author: Hicks, J.,

text:
    Tobin v. Blythe Township School Directors.

      B. A. Freiler, for relator; G. E. Bergen, for respondents.
    July 23, 1928.
   Hicks, J.,

John Tobin, a taxpayer and a school director (whose term of office began on the first Monday of December, 1927) of the Township of Blythe, Schuylkill County, Pennsylvania, presented his petition for a writ of alternative mandamus, directed to Patrick Doyne, Secretary of the Board of School Directors of Blythe Township, praying for a writ of alternative mandamus, directed to the said Patrick Doyne, to show cause why he should not permit the said John Tobin, or any other citizen and taxpayer, to inspect and examine the records, papers, etc., of the said school district, and also the minutes of the board of school directors for meetings held during the years 1924, 1925, 1926 and 1927. In the said petition it is averred, by reason of the duties imposed upon the petitioner by the School Code of May 18, 1911, P. L. 309, and its amendments, as a school director, it is necessary for him to have access to the records and papers of the school district and the minutes of former meetings of said board of school directors in order that he can properly perform his duties, and that the records, papers and minutes are in the possession of the defendant as secretary, in pursuance of sections 314 and 318 of the School Code, Act of May 18, 1911, P. L. 309, and its amendments, and all of them being public records, any citizen and taxpayer has a right to inspect them. A writ of alternative mandamus issued, commanding the defendant, Secretary of the Blythe Township Board of School Directors, to appear and show cause why he should not permit John Tobin, or any other citizen and taxpayer, to inspect and examine the records, papers, etc., also the minutes of the board of school directors of meetings held during the years 1924, 1925, 1926 and 1927.

A motion to quash was made by the defendant for the following reasons, to wit: (1) The petition does not aver that the relator has any specific and independent legal right or interest in himself, different from that of the public at large; (2) the relator does not allege a want of other adequate or specific remedy at law; (3) there is no allegation of fact in the petition showing that there is a duty resting on the secretary of the school board to permit John Tobin, or any one else, to examine the minutes of the board of school directors or any other papers or records in his custody for the years 1924, 1925, 1926 and 1927; (4) the petition does not allege that since the first Monday of December, 1927, the relator was denied access to the minutes of the board of school directors or any other papers or records showing the proceedings of the board since he has held the office of school director; (5) the relator complains in a dual capacity (a) as a school director and (b) as a citizen and taxpayer and on different grounds in each capacity; (6) the petition does not show that the relator has made any effort in the exercise or discharge of his official duty to secure access to the minutes, books, papers or records of the school district; (7) the petition shows on its face that the relator, as a citizen and taxpayer, has no right of access to the minutes, records and other papers of the school district for the years 1924, 1925, 1926 and 1927; (8) the alternative writ of mandamus as allowed is not supported by the averments of the petition.

At the time of the argument, by the agreement of counsel for both sides to this controversy, the petition for alternative mandamus was amended by adding, “That he is without adequate and specific remedy at law.” This disposed of the second reason for the motion to quash, which reason is overruled.

The first and seventh reasons for quashing the writ are as follows: (1) The petition does not aver that the relator has any specific and independent legal right or interest in himself, different from that of the public at large; (7) the petition shows on its face that the relator, as a citizen and taxpayer, has no right of access to the minutes, records and other papers of the school district for the years 1924, 1925, 1926 and 1927. These reasons will be discussed together. It is at once apparent from the petition that the only records specifically mentioned and described, to which access and inspection of is desired, are the minutes of the school board of 1924, 1925, 1926 and 1927, and the remainder of the prayer is for an inspection and examination of the papers, records, etc., of the school district, without individuating them, and we ar.e unable to determine just what particular papers or records are desired other than the minutes for the specific years. The secretary of the board of school directors, in the light of the duties which he is statutorily required to perform, is a public officer: Howell v. Keeler, 5 D. & C. 90. At common law, the right to inspect public documents or to make copies, abstracts or memoranda therefrom, is limited to those persons who have an interest therein, such as would enable them to maintain or defend an action for which the documents or records sought can furnish evidence or necessary information. The right of the public generally to inspect public records, if it exists, must be based upon some statutory authority: 23 Ruling Case Law, 160; 34 Ency. of Law and Procedure, 592; Owens v. Woolridge, 22 Pa. C. C. Reps. 237; Com. ex rel. Milliken v. Board of Revision of Taxes, 23 Dist. R. 424. See opinion, Attorney-General, Examination of Public Records, 6 D. & C. 383.

In order to obtain a writ of mandamus, the applicant must have a right to enforce which is specific, complete and legal, and for which there is no other specific legal remedy, and the right or privilege claimed must be independent of that which he holds in common with the public at large: Heffner et al. v. Com. ex rel. Kline, 28 Pa. 108; Com. ex rel. v. Mitchell, 82 Pa. 343; Stegmaier v. Jones, 203 Pa. 47. At common law, every person is entitled to the inspection by himself, or his agent, of public records, provided he has an interest therein (20 Am. & Eng. Ency. of Law, 521), and it is not necessary that a cause be pending: 20 Am. & Eng. Ency. of Law, 521, and note 1 on page 523. It is not essential that the interest be private, capable of sustaining a suit or defense on his own personal behalf, but it will be sufficient that he act in such suit as the representative of the common or public right: 20 Am. & Eng. Ency. of Law, 523, and note 2; Com. v. Weaver, 14 Dist. R. 302, 306.

The petition fails to show the specific interest which the plaintiff has, either individually or as an agent, in any particular minute of the proceedings of the board of directors or anything in its records. If it did, and it appeared that his interest required an inspection and a copy of the same, we would have no hesitation in granting the writ. If a person seeks inspection of public records, he must have [such] an interest in a specific controversy as will enable him to maintain and defend an action for which the document or record sought can furnish evidence or necessary information: 20 Am. & Eng. Ency. of Law, 522. In this case, he claims in a dual capacity, first, as a taxpayer, and, secondly, as a school director who holds office since the first Monday in December, 1927. No interest whatever in the minutes for the several years and in the records and papers of the school district is shown in him as a taxpayer. No reason is given why he, as a taxpayer, desires to have inspection of the minutes, records and papers, and, in this connection, it is well to remember that the alternative mandamus, as issued, asks for the inspection for not only him as a taxpayer, but any other citizen and taxpayer in the township as well. A taxpayer, as such, without showing any reason for, or special interest in, the records and papers of any municipal body, cannot come into court and, upon the bare request as a taxpayer, gain access to the records and papers of such municipal body, for to issue a mandamus in such a case would operate to the detriment rather than to the benefit of the general public and cause great disorder and confusion in the fiscal affairs and duties of the officers. Curiosity or suspicion is not the basis upon which to urge the issuance of a mandamus. As a school director since the first Monday in December, 1927, he claims the right to inspect the minutes of previous years, as well as the records and papers, in order, as he alleges, that he may properly perform his duties according to law. The fiscal affairs of the school district have been audited year after year, which audits, in pursuance of statutory requirement, have been published. He does not claim that he has not had: access to the minutes since the time that he has become a school director, and does not allege that the board, of which he is a member, refused to direct the secretary to permit him to have inspection. The petition does not show wherein his interest as a school director in the minutes previous to his induction into office, as well as the records and papers of the school district, is any different than that of any other taxpayer in the entire township, and certainly, upon the showing in the petition, his interest as a school director rises no higher than that of any other taxpayer. The petition is devoid of any reason why any taxpayer should see the particular records in question, and certainly the reason as given by him for access and inspection, so that he can perform his duties as a school director, is not easy of understanding, because his reference is indefinite as t'o the records and papers, and the minutes which he desires are for a period of four years prior to his assumption of the duties of his office. It may be that he has a reason for his desire to see these minutes, but certainly his reason cannot be in order that he might the better fulfill the duties of his office.

There is another angle to this proposition and that is, that if the duty sought to. be enforced by a mandamus is a public duty, then the writ must be applied for by a public officer; but if a private individual makes himself the relator, he must show some particular right or privilege independent of that which he holds with the public at large. Therefore, if this writ could be maintained for any purpose, there being no averment of any particular right or special interest in the plaintiff himself, the proceedings should have been instituted in the name of the Commonwealth: Com. ex rel. v. Woodward, 84 Pa. Superior Ct. 124, 129. The first and seventh reasons to quash the writ are sustained.

