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the court, which, at the suggestion of the Even if the court were disposed to visbar, adopted the rule, not for the expedi- it upon the defendant punishment for the tion of the public business, or the con- act of some one other than herself, the venience of the court itself, but to make fractured rule does not authorize the more pleasant the performance of duty drastic penalty proposed by counsel for by the officers of the court. Whenever the plaintiff. To strike off the appeal invoked, therefore, the rule ought to be would work a substantial denial of jusenforced Laughlin v. Prigg, 3 Dist. R., tice to the defendant who may be pos418 (1894), Waddell, P. J. (15th Dis-sessed of a perfect defence to the claim trict). in action. The defendant should not be
Conceding, however, that security was so stripped of her day in court unless the entered here in plain contravention of a contemplated deprivation finds full sancwise and venerable rule of court deserv- tion in the rule of court invoked for that ing obedience, it does not follow, neces-specific purpose. sarily, that the motion to strike off the appeal must be allowed.
And now, this twenty-eighth day of March, 1924, the motion to strike off the appeal from the judgment of the justice of the peace is overruled and the sole reason in support thereof is dismissed.
In the first place, the inhibition, which is directed toward prothonotaries, clerks of court and officers concerned in the execution of process, as well as attorneys, includes only officers of the court. No C. P. of
one other than an officer of the court can violate the rule.
Adoption of Evelyn Marion Waters
It is not contended that the defendant broke the rule. Since she is not an attorney, it is beyond possibility that she could have violated it. It may be true.lct of May 28, 1915, P. L. 580. that the member of the bar who became surety for the payment of future costs was, at the time of so doing, counsel for the defendant, but, in this connection, it must be borne in mind that it was not as the legal representative of the latter that the former signed the appeal bond. On the contrary, he executed it in his own individual capacity. For himself, and not as her agent, he gave the obligation.
Where the parents are living, an affirma
tive decree for the adoption of their child
Petition for adoption. Refused.
Newcomb, J., March 21, 1924.—The circumstances are somewhat out of the ordinary.
To allow the motion is to deprive the defendant of a right granted her by the legislature. The judicial arm of the state government ought not to deprive a citizen of a boon given by the legislative The petitioner stands in the relation hand unless that citizen has done some- of a quasi stepfather to the girl, Evelyn, thing to warrant the forfeiture of the sought to be adopted. Her parents, Mr. privilege conferred. Here, the defend- and Mrs. Waters, had been divorced and ant, has done nothing at all, much less she had remained with the mother. anything wrongful. To take the judicial Eventually the mother married Mr. Evaction sought, therefore, would amount ans, the petitioner, and since then Evelyn to a direct punishment by the court of an has lived with him as a member of his innocent client for the act of an officer family. The avowed reason for this apof the court. To do this would be flag-plication is the child's desire to bear the rantly unjust and, hence, is unthinkable. same name by which the mother is now known.
In the second place, the rule is significantly silent as to any manner in which the appeal can be affected by an infraction on the part of an officer of the court.
On the supposition that she will continue to have her home with the mother, such reason would in itself be all right
enough, though its bearing on the merits O. C. of might be doubtful.
The ultimate question in such case is merely that of her permanent welfare. No doubt the petitioner and his home are free from objection, and therefore, on the score of her welfare, there need be no misgivings.
But the trouble is that the jurisdiction
Wills--"Issue" does not include an adopted person.
"Issue," when used in a will, prima facie, means heirs of the body.
An adopted daughter of a son of a testator is not entitled to participate in a distribution
is strictly statutory and the conditions made under the following clause of the tes
tator's will: "the proceeds thereof [shall be]
under which it can be exercised some-equally divided between all my grandchildren what limited.
and the issue of any deceased grandchild 串串 the issue of such grandchild to take his
parent's share by representation."
Exceptions to the report of the auditor appointed by the Orphans' Court of York County, Pa., to distribute the balance on the account of Emma Jane Witman, trustee under the will of Jacob Bucher, deceased.
Thus, where the parents are living, an affirmative decree is conditioned upon their consent, save only where the parental right must, on due proof, be deemed to have been forfeited for drunkenness, proflgacy, etc., or neglect to provide for the child: Act May 28, An adopted daughter of a son of the 1915, P. L. 580. testator presented a claim for participaSuch proof is lacking here. The fath-tion in the distribution of a fund be
er, who contests the proceeding, is a sober man. His moral character has not been questioned. For years he has been in the service of one employer. That he has at all times cherished a father's affection for this little girl is not disputed. That he has been quite ready to provide a home for her is asserted by him and not contradicted. Indeed it is freely admitted by Mrs. Evans that she not only never asked him for any contribution to the child's support, but that any attempt on his part to so contribute would have been futile, and any offer thereof would have been spurned.
testator. The auditor rejected her claim,
John A. Hoober, for exceptions.
