author: Sayers, P. J.,

text:
    Phillips’s Estate.
    No. 2.

      Executors and administrators — Revocation of letters of administration— Jurisdiction of register of wills — Caveat—Act of June 7,1917.

    1. Where a caveat is filed by a younger son against the granting of letters of administration to the oldest son of a decedent, the caroeat, under the Act of June 7, 1917, P. L. 415, operates as a stay against the oldest son for ten full days after it is filed. '
    2. The cmeat arrests the proceedings until the truth of the facts alleged can be determined, and it enures to the benefit of all parties interested in the subject.
    3. Until the ten days have expired, it is improper and illegal to issue letters to the younger son without giving the oldest son a chance to be heard.
    4. If such letters have been issued, it was an improvident action, and the register of wills has jurisdiction to revoke them.
    5. The register of wills is not restricted in his power to revoke letters of administration to the cases of where letters have been issued to one not next of kin and where a will has been discovered and probated, as provided by the Act of June 7, 1917, P. L. 415.

      6. While the maxim “en>prefsio uwirn est e&atmsio altertasT may be applied to such a statute as the Act of 1917, it should be applied only as a means of discovering the legislative intent and should never be permitted to defeat the plainly-indicated purpose of the legislature.
    7. The prior law and the decisions of the courts indicate that the Act of 1917 was not intended to restrict the register’s power to revoke merely to the cases mentioned in the act.
    8. An application to revoke letters of administration should be made to the register of wills.
    9. If the register finds that he has improvidently issued the letters, he has jurisdiction to revoke them.
    10. Where the register, on an application to revoke letters, is presented with a paper on the construction of which he is doubtful, he has power to certify the entire record to the Orphans' Court as a disputable and difficult matter for its determination.

      Partition — Assignment of expectancy — Release of claim — Evidence—Witnesses' — Declarations—Act of May 23,1887.

    11. Where a writing delivered by a son to his mother is alleged to be an assignment of his expectancy in her estate, but is claimed by him to be merely a release to her of what she owed him, and the paper itself is ambiguous on its face, the testimony of witnesses and the declarations of the mother herself are admissible in evidence in partition proceedings after the mother’s death to show that it was the understanding of both parties that the paper was a mere release to the mother of what she owed him, and not an assignment of his interest in her estate if she died intestate.
    12. In such case, the son was a competent witness, inasmuch as he was not a surviving party to the thing or contract in action within the prohibition of clause (e) of section 5 of the Act of May 23, 1887, P. L. 158.
    13. The declarations of the decedent were also admissible, inasmuch as the rule excluding hearsay evidence does not apply to oral or written declarations of deceased persons made against their interest.
    14. The assignment of an expectancy in an estate of a living person may be enforced as an executory agreement to convey, but such assignment must be sustained by a valuable and not merely a good consideration.
    15. The consideration of the sum of $1 is insufficient, and especially is this so where the enforcement of the assignment would violate the presumption in favor of the rule of equality among children.
    Appeal from an order of Register of Wills revoking letters of administration to George W. Phillips. O. C. Greene Co., June T., 1926, No. 34.

      Scott & Hook, for Curl H. Phillips;

      Montgomery & Waychoff, for George W. Phillips.
    Oct. 31, 1927.
   Sayers, P. J.,

This is an appeal by George W. Phillips from the decree of the register of wills revoking letters of administration.

Facts.

Isabella Phillips died intestate Dec. 28, 1925, leaving to survive her two sons, Curl H. Phillips and George W. Phillips, who were all her heirs-at-law. She died seized of a house and lot in the Borough of Carmichaels, fronting 100 feet on Market Street and extending back along Greene Street 150 feet, worth about $3000, and had money to the amount of $9685.08 and household goods worth $244.45. It was supposed by her heirs and associates that she had about $3000 in money and household goods when she died, and the additional money items, increasing said amount to $9685.08, were discovered when her estate was appraised and after letters were originally granted to George W. Phillips.

At the time of decedent’s death, George W. Phillips was fifty-five years of age and Curl H. Phillips was fifty-seven years old. They were sons of the decedent and John W. Phillips, her husband, who died in 1901 and who devised the house and lot of which decedent died seized to her, and it appears that he did not bequeath anything to his two sons above named, except to each the sum of $1.

Shortly after his mother’s death, Curl H. Phillips, the older son, came to Waynesburg to take out letters on her estate and went to the register of wills’ office and found that George W. Phillips had, on Jan. 4, 1926, lodged a caveat against the granting of letters to him, the said Curl H. Phillips, or any other person, until his right thereto be tried and determined by the proper tribunal, in due form, according to law.

Seven days after George W. Phillips had filed his caveat, to wit, on Jan. 11, 1926, he and his attorney, L. W. Sayers, appeared before the deputy register, Arleigh L. Varner, and filed a petition and requested that letters be granted to George W. Phillips, and it was there represented, or had been prior thereto represented, that Curl H. Phillips was a drunkard and unfit to administer his mother’s estate and had no interest in her estate by reason of a certain paper, called a release or assignment, which he had executed and delivered to his mother on Oct. 26, 1907, a copy of which is as follows:

Exhibit “A.”
“Carmichaels, Pa., Oct. 26, 1907.
“For and in consideration of the sum of one dollar to me in hand paid, the receipt of which I hereby acknowledge, I hereby release any and all claims that I now have or hereafter may have to any real estate or personal property that now belongs to Isabelle Phillips.
“I also agree not to molest or disturb said Isabelle Phillips at any future time or any place.
“Witness my hand and seal.
“(Signed) Curl H. Phillips [Seal].
“In presence of:
“Henry Hewitt.
“J. L. Rea.”

The register on the above state of facts granted letters to George W. Phillips on Jan. 11, 1926, and he filed his bond as required in the sum of $6000. After the inventory was filed on Jan. 19, 1926, showing personal estate of $9929.53, and after Curl H. Phillips filed an application and petition on Jan. 21, 1926, praying that the letters of administration granted to George W. Phillips be revoked and letters of administration granted the petitioner, George W. Phillips filed, Feb. 3, 1926, an additional bond in the sum of $14,000, and on the same day filed an answer to the petition to revoke his letters and prayed that the petition of Curl H. Phillips be dismissed, and also filed a supplemental answer on Feb. 18, 1926, and an additional or reapplication for letters of administration, praying that the citation to show cause why his letters should not be revoked be dismissed. The citation to show cause why the letters granted to George W. Phillips should not be revoked was returnable Feb. 18, 1926, and while the record of the case in the exemplification filed does not show the date of the hearing before the register, a hearing seems to have been had on the petition to revoke and answers filed. The record of the register fails, also, to note the filing of the appeal or the appeal bond.

The register, on March 8, 1926, filed an opinion and order revoking the letters of administration granted to George W. Phillips, and on March 11, 1926, the said George W. Phillips appealed to this court and filed his bond on .appeal in the sum of $500, and thereupon the register certified the record before him unto this court. The record was filed in this court as required by the citation directed to the register, but the clerk of this court neglected to mark thereon the date upon which said record was filed.

The register filed with his decree revoking the letters granted to George W. Phillips the following opinion:

Order.

“After due and careful hearing on the above case, I consider it wise to revoke the letters granted to George W. Phillips, administrator in the estate of Isabella Phillips, deceased, dated Jan. 11, 1926, for the following reasons:
“1. That, at the time letters of administration were granted to George W. Phillips, there was presented to me a paper, signed by Curl H. Phillips, and representations made to me that Curl H. Phillips did not have an interest in said estate and that he had renounced his right to administer, all of which representations have been denied by the said Curl H. Phillips. That, at the time said paper was presented to me, I had no authority to determine the effect of same.
“2. That Curl H. Phillips was the oldest son of Isabelle Phillips, deceased, and resided at Carmichaels, Greene County, Pennsylvania, and was entitled to letters of administration on her estate, in preference to George W. Phillips, all other things being equal, and for that reason the said Curl H. Phillips was entitled to be heard before letters of administration were granted to any person.
“3. That, in granting letters to George W. Phillips, I did not decide, as between he and Curl H. Phillips, as to who would be the proper person to> administer on said estate.
“4. By revoking said letters, George W. Phillips and Curl H. Phillips are both placed in the same situation they were prior to the time letters were granted to said George W. Phillips, and both can be given a fair hearing in order that I might decide who is the proper person to whom letters should be granted.
“5. In fairness to Curl H. Phillips, George W. Phillips and myself, the letters of administration granted to George W. Phillips should be revoked in order that I might correct an honorable misunderstanding in the granting of the same.
“6. The register has original jurisdiction to revoke letters of administration wrongfully and improvidently granted by him, as was done in this case: Sharpless’s Estate, 28 Dist. R. 746; Wehry’s Estate, 47 Pa. C. C. Reps. 486.
“And now, March 8, 1926, I hereby revoke the above letters for the above-stated reasons.
“J. Bryan Varner,
“Register of Wills. [Seal]”

After the appeal was filed, a date for hearing the matter was fixed and the testimony filed herewith was taken in open court.

In addition to the.above facts, this court finds that, after having lodged a caveat warning the register not to grant letters to Curl H. Phillips, or any other person, George W. Phillips appeared within seven days thereafter, and he and his counsel represented to the register that Curl H. Phillips was a drunkard and unfit to administer his mother's estate and filed a paper which he claimed Curl H. Phillips had executed, a copy of which is hereinbefore set forth, whereby it was claimed he had released all interest he had in decedent's estate, including his right to administer thereon, and the register, without notice to Curl H. Phillips, who was the elder son of decedent, found the facts to be as claimed by George W. Phillips, the appellant, and granted the letters to him as prayed for in his application, without a hearing or notice of any kind to Curl H. Phillips.

