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only $83.66, and the judgments recov- Purl. Dig. 994, pl. 103; the defendants, ere l amounted to nearly $175.00. who were these accountants, having ap

2. The auditor erred in allowing a peared after judgment before the justice, civilend on any and all of said claims, and declared that they had not sufficient because, as appears, the Justice ( Bow- assets to satisfy the judgments, it seems man) neglected or refused to enter said that the Prothonotary refused to receive declaration of insufficiency of assets on and file the transcripts because his fees his docket and on said the record of said ! for so doing were not paid in advance. judgments.

It is unnecessary to decide whether he 3. The allowance of a dividend to had the legal right to so refuse. His Philip S. Bowman on his claim of $6.52 action certainly cannot preju lice the is objected to specially because, as ap- rights of the plaintiffs in those judgments pears from said records, the judgment to participate in this distribution. The therefor was sued for before the said auditor's report does not indicate that Philip S. Bowman himself.

objection was made before him to the 4. The allowance of divi.lends on the non-production of the justices' dockets or claims of Lewis D. Sell, Esq., is also to the quantum of any of the claims. specially objected to, as there is no evi-. The objections being specific, it must be dence whatever of any claim for costs or presumed that the auditor's report fully anything else being due him.

states them. 5. Nor is there any evidence to sus For the reasons stated the exceptions tain the claim of Constable Wonders. to the auditor's report of distribution are 6. Nor of that of F. S. Zinn.

dismissed and the auditor's report con7. The auditor neither sets forth, firmed. finds, nor refers to any sufficient facts or evidence to support said claims or any of

Meyer's Estate, No. 2. them.

Will, Construction of-Interest on legacy.

The testator provided inter alia as follows: 8. He erred in not awarding the net give and bequeath to my grandson, Jacob Weidman, balance of said assets to Clarissa Ken- five hundred dollars over and above his full share of

all the other heirs of my daughter Rebecca and my son nedy, widow of the testator.

John, the same to be paid to the said Jacob Weidman, 9. No record of said alleged judgments

my grandson, as soon as he shall arrive at the age of

After the death of my were filed and entered of record as re- two children aforesaid said twenty-thrie acres of land quired by law.

shall be appraised by a jury of six persons---said jurors

shall be appointed by the Court and after such ap10. The exceptor reserves leave to file praisement shall have been made my grandson, Jacob

Weidman, shall have the choice of taking said land at other and ad litional exceptions.

the appraisement, if he thinks proper, he paying the 11. No officially certified copy or copies other heirs their respective shares out of the same. of said alleged record of judgiments were paid to my grandson, Jacob Weidman, at any time afeither entered on the Prothonotary's |

ter the death of my daughter Rebecca and not before

the same, to be paid out of the land or real estate now docket or even offered, much less ad- in the possession of Michael Weidman, in which said

land I now have an undivided fourth part.” HELD, mitted in evidence.

that Jacob Weidman was only entitled to interest on H. L. & G. G. Fisher for exceptions.

said legacy from the death of John Meyer. W. A. Miller for report.

It is apparent that the legacy was not payable until

after the death of John Meyer. June 8th, 1893. LATIMER,

fourth interest, mentioned in the will, could not be

P. J.-- | appraised and taken by Jacob Weidman at the appraiseWhile the report is meagre, and does not ment; and as it was to be paid out of the interest or state with desirable clearness and pre- It was necessary to realize sufficient money to pay said cision the questions passed upon by him, legacy out of said interest or land, either by Jacob

Weidman taking it at the appraisement, or on its sale, yet to recommit it 'would probably result in case of his refusal to accept. in the consumption of the entire balance have meant to order it to be paid until it became pos

sible to pay it out of the proceeds of the fourth interon the account in costs of audit. The est in the land. ends of justice, I think, can be secured Rule to show cause why the undivided without recommitment.

I one-fourth part of a tract of land describThe question raise:1 before tlie auditored in the petition of Jacob Weidman seems from the report to have been as to should not be decreed to the petitioner the legal effect of the refusal by the Pro- upon the conditions set out in said petition. thonotary to file the transcript of certain The construction of the will of this judgments obtained before Esquire Bow- testator, of which only a part is given in man, certified by the justice under the this case, was before the Court (LATI4th Section of the Act of 20 March, 1810, MER, P. J.), as to the interest of the chil

twenty-one years.

