author: Hughes, P. J.

text:
    Brown’s Estate.

      Decedents’ estates — Partnership — Jurisdiction, O. C. — Extinct partnership — Firm claim against deceased partner’s estate — Act of March 26, 1915.

    1. The Orphans’ Court has no jurisdiction to determine the iaet of a partnership.
    2. The Orphans’ Court cannot entertain jurisdiction of a claim by a partner as such against a deceased partner’s estate.
    3. A claim by a person who asserts that he was a partner of a decedent can only be considered by the Orphans’ Court after the fact of the partnership has been, ascertained by a court of competent jurisdiction, and after the partnership aKairs shall have been settled by such court and a balance found to have been due by the decedent to the claimant.
    4. Under the Act of March 26, 1915, P. L. 18, upon the death of all the members of a partnership, the law casts upon the personal representatives of the last surviving partner the duty of winding up the affairs of the firm.
    5. Such representatives have the right to wind up the partnership affairs, including power to litigate, if necessary, without interference from the personal representatives of the other deceased partner or partners.
    6. The Orphans’ Court has jurisdiction to pass upon the title and ownership of personal property listed in the inventory of a decedent’s estate, but claimed by others, when such claimants submit themselves to the jurisdiction of the court, and elect the same as the tribunal to adjudicate their claims.
    Petition to enjoin sale and compel more detailed inventory. O. C. Washington Co.

      Murdoch & Sons and W. F. Smith, for petitioner.

      D. M. Anderson and Acheson & Crumrine, for respondent.
   Hughes, P. J.

Walter J. Brown, a resident of the Borough of Donora, Washington County, Pa., died intestate on Nov. 17, 1920, in possession of considerable real and personal property, and survived by three children and a widow, Izabelle Brown, to whom the Register of Wills of this county, on Dec. 4, 1920, issued letters of adminstration upon his estate. The said admin-istratrix, in due course of her administration, caused an inventory and appraisement of the personal estate of the decedent to be made, the same being of record in said register’s office in Inventory Book No. 26, at page 221, and totaling in the aggregate $20,878.63, the principal item of which reads: “Jewelry Store, McKean Avenue, Donora, Penna., $17,849.70.” The said administratrix has advertised and proposes to sell at public sale in bulk, on Feb. 9, 1921, on the premises at No. 6691 McKean Avenue, Donora, Pa., the said jewelry store, contents and fixtures.

Henry R. Brown, father of the said Walter J. Brown, deceased, died, a resident of Belmont County, Ohio, on Feb. 20, 1920, leaving a last will and testament, since his death duly probated, letters testamentary thereon having been issued under date Jan. 6, 1921, to his widow, Elizabeth J. Brown. Subsequently an exemplication of the record of the said will and its probate was filed in the Register’s Office of Washington County, Pa., whereupon ancillary letters of administration c. t. a. were issued under said will to The Union Trust Company of Washington.

The said ancillary administrator has presented to this court its petition (which is the foundation of the controversy at bar), wherein it claims that at the death of the said Henry R. Brown, he and his son, the said Walter J. Brown, were, and for some years prior thereto had been, partners — their firm owning and operating the said jewelry store; that after the death of the said Henry R. Brown, the said store had been operated for the firm by the said Walter J. Brown, as surviving partner, down until his death, which occurred, as aforesaid, on Nov. 17, 1920; that the said partnership business and affairs had never been wound up or settled; that, nothwithstanding that said store, its stock and fixtures, so as aforesaid, belonged to the said partnership, the said Izabelle Brown, as administratrix of the estate of the said Walter J. Brown, deceased, claimed the exclusive ownership of the said store, stock and fixtures to be in her decedent, had so as aforesaid included the same in the official inventory and appraisement of his estate, and proposed to make said public sale thereof as his absolute property, said petitioner complaining that the said inventory and appraisement in the said Walter J. Brown estate is not sufficiently detailed, rendering it impossible for the petitioner to determine whether or not the same is fair and accurate, and that a loss will result to the said Henry R. Brown estate if the said administratrix of the Walter J. Brown estate is permitted to sell and dispose of the said store and contents, until a more true and perfect inventory and appraisement shall have been made and before the rights of the estates of the said partners shall have been adjudicated in a proper court; said petition concluding with prayers that this court enjoin and restrain the said proposed sale of the jewelry store, stock and fixtures until further order, and that the said administratrix be required to have made and filed a proper detailed inventory and appraisement of the estate of the said Walter J. Brown, deceased.

A citation having been issued under the said petition, the said Izabelle Brown, as such administratrix, in due course filed her answer, wherein she admits her plan to make public sale of the said jewelry store and contents as alleged; avers her right so to do because the same belongs exclusively to the estate of her decedent, the said Walter J. Brown; denies that any such partnership ever existed between her deceased husband and his father; denies that either such a partnership or the said Henry R. Brown or his estate own, or at any time have had any interest in, the said store and contents, either directly or indirectly; denies that the said inventory and appraisement is insufficient or incorrect, except for certain specified personal effects admitted to have been erroneously omitted therefrom; and denies that the petitioner, as the personal representative of the estate of the said Henry R. Brown, has any standing in law to criticise or object to the said inventory and appraisement, its form or substance, or to interfere with or intermeddle in the estate of Walter J. Brown, deceased, or its administration; said respondent, therefore, praying that the said petition and citation issued thereunder be dismissed.

A replication having been filed, the matter came on for a hearing. Before the taking of any testimony, counsel for the respondent, Izabelle Brown, administratrix, made a formal motion that the petition be dismissed for the averred reason that the record shows that the petitioner has no legal standing to maintain the proceeding, pointing out that the application is made for the estate of the said Henry R. Brown, deceased, in the exclusive capacity of alleged partner of the said Walter J. Brown, deceased, the existence of which partnership is denied in the answer, this court having no jurisdiction or power to determine the fact of such partnership or to inquire into its affairs and operations, if such partnership actually did exist as claimed.

While we recognized at the hearing the legal merits of this motion, we considered it prudent then to overrule the same pro forma and thereby allow the testimony to be taken (there being then in attendance many witnesses summoned by both sides — several from a distance), so that unnecessary expense of trial might be saved if a decision adverse to the petitioner should be made and later found erroneous. The petitioner thereupon called its witnesses, whose testimony tended to show the existence of the partnership alleged and the ownership by that partnership of the said jewelry store and contents. Nearly all of this testimony was objected to by respondent’s counsel on the ground of incompetency of the'witnesses so testifying. All of said objections were, against our convictions, overruled pro forma, to the end that, for the reason suggested, all of the petitioner’s ease might at said hearing be brought upon the record. The respondent offered no testimony, choosing to rest her defence on the legal grounds set up in her answer and in her counsel’s motion aforesaid.

We are now of the opinion that it is unnecessary for us here to pass upon the said objections to testimony or to the competency of the witnesses who so testified, or even to review or consider any of such testimony or evidence produced at the hearing, believing that the same is wholly immaterial to the issue at bar, having reached the conclusion that the petitioner is presently without legal standing to maintain this proceeding or to have the relief prayed for.

Let it be observed that the application here made is so made by the petitioner as the personal representative of the estate of Henry R. Brown, purely in its decedent’s capacity of alleged partner of Walter J. Brown, deceased, and is not made in any other capacity, such as creditor, heir, kin, devisee or legatee of the latter’s estate. If, then, the relief prayed for is to be granted, it will be so afforded the petitioner only on account of its decedent being a member of the alleged partnership with the respondent’s decedent, and not for any other reason or through any other capacity, or on account of any other relation or interest which Henry R. Brown or his estate might have in or to the estate of Walter J. Brown, deceased. But the existence at any time of such a partnership is emphatically denied by the respondent in her said answer, and such denial is repeated and continued in her counsel’s said motion to dismiss the petition. Now, before this court can recognize the standing or right of the petitioner as the personal representative of the said Henry R. Brown, deceased, to intermeddle in the administration of the Walter J. Brown estate, to say the least, the partnership relations must be judicially established; but the Orphans’ Court has no jurisdictional power to determine that fact — jurisdiction over such subject-matter belonging exclusively to another tribunal, to wit, the Court of Common Pleas: Miller’s Estate, 136 Pa. 349 (1890); Weigley v. Coffman, 144 Pa. 489 (1891); Mamaux’s Estate, 260 Pa. 514 (1918).