The register also found that it had been the custom and practice of the register, if there were no other objections to such appointment made known to him, to name the eldest son or daughter of the class entitled to letters, and that he would have observed the same rule in this case, in the exercise of his discretion, and if, upon a proper hearing and consideration of the claims of both parties, he had ascertained that the objections to the granting of letters to the said Curl H. Phillips were without foundation, he would have issued the letters to him. The register, after considering the petition of Curl H. Phillips to revoke, the letters granted to George W. Phillips, concluded that he had improvidently and without due consideration granted letters in the first instance to the said George W. Phillips, and for that reason he has revoked his said appointment. The register was also of the opinion that he had no authority to determine the effect of the alleged release of Curl H. Phillips submitted for his consideration and that he acted without granting the said Curl H. Phillips any opportunity to be heard prior to the granting of said letters to the said George W. Phillips, and he believed that an opportunity for a fair hearing should be given to both of said claimants.

Without disposing of the caveat against Curl H. Phillips, which operated for ten days after its filing as a stay against the granting of letters to Curl EL Phillips or any other person, including the caveator, even though no bond had been filed, the register granted letters of administration to the caveator. Thus Curl EL Phillips was deprived of his day in court and his right to be heard on the facts as to the objections urged against his fitness to be appointed and as to whether or not the alleged release was a bar to his right to have letters of administration.

The court, at the hearing on appeal, permitted evidence to be taken for the purpose of showing the circumstances under which the paper marked Exhibit “A,” page 37 of the testimony, was executed and delivered by Curl H. Phillips to the said Isabelle Phillips. Curl H. Phillips, apparently disappointed at not receiving more money from his father’s estate, kept demanding from his mother from time to time that she give him the $1 that was bequeathed to him. He was a soldier in the Spanish-American War and had given his mother to keep for him $200 of money he drew while in the army, $425 he earned working on a mailroute for M. M. Thompson, and $200 he earned working on an engineering corps, in all about $880.76 (page 8). Decedent admitted that she owed Curl over $800, part of which he got before he went to the Philippines. See testimony of Louie Guseman, page 16.

He asked' his mother for this money, and the dollar bequeathed to him, frequently, but she denied owing it to him, and that started trouble between them, and he says it would cause him to take to drinking. She appeared to have refused to pay him his money, claiming that she had raised him and was entitled to the money.

It is claimed that the release, Exhibit “A,” needs no explanation, that its meaning is apparent, and there are no latent ambiguities to be reconciled in order to understand the writing. In view of the above-recited facts, the' paper might bear either of two constructions. It may be construed to be a release of any and all claims that he might assert on account of the money claimed by him from his mother and an agreement not to molest or disturb her in the future. It is not at all clear, nor does the language of the paper sustain the contention of the appellant, that it was intended to be a release of all interest of the appellee in his mother’s estate. The evidence taken before the court was for the purpose of ascertaining, if possible, which of these two purposes was in the minds of the parties at the time the paper was executed.

About the time the paper was executed, Oct. 26, 1907, Curl claimed his mother owed the aforesaid sum of money, and they had some trouble about it and went to ’Squire J. L. Rea’s office and stated to him that they had settled their difficulties and asked him to draw up a paper by which Curl would agree to treat his mother properly in the future and behave himself properly toward her. Subsequent to the execution of this paper, Louie Guseman, who was well acquainted with decedent, testified that she talked with her about her business and asked her “why she didn’t make a will, and she said when she was gone it would be divided any way” between the children, and that decedent had mentioned the matter more than once. Flossie Fiett testified that she was nursing Mrs. Phillips at one time and Mrs. Phillips told her to get the paper, Exhibit “A,” that she wanted to see it and wanted the witness to see it. Mrs. Phillips “said she had that paper, but it didn’t amount to anything. She just had it to scare Curl, and I asked her to go ahead and get her business straightened up, and she said it would be all right.”

Another witness, Agnes Baker, said Isabelle Phillips exhibited the writing to her^ and she “said the paper wasn’t worth the paper it was wrote on.” Mrs. Louie Kuhn said she often talked to decedent relative to the disposition she would make of her property after her death, and she said “it was hers while she lived and then it went to the children.”

Bigler Miller says when she was sick in bed and was talking about dying, “I said, why don’t you make a will and will it to the two boys?” She said, “I reckon they will get it anyhow.” “We got to talking about this paper (Exhibit “A”); she said it wasn’t worth the paper it was written on.” ’Squire Rea said he had a conversation with Curl H. Phillips, shortly after his mother’s death, about the paper, and he asked the ’squire if he still had it, and, in speaking about his right to participate in his mother’s estate, he said “he didn’t know whether he had any rights or not.”

Curl H. Phillips says he refused to sign a paper (a renunciation) which ’Squire Rea asked him to sign shortly after his mother’s death and before letters were granted to George W. Phillips.

Discussion.

From the above facts we are to determine whether or not the register improvidently granted letters to George W. Phillips? Whether or not it was within his power to revoke the said letters?

Did Curl H. Phillips, by executing the paper dated Oct. 26, 1907, release all his rights as an heir-at-law in the estate of his mother?

In the first instance, we have the register’s own opinion that his appointment of appellant as administrator was prematurely and inconsiderately made.

The register had power under the Act of March 15, 1832, P. L. 135, and Fiduciaries Act of June 7, 1917, P. L. 447, to grant letters of administration to the surviving spouse, and in certain, cases to such relations or kindred, or such one or more of them, as he shall judge will best administer the estate, preferring always of those entitled, such as are in the nearest degree of consanguinity with the decedent, and also preferring males to females. The Act of May 13, 1925, P. L. 687, eliminated the words “and also preferring males to females.”

There is nothing in either of these three acts that requires the register to observe the rule of appointing the oldest child, or what is known as the rule of primogeniture. “Primogeniture gives no right of preference so as to weigh against the wish of the majority of interests, yet if things are precisely equal — if the scale is exactly poised — being the elder brother would incline the balance:” Brubaker’s Appeal, 98 Pa. 21, 24. The register states if there had been a hearing on the caveat and petition filed by appellant, and he had been convinced that Curl H. Phillips was in all respects a proper person to appoint, and was not barred of his right to administer by the paper dated Oct. 26, 1907, he would have observed the above-recited rule. The register, in exercising his discretion, could, and in proper cases should, disregard this rule or practice, but its general application, where other things are equal, should have some weight in determining his appointment. It was likewise a practice to require a renunciation of the eldest of a class before appointing a younger applicant in the same class.

We are also of the opinion that under sections 20 (a) and 20 (b) of the Register of Wills Act of June 7, 1917, P. L. 415, the caveat filed by the appellant in this case operated as a stay against Curl H. Phillips for the full ten days after the caveat was filed, that being the time within which appellant could file his bond and continue his caveat■ in force thereafter, as required by the act.

“The office of the caveat is to arrest the proceedings until the truth of the facts alleged or affecting the validity of the will can be determined and it inures to the benefit of all parties interested in the subject (Ottinger v. Ottinger, 17 S. & R. 143), and a caveat separately filed by each heir-at-law or other person interested is unnecessary. Each heir-at-law has the right to an issue if he can show facts that would sustain a verdict against the will: Schwilke’s Appeal, 100 Pa. 628. This right is saved to all, however, by the caveat of any one of these persons filed within the proper time, since all the others may be, and must be, joined or afforded an opportunity to join, in the contest:” Miller’s Estate, 166 Pa. 97, 109.

“Caveat, let him beware, is a notice given by a party having an interest, to some officer not to do an act till the party giving the notice has a chance to be heard, as to the register of wills . . . not to grant letters of administration . . . until the objections can be heard:” Kenyon v. Stewart, 44 Pa. 179, 190. Here, the caveator takes advantage of a right he has to prevent Curl H. Phillips from taking out letters for ten days, and within that period caveator petitions for and is granted the letters without notice to him. No hearing should have been had within said ten days’ period unless by agreement of the parties, and no action should have been taken by the register within that period without an opportunity granted to Curl H. Phillips to be heard. The granting of letters to the caveator within that period was, under the circumstances, prematurely and inconsiderately done. An improvident decree has been defined to be “one which has been prematurely or inconsiderately made:” Hawkins, Orphans’ Court Practice, 28, page 32.

Was it within the power of the register to revoke letters granted to appellant? Section 5 of the Register of Wills Act of June 7, 1917, P. L. 415, provides that “any register of wills shall have power to revoke letters of administration granted by him whenever it shall be made to appear to him that such letters have been granted to, or on the nomination of, persons who are not the next of kin of the decedent entitled to administer, or whenever, after the granting of letters of administration, a will of the decedent shall be duly proved and admitted to probate.”

The commission who drew up this act of assembly, in its note relating to this section, says as follows: “This is a new section, intended to be declaratory of the existing law and to remove any possible doubt as to the original jurisdiction of the register in the oases mentioned, as distinguished from the revocation of letters testamentary.” Prior to the Act of 1917, it had become the established practice in this State for the register to revoke letters of administration wrongfully and improvidently granted by him: McCaffrey’s Estate, 38 Pa. 331; Hermes’s Estate, 32 Pitts. L. J. 474; Williams’s Appeal, 7 Pa. 259; Comfort’s Estate, 12 Pa. C. C. Reps. 571; Harman’s Estate, 1 Lanc. Law Rev. 204; Neidig’s Estate, 183 Pa. 492.

The application to revoke letters of administration should be made to the register of wills and not to the Orphans’ Court: Dundas’s Estate, 15 Dist. R. 90; Sudam’s Estate, 3 W. N. C. 305; Farrell’s Estate, 1 W. N. C. 15. If the power to revoke letters of administration in such cases as this does not rest with the register, no court has such power. In Wehry’s Estate, 47 Pa. C. C. Reps. 486, the court held that the register of wills, and not the Orphans’ Court, is vested with the power of revoking letters of administration when improvidently granted by him, saying in its opinion: “It is unnecessary to discuss the merits of this case, because the procedure is not in accordance with established practice.” As was said in the following case: “The register acted with precipitancy in the first instance in granting letters of administration to Jonathan Bieber. . . . He ought to have cited the parties before him and have given them notice, when either of the parties could have had the decision of the register’s court. All ex parte proceedings in judicial matters should be avoided:” Bieber’s Appeal, 11 Pa. 157, 162.

