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Q. S. of

York Co. "Sixth. That the residents in the viSpringettsbury Township Road

cinity of said road have established a community bus line and no longer use the passenger service of said Pennsyl

vania railroad. RoadsTerminus at railroad station

"Seventh. That the average width of --Necessity for road-Width of road. public roads in said Springettsbury A terminus of a public road may be at a width of the proposed public road is un

Township are not over 20 feet and the railroad station.

The decision of viewers appointed to view reasonable and to build and maintain a a proposed public road that there is neces- road of such width will be a burden on sity for a road is conclusive on exceptions to their report, unless plain error of judgment

the township. is established by testimony. A public road of a width of fifty feet is

"Eighth. That to open and maintain not unlawful, and exceptions to a road re- a public road of a width of 50 feet will port on the ground that the road was laid out with a width of fifty feet were dismissed. cause all other sections of the township

to demand wider roads and such an exExceptions to the report of viewers pense will bankrupt the township. appointed by the Court of Quarter Sessions of York County, Pa., to view a pro-lizing township supervisors to open and

“Ninth. That there is no law authorposed road in Springettsbury Township, maintain a public road of a width of 50 No. 3, January Session, 1922. Excep

feet. tions dismissed. d. W'. Herrmann, for exceptions.

"Tenth. That to open said proposed

road is only the beginning of a campaign Spencer D. I'areheim, contra.

to establish a number of such roads of a Ross, J., March 1oth, 1924.-The Small community, known as the East

width of 50 feet for the benefit of the

— viewers were regularly appointed and York Tract, at the expense of a whole made their report to this court.

township.” The following exceptions were filed to

The petition for appointment of viewthe report, which, after due considera

ers recited that the viewers were aption, we now answer:

pointed to view and lay out a public road “First. That one terminus of said or highway, to begin at a point in a cerroad is not in a public highway or place tain state road, known as the Lincoln of public resort.

Highway, and extending thence to a

point in the right of way of the Pennsyl“Second. That said terminus

con- vania railroad, at a station known as nects with a railroad track at grade, "Rockburn" station, the said point of bewhich is against the policy of the Com-ginning being 987 feet eastwardly from monwealth of Pennsylvania.

the centre of the first public road lead“Third. That there is no necessity ing northward from the Lincoln Highfor said road because there is not much way, east of the City of York, and the travel on the same.

said point of ending being 1326 feet

eastwardly from the said public road “Fourth. That there is such small leading northwardly from Lincoln Hightravel only on one-half of said road way, all in the Township of Springettsleading from the Lincoln Highway as the bury. one terminus thereof.

The viewers report that there is occa"Fifth. That the other one-half of sion for a public road to be opened and said road leading to and terminating at laid out between the termini described in the right of way and tracks of the Penn- the order of the court; that the same is sylvania railroad from York to Hellam, necessary for a public road; that one of provides an outlet only for a private the termini named in the order of the siding.

court is in a public highway and the


other terminus at a public station and ceptions are all dismissed, and the republic siding of the Pennsylvania Rail- port of the viewers in this case is finally road Company; and that the said road is confirmed. one necessary for public travel.

That report is sufficient in law to sustain itself as to the legality of the ter- 0. C. of

Berks Co. mini.

Wanner Estate “It is a settled rule of the state that a public road must begin and end in a public highway or place of public resort": Decedents' estates--Collateral inheriMiller's Road Case, 9 S. & R. 35; West Pikeland Road, 63 Pa. 47.

ience tax on life estate. "The 'necessary resort' of the statute tate is payable by the trustee out of the prin

The collateral inheritance tax on a life esmay be taken to be a place of public re- cipal of the fund, but must be restored to the sort where men are in the habit of fund out of the first income received. meeting on their lawful business, or in

Exceptions to account. pursuance of their proper duties": Schuylkill River Road, 19 Pa. Supr. Ct.

('. 6. Derr, for the accountant. 370, 377, 378.

