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Donnelly's Estate.

household furniture, also that the decree made by the Orphans' Court on December 11th, 1907, directing the administrator c. t. a. d. b. n. "to take immediate charge of the assets of the said estate subject to final adjustment on the filing of the final account of the executors," includes the paintings or household furniture, and alleges that said paintings or household furniture were her own property during the lifetime of the decedent, and have been since that time in her exclusive possession and control down to the present time. The exceptions of Mrs. Donnelly were dismissed, and subsequently an order was made amending this decree without prejudice to the parties to determine the title to the paintings by further proceedings.

9. On February 24th, 1917, the administrator c. t. a. d. b. n. filed its petition praying for an order to enforce the decree to take immediate charge of the assets of the estate subject to the final adjustment of the filing of the final account of the executors, entered on the 11th of December, 1907. An answer was filed thereto by Mrs. Donnelly, wherein she claimed these paintings. It having appeared to the trial Judge that four decrees of this Court had been made wherein the paintings were included, that the only way that the question of title could be raised was by petition to open all of the decrees and thereupon, on the 3rd day of November, 1919, a decree was made directing the widow of the decedent to forthwith deliver to the administrator c. t. a. d. b. n. the paintings in dispute in this case.

10. After the last mentioned decree was entered the petitioners, on November 29th, 1919, presented their petitions to open the decrees, alleging therein that the paintings “were improperly and mistakenly and against her protest included in the said inventory, and that she did not sign the said inventory, or account, and that she did not know that her property had been included in the inventory * *; that the paintings never were the property of the estate of Charles Donnelly, but were her own sole and separate property," and prayed to grant a review of said accounts because of the errors hereinbefore cited. Citations were issued to the administrator c. t. a. d. b. n. and all of the creditors of the Donnelly estate, which were served, answers were filed, and it appears from the testimony which was taken that Mrs. Donnelly has had continuous possession of these paintings from the day of her husband's death on December 5th, 1906, without any interference by anybody or any claim by anybody, until February 24th, 1917, when the administrator filed its petition praying for delivery in accordance, as it alleged, with the original order above mentioned made on December 11th, 1907.

11. It further appears from the oral testimony submitted at this trial that it is an undisputed fact that Charles Donnelly gave to Mrs. Donnelly the paintings which she now claims as her own, and the only question before the Court is whether she has been estopped by her conduct from claiming that mistakes were made in including these paintings and household effects in the inventory and accounts.

We cannot be convinced by an argument that court records when made are to remain forever, and therefore inviolate. Of course

a decree cannot be violated; but this does not mean that a Court of Equity cannot change it, when it is shown that a mistake has been made, and that a refusal would be inequitable. There are many cases sustaining the right to open decrees when injurious mistakes have occurred, both under the Statute of October 13th, 1840, anc without reference to it, and it does not seem necessary to cite them. Reference, however, is made to Sloan's Est., 254 Pa., 346. There, commissions were charged on an amount improperly and mistakenly included in the account, and the Court after opening the decree, restated the account by subtracting the amount mistakenly charged and the commissions calculated thereon. See paper

Donnelly's Estate.

