Section 12 of the Act provides that, LANCASTER LAW REVIEW." It shall be the duty of the register of VOL. XXXII.] FRIDAY, NOV. 6, 1914. Orphans' Court. wills of the county, in which letters testa[No.1 mentary or of administration are granted, to appoint an appraiser, as often as and whenever occasion may require, to fix the valuation of estates, which are or shall be subject to collateral inheritance tax; and it shall be the duty of such appraiser to make a fair and conscionable appraisement of such estates; . . . Provided, That any person or persons, not satisfied with said appraisement, shall have the right to appeal, within thirty days." Estate of Geo. D. Coates, deceased. Collateral inheritance tax-Appraisement -Appeal. An appeal from an appraisement of real estate for collateral inheritance tax will be dismissed where taken more than thirty days after the filing of the appraisement. Appeal from collateral appraisement. O. C. Lancaster Co. May Term 1914, No. 10. On the 18th day of February, 1913, A. H. Diffenbaugh was appointed appraiser to value the real estate, and on the same day filed his appraisement estimating its value at $14,000.00. It does not appear on whose motion the appraiser was appointed, nor where or how Chas. E. Workman and H. R. Fulton, the appraisement was made, or who was for appeal. M. E. Musser, contra. present. No exceptions were filed to it, but on July 9, 1914, Granville Coates and Howard Coates as heirs took the ap October 8, 1914. Opinion by SMITH, peal now before us. As if of the formal P. J. George D. Coates died seised of real estate subject to collateral inheritance tax. Section 8 of the Act of May 6, 1887, P. L. 79, provides that, "Whenever any real estate of which any decedent may die seised shall be subject to collateral inheritance tax, it shall be the duty of executors and administrators to give information thereof to the register of the county where administration has been granted, within six months after they undertake the execution of their respective duties, or if the fact be not known to them within that period, within one month after the same shall have come to their knowledge; and it shall be the duty of the owners of such estates, immediately upon the vesting of the estate, to give information thereof to the register having jurisdiction of the granting of administration." The inference is that the administrators of the estate "within six months gave to the Register the information required by the Act, and that the owners immediately upon the vesting" did the same. appeal is the following declaration, That the real estate lying in Chester County, Pa., was appraised at $14,000.00, and sold by order of Court under the Act of 1893, for distribution among heirs, for $10,230.00 and the account of said Administrators as Trustees has been filed in the Chester County Court showing the balance of the proceeds of real estate to be $9,369.08, on which the collateral inheritance tax should be the sum of $468.45, which has been tendered the Commonwealth's officers and refused on the ground that it is less than the Collateral Tax Appraisement filed, a copy of which is hereto attached and made a part of this appeal, by reason of which this appeal is taken." Incidentally, it will be seen that even if appellants' main contention could be sustained they have miscalculated by computing the collateral tax on $9,369.08 instead of on $10,230.00. The appellants are not only heirs but also administrators of the estate, and presumably they were familiar with all matters relating to it. Whether the appraiser was appointed on their motion or they were a party to the appraisement we have no way of telling, but it is certain that they had positive notice of, 1911, the respondent, with the knowl the appraisement as early as May 18, 1914, for it was on that day that their administration account was called for audit and the appraisement offered in evidence; and no objection was made to it or the Commonwealth's demand for the penalty of twelve per cent. As the appeal was not taken until July 9, 1914, "within thirty days ",-it is dismissed at the cost of the appellants. Common Pleas--Law. Zeller v. Zeller. Divorce-Desertion. In a suit for divorce on the ground of desertion, it appeared that the respondent left home temporarily with the knowledge of her husband, leaving the key with a neighbor for him to get if he wanted it as she had done before, but the neighbor refused to give the libellant the key on his asking for it, and he never asked for it again nor came back to the house nor did the respondent notify him of her return or request him to come back. edge of the libellant, went as a "choir mother" to Wild Cat with the choir boys of the Episcopal Church of Mt. Joy. Several of their children