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Vol. XXXI

No. 26

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tion that ordinances for the good government and order of the borough shall have the

force of Acts of the Legislature, bring the THURSDAY, NOVEMBER 8, 1917.

authority conferred within the power known

as "the general welfare clause." This borough is invested with the authority to clause is frequently interpreted as granting pass a valid ordinance of like effect.

the power to pass all ordinances which are The brief submitted by the borough solici- necessary to the good order and well being tor fully and ably supports the affirmative of the municipality; 28 Cyc. 705. It was answer to this inquiry.

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 exer- the limitations upon the exercise of those cise of police power, within their boundaries. which require ordinances to be reasonable The measure of power is subject to the and not in conflict with the state or federal legislative discretion; 28 Cyc. 693.

constitutions." “The Legislature may, in the exercise of

This case also intimates that without the its pɔlice power, empower the authorities of enactment of the general welfare clause, in a mnnicipality to make such rules and regu- favor of the borough, the municipality poslations as they shall deem necessary for the sesses the necessary authority to pass the good order of the municipality, to regulate ordinances under the common law power its roads, streets and common sewers, to pro- incident to all boroughs and public municitect the citizens in their persons and property, pal corporations. and to promote the public health and to The objection to the ordinance that it is ordain penalties for the violation of such unreasonable can not be sustained. The regulations and collect the same;" Com. presumption is in favor of its validity. v. Shafer, 32 Pa. Superior Ct. 500, cit

Our attention was not directed to any ing a long line of cases in support of the matter that can be regarded as a substantial text.

objection to its enforcement. It is not an The Borough of Norristown was char attempt to collect a tax, under the guise of tered and created by a special enactment of a police ordinance. The annual license tee the Legislature, passed March 31, 1812, P. of ten dollars is no more than a fair comSection 6 declares:

pensation for the services necessary to grant “That it may be lawful for the town for the reasonable supervision of the busi

a permit under a proper investigation and council

to enact such by-laws and make such rules, regulations and ordi

Unless the

ness by municipal officers. nances , as shall be determined by a majority sonable, the court will not adjudge it a tax;

amount of the license is manifestly unreaof them, necessary to promote the peace, McQuillin on Municipal Ordinances, Secgood order, benefit and advantage of the

tion 409. said borough."

As already shown, it is both the right This power so granted was repeated in and duty of the municipal anthorities to the later Act of April 2, 1831, P. L. 389, regulate the business of a junk dealer or

junk shops, in the interests of the welfare The Act of April 7. 1845, P. L. 328, of the citizens and because of the well followed and declared in Section 9, that known fact that the place of business so "All, ordinances ordained and enacted by often becomes a resort for the disposal of the town council of the Borough of Norris- goods dishonestly obtained. town, for the good governinent and order The Commonwealth also recognized the of said borough,

shall have the temptation it offers to minors to engage in same force and effect as if enacted by the i practices that develop criminals. It accordLegislature of the Commonwealth.”

ingly enacted a law intended to remove, or Power to enact ordinances to promote the! at least to lessen this temptation. 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.

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C. P. of

Berks County no time measured up to the statutory reHuyett v. Huyett

quirements, supported by the authorities, as

to what constitutes cruel and barbarous Divorce-Cruel and Barbarous Treatment treatment and indignities to the person. -Indignities to Person.

What cruel treatment consists of is: "Such

conduct in one of the married parties as to Cruel and barbarou s treatment as a ground render further cohabitation dangerous to the for divorce consists of such conduct in one of the married parties as to render further cohabitation physical safety of the other, or create in the dangerous to the physical safety of the other, or other such reasonable apprehension of bodily create in the other such reasonable apprehension harm as materially to interfere with the disof bodily harm as materially to interfere with the charge of marital duties. discharge of marital duties.

Neglect by wife of household duties, indiff- of household duties, indifference, bad temerence, bad temper, nagging, jealousy and refusal per, nagging and jealousy are not such in. to have sexual intercourse are not such indignities dignities to the person of a husband as will to the person of a husband as will entitle him to entitle him to a divorce; and as to the allea divorce.

gation that the respondent refused to have Report of master in divorce.

sexual intercourse with the libellant, it is M. Bernard Hoffman for libellant. .

sufficient to refer to Johnson v. Johnson, 31

Pa. Super. Ct. 53; Pratt v. Platt, 38 id. June 23, 1917 ENDLICH, P. J.-The

551.

