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On May 26, 1924, the plaintiff filed Bill in equity. Exceptions to distribuhis statement, and on the same day ittion. was served on defendants' counsel of

Paul Bedford, for exceptant. record. At the same time a rule of reference was entered under the Act of

McLean, J.-This matter is before the June 16, 1836, P. L. 719, relating to ref-court upon exceptions to schedule of diserence and arbitration. Section 10 of tribution submitted pursuant to order of the Practice Act of 1915 requires that court after notice to creditors. the statement shall be endorsed as therein set forth, but this has not been done,

The facts as disclosed by the excepand for this reason counsel for defend-tions filed are as follows: That upon ant has moved to strike off the same. order duly received from Sagenkahn

Brothers prior to the receivership, the The statement was filed before the petitioner shipped them an invoice of entry of the rule to arbitrate, and this merchandise on Feb. 13, 1923, amounting was sufficient for that purpose, but that to the sum of $182.74, which shipment

, it is not in accordance with the Act of arrived in Wilkesbarre Feb. 19, 1923, 1915. must be conceded. There is no endorsement of any kind appearing 16, 1923, of the receiver, and subsequent

subsequent to the appointment on Feb. upon it. But Section 21 of that act pro- to the date of Feb. 17, 1923, when the vides that, “The court, upon motion, receiver assumed charge and control of may strike from the record a pleading the affairs of Sagenkahn Brothers, and which does not conform to the provis-said merchandise was delivered by the ions of this act, and may allow an carrier on Feb. 20, 1923, to Sagenkahın amendment or a new pleading to be filed upon such terms as it may direct." The Brothers, per J. Johnson, their agent, and objection raised is purely a formal one, kahn Brothers, and thereafter said re

receipted for by said Johnson for Sagenasd does not go to the merits of the conceiver took control of said merchandise. troversy. It can readily be cured by amendment. We think an amendment

It is further conceded by the receiver covering such defect should be allowed that the merchandise referred to in the

. If within ten days such an amendment exceptions, together with other assets of is 'filed, we order this rule to be dis- the insolvent, were sold at private sale charged.

by the receiver and the amount realized,

less expenses, constitutes the fund for Amendment allowed.


The exceptant contends that the merchandise having been received after

the insolvency of the buyer and after the C. P. of

Luzerne Co. receiver had been appointed, and the reIn re Hessel, Receiver ceiver having taken possession thereof,

the purchase price therefor became a debt of the receivership and should be

paid in full from the funds in hand. Insolvency - Goods delivered to re

This claim would seem to have no leceiver-Sales-Passing of title-Deliv- gal foundation. The property in the ery to carrier-Act of May 19, 1915.

merchandise passed from seller to buyer

upon delivery to the carrier (Sales Act Where goods are delivered to a carrier of May 19, 1915, § 19, rule 4, pars. I and prior to the insolvency of the buyer and the appointment of a receiver for the buyer, and 2, P. L. 543, 548), and the seller, not thereafter come into possession of the re- having availed itself of section 57 (Sales ceiver, and the seller has not availed himself Act of 1915) to stop in transit and reof section 19, rule 4, paragraphs 1 and 2, of the Act of May 19,' 1915, P. L. 543, 548, to take possession, the merchandise was stop the goods in transitu, such goods are a properly in the hands of the receiver as part of the assets of the insolvent buyer, inasmuch as the title to them passed on deliv- an asset of the insolvent. Accordingly, ery to the carrier.

exceptions dismissed.


the trial on

O. & T. of

York Co. ant. But the jury was not entirely withCommonwealth v. Kinard out anything on which to base its judg

ment of the defendant's age. He sat at the counsel table throughout the trial,

and was on the witness stand for a conCriminal law-Statutory rape-Age of siderable time as a witness in his own defendant--Proof of.

behalf. He was a husky countryman,

having the full size and appearance of The age of the defendant is a constituent ladult manhood. To the court he seemed element of the crime of statutory rape, and must be proven by the Commonwealth. nearer twice sixteen than only of that Where there was no specific testimony on age.


