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taken to be equivalent to a renewal from time to time until the said total of three years has expired. All income from the stock in the form of dividends to be paid by the holder hereof to the said E. Baer Gitt.

Pursuant to said agreement, notes and notice, the said John Greenaway, Sr., purchased from the said Hanover Savings Fund Society, for the petitioner and on her behalf, the said 384 shares of stock of the Hanover Cordage Company and the said 130 shares of stock of the said J. W. Gitt Company, and paid said society $70,600 for the same.

"Second: In the event of the death of E. Baer Gitt at any time within three years from the date hereof, or in the event of any default in the payment of That since the said notes were given interest, the said John Greenaway, Sr., and stock transferred as aforesaid, the or the holder of this obligation, shall petitioner paid to said John Greenaway, have the right, and is hereby authorized Sr., six months' interest on the said to retain the said stock as full payment $13,000 note. of the obligation with the same force and Since that time the said John Greenaeffect as if the said stock had been sold as of the date hereof by the said E. Baer way, Sr., died testate, on the 2nd day of March, 1922. His will was duly proGitt to the said John Greenaway, Sr.. bated and letters testamentary were isfor the sum of fifty-seven thousand six sued by the register of wills of York hundred dollars; it being the intention of the parties hereto that the transaction Countyy, Pa., to John Greenaway, Jr. represented by this instrument shall have the same effect as a sale in the event either of default in payment of interest, or in the death of said E. Baer Gitt. within the said period of three years. "Witness my hand and seal. "(Signed) E. BAER GITT "Witness: Lena Strickler."

Since that time, the petitioner tendered the interest due on said notes to said John Greenaway, Jr., executor as aforeaid of the will of the said John Greenaway, Sr., as said interest became due, but the said John Greenaway, Jr., refused the same, claiming the stock as the (Seal).absolute property of the estate of John Greenaway, Sr., deceased, and that petitioner has no right, title or equity there

or his estate, nothing on account of said

The petitioner then executed and de-in, and that petitioner owes said testator, livered to the Hanover Savings Fund Society the following:

"January 21st, 1922. "Hanover Saving Fund Society,

"Hanover, Pa.



That said John Greenaway, Jr., has declared his intention to treat all of said stock as the unqualified property of the estate of said John Greenaway, Sr., de"I hereby authorize you to make sale ceased, and to dispose of the same in the of 384 shares of capital stock of Han- course of his administration of said esover Cordage Co., represented by Cer-tate as a part of the estate of said testificates Nos. 41 for 231 shares, 42 for tator.

95 shares and 40 for 58 shares, regis- The said John Greenaway, Jr., has tered in the name of the Hanover Saving filed a demurrer to the above petition, in Fund Society, Hanover, Pa., at $150.00 which he denies the jurisdiction of the per share; and 130 shares of the capital orphans' court to act on the prayers of stock of the J. W. Gitt Co., represented the petition because, he alleges and arby Certificates Nos. 35 for 100 shares, gues, "the said petition shows upon its 36 for 25 shares and 37 for 5 shares, as face that there is a substantial dispute well registered in the name of the Han-involving the property mentioned in the over Saving Fund Society, Hanover, petition." Pa., at $100.00 each to John Greenaway, Sr., Hanover, Pa. The proceeds of the sale of said shares to be applied to my indebtedness with you.

"Signed) E. BAER GITT.”

We cannot agree with the position taken by the demurrant.

We must take the undenied facts as stated in the petition as being true, until they are specifically denied.

It must be remembered that a demur-not the court inquire as to the fact in isrer does not dispute the facts as stated sue? Within certain limits, unquestionin the petition, but only raises the ques-ably it may. If at testator's death the tion of a “dispute," "a substantial dis-property is shown to have been in his pute," without defining the "dispute" or possession, or if for any other reason it stating any facts which would deny the was presumptively his, a mere denial of statements and allegations contained in the ownership unsupported will not oust the petition.

the court of its jurisdiction, but the court may proceed with the investigation so far as to inform itself whether the denial is made in good faith and a substantial dispute exists. If the dispute be a substantial one, and the title be really involved, may the court further proceed to settle and determine the matter in dis

Chief Justice Black, in the case of Knight's Appeal, 19 Pa. 493-494, has aptly said, "A fact is properly said to be in dispute when it is alleged by one party and denied by the other, and by both with some show of reason. naked allegation without evidence, or against the evidence, cannot create a dispute?" pute within the meaning of the law. If


That question can only be answered by

it could, a party might stop the distri- what the investigation reveals.
bution (transaction) whenever
chooses to make a groundless assertion."


