author: Smith, P. J.,

text:
    Morris Lumber Company, Inc., v. Harrington.
    No. 1.

      Van Scoten & Little, for plaintiff; F. A. & E. L. Davies, for defendant.
    Feb. 1, 1929.
   Smith, P. J.,

G. M. Darrow, as sheriff of said county, having levied upon a sawmill as the property of George Mansfield and G. E. Morris, defendants, under an execution against them in favor of W. A. Harrington, plaintiff, as of No. 34, January Term, 1929, such levy being made Nov. 21, 1928, the Morris Lumber Company, Inc., gave notice to said sheriff of its claim of ownership and title to said sawmill and that it was not the property of said Mansfield and Morris in said execution. Whereupon the sheriff petitioned the court for a rule upon the claimants to show cause why an issue in interpleader should not be framed to try the title to the mill in controversy, and a rule was granted by us Dec. 22, 1928, returnable the first Monday of January, 1929.

Jan. 2, 1929, exceptions to said rule were filed by the Morris Lumber Company, Inc., claimant, in which was stated under oath their title to said sawmill, and the source of ownership as being a purchase from Frank Major, of Tunkhannock, Pa., and that it was not claimed either directly or indirectly under the execution defendants, and asking that an order be made on the sheriff to withdraw his levy from such mill, release the same from the lien thereof and surrender its possession to the claimants; and if the execution creditor still claimed his right to maintain such levy, that the court hear the evidence of such contending parties and determine whether the prayer of the petition should he allowed and the exceptions sustained, and the sheriff be so directed.

If authority is needed that the “Interpleader Act” of May 26,1897, P. L. 95, and amendments thereto, including that of May 23, 1923, P. L. 346, are for the protection of the sheriff only, it is sufficiently afforded by the decision in Summit Hosiery Co. v. Gottschall, 292 Pa. 464, that failure to institute such proceedings will not avail the defendant therein, being the plaintiff in the writ by virtue of which the sheriff seizes and levies upon property, the title to which is in another, termed the claimant, such execution plaintiff being still subject to an action by the claimant to recover damages for “wrongful abuse of civil process and liability therefor.” As was said in the case cited (page 467) : “Even where such proceedings [in interpleader] are pending, an action of trespass is allowed so that a claimant may secure redress for injury suffered from the unlawful seizure,” the measure of damages being stated in Siegel v. The Netherlands Co., Inc., 59 Pa. Superior Ct. 132, 142.

The learned attorneys for the claimant, petitioner, base their application upon that portion of the 1923 (P. L. 346) amendment to the Interpleader Act, which is as follows: “Said rule for an interpleader shall become absolute at the return-day thereof unless exceptions thereto, sufficient in law, are filed by any of the parties interested, . . . and if the claimant or some one in his behalf, at or before such return-day, presents to said court, or to any judge thereof in chambers, a sworn statement of title in the form required for framing an issue under this act, showing that the claimant has a prima fade title to the property claimed, and does not derive the same directly or indirectly by, from, or through any defendant in such execution or process, said rule for an interpleader shall be made absolute . . . upon the filing of such statement of title, without hearing any plaintiff who has not previously filed any exception to said rule. If said rule shall be made absolute, either with or without a hearing,” &e., further providing for subsequent action and pleading by the parties.

It is contended that these provisions require the court to grant a hearing and receive evidence of the contending parties on the question of title, and as¡ persuaded thereby either to make rule absolute or to discharge the same, and in the latter case to direct the sheriff to withdraw his levy with the same effect for the sheriff’s protection as if the rule had been made absolute and an inter-pleader granted. This the execution plaintiff denies, and thus it is up for our determination.

The act does provide for filing exceptions to the rule, but does not affirmatively state how and in what manner they are to be disposed of, or the character of the decision or order to be entered, except inferentially from the language of the latter portion of the above quotation from the statute.

Under the statute, the court cannot immediately grant an issue in inter-pleader on presentation of a petition for that purpose. It provides, first, for a “rule to show cause” why it shall not be allowed upon the claimant and execution creditor. The language quoted is easily understood and means they shall have an opportunity to be heard and to “show cause” or reason for and against its being made absolute. Where and how? Of course, by and before the court at bar by first filing “exceptions sufficient in law;’’ sufficient in law meaning containing a recital of facts which, if sustained by evidence, force a certain legal conclusion by the court.

As in all cases of “rules to show cause,” the affidavit, petition or, as here, exception under oath, as an ex parte statement, is not evidence, but the basis of taking subsequent testimony, sometimes by deposition and at other times of witnesses testifying in open eourt.

The affidavit or exception [is] the basis of granting the rule to show cause, and the evidence subsequently taken that of the court’s action in either discharging or making rule absolute, which is an exercise of judicial discretion.

If a rule such as that in the case at bar be made absolute, the result is a “feigned issue” framed to try the title to the goods in dispute, and “whether it shall be granted is largely a matter of discretion with the court, and is subject to correction, on appeal, if there be a technical abuse thereof: Paugh v. Delaware County Trust, etc., Co., 62 Pa. Superior Ct. 523; Book v. Sharpe, 189 Pa. 44. Both these were interpleader cases, and the latter expressly decides the point under the Interpleader Act of May 26, 1897, being the original Interpleader Act, now amended, as above stated. The Supreme Court states the principle that under the Act of 1897, “the court is not to inquire into the merits of the respective claims further than to see that they are not merely colorable or frivolous or collusive, but may be the bases of bona fide suits. If they may be, the interpleader must be granted, even though the court be of opinion that the claims cannot finally prevail. That matter is to be determined on the trial of the issue, not on the preliminary steps for protection of the sheriff.” These “preliminary steps” may be related to the exceptions filed, rule to show cause and ruling of the court on the evidence produced. To the same effect is Tygard’s Appeal, 7 Pa. Superior Ct. 388.

The right of the excepting claimant at bar to such hearing as asked seems to be clearly supported by the language of Henderson, J., in American Chemical Lab. v. Wayne, etc., Co., 81 Pa. Superior Ct. 137, 139, decided under the amending Act of 1923, as follows: “The Act of May 26, 1897, P. L. 95, directs that notice of the rule . . . shall be given to the plaintiff and defendant in the execution and to the claimant and to the person found in possession of the goods and chattels. This clearly implies that the claimant should have a right to an inquiry by the court before the property claimed by him should be exposed to sale. The requirement of notice to the parties contemplates a hearing on the subject. . .

And in Gillespie v. Agnew, 22 Pa. Superior Ct. 557, it is stated that “if the facts are undisputed, and the inferences to be deduced therefrom clear and uneonflicting, the question of title becomes one of law and is to be passed upon by the court. If the facts are disputed, the parties are entitled to an issue.” And this we would' adopt as the proper legal interpretation of the words “sufficient in law,” relating to the quality of the “exceptions” mentioned in the Act of 1923. This statute in its provisions for such “exceptions” and reference to a “hearing” by the court would seem to be but declaratory of the previous practice, explained by the decisions we have above cited and quoted from.

Decree.

And now, to wit, Peb. 1, 1929, hearing upon the exceptions filed by the claimant, Morris Lumber Company, Inc., is allowed and time fixed therefor before the court on Saturday, Peb. 9, 1929, at 9 o’clock A. M., of which the prothonotary shall give notice to the claimant, plaintiff in the execution, both defendants in the same and to the sheriff, by delivering to each of them or to their attorneys of record a certified copy of this order.

From Gerritt E. Gardner, Montrose, Pa.


source: Caselaw Access Project

license: Public Domain

text:
    Morris Lumber Company, Inc., v. Harrington.
    No. 2.

      Van Scoten & Little, ior plaintiff; F. A. & E. L. Davies, for defendant.
    March 4, 1929.
   Smith, P. J.,

The above proceedings are on an interpleader, the rule for which was granted upon petition of the sheriff of this county Dec. 22, 1928, because of the claim of ownership of a certain sawmill levied upon by him Nov. 21, 1928, by virtue of an execution in which the above defendant, W. A. Harrington, is the plaintiff and George Mansfield and G. E. Morris are defendants.

Due notice of the rule having been served upon all proper parties, Jan. 2, 1929, exceptions to the rule were filed by the above plaintiff, the Morris Lumber Company, claiming ownership of the mill, and we fixed a date for hearing thereon, as we determined was required by the provisions of the amended Interpleader Act of May 2, 1923, P. L. 346, by opinion filed in these proceedings Feb. 1, 1929, and to which we refer for discussion and authority in support of our action in the premises.

Of this hearing, fixed for Feb. 9, 1929', at 9 o’clock A. M., due notice was had by all parties interested, none of whom appeared either in person or by attorney, except the claimant, the Morris Lumber Company, generally, and T. A. Doherty as attorney for W. A. Harrington, the latter only de bene esse to object to the hearing, after which he retired; for these matters of appearance and default, we refer to the notations on pages 3 and 4 of the Transcript of Evidence. Consequently, evidence was taken upon the part of the Morris Lumber Company only ex parte. Concerning this, we shall first note our rulings as to its relevancy, materiality and competency — -which were necessarily made of our own motion, as is our duty where ex parte proceedings are had. We are now of the opinion that some we then rejected should have been allowed.