Likewise, in Sharpless’s Estate, 28 Dist. R. 746, 748, a ease in which letters of administration were revoked by the register of wills because they had been previously granted upon a misrepresentation or misunderstanding of the relationship to decedent of the applicants for appointment, the court says: “These decisions, and many others of like import, establish the right of the register to revoke in the instances cited, in the absence of any direct statutory enactment giving him that power. And if section 5 of the Act of 1917 referred to was merely intended to be declaratory of the existing law, we seriously question whether the register is not limited in his power to revoke letters in the two instances cited in section 5. He has said in the order filed revoking the letters that he does it ‘to correct an honorable misunderstanding in the granting of the letters in the first instance.’ Of the four reasons given by him in his order, this is the only one to which we are inclined to give serious consideration. The others seem to us to be without weight, and alone would not justify his decree.”

The register, in his opinion filed in the instant case, was evidently following Sharpless’s Estate, suprra, and he uses language quoted from that case, stating that he is revoking the letters “to correct an honorable misunderstanding in the granting of letters in the first instance.” The Fiduciaries Act of June 7, 1917, § 53 (a), P. L. 447, provides therein nine reasons for which the court can remove an administrator or other fiduciary, and all of these reasons are based on matters which occur subsequent to the appointment of the administrator or trustee, such as wasting or mismanaging the estate, failing to exhibit accounts, becoming a lunatic or weak-minded person, or otherwise incompetent to discharge the duty, removal from the State, and other similar causes. The Orphans’ Court Act of June 7, 1917, 9, P. L. 363, provides that “the jurisdiction of the several Orphans’ Courts, whether separate or otherwise, shall extend to and embrace (a) the control, removal and discharge of executors and administrators deriving their authority from the register of the respective counties. ...”

“The ground of proceeding was that the letters had been improvidently granted to the appellant without notice to and in contravention of the rights of those legally entitled to administration. This was fpr cause antecedent to the grant of letters, and, if not directly within the Act of Assembly of 1832, has been sanctioned by practice. ... We have no doubt but that a register’s court can vacate letters of administration: . . . Stoever v. Ludwig, 4 S. & R. 201:” McCaffrey’s Estate, 38 Pa. 331, 333.

It was the duty of the register of wills in his discretion to select an administrator, and, after his discretion had been properly exercised, we would certainly not interfere with it, but he acted, as he says himself, improvidently and without notice to Curl H. Phillips and in so doing he deprived the said Curl H. Phillips of his right to be heard, and the register himself was the proper person to revoke this action. In Kern’s Estate, 212 Pa.. 57, 59, the right of the register of wills to revoke letters of administration after a will was found was disputed. The court said, in discussing the question of letters improvidently granted and notice, as follows: “The existence of a valid will and its probate determine conclusively that the letters of administration were improvidently granted and should be revoked. Why, then, should not the register revoke them? It is simply a formal, though a mandatory, act. The parties interested are all heard when the will is probated. When it is presented, the register should not act ex pwrte, but issue a citation to all parties interested in the estate, and they may then be heard as to the validity of the will and the consequent right to issue letters testamentary. If any person is aggrieved by the action of the register, he can have his rights determined in the usual way by an appeal.”

So far as the register undertook to determine the meaning of the alleged release as a bar to the right of Curl H. Phillips to administer, he had power, under section 19 of the Register of Wills Act, to certify the entire record to this court as a disputable and difficult matter for its determination.

It is contended by appellant that the only cases in which the register has a right to revoke letters improvidently granted are those specified in section 5 of the Act of June 7, 1917, P. L. 415: (a) Letters granted to persons who are not next of kin, and (b) where, after granting letters of administration, a will is found. The law in these two instances was precisely so decided prior to this act. It is also argued that the maxim “expressio wnius est exchtsio alterius” applies to the construction of statutes such as this (Com. v. Cuncannon, 3 Brewster, 344), and that it is presumed in the construction of such a statute that it embodies all the instances in which power is to be exercised by such an officer, and the power not expressly given is, therefore, prohibited to him. In other words, since there is express mention of two cases in which the register has express jurisdiction, there is an implied exclusion of his power to revoke letters for any other reason. But it is said in 36 Cyc., 1122: "The maxim should be applied only as a means of discovering the legislative intent and should never be permitted to defeat the plainly-indicated purpose of the legislature.”

Prior to the enactment of 1917, the two classes of cases covered by the act had been repeatedly before the courts, as illustrated in the recent cases of Neidig’s Estate, 183 Pa. 492, where the right to revoke letters granted to persons not next of kin was disputed, and in Waltz’s Appeal, 242 Pa. 167, where the right to revoke letters after a will was produced and probated was disputed.

Was the paper of Oct. 26, 1907, a release of the right of Curl H. Phillips to administer?

The consideration of this question was for the register in the first instance, and, while it might not he now for the consideration of the court, it will be considered as though it had been certified to the court under section 19 of the Register of Wills Act as a disputable and difficult matter in controversy for determination.-

In view of the facts as we have found them to be, this court has arrived at the conclusion that the paper was executed as a release to Isabelle Phillips of all claims of the said Curl H. Phillips that he then had or might thereafter have against her property or the money which he claimed she had received from him and an agreement on his part to forego his right to demand payment of the same from her. The wording of the paper itself will support this construction, based on the fact alone that she had his money in her hands and claimed the right to withhold payment from him. When we consider the additional fact that she declared in effect and on several occasions that it did not affect his right to claim his share of her estate and that he would participate equally with his brother in her estate, we can readily conclude that it was not intended to bar his right to claim as her heir. Curl H. Phillips was not a good witness, but he made it sufficiently clear that he had a money claim against his mother and that he intended by the paper, Exhibit “A,” to release his claim against her and her property.

We believe that the testimony of Curl H. Phillips to these facts was competent and relevant because he was not a surviving party to the thing or contract in action within the prohibition of clause (e) of section 5 of the Act of May 23, 1887, P. L. 158, and he comes within the exception that where the controversy is “between parties respectively claiming such property by devolution on the death of such owner, in which case all persons shall be fully competent witnesses.” See Allen’s Estate, 207 Pa. 325.

Nor was the objection to the testimony of the witnesses who testified to the declarations of decedent well taken. “If there is anything well settled, it is that the rule excluding hearsay evidence does not apply to oral or written declarations of deceased persons made against their interest” (Taylor v. Gould, 57 Pa. 152), even if the testimony in this case could be construed as against the interest of decedent.

The alleged release, being for $1, was without sufficient consideration, and, moreover, the construction contended for by the appellant violates the presumption in favor of the rule of equality between children: Morris et al. v. Carlin, 5 Dist. R. 714.

A strict construction of the paper as contended for by appellant would only operate as an assignment of the interest of Curl H. Phillips in the real and personal estate which the decedent had at the time, and the testimony of Frank Huston is that decedent acquired something like $8000 after the alleged release was executed.

We, therefore, conclude:

1. That the register acted improvidently in granting letters to appellant without giving appellee an opportunity to be heard.

2. That the paper of Oct. 26, 1907, was not a release of the expectancy of Curl H. Phillips in his mother’s estate.

3. That, if there was no other objection or other cause shown, the register might have, in the proper exercise of his discretion, issued letters to Curl H. Phillips.

4. That it was, therefore, proper for the register to revoke the letters improvidently granted to George W. Phillips, and, after proper hearing and notice, to grant letters to some fit person legally entitled thereto.

And now, Oct. 31, 1927, it is ordered and decreed that this appeal be dismissed and the record is remanded to the register of wills with direction that he proceed to hear and determine, after due notice, the relative claims of the parties to this controversy and determine, in his discretion, to whom the letters of administration in this case should be issued, as required by law and the act of assembly in such case provided.

From S. M. Williamson, Waynesburg, Pa.


source: Caselaw Access Project

author: Metzger, Dep. Att’y-Gen.,

license: Public Domain

text:
    Bonus on Corporation Stock.

      Corporations — Taxation—Bonus on stock — Corporations of the first class —Act of April 20, 1927.

    1. Under the Act of April 20, 1927, P. L. 322, a corporation of the first class organized since the passage of the act is liable for a bonus upon its authorized capital stock and upon any subsequent actual increase thereof.
    2. A corporation of the first class having a capital stock, incorporated prior to the Act of April 20, Í927, P. L. 322, is liable for bonus upon the amount of any actual increase of such capital stock made after the passage of the act.
    Department of Justice. Opinion to Hon. Edward Martin, Auditor General.
    Oct. 24, 1927.
   Metzger, Dep. Att’y-Gen.,

This department is in receipt of your letter of Oct. 20th, asking to be advised upon the following questions:

1. Is a corporation of the first class, having capital stock and organized since the passage of the Act of April 20, 1927, P. L. 322, required to pay bonus upon incorporation on the amount of capital stock which it is authorized to have and on subsequent actual increases thereof?

2. Is a corporation of the first class, having capital stock, incorporated prior to the Act of April 20, 1927, P. L. 322, liable for bonus on the amount of actual increase of its capital stock, made after the passage of said act?

The Act of April 20, 1927, P. L. 322, reads in part as follows:

“Section 2. Imposition of Bonus. A bonus of one-fifth of one per centum is hereby imposed for State purposes as follows:
“(a) Upon the amount of the capital stock which any corporation hereafter incorporated is authorized to have, and upon the amount of actual increase of the capital stock of any corporation heretofore or hereafter incorporated.
“Section 3. Exceptions. No bonus shall be imposed or be collected, under the provisions of this act, ...(b) from any corporation named in the first class, of section two of the Act approved the twenty-ninth day of April, one thousand eight hundred and seventy-four (Pamphlet Laws seventy-three), entitled ‘An act to provide for the incorporation and regulation of certain corporations,’ which does not have any capital stock. . . .”

