« ПредишнаНапред »
summons may be served on the company October 2, 1882. STERRETT, J. In in any other county of the Common- addition to the remedies thereto provided wealth, in the manner provided by the by law the Act of April 24th, 1857, Purdoriginal Act. It appears by the declara- 802, pl. 53, declares it shall be lawful for tion that the insurance was effected in any one who may have a cause of action York county, and Elizabeth Schlagenhaft, against an insurance company, "to bring the subject of the risk, died there. The suit in any county where the property incourt of that county therefore had juris- sured may be located, and to direct any diction of the cause of action, and there process to the sheriff of either of the was error in setting aside the service of counties of this Commonwealth,” etc.the summons.
Prior to the passage of that Act, the class Decree reversed and procedendo awarded of suitors, intended to be benefitted there
E. W. Spangler and W. C. Chapman, by, was obliged to seek redress in the Esqs., for plaintiff in error.
courts of the county where the insurance Messrs. Cochran & Hay, for defendant companies might be located. This was
generally attended with great inconveniin error.
ence and expense in procuring testimony
and securing the attendance of witnesses Quinn vs. The Fidelity Beneficial Society.
at points very often remote from their Practice-Acts of April 24, 1857 and homes and the locality of this loss. In 1868.
view of these and other considerations, Suit may be brought in the county where the subject of
and for the purpose of providing a suitathe risk insured against was domiciled or located, and the summons may be served on the company in any other ble remedy, the Act of 1857 was doubtcounty of the Commonwealth in the manner provided by the original Act of April 24th, 1857.
less passed ; but, the language employed Error to the Court of Common Pleas did not clearly include life and accident of Schuylkill county.
insurance companies, both of which were This was an action of debt to recover equally within the mischief that required on a policy of insurance or certificate of a remedy, and hence the supplement of membership issued to Patrick Quinn by April 8th, 1868, P. L. 70, was passed, dethe Fidelity Beneficial Society, assuring claring that all the provisions of the forthe life of Francis Quinn, the plaintiff's mer Act "shall apply to life and accident father, in the sum of $2000. The plaintiff insurance companies." resided in Schuylkill county, and the cor- While the legislative intention is not as poration desendant was located in Lancas- clearly expressed as it might have been, we ter county. The writ was directed to and have no doubt the supplement was intendserved by the sheriff of Lancaster county ed to authorize suits to be brought against under the provisions of the Act of April life and accident insurance companies to 24th, 1857, and the supplement thereto of the county where the person insured reApril 8th, 1868, by virtue of which the sided; where the subject of the risk inplaintiff claimed to have a right to bring sured against was domiciled or located. — suit in Schuylkill county against the de- | A consideration of the reasons which fendant. After service and return of the evidently prompted its enactment also writ the defendant obtained a rule to show tends to sustain this view of the supplecause why the proceeding should not be ment. If it is not susceptible of that conset aside for matters of record, and this struction it is utterly nugatory and meanrule was made absolute by the court.
ingless. Such a conclusion would not Exception was taken by the plaintiff to
harmonize with the principle that every the ruling of the court and writ of error taken, assigning the ruling of the court as statute should be so construed as to give
it operation, if the language will permit.
A remedial statute, such as this supple- property terminated when she ceased to ment evidently is, should receive a liberal be his wid ow. interpretation in advancement of the
The effort to prove her an improper remedy contemplated.
person clearly failed. It is true she is In view of these considerations, we are rather illiterate. She cannot write. She of opinion that the learned court erred in cannot read printing unless it be in Germaking the order complained of.
She had not a business education. Decree reversed and procedendo award- In this respect she is like a large majority ed.
of the widows in this Commonwealth.
The Act of Assembly giving the widow Bowersox's Appeal.
the preferred right to administer on the Decedent's Estates—Right of Widow to
estate of her deceased husband, has not
made an imperfect or defective education Administer.
a legal disqualification. A good mind The Act of Assembly giving the widow the preferred right to administer on the estate of her deceased hus- and sound judgment; a knowledge of the band, has not made an imperfect or defective education a legal disqualification.
values of property, and of the practical A knowledge of the value of property, and the practi- business transactions of life, are sufficient cal business transactions of life are sufficient to satisfy the requirements of the statute.
to satisfy the requirements of the statute. Appeal from the decree of the Orphans' All these the appellee has. They will Court of the county of Snyder.
