author: Metzger, Dep. Att’y-Gen.,

text:
    State Officers’ Retirement.
    Dec. 27, 1928.
   Metzger, Dep. Att’y-Gen.,

This department is in receipt of your letter of Dee. 19th, in which you ask to be advised whether elective State officers and appointive State officers, commissioned for a definite term, may, when their terms of office expire, be considered as having “discontinued from service, not voluntarily,” within the meaning of section 11, paragraph 3 (b), of the State Employees’ Retirement Act of June 27, 1923, P. L. 858, which provides:

“3. Should a member be discontinued from service, not voluntarily, after having completed ten years of total service, he shall be paid as he may elect as follows:
“(b) An annuity of equivalent actuarial value to his accumulated contributions, and, in addition, a State annuity, beginning immediately, having a value equal to the present value of a State annuity, beginning at the retirement age, of one one-hundred-sixtieth (1/160) or one one-hundredth (1/100) of his final salary multiplied by the number of years of prior service, plus one one-hundred-sixtieth (1/160) or one one-hundredth (1/100) of his final salary multiplied by the number of his years of service as a member.”

Let us consider first the case of elective officers, by which, in this opinion, we mean the Governor, the Auditor General, the State Treasurer and the Secretary of Internal Affairs. If any doubt ever existed as to the eligibility of these officers to membership in the State Employees’ Retirement Association, it was removed by the Act of April 22, 1927, P. L. 349, amending section 3 of the Retirement Act of June 27, 1923, P. L. 858.

Clearly, therefore, the four elective officers under discussion are “State employees” within the meaning of section 1, paragraph 6, of the Retirement Act. Upon first impression, the expression “discontinued from service, not voluntarily,” would seem scarcely to be applicable to the ease of an elective officer, especially one who cannot, under the Constitution, succeed himself. When elected, he knows that, so far as that office is concerned, his State service will be discontinued automatically at the expiration of his term. Still, the legislature also knew this when it used the words “should a member be discontinued from service, not voluntarily,” to apply generally to all State employees who had joined the Retirement Association. It might have made a special classification of elective officers, but it did not. Therefore, any eonstruction of section 11, paragraph 3 (b), which would ignore entirely the case of an elective officer would of necessity be inadequate.

We are then faced with a more or less simple question when we seek to determine whether an elective officer who cannot succeed himself discontinues his State service voluntarily or involuntaily when his term of office expires. It must be one or the other, and the question is which designation would seem more nearly to fit, “voluntary” or “not voluntary.” The officer may be, and frequently is, a man with many years of service as a State employee before he is called upon to run for an elective office. Such a man would have very valuable vested rights by virtue of his past services as a State employee, and, if we should hold that he is to be deprived of these rights when he accepts an elective office, it might have the effect of preventing old employees with experience well qualifying them to fill such offices from running.

Can we say that a man’s discontinuance from State service is voluntary when he has absolutely no volition to exercise in the matter except such as may have been involved when he consented or chose to run for an office with a definite term? In the Century Dictionary and Cyclopedia “voluntary” is defined as follows: “Proceeding from the will; done of or due to one’s own accord or free choice; unconstrained by external interference, force, or influence; not compelled, prompted, or suggested by another; spontaneous; of one’s or its own accord; free.”

In giving effect to the language which the legislature used with the manifest intention of embracing all persons in the Retirement Association, it seems reasonable to conclude that when the term of an elective officer, who may not succeed himself, expires, his discontinuance from service must be considered as not voluntary. It is interesting to note that the New York authorities have given to the expression discontinued from service “through no fault of his own,” etc., a similar interpretation.

The same reasoning applies and the same conclusion must follow in the case of an officer appointed for a definite term. He may not continue on in service of his own accord; the appointive power at the date of the expiration of such an officer’s term may alone determine whether he is to be continued in his position. The conclusion would be otherwise, of course, if such appointive officer should choose to tender his resignation at the end of his term or prior thereto. That action, however, formally taken would be evidence of a voluntary discontinuance.

There is also, we believe, a difference in the case of the elective officer who may succeed himself and the one who may not. If the former runs again for office and is defeated, his discontinuance from State service is, of course, involuntary. If he declines or fails to run again, his discontinuance from service would be voluntary.

You are, therefore, advised:

1. That elective State officers who may not succeed themselves discontinue their State service not voluntarily when their terms expire.

2. That when elective officers who may succeed themselves run again and. are defeated, their discontinuance from State service is not voluntary; that when they fail to run again, their discontinuance from State service is voluntary.

3. That when appointive State officers are not reappointed, their discontinuance from State service is not voluntary.

4. When appointive officers resign, their discontinuance from State service is voluntary.

From C. P. Addams, Harrisburg, Pa.


source: Caselaw Access Project

author: Albssandkoni, J.,

license: Public Domain

text:
    Scott et al. v. Holmes et al., County Commissioners.

      Thomas Raeburn White, for plaintiffs; William T. Connor, for defendants.
    June 28, 1929.
   Albssandkoni, J.,

At the general election in 1928 the voters of Pennsylvania approved an amendment to section 7 of article VIII of the Constitution of Pennsylvania, which in effect provides that the general assembly shall, by general law, permit the use of voting-machines or other mechanical devices for registering or recording and computing the vote at all elections or primaries in any city, county, borough or township of the Commonwealth, etc.

Pursuant to this constitutional mandate, the legislature passed the Act of April 18, 1929, No. 244, entitled “An act to permit the use of voting-machines for recording and computing the vote at all elections, including primaries, in any county, etc.”

Under its provisions, the county commissioners are required to submit the question “Shall voting-machines be used in the (county, city, borough or township) of . . . ?” to the voters at an election.

A question having arisen as to whether the question should not be submitted at the primary instead of at a general or municipal election, the parties have agreed to the following case stated:

It is agreed by and between T. R. White, attorney for plaintiffs, and William T. Connor, attorney for defendants, that a case be stated for the decision of the court as if a petition for a writ of altenative mandamus had been filed to the above term and number, a writ of alternative mandamus issued thereon, and a return filed thereto by the defendants, from which petition, return and writ the following facts appeared:

1. The plaintiffs and sundry other persons, all of whom are qualified electors of the County of Philadelphia, equaling in number more than 1 per cent, of the total number of electors who voted in said county at the general election held on Nov. 6, 1928, did, on June 27, 1929, file with the defendants, who are the County Commissioners of the County of Philadelphia, their petition requesting the defendants to submit to the qualified electors of the said county at the time and in the manner provided by the Act of the General Assembly approved April 18, 1929, No. 244, the question, “Shall voting-machines be used in the County of Philadelphia?”

2. The plaintiffs are advised and believe that the said act of the general assembly requires the defendants to submit the said question to the qualified electors of the County of Philadelphia at the primary election to be held on Sept. 17, 1929, that being the next general, municipal or primary election occurring at least sixty days after the filing of the said petition.

3. The defendants are advised and believe that the said act of the general assembly does not authorize or permit them to submit the said question at a primary election, and that, under the terms of the said act and pursuant to said petition, the said question should be submitted to the qualified electors of the County of Philadelphia at the municipal election to be held on Nov. 5, 1929. The defendants have, therefore, expressed their intention not to submit the said question at the primary election to be held on Sept. 17, 1929.

4. Section 2 of the Act of April 18, 1929, herein referred to, when introduced into the Senate of the Commonwealth of Pennsylvania, read as follows:

“Section 2. Authorization of Voting Machines. Any county, city, borough or township may, by a majority vote of its qualified electors cast at any general, municipal, primary or special election, authorize and direct the use of voting-machines for registering or recording and computing the vote at all elections held in such county,' city, borough or township, or in any part thereof.”

In the course of the passage of the said act through the House of Representatives, the said section 2 was amended so as to read as follows:

“Section 2. Authorization of Voting Machines. Any county, city, borough or township may, by a majority vote of its qualified electors voting thereon cast at any general or municipal election, authorize and direct the use of voting-machines for registering or recording and computing the vote at all elections held in such county, city, borough or township, or in any part thereof.”

As finally passed and approved by the Governor of the Commonwealth, section 2 of said act read as last above quoted.

5. If the court shall be of opinion that the provisions of the Act of April 18, 1929, No. 244, require the defendants to submit the said question to the qualified electors of the County of Philadelphia at the primary election on Sept. 17, 1929, judgment shall be entered in favor of the plaintiffs and against the defendants; otherwise, judgment shall be entered in favor of the defendants, reserving the right to the parties against whom judgment is entered to take an appeal therefrom to the Supreme Court of Pennsylvania.

The issue before us is whether the County Commissioners are required to submit the question of the adoption of the use of voting-machines to the electors at the next primary election.

We are called upon, therefore, to interpret and construe the several provisions of the act affecting the question.

The last paragraph of section 1 reads: “The words ‘election’ and ‘elections,’ whenever used in this act, shall be held to include and mean all general, municipal, primary and special elections.”

Section 2 provides: “Authorization of Voting Machines. Any county, city, borough or township may, by a majority vote of its qualified electors voting thereon cast at any general or municipal election, authorize and direct the use of voting-machines for registering or recording and computing the vote at all elections held in such county, city, borough or township, or in any part thereof.”

The language of section 3 is: “Placing the Question on the Ballot; Election thereon.

“(a) The county commissioners may, upon their own motion, submit to the qualified electors of the county, or of any city, borough or township thereof, at any election, the question ‘Shall voting-machines be used in the (county, city, borough or township) of . . . ?’

