Niles & Neff, contra.

ions of Act 24 May, 1917,-as, indeed, George Wharton Pepper, of Philadelit seems to have been ruled in Common-phia, and Stewart & Gerber, for petition. wealth v. Randolph, 66 Pittsb. L. J. 777. The conclusion is that the prayer of the defendant's petition is too broad to be granted by the court, that it must be refused for that reason, and that the defendant be remitted to his remedy conformably to the Act of 1917.

November 29, 1920, Wanner, P. J.This is a suit in equity, brought in a state court in the Middle District of Pennsylvania, by a citizen of the State of New York against a citizen, and a corporation of Pennsylvania, and a resident of the State of Illinois. The latter defendant, Robert G. McGann, now petitions for the removal of the case to the United States District Court for the Middle District of Pennsylvania, solely upon the ground of the diversity of citiYork Co. zenship between the parties.

The rule to show cause is discharged, with leave to the defendant to amend the prayer of his petition so as to conform it to the Act 24 May, 1917, as pointed out in the foregoing opinion.

C. P. of

Hardinge v. Kuntz et al.

The petition alleges that the interest of William J. Kuntz, one of the Pennsylvania defendants, has been assigned to the plaintiff, and that the other de

Removal of cause-Diversity of citizen- fendant, viz: The York Trust Company,

ship-Record, verity of.

has petitioned for leave to pay into court the securities, &c., in controversy, which An action brought in a state court will not are in its possession, and be thereupon be removed, on the ground of diversity of dismissed as a party to the suit, and that citizenship of the parties, to a United States district court of a district of which neither therefore the plaintiff and the petitioner the plaintiff nor the defendant is a resident. are the only interested and active parties Applications for the removal of causes remaining in the case.

from state courts to United States district

peached by allegations in the petition for removal contradicting the record, merely because the allegations are not denied by other

courts must be disposed of on the status of No answer denying these allegations. the record. The record imports absolute having been filed, if they are taken as verity, and can not be successfully imtrue, this application may be disposed of as if the suit was pending solely between the plaintiff and the petitioner. case was argued by counsel on that assumption.

parties to the suit.

An action brought in a state court will not be removed to a United States district court, on the ground of diversity of citizenship, upon the petition of a defendant which

The

As only cases of which the district avers that he was a "resident," but which court would have had original jurisdicfails to aver that he was a "citizen" of a tion are removable to it from state state, other than that of which the plaintiff was a citizen, when the suit was brought. courts, it is necessary to determine the An action pending in a state court, in nature and extent of the jurisdiction of which two of the defendants are residents the United States district courts as esof the state in which the action is pending, can not be removed to a United States dis-tablished by the United States Judicial trict court, upon a petition of a third de- Code (Comp. Stat. 1916, Sec. 991). fendant, on the ground that the plaintiff and the petitioner are residents of different states, both of which are other than that in

which the action is pending.

Petition of Robert G. McGann for the removal of the action in equity of Harry W. Hardinge v. William J. Kuntz, York Trust Company, a corporation, and Robert G. McGann, No. 4 August Term, 1920, in the Court of Common Pleas of York County, Pa., sitting in equity, to the District Court of the United States for the Middle District of Pennsylvania. Refused.

Sec. 24 provides that district courts. shall have original jurisdiction of suits between citizens of different states, and between citizens of a state and foreign states, citizens, and subjects.

Sec. 28 provides that any suits of which said district court had been given jurisdiction by said code, may be removed by the defendant or defendants therein, being nonresidents of the state wherein such suit has been brought.

Sec. 51 provides that no civil suit shall be brought in any district court against.

any person by any original process or scribed in the Federal decisions on the proceeding in any other district than that subject, we also reach the conclusion whereof he is an inhabitant, but where that there can be no removal of this case. the jurisdiction is founded only on diversity of citizenship it may be brought in the district of the residence of either the plaintiff or defendant.