Before that time the

The testator could not

dren of Rebecca Meyer, intermarried with brother, John Meyer, according to his Michael Weidman, where it was decided will recorded in the Register's office of that the form occupied by John went to York county, which will more fully his children exclusively and the form appear Juring the natural life of my occupied by Rebecca went to her children daughter Rebecca and also the natural exclusively. This decision was affirmed life of my sin-in-law, Michael Weidman, by the Supreme Court in Hiestand v. and after the death of my daughter Meyer, 6 YORK LEGAL RECORD 55. Rebecca I then give and bequeath to my

When the appraisement of the fourth grandson, Jacob Weijlman, five hundred interest as provided in his will, of the dollars over and above his full share of farm in possession of Michael Weidman all the other heirs of my daughter Rebecwas made, the appraisers, acting unler ca and my son John, the same to be paid the language of the will, appraised it as to the said Jacob Weidman, my grandson, a fourth interest in 92 acres of land more as soon as he shall arrive at the age of or less, at $130 per acre. It appearing twenty-one years, out of my estate after -by the draft that the farm contained 100 the death of my son John and after the and 87 perches, it was held by the Court, death of my daughter Rebecca, then I (BITTENGER, J.) that the discrepancy order and direct that all my land or real was too great, and the appraisement was estate, situate in Springgarden township, set aside. It was also held that under the lan- children of my son John and the children

shall be equally divided between the guage of the will an inquest by the of my daughter Rebecca, inter-married Sheriff was the proper method of making aforesaid, share an 1 share alike, after the appraisement, and that such inquest first paying my grandson, Jacob Weidcoull be held under the direction of his deputy. See Meyer's Estate, 5 YORK man, the five hundred dollars aforesai :) LEGAL RECORD 150.

as soon as he shall arrive at the age of A second appraisement having been wenty-one years aforesaid, and also all

the interest in land which I have now in held, and Jacob Weidman desiring to accept said land at the appraisement, possession of Michael Weidman shall be presented his petition, asking the Court divided among the children as aforesaid

share and share alike, also after the to decree said tract to him, less his legacy of $500 and interest from the death of death of my son John an.) my daughter Rebecca Weidman, upon paying costs Rebecca aforesaid, I give anî bequeatlı and expenses and one-half of such valua- to my wife Elizabeth during her natural tion, less said deductions, to Mary E. life the interest of the one-third of all my Hiestand.

real and personal estate, to be paid to Mary E. Hiestand denied his right to her yearly and every year. I also direct interest on the legacy, except from the that a private road be opened from the death of John Meyer.

turnpike and along the line between my James Kell for rule.

land and the wilow Meyer land, said R. J. Gibson and I'. K. Keesey, contra. road to be twenty feet wide and for the

February 20, 1893. BITTENGER, J.— use of land and premises now in possessThe petition is based on the last will and ion of Michael Weidman, the undivided testament of Jacob Meyer, late of Spring- fourth part of the land bequeathed to me garden township, York county, Pa, de- by my brother, John Meyer, and now in ceased. This will was proven on the possession of Michael Weilman, about 21st day of January, A. D. 1842, in the twenty-three acres, after the death of my office of Register of Wills of York coun- two children aforesaid said twenty-three ty, Pa., and is recorded in will book S, acres of land shall be appraised by a jury page 244, &c.

of six persons-said jurors shall be apThe material portion of said will affect- pointed by the Court and after such aning this proceeding is as follows: "I also praisement shall have been made my give and bequeath unto my daughter grandson, Jacob Weilman, shall have the Rebecca, inter-married with Michael choice of taking said land at the appraiseWeidman, and to their heirs the undi- ment, if he thinks proper he paying the vided fourth part of the land which was other heirs their respective shares out of bequeathed to me by my deceasell the same. After the death of my son

Vol. VII.

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Work Legal Record, and if so, for what length of time? His

right to interest is denied by Mary E. THURSDAY, AUG. 24, 1893. No. 11 Hiestand, except from the death of John

Mever. John my daughter-in-law Leah, his

To determine the right to interest, or present wife, shall have sixty dollars

the converse,

we must ascertain the yearly and each year during her natural intention of the testator, from his will. life, to be paid out of my whole estate. As we gather said intention from the But if my daughter-in-law Leah should language of the will

, it was as follows: marry again then the payment of sixty The $500 was not to be paid to Jacob dollars aforesaid shall cease and end. Weidman until his arrival at the age of The aforesaid five hundred dollars to be

twenty-one years; and further, not at pail to my grandson, Jacob Weidman, at that age, until after the death of John any time after the death of my daughter Meyer and Rebecca Weidman, when the Rebecca and not before the same, to be fourth interest in the tract of land menpaid out of the land or real estate now in tioned in the will, was to be appraised the possession of Michael Weidman, in and the $500 to be paid out of said land which said land I now have an undivided

or real estate, which was, at the time of fourth part."

the making of the will, in the possession The following are the dates of the of Michael Weidman. death of parties, in interest, named in

Jacob Weidman claims to retain interthe will: Rebecca Weidman, April 26, 1878; Michael Wei Iman, in the year A. death of his mother, Rebecca Weidman,

est on said legacy from the date of the D. 1880; John Meyer, October 24, 1890; because the will says it was to be paid at his wife Leah having died previous to

any time after the death of the testator's that time.

daughter, Rebecca. Jacob Weidman, the petitioner, an

It is apparent that the legacy was not Mary E. Hiestand, are the only children

payable until after the death of John of said Rebecca Weidman.

