author: GORDON, Jr., J.,

text:
    Cheltenham Township School District, to use, v. Aetna Casualty and Surety Company.

      Bonds — Instrument under seal — Actions—Third parties — Use-plaintiff— Act of May 10,1917.

    1. No matter what may be the intentions of the parties, an instrument under seal cannot he sued upon by a third party.
    2. The use-plaintiH in an action on a bond cannot recover if the legal plaintiff has suffered no loss which the defendant can be called upon to indemnify.
    3. A bond given to a school district to indemnify the district against loss through a failure of a contractor to complete his contract will not be construed as a bond under the Act of May 10, 1917, P. L. 158, to protect labor an'd material-men, where the express words of the bond and specifications of the contract, interpreted in the light of the unequivocal condition of the bond, indicate that the contract created by the bond is one of indemnity exclusively.
    Affidavit of defense raising questions of law. C. P. No. 2, Phila. Co., June T., 1927, No. 1207.

      J. B. Colahan, for plaintiff; Joseph W. Henderson, for defendant.
    April 2, 1928.
   GORDON, Jr., J.,

This case is before us upon an affidavit of defense raising questions of law. The suit is upon a bond given by the defendant to the legal plaintiff, the school district, to indemnify the latter against loss arising through a failure of the principal in the bond, J. Y. Loux, who was a contractor engaged in the erection of a school building at Elkins Park, “to faithfully perform said contract or to fully pay for all labor and materials used in the performance of such contract.” The use-plaintiff is a materialman who furnished the material used in the performance of the principal’s contract with the school district.

The pleadings disclose the following controlling facts in the case. On Jan. 28, 1925, Loux entered into a contract with the school district, the legal plaintiff, to erect a high school at Elkins Park. The specifications attached to the contract, and which were, by reference, incorporated in the bond in suit, provided that “the general contractor and contractors . . . shall furnish to the Owners, Surety Company bond satisfactory to the Owners, before any payments are made, in the sum of the total amount of all contracts included in their contracts, protecting Owners against all damage, insuring the faithful execution of the contract, and the payment of all just bills contracted in this work.” In pursuance of this provision of the specifications, Loux furnished the bond of the defendant here in suit. The condition of the bond is as follows: “Now, therefore, the condition of this obligation is such that if the principal shall indemnify the Obligee against any loss directly arising by reason of the failure of the Principal to faithfully perform said contract, or to fully pay for all labor and material used in performing said contract, then this obligation shall be void; otherwise remain in full force and effect.” The use-plaintiff thereafter furnished certain materials for the building to the principal, and, on Dec. 25, 1925, Loux, who had defaulted in his contract with the legal plaintiff and abandoned the work, filed a petition in bankruptcy, leaving an unpaid balance of $2414.78 due to the use-plaintiff for materials furnished to the work.

It is conceded in the statement of claim that the school district, the legal plaintiff and obligee in the bond, has neither paid this bill nor suffered any damage by reason of the failure of Loux to pay it, and that it has no need to resort to the bond for its own protection. The question, therefore, arises whether under these facts a cause of action on the bond lies in either the legal or use-plaintiff.

Since the bond is an instrument under seal, the use-plaintiff could not sue upon it in his own right as a third party primarily benefited by the contract, because it has been definitely settled by the case of Greene County, to use, v. Southern Surety Co., decided by our Supreme Court, Dec. 7, 1927, 292 Pa. 304, that, no matter what may be the intentions of the parties, an instrument under seal, cannot be sued upon by a third party. This being so, the use-plaintiff can only recover here in the right of the legal plaintiff, unless the bond is an “additional bond” given to protect labor and materialmen under the provisions of the Act of May 10, 1917, P. L. 158, which enables labor and materialmen to recover on such a bond upon proof only of the contractor’s failure to pay. If the bond was not given under the provisions of that act, the use-plaintiff cannot recover here, because, in that event, its rights would be only those of the legal plaintiff, which has suffered no damage through the failure of the principal to pay the use-plaintiff; that is to say, the use-plaintiff could not recover because the legal plaintiff has suffered no loss which the defendant can be called upon to indemnify. The question to be decided, therefore, is whether or not the bond in suit is merely an indemnity bond given under the provisions of the specifications or is a bond given under the provisions of the Act of 1917; and this controlling question must be determined by an inspection and interpretation of the bond itself.

The statement of claim avers, in paragraph 11, that “the said bond was intended by the parties thereto to be and was and is, not only a bond guaranteeing the completion of the said improvement to the legal plaintiff, but also the additional bond protecting labor and materialmen, such as [is] authorized by the said act of assembly (Act of 1917).” This is' not an averment of a definite agreement that the bond was given under the Act of 1917. It is merely an averment that the bond was intended to be so given. Therefore, as all of the parties to this litigation are corporations, acting in the matter by written instruments which speak for themselves, their intention is to be gathered from their writings, and a mere averment in the statement of claim of an intention which is in contradiction of the clear intention of the parties as expressed in their written contracts, does not raise an issue for determination by a jury. Hence, the averment of paragraph 11, just quoted, cannot control the disposition of the motion before us.

Considering now the question of whether the bond before us was given under the Act of 1917, it will be noticed, in the first place, that the language of the condition of the bond itself is clear, certain and unequivocal. It is that the defendant “shall indemnify the obligee affainst any loss directly arising by reason of the failure of the principal to faithfully perform said contract or to fully pay for all labor and material used in the performance of such contract.” (The underscores are ours.) Clearly, this is a bond of indemnity, given to the school district to indemnify it against loss caused by the failure of the principal to pay for materials used in the building. The language is not ambiguous and the intent to be gathered from it is not to be misunderstood.

It is contended, however, that the intention of the school district, as shown by the language of the specifications, which are incorporated by reference in the bond, was to call for a bond under the Act of 1917. It may be conceded that the language used in the specifications is not entirely clear. It provides that a bond shall be given “protecting owners against all damage, insuring the faithful execution of the contract, and the payment of all just bills.” Standing alone, this might be interpreted as calling for a bond protecting the owners and also insuring the payment of sub-contractors, and, as such, would call for a bond under the Act of 1917. On the other hand, it could equally well be argued that the word “insuring,” following as it does, without disjunctive words, upon the provision that the bond shall protect the owners against damage, is merely descriptive of the nature of the protection required by the owner; that this is especially so since, in the contract, the owners are authorized to pay laborers only and not materialmen; and, hence, that the bond was intended to be entered as an indemnity bond merely, and not under the Act of 1917. If we concede this ambiguity, however, we are forced, then, to interpret the specifications in the light of the unequivocal condition of the bond, which indicates that the contract is one of indemnity exclusively: Erie, to use, v. Diefendorf, 278 Pa. 31; Lancaster v. Frescoln, 192 Pa. 452, and 203 Pa. 640.

It accordingly follows that the bond was not given under the Act of 1917, that the use-plaintiff can recover only in the right of the legal plaintiff, and that, as the legal plaintiff has shown no loss which would ground a right of action against the defendant, the affidavit of defense raising questions of law must be held sufficient. In addition, it is evident that it would be useless to give the plaintiff an opportunity to amend, for it could not improve its position by doing so. Accordingly, the affidavit of defense raising questions of law is adjudged to be sufficient, and judgment is hereby entered in favor of the defendant.


source: Caselaw Access Project

author: Finlettee, P. J.,

license: Public Domain

text:
    Spector et al. v. Walcot Manufacturing Company.

      Practice, C. P. — Pleading■—-Action on book account — Statement of claim— Averment that contract was oral — Practice Act of May 14, 1915, P. L. 4-83.

    1. In an action upon a took account, the statement must aver whether the contract was oral or in writing, in accordance with section 9 of the Practice Act.
    2. The statute does not distinguish between an express and an implied contract, but only between an oral and a written one.
    3. The averment is especially material where a book account is pleaded, because such a statement cannot he based upon a written contract.
    Motion to strike off statement. C. P. No. 4, Phila. Co., Dec. T., 1927, No. 178.

      George T. Steeley, for plaintiffs; Joseph S. Conwell, for defendant.
    March 23, 1928.
   Finlettee, P. J.,

The plaintiff pleads a copy of book entries, coupled with an averment that “at the special instance and request of the defendant, the plaintiff did perform certain services and work, and did sell and deliver to the defendant certain material and supplies, as would more fully appear” in copies of his books of original entry attached.

Defendant moves to strike off the statement because it contains no allegation whether or not the contract sued upon was oral or written, nor any copy, if in fact there was a writing.

There seems to be some diversity of view throughout the State about the necessity of these averments in suits upon book accounts.

The decisions in Hine v. Horn, 30 Dist. R. 499, and Machine Co. v. Clay Co., 29 Dist. R. 753, give the opposing views on the subject.

In the first-mentioned ease it was said: “Charges made in a book of original entry import both sale and delivery of the goods to the defendant, and it is that which in a suit upon a book account constitutes the plaintiff’s cause of action. Except what the law implies, there is no contract, written or oral, about it, and, therefore, there is nothing to be averred on the subject under the provisions of the Practice Act. ... It might be. added that the view here contended for by the defendant would lead to self-evident practical difficulties; the avoidance of which by interpretation of the statute would seem warranted by the principle argmnentum ab in convenienti plurium valet in lege.”

The same ruling was made in Bartlett Garages v. Kaier, 15 Schuyl. Legal Rec. 81, and Raub Supply Co. v. Forrest, 5 D. & C. 678.

