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

The act of June 18, 1923, P. L. 840, does ll. Farquhar and Beatrice l'arquhar not extend, or in any wise affect, the jurisGarton.

diction of the orphans' court, so as to bring If an administrator makes sale of real viously cognizable there; hence, where the

within it cases, or a class of cases, not preestate in pursuance of an order of court, court was asked to enter a declaratory judgordinarily such a fact should be made ment touching the validity of a lease, which

depended upon whether or not a testamentpart of the record at the audit. Consid- ary power of appointment had been properering the lapse of seventy-eight years ly exercised, it declined jurisdiction, as the since the death of the testator, if an or

validity of the lease was a matter to be determined by the

common pleas, der of court was obtained in this estate whose jurisdiction would not be affected by for the sale of real estate, it is an extra- the fact that its validity would depend upon

whether the power had been properly exerordinary and unusual proceeding, and there was imposed upon the accountant Where the court in which the petition is a higher duty to place upon this record filed is without power to enforce the declain detail the proceeding by which the sale ratory judgment sought, .it may refuse to

enter it under section 6 of the act of June 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 tered would not terminate the controversy. adjudication of this estate.

Petition for declaratory judgment and It is the duty of a fiduciary who has

answers thereto. filed his account which comes before the court for audit and distribution, particu- Conlen, Acker, llanning & Brown and larly in the case of a sale of real estate, James Arthur Ewing, for petitioner. to place upon the record at the time of

William J. Conlen, Special Deputy Atthe audit every essential fact to show that he had authority to make the sale: torney-General, for Commonwealth, amibecause it has been discovered that ac

cus curiae. countants have made sale of real estate Sheldon F. Potter, for Robert and without authority in law, or by virtue Mary Davison. of the will, or order of court. It follows, therefore, accounts containing the

Tustin & Wesley, for Blanche H. proceeds of the sale of real estate should Reed, Dorothy Reed and Helen Reed. not be confirmed unless the authority

John Hemphill, for Achille Olivieri, herefor is affirmatively shown.

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

Gest, J., April 4, 1924.—This is a petition by the substituted trustee, under the

will of Catharine A. Duff, praying the O. C. of

Philadelphia Co. court to declare the rights and legal re

lations of all parties in interest respectDuff's Estate

ing certain real estate of the late Catharine A. Duff, No. 129 North Fifteenth

Street, under the provisions of the Act Declaratory judgments - Jurisdiction of June 18, 1923, P. L. 840, known as

the Uniform Declaratory Judgments of orphans' court-Uniform Declaratory Act. Judgments Act of June 18, 1923, P. L. It appears from the pleadings that

Catharine A. Duff, being so seized of the 830.

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 with respect to her personal estate, and Catharine A. Duff, Sr., and if so, in trust as to her personal and mixed

(c) In whose favor has the said Cathestate, to pay the income to her daughter ariné A. Duff, Jr., appointed said preCatharine for life, and at her death, for mises ? the use of such persons or person as her said daughter might by her last will, at- Achille Olivieri, and the option contained

(d) Is the lease of said premises to tested by two witnesses, give, devise, therein, valid and binding on the heirs limit or appoint, and in default of ap- of either Catharine A. Duff, Sr., or Cathpointment, then to the children and isuue

arine A. Duff, Jr.? of her daughter. The will contained no remainder over in default of issue. Cath

(e) Has Achille Olivieri, the said tenarine A. Duff, Jr., in 1915, executed a ant, any right of possession to said pre

, lease of the premises in question to

mises or any estate therein ? Achille Olivieri for a term of ten years, devisees, heirs or next of kin of either

(f) In what class of persons, either beginning February 1, 1910, at $30 a Catharine A. Duff, Jr., or Catharine A. month, and after five years, at $40 a month, the lease containing an option in Duff, Sr., is the title to said premises favor of the tenant to purchase the pro

now vested? perty for $20,000. Catharine A. Duff,

To this petition several answers were 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 spe

tionality of the Act of June 18, 1923, P. cific and peculiary legacies, and without L. 840, and the argument at the first referring to her power of appointment hearing of the case was confined to this

point. Subsequently the associate counmises No. 129 North Fifteenth Street in sel for the petitioner entered an appearterms of individual or personal owner

ance for the Commonwealth and filed a ship, 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 pro

that 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 es- acting simply as amicus curiae, and, tate. The will contained no general re

needless to say, it gave the court great siduary bequest or devise. Achille Oli- pleasure to listen to his argument in that vieri is now in possession of real estate capacity. However, at the second arguunder the lease, and while he has not

ment of the case, counsel for Olivieri formally exercised his option to pur

withdrew his objections to the constituchase, has indicated through his counsel tionality of the act, and, as we are of his intention to do so before the expira- opinion that the petition should be distion of the lease on February 1, 1926.

