author: Thompson, J. Lamorelle, P. J.,

text:
    Cancelmo’s Estate.

      Robert P. Shick, for exceptions.

      H. Crowell Pepper and Ladner & Ladner, contra.
   Thompson, J.

— Decedent died Jan. 15, 1927, and the exceptions before us relate to the action of the Auditing Judge in rejecting the claim of Citizens Bank and Trust Company of Tampa, Florida, against the decedent for $35,000, with interest from June 15, 1927, made under the following written agreement:

“Know All Men by These Presents: That for and in consideration of the sum of One ($1.00) Dollar to each of us in hand paid by the Citizens Bank. and Trust Company, of Tampa, Florida, a corporation, the receipt whereof is hereby acknowledged, and in further consideration that the loans and advances hereinafter referred to are being and are to be made at our request, we, the undersigned stockholders and officers of the Growers Sales Company, Inc., a corporation under the laws of the State of Florida, do, jointly and severally, hereby guarantee to the said Citizens Bank and Trust Company the payment at maturity of any and all sums which the said Citizens Bank and Trust Company may lend or advance to the said Growers Sales Company or which the Growers Sales Company [may in any way owe to the Citizens Bank and Trust Company] by reason of indorsements, acceptances, overdrafts, drafts, or in any other way whatever, up to and not exceeding the sum of Thirty-five Thousand ($35,000.00). It being understood that this Guarantee is a continuing Guarantee covering all sums bon-owed prior to May 31st, 19&7, and is to guarantee to the Citizens Bank and Trust Company the payment at maturity of any indebtedness which said Growers Sales Company may owe to said bank, but not to exceed at any time the said sum of Thirty-five Thousand ($35,000.00) Dollars.

:Tn Witness Whereof, we have hereunto set our hands and seals on this the — day of August, 1926.
“O. C. Stewart (Seal)
L. C. Edward (Seal)
L. M. Morrow (Seal)
L. J. Lippman (Seal)
J. & C. Lippman & Co., N. Y.
“C. M. Bly (Seal) A. Cancelmo, Phila.
T. J. Cancelmo (Seal) F. E. Nellis & Co.
F. E. Nellis (Seal) Chicago (Seal)”

We have underlined [italicized] the above as indicating an interlineation in the original agreement, which the uncontradicted testimony shows was inserted before signing.

The Growers Sales Company, a Florida corporation, was engaged in the business of buying and packing fruit, and desired to borrow some money from the claimant bank, who demanded as a condition precedent to any loans that the Growers Sales Company should give them collateral, or a guarantee that the notes would be paid, in response to which demand the above guarantee was given, the signers of the same being officers and stockholders of the Growers Sales Company. On Aug. 18, 1926, the claimant bank loaned the Growers Sales Company the sum of $35,000, taking one note for $25,000 and one note for $10,000, both dated Aug. 18, 1926, and maturing Nov. 16, 1926. These notes were not paid in cash at maturity, but were renewed by new notes given for the same amount maturing Feb. 15, 1927. These, in turn, were renewed by new notes maturing April 15, 1927. These, in turn, were renewed on April 15, 1927, by new notes maturing June 15, 1927, which were also not paid in cash, and are the notes upon which the claim is made.

The Auditing Judge held that the renewal of the notes in November, 1926, was such an extension of time granted the debtor as would relieve the sureties without their consent thereto. We are of the opinion that this ruling was error, as these are not the notes upon which claim is made. The adjudication and briefs discuss the legal proposition that the giving of time to the debtor without the consent of the surety discharges the surety. We do not dispute this proposition of law, but are of the opinion that the same has no application to the facts of this case. This is not a case of commercial paper, but one of suretyship: Quaker City National Bank v. O’Callahan, 95 Pa. Superior Ct. 69.

We are of the opinion that the principle laid down in the case of Marquardt’s Estate, 251 Pa. 73, to wit, that the defendants were sureties and not endorsers, is applicable to the case under consideration. In that case subscribers to the stock of a corporation gave their notes for the amounts of their subscriptions, and the officers of the corporation took these notes to the bank for discount, which the bank refused to do unless the officers became personally responsible. Thereupon one of the directors drew a note to the order of another director, which was endorsed by each of the other fifteen directors. Upon the delivery of this note to the bank, the bank discounted the notes given for stock subscriptions, one of which was not paid. Fourteen months thereafter, without presentation or protest, a suit was started against the estate of one of the deceased endorsers, and the defense was that as an endorser they were entitled to have the notes presented for payment and notice of non-payment given, which not being done relieved the endorser. Mr. Justice Stewart, at page 76, said:

“If this collateral note were what on its face it purports to be, a negotiable paper made and accepted in due course, there could be no answer to the objection urged. But any such assumption goes wide of the mark when we consider the object and purpose of the note, and the relation of the parties whose names appear thereon to such object and purpose and to each other in connection therewith. The note represented no existing indebtedness as between the parties to it; the drawer owed nothing to the drawee; the latter received nothing from his endorsee, nor did any subsequent endorser from any prior endorser. All the parties to the note were directors of a corporation which could realize upon the securities it held only as the directors would lend their individual credit collaterally. This the directors agreed to do, and the note in question was joined in by them to accomplish this one end. To apply the law merchant to such a note, given under such circumstances, would effect results not only never contemplated but unjust and inequitable in the extreme.”

The principle above announced was applied under a different state of facts in Friedman v. Maltinsky, 260 Pa. 312, in which Marquardt’s Estate, supra, was cited with approval.

When the above guarantee was signed, no money had been loaned by the claimant bank to the Growers Sales Company, and, therefore, there was no particular maturity date for any indebtedness when the sureties signed the above agreement. The question of the time of repayment of whatever sums the bank might loan to the sales company was left entirely within their judgment and discretion, and they could have made the maturity date June 15, 1927, if they so desired. The sureties were not to be consulted, nor were they concerned. All that the sureties were concerned about was that the amount loaned by the bank to the sales company should not exceed $35,000, and should be loaned before May 31,1927, and if, when the first loan was made in August, 1926, maturing in November, the bank and the sales company agreed that the maturity in November should be changed to February, and so on, it was within the letter and spirit of the agreement, and was not any concern of the sureties.

The claim should have been allowed for another reason, which has nothing to do with extensions of time, and that is the concluding sentence in the guarantee, as follows:

“It being understood that this Guarantee is a continuing Guarantee covering all sums borrowed prior to May 31, 1927, and is to guarantee to the Citizens Bank and Trust Company the payment at maturity of any indebtedness which said Growers Sales Company may owe to said Bank, but not to exceed at any time the said sum of Thirty-five Thousand ($35,000) dollars.”

We have underscored the word “any,” as above, in order to emphasize the fact that the guarantee relates to any indebtedness prior to May 31, 1927, and not exceeding the sum of $35,000.

It will thus be seen that the sales company was indebted to the bank in April, 1927, in the amount of $35,000, maturing June 15, 1927, and it has not been repaid. This is within the limit of the amount and time fixed in the guarantee, so that we then have a case where extension of time does not enter into its consideration.

Under the above quoted sentence of the guarantee, the signers agreed to pay to the bank any sums not exceeding $35,000, which the bank loaned to the Growers Sales Company. As it is not controverted that the bank loaned the sales company $35,000, we see no reason why the plain guarantee of the signers of the agreement should not be enforced against them, and this without considering whether or not any extension of time had been given in the earlier transactions.

The notes upon which claim is made were dated April 15, 1927, and were within the time limit of the above contract, and did not exceed the amount set forth in the contract. This being the fact, the decedent’s estate is liable, irrespective of what had been the relations of the bank and the sales company as to loans prior to April 15, 1927. At that date the sales company owed the bank $35,000, which is evidenced by the notes upon which claim is made, and, therefore, there is no question under this view of any extension of time whatever.

There is no evidence to support the first exception, subdivision (b), the second exception and the third exception, and they are, therefore, dismissed.

The first exception, subdivisions (a) and (o), and the fourth, fifth, sixth and seventh exceptions are sustained, and the claim of the Citizens Bank and Trust Company of Tampa, Florida, is allowed in the sum of $35,000, with interest from June 15, 1927, and the adjudication is modified accordingly, and as so modified is confirmed absolutely.

By writing filed, it is suggested that the Citizens Bank and Trust Company is insolvent, and that C. L. Knight was appointed liquidator thereof by the Circuit Court of Hillsborough County, Florida, on Aug. 7,1929.

[The foregoing opinion was prepared by Judge Thompson before his death, and has been adopted by the majority of the court, and is now filed by me at its direction. Stearns, J., July 21, 1930.]

Lamorelle, P. J.,

dissenting. — The agreement recites a consideration of one dollar and that “loans are being made and are to be made at our request;” guarantees payment at maturity of “any and all sums which the said .... Company may lend;” and provides that it is a continuing guarantee of “all sums borrowed prior to May 31, 1927, and is to guarantee . . . the payment at maturity of any indebtedness which said . . . Company may owe to said bank.’*

The words “payment at maturity” occur in the fore and latter part of the agreement. Giving a renewal note is not payment; as respects the guarantor, it is merely extending the time of payment. But, in answer to this, it is said, considering the agreement as a whole, the bank could have fixed May 31, 1927, as the date of maturity; and, consequently, notice of renewal was not necessary to be given to the guarantors.

