ePub 版

only issues of fact are authorized to be allowing the defendant to introduce tried.

proof in opposition thereto. And, had We doubt not that the court below, the court refused to accept as conclusive after that careful reflection which is proof of the allegations of the complaint afforded to trial courts by a motion for the opinion of an expert and have a new trial, reached the conclusion that allowed the defendant to introduce counthe scope of the stipulation was entirely ter expert or other proof upon the questoo far-reaching, and calculated to pre- tion submitted to the arbitrament of the vent a fair and proper consideration of expert, such action on the part of the the merits of the case. At all events, it court could not upon any just reason be is manifest that the judge regarded it as held to have constituted an abuse of its not involving the proper way in which discretion in such case. It would be to try important questions of fact, and difficult to mark any reasonable line of considered it to be in the interest of jus trial court in that respect during the trial

distinction between the action of the tice to submit those questions to a retrial in the usual and proper mocle. We and its action, bringing about exactly the have not been cited to, and are unable, same result, in granting a new trial after after some independent investigation, to a review of the case upon a motion for find any case in California, or from the that purpose." other jurisdictions, which, in its facts, is It appeared that the trial court itself precisely similar to this, but in Harvey v. granted a new trial, but the Appellate Thorpe (28 Ala., 250, Am. Dec., 344), Court holds that it would have been where the attorney for the defendants proper to have ignored the stipulation signed an agreement admitting certain during the trial and received other evimaterial facts in the case, and from the ' dence. To have held this stipulation consequences of which agreement the de- absolutely binding would have been to fendants succeeded in relieving them- make what was very much like an arbiselves at the trial, the court said: 'Con-tration agreement irrevocable. The ceding, so far as the present case is con- practice of counsel to stipulate the existcerned, that attorneys may bind their ence of certain facts as a basis for the clients by such admissions as were here action of the court is, of course, well made, it is only necessary to observe recognized and constantly exercised. But that, where they are made improvidently the procedure here contemplated was inand by mistake, the court, by means of consistent with well-established judicial its coercive powers over its own officers, ' methods, and it would seem that has authority to relieve against the con- ' agreement to make a court a mere regissequences of the admission, regulating its tering agent of the view of a single exaction in this respect with a just regard pert witness is obnoxious to public policy for the rights of both parties, which it on the same ground as agreements oustcan do by setting aside the agreement ing courts from jurisdiction altogether, upon terms which will meet the justice and that the fact that the expert is to of the particular case,' citing i Greenl. be selected by the court does not affect on Ev., sec. 206. It is true that in that the question one way or the other. case the court was dealing with an ob- In Barry a Mutual Life Ins. Co. of New jection to the action of the trial court in York (53 X. Y., 536) it is broadly laid permitting the defendants to introduce down that "all stipulations and agreeevidence in opposition to their agreement ments made between parties in the progor admissions; but upon the point under ress of an action in the Supreme Court, consideration we are unable to draw any and affecting proceedings in it, and all distinction in principle between that case orders entered thereon, are within the and this. The stipulation in the case control of the court and may be set aside here did not, and could not, have the in the discretion of the court whenever effect of binding the trial court or con- the parties can be restored to the same cluring it in the exercise of its right to condition in which they would have been nullify the effect of the agreement by 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 in

terest and, therefore, is not in a position

to question the official conduct of the Orphans' Court.

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 Estate of Frederick Goos, deceased.

standing can not be successfully assailed,

otherwise if the vesting was conditional, Il'ill-Gift over to survivors--Vesting or occurred after the death of the lifeof remainder.

tenant. The essential parts of the will

are as follows: I testator's will gave all of his estate to his

** I give and bequeath to my dear wife widow during her life or widowhood, and provided that after her death or remarriage the Elizabeth all my estate, Real, personal executor should sell his real estate and divide and mixed of whatsoever nature the same the proceeds among his six children or the may be and wheresoever found, during survivors of them. Held, that the remainder vested perman

her natural life or as long as she reently at the death of the testator and the heir mains my widow. of a deceased son of the testator who sur- ** Should my said wife marry again vived him, but died before the widow had then I desire that she shall receive standing to petition the court after the widow's what the Laws of the State of Penndeath to order a sale of the real estate.

sylvania entitle her to. Mowrer's Estate, 19 Law Review, 233,

“After the death of my said wife Elidistinguished.

zabeth, or in the event of her marrying

again, I do order and direct, my hereRule to show cause why administrator inafter named Executor to sell at public d. b. n. c. t. a. should not be removed. or private sale, all the Real Estate of 0. C. of Lancaster Co., August Term which I may be possessed at the time of 1914, No. 72.

my decease, and the proceeds thereof,

after deducting costs and expenses, to be The petitioner is the widow of a son equally divided, share and share alike beof the testator who survived the testator

tween my six children, or the survivors but died before the testator's widow, and thereof viz. Lawrence Goos, Henry whose only child died after its father.

Goos, Louisa Goos, Charles Goos, Fred

erick Goos and Annie Goos and to their F. S. Groff, for rule.

heirs and assigns. 0. S. Schaeffer and F. Lyman Win

Nothing that we can say will add to dolph, contra.