enable her to select competent assistants
and able advisers. This will secure an October 2, 1882. Mercur, J. John efficient and faithful discharge of the trust. Bowersox died intestate. The Register granted letters of administration on his
It is further claimed, inasmuch as she estate to the appellants, one of whom is a has no separate property, that she comes son, and the other a brother of the intes- within the prohibition declared in Corntate. Susannah Bowersox claiming to be propst's Appeal, 9 Casey 537, by reason the widow of the decedent, and the right of insolvency. This is a misapprehension to administer on his estate, appealed to
of the meaning of insolvency. It is not the Orphans' Court. After hearing the the mere absence of property liable to court vacated the letters issued to the ap- seizure on execution. It is the owing of pellants, and ordered that letters be issued
debts in excess of the value of his tangito Susannah Bowersox. Two objections ble property. If he owes no debt he is are made to the conclusions of the court,
not insolvent although he may have one to finding here to be the widow of the
no such property. A young mechanic or decedent, the other to deciding that she laborer out of debt, just starting for himwas a proper person to be entrusted with self, with no property but his knowledge, the management of the estate. We have brawny arm, and energetic will, is not incarefully examined the evidence. We
solvent. Nor is one without visible propthink it amply sufficient to justify the erty, owing no debt, who has acquired a court in finding that she had been mar
learned profession, which he is about to ried to John Bowersox. Not only was
follow. In all these cases, each may by there positive evidence ol the fact of their industry, labor and economy, pay his way
and contract no debts. Without debts marriage ; but they undoubtedly lived together for some twenty years; and the
there can be no insolvency. Poverty and clear weight of evidence shows, as hus- insolvency are not synonymous terms. band and wife during all that time. The The evidence in the present case does apparent desire not to make the marriage not show the appellee to owe a single generally known, is accounted for by the dollar. If anything remains of her husfact that all right to her former husband's | band's estate after paying his debts, she
0. C. of
will have property. That will be in addi- that she cohabited with Randolph after tion to the undoubted security which she she arrived, according to her own testimust give before the letters are issued to mony at the age of twelve years, which her.
would be a sufficient ratification of the Decree affirmed and appeal dismissed marriage to make it binding. It follows, at the costs of the appellants.
then, that the subsequent marriage of the appellee to M. B. Ward was void, and that
the letters issued to her must be revoked. ORPHANS' COURT.
The question then arises as to whether this court should direct to whom new
letters shall issue or only revoke the letters, Allegheny County leaving the register to appoint another Ward's Estate.
administrator. If a female under the age of twelve years enters into a The 31st section of the Act of the 15th marriage contract and ratifies it after she arrives at that of March, 1832, Purd. Dig. 1255, provides age, it is binding upon her. The powers of the register's court are now vested in
that appeals may be taken from the judithe Orphan's Court, and when letters of administration cial acts of the register to the register's are revoked by it, it should direct to whom the new letters should issue.
court, and the 39th section, that such
courts ''may and shall do all such judicial Appeal from the decision of the register acts in all matters lawfully brought before granting letters of administration to Ru
them as belong and of right ought to befena J. Ward as the widow of the dece- long to the office of said register.” The dent.
powers and jurisdiction conferred by these April 19, 1883. Over, J. The appel- sections are in substance the same as by lant alleges that Rufena J. Ward, to whom Act of 7th of June, 1812: Hood on the register issued letters of administra- Ex’rs, p. 473; under which it was held in tion on the estate of M. B. Ward, deceas- Stoever v. Ludwig, 4 S. & R. 201, that ed, as his widow, is not the widow of the when letters were revoked by the regisdecedent, and claims therefore that the ter's court, it should direct to whom new letters should be revoked. It is conceded letters should issue. And as by the 22d by the appellee that prior to her marriage section of Article V, of the Constitution to the decedent she was married to Will- of 1874, register's courts are abolished and iam Randolph, who is still living: but she their powers and jurisdiction are vested in alleges that at the time ceremony was per- the Orphans' Court, it is clear that this formed she was under the age of twelve court should direct to whom the new years, that she never cohabited nor lived letters should issue. with him as his wife, and that the marriage
The appellant, under the intestate laws, was therefore void, and her subsequent is next of kin to the decedent, and is marriage to M. B. Ward valid.
prima facie entitled to administer, and as The burden of proof is upon the ap- there is no doubt as to his competency, pellee to show that her marriage with the new letters must be issued to him. Randolph was void. She has failed to do so, but on the contrary, there can be but little doubt from the evidence that she was over the age of twelve years when the ceremony was performed, and therefore capable of entering into a valid marriage contract. But even if this were not the case, there is very satisfactory evidence
YORK LEGAL RECORD. also proved the death of her husband, and
that she furnished death proof. THURSDAY, MAY 10, 1883.
It appears that the application and the SUPREME COURT.
death proofs had been offered in evidence in another suit brought by this same plain
tiff against the New Era Life Association Fidelity Mutual Aid Association v. Leidig.
of Philadelphia, and those papers were Mutual Insurance-Admission of Policy attached to that record, and are now in
without application-Death proofs. the Supreme Court That suit is still In a suit on a policy of insurance in a Mutual Aid Asso pending. ciation, plaintiff proved notice to defendant to produce the application on which said policy was issued. "Defendant Sufficient has been shown, in our opinfailed to do so, alleging that the application was part of the records of another case, which was now before the Su- ion by the plaintiff in this case, to entitle preme Court. HELD, affirming the Court below, that the policy must be admitted in evidence, notwithstanding the her to recover a verdict for the amount absence of the application.
