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the goods were delivered, and that the defendant now has them boxed up, the same as they were when he first received them; but, he says, the arrangement for the purchase was entered into with one, Alfred Howell, plaintiff's salesman; that it was evening when the agreement was made; that the print was fine, and he was in a hurry to go away, and, therefore, "did not read the agreement." He does not deny that he signed

it.

It has been decided that such an excuse cannot avail. In Lett v. Kunkle & Wilson, 178 Pa., 273, the Court held that, in an action upon a promissory note, it is proper to give binding instructions for the plaintiff, the payee, where the only evidence for the defendants is, that the note was signed without reading, under the impression that it was a receipt for horses to be sold upon commission;" and in Ziegler v. McFarland et al., 147 Pa., 607, that an affidavit of defense to an action on a promissory note, which avers that the maker signed the note with the understanding that it was a mere matter of form, and not an obligation to pay money, but only an undertaking to furnish a horse, is insufficient." See, also, Clarke v. Allen, 132 Pa., 40.

The defendant, however, in addition, asserts that the plaintiff's agent agreed to put up the plant, and that his guarantee was, that it was to act or operate satisfactorily before it was to be paid for. This averment, of course, directly contradicts the signed writing. To quote again from that paper: "This order shall become a contract between the purchaser and the Company upon acceptance thereof, ...; it being understood that this instrument, upon such acceptance, covers all the agreements between the purchaser and the Company, and that no agent or representative of the Company has made any statements or verbal agreements modifying or adding to the terms and conditions herein set forth." Under the defendant's claim, the agreement set forth in the written paper is not the agreement of the parties; the agent has made verbal agreements modifying and adding to the terms and con

ditions of that instrument; and, in fact, the writing is of little account, if that contention is to be sustained. In Martin and Monroe v. Berens, 67 Pa., 459, Mr. Justice Williams said that, "where parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only, evidence of their agreement, and we are not disposed to relax the rule. It has been found to be a wholesome one, and now, that parties are allowed to testify in their own behalf, the necessity of adhering strictly to it is all the more imperative." In First National Bank of Mahanoy City v. Dick, 22 Sup., 445. Smith, J., said that, “while, under certain welldefined conditions, a written instrument may be reformed by parol evidence, this is only as to matters omitted through fraud, accident or mistake, since the purpose of reformation is, to mould the contract in conformity with the intention of the parties. It does not extend to matters which the parties have designedly omitted. Nor can the legal effect of a written instrument be defeated by a contemporaneous parol provision in absolute contradiction of its essential terms. Revocation is not reformation. A written contract must be sustained, against a parol stipulation, purposely omitted, which is in effect a rescission: Martin v. Berens, 67 Pa., 459; Commercial Nat. Bank v. Henninger, 105 Pa., 496; Clarke v. Allen, 132 Pa., 40; Ziegler v. McFarland, 147 Pa., 607; Union Storage Co. v. Speck, 194 Pa., 126." In S. Morgan Smith Company v. Monroe County Water Power & Supply Company, 221 Pa., 165, it was held that, “in an action on a promissory note given in part payment for machinery sold under a written contract, an affidavit of defense is insufficient to prevent judgment, which sets up a parol representation or warranty by plaintiff's agent, in contradiction of the express warranty contained in the contract, without any allegation that the representation or warranty was omitted from the contract by fraud, accident or mistake." In that case, there was a provision somewhat similar to that contained in the present

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writing, and it read as follows: "The ! foregoing is the agreement between the said parties as it exists at this date, and it is agreed and distinctly understood that all previous communications between the said parties, either verbal or written, contrary to the provisions hereof, are hereby withdrawn and annulled; and that no modification of this agreement shall be binding upon the parties hereto, or either of them, unless such modification shall be in writing, duly accepted by the purchaser and approved by an executive officer of the S. Morgan Smith Company." In Express Publishing Company v. The Aldine Press, 126 Pa., 347, it appeared that a written order for work to be done contained a notice that it was subject to acceptance in New York City on the face, as written," and that no one was authorized to change, modify or in any way affect the writing by verbal agreement or otherwise. It was held that "an offer of parol evidence, which does not propose to show a contemporaneous parol agreement which induced the party of fering the evidence to sign such order, but simply the declaration of an agent made when the order was signed, is not admissible." In Appleby v. Barrett, 28 Sup., 349, it was held that," in an action upon a promissory note, an affidavit of defense is insufficient which sets up that the note was to be paid only out of profits of a business in which the plaintiff and defendant were to engage, without any averment of fraud or mistake."

I am, therefore, of the opinion that the defendant has not presented a sufficient defense to the suit, and, for this reason, the rule is made absolute, and judgment is now entered in favor of the plaintiff and against the defendant for the sum of $167.88.

Rule made absolute, and judgment for plaintiff and against defendant for $167.88.

Orphans' Court.

