author: Hargest, P. J.,

text:
    Commonwealth v. Delone.

      Criminal law — Indictment—Sufficiency—Aiding and abetting embezzlement — Failure to allege crime was committed by principal — Act of 1909.

    An indictment under the Act of April 23, 1909, P. L. 169, for aiding and abetting an officer of a trust company to embezzle money, is insufficient where it fails to allege that the officer in question did embezzle money, since the offense of aiding and abetting is not complete unless in fact the principal committed the crime referred to.
    Motion to quash indictment. Q. S. Dauphin Co., June Sess., 1927, No. 95.

      Robert T. Fox, District Attorney, and Michael E. Stroup, Deputy Attorney-General, for Commonwealth.

      John R. Geyer and Paul G. Smith, for defendant.
    July 18, 1927.
   Hargest, P. J.,

The defendant is indicted under the Act of April 23, 1909, P. L. 169, for aiding and abetting an officer of a trust company to embezzle money.

The indictment specifically charges that the defendant “did . . . aid and abet one Aloysius S. Banmiller, who was then and there an assistant treasurer and employee of . . . The Commonwealth Trust Company of Harrisburg, Pa.....to embezzle, abstract and misapply certain of the moneys, funds and credits of said Commonwealth Trust Company.” The defendant moved to quash the indictment upon the ground that it “does not aver that the principal therein named, with whom the defendant is charged with aiding and abetting, did embezzle, abstract or misapply any money or did any acts in violation of law.”

At the argument of this case, the district attorney (correctly, as we think) conceded that this was a fatal omission. The offense charged in this indictment is aiding and abetting an officer of the trust company to embezzle. The Act of 1909 makes it a misdemeanor for any officer or employee of certain financial corporations to “embezzle, abstract or wilfully misapply any of the moneys, funds or credits of any of said institutions,” and to do other things therein mentioned. It also provides that “any person who, with like intent, aids or abets any” such officer or employee “in any violation of this act shall be deemed guilty of a misdemeanor.” So that the offense of aiding or abetting is not complete unless there is a violation of the act. The indictment does not charge that Banmiller embezzled, abstracted or misapplied moneys, but simply charges that the defendant aided and abetted Banmiller to embezzle, abstract and misapply.

The offense, under the statute, is practically that of an accessory, and the principles of law which apply to the indictment of an accessory apply in this case.

Prior to the Criminal Code of 1860, an accessory might be indicted, hut could not be tried before the conviction of the principal: Holmes v. Com., 25 Pa. 221. Since the Criminal Code of 1860, an accessory may be indicted jointly with the principal and may be tried before the principal is convicted, but it is a prerequisite, on the trial of the accessory, for the Commonwealth to prove the guilt of the principal: Buck v. Com., 107 Pa. 486. While there appears to be no Pennsylvania authority directly in point, the general principles seem to be well established.

In 31 Corpus Juris, 659, 662, “Indictments and informations,” it is said: “Nothing can be charged by implication or intendment. . . . Whatever is indispensably necessary to be proved to warrant a conviction must, as a general rule, be alleged.”

An embezzlement by Banmiller must be proved. Therefore, it must be distinctly charged in the indictment. In 31 Corpus Juris, 739, it is said with reference to indictments of accessories: “All the material averments of an indictment against the principal must be embodied in the indictment of an accessory before the fact, and the same particularity is required. The commission of the offense by the principal must be alleged. . . . Following the charge of the principal crime, the facts showing that the party charged is an accessory must be alleged:” See Com. v. Kaas, 3 Brewster, 422. The indictment in this case does not comply with these principles, and we are, therefore, required to sustain the defendant’s motion to quash.

Now, July 18, 1927, the indictment in the above stated case is hereby quashed. Prom Homer L. Kreider, Harrisburg, Pa.


source: Caselaw Access Project

author: Hirt, J.,

license: Public Domain

text:
    Franz v. Foster.

      Actions — Malicious prosecution — Probable cause — Advice of counsel— Trial — Charge of court.

    1. If all the admitted facts and the reasonable inferences therefrom amount to probable cause, the court must so declare and direct a verdict for the defendant, even if malice is clearly proven.
    2. It is not necessary, in order that the court may rule as a matter of law that probable cause for the prosecution existed, that such evidence should appear from the plaintiff’s own ease. It may result in evidence produced by the defendant.
    3. If a defendant in an action for malicious prosecution in good faith sought, obtained and honestly followed the advice of competent counsel on a full and fair statement of all facts within his knowledge or which he had reasonable cause to believe he was able to prove, the advice so received and acted upon will constitute a defense.
    Rule for judgment n. o. v. C. P. Erie Co., Nov. T., 1925, No. 68.

      S. Y. Rossiter and T. P. Dunn, for plaintiff.

      Franklin B. Hosbach, for defendant.
    Aug. 30, 1927.
   Hirt, J.,

Plaintiff, in 1925, on an information made by defendant, was charged with breaking and entering and larceny. At the trial on the indictment, a verdict of not guilty was directed. This action was then brought charging malicious prosecution.

At the trial here, plaintiff, in support of his cause of action, made out a prima facie case only by the offer of the information, indictment and verdict of acquittal. This offer was not supplemented by evidence of want of probable cause.

Foster was the owner of a quantity of tools stored in an outhouse in the rear of the premises occupied by him. Though defendant and his wife had occupied the building for upwards of twenty-one years, a part of the land on which this shed was built was claimed to be the property of plaintiff’s mother. There was a dispute as to the title to the land. On Sept. 25, 1924, defendant’s wife saw plaintiff and one Peterson break into the shed and take away a number of defendant’s tools. She was corroborated by the witnesses Bennett, Steadman and Drayer. Two of these witnesses testified that they saw Franz coming out of the building carrying away some of the tools. Some of these tools were later seen in the possession of Franz ih a nearby garage. Defendant’s wife and the other witnesses told defendant what they had seen, and he consulted an attorney and fairly related the facts as they were communicated to him. Acting on the advice of this counsel, the prosecution was instituted. Defendant was also referred to an attorney in Erie, who advised the prosecution. Defendant’s testimony was not denied or contradicted, and on the whole record, therefore, we have proof of probable cause, with the further fact that defendant acted upon the advice of competent and reputable counsel.

The prima fade case made out by plaintiff was sufficient to take the case to the jury, unless the evidence produced by the defense was of such a character as to require the court to determine that it constituted probable cause for the prosecution. The essential element is such a reasonable ground of belief as would cause an ordinary prudent man to act. Where there is no dispute in relation to the facts or doubt as to the inferences to be drawn therefrom, it is for the court to determine whether they constitute probable cause. Defendant’s evidence rebutting the prima fade case made out by plaintiff is not evidence of the guilt of the person accused of crime, but evidence of the circumstances and events leading up to the prosecutor’s reasonable belief in such guilt. If they are admitted or established by uncontra-dicted evidence, and are of such character as to furnish reasonable ground for belief on the part of the prosecutor in the guilt of the person accused, the court should hold as a matter of law that they constitute probable cause and give binding instructions for the defendant. It is not necessary, in order that the court may rule as a matter of law that probable cause for the prosecution existed, that such evidence should appear from the plaintiff’s own case; it may result from the evidence produced by the defendant if undisputed or uncontradicted, or so clearly established as not to be open to dispute, or if the admitted facts on both sides amount to probable cause: Trautman v. Willock, 88 Pa. Superior Ct. 404. The general rule undoubtedly is that probable cause does not depend on the state of the case in point of fact, but upon the honest and reasonable belief of the party prosecuting; the test is the prosecutor’s belief of the existence of probable cause at the time, based upon reasonable grounds. And, therefore, if the defendant in an action for malicious prosecution in good faith sought, obtained and honestly followed the advice of competent counsel on a full and fair statement of all facts within his knowledge, or which he had reasonable cause to believe^ he was able to prove, the advice so received and acted upon will constitute a defense to the action. A prosecutor may show that he acted upon information received from reputable private citizens, and such information may constitute probable cause for the prosecution, and it is wholly unimportant, so far as the defense is concerned, whether the advice was warranted by the facts submitted to the counsel, as the prosecutor, in this particular, is only responsible for a full and truthful statement of them: Herscovitz v. Linder, 75 Pa. Superior Ct. 8. If all the submitted facts, and the reasonable inferences therefrom, amount to probable cause, the court must so declare and direct a verdict for the defendant. The jury is not at liberty to find a fact without evidence, and if all the admitted facts on both sides amount to probable cause, the court should direct a verdict for the defendant, even if malice is clearly proven: Taylor v. Am. I. Shipbuilding Corp., 275 Pa. 229.

The above authorities control the disposition of this case. Judgment for the defendant might have been directed at the time of the trial, and on these authorities judgment must now be entered n. o. v.

And now, to wit, Aug. 30, 1927, the rule granted Jan. 21, 1927, on defendant’s motion for judgment is made absolute and judgment is directed to be entered for the defendant n. o. v. From Otto Herbst, Erie, Fa.


author: Hassler, J.,

text:
    Livingston v. Clark.