not a stripling, and either side at

an indictment showed no signs of adolescence or imcharging statutory rape to establish the age of the defendant, but where the defendant maturity. His employment was at what was on the witness stand on his own behalf is considered as man's work in the and had the full size and appearance of adult

country. From the testimony as to manhood, well over sixteen years of age, and the question of the want of proper proof of those matters, and from their observathe defendant's age was not raised until on tion of the defendant and the hearing of the motion for a new trial, a verdict of guilty his testimony, the jury had a good, opwas sustained.

portunity to judge of his age. The ComMotion for a new trial in Common-monwealth is not held to strict and acwealth v. Jerry Kinard, No. 8, January | curate proof of a defendant's age, as it Sessions, 1923, in the Court of Oyer and is not in its power to compel him to disTerminer, of York County, Pa. Motion close it, and it is sometimes impossible to refused.

get it from other sources. Logan & Logan, for motion.

There was some evidence before this Il'. Il'. Van Baman, District Attorney, defendant. He could not therefore pre

jury, indirectly indicating the age of the contra.

vent the case from going to the jury, nor Wanner, P. J., January 27th, 1024.--

is he entitled now to a new trial, merely A new trial is demanded in this case be- because he withheld what would have cause there was no sufficient evidence at

made it clear, if he was under sixteen the trial that the defendant was of the


age. age of sixteen years or upwards at the

It is true that the age of the defendtime of the commission of the offense.

ant is a constituent element of the crime No question whatever as to his age of statutory rape, and must be proven by was raised at the trial. No evidence was the Commonwealth. But the defendant offered to show that he was less than

cannot ask a new trial where there is sixteen years old when the offense was committed. No objection to the suffi- because it is not entirely accurate and

some evidence on the subject, merely ciency of the evidence was made to the

complete. If it was not sufficient to subjury in the argument of counsel, or to mit to the jury, that question should have the court in the submission of points. heen raised at the trial. If it was suffiNeither was there any objection to the

cient to go to the jury, as we think it court's charge, or any request for instructions to the jury, on the subject of was, the court ought not to disturb the

verdict unless we are convinced that it the age of the defendant.

was wrong.

In this case we are of the This question has been raised since opinion that the verdict is correct and is the trial, and is now brought to the at- sufficiently sustained by the evidence to tention of the Commonwealth's counsel make it improper for the court to disand of the court.

iturb it. It is true that there was no specific of- And now, to wit, January 7th, 1924: fer of evidence on either side at the The defendant's motion for a new trial trial to establish the age of the defend-lis overruled and refused.


O. C. of

Berks Co. 81 Pa. Superior Cit., 222. The decisions Reiss' Estate

on this question of a widow's right to her exemption are all to the effect that the foundation of the claim must be in .

the existence of the family relation at Decedent's estates-Widow's exemp- the time of the death of the husband and tion-Fiduciaries Act 7 June, 1917, Sec- father; and where this relation does not

exist at that time, the legislation on extion 12 (a).

emption is not operative: Henkel's EsThe right of a widow to claim her exemp- tate; Muller's Appeal, 13 Pa. Superior tion out of her husband's estate depends Ct., 337. While the authorities hold that upon the existence of the family relation. Where the evidence shows that the decedent the family relation must exist where the and his wife had not lived together for six widow is entitled to her exemption, this, years prior to his death, but their separation had been caused by circumstances over

however, means that it may be either acwhich the wife had no control and did not tual or constructive, and that in contemamount to a desertion, but was unavoidable, the family relation continued and she is en- plation of law it may exist where the titled to her exemption.

widow was not living with her husband Petition for citation to make widow's because she was prevented from doing appraisement.

so by circumstances beyond her control:

Grieves' Estate, 165 Pa. 126; McIntyre's John P. Wanner, for Lovina Reiss, Estate, 25 Dist. R. 139; Scull's Estate, petitioner.