It is an elementary principle of law that words or combinations of words must be given their customary and ordinary meaning, and this rule must be applied, unless a repugnancy between them and other parts of the document would result, or where ex necessitate a more restricted or enlarged meaning must be ascribed to them. In my opinion, full effect can be given to the words “payment at maturity,” and if this be done, it will not in any way derogate from the other language of the document. The signers of the agreement contemplated that a number of loans might be made during the period covered by it. They were willing to guarantee the payment of the respective loans at their respective maturities. They had in mind that the total aggregate of the loans might exceed $35,000, but that was a matter of indifference to them, provided that the total unmatured indebtedness never, at any time, exceeded that sum. They contemplated the possibility of loans being paid at maturity during the existence of the agreement; and if at the termination of the agreement the unmatured loans did not exceed $35,000, they were willing to assume responsibility for the payment of the indebtedness.

It is to be noted that the agreement recites that “loans are being made and are to be made at our request.” The words “are being made,” in my opinion, refer to loans being made contemporaneously with the signing of the agreement, and the amounts and the maturities of which were then known; and the words “are to be made,” to future loans. The agreement was signed on Aug. —, 1926. The original notes bear date Aug. 16, 1926. The logical inference is that these were the loans that were intended to be comprehended by the language “are being made.” It follows, if the date of the maturity of the original obligation was fixed and known, that a more distant date could not be substituted by an agreement between the bank and the company without the consent of the guarantors.

In my opinion, the exceptions should be dismissed.


source: Caselaw Access Project

author: Kooh, Dep. Att’y-Gen.,

license: Public Domain

text:
    Term of Notary Public.
    March 31, 1930.
   Kooh, Dep. Att’y-Gen.,

— In your letter of Feb. 14 you request the opinion of this Department concerning the method to be employed in ascertaining the date of commencement and the date of expiration of the term of a notary public appointed by the Governor under the provisions of the Act of April 4, 1901, P. L. 70.

Section 1 of the Act of 1901 provides that notaries public appointed by the Governor during the recess of the Senate shall each receive a commission that shall expire at the end of the next session of the Senate. There seems to be no uncertainty as to the meaning of this section. The term of a notary public appointed by the Governor during the recess of the Senate expires at midnight of the day upon which the session of the Senate has ended. The law knows no fraction of a day.

Section 2 provides that when notaries public appointed by the Governor during the session of the Senate, and those appointed under the provisions of the first section of the Act of 1901, are duly confirmed by the Senate, they shall each be entitled to receive a commission for the term of four years, to be computed from the date of such confirmation.

The question arises as to when a commission issued to a notary becomes effective and when it expires.

On June 20, 1883, the Governor approved an act “To regulate the computation of time under statutes, rules, orders and decrees of court, and under charters and by-laws of corporations, public and private.” '(P. L. 136.) In accordance with the provisions of this act, the period of time shall be computed so as to exclude the first and include the last day of the prescribed period.

You are, therefore, advised that the four-year term of a notary public is to be computed to exclude the date of his confirmation. For example, if a notary public’s appointment is confirmed by the Senate on Feb. 28, 1931, his term will commence March 1, 1931, and expire at midnight Feb. 28, 1935.

Section 3 of the Act of 1901 provides that where notaries public are reappointed by the Governor and confirmed by the Senate before the expiration of their commissions, they shall each receive a commission for a term of four years, to be computed from the date of the expiration of their previous commission.

The same rule of construction must apply- in relation to reappointments under the provisions of the above section. The new term will be computed from the date of the expiration of the previous commission and will expire at midnight of the day of the fourth anniversary of the date of the commission. In other words, in the case of the notary above instanced, the new term would commence March 1, 1935, and would expire at) midnight Feb. 28, 1939.

From C. P. Addams, Harrisburg, Pa.


author: Langham, P. J.,

text:
    Lightcap et al. v. Swan et al.

      W. C. Chapman and E. E. Coyne, for petitioners; John A. Scott, contra.
    Feb. 17, 1930.
   Langham, P. J.,

— The plaintiffs in the above stated case, children of three sons of Solomon Lightcap and widow of Foster, a son, brought this action against the defendants, children of two daughters of the said Solomon, upon a petition filed Sept. 27, 1926, praying the court to issue a citation to the defendants to appear in court to show cause why the lands situate in Rayne Township, Indiana County, devised by Solomon Lightcap to his three sons, Wilson Lightcap, Solomon Poster Lightcap and Samuel Godfrey Lightcap, should not be discharged from the liens- of the legacies bequeathed to his two daughters, Mary Ann, intermarried with Archie G. Earhart, and Sarah Jane, intermarried with Samuel Swan, as provided by the Act of Assembly approved June 7, 1917, § 27, P. L. 447.

The said Solomon Lightcap died Aug. 19, 1889, testate, leaving a last will and testament, dated Dec. 26, 1882, probated Sept. 10, 1889, in which his son, Solomon Poster Lightcap, was named as one of the executors, and filed the first and final account of his father’s estate to No. 7, June Term, 1922, in the Orphans’ Court of Indiana County.

The testator, Solomon Lightcap, devised to each of his three sons herein mentioned certain farms in Rayne Township. His will also provided that the sum of $1200 should be paid to his daughter Mary Ann and also $1200 to his daughter Sarah Jane, since intermarried as aforementioned, the last payment to be made three years after the death of testator. That brings the controversy up to Aug. 19,1892.

The petitioners have not alleged, nor offered any proof, that actual payment of the legacies charged in the will of Solomon Lightcap in favor of Sarah Jane Swan and Mary Ann Earhart, daughters aforesaid, or their legal heirs or representatives, defendants, was at any time heretofore made, except in part; but it is alleged that no payment was made within the period of twenty years, and they take the position that the lands bound by the legacies are no longer chargeable therewith, under the Act of June 7, 1917, by reason of the presumption of payment; and after the expiration of twenty years from the due date of the legacies, to wit, Aug. 19‘, 1912, a legal presumption of payment arises, regardless of whether the record shows payment or not.

On the margin of the record of said will are receipts signed by Mary Ann Earhart and Sarah J. Swan for the sum of six hundred ($600) dollars each on their legacies of twelve hundred ($1200) dollars each, leaving as not paid by the devisees of the lands six hundred ($600) dollars to Mary Ann Earhart and six hundred ($600) dollars to Sarah J. Swan, or their respective heirs and representatives, being the defendants in this case.

Section 27 (b) provides, inter alia, that where by a last will any legacy shall have been charged upon any land (admittedly as in this case), if any such charge shall have been paid, or a period of twenty years shall have elapsed after the principal of such charge has become due and payable, and no payment shall have been made within such period by the owners of the land, it shall be lawful for the Orphans’ Court to entertain a petition for the discharge of said land from the lien of said legacy.

Section 27 (b), 2 and 3, prescribe the substance of the petition and the method of service on parties interested, and under 4 the duty of the court is to fix a hearing to determine, before any .decree can be made in favor of the plaintiff, that the legacy has been paid or is otherwise no longer chargeable upon the land by reason of a presumption of payment.

In this case the hearing required by the act has been had. The record of the will in evidence shows a part payment, to wit, six hundred ($600) dollars to each legatee. Then, the remaining question to be determined is, is there a presumption that the balance of six hundred ($600) dollars to each legatee from lapse of time (twenty years) has been paid? Payment will be presumed after twenty years, unless demand is shown to have been made within twenty years of the due date. If the testimony shows that such demand as is recognized by the law has been made by the defendants or their predecessors in interest, then the requirements of the statute have not been met by the plaintiifs, and no order can be made discharging the lien of the balance of the legacies.

It is not claimed by defendants in the instant case that the legacies charged on the lands of Foster Lightcap, Wilson Lightcap and Samuel Lightcap are recoverable, unless there is proof of demand, or a declaration or acknowledgment of their existence within twenty years. In other words, the defendants assume the burden of proof that demand was made within twenty years from the due date of the legacies, Aug. 19, 1892, to wit, about May, 1909, and to establish such demand or acknowledgment of indebtedness produce the following testimony:

Frank C. Earhart. By Mr. Rowan: “Q. Who is Foster Lightcap? A. He is an uncle of mine, a brother of my mother. Q. When and on what occasion did you have a conversation with him about this matter of payment? A. In May, 1909. Q. Where? A. Out at his place. Q. What time of day? A. Along in the evening. Q. State what the conversation was about? A. Well, I asked him for this money, and he said he knew he owed it, but he wasn’t going to pay it then. Q. To what money did you refer? A. Money he owed my mother from grandfather’s estate that had never been paid. Q. Did you make any formal demand? A. I asked him two or three times, and he said they weren’t going to pay it now.”

Edgar Lightcap. By Mr. Scott: “Q. In 1906 you were present at a meeting between Clarence D. Swan .and your Uncle Foster and Wilson Lightcap? A. Yes, I was present. Q. Where was that? A. Well, we drove from Hawthorn School. The details on that case are a little long. I think it was in 1905, but that is neither here nor there. I believe Clarence D. Swan was teaching at Hawthorn school that year. I was attending school there. There had been a good bit of talking about this. I didn’t know much about it, and I said to Clarence, ‘well, let’s go and see about it.’ Q. Did Clarence ask you anything about it? A. Oh, he talked about it. Q. Did he say you people ought to pay his mother? A. No. Q. What was he talking about? A. He was talking about the money that was coming to them. Q. And you said you didn’t know anything about it? A. Well, I wasn’t of age. I was a minor. Q. Did you suggest that you go and see your two uncles? A. Yes, sir, I did. Q. Your father was then dead? A. Yes. Q. Where did you go? A. To Wilson Lightcap’s first. Q. What did Clarence say to them? A. He didn’t say anything. Q. Well, you went up there for the purpose of seeing him? A. I went there for the purpose of asking him before Clarence about this. Q. Did you ask him? A. I did. Q. What did he reply in the presence of Clarence? A. He said there was nothing due. Q. Didn’t Clarence reiterate he thought there was? A. He did not. Q. Didn’t say a word? A. He did not. Q. Then, where did you go? A. To Foster Lightcap’s, another uncle. Q. What was said there? A. • About the same conversation. Q. Clarence D. Swan was administrator of his mother’s estate? A. That I can’t say. Q. He went up there with you? A. Yes, sir. Q. And never opened his head about it? A. He did not. I did the talking. Q. What did you say to them? A. I asked him if there was anything due. Q. Did you limit that to Clarence who was there with you wanting to know why it wasn’t paid? A. Well, he was there; I don’t know if I said anything about that. Q. You had gone up for that purpose? A. I went up for the purpose of asking Uncle Foster and Uncle Wilson about it. Q. He made no demand at all? A. No demand was made in my presence. Q. But you did ask them and state to them that Clarence was wanting the money he was claiming was due to his mother? A. No. Q. What did you say exactly? A. I said I had heard so much about it I wanted some first hand stuff about it. Q. What was the answer? A. There was nothing due them. Q. Is that all that was said? A. That is all.”