“(b) The county commissioners, upon receipt of a request from the council of any city or borough, or from the commissioners or supervisors of any township, said request being evidenced by the filing of a copy of a resolution certified by the secretary or clerk of the council, commissioners or supervisors, or upon the filing of a petition with them, signed by qualified electors of the county, city, borough or township, equal in number to at least 1 per cent, of the total number of electors who voted in said county, city, borough or township at the preceding general or municipal election, but in no case less than fifty, unless the total number of electors who voted therein at the preceding general or municipal election was less than one hundred, in which case one-half of the number so voting shall be sufficient, shall, at the next general, municipal or primary election, occurring at least sixty days thereafter, submit to the qualified electors of such county, city, borough or township the question ‘Shall voting-machines be used in the (county, city, borough or township) of . . . ?’

“(c) The county commissioners shall cause the said question to be printed upon the ballots to be used at the election, in the form and manner provided by the laws governing general and municipal elections.

“(d) The election on said question shall be held at the places, during the hours and under the regulations provided by law for holding general and municipal elections, and shall be conducted by the election officers provided by law to conduct such election. The election officers shall count the votes cast at the elections on said questions, and shall make return thereof to the prothonotary of the county, as required by law. Said returns shall be computed by the Court of Common Pleas, or other return board, and, when so computed, a certificate of the total number of electors voting ‘Yes’ and of the total number of electors voting ‘No’ on such question shall be filed in the office of the prothonotary, and a copy thereof, certified by the prothonotary, shall forthwith be furnished to the county commissioners.”

The language of these sections is far from an unequivocal designation of the particular election at which this question is to be submitted to the electors. Plaintiffs argue that paragraph (b) of section 3 is sufficiently clear to require the County Commissioners to submit the question “at the next primary election,” and that the references to general and municipal elections in section 2, paragraphs (o) and (d) of section 3, are permissive and formal and not directory or mandatory.

The defendants contend there is a conflict between clauses (a) and (b) of section 3, on the one hand, and section 2 and clauses (c) and (d) of section 3, on the other hand.

We find the provisions of these sections inconsistent and contradictory,'and in determining the intent of the legislature we are governed by the general principle making it the duty of the judiciary to apply the ordinary rules of construction and, when possible, to reconcile the various legislative provisions so that they may stand together as one harmonious whole. In cases where there is an apparent conflict between parts of the statute, the general purpose of the legislature must be considered, and if the language will permit, such construction must be applied as will give effect to every part of the law.

It is to be observed that section 2 specifically designates any general or municipal election.

Clause (c) of section 3 provides that the county commissioners shall cause the said question to be printed upon the ballots to be used at the election in the form and manner provided by the laws governing general and municipal elections. Clause (d) directs that the election on said question shall be held at the places, during the hours, etc., provided by law for holding general and municipal elections, and shall be conducted by the election officers provided by law to conduct such election.

Of considerable significance is the sentence immediately following, namely: “The election officers shall count the votes cast at the elections on said question, and shall make return thereof to the prothonotary of the county, as required by law. Said return shall be computed by the Court of Common Pleas or other return board,” etc.

It is pointed out that the returns of the primary elections are made directly to the county commissioners, whereas the returns of the general election are made to the prothonotary of the county and the vote computed by the Court of Common Pleas. If the construction advanced by the plaintiffs were to prevail, we take it to mean that the legislature intended that this question should be submitted at the primary and the vote to be received at the places, during the hours and under the regulations provided for as in the manner of general and municipal elections. It means, also, that the returns having to do with the question of the voting-machines should be made to the prothonotary and the other returns to the county commissioners.

Was it the intention of the legislature that the will of the people respecting the voting-machine should be ascertained at the primary under the rules and regulations governing the general election? We are not inclined to think so. We believe, rather, that it intended the question to be submitted at that election that offered the greatest opportunity for expression of the popular will. We are re-enforced in that opinion by the express language of section 2, which' prescribes the manner in which the electors may authorize and direct the use of the machine. This section admits of but one construction: “Any county, city, etc., may, by majority vote of its qualified electors voting thereon cast at any general or municipal election, authorize and direct the use of voting-machines.”

The use of the word “may” is in reference to the electors’ choice of authorizing the use of the voting-machines and not in a permissive sense with regard to any election.'

That the legislature intended a general or municipal election is evidenced further by reading clause (g), section 4, which provides for a recall oí the voting-machine: “Any county, city, borough or township may, by a majority vote of its qualified electors cast at any general election held not earlier than one hundred and three weeks after they have voted to adopt such machines, direct the discontinuance of the use of voting-machines at elections held in such county, city, borough or township.”

This section, it is true, also provides that the discontinuance of the use of the voting-machine shall be submitted to the voters in the same manner, subject to the same requirements as to petition and signatures thereon, as is required for the submission of the question on the authorization of the use of such voting-machines. The obvious reference here is to the provision in section 2, entitled “Authorization of Voting Machines.”

Is it probable that the legislature intended the adoption of the voting-machine at the primary and the recall or discontinuance of it at the general election?

Having designated the general election for its discontinuance, the provisions of the 2nd paragraph of clause (g), section 4, do not, in our opinion, set up another than the general election, but prescribes that the method to be pursued in the recall shall be similar in all other respects to the procedure authorizing the use of the machine.

We are, therefore, of the opinion that a reading of all the provisions touching the question at issue [shows that they] are not so contradictory or irreconcilable as to leave the intent of the legislature in doubt. In this question of State-wide importance, in ascertaining the intent of the legislature, we cannot overlook the limitations of primary elections. No ballots are used other than party ballots. No one is permitted to vote not enrolled under the party enrollment or who desires not to disclose his party affiliation. Special questions have been submitted to voters at the primary, but in such instances the submission has been in the nature of a special election and upon a separate ballot. Under the practice in vogue, this question could not be printed upon the primary ballot, but would have to be presented as in the case of a special election. Nowhere in the act do we find authority for the employment of this method. The reason and spirit underlying the legislative enactment, as well as its effects and consequences, will be looked into in determining the legislative intent. If there is room for construction, the court will prefer that construction which is most consonant with the purpose for which the act was passed.

And now, to wit, June 28, 1929, judgment in the case stated is entered in favor of the defendants in accordance with the foregoing opinion.


author: Taulane, J.,

text:
    Appeal of Anthony M. Forsthoffer Post No. 389.

      C. A. Sowers, for appellant; M. B. Longstreth and T. F. Jenkins, contra.
    April 15, 1929.
   Taulane, J.,

This is a ease stated. The facts are as follows :

Premises No. 1014 North Fifth Street were owned by the Redemptorist Fathers of the State of Pennsylvania and used by them until Dec. 15, 1927, as a home for the lay brothers who taught in their school which was conducted in other premises, and since that date said premises have not been used in any way by the Redemptorist Fathers.

On March 15, 1928, the Redemptorist Fathers sold and conveyed said premises to the Anthony M. Forsthoffer Post No. 389, Veterans of Foreign Wars, composed of honorably discharged soldiers, sailors and marines of the United States, and since that date the Post has used and occupied said premises. The real and personal property of the Post are exempted from all taxation. (Act of March 17, 1925, P. L. 39.) Said premises were exempted by the Board of Revision of Taxes from taxes while owned by the Redemptorist Fathers; the records of the board for 1928 show said premises to have been valued at $6000, but exempted.

On March 22, 1928, the Board of Revision of Taxes taxed said premises for the balance of the year 1928. The Post, on March 23,1928, applied for exemption, which was granted as to taxes from and after Jan. 1, 1929, but refused as to the taxes assessed for 1928, from which decision the Post has appealed.

It is doubtful whether the Redemptorist Fathers were entitled at any time to exemption (Act of March 17, 1925, P. L. 39), but certainly any right of exemption ended Dee. 15, 1927, when they ceased to occupy the premises; and it is equally clear that the premises could have been taxed on Jan. 1, 1928, the beginning of the tax year, for the 1928 taxes while owned by the Redemptorist Fathers. (Moore v. Taylor, 147 Pa. 481.)

Instead of taxing said premises for 1928, as should have been done, the Board of Revision of Taxes exempted them. Where real estate is entitled to exemption at the beginning of the tax year, but during the tax year ceases to be used for purposes which entitle it to exemption, it may be taxed from that time to the end of the tax year; thus, where a church conveys its property during the tax year for residential use. (Moore v. Taylor, 147 Pa. 481, and Act of April 26, 1893, P. L. 25.) And if real estate is taxable at the beginning of the tax year, its acquisition and use during the tax year by a person or association entitled to exemption does not exempt it for the balance of the tax year; thus, where a church acquires and uses real estate during the tax year subsequent to the levy of the tax for that year. (Philadelphia v. Pennsylvania Co., 214 Pa. 138, and Tobin v. Morgan, 70 Pa. 229.)

The facts before us are different from those involved in the cases we have cited. If the premises in question had been taxed, as they could have been, at the beginning of the tax year 1928, there could be no question but what they would have remained liable during the whole of 1928, notwithstanding their acquisition and use by the Post. No attempt has been made to tax said premises as of January, 1928, when they were owned by the Redemptorist Fathers, but instead the Board of Revision of Taxes taxed them for the first time on March 22, 1928, for the portion of 1928 during which they were owned and used by the Post, and when they were clearly exempt.

Whether the Board of Revision of Taxes could have taxed the premises on March 22,1928, as of Jan. 1,1928, and thereby subjected them to all the taxes for 1928, we are not obliged to decide. Their decision at the beginning of the tax year exempting said premises for 1928 stands unmodified and unreversed. We must accept their decision as it stands. When the Board of Revision of Taxes attempted for the first time to tax said premises on March 22, 1928, from that date to the end of the year, they were clearly exempt from Jan. 1 to March 22, 1928, and there has been no action by the board revoking such exemption.