      Sales — Oral contract for more than $500 value — Written confirmation— Statement — Sufficiency of — Acts of May H, 1915, and May 19, 1915.

    1. Where, in a suit brought for breach of an oral contract to sell goods valued at $500 and upwards, the statement of claim does not aver that the buyer received part of the goods or gave something to bind the contract, but avers that the oral contract was afterwards confirmed in writing, though failing to have attached a copy of such confirmation, such statement is defective, as there could be no recovery under section 4 of the Act of May 19, 1915, P. L. 543, without such confirmation in writing, and, therefore, a copy of such writing should have been attached to the statement under section 5 of the Practice Act of May 14, 1915, P. L. 483.
    2. The plaintiff should be permitted to amend such statement by attaching to it a copy of the written confirmation of the contract.
    Rule for a more specific statement. C. P. Lancaster Co., Aug. T., 1925, No. 134.

      F. Lyman Windolph, for rule; John M. Groff, contra.
    April 16, 1927.
   Hassler, J.,

The plaintiff in this case seeks to recover for a breach of an oral contract made on July 8,1925, with the defendant, wherein the latter agreed to sell the plaintiff beef hides, calf skins and tallow products which he, the defendant, had in his possession at the time the contract was made. The quantity of each is set forth in the statement, as are the prices which were to be paid for them. The amount to be paid for them is in excess of $500. The plaintiff seeks to recover the amount he was compelled to pay for similar goods in excess of the price which it was agreed he should pay the defendant for them. The plaintiff alleges that on July 11, 1925, the defendant in writing confirmed the oral contract. It is not alleged in the statement that any part of the goods so purchased was delivered to or received by the plaintiff, nor that any thing was paid by the plaintiff to bind the bargain.

The defendant presented a petition, asking for a more specific statement of claim. Upon it, this rule was granted.

The only reason given why a more specific statement should be filed is that the plaintiff failed to attach a copy of the written confirmation of the contract to his statement.

Section 4 of the Act of May 19, 1915, P. L. 543, commonly known as the Sales Act, provides, inter alia, as follows: “A contract to sell or a sale of any goods or choses in action of the value of five hundred dollars or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf.”

Section 5 of the Act of May 14, 1915, P. L. 483, inter alia, provides that “every pleading shall have attached to it copies of all notes, contracts, book entries . . . upon which the party pleading relies for his claim or defense, as the case may be.”

In this case, the contract upon which the plaintiff relies in part for his claim is an oral contract entered into on July 8, 1925. It, however, is not enforceable by action without the written confirmation of it of July 11, 1925, set forth in the statement. That written confirmation is, therefore, part of the contract upon which the pláintiff relies for his claim. Under the Practice Act, it must be attached to his statement.

Section 21 of the Act of 1915, supra, authorizes the court to strike the pleading from the record or to allow an amendment upon such terms as it may direct. We think the proper course in this case would be to permit an amendment of the statement by attaching to it a copy of the written confirmation of the contract made on July 11, 1925.

We, therefore, direct the plaintiff to attach a copy of said written confirmation to the statement. Rule made absolute.

From George Ross Eshleman, Lancaster, Fa.


author: Reno, P. J.,

text:
    Commonwealth v. Fuenstueck.

      Criminal law — Murder—Indictment based on testimony of wife — Quashing indictment.

    An indictment for murder will be quashed where it appears that the wife of the defendant appeared before the grand jury, which considered the murder indictment and an assault and battery indictment at the same time, and gave testimony relating to the alleged murder, in a general way testified against her husband, and that, after hearing such testimony, the grand jury returned an indictment for murder against defendant.
    Motion to quash indictment. O. and T. Lehigh Co., April Sess., 1927, No. 1.

      Orrin E. Boyle, District Attorney, for Commonwealth.

      Dallas Dillinger, Jr., and Erwin F. Lessel, for defendant.
    April 11, 1927.
   Reno, P. J.,

There are two indictments ágainst the defendant. One charges the murder of Evelyn Hummel; the other charges assault and battery upon defendant’s wife. Upon both indictments the defendant’s wife is endorsed as a witness. Both indictments were presented to the grand jury at the same time.

It appears from the commendably frank statement of the district attorney, who was present at the session of the grand jury, that the grand jury considered first the indictment charging murder, and upon that charge heard three or four witnesses, not including defendant’s wife. Before finally voting upon the homicide indictment, the grand jury next considered the assault and battery indictment and heard the testimony of the wife. During the course of the testimony upon the charge of assault and battery, defendant’s wdfe testified to a number of incidents which occurred on March 7, 1927, before and after the time of the alleged murder. This testimony, which need not be here transcribed, related directly to the alleged murder and, in a general way, may be said to have been testimony against her husband.

After hearing the wife’s testimony upon the assault and battery case, which, as has been said, included testimony relating to the murder charge, the grand jury proceeded to vote upon both indictments and found and returned true bills on both indictments. In other words, the grand jury had before it the wife’s testimony relating to the murder charge before it deliberated and voted upon the homicide indictment.

This constituted a substantial invasion of defendant’s rights, in that defendant’s wife, an admittedly incompetent witness, was permitted to testify against her husband. This can be corrected only by quashing the indictment, and an order to that effect will be entered. Judge Iobst authorizes me to state that he concurs fully in these conclusions and the resultant order.

And now, April 11, 1927, the motion to quash is sustained and the indictment is quashed.

From Edwin L. Kohler, Allentown, Fa.


author: Martin, P. J.,

text:
    Folz v. Zimmerman.
    Practice, C. P. — Pleading—Trespass—Assault and battery — Statement of claim.

      1. A general statement of facts which admits of almost any proof to sustain it is objectionable in pleading.
    2. In an action of trespass to recover for injuries caused by an assault and battery, the statement of claim should state specifically the character of the wounds, injuries, sickness and disorder for which the compensation is claimed, the nature of the plaintiff’s occupation and the emoluments alleged to have been lost.
    Statutory demurrer. C. P. No. 5, Phila. Co., Dec. T., 1927, No. 1120.

      TI. J. Tahl, for plaintiff; J. Yearsley, for defendant.
    Feb. 20, 1928.
   Martin, P. J.,

The plaintiff instituted suit against the defendant in trespass and filed a statement of claim, averring that “on or about the 14th day of July, 1927, the said defendant, Charles Zimmerman, did, in the premises of 3901 North 8th Street, in the City and County of Philadelphia, in the place where the plaintiff resides, unlawfully, maliciously and without provocation, assault, beat and strike the plaintiff over his face and various other parts of his body in such a brutal manner that the plaintiff became sick, sore and disfigured; that, by reason of said assault committed by the defendant, Charles Zimmerman, the plaintiff became sick, sore and disfigured and received a severe shock to his nervous system. He has been prevented from attending to his usual occupation. He has suffered great distress of mind and pain of body. Wherefore the plaintiff, Michael Folz, claims damages in the sum of $3000.”

The defendant filed an affidavit of defense raising questions of law, contending that the statement of claim is insufficient “because it fails to allege and specify, as a material fact, any means or instrumentality of the supposed assaulting, beating, striking, disfiguring, etc.,” and “because it fails to specify any elements of injury or damage or loss, any occupation, loss, in any items, any wounds or disfigurement or details of costs of any medical or surgical treatment, and is in other respects vague and indefinite.”

Under the Practict Act, defendant is not entitled to ask for a bill of particulars.

The objections to the statement of claim might have been raised by a rule for more specific statement; but the questions may be disposed of by these objections filed in the nature of a demurrer.

“A general statement of facts which admits of almost any proof to sustain it has always been held objectionable in pleading. . . . The principal rule as to the'mode of stating the facts is that they must be set forth with certainty, by which term is signified a clear and distinct statement of facts which constitute the cause of action or ground of defense, so that they may be understood by the party who has to answer them, or the jury who are to ascertain the truth of the allegations, and by the court who are to give judgment. . . . When the law does not necessarily imply that the plaintiff sustained damages by the act complained of, it is essential to the validity of the declaration that the resulting damage should be shown with particularity. . . . Special damage must be stated with particularity in order that the defendant may be enabled to meet the charge if it be false, and if it be not so stated, it cannot be given in evidence: 1 Chitty’s Pleading, 414. ... It must always be necessary to any regular administration of law that the plaintiff shall make a clear, distinct and intelligible statement of his claim in order that the defendant may know what he has to meet. ... It will add to the administration of justice to require plaintiff to state specifically the character of the wounds, injuries, sickness and disorder for which compensation is claimed, the nature of the occupation, and the emoluments alleged to have been lost:” Rogers v. Phila. R. T. Co., 22 Dist. R. 41.

And now, to wit, Feb. 20, 1928, the affidavit of defense raising question of law is sustained, and plaintiff is given fifteen days to file an amended statement of claim.


author: McDevitt, P. J.,

text:
    White v. White.

      Divorce — Desertion—Driving wife from home.

