author: Wanner, P. J.

text:
    Noll v. National Liberty Insurance Company.

      Practice, C. P. — Trial of several cases at same time.

    1. Where there are several cases pending and there is no material difference in the separate cases and no disadvantage or prejudice to any of the parties will result from their being tried together, the court has power to consolidate the actions and try them all together.
    2. The plaintiff being the same party in eighteen actions brought against as many fire insurances companies for losses on personal property destroyed in the same fire, and the attorneys being the same on each side in every case, and the nature of the defences the same: Ordered, that all should be tried together.
    Rule to show cause why actions should not be consolidated and tried together. C. P. York Co., April T., 1920, No. 32.

      Stewart & Gerber, for plaintiff; Niles & Neff, for defendants.
   Wanner, P. J.

The plaintiff brought separate actions of assumpsit on twenty policies of insurance, issued by as many different fire insurance companies, upon certain personal property of the plaintiff which was afterward destroyed in the same fire.

Judgment for the plaintiff for $1000, for want of an affidavit of defence, was recovered in one case, and for $500, by the verdict of a jury, in another case. In a third case, a verdict for the plaintiff for $1000 was set aside by the court as excessive, and a new trial granted. Each trial consumed a week's time. The questions of law and of fact involved were precisely the same, and there was no substantial or material difference in the evidence submitted to the respective juries at the trial of these cases.

The counsel for the plaintiff and for the defendants, respectively, are the same in all the cases, and the defence is conducted in each instance by the same representatives of all of the defendants, who are making common cause against the plaintiff, and both cases were tried before the same judge.

There is, therefore, no material difference in the questions of law and of fact involved in the separate cases, and no disadvantage or prejudice can, in the opinion of this court, result from the trial of all the remaining cases together. Much will be gained by both parties by the saving of time and expenses of trial, and in the uniformity of the results following the trial of all of the cases at the same time.

The power of the court to order cases tried together under such circumstances as these is well established by abundant authority in both our Federal and state courts. In Mutual Life Ins. Co. v. Hillman, 145 U. S. 285, 36 Law Ed. 706, the court said: “Where the English consolidation rule has not been adopted, the American courts, state and Federal, have exercised the authority of ordering several actions by one plaintiff against different defendants to be tried together, whenever the defence is the same, and unnecessary delay and expense will be thereby avoided. . . . The learning and research of counsel have produced no instance in this country in which such an order, made in the exercise of the discretionary power of the court, unrestricted by statute, has been set aside on bill of exceptions or writ of error.” Vide cases cited in the opinion in this case.

The authority of the court to try a number of cases together is also carefully considered and fully sustained by the Supreme Court of Pennsylvania in Azinger v. Pennsylvania R. R. Co., 262 Pa. 242-245, where the following language was quoted with approval from the opinion of the court in Lumiansky v. Tessier, 213 Mass. 182, 99 N. E. Repr. 1051: “Where several cases are pending between the same or different parties, which grow out of a single transaction, or which involve an inquiry into the same event in the same general aspects, although the details of evidence may vary materially in fixing responsibility, the court may order them tried together. But they continue separate so far as concern docket entries, verdicts, judgments and all aspects, save only the joint trial. This is a frequent practice and finds many illustrations in our decisions.” For illustrations of the application of this rule to insurance cases similar to these at bar, vide Fidelity Phenix Fire Ins. Co. v. Friedman, 174 S. W. Repr. 215-217; Blackburn v. St. Paul Fire and Marine Ins. Co., 21 S. E. Repr. 922; Southern Stock Fire Ins. Co. v. Raleigh, C. & S. Ry. Co. (N. C.), 102 S. E. Repr. 504; Viele v. Germania Ins. Co., 26 Iowa, 9, 10.

The trial of these cases together will not prejudice the rights of the parties in any essential matter involved in such trial, and separate verdicts will be taken in each case. Neither will it interfere with their right to take out separate writs of error in each case with the same effect as if the cases had been separately tried.

Now, to wit, Nov. 21, 1921, rule absolute, and the setting down of one of the above cases will be sufficient to place them all upon the trial list.

Prom Richard E. Cochran, York, Pa.


source: Caselaw Access Project

author: Lamorelle, P. J.,

license: Public Domain

text:
    Narr’s Estate.

      Domicile — Change—Abandonment of domicile of origin.

    To constitute a legal domicile, two things must concur: the fact of residence and the intention of remaining, and the original domicile continues until abandoned. Merely taking up a residence elsewhere is not sufficient unless there be an intention to abandon the former domicile and establish a new one. Hence, the mere fact that a resident of Philadelphia, on account of her health, sold her house and went to reside with relatives at Ocean City, New Jersey, where she remained until within a few days of her death, was held insufficient to show an abandonment of her original domicile or the establishment of a domicile in New Jersey.
    Exceptions to decree of hearing judge dismissing appeal from the Register. O. C. Phila. Co., July T., 1921, No. 155.
    Testatrix, Margaret J. Narr, who had resided for many years in Philadelphia, owning real estate in that city, on April 28, 1921, because of ill-health, sold her real estate and a large part of her furniture and went to live with relatives at Ocean City, New Jersey. On July 18, 1921, she returned to the University Hospital, Philadelphia, for a serious operation, which was performed on the 20th, and on the 24th she died. Upon an appeal from the Register of Wills who had admitted the will to probate, Gummey, J., the hearing judge, held that there had been no abandonment of her residence in Philadelphia, and dismissed the appeal. Exceptions were taken to his ruling.

      J. A. Bobbins, for exceptions; Bruce A. Metzger, contra.
    April 28, 1922.
   Lamorelle, P. J.,

Domicile and residence are not convertible terms.

Domicile may be acquired by the shortest residence; on the other hand, the longest residence may be insufficient to secure it: Mintzer’s Estate, 2 Dist. R. 584.

The domicile of origin continues until the presumption arising therefrom is overcome by unmistakable evidence of an intention to change it. Domicile is always a question of intention. The burden of proof is on the party alleging change and abandonment: Lowry’s Estate, 5 Dist. R. 729.

Where the testimony offered is conflicting, the facts must first be determined. If the question is before the Court of Common Pleas, the jury settles the matter. If the question is before this court, the auditing judge, sitting as chancellor. His findings of fact, like a verdict of a jury, are to be upheld, unless there is no testimony to support them, or unless glaring error appears.

In the present case the hearing judge, after reviewing the testimony, principally statements made by Margaret J. Narr in her lifetime, found as a fact that there was no fixed intention on her part of selecting Ocean City, New Jersey, as the domicile of choice, and, applying the proper legal principles, decided that Philadelphia, admittedly the original domicile, was the proper place wherein to probate the will, which will thereby necessarily, not only as to form, but also as to substance, is governed by the laws of this Commonwealth.

The principle applied by the hearing judge is concisely stated by Judge Orlady in Hunnings v. Hunnings, 55 Pa. Superior Ct. 261, at page 265: “. . . That the fundamental and controlling requirement is an intention to abandon a former domicile and to establish a true, fixed and permanent abode to which, whenever one is absent, there is a continuing intention of returning. Two things must concur: The fact of residence, and the intention of remaining. The original domicile continues until it is fairly changed for another. Mere taking up a residence is not sufficient, unless there be an intention to abandon a former domicile and establish a new one: 1 Bouvier’s Law Dict.; 10 Am. & Eng. Ency. of Law, Title, Domicile, and annotations from a great number of our State courts.” And see, also, Barclay’s Estate, 259 Pa. 401.

In that we find no error in the findings of fact or in the application of the law, the exceptions are dismissed.


author: Gest, J.,

text:
    Dobbin’s Estate.

      Legacies — Interest on general legacy to life-tenant of residue.

