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PAGE Gerrish v. New Market, M. F. G. Co.,
Lancaster Co. v. Slocum, 4 Leg. Op. 473, 208 1o Fost, (N. H.) 478,
2 Gilbert's Appeal, 4 N. 347,
17 Giles v. Stevens, 13 Gray 146,
73 Girard Ins Co. v. Mutual Co., I Out. 15,
Leidy's Appeal, 39 Leg. Int. 479,
82 Given v. Bethlehem Church, 11 W.N.C. 371, 178 Leiter's Appeal, 10 W. N. C. 225,
98 Glass v. Warwick, 4 Wr. 140,
116 Gochenauer et al., Cooper, 8 S. & R. 203, 66 Lindsay v. Sweeny, 6 Phila. 309,
7 Graham v. Donaldson, 7 W. 453,
68 Livingston v. Cox, 7 Barr 360, Greenfield's Estate, 2 H. 496,
Lovell v. Accident Insurance Co., 2 Ins.
Law. Jour. 877,
150 Grennell v. Sharp, 4 Wh. 344,
117 Groff v. Ressler, 3 Casey 71,
Majoffin v. Patton, 4 R. 113, 8
Mann v. Dugan, u S. & R. 75, Gross v. Painter, 1 W. N. C. 154,
Martin v. Mechanics Bank, 6 H. & JohnHalfpenny v. Bell, 1 N. 128,
125 Hall v. Railroad, 13 Wallace, 367,
129 Hamilton's Estate, 24 P. F. S. 69,
Martin v. Fry, S. & R. 426,
16 19 Hanna's Appeal, 7 C. 53,
McCahan v. Hirst, 7 W. 178, Hart v. Western Railroad Corp., 13 Met. 108, 61
McCarthy v. City of Syracuse, 46 N. Y. 194, 204 Hassanclever v. Tucker, 2 Binn. 525, 16 McClellan's Appeal, 3 Harris 116,
191 Heist v. Baker, 40 Pa. St. 9,
16 Heister v. Green, 48 Pa. St. 390,
McCullough v. Fenton, 15 P. F. S. 418, Helfrich v. Weaver, 61 Pa. St. 390,
McDowell v. Tyson, 14 S. & R. 300,
142 Hemphill v. Flinn, 2 Barr 144,
McDowell v. The Bank of Wilmington, Henry v. Commonwealth, 3 Watts 384,
i Harrington 369, Henderson's Administrator's v. Ardery's
McKibben v. Martin, 13 P. F. S. 352,
131 Hershey v. Metzgar, 9 Nor. 217,
McLaughlin v. City of Corry, 27 Smith 109, Hess Mill road, 9 H. 217,
McMarlan v. English, 24 P. F. S. 300, 76 Hodge's Appeal, 8 W. N. C. 209,
McMurray's Appeal, 13 W. N. C. 136, 67 Hoffman's Appeal, 44 Pa. St. 95,
116 Hoffman v. Locke, 7 H. 58,
Melezet's Appeal, 5 H. 449,
161 4 Huffman's Appeal, 31 P.F.S.329; 2 W.N.C.635, 3
Mifflin County Nat. Bank's Appeal, 1 O. 150, 67 Humphrey v. Armstrong Co., 6 P.F.S.204,
Miller v. Savage, 2 Luz. Leg. Reg. 191,
28 291 Hunter v. Pielly, 12 C. 509,
Miller v. Ege, 8 Barr 352, 190
70 Hunt v. Wynn, 6 W'. 47,
Miller v. Garman, 19 P. F. S. 134, 95
77 Hutchins v. Scott, 2 M. & W. 809, So Miller's Appeal, 39 Leg. Int. 479,
82 Miller v. Stemm, 2 Barr 386,
124 Ingersoll v. Campbell, 1o W. N. C. 553, 106 Monmouth Co. Fire Ins. Co, v. Hutchinson, Innes' Estate, 4 Wh. 184,
2I N. J. Eq. II7, Insurance Co. v. Kobert Slean, 2 Cascy 189, 144 Montgomery's Estate, 7 Phila. 504, Insurance Co. v. Slaughter, 12 Wal. 404, 148 Morce v. Miss. Valley Ins. Co., 4 Bush 535,
150 Irwin v. Commissioners, i S. & R. 508, 91
Morris' Appeal, 2 N. 269,
131 Jacob's Appeal, 67 Pa. St. 434,
167 National Bank of Newburg v. Smith, 66 Jacob Frantz for use v.Phil. Brown, i P. & W. 257
N. Y. 271,
126 Jackson v. Cramer, 7 Wr. 79,
178 N. A. Life and Accident Insurance Co. v. Jane Gallagher's Appeal, 12 Wr. 125, 16 Burroughs, 19 P. F. S. 43,
148 Jarmin on Wills, vol. 2, 550, 16 Neff's Appeal, 12 Wr. 501,
19, 193 Jellyman v. Fitzpatrick, 2 W. N. C. 186, .