The ease before us is not one where an association, entitled to exemption, acquires real estate during the current tax year which is liable to taxes for the current year previously assessed, but it is one where an association, entitled to exemption, acquires real estate during the current tax year from one who has been exempted and against whom no tax has been assessed for the current year.

The assessors are required to return all real estate in the county, whether taxable or exempt, and to value the.same. (Act of Feb. 2, 1854, § 17, P. L. 32.) This explains why the premises in question, though exempt, have a valuation on the records of the Board of Revision of Taxes. The assessors do not levy the tax; this is done by the Board of Revision of Taxes after Councils fix the tax rate (City Charter, 1919, art. xvil, § 3, P. L.- 606, and Ordinance 1927, page 663), and the tax is levied only on real estate not exempt. If any real estate is exempted by the board, no tax is levied on it. And for this reason no tax was ever levied on the premises in question for 1928 until the board assessed them on March 22, 1928.

Taxes cannot be collected on any real estate until the Board of Revision of Taxes first assesses it and certifies the assessment to the Receiver of Taxes. The premises in question from Jan. 1, 1928, to March 22, 1928, are exempt, and until the exemption is canceled, no taxes can be collected on them for that period. If that be so, and it be true that the Post is entitled to exemption, we think it quite clear that the Board of Revision of Taxes had no authority to tax said premises for the portion of the year 1928 during which they were owned and used by the Post. To hold the Post liable for any part of the 1928 taxes, it must appear that the taxes for 1928 were assessed before the Post acquired title. Instead of being so taxed, the record shows that the said premises are still exempted from Jan. 1, 1928, to March 22, 1928. We think the appeal must be sustained.

And now, to wit, April 15, 1929, the appeal of the Anthony M. Forsthoffer Post No. 389, Veterans of Foreign Wars, from the decision of the Board of Revision of Taxes as to the taxes for 1928 on premises No. 1014 North Fifth Street is sustained.


author: Thompson, J., Auditing Judge.

text:
    Ellis’s Estate.

      Owen J. Roberts and I. Hazleton Mirkil, for Commonwealth Title Insurance and Trust Co., Accountant,

      John S. Bradway, amicus curias.

      Charles E. Fox and Jerome J. Rothschild, for amicus curias, contra.

      George Wharton Pepper, for intervenors, contra.
    On April 1, 1927,
   Thompson, J., Auditing Judge.

this court made the following decree:

“As a majority of the court are of the opinion that the Act of April 26, 1855, P. L. 328, and the amendments and supplements thereto, apply to the instant trust, in view of this fact, the adjudication is recommitted to the Auditing Judge (he assenting) in order that the trustee may have further opportunity of being heard as to what disposition should be made of the corpus and accumulated income.” [Ellis’s Estate, 8 D. & C. 775, 790.]

1. As the Auditing Judge, Henderson, J., was indisposed, the matter was transferred to me with his consent.

2. Hearings were had before me on March 27, 1929, and Feb. 25, 1929. The transcript of the stenographer’s notes of testimony of said hearings are annexed hereto and made part hereof.

3. At the first hearing, a question arose as to the eligibility of those on the list awaiting admission to Ellis College. The list contained 103. After some testimony was taken with respect thereto, I referred said list to John S. Bradway, Esq., who had heretofore been appointed amicus curia} of this court in this matter for investigation and report, and instructed him to go to the various homes of the persons on the list, in company with Miss Wetherill, the social worker employed by the trustee, with the result that he made a report which is annexed hereto; the result of which is that, while some of the persons on the list might have been ineligible, yet I find as a fact at least sixty eligibles, which is the number the trustee desires to accommodate.

4. John T. Windrim, the architect employed by the trustee, on pages 20 to 22 of the testimony, gives the estimated cost of the additions to the existing plant which the trustee desires to make as follows:

$370,000 to build and furnish four additional cottages; $45,625 president’s house; $100,000 barn, garage and infirmary; $621,256 administration building; total, $1,136,881; and $100,000 for each of two wings not to be done at present.

5. From the testimony of Arthur B. Huey, Esq., and the prior testimony taken in this case, it appears that Ellis College has at present buildings and equipment sufficient for sixty girls, who are now in said college.

6. The present plan of the trustee is to spend the amounts above set forth to add to existing buildings and equipment so as to take care of sixty additional girls, making, when they are added, a total of 120 girls to be educated in said college.

7. It appears from the account that a large portion of this estate is invested in what are known as the underlying securities of Philadelphia’s trolley transportation system, which has undergone somewhat of a shrinkage in value; and, in making an order in respect to estimated future income in this estate, care should be taken to allow for a possible shrinkage in income due to the above fact.

8. The bond expert of the Provident Trust Company, succeeding trustee in this estate, has submitted a statement showing the shrinkage in value of the underlying securities above mentioned, calculated on the basis of the difference between the book or inventory value and the securities capitalized on a 7 per cent, basis, which is the basis upon which at the moment there is some discussion as to whether the City will take them over or not, which matter is at present undetermined; and I will annex the expert’s statement for information only.

9. My attention has been called to Bill No. 359 of the file of the House of Representatives, Session of 1929, purporting to increase the amounts charitable trusts can receive per year to $350,000. I am informed that this bill was signed by the Governor on March 13, 1929, but I am not able at the moment to secure a copy of this act as signed by the Governor.

10. My attention has also been called to Bill No. 346 of the file of the House of Representatives, Session of 1929; and I have no information as to whether this bill is in the hands of the Governor or not. So, in respect to both of said bills, I make no comment or order based thereon, but cite them for matter of information only.

11. I find as a fact from the testimony that the present trust yields about $170,000 per year, calculated as of March 27, 1928.

12. There has been submitted to me the second supplemental account to the second account of the Commonwealth Title and Trust Company, surviving trustee in this estate, verified March 26, 1928, which shows a balance of principal of personal estate of $4,204,203.25, and income of $2,328,378.18.

13. Prom the above, it will appear that the trustee has complied with the order of court above set forth, and shown what their plan is as to how they intend to spend the accumulated income on hand at present.

14. The court has found that the Act of April 26, 1855, P. L. 328, and the subsequent acts, apply in the present case: Ellis’s Estate, 8 D. & C. 775. These acts provide that if the amount of income received is in excess of “the annual value limited by law,” “it shall be the duty of any court having equity jurisdiction in the proper county, ... by its decree to carry into effect the intent of the donor or testator, so far as the same can be ascertained and carried into effect consistently with law and equity: . . .” Act of May 9, 1889, P. L. 173;* Kortright’s Estate (No. 2), 237 Pa. 143, 147.

15. To my mind, the only question is, are the trusts under the Ellis will legal and capable of being carried out, irrespective of the expense of so doing?

16. The Commonwealth Title Insurance and Trust Company, surviving trustee under the will of the testator, has merged with the Provident Trust Company of Philadelphia.

17. In my judgment, the plan of the trustee as to spending the accumulated income to the extent above set forth for enlarging the present facilities of Ellis College is a proper one and in accordance with the terms and conditions of the will of the testator, and I direct that the trustee carry out the plain terms of the will.

In'Johnson’s Estate, 30 Dist. R. 387, where the late John G. Johnson devised his residence on Broad Street, in the City of Philadelphia, and directed that his “art property” be exhibited therein and maintained as a “public museum,” liberally providing for the expense thereof, and further providing that his “art objects” should not be removed for permanent exhibition to any other place, an application was made to the court to sell the Broad Street property and remove the “art objects” to another place. We refused the application, saying (page 389): “Where a testator so clearly provides that his property shall be used in a particular way, his will should be carried out and his charitable purpose maintained in the way directed by him: Smith’s Estate, 181 Pa. 109; Derbyshire’s Estate, 239 Pa. 389. If testators are given to understand in future that their purposes, the same not being in violation of law or public policy, are to be set aside because the administrators of the charity think that something else is better, charitable and public bequests of this character will certainly diminish in number and importance.” No appeal was taken from our refusal.

And in Stoffel’s Estate, 295 Pa. 248, the court said: “One possessed of testamentary capacity, who makes a will in Pennsylvania, may die with the justifiable conviction that the courts will see to it that his dispositions, legally made, are not departed from by those charged with the duty of performance, or improperly defeated by agreement between those upon whom he bestowed his bounty. The law will not permit that to be accomplished by indirection which cannot be done directly; hence, a will contest, which judicial investigation shows to be entirely without supporting evidence of the kind required by our law, cannot properly be accepted as a legal basis for a compromise agreement disposing of an estate in a manner materially different from that intended by the decedent, and which would in effect defeat his chief testamentary direction.”

18. The principal and accumulated income as shown in the second supplemental account to the second account of the Commonwealth Title Insurance and Trust Company, surviving trustee, is directed to be retained by the Provident Trust Company of Philadelphia, succeeding trustee to the Commonwealth Title Insurance and Trust Company, and used by the said succeeding trustee in carrying out the uses, purposes and trusts set forth in the will of the testator in the manner outlined by the plan of the succeeding trustee as above set forth.

As will appear by reference to the letter of William A. Schnader, Deputy Attorney-General of the Commonwealth of Pennsylvania, annexed hereto, the Commonwealth of Pennsylvania is satisfied with any order which the court may make in the premises.


author: Houck, J.,

text:
    Kulla v. Lehigh Valley Coal Company.

      Roger Dever, for plaintiff; D. W. Kaercher, for defendant.
    July 23, 1928.
   Houck, J.,

In this compensation case the referee awarded compensation to the dependent widow and children of Andrew Kulla, an employee of the defendant company. The defendant appealed to the compensation board and that tribunal remitted the record to the referee for clarification of the testimony of the medical expert. A further hearing was held by the referee, and the compensation board, without stating any additional findings of fact, affirmed the findings of fact and conclusions of law of the referee and dismissed the appeal. Thereupon the defendant appealed to this court, and assigned in support of the appeal four exceptions, which raise the single question whether there is sufficient competent evidence to sustain the award.

