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event shall go to Frank's heirs. It wasn't operating only as a collateral circumin mind that they should succeed through stance entirely extraneous to the terms Frank. “His heirs," however, could and conditions of the gift and about serve as an apt term of description to which the will did not concern itself. In designate the class to take under the will such case the testator must of necessity provided Frank did not live to succeed be deemed to have left the consequences to its actual benefits.

of an untimely death--so to speak-in Neither discussion nor citation of au- the hands of the law, and the principle of thority is needed to show that the inten- representation does the rest, so there is tion to be gathered from the instrument, nothing to prevent the immediate vesting if clear, must govern save only where it of the remainder at one time as well as is subject to disappointment by operation another. But that cannot consistently be of an artificial rule of property next here- so where specific provision is made for inafter mentioned. Hence, the argument the event during the outstanding life esof defendant's counsel that the facts give tate whereby some other person, or class rise to two questions:

of persons, is designated to succeed the (1) Was Frank's interest vested rather life tenant. And it can make no differthan contingent? and, if so, (2) Does the ence either in law or logic that the one rule in Shelly's case apply, thus convert- devise cast the succession upon the heirs ing it into a remainder in fee simple ? of him who otherwise would have suc

Time is not at our disposal for refer- ceeded. It could have been given to a ence to the numerous decisions cited pro stranger or a stranger's heirs. In either and con; but they lie around the proposi- case whoever succeeds to the remainder tion that it should be regarded as vested takes it as direct beneficiary of the will, because the right of property passed at and not through an intermediate ancestestator's death notwithstanding its actual tor. The mere fact that he who claims possession and enjoyment were tempor- as remainderman is the one who would arily postponed.

have inherited does not prevent him from The principle in mind of counsel is well taking as purchaser; Affolter V. May, defined and not in dispute. But to bring 115 Pa., 54. this case within its operation is another This may serve to bring into view anthing, of which defendant must be other difficulty with which defendant is deemed to have the burden.

confronted. If it be true that Frank It is said that the only condition ex- took a vested remainder, the question pressed in the devise is one which is arises: Why the necessity of resorting to necessarily implied in case of every the rule in Shelley's case? It is inconvested remainder, to wit: the survival of 1 ceivable that the estate could ever vest the remainderman beyond the termina- except at its face value. According to tion of the particular estate; and that the the express terms of the devise he would test to be applied is the existence of some take, if at all, for his own use and benefit person capable of taking the immediate forever," and this, under the Act of 1833, use of the property if the particular es- would pass the whole estate; JeDevitt's tate were presently determined. Thus, Appeal, 13 Pa., 103. In that quality says the learned counsel, the inquiry here his estate would stand in no need of aid is as to the right of property; if the right from any other source.

What is more, to the estate was vested the remainder it could get none by operation of the Rule. was vested, although the actual enjoy- A fee cannot be mounted upon another ment never came to Frank.

fee. Where the first taker, so called, Granting the premises to be true that gets the fee simple there can be no limiresult would undoubtedly follow; but tation over, as nothing remains to be they cannot be taken for granted as it limited. Most assuredly if Frank took would be merely begging the critical anything it was not an estate for life, question. The analogy sought to be in- whether his own or that of any other voked is invalid as it is derived from person. those cases where the actual enjoyment Counsel's theory may have been one to is defeated by the casual event of death 'which, either consciously or


sciously, he felt himself driven as the inevitably gone;" Mitchell on Real Est. choice between the two horns of a di- & Conveyancing, 237 lemma. It would seem to offer the only This is the classification to which the means of escape from the embarrassment present case belongs. As an example of rejecting the other provision as mere Fetrow's Est., 58 Pa., 424, is cited. Tessurplusage. But that would be against tator had devised land to one M. W. for the cardinal rule of testamentary inter- | life and at her death to her children in pretation which requires effect to be fee. If she should leave no children, , given to all and singular its provisions then to M. F. and others in fee. M. W. and harmony to the entire will if pos- died without children. It was held that sible; and on that score no trouble need two contingent remainders were created, be had in this instance.

one to the children, if any, of M. W., Attention is called to the policy of the and, as an alternative in default of such law which, as between a contingent and children, another contingent remainder

An illustration a vested remainder would favor the lat- to M. F. and others, ter. But that applies only in doubtful more directly in point for present purcases, and unless this case has been radi- poses will be found in the construction cally misconceived it must be regarded as of Crean's Will, in Buzby's Appeal, 61 free from doubt.

