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event shall go to Frank's heirs. It wasn't | operating only as a collateral circum

in mind that they should succeed through Frank. His heirs," however, could serve as an apt term of description to designate the class to take under the will provided Frank did not live to succeed to its actual benefits.

Neither discussion nor citation of authority is needed to show that the intention to be gathered from the instrument, if clear, must govern save only where it is subject to disappointment by operation of an artificial rule of property next hereinafter mentioned. Hence, the argument of defendant's counsel that the facts give rise to two questions:

(1) Was Frank's interest vested rather than contingent? and, if so, (2) Does the rule in Shelly's case apply, thus converting it into a remainder in fee simple?

Time is not at our disposal for reference to the numerous decisions cited pro and con; but they lie around the proposition that it should be regarded as vested because the right of property passed at testator's death notwithstanding its actual possession and enjoyment were temporarily postponed.

The principle in mind of counsel is well defined and not in dispute. But to bring this case within its operation is another thing, of which defendant must be deemed to have the burden.

It is said that the only condition expressed in the devise is one which is necessarily implied in case of every vested remainder, to wit: the survival of the remainderman beyond the termination of the particular estate; and that the test to be applied is the existence of some person capable of taking the immediate use of the property if the particular estate were presently determined. Thus, says the learned counsel, the inquiry here is as to the right of property; if the right to the estate was vested the remainder was vested, although the actual enjoyment never came to Frank.

Granting the premises to be true that result would undoubtedly follow; but they cannot be taken for granted as it would be merely begging the critical question. The analogy sought to be invoked is invalid as it is derived from those cases where the actual enjoyment is defeated by the casual event of death

stance entirely extraneous to the terms and conditions of the gift and about which the will did not concern itself. In such case the testator must of necessity be deemed to have left the consequences of an untimely death-so to speak-in the hands of the law, and the principle of representation does the rest, so there is nothing to prevent the immediate vesting of the remainder at one time as well as another. But that cannot consistently be so where specific provision is made for the event during the outstanding life estate whereby some other person, or class of persons, is designated to succeed the life tenant. And it can make no difference either in law or logic that the one devise cast the succession upon the heirs of him who otherwise would have succeeded. It could have been given to a stranger or a stranger's heirs. In either case whoever succeeds to the remainder takes it as direct beneficiary of the will, and not through an intermediate ancestor. The mere fact that he who claims as remainderman is the one who would have inherited does not prevent him from taking as purchaser; Affolter v. May, 115 Pa., 54.

This may serve to bring into view another difficulty with which defendant is confronted. If it be true that Frank took a vested remainder, the question. arises: Why the necessity of resorting to the rule in Shelley's case? It is inconceivable that the estate could ever vest except at its face value. According to the express terms of the devise he would take, if at all, for his own use and benefit forever," and this, under the Act of 1833, would pass the whole estate; McDevitt's Appeal, 113 Pa., 103. In that quality his estate would stand in no need of aid from any other source. What is more, it could get none by operation of the Rule. A fee cannot be mounted upon another fee. Where the first taker, so called, gets the fee simple there can be no limitation over, as nothing remains to be limited. Most assuredly if Frank took anything it was not an estate for life, whether his own or that of any other person.

Counsel's theory may have been one to which, either consciously or uncon

sciously, he felt himself driven as the choice between the two horns of a dilemma. It would seem to offer the only means of escape from the embarrassment of rejecting the other provision as mere surplusage. But that would be against the cardinal rule of testamentary interpretation which requires effect to be given to all and singular its provisions and harmony to the entire will if possible; and on that score no trouble need be had in this instance.

Attention is called to the policy of the law which, as between a contingent and a vested remainder would favor the latter. But that applies only in doubtful cases, and unless this case has been radically misconceived it must be regarded as

free from doubt.

It must be borne in mind, as already noted, that on the face of the devise plaintiff's right was not that of succession through his father as predecessor either in title or possession. True, whether he should ever succeed or not was wholly dependent upon his father's death before the life estate expired. If that didn't happen, the provision for the benefit of his heirs fell. But it did happen; and thus in the uncertain course of events the very thing occurred which was appointed to cast the succession upon the class to which the plaintiff alone belongs. If, therefore, such class had any right at all it was to succeed in default of another devisee nominatim. As such the successsion would be direct by force and effect of an alternative devise; that is to say, a purchaser.

