that the property was conveyed by Maria | Wohlsen then and there agreed with the Schwebel to Peter N. Wohlsen because widow and heirs of the said Charles she was unable through age and ill health | Schwebel, that in consideration of said to manage the same and because there were certain debts which she and her husband had contracted and it was necessary to borrow money to pay the same, which she could not do; that it was, therefore, agreed between the said Maria Schwebel and Peter N. Wohlsen that the property should be conveyed to him by a deed absolute in form, so that he might borrow the money on mortgage for the purpose of paying the debts which she and her husband, Charles Schwebel, had contracted; and that he might be in position to manage the property, for the purpose of preserving and conserving the same for the use of said widow and heirs of Charles Schwebel, deceased. The answer denies all these allegations and avers that the deed was for a cash consideration. In order to overcome the denial of these allegations of the bill in the answer, it is necessary to do so by the testimony of two witnesses, or that of one witness and corroborating circumstances. Again, the only witness testifying on this subject is Hon. Charles I. Landis. He said the purpose of the conveyance was to enable Peter N. Wohlsen to borrow money to pay the debts contracted by Charles Schwebel and Maria Schwebel. He also testified that she was old and not always in good health. He does not testify that any agreement was made between Maria Schwebel and Peter N. Wohlsen that he was to manage the property, or that he was to preserve and conserve it for the use of the widow and heirs of Charles Schwebel, deceased. Even though another witness had testified to all that Judge Landis does testify to, or had he been corroborated in every particular of this testimony by circumstances, we could not find, in face of the denial, the fact that there was any agreement between Maria Schwebel and Peter N. Wohlsen that he was to preserve and conserve the property for the widow and heirs of Charles Schwebel, deceased, because he does not say there was one. The eighth paragraph of the bill is as follows: "8. That the said Peter N. conveyance being made to him, he would hold the same for the use and benefit of the legatees under the will of the said Charles Schwebel; that is, for the use and benefit of the widow, Maria Schwebel, during her life, for her comfortable support and maintenance, and at her death, then, for the use and benefit of the children and grandchildren of the said Charles Schwebel, and he took the said title with the understanding and agreement that the said real estate was simply held by him in Trust for the uses and purposes aforesaid, and that he would sell and dispose of the same, and use and distribute the net proceeds thereof according to the terms, and in the manner provided by said will of Charles Schwebel, deceased." This is denied in the answer. There is not a scintilla of testimony to support this averment of the bill. The only testimony is that of George Schwebel, who testifies that, on February 21, 1907, he was present at the home of Peter Wohlsen: "Q. What, if anything, did you hear Peter N. Wohlsen say in regard to this property. A. I remember distinctly that he said instead of settling it up now if the heirs are agreed, it shall go one year from date and the properties shall enhance in value and I remember also he said there was $1,000 debt yet on the property and the rents and other interest accruing in this will at that time, he thinks, blot out that $1,000 and the real estate will sell for a higher figure and everyone would be better off, and the heirs agreed. Q. Anything else that you heard him say with regard to the reason of his holding this property, or anything further? A. No more than as I stated that it was for the benefit of the heirs, that the money should be divided equally between the heirs, that is, the proceeds over and above the $1,000." T. Scott Woods, also, testifies that, on December 20, 1912, he went to the home of Peter N. Wohlsen with Charles Schwebel; that he heard Mr. Schwebel ask him if he was read to make a settlement, and he said he could use some money now; Mr. Wohlsen re to, which does not justify us in finding that any such agreement had been made. plied that he wasn't quite ready yet, he | T. Scott Woods, who have been referred said, I have nothing to settle up with." Whether the settlement that was referred to was for the properties in question, or any claim that the plaintiffs may have upon them, does not appear. CONCLUSIONS OF LAW. The deed from Maria Schwebel to Peter N. Wohlsen is absolute on its face, and there is no writing to show that it was to be a trust. Under the act of as From this testimony we would not be justified in finding that, at the time the deed was made, any agreement such as issembly, we, therefore, could not find that alleged in the bill was made. That no he is trustee, unless a trust arises by opsuch agreement was made is further borne out by the fact that Peter Neration of law. We are unable to find any