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LIGERENTS

UNDER

OUR

COMMERCE

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the Lancaster Storage Company, before

Tegal Miscellany. an alderman of this City, and obtained a judgment against him, from which he took this appeal. In her statement the plaintiff claims damages " from the Lan

Embargoes and Neutrality. caster Storage Company, a corporation THE CONTRACTS OF CITIZENS OF OUR NEUof the State of Pennsylvania (Joseph

TRAL GOVERNMENT WITH FOREIGN BELD. Black, Manager)," and set forth her cause of action against it. To this state

CLAUSE-EDITORIAL IN CENTRAL LAW ment the defendant entered his plea. The Lancaster Storage Company filed an

JOURNAL.

It is to be conceded that the right of plaintiff offered testimony tending to contract may be affected by the overprove her case against the Lancaster riding power of our commerce clause. Storage Company, but there was no But that clause is designed solely for testimony to justify a verdict against the benefit of trade flowing to or from Joseph D. Black. A verdict was ren- this country or among the states theredered against the defendant, who was of. Is it constitutional to exert it for Joseph D. Black, Manager of the Lan- the benefit of belligerent nations or caster Storage Company.

their inhabitants, our own nation being There is nothing in either the state- neutral? If the answer to this quesment or the testimony to justify a ver- tion is in the negative, what is called dict against Joseph D. Black, who was the Bartholdt Bill in Congress to prea party to the issue, and we should have vent shipments of goods to belligerent affirmed defendant's point asking for nations in Europe would seem to be binding instructions in his favor.

unconstitutional, a particular class of The cases cited by the defendant's goods being mentioned. counsel do not apply in this case, be- Such shipment may not in itself be cause he proceeds from a wrong assump- a contract, but it is such an integral tion. In all these cases the issue was

part of the contract as to inhere therebetween a corporation under a wrong in as part of its very life. Sioux Rem. name and another, and a misnomer of Co. v. Cope, 35 Sup. Ct. 57. Thus it the corporation was held to be of no may be urged that as the carrying out consequence. In this case the issue was of a contract in every way lawful at not between the plaintiff and the Lan- the time, is subject, if it contemplates caster Storage Company, as he contends.

a shipment in commerce, to what lawIt was formed by the statement and plea. fully may affect it. A contract by a The affidavit of defense has nothing to citizen of this neutral country with a do with it, its only purpose being to belligerent government or any citizen prevent judgment. It is true the state- thereof may be affected even to destroyment contains a claim against the Lan- ing all beneficial results therefrom ariscaster Storage Company, but the de-ing out of lawful regulation of comfendant, Joseph D. Black, and not the

merce between this country and forCompany entered the plea to the state- eign countries. This we take to be ment. Whatever issue there was, there the effect of the ruling as to an interfore, was between the plaintiff and state contract in Louisville & N. Ry. v. Joseph D. Black, and the verdict finding Mottley, 219 U. S. 467. against the defendant was against Joseph D. Black, and not against the Company, the commerce clause was for our own

But we started out by premising that and judgment should not be entered on it, because there was

use and advantage and not for that no testimony to

other nation. The inquiry, support it. We must, therefore, make then, would be resolved into the quesabsolute the rule for judgment n. 0. V., tion whether Congress may declare for and enter judgment for the defendant.

the good of our trade, that conditions in foreign countries make it detrimen

of

any

of war.

as

tal, not to them, but to us, that no pressed in the Constitution; and by goods, contraband or otherwise shall be the treaty-making power of the Presishipped form our ports to either or dent and Senate. Congress has a right any of such countries while in a state to control or abridge commerce for the

advantage of great national purposes. It might be claimed, as we believe it Non-intercourse and embargo laws are is claimed, that the shipment of goods within the range of legislative discreto belligerents is a moral issue and

moral issue and tion; and if Congress have the power, infraction of its precepts may create for purposes of safety, of preparation, in the shipping country such an opposi- or counteraction, to suspend commertion as to affect an interstate trade. cial intercourse with foreign nations, Our Supreme Court has gone some

they are not limited as to duration, length in the Mann Act cases in declar- more than as to the manner and exing their constitutionality as resting in tent of the measure." I Kent's Com. the police power of the nation at large 432. distinguished from state police

