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whole amount; but if not money, appli- , securities representing money. Applicacation shall be made to the orphans' tion has been made to the Orphans' court having jurisdiction of the accounts Court, not“ to make an apportionment,' of the executors or administrators to because the case does not require it, and make apportionment, if the case requires if not for the distribution of money it, of the sum to be paid by such lega- for such "order as equity shall require." tees, and for such further order relative If the life-interest was to a lineal dethereto as equity shall require.”
scendant, an apportionment might be This section, which seems to have necessary. If that which has been done been intended for cases such as this, the was exactly fair, mathematically accurexceptants contend cannot be applied. ate, and as equity shall require, can more What to them appears an insurmount- be asked ? By the sixth section the tax able barrier is the result of a misreading “ shall be retained upon the whole of the section, and to make it so appear amount,” which in this case is $18,it was necessary to disregard punctua- 314.32. Five per cent of this is $915.72, tion and arbitrarily convert nouns into which is the whole tax, including that adjectives, take a class from a categor- on life-interest and remainder, and is ical system, make it qualify other classes what has been awarded. This is $20.75 of the same system, and thus cancel more than it would have been had there itself. It was read as if the words "upon not been an unnecessary general apa condition or contingency” qualified praisement of the estate or if it had been for life," " for a term of years and appealed from and the amount thereof for any other limited period.” That reduced to the actual balance. Because is, if a legacy was given for life, for a of the tax, the life-beneficiary's income term of years or for any other limited is inextricably reduced $45.78 yearly, period upon a condition or contingency, which is five per cent of $915.72, the then only shall it prevail. The error of amount by which the principal is reduced this is self-evident, and, therefore, does by the payment of the tax. Assuming not admit of demonstration. Each class that there should have been an apporof the system is separated by a comma. tionment, we find by reference to the That a legacy given upon a condition or Carlisle tables that the life-beneficiary's a legacy given upon a contingency is as expectancy of life, assuming his age now much subject to the provision of this to be fifty years, is twenty-one years, section as one given for life, is too ap- and its value $11,739.47, the tax on parent for controversy, and to exclude which would be $586.98, making the such would be a nullification of a legis- value of the interest in remainder the lative enactment. To most people this difference, or $6,574.84, and the tax on would be apparent if the last class had it $328.74. Five hundred and eighty-six been put first. It is not likely that the dollars and ninety-eight cents at commistake would have been made if the pound interest for twenty-one years, section read: “If the legacy subject to which would be 178.5963 per cent, will collateral inheritance tax be given upon amount to $1,635.30, or $45.78 a year. a condition or contingency, for life, or The remaindermen will receive $328.74 for a term of years, or for any other | less of principal by reason of the paylimited period, if the same be money, ment of the tax in the beginning, but will the tax thereon shall be retained upon | be obliged immediately upon coming into the whole amount.” The Act also says: possession to pay out of it $915.72, “If not money, application shall be which would be neither a loss nor a gain made to the orphans' court having juris- to either the Commonwealth or them, diction of the executors or administra- for $328.74 at compound interest for tors to make an apportionment, if the twenty-one years will make exactly case requires it, of the sum to be paid $915.72. (Interest has been computed by such legatees, and for such further at five per cent.) Wherein has lifeorder relative thereto as equity shall re- beneficiary, remainderman or Commonquire." Money is distributing, with | wealth been injured, and what would be the exceptants' gain or loss if the third | Henris's Estate, 53 Sup. Ct., 633. In section could be applied. How is it this case only the life-beneficiary's inpossible for any collateral legatee to be terest was subject to the tax, the remaininjured by the prompt payment of the der was exempt; therefore, it is not tax, whatever his interest or however | pertinent. In Commonwealth's Appeal, the bequest may be divided, and would 127 Pa., 435, only the remaindermen not any other practice distort the Act were taxable; the same in Coxe's Estate, and violate the policy of the law.
