Decedents' e states-Widows' exemp- Recognizances-Recognizance for sup-
tions-Family relations necessary-Evi- port of minor child-Death of recogni-
dence of cause of separation.
zor-Maintenance-Decedent's estate.
Under the provisions of Section 12, of the
Fiduciaries Act of 1917, P. L. 471, the right
to the widow's exemption depends upon the
existence of the family relations at the time
of the death of the decedent, unless the sep-
Set-off-Decedent's estate-Collateral
security-Set-off of undue note secured
aration occurred through the fault of the by a past due judgment of insolvent de-
cedent.
-MITZEL'S
BANK, 177
ADMR. V. PEOPLE'S NATIONAL
Vague and indefinite statements of com-
plaint made by the wife of the decedent, in
the absence of her husband, long after the
conduct complained of and long before the
time of her withdrawal from his habitation,
are not proper evidence to prove that the
separation was caused by the husband's
cruel treatment and indignities offered to her orphans' court.
Decedents' estates-Distribution-Per-
sonal fund-Taxes as preferred claim.
DECLARATORY JUDGMENTS.
Declaratory judgments - Jurisdiction
Under Section 4 (c) of the Uniform De-
claratory Judgments Act, 1923, P. L. 840,
construction of wills (to be within the juris-
diction of the orphans' court) must relate
to the administration of the estate or trust.
-SEDOR ESTATE, 150
Borough taxes have no preference in the
distribution of the personal estate of a de-
cedent and therefore a mortgage creditor
who paid the taxes cannot claim a prefer- of statute-Judges' retirement act of
ence, he being subrogated merely to
rights of the borough.
Declaratory judgments--Construction
June 12, 1919, P. L. 61---Procedure re-
quired to secure compensation-Suspen-
sion of compensation while judge is en-
Decedents' estates-Orphans' court-gaged in business or practice of law.
Adjudication of accounts-Estoppel.
On an audit of an account in a decedent's
estate, a claimant, who had brought suit to
continue the lien on the real estate, pre-
sented his claim and proof. The auditor
finding against him, he filed exceptions and
asked for a precept for an issue to the com-
mon pleas on the suit to continue the lien.
Exceptions dismissed and issue refused.
The claimant having presented his claim
before the auditor, is estopped from another
issue.
-ESTATE OF JAMES M. SCHWOYER, DECEASED,
68
Decedents' estates - Next of kin swers-Equity Rules Nos. 15 and 48.
Great-grandchildren of brothers and sis--GOLDSTEIN
REALTY COMPANY, 3
ters-Intestate Act of 1917.
Under the Intestate Act of June 7, 1917, DESERTION AND NON-SUPPORT.
P. L. 429, there is no representation admitted
among collaterals after the grandchildren of
brothers and sisters, and, therefore, where
Husband and wife-Desertion and
grandnieces and grandnephews of the intes-non-support--Claims for necessities sub-
but great-grandnieces and great-grand- sequent to order-Assumpsit.
tate survive him, with no living grandparent,
nephews also surviving, the latter are not the -CREADY V. REISFAR, 165
next of kin nor can they take by representa-
tion, and, therefore, they take nothing.
-EBLING'S ESTATE, 129
Decedent's estate-Sontract by deced- Summary conviction-Disorderly con-
ent executed after her decease-Will- duct-Attempt to speak and hold a
Gift to individual and a class—“Share | meeting in violation of an order of the
and share alike."
Divorce-Jurisdiction, C. P.- Libel
filed in county of respondent's residence
Decedents' estates-Widows' exemp—Act of April 26, 1905.
tions-Family relations necessary-En-
dence of cause of separation.
Under the Act of April 26, 1905, P. L. 309,
where the libellant resided in Bucks County
when the desertion occurred and the re-
spondent resided in Philadelphia, the courts
of Philadelphia County have jurisdiction.
