Martin's Estate. Brothers and Sisters. "to my brothers and sisters, or their heirs, in equal Testator bequeathed the residue of his estate shares, the child or children of any deceased brother or sister to take by representation of his, her, or their parents." The auditor distributed the fund to the surviving brother and sisters and to the children of a deceased brother and sister. HELD, that exceptions filed to his report must be dismissed. of the parties does not rebut the presumption, except in the case of parent and child; Will-Construction--Children of Deceased Gerz's Exrx. v. Demarra's Exrs., supra. Or where a condition of family relationship is shown to have existed; Shuhart's Estate, 154 Pa. 230; Evans' Estate, 60 Pa. Supr. Ct. 83. As to a family relationship, the burden of showing it was upon the decedent's estate; Casky v. Cineavy, 60 Pa. Supr. Ct. 87. What is meant by family relationship as distinguished from family kinship is such a living together in a common abode, as that the services might reasonably be expected by the recipient to be rendered gratuituously, and might likewise be considered by the giver to be given without the expectation of compensation. This is not the case of a domestic servant, where wages are presumed to have been paid as they are earned in accordance with the rule announced in McConnell's Appeal, 97 Pa. 31. The claimant was a sister of the decedent, and her services were those of a nurse. Such person is not a domestic servant; Ranninger's Appeal, 118 Pa. 20; Lewis' Estate, 156 Pa. 337; Davies' Estate, 60 Pa. Supr. Ct. 360. The pivotal question therefore is, were these services gratuitous. The pertinent facts from which this question must be solved are these. Those in her favor are, she rendered the services to an invalid brother who received them. The decedent said he wanted her to have something. The auditor who heard the witnesses has approved her claim. The facts against her are, she was an inmate of the decedent's abode, without charge, having made her home with him for several years. She was not paid for any of her services. She made no demand for compensation at the end of her periods of service. She made no demand of the decedent in his lifetime. The evidence to support such claim should be clear, distinct and convincing; Winnings v. Hearst, 17 Pa. Supr. Ct. 314; Coulston's Estate, 161 Pa. 161. The contention that the testator meant to give his estate only to the child or children of such brother or those sisters who were living at the time he executed his will cannot be sustained. A study of the whole will and the language used by the testator impels the conclusion that the testator did not intend to exclude the children of any of his deceased brothers or sisters from the share which their deceased parent would have been entitled to had they survived him. Exceptions to Auditor's report. R. P. Sherwood for exceptions. November 5th, 1917. Ross, J.-In his will the decedent provided inter alia as follows: "And after the payment of all collateral inheritance taxes upon all moneys hereinbefore given and bequeathed to any person, or for any purpose whatsoever, I direct each of said trust companies to pay the balance of the moneys belonging to my estate which shall then be in their hands, and which I intend shall be the whole of my estate not hereinbefore especially bequeathed, to my brothers and sisters, or their heirs, in equal shares, the child or children of any deceased brother or sister to take by representation of his, her, or their parents." The will was executed January 12th, 1912. The testator died December 31st, 1913. At the time of his death there survived him, Ida Livingston, Kate Peters and Sarah A. Martin, sisters, and Samuel H. S. Martin, a brother. One of the decedent's sisters, Malinda Miller, died in 1904, leaving to survive het, two children who are still living, namely, Martin M. Miller and Leah Catharine Miller; and one brother, David Martin, died January 2nd, 1910, leaving to survive The conclusion is irresistible that when the claimant, making her home with her brother, without charge, performed the kindly offices for her invalid brother, which constitute the services for which the claim him six children, who are still living, is now made, she did so without expectation of compensation, and that while the decedent thought that neverless she ought to be compensated he did not think so to the extent of carrying such thought into execution. We therefore sustain the exception. namely, Beatrite Snyder (nee Martin), The exceptions are dismissed and the report of the Auditor is hereby confirmed. Before the auditor the three surviving O. C. of sisters and the one surviving brother claimed all the residuary estate, contending through their attorney, that they, and they only, were entitled thereto, in exclusion of the "child or children of any of the deceased brother or sister of the decedent." The auditor found that, "the testator clearly intended that the residue of his estate should be paid to the same persons who would have inherited it had he died intestate, leaving no widow, issue or parent, that is, to the surviving brothers and sisters and the children of any brothers and sisters who had predeceased him, the latter to take their deceased parents' share," and he accordingly awarded the balance on the account, after deducting the costs of audit. The ruling of the auditor is the subject of the exceptions on the part of the surviving brother and sisters of the deceased. They now contend that the testator intended by his will to give all the residue of his estate to the brothers and sisters who survive him, and none of it to the children of any of his deceased brothers and sisters. The able attorney who argues to sustain the exceptions says that the direction in the will that, "the child or children of any deceased brother or sister to take by representation of his, her or their parents," must be construed that the testator meant, "only the child or children of that brother or those sisters who were living at the time he executed his will." We cannot agree with the counsel in that interpretation. A more reasonable, just and equitable interpretation was rendered by the auditor. Hunkley's Estate. Allegheny Co. Descent and Distribution-Husband's Life Where a married woman devised her real estate to her husband for life with remainder to charitable uses, and died without issue or known band took a fee simple estate and on his death it kindred, and the charitable uses failed, the husdescended to his heirs. Section 12 of the Act of April 8, 1833, P. L. 313, prevented its escheat to the Commonwealth. Exception to accountant's report. Clarence Burleigh, Jr., and Diamond & July 7, 1917. MILLER, J.