The existence of such a partnership being so denied by the respondent, it could only be after that fact had been judicially determined by the said court of competent jurisdiction, to wit, the Court of Common Pleas, that this, the Orphans’ Court, could recognize Henry R. Brown as such a partner. Now, as this eourt cannot presently recognize the application of Henry R. Brown’s estate, so presented and maintained exclusively under his alleged capacity of partner, and as the application is made through no other capacity, it necessarily follows that this court cannot at all in this application recognize the said Henry R. Brown or his personal representative, or the legal standing of either, to maintain this proceeding. We might at this point end the discussion; but, as the petitioner’s petition expresses matters of much importance to the estate which it represents, let us go into the matter somewhat deeper, so that our disposition of the matter may not appear illy-considered. Let us, then, suppose that the fact of partnership were either admitted or had heretofore been judicially established by a court of competent jurisdiction; then let us further assume that the allegations of the petition are true. Both Henry R. Brown and Walter J. Brown have died since the Partnership Act of March 26, 1915, P. L. 18, was approved and became effective, and, hence, their partnership (assuming that such a partnership existed) is to be governed and controlled by the provisions of that statute. The death of Henry R. Brown (the first of the partners to die) dissolved the partnership (clause 4 of section 31); the right and duty to wind up the partnership, therefore, falling on the surviving partner, Walter J. Brown (section 37), and, upon the latter’s death, that right and duty passed by law (section 37) to the legal representative of the said last surviving partner, Walter J. Brown, deceased, to wit, Izabelle Brown, the administratrix of his estate. It is thus seen that by operation of law the title of the specific property of the partnership became vested in such administratrix of the said last surviving partner (clause D, section 25) for the purpose of winding up the said partnership business and affairs, it then becoming her duty to convert the same into cash, collect in the assets and credits of the partnership, pay partnership obligations therefrom and then distribute the balance between the estates of the two partners. Thus, granting to be true all of the material facts set up in the petition, to wit, the existence of said partnership, that its affairs had never been wound up and that the jewelry store and stock are the property of the said partnership, we find that such specific partnership property, to wit, the said store and contents, in so being presently in the possession of Izabelle Brown, are in the proper hands prescribed by law, she being the personal representative of the surviving partner. Here, therefore, we observe Izabelle Brown occupying two trust offices, to wit, the one as administratrix of her deceased husband’s estate, and the other as liquidating agent of the said alleged partnership. Therefore, it is her province and duty to administer and settle up two separate and distinct estates, to wit, the one the individual estate of Walter J. Brown, deceased, and the other the estate of the alleged late partnership.

Now, let us turn to the petition, so that we may accurately perceive the precise matters of which the petitioner complains. It is at once seen that the real complaint is aimed against the conduct (or misconduct) of the said Izabelle Brown in administering the duties as liquidating agent of the said partnership and not as administratrix of her deceased husband’s estate. The true complaints of the petitioners are that she has not separated the partnership property and assets from the property and assets of the individual estate of Walter J. Brown, and that she proposes to convert such partnership property and assets to the use of the said Walter J. Brown estate, and sell the same, as though the same were the individual property of the said decedent. It will be noted that the petitioner does not in fact complain that she is committing any breach of duty or trust as administratrix of her deceased husband’s estate. A complaint of such nature would certainly be without merit, because everything complained of which she has done or proposes to do benefits, and will benefit, the estate of the said Walter J. Brown, deceased, although, indeed, such acts might be prejudicial to the estate of the said partnership, whose winding up the law has so as aforesaid cast upon her. The adding of the proceeds of the proposed sale of partnership goods and chattels (if indeed partnership property) to, and blending the same with, the funds of the Walter J. Brown estate, as the petitioner implies she proposes to do, would greatly enhance the total of the assets of her deceased husband’s estate to the manifest benefit of all persons interested therein, and in every capacity, whether as kin, creditor or distributee. Aside from the fact that the partnership estate would thus be depleted in augmenting the Walter J. Brown estate, such procedure would be for the benefit of the said Henry R. Brown and his estate, thereby furnishing it with more assets and greater security for its claim if it shall hereafter get into the position of a creditor of the said Walter J. Brown estate. It is thus seen that all of the matters of which the petitioner complains concern and are aimed at her alleged maladministration of her duties as liquidating agent of the defunct partnership and not as administratrix of her decedent’s estate. But of such matters so complained of this court cannot take cognizance, for jurisdiction over partnership affairs and the control of the liquidating agent are reposed by law exclusively in the Court of Common Pleas. It, therefore, follows that were the fact of partnership admitted or judicially established, the Orphans’ Court is without jurisdiction to examine into the matters in the petition complained of (to wit, partnership operations, business or affairs) or to grant the relief prayed for.

It must be admitted that at the death of the said Walter J. Brown, all of the specific chattels and property involved in this controversy were in his exclusive possession, the record before us showing that the same were included as his individual property in the official inventory and appraisement of his estate. This court must, therefore, presume that the said chattels and personal property belong to the decedent exclusively and in his own right, and not to the partnership or other person: Paxson’s Estate, 225 Pa. 204 (1909); Williams’s Estate, 236 Pa. 259 (1912), and Turner’s Estate, 244 Pa. 568 (1914).

Therefore, when she plans and proceeds to make sale of the said chattels and property of his estate, she is acting in the usual and proper course of administration. She is accountable to this court exclusively in her capacity as administratrix of her husband’s estate, and not in her capacity as liquidating agent of the alleged partnership or in any other capacity. Except in her capacity as administratrix, she is accountable to another court. Simply because she is answerable to this court in her capacity as administratrix, it does not follow that this court has any control over her in her individual or in any other trust capacity.

“But, it may be replied, here the executrix is in court, subject to its jurisdiction, and that this must be said as well of the property which is in her possession. True, as executrix, she is in court, but as Jennie M. Stroup individually she is not. The Orphans’ Court has jurisdiction over her in her representative character and over the property which she holds as executrix; but with respect to her individual rights of property, she stands as clear of the power of the court as any third party:” Cutler’s Estate, 225 Pa. 167, 171 (1909).

Now, as no complaint is made to the manner in which she is discharging her duties as administratrix of that estate, which is within the control of this court, why should this court be called upon to interfere with her administration thereof (all the matters complained of appearing to be beneficial to her decedent’s estate), and why should this court presume to direct and control her in the exercise of her duties of administering the partnership estate, which is not within the jurisdiction of this court, but is subject to the control of another tribunal, to wit, a court of competent jurisdiction, possessing adequate and appropriate means for affording the relief prayed for (if the petitioner should be found to be lawfully entitled thereto) ? We are clearly of the opinion that this court has no jurisdiction to intermeddle in the administration of the estate of such alleged partnership (if indeed one existed), or determine or adjudicate the matters complained of; all of which are within the exclusive power and control of the Court of Common Pleas: Miller’s Estate, 136 Pa. 349 (1890); Weigley v. Coffman, 144 Pa. 489 (1891), and Mamaux’s Estate, 260 Pa. 514 (1918).

But if it be argued that the present proceedings are designed merely to compel the severance and segregation of partnership property and assets from those belonging to the individual estate of Walter J. Brown, deceased, we are still of the opinion that this court is powerless to entertain the petition and grant the relief prayed for. We are mindful of that principle of law laid down in those cases whereof Miller’s Appeal, 84 Pa. 391 (1877); High’s Estate, 136 Pa. 222 (1890); Smith’s Estate, 144 Pa. 428 (1891); Gaffney’s Estate, 146 Pa. 49 (1891); Qualters’s Estate, 147 Pa. 124 (1892); Crosetti’s Estate, 211 Pa. 490 (1905); Paxson’s Estate, 225 Pa. 204 (1909); Williams’s Estate, 236 Pa. 259 (1912), are examples; these cases holding that the Orphans’ Court has, under proper circumstances, power to consider and finally determine title to personal property which appears in the inventory, account or other part of a decedent’s estate, but which is claimed by some one adversely to the estate. The present petition appears to be an application of such character. It will be noted, however, that no claim for any of the specific property (the proposed sale whereof is complained of) is made for or on behalf of the said Henry R. Brown estate, the claim being apparently made only for the partnership. Neither Henry R. Brown nor Walter J. Brown, nor the estate of either, own or have the title to any of such specific property of such alleged partnership; the partnership itself, as an entity, owning the title thereto, the partners being entitled only to a division of the proceeds thereof after the claims, if any, of creditors have been satisfied: Partnership Act of March 26, 1915, P. L. 18.

It is apparent, then, that in making the application through the petition which founds this proceeding, the ancillary administrator of the estate of Henry R. Brown, deceased, is acting as champion for the partnership it alleges. It may be seriously doubted if the petitioner has such right to grasp and carry the partnership flag in legal battles in which the alleged partnership participates, the law having reposed such function and duties exclusively in the surviving partner or his personal representative. But, granting that the petitioner had such power, the application so made for the relief becomes the application of the partnership, the existence of which, however, is denied by the respondent. Therefore, before this court could recognize the claim of title made by or for the said alleged partnership for specific goods and chattels averred to be erroneously included in the inventory and appraisement as the individual property of the decedent, Walter J. Brown, the fact of such partnership would first have to be judicially established; but the Orphans’ Court, as we have found under the authorities heretofore cited, has no jurisdictional power to determine that fact. Nor would this court have jurisdictional power to recognize in these proceedings the said Henry R. Brown as a creditor of, or claimant against, the estate of his deceased son, based on partnership dealings and operations with him, until after the existence of such partnership had been judicially determined by the Court of Common Pleas, the partnership business and affairs wound up therein and a balance struck against the deceased son’s estate in favor of the father’s estate: Ainey’s Appeal, 11 W. N. C. 568 (1882); Bentley’s Estate, 16 Phila. 263 (1883); Miller’s Estate, 136 Pa. 349 (1890); McNeilan’s Estate, 167 Pa. 473 (1895); De Coursey’s Estate, 211 Ph. 92 (1905); Blumenthal’s Estate, 227 Pa. 268 (1910).