106 Nelson's Mill-road, 2 Legal Opinion 54, Joker v. Commonwealth, 8 Harris, 484, 31 New Hanover Road, 6 H. 224,
128 Jones v. Thomas, i A. & E. 158,
3 Jones' Estate, 3 C. 336,
North Pa. R.R. Co. v. Hileman, 13 Wr. 64, 130
Norristown v. Moyer, 17 P. F. S. 356,
203 Kelley v. Green, 13 P. F. S. 299,
182 Kensington v. Wood, to Barr 93,
201 Olewine's Appeal, 4 W. & S. 492, Kensington v. Glenat, i Phila. R. 251, 165 Overscers of Sugarloaf Twp. v. Directors Kerr v. Trego, 11 Wr. 296, 31 of Poor of Schuylkill Co., 8 Wr. 481,
196 Kille v. Ege, i N. 102,
Overseers of Williamsport v. Guardians of King v. King & Miller, 2 Chester County
Poor of Philadelphia, 7 W. N. C. 232, 107 Reports, 45,
114, 156 Overton v. Williston, 7 C.,155, Kintz v. Long, 30 Pa. St. 501,
150 Kirby v. Case, 12 N. 505,
Page's Appeal, 21 Smith 402,
188 Klapp v. Kleckner, 3 W. & S. 519, 170 Patterson's Appeal, 11 P. F. S. 294,
25 Kleckner v. Klapp, 2 W. & S. 44,
170 Kocher v. Rice, 2 Luz. Leg. Reg. 24,
Patterson v. Robinson, i C. 181,
Patterson v. Delaware Co., 20 P. F. S. 381, 188 Knabb's Appeal, 1o Barr 186, 157
114 Krause v. Commonwealth, 9 W.N.C.61,
Peck's Appeal, 11 W, N. C. 31,
184 Kyle's Road, 4 Y. 514,
Penusylvania R. R. Co. v. Shay, i Nor. 198, 106
129 Laing v. Colder, 8 Barr, 479, 202 Penna. R. R. Co. v. Ogier, 11 C. 60,
130 Lane v. Nelson, 2 W. N. C. 216,
79 Penna. R. R. Co. v. Allen, 3 P. F. S. 276,
202 I I2
PAGE Penna. Canal Co. v. Graham, 13 P.F.S. 290, 202 Spangler's Estate, 9 W. & S. 135,
16 Penna. v. Croff's et al., Addison's Rep. 277, 169 Spangler v. Penn. Aid Society, 4 York Pequaa Bridge case, 18 Smith 427,
Legal Record 33,
74 Perry Township v. John, 29 P. F. S. 412, 24 | Spangler v.Penn. Aid Society, 12W.N.C.311, 74 Perkins & Miller v. Nichols, 2 Ches. Co. Spring Garden Road Case, 7 Wr. 144, 65 Reports 88, 156 Stayer's Appeal, 6 H. 86,
116 Petersons v. Lathrop, 10 C. 223,
118 Stadtfeld v. Huntsman & Co., 10 W.N.C.219, 183 Phillips v. Monges, 4 Wh. 226,
St. Bartholomew's Church v. Wood, 61 Phillips v. Ives, i R. 458, 144 Pa. St. 96,
168 Philbins v. Davenger, i Luz. Leg. Reg. 507, 104 Stewart v. Swain, 7 W. N. C. 407,
131 Phoenix Mutual v. Doster, 3 YORK LEGAL Stock v. Stock, 11 Phila. 324, RECORD, 57,
6 Stoever v. Ludwig, 4 S. & R. 201, Pierce v. Scott, 40 Leg. Int. 320,
Strine v. Ziegler, i W. & S. 260,
91 Pierce v. Livinston, 30 Smith 99,
22 Pittsburg v. Owners of Steamer, Mary
Strohecker v. Farmers' Bank, 6 W. 96,
Swan v. Falmouth, 8 B. & C. 456,
Taggart v. Fox, Pricket v. The Insurance Co., 3 Y. 458,
Taylor's Land. and Tenant, S. 57,
143 Prowattain v. Tidall, 30 Smith, 295,
Thompson v. Insurance Co., 104 U. S. 252, 5 105
Thoroughgood's Case, 17 P. & S. 389, 154 Quinn v. Fidelity Beneficial Society, 4 Tilloston v. Smith, 32 N. H. 90,
177 YORK LEGAL RECORD 34, 33 Tinnard's Appeal, 12 N. 313,