    A husband who had been living' with his wife for twenty-nine years will not be granted a divorce on the ground of desertion where it appears that the libellant ordered the respondent from his home at a late hour of the night, and that, in doing so, he assumed a quarrelsome and belligerent attitude and did not after-wards make any attempt in good faith at reconciliation.
    Exceptions to master’s report. C. P. No. 1, Phila. Co., Sept. T., 1926, No. 2392.

      J. H. Simms, for libellant; David Lavis, for respondent.
    Feb. 3, 1928.
   McDevitt, P. J.,

This matter comes before the court on exceptions filed by respondent to the report of the master, recommending a divorce. Briefly, the facts are as follows:

Libellant and respondent have both passed the age of sixty. They were married on March 8, 1890, nearly forty years ago, and lived together until May of 1919, when, according to libellant, respondent and her son left the common domicile, and, according to respondent, they were driven from their home.

According to the libellant, the difficulty in the month of May, 1919, arose when he reprimanded his son, the only living of four children, because he had seen him talking to a woman of questionable character at the son’s place of employment. This was denied by the respondent and the son, both of whom testified that the quarrel was occasioned by the quarrelsome and belligerent attitude of the libellant, who, in consequence of the same, ordered both of them from the house at a late hour of night.

For three years and upwards, libellant had ignored respondent, had carried on no conversation with her, and even when contributing to the support of the household, according to respondent and her son, would send the message or the contribution through the son as an intermediary.

The master seemed impressed with the fact that libellant had taken great interest in the development of his son during his youth and seems to think that this counter-balances the testimony of the respondent and the son concerning his alleged abuse on the night of the separation. The reverse conclusion might be reached — that his attitude on the night of the separation only bears out the contention of the respondent and son that for the period indicated by them, his attitude had changed because of allegations of outside interests which failed of substantial proof. Whatever the reason or the inspiration may have been, there was a change in his attitude sometime prior to the separation; and family differences arising in what must, by the rule of reason, be the sunset of the lives of the principals should be overlooked instead of being over-emphasized. Those who have lived together for twenty-nine years should have better grounds for divorce than those alleged in this action. Whatever the disagreement, controversy or quarrel may have been, nothing in the record justifies the driving of respondent from libellant’s household, nor the failure of libellant in the interim to attempt in good faith to effect a reconciliation.

Marriage is accepted and recognized by all civilized nations as a peculiar and favored contract. It is, in its origin, a contract of natural law; but it has grown to be something more than a mere contract. It is a recognized institution of society, founded upon the consent and contract of two parties, and in this, however, it has some peculiarities in its nature, character, operations and extent of obligation different from those that belong to ordinary contracts. It is the parent, not the child, of society. Upon it rests the social structure of not only the state but the nation.

Under our laws, it is a civil contract, regulated and prescribed by law and endowed with civil consequences. In other countries, where it has had the sanction of religion superadded, it is a religious as well as a civil contract, and it is a mistaken idea that it cannot be both at the same time.

While the sanctity attending the marriage contract does not enter into the question of a violation of it as a civil contract, it, nevertheless, should throw about it an additional cloak of protection and make it the harder to rescind.

Marriage is the most important of all human transactions; and the rights, duties and obligations arising from it cannot be regulated exclusively by the agreement of particular parties, but rather, to a great extent, by legislative regulation which must be construed as matters of public policy. For instance, unlike other contracts, it cannot be rescinded or waived by mutual consent, though nowadays the popular interpretation of a marriage contract is one of convenience, to be chucked or shelved for slight provocation. Discretion and caprice of parties to marriage contracts should not be permitted to interpret the obligations arising therefrom, nor should the conventions of society, lax as they now are, be permitted to destroy the foundations of an institution that spells the future or ruination of a nation. In the interests of morality and the well-being of the entire state and nation, the marriage contract must be protected, rather than that ways and means be devised to destroy its usefulness and make easy its rescission.

Divorce strikes at the heart of civilization, and we cannot consider divorce apart from the reasons for marriage and remarriage, which nowadays seem to be so diiferent from what they were originally. Whether it be the craving for riches, relief from employment, release from paternal restraint or unbridled passion and sensual desires, the fact remains that there are more hasty marriages nowadays than heretofore, and that the majority of divorces are the result of such hasty marriages. In practically every book of the Bible there is a reference to divorce, and in most of them the admonition is to the male party to the contract, which only goes to prove that it is not a new question, but one that has assumed more dangerous proportions than ever before. The ease with which divorces can be procured is, in our opinion, the principal cause of the present situation. If the grounds for divorce were limited to a statutory offense, instead of every whim of a disgruntled husband or wife magnified into cruel and barbarous treatment or indignities to the person, it might make them stop and ponder before taking the first step toward destruction.

This court has carefully reviewed all the testimony. We have drawn all the inferences that might be legally drawn from the evidence produced by both sides, but we do not feel that the proof of the libellant rises to the level necessary to establish a good ground for divorce under our laws as at present constituted. We have not, of course, had the advantage enjoyed by the master of seeing the principals to this action, but we must take judicial notice of every-day affairs, and exercise our own common sense in interpreting conduct and actions in such cases.

The recommendation of the master is disapproved, the exceptions of the respondent are affirmed and the libel dismissed.


author: Henderson, J.,

text:
    Devine’s Estate.

      Practice, O. C. — Bill of review — Adjudication — Agreement of parties— Estoppel.

    1. Where an issue is fairly raised in the Orphans’ Court and the parties, among themselves on the record and by their writings, agree as to the findings, they are not entitled, afterwards, to a review to relieve themselves from their solemn agreement in writing and from their mistakes and blunders, on the ground that they did not realize that the amount involved would be as great as it subsequently proved to be; and especially is this so where proper accounting would show that nothing was really due the petitioners and the pleadings contain no offer to so account.

      Wills — Legatees—Annuitants—Residuary estate.

      2. Where legatees and annuitants are the primary object oí the bounty of a testatrix, they must be paid in full before the residue payable to the residuary legatees can be ascertained.
    Petition for review. O. C. Phila. Co., April T., 1899, No. 318.
    Daniel C. Donoghue, Ja/mes Fitzpatrick and William I. Stamton, for petitioners.

      R. M. Remick (of Saul, Ewing, Remide & Saul), for respondents.
    April 13, 1928.
   Henderson, J.,

This proceeding is for a review of an adjudication filed July 23, 1926, and to which no exceptions were filed. It was referred to a master to find merely the facts. His findings, set out in the record, were excepted to, and at the argument before us these exceptions were withdrawn; hence, the following questions are now to be determined: (1) Are the petitioners, residuary legatees, entitled to a review; (2) have the respondents, annuitants, any claim on the proceeds of real estate, or are they merely limited to income; and (3) to what interest are they entitled?

The record shows that these questions were squarely raised at the audit, and the residuary legatees, represented by counsel, agreed that the balance of the annuities, together with interest, should be paid in full out of the fund then before the court, which included the proceeds of realty. The other residuary legatees joined in this agreement by letters to the Auditing Judge, all of which are attached to the adjudication.

These parties, or rather most of them, now complain that they did not realize that the amount involved would be as great as it is, and pray that they may be protected from their own mistakes and blunders, and in support thereof cite Willing’s Estate, 288 Pa. 337, and Turnbull’s Estate, 88 Pa. Superior Ct. 482.

In the former, our Supreme Court said: “Irrespective of any legislation, the Orphans’ Court possesses an inherent discretionary power ‘to correct its own records in the interest of justice, even to protect parties from the effect of their own mistakes and blunders:’ Sloan’s Estate, 254 Pa. 346, 350.”

In the latter case, our Superior Court said: “In Troutman’s Estate, supra, it is pointed out that the Fiduciaries Act is also applicable to errors made in the adjudication, whereas the Act of 1840 related only to errors in the account, and it is there said that where an error appears in an adjudication and the balance found due has not been actually paid and discharged, a rehearing is a matter of right unless, at the audit, the question at issue was raised, contested and decided adversely to petitioner. The proviso of the earlier act was carried into the later, and is to the effect that the act shall not ‘extend to any cause when the balance found due shall have been actually paid and discharged by any fiduciary.’ ”

Distribution has not been made and the petitioners contend that the annuitants’ rights to arrears and interest were not contested because the facts presented at the audit did not properly raise the question, and, hence, there was no contest, and that the matter was not argued.

The record shows that the question was fairly raised. Counsel for some of the annuitants stated to the Auditing Judge: “While Mr. Skinner has stated that all the annuitants are dead, that statement, to my mind, is not quite accurate. St. Joseph’s Hospital is one of the annuitants; all the other annuitants are dead. As Mr. Skinner has stated, during the early stages of the administration of this estate the income was not sufficient to pay all the annuitants, due to the fact that there was a prior annuity of $10,000 and an annuity of $500 charged on the entire estate. All income that came before the court on the first and second accounts was awarded them and the principal was awarded back to pay the income to these annuitants in full and the balance pro rata to the other annuitants. That has not been done. It was during those years the annuitants received a portion of their annuities. I represent the Sisters of St. Joseph’s Hospital and the next of kin of two deceased annuitants. At the time of the adjudication in 1921, due to the fact that several of the annuitants had died, there was sufficient in the estate to pay all the annuitants then remaining in full and to pay all the legatees in full, with interest to the date of payment. In addition to that, the residuary legatees received $19,000 of income. On behalf of the annuitants I represent, it is my contention that, prior to the time the residuary legatees are entitled to anything out of the estate, the unpaid portion of the annuities should be paid, with interest to date. I also claim against $12,000 set aside and unconverted real estate in the hands of the present accountants for the payment of back annuities.”