-The question is the right of a husband's heirs, he being devised a life estate, to take land in fee in the absence of heirs or known kindred of the wife. The decedent died January 28, 1914, testate. By her will she devised to her husband her real estate for life, "and after his death to be sold by my executors hereinafter named, and the proceeds of such sale to be equally divided between the St. Paul's Orphan Asylum at Crafton and the German Roman Catholic Orphan Asylum of Allegheny County," with power after the husband's death in the executor to sell for the purpose named; and also with direction, should a reasonable offer for said real estate be received during the lifetime of her husband, that the executor should sell, in which case the husband should receive one-half of the purchase price in lieu of his life estate, the other half to be divided as directed by the previous portion of the will. The husband, Frank Hunkley, died April 7, 1916. The real estate had not been sold during his life; after his death, the executor sold the same, filed his account thereof, and the balance for distribution is the proceeds of said sale. The language used in the opinion rendered by the Supreme Court in the case of Sorver v. Berndt, 10 Pa. 214 (cited by the auditor) is applicable here, "It is doing no violence to the will to construe 'or' as 'and,' and it was doubtless used in that sense by the testator." The analysis by the auditor of the language used in the will is entirely reasonable and his conclusions do not violate any of the established rules for the construction of wills. A study of the whole will and the lan- The decedent died within a day or two guage used by the testator 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 deceased 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 entitled to had they survived him. The logic of the Auditor's report fully demonstrates this conclusion. At the audit of her husband's estate his heirs or kindred were fully set forth and their names are offered as distributees in this 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 testatrix within thirty days, as provided by Section 11 of the Act of 1855, P. L. 332. As she made no provision for her residuary estate and as the charitable institutions named cannot take, she died intestate as to this real estate and the parties entitled thereto must be ascertained under the intestate law, and, if there be none, the fund must escheat to the Commonwealth. Exceptions to auditor's report in the estate of Mattie H. King. Robinson, Marsh & Kauffman for exceptions. W. C. Alexander, contra. May 9, 1917. BROOMALL, J.-The only question which is pressed to the attention of the court is whether the construction which the auditor gives to the sixth clause of the will of the decedent is correct. Section 10 of the Act of April 8, 1833, provides: "In default of known heirs or kindred competent as aforesaid, the real estate of such intestate shall be vested in his 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 remainder in the banks to my brother, Robert Palmer Metz." It will be observed that Section 12 prevents the escheat of an estate, if there was a 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 decided that where one died seized of land, ance & Trust Company and the First Penny fifty dollars in the Real Estate Title Insurintestate, without issue or known collateral Savings Bank. The exceptant contends 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 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 representative. Therefore, it may be decreed to his kindred as shown in the audit of his estate, directly. O. C. of In this sixth clause the testatrix starts off legacies amounting to seven hundred and fifty dollars. This leaves a remainder. There is no other remainder suggested than the remainder in the three banks after deducting seven hundred and fifty dollars. Delaware Co. This is the remainder which she bequeaths in the same clause in the words, "and the remainder in the banks to my brother, King's Estate. Testatrix bequeathed by one clause in her will specific portions of sums deposited in three banks which she named, to a sister and a nephew, and in the same clause willed, "and the remainder in the banks to my brother." She had funds deposited in two other banks. HELD, that the brother took only the balance in the three banks specifically named in that clause. We therefore enter the following decree: It is ordered, adjudged and decreed that the exceptions to the auditor's report be dismissed; that the auditor's report be confirmed; and that distribution be made in accordance therewith. Constitutional Law-Title of Acts - Expressing Subject in Title-Possession of Ferret-Act 1915, P. L. 146. Section 9 of Act April 21, 1915, P. L. 146, prohibiting the breeding or selling of ferrets, or having such animals in possession, except by license from the State Board of Game Commissioners, and providing penalties for the violation thereof, is strictly and closely germane to the subject matter of the act as expressed in the title, and is therefore not in violation of Section 3, Article 3, of the constitution. Appeal from sumtuary conviction. that the title should be a complete digest of the contents of the act. It is sufficient if it fairly and clearly gives notice of the subject matter so as reasonably to lead to an inquiry into the body of the act. There are several other states that have, in substance, the same restriction that Pennsylvania has as to the titles of acts of assembly. We notice the simple language used in the constitution of New Jersey: "To avoid improper influences which may result from intermixing in one and the same act such things as have no proper relation to each other, every law shall embrace but one object, and that shall be expressed in the title." The Iowa constitution requires that "every law shall embrace but one object, which shall be expressed in its title." The provision in the Maryland constitution is that "every law enacted by the legislature shall embrace but one subject, and that shall be described in the title." We refer to these constitutional clauses from the states named because the courts of these states, in several decisions, emphasize the inquiries: Does the title embrace one sub And are the provisions of the statute, in its several sections, incidental and germane to the subject and upon matters properly connected therewith? Taylor & Lewis, for Defendant. EDWARDS, P. J., July 2, 1917.