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Kunkel et al. v Kunkel.

the result of a mistake on the part of some officer of the trust company in failing to note the identity of the trustee named in the first paragraph" of testator's will. This mistake was due to the similarity of the names oi two corporate trustees named in the will.

I would dismiss the appeal and affirm the judgment.

FRAZER, J., joins in dissenting opinion.

Note-For opinion in lower court in this case see 68 P. L. J. 251.

EDITOR.

Commonwealth v Sutton.

Motor Vehicles

P. L. 678.

Stopping-Highways

-Indictment Act June 30, 1919,

A proceeding by indictment for the offense of refusing to stop a motor car at the request of an officer of the State Department of Highways, is coram non judice, and void, there being no such offense at common law, and no statutory provision that would support an indictment.

By sections 26 and 33 of the Act of June 30, 1919, P. L. 678, such offense is defined and made punishable by fine to be collected by process of summary conviction, subject to the right of the accused, at his option, to be tried by a judge of the court of quarter sessions, rather than by the magistrate, upon entering security; but this gives no general jurisdiction to the quarter sessions to be exercised by indictment.

Rule to Quash Indictment. Q. S. Lackawanna County.

H. A. Scragg, Assistant District Attorney, for Commonwealth.
R. H. Holgate, for defendant.

NEWCOMB, J., February 25, 1920.-Defendant was held to bail and thereupon indicted for refusing to stop his motor car at the request of an officer of the State Department of Highways.

At common law there is no such offense. The indictment therefore can only be supported by statute. Admittedly the only statute on the subject is that of June 30, 1919, P. L. 678. The offense in question is defined by section 26. But that prescribed no penalty for violation. For the penalty, reference must be had to section 33 where it is grouped with other offenses, all of which are made punishable by fine of not less than ten nor more than twenty-five dollars, to be collected by process of summary conviction: Subject, however, to the right of the accused at his option to be tried by a judge of the court of quarter sessions, rather than by the magistrate, upon complying with certain provisions for security. But this gives no general jurisdiction to the quarter sessions to be exercised by indictment; and even if it did there was no attempt to utilize such option. The Act is voluminous. Violation of some of its provisions is made punishable as a misdemeanor. In all such cases indictment will lie. Evidently the magistrate was laboring under some confusion of mind as between two groups of offenses. The result is that the proceeding here is coram non judice and void.

The rule to show cause is made absolute and the indictment quashed.

Howe's Estate.

Descent and Distribution. AbsenteemmPresumption of Death -Audit Re

funding Bonds-Act of 1885 -Fiduciaries Act of 1917.

The Absentee Act of 1895 does not provide an exclusive method for establishing the presumption of death, so that an audit in the Orphans' Court should not be suspended pending proceedings under the Act.

Under the Act of June 11, 1915, P. L. 945, amending the Absentee Act of 1885, which amendment was incorporated in the Fiduciaries Act of 1917, it is within the discretion of the Orphans' Court when satisfied from evidence adduced at an audit that there is no likelihood of a supposed absentee decedent being alive, to decree distribution on refunding bonds, without security.

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Audit. No. 409 September Term. O. C. Allegheny County.
R. T. M. McCready for accountant.

OVER, P. J., May 17, 1918.–Mary E. Howe died unmarried, without issue and intestate on the 29th of March, 1916. She left surviving her an uncle, George P. Howe, and five children of a deceased uncle. She had a brother, Wm. B. Howe, "a wanderer who went from place to place and was last heard from at the outbreak of the Spanish-American war, when he wrote his sister that he had been on a boat running from New York to Cuba, and was now to take part with the Cubans in that war." His relatives never heard of him being married. The questions here are:

1. Should this audit be suspended until the fact of the presumption of the brother's death has been established by proceedings in the Orphans' Court under the Absentee Act;