Ib., 111, as the “right heirs” of testator

were there held entitled to succeed as It must be borne in mind, as already noted, that on the face of the devise of devisees, and that in the meantime

purchasers upon failure of another class plaintiff's right was not that of succession the respective interests had been that of through his father as predecessor either alternative contingent remainders. in title or possession. True, whether he

As between Frank and this plaintiff, should ever succeed or not was wholly that was the situation here during the dependent upon his father's death before joint lives of Frank and his mother. Had the life estate expired. If that didn't the mother died first it would have operhappen, the provision for the benefit of lated to convert Frank's interest into a his heirs fell. But it did happen; and vested remainder in fee. But the reverse thus in the uncertain course of events the of that happened, thus vesting it in this very thing occurred which was appointed plaintiff. It follows that the title and to cast the succession upon the class to right of possession were well vested in which the plaintiff alone belongs. If, him at and before the inception of this therefore, such class had any right at all suit, and that is decisive of the issue. it was to succeed in default of another de- Judgment on the demurrer for plaintiff visee nominatim. As such the success- for the land described in the writ. sion would be direct by force and effect of an alternative devise; that is to say, a purchaser.

Legal Miscellany. " It has been stated," says Professor Mitchell, “ that after a fee was once created and given, no further limitation

Jurisdiction of Teachers and School Board. could be made by way of remainder, for the fee simple was all the estate and when

DISCUSSED BY IOWA EDUCATOR. that is given nothing remains. There is May the teacher lawfully punish a a class of cases which seem to form an pupil for acts committed between home exception to this rule, but do not, in prin- and school? Must he take cognizance ciple. Thus, where a remainder in fee is of such acts, or may he disregard them. given to vest in a certain contingency in What is the nature of his jurisdiction one person, and in the reverse of that over the pupil at such times? are some contingency in another person, both re- of the questions asked and answered by mainders are contingent, but they are not

Prof. B. B. Bassett, of Iowa City, writmounted, a fee upon a fee. They are ing in the September Case and Comment, alternative, only one can ever take effect,

the author says: and when one vests in fee, the other is Fourteen states have defined the

teacher's jurisdiction in part by statute. a pupil for violating the same was susAlthough it extends in each case beyond tained, although the offense was comthe school premises, there are four dif- mitted away from the school premises, ferent boundaries defined: (1) From the and out of school hours. See Kinzer v. time the pupil leaves the parental roof Independent School Dist. (Kinzer v. until he arrives home again. Arizona, Toms) 129 Iowa, 441, 105 N. W. 686, 6 California, Idaho, Kentucky, Mississippi, Ann. Cas. 996, 3 L. R. A. (N. S.) 496. Nevada, New Jersey, Pennsylvania, Vir

JOINING SECRET SOCIETIES. ginia and Washington. (2) From the time the pupil leaves home for school

In Wayland v. Hughes (Wayland v. ground until he arrives home from School Dist. No. I), 43 Wash. 441, 86 school. West Virginia. (3) From the Pac. 642, 7 L. R. A. (N. S.) 352, it was time the pupil leaves home for school held that the board may prohibit pupils until he leaves school for home. Mon; of losing all privileges of the school ex

from joining secret societies on penalty tana. (4) When“ near " the school ground. Florida.

cept that of attendance at classes. JoinThe exercise of this control is either ing secret societies is now prohibited to obligatory on the part of the teacher- pupils by statute in California, Indiana,

Iowa, Kansas, Minnesota, Ohio and (Arizona, California, Florida, Idaho, Kentucky, Mississippi, New Jersey, Ne

Oregon vada, Virginia) or permissive and dis

RÉSUMÉ. cretionary (Montana, Pennsylvania, The jurisdiction of the teacher and West Virginia and Washington). school board may be briefly summarized

as follows: (1) In the legitimate exerATTENDING SOCIAL PARTIES.

cise of his functions, the control of the In Dritt v. Snodgrass, 66 Mo. 286, 27 teacher over the pupil while on the school Am. Rep. 343, it was held that a pupil premises is complete and exclusive. (2) could not be suspended for violating a