Whether, therefore, the petition is construed to be an application made by a partner’s individual estate or for a partnership estate, the applicant is without legal standing to maintain this proceeding in this court, and, accordingly, this court cannot recognize the complaints of the petitioner as to the form or substance of the said inventory and appraisement (see Fiduciaries Act of June 7, 1917, clause (e), § 11, P. L. 447), nor its standing to otherwise inter-meddle in or interfere with the administration of the said Walter J. Brown estate; and such incapacity will continue until the condition precedent has been fulfilled, to wit, by a proper judicial determination of the existence of such partnership and a due adjudication of its business and affairs.

Our action in dismissing the petitioner’s petition is based exclusively on absence of jurisdiction in this court, and the same is done without prejudice to the petitioner’s right to seek redress in a tribunal of competent jurisdiction having authority to determine the fact of partnership, control the proper winding up of the partnership business and affairs, compel a due accounting thereof, and, incidentally, if proper grounds be established, to restrain the consummation of the alleged wrongful conversion and proposed sale of partnership property and assets, enforcing its orders by attachpients or through a receivership: Partnership Act of March 26, 1915, § 37, P. L. 18, 28.

And now, Feb. 8, 1921, the within matter came on to be heard on petition, citation, replication and testimony, and the same was argued by counsel, whereupon, for the reasons assigned in the foregoing opinion, the petition is dismissed, at the cost of the petitioner, without prejudice, however, to its right to apply for the relief sought to any other court or tribunal of competent jurisdiction.

Prom Harry D. Hamilton, Washington, Pa.


source: Caselaw Access Project

author: Gawthrop, Dep. Att’y-Gen.,

license: Public Domain

text:
    Automobile Fines.

      Automobiles — Fines — When payable to Commonwealth — Special Act of March 17, 1865, relating to Franklin and other counties — General Act of June SO, 1919.

      1. Pines imposed in Pranklin County for violations of the provisions of the Automobile Act of June 30, 1919, P. L. 678, other than for those relating to weight and speed, are payable under the terms of that act to the State Treasurer, and not for the use of the county law library, as provided by the local Act of March 17, 1865, P. L. 40S.
    2. The two acts are not inconsistent, and the later does not repeal the earlier, inasmuch as they refer to different subjects.
    Attorney-General’s Department. Opinion to Mr. Benjamin G. Eyon, Registrar of Motor-vehicles, State Highway Department.
    Nov. 4, 1921.
   Gawthrop, Dep. Att’y-Gen.,

There was duly received your communication of Oct. 26, 1921, in which you state that, notwithstanding the fact that you have notified the Clerk of the Court of Quarter Sessions of Franklin County to pay over to the State Treasurer the fines imposed by the Court of Quarter Sessions of said county upon defendants, convicted of certain violations of an act of assembly entitled “An act relating to and regulating the use and operation of automobiles, . . .” approved June 30, 1919, that officer has advised you that the fines will be paid over to the Treasurer of Franklin County, for the use of the Law Library, in accordance with the provisions of the Act of March 17, 1865, P. L. 408, and the Act of April 5, 1866, P. L. 522. You inquire whether the Commonwealth is entitled to these fines.

The Act of March 17, 1865, P. L. 408, provides: “That all fines and penalties imposed by the several courts of Franklin, Adams, Somerset and Fulton Counties, which, under existing laws, are not payable to the Commonwealth for its use, are hereby directed to be paid into the treasury of said counties for the use of a law library. . . .”

The Act of April 5, 1866, P. L. 522, provides: “That the true intent and meaning of the act entitled ‘An act to appropriate certain fines and penalties imposed by the courts of Franklin, Adams, Somerset and Fulton Counties,’ approved March 17, 1865, is and is hereby declared to be to embrace under the terms fines and penalties all forfeited recognizances in the said courts from the passage of said act and hereafter.”

Section 36 of the Act of June 30, 1919, P. L. 678, provides: “All fines and penalties collected under the provisions of this act for violations of the same, and all bail forfeited, shall be paid to the State Treasurer, to be placed in a deposit fund to be available for the use of the State Highway Department, except those collected for violations of the provisions as to speed or weight, which shall be paid to the treasurer of the city, borough, town or township wherein the violation occurred. . . .”

I understand that the fines about which you inquire were not imposed in cases charging violations of the provisions of the latter act as to speed or weight.

It appears that the local authorities of Franklin County take the position that, upon the principle stated in the maxim generalia specialibus non dero-gant, the Act of June 30, 1919, P. L. 678, does not operate to give the Commonwealth any fines which may be imposed under it by the courts of Franklin County. Clearly this position is untenable. There is no inconsistency between the Act of 1919 and these special acts. They relate to different subjects. The former does not repeal the latter, but merely creates new offences, and provides that fines imposed for the same shall be paid to the State Treasurer. Each act may be given its full effect without conflict with the other. The fines which are payable to the Treasurer of Franklin County under the Act of March 17, 1865, P. L. 408, are those “which, under existing laws, are not payable to the Commonwealth for its use.” I am of opinion that the words “under existing laws,” as used in the act, refer to the laws existing at the time of the imposition of the fines. The words must receive this liberal construction in order to effectuate the purpose of the act. It would be a narrow construction to hold that the County of Franklin can receive only the fines imposed under acts of assembly in force at the time of the passage of the Act of 1865, and cannot receive fines imposed under subsequent acts. Even under this liberal construction, however, the County of Franklin is not entitled to receive fines imposed by its several courts which are payable to the Commonwealth. It follows, therefore, that the fines which are directed to be paid to the Commonwealth under the Act of June 30, 1919, P. L. 678, cannot be held by the County of Franklin. This conclusion is in harmony with the opinion of Deputy Attorney-General Hull to the Hon. Fred Rasmussen, Secretary of the Department of Agriculture, under date of July 21, 1921, advising that fines imposed by the Court of Quarter Sessions of Franklin County for violations of the Act of May 28, 1915, P. L. 587, are payable to a duly authorized agent of the Bureau of Animal Industry, to be by him paid into the State treasury.

There has come to my attention no decision by any court in Pennsylvania in conflict with the opinion herein expressed. In Com. v. Ryan, 30 Dist. R. 826, Judge Stewart, of Northampton County, specially presiding in the County of Carbon, held that a fine imposed for violation of certain statutes relating to the practice of dentistry was payable to the Carbon County Law Library under an act similar to the Act of 1865, relating to Franklin County. In that case, however, the act of assembly imposing the fine made it payable to the State Dental Society and not to the Commonwealth. In my opinion, the court could not have reached the conclusion it did if the fines there imposed had been for the use of the Commonwealth and had been payable to the Commonwealth.

You are advised, therefore, to renew your request to the Clerk of the Court of Quarter Sessions of Franklin County, and, in the event that it is not complied with, to notify this department.

Prom Guy H. Davies, Harrisburg, Pa.


author: Berger, J.,

text:
    East Norwegian Township’s Primary Election.

      Election law — Primary elections — Writing name in blank space — Cross-mark — Act of July 12, 1913.

      1. Where a voter writes the name of his candidate in the blank space provided for that purpose in the ballot, such vote must be counted.
    2. No cross-mark is necessary, inasmuch as the form prescribed by the Act of July 12, 1913, P. L. 719, does not provide a square for a cross-mark in such blank space.
    Petition for recount of vote cast at primary election for school directors in East Norwegian Township. C. P. Schuylkill Co., Nov. T., 1921, No. 85.

      Roscoe R. Koch and C. F. Muehlhof, for petitioners.

      James B. Reilly and T. A. McCarthy, for respondents.
    Oct. 3, 1921.
   Berger, J.,

The petition of the above named electors, filed pursuant to section 15 of the Act of July 12, 1913, P. L. 719, as amended by the Act of May 25, 1921 (Act No. 420), alleged, as is required by said act, upon information deemed reliable, that the petitioners believed an act of fraud or error not manifest upon the return of votes made by the election board had been committed by the failure of the election board to count and return eight or ten votes for Francis C. Ryan for nomination as a Democrat to the office of school director, although the name of said Francis C. Ryan had been written on said ballots without a cross-mark having been placed after his name in the appropriate blank space upon the ballot for the insertion of the Democratic voter’s choice for nominations to the office of school director, other than the three candidates whose names appeared in print upon the ballot.

When the case came on for hearing, by agreement of the parties, one Democratic primary ballot which had been cast was offered and received in evidence as typical of six, which in respect to the office of school director is in form as follows:

The parties further agreed as follows: “The Court: Is it agreed that I shall certify the vote or use as a basis of certification the vote returned for this office by this election board to the commissioner’s office, and that I shall add thereto for Ryan a certain number, which you are now about to agree upon? Is that the point? Mr. Koch: That would be entirely satisfactory.

