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Orphans Court of Lancaster County

Estate of Abraham Ruch, dec'd. Devise at valuation Payment of debts Fiduciaries Act of June 7,

1917, Section 33 (1)-Exceptions.

Where a testator devises his real estate at a fixed valuation, the real estate is converted and the estate distributable as personalty.

In such case a decree under the Fiduciaries Act of June 7, 1917, Section 33 (f), P. L. 502, adjudging the real estate to the devisee and executor on his petition does not change the situation but is simply confirmatory of what the will has accomplished, and amplifies the evidence of title.

A voluntary payment of the debts of a decedent out of the proceeds of real estate on which they had lost their lien, when approved by all parties, is commendable and a subsequent reaction against such payment should not be favored.

Exceptions involving credits in the account and not assigning error in the decree are not properly filed to the decree.

Exceptions to adjudication.
B. F. Davis, for exceptions.
F. S. Groff, contra.
December 31, 1919. Opinion by SMITH, P. J.

To the paper on which has been written the decree of distribution in this estate is attached another paper having a caption Exceptions to the Adjudication.” The underwritten exceptions are regular in form, but irrelevant in application, and they were filed after the prescribed time for filing exceptions. None of them assign any error to any feature of the decree. They would have been pertinent to the account, but even then it has not been made to appear that they should have accomplished its revision; nor sufficiently meritorious are they to influence a judicial discretion which might otherwise set aside rules of practice for their submission. They are directed against credits in the account because of payments by the executor of undisputed debts of the testator.

The exceptants' contention is that while it was proper to pay these debts, it was not proper to pay them out of the proceeds of real estate against which, as they allege, the liens of the debts had been lost. Undoubtedly the creditors could not have enforced payment of their claims had such a condition existed. Nevertheless, a voluntary payment of such debts meets with commendation, and when it is approved by all parties, as it appears to have been in this case, a reaction after the account has been confirmed against such decent conduct should not be favored. But the facts do not bear out the contention. The testator devised to his son, John K. Ruch, real estate upon condition that he pay for it $2,500.00, and the son was made the executor of the will. The personalty amounted to $335.81; the debts, costs and charges to $2,005.84. John K. Ruch accepted the devise and as executor administered the estate, paying all debts within a year from the death of the testator. He supplied the money as needed, thus paying on account of the $2,500.00 owing by him for the real estate, so that when he came to file his account, when he charged himself with the amount of the

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Estate of Abraham Ruch, dec'd. inventory $335.81 and the $2,500.00, there remained only $829.97 for him to pay. There had been a conversion of the real estate, and the testator's entire estate was distributable as personalty.

The devise is somewhat analogous to an executory contract for the sale of real estate entered into by a testator which is executed after his death by a decree of specific performance; and that such property descends as personalty will not be disputed. No transformation happened because the devisee chose after the expiration of a year from the death of the testator to have entered a decree as permitted by the Fiduciaries Act of 1917, P. L. 447, Section 33 (f), which authorizes the Orphans' Court to adjudge real estate to persons to whom the right to take the same at a certain valuation has been given in a will and who are appointed executors of the same will. By virtue of this enactment a devisee for a consideration who is also the executor may petition the Court to adjudge the real estate to him which had been devised to him and about which there is no question or uncertainty as to its title, and may also petition the Court to have a decree entered against himself ordering himself to account for the valuation thereof," from which he could not escape had there been no such decree. The Act is simply confirmatory and amplifies the evidence of title. It only supplements its publication. The will is the essential demonstration, and by it was the title vested in the devisee at the death of the testator.

The exceptions are quashed.

Court of Common Pleas of Lancaster County

Agricultural Trust Co. and Abram H. Eby v. Abraham R. Eby (No. 2).

ReplevinCosts. Where the defendant in replevin gives bond and retains the property, the action becomes substantially an action in trespass and a verdict for the plaintiff for part of the goods claimed carries all the costs.

Rule to apportion costs.
August, 1916, No. 15.
Chas. W. Eaby and John E. Malone, for rule.
H. B. Lutz and B. F. Davis, contra.
January 17, 1920. Opinion by HASSLER, J.

