tablish the proposition that the testator's posi- Exceptions to Auditor's report. was as follows: Your auditor finds and reports as follows: That Jacob Schue, the decedent, died on the 11th day of August, 1890, and that letters testamentary were graned to his executors on August 18th, 1890. The widow of the testator is also dead, having died a short time after the testator's death. Schue paid by reason of his liability as surety upon notes of Lewis Schue, the sum of $2,454.23, and which is largely in excess of the share to which he would be entitled in this estate. The will of Jacob Schue is dated August 2nd, 1880, and provides, inter alia, as follows: "The two tracts of land known as the lower and middle are to be appraised and sold at public sale six months or one year after my death, but in two years after my death it must be sold. * * * * My son Jesse Schue, Julian, John, Elizabeth and Lewis and Manda, these children shall have equally up to what Henry has already received, and after that share and share alike ex cepting Simon, who has already his part.' being made to the Court and duly confirmed, the executors afterwards sold the same. The balance on this account is the proceeds of the sale of this real estate. On the 15th day of December, 1892, the executors of said Jacob Schue presented a petition to your Honorable Court alleging that testator did not indicate in his will by whom the appraisement of his real estate should be made, and 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 was that the will of Jacob Schue did not work a conversion and therefore the entry of her judgment against Lewis Schue, 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 did not work estate, and that Mrs. Schue by virtue of a conversion of said real estate. 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 assigned estate of Jacob Schue was offered in evidence, as well as considerable testimony tending to show the amount of money that was paid by Jacob Schue's assignees for Lewis Schue. These payments seem to have been all made by reason of said Jacob Schue having been surety for Lewis Schue. Your auditor finds as a fact from the evidence submitted to him, that the assignees of Jacob Your sion of real estate under a will will be implied where there is either an absolute necessity to sell in order to execute the will, or such a blending of real and personal estate by the testator in his will as to clearly show that he intended to create a fund out of both real and personal estate and did bequeath said fund as money. Under this will your auditor finds, that inasmuch as the testator, through his assignees, 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 of the estate, he will exclude the said Lewis Schue and his judgment and attaching creditor from any participation in this distribution. To this report the following exceptions were filed: Ist. That the auditor erred in his findings of the facts as to the real question at issue, viz.—whether or not Lewis Schue was indebted to Jacob Schue, under the equitable doctrine of subrogation, in the admitted absence of any legal assignment from the common debtor to Jacob Schue's executors. 2nd. Because the auditor in his finding of facts, has ignored the joint and several nature of the notes, which were paid by the assignees of Jacob Schue--the same not being a proper set-off to the claim of Mary C. Schue, the attaching creditor. 3rd. Because the auditor had failed to state the facts and testimony as presented by both parties to the controversy—and merely discussed the evidence ex parte. 4th. The auditor has erred in not clearly stating the issue and his findings as to matters of law, viz: Second. The auditor erred in ruling that Mary Schue, the attaching creditor, has no better standing than her debtor Lewis Schue, and is not entitled to any award, on her attachment execution. The evidence shows that the testator, Jacob Schue, executed his will August 2nd, 1880. In it, he ordered his real estate to be sold, within two years after his death. It scarcely requires a citation of authorities to establish the proposition that the testator's positive direction to conversion of his real estate into personsell his real estate, worked an equitable alty. "The rule is well settled, that land directed to be converted into money or money into land, is to be regarded, in which one or the other is to be converted; equity, as the species of property into and this rule obtains whether the direction is given by deed or will;" McClure's sell real estate, by a testator, works a Appeal, 72 Pa. 417. A positive order to conversion of the same into personalty from the death of the testator; id. father, bequeathed an equal share of tesLewis Schue, is, by the will of his tator's estate, with other brothers and sisters named in said will. The testator died August 11th, 1890. (a) Because he has ignored the legal principle that a vigilant attaching creditor After the making of the testator's will, (such as Mrs. Schue proves to be) is enit is found by the auditor, and his finding titled to a preference in the distribution. of a deceased ancestor's lands, whether Schue became indebted to his father's esis amply sustained by the evidence, Lewis the same was converted to money or not; tate in the sum of $2,454.23, an amount (b) That the legal question of conversion was raised by counsel for the executate. If Lewis Schue were claiming his largely in excess of his share of the estors, and is immaterial and irrelevant in the distribution of Jacob Schue's estate to his legatees, under his last will and testament; share, he would be entitled to no portion of his father's estate. When a debt is due to a testator, by a (c) The auditor erred in excluding legatee, named in the will, upon princiMary C. Schue, the attachment creditor, ple and authority, it is clear that the legafrom participation and satisfaction to the tee must discharge the debt, before he from participation and satisfaction to the can claim the legacy; or in other words. extent of Lewis Schue's legacy, under the last will of the said Jacob Schue, de- debt, and the balance belongs to him. In the legacy must first be applied to pay the either form, it must be recognized and discharged; Thompson's Appeal, 42 Pa. 345; Harman's Estate, 135 Pa. 441; Light's Estate, 136 Pa. 211; Sproul's Appeal, 105 Pa. 442. ceased. C. M. Wolf for exceptions. Geise, Ziegler & Strawbridge, contra. March 26th, 1894. BITTENGERR, J.The exceptions may be summarized as follows: First, to the finding of the fact, by the auditor, that Lewis Schue was indebted to the estate of Jacob Schue, the testator, in the sum of $2.454.23, a sum Of course an attaching creditor can rise to no higher position than that occupied by the legatee or distributee. Where the legatee or heir is entitled to no share Zork Legal Record. by the Board of School Directors, and is suffering under various disadvantages, Vol. VII. THURSDAY, APRIL 26, 1894. No. 46. under the present organizations. The exceptions, therefore, must be dismissed. The exceptions are dismissed and the report of the auditor is confirmed. QUARTER SESSIONS. 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, dilapidated, without decent water closets, and two of them almost ruinous, as well as probably insufficient in number to accommodate the children of the territory intended to be supplied by them. The Directors-all of them residing in Freystown-seem to have paid scant attention to these four schools, to have visited them but seldom, and to have little regard for the welfare and comfort of the scholars, and the efficiency of the schools, until partially roused from their indifference by the commencement of this proceeding. Since then some of the then existing evils have been remedied and others not. It is always a disadvantage to a strictly rural. and scattered population to be associated for school purposes with a denser urban population. Not only are the educational but the latter always can and usually does wants and necessities widely different, 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. Springgarden Independent School District. Independent school districts-Creation of -Duties of school directors. Where neither the petition nor the report alleges the existence of any obstacle of a physical character which renders it impossible to provide for the educational interests of the territory under the present organization, and in point of fact no such obstacle exists an independent school district will not be created. Where a report has been filed by the commissioners appointed in a proceeding to create an independent school district, a remonstrance filed to such report will not be considered. It is not the proper way to attack the report. It is the duty of School Directors to erect at Exceptions to Commissioners' report. February 20th, 1894. LATIMER, P. J. -The mass of testimony taken in this case was irrelevant, and entirely unnecessary to a determination of the legal questions involved. But even that adduced by the exceptants makes it very apparent that the educational interests of the territory proposed to be erected into an independent district, have been neglected rious detriment under the old organization, and because under an independent organization, there is every reason to believe that these interests would be promoted, I would sustain this report and erect this independent district, if it were possible to do so. But this is forbidden by both the letter and the spirit, true intent and meaning of the Act of Assembly approved May 20, 1857, and by the express decision of the Supreme Court in the case of Hatfield Township School District, 42 Leg. Int. 277. As the testimony was irrelevant and unnecessary each side should pay for its own depositions. But the costs of the commission and office fees must be paid by the petitioners. 