated in Allegheny County because its probate here and the trial on the appeal from the probate show conclusively that this county was the family or principal residence of the decedent.

The appellant at first denied the execution of the second will and withdrew his objection to the probate without prejudice to renew it after the question of jurisdiction would be determined. The appeal from the probate of the will will be dismissed in an order, saving to the appellants here a right to enter a new appeal which will be restricted to questions concerning the validity of the will.

Prom William J. Aiken, Pittsburgh, Pa.


author: Fleming, P. J.,

text:
    Turner’s Case.

      N. B. Spangler, for petitioner; S. D. Gettig, for respondent.
    July 29, 1929.
   Fleming, P. J.,

— This proceeding is but one of the dying echoes of a period of matrimonial strife which has occupied the attention of our courts for quite a period. Five judges have been assailed, from both sides of this controversy, with letters, attempted interviews, telephone calls and all else, in which have been included not only the matrimonial but the financial and physical difficulties of the parties. It is well that the relations of this warring wife and belligerent husband be now finally settled.

William H. Turner, the husband, has applied for and been refused a divorce from his wife, Jessie R. Turner. He has complied with all orders relating to alimony pendente lite and counsel fees in the same. An order has been made directing him to pay, through the medium of our desertion probation officer, the sum of $25 per month for the support of his wife. He is complying with his order. He has, and has had since 1924, the custody of Mary Louise Turner, aged ten years, and William H. Turner, Jr., aged eight years. Since 3925 he has had the custody of Betty Jane Turner, aged six years. These are the children of William H. Turner and Jessie R. Turner, his wife. The present action is for the custody of Betty Jane Turner. There is nothing before the court as to the other two children, although we propose to dispose of their custody herein in order to finally settle the matter.

The Act of June 26, 1895, P. L. 316, as amended by the Act of May 13, 1925, P. L. 638, provides that in disputes between father and mother, relative to custody of their children, the court shall decree which, if either, parent shall have such custody, regard first being had to the fitness of such parent and the best interests and permanent welfare of the child: Com. v. Daubert, 24 Schuyl. Legal Rec. 409.

Reference has been made to an alleged verbal order of the late Judge Quigley, whereby the custody of this child was given to the mother. The testimony of the mother is that the father, by some subterfuge, took the child away from her and has since refused to give it up. We can well understand why Judge Quigley awarded the child to the mother in 1924. The child was then but one year old. We are now concerned with a six-year-old child who has been left unmolested in the custody of the father for over four years. Nor can we consider any alleged statements made by the late Judge Keller in alleged personal interviews with one of the parties and in the absence- of the other. The bald question before us is the best interest and the permanent welfare of the child as it is reflected from the record adduced at this hearing and from our personal investigation of the status of the parties. We disregard the sentimental appeals which we, too, have experienced by way of personal letters, attempted interviews and the like. We shall proceed to decide this matter in the hope of definitely settling this strife, in order that both parties may go their way and rebuild their shattered nerves and recoup their impaired finances.

The father of the child is a farmer residing in Worth Township. Residing nearby are his father and mother, long-time residents of the township, and known as of the substantial residents of the county. The father of the child is sober and industrious. He is making an honest effort to pay for and improve his farm. The buildings afford ample shelter. The products of his farm and that of his father furnish ample food. The township provides for the transportation of the school children to school at Port Matilda. There is a competent physician in Port Matilda who can reach the Turner residence in a short time upon call. The air is pure, the water is good and the environment of the Turner home is conducive to the upbringing of good boys and girls.

The mother of the child, from what we have learned in the divorce case, is not in excellent health. Unfortunately, her paternal home has recently been broken through the death of her father. While a spirit of loyalty, greatly to be admired, exists among her brothers and sisters, the fact remains that no permanent home exists for her. She is at present nursing and receiving $100 a month and expenses. The death or recovery of the patient will, however, certainly terminate such employment, and what then for the future? Nothing has been adduced before us to answer this. While her present employer may anticipate with pleasure the thought of the child coming there with her mother, the mere fact that the child is with her mother might hinder or prevent the mother in obtaining, employment elsewhere.

Prom the standpoint of the child herself, she has been with her brother and sister since babyhood; she is used to the farm life — city life might harm her in more than one way. She now appears healthy and well nurtured.

