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ORPHANS' COURT

Kathryn Gallagher testifies that the will

was written by her at the request of her O. C. of

Schuylkill Co. mother; the mother dictating the will and

the witness writing as the mother dictated, Egan's Estate

and that the language in the will as set

down were the words of her mother as Issue devisarit vel non-- --Question of Fact- dictated. The will was written between Jury Trial.

eleven and twelve o'clock on the night of

May 20, 1916; that the only persons present The legal sufficiency of a writing alleged to be a will constitutes a question of fact which is suffi- were Kathryn Gallagher, Mary V. Durkin cient to award an issue to be determined by jury. and the testatrix, that the mother was sufPetition for Issue.

tering from a serious illness, and that the

testatrix took the pen in her hand, and unJ. F. W halen, 0. E. Farquhar and D. J. aided made the mark to her will and the Ferguson for Will.

will was then and there signed by the witM. M. Burke, contra.

Mary Egan was about sixty years of age January 21, 1918. Wilhelm, P. J.-at the time the will is alleged to have been Mary Egan died on the 29th' day of executed. The day following the execution May, 1910. Letters of administration were

of the paper she was taken to a hospital and issued upon the application of Thomas C. an operation performed upon her, and her

death followed in about a week. Egan, her son, on the 5th day of June, 1916, by the Register of Wills.

The estate of Mary Egan amounts to

about nine or ten thousand dollars. Thomas On the 14th day of June, 1916, Thomas C. Egan is the chief beneficiary in the will, C. Egan presented to the register a paper which is as follows: purporting to be the last will and testament of Mary Egan, and asked that the letters of

Shenandoah, May 29, 1916. administration issued to him be revoked. MARY EGAN'S LAST WILL The letters of administration were revoked, I Mary Egan being of sound mind give and the alleged will of Mary Egan probated devise and bequeath to my son Thomas C. by the register, and letters testamentary Egan all my stocks, bonds, notes, mortgages issued to Thomas C. Egan.

and other papers of indebtedness together The witnesses to the will were Kathryn with my household furniture and my interGallagher and Mary V. Durkin.

ests in any thing whatever with the underSubsequently an appeal was taken from standing that my son Thomas C. Egan will the action of the register in admitting to provide a home for my daughter Kathryn probate the paper as the last will and testa- Gallagher should she not enter into marriage. ment of Mary Egan. Testimony was taken Thomas C. Egan my son, will pay to my in support and against the appeal, and it daughter, Mary V. Durkin, after my deappears that Mary V. Durkin now alleges cease the sum of Five Hundred Dollars. that her affidavit before the register as to the To my daughter Annie McHale, wife of execution of the will by Mary Egan was Richard A. McHale will be given three untrue. She now asserts that Mary Egan Hundred Dollars provided in the will of did not execute the will in her presence; my beloved husband. that her signature as a witness to the will

her was written on the paper some days after

Mary X Egan Mary Egan was buried; and that the first

mark time she saw the paper was the day upon

Witnesses: which she attached her signature thereto.

Kathryn Gallager, She says that she signed the will as a wit- Mary V. Durkin." ness at the request of Kathryn Gallagher, On the night of the alleged execution fo the other witness, and that a short time the will, Thomas C. Egan, a student at after the will was probated, she had two Georgetown College, returned to Shenantalks with Kathryn Gallagher in which she doah, and was in the home of Mary Egan, expressed her desire to undo the wrong she and in bed at the time the will is said to had committed in signing the paper and in have been executed. Thomas C. Egan, the securing the probate.

principal beneficiary, alleges that he did not

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as to

know that his mother had executed a will and production of the will, are facts which
until after he had secured letters of admin-bear upon the credibility of Kathryn Gal-
istration upon her estate, and the first lagher, notwithstanding her explanation of
knowledge of the will which he had was this circumstance.
after his return from Pottsville in the even- It is unnecessary to discuss all of the tes-
ing of the day letters of administration were timony, because we think we have pointed
issued to him, when he was informed by out sufficient testimony which justifies us in
Kathryn Gallagher that his mother had submitting this case to a jury. And it a
made a will and was directed to the place jury should find a verdict against the will,
containing the will.