19 Quinn v. Fidelity Beneficial Society, 4 Tochterman v. Adams Express Company, YORK LEGAL RECORD 34,
74 1 York Legal Record 165, Railroad & Canal Co.v.Bunnel, 31 P.F.S.414, 150
Todd v. Figley, 7 W. 542, Ramsey's Appeal, 7 W. 71,
Townsend v. The Susquehanna R. R. Co.,
9 Reed v. Reed, 9 Watts 263,
6 Johnson 90, Reed's Appeal, i H. 476,
Trenton Mutual Life & Fire Insurance Co.,
145 Renovo Overseers v. Halfmoon Overseers,
Tricket on Liens, vol. 1, 8231,
114 28 P. F. S. 301,
129 Richter v. Cummings, 10 Smith,
Trunick v. Smith, 13 P. F. S. 18,
117 Ridgway, Budd & Co.'s Appeal, 3 H. 177,
Twines Case, I Smith's Leading Cases,
114 Road from Aps Tavern to Susquehanna
part 1, pg. 34-77,
77 through Charlestown, 17 S. & R. 388, 4 Vacation of Osage Street, 9 N. 117,
203 Road in O'Hara Township, 6 N. 336,
Vanderslice v.City of Phila., 10 W.N.C.373, 204 Road in Jefferson and Rush Townships, Vinton's Appeal, 11 W. N. C. 244,
131 2 W'. N. C. 137,
65 Voss v. The German Amer. Bank, 83 Ill. 599. Road in Ross Township, 36 Pa. St. 87, 128 Vought v. Sober, 23 P. F. S. 49,
7 Roberts v. Dauphin Bank,
86 Rundle et al. v. Ettwein, 2 Yeates 23, 66 Walker v. Pennel, 15 S. & R. 68,
117 Ruse v. The Life Insurance Co., 23 N. Y.516, 145 Wallace & Krebs v. Wainwright & Co.,
6 N. 263,
158 Sanderson v. Pa. Coal Co., 86 Pa. St. 401, 175 Warnock v. Davis, 14 Ot. 775,
145 Sawtelle v. Railway Passenger Ass. Co., Webster v. Peck, 31 Conn. 495,
77 15 Blatchford, 216, 150 Wertz's Appeal, 19 Smith 173,
150 School Directors v. James, 2 W. & S. 558, 183 Western Ins. Co. v. Cropper, 8 C. 351,
148 Schuylkill County v. Reifsnyder, 10 Wr. 450, 93 West Chester road, 2 Rawle 421, Seitzinger v. Stunberger, 2 J. 380,
96 2 Wheaton's Selwyn Nisi Prius 1362 n. 1, 17 Seibert's Appeal, 7 H. 49, 150 White v. Smith et al., 9 C. 186,
148 Shaffer v. Sutton, 5 Binn. 228,
Wilhelm v. Falmer, 9 Barr 300,
70 Shaffer v. Clark, 9 No. 94,
105 Willard v. Norris, 2 R. 62, Sheredine v. Gaul, 3 Barr 383,
190 Shnyder v. Noble, 9 W. N. C. 183,
Wilson v. Insurance Co., 4 R. I. 156, 148 Shomo's Appeal, 8 P. F. S. 356,
191 Wood v. Reynolds, 7 W. & S. 406, 55, 117 Singerly v. Swain's Administrators, 9 C. 102, 178 Wood v. Nutt, 5 Bingham 10,
85 Stigraves v. The Bank, 12 Wr. 362,
127 Worman v. Kramer, 23 Smith 385, Sleeper v. Dougherty, 2 Wh. 177,
190 | Wright v. Grover & Baker S. M. Co., IN. So, Slyhoof v. Fitcraft, i A. S. L. 171,
73 Snyder v. Christ, 39 Pa. St. 499, Somer's Estate, 38 Leg. Int. 95,
0. C. of
YORK LEGAL RECORD. ministration de bonis non cum testamento
annexo should be issued. THURSDAY, MAR. 8, 1883.
Such a representative has the entire es
tate under his authority and is ready to ORPHANS' COURT.
dispose of it according to the provisions
of the will and as occasion requires, and Sander's Estate.
who will care for the interests of the resiWill—Trust under-Executor.
duary legatees, as well as of the widow.
