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O. C. of

ORPHANS' COURT

Egan's Estate

Kathryn Gallagher testifies that the will was written by her at the request of her Schuylkill Co. mother; the mother dictating the will and the witness writing as the mother dictated, and that the language in the will as set down were the words of her mother as

Issue devisavit vel non--
--Question of Fact-dictated. The will was written between
Jury Trial.

The legal sufficiency of a writing alleged to be a will constitutes question of fact which is sufficient to award an issue to be determined by jury.

Petition for Issue.

eleven and twelve o'clock on the night of May 20, 1916; that the only persons present were Kathryn Gallagher, Mary V. Durkin and the testatrix, that the mother was suftering from a serious illness, and that the testatrix took the pen in her hand, and un

J. F. Whalen, O. E. Farquhar and D. J. aided made the mark to her will and the Ferguson for Will.

M. M. Burke, contra.

will was then and there signed by the wit

nesses.

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 of the paper she was taken to a hospital and May, 1916. Letters of administration were 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.

On the 14th day of June, 1916, Thomas C. Egan presented to the register a paper purporting to be the last will and testament of Mary Egan, and asked that the letters of administration issued to him be revoked. The letters of administration were revoked, and the alleged will of Mary Egan probated by the register, and letters testamentary issued to Thomas C. Egan.

The witnesses to the will were Kathryn Gallagher and Mary V. Durkin.

The estate of Mary Egan amounts to about nine or ten thousand dollars. Thomas

C. Egan is the chief beneficiary in the will, which is as follows:

cease the sum of Five Hundred Dollars.
To my daughter Annie McHale, wife of
Richard A. McHale will be given three
Hundred Dollars provided in the will of

Shenandoah, May 29, 1916. MARY EGAN'S LAST WILL I Mary Egan being of sound mind give devise and bequeath to my son Thomas C. Egan all my stocks, bonds, notes, mortgages and other papers of indebtedness together with my household furniture and my interests 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 that her affidavit before the register as to the execution of the will by Mary Egan was untrue. She now asserts that Mary Egan did not execute the will in her presence; my beloved husband. that her signature as a witness to the will was written on the paper some days after Mary Egan was buried; and that the first time she saw the paper was the day upon which she attached her signature thereto. She says that she signed the will as a witness at the request of Kathryn Gallagher, the other witness, and that a short time after the will was probated, she had two talks with Kathryn Gallagher in which she expressed her desire to undo the wrong she had committed in signing the paper and in securing the probate.

Witnesses:

Kathryn Gallager,

Mary V. Durkin."

her Mary X Egan mark

On the night of the alleged execution for the will, Thomas C. Egan, a student at Georgetown College, returned to Shenandoah, and was in the home of Mary Egan, and in bed at the time the will is said to have been executed. Thomas C. Egan, the principal beneficiary, alleges that he did not

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 Galistration 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 evening of the day letters of administration were issued to him, when he was informed by Kathryn Gallagher that his mother had made a will and was directed to the place containing the will.

It is unnecessary to discuss all of the testimony, because we think we have pointed out sufficient testimony which justifies us in submitting this case to a jury. And if a jury should find a verdict against the will, the court would not feel constrained, under the testimony, to set aside that verdict.

If Mary V. Durken was not corroborated 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 proponissue because it might be a dangerous prac-ent's evidence does not meet, answer and tice to strike down a wall when a subscribing overthrow the contestant's case so as to witness attempts to nullify it by declaring leave a one-sided issue. that her testimony before the register was untrue. But in this case the self-discredited witness is corroborated by the testimony of other witnesses, one of whom, Annie McHale, states that she was in the home and room of her mother at the time that Kathryn Gallagher says the will was dictated, reduced to writing and executed; and who positively states that Mary Egan, her mother, did not make a will during this night.

The testimony of Annie McHale is corroborated by her husband, Richard A. McHale, who says that Annie McHale was at the house of Mary Egan at the time she describes and that he called at the house of Mary Egan at twelve o'clock for the purpose of accompanying his wife to their home.

Considering the whole evidence, we cannot say that a jury would not be justified in finding a verdict against the will. There are questions of fact here to be decided, and that is clearly within the province of a jury, therefore, an issue should be awarded.

The legal sufficiency of the writing is in dispute, and the testimony against the execution of the will is sufficient to carry it to the proper tribunal, and the function lies in the hands of a jury.

An issue devisavit vel non is granted, and counsel is ordered to prepare a paper in the nature of a precept for an issue to the Court of Common Pleas for trial of the fact whether or not the paper probated as the last will and testament of Mary Egan was executed by the said Mary Egan.

OYER AND TERMINER

William J. Durkin, another witness, says he was at the house of Mary Egan on this night, having called there about eleven 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 call.