    Where the widow, as equitable life-tenant of the general residuary estate, has been in receipt of all the income of the estate from the date of testator’s death, she is not entitled to interest on a general legacy for the time elapsing between the expiration of the year from the death and the date of payment by having the interest charged against the corpus of the residuary estate.
    Exceptions to adjudication. O. C. Phila. Co., April T., 1921, No. 464.
    The facts appear from the following extract from the adjudication of Judge Henderson:
    “The testator died on Jan. 11, 1917, leaving a will, dated Jan. 25, 1915, duly admitted to probate, upon which letters testamentary issued to the' accountant on July 5, 1917. . . .
    “By his will the decedent gave his widow a legacy of $10,000, and another legacy, clear of tax, to Edward Hampton of $500. He then gave the remainder of his estate, including therein and mingling therewith the share of his father’s estate over which he had a power of appointment, to the trustees therein named, to pay the income to his widow for life, with remainder over upon her death as therein set forth. At the time of his death his estate consisted of personalty of $71, premises No. 3803 Locust Street and No. 11 North 20th Street, and a share of his father’s estate which, by reason of complications, was only settled last June.
    “The widow continued to occupy No. 3803 Locust Street until it was sold and settlement made therefor in August, 1920, meanwhile she paying the taxes, charges on the property. The widow has received down to date the entire income from the estate, including the use of the Locust Street property and the accrued income from the trust estate coming from testator’s father. She now claims her legacy of $10,000 and interest at 6 per cent, from Jan. 11, 1918. The question submitted for my decision is, may she take the ineome on the residuary estate and have the interest on her legacy and the interest on that of $500 to Edward Hampton paid from the principal account!
    “It appears from the attached stipulation of counsel governing the facts that the debits and credits from the assets of this estate were as follows:
    No. 11 North 20th Street:
    Rent received. $3682.00
    Charges paid. 2207.02
    Net receipts. $1474.98
    No. 3803 Locust Street:
    Rental value. $3925.00
    Taxes, water rent, repairs. $1713.88
    Interest on judgment. 647.50
    Interest on mortgage. 1295.00
    3656.38
    268.62
    Income from Estate of James Dobbin:
    1917 to 1920, received. $5006.55
    1921, due but not received. 1927.60
    6934.15
    Income from securities shown in account. $368.50
    Income from securities shown in supplemental account . 443.78
    Income accrued from date of supplemental account . 93.75
    906.03
    Total $9583.78
    “Prom the stipulation it further appears that the Locust Street propertj at the time of the decedent’s death was worth $13,000, whereas by holding i and carrying it until August, 1920, it has been sold at $22,000, an increase of $9500.
    “I find no case exactly like this one, but the principles to be applied seen clear. Interest on legacies is due after one year from the date of the death Had this widow and accountant pressed for a sale of the Locust Street prop erty at that time, it undoubtedly could have been made, but, as will be seen at a loss to the estate, and comparatively little would have been derived iron it at that time, owing to the fact that it was largely encumbered with a mort gage and judgment. Theoretically, the share coming from the decedent’: father’s estate was payable at the time of his death, and if it had been pak over at that time, these legacies, aggregating $10,500, could have beei promptly paid therefrom. It turned out, however, that the estate was ii litigation, and upon the termination thereof and the adjudication upon the account of the executors, the principal sum was awarded to the trustees unde: the will of this decedent direct, provided it was not required in the settlemen of the executrix’s account. In the meanwhile, the entire income therefrom wa: being paid to the widow of Robert P. Dobbin and his executrix. This income including that for 1921, accrued but not yet paid, amounts to $9583.78. Ii other words, $10,500 of this trust fund which, if it had been in hand one year after the death, would have satisfied these two legacies. This payment, however, has been postponed, and in such postponement the income has accrued, and the income arising from this sum of $10,500 has been received and claimed by the widow by virtue of her life tenancy of the estate in remainder. In other words, she has gotten the income from this sum of $10,500, and now asks that the interest which is due her on her $10,000 legacy and the interest due Edward Hampton on his legacy of $500 shall be paid out of principal.
    “I do not agree with this contention. It is unsound, in that the widow is only entitled to the income on what remains after the payment of the debts and the two legacies. The legacies in this estate are prior claims and are to be met before the residuary estate is ascertained. They bear a close analogy to mortgages, the interest on which must be kept down by the life-tenant. See Ward’s Estate, 3 Pa. C. C. Reps. 224, and Neide’s Estate, 22 Dist. R. 563.
    “Counsel for the widow has asked me to consider whether I could not award the interest out of the profit derived from the sale of the Locust Street property. It may appeal to him that such a claim can be fairly made, but he is unable to support his claim with any equitable principle, and, after considering this request, I am free to state I have been unable to find any equitable principle which could be applied in support of this suggestion.”

      William P. Davis, Jr., for exceptant; Edward Hopkinson, Jr., contra.
    March 31, 1922.
   Gest, J.,

It seems clear to us that the widow as legatee is not entitled to claim interest on her legacy from the principal or corpus of the estate, the income of which she has enjoyed since the death of the testator, and which far exceeded the amount of the interest accrued upon the legacy. In addition to Ward’s Estate, 3 Pa. C. C. Reps. 224, and Neide’s Estate, 22 Dist. R. 563, cited by the auditing judge, we may refer to Bateman’s Estate, 21 Dist. R. 475, where a similar question was decided by this court on the same principle.

The exceptions are dismissed and the adjudication is confirmed absolutely


author: Henderson, J.,

text:
    McDermott’s Estate.

      Wills — Codicil—Revocation—Interpretation—Intention of the testator.

    Testator gave legacies of $1000 to each of two hospitals named. He subsequently, by holographic codicil, directed: ‘T wish my executor to see that my wife Anastasia get a competence.” There were further provisions contained in the codicil for the pro rata reduction of charitable bequests, and it expressly revoked “the bequest to St. Josephs Hospital and the same to the German Hospital so that will help out in case the estate would shrink too much:” Held, that the purpose of the codicil was to assure a competence to the widow and to make provision for use of the principal if that was necessary, and the widow now being deceased, and there being a sum in excess of the amount provided for the legacies, the intention of the testator had been carried out without the necessity of a revocation of any particular legacy; hence, the gifts to the hospitals should stand as written in the will.
    Exceptions to adjudication. O. C. Phila. Co., Jan. T., 1912, No. 568.

      Graham & Gilfillan, for exceptions.

      Frederick C. Newbourg, Jr., and Joseph G. Magee, contra.
    July 28, 1922.
   Henderson, J.,

By his will the testator gave legacies of $1000 each to St. Joseph’s Hospital and to the Lankenau (formerly the German) Hospital.

By a holographic codicil he directed as follows (the physical arrangement as made in the original it is attempted to reproduce):

“Codicil to the will of John McDermott I wish by executor to see that my wife Anastasia get a competence out of my estate and if the estate should shrink too much for my executor to sell Mortgages or property to keep up a certain nice income that need not reduce any private bequests but the charitable bequest can be reduced pro rata
“and I hereby revoke the bequest to St. Josephs Hospital and the same to the German Hospital so that will help out in case the estate would shrink too much the papers and everything is in safe and wash stand drawer
“the combination of safe is 4.40s left 2,20s right then a little turn to left and open.”

It is contended by the residuary legatees that the effect of this codicil was to revoke the bequests to these two hospitals. The auditing judge held that the purpose of the codicil was to assure a competence to the widow and make provision for the use of the principal, if that should be necessary, and as the widow is now dead and it had not been found necessary to use any principal for her competence, that the contingency provided for in the codicil fell, and, hence, the condition under which a revocation was to be worked not having arisen, the gifts to these two charities should stand as they were written in the will.

We think the auditing judge was correct in his interpretation, and little need be added to the reasons set out in his adjudication.

This codicil is clumsily phrased and the clauses are inaptly placed. Nevertheless, when the intent is once ascertained, an inapt arrangement of the phrases will not defeat the same.

In addition to the authorities cited by the auditing judge, we call attention to Worst v. De Haven, 262 Pa. 39, wherein it was said: “In obscurely expressed wills, a word or sentence may be transposed in order to effect the apparent intent of the testator;” and therein was cited in support of this principle the cases of Roberjot v. Mazurie, 14 S. & R. 42, and Eckert v. Pennsylvania Trust Co., 212 Pa. 372.

The codicil really contains two conditional revocations, the first relating to all the charitable bequests, and the second relating only to the bequests to these two hospitals. Applying the rule laid down in Worst v. De Haven, we may transpose a portion of the codicil now before us and thereby the better show the apparent intent of the testator. By placing the words “in case the estate should shrink too much” before the words “I hereby revoke,” this portion of the codicil would then read, “in case the estate should shrink too much I hereby revoke the bequest to St. Josephs Hospital and the bequest to the German Hospital so that will help out.”

The widow now being deceased and there being a sum in excess of the amount provided for the legacies, the intention of the testator has been carried out without the necessity of a revocation of any particular legacy.

It is elementary that a will and codicil are to be read together, and the codicil should make no greater change in the provisions oí the will than are absolutely necessary under its language. The widow has had her competence, the fund is more than large enough to pay all the legacies in full, including those now under discussion, and, hence, there has been no shrinkage and no occasion to resort to the contingent provisions of this codicil.