Clearly, the general language of section 2(a) is sufficiently broad to comprehend corporations of the first class.

It is equally clear that the legislature has expressed its intention awkwardly in section 3 (b). Section 3 purports to specify three exceptions, and yet that which is comprehended in sub-division (b) cannot, strictly speaking, be said to be an exception, since, with respect to a domestic corporation, bonus for many years has necessarily been strictly incident to capital stock. In other words, if by sub-division (b) the legislature meant merely to except from the class of corporations subject to bonus those of the first class which have no capital stock, it has done a vain thing, for that would have been the law had there been no such express exception specified. Neither is it reasonable to suppose that, in employing the wording found in section 3 (b), the legislature desired to make it clear that in the case of first class domestic corporations, without any capital stock, bonus would not be charged upon capital, as distinguished from capital stock, as in the case of foreign corporations doing business in Pennsylvania, and certain limited partnership associations, inasmuch as there was then in force in Pennsylvania no statute imposing bonus upon the capital, as distinguished from the capital stock, of a domestic corporation.

We cannot impute to the legislature an intention to do a vain thing or an intention to use words which are entirely meaningless. It is to be presumed, therefore, that when the words “which does not have any capital stock” were employed to conclude sub-division (b) respecting the exception of corporations of the first class from the general group of corporations subject to bonus, the legislature intended that corporations of the first class with capital stock should be subject to bonus. This conclusion finds further support, if any is needed, in the wording of the former Bonus Act of May 3, 1899, P. L. 189 (repealed by Act No. 193 of the 1927 Session, here under consideration), which reads in part as follows:

“Section 1. Be it enacted, &e., that all corporations hereafter created under any general or special law of this Commonwealth, except building and loan associations, and excepting all corporations named in the first class of section two of an act entitled ‘An act to provide for the incorporation and regulation of certain corporations,’ approved the twenty-ninth day of April, Anno Domini one thousand eight hundred and seventy-four, shall pay to the State Treasurer. . . .”

It is to be noted that the 1899 Bonus Act did not conclude the provision which excepted corporations of the first class from the imposition of bonus with the words “which does not have any capital stock.” It thus excepted all corporations of the first class from liability for bonus, whether they had a capital stock or not.

Construing section 2 (a) and section 3 (b) together, we accordingly advise you:

1. That a corporation of the first class, organized since the passage of the Act of April 20, 1927, P. L. 322, which first provides for an authorized capital stock upon incorporation, or at a later time, is liable for bonus upon such authorized capital stock; also, that it is liable for bonus upon any subsequent actual increases thereof.

2. That a corporation of the first class having a capital stock, incorporated prior to the Act of April 20, 1927, P. L. 322, is liable for bonus upon the amount of any actual increase of this capital stock made after the passage of said act. This conclusion does not give to the act any retroactive effect, and section 6 provides that: “Upon the actual increase of the capital stock of any corporation, it shall be the duty of the president or treasurer thereof, within thirty days thereafter, to make a return to the Secretary of the Commonwealth of the amount of increase actually made; and, concurrently therewith, such corporation shall pay to the Secretary of the Commonwealth the bonus due on such increase of capital stock.”

From C. P. Addams, Harrisburg, Pa.


author: Kun, J.,

text:
    Kann et ux. v. Walters.

      Party-walls — Bear line of lot — Building laws.

    1. An owner of a city lot may build a party-wall on the rear line of his lot if such lot does not abut on an alley.
    2. It is immaterial that the adjoining owner may not actually use or have occasion to use the wall for many years, or perhaps never.
    3. The question is not whether the wall is presently of mutual benefit or may reasonably be, but whether the wall is built in such a place that it can be of mutual benefit if the other owner should extend his building to that line.
    4. The fact that, according to the practice of the Bureau of Building Inspectors, there is no exception recognized as to rear lines is persuasive that party-walls may be built on such lines, and especially is this so where a dictum of the Supreme Court supports such practice.
    Rule for preliminary injunction. C. P. No. 1, Phila. Co., March T., 1928, No. 12197, in Equity.

      Jesse H. Finn, for plaintiffs; John F. Burgess, for defendant.
    May 2, 1928.
   Kun, J.,

The origin of the right to build party-walls was traced by Chief Justice Moschzisker in his very learned opinion in the case of Jackman v. Rosenbaum Co., 263 Pa. 158. The custom was introdúced by the first settlers in Pennsylvania under William Penn, and the right to build them in Philadelphia was fixed by the early statute of Feb. 24, 1721, 1 Sm. Laws, 124. As stated in that case, the right to build party-walls upon division-lines between lots, while regulated by statute, has developed into the ordinary and natural way to use and enjoy real estate of that character to such an extent as to “become a settled rule of property.”

The complaint is made in this case that the defendant is building a party-wall on the rear line of his lot, which is also the rear line of plaintiffs’ lot, which fronts on a parallel street west. On behalf of the plaintiffs, the contention is made that the defendant has no right to build his party-wall on that line, and counsel cited, as supporting that contention, the old cases of Whitman v. Shoemaker, 2 Pearson, 320, and Rodearmel v. Hutchison, 2 Pearson, 324, in Dauphin County, drawing attention to the fact that the second case was cited by Judge Sulzberger in the case of Bedell v. Rittenhouse Co., 5 Dist. R. 689. The citation, however, was merely of the principle that “its (right to build party-wall) ground is mutual benefit.” That the party-wall is not a mutual benefit at the time it is built, however, is not decisive, and that seems to be the error in the Whitman and Rodearmel cases. It frequently happens that the owner of a lot builds a party-wall on a division-line which the adjoining owner may not actually use, or have occasion to use, for many years, or perhaps never. The question is not whether the wall is presently of mutual benefit or may reasonably be, as was stated in the cases cited, but whether the wall is built in such a place that it can be of mutual benefit if the other owner should ever extend his building to that line. Of course, the owner of a lot cannot build a party-wall along the line of an alley which separates his lot from the adjoining owner, for the reason that the adjoining owner could never build up to that wall because of the alley; but, so far as the rear line of a lot is concerned, there is no basis in the law for holding that an owner may build party-walls on his side division-lines, but not on his rear division-line.

The nearest expression on the subject, although by dicta, in the Supreme Court is in the case of Mercantile Library Co. v. Univ. of Penna., 220 Pa. 328. The litigation in that case had reference to a wall on the rear line of the defendant’s lot. It was decided that the wall there in question was not a party-wall and could not have been contemplated as á party-wall, the use of which would be available to the plaintiff, because of the existence of a passageway in the rear and along the line of the defendant’s wall which the plaintiff was required to keep open by agreements with the owners of other properties adjacent to it, which, of course, prevented the erection of a building contiguous to the defendant’s building at that time. The point is that the case had to do with a wall constructed on the rear line of the defendant’s property, and it was taken for granted that under proper conditions a party-wall could be built on that line, as well as on any other division-line. Mr. Justice Mes-trezat said, at page 333: “We do not mean to be understood as holding that should the alleyway, now located on and extending along the southern part of the plaintiffs' premises (the rear line of the lot), be vacated and the plaintiff desired to erect a building adjacent to the defendants’ line (its rear line), the plaintiff could not erect a party-wall.”

According to the practice of the Bureau of Building Inspectors, as testified to by its chief, there is no exception recognized as to rear lines. While the practice of such a department is in no sense controlling, it is persuasive that the law is as contended for by the defendant, especially as it finds support in the dictum of the Supreme Court referred to. The defendant has the right to build a party-wall on the rear line of his lot.

As to the other point in the case, the proofs show that there will be no interference with the plaintiffs’ use of the alley running from the rear of their property to Carlisle Street.

The rule for preliminary injunction must be discharged.


author: Martin, P. J.,

text:
    Grossman & Atkins v. King Joy Restaurant, Inc.

      Contract — Guaranty—Promise to pay debt of another.

    1. Where a debt already exists from one person to pay another, a promise by a third person to pay such debt cannot be enforced by the debtor who is not a party to the agreement, unless the transaction is accompanied by a transfer of property or funds to the promissor with which to pay the debt.
    2. It is a general rule that no one can maintain an action in his own name upon a contract to which he is not a party.
    Affidavit of defense raising questions of law. C. P. No. 5, Phila. Co., Dec. T., 1927, No. 2565.

      H. Goodfriend, for plaintiffs; B. H. Woolséy, for defendant.
    March 2, 1928.
   Martin, P. J.,

This is an action of assumpsit. Plaintiffs filed a statement of claim, averring that defendant operates a restaurant at the southeast corner of 12th and Chestnut Streets, in the City of Philadelphia, and entered into a contract with William Ferris to make alterations in the building; that Ferris engaged plaintiffs to furnish labor and materials and perform plumbing work in the course of the alterations; that plaintiffs’ claim amounted to $695, and demand was made upon Ferris and the defendant for payment; that upon the refusal to pay, plaintiffs threatened to file a mechanics’ lien against the premises; that defendant and Ferris entered into a written agreement, the execution of the agreement by defendant being in consideration of and induced, inter alia, by plaintiffs forbearing to enforce their alleged right of action against the premises of defendant and against Ferris; that by the terms of the agreement, a copy of which is attached to the statement of claim, defendant agreed to pay bills of five sub-contractors engaged by Ferris, the amounts of the payments to be credited against the balance due to Ferris — Grossman & Atkins, for plumbing, amounting to $695, was one of the bills specified. It is averred in the statement of claim that as no time was stipulated for payment of the claims of the sub-contractors, they became due and payable within a reasonable time, or sixty days, after the date of the contract between Ferris and the defendant. In the agreement Ferris agreed to do certain work, all of which work and material he was to supply and perform within ten days from the date of the agreement, with certain stipulated exceptions.