The third reason to quash is: (3) There is no allegation of fact in the petition showing that there is a duty resting on the secretary of the school board to permit John Tobin or any one else to examine the minutes of the board of school directors or any other papers or records in his custody for the years 1924, 1925, 1926 and 1927.

Under the School Code, Act of May 18, 1911, P. L. 309, and its supplements, the secretary is directed to keep a correct and proper record of all the proceedings of the board (section 314), to keep the accounts (section 320), to act as the custodian of the records of the sehool district (section 319), to make reports concerning the school affairs to specially designated authorities (section 317), and, inter alia, to perform such other duties as the board of school directors may direct (section 322). There is no doubt that the secretary is a public officer and that many papers and records in his possession are public records. “A public record is a memorandum made by a public officer authorized to perform that function, or a writing filed in a public office intended to serve as evidence of something written, said or done:” 20 Am. & Eng. Ency. of Law, 505. ■ But every paper deposited in a public office does not thereby become a public record, even though necessarily so deposited. It must be of a public nature or recorded under statutory provisions: Ibid, 506.

To enforce the performance of a duty by a public officer, that duty must clearly appear: Dougherty v. Black, 262 Pa. 230. Mandamus does not lie to compel a public officer to do any official act which the law does not impose upon him, or to discharge the duties of his office in a manner not authorized by law; or to do any official act which the law does not expressly or by implication require such officer to perform: Shisler v. Philadelphia, 239 Pa. 468; Davis v. Patterson et al., 12 Pa. Superior Ct. 479; Com. ex rel. v. Fitler, 136 Pa. 129. To warrant the issue of mandamus against an officer to compel him to act, a duty to do so must be imposed upon him by law; the entire scope of the writ in this respect is to compel the officer to perform his duty and it cannot be invoked to enlarge or confer a power upon him to act: 18 Ruling Case Law, § 31, page 117.

The petition for the writ in this case alleges that it is the duty of the secretary defendant, under the School Code, to keep a correct and proper record of all the proceedings of the board, prepare such reports and keep such accounts as are required by the provisions of the act, and he shall be the custodian of all the records, papers, etc. From the petition, however, we cannot determine whether or not the papers and records, inspection of which is desired on behalf of all the taxpayers of the township and the petitioner as school director, are public records, and, therefore, cannot determine whether it is the implied duty of the secretary, although it is not the statutory duty, to submit them to the inspection of a party who has a special or peculiar interest therein, even though we might conclude that the minutes of the proceedings of the school board are a public record. For we recognize that there are official acts which public officers are required to.perform by implication of law as well as by express direction. The courts have no jurisdiction to compel by mandamus a public officer to do any act which the law does not impose upon that officer a duty to perform, or to discharge the function of his office in a manner not authorized by law, or to do anything which the law does not expressly or by implication require him as an officer to do. The court cannot impose duties upon public officers; the function of the writ of mandamus is to enforce duties imposed by law: Davis v. Patterson, supra. The petition, therefore, does not only fail to show any special or peculiar interest in the records and papers desired on the part of the plaintiff as taxpayer and school director, as well as all other taxpayers of the township included within the alternative mandamus, but there is not the barest averment in the petition showing any duty resting upon the defendant to do the acts prayed for. If the petition fails to show any duty resting on the defendant, the mandamus will be refused: Smith v. Com. ex rel. Dillon, 41 Pa. 335. There being no legal right on the part of the plaintiff, or corresponding duty on the defendant, exhibited in the petition, the third reason to quash the writ must be sustained.

The fifth and eighth reasons for the quashing of the writ are as follows: (5) The relator complains in a dual capacity (a) as a school director and (b) as a citizen and taxpayer and on different grounds in each capacity; (8) the alternative writ of mandamus as allowed is not supported by the averments of the petition.

This is based upon the averments in the petition that the writ is requested on behalf of the plaintiff as a school director, in order that he might be able to perform his official duties, and, secondly, as a citizen and taxpayer, because the records and papers, as well as the minutes, are the property of the entire school district, and, therefore, every citizen and taxpayer has a right to inspect them. And in his prayer he prays for the direction to the secretary to permit not only the plaintiff, but any other citizen and taxpayer of the township to examine and inspect the papers, records, etc., and minutes of the said school district. It having heretofore been concluded in this opinion that the plaintiff, not only as a taxpayer but also as a school director, did not exhibit in his petition a special and peculiar interest in “records, papers, etc., and the minutes of 1924, 1925, 1926 and 1927,” or any legal right in the premises, it is not necessary to discuss these reasons.

And now, July 23, 1928, for the reasons herein stated, the writ of alternative mandamus heretofore granted in this case is hereby quashed.

And now, July 23, 1928, upon motion of counsel for the plaintiff, an exception is allowed and bill sealed. Prom M. M. Burke, Shenandoah, Pa.


source: Caselaw Access Project

author: Kirkpatrick, Dist. J.,

license: Public Domain

text:
    Campbell-Ewald Co., Inc., v. Aldine Trust Co.

      Kirchner, Mitchell & White, for plaintiff; C. S. Wesley, for defendant.
    Jan. 16, 1929.
   Kirkpatrick, Dist. J.,

This is a suit against a Pennsylvania trust company upon an alleged contract of guaranty of an account. The case is before the court upon an affidavit of defense which admits the facts pleaded, but raises the issue of law that they do not constitute a legal cause of action. Two separate questions are involved.

The first question is whether the defendant trust company is authorized by its charter to enter into contracts of guaranty. The defendant contends that it is not, and raises the defense that the contract is ultra vires, and, therefore, unenforceable.

The defendant was incorporated under the general corporation laws of the State of Pennsylvania in force at the date of its incorporation. The original Corporation Act of 1874 did not authorize the incorporation of trust companies as such. Paragraph 29, section 19, of that act, however, provided for the incorporation of title insurance companies. By the subsequent Acts of 1881 and 1889, the powers of such companies were greatly enlarged so as to permit them to do a general trust company business, and under these statutes the defendant company was incorporated. Subsequently its powers were somewhat enlarged by the Acts of May 29, 1895, P. L. 127, and May 9, 1923, P. L. 173. The Act of 1889, referred to above, provides that title insurance companies shall have power, among other things, “To act as security for the faithful performance of any contract entered into with any person, or municipal or other corporation, or with any state or government, by any person or persons, corporation or corporations.” Under this provision, the defendant would have the power to enter into a contract of guarantee such as that which is the basis of this suit, unless such power has been taken away by subsequent legislation.

The defendant relies on the Act of May 16, 1923, P. L. 248, which provides, inter alia, that “no bank shall become surety on any bonds. . . .” Whether this act applies to title insurance companies incorporated under the laws above referred to and functioning as trust companies need not be here decided, because it must be obvious that a simple contract guaranteeing an open account is not a bond. “The word ‘bond’ at common law (and even now as a general rule) imports a sealed instrument:” Koshkonong v. Burton, 104 U. S. 668, 673. It may be that subsequent judicial usage has somewhat widened the scope of the common law definition, but it is certain that the concept involved requires some degree of formality. While courts will sometimes extend the literal meaning of words of a statute in order to accomplish what they think is the purpose of the legislation or to avoid illogical consequences, we do not think that any rule of interpretation would permit us to hold that the informal interchange of telegrams and letters in this case constituted a bond within the meaning of the act.

The second question involved in the case is whether or not the letters and telegrams passing between the parties constitute a memorandum sufficient to comply with the statute of frauds. The statement of claim alleges, first, a verbal arrangement entered into between May 1 and May 18, 1927, by which the defendant agreed with the Everkeen Corporation to guarantee to the plaintiff, Campbell-Ewald Company, the Everkeen Corporation’s account with it to the extent of $25,000. Thereafter, certain letters and telegrams passed between the plaintiff and the defendant, of which the following are essential portions:

May 18th, telegram, Campbell-Ewald to Aldine Trust Co. ' “Please confirm by wire and later by letter twenty-five thousand dollar Everkeen guarantee.”

May 18th, telegram, Aldine Trust Co. to Campbell-Ewald “Twenty-five thousand guarantee Campbell-Ewald O. K.”