Melville’s Estate, 22 Dist. R. 1029, 245 Pa. 318, is to be distinguished from the instant case, in that the revocation cannot be said to have been for the sole purpose of making the charitable gift. Judge Dallett in his opinion rested on this ground when he said (page 1033): “The revocation cannot be said, therefore, to have been for the sole purpose of making the charitable gift, and, as the heir ‘is not to be disinherited except by express words or by a necessary implication,’ it must stand as a complete revocation.”

The Supreme Court, speaking through Mr. Justice Stewart, also rested on this ground (245 Pa. 322): “What induced the making of the codicil was his discovery that, except as his will was changed, $150,000 of his estate would pass to these appellants under the residuary clause, whereas up to that time he had rested in the belief that whatever amount, if any, would pass under the residuary clause would be an inconsiderable part. So much we may safely conclude from what appears in the will and codicil. The substitution of another by the codicil to succeed to this enlarged residuum was equivalent to a positive expression that those appointed by the will to take should be excluded because of his better understanding of conditions. The language of the codicil makes it clear to our mind that the new disposition made thereby was the result of a predetermination to revoke the old.”

Prevost’s Estate, 264 Pa. 27, is also to be distinguished from the instant ease because, as was pointed out therein by Judge Gest, the possible deficiency had to do, not merely with the pecuniary legacies, but with the residuary estate which was left to testatrix’s sister, the principal object of her bounty. In other words, by cutting down the pecuniary legacies she enlarged the gift to her sister, and, hence, the possible deficiency referred to was not merely a question as to the pecuniary legacies, but also related to the gift of her residuary estate to her sister.

The exceptions are dismissed and the adjudication confirmed absolutely.


author: Thompson, J.,

text:
    Tayntor’s Estate.

      Wills — Codicils—Residuary legatees — Legatees named in codicil but not in will.

    Testatrix having named Dr. H. as one of the legatees in her will and after his death having substituted his widow, by codicil, to take the legacy originally made to him, the widow is entitled to share in the residuary estate designated for distribution “to the legatees” in the will.
    Exceptions to adjudication. O. C. Phila. Co., July T., 1921, No. 479.

      John S. Freeman, for exceptant.
    Dec. 2, 1921.
   Thompson, J.,

Testatrix by her will gave, inter alia, various personal pecuniary legacies and made no disposition of her residuary estate, if any. By her first codicil she directed that if her estate was not sufficient to meet in full all the personal pecuniary legacies therein bequeathed, there should be an abatement in manner as set forth in the codicil, and then further provided as follows:

“But if there be an excess over and above the amount required to pay all in full, I give and bequeath it, with all the rest, residue and remainder of my estate, unto all of such legatees named in my said will, share and share alike, and except so far as it is hereby altered.”

Testatrix made six subsequent codicils to her will, in three of which she increased, in one of which she cut down, and in one of which she revoked legacies to certain legatees named in the will, and in the fourth codicil she substituted Mrs. Hall for her husband, Dr. Hall, who had died, said codicil being as follows:

“. . . In my will I made a bequest to Dr. L. Brewer Hall that if he be living at the time of my death the sum of one hundred dollars. Since then Dr. Hall has died. I request the said one hundred dollars be given to the widow of Dr. Hall, Anna G. Hall, 214 Dickinson Ave., Swarthmore, Pa.”

It will thus be seen that the only person named in the codicils and not named in the will is Mrs. Hall, so that the question arises, there being more than sufficient in testatrix’s estate to pay in full all personal pecuniary legacies in both will and codicils, as to what disposition should be made of the residuary estate. Should it be distributed in accordance with the first codicil to those legatees named in the will, or should Mrs. Hall, named in the fourth codicil, be entitled to participate therein? The auditing judge, on the authority of Cummings’s Estate, 1 Dist. R. 485, held that the testatrix’s residuary estate should be distributed to the pecuniary legatees named in the will and to Mrs. Hall, named in the fourth codicil, to which exceptions have been filed.

In a very carefully considered case, Alsop’s Appeal, 9 Pa. 374, it was held that, though a will and the codicils form but one testament, and speak from the date of the last codicil, yet they constitute distinct instruments, and a bequest of the residue by the will “to the legatees” will be confined to such legatees as are therein named, and to such legatees as are substituted by codicil for some of them. Upon the authority of the last mentioned case, we are of opinion that the auditing judge was correct in his findings, and that Mrs. Hall should participate with those personal pecuniary legatees named in the will in the distribution of testatrix’s residuary estate, and the exceptions filed to said adjudication are, therefore, dismissed and the adjudication is confirmed absolutely.


author: Wickersham, J.,

text:
    Commonwealth ex rel. Fox v. Reynolds.

      Habeas corpus — Restraint—Failure to prove — Costs.
    1. Sabeos corpus cannot be maintained to relieve a minor child from restraint where there is no evidence of restraint and no question of personal liberty is involved.
    2. Where a mother petitions for a writ of habeas corpus to relieve her fifteen-year old daughter from alleged illegal restraint, and the evidence does not show any restraint, but does show, on the contrary, that the child was unwilling to go with her mother, as the defendant had recommended, and further shows that the best interests of the child will be served by allowing her to remain where she is, the petition will be dismissed at the cost of the relator.

      Habeas corpus. C. P. Dauphin Co., Jan. T., 1922, No. 163.

      M. E. Stroup, for relator; George R. Barnett, for defendant.
    Feb. 28, 1922.
   Wickersham, J.,

It is alleged by the relator that she is the mother of Fannie E. Fox, aged fifteen years, who is restrained of her liberty by the above named Arthur G. Reynolds illegally and wrongfully and for no criminal or supposed criminal matter.

This case came on to be heard Feb. 2, 1922, at which time many witnesses were heard, involving the taking of seventy-nine pages of testimony, from which testimony it appeared that the husband of the relator deserted her about fifteen years ago; that prior to the death of the grandmother of the said Fannie E. Fox, which occurred in December, 1921, she lived with her said grandmother; that after the death of her grandmother, the brother of the relator and uncle of the said Fannie E. Fox, herein named as defendant, moved into the house formerly occupied by his mother — the grandmother of said Fannie E. Fox. That some years prior to the death of her mother, the relator left her residence and went to live with her sister on another street in the City of Harrisburg. There was some difficulty about the daughter of the relator going to school, but it appeared that her grandmother kept her out to wait upon her during her last illness; that although all of the witnesses testified that the said Fannie E. Fox was a good girl and a consistent member of the Methodist Church, which church and Sunday school she attended regularly, yet it appeared that the relator had her arrested as an incorrigible, and that she is now under bail as such to appear at the Juvenile Court at its next session.

At the hearing before the alderman in the prosecution by the relator of her daughter for incorrigibility, it appeared the mother did not speak to her daughter, and it also appeared from the testimony she did little or nothing to gain the confidence and affection of her daughter, and she appears to have done some things well calculated to alienate that affection (N. T., pages 55 and 56). We are clearly of the opinion that the best interests of the daughter will be conserved by allowing her to remain where she is, and, therefore, the petition of the relator must be dismissed.

This is a proceeding against Arthur G. Reynolds, the defendant, uncle of Fannie E. Fox, who is charged in the petition of the relator with illegally and wrongfully restraining the said Fannie E. Fox of her liberty. The testimony shows that he recommended she go with her mother, but that the daughter, who is between fifteen and sixteen years of age, who never lived with her mother, and who, it appears, despises the gentleman friend of her mother, refused to go with her, and she still refuses. The purpose of this proceeding is to relieve the said Fannie E. Fox of the restraint of her uncle, so that she can go and live with her mother, but the evidence in this case shows there is no restraint (N. T., pages 41, 42-56). The court will refuse or dismiss a writ where no question of personal liberty is involved: Com. v. The Sheriff, 2 Dist. R. 319. We regard it as very doubtful whether we have the legal authority to compel this child to be returned to her mother, especially as she does not appear to have ever been in the custody of her mother, and does not want to go with her now: Com. v. Robinson, 1 S. & R. 353; In re Habeas Corpus, 9 Luzerne Legal Reg. Reps. 435, 436. We can find no evidence of restraint on the part of the defendant which would justify the issuance of an order in this proceeding: Com. v. Doran, 15 Pa. C. C. Reps. 385.

After considering all the evidence, we are convinced that the relator has not made out a case of restraint of her daughter, Fannie E. Fox, on the part of the defendant, and, therefore, the writ of habeas corpus granted in this case must be and is hereby dismissed, at the cost of the relator.

From William Jenkins Wilcox, Harrisburg, Pa.


author: Bechtel, P. J.,

text:
    Wetzel v. Wetzel.

      Divorce — Weak-minded respondent — Intervention of guardian — Act of May 4, 1921.

