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VOL. IV.

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YORK LEGAL RECORD. advantage to persons not wealthy is, that

when the husband or father dies, by any THURSDAY, NOVEMBER 1, 1883. No. 35 sickness or casualty unforseen, his family

may not be left destitute. These assessaccounted for by the injection of an em

ment companies do not differ in this rebalming fluid, through the mouth and pect from the old line companies. Such nostrils of the corpse, by the undertaker companies form a membership on the for the purpose of preserving the body, basis that if one dies all the others must and that the embalming fluid contained contribute a certain proportion or fixed corrosive sublimate.

sum, and as there is no liquidated capital It is necessary in order to prove a con- from which to pay losses, they depend spiracy to show some concert of action upon the payment of assessments to meet between the persons charged with the the claims against them. This consideraconspiracy. In order, therefore, to find tion may serve to explain how, in one the plaintiff to be a conspirator, you must point of view, that is, in case of a party find from the facts and circumstances of living out his expectancy, a calculation of the case, that she agreed in some way the money he has to pay may be prudent, with the other persons named to defraud but the main object of insurance is the this company, and that she agreed with realizing the amount of the policy in case the others to obtain all of these insurances of death before that period, and in that fraudulently. The conspiracy alleged has way it may be a good investment. a double aspect. First, that Mrs. Leidig, The second aspect of the conspiracy plaintiff, and her son and her husband charged is, that the parties concerned conspired together to obtain all of these originally included Mr. Leidig himself as insurances, not for the bona fide intention one of them. But when we come to that of insuring her husband's life, or making part of the conspiracy which contemplates an investment of any money she had, but the impairing of the longevity, the hastenthat they expected to realize the large ing of the death of the insured, by an enamount of money insured by false state- couragement of intemperate habits, and ments in the several applications. The finally, by the ending of the life of the testimony of the insurance agents show insured by foul means, then Mr. Leidig how they themselves secured these several cannot be presumed to be a participant in risks. Mr. Motter, for instance, several, the means to hasten his own death. The and Mr. Stock several, and Mr. Eneas concert of action, the agreement must be Smith this one. You have had detailed proved to exist between the plaintiff and to you conversations between them and her son, conceived and concerted after Mr. and Mrs. Leidig. How persuasions the insurances were effected, unless a were used and arguments pro and con as deep plot of that character existed from to the feasibility of effecting the insur- the beginning to make Mr. Leidig a victim. ances. A life insurance policy does not The credibility of the witnesses on either strike the ordinary mind as a means of side is for you to determine, and you will investment, depending upon the expect take the whole of this evidence, and find ancy of the life of the insured. When a whether or not such a conspiracy is provman takes out a policy of insurance on his ed by the defendant, with the fatal results life or that of another, it is because of the charged by them, or whether the insuruncertainty of life. It is because the per- ances were originally bona fide taken, and son insured may die within the expect- Mr. Leidig died by one of these extraordiancy, in five years, in two years, in one nary ills that flesh is heir to, whether from year, in one month, the next day. The physical predisposition, superinduced by by over exertion or otherwise, and known (4.) The plaintiff can only recover the as congestion and hemorrhage.

sum of three dollars for every $1,000 maxIf you should find that there was such imum sum of benefit actually in force in a conspiracy, the plaintiff cannot recover. this association upon the decease of said But if you find that there was no such Jacob W. Leidig, and upon which assessconspiracy, and that the insured did not ments were paid, and as there is no evimake untrue answers in his application, dence in the case of the number of such if untrue, that he was misled by the $1,000 benefits or insurance in force, nor agents who solicited or secured the in- that any assessments were paid, your versurances, the plaintiff can recover in this diet must be for the defendants. action the amount of the maximum sum (We cannot affirm this point. The named in the certificate of membership, clause in the certificate of membership renamely, the sum of three thousand dollars, ferred to is an exception in favor of dewith the interest from the time of payment. fendant, which has not been shown in I have endeavored to assist you in your

this case.) deliberations, as far as I could, by group- 36. In refusing to affirm the defend ing together the testimony pertinent to ant's fifth point: the issues you are to determine as to the