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: This is a rule to show cause why Buckley 2. Reed, 15 Pa. 83; McBride v. Louisa Goos should not be removed as Smyth, 54 Pa. 245; Reck's Appeal, 78 administrator d. b. n. c. t. a. of the es- Pa. 432; Hancock's Appeal, 112 Pa. 532; tate of Frederick Goos, deceased, be- Martin's Estate, 185 Pa. 51; Steinmetz's cause she has refused to offer for sale Estate, 194 Pa. 611; Schuldt's Estate, real estate which he ordered to be sold | 199 Pa. 58; Reilly's Estate, 200 Pa. 288; by his executor after the death of his Lewis's Estate, 203 Pa. 219; Mulliken widow, and who died on the first day V. Earnshaw, 209 Pa. 226; Anderson's of June, 1914.

Estate, 243 Pa. 34; Smith's Appeal, 23 There may be good and sufficient rea- Pa. 9; Passmore's Appeal, 23 Pa. 381; Chew's Appeal, 37 Pa. 23; Woelpper's wife Margaret: I do order and direct Appeal, 126 Pa. 562; Thomman's Es- that my hereinafter named executor, tate, 161 Pa. 444. Carstensen's Estate, shall sell and dispose of my said one 196 Pa. 325; Shalleross's Estate, 200 Pa. story dwelling house with the ground 122; Black 7'. Woods, Appellant, 213 and appurtenances thereto belonging: at Pa. 583; Long's Estate, 228 Pa. 594. either public or private sale, to the best

But we have been placed in a con- advantage. And execute a good and spicuous light by a wagering on our con

lawful deed therefor to the purchaser sistency by reason of the decision in thereof: Ind also that my said executor Maurer's Estate, 19 LANCASTER LAW shall sell all my personal property, reREVIEW 223

The respondent's counsel maining after the death or marriage of insist that the will in that case and the my said wife. one in this are so nearly identical that a "Item. I give and bequeath the prodifferent testamentary intention is not 'ceeds of the sale of my said Real and discoverable and, therefore, a departure Personal Estate, remaining in the hands from the ruling in that case would be a of my said Executor, unto my four lamentable vagary. While in our efforts children, viz: Inna, Peter, Elizabeth and to administer exact justice by the rules Sarah, or to the survivors of them, in of an inexact science we may slip, we share and share alike." believe we would not lose our balance

By the words of this will Maurer did for the purpose of magnifying that "hob- not dispose of his estate until after it had goblin of light minds

a foolish con- been converted into money, which did sistency". There are features in each not nor was it to happen until after the of the two wills which closely resemble death of his widow. He gave his wife those in the other, just as do the fea- only " the use and occupation ” of a tures of two persons, each having eyes, house and the use of household furninose and mouth, and in the case of ture and kitchen utensils during her life. twins, may be, physically in every re

Not even upon her death did he dispose spect apparently the same.

But there of his estate. Before doing that, folalways is a marked difference of per- lowing her death, he directed his execusonality, even in twins. In a similar

tor to convert his estate, after which he way is the difference of purposes of : bequeathed to his children what was these testators distinguishable. Parts

remaining in the hands" of his execuof the Maurer will are as follows:

It seems to have been the wish of " Item. I give and bequeath unto my the testator to have his estate held in dear wife Margaret the use and occu- abeyance during the life of his widow; pation of my one story dwelling house, doubtless he did not understand that it with the ground and appurtenances could not be indefinitely suspended, that thereto belonging, fronting on North immediately upon his death it passed to Prince Street in the said City of Lan- some legal proprietor.

While he may caster, Bounded on the East by said have had no conception of the legal efNorth Prince Street, on the North by fect his death would have as to the title ground of Ann McDonnell, on the West to his estate, his words, nevertheless, disby ground of John Dorwart, and on the close his intention. He probably beSouth by ground of Elizabeth Stone; lieved that in some way his executor was during her life, or so long as she re- sufficient for all requirements. He seems mains my widow.

to have intended to break the descent “And I also give and bequeath unto and vest the estate in him. my said wife, during her life-or so As the estate of one dying vests at long as she remains my widow, all such once in some one, or escheats, it is more of my household furniture and kitchen logical to declare the estate intended for utensils as she may choose to retain for those who survive a life-tenant to be her use.

vested immediately upon the death of the “ Item: And after the decease, or ex- testator in all who might take and are piration of the widowhood of my said living at his death, conditionally that the


He says,

all my

interest of any dying before the life

Common Pleas-- Law 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

Beckett v. Beckett. not as Maurer did provide only for his Divorce -- Service-Publication-Act of wife's “ use and occupation ” of prop- May 9, 1913Statutes. erty and postpone the disposition of his estate until after her death, but his very

The Act of May 9, 1913, does not repeal the first declaration, after providing for subpena in divorce must be issued and re

statutes requiring that a subpena and alias debts and, funeral expenses, disposes of turned before service can be made by publihis whole estate. The frame of his will cation. is simple: "I give to my wife ... all

Libel for divorce. C. P. of Luzerne my estate " “

for life. After the death County. October Term, 1913, No. 674. of my said wife " it is “to be equally divided share and share alike between J. C. Murray, for libelant. my six children". "This clearly indicates an intention to have the remainder vest July 8, 1914. Opinion by STRAUSS, J. permanently at once.

