Shepard v Pennsylvania Railroad Co. into between the Pennsylvania Railroad and the Boroughs of Braddock and North Braddock, by the terms of which the two Boroughs agreed to vacate, or cause to be vacated, that part of Fourth Street which lies within the rightof-way of the lines of the Pennsylvania Railroad Company, upon the construction by the Pennsylvania Railroad Company of an undergrade crossing described in said contract. The officers of the two Boroughs had, on the 12th day of April, 1912, by the ordinance of North Braddock, and on the 24th of April, 1912, by the ordinance of Braddock, been duly authorized to enter into this contract with the Pennsylvania Railroad. In pursuance of this contract the Pennsylvania Railroad proceeded to construct the undergrade crossing, at a point about 170 feet East of the old grade crossing of Fourth Street, and raised its tracks and closed the crossing of Fourth Street. The Boroughs of North Braddock and Braddock never passed the ordinances vacating that part of Fourth Street within the lines of the Pennsylvania Railroad Company's right-of-way. The plaintiff has brought this suit for trespass to recover damages from the Railroad Company for the obstruction of Fourth Street within the lines of its right-of-way. It is not claimed by counsel for the plaintiff that the plaintiff would have any standing here to claim damages if, in pursuance of the agreement of the two Boroughs with the Pennsylvania Railroad Company the Boroughs had formally vacated that part of Fourth Street included within the lines of the Railroad Company's right-of-way, but bases its claim solely upon the ground that Fourth Street was never vacated and is now and was at the time the Pennsylvania Railroad Company built the obstruction at the grade crossing a public highway, and therefore the Pennsylvania Railroad is maintaining a nuisance, and while it was a public nuisance the plaintiff claims that he is especially damaged. We cannot agree with the contention of the plaintiff's counsel. In Pennsylvania equitable defenses are allowed in common law cases, and the defense of the Railroad Company in this case, while an equitable defense, yet it is a perfect and good defense in an action at law. Equity considers that done which one has agreed to do, and the Boroughs of North Braddock and Braddock having agreed to vacate the part of Fourth Street which the Railroad Company has obstructed, and the Railroad Company acting upon that agreement performed its part of the contract, equity considers that the part of the street occupied by the Railroad Company is vacated for every purpose consistent with the agreement of the Boroughs with the Pennsylvania Railroad. This question has been ruled in the case of McGee's Appeal, 114 Pa., 470, in a case identical with this in every respect, except that in McGee's Appeal the question was raised in a bill in equity to enjoin the railroad company from closing the street, whereas in this case the suit is brought for damages for having closed the street. In view, as we have said, that equitable defenses are allowed in common law cases in Pennsylvania, we see no distinction between the principles laid down in McGee's Appeal and those applicable to the case at bar. Motion for a new trial is refused. In re Estate of Rosina Mensdorf. Descent and Distribution—Will- -Share and Share Alike Children and The words "share and share alike" refer as well to classes as to individuals. These words generally indicate a per capita distribution, but if there is any doubt in the interpretation, the policy of the statutes will be followed and distribution made per stirpes, so that two grandchildren were awarded their mother's share where testatrix in one clause of her will named them specifically as entitled to share alike with her children, but in a subsequent clause referred to their portion as a "share." Audit. No. 50 September Term, 1919. O. C. Allegheny County. Addison Lyon, for accountant. MITCHELL, J., February 26, 1920.-The question is, whether the distribution under the will of this decedent is per stirpes or per capita. Rosina Mensdorf died May 2nd, 1916, testate, and her will duly probated contains the following provisions which are material to the question: "Third: I give, devise and bequeath all the remainder of my estate, real, personal and mixed, of whatsoever kind and wheresoever situate, share and share alike to my children, namely: William F. Cook, Henrietta L. Kephart, Rosela Fell and Laura M. Walker, and my two grandsons, namely: Joseph Bruce Hezlep and Henry David Hezlep, sons of my deceased daughter, Clara Hezlep. Fourth: I hereby constitute and appoint my son William F. Cook, guardian and trustee of my two said grandsons' Joseph Bruce Hezlep and Henry David Hezlep's share of my estate. Said share to be given to my said grandsons, Joseph Bruce Hezlep and Henry David Hezlep, when they reach the age of twenty-one years respectively." Under the foregoing paragraphs what share are these grandsons, who are minors, entitled to have? We must resort to both the foregoing paragraphs of the will to ascertain