    1. Where a guardian is appointed for the respondent, the wife, in a divorce proceeding, such guardian has a right to intervene and protect his ward’s interests.
    2. Where, pending a divorce proceeding in one county, a guardian is appointed by proceedings in another county for the respondent, a weak-minded person, and the libellant appears in such proceedings, he cannot thereafter object to the jurisdiction of the count which appointed the guardian and claim that the latter has no right to intervene in the divorce suit.
    3. If the libellant was prejudiced by the decree appointing the guardian, he had his remedy by appeal.
    4. It seems that a court having jurisdiction of the person of a weak-minded person has jurisdiction to appoint a guardian, although such person has no property within the county.
    Act of May 4, 1321, P. L. 343, considered.
    Rule for, permission to intervene. C. P. Schuylkill Co., May T., 1921, No. 157.

      Edgar W. Downey and C. W. Palmer, for libellant.

      J. M. R. Jermon and M. J. Ryan (of Philadelphia), and Burke & Burke, for petitioner.
    April 3, 1922.
   Bechtel, P. J.,

In this case matters were so proceeded with that a master was duly appointed and two meetings held by him. Whereupon, on July 23, 1921, John Koch, residing at Bristol, Pa., presented his petition, alleging that he was the brother of the respondent, and that respondent was insane, and asking permission of the court to intervene as next friend for the purpose of defending the suit. Upon this petition a rule was granted to show cause why he should not be permitted to intervene. Thereupon an answer was filed by libellant, and the matter was not pressed further.

On Aug. 15, 1921, John Koch filed his petition for the appointment of a guardian for Mary J. Wetzel, a weak-minded person, in the Court of Common Pleas of Bucks County. To this petition William James Wetzel, libellant in the case now before us, filed an answer. A hearing was held, and the court of Bucks County duly adjudicated the said Mary J. Wetzel a weak-minded person in accordance with the provisions of the Act of May 28, 1907, P. L. 292, and appointed John Koch her guardian, who duly qualified. Thereupon the said guardian presented his petition to this court, praying leave to be permitted to intervene in the said divorce proceedings and to defend in behalf of Mary J. Wetzel, who, by reason of her mentality, was and is unable to defend said suit.

To this petition an answer has been filed by William James Wetzel attacking the regularity and legality of the proceedings in the Court of Common Pleas of Bucks County, and alleging want of jurisdiction in said court by reason of the fact that said Mary J. Wetzel did not own or possess any property or real estate. There can be no question that the courts of Bucks County had jurisdiction of the parties, because the residence of Mary J. Wetzel in said county is not denied, and William James Wetzel filed his answer there and submitted himself to the jurisdiction of said court. It is contended that, since the record does not show the ownership of property in Mary Wetzel, the court of Bucks County was without jurisdiction to appoint the said guardian. We are of opinion that we have no right to review the proceedings of the Court of Common Pleas of Bucks County, and while counsel earnestly contend that we are not being asked to review said proceedings, still the effect of his contention would be either that we should treat the proceedings in Bucks County as nugatory and void, or decide that the court had no jurisdiction to make the order which it entered. This is not within our province. If William Wetzel has been prejudiced by said order, or if said court has acted illegally or without jurisdiction, he can appeal from the order entered in said case and have the error corrected by the proper tribunal. We are bound by the adjudication and the appointment of the guardian in Bucks County.

Nor do we feel that there is any merit in the contention that the guardian should not be permitted to intervene or has no legal right to intervene in .these proceedings. The 6th section of the Act of 1907 provides that the guardian so appointed shall have precisely the same powers, and be subject to the same duties, as a committee on lunacy in the State of Pennsylvania. See, also, Act of April 18, 1905, P. L. 211. Counsel contend that the guardian is the guardian of the property only and not the person of the weak-minded individual, and, therefore, that there is no law by which she could present a defence to a divorce proceeding. This position seems to us to be utterly without merit. Surely the Bucks County court have jurisdiction to determine the mentality of people resident within said county. Having done so and appointed a guardian, surely that guardian has the right to intervene and defend one who is unable by the act of God to defend himself. Further than this, the Act of May 4, 1921, P. L. 343, recognizes the right not only of guardians to intervene, but of the next of kin, and provides that this right shall exist in all proceedings in any court in this Commonwealth in which a weak-minded person or lunatic is a party or concerned.

The rule to show cause why John Koch, guardian, should not be permitted to intervene in these proceedings is herewith made absolute and the said John Koch, guardian, is permitted to intervene in this case with same force and effect as if originally served.


author: Berkey, P. J.

text:
    Commonwealth ex rel. Holleran v. Holleran and Beerbower.

      Habeas corpus for custody of child — Extraterritorial effect of decree of court of sister state.

    1. The decree of a court of a sister state, awarding the custody of a child to the father, is not binding upon the court within whose jurisdiction the child was maintained at the time the order of the sister state was made.
    2. A foreign decree of divorce is not res adjudicóla as to the children of the parties to the proceedings in divorce; their interests are always the subject of inquiry by the courts in whose jurisdiction they may be found.
    3. A child is not in any sense the property of the parents or of either of them, but the state in which the child lives has an interest in its welfare and has the sole right to place the child in such environments as promote the best interests of the child.

      Habeas corpus. C. P. Somerset Co., Sept. T., 1921, No. 408.

      P. G. Cober and Boose & Boose, for relator.

      Daryle R. Heckman and Ross R. Scott, for defendants.
   Berkey, P. J.

The relator presented his petition, alleging the respondents restrained John Michael Holleran, aged three and a half years, of his liberty, and, by artifice and force, have carried away the said child from relator’s sister, in whose care and custody he had placed him, and keep possession of the child against the expressed wish and demand of relator, his lawful custodian. Whereupon the court awarded the writ, and upon return thereof, the child was brought into court; the respondents then filed an answer denying (1) the defendant had a legal right to the custody of the child; and (2) that the place where and persons with whom John Michael Holleran was living and stayed, at Connellsville, Pa., was not a proper place for him to be, nor were they fit persons to have the custody and rearing of said child; and that at the time said child was secured by Clara Holleran, his mother, he was found to be in a dirty condition and covered with body lice. Thereupon the court heard the testimony of the parties, and therefrom finds the following

Facts.

1. The relator and Clara Holleran became acquainted some years ago, and at the age of fourteen years she gave birth to Paul Holleran, being relator’s child, and six years thereafter relator married her, from which marriage resulted the child, aged four years, the subject of this suit.

2. The child was brought within Somerset Borough, Somerset County, Pennsylvania, by Yema Beerbower, one of the respondents, about the middle of May, 1921, where he remained in her custody until July 14, 1921, when the relator took him to the City of Connellsville, Payette County, Pennsylvania, where he remained with a bachelor brother and two spinster sisters, living as a family, until Aug. 24, 1921, when the respondents brought him back into the home of Yema Beerbower, within Somerset Borough, Somerset County, Pennsylvania.

3. The relator is a locomotive engineer, running on Somerset and Cambria Branch of the Baltimore & Ohio Railroad, who begot a bastard child upon the woman-child aged fourteen years, now discarded by him on the ground that she has been unfaithful to him since he married her; he has no known place of abode, though he owns a home in Cumberland, Maryland, and no place to keep the child, save with his bachelor brother and spinster sisters.

4. The child’s mother, in a divorce proceeding against her in the Circuit Court of Allegheny County, Maryland, was found guilty of adultery in a decree by said court, Aug. 26, 1921, but divorce refused to the husband because he had condoned the offence; she has no permanent place of abode, but calls Verna Beerbower’s dwelling, her mother’s abode, her home.

5. The Circuit Court of Allegheny County, Maryland, further decreed as follows: “And it is further adjudged, ordered and decreed that the custody of the two minor children of said parties, to wit: Edward Paul Holleran, aged eleven years, and John Michael Holleran, aged three years, is retained by the court, and the court does hereby entrust the guardianship and custody of said children to the plaintiff, Michael Holleran, until the further order of this court.”

6. Verna Beerbower, one of the respondents and maternal grandmother of the child, owns her home in Somerset Borough; keeps a boarding and rooming house principally for railroad employees as a business; she is a woman of good repute, and at numerous times has had the custody of the child and kept him well.

7. The child when taken away from, the home of the relator’s brother and sisters by the respondents was lousy.

8. Neither of the parents of the child are proper persons to have the custody of the child.

Conclusions of law.

1. The Circuit Court of Allegheny County, Maryland, Aug. 26, 1921, did not have jurisdiction of John Michael Holleran to decree the custody of him.

