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LANCASTER LAW REVIEW. - Jeshill be thé duty of the register of

P.J.

wills of the county, in which letters testaVOL. XXXII.] FRIDAY, NOV. 6, 1914. [No.1 mentary or of administration are granted,

to appoint an appraiser, as often as and

whenever occasion may require, to fix Orphans' Court.

the valuation of estates, which are or shall be subject to collateral inheritance tax; and it shall be the duty of such ap

praiser to make a fair and conscionable Estate of Geo. D. Coates, deceased. appraisement of such estates; . . . ProCollateral inheritance tax-Appraisement

vided, That any person or persons, not

satisfied with said appraisement, shall -Appeal.

have the right to appeal, within thirty An appeal from an appraisement of real days." estate for collateral inheritance tax will be On the 18th day of February, 1913, dismissed where taken more than thirty days A. H. Diffenbaugh was appointed apafter the filing of the appraisement.

praiser to value the real estate, and on Appeal from collateral appraisement. the same day filed his appraisement estiO. C. Lancaster Co. May Term 1914, mating its value at $14,000.00. It does No. 10.

not appear on whose motion the ap

praiser was appointed, nor where or how Chas. E. Workman and H. R. Fulton, the appraisement was made, or who was for appeal.

present. No exceptions were filed to it,

but on July 9, 1914, Granville Coates M. E. Musser, contra.

and Howard Coates as heirs took the apOctober 8, 1914. Opinion by Smith, peal now before us. As if of the formal

appeal is the following declaration,

That the real estate lying in Chester George D. Coates died seised of real County, Pa., was appraised at $14,000.00, estate subject to collateral inheritance and sold by order of Court under the tax, Section 8 of the Act of May 6, Act of 1893, for distribution among 1887, P. L. 79, provides that, "When- heirs, for $10,230.00 and the account of ever any real estate of which any de- said Administrators as Trustees has been cedent may die seised shall be subject filed in the Chester County Court showto collateral inheritance tax, it shall be ing the balance of the proceeds of real the duty of executors and administrators estate to be $9,369.08, on which the colto give information thereof to the re- lateral inheritance tax should be the sum gister of the county where administra- of $468.45, which has been tendered the tion has been granted, within six months Commonwealth's officers and refused on after they undertake the execution of the ground that it is less than the Coltheir respective duties, or if the fact be lateral Tax Appraisement filed, a copy of not known to them within that period, which is hereto attached and made a within one month after the same shall part of this appeal, by reason of which have come to their knowledge; and it this appeal is taken." Incidentally, it shall be the duty of the owners of such will be seen that even if appellants' main estates, immediately upon the vesting of contention could be sustained they have the estate, to give information thereof miscalculated by computing the collateral to the register having jurisdiction of tax on $9,369.08 instead of on $10,230.00. the granting of administration."

The appellants are not only heirs but The inference is that the administra- also administrators of the estate, and tors of the estate " within six months presumably they were familiar with all gave to the Register the information re- matters relating to it. Whether the apquired by the Act, and that the owners praiser was appointed on their motion

immediately upon the vesting " did the or they were a party to the appraisesame.

ment we have no way of telling, but it is certain that they had positive notice of , 1911, the respondent, with the knowlthe appraisement as early as May 18, edge of the libellant, went as a “choir 1914, for it was on that day that their mother” to Wild Cat with the choir boys administration account was called for of the Episcopal Church of Mt. Joy. audit and the appraisement offered in Several of their children were members evidence; and no objection was made to of this choir, and the outing was to be of it or the Commonwealth's demand for several days' duration. It was agreed the penalty of twelve per cent. As the before the respondent left that the libelappeal was not taken until July 9, 1914, lant was to board with his mother until

--" within thirty days”,—it is dismissed her return. She left the key with a at the cost of the appellants.

neighbor for the libellant to get if he desired to enter the house during her absence. She had done this on other oc

casions. The libellant knew this to be Common Pleas-- Law. 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 Zeller v. Zeller.

go into the house. When the respondent Divorce-Desertion.