There is nothing of record showing that the Pennsylvania defendants have divested themselves of their interests in the case, or are no longer necessary parUnder these provisions of the Judicial ties thereto, as alleged in this petition, Code, we are of the opinion that this suit and a contrary inference would seem to as originally brought was within the jur- arise from the fact that they were notiisdiction of the United States District fied to appear at the hearing of this apCourt, for the Middle District of Penn-plication. The record imports absolute sylvania, where two of the defendants verity, and in our opinion, it cannot be resided. successfully impeached by the allegaBut treating it as counsel have done as tions of the petition contradicting the only a suit between the plaintiff, who is face of the record itself, merely because a citizen of New York, and the peti- such allegations are not denied, by other tioning defendant, who is a citizen of Il-parties to the suit. linois, the suit would not be within the According to the record as it stands, jurisdiction of the District Court for the this is an application for the removal of Middle District of Pennsylvania, under a suit from a state court, where two of the provisions of section 51 of the Judi- the defendants are residents of the state cial Code because that district is not the in which the case is pending. residence of either the plaintiff or the That this cannot be done has been redefendant. It would not therefore be removable to that court.

peatedly held by the Federal courts: McNeal Pipe & Foundry Co. v. Howland, 5 S. E. Rep. 745; Blackburn v. Blackburn, 142 Fed. 901; Arkansas Val. Co. v. Cowenhoven, 41 Fed. 450; Parkinson v. Barr, 105 Fed. 81.

This is the conclusion reached by the Supreme Court of the United States, in Ex-Parte Wisner, 203 U. S. 449. (51 Law Ed. 264) which case so far as this portion of its rulings is concerned has There is also another reason why this not been reversed or expressly qualified application must be refused, which the by that Court in any subsequent decision. Court is bound to take notice of, though The authority of that case, and the not presented by counsel at the argument. soundness of its reasoning has been The petition does not allege the citizenquestioned in the lower Federal courts, ship of the defendant in the State of Iland in several instances it has not been linois, at the time of the commencement followed. This conflict of opinion in the of this suit. The allegation that he was lower courts, however, would not justify a "resident" of the State of Illinois at this court in refusing to follow a decision which beside being authoritative in its source, seems to be founded upon a sound and reasonable construction of the statutory law involved in the case. This is especially so in view of the fact that the latest Federal cases recognize its au- Neither does the petition for removal thority as unshaken: Kubie Co. v. Le-state that the York Trust Company is inhigh Val. R. R. Co., 261 Fed. 806-807; corporated under the laws of the State Kansas Gas & Elec. Co. v. Witchita Nat. of Pennsylvania, which has been held Gas Co., 266 Fed. 614 (July 15, 1920); necessary to establish its citizenship Perratte v. Ill. Com. Men's Assn., 267 therein: Crisby v. Cuba R. R. Co., 158 Fed. 583; Batcheldor v. Quimby Land Pa. Fed. 144-146-152; Gage v. Riverside Co.. 267 Fed. 483. Trust Co., 156 Fed. 1002.

But if this application is disposed of on the status of the record itself where all the original defendants are still parties to the suit, which is the method pre

the time of filing the petition for the removal of the case, is insufficient to show the jurisdiction of the district court, or to entitle the petitioner to a removal of the case on the ground of diversity of citizenship alone.

The right of removal of cases to the Federal Courts, being purely statutory, it is held that it must clearly appear from the record itself that the case is remov

able under the provisions of the Judicial two distinct and separate objects a char Code, and not merely from the allega- ter should be refused: In re Evangeltions of the petition. The matter of cit-ical Lutheran and Reformed Congregaizenship and the other jurisdictional tions, 6 Montg. Co. 13. The application facts upon which the right of removal before us proposes to combine in this rests must be established and considered one corporation the purpose specified in as of the date of the commencement of subdivision VIII, and that specified in the suit: Phoenix Ins. Co. v. Pechner, subdivision XIV, of that part of the Act 95 U. S. 185, (24 Law. Ed. 427); Wil- of April 29, 1874, P. L. 73, as amended. son v. Oswego Twp., 151 U. S. 5665 (38 by the Act of July 15, 1897, P. L. 283, Law. Ed. 70-75); Grantley v. Hartley, which sets forth the different objects for 113 U. S. 732 (28 Law. Ed. 1150); R. which corporations of the first class may R. Co. v. Koontz, 104 U. S. 5 (26 Law. be formed. The erection of halls for Ed. 643). public or private purposes, under head VIII, and the receiving and holding of property for unincorporated associations and executing trusts thereof, under head XIV, are two distinct, separate and unrelated purposes. Head VIII refers to a hall of which the corporation is both the legal and the equitable proprietor, and which it maintains for some public or private purpose. Head XIV refers to property of which the cor

And now, to wit, November 29th, 1920, the petition of the defendant, Robert G. McGann, for the removal of this case to United States District Court for the Middle District of Pennsylvania is refused, and the petitioner is directed to pay the costs of the proceedings.