Ferris and defendant having failed to pay plaintiffs, suit was instituted.

Defendant filed an affidavit of defense raising a question of law, that the statement of claim is based upon a contract between William Ferris and the defendant, to which contract the plaintiffs are not parties or privy; nor is the contract made for their benefit, nor was the primary purpose of the contract for the benefit of the plaintiffs.

Plaintiffs are not parties to the contract between Ferris and the defendant; no fun'd was placed in the hands of defendant to pay plaintiffs’ claim; and plaintiffs are not the only persons in interest. The contract was made for the benefit of Ferris, the original contractor; and the statement of claim does not aver that the work he agreed to do was performed and completed.

The case is governed by the rule announced in Blymire v. Boistle, 6 Watts, 182, that “when a debt already exists from one person to another, a promise by a third person to pay such debt, being for the benefit of the original debtor, and to relieve him from the payment of it, he ought to have a right of action against the promisor for his own indemnity; and if the promisor were also liable to the original creditor, he would be subject to two separate actions at the same time, for the same debt, which would be inconvenient and might lead to injustice.”

This principle is reiterated in Adams v. Kuehn, 119 Pa. 76, which has been followed as late as the case of Greene County, to use, etc., v. Southern Surety Co., in the Supreme Court of Pennsylvania, as of March Term, 1927, No. 160 [292 Pa. 304]. In this last case Judge Kephart stated: “Unless the transaction is accompanied by a transfer of property or funds to the promisor, or by unusual circumstances, there are very few instances where recovery has been permitted to a donee beneficiary.”

Referring to Brill v. Brill, 282 Pa. 276, he said: “The question was one of public policy. The father, admitting an illegitimate child to be his own, was in duty bound to care for it, and his bond in whatever amount necessary should be sustained against him as a matter of public policy.”

After commenting upon Professor Williston placing Pennsylvania in the doubtful column as to enforcing such promises, Judge Kephart states: “But the undoubted weight of authority follows the principles laid down in Bly-mire v. Boistle, supra,and cites numerous cases.

“One difficulty,” he adds, “in enforcing a promise exacted for the sole benefit of a third person comes from the fact that the beneficiary is not a party to the contract, and ordinarily, apart from statute or some principle governing this class of eases, he cannot maintain an action. Moreover, the promisee, though entitled to sue on the promise on ordinary principles of contract, has suffered no pecuniary damages by the failure of the promisor to perform his agreement, and, it would seem, cannot recover substantial damages. . . . The promise is for the relief of the promisee, from whom the consideration moves; the subject-matter of the latter may be in the possession of the promisor when he agrees to perform some act for the benefit of a third person, and as no fund, property or means of payment is transferred to the promisor, no action should be permitted; no title, equitable or otherwise, or interest to such fund or property passes to the third person as beneficiary. He is a stranger to the contract, having paid no part of the consideration moving to the promisor. ... In all the exceptions to the general rule, there is primarily considered the basis or underlying promise from one to another to render some service to a third person. To this is added an additional circumstance which increased the promisor’s estate, or means were placed with him to accomplish the promise; for illustration, a transfer of property or fund to the promisor. ... If a lack of privity of contract seems to stand in the way, it should not affect the equitable right, and, as Judge Simpson points out in Tasin v. Bastross, supra, with us equity is often administered in courts of law through actions of assumpsit. But our decisions are too numerous the other way, and it would seem the legislature is the only authority that could possibly change the rule. The rule is one of substantive law and not merely one of procedure. . . . Our conclusions may be summarized as follows: Under the general rule stated in Blymire v. Bois-tle, supra, and followed for almost a century, where the contract is for the benefit of the promisee, or, in other words, where the third person is a creditor beneficiary, there can be no recovery. In the case of a donee beneficiary, or where the contract is made for the sole benefit of a third person, there may be recovery only where the consideration for the promise is a transfer of property or money to the promisor, or where unusual circumstances are present.”

Plaintiffs do not come within any of the exceptions to the general rule that no one can maintain an action in his own name upon a contract to which he is not a party: First M. E. Church v. Isenberg, 246 Pa. 221.

And now, to wit, March 2, 1928, the affidavit of defense raising a question of law is sustained.


author: StearNE, J.,

text:
    Housekeeper’s Estate.

      Taxation — Inheritance transfer tax — Beneficial association — Co-operative Wage Dividend Fund — Transfer of principal before death — Act of June 20, 1919 — Philadelphia Rapid Transit Company’s employees.

    1. Where the legal object of a transfer of money to a trustee Is to retain in the donor the beneficial ownership during his life and to postpone the enjoyment of the principal of the fund to a beneficiary until the donor’s death, the principal of the fund is subject on the donor’s death to the inheritance transfer tax imposed by the Act of June 20, 19X9, P. L. 521.
    2. Where the employees of a corporation pay over to a trustee a portion of their wages under a plan by which the trustee invests the fund, and pays over to each member the income therefrom during life and the principal to him on leaving the employment of the company, or on his death to the beneficiary named in his certificate of membership or to his estate, and the certificates are not transferable, an inheritance tax is due on the principal passing to the beneficiary on the member’s death.
    Appeal from register of wills. O. C. Phila. Co., July T., 1927, No. 2142.
    • Allen Hunter White (Ballard, Spahr, Andrews & Ingersoll, of counsel), for petitioner, Edward B. Martin, guardian of Emma May Langford.

      K. H. Gilbert, for Commonwealth.
    Jan. 9, 1928.
   StearNE, J.,

This is an appeal from an appraisement and assessment for transfer inheritance tax of the interest of decedent in the Co-operative Wage Dividend Fund, of the Philadelphia Rapid Transit Company.

The Commonwealth claims a tax under section (c) of article x of the Act of June 20, 1919, P. L. 521, reading as follows:

“Section 1. . . . that a tax shall be . . . imposed upon the transfer of any property. ...(e) when the transfer is ... by deed, grant, bargain, sale or gift . . . intended to take eifeet in possession or enjoyment at or after death.1'

The tangible property sought to be taxed is represented by five certificates, in the name of the decedent, with the aggregate face value of $691.01.

Certificate No. 5326 for five shares, in amount $149.98, issued Dec. 30, 1922, is styled “certificate of participation in 55,000 shares Philadelphia Rapid Transit Company stock held by the trustees Co-operative Wage Dividend Fund.” It certifies that decedent, while an employee of the company, is entitled to 2| per cent, quarterly dividends upon the shares represented by the certificate so long as the 6 per cent. Philadelphia Rapid Transit Company dividend is paid. It further stipulates that, upon leaving the service of the company, the owner, or, in case of his death, the owner’s beneficiary, will receive, at the option of the trustees, the shares represented by the certificate, or cash to the amount of $30 per share or fraction; that by authority of resolution of Co-operative Council, ratified by convention of employers and employees, the voting power of “this stock” is lodged in the trustees. It is signed by the president, treasurer and assistant treasurer. At the top of the certificate there appear these words, “55,000 shares, cost $1,650,000. At the bottom is printed, “this certificate is not transferable.”

.Certificate No. 5645, dated Dec. 31, 1923, for 4.81 shares, amount $144.34, is entitled “certificate of participation in 1923 purchases of Philadelphia Rapid Transit Company stock. . . .” The remaining wording is substantially the same as in the preceding certificate. At the bottom of certificate appears this wording, “this certificate, representing membership and interest in the fund, is not transferable.”

Certificate No. 6165, dated Dec. 31, 1924, for 4.74 shares, amount $161.32, appears in different form. Its title relates, to 1924 purchases of stock by the fund, and certifies that decedent “has participated in 1924 purchases of shares of the capital stock of Philadelphia Rapid Transit Company in the amounts designated above.” This certificate entitles the employee to whom it is issued to a proportionate share of the income received from the securities purchased with the amounts deposited during 1924, when and as distributed by the trustees in accordance with the regulations of the Co-operative Wage Dividend Fund. It is further stated that on leaving the service of the company, the owner of this certificate, or, in case of death, the owner’s beneficiary, will receive, at the option of the trustees, the securities or cash represented by this certificate. Also, that “This certificate, representing membership and interest in the fund, is issued and held subject to the regulations of the Co-operative Wage Dividend Fund, and is not transferable.”

The remaining two certificates, No. 9828, for 4.27 shares, in amount $162.36, dated Dec. 31, 1925, and No. 6190, for 1.87 shares, in amount $73.01, dated Dec. 31, 1926, are in the same form as certificate No. 6165, and are stated to represent the trustees’ purchases of stock for the years 1925 and 1926.

The decedent died a resident of Philadelphia County, Feb. 10, 1927. At the time of his death he was an employee of the Philadelphia Rapid Transit Company, and had been such since May 30, 1895. On May 24, 1922, he made application to become a member of the Co-operative Wage Dividend Fund, and was on that date automatically admitted to membership therein. He designated his granddaughter, Emma May Housekeeper, now Langford, as his beneficiary.

Prom the record and evidence the “Co-operative Wage Fund” (this title being the present authorized title of the organization) is a volunteer unincorporated association, composed of employees of the Philadelphia Rapid Transit Company. The association has duly adopted “regulations,” which have been amended from time to time. Those in effect at the death of decedent, as offered in evidence, were amended to Sept. 15, 1925.

The expressed object of the “fund” is found in the first article of the regulations, which read as follows:

“ARTICLE I.
“Object.
“Section 1. The Co-operative Wage, earned by the combined and co-operative efforts of the employees of the Philadelphia Rapid Transit Company, should, as evidence of their financial responsibility, be kept together in a special fund.
“Those representing capital have always spoken authoritatively because of their money power. Men and Management with money power added are stronger than is capital standing alone.
“The Co-operative Wage Fund is established so that the employees, by keeping their Co-operative Wage undivided, can together, as time passes, more and more effectively function as a principal in the hiring of capital as against the heretofore universal practice of capital hiring labor.”

