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Pa. 31.

nurse.

of the parties does not rebut the presump

Martin's Estate. tion, except in the case of parent and child; Wili-Construction--Children of Deceased Gerz's Exrx. v. Demarra's Exrs., supra.

Brothers and Sisters. Or where a condition of family relationship is shown to have existed ; Shuhart's Estate, "to my brothers and sisters,or their heirs, in equal

Testator bequeathed the residue of his estate 154 Pa. 230; Evans' Estate, 60 Pa. Supr. shares, the child or children of any deceased Ct. 83. As to a family relationship, the brother or sister to take by representation of his burden of showing it was upon the deced- her, or their parents." The auditor distributed ent's estate; Casky v. Cineavy, 60 Pa. Supr. the fund to the surviving brother and sisters and

to the children of a deceased brother and sister. Ct. 87. What is meant by family relation- Held, that exceptions filed to his report must be ship as distinguished from family kinship is dismissed. such a living together in a common abode, The contention that the testator meant to give as that the services might reasonably be

his estate only to the child or children of such pected by the recipient to be rendered gratu- time he executed his will cannot be sustained.

brother or those sisters who were living at the ituously, and might likewise be considered A study of the whole will and the language by the giver to be given without the expecta- used by the testator impels the conclusion that tion of compensation.

the testator did not intend to exclude the children This is not the case of a domestic servant, the share which their deceased parent would

of any of his deceased brothers or sisters from where wages are presumed to have been paid have been entitled to had they survived him. as they are earned in accordance with the Exceptions to Auditor's report. rule announced in McConnell's Appeal, 97

R. P. Sherwood for exceptions.
The claimant was a sister of the
decedent, and her services were those of a

V. K. Keesey, contra.
Such person is not a domestic ser-

November 5th, 1917. Ross, J.-—In his vant; Ranninger's Appeal, 118 Pa. 20; will the decedent provided inter alia as folLewis' Estate, 156 Pa. 337; Davies' Estate, lows: "And after the payment of all col60 Pa. Supr. Ct. 360.

lateral inheritance taxes upon all moneys The pivotal question therefore is, were hereinbefore given and bequeathed to any these services gratuitous. The pertinent person, or for any purpose whatsoever, I facts from which this question must be solv- direct each of said trust companies to pay ed are these. Those in her favor are, she the balance of the moneys belonging to my rendered the services to an invalid brother estate which shall then be in their hands, who received them. The decedent said he and which I intend shall be the whole of my wanted her to have something. The auditor estate not hereinbefore especially bequeathed, who heard the witnesses has approved her to my brothers and sisters, or their heirs, in claim. The facts against her are, she was equal shares, the child or children of any an inmate of the decedent's abode, without deceased brother or sister to take by reprecharge, having made her home with him for sentation of his, her, or their parents.” several years. She was not paid for any of

The will was executed January 12th, her services. She made no demand for 1912. compensation at the end of her periods of

The testator died December 31st, 1913. service.

She made no demand of the deced- At the time of his death there survived ent in his lifetime.

him, Ida Livingston, Kate Peters and Sarah The evidence to support such claim should A. Martin, sisters, and Samuel H. S. Martin, be clear, distinct and convincing; Winnings a brother. v. Hearst, 17 Pa. Supr. Ct. 314; Coulston's One of the decedent's sisters, Malinda Estate, 161 Pa. 161.

Miller, died in 1904, leaving to survive het, The conclusion is irresistible that when two children who are still living, namely, the claimant, making her home with her Martin M. Miller and Leah Catharine brother, without charge, performed the Miller; and one brother, David Martin, kindly offices for her invalid brother, which died January 2nd, 1910, leaving to survive constitute the services for which the claim him six children, who are still living, is now made, she did so without expectation namely, Beatrice Snyder (nee Martin), of compensation, and that while the deced- Austin Martin, Walter Martin, Ralph D. ent thought that neverless she ought to be Martin, Beulah E. Martin and Lucy E. compensated he did not think so to the ex- Wilson (nee Martin). tent of carrying such thought into execution. The exceptions are dismissed and the

We therefore sustain the exception, report of the Auditor is hereby confirmed.

P. L. 313.

Before the auditor the three surviving 0. C. of

Allegheny Co. sisters and the one surviving brother claimed

Hunkley's Estate. all the residuary estate, contending through their attorney, that they, and they only, Descent and Distribution-Husband's Life were entitled thereto, in exclusion of the

Estate_Wife Without Kin-Charitable "child or children of any of the deceased

Uses-Failure of-Act of April 8, 1833, brother or sister of the decedent."

