Work Legal Record Vol. XXXI THURSDAY, NOVEMBER 8, 1917. No. 26 borough is invested with the authority to pass a valid ordinance of like effect. The brief submitted by the borough solicitor fully and ably supports the affirmative answer to this inquiry. tion that ordinances for the good government and order of the borough shall have the force of Acts of the Legislature, bring the authority conferred within the power known clause is frequently interpreted as granting as "the general welfare clause." This the power to pass all ordinances which are necessary to the good order and well being of the municipality; 28 Cyc. 705. It was so interpreted in Borough of Warren v. That the State may delegate police powers Geer, 117 Pa. 207. It was there said, that to municipalities, can not be fairly ques- this clause "confers a power that is very tioned. The doctrine is firmly established broad indeed, and practically includes whatand now well recognized, that the Legisla- ever conduces to the benefit and advantage ture may expressly or by implication delegate of the borough and would seem to restrict to municipal corporations the lawful exercise of police power, within their boundaries. The measure of power is subject to the legislative discretion; 28 Cyc. 693. "The Legislature may, in the exercise of its police power, empower the authorities of a mnnicipality to make such rules and regulations as they shall deem necessary for the good order of the municipality, to regulate its roads, streets and common sewers, to protect the citizens in their persons and property, and to promote the public health and to ordain penalties for the violation of such regulations and collect the same;" Com. v. Shafer, 32 Pa. Superior Ct. 500, citing a long line of cases in support of the text. The Borough of Norristown was chartered and created by a special enactment of the Legislature, passed March 31, 1812, P. L. 255. Section 6 declares: the limitations upon the exercise of those which require ordinances to be reasonable and not in conflict with the state or federal constitutions." This case also intimates that without the enactment of the general welfare clause, in favor of the borough, the municipality possesses the necessary authority to pass the ordinances under the common law power incident to all boroughs and public municipal corporations. The objection to the ordinance that it is unreasonable can not be sustained. The presumption is in favor of its validity. Our attention was not directed to any matter that can be regarded as a substantial objection to its enforcement. It is not an attempt to collect a tax, under the guise of a police ordinance. The annual license fee of ten dollars is no more than a fair compensation for the services necessary to grant a permit under a proper investigation and "That it may be lawful for the town for the reasonable supervision of the busicouncil to enact such by-laws ness by municipal officers. Unless the and make such rules, regulations and ordi- amount of the license is manifestly unreanances as shall be determined by a majority sonable, the court will not adjudge it a tax; of them, necessary to promote the peace, McQuillin on Municipal Ordinances, Secgood order, benefit and advantage of the said borough." ordiness This power so granted was repeated in the later Act of April 2, 1831, P. L. 389, Section 5. The Act of April 7. 1845, P. L. 328, followed and declared in Section 9, that "All ordinances ordained and enacted by the town council of the Borough of Norristown, for the good government and order of said borough, shall have the same force and effect as if enacted by the Legislature of the Commonwealth." * tion 409. As already shown, it is both the right and duty of the municipal anthorities to regulate the business of a junk dealer or junk shops, in the interests of the welfare of the citizens and because of the well known fact that the place of business so often becomes a resort for the disposal of goods dishonestly obtained. The Commonwealth also recognized the temptation it offers to minors to engage in practices that develop criminals. It accordingly enacted a law intended to remove, or at least to lessen this temptation. Power to enact ordinances to promote the peace, good order, benefit and advantage of The exceptions are dismissed and the the borough, supplemented by the declara- judgment of the justice is affirmed. FORT C. P. of Huyett v. Huyett Cruel and barbarous treatment as a ground for divorce consists of such conduct in one of the married parties as to render further cohabitation dangerous to the physical safety of the other, or create in the other such reasonable apprehension of bodily harm as materially to interfere with the discharge of marital duties. Neglect by wife of household duties, indifference, bad temper, nagging, jealousy and refusal to have sexual intercourse are not such indignities to the person of a husband as will entitle him to a divorce. Report of master in divorce. * * Berks County no time measured up to the statutory re- * * A careful review of this record as return M. Bernard Hoffman for libellant. June 23, 1917. ENDLICH, P. J.