returned home on August 5, 1911, the

libellant did not come to see her nor In a suit for divorce on the ground of deser- make any effort to enter the house. The tion, it appeared that the respondent left home gas was left burning and the door untemporarily with the knowledge of her hus, locked during the whole of the night to band, leaving the key with a neighbor for him to get if he wanted it as she had done enable him to get into the house as it before, but the neighbor refused to give the was expected he would do. libellant the key on his asking for it, and he

The only act complained of by the never asked for it again nor came back to the house nor did the respondent notify him of libellant is that the respondent locked her return or request him to come back. 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 though the respondent locked Even if the respondent had locked the him out it would not be wilfull and malilibellant out which she did not do, it would not have been desertion. It was his duty to cious desertion either actual or construcgo back to her when she returned.

tive. The testimony shows, however,

that she did not do so. She left the key Rule to show cause why a divorce a where it was customary for her to leave vinculo matrimonii should not be it, so that the libellant could get into the granted. C. P. of Lancaster County. house during her absence. He knew October Term 1911, No. 11.

this, as he asked the custodian of the key

for it. If she refused to give it to him John W. Denlinger, for libellant. it was not an act of the respondent but John A. Hipple, for respondent.

an act of the custodian of the key whose

act could not create a cause for divorce September 26, 1914.

Opinion by against the respondent. LANDIS, P. J.

It was the duty of the libellant to

have gone back to the respondent when We do not agree with the master who she returned on August 5, 1911. His in his report recommends that the libel- failure to do so was a wilfull and malilant be granted a divorce on the ground cious desertion on his part, which is the of desertion, as the testimony fails to only desertion shown by the testimony. show a desertion of the libellant by the | The exceptions to the master's report respondent.

are sustained; the decree of divorce is The testimony of both the libellant refused, and the libel is dismissed at the and respondent show that on August 3, costs of the libellant.

P.J.

Queen City Motor Co. v. Berger. day of December she was in New York Justice of the peace-Appeal nunc pro who was then ill with the measles and

City taking care of her son, Karl Berger, tunc Discretion of court

Practice C. P.

under quarantine in said city. The de

fendant then had and still has a residence The granting or refusing of an appeal nunc in the City of Allentown, in charge of pro tunc from the judgment of a magistrate, servants during her absence. It seems is a matter of sound discretion. Where it ap: the person in charge of the house failed pears, from deposition taken, that the defendant has a just defense to the whole of the to inform defendant during her absence, plaintiff's claim, and that the plaintiff is in- as well as upon her return, of the fact debted to the defendant to an amount exceed- that a summons had been left at her ing plaintiff's claim, and that the defendant had no knowledge of the service of the summons place of residence, and that the defendat her dwelling house, the court will allow an ant at no time had knowledge of this suit appeal nunc pro tunc.

until the levy made on January 8th. The In the Court of Common Pleas of serting her rights, if any she had.

defendant certainly was diligent in asLehigh County. No. 6 April Term,

In A. J. Kutz & Son, etc. v. S. M. 1914. Queen City Motor Company v. Skinner, z la. Sup. Ct,, page 347, the Florence Iredell Berger. Rule to show Court held that the granting or refusing cause why an appeal should not be al- of an appeal nunc pro tunc from the lowed nunc pro tunc.

judgment of the magistrate was a matter June 15, 1914. Opinion by GROMAN, of sound discretion.

Applying the above rule under the cir

cumstances as brought out in this case, Suit in the above proceeding was and the facts established, the Court is brought before Alderman Robert L. inclined to exercise this discretion and Schiffert of Allentown, Lehigh County, allow the appeal nunc pro tunc. Pennsylvania, on December 4, 1913- Now, June 15, 1914, rule for allowing William Gruele, Constable, made return appeal nunc pro tunc from judgment enon December 5, 1913, that summons was tered by Robert L. Schiffert in the within served on an adult member of the family proceeding referred to is made absolute. on that date. December 10, 1913, the alderman heard the plaintiff ; the defendant failed to appeal. On the same day