2. The decree of the Circuit Court of Allegheny County, Maryland, has no extraterritorial effect beyond the boundary of the state where it was rendered.

3. In arriving at a conclusion as to the custody of the child, the court will consider first the best interest and permanent welfare of the child.

The relator rests his case upon the decree of the Circuit Court of Allegheny County, Maryland, of Aug. 26, 1921, made in a proceeding in divorce in which Michael Holleran, the father, was the libellant, and Clara Holleran, the mother, was the respondent, which reads:

“It is thereupon, this 26th day of August, 1921, by the Circuit Court for Allegheny County, adjudged, ordered and decreed:

“First. That the decree of divorce is hereby refused.

“Second. That the charge of adultery having been proven against the defendant, the said Michael Holleran is released from the payment of alimony to the defendant, Clara Holleran.

“Third. And it is further adjudged, ordered and decreed that the custody of the two minor children of said parties, to wit, Edward Paul Holleran, aged eleven years, and John Michael Holleran, aged three years, is retained by the court, and the court does hereby entrust the guardianship and custody of said children to the plaintiff, Michael Holleran, until the further order of this court.”

The Maryland Code, under which this decree was made, reads: “And (the court) shall also have power to order and direct who shall have the guardianship and custody of the children, and be charged with their maintenance and support.”

The child was beyond the jurisdiction of the court entering the decree from along the middle of May, 1921, or a period of about one hundred days previous to Aug. 26, 1921. It appears from the decree in the divorce proceedings that the court had jurisdiction of the parties, yet from the evidence in the case it is not clear that either was domiciled in Maryland. The courts uniformly have held that a child is not in any sense the property of the parents, or of either of them, but that the state in which it lives has an interest in its welfare and has the sole right to place the child in such environments as promote the best interests of the child. Courts have repeatedly held that a foreign decree of divorce is not res adjudicada as to the children of the parties to the proceedings in divorce, but that the interests of the children are always the subject of inquiry by the courts in whose jurisdiction they may be found: Kline v. Kline, 57 Iowa, 440, 10 N. W. Repr. 825; Matter of Bort, 37 Am. Rep. 255; De La Montanya v. De La Montanya, Jr., 32 L. R. A. 82; Avery v. Avery, 5 Pac. Repr. 418; In re Alderman, 39 L. R. A. (N. S.) 988, 992; Kentzler v. Kentzler, 28 Pac. Repr. 370; Wilson v. Elliott, 73 S. W. Repr. 946.

The relator contends the Maryland decree is binding on this court. Section 1 of art. IV of the Constitution of the United States provides: “That full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state, and Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.”

The record of the Maryland court was duly authenticated, as provided by Act of Congress, and received in evidence upon the trial.

The evidence in the ease shows that at the time the Maryland decree was made the child had been within the jurisdiction of the courts of Pennsylvania more than three months. Such evidence was clearly admissible to show the court of the sister state was without jurisdiction to enter the decree as to the custody of this child: Noble v. Thompson Oil Co., 79 Pa. 354; Guthrie v. Lowry, 84 Pa. 533; Price v. Schaeffer, 161 Pa. 530; Hughes v. Schreiner, 202 Pa. 488; Stilwell v. Smith, 219 Pa. 36.

The undisputed evidence in the case showing the child was in Pennsylvania when the decree of the Circuit Court of Allegheny County, Maryland, was made, that court did not have jurisdiction to enter a decree binding upon this court.

Having arrived at the conclusion this court has jurisdiction to make a decree upon the established facts revealed by the testimony in the case, and authority by virtue of section 2 of the Act of the General Assembly approved June 26, 1895, the following decree is entered: See, also, Com. ex rel. Hart v. Hart, 8 W. N. C. 156; Com. ex rel. McDonald v. McDonald, 20 Dist. R. 1071:

Decree.

Now, Oct. 24, 1921, after a full hearing of the parties and on consideration of the testimony taken in the above entitled matter, and the argument of counsel, it is ordered and decreed that the child, John Michael Holleran, be remanded into the custody of Mrs. Verna Beerbower, the maternal grandmother, and there to remain until the further order of the court.

The writ of habeas corpus to stand over as a pending writ, subject to such further action as may hereafter be adjudged by the court to be right and proper in relation to the custody of said child.

The record costs of this proceeding to be paid by the relator.


author: Miller, J.,

text:
    Godshalk v. Richardson.

      Accord and satisfaction — Payment—Acceptance of smaller sum — Disputed counter-claim.

    1. Where a claim is unliquidated or in dispute, and the creditor accepts a less sum, it operates as an accord and satisfaction.
    2. An undisputed claim due a creditor is rendered unliquidated by the assertion by the debtor of a disputed counter-claim or set-off.
    3. Where plaintiff sends to defendant a bill for services, the amount of which is undisputed, and the defendant sends his check for a smaller amount, having written upon its face “in full payment of all claims to date,” accompanied by a statement that he took credit for the difference as commissions for sale of real estate owed to him by plaintiff, and the plaintiff accepts and uses the check, although denying defendant’s claim for commissions, the transaction is an accord and satisfaction, and plaintiff cannot recover the difference.
    Motion for judgment n. o. v. C. P. Montgomery Co., June T., 1920, No. 158.

      Samuel D. Conner, for plaintiff.

      Evans, High, Dettra & Swartz, for defendant.
    Jan. 9, 1922.
   Miller, J.,

The plaintiff, who is a carpenter, and the defendant, who is a real estate broker, had for a long time had business relations, and, prior to July 15, 1919, the former rendered to the latter a bill for work and labor done, amounting to a total of $243.05. It was agreed at the trial that the amount of this bill was correct, that the work had been done, and that the prices charged for it were proper. Standing alone, it was a presently due and unpaid, liquidated and undisputed claim.

It seems, however, that the defendant claimed, but plaintiff denied, that the latter was at the time indebted to him for commissions for selling a house. On July 15, 1919, he, therefore, took the bill in question, wrote on it below its total, “Credit, sale of Columbia Avenue property, $100; balance, $143.05,” and then mailed it with his cheek for this balance, having written upon its face “in full payment for all claims to date,” to the plaintiff, who deposited and collected the check through bank on July 17th. On the next day, after its proceeds were in his possession, the plaintiff wrote to the defendant, denying the indebtedness of $100, and stating that he was accepting the cheek on account. He, at the same time, returned the bill with the notation of the defendant, as above set forth, crossed out by himself and with his own memorandum added to it, “July 18th, on account by check, $143.05; balance, $100,” and demanded payment of this balance. Such payment was refused, whereupon this suit for its recovery was brought. The trial was confined to the disputed question of fact of whether the plaintiff had owed the defendant the $100 for his services as a broker, and the verdict was in favor of the plaintiff for the full amount of his claim. We refused defendant’s motion for a compulsory non-suit and request for binding instructions in order that the question of law involved in the case might, on a motion for judgment non obstante veredicto, if the verdict was for the plaintiff, receive more mature consideration than was possible during the trial.

The real defence was, of course, that the plaintiff’s retention and use of the check in question after such positive notice that it was sent in full payment of all claims to date constituted an accord and satisfaction, whereby his claim for the balance of his account was barred. Such would undoubtedly have been the case had plaintiff’s claim been disputed, but it was not. As we view it, the exact question of law on which the case turns is, therefore, whether or not the defendant’s disputed set-off or counter-claim, having its origin, as is the case, in another transaction, itself made plaintiff’s account such an unliqui-dated one as to be the subject-matter of an accord and satisfaction.

It is only in the rarest of cases, where the facts are so exceptional there can be no doubt of the intention of the parties, that the payment of a portion of an existing debt can work the legal satisfaction and extinguishment of the whole of the debt: Barry v. Caplin, 73 Pa. Superior Ct. 487. The debt must be unliquidated and disputed before it can have that effect.

1 Ruling Case Law, 198, relying on Tanner v. Merrill, 108 Mich. 58; 65 N. W. Repr. 664, declares that a dispute as to the right to a set-off or counterclaim against an otherwise undisputed claim has properly been held to render the claim, as a whole, a disputed claim, as the claim should be treated as a single claim, consisting of the undisputed part and the set-off or counterclaim. Also, see Clark v. Summerfield Co., 40 R. I. 254; 100 Atl. Repr. 499, and 1 Corpus Juris, 556, § 78.

