author: Kent, P. J.,

text:
    Johnson’s Estate.

      Thomas & Thomas, for petitioner; Walter J. McClintock, for respondents.
    August 4, 1930.
   Kent, P. J.,

This is a proceeding under the Uniform Declaratory Judgments Act of June 18, 1923, P. L. 840, brought by Frank Stewart, grantee in a deed of general warranty from Frank E. Johnson and wife, dated November 30, 1920, to determine what interest, estate or title said Frank E. Johnson acquired under the last will and testament of William F. Johnson, his deceased father, in and to a certain farm of 125 acres, situate in South Shenango Township, Crawford County, Pennsylvania, particularly bounded and described as follows: “On the north by land of Bert Carkhuff and McArthur heirs; on the east by land of Minnie White; on the south by land of Nannie Johnson and Wm. F. Johnson heirs; and on the west by land of Wm. White and Olive Kuder.”

All parties interested in said real estate and in the construction of the will of William F. Johnson, in this adjudication to determine their rights, status and legal relations with reference thereto, have been made parties to this proceeding.

This proceeding to have a declaration of rights, status and other legal relations of the parties interested, all of whom are subject to the jurisdiction of the court, as the record now stands, seems to be proper, and the remedy sought under this act is probably the most convenient and satisfactory one that exists at the present for determining the matter in controversy. Any other action would undoubtedly turn upon the construction of the will to be construed by the court under the submission in this proceeding. Wherefore, the court is of the opinion that the Uniform Declaratory Judgments Act can be made of real use herein and is satisfied that it has jurisdiction and that an..actual controversy.exists. between the parties, all of whom are sui juris or represented by a proper guardian and now before the court, and that the declaration herein sought will be a practical help in the ending of the controversy: Kariher’s Petition, 284 Pa. 455; Lyman v. Lyman et al., 293 Pa. 490.

A careful perusal of the petition and answer clearly discloses that there is little or no controversy between the parties relative to existing facts; generally, the pertinent facts necessary to a proper adjudication appear by the petition and answer, and there is no request and apparently no necessity for trying any issue of fact by a jury. The sole question'involved is: Did Frank E. Johnson under the terms and conditions of the last will and testament of his father, William F. Johnson, deceased, take an estate in fee simple in the lands devised to him, as above described, or did he take but a life estate therein?

Disposition of the question involves and requires an interpretation of the last will and testament of William F. Johnson, deceased. Petitioner contends that by reason of the language used therein the Rule in Shelley’s Case is applicable, and by reason thereof the life estate granted therein is converted into an -estate tail, which, under the provisions of the Act of April 27, 1855, P. L. 368, as amended by the Wills Act of June 7, 1917, P. L. 403, is converted into an estate in fee simple; the respondents contend that the Rule in Shelley’s Case’does not apply and that the devisee took but a life estate under the will of his father.

The pertinent and material facts, as we view them, established in this proceeding are: William F. Johnson, being seized of certain real estate situate in Crawford County, Pennsylvania, died testate December 16, 1897, his last will and testament bearing date of May 23, 1895, being duly probated and registered in Crawford County, Pennsylvania, December 30, 1897, in Will Book “I,” at page ninety-one, wherein Frank E. Johnson, a son, was devised the 125 acres of land hereinbefore mentioned and described upon certain stipulations and conditions; at the time of the execution and registering of said will, the said Frank E. Johnson was under the age of twenty-one years, he having been bom July 16, 1877; upon his arriving at the age of twenty-one years, in July, 1898, he entered into possession of the above-mentioned and described lands, remaining in full and undisputed possession thereof until November 30, 1920, at which time he, together with his wife, Mary Johnson, by deed of general warranty, conveyed said lands to petitioner herein for an actual consideration of $3500; said deed being duly recorded in the Recorder’s Office of Crawford County, Pennsylvania, in Deed Book 221, at page 339; during the period the said Frank E. Johnson was in possession of said lands, he believed, understood and was advised that he was the owner thereof in fee, and that during the said period, on some two or more occasions, mortgaged said property, and it was not until some time after the conveyancé hereinbefore mentioned to Frank Stewart that he learned there was any question relative to his title in fee simple to the land in question; this proceeding being instituted to secure a judicial determination of the question as to whether a title in fee simple became vested in Frank E. Johnson by virtue of the last will and testament of William F. Johnson, deceased.

The determination of this question involves an interpretation of the will mentioned as to testator’s intention relative to the devise to his son, Frank E. Johnson, as stated and set forth in three provisions of the said will, which are as follows:

“To my son, Frank E. I give the use of one hundred twenty-five acres off the north side of the farm on which I live during his life. . . .
“The farm herein devised to my son Frank, is not to come unto his possession until he shall have arrived at the age of twenty-one years, in the-meantime to remain under the control of my executor. It is my desire and I hereby direct that should any of my children, Frank, Howe, Arthur, Jacob, Minnie, Alta or Maud die leaving no issue, the share of such one shall go to the others who survive, but should any of them die leaving issue the said share shall go to .the said'issus-and assigns forever. ...
“Upon the death of any of my children to whom I have given the use of real estate, the same shall be used by them respectively during their lifetime, and then to gq .to^their chüdrgn.-heirs ^and assigns,ioreyey,”

It will be observed that the testator, William F. Johnson, in the first provision, devised to his son, Frank E. Johnson, but a life use or estate in the 125 acres off the north side of the farm upon which testator lived. If there were no further conditions and qualifications contained in the will, we are clearly of the opinion that Frank E. Johnson’s interest would be limited to a life| estate; but when testator says “the farm herein devised to my son Frank, i^ not to come unto his possession until he shall have arrived at the age 'of twenty-one years, in the meantime to remain under the control of my executor,” this, in our opinion, imposes such a condition as might result in intestacy, in so far as the land mentioned is concerned.

Suppose Frank E. Johnson had died before arriving at the age of twenty-one years and entering into possession of the land. The same, remaining under the control of decedent’s executor, in our opinion, upon such a happening would descend, under the intestate laws, to the other heirs of the testator. The remaining two provisions provide for a distribution of the land in the event that Frank E. should die leaving no issue, as well as the disposition of said land if he should die leaving issue. It will be noted that in these two provisions testator, in the second, used the words “issue” and “assigns,” and in the third the word “issue” is omitted and the words “children, heirs and assigns” are used. What was the testator’s intent? This we are to determine, not alone from the particular words used, but as well from the connection in which they are used and from the entire will. In other words, the intention of the testator is to be drawn from the four corners of the will.

Carefully considering the whole will, we strongly incline to the belief that it was the testator’s intent to devise and divide his estate to and among his heirs in as nearly equal'proportions as possible. The language used in nearly every instance where real estate is involved creates but a life use or estate, and it seems very clear to us that the provisions written into the will wherein the words “issue, children, heirs and assigns” are used were advisedly and purposely used to establish a line of inheritable succession for descent upon the death of each life tenant; testator making it plain that he intended the first devisee, named as a life tenant, to be a source of inheritable succession, and he treated the words “issue, children, heirs and assigns,” as .far as expressing his purpose, as words of limitation and not purchase.

In the instant case, the testator gave to his son, Frank E. Johnson, the use of the 125 acres off the north side of his farm during his life, providing that possession thereof be not delivered to him until he arrived at the age of twenty-one, and that upon his death, leaving issue, children and heirs, the fee was then to go to his children, heirs and assigns. The question for us is the sense in which the words were used in this instrument; that is, what was the intent of the testator in the use of the words “issue, children, heirs and assigns.”

We think the context shows that the word “children” was intended to be qualified or explained by the word “heirs” which immediately follows it and that the testator intended to use the word “children” in its comprehensive and extended sense, meaning issue or heirs of the body. It is apparent that the word “children” was not used as a word of purchase, for it was so combined with other words as to indicate an intention to include all the lineal descend.ants of the first taker.

“Where the word ‘heirs’ is coupled with the word ‘children’ it is fair to presume that the testator intended to have the one word qualify or explain the other, and create an estate tail:” Kirby’s Estate, 235 Pa. 542; Asper v. Stewart, 246 Pa. 251.

“When ‘heirs’ is employed in connection with remainderman, the rule in Shelley’s Case applies, unless other language in the will clearly demonstrates that the word was not intended in its technical sense, as a term of limitation (See Stout v. Good, 245 Pa. 383, and other authorities there cited). ‘The strong presumption arising from the use of technical words of limitation is not easily overcome; it may be rebutted, but it can be by nothing shortof affirmative evidence of a contrary intent, so clear as to leave jio_reasOnable doubt: ’ Little’s Appeal, 117 Pa. 14, 29. If in a devise the word ‘heirs’ has other words of inheritance engrafted upon it, unless the latter are entirely inconsistent with the nature of the descent pointed out by the former, they will not convert it into a word of purchase (George v. Morgan, 16 Pa. 95, 108); for the word ‘heirs’ retains its significance, even though the effect be to make unmeaning other words in the will, thus, ‘words of superadded limitation alone are insufficient, as in.thfi case of a gift to A for life, remainder to the heirs of his body, and'to their heirs.forever.’’1 (Criswell’s Appeal, 41 Pa. 288, 291; also see cases cited in Grimes v. Shirk, 169 Pa. 74, 88.) Here, the devise is to Mathew Harrison with remainder to his heirs, and ‘the roundabout way which the testator takes to say “heirs” does not affect the substance:’ McKee v. McKinley, 33 Pa. 92, 93.