Glen Swan. By Mr. Scott: “Q. State whether the witness on the stand told you in the conversation you had with him in front of the First National Bank in 1925 or 1926 that he was present when your brother Clarence D. Swan made a demand on Foster and Wilson Lightcap for the payment of the legacy due your mother’s estate? A. He did.” By Mr. Creps: “Q. What words did he use? A. He asked him for the money owing my mother. Q. What words did Ed Lightcap use in talking with you? A. Well, he said they had asked them for that money. Q. Did he say they had asked for the money or did he say they had come up there to ask whether there was anything due? A. The money. Q. He asked for the money? A. Yes, sir. Q. You couldn’t be mistaken it was the way Ed Lightcap said, they went up there because he was his Uncle Wilson and wanted to know first hand about it? A. In the first place, he came to my brother and wanted to have the thing settled up. Q. He was the one who wanted to go up there and see about it? A. Clarence had started it in the first place.”

The plaintiffs object to the competency of the witnesses, Frank C. Earhart, Ed Lightcap, one of the plaintiffs called as on cross-examination, and Glen Swan. If Frank C. Earhart is an incompetent witness, then this case falls and a decree should be made discharging and freeing the lands from the liens of the legacies. It will be observed that Frank C. Earhart is one of the defendants, a son of Mary Ann Earhart, a legatee under the will of Solomon Lightcap, and at the time of the alleged demand made of Foster Lightcap the said Mary Ann Earhart was deceased. As the argument has been presented to the court by counsel for the plaintiffs, if Frank C. Earhart is a competent witness, which is denied by plaintiffs, he is made so under the latter part of clause (e), section 5, of the Act of May 23, 1887, P. L. 159, which clause in full reads as follows:

“Nor where any party to a thing or contract in action is dead, or has been adj'udged a lunatic, and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record, who represents his interest in the subj'ect in controversy, shall any surviving or remaining party to such thing or contract, or any other person whose interest shall be adverse to the said right of such deceased or lunatic party, be a competent witness to any matter occurring before the death of said party or the adjudication of his lunacy, . . . unless the issue or inquiry be devisavit vel non, or be any other issue or inquiry respecting the property of a deceased owner, and the controversy be between parties respectively claiming such property by devolution on the death of such owner, in which case all persons shall be fully competent witnesses.”

However, counsel for the defendants contend that in clause (e) the exception, by reason of death or lunacy of a party in said clause designated, is, under certain circumstances, modified, as here, so as to make the otherwise incompetent witness competent. Under the rule of evidence laid down in Allen’s Estate, 207 Pa. 325, construing clause (e) of the Act of 1887, supra, it would seem that Frank C. Earhart is a competent witness. In the above case, Justice Brown said: “Since the passage of the Act of 1887, competency is the rule; ineompetency the exception. . . . Whether what the son received from the father be regarded as gifts or advancements, no right of the father thereto or therein passed, either by his own act or by the act of the law, to a party on the record; and the son was not, therefore, within the incompetency of clause (e), section 5, of the Act of 1887.”

In the case at bar no right of Foster Lightcap, or of the other devisees to the legacies given under the will of Solomon Lightcap to his two daughters, passed either by the individual act of the devisees or by the act of law to any adverse party on the record. The right to these legacies was in the daughters and passed on their death to their respective heirs and representatives. The legacies were as distinct and separate to the daughters as were the devises of land to the sons. We cannot see that the issue in the record raises a controversy about “a thing or contract in action” by and between Foster, Wilson and Samuel Lightcap, or their successors in title, and the successors or representatives of Sarah J. Swan and Mary Ann Earhart, as the controversy touches no right of the sons in the lands devised to them, and no slight thereto or therein which has passed either by their own act, or by the act of law, to the plaintiffs. If the demand had been made immediately when the legacies became due, that would certainly not have been an adverse claim to any right in the devisees, Foster, Wilson or Samuel Lightcap.

This is an equitable proceeding, and it occurs to the court that it would be inequitable to decree interest to be paid on these balances of six hundred ($600) dollars each due to the heirs of Sarah J. Swan and Mary Ann Earhart, on account of the inactivity and evident laches in attempting to collect the unpaid balances. In fact, this matter is before us, not because of any action brought by the defendants, but on account of the plaintiffs’ activity to free the lands from the liens of the legacies. Admittedly, the legacies were due Aug. 19, 1892, and no demand was made until May, 1909. No action at all appears on the part of defendants, but plaintiffs filed their petition Sept. 27, 1926, thirty-four years after the due date of the legacies in controversy. We can see no equity in exacting interest in reward for such inactivity.

The petition of the plaintiffs for a citation in this case has given to the court full jurisdiction of the subject-matter, and power to dispose of the case and make such order and decree as in justice and equity the court shall deem meet.

In Postlethwaite’s Appeal, 68 Pa. 477, 480, in the opinion, Justice Sharswood states: “There was no incongruity as is supposed in the decree below dismissing the petition of the appellants with costs, and at the same time making a decree in favor of the respondent, awarding the principal of the legacy to him. ... It is evident that the jurisdiction of the court having attached by the presentation of the petition, it has entire control of the subject as a court of equity would have. Having all parties before it, it can and ought to make such decree as law and equity require, and which will be binding upon all. It may, therefore, dismiss the petition of one who shows no right, and decree that the legacy charged shall be paid to another to whom it is adjudged to belong.”

The court, therefore, in accordance with the findings and conclusions contained in the foregoing opinion, makes its order and decree as follows:

Decree.

And now, Feb. 17, 1930, upon due consideration, it is adjudged and directed that the rule be discharged and the petition dismissed, and it is hereby adjudged and decreed that the sum of six hundred ($600) dollars, with interest from this date, is payable to Clarence D. Swan, Glenn C. Swan and May F. Swan Rankin, heirs of Sarah Jane Swan, legatee, and the sum of six hundred ($600) dollars, with interest from this date, is payable to Frank C. Earhart, Minnie Earhart Hoffman, Edna Wissel Earhart and Ruth Earhart, a minor, heirs of Mary Ann Earhart, legatee, defendants.

It is further ordered and decreed that Annie E. Lightcap and William B. Lightcap, heirs of Wilson Lightcap, devisee of Solomon Lightcap, Cardilla Lightcap, Nora Sloan, Norman Lightcap, Bess Sloan and Marne Way, heirs of Solomon Foster Lightcap, devisee, and Lizzie A. Lightcap MeQuilken, Edward R. Lightcap and Earl Lightcap, widow and heirs of Samuel Godfrey Lightcap, devisee, or the present owner or owners of lands devised, pay the said amount of six hundred ($600) dollars, with interest from this date, to the heirs of Sarah Jane Swan, above named, and the further sum of six hundred ($600) dollars, with interest from this date, to the heirs of Mary Ann Earhart, above named, within six months, and that upon failure to pay within said time, proceedings may be instituted, as devised to the above-named legatees. From James L. Jack, Indiana, Pa.


author: Marx, P. J.,

text:
    Danko’s Estate.

      Randolph Stauffer, for petitioner.
    Sept. 7, 1929.
   Marx, P. J.,

— The Berks County Trust Company, guardian of the estate of Anna Danko, minor daughter of John Danko, deceased, petitions for allowance to pay, out of moneys held as the estate of said minor, a reasonable sum on account of expenses of burial of said father. The petition avers that the father left no assets; that the assets of the minor aggregate $350, being half the proceeds of an insurance policy, left by the father, on his life, wherein this minor and her sister were named beneficiaries. Relatives of the decedent, knowing of the existence of an insurance policy and believing it payable to decedent’s personal representative, directed interment, probably elaborate and improvident under the existing circumstances. The total cost of interment was $576.78, $288.39 being apportionable to this estate.

There is neither statute nor appellate court decision rendering a minor’s estate liable for costs of burial of an indigent parent. In Bair v. Robinson, 108 Pa. 247, 250, the Supreme Court, finding a married woman liable for the burial expenses of her mother, a member of her family, on the theory of “necessaries,” said, by Justice Gordon: “Common decency as well as health and comfort require this.” Resting upon this case and its theory, courts have, in several instances, held the estates of minor children liable for the costs of burial of indigent deceased parents. See Van Ness’s Estate, 66 Pitts. L. J. 814. It is, however, highly important that this power be exercised with caution and that nothing but real “necessaries,” required by common decency, health and comfort, be paid out of the minor’s assets. It is, accordingly, ordered and decreed that the sum of $252.34 be paid the claimant, E. A. Kern, undertaker, out of the assets of the estate of this minor, said sum being one-half of the charge made for items found due under the terms hereof.

From Charles K. Derr, Reading, Pa.


author: MacNeille, J.,

text:
    Byrne v. Dennis et al.

      Thomas S. Lanard, for plaintiff; Reuben Levi, for Albert Dennis.

      Harry P. Felger, for Ruth Sagen and William, Meyer and Benjamin Eglin.