The decedent was in the employ of the defendant company as a miner. The referee made the following findings of fact:

“5. We find that on March 22, 1926, the decedent and his buddy were working in a part of the mine where the air was warm, which caused them to perspire. Shortly after this, they went down into the gangway, sat down and ate a piece, where the cold air blew. The decedent took a chill and had to go home from work; he was disabled for a period of a week and then returned to work for three days. He again became disabled and died on April 10, 1926, from a low type of pneumonia.
“6. The decedent’s physical condition was below par prior to March 22,1926, by reason of alcoholism and other causes, and that on this date, when he went from the warm air into the cold air, he received a chill, and this chill so reduced his vitality as to make him a fit subject for the attack of pneumonia which followed some days later.
“7. We find that the decedent’s death was hastened by the chill that seized him in the mine on March 22, 1926, and it so reduced his vitality that he contracted the pneumonia some days later.”

It was not found specifically that the decedent sustained an accidental injury while in the course of his' employment. As will be noted, the referee found that the decedent “took a chill.” According to the expert witness called by the claimant, a chill is merely a symptom and is not a disease. It was not shown that the decedent was exposed to any unusual degree of heat or cold, nor that there was any fortuitous circumstance by which the decedent was subjected to exposure, differing either in degree or in kind from that shared in common by those working with him. Since the record must be remitted, for reasons hereinafter stated, this matter may be considered by the compensation authorities in their further determination of this case.

In order to sustain her claim, the claimant relies upon the testimony of Doctor Hunsinger, who is the only physician called as a witness. The compensation board found certain discrepancies in Doctor Hunsinger’s testimony given at the first hearing, but was satisfied that he cleared up these discrepancies when recalled at the second hearing. We are not satisfied that the testimony of Doctor Hunsinger sustains the award. At the second hearing, the doctor testified as follows: “Q. Assuming this decedent did have a chill, as testified by the witness, in changing from a warm air to a cold air, in your opinion, that exposure and chill was a predisposing cause of this man’s pneumonia? A. It certainly would have been and naturally would lower his resistance.” On cross-examination: “Q. You are not prepared to say that any chill this man had on the 22nd of March actually caused this man’s death? A. I cannot say that. The only thing I can say is, it might have lowered his vitality and been a predisposing cause. That is the only thing I can say. . . . Q. Intemperate habits would be just as great a contributory cause of death as the chill? A. I should say every bit as great a contributory cause. . . . Q. Might have been a number of predisposing causes in this case outside of the chill? A. There are, certainly. We do know his chill and his excessive use of alcohol. . . . Q. Might have gotten a chill on the street or somewhere else? A. In this case I could not say whether he did or did not. Q. As far as you know, as far as you are able to go in this case, as I gather, is that the chill was just one of several causes that might have caused the man’s death? A. Yes, sir. Q. That is the final analysis of it? A. Yes, sir.”

It is quite apparent from the testimony to which reference has been made, and the record contains other evidence of the same character, that no finding can be based upon it to the effect that the decedent’s death resulted from an accidental injury sustained while in the course of employment. The physician testified that the decedent’s known intemperate habits were as much a contributory cause of the pneumonia as the chill. “Where an injury may be the result of one of two or more causes, for only one of which defendant is liable, the burden is on the plaintiff to individuate that one as the proximate cause of his damage (Sullivan v. Baltimore & Ohio R. R. Co., 272 Pa. 429), otherwise there can be no recovery: Zimmerman v. Weinroth, 272 Pa. 537, 539; Miller v. Director General of Railroads, 270 Pa. 330; Bruggeman v. York, 254 Pa. 430, 435. Furthermore, the burden of proof is not met by the testimony of a witness, when .so conflicting as to render any inference drawn therefrom a mere guess: Goater v. Klotz, 279 Pa. 392, 396; Zenzil et al. v. Del., Lacka. & West. R. R. Co., 257 Pa. 473; Mulligan v. Lehigh Traction Co., 241 Pa. 139; Cawley v. Baltimore & Ohio R. R. Co., 44 Pa. Superior Ct. 340;” Gausman v. R. T. Pearson Co., 284 Pa. 348, 352. In the case at bar, the burden was on the claimant to show, first, that her hsuband sustained an accidental injury in the nature of exposure; and, secondly, that this injury caused his pneumonia. A finding to this effect cannot be based on testimony that the pneumonia may have been caused by intemperate habits, or that a chill suffered in the course of employment might have lowered the decedent’s vitality. “It cannot be affirmed that whatever lowers a man’s vitality is responsible for any disease which may come upon him:” Anderson v. Baxter, 285 Pa. 443, 448. In this case, the expert does not say that the decedent’s vitality was lowered. He merely says that it might have been lowered by the chill, which, in effect, is that the chill might have caused the pneumonia, because it might have lowered the decedent’s vitality. Evidence of this character is not competent to sustain an award. The expert must testify that the result in question came from the assigned cause: McCrosson v. Philadelphia Rapid Transit Co., 283 Pa. 492; Jones v. Phila. & Reading Coal and Iron Co., 285 Pa. 317; Vorbnoff v. Mesta Machine Co., 286 Pa. 199. See, also, Morgan v. Phila. & Reading Coal and Iron Co., 273 Pa. 255. We are of the opinion that the exceptions must be sustained and the record remitted to the compensation authorities for further hearing and determination: Mauchline v. State Insurance Fund, 279 Pa. 524.

And now, July 23, 1928, the defendant’s exceptions are sustained, the decision of the Workmen’s Compensation Board is reversed, and the record is remitted to the Workmen’s Compensation Board for further hearing and determination in accordance with the views herein expressed.

From M. M. Burke, Shenandoah, Pa.


author: Stotz, J.,

text:
    Silverstein v. Cohen.

      Israel Krohn, for plaintiff; Herbert F. Laub, for defendant.
    Nov. 5, 1928.
   Stotz, J.,

There are three liens against the defendant’s real estate; first, a mortgage held by one George Eben; second, a judgment in favor of Eva Silverstein; and, third, a mortgage given to Ella 0. Hartzell.

Ella O. Hartzell has entered her bond accompanying the mortgage of record and has issued execution. She now comes into court upon a rule to show cause why the second lien, the judgment held by Eva Silverstein, should not be stricken from the record. If this is done, the value of her lien will be enhanced, but if otherwise, it remains doubtful.

The ground upon which we are asked to strike off this judgment, as stated in the petition for the rule, is that the Silverstein judgment was entered of record irregularly and illegally, in that there was no compliance with the Act of March 31, 1915, P. L. 39, which provides as follows: “That the prothonotary of each county is hereby directed not to enter any judgment unless the judgment creditor, or his duly authorized attorney or agent, produces to the prothonotary a certificate signed by the judgment creditor, or his duly authorized attorney or agent, setting forth the precise residence address of the said creditor. The certificate shall be filed at the same number and term as the judgment.”

The answer admits that this provision of the act was not observed.

In Deibert v. Rhodes, 91 Pa. Superior Ct. 23, the court below struck off a judgment for want of an exact compliance with this act, and upon appeal to the Superior Court was affirmed by a divided court (Judge Keller and Judge Trexler dissented). An appeal was then allowed by and taken to the Supreme Court and the decision of the Superior Court was reversed. [291 Pa. 550.]

But it will be noted that, in reversing the decision of the Superior Court, the Supreme Court adopted neither the reasoning set forth in the majority opinion nor that contained in Judge Keller’s dissenting opinion. The majority opinion holds that the act is mandatory, that there was a “total failure” to comply with its provisions, that the prothonotary was, therefore, without authority to enter the judgment, and that the court below was consequently right in striking it off. The Supreme Court reversed on the ground, simply, that, instead of a “total failure” to comply with the act, there was, in fact, substantial compliance with it, and that this is sufficient. Mr. Justice Walling, delivering the opinion of the court, points out that the holder of the note, when he handed it to the prothonotary to have it entered, stated to him his precise address, and that this was endorsed on the note. Plaintiff’s address was also noted on the record. This was held to be a sufficient compliance with the act. The Supreme Court decision goes no farther than to hold that that part of the act which requires a separate slip or certificate to be filed, showing the plaintiff’s precise residence address, is directory only and need not be literally complied with to obtain a valid judgment. But that ruling is predicated, at least by implication, upon a substantial, even if informal, observance of the act. It is not held that no compliance whatever is required by the plaintiff, although the court points out that the act “imposes no penalty for its violation.” The only penalty that can be invoked, therefore, must be imposed by the court, and that is in striking off the judgment; and it must be visited upon the plaintiff, who is ignorant and innocent, and not upon the officer, who is negligent. It is true, as Mr. Justice Walling observes, that “the prothonotary might, in a proper case, be liable for any damages resulting from his failure to comply with the statute,” but that does not save the plaintiff in his immediate situation.

In the instant ease, there has admittedly been a “total failure” to comply with the statute. If such had been the situation in the Deibert case, as we read and understand Mr. Justice Walling’s opinion, the Superior Court would not have been reversed. “. . . Where, as here [the opinion says], the required information appears upon the record, it is not necessary to punish innocent plaintiffs because of the officer’s neglect, more especially where no possible harm has resulted.” This can be understood in only one way: If the “required information” does not appear upon the record, and if in every other manner there has been a total failure to comply with the mandate of the statute, it is necessary to punish the plaintiff by striking off the judgment.