An embargo act, then, to be constitupower. But this was declared as to a tional, must have alone the benefit of law in regard to a violation that was this country in view. It may be laid as against universal morality, and not as

to a particular product, where foreign to what greatly may be differed about

nations are at war, because to preserve by reflecting minds. It would not em- ourselves it is wise precaution. We brace a sort of casuistry among moral-may admit, its discretion in the laying ists. It ought rather to come under of embargoes will be given large latitude. . Justice Holmes' definition of what is But, at the last, a court must be able the police power of a state as declared to see, that the laying of an embargo in the Bank Guaranty cases, we not has relation to the betterment or the saying that we indorse this definition, protection of our own commercial inIt, at least, expresses, however, a sort

terests. of limit in the ascertainment of what

We conclude, therefore, that whether is police power.

He said the police an embargo is constitutional or not is power represents "the preponderant largely a question of fact. The Act of opinion" in a state on a particular sub

1807 and its amendments were asject.

sumed, without discussion, in the SuWe know, too, from these cases, that preme Court, to

be

constitutional. it may be necessary to appeal to police They were general in their nature, but power to sustain constitutionality of a the theory is that embargo is not a statute coming under the

the commerce

permanent but a temporary suspension clause. But it is our police power that of intercourse between nations, all of is appealed to, not that of some other which implies that our own policy. nation.

and not that of other nations, must be The exercise of such a power by Con- subserved in its enforcement. One of gress would be in the laying of an em

the reasons stated by Judge Kent as bargo. This

under the com

authorizing the laying of an embargo merce clause, and as said by Justice is . counteraction," that is to say, reStory in the third volume of his com- taliation. But, when this begins, surely mentaries, the general embargo, indefi- neutrality would be at an end. nite as to time, laid by Act of Congress fect we would be a belligerent. of 1807, went to the utmost verge of

-Chicago League News. implied constitutional power. Chancellor Kent, in discussing an

In a Few Words. objection raised to the constitutionality Judge-Describe what passed between of this act declared that: “ The power you in the quarrel with your wife. of Congress was sovereign relative to Man on standThe plates were regucommercial intercourse, qualified by lar dinner size, your honor, and the teathe limitations and restrictions ex- fot had a broken spout.

comes

In ef

LANCASTER LAW REVIEW.

Superior Court.

6. The Court erred in not awarding to Reuben Dague, a creditor of Louisa

Laub, the sum of $500.00 with interest Vol. XXXII.] FRIDAY, MAY 21, 1915. [No. 29 thereon since November 30, 1906, the

same being a judgment entered to November Term. 1906, No. 156, in the Court of Common Pleas of Lancaster County.

On appeal the assignments of error

were i to 6, the action of the court beLaub's Estate (Dague's Appeal).

low in dismissing each of the above ex- . Il'ills-Life estate_Trusts. ceptions and 7, in saying in their opinion

The exceptions are dismissed and the A will providing that the share given to the testator's daughter should be held in trust, the adjudication is confirmed absolutely." trustees to pay over the interest and as much B. F. Davis, for appellant. of the principal as

was necessary for her support, and further disposing of the uncon- The gift to Louisa Laub was absolute sumed balance at her death, gives her a life and the trust over it ended upon her estate, and such balance should be awarded | death. It was not a life estate as held under the will and not given to the executor

by the court. The fund was personalty. of the cestui que trust.

Follweiler's Estate, 102 Pa. 581. Appeal No. 47 of May Term 1913, Vengel's Appeal, 61 Pa. 248. by Reuben Dague, executor of Louisa Amelia Smith's Ap., 23 Pa. 9. Laub, deceased, from decree of 0. C. of Boyes' Estate, 177 Pa. 190. Lancaster County dismissing exceptions Rewalt v. Ulrich, 23 Pa. 388. to adjudication in estate of Elizabeth

Mickey's App., 92 Pa. 514. Laub and confirmed same. Affirmed. Keller's Estate, 11 Law Review, 185.

The Court below. SMITH, P. J., Lawrence v. Lawrence, 105 Pa. 335. awarded the balance of the Louisa Laub Gold's Estate, 133 Pa. 495. trust, at her death to the parties desig- Hoff's Estate, 147 Pa. 636. nated in the will of Elizabeth Laub, and Reinoehl v. Shirk, 119 Pa. 108. subsequently dismissed the following Matlack 2. Roberts, 54 Pa. 150. exceptions filed by Louisa Laub's Vaughan v. Dickes, 20 Pa. 509. executor.