-The conscientious and painstaking master to whom this case was referred has recommended the dismissal of the libel at the costs of the libellant. The latter is asking for a decree of divorce notwithstanding that recommendation. The cause of action averred is cruel and barbarous treatment and indignities to the person. The proofs show that early in the married life of these parties, in 1898, the respondent, being of a jealous disposition, began to charge the libellant, a ed by the master has satisfied us that deposiphysician, with being too intimate with his tions of the witnesses amply sustain his findfemale patients, young girls as well as mar-ings of fact, and the decisions cited by him ried women, and recklessly accused him of his views of the law resulting therefrom. infidelity with these patients, even in their Nor does the decision of the Superior Court presence and in the presence of visiting rela-in Ponthus v. Ponthus, 66 Pa. Super. Ct. tives, humiliating him and and injuring his 257, published since the master's report was practice of medicine by causing such patients filed, declare any different doctrine. It was to withdraw from his care and treatment. there ruled that in a divorce proceeding by These disputes arising in connection with the husband for cruel and barbarous treatthe libellant's general practice led him to en- ment and indignities to his person, each of gage in the special work of eye, ear, nose these constituted a distinct ground of diand throat treatment, which he is at present pursuing. The respondent became indifferent towards the libellant, slovenly about the kitchen, and whenever the libellant had a confinement or a gynecological case to treat she would refuse to act towards her husband as a wife should and to have intercourse with him. On many occasions she would not speak to him. Libellant became ill by reason of this treatment affecting his nervous system. Of this state of facts the master in his report says: vorce; that it was not indispensable to establish both of them; but that one, if sufficiently made out, was enough to justify a decree. Here the finding of the master is that neither the one nor the other is adequately proven by the testimony. It further appeared in that case that the wife had, not on rare occasions, or merely privately, but persistently and in the presence of their associates, accused the husband "not only of conduct most disgusting and degrading, but of crimes, the punishment of which would have been imprisonment for long terms,"the charge made being, as intimated by the court, of such a character that it did not feel warranted in repeating them. Under these day representing the plaintiff, we find that it is not sustained. The evidence of the alderman is specific on this point. Mr. Battenburg, the attorney, was present, and Mr. Dean, the secretary, was sworn, the defendant being in default. The only conclusion we can reach in this case is that the defendant has been guilty of laches. He has not exercised that diligence necessary to secure the preservation of his right of appeal. It is true, as was stated in McIlhaney v. Holland, 111 Pa. 634, that "if without fault of his a party desiring to appeal from a judgment of a justice of the peace is prevented from so doing by the act of the latter, an appeal may be allowed nunc pro tunc, if asked for in reasonable time." However, in the case at bar, the defendant was not misled. He simply forgot the case until his memory was revived by an execution. The rule is discharged. ORPHANS' COURT Frey's Estate. No. 2. Sale of Interest. F. devised the "remainder of the share of each child" to his executors "in trust the income as it accrues to be paid to each child and at the death of either child the principal shall of the legatees becoming bankrupt, the trustees go to his or their then surviving children." One sold her interest and the auditor distributing the accumulated income in the hands of the trustee, awarded the same to the purchaser. Exceptions tions must be dismissed. being filed to such award, HELD, that the excep No improvidence on the part of the legatee and no inability to manage her business affairs, being shown, the only intent of the testator appears to have been to provide a safe investment by his executors of about one-half of the legatee's share, paving the income to her and the principal to her children. January 2nd, 1917. EDWARDS, P. J.