"It has been stated," says Professor Mitchell, that after a fee was once created and given, no further limitation could be made by way of remainder, for the fee simple was all the estate and when that is given nothing remains. There is a class of cases which seem to form an exception to this rule, but do not, in principle. Thus, where a remainder in fee is given to vest in a certain contingency in one person, and in the reverse of that contingency in another person, both remainders are contingent, but they are not mounted, a fee upon a fee. They are alternative, only one can ever take effect, and when one vests in fee, the other is

inevitably gone;" Mitchell on Real Est. & Conveyancing, 237.

This is the classification to which the present case belongs. As an example Fetrow's Est., 58 Pa., 424, is cited. Testator had devised land to one M. W. for life and at her death to her children in fee. If she should leave no children, then to M. F. and others in fee. M. W. died without children. It was held that two contingent remainders were created, one to the children, if any, of M. W., and, as an alternative in default of such children, another contingent remainder to M. F. and others, An illustration more directly in point for present purposes will be found in the construction of Crean's Will, in Buzby's Appeal, 61 Ib., III, as the "right heirs" of testator were there held entitled to succeed as purchasers upon failure of another class of devisees, and that in the meantime the respective interests had been that of alternative contingent remainders.

As between Frank and this plaintiff, that was the situation here during the joint lives of Frank and his mother. Had the mother died first it would have operated to convert Frank's interest into a vested remainder in fee. But the reverse of that happened, thus vesting it in this plaintiff. It follows that the title and right of possession were well vested in him at and before the inception of this suit, and that is decisive of the issue.

Judgment on the demurrer for plaintiff for the land described in the writ.

Tegal Miscellany.

Jurisdiction of Teachers and School Board.


May the teacher lawfully punish a pupil for acts committed between home and school? Must he take cognizance of such acts, or may he disregard them. What is the nature of his jurisdiction over the pupil at such times? are some of the questions asked and answered by Prof. B. B. Bassett, of Iowa City, writing in the September Case and Comment, the author says:

Fourteen states have defined the

teacher's jurisdiction in part by statute. | a pupil for violating the same was sus

Although it extends in each case beyond the school premises, there are four different boundaries defined: (1) From the time the pupil leaves the parental roof until he arrives home again. Arizona, California, Idaho, Kentucky, Mississippi, Nevada, New Jersey, Pennsylvania, Virginia and Washington. (2) From the time the pupil leaves home for school ground until he arrives home from school. West Virginia. (3) From the time the pupil leaves home for school until he leaves school for home. Monuntil he leaves school for home. Montana. (4) When "near" the school ground. Florida.

The exercise of this control is either obligatory on the part of the teacher (Arizona, California, Florida, Idaho, Kentucky, Mississippi, New Jersey, Nevada, Virginia) or permissive and discretionary (Montana, Pennsylvania, West Virginia and Washington).


In Dritt v. Snodgrass, 66 Mo. 286, 27 Am. Rep. 343, it was held that a pupil could not be suspended for violating a rule against attending social parties where the parents gave their consent, and it was not shown that there was anything

immoral in such act.

REQUIRING HOME STUDY. The right of the teacher or school board to make and enforce a rule requiring pupils to prepare lessons at home has been denied by the courts of both this country and England.

In the case of Hunter v. Johnson (1884) L. R. 13 Q. B. Div. 225, 53 L. J. Mag. Cas. N. S. 182, 51 L. T. N. S. 791, 32 Week. Rep. 857, 15 Cox, C. C. 600, 48 J. P. 663, an action against a teacher for assault and battery was sustained. The teacher enforced a rule re

quiring home study, by the detention of a pupil beyond the regular hours of school in order to make up work which had been set as a home task, but which the pupil's mother forbade her to per



tained, although the offense was committed away from the school premises, and out of school hours. See Kinzer v. Independent School Dist. (Kinzer v. Toms) 129 Iowa, 441, 105 N. W. 686, 6 Ann. Cas. 996, 3 L. R. A. (N. S.) 496.