To this statement, counsel for five of the residuary legatees replied: “I represent five. On their behalf, I considered the question and I have no objection that the deficiency in the annuities shall be paid.”

The other counsel present for certain residuary legatees concurred in this statement, and the remaining residuary legatees did so by letter.

The record, therefore, shows that the issue was properly raised, conceded by these petitioners and decided adversely to them. The question thus presented is: when an issue is fairly raised and the parties among themselves, on the record and by their writings, agree as to the finding, are they entitled to a review to relieve themselves from their solemn agreement of record, with the other parties in interest and with the court? We think not. They conceded the questions instead of contesting them and should not now be permitted to reopen them. If the court may not rely on the agreement of the parties, its business would soon be in a chaotic condition.

These petitioners concede that the annuities are payable at least out of income, and the record shows that, without notice to these annuitants, the petitioners received over $47,000 of income awarded in the adjudication of 1921, an amount which would then have been sufficient to pay these claims in full, and which, with interest, with which they would be surcharged, will also suffice to quit this claim. No decree could be made in their favor without an accounting for this income and interest thereon. Their pleadings contain no offer to so account, although counsel stated verbally at the argument his willingness to do so. Hence, under their own admission, nothing is due them.

We find no merit in the question of law raised by the petitioners, to wit, that these annuitants must look to income alone to satisfy their claims and may not participate in the proceeds of real estate.

These annuities were a charge upon the entire estate. By item fourth of the will, the testatrix gave a preferred annuity of $9000 to her adopted daughter, with provision that upon her death “the residue of the principal sum set apart to provide for the payment of the said annuity to her for life, to become part of my residuary estate.” This is increased by the codicil of Feb. 6, 1899, to $10,200, with the direction, “in case my estate shall prove insufficient for the payment of all the legacies and annuities mentioned in my said Will and Codicils,” that this annuity to her adopted daughter should not suffer any abatement.

In every clause of her will giving an annuity, she provided that upon the death of an annuitant “the principal retained to meet this annuity shall become part of my residuary estate.” It was manifestly her intent that part of her estate should be set apart to assure each annuity. This was never done, but equity will presume that as done which should have been done.

The residuary legatees can take nothing until these claims are satisfied. But they contend that the corpus of each annuity was given to them. While it is true it became a part of the residuary estate, it was not given to them by name; hence, it must be administered and subjected to deficiencies of legacies and annuities; these beneficiaries are the primary objects of her bounty and must be satisfied in full before the residue payable to the residuary legatees can be ascertained. They are entitled merely to the crumbs of what is left. See Haines’s Estate, 25 Dist. R. 994; Costello’s Estate, 16 Dist. R. 188, and Wootten’s Estate, 21 Dist. R. 1035.

These annuities began with the death of the testatrix, and interest will be awarded from the date they fell due. It is suggested that the account audited in 1921 contained a fund amply sufficient to take care of all interest, and as no claim was then made, therefore, none should now be allowed. These annuitants were without notice of that audit, and, hence, are not bound thereby; the fact that they could have made such a claim in 1900 and 1907 is without merit. See Willing’s Estate, 288 Pa. 337.

The petition is dismissed.

Van Dusen, J., did not sit.


author: Hare, P. J.,

text:
    Hartman v. Pullman Company.

      Railroads — Sleeping-car companies — Loss of property in sleeper.

    The mere loss of property from a berth or stateroom of a sleeping-oar while the passenger has gone to the dressing-room of the car will not impose liability on the sleeping-car company in the absence of evidence of any specific negligent act or breach of duty on the part of the company or its employees.
    Statutory demurrer. C. P. Blair Co., June T., 1927, No. 11.

      Robert W. Smith, for plaintiff; Oliver H. Hewit, for defendant.
    Dec. 29, 1927.
   Hare, P. J.,

In the affidavit of defense filed, the defendant insists that the plaintiff is not entitled to have his cause submitted to a jury, because (1) the statement of claim does not contain any averments of fact convicting the defendant of negligence, requiring it to respond in damages; and (2) under his own averments, the plaintiff is barred by his contributory negligence.

The object of the suit is to recover the value of certain property alleged to have been stolen from the plaintiff while a passenger on a Pullman sleeping-car. According to the statement, the plaintiff was a passenger on the Pullman ear “Port Strong,” en route between West Yellowstone and Ogden, Utah. He had with him a watch, chain and Masonic badge. Upon retiring at night, he placed these articles for safekeeping under the pillow of his berth. Upon arising in the morning, the plaintiff repaired to the dressing-room of the car. Upon his return he discovered that the porter had made up his berth and placed it in condition for day travel. He then discovered that the watch, chain and charm were missing. He immediately informed the porter of the loss and demanded restitution, and also made similar demands upon the conductor. He complains that, notwithstanding such demands upon both the conductor and the porter, they did not make any search or investigation to ascertain the cause of the loss or compel the return of the missing articles.

The cause of action, as here stated, is one calling for the application of the principles of law established in the case of Springer v. Pullman Co., 234 Pa. 172. In that case, Mr. Justice Stewart, speaking for the court, said that “mere proof of loss of baggage which is taken by a passenger into a sleeping-car does not make out an absolute or prima fame case of liability against the car company. In applying this rule, the court, in Mathis v. Off, 8 D. & C. 6, said: “Negligence involves fault, and without fault, except in the instance of innkeepers, carrier of goods or some other similar relation, there is no liability. Thus, neither a sleeping-car company (Springer v. Pullman Co., 234 Pa. 172) nor a steamboat furnishing sleeping accommodations (Steamship Co. v. Bryan, 83 Pa. 446) is responsible for the loss of a passenger’s goods, unless caused by negligence; the mere loss of goods from a berth or state-room is no evidence of neglect.”

What negligence is averred on the part of the company? It is not alleged in the statement of claim that the porter or any other person in the car stole the articles in question. The plaintiff would have us infer want of care and diligence on the part of the company, because, after the plaintiff left the berth and retired to the dressing-room, the porter took charge of it for the purpose of preparing it for day travel, and that upon plaintiff’s return from the dressing-room he found the berth made up for the day and discovered the watch, chain and charm missing. The statement does not inform us whether the porter was at the berth at the time the plaintiff left it or that he was there when the plaintiff returned. Of course, if there was actual delivery of the possession of the property to the porter, as an employee of the company, or if the porter, as an employee, had actual and continuous possession of the berth from the instant the plaintiff left it until he returned, a different situation would be here presented. But as the plaintiff has laid his cause of action in his statement, we do not discover any averment of any specific negligent act or breach of duty on the part of the company which has any relation to the loss or which may be said to be the proximate cause thereof.

The question of law raised in the first paragraph of the statutory demurrer is resolved in favor of the defendant, and the demurrer is sustained, with leave to the plaintiff to file an amended statement of claim within fifteen days. If an amended statement be not filed within that time, judgment will be entered for the defendant.


author: McConnel, J.,

text:
    Garvin v. Beaver Falls Borough.

      Equity — Parties—Remedy at law — Boroughs—Ordinance—Arrest of violators of ordinance.

    A preliminary injunction against a borough restraining the arrest of plaintiff for violating an ordinance forbidding the erection of a gasoline tank within the borough limits, will be dissolved where it appears that the borough alone is named defendant without a joinder of its officers, although a decree is prayed against such officers, that plaintiff never appealed from the ordinance as passed, and that he has an adequate remedy at law if arrested.
    Bill for preliminary injunction. C. P. Beaver Co., Sept. Term, 1927, No. 8, in Equity.

      A. G. Helbling, for plaintiff; Ma/rtin, Swaney & Ewing, for defendant.
    Aug. 24, 1927.
   McConnel, J.,

On Aug. 17, 1927, the plaintiff filed a bill in equity in the Court of Common Pleas of this county for an injunction against the Borough of Beaver Falls, setting forth, among other things, that the plaintiff had leased certain land in the Borough of Beaver Falls from the Pittsburgh & Lake Erie Railroad Company; that he had made application to the Bureau of Fire Protection of the Commonwealth of Pennsylvania for permission to erect three 10,000-gallon steel storage tanks, and also a pumping station for the purpose of unloading gasoline, oil, naptha and other substances from tank-cars, and said permit was granted to the plaintiff on July 11, 1927; that the plaintiff thereupon began the erection of said tanks, and had the same almost completed when certain citizens in the neighborhood restrained the erection of said tanks, filing a bill in equity at No. 4, September Term, 1927, in this court, upon which a temporary injunction was issued on July 20, 1927, which, on July 25, 1927, after a hearing, was dissolved; that a second injunction was issued on July 25, 1927, which was also dissolved on Aug. 4, 1927; that, after the issuing of the first injunction, the Town Council of the Borough of Beaver Falls passed an ordinance prohibiting the erection of said tanks, which ordinance became a law on Aug. 4, 1927, a copy of which is attached to the bill and marked Exhibit “A;” that, on Aug. 16, 1927, the plaintiff began to complete the erection of said tanks and was arrested by the Chief of Police of the Borough of Beaver Falls, given a hearing and a fine imposed; that the chief of police testified at said hearing that he had been instructed by the town council to make said arrest, and that he had been instructed to arrest the plaintiff herein as often as he would attempt to complete the erection of said tanks; that the plaintiff having begun the erection of said tanks before the passage of said ordinance, the same cannot be retroactive, and said arrest can only he made for the purpose of annoying, harassing and inconveniencing the plaintiff.

