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where the evil intended to be remedied does not exist.

George W. Farquhar to be gathered of their duties. The act does not operate from inference rather than statement of fact, and copies of the wills of George W. Farquhar and Beatrice Farquhar


The act of June 18, 1923, P. L. 840, does

not extend, or in any wise affect, the jurisdiction of the orphans' court, so as to bring within it cases, or a class of cases, not pre

viously cognizable there; hence, where the court was asked to enter a declaratory judgment touching the validity of a lease, which depended upon whether or not a testament

ly exercised, it declined jurisdiction, as the

validity of the lease was a matter to be determined by the court of common pleas, whose jurisdiction would not be affected by the fact that its validity would depend upon whether the power had been properly exercised.

If an administrator makes sale of real estate in pursuance of an order of court, ordinarily such a fact should be made part of the record at the audit. Consid-ary power of appointment had been properering the lapse of seventy-eight years since the death of the testator, if an order of court was obtained in this estate for the sale of real estate, it is an extraordinary and unusual proceeding, and there was imposed upon the accountant a higher duty to place upon this record in detail the proceeding by which the sale was made. In fine there is lack of prep-18, 1923, P. L. 840, as such judgment if enaration here which results in delay in the adjudication of this estate.

Where the court in which the petition is

filed is without power to enforce the declaratory judgment sought, it may refuse to

enter it under section 6 of the act of June

tered would not terminate the controversy. Petition for declaratory judgment and answers thereto.

It is the duty of a fiduciary who has filed his account which comes before the court for audit and distribution, particularly in the case of a sale of real estate, to place upon the record at the time of the audit every essential fact to show that he had authority to make the sale: torney-General, for Commonwealth, ami

because it has been discovered that accountants have made sale of real estate without authority in law, or by virtue of the will, or order of court. It follows, therefore, accounts containing the proceeds of the sale of real estate should not be confirmed unless the authority herefor is affirmatively shown.

And now, April 28, 1924, confirmation of the account is refused.

O. C. of

Conlen, Acker, Manning & Brown and James Arthur Ewing, for petitioner. William J. Conlen, Special Deputy At

cus curiae.

Sheldon F. Potter, for Robert and Mary Davison.

Tustin & Wesley, for Blanche H. Reed, Dorothy Reed and Helen Reed. John Hemphill, for Achille Olivieri,


Gest, J., April 4, 1924.-This is a petition by the substituted trustee, under the will of Catharine A. Duff, praying the Philadelphia Co. court to declare the rights and legal relations of all parties in interest respecting certain real estate of the late Catharine A. Duff, No. 129 North Fifteenth Street, under the provisions of the Act

Duff's Estate

Declaratory judgments - Jurisdiction of June 18, 1923, P. L. 840, known as the Uniform Declaratory Judgments Act.

of orphans' court-Uniform Declaratory Judgments Act of June 18, 1923, P. L. 840.

It appears from the pleadings that Catharine A. Duff, being so seized of the real estate in question, died in 1882, leavThe Uniform Declaratory Judgments Act ing a husband and a daughter, Catharine of June 18, 1923, P. L. 840, contemplates the A. Duff, Jr., and by her will devised all solution of a real controversy between adverse parties, and the courts are not required her estate to her executor, in trust to to answer abstract propositions of law or permit her husband to receive the rent moot questions which are merely academic. of the real estate for his life, and after The act does not confer on the courts juris

diction to advise fiduciaries in the discharge his death (which occurred in 1888), in

trust for the same uses as she declared ment given her by the will of her mother Catharine A. Duff, Sr., and if so,

with respect to her personal estate, and in trust as to her personal and mixed estate, to pay the income to her daughter Catharine for life, and at her death, for the use of such persons or person as her said daughter might by her last will, attested by two witnesses, give, devise, limit or appoint, and in default of appointment, then to the children and isuue of her daughter. The will contained no remainder over in default of issue. Cath


(c) In whose favor has the said Catharine A. Duff, Jr., appointed said premises?

Achille Olivieri, and the option contained (d) Is the lease of said premises to therein, valid and binding on the heirs of either Catharine A. Duff, Sr., or Catharine A. Duff, Jr.?

