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Brown et al. v Hance

through defendant's public announcement at the Coraopolis Motor Car Company, where the car was stored.

The removal of Mr. Hance to Dayton was no secret. The public knew it; men who desire to remove for the purpose of cheating creditors do no: usually publicly declare their intention to remove. Both plaintiffs had been guests at defendant's home about the time of the attachment and had discussed with defendant the advisability of his moving to Lexington, Kentucky, instead of to Dayton, Ohio, for the reason that it would be more convenient in connection with the sale to defendant of the Kentucky property.

It was testified by Mrs. Hance that she wrote a letter, dictated by her husband, the defendant, to Mr. Brown, one of the plaintiffs, asking him to look up a place at Lexington, Kentucky, to which defendant could remove, and Mr. Miller, one of the plaintiffs, testified that he had advised defendant to remove to Lexington. So that it is clear plaintiffs knew of defendant's intent to remove from Coraopolis and out of the State, but we find no facts, nor can we infer or deduce from the whole testimony anything which would indicate defendant's intention to remove out of this jurisdiction with intent to defraud his creditors or for the purpose of defeating the plaintiffs in the enforcement of their claim, by reason of which plaintiffs would be unable to have execution thereon as alleged by plaintiffs in their statement.

Scrutinizing the entire record and testimony, as well as the arguments of counsel, giving equal attenticn to all the evidence submitted by both sides, comparing same and applying to the facts the law governing in this proceeding, we are not impressed with the belief, nor can we find therefrom any sufficient basis whatever upon which to sustain this attachment, or the reasons set forth in plaintiffs' statement for its issuance. It is possible that the merits of the case as to the plaintiffs' simple right to recover a judgment for their claim may prevail in the further procedure which will perhaps follow the dissolution of this attachment, which is hereby decreed, but that question is not now before us.

Henry's Estate.
Wills Trust Termination of Death of Husband Divorce.

Where á testator by his will created a trust in favor of his daughter providing that the trust might be ended upon her becoming "widowed through the death of her present husband,” such trust should not be terminated when the daughter obtains a divorce from her husband, that not being the testator's intention.

Rule to Show Cause Why Trust Should Not Be Terminated. O. C. Lancaster County.

John E. Malone, for petitioner,
John A. Coyle, for respondent.

SMITH, P. J., July 14, 1920.—This rule was granted to permit Ida E. Caldwell, the petitioner, to show cause why the trust created in her behalf by the will of her father, Benjamin F. Henry, should not be terminated.

The testator provided that the trust might be ended upon her becoming "widowed through the death of her present h'usband, D. Roy Caldwell." D. Roy. Caldwell is not dead, but at Chambers in the Circuit Court of the First Judicial Circuit, Territ:ɔry of Hawaii, on the 7th day of October, 1919, a decrce of divorce was entered dissolving the bonds of matrimony between Ida E. Caldwell and David R. Caldwell, to take effect from and after

Henry's Estate.

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October 17, 1919. The decree rests on the naked allegation in the petition of the libellant, Ida E. Caldwell, that David R. Caldwell “for a continuous period of two years next last past

has been habitually intemperate.” The only testimony offered was that “David R. Caldwell is not in the military or naval service of the United States."

In the interpretation of a will it is a fundamental principle that the intention of the testator shall prevail; and this principle is not controvertej because the will under consideration is interpreted differently from those in Koenig's Appeai, 57 Fa., 352, and Lee's Estate, 207 Pa., 218, whence it was held that divorces operate the termination of trusts during coverture, as would have the deaths of the husbands. The testators' intentions, though referring to similar conditions, were expressed differently in those cases than that of tire testator is in this one. That difference is the key to the distinguishing feature. The will here leaves nothing to speculation. The testator excludes all coi gencies which might sustain a dissolution of the trust except the death of D. Roy Caldwell. The exploiting of a grass widow is foiled by the testator defining the widow intended by him as one whose husband is dead. In saying, “Swould my said daughter Ida become widowed through the death of her present husband, namely, D. Roy Caldwell, then the amount held in trust for her shall be paid over to her," the testator does not imply that the payment shall be made if the widowing is accom: plished by an artificial or schematic process. The inference is diametrically the reverse. The testator's dominating purpose was to perpetuate the trust as long as D. Roy or David R. Caldwell is living. The unqualified prerequisite condition to its tei mination is the death of D. Roy Caldwell; and it is not difficult to find a reason for his intensity in this regard. No doubt he recognized that it would be a mere bagatelle to defeat his intention if the death of D. Roy Caldwell was not made a sine qua non. As easily could it be done as getting drunk or indulging in a prolonged spree in Hawaii; and quite as easily after the trust had been shattered could D. Roy Caldwell and Ida E. renew their previous relations, or, if agreeable to them, remain apart and divide the funds which the testator intended to have conserved by the trust, maybe, in proportions agreed upon between them before the divcrce proceedings were instituted. It was the testator's plan to frustrate just such a possible happening by locking the fund in a trust as long as D. Roy Caldwell inhabited this mundane sphere. Such was his intention, and by so finding the vested interests of remaindermen who have not had and who, it secms, ought to have had their day in Court are not jeopardized.

