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the owner of a farm, containing about 54 acres, located in Martic Township, this county, and on March 20, 1913, she and her husband executed and delivered to her son, Lawrence M. Weitzel, the plaintiff, a mortgage for $600.00, payable on April 1, 1914. This mortgage was entered in the Recorder's Office of this county in Mortgage Book No. 152, at page 478. Accompanying the mortgage was a judgment bond of like amount, which was subsequently entered to April Term, 1915, No. 3. On January 20, 1915, execution was issued upon the judgment for the sum of $660.00, and the personal property of the said Belle M. Holbein was levied upon by the sheriff. Thereupon, she presented her petition to this Court and obtained the present rule.

The basis of her defense is, that at or shortly after the execution of the bond and mortgage, an arrangement was entered into between the said Lawrence M. Weitzel and herself, whereby it was agreed that, when Weitzel worked for other people, he was to board with his mother, and pay her for his board, washing and mending the sum of five dollars per week, and that, when he was not engaged in labor for others, and was not working for her, he was to pay a like sum; and that, if he boarded with others, but had his mending and washing done by her, he was to pay for the same the sum of one dollar; that the amounts

averred that he never agreed to have the amount of any board, etc., credited as a payment on his mortgage. He further asserted that the sum of $420.00 was not owing by him to Belle M. Holbein, though he admitted a credit of $30.00 to be due on his claim. Of course, that amount must, for this reason, be deducted, it being undisputed. In support of the respective contentions of the parties, depositions have been taken.

The testimony shows no dispute concerning the fact that the plaintiff, for a considerable time, boarded with his mother, and that she did his washing and mending. It is also admitted by him that he never paid anything for board, washing and mending. There is, however, a wide difference as to whether any contract was made whereby he was to pay for the board and services claimed, and also whether credit for any amount arising out of such a claim was to be given on the mortgage. He testifies to one state of facts, and his mother and stepfather to another. Under this contradictory condition of the affair, we think the rule should be made absolute, the judgment opened, and a jury be permitted to settle the dispute. The rule is, therefore, made absolute. Rule made absolute.

Resh v. Brubaker.

which should become due by him to her Justice - Adjournment - Judgment —

under this contract should be deducted, as a payment, from the mortgage. She alleges that, in pursuance of this agreement, the plaintiff was furnished by her with board, washing and mending, to the amount of $420.00, which ought now to be credited upon the bond and mortgage, and, in addition, she claims that, in the months of May and June, 1913, she paid him $30.00 on account of the principal and interest by paying for him on a promissory note of $20.00 held by one, George Murry, against him, and $10.00 cash.

The plaintiff filed an answer to the petition, in which he denied that he was to make payment of board, washing and mending furnished to him, and he also


Where a magistrate's record shows that a decision was reserved to a day certain on but the defendant testifies that he did not which judgment was entered for the plaintiff. hear the time of adjournment, and had no notice of the judgment, he will be permitted to file an appeal nunc pro tunc.

Rule to enter appeal nunc pro tunc. C. P. of Lancaster County. Trust Book No. 2, page 40.

S. R. Zimmerman, for rule.

S. V. Hosterman and B. J. Myers,


March 20, 1915. Opinion by LANDIS, P. J.


That Courts have authority, in proper | tice should notify them that judgment cases, to allow the entry of appeals after was entered, and in whose favor, and the proper time has gone by, is settled the fact that such notice was given by many adjudicated cases, and where should be noted on his record." the appellant has been misled by the Leslie v. Innes, 3 Dist. Rep., 689, it was Magistrate, it should be done. It would, held, by Judge Bell, that, where a case therefore, appear that the only point is adjourned without a day, the Justice now before us is, whether this case falls of the Peace cannot enter judgment within the scope of these decisions. To without notice to the parties, and that solve this question, let us briefly refer this principle is not affected by the Act to the facts. of March 22, 1877, P. L. 13. To the same effect are the cases of Ackerman v. Stoner, 7 Lanc. Law Review, 73, and Bower v. Stum, I Lanc. Law Review, 19.