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 school law approved May 8th, 1855, for the creation of independent school districts, was and is to provide in a prudent manner for exceptions to the general rule and to protect and promote the educational welfare of occasional localities that from natural or other adequate obstacles, cannot be properly provided for under the organization of township districts." the We deem it well to take this opportunity to call the attention of School Directors throughout the county to the mandatory provisions of the Act of Assembly 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 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. The exceptions to the report of the mere expediency is the rule according to 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 erection of independent school districts, and the construction of those acts of assembly, by the Supreme Court. They do not show the existence of any obstacle of a physical character, which renders the erection of the independent district necessary, or which would justify the court in sustaining the report. In this case neither the petition nor the report alleges the existence of any obstacle of a physical character which renders it impossible to provide for the educational interests of this territory under the present organization, and in point of fact no such obstacle exists. All that has been made out by the report, even giving due weight to the depositions, is a case of expediency and not necessity for this independent district and hence the report must fall. It is manifest that all the evils for which this territory is suffering in its educational matters can be fully and easily cured under the present organization if the school board will do their duty fairly and impartially. op The remonstrance must be disregarded both because filed without notice and portunity to reply and because it is not the way to attack the report. As well file a remonstrance to a report of road viewers. As however the remonstrance All well founded ground of complaint can be remedied in the present district; and the Directors should give their immediate attention to providing a sufficiency of suitable school houses and schools at proper localities, and the necessary improvement to the grounds; and furnishing the school houses. Water closets should be constructed according to the provisions of the Act of 1893, and all sections of the district should be treated fairly and impartially. I concur with the learned President Judge, in sustaining the exceptions and setting aside the Report, together with disposition made of the costs of the pro- competent witnesses after the death of ceedings. Abstracts of Recent Decisions. (Cases not otherwise designated are Supreme Court cases.) the grantee to testify that the deed was a forgery, and that on the day of the alleged acknowledgment they were not in the county specified in the certificate.— Sutherland v. Ross, 10 Montgomery Co. Law Reporter 63. Foreign attachment-Costs - Counsel Assignment-Duress-Assignee.- An fee.-Where the garnishees in foreign at assignment of a chose in action by a debtor to a creditor will not be set aside on the ground of duress where the assignment was the result of a threat by the creditor to arrest the assignor, but the evidence did not show that there was any arrest of the person, or process of arrest, or prosecution for any criminal offence instituted or that there was any officer of the law ready to arrest, and that the threat was not made directly to the debtor but to a friend who communicated it to him. An assignee for the benefit of creditors has no standing to plead duress of his assignor for the purpose of setting aside an otherwise legitimate transfer of property made by the assignor to pay an honest debt.-Phillips v. Henry, 10 Montgomery County Law Reporter 62. tachment acted in good faith under advice of counsel in making their defense, although the jury and the court decided. against them, the court will not direct them to pay the costs. The fact that one of the garnishees did not file any answer does not alter the case, as the plaintiff could have compelled him to do so before the issue was joined.-Haller's Ex. v. Regan, et al. (Lancaster C. P.) 11 Lancaster Law Review 145. Laches. Judgment Opening of Where a judgment was taken for want of an affidavit of defence on September 9, 1890, and the motion to open the judgment was not made until May 31, 1892, it will not be allowed unless the depositions show a clear and meritorious defence. A mere denial of indebtedness Constitutional law-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 therein," is a law regulating the affairs of townships, and violates section 7, article III of the constitution, because it will be productive of local and special results: (1) as to the care of the roads and bridges; (2) as to the compensation of the township officers.-In Re Lehigh Valley Coal Co. (Luzerne Q. S.) 7 Kulp 271. Court-Rules of—Proof.—A court has the power to make a rule allowing written instruments on which suit is brought to be admitted in evidence without proof of execution, when the execution has not been denied or notice given that such proof would be required.-Medary v. Mathers, 10 Montgomery County Law Reporter 67. ment was taken against him by default. The contractor then asked to have this judgment stricken off. The motion was refused because the judgment could not prejudice the contractor if he had a defence to the lien. An owner cannot by consent authorize the filing of a mechanics' lien to the prejudice of the contractor or material men.-Kimes & Co. v. Walt, (Montgomery C. P.) 10 Montgomery County Law Reporter 12. Mechanics' lien-Sunday-Addition.A release of mechanics' liens signed on Sunday is binding, the contract being executed. A mechanics' lien was filed against a building and shed described as "the whole constituting a brewery," and 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. |