In such case, the jurisdiction of the courts
of Philadelphia County under the Act of
Divorce Unlawful and malicious de-
sertion Statutory requirements - Fa-1905 is concurrent with that of the courts of
tally defective Proceedings void-Resi- Bucks County under the Act of March 13,
dence-Evidence.
A liable in divorce wherein it was alleged
that "said respondent *** committed
unlawful and malicious desertion, etc." was
held not to comply with the statute and di-
vorce refused. The word "unlawful" is not
necessarily synonymous with "wilful." This
was a fatal defect and rendered all subse-
quent proceedings void.
To support a decree in divorce, there must
be affirmative proof that libellant resided
within the State of Pennsylvania for at least
one whole year prior to filing the libel. The
Whether the desertion occurred in Phila-
delphia or Bucks will depend on whether re-
spondent's desertion began with her refusal
to rejoin her husband in Bucks County while
she herself was living in Philadelphia, or
whether, while both were living in Philadel-
phia, she formed a clear intention to desert,
which intent was carried out by leaving her
husband in Philadelphia.
-ANDERSON V. ANDERSON, 107
Husband and wife-Estate by entire-
fact of residence cannot be inferred. It must ties-Equity-Divorce-Act of May 13,
be established by direct evidence.
-PLUMMER V. PLUMMER, 23
Divorce-Cruel and barbarous treat-
ment not established.
A divorce, on the ground of cruel and bar-
barous treatment, was refused, where the
evidence showed that the parties lived to-
gether without any marital difficulties, until
sven days immediately preceding their sep-
aration, when the respondent made vague
threats of a more or less serious nature
against the libellant, called her opprobrious
names and ordered her out of his house, and
there was no evidence of any bodily injury
to the libellant or impairment of her health
by the acts of the respondent.
-BEAVERSON V. BEAVERSON, 26
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Where a husband changes his residence
ness advantage it is the duty of his wife to
from a consideration of convenience or busi-
accompany him, if he provides a home for
her; but where he merely lives part of the
time over week-ends at a hotel, and at most
offers to provide a home if she will come,
which she refuses to do, this does not con-
stitute desertion on her part.
A traveling salesman who leaves a former
residence and makes his "headquarters" at
another town, boarding there at certain ho-
tels which from time to time he visited over
week-ends, receiving mail there and keeping
some of his clothes there, should not be con-
sidered as having established a new resi-
dence there, for the purpose of divorce.
-ARCHIBALD V. ARCHIBALD, 91
1925 Constitutionality.
-EBERSOLE V. GOODMAN, 110
Guardian for service of subpoena in
divorce-Act of April 15, 1915, P. L.
124.
-IN RE GUARDIAN FOR ESTATE OF MARTHA
SNYDER, 193
Practice-Ejectment-Alias writ after
judgment of non pros. entered-Motion
to quash-Constitutionailty of Act of
May 16, 1919, P. L. 180.
-PATTERSON V. DUNKLE, ET AL., 49
Mandamus-County commissioners-
Primary election returns-Number of
districts-Allegations in petition-Inter-
pretation of act of assembly.
A demurrer to the return on an alternative
writ of mandamus directed to county com-
missioners to permit relator to inspect the
returns at a primary election, was overruled,
where defendants answered that full oppor-
tunity had been given to everybody to in-
spect the returns in their possession so far
as it would not interfere with the prepara-
tion of the books and papers for the compu-
tation by the returning board. This was suf-
ficient as, owing to the number of districts,
it would be physically impossible to allow a
general inspection without seriously inter-
fering with the duties imposed on the de-
fendants.
Allegations in a petition for a writ of al-
ternative mandamus directed to county com-
missioners to compel inspection of the re-
turns at a primary election, were too general
where relator did not show that he asked to
see any particular returns, when his request
was made, or that the returns he asked for
had been returned to the commissioners' of-
fice. The act of assembly requiring certain
returns from each district to be open to pub-
lic inspection must be interrupted reasonably
in relation both to the number of districts
and the duties of the commissioners.