In my judgment the testator did not When by will, a trust for a widow is annexed to the office of the executor, on his death it can only be exercised
intend an imperium in imperio, but on by an administrator d. b. 11. c. t. a.
the contrary, oneness of power and auFebruary 16, 1883. MCCLEAN, P.J.- thority in the care and administration of It can hardly be said that there is under his entire estate for all the purposes named this will a distinct and collateral trust and in his will. As has been intimated any one which can be exercised independently and all trusts were vested by him in the of the executorship. There can be no Executor as such, and the trust cannot be separation allowed by the Will of the pro- severed from that office, vide opinion of visions for the widow. The whole exist- Sup. Court in Innes' Estate, 4 Wharton ting estate is for her benefit. If she de
If she de- p. 184. The testator appoints Henry A. sires to have the real estate sold, the exe- Picking the sole Executor of the Will, and cutor is ordered and directed to sell and we have no testamentary trustee nominaconvey the same. The conversion of it tum for the widow's benefit alone, no such only awaits her desire. Then again not testamentary trustee as is contemplated only the interest arising from the invest- and intended by section i of Act 22 April, ments of personal estate and from the 1846, 1 Purd. 455 pl. 244 ; which is claimproceeds of "real estate if sold, is to be ed to be the authority for the appointment paid to the widow during her life, but if now asked. the interest is insufficient for her comfort
Section 3 of Act of 12 March, 1800, able support, then so much of the princi: provides that when the Executor shall die, pal to be applied to her support as shall
and letters of administration with the be requisite for said purpose.” The exe
will annexed shall be granted, it shall and cutor is not made a trustee nominatum but may be lawful for such administrators with ratione officii. How can the office of a
the will annexed, to sell and convey the real trustee in this case be distinguished or
estate and otherwise act, respecting the separated from that of Executor?
same, as fully and completely, as such deWould there be propriety in appointing ceased executor might or could have done, a trustee of the personal estate, when it were he still living, and by the 67 section may be, part of the principal would be of the Act of 24 February, 1834, all and required for the support of the widow or singular the provisions of that Act relawhen she can at anytime require the sale | tive to the powers, duties and liabilities of of the real estate ?
executors are thereby extended to adThen if there could be an appointment ministrators with a will annexed; 1 Purof a trustee of part of the estate, exclud don's Dig: p. 417, pl. 66; p. 419, pl. 74.
. ing the real, the result would be that when The 31 section of the same Act, 1 Purd. the real estate is to be sold either during p. 425, pl. 99, gives the express power to the life of the widow or after her death, administrators de bonis non with a will by virtue of the authority given in the annexed to demand and recover from their will, an administration must be raised.- predecessors in the administration, or their It seems appropriate that letters of ad- | legal representatives, all moneys, goods and assets remaining in their hands, death of her husband, notified the admindue and belonging to the estate of the de- istrator that she claimed the benefit of the cedent. This right of the administrator Act of April 14, 1851, and elected to rede bonis non is exclusive ; Com’lth v. Stro- tain as part of her exemption, household hecker, 9 W. 479; Montgomery's Estate, goods, etc., and claimed the balance in 7 Phila. 504.
cash, “whenever the same comes into the The facts in the case of Lantz v. Boyer, hands of the said administrator.” An apAdmin. d.b.n.c.t.a. 31 P.F. Smith 325, are praisement of the household goods was very much like those that exist or that are accordingly made by the appraisers, certi
fied under the Act of Assembly, and with suggested in the case at bar. There as here, the testator made a common fund of the petition of the widow filed in accor
dance with the rule of Court.
The goods his estate, real and personal, a life estate given to the widow and absolute direction included in the inventory and appraiseto the executors to sell if she should desire
ment comprised the entire personal estate it and the proceeds of the sale to be in- of decedent, but it appears he was the vested, the interest to be paid to the widow
owner of a single piece of real estate, a for her life, &c.