(e) Has Achille Olivieri, the said tenant, any right of possession to said premises or any estate therein?

(f) In what class of persons, either devisees, heirs or next of kin of either Catharine A. Duff, Jr., or Catharine A. Duff, Sr., is the title to said premises

now vested?

ance for the Commonwealth and filed a

arine A. Duff, Jr., in 1915, executed a lease of the premises in question to Achille Olivieri for a term of ten years, beginning February 1, 1910, at $30 a month, and after five years, at $40 a month, the lease containing an option in favor of the tenant to purchase the proTo this petition several answers were perty for $20,000. Catharine A. Duff, Jr., died in 1920, unmarried and without filed. The answer of Olivieri originally issue, leaving a will, attested by two wit-raised several objections to the constitunesses, in which she gave numerous spetionality of the Act of June 18, 1923, P. cific and peculiary legacies, and without 840, and the argument at the first referring to her power of appointment hearing of the case was confined to this under her mother's will, mentioned point. Subsequently the associate counmises No. 129 North Fifteenth Street in sel for the petitioner entered an appearterms of individual or personal ownership, reaffirmed the lease and option to learned and elaborate brief as special depurchase, and provided that it the tenant puty attorney general. We do not think should purchase it at $20,000, the prothat the attorney general is at all conceeds should be paid and distributed in cerned in the case, as the 11th section of a certain manner. By a codicil, unwit- the act, referring to him, confines his innessed, the testatrix declared her will to terest to cases that involve the validity of be in exercise of the power of appoint-a municipal ordinance or franchise which ment granted under her mother's will, is alleged to be unconstitutional, but we appointed executors and trustees, and have considered the learned counsel as gave them the power to sell her real estate. The will contained no general residuary bequest or devise. Achille Olivieri is now in possession of real estate under the lease, and while he has not formally exercised his option to purchase, has indicated through his counsel his intention to do so before the expiration of the lease on February 1, 1926.

The petition for a declaratory judgment propounds the following questions

to the court:

(a) What title or estate did Catharine A. Duff, Jr., have in said premises, to wit, No. 129 North Fifteenth Street, Philadelphia?

(b) Has Catharine A. Duff, Jr., properly exercised the power of appoint

acting simply as amicus curiae, and, needless to say, it gave the court great pleasure to listen to his argument in that capacity. However, at the second argument of the case, counsel for Olivieri withdrew his objections to the constitutionality of the act, and, as we are of opinion that the petition should be dis

missed for other reasons, it is not necesthat in what follows we assume its consary for us to consider that question, so stitutionality.

The Uniform Declaratory Judgments Act is an innovation in our jurisprudence, as heretofore it has always been considered requisite in our legal procedure that the courts should be called upon to decide only those questions which arise in actual litigation. The legisla

ture, however, in its last session, has does not exist. There are, indeed, ceradopted this Uniform Declaratory Judg-tain cases where a declaration of rights ments Act, which follows similar procedure or identical acts in some foreign jurisdictions and in several states of this Union. And we note that in sections 12 and 15 the legislature, having declared its purpose to be remedial, has enjoined the courts to construe and administer the act liberally and to interpret and construe it so as to effectuate its general purpose, viz, to make uniform the law of those states which enact it and harmonize, as far as possible, with federal laws and regulations on the subject of declaratory judgments. How far this latter injunction may be within the province of the legislature we need not consider at the present time, but we may remark it it difficult to see why, in matters of legal procedure, it is desirable for us to assimilate the practice in Pennsylvania to that of Kansas or Florida, however appropriate such uniformity may be with respect to negotiable instruments, warehouse receipts and the like. For some purposes it may be desirable to dress in ready-made uniforms, but it is better for most men to be measured for their clothing and have their coats to suit their individual requirements.