We have no fault to find with the mother’s ability to rear children provided environments and conditions are normal, which they are not with her. She is endeavoring to recoup her health and nerves and at the same time provide an income for herself in addition to the sum received by order of court. We are of the opinion that to add the care, physical and financial, of a child upon her would be injurious not only to the welfare and best interest of the child but to the mother herself.

We are satisfied that the father is competent to have the custody of the child and that the child’s best interests and permanent welfare will be best served by leaving her where she is.

We recognize the duty imposed upon us to afford an opportunity for the continuance of maternal affection. We shall form our order so that the mother, if she so desires, may see her children at reasonable times.

And now, July 29, 1929, the prayer of the petition is refused and the custody of Mary Louise Turner, William Henry Turner, Jr., and Betty Jane Turner is awarded to the father, William H. Turner, upon the condition that he shall file in this proceeding his bond in the sum of $500 conditioned that he, the said William H. Turner, will deliver any or all of such children at such reasonable times and places within this county as shall be designated by the Juvenile Court officer for the purpose of permitting his wife, the said Jessie R. Turner, to see them and to foster the maternal love and affection which should exist in such cases.


author: Williams, P. J.,

text:
    Commonwealth v. Geibel.

      J. Stroud Weber, for Commonwealth; Maxwell Strawbridge, for defendant.
    May 13, 1929.
   Williams, P. J.,

— The motion may be viewed from the angle of two(2) alleged illegal acts on the part of police officers: first, search and seizure; and second, arrest.

However, the illegality of the search and seizure is not pressed by the defendant’s counsel, who abandoned in their brief the contention. The sole remaining question raised is, then, May a police officer file an information with a justice of the peace and arrest the defendant on Sunday for the possession and furnishing of intoxicating liquors for beverage purposes?

Looking only at the Act of 1705, Section four (4), 1 Sm. Laws 25, the arrest would seem to be illegal unless possessing and furnishing intoxicating liquor for beverage purposes be breaches of the peace. But the Sunday violation authorities are not pertinent because in every case it was not so much the doing of the act as the doing of it on Sunday that was unlawful. Here, the act itself is against the law — the day being immaterial. To possess or furnish intoxicating liquor for beverage purposes is contrary to law at any time.

In the instant case, the Prohibition Enforcement Act of March 27, 1923, P. L. 34-45, is in point. This statute places the possessing and furnishing of intoxicating liquor on an entirely new basis and, hence, in determining whether the offenses constitute breaches of the peace, an examination of the legislative regulation may be helpful. Throughout such examination, however, it should be kept clearly in mind that whatever tends to disturb the public safety, quiet and decorum is a breach of the peace.

The Act of March 27, 1923, supra, Section One (1), P. L. 34, says the act is for the protection of public welfare, health, peace, safety and morals and all provisions shall be liberally construed for the accomplishment of these purposes.

Section Three (3), P. L. 35, makes it unlawful to furnish or possess intoxicating liquor for beverage purposes.

Section Six (6), P. L. 36, renders any house where intoxicating liquor is furnished or possessed a common nuisance.

Section Seven (7), P. L. 36-7, provides for the abatement of such a nuisance and the padlocking of such a house.

Section Eight (8), P. L. 37-8, authorizes search warrants and seizures. Of great importance in the case at hand is the following language of the Eighth (8th) Section, supra:

“Said officer or officers ffiay arrest without warrant, and bring before the alderman, justice of the peace, or magistrate, who issued said search warrant, the person or persons found in possession or custody of the said thing or things so seized:”

According to Section Eight (8), therefore, a body warrant is not necessary. Quite properly, the Prohibition Enforcement Act is silent about Sunday. If an officer may make a legal arrest on Sunday without a warrant, how can it be urged cogently that his possession of a warrant issued on Sunday renders arrest illegal? Although the power in the body warrant be illegal, the conduct of .the officer is sustained by the blanket power of the Act of March 27, 1923, supra. Illegality of one source of power does not pollute another source. The useless does not vitiate the useful.

Section Nine (9), P. L. 38-9, covers search, seizure and arrest with or without warrant in case of transportation.

And Section Eleven (11), P. L. 39-43 (A), P. L. 39, declares no property rights shall exist in illegal intoxicating liquor.

Prom the foregoing it appears that the provisions, purposes and tenor of the Prohibition Enforcement Act, supra, stamp bootlegging a breach of the peace. If immunity were guaranteed One (1) day in Seven (7) to quiet and peaceful bootleggers, i. e., bootleggers careful not to create a public disturbance or commit treason or a felony, the enforcement of prohibition would be greatly hampered. The Act of March 27, 1923, supra, is a drastic piece of legislation intended clearly to operate in full force Seven (7) days a week.