Mever. Before that time the fourth After the death of said John Meyer interest, mentioned in the will, could not appraisers were appointed to value and be appraised and taken by Jacob Weidappraise said one-fourth interest in said

man at the appraisement; and as it was tract of land an] they appraised the same to be paid out of the interest or land, it at $3,330.57, which appraisement has could not be paid before the appraisebeen confirmed by the Court.

ment. It

necessary to realize Jacob Weidman desires to accept said sufficient money to pay said iegacy out fourth interest in said tract of land at the of said interest or land, either by Jacob appraised value thereof, and upon his Weidman taking it at the appraisement, petition this rule was granted, to show

or on its sale, in case of his refusal to cause why said interest should not be

accept. The testator could not have decreed to him at sai] valuation, upon meant to order it to be paid until it behis paying out of the same the costs and came possible to pay it out of the proexpenses of the inquest and proceedings ceeds of the fourth interest in the land. in this court, amounting to the sum of In the absence of a direction by the $180.00, and the petitioner's retaining testator that interest shall be paid on a out of the valuation money the legacy of legacy, it bears interest from the date at $500, bequeathed to him in the will, which it is payable, by the terms of the with interest from the death of Rebecca will; Whiteside's App. 23 Pa. 114. The Weidman; and upon the petitioner pay- exception to the rule is when the law ing to Mary E. Hiestand the one-half of infers an intention to pay interest from the balance of such valuation remaining the relation of the testator to the legatee; after the deductions aforesaid.

Page's App. 71 Pa. 402. At the argument some objection was These being our views of the law, developed to the amount of the costs applicable to this case, the rule cannot be stated in the rule. The main question made absolute. to be determined is whether the petitioner, Interest may be allowed from the death Jacob Weidman, shall be permitted to of John Meyer, October 24, A. D. 1890. Jeduct and retain interest on his legacy, i This is certainly liberal, in favor of the

was

O. C. of

my

petitioner, but we do not understand that The widow died before the youngest this is seriously controverted by Vary E. child attained his majority. The seventh Hiestand, the other party in interest. clause of the will provides for this very

Upon the payment of all iegal costs contingency: “If the widow should die and expenses of the appraisement and before my youngest child should attain the proceedings in this Court, and the the age of twenty-one years, payment or the securing of the same to it shall be the duty of my trusices and I Mary E. Hiestand, his sister, of one-half | hereby direct them to make application of the balance of the valuation money of immediately to the proper court for the said one-fourth interest in land appraised appointment of a guardian of the person as aforesaid, less the legacy of $500, pay- of all my minor children, and my said able to the petitioner, with interest from trustees are hereby directed to pay any October 24, 1890, we will decree said such guardian appointed as aforesaid so undivided fourth interest in said tract of much of the residue of my income * * * land described in the proceedings to said as may be necessary for the proper mainJacob Weidman, his heirs and assigns, tenance and education of my said minor as prayed for.

children." That the trust is to continue

cluring such minority is shown by the Montgomery Co. Barnes' Estate.

proviso: "If the duties of such guardianIl'ill, Construction ofTime of payment. "rustee under this will, I would suggest

ship will not interfere with the duties of The testator devised his estate to executors in trust to collect the income and pay the same to his widow for the appointment of my son, John Joseph the maintenance of herself and minor children; if she Barnes, as such guardian.” should die or remarry during the minority of any i of the children, the income to be paid to the guardian The ninth clause provides for distribuof the minors for their maintenance.

He directed that the balance of the income should ac tion as soon as the youngest child reaches cumulate until "my youngest child shall have attained the age of twenty-one years. It is true, the age of twenty-one years, or until the decease of beloved wife if she should remain my widow so long."

this direction is based upon the conmy youngest child shall have reached the age of foren tys tingency that the widow may remarry one years to make equal distribution.” Held, that before the youngest child becomes of age,

with the youngest child, although widow died before that time but it is entirely consistent

The widow having died, an application was made by former provision of the clause, which certain children of the decedent, before the youngest speaks of accumulations during minority child was of age, for a citation to compel the sale and i distribution of decedent's estate, which was refused. or until the decease of the widow, should Petition for a citation.

she remain unmarried to the time of her

death. Im. F. Solly, Esq., for rule.

