I.

"To Leonard C. Wiley, a minor, the widow and only heir of William O. son of Florence L. Wiley, and grandson Wiley, deceased, as related in our 5th of testator, is bequeathed fifty dollars." finding of fact; 1/6 to Charles B. Rich2. "The balance of the estate is de-ardson; and 1/6 to William T. Richvised and bequeathed to testator's chil-ardson, who are the only surviving children, Agnes E. Richardson, wife of Cal- dren of Agnes E. Richardson, deceased, vin Richardson, Mary A. Wiley, David as recited in our 4th finding of fact. N. Wiley and William O. Wiley, in equal shares."

3. "The share of the daughter, Mary A. Wiley, is directed to remain in the hands and control of the executors, they to pay her five per cent. interest on her share annually during life, and after her death to pay said share to testator's remaining children or their issue."

As we relate in the 7th finding of fact, this is the fund now being disposed of.

The balance for distribution in the present case, after deducting costs of audit and claims which are undisputed, is $2,708.66.

To these awards, the counsel for the said sons of Agnes E. Richardson and Leonard C. Wiley except and file a number of exceptions, all of which are resolved into the theory that the estate should be divided per capita, so that all the grandchildren of the testator should share alike.

That theory, under the express provisions of the will, we think is erroneous. It is not necessary here to add anything to the clear discussion made by the learned auditor on the subject, for after a careful examination of the will, we are convinced that he is entirely cor

accord with the views adopted in the general distribution of the whole of the testator's estate, as related in our 8th finding of fact, and is clearly in accordance with the numerous decisions of our appellate courts.

* * *

The learned auditor has, in a care-rect in analysis and conclusions. It is in fully written opinion, concluded that "testator had four children, and after providing for his wife and Leonard C. Wiley first, divided his estate among his four children, naming them, and then gave the one share to Mary A. Wiley for life. He evidently did not expect his The express provision of the testator daughter to live long, because he says in his will gives to Mary A. Wiley an she is sickly. He did not expect her to equal share with his other named chillive long enough to get married and bear dren. He then qualifies the bequest in children, because he makes no provision the following language: "The share of for any such children. Having given my daughter, Mary A. Wiley, which I the other three children their shares and direct to be and remain in the hands and bequeathed this share to his daughter control of my executors, and for life, it is perfectly clear that he I direct them to pay to my said daughmeant to give her share to the remaining ter, Mary A. Wiley, five per cent. interthree children, to be possessed and en- est on her share annually during her natjoyed by them upon the death of the ural life, and after her death, I direct daughter, Mary A. Wiley, which he ex- my executors to pay said share in equal pected to occur first," and further de- shares to my remaining children or their cides, "that the fund vested immediately issue. This disposition of my daughter, upon the testator's death, in his three Mary A. Wiley's share, I make because remaining children, to wit: Agnes she is sickly and unable to manage her Richardson, David Nelson Wiley, and estate"; which brings this case within William O. Wiley, and that distribution the rule illustrated by the authorimust be made per stirpes among those ties cited in his discussion, who now represent the interest of said some more recent decisions: children." nings' Estate, 266 Pa. 60, Accordingly, the distribution is made, "Where a testator gives his estate 1/3 to William C. Wiley, who, as will be to his wife and after her death to his observed by reference to our 6th finding three children share and share alike, ‘and of fact, is the only survivor of David N. in the event of the death of any of the Wiley, the son of decedent, mentioned in said children leaving a child or children, the will; to Luella K. Wiley, who is such child or children to take the share

and

Jen

says:

of their parent,' a daughter who sur- rant of attorney to confess judgment convives her father and dies in her minor-tained therein, without at least an affidavit in some form that the alleged default actuality in the lifetime of her mother, intes-ly has occurred, and a judgment entered in tate, unmarried and without issue, has a such case without such affidavit or other vested estate in remainder subject to the legal proof is illegal and will be stricken mother's life estate, and her share will be awarded to her personal representative for future accounting to those entitled thereto."

Marshall's Estate, 262 Pa. 145, says: "The law leans to vested rather than contingent estates, and the presumption is that a legacy is vested."

from the record.

should not be stricken from the record. Rule to show cause why judgment

Goldsmith&Goldsmith, for plaintiff.

H. S. Dumbauld, for defendant.

July 27, 1920, Van Swearingen, P. J. -By virtue of a warrant of attorney to "The presumption that a legacy was confess judgment contained in the writintended to be vested applies with far ten contract attached to plaintiff's stategreater force where a testator is making ment of claim, judgment was confessed provision for a child or grandchild than in favor of the plaintiff and against the where the gift is to a stranger or to a defendant for the sum of $543.75, tocollateral relative."

gether with interest, attorney's commission, and costs. Defendant took a rule on plaintiff to show cause why the judgment should not be stricken from the record, or why it should not be opened and the defendant let into a defense.