Granting for argument but not in reason that the arrest of the defendant was illegal because of the Act of 1705, supra, the motion to quash the indictment comes too late to attack the illegality of arrest.

Between May 20, the day of arrest, and June 8, the date of trial, the defendant had ample time to challenge the legality of his arrest. Instead of seeking to be discharged from custody, or to be released from his recognizance to appear for trial, he waited without action until after the indictment had been found and he had been called for trial. But it was too late then for the defendant to move to quash the bill for unlawfulness of apprehension: Com. v. Brennan, 193 Pa. 567 (1899), 569; Com. v. Mallini, 214 Pa. 50 (1906), Mitchell, C. J., 51-2; Com. v. Dingman, 26 Pa. Superior Ct. 615 (1904), Porter, J., 619; Com. v. Hans, 68 Pa. Superior Ct. 275 (1917), Head, J., 277-8; Com. v. Keegan (No. 1), 70 Pa. Superior Ct. 436 (1918), Trexler, J., 438-9; Com. v. Mazarella, 86 Pa. Superior Ct. 382 (1926), Henderson, J., 384; Com. v. Fedulla, 89 Pa. Superior Ct. 244 (1926), Porter, P. J., 245-6; and Com. v. Sullivan, 91 Pa. Superior Ct. 544 (1927), Porter, P. J., 547.

If illegality of arrest cannot be brought to the front on motion to quash indictment, surely such illegality cannot be raised by the pending application.

The contention of the defendant that a motion in arrest of judgment waives all defects, including those of information, warrant and indictment, is not well founded. In Com. v. Bateman, 92 Pa. Superior Ct. 53 (1927), President Judge Porter said, page 56:

“Judgments can only be arrested, in criminal cases, for causes appearing upon the face of the record; . . . The record to be considered consists of the indictment, the plea and issue and verdict. The evidence in the case forms no part of the record . . . ; and hence defects which appear only by aid of evidence cannot be the subject of such a motion.” In the case at hand, the information and warrant constitute no part of the record and, therefore, are not to be considered. The illegality charged by the defendant does not appear of record as “record” is defined in Com. v. Bateman, supra. The motion must be overruled.

And now, this thirteenth day of May, 1929, the motion of the defendant in arrest of judgment and for a new trial is overruled, all the supporting reasons of the motions are dismissed and the defendant is directed to appear for entry of judgment of sentence in Court Room Number One (1) of the Court House at Nine o’clock in the morning (9 A. M.) of next Friday, the seventeenth of this month.

From Aaron S. Swartz, Jr., Norristown, Pa.


author: Niles, P. J.,

text:
    Union National Bank v. Manchester Borough.

      James G. Glessner, for plaintiff; McClean Stock, for defendant.
    June 24, 1929.
   Niles, P. J.,

— June 6, 1927, the Union National Bank of Mt. Wolf, Pa., received a nóte for $5000, payable in six months, signed “Manchester Borough, George M. Bare, Pres. (L. S.), W. H. Baker, Treas. (L. S.). Witnesses: J. H. Decker, Sec’y. With the borough seal,” and paid therefor

to the borough treasurer $5000. On the same day, at a regular session of the borough council, $125 interest was paid, and the report of William Baker, treasurer, was received and spread on the minutes, including the item “June 6, loan Union National Bank, $5,000.00.” Dec. 5, 1927, the borough council, in regular session, authorized the payment of $500 on the note, and among the bills ordered paid was “Union National Bank, interest and part payment on note, $612.50.” Dec. 6, 1927, a renewal note for $4500 was received by the Union National Bank, signed in the same manner as the original. The legal requirements of a valid indebtedness against the borough were not complied with regarding the $5000 furnished by the .bank to the borough treasurer. No motion, resolution or ordinance was passed or approved by the burgess authorizing this loan, or any loan, or any increase of indebtedness; no vote was recorded; no annual tax to provide for the payment was assessed; no statement of indebtedness, etc., was made or filed; nor was there any motion, resolution or ordinance authorizing the officers of the borough to make, execute or deliver the notes of June 6 or Dec. 6, 1927; nor was there any municipal action authorizing a temporary loan. The $5000 was paid by the borough treasurer on account of the purchase of fire apparatus and hose bought by the borough. The legal requirements were not complied with in the purchase of this fire apparatus and hose, and the expenditure therefor by the borough was illegal, and the councilmen of the borough were surcharged and have paid into the borough treasury a total of $6323.21, which covered the $5000 furnished by the bank and paid by the borough for the apparatus. The practical result is that the borough has the fire apparatus, the cost of which has been repaid to the borough by the individual councilmen, and the borough also has in its treasury $4500, the balance of the $5000 furnished by the bank.