Decedents' Decedents'

Stevenson's Estate.

a

estates-Exemption-Child -Act of April 14, 1851, P. L., 612. widower, not dependent upon him, but together A married daughter of a decedent, with her husband maintaining the family relation with him, may recover the exemption given to a widow or child under the Act of April 14, 1851, P. L. 612.

Claim for exemption. O. C. of Allegheny Co. May Term, 1913, No. 202. Dunn & Moorhead, for petitioner. Langfitt & McIntosh, for respondent. July 26, 1913. TRIMBLE, J.

Robert Stevenson died on May 1, 1912; his daughter, Margaret S. Flinn, proceeding under the forms of law, claimed a child's exemption on May 8, 1913, under the Act of April 14, 1851, P. L., 612. A citation was awarded to all parties interested and an answer was filed by some of the heirs. Testimony was taken, and from this we find the following facts:

The decedent was within a few days of seventy-four years of age when he died. His daughter, Margaret, the claimant, was then married and, together with her husband, lived in the home provided by the father. The family relation was maintained by these parties until the date of the father's death. Mr. Stevenson had been married twice and had children from both marriages; he was a widower when he died. The claimant is a child of the second marriage. None of the decedent's other children or grandchildren lived with their father or grandfather for a long time. prior to the decedent's death. Shortly before he died he gave up his regular employment and for a considerable time had been suffering from rheumatism and some affection of the eyes. The daughter was not dependent upon her father; the testimony shows that she could have gotten along without her father's aid, but that her father could not have gotten along without his daughter's assistance.

The question involved in this proceed- | ing is whether a married daughter of the decedent, a widower, not dependent upon him, but together with her husband maintaining the family relation with. him, may recover the exemption given to a widow or child under Sec. 5 of the Act of April 14, 1851, P. L., 612? The provision of the act is as follows:

"The widow or the children of any decedent dying within this commonwealth, testate or intestate, may retain either real or personal property belonging to said estate to the value of $300 and the same shall not be sold, but suffered to remain for the use of the widow and family. . . .”

The history of exemptions for widows and children is set forth in the case of Hettrick v. Hettrick, 55 Pa., 290, from which case we get the legal principle now in force in Pennsylvania that the right to the exemption is established when a continued family relation is sustained. On page 294 of this opinion, it is said, "The acts contemplate the case of a wife who lives with her husband till his death and faithfully performs all her duties to his family." It is clearly decided in this case that when the family relation is maintained the exemption is to be allowed. This is true as well of an adult daughter, where the mother is not living and when the daughter maintained the family relation for her father. Barr's Appeal, I Mona., 764. In that case it is said: "The act fixes no age or circumstances which shall deprive the children of a right so to claim." But this claimant was married and not dependent upon her father and there is no appellate decision which sustains any claim of this character. The correct view of the act is set forth in the opinion of Judge Penrose in Palethorp's Est., 14 Pa. C. C., 286, as follows:

"The acts of assembly which confer upon the widow of a decedent her right to exemption are not dependent for their operation upon her necessities. She may have unlimited means of her own, her husband's will may make the most ample | provision for her support; but whether he die testate or intestate, solvent or insolvent, rich or poor, is immaterial.

What the Act of April 14, 1851, says is, The widow or children of any decedent dying within this commonwealth, testate or intestate, may retain,' etc."

In Lane's Est., 6 D. R., 618, decided by Judge Stewart, it was held that the criterion for recovery by an adult daughter is not dependence but the maintenance of the family and residence with the testator. If it is the law that a widow who is financially independent of her husband may retain the exempted property when she has maintained the family relation with her husband, then the only reasonable construction of the act is to say that a daughter may likewise retain it when she is independent of her father, if she maintains the family residence and relation with him, even though she may be married.

Sherwood's Estate.

Decedents' estates Presumption of death from absence-Construction of Act of June 24, 1885-Payment without refunding bond.

and unheard of for about forty years, and the Where a supposed decedent has been absent fund belonging to his estate has remained under the control of the court upwards of eight years, the court may direct the fund to quiring security to refund in case the supbe paid to the distributees without first reposed decedent shall in fact be at the time alive, as provided by section 5 of the Act of June 24, 1885, P. L. 155.

Rule to show cause why principal of supposed decedent's estate could not be paid distributees without requiring security to refund, etc. O. C. of Bucks Co. Isaac J. Vanartsdalen, for rule. Gilkeson & James, contra.

January 6, 1913. Opinion by RYAN, P. J.

