Bill in equity. Exceptions to distribu

tion.

Paul Bedford, for exceptant.

On May 26, 1924, the plaintiff filed his statement, and on the same day it was served on defendants' counsel of 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, and for this reason counsel for defendant has moved to strike off the same.

The facts as disclosed by the exceptions filed are as follows: That upon 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 subsequent to the appointment on Feb. endorsement of any kind appearing 16, 1923, of the receiver, and subsequent 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 Sagenkahn amendment or a new pleading to be filed Brothers, per J. Johnson, their agent, and upon such terms as it may direct." The receipted for by said Johnson for Sagenobjection raised is purely a formal one, kahn Brothers, and thereafter said reasd does not go to the merits of the conceiver took control of said merchandise. troversy. It can readily be cured by It is further conceded by the receiver amendment. We think an amendment 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.

Amendment allowed.

C. P. of

by the receiver and the amount realized, less expenses, constitutes the fund for distribution.

The exceptant contends that the merchandise having been received after the insolvency of the buyer and after the Luzerne Co. receiver had been appointed, and the re

In re Hessel, Receiver

Insolvency Goods delivered to receiver-Sales-Passing of title-Delivery to carrier-Act of May 19, 1915.

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.

This claim would seem to have no legal foundation. The property in the 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 re

of section 19, rule 4, paragraphs 1 and 2, of

the Act of May 19, 1915, P. L. 543, 548, to stop the goods in transitu, such goods are a part of the assets of the insolvent buyer, inasmuch as the title to them passed on delivery to the carrier.

take possession, the merchandise was properly in the hands of the receiver as an asset of the insolvent. Accordingly, exceptions dismissed.

O. & T. of

Commonwealth v. Kinard

York Co. ant. But the jury was not entirely without anything on which to base its judgment of the defendant's age. He sat at the counsel table throughout the trial, and was on the witness stand for a con

Criminal law-Statutory rape-Age of siderable time as a witness in his own

defendant--Proof of.

The age of the defendant is a constituent element of the crime of statutory rape, and must be proven by the Commonwealth.

behalf. He was a husky countryman, having the full size and appearance of adult manhood. To the court he seemed nearer twice sixteen than only of that Where there was no specific testimony on age. He was not a stripling, and either side at the trial on 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 opportunity 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.

was sustained.

Logan & Logan, for motion.

W. W. Van Baman, District Attorney,

contra.

Wanner, P. J., January 27th, 1024; A new trial is demanded in this case because there was no sufficient evidence at the trial that the defendant was of the age of sixteen years or upwards at the time of the commission of the offense.

No question whatever as to his age was raised at the trial. No evidence was

offered to show that he was less than sixteen years old when the offense was committed. No objection to the sufficiency of the evidence was made to the jury in the argument of counsel, or to the court in the submission of points. Neither was there any objection to the court's charge, or any request for in structions to the jury, on the subject of the age of the defendant.

There was some evidence before this defendant. He could not therefore prejury, indirectly indicating the age of the vent the case from going to the jury, nor because he withheld what would have is he entitled now to a new trial, merely because he withheld what would have made it clear, if he was under sixteen years of age.

It is true that the age of the defendant is a constituent element of the crime

of statutory rape, and must be proven by the Commonwealth. But the defendant cannot ask a new trial where there is because it is not entirely accurate and some evidence on the subject, merely complete. If it was not sufficient to submit to the jury, that question should have been raised at the trial. If it was sufficient to go to the jury, as we think it was, the court ought not to disturb the verdict unless we are convinced that it was wrong. In this case we are of the opinion that the verdict is correct and is

This question has been raised since 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. turb 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- is overruled and refused.

O. C. of

Reiss' Estate

Berks Co. 81 Pa. Superior Cit., 222. The decisions 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 exemption is not operative: Henkel's Es

tion 12 (a).

upon the existence of the family relation.

The 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 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.

Petition for citation to make widow's appraisement.

widow was not living with her husband because she was prevented from doing. 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 deser[tion, nor was there a severance of the relation because of the voluntary act of the wife, and she is, therefore, entitled to her exemption: Scull's Estate, supra.

On the hearing of this application, it was shown that the petitioner and the decedent had lived together after their marriage in a common household for over fifty years, and that during this

smooth and pleasant, as was testified by the son, who said he saw the decedent strike the petitioner.