In Machine Co. v. Clay Co., supra, it was said: “We cannot agree (that an action on a book account does not fall within section 9 of the Practice Act). It is clearly upon contract. The statute does not distinguish between an express and an implied contract, but only between an oral and a written contract. ... A purchase over the counter makes an oral contract. A purchase by correspondence a written contract.”

This view was taken also in Philadelphia Gear Co. v. Climax Machine Co., 29 Dist. R. 493, and in Binghampton Co. v. Nicholas, 2 D. & C. 603. And it seems to us to be the better view.

The statute is most explicit. Section 9 provides: “In actions upon con-contracts it (the statement) shall state whether the contract was oral or in writing.” And section 5: “Every pleading shall have attached to it copies of all notes, contracts, book entries upon which the party pleading relies for his claim.”

An action upon a book account is based upon a sale and delivery of goods, or upon work and labor done: Lonergan v. Whitehead, 10 Watts, 249; Corr v. Sellers, 100 Pa. 169. We cannot agree with the argument that there is no contract involved in such a case. There must have been an order for the goods and its acceptance. This is a sale, and a sale is a contract.

The “practical difficulties” referred to in Hine v. Horn, supra, which would justify omitting the averments expressly required by the statute, do not seem to be large, for there is nothing in the statute that precludes the use of the entries in the statement. If the goods were ordered by word of mouth, all that would be needed in addition would be an averment that the suit is based on an oral contract. On the other hand, if they were ordered in writing, or delivered on a written contract, book entries would not be admissible.

We fear that it is not “interpretation” of the statute, but judicial repeal, which leads to the result that the 9th and 5th sections need not be followed.

Again, an averment that the contract is oral is essential to an action upon a book account, because no such action can be maintained upon a written contract.

“Book entries were admitted as evidence of the sale and delivery of goods from necessity, because, according to the usual mode of doing business, the sale and delivery commonly took place when no other persons (than the buyer and seller) were present, and, consequently, the transaction was susceptible of no other proof.” (The parties being, at the time the rule to admit entries was established, disqualified as witnesses on the ground of interest.) “But there is no case where such testimony has been admitted to prove delivery of an article made in pursuance of a previous contract:” Lonergan v. Whitehead, 10 Watts, 249. Where the contract is in writing, the reasons for the admission of book entries do not apply, for “there is no necessity to resort to such proofs. Delivery can easily be proved by disinterested witnesses:” Lonergan v. Whitehead, supra.

In other words, book entries are only admissible, either in pleading or as evidence, in connection with sales and deliveries, where the transaction is analogous to a sale across the counter: Shoemaker v. Kellog, 11 Pa. 310. They are not admissible to prove transactions based on written executory contracts: Alexander v. Hoffman, 5 W. & S. 382; Eshleman v. Harnish, 76 Pa. 97; Hall v. Woolen Co., 187 Pa. 18. Nor sales of goods to be delivered at a future day: Corr v. Sellers, 100 Pa. 169; Rheem v. Snodgrass, 2 Grant, 379.

There is, then, a real necessity for an averment in the statement that the contract was oral, for, if it were in writing, the suit should be brought directly upon the contract.

We, therefore, make absolute the rule to strike off the statement. Plaintiff has leave to file a proper statement within thirty days.


author: Thompson, J.,

text:
    Printzenhoff’s Estate.

      Decedents’ estates — Life estate — Failure to enter security — Appointment of trustee — Fiduciaries Act of June 7, 1917 — Trusts and trustees — Commissions — Counsel fee — Accretions.
    1. Where a life-tenant fails to enter security and petitions for the appointment of a trustee under the Fiduciaries Act of June 7, 1917, P. L. 447, the trustee so appointed is a trustee not merely for the life-tenant, but for all parties in interest, and as such is entitled to his commissions and counsel fee out of the principal of the estate.
    2. In such case, accretions to the fund by sale of securities belong to the remaindermen and not to the estate of the life-tenant.
    Exceptions to adjudication. O. C. Phila. Co., July -T., 1918, No. 462.
    Van Dusen, J., Auditing Judge. — Testator died Oct. 31, 1917, and by his will gave the interest and income of his residuary estate to his sister, Cartis S. Robins, for life and after her death gave the principal to the Methodist Episcopal Home for the Aged. No trust was created. Upon the executor’s account, Anderson, J., stated in his adjudication as follows (Nov. 13, 1918): “At the request of the life tenant, [principal is] awarded to a trustee to be hereinafter appointed for Cartis S. Robins upon the uses and purposes declared by the will of testatrix.”
    This accountant was accordingly appointed trustee on petition of the life-tenant, received the fund, and files this final account because of the death of Cartis S. Robins, the life-tenant, June 18, 1927. The account claims credit against principal for 3 per cent, commissions, $1709.24, and counsel fee $1000, and these items are objected to by the remainderman on the ground that the trustee is the representative of the life-tenant and that she must bear the expenses of administration.
    Since 1834, we have had statutes requiring a life-tenant of personal property to enter security before receiving possession thereof. Upon entering security the life-tenant became owner of the property, and debtor on the bond to the remaindermen for the original value thereof. The life-tenant was, therefore, not entitled to credit for commissions, premiums on bond, or other expenses of administration, Reiff’s Appeal, 124 Pa. 145; Mutchmore’s Estate, 34 Dist. R. 251, and was not liable to account for gains on investments, Let-terle’s Estate, 248 Pa. 95; Kirkpatrick’s Estate, 284 Pa. 583. To provide for cases where the life-tenant was unable to enter security the practice grew up of appointing a trustee, at the instance of the life-tenant, to receive the fund. This was without express warrant in the statute. Such a trustee was still the representative of the life-tenant, bound to produce the original fund for the remaindermen, and not entitled to credit for excusable losses, or for expenses other than the cost of filing the account (why this exception I do not understand) : Weir’s Estate, 251 Pa. 499. See notes to section 23 of the Fiduciaries Act of June 7,1917, P. L. 447, in the report of the Commissioners, page 165.
    By that act the appointment of a trustee was expressly provided for. The act reads:
    “Should such person or legatee refuse or neglect or be unable to enter such security, the court may, upon petition of any person interested, including the owner of any subsequent interest, vested or contingent, in such proceeds of real estate, personal property, or the increase, profits or dividends thereof, and upon due notice to all persons interested, so far as such notice can reasonably be given, appoint a suitable person or corporation as trustee to receive and hold such proceeds of sale or personal property, invest the same in securities authorized by law, pay the income thereof, after deducting all legal charges, to the person entitled thereto, and, upon the termination of the trust, account for and pay to the persons entitled thereto the corpus of the trust fund, or transfer and deliver to them the securities in which it is invested, as the court may direct, after deducting all legal charges thereon. Such trustee shall enter such security as the court may direct. He shall not be an insurer of the trust fund, and shall be liable to the persons interested in the income or corpus of the trust fund only for such care, prudence and diligence in the execution of the trust as other trustees are liable for.”
    The statement in Judge Anderson’s adjudication that the award to a trustee to be appointed was made “at the request of the life-tenant” was followed by the petition of the life-tenant for such appointment. This was as positive a refusal to enter security as could be asked for. The provisions of the Fiduciaries Act of June 7, 1917, are applicable; and the question is whether they have altered the relation of the trustee to the parties so as to make the fund liable for expenses of administration. I think they have.
    The trustee is to invest the trust fund. . Upon the termination of the trust he is to account for the corpus of the trust fund, or the securities in which it is invested — not, as theretofore, for the value of the original fund. He is not to be an insurer of the trust fund, but is liable for due care only as other trustees are. Instead of being a substitute for the bond, without express warrant of law, upon what is to be regarded as the life-tenant’s default, the appointment of the trustee has become a legitimate alternative course without any implication of fault of the life-tenant. This seems to me to make the trustee the representative of all parties, and not of the life-tenant only.
    When, therefore, the statute provides for payment of the corpus “after deducting all legal charges thereon,” it means such charges as are usually made against principal in the administration and distribution of a trust. I notice that the act also specifically mentions and sanctions legal charges against income.
    Mention should be made of another case, Loewer’s Estate, 263 Pa. 517. It was there held that where a trustee was appointed in lieu of a bond upon the application of all parties in interest, he represented all parties, and the remaindermen were entitled to gains of principal. The trustee in Weir’s Estate, it was noted, was appointed on petition of the life-tenant only.
    In the case at bar, the trustee was appointed on the petition of the life-tenant only without notice to the remainderman (who was easily available). Section 23 of the Fiduciaries Act provides for appointment “upon petition of any person interested” and upon “due notice to all persons interested, so far as such notice can reasonably be given.” But as the appointment is made under the statute, I am of opinion that the trustee, no matter at whose instance appointed, becomes the kind of trustee described in the statute, and not the representative of the life-tenant alone.
    It follows that the objection to the accountant’s commissions must be dismissed.
    An objection was also made to the amount of the counsel fee; testimony as to services and value was offered.
    From this testimony I find that some of the services, to wit, $250 in value, were performed in the current administration of the trust, such as are usually chargeable to income. Another part, to wit, $100 in value, was services to principal during the administration of the trust. Other part, to wit, $500 in value, was services in appearing at the audit, preparation of the account, and closing the trust which belongs to principal.
    I accordingly surcharge the accountant in principal account with $400 of the counsel fee, and award counsel fee to be credited to income of $250.
    Counsel for the remainderman in his brief also asked for gains realized by the sale of principal assets, which I calculate to be $2619.69, less $72 loss, a net amount of $2547.69. The request is proper if the trustee is the kind of trustee I think he is; but it is entirely inconsistent with the objection to counsel fee and commissions, and counsel so stated in his oral argument. If the trustee represents all parties, the fund pays the expenses chargeable to principal and gets the gains; if he represents the life-tenant only, the latter pays the expenses, gets the gains and bears the losses. The request is granted. As the account is so stated, no change is necessary.