facts that show that a trust arose by Wohlsen took possession of the property operation of law. The plaintiffs are as soon as it was conveyed to him and therefore, not entitled to the relief prayed commenced extensive building operations upon it with his own money, or at least with any money not furnished by the widow or heirs of Charles Schwebel. This he would hardly have done had he held the property in trust for the widow and heirs. The tenth paragraph of the bill is as follows: 10. That frequently between the date of said deed, May 28, 1895, and the present time, the said Peter N. Wohlsen has admitted and stated to your orators and to others, that said conveyance was made to him for the use and benefit of the heirs of Charles Schwebel, deceased, as aforesaid, and at divers times, as lately as within the last two years past, he has called meetings of the heirs for the purpose of submitting an account and making a division thereof, but, upon the request of said heirs, he refused and neglected to render any account of the moneys received from the sale of the said real estate, and has refused and neglected to make any accounting of the said money received by him, and to make a division thereof among the legatees of the said Charles Schwebel, deceased; and recently, for the first time, has set up a claim that the heirs of Charles Schwebel were not interested in this ground nor in the proceeds. realized from the said sales of portions thereof and that the same is and was his property, and has started to improve certain portions of the said property on South Marshall Street, which still remain unsold; and has appropriated the proceeds of said sales to his own use." This is denied in the answer. The only testimony is that of Charles Schwebel and for. We are further of the opinion that the administrator of Maria Schwebel can have no interest in this property in any event, as she had only been given a life estate, which ended with her death. Nor do we think that the heirs of Charles Schwebel, deceased, can have any interest in it, unless there had been proof of an express agreement made with them. Whatever interest they had was through the will of Charles Schwebel, deceased. If Peter N. Wohlsen held as trustee, the administrator c. t. a. of Charles Schwebel would then be the one who would have to recover, and not the parties named as plaintiffs as his heirs. We, therefore, dismiss the bill at the costs of the plaintiffs. * * * Common Pleas--Law. Wimer, et al., Receivers of Quarryville A company owning a stallion gave him to one S. to manage for the company. Subsequently a committee of which the defendant was one was appointed to settle with S., and agreed with him that the stallion should be sold at public sale. He was purchased at the sale by the defendant, who gave for the purchase money a note signed by himself and another member of the committee, with the words "Per Com." opposite their names. In a suit by receivers of the company on this note, the defense produced testimony to show that the defendant acted for the company and not for himself, in buying the horse, their verdict for the defendant should not be note when presented upon the trial, showed opposite the names of these gentlemen the words " Per Com." The note was never used, but was handed back on the day of the sale to Harner. Immedi Rule for a new trial. C. P. of Lan-ately after the sale, the stallion was caster Co,, August Term 1914, No. 78. Coyle & Keller, for plaintiff and rule. John B. Graybill and John E. Malone, contra. June 26, 1915. Opinion by LANDIS, P. J. Counsel for the defendant in this case has filed six reasons for a new trial. The first, however, was abandoned on the argument, and the last is a general reason and need not be discussed. placed in the possession of William Myers, the other member of the committee, who kept him for several weeks, and he was then delivered to a man by the name of Slentz. While the horse was in Slentz's possession, he died. It was contended on the part of the defend ant that the sale was a sham sale and was gotten up for the purpose of getting the stallion out of the possession of Stewart; whereas, on the other hand, the plaintiffs' witnesses testified that no such arrangement was made and that the committee was never given any authority to so act; that the committee did not buy the horse, but that it was sold to Harner for himself and not for the company. It was testified by Harner and Wimer, two of the members of the committee, that the stallion was not sold to Harner individually, and it was in addition testified by Charles F. Hess, who was the secretary of the company, that the com Many of the facts which arose upon the trial were not in dispute. A number of persons associated themselves together under the name of the Quarryville Coach Horse Company, and the Company then purchased a stallion for service. It was agreed among them that the stallion should be handled by one, Ira Stewart, and it was placed in his possession and retained by him for about three years.mittee was appointed to do the best they In the month of April 1913, he had it could