Mary V, Durkin is further corroborated by the appearance of the will itself. An examination of the paper may well raise a doubt as to whether the name of Mary V. Durkin was appended to the will at the time it was written, because the name of Mary V. Durkin appears to have been written with a different kind of ink from that used in the body of the will, the name of Mary Egan appended thereto, and the name of Kathryn Gallagher, the other witness.

This peculiarity in the will as well as the fact that the existence of the will was not known by Thomas C. Egan for sixteen days after its alleged execution, although he was an inmate of the house of Mary Egan during all of the time between its execution

Allegheny Co.

Com. v. Ramsey. Rape-Information-Indictment--Variance as to Crime and Name.

Motions to quash the indictment and in arrest

of judgment were refused where it was alleged crime of rape, while the indictment founded upon that the information charged the common law it charged the statutory crime of rape, and the information charged Albert Ramsey, while the indictment charged Berdett Ramsey, in that de

fendant was indicted and tried for the offense actually committed, and the only place where the name Albert really appeared was upon the endorsement which was no e sential part of the record, the name Albert in the indictment proper having been scratched out and Berdett substituted presumably before the administration of the oath.

The fact that in an information charging the defendant with the crime of rape, the additional

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-year-old girl did not any the less make it the crime of statutory rape. The particular kind of rape committed by defendant would necessarily depend upon the proof adduced.

Motion for arrest of judgment.

rape and the particular kind of rape committed by defendant would necessarily depend upon the proof adduced.

In Commonwealth v. Dingman, 26 Supr. Ct., at p. 619, the question of the insuffici

R. H. Jackson, District Attorney, for ency of the information to support the in

Commonwealth.

Edward G. Coll for defendant.

dictment was raised. The opinion of the Appellate Court, Porter, J., thus states the 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 the person of Pearl Adair, at the time of the trial aged about 13 years—and, according to the evidence, between 11 and 12 years of age when defendant first began his criminal relations with the girl.

Before going to trial defendant moved to quash the indictment on two grounds:

(1) That the information charged the common-law crime of rape, while the indictment found upon it charges the statutory crime of rape.

sufficiently informed the defendant that he might be put on trial for the crime charged in the indictment. It is not necessary that an information shall charge the crime with the same detail and technical accuracy required in an indictment; if the essential elements of the offense be set forth

in terms of common parlance, the informa

tion will be held sufficient."

The remaining ground is of no greater merit. An examination of the caption of the information shows that the defendant as Berdett Ramsey was charged with the (2) That the information charges Al-offense-the name "Berdett" having been bert Ramsey, while the indictment charges written by the magistrate over the name Berdett Ramsey.

This motion was refused and defendant, under the name of Berdett Ramsey, pleaded and went to trial.

If defendant were indicted for a mure serious grade of offense than that charged in the information, he might well complain, but he was indicted and tried for the offense actually committed-statutory rape.

The inexperience of the magistrate, who mistakenly charged common-law rape, and the lack of knowledge of the father who made the information, thus embodying some erroneous statements, should not be permitted to prevent judgment against a defendant properly indicted upon the facts.

"Albert" presumably before the administration of the oath. The transcript of the magistrate's docket shows that the defendant's name was properly entered as Berdett Ramsey, without any erasure or change, and the recognizance of prosecutor, appended, shows the same name, as does also the entry following the caption, "names, residences and occupation of the defendant, bail and witnesses."

The only place in which the name Albert Ramsey really appears is upon the endorsement of the document. This endorsement, which is no essential part of the record, evidently misled the counsel for defendant.

The defendant, as Berdett Ramsey, was identified by the witnesses, including Pearl Adair, as the person charged with the offense. He, as Berdett Ramsey, went upon the stand and identified himself as living at Adair's, knowing and associating with Pearl Adair, giving her gifts, accompanying her to theaters and nickelodeons, as alleged by the

Especially is this true where, as here, the transcript of the magistrate shows that in the presence of the defendant, the witnesses for the Commonwealth, including the child in question, were sworn, and their evidence necessarily disclosed the details of the actual charge against the defendant, as being stat-prosecutor. There was no question at the utory and not common-law rape.

The information charged the defendant with the crime of rape committed upon the body of Pearl Adair, and charges the felonious carnal knowledge of the body of the child. The additional and mistaken allegations of force, and that such knowledge was against the will of Pearl Adair, did not any

trial about identity, and, as already stated, the information being really against Berdett Ramsey, there is no occasion for further discussion.

The motion for arrest of judgment is refused and the defendant is directed to appear for sentence at such time as the District Attorney shall require.

INDEX

OF CASES REPORTED IN THIS VOLUME

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

ACCEPTANCE,

NON, OF GOODS 55-56.

OF OFFER, 50-52.

