Page images

Balance for distribution, as appears by account, $802.08.


To Marion Dukeman


It is ordered and decreed that Marion

lows also that the children of his sister | it. It can be seen that the testator was were not, at least in tne same way, in his influenced by the feeling that he would mind because they were not mentioned. survive his wife, and we find that he inThe repeated references to children in the tended a transmissible interest to vest in one case and the conspicuous omission his sisters only in the event of them of them in the other emphasizes a differ- getting actual possession of it, continence in intention as to the different rela- gent on which the vesting was subject to tionships. But he has in a more posi-a devesting by their deaths before that tive way declared an intention to provide of the widow. only for his sisters and only upon them. actually taking: He shows no disposition to discriminate among them, but he indicates that he did not expect and therefore did not intend their children to participate. In the event of the sisters not actually taking he more than intimates Dukeman, administrator d. b. n. c. t. a. that their children shall not. He says, as aforesaid, do pay the amount, as here“I give and bequeath to my sisters liv-in directed, to the person, entitled to the ing at the time of my death share and share alike." Thus he excludes the children of sisters dying before him. While he shows no preference as to his sisters he makes it clear that for them alone is he concerned and implies that their children are not to take directly from him. Otherwise it would be, if the gift had not been confined to the sisters "living" at the time of his death, for then children of any sister dying before him would have taken the mother's share.

Our efforts have been to find the testator's intention and we have arrived at the conclusion that he intended this legacy for his sisters or his daughter or his daughter's children, and his intention may not be defeated because of rules of construction. The sisters died, and impossible therefore was it for the testator's intention as to them to be fulfilled, and nowhere in the will can be found even a remote intimation that the testator intended any other one than his daughter, or her children, to take any part of his estate. To deny the daughter anything that had been her father's it is necessary to permit a rule intended to aid in the search of testamentary intentions to smother an intention and one that is normal, natural, apparent. It can be said that the legacy vested in the sisters at the death of the testator, but viewed in the light of the testator's intention it was not an absolute vesting and it was devested because of their deaths before coming into possession of


This report is confirmed nisi.

Estate of Sue Evans, Deceased.

Trusts-Liability of trustee.

A trustee, who accepts a trust with knowledge of an objectionable loan, which was made at his request, can not take credit for it on filing his account.

Exceptions to adjudication. O. C. of Lancaster Co., January Term 1908, No. 17.

H. E. Sherts, for exception.

Coyle & Keller, contra.

March 15, 1915. Opinion by SMITH, P. J.

The exceptions to the account of S. K. Orr, trustee of the balance of the proceeds of the sale of decedent's real estate, to the income of which George R. Evans was entitled as tenant by curtesy, were sustained, whereby the accountant was surcharged $1575.00. To this surcharge exception is taken.

George R. Evans was the administrator of the estate. While the funds were in his hands at the request of S. K. Orr, who became the trustee, he lent

March 27, 1915. Opinion by HASSLER, J.

$800.00 to his son, Harry W. Orr, for which a promissory note was given. After the balance had been handed over to S. K. Orr as trustee, he lent his son of the trust funds an additional $775.00, taking a note therefor. In his account the trustee charged himself with $2,075.85, and among other things took credit for $1575.00, the amount which had been lent to Harry W. Orr, there-sault and battery, aggravated assault and fore the surcharge.

The trustee accepted the trust not only with full knowledge of the objectionable loan made by the administrator, but as an inspiring party to it, even being a co-maker or endorser of the note given by Harry W. Orr. How, therefore, can he be allowed a credit for this money which should have come into his hands. As to his liability on a similar loan made by him as trustee we do not undertsand that there is a pretense at a defense.

The exceptions are dismissed and the adjudication is confirmed absolutely.

Quarter Sessions.

The indictment in this case charges the defendant with having committed assault and battery and aggravated assault and battery on Ida E. Egolf and Vernon L. Egolf. It is based upon a complaint that charges the defendant upon the oath of Walter Egolf with having committed as

battery and felonious assault and battery, without alleging upon whom the said offences were committed.

In Commonwealth v. Herr, 26 L. L. R. 334, we said, "It is well settled that

the information must contain all the

essential elements of the offense, or an
indictment based upon it will be quashed,
even though such indictment does con-
tain them: Com. v. Campbell, 22 Sup. 98:
Com. v. Burkholder, 21 L. L. R. 118;
Com. v. Cochran, 22 L. L. R. 190; Com.
v. Morning Star, 12 C. C. 34."
Com. v. Tyson, 22 York 196.