Plaintiff further sets forth in his bill that he has been informed, and believes, that said ordinance is unreasonable, illegal and void; that, unless the defendant is restrained from further arresting the plaintiff under said ordinance, the said action will give rise to a multiplicity of cases at law; that a continuance in the arrests of the plaintiff by the defendant will deprive him of his rights and the use of said property, and he will suffer irreparable injury. Plaintiff prays that the defendant, its officers, agents and employees he required to appear and make answer to the bill of complaint, and that a preliminary injunction may issue, to be made perpetual hereafter, restraining the Borough of Beaver Falls, its officers, agents and employees, as well as all other persons, from arresting the plaintiff or making complaint against, hearing or passing judgment against him or his agents or employees, for violation of Ordinance No. 624 of said borough, or in any way interfering with the plaintiff, his agents or employees in the completion of the erection of said tanks. At the same time, injunction affidavits were filed and a bond, which was approved by the court, and a preliminary injunction was issued as prayed for. The hearing was fixed for Monday, Aug. 22, 1927, at 8 o’clock A. M.

At the time of hearing, attorneys appeared, d. b. e., for the Borough of Beaver Palls and made a motion to dissolve the preliminary injunction for the following reasons:

“1. It appears from an inspection of the bill that, upon the facts averred therein, the plaintiff has a full, complete and adequate remedy at law.
“2. All of the allegations contained in the bill of complaint are allegations that should be raised in an appeal from a conviction under the provisions of said ordinance.
“3. At No. 64, September Sessions, 1927, in the Court of Quarter Sessions of the Peace of the County of Beaver, the plaintiff appealed from a conviction under the provisions of the ordinance mentioned and expressed in the bill of complaint.
“4. The bill of complaint is defective, in that the officers of said borough are not mentioned, but simply the Borough of Beaver Palls is named as the sole defendant.
“5. The service of the sheriff is defective, in that service was not made upon any municipal officer, except the secretary and burgess, and said return shows that no service was made upon any member of the town council, which is the instrumentality through which the municipality acts.
“6. The injunction in this case having been granted without previous notice to the defendant and no motion to continue argued within five days after notice of the granting thereof, under Equity Rule 39, the injunction is now dissolved, the court not having especially ordered otherwise as provided by said Equity Rule.”

This motion was overruled by the court at the time it was made, the court indicating, however, that, in its opinion, the motion would have to be granted because all parties who were interested and intended to be bound by the injunction were not parties to the bill; but it was suggested that if the plaintiff and defendant wished to present any evidence, the same would be heard and the whole matter thereafter disposed of by the court.

The plaintiff thereupon produced a number of witnesses, and the evidence as introduced before the court showed that a permit had been applied for and issued to Prank G. Garvin by the Bureau of Fire Protection for the Commonwealth of Pennsylvania, allowing the erection of said tanks and a pump in the Borough of Beaver Falls, in this county. The application was made June 16, 1927, and the hearing was held in the council chamber of the Borough of Beaver Falls before the Fire Marshal of the State on July 6, 1927. One of the attorneys for the Borough of Beaver Falls was present at this hearing, as were the secretary of council and one or more councilmen. The permit was granted on July 11, 1927. Work was commenced by the plaintiff upon the location of these tanks on July 13, 1927, and continued until July 20, 1927, when it was stopped by an injunction from this court. During that period, the work of erecting the tanks was almost completed. On Aug. 16, 1927, when the plaintiff had commenced work again, he was arrested and a hearing was held before the Burgess of the Borough of Beaver Falls. At that time, the Chief of Police of the Borough of Beaver Falls testified that his instructions were to arrest the plaintiff and his workmen every time they started to work. The tanks were to be erected upon property of the Pittsburgh & Lake Erie Railroad Company which had been leased by them to the plaintiff.

Ordinance No. 624, marked plaintiff’s Exhibit 2, was passed by the Borough of Beaver Falls. This ordinance was introduced into council on July 22, 1927, and advertised as required by law on July 24, 1927. That is the substance of all the evidence produced on the part of the plaintiff. The attorneys for the defendant produced no evidence, but after the testimony was closed they renewed their motion for the dissolution of the injunction, which was overruled by the court and exception granted to the defendant.

The evidence as produced by the plaintiff does not substantiate the necessary averments contained in the bill as filed, as there is no evidence that the plaintiff has been convicted of any violation of the ordinance in question; nor that he has made any effort to maintain his rights by appealing from any such conviction; nor that he has appealed from the ordinance as passed; nor is there any evidence that the plaintiff has been damaged or continually harassed and interfered with in the construction of his plant. The plaintiff, upon hearing, must introduce testimony which clearly shows that he is entitled to a preliminary injunction; otherwise the strong arm of the law by preliminary injunction will not be stretched out for his relief.

Even the record of this court at No. 4, September Term, 1927, in Equity, was only offered by the plaintiff for the purpose of fixing the time when he was enjoined by certain of the citizens of the Borough of Beaver Falls from erecting his tanks, and, under the bill as filed in this case and the testimony as introduced, we are satisfied that the plaintiff is not entitled to the continuance of the preliminary injunction.

We need only discuss at the present time one of the reasons alleged by the defendant which requires the dissolution of the injunction, and that is, that no officers of the defendant are named in the bill of complaint. The only defendant in this bill is the Borough of Beaver Falls; and the plaintiff asks the court upon such a bill to restrain the defendant, its officers, agents, employees and all other persons, from interfering with him in the erection of his storage tanks, etc. As we understand the law; equity will not act, neither by injunction or otherwise, unless all parties who are interested or who are to be affected by the bill are made parties to the proceeding. This general principle is set forth in 1 Pomeroy’s Equity Jurisprudence, § 114, as follows: “The governing motive of equity in the administration of its remedial system is to grant full relief and to adjust in the one suit the rights and duties of all the parties which really grow out of, or are connected with, the subject-matter of that suit. Its fundamental principle concerning parties is that all persons in whose favor or against whom there might be a recovery, however partial, and also all persons who are so interested, although indirectly, in the subject-matter and the relief granted, that their rights or duties might be affected by the decree, although no substantial recovery can be obtained either for or against them, shall be made parties to the suit.”

The Town Council of the Borough of Beaver Falls, the burgess and the chief of police would undoubtedly be affected by any decree which might be made in this case, and they are not made parties to this proceeding. In the case of Geesey v. City of York, 254 Pa. 397, this same question was raised in the court below and decided adversely to the defendant. Wanner, P. J., in dissolving the preliminary injunction, said, inter alia: “The defendants’ answer asks that the plaintiffs’ bill be dissolved for want of proper and necessary parties thereto, because the paving contractor whose compensation was to be paid out of the proceeds of the collection of these claims would be injured by the granting of the injunction prayed for. This objection, which was insisted upon by defendants’ counsel at the hearing in this case, goes to the jurisdiction of the court, and, if sustained, would be fatal to any further proceedings in this case on the present state of the record. It is a well-settled rule in courts of equity that all parties who would be adversely affected by the decree prayed for must be brought into court as parties of record before such decree can be made: Findley v. Warren, 244 Pa. 64; Ebling v. Schuylkill Haven Borough, 244 Pa. 505; Monessen Borough v. Monessen Water Co., 243 Pa. 53; Hartley v. Langkamp & Elder, 243 Pa. 550; Hoffman & Oster v. Hartman & Sener, 7 Lanc. Law Rev. 137; Petitt v. Baird, 10 Phila. 57; Thomas v. Boswell, 14 Phila. 197; Scholl v. Schoener, 1 Wood. Dec. 200.”

This was affirmed in a per curiam opinion of the Supreme Court, and the bill was dismissed.

For another reason, also, we think that the preliminary injunction would have to be dissolved, and that is because the plaintiff has a complete and adequate remedy at law'which he can and should pursue; and under those circumstances a court of equity will not act. However, as the matter is before us now only upon a motion to dissolve the injunction, we cannot dismiss the bill: Lyndall v. High School, 19 Pa. Superior Ct. 232; Mauser v. Lerch, 7 D. & C. 242, 244.

