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only issues of fact are authorized to be tried.
We doubt not that the court below, after that careful reflection which is afforded to trial courts by a motion for a new trial, reached the conclusion that the scope of the stipulation was entirely too far-reaching, and calculated to prevent a fair and proper consideration of the merits of the case. At all events, it is manifest that the judge regarded it as not involving the proper way in which to try important questions of fact, and considered it to be in the interest of justice to submit those questions to a retrial in the usual and proper mode. We have not been cited to, and are unable, after some independent investigation, to find any case in California, or from the other jurisdictions, which, in its facts, is precisely similar to this, but in Harvey v. Thorpe (28 Ala., 250, Am. Dec., 344), where the attorney for the defendants signed an agreement admitting certain material facts in the case, and from the consequences of which agreement the defendants succeeded in relieving themselves at the trial, the court said: 'Conceding, so far as the present case is concerned, that attorneys may bind their clients by such admissions as were here made, it is only necessary to observe that, where they are made improvidently and by mistake, the court, by means of its coercive powers over its own officers, has authority to relieve against the consequences of the admission, regulating its action in this respect with a just regard for the rights of both parties, which it can do by setting aside the agreement upon terms which will meet the justice of the particular case,' citing I Greenl. on Ev., sec. 206. It is true that in that case the court was dealing with an objection to the action of the trial court in permitting the defendants to introduce evidence in opposition to their agreement or admissions; but upon the point under consideration we are unable to draw any distinction in principle between that case and this. The stipulation in the case here did not, and could not, have the effect of binding the trial court or concluding it in the exercise of its right to nullify the effect of the agreement by
allowing the defendant to introduce proof in opposition thereto. And, had the court refused to accept as conclusive proof of the allegations of the complaint the opinion of an expert and have allowed the defendant to introduce counter expert or other proof upon the question submitted to the arbitrament of the expert, such action on the part of the court could not upon any just reason be held to have constituted an abuse of its discretion in such case. It would be difficult to mark any reasonable line of distinction between the action of the trial court in that respect during the trial and its action, bringing about exactly the same result, in granting a new trial after a review of the case upon a motion for that purpose."
It appeared that the trial court itself granted a new trial, but the Appellate Court holds that it would have been proper to have ignored the stipulation during the trial and received other evidence. To have held this stipulation absolutely binding would have been to make what was very much like an arbitration agreement irrevocable. The practice of counsel to stipulate the existence of certain facts as a basis for the action of the court is, of course, well recognized and constantly exercised. But the procedure here contemplated was inconsistent with well-established judicial methods, and it would seem that an agreement to make a court a mere registering agent of the view of a single expert witness is obnoxious to public policy on the same ground as agreements ousting courts from jurisdiction altogether. and that the fact that the expert is to be selected by the court does not affect the question one way or the other.
In Barry 2. Mutual Life Ins. Co. of New York (53 N. Y.. 536) it is broadly laid down that "all stipulations and agreements made between parties in the progress of an action in the Supreme Court, and affecting proceedings in it, and all orders entered thereon, are within the control of the court and may be set aside in the discretion of the court whenever the parties can be restored to the same condition in which they would have been if no agreement had been made.”
-N. Y. Law Journal.
sons why the administrator d. b. n. c. t. a.
LANCASTER LAW REVIEW. should not have attempted a sale, but
the issue raised is purely upon the
VOL. XXXII.] FRIDAY, DEC. 25, 1914. [No. 8 ground that the petitioner has no interest and, therefore, is not in a position to question the official conduct of the respondent. A life-estate in the "estate" was given to the widow. If the remainder vested permanently at the death of the testator, the petitioner's standing can not be successfully assailed, otherwise if the vesting was conditional, or occurred after the death of the lifetenant. The essential parts of the will are as follows:
Estate of Frederick Goos, deceased. Will-Gift over to survivors-l'esting of remainder.
A testator's will gave all of his estate to his widow during her life or widowhood, and provided that after her death or remarriage the executor should sell his real estate and divide the proceeds among his six children or the survivors of them.
Held, that the remainder vested permanently at the death of the testator and the heir of a deceased son of the testator who survived him, but died before the widow had standing to petition the court after the widow's
death to order a sale of the real estate.
Mowrer's Estate, 19 Law Review, 233, distinguished.
Rule to show cause why administrator d. b. n. c. t. a. should not be removed. O. C. of Lancaster Co., August Term 1914, No. 72.
The petitioner is the widow of a son of the testator who survived the testator but died before the testator's widow, and whose only child died after its father.
F. S. Groff, for rule.
O. S. Schaeffer and F. Lyman Windolph, contra.
This is a rule to show cause why Louisa Goos should not be removed as administrator d. b. n. c. t. a. of the estate of Frederick Goos, deceased, because she has refused to offer for sale real estate which he ordered to be sold by his executor after the death of his widow, and who died on the first day of June, 1914.
There may be good and sufficient rea
"I give and bequeath to my dear wife. Elizabeth all my estate, Real, personal and mixed of whatsoever nature the same may be and wheresoever found, during her natural life or as long as she remains my widow.
