lows also that the children of his sister | it. It can be seen that the testator was

were not, at least in the same way, in his mind because they were not mentioned. The repeated references to children in the one case and the conspicuous omission of them in the other emphasizes a difference in intention as to the different relationships. But he has in a more positive way declared an intention to provide 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 that their children shall not. He says, "I give and bequeath to my sisters living 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.

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,

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 P. J. 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

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 SLER, J.

$800.00 to his son, Harry W. Orr, for | March 27, 1915. Opinion by HASwhich 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, therefore 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 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 assault and battery, aggravated assault and battery and felonious assault and battery, without alleging upon whom the said offences were committed.

In Commonwealth v. Herr, 26 L. L.
"It is well settled that

R. 334, we said,
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." See also

The exceptions are dismissed and the Com. v. Tyson, 22 York 196. adjudication is confirmed absolutely.

Quarter Sessions.

Commonwealth v. Hastings.

Indictment-Sufficiency of complaint-
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.

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 indictment, a demurrer will be considered by the court as a motion to quash.

Demurrer to indictment. Q. S. of Lancaster County, November Sessions 1914, No. 81.

John A. Nauman, for demurrer.

John M. Groff, Dist. Att'y., contra.

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 quashed.

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. L. R. 402; Com. v. Rice, 15 D. R. 604: The particular in which this indictment is invalid is rather a ground to quash it, and we will, therefore, consider the demurrer as a motion to quash, Com. v. Cochran, 23 L. L. R. 267. Indictment

quashed.

That which made Milwaukee famous does not foam in Tennessee,

And the lid in old Missouri is as tight-locked

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

bay while on a flight, and filed exceptions 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 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."

Difficult.

a

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 made it clear that he intended to be harsh with him; so his wife became fright

| ened, and, when called to the stand, re

dated December 17, 1913, and duly

LANCASTER LAW REVIEW. Carded at Lancaster, as, an 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 set aside-Assignment for creditorsAct 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.

Even as against subsequent creditors one cannot settle his property and retain the benefits 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 assignee.

Equity Docket No. 6, page 13.

Bill in equity.

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.

Third: That on or about the sixth day of January, 1912, the said George M. 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 located at Phoenixville, Pa., the said stock being issued, fifty shares preferred and fifty shares common, to each of said children, namely: Jeanne Woods, Esther Woods, Katharine Woods, John S. Woods, George B. Woods, and David C. Woods, all of whom are minors except Jeanne and Esther Woods. The par value of said stock is ten dollars per share and the purchase price was three thousand dollars, the common stock being given as bonus to the purchaser.

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.

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