to get the horse or the money, and at Nottingham, Chester County. The that his understanding was that Harner members of the Company were desirous was not to pay for the horse. The minof procuring a settlement with Stewart utes were read, but not offered in eviand of securing possession of the stallion, dence, and they contain no record to that and a meeting was, therefore, held at effect. The Court, in instructing the Quarryville, at which a committee, con- jury, said: "Now, these are really the sisting of William Myers, Joseph H. disputed points between the parties; and Wimer and Charles L. Harner, the de- we say to you that, if, from all the evifendant, was appointed. This commit- dence, you find that Harner purchased tee was authorized to make the best set- this horse for himself, then he owes this tlement they could and secure possession money, and the verdict should be for the of the stallion. The committee went sum of $600, with interest. If, on the down to see Stewart. He refused to de- contrary, the manner of procuring the liver up the stallion, but agreed that it horse was placed in the hands of the comshould be put up at a public sale and sold |mittee,-these three persons, and this to the highest bidder. It was then agreed | committee authorized Harner to buy the that a sale should be held and that the horse for the company, and, in pursucommittee should have the matter in ance of those instructions, he did so, that charge. A sale was advertised and was is, bought it for the company and not actually held at the Unicorn on April 17, for himself, then he is not liable for the 1913, and the stallion was then knocked price for which it was knocked down, down to Harner for $600. A note was and the verdict should, under such cirsigned by Harner and Joseph H. Wimer cumstances, be in favor of the defendant. for that amount, payable at the Farmers | The evidence in the case is contradictory, National Bank of Quarryville, and the 'I do not see how you can reconcile it. You will do so, if you can; and, if you cannot reconcile it, you must determine what witnesses you will believe. You have seen the parties and the witnesses and have noted their manner of testifying, and, from all the testimony, which you will carefully consider, whether I have particularly referred to it or not, you will decide who is entitled to a verdict at your hands." Under these instructions, the jury found in favor of the defendant. The second reason presented complains that the Court erred in excluding the testimony of the witnesses offered in rebuttal. It is a little difficult to review the correctness of rulings under such a general reason. If it refers to the testimony of Kersey Rineer, it will be seen that he stated he was a member of the company, but was not present at the meeting of the 13th of April, when the horse was ordered to be sold. The offer was made to ask this witness whether the horse was ordered to be sold, and whether it was agreed by the company that it should be sold at a sham sale. As this was rebuttal, and the witness said that he was not present at the meeting, the Court disallowed the offer. He could not in rebuttal have testified as As a matter of fact, points were submitted, which were withdrawn by counsel for the defendant immediately after the conclusion of the charge. This would seem to indicate that it was perfectly satisfactory at that time. The fifth reason involved binding instructions, and how under the facts which were elucidated such instructions could have been given I am now at a loss to see. The whole question was one of fact, and it was submitted to the jury, where it properly belonged. I cannot see that any good reasons have been presented why a new trial should be granted in this case, and I, therefore, overrule them and discharge. the rule. Rule discharged. Legal Miscellany. Flaws in Prison System. At the American Prison Association meeting at Indianapolis, Judge Harry V. Osborne, of Newark, made an address, a portion of which is presented below. That we have a criminal problem to-day is largely due to the failure of society to discover and prevent those to what happened outside of the meet-contributing causes which lie at its root ing, unless reference had been made to some time and place in the defendant's testimony which it was desired to contradict. It seems to be very plain that it would have been improper for the Court to have allowed the witness to answer a question which apparently was not rebuttal at all. If the reason refers to the testimony of Ira Stewart (page 44), it must be to the disallowance of the question why he proposed that the note should be paid at the Farmers Bank, His undisclosed reason could certainly have little force. He had already been permitted to testify what he did, and that, it seems to me, was as far as he could go. The third and fourth reasons complain that the Court did not give adequate instructions to the jury. It will be recollected that the whole case was submitted to them, and no special instructions, so far as the record shows, were requested. and to its failure to provide for adequate treatment