missed for other reasons, it is not necesThe petition for a declaratory judg- sary for us to consider that question, so

that ment propounds the following questions

stitutionality. to the court:

The Uniform Declaratory Judgments (a) What title or estate did Catharine Act is an innovation in our jurispruA. Duff, Jr., have in said premises, to dence, as heretofore it has always been wit, No. 129 North Fifteenth Street, considered requisite in our legal procePhiladelphia?

dure that the courts should be called up(b) Has Catharine A. Duff, Jr., pro-on to decide only those questions which perly exercised the power of appoint-larise in actual litigation. The legislature, 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 pro- may be advantageous, as, for instance, cedure or identical acts in some foreign where the parties to a contract, before jurisdictions and in several states of this performance or breach by either of them, Union. And we note that in sections 12 may have it construed by the court in and 15 the legislature, having declared order to have their rights determined in its purpose to be remedial, has enjoined futuro, a case specially provided for in the courts to construe and administer the section 3. There and in other similar act liberally and to interpret and con- conditions the statute provides a remedy strue it so as to effectuate its general where none previously existed. Many purpose, viz, to make uniform the law of procedural difficulties that confront fiduthose states which enact it and harmon- ciaries in other jurisdictions as to the ize, as far as possible, with federal laws rights of creditors, legatees, next of kin, and regulations on the subject of decla- etc., and especially arise in the construcratory judgments. How far this latter tion of wills, do not occur with us, for injunction may be within the province of such questions can readily be solved unthe legislature we need not consider at der our own well established practice of the present time, but we may remark it having the fiduciary file an account, at it difficult to see why, in matters of le- the audit of which a speedy settlement gal procedure, it is desirable for us to as- may be had by an adjudication, as was similate the practice in Pennsylvania to pointed out in Morton's Estate, 201 Pa., that of Kansas or Florida, however ap- 209; Jacoby's Estate, 201 Pa., 442, and propriate such uniformity may be with other cases. This practice is far superrespect to negotiable instruments, ware- ior to the originating summons in Enghouse receipts and the like. For some land, as we may illustrate by a reference purposes it may be desirable to dress in to such cases as Re Timson, 1916, 2 Ch. ready-made uniforms, but it is better for 362, which is frequently cited as an exmost men to be measured for their cloth- ample. See article by Professor Boring and have their coats to suit their in-chard, 28 Yale Law Jour., 128. The dividual requirements.

question there simply concerned the We deem it proper in this, the first scope of the word “issue” in a bequest, case presented to us under this new sta- in the most expeditious manner by the

and would be disposed of by this court tute, to consider its provisions somewhat adjudication of the trustee's account. at length. From our examination, we are of opinion, in the first place, that the In the fourth place, and this particuact is clearly not intended to permit, larly affects our decision of the present much less require, the courts to answer case, we are of opinion that the act was abstract propositions of law or moot not intended to extend or in any wise afquestions which are merely academic. fect the purisdiction of this court so as This much appears to be conceded by to bring within it cases or a class of casevery one. Nor do we think that it is in- es not previously cognizable here. In tended to confer on the courts, that jur- the very first line of its ist section the isdiction to advise fiduciaries in the dis-act distinctly refers to the respective charge of their duties, which, although jurisdictions of the courts and there is it may obtain in some states, has never nothing whatever in any section of it to been allowed in Pennsylvania. A mere confer any jurisdiction on the orphans' advisory opinion upon an abstract ques- court which previously belonged to the tion is obviously not a judgment at all. common pleas, and, indeed, if there were, The act contemplates the solution of a this act would be unconstitutional, inasreal controversy between adverse par- much as its title would be defective. We ties. In the third place, we are of opin- have above recited the questions which ion that the act, which is professedly re- this petition for a declaratory judgment medial, should not be held to operate propounds to be answered by this court, where the evil intended to be remedied and it is apparent that they all concern

V.