The oral evidence introduced to support claimant’s title consists chiefly of the testimony of F. B. Klinetob, its president, who relates the occasion and circumstances of the alleged purchase of this mill from one Frank Major by the lumber company, through which the latter claims to have acquired title thereto; that the deal, by conversation over the telephone between this witness and Mr. Major, was finally concluded on April 13, 1927, at the office of the witness at Wyoming, Pa., in connection with a purchase and sale of timber between the same parties at the same time; that such lumber agreement was reduced to writing and signed, and a copy thereof as plaintiff’s Exhibit 2 is attached to the Transcript of Evidence, pages 23, etc.; that the purchase price, although not recited in the contract, was $13,500, which included the price of this mill in question, “the sawed lumber and all the tools.” The mill, tools, etc., are likewise not mentioned in the contract of April 13, 1927, but this oral testimony entitles it to admission in evidence as one feature of an entire transaction, partly in writing — the contract as to timber, etc. — and partly parol — inclusion of the mill — and as corroboration of the witness.

Next referring to the contract, plaintiff’s Exhibit 6, we find that while designated in the testimony as a “lease,” it is more properly a contract of hiring by the Morris Lumber Company of George Mansfield, in which the latter, for stated compensation, agrees to render certain services to the company, including the placing and operation of a sawmill on a timber tract in Dimock Township. It having been testified that this George Mansfield is the same person as one of the defendants in the execution under which the levy upon and seizure of the mill was made by the sheriff, and the mill the same as that levied upon, this contract, Exhibit 6, is made competent and material evidence in the present inquiry, and we treat it as such. His identity and that of the mill being proven, the recitals in this contract as to the compensation to be paid by him to the Morris Lumber Company for the use of the mill by him in sawing are a recognition of the lumber company’s ownership of it, and in negation of any claim of ownership thereto by him, and are some corroboration of the oral testimony of its original purchase from Major by the company, and to that extent are considered by us as evidence.

The bill of sale to the lumber company for a sawmill, Exhibit 3, which was signed by Frank Major, and witnessed by G. J. Clark, was not admissible, because, although bearing date of April 13, 1927, the same as Exhibit 2, it appears, as testified to by Mr. Clark (Exhibit 11), to have been actually executed “about the first of January of the present year” (1929), after the execution in the present proceedings exit, which therefore antedated it, and we exclude it from our consideration.

That security was given and a part payment in cash was made on the $13,500 purchase price, and that the portion so secured was afterwards paid by the lumber company to Major, is supported by the oral and documentary evidence.

In view of the affirmative uncontradicted evidence furnished on the part of the Morris Lumber Company, plaintiff, with no evidence produced contra,, the facts thus proven “are undisputed and the inferences to be deduced therefrom clear and unconflicting,” in which case the authority of Com. v. Burns, 14 Pa. Superior Ct. 248, 257, admonishes us that “the question of title becomes one of law and is to be passed upon by the court,” and it is added to the foregoing quotation, in Gillespie v. Agnew, 22 Pa. Superior Ct. 557: “If the facts are disputed, the parties are entitled to an issue,” i. e., interpleader.

The first quotation is a statement in another form of the principle that “where the plaintiff’s case is made out by undisputed evidence, it is the duty of the court to give binding instructions in his favor:” Merchants Bank v. Gardner, 31 Pa. Superior Ct. 143; Wannamaker v. Burke, 111 Pa. 423.

An issue in interpleader, such as is prayed for in the case at bar, belongs to the class of “feigned issues,” and it is the duty of the court to look into the deposition taken on the rule, and if it appears therefrom there is no fact in dispute requiring the framing of an issue, to refuse it: Wile Bros. & Co. v. Locks, 9 Pa. Superior Ct. 193.

With reference to the attitude of the sheriff, plaintiff in the execution and the defendant therein at the hearing, and the tact of cross-examination of plaintiff’s witnesses or evidence on part of the respondent or defendant at bar, the decision of Moore v. Dunn, 147 Pa. 359, is particularly forceful of citation here.

We are, therefore, forced to the conclusion that in view of the evidence produced by the plaintiff under the conditions we have referred to and fully discussed, the rule for interpleader should be discharged. Therefore,

And now, to wit, March 4, 1929, exceptions filed by the Morris Lumber Company, plaintiff, are sustained, rule for interpleader discharged, and the Sheriff of Susquehanna County is directed to surrender to said lumber company possession and custody of the sawmill levied upon by him Nov. 21, 1928, by virtue of an execution in which W. A. Harrington is plaintiff and George Mansfield and G. E. Morris are defendants (Com. v. Burns, 14 Pa. Superior Ct. 248). Exceptions noted and bill sealed for G. M. Darrow, sheriff and all parties in adverse relation to the Morris Lumber Company in these proceedings.

Prom Gerritt E. Gardner, Montrose, Pa.


author: Appel, P. J.,

text:
    Cooke’s Estate.

      F. Lyman Windolph, for accountants; H. Clay Brubaker, for exceptions.
    Jan. 10, 1929.
   Appel, P. J.,

Exception is taken to the award of $100 on account of claim of Annie Long. Her claim as presented is for $150. It is itemized and in legal character divides itself into two separate and distinct parts.

The first is an item of $50 for services performed and work done by claimant for the decedent in his lifetime. It appears from the testimony that decedent rented a room in claimant’s home, for which he agreed to pay $3 per week. This rental was paid in full, the last payment being made after decedent’s death. The contract included all the usual services required in such a case. This part of the claim, being for extra services and attention in connection with the occupancy of the room, was disallowed under the authority of Gross’s Estate, 284 Pa. 73, and other cases that might be cited.

The other part of the claim is of a different character. It is for $100, being the value of a rug, mattress, blanket and comfort alleged to have been ruined and destroyed by decedent. The testimony shows that decedent did not or could not control his physical necessities; that he was careless about his room and bed, both being befouled with excrement and tobacco juice. It clearly appears from the evidence that such was the misuse decedent made of his room and bed, that when he left to go to the hospital a few days before he died, it was found that the rug, mattress, blanket and comfort were in such vile condition, due to his habits, that they could not be used again and were, therefore, practically destroyed. Whether this was occasioned by the carelessness of decedent or was the result of his uncontrollable actions, the legal effect is the same. In either case, he or his estate would be liable for the value of the articles destroyed. This value was shown by credible witnesses. Indeed, the value of the articles is not seriously disputed, and it is not strenuously denied that the articles mentioned were rendered useless. The exceptant claims that their destruction, if they were destroyed, was incidental to a normal use of the room decedent occupied, and is, therefore, included in the contract of $3 per week above referred to. With this contention we do not agree. Ordinary use of the articles during the period of decedent’s occupancy of the room would not involve their destruction. It was their misuse, due to his filthy habits, that rendered them valueless. The $3 per week was small compensation for the use of the room and for the services performed by claimant in conjunction therewith, many of which were most disagreeable and repulsive. If, under the law, she is denied payment for these services, it is only just she should be compensated for the articles destroyed and rendered useless by decedent.

The claim for $150 was properly disallowed, but the claim for the value of the articles destroyed is valid in law.

The exceptions are dismissed and the adjudication is confirmed absolutely.

From George Boss Eshleman, Lancaster, Pa.


author: Biddle, P. J.,

text:
    E. F. Schlichter Co., Inc., v. Baum.

      Hyman Goldstein, for plaintiff.

      C. A. Shambarngh and W. H. McCrea, for garnishee.
    June 18, 1929.
   Biddle, P. J.,

Z. M. Baum filed a voluntary petition in bankruptcy on Oct. 8, 1928, and in the schedules which he filed he claimed certain items as his exemption. The present plaintiff entered judgment against Z. M. Baum on a judgment exemption note given by him in the sum of $300, and on Dec. 5, 1928, it issued an attachment execution on its judgment, and W. I. Spangler, the trustee in bankruptcy of Z. M. Baum, was summoned as garnishee. On Dec. 8, 1928, Z. M. Baum formally abandoned-his claim to the exemption in order that it might revert to the bankrupt estate ; and subsequently the bankrupt, under order of the U. S. District Court, sold the personalty which had originally been claimed as the exemption for the sum of $117.10, the proceeds of said sale being turned into the general fund of the bankrup’s estate. On Feb. 20, 1929, the present plaintiff entered a rule on William I. Spangler, trustee of Z. M. Baum, bankrupt, to answer the plaintiff’s interrogatories which had been filed, and his answer was filed on March 4, 1929, admitting the facts above set out. It nowhere appears, and it is not alleged, that the property claimed by the bankrupt under his exemption was ever formally set aside or adjudged to him by any decree of the Federal court in his bankruptcy proceeding. On April 16, 1929, the plaintiff moved for judgment against the garnishee, W. I. Spangler, trustee, in the amount of $117.10, the sum which the garnishee had stated that he had received for goods originally claimed as the bankrupt’s exemption which had been sold, and “for judgment for vague, evasive and insufficient answers to the interrogatories filed in this case.” To this rule the garnishee on April 29th filed an answer, setting out that the answers to the interrogatories theretofore filed were clear, full and complete and contained all the information relative thereto within the knowledge of the garnishee. In this form the rule for judgment comes before us.