the intention of the testatrix. The guardian ad litem representing these minors has filed a very full brief showing a thorough study of the subject. In his oral argument he very ably contended for a per capita distribution. The third paragraph of the will divides the beneficiaries into two classes, viz: the children of testatrix in one group, and connected by the conjunction "and" the two grandsons, described by name, and as sons of a deceased daughter, are placed in another group. The words "share and share alike," refer as well to classes as to individuals; Ashburner's Estate, 159 Pa., 547. True, these words generally indicate a per capita distribution, but if there is any doubt in the interpretation, the policy of the statutes will be followed and distribution made per stirpes; Scott's Estate, 163 Pa., 169. The fourth paragraph helps in our conclusion. Testatrix appointed her son, "guardian and trustee of my two said grandsons, Joseph Bruce Hezlep and Henry David Hezlep's, share of my estate. Said share to be given to my said grandson's Joseph Bruce Hezlep and Henry David Hezlep, when they reach the age of twenty-one years respectively." The singular "share" is twice used here, and clarifies the intention of the testatrix. Even if the words of the third paragraph would leave us in doubt whether a per stirpes distribution was intended, the fourth makes it clear that the grandsons take the share their mother would naturally take if living. Where by one clause of the will a distribution of property per capita is directed, and by a subsequent contradictory clause a distribution per stirpes, the latter may be held to control; Schouler on Wills, Vol. 1, page 540. In re Estate of Rosina Mensdorf. We are therefore of the opinion that, considering the entire will, these grandsons together are entitled to one share, or one-fifth of the residuary estate, and the distribution is per stirpes. The fee of George T. Emery, Jr., guardian ad litem, is fixed at $50.00, to be paid out of the estate. A decree of distribution will follow accordingly. King v King. Divorce Answer- -Setting Up Defense Not Pleaded--Testimony-Competency-Failure to Call Witnesses. Where respondent in a divorce proceeding denied her desertion and set up libellant's desertion, but at the hearing admitted her desertion and offered a Justification for her so doing, the burden of proof shifts and respondent must prove such conduct on behalf of libellant by a preponderance of evidence as would entitle her to a divorce. Respondent in a divorce proceeding is limited at the hearing to questions raised by her answer and cannot offer proof to justify her desertion after having denied the same in her pleading. Failure to call available witnesses in a divorce proceeding or account for their non-production leads to the irresistible inference that they would not corroborate the testimony of respondent. Exceptions to Master's Report. No. 40 May Term, 1919. C. P. Somerset County. Alexander King and C. L. Shaver, for libellant. John G. Ogle, for respondent. PRATHER, J., of the 30th Judicial District, Specially Presiding, April 21, 1920.--The alleged cause of divorce is desertion. To this complaint respondent files her answer denying her desertion and averring that her husband deserted her. The parties were ably and zealously represented before the master and before the court. It is urged that the master erred in recommending a decree. After a careful consideration of the testimony we are of the opinion that the master reached the correct conclusion, which he fortifies by abundant citations of authorities. Recognizing the well established rule urged by respondent's counsel and fully considered by the master, that the burden is upon the libellant to establish every material statutory averment in his complaint, we are brought face to face with the rule laid down in Ingram v Ingram, 58 Pa. Super. Ct., 522, as stated in the syllabus. "Where a husband filed a libel against his wife for divorce on the ground of desertion, and the respondent in her answer avers that she was compelled to abandon her husband's home by reason of his cruel and barbarous treatment and indignities to her person, the burden of proof is upon the wife, and in order to prevail she must establish by the preponderance of the evidence a state of facts that will entitle her to a decree of divorce on the grounds advanced in her answer." Concerning this rule, and as applicable to the facts recited, the Superior Court said: "The burden of proof was thus shifted, as all of the authorities declare, and it became incumbent on the respondent to establish by the preponderance King v King. of the evidence, a state of facts that would entitle her to a decree of divorce on the grounds advanced in her answer above quoted." In Renard v Renard, 60 Pa. Sup. Ct., 386, where a wife was resisting her husband's application for divorce on the charge of desertion, the Superior Court said: "The fact of desertion is admitted. The wife left the husband. She claims, however, that she was justified. The burden of proof therefore is on her and she must