SUPREME COURT. Buehler's Appeal. No. 8. under his construction of the will and codicil thereto he refused to distribute anything to Robert's wife, holding that she was substituted as legatee in place of her husband, and thus occupied the same position he would have done if the codicil had not been executed. The learned In a proviso to his will a testator directs the manner in judge of the Orphans' Court adopted the which the net share of each child shall be ascertained.-Afterwards he revokes the bequest to R., as contained in two sentences of his will quoted by him 10 his codicil, but carefully avoids changing or annulling the mode in which the share of each child is to be ascertained. He then gives the share of his son R. to his son's wife. HELD, (reversing the court below), that the share to which R.'s wife was entitled to use the share which R. would have taken if his wife had not been substituted as a legatee in his stead. Appeal from the Orphans' Court of Montgomery county. October 2, 1882. STERRETT, J. After providing for the payments of his debts and bequeathing a portion of his estate to his widow, the testator, Martin Buehler, directed the residue of his estate to be equally divided among his children, of whom Robert M. Buehler was one, with this proviso, "that there shall be deducted from the share of each of my children, to whom I have made any advances, the amount of such advances." He afterwards revoked the devise to his son Robert by the following clause in the codicil, viz: "I do hereby revoke the devise to my son, Robert M. Buehler, in my said will contained and set forth in the following words, so far as they affect my said son, to wit: "And the rest, residue and remainder of my whole estate, real and personal, I give, devise and bequeath to such of my children as may be living at the time of my decease. I do hereby give, devise and bequeath the shares of my sons in my estates to them respectively, their heirs, executors, administrators and assigns forever." In the same connection he disposed of the share which Robert would otherwise have taken under the will as follows, viz: "And I do hereby give, devise and bequeath the share of my said son unto my daughter-in-law Mary, the wife of my said son, Robert M. Buehler, to her and hers," etc. The question is whether, under this devise of Robert's share to his wife, she is entitled to a full share of the estate, unaffected by advancements made to him by the testator in his | lifetime, or whether in ascertaining her distributive share the advancements so made are to be deducted as directed in the proviso above quoted. The learned auditor found that the advancements to Robert was in excess of a full share in the fund for distribution, and opposite view of the question, and held that her interest as legatee was unaffected by the proviso in relation to advance ments. The question thus presented is a very narrow one, and must be determined by the expressed intention of the testator as disclosed by his will. In the proviso above quoted he directs the manner in which the net share of each child shall be ascertained. He afterwards revokes the bequest to Robert as contained in the two sentences of his will quoted by him in the codicil; but he carefully avoids changing or annulling the mode in which the share of each child is to be ascertained. He then gives the share of his son Robert to his daughter-in-law. What then is the share of Robert that is thus taken from him and given to his wife? It is the share that he would be entitled to if his wife had not been substituted as a legatee in his stead, and that is to be ascertained in the mode pointed out by the will. It follows that the first report of the learned auditor was correct, and should have been confirmed. Decree reversed at the cost of the appellees, and it is ordered that the record be remitted with instructions to distribute the fund according to the original report of the auditor. The Seventh-Day Baptists, of Ephrata, Where the charter of incorporation of a religious society contains nothing as to the mode of conducting election of trustees, and there are no by-laws of the society regulating the same former usage and practice becomes the law in such cases. The following is a short history of a legal contest, of which the following opinion forms a part. The Society of Seventh-day Baptists of Ephrata, in Lancaster county, was incorporated by Act of Assembly approved the 21st day of February, 1814. This act proivded, inter alia, for the election of seven and restrained from taking part in any way in the management of the property, &c., of the society. A master was appointed to take testimony and report, whereupon he dismissed the bill of complaint. The Court, upon exceptions to the master's report, sustained the exceptions and made the injunction perpetual. Judge PATTERSON delivered the opinion, Judge LIVINGSTON dissenting. This decree was made May 6th, 1882. January 2, 1883, being the day for the regular-election of trustees, as provided by the charter, two sets, one being Lorenz Nolde, William Madlem and Henry Sheaffer, and the other A. F. Madlem, J. J. Zerfass and T. Konigmacher, were returned, who at the same time filed their bonds, asking the Court to approve the same, whereupon the following opinion is: trustees, who were "to be elected on the first Monday of January in every fourth year after the passage of this Act, at the town of Ephrata, in the county of Lancaster." An Act of Assembly was passed on the 10th day of February, 1865, reducing the number of trustees from seven to three. The society, being possessed of