Eichelberger v. Barnitz, 9 Watts, 447. 1. The Court erred in awarding to Kirby's Est., 235 Pa. 542. Sue E. Whitaker, administratrix d. b. n. Long's Est., 39 Superior, 323. of the estate of Elizabeth Ann Laub, Hogg's Est., 27 Superior, 428. one-half, $470.70.

Galbraith v. Swisher, 19 Superior, 143. 2. The Court erred in awarding to Opinion 144: John S. Livers, administrator d. b. n. " It is very clearly stated, both in Engc. t. a. of the estate of George W. Laub, land and in this State, that if a bequest deceased, $470.70.

be made to a person absolute in the first 3. The Court erred in not awarding instance and it is provided that in the to Reuben Dague, executor of Louisa event of death, or death without issue, Laub, deceased, the balance for distri- another legatee or legatees shall be subbution, after the payment of costs, to stituted to the share or legacy thus given,

which shall be construed to mean, death 4. The Court erred in not awarding or death without issue before the testhe interest for the last year on the prin- tator." cipal of the fund for Reuben Dague who Boyes' App., 177 Pa. 190. boarded, lodged and supported Louisa Rea 7. Girard, 17 Phila. 357. Laub up to the time of her death and Under the will, Louisa Laub had the during said period.

right to consume the entire fund be5: The Court erred in not awarding queathed to her; therefore, we take it to Reuben Dague the funeral expenses that that was an absolute estate: for the burial of Louisa Laub.

Hambright's App., 2 Grant, 320.

wit, S941.40.

Welsh's Estate, 239 Pa. 616.

in case the income was not sufficient for The money did not belong to the trust her support, and at her death to pay the estate.

balance remaining in their hands to the Sill's Estate, 39 P. L. Journal.

issue, or children of Louisa Laub, if Tyson v. Kratz, 3 Mont. 139.

she should leave any, and if she should

die without issue or children, to pay the Frank S. Groff, for appellee.

the same to her brother and sister. The 16th item of the will above quoted creates an active trust of the share of

April 19, 1915. Opinion by Orlady, J. Louisa Laub during her lifetime, and the In dismissing the exceptions filed to 17th item disposes of the balance remain the adjudication, and confirming the dising at her death. These two items of the tribution the learned court below held in will cut down the absolute estate given substance, that while one item (16th), to Louisa Laub by the 9th and ioth in the will of Elizabeth Laub created an items thereof to a life estate merely. active trust of the share of Louisa Laub Eachus Appeal, 91 Pa. 105.

during her life time, that another (17th), Nice's Est., 227 Pa. 75.

disposed of the balance remaining at her Gerhart's Est., Joyer's Ap., 160 Pa. death. The construction placed on these 253.

items, cut down to a life estate the abEichelberger's Est., 135 Pa. 160. solute estate given to Louisa Laub by Livezey's Ap., 106 Pa. 201.

earlier items (9th and 10th) of the will. A distinction exists between the rules | The view taken by the court was eviapplicable to devises of land and bequests dently the same as that held by counsel of personalty. In the latter case very for the trustee of Louisa Laub when its slight circumstances are laid hold of as account was filed, and is in accord with sufficient to indicate an intention that a the clearly expressed intention of the limitation over, after a gift for life, on testator. death without issue, shall take effect at The decree of the Orphans' Court is a definite time, to wit, on the death of affirmed. the first taker.

Moorehead's Est., 180 Pa. 119.

The rule that a bequest of personalty with power to consume, sell and dispose,

Orphans' Court. carries an absolute estate, is not a rule of law but a rule of construction in aid of reaching the intention of the testator,

Estate of Adam J. Rieker. and will not be applied to defeat that intention.

CemeteriesLegacies for repair of Tyson's Est., 191 Pa. 218.

burial lots. Zimmerman's Est., 23 Sup. Ct. 130.