May 18th, letter, Aldine Trust Co. to Campbell-Ewald. “We have just telegraphed you as follows: ‘Twenty-five thousand dollars guarantee Cam-bell-Ewald Co. O. K. . . .’ ”

July 15, 1927, letter, Campbell-Ewald to Aldine Trust Co. . . We extended credit to Everkeen Corporation in the amount of $25,000.00, and expect that the Aldine Trust Company will abide by its written admission to us that the account was guaranteed in that amount.”

July 18, 1927, letter, Aldine Trust Company to Campbell-Ewald Co. . . the guarantee has been withdrawn, it cannot be expected that a guarantee will continue indefinitely, and we feel that it is our privilege to withdraw at any time.”

July 21, 1927, letter, Campbell-Ewald to Aldine Trust Co. “. . . The Aldine Trust Company, by wire and letter, guaranteed the account of the Everkeen Corporation to the extent of $25,000. . . .”

July 25, 1927, letter, Aldine Trust Company to Campbell-Ewald Company. “. . . I felt that we should get out from our guarantee, and I still feel that way. . . . I . . . must insist that there be no further credits under this guarantee. . . .”

The principles of law applicable to this correspondence are: First, that the terms of the contract need not all appear in a single writing if the separate writings contain either express references to each other or internal evidence of their unity, relation and connection: 27 Corpus Juris, 262, and cases cited. Second, that where the agreement to guarantee the debt of another appears from the writing, it is not necessary that the whole arrangement and contract between the parties in any way connected with the guarantee be incorporated in the writing: Title G. & S. Co. v. Lippincott, 252 Pa. 112. Third, that the memorandum required by the statute of frauds may be made subsequently to the making of the contract itself and at any time before an action is brought on the contract. Fourth, that a letter incorporating terms of the contract by internal reference will bind the defendant, even though it disclaims responsibility or attempts to repudiate the contract.

In Howell v. Witman-Schwartz, 7 Fed. Repr. (2nd), 513, the Circuit Court of Appeals for the Third Circuit applied the principles above stated to a ease so close on its facts to the one now before the court as to be dispositive of it, and held the memorandum sufficient.

The statutory demurrer is overruled and the defendant is directed to answer.


author: Biddle, P. J.,

text:
    Standard Engineering and Lubricating Co. v. Ryder’s Dairy.

      Hyman Goldstein, for plaintiff; John D. Fallen, for defendant.
    April 17, 1928.
   Biddle, P. J.,

The plaintiff in this action brought suit against the defendant before J. L. Boyer, justice of the peace, to recover an alleged balance due it. On Nov. 15, 1926, the justice entered judgment in favor of the defendant and against the plaintiff for the sum of $96 and costs. From this judgment the plaintiff took an appeal, which was filed to the above number and term on Nov. 27, 1926; and on the same date the plaintiff’s statement of claim was filed. On Jan. 24, 1927, at the instance of the defendant, a rule was granted upon the plaintiff to give security for costs; and on Feb. 10, 1927, a bond to secure the costs was entered by the plaintiff. On March 19, 1927, the defendant presented its petition, setting out that the plaintiff had previously brought an action against the same defendant before Justice Boyer on the same cause of action, and that in that proceeding the justice had rendered judgment in favor of the plaintiff for the amount of its claim with costs; that the defendant appealed from the judgment of the justice in the prior suit and filed the transcript to No. 30, September Term, 1926; that to that number and term a rule was taken by the defendant on the plaintiff to enter security for costs, and that the plaintiff, failing to comply with the rule, had a judgment of non-suit entered against it; that, subsequently, the plaintiff’s attorney, Hyman Goldstein, Esq., marked the ease discontinued. Contending that the discontinuance by the plaintiff entered to No. 30, September Term, 1926, amounted to a retraxit and was a bar to the second action brought by the plaintiff against the defendant on the same cause of action, the defendant moved the court to strike off the appeal taken by the plaintiff to No. 234, December Term, 1926. On March 19th, a rule to show cause why the appeal should not be stricken off was granted as prayed for. To this rule an answer was filed by the plaintiff, admitting the facts alleged in the petition but denying that the' proceeding to No. 30, September Term, 1926, amounted to a retraxit or constituted a bar to the bringing of the present action, and contending that its appeal should, therefore, not be stricken off. The costs of the proceeding to No. 30, September Term, 1926, had been paid prior to the institution of the second action before the justice of the peace. No depositions were taken, and the matter comes before us for disposition on petition, rule and answer.

It may be doubted whether the court would be justified in striking off an appeal regular upon its face for matters outside the record and whether the remedy of the defendant should not have been to raise the matter suggested in the petition in her affidavit of defense. But, as we think that, for other reasons, the pending rule cannot be sustained, we will dispose of it on its merits without regard to any question as to the propriety of the procedure adopted.

The judgment entered against the plaintiff to No. 30, September Term, 1926, was merely a judgment of non-suit under our rules of court; and this did not in any manner affect the merits of the case between the parties, and such judgment of itself would not be sufficient to prevent a subsequent suit on the same cause of action: Fitzpatrick v. Riley, 163 Pa. 65; Bliss v. Philadelphia R. T. Co., 73 Pa. Superior Ct. 173.

It is contended, however, that the entry of the discontinuance by the plaintiff after the entry of judgment against it was the equivalent of a retraxit. In view of the fact that the judgment of non-suit entered was against the plaintiff and not in its favor, we are unable to see what standing the plaintiff had at that time to discontinue the action any more than the defendant would have the right to discontinue had a final judgment been entered against her. As we view it, the most that the plaintiff could have done after the entry of judgment of non-suit was to ask the court to open that judgment after permitting the plaintiff to pay the costs and to give security for the costs that might accrue in the future; but, even if the plaintiff might of itself take the action that was taken in this case, we do not think that it can be considered as a retraxit. It should be noted that the appeal from the decision of the justice in this case was that of the defendant, not that of the plaintiff; and, as was said by the Supreme Court of this State under similar conditions: “The defendant in the judgment of the justice appealed therefrom. During the pendency of that appeal, the judgment was superseded. The case was an action pending. Thereupon the plaintiff, by discontinuing his action, not only put the case out of the Common Pleas, but left no judgment before the justice:” Township v. Gordner, 109 Pa. 116; Lamson Store Service Co. v. Lavin, 13 Dist. R. 273; Walentovic v. Jakovac, 74 Pitts. L. J. 640.

It has been held also by the appellate courts of this State that a technical retraxit, which is almost unknown in our practice, only exists where the plaintiff comes personally into court, and that a proceeding by an attorney will not have the same effect: Lowry v. McMillan, 8 Pa. 157.

The cases cited by the learned counsel for the defendant in his brief, if examined carefully, do not conflict with the views expressed above. In the case of Taylor v. Parkhurst, 1 Pa. 197, the court expressly avoided any determination of the suggestion that, a discontinuance of a proceeding not in the Common Pleas but before a justice of the peace after judgment by the justice amounted to a retraxit. In the case of Rose v. Turnpike Co., 3 Watts, 46, where the plaintiff had appealed from the decision of the justice and then discontinued his appeal in the Common Pleas, it was held that this made the decision of the justice on the merits conclusive as to the matters litigated before him. But the distinction there is that it was the plaintiff who appealed from the decision of the justice and who discontinued his appeal, which had the effect of allowing the decision of the justice to stand as if unappealed from; and, as was said in Beynon v. Peterson, 7 Kulp, 259, as long as the judgment stands not reversed, it is a bar to a second suit for the same cause of action. And one of the cases cited by the defendant in support of his contention, namely, Gibson v. Gibson, 20 Pa. 9, held that a discontinuance means no more than a declaration of the plaintiff’s willingness to stop the pending action, and does not constitute a bar to a second suit.

It may also be noted that in the former action the justice entered a judgment in favor of the plaintiff, while in the second he not only refused to find in favor of the plaintiff, but entered a judgment against the plaintiff for $96 and costs. Even if the plaintiff could no longer assert its claim against the defendant, it surely would not be compelled to accept an adverse decision on the defendant’s counter-claim; and the appeal would have to be sustained to permit the plaintiff to dispute that.

And now, April 17, 1928, the rule to show cause why the appeal in this case should not be stricken off is dismissed, at the cost of the defendant.

From Francis B. Sellers, Carlisle, Pa.


author: Stewart, P. J.,

text:
    Callone & Fishburn v. Fisher.