considerable real estate in and around the town of Ephrata, it has become quite wealthy by reason of an increased revenue in the way of rents, the value of the real estate being greatly enhanced by the construction of the Reading and Columbia Railroad and the improvements in the town of Ephrata resulting therefrom. The government of the society was peaceable and harmonious until the year 1879, when an election was held which has caused a division in the society ever since. The 6th day of January, 1879, being the regular and appointed time for holding the quadrennial election, notice was posted on the "Saal" or meeting-house, that on that day between the hours of 12 m. and 4 p. m. an election would be held for trustees, of The Court, on inspection of the said the Seventh day Baptists. Some of the bonds and the return of the minutes of members, dissatisfied with the manage- election of trustees by the said religious ment of the society, resolved on the elec- | society of "The Seventh-day Baptists, tion of a new board of trustees, and, as a discovered that the members of the said result, two sets of trustees, of three each, religious society met in the "Saal." the were returned as elected. house of worship of said society, on the Ist day of January, 1883, and held elections for trustees. By the 2d section of the Act of Assembly incorporating said society, it is provided "that the trustees shall be elected on the first Monday of January in every fourth year after the passing of said Act. That January last of 1883 was the first Monday of said month, was the end of the term of office of the former trustees, and the time at which, under the charter, a new board of trustees had to be elected. On the 18th of January, 1879, both sets claiming to have been legally elected presented to the Orphans Court, as required by the charter, the election returns with certificates attached, together with their bonds prepared, asking for the approval of the same. The Court, after testimony taken and read, declined to approve either of the bonds, Judge Patterson delivered the opinion, but suggested that an election be held to elect trustees to fill the vacancy occasioned by any incompetency of any of the trustees to act. Whereupon notice was posted for the election to be held on the 7th day of July, 1879, where William Madlem, Lorenz Nolde and Jacob S. Spangler, were returned as elected. The newly elected trustees filed their bond with sureties and asked the Court to approve the same. Testimony was taken and read on the argument after which Judge Patterson delivered an opinion approving the bond. Judge Livingston dissented and objected to the approval of the bond. The new board of trustees not getting control of the property, filed a bill in equity praying that the defendants be enjoined May 2, 1882. PATTERSON, A. L. J.In the matter of the bonds filed in said Court and asking said Court to approve the same. One filed January 2, 1883.One filed January 3, 1883. This religious society has not been united or harmonious among its members for some years past but it is distracted by unhappy fueds. Hence there were two distinct elections held by the members of said society, on the said 1st Monday of January last, at the same place. An Act of Assembly passed subsequently to the original Act of incorporation, reduced the number of trustees from seven (the number in the original Act) to three and therefore but three such officers can be elected to manage the business of the society. But instead of three persons having been returned as trustees duly elected there are six persons so returned-each of the two divisions of the members of said society having met and elected three trustees, and each set have filed their bond in this Court and ask that they be approved. The aforesaid subsequent Act amending the act of incorporation, and passed and approved the 10th day of February, A. D. 1865, provides that the three trustees elected, "before entering upon the duties of their office shall respectively give bond with sureties to be approved by the Orphans' Court of Lancaster county, for the faithful performance of the trust, &c. In order to conserve the welfare and best interests of the said religious society, it manifestly becomes the duty of the Court to take action in the premises-to approve the bond of one set of trustees. Without such approval neither sect, according to the provisions of the Act just quoted, can enter upon the duties of their office. Necessity dictates that there should be a board of trustees to manage the business of the society. The property of the society consists of real and personal estate the real estate of several tracts of land and tenements; leases of the same to be made, rents collected, the "Saal," the houses occupied by the members of the society for worship, must be kept in order and opened and closed in order to accommodate the worshippers, and the funds and profits of the real estate of the society, when collected, to be appropriated, as the Act of incorporation directs, to "provide for the comfortable support and maintanance of the in-door members of the society and the aged. The duties of the trustees, if properly performed, are onerous and impose great responsibility, and cannot safely be postponed. The question then arises which set of trustees, returned to this Court, should have their bond approved. It is not disputed that the bonds filed by each set of trustees are both ample and the sureties on both are abundantly responsible. Which bond should the Court approve? The bond filed in this Court January 3d, 1883, by Lorenz Nolde, Wm. Madlam and Henry