and conveyances convey, assign and Common Pleas--Equity. transfer to the plaintiff or its assigns, Wrightsville Hardware Co. vs. Assets Real ization Co. et al. (No. 2). Contract to sell property-Specific performance. Bill for specific performance. C. P. of Lancaster Co. Eq. Doc. No. 5, p. 421. (See 31 Law Review, 145.) The defendant's 28th request for findings of fact was as follows: 28. There is no proof that plaintiff, prior to August 15, 1912, gave notice to the Assets Realization Company or to Shaw or Carrington, of its alleged contract with Tisdale. Answer. We find this to be a fact." March 26, 1914. Opinion by HASSLER, P. J. On exceptions filed to the Findings of Fact and Conclusions of Law of the Court and the Decree nisi: 1. The exception filed by the plaintiff to the Court's answer to the defendant's 28th request for Findings of Fact is hereby sustained. 2. The exceptions filed by the defendants to the Opinion of the Court and the Findings of Fact and Conclusions of Law of the Court are hereby dismissed. 3. The exceptions filed by the defendants to the Decree nisi, entered in the case, are hereby dismissed. 4. Counsel for plaintiff will prepare final decree in conformity herewith. FINAL DECREE.-And now, March 26, 1914, this cause came on to be heard at the regular Argument Court, and was argued by counsel, and upon consideration thereof, it is ordered, adjudged and decreed as follows, namely: 1. That the preliminary injunction granted in this case restraining the defendants and each of them from granting, transferring, assigning or in any manner disposing of the property, real or personal, described in the bill of complaint be made permanent. 2. That the defendants by proper deeds. in fee simple, clear of all encumbrances, made by them or those under them, all the property, both real and personal, including the patents, of the Grey Iron Casting Company, as described in the plaintiff's bill in accordance with the provisions of the agreement with Kingsbury and Tisdale, except such materials and supplies, raw, wrought and finished goods as have been sold in the course of business. 3. That upon such conveyance the plaintiff pay to the defendants the balance of the purchase price of the Grey Iron Casting Company property, real and personal, viz., $31,500 with interest to March 6, 1913, viz., $1,081.43, making a total of $32,581.43, less the value of the materials and supplies, raw, wrought and finished goods sold thereout for the benefit of the Assets Realization Company since August 13, 1912, and also less the rental value of the real estate or profit of the business, whichever is the greater. The plaintiff will also pay the defendants the pro-rata share of the expense of maintaining a salesroom at 693 Broadway, New York City, from February 17, 1912, to August 13. 1912, and of the salary of the salesmen under contract prior to February 17, 1912, from February 17, 1912, to August 13, 1912, said expense to be ascertained as provided in the Court's 7th Conclusion of Law. 4. The defendants state an account showing the quantity of materials and supplies, raw, wrought and finished goods sold by the defendants or for their account out of the personal property of the Grey Iron Casting Company purchased on August 13, 1912, and the selling price and value of the same, and that unless the parties can agree upon the quantity and value of such supplies and material and goods so sold and the rental value of profits of said real estate. an assessor will be appointed to state such account. 5. That the defendants pay the costs of this suit. Tegal Miscellany. The Pennsylvania Bar Association. THE TWENTIETH ANNUAL MEETING. The twentieth annual meeting of the Pennsylvania Bar Association was held at the Hotel Lawrence, Erie, Pa., on June 30th, July 1st, and July 2nd; this being the only meeting held in a city except the fifth meeting which was held in Wilkes-Barre in 1899. The attendance was small, owing to the inconvenience in getting to Erie, the falling off in attendance being particularly noticeable among the ladies. It was found to be more difficult than at summer resorts to make the members attend the meetings, but some good work was accomplished, and the splendid hospitality of the Erie people made the session a very enjoyable one. The address of the president, Hon. Hampton L. Carson, on "The Evolution of the Independence of the Judiciary," was an eloquent and scholarly protest against certain modern theories. The annual address, an able and interesting paper, was delivered by Hon. George W. Wickersham on "Government by Administrative Commission," which he called "a democratic paradox," exhibiting a marked contrast to the prevailing current of democracy. The paper by T. Elliott Patherson, Esq., on "The Selection and Drawing of Jurors," was an able and convincing defense of the jury system, and the entertaining paper by Louis Richards, Esq., on "Jacob Rush and the Early Pennsylvania Judiciary," showed exhaustive historical research. The Committee on Law Reform, Hon. W. U. Hensel, chairman, recommended