“The Court: How many shall I add to those already returned for Ryan? Mr. McCarthy: Six.

“The Court: Providing I determine that the ballot received in evidence ought to have been counted for Ryan. Mr. Reilly: Yes, sir. Mr. Koch: Yes, sir.”

The Democractie vote for school director was computed by the county commissioners, sitting as a computing board, as follows: James McGuire had 37 votes; Francis Ryan had 33 votes; John Purcell had 34 votes; Patrick Flannery had 43 votes.

The only question for determination is whether the six ballots which had the name of Francis Ryan written thereon, without the addition of a cross-mark, ought to have been counted by the election board for Ryan. The form of the primary ballot, including the instructions to the voter, which form a part of the ballot, is prescribed by section 5 of the Act of July 12, 1913, P. L. 719, 723. In said form no square is provided for use by a voter who desires to write a name in an appropriate blank space upon the ballot. The instructions printed upon the ballot direct the voter to “Make a cross (X) in the square to the right of each candidate for whom you wish to vote. If you desire to vote for a person whose name is not on the ballot, write or paste his name in the blank space provided for that purpose.” (The italics are the writer’s.)

The said section also gives explicit directions to the election board in respect to the manner in which they shall count the ballots, in language as follows: “The voter may designate his choice as is indicated by the instructions shown on the form of ballot above set forth. If he shall vote for more persons for any office than there are candidates to be nominated or elected for such office, or if for any reason it may be impossible to determine his choice for any office, his ballot shall not be counted for such office, but the rest of his ballot, if properly marked, shall be counted. No ballot shall be rejected for any technical error which does not render it impossible to determine the voter’s choice.” This is a re-enactment of section 4 of the Act of Feb. 17, 1906, P. L. 36, in construing which, in Rodgers’s Contested Election, 234 Pa. 512, 516, Moschzisker, J., said: “Section 4 of the Act of Feb. 17, 1906, P. L. 36, provides: ‘The voter may designate his choice, as is indicated by the instructions shown on the form of ballot above set forth;’ this, according to our cases, must be taken to mean that he cannot do it in some other and different way.”

Clearly, the six ballots which were not counted for Francis Ryan as a Democratic candidate for the office of school director ought to have been counted, because the voters had written his name in the blank space provided for that purpose, and the board errqd in not counting and returning six votes in addition to those which they did return for Francis Ryan as a Democratic candidate for nomination to the office of school director.

The vote cast for the Democratic nomination for school director is, therefore, corrected, computed and certified to the county commissioners, sitting as a returning board, as follows :

Democratic Vote for School Director.

James McGuire had 37 votes; Francis Ryan had 39 votes; John Purcell had 34 votes; Patrick Flannery had 43 votes.

And now, Oct. 3, 1921, the prothonotary is directed to furnish a certified copy of this opinion to the county commissioners.

From M. M. Burke, Shenandoah, Pa.


author: Emery, P. J.,

text:
    Swick’s Nomination.

      Election laws — Keeping polls open after time for closing — Act of April 16, 1903.

    1. The election officers have no right to keep the polls open at a primary election after 7 P. M.
    2. If election officers at a primary election keep the polls open after 7 3?. M., and permit persons to vote other than those within the enclosed space who have received ballots but have not yet deposited them, the nomination will be declared invalid, even though the election officers acted without fraudulent intention, and honestly believed that they were doing what ought to be done under the peculiar circumstances of the case.
    The 23rd section of the Act of June 10, 1893, as amended April 16, 1903, P. L. 213, considered.
    A contested nomination for the office of burgess in a borough. Q. S. Lawrence Co., Sept. Sess., 1921, No. 169.

      William E. Porter and Wylie McCaslin, for contestant.

      A. Martin Graham and J. W. Rhodes, for respondent.
    Nov. 3, 1921.
   Emery, P. J.,

Ellwood City is composed of four wards, and each ward is an election district. At the primary election held in said borough Sept. 20, 1921, Benjamin G. Swick and Victor H. Grove and three others were candidates on the Republican ticket for burgess. Totaling the four wards, Swick received 580 votes and Grove received 563 votes. In the 1st Ward Swick received 225 votes and Grove received 118 votes. Grove contested Swick’s nomination, alleging irregularities in the 1st Ward.

In the 1st Ward, the election officers received from the county commissioners a package purporting to contain more than 700 Republican ballots, but it actually contained less than 300 ballots. No fraud was alleged in the matter of this discrepancy, and none existed. There was an unexplained mistake somewhere.

In said 1st Ward, at about 3 o’clock in the afternoon, the supply of Republican ballots became exhausted. It was about 6 o’clock in the evening before Republican ballots were supplied to the election officers. During the time that the election officers had no Republican ballots, several qualified Republican electors asked for and were refused Republican ballots.

At 7 o’clock in the evening said election officers announced that the polls were closed, but they actually permitted Republican electors to enter the polling-place and received Republican ballots and marked and deposited them in the ballot-box until about 8.20 P. M. No attempt was made to prove fraud on the part of the election officers. They acted in the honest belief that they were doing the right thing under the circumstances. The case turned on an interpretation of the 23rd section of the Act of June 10, 1893, P. L. 430, as amended by the Act of April 16, 1903, P. L. 213.

Order of court.

Now, Nov. 3, 1921, after hearing and argument, we are of opinion that by reason of the fact that many votes were cast and received by the Election Board of the First Election District of the Borough of Ellwood City at the primary election on Sept. 20th last, after 7 o’clock P. M., when the polls should have been legally closed, the election held in said district is illegal and void, and the entire vote of said district is not entitled to be counted, but should be rejected.

It is, therefore, ordered and adjudged that the votes cast at the primary election held Sept. 20, 1921, in the First Election District of the Borough of Ellwood City, Lawrence County, Penna., be rejected and not counted in determining what persons were nominated for the office of burgess voted for at said election in the said Borough of Ellwood City.

From William McElwee, Jr., New Castle, Pa.


author: Henry, P. J.,

text:
    Leininger’s Liquor License Application.

      Liquor law — Application for license — Act of May 5,1921.

    1. Under the Amendment of 1921, P. L. 407, to the Brooks High License Law, two questions must be considered by the court, the fitness of the applicant and the fitness of the place.
    2. The fitness of the place embraces more than the fitness of the'building. The surroundings and everything that has a bearing upon the fitness of the place for the purpose as considered from a community standpoint should be considered.
    3. The fact that the prior holder of the license has violated the law will also be considered in passing on the application.
    Application for license to sell liquor. Q. S. Lebanon Co., Jan. Sess., 1922, No. 8.

      Clarence D. Becker, for applicant.
    Jan. 16, 1922.
   Henry, P. J.,

The petitioner has asked for a license to sell liquor under the Brooks High License Law and its Amendment of 1921. Under this amendment, the power of the court in the matter of granting licenses has been greatly restricted, and the two questions for the court’s decision are the fitness of the applicant and the fitness of the place.

This applicant comes before the court with the strongest recommendations. He has had experience. He has strong endorsement and recommendation from people of the highest standing in the community, as well as from those in communities in which he has lived heretofore. The building is adapted for all the needs of a place of this character at this location, but, we take it, the fitness of the place embraces more than the mere fitness of the building. The surroundings and everything that may have a bearing upon the fitness of the place for the purpose, as considered from a community standpoint, should be considered. This house is within half a square, or possibly a few feet more, of three churches, and the Perseverance Fire Engine House is next door. The house is not large, cannot accommodate many hotel guests, and there cannot be any great demand for any accommodation of this character; but the proximity of this fire-engine house, considered in connection with high-powered motor fire apparatus and the poison now frequently sold as liquor, make a place of this kind a public menace if conducted in violation of law, and all this is strongly controlling in passing upon the fitness of this place for the license requested. Another consideration is the fact that the prior holder of the license has violated the law. The disposition of this court will be to refuse to relicense such places as have lost the privilege by reason of violation of the law. This is not to be a hard and fast rule, for there may be exceptions, but they will only be in such cases where the public interest outweighs that of the individual applicant and the individual owner. For these considerations, the court must adjudge this place not a fit and proper place for a license to sell liquor.

And now, to wit, Jan. 16, 1922, the application for a license is hereby refused.

From Dawson W. Light, Lebanon, Fa,


author: Per Curiam,

text:
    Van Blunk’s Estate.

      Wills — Construction—Technical words — Sole and separate use.