were members of this choir, and the outing was to be of several days' duration. It was agreed before the respondent left that the libellant was to board with his mother until her return. She left the key with a neighbor for the libellant to get if he desired to enter the house during her absence. She had done this on other occasions. The libellant knew this to be her custom as he asked the neighbor for the key when he met her on the street, and she refused to give it to him then, as she says he was not in condition to go into the house. When the respondent returned home on August 5, 1911, the libellant did not come to see her nor make any effort to enter the house. The gas was left burning and the door unlocked during the whole of the night to enable him to get into the house as it was expected he would do. The only act complained of by the libellant is that the respondent locked the libellant out of his house when she Held, that the facts showed desertion on went away, which the master finds to be the part of the libellant and not by the re-constructive" desertion. spondent, and a decree of divorce should be refused. Even if the respondent had locked the libellant out which she did not do, it would not have been desertion. It was his duty to go back to her when she returned. Even though the respondent locked him out it would not be wilfull and malicious desertion either actual or constructive. The testimony shows, however, that she did not do so. She left the key where it was customary for her to leave it, so that the libellant could get into the house during her absence. He knew this, as he asked the custodian of the key for it. If she refused to give it to him it was not an act of the respondent but an act of the custodian of the key whose act could not create a cause for divorce against the respondent. It was the duty of the libellant to have gone back to the respondent when she returned on August 5, 1911. His failure to do so was a wilfull and malicious desertion on his part, which is the only desertion shown by the testimony. The exceptions to the master's report are sustained; the decree of divorce is refused, and the libel is dismissed at the costs of the libellant. The granting or refusing of an appeal nunc pro tunc from the judgment of a magistrate, is a matter of sound discretion. Where it appears, from deposition taken, that the defendant has a just defense to the whole of the plaintiff's claim, and that the plaintiff is indebted to the defendant to an amount exceeding plaintiff's claim, and that the defendant had no knowledge of the service of the summons at her dwelling house, the court will allow an appeal nunc pro tunc. In the Court of Common Pleas of Lehigh County. No. 6 April Term, 1914. Queen City Motor Company v. Florence Iredell Berger. Rule to show cause why an appeal should not be allowed nunc pro tunc. June 15, 1914. Opinion by GROMAN, P. J. Suit in the above proceeding was brought before Alderman Robert L. Schiffert of Allentown, Lehigh County, Pennsylvania, on December 4, 1913. William Gruele, Constable, made return on December 5, 1913, that summons was served on an adult member of the family on that date. December 10, 1913, the alderman heard the plaintiff; the defendant failed to appeal. On the same day judgment was entered in favor of the plaintiff and against the defendant in the sum of Ninety-five Dollars and Seventyfive Cents ($95.75). January 3, 1914, an execution was issued by the alderman, and on the same date the constable levied on the personal property of the defendant. Same day the defendant, through her attorney, presented a petition praying for a rule on the plaintiff to show cause why an appeal nunc pro tunc should not be allowed. Depositions were taken and it was shown that the defendant, as in her petition for a rule set forth, had a just defense to the whole of the plaintiff's claim, and that the plaintiff was indebted to the defendant to an amount exceeding the plaintiff's claim. It appears further from the depositions that the defendant is a resident of the City of Allentown; that from November 27, 1913, to the 22nd day of December she was in New York who was then ill with the measles and City taking care of her son, Karl Berger, under quarantine in said city. The defendant then had and still has a residence in the City of Allentown, in charge of servants during her absence. It seems the person in charge of the house failed to inform defendant during her absence, as well as upon her return, of the fact that a summons had been left at her place of residence, and that the defendant at no time had knowledge of this suit until the levy made on January 8th. The defendant certainly was diligent in asserting her rights, if any she had. In A. J. Kutz & Son, etc. v. S. M. Skinner, 