But does the petitioner for the rule in the case before us have standing to invoke this penalty? Isidor Cohen, the judgment debtor and defendant, does not complain. It is not alleged that he does not owe the amount of the judgment or that it was procured by fraud or collusion. The sole ground upon which we are asked to strike it off is the prothonotary’s failure to observe what Judge Keller in the Delbert ease referred to as “merely a step in the entry of the judgment.” The judgment, of which the certificate of residence is not a part, was entered. Cohen might object to its regularity because it affects him. It does not affect the petitioner. Her mortgage is as good now, no better or worse, than it was when she received it, and so is the bond. Because it was of record she knew about the Silverstein lien when she loaned Cohen the money and accepted the mortgage. What standing, then, does the petitioner, a third party and a stranger, have to ask the court to strike down a judgment about which the debtor does not complain? While its entry may have been irregular, it stands as a judgment, and it can be attacked only by the debtor defendant.

In taking this view of the matter, we are not without abundant authority. The same question was presented as early as Hauer’s Appeal, 5 W. & S. 473, and decided by Chief Justice Gibson. He said: “When a stranger to a judgment buys land by which it is bound, he knows what he is about; and I am unable to understand, how an error in the concoction of the lien which does not touch the words between the original parties, can do him a wrong to entitle him to a remedy in any shape. He contracts to pay a price proportionate to the value of the land, subject to the encumbrance; or if not, then the price of a clear title, warranted by the vendor’s covenant: and in either case, it rests with the vendor to vacate the judgment, not with him. By avoiding an encumbrance, subject to which he has purchased, he would increase the value of what he got without paying an increased price for it; or give to younger lien creditors a priority at the expense of an older one, which was not originally designed and which none but the debtor had a right to control. If any one is injured by the defects of such a judgment, it is the debtor; and he is the party to correct them. A creditor may, indeed, be injured by a collusive judgment for a fictitious debt which would sweep away his source of payment, and may consequently avoid it collaterally for the fraud; and a terre-tenant also may avoid such a judgment in the same where it would be a fraud upon his title — as was shown by authority in Campbell v. Kent. The question in a contest with strangers is not whether the judgment is erroneous but whether it is fraudulent ; and Lord Holt doubtless meant no more in Proctor v. Johnson, 2 Salk. 600, when he said, in reference to a defense by terre-tenants to a scire facias on a judgment in ejectment, ‘that strangers may falsify, but those that claim under the judgment are estopped and bound by the judgment’ — a dictum which seems to have been misapplied in Ulrich v. Voneida. A creditor, as I have said, may abate a fraudulent judgment for a pretended debt, but he cannot abate an erroneous one for a bona fide debt to gain priority by it, for he was entitled to no priority at the date of the judgment and its erroneousness was no wrong to him.”

This doctrine has never been modified or departed from. Thus it is reiterated in Drexel’s Appeal, 6 Pa. 272, where the court, in a per curiam, says: “In this case, as in that (referring to Hauer’s Appeal, supra), it (the judgment) might have been reversed on a writ of error or set aside in the court below, on motion, but only at the instance of the defendant; never at the instance of a stranger. As long as the party injured by the irregularity submits to it, no one else can complain, for a third party has a right to interfere with a judgment only when it is collusive.” Again, in Davidson v. Thornton, 7 Pa. 128, the rule is once more enunciated by Chief Justice Gibson, where he says: “. . . a judgment confessed in a district court on a warrant to confess in a court of common pleas, and which was consequently entered without the semblance of any authority, could not be set aside, directly or collaterally, at the instance of a subsequent judgment creditor.” In Holshue v. Morgan, 170 Pa. 217, the same doctrine was applied. In Milleisen v. Senseman, 4 Pa. Superior Ct. 455, a part of the syllabus reads as follows: “An actual but irregular judgment entered on the records of a court without authority can only be reversed on a writ of error or set aside in the court below, on motion; and only at the instance of the defendant, a stranger or third party has a right to interfere with the judgment only when collusive.” In Bank v. Tanning Co., 170 Pa. 1, it was said: “It is only for fraud that a solemn judgment of a court of record may be attacked by third parties;” citing Gordon v. Preston, 1 Watts, 385, and Drexel’s Appeal, supra. See, also, Sherrard v. Johnston et al., 193 Pa. 166. It seems unnecessary to cite further authority to sustain the view we take of the matter.

Now, Nov. 5, 1928, rule discharged. Prom Henry D. Maxwell, Easton, Pa.


author: Schaeffer, P. J.,

text:
    Commonwealth v. Conrad et al.

      David Sharman, Jr., for defendant and rule; Paul H. Price, contra.
    Dec. 8, 1928.
   Schaeffer, P. J.,

The defendants here are the Supervisors of the Township of Longswamp, a township of the second class in this county. They were duly indicted, tried and convicted upon the charge of failing to erect posts and index-boards at the various intersections of public roads in their township, after twenty days’ personal notice, in pursuance of the Act of May 16, 1921, P. L. 554. Upon the trial, the defendants, at the close of the testimony, moved for the direction of a verdict of “not guilty,” and, after verdict of “guilty,” have moved for a new trial.

The defendants earnestly contend that the Commonwealth failed to show that any personal notice of the absence of index-boards had been given to the defendants before their arrest, and that, therefore, their failure to erect index-boards was not a misdemeanor. It appears from the testimony that one A. M. Wagonhorst deposited in the United States mail at Allentown, Pa., a duly stamped and registered letter, addressed to each supervisor, notifying them “to see to it that all Longswamp public roads at intersections are marked in strict accordance with Pennsylvania laws . . . within a period of twenty days.” Return receipts, signed by two of the supervisors and by the wife of the third as his agent, were offered in evidence. There was no other testimony of any kind as to the receipt of the letters by either defendant.

The question now before us is whether such notice by registered mail constitutes personal notice within the meaning of the Act of 1921. It would seem to be clear that in the absence of any proof that Mrs. Conrad, who signed the receipt for the letter addressed to her husband, actually delivered that letter to her husband, we cannot hold that the Commonwealth has shown any notice whatsoever to him. And we are of the opinion that notice by registered mail to the other supervisors was not such “personal notice” as is contemplated by the statute. The term “personal notice” has a fixed and definite meaning in the law. Even in civil cases, it has been repeatedly held that when notice is required by a statute and no manner of service is pointed out, personal service is meant. And “personal service” is delivering the writ, notice or order to the defendant personally, as contradistinguished from other modes of service, and, hence, does not include service by leaving a copy at the defendant’s last known place of abode or by mailing a copy to him: Conway v. Campbell, 38 Mo. App. 473; Williams v. Dittenhoefer, 86 S. W. Repr. 242; Rathbun v. Acker, 18 Barb. (N. Y.) 393; Haldane v. United States, 69 Fed. Repr. 819; Moyer v. Cook, 12 Wis. 335; First National Bank v. Holmes, 94 N. W. Repr. 764; Dalton v. Railway Co., 87 S. W. Repr. 610. And in proceedings for divorce where “written notice” or “personal notice” is required by the rules of court, it has been uniformly held that personal service of the notice must be made if the respondent can be found: Adams v. Adams, 15 Pa. C. C. Reps. 237; McShane v. McShane, 24 Dist. R. 147. Accordingly, in criminal cases, where the rule of strict construction must be applied and where the defendant is entitled to every reasonable doubt arising out of the evidence and the law, it must follow that sending notice by registered mail cannot be held to be “personal notice” within the meaning of the statute creating the offense.

And now, to wit, Dec. 8,1928, the rule for a new trial is made absolute.

Prom Charles K. Derr, Reading, Pa.


author: Stewart, P. J.,

text:
    Blaga’s Estate.

      Desmond J. McTighe (of the Philadelphia Bar), for petitioner.

      John A. Moran, for accountant.
    Nov. 12, 1928.
   Stewart, P. J.,

The Chancellor of the Royal Roumanian Consulate at Philadelphia presented a petition, alleging that Peter Blaga died intestate in this county; that letters of administration were granted to the Gosztonyi Savings and Trust Company; that this company has filed its first and final account, and it proposes to make distribution to decedent’s mother without the appointment of an auditor; that both decedent and the mother were Roumanian citizens, the latter now residing in Roumania; that by reason of a treaty between the United States and Roumania, ratified June 13, 1883, it was the legal duty of this petitioner to present this petition, article 15 of the treaty being as follows:

“In case of the death of any citizen of the United States in Roumania or of any Roumanian citizen of the United States without having any known heirs or testamentary executors by him appointed, the competent local authorities shall give information of the circumstances to the Consuls or Consular Agents of the nation to which the decedent belonged in order that the necessary information may be immediately forwarded to parties interested.
“Consuls General, Consuls, Vice-Consuls, Consular Agents shall have the right to act personally or by delegate in all proceedings on behalf of the absence of minor heirs or creditors until they are duly represented.”

