2. The amount or sum claimed to be | decided that "a mechanic may file his due, and the nature or kind of the work lien against the person who holds the done, or the kind and amount of mate- legal title when the work was comrials furnished, or both; and the time menced, and he is not bound to inquire when the materials were furnished, or further or take notice of any subsequent the work done, or both, as the case may conveyance of the property." It was also added, in the opinion: Doubtless he might have named the party owning the ground at the time of filing, but he was not bound to do so." be. 3. The locality of the structure or other improvements, with such description thereof as may be necessary for the purpose of identification, and a description of the real estate upon which the same is situate. These are the important features demanded by the Act of Assembly, so far as they apply to the present case, and an examination of the lien shows that each one of them is covered in the body of the lien. The real contention, however, is, that C. G. Engle is made defendant and is stated as the owner or reputed owner, whereas in truth, under the facts of the case, the claim should have been filed against Henry B. Hook, his vendor. It would, at first blush, seem as if this contention were correct; but a further examination leads me to the conclusion that the lien should not be stricken off on this account. In Jones v. Shawhan, 4 W. & S. 257, Gibson, Chief Justice, said: "Still, where the owner is himself the builder, the claim must be filed against him, as the person known to the creditor, and not his unknown successor in the title. Though a subsequent terre-tenant has intervened, the claim is necessarily to be filed against his predecessor." The learned judge, however, proceeds to say: "But as the claim is against the building instead of the person, and as the name is only a circumstance of description to specify the property and give notice to purchasers, entire accuracy in regard to the ownership may not be indispensable; the more so, as the statute expressly requires no more than the name of the reputed owner, and it might be sufficient to file it against the past, or the present one. It is certain, however, that the name of the owner when the building was commenced satisfies the requirement of the law." Holden v. Winslow, 19 Pa. 449. In Fourth Avenue Baptist Church v. Schreiner, 88 Pa. 124, it was Now, this was the law prior to the passage of the Act of 1901. Let us inquire whether there has been any material change or additional provision upon this subject. Section 24 of that Act pro vides: "Any person having an interest in the property described in the claim, whether existing at the time of the claimant's contract or acquired subsequently thereto, may, by agreement of the parties or by leave of the court, intervene as a party defendant and make defense thereto, with the same effect as if he had been originally named as a defendant in the claim filed. And the claimant may, by writing, filed at his costs, strike off the name of any defendant therein, and may substitute as a defendant, and issue a scire facias against, any person who may have acquired an interest as owner after the time of said contract, or who is the personal representative of an owner or contractor who has died, either before or after filing the claim, but such substitution shall always be without prejudice to any intervening rights." In Section 51, it is also stated that, "if the names of the owner and contractor be correctly stated and the description of the property be reasonably accurate, the claim shall be sufficient notice to the owner, purchaser and lien creditors, though it may have to be amended in other particulars." There would, therefore, seem to be no difficulty in correcting the objection here raised, if any error there be, for Henry B. Hook's name may be substituted as the defendant, and the point suggested is not based upon sufficient grounds to strike off the lien. The error into which the learned counsel for the petitioner has fallen seems to me to arise from a confusion between a contractor and a sub-contractor. It must be remembered that the original contrac tor under the agreement has filed this claim, and not a sub-contractor. In the later case, under the 8th section of the Act, as supplemented by the Act of March 24, 1909, P. L. 65, notice must be given at least one month before the claim is filed, and within three months after the last of his work was done or material furnished, if he has six months within which to file his claim, or fortyfive days thereafter, if he has but three months within which to file it. The re Eavenson v. Zollers, 6 Pa. C. C. R., 138. Brown v. Davis, 28 Pa. C. C. R., 524. Hall v. Rankin, 24 Pa. C. C. R., 654. Knight v. Wiltberger, 4 Yeates, 127. Animal Product Co. v. Westgate, 3 Pa. Jus. L. R., III. John B. Graybill, contra. June 21, 1919. Opinion by LANDIS, P. J. are set aside. quirements of the Act are declared to be the record in this case, that the same is As it is evident upon an inspection of mandatory, and, if not complied with, defective the exceptions are non-susare fatal to the lien. See Thompson v.tained and the proceedings of the justice Radell, 42 Sup. 105; Miller v. Fitz, 41 Sup. 582; Gohn v. Purple, Receiver, 29 LANC. LAW REVIEW, 137. I, however, find nothing in the Act which requires the original