The testimony exhihits a state conscientious and painstaking master to of domestic infelicity, but it does not present whom this case was referred has recommend

a case of cruel and barbarous treatment by ed the dismissal of the libel at the costs of the wife of her husband, or indignities to the libellant. The latter is asking for a his person, which rendered his condition indecree of divorce notwithstanding that re- tolerable and life burdensome within the commendation. The cause of action averred meaning of the statute. To entitle a libellant is cruel and barbarous treatment and indig- to a divorce it is necessary for him fully to nities to the person. The proofs show that sustain by the testimony the cause as set early in the married life of these parties, in forth as the grounds thereof and no other." 1898, the respondent, being of a jealous

A careful review of this record as returndisposition, 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 vorce; that it was not indispensable to espursuing. The respondent became indiffer- tablish both of them; but that one, il sufficent towards the libellant, slovenly about the iently made out, was enough to justify a kitchen, and whenever the libellant had a decree. Here the finding of the master is confinement or a gynecological case to treat that neither the one

nor the other is adeshe would refuse to act towards her husband quately proven by the testimony. It further

a wife should and to have intercourse appeared in that case that the wife had, not with him. On many occasions she would

on rare occasions, or merely privately, but not speak to him. Libellant became ill by persistently and in the presence of their asreason of this treatment affecting his nervous sociates, accused the husband “not only of system.

Of this state of facts the master in conduct most disgusting and degrading, but his report says:

of crimes, the punishment of which would "An examination of the entire testimony have been imprisonment for long terms," – fully justifies a finding that the respondent the charge made being, as intimated by the was an extremely jealous and petulant wo- court, of such a character that it did not feel man, and bad though her conduct was, it at i warranted in repeating them.

Under these

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circumstances it was held that it was not day representing the plaintiff, we find that
necessary, as assumed by the master in that it is not sustained. The evidence of the
case, for the husband to prove express malice alderman is specific on this point. Mr. Bat-
in the wife's assertions. No such require tenburg, the attorney, was present, and Mr.
ment was made by the master in this case. Dean, the secretary, was sworn, the defend-
Indeed, the case cited, carefully scrutinized, ant being in default.
seems to be entirely eonsistent with the dis- The only conclusion we can reach in this
position recommended in the present one. case is that the defendant has been guilty of

The report of the master is approved laches. He has not exercised that diligence and the libel dismissed at the costs of the necessary to secure the preservation of his libellant.

right of appeal. It is true, as was stated in McIlhaney v. Holland, in Pa. 634, that

"if without fault of his a party desiring to C. P. of

Lackawanna Co. appeal from a judgment of a justice of the Live Stock Ins. Co. v. Patterson.

peace is prevented from so doing by the act

of the latter, an appeal may be allowed Appeal nunc pro tunc - Laches. nunc pro tunc, if asked for in reasonable Where a defendant in a suit before a justice of defendant was not misled. He simply for.

time." However, in the case at bar, the
the peace fails to take an appeal within twenty
days, and depositions show that he had notice of got the case until his memory was revived
the case on the return day of the summons and by an execution.
made no effort to appeal until after execution The rule is discharged.
issued, he is guilty of laches and an appeal nung
pro tunc will be refused.

ORPHANS' COURT
Rule for an appeal nunc pro tunc.
C. A. Battenburg for rule.
Price, Price & Price, contra.