C. P. of

Washington Co.poration is but a trustee for an unincorporated association, which is the equi

Application for Incorporation, &c. table and beneficial proprietor. By the

express provisions of the statute, corporations for the former purpose, and corporations for the latter purpose,

are

Corporations of first class-Charter-classified under distinct and separate More than one purpose-Acts of Ap-heads. A corporation may be chartered for one of these purposes, but should not be for both.

ril 29, 1874, P. L. 73, and July 15, 1897, P. L. 283.

A corporation should be devoted to a sin

gle purpose, and where the application for a charter for a corporation of the first class, sets forth two or more separate and distinct objects, the application will be refused.

The erection of halls for public or private

purposes, and the holding in trust of properties for unincorporated associations, are two distinct and unrelated purposes.

An application for a charter under clause

XIV of the Act of July 15, 1897, P. L. 283, should specify the name or names and character of the society or societies for which

Second. In so far as the present application asks for a charter for the purpose of "receiving, holding and disposing of property, real and personal, of and for unincorporated religious, beneficial, charitable, educational, and missionary societies and associations, and executing trusts thereof and deeds for the sale thereof," it is objectionable as being too broad. As is set forth in our opinion filed at No. 2612 Equity Docket, in the matter of the Glass City Hall Association, clause XIV was not intended to authorize the chartering of corporations with such broad and general powers as these. "What was intended was to authorize the chartering of corporaMay 19, 1920, Brownson, J.-There tions to act as the trustees for specific are two objections to the approval of unincorporated associations; and acthis application. cordingly an application for a charter. First. It has been held that a corpo-under clause XIV should specify the ration should be devoted to a single pur-name or names of the society or societies pose, and if a proposed corporation has for which the corporation is to act as

the corporation is to act as trustee.

Application for incorporation. H. W. Hughes and Vance E. Booher, for applicant.

trustee, and state, with respect to such society or societies, such facts as will show that it or they come within the class of unincorporated associations contemplated by the enactment."

Randolph Stauffer, for plaintiffs.
Harvey F. Heinly, for defendant.

July 6, 1920, Endlich, P. J.-The plaintiffs' claim in this case is for We understand counsel to say that the $770.74. The defendant opposes to this real purpose for which the Midway Hall demand an alleged accord and satisfacAssociation is organized, is that it shall, tion (admitting, however, an error of as trustee for a certain unincorporated $100 in the transaction to which he atlodge, receive and hold thte title to real tributes that effect), or if that is not alestate of which the lodge is the beneficial lowed, a setoff or balance of the same owner, and shall execute the trusts re- amount on previous dealings. The relating thereto, including the conveying sult of the trial was a verdict in favor and disposing of the title when directed of the plaintiffs for $140.58, thus anby the lodge so to do. If this be the swering the demands of neither party. purpose, the charter should be amended Both of them have asked for a new trial so as to make it exclusively a charter and judgment non obstante veredicto. under clause XIV, and so as to state the Of course that circumstance does not purpose more specifically, in the manner make it imperative upon the court to indicated above and in the opinion above grant either application: see Sloan v. cited. Johnson, 20 Pa. Super Ct. 643, 651. But On the other hand, should the object a careful examination of the record has be that the corporation shall erect a hall led to the conclusion that the ends of or halls of its own for public or private justice require the granting of a new purposes, then by amendment the pur- trial. The case upon its facts is quite poses specified in clause XIV should be complicated, and the questions involved excluded, and the charter should be in it were, it is believed, not clearly unmade one to be granted solely under derstood at the trial, and it is pretty certain not adequately explained to or

clause VIII.

And now, May 19, 1920, the court re-apprehended by the jury. In view of fuses to approve the charter in its pres- the necessity of a retrial, it would serve ent form, without prejudice, however, to no good purpose to examine at this time its amendment in such manner as to re- into the questions which were reserved move the objections to its approval by the court. Whether the acceptance which are set forth in the opinion here- of defendant's check of Nov. 13, 1917, with filed; and leave is granted to make by the plaintiffs, as affected by the corsuch amendment.

Practice-New trial-Judgment n. o. v.

Where both parties ask for a new trial and judgment non obstante veredicto, it is not imperative upon the Court to grant either application.

Where, after trial and verdict, it appears upon an examination of the record that the questions involved were not clearly understood at the trial, or adequately explained to or apprehended by the jury, a new trial will be granted.