193 Pa., 100. Brown's Estate, 208 Pa., But let the sixth section of the Act be 161, has not been reported so that we construed in any way anyone chooses. can understand it, but owing to a simiLet “such further order relative thereto larity between the words of the will in as equity shall require " be strictly ap- that case and those of the will in this plied to life-estates, conditional or con- one, it might be argued that it was the tingent estates, or to conditional or con- | intention of the testator that the collattingent life-estates, or let it be expunged, eral tax should be paid out of the inwhat is the situation? The tax from come, as was ordered in that case, bewhich there can be no escape has been cause the testator so intended it. But ordered to be paid. It is to be paid out what would be the purpose of it? If of a fund which is subject to the tax. only the tax owing by the life-beneficiIt is as small a tax as will meet the re- aries was to be paid out of the income, quirements regardless of the fund from we fail to see why another should comwhich it is paid, by whom it is paid, or plain. Of course, if it referred to the when it is paid. No one is injured, in- whole tax, there was something to disconvenienced or deprived of anything. turb the life-beneficiaries, for the reIt is exactly just and comprehensively maindermen would be relieved. This equitable. No one is in a position to would be such an unusual condition that say that he has been wronged. If there hardly would such intention have been has been no wrong, there is no remedy. gathered from the testator's words, and The nothingness of nothing cannot be it is not understood that it was. If the exploited. The exceptants have nothing income of the estate in that time was infrom any point of view on which to sufficient to pay the tax on the lifestand. Disregarding this section, it is interests, could the Act be temporarily the duty of the executor to pay the tax annulled or the Commonwealth indefiand for the Court to award it, because it nitely held off until the income had is a collateral bequest-nothing did nor accumulated to meet the tax, because the could change it into anything else. A testator intended the tax to be paid out division of its enjoyment worked no of the income. The Court do not respect change in its character nor did it alter the directions of testators who specifithe toll attached to it. A gift to a wifecally declare their intention to have infor life, with the remainders to brothers come accumulated beyond the statutory and sisters, is not a collateral bequest. period, and not much importance, we Part of it is, and for the part the third imagine, would they attach to a testasection is provided.
tor's intention if it conflicted with the We are not passing on the question as | Act "for the better collection of collatto a devise of real estate, but a stronger eral inheritance tax.” It can be inferred argument confirmative of the construc- that in Brown's Estate a feature was the tion given the third section of the Act payment of the whole tax on the lifecan be offered as to it than has been as interests, and that there was ample into personal property.
come with which to do it, and therefore In none of the cases cited did the the intention of the testator was a negliquestion of jurisdiction arise, and there- gible quantity; or a question may have fore they are not in that respect anal- been raised as to the payment of the tax ogous, but they have dealt with section on other legacies, and it was not only three as operated by section twelve of one as to life-beneficiaries and remainthe Act. One of the latest decided is dermen. Mr. Justice Mestrezat concludes the opinion in Brown's Estate | Rule for judgment for want of a suffiwith this sentence: “If these taxes are i cient affidavit of defense. C. P. of Lanpaid out of the principal, the effect caster County, October Term 1914, No. would be to relieve the life-tenants from 36. the taxes charged against their interests
Coyle & Keller, for rule. and to compel the remaindermen to pay them as well as the taxes on the prin
Chas. IV. Eaby, contra. cipal when the remaindermen come into
January 9, 1915. Opinion by LANDIS, possession of it.” This is convincing P. 'J. that there was some question involved other than appears by the scanty report that the defendant is indebted to them in
The plaintiffs in their statement claim of the case. Certainly the Court never intended to convey the impression that the sum of $170.46, being the balance due if the tax be paid out of the principal on a book account, an itemized copy of the “ life tenants” would be relieved,
which is thereto attached, and in response for the “life tenants not only would to the same, the defendant has filed an contribute, but contribute their full share affidavit of defense, in which he does not to the tax if it be paid out of the prin- dispute any of the items in the account,
but he, in a general way,
denies that the cipal, because thereby their income would be reduced by the amount of the prices charged in said account for said interest which the sum thus deducted goods and merchandise were fair and
reasonable and the goods so sold and defrom the principal would have yielded.