      Herbert J. Hartzog, for plaintiffs; Howard V. Fisher, for defendant.
    June 4, 1928.
   Stewart, P. J.,

This is a rule to show cause why the above action should not be stayed and the parties compelled to arbitrate under the provisions of the Act of April 25, 1927, P. L. 381, entitled “An act concerning arbitration, and to make valid and enforceable written provisions and agreements for the arbitration of disputes in certain contracts, including contracts to which the State or any municipal subdivision thereof may be a party; regulating the procedure under such provisions and agreements, and conferring certain powers and imposing certain duties upon the courts with reference thereto.” The 1st section provides as follows: “A provision in any written contract, except a contract for personal services, to settle by arbitration a controversy thereafter arising out of such contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” It is plain that the agreement must be in writing and that a contract for personal services is exempt. The 2nd section gives the court power to stay proceedings brought in violation of an agreement, “providing the applicant for the stay is not in default in proceeding with such arbitration.” The 3rd section, which is the one under which this rule was granted, provides for the determination of the question whether there was an agreement to arbitrate and failure to comply with the agreement. It also provides, “Five days’ notice in writing of such application shall be served upon the party in default.” No such notice was given in the present case. An answer to the petition was filed by the plaintiffs, but the defendant filed no replication to the answer, and the result is that the facts in the answer must be taken as admitted. See Jacob Bonow B. & L. Ass’n v. Sulkin, 21 Northamp. Co. Repr. 183. They put the petitioner out of court. The admitted facts show that the suit was commenced before an alderman. Defendant appeared by counsel before the alderman and requested him to note on his docket the following: “That both parties have agreed to arbitrate. Therefore, under the Act of 1927, the alderman has no jurisdiction.” The alderman made no disposition of that motion other than- to go on and hear the case and render a judgment for the plaintiffs. The defendant thereupon appealed, and under our rule of court a rule was issued of course on the plaintiffs to file a statement, which they did. We have called attention to the fact that the arbitration act contains a provision that the applicant for the stay be not in default. The act itself does not confine its scope to proceedings before the court. The 3rd section is general, and there is no reason why defendant could not have commenced the present proceeding as he did when the case was before the alderman, and under well-considered decisions he was surely in default in taking any further step. We attach no importance to the rule to plead, because that was issued under a rule of court, but he should not have appealed. That puts him in default.

We have considered the above matters, which are somewhat technical, but, back of it all, a careful examination of the letters which he attached to his petition shows that while the parties did agree to arbitrate, yet there is nothing from the letters, conceding that they amount to an agreement in writing, that comes within well-settled rules as to arbitration agreements. After reading them carefully, we do not know what it was that was to be arbitrated. The decisions on this subject are uniform. In the leading case of Lauman v. Young et al., 31 Pa. 306, it was held: “If the parties to a contract provide that any dispute which may arise between them in reference to the subject-matter of the contract shall be determined by a third person therein named, whose decision shall be final, no action can be sustained at law in reference to matters embraced in the prospective submission. But, in order to oust the jurisdiction of the courts, it must clearly appear that the subject-matter of the controversy was within the prospective submission. The right of trial by jury is not to be taken away by implication.” In Chandley Bros. & Co. v. Cambridge Springs Borough, 200 Pa. 230, Mr. Justice Brown said: “If the contracting parties agreed that the engineer should pass upon this dispute, and that his decision should be final and conclusive, they are bound by it, if it was properly made; but it must clearly appear that such power was given to him. The terms of the agreement are not to be strained to discover it. They must be clear and unmistakable to oust the jurisdiction of the courts; for trial by jury cannot be taken away by implication merely in any case.” To the same effect are Dobbling v. York Springs Ry. Co., 203 Pa. 628; Payne v. Roberts, 214 Pa. 568, and Ruch v. York, 233 Pa. 36. In Keiser v. Berks County, 253 Pa. 167, the late Judge Wagner, of Berks County, delivered an opinion, and the Supreme Court affirmed the case on his opinion. The syllabus of that case is: “An agreement to submit to an award of arbitrators must be mutual and must show a clear intent to submit the matter in dispute to a tribunal and to be bound by its decision; and the person asserting such agreement has the burden upon him to establish by proof its existence, and when such agreement is alleged to have been by parol, it must be established by the preponderance of the evidence.”

For all of the above reasons, the application must be denied. '

And now, June 4, 1928, rule to show cause why arbitration should not be proceeded with is discharged.

From Henry D. Maxwell, Easton, Pa.


author: Patterson, P. J.,

text:
    George et al. v. Kephart.

      Mitchell MacCartney, for petitioners; George M. Meyers, for respondent.
    July 21, 1928.
   Patterson, P. J.,

The defendant petitions the court in the above-stated case to be allowed to file his affidavit of appeal nunc pro tunc. The transcript shows that, in the presence of the plaintiff and the defendant, judgment was originally entered by the justice of the peace in favor of plaintiff and against defendant on Oct. 22, 1927, and on Nov. 9, 1927, defendant appealed, and on the same day filed a bond in the sum of $50, in accordance with the act of assembly. Said transcript of appeal was duly filed with the Prothonotary of the Court of Common Pleas of Blair County on Nov. 28, 1927, by counsel for defendant. On Jan. 3, 1928, on petition of Howard Long, one of the plaintiffs, rule was awarded on the defendant to show cause why his appeal should not be stricken from the record, for the reason that no affidavit of appeal, as required by the Act of March 25, 1903, P. L. 61, had been made. On Feb. 6, 1928, said rule was, by agreement of counsel, made absolute. On Feb. 17, 1928, the defendant presented his petition for an appeal nunc pro tunc, which matter is now before us for consideration.

Section 1 of the Act of 1903, above referred to, provides: “No appeal shall be allowed from the judgment of a justice of the peace or alderman unless the appellant or his attorney or agent, at the time of taking such appeal, shall make affidavit in writing that the appeal is not for delay, but because he verily believes that injustice has been done.”

By this act, therefore, it is mandatory upon the party desiring to appeal from the justice of the peace to make an affidavit at the time of taking said appeal. The petitioner in this case complains that he did not know of the requirement of the act of assembly and that he performed every duty required of him by the justice of the peace who made up the transcript. And it is contended that the Court of Common Pleas has discretionary power to allow an appeal nunc pro tunc in such cases.

We have carefully examined the reasons assigned by the petitioner, as well as the legal authorities cited in support of said petition, and have concluded that the prayer of the petitioner must be refused for several reasons:

1. It is not alleged in the pleadings, and it has not been argued by counsel, that the defendant, if the appeal be allowed, has a just and complete defense to plaintiff’s claim or any part of the same. In Hamilton v. Beauty Shop, 16 Del. Co. Reps.,474, it is held: “No allegation appears in the petition for the rule that the defendant has a defense to plaintiff’s claim, which is essential where the equitable powers of the court are to be invoked. The petition should aver not only that defendant has a just and complete defense to plaintiff’s claim, or part of the same, but should also set forth the particulars thereof.”

2. From the time the transcript was filed, to wit, Nov. 28, 1927, until the date of the filing of the present petition, Feb.' 17, 1928, a period of almost three months had elapsed, and during that period the defendant petitioned to have the appeal stricken from the record without filing his petition for an appeal nunc pro tunc. Under the decisions of the appellate courts, it is necessary, in seeking the equitable discretion of the court, to be diligent, and in this case, had there been sufficient grounds set forth in the petition, we are of the opinion that no appeal could be allowed at this time, for the reason that the petitioner had not exercised due diligence in the presentation of the case.

In Kaumagraph Co. v. Thissen Silk Co., 42 Pa. Superior Ct. 110, it is held: “While it is true that there is always an exercise of judicial discretion in this class of cases, yet it must be based upon something which gives the judiciary a right to set aside the provisions of the statute. Mr. Justice Mitchell speaks of it as an ‘inherent and necessary power.’ The question remains, when shall it be exercised? In Kerr v. Rodgers, 9 Phila. 525, Judge Paxson said: ‘The frequency of these applications admonishes us that we ought not to relax the rules of law applicable to such cases. Nothing short of an act of assembly can give a man an appeal when he has lost his right thereto by neglect. There is a class of cases, the number of which we do not feel disposed to increase, in which it has been held that a defendant may be allowed to file his appeal nunc pro tunc. Thus, where a defendant made an effort to appeal, had exercised due diligence, and had been prevented from taking his appeal by the absence from the county, or sickness of the alderman, or by a refusal of the latter to take the bail or give the defendant a transcript, the latter has been allowed to enter his appeal after the twenty days have expired.’ ”

In the present case, the defendant actually took an appeal and for nearly three months thereafter he failed to petition the court for permission to file the affidavit, and to this date has failed to allege that he has any defense to all or any part of said judgment. For these reasons, we are of the opinion that the court is without power of discretion to grant the relief prayed for.

