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Orphans Evurt of Lancaster Caunty

Estate of Jacob Longenecker, dec'd.

Ilills-Interpretation—" Heirs"-Widow.

Where a testator gives the balance of his estate to his son for life with remainder to the son's “legal heirs and representatives," the son's widow should receive one-third of the corpus after his death, and the widow of a deceased grandson, one-third of her husband's vested share.

While the technical meaning of “heirs ” as the inheritors of real estate is preferred, it will be departed from when necessary to carry out the testator's intention to dispose of personalty.

Exceptions to adjudication.

June Term, 1905, No. 21.

Amos E. Burkholder, for exceptions.
John E. Malone, for accountant.

October 20, 1919. Opinion by SMITH, P. J.

The petition for the distribution of this estate contained the names of those believed to be entitled to the balance in the account, and set forth a scheme for the parceling of the entire fund among those named. The name of Eliza J. Longenecker, the widow of Henry B. Longenecker, who had been the cestui que trust, was not included, and she made no claim at the audit. By some mischance it was not known that Henry B. Longenecker had left a widow; therefore in making the distribution she was not taken into consideration.

The fund distributing was given by the testator in trust for the use of his son, Henry B. Longenecker, for life, and after his death, which occurred March 3, 1919, to his legal heirs and representatives."

The word heirs has been and is so generally misused that it has become necessary to accept for it a popular meaning. It is a technical word which comprehends inheritors of real estate. It is not compatible with chattel interests. None the less, owing to its frequent use by testators whose intentions to dispose of personal property are clear, it is accepted as applicable to it. Thus the habit of misuse has correlated personalty with heirs, and personalty may be awarded to a widow or widower as substitutionally in a class of remaindermen distinguished as "legal heirs and representatives." The technical meaning of the word is preferred and it will be departed from only if it is necessary to carry out a contrary testamentary purpose. Therefore, the first exception and those incidental to it are sustained, and to Eliza J. Longenecker is awarded one-third of the corpus.

Potter's Estate, 13 Phila. 318 ; Gibbons v. Fairlamb, 26 Pa. 217; Eby's Appeal, 84 Pa. 241; Ashton's Estate, 134 Pa. 390; Comly's Estate, 136 Pa. 153; Masonic Aid Ass'n 21. Jones, et al., 154 Pa. 105; Neely's Estate, 155 Pa. 133; Boyd's Estate, 199 Pa. 487; Lesieur's Estate, 205 Pa. 119.

Estate of Jacob Longenecker, dec'd. When the testator died the life-interest went to his son's use; where did the remainder go? It vested in some one. Having regard for the testator's obvious intention, in whom else could it have vested than in those who then had the inheritable attributes consistent with the son's transmissibility. To apply the hypertechnical test of nemo est haeres vitentis, the remainder vested in no one who might inherit from the son, but if not in them, where has the remainder been resting since the death of the testator? By the use of the words “ legal heirs and representatives," the testator simply distinguished a class. He did not create a condition. It was merely descriptive. No one can have an heir while living, but one will be recognized as the heir of his father even if the father be living. An interest vested in Jeremiah B. Longenecker, a son of the cestui que trust, at the death of the testator, and when Jeremiah died in 1903 it was a part of his estate. Therefore, the exceptions relating to the award to his widow are dismissed.

Stewart's Estate, 147 Pa. 383; McCrea's Estate, 180 Pa. 81; Fitzpatrick's Estate, 233 Pa. 33; Massey's Estate, 235 Pa. 289; Bache's Estate, 246 Pa. 276.

To conform with this opinion the decree of distribution is reformed as follows:

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legal rate.

Guardian and ward

· Use of ward's money Surcharge of interest Exceptions to definitive decree.

A guardian who used his wards' money in his business should be surcharged interest but the court has no discretionary power to make the interest less than the

While the proper method of correcting a definitive decree is by appeal, exceptions to such decree pressed by both parties may be taken as the expression of an agreement that the court might correct any error that might appear.

Exceptions to decree.
May Term, 1902, No. 71.
October 16, 1919. Reformed decree by SMITH, P. J.

Exceptions have been filed to the decree entered in this estate by both the accounting-guardian and by his wards. The accountant objects to the surcharge of interest, at five per cent, on money of his wards which came into his hands and which he used in his business; and his wards insist that the interest in the surcharge should have been computed at six per cent.

Estate of John Killian. As the accountant was allowed every credit for which he asked, we are unable to find a reason for not charging him with interest for the money he used; therefore, the exceptions filed by him are dismissed.

It must be admitted, there appearing to be a debt of gratitude owing by the wards to their guardian who gave them a home which, however, cannot be reckoned by dollars and cents, that the Court swerved from a strictly mathematical application of the law. It does not seem to be within the discretionary power of the Court to do more than suggest a compromise, which was done by surcharging the accountant with the prevailing rate of interest instead of the legal rate. As this has not been approved, the wards' exceptions relating to the rate of interest must be sustained. True, it could be claimed that if the use of this money in the accountant's business yielded him a profit greater than six per cent, he would be subject to a surcharge proportionate to such profit. There is, however, nothing to show that such was the case.