(5) There being no proof that there facts in this case, but I can express no were any “$1000 maximum sums of beopinion as to the facts.

nefits actually in force in said (this assoOn the 3d of February, 1882, the jury ciation) defendant company upon the derendered a verdict in favor of the plaintiff cease of the said Jacob W. Leidig, and for $3333.00 with costs. On a writ of upon which mortuary assessments were error, the defendant filed forty-three as- paid," the plaintiff is not entitled to damsignments of error. The 34th to 37th as- ages or to a verdict, and you must theresignments of error involving the construc- | fore find for the defendants. tion of the policy were as follows:

(We cannot affirm this point for reasons 34. In refusing to affirm defendant's given in last point.) third point :

[Having affirmed defendant's sixth (3.) To entitle the plaintiff to recover point: in this action it was necessary for her to (6.) The defendants have pleaded and show (1) that the defendants were satis- given in evidence the application for memfied with the proofs of death forwarded bership made by Jacob W. Leidig, upon and that she had a bona fide claim; (2) which the certificate of membership dethe number of $1,000 maximum sum of clared upon was issued ; among other benefit actually in force in this association things contained therein are the following (the defendant Co.) upon the decease of questions and answers : "24. Does the the said Jacob W. Leidig; and (3) that applicant understand that he is responsiassessments had been paid to said asso- ble for all answers in this application, inciation, (defendant Co.) and the amount cluding medical exainination?" Answer: thereof on account of said claim-as the “Yes.” “Did he read or hear read all proof failed on all these points, the plain- | the questions and answers before signtiff cannot recover and your verdict must | ing?" Answer: “Yes.'' be for the defendants.

There is also contained in said applica(We cannot affirm this point.)

tion the following: “It is hereby cove35. In refusing to affirm defendant's nanted and agreed that the above answers 4th point and instructing the jury that the are true; that a misstatenient or concealclause referred to was an exception in ment of any fact touching the habits of favor of defendant.

the applicant or material to the question

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of longevity, or rendering the risk more Per Curiam--We have examined the hazardous * * that then, and in i voluminous evidence and considered the every other event the certificate of mem- forty-three specifications of error assigned; bership shall become null and void, and but we find no error sufficient to require the association [defendant company] shall a reversal of this judgment. We will not be absolutely released from any and every refer to them seriatum. In view of the liability resulting from said certificate of nature and character of the defence set up membership, contract and application." and the numerous questions raised, the The effect of which is, that if the said case was well tried. No just complaint Jacob W. Leidig made or gave any un- can be made to the rulings relating to the true answers the certificate of membership evidence, nor as a whole to the manner in is null and void, and your verdict must be which the case was submitted to the jury. for the defendants.

Substantial justice appears to have been [This point is correct.]

reached by the verdict. Judgment af37. In refusing to affirm defendant's firmed. seventh point, and in instructing the jury that it was for them to determine whether

COMMON PLEAS. the applicant had read or heard read all the answers in the application :"

C. P. of

Franklin County (7.) The evidence introduced for that

Lake's Estate. purpose by the plaintiff failed to show

A devise to two sons of all testator's real estate, after that the applicant did not read or hear the decease of the widow. "by paying" the pecuniary

legacies, has the effect of charging these legacies upon read all the questions and answers con- the real estate devised. tained in the application ; therefore he Such a lien is not discharged by a sheriff's sale. and the plaintiff are bound by the an- Exceptions to the report of John C. swers therein made and contained.

Sife, Auditor distributing proceeds of (The question raised on this point as to Sheriff's sale of the real estate of James whether the plaintiff did or did not read L. Lake. or hear read all the questions and an

The facts appear in the Court's opinion. swers contained in the application is for

Geo. A. Smith for exceptions. the jury to determine, and therefore we cannot affirm this point.

J. Nelson Sifes and John A. Robinson Cochran & Hay, and W. Henry Smith for report.

& for Plaintiff in Error cited no authorities October 22, 1883. McCLEAN, P. J. on the above assignment of error. It is shown by the auditor's notes that

E. W. Spangler, W. C. Chapman and Hon. Geo. A. Smith appeared at the Hon. F. Carroll Brewster for Defendant audit for Messrs. Lodge and Nelson, the in Error.

purchaser's at the Sheriff's sale and also When a fact is peculiarly within the for the legatees. The auditors find as a knowledge of a party, the burden is on fact that when Jacob J. Mellott purchashim to prove such fact, whether the pro

ed the ‘Brick House property,' it was position be negative or affirmative; Whar- agreed that he should pay the legacies." ton on Evidence, 367, 368 ; 13 La. Rep. I am somewhat at a disadvantage in not 397; 30 Ill. 347; 6 T. R. 57; 6 Gray 192 ; having an oral argument upon the excep17 P. F. Smith 370.

tions, but I must understand of course The law will not force a man to show that the agreement referred to was bea thing which by intendment of law lies tween Joseph B. Mellott and Jacob J. not within his knowldge: Best on Evi- Mellott and that the legatees whose legadence 274, 504 and 506; 16 A. & E. 125; cies have not been paid were not parties 3 B. & B. 302.

to such agreement.

I am of the opinion that the auditor's tees by payment of the legacies : Etter & conclusions of law are correct, both that Snyder v. Greenawalt, 2 Outerbridge 422. the testator intended the legacies to be a How far such liability may be varied by charge of the land devised ; and that the the undertaking of Jacob J. Mellott to pay testamentary lien was not discharged by the legacies out of the "Brick House the sheriff's sale.

property" sold to him by Joseph B. MelThe testator gives to his widow after lott is also a question not before the court all his legal debts are paid, all his real and and does not appear to have been raised personal estate during her widowhood. before the auditor. Whether Jacob J. He devises to his two sons Joseph B. and Mellott's grantee Jacob W. Mellott reElias Mellott, after his widow's decease, ceived a conveyance of general warranty all his real estate by paying the pecuniary I cannot now see, not having the record legacies at his widow's decease. The two

at hand. sons were to have the land by paying And now, to wit: October 22, 1883, it these pecuniary legacies, the words "by is ordered and decreed that the exceppaying" being the very same that are tions be dismissed and the auditor's refound in the case of Drake v. Brown, 18 port confirmed without prejudice howP. F. Sınith 223, and in which the lega- ever to any rights which the purchasers cies were held to be evidently intended by may have to resort to the devisees upon the testator to be charged upon the land the personal liability of the latter, or to devised. While to make legacies a charge any remedy which the purchaser may be on land it must be found that such was entitled to upon any undertaking of Jacob the testator's intention, still it is not neces- J. Mellott or his grantee Jacob W. Mellott. sary that its ascertainment should rest on direct expression, it is enough if the intention appears by natural and ob- Landlord and Tenant-Covenant to pay vious implication from the provisions of Gas--Distress—-The lessee covenanted the will : Gilbert's Appeal, 4 Norris 347. | to pay rent $1500 per annum, and also The legacies unpaid must be maintained "the gas bills at the rate of three dollars as a fixed lien on the land. The purchas- per 1,000 feet during her occupancy of the ers had constructive notice of the charge premises.Held, that the landlord could and they were bound to know that it was include the amount due for the gas in his a lien of such indeterminate value that it distraint.--Fernwood Masonic Hall Aswould not be divested by the sheriff's sociation et al. v. Jones and Wife.-—-14 sale. They will have to pay it therefore, Pittsburgh Legal Journal 86. when it becomes due. Dewart's Appeal, 7 Wr. 325. Its value is incapable of being definitely ascertained, and it was Lunacy-Opening Judgment.-An increated to run with the land. Cowden's quisition finding a person a lunatic is Estate, i Penn. St. 267; Heist v. Baker, | prima facie evidence of incompetency to 40 Ibid 9; Heister v. Green, 48 Ibid 102 ; make a contraci at any time covered by Helfrich v. Weaver, 61 Ibid 390.

the finding, and in the absence of eviThe devisees Joseph B. and Elias hav. dence to over come the presumption, or to ing accepted the devise, they may have show that it would be unconscionable to become subject to a personal liability to do so, a judgment confessed by him dur. pay the legacies, which may be enforced ing the period will be opened.-Gresh v. against them in an action of debt institut Tamany, 12 Luzurne Legal Register 291. ed by the legatees or by the purchasers when subrogated to the rights of the lega

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VOL. IV.

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YORK LEGAL RECORD. verdict for the plaintiffs, and reserved the

following point whether or not, the asTHURSDAY, NOVEMBER 8, 1883. No. 36 signment being made upon the considera

tion of the payment of twenty-eight dolSUPREME COURT.

lars, the assignee having no interest in

the life of the assured, and having taken Gilbert v. Moose's Administrators.

the assignment for the purpose of specuLife Insurance-Wager Policy. lation only, is entitled to retain the money A policy of life insurance was issued to J., a son of the received on the policy as against the perassured's daughter-in-law. J. assigned it to G., who paid the assessments, &c., and upon the death of the assured sonal representatives of the deceased bereceived the amount of the policy. Suit was brought by the administrators of the assured to recover the amount yond the amount of the consideration, fees received by G., less assessments and dues paid by him. HELD, That plaintiff's were entitled to recover.

and assessments paid to the association." A gambling policy will not be enforced in this state.

Afterwards on agreement the Court enThe proceeds of the policy could not go to J. or his assignee, since he had no insurable interest.

tered judgment on the verdict for the The dictum of Sharswood in Insurance Co. v. Sleau, 2 plaintiffs. We are thus at once brought Casey 189, does not apply to this case, for that is only ap: plicable to a case where the policy is bona fide, and face to face with the question, really the lounded on an insurable interest. Error to the Court of Common Pleas only one in the case, can one having no

interest in the life assured, and for the of Adams County.

purpose of speculation only, acquire by The facts of the case are found in the assignment or otherwise, such title to the Court's opinion.

policy as the law will enforce ? May 31st, 1883. GORDON, J. Jacob

It was held by this Court as early as Moose in his life time, August 17, 1880,

1803, in the case of Pritchet v. The Insurmade application to the Southern Penn

ance Co., 3 Yeates 458, that every species sylvania Relief Association of Hanover, of gaming contracts of insurance, whereYork county, Pa., for an insurance on his

in the insured has no interest in the sublife, and upon this application a Policy or ject matter of the policy, or one only Certificate of Membership, as it is called, [colorable, is in this Commonwealth, within the sum of two thousand dollars, was

out sanction of either law or usage; that issued for the benefit of one Peter Jacobs, such contracts are mischievousand dangeran alleged grand-son of the assured. It

ous to the interests of trade, commerce turns out, however, that Jacobs was in no

and society, and are to be reprobated way related to Moose, being but a son of rather than encouraged by our Courts. a son's wife, hence having no assurable

The very same view of this subject is interest in the life on which the policy adopted in Edgwell v. M’Laughlin, 6 was issued. On the 31st of August fol- Wharton 176, and it was there said that lowing the date of the certificate, Jacobs no kind of wager had ever been recoverfor the consideration of twenty-eight dol- able in the Courts of Pennsylvania. lars, assigned to John G. Gilbert, the defendant, by whom all subsequent assess

So also in the case of Adams v. The Inments made by the company were paid.

surance Co., I Rawle 97, it was asserted On the 3rd of April, 1881, Jacob Moose that, in this State a gaming policy cannot died, and the defendant received from the

be enforced. We need not stop to concompany on the policy some three hun. sider at length the principles on which derd and fifty-six dollars. It was for this these decisions rests for they must be sum of money, or the balance of it, after obvious to every sound moralist. deducting the assessments and other ex- The gambler is as a rule reckless and pense paid by Gilbert, that this suit was dangerous, and seldom hesitates at the brought. The court below after hearing means necessary to secure his bet. We the evidence, directed the jury to return a have within our own knowledge a case

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