Suit was entered by the plaintiffs against the defendant before Alderman Charles F. Stauffer, to recover certain commissions claimed by the plaintiffs. A hearing was duly had on November 24, 1914, and the record shows that the decision was reserved until November 25, 1914, at twelve o'clock M. It was again reserved until December 2, 1914, at twelve o'clock M., when judgment was entered against the defendant for $70.00. On December 23, 1914, the defendant appealed, and he now asks to have the same entered nunc pro tunc.

It was testified by the defendant and his counsel that, after the hearing, the Alderman suggested that the parties get together and make a settlement, and, for this purpose, he reserved his decision, and no particular day was fixed for the making of it; that they did talk over the matter, but arrived at no decision, except that a Mr. Flickinger was to go down and look at certain hogs. Thev also say that no notice was given to either of them of a further continuance. The Alderman does state that he cannot remember whether he sent defendant's counsel notice of the continuance until December 2, or of the entry of judgment, and that he did not send such a notice to the defendant. He does not testify as to what occurred immediately after the hearing.

In Housler v. Hogan, 1 Justices' Law Rep., 47, it was held that, where a Justice, after the trial, takes time to comsider, he must adjourn to a day certain, and that he cannot enter judgment upon a day to which no adjournment was had, of which the defendant had no notice; and in Herman v. Dubbs, 24 C. C. R.. 651, that, "if the parties are not present when the judgment is entered, the Jus

It is true that, in the case now before us, the Magistrate's record shows that he adjourned to a day certain. The time of adjournment does not, however, appear to have been heard by the defendant. As to the second adjournment, the uncontradicted evidence is, that the defendant was not present, and no notice was given to him, and that he never received notice of the entry of the judgment. Therefore, under all the facts, there appearing to be a genuine controversv between the parties, we think the appeal should be permitted to be entered nunc pro tunc.

The rule is, for these reasons, made absolute.

Rule absolute.

Summers v. Erb.

Magistrates-Summons -Service ofActs of March 20, 1810, 5 Sm. L. 170, and July 9, 1901, P. L., 614.

A summons issued by an alderman on December 14th commanding the defendant to appear December 17th, will not give jurisdiction and the proceedings will be set aside on certiorari.

of March 20, 1810, which changes the time when the service of a summons from a justice of the peace must be made, though the manner of service must now be in accordance with the Act of July 9, 1901, P. L. 614.

There is no Act of Assembly since the Act

Certiorari. C. P. of Lancaster Co.

January Term, 1915, No. 26.

Frank S. Groff, for certiorari.

March 20, 1915. Opinion by LANDIS, P. J.

Legal Miscellany.

Solomon Modernized.

A Georgia magistrate was perplexed by the conflicting claims of two negro women for a baby, each contending that she was the mother of it. The judge re

In this case, a writ of summons was issued by an alderman on December 11, 1914, commanding the defendant to appear on December 17th, between the hours of 3:00 and 3:30 o'clock p. m. The constable's return shows that it was served on the defendant on December 14, 1914. On the 17th, the plaintiff ap-membered Solomon, and, drawing a peared, but the defendant did not appear. The hearing was duly had, and judgment was entered in favor of the plaintiff for $25.00 and costs. On January 4, 1915, this certiorari was sued out from this Court.

The exception relied upon by the defendant is, that "the proceedings of the magistrate and the return of the constable show that the summons which was returnable December 17, 1914, between the hours of 3:00 and 3:30 o'clock p. m., was served on the defendant on the 14th day of December, 1914, which was not at least four days before the time of hearing,' as required by the Act of March 20, 1810, sec. 2."

A reference to this act shows that "the service on the defendant shall be by producing the original summons to, and informing him of the contents thereof, or leaving a copy of it at his dwellinghouse, in the presence of one or more of his family or neighbors, at least four days before the time of hearing." There is no Act of Assembly since passed which changes the time when the service must be made, though the manner of service must now be in accordance with the Act of July 9, 1901, P. L., 614. It is, therefore, manifest, under the admitted facts. that the proceedings of the magistrate are defective. The same question was decided by Patton, P. J., in Gates v. Sawyer, 14 Dist. Rep., 87.

