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tablish the proposition that the testator's posi- Schue paid by reason of his liability as tive direction to sell his real estate, worked an surety upon notes of Lewis Schue, the equitable conversion of it into personalty. When a debt is due to a testator, by a legatee,

sum of $2,454.23, and which is largely in named in the will, upon principle and authority, excess of the share to which he would it is clear that the legatee must discharge the be entitled in this estate. debt, before he can claim the legacy; or in The will of Jacob Schue is dated Auother words, the legacy must first be appiied to gust 2nd, 1880, and provides, inter alia, pay the debt, and the balance belongs to him.

as follows: “The two tracts of land Of course an attaching creditor can rise to no higher position than that occupied by the known as the lower and middle are to be legatee or distributee. Where the legatee or appraised and sold at public sale six heir is entitled to no share of the estate there months or one year after my death, but is nothing to attach.

in two years after my death it must be Exceptions to Auditor's report.

sold. *

My son Jesse Schue, The report of the Auditor, Geo. E. Julian, John, Elizabeth and Lewis and Neff, Esq., on the questions involved, Vanda, these children shall have equally

up to what Henry has already received, was as follows:

and after that share and share alike exYour auditor finds and reports as fol- cepting Simon, who has alrea:ly his part. lows: That Jacob Schue, the decedent,

On the 15th day of December, 1892, died on the lith day of August, 1890, the executors of said Jacob Schue preand that letters testamentary were graned sented a petition to your Honorable to his executors on August 18th, 1890.

Court alleging that testator did not indiThe widow of the testator is also dead, cate in his will by whom the appraisement having died a short time after the testa- of his real estate should be made, and tor's death.

asked that the Court appoint three disinYour auditor held a number of meet- terested and judicious persons, citizens of ings and heard testimony in support of the county of York, to make such apthe claim of Mary C. Schue, plaintiff in praisement. The Court having appointthe judgment and attachment execution ed appraisers in accordance with petition, hereinbefore mentioned, which evidence and the real estate having been appraised is submitted with this report. The con- by them and return of their appraisement tention of the counsel for Mrs. Schue being made to the Court and July conwas that the will of Jacob Schue did not firmed, the executors afterwards sold the work a conversion and therefore the en- same. The balance on this account is the try of her judgment against Lewis Schue, proceeds of the sale of this real estate. the defendant, bound his interest in the Counsel for Mrs. Schue claims the full real estate of the testator. Counsel for the share of Lewis Schue, under and by virexecutors claimed that the will of Jacob tue of her attachment execution, claiming Schue worked a conversion of his real that the will of Jacob Schue di'l not work estate, and that Mrs. Schue by virtue of a conversion of sail real estate. Your her judgment or attachment execution auditor, however, is of the opinion that was entitled to nothing, for the reason the language of the will of the testator that Jacob Schue in his life time, through quoted above, clearly works a conversion. his assignees for the benefit of creditors, Jones v. Caldwell, i Out. 42; Roland v. had paid for said Lewis Schue more Miller, 4 Out. 47; Lindley's Appeal, 6 money than his share of this estate. In Out. 235; Hunt and Lehman's Appeals, support of the claims of the executors, 9 Out. 128; clearly hold that a converthe auditor's report distributing the as- sion of real estate under a will will be signed estate of Jacob Schue was offered implied where there is either an absolute in evidence, as well as considerable testi- necessity to sell in order to execute the mony tending to show the amount of will, or such a blending of real and permoney that was paid by Jacob Schue's sonal estate by the testator in liis will as assignees for Lewis Schue. These pay- to clearly show that he intended to create ments seem to have been all made by a fund out of both real and personal esreason of said Jacob Schue having been tate and did bequeath said fund as money. surety for Lewis Schue. Your auditor Under this will your auditor finds, that finds as a fact from the evidence submit- linasmuch as the testator, through his asted to him, that the assignees of Jacob 1 signees, has paid for Lewis Schue, one


of the legatees, some money that he in excess of his share or legacy, under would be entitled to under the will, and the will; and therefore that Lewis Schue that they are legally and equitably en is entitled to no share, in the distribution. titled to set-off the same against his share Second. The auditor erred in ruling of the estate, he will exclude the said that Mary Schue, the attaching creditor, Lewis Schue and his judgment and at- has no better standing than her debtor taching creditor from any participation Lewis Schue, and is not entitled to any in this distribution.

award, on her attachment execution. To this report the following exceptions

The evidence shows that the testator, were filed :