30 Dist. R. 56.

The present case is not one of deserDavid Sharman, Jr., for respondent. tion, nor was there a severance of the re

Schaeffer, P. J., June 7, 1924.-Henry lation because of the voluntary act of the Reiss, late of the Borough of Sinking wife, and she is, therefore, entitled to her Spring, died on March 7, 1924, testate, exemption : Scull's Estate, supra. survived by his widow and three chil

On the hearing of this application, it dren. The will was probated and letters was shown that the petitioner and the detestamentary were granted to William B. cedent had lived together after their Reiss, a son. The estate is valued at marriage in a common household for about $1200. On April 5, 1924, a formal over fifty years, and that during this demand was made upon the executor by time their marital relations were not the widow for her exemption, but he re-smooth and pleasant, as was testified by fused to have the same set aside for her; the son, who said he saw the decedent whereupon she presented her petition to strike the petitioner. this court, asking that the exemption of The occurrence which brought about $500, allowed under Section 12 (a) of and marks the formal separation of the the Fiduciaries Act of June 7, 1917, be parties was the fracture of decedent's awarded to her. To this petition an an- leg, which was caused by the kick of a swer was filed by the executor, setting horse about eight years ago. Petitioner up the fact that the petitioner, Lovina and decedent, both about seventy years Reiss, had deserted the decedent about of age, were occupying a small farm at six years before he died, and that her the time of the accident, and were culticonduct towards him during this time vating it and tending the stock unassisted. was such as to put her claim outside the It appears that when it was discovered provisions of the Act.

that decedent's leg was broken and that It is well recognized that under the he needed care and nursing, the petitionprovisions of the above statute, allowing er said to the physician and members of $500 exemption to the widow, the estab- the family that she would not take care lished rule is, that the right to a claim of of him. She explained this apparent rethe widow's exemption depends upon the fusal to nurse her husband, by saying existence of the family relation, unless that she was too old and feeble to tend the separation has occurred through the the stock, take charge of the house and fault of the husband : Crawford's Estate, also nurse her husband.

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The decedent was then removed to the about the only thing to do under the cirhome of one of his children, where he cumstances which overtook them in their remained during his illness, and after his last days. “It was an unavoidable seprecovery, which was only partial, he aration, but in contemplation of law the went to live with his son, where he died. family relation continued :" Hattrick v. After he was taken from the farm to Hattrick, 55 Pa. 290. his daughter's house, the petitioner re- The objection was also made that if mained on the farm for some weeks, the exemption is allowed, it will be a when the stock was sold and she went hardship on the son, whose claim for to live with her relations.

nursing and boarding the decedent canThere was some testimony to prove not be paid, and that in view of this debt, that after decedent was able to be about it ought to be refused. “Subject to a again, he asked his wife on several of purchase-money lien, the widow's exher visits with him to come and live with emption is preferred to all claims against him. She denied that he asked her to go an estate

Against it a decedto housekeeping again, and further testi-ent's creditors, legatees, devisees or disfied that he did not come to see her after tributees cannot prevail :" Hildebrand's his illness and did nothing to indicate Estate, 262 Pa., 112, 113. While it may that he was either able or willing to give be true that the son was under expense her a home with him. Moreover, she and bestowed care and attention on his said that she and her husband were old father and gave him a home, it is equally and worn-out when they were obliged to true that the petitioner's relations gave live apart by the accident, and that by her a home and board without receiving reason of their physical condition and any compensation, and, consequently, the their financial circumstances, it was sim- hardship is not on one side. ply not possible for them to resume This is truly a case where the very housekeeping

purpose of the legislation, viz., the mainThe truthfulness of this version of the tenance and support of decedent's family situation existing during the last six and the protection from financial distress years of decedent's lifetime was confirm- immediately after the death of the hused by the pathetic appearance of the peti-band, is not only fulfilled, but where it tioner, whose body was bent and twisted, may serve to secure a home for the petias the result either of hard work or pain, tioner in the closing days of her life. or both. It was likewise admitted that We, therefore, find that the petitioner, the decedent was eighty-one years old as the widow of the testator, is entitled when he died.

to receive the exemption of $500 allowed It may be that a way could have been her by the Act of Assembly, and it necesfound which would have given these sarily follows that it is the duty of the parties a home under one roof, after the executor to have the property she has decedent was able to be about, but it is selected, appraised and set aside for her quite certain that neither of them, nor any of their children, showed a disposition to accomplish this end. If it be admitted that the actions of the claimant |0. C. of

Lackawanna Co. during the latter years showed a coldness and an indifference to her marital vows,

Harvey's Estate yet it must be remembered that he also erred, and did very little to keep them warm and glowing.