C. P. of

Delaware Co.

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 or-
his 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 ter-
of Catharine Duff, Sr., and Catharine minate the controversy, we are of opin-
Duff, 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, The petition of the Integrity Trust
which mases, it seems to us, are conclu- Company, trustee under the will of
sive, though, whether the appropriate Catharine A. Duff, is, therefore, dis-
remedy is by ejectment or in equity, we missed without prejudice to the rights
express no opinion.

of the parties to proceed elsewhere. Our conclusion is enforced by the fur

See also Public Defense Association

County of Allegheny, 72 P. L. J. 337. ther consideration that, even if we should assumie jurisdiction to render a declaratory judgment upon the rights of the parties, we would not be able to enforce Chester Auto Radiator Company it, as this court lacks the appropriate

v. Sam Cardile 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 hav

Justice of the peace-- Appeal-Striking jurisdiction to grant the relief, but ing off appeal-- Appeal nunc pro tunc. the power, if we have it, to pronounce a merely declaratory judgment without

Where failure to appeal from a judgment

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 declara- tion permits an appeal to be taken, it will tory judgment against his alleged right, not be stricken off. Olivieri should refuse to surrender pos- Rule to show cause why appeal should session (and we have no reason to as- not be stricken off. Rule dismissed. sume that he would not so refuse), might attach him for contempt, but we

Joli d. Poulson, for Rule. do not think we would have that right.

Jolin Jl. Broomall, Contra. 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

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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.

J. E. Vandersloot, Esq., for the plainIt sufficiently appears that the default tiff. of the defendant to appeal in time was attributable to the mistaken advice of the

George S. Love, Esq., for the defenmagistrate. It has long been an estab

dant and the motion. lished principle that where the default to

Ross, J., February 27th, 1924appeal is in consequence of the act of This action is in trespass. The action the magistrate, an appeal may be allowed of defendant is as provided by the 21st nunc pro tunc, if asked for in reasonable section of the Practice Act 1915, P. L. time; McIlhaney vs. Holland, in Pa. 463, when the pleading does not con637. Here the magistrate allowed the form with the requirement of the Act. appeal, apparently recognizing that the

In the case of Samuel W. Hershey default of the defendant was ascribable

vs. York Water Company, 229 August to him.

an action in It therefore follows that plaintiff's Term, 1922, which was rule to show cause why the appeal should trespass, we filed an opinion, on the 15th not be dismissed, cannot be supported, day of January, 1923 (sce 36 York ,

We refused to and therefore its rule is dismissed.

Legal Record, 161). strike from the record the plaintiff's statement, for the reason that its allega

tions could have been met at the trial C. P. of

York Co. by the defendant, by an affirmation or

denial. Prentzel, Trustee v. Snyder

The Act does not authorize a judg

ment by default for want of an affidavit Practice-Trespass-Plaintiff's state-First National Bank of Lansford, 270

of defense in cases of tort: Parry v. ment-affidavit of defense not required Pa. 556. -Votion to strike off, when too late, of the Practice Act 1915, it is not neces

"Under the provisions of section 13 sertice of copy

sary to file an affidavit of defense in

an action of trespass. The first clause Under the provisions of the Practice Act of the 13th section recites a number of of 1915, P. L. 463, it is not necessary to file an affidavit of defense in an action of facts, which the averments of the dectrespass; and, therefore, judgment for want laration may be considered to establish, of an affidavit of defense can not be taken in such an action.

if they are not denied by an affidavit. If the allegations of fact are not clear Any other defense

may properly be enough to enable the defendant sufficiently heard at the trial of the action, even to prepare evidence to meet them at the trial, he may apply for a rule for a more

where no affidavit of defense is filed": specific statement.

Wilson v. Adams Express Co., 72 Pa. Under the Act of May 23rd, 1923, P. L. Supr. 384; Leonard v. Coleman, 273 Pa. 325, amending the Practice Act of 1915, a motion to strike off a plaintiff's statement

62-65. made

days

It is not necessary to analyze the copy of the statement was served on the plaintiff's statement in the light of the defendant or his counsel, is too late to be effective.

questions of law raised, for we think the A copy of a motion to strike off a plain- allegations are all made with sufficient tiff's statement must be served on the plain- certainty and particularity to enable detiff or his counsel.

fendant 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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