    A gift of real estate to a married woman for her sole and separate use creates a separate-use trust, although no trustee be appointed by the testator, and in a subsequent clause in the same item of the will he gives her absolutely a sum of money equal to the price of the property if sold by him in his lifetime, if in another item he gives her a life estate in other real estate in appropriate terms without such condition, thus showing his understanding of technical words, no sale having been made by him in his lifetime.
    Exceptions to adjudication. 0. C. Phila. Co., Jan. T., 1919, No. 437.
    The clause of the will in question is quoted in the opinion of the court in bdnc. The auditing judge (Gest, J.) said:
    “Catharine or Kathryn E. Welbank is living, and is the wife of Charles T. Welbank, who is also living.
    “By a decree of this court, entered Nov. 28, 1921, Joseph P. Bartilucci was appointed trustee for Catharine Welbank of premises No. 1623 South Broad Street, and was authorized to sell the same to Peter D’Ambrosio for $12,500, in accordance with the provisions of the Revised Price Act, which decree was duly complied with, and this account is filed of the proceeds of sale.
    “Mr. Patterson, in behalf of Mrs. Welbank, asked that the fund should be awarded to her. The devise contained in the will of the testator is to Cath-arine Welbank, wife of Charles Welbank, her heirs and assigns forever, for her sole and separate use, free and discharged from any and all control of her said husband and of any curtesy or other interest therein on the part of her said husband, which are apt words for the creation of a married woman’s sole and separate use. Mr. Patterson called attention to the further provision of the third paragraph, in which the testator, in case he should sell this real estate in his lifetime, bequeathed to Mrs. Welbank absolutely a sum equal to the price received, and certain other provisions in the will for her benefit which are absolute in their nature. It was argued that from the whole tenor of the will the testator did not intend to subject this devise to a trust by the mere employment of the technical words ‘sole and separate use.’ In support of this contention, certain decisions were cited, among them MacConnell v. Wright, 150 Pa. 275, and Ringe v. Kellner, 99 Pa. 460. In the latter case the language of the will was entirely different from that used in the present case, while in the former the words ‘sole and separate use’ were not employed, and emphasis was laid upon the power of sale conferred by the will. In the later case of Hays v. Leonard, 155 Pa. 474, MacConnell v. Wright was explained, and the prior decision under the same will of MacConnell v. Lindsay, 131 Pa. 476, was reaffirmed. The later cases of Wilbert’s Estate, 166 Pa. 113; Lewis v. Bryce, 187 Pa. 362; Gilbert’s Estate, 19 Dist. R. 460, 230 Pa. 502; Anton v. Secrist, 54 Pa. Superior Ct. 337, and our own case of Bringhurst’s Estate, 25 Dist. R. 662, 257 Pa. 515, remove any possible doubt. It need only be added that the bequest to Mrs. Welbank of the proceeds of sale, if such sale were made by the testator himself, has manifestly no effect upon the specific devise of the property where no such sale has been made, and the absence of an appointment of a trustee for Mrs. Welbank is immaterial, for it is the duty of the court to protect her separate use by appointing a trustee, as was done in this case: Varner’s Appeal, 80 Pa. 140.
    “Clearly the trust continues during the coverture of Mrs. Welbank, and the fund must be retained by the accountant as her trustee.”

      T. Cuyler Patterson, for exceptions.

      April 19, 1922.
   Per Curiam,

“It is a settled rule of construction that a technical meaning shall be given to a technical word in a will, unless there be clear evidence of a contrary intention:” Hawkins on Wills, Prop. III, Introduction; France’s Estate, 75 Pa. 220. “. . . technical words shall be taken to have been used according to their proper technical sense, unless the other parts of the will imperatively require a different one:” Mr. Justice Sharswood, in Doebler’s Appeal, 64 Pa. 9 (at page 15).

The exceptions are filed to the auditing judge’s ruling in interpreting the following clause of the will:

“I give and devise unto my niece, Catharine Welbank, wife of Charles Wel-bank, her heirs and assigns forever, for her sole and separate use, free and discharged from any and all control of her said husband, and of any curtesy or other interest therein on the part of her said husband, my house and lot of ground No. 1623 South Broad Street, Philadelphia, together with any fire insurance policies on the said house that I may hold at the time of my death. Ih event of my selling or disposing of my said house in my lifetime, then in lieu thereof I give and bequeath unto my said niece, absolutely, a sum equal to the price or sum for which I shall have sold or disposed of it.”

The auditing judge held that a separate-use trust was created, and that the latter language of an alternative gift of money in event of sale of the real estate by testator in his lifetime was insufficient and ineffective to modify or change testator’s expressed intent. No sale was made by testator, and so the legacy of a sum equal to the selling price was inoperative. In this we all concur.

Evidencing the fact that testator understood the force and effect of the technical expressions so used by him in the third item, we find him, in appropriate terms, giving the same devisee a life estate in other real estate without such condition. This, in itself, is persuasive and, in our judgment, controlling.

All exceptions are dismissed and the adjudication is confirmed absolutely.


author: Gest, J.,

text:
    Johnson’s Estate.

      Res adjudicata — Adjudication on former account in same estate — Law of case.

    1. Where adjudications upon former accounts of trustees in the same estate go no further than to determine the validity of a trust for life, and do not confirm the validity of remainders to take effect after the death of the life-tenant, such adjudications are not res judicatce upon the audit of a subsequent account of the same trustees at which the validity of the exercise of a power of appointment creating the gifts in remainder is raised.

      Powers — Exercise of 'power to appoint to class.

    2. Where it appears from the will that the testator’s intention was to allow the donee of the power to select out of a given class, the donee cannot appoint those not members of the class.
    Exceptions to adjudication. O. C. Phila. Co., Oct. T., 1887, No. 214.

    The facts and relevant provisions of the will appear from the adjudication of the auditing judge, Henderson, J.:
    “By the fifth item of his will the testator devised one-half of his real estate to his executors and directed them to pay the net income to his wife, Maggie W. Johnson, for life. She predeceased the testator. He further provided:
    “ ‘And after her death I direct my said Trustees to pay over the said income to my brother Walter E. Johnson in the same way during the whole term of his natural life. And upon his death then to hold the said one-half part of my real estate in trust for the only proper use and behoof of such child or children of him my said brother Walter E. and for such estate or estates as he may by his last will and testament or any instrument in the nature thereof direct, limit and appoint. And in default of such appointment, then in trust for the only proper use and behoof of such child or children and issue of deceased children as he may leave surviving him so however that the issue of any deceased child or children shall take only the share the parent would have taken if living. But should my said brother Walter E. die without leaving children or grandchildren, then and in that event it is my will that my said Trustees hold the said half part of my real estate to and for the only proper use and behoof of such of my brothers Peter, Philip, Edwin and Albert as may survive my said brother Walter E., share and share alike.’
    “Walter E. Johnson died July 18, 1909, leaving to survive him but one child, Elwood T. Johnson, and no issue of any deceased child.
    “Walter E. Johnson left a will, whereby he provided, inter alia:

      “ ‘Now therefore in exercise of said power of appointment, I give and bequeath to my son, Elwood T. Johnson, the sum of $10,000.00, absolutely. All the rest, residue and remainder of said Estate, whether real or personal, over which I have the power of appointment, I give, devise and bequeath to Charles Carver, the Trustee named in the last will of the said William Johnson ... to pay the said income to my son, Elwood T. Johnson, for and during the term of his natural life. And upon the death of my said son, then In Trust to hold the same for and to pay the Income thereof to his child or children or the issue of any deceased child or children,, share and share alike, until such child or children reaches or reach the age of twenty-one years, at which time I direct my Trustee to pay the principal of his or her share thus held In Trust to him or her absolutely. And in the event of my said son, Elwood T. Johnson, dying without issue, then I order and direct my said Trustee to pay the principal of said Trust Estate to such of my brothers as may be entitled as beneficiaries thereto under the said Will of the said William Johnson.’
    “Elwood T. Johnson died Aug. 31, 1921, without issue, leaving a will, whereby he gave his entire estate to his wife, Adah E. Johnson, and appointed her executrix.
    “Mr. Carver and Mr. White, on behalf of Adah E. Johnson, executrix and legatee of Elwood T. Johnson, claim that the appointment in the will of Walter E. Johnson is void, and that the principal of the trust vested absolutely in Elwood T. Johnson under the will of William Johnson, on the ground that the power of appointment was a special power to select beneficiaries out of a class of which Elwood T. Johnson was the only member, and that the appointor could not exercise it in favor of others.
    “An examination of the authorities shows that a liberal construction has been given to the exercise of a special power where the appointor has selected the beneficiaries within the designated class. The power may authorize preferences among appointees: GraefE v. De Turk, 44 Pa. 527; Boyle’s Estate, 12 Phila. 83; life estates may be appointed, and even a further power to appoint conferred upon the life-tenant, though the exercise of the latter may prove to be void: McClellan’s Estate, 221 Pa. 261; Lewis’s Estate, 269 Pa. 379.
    “On the other hand, a strict construction has been given to the description of the class to be selected, and in no case has an appointment been permitted to a stranger, nor the class extended to include persons who were not clearly within its limits.

