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Vol. XXXI

THURSDAY, MARCH 28, 1918. No 46 etc.; Section 2620 School Code. Presumably, they met at the time stated and it was the duty of the appellant to know this fact and to govern himself accordingly.

In an affidavit, purporting to have been made by the appellant un October 15th, 1917, and marked filed October 14th, 1917; he avers, "2. That the deponent furnished a bond to said school district of the Borough of Tamaqua, in the sum of $40,000, conditioned that he shall well and truly collect and pay over or account for, according to law, the whole amount of taxes charged and assessed in the duplicate which shall be delivered to him,'" and, "11. That the deponent has paid the school district treasurer in taxes collected by himself, the said George M. Krell, the sureties upon his bond and in commissions and exonerations, the total sum of $40,090,00 which is in full satisfaction of his bond of $40,000.00."

In view of the second paragraph just quoted, it surpasses our understanding why the eleventh paragraph, as quoted, should appear in the affidavit. If the amount of the bond is $40,000.00 and the condition thereof is that Sitler shall "collect and pay over and ! account for the whole amount of taxes charged and assessed in the duplicate" which amount is $49,836.75, I cannot understand the mental actitude of one who will swear that the condition is met, when $9,554.36 less than the whole amount is not paid over or accounted for.

Sitler has been allowed full opportunity to enable us to do full justice to him in the premiscs but he has failed to help us, and the school district badly needs all the money that is due to it and is entitled to judgment. Judgment is entered for the sum of $9554.36 in favor of the school district of the Borou h of Tamaqua and against Clinton E. Sitler, the appellant.

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Desertion and Non-Support-Support of
Minor Child-Divorce-Stepfather-
Liability of Father.

his minor children where he and his wife volun-
tarily separate and he consents to the children
living with the mother, or where the wife leaves
him for good cause. But it is otherwise where
the wife leaves without cause, taking the children

A husband remains liable for the support of

with her.

The assumed relation of father by a stepfather entitled him, on the one hand, to the services of his stepchildren and entitles them, on the other, to their support and education without remuneration to support a stepchild after the death of the tion. But a stepfather is under no legal obligamother.

A grandparent may maintain a prosecution for the support of a grandchild against its father, where the father had obtained a divorce from its

mother.

Non-support.

M. H. Spicker for plaintiff.
Roscoe R. Koch for defendant.

September 22, 1917. KOCH, J.-The prosecution in this case is based upon the information of Mary Miller, the grandmother of 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 along very well together, owing to the husMay, 1913. The Walburns did not get band's suspicions of his wife's infidelity and he left her in September, 1912. She prosecuted him for non-support in 1914, and at the May Sessions of that year, we directed 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 ·Disposal of Goods to Defraud Creditors the ground of his wife's adultery and ob-Sufficiency of Indictment.-An indictment tained a decree of divorce in October, 1914. under the Act of April 22, 1913, P. L. 242, The divorced wife married again about five for removing, concealing, secreting and dis- weeks ago, and her child, Margaret, hast posing of goods of the defendant with intent been living with its grandmother, the proseto prevent them from being levied when cutrix, ever since. The defendant does not under execution and to defraud his credi- want to support the child, because he claims tors, is not defective because it does not he is not its father, and also because its expressly allege that the defendant had any mother has married again and has had concreditors.-Com. v. Somerson et al., (Lan- trol and custody of the child from the date caster Q. S.) 35 Lancaster Law Review 118. of its birth.

A child having been begotten and born in Appeal, 16 Pa. 251. In Douglas' Appeal, lawful wedlock is presumed to be legitimate 82 Pa. 173, Mr. Justice Sharswood said, and no sufficient evidence to overcome that "The opinion of the court in Duffy v. presumption was made to appear in this Duffy, 8 Wright 402, is direct to the point case. The statutory law of this state makes that when a stepfather takes his stepit obligatory upon parents to support their children to reside with him as one of his minor children, and it also provides the family, while the one cannot claim for sermeans of compelling a husband and father vices, the other is precluded from compensato support his wife and minor children. tion for expenditures." But a stepfather is Primarily, the duty of supporting, maintain- under no legal obligation to support a steping and educating children rests upon the child after the death of the mother; Brown's father; and, during the lifetime of the Appeal, 112 Pa. 18. father, the mother is not bound to support the children; 29 Cyc. 1606; Henkel's Estate, 13 Superior Court 337-343.