      John Dolman, for Mary Loney.

      Clinton A. Sowers, for Paul and Marie Fullebom.

      William W. Cohan, for Lithuanian Central Building and Loan Association.

      Jenkins & Bennett, for Southwark Title and Trust Company.
    May 5, 1930.
   MacNeille, J.,

Statement of pleadings.

This is a bill in equity filed by complainant, alleging, in brief, that she was defrauded through the manipulations of one Frank R. Loney, a member of the Philadelphia Bar. The bill was filed May 1, 1928. It sets forth that the complainant on Oct. 11, 1926, was the owner of premises No. 1033 Ritner Street, in the City of Philadelphia; that Frank R. Loney represented that he had a purchaser for the premises for the sum of $6500, and, with intent to cheat and defraud the complainant, induced her to sign a deed thereto to one Albert, Dennis; that Dennis was not a bona fide purchaser, and immediately gave a declaration of trust to Loney that he held the premises for Loney; that thereafter, through the manipulation of Loney, Dennis did, on Oct. 14, 1926, and without any knowledge of the complainant, convey the premises to Ruth Sagen, who, on Nov. 17, 1926, conveyed the premises to Mary M. Loney, and the said Mary M. Loney conveyed the premises to Paul Fulleborn and Marie Theresa, his wife, by indenture dated Feb. 15, 1927; that all this was done without the knowledge and consent of the complainant, and complainant received no consideration therefor.

The complainant prays that all these conveyances be declared fraudulent, void and of no effect, and that the Fulleborns be decreed to reconvey to the complainant and be enjoined from executing any transfer or conveyance or in any way encumbering the real estate pending the disposition of this bill.

The complainant subsequently filed an amendment to the bill, joining as additional defendants Frank R. Loney, William Eglin, Meyer Eglin, Benjamin Eglin, Lithuanian Central Building and Loan Association, St. Edmond’s Building and Loan Association, David S. Greenberg, Southwark Title and Trust Company, and made the additional averments:

1. On July 21, 1926, a judgment note purporting to have been made by plaintiff to David S. Greenberg for $500 was entered in Court of Common Pleas No. 5, of June Term, 1926, No. 11561, which judgment note was satisfied of record Nov. 18, 1926. Complainant had no knowledge of this note and received no consideration.

2. On June 26, 1926, unknown to the complainant and with no consideration to her and alleged to have been made by her, a mortgage to the Lithuanian Central Building and Loan Association for $3500 against the premises in question was recorded; on Feb. 15, 1927, when the settlement purporting to be between Mary M. Loney and Paul Fulleborn and wife was made at the Southwark Title and Trust Company, covering the premises herein mentioned, there was deducted from that settlement $3585.07, which sum was then paid to the Lithuanian Central Building and Loan Association in satisfaction of said mortgage.

3. The amended pleadings contain an averment that Frank R. Loney was constituted by the Fulleborns as their attorney in this settlement for the said premises and that the Fulleborns profited by the fraud of their agent.

Answers to the complainant’s original and amended bills were filed by all the defendants except Ruth Sagen and David S. Greenberg, who did not answer.

The defendant Albert Dennis answers that he took title at the request of Loney and gave Loney a declaration of trust; that he paid no consideration, and that subsequently, at Loney’s direction, he conveyed to Ruth Sagen. He denied any knowledge of any fraud perpetrated on the complainant.

The three Eglins answer denying any knowledge of the facts set forth in the bill. They aver that they owned a property upon which a certain Buckley Estate held a mortgage; that Mary M. Loney, the mother of Frank Loney, was one of the heirs in the Buckley Estate; that Loney claimed that he represented two of the heirs of the Buckley Estate who desired their share of the mortgage. The Eglins then paid to Loney, under the assumption that he was the attorney for the two heirs, the sum of $9600. They then found Frank Loney had cheated them; that he did not represent the two heirs; that he had no authority to receive the sum, and that he had stolen the same and converted it to his own use. The Eglins threatened to prosecute Loney, whereupon he represented to them that he owned the premises of the complainant in this suit and offered to convey this property to their nominee as security to them for $2000; that he gave them $2000 in cash, and the balance of the $9600, being $5600, was guaranteed as to repayment by his mother, Mary M. Loney. The Eglins named as their nominee to take title to the premises for the purpose of securing them one Ruth Sagen, whereupon, upon proper title insurance, the premises were so conveyed. Later, they agreed with Loney to have their nominee, Ruth Sagen, convey the premises to Loney’s mother, Mary M. Loney, accepting her note to them, the Eglins, for $2000. This note was subsequently paid and thereby released; further, at the time Mary M. Loney conveyed the premises to the Fulleborns she paid the Eglins a further sum of $1026, which sum was paid out of said settlement.

The answer of the Lithuanian Central Building and Loan Association sets forth that on June 26, 1926, a mortgage was created by Bridget Byrne to the association for $3500, covering the premises in question, and that they paid to her the said sum of $3500 in good faith without any knowledge of fraud. Further, that at the settlement on Feb. 15, 1927, this mortgage was paid to them and duly satisfied.

The answer of Mary M. Loney sets forth that in November, 1926, she gave a judgment note for $2000 to secure a debt of her son and at that time received a deed to the premises in question as security. When the settlement was made at which the premises in question were conveyed to the Fulleborns, this note was paid, whereupon Mary M. Loney executed a deed to the Fulleborns ; that she knew of no fraud in the matter.

The answer of the Fulleborns avers the purchase of the premises in question from Mary Loney, through her agent, Frank R. Loney, and denies that Frank R. Loney was the Fulleborns’ agent or that they ratified anything done by him; that they paid him nothing for his services, but that they paid a fair, reasonable market price for the said property.

The answer of the Southwark Title and Trust Company, which insured the title to the Fulleborns, denies that Frank R. Loney was agent for the Fulleborns, and avers he was agent for Mary M. Loney.

The answer of St. Edmond’s Building and Loan Association avers no knowledge of a fraud, but avers they made the loan of $5000 in good faith to the Fulleborns.

From the bill, answers and proofs the court makes the following

Findings of fact.

1. On or about June 26, 19'26, Bridget Byrne, widow, was the owner in fee simple of premises No. 1033 Ritner Street, Philadelphia.

2. On June 26, 1926, Bridget Byrne executed a bond and mortgage in the sum of $3500 to the Lithuanian Central Building and Loan Association secured upon the said premises.

3. On July 14, 1926, Bridget Byrne executed a judgment note to David S. Greenberg in the sum of $500, which was subsequently satisfied of record.

4. On Oct. 11, 1926, Bridget Byrne was induced by the fraudulent representations of Frank R. Loney to execute a deed for the said premises to Albert Dennis, for which she received no consideration.

5. On Oct. 14, 1926, Albert Dennis, at the instance and request of the said Loney, and without receiving any consideration therefor, executed a deed to Ruth Sagen, nominee of William, Meyer and Benjamin Eglin.

6. The said Eglins took the property as security for the sum of $2000,

owed to them by the said Loney. '

7. On Nov. 17, 1926, the said Eglins, at the request of the said Loney, directed Ruth Sagen, their nominee, to convey the said property to Mary M. Loney, and accepted in place thereof the judgment note of the said Mary M. Loney in the sum of $2000.

8. On Feb. 15, 1927, Mary M. Loney, at the instance and request of the said Frank R. Loney, conveyed the said property to Paul Fulleborn and Marie Theresa Fulleborn, his wife, for a full and valuable consideration, to wit, $6500.

9. The said consideration was applied in satisfaction of the mortgage to the Lithuanian Central Building and Loan Association and of the indebtedness of Mary M. Loney to the Eglins, the balance being converted by Frank R. Loney to his own use.

10. In the said settlement the said Frank R. Loney acted as agent for the grantor, and his knowledge of the fraud practiced upon Bridget Byrne cannot be imputed to the Fulleborns, grantees.

11. None of the defendants in this action (except Frank R. Loney) had knowledge of, or was party to, the fraud upon the plaintiff, which was the sole act of Frank R. Loney.

12. None of the defendants (except Frank R. Loney) profited in any way by reason of the fraud of Frank R. Loney against the complainant.

Discussion.

The complainant in this case is a widow and at present an inmate of the Home for the Aged of the Little Sisters of the Poor and apparently in destitute circumstances. By reason of her confidence in one Frank R. Loney, formerly an unworthy member of the Philadelphia Bar, she has through his machinations been defrauded of the property she once possessed and now seeks to have the court undo for her the result of her misplaced trust. The perpetrator of the fraud has been convicted of his crime and is paying the penalty therefor in prison. Unfortunately, however, despite the great sympathy which must be felt for the complainant, the course of events set in progress by this unworthy agent has proceeded to such a point that the rights of others equally as innocent as the complainant have intervened, and a finding in her favor would inevitably work a wrong towards them.

On March 28, 1901, William R. MacEwan conveyed unto Patrick Byrne and Bridget Byrne, his wife, as tenants by entireties, the premises known as No. 1033 Ritner Street, in the City of Philadelphia. Patrick Byrne died Feb. 15, 1917, leaving to survive him the plaintiff, his widow, in whom the title to this property vested in fee simple.

Complainant employed the said Frank R. Loney as her attorney and agent and appears to have been guided entirely by his counsel and advice and signed without question all papers which he brought her for signature.

