Smith's Estate. render of her life estate no one is injured. She gets nothing in place of it. It is purely a gift to the remaindermen. If she attempted to make a claim on the estate of her husband under the intestate laws, we can see very plainly how her claim, or rather her re-election, might be defeated, but when she makes no claim for anything and wishes to give up her life estate for nothing in return, we must say that we know of no law, either statute or common, that will prevent her from so doing. Of course, if these executors, as trustees, or by what name they may be designated, have rented the farm, they were acting as the agent or trustee of this widow, and when the life estate determines, mortgages, leases, &c., built upon it also must cease: 21 Corpus Juris, 971. When a widow declines to accept the provision for her contained in the will of her deceased husband, she takes the interest in his estate to which she is entitled under the intestate laws, and as to her there is no will. The remainder of the estate will then pass under the will as if the widow were dead. Any estate in the property to which she might have been entitled under the will ceases to exist. Devises or bequests contained in the will subordinate to a life estate in the widow and contingent upon her death or payment of which is postponed until then, become presently payable upon her election to take under the intestate laws. Devises and bequests in remainder, to take effect at the termination of the life interest of the widow created by the will, are accelerated and become immediately vested: Ferguson's Estate, 138 Pa. 208; Vance's Estate, 141 Pa. 201; Wyllner's Estate, 65 Pa. Superior Ct. 396. When a widow refuses to take under the will of her husband, she can take under the intestate laws, or when she surrenders the one she gets the other. But in the case at bar, when she surrenders her life estate she gets nothing, wherefore, we think, by a spirit of analogy, the principle as laid down in the above citations is applicable here. In this case the facts are not at all similar to a case where a widow has made her election and afterwards retracts and demands her share under the intestate laws, and cases like these are not applicable here. The case of Kidder v. Kidder, 33 Pa. 268, is cited to us as tending to support the reasons for dismissing the partition proceedings, but that was where a release of a debt was attempted without consideration. We do not think that case applies to the facts before us. We are, therefore, led to the conclusion that this widow parted with the life estate in the real estate of her deceased husband, and, therefore, so far as relates to this aspect of the case, the Orphans' Court has jurisdiction. This disposes of the first and second reasons. The third reason complains that the service of the citation was not lawfully made upon George A. Smith, one of the sons of the decedent, and upon The Sunbury Trust and Safe Deposit Company of Sunbury, as guardian of the minor children of David L. Smith, deceased, who was a son of the said decedent. Under recent legislation a citation must issue, directed to the parties in interest, requiring them to appear on a certain day and show cause why partition should not be awarded. The sheriff's return to the service of the citation in this case shows that it was personally served upon James H. Smith, Ira C. Smith, Adeline Smith, Lottie Smith, who is the widow of David L. Smith, deceased, and Lydia Knepp. Nothing can be said against the service upon these persons. The sheriff, however, returns that a true and attested copy of the petition for the citation and of the writ of partition was sent by registered mail to Smith's Estate. George A. Smith, a son, and to The Sunbury Trust and Safe Deposit Company, and that in each of these cases a return receipt was asked for. There is nothing on the return to indicate whether or not the return receipt was received, and the sheriff's return of service is conclusive. The Act of June 7, 1917, § 3, P. L. 337, 340, provides that "such citation shall be served in the manner provided by law for the service of other citations in the Orphans' Court." By reference being had to the Orphans' Court Act of June 7, 1917, § 17, subdivision "c," P. L. 363, we find the "manner of service shall be by giving a copy thereof to the respondent personally or by leaving such copy with some adult member of his family at his place of residence." And by sub-division “d” of the same section of the same act, we find that such service may be made anywhere within the Commonwealth of Pennsylvania. We fail to find any rule of court providing for this service by registered mail, and even if there was, the service must be made as is provided by the act of assembly, and the rule of court would need to yield to the provisions of the act. The service of the citation was legal as to all the parties named but George A. Smith and The Sunbury Trust and Safe Deposit Company. These latter two were not served as is provided by law, nor have they submitted themselves to the jurisdiction of this court, wherefore, they are not in court, although being residents of the Commonwealth whose places of residence are known. With this state of affairs existing, we must say the services of these two parties are fatally defective and these proceedings cannot go on. The fourth reason complains that the petition for the citation does not show on its face sufficient facts to give the court jurisdiction. In Danhouse's Estate, 130 Pa. 256, Mr. Chief Justice Paxson says: "The petition sets forth that 'Frederick Danhouse died on April 8, 1880, leaving to survive him Susan, his widow, and one child, to wit, John M. Danhouse.' This is a meagre statement of the ownership of land of which partition is to be made. The names of all the parties should not only be given, but there should be a positive averment that they are the only parties." The petition should name the collateral heirs of the estate