King's Estate.

supremacy. Otherwise, in rural districts, especially in this jurisdiction, the most substantial and competent members of families would be barred from administering estates, because of the prevalent custom by fathers of turning over the tenancy of their farms to their sons. Even assuming that the appellant is not highly equipped to meet the duties imposed on an administrator, of which there is no evidence, where lies the reason for expelling him? Admitting that he may owe a share of the crops to the intestate's estate, he will be obliged to account for that, the same as for any other asset of the estate. It appears that the appellant had settled with his father in his lifetime and owed him nothing at the time of his death. As to the increments which have accrued since the father's death, or which may accrue, the administrator has nothing to do: Cobel v. Cobel, 8 Pa. 342; Merkel's Estate, 131 Pa. 584; Morrison's Estate, 196 Pa. 80; Herron v. Stevenson, 259 Pa. 354; Bakes v. Reese, 150 Pa. 44; McCoy v. Scott, 2 Rawle, 222.

The appeal is sustained and the Register of Wills is directed to issue letters of administration on the estate of Alvin King to Lindley King.

From George Ross Eshleman, Lancaster Pa.

Denlinger v. Denlinger.

Deeds-Trusts and trustees-Irrevocable deed-Absence of fraud. Where a person by a voluntary deed of trust without power of revocation conveys all of his property, real and personal, to a trustee without any fraud, coercion or undue influence and with full knowledge of its contents and legal effect, and with a provision in the deed for the maintenance out of income of the settlor and his wife for life, and then over, the court will not set aside the deed at the instance of the settlor.

Bill for reconveyance of property. C. P. Lancaster Co., Equity Docket 7, page 115.

Charles W. Eaby, for plaintiff.

H. Frank Eshleman and I. C. Arnold, for defendant.

Findings of fact.

LANDIS, P. J., July 25, 1925.—On Oct. 2, 1922, Harry Denlinger, the plaintiff, in consideration of the sum of $1 "and for and in consideration of the acts, performances and purposes to be done and carried out by the second party," granted and transferred to the said Noah Denlinger, one of the defendants, "all his, the said first party's, real estate of every kind and description in said Paradise Township, said county and elsewhere, and whether in possession or otherwise, and also all his, the first party's, personal property and estate of every kind, including all cash, chattels, all mortgages, judgments, certificates of deposit, all certificates of stock of any corporation, and all manner of bonds, corporate, municipal, county, state or national, and all private corporations, and all evidences of moneys and rights outstanding, . . . in trust that he (the trustee) shall and do collect and take over all my said estate, real, personal and mixed, . . . and do cause the real estate to produce proper annual rent or income, and do cause all of any said personal property to produce interest, dividends, income and profits, and take, collect and get in said rents, interest, dividends, income and profits and keep my said real estate and personal property invested and reinvested at all times, and from time to time, as the said rents, interests, dividends, income and profits of every kind accrue, and, after deducting proper and lawful

...

Denlinger v. Denlinger.

taxes, repairs, insurance and expense of maintaining his trust, to pay out of the net rents, interest, income, dividends, proper support and maintenance of myself and my family as may be necessary in the wise and sound discretion of my said trustee and his successors, in trust, for and during the term of my natural life, and to see to it that I and they receive such benefit of the said rents, incomes, interest, profits, dividends and profits as shall be right and proper, at all times keeping in mind the size and nature of my estate, ... and if the said rents, incomes, dividends, interests, profits, etc., be not sufficient for the said purpose, then to use of and from the corpus of the same, real and personal, such amounts as in his wise and sound discretion may be necessary for the said objects." He also provided that, after his death, his trustee should collect all of his remaining estate, and, after paying his funeral expenses, &c., should pay one-third of the net balance to his wife and the remaining two-thirds to his children when they reach the age of twenty-one years, &c. No power of revocation was contained therein.

The plaintiff had, before the execution of this deed, been declared of weak mind, and a guardian was duly appointed over his person and estate by the Court of Common Pleas. He, however, recovered, and, under an order of the court, a reconveyance was made to him of his property. Some time after this was done, he was again threatened with the same trouble; but while he was yet in sound mind, his brother Noah, one of the defendants, at his request, notified H. Frank Eshleman, Esq., a member of this bar, to come down to his house to see him. The deed was prepared by Mr. Eshleman and he signed it. Mr. Eshleman testified that he read the whole of the deed over in his presence and asked him whether he understood it, and he replied that he did and that that was what he wanted. The plaintiff did not pretend that his mind was at all impaired at the time he executed the deed, but he testified that only a few of the sentences were read over to him and that he understood that when he recovered, his property was to be retransferred to him. It is admitted that, after the plaintiff signed the deed, he was taken to a sanitarium, where he remained for some time.

We find as a fact that there was no misreprestation made to him, either before or at the time he signed the deed; that it was fully read over to him; that he expressed his assent thereto; and that at that time he had a full knowledge of its contents. We, however, also find that, at the time this bill was filed, he was of sound and disposing mind and understanding.