David Sharman, Jr., for respondent. Schaeffer, P. J., June 7, 1924.-Henry Reiss, late of the Borough of Sinking Spring, died on March 7, 1924, testate, survived by his widow and three children. The will was probated and letters testamentary were granted to William B. Reiss, a son. The estate is valued at about $1200. On April 5, 1924, a formal demand was made upon the executor by time their marital relations were not the widow for her exemption, but he refused to have the same set aside for her; whereupon she presented her petition to 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 was such as to put her claim outside the provisions of the Act.

It is well recognized that under the provisions of the above statute, allowing $500 exemption to the widow, the established rule is, that the right to a claim of the widow's exemption depends upon the existence of the family relation, unless the separation has occurred through the fault of the husband: Crawford's Estate,

vating it and tending the stock unassisted. It appears that when it was discovered that decedent's leg was broken and that he needed care and nursing, the petitioner said to the physician and members of the family that she would not take care. of him. She explained this apparent refusal to nurse her husband, by saying that she was too old and feeble to tend the stock, take charge of the house and also nurse her husband.

The decedent was then removed to the home of one of his children, where he remained during his illness, and after his recovery, which was only partial, he went to live with his son, where he died. After he was taken from the farm to his daughter's house, the petitioner remained on the farm for some weeks, when the stock was sold and she went to live with her relations.

about the only thing to do under the circumstances which overtook them in their last days. "It was an unavoidable separation, but in contemplation of law the family relation continued:" Hattrick v. Hattrick, 55 Pa. 290.

The objection was also made that if the exemption is allowed, it will be a hardship on the son, whose claim for 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 the decedent was eighty-one years old when he died.

We, therefore, find that the petitioner, as the widow of the testator, is entitled to receive the exemption of $500 allowed her by the Act of Assembly, and it necessarily follows that it is the duty of the executor to have the property she has selected, appraised and set aside for her

use.

It may be that a way could have been found which would have given these parties a home under one roof, after the decedent was able to be about, but it is 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 | 9. C. of during the latter years showed a coldness and an indifference to her marital vows, yet it must be remembered that he also erred, and did very little to keep them warm and glowing.

We do not feel warranted, under the facts in this case, in finding that the petitioner deserted the decedent, or that there was a severance of the family relation because of the voluntary act of the wife. They lived apart because it was

Lackawanna Co.

Harvey's Estate

Orphans' court--Suit pending in other court-Claimant must present claim in orphans' court-Jurisdiction.

Whether or not a suit is pending in some other court all creditors who have had due

notice are bound to present their claims be

fore the orphans' court in order to partici

pate in the fund for distribution, and which is shown as a balance in the executor's ac

count.

The orphans' court has general jurisdiction

184 Pa. 262, where on appeal from the decree of the orphans' court awarding a claim for an alleged stock subscription, 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 claim in the orphans' court cannot be required to discontinue a suit for the same cause of action instituted in another court.

The fact that proceedings have been instituted in the court of common pleas 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. & J. H. Price, for ac-of the administration of the estate, with countant and motion.

O'Brien & Kelly, for claimant.

Sanda, P. J., August 11, 1924.-It is contended on behalf of the accountant

that the orphans' court will not adjudicate a claim against the decedent's estate at the audit if suit for the same cause of action is pending and undetermined in

another court.

which a federal court is not permitted to interfere Byers v. McAnley, 149 U. S. 608.

The orphans' court has general jurisdiction over claimants against estates of decedents and the funds to be distributed to creditors, legatees and heirs. This jurisdiction is not to be ousted by reason of a suit having been filed in some 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, 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 H. Watres creditor. and Laura N. 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 exinto and determine all questions in the ecutors on the same claim now being pre-of creditors, legatees and heirs, or their way of distribution affecting the rights sented, and the executors through their counsel have objected to this claim for the reason that the federal suit is still pending and has not been discontinued.

Whether or not a suit is pending in

some other court all creditors who have had due notice are bound to present their claims before the orphans' court in order to participate in the fund for distribu

tion and which is shown as a balance in the executor's account.

assignees. And the parties interested have the right to insist upon the exercise of this jurisdiction, even though the identical question be involved in proceedings in another court: Shallcross' Estate, 13 Phila. 374.

The claimant being compelled, therefore, to present his claim in the orphans' court, cannot be required to discontinue a suit for the same cause of action instituted in another court.

And now, August 11, 1924, the motion

It is urged in support of the motion and as an authority, Lindsay's Estate, is dismissed.