“It may be that the testator’s particular intent was to give the first devisee not more than a life estate; but it is equally clear that his general intent was to constitute such devisee a source of inheritable succession; the latter, therefore, ‘took a fee under the u^eading-ruleJn_Shelley.!s ..Case as applied in this State’ (Lauer v. Hoffman, 241 Pa. 315, 317; Shapley v. Diehl, 203 Pa. 566, 569). We say that the intent to make the life tenant a source of inheritable succession is clear, because the technical words used demonstrate that design, and there is nothing within the four corners of the will sufficient to rebut it. There are no words of distributive modification; and under these circumstances ‘superadded words of limitation which import the same course of descent are inoperative: ’ ” Harrison v. Harris, 245 Pa. 397.

“Prima facie, ‘children’ is a word of purchase, and not of limitation, and uncontrolled by the context, must be so construed, but where it is clear that it is used in the sense of ‘heirs’ or ‘heirs of the body’ it must be so construed, and the intent of the testator be permitted, to prevail.

“Testator devised certain real estate to his daughter Mary ‘and her children, heirs, executors, administrators and assigns, to her and their use and benefit forever, excepting thereof only the one-third of the income for the use of my widow during her lifetime as before mentioned.’ Held, that the daughter took an estate tail in the real estate which was enlarged to a fee simple under the Act of April 27, 1855, P. L. 368:” Asper v. Stewart, supra.

“It is well established in Pennsylvania that, ‘When a life estate is devised to a person, and in the same will an estate is limited “mediately or immediately to his heirs in fee or in tail, . . . ‘the heirs’ are words of limitation, not of purchase,” and the devise to the first taker is enlarged to a fee.’ . . . Before a ‘devise to one and his heirs’ is removed from the rule in Shelley’s Case, on the ground that the heirs take directly from testator, they must take independently of the fact that they are heirs of the person named as life tenant; that is to say, it must affirmatively appear that the word ‘heirs’ was used simply as a convenient way of designating testator’s ultimate devisees, and it must not appear, as here, that he treated the first devisee as a source of inheritable succession: Shapley v. Diehl, 203 Pa. 566.” Lyman v. Lyman et al., 293 Pa. 490, 492, 495.

“In determining whether the rule in Shelley’s Case is applicable the test is how the donees in remainder are to take. If as purchasers under the donor then the particular estate is limited by the literal words of the deed and the rule in Shelley’s Case has no application. But if the remainder-men are to take as heirs to the donee of the particular estate, then what has been called the superior intent as declared in Shelley’s Case operates and the first donee takes a fee, whatever words may be used in describing the estate given to him. ‘The inheritance in remainder must be given to the heirs of the grantee of the estate for life, as heirs, or the rule has no applicability to the case. ... It is always therefore, a precedent question in any case to which it is supposed the rule is applicable whether the limitation of the remainder is made to the heirs in fee or in tail as such, and in solving this question the rule itself renders no assistance. It is silent until the intention of the grantor is ascertained.’ ”

“A grant to a son ‘for the term of his natural life and at his death to his children or heirs,’ vests in the son a fee under the rule in Shelley’s Case.

“The rule in Shelley’s Case is a rule of law, not a rule of construction and where a case falls within it, it applies inexorably without reference to intent:” Shapley v. Diehl, 203 Pa. 566.

In the instant case, testator, in the second provision hereinbefore mentioned, provides that should any of his children, naming them, die without issue, the share of such one shall go to the others who survive, but should any of them die leaving issue, the said share shall go to the said issue and assigns forever; and in the third provision, he omits the word “issue” and provides that upon the death of any of his children to whom he has given the use of real estate, the same shall be used by them respectively during their lifetime and then go to their children, heirs and assigns forever.

Similar usage of the words “issue, children, heirs and assigns” seems to have been construed and interpreted by the courts of this state. In the case of Haldeman v. Haldeman, 40 Pa. 29, a case in which the facts are very similar to those of the instant case, the following provision was submitted for interpretation: “The residue of my estate, real, personal, and mixed (being much the largest portion), I devise, leave, and will to all my children, share and share alike, with this reservation in regard to my three daughters, Sarah, Mary, and Susan, I will, direct, and charge my executors or the survivors of them, to account for and pay over half-yearly to Sarah, Mary, and Susan, and to each of them, during their natural lives, the income or profit arising out of each of their share of the residue, and after the death of either, then to descend and go to the child, and, if children, share and share alike. Should, however, either of my daughters, Sarah, Mary, or Susan, die, and leave no lawful issue, then such share or portion is to fall hack again to the residue and form a part of the same.”

Justice Strong, in his opinion, interpreting this provision of the will, says:

“By the clause in his will devising the residue of his estate, the testator gave to his sons a fee simple. But it is clear that he did not intend to place his daughters precisely upon the same footing. True, there are general words of devise to all his children. They are coupled, however, with a reservation as to the shares of the daughters. The rents, issues and profits of each of those shares are given to the daughter for her natural life, and after her death, the share is required to descend to her child, and if children, to them share and share alike. The will then directs that if either of the daughters should die and leave no lawful issue, the property shall fall back into the residue of the estate. The beneficial interest is thus limited to each daughter for her natural life. It is not, as was supposed in the court below, the case of a gift in fee, with a subsequent attempt to take away some of the qualities of a fee, or to direct the manner of its enjoyment. This will, like all others, must be construed, with every part of it in view, and so as to give effect to the testator’s whole intention, unless it be in part contrary to law, or impossible. The construction given by the court below ignores no inconsiderable portion of the testator’s language. Although it is true that a testator, after having given a fee simple, cannot denude it of its nature and properties; in other words, cannot make a fee something else than that which the law recognizes as such, yet he may devise a less estate.
“He may restrain the generality oí a devise, by subsequent expressions, and convert that which otherwise would have been a fee simple into an inferior interest; and more frequently in this mode than in any other is a particular estate given. A reduction of the quantum of the gift is allowable, while all attempted alterations of its qualities must prove inoperative. Even the Act of Assembly which enacted that all devises of real estate shall pass the whole estate of the testator in the premises devised, although there be no words of inheritance or perpetuity, recognizes the power of a testator to restrict the generality of his gift, for it adds, ‘unless it appears by a devise over, or by words of limitation, or otherwise in the will, that the testator intended to devise a less estate.’ Here, there is not only an express limitation of the duration of the estate to the natural life of the daughters, but a remainder over, immediately after the decease of each daughter to her child or children, with a direction that on the death of such daughter without leaving lawful issue, the property devised shall fall back to the residue of the testator’s estate, and form part of the same. In other words, the will directs that the devise shall lapse in case the daughter shall die without leaving lawful issue.
“The devise was to each of the daughters for life, with remainder to the child or children of the first taker, share and share alike, but without any superadded words of limitation. The words ‘child or children’ by which the remainder-men were described, are, in their usual sense, words of purchase, and are always so regarded unless the testator has unmistakably used them as descriptive of the extent of the estate given, and not to designate the donees. But they may be used as words of limitation. Mr. Hayes, in his Elementary Essay (page 35), asserts that the rules of construction freely permit the use of the words ‘heirs of the body,’ or ‘issue,’ in the limited sense of ‘children,’ in the comprehensive sense of ‘heirs of the body;’ those rules, or rather, the fundamental principle of legal interpretation requiring only a clear explanation to justify a departure from the ordinary meaning, imposing on those who would translate the term, the onus of producing an express warrant under the hand of the author of the gift. Wherever, therefore, in the devise of a remainder to the ‘child’ or ‘children’ of the first taker, it is thus made clearly to appear that those words are used in the sense of ‘issue,’ or ‘heirs of the body;’ they are to be treated as describing lineal succession to an entail. Cases are numerous of devises to one for life, or for life only, with remainder to his ‘son,’ or ‘first son,’ or ‘eldest son,’ in the singular number (all properly words of purchase), with a devise over in default of issue of the first taker, in which he has been held to take an estate tail, in order to let in other sons, who, without such a construction, would have been excluded. . . .
“Now, if this will be examined, it seems quite plain that the testator employed the words ‘child,’ ‘children,’ and ‘issue,’ indiscriminately, and all of them as meaning an entire line of lineal descent. He devised to each of his daughters for life, remainder to descend to the child or children, and the gift to lapse if the daughter should die and leave no lawful issue. The intent that the devise shall not lapse while lawful issue of the daughter remains, is evident. It is also evident that the point of time when the testator intended the estate given to the daughter and to her child or children to cease, and when the property was intended to fall into the residue of his estate, is the same. The termination of the estate and the lapse, were in his mind contemporaneous. Here he uses the words child, children, and issue, as meaning the same thing. And we think he used them all as meaning ‘heirs of the body,’ and not as descriptive merely of individuals. . . .
“Here is no devise over after the land ‘descends’ to the child or children. The phrase, ‘should, however, either of my daughters, Sarah, Mary, or Susan, die, and leave no lawful issue,’ is not introductory to any ulterior devise. Manifestly, the only purpose of the testator, expressed in the sentence containing it, was to declare anew the duration of the interest he had previously given. In doing so, he has defined the sense in which he had used the words child and children, and shows an intent to express hereditable succession. For if in this will, the word ‘issue’ means ‘child’ or ‘children,’ instead of those words meaning ‘issue’ in the sense of ‘heirs of the body,’ the devise must lapse on the death of any of the daughters without leaving a child, though she should leave a grandchild. This was not clearly the testator’s intention. The true construction of the will then is, that it devises to the daughters for life, with remainder to their issue, and in default of issue the gift is to lapse. This is only because the testator has defined the word child as meaning issue. The devise is then an estate tail, which, under our Act of 1855, is to be construed as a fee simple. We do not think that any such trust was created by the will as to prevent the operation of the rule that an estate for life with a remainder to the issue of the first devisee, is an estate tail in law.”