-Defend-ject only? Is that subject clearly expressed? ant was convicted before an alderman of the city of Scranton on a charge of "having in his possession a ferret without first having obtained a license from the Board of Game Commissioners of the Commonwealth." There are no facts in dispute. It is admitted on behalf of defendant that he was in possession of such an animal and that he had no such license. The title of the act now under consideration is as follows: "An Act for the better protection and preservation of game, game quadrupeds and game birds in Pennsylvania, and prescribing penalties for violations of its several provisions.". The act contains twelve sections and is comprehensive in its scope. It prohibits hunting on Sunday; it prescribes the open season for wild turkey, grouse, pheasant, quail, raccoon, bear, deer, etc., etc.; it provides that certain sales of game are unlawful, that no one can hunt for wages or hire, that game shall not be shipped by parcel post, express, freight, etc., except under certain conditions, and it has several other provisions properly relating to the subject matter expressed in the title. It is the ninth section of the act that defendant claims is unconstitutional. This section reads as follows: The only defense suggested is that section nine, of the Act of April 21, 1915, P. L. 146, passed for the better protection and preservation of game, etc., is unconstitutional because the title gives no notice that being in possession of a ferret is unlawful. There is no question about the law applicable in such a case. The title of a bill, being intended to give notice of the proposed legislation, must express the purport of the Act with sufficient definiteness to notify those who may be affected by the Act of its real purpose. Where the title imports one subject, while the bill itself shows a different subject to be its purpose, the title is misleading, and the Act is unconstitutional; 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 children. When a child is deserted by both parents the primary responsibility for its support rests on the father. M. H. Spicker for Commonwealth. September, 1917. KOCH, J.-The prosecution in this case is based upon the infor 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 issued by the Board of Game Commissioners, upon application made by any person, and the payment of twenty-five dollars upon the part of a dealer of or dealer in ferrets, and one dollar upon the part of such person as may desire to own a ferret without breeding same. Each and any person violating any provision of this section shall, upon conviction, be liable to a penalty of twenty-mation of Mary Miller, the grandmother of five dollars for each ferret bred for sale, sold, or in any manner offered for sale or had in possession, contrary to the provisions of this section. Each and every ferret found in possession of any person in this Commonwealth contrary to the provisions of this section shall, upon conviction of such person or his acknowledgment of guilt, be immediately destroyed by any officer of the State whose duty it is to protect the game 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 Commonwealth to kill a ferret when found at large and beyond the control of its owner." Margaret Walburn, aged four years, a minor child of the defendant. The child's mother is a daughter of said Mary Miller. Mr. and Mrs. Walburn were married in December, 1911 and Margaret was born in May, 1913. The Walburns did not get along very well together, owing to the husband's suspicions of his wife's infidelity and he left her in September, 1912. She prosecuted him for non-support in 1914, and, at him to pay to his wife the sum of Eight Dollars per month, intended to be for the support of the child. In June, 1914, the defendant began proceedings in divorce on It seems very clear to us that the pro- the ground of his wife's adultery and obtamvision 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 married 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 in such an act of assembly. The appeal is dismissed. Q. S. of A child having been begotten and born in lawful wedlock is presumed to be legitimate and no sufficient evidence to overcome that presumption was made to appear in this case. The statutory law of this state makes Schuylkill Co. it obligatory upen parents to support their minor children and it also provides the means of compelling a husband and father to support his wife and minor children. Primarily, the duty of supporting, maintaining and educating children rests upon the father; and, during the lifetime of the father, the mother is not bound to support the children; 29 Cyc. 1606; Henkel's Estate, 13 Superior Court 337-343. Com. v. Walburn. Divorce-Support of Children. The duty of supporting, maintaining and educating children rests upon the father and during the lifetime of the father the mother is not bound to support the children. The husband remains liable for the support of his minor children where he and his wife voluntarily separate and he consents that the children live with the mother or where the wife leaves him on good cause. But, it is otherwise where the wife leaves without sause taking the children A husband remains liable for the support of his minor children where he and his wife voluntarily separate and he consents to the children living with the mother, or where When the father and mother are divorced and 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 with her. |