The plaintiff issued this writ of replevin for personal property of the value of $403.00. The defendant gave a counter bond and retained possession of it. The jury found a verdict in plaintiff's favor for a portion of the property of the value of $125.00. The costs were taxed, and amount to $61.48. The defendant presented a petition, asking to have the costs apportioned between the plaintiff and defendant, upon which this rule was granted.

In Shoemaker v. Shoemaker, 4 D. R. 398, in deciding the same question as that involved here, Judge Rice said: “But it seems to be

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Agricultural Trust Co. and Abram H. Eby v. Abraham R. Eby (No. 2). well established in Pennsylvania, that when the defendant in replevin gives bond and retains the property, the title of the plaintiff, whatever it may have been before, is extinguished, and the case then proceeds substantially like an action of trespass. If there is a verdict for the plaintiff, it is not for the property, but for damages, which cannot be satisfied, wholly or pro tanto, by a return of the property. Costs follow by virtue of the statute giving them, and, so far as we have been able to discover, it is not within the discretionary power of the Court to withhold them.”

The defendant in this case gave a counter bond and retained possession of all of the property. Under the circumstances the action was substantially an action in trespass, the damages being assessed at the value of the goods retained by the defendant, which the jury found belonged to the plaintiff. No damages were assessed for the detention which might have been done, but of this the plaintiff does not complain. We are satisfied of the correctness of the conclusion arrived at by Judge Rice in the above case, and that the costs should be paid by the defendant, and not be apportioned. The rule to apportion them is, therefore, discharged.

Quarter Sessions of Lancaster County

Commonwealth v. Bitts. Embezzlement as employee-What jury must find-Objection to in

dictment after plea-Amendment.

A defendant who has plead to an indictment cannot be heard to object that it was found in Oyer and Terminer when it should have been in Quarter Sessions. This matter is even then amendable.

When one comes into possession of money unquestionably the property of another and appropriates it to his own use, he wilfully, fraudulently and feloniously misappropriates it, and all that need be proven to convict him of embezzlement is the misappropriation. If the jury find that fact, then it follows that it was done fraudulently and feloniously unless he defendant shows such is not the case. The burden of showing this is upon him.

Commonwealth v. Hilton, 34 LAW REVIEW 228 distinguished.
Indictment for embezzlement as employee.
Rule for a new trial.
September Sessions, 1919, No. 99.
B. F. Davis, for rule.

John A. Coyle, Owen P. Bricker and C. N. Berntheizel, Dist. Atty., contra.

January 17, 1920. Opinion by HASSLER, J.

The defendant was indicted, tried and convicted of the crime of embezzlement as employee. The indictment charged that he was employed by the Standard Baking Company as a salesman and collector, and as such fraudulently and feloniously embezzled about $400.00 belonging to the said company, on three different days. At the trial the Commonwealth v. Bitts. Commonwealth proved the collection and receipt by the defendant of considerable money belonging to the Standard Baking Company on the three days mentioned in the indictment, which he appropriated to his own use and that he admitted the same to employees of the said company who came to Lancaster to close up the account, promising that he would borrow the necessary money from the bank and pay back to the company.

The defendant denied the receipt of as much money as the Commonwealth's witnesses showed he had received. He claimed payment to the company of an amount greater than it was entitled to. He did not, however, deny his conversations with the employees of the company that he had received its money and appropriated it to his own use.

Two of the reasons filed for a new trial raise questions of law. The first is that the indictment was found in the Oyer and Terminer, and should have been in the Quarter Sessions. The defendant, however, pleaded to the indictment without objection, so that he is too late to object to it now. It is, however, a matter which is amendable and can be amended even now.