Orphans' court--Suit pending in other We do not feel warranted, under the court-Claimant must present claim in facts in this case, in finding that the petitioner deserted the decedent, or that orphans' court-Jurisdiction. there was a severance of the family re- Whether or not a suit is pending in some lation because of the voluntary act of the other court all creditors who have had due

notice are bound to present their claims bewife. They lived apart because it was fore the orphans' court in order to partici



pate in the fund for distribution, and which 184 Pa. 262, where on appeal from the is shown as a balance in the executor's ac

decree of the orphans' court awarding count.

a claim for an alleged stock subscription, The orphans' court has general jurisdiction over claimants against estates of decedents where it appears that a suit at law was and the funds to be distributed to creditors, pending to enforce the same claim and legatees and heirs. This jjurisdiction is not to be ousted by reason of a suit having been undecided, the supreme court will direct filed in some other court, and while the or- that the decree of the orphans' court be phans' court is bound by what has been decided in such other suits, yet its jurisdiction opened and all proceedings suspended continues as to the fund in the estate to be until the suit at law shall have been tried distributed and the portion to be awarded to and determined. such creditor.

Claimant being compelled to present his The fact that proceedings have been claim in the orphans' court cannot be re

instituted in the court of common pleas quired to discontinue a suit for the same cause of action instituted in another court. to establish a claim against a decedent

will not prevent the presentation of a Motion to require discontinuance of claim in the orphans' court: Hammett's suit pending in another court.

Dismis- Appeal, 83 Pa. 392. sed.

Proceedings such as here are a part S. B., C. B. & I. II. Price, for ac- of the administration of the estate, with countant and motion.

which a federal court is not permitted to

interfere: Byers v. McAnley, 149 L. S. O'Brien & Kelly, for claimant.

608. Sanda, P. J., August 11, 1927.-It is

The orphans' court has general juriscontended on behalf of the accountant

diction over claimants against estates of that the orphans' court will not adjudi- decedents and the funds to be distributed cate a claim against the decedent's estate

to creditors, legatees and heirs. This at the audit if suit for the same cause of jurisdiction is not to be ousted by reaaction is pending and undetermined in son of a suit having been filed in some another court.

other court, and while the orphans' court

is bound by what has been decided in The decedent, Alfred Harvey, died on such other suits (Dyer's Appeal, 3 Grant,

3 or about the 4th day of July, 1915, tes- 326), yet its jurisdiction continues as to tate, and letters testamentary on the es- the fund in the estate to be distributed tate were granted on the 8th day of Jan- and the portion to be awarded to such uary, 1915, to Hon. Laurence II. Watres creditor. and Laura X. Harvey.

In proceedings to distribute, the orIt appears that a suit was started in phans' court has jurisdiction to inquire the federal court in 1921, against the ex-into and determine all questions in the ecutors on the same claim now being pre- of creditors, legatees and heirs, or their


of distribution affecting the rights sented, and the executors through their counsel have objected to this claim for assignees. And the parties interested the reason that the federal suit is still

have the right to insist upon the exercise pending and has not been discontinued.

of this jurisdiction, even though the iden

tical question be involved in proceedings Whether or not a suit is pending in in another court: Shalleross' Estate, 13 some other court all creditors who have

Phila. 374. had due notice are bound to present their claims before the orphans' court in order fore, to present his claim in the orphans'

The claimant being compelled, thereto participate in the fund for distribu- court, cannot be required to discontinue tion and which is shown as a balance in a suit for the same cause of action inthe executor's account.

stituted in another court. It is urged in support of the motion And now, August 11, 1924, the motion and as an authority, Lindsay's Estate, is dismissed.

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