We think that the plaintiff in this case is setting up in his rule two inconsistent, irreconcilable claims; first, a rule for judgment upon the admissions contained in the answer of the garnishee for the amount which it is averred is admitted to be due, and, next, a rule for judgment because the garnishee has not answered clearly and sufficiently. The rule for judgment for the amount admitted to be due necessarily accepts the answers as clear and sufficient to that extent; and the demand for judgment because the answers are vague, evasive and insufficient is, in effect, a specific averment that the garnishee has not set out anything sufficient in the answer either to relieve himself from liability or to establish a liability on his part to the plaintiff.

“A rule for judgment upon the admissions contained in the answers for the amount there appearing to be due is one thing, and a rule for judgment because the garnishee has not answered sufficiently is quite another, and our treatment of the two must vary accordingly:” Henwood v. American Legion of Honor, 2 Dist. R. 170; Fithian v. Brooks, 1 Phila. 260.

In our opinion, an inconsistent attitude of this sort cannot be accepted by the court; and the plaintiff should be compelled to abandon the present rule and to ask either for judgment on the answers for the amount admitted to be due or for judgment generally for the amount of its claim because the answers were vague, evasive and insufficient. If a rule in either form was before us with matters in their present shape, we should still feel compelled to discharge it. If the rule was restricted to the request for judgment for $117.10, the amount for which it is admitted that certain personal property of the bankrupt had been sold, we could not hold that under the present condition of the case there was any admission of liability on the part of the garnishee. It is quite possible that if the answers of the garnishee and the pleadings in the case showed that the amount claimed by Baum, the bankrupt, under his exemption had been definitely adjudged to him, the present plaintiff would be entitled to recover the amount for which that property had been sold. But this does not appear. It does appear that after the issuance of the attachment execution the bankrupt waived his right of exemption; and, if this was done before a final determination of his claim to the exemption in the Federal court, it would be sufficient to defeat the claim of the plaintiff here: Sutman v. Hogsett, 70 Pa. Superior Ct. 180.

Whether this is the case or not, we are not apprized; and the liability must clearly appear before we could hold that there was an admission of the garnishee that he held property that was subject to the claim of the plaintiff.

If, on the other hand, the pending rule should be treated merely as one for judgment for want of a sufficient answer to the interrogatories, we should again have to dismiss the rule. The plaintiff has not pointed out any point wherein the answers to the interrogatories are vague, evasive or insufficient either in the oral argument or in the written brief which was submitted; and even if they had succeeded in pointing out such defects, their application would have been premature because, before judgment can be entered against a garnishee for the insufficiency of his answers, he is entitled to be warned by exception so as to have an opportunity for explaining their defects: Little v. Nelson, 61 Miss. 672; Lanback v. Black, 1 W. N. C. 314; Henwood v. American Legion of Honor, 2 Dist. R. 176; Grauer v. Watson, 3 Dist. R. 641.

In dismissing the pending rule, the dismissal will be without prejudice to the right of the plaintiff to proceed hereafter if this is desired against the garnishee for such amount as the plaintiff may feel it is entitled to.

And now, June 18, 1929, the rule for judgment in this case is dismissed, without prejudice, however, to the right of the plaintiff to take further proper action looking to the same result.

From Francis B. Sellers, Carlisle, Pa.


author: Jones, J. —

text:
    Schoket v. Joyce.

      Robert Challis, for plaintiff; W. L. Pace, for defendant.
   Jones, J. —

Summons in trespass and a return by the sheriff of service upon the defendant “by handing to him personally at the court-house, in Courtroom No. 2, a true and attested copy of the writ and making known the contents to him;” petition by the defendant to set aside the service upon the ground that he was in attendance at court in pursuance of a subpoena and testified, and while in court as a witness the summons was served upon him; defendant raises a question of privilege from service of the writ under these circumstances.

The general rule is conceded to be that parties and witnesses are privileged in Pennsylvania from the service of civil process upon them while in attendance at court.

In United States v. Edme, 9 S. & R. 147, it is stated: “The clear principle is this, that protection to a witness should be at least as extensive as to a party; that when it is not mere cover to a skulking debtor, it ought to be considered liberally.” See, also, Wood v. Boyle, 177 Pa. 620, 632.

The same question has arisen in numerous eases in the several Common Pleas Courts throughout the Commonwealth and service has been set aside: Lowe v. Cowan, 24 Dist. R. 836; Loughner v. Hershey, 21 Dist. R. 971, and cases therein decided.

Plaintiff concedes that service was illegal by issuing an alias summons. The rule to set aside the service is made absolute.

Prom Prank P. Slattery, Wilkes-Barre, Pa.


author: Fronefield, P. J. —

text:
    Wolson v. Worrilow.

      Ledwwrd & Hinkson, for plaintiff; A. A. Cochrane, for defendant.
   Fronefield, P. J. —

This replevin was brought by Julius Wolson against the Treasurer of the City of Chester and against a constable to test the validity of a levy on plaintiff’s personal property by the city treasurer for the collection of taxes. The trial judge gave the jury binding instructions for the defendant. William B. Marker was the owner in 1921 and 1922 of Nos. 245 and 247 Market Street in said city. No. 247 had been rented to a Mr. Becker in 1922, who was in its possession at the time of the levy on Wolson’s property. In August, 1922, Marker sold his furniture and equipment and his business, carried on at No. 245, to Wolson and rented him the front room of No. 245 for two years and was paid rent in advance for one and one-half years. The mortgage, given prior to Wolson’s lease, on No. 245, was foreclosed in 1922 and Wolson was subsequently notified to move from the premises. Before he vacated the premises his goods in No. 245 were distrained for taxes for the years 1921 and 1922 assessed prior to Marker’s occupancy in one assessment against No. 245 and No. 247, which are separate and distinct properties, in separate possession. This replevin was then issued. Whether or not this is a proper procedure is not questioned.

The business which Wolson purchased from Marker was that of insurance, real estate and brokerage, and the property distrained for taxes was office furniture and equipment appropriate to and used in that business.

Marker, at the time of the sale and transfer of the business, furniture and equipment, delivered to Wolson, under the Sales in Bulk Act of March 28, 1905, P. L. 62, a list of his creditors, with their addresses and the respective amounts due them. The City of Chester was not on that list. These creditors were paid at the time of the transfer of the business, furniture and equipment.

It is now contended that property on No. 245, belonging to Wolson, the tenant of the premises, may not be seized by levy and distress and be sold for taxes assessed against. No. 247, which was never in the possession of Wolson.

The Act of April 3, 1804, 4 Sm. Laws, 201, provides that “every tenant who may or shall occupy or possess any lands or tenements shall be liable to pay all the taxes which during such occupancy or possession may thereon become due and payable.”

This act does not help the defendant. It makes the tenant of the property liable for the payment of the taxes assessed against the property he occupied during his occupancy or possession.

It does not make the tenant liable for the taxes on property not occupied by him nor unless the taxes are assessed during his occupancy. In the instant case, the tenant did not occupy one property assessed, nor were the taxes assessed during his possession: Henry v. Horstick, 9 Watts, 412.

• The Act of April 15, 1834, P. L. 509, in section 46, provides that “the goods and chattels of any person occupying any real estate shall be liable to distress and sale for the non-payment of any taxes assessed upon such real estate during his possession or occupancy and remaining unpaid in like manner as if they were the goods and chattels of the owner of such real estate.”

This act does not help the defendant. Under it, to make the goods and chattels liable for taxes, the taxes must be assessed on the real estate occupied by the tenant during his possession or occupancy. It does not make the tenant liable for the taxes on property not occupied by him nor unless the taxes are assessed during his occupancy: Smeich v. York County, 68 Pa. 439.

The Act of May 23, 1889, P. L. 277, article XV; section 8, provides that “the said collectors shall severally have and exercise all the powers vested by law in the collectors of State and county taxes and shall also be authorized, after five days’ notice, to seize any property on the premises assessed belonging to tenants or others, without regard to the date of the assessment of the tax, and to levy upon any personal property of the delinquent that may be found within the county for the collection of said tax.”

This means that the collectors may seize any property belonging to tenants or others on the assessed premises, whether the owner thereof occupies the premises or not and whether it was or was not on the assessed premises at the time of the assessment. It does not provide that property not of the delinquent taxpayer on one of the assessed premises is liable for the tax on another assessed premises. This is made plain by the act giving the collector the right to levy on the delinquent’s property off the assessed premises.