We deem it proper in this, the first case presented to us under this new statute, to consider its provisions somewhat at length. From our examination, we are of opinion, in the first place, that the act is clearly not intended to permit, much less require, the courts to answer abstract propositions of law or moot questions which are merely academic. This much appears to be conceded by every one. Nor do we think that it is intended to confer on the courts, that jurisdiction to advise fiduciaries in the discharge of their duties, which, although it may obtain in some states, has never been allowed in Pennsylvania. A mere advisory opinion upon an abstract question is obviously not a judgment at all. The act contemplates the solution of a real controversy between adverse parties. In the third place, we are of opinion that the act, which is professedly remedial, should not be held to operate where the evil intended to be remedied

may be advantageous, as, for instance, where the parties to a contract, before performance or breach by either of them, may have it construed by the court in order to have their rights determined in futuro, a case specially provided for in section 3. There and in other similar conditions the statute provides a remedy where none previously existed. Many procedural difficulties that confront fiduciaries in other jurisdictions as to the rights of creditors, legatees, next of kin, etc., and especially arise in the construction of wills, do not occur with us, for such questions can readily be solved under our own well established practice of having the fiduciary file an account, at the audit of which a speedy settlement may be had by an adjudication, as was pointed out in Morton's Estate, 201 Pa., 269; Jacoby's Estate, 201 Pa., 442, and other cases. This practice is far superior to the originating summons in England, as we may illustrate by a reference to such cases as Re Timson, 1916, 2 Ch. 362, which is frequently cited as an example. See article by Professor Borchard, 28 Yale Law Jour., 128. question there simply concerned the scope of the word "issue" in a bequest, in the most expeditious manner by the and would be disposed of by this court adjudication of the trustee's account.


In the fourth place, and this particularly affects our decision of the present case, we are of opinion that the act was not intended to extend or in any wise affect the purisdiction of this court so as to bring within it cases or a class of cases not previously cognizable here. the very first line of its 1st section the act distinctly refers to the respective jurisdictions of the courts and there is nothing whatever in any section of it to confer any jurisdiction on the orphans' court which previously belonged to the common pleas, and, indeed, if there were, this act would be unconstitutional, inasmuch as its title would be defective. We have above recited the questions which this petition for a declaratory judgment propounds to be answered by this court, and it is apparent that they all concern

the title of Achille Olivieri to the real es- tion, but it would seem to us that this state No. 129 North Fifteenth Street un- procedure would not befit the dignity of der the lease made to him by Catharine either the court of common pleas or of Duff, Jr., the validity of the lease and this court, nor would it facilitate the orhis right to the possession of the said derly administration of justice. The premises thereunder. These matters are only court which can enforce the right determinable in the court of common should be the one which declares it, and pleas and not in this court. The mere as, under section 6, the court may refuse fact that the validity of the lease may to enter a declaratory judgment where depend upon the construction of the wills such judgment, if entered, would not terof Catharine Duff, Sr., and Catharine minate the controversy, we are of opinDuff, Jr., or either of them, does not give ion that, for this additional reason, we to this court jurisdiction. See Hazard's should not assume a jurisdiction that is Estate, 253 Pa., 447; Todd's Estate, 253 not clearly vested in us. Pa., 622; Ludwick's Estate, 255 Pa., 548, which mases, it seems to us, are conclusive, though, whether the appropriate remedy is by ejectment or in equity, we express no opinion.

The petition of the Integrity Trust Company, trustee under the will of Catharine A. Duff, is, therefore, dismissed without prejudice to the rights of the parties to proceed elsewhere.

See also Public Defense Association V. County of Allegheny, 72 P. L. J. 337.

C. P. of

Delaware Co.

Chester Auto Radiator Company v. Sam Cardile

Justice of the peace-Appeal—Striking off appeal-Appeal nunc pro tunc.

not be stricken off.

