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THURSDAY, MARCH 28, 1918, No 46

Q. S. of

Schuylkill Co. etc. ; Section 2620 School Code. Presuma

Com. v. Walburn. bly, they met at the time stated and it was the duty of the appellant to know this fact Desertion and Non-Support-Support of and to govern himself accordingly.

Minor Child - Divorci -- Stepfather In an affidavit, purporting to have been

Liability of Father, made by the appellant un October 15th, 1917, and marked filed October 14th, 1917; his minor children where he and his wife volon

A hasband remains liable for the support of he avers, “2. That the deponent furnished tarily separate and he consents to the children a bond to said school district of the Borough living with the mother, or where the wife leaves of Tamaqua, in the sum of $40,000, condi- him for good cause. But it is otherwise where tioned that he 'shall well and truly collect the wife leaves without cause, taking the children

with her. and pay over or account for, according to

The assumed relation of father by a stepfather law, the whole amount of taxes charged entitled him, on the one hand, to the services of and assessed in the duplicate which shall be his stepchildren and entitles them, on the other, delivered to him, and, "11. That ihe de to their support and education without remunerapogent has paid the school district treasurer tion to support 'a stepchild after the death of the

tion. But a stepfather is under no legal obligain taxes collected by himself, the said George mother. M. Krell, the sureries upon his bond and in A grandparent mny maintain a prosecution for commissions and exonerations, the total sum the support of a grandebild against its father, of $10,090,00 which is in full satisfaction of where the father had obtained a divorce from its his bond of $40,000.00."

In view of the second paragraph just Non-support. quoted, it surpasses our understanding why

M1. H. Spicker for plaintiff. the eleventh paragraph, as quoted, should appear in the affidavit. If the amount of the Roscoe R. Koch for defendant. bond is $40,000.00 and the condition thereof

September 22, 1917: Koch; J.---The is that Sitler shall "co!lect and pay over and prosecution in this case is based upon the inaccount for

the whole amount formation of Mary Miller, the grandmother of taxes charged and assessed in the dupli- of Margaret Walburn, aged four years, a cate'' which amount is $49,8 36.75, I cannot minor child of the defendant. The child's understand the mental actitude of one who mother is a daughter of said Mary Miller. will swear that the condition is met, when Mr. and Mrs. Walburn were married in $9,554.36 less than the whole amount is not December, igu, and Margaret was born in paid over or accounted for.

May, 1913. The Walburns did not get Sitler has been allowed full opportunity to along very well together, owing to the husenable us to do full justice to him in the prem- band's suspicions of his wife's infidelity and ists but he has failed to help us, and the he left her in September, 1912. school district badly needs all the money cuted him for non-support in 1914, and at that is due to it and is entitled to judgment, the May Sessions of that year, we directed

Judgınent is entered for the sum of him to pay to his wife the sum of eight $9554.36 in favor of the school district of dollars per month, intended to be for the the Borou h of Tamaqua and against Clin- support of the child. In June, 1914, the ton E. Sıtler, the appellant.

defendant begao 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 wite married again about five for removing, concealing, secreting and dis weeks ago, and her child, Margaret, has posing of goods of the defendant with intent been living with its grandmother, the proseio pievent hem from being levied when cutrix, ever since. The defendant does not unde 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.

She prose

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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

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 In Fitler v. Fitler, 33 Pa. 50, the wife of the children; 29 Cyc. 1606; Henkel's Estate, Fitler deserted him and took her child with 13 Superior Court 337-343.

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 that the wife was, under the circumstaaces, cause, taking the children with her; 29 not entitled to recover. The court said, Cyc. 1607.

“While she keeps it, on such grounds, she In this case, the child is rather unfort- has no claim for compensation.” When the unate, for it virtually now stands deserted divorce was granted no order was made reby both of its parents, and we cannot com- specting the custody of the child. pel its stepfather to support it. Had the In the case before us, the child appearing stepfather admitted Margaret to his home to be deserted by both its parents, I have no when he married her mother, he might be doube that the primary responsibility for its responsible for her maintenance and support. support, under such circumstances, now rests Chancellor Kent says in the Second Volume on the father. 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 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.