In Penn-Gaskell's Estate (No. 1), 208 livered were reasonably worth the prices Pa., 342, "credit was asked for the whole respectively charged for the same. payment in the principal account." By Thereupon this rule was obtained for this we understand that credit was taken
judgment for want of a sufficient affifor the payment of the tax on both the davit of defense, and the case was sub
mitted without argument. life and remainder interests. To this credit exception was taken and an audi- that such an affidavit is sufficient. The
I do not see how it can be contended tor appointed to pass on it. The auditor law is very plain upon the subject, and appears to have “disallowed the credit it would seem a mere waste of time and claimed as to the part of the collateral effort to attempt to elaborate upon the inheritance tax assessed on the value of the life-tenant's interest,” but Mr. Jus- to be all that is required. Thus, in Jen
matter. A few illustrations appear to me tice Fell, in the opinion of the Court, kinson v. Hilands, 146 Pa., 380, a defense says, “That a contingency arose requir; was made that “the goods charged to the
defendant not affect the rights of the parties," with The Supreme Court said: “This is too
were excessive in amount.” which conclusion our mathematical cal
vague. It impliedly admits that some culation and finding are consistent. The exceptions are dismissed and the goods were furnished, and, if the amount
The exceptions are dismissed and the charged was excessive, the defendant adjudication is confirmed absolutely.
should have specified the excess, so that the plaintiff could have judgment for the
amount admitted to be due.” “An affiCommon Pleas-- Law davit of defense should set forth fully
and fairly facts sufficient to show prima
facie a good defense, and if it fails to do Watt & Shand v. Dorsheimer. so, either from omission of essential
facts, or manifest evasion in the mode of Suit for price of goods-Affidavit of defense.
statement, it will be insufficient to pre
vent judgment": Sprissler v. McIn a suit for the price of goods sold an Fetridge, 37 Sup., 607. In our own case affidavit of defense is insufficient which“ denies of Reilly Bros. & Raub v. Martin, 29 that the prices charged were fair and reasonable and the goods so sold and delivered were
LANC. Law REVIEW, 93 the affidavit of reasonably worth the prices charged.”
defense admitted the purchase and receipt of the goods, but averred that the which the plaintiff agreed to furnish the prices to be paid were the usual and or- lumber was reduced from $3,091 to dinary prices, whereas they were exorbi- $3.000. The defendant's deny that these tant and in excess of the market prices. changes in the contract were made, but It was held that the affidavit of defense the jury found that they had been made, was insufficient, in that it should have and as there is no complaint of our subspecified in what particular and to what mission of this question to the jury, we extent they were exorbitant.
must assume the fact to be as testified The rule is now made absolute, and to by plaintiff's witnesses and found by judgment is entered in favor of the plain the jury. tiffs for the sum of $170.46, with inter- The remaining question is whether the est from May 14, 1914, making $177.16. plaintiff furnished the kind and quality
of lumber he had agreed to furnish. Schock v. Mettfett.
The defendant complains that we erred Sale-Lack of quality in goods-Resale two particulars. One in instructing the
in submitting the question to the jury in -Repurchase.
jury that if the lumber was the kind that In an action for the price of lumber sold to was to be furnished according to the conbut rejected by the defendant as not of the tract, then the plaintiff acted within his proper quality it is not error to charge the jury rights in selling what the defendant had plaintiff properly resold it and credited the rejected, and crediting the amount realproceeds on his claim, and if it was not of the ized from that sale on his claim against proper quality the defendant was entitled to
the defendant. We think this is a corset off against the plaintiff's claim the amount required to buy in open market lumber of the
rect statement of the law. proper quality.
The other is that if the lumber fur
nished was not in accordance with the Rule for new trial. C. P. of Lancaster contract, the defendant was entitled to County. November Term 1912, No. 28. set off against plaintiff's claim the amount
John A. Nauman and W. U. Hensel, which he was required to pay in the open for defendant and rule.
market for lumber of the kind agreed
upon to take the place of that furnished. Coyle & Keller, contra.
We think this is a correct statement of January 9, 1915. Opinion by Has the law, but even if this was error we do SLER, J.
not think it is such of which the defendThree questions are involved in this ant can complain, as it is rather favorcase, which is a sci-fa. on a mechanics' able to him than otherwise.
We have examined our whole charge, lien, only two of which need be considered. They are, first, what was the con
and are not convinced that any error was tract between these parties, and, second, committed in submitting the case to the did the plaintiff comply with his part of jury, and we discharge the rule for a it in furnishing the kind and quality of
new trial. lumber he agreed to furnish?