In Ward v. Letzkus, 152 Pa. 318, it is held: “Where an appeal has been taken from the judgment of a justice . . . within the time required, . . . but, through the forgetfulness <$f counsel, the transcript was not filed in the Court of Common Pleas until after an intervening return-day had passed, the court has no jurisdiction to permit the appeal to be filed nunc pro tunc.”

In the First National Bank v. Fair, 72 Pa. Superior Ct. 457, 461, it is said: “It was then too late (almost four months) to consider the petition to strike off the transcript as a petition for an allowance to appeal nunc pro tunc made within proper time. This we think was not the exercise of proper judicial discretion. The defendant should have presented his petition for the allowance of an appeal nunc pro tunc promptly, at least before the expiration of twenty days after notice. The court should not have relieved him from the effect of his not moving promptly or properly.”'

Decree. — Now, July 31, 1928, rule to show cause why affidavit of appeal should not be allowed nunc pro tunc with the same force and effect as if it had been filed on Nov. 28, 1927, is hereby discharged.

Prom Robert W. Smith, Hollidaysburg, Pa.


author: Crumrine, P. J.,

text:
    Lustig’s Estate.

      George O. Frazier, for legatees.
    March 28, 1928.
   Crumrine, P. J.,

Jan. 13, 1926, this decedent executed a will, whereby he gave pecuniary legacies to six designated charities — $200 to one and $100 to each of the other five, making a total of $700. Of this will he made Rabbi Wolf Leiter the executor.

On April 30, 1927, he executed another will containing the usual clause of revocation, and providing, inter alia, as follows: “Of all the rest of my estate I bequeath and direct that the sum of $1000.00 One Thousand Dollars shall be given to Rabbi W. Leiter of Pittsburgh Pennsylvania which sum shall be distributed by him to all organizations Societies and Institutions as provided in the will heretofore made which is in his hands. This amount to be devided by said Rabbi Leiter according to his own discretion and judgement, all other remaining estate of mine shall go to my Lawful heirs.”

The decedent died May 6, 1928, or within seven days of the execution of the last will. Does the reference to the legacies of the former will save the clause quoted above from the operation of section 6 of the Wills Act of 1917, the testator not having lived thirty days from the date of the execution of his last will? I do not think so.

The only logical theory on which the legacies of the will of 1926 could be given effect would be that the testator’s reference to them in the clause whereby he gives $1000 to the rabbi saved them from the general clause of revocation, and that the first will is still effective pro tanto. But such was not the testator’s intention. The gift to Rabbi Leiter is entirely new. He is given $1000 instead of the $700 bequeathed to the named charities by the first will. And the method of distribution of the fund is entirely within the discretion of the rabbi. He is confined to the list given in the former will, but the amount each is to receive may be whatever he determines. Even had there been no general revocation of the first will, the charitable legacies would have been revoked by implication.

In Hoffner’s Estate, 161 Pa. 331, the second will republished the charitable bequest verbatim, and contained no clause of revocation. Nevertheless, the court held the bequest inoperative because the two wills differed as to their residuary clauses, the court saying: “The first will and codicil were, therefore, fatally inconsistent with the last one. But, independent of any rule of construction, the Act of 1855 does not permit us to seek for a legatee under some former will made more than a calendar month before death. If the bequest here is invalid, it is because the statute so declares, and for no other reason; if for that reason, then the same statute declares where it shall go, ‘to the residuary legatee or devisee.’ ”

See, also, Price v. Maxwell, 28 Pa. 23, and Teacle’s Estate, 153 Pa. 219.

It is significant that in the year elapsing between these two wills the testator’s entire scheme of disposition changed. In the first will he dismissed his children with legacies of $5 each, gave his wife what she would have taken under the intestate laws, and gave the entire balance to various charities. In the second he makes no gifts to charities except this one legacy; he gives substantial legacies to two children, and leaves the residue to his “lawful heirs.”

It is true, when considering the reason of the rules as to charitable bequests, it could be argued that this gift to charities was not one conceived in extremis, but could be traced back to the first will, executed more than a year before. But, however logical that reasoning may be, it cannot avoid the plain provision of the statute which must govern here.

Another question we are asked to decide is whether the gift of the residue to “my lawful heirs” includes the widow and two of the children for whom provision had already been made. Clearly it does. They come within the designation, and there is nothing to show any intention to exclude these three, who were the ones he wished principally to benefit.

A decree of distribution will be prepared in accordance with the foregoing.

From Harry D. Hamilton, 'Washington, Pa.


author: Ryan, P. J.,

text:
    Abolin v. Farmers’ American Fire Insurance Company.

      Webster Grim, for plaintiff; Thomas Ross, for defendant.
    May 7, 1928.
   Ryan, P. J.,

This suit was brought to recover the amount of insurance due upon a certain policy of insurance issued to the plaintiff by the defendant. The property insured, according to the statement of claim, was destroyed by fire on Jan. 8, 1926. It is averred in the statement of claim (paragraph 9) that “immediately after the said fire the plaintiff gave notice thereof, as required by the said policy, to the defendant, and thereafter, on Jan. 16, 1926, met the committee selected by the defendant to appraise and adjust the loss and damage, and submitted his proofs of loss, and to such further examination as is provided under the terms of the said policy.” The affidavit of defense questions the sufficiency of the averments of notice and proofs of loss, but we think them sufficient under Miller v. German-American Fire Insurance Co., 26 W. N. C. 204. The policy sued upon contains the following provision: “Article 43. No suit or action on this Policy for the recovery of any claim shall be sustainable in any court of law or equity unless the claimant shall show compliance with all the requirements of this Policy and the Constitution and By-Laws, nor unless commenced within twelve months next after the fire, storm or lightning causing the loss for which claim is made.” The affidavit of defense invokes this limitation of time on the bringing of suit, and avers that as this was done on Jan. 29, 1927, and as it is averred in the statement that the fire occurred Jan. 8, 1926, it was not brought in time, and must, therefore, be dismissed. The statement of claim contains the following averment: “Thereafter, during the summer of the year 1926, at several interviews between the plaintiff and William Frankenfield, one of the appraisers, investigators and directors of the defendant company, and with other officers and directors thereof, the said directors informed the plaintiff that the damages and loss would be paid to the plaintiff unless the company could prove that the said fire was of incendiary origin, or language conveying the same meaning, and asked for additional time for the investigations then being made and to be made by the officials of the State of Pennsylvania, which additional time, upon the request of said directors, the plaintiff granted.” A condition in an insurance poliey that a failure to bring suit within a certain time after loss shall preclude a recovery is a contract . . . and may be waived by the insurer, or he may be estopped by his act from insisting upon its enforcement: 14 Ruling Case Law, § 584. According to the statement of claim, it was not until Jan. 10, 1927, two days after the expiration of the limitation of twelve months from the fire, that defendant, through their counsel, orally refused to pay the claim. The company appears from the statement to have delayed the matter until this time and to be responsible for the failure of the plaintiff to bring suit within the time limit. Under these circumstances, the company cannot now set up the limitation provided in the policy. “A limitation or condition in a policy of insurance intended for the benefit of the corporation may be waived by it; and the fact of a waiver is a question for the jury:” Coursin v. Insurance Co., 46 Pa. 323. We conclude, therefore, that this affidavit of defense is insufficient and must.be overruled.

And now, to wit, May 7, 1928, the affidavit of defense raising questions of law is overruled, with leave to the defendant to file a supplemental affidavit of defense within fifteen days from this date.

From Calvin S. Boyer, Doylestown, Pa.


author: Schaeffer, P. J.,

text:
    Commonwealth ex rel. Adams v. Adams.