In "Words and Phrases" (1st ed.), we find "substantial dispute" to be defined as follows: “When a conclusion of facts to be drawn from the testimony is one about which reasonable men might honestly differ. When, at the close of plaintiff's case, such a dispute exists on the evidence, a motion to non-suit on this ground cannot prevail."

It has been decided in an opinion rendered by Mr. Chief Justice Moschzisker, for the Supreme Court, in the case of Cross' Estate, 278 Pa. 170, that the orphans' court has power of its own volition to send any issue of fact to the common pleas.

The demurrant's counsel have not satisfied the court by any argument, that the orphans' court has lost jurisdiction of the proper settlement and distribution of the decedent's estate, including the matters brought before us on the petition. Under the equity powers of this court, we therefore make the following order and decree:

And now, February 9, 1925:

It is true that the legal authorities in the State of Pennsylvania, as the able counsel for the demurrant argue, have many times declared that when there is "a substantial dispute upon a material matter of fact," there can be an issue awarded to try the fact, but those decisions do not deprive the orphans' court of jurisdiction in all cases, for, as was Ist. It is ordered and decreed that said by Mr. Justice Stewart, in Cutler's John Greenaway, Jr., executor of the Estate, 225 Pa. 167, 170-171: "Presum-will of John Greenaway, Sr., deceased, ably, every item of property an executor shall not sell, assign, transfer or in any has included in his inventory belongs to manner whatsoever dispose of the 384 the estate, and for all such he must ac- shares of the capital stock of the said count. The inventory is an admission on Hanover Cordage Company involved in his part that the property embraced in it the present controversy, or the 130 came into his possession as the legal rep- shares of the capital stock of the said J. resentative of the testator. If it be W. Gitt Company involved in this conclaimed that testator owned other prop-troversy, until the further order of this erty which either came or should have court. come into the hands of the accountant, the burden is upon the party so claiming to show, first of all, that the omitted 3d. The demurrant, respondent in property was the property of the testa- this case, is ordered to file his answer to tor. Where this is denied and a claim the petition within twenty days from this of ownership in another is set up, may date.

2d. The demurrer is dismissed.

C. P. of

Allegheny Co. ing in the latter the entire title.

Eisenberg v. Wolf


lot fronted about 31 feet on East Street, and extended back about 110 feet to Gerst Alley. December 22, 1923, John Wolf made a mortgage of the same pre

Mechanics lien--Sheriff's special re-mises to Julius Eisenberg, the plaintiff,

turn Exceptions to schedule of distribution-Mortgagee New structure

to secure payment of $3,500.

March 26, 1924, Dell & Frederick, partners, filed a mechanic's lien for cement flooring against John Wolf and

Alteration and repairs-Acts of 1901 Robert A. Fisher, owner of the same

and 1905.

judic al sale to the mortgagee instead of a

mechanics' lien, where the contract was let and the last work done was prior to the placing of the mortgage, but the lien was filed

subsequent thereto.

In a mechanics' lien proceeding, it was held

to be for a new erection and construction and not alteration and repairs, where the

premises and contractors, for $1.358.78, claiming the last work had been done This mechanic's November 5, 1923.

Exceptions were sustained to a sheriff's spec.al return awarding a fund realized at alien was purchased by and was duly assigned to The Title Guaranty Company, which postponed the lien thereof to the two mortgages of the United Security Company, above recited. April 11, 1924, Julius Eisenberg, the plaintiff herein, entered judgement by confession upon the bond which accompanied the mortgage, given him by John Wolf, in the sum of $3.207.75, and issued execution thereon. Whereupon the sheriff sold the premises on May 9, 1924, to Julius Eisenberg for $2,050, of which sum the sheriff, after payment of costs and taxes, distributed the balance, $1.410.08, to die plaintiff. To this special return exceptions were filed by Dell & Frederick for use, raising the question of prority of their mechanic's lien.

rear walls of an old structure were left standing, but a new building, about 30 by 60 feet, was built, two stories high. This was connected with a partially new building in so adjusted that they could be used together. The cement floors were laid over practically

the rear, only one story high, and they were

the whole lot. This Was a new structure within the meaning of the law.