she claims. And as regards any formality The President of the Association in a letter written to plaintiff's attorney stated that they did not "contest the claim, por refuse to pay it up to this time, but prefer to
of preliminary proofs, as they are called, await developments." and defer payment until another suit now pending against the companies on the same loss
or any other matters which might, under had been determined. Held, affirming the Court below, some circumstances, be necessary for a to be a distinct admission of notice of the loss, and a waiver of proof otherwise necessary.
plaintiff to prove, in order to establish his Error to the Court of Common Pleas of claim, they are in our opinion to be disYork County.
pensed with on account of an acknowledgOn the trial of the case in the Court ment of this claim in the letter written by below, plaintiff offered in evidence the the President of this association to the Certificate of Membership, proved notice counsel of the plaintiff. That letter is on defendant to produce application, dated October 13, 1880, and reads as fol
, proved payment of assessments, death of lows: insured and furnishing of death proofs,
“Edward W. Spanngler, Esq., and also offered in evidence a letter from
Attorney-at-Law, the President of the Association, which is
York, Pa. given in the Court's charge.
Dear Sir :-Your favor of yesterday reDefendant asked the Court for a com
ceived. In answer have to say that we pulsory non-suit, which was refused. have concluded to defer payment of the Defendant then presented some points, have concluded to defer payment of the which are given in the Court's charge.
Ludwig claim until the suits now pending
vs. the Insurance Companies have been The Court below (GIBSON, A. L. J.) brought to final judgment; if they be in charged the jury as follows:
favor of Mrs. Leidig, we will promptly Gentlemen of the Jury :This is an and immediately pay the claim against action of covenant brought by Susan Lei- our association, and for this purpose the dig against the Fidelity Mutual Aid Asso
assessment had been made in order that ciation of Philadelphia.
we may be able to do so. We neither The plaintiff has produced in evidence contest the claim or refused to pay it up the policy of insurance, under the terms, to this time, but prefer to await developof which the association covenants to payments. I understand the suit in the her $2,000 on the death of her husband. United States Court will come up this She has proved to you the payment of month.
Yours truly, the assessment that was sent her for col
L. G. FOUSE, President. lection through their agent in this place, The plaintiff has nothing whatever to it having been the only one that was ever do with any question of abiding the event sent to her. The premium was paid at the of another suit. There is no evidence of time the application was made. She has any agreement on the part of herself to
abide such issue, nor is there any such 2. That inasmuch as the plaintiff has offer in this case. It is an acknowledg. given no evidence, that good and satisment of a claim. We therefore instruct factory proof of the death of said Jacob you, in the absence of any defence, either W. Leidig was duly made and furnished in law or in fact, that you render a verdict to the satisfaction of the defendant, as set in favor of the plaintiff for $2,000.00 forth and avered in her declaration, and with interest.
that as this is necessary to her right to But as matters of fact are to be submit recover, their verdict must be for defen
dant. ted to the jury, there is evidence in this case, in addition to the certificate) which
Ans. We answer this point by saying has been given by the witnesses called that if you believe the witnesses, the death upon the stand, and their credibility is to proofs required by the defendant were be determined by you. Unless you find furnished them; and as these death proofs anything in this case which effects their after notice to the defendants were not credibility, or anything which in your produced bere, and as it is shown they opinion will require you to find other are part of the papers attached to the rewise, then your verdict would be for the cord now in the Supreme Court, this point plaintiff for the amount, with interest is refused. from July 3, 1880. If, however, on look
3. That the plaintiff has not shown that ing at the testimony of these witnesses, as anything was due and payable at the you have heard them testify, you find any time this suit was brought, there being no thing to the contrary, your verdict will evidence to show that sixty days had been be for the defendant.
elapsed from the date of the periodical The defendant has requested the Court mortality assessment first ensuing the
death of said J. W. Leidig, or that any asto charge the jury as follows:
sessment was laid upon the approval of 1. That inasmuch as the certificate or this loss, or that the loss itself was appolicy of Insurance offered in evidence by proved, all of which was necessary to her the plaintiff shows upon its face as well right of recovery. as by Art. 18 from the By-Laws on the Ans. The policy of insurance itself we back thereof, that the application of J. say to you shows the amount due at the W. Leidig on which said certificate issued time this suit was brought, and if the sixty was expressly made part of the contract days had not elapsed at that time, it would of insurance, and the plaintiff having be a matter for the defendant to show and neither given said application in evi- not the plaintiff; and as regards the assessdence nor made any sufficient legal proof ment upon the loss, I think that the letter of its contents, their verdict must be for of the President of this Company defenthe defendant.
dant is sufficient and will answer any obAns. We say to you in answer to this jection that may be made on that ground. point that the certificate or the policy of This point is therefore refused. Insurance was offered in evidence with- 4. That under the pleadings of this case out objection, and that the application, the plaintiff is bound to prove to the satiswhich was given in evidence in another faction of the jury every material averment case and attached to the record now in in her declaration, “that all the conditions the Supreme Court, was not produced and stipulations in said application of J. here after notice having been given to the W. Leidig, and in the said instrument of defendant to produce the same, so that it writing mentioned, necessary to be commight be put in evidence with the policy. plied with and performed according to This point is therefore refused.
the true intent and meaning of said cove