The Act of May 16, 1901, P. L. 248, section 31, provides that “collectors shall severally have and exercise all the powers vested by law in the collection of State and county taxes and shall also be authorized, after five days’ notice, to seize, by levy and distress, any property on the premises assessed belonging to tenants or others without regard to the date of the assessment of the tax and to sell the same, giving ten days’ public notice of such sale by written or printed advertisement, and to levy upon any personal property of the delinquent that may be found within the county for the collection of said tax.”

This means that the collectors may seize and sell any property on the assessed premises, whether its owner occupies the property or not, and whether it was or was not on the assessed premises at the time of the assessment or levy, but it does not provide that property not of the delinquent on one of the assessed premises is liable for the tax on another assessed premises. This is emphasized by the authority to levy on the delinquent’s property not on the assessed premises.

The Act of June 20, 1901, P. L. 578, section 5, provides that the “treasurer, as the collector of the several taxes, and his deputies, shall have and exercise all the powers vested by law in the several collectors of State and county taxes and in all the remedies for the collection thereof; and shall have additional power and authority, after'five days’ notice, to seize by levy and distress any property on the premises assessed belonging to tenants, purchasers or others, without regard to the date of assessment or levy of the tax, and to sell the same, giving ten days’ public notice of such sale by written or printed advertisement; and to levy upon any personal property of the delinquent that may be found within the county for the collection of said taxes. . . .”

This means that the treasurer may seize by levy and distress and sell any property on the assessed premises, whether its owner occupies the premises or not and whether it was or was not on the premises at the time of the assessment. It does not provide that property not of the delinquent on one of the assessed premises is liable for the tax on another assessed premises. This is made plain by the act giving the treasurer the right to levy on the delinquent’s property not on the assessed premises.

It is argued by the defendant that, inasmuch as the two premises are assessed together, the property being on one of the premises was on ■ the premises assessed and is, therefore, liable for the tax due on both. The answer to that is that the property was on one of the assessed premises, but not on the other, and, hence, is not liable for taxes due on the other. Assessing premises together does not make them one, and property seized must be on the premises assessed.

In McGregor v. Montgomery, 4 Pa. 237, it was held that property of a tenant in the possession of premises is liable to distress for taxes assessed against the premises during the tenant’s occupancy, even though the property is seized when not on the premises. This does not help the defendant, because the plaintiff was not in the occupancy of, nor was his property on, No. 247.

Neither does Popp v. Eamigh, 54 Pa. Superior Ct. 263, help the defendant, which holds that under the Act of 1834 property of a person occupying the premises assessed may be seized for the taxes, even though it was not on the premises at the time of' the assessment. The property here was never on No. 247, nor was that premises ever occupied by the plaintiff.

I know of no act nor decision which justifies the seizure and sale of personal property belonging to a tenant and being off the premises assessed, unless its owner was occupying the premises at the assessment.

The plaintiff contends that the Sales in Bulk Act applies to the sale of a real estate and insurance business with a sale of office furniture and fixtures.

Horses, carts, hoisting machines, etc., used in business are not merchandise nor fixtures within the meaning of the Sales in Bulk Act of 1905: Northrop v. Finn Con. Co., 260 Pa. 15.

Under the repealed Act of March 28, 1905, P. L. 62, President Judge Rice said: “The act speaks of a ‘stock of merchandise and fixtures and of a sale of them otherwise than in the ordinary course of trade and in the regular and usual prosecution of the seller’s business. When read together and with the context, these clauses imply, we think, not simply that the goods were once merchandise, that is, commodities traded in by merchants, but that at the time of the sale they still bore the character of a stock of merchandise, that is, goods and merchandise employed in trade, whieh in the ordinary course of trade and in the regular and usual prosecution of the seller’s business would be sold or bartered otherwise than by a sale in bulk: Wilson v. Edwards, 32 Pa. Superior Ct. 295.”

The Act of May 23, 1919, P. L. 262, section 5, states that a sale in bulk in contemplation of this act “shall be deemed to be any sale or transfer of the whole or large part of any stock of goods, wares or merchandise of any kind, or fixtures, or of goods, wares or merchandise of any kind and fixtures . . . than in the ordinary course of business or trade and in the regular and usual prosecution of the seller’s business.”

This language is practically the same as that in the Act of 1905, and it is fair to assume that the legislature intended it to have the same construction: Com. v. Bailey, 20 Pa. Superior Ct. 210. It follows that the act does not apply.

It is further contended that notice was not given to the plaintiff as provided in the act. The Act of June 20, 1901, P. L. 578, provides that the treasurer of the city shall have “power and authority, after five days’ notice, to seize by levy and distress any property on the premises assessed belonging to tenants, purchasers or others” and to sell the same, etc.

The evidence is that the city treasurer said to the plaintiff that “it will be necessary for me to take action against goods on the premises.” He testified he told him that the taxes were unpaid and explained the situation to him. He also testified he' had learned that the rent had been paid in advance and, therefore, he could do nothing there, so “I told him, under those conditions, it would be necessary to go further and make a levy on the goods.” The plaintiff testified that he was told by the treasurer that taxes were due on the property occupied by him and that he had the right to collect them from him and that the levy was the first formal demand of him for the tax.

Even though the notice which the treasurer said he gave the plaintiff be sufficient, whether or not it was so given is a fact to be determined by the jury. The notice which the plaintiff said he received is clearly not a notice that the treasurer would seize his property by levy and distress.

And now, to wit, Oct. 5, 1928, the plaintiff’s motion for a new trial is granted, and his motion for judgment non obstante veredicto is refused.

From William R. Toal, Media, Ra.


author: Mitchell, J., Trimble, J.,

text:
    Wood’s Estate.

      O. P. Robertson and F. C. McCutcheon, for petitioner.

      Charles E. Munn, for respondent.
    Nov. 26, 1928.
   Mitchell, J.,

Samuel L. Wood died July 8, 1927, intestate, leaving to survive him his wife, Lela Blanche Wood, but no natural-born child or descendants. He did leave Mary Anna Glazier, who had been legally adopted by the decedent and his deceased wife, Sarah E. Wood. The decree of adoption was made by the Court of Common Pleas of Allegheny County on Sept. 15,1883, and Sarah E. Wood died in the year 1900. Lela Blanche Wood, the second wife, and widow of decedent, presents her petition under the Intestate Act of June 7, 1917, P. L. 429, praying that $5000 be set aside for her and that appraisers be appointed for that purpose. Mary Anna Glazier, the adopted daughter, has filed an answer to the petition, denying the right of the widow to the claim for $5000, on the ground that as the adopted daughter she is in the same class as issue of decedent and, therefore, the petition should be dismissed.

Section 2 (a) of the Intestate Act of 1917 reads as follows: “Where such intestate shall leave a spouse surviving and other kindred, but no issue, the surviving spouse shall be entitled to the real or personal estate, or both, to the aggregate value of $5000, in addition, in the case of a widow, to the widow’s exemption as allowed by law; and if such estate shall exceed in value the sum of $5000, the surviving spouse shall be entitled to the sum of $5000 absolutely, to be chosen by him or her from real or personal estate, or both, and, in addition thereto, shall be entitled to one-half part of the remaining real and personal estate: Provided, that the provisions of this clause as to said $5000 in value shall apply only to cases of actual intestacy of husband or wife, entire or partial, and not to cases where the surviving spouse shall elect to take against the will of the deceased spouse.”

Under the common law, adopted children were not known; their status has been established by the statutes of the different states. The meaning of the word “issue” is children or descendants of the decedent, and unless the status has been changed by enactment, an adopted child cannot be considered as issue. The intention of the section of the Intestate Act above quoted is to allow the surviving spouse the $5000 only if there is no person who as issue of the decedent would be entitled to share in his estate.

Section 16 of this act reads as follows:

“(a) Any minor or adult person adopted according to law and the adopting parent or parents shall, respectively, inherit and take by devolution from and through each other personal estate as next of kin and real estate as heirs, under the provisions of this act, as fully as if the person adopted had been born a lawful child of the adopting parent or parents.
“(b) The person adopted shall, for all purposes of inheritance and taking by devolution, be a member of the family of the adopting parent or parents. The adoptive relatives of the person adopted shall be entitled to inherit and take from and through such person to the exclusion of his or her natural parents, grandparents and collateral relatives, but the surviving spouse of such adopted person and the children and descendants of such adopted person shall have all his, her and their respective rights under this act. Adopted persons shall not be entitled to inherit or take from or through their natural parents, grandparents or collateral relatives, but each adopted person shall have all his or her rights under this act in the estates of his or her spouse, children and descendants.”

It thus appears the adopted person inherits and takes by devolution from the adopting parent personal estate as next of kin and real estate as heir as fully as if he or she had been bom a lawful child of the adopting parent; and the adopted one for all purposes of inheritance shall be a member of the family of the adopting parents.

In order to find the meaning of the act, all sections must be considered. It is evident the act was meant to be comprehensive and inclusive, for section 28 reads: “This act of assembly is intended as an entire and complete system for the descent and distribution of the estates, real and personal, of persons dying intestate.”