Our conclusion is enforced by the further consideration that, even if we should assume jurisdiction to render a declaratory judgment upon the rights of the parties, we would not be able to enforce it, as this court lacks the appropriate machinery. True, the act refers to cases where no further or consequential relief is claimed, Ungaro's Will, 102 Atl. Repr. 244, and for application to the court having jurisdiction to grant the relief, but the power, if we have it, to pronounce Where failure to appeal from a judgment a merely declaratory judgment without of the justice of peace within the statutory the power to grant consequential relief period, is in consequence of an act of the should be exercised with the greatest cir- magistrate, an appeal may be allowed nunc pro tunc if asked for within a reasonable cumspection. It was indeed suggested time, and if the magistrate of his own mothat if, after we had entered a declaration permits an appeal to be taken, it will tory judgment against his alleged right, Olivieri should refuse to surrender possession (and we have no reason to assume that he would not so refuse), we might attach him for contempt, but we do not think we would have that right. And if our decree were used as the basis on which a court of common pleas should Broomall, J., May 12, 1924.-The be asked to issue a writ of habere facias plaintiff obtained a judgment against the possessionem, that court would be ob- defendant before a magistrate on Januliged, under section 8, first to determine ary 16, 1923. The time for the appeal that "the application is suffifficient," and expired on February 5, 1923. The magthen, on "reasonable notice, to require istrate advised the defendant that the any adverse party whose rights have time for an appeal would expire on Febbeen adjudicated by the declaratory ruary 15, 1923. Accordingly on Februjudgment or decree to show cause why ary 10, 1923, the defendant appealed and further relief should not be granted, complied with the necessary requireforthwith." We are not called upon to ments of the law. The appeal was filed determine the precise effect of this sec- in this court on February 14, 1923. On

Rule to show cause why appeal should
not be stricken off. Rule dismissed.
John A. Poulson, for Rule.
John M. Broomall, Contra.

February 23, 1923, the plaintiff took this Common Pleas of York County, Pa. rule to show cause why the appeal should Refused. not be dismissed and stricken from the record.

It sufficiently appears that the default of the defendant to appeal in time was attributable to the mistaken advice of the

J. E. Vandersloot, Esq., for the plaintiff.

George S. Love, Esq., for the defen

magistrate. It has long been an estab- dant and the motion.
lished principle that where the default to
appeal is in consequence of the act of
the magistrate, an appeal may be allowed
nunc pro tunc, if asked for in reasonable
time; McIlhaney vs. Holland, III Pa.
634. Here the magistrate allowed the
appeal, apparently recognizing that the
default of the defendant was ascribable
to him.

Ross, J., February 27th, 1924This action is in trespass. The action of defendant is as provided by the 21st section of the Practice Act 1915, P. L. 463, when the pleading does not conform with the requirement of the Act.

It therefore follows that plaintiff's rule to show cause why the appeal should not be dismissed, cannot be supported,

and therefore its rule is dismissed.

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If the allegations of fact are not clear enough to enable the defendant sufficiently to prepare evidence to meet them at the

trial, he may apply for a rule for a more specific statement.

Under the Act of May 23rd, 1923, P. L.

325, amending the Practice Act of 1915, a

motion to strike off a plaintiff's statement

made more than 15 days after the

copy of the statement was served on the

defendant or his counsel, is too late to be effective.

A copy of a motion to strike off a plaintiff's statement must be served on the plain

tiff or his counsel.

In the case of Samuel W. Hershey vs. York Water Company, 229 August Term, 1922, which was an action in trespass, we filed an opinion, on the 15th day of January, 1923 (see 36 York Legal Record, 161). We refused to strike from the record the plaintiff's statement, for the reason that its allegations could have been met at the trial by the defendant, by an affirmation or denial.

The Act does not authorize a judgment by default for want of an affidavit of defense in cases of tort: Parry v. First National Bank of Lansford, 270 Pa. 556.

"Under the provisions of section 13 of the Practice Act 1915, it is not necessary to file an affidavit of defense in an action of trespass. The first clause of the 13th section recites number of facts, which the averments of the declaration may be considered to establish, if they are not denied by an affidavit. Any other defense may properly be heard at the trial of the action, even where no affidavit of defense is filed": Wilson v. Adams Express Co., 72 Pa. Supr. 384; Leonard v. Coleman, 273 Pa. 62-65.

It is not necessary to analyze the plaintiff's statement in the light of the questions of law raised, for we think the allegations are all made with sufficient certainty and particularity to enable defendant to meet them at the trial. If, Motion to strike off the plaintiff's however, the allegations of fact are not statement in W. A. Prentzel, Trustee, clear enough to enable defendant to Coast-to-Coast Grocery Stores Company, sufficiently prepare evidence to meet a Bankrupt, v. Jacob Snyder, No. 43 them at the trial, a rule for more specific October Term, 1923, in the Court of statement may be applied for: King

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