No. 2. 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

ment--Indictment. child went to reside in the family of her stepfather, until she herself married. By Petitioners asked for an attachment against the this arrangement, the defendant stood in township supervisors for failure to open a public

road according to the width set forth in the loco parentis, and was responsible for the viewers' report and fixed by the court. HELD, maintenance and education of the child so that an attachment will not lie. long as she continued to reside with him; 2 Neither the general road laws nor the York Kent. Com. 192; Stone v. Carr, 3. Esp. its supplements, give any express statutory au

County Act of February 17, 1860, P. L. 61, with Cas. 1; Cooper v. Martin, 4 East 26."

thority for the issuing of an attachment to enforce The assumed relation of father by a step- obedience to the order of the court, in road cases. father entitles him, on the one hand, to the The supervisors, as such, are required to open

a road as soon services of his stepchildren and entitles them, the court, and the; have no discretion in the

as practicable after the order of on the other, to their support and education without remuneration; Duffy v. Duffy, 44 A delay of about fifteen months makes a clear A stepfather cannot recover for case for ihe exercise of the court's authority for

the enforcement of the order. maintaining his stepchild unless he can prove a contract with the guardian; Ruckman's perform their duty is the proper remedy.

An indictment of the supervisors for failure to

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ille for th

Pa. 402.

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

practicable, after they are ordered to do so

by the Court, and they have no discretion K. W. Altland for petition.

wha:ever to exercise in the matter. Jas. G. Giessner, contra.

In this case about fifteen months have

elapsed, including the whole summer season
February 25, 1918. WANNER, P. J.-Jof 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, upon this road.
Pennsylvania, praying the court to issue an

We are clearly of the opinion that it is a attachment against E. J. Knaub, H. E. Bene case which calls for the exercise of the dick and Frank D. Shaeffer, Supervisors of Court's authority, for the enforcement of this said Township, to compel them to open to order in the interest of the public. There a width of 25 feet, a certain road in said have been too many cases of official neglect township described in Road Report No. 4, in the past by supervisors in this County to April Sessions, 1916. Said report was filed justify any further acceptance of ordinary September ist, 1916, and the width of the

excuses for the same. road fixed at 25 feet by the Court of Quarter

The remedy by attachment, however is Sessions of York County, which issued its one of doubtful authority. order to said supervisors November 6th,

The lower courts have generally held that 1916, for the widening of said road.

the remedy for wilful neglect of duty on The testimony shows that while the super- the part of the supervisors is by indictment, visors have done some work at different and not by attachment. We have found no points along this road, it has not been opened case in which the appellate courts have ruled up to the required width, although they have directly upon the question whether or not been repeatedly requested to do so, by the attachinent would lie. petitioners and other citizens of the Town

In Roaring Brook Township Road, 140 ship.

Pa. 632, the Supreme Court sustained the It also appears that on one occasion when proceedings in the court below on other certain of the petitioners met the three super. grounds where an attachment had been visors of the Township at work on this issued to compel the opening of a road, but road, and called their attention to the fact in doing so, called attention to the fact that that is was not being properly opened to the no question had been raised before it as to with required by the order of the Court, the power of the Court of Quarter Sessions that they were met with a profane detiance to issue the attachment, and stated that the of the Court and themselves by Frank S. Court was, therefore, deciding only what Sheaffer, one of said supervisors, and the de

was before it. The inference that may be claration that the road would be opened to fairly drawn from this is, that the Supreme suit himself. This was followed soon after- Court desired to avoid an apparent affirm. ward by a stoppage of the work.

ance of the attachment, as a proper process The evidence on the part of the supervi-l in that case. sors does not disclose any earnest, substantial It will be observed that neither the genand continued effort on their part to fully eral road laws of the Commonwealth, nor comply with the orders of the Court, nor the York County Road and Bridge Act of does it show that it is impossible or impracti- February 17, 1860, P. L. 61, with its supcable to do so, if the proper means is taken plements, give any express statutory authorto accomplish that end.

ity for the issuing of an attachment to This is apparently a case in which the enforce obedience to the orders of the Court, supervisors are disinclined to do their duty in road cases. 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 presented here, show sufficient for a review of the question whether or not grounds upon which to order an indictment the road should be widener, if there is ob- sent up against the supervisors of this jection thereto by citizens of the township. i 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.