"Should my said wife marry again then I desire that she shall receive what the Laws of the State of Pennsylvania entitle her to.
"After the death of my said wife Elizabeth, or in the event of her marrying again, I do order and direct, my hereinafter named Executor to sell at public or private sale, all the Real Estate of which I may be possessed at the time of my decease, and the proceeds thereof, after deducting costs and expenses, to be equally divided, share and share alike between my six children, or the survivors thereof viz. Lawrence Goos, Henry Goos, Louisa Goos, Charles Goos, Frederick Goos and Annie Goos and to their heirs and assigns."
Nothing that we can say will add to or elucidate what has been said on the subject of vested remainders. In the
December 21, 1914. Opinion by reports of the following cases will be SMITH, P. J. found the opinions of some of the most distinguished judges on the question: Buckley v. Reed, 15 Pa. 83; McBride v. Smyth, 54 Pa. 245; Reck's Appeal, 78 Pa. 432; Hancock's Appeal, 112 Pa. 532; Martin's Estate, 185 Pa. 51; Steinmetz's Estate, 194 Pa. 611; Schuldt's Estate, 199 Pa. 58; Reilly's Estate, 200 Pa. 288; Lewis's Estate, 203 Pa. 219; Mulliken v. Earnshaw, 209 Pa. 226; Anderson's Estate, 243 Pa. 34; Smith's Appeal, 23 Pa. 9; Passmore's Appeal, 23 Pa. 381;
Chew's Appeal, 37 Pa. 23; Woelpper's Appeal, 126 Pa. 562; Thomman's Estate, 161 Pa. 444. Carstensen's Estate, 196 Pa. 325; Shallcross's Estate, 200 Pa. 122; Black v. Woods, Appellant, 213 Pa. 583; Long's Estate, 228 Pa. 594.
But we have been placed in a conspicuous light by a wagering on our consistency by reason of the decision in Maurer's Estate, 19 LANCASTER LAW REVIEW 223. The respondent's counsel insist that the will in that case and the one in this are so nearly identical that a different testamentary intention is not discoverable and, therefore, a departure from the ruling in that case would be a lamentable vagary. While in our efforts to administer exact justice by the rules of an inexact science we may slip, we believe we would not lose our balance for the purpose of magnifying that "hobgoblin of light minds a foolish consistency". There are features in each of the two wills which closely resemble those in the other, just as do the features of two persons, each having eyes, nose and mouth, and in the case of twins, may be, physically in every respect apparently the same. But there always is a marked difference of personality, even in twins. In a similar way is the difference of purposes of these testators distinguishable. of the Maurer will are as follows:
"Item. I give and bequeath unto my dear wife Margaret the use and occupation of my one story dwelling house, with the ground and appurtenances thereto belonging, fronting on North Prince Street in the said City of Lancaster, Bounded on the East by said North Prince Street, on the North by ground of Ann McDonnell, on the West by ground of John Dorwart, and on the South by ground of Elizabeth Stone; during her life, or so long as she remains my widow.
"And I also give and bequeath unto my said wife, during her life-or so long as she remains my widow, all such of my household furniture and kitchen utensils as she may choose to retain for her use.
"Item: And after the decease, or expiration of the widowhood of my said
By the words of this will Maurer did not dispose of his estate until after it had been converted into money, which did not nor was it to happen until after the death of his widow. He gave his wife only the use and occupation" of a house and the use of household furniture and kitchen utensils during her life. Not even upon her death did he dispose of his estate. Before doing that, following her death, he directed his executor to convert his estate, after which he bequeathed to his children what was
remaining in the hands" of his executor. It seems to have been the wish of the testator to have his estate held in abeyance during the life of his widow; doubtless he did not understand that it could not be indefinitely suspended, that immediately upon his death it passed to some legal proprietor. While he may have had no conception of the legal effect his death would have as to the title to his estate, his words, nevertheless, disclose his intention. He probably believed that in some way his executor was sufficient for all requirements. He seems to have intended to break the descent and vest the estate in him.
As the estate of one dying vests at once in some one, or escheats, it is more logical to declare the estate intended for those who survive a life-tenant to be vested immediately upon the death of the testator in all who might take and are living at his death, conditionally that the
interest of any dying before the life- | tenant is devested by his or her death.
By the Goos will now interpreting there has been an unconditional vesting in the remaindermen. This testator does not as Maurer did provide only for his wife's use and occupation" of property and postpone the disposition of his estate until after her death, but his very first declaration, after providing for debts and, funeral expenses, disposes of his whole estate. The frame of his will is simple: "I give to my wife . . . all my estate" for life. After the death of my said wife" it is "to be equally divided share and share alike between my six children ". This clearly indicates an intention to have the remainder vest
permanently at once. He says, "all my estate". There is no undefinable suspending as in Maurer's will. It may be said that the result as far as the widows were concerned was the same. While this is true, nevertheless the methods of these testators while accomplishing similar results for their widows were so entirely different as to leave little doubt that they differed in their intentions as to the remaindermen.