On the way to and from school, the rule against attending social parties teacher's jurisdiction is concurrent with where the parents gave their consent, and that of the parent, but punishment for it was not shown that there was anything acts committed by the pupil at such times immoral in such act.

may be inflicted by the teacher only after REQUIRING HOME STUDY.

the pupil has returned to school. (3) The right of the teacher or school After the pupil arrives home, the parboard to make and enforce a rule requir-ent's control is complete and exclusive ing pupils to prepare lessons at home has for all ordinary acts; but where acts of been denied by the courts of both this the pupil have an immediate tendency country and England.

to injure the school, they may be punIn the case of Hunter v. Johnson ished by the teacher. (1884) L. R. 13 Q. B. Div. 225, 53 L.

(4) The school board has power to J. Mag. Cas. N. S. 182, 51 L. 1. N. S. make all reasonable rules governing the 791, 32 Week. Rep. 857, 15 Cox, C. C. conduct of pupils, even if the effect of 600, 48 J. P. 663, an action against a

such rules is to exercise control over teacher for assault and battery was sus- the pupil while under the parent's roof. tained. The teacher enforced a rule re

(5). The reasonableness of a rule quiring home study, by the detention of will be determined by the court in each a pupil beyond the regular hours of particular case; but, in general, the rule school in order to make up work which

laid down by the Iowa court, Burdick had been set as a home task, but which 2: Babcock, 31 Iowa, 562, will apply. the pupil's mother forbade her to per- reach within the schoolroom during

If the effects of acts done out of school form.

school hours, and are detrimental to good PLAYING FOOTBALL.

order and the best interests of the pupils, A rule forbidding pupils to play foot- it is evident that such acts may be forball in the name of the school was held | bidden." to be reasonable; and the suspension of

-B. B. Bassett.

“I give and devise unto my daughter

LANCASTER LAW REVIEW. in-law, Molly Sweigart, all my personal

property of whatsoever kind or nature Vol. XXXII.) FRIDAY, NOV. 13, 1914. [No. 2 the same may be as long as she remains

the widow of my late son Cyrus Swei

gart, deceased, her the said Molly SweiOrphans' Court. gart. To invest the same in some real

estate for a Home for herself and children so long as she remains the widow

as aforesaid, for her and the children to Estate of Catharine Sheaffer, deceased.

occupy the same to live together as they Wills Intestacy - IllegitimatesPre- deem proper. And immediately after the

now do, so long as they may devise or sumption of death of heirPrescrip- death of said widow, I order and direct tion.

my herein after named Executor, to sell A testatrix bequeathed her personal prop

or dispose the said real estate, by public erty to her daughter-in-law directing her to Vendue or outcry and out of the proceeds buy a home with it, to be sold after her thereof distribute the amount of the death and the amount she put in it distri: money invested in said real estate by the buted to her grandchildren, the children of her three illegitimate sons, two of whom

said widow from my estate but in case were dead and the third had disappeared five the said widow or her children can pay years before her death. She left no per- over to my said Executor, immediately sonal property but left real estate purchased after her decease said amount in the said shortly before her death, in which her daughter-in-law lived until she also died more than property to be and remain as the proptwenty-one years afterward.

erty of the said widow or her heirs and Held, that the testatrix having died intestate the amount so appropriated as aforesaid, as to her real estate, it yested in her son who I give and dispose of the same as follows, had disappeared, notwithstanding a presumption of his death may have since arisen, or

one third part thereof, I give and bein her daughter-in-law by prescription and in queath unto the children of Gabriel either case the grandchildren were not entitled | Young, to be equally divided amongst to partition Vested rights cannot be disturbed by legis- | three children of Jacob Grove, one third

them share and share alike, unto the lation ex post facto.

part thereof, namely unto Franklin, Rule to show cause why an inquisi- Mary intermarried with Richard Heilig, tion in partition should not be awarded. and Sarah, intermarried with Henry 0. C. of Lancaster Co. August Term, Hamaker, and to their heirs and assigns 1914, No. 50.

forever. And one third part thereof

uinto the four children of Cyrus SweiT. Roberts Appel, for rule.

gart, deceased to wit: unto Catharine in

termarried with John Steiner, Franklin, B. F. Davis, contra.