-Wills-Devise of Income-BankruptcyWaiving the question of our jurisdiction to entertain the motion for relief in this case, we conclude that the defendant, upon the merits of his contention, is not entitled to have an appeal nunc pro tunc. He claims that he was misdirected by the alderman, and that in consequence of the misdirection he failed to take the necessary steps to procure an appeal. The depositions show no misdirection ou the part of the alderman. Defendant himself testifies as to what happened in the alderman's office on the return day of the summons. According to his testimony he told the alderman that "he had notice of a case there." The alderman, after going back to the desk, said: "I will tell you the easiest way out of this is to take out an appeal, and there will be nothing of it." Defendant proceeds thus: "So I thought to myself I am wasting time running around here; and when I don't owe the people anything, so I didn't go right there again; it slipped my memory, and I didn't do anything more until this man," etc., referring to the execution. This statement, if it proves anything, proves a suggestion of an appeal, rather than any misdirection on the part of the alderman. As to the allegation When the account there ordered to be that there was nobody present on the return filed was finally confirmed, V. K. Keesey He used no technical language that would prevent his daughter from assigning her income as it accrued and there was nothing said by him, so far as the will divulges, that would indicate that he was averse to her prospective husband sharing in the benefit of the accrued income. Frey's Estate, 25 YORK LEGAL RECORD 141, followed. Exceptions to Auditor's report. For a previous construction of this same will, see Frey's Estate, 25 YORK LEGAL RECORD 141. was appointed auditor to distribute the bal-conveyed to said Harry E. Frank all of said ance in the accountant's hands. To his re- bankrupt's interests therein. port, exceptions were filed. R. P. Sherwood for exceptions. November 5, 1917. Ross, J.-The facts in this case have all been agreed upon and are attached to the auditor's report. They are in part as follows: The decedent died September 7th, 1882, leaving a will, which was duly probated, providing inter alia, that at the death of his widow all his estate, not specifically devised or bequeathed, shall be divided between his children, Benton S. Frey, Emma Eisenhart, Mary Frey and the living children of a deceased daughter, who had been married to E. Myers, in equal shares. Then in the following language: "Twenty-five thousand ($25,000) dollars of the share of my estate herein devised and bequeathed to each of my daughters and to my son respectively, on my wife's death, including the house and lots devised to them respectively, shall be at the absolute disposal of each daughter and of my said son. But the remainder of the share of each daughter and of my son, shall be held in trust by my executors, and by them invested in the registered loan of the United States or of the State of Pennsylvania, and the income as it accrues, paid to each daugh ter and to my son respectively so long as they shall respectively live. "At the death of either daughter or of my said son, the principal shall go to her or his then surviving children, and if the son or daughter so dying shall leave no surviving children, then the said principal shall go to my heirs in the shares they would be entitled to receive under the intestate laws." Under the facts agreed upon it is evident that at the time the testator made his will, | he knew that Mary Frey, one of the daughters named in the will, was engaged to W. T. Nelson. It is also a fact that she afterwards married the said W. T. Nelson, and that two children were born and are now living." The surviving testamentary trustee, Kerwin L. Eisenhart, filed his account of said trust in the Orphans' Court of this county, showing, inter alia, a balance of income in his hands of $976.58. That account was absolutely confirmed by this court and at the request of all interested parties the said Kerwin L. Eisenhart was discharged and the Security, Title and Trust Company of York, Pennsylvania, was appointed trustee under the will. The said Eisenhart paid over to his succeeding trustee, the Security, Title and Trust Company, the said balance of $976.58, and this balance was distributed by the auditor appointed by this court, after deducting expenses of the audit, to Harry E. Frank, the said purchaser of the interests of Mary Nelson at the said public sale of the trustee in bankruptcy. Before the Auditor, Mary Nelson claimed the said balance, and alleged as the foundation of her claim that the money should come to her as it was money which accrued for her under the herein before quoted provision of her deceased father's will, which she contends, through her attorney, created a "separate use trust," and also contends that if it was not willed as a "separate use trust," the provision of the will amounts to and is a provision which created a "spendthrift trust." The claims seems to have been strenuously urged before the Auditor whose report to this Court indicates the extraordinary care and study with which he has analyzed the rather complex history of the trust funds in question. After a careful reading of his report and a tedious study of the authorities, the Court agrees with his conclusions. A study of the will and the surrounding circumstances at the time of the execution of the will, fails to discover any indication that the testator had any intention of making an independent provision for his daughter