Petition also alleges that it may be detrimental and prejudicial to other heirs of the decedent, citizens and residents of Roumania to make this payment without an adjudication by the court as to who' are entitled to receive the estate. A citation issued, and an answer was filed admitting all the facts in the petition, but averring that under and by virtue of section 49 (b) of the Fiduciaries Act of 1917, respondent has the right to make distribution without an audit of its account. It is rather unusual for an administrator or an executor to object to the appointment of an auditor. Absolute protection is afforded to them when distribution is made in accordance with an auditor’s report duly confirmed by the court. The sole question is as to the power of the court to appoint an auditor. In United States v. Rauscher, 119 U. S. 407, it was held “that a treaty to which the United States is a party is a law of the land, of which all courts, state and national, are to take judicial notice and by the provisions of which they are to be governed, so far as they are capable of judicial enforcement.” Section 49 (a) of the Fiduciaries Act of June 7, 1917, P. L. 447, provides: “No executor or administrator shall be compelled to make distribution of the estate of his testator or intestate until six months be fully expired from the granting of the letters testamentary or of administration in the estate. After the expiration of said period, distribution may be ordered by the Orphans’ Court having jurisdiction of the accounts of the executor or administrator on petition of any person having an interest in the assets to be distributed or on petition of any creditor of the decedent.” Clause (b) is as follows: “Executors or administrators may make distribution and pay or deliver legacies, without the audit of their accounts, upon such security as may be satisfactory to them, nevertheless at their own risk, but without liability to any creditors of the decedent who shall not have given written notice to the executor or administrator within six months after the granting of letters testamentary or of administration, provided that such executor or administrator has complied with the provisions of section 10 of this act. Where distribution of a decedent’s estate is awarded by the Orphans’ Court after audit and confirmation of any account of the executors or administrators, such decree of distribution shall protect the executors or administrators from personal liability with respect to the property so distributed. In making distribution under such a decree, the executors or administrators shall not be entitled to demand refunding bonds from the distributees, except in the cases specially provided for by this act and in other cases in which the court shall direct the giving of refunding bonds.” Reading the treaty and section (a), it is plain that the petitioner has an interest in the assets to be distributed. While section (b) does not say that “executors or administrators may make distribution,” yet it cannot be pretended that when executors or administrators come into court and file their accounts they have a right to make distribution when the court thinks that an auditor should be appointed. The mere fact that the law requires them to account under the supervision of the court gives the court a right to appoint an auditor. The principle is the same as that applied in Furth v. Stahl, 205 Pa. 439, the syllabus of which is: “Where a court has in its own hands a fund raised by its own process, its jurisdiction to appoint an auditor to distribute the fund does not depend upon any one’s consent.”

And now, Nov. 12, 1928, the court appoints R. S. Taylor, Jr., auditor to make distribution of the fund in the hands of the accountant to and among the parties entitled thereto, and to make report thereof to the court.

Prom Henry D. Maxwell, Easton, Pa.


author: Reno, P. J.,

text:
    Hartzell v. Hartzell.

      Bute, Rupp & Welty, for libellant.
    Nov. 26, 1928.
   Reno, P. J.,

The master recommended a divorce, but the affidavit to the libel is not in the form required by statute. It avers merely that the facts alleged in the libel are true and correct. It omits the required averment that the complaint is not made out of levity or collusion, etc.

The libel is fatally defective: Hoffman v. Hoffman, 30 Pa. 417, 419; Walentynowicz v. Walentynowicz, 89 Pa. Superior Ct. 182. Libellant concedes this, but suggests that she be permitted to cure the defect by amendment.

This brings forward again the vexing question of amendments in divorce proceedings. Upon this subject there are numerous decisions, principally by lower courts, but the positions therein announced are so diverse that it is difficult to formulate a consistent, clear and workable rule from them. Upon one point, however, there is practical unanimity, that is, amendments are not permitted after the master has filed his report. Still, we have found at least one case where a libel “formally defective” was permitted to be amended even after an appeal (Heilbron v. Heilbron, 158 Pa. 297), and another where the libel was amended during the trial: Fay v. Fay, 27 Pa. Superior Ct. 328. But we still lack a clear, broad, authoritative (appellate or statutory) announcement as to what may be amended, in what particulars libels may be amended, how the amendments shall be made and when they may be made. Until such announcement is forthcoming, we think a court should allow amendments with great caution and should never allow an amendment in a particular which the appellate courts have pronounced “fatally defective.”

Even if we were able to see our way clear to permit an amendment, it could be allowed only upon notice to respondent in the same manner as the original subpoena was served and subject to the same requirements as to time of service and return. Moreover, since the effect of the amendment is the equivalent of a new libel (Maynard v. Maynard, 18 Dist. R. 410), it would necessarily follow that all the subsequent proceedings, including the taking of the testimony, be repeated. In these circumstances, libellant’s cause is as well served by a new case. Indeed, it is better served; for thereby a decree can be secured free of the class of objections which might readily produce its subsequent vacation.

Now, Nov. 26, 1928, the master’s report is not approved, the divorce is refused and the libel is dismissed, without prejudice to libellant’s right to institute a new action for divorce upon the same ground and upon the same facts.

Prom Edwin L. Kohler, Allentown, Pa.


text:
    Wright v. City of Philadelphia et al.
    A. W. White, for plaintiff.

      G. Coe Fcwrier, Assistant City Solicitor, and A. T.-Ashton, City Solicitor, for defendants.
    June 10, 1929.
   Taulane, J.,

This is a motion to quash an alternative writ of mandamus.

The plaintiff is a captain of police of the City of Philadelphia. The Director of Public Safety suspended him for conduct unbecoming an officer, and preferred charges against him before the Civil Service Commission for his discharge. The charges were as follows:

Charge No. 1. Conduct unbecoming an officer.

Specification 1. “In that you were promoted to a captaincy on May 2, 1928, having been, prior to that date for a period of eighteen years, a sergeant with the salary of $170.83 per month; in that you are married and have eight children; in that you have no bank account and apparently never had any; in that on June 29, 1928,- you purchased a certificate of deposit in the sum of $7000, paying for it in currency; in that your only explanation was that this sum represented your saving and [you] stated to the Grand Jury of Philadelphia County, August Sessions, 1928, that you had carried this amount in your pocket prior to that time; in that you own the house in which you live, which you bought in 1920 for $2500, paying $500 down in cash; in that you have since reduced the mortgage of $2000 to $450, making the various payments, constituting a total of $1552, at various times in currency; and in that you were unable to offer, and did not offer, any reasonable explanation to the Grand Jury of Philadelphia County, August Sessions, 1928, as to how you could have come into the possession of these moneys and properties honestly.”

Specification 2. “In that the Grand Jury of Philadelphia County, August Sessions, 1928, after hearing and analyzing the evidence concerning the accumulation of your aforesaid property, stated that they believed the money received and handled by you was either all, or substantially all, dishonestly acquired, and concluded, and so stated in their special presentment of Oct. 29, 1928, that you were not fit to hold any position in the Municipal Government.”

The Civil Service Commission, after hearing, found that the plaintiff was not guilty of the charges and ordered his reinstatement, with pay from the date of his suspension. When he reported for duty he was served with a written statement from the Director of Public Safety of certain charges against him, which, he was advised, would justify his demotion on May 14, 1929, to the position of a patrolman at a reduced salary, with notice of his right to furnish within five days such written reply to said charges that he might desire to make. The charges were as follows:

“Because, while an officer of high rank in the Bureau of Police, you depos-. ited the sum of $7000 in currency at one time, and explained this deposit under oath before the Civil Service Commission in November, 1928, by stating that it represented accumulated savings from your salary which you had carried in your pocket in the form of bank notes for many years.
“During the period of time wherein you swore you saved this money, you raised a large family, bought your own home, substantially reduced by cash payments a mortgage against your property and incurred and discharged the other usual obligations incidental to life in this community — all this on a salary which averaged during the past five years about $180 per month.
“I cannot understand how any man or group of men could believe your sworn statement that, because of what you described as a lack of faith in banks, you carried in your pocket each day for many years such a large sum of money. I do not believe it.
“I believe that this money was in a large part, if not entirely, acquired by you dishonestly.
“From the testimony, which came from your own lips under oath, not only my confidence in you, but that of the public as well, is seriously impaired, if not destroyed.
“A captain of police must have the full confidence of the Director and the public. Otherwise there cannot be that complete co-operation which is so vitally necessary to maintain law and order by a clean and honest police force.”

The copy of the charges and notice of his contemplated demotion on May 14, 1929, were served on the plaintiff on May 9, 1929, but instead of answering the charges or waiting until he was demoted, he sued out on May 11, 1929, a writ of alternative mandamus against the Director of Public Safety “to show cause why the charges preferred against . . . [plaintiff], as of May 8, 1929, which charges have caused the demotion of . . . [plaintiff] to the position of patrolman as of May 14, 1929, should not be withdrawn and . . . [plaintiff’s] rank as captain fully recognized,” and against the Director of Public Safety, City Controller and City Treasurer to show cause why plaintiff should not receive full compensation as captain from the date of his suspension.

When the writ was issued the plaintiff still held the rank of captain, and his time to answer had not expired. The Director of Public Safety cannot be restrained by mandamus or otherwise from preferring charges against the plaintiff for the purpose of demoting him or ordered to withdraw charges already preferred. There is no suggestion that the proceeding was not regular or that the plaintiff was deprived of his right of answer. If the plaintiff failed to file an answer or by answer denied the charges or alleged that the Director was concluded by the findings of the Civil Service Commission, and the Director of Public Safety then demoted him, he would have a standing by mandamus to ask for his reinstatement if his demotion was illegal. Until he has been demoted, he is in no way harmed. This proceeding is premature and plaintiff’s prayer for relief shows it. He does not ask that he be restored to his rank of captain, but that the charges against him be withdrawn. For these reasons the writ might well be dismissed, but we prefer to dispose of the case on the merits.

It is now well settled that the Director of Public Safety has ample authority to demote a member of the police force, for reasons which are just and not political or religious, if the officer is furnished with a copy of the charges and given an opportunity to answer them. He is not entitled to a trial; the truth or falsity of the charges is for the Director alone. (McCoach v. Philadelphia, 273 Pa. 317.)