An analysis of the regulations reveals: Any regular employee of the Philadelphia Rapid Transit Company automatically becomes a member of the fund by his formal written application, approved by his superior officer, wherein he accepts and agrees to the regulations then existing and as may hereafter be duly amended; he authorizes the transit company to withhold and to pay a proportionate part of his wages, from time to time, as' fixed by the proper officials of the fund, and the moneys or funds so held are to be administered by trustees; the trustees are to invest the moneys and are not limited to legal securities, and are particularly authorized to invest in Philadelphia Rapid Transit Company stock; trustees are to make disposition thereof as provided for in the regulations; they are to issue to the members of the fund certificates equal to the amount which each member has deposited; when a member ceases to be an employee, or upon his death, then to pay either to the employee or to the employee’s designated beneficiary (should he be deceased), or if none, then to his estate, the amount in cash of such co-operative wage then paid in by such depositor, or the pro rata share of securities represented by such certificate; the certificates are termed “non-transferable participation certificates;” the trustees are directed to distribute periodically to the holders of certificates the income accruing to the fund; the applicant states his identification with the company, gives some of his family history, his residence, the name, address and relationship of his beneficiary, and reserves the right to change the beneficiary; the application is dated and is signed both by the applicant and by the beneficiary, and requires the written approval of the superintendent or department head.

Under the regulations, the fund is administered by a board of trustees, appointed regularly as therein provided. The trustees are to invest and reinvest the funds, and their powers and duties are clearly defined.

The trustees are given custody of all funds and securities, together with all voting rights; rights as legal title holders to the securities in their custody are expressly conferred by the regulations upon the trustees.

The trustees appear to he four in number, three of whom must be designated officers of the Co-operative Welfare Association (an entirely different organization from the Co-operative Wage Fund), and the fourth, the vice-president-finance of the Philadelphia Rapid Transit Company, all of whom must be “depositors” in the fund. The regulations state that the trustees are under the direction of the “Co-operative Council.” While the regulations appear silent as to the personnel of the Co-operative Council, yet an amendment to the regulations under date of April 20, 1926, offered in evidence, states that it is “composed of the entire membership of the general committees — employee and employer. . . .”

Section 6, article v, of the regulations provides: “The trustees shall distribute to members the income accruing to the fund, when, in the judgment of the trustees, the amount so received justifies such disbursement.”

Section 3, article v, provides: “The trustees shall return to any member ceasing to be an employee of the Philadelphia Rapid Transit Company, or to the designated beneficiary of a deceased member (or, in case there be no living named beneficiary, then tlje personal representative of the deceased member), the amount or amounts then paid into the fund by such depositor, or the pro rata share of securities and cash represented by such certificates, as may be determined by the trustees to be for the best interests of all members of the fund. Payments shall be made within thirty days after notification and upon surrender of participation certificate.”

Under these facts, the Commonwealth claims a transfer inheritance tax upon the theory that it was in effect a transfer made and intended to take effect after death, the grantor retaining the beneficial enjoyment during his own lifetime. The guardian of the minor beneficiary contends that the scheme is an absolute transfer of title, possession and control, which exempts the fund from tax, as in the cases of insurance and beneficial associations, where the fund is payable to a designated beneficiary.

After a careful examination of the entire record and a consideration of all the authorities which I have been able to find, I have formed the opinion that the contention of the Commonwealth is correct and that the certificates are taxable.

The principle which excluded the proceeds of life insurance policies or beneficial funds from inheritance taxation is that such funds have never formed part of the decedent’s estate. They do not, therefore, “pass from” the estate of the insured, but directly from the assets of the insuring companies. Afer years of experience and the careful compilation of vital statistics, insurance companies are able to determine with reasonable accuracy the life expectancy of any individual at a given age. From this data a premium for insurance is fixed. The policy-holder receives an insurance protection upon the payment of the fixed premium. The contract is a cold business proposition which may inure to the benefit of either or both. The named beneficiary’s interest is created by the terms of the contract itself and not because of the accumulation of moneys paid in by the policy-holder. If the policy-holder happens to die shortly after the purchase of the policy, the beneficiary talces the full amount or face of the policy, which is usually in excess of the total amount' of premiums paid in. There are numerous variations in insurance contracts, but the basic principle remains the same.

Beneficial, accident, health and occupational insurance all have the same fundamental contractual basis.

It is for this reason that no tax is assessable. See Frank’s Estate, 9 Pa. C. C. Reps. 662; Vogel’s Estate, 1 Pa. C. C. Reps. 352; Murphy’s Estate, 21 Pa. Superior Ct. 384.

A savings fund account presents a different situation. Here the “depositor” pays in his own money. When he withdraws it, he takes out exactly what he has paid in, plus interest. Admittedly, such a fund is an asset of an estate and is clearly taxable.

Where a stipulation is attached to a savings fund account that, upon the decease of a depositor, a named survivor is entitled to withdraw the fund, or where the account is in joint names with similar stipulation (except husband and wife), it is well settled that the fund may still be part of the depositor’s estate and be subject to all the burdens as to debts, taxes, etc. See Flanagan v. Nash, 185 Pa. 41; Grady v. Sheehan, 256 Pa. 377.

It is to be noted that under the Co-operative Wage Fund plan it is only the amount of the employee’s own wages which he has deposited in the fund which passes to the beneficiary. The earnings from the fund are periodically paid to the employee himself during his own lifetime. There is no added insurance or beneficial feature to the scheme.

I note that the certificates are not transferable and neither are they attachable. See Building and Loan Ass’n v. Dogostino, 8 D. & C. 161. This does not, to my mind, affect the question. The Act of June 30, 1923, P. L. 984, authorized the passage of such a rule and by-law. While an employee may not assign his certificate because of such statute, yet at any time he can collect the full amount of the fund by resigning from the company. Furthermore, while remaining as an employee, he continues to enjoy the full fruits of his savings by receiving, periodically, the earned income therefrom. The employee also reserves the full right to change, without consent, the named beneficiary.

Attention is particularly directed to the object of, the fund. It plainly states that the “combined and co-operative” efforts of employees should be kept in a special fund. Why? As evidence of their financial responsibility. It says that capital speaks with authority because of money power, but that labor with money is stronger than capital alone. That the employees by the medium of this fund hire capital, rather than still permit capital to hire labor. The purpose is a large conception, and with which I have no quarrel. However, the purpose is manifest. The employee’s own wages are used to create a joint fund with which to purchase stock of the company (or other securities if necessary) and thus enable the employees collectively to become owners of the company. It encourages thrift and is certainly an advanced idea. In the meantime, the employee receives his profits from his savings. Should he leave the company he receives all that he pays in, and when he dies the fund goes to his designated beneficiary, or, in default, to his estate.

The words “depositor” and “deposited” constantly1 appear in the regulations. The creator of this broad and beneficial scheme manifestly had in mind the accumulation of the employees’ savings, their use and investment, the protection against assignment and attachment, the proviso as to the severance of the employment and the payment after death of the fund according to the employee’s wishes.

While all of this is worthy and beneficent, yet it could hardly be said to partake of an insurance or beneficial contract. It is certainly more analogous to a savings fund account.

As the Act of 1919 taxes not only the estates of decedents, but “transfers of any property ... by deed/ grant, bargain, sale or gift . . . intended to take effect in possession or enjoyment at or after death,”'I do not think the question as to whether the scheme is testamentary requires consideration.

The guardian of the beneficiary relies chiefly upon Vogel's Estate, 1 Pa. C. C. Reps. 352, and on Folmer’s Appeal, 87 Pa. 133. Both of these cases relate to proceeds from relief or beneficial associations. For the reasons given herein, I do not feel that the law, under their particular facts, applies to the present case.

It must be conceded that title to the fund passed to the trustees, subject to being divested upon the employee ceasing to remain in the employ of the company. However, the employee continues to receive the enjoyment of the fund for life, and the beneficiary takes, and is only intended to take, the principal of the fund upon the death of the employee.

Under these circumstances, I feel that the present case is ruled by Reish v. Com., 106 Pa. 521; Todd’s Estate (No. 2), 237 Pa. 466, and Spangler’s Estate, 281 Pa. 118.

I fully recognize that in Reish v. Com., supra, the scheme or device adopted amounted to a fraud and was a manifest attempt to evade taxation. Of course, in the present case there is not the slightest evidence of a fraudulent intent. The whole scheme was for the assistance and protection of the company’s employees. However, irrespective of the motive, the legal' effect is to retain in the donor the beneficial membership during his life and to postpone the enjoyment of the property conveyed to the beneficiary until after donor’s death.

It is for this reason I feel the tax is due and that the reasoning used in the foregoing cases has an exceptional application to the present case.

In Reish v. Com., supra, decedent deeded real estate in fee to his brother, and transferred to him absolutely certain personal property. Simultaneously,, the decedent took back a bond from the brother to secure the net profits from the property which he transferred for and during the lifetime of the grantor. Upon the death of the grantor, a tax was claimed and sustained upon this transfer. Justice Clark said (page 526) : “John Reish was entitled to receive the same income and profits from the property during his life as if the transfer had not been made. One certainly cannot be considered as in the actual enjoyment of an estate who has no right to the profits or incomes arising or accruing therefrom . . . the whole matter depends upon the single fact whether or not the transfer was made or intended to take effect in enjoyment at the death of the grantor. The policy of the law will not permit the owner of an estate to defeat the plain provisions of the collateral inheritance law by any device which secures to him, for life, the income, profits and enjoyment thereof; it must be by such a conveyance as parts with the possession, the title and the enjoyment in the grantor’s lifetime.”