contractor to give notice of an intention to file a lien, and, therefore, the authorities which rule the question as to sub-contractors do not in such a case apply. For these reasons, I am of the opinion that the exceptions filed are not sufficient to warrant the striking off of the lien, and the rule to show cause is, therefore, discharged. Exceptions sustained and proceedings of justice set aside. Orphans' Court. Estate of Emanuel V. Gerhart. Residuary legacy - Mistaken omission of son. Where a testator who left five children, in giving the residue of his estate to his children omitted the name of one of them but in another paragraph referred to his remaindermen as his five children naming all of them, the one first omitted should partake in the distribution. Adjudication. O. C. of Lancaster County, June Term, 1905, No. 12. Appel & Appel, for accountant. Harry L. Raub, for legatees. May 22, 1919. By SMITH, P. J. With the death of Virginia Gerhart on the first day of April, 1919, who survived Lucia D. Gerhart, the trust estate created by Emanuel V. Gerhart, D. D., terminated. While the testator says, "I give and bequeath my said residuary es * * * * Distribution was decreed accordingly. Auditor Bant's Estate. Attachment Refusal of a tate in four equal shares to my children ", I the testator the balance thus found is naming William R. Gerhart, Robert awarded as of the estate and as directed Leighton Gerhart and the children of by the testator. Grace Gerhart Gaither, he omitted the name of his fourth child, Paul Gerhart. Later, however, in disposing of this same interest, in the event of the marriage of Virginia Gerhart whereby her life interest in the trust would have ceased, he declares the remaindermen to be his five children, including Virginia, naming each, among them his son Paul. It is apparent that the omission of the name Paul in the first clause referred to was an unintentional one, and that it was his intention to include him there is no doubt. If it was doubtful an interpretation of the will would be favored which conforms to the rules of inheritance. Malone v. Dobbins, 123 Pa. 296; Lehman, Appellant v. Lehman, 215 Pa. 344. witness to answer-Decedent's estate -Funeral expenses. A witness before an auditor was asked by an attorney for an heir as to the amount which an undertaker had paid to the witness's company for a coffin and other articles furnished for the burial of a decedent upon exceptions to the amount of the undertaker's claim against the estate. The witness refused to answer, claiming that the price paid was a trade secret, and that it was immaterial to the issue before the audHeld, that the The petitioner is inaccurate in schedul-itor what the prices were. ing the legatees as a brother and nephews and nieces. If this were true the fund would be subject to collateral inheritance tax. They are a son and grandchildren. The estate of Virginia Gerhart is not distributing, but that of her father, Emanuel V. Gerhart. The testator died May 6, 1904. 1. Margie Gaither. Gaither are: 2. Lydia Gaither Cope. 3. Paul Gerhart Gaither. Gerhart claim of privilege was not well taken, and as the undertaker's claim depended not only on what the goods which he furnished were the fact whether the funeral expenses bore a reasonably worth in themselves, but also on just, fair and reasonable proportion to the amount of the decedent's estate in connection with his station in life; that the testimony was proper and material for the auditor to hear. The witness was directed to answer. Interlocutory report asking for a ruling of the court upon certain questions propounded to a witness. Witness di Paul Gerhart died June 1, 1901, leav-rected to answer and in default thereof ing the following children: 1. R. L. Gerhart. 2. Mary Gerhart Taylor. 3. Margaret Gerhart Gipe. 4. Eleanor Gerhart Raub. 5. Richard R. Gerhart, a minor. 6. Paul Gerhart, a minor. attachment to be issued. Everett Kent, for the claimant. F. P. McCluskey, for the heirs. December 9, 1918. Opinion by STEWArt, P. J. William R. Gerhart died intestate August 6, 1906, leaving neither a widow nor issue. His vested interest in the estate, or legacy, descends to his brother An interlocutory report was presented and the children of a deceased brother by the auditor in above estate, and the and sister and is subject to collateral in-court was asked to rule upon the obheritance tax, which amounts to $19.55.jections noted in the record of the quesLess this tax the balance which in- tions asked the witness, Harold S. Vancludes the legacy to William R. Gerhart atta, to rule whether the said witness is $1544.09. As the brother and nephews shall or shall not answer the several and nieces of William R. Gerhart inherit questions asked of him as indicated upon from him rateably with the bequests by the record, which the witness refused to are apt not to require disclosure except in such cases and to such extent as may appear to be indispensable for the ascertainment of truth. More than this, in definition, can as yet hardly be ventured." We have examined all the cases cited by the learned counsel for the wit answer, whether he shall or shall not produce to counsel for the estate and counsel for legatees Exhibits A and B mentioned in said record, and to rule upon the request of counsel for certain legatees that an attachment issue against the said witness, the said Harold S. Vanatta." This