small dwelling house. This, however,
was not appraised, nor was any request When the wife's life estate should ex
therefore made by the widow. She died pire, the distribution is to be made by the three days after the filing of her petition, executors certainly, and that virtute officii. and prior to the approval by the Court of This duty of distribution then devolved of the appraisement af the personal property necessity upon the administrator de bonis retained by her as before stated. It is non cum testamento annexo. If so he must
now objected by the administrator of the be entitled to receive and invest the fund deceased husband that as the widow died and hold it so invested until the period of before the approval of the appraisement, final distribution shall arrive. This case
it is too late for confirmation, and the must be considered as decisive of the very household furniture remains the property question now before us and which was
of her husband's estate. And, further, as raised and discussed by the counsel in that to the real estate, this never having been case. See also Olwine's Appeal, 4 W. & appraised, no allowance can be made out S. 492, although determined before 1846. of its proceeds when sold. It is to be obWhere by the will the trust for the widow served, no objection is made by any creditis annexed to the office of the executor, or of the deceased husband. In view of on his death it can only be exercised by the facts stated we are of opinion that so an administrator de bonis non ;” also far as respects the claim of the widow to Com’lth v. Barnitz,9 Watts 252. For above retain the personal property duly invenreasons the prayer of petition refused.
toried and appraised, in the absence of
any valid objection by creditors of the Philadelphia
deceased husband, the occurrence of her Lafferty's Estate.
death before the approval of the appraiseDeath of a widow three days after filing petition for ex
ment, is of no consequence. There was emption, and before ihe approval of the appraisement by nothing to prevent the approval of the the Court, does not invalidate the claim. Sur exceptions to widow's exemption.
appraisement, the day of its filing, except
by rule of Court, notice must be given by February, 3, 1883. HANNA, P. J.
advertisement, to creditors and others inA novel question is raised by the exceptions, and as far as we can ascertain, terested, to object thereto, if they so dewithout precedent. The widow of de- sire. No objection was made, except by cedent within a reasonable time after the the administrator, and he is not affected
0. C. of
by the claim to the exemption. If the The ad is that: “The public road as laid claim had never been made by the widow, out does not show that it begins in a pubby was presented by her executor, the lic road." case would be far different, and clearly could not be allowed.
In this proceeding it appears the clerk It is a personal
of this Court did not insert in the order, privilege, and if not claimed, is presumed
the exact words, as used in the petition to to be waived. In this case, the widow
describe the road. That was a censurpromptly availed hereslf of the provision for her benefit, complied with the require the order, however, in this proceeding for her benefit, complied with the require able omission and should not again occur. ments of the statute, and we fail to dis. The order, however, in this proceeding
on its face sets forth that the petitioners cover any sufficient reason why the ap- and divers inhabitants labor under inconpraisement should not now be approved. The appraisement comprising only the
venience, for want of a public road, and household goods, etc., claimed, there being The law requires that the definite points
then states its beginning and ending.no money or other personal assets out of The law requires that the definite points which to pay the balance to which the where a road, public or private, shall bewidow was entitled, and the real estate gin or end, should be set out with a reason
able certainty : (9 Smith 358). Unless it not having been appraised : (Hufman's Appeal, 31 P. F. S. 329; 2 W. C. 635; the order for opening the road cannot be
so appears on the face of the proceeding, Nixon's Appeal, 6 id. 496; Somers' Estate, 38 Legal Intell.95 : Andress' Estate, sustained. That requisite has been com38 Legal Intell. 5,) it will therefore be ap- The termini of the road proposed appear
plied with in the proceedings before us.5 proved as to the goods and chattels there
ing in the order and in the report, are in mentioned.
manifestly reasonably certain. Exceptions dismissed and appraisement approved nunc pro tunc.
Had the road petitioned for been asked as for a private road, the two exceptions
above recited would have been fatal to QUARTER SESSIONS.
| the report in question and to these whole
the road law of 1836, a petitioner for a Q. S. of
private road must ask for a road from the Road in West Cocalico Township. respective dwellings or plantations of the Roads-Public-When termini suffici- petitioner or petitioners, "to a highway or cently certain.
place of necessary public resort, or to any
But It is not requisite in an order to viewers, that it shows private way leading to a highway." that the public road to be laid out is to begin in a public
the provision made for public roads by the road, and to end in a public road, but is sufficent when the points of termini are set forth with reasonable certainty.
said Act, does not prescribe any specific
| termini in terms. Section ist says: “The Exceptions to report of viewers.
Court of Quarter Sessions of every counJanuary 13, 1883. PATTERSON, A.L.J.- ty of the Commonwealth, on being petiNotwithstanding the numerous excep- tioned to grant a view for a road, within tions filed to the report of viewers, there the respective county, shall have power are but two, the ist and 2d, which were and are hereby required, in open Court to argued before the Court by counsel, and appoint, as often as may be needful, six
, which require our attention.
persons, &c.” The Act, it will be seen, The ist is that: “The order to the does not require the petition to state that viewers does not show that the public it is for a public road even.
The 3d secroad to be laid out is to begin in a public tion of the Act, however, directs that the road and to end in a public road." viewers shall make report, and specifies