The auditor found that, "the testator Where a married woman devised her real clearly intended that the residue of his estate estate to her husband for life with remainder to should be paid to the same persons who charitable uses, and died without issue or known would have inherited it had he died intestate, band took a fee simple estate and on his death it

kindred, and the charitable uses failed, the husleaving no widow, issue or parent, that is, to descended to his heirs. Section 12 of the Act of the surviving brothers and sisters and the April 8, 1833, P. L. 313, prevented its escheat to children of any brothers and sisters who had the Commonwealth. predeceased him, the latter to take their de- Exception to accountant's report. ceased parents' share," and he accordingly

H. R. Phillips for accountants. awarded the balance on the account, after deducting the costs of audit.

Clarence Burleigh, Jr., and Diamond & The ruling of the auditor is the subject Zacharias for heirs. of the exceptions on the part of the surviv- July 7, 1917. MILLER, J.—The quesing brother and sisters of the deceased. tion is the right of a husband's heirs, he

They now contend that the testator in-being devised a life estate, to take land in tended by his will to give all the residue of | fee in the absence of heirs or known kindred his estate to the brothers and sisters who lof the wife. survive him, and none of it to the children The decedent died January 28, 1914, of any of his deceased brothers and sisters. testate. By her will she devised to her hus

The ablc attorney who argues to sustain band her real estate for life, “and after his the exceptions says that the direction in the death to be sold by my executors hereinafter will that, "the child or children of any de- named, and the proceeds of such sale to be ceased brother or sister to take by represen- equally divided between the St. Paul's tation of his, her or their parents," must be Orphan Asylum at Crafton and the German construed that the testator meant, "only the Roman Catholic Orphan Asylum of Allechild or children of that brother or those gheny County," with power after the hussisters who were living at the time he exe-) band's death in the executor to sell for the cuted his will." We cannot agree with the purpose named; and also with direction, counsel in that interpretation. A more rea- I should a reasonable offer for said real estate sonable, just and equitable interpretation be received during the lifetime of her huswas rendered by the auditor.

band, that the executor should sell, in which The language used in the opinion rendered case the husband should receive one-half of by the Supreme Court in the case of Sorver the purchase price in lieu of his life estate, v. Berndt, 1o Pa. 214 (cited by the auditor) the other half to be divided as directed by is applicable here, “It is doing no violence to the previous portion of the will. the will to construe ‘or' as 'and,' and it was The husband, Frank Hunkley, died April doubtless used in that sense by the testator.” 7, 1916. The real estate had not been sold The analysis by the auditor of the language during his life; after his death, the executor used in the will is entirely reasonable and sold the same, filed his account thereof, and his conclusions do not violate any of the es- the balance for distribution is the proceeds tablished rules for the construction of wills. of said sale.

A study of the whole will and the lan- The decedent died within a day or two guage used by the eeståtor impels the con- after the making of her will. She left no clusion that the testator did not intend to lineal descendants, father, mother, brother, exclude the children of any of his deccased sister, nephew or niece, nor any other known brothers or sisters from the share which kindred, excepting her busband. their deceased parent would have been enti-i At the audit of her husband's estate his tled to had they survived him. The logic heirs or kindred were fully set forth and of the Auditor's report fully demonstrates their names are offered as distributees in this this conclusion.

estate. An exception is hereby entered for the The purpose for which the land was to exceptants, if they desire it.

be sold failed, by reason of the death of the

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testatrix within thirty days, as provided by Exceptions to auditor's report in the estate Section 11 of the Act of 1855, P. L. 332. of Mattic H. King. As she made no provision for her residuary estate and as the charitable institutions

Robinson, Marsh & Kauffman for ex

ceptions. named cannot take, she died intestate as to this real estate and. the parties entitled W. C. Alexander, contra. thereto must be ascertained under the intes-i tate law, and, if there be none, the fund! May 9, 1917. BROOMALL, J.— The only must escheat to the Commonwealth. question which is pressed to the attention of

Section 10 of the Act of April 8, 1833, the court is whether the construction which provides: "In default of known heirs or the auditor gives to the sixth clause of the kindred competent as aforesaid, the real estate of such intestate shall be vested in his will of the decedent is correct. widow, or, if such intestate were a married This clause is as follows: "I give and bewoman, in her surviving husband, for such queath of my money now lying in the Philaestate as the intestate had therein; and in delphia Saving Fund, Seventh and Walnut, such case, the widow shall be entitled to the The Western Saving Fund, Tenth and whole of the personal estate absolutely." Walnut, and the Union Trust Company, Section 12 of the same act provides: "In Chestnut Street, Philadelphia, to my sister, default of all such known heirs or kindred, Georgie E. Windle, of Seattle, Washington, widow or surviving husband as aforesaid, five hundred dollars, and to my nephew the real and personal estate of such intestate Robert Henry Windle, of Seattle, Washingshall go to and be vested in the Common- ton, son of George E. Windle, the sum of wealth by escheat.”

two hundred and fifty dollars, and the reIt will be observed that Section 12 pre- mainder in the banks to my brother, Robert vents the escheat of an estate, if there was a Palmer Metz.surviving spouse; and that Section 10 vests