The rule is discharged; costs to be paid by the petitioner.

In re Brewed Liquors. LicensesAny Per Cent. Alcohol -Retail or Wholesale-Fees--Acts of

1887 and 1897.

The sale of vinous, spirituous and malt liquors containing less than onehalf of one per cent. alcohol is forbidden in Pennsylvania, and is a crime unless the seller is duly licensed under the Act of May 13, 1887, P. L. 113, and applies to sales at retail or wholesale.

A brewer, manufacturing malt or brewed liquors, containing any per cent. of alcohol, must pay the graduated license fees provided in the Act of July 30, 1897, P. L. 464, regardless as to whether or not the malt or brewed liquors brewed by it are intoxicating.

OFFICE OF THE ATTORNEY GENERAL,

Harrisburg, Pa.

August 18, 1920.

Hon. Charles A. Snyder,
Auditor General,

Harrisburg, Pa.
Sir:

Your request of the 10th instant for an opinion from this Department as to whether a brewing company which brewed beer having an alcoholic content of 2.75/100 per centum by volume and beer having an alcoholic content of less than one-half of one per cent, neither of said beers being intoxicating, is liable to pay only the minimum brewer's license fee, or the graduated license fees fixed under the Act of July 30, 1897, P. L. 464.

In an opinion rendered by the Attorney General to the Director of the Bureau of Food, holding that the drink called “Virginia Dare Wine" did not come within the nonalcoholic drink Act of March 11, 1909, P. L. 15, as amended by the Act of June 16, 1919, P. L. 480, and was therefore not subject to the supervision of that officer, it was said:

"The Act of May 13, 1887, P. L. 108, known as the 'Brooks high license law,' prohibits the sale, without a license, of 'spirituous, vinuous, malt and brewed liquors.' In constructing this act of assembly it has been held that if a liquor is vinuous or spirituous a conviction may be sustained, even though there was no evidence that the liquor was intoxicating or had an intoxicating effect. Com. v Reyburg, 122 Pa., 299; and that if the liquor. sold without a license contained any alcohol such sale violated the law,even though the percentage of alcohol was slight. Convictions have been sustained where the drink was admitted to contain 87/100 of one per cent: Com. v Wenzel, 24 Pa., Super. Ct., 467. It has also been held that it is a violation of this law to sell liquor containing two per cent of alcohol, even though there be no evidence that the drink was intoxicating. Hatfield v Com., 120 Pa., 395; Com. v Burns, 38 Pa. Super. Ct., 514.

"I am, therefore, of the opinion that the act of congress has not superseded the Brooks high license law in so far as beverages are concerned which contain less than one-half of one per centum of alcohol by volume, and that a license is required to sell such beverages.

The sale of vinuous, spirituous and malt liquors containing less than one-half of one per cent alcohol is forbidden in Pennsylvania, and is a crime unless the seller is duly licensed. The criminal provisions of the Act of May 13, 1887, Section 15, P. L. 113, apply to all sales of liquor at wholesale or retail, and not to retail sales exclusively.

Commonwealth v Sweitzer, 129 Pa., 644.
Commonwealth v Matis, 55 Pa. Super, Ct., 551.

Judge Maxey, of Lackawanna County, in an opinion rendered March 2, 1920, reported in 48 Pa. C. C., at page 494, states in reference to the whole

In re Brewed Liquors.

sale Act of July 30, 1897, P. L. 464, that the purpose of this Act as expressed in the title is "To provide revenue and regulate the sale of malt, brewed, vinuous and spirituous liquors or any admixture thereof."

“The mere fact that the framer of the title of the act erroneously used the phrase 'intoxicating liquors' in indexing part of the contents of the act, instead of the words ‘vinuous, spirituous, malt and brewed liquors,' which are used in the act itself, would not warrant the inference that the act required increased license fees only for the sale of intoxicating beverages.

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"It would be a bold exercise of judicial power to find as a fact that the sole purpose of our liquor license laws was to regulate the sale of intoxicating liquors, and to declare those laws nullified because such purpose

no longer be served. 'Liquor' is any beverage that contains alcohol, and even though the alcoholic content is less than one-half of one per cent, the beverage is liquor still and some citizens may still desire to drink it, and the state may continue to deem it expedient to place restrictions around and derive revenue from its sale."