      George G. Ziegler, Sr., and Horace M-. Rvmsey, for exceptions.

      David Lavis, contra.

      Abraham Berkowitz, for Commonwealth.
    March 8, 1928.
   Thompson, J.,

The Auditing Judge, in a well-reasoned opinion, giving the authorities, held that the trustee appointed under section 23 of the Fiduciaries Act of 1917 represented all parties in interest and not the life-tenant only, this conclusion being adverse to the contention of the exceptant. We can add nothing, to what the Aüditing Judge has so well said in his adjudication, and the exceptions are, therefore, dismissed and the adjudication confirmed absolutely.

Lamorelle, P. J., did not sit.


author: Chase, P. J.,

text:
    Du Bois National Bank v. Olsen et al.

      Tax lien — Assignment of taxes — Lending money to pay taxes — Priorities.
    1. Where a bank lends money to pay city taxes, and takes from the city an assignment of its interest in the taxes, and the taxes are paid either before or after the assignment, the bank has no priority, by virtue of the assignment, in the distribution of the fund raised by a sheriff’s sale of the taxpayer’s real estate.
    2. In such case, the payment of the taxes ended the lien and the bank was merely an ordinary creditor.
    Exceptions to auditor’s report in distribution of proceeds of sheriff's sale of real estate. C. P. Clearfield Co., Feb. T., 1925, No. 40.

      Bell & Brockbank, for plaintiff; N. F. Womer, for defendants.
    Oct. 14, 1927.
   Chase, P. J.,

The material facts involved in the issue raised by the exceptions in this case are, in substance, as follows:

Carl G. Olsen was indebted in the sum of $188.71 for county, school and City of Du Bois taxes for the years 1924, 1925 and 1926. That the tax collector and city treasurer was O. S. Sutter. That on Aug. 31, 1926, the except-ant, the Union Banking and Trust Company, loaned to the wife of Olsen sufficient money to pay these taxes and with the express purpose of paying the same, taking a note for the amount of the loan, but, in addition thereto, it was agreed that the city treasurer and tax collector, O. S. Sutter, should assign all rights, title and interest in and to the taxes, with full right and power, to the Union Banking and Trust Company to collect, by virtue of the assignment, the preferred claim for taxes against the estate of Olsen, who was a bankrupt, with all the rights of collection that the tax collector had or was entitled to prior to the time of payment of the taxes. This assignment and power was duly executed on Aug. 81, 1926. Execution was issued by the Du Bois National Bank against Carl G. Olsen on May 19, 1927,' and the real estate of Olsen on which the taxes were assessed was sold by virtue of the execution on June 24, 1927, by the Sheriff of Clearfield County. This execution was on a judgment entered of record Dec. 8, 1924. The moneys from the sale were awarded by the auditor to the judgment.

In addition to these facts, it appears that at the time the taxes were paid the collector had a levy on Olsen’s personal property for the taxes due, which was released upon payment of the taxes by the exceptant. It further appears that the assignment aforementioned was filed in the nature of a tax lien to No. 1, May Term, 1927, on April 4, 1927, in the office of the prothonotary. Exceptant contends that this assignment subrogated the rights of the taxing powers to priority of claim to the exceptant.

As we view the law, it is unnecessary to discuss the effect the levy of the tax collector had on this assignment. The lien for taxes is the creature of statute, and if the statute has not been complied with, the lien would be void, or, if the purposes for which the lien is allowed by the statute ceases to exist, then the rights given by the lien cease. In other words, the purpose of the act being to give priority as a lien on property for taxes, when the taxes are satisfied, the subject is no longer in existence which is essential to the operation and continued effect of the act, and by that act of payment of the taxes the lien ceases.

The act of assembly says all taxes are declared to be a first lien, etc. See Act of June 4, 1901, P. L. 364. The power under the various acts permitting the priority of lien for taxes is to lien for taxes. If there are no taxes due, no lien could be entered. If a lien is entered for taxes due and unpaid, the payment of the taxes satisfies the lien.

In the instant case the assignment is ineffective for the purposes intended, under any of the views or conclusions drawn from the testimony. The evidence clearly shows that, either after or before the assignment, the taxes were paid, and when they were paid, the subject which gives a right to a lien ceased to exist, regardless of who paid them or what may have been the conditions under which they were paid.

The assignment in this case is not the assignment of a lien to collect taxes; it was an attempt to subrogate by assignment the special rights given under the law as to priority for taxes, to secure a debt for money borrowed to pay these taxes. This right of priority under the law being for taxes, the subject on which the priority is attempted to be based not being taxes, but being for a common debt, the act does not operate, there being nothing in the act of assembly which would permit such a substitution.

Now, Oct. 14, 1927, exceptions dismissed, at cost of exceptant, and the auditor’s report and schedule of distribution is affirmed. Exceptions noted and bill sealed to the exceptant. Prom John M. Urey, Clearfield, Pa.


author: Bouton, P. J.,

text:
    Hanson et al. v. McKean County.

      Taxes — Assessment — Reduction — Destniction of buildings — Acts of April 15,1834, and May 8,1909.

    Voluntary destruction of buildings by the owners of land is such destruction as to entitle them to a reduction in the tax'assessment within the provisions of the Act of April 15, 1834, P. L. 509, as amended May 8, 1909, P. L. 491.
    Case stated to determine right to have tax assessment reduced. ■ C P. McKean Co., Feb. T., 1927, No. 41.

      Mullin & Woods, for plaintiffs.

      F. D. Gallup, County Solicitor, for defendant.
    June 10, 1927.
   Bouton, P. J.,

As appears by the record of the case stated, Oscar Hanson and Julius Carlson, plaintiffs, are the owners of 103 acres of land in Norwich Township, McKean County, Pennsylvania, including all improvements and buildings thereon.

That at the regular triennial assessment made in the fall of 1924, said lands were assessed to the Sager Jar Company, which company was at that time owner of said lands; that the said assessment was as follows:

Warrant, 2718; sub or lot No. 75; acres improved, 98; houses, 40; offices, 1; barn, 1; mills, 1; real estate, $20,000; horses, 2; value, $50; real and personal estate, total $20,050.

No appeal was taken by the Sager Jar Company from the amount fixed by the board of revision for the triennial period, and that the taxes as assessed for the year 1925 were paid by the Sager Jar Company on the basis of the valuation fixed in the regular triennial assessment aforementioned.

That at the time the lands were acquired by purchase by the plaintiffs by deed dated Sept. 10, 1925, there was situated on these lands buildings of the following description: Forty-one private dwelling-houses, three stave sheds, one mill, two batch buildings, one dry kiln and two small factory buildings.

That prior to Dec. 15, 1925, the date on which the assessor made his return of assessments, the present owners, the plaintiffs, had torn down and removed froin the premises thirteen of the forty-one dwelling-houses, of an average value of $70 per house, and that at the present time six dwelling-houses are the only improvements on the said lands.

That at the last subsequent intertriennial assessment, the assessor assessed the lands to the plaintiffs in the sum of $20,000, end on March 15, 1926, the plaintiffs applied to the commissioners for a reduction in valuation because of the buildings having been destroyed, the owners asking for an abatement in the amount of the valuation fixed by the last subsequent intertriennial assessment as follows: For the year 1926, a sum of $1500; for the year 1927, the sum of $17,000.

The commissioners were of the opinion that no abatement or reduction should be made, because the voluntary destruction of the buildings which took place was not such a destruction as to bring the matter within the provisions of the Act of April 15, 1834, P. L. 509, as amended by the Act of May 8, 1909, P. L. 491, and agreed that the case be stated for the opinion of the court in the nature of a special ruling.

The solicitor for the county urges that the Act of April 15, 1834, P. L. 509, does not contemplate a voluntary tearing down or destruction of the buildings, but that it only means destruction by fire, flood, cyclone, etc., and seeks to have us read into the act such a restricted meaning. The act is as follows:

“At the time and place fixed for the appeal, which in each of the two years after the triennial assessment shall be held in the commissioners’ office of the proper county, the commissioners shall attend and hear all persons who may apply for redress, and grant such relief as to them shall appear just and reasonable: Provided, that the commissioners shall not make any allowance or abatement in the valuation of any real estate in any other year than that in which the triennial assessment is made, excepting where buildings or other improvements home been destroyed, or where coal, ore or other minerals assessed under the triennial assessment have been mined out subsequently to such triennial assessment, in which cases such allowance or abatement shall be made.”

It is a well established rule of construction that where the words of an act are clear and there is no ambiguity, they will be presumed to carry a legislative intent, and the court will construe the act according to the plain meaning of its terms: Mercer v. Watson, 1 Watts, 330; Dame’s Appeal, 62 Pa. 417; County v. Leibold, 107 Pa. 407; Erie County v. Erie Water Works Commissioners, 113 Pa. 368.

In our opinion, there is no ambiguity and no question as to the meaning of the language of the act. The Century Dictionary defines the word “destroy” as follows: “1. To pull down; unbuild (that which has been built); demolish.”

The New Oxford Dictionary defines the word “destroy” as follows: “1. To pull down or undo (that which has been built); to demolish, raze to the ground.”

Webster’s New International Dictionary gives the following definition for the word “destroy:” “1. To unbuild; to pull or tear down; to separate violently into its constituent parts; to break up the structure and organic existence of; to demolish.” See, also, Chestnut Hill Iron Co.’s Appeal, 6 Lanc. Law Rev. 137.