2. If not, should refunding bonds be required of the distributees.

In Miller v Executors, 3 S. & R., 490, it was held that “When a person has been absent many years without being heard of

a jury may and ought to presume death

and that a legatee over of personal property on such event might recover without giving security.” On page 493, Chief Justice Tilgham said, “As to the injury which might arise to John G. Schlosser by this presumption in case he should be alive, I think it ought not to be regarded. He would have his action against those 'to whom the money will be paid, and although he might lose by their insolvency, yet that would not be a greater evil than would arise from the establishment of the principle that the life of a man ought to be presumed under circumstances which usually attend death, merely because positive proof of death could not be obtained.” In Esterly's Appeal, 109 Pa., 222, where under the Act of April 11th, 1879, P. L. 21, trustees durante absentia had been appointed, Mr. Justice Clark said (page 229) “The rule is now well settled for most judicial purposes of whom n'o account can be given ends at the expiration of seven years from the time they were last known to be living," and held that A being presumed to be dead, the share of his father's estate went to A's children directly; they inherited as grandchildren, and that therefore A's creditors could not participate in the distribuion of the proceeds of such share. It seems clear then that unless the Absentee Act of 1885, which has been reenacted in the Fiduciaries Act of 1917, provided the only method of adjudicating the question of the presumption of death of an absentee, the question can be adjudicated at the audit of this account.

One of the purposes of the Absentee Act was to provide a method by which the Register of Wills could grant letters when the fact of death was not proven, and there was only the presumption of death by reason of absence, it having been held in Devlin v the Commonwealth, 101 Pa., 273, that letters so issued were void. In Maley's Executors v Pennsylvania Railroad Company, 258 Pa., 73, one of the assignments of error was that exclusive jurisdiction to adjudicate the fact of the presumption of death

Howe's Estate.

was vested in the Orphans' Court under the Act of 1885, which was not sustained. :: Mr. Justice Frazer, in discussing the question (page 78) said: “The Courts have frequently since the passage of the Act of 1885 assumed jurisdiction to pass on the question of the presumption of death without the formality of applying for letters of administration pursuant to that Act. For instance In re Petition of Mutual Benefit Company of Penna' for dissolution, Schoneman's Appeal, 174 Pa., 1, the Common Pleas decided the question in a proceeding to distribute the estate of a Mutual Benefit Association. In' Francis v Francis & Beale, 180 Pa., 644, proof of death of 211 absentee was received in the Common Pleas in an issue devisavit vel. non. on the will of another person, the Court not deeming it necessary to await a determination of the death of the absentee under the provisions of the Act of 1885;" and on page 79, that "the presumption of death from absence is as effective as direct proof of the fact of death, the rule being that property such person would have inherited does not vest in him, but passes directly to others entitled thereto;" Esterly's Appeal, 109 Pa., 222."

It follows then that as the Absentee Act did not provide an exclusive methodi oi establishing the presumption of death, this audit should not be susper:ded so that proceedings can be instituted under said act.

The next question is whether refunding bonds should be required from the distributees. As the presumption of death arose before the death of the decedent, under Esterly's Appeal and Miller Executors, supra, it would seem to be unnecessary; but in Sherwood's Estate, 206 Pa., 465, it was said that the rights of an absentee could not be disregarded in the distribution of his mother's estate; and in Maley's Executors v Pennsylvania Railroad Company, supra (page 81), that “the question as to the amount and sufficiency of the security that should be required to be entered by the distributees entitled to the fund is not before us and may properly be considered when the account of the administratrix comes before the Court for distribution.” There being then some doubt as to whether the provision of the Absentee's Act as to refunding bonds should mot be complied with, they will be required of the distributees.

The Absentee Act of 1885 was amended by the Act of June 11th, 1915, P. L. 945, as follows: "Provided further, however, That if the said Orphans' Court shall be satisfied from the evidence adduced at the hearing to have the supposed decedent declared legally dead, that there is no likelihood of his being still alive, then the said Court may, at its discretion, accept refunding bonds from the distributees of the supposed decedent's estate without requiring sureties thereon.". . Which amendment was reenacted in clause H Section 6, of the Fiduciaries Act of 1917, and as we are so satisfied, the refunding bonds of the distributees without security will be accepted

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Goodman's Petition.

Reimbursement

-Act of May 8,

Liquor Licenses_Monthly Installments

1919, P. L. 167.

Under the Act of May 8, 1919, P. L. 167, a licensee who paid for a wholesale and retail liquor license in monthly installments, is entitled to be reimbursed by the County Treasurer for the portion of the license fee paid by him for the time after July 1, 1919, during which he was prevented from carrying on the business for which he was licensed, by regulation of the President of the United States or the Secretary of War.

Rule to Refund License Money. Q. S. Lancaster County.

Bernard J. Myers, Deputy Attorney General, and J. Roland Kinser, County Solicitor, for Commonwealth.

B. F. Davis, for rule.

Bernard J. Myers, Deputy Atty. General, and J. Roland Kinser, County Solicitor, for Commonwealth.