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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 It is ordered that unless the supervisors subject to the tax, and to accomplish its of East Manchester Township shall, on or

collection has included it in the prescribed before the first day of the Court of Quarter appraisement, and from which this appeal Sessions of the Peace of York County to be

has been taken. held at York, on the 15th day of April,

Exemption acts have been conceived in a 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 creates an independent bounty, and is of no District Attorney of York County, charging

kin to one of distribution ; Compher v. Comthe respondents in this case, as supervisors pher, 25 Pa. 31; Nevin's Appeal, 47 Pa. of said township, with culpable negligence 230; King's Appeal, 84 Pa. 345; Gilbert's and wilful non-compliance with the order Estate, 227 Pa. 648; Buckland's Estate, 239 of the Court of November 6th, 1916, to

Pa. 608. widen the road described in Road Report

The Commonwealth can not prevail be-
No. 4, of April Session, 1916.

cause 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 O. C. of

Lancaster Co. "preferred claim," and, therefore, must first.

be met. It is a “gift of the law prompted Hildebrand's Estate.

by considerations of public policy;" Beeteni

& Co. v. Getz, 5 Sup. Ct. 71; Peeble's Widow's Appraise ment-Inheritance Tax.- Estate, supra. Acts of June 7, 1917, and July 11, 1917. An estate that passes 'either by will or

under the intestate laws" is subject to the A widow's $500 exemption claimed under Sec-tax, but a widow's exemption is not such an tion 12 of the Fiduciaries Act of June 7, 1917, P. L. 471, is not subject to inheritance tax under the estate. It does not come by either of these Act of July 11, 1917, P. L. 832.

ways. It is neither a legacy or devise, nor Such exemption does not pass “either by will or an inheritance. Subject to a purchase money under the intestate law.” It is a wife's inchoate lien it is preferred to all claims against an property right in her husband's estate which be

estate. By asserting it the amount of it comes complete when she "retains" it.

ceases to be regarded as part of a decedent's Appeal from appraisement of Widow's estate. Against it a decedent's creditots, Exemption for Inheritance Tax.

legatees, devisees or distributees cannot pre

vail; Peeble's Estate, supra: The action of J. R. Kinzer and 0. S. Schaeffer for ap- a widow properly claiming it distinguishes pellant.

it as her estate, which had been held in M. G. Musser for appellee.

abeyance by her husband during her lisc.

The act says it is something which she may December 27, 1917. Smith, P. J. -- Forretain," 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 1, 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 is a pioneer ? will or under the intestate laws of the Com- a deceased husband; bere bureau, yap monwealth *

subject sustained and the appraisem de fos in to the tax of two ($2) dollars on every ance tax purposes is refrmit 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 Work Legal Record

contention then was overruled, and he was

ordered to file a supplemental affidavit of Vol. XXXI THURSDAY, APRIL 4, 1918. No 47 defence. In the opinion filed in that con

tention, after giving a synopsis of the pleadCOMMON PLEAS

ings, we said that "the main inquiries

are, does the money in question belong to 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 Fraud.

defence. 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. After the death of the testator defendant present

and State of Pennsylvania, deceased, claims ed 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 from the fifth day of March, 1917, upon a the absolute property of the defendant, subject to the condition ihai Jefendant 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

FIRST. "Jerry Walurick, being a resiwant of a sufficient affidavit of defense must be dent of the City of York, in the County of overruled.

York and State of Pennsylvania, and being The plaintiff's statement assuming that, as the the money represented by the certificate of deposit Waltrick in ihe 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 decedent's lifetime as a consideration, proof will will, dated the 20th day of July, A. D. be required by the plaintiff of the matters alleged 1916, duly probated on the 14th day of in the statement.

March, 1917, and recorded in the office of These conficting theories and facts as stated the Register of Wills for the County of by the pleadings, render it impossible for a Judge York in Will Book, Vol. 3 &, No. 6, to decide from the pleadings alone.


334, wherein and whereby the testator apNo. 92, August Term, 1917.

pointed the Plaintiff, Elmer Duke, the DeMotion for judgment for want of suffi- fendanc, Harry A. Hockensmith and one cient affidavit of defense.

i Guy Waltrick, executors thereof. Guy For the opinion of the Court on the affi- Waltrick, by renunciation duly filed in the

For the opinion of the Court on the affi- office of the said Register of Wills, declined davit of defense raising matters of law, see Waltrick's Executor v. Hockensmith, supra

to assume the office and duties of executor

as aforesaid and on the roth day of April, 115. The Court having there directed the filing of the said decedent were duly granted by

letters testamentary upon the estate of a supplemental affidavit of defense, it was duly filed, and this motion for judgment the said Register of Wills to Elmer Duke made by plaintiff.

and Harry A. Hockensmith.

The Plaintiff, Elmer Duke, is a resident of Cochran, Williams & Kain for motion. the Borough of Chambersbury, in the County F. M. Bortner, contra.

of Franklin and State of Pennsylvania. March 25th, 1918. Ross, J.—This case The Defendant, Harry A. Hockensmith, 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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