the court would not feel constrained, under
If Mary V. Durken was not corroborated the testimony, to set aside that verdict.
in her story, it is possible that it would be The contestant's evidence alone seems to
the duty of the court to refuse to grant an make this a case for a jury. The propon-
issue because it might be a dangerous prac-ent's evidence does not meet, answer and
tice to strike down a will when a subscribing overthrow the contestant's casc so
witness attempts to nullify it by declaring leave a one-sided issue.
that her testimony before the register was Considering the whole evidence, we can-
untrue. But in this case the self-discredited not say that a jury would not be justified in
witness is corroborated by the testimony of finding a verdict against the will. There
other witnesses, one of whom, Annie Mc- are questions of fact here to be decided, and
Hale, states that she was in the home and that is clearly within the province of a jury,
room of her mother at the time that Kathryn therefore, an issue should be awarded.
Gallagher says the will was dictated, reduced The legal sufficiency of the writing is in
to writing and executed; and who positively dispute, and the testimony against the execu-
states that Mary Egan, her mother, did not tion of the will is sufficient to carry it to the
make a will during this night.

proper tribunal, and the function lies in the The testimony of Annic McHale is cor- hands of a jury. roborated by her husband, Richard A.

An issue devisavit vel non is granted, and McHale, who says that Annie McHale was counsel is ordered to prepare a paper in the at the house of Mary Egan at the time she nature of a precept for an issue to the Court describes and that he called at the house of of Common Pleas for trial of the fact Mary Egan at twelve o'clock for the pur-whether or not the paper probated as the pose of accompanying his wife to their last will and testament of Mary Egan was home.

executed by the said Mary Egan.
William J. Durkin, another witness,

,
says he was at the house of Mary Egan on
this night, having called there about eleven OYER AND TERMINER
o'clock, and remained there about fifteen
minutes and he saw Annie McHale in the
room of Mary Egan during the time of his O. & T. of

Allegheny Co. call.

Com. v. Ramsey.
Mary V. Durkin is further corroborated
by the appearance of the will itself. An

Rape--Information-Indictment- l'ariance examination of the paper may well raise a

as to Crime and Name, doubt as to whether the name of Mary V. Durkin was appended to the will at the time Motions to quash the indictment and in arrest it was written, because the name of Mary of judgment were refused where it was alleged V. Durkin appears to have been written crime of rape, while the indictment founded upon

that the information charged the common law with a different kind of ink from that used it charged the statutory crime of rape, and the in the body of the will, the name of Mary information charged Albert Ramsey, while the Egan appended thereto, and the name of indictment charged Berdett Ramsey, in that de

fendant was indicted and tried for the offense Kathryn Gallagher, the other witness.

actually committed, and the only place where the This peculiarity in the will as well as the name Albert really appeared was upon the enfact that the existence of the will was not dorsement which was no e sential part of the known by Thomas C. Egan for sixteen record, the name Albert in the indictment proper days after its alleged execution, although he having been scratched out and Berdett substituted

presumably before the administration of the oath. was an inmate of the house of Mary Egan

The fact that in an information charging the during all of the time between its execution defendant with the crime of rape, the additional

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and mistaken allegations of force and that the the less make it the crime of rape-statutory
carnal knowledge was against the will of the
13-vear-old giri did not any the less Inake it the rape—and the particular kind of rape com-
crime of statutory rape. The particular kind of mitted by defendant would necessarily
rape committed by defendant would necessarily depend upon the proof adduced.
depend upon the proof adduced.

In Commonwealth v. Dingman, 26 Supr.
Motion for arrest of judgment.

Ct., at p. 619, the question of the insufficiR. H. Jackson, District Attorney, for ency of the information to support the inCommonwealth.

Appellate Court, Porter, J., thus states the Edward G. Coll for defendant.

principle: “The only question to be de November 14, 1917. Reid, J.-Defend- termined is whether the written accusation ant was convicted of statutory rape upon

sufficiently informed the defendthe person of Pearl Adair, at the time of ant that he might be put on trial for the the trial aged about 13 years--and, accord crime charged in the indictment. It is not ing to the evidence, between 1 and 12 years

necessary that an information shall charge of age when defendant first began his crim- the crime with the same detail and technical inal relations with the girl.

accuracy required in an indictment; if the

essential elements of the offense be set forth Before going to trial defendant moved to quash the indictment on two grounds:

in terms of common parlance, the informa

tion will be held sufficient.” (1) That the information charged the

The remaining ground is of no greater common-law crime of rape, while the in-merit. An examination of the caption of dictment found upon it charges the statutory the information shows that the defendant crime of rape.

as Berdett Ramsey was charged with the (2) That the information charges Al- offense—the name "Berdeti" having been bert Ramsey, while the indictment charges written by the magistrate over the name Berdett Ramsey.