In Vilsack’s Estate, 207 Pa. 611, the following provision from the will of George Vilsack, deceased, was interpreted:

“I give and bequeath to my beloved wife, Katherine, all my real and personal estate during her natural life, and at her death, I give the proceeds or interests thereon to my sons, George and Siebol, and my daughters, Elizabeth and Catherine, during their natural lives, share and share alike, and after the death of either of the above named sons or daughters I give and bequeath to their child or children (should they leave any children at their death) the share held by my sons and daughters at the time of his or her death, but should neither of my sons or daughters leave no heirs, then their share is to be divided between all of my grandchildren share and share alike.”
“The question raised by the petition and answer is whether the children of testator take an estate in fee. After the death of his wife he gave his estate to his sons and daughters during their natural lives, and after their death to their children, should they leave any. Had he stopped here, there could be no question that the word 'children’ was used in its ordinary sense as a word of purchase, and that his sons and daughters only took a life estate; but if any of them left no children, there would be intestacy as to this share. This, however, does not seem to have been his intention, as he next provided that if any of his sons or daughters left no heirs, their share was to be divided share and share alike between all of his grandchildren. If the word ‘heirs’ here means children alone, and a son or daughter died, leaving no children, but grandchildren, such grandchildren, being the great-grandchildren of the testator, would be disinherited, as grandchildren do not take under a devise to children. ... In doubtful cases such a construction should be adopted as would distribute the estate as nearly as possible according to the intestate laws, the word ‘heirs’ we think therefore should not be construed .as synonymous with ‘children.’ That it was not used in its general sense is evident from the fact that the limitation over is to testator’s grandchildren, who would be the collateral heirs of a deceased grandchild not leaving lineal heirs. It seems then that the testator intended here to limit the estate given to his children to their lineal heirs, or issue, which shows also his intention to use the word ‘children’ in its comprehensive and extended sense, meaning issue or heirs of the body. If this construction be correct the gift then is to his children for life with remainder to the heirs of their bodies or their issue, which vested in the children a fee tail, enlarged by the act of assembly into a fee simple.”
“A devise of realty to one for life with the right to the proceeds, without the right of alienation, and after his death to ‘his children or legal heirs,’ vests in the first taker an estate tail, which under the Pennsylvania statute becomes an estate in fee simple:” Sheeley v. Neidhammer, 182 Pa. 163; Lauer v. Hoffman, 241 Pa. 315.

Analyzing and construing the provisions of the testator’s will in this case in thejight of-the authorities cited, it seems that the testator intended here to limit the estate given to his children to their lineal heirs or issue, which shows also his intention to use the word “children” in its comprehensive and extended sense, meaning issue or heirs of the body.

If our construction be correct, the gift, then, is to Frank E. Johnson for life, with remainder to his issue, children (the heirs of his body) and assigns forever, which vested in the children a fee tail, enlarged by the act of assembly into a fee simple in the first donee, Frank E. Johnson.

Adjudication.

' Now, August 4, 1930, the court finds as follows:

1. That Frank E. Johnson, under the last will and testament of his father, William F. Johnson, deceased, became vested with a fee simple title to the lands devised him in said will, and which said lands are fully and completely described in the petition filed in this proceeding.

2. That by deed of general warranty made, executed and delivered by Frank E. Johnson and wife to Frank Stewart, a fee simple title to said lands was conveyed to the said grantee, and that a fee simple title to said described lands is now vested in petitioner, Frank Stewart.

3. That the decree of the Orphans’ Court of Crawford County appointing a trustee under said will of William F. Johnson, deceased, and authorizing said trustee to deliver a deed for said described lands upon payment to it of the purchase money, is unnecessary and superfluous, and the said decree and appointment is hereby vacated and set aside.

4. That the costs of these proceedings be paid by petitioner.

Prom J. Perry Eckels, Meadville, Pa.


source: Caselaw Access Project

author: Coughlin, J.,

license: Public Domain

text:
    In re Totores.

      Robert L. Coughlin, for petitioner; Neil Christman, for respondent.
    August 28, 1930.
   Coughlin, J.,

Victoria Totores having been adjudged a feeble-minded person in 1922, confined in the Retreat Hospital in Luzerne County, of which she was a resident, and being a person of property, respondent was appointed her guardian by the court of common pleas of said county.

The cost of her maintenance was paid to the State of Pennsylvania and the Central Poor District of Luzerne County by her guardian, the respondent, out of her funds in his hands — $7000 balance thereof still remaining. Michael Totores, the husband of Victoria Totores, was likewise supported by'the Commonwealth and said poor district at said hospital. Destitute at the time of his admission, and thereafter, he died on July 22, 1929.

This rule is to compel the payment by respondent of maintenance for said Michael Totores out of funds of said Victoria Totores in his hands. The court of quarter sessions alone has jurisdiction to compel support of others by those legally liable for it. Lunacy proceedings are creatures of the common pleas, and the statutes commit to the guardian the management of the estate of the ward. The custody, therefore, of said estate is clearly within the jurisdiction of the court of common pleas appointing said guardian: Komarnicki’s Case, 3 D. & C. 603. Where liability exists against one deceased, the orphans’ court has jurisdiction: Roberts’ Estate, 30 Pa. C. C. 383.

Under the Act of June 13, 1836, P. L. 541, certain persons were made liable for the support of poor and destitute of certain defined relationship at such rate as the court of quarter sessions should order. Although the said Act of 1836 provided that the court of quarter sessions should order and direct the rate of payment, the legislature enacted the Act of April 15, 1857, P. L. 191, again giving the court of quarter sessions jurisdiction. The Act of April 6, 1905, P. L. 112, added the wife as one liable for the support of a husband; the liability and the rate of maintenance to be fixed by the court of quarter sessions. The Act of June 15, 1911, P. L. 973, provided for the enforcing by attachment of orders made for maintenance by the court of quarter sessions.

The Act of May 14, 1925, P. L. 762, reenacting or modifying said earlier acts, provided in section 1012 as follows: “The . . . wife ... of every poor person shall at their [her] own charge, being of sufficient ability, relieve and maintain such poor person at such rate as the court of quarter sessions of the county where such poor person resides shall order and direct.”

It is apparent that the court of quarter sessions is given jurisdiction to determine the liability for the support of others under these statutes and to enforce the order by attachment. In the case at bar, however, the liability, if any, is against one mentally incompetent, for whom a guardian has been appointed by the eourt'of common pleas, and whose account is within its jurisdiction. It would appear that such an order ought to be made by the court of common pleas for the payment in behalf of another, only after the liability and amount thereof has been established by proceedings in the quarter sessions court as provided by statute. In the present ease this liability has never been so established.

Furthermore, the acts in question are entirely silent as to whether an order can be made by the court providing for prior support or past maintenance of others. The words used are: “shall at their own charge . . . relieve and maintain. . . .” Wertz v. Blair County, 66 Pa. 18, has been cited as the authority for payment of back maintenance. In that case an insane pauper was committed to the state lunatic hospital, at the expense of the county, by the quarter sessions as unsafe to be at large. The county having paid for his maintenance, suit to recover from the father, who had sufficient ability to maintain his insane pauper son, was brought. Suit was brought in assumpsit. The Supreme Court said in that case: “There can be no doubt of his ultimate liability, but the question before us is, whether this is the proper form of proceeding. We think not. The proceeding should be in the Court of Quarter Sessions, which by the Acts of 1836 and 1857, have ample powers to make the proper orders and decrees, and to enforce them.” The question of jurisdiction rather than past maintenance was the point decided in this case.