It is true that there is a technical difference between such a case and one of a controversy as to the amount due, but the principle which governs them is the same. Whatever may be the ground of the dispute, the fact remains that there is one: Hull v. Johnson et al., 46 Atl. Repr. 182. Moreover, until the amount of the counter-claim is determined, it is uncertain what the defendant’s debt to the plaintiff is: Stanley-Thompson Liquor Co. v. Southern Colorado Mer. Co. (Colo.), 178 Pac. Repr. 577, 4 A. L. R. 471.

Many of the cases bearing on this question are collected in the note to the last-cited case as it is to be found reported in 4 A. L. R. 471. It is there declared that, by the great weight of authority, an undisputed claim due a creditor is rendered unliquidated by the assertion by the debtor of a disputed counter-claim or set-off, and suggested as a reason that such is the law, that “the decisions on this point may have been influenced, to some extent at least, by dissatisfaction with the general rule that part payment of a liquidated and undisputed indebtedness furnishes no consideration for the release of the remainder of the indebtedness and the disposition to limit that rule as narrowly as possible.”

There is, however, respectable authority which is squarely in conflict with the rule just cited (1 C. J. 556, § 78; 4 A. L. R. 474), but, as stated, the great weight of authority outside of our own State gives it support.

In quite a number of our own cases it is to be observed that the plaintiff’s account was not in dispute, while the set-off claimed by the defendant was. And all seem to have been disposed of as though it were conceded that this situation gave rise to a disputed claim within the operation of the accord and satisfaction principle. See West Point Cotton Mills v. Blythe, 29 Pa. Superior Ct. 642; P., B. & W. R. R. Co. v. Walker, 45 Pa. Superior Ct. 524, and Barry v. Caplin, 73 Pa. Superior Ct. 487.

We hold, therefore, that, although the amount of the plaintiff’s bill was not in controversy, the fact that, at the time when defendant sent him the check for $143.05, the latter’s deducted counter-claim or set-off was in dispute, in that the plaintiff denied liability for it, rendered the plaintiff’s claim of $243.05 unliquidated within the contemplation of the law.

And the rule that the debtor’s disputed counter-claim makes the creditor’s undisputed claim unliquidated and the subject of an accord and satisfaction is, in our opinion, not affected by the fact that the counter-claim does not grow out of the same transaction which gave rise to the plaintiff’s claim: Stanley-Thompson Liquor Co. v. Southern Colorado Mer. Co. (Colo.), 178 Pac. Repr. 577. We are aware that Cartan & Jeffrey v. Wm. Thackaberry Co. (Iowa), 117 N. W. Repr. 953, is directly to the contrary, and observe that the opinion in neither case contains any citation of authority to support it. We base our opinion on this branch of the ease, at least to some extent, on the fact that, of the Pennsylvania cases, in West Point Cotton Mills v. Blythe, 29 Pa. Superior Ct. 642, the counter-claim seems to have grown out of a transaction different from that on which the plaintiff’s claim was based, and the fact is not even mentioned in the opinion; and in P., B. & W. R. R. Co. v. Walker, 45 Pa. Superior Ct. 524, such was undoubtedly the case, but the plaintiff made no point of it, and the question was not regarded as of sufficient importance to receive consideration.

Moreover, there does not appear to be any reason upon which to base the limitation of the application of the rule to be found in the Iowa case. If the rule itself is intended to serve as but a convenient avenue of escape from the hardship of the principle that part payment of a liquidated debt furnishes no consideration for the release of the remainder, it is not at once apparent why the counter-claim need be confined to the same transaction. And this is especially true where such counter-claim does not consist of damages ex delicto, or even arising out of breach of contract, but, as is the case here, it does consist of a matter which could have been set up by the defendant in a suit by the plaintiff on his claim.

Plaintiff’s claim was, therefore, unliquidated. It is settled that where a claim is unliquidated or in dispute, payment and acceptance of a less sum than claimed, in satisfaction, operates as an accord and satisfaction (1 Corpus Juris, 551, § 71), because it is the right of one paying money to direct its appropriation and to make a payment conditional on the recognition of a claim for set-off: Bernstein v. Hirsch, 33 Pa. Superior Ct. 87, 89; Washington Natural Gas Co. v. Johnson, 123 Pa. 576, 593.

In order, however, to constitute an accord and satisfaction, it is necessary that the money should be offered in full satisfaction of the demand, and be accompanied by such acts and declarations as amount to a condition that the money, if accepted, is accepted in satisfaction; and it must be such that the party to whom it is offered is bound to understand therefrom that, if he takes it, he takes it subject to such conditions: Bernstein v. Hirsch, 33 Pa. Superior Ct. 87; Society, &c., v. Loeb et al., 239 Pa. 264.

And if one of the parties to a contract, where the amount has been liquidated, wishes to abate his claim against the creditor, it must be shown the creditor understood, or should have understood, that he was doing so when he received the consideration named: Dillon’s Estate, 269 Pa. 234, 243. It then becomes the plain duty of the creditor to accept the check for the purpose for which it was offered or to return it: Washington Natural Gas Co. v. Johnson, 123 Pa. 576.

It remains only to apply these principles of law to the facts before us. The bill, with the deduction noted on it, was sent to the plaintiff, together with the check for the balance, marked “in full payment for all claims to date.” The notice that the payment was intended to be in full was positive and clear. It then became the plain duty of the plaintiff to accept the check for the purpose for which it was offered or to return it.' He elected to do the former, kept the check and collected it through bank. This all was done before the letter of July 18th was written.

It was then, and is now, too late to escape the effect of his own action. The accord had been fully executed. It had been followed by satisfaction. Action on the original claim was thereby barred.

And now, Jan. 9, 1922, the motion is entertained and, for the reasons stated, is allowed, and the prothonotary is ordered to enter judgment in favor of the defendant and against the plaintiff non obstante veredicto.


author: McKeen, J.

text:
    Primavera v. Jennings.

      Practice — Discharge from arrest — Act of June 1, 1915.

    Under the provisions of the Act of June 1, 1915, P. L. 704, the court is given discretionary power to hold or discharge from arrest a defendant in an action, of trespass if satisfied that all the provisions of the act have been complied with by him.
    Rule to show cause why defendant should not be discharged from arrest on a capias ad satisfaciendum sur judgment on a verdict. C. P. Northampton Co., Feb. T., 1920, Nos. 27 and 28.

      Smith, Paff and Laub, for plaintiff; Everett Kent, for defendant.
   McKeen, J.

This is a rule to show cause why the defendant in the above-stated case should not be discharged from arrest on a capias ad satisfaciendum issued sur judgment on a verdict rendered in favor of the plaintiff and against the defendant in an action of trespass.

The proceeding is brought under the provisions of the Act of June 1, 1915, P. L. 704, entitled “An act providing for the discharge of persons arrested or held on process issued on a judgment obtained in civil actions.” In accordance with the provisions of the act, notice was given to plaintiff and the other creditors of defendant. At the hearing in open court, it appeared defendant was the owner of household goods to the value of $50 and was unable to pay the judgment. It further appeared that about April 1, 1919, defendant entered into partnership with Walter Hoffman in a garage business, which was unsuccessful and terminated in September, 1919. The defendant was the owner of an automobile, which he transferred to his partner subsequent to the verdict rendered in the above-stated case, as a contribution towards his share of the partnership indebtedness. The plaintiff contends that defendant is not entitled to discharge, for the reason that the automobile was transferred with intent to avoid payment of the judgment, which is not sustained by the evidence. The 4th section of the act provides: “Upon the hearing of the rule the petitioner shall be required to answer all questions put to him, and shall produce all books and papers required of him, and if it shall appear to the court that the petitioner is without means or property with which to pay the judgment, and that he has not secreted or assigned any of his property so as to avoid the payment of the judgment, the court may discharge him from arrest. . . .” Under this phraseology the court is given discretionary power to hold or discharge if satisfied that all of the provisions of the act have been complied with on the part of the defendant. While mere compliance with the provisions of the act would not ipso facto entitle the defendant to a discharge (De Many v. Wainer, 25 Dist. R. 687), yet, under the circumstances of the present case, we would not feel warranted in requiring the defendant to surrender himself into custody.

And now, Dec. 5,1921, rule absolute.

From Henry D. Maxwell, Easton, Pa.


author: Newcomb, J.,

text:
    Loring v. Hartman.

      Justice of the peace — Appeal—Justice as agent of appellant — Forwarding transcript — Use of mails.

    1. An arrangement with a justice of the peace by a defendant in a judgment for the former to send the transcript to him for purposes of appeal constitutes the justice his agent, and if the justice forwards the transcript by mail and it is never received, the defendant cannot perfect his appeal after the statutory period has elapsed.
    2. The procedure on appeal is strictly statutory, and the court is without power to enlarge the time for action prescribed by the statute.
    Motion for leave to perfect appeal nunc pro tunc. C. P. Lackawanna Co., Jan. T., 1922, No. 254.