Conclusions of law.

It is not alleged in the bill that there was any fraud or misrepresentations made by any one at the time the deed was executed. All that is claimed is that "the plaintiff was suffering from mental and physical disorders to such an extent that he was advised to relieve himself of all business cares until he had recovered from his ailments." It will be observed that even the name of the person who gave this advice is not mentioned in the bill. The sole question, therefore, raised is whether from the deed of trust itself it can be declared revocable. The property conveyed by the deed of trust, as stated in the findings of fact, was to be held and invested by the trustee for the proper support and maintenance of the said Harry Denlinger and his family during the term of his natural life, and at his death the net proceeds of the trust fund were to be divided, one-third to his wife and the remaining two-thirds to his children, and in case he should leave no children, then the same was to go in such manner as if he had died intestate.

Denlinger v. Denlinger.

In Potter v. Fidelity Insur. Co., 199 Pa. 360, Mr. Justice Fell, delivering the opinion of the court, said: "Generally, the cases in which voluntary settlements have been set aside have been-where there had been fraud or imposition in their procurement; where the design had been to give the settlor full enjoyment of his property for life, with power of testamentary disposition, and at the same time to protect it from his creditors; where the instrument was in itself and in connection with other instruments testamentary in character; where the intention to make the instrument revocable clearly appeared; where the purpose of the settlement had failed, or where the trust created was merely a naked one. The rule is that a voluntary settlement will be sustained and enforced in favor of the beneficiaries, unless it is shown that it was procured by fraud or imposition, or executed under a misapprehension of the facts or of the law."

In Kraft v. Neuffer, 202 Pa. 558, it was held that, "in the absence of exceptional circumstances, a voluntary deed of trust, containing no power of revocation, and reserving a life interest in the land to the settlor and his wife during their joint lives, and with remainder over to other persons, is irrevocable;" and in Wilson v. Anderson, 186 Pa. 531, that "if the intention of the grantor at the time he delivers a voluntary deed of trust is to part with the legal title, the trust will be enforced in favor of the beneficiaries, even though their enjoyment of the estate is postponed until the death of their benefactor." In this case the deed contained no power of revocation. By its terms, the legal estate at once vested in the trustee, with a power of alienation, subject to the approval of the settlor, but no power to convey by the settlor was reserved, nor, in case of conveyance of the whole or any part of the land, were the proceeds to pass to the control of the grantor; on the contrary, by its express terms, the subject of the trust was still to remain in the hands of the trustee for investment and reinvestment, to abide the purpose of the trust; there was an absolute vesting of the equitable estate in his brothers and sisters, subject only to his life enjoyment of the income.

In Stockett v. Ryan, 176 Pa. 71, it was held that “the findings of a Court of Common Pleas, sitting as a court of equity, that a deed of trust executed voluntarily, without any coercion or undue influence, with a full knowledge of its contents and the legal effect of it, by a man of intemperate habits, who was wasting and mismanaging his estate, and who executed it for the purpose of protecting himself and his estate from the consequences of his improvident and intemperate habits, making himself and his children the only beneficiaries, fully justified the decree dismissing the bill for the cancellation of the deed." In King v. York Trust Co., 278 Pa. 141, it was said: "The only ground upon which the revocation is asked, as stated in the bill, is that the settlor has become competent to care for his own property, which fact is found by the chancellor. This might sustain the decree if the deed contained a power of revocation, but it does not, and, being in equity, the relief granted must be confined to the pleadings as well as to the proofs."

Many authorities to the same effect, delivered by the appellate courts of this state, might be cited; but we think that the principles which are above set forth are conclusive as to this case. The deed containing no power of revocation, it having been executed voluntarily, without any coercion or undue influence, and with a full knowledge of its contents and its legal effect, and there being no fraud, we are of the opinion that we would not be warranted in setting it aside. For this reason, we are constrained to dismiss the bill. A decree to this effect may be prepared by counsel. Bill dismissed. From George Ross Eshleman, Lancaster Pa.

Lechner v. Greene et ux.

Bankruptcy-Tenants by entire ties-Execution on joint estate.

Where tenants by the entireties of both real and personal property are severally adjudicated bankrupts with a common trustee for each, an execution issued upon a joint judgment against both prior to their adjudication in bankruptcy is valid, and funds realized from the sale belong to the plaintiff in the execution and not to the trustee in bankruptcy.

Petition of trustee in bankruptcy for funds in hands of sheriff. C. P. Tioga Co., May T., 1925, Nos. 61 and 62.

Crichton & Owlett, for trustee in bankruptcy.

Rockwell & Rockwell, for execution plaintiff.

MARSH, P. J., Oct. 24, 1925.-The petition in this case involves the consideration of but one question — what is the effect upon personalty, jointly owned by husband and wife, of separate petitions in bankruptcy, upon which they are severally adjudicated bankrupt?

Percy A. Greene and his wife, Helen G. Greene, were the owners by entireties of a farm and of certain personal property. Frederick Lechner issued execution upon their joint obligation Feb. 23, 1925, and levied upon and sold both personal and real estate of the debtors.