Mary. It is rather apparent that he desired to keep the bulk of his accumulations in the Alexander Frey blood after it had served and benefitted his then living descendants by invoking the intestate law, in the event of the death of his immediate descendants without issue. Mary Nelson, nee Frey, on March 13, 1909, was adjudged a voluntary bandrupt by the District Court of the United States of America for the Middle District of Pennsylvania, and subsequently a trustee in bankruptcy sold the interest of said bankrupt in the said trust fund at public sale to Harry He used no technical language that E. Frank; which said sale was duly confirmed would prevent his daughter from assigning by said District Court, and said trustees her income as it accrued and there was Work Legal Record Vol. XXXI THURSDAY, NOVEMBER 15, 1917. No. 27 W. C. Alexander for exceptions. March 14, 1917. BROOMAL, J.-The auditor has allowed a claim of Mary J. Burk against the decedents' estate, amountnothing said by him, so far as the will divulges, that would indicate that he was and this is excepted to. It appears from ing to one hundred and sixty-four dollars, averse to her prospective husband sharing in the auditor's report that the claimant is a the benefit of the accrued income. At the sister of the decedent. She came to live time the will was executed it was settled with him five years before his death, under law that the husband would be entitled to a promise that he would give her a home as its benefits; Torbet v. Evans, 1 Yeats long as he lived. While thus living with 432; Evans v. Knorr, 4 Rawle 72; Heck v. Clippinger, 5 Pa. 387. It is not necessary to add anything to the Auditor's very comprehensive report in explanation of his rulings on hoth branches of this case. That the provision in the will is not a spendthrift clause, has been clearly decided by this Court in an opinion rendered by the late Judge Bittenger; Frey's Estate, 25 Y. L. R. 141. In that opinion is cited the case of Kunkel v. Kemper, 32 Pa. Sup. Ct. 360. Those cases plainly illustrate the principles, which we think, are applicable to the contentions now advanced by the claim ant. him, and after he became sick, she performed services for him by giving him his medicine, taking care of his room, sitting up with him at nights and attending to the commode. These services extended from Febweeks, and again from March 24, 1914, to ruary 1, 1913, to March 1, 1914, less two May 24, 1914. Evidence was submitted tending to show that during the first period these services were reasonably worth three dollars a week, and that during the second peried, one dollar per week. The decedent died on December 29, 1914. There was evidence that upon an occasion, date not given the decedent said he wanted the claimant to have something, but this is nothing more than an expression of an intention. It is no evidence of a contract; Gerz's Exrx. v. Demarra's Exors., 162 Pa. 530. decedent by a codicil to his will, dated May 24, 1904, bequeathed to the claimant one Delaware Co hundred and fifty dollars, and by another codicil, dated February 17, 1913, he revoked it. It may be that the declaration that he while this bequest was in force. If so, the wanted the claimant to have something was Service-revocation was a change of intention. There was no evidence of any demand by the claimant to the decedent for payment for these services. The exceptions filed by Mary Nelson to the report of the Auditor are dismissed and the report is hereby confirmed. O. C. of Wells' Estate Where a sister lives with a brother under a promise that he would give her a home, and while she is thus living with him he becomes ill, the sister is not entitled to compensation and a claim against the brother's estate will not be sustained. In such case a statement by the brother that he wanted the sister to have something, is not sufficient to establish a contractual relation. The It is a general rule that claims against decedents' estates should be critically scrutinized. In Carpenter v. Hays, 153 Pa. 432, it was said by Justice Mitchell, "Claims against a dead man's estate, which might have been made against himself, while livWhere services are rendered there is an im-ing, are always subjects of just suspicion plied contract to pay for them, excepting in case and our books from Graham v. Graham, 34 of parent and child, or where a condition of family relationship is shown to have existed. Family relationship is such living together in a common abode, that services may reasonably be expected by the recipient to be gratuitous, and may also be considered by the giver to be without the expectation of compensation. Pa. 475, to Miller's Estate, 136 Pa. 249, are full of expressions by this court of the necessity of strict requirement of proof and the firm control of juries in such cases." In the absence of proof of any express contract, this claim must rest upon the im Exceptions to report in estate of Moses plied assumpsit arising upon proof of the Wells, deceased. performance of the services. The relation |