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Carden et al. v. Kellerman et al.

case and the defendant, David Kellerman, relative to a certain business transaction. That during the course of the conference between plaintiffs and David Kellerman, one of the defendants, David Kellerman, the defendant, was threatened with arrest by the plaintiffs in this case and was forced, under threats of immediate arrest in New York City, a place in which he was a total stranger, unless he would execute the alleged instrument, shown as Exhibit 'A' of plaintiffs' statement of claim.

"Fifth. The defendant, David Kellerman, would not have executed the instrument set forth as Exhibit 'A' in plaintiffs' statement of claim had it not been for the threats, intimidations and fear of bodily harm of the plaintiffs and under the duress to which the plaintiffs subjected him."

It certainly does not require an extended discussion of this question of duress, as alleged in the paragraph just quoted, to come to the conclusion that if there was duress in obtaining the signature to this note, the defendant has not pleaded it. The duress is simply the bald assertion that the defendant, Kellerman, was threatened with arrest. We do not know whether it was arrest on a criminal information or arrest on a civil process. We do not know what the circumstances surrounding this altercation relative to some business transaction was. He says he was forced, but does not say what he was forced to do. There are no facts in this case alleged, except the one simple statement that he was threatened with arrest. That is not sufficient.

There is no occasion for the extensive citation of cases upon this subject. The case of Fulton v. Hood, 34 Pa. 365, and the two cases of Sulzner v. Cappeau-Lemley & Miller Co., 234 Pa. 162, and 238 Pa. 547, rule this case, and an examination of those cases will completely justify the entry of judgment for plaintiffs. It seems hardly necessary to state that the allegation that the note was given without consideration is not an allegation of fact, but a conclusion of law, and has, therefore, no place in an affidavit of defence. Rule absolute.

From William J. Aiken, Pittsburgh, Pa.

C. Trevor Dunham, Inc., v. Maloney et al.

Judgment-Rule to strike off-Irregularity-Record.

1. A judgment will not be stricken from the record except for some irregularity appearing upon the face of the record.

2. Where a negotiable judgment note, given at the time a lease of an automobile was executed, contains a warrant of attorney for the confession of judgment against the maker "in favor of the lessor or any subsequent holder," and a subsequent holder enters judgment, such judgment is regular on its face and will not be stricken off.

3. In such case, if there is a dispute as to the nature of the lease, a rule to open judgment is the proper practice.

4. On a rule to strike off a judgment, payment cannot be considered. Rule to strike off judgment. C. P. Columbia Co., Sept. T., 1925, No. 155. Edward J. Flynn and M. A. Kilker, for rule.

H. G. Teel and H. Mont. Smith, contra.

POTTER, P. J., 17th judicial district, specially presiding, Sept. 12, 1925.— This is a rule to show cause why the above stated judgment should not be stricken from the records. At the outset, we deem it proper to say that a judgment will not be stricken from the records except for some irregularity appearing upon the face of the record: Hall v. West Chester Pub. Co., 180 Pa. 561; O'Hara v. Baum, 82 Pa. 416; Bredden v. Gilliland, 67 Pa. 34. This

C. Trevor Dunham, Inc., v. Maloney et al. principle of law is so elementary that a citation of authorities to sustain it seems like surplusage.

In this case a judgment exemption note, under seal, was signed by Thomas Maloney, the principal defendant, in the sum of $1762.66, dated March 9, 1925, payable to Kreisher Auto Sales, who endorsed it over to C. Trevor Dunham, the plaintiff herein. Among other things, the note provides for a confession of judgment against the maker "in favor of the lessor or any subsequent holder hereof."

We cannot discover any irregularity upon the face of the record, and the petitioner has failed to point out any in argument which would be cognizable in this proceeding. There is a warrant of attorney for the confession of judgment against the defendant in favor of the plaintiff "or any subsequent holder.” Dunham is a subsequent holder or owner of the note, which is negotiable, so Dunham steps into the place of the Kreisher Auto Sales, the original payee.

A lease was executed at the time of the transaction, which was regarded by the parties as a lease of an automobile, which was also signed by Maloney. The construction of this lease, or by what name it may be designated, is not before us. All that concerns this rule is whether or not this judgment should be stricken off. If the merits of the judgment are to be gone into, the rule should have been to open it. The case of Bank of Secured Savings v. Rudolph et al., 83 Pa. Superior Ct. 439, has been cited to us by the petitioner. That was a case to try title to personal property by interpleader proceedings, which we do not have here, where the merits of the case could be gone into. We do not think it applicable. In that case the question arose whether the paper was a bailment or a conditional sale, which we do not have before us in this proceeding. That case embraced matters outside the record, which we cannot do.