Some reason must be assigned; it is not sufficient to charge simply “for the good of the service.” (Truitt v. Philadelphia, 221 Pa. 331.) We think the reasons assigned by the Director are sufficient to justify plaintiff’s demotion. They are personal to the plaintiff, and are not religious or political. The responsibility for the conduct of the police department is on the Director of Public Safety and not on the courts. It is" for the Director alone, without trial, to determine the truth or falsity of the charges without appeal to the courts. (Shellenberger v. Warburton, 279 Pa. 577, 581.) Unless the charges are meaningless (Truitt v. Philadelphia, 221 Pa. 331) or manifestly frivolous, the courts cannot interfere with the action of the Director.

The plaintiff, in his brief, concedes that the Director of Public Safety, unless concluded by the findings of the Civil Service Commission, would be justified in demoting him. The real point in controversy is whether the Director of Public Safety is concluded by the findings of the Civil Service Commission.

A member of the police force cannot be removed or discharged except, by trial and conviction by the Civil Service Commission. (Act of June 25, 1919, § 18, P. L. 581, 620.) It is true the Civil Service Commission refused to discharge the plaintiff because, in their opinion, the Director of Public Safety had failed to substantiate his charges against the plaintiff.

While there is no doubt of the conclusive effect of the findings of the Civil Service Commission so far as they relate to plaintiff’s discharge, we are quite clear that they in no way bind or preclude the Director from demoting the plaintiff. The duty and responsibility of a demotion are vested in the Director of Public Safety, and not in the Civil Service Commission. (Leary v. Moore, 4 D. & C. 25.) The Civil Service Law nowhere suggests that any act of the Commission can interfere with the discretion of the Director in demoting a member of the police force. The Director must act on his own sense of duty, and he may draw his own inferences from a given state of facts. What constitutes sufficient ground for demotion must necessarily be largely a matter in the discretion of the Director. (Thomas v. Connell, 264 Pa. 242, 246.)

The Director states that he believes the plaintiff had acquired, while in the police department, a large sum of money dishonestly; that he discredits plaintiff’s testimony before the Civil Service Commission, and for these reasons he has lost all confidence in the plaintiff. We can think of no better reason for the demotion of a member of the police force than want of confidence in the Director of Public Safety, particularly when the officer holds the high rank of captain, and is guilty, in the belief of the Director, of dishonesty. No one suggests that the Director’s belief is capricious or insincere. The guilt or innocence of the plaintiff is not before us.

No doubt, it sometimes happens that the Director is morally certain of the guilt of a member of the police force which he is unable to establish by legal evidence, and it may be, in some instances, that he has legal evidence, but for reasons of policy or the absence or perversity of witnesses, he cannot avail himself of it.

We cannot interfere with the action of the Director in demoting the plaintiff. The Mayor, City Controller and City Treasurer should not have been made parties. No relief can be had against them. There is some question whether the appropriation of 1928 for the salaries of the police department lapsed at the end of 1928. The City Solicitor at bar stated that the Director of Public Safety would endeavor in every way to have plaintiff’s salary paid him from the time of his suspension. The Director can do no more than sign warrants for plaintiff’s salary, but he cannot sign one for plaintiff’s salary earned in 1928 if the appropriation for that year lapsed. These questions could be more properly raised by answer.

We will quash the mandamus as to salary without prejudice, but with the right to the plaintiff to apply for further relief if he does not receive his salary as ordered by the Civil Service Commission.

And now, to wit, June 10, 1929, the writ of alternative mandamus is quashed, except that said writ, so far as it applies to the plaintiff’s salary, is quashed without prejudice, with the right to the plaintiff to ask for further relief should his salary as captain be not paid to him from the time of his suspension.


author: Lewis, J.,

text:
    Brierhurst Realty Company v. E. R. French & Co.

      Charles L. Smyth, for plaintiff; Francis F. Burch, for defendant.
    May 23, 1929.
   Lewis, J.,

This matter is now before the court on a rule on the defendants, granted upon petition of the plaintiff, to show cause why an attachment should not issue against them for contempt by reason of the fact that they have not paid the amount directed to be paid by them in the final decree.

In support of its rule, plaintiff relies upon such eases as Messmore’s Estate, 293 Pa. 63 (1928), and Com. ex rel. Di Giacomo v. Heston, 292 Pa. 63, 68, and in an endeavor to bring this case within those relied upon, it is contended that the defendants here were trustees of the funds collected by them in their capacity as agents for the plaintiff. If the premise upon which plaintiff’s position rests were true, it is likely that the situation would be controlled by the cited cases, but it is not. A reference to the master’s report filed in this case, after many meetings and much testimony taken in connection with the account filed by the defendants and the exceptions thereto, shows clearly that the moneys collected by them under the agency agreement were not held as trust funds; the balance set forth in the final decree constituted the amount remaining due as a result of the complicated accounting. Everything points to the fact that the entire matter, which forms the basis for this proceeding, represented a joint venture of the defendants and the other persons interested in the plaintiff corporation. The arrangement existing between the plaintiff and the defendants contemplated that the latter should collect rentals of the apartment-house and make disbursements and expenditures therefrom, a large discretion being vested in the defendants as to the amounts and nature of expenditures. There were many disputes as to the disbursements actually made from these funds, and defendants asserted they were entitled to additional credits to those allowed, but the master, after listening to the testimony, concluded that the defendants were indebted to the plaintiff in the sum of $4446.56, with certain interest. He specifically found that there was no fraud on the part of the defendants, and as further indication of his feeling in the matter, divided the costs between the parties. It is clear that the acts of both parties and the way they transacted business between them contributed to the necessity of this proceeding.

We feel that the decree in the present ease was one requiring the payment of money arising from a contract, and that, therefore, to make the present rule absolute, would be a violation of the Act of July 12, 1842, P. L. 339, regarding arrest or imprisonment on any civil process in a suit instituted for the recovery of money due under a decree founded upon contract. While it is to be regretted that the defendants have not complied with the order of the court, there is no evidence of fraud on their part in disobeying the decree and there is no contempt: Com. ex rel. v. Heston, 292 Pa. 63. Rule discharged.


author: Martin, P. J.,

text:
    Schwartz v. Stein et al.

      J. L. Ehrenreich, for plaintiff; J. Gross, for defendant.
    May 16, 1929.
   Martin, P. J.,

Jacob Berman and Rose Berman signed a note, dated Nov. 26, 1927, payable one day after date, accompanied by a warrant of attorney authorizing the entry of judgment against them in the sum of $2500. On the back of the note there is an endorsement authorizing any attorney of any court of record to enter judgment against the defendants, Harry Stein and Alexander Weinstein, who endorsed the note. The note was filed with the prothonotary and judgment was entered against Jacob Berman and Rose Berman, the makers of the note, in the Court of Common Pleas No. 5, as of December Term, 1927, No. 15765.

A copy of the note and endorsement was filed with the prothonotary and judgment was entered against the endorsers in the Court of Common Pleas No. 5, December Term, 1927, No. 15766.

The endorsers filed a petition, averring that neither the original note nor the original endorsement was filed of record in this suit against them, but that the judgment was entered upon plaintiff filing a copy of the note and endorsement certified by plaintiff’s attorney.

A rule was granted to show cause why the judgment should not be struck off. An answer was filed, averring that the original note and endorsement was filed of record in the Court of Common Pleas No. 5, December Term, 1927, No. 15765, the case in which judgment was entered against the makers.

That the judgment in the present case against the endorsers was entered upon filing with the prothonotary a copy without producing the original note and endorsement containing the confession of judgment is not denied.

There is no authority in the warrant signed by defendants for entering judgment by filing a copy instead of the original.

It is apparent on the face of the record that the instrument filed is a copy, and that the judgment is irregular.

And now, to wit, May. 16, 1929, it is ordered that the rule to strike off the judgment be made absolute.


author: McPherson, P. J.,

text:
    Martin et al. v. Weaver et al.

      John B. Jackson, for plaintiffs.

      Walter K. Sharpe and John P. Sipes, for defendants.
    Oct. 4, 1928.
   McPherson, P. J.,

This action was brought to determine the title to an undivided three-fourths interest in a tract of land situate in Ayr Township, Fulton County, more particularly described in “Exhibit D” in case stated.

Under the facts agreed upon, Peter Martin was seized in fee of the tract in dispute on Aug. 1, 1861, and died so seized on some date prior to Sept. 28, 1861, leaving a last will and testament, wherein he devised the tract in question, as part of a larger tract, to Maria and Elizabeth Martin, his daughters, subject to a life interest in favor of his widow, Barbara Martin.

The common source of title of the plaintiffs and the defendants in this action is Christian Martin, a son of Peter Martin, and the surviving brother of Elizabeth Martin, who, on April 17, 1875, was married to Jacob Hykes. Immediately prior to her death, Elizabeth Hykes was seized in fee of an undivided three-fourths interest in the tract of land in question, and was a tenant by the entirety with her husband, Jacob Hykes, of the other one-fourth interest in said tract.

Elizabeth Martin Hykes acquired an undivided one-half interest in the tract in dispute under the terms of her father’s will, and an undivided one-fourth interest therein by operation of the intestate laws of the Commonwealth of Pennsylvania, as they affected an undivided one-half interest in said tract of land which her sister, Maria Martin, had secured through the operation of her father’s will, and of which the said Maria Martin died seized in fee, subject to her mother’s life estate therein, sometime prior to 1879, intestate, unmarried and without issue. Jacob Hykes and Elizabeth Martin Hykes, his wife, acquired as tenants by entireties an undivided one-fourth interest in the tract in dispute by a conveyance thereof to them by Christian Martin and his wife, dated Aug. 30, 1879, whereby he conveyed said interest as an heir-at-law of his sister, Maria Martin, who had predeceased him. The life estate of the mother of Maria, Elizabeth and Chistian Martin in the tract in dispute expired by reason of her death in 1879, prior to Aug. 20th of that year. Elizabeth Hykes died on Aug. 12, 1909, without issue and leaving to survive her as her heir-at-law her husband, Jacob Hykes, and her brother, Christian Martin. Upon her death, title to the tract in dispute was held as follows: An undivided one-fourth interest therein was owned and held in fee by Jacob Hykes as the surviving tenant by the entirety. The life estate in the undivided three-fourths interest in said tract of land became vested in Jacob Hykes as the surviving husband of Elizabeth Hykes, the former owner in fee, as tenant by the courtesy, with remainder in fee to Christian Martin, brother and only, heir-at-law of Elizabeth Hykes.