Rule for new trial and judgment n. o. 7. on behalf of plaintiffs; also rule for new trial and judgment n. o. v. on behalf of defendant.

respondence between the parties, can be regarded as an accord and satisfaction under such decisions as Dimmick v. Banning, Cooper & Co., 256 Pa. 295; Diller v. Brubaker, 52 id. 498; Bernstein v. Hirsch, 33 Pa. Super Ct. 87; American Warming & Ventilating Co. v. Lumber Co., 54 id. 211; Casualty Co. v. Mather, 67 id. 42, or whether. what the defendant claims is available to him as a setoff: see Van Swearingen v. Harris, 1 W. & S. 356; Foringer v. Sisson, 14 Pa. Super Ct. 266; Radenbachs Est., 52 id. 461, can best be decided when the case is again before the court upon the evidence at it may then appear. And so of the plaintiff's claim of accord and satisfaction, if again set up.

The rules to show cause why a new trial should not be granted are made absolute.

O. C. of

Wiley's Estate

Will-Vested remainder.

York Co. (f) his grandson, Leonard C. Wiley, child of a deceased son, Cornelius Wiley, who died in California in 1884, leaving to survive him said son and a widow, Florence L. Wiley.

Where a legacy is made payable at a future time, certain to arrive, and not subject

to conditions precedent, it is vested where there is a person in esse at the time of the testator's death capable of taking when the time arrives, although his interest be liable

4. The daughter, Agnes E. Richardson, died November 10, 1907, leaving to survive her: (a) a son, Charles B. Richardson; (b) a son, William T. Richardson.

5. William O. Wiley died testate to be defeated altogether by his own death. June 18, 1913, leaving no issue, but his

Testator's will provided as follows: "The

share of my daughter, Mary A. Wiley, which I direct to be and remain in the hands and

Widow, Luella K. Wiley, survived him, and by his will duly probated, he left his said widow, Luella K. Wiley, all his property, and made her the executor of

control of my executors, and I direct them to pay to my said daughter, Mary A. Wiley, five per cent. interest on her share annually during her natural life, and after his will. her death, I direct my executors to pay said share in equal shares to my remaining chil- 6. David Nelson Wiley died Novemdren or their issue." Held, upon the distribution of the share of said daughter, after ber 18, 1913, leaving to survive him one her decease, that the remainder given to the son: (a) William C. Wiley. testator's "remaining children" vested testator's death, and must be distributed to

at

them or those who take through them per

stirpes.

Sur exceptions to report of auditor appointed by the Orphans' Court of York County, Pa., to distribute the balance on the first and final account of David Nelson Wiley, surviving testamentary trustee of a fund created under the will of William Wiley, deceased, for the use and benefit of Mary A. Wiley. Exceptions dismissed.

Chas. A. May and Wm. B. Gemmill, for exceptions.

J. G. Glessner, H. A. Gross and A. W. Herrmann, contra.

December 6, 1920, Ross, J.-The facts necessary for an analysis of this case the auditor has embodied in his report. They are as follows:

I. William Wiley, the testator, a resident of Hopewell Township, died November 15th, 1890. His will is dated July 14, 1888.

2. The will was probated November 24, 1890, and letters testamentary were granted to William O. Wiley and David N. Wiley, the executors named in the will.

3. At the time of testator's death, there survived him: (a) his widow, Emily J. Wiley; (b) his daughter, Agnes E. Richardson; (c) his son, David Nelson Wiley; (d) his son, William O. Wiley; (e) his daughter, Mary A. Wiley;

7. Mary A. Wiley died in January, 1920, never having been married and leaving no issue.

The fund now being disposed of is the fund created by the will of William Wiley, deceased, for the benefit of the said daughter.

8. The first distribution of the estate was made in 1892, by an auditor whose report was finally confirmed by the court.

By that distribution, the balance for distribution was divided into four equal parts, or shares: (a) one part was awarded to Agnes E. Richardson; (b) one part (less his advancements) to David N. Wiley; (c) one part (less his advancements) to William O. Wiley; (d) one part to William O. Wiley and David N. Wiley, in trust for Mary A. Wiley, to pay her 5 per cent. interest thereon during her natural life, and after her death to those who may be legally entitled thereto, in accordance with the provisions of testator's will.

The auditor appointed was H. C. Niles, Esq., "to distribute the balance on the account of William O. Wiley and David N. Wiley, executors of William Wiley, late of Hopewell Township, deceased. The report was filed August 1st, 1892, and finally confirmed.

By that report, the balance for distribution was the whole estate of William Wiley, the testator, and was awarded in accordance with the provisions of the will as follows: