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VOL. IV.

No. 8.

He then

YORK LEGAL RECORD. under his construction of the will and

codicil thereto he refused to distribute anyTHURSDAY, APRIL 26, 1883.

thing to Robert's wife, holding that she

was substituted as legatee in place of her SUPREME COURT.

husband, and thus occupied the same

position he would have done if the codicil Buehler's Appeal.

had not been executed. The learned In a proviso to his will a testatur directs the manner in judge of the Orphans' Court adopted the which the net share of each child shall be ascertained.Afterwards he revokes the bequest to R., a: contained in

opposite view of the question, and held two sentences of his will quoted by him w his codicil, but that her interest as legatee was unaffected carefully avoids chauging orannulling the mode in which the share of each child is to be ascertained.

by the proviso in relation to advancegives the share of his son R. to his son's wife. HELD, (reversing the court below), that the share to which R.'s

ments. wife was entitled to use the share which R. would have The question thus presented is a very takeu if his wife had not been substituted as a legatee in his stead.

narrow one, and must be determined by Appeal from the Orphans' Court of the expressed intention of the testator as Montgomery county.

disclosed by his will. In the proviso above October 2, 1882. STERRETT, J. After quoted he directs the manner in which providing for the payments of his debts the net share of each child shall be ascerand bequeathing a portion of his estate to tained. He afterwards revokes the behis widow, the testator, Martin Buehler, quest to Robert as contained in the two directed the residue of his estate to be sentences of his will quoted by him in the equally divided among his children, of codicil; but he carefully avoids changing whom Robert M. Buehler was one, with or annulling the mode in which the share this proviso, “that there shall be deducted of each child is to be ascertained. He from the share of each of my children, to then gives the share of his son Robert to whom I have made any advances, the his daughter-in-law. amount of such advances." He after- What then is the share of Robert that wards revoked the devise to his son Rob- is thus taken from him and given to his ert by the following clause in the codicil, wife? It is the share that he would be viz: “I do hereby revoke the devise to entitled to if his wife had not been substimy son, Robert M. Buehler, in my said tuted as a legatee in his stead, and that is will contained and set forth in the follow- to be ascertained in the mode pointed out ing words, so far as they affect my said by the will. It follows that the first reson, to wit: “And the rest, residue and port of the learned auditor was correct, remainder of my whole estate, real and and should have been confirmed. personal, I give, devise and bequeath to Decree reversed at the cost of the apsuch of my children as may be living at pellees, and it is ordered that the record the time of my decease. I do hereby be remitted with instructions to distribute give, devise and bequeath the shares of my the fund according to the original report sons in my estates to them respectively, of the auditor. their heirs, executors, administrators and assigns forever.” In the same connection

ORPHANS' COURT. he disposed of the share which Robert would otherwise have taken under the

Lancaster County. will as follows, viz: “And I do hereby The Seventh-Day Baptists, of Ephrata, give. devise and bequeath the share of my

Lancaster Co. said son unto my daughter-in-law Mary, the wife of my said son, Robert M. Bueh

Trustees-Mode of conducting Electionsler, to her and hers,” etc. The question

Usage. is whether, under this devise of Robert's

Where the charter of incorporation of a religious soci

ety contains nothing as to the mode of conducting elecshare to his wife, she is entitled to a full

tion of trustees, and there are no by-laws of the society

regulating the same forner usage and practice becomes share of the estate, unaffected by advance- the law in such cases. ments made to him by the testator in his The following is a short history of a lifetime, or whether in ascertaining her legal contest, of which the following opindistributive share the advancements so ion forms a part. made are to be deducted as directed in the The Society of Seventh-day Baptists of proviso above quoted.

Ephrata, in Lancaster county, was incorThe learned auditor found that the ad- porated by Act of Assembly approved the vancenients to Robert was in excess of a 21st day of February, 1814. This act profull share in the fund for distribution, and 'ivded, inter alia, for the election of seven

0. C. of

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trustees, who were “to be elected on the and restrained from taking part in any way first Monday of January in every fourth in the management of the property, &c., year after the passage of this Act, at the of the society. A master was appointed town of Ephrata, in the county of Lan- to take testimony and report, whereupon caster.” An Act of Assembly was passed he dismissed the bill of complaint. The on the ioth day of February, 1865, reduc- Court, upon exceptions to the master's reing the number of trustees from seven to port, sustained the exceptions and made three. The society, being possessed of the injunction perpetual. Judge PATTERconsiderable real estate in and around the son delivered the opinion, Judge LIVINGtown of Ephrata, it has become quite Ston dissenting. wealthy by reason of an increased revenue This decree was made May 6th, 1882. in the way of rents, the value of the real January 2, 1883, being the day for the estate being greatly enhanced by the con- regular election of trustees, as provided by struction of the Reading and Columbia the charter, two sets, une being Lorenz Railroad and the improvements in the Nolde, William Madlem and Henry Sheaftown of Ephrata resulting therefrom. The fer, and the other A. F. Madlem, J. J. Zergovernment of the society was peaceable fass and T. Konigmacher, were returned, and harmonious until the year 1879, when who at the same time filed their bonds, an election was held which has caused a asking the Court to approve the same, division in the society ever since. The 6th whereupon the following opinion is : day of January, 1879, being the regular May 2, 1882. PATTERSON, A. L. J.and appointed time for holding the quad- In the matter of the bonds filed in said rennial election, notice was posted on the Court and asking said Court to approve "Saal” or meeting-house, that on that day the same. One filed January 2, 1883. — between the hours of 12 m. and 4 p. ni. One filed January 3, 1883. an election would be held for trustees, of The Court, on inspection of the said the Seventh day Baptists. Some of the bonds and the return of the minutes of members, dissatisfied with the manage- election of trustees by the said religious ment of the society, resolved on the elec- society of “The Seventh-day Baptists, tion of a new board of trustees, and, as a discovered that the members of the said result, two sets of trustees, of three each, religious society met in the “Saal.” the were returned as elected.

house of worship of said society, on the On the 18th of January, 1879, both sets Ist day of January, 1883, and held elecclaiming to have been legally elected pre- tions for trustees. By the ad section of sented to the Orphans Court, as required by the Act of Assembly incorporating said the charter, the election returns with cer- society, it is provided that the trustees tificates attached, together with their bonds shall be elected on the first Monday of prepared, asking for the approval of the January in every fourth year after the same. The Court, after testimony taken passing of said Act. That January last and read, declined to approve either of the of 1883 was the first Monday of said month, bonds, Judge Patterson delivered the opin- was the end of the term of office of the ion, but suggested that an election be held former trustees, and the time at which, to elect trustees to fill the vacancy occas- under the charter, a new board of trustees ioned by any incompetency of any of the had to be elected. trustees to act. Whereupon notice was This religious society has not been posted for the election to be held on the united or harmonious among its members 7th day of July, 1879, where William Mad- for some years past but it is distracted by lem, Lorenz Nolde and Jacob S. Spang- unhappy fueds. Hence there were two ler, were returned as elected.

distinct elections held by the members of The newly elected trustees filed their said society, on the said ist Monday of bond with sureties and asked the Court to January last, at the same place. approve the same. Testimony was taken An Act of Assembly passed subseand read on the argument after which quently to the original Act of incorporaJudge Patterson delivered an opinion ap- tion, reduced the number of trustees from proving the bond. Judge Livingston dis- seven (the number in the original Act) to sented and objected to the approval of the three and therefore but three such officers bond.

can be elected to manage the business of The new board of trustees not getting the society. control of the property, filed a bill in equity But instead of three persons having praying that the defendants be enjoined been returned as trustees duly elected there are six persons so returned-each of which the above three persons were electthe two divisions of the members of said ed, was given, namely, a written notice of society having met and elected three trus- time and place, signed by the president of tees, and each set have filed their bond in the board of trustees, posted on the door this Court and ask that they be approved. of the "Saal,” and a copy thereof placed The aforesaid subsequent Act amending on a post inside of the "Saal.” That was the act of incorporation, and passed and the mode of notice adopted by the long approved the roth day of February, A. D. usage of the society. It being a religious 1865, provides that the three trustees society, and its Act of incorporation being elected, “before entering upon the duties silent as to the mode of conducting elecof their office shall respectively give bond tions of trustees, and the corporation not with sureties to be approved by the Or having by by-laws directed the manner of phans' Court of Lancaster county, for the elections, usage became the law : 8 Harris faithful performance of the trust, &c. 484, Joker v. Commonwealth. The said

In order to conserve the welfare and notice was signed too, by the president of best interests of the said religious society, | the board of trustees in office and in posit manifestly becomes the duty of the session of the property of the society.Court to take action in the premises—to The meeting thus called organized at 1172 approve the bond of one set of trustees. o'clock, according to the notice given and Without such approval neither sect, ac- according to the usage of the society, by cording to the provisions of the Act just electing a judge, inspector and clerk, as quoted, can enter upon the duties of their officers of the election, and thus organizoffice. Necessity dictates that there ed, cast twenty-four votes for the said three should be a board of trustees to manage persons, to wit: Lorenz Nolde, Wm. Madthe business of the society. The property lam and Henry Sheaffer as trustees, and of the society consists of real and personal they are returned as trustees, duly electestate—the real estate of several tracts of ed, of the said society, and as it appears land and tenements ; leases of the same to by a majority of all the votes cast by the be made, rents collected, the “Saal,” the members of said society for trustees houses occupied by the members of the said three persons have, therefore, the society for worship, must be kept in order prima facie written title to the office, and opened and closed in order to accom- and can be set aside only by a contest in modate the worshippers, and the funds the forms prescribed by law: 11 Wright and profits of the real estate of the society, 296, Kerr v.

296, Kerr v. Trego. The Court, therefore when collected, to be appropriated, as the will and does hereby decree an approval Act of incorporation directs, to provide of the said bond filed January 3d, 1883 in for the comfortable support and maintan- | the Orphans' Court. ance of the in-door members of the society The bond filed January 2d, 1883, by A. and the aged. The duties of the trustees, F. Madlam, Jas. J. R. Zerfas and T. Konif properly performed, are onerous and ingmaher, as trustees, is not approved by impose great responsibility, and cannot this Court, for by an inspection of the safely be postponed.

election returns filed in this Court, JanuThe question then arises which set of ary 15th, 1883, that the said three persons trustees, returned to this Court, should received but seventeen votes of the memhave their bond approved. It is not dis- bers of said society for the office of trusputed that the bonds filed by each set of tee, not being a majority of all the votes trustees are both ample and the sureties on cast for candidates for that office. We both are abundantly responsible. Which find also that the members who cast the bond should the Court approve? The said seventeen votes met and organized bond filed in this Court January 30, 1883, after 12 o'clock, noon, in the “Saal” and by Lorenz Nolde, Wm. Madlam and Hen- then held their election as aforesaid ; that ry Sheaffer as trustees is ample. We find, when the said seventeen members met on inspection of the election returns filed and organized and cast their votes, the in this Court, that the said three persons meeting called according to the usage of received the votes of twenty-four of the the society as aforesaid, at 11/2 o'clock, members of said society for the office of had organized and were receiving votes, trustee, a majority of all the votes cast by and its officers were qualified to hold the the members of the society for candidates election, having maintained the forms of for that office ; find that due notice of the organization according to the laws and time and place of holding the election, at usage of the society. The meeting of the

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seventeen members and second organiza- tiff in error or appellant then rises before tion was entirely irregular and without the seven august judicial dignitaries who authority of law or usage, and of course all scrutinize him as if searching to disits return and certificate of election was cover from what species of the animal absolutely null and without effect: 8 Har- creation he descended. The counsel genris 484, Joker v. Com. The said last three erally begins with an abbreviated history

| persons were not legally elected and their of the case, after which he dives into the bond should not be approved.

whirlpool of law in which, when in an The conclusion of the Court, as herein- uphill contest, he flounders until his allotbefore expressed, does not affect the rights ted time expires. If of a vain self-confi—the right of title to the office of trustee. dent and inflated nature, he sits down In this proceeding, the title to that office wreathed in smiles at the recondite legal cannot be determined. That right can only lore he has flung into the presumed vacant be determined by quo warranto, the mode places in the judicial craniums. His imprescribed by law, and if the three per- perturbable spirit is not shocked at the sons who are prevented, by the non-ap- fact that after he has fanfaroneded but a proval of their bond from entering upon few minutes, the Justices put their heads the duties of the office of trustee, think together nonchanantly, or seriously disthey are injured, they can evoke the reme- cuss the question at issue, and pay dy suggested.

about as much attention to the remainder [Judge LIVINGSTON dissents, and ob- of his argument as if it was the product jects to the approval of Nolde et al. bond.] of an automatic fog horn. Since the Court

has ceased asking questions of the attorSupreme Court Proceedings.

neys, the self-sufficient lawyer is safe in

his comtemplations of how much law he The seven Supreme Court Justices taught the Court and of his own legal propossess an austure and dignified mien, and fundity and perfection. If an attorney many a neophyte trembles and stammers becomes offended when the justices hold in his initial effort, but soon discovers that their pow-wows, and stops to reclaim they are more benignant than they look. their attention, the Chief Justice orders

Until a year or two ago, it was the cus- him to proceed, saying that they are listom of the Judges to ply the attorneys tening to his argument but immediately with such a succession of enfilading inter- thereafter relapse into their wanton pracrogatories and hypothetical legal proposi- tice. In the Supreme Court there is no tions, whereby the most learned and ac- inspiration for the orator who is dependcomplished lawyers would sometimes be ent for his flights upon the plauait or embarrassed and discomfited. One of the melted attention of his hearers. Seven ablest of our bar (now deceased) when a statues could not be colder or more earless. clinching and unanswerable legal point That they care little fur oral argument is was put to him, would elude it by stating evidenced by these unmistakable manithat he would come to it presently, but he festations. After the adjournment of the always took his seat without coming to it. Court at 3 P. M., the justices repair to Another when in this predicament usually their respective homes in the city-where got his thumb under his suspenders and the printed arguments are pondered over ; jerked and pulled until relief was afforded and when in subsequent consultation a by a cessation of the judicial bombard- | decision is arrived at, the Chief Justice pient., Another however got his revenge designates one of their number to write by talking so long and tediously that eve- the opinion. The Supreme Court of late ry Judge left his seat except the Chief years sticks less to the bark than formerly. Justice, and he couldn't without adjourn- Very often an attorney is certain of wining the Court. It is needless to say the ning an unjust cause on the ground that long-winded attorney lost his case. the previous rulings of the Court are in

As soon as the argument of a case is i opposition to his side of the case. But concluded, the Chief Justice calls the next every case has its distinguishing feature, case on the printed list. The printed pa- and that feature may make his cause inper books of both sides are handed to the equitable and unmeritorious. In such Judges who hastily persue them so as to cases the Supreme Court rightly tramps get an inkling of the points in controver- down technicalities and overrides precesy, when the Chief Justice sings out, "who dent in order that it may reach substantial opens this case?” The counsel for plain- justice.--York Daily.

VOL. IV.

No. 9

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YORK LEGAL RECORD. ficial and protective purposes, and accord

ing to terms of charter located at HarrisTHURSDAY, MAY 3, 1883.

burg, in the county of Dauphin, Penna.; SUPREME COURT.

thet said defendant, as your petitioner is

advised and claims, is not a Life Insurance Spangler vs. The Pennsylvania Mutual Aid Company, within the meaning of the

statute regulating service of process upon Society Insurance Construction of Act of April can be served with process only under the

such companies, but that said defendant 8, 1868.

statutes regulating service of process upon Suit may be brought in the county where the subject of the risk insured against was domiciled or located, and corporations, generally, that the summons the summons may be served on the company in any other county of the Commonwealth in the mainer pro- in this case has not been served in accordvided by the original Act of April 24th, 1857.

ance with said statutes. He therefore Error to the Court of Common Pleas asks that a rule be granted to show cause of York county.

why the service of the said summons The action is covenant, brought on the should not be set aside and vacated, and second day of August, 1881, to 41 Octo- he will ever pray, &c. J. F. EATON. ber Term, 1881, on a certificate of mem

Sworn to and subscribed before me this bership issued by, and under the corporate 8th day of September, 1881. seal of defendant in error, returnable on the first Monday of September, 1881.

S. W. FLEMING, Notary Public. The præcipe directed the summons to be On this the court granted a rule to directed to the Sheriff of Dauphin Co., show cause why service of summons Pa., where the defendant in error had its should not be set aside, returnable the home office. The summons was sent to second Monday of October, 1881. At the said Sheriff, who made the following re- December Argument Court said rule was turn: "1881, August 8th, served person- argued, and on December 19th, 1881, the ally on W. S. Rutherford, President, and rule to show cause why service of sumJ. F. Eaton, Secretary, of the Pennsylva- mons should not be set aside was made nia Mutual Aid Society, defendant, and absolute. By the Court. Thereupon an gave to each of them a true and attested alias summons was issued to No. 70 Jancopy of this writ, and made known the uary Term, 1882, and served upon the contents. So answers A. Reel, Sheriff.- local and duly authorized agents of the Sworn and affirmed before me. E. B. defendant in error in York. A motion Mitchell, Prothonotary Court of Common was entered to set sside this service, and Pleas of Dauphin County.” Immediately upon the argument of the motion the rule after said service, Messrs. Cochran and was made absolute. Hay appeared "de bene esse for the pur- October 4, 1882. STERRETT, J. The pose of moving to set aside service of single question involved in this contensummons in this case." August 24, 1881, tion is the construction of the supplement narr and copy of policy of insurance in of April 8th, 1868, declaring that all prosuit, &c., filed. On the oth of September, visions of the Act of April 24, 1857, re1881, the following petition under the lating to insurance companies, shall apply corporate seal of the defendant was filed: to life and accident insurance companies. To the Honorable the Judges of the said | The same question was before us in Quinn Court :

v. The Fidelity Beneficial Society : 4 The petition of J. F. Eaton respectfully YORK LEGAL RECORD, P. 33. It is here represents that he is secretary of the held that suit may be brought in the counabove named defendant; that said de- ty where the subject of the risk insured fendant is a corporation created for bene- | against was domiciled or located, in the

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