Sheaffer as trustees is ample. We find, on inspection of the election returns filed in this Court, that the said three persons received the votes of twenty-four of the members of said society for the office of trustee, a majority of all the votes cast by the members of the society for candidates for that office; find that due notice of the time and place of holding the election, at which the above three persons were elected, was given, namely, a written notice of time and place, signed by the president of the board of trustees, posted on the door of the "Saal," and a copy thereof placed on a post inside of the "Saal." That was the mode of notice adopted by the long usage of the society. It being a religious society, and its Act of incorporation being silent as to the mode of conducting elections of trustees, and the corporation not having by by-laws directed the manner of elections, usage became the law: 8 Harris 484, Joker v. Commonwealth. The said notice was signed too, by the president of the board of trustees in office and in possession of the property of the society.— The meeting thus called organized at 111⁄2 o'clock, according to the notice given and according to the usage of the society, by electing a judge, inspector and clerk, as officers of the election, and thus organized, cast twenty-four votes for the said three persons, to wit: Lorenz Nolde, Wm. Madlam and Henry Sheaffer as trustees, and they are returned as trustees, duly elected, of the said society, and as it appears by a majority of all the votes cast by the members of said society for trustees Said three persons have, therefore, the prima facie written title to the office, and can be set aside only by a contest in the forms prescribed by law: 11 Wright 296, Kerr v. Trego. The Court, therefore will and does hereby decree an approval of the said bond filed January 3d, 1883 in the Orphans' Court. The bond filed January 2d, 1883, by A. F. Madlam, Jas. J. R. Zerfas and T. Koningmaher, as trustees, is not approved by this Court, for by an inspection of the election returns filed in this Court, January 15th, 1883, that the said three persons received but seventeen votes of the members of said society for the office of trustee, not being a majority of all the votes cast for candidates for that office. We find also that the members who cast the said seventeen votes met and organized after 12 o'clock, noon, in the "Saal" and then held their election as aforesaid; that when the said seventeen members met and organized and cast their votes, the meeting called according to the usage of the society as aforesaid, at 111⁄2 o'clock, had organized and were receiving votes, and its officers were qualified to hold the election, having maintained the forms of organization according to the laws and usage of the society. The meeting of the -seventeen members and second organization was entirely irregular and without authority of law or usage, and of course its return and certificate of election was absolutely null and without effect: 8 Harris 484, Joker v. Com. The said last three persons were not legally elected and their bond should not be approved. The conclusion of the Court, as hereinbefore expressed, does not affect the rights -the right of title to the office of trustee. In this proceeding, the title to that office cannot be determined. That right can only be determined by quo warranto, the mode prescribed by law, and if the three persons who are prevented, by the non-approval of their bond from entering upon the duties of the office of trustee, think they are injured, they can evoke the remedy suggested. [Judge LIVINGSTON dissents, and objects to the approval of Nolde et al. bond.] Supreme Court Proceedings. The seven Supreme Court Justices possess an austure and dignified mien, and many a neophyte trembles and stammers in his initial effort, but soon discovers that they are more benignant than they look. Until a year or two ago, it was the custom of the Judges to ply the attorneys with such a succession of enfilading interrogatories and hypothetical legal propositions, whereby the most learned and accomplished lawyers would sometimes be embarrassed and discomfited. One of the ablest of our bar (now deceased) when a clinching and unanswerable legal point was put to him, would elude it by stating that he would come to it presently, but he always took his seat without coming to it. Another when in this predicament usually got his thumb under his suspenders and jerked and pulled until relief was afforded by a cessation of the judicial bombardnient. Another however got his revenge by talking so long and tediously that every Judge left his seat except the Chief Justice, and he couldn't without adjourning the Court. It is needless to say the long-winded attorney lost his case. As soon as the argument of a case is concluded, the Chief Justice calls the next case on the printed list. The printed paper books of both sides are handed to the Judges who hastily persue them so as to get an inkling of the points in controversy, when the Chief Justice sings out, "who opens this case?" The counsel for plain tiff in error or appellant then rises before the seven august judicial dignitaries who all scrutinize him as if searching to discover from what species of the animal creation he descended. The counsel generally begins with an abbreviated history of the case, after which he dives into the whirlpool of law in which, when in an uphill contest, he flounders until his allotted time expires. If of a vain self-confident and inflated nature, he sits down wreathed in smiles at the recondite legal lore