The puzzle of the case is: May the borough keep both the fire apparatus, which has finally been paid for by the individual councilmen, and not return to the bank the unpaid $4500 of the $5000 advanced by the bank, with the intention of all parties concerned that it should be used, and which was used, for the purchase of the fire apparatus?

Do the applicable legal rules require that the borough, retaining the fire apparatus, the whole cost of which the individual councilmen have been compelled to pay by reason of their delinquencies, shall also keep the $4500 unpaid balance of the loan made by the bank for that purpose?

On behalf of the borough it is contended: (1) That because of disregard of the legal prerequisites, the furnishing of the $5000 by the bank created no municipal obligation. (2) That the irregular use of the money obtained from the bank in the purchase of apparatus was not such a legal appropriation for legal borough purposes as would sustain the equitable action of assumpsit for the money had and received.

It is conceded by defendant’s argument that if the borough had the bank’s money unexpended in its treasury, or if the vendors of the fire apparatus had returned it, the bank could recover. But it is insisted that because the bank’s money was paid to the fire apparatus vendors and is kept by them, and an equal amount of other money has been paid back by the councilmen, the fund cannot be followed and the money repaid by the repentant councilmen cannot be considered, for the purpose of this case, the same as if the illegality had been discovered before the payment to the vendors of the fire apparatus and the replacement of the same amount by the councilmen.

It does not seem that a decision based upon the character of the different steps of the transaction taken because of the ignorance or disregard by all of the parties of certain necessary, but also technical, requirements would be just. Disregard of the legal mandates regarding the purchase of apparatus has been atoned by the replacement by the councilmen into the borough treasury of the amount illegally disbursed by them, and the money can very well be considered as in the same condition and subject to the same equities as though it were the same money received from the bank.

So far as any of the authorities to which we have been referred indicate, none contain the peculiar element in this case of the replacement in the municipal treasury of the full amount illegally disbursed by the persons responsible. The public policy of the Commonwealth requires this penalty of negligent officers. There is, however, no public policy requiring that the taxpayers of the borough, in addition to obtaining ownership and protection of the fire apparatus without cost to them, also should keep the money procured from the bank with the intention of all concerned that it should be used for a borough purpose, but which could not be and was not so used because of subsequently ascertained legal objections.

This is an action of assumpsit which can be made the vehicle of equitable jurisdiction to correct a hardship for which the law, by reason of its universality, might be deficient. The dictum in the opinion of Mr. Justice Brown, in Long v. Lemoyne Borough, 222 Pa. 311, points to the basis of a just decision here: “Municipal repudiation of honest indebtedness which the municipality intended to contract, and could have lawfully contracted, is no more to be tolerated than individual repudiation of honest indebtedness merely because it was not incurred in pursuance of a duly executed express contract, unless the municipal charter or the statutes prohibit the municipality from incurring any liability by implication.” Though the bank cannot recover on the note given to it, there is an implied obligation resting upon the municipality to pay back what was lent to it in good faith. If the council had complied with the legal mandates, it could have authorized the borrowing of the money and the execution of the obligation to the bank. The fact of the replacement in the borough treasury by the delinquent councilmen of the amount to cover the very money which they had illegally undertaken to disburse makes this case unusual. Having received the money and now holding in its treasury the same amount returned after adjudication that its attempted use was illegal, the rectification of the error with which the whole transaction was affected should be completed. The borough has no equitable right to the $4500. The bank has, and is entitled to recover in this action.

And now, to wit, June 24, 1929, the court being of the opinion that the Borough of Manchester is liable under the law to pay the Union National Bank of Mt. Wolf, Pa., the sum of $4500 for the money had and received as set forth in the case stated, judgment is entered in favor- of the plaintiff, the Union National Bank of Mt. Wolf, Pa., and against the defendant, the Borough of Manchester, for the sum of $4500, with interest from June 6, 1928, and costs of suits. From Richard E. Cochran, York, Pa.