On or about June 26, 1926, complainant, at the instance and request of the said Loney, executed a bond and mortgage to the Lithuanian Central Building and Loan Association for $3500, secured upon the said premises. After the usual precautions, title search, etc., settlement was made at the office of the Brotherhood of Locomotive Engineers Title and Trust Company. Complainant appears to have signed the settlement sheet and also an affidavit that she was a widow. The check for the proceeds of the settlement was drawn to her order and endorsed by her. Complainant in her testimony admitted signing the bond and mortgage, but stated that no one was present when she did so, except Loney, thus by inference denying the authenticity of the acknowledgment. She does not directly testify that she did not acknowledge the mortgage, and the notary was not called to testify regarding it. There is no testimony as to whether she attended the settlement or not, but every ordinary precaution appears to have been taken by the building association and the title company, and there is no suggestion that they were in any way parties to the fraud practiced upon the complainant. Under the Act of April 3, 1840, § 1, P. L. 233, the certificate of acknowledgment is prima facie evidence thereof, and of execution. The fraud, if any, being that of the agent of the mortgagor and not that of the mortgagee, and the mortgagee having parted with full consideration, the mortgage cannot be set aside when the signature is admitted and there is no evidence to disprove the regularity of the acknowledgment. See Pepper v. Cairns, 133 Pa. 114; Weir v. Washington Trust Co., 263 Pa. 72; Reehling v. Byers, 94 Pa. 316; Boyer v. Weimer, 204 Pa. 295; Jarvis v. Bell, 296 Pa. 568.

Complainant denies that she received any consideration for this mortgage or that she endorsed the cheek drawn to her order at the settlement. Whatever rights she may have by reason of such forged endorsement do not arise in this action nor against any of the defendants herein. The mortgage was a valid lien against the property, and its subsequent payment (as will hereafter appear) merely operated to discharge the lien and created no rights as against the Lithuanian Central Building and Loan Association. The request of complainant that a decree be entered against the Lithuanian Central Building and Loan Association, directing it to pay complainant the sum of $3585.07, the amount received by it in satisfaction of this mortgage, must be refused, and the bill should be dismissed as against this defendant.

It is averred in complainant’s amended statement that on July 21, 1926, subsequent to the creation of the aforesaid mortgage, a judgment note purporting to have been given by complainant to David S. Greenberg, dated July 14, 1926, in the sum of $500, was entered of record in the Court of Common Pleas No. 5, as of June Term, 1926, No. 11561, and that on Nov. 18, 1926, the said judgment was satisfied of record. Complainant denies any knowledge of this note, but since it has been satisfied, further consideration of it may be dismissed except to note that the judgment was of record when the deed next referred to was executed. The bill as to David S. Greenberg, defendant, should be dismissed accordingly.

On or about Oct. 11, 1926, the complainant was desirous of disposing of her property. Her said attorney, Loney, then represented to her that he had a purchaser who was willing to buy it for the sum of $6500, and induced her to sign a deed to Albert Dennis, a student of law in the office of Loney, which deed was duly acknowledged and recorded. Dennis took the property subject, of course, to the mortgage of $3500 and the judgment of $500, paid no consideration whatever, and executed a declaration of trust to Loney. This transaction was obviously a subterfuge on the part of Loney to get the property under his control without arousing the suspicions of complainant by making the deed in his own name. There is no evidence or allegation that Dennis knew of, or was in any way a party to, the fraud of Loney, and as- the title has since passed from him, and as no relief is asked against him, the bill as to this defendant should be dismissed.

Subsequently,' on or about Oct. 14, 1926, Loney became involved in difficulties by reason of a fraud practiced by him against the Eglins. He had secured from them the sum of $9600, ostensibly in partial payment of a mortgage against their property, and converted the money to his own use. When this was discovered, the Eglins threatened him with civil and criminal prosecution, and he thereupon paid them $2000 in cash, tendered title to the said premises No. 1033 Ritner Street, representing it to be his own property, as security for the payment of a further sum of $2000, and procured his mother, Mary M. Loney, to guarantee the payment of the balance, amounting to $5600. The Eglins had title to the property examined, and, finding no flaw therein, accepted a deed from Dennis to Ruth Sagen, their nominee. They were entirely innocent of any knowledge of the fraud upon the complainant.

Thereafter, on or about Nov. 17, 1926, Loney induced his mother, Mary M. Loney, to execute a judgment note to the Eglins for $2000, and the Eglins thereupon caused the said Ruth Sagen, their nominee, to convey title to the said premises to Mary M. Loney, who appears to have taken the same as security for the said note. There is some testimony that this note was subsequently paid; but at the time of the conveyance next referred to Mary M. Loney was indebted to the Eglins in the sum of $1026, and this sum was paid to them out of the proceeds of this next conveyance. Complainant suggests that a decree may be entered directing the Eglins to repay this sum of $1026 to her; but it is difficult to see how such an order may be made when the Eglins did not hold the title to the property at the- time of the said payment, and from all that appears in the testimony this sum probably represented a repayment of the consideration originally paid by them for the property. The bill, therefore, should be dismissed as to William Eglin, Meyer Eglin, Benjamin Eglin and Ruth Sagen.

Mary M. Loney, the mother of Frank R. Loney, took title from Ruth Sagen as aforesaid. The testimony is somewhat conflicting as to the circumstances under which she acquired title, but there is absolutely nothing to show that any knowledge of the fraud against the complainant can be charged to her. She believed that her son had some interest in the property, the title of which was in the Eglins’ nominee. She took title from the Eglins and gave her judgment note for $2000 as consideration therefor. She was, therefore, a holder for value, and plaintiff does not suggest that any decree be entered against her. The bill as to this defendant should be dismissed accordingly.

In February, 1927, Loney, acting as agent for his mother, sold the property to Paul Fulleborn and Marie Theresa Fulleborn, his wife, for a full and valuable consideration of $6500, the sum of $1500 being paid on account and the balance being paid at settlement held on Feb. 15, 1927, at the office of the Southwark Title and Trust Company, when a mortgage in the amount of $5000 was created upon the said premises by the Fulleborns to the St. Edmond’s Building and Loan Association. No knowledge of, the fraud upon the complainant is or can be imputed to either the Southwark Title and Trust Company or the St. Edmond’s Building and Loan Association, and the bill as to them should be dismissed.

There is nothing to show what disposition Loney made of the advance payment of $1500, but the proceeds of the settlement were applied in satisfaction of the mortgage held by the Lithuanian Central Building and Loan Association and in payment to the Eglins of $1026, as hereinbefore set forth, and a check for a small balance, amounting to $310.67, made payable to Mary M. Loney, was by her endorsed to Frank R. Loney. It is obvious, therefore, that the only one who profited from the ultimate sale was the said Frank R. Loney.

Complainant in the amended bill alleges that Loney in this transaction acted for the Fulleborns. They in their answer deny that he was their agent. The basis for the allegation is that in the copy of the settlement sheet of Southwark Title and Trust Company there is a charge of $50 against guarantees to Loney for services. There is no evidence as to what those services were, whether simply for drawing the papers or not. The answer of Southwark Title and Trust Company also denies that Loney acted for Fulleborns. The evidence falls short of establishing said relation, and even if it were established, the law is clear that his knowledge, not obtained in the course of the employment, could not be imputed to them.

An exception to the general rule that notice to the agent is notice to the principal arises in case of such conduct by the agent as raises a clear presumption that he would not communicate the fact in controversy, as where the agent acts for himself in his own interest and adversely to that of the principal: Gunster v. Power Co., 181 Pa. 327; Insurance Co. v. Central National Bank, 185 Pa. 586; Bair’s Assigned Estate, 20 Pa. Superior Ct. 85.

The evidence does not convince the court that Loney acted as the agent of the Fulleborns, and even if he did, the law is clear that his knowledge cannot be imputed to them, and it is equally clear that they did not and could not have any actual knowledge of the fraud upon the complainant. The court cannot, therefore, make any decree against the Fulleborns, as requested by plaintiif, directing,the reconveyance of the property to complainant or the payment to her of any sum of money, and accordingly dismisses the bill as to these defendants.

The issue in the case as to all of the parties can be summarized in the proposition of law where, one of two innocent parties must suffer loss by reason of the fraud or deceit of another, the loss should fall on him by whose act or omission the wrongdoer has been enabled to commit the fraud: Vanderslice v. Insurance Co., 13 Pa. Superior Ct. 455; Froio v. Armstrong, 277 Pa. 18; O’Connor v. Clark, 170 Pa. 318; Shattuck v. Cement Co., 205 Pa. 197.

Complainant in her amended bill includes Frank R. Loney as a defendant. No appearance was entered for Loney, however, and there is nothing in the testimony to show that he was served with a copy of the bill. The court, therefore, while convinced of his guilt, is unable at the present time to enter any decree against him.

Conclusions of law.

1. The loss of the complainant was occasioned solely by the wrongdoing of Frank R. Loney.

2. The said Frank R. Loney was enabled to commit thé fraud against complainant by reason of his employment by her as her agent.

3. There is no evidence that any of the defendants, except Frank R. Loney, knew of his fraud against complainant, or that any of them, except Frank R. Loney, was chargeable with knowledge of his fraud against complainant.

4. All of the defendants, except Frank R. Loney, being as innocent as complainant, the loss as between them must fall upon the complainant, whose act in employing Loney made it possible for him to commit the fraud.

5. The bill must be dismissed against all defendants, except Frank R. Loney.

6. All requests for findings of fact and conclusions of law not consistent with the above are refused.

Decree.

And now, to wit, May 5, 1930, the court orders and decrees that the bill of Bridget Byrne against Albert Dennis, Ruth Sagen, Mary M. Loney, Paul Fullebom, Marie Theresa Fulleborn, Frank R. Loney, William Eglin, Meyer Eglin, Benjamin Eglin, Lithuanian Central Building and Loan Association, St. Edmond’s Building and Loan Association, David S. Greenberg and the Southwark Title and Trust Company be dismissed as to all defendants except Frank R. Loney, on whom there has been no service of process.