Exception No. 1 is, for this reason, sustained, and the said proceedings are now set aside.

Exceptions sustained, and judgment. and proceedings of magistrate set aside.

bowie knife from his boot, declared that
he would give half to each. The women
were shocked, but had not doubt of the
authority and purpose of the judge to
make the proposed compromise. "Don't
do that, boss," they both screamed in
unison, "You can keep it yourself."
-" Case and Comment.”

Monday, April 19, 1915.

James Burnite, Colerain.
William A. Keller, city..
Catharine B. Smith, West Hempfield.
Jacob Grimes, East Cocalico.
Jacob Stoner, city.

Rebecca Marie D. Sheetz, Columbia.
Mary A. Nissley, East Donegal.
Abraham H. Huber. Providence.
James L. Pinkerton, Columbia.
Henry B. Becker, Brecknock.
Reuben Strickler, Manor.
Peter Dague, Earl.
John S. Fetter, Clay.
Martin S. Weigart, Drumore.
Margaret Snader, Salisbury.
Thursday, April 22, 1915.

John Tout, Strasburg Twp.
Anna Tout, Strasburg Twp.
Reuben S. Graybill, Penn.
Henry Neteley, East Cocalico.
Ellen Eby Myers, City.
William P. Gorrecht, City.
Christian G. Hoover, Conoy.
Mary Kraemer, Ephrata Twp.
Catharine Stoltzfus, Upper Leacock.
Emma T. Stover, Manheim Twp.
Anna Neuhauser. Upper Leacock.
Geo. W. McGinnis, Sadsbury Twp.
Anna Schied, City.

April 23, 1914. By the Court. Attest:

LANCASTER LAW REVIEW. C. G. Strickler, 2nd Asst. Clerk O. C."

VOL. XXXII.] FRIDAY, APRIL 30, 1915. [No. 26

Superior Court.

Wilson's Estate (Hilton's Appeal).

Executors-Settlement with legateesProfit by exccutor Assignment of legacy.

An executor who has settled with the legatees for an amount less than that finally adjudged to be due must pay over the balance due although they have released him in full. He can not make a profit from the estate.

The fact that one of such legatees had assigned his legacy to the attorney who represented the executor and his wife who was the residuary legatee, did not alter the executor's liability for the balance unpaid.

Appeal No. 108 of October Term, 1914, by Eber E. Hilton, executor, from order of O. C. of Lancaster Co. in Estate of Margaret A. Wilson, deceased, to pay over balance due distributees. Affirmed.

The error assigned was the action of the court below, SMITH, P. J., in making the following decree:

"In the matter of the order on the executor to pay certain legacies and the answer thereto filed by Eber E. Hilton, one of the executors, the Court having heard, on April 20, 1914, the said executor, certain of the legatees, and witnesses called, it is now adjudged and

ordered that Eber E. Hilton and William C. Whiteside, executors of said decedent, pay to H. Galen Eshleman, executor of J. Milton Wilson, deceased, the sum of sixty-four 96-100 dollars, the balance of his legacy unpaid with interest; to Rebecca E. Wilson the sum of thirty-five 05-100 dollars, and to Margaret V. Wilson the sum of thirty-five 05-100 dollars, in payment of the balance of the legacies bequeathed to them with interest, and that they pay the costs of this proceeding, $16.71, said payment to be made on or before April 30, 1914.

B. F. Davis, for appellant.

The share of one of the legatees was transferred to another party after the adjudication was confirmed and all had released in full.

The release extinguished all claims. Bradley v. Grosh, 8 Pa., 45. Tyson v. Door, 6 Whar., 256. Stumpf's Estate, 2 Woodward, 162. Hertzler's Estate, 192 Pa., 531. Ginginger's Estate, 2 Wood., 206. Deardorff's Appeal, 6 Watts, 159. Horton's Appeal, 38 Pa., 294. Staple v. Wellington, 62 Me., 9. Bank v. Blair, 44 Barbour, 651. Marshall v. Wheaton, 46 Conn., 315. Stuart's Appeal, 3 W. & S., 476. There could be no interest due after the receipt of the principal of which the interest was a mere incident.

