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entitled to as much consideration as the labor which operates the equipment. The labor which operates the equipment is entitled to as much consideration as the investor who furnishes the capital. And the investor who furnishes the capi

By the transfer of power from the, public service corporation to the government, what shift has there been, if any, in the responsibility which always attaches to the possession of power? What are the elements in the conduct of business with private capital under govern-tal is entitled to as much consideration ment regulation and control?

To furnish public service requires equipment, it requires labor and it also requires income. Capital furnishes equipment, labor operates equipment, and income supports both capital and labor. But income does more. Income maintains equipment. Income provides for depreciation. Income provides for obsolescence. Income attracts and supports new capital. That is, income should do all these things, and does do them when they are done.

In these apparently complicated, though really simple relations, what is required? It is conceded by all that equipment should be good and safe, should be skilfully and safely operated by well paid labor, should be thoroughly maintained; and that when it becomes obsolete it should be replaced with such improved equipment as the period affords. All this has been thoroughly discussed and generally adopted, that is, the requirements of good service and of adequate wages; but there is one element in the transaction which has only begun to receive consideration, and that is the element of income.

as each of the other two. The service, the labor, and the capital must all be supported by the income.

Power carries responsibility. Who now has the responsibility for income? Power always has carried responsibility. It was thus in the original relation of the family. Children were subservient to their parents, but the parents owed the duty of protection to their children. It was thus in the feudal relation. The liege lord had the power over his retainer, but the liege lord had the responsibility to protect his retainer. When government, in whatever form, undertook to direct the affairs of a nation or any part thereof. it assumed a power and it also assumed a responsibility.

Is not that our case? When government, having the power, undertook to regulate and control us, it is inescapable that government undertook the duty of providing for income enough to support us. To use President Wilson's metaphor: When government entered the game, government had to play the game according to the rules. Granted that the service must be good, granted

The old method has passed away that labor must be well paid, it must also whether for better or for worse, we be granted that capital must get its hire, need not consider. It is gone. Those and all this must be done by income. who furnish the capital, those who The conclusion is inevitable; and it is take the risk, those who operate the also inevitable that those who have the property no longer determine the in- power must provide for the income. come. This function government has Whether the power still lies in the Legisassumed. By assuming this function, lature for exercise, or has been assigned has not government assumed at least by the Legislature to another instrumenas much responsibility as belonged to tality, the responsibility attaches to the those who formerly provided for in-power, wherever that is held. The pubcome? If service and labor are madelic must be accommodated, labor must be to cost more, a larger income must be provided to support them; and for this larger income must not government provide?

The different interests concerned are each entitled to consideration. The public which receives the service is

well paid, capital must receive its suitable return; and the function of providing for income, having been taken away from those who formerly had it, must be exercised by those who now have it; and if costs are higher a larger income must be provided for.

clearly expressed, and no one disputes

LANCASTER LAW REVIEW. that he gave the power to the benefi

ciaries, first his wife afterwards Susie

VOL. XXXII.] FRIDAY, JUNE 11, 1915. [No. 32 Ziegler, "to use all or so much of his

Orphans' Court.

estate, real and personal, as she may require for her comfortable support and maintenance." But the respondent contends that the intention there declared can not be conceded because of the words of the codicil, which are: "If Susie Ziegler decides to remain in the house she is at liberty to do so, if not the house is to be sold and the money invested, the interest to be paid to Susie Ziegler." If by a will an intention is clearly exWhere a testator clearly expressed an in-pressed, and emphatically as in this case,

Estate of Robert L. Eicholtz, Deceased.

Trust

Power to consume principal· Wills-Construction of.

tention in his will to give his widow power to consume the principal if necessary of a trust fund for her benefit, but in a codicil provided that she should have also the interest of the proceeds of the house if she chose to sell it, without mentioning the principal, and the house is sold for payment of debts, she may use the principal of the proceeds of such sale if necessary.

A clearly-expressed intention in a will requires a no less clear and emphatic expres

sion in a codicil to overcome it.

When an event turns up which the testator had not contemplated, a court is compelled, in interpreting a will, to inquire how he would have provided for it had it been foreseen-in short to suppose an intention for him where he had none.

Rule to pay over part of principal of trust fund. O. C. of Lancaster County, February Term 1913, No. 3.

B. J. Myers, for rule.

B. Frank Kready and W. U. Hensel,

contra.

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The testator's intention as found in his will and codicil answers the question raised. The fund is in trust, and is of the proceeds of the sale of the real estate. After the death of the testator's wife, who died before him, to Susie Ziegler was given the income of his entire estate for life with power to consume principal if her needs might require it. It is agreed that she needs thirty dollars a month, which is more than the income of the fund.

no less clear and emphatic expression in a codicil can overcome it. Susie Ziegler is given the interest of the fund and no more unless more is needed for her comfortable support, but the testator emphasizes the intention that she shall have more if more is needed, and it is admitted that more is needed. By the codicil the interest of the proceeds of the sale of the house is given, but there is no intimation in it of an intention to qualify the originally expressed intention as to the use of the principal. Rather does it accentuate his solicitude for her welfare in that he suggests that she shall consult her convenience as to the house, possibily thinking thereby to dissipate a sentiment which otherwise she might unduly cherish. As opposed to this the most that can be said is that the testator ficiary shall have the privilege of using of did not repeat a third time that the benethe principal. Nothing less than a direct revocation would annul the previously clearly expressed intention, and there is

none.