J. B. Stevens, for Harvey H. RotherIt cannot be successfully argued that mel, for exceptant. a railroad station on the Pennsylvania

Schaeffer, P. J., Orphans' Court, sperailroad is not such a public resort as the cially presiding, October 27, 1923.— The law contemplates.

account is before the court on petition The first and second exceptions are of Harvey H. Rothermel, the cestui que dismissed.

trust, citation, answer and the order of

the court, directing the trustee to file the The third, fourth and fifth exceptions account. It contains the principal fund are dismissed because the road viewers and income. In the distribution, these have decided and reported that the pub- funds will be kept separate. lic road is necessary, and their decision is conclusive on this court unless plain

Exceptions to the account have been error of judgment is established against filed by the cestui que trust, alleging that them. This was not done, and there was the accountant erred in the payment of no attempt to show that the road was

the collateral inheritance tax, amounting not necessary.

to $74.47, out of the principal fund, and

that the credits taken for the costs of filThe sixth and seventh exceptions have ing the account are improper and cannot no merit either in fact or law to control be allowed. or sustain the locating or opening of a public road. The necessity of public

It appears that on February 27, 1906, roads is such as the general public re- the sum of $1943.62 was distributed to quire. These exceptions are therefore the trustee, subject to the collateral indismissed.

heritance tax, and the said amount was

paid to the trustee accordingly. SubseThe eighth and tenth exceptions are quently, on August 9, 1906, the value of dismissed, because they are too problem- the said cestui que trust's life estate, for atic and cannot now be sustained by any collateral inheritance tax purposes, was process of reasoning.

fixed at $1489.35, and the said trustee

paid the collateral tax thereon, amountThe ninth exception must be dismissed ing to $74.47. This tax was paid out of because it is a misstatement of the ex- the said principal of $1943.62. pressed law of the state. proved April 6, 1921, P. L. III.


Thereafter, the trustee paid to the ces

tui que trust the semi-annual interest on And now, March 1oth, 1924, the ex- the diminished principal, that is, on the

See act ap

said sum of $1943.62 less the amount testing, and also in the absence of any paid for collateral inheritance tax. The complaint by those who will eventually cestui que trust received the income reg- get the fund. ularly, together with statements showing the administration of the fund, up to

He who seeks equity must do equity, 1922, when the cestui que trust com

and it would be inequitable, to say the plained to the trustee about the payment least, to punish the trustee for paying the of the collateral tax out of the principal debt of the cestui que trust, and for actfund instead of deducting it from the in-ing in good faith and with a purpose to come.

help and assist him. If the cestui que

trust insists that the $74.47 be restored The trustee, thereupon, discontinued to the principal fund, it must be done to pay the said interest to the cestui que out of his income. He had the use of trust, retaining the same for replace the money, and, consequently, should pay ment of the amount so to be paid for the it back if he feels the fund should be recollateral inheritance tax.

stored to its original amount. The matter stood thus for a short That the trustee could pay the tax out time, when, at a meeting between the of the principal fund, and reimburse itcestui que trust, his counsel and the trus- self out of the first income received, is tee, it was agreed that the trustee should well recognized, for, in the estate of S. deduct from each semi-annual interest J. Christian, 18 Phila. 32, it was decided installment the sum of $5.00, by way of by Judge Ashman that "When an estate restoring to the principal fund the has been left to a collateral relative or a amount of the tax, which arrangement stranger for life, with remainder over, would make the restoration complete in the inheritance tax on the life interest is about seven and a half years; and that payable primarily out of the corpus, but the trustee should at once pay to the ces- I must be refunded out of the first income tui que trust the interest accrued and received." which had been retained as aforesaid, deducting the sum of $5.00, first install

After the trustee paid the collateral ment in pursuance of said agreement.