Tuttle v. Tuttle, 12 Metc., 551.

Johnson v. Brannan, 5 Johnson, 268. The transfer of one of the shares for less than was due was proper and should be sustained.

Fowler v. Smith, 153 Pa., 369.

Coyle & Keller, for appellee.

An executor may not profit by forcing legatees to take less than they were en

titled to.

Horton's Appeal, 38 Pa., 294.

Nor would a mere transfer of one of the legatee's shares excuse the executor from paying it in full.

March 11, 1915. Opinion by TREXLER, J.

By the final adjudication in the above estate, filed May 20, 1912, the appellees were found to be entitled to certain legacies bequeathed to them by decedent. In the sums apportioned to them interest was included. The interest was calculated from the expiration of a year after the death of the testatrix, and the accounts showed that there were sufficient funds to pay all the legacies. On December 9, 1912, two of the appellees signed a release in which they acknowledged payment in full of all claims they had against the estate. In the release

was incorporated at length a prior adju- | the sum which was lawfully awarded dication in the estate, but at the time the release was given a second adjudication had superseded the first, and the amounts due them were increased by the addition of interest, and the sums so added form the subject of the dispute in this appeal. We have the fact undisputed that these heirs, when they gave their release, each received $35.05 less than they were entitled to receive. The Orphans' Court subsequently ordered the executor to pay this balance, and from that order the appeal which is before us is taken. No question arises as to the correctness of the account. The only question is whether the release extinguished the claims including interest.

There is no question that a release given from one, to another, in the absence of fraud, accident or mistake, is ordinarily binding upon the parties. In this case, however, the parties sustained peculiar relations. The accountant had in hand funds belonging to the legatees. He was merely a custodian of the assets belonging to them. He was not personally interested in the matter except to see that the assets were properly distributed in accordance to the directions of the will. The Orphans' Court had, by its confirmation of the last account, adjudged the heirs entitled to the specific sums set forth therein. Any sum less than the amounts awarded to them could not become the property of the accountant upon any principle of equity. His position is such that it entirely precludes his making a profit out of the estate, other than the compensation allowed by law. To allow an executor to go to the various heirs or distributees and, taking advantage of his position, pay them less than their share and thus use the estate to his own benefit, would be departing from all the standards set up for persons occupying fiduciary positions. The acThe account, as confirmed, shows a complete distribution. Each legatee, including the residuary legatee, is awarded a specific sum. Who is to benefit by the reduction of the several amounts? If the money is to go to the residuary legatee, which in this case is the accountant's wife, she gets the money in addition to

her. We need not go into the question of the conclusiveness of a release in cases where there is a compromise as to claims which are still in doubt or concerning which there is a bona fide contest. The case before us presents no such aspect. The simple fact remains that the executor has money in hand that neither belongs to him nor to the residuary legatee, but is due to the appellees. The appellees were in necessitous circumstances, had become discouraged by reason of the long delay, anl were willing to take anything they could get-in fact, they thought there would be nothing left. There is also evidence that the executor had been unfaithful to his trust and that they had good grounds for their fears. Certainly the executor should not be allowed to take advantage of these circumstances. As to whether the accountant should have been surcharged with interest is apart from the present inquiry. He had his day in court when the matter was adjudicated. There is some evidence that an appeal was pending at the time the releases were given and that the appeal would delay the settlement of the estate and that that fact entered into the giving of the releases. There is nothing, however, in the testimony that throws any light upon the question how that would have affected the relation of the parties. The court was right in requiring the executor to pay the full amount of the legacies notwithstanding the releases.

The cases cited by the appellant do not apply. In Deardorff's Appeal, 6 Watts, 159, the release was sustained because there was a lapse of over thirteen years and the accountant had in the meantime died. In Hertzler's Estate, Moore's Appeal, 192 Pa., 531, a release given by the heir was sustained under circumstances somewhat similar to those before us, but there the dispute was between the non-releasing heirs and the executor. The releasing heir claimed nothing. In Horton's Appeal, 38 Pa., 294, cited by the appellant, notwithstanding a receipt in full of all demands by the widow, the auditor's report allowed her an additional sum above the sum

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