Jacob Schue, executed his will August ist. That the auditor erred in his find- 2nd, 1880. In it, he ordered his real ings of the facts as to the real question at estate to be sold, within two years after issue, viz. --whether or not Lewis Schue his death. It scarcely requires a citation was indebted to Jacob Schue, under the of authorities to establish the proposition equitable doctrine of subrogation, in the that the testator's positive direction to admitted absence of any legal assignment sell his real estate, worked an equitable from the common debtor to Jacob conversion of his real estate into personSchue's executors.

alty. "The rule is well settled, that land

directed to be converted into money or 2nd. Because the auditor in his finding of facts, has ignored the joint and several money into land, is to be regarded, in nature of the notes, which were paid by which one or the other is to be converted;

equity, as the species of property into the assignees of Jacob Schue--the same not being a proper set-off to the claim of and this rule obtains whether the direcnot being a proper set-off to the claim of tion is given by deed or will;" McClure's Mary C. Schue, the attaching creditor. 3rd. Because the auditor had failed to sell real estate, by a testator, works a

Appeal, 72 Pa. 417. A positive order to state the facts and testimony as presented conversion of the same into personalty by both parties to the controversy-and from the death of the testator; id. merely discussed the evidence ex parte. 4th. The auditor has erred in not clear- father, bequeathed an equal share of tes

Lewis Schue, is, by the will of his ly stating the issue and his findings as to tator's estate, with other brothers and sis

, matters of law, viz: (a! Because he has ignored the legal ters named in said will. The testator died

) . principle that a vigilant attaching creditor (such as Mrs. Schue proves to be) is en- it is found by the auditor, and his finding

After the making of the testator's will, titled to a preference in the distribution is amply sustained by the evidence, Lewis of a deceased ancestor's lands, whether

Schue became indebted to his father's esthe same was converted to money or not; tate in the sum of $2,454.23, an amount

(b) That the legal question of conver- largely in excess of his share of the es: sion was raised by counsel for the executors, and is immaterial and irrelevant in

tate. If Lewis Schue were claiming his

share, he would be entitled to no portion the Jistribution of Jacob Schue's estate to

of his father's estate. his legatees, under his last will and tes

When a debt is due to a testator, by a tament ; (c) The auditor erred in excluding ple and authority, it is clear that the lega

legatee, named in the will, upon princiMary C. Schue, the attachment creditor, from participation and satisfaction to the tee must discharge the debt, before he extent of Lewis Schue's legacy, under can claim the legacy; or in other words, the last will of the said Jacob Schue, de- the legacy must first be applied to pay the

debt, and the balance belongs to him. In ceased.

either form, it must be recognized and C. M. Wolf for exceptions.

discharged; Thompson's Appeal, 42 Pa. Geise, Ziegler & Strawbridge, contra. 345; Harman's Estate, 135 Pa. 441;

March 26th, 1894. BITTENGERR. J.-- Light's Estate, 136 Pa. 211; Sproul's ApThe exceptions may be summarized as peal, 105 Pa. 442. follows: First, to the finding of the fact, Of course an attaching creditor can by the auditor, that Lewis Schue was in- rise to no higher position than that occu• debted to the estate of Tacob Schue, the pied by the legatee or distributee. Where testator, in the sum of $2,454.23, a sum Ithe legatee or heir is entitled to no share

o*k Fegal Rexoxd. by the Board of School Directors, and

is suffering under various disadvantages, Vol. VII. THURSDAY, APRIL 26, 1894. No. 46. under the present organizations.

Though paying nearly half of the of the estate there is nothing to attach. School taxes, and embracing more than “If the legatee is indebted to the estate half the area of the township, that terof the testator in an amount exceeding ritory has but four out of eighteen the legacy given him, the executor has schools, and not a single member of the the same right to set-off such indebted- Board of School Directors. The closely ness against the attaching creditor, as he built up portion of the township has the would have had against the legatee;"voting majority and seems to have used Strong's Executor v. Bass, 35 Pa. 333. it to the exclusion of this territory from

We are of opinion that the auditor's representation on the Board. And these finding of facts and his conclusions of four school houses, at the period of the law are entirely right; and also that the commencement of these proceedings for distribution of the balance for distribu- the erection of an Independent District, tion is correct.

were evidently ill-placed, ill-furnished, The exceptions, therefore, must be dilapidated, without decent water closets, dismissed.

and two of them almost ruinous, as well The exceptions are dismissed and the as probably insufficient in number to acreport of the auditor is confirmed.

commodate the chillren of the territory

intended to be supplied by them. The QUARTER SESSIONS.

