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New Holland Nat'l Bank, to use of Weaver v. Gehman.
April 16, 1921. Opinion by HASSLER, J.

We are asked to enter judgment for the defendant in this case non obstante veredicto. The undisputed facts, shown at the trial, are as follows: Prior to April 28, 1918, the plaintiff bank was holder of a note for $2800.00, of which the defendant was maker and Mrs. E. A. Weaver, whose executors have paid it and are the present holders of it, was payee and endorser. It came due on April 28, 1918, which was a Sunday. On April 30, 1918, the note which is the subject of this suit was delivered to the bank to renew the one then held by it. It was not dated, and the clerk who received it inserted the date when the first note came due, viz.: April 28, 1918, which, as we have said, was a Sunday. The note was signed by the defendant on Sunday, and endorsed by Mrs. E. A. Weaver on the same day, it having been taken to Mrs. Weaver's house by her daughter, Mrs. Emma Gehman, wife of the defendant.

The reason given why judgment should be entered for the defendant n. 0. v. is that the note is void because it was signed on Sunday.

It is true that a contract made on Sunday is contra bonos mores, and the law will not help in its execution. But when anything is necessary to complete a contract it is not rendered invalid because it was made or done on a Sunday. Thus in Com. v. Kendig, 2 Pa. 448, where a surety on a justice's bond signed it on Sunday, but it was not approved by the Court nor delivered to the Prothonotary until Monday, the contract was not completed until Monday, and it was held to be binding upon the surety. In Sherman v. Roberts, 1 Grant 261, a bond was signed by a surety on Sunday, but it was not delivered until Monday, and it was decided that the surety was bound. In Beitenman's Appeal, 55 Pa. 183, it is decided that an instrument which does not take effect until delivery is not void because signed on Sunday. See also Stevens v. Hallock & Co., 7 Kulp 260; Dowd v. Goodman, 18 Lack 317.

The note his case was not a complete contract until it was delivered to the plaintiff bank, and as that was done on Tuesday, April 30, 1918, the fact that the defendant signed it on Sunday did not relieve him from liability on it. Nor does the fact that a clerk in the plaintiff bank inserted the date when the prior note came due, being a Sunday, and not the date on which it was received at the bank, relieve the defendant from liability. It was proven at the trial that it was not delivered to the bank on the date appearing in it, but on Tuesday, April 30, 1918. An error in the date of a note is a matter that can be explained.

Judgment was obtained by the bank against the estate of Mrs. E. A. Weaver now deceased, as endorser of the note, which judgment has been paid by her executors. As she endorsed the note for the defendant's accommodation, he is liable to her estate for the amount which it has paid. The rule to show cause why judgment should not be entered for the defendant n. 0. v. is therefore discharged.

Rule discharged.

Court of Common Pleas of Lancaster County

Harold G. Ripple, Attorney for Lena Miedl, v. Theodore Wolf.
H. Edgar Sherts' Use v. Theodore Wolf and Joseph Gerhart.

Tuo judgment notes for same debt-Inter pleader-Acts of March 11,

1830, P. L. 76, and of 1 & 2 William IV, c. 58.

A borrower who gave judgment notes for the same amount borrowed to both a husband and his wife, each of whom claimed ownership of the money loaned, is not in a position to pay the money into court and ask for an interpleader issue, having expressly acknowledged liability to not only one but to both of the claimants.

“He perhaps can have the second judgment opened to test his liability thereon, and the court can control its process, until the whole matter is finally decided."

Rule on plaintiffs to interplead. November Term, 1919, No. 157, and January Term, 1920, No. 201.

S. V. Hosterman, for rule.
H. Edgar Sherts, contra.

March 26, 1921. Opinion by LANDIS, P. J.

The petition in the above case alleges that, on or about May, 1919, the defendant borrowed $300.00 from Otto Miedl or Lena Miedl, either or both, they then being husband and wife and living together in the City of Lancaster. Be that as it may, it is undisputed that, on June 3, 1919, Theodore Wolf and Joseph Gerhart signed a judgment note for that amount, payable to the order of Otto Miedl two years after date. This judgment was, on March 13, 1920, assigned by Otto Miedl to H. Edgar Sherts, the use-plaintiff. On January 6, 1920, Theodore Wolf signed a judgment note for the same amount, payable on April 1, 1920, to Harold G. Ripple, attorney for Lena Miedl. The latter note was signed under representations made by Lena Miedl to Wolf that the $300.00 was her money, and that the note given to Otto Miedl was invalid. The defendant alleges that he is willing to pay the money, but that, as both these parties are claiming it, he asks leave to pay the same into Court, and that the Prothonotary be ordered and directed to mark both judgments satisfied. In the depositions, it was testified by defendant that, in August, 1918, Otto Miedl gave him $200.00, though both were together at the time, and thai he gave a note in Otto Miedl's name; that Lena Miedl brought him the $100.00 in May, 1919, and he then gave no writing for that amount; that, after these parties separated, Otto Miedl came out to his house with a judgment note for $300.00, and he signed it.