Harbolt v. judgment was entered in favor of the

Western Maryland Railway plaintiff and against the defendant in the

Company sum of Ninety-five Dollars and Seventy- Attorney-at-Law Contingent fee five Cents ($95.75). January 3, 1914, an

Champerty. execution was issued by the alderman, and on the same date the constable levied Plaintiff executed an agreement with one of on the personal property of the defend his attorneys that the latter was to pay the fees ant. Same day the defendant, through of such expert witnesses as he might deem her attorney, presented a petition pray- day assigned to both attorneys one-half of

necessary to employ in the case, and the next ing for a rule on the plaintiff to show whatever verdict might be recovered, as full cause why an appeal nunc pro tunc payment of counsel fees. Held, on a petition should not be allowed. Depositions were

to set aside such assignment, that the petition taken and it was shown that the de

must be refused.

The Courts will determine from the facts of fendant,

in her petition for each case whether or not the spirit and purpose rule set forth, had a just defense of the law forbidding the pernicious promotion to the whole of the plaintiff's claim, of litigation has really been violated. and that the plaintiff was indebted to the counsel fees are enforceable after the rendition

Contracts for the payment of contingent defendant to an amount exceeding the of the services unless procured by fraud or plaintiff's claim. It appears further from other illegal means. the depositions that the defendant is a The financial assistance agreed to be ren

dered, in case it was thought necessary to proresident of the City of Allentown; that

cure expert witnesses, did constitute from November 27, 1913, to the 22nd champerty.

as

a

not

No. 86, January Term, 1914.

cause of the contract of December 16,

1913, and was really a part of it. But Petition to strike off and set aside as

the evidence fails to show that such was signment of one-half of the verdict of the case. On the contrary, it indicates $4000 rendered in this case in behalf of that Mr. Niles only learned of Mr. Kurtz' plaintiff.

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.

for its settlement. Mr. Niles' rights un

der the contract of December 16, 1913, H. C. Niles and Samuel Kurtz, contra.

are, therefore, not affected by that of September 28, 1914.

28, 1914. Opinion by December 15, 1913, and this assignment WANNER, P. J.

is valid and effective to secure his half

of the stipulated counsel fee. A verdict of $4000 having been recov- A reasonable and consistent construcered by the plaintiff in this case, his coun- tion of both contracts is that the plainsel, Messrs. Henry C. Niles and Samuel tiff was to retain control of his own case, Kurtz, filed of record his assignment to and was to pay all costs and expenses of them of one-half of the amount of said the litigation, except counsel fees, which verdict, in payment of their counsel fees. were made contingent under the contract

The plaintiff now asks the Court to of December 16, 1913, and the medical strike off and set aside said assignment, fees and expenses of such expert witon the ground that the contract retaining nesses as Mr. Kurtz might deem it Messrs. Niles and Kurtz as his counsel, necessary to incur during the progress of and assigning to them the one-half of the case. The latter Mr. Kurtz underwhat might be recovered for their fee, took to pay under the agreement of Dewas champertous and void. Said con- cember 15, 1913, apparently for the reatract, bearing date the 16th day of De- son that the plaintiff was financially uncember, 1913, provided that because of able to do so himself, the plaintiff's financial inability to pay Champerty is defined as “a bargain fees at that time, his counsel should made by a stranger with one of the receive one-half of the amount that might parties to a suit, by which such third be recovered in this case, for their com- person undertakes to carry on the litigapensation. It was also stipulated therein, tion at his own cost and risk, in considerthat the plaintiff should pay all the other ation of receiving, if he wins the suit, a costs and expenses of the litigation him- part of the land or other subject sought self, and that the case should not be to be recovered by the action;" Black's settled or compromised by counsel with- | Law Dictionary, page 188. out his consent.