At the date of the will, the decedent had the estate of the intestate in the surviving

on deposit in the three banks named about spouse in default of known heirs or kindred. thirteen hundred and fifty dollars and had In Broadtop Coal & Iron Co. v. Riddles

on deposit about twenty-one hundred and burg Coal & Iron Co., 65 Pa. 435, it was fifty dollars in the Real Estate Title Insurdecided that where one died seized of land, intestate, without issue or known collateral Savings Bank. The exceptant contends

ance & Trust Company and the First Penny kindred, leaving a widow, the land passed that the remainder referred to in the will to her under Section 10 of the Act afore-includes these moneys.

The auditor did said. Under this authority and the further not agree with him, and in this conclusdoctrine in Lufberry's Appeal, 125 Pa. 513, ion, we think he is right. and Mudersbaugh's Estate, 131 Pa. 278, the fund should be awarded to the personal

In this sixth clause the testatrix starts off representative of Frank Hunkley's estate; to dispose of the moneys in the three banks but as his estate has been audited, debts paid named. She says, “of my money now lying and his next of kin ascertained, there seems in” naming three banks she bequeaths two no necessity for awarding it to his personal legacies amounting to seven hundred and representative. Therefore, it may be de- fifty dollars. This leaves a remainder. creed to his kindred as shown in the auait | There is no other remainder suggested than of his estate, directly.

the remainder in the three banks after de

ducting seven hundred and fifty dollars. 0. C. of

Delaware Co. This is the remainder which she bequeaths King's Estate.

in the same clause in the words, "and the Wills Construction of Will Bequest of | Robert Palmer Metz.”

remainder in the banks to my brother, Money in Bank. Testatrix bequeathed by one clause in her will

We therefore enter the following decrce: specific portions of sums deposited in three banks

It is ordered, adjudged and decreed that which she named, to a sister and a nephew, and in the same clause willed, "and the remainder in the exceptions to the auditor's report be disthe banks to my brother.” She had funds deposit- missed; that the auditor's report be confirm. ed in two other banks. Held, that the brother ed; and that distribution be made in accordtook only the balance in the three banks specific- ance therewith. ally named in that clause.

for a

No.28

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that the title should be a complete digest of Work Legal Record

the contents of the act. It is sufficient if it

fairly and clearly gives notice of the subject Vol. XXXI THURSDAY, NOVEMBER 22, 1917.

matter so as reasonably to lead to an inquiry

into the body of the act. QUARTER SESSIONS

There are several other states that have,

in substance, the same restriction that PennQ. S. of

Lackawanna Co.

sylvania has as to the titles of acts of assemCom. v. Boero.

bly. We notice the simple language used

in the constitution of New Jersey : "To Constitutional Lau'-Title of Acts - Ex avoid improper influences which may result

pressing Subject in Titie-Possession of from intermixing in one and the same act Ferret-Act 1915, P. L. 140.

such things as have no proper relation to

each other, every law shall embrace but one of 21, L. hibiting the breeding or selling of ferrets, or object, and that shall be expressed in the having such animals in possession, except by title.” The Iowa constitution requires that license from the S!ate Board of Game Commis- "every law shall embrace but one object, sioners, and providing penalties for the violation which shall be expressed in its title.” The thereof, is strictly and closely germane to the subject matter of the act as expressed in the title, provision in the Maryland constitution is and is therefore not in violation of Section 3., that "every law enacted by the legislature Article 3, of the constitution.

shall embrace but one subject, and that Appeal from summary conviction. shall be described in the title." We refer

Geo. W. Maxes, District Attorney, for to these constitutional clauses from the Commonwealth.

states named because the courts of these

states, in several decisions, emphasize the Taylor & Lewis, for Defendant.

inquiries: Does the title embrace one subEDWARDS, P. J., July 2, 1917.—Defend-ject only? Is that subject clearly expressed? ant was convicted before an alderman of the And are the provisions of the statute, in its city of Scranton on a charge of “having in several sections, incidental and germane to his possession a ferret without first having the subject and upon matters properly conobtained a license from the Board of Game nected therewith? Commissioners of the Commonwealth." The title of the act now under consideraThere are no facts in dispute. It is ad- tion is as follows: mitted on behalf of defendant that he was “An Act for the better protection and in possession of such an animal and that he preservation of game, game quadrupeds and had no such license.