School Dist. No. 1), 43 Wash. 441, 86 In Wayland v. Hughes (Wayland v. Pac. 642, 7 L. R. A. (N. S.) 352, it was held that the board may prohibit pupils from joining secret societies on penalty of losing all privileges of the school except that of attendance at classes. Joining secret societies is now prohibited to pupils by statute in California, Indiana, Iowa, Kansas, Minnesota, Ohio and Oregon.


The jurisdiction of the teacher and school board may be briefly summarized as follows: (1) In the legitimate exercise of his functions, the control of the teacher over the pupil while on the school premises is complete and exclusive. (2) On the way to and from school, the teacher's jurisdiction is concurrent with that of the parent, but punishment for acts committed by the pupil at such times may be inflicted by the teacher only after the pupil has returned to school. (3) After the pupil arrives home, the parent's control is complete and exclusive for all ordinary acts; but where acts of the pupil have an immediate tendency to injure the school, they may be punished by the teacher.

(4) The school board has power to make all reasonable rules governing the conduct of pupils, even if the effect of such rules is to exercise control over the pupil while under the parent's roof.

(5) The reasonableness of a rule will be determined by the court in each particular case; but, in general, the rule laid down by the Iowa court, Burdick v. Babcock, 31 Iowa, 562, will apply. If the effects of acts done out of school

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reach within the schoolroom during school hours, and are detrimental to good order and the best interests of the pupils, it is evident that such acts may be for

A rule forbidding pupils to play football in the name of the school was held | bidden.” to be reasonable; and the suspension of

-B. B. Bassett.

"I give and devise unto my daughter

LANCASTER LAW REVIEW. in-law, Molly Sweigart, all my personal

VOL. XXXII.] FRIDAY, NOV. 13, 1914.

Orphans' Court.

[No. 2

Estate of Catharine Sheaffer, deceased.

Wills - Intestacy-Illegitimates-Presumption of death of heir-Prescrip


A testatrix bequeathed her personal property to her daughter-in-law directing her to buy a home with it, to be sold after her death and the amount she put in it distributed to her grandchildren, the children of her three illegitimate sons, two of whom were dead and the third had disappeared five years before her death. She left no personal property but left real estate purchased shortly before her death, in which her daughter-in-law lived until she also died more than twenty-one years afterward.

Held, that the testatrix having died intestate as to her real estate, it vested in her son who had disappeared, notwithstanding a presumption of his death may have since arisen, or in her daughter-in-law by prescription and in either case the grandchildren were not entitled to partition. Vested rights cannot be disturbed by legis

lation ex post facto.

Rule to show cause why an inquisition in partition should not be awarded. O. C. of Lancaster Co. August Term, 1914, No. 50.

T. Roberts Appel, for rule.

B. F. Davis, contra.

property of whatsoever kind or nature the same may be as long as she remains the widow of my late son Cyrus Sweigart, deceased, her the said Molly Sweigart. To invest the same in some real estate for a Home for herself and children so long as she remains the widow as aforesaid, for her and the children to occupy the same to live together as they now do, so long as they may devise or death of said widow, I order and direct deem proper. And immediately after the my herein after named Executor, to sell or dispose the said real estate, by public Vendue or outcry and out of the proceeds thereof distribute the amount of the money invested in said real estate by the said widow from my estate but in case the said widow or her children can pay over to my said Executor, immediately after her decease said amount in the said property to be and remain as the property of the said widow or her heirs and the amount so appropriated as aforesaid, I give and dispose of the same as follows, one third part thereof, I give and bequeath unto the children of Gabriel Young, to be equally divided amongst them share and share alike, unto the three children of Jacob Grove, one third part thereof, namely unto Franklin, Mary intermarried with Richard Heilig, and Sarah, intermarried with Henry Hamaker, and to their heirs and assigns forever. And one third part thereof unto the four children of Cyrus Sweigart, deceased to wit: unto Catharine intermarried with John Steiner, Franklin, John and Jacob, to be equally divided

November 5, 1914. Opinion by SMITH, amongst them share and share alike, and

P. J.

This is a rule to show cause why an inquisition in partition should not be awarded.