      Lee Friday, for petitioner; William A. Shomo, for respondent.
    Feb. 25, 1928.
   Schaeffer, P. J.,

The relator here is the mother who seeks to obtain from her husband the custody of their sixteen months’ old child. The relator and respondent are separated but not divorced. In these cases the welfare of the child is to be given greater consideration than the naked right of either parent to have it: Com. ex rel. Bloomfield v. Faxstein, 84 Pa. Superior Ct. 243. And the usual practice in this State is, where no reason appears to the contrary, to commit a child of tender years to its mother, who, in the common experience of mankind, is better fitted to have the charge of it: Com. ex rel. Keller v. Keller, 90 Pa. Superior Ct. 357. But the case before us is one of the exceptions. These parents have separated through no fault of the respondent, and this court, through Judge Stevens, refused to award the relator an order of support for herself. Upon being refused an order of support for herself, she admits that she stated that she would make the respondent take the child and that she thereupon voluntarily gave the child and its clothing to its father. The relator has no home for herself or the child except with her sister, whose reputation is good. On the other hand, the father resides with the child in the home of his own parents, who are people of respectability and some means, and where the child will be well and carefully reared. It seems to us that, under the circumstances, the probabilities are that the child’s best interests and paramount welfare will be promoted with the respondent rather than with the relator.

And now, to wit, Feb. 25, 1928, the writ is dismissed, at the cost of the relator.

From Charles K. Derr, Reading, Pa.


text:
    Snowberger v. Hartman et ux.

      Ashton Gardner, for plaintiff; Frank H. Fay, for defendants.
    July 26, 1928.
   Patterson, P. J.,

This case will be considered on petition to stay writ of fieri facias execution and to set aside judgment and answer thereto. J. B. Hartman and Annie M. Hartman are, respectively, man and wife, and jointly hold the title to one Chevrolet automobile, No. 12V52179. On Jan. 8, 1923, the said J. B. Hartman and Annie M. Hartman executed a judgment note payable to D. K. Snowberger. On Jan. 9, 1928, Annie M. Hartman was adjudged an involuntary bankrupt and the automobile in question was sold by her trustee in bankruptcy for the nominal consideration of $5 to one C. A. Hershberger, the car remaining in the possession of the said J. B. Hartman and Annie M. Hartman. On March 8, 1928, the above-stated judgment was entered, and on the same day fieri facias execution issued and levy made upon the car by the sheriff, in whose hands the car still remains.

The question involved is whether the sale by the trustee in bankruptcy was void. We believe that it was absolutely void and of no effect. The automobile, having been held jointly by man and wife, was an estate by entireties and not liable for the debts of either the husband or the wife, and this is so notwithstanding that no words were used describing them as married persons, when in fact they were married.

This conclusion is supported by this court’s opinion in the Estate of Joseph P. Raíble, late of the City of Altoona, deceased, entered to No. 859J, O. C., 1927, as follows: “A tenancy by entireties arises whenever an estate vests in two persons, they being, when it so vests, husband and wife. It may exist in personal as well as real property, in a chose in action as well as in a chose in possession. The common-law rule is that the words which in a conveyance to unmarried persons constitute a joint tenancy will create, if the grantees are husband and wife, a tenancy by entirety:” Bramberry’s Estate, 156 Pa. 628.

It is further supported in the case of Gasner v. Pierce, 286 Pa. 529, which reads, in part, as follows: “Neither husband nor wife, in whom property has jointly vested as an estate by entireties, can sell or assign their individual rights therein without the joining of the other or dispose even of the expectance of survivorship, and creditors of either acquire no enforceable lien by obtaining judgment or title by sale in execution.”

The automobile was not a part of the bankrupt estate of the said Annie M. Hartman, and, therefore, the sale by her trustee was of no effect. The title of the automobile is jointly held and is still the property of the said J. B. Hartman and Annie M. Hartman by entirety and liable for the joint obligations of these parties contracted since the adjudication of the bankruptcy proceedings. However, in the present case, the plaintiff, D. K. Snowberger, undertakes to sell the said automobile on a judgment against the said J. B. Hartman and Annie M. Hartman, man and wife, respectively, dated Jan. 8, 1923, or five years before the date of the bankruptcy proceedings, and it appears that the said Snowberger was listed as one of the creditors of the said bankrupt and that the proceedings in bankruptcy discharged her obligation to the plaintiff in the writ. It is clear, therefore, that the plaintiff now has a note, the payment of which may be enforced against J. B. Hartman, co-maker, only, the obligation on the part of the said Annie M. Hartman having been canceled by the adjudication in bankruptcy. And it is well established by numerous authorities that property held by entirety is not liable for the indebtedness of either the husband or the wife: Gasner v. Pierce, supra.

Decree. — Now, July 23, 1928, rule to strike from the record judgment as to Annie M. Hartman made absolute.

From Robt. "W. Smith, Hollidaysburg, Pa.


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

text:
    Harrison’s Estate.

      John R. K. Scott and William T. Connor, for exceptant.

      R. M. Remick (of Saul, Ewing, Remick & Saul), contra.
    March 12, 1929.
   Stearne, J.,

Testator left surviving a widow, four children and issue of a deceased child. One of his children was a son, J. Kearsley M. Harrison. The will was dated May 23, 1927, the eighth paragraph of which reads as follows:

“. . . I forgive my son Kearsley . . . any advances which may be charged against . . . [him] upon my books as of the date of this will.”

Appearing on the books of the testator at that date were two accounts relating to financial transactions with the son. One was styled “J. Kearsley M. Harrison Advancement a/c,” in which the son was charged with a balance of $60,000. The other was termed “J. Kearsley M. Harrison Loan a/c,” which shows a balance due by the son to testator of $12,870.88, and for which testator held, and his estate still holds, the son’s note.

The Auditing Judge ruled that the foregoing clause of the will exonerated the son from the repayment of the loans in addition to the advancements. We are unable to concur in this ruling.

Advance, in its strict legal sense, does not mean advancement. It has a different and far broader signification. An advance is usually a loan, or money advanced to be repaid conditionally. An advancement is money given by a parent to Ms cMldren as a portion of Ms estate and to be taken into account in the final distribution thereof: 2 Corpus Juris, 32; Bouvier’s Law'Dictionary (Rawle’s 3rd Revision), 151; 1 Words and Phrases, 214; Mosser Co. v. Cherry River B. & L. Co., 290 Pa. 67, page 70.

Because the testator used the technical word “advances,” the ruling of the Auditing Judge was to the effect that the testator used the word in its strict technical legal sense and, therefore, included the loans in his exoneration.

Under the facts of this particular case, it does not necessarily follow that testator did employ the word in such strict legal and technical sense. Advance and advancement are sometimes used synonymously: 2 Corpus Juris, 33; High’s Appeal, 21 Pa. 283, page 287.

In contracts, “the word (advances) has no such certain meaning that the court can determine the sense in which the term is used by the parties without examining the contract as an entirety and seeking the aid of the surrounding circumstances and the practical construction of the contract by the parties themselves:” 2 Corpus Juris, 33. Such a statement appears equally applicable in the construction of wills.

It is well settled that where testator did not intend to employ words or terms in their technical sense, the court will not give them that meaning, but, if possible, will construe them so as to effectuate his apparent intention: Wright’s Appeal, 89 Pa. 67; Walker v. Shugert, 292 Pa. 433, pages 438-439.

We are not persuaded that we are required to imply an intent that the word “advances” was employed in its strict technical sense, because otherwise the clause becomes mere surplusage. It may be conceded that advancements are extinguished by the mere execution of a will upon the testator’s decease: Newell’s Will, 1 P. A. Bro. 311; Krieder v. Boyer, 10 Watts, 54; 32 Am. Law Reps. 731. But surplusage is frequently discovered in wills: Seagrist’s Appeal, 10 Pa. 424; Smith v. Porter, 1 Binney, 208, page 210. However, implied intention must fall in the face of the expressed and apparent intention of the testator. This is particularly true when defining the meaning of such a doubtful and equivocal term as “advances.”