See also

It is an essential element of the offense of assault and battery to state upon whom it was committed. As the complaint does not do this the defect was clearly supplemented by the District Attorney on information from sources other than the complaint, and so far as the record showed sources which were not under oath. This could not legally be done, and the indictment must be

Commonwealth v. Hastings.
Indictment-Sufficiency of complaint-quashed.
Action by Grand Jury-Practice.

An indictment for assault and battery will be quashed if founded on a complaint which does not allege upon whom it was committed, although the indictment does so allege.

The objection that the indictment was not acted on by the Grand Jury at the term to which the recognizance of the defendant was returnable is without merit because the record shows the defendant was given notice in writing at which term it would be acted upon in ample time to enable him to exercise all his rights: Com. v. Wilhelm, 23 L.

An objection that an indictment was not acted on by the Grand Jury at the term to which the recognizance was returnable is without merit where the record shows that the defendant was given timely notice in writing at which term it would be acted upon. Where there is ground to quash an indict-L. R. 402; Com. v. Rice, 15 D. R. 604: ment, a demurrer will be considered by the The particular in which this indictment is court as a motion to quash.

[blocks in formation]

invalid is rather a ground to quash it, and we will, therefore, consider the deCochran, 23 L. L. R. 267. Indictment murrer as a motion to quash, Com. v. quashed.

[blocks in formation]

For the miracle has happened, and the olden days are past!

That which made Milwaukee famous does not foam in Tennessee,

[ocr errors]

Jurisdiction Over Air Craft.

The case of the Crawford Bros. No. 2, 215 Federal Reporter, 269, was a libel in rem for repairs to an aeroplane. An intervening libelant asserted a salvage claim for having salved the aeroplane after it had fallen into the waters of the

And the lid in old Missouri is as tight-locked bay while on a flight, and filed excep

as can be;

[blocks in formation]

has gone awry,

And the punch bowl holds carnations, for the South is going dry!

All the nightcaps now have tassels, and are worn upon the head!

Not the nightcaps that were taken when nobody went to bed;

And the breeze above the blue grass is as solemn as is death,

For it bears no pungent clove tang on its odorific breath;

And each man can walk the chalk line when

the stars are in the sky,

For the fizz glass now is fizzless and the South is going dry!

Lay the jest about the julep 'neath the chestnut tree at last,

tions questioning jurisdiction of the court of admiralty. The counsel for libelant conceded that there was no precedent for this proceeding, but contended that, as jurisdiction in admiralty in the past had been extended to meet the needs of commerce, the court would also assume jurisdiction here. The court insists, however, that legislation is necessary to confer upon it jurisdiction over such actions. In view of the novelty and complexity of the questions that must necessarily arise out of this new engine of transportation and commerce, it appears to the court that, in the absence of legislation conferring jurisdiction, none would obtain in this court, and that questions such as those raised by the libelant must be relegated to the common-law courts, courts of general jurisdiction. The action of the Juridic Committee on Aviation manifests a recognition of the fact that legislation is necessary for the regulation of air craft. They are neither of the land nor sea, and, not being of the sea or restricted in their activities to navigable waters, they are not maritime."


A man was brought before the court upon the complaint of his wife, says the "Berliner Illustrirte Zeitung": While the prisoner was testifying, the judge The water wagon rumbles through the South-made it clear that he intended to be harsh

For there's but one kind of moonshine, and the older days are past.

land on its trip,

And it helps no one to drop off to pick up the driver's whip;

with him; so his wife became frightened, and, when called to the stand, re

[merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small]

David N. Landis, Upper Leacock.
Jacob M. Swarr, East Drumore.
John Elmer, Salisbury.
Abiram Garner, East Cocalico.
Anna Mary Musser, East Donegal.
George L. Brenneman, Manor.
Andrew J. Yundt, New Holland.
John T. Greenleaf, Coleraine.
Rachel R. Scott, Coleraine.
Sarah J. Moss, Drumore.
Samuel F. Glick, Upper Leacock.
Mary A. Herr, city.

Christian B. Lapp, Leacock.
Abraham K. Brubaker, Rapho.
Henry Baker, Elizabethtown.
Clement B. Ayres, Paradise township.
Samuel J. Nixon, Sadsbury.
Benjamin G. Good, Pequea.
William Fritsch, city.

Elizabeth B. Lenhart, Warwick.
Salinda P. Swartley, city.
Nannie Waltman, East Drumore.
Subina Mylin, city.

John A. Hannum, East Drumore.
William Easton, Sadsbury.
Mary L. Eshleman, Strasburg Twp.
Max Beyer, city.