      B. W. Bymer and C. B. Comegys, for defendant.
    Dec. 8, 1921.
   Newcomb, J.,

July 1st, this year, defendant appealed in due form from the judgment of a magistrate. The appeal should have been perfected by transcript filed not later than Sept. 19th, the first day of the then next term of this court. But that was not done, and the omission is now accounted for, by appellant’s petition of Nov. 9th, as due to miscarriage by mail. It is alleged that, in accordance with their arrangement, the magistrate mailed the transcript to appellant’s address on Aug. 5th, but it was never received. That is the ground assigned for relief.

Manifestly it is of no avail. The arrangement with the magistrate was entered into at appellant’s risk. He is chargeable with knowledge of the time allowed by law for filing the transcript, and, therefore, it was for him to see that it was sent forward in due season, as he had simply made the magistrate his agent for that purpose.

What is more, the procedure is strictly statutory and the court is without power to enlarge the time for action prescribed by the statute.

It follows that the relief asked for is impracticable, and for that reason the rule to show cause is discharged. From William A. Wilcox, Scranton, Fa.


author: Potter, P. J.,

text:
    Bolig’s Case.

      Lunacy — Weak-minded person — Evidence—Wheedling money out of old woman.

    A guardian will not be appointed for an old woman on the ground that she is weak-minded, where she is normal in every respect excepting infirmities incident to her advanced age. The fact that she permits two men to live in her house and off of her, one of whom is her grandson, who wheedles money out of her, and the other is not related, is not in itself sufficient to justify the appointment of a guardian.
    Petition for the appointment of a guardian for a woman alleged to be weak-minded. C. P. Snyder Co., June T., 1922.

      J. G. Weiser, for petitioner; A. F. Gilbert, for respondent.
    May 11, 1922.
   Potter, P. J.,

This is a petition on the part of Hannah Snyder and Susie E. Cosgrove, daughters of Rebecca Bolig, to the end that their mother may be declared a person of weak mind, and that a guardian may he appointed to care for her estate.

The case was heard in open court on Tuesday, April 25th, before the three judges. Evidence was produced on the part of the petitioners and on the part of one Samuel Shambach, a grandson, who resisted the proceedings.

The evidence on the part of the petitioners was in substance as follows : That Rebecca Bolig is a woman ninety years old; that she resides in Centreville, Snyder County, Pennsylvania; that she is the owner of a town house and lot worth $600 or $700; that she has household furniture of the probable value of $100; that she draws a widow’s pension of $30 a month; that one Robert Erdley looks after her pension for her, and she gets her pension money from him; that Samuel Shambach and one Keister live with her, Shambach being about twenty-one years old and Keister being in the neighborhood of forty years of age; that Shambach is her grandson, but Keister is no relative; that these two men have been making their home with her and her husband, who is dead, Shambach from infancy and Keister for many years; that Rebecca Bolig converses intelligently, knows the days of the week, the hours of the clock, can count money and knows the value of different denominations, and apparently is well and does her own housework the most of the time.

The proof on the part of the respondent went to prove that she is not weak-minded, that she does her own business successfully and can look after her own affairs, and that she is normal in every respect, excepting the infirmities incident to her advanced age. This was proven by four neighbors, who are disinterested.

There was proof offered showing, or tending to show, that Shambach, although well and healthy, was getting money from Rebecca Bolig by threats and persuasion. We are inclined to, at least in part, believe this testimony; but unless this old lady is proven to the satisfaction of the court to be weak-minded, so weak-minded that she is liable to become the victim of designing persons and dissipate her property, we are powerless to take any steps in the matter.

One of the safeguards of American citizenship is the disposition of one’s property as the owner may see fit, and unless some disability on the part of the owner of the property is satisfactorily shown, he or she may dispose of property in any way seen fit so to do.

We do not think the evidence in this case, as presented to the court, shows such a weakness in mind as would justify the appointment of a guardian, although we feel very much like so doing, had we the evidence before us to justify such action.

We feel like saying, however, that if any further complaints are made on the part of any one respecting the wheedling of money out of this old lady by Shambach or any other person, we will feel like stretching a point of law in order to protect her. These two able-bodied men should go to work and support her, not she to support them.

This case is an exact counterpart of the Gift case, decided in this court over ten years ago.

And now, to wit, May 11, 1922, for the reasons given in this opinion, the petition is dismissed, with full liberty to again petition the court if the present state of affairs continues.

From Charles P. Ulrich, Selins Grove; Pa.


author: Corbet, P. J.,

text:
    August et al. v. Smith, Administratrix.

      Contract — Sales—Recovery of purchase money — Statement of claim — Act of May 19, 1915.

    In an action to recover hack money paid as the purchase price of a carload of coal alleged to be unmerchantable, a statutory demurrer will be sustained where It appears from the statement of claim that the coal was sold f. o. b. at the mines, that the purchaser had ample opportunity to inspect it, but failed to do so, and the statement of claim does not aver any breach of warranty as to quality, or set forth the matters required by section 69, clause 3, of the Sales Act of May 19, 1915, P. L. 543.
    Statutory demurrer. C. P. Jefferson Co., April T., 1921, No. 71.

      Pentz & Pentz, for plaintiffs.

      Brown & Means and M. M. Davis, for defendant.
    Dec. 5, 1921.
   Corbet, P. J.,

The determination of the questions raised depends on what is set forth in the statement of claim.

Reason (a). We agree that the averment referred to is immaterial, and, therefore, it is without effect.

Reason (h). “Quality of goods,” as defined by the Sales Act of May 19, 1915, P. L. 543 (565), “includes their state or condition.” Section 15, clause 2, of the act (P. L. 547), provides that “where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality.” The statement of claim does not specifically, nor by necessary implication, aver as a cause of action the existence or breach of any such implied warranty, nor the existence and breach of any other warranty, either express or implied.

Reason (c). This brings us to a consideration of the specific matter alleged to have been breached, and the manner of the alleged breach. Plaintiffs allege that on Oct. 15, 1920, they purchased from defendants’ intestate, on and by written order, a carload of merchantable and marketable coal, which was subject to inspection and rejection. Looking, then, to the terms of the sale as disclosed by the order (and that the terms of the latter were in any way added to, altered, changed or enlarged is not in any way averred, by reason whereof we are to look to the order alone for the terms of the purchase), we find its substance to be: “Please make the following shipment, viz.: B & M (Boston & Maine) 1 car, size R M (Run of Mine) Price $7.85, F. O. B. (Free on Board) mines, Consigned to -, Destination -, Subject to inspection and rejection. Remarks: Filled by car P. R. R. 195834.” Nothing is therein said that the coal should be merchantable and marketable, nor is any place designated as “the point of inspection.” The place of delivery is clearly indicated to be on board the car at seller’s mines.

Plaintiffs further allege that the carload of coal was shipped in Pennsylvania Railroad Car No. 195834, that the quantity was seventy-eight tons, three hundred weight, for which they were to pay $7.85 per ton, at which price the car of coal was of the value of $613.48, and that, being spot coal, it was to be paid for upon consignment by the seller to the consignee directed by the plaintiffs, the Boston & Maine Railroad, and delivery to the plaintiffs of bill of lading of the Pennsylvania Railroad showing said consignment; that said coal was consigned by the seller on said order, and that plaintiffs did not see the coal or have anything to do with the loading of it. And the plaintiffs paid the seller, for it is necessarily implied from the fact that plaintiffs are seeking to recover the price paid. Thus plaintiffs clearly show that the seller delivered the coal to them (first paragraph, section 46, of the Sales Act of May 19, 1915, P. L. 543, 556), that the property in it passed to them (section 19, rule 4, clause 2, of the Sales Act; also same section, rule 3, clause 2, paragraph (a), that they accepted it (section 48 of the act), and that they paid the seller for it.

What of the notation on the order, “Subject to inspection and rejection?” Plaintiffs aver that on account of the congested condition of traffic on the various railroads over which the coal had to travel to reach destination, it did not arrive at the (wholly undesignated and unnamed) point of inspection until Dec. 6, 1920, at which time it was duly inspected (where and by whom?) and found to be unmerchantable and unmarketable and not fit for use, of which fact plaintiffs notified the seller upon the refusal of said car of coal (by whom?), and notified her that if she did not take said coal over and dispose of it, they would be compelled to sell it for the best price they could obtain for it, and, upon the seller receiving said notice, she refused to have anything to do with the carload of coal, and notified the plaintiffs it was their property and at their disposal. Whereupon they, the plaintiffs, were compelled to sell it in the market at the best price they could obtain, and it did not bring more than sufficient to pay freight and demurrage charges, whereby they lost the entire amount paid by them to the seller for the coal.