The petitioner takes the position that, as this note was endorsed by the Kreisher Auto Sales to C. Trevor Dunham, no judgment could be entered against this defendant because the plaintiff was not a party originally to the note; that the original plaintiff, the Kreisher Auto Sales, is the only party who could enter judgment on it, and not being entered by them, but by a new owner, the judgment is void and should be stricken off; that there is no warrant or authorization for the entry of judgment by the assignee of the note. The case of Ahern et al. v. Standard Realty Co., 267 Pa. 404, in which case Stewart v. Lawson, 181 Pa. 549, is cited, is cited tending to sustain this position.

In the cases just cited the defendants changed by an assignment, and the assignee had not signed the instrument on which judgment was entered, and not having authorized a confession of judgment, of course, none could be entered, while in the case at bar the plaintiff is changed by assignment and the defendant remains the same, the same person who had originally signed the note authorizing the confession of judgment, and we fail to see why judgment could not be entered against him by the new plaintiff. The cases cited are not at all similar to the one under consideration. In fact, they are just the reverse. Payment is also set up as a defence, which we cannot consider in this proceeding.

We are disposed to think that the petitioner has mistaken his remedy, which should be a rule to open the judgment, when he would have full opportunity to present the defences he alleges.

And now, to wit, Sept. 12, 1925, the rule to strike off the judgment is discharged, to which an exception is noted for the petitioner and a bill is sealed. From Charles P. Ulrich, Selinsgrove, Pa

Bonsall's Estate.

Wills-Construction Gifts over to lineal descendants according to the intestate laws, etc.-Act of June 29, 1923.

1. Under the Act of June 29, 1923, P. L. 914, which provides that a limitation over, to take effect on the termination of an estate for years or for life or upon breach of condition, "to the testator's heirs or next of kin or the persons thereunto entitled under the intestate laws or other similar or equivalent phrase," shall be construed as meaning the person or persons thereunto entitled at the time of the termination of the estate for years, for life or upon condition as they shall exist at the time of such termination, as distinguished from the persons who answer the description at the time of testator's death, a gift over to "my lineal descendants according to the intestate laws of the State of Pennsylvania" vests in those who answer the description at the death of the life-tenant.

2. The words "my lineal descendants according to the intestate laws," etc., constitute a "similar or equivalent phrase" within the meaning of the act.

3. The act supplies a new canon of statutory construction and reverses the old established presumption of the testator's intention.

VAN DUSEN, J., dissents.

Exceptions to adjudication. O. C. Phila. Co., July T., 1925, No. 2152.

By a codicil to her will, the testatrix, who died Nov. 23, 1924, directed that if the life beneficiary under a trust created by the codicil "shall die without leaving child or children surviving or children of deceased child or children, then and in such case the principal monies of said trust fund shall go to and vest in my lineal descendants according to the intestate laws of the State of Pennsylvania." The beneficiary did so die, upon which the question arose on the audit of the account of the trustees whether the lineal descendants were to be ascertained as of the date of the death of the testatrix or of that of the beneficiary. The Auditing Judge, Lamorelle, P. J., held that the Act of June 29, 1923, P. L. 914, did not apply, and the persons who answer the description in the gift were to be ascertained as of the date of the death of the testatrix. To this ruling exceptions were filed.

Saul, Ewing, Remick & Saul, for exceptant.

Alexander M. De Haven and Theodore F. Jenkins, contra.

GEST, J., April 17, 1926.-Irrespective of the application of the recent Act of Assembly, approved June 29, 1923, P. L. 914, we would agree with the adjudication of the Auditing Judge and would not find it necessary to add anything to what he has said. The important question in this case, however, is whether the Act of 1923 applies to it, and this requires us to construe the language of the act concerning wills providing that upon the termination of the prior estate for life "the remainder over shall vest in the testator's heirs or next of kin or the persons thereunto entitled under the intestate laws or other similar or equivalent phrase." Under the settled construction theretofore given by the courts of this State to such a limitation, the period at which the heirs, etc., should be ascertained has always been referred to the date of the testator's death and not to the date of distribution upon the termination of the life estate, in the absence, of course, of anything else in the will that leads to a contrary interpretation. This act supplies a new canon of statutory construction and reverses the old established presumption of the testator's intention.

The Auditing Judge, however, was of the opinion that the act did not apply to this will because the remainder therein is given, not to the testator's heirs, or next of kin, or the persons entitled under the intestate laws, but to "lineal descendants according to the intestate laws of the State of Pennsylvania,” and this is not an equivalent phrase to those mentioned in the statute.

Bonsall's Estate.

This may be conceded. Heirs, or next of kin, or the persons entitled under the intestate laws are not necessarily lineal descendants, so that the phrase is not equivalent, but the statute says "similar or equivalent," and the question narrows down to this: Is not the phrase "my lineal descendants according to the intestate laws of the State of Pennsylvania" a similar phrase to those specified in the statute?

The purpose of the act of assembly seems to us to be quite apparent. The effect of the old rule was that in many cases the heirs, next of kin et al., who took vested remainders as of the testator's death, died long before the termination of the prior life estate, which had the frequent effect of diverting the testator's estate to persons who were not, by reason of intermediate devolutions, his heirs, next of kin or persons entitled under the intestate laws to his property, or members of his family.