ACCORD AND SATISFACTION, 146.

1893, June 10, P. L. 415..
1899, April 28, P. L. 157,..
1901, June 4, P. L. 431, Sec. 10,.
1901, June 4, P. L. 364,.

1901, June 4, P. L. 364,.
1901, June 4, P. L. 404, Sec. 33,.
1901, June 4, P. L. 364, Sec. 11,.

1. To a statement filed by the liquidator of a de-
runct live stock insurance company, averring indebt-
edness by reason of assessments on policy holders for
unpaid losses and expenses, defendant filed an affi-1901, June 4, P. L. 364,.
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,.
all claims and the payment of the same by check. 1903, March 19, P. L. 42,.
HELD, to be a sufficient defense.--O'Neil v. Hein-
1903, April 16, P. L. 212,.
inger 62.
1905, April 20, P. L. 239,.
1907, May 28, P. L. 262,.
.299 1909, April 20, P. L. 239,.
1501911, May 18, P. L. 309.
841911, June 9, P. L. 756,.

ACTS OF ASSEMBLY.

1794, April 2, 3 Smith's L. 177,.

1814, March 22, 6 Smith's L., 182.
1833, April 8, P. L. 313, Sec. 12,
1834, February 24, P. L. 75,..

273

.69 a

..172
179-302
179, 302

14

.187

.87, 178, 302

149-151

179

.302

273

147

30

147

292

.337

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

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2. In a suit against defendant as accomodation
endorser on a promissory note payable to plaintiff,
an affidavit of defense is sufficient to prevent judg-
ment which avers that the note was endorsed and
delivered by defendant on a Sunday.-Dowd & Co.
v. Goodman 177.

3. A note, bond or contract although executed on
a Sunday, is nevertheless valid if delivered on a
week day.-lb.

4. Plaintiff's decedent deposited six hundred dol-
lars payable to the order of himself or another (de-
fendant), and received there for a certificate of de-
posit. This certificate contained a proviso that the
money belongs to the payees jointly, it being under-
stood that either may withdraw on his or her indi-
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-
tator defendant presented the certificate to the bank
and drew the entire amount, with interest. Plaintiff
having brought suit therefor, the affidavit of defense
set forth that the certificate of deposit was to be
the absolute property of the defendant, subject to
the condition that defendant would pay decedent's
funeral
and retain the balance as pay-
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.
Waltrick's Executor v. Hockensmith. No. 2, 185.
5. The plaintiff's statement assuming that, as the
money represented by the certificate of deposit was
not drawn in decedent's lifetime it became part of
his estate, the effect of the qualifying clause
resulted in a gift contingent on the death of the
donor, and the affidavit of defense setting up a con-
tract and a delivery of the money in decedent's life-
time as a consideration, proof will be required by
the plaintiff of the matters alleged in the statement.
-Ib.

expenses,

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

ALTERATION OF INSTRUMENT, 270.

AMENDMENT, 149, 236-237, 262a.

APPEAL,

TOWNSHIP AUDITORS, 19.

JUSTICE OF THE PEACE, 152.
SUMMARY CONVICTION, 299.
WORKMEN'S COMPENSATION BOARD, 329, 336.
RIGHT TO, 111.

DELAYED, PERMITTED.

7. Defendant, within six days after judgment
had been rendered against him, appeared before the
Alderman with his bondsman, and asked for an
appeal, tendering the costs of the transcript, and
offering a bond for the debt, interest and costs.
The Alderman refused to grant an appeal unless
the costs already accrued were paid. Subsequently
defendant again appeared at the Alderman's office,
but the latter was absent because of sickness, and
the twenty days expired without an appeal being
taken. HELD, on a petition for a mandamus, that
the petition must be granted.-Emig v. Keystone
Wire Cloth Company, 139.

LATCHES IN TAKING.

8. Where a defendant in a suit before a justice
of the peace fails to take an appeal within twenty
days, and depositions show that he had notice of
the case on the return day of the summons and
made no effort to appeal until after execution is-
sued, he is guilty of laches and an appeal nunc pro
tunc will be refused.-Live Stock Ins. Co. v. Pat-

terson, 103.

NOT GOVERNED BY PRACTICE ACT.

9. An appeal from the judgment of a justice
of the peace is not an action "brought in a Court
of Common Pleas," within the intent and meaning
of Sec. 1, of the "practice act" of 1915 P. L. 483.
The procedure therein provided does not apply to
such appeals.-Miller v. Satterley, 121.
APPEARANCE,

BY ATTORNEY, 17.
CONDITIONAL, 111.

DE BENE ESSE.

10. Rule 4 provides than an appearance de bene
esse shall become general unless within ten days
after the return of the writ the party entering the
appearance shall file exceptions to said writ or to

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