In section 7, the real and personal estate not theretofore given to the surviving spouse shall descend to and be distributed among the issue of the intestate according to the rules set forth in the section. The word “issue” is used in section 2 and in section 7. Section 16 endeavors to wipe out all distinction in inheritance between natural born and adopted children and applies to section 7. The note of the commissioners who codified and revised the law of decedents’ estates informs us that section 16 is intended to cover the entire subject of inheritance by and from adopted persons. If section 16 applies to section 7, then it applies also to section 2, as the word “issue” is used in both sections 2 and 7. If this adopted child is to participate in the estate as fully as if she had been born a lawful child, her estate cannot be reduced by allowing the preference of $5000 to the widow.

We have found no case in Pennsylvania where the question before us has been decided. The courts in the various states have differed in their opinions. As is said in the note to the case of Morse v. Osborne, 30 L. R. A. 914, a decided majority of the cases hold an adopted child to be within the meaning of the words “children,” “issue,” etc., as used in the statutes of descent and distribution.

We have been reminded of Boyd’s Estate, 270 Pa. 504. This case has nothing to do with the present case. There the testator made his will giving his entire estate to his wife. Later he adopted two minor children, and the question arose whether these adoptions operated as a revocation of the will under section 21 of the Wills Act of June 7, 1917, P. L. 403. The Supreme Court held the act applied to children “bom” to the testator and the adoption did not work a revocation. The case is not analogous to the case we are now considering, nor was the right of an adopted child under section 16 of the Intestate Act considered. The effect of Boyd’s decision has been changed by the Act of May 20, 1921, P. L. 937.

In Johnson’s Appeal, 88 Pa. 346, where the testatrix had left her estate in trust for the benefit of her son during his life, and thereafter to such person or persons, and for such estate or estates, and in such proportions as would, by the intestate laws of this Commonwealth, be entitled to the same if he had died intestate, seized thereof in fee, the Supreme Court held the adopted child of the life-tenant on the latter’s death took the estate. The decree of adoption provided “that such child shall assume the name of the adopting parent and have all the rights of a child and heir of such adopting parent.” The adopted child was thereby both child and heir of her father, the life-tenant, so far as she can be made such by legislative enactment. This was affirmed in Rowan’s Estate, 132 Pa. 299.

The case of Yates’s Estate, 281 Pa. 178, was where an adopted child claimed to take under a testamentary trust which gave the adopting parent the income for life with remainder to such child or children as the life-tenant may leave surviving. It was held the “adopted” child was not an “actual” child and, therefore, did not take. Mr. Justice Simpson refers to section 16 (b) of the Wills Act, under which the claimant would have taken had the testator not died before the act was passed.

Puterbaugh’s Estate, 261 Pa. 235, is not in point. In that case the child was not adopted by the son of the testator until after the death of testator, who had no knowledge that an adoption was contemplated. Consequently, an intention that an adopted child should inherit his estate could not be imputed to the testator. We are directed to Schafer v. Eneu, 54 Pa. 304. Of course, the right of inheritance given to an adopted child does not make him a child in fact, but the legislature may provide he shall take as a natural bom child in the matter of inheritance.

In Russell’s Estate, 284 Pa. 164, the adopted son of a legatee — the legatee having predeceased the testator — claimed the legacy did not lapse but was payable to him. This claim being under a will, the court held the Act of May 28, 1915, P. L. 580, and section 16 (b) of the Intestate Act applied only to property passing under the intestate laws.

The Supreme Court held in Webb’s Estate, 250 Pa. 179, that under the Act of May 9, 1889, P. L. 1691, providing a person adopted “shall have all the rights of a child and heir of such adopting parent,” it was the intention of the legislature to give the adopted person not only the status of a child but also of an heir, which would entitle him to succeed to the estate of the adopting parent. The language of section 16 (a,) of the Intestate Act is stronger than that of the Act of May 9, 1889.

In Newman’s Estate, 75 Calif. 213, it was held the word “issue” in the statute which provides that “if a decedent leaves no surviving husband or wife, but leaves issue, the whole estate goes to such issue,” includes an adopted child. “If the adopted child is by virtue of status to be regarded and treated in all respects as the child of the person adopting, and is to have all the rights and be subject to all the duties of the legal relation of parent and child, the right to succeed to the estate of the deceased parent must be included.”

The case of Buckley v. Frasier, 153 Mass. 525, is very similar to the instant case as to the facts and the statute applicable. The decedent and his wife, who never had issue born to them, adopted a child. After the death of the decedent his widow brought her petition asking that the real estate left by the decedent, being less than $5000, be assigned to her on the ground that her husband left no issue living. “Section 8 of the Pub. Sts., eh. 148, provides that the term ‘child’ or its equivalent in a grant, trust settlement, entail, devise or bequest shall be held to include a child adopted by the settlor, grantor or testator, unless the contrary plainly appears by the terms of- the instrument.” The court held: “The general intent of the statute (Pub. Sts., eh. 148) is to place the adopted child in relation to either of his adopting parents, so far as their property is concerned, in the same position that he would be if their natural child. No stronger expression could be used than that which permits him to take the share of the property of the adopting parent ‘that he would have taken if born to such parent in lawful wedlock.’ That the adopted child should be deprived of that which he is given so explicitly is not readily supposable. There is less difficulty in holding that the word ‘issue’ is used in the sense of child or children, and as thus construed it includes adopted children. If construed otherwise, the adopted child no longer occupies the relation of a child bom in lawful wedlock to either of his or her adopting parents.”

It is interesting to note that the act relating to adoption, approved April 4, 1925, P. L. 127, provides the decree shall direct that the person proposed to be adopted shall have all the rights of a child and heir of such adopting parent or parents and be subject to the duties of such child. The Act of June 20, 1919, P. L. 521, and the amendment of May 4, 1921, P. L. 341, for the purpose of taxation, no longer classifies adopted children as collaterals but as lineals.

To hold that this adopted child is not to take as issue is to disregard the evident purpose of the Intestate Act and to nullify the intention of the adopting parent. It can be readily seen that in a small estate the adopted child might be deprived of everything if the prayer of the widow’s petition be granted. Usually, “issue” means children and descendants. But when we read together the sections of the Intestate Act, we find no indication to so limit the inheritors of a decedent, but rather to bring adopted children into the class mentioned in the 2nd and 7th sections as “issue.” This act seems to intend to provide inheritable quality in the adopted one. “Issue” and “children” have a technical meaning and import, and no legislation can transmute an adopted child into a natural-born child. There is, however, no reason why an act of assembly may not stipulate that an adopted child shall have the same right of inheritance as the issue or child of the adoptive parents’ blood.

A reading of sections 15 and 16 of the Wills Act persuades us that the commissioners who codified the laws relative to inheritance had in mind a synthetic treatment of the subject so as to relate and harmonize the Wills Act and the Intestate Act. In order to give effect to section 16, we must consider “issue” in section 15 and “child” or “children” in section 16 as meaning the same. Unless the adopted child can come within the meaning of “issue” as used in section 15 no effect can be given to section 16.

Having in mind the provisions of the two acts and reading together sections 2, 7 and 16 of the Intestate Act, we conclude that adopted children come within the classification of “issue” and “children” as used therein.

The prayer of the petition is refused and the petition will be dismissed.

Trimble, J.,

concurring. — The decedent died intestate and left surviving him his widow, Lela Blanche Wood, and no issue. In his lifetime he and his wife became the adoptive parents of Mary Ann Glazier by deeree of court. The widow, claiming $5000 from his estate under the 2nd section of the Intestate Act of 1917, as amended by the Act of July 11, 1917, P. L. 755, will be sustained unless the 16th section of the Intestate Act substitutes adopted children for existing “issue,” the supposed sine qua non of the 2nd section.

The State, in selecting the persons who may enjoy shares in an intestate’s estate, has set forth a table of distribution and descent, the Intestate Act of 1917. .This shows not only issue, descendants, heirs and kindred, that is, lineals and collaterals, but also parents in the ascending line, the spouse and adopted children. The State may include or exclude whomsoever it pleases, and in the exercise of this sovereign power it has drawn from those who may or may not be in the catena of relationship the spouse and adopted children. The latter, in the 16th section, clauses (a) and (b) of the table, are invested with the rights of kin and heirs; they to take by devolution from and through each other personal estate as next of kin and real estate as heirs as fully as if born lawful children of the adopting parents. It not only invests them with this right to distribution, but it excludes them from the line of succession to all their cognates except their own children and descendants. Adoption makes them a new source for inheritance and takes away from them the rights which their former ties by blood gave them. It is not declared that adopted children are issue or kin or heirs, nor is that to be inferred from any loose phrasing. All that can be inferred is that the adoption of children works an exchange of family ties and makes the adopted children substitutes for children, issue, kindred and descendants and gives them rights as such.