This identical question was decided by the late Hon. John Ormerod, President Judge of Potter County, on Jan. 1, 1914, in the case of Pennsylvania Stave Co.’s Appeal, 23 Dist. R. 399. In delivering the opinion of the court, he said: “We have not been able to find any decision by the appellate court which squarely decides this proposition, and the only definition of the word destroy which we are able to find is the same as that which is found in Webster’s Dictionary, which defines destroy as follows: ‘To unbuild; to pull or tear down; to separate violently into its constituent parts; to break up the structure and organic existence of; to demolish;’ and gives the synonyms ‘raze, dismantle and demolish.’ ”

The 34th section of the Act of April 10, 1849, P. L. 570, provides for the reassessment in the intermediate years when buildings have been erected. There is then the power to increase the assessment when the buildings have been voluntarily constructed upon the land, and also the power to reduce when buildings have been voluntarily destroyed and removed — thus giving us a balanced and equitable system for the assessment of taxes on improved land. It certainly would work a great injustice if a man should tear down a building upon one lot and reconstruct it upon another lot, that the commissioners or assessor could make no change in the assessment of the first lot for the destruction of the building, but would have to reassess and increase the valuation of the second lot upon which the building was rebuilt. The law does not contemplate that any citizen shall pay taxes twice upon the same property, nor that he shall pay upon property which he does not actually own; it contemplates an assessment of taxes upon a fair and equitable basis.

We are, therefore, of the opinion that the voluntary destruction of these buildings by the owners, Oscar Hanson and Julius Carlson, is such a destruction as to come within the provisions of the 13th section of the Act of April 15, 1834, P. L. 509, as amended by Act of May 8, 1909, P. L. 491, and under the stipulation contained in paragraph 8 of the case stated.

It is now, June 10, 1927, ordered that the Commissioners of McKean County be authorized and are directed to reduce the subsequent intertriennial assessment to the sum of $18,500 for the year 1926, and to the sum of $3000 for the year 1927. From B. G. Potter, Smetbport, Pa.


author: Reno, P. J.,

text:
    Scheirer v. Donovan.

      Practice — New trial — Inadequate verdict — Power of court to disturb verdict.

    1. In an action for personal injuries resulting in death, a new trial will not be granted on the ground of inadequacy of the verdict merely because it is in an amount equal to the exact sum expended for funeral and other expenses.
    2. The power of the court to award a new trial on the ground that the verdict is inadequate must be exercised with caution, and a verdict, if more than nominal, will not be disturbed merely because it is small, even though, when compared with other verdicts or with the injuries sustained, it seems inadequate.
    3. The trial judge may not substitute his judgment for that of the jury, and should interfere only when he is convinced that the verdict was influenced by partiality, passion or prejudice or by some misconception of the law or the evidence.
    Trespass for personal injuries. Motion for new trial. C. P. Lebigh Co., Sept. T., 1926, No. 89.

      William H. Schneller, for plaintiff; Ralph H. Schatz, for defendant.
    March 14, 1927.
   Reno, P. J.,

Plaintiff’s husband was killed by defendant’s automobile while crossing a street intersection. Plaintiff charged that the death resulted from defendant’s negligence; defendant alleged that the death was due to the negligent manner in which plaintiff’s husband crossed the street. There was sufficient evidence to support a verdict for either plaintiff or defendant. The jury returned a verdict for plaintiff for $513.23, the exact amount expended for funeral and other expenses. No award was made for the pecuniary loss suffered by plaintiff by the death of her husband, although there was evidence that he earned about $36 per week, was a hard, sober and industrious worker and had a life expectancy of 14.31 years. The plaintiff moves for a new trial upon the sole ground that the verdict is inadequate.

That we have power to award a new trial upon this ground is undisputed. This power, however, must be exercised with caution. “No mere difference of opinion, nothing short of a clear conviction compelled by the evidence that the jury must have been influenced by partiality, passion or prejudice or by some misconception of the law or the evidence, will justify an appellate court in declaring that the trial court was guilty of an abuse of discretion in refusing a new trial for inadequacy of damages where neither the evidence in the particular case nor the law applicable thereto furnishes any definite standard by which they might be measured and the jury had no other guide in arriving at the amount to be awarded but pure conjecture:” Rice, P. J., in Palmer v. Publishing Co., 7 Pa. Superior Ct. 594. This is the rule followed by the Superior Court when passing upon the question whether a trial court has properly exercised its discretion in granting or refusing a new trial. We cannot greatly err if we apply the same rule when we are exercising that discretion: Cf., Laudenberger v. Easton Transit Co., 16 Northamp. Co. Repr. 242, 246.

When we consider several applications of the rule, its meaning becomes even more clear. In the case in which it was announced, the Palmer case, a jury rendered a verdict for six and a-quarter cents in an action for libel where the publication charged plaintiff with bad faith, falsehood, breach of trust and the theft of almost a half million of dollars, and neither the trial court nor the Superior Court granted a new trial. This was a case where the law did not furnish a “definite standard by which the damages might be measured and the jury had no other guide in arriving at the amount to be awarded but pure conjecture.” But the rule was also followed in Reno v. Shallenberger, 8 Pa. Superior Ct. 436, an action for personal injuries, where a seventeen-year-old boy, burned by contact with defendant’s electric wires, was awarded six and a-quarter cents by the jury, and the verdict stood. In Woodward v. Traction Co., 17 Pa. Superior Ct. 576, which seems to be the next application of the rule, a fourteen-year-old boy was seriously and permanently injured by defendant’s street-car, propelled at a very high speed, and the jury awarded him $750. Application was made for a new trial, but it was refused by the trial court and by the Superior Court. In the course of the opinion, the Superior Court, speaking through Judge William W. Porter, indicated so lucidly the processes of reasoning by which it arrived at its conclusion that we cannot resist the temptation of inserting a sizable extract here: “The evidence shows indubitably that the boy, in whose favor the verdict was rendered, was badly hurt. ... We have thus only the items of pain and suffering and the results of the injury. For these, some tribunal must fix the amount which shall be by it regarded as compensation. The tribunal which has long and satisfactorily passed upon such matters is the jury. The amounts recovered in the numberless cases are as various as the constituents of the tribunal themselves, which convene for the particular cases and then disappear. No one has found a satisfactory substitute for this method of assessing damages. Least of all is it to be expected that the province of this tribunal of facts and figures is to be entrenched upon by giving to judges the determination of the amounts recoverable. It is to be remarked that the sum of $750 is substantial, not merely nominal. It is not so small as to be totally absurd or illogical, as in Bradwell v. Pittsburgh, etc., Passenger Ry. Co., 139 Pa. 404. Possibly, in the case of some boys it might be regarded as adequate in view of their circumstances and prospects. It may be that in the case of a son of a distinguished lawyer, the verdict seems small. It may be that had we sat as jurors, we could have concurred in a larger verdict in this case. It may be that some courts would have had difficulty in allowing the case to go to the jury in view of the charge of contributory negligence upon the facts shown. We are, however, dealing with a definite finding, not with possibilities. We have read the testimony. We have examined the charge with care. Conceding, for the purposes of discussion, that the verdict is inadequate, we can find nothing upon which to lay a finger and say, here was a cause for the verdict which indicates that the jury were influenced by partiality, passion or prejudice. We find nothing in the charge or in the verdict which indicates a misconception of the law or of the evidence, either by the court or by the jury, or of which we can say that it furnishes the cause for a wholly inadequate verdict. There is no standard by which to measure compensation for physical injury and suffering. The jury must determine what is compensation. The court below in its discretion controls only verdicts extremely inadequate or grossly excessive.”

In Chestnut v. Autocar Co., 53 Pa. Superior Ct. 1, plaintiff was injured while working on an automobile. He was awarded $300 and his father $75. The verdicts stood, the Superior Court holding: “While the amount awarded as damages in this case is small as compared with many other verdicts for similar injuries which have been rendered, it is not nominal but a substantial sum” and “it is well settled that the power of the appellate courts of this State to grant a new trial upon the ground of excessiveness or inadequacy of damages awarded by the jury is exceptional in character and only to be exercised in very clear cases of wrong and injustice which the court below should have remedied.” In Jones v. Pennsylvania Co., 60 Pa. Superior Ct. 436, 438, a passenger was injured while alighting from a railroad car in a dimly-lighted station. Judge Trexler says that “the verdict given by the jury of $1000 might appear small in comparison to the injury sustained, but the refusal of a new trial was within the discretion of the court. . . . While the amount awarded is small as compared with many other verdicts for similar injuries which have been rendered, it is not a nominal but a substantial sum.”

From these eases and from many others that might be cited, were this opinion extended to undue lengths, we deduce this guiding principle: That a verdict is not to be disturbed merely because it is small; if it is more than nominal, if it is substantial, it is to be sustained, even if, compared with other verdicts or with the injuries sustained, it seems inadequate. The rule does not permit the trial judge to substitute his judgment for that of the jury; he can and should interfere only when he is convinced that the verdict was influenced (1) by partiality, passion or prejudice, (2) or by some misconception of the law, or (3) the evidence.

But the learned counsel for plaintiff ably argues that this rule has been modified, or at least broadened, by Hammaker v. Watts Township, 71 Pa. Superior Ct. 554, and that, under that case, a new trial must be awarded. It must be conceded that the case does seem, on first blush, to depart from the trail blazed by the preceding authorities, and this perhaps accounts for the dissent by Judges Porter and Trexler. The case has been noticed, though-not expressly approved, by the Supreme Court (Rice v. Erie R. R. Co., 271 Pa. 180, 183), and one judge, for whom we entertain profound esteem,-felt “constrained to follow it” even when the jury awarded what he regarded as substantial damages: Bartholomew v. Longenbach, 20 Northamp. Co. Repr. 272.