That this result would follow in the present case is apparent, since, if the descendants of the testatrix are to be ascertained at the time of her decease, Florence B. De Haven, a granddaughter, would take a vested estate, and as she died intestate, her interest in her grandmother's estate would, subject to her debts, pass to her father and husband.

Some tangible meaning must be given to the word "similar" in order to accomplish the evident purpose of the act, which says "similar or equivalent," thus excluding the interpretation that "similar" means the same as “equivalent;" and that "descendants" are similar to the other classes named of heirs, next of kin and persons entitled under the intestate laws, is, in our opinion, reasonably clear. The provision in the will that the trust estate should vest in lineal descendants according to the intestate laws may merely indicate, as the Auditing Judge points out, the proportionate shares which the lineal descendants shall take, and in the present case that David and Julia McFarland take between them the share their mother would have taken if living. The reference to the intestate laws might, however, be given a somewhat broader meaning, and "lineal descendants according to the intestate laws” is even more similar to "persons entitled under the intestate laws" than the words "lineal descendants" would be standing alone.

It is urged that if the descendants are to be ascertained as of the death of the life-tenant, an intestacy might result in many cases, for there might be no lineal descendants living, as all might die before the death of the life-tenants. In such a case, the intestacy would necessarily relate back to the death of the testator and the estate would then be distributable under the intestate laws. We do not think that the argument has any force against the construction which we would give to the act which, in the present case, and in the present circumstances, designates lineal descendants now living as the remainderman in the first instance.

The exceptions are sustained and distribution is awarded in accordance with this opinion.

VAN DUSEN, J., dissenting.-The expressions "heirs or next of kin or the persons thereunto entitled under the intestate laws" are equivalent to one another and refer to the intestate laws alone for ascertainment of persons and shares. The class is general, embracing all blood relatives. The intestate laws arrange these persons in the order in which a testator would naturally arrange them; and the statute assumes, I think correctly, that the application of these laws as of the date of the end of the life estate will best carry out the intention of the testator.

This does not remain true when we are dealing with a limited class under the intestate laws. When the testator gives to a limited class he is thinking

Bonsall's Estate.

of the circumstances as they exist at or about the time of his death. These circumstances may have changed materially at the end of the life estate, and a distribution among the class as it then exists may depart very far from what the testator would wish. For example, suppose there was a gift to children or brothers and sisters. The children of any of them who might die during the life estate would be excluded. It is otherwise where we are applying the intestate laws generally, for there representation steps in and carries out what would be the testator's natural wish. It does not seem to me that any phrase is similar to those used in the statute except one which embraces all persons who may be entitled under the intestate laws.

I would dismiss the exceptions.
LAMORELLE, P. J., did not sit.

Moore v. Moore.

Divorce-Cruel and barbarous treatment and indignities-CondonationRevival of cause of action by subsequent cruelty-Proceedings on original libel.

1. Where a wife files a libel in divorce upon the ground of cruel and barbarous treatment and indignities to her person, and thereafter becomese reconciled to her husband and returns to him with the intention of giving him another chance, instructing her attorney to drop the case temporarily, the condonation is conditional upon his future good behavior, and upon his again giving her ground for divorce for cruel and barbarous treatment and indignities to her person, she may proceed with the action already commenced.

2. Condonation of the violation of the marital duties and obligations being conditional upon the future good conduct of the offending spouse, a subsequent offence on his or her part revokes and nullifies the condonation and revives the original offence as a cause of action.

Freeston v. Freeston, 23 Dist. R. 219, overruled.

Exceptions to report of master in divorce. C. P. No. 5, Phila. Co., June T., 1921, No. 5720.

Jesse Finn, for plaintiff; P.P., for defendant.

SMITH, J., April 9, 1926.-The causes of action in this case are (a) cruel and barbarous treatment, and (b) indignities to the person.

The libellant and respondent were married on Sept. 15, 1920. On Dec. 3, 1920, they separated. The libellant went away and did not return until Jan. 23, 1921. On May 13, 1921, the libellant again left the respondent and did not return until March 13, 1922. On May 5, 1922, the libellant finally left the respondent.

The evidence discloses that from the time of the marriage the libellant was employed; that the first time she left the respondent it was due to the fact that he threatened to kill her; that after her first return he struck her and continually threatened her with a revolver; that he also strangled her.

The libellant, on July 20, 1921, executed her libel, which was filed the same day, but shortly afterwards she agreed to give the respondent another chance and instructed her counsel to drop the case temporarily. She returned to the respondent March 13, 1922, and continued to live with him, with the exception of a few weeks when she was ill, until May, 1922.

The testimony is to the effect that during the last time they lived together the respondent continued to treat her badly, cursing her, calling her names, threatened her with a revolver on many occasions, choked her several times, and that, as a result thereof, she became nervous and ill, and on May 5, 1922,

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