It will be observed that the defendant, by his own voluntary act, has placed himself in his present position. He knew that he had signed the judgment note in favor of Otto Miedl, and, notwithstanding that act, he subsequently signed the note in favor of Lena Miedl. Under such circumstances, ought he be allowed to pay this money into Court ?

Vol. XXXVII, No. 85

Harold G. Ripple, Attorney for Lena Miedl, v. Theodore Wolf.

H. Edgar Sherts' U'se v. Theodore Wolf and Joseph Gerhart. By section 4 of the Act of March 11, 1836, P. L. 76, it is provided that “the defendant in any action which shall be brought in the said court for the recovery of money, or of any goods or chattels, or the value thereof in damages, which shall have come lawfully to his hands or possession, may, at any time after declaration filed and before plea pleaded by a suggestion to be filed of record, disclaim all interest in the subject matter of such action, and offer to bring the same into court, or to pay or dispose thereof as the court shall order, and if he shall also allege under oath or affirmation that the right thereto is claimed by, or supposed to belong to some person not party to the action (naming him or them), who has sued or is expected to sue for the same, or shall shew some probable matter to the court to believe that such suggestion is true, the said court may thereupon order the plaintiff to interplead with such third person, and make such rules and orders in the cause, and issue such process for the purpose of making such third person party to the action, and for carrying such proceeding to interplead into full and complete effect, and may render such judgment or judgments thereon, as shall be agreeable to the rules and practices of the law in like cases.” But this Act does not apply to the present case, for no action is pending, judgment by warrant of attorney having been entered on both judgments. It is also true that, under the Statute of 1 & 2 William IV, an interpleader can be allowed in a proper case or under the common law or even in equity. In Hillegass v. Strohecker, 22 Dist. Rep. 635, Endlich, P. J., held that “in a proper case the Court has power to grant an interpleader independently of the Interpleader Act"; but such an order is not to be had for the asking, and to exercise such power there must be some purpose to be served by it which cannot as well be served without it — some right, equity or convenience promoted, which otherwise would be denied. Does this case fall under this rule?

In Bechtel v. Sheafer, 117 Pa. 555, it was held that, as a general rule the party seeking relief by an interpleader must not have incurred any independent liability to either of the rival claimants. If he has expressly acknowledged the title or right of one of them, and agreed to hold the property for him, or, disregarding the adverse claim of one, has by contract made himself liable in any event to the other, he cannot be said to stand indifferent between them. See, also, McSorley ?'. Coyle, 40 Sup. 560, and Warrington v. Mengel, 41 Sup. 362. In De Zouche

Garrison, 140 Pa. 430, it was held that "a defendant who applies for an interpleader under the Act of March 11, 1836, P. L. 77, must be a mere stakeholder, must have no interest in the subject matter of the suit, must admit his liability for the whole of the plaintiff's demand, and must offer to bring the goods or money into Court, or to dispose thereof as the Court shall order."

In this case, the defendant expressly acknowledged his liability to Otto Miedl by signing and delivering to him a judgment note. true that he afterwards did the same thing with Lena Miedl. But so much the worse for him for having expressly acknowledged the right

V.

Harold G. Ripple, Attorney for Lena Miedl, v. Theodore Wolf.

H. Edgar Sherts' Use v. Theodore Wolf and Joseph Gerhart. of one or both to this money; and having agreed to pay it, he is not in a position to pay the money into Court and ask for an interpleader to determine its ownership. He perhaps can have the second judgment opened, to test his liability thereon, and the Court can control its process until the whole matter is finally decided.

The rule for an interpleader is now discharged.
Rule discharged.

Orphans' Court of Lancaster County

Estate of Andrew G. Miller, dec'a. Bequest for life with remainder to heirs-Active trust-Rule in Shel

ley's Case.