books in that case. No person has been wronged, or has lost by any act of Mrs. Donnelly. The property in question is all intact in her possession. Neither the administrator c. t. a. d. b. n. nor any creditor attempted to disturb her possession from 1906 until 1917. It was a mistake to inventory and appraise the paintings and household furniture, and account for them, after Mrs. Donnelly protested, without notice to her. It was the duty of the appraisers to have reported her protest, and she never knew anything about the appraisement or the accounting of the property until long after both acts were done. The administrator and creditors had notice of her claim from her counsel at one of the audits on June 20th, 1913, after she had employed another than counsel for the estate who had represented her until this audit, and they should have proceeded at once to recover the property from her, and not charge her with laches without frankly admitting their own. When a mistake in proceedure was made, surely this cannot be held against the petitioner here and hold her to further lachęs, when all of the counsel on both sides of the case had adopted this method of determining the title to the property. Mrs. Donnelly never elected to take under or against her husband's will, nor did she take any part in the administration of the estate, except to loan some money to the executors to carry it on. She was not present at the audit, and did not know the paintings were a part of the distribution to the adminisrator c. t. a. d. b. n. No person knew or thought the estate was insolvent; it became so in part by a great slump in the real estate market, and some investments which were believed to be good after Mr. Donnelly's death. The administrator d. b. n. c. t. a. in its petition filed February 24th, 1917, praying for delivery of the paintings, alleged that "it was not ascertained for many years after the death of the decedent whether or not his estate would prove solvent or insolvent.” It is true that Mrs. Donnelly in her petition to recover money the family had loaned to the executors, admitted that they had filed their account, and that the assets in the hands of the executors were turned over to the administrator c. t. a. d. b. n.; but this is not an admission that the paintings were turned over, because she did not consider these an asset of the estate, and aways retained possession of them. If the administrator believed that the title was in the estate it should have demanded the paintings and gotten possession, insured and concerted them, and not waited more than ten years before making any effort to do what should have been done promptly. It is undisputed that these paintings were left in the custody of Mrs. Donnelly; that she placed them in the Carnegie Art Gallery, and took them home again, has kept them insured and cared for them at her own expense continuously since her husband's death. There is nothing in the argument that Mrs. Donnelly through her counsel, Mr. Jennings, claimed these at the audit on June 20th, 1913, for the "family," because the testimony shows that some paintings in the home did belong to some of Mr. Donnelly's children, and this accounts for the statement of counsel. Nor is there any significance in the testamentary bequest of the paintings, for Mr. Donnelly's will was made ten years and the codicil seven years before the decedent's death, and the testimony shows that shortly before his death, and at other times after the will ard codicil were executed, declarations were made by the decedent that the paintings and household furniture belonged to his wife. The testimony of interested and disinterested witnesses, all point unerringly and without contradiction to the conclusion that the decedent made a gift of his paintings and household effects, to his wife, in his lifetime. There is no question to be submitted to a jury, because there is no disputed question of fact.

The decree in the above case will be opened, the account restated, and distribution of the paintings and household effects made to petitioner.

Mitchell v William Penn Hotel Co.

Trespass -Hotel-Loss of Bag and ContentsDemurrer-Act of June

12, 1913.

On a statutory demurrer the liability of a hotel was held to be limited to $50.00 under the Act of June 12, 1913, where plaintiff checked his bag and contents at the place provided for the checking of such articles, was given a check for the same, and upon the same day presented the check and requested the return of his bag. He was thereupon informed that the bag could not be found.

Statutory Demurrer. No. 2310 January Term, 1920. C. P. Allegheny County.

Calvert, Thompson & Wilson, for plaintiff.
Prichard & Trent, for defendant.

Before Evans, HAYMAKER and Cohen, JJ.

Evans, J., June 25, 1920.—The plaintiff filed his statement alleging that he became a guest of the William Penn Hotel, a corporation of the State of Pennsylvania, and checked his bag and contents at the said hotel at the place provided for the checking of such articles; plaintiff intending to take his meals at the hotel; that, in return, he was given a check for the same. Thereafter he dined and became a guest, and upon the same day presented the check and requested the return of his bag. He was thereupon informed that the bag could not be found. He immediately reported his loss to the management of the hotel and was informed that they would make every effort to locate it. Plaintiff alleges that he has not been able to obtain his bag and that the bag and contents are worth $200.00, and brings this suit to recover, and lays his damages at $250.00.

The defendant files an affidavit of defense admitting its liability for the sum of $50.00, and alleges that by virtue of the Act of Assembly of June 12, 1913, Section 4, it is not liable for more than the amount which it has admitted to be due. The case came on to be heard on the affidavit of defense filed by the defendant.

Section 4 referred to in the defendant's affidavit of defense is as follows: "The liability of the keeper of any inn or hotel, whether individual, partnership, or corporation, for loss or injury to personal property placed by his guest under his care, other than that described in the preceding sections, shall be that of a depository for hire, except that in cases such loss or injury is caused by fire, not intentionally produced by the hotel proprietor or innkeeper or his servants, such hotel proprietor or innkeeper shall not be liable: Provided, however, That in no case shall such liability exceed the sum of one hundred and fifty dollars for each trunk and its contents, fifty dollars for each valise and its contents, and ten dollars for each box, bundle, or package, and contents, so placed under his care, etc." It is contended by the defendant that this section governs the liability of the defendant in the case at bar. The plaintiff alleges that this property is excluded from Section 4 by the words "other than that described in the preceding sections." Section 1 fixes the liability for goods which have been placed in a safe or vault and consists of such property as money, bank notes, jewelry, etc., which does not include the property in dispute in this

Section 2 fixes the liability of a hotel proprietor for property which was received by the innkeeper under a special arrangement with the guest. Section 3 does not refer specially to any property at all, but provides for


Mitchell v William Penn Hotel Co.

the manner in which the property shall be deposited and the general liability of the hotel proprietor for negligence of himself or his servants. We think it clear that the property, the loss for which has been sued for in the case at bar, is such property as is described in Section 4, and that the liability of the innkeeper is limited to $50.00.