Mary Buckwalter, city.
Mary E. Martin, Mt. Joy.

Thursday, June 3, 1915.

Susanna Resh, Leacock township.
Mary C. Long, city.

Sophia Esbenshade, Strasburg.
Elizabeth Hess, Elizabethtown.
Margaret A. Kacy, E. Lampeter Twp.
John L. Killinger, city..

R. L. Chittenden, Paradise Twp.
Charles A. Breneman, city.

George P. Jenkins, Little Britain Twp.
Franklin B. Hershey, Mountville.
Margaret Larner, W. Lampeter Twp.
Joseph S. Harnish, Conestoga Twp.

Estate of William Pennell, deceased. Exceptions to adjudications dismissed and adjudication confirmed absolutely. Thursday, June 10, 1915. Adjudications:

Catharine P. Kapp, Elizabethtown. Frances N. and Rachel R. Scott, Colerain. Elizabeth Geibe, Mt. Joy Twp. Daniel Smeych, City.

dated December 17, 1913, and duly re

LANCASTER LAW REVIEW. corded at Lancaster, Pa., in Deed and

Trust Book 6, page 554, and is duly

VOL. XXXII.] FRIDAY, JUNE 18, 1915. [No. 33 qualified to act as such assignee and maintain this action.

Second: That the assets of the as

Common Pleas--Equity. signed estate of said George M. Woods

Nauman, Assignee of Woods, v. Woods. Conveyance of stock by debtor-When

are insufficient to pay its indebtedness, the schedules and list of creditors filed showing the assets to be $52,000 and the liabilities $171,245.95.

set aside-Assignment for creditors of January, 1912, the said George M. Third: That on or about the sixth day Act of June 4, 1901.

The owner of corporate stock cannot, while obligated to an amount in excess of his assets, and having entered upon a new business involving large indebtedness, convey the same without consideration to his children.

Woods purchased and, without consideration, gave to his children three hundred shares preferred and three hundred shares common stock of the Phoenix Water Power Company, a corporation Even as against subsequent creditors one located at Phoenixville, Pa., the said cannot settle his property and retain the bene-stock being issued, fifty shares preferred fits of ownership.

Under the Act of June 4, 1901, P. L. 404,

an assignee for the benefit of creditors represents the creditors, and can take action for their benefit to set aside a conveyance of property by his assignor.

The owner of certain corporate stock transferred the same without consideration to his children while indebted in excess of his assets and having just entered into an extensive farming operation. After having largely increased his indebtedness, the stock was, at his request, assigned as collateral for certain notes. These notes were afterwards paid by his mother, who subsequently died leaving to his wife and lhildren a legacy less his advancements. He made an assignment for the benefit of his creditors and the assignee filed a bill in equity to recover the stock for the estate.

Held, that the transfer to the children was

void and the stock should be delivered to the


Equity Docket No. 6, page 13.
Bill in equity.

children, namely: Jeanne Woods, Esther
and fifty shares common, to each of said
Woods, Katharine Woods, John S.
Woods, George B. Woods, and David C.
Woods, all of whom are minors except
Jeanne and Esther Woods.
value of said stock is ten dollars per share
and the purchase price was three thou-
sand dollars, the common stock being
given as bonus to the purchaser.

The par

Fourth: That on or about the seventh

day of January, 1913, at the instance and request of said George M. Woods, said stock was assigned and delivered to T. Scott Woods, as collateral security for the payment of certain notes and the renewals thereof of the said George M. Woods amounting to $16,000.00, upon which the said T. Scott Woods was accommodation endorser, namely: note for $1,700.00 dated December 20, 1912, note

Appel & Appel and W. U. Hensel, for for $1,500.00 dated October 21, 1912, plaintiff.

T. Roberts Appel, for defendant. January 9, 1915. Opinion by LANDIS, P. J.

THE PLEADINGS. On June 26, 1914, the plaintiff filed his bill of complaint against the defendants, setting forth the following cause of complaint, to wit:

First: That your orator is assignee for the benefit of the creditors of George M. Woods, of said county of Lancaster, by virtue of a general deed of assignment

note for $3,000.00 dated November 18, 1912, note for $2,500.00 dated November 25. 1912, and note for $1,500.00 dated December 20, 1912, purchased by the Lancaster Trust Company; note for $1,300.00 dated November 12, 1912, purchased by the Coatesville Trust Company; note for $4,500.00 dated November 18, 1913, purchased by the Peoples Trust Company. The renewals of the notes for $1,700.00, $1,300.00 and $4,500.00, aggregating $7,500.00, were paid respectively on October 15th, November

« PreviousContinue »