The other exceptions are dismissed.

The balance is now found to be $1,061.81. As re-reformed the account is confirmed.

The decree to which the exceptions have been filed is a definitive decree. The orderly way to have it corrected would have been by an appeal, but as both are exceptants and both press their exceptions, it is understood that it was agreed between them that this Court might correct any error which might be made to appear.

Legal Miscellany

Charges for Legal Advertising.

The newspapers have increased their charges for legal advertising in part compensation for an increased cost of publication approximating 80% since 1914. The Law Review is in a similar position. The cost of printing it has increased at a rate of considerably more than 80% since 1914. It has, therefore, been compelled also to increase its rates beginning with Volume XXXVII in conformity with the increase by the newspapers. This increase is in no instance more than 50% and in most instances less. The following rates are now in force for the notices most frequently published :

Executors', Administrators' Assignees' and
Receivers' notices

$3.50
Audit notices

3.00 Charter notices

4.50 (minimum)

Quarter Sessions of Laucaster County

Commonwealth v. Newhouser et al. Imposition of costs on prosecutorWhen will be stricken off-Conspir

acy to abduct.

The imposition of the costs on a prosecutor by a jury will be stricken off when the offense charged was of grave character, as conspiracy to abduct the prosecutor, and there was nothing in the testimony to show that the prosecutor acted maliciously or improperly in making the complaint.

Conspiracy to abduct.

Rule to strike off imposition of costs.

January Sessions, 1919, Nos. 3, 22.

John A. Coyle and B. F. Davis, for rule.

John E. Malone and Chas. W. Eaby, contra.

October 18, 1919. Opinion by HASSLER, J.

These two indictments charge the defendants with conspiracy to abduct Isaac R. Eby, the prosecutor. The jury returned a verdict of not guilty and imposed the costs on the prosecutor. He now asks to have so much of the finding of the jury as imposed the costs on him stricken off. In Com. v. Moore, 33 L. L. R. 414, after citing numerous cases wherein it was held that courts have the power which we are asked to exercise here, we concluded from them that there are four classes of cases where the relief asked for should be granted. These are (1) where a wrong person is named as prosecutor, (2) where a public officer is so named, who was only connected with the case in the performance of his official duties, (3) when the prosecution fails because of the death of important witnesses before trial, and (4) in cases of grave character where there is nothing in the testimony to show that the prosecutor acted maliciously and improperly. If the petitioner is entitled to any relief in this case it is because he comes under one of the four classes where such relief should be granted.

It was shown at the trial that Isaac Richmond, one of the defendants, employed two other persons to help him abduct the prosecutor, and that the said Isaac Richmond and the two persons so employed did attempt to take Isaac R. Eby and place him in an automobile for the purpose of carrying him away. That Isaac Richmond was one of the persons who conspired to do this and who attempted to do it, was not questioned at the trial, but there was considerable doubt whether the other two defendants were the ones with whom he so conspired. We told the jury that under the testimony it would be improper for them to convict them, but left to the jury the question of the guilt of Isaac Richmond, as the indictment charged that he not only conspired with Newhouser and Foltz, but with two other men whose names were un

VOL. XXXVII, No. 2

Commonwealth v. Newhouser et al. known. The verdict of the jury finding Isaac Richmond not guilty was a surprise to us, and we think a mistake. The offense charged was one of grave character, and there is nothing in the testimony to show that the prosecutor acted maliciously or improperly in making complaint against him.

It is, therefore, one of the class of cases where the relief asked for should be granted, and we make absolute the rule to strike off so much of the verdict of the jury as imposes the costs upon Isaac R. Eby, the prosecutor.

Rule made absolute.

Quarter Sessions of Lancastec County

Commonwealth v. Richmond.

Costs on prosecutor-When not stricken of The imposition of costs on a prosecutor by the jury will not be stricken off where the charge grew out of a transaction about which there had been another criminal complaint, and no separate prosecution should have been made.

Assault and battery.
Rule to strike off imposition of costs.
January Sessions, 1919, No. 21.
John A. Coyle and B. F. Davis, for rule.
John E. Malone and Chas. W. Eaby, contra.
October 18, 1919. Opinion by HASSLER, J.

A complaint was made by Isaac R. Eby, charging this defendant, with others, with conspiracy to abduct him. C. E. Martin, who helped to prevent such abduction, made this complaint, which charged that the defendant committed an assault and battery upon him. The jury found a verdict of not guilty and imposed the costs on the prosecutor. He now asks us to strike off so much of the finding of the jury as imposes the costs upon him.

The testimony did not show that any assault and battery was committed upon the prosecutor, excepting that in attempting to prevent the defendant from putting Isaac R. Eby into an automobile the prosecutor and defendant came in contact with each other, and we do not think that the facts as shown at the trial justified the making of the complaint. It was part of the case included in the complaint of Isaac R. Eby charging the defendant and others with conspiracy, and no separate prosecution should have been made. We, therefore, discharge the rule to strike off so much of the finding of the jury as imposes the costs upon the prosecutor.

Rule discharged.

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