“Albert” presumably before the administraThis motion was refused and defendant, tion of the oath. The transcript of the under the name of Berdett Ramsey, pleaded magistrate's docket shows that the defendand went to trial.

ant's name was properly entered as Berdett If defendant were indicted for a mure

Ramsey, without any erasure or change, and serious grade of offense than that charged in the recognizance of prosecutor, appended, the information, he might well complain, shows the same name, as does also the entry but he was indicted and tried for the offense following the caption, "names, residences actually committed-statutory rape.

and occupation of the defendant, bail and

witnesses." The inexperience of the magistrate, who mistakenly charged common-law rape, and Ramsey really appears is upon the endorse

The only place in which the name Albert the lack of knowledge of the father who made the information, thus embodying some which is no essential part of the record,

ment of the document. This endorsement, erroneous statements, should not be per evidently misled the counsel for defendant

. mitted to prevent judgment against a de

The defendant, as Berdett Ramsey, was fendant properly indicted upon the facts.

identified by the witnesses, including Pearl Especially is this true where, as here, the Adair, as the person charged with the transcript of the magistrate shows that in offense. He, as Berdett Ramsey, went upon the presence of the defendant, the witnesses the stand and identified himself as living at for the Commonwealth, including the child Adair's, knowing and associating with Pearl in question, were sworn, and their evidence Adair, giving her gifts, accompanying her to necessarily disclosed the details of the actual theaters and nickelodeons, as alleged by the charge against the defendant, as being stat- prosecutor. There was no question at the utory and not common-law rape.

trial about identity, and, as already stated, The information charged the defendant the information being really against Berdett with the crime of rape committed upon the Ramsey, there is no occasion for further body of Pearl Adair, and charges the feloni- discussion. ous carnal knowledge of the body of the The motion for arrest of judgment is child. The additional and mistaken allega- refused and the defendant is directed to tions of force, and that such knowledge was appear for sentence at such time as the against the will of Pearl Adair, did not any | District Attorney shall require.

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The Syllabi are numbered consecutively. The black face figures refer to these syllabi.

ACCEPTANCE,

1893, June 10, P. L. 415.

273
NON, OJ Goods 55-56.

1899, April 28, P. L. 157,..

69a
OF OFFER, 50-52.

1901, June 4, P. L. 431, Sec. 10,.

172
1901, June 4, P. L. 364,.

179-302
ACCORD AND SATISFACTION, 146.

1901, June 4, P. L. 364,.

179, 302
1. To a statement filed by the liquidator of a de 1901, June 4, P. L. 404, Sec. 33,.

14
runct live stock insurance company, averring indebt- 1901, June 4, P. L. 364, Sec. 11,

187
edness by reason of assessments on policy holders for

.87, 178, 302
unpaid losses and expenses, defendant filed an affi- | 1901, June 4, P. L. 364,.

149-151
davit of defense averring agreement on the part of 1901, July 2, P. L. 608..
the plaintiff to accept $111.78 in full satisfaction of 1903, March 19, P. L. 42,

179
all claims and the payment of the same by check. 1903, March 19, P. L. 42,

302
Held, to be a sufficient defense.--O'Neil v. Hein-

1903, April 16, P. L. 212,.

273
inger 62.

1905, April 20, P. L. 239,

147
ACTS OF ASSEMBLY.

1907, May 28, P. L. 262,.

30
1794, April 2, 3 Smith's L. 177,.
.299 1909, April 20, P. L. 239,

147
1814, March 22, 6 Smith's L., 182.
.1501911, May 18, P. L. 309.

292
1833, April 8, P. L. 313, Sec. 12,
84 1911, June 9, P. L. 756,.

.337
1834, February 24, P. L. 75,....
69 1913, May 9, P. L. 192,.

164-167
1834, April 15, P. L. 556, Sec. 104,.
191913, July 26, P. L. 1374,.

49
1843, April 14, P. L. 333, Sec. 71,

.17 1913, June 26, P. L. 1408, Sec. 29,. 26-27
1859, April 6, P. L., 387.
.110 1913, June 27, P. L. 582.

175-178
1860. February 17, P. L. 61,.
.276 | 1915, April 9, P. L. 80, Sec. 60.

18
1860, March 31, P. L. 382,.
.28 -29 1915, April 21, P. L. 146, Sec. 9,.

117
1863, July 18, P. L. (1864) 1102,
59 1915, May 14, P. L. 312,.

.31-32
1864, April 27, P. L. 641..
222 1915, May 13, P. L. 286,.

.333-335
1874, April 22, P. L. 108, .

58 1915, May 14, P. L. 483, (Practice Act) 9, 227,
1874, April 29, P. L. 73,

59

229, 233, 239, 240, 241-244, 246, 247, 256,
1876, March 14, P. L. 7..