In Fitler v. Fitler, 33 Pa. 50, the wife of Fitler deserted him and took her child with her. The husband later obtained a divorce A husband remains liable for the support on the ground of desertion and the mother of his minor children where he and his wife brought an action of assumpsit for money voluntarily separate and he consents to the expended in supporting and maintaining the children living with the mother, or where child. The father was able and willing to the wife leaves him for good cause. But it receive and support the child and it was held is otherwise where the wife leaves without cause, taking the children with her; 29 Cyc. 1607.

that the wife was, under the circumstances, not entitled to recover. The court said, "While she keeps it, on such grounds, she has no claim for compensation." When the divorce was granted no order was made respecting the custody of the child.

In the case before us, the child appearing to be deserted by both its parents, I have no doubt that the primary responsibility for its support, under such circumstances, now rests on the father.

In this case, the child is rather unfortunate, for it virtually now stands deserted by both of its parents, and we cannot compel its stepfather to support it. Had the stepfather admitted Margaret to his home when he married her mother, he might be responsible for her maintenance and support. Chancellor Kent says in the Second Volume of his "Commentaries on American Law," The defendant is, therefore, directed to page 192, that, if a stepfather takes his appear in open court to hear and receive wife's children into his own house, he in whatever order the court may then conclude then considered as standing in loco parentis to make in the premises.

and is responsible for the maintenance and support of the child so long as it remains

No. 2.

ment-Indictment.

with him, for by that act, he holds the child Road in East Manchester Township. out to the world as part of his own family. In Lantz v. Frey and Wife, 14 Pa. 201, "The defendant intermarried with the Road Law-Supervisors' Neglect Attachfemale plaintiff's mother, after which the child went to reside in the family of her stepfather, until she herself married. By this arrangement, the defendant stood in loco parentis, and was responsible for the maintenance and education of the child so long as she continued to reside with him; 2 Kent. Com. 192; Stone v. Carr, 3 Esp. Cas. 1; Cooper v. Martin, 4 East 76."

The assumed relation of father by a stepfather entitles him, on the one hand, to the services of his stepchildren and entitles them, on the other, to their support and education without remuneration; Duffy v. Duffy, 44 Pa. 402. A stepfather cannot recover for maintaining his stepchild unless he can prove a contract with the guardian; Ruckman's

township supervisors for failure to open a public Petitioners asked for an attachment against the road according to the width set forth in the viewers' report and fixed by the court. HELD, that an attachment will not lie.

Neither the general road laws nor the York County Act of February 17, 1860, P. L. 61, with

its supplements, give any express statutory au

thority for the issuing of an attachment to enforce obedience to the order of the court, in road cases.

The supervisors, as such, are required to open the court, and they have no discretion in the a road as soon as practicable after the order of

matter.

A delay of about fifteen months makes a clear case for the exercise of the court's authority for

the enforcement of the order.

An indictment of the supervisors for failure to perform their duty is the proper remedy.

Road Report No. 4, April Sessions, 1916. 1836, P. L. 556, to open the road as soon as

Petition for attachment.

K. W. Altland for petition.

Jas. G. Giessner, contra.

practicable, after they are ordered to do so by the Court, and they have no discretion whatever to exercise in the matter.

In this case about fifteen months have

upon

this road.

We are clearly of the opinion that it is a case which calls for the exercise of the Court's authority, for the enforcement of this order in the interest of the public. There have been too many cases of official neglect in the past by supervisors in this County to justify any further acceptance of ordinary

February 25, 1918. WANNER, P. J. elapsed, including the whole summer season February 25, 1918. WANNER, P. J.-of the year 1917, without proper and effective This is the petition of certain citizens of work having been done by the supervisors East Manchester Township, York County, Pennsylvania, praying the court to issue an attachment against E. J. Knaub, H. E. Benedick and Frank D. Shaeffer, Supervisors of said Township, to compel them to open to a width of 25 feet, a certain road in said township described in Road Report No. 4, April Sessions, 1916. Said report was filed September 1st, 1916, and the width of the road fixed at 25 feet by the Court of Quarter Sessions of York County, which issued its order to said supervisors November 6th, 1916, for the widening of said road.

The testimony shows that while the supervisors have done some work at different points along this road, it has not been opened up to the required width, although they have been repeatedly requested to do so, by the petitioners and other citizens of the Township.

It also appears that on one occasion when certain of the petitioners met the three supervisors of the Township at work on this road, and called their attention to the fact that is was not being properly opened to the with required by the order of the Court, that they were met with a profane defiance of the Court and themselves by Frank S. Sheaffer, one of said supervisors, and the declaration that the road would be opened to suit himself. This was followed soon afterward by a stoppage of the work.

The evidence on the part of the supervisors does not disclose any earnest, substantial and continued effort on their part to fully comply with the orders of the Court, nor does it show that it is impossible or impracticable to do so, if the proper means is taken to accomplish that end.

excuses for the same.

The remedy by attachment, however is one of doubtful authority.