But assuming our argument is faulty, what is the situation? It will not be denied that Susie Ziegler by the codicil was allowed to exercise her discretion as to the use of the house. Admitting that according to the strict letter of the codicil, and wholly ignoring the testator's intentions as found in the will, she was limited to the interest of the proceeds of the sale of the house in the event of her not deciding to remain in it, and she did not so decide, how is she The testator's intention in the will is affected? Conditions arose which barred

a decision by her: it was necessary to sell the house for the payment of the testator's debts. Assuming that the testator had some qualifying thought as to his previously expressed intention when he added the codicil, necessarily it related to the decision Susie Ziegler might make as to the house. Exigencies subsequently arising which had not been contemplated by him and which deprived her of a privilege which was an object of the codicil a purpose for it perished and nothing is there to show that it may not have been the only purpose. By reason of these happenings influenced by which his intention could not have been qualified what his intention would have been influenced by them may be inquired into, and a conclusion consistent with a known intention which is not an inconsistent intention in the light of the unforeseen happenings would seem to be his intention, and hardly would it be to lessen her power over the bequest because it was less than he had expected to give her. In Styer v. Freas, 15 Pa. 339, the famous jurist, Gibson, when Chief Justice, said, that "When an event turns up which the testator had not contemplated, a court is compelled to inquire how he would have provided for it had it been foreseen-in short, to suppose an intention for him where he had none." Manifestly an event here turned up which the testator did not contemplate, that which forced the sale of the house. It can be inferred that if the estate had been as the testator contemplated Susie Ziegler would have had an opportunity to decide as to the occupancy of the house, and in which event there might have been no reason for raising the question under consideration. But there is no occasion here to suppose an intention" for the testator, because his intention is clearly expressed, and with which both the will and codicil are in harmony.

The rule is made absolute, and the trustee is ordered to pay Susie Ziegler thirty dollars a month from July 9, 1914. Costs to be paid by respondent.

Estate of William Pennell, Deceased.

Promissory note-Evidence.

An executor of the deceased maker of a

promissary note who was also administrator of the payee, the maker's wife, and a legatee

of both, and to whom the decedent handed the note shortly before his death and acknowledged his indebtedness on it, is competent to testify for such note, it being against his interest, and such note should be allowed on adjudication.

Exceptions to adjudication. O. C. of Lancaster Co. March Term, 1909, No. 9. B. F. Davis, for exception. John E. Malone, contra.

June 3, 1915. Opinion by SMITH, P. J.

Two exceptions have been filed to the decree of distribution in this estate. The first is, "The Court erred in its distribution in awarding: To William Phillips, Administrator d. b. n. c. t. a. of the Estate of Esther A. Pennell, deceased, on account of claim, $366.06'”, which is a part of a claim of $1500.00 with interest.

Esther A. Pennell was the wife of the

decedent and died before him, in 1891. She left a will of which she made him the executor and by which she disposed of the substantial part of her estate, as follows: "It is my will, that my beloved husband, William Pennell, shall have for his use, during the term of his natural life, without interest, the Fifteen hundred dollars, ($1,500) which he now has, and after his death, I Will, that Eight hundred dollars ($800.) of the above sum to be paid to my Nephew, William Phillips, and the remaining Seven hundred dollars ($700) I give and bequeath,

As executor of her will William Pennell filed an inventory of which the largest part is of a note for $1500.00, dated April 1, 1884.

A claim against his estate of $1500.00 is evidenced by a note under seal for that amount given by William Pennell to Esther A. Pennell April 1, 1884, payable twelve months after date with interest at the rate of four per cent. per annum. Endorsed on it are the payee's

receipts for interest to April, 1889. A short time before his death the testator handed the note to William Phillips, whom he had named as the executor of his will, and acknowledged his indebtedness on it. Letters testamentary on his will were granted to William Phillips, and about the same time letters of administration d. b. n. c. t. a. on the estate of Esther A. Pennell were issued to him. Thus William Phillips became the legal representative of both estates. Furthermore, with the exception of a "bay horse colt" which the testator bequeathed to William P. Phillips, a son, of his executor, to him was given the entire estate. William Phillips is also a legatee under the will of Esther A. Pennell of $800.00 of the $1500.00. It was his duty as administrator d. b. n. c. t. a. of the estate of Esther A. Pennell to collect the amount owing on the note and as the representative of her estate was a competent witness in its behalf. As the representative of the testator's estate he was barred as a witness, and it was as much his duty to engage every legitimate means to prevent its depletion as it was to enhance Esther A. Pennell's estate. He was permitted to testify because notwithstanding his many attitudes he was placed in a position in which he was forced to antagonize his own interests by supporting the claim, because, with the exception of the bay horse colt, the whole estate has become his. It is admitted that this estate includes a farm, which exceptant values at $4000.00; and because therefor the Court refused to surcharge the accountant he filed a second exception. Assuredly if this claim of $1500.00 is paid the estate will be lessened and his interest correspondingly reduced. But it is urged that if this money passes to the estate of Esther A. Pennell there also William Phillips appears as a legatee. True this is, but only $800.00 of the $1500.00 is given to him by Esther A. Pennell, and, therefore, his testimony would appear to materially diminish his prospects. Under the 6th Section of the Act of May 23, 1887, P. L. 158, he was a competent witness; in addition, it will be seen from the testimony, that counsel for exceptant made