NOTE. — Exceptions filed to the foregoing- decree were dismissed by the court on June 18, 1930.


author: Alessandroni, J.,

text:
    Duffey v. Loughney et al., Executors.

      G. F. Douglas, for plaintiff; V. A. Carroll, for defendants.
    May 28, 1930.
   Alessandroni, J.,

— The question raised by this rule to strike off is, whether in an action by a surviving partner to recover partnership property in the hands of the personal representatives of the deceased partner the latter may file a counter-claim or set-off for wages alleged to be due the deceased partner for services rendered to the partnership and for a share of the proceeds of notes alleged to be in the hands of the surviving partner for collection.

It appears to be clearly established that the surviving partner, the plaintiff in this case, may maintain an action at law against the personal representatives of the deceased partner to recover partnership property or money in the possession of the said representatives: 47 Corpus Juris, 1098. The duty of settling the partnership affairs devolving upon the surviving partner and title to partnership property being in him, he is entitled to it in order to settle and wind up the partnership affairs. The plaintiff’s action is, therefore, properly brought. It were otherwise if his action in assumpsit was against a living partner. The defendants’ counter-claim is in effect an action against a living partner to collect an individual claim and a share of the partnership assets. This may only be done in an equity proceeding for an accounting and distribution: 47 Corpus Juris, 1099', 1100.

In Ferguson v. Wright, 61 Pa. 258, it was said “that to support assumpsit there must be a settlement and balance found due to the partner who sues for it.” There is no allegation that that has been done in this case.

In the Appeal of Ainey, 2 Pennypacker, 192, the court stated: “The principle is universally recognized that one partner cannot, on a claim before partnership settlement, maintain an action at law for the debt against another for anything received on partnership account, or for anything relating to partnership transactions while the partnership affairs remain unadjusted, on the ground that it would be impossible to determine whether anything be due the plaintiff until an account of the partnership matters is taken: Ozeas v. Johnson, 4 Dallas, 434; Patton’s Admin’rs v. Ash, 7 S. & R. 116,” etc. . . . “Balances struck preparatory to a settlement are not sufficient. They must be final or the remedy is in equity: Burns v. Nottingham, 60 Ill. 531.”

The defendants’ remedy is by a suit for an accounting, which will thoroughly adjudicate all the rights of the respective parties. To permit an action such as the defendants seek to set up in their counter-claim would result in a multiplicity of suits.

We are, therefore, of the opinion that the counter-claim should be stricken off without prejudice to the rights of the defendants to proceed in' the proper manner for the establishment of their claims against the partnership.

And now, to wit, May 28, 1930, the rule to strike off is made absolute.


author: Kun, J.,

text:
    Bruder v. City of Philadelphia et al.

      Murphy & Levy, for plaintiff.

      Israel K. Levy and Barry S. Platowsky, Assistant City Solicitors, for City of Philadelphia, defendant.

      Louis Wagner, for American Stores Company, additional defendant.

      C. B. Rhoads and Lawrence M. C. Smith, for Samuel Finberg and Elizabeth A. Brick, additional defendants.
    June 23, 1930.
   Kun, J.,

— On May 22, 1925, the plaintiff was injured by falling into an alleged defect in the pavement in front of No. 5027 Market Street, which is the northwest corner of Market and Farson Streets, in the City of Philadelphia, on which account he filed suit against the City of Philadelphia to recover damages. The City, by sci. fa. proceedings, brought in the American Stores Company, lessee of the store occupying part of the first floor of the premises, and Samuel Finberg and Elizabeth A. Brick, owners of the property as tenants in common, as additional defendants. By stipulation filed of record, liability was admitted on the part of the City to the plaintiff in the sum of $2510, and the question of liability over to the City on the part of the additional defendants, or any of them, was submitted to the court for determination.

The proofs show that the lease from the predecessor in title of the premises to the American Stores Company, which was assigned to the additional defendants, Finberg and Brick, the present owners, was for “All that certain premises situate and known as the store only and portion of basement” of the premises in question. The proofs further show that the frontage of the entire property is on Market Street about 17 feet, and the depth along Farson Street about 77 feet; that the “store only” rented to the American Stores Company has a depth of 31 feet along Farson Street, beyond which there is a hallway of about 4 feet leading to apartments on the second and third floors and to an apartment in the rear of the first floor, which extends about 25 feet along Farson Street, in the rear of which there is a yard to the end of the property line.

The proofs also show that the apartment at the rear end of the first floor and those on the second and third floors were occupied by tenants or held for rental to tenants by the owners of the building, Finberg and Brick. The defect in the pavement is shown to have been somewhere near the entrance to the corner store of the American Stores Company.

It is well settled that the owner of premises in possession is liable for damages caused by any defect in a sidewalk of the premises, and it is equally well settled that if the owner is out of possession because of a lease or otherwise, such liability ceases and the tenant or occupier is liable for damages resulting from defective sidewalks. Where, however, “a landlord leased a building piecemeal — room by room and floor by floor — there the tenant was only lessee of and responsible for so much of the building as the lease gave him. He could make use of the appurtenances, as, for instance, the entry and stairway going up to the upper floors, and the pavements; but still, not being in exclusive possession of such ways and appurtenances, ... it would be the duty of the landlord to keep those portions of the building and premises in repair.”

This was the language used by Yerkes, J., of the Court of Common Pleas No. 3 of this county, in the first case in which the question seems to have been raised in this Commonwealth and was affirmed by the Supreme Court in the following language: “The tenant had no such possession of the premises as to exempt the landlord from liability for damages caused by the pavement being out of repair. The duty of repairing the pavement was on the landlord who was the owner of the premises:” Brown v. Weaver, 17 W. N. C. 230.

This principle of law has been repeatedly reaffirmed in this state, as the late cases of Koplo v. Ettenger, 84 Pa. Superior Ct. 358, and City of Butler v. Western Union Telegraph Co., 93 Pa. Superior Ct. 533, show, notwithstanding the lease in the latter case was for “the ground floor front room . . . in building located at No. 114 Jefferson Street, . . . with appurtenances;” whereas in the case now before the court, the subject-matter of the lease was specifically restricted to the “store only and portion of the basement.” If there had been any possible basis in the Western Union case upon which to hold the tenant of the store only liable when the rest of the property was leased to others, it would have been hung on the circumstance that the store was leased “with appurtenances,” but the Superior Court ignored that fact entirely, and, while the effect of the use of the words “with appurtenances” was not directly considered, yet the reason for the ineffectiveness of those words to put the liability on the tenant in such a case may be found in the statement of the court (page 538) : “No possessory interest in the sidewalk was or could be conferred on the tenant by the owner, because the sidewalk is part of the street, though set aside for pedestrians.”

The reason why a lessee of an entire building is liable in such a case as this is not because the pavements, as such, are- leased to him, but, as stated by Judge Linn in the Western Union case (page 537) : “The reason for holding a tenant and exempting an owner who is not in possession is that the occupant in control of land and improvements may reasonably be said, ‘from his going in and out of the premises,’ to have notice of an obstruction or defect in a sidewalk in front of the land, while non-residence of an owner is inconsistent with such probability,” citing Philadelphia v. Bergdoll, 252 Pa. 545, 551. As has been stated, however, this does not apply where the landlord has possession of part of the premises, whether in person or through other tenants.

Our attention has been called to a recent decision of Judge Stern in the case of Zibman v. Fidelity-Philadelphia Trust Co., etc. (C. P. No. 2, March Term, 1927, No. 12137). The facts in that case are clearly distinguishable from those involved in the case before us. From the terms of the lease in that case, Judge Stern concluded that the sidewalks were leased to the tenant of the first floor store, which imposed upon him the duty of keeping them in repair. That was the basis of the decision. The question whether sidewalks may be leased by a landlord to a tenant does not arise in the case before us, as we are quite clear that there is nothing in the lease under consideration to indicate such an intent or to warrant such an implication.

It is clear to the court that there is no liability over in the case before us on the part of the tenant of the store only, the American Stores Company, to the original defendant, the City of Philadelphia, under the common law, under which, on the other hand, the liability over to the original defendant, the City of Philadelphia, is on the additional defendants, Finberg and Brick, owners as tenants in common of the premises which had been rented by them to various tenants.

There is another contention in the case: that if the American Stores Company is not liable over to the original defendant under the common law, it is, under the terms of its lease for the store and basement, because it is provided in paragraph 28 thereof that the lessee “shall be responsible for the condition of the pavement and . . . shall be solely liable for any accidents alleged to be due to their defective condition.” This clause, however, is “applicable only when an entire building is leased to a single tenant or when a first floor is leased to lessee.” The argument is hung on the last portion of the clause “or when a first floor is leased to lessee.” The contention might be dismissed because it cannot be properly adjudicated in this proceeding. If there is liability on the tenant, the American Stores Company, under the lease, it is as between it and the owners or lessors. The liability would arise by reason of the contract between them, and the defendant, City of Philadelphia, not being a party to it, cannot claim a liability over to it by reason thereof. As has been shown, under the common law, the liability over to the City of Philadelphia, original defendant, is on the part of Finberg and Brick, the owners of the building, additional defendants.