Now, December 21, 1914, it is ordered and decreed that unless Louisa Goos, administrator d. b. n. c. t. a. of the estate of Frederick Goos, deceased, on or before January 7, 1915, shows a substantial cause why the real estate remaining late of Frederick Goos, deceased, should not now be sold, she shall sell the same in time to deliver the deed to the purchaser thereof and receive the purchase money therefor on or before April 1, 1915; otherwise, she is removed as administrator d. b. n. c. t. a. of the estate of Frederick Goos, deceased.
Common Pleas-- Law
Beckett v. Beckett.
Divorce-Service-Publication-Act of May 9, 1913-Statutes.
The Act of May 9, 1913, does not repeal the subpoena in divorce must be issued and restatutes requiring that a subpoena and alias turned before service can be made by publi
Libel for divorce. C. P. of Luzerne
County. October Term, 1913, No. 674.
J. C. Murray, for libelant.
July 8, 1914. Opinion by STRAUSS, J. This is an application for divorce, though the respondent husband has never been in Pennsylvania. The domicile of the marriage was New York, in which desertion is not a cause for divorce. There was no service of any kind on the respondent, unless we accept the service by publication.
Many, perhaps the greater number of courts in Pennsylvania, have declined jurisdiction in this class of cases. In this county, Judge Rice, in Jayne v. Jayne, 4 Kulp, 74, regarded the jurisdiction as doubtful; Judge Halsey, in Miller v. Miller, 13 L. L. Rep., III, and Judge Wheaton, in Etherington v. Etherington (unreported), decided against the jurisdiction, citing Conrad v. Conrad, I Lack. J., 140; Zeno v. Zeno, 5 Lack. J., 140, and other cases.
Haddock . Haddock, 201 U. S., 562, clearly establishel the nullity of such a divorce beyond the limits of the state in which it was granted, where that state was not the domicile of the marriage, and where the service on the respondent was constructive only, though it was conceded that another state has power by legislation to give local validity to such a divorce.
It seems, therefore, that granting divorces of this class in Pennsylvania, or in any other state, is likely to result in illegitimating children of subsequent marriages in other of the states of the Union and thereby to cause great hardship not only through the destruction of
the fundamental relation of father and child as a moral relation, but also in the distribution of estates and in the destruction of rights of inheritance. Regarding a result of this nature to be against the policy of the law and of ordinary morality and right, we are compelled to the conclusion that the best public interest is found in following the majority of the decisions in this state on this question and in refusing to add to the number of such divorces.
But the master has reported in favor of this divorce because of the Act of May 9, 1913, which apparently was intended to cover such cases. A careful reading of that statute, however, shows it to be impotent for the purpose for which the framer may have intended it. It reads:
"Section 1. The several courts of common pleas shall have jurisdiction in any action of divorce for any cause now or hereafter allowed by law, notwithstanding the fact that the marriage of the parties and the cause of divorce occurred outside of this commonwealth, and that both parties were at the time of the occurrence of said cause domiciled without this commonwealth, and that the respondent has been served with the subpœna only by publication, as required by law. In such cases the libelant shall be a competent witness to prove his or her residence within this commonwealth.
"Section 2. The said courts shall also entertain jurisdiction of all cases of divorce from the bonds of matrimony, for any causes now or hereafter provided for by law, when the libelant or applicant for such divorce shall, at the time of filing the petition or libel in divorce, have been a resident of this commonwealth for one year previous to the filing of the petition or libel in divorce."
It is therefore clear that this enactment adds nothing to existing law. Wherever the courts now have jurisdiction they shall continue to have jurisdiction, and wherever hereafter the courts may be given jurisdiction by the legislature, they shall have it. Nothing more and nothing less. They acquire no new jurisdiction by virtue of this statute.
Former statutes permitted jurisdiction to be acquired by publication only under certain conditions. This new law is plainly not intended to make publication the only form of service. It does not repeal existing requirements that a subpoena and the alias subpoena must be issued and returned before service by publication shall be had, and the statute must therefore be construed to mean that whenever personal service of the subpœna or alias cannot be had within the commonwealth, service may be made by publication as prescribed by former statutes upon anyone who by reason of previous domicile is subject to the laws of the commonwealth in matters relating to his marriage or divorce. As the respondent was never personally domiciled in Pennsylvania, the Act of 1913 does not apply to him. For this reason, and because he has not been personally served within the state and has not appeared, this court is without jurisdiction.
Now, July 8, 1914, for the reasons given in the opinion herewith filed, this application for divorce is refused and the petition is dismissed.
Gelb v. Weisperger. Wills-Real Estate-Authority to sellSufficiency of.
Testator left certain real estate and his will provided that his wife should have all his estate for life "with the privilege of disposing of any or all of the real estate if she choose ". Certain trusts were created after
the death of the widow.
He'd that the will from its provisions and wording intended that the widow should have a life estate only but that it gave her power to make a sale of the real estate in fee, the proceeds being subject to the control of the Orphans' Court.
Sur case stated in amicable action of assumpsit. C. P. Allegheny County. July Term, 1914, No. 2129.
Blakeley & Calvert, for plaintiff. Edward Steiner, for defendant. June 29, 1914. Opinion by SHAFER, J. In an amicable action for the purchase money of land the parties have agreed upon a case stated, in the nature of a