258, 262a, 335.
1879, April P. L. 194,.....

.150 1915, June, P. L. 736, (Employer's liability) 250,
1887, May 23, P. L. 158 (Witnesses). 252-253

332, 333-334, 337, 338, 339, 340.
1889, P. L. 157, (1899, referred to)
69a 1915, August 9, P. L. 72,.

295

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1917, June 7, P. L. 447, (Fiduciaries) Section AGENCY, 60, 88, 141.
12,

173, 300

ALIMONY, 92-94.
1917, June 17, P. L. 471, Sec. 12.

.300
1917, July 11, P. L. 832,.

.300 ALLEGATA AND PROBATA, 193.
ADMINISTRATION.

ALTERATION OF INSTRUMENT, 270.
NOTICE OF, 210.

AMENDMENT, 149, 236-237, 262a.
LETTERS OF, 271.

APPEAL,

TOWNSHIP AUDITORS, 19.
ADMISSION, 60a

JUSTICE OF THE PEACE, 152.
AFFIDAVIT OF DEFENSE, 1, 38, 50, 118- SUMMARY CONVICTION, 299.
119, 181, 188, 226-229, 243, 248.

WORKMEN'S COMPENSATION BOARD, 329, 336.
2. In a suit against defendant as accomodation RIGHT TO, 111.
endorser on a promissory note payable to plaintiff, DELAYED, PERMITTED.
an affidavit of defense is sufficient to prevent judg-

7. Defendant, within six days after judgment
ment which avers that the note was endorsed and had been rendered against him, appeared before the
delivered by defendant on a Sunday.Dowd & Co. Alderman with his bondsman, and asked for an
v. Goodman 177.

appeal, tendering the costs of the transcript, and
3. A note, bond or contract although executed on offering a bond for the debt, interest and costs.
a Sunday, is nevertheless valid if delivered on a The Alderman refused to grant an appeal unless
week day.-16.

the costs already accrued were paid. Subsequently
4. Plaintiff's decedent deposited six hundred dol- defendant again appeared at the Alderman's office,
lars payable to the order of himself or another (de- but the latter was absent because of sickness, and
fendant), and received therefor a certificate of de- the twenty days expired without an appeal being
posit. This certificate contained a proviso that the taken. Held, on a petition for a mandamus, that
money belongs to the payees jointly, it being under the petition must be granted.Emig v. Keystone
stood that either may withdraw on his or her indi-Wire Cloth Company, 139.
vidual order during their joint lives, and that any
balance remaining, upon the death of either shall
belong to the survivor. After the death of the tes-

8. Where a defendant in a suit before a justice
tator defendant presented the certificate to the bank of the peace fails to take an appeal within twenty
and drew the entire amount, with interest. Plaintif days, and depositions show that he had notice of
having brought suit therefor, the affidavit of defense the case on the return day of the summons and
set forth that the certificate of deposit was to be made no effort to appeal until after execution is-
the absolute property of the defendant, subject to sued, he is guilty of laches and an appeal nunc pro
the condition that defendant would pay decedent's tunc will be refused.Live Stock Ins. Co. v. Pat-
funeral expenses, and retain the balance

as pay-

terson, 103.
ment for the support and maintenance of the de-
cedent. Held, that a motion for judgment for want
of a sufficient affidavit of defense must be overruled. 9. An appeal from the judgment of a justice
-Waltrick's Executor v. Hockensmith. No. 2, 185. of the peace is not an action “brought in a Court

5. The plaintiff's statement assuming that, as the of Common Pleas," within the intent and meaning
money represented by the certificate of deposit was

of Sec. 1, of the “practice act" of 1915 P. L. 483.
not drawn in decedent's lifetime it became part of the procedure therein provided does not apply to
his estate, the effect of the qualifying clause

such appeals.-Miller v. Satterley, 121.
resulted in a gift contingent on the death of the APPEARANCE,
donor, and the afhdavit of defense setting up a con-

BY ATTORNEY, 17.
tract and a delivery of the money in decedent's life-

CONDITIONAL,

111.
time as a consideration, proof will be required by
the plaintiff of the matters alleged in the statement.
- 1b.

10. Rule 4 provides than an appearance de bene
6. These conflicting theories and facts as stated esse shall become general unless within ten days
by the pleadings, render it impossible for a Judge after the return of the writ the party entering the
to decide from the pleadings alone.--1b.

appearance shall file exceptions to said writ or to

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NOT GOVERNED BY PRACTICE ACT.

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