Directors-all of them residing in Freys

town—seem to have paid scant attention Springgarden Independent School District.

to these four schools, to have visited them Independent school districts-Creation of but seldom, and to have little regard for -Duties of school directors.

the welfare and comfort of the scholars, Where neither the petition nor the report alleges the existence of any obstacle of a physical and the efficiency of the schools, until character which renders it impossible to pro- partially roused from their indifference vide for the educational interests of the terri- by the commencement of this proceeding. point of fact no such obstacle exists an inde- have been remedied and others not. It is tory under the present organization, and in Since then some of the then existing evils pendent school district will not be created. Where a report has been filed by the com

always a disadvantage to a strictly rural missioners appointed in a proceeding to create and scattered population to be associated an independent school district, a remonstrance for school purposes with a denser urban filed to such report will not be considered. It population. Not only are the educational is not the proper way to attack the report.

wants and necessities widely different, It is the duty of School Directors to erect at but the latter always can and usually does every school house, suitable and convenient water closets, two in number when both sexes exercise control to the exclusion of the attend the school, separated by a close and sub- former from representation in the Board stantial fence at least seven feet in height; and and its consequent great detriment; of all to make provision for keeping said water closets of which this case affords an admirable at all times in a clean, comfortable and healthful condition. Failure to comply with the illustration. Because the educational inprovisions of this act makes the Directors re- terests of this territory have suffered semovable from office by the Court.

rious detriment under the old organizaExceptions to Commissioners' report. tion, and because under an independent N. M. Wanner for report.

organization, there is every reason to beGeise, Ziegler & Strawbridge for ex- lieve that these interests would be proceptions.

moted, I would sustain this report and February 20th, 1894. LATIMER, P. J. erect this independent district, if it were —The mass of testimony taken in this possible to do so. case was irrelevant, and entirely unneces- But this is forbidden by both the letter sary to a determination of the legal ques- and the spirit, true intent and meaning of tions involved. But even that adduced the Act of Assembly approved May 20, by the exceptants makes it very apparent 1857, and by the express decision of the that the educational interests of the terri- Supreme Court in the case of Hatfield tory proposed to be erected into an inde- Township School District, 42 Leg. Int. pendent district, have been neglected (277.

mere cxpediency is the rule according to The exceptions to the report of the

Says the Act of Assembly referred to: is in terms the same as the exceptions “The true intent and meaning of the pro- this is not very material. visions of the supplement to the general As the testimony was irrelevant and school law approved May 8th, 1855, for unnecessary each side should pay for its the creation of independent school dis- own depositions. But the costs of the tricts, was and is to provide in a prudent commission and office fees must be paid manner for exceptions to the general rule by the petitioners. and to protect and promote the educa- We deem it well to take this opportuntional welfare of occasional localities that ity to call the attention of School Direcfrom natural or other adequate obstacles, tors throughout the county to the manjacannot be properly provided for under tory provisions of the Act of Assembly the organization of township districts."

approved 6th June, 1893, requiring the Says Mr. Justice Clark in the case re-'erection, at every school house, of suitferred to supra, “When no natural or able and convenient water closets, two in other adequate obstacle prevents proper number when both sexes attend the provision in the general common school school, separated by a close and substanorganization of a township, no independ- tial fence at least seven feet in height; ent school district could be created. The and also requiring the Directors to make existence of such an obstacle is an affir- provision for keeping said water closets mative, substantive and essential fact in at all times in a clean, comfortable and the proceeding; a fact which must appear healthful condition. Failure to comply in order to obtain a decree. It may be with the provisions of this act makes the expedient to form a district where no real Directors removable from office by the necessity exists for it; but necessity not Court. which the right is to be determined. The Commissioners are sustained, the report facts which will justify a court in an in- is set aside, each party to pay for their terference with the general organization own depositions, and the officers' fees and of the schools are particular and spec- costs of the commission to be paid by the ific, and they should appear. The record petitioners. should exhibit the nature of the obstacle February 26, 1894. BITTENGER, J.alleged, which, whether naturai or artifi- I am of opinion that both the petition cial, cannot be of any other than a physi- and report are defective under the Acts cal character."

of 1855 and 1857, applicable to the erecIn this case neither the petition nor the tion of independent school districts, and report alleges the existence of any ob- the construction of those acts of assemstacle of a physical character which ren- bly, by the Supreme Court. They do not ders it impossible to provide for the edu- show the existence of any obstacle of a cational interests of this territory under physical character, which renders the the present organization, and in point of erection of the independent district necesfact no such obstacle exists. All that has sary, or which would justify the court in been made out by the report, even giving sustaining the report. due weight to the depositions, is a case All well founded ground of complaint of expediency and not necessity for this can be remedied in the present district; independent district and hence the report and the Directors should give their immust fall. It is manifest that all the evils mediate attention to providing a sufficifor which this territory is suffering in its ency of suitable school houses and educational matters can be fully and schools at proper localities, and the neceseasily cured under the present organiza- sary improvement to the grounds; and tion if the school board will do their duty furnishing the school houses. Water fairly and impartially.