the enactment of an act forbidding the granting of new trials or setting aside of a judgment unless a party was injuriously affected by the error complained of; the re-enactment of an act vetoed by the governor, that admission to practice in the Supreme Court shall be conclusive in lower courts as to the learning and ability of the attorney; the enactment of an act doing away with notice to a terre tenant whose deed is not on record, and that the law of decedents' estates should be codified. These recommendations were adopted. After an hour's debate, a motion to recommend the repeal of the act which practically gives control of township roads to the State Highway Department and in favor of legislation which will put such control into the hands of supervisors, was tabled. The banquet was well attended and interesting speeches were delivered by the Governor, Judge Searle of Honesdale, Judge Robert W. Irwin of Washington, Wm. M. Hargest of Harrisburg, and U. P. Rossiter of Erie. Henry J. Steele, Esq., of Easton, was elected president, a very popular and well deserved selection, and among the vice-presidents elected was Wm. H. Keller, Esq., of Lancaster. Supreme Court of Pennsylvania. MODIFICATION AND CHANGES IN RULES 29 AND 31. And now, July 1, 1914, Rule 29 is amended by striking from paragraph thereof the following, "including any opinion of the court below filed in the case," and inserting as paragraph 9 the following: "9. Any opinion filed by the court below in the case "; and numbering the three subsequent paragraphs 10, 11 and 12, respectively. And now, July 1, 1914, Rule 31 is amended by striking from paragraph 12 thereof the following, "including any other opinion of the court below filed in the case," and changing paragraph 9 so as to read as follows: "9. Opinion of the court on the exceptions and the decree made, together with any other opinion of the court filed in the case." MAKE THE FOLLOWING THE LAST CLAUSE OF EQUITY RULE NO. 68: Such an opinion shall also be filed in all cases where a final decree is entered dismissing a bill or transferring the case. to the law side of the court. Brevities of a Barrister, Arthur M. Harris in the Docket. Carelessness has lost more professional reputations than unscrupulousness. The skillful lawyer first with the court, woos the jury, but marries the record. A cause is often won by what is not said. A sleeping juror may render a just verdict. Recipe for reversal: Let the judge try the case as well as hear it. Whom God hath joined never come into the divorce court. Legal metaphor: "Twelve good men and true." Epitaph for some lawyers: Incompetent, irrelevant, and immaterial. Cover v. Conestoga Traction Co. Affirmed. By MOSCHZISKER, J.: Yeager . Edison Electric Co. Affirmed. O. C. ADJUDICATIONS. By JUDGE SMITH: Annie B. Breen, city. Christian E. Peck, W. Donegal. Samuel S. Stauffer, Rapho Twp. Homer B. Summy, Manheim Boro. Thomas N. Wunder, Columbia. June 29, 1914. Mary C. Taggert, City. Eliza Ann Brubaker, New Holland. Mumma v. Mumma. Reversed. Fell, who temporarily resided in this city. C. J., and Brown, J., dissent. BY STEWART, J.: Weaver v. Consumers' Box-board & Paper Co. Affirmed. Monday, July 6, 1914. Annie P. Huber, City. Mary B. Wright, Stevenson Co., Ill. Emmaline Styer, Caernarvon. entry of judgment by the Court in favor LANCASTER LAW REVIEW. of the plaintiff and asks a bill of excep tions thereto. Bill of exceptions signed, VOL. XXXI.] FRIDAY, JULY 17, 1914. [No. 37 sealed and filed accordingly. Supreme Court. Rengier v. Kunzler. Wills-Construction-Devise of fee simple-Act of April 8, 1833, P. L. 250. A testator provided in his will as follows: "I bequeath to my wife Rebecca D. Rengier. My Whole Estate absolute at her death to do as she knows what I would want her to do. with my estate. I want my wife Rebecca D. Rengier. to be one of my executors. And my brother, John Steinman Rengier to be the other one. Everything is to go on the same as when Albert Rengier lived. unless the executors see other wise." Held, that the widow took a title in fee simple in the decedent's real estate under the Act of April 8, 1833. Appeal No. 165 of January Term, 1914, from judgment of C. P. of Lancaster County to April Term, 1914, No. 69, in favor of the plaintiff, Rebecca D. Rengier, and against the defendant, Christian Kunzler, on a case stated. The case stated was filed to determine whether the plaintiff could convey a feesimple title to land which had belonged to her husband. On appeal, the defendant assigned error as follows: CHAS. I. LANDIS, P. J.' 3. The learned Court below erred in not entering judgment in favor of the defendant in the Case Stated." J. R. Kinzer and Coyle & Keller, for appellant. by Anderson's Estate, 243 Pa., 34, and Subsequent conditions have frequently Martin v. Heckman, 25 Super. Ct., Dickinson's Estate, 209 Pa., 59. In the present will there can be but little doubt that it was the testator's desire as expressed in his entire will that his wife should have the full benefit (subject only to the control of his executors) of