In Todd’s Estate, supra, Justice Potter said (page 472): “The effect of the scheme adopted in the presént case was to give to the testatrix a life income . . . and the full enjoyment of the principal could be had by the legatees only after the death of the testatrix. The position taken by the auditor and affirmed by the court below in awarding to the Commonwealth collateral inheritance tax on the legacies given with a reservation of interest thereon during the life of the testatrix was entirely correct.”

In Spangler’s Estate, supra, Justice Simpson said (page 122): “The manifest purpose of our collateral inheritance tax law is to subject property, limited by deed in the manner stated in the statute, to taxation, because it is still substantially the property of the grantor and does not actually pass, nor is it intended to pass, to the collateral beneficiaries until his death, and, hence, it is essentially similar in that respect to a devolution of property by testacy or intestacy upon the death of the owner.”

While not directly in point, nevertheless, the principles set forth in Hartley’s Estate, 8 D. & C. 164, decided by our court, sustain the principle that a transfer of property, retaining the absolute and entire enjoyment of the income until death, subjects the fund to transfer inheritance tax.

As the manifest effect of the Co-operative Wage Fund scheme is to give the owners of the certificates a life income and the full enjoyment of the principal1 passes to the designated beneficiary only after the owner’s decease, section 1(c) of the Act of 1919 clearly applies.

And now, Jan. 9, 1928, the appeal is dismissed, the assessment of the register confirmed, and the record is remitted to the register.


author: STEWART, P. J.,

text:
    Stewart v. Pen Argyl National Bank.

      Practice, C. P. — Trespass—Set-off and counter-claim — Motion to strike off affidavit of defense — Act of May 23,1323.

      1. No affidavit of defense is required where the action is trespass, except to meet the matters specifically set forth in section 13 of the Practice Act.
    2. There is no such thing as set-off or counter-claim in an action of trespass.
    3. Where an affidavit of defense was filed to an action in assumpsit, and the form of action was subsequently changed to trespass, a motion to strike off the affidavit of defense, made within fifteen days from the change of action, is sufficient under the provisions of the Act of May 23, 1923, P. L. 325.
    Trespass. Eule to strike off affidavit of defense. C. P. Northampton Co., Dec. T., 1926, No. 20.

      Kirkpatrick, Maxwell & Chidsey, for plaintiff.

      Kent & Rockwell, for defendant.
    June 6, 1927.
   STEWART, P. J.,

This is a rule to show cause why the affidavit of defense, set-off and counter-claim filed in above action should not be stricken from the record. This rule was granted on Feb. 28, 1927. The case is somewhat peculiar in its facts. A summons in assumpsit was issued. We allowed the action to be amended, changing it to trespass, on Feb. 14, 1927, in an opinion reported in 20 Northamp. Co. Repr. 389. The affidavit of defense, set-off and counter-claim had been filed on Jan. 24, 1927, in pursuance of the usual notice in assumpsit, and the record shows that it was served on plaintiff’s attorneys on Jan. 24, 1927. Thus the record shows that the .present motion did not comply with the Act of May 23, 1923, P. L. 325. We held in Wimmer v. Kendall; 20 Northamp. Co. Repr. 220, that the act must be strictly followed. See, also, Blackwell v. Joseph, 7 D. & C. 790. What, therefore, is the present situation? Does the limit expire fifteen days after the date of service, Jan. 24, 1927, which would be Feb. 8, 1927. which was prior to the change of action, or was the motion made in time? We think the fifteen days’ limit must be computed from the time the action was changed. When the action was assumpsit, an affidavit of defense was proper, but, as we hereinafter hold, when the action was trespass, an affidavit of defense was not necessary; hence, this motion is not made too late. An affidavit of defense has never been required in actions of trespass. The Practice Act of May 14, 1915, P. L. 483, provides that certain averments of the statement, if not denied, shall be taken to he admitted on the trial, but it was never contended that a judgment could be taken for want of an affidavit of defense, or for want of a sufficient affidavit of defense. The opinion of Chief Justice Green, in Corry v. Pennsylvania R. R. Co., 194 Pa. 516, shows that: “Under the Act of May 25, 1887, P. L. 272, the legislature intended to confine the remedy by judgment for want of an affidavit of defense to actions ex contractu alone, as they were before the act was passed, and not to extend this remedy to actions ex delicto, or in their nature ex delicto.” In Leonard v. Coleman, 273 Pa. 62, the syllabus is: “Under the Act of May 14, 1915, P. L. 483, defendant in an action of trespass is not obliged to file an affidavit of defense. If none is filed, the only penalty is that certain specified kinds of averments in the statement of claim shall be taken as admitted.” In Smith v. Wertheimer et al., 76 Pa. Superior Ct. 210, the syllabus is: “The Municipal Court of Philadelphia may not by rule of court authorize the entry of judgment by default for want of a sufficient affidavit of defense in actions of trespass.” It will thus be seen that the only purpose of an affidavit of defense in trespass is to exclude on the trial certain admissions in the statement. It would logically follow that an affidavit of defense in trespass ought only to contain the matters which are specifically set forth in section 13 of the Practice Act, supra, as follows: “In actions of trespass, the averments in the statement of the person by whom the act was committed, the agency or employment of such person, the ownership or possession of the vehicle, machinery, property or instrumentality involved, and all similar averments, if not denied, shall be taken to be admitted in accordance with section 6; the averments of the other facts on which the plaintiff relies to establish liability, and averments relating to damages claimed, or their amount, need not be answered or denied, but shall be deemed to be put in issue in all cases unless expressly admitted.” When the present affidavit of defense is tested by that section, we find that its averments are utterly foreign to those averments. The first fifteen paragraphs are taken up with answers to the plaintiff’s averments. Then follow eight paragraphs with various sub-sections, averring a set-off and counterclaim. There is no such thing as set-off or counter-claim in trespass: Quick v. Swanson, 1 D. & C. 608; Brown v. Syostek, 2 D. & C. 431; Ranck v. New Holland Borough, 5 D. & C. 4; Prentzel v. Snyder, 5 D. & C. 178, and Musser v. Watt & Shand, 6 D. & C. 230. The learned counsel for the defendant concede that the bank could not get a certificate for its claim in the present suit, but they state their position as follows: “We can use our set-off and counterclaim in order to extinguish the claim of the plaintiff, if he has any.” They have cited Harper et al. v. Kean, 11 S. & R. 280; Shaw v. Badger, 12 S. & R. 275; Bayne v. Gaylord, 3 Watts, 301; Humphreys et al. v. Reed, 6 Wharton, 435; Price v. Lewis, 17 Pa. 51, and Lehr v. Taylor, 90 Pa. 381. We do not think those authorities sustain the position taken, at least not to the extent of allowing this affidavit of defense to remain a part of the record. It is true that there has been a decided change in the law with respect to counter-claims in actions of assumpsit. In the late case of Rohrbach v. Travelers Indemnity Co., 278 Pa. 74, the syllabus is: “Where money has been obtained by fraud, the injured party may waive the tort and recover the same in assumpsit for money had and received; and under the Act of May 14, 1915, P. L. 483, such claim can be interposed as a set-off in an action of assumpsit.” On page 76, Mr. Justice Walling gives the cases which have been reversed by the decisions. In New York, Susquehanna & Western R. R. Co. v. Ruthven, 88 Pa. Superior Ct. 501, Judge Trexler, in a very carefully reasoned opinion, shows some of the limitations of a set-off or counter-claim. The syllabus of the case is: “A failure by a railroad to accept cars, and the damages resulting therefrom, cannot be made the basis of a counter-claim in a suit by the carrier for freight charges on other shipments. In order to permit the set-off of a counter-claim, the claim on the one hand, and the counter-claim on the other, must arise out of the same transaction, and both in their nature must be ex contractu. Where the right of action is based upon the duty of the carrier to accept all shipments, the counter-claim arises under the contract of society and. not by reason of any engagement between the carrier and the shipper. While it is true that the duty to transport is owing to all men, because of the railroad’s relation to the Commonwealth as a public carrier, yet the wrong done is its refusal to transport, and trespass is the proper action. Under such circumstances, the damages consequent from the refusal to accept the cars cannot be set off against the legitimate freight charges on a different shipment.” It will be perceived that the ground of these decisions is based upon the phrastology of the Practice Act of 1915. However, the same act in no way extends the provisions as to set-off and counter-claim to trespass. In fact, as we have shown from the section quoted above, it excludes them. We do not think the provisions of the late Act of March 30, 1925, P. L. 84, throw any light on the present case. If the affidavit of defense remained on record, plaintiff might be troubled with the question whether the “new matter” needed to be replied to, and whether, if it were not replied to, he might not be in the position of admitting the truth of the “new matter.” Any such contingencies should be avoided. In Reichard v. Insurance Co. of Penna., 8 D. & C. 275, decided April 16, 1926, President Judge Niles refused to strike off plaintiff’s reply when he had filed it without any notice by the defendant to do so, on the ground that the alligations of the affidavit of defense were not “new matter.” He said: “Under the circumstances of these cases, we do not see that any right of defendants will be adversely affected by refusing their motions, nor that any good would be accomplished by striking off these replies. If the allegations of false swearing, &c., are not new matter, plaintiff, without filing any reply, could, of course, meet defendant’s evidence with contradictory proof. If such allegations are new matter within the amendment’s contemplation, plaintiff might be caught in a disagreeable dilemma at the trial had he failed to reply. We are not considering now the legal effect of the matters alleged in the pleadings. We do not feel impelled to expose the plaintiff to a possible peril by striking off his replies.” In Oak Lane Country Day School v. Fidelity-Phœnix Fire Ins. Co., 8 D. & C. 35, and in Oak Lane Country Day School v. Virginia Fire and Marine Ins. Co., 8 D. & C. 194, both decided on the same day, Judge Williams decided that where a reply was not required, it should be stricken off the records, and shows just what could be properly considered “new matter.” The three cases were in assumpsit, and while those opinions contained excellent discussions of the matters therein referred to, they do not apply to this case in trespass. It is unnecessary to pass on the question whether some of the matters referred to in the affidavit of defense would be receivable in evidence on the trial or not. All that we now decide is that the action having been changed to trespass, this affidavit of defense must be stricken from the record.