of the offender. If we are to secure practical results we must consider the problem from its psychological and medical, as well as its legal, aspect. "It has been estimated that there are some 500,000 prisoners in the United States, but the problem is far greater than can be measured by mere numbers. To just what extent our criminal problem is due to hereditary influences. environment, deficient mentality and definitely, but we do know that these inphysical defects it is impossible to say fluences are the cause of much incompetence and crime and most potent fa:tors in the development of the criminal career. Such conditions must necessarily produce inefficient men and women who are equipped neither mentally nor physically to compete in the struggle for existence or to withstand the temptations of life. We cannot close our eyes to the in fluence of heredity upon the conduct of | inal. Or, without care or control while the individual. The fact that nervous one or both parents work to gain a and mental diseases are often transmitted meager living for the family, he has little was known to Hippocrates and is now chance for wholesome recreation, and is generally recognized. The many physi- forced upon the streets of the slums. cal and mental defects and peculiarities The juvenile court, in dealing with his of the confirmed criminal may frequently case, should be able to recognize in him be traced to the ancestor, sometimes the victim of a bad heredity, injurious. through several generations. social conditions and inferior physical and mental development, and apply the appropriate remedy in the interests of the individual and of society: for physical defects, relief; for bad environment, good, and for moral degeneracy, supervision, instruction or custodial care. "The feeble-minded contribute largely to the criminal class. *** Easily led, readily susceptible to bad influence, or, when following their own defective judgment, readily falling into evil ways, they become criminals. Unrecognized, they are a most dangerous element in the community. This is particularly true of the morons, those so-called borderline cases, who are too frequently classed as merely ignorant by parents, teachers and courts. It is difficult to realize to how great an extent these unfortunates swell the ranks of the criminal class. “In a Binet test of 100 juvenile delinquents recently conducted at the House of Detention in Essex County, N. J., only eleven were found to be normal in respect to their mental equipment, and of the remainder examined, forty-two were regarded as irresponsible by reason of mental deficiency. They ranged from one to ten years below normal. But a single boy responded sufficiently to the tests to be rated above normal. These tests confirmed the results of a similar series of tests in the same institution about a year previously. "The development of the probation and parole system has solved a large part of our criminal problem in taking care of first offenders, where the nature of the offense and the character of the offender warrant their use. It is certain that a very large majority of probationers make good. Probation saves the state the expense of maintenance in an institution, the possibility of bad association while there and the consequent disgrace to the offender's family, as well as giving an opportunity to remedy home conditions, where they are the contributing causes of the delinquency. "We must not overlook the fact that the state has responsibilities to the offender, even after conviction. The time spent in prison should be devoted to the preparation of the prisoner, mentally and physically, to resume his place in society. Treatment in an institution which tends to irritate and weaken an already defective body and mind must. fail. "It is with the juvenile delinquent that the most effective preventive work can be done; as we have seen, he is seldom a normal child and he therefore re- "There is no justification in morals. quires exceptional care and treatment. for the continuance of the industrial sysUnless followed by intelligent treatment tems of prison administration still in his first arrest may be the beginning of vogue in some states. The contract and a criminal career. His first offense usu- lease systems should be abolished altoally results from his desire for amuse-gether and that of state use, so-called, in ment, or from bad environment and evil associations; he frequently begins by truancy, which may well be attributed in many cases to his inability to study owing to physical defects, he is then inevitably thrown among bad associates and ends by stealing. His parents, if he is not an orphan, which is frequently the case, are often degenerate, defective, immoral or crim some of its various forms, substituted. "Prisoners should not be placed at mechanical tasks which tend to benumb the functions and deaden the sensibilities. Nor should they be subjected to wearing humiliating garb and compelled to walk in a degrading manner, nor kept in solitude and idleness, except for disciplinary purposes for infraction of reasonable institutional rules. |