7 l'a. Sup. Ct,, page 347, the Court held that the granting or refusing of an appeal nunc pro tunc from the judgment of the magistrate was a matter of sound discretion." Applying the above rule under the circumstances as brought out in this case, and the facts established, the Court is inclined to exercise this discretion and allow the appeal nunc pro tunc. Now, June 15, 1914, rule for allowing appeal nunc pro tunc from judgment entered by Robert L. Schiffert in the within proceeding referred to is made absolute. Plaintiff executed an agreement with one of his attorneys that the latter was to pay the fees of such expert witnesses as he might deem day assigned to both attorneys one-half of necessary to employ in the case, and the next whatever verdict might be recovered, as full payment of counsel fees. Held, on a petition to set aside such assignment, that the petition must be refused. The Courts will determine from the facts of each case whether or not the spirit and purpose of the law forbidding the pernicious promotion of litigation has really been violated." Contracts for the payment of contingent counsel fees are enforceable after the rendition of the services unless procured by fraud or other illegal means. The financial assistance agreed to be ren dered, in case it was thought necessary to procure expert witnesses, did not constitute champerty. No. 86, January Term, 1914. Petition to strike off and set aside as signment of one-half of the verdict of $4000 rendered in this case in behalf of plaintiff. cause of the contract of December 16, 1913, and was really a part of it. But the evidence fails to show that such was the case. On the contrary, it indicates that Mr. Niles only learned of Mr. Kurtz' prior agreement to pay certain prospecMcClean Stock and Jas. G. Blessner, case, during the progress of negotiations tive bills and expenses in the plaintiff's for petition. A verdict of $4000 having been recovered by the plaintiff in this case, his counsel, Messrs. Henry C. Niles and Samuel Kurtz, filed of record his assignment to them of one-half of the amount of said verdict, in payment of their counsel fees. The plaintiff now asks the Court to strike off and set aside said assignment, on the ground that the contract retaining Messrs. Niles and Kurtz as his counsel, and assigning to them the one-half of what might be recovered for their fee, was champertous and void. Said contract, bearing date the 16th day of December, 1913, provided that because of the plaintiff's financial inability to pay fees at that time, his counsel should receive one-half of the amount that might be recovered in this case, for their compensation. It was also stipulated therein, that the plaintiff should pay all the other costs and expenses of the litigation himself, and that the case should not be settled or compromised by counsel without his consent. for its settlement. Mr. Niles' rights under the contract of December 16, 1913, are, therefore, not affected by that of December 15, 1913, and this assignment is valid and effective to secure his half of the stipulated counsel fee. A reasonable and consistent construction of both contracts is that the plaintiff was to retain control of his own case, and was to pay all costs and expenses of the litigation, except counsel fees, which were made contingent under the contract of December 16, 1913, and the medical fees and expenses of such expert witnesses as Mr. Kurtz might deem it necessary to incur during the progress of the case. The latter Mr. Kurtz undertook to pay under the agreement of December 15, 1913, apparently for the reason that the plaintiff was financially unable to do so himself. Champerty is defined as "a bargain made by a stranger with one of the parties to a suit, by which such third person undertakes to carry on the litigation at his own cost and risk, in consideration of receiving, if he wins the suit, a part of the land or other subject sought to be recovered by the action;" Black's Law Dictionary, page 188. All contracts for contingent fees, or for a part of the money to be recovered in a suit in consideration of payment of costs by one who was not a party to the record were at one time held to be champertous and void in England. But the This contract was clearly not champertous under the Pennsylvania decisions. Although it provided for a contingent fee for counsel it was enforceable after the rendition of the services therein stipulated for, unless it had been pro-rigid rule of the Common Law has been cured by fraud, or other illegal means; Mumma's Appeal, 127 Pa., 474; Filon's Estate, 7 Dist. Rep., 316; Williams v. Phila., 207 Pa., 272; Shoenberger's Estate, 211 Pa., 99. It is contended, however, that it is affected by the champertous nature of a prior contract