the Lancaster Storage Company, before 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 Legal Miscellany. Embargoes and Neutrality. caster Storage Company, a corporation THE CONTRACTS OF CITIZENS OF OUR NEU of the State of Pennsylvania (Joseph D. Black, Manager)," and set forth her cause of action against it. To this statement the defendant entered his plea. The Lancaster Storage Company filed an affidavit of defense. At the trial the plaintiff offered testimony tending to prove her case against the Lancaster Storage Company, but there was testimony to justify a verdict against Joseph D. Black. A verdict was rendered against the defendant, who was Joseph D. Black, Manager of the Lancaster Storage Company. no There is nothing in either the statement or the testimony to justify a verdict against Joseph D. Black, who was a party to the issue, and we should have affirmed defendant's point asking for binding instructions in his favor. The cases cited by the defendant's counsel do not apply in this case, because he proceeds from a wrong assumption. In all these cases the issue was between a corporation under a wrong name and another, and a misnomer of the corporation was held to be of no consequence. In this case the issue was not between the plaintiff and the Lancaster Storage Company, as he contends. It was formed by the statement and plea. The affidavit of defense has nothing to do with it, its only purpose being to prevent judgment. It is true the statement contains a claim against the Lancaster Storage Company, but the defendant, Joseph D. Black, and not the Company entered the plea to the statement. Whatever issue there was, therefore, was between the plaintiff and Joseph D. Black, and the verdict finding against the defendant was against Joseph D. Black, and not against the Company, and judgment should not be entered on it, because there was no testimony to support it. We must, therefore, make absolute the rule for judgment n. o. V., and enter judgment for the defendant. TRAL GOVERNMENT WITH FOREIGN BELLIGERENTS UNDER OUR COMMERCE CLAUSE-EDITORIAL IN CENTRAL LAW JOURNAL. It is to be conceded that the right of contract may be affected by the overriding power of our commerce clause. But that clause is designed solely for the benefit of trade flowing to or from this country or among the states thereof. Is it constitutional to exert it for the benefit of belligerent nations or their inhabitants, our own nation being neutral? If the answer to this question is in the negative, what is called the Bartholdt Bill in Congress to prevent shipments of goods to belligerent nations in Europe would seem to be unconstitutional, a particular class of goods being mentioned. Such shipment may not in itself be a contract, but it is such an integral part of the contract as to inhere therein as part of its very life. Sioux Rem. Co. v. Cope, 35 Sup. Ct. 57. Thus it may be urged that as the carrying out of a contract in every way lawful at the time, is subject, if it contemplates a shipment in commerce, to what lawfully may affect it. A contract by a citizen of this neutral country with a belligerent government or any citizen thereof may be affected even to destroying all beneficial results therefrom arising out of lawful regulation of commerce between this country and foreign countries. This we take to be the effect of the ruling as to an interstate contract in Louisville & N. Ry. v. Mottley, 219 U. S. 467. the commerce clause was for our own But we started out by premising that of any other nation. use and advantage and not for that then, would be resolved into the quesThe inquiry, tion whether Congress may declare for the good of our trade, that conditions in foreign countries make it detrimen tal, not to them, but to us, that no goods, contraband or otherwise shall be shipped form our ports to either or any of such countries while in a state of war. It might be claimed, as we believe it is claimed, that the shipment of goods to belligerents is a moral issue and infraction of its precepts may create in the shipping country such an opposition as to affect an interstate trade. as pressed in the Constitution; and by the treaty-making power of the Presi dent and Senate. Congress has a right to control or abridge commerce for the advantage of great national purposes. Non-intercourse and embargo laws are within the range of legislative discretion; and if Congress have the power, for purposes of safety, of preparation, or counteraction, to suspend commercial intercourse with foreign nations, they are not limited as to duration, more than as to the manner and extent of the measure." I Kent's Com. 432. Our Supreme Court has gone some length in the Mann Act cases in declaring their constitutionality as resting in the police power of the nation at large 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 Justice Holmes' definition of what is the police power of a state as declared in the Bank Guaranty cases, we not saying that we indorse this definition. It, at least, expresses, however, a sort of limit in the ascertainment of what is police power. He said the police power represents "the preponderant opinion" in a state on a particular subject. We know, too, from these cases, that it may be necessary to appeal to police power to sustain constitutionality of a statute coming under the commerce But it is our police power that is appealed to, not that of some other clause. of embargoes will be given large latitude. But, at the last, a court must be able to see, that the laying of an embargo has relation to the betterment or the protection of our own commercial in terests. We conclude, therefore, that whether an embargo is constitutional or not is largely a question of fact. The Act of 1807 and its amendments were assumed, without discussion, in the Supreme Court, to be constitutional. They were general in their nature, but the theory is that embargo is not a permanent but a temporary suspension of intercourse between nations, all of which implies that our own policy. 