In our opinion, the testator, by his own acts, construed his own will. We are, therefore, relieved from resorting to rules of construction or technical definitions of particular words: Thompson’s Estate, 229 Pa. 542, page 546. We can attribute no other intention to testator than his use of the word “advances” as synonymous with advancements. When he loaned money to his son he took and retained notes to insure the repayment thereof. Such transactions he entered in his account books under “Loan a/c.” On the other hand, gifts to the son were entered under “Advancement a/c.” Obviously, testator recognized the distinction between the nature of the two transactions. It seems clear that all testator intended to extinguish were those gifts charged against the son on the books entered in the “advancement a/c.” Under these circumstances, the u.se of the word “advances” did not include loans charged in the “Loan a/c,” and for which testator took, and continued to retain, his son’s notes.

The exceptions are sustained.

Henderson, J.,

dissenting. — These exceptions involve the interpretation of the word “advances” in the eighth paragraph of the will, which reads as follows:

"... I forgive my son Kearsley . . . any advances which may be charged against . . . [him] upon my books as of the date of this will.”

I agree with the majority opinion that the word “advances” primarily relates to both debts and advancements. I can find no justification for interpreting this word in its secondary meaning, i. e., limiting it to advancements alone. In the absence of such justification, the primary meaning of this word should prevail, i. e., loans and advancements.

Furthermore, in that advancements are not deducted from legacies, the word “advances” as used in the will means nothing unless it relates to loans.

I would dismiss the exceptions.


text:
    King’s Estate.

      Asher Seip, for petitioner; E. J. and J. W. Fox, for executor.
    June 11, 1928.
   Stewart, P. J.,

This is a citation to the Easton Trust Company, as executor of the last will of William H. King, directing it to use the corpus of the estate in its hands to support the petitioner, who is the widow, in the manner in which petitioner and decedent lived at the time of the decedent’s death, in accordance with the spirit and true intent of the will of decedent, and that the court should fix the amount to be paid out of the corpus, in addition to the income of the estate. The petitioner alleged that she is still decedent’s widow; that all the real estate has been sold except one piece which yields an annual rental of $2500; that the amount of the estate above the real estate in executor’s hands is $31,591.32; and that her net income is $3250; that decedent expended approximately $10,000 a year; that the income received is insufficient for her support in the manner set forth in the will; and that the executor refuses to apply any of the corpus to her support. The answer admitted the income to be approximately $3250; denied that the decedent expended $10,000 a year, and averred that his income did not amount to that much a year; that the board of directors of the trust company acted on petitioner’s demand; and that in the exercise of their discretion had refused it; and that the income paid her was sufficient under the terms of the will; that the remaindermen and residuary legatees had notified the executor that it should not make any payment to the petitioner out of the principal; and that the court had no jurisdiction in this matter; and that the executor is the sole tribunal to decide upon the propriety of payments out of the corpus.

Depositions were taken, and the petitioner was examined and cross-examined as to her needs and requirements. At the close of her testimony, she testified that she should have $5000 a year out of the corpus, which would make the amount of her requirements for the first year over $8000, and she admitted that she knew year after year the income would be lessened. Upon the argument, this amount was lessened to $6000. Other witnesses were examined, but their testimony does not throw much light on the question involved. The will of the decedent provides: “Third. I give, devise and bequeath the net income of all the rest, residue and remainder of my estate, real, personal and mixed, to my wife Lillian Smith King for and during the term of her natural life, or so long as she remains my widow. Should the net income arising from my estate not be sufficient, in the opinion of my Executor hereinafter named, to comfortably support my said wife in the manner and style in which we are living at the time of my death, then the said Executor may use so much of the corpus of my said estate for her support as to the said Executor shall and may seem necessary and proper.” The fourth section provides that if his wife remarried, she was to receive one-half of the personal estate absolutely and one-half of the net income from his real estate for life. If she did not marry, at her death all the corpus of the estate then remaining was to go to his sister for life, and after her death to her children. In the event of his wife remarrying, one-half of the real estate and one-half of the personal estate was to go to his sister and her children, as above set out. In the seventh clause he commended to his wife the education of his nephew upon the lines which he had discussed with his wife “if her income be sufficient to enable her to do so.” In the eighth paragraph he commended to his wife the care of the same sister to whom the property was to go after the death or remarriage of his wife, and “request that, so far as consistent with her income from my estate, she give my said sister such care and attention as she may need in her declining years.” In the tenth and eleventh clauses he made certain directions to enable his wife to carry on the business in which he had been engaged.

That the court has jurisdiction appears from Dundas’s Appeal, 64 Pa. 325; Orr’s Estate, 283 Pa. 476, and McCullough’s Estate, 292 Pa. 177, but where the decedent has so plainly conferred the decision of the subject-matter of the present application on the executor, the court ought not to interfere unless the petitioner satisfies the court that the executor is not acting in good faith in refusing to give her anything out of the corpus. The burden is on the petitioner, and it is a heavy burden. In the third section of his will, the decedent said that the executor had the right to pass upon the amount needed to comfortably support his wife, and, in the next place, the executor had the right to decide how much of the corpus should be used for her support. It is true that in that section he used the words “in the manner and style in which we are living at the time of my death,” but it is manifest that the testator had in mind the support of his wife, rather than to lay down a standard which, if the figures given are correct as to what he spent, would exhaust this estate in a few years. In other words, it cannot be supposed that testator intended that his wife should live, even as she testified they lived, for five or six years, and then that she should be penniless for the rest of her lifetime. He intended the income to be for her support. That plainly appears from the seventh clause when he thought that it might even be sufficient to aid in the education of his nephew, and 'in the eighth clause when he thought that his wife might aid his sister from the income. The whole will shows that the remaindermen were constantly in testator’s thought, and while he used the expression “all the corpus of my estate then remaining,” it must have been his intention that the remainder would be what was left after the executor had exercised its discretion. The exact question does not seem to have been passed on by the higher courts. We passed upon a somewhat similar application in Trust Estate of Theophilus P. Gould et al., 12 Northamp. Co. Repr. 138, the syllabus of which is: “Where testatrix’s will created a trust and directed that interest should be paid to certain beneficiaries for their lives, and further provided ‘in case of illness or other good and sufficient cause the income or interest should not be sufficient for their proper provision or support, or for the survivor, then I direct that so much of the principal as may be necessary shall be taken for that purpose,’ and the beneficiaries request the trustee to pay them certain sums out of the principal, which the trustee refused to do, neither the beneficiaries nor the trustee are the sole judges as to what should be paid. The court will consider whether the application is made in good faith and whether the circumstances of the beneficiaries are such as to equitably induce the court to decree an allowance to carry out the true intent of the testatrix.” We also have passed upon a similar matter where the wife had a right to consume the residuary estate. That case was affirmed by the Supreme Court: Fassitt v. Seip, 240 Pa. 406. In that case, Mr. Justice Elkin quoted with approval the following: “What was said by Mr. Justice Mitchell in Tyson’s Estate, 191 Pa. 218, 226, is applicable here: ‘The extent of the widow’s consumption of the estate was within her own control. Her decision was without appeal, but it must have been honestly reached in accordance with the purpose the testator intended, and not merely colorably to defeat his will. She had power to carry out his intentions by sale, transfer and consumption of the proceeds in such a way as to leave nothing at her death. But a transfer with intent not to consume for herself, but to preserve for others after her death, and to change the beneficiaries after her from those chosen by her husband to. others of her own selection would be a fraud on the testator and his will. This is a question of fact to be determined by the court on the circumstances; and the evidence in each case as it arises.’ ” In La Bar’s Estate, 181 Pa. 1, the testator directed that certain bank stock should be held in trust for his. housekeeper “so that she receive all the income or dividends arising or accruing therefrom, immediately from and after my death, so long as she remain unmarried, and if at any time or times she needs any part of the principal of the stock, she is at liberty to receive it for her support and maintenance. If any part of said stock is remaining at her death or marriage, it shall be distributed as is hereinafter provided in relation to my residuary estate.” On page 6, Mr. Chief Justice Sterrett said: “This latter provision was evidently intended to provide for possible temporary exigencies that might arise and make it necessary to supplement, for the time being, her regular annual income, which he evidently considered would be ordinarily sufficient for her needs. It was never intended to be used as a pretext for demanding and appropriating to her own use the entire corpus of the trust. Nothing could have been further from the testator’s intention than that his beneficiary should, within less than three years'after his decease, have the right to capriciously and arbitrarily demand from his executors an absolute transfer to-herself of all the bank stock constituting the corpus of the trust created solely for the purpose of providing an annual income for her comfortable ‘support and maintenance.’ If such an unconscionable demand as that were acceded to, it would not only defeat the manifest purpose of the testator in creating the trust, but it would operate as a fraud upon his residuary legatees. It cannot be seriously asserted, nor is there a particle of evidence to show, that at any time since the death of her benefactor has the income of the trust been insufficient for the appellee’s comfortable support and maintenance in the style in which she had been accustomed to live.” Again, he said, on page 7: “If she hereafter demands any portion of the corpus, on the ground that she needs it, the trustees and court below should be satisfied that the alleged necessity therefor really exists. In other words, if it does not appear that such claim is made in good faith and is grounded on reasonable necessity it should not be allowed. In no other way can the intention of the testator, as we understand it, be fully and fairly carried out, and the respective interests of all parties be properly protected.” It will be perceived that that case is unlike the present case, because in the present case the testator makes the executor the judge, while in that case the beneficiary was made the judge. See, also, Watson’s Estate, 241 Pa. 271, which seems to be the latest discussion of the subject. Having in mind the rules that were applied by the Supreme Court in above cases, and having in mind the amount of this estate, and having carefully read all the evidence, we feel that petitioner has failed to make out a case that would cause us to interfere with the discretion of the executor or to add anything more to the annual income.