      “In Horwitz v. Norris, 49 Pa. 213, and Fotterall’s Estate, 2 Dist. R. 146, a power to appoint to the life-tenant’s children and issue of deceased children was held not to authorize the appointment to the issue of living children. A power to appoint among children does not authorize the creation of trusts for the lives of the children, with remainder subject to a further power to appoint to persons entitled under the intestate laws: Smith’s Estate, 4 W. N. C. 266. And in Wickersham v. Savage, 68 Pa. 366, and Pepper’s Appeal, 120 Pa. 236, where there was but one member in the class to be appointed, he took the whole estate.
    “Wickersham v. Savage and Pepper’s Appeal cannot be distinguished from the present case.
    “Here the words of the will are: ‘To hold the said one-half part of my real estate in trust for the only proper use and behoof of such child or children of him my said brother Walter E. and for such estate or estates as he may by his last will . . . limit and appoint.’
    “In Wickersham v. Savage the testator gave the estate ‘to and among the children and issue of the said John, in such shares and proportions and for such estates as he by his last will or other appointment in writing shall direct.’
    “In Pepper’s Appeal the gift was to ‘such of his children and issue, and in such shares and for such estates as he shall by last will appoint.’
    “In both of these cases, like the present, the appointor had but one child.
    “In Wickersham v. Savage the appointment was in trust for the child for life, with a further power of appointment in the child, and in default thereof to his heirs. Chief Justice Thompson, for the Supreme Court, declared the appointment void, saying: ‘The appointee is one person; he takes the entire estate in remainder as the representative of a class. Of course, in that case no appointment could vary his interest. It would be a vain act to appoint.’
    “In Pepper’s Appeal the appointment was in trust for the child until twenty-one years after the death of certain named persons, with a gift over to the child’s issue. Mr. Justice Paxson said: ‘With but one member of the class in existence, there can be but one distribution, and, under such circumstances, it is difficult to see the utility of any appointment whatever.’
    “It is impossible, in view of these decisions, to find any validity in the appointment made by Walter E. Johnson. He left to survive him but one child, who, being the sole member of the designated class, had a vested interest not to be divested by an appointment to a stranger.
    “We must, therefore, ■ refer to the donor’s will for his disposition of the estate in default of an appointment, and there we find a gift to ‘such child or children and issue of deceased children’ as Walter E. Johnson might leave surviving him. Thus, Elwood T. Johnson, the sole issue of Walter E. Johnson, takes absolutely, and the brothers may not take under either will.
    “Counsel representing the interests of the brothers of the testator contended that the validity of the appointment was res adjudicate»,.

    “Two accounts of the trustee have been filed since the death of Walter E. Johnson, the donee of the power, on July 18, 1909.
    “On Oct. 14, 1909, Judge Penrose confirmed the third account of the trustee (which, like the present account, included real estate in which both Emily J. Woll and Walter E. Johnson,had equal life interests), and awarded principal to be held and income applied in accordance with the will of William Johnson- — income after the death of Walter E. Johnson being payable in equal shares to Emily J. Woll and ‘his son, Elwood T. Johnson, under power of appointment exercised by his will.’ Annexed to this adjudication is an agreement signed by Elwood T. Johnson, as follows:
    “ ‘I, Elwood T. Johnson, the Appointee under the Will of Walter E. Johnson, deceased, to receive, inter alia, the sum of Ten Thousand Dollars from the said Estate of William Johnson, Deceased (as reference to said Will of Walter E. Johnson, Dee’d, will more fully appear), do hereby declare that I will not demand payment of said sum of Ten Thousand Dollars from the Trustee under the Will of William Johnson, Dec’d, for the period of Five years from this date, or until the Fourth day of October, 1914, unless Emily J. Woll, formerly Emily Johnson, life tenant under said Will, should die prior to that time, in which event said sum shall become immediately payable. It being my wish and request that the said sum of Ten Thousand Dollars shall remain and be retained in the Trust Estate of said William Johnson, and the Income thereof paid to me until payment of said sum shall become due to me or my legal representatives, as aforesaid.’
    “On May 2, 1915, Judge Gummey confirmed the fourth account of the trustee, reciting in his adjudication:
    “ ‘Walter E. Johnson, prior to his death, executed his last will and testament, duly probated, whereby he executed the power of a gift to his son, Elwood T. Johnson, of $10,000 absolutely and gave the residue thereof to the accountant in trust to pay the income to his said son, Elwood T. Johnson, for life, with remainder for the use of said son’s children, etc., not necessary to recite.
    “ ‘Elwood T. Johnson is married, but without issue; he requests that said sum of $10,000 be not paid to him at this time, but remain as part of the trust estate, in accordance with his agreement attached to the adjudication filed Oct. 14, 1909, upon the trustee’s third account, and the provisions of which agreement he desires extended, without mentioning any definite time.’
    “No claim was made by Elwood T. Johnson at either of these audits that the appointment was void, and no discussion of the question appears in either adjudication.
    “The following question, therefore, is submitted for my decision: Is Elwood T. Johnson’s estate bound by his acquiescence in the awards made by the above adjudication?
    “There are many decisions on the books upholding the appointment of life estates, though the remainder might be bad (see cases cited in McClellan’s Estate, 221 Pa. 261, and Lewis’s Estate, 269 Pa. 379); and, further, it could not be said before the death of Elwood T. Johnson that he would die without issue, which issue might, under a possible construction of the donor’s will, be included in the class to be appointed; and either of these reasons would be sufficient to uphold the appointment for the life of Elwood T. Johnson to await the determination of future questions at his death.
    “The appointment to the brothers cannot be sustained under any interpretation of the donor’s will. Walter E. Johnson could appoint in favor of his children, and possibly their issue. There was only one in the class, as in Wickersham v. Savage, 58 Pa. 365, and Pepper’s Appeal, 120 Pa. 235, and, hence, this son takes the whole fund.”

      C. Oscar Beasley, for exceptants; Alex. Henry Carver and Thos. Raeburn White, contra.
    March 31, 1922.
   Gest, J.,

We do not think that any elaborate discussion is necessary to vindicate the adjudication of the auditing judge in this case. The main question with which the argument of the exceptants is concerned is that of res judicata, and, in our opinion, the adjudications of Judge Pen-rose in 1909 and of Judge Gummey in 1915 did not go further, if they went that far, than to determine the validity of the trust for the life of Elwood T. Johnson, and did not confirm the validity of the remainders after his death to the testator’s brothers, which, so far as the exceptants are concerned, were clearly invalid. It needs no argument to show that they are not entitled, either, first, under the will of William Johnson, in default of appointment by Walter, as, in that event, Elwood, the surviving child of Walter, would take, for the limitation over to William’s brothers is only in case Walter should die without leaving children; or, secondly, under the will of Walter, the donee of the power, for his appointment to William’s brothers transcended his power. If, as it may be argued, the appointment made by Walter of a life estate in trust for Elwood was valid under the doctrine of Boyle’s Estate, 12 Phila. 83 (better reported in 5 W. N. C. 363), and Lewis’s Estate, 269 Pa. 379; Farwell on Powers (2nd ed.), 306, it would, of course, be clear that Elwood could not have claimed the estate at these audits. And if, under the will of William Johnson, his son Walter, the donee of the power, had the right to appoint, not merely in favor of his children, but grandchildren, who are mentioned in the alternative limitation in default of appointment, it is also clear that Elwood could not have claimed the corpus at these audits, but the trustees must have continued to hold the estate until his death, in order to protect the interests of any children he might have left him surviving. Had Elwood, therefore, made his claim at these audits, it is not to be supposed that it would have been supported; but no such questions were raised, and the record, in our opinion, merely shows that Elwood acquiesced in the award to the trustees, just as he agreed that the $10,000 bequest to him should remain indefinitely in their hands. To go to the extent of the argument of counsel for the exceptants and hold that because Elwood did not claim an absolute estate at the audits in 1909 and 1915, the invalid appointment in the will of Walter in favor of William’s brothers was to be read into the will of William, would be to go beyond any decision that can be found.

The exceptions are dismissed and the adjudication is confirmed.


author: Thompson, J.,

text:
    Rutter’s Estate.

      Charities — Agreement by inmate to assign property to home — Breach— Damages.

    When an inmate of a home for the indigent executes an agreement by which she undertakes to assign to the home all the property which she may have or of which she may become possessed, the claim of the home against her estate for failure to make the assignment is a claim for damages for breach of contract; and where the agreement further provides that, in case of a breach of contract, the inmate shall pay for board and lodging at a specified rate per week, the damages are thereby liquidated and the home cannot recover any greater sum. Such an agreement will not sustain a claim by the home to the inmate’s residuary estate in the nature of a bill for specific performance.
    Exceptions to adjudication. O. C. Phila. Co., Jan. T., 1922, No. 206.

      C. B. D. Richardson, for exceptant; Edward Hopkinson, Jr., contra.
    March 31, 1922.
   Thompson, J.,

Margaret J. Rutter, a widow, eighty-three years old, made written application for admission to The Rebekah Home under date of Aug. 30, 1920. In her application she said that all the property she had left was a $100 Liberty Bond. The application concluded with: “I also agree that I will, previous to my admission to said Home, assign, transfer or set over in writing to said Home any money or property of any kind of which. I may now have or may become possessed. I further agree and promise to obey all rules of said Home . . . ; and, further, that any untrue or fraudulent statement or any concealment of fact made by me in this, my application, will forfeit my right to become or remain a resident of the said Home.”