all his estate as long as she lived, and that at her death it should go, not to her heirs or next of kin, but to such persons as the testator had designated to his wife and whom she should 1. The learned Court below erred in holding that Rebecca D. Rengier, under the will of Albert S. Rengier, deceased, took an absolute estate in fee simple in the real estate of her said deceased hus-appoint by will. band. 2. The learned Court below erred in entering judgment in favor of plaintiff in the Case Stated for the sum of four thousand dollars ($4,000.00), as follows: Therefore, in accordance with the terms of the Case Stated, it is now directed that judgment shall be entered in favor of the plaintiff and against the defendant for the sum of $4,000. Judgment for plaintiff. Defendant's counsel excepts to the Much stress is laid by the Court below on the fact that there is no devise over after the life estate to the widow, but, as decided in Shower's Estate, 211 Pa., 297, under the language of a will, it may be immaterial that there is no gift over. T. Roberts Appel and Chas. G. Baker, for appellee. The said testator died without issue, his only child having pre-deceased him, unmarried and without issue. In construing a testamentary gift it must be assumed that the testator intended to confer a benefit; and this presumption is of weight in construing a devise to be a fee instead of a mere life estate. The doubt should be resolved in favor of a fee-simple devise. Jackson's Estate, 179 Pa., 77. The fact that the testator in disposing of his entire estate used the word "absolute" seems clearly to indicate exactly what he intended. Oswald v. Kopp, 26 Pa., 516. one. Everything is to go on the same as when Albert Rengier lived, unless the Executors see otherwise." It is provided by Section 9 of the Act of April 8th, 1833, P. L. 250, that "All devises of real estate shall pass the whole estate of the testator in the premises devised, although there be no words of inheritance or of perpetuity, unless it appear by a devise over, or by words of limitation, or otherwise, in the will, that the testator intended to devise a less estate." Under this section the devise was sufficient to pass the fee. There was no devise over or words of limitation that The discussion of the Court below is show an intent to devise a less estate. fully sustained by: Kinter v. Jenks, 44 Pa., 445. Snyder v. Baer, 144 Pa., 278. Good v. Fitchorn, 144 Pa., 287. Boyle v. Boyle, 152 Pa., 108. Kiefel v. Keppler, 173 Pa., 181. Gilchrist v. Empfield, 194 Pa., 397. Huber v. Hamilton, 211 Pa., 289. Witmer v. Delone, 225 Pa., 450. Hoxie v. Chamberlain, 225 Pa., 31. The testator intended to dispose of his entire estate; he was childless; his wife, the appellee, was the sole object of his bounty; there is no other person or persons named or referred to in the said will, excepting his brother, who was appointed co-executor with the widow. The language of the will is definite and specific. The words, after those appointing the executors, are mere surplusage. This case is clearly within the meaning of the Act of April 8, 1833, P. L. 250. July 1, 1914. PER CURIAM. This appeal is from a judgment entered for the plaintiff in a case stated to determine whether she had a feesimple title to land she had agreed to sell to the defendant. Her title was derived under the following clause of the will of her husband, Albert S. Rengier: "I bequeath to my wife, Rebecca D. Rengier, My Whole Estate absolute, at her death to do as she knows what I would want her to do with my estate. I want my wife, Rebecca D. Rengier, to be one of My Executors, and my brother, John Steinman Rengier, to be the other The desire of the testator that his wishes, expressed to his wife only, should be respected by her in her disposition of the estate, is without legal effect. The judgment is affirmed. Quarter Sessions. Commonwealth v. Locher. Pollution of streams-City sewers—Constitutional law-Act of May 1, 1909, Sec. 16, P. L. 353. The emptying of dye-stuffs and chemicals by a factory in a city into a stream which has been transformed into a city sewer is not a violation of Section 16 of the Act of May 1, 1909, P. L. 353. If there is a violation of the Act it is by the city and not by parties using the sewer. In order to sustain a conviction under Section 16 of the Act of May 1, 1909 the Commonwealth must prove that the substances put into the water are injurious and dangerous to fish. If putting any of the substances named in the water is declared to be unlawful for any reason other than because they were injurious and dangerous to fish, the section of the Act so declaring would be unconstitutional as not being expressed in the title under Sec. 3. Article 3 of the Constitution, as the general purpose of the Act declared in the title is the protection of fish. If the title of the Act of May 1, 1909 could be construed to give notice of an intention to prohibit the pollution of waters independent of the protection of fish the Act would be unconstitutional as containing two subjects. |