페이지 이미지
PDF
ePub

N. Y. & N. J. Produce Co., Inc. v. John R. Burkholder. Rule for judgment for plaintiff for want of a sufficient affidavit of defense discharged.

Byron Franks v. Lancaster Iron Works. Affidavit of defense raising a question of law; judgment on pleadings for defendant.

George Schoenberger v. H. N. Wolf. Rule for new trial discharged.

J. G. Usner v. William H. Gass. Rule for new trial discharged.

Edna Wilson, G. Searing Wilson et al. v. S. R. Zimmerman. Rule for judgment for plaintiffs on affidavit of defense; question of law decided against defendant; defendant to file a supplemental affidavit of defense within fifteen days.

Davis Carpenter v. Horace J. Wolf. Rule for a new trial discharged; rule for judgment for defendant n. 0. v. made absolute.

Fredericka Weber v. U. Grant Gibney. Rule for judgment n. 0. V. discharged; if within ten days plaintiff remits so much of verdict as exceeds $24.73, rule for a new trial will be discharged.

George W. Mohler v. Louis E. Ryder. Decree entered that the defendant shall execute and deliver to the plaintiff a deed for property.

Charles H. Carroll v. Daniel Carroll. Bill dismissed.

Commonwealth v. Franklin L. Esbenshade. Motion to quash indictment and demurrer.

By JUDGE HASSLER:

Frank B. Burkholder v. E. K. Hess. Rule to open judgment discharged.

Amelia Bitner v. William A. Sohl. Rule for judgment for want of a sufficient affidavit of defense discharged.

0. D. Brubaker v. The Pennsylvania Railroad Co. Rule for a more specific statement made absolute.

Arthur A. Boltz and Albert B. Boltz v. Winfield G. Thome, administrator of W. B. Thome. Rule to strike off judgment of non-suit discharged.

H. C. Brunner v. Jacob B. Snyder. Rule to strike off judgment of non-suit discharged.

I. M. Christ v. John W. Mink. Rule to open judgment made absolute.

Florence Gottselig 1. Cigarmakers' and International Union of America, No. 257. Rule for judgment for defendant; rule made absolute.

Petition of Peter Mohr to satisfy mortgage. Rule discharged.

The Union Trust Company v. Isaac Martin. Rule for judgment for want of a sufficient affidavit of defense made absolute and judgment for plaintiff for $1,596.87.

Manor Township Auditor's Report. Appeal sustained with directions to the auditors to amend their report.

George H. Warfel v. Jacob M. Burkholder. Rule for judgment for want of a sufficient affidavit of defense made absolute and judgment entered for plaintiff for $515.

George W. Hensel, Jr. v. A. L. Herr & Bro. Findings of fact and law in favor of the defendant.

In re Goodman's License. Rule to refund made absolute.

[ocr errors]

Orphans' Court of Lancaster County

Estate of Peter Büttner. Wills Construction-Intention to exclude one of children. A testator who had seven children by his will gave to four of them by name each $500, followed by an item giving the residue of his estate one share each to the seven children, naming them, which item further stated that for reasons best known to himself he had given $500 less to two of his children, naming two of the three first omitted, than to his other children.

Held, that the omission of his name did not exclude the third one of the children first omitted from a $500 legacy, the specific exclusion of the other two showing an intention not to exclude him.

Adjudication. October Term, 1909, No. 27.
Alfred C. Bruner, for accountant.
Cleon N. Berntheizel, for legatee.
March 25, 1920. By SMITH, P. J.

Peter Büttner died testate August 27, 1909. After the death of his wife, which occurred June 28, 1918, the testator directs in the twelfth item of his will that his estate is to be “converted into money and orders his executor to “pay out of said sum five hundred ($500.) dollars to each" of his children: Mary Anne, Cecelia and Joseph, and five hundred ($500.) dollars to Joseph Janson” in trust for his daughter Caroline.

In the thirteenth item he provides as follows: "... All the rest, residue and remainder of my estate shall be divided as follows: one share to my daughter Mary Anne absolutely, one share to my daughter Cecelia absolutely, one share to my son Charles absolutely, one share to my son Joseph absolutely, one share to my son Conrad absolutely, one share to my son Adam absolutely, and the remaining share to Joseph Janson, in trust, for my daughter Caroline. An examination of items 12th and 13th shows that I have given to each of my sons Conrad and Adam five hundred (500) dollars less than to my other children. This is my intention and I do it for reasons best known to myself.”