And now, June 26, 1920, this case came on to be heard on the affidavit of defense which raises simply a question of law, and in consideration thereof the statutory demurrer filed by the defendant is sustained.

In Re Corporation Names.

Family Names Individuality-Company-Corporation.

An application for a charter and the granting of letters patent under the name of "Jacobs" is objectionable and should be refused. The name usurps the use of a family name, does not indicate that it is a corporation, nor does it possess any individuality.


Harrisburg, Pa.

October 6, 1920.

Honorable William C. Sproul,
Governor of the Commonwealth,

Harrisburg, Pa.:


I have before me the application of Samuel Shuman and others for a charter and the granting of letters patent to them under the name “Jacobs,” together with your request to be advised whether a charter should be granted.

There is one objection to this proposed charter, in my judgment, which requires its refusal The name “Jacobs" is a family name. The name does not indicate that it is a corporation, nor does it possess any individuality. The granting of a charter under such an appellation would give sanction to a practice which would encourage others to pre-empt a family name as a corporate name, and thus exclude others of the same name from the use thereof.

I am advised that in some States there is legislation forbidding a corporation to take the name of a person without adding the word "company” or “corporation.” It has been held in some jurisdictions that a proposed corporation may not adopt the name of a person as its name over his protest, and where it does so it is liable to him for the subsequent damages.

See C. H. Batchelder & Co. v Batchelder, 220 Mass., 42.

While I have not found in this or other jurisdictions any precedent covering the precise question before you, I am of opinion that sound public policy requires the refusal of this charter.

Very truly yours,


Attorney General.

McCully's Estate.

Devise-Religious Use Church Merger-Effect of.

A devise to a church for a religious use is not void where the church is merged with another, under a different name, the new organization containing the members of the former congregations and the same character of religious work being continued in the same community.

Exceptions. No. 261 April Term, 1920. 0. C. Allegheny County.

H. E. Carmack, for accountant.
Wm. Boyd Duff, for exceptant.

MILLER, P: J., July 14, 1920.–The question is whether a devise to a church, afterwards merged under another name, is valid.

Testatrix made her will dated August 13th, 1913, wherein, after providing that the whole of her estate shall be converted into money, her debts, funeral expenses, etc., paid, she directed that all her estate as converted be divided into two equal parts and disposed of as follows: “One share thereof to go to Grace Presbyterian Church of Pittsburgh, and the other part to go to my cousins (naming them) share and share alike.” She died May 9th, 1915.

At the time of making her will she was a member of and contributed to the Grace Presbyterian Church. This church was three blocks away from another Presbyterian Church in that vicinity, called the East End Presbyterian Church; both were doing the same church and religious work in that immediate vicinity.

Between the time of the making of the will and the decedent's death Grace Presbyterian Church and the East End Presbyterian Church were merged under the sanction of the Presbytery, and given the name of the Waverly Presbyterian Church; all the members of the two former churches became members of the new church, testatrix among them, her name appearing on the records of the Waverly Presbyterian Church, and she died a member of the Waverly Presbyterian Church. After the merger, and before her death, the charter of Grace Presbyterian Church was no longer in effect as of a separate organization. The religious work done by the merged church is in the same district, under the same methods, and largely by the same individuals as was that done by Grace Church.

The devise to Grace Presbyterian Church was clearly for religious use. As a member of the general body of the Presbyterian Church this testatrix knew that all local churches were under the control of the Presbytery, and that both the Presbytery and individual churches act under direction of Boards of Trustees or Members of the Session, and that a gift to the church by name was a gift for religious use, to be administered by the officers of the church.

It cannot be said, therefore, that when the charter of the Grace Presbyterian Church was surrendered the religious use created by the will terminated; on the contrary, it, and by the co-operation of the testatrix herself as a member of Grace Church, was to be effectuated in that vicinity under the jurisdiction of the proper officers for the same purposes. The name of the local organization as merged is immaterial as compared with the purpose, which continued and must have been in the mind of the testatrix and with her acquiescence when the merger took place. This merger of Grace Church into the Waverly Church was not a cessation of the religious work or the religious purposes carried on formerly under the name of Grace Church; the work of the church was continued by its officers and members under the new name, without the surrender of any function or use of any church property for religious purposes so far as the former Grace Church was concerned.

If when the charter of Grace Church was surrendered the religious work that it had done, and which it was intended by testatrix under her devise should

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