Catharine Sheaffer left the following


"Ist. I do order and direct that all my just debts and funeral expenses be duly paid and satisfied as soon as conveniently can be done after my decease. And as to such worldly estate as it has pleased God to intrust me with, I dispose of the same as follows:

to their heirs and assigns forever."

No personal property was there with which to carry out the provision intended by the testatrix for her daughter-in-law, Molly Sweigart. She, however, died seized of the house and lot in which she lived previous to her death, and which was also the home of Molly Sweigart and her family. This property had been bought by her on March 8, 1880. Her death occurred on the 5th of August of the same year. Molly Sweigart continued to occupy this house and lot until she died, which was about May 25, 1914.

She believed she had a right under the will to possession, and in this those who would have been the remaindermen had the property been bought by her as provided by the will concurred. Notwithstanding this prevailing belief, the testatrix died intestate as to this property, and it vested immediately upon her death in her heirs. She was the mother of three illegitimate sons-Jacob Groff, Cyrus Sweigart and Gabriel Young.

wealth v. Moir, 199 Pa., 534 (see page 560).

The citation is refused and the rule is dismissed at the cost of the petitioner.

Common Pleas--Law.

Roth v. Tobias et al.

The first two died before her, therefore Promissory notes-Accommodation en

no one inherited through either of them. Being natural children, under the Act of April 27, 1855, P. L. 368, which then controlled, neither could transmit any right from his mother, consequently the real estate vested in Gabriel Young. It seems that he left Elizabethtown, where all of them had lived, nearly five years before his mother's death; that since then there may have arisen a presumption that he has died does not alter the fact that it did not exist at the time of his mother's death, and the burden is on those who are disposed to contravert the vesting of the real estate in him to prove that he died before her.

It is claimed that by adverse possession for more than twenty-one years, Molly Sweigart had obtained title. If this cannot be sustained, the title, as far as we now know, is in Gabriel Young. If either had title, the partition proceedings are infeasible.

It was argued that the Acts of June 4. 1897, P. L. 142; July 10, 1901, P. L. 639, and March 26, 1903, P. L. 70, have enlarged the rights of illegitimates, making the petitioners heirs of their grandmother, the decedent, and that by reason of the repeated provision that the act shall apply in "all cases, now pending, where the estate of such illegitimate or its mother has not been actually paid to and received by collateral heirs or relatives or the Commonwealth, as well as to such cases happening after the passage of this act," makes it retroactive, and therefore the prayer of the petitioners should not be denied. This case was not pending at the time of the passage of any of these acts, and if it had been, no vested rights could be disturbed by this ex post facto legislative provision. Norman v. Heist, 5 W. & S., 171; Common

dorsement - · Antecedent debt — New consideration Negotiable Instruments Act of May 16, 1901, sec. 26.

In an action against the endorsees upon a promissory note of a corporation, endorsed by its directors and given to the plaintiff for an waiting for a municipal franchise, thereby antecedent debt while the corporation was procuring additional time for the corporation.

Held, that the advantage thus gained for the corporation was sufficient new consideration for the endorsements of the directors, and they could not defend upon the ground that their endorsement had been without consideration.

The 26th section of the Negotiable Instruments Act considered.

Raken v. Henry, 16 Dist. R. 207, followed.

Motion for new trial. C. P. of Luzerne Co. February Term, 1912, No. 183.

H. W. Dunning, for plaintiff.

J. L. Lenahan and C. M. Bowman, for defendants.

Opinion by Strauss, J.

This is an action on a promissory note of the Wilkes-Barre Light Company, drawn to the order of its directors, among whom were J. B. Tobias and George A. Clark, who alone appeared at the trial and took defense upon matters entirely personal to themselves.

The affidavit of defense in the case avers that the note had been given to E. F. Roth, the plaintiff, upon a cotemporaneous oral agreement that when the same should fall due it might be renewed from time to time until after the franchise, for which the Wilkes-Barre Light Company was then applying, should be granted, and also that it had been agreed with the plaintiff prior to the execution of the note that the goods and merchan

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