tax out of the principal fund, he should

have withheld the first income and added This adjustment was apparently satis-it to the fund. He, however, paid the factory to both sides, and it was not un-income to the cestui que trust, who thus til March, 1923, when the cestui que received the benefit of it, and now comtrust again objected to the settlement, plains because it was paid to him. If the and came into court and asked for a ci- principal is to be restored at this time, tation on the trustee to file an account, it must be done out of the cestui que so that the dispute could be legally de- trust's income. "Where moneys have termined.

been paid to beneficiaries, as income The complaint now is that the trustee

which was really principal, the future should have withheld the tax out of the accruing income will be withheld until income, instead of paying it out of the the over payments are repaid to the es

tate:” Est. of William Richardson, 12 principal. There can be no doubt that the tax was paid out of the principal and not replaced immediately from the first Again, the arrangement made between income, in order to accommodate the the parties that the sum of $5.00 should cestui que trust, and why he should now be deducted from every semi-annual incomplain, we fail to see. In other words, stalment of interest and added to the he finds fault with the conduct of the principal, was made in good faith and trustee for having been generous with with a full understanding of all the facts him, in not appropriating the income for in controversy, and, therefore, will be the payment of the tax. This, indeed, is upheld. On the basis of this undervery unusual, in view of the fact that he standing of the parties, which was not accepted the income of the reduced prin- denied at the hearing and which was cipal for almost seven years without pro-'acted upon, as shown by the items of

Phila. 32.

credit for the first and second instal- Shafer, P. J., January 10, 1924.— The ments of $5.00 each, this controversy action is founded upon a contract of emwas settled, and hence there was no oc- ployment of the plaintiff by the defendcasion for citing the trustee to file an ac- ant, at a weekly salary, and is evidenced count.

by a written contract. The exceptions to the credits for costs and fees must, therefore, also be dis

The affidavit of defense elaborately missed, because the trustee was not at sets out a parole contemporaneous agreefault here, and, under the Fiduciaries ment alleged to have been made at the Act of June 7, 1917, P. L. 447, Sec. 46, time the contract was signed, modifying it has the right to file its account trien- it so that no action would lie


it at nially from the date of its appointment, this time. The affidavit further shows and to have the same audited and con- that the plaintiff herein brought an acfirmed to date by the court. In filing tion against the defendant herein at No. such account, costs and fees necessarily A-1132 of 1921, in the County Court of accrue and must be paid, either out of Allegheny County, for some of the wages the principal or income.

now claimed under this contract, and

that judgment was rendered therein for The exceptions are dismissed, and the the defendant, and it is alleged that the account is confirmed. Distribution of the action was in substance the same cause principal sum will be to the trustee, for of action as is involved in this suit and the continued administration of the trust. the record of the county court is made The income, subject to the deduction of part of the affidavit of defense. any agreed-upon instalments which may be due of collateral inheritance tax,

We do not deem it necessary to enter which as aforesaid has been paid out of the principal fund, will be distributed to upon a discussion of the alleged parole the cestui que trust.

agreement, which was the principal matter argued, for the reason that this part of the affidavit of defense which alleges an adjudication of the matter in the

county court is, as it stands, a sufficient C. P. of

Allegheny Co. answer to the plaintiff's claim. The Hulsman v Brookline District

plaintiff has cited in his brief a number

of cases as to the effect of judgments in No. 506, Etc.

suit for installments of salary. These are Allen v. The Collery Company, 196

Pa., 512; Allen v. International Text Res adjudicata--Salary-Payments Book Co., 201 Pa., 579, and Stradley v Separate actionsConclusive as to sub- The Cement Co., 228 Pa., 108. These sequent installments.

cases all hold that if one who is hired at A rule for judgment for want of a suffici- suit for installments as they fall due and

a salary payable in installments, brings a affidavit of defense

discharged, where the action was based on an agreement recovers a judgment, this does not preto pay a salary in installments and it ap- clude him from bringing a suit for the peared that a previous action on another installment had been decided in favor of de installments which fall due later, but, on fendant. This was conclusive as to subse- the contrary, establishes his right to requent installments and barred plaintiff's recovery.

cover the subsequent installments, unless Sur rule for judgment for want of a something new should appear. In none sufficient affidavit of defense. Dis- of them, however, was the suit brought charged.

on the earlier installments ended by

judgment in favor of the defendant, and W'. G. Negley, for plaintiff.

that judgment is just as conclusive for Ralph H. Frank, for defendant.

the defendant as to subsequent install

ments as one for the plaintiff would have Before Shafer, P. J., Ford and Doug- been for him. The rule is therefore dislass, JJ.