closets should be constructed according The remonstrance must be disregarded to the provisions of the Act of 1893, and both because filed without notice and op- all sections of the district should be treatportunity to reply and because it is not ed fairly and impartially. the way to attack the report. As well I concur with the learned President file a remonstrance to a report of road Judge, in sustaining the exceptions and viewers. As however the remonstrance setting aside the Report, together with

disposition made of the costs of the pro- competent witnesses after the death of ceedings.

the grantee to testify, that the deed was a

forgery, and that on the day of the alAbstracts of Recent Decisions. leged acknowledgment they were not in

the county specified in the certificate. (Cases not otherwise designated are Sutherland v. Ross, 10 Montgomery Co. Supreme Court cases.)

Law Reporter 63.

Foreign attachment-Costs - Counsel Assignment-Duress-Assignee.- An fee.-Where the garnishees in foreign atassignment of a chose in action by a tachment acted in good faith under addebtor to a creditor will not be set aside vice of counsel in making their defense, on the ground of duress where the assign- although the jury and the court decided ment was the result of a threat by the against them, the court will not direct creditor to arrest the assignor, but the them to pay the costs. The fact that one evidence did not show that there was any of the garnishees did not file ary answer arrest of the person, or process of arrest, does not alter the case, as the plaintiff or prosecution for any criminal offence could have compelled him to do so before instituted or that there was any officer the issue was joined.-Haller's Ex. v. of the law ready to arrest, and that the Regan, et al. (Lancaster C. P.) 11 Lanthreat was not made Jirectly to the debtor caster Law Review 145. but to a friend who communicated it to Judgment - Opening of - Laches. him. An assignee for the benefit of Where a judgment was taken for want of creditors has no standing to plead duress an affidavit of defence on September 9, of his assignor for the purpose of setting 1890, and the motion to open the judgaside an oiherwise legitimate transfer of ment was not made until May 31, 1892, property made by the assignor to pay an it will not be allowed unless the deposihonest debt.-Phillips v. Henry, 10 tions show a clear and meritorious deMontgomery County Law Reporter 62. fence. A mere denial of indebtedness

Constitutional lace-Township roads- will not be sufficient.-Ware v. Baldwin, Act of June 12, 1893, P. L. 451.—The (Luzerne C. P.) 7 Kulp 278. act of June 12, 1893, P. L. 451, entitled Mechanics' lien-Affidavit of defence. “An Act enabling the taxpayers of town- -A mechanics' lien having been filed, the ships and road districts to contract for contractor filed an affidavit of defence making, at their own expense, the roads which, if supported by the facts, would and paying salaries of township or road be a good defence to the lien. The owndistrict officers and thereby preventing er filed no affidavit of defence and judgthe levy and collection of road tax there- ment was taken against him by default. in," is a law regulating the affairs of The contractor then askeci to have townships, and violates section 7, article this judgment stricken off. The motion III of the constitution, because it will be was refused because the judgment could productive of local and special results: I not prejudice the contractor if he had a (1) as to the care of the roads and defence to the lien. An owner cannot by bridges; (2) as to the compensation of consent authorize the filing of a mechanthe township officers.-In Re Lehigh V'al- ics' lien to the prejudice of the contracley Coal Co. (Luzerne Q. S.) 7 Kulp 271. tor or material men.-Kimes & Co. 7'.

Court-Rules of-Proof.-A court has Walt, (Montgomery C. P.) 10 Montthe power to make a rule allowing writ-gomery County Law Reporter 12. ten instruments on which suit is brought Mechanics' lien-Sunday-Addition.to be admitted in evidence without proof A release of mechanics' liens signed on of execution, when the execution has not Sunday is binding, the contract being exbeen denied or notice given that such ecuted. A mechanics' lien was filed proof would be required.-Medary v. against a building and shed described as Mathers, 10 Montgomery County Law "the whole constituting a brewery,” and Reporter 67

that the materials were furnished "for Deed- Acknowledgment - Evidence and about the erection and construction

, -Where the date of the acknowledgment of the said building." The claimant has of a deed is within the life time of the released the brewery building but claimgrantee, the grantor and his wife are not ed a lien for work done to the shed.


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