Ross, J., March 17th, 1924.—It appears by the facts found by the auditor, undenied and undisputed by the exceptant, that the fund which the auditor was Without prolonging the discussion, it appointed to distribute amongst those must suffice to say that in such state of who are legally entitled thereto is a fund facts the father's protest can not be diswhich was part of the estate of Jacob Bucher, who died testate. His will was regarded.` It may be the child would dated September 17, 1888, and a codicil have a standing to apply for leave to thereto was dated the same date as the change her name; but that is a question will. Both were probated after his death about which no opinion can now be ex-in the register's office, this county, and pressed. letters testamentary were granted to the executors named in the will.
The motion is denied and the petition. dismissed.
The second item of the will reads as follows: "I give and bequeath, after the
"Issue' in a will, prima facie, means heirs of the body": Robins v. Quinliven, 79 Pa. 333.
death of my said wife, unto my daughter his will, it must be presumed that he inAmanda, now married to Cornelius tended it to take effect as if executed imWelker, the interest and dividends on mediately before his death. There is sixty shares of the capital stock of the nothing in the will which indicates a conYork Water Company, for and during trary intent: Gummy's Estate, No. 1, 234 her life, and after the death of my said Pa. 139. daughter the said sixty shares of stock shall be sold and the proceeds thereof equally divided between all my grandchildren ( * * * ) and the issue of any deceased grandchild, who shall be living at the death of said Amanda Welker, the issue of such deceased grandchild to take his parent's share by representation.”
The decedent's wife died. The said Amanda Welker died in February, 1923, and the said sixty shares of the stock of the York Water Company were sold by the surviving executrix, as directed in the will, who filed her account of said trust, and the balance on that account is the fund for distribution.
The testator could not possibly have known that his son would adopt a child long after his will was executed.
It has been held by Judge Smith, of Lancaster County, in Bealor's Estate, 23 D. R. 1117, that "a bequest of a remainder to lawful issue' will not be held to include a child adopted after the death of the testator"; and by Judge Hughes, of Washington County, in Thomas' Estate, 2 D. & C. 89, that "The Act of June 7, 1917, P. L. 429, Sec. 16, does not give to the children and descendants of adopted children the right to inherit from their parent's natural ascendants and collateral relatives."
Among the decedent's children who survived him at the time of his death, in 1888, was a son named Jacob Franklin As has been shown by decisions quoted Bucher. That son, on the 5th day of by the learned auditor in his report, Auguts, 1895, by proceedings in the "The right of inheritance is purely statCourt of Common Pleas of York Coun-utory and he who claims a share in the ty, Pennsylvania, adopted as his child a inheritance must point to the law which certain girl named "Mirl Gross, now transmits it to him": Goldstein v. HamMirl Gross Bucher." mill, 236 Pa. 309; Boyd's Estate, 270 Pa. 504, 507.
The said Jacob Franklin Bucher, the said adopting father, being dead, the said Mirl Gross Bucher claims that she is entitled to a share of the fund for distribution as a grandchild of said Jacob Bucher. Because the auditor refused to recognize her as one who was legally entitled to a share in the fund, she has filed exceptions to his report.
It is not necessary to add anything to the comprehensive report of the auditor, because his conclusion is so logically enforced by his citations of the law upon the question involved, that we cannot make it clearer.
The auditor has pointed out that the cases upon which the counsel for Mirl Gross Bucher rests the exceptions are not applicable to the conditions of the present case.
And now, March 17th, 1924, the exceptions to the auditor's report are dismissed, and the report is confirmed.
Criminal law-Forfeiture of vehicle—
It will be observed that the testator intended the bequest to go, after the death of his wife and daughter, Amanda, Statute strictly construed-Chattel mortto "all (his) grandchildren (* and the issue of any deceased grand-gage-Act of March 27, 1923, P. L. 34. child." We take it that the testator meant by "issue" descendants, all per- strictly construed and in a manner as favorsons who have descended from a common ancestor, for, at the time he made
A statute imposing a forfeiture should be
able to the owner of the property as is consistent with fair principles of interpretation.
Where a chattel mortgage is valid under
Section II of the Act of March 27, 1923, supra, provides: "Upon the transportation of intoxicating liquor in violation of this act, the wagon, buggy, team, motor vehicle, water or air craft,
M. L. Davis, District Attorney, for or other vehicle or receptacle in which it Commonwealth.
Craig & Blass, for defendant.