Supr. c.

of Pa. that year the name of the York Metal &

Alloy Company was changed to the AlNorth v. York Metal Alloys Co.

loys Corporation, and on September 1, (No. 2)

1920, by deed the Alloys Corporation

conveyed to the York Metal & Alloys Employer and employee-Sale of as- Company all its plant, land, building,

, sets and assumption of contracts-Sim- business assets and property. The Al

machinery and equipment, and all its

ilarity of names.

loys Company, on September 1, absorbed Where a company having a contract for two other companies, and took possession the employment of one for a fixed time and of all their business. It was agreed beat a definite salary, transferred its business and assets to another corporation of a simi- tween the conipanies that the last named, lar name, which agreed to assume the lia- the appellant, would assume all the formbilities, obligations and contracts of the first ser's liabilities, obligations and contracts, corporation, including the contract with the employee mentioned, and the employee, un- including the agreement with the plainacquainted with the transfer, continued his tiff. On October 20, 1920, plaintiff rework with the second company which for some time accepted his services, a verdict ceived a written communication informfor the employee and judgment thereon ing him defendant desired to change the against the latter company for damages for his dismissal before the expiration of the agreement so that, instead of one year's term of employment was sustained. notice to quit be given to him, three

Questions of the indentity of parties, turn- months notice thereafter would suffice. ing on similarity of names, and the same officers of corporations, when the testimony

Plaintiff declined to agree to this change is conflicting, must be left to the jury. and on December 31, 1920, a notice in

Appeal to the Supreme Court of Penn- writing was given stating his services sylvania by the defendant in H. B. Worth would cease on March 15, 1921. All revi York Metal & Alloys Company, No. lations between the parties having ended, 65, January Term, 1924, from the judg- plaintiff sued for the unpaid salary for ment entered in the Court of Common the balance of the term, recovering a Pleas of York County, in No. 106, April judgment. Term, 1922.

Appellant contends that as this was a The opinion of Ross, J., dismissing contract for personal services of a highmotion for a new trial and for judgment

ly skilled nature, the new company could n. 0. v. is reported in 36 York I. R., 177. Sonal services without his consent: it

not compel appellee to render such perAffirmed.

follows appellant was not compelled to Jacob E. W'eaver, Donald H. L'ost and retain appellee longer. That appellee's Cocliran, Williams & Kain for appel- services formed no part of the assets lants,

conveyed to the appellant in consideraNiles & Veff for appellee.

tion of which appellant assumed to be

bound by the selling corporation's writKephart, J., July 8, 1924.--Plaintiff's ten obligation to plaintiff. Appellee bestatement avers a contract, partly oral ing a stranger to the contract between and partly written, whereby plaintiff, in the buying and selling companies, there 1917, was employed to take charge of a is no right of action against appellant. chemical and research laboratory at a The difficulty with these propositions salary of $5,000 a year, to serve for one is that Dr. North was not acquainted year, and thereafter until notice was giv- with the transfer between the two comen at least one year in advance that the panies, and continued his work with the services were no longer desired.

In second company as theretofore. 1918, the York Metal & Alloy Company, pellant desired to sever relations with the other party to the contract, notified him, as now stated, and could lawfully plaintiff that thereafter this salary would do so, notice was bound to be given of be increased to $6,000 a year; no other its reluctance to continue him in employchange was made or suggested in the ment. Having accepted his employment terms of the employment. Dr. North after the sale was affected, and recognizcontinued in service until 1920. During 'ed the contract to changing its

If ap


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