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with othe Hall
1 robe MIC
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
know that his mother had executed a will and production of the will, are facts which
the court would not feel constrained, under
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.
Allegheny Co. call.
Com. v. Ramsey.
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
and mistaken allegations of force and that the the less make it the crime of rape-statutory
In Commonwealth v. Dingman, 26 Supr.
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.
The Syllabi are numbered consecutively. The black face figures refer to these syllabi.
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,.
.87, 178, 302
1903, April 16, P. L. 212,.
1905, April 20, P. L. 239,
1907, May 28, P. L. 262,.
.17 1913, June 26, P. L. 1408, Sec. 29,. 26-27
58 1915, May 14, P. L. 483, (Practice Act) 9, 227,
229, 233, 239, 240, 241-244, 246, 247, 256,
258, 262a, 335.
.150 1915, June, P. L. 736, (Employer's liability) 250,
332, 333-334, 337, 338, 339, 340.
1917, June 7, P. L. 447, (Fiduciaries) Section AGENCY, 60, 88, 141.
.300 ALLEGATA AND PROBATA, 193.
ALTERATION OF INSTRUMENT, 270.
AMENDMENT, 149, 236-237, 262a.
TOWNSHIP AUDITORS, 19.
JUSTICE OF THE PEACE, 152.
WORKMEN'S COMPENSATION BOARD, 329, 336.
7. Defendant, within six days after judgment
appeal, tendering the costs of the transcript, and
the costs already accrued were paid. Subsequently
8. Where a defendant in a suit before a justice
5. The plaintiff's statement assuming that, as the of Common Pleas," within the intent and meaning
of Sec. 1, of the “practice act" of 1915 P. L. 483.
such appeals.-Miller v. Satterley, 121.
BY ATTORNEY, 17.
10. Rule 4 provides than an appearance de bene
appearance shall file exceptions to said writ or to
LATCHES IN TAKING.
NOT GOVERNED BY PRACTICE ACT.
DE BENE ESSE.