HASSLER, J., April 17, 1920.—This is an application for a return of a portion of the license fees paid by the petitioner, who had a wholesale and retail liquor license granted to him by this Court. This application is made under the Act of May 8, 1919, P. L. 167.

The facts appearing in the petition, which are not denied, are that the petitioner was granted a wholesale and retail liquor license by this Court for the year beginning April 1, 1919, to carry on the said business in the City of Lancaster, Pa.; that he paid license fees up to February 1, 1920, amounting to $416.65, being at the rate of $41.67 a month; that he was prevented from engaging in the business, for which he was licensed, after July 1, 1920, by order or regulation of the President of the United States or Secretary of War, issued under authority of Acts of Congress. He therefore asks us to order the repayment to him of the sum of $291.67, being the proportionate amount of license fees paid for the time he was thus prevented from carrying on the business for which he was licensed.

The Act of May 8, 1919, P. L. 167, provides that, under this state of facts, the Court of Quarter Sessions shall make an order upon the County Treasurer, directing him to pay from the county treasury an amount suíficient to reimburse such license for the period for which he was prevented from engaging in business by such order. The Act further provides that the Court shall also determine the proportion of such refund which has been paid into the treasuries of the several municipalities and the proportion of such amount which has been paid into the treasury of the Commonwealth and shall made an order upon the treasurer of the respective municipalities and upon the State treasurer to return to the County treasurer such an amount.

The Court of Quarter Sessions of Philadelphia have decided, In re Petition of McCaffrey & Sons, not yet reported that under the Act of June 26, 1919, a licensee who has paid his license fee in monthly installments cannot, upon surrender of his license, recover a proportionate amount of the fee for the time he was prevented from, or interfered with, in the conduct of his business by the order of the President of the United States. The reason given for the conclusion arrived at in that case, is that that Act gives a right to have a proportionate part of the license fee returned, upon surrender of the license, only to those who have paid the “full annual license fee,” and not to those who have paid it in installments. Judge Ferguson, who delivered that opinion, also stated that an applicant was l'ot prevented from selling intoxicating liquor under his license by the President's order, as he might have sold it for export, because sales for that purpose were expressly excepted from the provisions of the order.

Goodman's Petition.

The application in this case is under the Act of May 8, 1919, P. L. 167 This Act is not repealed by the Act of June 26, 1919, which, however, does permit a licensee whose business has been interfered with by State or Federal laws or regulations, to surrender his license, and proceed under it. The Act of May 8, 1919 applies to all wholesale or retail dealers, &c., who have been prevented from engaging in such business by order, or regulation, of the President of the United States or Secretary of War. It contains n'o requirement that the license fee must have been paid in full, so that it applies to one who has paid that fee by installments, as well as it does to one who paid it in full at the time he obtained his license. The Act was passed to meet a condition that existed at the time. The President had issued an order virtually preventing the petitioner irom carrying on the business for which he had obtained a license, even though he might have continued to sell liquors for export. It was this interference with his business which the Act was intended to, and by its language does, protect him against The order was to end with the ending of the war and the demobilization of the army, which might be during the time for which his license was granted. When this would occur no one could tell, so that it was necessary for him to pay the monthly installments of his license fee, if he desired to resume business when the order ended, if it did end, for if he did not keep his license from terminating, he could not obtain one and resume his business until the next annual license court. Then, too, he would be under the disadvantage of having to apply at that court for a new license instead of the renewal of an old one. For these reasons he was justified in making the payments monthly, even though at the time he made them he knew that he was not able to conduct the business for which the license was granted.

We are convinced that the petitioner is entitled, under the Act of May 8, 1919, to have a proportionate part of his license returned to him.

It does not appear that any of the amount of the petitioner's license fee was paid either to the treasurer of the City of Lancaster or that of the Commonwealth of Pennsylvania; so it is, therefore, impossible for us to determine any such amount and to make an order upon the respective treasurers to pay such amounts to the treasurer of Lancaster County. If it is ascertained that any proportion of the license fee has been paid to the City or State Treasurer, this order can be amended so as to have any amount so paid returned to the County treasurer.

In conformity with the Act of Assembly, it is ordered that the County Treasurer pay to Samuel R. Goodman, the petitioner, the sum of $291.67, being the proportion of the license fee paid by him for the time he was prevented from carrying on the business for which he was licensed by order or regulation of the President of the United States or Secretary of War.

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