prove such cruel and barbarous treatment and indignities to her person by the preponderance of the evidence as will entitle her to a divorce." See Detrick's Appeals, 117 Pa., 452. In the case before us we have respondent's formal answer filed, simply denying the alleged desertion and averring libellant's desertion. The defense in fact however abandons the denied desertion and counter allegation by admitting respondent's desertion and setting up a justification. The first question raised is the competency of any proof of justification under the respondent's answer. It is doubtful whether respondent offered any competent testimony under the pleadings. In other words, was she not limited to proof that her husband had deserted her, that being the only matrimonial dereliction charged in her answer? To this legal inquiry the cases cited suggest an affirmative answer. But we are not required to so hold as the case turns upon the principle directly and unquivocally decided therein, that at least the burden was upon her to establish by a preponderance of the evidence that she was entitled to a divorce. We agree with the learned master that she has not met this burden. The fact that she calls no corroborating witness to any of the important matters upon which she relies, is a circumstance that materially and significally weakens her contention. Respondent in her testimony discloses the fact that Dr. Brooks, her mother and her sister were all available and material witnesses to her condition of health, and as to her injury complained of and charged to her husband's neglect and in exoneration of herself for her continued repeated and protracted absences from her husband's domicile. Being represented by earnest and able counsel, her failure to call them and failure to account for their non-production, cannot be considered an oversight. The irresistible inference is that they would not corroborate her or they would have been called. True it is that she says her mother had rheumatism and neuritis, but that would not prevent the taking of her testimony on a rule. We are convinced that libellant has met the burden the law imposes upon him, and that respondent has failed to meet hers; and hence a decree in divorce should be entered according to libellant's prayer. In re Advertisements. Board of Prison Inspectors-Owner of Newspaper-Supplies-Act of April 23, 1903. An advertisement does not fall within any legal definition of "Supplies," so that the Act of April 23, 1903, prohibiting any officer or member of the board of managers of a state institution being connected with the sale, either directly or indirectly, of supplies to such institution, does not apply to one who was a stockholder in a newspaper which printed notice of a final discharge from parole of convicts, and this would not be a bar to his acting as a member of the board of prison inspectors of a penitentiary. Your letter of the third of June, 1920, asking for an opinion from this Department as to whether advertisements, pertaining to the final discharge from parole of convicts, can be published in a newspaper which is owned by a corporation of which a member and officer of the Board of Inspectors of the Western Penitentiary is an officer, duly received. In reply would say that the first section of the Act of April 23, 1903, declares that "It shall not be lawful for any officer or member of the board of managers of an institution, at a time when said institution is receiving state moneys from legislative appropriations, to furnish supplies to such institution, either by direct sale or sale through an agent or firm, or to act as an agent for another in so furnishing supplies." The Supreme Court has held that this is a penal statute and must be strictly construed. Trainer v Wolfe, 140 Pa., 279. The question which you raise is whether an advertisement, required to be made by the officers of the Western Penitentiary, comes under "supplies" prohibited under this Act of April 23, 1903. The word "Supplies" was generally supposed to mean sustenance, which is food, fuel, bedding or articles of daily necessity, but now has a broader meaning. The Century Dictionary defines it to mean "the act of supplying what is wanted or that which is supplied; * * * a quantity of something supplied or on hand." In the following case it was held that the word "Supplies" means that township supervisors are not permitted to employ their own teams or minor children upon the township roads. In re Hazle Township, 6 Kulp, 491. The word "Supplies" has been defined to be "any substance, the use of which might reasonably tend to the working or development of a mine." Grants Pass Trust Co. v Enterprise Mine Co., 113 Pac., 859. As advertisements do not fall within any of the legal definitions of "Supplies," you are therefore advised that the law does not prohibit the insertion of the advertisement pertaining to the final discharge from parole of convicts from the Western Penitentiary in a paper published by a corporation of which a member of the Board is a Director. Yours truly, WM. I. SWOOPE, Deputy Attorney General. |