Exception to sheriff's special return.

Edwin B. Goldsmith, for plaintiff.
Samuel L. Dille, for defendant.

Before Swearingen, Cohen and Kline,

In the spring of 1923, while John Wolf and Robert A. Fisher were together the owners of the premises, they determined Swearingen, J., January 8, 1925- This to erect an auto repair shop and garage case came before us upon exceptions to upon the lot aforsaid, There was no a sheriff's special return. The sheriff general contractor. They themselves let distributed the balance of the money in the contracts for erecting the various his hands to the plaintiff as mortgagee. parts of the structure, such as excavaThe exceptants claimed that this bal- tion, foundation, cementing, etc. ance should have been distributed to structure upon the lot was removed, but their mechanic's lien, asserting that it there were left standing the rear wall was prior to the mortgage, though later

in date.


and a portion of the side walls, which were but one story in height and extendJohn Wolf, the defendant, and Robert, ing from Gerst Alley in the rear toward A. Fisher were each the owner of an un- East Street about go feet. They condivided half of the premises described tracted with Knopp & Stork for the erecin the above stated writ, and on Novem- tion of a new building two stories high, ber 22, 1923, each of them made a mort- having the front on East Street and exgage of his interest to United Security tending back about 60 feet until it joinLife Insurance & Trust Company, as seed with the old stable walls in the rear; curity for his debt of $9,000, or a total for the removal of the stable partitions; of $18,000; and on December 7, 1923. and for putting a new skylight on the Robert A. Fisher conveyed his interest rear portion, which was but one story in the premises to John Wolf-- thus vest- in height.

The law was held to be the same after

the passage of the Act of 1901. Dunbar Washington Foundry, 210 Pa. 58.

By August the building was ready for It is but fair that the building should the cement work. August 27, 1923, Dell present to the eye that external change & Frederick gave Wolf and Fisher a indicating newness of structure which is written offer "To do the cement floor in calculated to put purchasers, mortgagees your garage" for $797. The bid was ac-and other lien creditors upon an inquiry cepted orally, and they began work un- for liens." Miller v. Hershey, 59 Pa. 64. der the contract a few days afterwards. There was considerable delay, some of which was caused by other work, but they greater part was because Dell & FredHow then can it be said that what was erick had to excavate for the boiler room, done here was but an alteration and rewhich was placed under the rear, put in pair of an old structure? A new builda concrete wall and underpin stone walls ing, about 30 by 60 feet, was built, two of the main part, and had some rein-stories high, fronting on East Street. forced work. This produced quite a This was connected with a partially new lot of extra work. The extras amounted building in the rear, only one story high, to $691,28. Dell & Frederick, however, and they were so adjusted that they allowed a credit of $120.50 for some old could be used together. The cement floors were laid over. practically the whole lot. As one of the witnesses said, Anybody can see it is a new building

floor between the front and rear and in the boiler room, which was found sufficient. So that the total amount of the bid and the extras was $1,358.78.

According to the testimony, the last work was done by the exceptants on November 5, 1923. Their mechanic's lien was filed on March 26, 1924. If the building erected was a new structure, their lien was filed in time; if it was a case of mere altering and repairing an old building, then their lien was filed too late. This, therefore, is the important question for decision.

Section 3 of the Act of June 4, 1901, P. L. 431, provides:

there now." We have no doubt this was a new structure, within the meaning of the law. Neither have we any doubt that the last work was done November 5. 1923. Consequently the mechanic's lien was filed within six months after the completion of the work.

The plaintiff contended that the lien was insufficient. With this contention we do not agree. This lien was not filed under the Act of 1901, P. L. 431. It was filed under the amendment thereof, approved April 17, 1905, P. L. 172, which struck down Section II of the Act of IQOI.