But careful reading and analysis of the case does not produce the conviction that the rule has been materially altered. At least, we do not think that it requires us, as plaintiff argues, to award a new trial whenever the verdict, by its amount, shows that the jury failed to award adequate damages for every allowable element within the applicable measure of damage. In the Hammaker case, the jury awarded $27 for’the death of a child, that being the exact amount of the funeral expense. No award was made, therefore, for tne pecuniary loss sustained by the parents through the death. To that extent, the case is like the one at bar, except that there is a material difference in the amount of the expenses. Judge Keller, writing for the Superior Court, says that “the child, when killed, was healthy, bright and intelligent, and was beginning to be useful in helping her mother, and the parents were poor people, compelled to make use of the services of their children earlier than their well-to-do neighbors. The verdict of the jury established the culpable negligence of the defendant and that such negligence was the proximate cause of the child’s death. The jury having so found, with the evidence of the child’s age, good health, bright mental condition and helpful disposition before it, a verdict fixing the pecuniary value of the child’s life at the amount expended for its burial is so unreasonable and disproportionate to the value of human life that we are convinced that it must have been influenced by partiality or prejudice, or by some misconception of the law or the evidence in the case, and, in our opinion, the learned judge of the court below erred in the exercise of his judicial discretion in refusing a new trial.”

But we do not understand the case to hold that in every case there must be an allowance of damages to cover the pecuniary loss sustained by death. Indeed, Judge Keller says that “it is not necessary to hold that there must be substantial damages allowed for the negligent death of a child in every case and under all circumstances. There may possibly be exceptional circumstances which may justify a jury in holding that parents are not entitled to more than nominal damages from a defendant who has killed a child through negligence and carelessness.”

Necessarily, that negatives plaintiff’s broad postulate that a jury’s verdict must be set aside whenever it fails to compensate an injured party'for every conceivable element of damage. The mere fact that the jury fails to allow every element is not enough; it must also appear that the amount is so small that a court cannot escape the inference that the jury was “influenced by partiality or prejudice or by some misconception of the law or the evidence of the case.”

Moreover, in the Hammaker case, it appeared that there were grounds to support the inference that the jury had been influenced by some misconception of the law of the case. The children were killed when an oil tank wagon on which they were riding skidded over the unguarded bank of a public road. The negligence charged was the township’s failure to erect a guard-rail. The trial judge submitted the question of defendant’s negligence and of the parents’ contributory negligence (“in allowing their children to be at large,” page 557) to the jury. Concerning the charge, Judge Keller says: “The learned trial judge in his charge to the jury made a correct statement of the decisions of the Supreme Court on that subject, based upon cases where young children were killed or injured while wandering on railroad tracks, or by being struck by street-railway ears, or through other perils incident to the crowded streets or life of a city. It had, however, no application to this case. Instructions to a jury, even though made up of excerpts from the opinions of the Supreme Court, may be misleading if they are not applicable to the case being tried. The road in question was a public road in a sparsely-settled country district, not crossed nor traversed by a railroad, street-railway or other patent danger to pedestrians. A healthy, bright, intelligent child of nine years of age had as much right to walk on it as an adult, and to charge parents of such a child with culpable negligence for permitting it to do so would be to convict half our rural population of negligence, for nothing is more common than to see children of that age, and even younger, trudging the country roads while going to and returning from school. . . . The court should have charged the jury that if they believed the evidence as to the age and physical and mental condition of the children, their mother was not negligent in permitting them to walk on the public road to her sister’s, nor was it negligence to send them on the errand upon which they went from there. While the verdict of the jury established the fact that the plaintiffs were not guilty of contributory negligence, the jury may have reduced the amount to nothing but the funeral expenses with some thought of the plaintiffs’ contributory negligence in mind. The trial judge thought they had. It may well be that it was this misconception of the law and the evidence which was the occasion for their unconscionable verdict.”

Thus, it seems that the real basis of the decision is a misconception of the law in the minds of the jury produced by that portion of the trial judge's charge which dealt with the question of contributory negligence. Hence, the case is in line with the rule announced by Judge Rice and approved in so many cases which followed it. Besides, it fell within the doctrine of Bradwell v. Railway Co., 139 Pa. 404, where a personal injury verdict for six and a-quarter cents was set aside because “the verdict was a mere travesty of justice,” and Spence v. Stockdale Borough, 57 Pa. Superior Ct. 622, where it was said that a like verdict was “so absurd as to compel the conclusion that the jury must have been influenced by partiality, passion or prejudice or by some misconception of the law or the evidence.”

Now, the case at bar is not at all like the Hammaker case. There was no misconception of the law in the minds of the jury; at least, there was none produced by the court, for plaintiff’s counsel has assured us that the charge was free from error. The case was skillfully tried by the learned counsel on both sides, who had ample opportunity to develop their respective theories of the case. The witnesses were persons of intelligence and integrity, from all appearances, and we can think of nothing during the whole trial which would have created a misconception of the evidence. The jury was composed of three women and nine men; some had prior experience as jurors, and all were fair and honest persons. We are sure that none of them were, in fact, influenced by partiality or prejudice. Feeling sure that in fact they were not influenced by partiality or prejudice, are we, nevertheless, obliged to infer that they were influenced by partiality or prejudice merely because their verdict is smaller than it might have been?

Without undertaking to answer the query, we hold that the amount of the verdict does not permit us to infer that an improper influence operated upon the minds of the jurors. Plaintiff’s husband was killed while crossing a street intersection. She charged that defendant drove his automobile in a negligent manner. Defendant denied the negligence and contended that plaintiff’s husband came to his death because of the negligent manner in which he crossed the street. There was sufficient evidence to sustain a verdict either way. In fact, the evidence produced a sharp and decisive conflict and left us, as it must have left the jury, in a state of considerable doubt. Possibly, the fairest statement that can be made of the testimony is that it established defendant’s negligence and left open the question of the contributory negligence. Concerning the contributory negligence, it might fairly be said that the evidence preponderated in favor of defendant. In fine, had the jury rendered a verdict for defendant, we should not have been able to set it aside. If, thsn, in these circumstances, the jury, convinced that defendant was culpable to some extent and being in doubt whether plaintiff’s husband contributed to the injury, awarded plaintiff the funeral expenses and ignored all other items of damages, are we required to set aside the verdict? Are we obliged to infer that improper motives actuated the jury? We think not, and in refusing her application we believe we are conferring a real benefit upon her. It is possible, and in fact probable, that a second jury might find a verdict for defendant. What Judge Hassler so well said in Stetler v. Bair, 8 D. & C. 204, 206, may be appropriately repeated here: “The verdict, after considering the whole case, in our opinion, was found for plaintiff, even though the damages were placed at a very small figure, because of sympathy for her and not because the weight of the evidence justified it.” Another jury, impressed by defendant’s proof, may not be as sympathetic as the first jury.

Now, March 14,1927, the motion for a new trial is overruled and discharged.

From Edwin X». Kohler, Allentown/ Pa.


author: Knight, P. J.,

text:
    Commonwealth v. Kauffman et al.

      Highways — Township—Supervisors—Reasonab le repair.

    1. Township supervisors are required to keep the highways in repair and free from all obstructions, but this means reasonable repair under all the circumstances.
    2. Where the supervisors scraped a dirt road during the spring or summer and dragged it at least three times during the year, in addition to putting as much stone on it as their finances permitted, and the road is free from obstructions and sink-holes, the road is being kept in reasonable repair and the supervisors are not .chargeable with neglect as a result of ruts occurring in the road during wet weather and winter months.
    Appeal from conviction before justice of the peace. Q. S. Montgomery Co., Feb. T., 1927, No. 51.

      Robert Trucksess, for plaintiff; Thomas Hallman, for defendants.
    April 29, 1927.
   Knight, P. J.,

On March 4, 1927, Grace M. Miller, a resident of Skippack Township, Montgomery County, made information before Ralph McLaughlin, a justice of the peace of said county, against B. L. Kauff-man, Henry H. Kratz and Henry Gargus, supervisors of Skippack Township, charging them with failure to perform their duty to repair a certain road in said township leading from the Mennonite Church to the Dunkard Church, in violation of section 236 of the General Township Act of July 14, 1917, P. L. 840.

On this information, a warrant was issued and the defendants given a hearing before the justice on March 8, 1927. On the fifteenth day of the same month, the justice adjudged the defendants guilty of failure to repair the said road, and sentenced them to pay a fine of fifty dollars and the costs of prosecution. The defendants having obtained an allowance, appealed to this court, where the matter was heard de novo.

Section 236 of the Township Code, supra, provides that the township superintendent or roadmaster, under the direction of the board of supervisors, shall, inter alia, “have the general care and superintendence of the improvement of the highways and bridges of the township” and shall “cause such highways and bridges to be kept in repair and free from all obstructions.”

The evidence produced before us warrants the following

Findings of fact.

1. Ten families live on the road complained of, which is about two miles long. It is an ordinary dirt road, running through clay soil.

2. In summer, the road is in fair condition, except when it rains, at which time it becomes slippery and automobiles are apt to skid into the ditch. In winter, the mud and ruts become deep, especially in wet weather, and it is at times impassable for automobiles and hard to negotiate with horse-drawn vehicles.

3. The supervisors scraped the road in the spring or summer of 1926 and dragged it at least three times during the year from March of 1926 to March of 1927. They ordered a resident living along the road to drag the road whenever necessary. They placed stone on a portion of the road in 1925 and on another portion in 1926, and have already ordered stone which they intend to put on further portions of the road in 1927.