Frey's Estate. No. 2.
January 2nd, 1917. Edwards, P. J.-Wills Devise of Income---Bankruptcy-
Waiving the question of our jurisdiction to

Sale of Interest. entertain the motion for relief in this case, F. devised the "remainder of the share of each we conclude that the defendant, upon the child" to his executors "in trust

the inmerits of his contention, is not entitled to come as it accrues to be paid to each child have an appeal nunc pro iunc. He claims and at the death of either child the principal shall that he was misdirected by the alderman, of the legatees becoming bankrupt, the trustees

go to his or their then surviving children." One and that in consequence of the misdirection sold her interest and the auditor distributing the he failed to take the necessary steps to pro- accumulaced income in the hands of the trustee, cure an appeal. The depositions show no awarded the same to the purchaser. Exceptions misdirection ou the part of the alderman. tions must be dismissed.

being filed to such award, Held, that the excepDefendant himself testifies as to what hap- Ni, improvidence on the part of the legatee and pened in the alderman's office on the return' no inability to manage her business affairs, being day of the summons. According to his tes shown, the only intent of the testator appears to

have been to provide a safe investment by his extimony he told the alderman that “he had ecutors of about one-half of the legatee's share, notice of a case there." The alderman, after paying the income to her and the principal to her going back to the desk, said: “I will tell children. you the easiest way out of this is to take out

He used no technical language that would prean appeal, and there will be nothing of it.” it accrued and there was nothing said by him, so

vent his daughter from assigning her income as Defendant proceeds thus: “So I thought far as the will divulges, that would indicate that to myself I am wasting time running around he was averse to her prospective husband sharing here; and when I don't owe the people any in the benefit of the accrued income. thing, so I didn't go right there again; it

Frey's ¡Estate, 25 YORK LEGAL RECORD 141, fol

lowed.
slipped my memory, and I didn't do any-
thing more until this man," etc., referring

Exceptions to Auditor's report.
to the execution. This statement, if it For a previous construction of this same
proves anything, proves a suggestion of an will, see Frey's Estate, 25 York LEGAL
appeal, rather than any misdirection on the RECORD 141.
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

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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.

The surviving testamentary trustee, KerR. P. Sherwood for exceptions.

win L. Eisenbart, filed his account of said Niles & Neff, contra.

trust in the Orphans' Court of this county,

showing, inter alia, a balance of income in November 5, 1917. Ross, J.—The facts his hands of $976.58. in this case have all been agreed upon and That account was absolutely confirmed are attached to the auditor's report. by this court and at the request of all interThey are in part as follows:

ested parties the said Kerwin L. Eisenhart The decedent died September 7th, 1882, was discharged and the Security, Title and leaving a will, which was duly probated, Trust Company of York, Pennsylvania, was providing inter alia, that at the death of his appointed trustee under the will. widow all his estate, not specifically devised The said Eisenhart paid over to his sucor bequeathed, shall be divided between his ceeding trustee, the Security, Title and children, Benton S. Frey, Emma Eisenhart, Trust Company, the said balance of $976.58, Mary Frey and the living children of a de- and this balance was distributed by the auceased daughter, who had been married to ditor appointed by this court, after deducting E. Myers, in equal shares. Then in the expenses of the audit, to Harry E. Frank, following language: “Twenty-five thousand the said purchaser of the interests of Mary ($25,000) dollars of the share of my estate Nelson at the said public sale of the trustee herein devised and bequeathed to each of my in bankruptcy. daughters and to my son respectively, on my Before the Auditor, Mary Nelson claimed wife's death, including the house and lots the said balance, and alleged as the foundadevised to them respectively, shall be at the tion of her claim that the money should absolute disposal of each daughter and of my come to her as it was money which accrued said son. · But the remainder of the share of for her under the hereinbefore quoted proeach daughter and of my son, shall be held vision of her deceased father's will, which in trust by my executors, an by them in- she contends, through her attorney, created vested in the registered loan of the United a "separate use trust,” and also contends States or of the State of Pennsylvania, and that if it was not willed as a "separate use the income as it accrues, paid to each daugh trust;" the provision of the will amounts to ter and to my son respectively so long as and is a provision which created a "spendthey shall respectively live.

thrift trust." "At the death of either daughter or of my The claims seems to have been strenusaid son, the principal shall go to her or his ously urged before the Auditor whose rethen surviving children, and if the son or port to this Court indicates the extraordidaughter so dying shall leave no surviving nary care and study with which he has children, then the said principal shall go to analyzed the rather complex history of the my heirs in the shares they would be en- trust funds in question. titled to receive under the intestate laws." After a careful reading of his report

and Under the facts agreed upon it is evident a tedious study of the authorities, the Court that at the time the testator made his will, I agrees with his conclusions. he knew that Mary Frey, one of the daugh- A study of the will and the surrounding ters named in the will, was engaged to W. circumstances at the time of the execution T. Nelson. It is also a fact that she after- of the will, fails to discover any indication wards married the said W. T. Nelson, and that the testator had any intention of makthat two children were born and are now ing an independent provision for his daughliving.”