There appears no authority in the statutes referred to to make a retroactive order upon the part of the court of quarter sessions. The Matter of Lucy Jones, 96 Pa. Superior Ct. 480, though not directly deciding the point, seems to sustain this view. The statutes authorizing the order are prospective in their operation. Certainly no authority exists for the court of common pleas to make such an order where the liability, as in the present case, rests on the statutes cited.

Under the law as it now stands, the quarter sessions are given jurisdiction to determine the liability of a wife for a husband, fixing the amount thereof and enforcing the same by attachment. Where the person liable is an inmate of a hospital for the insane, the proper representatives of said person should be brought upon the record in order that the rights of such person may be properly guarded. Such an order having been allowed, such representatives may then claim credit in their account before the court of common pleas, but the right to claim credit for money expended in support of others than the guardian’s ward must be predicated on an order of the court of quarter sessions.

There having been no order for maintenance in the present case by the court of quarter sessions, there is no authority upon the court of common pleas to now direct the payment. The liability has never been established as provided by law, nor do we find in the statutes authority for the court of quarter sessions to direct the payment for said past maintenance. For the aforesaid reasons, we enter the following order.

Rule to show cause is dismissed.

From Frank P. Slattery, Wilkes-Barre, Pa.


author: Gray, J.,

text:
    Butler et al. v. Pennsylvania Railroad Company.

      Doty & Thornton and William L. Henry, for plaintiffs.

      Dalzell, Dalzell & McFall, for defendant.
    July 11, 1930.
   Gray, J.,

There were verdicts for the plaintiffs in the sum of $250 for each of them.

On the evening of Sunday, January 13, 1929, the plaintiffs, two young men, went from Pittsburgh to Canonsburg on a bus, leaving Pittsburgh at 7.30 o’clock, for the purpose of calling upon two young ladies. On arrival at Canonsburg at about 8.22 P. M., one of the plaintiffs called one of the young ladies whom they were about to visit on the telephone from a drug store, and on their route to make their call they stopped at the station of the Pennsylvania Railroad, and, according to their testimony, entered the waiting room for the purpose of making inquiry as to trains to Pittsburgh later in the evening. Their testimony is that the ticket window was closed. The testimony on behalf of the defendant is that it was open, but as the ticket agent went out on the platform to meet the 8.17 train from Pittsburgh on which the defendant’s officers arrived, we are of the opinion the jury were right in finding that the ticket window was not open when the plaintiffs entered. No doubt it was opened later when the ticket agent entered the station with the officers, whom he let into the baggage room, where they stayed observing the crowd in the waiting room. Plaintiffs testified that when they entered they found a group of young men formed in two lines. Craig walked around the line and to the ticket window, and finding it closed looked around for schedules or someone to whom he might make inquiry as to the running time of trains, when he was told by Elder, a railroad police officer, to get back into line. He protested against this order, and according to his testimony Officer Whetsel told Elder that Craig had just come in the door with Butler, and Butler was pointed out at the door of the waiting room as the one who had just entered the waiting room with Craig. According to Craig, he asked Elder what he was arrested for and he told him he would find out later, and both he and Butler were forced into line with the other men, perhaps about twenty, and marched to the police station by the four officers of defendant who were present and who had called the Canonsburg police who had come down to help the officers detain the group of men in the station. Plaintiffs were placed in cells in the police station, where they stayed for about an hour, until friends came and posted $10 forfeits for them. The next morning they were given a hearing on an information made against them by Elder, one of the railroad policemen, charging them with a violation of the Act of Assembly of April 14, 1905, P. L. 169, amended by the Act of May 23, 1923, P. L. 326. Aftér a hearing at which two of the railroad policemen of defendant who made the arrest testified, as did the defendant’s station agent at Canonsburg, plaintiffs were discharged on the ground of insufficient evidence to sustain the charge made against them.

Prom the testimony on behalf of the defendant it appears that for some time preceding the evening in question complaints had been made to the borough police by the defendant’s station agent about the conduct of a crowd of young men who made a practice of loitering in the waiting room of defendant’s station, especially on Sunday nights, the objectionable conduct consisting of offensive language and reported insults to women who came into the station for the purpose of taking a train or transacting other business there. It appears the police of the Borough of Canonsburg had made some effort to stop the nuisance, but unsuccessfully, and the station agent who testified at the hearing had reported this condition to the railroad police employed by the defendant, or some' of them, and the four who went to Canonsburg and arrested the plaintiffs went there on their own initiative, having first notified the Canonsburg police and asked for their cooperation. It appears the assistant to the station agent was in charge of the station at the time. He met the railroad policemen, and at their request let them into the baggage room of the station where they could observe the conduct of the crowd. One of the officers participating in the arrest did not at the time have a commission from the Governor as a railroad policeman, or if he did, it was not recorded in Washington County, as required by law, the arrest having taken place in Washington County. One of the railroad officers admitted that the badge required by law to be worn was not worn by him in plain view, but was on his vest under his coat, where it could not be seen. There is no testimony that the other officers wore badges, or if they did, where they wore them. Three of the arresting officers had commissions from the Governor and their commissions were properly recorded in Washington County.

The sole basis for the motions for judgment non obstante veredicto is that the arresting officers were acting as public police officers in maintaining the public peace and order, and that, therefore, the defendant company is not responsible for their actions.

The contention of the plaintiffs is that while three of the officers were commissioned railroad police, they were acting in a private capacity as agents of the defendant in the protection of its property at the instigation of an employee of defendant and within the scope of their authority as employees of defendant, and that, therefore, defendant is liable for the arrest and imprisonment of plaintiffs by these four officers.

In the act of assembly hereinbefore cited, which it was charged plaintiffs had violated, in section one thereof, it is provided that it shall be “unlawful for any person wilfully to enter upon any land, within the limits of this Commonwealth, where the owner or owners of said land has caused to be prominently posted upon said land printed notices that the said land is private property, and warning all persons from trespassing thereon, under the penalties provided in this act.”

Section two provides that violators of this law “shall be liable to a penalty of not exceeding ten dollars, together with the costs of prosecution, to be recovered before any magistrate or justice of the peace, as fines and penalties are by law recoverable; and, in default of payment of said fine and costs, the party convicted shall be committed to the county jail.”

Section three provides that such penalties “shall be paid to the school fund of the district in which the trespass was committed.”

We learn from the Act of April 15, 1835, P. L. 291, and from the Act of April 5, 1849, P. L. 409, that suits for the recovery of fines and penalties may be maintained before any justice of the peace or alderman in like manner as suits for debts under the sum of $100 may be maintained.

And from the Act of March 20, 1810, 5 Sm. Laws, 161, and the Act of July 12, 1842, P. L. 339, section 24, in cases where execution cannot be issued against the body of defendant, actions before justices of the peace shall be begun by summons.

By the Act of January 12, 1705, 1 Sm. Laws, 25, section 4, it is enacted that:

“No person or persons, upon the first day of the week, shall serve or execute, or cause to be served or executed, any writ, precept, warrant, order, judgment or decree, except in cases of treason, felony or breach of the peace; but that the serving of any such writ, precept, warrant, order, judgment or decree shall be void, to all intents and purposes whatsoever; and the person or persons so serving or executing the same shall be as liable to the suit of the party grieved, and to answer damages to him for doing thereof, as if he or they had done the same without any writ, precept, warrant, order, judgment or decree at all.”

The officers who made the arrest in this case were commissioned and employed by the defendant pursuant to the Act of February 27, 1865, P. L. 225, which provides that the Governor may issue commissions to what are called railroad policemen, to be employed and paid by the railroad making application for such appointment. This act requires the commissioned policeman to take an oath of office before a recorder of deeds and that a certified copy of this oath with the commission shall be recorded in every county through or into which the railroad for which such policeman is appointed may run, and in which it is intended the said policeman shall act; and such policemen, so appointed, “shall severally possess and exercise all the powers of policemen of the city of Philadelphia, in the several counties in which they shall be so authorized to act as aforesaid.” Said act further provides that, “Such railroad police shall, when on duty, severally wear a metallic shield, with the words ‘railway police,’ and the name of the corporation for which appointed inscribed thereon, and said shield shall always be worn in plain view, except when employed as detectives.”