If the owners, Finberg and Brick, should conceive that the American Stores Company is liable over to them under the terms of the lease, they will have to raise that question by suit for reimbursement. It may not be amiss, however, to indicate the view of the court that there is no liability for defective pavement on the part of the American Stores Company, the tenant of the store only, to the lessors, under the terms of the lease referred to. The lease reads that the lessee shall be liable for such defect “only . . . when a first floor is leased to lessee.” To make this apply to the instant ease, it would be necessary for the court to read into the clause the words “or a portion thereof,” so that it would read “when a first floor or a portion thereof is leased to lessee,” followed by the implication that the lessee would be liable for defects in that part of the pavement in front of the portion he may have leased. Undoubtedly, the lessor can impose liability on the lessee by express agreement with the lessee contrary to that which the law imposes, but when such an effort is made, it must be clear, unambiguous and free from doubt. In such a situation the language of the agreement must be strictly construed, and if there is any doubt or ambiguity in it, it must be resolved against any extension of the common law liability. Taking into consideration the language of the entire paragraph in question, it is clear to the court that it was intended thereby to impose liability on the lessee for defective pavements only in case, as clearly stated therein, the entire building were rented to a single tenant (in which case, indeed, the law imposes the liability on the tenant), and the legal liability was extended by the agreement to a case in which a single tenant should occupy the entire first floor of the premises. It is the opinion of the court that, under the provisions in the lease referred to, the lessee of but a portion of the first floor is not liable for any defects in the pavement.

The court concludes as follows—

1. In accordance with the stipulation filed of record the prothonotary is directed to enter a verdict and judgment thereon in favor of the plaintiff, Joseph A. Bruder, against the City of Philadelphia, defendant, in the sum of $2510.

2. The point for finding on behalf of the defendant, City of Philadelphia, as to Samuel Finberg and Elizabeth A. Brick, additional defendants, is affirmed. The prothonotary is directed to enter a verdict in favor of the City of Philadelphia against Samuel Finberg and Elizabeth A. Brick, additional defendants, in the sum of $2510. Exception noted.

3. The point for finding on behalf of the City of Philadelphia against the American Stores Company, defendant, is declined. Exception noted.

4. The request for a finding of the following conclusion of law: “Under all the evidence in this case judgment must be entered in favor of Elizabeth A. Brick and Samuel Finberg, additional defendants,” is refused. Exception noted.

5. The request for finding in favor of the additional defendant, American Stores Company, is granted and the court so finds. Exception noted.

The prothonotary will enter verdicts in accordance with the foregoing findings.


author: Gest, J.,

text:
    In re Saunders’s Adoption.

      William C. A. Henry, for petitioners.
    June 27, 1930.
   Gest, J.,

— This is the petition of Edward A. Coughlin and Alice B., his wife, for the adoption of Edward Saunders. Van Dusen, J., who presided at the hearing of the petition, dismissed it on the ground that on the facts of the case this court had no-jurisdiction, and exceptions have been filed by the petitioners to the decree.

The child was born on July 18, 1925, in St. Mary’s Hospital, Buffalo, New York, and is the illegitimate child of Mary Saunders. His father is not certainly known, but at all events has not acknowledged his paternity. A few days prior to Jan. 3,1927, the mother came to Philadelphia and arranged with St. Vincent’s Hospital to take the child, and on Jan. 3, 1927, a lay worker connected with the hospital brought the child to Philadelphia and placed it in this hospital by the written authority of its mother, stated literally as follows ; “For and in consideration of expense incurred by the Managers of St. Vincent’s Hospital for Women and Children, as in the case of my child, Edward, aged seventeen months, and in consideration of a suitable place being found for him in a good family into which he may be adopted and suitably provided for and educated, I hereby engage of my own free will to give up to the Managers of the said institution to be placed as they may judge best or for adoption into a good family, and in the case of the latter I now agree that I will not-seek to discover, molest or deprive them of the child, but that I will rely upon the Sisters and Managers to dispose of him as they may judge best for his good, and I now agree to give up to them fully and unreservedly. January 3, 1927. Signed Mary R. Saunders, Witness Agnes Moran.”

On June 10, 1927, St. Vincent’s Hospital placed the child in the custody of the petitioners, who at that time resided at No. 5336 North Carlisle Street, Philadelphia, but who removed on Sept.'l, 1929, to Overbrook Hills, in Montgomery County, of which county they were residents when they filed this petition on April 11, 1930.

The Adoption Act of April 4, 1925, P. L. 127, provides that the petition for adoption shall be presented to the Orphans’ Court of the county where the petitioners are resident, and the petitioners in this case are not residents of Philadelphia County. The Amending Act of April 26, 1929', P. L. 822, provides that the petition may be presented to the Orphans’ Court of the county in which the person to be adopted is a resident, and Van Dusen, J., being of the opinion that Edward Saunders, the person to be adopted, was not a resident of Philadelphia County, dismissed the petition for want of jurisdiction.

It is argued in behalf of the exceptant petitioners that St. Vincent’s Hospital, located in Philadelphia, stands in loco parentis to the child by virtue of the contract made with it by the child’s mother, and, therefore, the legal residence of the child is in Philadelphia.

The residence of an illegitimate child is that of its mother, and if it were necessary to distinguish in the present case between residence and domicile, it may be observed that the word resident seems to have been used advisedly in this act, as it is the act relating to the appointment of guardians of minors resident within the county. Domicile and residence are not convertible terms, for a domicile may be acquired by the shortest residence, while, again, the longest residence may be insufficient to secure it. It is clear, however, that both the domicile and the residence of the mother of this child, so far as the record shows, remain in Buffalo, New York. She never lived in Philadelphia, and has no intention of living here.

The hospital was incorporated, it seems, by the Act of Feb. 20, 1858, P. L. 58, as St. Vincent’s Home for “the reception and nurture of destitute infants and foundlings, and to found a lying-in hospital for poor and friendless females of all persuasions in religion,” and while its name was subsequently changed to St. Vincent’s Hospital for Women and Children, we are not advised that its power were enlarged, so far as the present case is concerned.

It is claimed by the learned counsel for the petitioners that St. Vincent’s Hospital, by virtue of its agreement with the mother of the child, stands in loco parentis to it, and, therefore, its legal residence is established in this city. It may readily be conceded that the hospital is in loco parentis for some purposes, but it does not follow that the legal residence of the child for the purpose of its adoption is that of the hospital. Residence, in the sense in which the word is used in the Adoption Act, means, in our opinion, the settled habitat or place of abode. The contract, as it is called, between the mother and St. Vincent’s Hospital distinctly contemplates, however, a change of abode. The mother simply surrendered the custody of the child to the hospital for a special and limited purpose, viz., “to be placed as they may judge best or to be adopted into a good family.” St. Vincent’s Hospital has selected as a good family that of the petitioners, and we may assume has exercised a sound discretion. It has the right and duty resulting from its acceptance of the child to agree to or dissent from a proceeding to adopt the child, and we would require its consent to any proposed adoption. This, however, is not the question before us. A baby is not property that can be transferred by assignment. The mother still retains her natural rights and duties, and if her maternal instinct should revive, she might claim the child or object to the particular persons to whom the hospital might surrender it for the purpose of adoption. In cases like the present, where the child has been in the custody of a charitable institution, it has been our practice to require not only the consent of the institution to the petition, but that of the mother also if she can be found.

We have thus indicated our views regarding the rights and duties of the hospital under its agreement with the mother and the circumstances of the case. The only question, however, before us is that of jurisdiction, and, in our opinion, that is not affected by the so-called contract.

It seems to us to be very unfortunate that the Act of 1929 was passed to enable the adoption to be decreed in the county where the person to be adopted is a resident. The welfare of the child is the important matter for consideration of the court, and we must be satisfied, in the language of the Adoption Act of 1925, that “the welfare of the person proposed to be adopted will be promoted by such adoption.” This means that we should ascertain the character and respectability of the adopting petitioners and their ability to support the child, and this can best be done, and should always be done, by the court of the county where the petitioners reside and where they are known. And in order that we may be sure that their residence is bona fide, this court has inserted a requirement in our blank forms of petition that the petitioners shall set forth their residence or residences for the past five years.

In the present case, the mother resides, or did reside, in Buffalo. St. Vincent’s Hospital has only temporary custody of the infant for a special purpose, and the petitioners reside in Montgomery County, close to Philadelphia, it is true, but they might as well be residents of Erie County, hundreds of miles away.

This petition should have been presented to the Orphans’ Court of Montgomery County, where the petitioners reside.

The decree dismissing the petition was clearly correct, and the exceptions filed thereto are dismissed.


author: Koch, P. J.,

text:
    Gilberton Borough’s Tax Collector.

      J. F. Mahoney, Edgar Downey, P. J. Flannery and John F. Whalen, for petitioners.

      M. A. Kilker and C. E. Berger, for exceptant, Mrs. Ruth Matthews.
    March 3, 1930.
   Koch, P. J.,

— We have before us three petitions for the appointment of a tax collector in the Borough of Gilberton. Two of these •petitions were filed Feb. 10, 1930, and the other one Feb. 17, 1930.

The chief burgess of the borough filed exceptions to the first two petitions on Feb. 10, 1930, asking us to dismiss the petitions upon the ground, as he alleges, that he was not afforded an opportunity, as chief burgess, to cast the deciding vote at the regular meeting of the borough council on Jan. 20, 1930, at which he was present, when an attempt was made to elect a borough tax collector, but failed because of a tie vote and such an abrupt adjournment of council that the chief burgess was denied the right to cast the deciding vote in accordance with section 1003 of the General Borough Act of May 4, 1927, P. L. 519, 549. But we may not dismiss the petitions for such reasons, the time within which the borough council could fill the office having passed by. See sections 901 and 902 of said act.

On Feb. 17, 1930, one Ruth Matthews filed an answer to the allegations in the various petitions, in which she sets forth that her husband, Edward V. Matthews, had been elected tax collector of said borough in November, 1925; “that he duly qualified for and entered into said office, but, by reason of his failure to furnish a bond for the collection of taxes for the year 1929, a vacancy occurred in said office” and she was “appointed by the council of the borough in August, 1929, to fill said vacancy for the unexpired term of the said Edward V. Matthews;” that, pursuant to said appointment, she qualified, entered into and discharged the duties pertaining to the office. And she claims that, because of said appointment, she is now entitled to occupy said office until a successor is duly elected and qualified. She prays that we dismiss all petitions.