ter Mary. It is rather apparent that he Mary Nelson, nee Frey, on March 13, desired to keep the bulk of his accumula1909, was adjudged a voluntary bandrupt tions in the Alexander Frey blood after it by the District Court of the United States had served and benefitted his then living of America for the Middle District of Penn- descendants by invoking the intestate law, sylvania, and subsequently a trustee in bank- in the event of the death of his immediate ruptcy sold the interest of said bankrupt in descendants without issue. 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

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Vol. XXXI

No. 27

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W. C. Alexander for exceptions.
Work Legal Record

Garrett E. Smedley, contra.

March 14, 1917. BROOMAL, J.-The THURSDAY, NOVEMBER 15, 1917.

auditor has allowed a claim of Mary J.

Burk against the decedents' estate, amountnothing said by him, so far as the will

ing to one hundred and sixty-four dollars, divulges, that would indicate that he was and this is excepted to.

It appears from 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 Rawie 72; Heck him, and after he became sick, she performv. Clippinger, 5 Pa. 387.

ed services for him by giving him his mediIt is not necessary to add anything to the cine, taking care of his room, sitting up with Auditor's very comprehensive report in ex- him at nights and attending to the complanation of his rulings on hoth branches mode. These services extended from Febof this case.

ruary 1, 1913, to March 1, 1914, less two That the provision in the will is not a weeks, and again from March 24, 1914, to spendthrift clause, has been clearly decided May 24, 1914. Evidence was submitted by this Court in an opinion rendered by the tending to show that during the first period late Judge Bittenger; Frey's Estate, 25 Y. these services were reasonably worth three L. R. 141. In that opinion is cited the dollars a week, and that during the second case of Kunkel v. Kemper, 32 Pa. Sup. Ct. peried, one dollar per week. The decedent 360. Those cases plainly illustrate the died on December 29, 1914. There was principles, which we think, are applicable to evidence that upon an occasion, date not the contentions now advanced by the claim- given the decedent said he wanted the ant.

claimant to have something, but this is nothThe exceptions filed by Mary Nelson to ing more than an expression of an intention. the report of the Auditor are dismissed and It is no evidence of a contract; Gerz's Exrx. the report is hereby confirmed.

v. Demarra's Exors., 162 Pa. 530. The decedent by a codicil to his will, dated May

24, 1904, bequeathed to the claimant one 0. C. of

Delaware Co hundred and fifty dollars, and by another Wells' Estate

codicil, dated February 17, 1913, he revoked

it. It may be that the declaration that he Decedents' Estates -- Decedents' Debts

wanted the claimant to have some:hing was Claim for Nnrsing~Family Relationship while this bequest was in force. If so, the -Presumption of Gratuitous Service-revocation was a change of intention. There Contract-Burden of Proof.

was no evidence of any demand by the Where a sister lives with a brother under a claimant to the decedent for payment for promise that he would give her a home, and these services. while she is thus living with him he becomes ill, the sister is not entitled to compensation and a

It is a general rule that claims against claim against the brother's estaie will not be sus decedents' estates should be critically scrutitained.

nized. In Carpenter v. Hays, 153 Pa. In such case a statement by the brother that he 432, it was said by Justice Mitchell, “Claims wanted the sister to have something, is not suffici- against a dead man's estate, which might sent to establish a contractual relation.

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.

Pa. 475, to Miller's Estate, 136 Pa. 249, Family relationship is such living together in a

are full of expressions by this court of the common abode, that services may reasonably be necessity of strict requirement of proof and expected by the recipient to be gratuitous, and the firm control of juries in such cases." may also be considered by the giver to be without in the absence of proof of any express conthe expectation of compensation.

tract, this claim must rest upon the imExceptions to report in estate of Moses plied assumpsit arising upon proof of the Wells, deceased.

performance of the services. The relation

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