-COMMONWEALTH EX REL. McCLURE V. ARM-
STRONG, ET AL., 47
A taxpayer not the owner of land affected
in condemnation proceedings by a school dis-
trict, has no right of appeal, or to file ex-
ceptions to the report of viewers in such pro-
ceedings.
appeared that the location of the dividing
line between the lots was the question in
issue, the case was held to be one of eject-
ment and certified to the law side of the
court.
An injunction by the chancellor cannot de-
cide the location of a dividing line between
two lots unless it is a mandatory injunction
directing defendants to deliver up possession
of the land in dispute, and that is not the
province of a court of equity, but a court of
Case certi-
law in an action of ejectment.
fied to the law side of the court as equity
had no jurisdiction
-MARTIN V. NEWINGHAM, ET UX., 31
Equity-Bill for re-conveyance of real
estate-Loan-Written defeasance.
Mortgage-Jurisdiction-Act of April
23, 1909, P. L. 137.
Where defendant took title to real estate
as security for a loan and executed a paper
acknowledging that on the repayment of the
loan on a date certain, he would reconvey,
this was a defeasance within the Act of Ap-
ril 23, 1909, P. L. 137, and equity had juris-
Defendant directed to answer a bill
diction.
ac-
re-conveyance and an
praying for a
counting.
Preliminary objections to a bill that the
orphans' court and not the common pleas had
But he is not without remedy in appropri-jurisdiction to determine the rights of the
ate proceedings to restrain irregular or ille-parties under a defeasance under the Act of
gal acts of the school district.
-IN RE APPOINTMENT OF VIEWERS, 43
April 23, 1909, P. L. 137, were overruled,
where defendant, who held title to property
The pro-
as security for a loan, had died.
ceeding was not an attempt to settle the af-
respective rights of the plaintiff and the de-
Roads Supervisors Eminent Do-fairs of the deceased, but to determine the
main-Authority to alter or widen-
Opening or widening within legal limits
-Not a taking of private property.
-METCALF V. WYNKOOP, ET AL., 72
fendant arising out of their transaction.
-FASSBERG,
ET UX., V.
TRUST CO., ETC., 112
INDEX OF CASES REPORTED
Equity Highways -Elevated porch
over sidewalk.
No one has a right to appropriate the use
of any part of the public streets except by
permission of the municipal authorities in
accordance with general regulations.
An unauthorized encroachment upon
public highway may be enjoined at the suit
of the municipal authorities.
The erection, over the sidewalk of a public
highway of a borough, without permission of
the borough authorities, of an elevated porch
extending over the sidewalk, with a clear-
ance of less than seven feet at one end and
eight feet at the other, was enjoined.
-LEWISBERRY BORO V. POTTS, 145
Criminal law-Evidence of-Previous
conviction of crime-Act of March 15,
-COMMONWEALTH V. SHORTENO, ET AL., 200
Fees-Service of writs issued by mag-
istrate by deputy sheriff and by private
persons.
The Act of 1921, P. L. 1006, fixing the sal-
ary of the sheriff and other officers in
counties of the fifth class and providing that
fees for their service shall belong to the
county, is limited in its application to county
Mint vending officers and their deputies and clerks whose
Equity - Injunction
machines-Gambling devices.
-NORTHAMPTON MINT CO. V. FREDERICK, ET
AL., 147
Practice, equity-Mortgages-Prayer
salaries are fixed by that act, and does not
affect the right of a deputy sheriff who does
not receive a salary under the act to receive
fees for the service of writs issued by an
alderman.
An alderman may lawfully address war-
for decree of sale-Jurisdiction-Bill rants to the sheriff, or to any constable or
taken pro confesso.
-CALM V. LINK, ET AL., 159
police officer or to one or more individuals,
and service by any of those would be valid;
and, if the service be performed by any of
the persons designated, other than the con-
constable could have legally obtained.