It will be seen that the testator's son Charles was not named with each of my (his) children,” to each of whom there is a bequest of five hundred dollars; and that it was not his intention to exclude him from the children thus favored is shown by his later declaration that of all his children only his sons Conrad and Adam are to be excluded. His words, “I have given to each of my sons Conrad and Adam five hundred ($500.) dollars less than to my other children,” reveals an intention to include Charles among the preferred legatees. The omission of his name did not exclude Charles, but the demonstrative exclusion of Conrad and Adam manifests an intention to include him. His exclusion would not be consistent with the rational conclusion, especially in view of the fact that Charles was distinguished as his father's chosen companion and confidential adviser. In harmony with this conclusion is that of all the children of the testator known to be living, expressed by them in a petition.

The statement submitted is a second and final account, and the
VOL. XXXVII, No. 37

Estate of Peter Büttner. parts of the will quoted the sufficient for the purposes of this distribution.

The son Joseph died without issue before the testator, and therefore the legacies to him lapsed ; that of five hundred dollars passed into the residuary estate and the legacy which would have included a share of the residue dropped into intestacy.

Distribution was decreed accordingly.

*

Court of Common Pleas of Lancaster County

Anna Hess v. John F. McAleer, Admr. of Harry McAleer, dec'a. Claim for wages -- Presumption of payment Rebuttal of by engagement to marry

Receipt in full Affidavit of defense Practice Act of May 14, 1915, Sec. 16.

Under the Practice Act of May 14, 1915, P. L. 483, a defendant shall not be permitted at the trial to make any defense which is not set forth in the affidavit of defense.

A plaintiff can recover a claim for wages against an administrator, notwithstanding having signed receipt "in full,” where the receipt is mentioned in the affidavit, not as a defense to the plaintiff's claim, but merely to show that the defendant did pay her for services during the last few weeks of the life of defendant's decedent and took a receipt therefor, and a copy thereof is not attached to the affidavit.

The presumption that domestic services are paid for regularly at stated periods, is rebutted by evidence of an engagement of the plaintiff to marry the defendant's decedent, and such rebuttal relates back to a time prior to the actual engagement.

Such rebbuttal is not affected by proof that the plaintiff was a married woman whose husband had disappeared but was not known to be dead.

Rules for judgment for defendant n. 0. V., and for a new trial.
April Term, 1919, No. 73.
John A. Coyle, for rules.
J. Andrew Frantz, contra.
January 17, 1920. Opinion by HASSLER, J.

The plaintiff's claim in this case is for services, as housekeeper for defendant's decedent, from January 1, 1911, to the date of his death, which occurred on March 26, 1919. She alleges, in her statement, that during the whole time which she thus served the defendant's decedent, he never paid her anything. The trial resulted in a verdict for the plaintiff, and we are now asked to enter judgment for the defendant .n. 0. V., or to grant a new trial.

We will first consider the request to enter judgment for the defendant n. 0. l'. The reason given why it should be done is that the plaintiff signed and gave to the defendant a receipt which contained the words as

paid in full”. At the trial the defendant produced and offered in evidence a re«ceipt, of which the following is a copy: “Received March 29, 1919, from John F. McAleer, Administrator of H. C. McAleer, deceased, Thirty-two Dollars for wages, housekeeping, paid in full. (Signed)

Anna Hess v. John F. McAleer, Admr, of Harry McAleer, dec'd. Mrs. Anna Hess.” He also produced another dated April 2, 1919, in which she acknowledged the receipt of certain furniture “in full for all claims and demands against the estate of H. C. McAleer of any and every kind.” This was signed by the plaintiff and witnessed by M. L. Chadman.

The effect of a written receipt is well established. They are in the same category as written contracts and cannot be set aside except for weighty reasons, such as fraud, accident, or mistake, or other satisfactory explanation of them. This must be proven distinctly and clearly. Nor will the fact that the person signing them has not read them relieve that person from their binding effect. Either one of these receipts, therefore, might have been a bar to plaintiff's claim in the absence of proof by her showing why it should not have been so accepted, if either had been made a defense to it. But neither one of them is made a matter of defense by the defendant in his affidavit of defense.