of the testator and the parties entitled under the intestate laws: Leahey v. O'Connor, 281 Pa. 488, 495, and cases there cited. While the doctrine enunciated in this case may not be applicable here, we think it worth while to cite it in order to show to what a strictness the petitioner is held in drawing his petition. A petition for partition must aver definitely that there are no parties interested save those named in the petition: Kantner's Estate, 24 Pa. C. C. Reps. 310; Purcell v. Purcell, 9 Dist. R. 188. In the petition for the citation we have no averment that the persons therein named are all the parties in interest or that there are no other parties except those named. This should be shown: Smitham's Estate, 7 Schuyl. Legal Rec. 113; McLaughlin's Estate, 12 Schuyl. Legal Rec. 45. And we have no information concerning David L. Smith, when he died, whether he died testate or intestate, what interest his children may have in the estate of Ezra Smith, nor how many of them there are, nor their names nor ages respectively: Drum's Estate, 22 Pa. C. C. Reps. 551. We also think the petition should state whether or not there are any encumbrances on the land, and if so, their respective amounts and to whom due: Purcell v. Purcell, 9 Dist. R. 188. The provision of the testator in the third paragraph of his will, providing that after the death of his wife his property should be distributed share and Smith's Estate. share alike between his children, we think was made in contemplation of his wife holding her life estate during her life. It surely cannot be held to apply after her surrender of it, as then there would be no necessity for prolonging the distribution, and so far as she is concerned, after she has surrendered her life estate in relation to this farm, she is as dead. We have no evidence or proof that this widow surrendered her life estate for the purpose of assisting or validating the partition proceedings. We only know that she has surrendered it, and till the contrary is shown, we must accept it as her voluntary act. We have given the questions submitted to us some thought and research, from which we feel that we must sustain the third and fourth reasons why the proceedings should be dismissed, viz., in that legal service was not made upon all the parties in interest, and in that the petition is fatally defective, as we have herein indicated, wherefore the proceedings must fall. And now, to wit, Aug. 24, 1925, the rule is made absolute and the proceedings in partition are quashed without prejudice. A motion by plaintiff for a new trial was dismissed, after binding instructions to the jury to find for the defendant, where it appeared that plaintiff had entered suit de novo in the Common Pleas after the case had been tried and dismissed by an alderman, the proper practice being to appeal from the judgment of the alderman. Motion for new trial. C. P. Allegheny Co., Oct. T., 1923, No. 987. William H. Pratt, for plaintiff; William F. and C. S. Wise, for defendants. DREW, J., June 19, 1925.-This is a motion by plaintiff for a new trial, after binding instructions to the jury to find for the defendant. The plaintiff brought suit before an alderman for the cause of action now at issue in this case. A hearing was held, the parties and their witnesses were heard, the alderman found there was no cause of action and made this order: "And now, July 17, 1923, the case is dismissed and the costs of same being placed on the plaintiff." No appeal was taken, but, instead, plaintiff filed this case and wished to proceed de novo. Objection was made to this, and the jury was instructed to find for defendant. The judgment of a justice of the peace is final if not appealed from (Act of March 20, 1810, 5 Sm. Laws, 161). He has no authority to enter a judgment of non-suit. In the case at hand, the decision was against the plaintiff; the remedy was by appeal, which would have been an effectual remedy if injustice was done: Gould v. Crawford, 2 Pa. 89; Lawver v. Walls, 17 Pa. 75; Bowser & Co. v. Sharping, 43 Pa. Superior Ct. 353, and Passarelli v. Morello, 52 Pa. Superior Ct. 12. We think this action is barred, that no error was committed in so declaring at the trial, and that, therefore, there is no merit in the reasons assigned in support of this motion, for which reasons a new trial is refused. From William J. Aiken, Pittsburgh, Pa. Kennedy's Estate. Wills-Construction-Gift to several jointly or to the survivor or survivors of them. Under a gift of one-fifth of the income of a fund to A, one-fifth to B, one-fifth to C, one-fifth to D and one-fifth to A, B and C jointly, or the survivor or survivors of them, and if A, B or C shall die during the term of the trust, then the share of the one so dying to be paid to the children she may leave to survive her, with a direction that if she shall die leaving no children surviving her, her share shall be added to the shares of the other beneficiaries, the alternative limitation to take effect in case A. B or C shall die during the term of the trust, refers to the onefifth of the income given to each in severalty, and, on the death of one leaving a child, the interest of the one so dying in the one-fifth of the income given to the three jointly passes to the survivors to the exclusion of the child of the one so dying. Exceptions to adjudication. O. C. Phila. Co., July T., 1917, No. 448. The facts appear from the following extract from the adjudication of the Auditing Judge (VAN DUSEN, J.): "Frank G. Kennedy died July 14, 1916, leaving his last will, duly probated, whereby, after directing the payment of his debts and funeral expenses, he devised and bequeathed the residue of his estate in trust to pay the income to his wife during her life (she died June 5, 1921), and “5. (b) In trust, upon the death of my said wife to hold the corpus or principal of my said estate for the term of five years after my said wife's decease, and to pay the net income therefrom arising in equal parts