Subsequent to the death of Elizabeth Hykes, Christian Martin and his wife executed and delivered to Jacob Hykes the following:

“Know all men by these presents, that we, Christian Martin and Lydia J. Martin, his wife, of Ayr Township, Fulton Co., Pa., as well for and in consideration of the sum of two thousand four hundred and fifty dollars this day received of Jacob Hykes, also of Ayr Township, said county, as well as two hundred and sixty-three dollars previously received of him, the receipt of said several sums amounting to the sum of $2713, is hereby acknowledged before sealing and delivery hereof and for other causes specially moving, we have remised, released, quit-claimed and forever discharged, and by these presents do remise, release, quit-claim and forever discharge the said Jacob Hykes, his heirs, executors, administrators and every of them from any further payment or payments on account of any estate, right, title, interest, claim or demand that we might have in any estate that our deceased sister, Elizabeth Hykes, might have in the estate of her father, Peter Martin, dec’d, and if our said sister, Elizabeth, has any estate of her own right, for and in consideration of the premises the same is now the absolute estate of Jacob Hykes.
“In witness whereof, we have hereunto set our hands and seals this 21st day of May, A. D. 1910.”

Jacob Hykes died on Feb. 10, 1927, and by his will directed his executor to sell his real estate. Under this direction, his executor sold the fee of the tract in dispute as the real estate of Jacob Hykes to the defendants.

The legal effect of the above paper upon the title to the undivided three-fourths interest in the tract in dispute is the subject of contention between the plaintiffs and defendants to this action.

1. The plaintiffs contend that this paper is not a deed and conveys no title to any real estate, and that they, as heirs of Christian Martin, own the title to the three-fourths interest in the land in dispute.

2. That it has no effect as a conveyance of the equitable title to any interest in the land in dispute, because the will of Jacob Hykes shows that Jacob Hykes, -as a party to “Exhibit C,” did not intend, by accepting it, to discharge the obligation on the part of Christian Martin to repay to him the sums of money which are referred to in “Exhibit C” as a consideration for its execution and delivery.

On the other hand, it is contended on the part of the defendants:

1. That the paper marked “Exhibit C” is a conveyance as a quit-claim deed of all the right, title and interest of Christian Martin and his wife in the lands of his, Christian Martin’s, sister Elizabeth, which she at the time of her death owned in her own right or had acquired from the estate of her father, Peter Martin, deceased.

2. That this general description of the land as contained in “Exhibit C” can be made certain through parol, as effective in law as a description of lands. That, as it is admitted in the case stated, Elizabeth Martin was seized in fee at the time of her death of the three-fourths interest in dispute, the description of land used in “Exhibit C” applies to this undivided three-fourths interest and the latter is conveyed by “Exhibit C.”

The main question, therefore, is this: Is “Exhibit C” a deed in such form as would result in the conveyance of an interest in real estate to the grantee? One of the forms of conveyance recognized in Pennsylvania, denoted as a secondary conveyance, is that of release, which is a conveyance of an estate in lands and tenements to another who has some former estate in possession. The usual words are “remise, release and forever quit-claim,” but no livery of seisen was ever necessary. A release does not require words of inheritance where made to a party in possession: Shinn v. Holmes, 25 Pa. 142; nor is it essential that it should be in technical form: Gray v. McCune, 23 Pa. 447.

In the latter case, Judge Lewis, in an opinion of the court, says: “In Pennsylvania it is not necessary that a release should be dressed up in legal and technical form. It is sufficient if it be in substance and words. The intention of the parties will be carried out in a court of law as fully as if they were before the chancellor governed by the principles of equity.”

Under the above authorities, it would seem that “Exhibit C” was in form a release by the person in remainder to the life-tenant in possession, and would operate as a release if there is sufficient description of the subject-matter upon which it may operate.

It would seem very clear that the purpose intended to be accomplished by Christian Martin and Jacob Hykes by the execution of the “Exhibit C” was a definitive adjustment of their relative rights in the property left by Elizabeth Hykes, the deceased wife of one of them and a deceased sister of the other.

Under the intestate laws which determined the devolution of real and personal property of Elizabeth Hykes, Jacob Hykes was entitled to an absolute ownership of all her personal property; he was entitled to a life interest in her real estate, and Christian Martin, as her other heir-at-law, was entitled to her interest in this real estate in remainder, subject to the life estate of Jacob Hykes.

Under these conditions, the only portion of the estate of Elizabeth Hykes in which they both had relative rights was her real estate, and as such it would be the only subject-matter of adjustment as between the two. It would seem very clear, therefore, that the subject-matter upon which the paper marked “Exhibit C” was to operate was the real estate of Elizabeth Hykes. In preparing the paper, the scrivener did not describe in detail the subject-matter upon which the paper was to operate. The only words of description of the subject-matter upon which it was to operate is the word “estate” of Peter Martin and “estate” of Elizabeth Hykes. In this paper, too, the word “estate” is used not only as the subject-matter upon which it operates, but as descriptive of the type or character-of interest in the subject-matter. In view of the use of the word “estate,” apparently with different meanings, and to evidence the purpose of the execution and delivery of the paper, the construction and interpretation of the word “estate” is essential to the determination of the questions raised in this case.

In 21 Corpus Juris, 912, it is said that, in legal parlance, the meaning of the word “estate” is more restricted, but is not always uniform, and in many cases its precise meaning can be ascertained only from the context or the circumstances under which it is used. It should be construed in a sense which will accomplish and not defeat the purpose of the instrument in which it is used. As originally used, the term signifies the condition or circumstance in which the owner stands with regard to his property, but it has been extended to indicate the property itself. While in its primary and technical sense the word “estate” refers only to an interest in land, yet it has acquired a much wider meaning and application, being applied to all property of every description, including personal property as well as real estate, and its most extreme sense signifies everything of which riches or fortune may consist.

In Messmore v. Williamson, 189 Pa. 73, the Supreme Court says: “While in its popular use the word ‘estate’ includes both real and personal property, yet, when used in a strictly technical sense, it applies to realty only.”

Having in mind the fact that originally the term signified the condition or circumstance in which the owner stands with regard to his property, but that it has been extended to indicate the property itself, and when so used, in its primary sense, it simply includes lands or real estate, and that the estate of Elizabeth Hykes in which all parties to the instrument were interested was the real estate, we are of the opinion that a fair paraphrase of the granting clause of “Exhibit C” would be as follows: “We do remise, release, quit-claim and forever discharge the said Jacob Hykes, his heirs, executors and administrators, and every of them, from any further payment or payments on account of any estate, right, title, interest, claim or demand that we might have in any right, title, interest, claim or demand that our deceased sister, Elizabeth Hykes, might have in the real estate of her father, Peter Martin, deceased, and if our sister Elizabeth had any real estate of her own right, for and in consideration of the premises, the same is now the absolute interest of Jacob Hykes.”

Under such construction of “Exhibit C,” it would operate as a quit-claim deed on the interest which the grantors had in the real estate of Elizabeth Hykes, which she had acquired from her father or which she owned in her own right at the time of her death. This is what “Exhibit C” effects in law, and was in fact intended to effect by the parties thereto, and the consideration given in money by Jacob Hykes to Christian Martin was in exchange of his interest in his deceased sister’s estate, in so far as it had not passed to Jacob Hykes under the intestate laws.

Under the authority of Wharton v. Fisher, 2 S. & R. 178, and a number of more recent decisions of the Supreme Court, this general description of the subject-matter of this conveyance may be made more definite and precise by proving by parol the particular real estate of which Elizabeth Hykes died seized in her own right or as derived from her father.

Under the case stated, it is admitted that at the time of her death Elizabeth Hykes was seized in fee of an undivided three-fourths interest in the lands in dispute, which, therefore, under the above authorities, was within the general description of the subject-matter covered by the “Exhibit C,” and by its execution and delivery was conveyed by Christian Martin to Jacob Hykes. Therefore, Jacob Hykes was the absolute owner in fee of the land in dispute, and never having parted with the title thereto prior to his death, it became subject to the operation of the terms of his will, and as such was within the power and authority of his executor to sell and convey in accordance with its terms. That by the said sale and conveyance to the defendants in this action they secured the title in fee to the land in dispute.

In view of this conclusion, it is not necessary to pass upon the other contention of the plaintiff, except to say that “Exhibit C” is on its face an absolute exchange of the interest in lands by Christian Martin for the money paid him at the time of the execution and in discharge of the money theretofore loaned to him by Jacob Hykes. Any statement in the will would not invalidate the completed transaction, nor could it give life to the debt theretofore discharged. A true construction of the will would be that in distribution of his estate, Jacob Hykes meant to impose on any share devised to the heirs of Christian Martin the charge of repaying to his estate the sum paid to Christian Martin as if it were an advancement. This he had a perfect right to do, and his so doing would not be counted against him in any court of equity. Let judgment be entered in favor of the defendants.