4. Skippack Township has fifty-two miles of road; twenty-five miles of dirt road, 8.7 miles of hard-surfaced road and the rest consists of roads that have been stoned to some extent. The tax rate for road purposes is ten mills, which brings in about $10,000. The supervisors have a floating indebtedness of $4500, but the township has no bonded indebtedness for road purposes.

5. In the fall and winter of 1926-1927, there has been an unusual amount of rain, which began early in the fall and continued late in the winter.

Discussion.

The burden of the complaint of the prosecutrix and her witnesses seems to be that the defendants have failed in their duties as supervisors because they have not built a stone road from the Mennonite Church to the Dunkard Church. They complain of no particular obstruction to travel; they name no specific sink-holes, but say the whole road, at certain times of the year, is bad and that the ordinary repair to dirt roads will not suffice to keep it in condition. The situation, in their opinion, requires a stone road. On the other hand, the evidence of the defendants is to the effect that this road has received the same care and attention as the other dirt roads of the township, from which it differs in no respect. True, the law requires that supervisors keep the highways in repair and free from all obstructions, but this means reasonable repair under all circumstances, taking into consideration the character of the road, the nature of the soil, the amount of travel to which it is subjected, the number of miles of road under the care of the supervisors, and the funds at their command. The weather conditions, also, are a factor where dirt roads are concerned. Before the days of automobiles, the technique of the road supervisors in the care of dirt roads was rather simple. Every spring and summer the roads were scraped and rounded up, the gutters were cleaned out, stones were put in the worst mud-holes, and the road was repaired. With the advent of the motor-car, an entirely different situation presented itself. The self-propelled vehicle depends for its efficiency upon traction, and this requires a hard surface. Old Dobbin could draw the buggy or market-wagon through mud in which an automobile will skid and stick. The taxpayer who cannot use his car by reason of the condition of the roads or who gets stuck in the mud when he does try to use it naturally complains in no uncertain voice, and with the automobile in universal use, with many miles of dirt road to maintain and very limited funds to maintain them, the problems of the supervisors in many of our townships have become acute. To build a road such as some of the witnesses say is necessary would cost $10,000, or the entire income of the township for road purposes for one year, leaving nothing for the other roads.

This the law does not require the defendants to do, but they are required to use reasonable care and diligence in keeping the roads under their supervision in repair.

After careful review of all the testimony and reading the brief submitted by counsel for the prosecution, in the light of all the circumstances, we are not satisfied that the defendants have been guilty of neglect of their duties as supervisors.

We do not want to be understood as countenancing sloth or wilful neglect of duty upon the part of road officials, for we find no evidence of either in this case. Neither do we favor the promiscuous prosecution of road supervisors. If the law is made to bear too hard upon them and they are constantly harassed by threats of arrest, it is going to become increasingly difficult to get competent and self-respecting citizens to occupy the office, especially when the remuneration is as small as at present. Nearly all the witnesses in this case were the drivers or users of automobiles, and the condition of this road, like many of our township roads, is far from satisfactory to the citizen who uses an automobile. But the difficulty is due to the change in the manner of travel far more than to neglect of duty on the part of the supervisors. Some stones should be placed upon this road, and, in reaching our conclusion in this case, we were moved in no small degree by the uncontradicted evidence that the same supervisors had ordered stone in the summer of 1926 and were only prevented from placing it upon the road by the unusual early rains in the fall. We are, therefore, of the opinion that the defendants should be discharged, and there remains nothing to consider but the imposition of costs. We feel, in this case, that the costs should' be paid by the County of Montgomery: Meredith et al. v. Bradford County Commissioners, 26 Dist. R. 151.

And now, April 29, 1927, the defendants are found and adjudged not guilty, and the costs are placed upon the County of Montgomery.

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


author: Fox, J.,

text:
    Handler v. Harrisburg Mutual Loan Association.
    ■ Statement of claim — Sufficiency—Corporations—By-law requiring repurchase of its stock — Validity.
    1. A statement of claim is insufficient in an action by a stockholder against the corporation for the price of his stock, which he offered to surrender pursuant to a by-law which provided that any member might withdraw liis shares at any time on giving the required notice, where the statement fails to show the nature of the corporation or its business or to set forth any facts which would enable the court to determine whether it had authority to pass such by-law.
    2. Such by-law would require the corporation to repurchase all of its stock and leave it without stockholders, which is contrary to the law relating to corporations.

      Assumpsit against a corporation for value of stock purchased by plaintiff. Statutory demurrer. C. P. Dauphin Co., Sept. T., 1926, No. 1353.
    May 16, 1927.
   Fox, J.,

We have before us an affidavit of defence to plaintiff’s statement raising a question of law.

The statement, in substance, alleges that the plaintiff is a resident of the City of Harrisburg, and that the defendant is a corporation, duly incorporated under the laws of our State, with its home office in the City of Harrisburg, Pa.; that he is the owner of twenty shares of the capital stock of the defendant association; that section 1 of article iv'of the by-laws of said association provides, inter alia: “Any member may withdraw his shares at any time, providing thirty days’ notice for same has been given, and also providing that he is cleared from all his signatures in the association;” that, under the provisions of this by-law, the defendant association is liable to repay to the plaintiff the full amount of the principal sum of the certificate of stock, a copy of which is attached to the statement; that the plaintiff purchased his stock while the by-law was in force, is cleared from all signatures in the defendant association, and has done everything necessary for him to do under the by-law above quoted, and is entitled to receive the full principal sum of the certificate of stock, together with interest; that he has tendered the said certificate to the association for collection and redemption and still tenders the same to the association; that the said certificate was not issued as an instalment certificate in consideration of the payment of dues, but was issued in consideration of the full payment by the plaintiff to the defendant of the principal sum of par value represented thereby; that, on or about Aug. 16, 1921, the plaintiff paid to the defendant association, in lawful money of the United States, the sum of $500 in full payment of twenty shares of stock of the said association of the par value of $25 per share; and that, on the same date, the said association issued to the plaintiff a certificate, numbered 103; that, on or about Nov. 23, 1926, the plaintiff, by his attorney, duly gave and delivered to the said defendant association, through its proper officers, his notice and demand, in writing, requiring the said defendant, within thirty-days from the receipt thereof, to pay to him the full principal sum of the certificate in suit; that the said defendant has refused to comply with this demand, and there is, therefore, due to the plaintiff from the defendant the sum of $500, together with interest thereon from Jan. 1, 1927.

To this statement, the defendant association filed an affidavit of defence in lieu of a demurrer, in substance, alleging: That the plaintiff’s statement does not disclose any contract against the defendant company upon which a judgment can be legally entered in favor of the plaintiff, since the plaintiff is not a creditor of the defendant corporation; that the by-law upon which the plaintiff rests his claim is contrary to the Constitution and laws of the State of Pennsylvania and is opposed to public policy; that the plaintiff’s right of redress is based on equitable principles, and that, therefore, the Court of Common Pleas has no jurisdiction; and suggests that the statement of claim is insufficient in law and does not set forth a proper cause of action to compel the defendant to answer.

The real question before us is: Is the by-law quoted above a valid one?

The plaintiff’s statement, in section 2, avers: “The defendant is a corporation duly incorporated under the laws of the State of Pennsylvania, having its home office and place of business in the City of Harrisburg, Dauphin County, and State of Pennsylvania.” The statement does not disclose what the purpose of the corporation, as shown by its charter, is, nor its character of business. From its title, it might be presumed to come under the classification of a building and loan association. From the pleadings, we are unable to tell whether it is operating as such or operating under the Act of June 17, 1915, P. L. 1012, which act is known as the “Small Loan Act.” If it is operating as a building and loan association, members, under certain conditions as provided by the statute, may withdraw their stock and receive money therefor. This is a power and privilege peculiar to building and loan associations and their members, but to no other corporation of our State. There is no question that the law is well settled in our State that a strictly private corporation has a right to acquire stock of its own where the transaction is not prohibited by statute and where no injury is suffered by creditors or other stockholders having a superior right: Wolfe v. Excelsior A. S. & S. Co., Inc., 270 Pa. 547. We do not think, however, that this decision contemplates the right of a corporation to purchase the whole of its stock. This by-law, if executed to its full extent, might involve the corporation in purchasing all the outstanding stock. This cannot be done. The Act of April 29, 1874, P. L. 73, as amended by the Act of May 14, 1891, P. L. 61, provides that the by-laws of every corporation organized under the Act of April 29, 1874, P. L. 73, shall constitute its law subordinate to the Constitution and laws of this State and to the Constitution of the United States. Our law requires that a corporation have at least three stockholders at the time of its incorporation; ithe number can never be less, and, if this by-law were exeueted to its full extent, the corporation might be compelled to purchase all of the outstanding stock, might be unable to sell any of the stock in the treasury, and thus be without any stockholders, which we think is contrary to the law relating to corporations. We think it would amount to a dissolution of the corporation, which cannot be effected in this way; the law provides a special and different method for dissolution.

In the case of Schulte v. Boulevard Gardens Land Co., 129 Pac. Repr. 582, the Supreme Court of California said: “But the case is readily distinguishable from the one at bar. There, the plaintiff relied solely upon a by-law which assumed to authorize every subscriber and stockholder to withdraw from the corporation, and, upon returning his stock, • receive what had been paid in. Obviously, this, if upheld, would have made possible a complete destruction and dissolution of the corporation without compliance with the statutory requirements. As a by-law, the provision was clearly bad. But a very different case is presented where an individual sets up a contract whereby the corporation selling him the stock agrees, as part of the consideration, to give him the option of returning the stock and receiving a payment therefor.”