And now, June 6, 1927, rule to show cause why the affidavit of defense and set-off and counter-claim should not be stricken from the record is made absolute.

From Henry D. Maxwell, Easton, Fa.


author: HassleR, J.,

text:
    Keystone Furniture Company v. Danneman.

      Sale — Affidavit of defense —Sufficiency of — Set-off—Warranty—Practice Act of Mem U, 1915, P. L. 483.

    1. In an action for a balance due on the price of furniture sold on an instalment lease -which did not contain an express warranty, an affidavit of defense is insufficient which avers a breach'of implied warranty, but does not aver facts from which such warrant can be implied, and avers that a thorough examination could not be made when the furniture was purchased at the plaintiffs place of business and that subsequently defects on the backs of upholstered furniture were discovered.
    2. This admits that the sale was on inspection, and there is no warranty against patent defects in such a sale such as were the defects alleged.
    3. Even if there was a warranty and breach of it, the seller should have been notified promptly, and the affidavit is defective in not stating when such notice was given. "Whether such notice was given within a reasonable time is a question of law for the court.
    4. An affidavit containing a set-off must be as specific as the statement and not vague and indefinite.
    Rule for judgment for want of a sufficient affidavit of defense. C. P. Lancaster Co., Jan. T., 1927, No. 50.

      F. Lyman Windolph, for plaintiff; S. V. Hosterman, for defendant.
    April 16, 1927.
   HassleR, J.,

It is alleged in plaintiff’s statement that on May 26, 1924, he sold and delivered to the defendant a three-piece upholstered living-room suit for the sum of $575. The contract between them is in writing. It provides that $200 of the purchase price, or rent, was to be paid in cash and the balance in seven monthly payments of $50 each. The payments were not made as called for, but between the date of the contract, May 26, 1924, and April 13, 1926, a total amount of $525 was paid, leaving unpaid the sum of $50. It provides that no title is to vest in the defendant, but at the expiration of the term the defendant can purchase it and the plaintiff will give a bill of sale to him for it upon payment of the said sum of $575. No warranty of the furniture was expressly made in the written lease, nor can one be implied from anything contained in it. Nor does the defendant set forth any facts in his affidavit of defense that show, or from which it can be inferred, that there was implied warranty, but contents himself with alleging the conclusion that there was an implied warranty. He says that the furniture was purchased at the plaintiff’s place of business, but that a thorough examination of it could not be made of it there because of the inadequate display of it by the plaintiff. The sale is, therefore, admitted to be a sale on inspection. No warranty against any defects that are patent will be implied in such a sale. The defects complained of by the defendant were patent, or could have been seen by the exercise of the slightest diligence on his part, as they were on the surface of the backs of the upholstered furniture.

We do not think any warranty was implied in the tranaction between the parties, but even though there was an implied warranty and a breach of it shown in the affidavit of defense, the claim of set-off contained in the affidavit of defense cannot be allowed because it does not conform to the requirements of the Practice Act in such cases.

The defendant’s set-off contained in his affidavit of defense is a pleading under section 2 of the Act of May 14, 1915, P. L. 483, and subject to all the rules of pleading. Section 5 of the same act requires it to contain in a concise and summary form the material facts upon which the defendant relies to recover his set-off from the plaintiff. In his claim of set-off the defendant is practically the plaintiff, and his statement of his claim of set-off must meet all the requirements of a plaintiff’s statement. It must set forth facts which constitute a good cause of action, and which, if not controverted, would entitle him to recover: Tourison v. Engard, 30 Pa. Superior Ct. 179; Rosenblatt v. Weinman, 230 Pa. 536; Breitweiser Lumber Co. v. Crick, 55 Pa. Superior Ct. 72; Dixie Manuf. Co. v. Lebzelter, 36 Lanc. Law Rev. 133; Kirk v. Stores Co., 37 Lanc. Law Rev. 157. It must be as specific as the statement: Edelson v. Bowermaster, 33 Lane. Law Rev. 94; Rosenblat v. Stauffer, 33 Lanc. Law Rev. 277. It must state the material facts with particularity: Beck v. Kauffman, 26 Dist. R. 1.

The cases are numerous that decide that material facts must be set forth clearly and unequivocally and not vaguely and indefinitely: Byrne v. Hayden, 124 Pa. 170.

The facts, if any, claiming set-off in this affidavit of defense do not meet the requirements of the act of assembly. No facts are stated that show an implied warranty, and all the allegations relating to it are vague and indefinite. If there was an implied warranty, and the defendant discovered that the goods were not as warranted, it was necessary for him to have given notice of its breach promptly, or he could not recover for such breach. Section 49 of the Act of May 19, 1915, P. L. 557, provides that if, after acceptance of the goods, the buyer fails to give notice to the seller of any breach or promise of warranty within a reasonable time that the buyer knows, or ought to know, such breach, the seller should not be liable therefor. It is a matter of law for the court to decide from the facts stated whether such notice was given promptly. In Catalano v. Corcoran, 86 Pa. Superior Ct. 32, it is decided that in an action of assumpsit for breach of warranty, it is not only necessary for the plaintiff to show there was a breach of warranty, but also to prove that the buyer had given notice of the breach to the seller within a reasonable time after the receipt of the goods. Stein v. Bradford, 278 Pa. 321, and Miner-Hillard Co. v. Rosato, 81 Pa. Superior Ct. 94, are to the same effect. The affidavit of defense does not state when the notice was given, so that we are unable to decide that notice of any breach of warranty, if there was one, was given to the plaintiff promptly. We are, therefore, of the opinion that there is nothing in the affidavit of defense to prevent judgment, and we make absolute the rule for judgment for want of a sufficient affidavit of defense and enter judgment for the plaintiff for the sum of $56.90.

From George Ross Eshleman, Lancaster, Pa.


author: Potter, P. J.,

text:
    Commonwealth v. Howden.

      Criminal law — Fornication and bastardy — Suspension of sentence — Parole.
    1. In case of an offense for which ia term of imprisonment is fixed by law, the suspension of a sentence, or parole or the probation can continue no longer than till the expiration of the maximum term of imprisonment, after which the authority of the court over the defendant for that particular offense is at an end.
    2. A suspended sentence is a parole or probation.
    3. On a conviction of fornication and bastardy, no sentence of imprisonment can be imposed.
    4. Where the court has suspended sentence after a conviction of fornication and bastardy, it cannot, twelve years thereafter, call up the defendant for sentence.
    Hearing on bench warrant. Q. S. Snyder Co., June Sess., 1915, No. 1.

      E. E. Pawling and Wm. K. Miller, District Attorney, for Commonwealth.

      Jay G. Weiser and A. F. Gilbert, for defendant.

      Aug. 20, 1927.
   Potter, P. J.,

In the year 1915 this defendant was arrested on the charge of fornication and bastardy. On June 7th of that year he entered a plea of guilty, whereupon the then presiding judge suspended sentence. Nothing further was done in the case till June 6, 1927, when an application was made to us for the arrest of the defendant on a bench warrant, to the end that he might be sentenced, and, desiring to be fully informed as to the status of the case, we awarded the bench warrant, upon which he was brought before us.

Some testimony was taken tending to show that sentence was suspended providing the defendant would marry the prosecutrix, who was then Susan E. Wagner, but who has since married another man, within one year from that date. Whether that is true or not does not enter into the question now before us, which is, whether or not this defendant can be called into court at this late day for sentence.

In our opinion, the Act of June 19, 1911, P. L. 1055, and the construction of that act in the ease of Com. ex rel. Wilhelm v. Morgan, 278 Pa. 395, entirely controls the question before us. This act is commonly known as the Probation or Parole Act, and provides for the release on probation or parole of certain convicts instead of the imposition of a sentence of fine or imprisonment, or both.

In case of parole or probation, the duration cannot be longer than for the maximum term of imprisonment, and a suspended sentence has, in the case hereinbefore cited, been held to be a parole or probation. And when, on June 7, 1915, sentence was suspended on this defendant, he was placed on probation or parole, which terms are synonymous, but for what length of time? None is mentioned.

On a conviction of fornication and bastardy, no sentence of imprisonment can be passed by the court. The defendant is usually sentenced to pay a weekly sum for the support of the child for a number of years; pay the lying-in expenses; pay a fine to be fixed by the court; enter into bond to the overseers of the poor of the district to prevent the child from becoming a public charge, and enter into bond for the faithful performance of the terms of the sentence, and it is only when the defendant does not comply with the sentence of the court that he goes to jail, from which he can be discharged under the insolvent laws at the expiration of three months in case he is insolvent, but he is not sentenced to a jail imprisonment. This comes, however, automatically if he does not comply with the terms of the sentence of the court imposed. It is not, however, fixed by law as a punishment. So that in this case no term of imprisonment can be considered. This defendant had none and none could be given him under this charge.

In case of an offense for which a term of imprisonment is fixed by law, the suspension of a sentence, or the parole, or the probation can continue no longer than till the expiration of the maximum term of imprisonment, after which the authority of the court over the defendant for that particular offense is at an end. Should he violate his parole, he can be brought into court and be sentenced, but this must be done during the term of the time of the maximum imprisonment. It cannot be done after that time has elapsed.

It is now twelve years since this ease was disposed of by the then presiding judge. Under this act of assembly, as construed by the court of last resort in this State in the case hereinbefore cited, how can we at this late date pass sentence on this defendant? To ask this question is to answer' it. We simply cannot do it; wherefore we enter the following decree:

And now, to wit, Aug. 20, 1927, the bench warrant and all proceedings in this case are quashed. Prom Charles P. Ulrich, Selinsgrove, Pa.