game birds in Pennsylvania, and prescribing The only defense suggested is that section penalties for violations of its several pronine, of the Act of April 21, 1915, P. L. visions.". The act contains twelve sections 146, passed for the better protection and and is comprehensive in its scope. It propreservation of game, etc., is unconstitu- hibits hunting on Sunday; it prescribes the tional because the title gives no notice tbat open season for wild turkey, grouse, pheasbeing in possession of a ferret is unlawful. ant, quail, raccoon, bear, deer, etc., etc.; it There is no question about the law appli- provides that certain sales of game are uncable in such a The title of a bill, lawful, that no can hunt for wages or being intended to give notice of the pro- bire, that game shall not be shipped by posed legislation, must express the purport parcel post, express, freight, etc., except of the Act with sufficient definiteness to under certain conditions, and it has several notify those who may be affected by the other provisions properly relating to the Act of its real purpose. Where the title subject matter expressed in the title. It is imports one subject, while the bill itself the ninth section of the act that defendant shows a different subject to be its purpose, claims is unconstitutional. This section the title is misleading, and the Act is un- reads as follows: constitutional; Rogers v. Manufacturers' “That from and after the passage of this Improvement Co., 109 Pa. 109. In fram- act, it shall be unlawful for any person in ing the title of an Act of Assembly, there this Commonwealth to breed or sell ferrets, is a danger of being too minute and circum- or in any manner to offer to sell ferrets, or stantial; and, along this line, we have many to have such animals in possession, except cases which decide that it is not necessary by virtue of a license to be issued by the

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Board of Game Commissioners of this Com- to the services of such children and obliges himmonwealth; which said license may be self to support, maintain and educate such

children. issued by the Board of Game Commission

When a child is deserted by both parents the ers, upon application made by any person, primary responsibility for its support rests on the and the payment of twenty-five dollars upon father. the part of a dealer of or dealer in ferrets,

M. H. Spicker for Commonwealth. and one dollar upon the part of such person

Roscoe R. Koch for Defendant, as may desire to own a ferret without breeding same. Each and any person violating September, 1917. Koch, J.—The prosany provision of this section shall, upon ecution in this case is based upon the inforconviction, be liable to a penalty of twenty- mation of Mary Miller, the grandmother of five dollars for each ferret bred for sale, i Margaret Walburn, aged four years, a sold, or in any manner offered for sale or minor child of the defendant. The child's had in possession, contrary to the provisions mother is a daughter of said Mary Miller. of this section. Each and every ferret Mr. and Mrs. Walburn were married in found in possession of any person in this December, 1911 and Margaret was born in Commonwealth contrary to the provisions May, 1913. The Walburns did not get of this section shall, upon conviction of such along very well together, owing to the husperson or his acknowledgment of guilt, be band's suspicions of his wife's infidelity and immediately destroyed by any officer of the he left her in September, 1912. She proseState whose duty it is to protect the game cuted him for non-support in 1914, and, at and wild birds of this Commonwealth; and the May Sessions of that year, we directed it shall be the right of any citizen of the him to pay to his wife the sum of Eight Commonwealth to kill a ferret when found Dollars per month, intended to be for the at large and beyond the control of its support of the child. In June, 1914, the owner.

defendant began proceedings in divorce on It seems very clear to us that the pro- the ground of his wife's adultery and obtanivision as to ferrets, the breeding of ferrets, ed a decree of divorce in October, 1914. or having ferrets in one's possession, is The divorced wife marrieá again about five strictly and closely germane to the subjeet weeks ago and her child, Margaret, has matter of the act as expressed in the title. been living with its grand-mother, the proseAn act for the better protection and preser- cutrix, ever since. The defendant does not vation of game would be incomplete with want to support the child, because he claims out some provision relating to ferrets. Every he is not its father and also because its hunter knows this. And everybody know- mother has married again and has had coning anything about wild game, or interested trol and custody of the child from the date in the wild life of field and forest, would of its birth. reasonably expect to find such a provision

A child having been begotten and born in in such an act of assembly.

lawful wedlock is presumed to be legitimate The appeal is dismissed.

and no sufficient evidence to overcome that presumption was made to appear in this

The statutory law of this state makes Q. S. of

Schuylkill Co.it obligatory upen parents to support their Com. v. Walburn.

minor children and it also provides the

means of compelling á husband and father Divorce--Suofort of Children.

to support his wife and minor children.

Primarily, the duty of supporting, mainThe duty of supporting, maintaining and edu- taining and educating children rests upon cating children rests upon the father and during the father; and, during the lifetime of the the lifetime of the father the mother is not bound to support the children.

father, the mother is not bound to support The husband remains liable for the support of the children; 29 Cyc. 1606; Henkel's Eshis minor children where he and his wife volun- tate, 13 Superior Court 337-343. tarily separate and he consents that the children i live with the mother or where the wife leaves

A husband remains liable for the support him on good cause. But, it is otherwise where of his minor children where he and his wife the wife leaves without sause taking the children voluntarily separate and he consents to the with her. When the father and mother are divorced and

children living with the mother, or where the mother marries taking with her her children the wife leaves him for good cause. But it by her divorced husband, the stepfather is entitled is otherwise where the wife leaves without

case.

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