The Practice Act of May 14, 1915, P. L. 483, Section 5, provides that the Affidavit of Defense shall contain a statement in a concise form of the material facts upon which the party filing it relies. Section 16 provides that the defendant shall not be permitted at the trial to make any defense which is not set forth in the affidavit of defense.

The affidavit of defense in this case does not mention the receipt of April 2, 1919. It does mention the receipt of March 29, 1919, but it does not make it a defense to the plaintiff's claim. It says, in Paragraph 12, “ The defendant avers that there is a just and legal defense to the whole of plaintiff's claim . .. which belief is based on the facts that the defendant was engaged to do domestic work ... on a weekly wage . . . agreed upon by them . . . which wage was paid to her each and every week . . . up to within a few days of the death of the defendant, for which days your affiant paid her and received a receipt therefor. Said receipt not being the receipt referred to in Paragraph 10 of plaintiff's statement, and being for the amount which the plaintiff stated to be all that was due her, for which said amount was paid and for which she received it." No copy of the receipt is attached to the affidavit of defense, and it will be observed that it is not even stated that the receipt contains the words “paid in full.” It is merely mentioned in the affidavit of defense to show that the defendant did pay her for services rendered during the last few weeks of the life of defendant's decedent, and that he took a receipt therefor, that is, for the payment he made, which he alleged she said was all that was due her. It is not mentioned in the affidavit of defense as a defense to the plaintiff's claim, because it is not even stated that the receipt acknowledges the payment to her is payment in full, but it is mentioned only as we have said, as evidence to confirm his statement that she was paid for her services for the last few weeks of his decedent's life. We, therefore, cannot enter judgment for the defendant n. 0. v., and discharge

the rule.

We will now consider the defendant's application for a new trial. The plaintiff's claim was for services as housekeeper during a long Anna Hess v. John F. McAleer, Admr. of Harry McAleer, dec'd. period of time. As the defendant plead the statute of limitations as a defense, in an amendment to his affidavit of defense, we limited her right to recover, to a period of six years preceding his death. There was no question at the trial that the presumption existed that these services were paid for at regular stated periods. The plaintiff assumed the burden of rebutting this presumption. This she did by proof of an engagement to marry defendant's decedent and by the testimony of her two sons, Robert and Andrew, twelve and ten years old respectively.

There are a number of reasons for a new trial, and the principal question raised in them is whether the testimony thus offered to rebut the presumption of periodic payments was sufficient to submit to the jury to justify their finding that it was rebutted.

In Schrader v. Beatty, 206 Pa. 184, it is decided that the rule that there is a presumption that domestics are regularly paid weekly, biweekly, or monthly, has no application when the head of the house assumes relations of intimacy with his servant, and takes a girl employed by him out riding, and by what he says and does indicates an intention to marry her. In such a case the strict rule applicable to purely business relations cannot be invoked by the master, for the intimacy of his personal relations with his servant necessarily involves him in laxity in his business relations with her.

There was no dispute of the fact that the plaintiff and defendant's decedent were engaged to be married. When that engagement took place did not clearly appear in the testimony, but the fact that they were engaged shows such a relation of intimacy between them as would necessarily involve them in laxity in their business relations towards each other. It is contended that such laxity only commenced at the time of the engagement. We do not agree with this contention. An engagement to marry is generally the result of an intimacy between the parties, such an intimacy as would likely excuse the master from regular payment of wages to the servant, where they were the parties to the engagement. When this engagement was made, or how long the parties' relations were so intimate as to result in an engagement was not proven, nor was it necessary for the plaintiff to prove it. Having proved that their relations were such as to result in an engagement, the presumption that regular payments of her wages was made, is rebutted. We think we left the question to the jury with proper instructions, and they found that the engagement of marriage, between the plaintiff and defendant's decedent rebutted the presumption that she was paid her wages at regular stated intervals. We think that in this view of the effect of the engagement that existed between them, there was no error in the refusal of the defendant's points on the question of the engagement to marry. Testimony of this engagement was only offered to show that their personal relations were such as would rebut the presumption of regular payments, and not to create a liability against the estate of the decedent.

Additional testimony rebutting the presumption of regular payments is that of the plaintiff's two sons. Robert Hess, twelve years old, testified that he heard his mother several times ask the decedent for

« 이전계속 »