Order. — Now, Aug. 24, 1927, the preliminary injunction issued in this case is dissolved.

Same day, an exception granted and bill sealed to the plaintiff.

Prom Wm. P. Schutte, Beaver, Pa.


author: Culver, P. J.,

text:
    Wells Township School Directors.

      School law — Directors—Filling of vacancies in school board — School Code —Act of May 18,1911, P. L. 309.

    1. Where a board of school directors consists of five members and there are two vacancies, two members in the absence of the third have not authority to meet and fill one of the vacancies.
    2. Section 308 of the School Code must be construed as meaning that a quorum shall consist of the majority of the whole board, and not a majority merely of the qualified members.
    3. The action of the two members in filling a vacancy when three members were in existence was not justified by section 214 of the Code, which provides that ‘‘the remaining members of the board of school directors shall, by a majority vote thereof, fill such vacancy within thirty days thereafter.”
    4. The appointment to fill vacancies is the transaction of "business” within the meaning of section 308 of the Code.
    Appointment of two directors in the Wells Township School District. C. P. Bradford Co., Dec. T., 1927, No. 182.

      R. A. Mercar, for petitioners.

      H. K. Mitchell, David J. Fanning and Lilley & Wilson, for respondents.
    Nov. 27, 1927.
   Culver, P. J.,

This proceeding is an application by more than ten resident taxpayers of the School District of Wells Township,- asking this court to appoint two school directors to fill the vacancies in the school board of said district caused by the resignation of Levi E. Coke and S J. Young. No question has been raised to the court’s jurisdiction in the matter, and all parties concede that the court has jurisdiction in the matter and have joined in a request that it be disposed of by the court without unnecessary delay.

On Sept. 12, 1927, the School Board of the Wells Township School District consisted of five members, and on that day two members resigned, leaving three fully qualified members of the board, and neither of said vacancies was filled at that meeting.

Oct. 1, 1927, was a regular meeting day for said school board, and at that meeting but two of the three directors attended; the third director, G. W. Luckey, who was vice-president of such board, did not attend. The other two directors, R. E. Brewer and S. J. Brasted, were the only directors attending such meeting, and they at such meeting appointed one N. E. Benson as a director to fill the vacancy caused by the resignation of said S. J. Young.

On Oct. 12, 1927, at a special meeting, which we shall treat as regularly and lawfully called, and of which the vice-president, G. W. Luckey, had legal notice, was held with R. E. Brewer, S. J. Brasted and the said N. E. Benson present, the said G. W. Luckey, vice-president, being absent from such meeting, and at this meeting with the three mentioned present and acting, one G. W. Ayers was appointed a school director to fill the vacancy caused by the said resignation of said Levi E. Coke.

All parties to this proceeding concede and agree that the only question for this court to determine is whether or not the appointment by two members of the school board at a regular meeting attended only by two members, when three members were in existence, of N. E. Benson was valid, it being conceded by all that if his appointment as school director was a nullity, then the subsequent appointment of G. W. Ayers was likewise a nullity.

The solution to the question involved depends upon the interpretation to be given of the School Code, and, in our opinion, the important sections are those reading as follows:

(a) Section 205. “In each school district of the fourth class, there shall be five (5) school directors elected at large at the municipal election held in November, etc.”
(b) Section 308. “A majority of the members of a board of school directors shall be a quorum. If less than a majority is present at any meeting, no business shall be transacted at such meeting, but the members present may adjourn to some stated time: Provided, however, that if there shall be a minority of the board present, because a majority of the seats are vacant, then in such case the minority members at any such meeting may fill vacancies in the manner provided in this act.”
(e) Section 214. “In case any vacancy shall occur in any board of school directors in any school district of this Commonwealth by reason of death, resignation, removal from the district or otherwise, such vacancy shall, in a school district of the first class, be filled for the unexpired term by the Court of Common Pleas of the county in which such school district is situated; and in a school district of the second, third and fourth classes, the remaining members of the board of school directors shall, by a majority vote thereof, fill such vacancy within thirty (30) days thereafter. In a district of the second, third or fourth class, the person selected to fill such vacancy shall hold his office, if the term thereof so long continues, until the first Monday of December after the first municipal election occurring more than thirty (30) days after his appointment; at which election an eligible person shall be elected for the remainder of the unexpired term: Provided, that if, by reason of a tie vote or otherwise, such vacancy shall not have been filled by the board of school directors as is herein provided within thirty (30) days after such vacancy shall have occurred, the Court of Common Pleas of the proper county, upon the petition of ten or more resident taxpayers, shall fill such vacancy by the appointment of a suitable person for the unexpired term.”
(d) Section 215. “In case vacancies should occur whereby the offices of a majority of the members of any board of school directors, other than board of school directors of a school district of the first class, should become vacant, the remaining members shall fill such vacancies one at a time, giving the new appointee such reasonable notice of his appointment as to enable him to meet and act with the then qualified members of the board in making further appointments, until a majority of the board has been secured, when the said majority shall fill the remaining vacancies at a meeting attended by the majority of said board, such appointees to receive a majority of the votes of the members present at any such meeting. The persons selected to fill such vacancies shall hold their offices, if the terms thereof continue so long, until the first Monday in December after the first municipal election occurring more than thirty (30) days after their appointment, at which election eligible persons shall be elected to fill the unexpired terms.”

We mention and quote the above-mentioned section 215 because it appears to provide the procedure followed 'by the two members of the school board at the regular meeting Oct. 1st, in appointing N. E. Benson a school director, but we believe it has no application under the facts in this case, for the reason that it provides the procedure to be followed “in case vacancies should occur whereby the offices of a majority of the members of any board of school directors, other than board of school directors of a school district of the first class, should become vacant;” and it is agreed by all parties that vacancies in the offices of a majority of the members of this school board did not exist; therefore, we think this section has no application. If the acts of the two school directors at the regular meeting Oct. 1st can be justified, it must be by virtue of section 214.

It is our judgment that such action cannot be justified under section 214, for the reason that a quorum of the school board was not present. The statute provides that this school board shall consist of five members. The smallest number forming a quorum would be three. There were three members legally elected and qualified and acting as school directors, and in order that any business could be legally transacted, it was necessary that these three be present at such meeting. Again adverting to section 308: “A majority of the members of a board of school directors shall be a quorum. If less than a majority is present at any meeting, no business shall be transacted at such meeting, but the members present may adjourn to some stated time: Provided, however, that if there shall be a minority of the board present, because a majority of the seats are vacant, then in such case the minority members at any such meeting may fill vacancies in the manner provided in this act.”

Here we have an express legislative injunction that no business shall be transacted at any meeting unless a majority of the board be present, save only under conditions covered by the proviso, i. e., when a majority of the seats in the school board are vacant (which was not the case here), when the minority members may fill such vacancies in the manner provided by section 215.

Respondents in this case contend that section 308 must be construed as meaning that a quorum shall consist of a majority of the qualified members of the school board and not a majority of the whole board as declared by the statute. We cannot so construe this section. It seems clear to us that the legislative declaration is that a school board shall consist of five members, and when the act refers to “a school board,” it means a board of five members. If the construction contended for by respondents be correct, there is no necessity for the proviso in section 308, as in any case where there are but two members of a school board in existence, these two members would necessarily constitute a majority of the members and could, therefore, transact business. We think such contention is unfounded and that it is only when a majority of the entire board is present that business of any character can be transacted if a majority of the entire board is in existence.

Respondents further contend the action of the two members at the meeting of Oct. 1st is justified by section 214 by the following language: “The remaining members of the board of school directors shall, by a majority vote thereof, fill such vacancy within thirty days thereafter,” contending that the language “by a majority vote thereof” means a majority vote of the three members and not of the entire board. We do not so construe this language. If the legislative intention had been that a majority vote of the remaining members should fill such vacancies, the word “thereof” would have been omitted and the section would then have read, “the remaining members of the board of school directors shall, by a majority vote, fill such vacancy within thirty days thereafter.” We are of opinion that the word “thereof” refers back to the word “board” and means a majority vote of the board and not a majority vote of the remaining members; but be this as it may, it does not help respondents if our interpretation of section 308 be correct; because if the correct interpretation be that in this school district, where three qualified members existed, these vacancies could have been filled by a majority vote of the members, i. e., by the two members, we think such could only have been done at a meeting when the third director was present, because without the presence of the third director there was not a majority of the board, and, consequently, no quorum, and, therefore, no business could be legally transacted.

Respondents contend that the appointment to fill vacancies is not the transaction of “business” within the meaning of section 308. We believe it is. This position is strengthened by the proviso in section 308 which authorizes less than a quorum to transact such business of filling vacancies when a majority of the seats are vacant, but only then until a sufficient number of vacancies are filled to create a majority of the board, and so soon as such condition arises, the power of the minority to act alone ceases, and they can further act only when a majority or quorum is in session.