practice is in accord withness, particularly the Pennsylvania cases that followed in Brophy's Estate, 3 W. N. C., 306; Bradley's Estate, 15 Philadelphia, 586; Coray v. Jenkins, 5 Lack. Jur., 242; Kelly's Contested Election, 200 Pa. St., 430; and Commonwealth v. Klein, 40 Pa. Super. Ct., 352. A brief was filed in behalf of the position taken by the witness, and we are satisfied from the record and from the brief that the witness and his counsel were not acting contumaciously or contemptuously, but upon a belief that the testimony sought to be elicited, was immaterial to the issue before the auditor, and that it was privileged because it related to a trade secret. Mr. Wigmore, in his valuable work on Evidence, in section 2201, discusses the matter of a privilege not to disclose certain facts which, for the lack of a better term, he calls "tradesecrets." He sums it up as follows: "Finally, even where the claimant of the privilege is not a party charged with fraud, no privilege of secrecy should be recognized if the rights of possibly innocent persons depend essentially or chiefly, for their ascertainment, upon the disclosure in question. In other words, the privilege should be conceded in those cases only where the disclosure of the facts by the particular channel of the witness in question is but a subordinate means of proof, relative to the other evidence available in the case; for without some such limitation the general principle cannot be enforced (ante sec. 2192) that testimonial duty to the community is paramount to private interests, and that no man is to be denied the enforcement of his rights merely because another possesses the facts without which the right cannot be ascertained and enforced." Again he says: "What the state of the law actually is would be difficult to declare precisely. It is clear that no absolute privilege for trade secrets is recognized. On the other hand, courts of Philadelphia v. McManes et al, 43 1 cases to the effect that the undertaker twice that sum, onehalf of which was As to this, I think the orruns the risk of being paid in full, or in stricken out. part, or not at all. In Hassock's Estate, phans' court was wrong; the deceased 5 Pa. Co. Ct. Rep., 19, an undertaker had a good estate, and no children, and presented claim which was reduced by the widow, who was entitled to one-half, the auditing judge. The court in banc wished to be liberal in honor of his memsustained it, and said: "It is claimed that ory; a handsome tombstone was erected the reduction of this bill works a great over a vault, in which the body was inhardship to the claimant, as he only fur- terred, and this was the principal article nished what was ordered. If this be so, of expense; I think it should be allowed. he has no one to blame but himself. But there is one article which should be There was enough in the facts and cir- rejected-I allude to a picture of the decumstances of this case to have put him ceased, painted after his death. If the on inquiry as to his compensation before widow desired a memorial of this kind, he rendered the service." In Bauman's she should pay for it herself, and keep it Estate, 19 Philadelphia, 98, a claim by an for her own satisfaction." That case undertaker, Judge Ashman said: "The was followed in Porter's Estate, 77 Pa. undertaker, whose claim against the es- St., 43, where Mr. Justice Sharswood tate is involved in these exceptions, is said: "This court has recognized the exentitled, perhaps, to sympathy. If he pense of a suitable tombstone over the chooses to borrow an incident from the grave of a decedent to be a legitimate annals of his own profession, he may de- item of credit in the accounts of an execscribe himself with some accuracy, as utor, even when no provision on the subsuspended, like the coffin of Mahomet, ject was made in the will of the testabetween heaven and earth; he has hon-tor." In this connection the opinion of ored the dead, who can give him no thanks, at the instance of the living, who will give him no pay. But he placed himIn self in this position by his own act." Cullen's Estate, 8 Pa. Super. Ct., 494, it was held: Only such sums will be allowed for funeral expenses as will bear a just, fair and reasonable proportion to the amount of the estate of the decedent and his station in life. Undertakers take the risk of the estate proving insolvent, in which case, as against creditors, the rule will be strictly enforced. Children, legatees, distributees and creditors all will be protected against exorbitant and rapacious bills for funeral expenses." And now, December 9, 1918, the witThe opinions of Judge Ahsman and Judge Hanna are both interesting read-ness, Harold S. Vanatta, is directed to ing. The above rule is applied more strictly where the estate is insolvent, yet it applies as affecting legatees and next of kin. Even where the executor or the administrator has made an express contract, if it has been an extravagant and improvident one, he can be surcharged. In the early case of M'Glinsey's Appeal, 14 S. & R., 64, the lower court disallowed half of the funeral expenses. Mr. "The Chief Justice Tilghman said: whole funeral expenses amounted to 66 Judge Hanna in Barclay's Estate, 2 W. answer the questions indicated in the accompanying record, and to produce the exhibits therein mentioned. In default thereof an attachment will be issued against him without further order. |