All contracts for contingent fees, or This contract was clearly not cham- for a part of the money to be recovered pertous under the Pennsylvania decisions. in a suit in consideration of payment of Although it provided for a contingent costs by one who was not a party to the fee for counsel it was enforceable after record were at one time held to be chamthe rendition of the services therein pertous and void in England. But the stipulated for, unless it had been pro- rigid rule of the Common Law has been cured by fraud, or other illegal means; much relaxed in more recent times. Mumma's Appeal, 127 Pa., 474; Filon's It is now the usual practice of the Estate, 7 Dist. Rep., 316; Williams v. American Courts to determine from the Phila., 207 Pa., 272; Shoenberger's Es- facts of each case whether or not the tate, 211 Pa., 99.

spirit and purpose of the law forbidding It is contended, however, that it is af- the pernicious promotion of litigation has fected by the champertous nature of a really been violated. Exceptions to the prior contract of December 15, 1913, be- old rules forbidding others than record tween the plaintiff and Samuel Kurtz, parties to assist litigants have been made Esq., which contract it is alleged in the in favor of parties standing in certain replaintiff's petition, was the inducing lations to each other, e. g. that of Attorney and Client, in which cases mere J. E. Sickler, for plaintiff. incidental assistance in maintaining bona fide litigation, for the benefit of the plain- Warren, Knapp, O'Malley & Hill, for tiff, is held not to be champerous. The defendant. financial assistance agreed to be rendered by Mr. Kurtz in this case was optional

August 10, 1914. Opinion by New

COMB, J. and conditional upon his deeming it necessary to procure expert witnesses.

The land in dispute is the one-half We have found no case holding a similar part undivided of two certain parcels of agreement to be champertous, and are of which Charles W. Frasier died seized in the opinion that it does not properly fall fee as an equal tenant in common with within that definition, or within the more his son Frank. The father died testate recent rulings of the American Courts, in 1901. The son survived less than a relating to champertous contracts be- year, but in the meantime he had joined tween Attorneys and Clients.

with testator's widow-who had the life The whole subject will be found care-estate—in conveying the whole thing to fully reviewed in Gilman v. Jones, 4 L. defendant; and having been in turn surR. A. 113, and the numerous cases cited vived by one son, his sole issue, the latter in the footnotes thereto. See also Grace

now sues as remainderman entitled to v. Floyd, 61 S., 694, and In re Aldrich, possession under the grandfather's will 86 Α., ΙΟΙ.

upon the death of the widow whereby the The plaintiff's application to strike off life estate was ended in 1911. Thus both and set aside the assignment in question parties claim under Charles W. Frasier, is refused, at the cost of the plaintiff. and the single question in dispute is:

What was the nature of the interest deFrasier v. Scranton Gas & Water Company.

vised to Frank?

It is believed to be free from difficulty. Wills-Construction Life Etsate-Con- It has to do only with the disposition of

tingent RemaindersRule in Shelly's property by will concisely expressed in Case.

terms of ordinary usage, of familiar imA testator's will devised a life estate in cer

port, making complete sense, and on the tain land to his widow, and further provided face of which there is nothing contradicas follows: "After her death then I bequeath tory, ambiguous or obscure. Having the residue of all my estate both real and first provided for his widow, the testator personal to my son É for his own use and said: “After her death then I bequeath benefit forever, but in case my said son should die before the death of my wife, then it is my the residue of all my estate, both real and will that my estate should to his heirs, share personal, to my son Frank W. Frasier, and share alike.” The widow survived F. | for his own use and benefit forever, but

Held, that the death of F before the widow Vested the fee in his son T, his sole issue, as

in case my said son should die before the direct beneficiary under the will.

death of my wife, then it is my will The will created_alternative contingent re- that my estate should go to his heirs, mainders: One in F, in whom the fee would share and share alike.” have been vested had the widow died first; the other in the heir of F, who, upon his death

If this gave to Frank an estate of inbefore the widow, succeeded to the fee as heritance unconditionally, then, as a matpurchaser.

ter 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 fee by the express terms of the will; and thus property and it would have been subject his estate would neither stand in need of, nor to seizure for his debts, etc. But that could get any aid by operation of the rule.

While the policy of the law favors that would not be in accord with the father's interpretation of a will which would result in purpose as made manifest by what he a vested rather than contingent remainder, said. His meaning is unmistakable, viz.. that applies only in a doubtful, and not in a that the estate should go intact to Frank's clear case.

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

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