The lower courts have generally held that the remedy for wilful neglect of duty on the part of the supervisors is by indictment, and not by attachment. We have found no case in which the appellate courts have ruled directly upon the question whether or not attachment would lie.

In Roaring Brook Township Road, 140 Pa. 632, the Supreme Court sustained the proceedings in the court below on other grounds where an attachment had been issued to compel the opening of a road, but in doing so, called attention to the fact that no question had been raised before it as to the power of the Court of Quarter Sessions to issue the attachment, and stated that the

Court was, therefore, deciding only what was before it. The inference that may be fairly drawn from this is, that the Supreme Court desired to avoid an apparent affirmance of the attachment, as a proper process in that case.

It will be observed that neither the general road laws of the Commonwealth, nor the York County Road and Bridge Act of February 17, 1860, P. L. 61, with its supplements, give any express statutory authority for the issuing of an attachment to enforce obedience to the orders of the Court, in road cases.

This is apparently a case in which the supervisors are disinclined to do their duty because their personal judgment does not We are of the opinion, therefore, that an approve of widening the road. It is needless indictment and not an attachment, is the to say that the law provides remedies for any proper remedy, and that the facts of the illegal action on the part of the viewers, and case as presented here, show sufficient for a review of the question whether or not grounds upon which to order an indictment the road should be widened, if there is ob- sent up against the supervisors of this jection thereto by citizens of the township. Township for culpable neglect of their The supervisors themselves, however, are official duty in not widening this road acrequired by act of assembly of June 13th, cording to the order of the Court; Comth.

v. Reiter, 78 Pa. 161; Phillips v. Comth., Commonwealth of Pennsylvania contends 44 Pa. 197; Edge v. Comth. 7 Pa. 275; that the five hundred dollars exemption reComth. v. Fair, 2 North. 275; Comth. v. served for a widow by Section 12 of the Meany, 8 Pa. Super. Ct. 224.

Fiduciaries Act of 1917 (P. L. 447) is collection has included it in the prescribed subject to the tax, and to accomplish its appraisement, and from which this appeal

has been taken.

It is ordered that unless the supervisors of East Manchester Township shall, on or before the first day of the Court of Quarter Sessions of the Peace of York County to be Exemption acts have been conceived in a held at York, on the 15th day of April, 1918, show to the Court, that they have spirit favorable to widows and have received properly complied with the orders of the an interpretation consistent with their conCourt in Road Report No. 4, of April ception; Lyman v. Byam, 38 Pa. 475;" Sessions, 1916, an indictment shall be sent Peeble's Estate, 157 Pa. 605. Such an act up to the Grand Jury at said Court by the District Attorney of York County, charging the respondents in this case, as supervisors of said township, with culpable negligence and wilful non-compliance with the order of the Court of November 6th, 1916, to widen the road described in Road Report No. 4, of April Session, 1916.

O. C. of

ORPHANS' COURT

creates an independent bounty, and is of no kin to one of distribution; Compher v. ComPher, 25 Pa. 31; Nevin's Appeal, 47 Pa. Estate, 227 Pa. 648; Buckland's Estate, 239 230; King's Appeal, 84 Pa. 345; Gilbert's

Pa. 608.

The Commonwealth can not prevail because the inheritance tax does not authorize its action. It provides that only the "clear value" of a decedent's estate is taxable and the clear value of an estate is only that which remains after all claims against it have been paid. A widow's exemption is a Lancaster Co. "preferred claim," and, therefore, must first be met. It is a "gift of the law prompted by considerations of public policy;" Beetem & Co. v. Getz, 5 Sup. Ct. 71; Peeble's Estate, supra.

Hildebrand's Estate.

Widow's Appraisement Inheritance Tax--
Acts of June 7, 1917, and July 11, 1917.

A widow's $500 exemption claimed under Sec-
tion 12 of the Fiduciaries Act of June 7, 1917, P.
L. 471, is not subject to inheritance tax under the
Act of July 11, 1917, P. L. 832.

Such exemption does not pass "either by will or under the intestate law." It is a wife's inchoate property right in her husband's estate which becomes complete when she "retains" it.

Appeal from appraisement of Widow's Exemption for Inheritance Tax.