or shares semi-annually as follows: One equal part thereof to my daughter Anna; one equal part thereof to my daughter Vida; one equal part thereof to my daughter Helen; one equal part thereof equally to and amongst the children of my daughter Myra; one equal part thereof to my daughter, Anna, Vida and Helen jointly, or the survivor or the survivors of them; and in case my said daughter Anna, my said daughter Vida or my said daughter Helen should die prior to the commencement of this trust, or should die during the term of the said trust, then, and in that event the share of any daughter so dying shall be paid to and amongst any child or children she may leave to survive her, but if any such daughter so dying should leave no children her surviving then I direct that the part or share of said daughter shall be added to the shares of the other beneficiaries herein mentioned in the same proportions, and under the same conditions as are herein provided for the original shares of income, and provided further, that if my said three daughters Anna, Vida and Helen or the survivor or survivors of them, by a joint writing under their hands and seals shall at any time within the said period of five years above mentioned, signify their belief that the said trust should end, and their desire that it should end, then it shall come to an end upon the execution of such writing, and the principal or corpus of the said estate shall be distributed as hereinafter provided. “'6. (c) In trust, upon the termination of the said trust either by the expiration of the term of five years above mentioned, or any sooner termination thereof, as above set forth, to distribute the corpus or principal of the said estate to the same persons and in the same shares or proportions as in paragraph (b) as provided for the distribution of the income.' "Vida Kennedy McClure died March 16, 1925, leaving one child. The question arises whether the share of the daughter so dying, which goes to her child, is only the share which she enjoyed alone, or also her part in the share given 'to my daughter, Anna, Vida and Helen jointly, or the survivor or the Kennedy's Estate. survivors of them.' That is to say, whether the share given to the three daughters is held as a joint tenancy with the common law incident of survivorship or as a tenancy in common. The Act of March 31, 1812, 5 Sm. Laws, 395, 2 Purd., 2031, provides: "If partition be not made between joint tenants, . . . the parts of those who died first shall not accrue to the survivors, but shall descend or pass by devise... and be considered to every other intent and purpose in the same manner as if such deceased joint tenants had been tenants in common.' "This applies to both real and personal estate; but it is perfectly well settled by the cases hereinafter cited, and others, that the right of survivorship is only abolished as a necessary incident to joint tenancy, and that an intent to the contrary manifested in an instrument creating the estate will be given effect. The leading case is Arnold v. Jack's Executors, 24 Pa. 57, in which the devise was to testator's brothers 'as joint tenants and to the survivors or survivor of them, and the heirs of said survivor; to be assignable by my said brothers, or their survivors, at any time, or in any manner they may think proper; provided the said brothers or their survivors shall all, or both, if one be dead, assent to such assignment; but the survivor of them may assign and convey, or devise at his pleasure.' "It was held that this was equivalent to a common-law joint tenancy. The court said: 'Had the testator merely given the estate to his brothers as joint tenants, it may be that the Act of 1812 would have excluded the right of survivorship. Had it been devised simply to the three, the survivors or survivor of them, it is probable that its true construction would have referred the time or survivorship to the death of the testator; but when we find that the devise is to the three brothers expressly as 'joint-tenants, and the survivors and survivor of them, and the heirs of said survivor, and that the right to transfer depends upon the assent of all, we cannot doubt but that the ultimate survivor was finally to be the recipient of the entire estate.'' "The same construction was given to the same will in an action dealing with personal estate, reported as Jack's Executors v. Arnold, 1 Grant, 405. The present case falls exactly within this decision. The will uses the same expressions-'jointly' being the equivalent of ‘as joint tenants,' and the further limitation to the 'survivors' being common to both. ... "The same result was reached in Percy v. Hurley, 24 Dist. R. 253 (C. P. No. 3), where the devise was to two daughters 'during their joint lives. . In case of death of either one, the house and all the household goods to be bequeathed to the surviving one;' and there was a gift to the other if one should marry, and provision for sale and equal division if both should marry. "I admit, however, the difficulty of reconciling Arnold v. Jack's Executors with McVey v. Latta, 4 W. N. C. 524, where it was held that a survivorship in the lifetime of the testator was meant by the words 'jointly and equally, or, if one should die, the survivor to hold the property in full;' and can only say that Arnold v. Jack seems to be the better conclusion. I cannot see any difference between the words 'and' and 'or' in these phrases, and do not find it necessary to substitute either one for the other. The present will says 'or;' the will in McVey v. Latta says 'or;' the will in Arnold v. Jack uses 'and' in one place and 'or' in two places. Knox, J., in the above quotation from his opinion, expresses his meaning without any conjunction. Whether the testator by the word 'survivors' is explaining the expression he first employed (Arnold v. Jack) or making a substitutionary gift (McVey v. Latta), he is speaking disjunctively, and 'or' is better than 'and,' though either will do. |