We have found no case, nor has our attention been called to any, construing this act of assembly in relation to the question now being considered, but many analogous cases have been cited, among them being Fisher v. Harrisburg Gas Co., 1 Pearson, 118, where it is held where the board of directors is fixed at a certain number, there must be a majority of that number present in order to constitute a quorum, even if the board is not full at the time, the court further saying: “What shall form a quorum is not changed by diminution in the numbers. If four were required to be present when six formed the board, the same number must be in attendance when there are but five directors ; and should they be reduced to four, all must be met together to perform any valid act.”

In Craig v. First Presbyterian Church, 88 Pa. 42, it is said: “It may be asked, however, what is meant by the majority? Does it mean the concurrence of the major part of those who happen to be present at a regular corporate meeting, or does it mean a concurrence of a majority of the whole body? There is this distinction between a corporate act to be done by a definite number of persons and one to be performed by an indefinite number. In the first case, it is to be observed that a majority is necessary to constitute a quorum and that no act can be done unless a majority be present.”

In Lemoyne Borough Councilmen, 15 Dist. R. 241, Mr. Justice Sadler wrote a very comprehensive opinion, citing many authorities sustaining the proposition that nothing less than a majority of the whole number of councilmen could constitute a quorum and that in a body of seven councilmen where two vacancies existed, leaving five qualified members, three of such members did not constitute a quorum.

We find nothing in Redstone Township School District, 284 Pa. 325, cited by respondents, in conflict with this position. In sustaining the legality of the action of the school board in that case, Mr. Justice Sadler, on page 329, significantly says: “Capuzzi was present, though not voting, but in each case a quorum of the whole number of the directors acted.”

We have examined all the authorities cited by the respective parties and find none in conflict with the views we are expressing herein.

We are aware that the Department of Education at Harrisburg gave a different interpretation in the present case from ours, and we would be glad to follow its interpretation if we could do so, but, under all the facts as they are agreed upon in this case, we cannot.

Respondents have urged, with considerable earnestness, that such interpretation as we are giving the act makes it possible, in cases like the one at bar, for one director, by remaining away from the meetings, to prevent the filling of a vacancy within thirty days, thereby taking that privilege from the members of the school board to the Court of Common Pleas. This is apparently true, but, as we interpret the law, it is now our duty to do what the remaining board of school directors should have done, but failed. The law has wisely provided that where vacancies exist, the remaining members of the board may fill such vacancies, and in the event of vacancies in a majority of the seats of the school board, the remaining minority may fill the same to such extent that a majority of the whole board shall come into existence, thereby making it possible for a quorum to meet and act, and such majority may then fill the remaining vacancies if they act, for section 215 provides, even in such cases, that when a majority has been secured, “the said majority shall fill the remaining vacancies at a'meeting attended by the majority of said board, such appointees to receive a majority of the votes of the members present at any such meeting.” It seems, therefore, plain that even in cases in which vacancies in offices of a majority of the members of any board of school directors exist, no appointment to fill such vacancies can be made by the minority at a meeting of less than a majority, save only until a sufficient number of vacancies have been filled to constitute a majority of the board, when the remaining number shall be filled, as section 215 provides, “at a meeting attended by the majority of said board.” In other words, even in such cases, so soon as a majority is brought into existence, a meeting for the filling of the remaining vacancies must be a meeting at which such majority is in attendance in order that a vote of the minority number may fill the remaining vacancies. In súch cases, it is necessary that a majority of the members be present, but is not necessary that a majority of the members agree upon the appointee, as the provision in section 215 is: “When the said majority shall fill the remaining vacancies at a meeting attended by the majority of said board, such appointees to receive a majority of the votes of the members present at any such meeting.” Here, again, the statute makes clear the distinction between “a majority of said board” and “a majority of the members present.”

We are of opinion that, under the agreed facts in this case, the action of two of the school directors of Wells Township School District at a regular meeting Oct. 1, 1927, at.which but two members were present, when three members were in existence, was illegal, invalid and void.

We further find that more than thirty days have elapsed since the said two vacancies occurred in the said school district and that the School Board of Wells Township has failed to fill such vacancies.

We have had presented to us the petition of 174 resident taxpayers of Wells Township, asking for the appointment of two persons to fill the said two vacancies in the Board of School Directors in the Township of Wells.

The School District of Wells Township is a school district of the fourth class.

The term of S. J. Young, who resigned, will expire Dec. 1, 1927, and the term of Levi E. Coke, who resigned, will expire Dec. 1, 1931.

The petition presented, asking for the appointment of two school directors to fill the vacancies caused by the two resignations mentioned, does not suggest whom the petitioners desire appointed. Respondents urged at the argument of this case that the construction we are giving the act would take' the naming of the school directors from the people of Wells Township School District and place it in the hands of the court. We are desirous of the people of this school district electing their school directors, and have examined the official election returns from that district, filed with the Clerk of the Court of Quarter Sessions of this county, for the election held Tuesday last, in which the electors of Wells Township voted for school directors, and we ascertain that Glenn Noble received 144 votes for a six-year term, and Henry Terwil-liger received 148 votes for a four-year term, and A. D. Curren 88 votes for a six-year term, and William Queal received 78 votes for a six-year term, and Ray Brewer received 61 votes for a six-year term. Under the conditions existing in said school district, two directors for a full six-year term were to be elected, and had the appointment to fill the vacancy caused by the resignation of Levi E. Coke been a valid one, the appointee would have held until the first Monday of December, 1927, and the electors of the school district would have elected on Nov. 8, 1927, one director for a term of four years, and this they attempted to do, and Henry Terwilliger received a very large plurality for such term. We have, therefore, decided to appoint, as our appointment will be to fill the unexpired terms of the two directors who resigned, the men whom the electors elected for the same terms at the municipal election held Nov. 8, 1927, to wit, Glenn Noble to fill the vacancy caused by the resignation of S. J. Young, or until Dec. 1, 1927, and Henry Terwilliger to fill the vacancy caused by the resignation of Levi E. Coke, or until Dec. 1, 1931.

Order.

And now, to wit, Nov. 27, 1927, after due and careful consideration, the court finds that the School District of Wells Township is a school district of the fourth class.

(a) That since Sept. 12, 1927, vacancies have existed in the offices of two school directors of said district.

(b) That the term in which one of said vacancies exist will expire Dee. 1, 1927, and the term in which the other vacancy exists will expire Dec. 1, 1931.

(c) That more than thirty days have elapsed since the happening of both said vacancies, and that the said vacancies have not been filled by the board of school directors of said district.

(d) That the action by the two school directors, S. J. Brasted and Ray Brewer, at the regular meeting Oct. 1, 1927, in endeavoring to appoint N. E. Benson a school director, was illegal, invalid and void, and also that the action of S. J. Brasted, Ray Brewer and N. E. Benson at the special meeting of Oct. 12, 1927, in endeavoring to appoint G. W. Ayers a school director, was likewise illegal, invalid and void.

The court hereby appoints Glenn Noble a school director of the School District of Wells Township to fill the vacancy caused by the resignation of S. J. Young for the term expiring Dec. 1, 1927, and the court appoints Henry Ter-williger a school director for the School District of Wells Township to fill the vacancy caused by the resignation of Levi E. Coke for the term expiring Dec. 1, 1931.


author: Wilhelm, P. J.,

text:
    Jenkins’s Estate.

      Husband and wife — Desertion — Separation — Decedents’ estates — Act of June 7,1917, P. L. 429.

    1. In order to deprive a wife of her interest in her husband’s estate under the intestate laws because of desertion, the character of the desertion must have been such that under the law it would have been sufficient to entitle the husband to a decree of divorce against his wife.
    2. A separation followed by a continuation of the sexual relations between husband and wife is not a malicious and wilful desertion. Under such circumstances, the fact that they lived in separate homes is of no moment.
    3. Where a husband consents to his wife’s going, the status is one of mutual separation and the wife cannot be charged with wilful desertion until the husband in good faith has requested her to return.
    Audit of the first and final account of P. C. Fenton, executor of the last will and testament of Taliesin Jenkins. O. C. Schuylkill Co., March T., 1927, No. 34.

      James A. Dolphin, for accountant and legatees.

      John F. Whalen and George Ellis, for widow.
    Nov. 7, 1927.
   Wilhelm, P. J.,

This audit came on to be heard April 26, June 7 and 13, 1927, pursuant to due notice.

From the evidence we find the following facts:

1. Taliesin Jenkins died on or about May 22, 1926, testate, married, having disposed of his estate by last will and testament. After giving directions as to the payment of his debts and funeral expenses and the care of his burial lot, the testator provided that the residue of his estate be divided into three equal parts or shares, and he bequeathed one equal part or share to his granddaughter, Christley Couch Moyer, one equal share or part to his grandson, Charles Couch, and one equal part or share to his adopted son, Stanley Jenkins.

It appears, however, that no record can be found of the legal adoption of Stanley Jenkins.

2. The account contains a principal personal property account showing a balance for distribution of $7082.77, and an income account containing a balance for distribution of $187.43.

3. The inheritance tax due the State of Pennsylvania has not been paid, and the share of the principal of Stanley Jenkins should be charged with collateral inheritance tax to the amount of 10 per cent., and the balance of principal of the estate with direct inheritance tax to the amount of 2 per cent., and the taxes awarded to the Commonwealth are payable out of the principal account.