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 emthe reasons stated by Judge Kent as bargo. This comes 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. In ef nite as to time, laid by Act of Congress fect we would be a belligerent. of 1807, went to the utmost verge of implied constitutional power. nation. Chancellor Kent, in discussing an objection raised to the constitutionality of this act declared that: "The power of Congress was sovereign relative to commercial intercourse, qualified by the limitations and restrictions ex -Chicago League News. In a Few Words. Judge-Describe what passed between you in the quarrel with your wife. Man on stand-The plates were regular dinner size, your honor, and the teafot had a broken spout. 6. The Court erred in not awarding LANCASTER LAW REVIEW. 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 Superior Court. Laub's Estate (Dague's Appeal). Wills Life estate-Trusts. A will providing that the share given to 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 1 to 6, the action of the court below in dismissing each of the above exceptions and 7, in saying in their opinion The exceptions are dismissed and the .. testator's daughter should be held in trust, the adjudication is confirmed absolutely." trustees to pay over the interest and as much of the principal as was necessary for her support, and further disposing of the unconsumed balance at her death, gives her a life estate, and such balance should be awarded under the will and not given to the executor of the cestui que trust. Appeal No. 47 of May Term 1913, by Reuben Dague, executor of Louisa Laub, deceased, from decree of O. C. of Lancaster County dismissing exceptions to adjudication in estate of Elizabeth Laub and confirmed same. Affirmed. The Court below, SMITH, P. J., awarded the balance of the Louisa Laub trust, at her death to the parties designated in the will of Elizabeth Laub, and subsequently dismissed the following exceptions filed by Louisa Laub's executor. I. The Court erred in awarding to Sue E. Whitaker, administratrix d. b. n. of the estate of Elizabeth Ann Laub, one-half, $470.70. 2. The Court erred in awarding to John S. Livers. administrator d. b. n. c. t. a. of the estate of George W. Laub, deceased, $470.70. 3. The Court erred in not awarding to Reuben Dague, executor of Louisa Laub, deceased, the balance for distribution, after the payment of costs, to wit, S941.40. 4. The Court erred in not awarding the interest for the last year on the principal of the fund for Reuben Dague who boarded, lodged and supported Louisa Laub up to the time of her death and during said period. 5. The Court erred in not awarding to Reuben Dague the funeral expenses for the burial of Louisa Laub. B. F. Davis, for appellant. The gift to Louisa Laub was absolute and the trust over it ended upon her death. It was not a life estate as held by the court. The fund was personalty. Follweiler's Estate, 102 Pa. 581. Mengel's Appeal, 61 Pa. 248. Amelia Smith's Ap., 23 Pa. 9. Boyes' Estate, 177 Pa. 190. Rewalt v. Ulrich, 23 Pa. 388. Mickey's App., 92 Pa. 514. Keller's Estate, II Law Review, 185. Lawrence v. Lawrence, 105 Pa. 335. Gold's Estate, 133 Pa. 495. Hoff's Estate, 147 Pa. 636. Reinoehl v. Shirk, 119 Pa. 108. Matlack v. Roberts, 54 Pa. 150. Vaughan v. Dickes, 20 Pa. 509. Eichelberger v. Barnitz, 9 Watts, 447. Kirby's Est., 235 Pa. 542. Long's Est., 39 Superior, 323. Hogg's Est., 27 Superior, 428. Galbraith v. Swisher, 19 Superior, 143. Opinion 144: "It is very clearly stated, both in England and in this State, that if a bequest be made to a person absolute in the first instance and it is provided that in the event of death, or death without issue, another legatee or legatees shall be substituted to the share or legacy thus given, which shall be construed to mean, death or death without issue before the testator." Boyes' App., 177 Pa. 190. Under the will, Louisa Laub had the right to consume the entire fund bequeathed to her; therefore, we take it that that was an absolute estate: Hambright's App., 2 Grant, 320. 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. Sill's Estate, 39 P. L. Journal. The 16th item of the will above quoted balance remaining in their hands to the issue, or children of Louisa Laub, if she should leave any, and if she should die without issue or children, to pay the the same to her brother and sister. April 19, 1915. Opinion by ORLADY, J. In dismissing the exceptions filed to the adjudication, and confirming the distribution the learned court below held in substance, that while one item (16th), in the will of Elizabeth Laub created an active trust of the share of Louisa Laub during her life time, that another (17th), disposed of the balance remaining at her Gerhart's Est., Moyer's Ap., 160 Pa. death. The construction placed on these 253. Eichelberger's Est., 135 Pa. 160. A distinction exists between the rules applicable to devises of land and bequests of personalty. In the latter case very slight circumstances are laid hold of as sufficient to indicate an intention that a limitation over, after a gift for life, on death without issue, shall take effect at a definite time, to wit, on the death of the first taker. Moorehead's Est., 180 Pa. 119. The rule that a bequest of personalty with power to