It is provided in the Sales Act, section 69, clause 3 (P. L. 563) : “Where the goods have been delivered to the buyer, he cannot rescind the sale if he knew of the breach of warranty when he accepted the goods, or if he fails to notify the seller within a reasonable time of the election to rescind, or if he fails to return, or to offer to return, the goods to the seller in substantially as good condition as they were in at the time the property was transferred to the buyer.”

Compliance with these requirements is not averred by the plaintiffs.

Plaintiffs, at the time of the transaction, were engaged in buying and selling coal at Brockwayville, Jefferson County, Pennsylvania, and the seller was living and doing business at Reynoldsville, in the same county, places fifteen to sixteen miles apart, and plaintiffs had a reasonable opportunity, had they so desired, of examining or inspecting and rejecting the coal before they accepted and paid for it and directed it to be shipped for them to their consignee, the Boston & Maine Railroad, with which the seller had nothing whatever to do. They do not aver they did not have such opportunity, but merely say they “did not see said coal or have anything to do with the loading of the same, hut purchased the same from the defendant upon said order, . . . giving directions for the shipment thereof to the Boston & Maine Railroad, which said coal was consigned by the defendant on said order.”

From what has been said, it is not deemed necessary to specifically consider reasons (d) and (e).

The conclusion of the court, upon a careful consideration of the whole matter, is that the plaintiffs have not set forth a good and sufficient cause of action, and that judgment should be entered in favor of the defendant upon the questions of law raised, by her affidavit of defence.

And now, Dec. 5,1921, after hearing and due consideration of the questions of law raised in the affidavit of defence, in the opinion of the court, the decision of such questions of law disposes of the whole of the claim, and judgment is now entered for the defendant.

From Raymond E. Brown, Brookville, Pa.


author: Landis, P. J.,

text:
    Commonwealth v. Thalheimer.

      Impersonating officer — Act of May 5,1897.

    Under the Act of May 5, 1897, P. L. 39, an Indictment will not lie for impersonating a “revenue officer.” This act applies only to officers of the State or a division thereof.
    Demurrer. Indictment for impersonating officer. Q. S. Lancaster Co., Jan. Sess., 1922, No. 9.

      John M. Groff, for demurrer.

      William C. Rehm, District Attorney, contra.
    March 25, 1922.
   Landis, P. J.,

The indictment in this case charges that, on or about Sept. 21, 1921, Emanuel Thalheimer “did unlawfully, falsely and deceitfully represent himself to be a revenue officer.” The demurrer is based upon the ground that the charge does not fall within the provisions of the Act of Assembly punishing such persons as represent themselves to be officers of the Commonwealth or a division thereof.

The Act of May 5, 1897, P. L. 39, provides that, “on and after the passage of this act, every person within the Commonwealth of Pennsylvania who falsely represents himself to be, or who falsely assumes to act as, a detective, or any elective or appointive officer of the Commonwealth of Pennsylvania, or of any county, municipality, city, borough, township, district or ward within the Commonwealth of Pennsylvania, shall be guilty of a misdemeanor.” A revenue officer is neither a detective nor an elective or appointive officer of the State or any division of the State, and he does not fall within the words of this act. A somewhat similar case arose in Lehigh County. There the defendant was indicted under this same act for representing himself as a census enumerator. Trexler, P. J., held that, as penal statutes are to be construed strictly, the words “elective or appointive,” as used in the statute, indicated that actual existing officers of the State were in the minds of the legislators when they passed the act, and judgment was arrested. See Com. v. Kinney, 3 Lehigh L. J. 178. The same principle applies here.

The demurrer is sustained and the indictment is set aside.

Demurrer sustained.

From George Ross Eshleman, Lancaster, Pa.


text:
    Swift’s Estate.

      Wills — Construction—Failure of issue — Trusts and trustees.

    Where a testator gives the residue of his estate in trust for two daughters for life, with the same provisions as to the two trusts, and with complicated directions regulating the descent until final failure of issue in each line, the court, in distributing the estate on final failure in the line of one of the sisters to the descendants of the other sister, will construe a reference to “uncles and aunts” in the trust which failed as limited to the line in such trust, and not applicable to the second trust.
    Exceptions to adjudication. O. C. Phila. Co., Oct. T., 1883, No. 359.

      Thomas Stokes (with him Pepper, Bodine, Stokes & Schoch), for exceptions.

      Hoivard H. Yocum, contra.
    Dec. 8, 1927.
   Henderson, J.,

This will contains a wealth of verbiage, the essential clauses of which, however, can be readily set apart and those in dispute balanced one against the other.

The testator was survived by two daughters, and he divided his estate in two parts, with similar trusts for each and her respective descendants.

We have before us the account in the trust for Mrs. Balch, who was survived by three children, Emily, Edwin S. and Thomas Willing, dying in the order named, and none of whom left descendants.

The other daughter, Mary S. Thorne, is deceased, and she is survived by two children, Eliza W. Train and Scharlie Fane, and three grandchildren, Charles Willing Brown, Jr., the son of Charles Willing Brown, and Joseph S. Brown, Jr., and Farley B. Ransom, the children of Joseph S. Brown.

Mrs. Balch’s line being extinct, the Auditing Judge awarded her trust fund to the descendants of the other daughter, Mrs. Thorne; the shares of her grandchildren, the great-grandchildren of the testator, being awarded absolutely, and those to her children, the grandchildren of the testator, being awarded in trust. The latter except, claiming their shares should have been awarded to them absolutely under another clause of the will.

In brief, the will directs that upon the death of Mrs. Balch her share shall continue in trust for her children and their descendants born in the lifetime of the testator, with a further provision for those born after his death. And further, upon the death of a child without issue, “then to his or her brothers & sisters, . . . and the descendants then living of any such brothers and sisters then deceased, if any such there be, or if there be none, then to his or her uncles and aunts and the descendants then living of any such uncles and aunts, then deceased per stirpes, if any such there be. . . .” This is the first of the opposing clauses.

The will then continues, “and if none then over as hereinafter directed in case of like failure of & concerning the shares of my said daughter’s children, and descendants, such as are not in existence at my decease. . . .”

The provision therein alluded to as “hereinafter directed” is as follows: “. . . then in trust to pay over, assign and convey the principal of said shares to such persons as shall at the time be entitled to the other moiety of my residuary estate hereinafter directed to be retained, and held in trust to be held for like estate and remainders, upon similar trusts and powers as are hereinafter directed concerning the same, provided however in all the cases aforesaid, wherever any sub-share of this moiety shall in case of the death of any allottee, under any of the foregoing limitations fall to any person who shall at the time be entitled as cestui que trust, to an original share of said moiety then actually held in trust, for him or her, then such new or accrued share notwithstanding any previous direction of payment to him or her shall not be paid to him or her directly, but shall be held by the said Company, their successors and assigns, in trust for such distributee, with like powers, for the same estate, subject to the same directions and limitations as to the payment of the income, with remainders over, and upon all the trusts, contingencies, limitations, provisos and restrictions imposed on his or her said original share, which passed on the decease of my said daughter with like force and effect, as if such accretion had formed a part thereof from the beginning.”

This is the other clause, and our task is to interpret and reconcile them. We cannot read these provisions and the will as an entirety without being impressed with the thought that the testator in the earlier provision was endeavoring to provide for every contingency which might happen down to the extinction of the Balch line; and in the later provision for the disposition of the Balch moiety in that event.

The exceptants urge that the first quoted clause makes a gift, upon the extinction of the Balch line, to the uncles (there were no uncles) and aunts of the Balch children and their descendants. This construction would give this moiety to these exceptants, the descendants of Mrs. Thorne, absolutely. If this construction is sound, then the gift over, on the extinction of the Balch line, to those entitled to the other moiety is wholly unnecessary and meaningless.

We are of opinion that when he spoke of aunts in the first clause dealing with the extinction of the Balch line, he meant aunts within that line; that is, aunts of great-grandchildren; and it was his intent, upon the extinction of the Balch line, that that moiety should pass to those entitled to the other moiety “and held in trust to be held for like estate and remainders. .'. .”

This interpretation has the merit of preserving both clauses, assigning a reasonable.meaning to each, rather than wholly discarding the later provision.

The exceptions are dismissed and the adjudication is confirmed absolutely.