This recitation of the law reveals that the arrest of the plaintiffs by the four commissioned officers employed and paid by defendant on Sunday was wholly illegal and unauthorized by law. These two plaintiffs were not members of any group which had annoyed defendant’s employees and patrons nor the public. They were not residents of Canonsburg. They were in no sense responsible for the complaint which had been made to the defendant’s officers for invasions of the defendant’s property at Canonsburg. They were guilty of no offense, of no violation of the public law, nor any trespass on the defendant’s property. They went into the defendant’s station'for a perfectly legitimate purpose and were arrested and imprisoned without any inquiry made of them as to the reason for their presence there, without any opportunity to make an explanation, and against their protests. They were deprived of their liberty, locked in cells in a police station, required to give a forfeit for their appearance, and a charge made against them of trespassing on defendant’s property, from which charge they were exonerated because defendant’s employees could not offer any testimony against them. There is no justification for their arrest and imprisonment, and it was illegal from beginning to end. They were outraged without any legal or other excuse.

The defendant desires to escape responsibility on the ground that these officers employed and paid by it, who had commissions from the Governor of the Commonwealth, were presumptively acting in their public capacity, were in fact exercising a public employment for the redress of a wrong against the public, and that they were exercising no private employment for the defendant for the protection of its property or the furtherance of its business. Counsel for defendant relies upon the authority of Naugle v. Penna. R. R. Co., 83 Pa. Superior Ct. 528, and upon Fagan v. Pittsburgh Terminal Coal Corp., 299 Pa. 109, and Bunting v. Penna. R. R. Co., 284 Pa. 117.

After consideration of these and other well-known cases, we have come to the conclusion this case is rather to be governed by the principles recited in Tufshinsky v. P. C. C. & St. L. Ry. Co., 61 Pa. Superior Ct. 121; Finfrock v. Northern Central Ry. Co., 58 Pa. Superior Ct. 52, and Kayser v. Penna. R. R. Co., 10 D. & C. 799, and that defendant should be held responsible for the acts of the officers. The four officers who made the arrest and caused the imprisonment were stationed at Pittsburgh and went from Pittsburgh to Canonsburg for the purpose of observing conditions at the defendant’s Canonsburg station and preventing objectionable conduct in that station by persons who had been reported to be loitering in the station and annoying intending passengers. One of the men making the arrest was not authorized to act as a railroad policeman in Washington County on the day in question, because if he had a commission it was not recorded there as required by law, and there is testimony he had no commission at the time. One of the other officers was not wearing his shield in plain view, as required by law when on duty, and, therefore, it may rightfully be concluded he was not on duty at the time as a commissioned officer under the law. There is no proof that the other two officers were wearing their shields as required by law, and as it was incumbent upon defendant to prove that these employees of it were acting as public policemen, if it wished to be exonerated from responsibility for them, and it did not offer any such proof, it might well be concluded that none of these officers were qualified to act as public policemen under the law, and, therefore, were not so acting. The proof is, and we may assume the finding of the jury was, that the four officers left Pittsburgh without any orders from any superior officer and without the knowledge of any superior officer, on their own volition, to answer the call of the station agent of defendant at Canonsburg, that the defendant’s business there was being interfered with and its property trespassed on by a group of idlers who congregated in defendant’s station and annoyed intending passengers. The officers notified the Canonsburg police of their intended business, but did not notify the attendant in charge of defendant’s station at the time, but he was present at the time the train on which the officers traveled arrived, and assisted them in their project in secreting them in the baggage room, he himself taking part in observing the crowd. The defendant’s officers arrested and restrained the two plaintiffs along with a large group of men in the station and then the local police joined them and the defendant’s officers and the local police marched the plaintiffs and the others along the thoroughfares of Canonsburg to the police station, where they were locked in cells, and at the instigation of one of the defendant’s officers compelled to make a deposit of $10. After an hour or so in the cells they were able to enlist friends who provided forfeits for them and they were released until next morning. One of defendant’s officers made charges against the plaintiffs of trespassing on defendant’s property contrary to the terms of the Act of 1905 hereinbefore stated, and as stated, at the hearing two of defendant’s officers and the defendant’s station agent, who was not present the evening before, testified against plaintiffs, and notwithstanding this they were discharged.

It should be noted that the Act of 1905 does not make it a crime to trespass on posted premises, but provides for a small penalty which, according to law, must be recovered in a civil action before a justice of the peace or alderman. Plaintiffs, therefore, were not charged with the commission of a crime, although in form a criminal charge was made against them. They were arrested and discharged as criminals. They had committed no offense against the public and were not charged with any offense against the public. Defendant’s own employees, who happened to be commissioned as railroad policemen, charged plaintiffs with trespassing upon defendant’s premises contrary to a statute which is manifestly for the benefit of owners of real estate, and not for the public benefit. There was no proof that the defendant’s premises were prominently posted with printed notices that they were private property warning persons against trespassing thereon, as provided by the Act of 1905. The only testimony offered by the defendant on this subject was that the premises were posted with “No trespassing signs.” This is certainly insufficient to show they were posted in such a way as to warrant the charge made against the plaintiffs, even if they had been guilty of trespassing, which the jury found they were not. As stated in Finfrock v. Northern Central Ry. Co., supra, “The prima facie presumption that such officer acted solely on his own accord as a peace officer may be rebutted by evidence warranting the jury in finding that he was at the time engaged in special service for the company, such as guarding its property or enforcing obedience to its rules. 'If in such case it appears that the wrongful act was within, the scope of such special service or employment, the fact that he also held a commission from the state will not bar recovery from the company.”

And again in that case the court said: “Another qualifying principle recognized by the decisions is, that the railroad company may be held liable for the wrongful act of the policeman if it was instigated by the company or by some of its officers or employees acting within the scope of their employment.”

We are of the opinion there was sufficient evidence to warrant a finding that the officers were engaged in a special service for the defendant in the protection of its property and that their acts were in the scope of the special employment, and, also, that the acts of the officers were instigated by an employee of the defendant within the scope of his employment.

In the Fagan case the Supreme Court, in reversing the judgment of this court, among other things, said: “The conduct complained of was criminal in its nature, committed in their presence on the public highway, and to restrain its continuance they could act without warrant.”

And again the court said: “In the present case, the arrest was not made to protect the property of the company, to compel obedience to any of its rules, or made at the instigation of its authorized employees.”

And again the court said: “Plaintiff was here charged with a criminal offense and arrested by duly authorized officers.”

And again the court said: “The disorderly conduct occurred on a public highway, and there was no evidence to show that the company directed, instigated or took part in the apprehension or detention of Fagan. It was not made because of a violation of the rules of the coal company, or to protect its property, nor does it appear that any wrongful act was ratified by the defendant or one acting with its authority for it.”

The distinction between the Fagan case and the present appears from the recital of the testimony already given.

In Tufshinsky v. P., C., C. & St. L. Ry. Co., supra, an umbrella mender about sixty years of age was seated in the waiting room of defendant’s station waiting for a train. He was eating his lunch and dropped crumbs on the floor of the station. A duly authorized police officer of the defendant arrested him and took him to the office of a justice of the peace, in whose office he was detained for several hours. The justice, on the testimony of the officer, committed him to the jail on a charge of disorderly conduct and fined him $5 and costs. There was no evidence of disorderly conduct or that plaintiff resisted arrest, although the arresting officer attempted to make out a case of disorderly conduct against the man arrested. A judgment for the plaintiff was affirmed, as it seems to us the judgment in this case should be.

Order.

And now, to wit, July 11, 1930, the motion for judgment non obstante veredicto is denied. From William J. Aiken, Pittsburgh, Pa.


author: Gest, J.,

text:
    Stiles’s Estate.

      John M. Dervin, for Henrietta G. Truitt.

      Roper & Caldwell, for estate of Frank P. Martin.

      Edward S. Lower, Jr., contra.
    April 17, 1931.
   Gest, J.,

The testator by his will devised a portion of his estate in trust for his daughter, Caroline, for her life, and after her death devised the same “to her five children by her second marriage with Theodore G. Goekeler, viz.: Harry Godfrey Goekeler, Mary Louisa Goekeler, Edward Stiles Goekeler, Caroline Stiles Goekeler and Bessie Goekeler, in equal portions, share and share alike and the survivors and survivor of them for the education, maintenance and support of such child or children of my said daughter by her second marriage until such child or children will have arrived at the age of twenty-one years, and when said child, if there should be but one, or said children, if there should be more than one, will have attained said age, respectively, then I give, devise and bequeath all that portion or share of my said real estate to the child or children of my said daughter by her second marriage, in fee simple, and the personal estate absolutely, share and share alike and the survivors and survivor of them.”