This is an application for divorce, estate”. There is no undefinable sus- though the respondent husband has never pending as in Maurer's will. It may be been in Pennsylvania. The domicile of said that the result as far as the widows the marriage was New York, in which were concerned was the same. While desertion is not a

cause for divorce. this is true, nevertheless the methods of There was no service of any kind on the these testators while accomplishing simi- respondent, unless we accept the service lar results for their widows were so en

by publication. tirely different as to leave little doubt

Many, perhaps the greater number of that they differed in their intentions as

courts in Pennsylvania, have declined to the remaindermen.

jurisdiction in this class of cases. In Now, December 21, 1914, it is ordered this county, Judge Rice, in Jayne v. and decreed that unless Louisa Goos, ad- Jayne, 4 Kulp, 74, regarded the jurisdicministrator d. b. n. c. t. a. of the estate ' tion as doubtful; Judge Halsey, in Milof Frederick Goos, deceased, on or be- ler 2. Miller. 13 L. L. Rep., III, and fore January 7, 1915, shows a substan- Judge Wheaton, in Etherington v. Ethtial cause why the real estate remaining erington (unreported), decided against late of Frederick Goos, deceased, should the jurisdiction, citing Conrad v. Connot now be sold, she shall sell the same in rad, i Lack. J., 140; Zeno v. Zeno, 5 time to deliver the deed to the purchaser Lack. J., 140, and other cases. thereof and receive the purchase money Haddock v. Haddock, 201 U. S., 562, therefor on or before April 1, 1915; clearly established the nullity of such a otherwise, she is removed as administra- divorce beyond the limits of the state in tor d. b. n. c. t. a. of the estate of Fred- which it was granted, where that state erick Goos, deceased.

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 former statutes permitted jurisdiction to child as a moral relation, but also in the be acquired by publication only under distribution of estates and in the destruc- certain conditions. This new law is tion of rights of inheritance. Regarding plainly not intended to make publication a result of this nature to be against the the only form of service. It does not policy of the law and of ordinary moral- , repeal existing requirements that a subity and right, we are compelled to the pæna and the alias subpæna must be conclusion that the best public interest is issued and returned before service by found in following the majority of the publication shall be had, and the statute decisions in this state on this question must therefore be construed to mean that and in refusing to add to the number of whenever personal service of the subsuch divorces.

pona or alias cannot be had within the But the master has reported in favor commonwealth, service may be made by of this divorce because of the Act of publication as prescribed by former statMay 9, 1913, which apparently was in- utes upon anyone who by reason of pretended to cover such cases. A careful vious domicile is subject to the laws of reading of that statute, however, shows the commonwealth in matters relating to it to be impotent for the purpose for his marriage or divorce. As the responwhich the framer may have intended it. dent was never personally domiciled in It reads:

Pennsylvania, the Act of 1913 does not “ Section 1. The several courts of apply to him. For this reason, and becommon pleas shall have jurisdiction in cause he has not been personally served any action of divorce for any cause now

within the state and has not appeared, or hereafter allowed by law, notwith-| this court is without jurisdiction. standing the fact that the marriage of Now, July 8, 1914, for the reasons the parties and the cause of divorce given in the opinion herewith filed, this occurred outside of this commonwealth, application for divorce is refused and and that both parties were at the time of the petition is dismissed. the occurrence of said cause domiciled without this commonwealth, and that the

Gelb v. Weisperger. respondent has been served with the subpoena only by publication, as required by IVills-Real Estate - Authority to selllaw. In such cases the libelant shall be

Sufficiency of. a competent witness to prove his or her residence within this commonwealth.

Testator left certain real estate and his “ Section 2. The said courts shall also his estate for life

will provided that his wife should have all

" with the privilege of disentertain jurisdiction of all cases of posing of any or all of the real estate if she divorce from the bonds of matrimony, choose". Certain trusts were created after

the death of the widow. for any causes now or hereafter pro

Held that the will from its provisions and vided for by law, when the libelant or wording intended that the widow should have applicant for such divorce shall, at the a life estate only but that it gave her power time of filing the petition or libel in

to make a sale of the real estate in fee, the divorce, have been a resident of this proceeds being subject to the control of the

Orphans' Court. commonwealth for one year previous to the filing of the petition or libel in Sur case stated in amicable action of divorce.

assumpsit. C. P. Allegheny County. It is therefore clear that this enact-July Term, 1914, No. 2129. ment adds nothing to existing law.

Blakeley & Calvert, for plaintiff. Wherever the courts now have jurisdiction they shall continue to have jurisdic

Edward Steiner, for defendant. tion, and wherever hereafter the courts

June 29, 1914. Opinion by SHAFER, J. may be given jurisdiction by the legislature, they shall have it. Nothing more In an amicable action for the purchase and nothing less. They acquire no new money of land the parties have agreed jurisdiction by virtue of this statute. I upon a case stated, in the nature of a

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