The sheriff has in his hands the sum of $939.40, derived from the sale of the defendants' personal property. Of this amount, $11.50 was derived from the sale of property admitted to have been owned solely by Helen G. Greene. The residue, $927.90, was derived from the property owned jointly by husband and wife.

This residue is claimed by the plaintiff in the executions, Frederick C. Lechner, and by S. P. Hakes, the trustee in bankruptcy of each of the two bankrupts. If the personal property owned jointly by husband and wife, and listed by each of them in the separate petitions filed by them in bankruptcy as the individual property of the petitioner, belongs to the trustee for equal distribution to their creditors, then this petition should be allowed and the fund in the sheriff's hands should be turned over to the trustee.

No case has been cited, and we have found none, in which this precise question has been adjudicated. There are, however, cases where one of the holders of an estate by entireties has been adjudicated a bankrupt and the rights of a trustee of such holder have been adjudicated by our appellate courts.

While the estate by entireties continues, it is utterly impossible for either party, without the other joining, to sell or assign his or her interest therein, even the expectancy of survivorship.

Where a husband and wife hold an estate by entireties, their joint deed is sufficient to pass title in the land free from the effect of bankruptcy proceedings and judgments against the husband, and free from any contingent ownership by the trustee in bankruptcy, in the event of the husband surviving the wife: Beihl v. Martin, 236 Pa. 519. To the same effect may be cited Meyer's Estate, No. 2, 232 Pa. 95.

The acts relating to the property of married women do not alter the incidents of an estate by entireties, but since their passage a purchaser of the title of one acquires no right of possession during the life of the other. Neither can sell even the expectation of survivorship without the joinder of the other, nor can a valid title to the income or expectancy of survivorship of one be obtained by a sheriff's sale or under proceedings in bankruptcy: O'Malley v. O'Malley, 272 Pa. 528.

Lechner v. Greene et ux.

That the cases cited rule the case at bar we have no doubt. Percy A. Greene and Helen G. Greene filed separate petitions in bankruptcy, and only the circumstance that they have the same trustee gives even color to the claim that the petitioner in this case is entitled to the fund in the sheriff's hands. Had they gone into bankruptcy at different times, or had a different trustee been appointed for each upon their separate petitions, no possible question could arise. The difference in the situation presented by the appointment of

the same trustee is one that does not bear analysis.

An interest or estate which neither could separately sell, assign or create an obligation upon cannot be taken out of the rule governing entireties by a petition in bankruptcy.

And now, Oct. 24, 1925, in accordance with the foregoing opinion, it is ordered that the sheriff turn over to S. P. Hakes, trustee in bankruptcy of Helen G. Greene, $11.50, received by him from the sale of her individual personal estate, and that the remainder of the fund, less costs and proper charges against the same, be turned over to Frederick C. Lechner, the plaintiff in the writs of execution. From G. Mason Owlett, Wellsboro, Pa.

Ernst et al. v. Houser.

Negligence-Damages-Inadequate-Verdict-Father and son-New trial.

1. In an action by a father and son for injuries to the son, where the evidence shows substantial damages for both, and the jury returns a verdict of one dollar for the father and nothing for the son, a new trial will be ordered,

2. In such case, the verdict of one dollar for the father, however inadequate, convicts the defendant of negligence.

Motion for new trial. C. P. Schuylkill Co., July T., 1924, No. 497.

R. P. Swank, for plaintiff.

John F. Whalen, T. A. McCarthy and John B. McGurl, for defendant.

BERGER, J., Nov. 9, 1925.—This is an action of trespass to recover damages resulting from an automobile collision, alleged to have been caused by the defendant's negligence. The collision occurred June 20, 1923, while the automobile of Albert Ernst was being driven by his minor son, Jeremiah, and the plaintiff, Albert Ernst, has declared for damages in his own right and in the right of his minor son. The jury found a verdict in the sum of $1 for Albert Ernst in his own right, and in favor of the defendant on the claim for the minor son. The plaintiff has filed a motion for a new trial, assigning as his reasons: (1) That the verdict is against the law; (2) that it is against the evidence; (3) that it is against the weight of the evidence; and (4) that it is against the charge of the court.

The uncontradicted evidence submitted to establish the damages of Albert Ernst in his own right shows his loss to have been $269.12. The jury's award of $1, based upon this testimony, however inadequate it may appear to be, nevertheless, convicts the defendant of negligence. For the pain and suffering endured by Jeremiah Ernst, properly proved, the jury awarded nothing. He was entitled to some damages.

The verdict of the jury is inconsistent, and the damages awarded are inadequate. It was rendered in disregard of the evidence, and the law, and the charge of the court. A new trial is, therefore, granted. See Bradwell v. Railway Co., 139 Pa. 405, 413, 414; Hammaker v. Watts Township, 71 Pa. Superior Ct. 554, 558. Rule for a new trial is hereby made absolute.

From M. M. Burke, Shenandoah, Pa.