The argument of counsel for the petitioner is that unless decedent died leaving issue and other kindred, the widow must necessarily be allowed the portion given to her in the 2nd section of the Intestate Act, to wit, $5000, because adopted children are not issue. If that is true, then it must certainly be true that if there were adopted children and no known heirs or kindred of the decedent, she would be entitled to the whole of the real and personal estate under the 17th section of the act, which provides in this way for the spouse when she survives and there is a default of known heirs or kindred. The adopted person is invested with the right to take as if he had been born a lawful child. If the adopted child is to be barred under section 2 because she is not issue of the adoptive parents, then why not under section 17 because she is not actually an heir or of the kindred? If she cannot prevent the spouse from taking the $5000 when there is no issue, how can she prevent her from taking the whole estate when there are no heirs or kindred? Prevention in one case ought to invite consistency for the other, which would be, that because the respondent is not issue, therefore neither is she heir nor kindred, and the bestowal of rights in section 16 (a) and (b) is a nullity, at least in .connection with sections 2 and 17. Now, of course, such reasoning shows the absurdity of allowing the petitioner to proceed. Section 16 of the Intestate Act was put there for a purpose, a permissible one. It substitutes a class of distributees who may or may not be of the blood of the ancestor, but are members of his family by his election and the act of the law and take as distributees. The fundamental reason for allowing this substitution is, perhaps, the same as that which allowed the widow a common law dower or the husband his curtesy and now a share varying with the rights of kindred, heirs and the adopted.

“It shall be lawful for any. adult citizen of this Commonwealth, residing therein, desirous of adopting either a minor or an adult as his or her heir, to present his petition, and the court or judge shall make a decree directing that the person shall have all the rights of a child and heir of such adopting parent or parents:” Act of April 4, 1925, P. L. 127. When this last óf many expressions of the legislature is read in connection with the Intestate Act of 1917, as amended, it must be concluded that an adopted person has been substituted for issue, for descendants and for kindred. If he is not, words have ensnared the legislature to make futile interrelated adoption laws and the stroke of the judicial axe will go deep into rights given under the Fiduciaries Act of June 7, 1917, P. L. 447, to children.

The petition must be dismissed.

Prom William J. Aiken, Pittsburgh, Pa.


author: Patterson, J.,

text:
    Stockwell v. McDowell.

      Lawrence B. Cook, for plaintiff; Dickie, Kier & MeCamey, for defendant.
    Jan. 22, 1929.
   Patterson, J.,

This is a motion to take off a compulsory non-suit. The five reasons assigned resolve themselves into one cogent proposition, namely, the refusal of the trial judge to admit certain alleged self-disserving statements of defendant.

Plaintiff was injured by an automobile owned by defendant. The evidence offered by plaintiff is sufficient to establish negligence on the part of the driver without any contributory negligence. Defendant was not present at the scene of the accident. The driver was defendant’s son, who has since disappeared and was not available at the trial. There were two or three other persons in the car. The testimony as to their identity and number is conflicting; one witness for plaintiff says there were three ladies in addition to the driver; another says, “I noticed three in there, one lady I saw and I think it was a little child.”

The refusal of the trial judge to admit alleged declarations by defendant is the sole question involved, because with the declarations proposed to be proved there would be sufficient evidence to submit to the jury.

The questions propounded at the trial to plaintiff and his wife and a certain Mrs. Jolieffe, testifying for plaintiff, indicated the proof by which liability of defendant was to be established. It consisted of two factors: one, that defendant stated, while ill in the Canonsburg Hospital, that she had sent some friends who were visiting her home in her car with her son the day or evening of the accident; second, that defendant also stated that the friends who were visiting her were in the car at the time of the accident. By this proof, plaintiff sought to show that defendant’s son was using the car at the time of the accident at defendant’s direction and in or about the affairs of defendant. These statements were alleged to have been made under somewhat peculiar circumstances. It appears, from the testimony, that the instant case is the second suit by the same plaintiff against this defendant. The first one went to trial on March 25, 1927. What the result was does net appear in this record, and three days after that trial plaintiff and his wife went to visit defendant, who was ill at the hospital at Canonsburg, Pennsylvania, and it was then that she is said to have made the admissions by which she is supposed to have, at least inferentially, expressed her liability. Then this action was brought.

The witnesses were permitted to testify that the defendant stated that she had sent her son home with some friends the day or evening of the accident, but the trial judge was of the opinion that this was not sufficient to permit an inference against the defendant without some additional testimony to show that the son was so engaged at the time of the accident. The testimony that defendant had said her visitors were in the car at the time of the accident (which, taken in connection with the other declaration, would have sufficed to send the case to the jury) was rejected because it was obviously predicated upon mere hearsay, inasmuch as defendant was never at the scene of the accident.

That admissions against interest are always competent against the parties to litigation is an evidential principle beyond need of discussion: Shirley v. Shirley, 59 Pa. 267, 275; Wolf v. Studebaker, 65 Pa. 459; and there is authority for the dictum that the only question of competency is whether or not the admission is realty that of a party in interest: Bowen v. De Lattre, 6 Wharton, 429, 432. But we have also the stated principle that such evidence is property restricted to admissions of material facts within the knowledge of the party making the admission and cannot safety be extended to his declaration of the admission of others: Quinlan v. Davis, 6 Wharton, 168. In the 16th Edition of Greenleaf on Evidence, page 233, § 148, the rule is stated as follows: “The ground upon which this evidence is received is the extreme improbability of its falsehood. The regard which men usually pay to their own interest is deemed a sufficient security, and such that the declarations were not made under any mistake of fact or want of information on the part of the declarant, if he had the requisite means of knowledge. . . .”

We believe the sound and reasonable statement of the rule is that admissions against interest as to material facts are always competent as against parties to the suit, when such facts are or could be within the knowledge of the declarant.

In the instant case, it is entirety obvious that any admission by this defendant as to who or how many passengers were in the car at the time of the accident must be predicated upon what she was told by her son after the accident. The admission attributed to defendant, then, is not her admission, but only an admission of her son’s declaration. She would be incompetent to testify in her own behalf as to what her son may have told her. Is it reasonable, then, that such testimony may be invoked against her from the lips of others?

Recapitulating, we have in evidence the declaration by defendant that she had sent her son that day or evening with her car to drive her visitors to their home, but that he was so engaged when the accident happened nowhere appears. It would suffice if there were competent evidence to prove that the persons in the automobile when the accident happened were the same that he had been directed to convey to their home, but the admission of defendant through which this essential additional fact might be established was held incompetent. We are, therefore, of opinion that the non-suit was proper.

Prom William J. Aiken, Pittsburgh, Pa.


author: Knight, J.,

text:
    Lower Merion Township v. Vila et ux.

      Parker S. Williams, for plaintiff; J. Harry Wagner, for defendant.
    Dec. 10, 1928.
   Knight, J.,

The plaintiff township filed a municipal lien as of the above term and number. The defendants obtained a rule to strike off the lien, and on June 25, 1928, we filed an opinion sustaining the contentions of the defendants and made the following order:

“And now, June 25, 1928, the plaintiff, Township of Lower Merion, is granted ninety days from the date hereof within which to petition the court for leave to amend the claim in the particulars mentioned in the above opinion. If such petition is presented within the said period, then this present rule shall remain open pending the disposition of the rule to amend, otherwise the present rule will be made absolute.”

On Sept. 19, 1928, the township presented its petition, praying leave to amend its lien, on which we granted a rule to show cause why this leave should not be granted.

To this latter petition the defendants have filed an answer, denying the right of the defendants to amend: (1) Because the affidavit to the petition to amend is not sufficient; (2) because the application to amend was not made within six months after the completion of the work.

The second reason is without merit and .was not pressed at the argument nor in the paper-book filed by counsel for the defendants.

Section 84 of the Act of May 16, 1928, P. L. 207, provides that the pleadings in municipal claim cases may be amended from time to time “by leave of court upon petition for that purpose, under oath or affirmation, setting forth the amendment desired, that the averments therein contained are true in fact, and that by mistake they were omitted from, or wrongfully stated in, the particulars as to which the amendment is desired.”

The affidavit to the original petition to amend was made by Parker S. Williams, solicitor for the township, who swore that the facts in the petition, so far as made of his own knowledge, were true, and so far as made upon information derived from others, he believed them to be true.

On Oct. 29, 1928, the day when the case was argued, the township filed an amended petition, changing the original only by substituting an affidavit made by the vice-president of the Board of Commissioners of Lower Merion Township, which affidavit is in the same form as that of the original petition, except that it also contains the words “and expects to be able to prove all of such facts upon the trial of the case.”

The defendants contend that both these affidavits are insufficient because they do not contain the positive declaration that the averments of the petition are “true in fact.”

The affiant in the last petition is an officer of the plaintiff township; he swears that the averments within his own knowledge are true and those made upon the information of others he believes to be true and expects to be able to prove. We are of the opinion that this affidavit is sufficient to meet the requirements of the statute.

The statutes of amendment are to be liberally construed in aid of the effective administrative of justice: Kaufmann & Baer Co. v. Landau, 93 Pa. Superior Ct. 457.