The will was made on April 26, 1883, and the testator died on January 3, 1885. In the meantime, his daughter, Caroline, had another child, Henrietta, born June 12, 1883, and Caroline having died in 1930, the estate became distributable. Henrietta claims to be entitled, her first ground being that the will was revoked as to her by her subsequent birth. This claim is fully refuted by the decision of the Supreme Court in Alburger’s Estate, 274 Pa. 10, and needs no further discussion. It is, however, urged that Henrietta is entitled as a member of the class composed of Caroline’s children. The Auditing Judge, however, correctly ruled that this was in no sense a class legacy, but a legacy vested in certain persons by name, and the learned counsel for Henrietta has referred to no cases which hold the contrary, nor have we been able to discover any.

The testator has, himself, here specified the exact number of persons whom he wished to benefit. He mentions them nominaUm, and by using the abbreviation “viz.,” which means “that is to say,” removes any doubt of his intention: Hull’s Estate, 21 Beav. 314. In Glanville v. Glanville, 33 Beav. 302, the testator bequeathed a legacy “to my four nephews and niece, namely, Robert, Richard, Francis and Margaret.” Another nephew, Thomas, was omitted in the description of the legatees, and was held to be excluded from participation.

The learned counsel for Henrietta, however, argued that the gift after majority of the children is made generally to the child or children of Caroline, share and share alike, indicating that the testator intended to include all the children of Caroline and failed to mention Henrietta because she was not then born. The Auditing Judge, however, correctly rejected this argument, saying that the entire clause relates to the five children and to no others, and that when the testator in the latter part of the paragraph speaks of the child or children of his daughter, he necessarily refers to the child or children specifically named in the earlier part of the same paragraph.

It is needless to conjecture why the testator wrote his will as he did, and we cannot rewrite the will so as to include in its provisions the grandchild whom the testator ignored. He might have changed his will so as to include her, for he lived for over a year after Henrietta’s birth, but he did not.

The exceptions of Henrietta G. Truitt are dismissed.

The questions raised by the exceptions of the administrator of Frank P. Martin do not merit discussion, as the Auditing Judge was clearly right.

All exceptions are dismissed and the adjudication is confirmed absolutely.


author: Lewis, J.,

text:
    Smith et al. v. Bergdoll.

      Edmonds, Obermayer & Rebmann, for plaintiffs.

      David R. Griffith, for defendant:

      March 18, 1931.
   Lewis, J.,

This matter came before the court on a rule to strike off a judgment for want of an appearance and to set aside the writ of inquiry, assessment of damages and writ of attachment sur judgment.

The facts are these: On January 31, 1929, plaintiff’s praecipe for summons in trespass and plaintiff’s statement of claim were filed simultaneously. The sheriff’s return shows that on February 6, 1929', he served the summons and a copy of the statement by “handing a true and attested copy of the within writ and a copy of the statement of claim to an adult member of defendant’s family at 52nd and Wynnefield Avenue.” On May 2, 1929, defendant filed a petition under the Act of March 5, 1925, P. L. 23, asking a rule to show cause why the service of the writ and the statement of claim should not be set aside. On October 4, 1929, this rule was made absolute. On June 30, 1930, an alias summons in trespass issued returnable the first Monday of August, 1930, which summons was personally served on defendant that same day. On December 23, 1930, no appearance having been entered for defendant, judgment was taken under the Act of June 13, 1836, P. L. 568. This act provides (section thirty-three) that “If the defendant in any writ of summons as aforesaid, shall not appear at the return day thereof, and the officer to whom such writ was directed, shall make return that it was served upon the defendant ten days before the return day aforesaid, it shall be lawful for the plaintiff, having filed his declaration, to take judgment thereon for default of appearance, according to the rule established by the court to regulate the practice in this respect.”

In the case before us, the writ returnable the first Monday of August was served on June 20th, well beyond the ten-day period specified. Judgment was taken on December 23rd, well beyond the quarto die post, the first possible day for judgment according to our practice. Defendant’s main reliance must, therefore, be on the construction of the Act of 1836. He contends that the declaration contemplated by the phrase “. . . it shall be lawful for the plaintiff, having filed his declaration, to take judgment . . .” must necessarily be a declaration valid in every respect. He likewise contends that defendant was first brought within the jurisdiction of the court on June 30, 1929, and that in consequence, the declaration filed January 31, 1929, is a mere nullity and as such insufficient to support a judgment.

In support of his argument, defendant calls to our attention First National Bank of Tyrone v. J. W. Cooke, 3 Pa. Superior Ct. 278, and Com. v. Bangs, 22 Pa. Superior Ct. 403. Both cases hold that inasmuch as a defendant is not technically within the jurisdiction of the court until actual service of the writ is obtained, an earlier service of the declaration is a nullity, at least so far as furnishing proper support for the entry of judgment for want of an affidavit of defense. Both cases, however, ignore completely the opinion of the Supreme Court in Gorman v. Hibernian B. & L. Ass’n, 154 Pa. 133. True, in this last-cited case service of the statement preceded service of the writ by but a few hours. Yet, in Loeb v. Allen, 32 Pa. Superior Ct. 137, decided three years after Com. v. Banks, supra, the Superior Court decided, basing its opinion directly, on Gorman v. Hibernian B. & L. Ass’n, supra, that earlier service of the statement is not a nullity, and that, the statutory period having elapsed, judgment may properly be entered for want of an affidavit of defense, and in Loeb v. Allen the statement was served twelve days before the writ. If further authority be necessary, Murta et al. v. Reilly, 274 Pa. 584, in which the statement was served approximately a month before the alias writ, completely disposes of all questions as to the validity of statements served before the actual service of the writ.

It may be noted in passing that the cases cited above all turn on the propriety of judgments entered for want of an affidavit of defense, a matter in which the exact time of service of the statement is of vital importance to defendant. On the other hand, in requiring the filing of a declaration before entry of judgment for the want of an appearance the legislature was in all probability consulting the convenience, not of the defendant, but of the prothonotary, who should, theoretically, at least, assure himself that the declaration contains a good cause of action before entering the judgment.

Whether or not this conjecture as to the legislative intention be correct, it is obvious that in failing to appear as commanded in the writ defendant is guilty of a mild contempt, and that the consequent summary entry of judgment is not to be defeated by technical objections to a declaration which defendant has not deigned to examine. Nor are we impressed by the objection to the verdict found by the sheriff’s jury, or to the assessment of damages by the prothonotary. The jury found damages aggregating $400. The distribution of this sum between the two plaintiffs is a matter of no moment to defendant. Obviously, the father, Walter R. Smith, is competent to satisfy the judgment so far as he is personally concerned therein, and counsel of record for the next friend is clothed with authority to receive and receipt for money due upon a judgment entered upon a verdict in suit for damages suffered by an infant. Payment by the defendant to the attorney of record is binding upon the infant: Stroyd v. Traction Co., 15 Pa. Superior Ct. 245. For the reasons above given, the rule to strike off the judgment, the writ of inquiry, assessment of damages and writ of attachment sur judgment was discharged.


author: Fox, J.,

text:
    Dauphin Deposit Trust Co., Executor, v. The Equitable Life Assurance Society of the United States.

      John B. Geyer and Paul G. Smith, for plaintiff.

      Snyder, Miller & Hull, for defendantAvyC .
    July 10, 1930.
   Fox, J.,

In this case the plaintiff’s statement of claim avers in substance that the defendant executed and delivered two contracts of life insurance with Edward M. Broomhall, therein named as the insured, thereby agreeing to pay to the assured’s administrator, executor, etc., as beneficiary the sum of $7500 on the one policy and $12,000 on the other, in the event of the death of the insured prior to May 11, 1923; that the stipulated premiums were duly paid, and that the said Edward M. Broomhall died testate on January 25, 1929, nominating the above mentioned trustee a^the-executor of his last will and testament, the two policies being in full force and effect at the time Of death, and upon demand defendant refused to make payment.

'/To this statement an affidavit of defense was filed which admitted the issuance of said contracts, the payment of the premiums, the death of the insured, letters testamentary issued to the plaintiff and demand for payment. Defendant denies, however, that it is indebted to the plaintiff in the sum of $20,000, or any other sum, saving and excepting only the amount of the premiums paid upon said policies; avers a legal tender by the defendant to the plaintiff on or about March 26, 1929, for the total amount of the premiums so paid with interest thereon, which was refused by the plaintiff; and sets forth as “new matter” in substance that the said Edward M. Broomhall procured the issuance of said policies of life insurance by the defendant by means of false and fraudulent- matfiriaJLrepresentations made by him to the defendant in his applications for the policies "of insurance on his life, in answer to material inquiries concerning his insurability before one of the defendant’s medical examiners, all in writing, which false answers were believed by the defendant and induced it to enter into the contracts; that the policies were in force until about March 1, 1929, when the defendant, on account of said fraud being discovered by it, elected,to r&sdnd the said contracts, and on March 26, 1929, notified plaintiff of its election to do so; that on April 2, 1929, when this action was instituted by the plaintiff therein, no policy contracts existed between the plaintiff and the defendant.