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Collateral inheritance tax should not be cedent's estate. allowed on the distribution of a presumed de

Adjudication. O. C. of Lancaster Co., August Term 1914, No. 48.

M. E. Musser, for Commonwealth.
John A. Nauman, for estate.

April 19, 1915. By SMITH, P. J.

By virtue of the Act of June 24, 1885, P. L. 155, letters of administration were granted to Frank A. Patterson on the estate of James Burnite, who, as had been duly found, was supposed to be dead.

A purpose of the Act is to conserve the estate so that if the presumed decedent should reappear he can readily come into possession of his own, but in the mean time those who would inherit from him if dead are permitted to enjoy it provided they give a proper bond conditioned that if he shall be alive they will refund the amounts with interest respectively received by each.

The claim of the Commonwealth for collateral inheritance tax can not now be entertained for the reason it has not been shown that any one whose estate might be subject to the tax is dead.

The proceeding is to conserve the estate of one who may be alive. At the death of James Burnite if he leaves neither widow nor lineal descendant his estate will be subject to the tax.

By the administrator's account the balance of personalty amounts to $275.57 and of realty to $1007.72. The next of kin and heirs of James Burnite appear to be Emery Burnite, a brother, Harriet. Sailer and Mary E. Burnite, sisters, and Archie R. Burnite and Bessie Burnite.

Kenton, a nephew and a niece, children. of a deceased brother.

DISTRIBUTION.

To Emery Burnite One-fourth
To Harriet Sailer One-fourth
To Mary E. Burnite One-fourth
To Archie R. Burnite One-half
of one-fourth
To Bessie Burnite Kenton One-
half of one-fourth

$1283-29

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The testator by his will gave his real $320.83 death he directed it to be sold by his estate to his wife for life. After her 320.82 executor and the proceeds divided: one320.82 half to his daughter Marion Dukeman, "and in case of her death to her chil160.41 dren," the other half to his sisters living at the time of his death. This is fol160.41 lowed by, "Should none of my sisters be living at the time of my death, then, in that event, I give and bequeath all of It is ordered and decreed that Frank the said proceeds . . . to my daughter A. Patterson, administrator as aforesaid, Marion Duchman, and in case of her do pay the amounts, as herein directed, death to her children share and share to those respectively entitled to the same alike.” Four sisters were living at the upon each of them giving said adminis- time of the death of the testator and all trator a refunding bond to be approved of them died before his widow. Ordinof by this Court, conditioned that if the arily there would be no question as to the said supposed decedent shall be alive they sisters' interest because similar testamenwill respectively refund the amounts re-tary expressions have generally been ceived by each on demand with interest thereon, and in the event of any of them being unable to give the security aforesaid then their share shall be placed in trust for them and the interest thereon paid to them annually.

This report is confirmed nisi.

Estate of John L. Killinger, Deceased. Wills-Construction of-RemaindersVesting of

Legacies in remainder will not be awarded to the personal representatives of legatees in remainder who died before the termination of the particular estate where the will shows an intention to exclude their children.

A testator gave his estate to his widow for life and after her death one-half to his daughter, and in case of her death, to her children" and one-half to his sisters living at the time of his death and if they did not survive him to his daughter and her children.

The sisters survived him but died before the

widow leaving children.

Held, That the sisters' shares were divested by their deaths before coming into possession and the entire estate should be awarded to the daughter.

found to declare an intention to absolutely vest at the death of the testator, and such would here be the accepted intention except that the testator intimated. and with a distinction that can not be mistaken, that he had no intention of having a part of his estate parceled as would be inevitable if there be an unqualified vesting in his sisters at his death. Nothing could interfere with its normal descent as if from them had he not disclosed an intention which is inconsistent with the idea that any other than his daughter or her children shall enjoy any part of his estate if his sisters can not be directly benefited by it. That he was concerned for them is obvious. It is apparent also that he was not concerned for any one else saving his daughter and her children. Never did he omit to mention his daughter's children in connection with a bequest to her, and at no time did he refer to his sister's children bequeathing to them. Such an omisor any other person or relationship when sion would not be fatal to a bequest, but if by reason of it there appears an intention to confine it to his sisters, with the death of them it falls by reason of the

Adjudication. O. C. Lancaster Co., intention. Because the testator each August Term 1914, No. 87.

Coyle & Keller, for accountant.

time referred to his daughter's children in connection with bequests to her it follows that they were in his mind. It fol

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