An estate that passes "either by will or under the intestate laws" is subject to the tax, but a widow's exemption is not such an estate. It does not come by either of these ways. It is neither a legacy or devise, nor an inheritance. Subject to a purchase money lien it is preferred to all claims against an estate. By asserting it the amount of it ceases to be regarded as part of a decedent's estate. Against it a decedent's creditors, legatees, devisees or distributees cannot prevail; Peeble's Estate, supra. The action of

J. R. Kinzer and O. S. Schaeffer for ap- a widow properly claiming it distinguishes pellant.

M. G. Musser for appellee.

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it as her estate, which had been held in abeyance by her husband during her life. The act says it is something which she may December 27, 1917. SMITH, P. J.-For retain," thus pointedly implying ownership. the imposition and collection of certain in- Such exemption is a wife's inchoate propheritance taxes" an enactment was approved erty right in a husband's estate, which July 11, 1917 (P. L. 832). Concisely, it becomes complete when as his widow she provides that, "All estates pass-sustains her claim for it. It is not subject. ing from any person either by to the tax imposed on the estagupoỡng fi qui will or under the intestate laws of the Com- a deceased husband; therefore al upptak monwealth * *subject sustained and the appraisemedfor inherit to the tax of two ($2) dollars on every ance tax purposes is reformed by striking five hundred dollars of the clear value of such hundred dollars from it. Costs to be paid estate." Because of this enactment the by the Commonwealth...

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the "Practice Act 1915." The defendant's contention then was overruled, and he was ordered to file a supplemental affidavit of No 47 defence. In the opinion filed in that contention, after giving a synopsis of the pleadings, we said that "the main inquiries are, does the money in question belong to

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Waltrick's Executor v. Hockensmith. the estate of the decedent? And did the

defendant wrongfully and unlawfully apNo. 2 propriate it to his own use?" The defendContract-Consideration - Survivorship-ant duly filed his supplemental affidavit of defence.

Fraud.

Plaintiff's decedent deposited six hundred dol- We are now confronted with the plainlar payable to the order of himself or another tiff's motion for judgment for want of a (defendant), and received therefor a certificate sufficient affidavit of defence. The plainof deposit. This certificate contained a proviso tiff's statement is as follows: that the money belongs to the payees jointly, it being understood that either may withdraw on "The plaintiff, Elmer Duke, Executor his or her individual order during their joint of the last will of Jerry Waltrick, late of lives, and that any balance remaining upon the the City of York, in the County of York, death of either shall belong to the survivor and State of Pennsylvania, deceased, claims After the death of the testator defendant presented the certificate to the bank and drew the of the defendant, Harry A. Hockensmith, entire amount, with interest. Plaintiff having the sum of Six Hundred and Ten Dollars brought suit therefor, the affidavit of defense and fifty cents, ($610.50), with interest set forth that the certificate of deposit was to be the absolute property of the defendant, subject to from the fifth day of March, 1917, upon a the condition that defendant would pay decedent's cause of action whereof the following is a funeral expenses, and retain the balance as pay- statement. ment for the support and maintenance of the decedent. HELD, that a motion for judgment for want of a sufficient affidavit of defense must be

overruled.

The plaintiff's statement assuming that, as the money represented by the certificate of deposit

FIRST. "Jerry Waltrick, being a resident of the City of York, in the County of York and State of Pennsylvania, and being the same Waltrick in the certificate of deposit, a copy person designated as "Jere" was not drawn in decedent's lifetime it became part of his estate, the effect of the qualifying whereof is attached to this statement, died clause resulted in a gift contingent on the death in said City of York on the third day of of the donor, and the affidavit of defense setting March, 1917, having first made his last up a contract and a delivery of the money in will, dated the 20th day of July, A. D. 1916, duly probated on the 14th day of March, 1917, and recorded in the office of the Register of Wills for the County of York in Will Book, Vol. 3 &, No. 6, page 334, wherein and whereby the testator appointed the Plaintiff, Elmer Duke, the De

decedent's lifetime as a consideration, proof will be required by the plaintiff of the matters alleged

in the statement.

These conflicting theories and facts as stated by the pleadings, render it impossible for a Judge to decide from the pleadings alone.

No. 92, August Term, 1917.

Motion for judgment for want of suffi- fendant, Harry A. Hockensmith and one cient affidavit of defense.

For the opinion of the Court on the affidavit of defense raising matters of law, see Waltrick's Executor v. Hockensmith, supra 115.

The Court having there directed the filing of a supplemental affidavit of defense, it was duly filed, and this motion for judgment made by plaintiff.

Guy Waltrick, executors thereof. Guy Waltrick, by renunciation duly filed in the office of the said Register of Wills, declined to assume the office and duties of executor as aforesaid and on the 10th day of April, 1917, letters testamentary upon the estate of the said decedent were duly granted by the said Register of Wills to Elmer Duke and Harry A. Hockensmith.

The Plaintiff, Elmer Duke, is a resident of Cochran, Williams & Kain for motion. the Borough of Chambersburg, in the County F. M. Bortner, contra. of Franklin and State of Pennsylvania. The Defendant, Harry A. Hockensmith,

March 25th, 1918. Ross, J.-This case was once before us on the defendant's affi- is a resident of the City of York, in the davit of defence raising a point of law under County of York and State of Pennsylvania.

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