This matter now comes before us upon a motion to strike from the record a part of the affidavit of defense, to wit: “(a) The phrase ‘new matter’ found on page 3 thereof; (b) The endorsement on said Affidavit of Defense, as follows: ‘To the within Plaintiff: You are required to file a reply to the within new matter within fifteen days.from the service hereof. Geo. Ross Hull, Snyder, Miller & Hull.’ ”

The plaintiff admits the defense of fraud thus set up is new matter and must be specially, pleaded. It contends, however, that it is a denial only of the truthfulness of the answers contained in the application, which is a part of the contract and pleaded by the plaintiff, and, therefore, under section fourteen of the Practice Act of 1915, as amended by the Act of April 22, 1929, P. L. 627, although new matter, is not to be set up as new matter so as to require a reply by the plaintiff as provided for in section fifteen of the said act.

We do not agree with this contention of the plaintiff. The defendant has set up more than a denial of the averments of the truthfulness of the answers contained in the applications. He not only alleges the untruthfulness of the answers but that the insured knew them .to-be-untruthful and intended by the false answers to induce" the defendant to enter into the contract with him, which it did, and thereby worked such a fraud upon the defendant that the contracts may be avoided. It goes much further than merely a denial of the said averments contained in the application. It may be that in a case where such fraud is alleged in an affidavit of defense and set up as new matter, as in the instant case, in his reply, the plaintiff may admit the fraud averred and thus put an end to the case.

We have found no case nor have we been directed to any of our own state determining the question now before us under our Practice Act. That the defense set up here is new matter and should beiSpeciallWpleaJbd is well established: 21 R. C. L. 567; 49 C. J. 294; Pino v. Merchants Mutual Ins. Co., 92 Am. Dec. 529; Oak Lane Country Day School v. Virginia F. & M. Ins. Co., 8 D. & C. 194, in which Williams, J., has cited many pertinent authorities.

Wherefore, we are of the opinion that the averment of fraud is properly pleaded as “new matter” under sections fourteen and fifteen of the Practice Act, as amended, and under section seven of the said act the plaintiff, being an executor, must reply only as therein provided.

And now, July 10, 1930, upon due consideration, it is hereby ordered, adjudged and decreed that the motion to strike from the record the parts therein mentioned of the affidavit of defense is overruled, and that the plaintiff file a reply to the new matter within fifteen days from the filing hereof.

From Homer L. Kreider, Harrisburg, Pa.


author: Appel, J.,

text:
    Lamparter’s Estate.

      John A. Coyle and Zimmerman, Myers & Kready, for lien creditors.

      Guy K. Bard and Amos E. Burkholder, for exceptions.

      John E. Malone, for accountant.
    Oct. 30, 1930.
   Appel, J.,

J. George Lamparter died intestate Nov. 24, 1926, leaving to survive him a widow, Christine Lamparter, seven children and a grandchild as his heirs.

On Jan. 6, 1926, decedent, being then the owner thereof, conveyed to his daughter, Elizabeth D. Lamparter, two two-story brick dwelling houses in the City of Lancaster, with the ground thereto belonging, Nos. 723 and 725 East Orange Street. On the same day he conveyed to his son, George C. Lamparter, two dwelling houses in the City of Lancaster, with the ground thereto belonging, Nos. 229 and 231 Howard Avenue, and also a property on Locust Street in said city. Although at the time these conveyances were made the decedent was married, his wife did not join in either of the deeds.

It appeared at the death of the decedent that his estate was not sufficient to pay his debts. It being alleged that at the time the above conveyances were executed decedent was insolvent, two creditors, the Conestoga National Bank of Lancaster, Pa., and the Agricultural Trust and Savings Company of Lancaster, Pa., having preserved the lien of their debts by bringing suit within the year, each filed a bill in equity to set aside the above conveyances as being fraudulent in law and void as against creditors. These proceedings are entered in Equity Docket No. 7, pages 382 and 396, Common Pleas of Lancaster County. The above cases being heard together, the following decree was entered by the Court of Common Pleas sitting in equity:

“And now, March 9,1929, it appearing to the court that the hill of complaint in the above case was duly served, and that defendant, George C. Lamparter, has not appeared or filed any answer, and the other defendants named therein appeared by counsel, but have filed no answer to the bill, and that on March 3, 1928, on motion of the plaintiff, the allegations of the bill were taken pro confesso for want of an answer to said bill, it is ordered and decreed as of March 3, 1928, nunc pro tuno, that each and all of the conveyances described in the said bill of complaint were fraudulent and void as to the plaintiff; and further that the defendants Elizabeth D. Lamparter and George C. Lamparter, shall each forthwith execute and deliver to Catharine B. Lamparter, administratrix of J. George Lamparter, also known as George Lamparter, deceased, a deed of conveyance of all their right, title and interest in the respective premises conveyed by the said J. George Lamparter, also known as George Lamparter, to them respectively as averred in said bill of complaint for the purpose of having the said premises sold under an order of the Orphans’ Court for payment of debts of the said J. George Lamparter, also known as George Lamparter, which may legally share in any proceeds of said decedent’s real estate. By the Court.”

In accordance with the above decree, the several properties were reconveyed by the grantees to the administratrix of the decedent. They were afterwards sold under order of the orphans’ court for the payment of such of decedent’s debts as were a lien on his real estate.

In the second account of the administratrix now before us, she charges herself with the proceeds of the sale of properties Nos. 229-231 Howard Avenue, Lancaster, Pa., $3800 (these were the Howard Avenue properties conveyed to George C. Lamparter), and also with the proceeds of the sale of the property on East Orange Street, $4980 (the property conveyed to Elizabeth D. Lamparter). The Locust Street property was not sold by the administratrix, and it would seem that George C. Lamparter could have the same reconveyed to him.

The balance in the hands of the accountant was $8177.30, all being the proceeds of the sale of the above properties conveyed in pursuance of the decree in the equity court. In the distribution the court, after awarding the Conestoga National Bank and the Agricultural Trust and Savings Company the balances due them (these being the only creditors that had preserved their liens on the real estate), awarded one-third to the widow, and, after the payment of a counsel fee in the equity proceedings, divided the balance among the seven children of the decedent. It is agreed the grandson was overlooked. He would undoubtedly participate as an heir with the children, unless the legal conclusion of the court, under the facts, bars all except Elizabeth D. Lamparter and George C. Lamparter, as will hereafter appear. Exceptions were filed, alleging that the court erred in not awarding to Elizabeth D. Lamparter and George C. Lamparter the entire balance as their proportionate interests may appear. It is claimed that under the above decree their conveyances were fraudulent only as to creditors and were valid against the heirs of the decedent. They contend, therefore, that the balance in hand, after the payment of such debts as were a lien on the real estate, and one-third to the widow, equitably belongs to them. This calls for a determination of the legal effect of the decree of the equity court hereinbefore recited in full.

Generally speaking, a claimant in the orphans’ court must claim either as creditor, legatee or next of kin, and an adverse claim of ownership of assets of a decedent cannot be asserted in the orphans’ court: McBride’s Appeal, 72 Pa. 480; Moore’s Estate (No. 1), 211 Pa. 338. There are, however, exceptions to this general rule, and it has been held that a mistake in erroneously including in the account something shown to belong to another may be corrected (Malone’s Estate, 8 W. N. C. 179), and that trust property may be followed anywhere: McCarron’s Estate, 15 W. N. C. 485. It has also been held that the orphans’ court, “within the scope of its jurisdiction, has all the powers of a court of equity (Dundas’s Appeal, 64 Pa. 325; Carney v. Merchants’ Union Trust Co., 252 Pa. 381), and appeals from it are to be heard and determined by us ‘according to the justice and equity thereof:’ . . . Shelley’s Estate, 288 Pa. 11:” Nimlet’s Estate, 299 Pa. 359.

The bill of complaint in the equity proceeding was instituted by two of decedent’s creditors. When the grantees in the deeds were directed to reconvey the real estate to the administratrix for the purpose of selling it to pay debts, this was done for the benefit of the two creditors — complainants in the bill in equity. It was decided in Fowler’s Appeal, 87 Pa. 449, syllabus 4: “The deed in controversy was only void as to the complaining creditors. The quiescent creditors, if there be any, cannot take advantage of this proceeding, and after the payment of the claims of the complainants in the bill, the land should be relieved from the injunction.”

“Generally speaking, property which has been assigned or conveyed by the deceased, after the manner of a gift, confers a title upon the donee or grantee subject to the demands of prior existing creditors of the estate:” Chester County Trust Co. v. Pugh, 241 Pa. 124, 128.

Under the Fraudulent Debtors’ Act, a deed made by a decedent in his lifetime was a fraud on his creditors if insolvent at the time of the conveyance. The deed could be declared fraudulent on petition of creditors, as above stated. It could be declared fraudulent on the complaint of the administrator if the deceased died insolvent, as decided in Chester County Trust Co. v. Pugh, supra.