Here we have as a party Lower Merion Township, a large, populous and wealthy municipal corporation, employing many servants and engaged in numerous activities incident to the public business. To require an executive officer of such a corporation to have personal knowledge of all minute details of a sewer job is unreasonable, and the law does not demand it.

The act requires that the petition set forth that the averments are true in fact, and we are of the opinion that the affidavit of an officer of the plaintiff that those averments within his own knowledge are true and those made upon the information of others he believes to be true and expects to be able to prove complies with the requirements of the statute.

The alternative suggested by counsel for the defendants is that the plaintiff attach the affidavits of those who have personal knowledge of the facts. Reduced to its logical conclusion, this would mean that the plaintiff would have to attach to its petition an affidavit from every foreman, every truck driver and perhaps every laborer who worked on the job, in addition to that of the bookkeepers who kept the accounts. Such a requirement would be unjust, unreasonable and absurd.

No case has been called to our attention, nor have we been able to find any, in which the requirements of section 34 of the Act of 1923, swpra, as to the affidavit, have received judicial interpretation.

The claim and petition to amend same are somewhat analogous to the statement of claim under our Practice Act, and it has been held that an affidavit by an officer of a corporation that the facts set forth in the statement of claim are true to the best of his knowledge and belief, coupled with a declaration of deponent’s expectation of being able to prove them at trial, is sufficient: Belmar Corp. v. Kennedy, 8 Northumb. Repr. 262; Dayhoff v. Masland, 29 Dist. R. 393.

This has also been the rule in affidavits of defense: Newbold v. Pennock, 154 Pa. 591.

And now, Dec. 10, 1928, the rule to show cause why the claim should not be amended is made absolute and the amendments are allowed.

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


author: Martin, P. J.,

text:
    Armstrong v. Germantown Trust Company et al.

      Bell, Trinkle, Truscott & Bell, for plaintiff; H. II. Myers, Jr., for defendants.
    July 30, 1929.
   Martin, P. J.,

A bill in equity was filed, praying for an accounting and retransfer of the proceeds of building and loan association shares transferred by complainant to the Pelham Trust Company, now the Germantown Trust Company, in trust for some of complainant’s children.

The bill avers that complainant is the mother of four children, Margaret Marie Armstrong, born in 1916; Robert John Armstrong, born in 1918; Rachel Janet Armstrong, born in 1924, and Gertrude Armstrong, born in 1926, all of whom are living and residing with their mother; that the Pelham Trust Company, now the Germantown Trust Company, was named trustee under a deed of trust executed by complainant on Sept. 12, 1923, in which she assigned certificate No. 45053, for twenty shares of Class “C” (insured) stock of the Mutual Guarantee Building and Loan Association, to the Pelham Trust Company in trust; that these shares have matured, and the proceeds, with interest, amount to approximately $2000; that the transfer was in trust to hold the shares or proceeds for complainant’s two children, Margaret Marie Armstrong and Robert John Armstrong, and any subsequent issue born prior to maturity of the stock; that this stock constituted a substantial part of complainant’s property and estate; that the deed of trust was purely voluntary and without consideration; that complainant was, and now is, sui juris, fully capable of managing and controlling her own estate; that there was no reason, desire or motive for making the trust irrevocable; that complainant, prior to the execution of the deed, consulted an officer of the Pelham Trust Company and stated to him that because of her ill-health and other conditions she desired, in the event of her death, that the building and loan association stock should be equally divided between her two living children and any child born prior to the maturity of the stock, and informed him that it was her intention and desire to be able to obtain the principal and interest of the stock at any time, and that it was not her intention or desire to create a trust which she would not be able to revoke; and upon the faith of assurances by the officers of the trust company, and understanding that the deed was in conformity with her intention, she executed it; that she was unused to legal terms and phraseology and did not know, and was not advised, that to be revocable the deed should contain a power of revocation; that at the date of the maturity of the stock, on Oct. 8, 1926, complainant had three children living, Margaret Marie Armstrong, Robert John Armstrong and Rachel Janet Armstrong, who are the sole beneficiaries under the terms of the deed of trust, but subsequently to the maturity of the stock, on Nov. 28, 1926, another child, Gertrude Armstrong, was born to complainant, and is not entitled to participate in the estate under the terms of the deed of trust; that on Jan. 17, 1929, complainant executed and acknowledged a deed formally revoking and making void the deed of trust, and gave notice thereof to the trustee, and demanded the papers and securities comprising the trust, which demand was refused by the trustee; that at the time of the execution of the deed of trust complainant was in ill-health and pregnant, and had been advised that delivery of the child would probably cause her death; and the deed of trust was executed to direct the disposition of her property in the event of her death at the birth of the child.

The guardian ad litem of the minors, Margaret Marie Armstrong, Robert John Armstrong and Rachel Janet Armstrong, filed an answer, denying knowledge of the truth and accuracy of the averments of the bill, and demanding proof thereof.

The Germantown Trust Company filed an answer, admitting many of the averments of the bill, but denying that complainant ever informed the officers of the trust company that it was her desire and intention to be able to obtain the principal and interest of the stock at any time she saw fit, or that she advised them of her '“intention and desire not to create a trust which she would not be able to revoke at any time.”

The question raised by the pleadings is whether complainant executed the deed of trust under a mistake of fact, or of mixed law and fact, through not being informed that the deed as drawn was irrevocable, and that its effect would be to bar from participation in the trust fund any child born after the building association shares of stock matured and to prevent the settlor from revoking the trust if she survived the impending ordeal of childbirth.

Findings of fact.

1. The complainant, on Sept. 12, 1923, executed a deed of trust to the Pelham Trust Company, now the Germantown Trust Company, for twenty shares of Class “C” (insured) stock of the Mutual Guarantee Building and Loan Association, for the benefit of complainant’s two children, Margaret Marie Armstrong and Robert John Armstrong, and any subsequent child that might be born to her prior to the maturity of the shares of stock.

2. At the time of the execution of the deed, complainant was in ill-health and pregnant. A child, Rachel Janet Armstrong, was born in March, 1924. The shares of stock matured on Oct. 8, 1926. Another child, Gertrude Armstrong, was born on Sept. 28, 1927.

3. At the time she executed the deed of trust, complainant stated to the officers of the trust company that she was in ill-health and desired, in the event of her death, the stock to be equally divided among her two children then living, and any child born prior to the maturity of the stock.

4. The deed of trust was prepared by an officer of the building and loan association, under direction of the officers of the trust company. No one informed complainant of the effect of executing the deed without a power of revocation, or that she could insert a power of revocation in the deed.

5. No money consideration passed at the time of the execution of the deed, which was purely voluntary. Complainant continued to make payments on the shares of stock until the maturity of the shares, except for the last two months.

6. The complainant has formally and informally attempted to revoke the trust.

Discussion.

Complainant by her declaration of trust placed herself in the position of disinheriting her last born child. The deed of trust embraced substantially all of the estate of the settlor. There was no discussion or thought of the effect of the absence of a power to revoke. The deed of trust was made while the settlor was pregnant and in ill-health, expecting the possibility of death at the coming birth of a child, and it was her desire to have her little estate go to her children who might be living at the time of the maturity of the building association shares.

This case differs from those in which the primary cause for the execution of a trust is the protection of the settlor by a reservation of a life estate and a subsequent disposition to persons named by the settlor, or in default of appointment, to the next of kin. The primary cause for creating the trust in this case was to protect the settlor’s children in the event of her death. While it is not essential to the validity of a deed of trust that the settlor should be informed of the advisability of inserting a power of revocation, and the effect of the absence of such power, the failure of counsel to advise upon the subject is prima facie evidence of mistake, in the absence of a certain intent to make the trust irrevocable; and where the purpose of the settlement no longer exists, and the present effect of the deed indicates that the settlor could not have deliberately intended to execute it without a power of revocation, the trust will be set aside as having been executed under a mistake: Russell’s Appeal, 75 Pa. 269.

This principle has been followed in numerous cases: Rick’s Appeal, 105 Pa. 528; Miskey’s Appeal, 107 Pa. 611; Chestnut Street National Bank v. Fidelity Ins. Co., 186 Pa. 333; and Potter v. Fidelity Ins., &c., Co., 199 Pa. 360.

The evidence is not convincing that complainant, prior to the execution of the deed, told the officers of the trust company she wished to reserve the power to repossess herself of her property at any time, or that she desired the power to revoke the trust in the event of not dying. This appears to be an afterthought on her part. It is admitted that there was a suggestion of her ill-health and the expectation that she might die, when her child should be born, shortly after the deed was executed. The contingency having passed and the fact that an after-born child is not included as a beneficiary under the trust, are circumstances to support the conclusion that the settlor did not intend to execute an irrevocable deed of trust.

Conclusions of law.

1. The complainant executed the deed of trust on Sept. 12, 1923, under a mistake of fact.

2. The failure to insert a power of revocation in the deed of trust was improvident.

3. The evidence does not establish a deliberate and clear intention upon the part of the settlor to execute an irrevocable deed of trust.

4. The deed of trust should be canceled, and the defendant, the German-town Trust Company, should account to complainant for the proceeds of the trust estate.