Equity-Nuisance-Garage in residen- stable, he is entitled to the same fees as the
-FLEAGLE, ET AL., V. STOKES, 193
While it may be better for the magistrate
to direct his processes to the proper con-
stable, this, however, is a consideration
which must be left to the discretion of the
Decedents' estates-Orphans' court-magistrate; and in the absence of evidence
Adjudication of accounts-Estoppel.
of abuse of discretion, it must be presumed
that the authorization of some person other
-ESTATE OF JAMES M. SCHWOYER, DECEASED, than the constable was for adequate reasons.
68
Judgments Striking off and opening-AUDITOR'S REPORT OF ACCOUNTS OF
-Forgery-Evidence sufficient to meet
-RUPP, FOR THE USE OF WINEKUR, V. Mc- FIDUCIARIES ACT.
Criminal law-Adultery-Evidence--Section 48, of Fiduciaries Act of 1917,
Relations of parties after arrest.
-COMMONWEALTH V. MOHR, 183
Orphans' Court-Petition for review
Judgments-Striking off and opening
-Forgery-Evidence sufficient to meet
responsive answer.
A vending machine is a gambling device
where its operation is such that, although
the player in any event will receive some-
thing for his money deposited, he stands a
chance to win something in addition.
A mint vending machine which was
-RUPP, FOR THE USE OF WINEKUR, V. Mc- constructed and operated that when a play-
LAUGHLIN, 125
er deposited a nickel he received a package
of mints and at a small window in the ma-
chine there appeared the word "No," or a
numeral from 1 to 20, and, if a numeral ap-
peared and if the player then deposited an-
other nickel, he would receive a number of
machine, each of which was worth five cents
checks equal to the numeral shown in the
in trade, was held to be a gambling device.
-NORTHAMPTON MINT CO. V. FREDERICK, ET
AL., 147
Affidavit of defense raising questions
of law-Action against surety company
on bond of bank officer-Proper party to
action-Character of indemnity bonds by
corporations-Extension by payment of
premiums Statute of frauds Pre-GARAGE.
sumption of payment-Want of particu-
lars in statement.
Equity-Nuisance-Garage in residen-
-COMTH. FOR USE OF SECRETARY OF BANK- tial section.
ING, V. HARRISBURG TRUST CO., 73
Holder in due course-Not payable at
-FLEAGLE, ET AL., V. STOKES, 193
fixed or determinable time-Non-nego- Trusts and trustees-Termination of
tiable--Subject to original defenses--trust-Consent of all parties in interest
Filling in blanks Negotiable Instru--Wills - Legacy Children — Grand-
ments Act 16 May, 1901, Sec. 14, P. L. children.
Guardian for service of subpoena in
divorce-Act of April 15, 1915, P. L. 124.
Service of a subpoena in divorce upon a
guardian appointed under the Act of 1915, P.
L. 124, relating to feeble-minded persons, is
improper.
The court will not appoint a guardian of a
person under the Act of 1915, P. L. 124, re-
lating to feeble-minded persons, where the
intended ward has no estate, and it appears
riers-Perishable freight-Claim-Lapse that the appointment is desired for the pur-
of time-Pleading.
-NOTARIANNI & CO. V. D. L. & W. R. R. CO.,
156
FUNERAL EXPENSES.
Guardian and Ward--Allowance of
funeral expenses of minor's indigent
father from minor's estate.
-HUNTER'S ESTATE, 175
Equity-Injunction-Mint vending lowed.
machines-Gambling devices.
An injunction will not be granted to re-
strain police officers from seizing ostensible
vending machines, which are in fact gamb-
ling devices.
Semble. Where the claim for an indigent
father's funeral expenses is reasonable and
not disproportionate to the minor's estate, it
may be allowed as a necessity.
-HUNTER'S ESTATE, 175
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