The testator provides for three conChilds & Evans, Esqs., contra.

tingencies: 1. death of the widow before May 15, 1893. Swartz, P. J.-A the minors are all of full age; 2. remarcareful reading and study of the will of riage of the widow, and 3. death of the James Burnes brings us to the conclusion widow after the children are all of full that distribution is not to be made until age. In the first part of the ninth clause the voungest child attains his majority. he considers the third contingency, and This intent of the testator manifests itself declares that his estate is to accumulate throughout the will.

until the youngest child attains his maThe son, John Joseph Barnes, is given jority, or until the widow's death, "if the stock in the store at an appraised this can be done consistent" with other value, and has seventeen years in which directions. Accumulations are to continue to pay for the same. At the time the at all events during minority, and, if will was executed the youngest child was possible, beyond that period, should the but four years old. By directing pay- widow still live. The testator speaks of ment "within the period of seventeen accumulations, not distribution, and he years," the funds would reach the exec- does not mean to contradict his former utors' hands in time for the period fixed provisions as to the time of division, but for distribution. The seventeen years expresses a desire to postpone the time of were not arbitrarily selected, but con-' 'istribution in the event his widow should stituted the period he had in mind during live beyond the period of time when all which the estate was to remain in the the children have attained full age. Read hands of trustees.

in this light, there is nothing in the ninth

In

a

clause to sustain a distribution during the no instance of not succeeding in it, but minority of any child.

where there is no proof of title in the The citation is refused, and the petition plaintiff.” 2 Lead. Cas. Eq. 906, 4th is dismissed.

Am. Ed.

True, these citations refer to partition 0. C. of

Northampton Co. proceedings in a court of equity, but it is Dech's Estate.

familiar law that the orphans' court in Decedents' Estates-Partition Jurisdic- matters within its jurisdiction, proceeds tion of Orphans' Court.

on the same principles as a

a court of case fairly within the jurisdiction of the equity. The remaining objection to the Orphans' Court an inquest of partition is a matter of petition may be disposed of in a few right. In such case the court is bound to grant parti. tion and has no discretion to refuse it.

words. It is too clear for argument, Sur petition for an inquest of partition under the authorities, that the will does

not work a conversion of the real estate; June 5, 1893. SCHUYLER, P. J.-In Perot's Appeal, 102 Pa. 235; Hunt's the last will and testament of the deced- Appeal, 105 Pa. 128. That the petient it is provided as follows: "Item, I tioner's codevisee, and his co-executor give, devise, and bequeath unto my son, desire that the real estate should be sold Samuel W. Dech, and to my daughter, under the power contained in the will Levina, intermarried with Joseph Seem, weighs as nothing in the scale against their heirs and assigns forever, all my the vested right of the petitioner to have property, real, personal, and mixed, of partition. There is nothing else calling what nature and kind soever, and where- for notice. However much therefore we soever the same shall be at the time of might feel inclined on the facts before us my death, share and share alike. And I to favor the respondent we are powerless do hereby authorize and empower my to do so, for jurisdiction goes before disexecutors hereinafter named and the cretion. But we cannot see how the survivor of them to sell and dispose of all respondent is harmed. The petitioner is my real estate at public or private sale.". amply responsible, and if in his capacity Then follows the appointment of the said as executor he refuses to make a just Samuel W. Dech and Jacob B. Kemerer, and equal division with her of the perEsq., as executors. The only real estate sonal estate under the will, there is a of which the decedent died seized is a very simple and effectual way of bringhouse and lot in the borough of Bethle- ing him to a sense of duty by citing him hem, and it is of this property that the to file his account, and by pursuing the said Samuel W. Dech now seeks parti- familiar steps that follow in such cases. tion.

Mr. Kemerer need not be involved in that It is objected to the petition that the proceeding, but might be greatly relieved petitioner has appropriated to his own use by it, while the proceeding will have the personal property belonging to the estate advantage of being undoubtedly within to an amount far in excess of his share of the jurisdiction of the court. the real and personal estate combined, Inquest awarded. and that he ought not to have partition of the real estate until he has first made

QUARTER SESSIONS. just and equal partition of the personal property as provided by the will. This objection goes on the assumption that 9. S. of

Schuylkill Co.

Summa's License. the awarding of an inquest of partition rests in the discretion of the court. Un- Retail liquor license_Transfer thereof, fortunately for the respondent the law is

Not recicwable by Supreme Court-the other way. “It is now well settled i

Certiorari does not supersede. that the remedy of partition in equity is

Where a retail liquor license was granted for a full

year, and the licensee, during his term of lease, aba matter of right. This rule means that sconded, the license may be transferred to the owner assuming that the case is fairly brought of the licensed premises notwithstanding that creditors

of the licensee offer an applicant who is willing to within the law authorizing partition, a pay a considerable sum for the same. court of equity is bound to grant partition !

In such case the court may require the transferee to

pay to the parties legally entitled thereto so much of and has no discretion to refuse it”;. 2 the license fee as is proportioned to the unexpired part Beach Mod. Eq. Jur. $ 983. “A bill for of the term.

The power of courts of quarter sessions to transfer partition is a matter of right, and there is licenses, even without the consent of the licensee, is dis

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