he has flung into the presumed vacant places in the judicial craniums. His imperturbable spirit is not shocked at the fact that after he has fanfaroneded but a few minutes, the Justices put their heads together nonchanantly, or seriously discuss the question at issue, and pay about as much attention to the remainder of his argument as if it was the product of an automatic fog horn. Since the Court has ceased asking questions of the attorneys, the self-sufficient lawyer is safe in his comtemplations of how much law he taught the Court and of his own legal profundity and perfection. If an attorney becomes offended when the justices hold their pow-wows, and stops to reclaim their attention, the Chief Justice orders him to proceed, saying that they are listening to his argument but immediately thereafter relapse into their wanton practice. In the Supreme Court there is no inspiration for the orator who is dependent for his flights upon the plaudit or melted attention of his hearers. Seven statues could not be colder or more earless. That they care little for oral argument is evidenced by these unmistakable manifestations. After the adjournment of the Court at 3 P. M., the justices repair to their respective homes in the city-where the printed arguments are pondered over; and when in subsequent consultation a decision is arrived at, the Chief Justice designates one of their number to write the opinion. The Supreme Court of late years sticks less to the bark than formerly. Very often an attorney is certain of winning an unjust cause on the ground that the previous rulings of the Court are in opposition to his side of the case. But every case has its distinguishing feature, and that feature may make his cause inequitable and unmeritorious. In such cases the Supreme Court rightly tramps down technicalities and overrides precedent in order that it may reach substantial justice.-York Daily. No. 9. YORK LEGAL RECORD. ficial and protective purposes, and according to terms of charter located at Harrisburg, in the county of Dauphin, Penna.; thet said defendant, as your petitioner is advised and claims, is not a Life Insurance VOL. IV. THURSDAY, MAY 3, 1883. SUPREME COURT. Spangler vs. The Pennsylvania Mutual Aid Company, within the meaning of the Society. Insurance-Construction of Act of April 8, 1868. Suit may be brought in the county where the subject of the risk insured against was domiciled or located, and the summons may be served on the company in any other county of the Commonwealth in the manner provided by the original Act of April 24th, 1857. statute regulating service of process upon such companies, but that said defendant can be served with process only under the statutes regulating service of process upon corporations, generally, that the summons in this case has not been served in accordance with said statutes. He therefore Error to the Court of Common Pleas asks that a rule be granted to show cause of York county. why the service of the said summons should not be set aside and vacated, and he will ever pray, &c. J. F. EATON. Sworn to and subscribed before me this The action is covenant, brought on the second day of August, 1881, to 41 October Term, 1881, on a certificate of membership issued by, and under the corporate 8th day of September, 1881. seal of defendant in error, returnable on the first Monday of September, 1881.The præcipe directed the summons to be directed to the Sheriff of Dauphin Co., Pa., where the defendant in error had its home office. The summons was sent to said Sheriff, who made the following return: "1881, August 8th, served personally on W. S. Rutherford, President, and J. F. Eaton, Secretary, of the Pennsylvania Mutual Aid Society, defendant, and gave to each of them a true and attested copy of this writ, and made known the contents. So answers A. Reel, Sheriff. Sworn and affirmed before me. E. B. Mitchell, Prothonotary Court of Common Pleas of Dauphin County." Immediately after said service, Messrs. Cochran and Hay appeared "de bene esse for the purpose of moving to set aside service of summons in this case." August 24, 1881, narr and copy of policy of insurance in suit, &c., filed. On the 9th of September, 1881, the following petition under the corporate seal of the defendant was filed To the Honorable the Judges of the said Court : The petition of J. F. Eaton respectfully represents that he is secretary of the above named defendant; that said defendant is a corporation created for bene S. W. FLEMING, Notary Public. On this the court granted a rule to show cause why service of summons should not be set aside, returnable the second Monday of October, 1881. At the December Argument Court said rule was argued, and on December 19th, 1881, the rule to show cause why service of summons should not be set aside was made absolute. By the Court. Thereupon an alias summons was issued to No. 70 January Term, 1882, and served upon the local and duly authorized agents of the defendant in error in York. A motion was entered to set sside this service, and upon the argument of the motion the rule was made absolute. October 4, 1882. STERRETT, J. The single question involved in this contention is the construction of the supplement of April 8th, 1868, declaring that all provisions of the Act of April 24, 1857, relating to insurance companies, shall apply to life and accident insurance companies. The same question was before us in Quinn v..The Fidelity Beneficial Society: 4 YORK LEGAL RECORD, p. 33. It is here held that suit may be brought in the county where the subject of the risk insured against was domiciled or located, in the |