John and Jacob, to be equally divided November 5, 1914. Opinion by Smith, amongst them share and share alike, and P.J.

to their heirs and assigns forever.”

No personal property was there with This is a rule to show cause why an which to carry out the provision intended inquisition in partition should not be by the testatrix for her daughter-in-law, awarded.

Molly Sweigart. She, however, died Catharine Sheaffer left the following seized of the house and lot in which she will:

lived previous to her death, and which “ ist. I do order and direct that all was also the home of Molly Sweigart my just debts and funeral expenses be and her family. This property had been duly paid and satisfied as soon as con- bought by her on March 8, 1880. Her veniently can be done after my decease. death occurred on the 5th of August of And as to such worldly estate as it has the same year. Molly Sweigart conpleased God to intrust me with, I dis- tinued to occupy this house and lot until pose of the same as follows:

she died, which was about May 25, 1914.

Common Pleas-- Law .

She believed she had a right under the wealth v. Moir, 199 Pa., 534 (see page will to possession, and in this those who 560). would have been the remaindermen had The citation is refused and the rule is the property been bought by her as pro- dismissed at the cost of the petitioner. vided by the will concurred. Notwithstanding this prevailing belief, the testatrix died intestate as to this property, and it vested immediately upon her death in her heirs. She was the mother of three illegitimate sons-Jacob Groff, Cyrus Sweigart and Gabriel Young

Roth v. Tobias et al., The first two died before her, therefore no one inherited through either of them.

Promissory notes Accommodation en

dorsement Antecedent debt New Being natural children, under the Act of

consideration - Negotiable InstruApril 27, 1855, P. L. 368, which then controlled, neither could transmit any

ments Act of May 10, 1901, sec. 26. right from his mother, consequently the In an action against the endorsees upon a real estate vested in Gabriel Young. It promissory note of a corporation, endorsed by seems that he left Elizabethtown, where its directors and given to the plaintiff for an

antecedent debt while the corporation was all of them had lived, nearly five years waiting for a municipal franchise, thereby before his mother's death; that since procuring additional time for the corporation. then there may have arisen a presump- Held, that the advantage thus gained for tion that he has died does not alter the the corporation was sufficient new considerfact that it did not exist at the time of and they could not defend upon the ground

ation for the endorsements of the directors, his mother's death, and the burden is on that their endorsement had been without those who are disposed to contravert the consideration. vesting of the real estate in him to prove

The 26th section of the Negotiable Instru

ments Act considered. that he died before her.

Raken v. Henry, 16 Dist. R. 207, followed. It is claimed that by adverse possession for more than twenty-one years,

Motion for new trial. C. P. of LuMolly Sweigart had obtained title. If zerne Co. February Term, 1912, No. this cannot be sustained, the title, as far 183. as we now know, is in Gabriel Young.

H. W. Dunning, for plaintiff. If either had title, the partition proceedings are infeasible.

J. L. Lenahan and C. M. Bowman, for It was argued that the Acts of June 4,

defendants. 1897, P. L. 142; July 10, 1901, P. L. 639,

Opinion by STRAUSS, J. and March 26, 1903, P. L. 70, have enlarged the rights of illegitimates, making This is an action on a promissory note the petitioners heirs of their grand- of the Wilkes-Barre Light Company, mother, the decedent, and that by reason drawn to the order of its directors, of the repeated provision that the act among whom were J. B. Tobias and shall apply in “all cases, now pending, George A. Clark, who alone appeared at where the estate of such illegitimate or the trial and took defense upon matters its mother has not been actually paid to entirely personal to themselves. and received by collateral heirs or rela- The affidavit of defense in the case tives or the Commonwealth, as well as avers that the note had been given to to such cases happening after the passage E. F. Roth, the plaintiff, upon a cotemof this act,” makes it retroactive, and poraneous oral agreement that when the therefore the prayer of the petitioners same should fall due it might be renewed should not be denied. This case was not from time to time until after the franpending at the time of the passage of chise, for which the Wilkes-Barre Light any of these acts, and if it had been, no i Company was then applying, should be vested rights could be disturbed by this granted, and also that it had been agreed er post facto legislative provision. Nor- with the plaintiff prior to the execution man v. Heist, 5 W. & S., 171; Common- ' of the note that the goods and merchan

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