Under the will of Elizabeth Laub the A cemetery company which sets aside a cerright to consume the fund was not given tain part of the purchase money on the sale Louisa Laub but was given to the trus

of each lot for keeping "the cemetery and its

appurtenances in good order” cannot accept a tees. The 16th item of the will places legacy from a testator buried in its cemetery, the fund, principal and interest, in the in trust for keeping in good order and rehands of the trustees for the support of pair the cemetery lot", in “ the cemetery in Louisa Laub. It creates a spendthrift's which I may be buried."

When an event turns up which the testator trust. She had not ownership in a dis- had not contemplated, a court is compelled to posal of either principal or interest. inquire how he would have provided for it had Horwitz v. Norris, 49 Pa. 213.

it been foreseen. The manifest intention of Elizabeth Laub was to give to her executors, in Lancaster County, March Term 1913,

Exceptions to adjudication. 0. C. of trust, a share of her estate for the use No. 8. of her daughter, Louisa Laub, with power in them to consume the principal thereof J. W. Brown, for widow.

* Item 4.

for any

A. S. Hershey. and W. U. Hensel, | all the lots in the cemetery. The cost for Greenwood Cemetery, legatee. of such service is taken into consideraMay 13, 1915. Opinion by SMITH, lots, therefore, as to the amount set apart

tion and provided for with the sale of P.J.

for this purpose the testator died inteOn March 20, 1913, a decree of dis- state.” tribution was handed down in this estate That the Greenwood Cemetery Comwith an opinion of which the following pany which had filed exceptions might is a copy :

offer additional testimony it was agreed “Adam J. Rieker died testate in De- that the audit should begin de novo. On cember, 1911. Only the following parts April 30, 1914, the original decre with of his will are necessary for the pur- the same opinion was again handed down. poses of this distribution:

Exceptions to it in behalf of the Ceme* Item 2. I give and bequeath unto tery Company are to the refusal to it the Trustees or Directors of the ceme- of the $200.00. tery, in which I may be buried, their The Greenwood Cemetery Company is successors and assigns, the sum of Two a corporation of the “ First Class-Not Hundred Dollars ($200.00), in Trust to For Profit.” It is a profiting corporainvest the principal sum, and to use the tion, pays dividends to stockholders. interest thereon for the purpose of keep- Among its sources of revenue is the ing in good order and repair the cemetery granting of rights of sepulture. It delot in which I may be buried. .

nies to purchasers of these rights, under All the rest, residue and penalty of forfeiture, the privilege of remainder of my estate, real, personal transfer without its ** express assent in and mixed, I give, devise and bequeath writing," and it prohibits grantees “ any unto my Executors hereinafter named, profit, payments, or pecuniary emoluin Trust, that they shall invest the same ments or advantage whatever in good and lawful securities, and pay fitting use they might be willing to the net rents, issues and incomes thereof permit. semi-annually unto my beloved wife Ada In the deed to Jacob Siegler, William Rieker during her natural lifetime, or A. Siegler, John A. Siegler and Ada as long as she shall remain my widow. Rieker for " right of sepulture” in the Provided that if at any time said rents, lot in which the testator is buried, it is issues and profits shall not be sufficient covenanted as follows: for her comfortable maintenance and "And it is hereby further agreed that support, in that events, I authorize and a certain part or portion of the considerempower my hereinafter named Execu- ation money aforesaid, to wit: the sum tors to pay her out of the principal fund, of Thirty one 42/ 100 Dollars shall be such amount or amounts as they may forthwith set apart by the party of the deem necessary for her comfortable first part; so as to form with other sums maintenance and support, and her re- derived in like manner, from the disceipt shall be a full release and acquit-position of other lots or pieces of ground, tance for any of the principal so paid.' a separate fund, the interest or income

The trust for cemetery lot purposes whereof shall be applied under the difalls because an essential to a trust is rection of Greenwood Cemetery Comwanting. The words are sufficient and pany, aforesaid, to the preservation of the subject is definite, but there is no the Cemetery and its appurtenances in object. In equity a trust estate con- good order, and to the support of the tinues no longer than does the thing to buildings, general enclosures, roads, be secured by the trust, and if there is walks and grounds belonging to the nothing to be secured by it, it is not. The same.” testator is buried in the Greenwood Among the “Rules and Regulations Cemetery at Lancaster, a cemetery under published by the Company as of Janua corporate management which ary 2, 1912, and offered in evidence, unbraces the “ keeping in good order” of der the head of " Perpetuity Funds ", is:

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