In licensing brewers under the Act of July 30, 1897, P. L. 464, the Court of Quarter Sessions must construe this Act in harmony with the other acts in regard to the sale of liquors.

Judge Rice of the Superior Court said, in the following case:

“A brewer needs no license to manufauture, but the general policy of the Commonwealth, as exhibited by and embodied in its statutes, forbids him to sell the product of his manufacture without complying with certain conditions precedent which the State has prescribed. By complying with them he obtains the privilege to sell—a privilege not enjoyed by the generality of citizens. The privilege to sell generally is obtained through proceedings in the Court of Quarter Sessions, but the privilege to sell only to dealers licensech by the court may be obtained by paying a certain sum into the state treasury and obtaining from the state treasurer 'a certificate thereof which shall be framed and exposed to view in said brewery.' This right or privilege is, in both classes of cases, granted by the State, and permits the doing of that which without such grant would be unlawful. * * * The rule applies * that all other acts in pari materia may be consulted to ascertain the intent of the legislature: Endlich on Interpretation of Statutes, Sec. 356. Particularly should the rule apply when the two acts were passed at the same session of the legislature."

Com. v Mutual Union Brewing Co., 58 Pa. Super. Ct., 647.

In accordance with the decisions cited above, you are therefore advised that a brewer, manufacturing malt or brewed liquors containing any per cent of alcohol, must pay the graduated license fees provided in the Act of July 30, 1897, P. L. 464, regardless as to whether or not the malt or brewed liquors brewed by it are intoxicating.

Very truly yours,
WILLIAM I. SWOOPE,

Deputy Attorney General.

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Beckert's Estate.

Cancellation

Widow's Share

Wills-Account Against Beneficiaries

Election-Gift.

Where testator kept a book account against his stepson and entered in his own handwriting over this account a memorandum in these words: “in event of my death this is to be cancelled,” and in his will he said: "I also release him from the payment of any and all moneys that may be owing from him to me at the time of my decease, no matter how evidenced, and I hereby direct my executors to turn over to him all evidences of such indebtedness, as I do not wish him to be embarrassed by holding such indebtedness over him." The widow elected to take against the will and it was held that this was not a gift inter vivos and that she was entitled to her distributive share of this debt as it was an asset of the estate, the share due the estate being cancelled.

A notation over an account kept by decedent against another stated: “This account is not intended as a liability against T. F. B., but is only kept as a memorandum of outlay. As a claim against him it is to be cancelled. Cancelled and Void (signed W. C. Beckert). This was held to be a gift by decedent in his lifetime and was not a part of his estate at the time of his death and not liable to the distributive share of the widow, who elected to take against the will.

Exceptions to Audit. No. 338 January Term, 1919. 0. C. Allegheny County.

J. M. Shields and A. B. Angncy, for accountant.
W. S. W’alsh, for exceptant.
J. O. Wicks, for Commonwealth.

TRIMBLE, J., for the Court in Banc, Oct. 11, 1919.—The decedent kept a book account against his stepson Aaron L. Haines, otherwise known as Aaron L. Beckert, which at the time of his death amounted to $4,368.90, and entered in his own handwriting over this account a memorandum in these words: “in event of my death this to be cancelled," and in his will he said: “I also release him from the payment of any and all moneys that may be owing from him to me at the time of my decease no matter how evidenced, and I hereby direct my executor to turn over to him all evidences of such indebtedness as I do not wish him to be embarrassed by holding such indebtedness over him." The decedent's widow elected to take against his will, and claims that this book account is an asset of the estate, and that she, by virtue of her election is entitled to distribution of one-half of it. It is difficult to see why she is not entitled to what she claims, because if the testator desired to defeat her lawful claim he could dispose of the whole of his estate in the same manner instead of a part of it. It was not a gift inter vivos, but a voluntary release from liability, to take effect by testamentary disposition at death. It cannot be argued that the book account is not collectible, and therefore not an asset, because by the will there is an absolute devise to Aaron L. Haines of the decedent's property in New Kensington, Westmoreland County, Pennsylvania. The election of the widow to take against the will is the equivalent to her death; Wyllner's Estate, 65 Pa. Sup. Ct., 396, and thereupon the annuities of the income in excess of the testamentary allowance to the widow are accelerated, and by the ninth clause of the will of the estate remaining, after the widow's share is distributed to her by virtue of her election, Aaron L. Beckert is entitled to three-twelfths of the income, that is one-sixth which would have been taken by the widow if she had not elected to take against the will and onetwelfth which was given to him absolutely, until all of the other beneficiaries are deceased, “or until his death should he die prior to all of the other of said beneficiaries; and upon the death of any of the other beneficiaries his or her portion of such excess income shall be paid to remaining beneficiaries in equal shares; and upon the death of all of said beneficiaries with the exception of Aaron L. Beckert, then out of the income

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