The other reason contends that we erred in not instructing the jury that they must find that the defendant did wilfully, fraudulently and feloniously embezzle the money as charged in the indictment. In Com. v. Hilton, 34 L. L. R. 228, where the defendant was convicted on an indictment charging perjury, we granted a new trial for the reason that we had not instructed the jury that they must find that he wilfully and corruptly testified falsely. Perjury is quite a different offense from that of embezzlement. One charged with perjury may have testified falsely through surprise, confusion or mistake, so that it is necessary for the jury to find that he did so testify wilfully and corruptly before a verdict of guilty can be found : Com. v. O'Grady, 4 D. R. 732; Com. v. Cornish, 6 Binn. 249. It is necessary, therefore, that the Court shall instruct the jury to that effect. Embezzlement, as we have said, is quite a different offense. When one comes into possession of the money unquestionably the property of another and appropriates it to his own use, he wilfully, fraudulently and feloniously misappropriates it. All that need be proven is the misappropriation, and if the jury find that fact, then it follows that it was done fraudulently and feloniously, unless the defendant shows that such is not the case. The burden of showing this is upon him. If he proves that he retained such money under a claim of right, then, of course, it would not be retained wilfully, fraudulently and feloniously. The defendant was given the benefit of all this in our instructions, as we left to the jury to find whether he was entitled to retain and use for his own purposes all or any of the money in his possession. The jury found that he was not entitled to do this, and having done so its finding was that he wilfully, fraudulently and feloniously retained it and appropriated it to his own use. The other reasons involve questions of fact, which were, we think, properly left to the jury, so that they do not require consideration here, as its finding is conclusive.

In our opinion the defendant was properly convicted, and the rule for a new trial is discharged.

Court of Common pleas of Lancaster County

Byron Franks v. Lancaster Iron Works. Nuisance-Disturbing noises-Operating of boiler works. While a lawful business so carried on as to be an annoyance and discomfort to the neighbors may be restrained or an action of damages for nuisance maintained, the neighborhood must be a residential neighborhood, and the plaintiff must not have moved into it after the annoyances existed or they must have increased to such an extent as to create a nuisance since he moved in, and the operations must be carried on at unreasonable hours or in an unusual or unlawful manner.

In an action to recover damages for a nuisance against a boiler factory by the lessee of a neighboring dwelling house, a statement is insufficient in law which avers that the defendant company was negligent in the operation and construction of its plant, and by reason of unreasonable hours of operation and lack of proper walls to ward off sound waves, and that the defendant's operations were carried on from seven a. m. to five p. m. and does not state whether or not the defendant's plant was in operation when the plaintiff leased and moved into his house, or that the disturbing noises were made in a residential district or the defendant's business was carried on at unusual hours or in an unlawful manner, or that the plaintiff has suffered any special injury.

Question of law raised by affidavit of defense.
Walter S. Mellinger, for plaintiff.
S. R. Zimmerman, for defendant.

December 27, 1919. Opinion by LANDIS, P. J.

The plaintiff's statement sets forth that he is possessed of premises No. 538 South Prince Street, as tenant, under a lease running from April 1, 1919, to April 1, 1920, and that he and his family, which consists of a wife and two sons, are entitled to the quiet and peaceful enjoyment of his home; that the defendant is a corporation, incorporated under the laws of Pennsylvania, in the State of Pennsylvania, whose principal office is in the City of Lancaster; that the said company is engaged in the manufacture of iron or steel boiler tubes; that in manufacturing the same from iron or sheet steel and riveting the seams by hammers driven by means of compressed air, by caulking them in like manner, and by using large machinery, loud and disturbing noises are produced, which constitute a nuisance; that the building of additions to the plant also contributes to the general discomfort; and that the operations around and about the works are carried on from seven a. m. to five p. m. to full capacity, and frequently with a smaller number of employees after seven p. m. The plaintiff asserts that the company has been negligent in the operation and construction of its plant, and, by reason of unseasonable hours of operation and lack of proper walls to ward off sound waves, he has been injured in health, his earning capacity has been reduced, and he has been deprived of the full comfort and enjoyment of his home. The defendant filed an affidavit of defense, in which it suggested that the plaintiff's statement is insufficient in law, because it fails to set forth that the alleged disturbing noises are made in a residential district, that the plaintiff has suf

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