of December 15, 1913, between the plaintiff and Samuel Kurtz, Esq., which contract it is alleged in the plaintiff's petition, was the inducing much relaxed in more recent times. It is now the usual practice of the American Courts to determine from the facts of each case whether or not the spirit and purpose of the law forbidding the pernicious promotion of litigation has really been violated. Exceptions to the old rules forbidding others than record parties to assist litigants have been made in favor of parties standing in certain relations to each other, e. g. that of At torney and Client, in which cases mere incidental assistance in maintaining bona fide litigation, for the benefit of the plaintiff, is held not to be champerous. The financial assistance agreed to be rendered by Mr. Kurtz in this case was optional and conditional upon his deeming it necessary to procure expert witnesses. We have found no case holding a similar agreement to be champertous, and are of the opinion that it does not properly fall within that definition, or within the more recent rulings of the American Courts, relating to champertous contracts between Attorneys and Clients. The whole subject will be found carefully reviewed in Gilman v. Jones, 4 L. R. A. 113, and the numerous cases cited in the footnotes thereto. See also Grace v. Floyd, 61 S., 694, and In re Aldrich, 86 A., 101. The plaintiff's application to strike off and set aside the assignment in question is refused, at the cost of the plaintiff. A testator's will devised a life estate in certain land to his widow, and further provided as follows: "After her death then I bequeath the residue of all my estate both real and personal to my son F for his own use and benefit forever, but in case my said son should die before the death of my wife, then it is my will that my estate should go to his heirs, share and share alike." The widow survived F. Held, that the death of F before the widow vested the fee in his son T, his sole issue, as direct beneficiary under the will. The will created alternative contingent remainders: One in F, in whom the fee would have been vested had the widow died first; the other in the heir of F, who, upon his death before the widow, succeeded to the fee as purchaser. J. E. Sickler, for plaintiff. Warren, Knapp, O'Malley & Hill, for defendant. August 10, 1914. Opinion by NEWCOMB, J. The land in dispute is the one-half part undivided of two certain parcels of which Charles W. Frasier died seized in fee as an equal tenant in common with his son Frank. The father died testate in 1901. The son survived less than a year, but in the meantime he had joined with testator's widow-who had the life estate-in conveying the whole thing to defendant; and having been in turn survived by one son, his sole issue, the latter now sues as remainderman entitled to possession under the grandfather's will upon the death of the widow whereby the life estate was ended in 1911. Thus both parties claim under Charles W. Frasier, and the single question in dispute is: What was the nature of the interest devised to Frank? It is believed to be free from difficulty. It has to do only with the disposition of property by will concisely expressed in terms of ordinary usage, of familiar import, making complete sense, and on the face of which there is nothing contradictory, ambiguous or obscure. Having first provided for his widow, the testator said: "After her death then I bequeath the residue of all my estate, both real and personal, to my son Frank W. Frasier, for his own use and benefit forever, but in case my said son should die before the death of my wife, then it is my will that my estate should go to his heirs, share and share alike." If this gave to Frank an estate of inheritance unconditionally, then, as a matter of course, he could alien and pass the The rule in Shelly's case cannot appl in title either by deed or will. For the same favor of F, or those claiming under him. If he took a vested remainder he took it in reason he could have encumbered the property and it would have been subject to seizure for his debts, etc. But that would not be in accord with the father's purpose as made manifest by what he said. His meaning is unmistakable, viz.. that the estate should go intact to Frank's next of kin, in his place and stead, in Demurrer to defendant's answer in case he should not outlive the widow. It ejectment. is my estate," says testator, that in such fee by the express terms of the will; and thus his estate would neither stand in need of, nor could get any aid by operation of the rule. While the policy of the law favors that interpretation of a will which would result in a vested rather than contingent remainder, that applies only in a doubtful, and not in a clear case. |