We are, therefore, of the opinion that if this corporation is operating as a building and loan association, it may redeem such portion of its stock as the law relating to building and loan associations permits and provides; if it is not operating as a building and loan association, we think, for the reasons we have given above, the by-law is bad.

In order, therefore, for us to determine the power and the rights of the defendant, as well as the rights of the plaintiff, the statement should show how this corporation is operating. The affidavit of defence, being in the nature of a demurrer, must be sustained, in that the statement of claim is insufficient in law and does not set forth a proper cause of action.

And now, May 16, 1927, the affidavit of defence in lieu of a demurrer is sustained; the plaintiff is given fifteen days from the date hereof to amend his statement.

From Homer L. Kreider, Harrisburg, Fa.


author: Rossiter, P. J.,

text:
    Wolf v. Buffalo House Wrecking and Salvage Company.

      New trial — Negligence—Evidence—Trespasser.
    1. Where, in an action of trespass to recover damages for the loss of a building by fire, it was undisputed that defendants had a right to enter the building solely for the purpose of removing their cars, tools, etc., the court did not err in charging “that while defendants had a right to remove their property, they had no right to use an acetylene torch in the building or to live in the building and put cots in there. All that the deed permitted them to do was to remove their tools and cars."
    2. Where one enters upon property for a certain purpose by the terms of an agreement and exceeds the authority reserved in the agreement to the extent that he exceeds such authority, he is a trespasser.
    3. In such case, the law does not require proof by direct evidence that the fire was caused in a particular way, but it is necessary to establish, by circumstantial or direct evidence, not only that it could come from the cause assigned, but that that was the probable and natural cause, and that defendant’s acts or omissions were the origin of it.
    Trespass for loss of building by fire. Rule for new trial and judgment n. o. v. C. P. Erie Co., Sept. T., 1925, No. 15.

      Enoch C. Filer, for plaintiff; Marsh & Eaton, for defendants.
    April 27, 1927.
   Rossiter, P. J.,

This was an action in trespass brought by the plaintiff to recover damages for the loss of a building by fire. The case was tried before and submitted to a jury, who rendered a verdict in favor of the plaintiff for $4500, whereupon the defendant made motions for a new trial and for judgment n. o. v., and, in support of the motion for a new trial, assigned the following reasons:

1. The verdict was against the weight of the evidence and excessive in amount.

2. There was not sufficient evidence upon which the jury could find a verdict in favor of the plaintiff.

3. The court erred in its charge to the jury.

4. The court erred in charging the jury to the effect that the defendants were trespassers upon the property of the plaintiff.

5. The court erred in its charge to the jury,- in that the jury might assume or guess that the fire was the result of the acts of the defendants.

6. The court erred in not affirming defendants’ first, second, third, fourth, fifth, sixth and seventh points without reservation.

Additional reasons.

1. The learned court erred in charging the jury that “under the pleadings in this case, that while they (defendants) had the right to remove their property, they had no right to use an acetylene torch in the building.”

2. The learned court erred in its charge to the jury in charging that, “if they (defendants) exceeded their authority, and, under the evidence here, they did exceed theirf authority, in going into that building and wrecking those cars — and if they were in there without authority, they were trespassers.”

As to the motion for judgment n. o. v., to quote the oft-repeated rule: On motion for judgment n. o. v., the court will consider all the evidence and inferences therefrom favorable to the plaintiff as true, and will reject all unfavorable to him depending solely upon testimony: Lyndall v. Fidelity Storage and Warehouse Co., 87 Pa. Superior Ct. 344. In this case, the evidence and inferences therefrom favorable to the plaintiff were that defendant’s employees used an acetylene torch, which set fire to a car, which communicated the fire to the building. There were no inference unfavorable to plaintiff whatever, as the uncontradicted evidence was that defendant’s employees had been warned not to have a fire in that building, as there was no insurance upon it; yet, despite the warning, the evidence was that they built fires in the building, stored acetylene tanks therein, slept there, ate there, used an acetylene torch in the building which produced a flame hot enough to melt iron, and there was no evidence that there was any other fire there or anywhere near there.

This disposes of the motion for judgment n. o. v.

To take up, then, the reasons for a new trial seriatim, it may be said that the verdict was not against the weight of the evidence, nor was the verdict excessive; but, on the contrary, the verdict was clearly warranted' by the weight of the evidence, and, instead of beipg excessive, it was for a far less amount than the evidence warranted.

The court did not err in charging the jury to the effect that the defendants were trespassers, as the evidence establishes that they were trespassers, and the evidence to establish that fact was undisputed. The defendants had a right under the deed to enter the building and remove their cars, but they had no right to enter for all purposes. The rights they had were solely for the purpose of removing their cars, tools, etc., under the agreement. Under the agreement, they had a right to do this, but nothing more; and when they built fires in the building, used an acetylene torch, melted the iron on the cars, and burned and dismantled them in the building, they clearly exceeded the rights that were reserved in the deed and became trespassers: Shiffer v. Broadhead, 126 Pa. 260; Truby v. American Natural Gas Co., 38 Pa. Superior Ct. 166. By the very terms of the agreement, their right to enter was restricted to a certain purpose. Upon this point the court instructed the jury “that, while defendants had a right to remove their property, they had no right to use an acetylene torch in the building or to live in the building and put cots in there. All that the deed permitted them to do was to remove their tools and cars. However, notwithstanding the fact that they had no right to do these things, nevertheless, if their doing was not the cause of the fire, then they would not be liable.”

As to the fifth reason for a new trial, viz., that the court permitted the jury to guess that the fire was the result of the acts of the defendants, we said, paraphrasing the language of Justice Kephart, in Propert v. Flanaigan, 277 Pa. 145: “You will observe that there is no witness here, so far as the plaintiff is concerned, who testified to positive knowledge of how this fire started; and, while there is no positive testimony as to how this fire started, we say to you that the law is this, that the law does not require proof by direct evidence that the fire was caused in a particular way, but it is necessary to establish not only that it could come from the cause assigned, but that that was the probable and natural cause, and this may be shown by circumstantial as well as direct evidence. If there are other causes present from which a fire might have originated, the plaintiff must show that defendant’s acts or omissions produced the injury; the other possible causes must be eliminated.” This comported to the latest pronouncement of the Supreme Court called to our attention.

As to the defendant’s first, second, third, fourth, fifth and seventh points, the first point was affirmed as follows: “Affirmed, as already explained.” That the fact that there had been a fire raised no presumption of negligence had been fully explained in the fore part of the charge. And the same applies to the answer to the second point. The third and fourth points were affirmed unqualifiedly. The fifth point was affirmed, as had been previously explained, with the further explanation: “Bearing in mind that you are not confined to direct and positive evidence of negligence, but that negligence may be found from circumstantial evidence if all other causes are eliminated.” Clearly this is a correct statement of the law. The sixth was answered as follows: “You must find that, if you find for the plaintiff: affirmed.” The seventh point was affirmed without qualification. We find no error in any of these answers.

As to the “additional reasons,” as we have already said, we see no error in the instructions given, for the evidence clearly demonstrated that, while the defendants had the right to remove their property, they had no right to dismantle it or use an acetylene torch within the building, and if they did exceed the authority reserved to them in the deed, then, to just the extent that they exceeded their authority, they were trespassers, and the instructions given on that subject to us now, after examination of the decisions, seem to be correct.

After careful consideration of this case, we are of the opinion that there was but one error in it (that is not being complained of by the plaintiff), nor has it been assigned as reason for a new trial, and that is, that this verdict was grossly inadequate, for, under the testimony, the building destroyed was worth far in excess of the amount of the verdict, and the jury having found the facts in favor of the plaintiff (which we do not see how they could have done otherwise), they should have assessed the damages higher. However, these observations are parenthetical, as there is no complaint, at least of record, as to the amount of the verdict.

The rules, therefore, granted Jan. 17, 1927, to show cause why a new trial should not be granted and for judgment non obstante veredicto, are now, April 27, 1927, discharged, and the prothonotary is directed to enter judgment on the verdict upon payment of the jury fee.

From Otto Herbst, Erie, Pa.


author: Gordon, Jr., J.,

text:
    Jones v. Gulf Refining Company.

      Wills — Construction—Estate in fee — Estate tail — “Issue”—Act of June 7, 1917.

    1. Prior to the Act of June 7, 1917, P. 'L. 403, the word “issue” in a will was taken to mean an indefinite failure of issue, unless other language of the will clearly indicated a contrary intention.
    2. Where a testator who died in 1882 devised his estate after the death of his wife to his daughter, “her heirs and assigns for ever, if she shall die leaving lawful issue if she shall die without leaving lawful issue, then, and in that case” over to named children of his own in fee, the daughter takes an estate tail, which is converted, under the Act of 1855, into a fee.
    Motion for judgment on the pleadings. C. P. No. 2, Phila. Co., Dec. T., 1927, No. 8232.

      William II. Wylie, for plaintiff; Maurice W. Sloan, for defendant.
    April 5, 1928.
   Gordon, Jr., J.,

This is an amicable action in ejectment, and the case is before us upon a motion for judgment on the pleadings. The question to be decided involves the interpretation of a clause of the will of Benjamin Levy, who died May 24, 1882. Benjamin G. Jones, the plaintiff, is an heir of Emeline Levy Jones, an executory devisee under the will, and the Gulf Refining Company is the grantee of the property devised by the clause under consideration, its grantor being Miriam Levy, who conveyed the property to the defendant in fee under an asserted claim that she received such a title to it under the will.