An auditor duly appointed by this court to make distribution of the estate of Henry F. Sherwood, a supposed decedent, having found that the said Henry F. Sherwood, on January 30, 1880, had been absent from his domicile and unheard of for more than seven years, and that a presumption of his death had then arisen, distributed the share of the said

Henry F. Sherwood in the estate of his mother, Isabella H. Sherwood, deceased, to the petitioner, the supposed decedent's sister, and to the assignee of his brother, in equal proportions. The auditor also adjudged that under the provisions of the Act of June 24, 1885, P. L., 155, each distributee, before said shares were paid, should enter into the security prescribed. The petitioner has never given the security required, and the principal of said share has remained, first, in the hands of Benjamin F. Gilkeson, administrator of the said Henry F. Sherwood, and, since his decease, in the hands of Franklin Gilkeson, his personal representative, on deposit with a trust company, under an order of this court. The petitioner now prays that the said fund, which amounts to $5,547.70, may be paid over to her without her entering into the security required by the auditor, as she has been and is unable to furnish it. In support of her application she files the depositions of herself and Robert B. Sanderson to the effect that the said Henry F. Sherwood is still absent and unheard of, that he left Bucks county in 1872 or 1873 and was last heard from by a letter from him from New Orleans, dated January 29, 1873. Franklin Gilkeson resists the application upon the ground that the matter is res judicata, as the distribution has already been made by the auditor, whose report has been confirmed absolutely, and, therefore, cannot be reopened in this way, and that, under the provisions of the Act of 1885, "the entering of security is imperative," and this court is without power to make the order prayed for. The primary object of the Act of 1885 is declared by the Supreme Court, in Cunnius v. Reading School District, 206 Pa., 469, to be not distribution, but conservation of the estate through the medium of an officer clothed with authority to protect and enforce the rights of the unknown owner, the absentee, if alive, his legal successors, if he be dead." The statute expressly declares in its 5th section that "nothing in this act contained shall validate the title of any person to any money or property received as widow, next of kin or heir of such supposed decedent, but the same

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may be recovered from such person in all cases in which such recovery would be had if this act had not been passed." The presumption of death which arises. where a person is absent and unheard of for seven years, therefore, never becomes absolute, but may always be rebutter, as in reason it must, by the reappearance of the absentee alive. But does the Act of 1885 in question contemplate that security must be given by a distributee of the estate of such supposed decedent that will be perpetual as far as he is concerned, or the distributive share be held perpetually by the court to await the event of the return of the absentee? In the case at bar, where the supposed decedent has been absent for about forty years, has the court no power to direct the payment over to the petitioner of this share, which, for upwards of eight years, has remained under the control of the court? The act, in its 5th section, after providing for the giving of security by the person entitled to recover the fund if the absentee shall be dead, goes on to declare: "But if the person or persons entitled to receive the same is or are unable to give the security aforesaid, then the money shall be put at interest, on security approved by said court, which interest is to be paid annually to the person entitled to it, and the money to remain at interest until the security aforesaid is given, or the Orphans' Court, on application, shall order it to be paid to the person or persons entitled to it." An application is before us from a person who has been adjudged by the court, through its auditor, entitled to receive this fund. It is evident that the legislature did not mean that payment might be made to the returned supposed decedent only, or it would not have employed the words "person or persons entitled to it." There would be one supposed decedent; there might be more than one distributee of his estate. It is clear that the statute contemplates that there will eventually come a time in every case, where a share has been held in default of the security required by law, when, upon application, the court may and should, in the exercise of a sound discretion, order the payment of such

share to the distributee. The Act of 1885 carefully preserves the right of the absentee to sue for and recover his property from any one who has received it by operation of law, upon the presumption of the absentee's death, but it does not provide that the property shall be held indefinitely to await that event. This conclusion is in line with the opinion of the Supreme Court in Morrison's Estate, 183 Pa., 155, where a guardian who had received a distributive share for his ward from the estate of a supposed decedent and given the prescribed security, was directed, upon the application of the ward, after arriving at the age of twenty-one years, to pay over the fund to the latter without his giving security. It is also in harmony with the following cases: Ziegler's Estate, 19 Dist. R., 876; Farrich's Estate, 28 Lanc. Law Rev., 60; Beck's Estate, 16 Lanc. Law Rev., 215; Finger's Estate, 28 Lanc. Law Rev., 334. The position taken by the respondent that the matter involved in the application is res judicata is not tenable. On the contrary, as we have shown, the Act of 1885 clearly contemplates that such an application may be made after distribution has been decreed.

And now, to wit, January 6, 1913, it appearing to the court that Henry F. Sherwood has been absent and unheard of at his last domicile in this county since January 29, 1873, and that Catherine S. Jones, the petitioner, is a distributee of his estate under a distribution thereof heretofore made by this court, and as such entitled to the sum of $5.547.70, which said sum is held by Franklin Gilkeson, the personal representative of Benjamin F. Gilkeson, deceased, who was the administrator of the said Henry F. Sherwood, and, further, that the said Catherine S. Jones is unable to furnish security before receiving her said share, it is ordered and decreed that the said Franklin Gilkeson pay over to the said Catherine S. Jones the said sum of $5,547.70, now on deposit at interest with the Bucks County Trust Company, together with all interest which may have accrued thereon, to the said Catherine S. Jones, without her entering into security for the same.

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