The Rule in Shelley's Case should not be applied to transform into an absolute bequest an active trust to invest and pay the income of a fund to the beneficiary during her life and the principal to her heirs and legal representatives after her death, coupled with the injunction that “no part of the principal sum shall at any time be paid to " her.

Rule to terminate trust. June Term, 1911, No. 19.
John A. Nauman and Allan M. Sterne, for rule.
Amos E. Burkholder, for estate.
May 26, 1921. Opinion by SMITH, P. J.

This proceeding is on a rule to show cause why The Lancaster Trust Company, trustee, under the will of Andrew G. Miller, to hold and invest a fund and pay the interest accruing therefrom to Blanche E. Myers, a daughter of the testator, during her life, and after her death pay the principal to her “ heirs and legal representatives,” should not pay the principal to her and the trust be terminated.

As ample justification for the approval of petitioner's prayer, counsel cites, Lauer, Appellant, v. Hoffman, 241 Pa. 315, and In re Appointment of Trustee for Estate of Lillian L. Redmond, 12 D. R. 142.

The essential part of the will is as follows:

"... I give to the Lancaster Trust Company of Lancaster, Pa., in Trust, for the following uses and purposes, to wit: To safely invest the principal thereof at interest, and keep the same well invested, during the lifetime of my two children, Frank and Blanche, and to pay the annual net income or interest thereof unto my said two children, during their lifetime, equally between them, but no part of the principal sum shall at any time be paid to them, and immediately upon the death of said Frank and Blanche the said principal sum as held in trust, shall be paid as follows: The one half theerof unto the heirs and legal representatives of said Frank Miller according to law, and the other one half thereof unto the heirs and legal representatives of said Blanche Miller according to law."

Estate of Andrew G. Miller, dec'd. The opinion in Lauer v. Hoffman demonstrates that the clear intention of a testator may be disregarded if it conflicts with the rule in Shelley's Case. The Court therein, through Mr. Justice Brown, enunciated a crisp rule as a guide for the proper application of the rule in Shelley's Case: “A clearly expressed intention by a grantor or devisor that the reamindermen are not to take from him, but from his grantee or devisee of a life estate to which he has attached an inheritable succession” is a gift in fee to the designated life tenant. This rule is “as unvarying as the needle to the pole.” In that case, where the testator intended to give only a life estate, which was pronounced a fee, Mr. Justice Brown in the first clause of the first sentence of his opinion says, It is clear that the testator intended to give his daughter but a life estate.” It was declared a devise in fee, notwithstanding it had been found that the testator clearly expressed an intention clearly the reverse of the intention on which the decision rests. Apparently, however certainly and clearly a testator expresses his intention to create a life estate, and it is so found, it is no obstacle to concurrently finding that he clearly expressed an intention irreconcilable with that clearly expressed intention. A fee may be decreed, therefore, in favor of one whom the testator did not contemplate and in whom he had said, “in no event whatever shall the fee simple vest.

Notwithstanding Mr. Justice Brown says, referring to the rule framed by him, “With this easily comprehended and constantly kept in mind, the rule in Shelley's Case is simple and ill deserves the epithets' chronically bestowed upon it," all the difficulties with which one is beset in attempting to apply the rule in Shelley's Case do not seem to have been removed. What words are there, or can any be coined, which will give an intelligible understanding of a clearly expressed intention consistent with the fact that there is another clearly expressed intention diametrically the opposite of the intention which may operate the rule? Is it possible to have a clearly expressed intention when the intention is inseparably linked with an incompatible intention which has been clearly expressed? While an intention could and would be found, hardly could it be said because “clearly expressed,” and if not "clearly expressed " the rule would seem to be inapplicable.

Though there is no opposition to granting the prayer of the petitioner, we must admit a deficiency in mental agility equal to the feat of designing a scheme by which this active trust can be transformed into an absolute bequest to the beneficiary to whom only the income of the fund has been given for life, and in defiance of the testator's injunction that “no part of the principal sum shall at any time be paid to” her, it is altogether probable that if the testator had devised real estate to the petitioner for life and at her death “to her heirs and legal representatives,” that it would be found that to her attached an "inheritable succession,” and therefore to her had been given an estate in fee. By analogy the same rule would be compliant to personalty. But this testator did not give the fund to the petitioner with the right to use the income for her life. He gave it to The Lancaster Trust Company,

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