Jarrett v. McCaskey. The contract was not in writing. In compliance with a request from the de- E.recution-Joint defendants. fendant, accompanied by a list of the
An execution must follow the judgment and lumber wanted, the plaintiff made a bid, will be set aside where it is issued only against offering to furnish it for $3,091. Before one defendant and the judgment is against two the bid was accepted, according to the defendant's jointly. plaintiff's testimony, it was agreed that Rule to set aside execution. C. P. of there should be a change in the kind of Lancaster County. August Term 1914, pine flooring and posts; that instead of Nos. 282 and 283. Fi.-fa.'s to November No. 2 pine flooring, No. 2 common yellow Term 1914, Nos. 37 and 38. pine flooring was to be furnished, and instead of locust posts, chestnut or cedar.
John E. Malone, for rule. When this change was made the price at Chas. G. Baker, contra.
January 9, 1915. Opinion by Has- his old friend Blackstone, who never SLER, J.
fails. The two judgments upon which the
From this source it is gratifying to above fieri faciases were issued were en
learn (III., 218) that a market is an “intered against Donald McCaskey and John corporeal hereditament,” and so is subK. Trewitz jointly. The fi.-fa's were ject to nuisance, aliter, liable to hurt, inissued against only one of them, Donald convenience, or damage; and moreover McCaskey, who now asks us to set them
(I. 274) that its establishment and mainaside. The reason upon which he bases tenance pertains to the King's prerogathis application is that the fi.-fa.'s do not market can only be set up by virtue of
tive, which necessarily implies that a follow the judgment in that they are not the King's grant, either express or imissued against both defendants. Troubat & Haly's Practice 1046 and plied from immemorial usage and prePatton on Pennsylvania Common Pleas scription. And since only sovereign Practice 589, the rule is stated that the power may establish and maintain a execution must follow the judgment and market, nothing less than sovereign be against all of the defendants. In power can discontinue it. Shaffer v. Watkins, 7 W. & S. 219, it is
This truth found the good citizens of said, on page 228,"If the judgment is Michigan, to their great comfort and joint then the fi.-fa. ought to be joint, be happiness, when divers and sundry procause execution must ensue the nature of gressives of the city of Detroit sought the judgment.” Saul v. Geist
, 1 Wood- to discontinue and divert the central ward 306; Mortland v. Himes, '8 Pa. 265; market of that city, fronting on the CamSheetz v. Wyncoop, 74 Pa. 198, are other pus Martius, which had been their resort cases where the rule is similarly stated and joy since the time Detroit was Cadiland applied.
lac's village. Then Taggart, not Tom, The fi.-fai's were, therefore, improperly
but Moses, came to their rescue as attorissued in that they do not follow the
judg- ney general, and, by a well-framed informents in being joint, and we make abso- mation in re a bill in equity against the lute the rule to set them aside.
city, stayed the progress of this improvement. Thus it is written in the volume
71 of Michigan Reports beginning at Legal Miscellany.
page 103, wherein was stoutly and effectively maintained the ancient and wholesome doctrine that a market was
not only to promote direct traffic and Markets.
commerce and eliminate the middleman,
but also to provide such victuals as BY HON. HENRY H. INGERSOLL.
people need (Bract. lib. 2, chap. 24), and Promise to contribute to Case and for the preservation of public order and Comment an article on “Markets ” is as the prevention of irregular behavior (1 readily given as asked; but breach of Bl. Rep., 580). such promise is not actionable, or, if so, The liberty, privilege, or franchise to damages are only nominal, since reason- hold a market was sometimes granted to able expectation of an abundant supply the lord of a manor, but usually to a of material may not be indulged. If you / village or town; and the conduct theredoubt this, consult Britannica or Ameri- of was prescribed in the grant, whereby cana or the International Encyclopedia, was established not only the place, but or Glanville's Treatise, or Holmes' Com- the time, for holding the same. Usually mon Law, or Sullivan's Business Law, they were kept once or twice a week, and and note the dearth. From these sources upon days fixed (Bract. lib. 2, chap. 24), one gets nothing ancient or modern, gen- as in Rochester on Wednesdays and Frieral or technical, and so is inclined petere days, and in Chatham on Tuesdays only. fontes. Bacon's Abridgment would Rex v. Butler, 3 Lev. 220. But in Lonsurely enlighten if only it had such a don every day was Market day except title; but it leaves to the veteran lawyer Sunday and the principal feasts, viz.,