5. The costs of this proceeding, including the cost of accounting, are directed to be paid out of the trust estate.

Of the thirty-four requests for findings of fact submitted by complainant, the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 14th, 15th, 17th, 18th, 19th, 20th, 21st, 22nd, 23rd, 24th, 25th, 26th, 27th, 28th, 29th, 30th, 33rd and 34th are affirmed; but the 34th is affirmed with the qualification that the last two months’ dues upon the building association shares were not paid by complainant.

The 10th, 11th, 12th, 13th, 16th, 31st and 32nd requests for findings of fact are refused.

Of the twenty-seven requests for conclusions of law submitted on behalf of complainant, the 1st, 2nd, 3rd, 4th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 15th, 16th, 19th, 20th, 21st, 22nd, 23rd, 24th, 25th and 27th are affirmed.

The 5th, 14th, 17th, 18th and 26th requests for conclusions of law are refused. The 26th is refused for the reason that the evidence to support it was rejected, and was not essential to a determination of the case.

It is ordered, adjudged and decreed as follows:

1. The defendant, Germantown Trust Company, is directed to file a final account of the trust under the deed of trust of Rebecca J. Nelson Armstrong, dated Sept. 12, 1923; and to reconvey and retransfer to complainant, Rebecca J. Nelson Armstrong, her executors, administrators and assigns, free, clear and discharged from said trust, all property, effects, investments, principal and income forming the subject of the trust now held by the Germantown Trust Company.

2. The deed of trust of Sept. 12, 1923, is set aside, and the Germantown Trust Company is directed to deliver it to complainant for cancellation.

3. The costs of this proceeding and of accounting ■ and transfer of the assets are directed to be paid out of the trust estate.

4. The prothonotary is directed to give notice to the parties, or their counsel of record, of the filing of this decree nisi.


text:
    Williams v. Keystone Automobile Club.

      H. G. Knouse, for plaintiff; H. B. Beitler, for defendant.
    July 26, 1929.
   Martin, P. J.,

An action of trespass was instituted by plaintiff against the defendant to recover damages for personal injuries alleged to have been caused by the negligence of an employee of defendant.

A statement of claim was filed, alleging that defendant furnished an automobile for the use of plaintiff and that the chauffeur in charge of the automobile, while plaintiff was a passenger, so negligently controlled the motion of the automobile that it collided with another automobile, resulting in the injuries of which plaintiff complains. The statement alleges that defendant, by fraud, misrepresentation and duress, obtained the signature of plaintiff to a release and that the money paid as consideration for the release was paid by defendant to plaintiff for charitable purposes, and not as compensation to release her claim, and that she was assured by the agent of defendant that her signature to the papers would not estop her from prosecuting this suit.

The affidavit of defense admitted that defendant furnished the automobile and driver to plaintiff and averred that it was supplied for her free transportation, pursuant to her request. Defendant denied that the driver was negligent, and alleged that at the time of the accident the automobile and driver were under the direction and control of plaintiff. It is alleged that plaintiff executed a general release of all claims against defendant and received $450, the consideration for the release, in satisfaction of her claim, and that the settlement was made with her after full discussion and without any fraud, misrepresentation or duress. It is denied that the money paid to her for the settlement was a gift for charity, as alleged in the statement of claim, but averred that it was in payment and satisfaction of plaintiff’s claim. It is denied that assurances were made to plaintiff that the release she signed was not a final acquittance of her claim.

Plaintiff filed a paper which she endorsed as a reply to “new matter contained in the affidavit of defense.”

There was no new matter contained in the affidavit of defense. In her reply, plaintiff reiterated the allegations contained in her statement of claim. Defendant moved to strike from the record “plaintiff’s reply to new matter,” assigning that the affidavit of defense contains only what is properly pleaded as a defense to plaintiff’s claim, and does not include new matter; and that the reply to new matter does not conform to the Practice Act of May 14, 1915, P. L. 483, in that it contains conclusions of law as averments; that it constitutes merely a repetition of what appears in plaintiff’s statement of claim, and averments of evidence by which the facts of the case are to be proven, and contains averments of wholly immaterial facts.

And now, to wit, July 26, 1929, the motion is allowed to strike off the reply to new matter contained in the affidavit of defense, and it is ordered that the reply be struck off.


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

text:
    State Highway Construction Through Municipalities.
    July 26, 1929.
   Schnader, Special Dep. Att’y-Gen.,

We have your request for an interpretation of Act No. 409, approved May 1, 1929.

You desire to be advised:

1. Whether your department has the right, in entering into agreements with cities, to provide that you shall approve all plans and specifications for work to be done under the agreements, and that you shall also have the right to inspect the work to see that it conforms to the plans and specifications before any money shall be paid by the Commonwealth for the work done.

2. Whether your department has the right to determine whether the money allocated to any city shall be expended for construction, reconstruction or maintenance or a combination of these purposes; and

3. Whether your department shall pay for the engineering and inspection work which may be necessary in connection with work done on city streets out of the general Motor License Fund appropriation or out of the special appropriation of $2,000,000 made by Act No. 409.

Act No. 409 authorizes your department “. . . to enter into agreements with cities of the second class, second class A and third class providing for the improvement, construction, reconstruction and/or maintenance, in whole or in part, ... of any streets and highways in any such city which are not on the plan of the State highway system but which are continuations of State highways entering such cities, or running through such cities, or which furnish the shortest or most convenient route through such cities for the traveling public. . . .”

It provides, further, that “. . . such agreements may provide that the improvement, construction, reconstruction and/or maintenance shall be done by the Department of Highways, or the city, or by contract let by the Department of Highways, or by the city, or by both, and that the Commonwealth shall, in either event, pay the whole or any portion of the cost of such improvement, construction, reconstruction and/or maintenance, the city to pay the remaining portion of such cost.”

Further provisions grant authority to cities to enter into contracts with the Department of Highways, as hereinbefore outlined, to expend city money for such purposes, to make provision for the payment of the cities’ share of the cost of work done under the act, either out of the treasury or by assessment, and so on.

Finally, the sum of $2,000,000 is appropriated to your department out of the Motor License Fund “for the improvement, construction, reconstruction and/or maintenance of city streets and highways, in the manner provided by this act;” and your department is directed to allocate the appropriation among all of the cities “to which this act applies” upon a specified basis.

It is apparent that plans and specifications for the work to be done under the act must be prepared and approved by some one. The act does not attempt to prescribe what they shall be.

Likewise, some one must determine whether the work shall be done by your department, by the several cities or by contract, and in the last-named event, whether the contract shall be let by the city or by your department or by joint action. The act permits the appropriated money to be expended under any of the procedures mentioned, without specifying which procedure shall apply in any particular case.

Another question requiring determination by an administrative authority is whether, in any case, the money allocated to a particular city shall be expended for improvement, construction, reconstruction or maintenance or more than one of these purposes.

Three possible methods of determining these questions occur to the mind. Your department acting alone might settle them; the' cities acting independently of your department might settle them; or your department and the several cities acting jointly might settle them.

Which of these methods did the legislature intend to prescribe?

Clearly, it was not the legislature’s intention that, after the allocation of the appropriation to the several cities, they may proceed to expend their respective shares independently of your department. Had this been the purpose of the act, the appropriation would have been made to the several cities rather than to your department.

Nor, in our judgment, did the legislature intend your department to settle these questions without consulting the several cities affected. The legislature authorized you “to enter into agreements" with the several cities, thus indicating an intention that you should negotiate with the several cities and seek to arrive at an arrangement, mutually satisfactory, for the expenditure of their several allocations.

This brings us to the question whether, in any case, you are justified in insisting that the specifications for the work shall be at least of the standard which you prescribe for your work on State highways, and that, before any State money is paid on account of the work, you shall be satisfied, by inspection, that the work has been performed according to the approved plans and specifications.

To this question the answer is clearly in the affirmative. You would, in our judgment, he extremely remiss in the performance of your public duty were you to consent, in any case, to pay money out of the appropriation made by Act No. 409 for work of a lower standard than that which you require in expending the money appropriated to you for the improvement, construction, reconstruction and/or maintenance of State highways; and without inspecting the work to see that it was properly performed, you could not, in any case, properly present a requisition to the Department of the Auditor General calling for the payment of the appropriated money out of the Motor License Fund.

To your second question, the answer is similar: You should endeavor to agree with each city whether the money allocated to it shall be expended for construction, reconstruction or maintenance, or a combination of these purposes. You have a right to refuse to expend the money for a purpose which, in your judgment, is improper or unwise; and you should not, under any circumstances, permit any city to determine how its allocation shall be expended, independently of consultation with and approval by your department.

With respect to your third question, we advise you that, in our opinion, the legislature did not intend you to deplete the two million dollar appropriation made by Act No. 409 by charging against it any engineering or inspection expenses incurred by your department. You should, in our opinion, meet these expenses out of the general appropriation to your department of the moneys in the Motor License Fund.

From C. P. Addams, Harrisburg, Pa.