On the same date, Aug. SO, 1920, she signed a paper marked “Agreement,” which contained the following:

“Second. That I will, in consideration of my admission to said Home, and prior thereto, agree to assign, transfer and deliver all my property of every character and description, which I now have or may hereafter receive or acquire, to said Home, absolutely, the Board of Directors of said Home to provide therefrom for my personal uses as the said Board of Directors may deem proper, and to pay for my funeral expenses in accordance with the usual regulations of said Board of Directors.
“Third. Any disposition of my real and personal estate, or any part thereof, in a manner unfair and unjust to said Home, or in violation of any part of this Agreement, or should I neglect or refuse to obey all the rules and regulations prescribed for the government of the residents of said Home, or any lawful command of the authorities in charge thereof, then, and in such case, such conduct on my part will be sufficient cause for my dismissal from said Home, and upon my dismissal, I do hereby waive all claim or right against said Home for my support and maintenance, or any other right, claim or demand under this Agreement.
“Fourth. In the event of my dismissal or my voluntary withdrawal from said Home, all moneys remaining, except sick benefits paid under Section 1 of this Agreement, after deducting (1) all such personal expenses as may have been paid for, or to me; and (2) a sum not exceeding $5.00 per week for each and every week I have been a resident of said Home, shall be returned to me upon giving a full and absolute release and acquittance and discharge from all liability to said Home.
“Fifth. Should it be discovered while I am a resident of said Home, or after I should voluntarily withdraw or leave the said Home, that I had personal or real property which I failed to transfer, assign or deliver to said Home, then said Home shall have the right and privilege of charging against me and recovering the same by due process of law the sum of $5.00 per week for each and every week while I am a resident thereof.”

The application was forthwith acted upon by the Home Committee on Oct. 13, 1920, and decedent was admitted to the Home on Nov. 10, 1920, and died in said Home Dec. 20, 1920, leaving a will dated May 28, 1920, whereby she gave her entire estate to her son, John M. Rutter. A granddaughter of the decedent, on Dec. 28, 1920, sent to the Home the two Liberty Bonds of $50 each.

At the time of testatrix’s death, she had a certificate of deposit of the Mana-yunk Trust Company, dated on or prior to April 4,1919, in the sum of $2200, which, with the accrued interest thereon, has been collected by her executor and is now accounted for, and which (after an allowance to the Home of $77.55, being the amount due said Home for six weeks’ board and funeral expenses paid by them, less the proceeds of the two Liberty Bonds) was awarded to the legatee named in the will of decedent, to which exceptions have been filed by the Home.

As was very properly said by the auditing judge: “It is, of course, obvious that the decedent misrepresented to the Home the amount of her property, and the Home might have declared her rights forfeited under the Agreement and expelled her therefrom. It was also obvious that she did not perform her agreement to assign her property to the Home, but it seems equally obvious that the right to specific performance of the contract was negatived by the terms of the agreement, which expressly provide for the consequences of a breach. The Rebekah Home is entitled to recover damages simply for the breach of contract.”

The failure of the Home to take an absolute present assignment of whatever property was owned by the decedent at the time of her entry into the Home, and their failure even to demand immediate delivery of the two Liberty Bonds which they knew she possessed, coupled with the provision as set forth in paragraph fifth above referred to, shows that the Home contemplated that the decedent might have made false statements in respect to her property, and in that event they provided for charging decedent board at the rate of $5 per week during the time she was a resident in said Home. In none of the papers signed by the decedent is it stipulated or even contemplated that the Home was to become the owner of any property of the decedent not disclosed in her application and agreement. We, therefore, have a case where the decedent agreed with the Home to do a thing which she did not do, and the question arises as to what is the measure of damages for said failure so to do. We think the measure of damages is as set forth in paragraph fifth above quoted, and as the claimant has received board at the stipulated rate of $5 per week during such period as decedent was in the Home, together with her funeral expenses paid by the Home, less the value of the Liberty Bonds turned over to the claimant after decedent's death, we are of opinion that the Home has received all it is legally entitled to. See Graham v. Graham’s Executors, 34 Pa. 475, affirmed in Carroll’s Estate, 219 Pa. 440; Maull’s Estate, 186 Pa. 477.

All the exceptions to the action of the auditing judge are, therefore, dismissed, and the adjudication is confirmed absolutely.


author: READER, J.,

text:
    Smock v. Smock.

      Divorce — Libel by husband — Cruelty or indignities to person to be averred —Acts of May 8, 1854, March 9, 1855, June 25,1895, and April 13, 1911.

    1. A divorce can be granted only for the reason or upon the ground set out in the libel.
    2. A libel by a husband is insufficient which merely avers that respondent “has been guilty of such conduct on her part as to render his condition intolerable and his life burdensome.”
    3. Such an averment does not bring the case within the Acts of May 8, 1854, P. L. 644, and June 25, 1895, P. L. 308, providing for divorce where the wife has been guilty of cruel or barbarous treatment or indignities to the person of her husband.
    4. Nor is such libel covered by the Acts of March 9, 1855, P. L. 68, and April 13, 1911, P. L. 60, which did not create a new cause of divorce, but merely extended the jurisdiction of the courts to those cases in which the cause arose outside of the State.
    Libel for divorce. C. P. Beaver Co., March T., 1920, No. 401.

      Holt, Holt & Richardson, for libellant.
    July 22, 1921
   READER, J.,

The grounds for divorce alleged in the libel filed in this case are two:

1. That respondent “has been guilty of such conduct on her part as to render his condition intolerable and his life burdensome.” This statement of the cause is followed by a specification of the various acts of respondent alleged to have been committed by her and embraced within the general statement.

2. Adultery.

After carefully reading and considering the evidence taken by the master and returned with his report, the court concurs in the finding of the master that the charge of adultery is not sustained.

This leaves for consideration the ground of divorce first above stated.

The first inquiry is as to whether the ground as ..stated is a cause for divorce under the Pennsylvania statutes. There being no legal ground for divorce under our law except such as is expressly defined by statute, it is necessary to find statutory provision covering the ground first above stated, or it must be held not to be a legal ground for divorce.

In the general Act of March 13, 1815, 6 Sm. Laws, 286, 1 Stewart’s Purdon, 1230, provision is made for the granting of a divorce, upon application by the wife, “when any husband shall have, by cruel and barbarous treatment, endangered his wife’s life or offered such indignities to her person as to render her condition intolerable and life burdensome, and thereby forced her to withdraw from his house and family.”

This provision afforded no relief to a complaining husband.

The first statutory enactment creating a like cause of divorce available to an injured husband was the Act of May 8, 1854, P. L. 644, 1 Stewart’s Purdon, 1234. This act provided for the granting of divorces upon grounds not previously recognized by our law, and, among others, “Where the wife shall have, by cruel and barbarous treatment, rendered the condition of her husband intolerable or life burdensome:” Section 1, clause 3.

This clause of the Act of 1854 was amended by the Act of June 25, 1895, P. L. 308, 1 Stewart’s Purdon, 1235. As amended, the act now provides for the granting of a divorce “Where a wife shall have, by cruel and barbarous treatment or indignities to his person, rendered the condition of her husband intolerable or life burdensome.”

The court is of opinion that the cause of divorce stated in the libel in this case is not within the provisions of the acts of assembly above cited. It is stated as “such conduct on her part as to render his condition intolerable and his life burdensome,” while the acts limit the right to a divorce to cases in which the condition of the husband is rendered intolerable or his life burdensome by “cruel and barbarous treatment or indignities to his person.” It is quite possible for a wife to be guilty of a course of conduct so scandalous and humiliating in character as in a sense to render the condition of her husband intolerable or his life burdensome, and yet such conduct not be “cruel and barbarous treatment or indignities to his person” within the terms of the statutes. Conduct of the former character is not made a ground of divorce by any statute of Pennsylvania.

It seems to have been assumed that the cause of divorce stated in the libel is created by the Act of March 9, 1855, P. L. 68, 1 Stewart’s Purdon, 1236. Section 1 of this act provides in part as follows: “It shall be lawful for the several Courts of Common Pleas in this Commonwealth to entertain jurisdiction of all cases of divorce from the bonds of matrimony for the cause of personal abuse, or for such conduct on the part of either the husband or wife as to render the condition of the other party intolerable and life burdensome, notwithstanding the parties were at the time of the occurring of said causes domiciled in another state. . . .”

The manifest purpose of this act, however, was not to create a new cause of divorce, but to extend the jurisdiction of the courts of the State to those cases in which the causes arose without the State and in another state.