And now, June 11, 1928, citation is discharged, at the costs of the petitioner.

Prom Henry D. Maxwell, Easton, Pa.


author: Evans, P. J.,

text:
    Commonwealth v. Nottage.

      H. R. Stees and H. G. Teel, for Commonwealth; E. J. Flynn, for defendant.
    Jan. 28, 1929.
   Evans, P. J.,

This proceeding was commenced by warrant issued in the name of the Commonwealth.

The information and transcript disclose that the defendant is charged with reckless driving of an automobile in the Township of Conyngham, in this county, on Sept. 1, 1928; that the information was lodged before S. F. Shoup, a justice of the peace, on Oct. 2, 1928, more than thirty days after the alleged reckless driving occurred; that the warrant was issued the same day; that the defendant was arrested Oct. 3rd and taken before Robert P. Farrell, a justice of the peace in the Borough of Centralia, where he gave bail in the sum of $300 for his appearance at the next sessions of the court.

The reasons urged for quashing the proceedings are:

“1. Because the transcript in this case does not disclose that there was a compliance with the Vehicle Code.

“2. Because there is nothing whatever contained in the transcript to indicate the nature of the proceeding to which the defendant must plead, the information alleging an offense on Sept. 1, 1928, the warrant issued on Oct. 2, 1928, and the arrest being made on Oct. 3, 1928.

“3. That if the proceeding is under section 1001 of the Vehicle Code, the court is without jurisdiction to try the defendant under that section, because there is a non-compliance with the provisions of section 1205 of the Vehicle Code.

“4. That the transcript of the justice of the peace is not self-sustaining.”

Sub-section A of section 1001 of the Act of May 11, 1927, P. L. 886, 960, defines reckless driving thus: “(A) Any person who drives any vehicle upon a highway carelessly and wilfully or wantonly disregarding the rights or safety of others, or in a manner so as to endanger any person or property, shall be guilty of reckless driving.”

Section 1203 of the act, Summary Offenses, provides:

“Any person violating the provisions of any of the following sections or subsections of this act shall, upon summary conviction before a mayor, burgess, magistrate, alderman, or justice of the peace, be sentenced to pay the following fines and costs of prosecution and, upon non-payment thereof, to undergo imprisonment in the county jail for the terms indicated for each offense:

“(b) Violating any of the provisions of sections (among them 1001), twenty-five dollars or, upon non-payment thereof, to undergo imprisonment for not more than ten (10) days.”

Section 1204 of the act provides that all prosecutions for offenses defined in this act, except as otherwise herein provided, committed by any person, shall be brought under this act and not under any local ordinance, rule or regulation.

Section 1205 of the act provides that proceedings under this act may be commenced by warrant issued in the name of the Commonwealth; that a copy of the information shall be served with such warrant; that before the service of any warrant and within the period of seven days after the information has been lodged, the mayor, burgess, magistrate, alderman or justice of the peace (issuing the warrant) shall mail to the person so charged a notice in writing of the issuing of the warrant, together with a copy of the information; and if the person named in the warrant shall not voluntarily appear within ten days thereafter, the warrant may then be served; that all informations charging violations of any of the provisions of this act, except in cases where the offense is designated a felony or misdemeanor, shall be brought within two weeks after the commission of the alleged offense, and not thereafter.

The reasons for quashing this proceeding must be sustained for the following reasons:

(a) The proceeding was not commenced within two weeks after the reckless driving occurred, as required by paragraph 4 of section 1205 of the act.

(b) A copy of the information and notice in writing of the issuing of the warrant were not mailed to the defendant by the justice of the peace issuing the warrant ten days before the warrant was served, as required by paragraph 3 of section 1205 of the act.

And now, Jan. 28, 1929, the reasons for quashing the proceeding are sustained and the proceeding is quashed and set aside, and the defendant, John Nottage, is discharged from his recognizance.

We make no order with respect to the payment of the Commonwealth’s bill of costs in this case, amounting to the sum of $59.88; but in no event should the same be paid by or charged to the County of Columbia.

Prom R. S. Hemingway, Bloomsburg, Pa.


text:
    Fritz v. Fritz.

      R. R. Koch and F. P. Krebs, for libellant.
    July 2, 1928.
   Hicks, J.,

This is a libel in divorce on the ground of desertion. Personal service of the alias subpoena sur divorce was made upon the defendant and an answer filed by him. A master was appointed and testimony taken, the respondent and his witnesses being absent from the hearing. The master recommended a decree in divorce and the entire record was handed to the court for disposition. Upon perusal of the libel in divorce, the court was of the opinion that the reason for divorce, grounded upon desertion, was not substantially set out. The libel describes the grounds of the divorce as follows: “That on or about May 9, 1925, the said respondent, in violation of his marriage vow, wilfully and maliciously deserted the libellant without any just or reasonable cause, and such desertion has persisted in from May 9, 1925, until the present time, and still persists therein.” The libel was filed and the subpoena in divorce awarded on June 20, 1927. An examination of the evidence satisfies the court that a desertion which would justify the entry of a decree has been established, but the libel does not allege desertion, either substantially or actually, in the language of the Act of March IS, 1815, 6 Sm. Laws, 286. However, owing to the fact that no cause of action had been set out in the libel, but in the light of the testimony adduced before the master and submitted to the court, the latter withheld final disposition to permit counsel for the libellant to argue a rule to amend the libel so as to set out the ground of desertion exactly or substantially in the language of the statute, we now have before us the disposition of the rule to amend, which was personally served upon counsel for the respondent.

It is well to remember that this is not an ex parte proceeding, which differentiates it from the case of Weiss v. Weiss, 29 Dist. R. 1000, and the case of Chroust v. Chroust, 11 D. & C. 76, both of which were ex parte proceedings and amendments disallowed. It is indisputable that the amendment in this case, if allowed, would be substantial and not merely formal in character, and that the amendment of a libel which originally did not set forth a cause of action was in effect a new libel: Chroust v. Chroust, supra; Maynard v. Maynard, 18 Dist. R. 410. No amendment of the record of a case which is more than merely formal should be allowed without notice to the opposite party: Comrey v. East Union Township, 202 Pa. 442; Weiler v. Weiss, 25 Pa. Superior Ct. 247. In this case, personal service having been made upon the respondent, counsel having entered an appearance for him and filed a power of attorney in accordance with our rules of court, and service having been made upon the respondent by service of the petition and rule for the amendment upon the respondent’s counsel on the same day as the rule was granted, although no answer to the rule was filed by him, we see no good reason why an amendment charging desertion, properly made out by the evidence, substantially in the language of the statute, should not be allowed, since it does not introduce a new cause of action, but rather sets forth in correct legal form the same cause intended to be alleged in the original libel: Maynard v. Maynard, supra.

The rule to amend the libel is made absolute, and thereupon, the amended libel having been filed and served, further proceedings according to law to be had.

From M. M. Burke, Shenandoah, Pa.