consume, sell and dispose, carries an absolute estate, is not a rule of law but a rule of construction in aid of reaching the intention of the testator, and will not be applied to defeat that intention. Tyson's Est., 191 Pa. 218. items, cut down to a life estate the absolute estate given to Louisa Laub by earlier items (9th and 10th) of the will. The view taken by the court was evidently the same as that held by counsel for the trustee of Louisa Laub when its account was filed, and is in accord with the clearly expressed intention of the testator. The decree of the Orphans' Court is affirmed. Orphans' Court. Estate of Adam J. Rieker. Cemeteries-Legacies for repair of burial lots. A cemetery company which sets aside a certain part of the purchase money on the sale of each lot for keeping "the cemetery and its appurtenances in good order" cannot accept a legacy from a testator buried in its cemetery, in trust for "keeping in good order and repair the cemetery lot", in "the cemetery in which I may be buried." Zimmerman's Est., 23 Sup. Ct. 130. Under the will of Elizabeth Laub the right to consume the fund was not given Louisa Laub but was given to the trustees. The 16th item of the will places the fund, principal and interest, in the hands of the trustees for the support of Louisa Laub. It creates a spendthrift's 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. Horwitz v. Norris, 49 Pa. 213. The manifest intention of Elizabeth Laub was to give to her executors, in trust, a share of her estate for the use of her daughter, Louisa Laub, with power in them to consume the principal thereof ¦ inquire how he would have provided for it had Lancaster County, March Term 1913. No. 8. J. W. Brown, for widow. A. S. Hershey and W. U. Hensel, for Greenwood Cemetery, legatee. May 13, 1915. Opinion by SMITH, P. J. On March 20, 1913, a decree of distribution was handed down in this estate with an opinion of which the following is a copy: "Adam J. Rieker died testate in December, 1911. Only the following parts of his will are necessary for the purposes of this distribution: Item 2. I give and bequeath unto the Trustees or Directors of the cemetery, in which I may be buried, their successors and assigns, the sum of Two Hundred Dollars ($200.00), in Trust to invest the principal sum, and to use the interest thereon for the purpose of keeping in good order and repair the cemetery lot in which I may be buried. . · Item 4. All the rest, residue and remainder of my estate, real, personal and mixed, I give, devise and bequeath unto my Executors hereinafter named, in Trust, that they shall invest the same in good and lawful securities, and pay the net rents, issues and incomes thereof semi-annually unto my beloved wife Ada Rieker during her natural lifetime, or as long as she shall remain my widow. Provided that if at any time said rents, issues and profits shall not be sufficient for her comfortable maintenance and support, in that events, I authorize and empower my hereinafter named Executors to pay her out of the principal fund, such amount or amounts as they may deem necessary for her comfortable maintenance and support, and her receipt shall be a full release and acquittance for any of the principal so paid.' The trust for cemetery lot purposes falls because an essential to a trust is wanting. The words are sufficient and the subject is definite, but there is no object. In equity a trust estate continues no longer than does the thing to be secured by the trust, and if there is nothing to be secured by it, it is not. The testator is buried in the Greenwood Cemetery at Lancaster, a cemetery under a corporate management which embraces the "keeping in good order" of all the lots in the cemetery. The cost of such service is taken into consideration and provided for with the sale of lots, therefore, as to the amount set apart for this purpose the testator died intestate." That the Greenwood Cemetery Company which had filed exceptions might offer additional testimony it was agreed that the audit should begin de novo. On April 30, 1914, the original decre with the same opinion was again handed down. Exceptions to it in behalf of the Cemetery Company are to the refusal to it of the $200.00. The Greenwood Cemetery Company is a corporation of the "First Class-Not For Profit." It is a profiting corporation, pays dividends to stockholders. Among its sources of revenue is the granting of rights of sepulture. It denies to purchasers of these rights, under penalty of forfeiture, the privilege of transfer without its express assent in writing," and it prohibits grantees "any profit, payments, or pecuniary emoluments or advantage whatever for any fitting use they might be willing to permit. In the deed to Jacob Siegler, William A. Siegler, John A. Siegler and Ada Rieker for "right of sepulture" in the lot in which the testator is buried, it is covenanted as follows: "And it is hereby further agreed that a certain part or portion of the consideration money aforesaid, to wit: the sum of Thirty one 42/100 Dollars shall be forthwith set apart by the party of the first part; so as to form with other sums derived in like manner, from the disposition of other lots or pieces of ground, a separate fund, the interest or income whereof shall be applied under the direction of Greenwood Cemetery Company, aforesaid, to the preservation of the Cemetery and its appurtenances in good order, and to the support of the buildings, general enclosures, roads, walks and grounds belonging to the same.' Among the "Rules and Regulations" published by the Company as of January 2, 1912, and offered in evidence, under the head of " Perpetuity Funds ", is: |