This has been held to be its effect by several decisions of the courts: Gordon v. Gordon, 48 Pa. 226. In this case the court says (page 236) : “The Act of March 9, 1855, gave to neither of the parties any new cause of divorce. Its sole purpose, like that of the Act of 1850, was to extend the jurisdiction of the courts. The first of these acts had only extended jurisdiction over parties domiciled in another state, where the offence was committed, to cases of divorce from the bonds of matrimony for the causes of desertion and adultery. It did not confer jurisdiction in cases of such domicil of the parties, in any libel for a divorce, where the injury complained of was either cruel and barbarous treatment or personal indignities. To remedy this omission was the design of the Act'of 1855. Neither of these two acts undertakes to define any cause as sufficient grounds for a divorce, though they both refer in general terms to the causes which had previously been defined. It would be giving to them a meaning never intended were we to hold that they had any other object in view than the enlargement of the jurisdiction of the courts over parties. It might as well be ruled that the Act of 1850 authorized divorces for desertion without continued absence as that the Act of 1855 created a new and distinctive cause.”

To the same effect are the decisions in the following cases: Schlicter v. Schlicter, 10 Phila. 11; Pennington v. Pennington, 10 Phila. 22; Sterling v. Com., 2 Grant, 162; Hexamer v. Hexamer, 42 Pa. Superior Ct. 226 (240).

The only case which the court has found which could be cited as holding a different view from that taken in the cases cited is the case of Heilbron v. Heilbron, 158 Pa. 297. An examination of this case, however, shows that the question now being considered was apparently not considered by the court. The Act of 1855 is not referred to in the opinion of the Supreme Court, though cited in the argument of counsel.

We are of opinion that this case does not change the rule established by the above cited cases.

The same reasoning is applicable to the Act of April 28, 1903, P. L. 326, 1 Stewart’s Purdon, 1236, and the Act of April 13, 1911, P. L. 60, 5 Stewart’s Purdon, 5931.

The latter act is an amendment of the former. Their purpose is to further extend the jurisdiction of the courts to causes arising in foreign countries, etc., it having been held that the Act of 1855, above cited, applied only to causes arising in some one of the states of the United States: Lyon v. Lyon, 13 Dist. R. 623.

The court is, therefore, of the opinion that the libel in this case does not state a legal ground of divorce. This being the ease, it would follow that the divorce prayed for cannot be granted. A divorce can be granted only for the reason, or upon the ground, set out in the libel: Hexamer v. Hexamer, 42 Pa. Superior Ct. 226 (239-240); Middleton v. Middleton, 187 Pa. 612; Olson v. Olson, 27 Pa. Superior Ct. 128.

It also seems to the court that if the libel had charged cruel and barbarous treatment or indignities to the person in strict conformity to the requirements of the statutes above cited, it would still be very doubtful whether a divorce should be granted under the evidence in this case.

The conduct contemplated by the statutes is evidently not general bad conduct, even though it be so flagrant and notorious as to humiliate and disgrace the husband, and in this sense render his condition intolerable and life burdensome. It is rather conduct in its nature cruel and barbarous, or amounting to indignity to the person, directed against or directly affecting the husband himself: Hexamer v. Hexamer, 42 Pa. Superior Ct. 226 (239-240); Fay v. Fay, 27 Pa. Superior Ct. 328 (333, etc.); Gordon v. Gordon, 48 Pa. 226; Jones v. Jones, 66 Pa. 494; Butler v. Butler, 1 Parsons’s Equity Cases, 329 (344, etc.); Ponthus v. Ponthus, 66 Pa. Superior Ct. 257 (260, etc.).

While there is some evidence of indignities to the person of the libellant in this case, it is not of sufficient gravity, in the opinion of the court, to meet the requirements of the law. The most serious evidence of misconduct on the part of the respondent relates to her conduct with men other than her husband. This evidence, for the reasons above stated, does not establish the charge or ground of cruel and barbarous treatment or indignities to the person, under the statutes.

Por the reasons above stated, the court is of the opinion that a divorce should not be granted and that the libel should be dismissed.

Now, to wit, July 22, 1921, it is ordered, adjudged and decreed that the divorce prayed for in the libel filed in this case be and hereby is refused, and that said libel be dismissed, at the cost of the libellant.

From F. H. Laird, Beaver, Pa.


author: Koch, J.,

text:
    Bell v. Bell.

      Wills — Probate—Parties—Executor as party.

    Where an executor has been named as a party in an issue devisavit vel non awarded by the register of wills, although he is not interested in the distribution of the estate, the Court of Common Pleas will not strike off his name as a party in the suit.
    Rule upon Joseph W. Bell to show cause why his name should not be stricken from the record as party plaintiff. C. P. Schuylkill Co., Sept. T., 1921, No. 189.

      James J. Bell and John F. Whalen, for rule.

      J. A. Welsh and M. M. Burke, contra.
    Feb. 6, 1922.
   Koch, J.,

This case concerns the validity of a writing, purporting to be the last will and testament of Margaret Bell, late of the Borough of Shenandoah, deceased. James J. Bell filed a caveat cautioning the Register not to probate said will. In due course, the question of its validity has come to our Court of Common Pleas. The testatrix, inter alia, provided in her will as follows: “I give and bequeath unto my son, Joseph W. Bell, the sum of Twenty-five hundred ($2500.00) dollars, to be paid to him by my hereinafter named executors as soon as may be conveniently done after my decease.” She appoints her daughter, Mary M. Bell, and her son, Joseph W. Bell, as executors, but in a codicil to the will she revokes the bequest to her son, Joseph W. Bell, “in pursuance of his wish not to have any share in the distribution of my estate.” The real basis for this rule, as set out in the petition, is: “That as such proponent of alleged testamentary papers under which he takes no estate, the said Joseph W. Bell has no interest in the issue and is not entitled to be a party plaintiff to said suit.” In addition to that, the petition for the rule sets out that Joseph W. Bell is meddlesome and desires “to unduly increase and unnecessarily incur costs in these proceedings by the bringing into court of a large number of unnecessary witnesses, as well as in other ways, for the sole and avowed purpose, as declared by him, of working great injury and damage to your petitioner,” the said James J. Bell, the defendant in this ease.

If Joseph W. Bell misbehaves himself as an executor, I know of no law that permits a Court of Common Pleas to discharge him as an executor, and if he unduly and illegally makes costs, the same may be taxed and he be made to personally pay the same. The will makes Mary M. Bell a devisee as well as executrix thereof.

After the Register had heard the witnesses to the will and the codicil, James J. Bell, the caveator, availing himself of his rights under the 17th section of “The Register of Wills Act,” approved June 7, 1917, P. L. 415, requested the Register, in writing, to issue his precept to the Court of Common Pleas, directing an issue to be framed upon facts alleged by the said caveator, and thereupon the Register entered his precept in the manner and form provided in said section, therein commanding this court to cause an action to be entered upon our records between the said Mary M. Bell and Joseph W. Bell and the said James J. Bell, “so that an issue therein may be framed upon the merits of the controversy between the same parties and tried in due course,” etc. Conformably to said act, the precept directed to this court says: “And, further, that you cause all other persons who may be interested in the estate of said Margaret Bell, as heirs, relators or next of kin, devisees, legatees or executors, to be warned so that they may come into our said court and become a party to the said cause, if they shall see cause.” Executors seem, therefore, entitled to be made parties to an action by the very language of the aei itself, and, in view of such right, it is not within our power to strike off the name of the executor as a party, particularly so when he has been made a party by the precept of the Register. The case that the Register certified to us for trial is between Mary M. Bell and Joseph W. Bell on the one side, and James J. Bell on the other side. Whilst Joseph W. Bell may have no interest in the estate of the testatrix, yet, as an executor, by virtue of her appointment in the will, he is “a person interested.” As executor he is a trustee for creditors and legatees, and this confers such an interest as may be injuriously affected by a verdict of a jury. See King’s Estate, 9 W. N. C. 207. It was the business of the Register’s Court to award this issue and to name the parties to it, and we have no power to disturb it: Dotts v. Fetzer, 9 Pa. 88; Yardley v. Cuthbertson, 108 Pa. 395, 446. In the last case, however, the Supreme Court said, on page 447: “The law presumes sanity and freedom from undue influence as to all wills, and that presumption prevails until the contrary is alleged and proven. He who makes such allegations must prove them, and, therefore, the real burden of proof is on him. Strictly, therefore, he should be the plaintiff in the issue. As the executors, as such, have no interest in the estate to be distributed, they have no business in the issue a.nd ought not to be parties to it. The parties actually interested in sustaining the will ought to be defendants in the issue.” See, also, Stier’s Estate, 4 Pa. C. C. Reps. 639. But on the same day that this rule was taken, this court, on the petition of James J. Bell, the defendant, made such an order “as to make Mary M. Bell and Joseph W. Bell the plaintiffs, and James J. Bell, the petitioner, the defendant.” We shall, therefore, let the record stand as it has been made up, unless other persons interested may wish to become parties in accordance with their rights under the said “The Register of Wills Act.”

And now, Feb. 6, 1922, the rule is discharged.