4. Rhoda Jenkins, widow of testator, filed her election to take against the will, and this raises the only legal question to be decided, because the legatees named in the will allege that Rhoda Jenkins wilfully and maliciously deserted her husband for one year and upwards previous to his death, and that, therefore, under section 6 of the Act of June 7, 1917, P. L. 429, she is barred of her right to recover any title or interest in his real or personal estate after his death.

The decedent and Rhoda Jenkins were married Aug. 7, 1913, and resided at William Penn, this county, until October, 1919, at which time they moved to Reading, Berks County, and lived in a house purchased by the testator or belonging to his wife. In December, 1919, or thereabouts, the testator returned to William Penn and remained there until March, 1920, about which time Rhoda Jenkins swore out a warrant for his arrest, charging him with non-support. After the hearing upon the non-support charge in the Court of Quarter Sessions of Berks County, the testator was discharged because it is alleged Rhoda Jenkins said at the time of the hearing “she would never come to William Penn; she would live in Reading.”

In the year 1920 the testator went to Europe, and upon his return, hearing that his wife was at the home of her daughter in Shenandoah, at the suggestion of the daughter’s husband, Morgan Davis, he went to the Davis home, and the greeting between the testator and the wife was friendly and affectionate. They occupied the daughter’s spare bed-room for one night, and the next morning they left the home together.

Between the years 1920 and 1924, it is established that the testator visited his wife, Rhoda Jenkins, at Reading on several occasions. He took her to Atlantic City for a vacation there, and this visit appears to have occurred in 1923.

In the year 1924, the testator visited his wife on three different occasions, according to some witnesses, once in July, once in September and again in November for two weeks before Thanksgiving Day, and one witness said he was there practically all the time between July and Thanksgiving Day, 1924, after which he returned to Schuylkill County, but again returned in June, 1925, and this appears to have been his last visit, and in less than a year subsequent to his last visit the testator died at the home of his granddaughter, in this county.

The separation of this man and wife occurred in Reading in the year 1919, when he left the home they had established to return to Schuylkill County, and it does not appear that his leaving was unfriendly or the result of a quarrel or misunderstanding. There is no evidence to show that the testator was not satisfied with the wife remaining and living in Reading, but it has been established that the wife was dissatisfied with this arrangement, because the testator did not support her, as was his duty. This dissatisfaction on the part of the wife seems to have subsided, because it is established that, after his return from Europe, friendly relations were resumed, beginning with their meeting and cohabiting at Shenandoah; that when they were together, they lived as man and wife, as married people usually do, and this manner of living separate and apart, he in Schuylkill County and she in Reading, seems to have continued by mutual consent, and was an arrangement that was satisfactory to both of them.

There is no testimony subsequent to the court trial in 1920 showing that the husband ever provided a home in this county after he left Reading, or that he invited and demanded that she live with him in the home he provided or would provide for her, but, on the other hand, he seemed to be well content with the arrangement, because none of the several witnesses ever heard this husband and wife discuss making a change in their manner of living, or heard the testator express dissatisfaction with his wife living in Reading. His residence after he left Reading wap with his granddaughter, and so continued to the time of his death. If the declaration of the wife in the year 1920, in the Court of Quarter Sessions, at Reading, to the effect that she would not leave Reading, amounted to a wilful and malicious desertion, the desertion was condoned by her husband when he continued the marriage relation over the succeeding years.

A separation followed by a continuation of the sexual relation between husband and wife is not a malicious and wilful desertion. Under such circumstances, the fact that they lived in separate homes is of no moment: Arnout’s Estate, 283 Pa. 49.

Where a husband consents to his wife’s going, the status is one of mutual ' separation, and she cannot be charged with wilful desertion until he in good faith has requested her to return: Arnout’s Estate, 283 Pa. 49.

The weakness of the contention on the part of the legatees is the assumption that the living apart of this husband and wife amounted to a desertion; but when consent as to the living apart is apparent, the elements of a wilful and malicious desertion are lacking.

In order to deprive a wife of her interest in her husband’s estate under the intestate laws because of desertion, the character of the desertion must have been such that, under the law, it would have been sufficient to entitle the husband to a decree of divorce against his wife: Hahn v. Bealor, 132 Pa. 242; Hayes’s Estate, 23 Pa. Superior Ct. 570.

• The separation between the testator and his wife was due to the fact that the husband left their home, and it does not appear that he ever provided, or offered to provide, another home in which they should live; His declaration in March, 1920, in the Court of Quarter Sessions of Berks County, in his defense at her suit for support, that he would provide a home in Schuylkill County, was not an offer to her, but a matter of defense in her suit against him. He never subsequently renewed the offer or demanded that she live with him in a home he would provide; therefore, he was not in a position to successfully maintain an action for divorce against her; and if he could not establish a.wilful and malicious desertion on her part in a suit for divorce, his legatees are in no better position to defeat her claim under the intestate laws.

The undisputed testimony shows that the relations between the testator and his wife were amicable and friendly and pleasant, with the exception of the one incident when she had him arrested for non-support. They greeted each other affectionately when they met in Shenandoah in 1920. In his subsequent visits to her in Reading, there is no evidence of. dissatisfaction on the part of either. On the contrary, they seemed to be very companionable, going out in Reading to take meals together, attend the Fair, visited a mountain resort and sojourning at Atlantic City and Ocean City; and it appears that during these visits the testator was in a happy frame of mind; and there is no indication that he was not satisfied with their mode of living, and there does not appear to have been a single note of discord between this husband and wife after March, 1920.

In Braum’s Estate, 88 Pa. Superior Ct. 109, it is said: “The mere fact that the husband and wife had been living apart was not controlling. Desertion is an actual abandonment of matrimonial cohabitation with an intent to desert without cause or the consent of the other party. Separation is not desertion. The vice of appellant’s contention is the assumption that the separation amounted to a desertion by the wife. The court below found as a fact that the separation in this case was by mutual consent and that the decedent never made any effort to induce his wife, the appellee, to resume marital relations. This finding is based upon competent evidence, and nothing appears in the case which would warrant us in disturbing it. The separation being by consent lacked the elements of a wilful and malicious desertion.”

In the same Braum’s Estate, on a petition for review [88 Pa. Superior Ct. 109], it appears that the affidavits recited the fact that the wife expressed a desire that she did not want to live with her husband and called him vile names, and, after she had left him, said “she did not want to live with him and did not want his money,” and on the night before she left she said to her husband she was going to leave him; and in affirming the action of the lower court, upon the petition for review, the Superior Court said: “Moreover, all the allegations contained in the several affidavits submitted may be accepted as verity and still they would not show that the finding heretofore made by the Orphans’ Court upon competent evidence, that the separation in this case was by mutual consent, was incorrect. Of course, if they separated by mutual consent, she was willing to leave him. She might have declared her intention; still that would not prove that the separation was not con-sentable. The consent was the act of both. She was willing to go and he was willing to have her go.”

Horace Wink, a neighbor, testified that he saw the testator at the home of his wife in June, 1925; therefore, a full year did not lapse between the time of that visit and the date of the death of the testator. On account of the meagre testimony as to this visit in June, 1925, it cannot be said definitely that this couple had marital relations then, but it is undisputed that the connubial relations existed as late as November, 1924. Desertion cannot be charged as long as the sexual relation continues. The desertion not having occurred before November, 1924, it is impossible to say when, after that date, the desertion occurred; and if one cannot point to the time when a desertion took place, it follows that there was no desertion; and this husband and wife continued by mutual consent to live separate and apart after November, 1924, as was their mode of living before that time.

The testimony of Rhoda Jenkins, the widow, was objected to at the hearing and the objection overruled, and while it stands upon the record, it has not been considered in marshaling the facts; and the facts found are independent of any testimony of Rhoda Jenkins.

It is found, therefore, that section 6 of the Act of June 7, 1917, P. L. 429, which reads as follows, “No wife who shall have, for one year or upwards previous to the death of her husband, wilfully and maliciously deserted her husband shall have the right to claim any title or interest in his real or personal estate after his decease, under the provisions of this act,” does not defeat the right of Rhoda Jenkins to participate in his estate under the intestate laws, because it does not appear that Rhoda Jenkins wilfully and maliciously deserted her husband.

5. The balance of principal in the hands of the accountant is distributable under the intestate laws to the widow, who has elected to take against the will, and under the terms of the will as to the legatees named therein, and there is awarded to Rhoda Jenkins, one-half, less tax; to Christley Couch Moyer, one-sixth, less tax; to Charles Couch, one-sixth, less tax; and to Stanley Jenkins, one-sixth, less tax. The balance in the income account is distributable in like proportion, and of the balance of income remaining there is awarded to Rhoda Jenkins, one-half; Christley Couch Moyer, one-sixth; Charles Couch, one-sixth; Stanley Jenkins, one-sixth.

From M. M. Burke, Shenandoah, Pa.