is so transported shall be forfeited to the Commonwealth, subject to the provisions herein set forth." Par. III provides for a public sale thereof and the character of the notice to be given prior to such sale, and further, "In the event that any such vehicle, team, conveyance, or craft is when so seized, held and possessed under a bailment lease or contract and the legal title thereto is in another person who shall prove that the unlawful use for which the same was seized was without his knowledge or consent, then the claim of the bailor for money due under such bailment lease or contract shall attach to and be paid out of the funds derived from said sale
Hirt, J., April 21, 1924.-A forfeiture under criminal proceedings in strictness is not a fine or a penalty, but rather a term expressing the result which flows from a failure to comply with the law, and a statute creating a forfeiture is constitutional though consisting in deprivation of property without due process of law when such forfeiture fairly tends and is reasonably necessary to accomplish legitimate purpose under the police power. 25 C. J. 1172. The proceedings on a forfeiture are usually in rem and by the terms of the act of assembly in question (Act of March 27, 1923, P. L. Chattel mortgages have not been rec34) it is provided that the proceedings ognized under the policy of the law in shall be in rem, and by reason of the na- Pennsylvania except between the parties ture of the proceedings it is immaterial to the mortgage. Where other rights inthat the person transporting liquor is not tervene they have been held to be against the owner of the vehicle used in the public policy unless the mortgaged pertransportation. "It is a well recognized sonalty is in possession of the mortgagee. principle of law that where a thing A mortgage of personal property withwhereof there is an owner passes into a out a change of possession confers no situation antagonistic to the lew, he may valid lien upon the mortgagee. Clause v. lose his ownership in it simply because Majestic A. H. Co., 250 Pa. 194; Enterthe thing is the offender. The punish-prise W. P. Co. v. Bantoul Co., 260 Pa. ment, if such it be called, falls on the thing even though the owner be not personally guilty of crime. They (the things seized) are arrested and proceeded against as defendants; they are acquitted or condemned as though they were competent to stand in judgment for their violation of the statutes." Oyster Comm. v. Schooner Carsoll, 61 La. 51; quoted in 25 C. J. 1171, note 34.
A statute imposing a forfeiture should be strictly construed and in a manner as favorable to the person whose property is to be seized as is consistent with fair principles of interpretation. The question here, therefore, is whether or not a
540; Estate of Jackson, 5 Sadler, 573;
In all the cases, however, so far as we are able to find, a chattel mortgage has been held to be invalid and inimical to public policy only where the transfer of title by the mortgagor without a transfer of possession leaves the indicia of ownership in the mortgagor and thereby results in fraud on bona fide creditors or purchasers. Consideration for the rights of creditors without notice and of purchasers in good faith is at the basis of these decisions. Under the laws of the
state of Ohio, the locus contractus in sale; the balance, if any, shall be paid to this case, a chattel mortgage is valid as the county treasurer for the use of the against the whole world. Here such county of Erie. mortgage, even though valid in the state
in which it was executed, confers no title O. C. of or lien as against bona fide creditors or purchasers.
Estate of George W. Farquhar
money in hands of administrator-Authority of administrator to sell real estate.
When an account is filed by an adminis
his hands; how he became such administra
In re confirmation and adjudication of administration account.
The principles of public policy which demand such protection to creditors or innocent purchasers, in our opinion cannot justify the Commonwealth in disregarding a contract which is valid where made in another state, and in declaring a forfeiture of the mortgaged property, if the mortgagee is innocent of violation of law. Something might be said of the in-trator d. b. n. c. t. a. and the money in his iquity of the sale of automobiles on in-hands arises from real estate, he must show stalment contracts, but the practice is the manner in which this money came into general and must be recognized as legiti-tor and what authority he had to sell the real mate. In Pennsylvania such sales are accomplished by means of bailment or conditional sales contracts, in other states by chattel mortgages. Where the right to work a forfeiture is involved, we W. M. Fausset, for accountant. believe, the principles of comity demand Wilhelm, P. J., April 28, 1924.--From that an innocent mortgagee of personal the evidence, we find the following property be given the standing accorded a bailor under the Act of Assembly in Although this account was regularly question. Such mortgagee should have a called for audit, it should not be conlien on the proceeds of sale for the un-firmed, for the following reasons: paid balance of his mortgage, but has no First-It appears that George W. standing to claim the seized property as Farquhar died in the year 1846, and the owner, for comity cannot demand that a accountant is administrator d. b. n. c. t. mortgagee receive more than the amount] a. of his estate. This account includes unpaid on the mortgage when a chattel only moneys arising from the sale of real has been seized while used in violation of estate. The manner in which this money the law. The Commonwealth has an in- came into the hands of the administraterest in the fund arising from the sale tor d. b. n. c. t. a. has not been revealed. of the offending chattel after the satisfaction of a bailmetn controct or a mort
The testimony clearly shows that the automobile when seized was being used in the illegal transportation of liquor, and also that the claimant had no knowledge of such use.
And now, to wit, April 21, 1924, the automobile described in the petition is adjudged forfeited and it is ordered that the sheriff of Erie county sell the same at public sale after due notice as required by law. After the payment of costs of claim of E. F. Halfinger for $700.00, with interest from November 12, 1923, shall attach to the proceeds of
Second:-It has not been shown by what authority, after a lapse of about seventy-eight years,. the Schuylkill Trust Company became administrator.
Third: The nature of the proceeding by which the administrator obtained authority to sell the real estate is not stated, that is whether for the payment of debts or as trustee in partition for the sale of real estate or otherwise.
The only papers presented at the time. of the audit are the account, which simply shows that the money included in the account arose from the sale of real estate to which is attached a list of heirs, which is defective in that it leaves the relationship of some of the heirs to