But it is claimed by others that a vacancy now exists in said office because one Benjamin Lomas, who was elected tax collector of said borough by the people at the municipal election held on Nov. 5, 1929, died about Dec. 23, 1929. Had Lomas lived he would have been entitled to take the office on the first Monday, of January, 1930, and to hold it for the term of four years. So the facts present the questions whether the borough council had the right to fill the office this year, and whether, because of its failure to fill it within thirty days from Jan. 6, 1930, it now devolves upon the court to entertain said petitions and to appoint some one as tax collector for said borough.

The term of the office is for four years from Jan. 6, 1930. When Edward V. Matthews was elected tax collector in November, 1925, the Act of May 8, 1923, P. L. 171, was in force. That act provided: “That if any vacancy shall occur in the office of tax collector, . . . when a tax collector that has been elected shall fail to qualify ... or ... by death, resignation or otherwise— the borough council of the borough in which such vacancy exists shall fill such office by appointing, by resolution, a suitable person, resident of the district in which such vacancy exists. Such appointment shall be until the next municipal election, at which election a collector shall be elected for four years.” But that act was repealed by said General Borough Act of 1927: Com. v. Bitner, 294 Pa. 549, 553. Consequently, it could be only under the provisions of said Act of 1927 that Mrs. Matthews was appointed tax collector in August, 1929. Section 901 of the General Borough Act of 1927 says: “If any vacancy shall occur in the office of . . . tax collector ... in any other manner whatsoever, the borough council shall fill such vacancy by appointing, by resolution, a qualified resident of the borough to such office for the unexpired term of the office.” The term of office for Mrs. Matthews became thereby definitely fixed were it not for the provisions of the Act of March 22, 1927, P. L. 53, which say that she is to hold the office until her “successor is elected or appointed and duly qualifies.” She, therefore, still holds the office, and it was the clear duty of the borough council to appoint some one after Jan. 6, 1930, because the man who had been elected in 1929 died without qualifying for the office.

Section 902 of the General Borough Act of 1927 says: “If the council of any borough shall refuse, fail or neglect, or be unable for any reason whatsoever to fill any vacancy within thirty days after the vacancy happens, as provided by the preceding section, then the Court of Quarter Sessions shall, upon petition of the burgess or council, or five citizens, fill the vacancy in such office by the ..appointment of a qualified resident of the borough for the unexpired term of the office.” It, therefore, now devolves upon us to appoint some person for the unexpired term for which Lomas was elected.

As the term of Lomas would have begun on the first Monday of January, 1930, that term will expire on the first Monday of January, 1934.

“The office of tax collector is not one that comes under constitutional control. It is wholly a creation of the Legislature and it was never intended to put offices created by that body beyond control and regulation of the creating power:” Com. v. Bitner, 294 Pa. 549, 554. Therefore, the appointment of Ruth Matthews was controlled by the General Borough Act of 1927 and not by said Act of 1923. True enough, under the provisions of the General Borough Act of 1927, she was to hold the office for the unexpired term only, but the act that was passed earlier in the same year, to wit, March 22, 1927, P. L. 53, says that she shall continue to hold it until her successor is elected or appointed and qualifies. Her successor was elected, but could not qualify because he died, so she will now hold the office until her successor is “appointed and qualifies.” This is in accordance with the Act of March 22, 1927, P. L. 53, section 1 of which is as follows: “That any officer of any municipal corporation of this Commonwealth, who hereafter may be or heretofore has been elected or appointed, and having qualified, shall hold said office until his successor is elected or appointed and duly qualifies.” The second section of the act repeals all acts or parts of acts inconsistent with the act.

This latter act applies to two situations, to wit: First, where one is elected to office in a municipal corporation, he holds until'his successor is elected and qualifies; and, second, where one is appointed, he holds until his successor is elected or appointed and duly qualifies. Where one is appointed to succeed an elected and qualified officer, he is appointed “for the unexpired term of the office” (sections 901 and 902, General Borough Act of May 4, 1927, P. L. 519, 548), but holds until his successor is elected or appointed and qualifies: Act of March 22, 1927, P. L. 53. “Persons elected to borough offices shall serve until their successors are elected and qualified:” Section 804. This provision is exactly the same as the provision of the Act of March 22, 1927, P. L. 53, respecting elected officers.

As Mrs. Matthews was appointed to office for the unexpired term, her term would have expired at the end of 1929 but for the provisions of the earlier Act of 1927, just quoted, which now allow her to hold until her successor is appointed. Such a construction of the entire Act of 1927 seems to us the only one that should be given to it in view of the later act. W e conclude that it becomes our duty, under the circumstances, to appoint a successor, and that will be done.

The prayers of the chief burgess and of Ruth Matthews are dismissed.

From M. M, Burke, Shenandoah, Pa.


author: Knight, J.

text:
    In re Incorporation of Linfield Borough.

      Henry M. Brownback, for petitioners.

      Ralph F. Wismer and Franklin L. Wright, for remonstrants.
   Knight, J.

— The village of Linfield is pleasantly situated on the Schuylkill River in Limerick Township, this county.

The industries of the village consist of a pipe mill, employing from 150 to 200 hands, and a cold storage plant with ten employees.

Time was when a flourishing distillery was among the important industries of the village, but the distillery, like unto the dodo and the wild pigeon, has passed away, leaving its sad and desolate buildings mute reminders of the vicissitudes of time and public opinion.

Among its commercial activities the village has four stores, a garage, barber shop and a hotel. It also maintains a volunteer fire company. Seven hundred and two people live in the village, 343 of whom are taxables and ninety-two of whom are freeholders. All of these freeholders except five have joined in a petition to this court praying that the village may be incorporated as a borough.

The proposed borough covers 638 acres of land, has 41 miles of road and contains 166 dwelling houses.

No opposition to the proposed borough comes from within, but a remonstrance has been filed signed by 183 freeholders and taxables of Limerick Township who oppose the grant of a charter to the village.

The petitioners assign the following reasons for desiring to break the political bonds that have so long associated them with the old Township of Limerick:

1. The condition of the roads in the village.

2. The lack of curbing and paving and the necessity of establishing grades.

3. The need of water for fire protection.

4. The general good of the people.

The force of the first three reasons is shattered by the undisputed fact that the petitioners have all of these improvements within their grasp under the township law as it exists at the present time.

If these freeholders who are unanimous for incorporation are equally sincere in their demand for curbing, paving and water for fire protection, these things can be obtained by petition to the supervisors under the existing law. The evidence shows that they have never used the means at hand to obtain the improvements they desire.

If grades are desired, the supervisors have authority under section 1040 of the Township Code of July 14, 1917, P. L. 840, to establish location and width of sidewalks upon the request of any land owner, and under the Act of July 7, 1919, P. L. 732, the supervisors may establish grades irrespective of requests from property owners.

True, one of the petitioners testifies that he asked a supervisor to give him a grade line and the request was ignored. Even if this be true, the request was a very informal one, not made to the board of supervisors but to one of its members.

About one mile of road within the limits of the proposed borough is a state highway which is maintained by the State and will be so maintained whether the charter be granted or not: Act of May 16, 1929, P. L. 1775.

The condition of the township roads in the village is fair and equal to the condition of the roads in the remainder of the township. •

Those who oppose the grant of a charter rest their case upon the following reasons:

1. The incorporation of the borough will deprive the township of one-fifth of its road taxes, while it relieves it of the care of only about one-twentieth of the township roads.

2. The incorporation of the borough will retard the growth and improvement of the township and place an undue burden of taxation upon the inhabitants of the remainder of that municipality.

3. Incorporation is unnecessary, inadvisable and inexpedient.

There is merit in these objections to the grant of a charter to Linfield. The people of Linfield are interested in the maintenance of the township roads, especially those leading to their village, and in the event of incorporation these could only be kept up by substantially increasing the taxation upon the remainder of the township.

To take from the township the taxes derived from the village of Linfield would place an unfair burden upon the inhabitants residing in the remaining portions of the township without a corresponding advantage to the residents within the proposed borough.

The location of the streets of the village, the fact that the houses are scattered, the large amount of farm land included within the lines of the proposed municipality, and the total assessment of $317,000, all militate against the expediency and advisability of incorporation.

We have not touched upon the school situation, for, as we understand the law, if a charter were granted it would only have the effect of creating an independent school district composed of the borough and the township until such time as a new school district is approved by the State Council of Education: Act of April 24, 1929, P. L. 642.

Independent school districts are not favorites of the law: Incorporation of Lehman Borough, 4 Pa. C. C. Reps. 37; 41.

The strongest argument in favor of incorporation is the fact that the freeholders of the proposed borough are unanimously in favor of it.

“The question of necessity or expediency of incorporating a village and adjacent territory into a borough does not depend so much upon the will of a majority of the freeholders residing outside the limits of the proposed borough, or upon the unanimous consent of those residing within the proposed lines, as it does upon the fact that the advantages to the whole people, as a community, will overbalance the disadvantages:” Prospect Park Borough, 166 Pa. 502.

After viewing the proposed borough and carefully considering the evidence produced before us, we have come to the conclusion that any advantage to be gained by incorporation is overbalanced by the obvious disadvantages to the whole people of Limerick Township as a community.

We can appreciate that our decision will be a keen disappointment to the petitioners, but with the wide powers now given to townships of the second class, we are fully convinced that, in the long reach of the future, the interests of the people of Linfield will he best served if their village continues politically a portion of Limerick Township.

And now, Aug. 19, 1929, the application of freeholders of the village of Linfield for incorporation of the village into a borough is refused and the petition dismissed.

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