"A substantial addition to a structur or other improvement shall be treated as a new erection or contruction thereof and the addition and the structure or In this case there was no general conother improvement of which it becomes tractor and no architect, and the owners a part, and the curtilage appurtenant to let the various contracts themselves, as both, shall be subject to the lien. Every before stated. There was about August adaptation of an old structure or other 27, 1923, a written contract for the improvement to a new or distinct use, cement flooring, which is attached to the which effects a material change in the in- lien. There was an oral contract to exterior or exterior thereof, shall also be cavate for the boiler room and for supdeemed an erection or construction there-porting the cement floors above the same, of."

This was no more than restating the law as declared under the Act of 1836, P. L. 695.

which are all set forth in the bill of particulars attached to the lien; and the owners and contractors have never raised any objection thereto. In our opinion, the mechanic's lien filed is in compliance with the Act of 1905, which restored the law to what it was prior to the Act of 1901, with respect to what such a lien must contain.

"The idea which runs throughout all the cases is newness of structure in the main mass of the building-that entire change of external appearance, which denotes a different building from that which gave place to it, though into the| The extras were made necessary by composition of the new structure some what the owners agreed the mechanic's of the old parts may have entered. *** lien claimants should do. These extras

were thereby made a part of the original practicable for him to carry out the purcement contract, because the flooring chase, he arranged with Frank J. Rines,

could not be laid until the boiler ro was put in shape to hold the floor whic covered it. All of the foregoing could have been seen by the mortgagee, this plaintiff, when he was negotiating for his

[blocks in formation]

Sheriff's sale--Act 20 April, 1905, P.

L. 239-Purchaser's right to possession

--Landlord and tenant.

one of the petitioners, that Rines take his place as purchaser of the property. Both parties agree that Rines was to repay to DeGeorge the $200 paid to the sheriff. DeGeorge contended that in adRines the sum of $200, as a profit. This dition to this he was to receive from

is denied by Rines. Rines associated him and they two received from the William Kosak, the other petitioner, with sheriff a deed for the property occupied received the deed from the sheriff, they by DeGeorge. Sometime after having demanded possession of the premises from DeGeorge, who refused to surrender possession, besause, as he alleged. Rines had failed to rarry out the terms of their agreement, in that he had failed to pay him the $200 paid to the sheriff and the $200 profit. Admittedly Rines had not paid him the $200 paid by DeGeorge to the sheriff. Rines and Kosak then started a proceeding under the Act of April 20, 1905, P. L. 239, to recover possession of the premises. An answer was filed to their petition and depositions for each side were taken while the

proceeding was pending. Before the

matter came before the court for final disposition, DeGeorge vacated the premThe Act 20 April, 1905, P. L. 239, was in-ises, and when the ease came up for arway to enable purchasers at sheriff's sale to gument the petitioners were in possesacquire possession of the property they pur-sion of it. chased, and does not apply in a case where a landlord seeks to oust his tenant.

tended to provide a new and more efficient

So far as the possession of the prop

Proceedings under the Act 20 April, erty was concerned, the question be1905, P. L. 239, to recover possession of comes merely a moot one except in so premises. far as the costs are concerned. An examination of the depositions shows that I. A. Witman, Jr., and John B. Stev-both sides contended that after Rines ens, for plaintiff.

had agreed to become the purchaser of Rothermel & Manger, for defendant. the premises in the place of DeGeorge, they had also agreed that DeGeorge was Biddle, P. J.. Ninth Judicial District, to continue in possession of the premises specially presiding, November 22, 1924. for some period of time. What that --Samuel DeGeorge, the respondent in period was and just what the terms were, this proceeding, was the tenant of a prop-were disputed, the parties giving differerty on Sixth street, in the city of Read-ent versions, but both agreeing that it ing. During his tenancy, the property had been agreed that DeGeorge was to was sold by the sheriff on an execution remain in possesson for sometime longer. based on a judgment which antedated The petitioner Rines states, among other DeGeorge's lease, DeGeorge became the things in regard to this: "I further sent purchaser at the sherifi's sale and paid Mr. DeGeorge, probably five weeks af$200 to the sheriff on account of the ter the two weeks agreed upon were up, purchase price. Finding that it was im- a notice to vacate the property, which

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