The question before us is whether Miriam Levy, whose title vested in her prior to the Act of June 7, 1917, P. L. 403, which changed the interpretation to be given to the word “issue” from denoting an indefinite to a definite failure of issue, acquired an estate for life, or an estate in fee tail, converted by the Act of 1855 into a fee. The clause under consideration provides as follows:

“Item. I give, devise and bequeath unto my beloved wife Annie Levy all my Estate, real, personal and mixed of whatever nature or kind and wherever the same shall be at the time of my death, to have and enjoy the same, for and during her natural life and at her death to go to my daughter Miriam Levy her heirs and assigns forever if she shall die leaving lawful issue if she shall die without leaving lawful issue then and in that case I give, devise and bequeath said Estate unto my children to wdt: Julia Levy, Emeline Levy, Aaron Levy, Benjamin Levy and Charles A. Levy their and each of their heirs and assigns forever, share and share alike.”

Miriam Levy died on July 30, 1927, unmarried and leaving no issue. If, by the language of the will just quoted, she acquired a fee in the property, her conveyance to the Gulf Refining Company, the defendant, was good and judgment should be given in its favor. If, however, she acquired only a life estate, her conveyance to the defendant was bad, and the plaintiff, who, as already stated, is the heir of Emeline Levy, would be entitled to judgment.

It was the well-settled rule of interpretation, when the will before 'us became operative, that the word “issue” must be taken to mean an indefinite failure of issue, unless other language of the will clearly indicated a contrary intention: Smith v. Piper, 231 Pa. 378; English’s Estate, 270 Pa. 1; Wettengel’s Estate, 278 Pa. 571. The question, therefore, arises: Is there anything in the will to show that the word “issue” in the subsequent clauses can have any other meaning than its technical equivalent of “heirs of the body?” In the devises to Miriam, the words are “to my daughter Miriam Levy, her heirs and assigns forever if she shall die leaving lawful issue.” Under the rule just stated, this clause, standing alone, cannot he other than a devise in fee tail. Do the following words indicate a different intention? They are, “if she shall die without leaving lawful issue, then, and in that case,” over to named children in fee. Except for the word “without,” these words are identical with the words in the preceding clause, and, under the same rule, have the same legal effect. The two clauses, taken together, are equivalent to saying, “I give and devise to Miriam a fee tail, and if the fee tail fails, then, and in that case,” to others in fee. It seems to us that no other meaning can be gathered from these words. If this be so, the executory devise over is void for remoteness, and it follows that Miriam took an estate tail, which was converted into a fee by the Act of 1855: Ingersoll's Appeal, 86 Pa. 240; Hackney v. Tracy, 137 Pa. 53; Smith v. Piper, supra. The decisions cited in plaintiff’s brief (such as Stoner v. Wunderlich, 198 Pa. 158) are clearly cases of a definite failure of issue. In Mebus’s Estate, 273 Pa. 505, the limitation over was to “surviving” brothers, and so, also, in Martin v. Grinage, 289 Pa. 473. In Stout v. Good, 245 Pa. 383, the will said, “in the event of my said daughter leaving no issue at the time of her death,” and so, likewise, in Beckley v. Riegert, 212 Pa. 91, and Nes v. Ramsay, 155 Pa. 628, the language of those wills shows clearly that a definite failure of issue was meant.

We cannot agree with the argument of the plaintiff that the devise to Miriam was dependent on the happening of a contingency implied from the use of the word “if.” This word occurs of necessity in practically all cases of this kind, and, if it were given so controlling a significance, the law as established at the time would be practically defeated. The weight of authority seems to us to be clearly with the position taken by the defendant, that Miriam took an estate tail, which, by the Act of 1855, was converted into a fee, and she was, therefore, in a position to convey the fee thus acquired to the defendant.

Accordingly, judgment is entered, under the pleadings, in favor of the defendant, the Gulf Refining Company.


author: Lamorelle, P. J.,

text:
    Rosney’s Estate.

      Wills — Construction—Bequest—Personal estate — Gift of personal estate without deduction.

    Where a testator bequeaths to a sister "all one-third of all my personal property, that is, money in bank, etc., absolutely,” and it appears that the money in bank constituted his entire personal estate, the legatee is entitled to one-third of such money without deductions of any kind, except the transfer inheritance tax thereon. Debts and administration expenses are to be paid out of the other two-thirds of the fund.
    Exceptions to adjudication. O. C. Phila. Co., July T., 1927, No. 2427.

      Joseph M. Smith, for exceptions.

      Byron, Longbottom, Pape & O’Brien, contra.
    March 12, 1928.
   Lamorelle, P. J.,

Thomas P. Rosney’s will is in part as follows:

“Item: I direct all my debts and funeral expenses fully paid. . . .
“Item: I give . . . 2528 E. Somerset Street to my . . . sister Ellen J. Buckley. . . .
“And together with all one third of all my personal property, that is, money in bank, etc., absolutely.
“Item: I give ... to ... St. Joseph’s House for Homeless Industrious Boys . . . Two hundred Dollars . . . free of tax.
“And as to all the rest, residue and remainder of my estate, real, personal er mixed, . . . I . . . give, devise and bequeath to my . . . Sisters . . . Mary A. Donohue, Kate Hede, Ellen J. Buckley, also my two . . . brothers . . . John Rosney and James Rosney, share and share alike. . . .”

At the time of testator’s death he had on deposit upward of $10,000, and, so far as the accounting is concerned, this fund constitutes his entire personal estate.

The Auditing Judge awarded Ellen one-third of the personal property, after deduction of debts and administration expenses. She filed exceptions, claiming that the Auditing Judge should have awarded her one-third of the money in bank without deductions of any kind.

The one question, therefore, to be determined is the meaning of this clause of the will.

The language quoted, considered by itself, is plain and unambiguous. “All” means without deduction. Apparently to express himself more emphatically, or with more exactness, the word “all” is repeated; that is to say, “all of one-third of all of my personal property.”

In reaching his conclusion, the Auditing Judge relied mainly on an adjudication in McGowan’s Estate, 1 D. & C. 152. In that case it appears that testatrix, after making numerous bequests, gave one-half part of her “whole estate” to Cardinal Logue. This clause was followed by a small legacy and a residuary clause in favor of a Catholic charity. The Auditing Judge said that a man’s estate was what was left after his debts and administration expenses had been paid, and that the Cardinal was, therefore, entitled to one-half of the net estate.

The word “estate,” however, is not used in the instant case. The words used are “all property” and “money.” These words have always been heretofore construed as meaning (as will appear from the cases subsequently cited) the gross amount of property or money which the decedent owned at the time of his death.

McGowan’s Estate, supra, on its facts, is not a precedent.

The Auditing Judge also relied on Walker’s Estate, 3 Rawle, 229. In that case testator made a bequest of all his personal property, made specific devises of certain real estate, and gave the residue of his estate to his son. After the execution of the will he acquired other real estate. As the will was executed prior to the Act of April 8, 1833, P. L. 251, it was held that testator died intestate as to such real estate. The court said there was nothing in the will to indicate an intention to exonerate the personal estate from the payment of debts and administration expenses, and, therefore, applied the general rule that the personal estate is the primary fund for such purpose.

Walker’s Estate, supra, is plainly distinguishable from the instant case. The question arose there between the legatee of all the personal property and the heir. Here, the question arises between a legatee of “all one-third of all my personal property” and those to whom the rest, residue and remainder is given. As was said in Reel’s Estate, 266 Pa. 221, 223, “what the ‘rest and residue’ of the estate will be cannot be ascertained until the debts, legacies and expenses of administration are paid.”

Gruner’s Estate, 269 Pa. 575, in our opinion, is the case that is controlling. In that case testator, after directing the payment of his debts, bequeathed to a niece two legacies, aggregating $46,000, out of his estate, and also gave her “all” (his) “personal property,” describing it with some particularity. He also directed his executor to sell his real estate and to divide the residue of his estate among certain named persons. At the time of his death he owned personal property worth a trifle over $40,000. The report does not disclose the amount of the debts and administration expenses, but a reference to the record shows they amounted to approximately $15,000. The court, notwithstanding the fact that the direction to pay the debts preceded the gift of “all” (his) “personal property,” and that the beneficiary was a niece and not a widow, two circumstances on which the Auditing Judge placed some stress, held that the words “all” (his) “personal property” meant “all” without any deduction, and applied the general rule that the legacies, debts and administration expenses were payable out of the residue; that is, the proceeds derived from- the sale of the real estate.

In Thompson’s Estate, 229 Pa. 542, the court also held that no part of the debts or administration expenses were payable out of a bequest to the widow of “one-half of all my personal property.” In that case the testator also made certain pecuniary bequests. The court, inter alia, said: “There is no more reason why it should pay the debts and the expenses of administration of the estate than the other legacies. The amount of her legacy was made certain by the language used.” See, also, Glick’s Estate, 28 Dist. R. 994; Hershey’s Estate, 200 Pa. 562, and Gilchrist’s Estate, 9 Dist. R. 249, where the word “all," used in connection with certain property, was construed as meaning “all” and not something less than all.

We are, therefore, of opinion that Ellen J. Buckley is entitled to receive one-third of the money that was in bank at the time of the death of testator, less transfer inheritance tax thereon, and in this conclusion the Auditing Judge concurs. The exceptions are accordingly sustained, and the executor is directed to make distribution in accordance with this opinion.

Van Dusen and Stearne, JJ., did not sit.

Henry C. Niles, P. J., 19th judicial district, Auditing Judge, present.