In the light of the above authorities and others that might be cited, we are justified in drawing the following legal conclusions: As against all persons except his creditors, the decedent’s deeds to two of his children were perfectly valid. He had a right to sell or give to any of his children any or all of his real estate; and none of his children could challenge the validity of the conveyance, conceding, of course, his competency and the absence of duress. Their invalidity related only to his insolvency and his creditors. The complainants in the bill in equity might very well have asked from the court a decree directing them to pay these debts, and if this had been done and the debts had been paid, the integrity of the deeds would have been maintained and the title to the real estate would have remained in the grantees. For undoubtedly, after the decedent’s debts .were paid, as against all the world, including his heirs, the title of the grantees was valid. This being so, can it be held that they lost their equity in the real estate because they obeyed the decree of the court of equity and reconveyed the properties to the administratrix of the decedent to sell to pay his debts? The complainants might have had the court in its decree reserve to the grantees all equity remaining after the payment of decedent’s debts. Conceding that the grantees had a vested interest in the land after the payment of the decedent’s debts and not required for that purpose, it must follow they have the same right to the proceeds of the sale of the real estate not needed for decedent’s debts. This latter conclusion follows as a legal consequence of the former. To hold otherwise would be inequitable and unjust. As the other heirs raised no objection to the deeds made in the lifetime of decedent, so they can have no valid objection to the title of the grantees to the balance of the fund now being distributed, which represents their equity in the real estate after it has been sold to pay the decedent’s debts. There was error in the distribution. The balance should be awarded to George C. Lamparter and Elizabeth D. Lamparter in the proper proportions.

The exceptions are sustained and distribution will be made accordingly.

Reformed distribution.

To Zimmerman, Myers & Kready and John A. Coyle, Esqs., counsel fee.................................. $200.00

To Clerk of Orphans’ Court, costs.................... 10.50

To the Agricultural Trust & Savings Company, creditor. 2493.51

To the Conestoga National Bank of Lancaster, Penna., creditor ........................................... 3452.62

To the Register of Wills, transfer inheritance tax....... 10.80

To Christine Lamparter, one-third..'........... $740.22

Less transfer inheritance tax................ 10.80

729.42

To George C. Lamparter, creditor... 554.18

To Elizabeth D. Lamparter, creditor 726.27

$8177.30

As reformed, the adjudication is confirmed absolutely.

From George Ross Eshleman, Lancaster, Pa.


author: Davison, P. J.,

text:
    Sheely’s Estate.

      J. H. Light and William S. Homier, for accountant.

      G. W. Atherton, for other heirs.
    January 10, 1931.
   Davison, P. J.,

Jasper N. Sheely, an aged resident of Antrim Township, Franklin County, and a veteran of the Civil War, died in Florida on January 10, 1929. He was survived by a widow, his second wife, and a number of children by his first wife. His wife was with him in Florida when he died, and his body was kept in a vault there until the latter part of February and then brought to Greencastle, Pa., by his widow and buried in the National Cemetery at Gettysburg. Jasper N. Sheely had been a soldier in the Civil War, and, hence, was entitled to the privilege of burial in that cemetery and his wife could be buried there with him. At the time of his death and for some years prior thereto Jasper N. Sheely had owned a lot in Cedar Hill Cemetery, near Greencastle, in which his first wife was buried and on which he had erected a monument, before his second marriage, bearing the name Sheely in large letters at the top, his own name and date of birth and a blank for date of death, and the name and dates of birth and death of his first wife below. There is no evidence to show if there was room on that lot for the burial of his second wife or not. In her first and final account as administratrix of the estate of said Jasper N. Sheely, the widow, who was the accountant, took credit for funeral expenses, including tombstone, amounting to $744.15. Exceptions were filed to this item and the auditor surcharged the accountant with $234.49 of that item, holding these expenses excessive and unwarranted, and basing the surcharge on these items: Items in bill of undertakers in Florida, Thacker & Vangilder, not itemized, $24.80; hearse to Gettysburg, $29.60; three cars at funeral to Gettysburg, $30.09, and monument in Gettysburg, $150. Exceptions were filed to this action of the auditor on behalf of Mrs. Sheely, but we cannot sustain those exceptions. It is true that in law a widow has the primary right to dispose of the body of her husband, but it is not this right which is challenged here, but the right to have that disposal made at the expense of his estate under the circumstances of the case. Here, he had made an arrangement for his burial by purchasing a lot in the cemetery near his home and erecting on it a monument bearing his name and date of birth and place for date of death. Unless he had declared unequivocally that he desired to be buried elsewhere, that arrangement must stand as his desire, and if the widow in the exercise of her right over his body desires to bury him elsewhere, that she must do at her own expense. Was there such a declaration by Jasper N. Sheely of a desire to be buried in the Gettysburg National Cemetery as would justify the course pursued by his widow? We cannot find it in the evidence. The only testimony relative to it comes from the lips of the widow herself, and one of the occasions referred to is denied by the son. At best, it was but a statement she said he made casually on one occasion to her, and a statement she made to that effect in the presence of the decedent to his son and which he did not deny or agree to. When we take into consideration the evident hostile feelings existing between the widow and the children of said Jasper N. Sheely, and that this burial was made and decided on by the widow without consultation with or consent of the children of the wife buried at that monument in Greencastle, we agree with the findings of the auditor and the conclusions of law he reached, and we will not disturb that surcharge. The second exception filed on behalf of Mary E. Sheely to said auditor’s report is, therefore, overruled.

As to the first exception filed on her behalf to a surcharge of $9.50 for wood, a pole and corn, however small the items and amount, she received them and should account for them, and that exception is dismissed.

These exceptions having been overruled, necessarily carry with them an overruling of the third exception filed on her behalf.

On behalf of Elizabeth P. Nicarry and other children and heirs at law of said Jasper N. Sheely, exceptions were filed to the report of the auditor. These exceptions raise but one question: Should the widow, as accountant, be surcharged with rent of the real estate of the decedent which she occupied after his death. At the time of his death he owned a home in Antrim Township, containing about thirty-eight acres and on which was erected a large dwelling house, barn and other buildings. All of this except the house and a small garden was then and had been for some years rented to other parties, the house being occupied by said Jasper N. Sheely and his wife, and the garden being retained by them. From the time of her return from Florida, the latter part of February, 1929, until April 1, 1930, when the real estate was delivered to a purchaser at a sale made by order of court for payment of debts of decedent, the widow lived in that part which had not been rented to others and paid no rental therefor. At the hearing before the auditor an attempt was made to surcharge her with the rental value of said real estate for the time she occupied it after her husband’s death. This the learned auditor refused to do, and in this we think he was clearly right.

This request for surcharge was under section fourteen of the Fiduciaries Act of 1917. That section reads as follows: “Rents of real estate accruing after the death of the owner of such real estate, who shall die on or after the day on which this act shall go into effect, shall be assets for the payment of debts of such decedent whenever the personal estate shall be insufficient therefor. Whenever the personal estate of such decedent shall appear to be probably insufficient for the payment of debts, the orphans’ court having jurisdiction of the accounts of the executor or administrator shall, upon application of any creditor of the decedent, or upon application of the executor or administrator, or of any other person interested, authorize and direct the executor or administrator to collect such rents for such period as the court shall fix. In such case the executor or administrator shall have power to collect such rent by action at law, distress, or otherwise, as the decedent, in his lifetime, might have done as to rents of such real estate; and rents so collected shall be accounted for by the executor or administrator in his account of the personal estate of the decedent.”

This was a very marked change in the law from what it had been before the passage of that act, as before that rents were not part of the estate of a decedent for the payment of his debts, but belonged to his heirs. The legislature evidently intended this drastic change to become operative only when properly brought into being by a proceeding on the part of some one in interest, and, hence, the provision for application to the proper court for such authority to collect rents and thus to make them part of the decedent’s estate and to be accounted for as such. If rents were to be made applicable for payment of debts under all circumstances, the legislature could well have said so and not put in the act the necessity for an order of the court so to make them. In the instant case no application of this kind was made to the court by any one, and, as we view the law, said rents were not part of the decedent’s estate for any purpose and the accountant could not have been surcharged with any amount for this item. Under these circumstances, it is not necessary for us to decide what our attitude would have been, under the facts, if such an application had been made to us.

The exceptions filed to said report on behalf of Elizabeth P. Nicarry et al. are dismissed.

Now, therefore, January 10, 1931, the exceptions filed to the report of A. G. McLanahan, Esq., auditor, both on behalf of Mary E. Sheely and Elizabeth P. Nicarry et al., are overruled and dismissed and said auditor’s report is confirmed. Prom Albert Strite, Chambersburg, Pa.