"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, alPlaintiff's statement of claim sets though his interest be liable to be de-forth that on December 9, 1918, by the feated altogether by his own death."

sessed estate is vested if it is certain to

provisions of the written contract thereHood v. Maires, 255 Pa. 128, says: to attached the plaintiff leased to the de"If there is a present right to a future fendant a certain fur coat, of the value possession, though that right may be de- of $543-75, for a period of three months, feated by some future event, there is the defendant agreeing to pay as rent nevertheless a vested estate. An unpos-and hire for the coat the sum of $181.25 take effect in possession, by enduring day of each month, commencing on Janper month for three months, on the 15th longer than the precedent estate." "The law favors vested rather than would be entitled to a bill of sale for the uary 9, 1919, whereupon the defendant contingent estates, and unless it clearly coat, but that no part of said rental ever appears from the context or circumstances of the case that a contingent in-was paid, and that by reason of her deterest was intended, the remainder will defendant became liable to the plaintiff fault in the making of said payments the be regarded as vesting at the death of for the full value of the coat. The conthe testator, and not at the expiration of tract authorized judgment to be entered the life tenancy." against the defendant only after default And now, December 6th, 1920, the ex-in the making of the payments when ceptions filed are all dismissed, and the due. No affidavit of default was filed. auditor's report is confirmed.

The defendant alleged in her petition. for the rule, in favor of striking off the judgment, that the entry of the judgment was illegal, null and void for the following reasons appearing upon the face of the record: (1) That the plaintiff's statement of claim, upon which the judgment was entered, is not supported by the necessary affidavit; and (2) that confession of judgment being authorized by the warrant of attorney only after default of compliance with the terms of the

contract the judgment was entered illegally, in the absence of any evidence, proof or affidavit of such default.

J. B. Hannum, contra.

November 22, 1920.-Broomall, J.Section 9 of the Practice Act of May The defendant entered into negotiations 14, 1915, P. L. 483, requires the state- with the Roman Automobile Company ment of claim to be sworn to by the for the purchase of an automobile. They plaintiff or some person having knowl- agreed upon a price of seven hundred edge of the facts, and to be signed by dollars, and the defendant paid three plaintiff's attorney, if there be an attor-hundred and fifty dollars on account. ney. The statement of claim in this case At this point the defendant was interis signed by plaintiff's attorneys. but is ested to obtain possession of the autoAutomobile not sworn to by anybody. There was no mobile, and the Roman motion, however, to have the statement Company was interested to obtain the of claim stricken from the record for not remainder of the purchase money. To conforming to the provisions of the act, supply these desires they had recourse as is authorized by section 21 thereof. to the plaintiff, when a bailment contract But it never has been the practice of this or lease, in writing, was executed by the This contract court to enter judgment for alleged de- plaintiff and defendant. fault in the performance of the provis-or lease invested the plaintiff with the ions of a contract without at least an af- quality or capacity of lessor and the defidavit in some form that the alleged de- fendant as lessee. Thereupon the default actually has occurred; and we are fendant obtained the possession of the of opinion that a judgment entered in automobile and no doubt the Roman Ausuch case without such affidavit or other tomobile Company received the purlegal proof is illegal. chase money from the plaintiff.

And now, July 27, 1920, for the reasons stated in the opinion herewith filed, the judgment in this case is stricken from the record, at cost of plaintiff.

This lease is the law of the parties. It lets the car to the defendant for a term of six months for a rental of $700, either in advance, or at the option of the lessee in instalment, of $350 at the date of the lease, July 23, 1918, and thirty dollars, every alternate Monday thereafAutomobile Finance Co. v. Sloan ter, beginning July 29, 1918.

C. P. of

Delware Co.

When all the rent should be paid, the defendant was to become the owner by

Bailment―Rental payable in instalments the payment of a nominal sum of one -Interest on rental-Default in pay-lease, giving to the lessor the right to

ment of instalments-Waiver of default-Replevin.

A chattel was bailed for a specified term by a contract, which provided that rental should be paid in instalments and that upon bailor might retake the chattel. At the time of the execution of the contract the bailor

default in payment of any instalment the

received interest on the full rental for the whole term. Default was made in payment

of an instalment and the bailor issud a writ in replevin within the term. Held: That whether the payment was made for interest, and whether it purcased a credit for the

term, were questions for the jury and that a verdict for the defendant should be tained.

sus

dollar. There is a stipulation in the

determine the lease for non-payment of rent, and the right to take immediate possession of the car. The defendant made the cash payment of $350, and made three bi-weekly payments of $30 each, and ceased to make any further payments, and the plaintiff issued this writ of replevin on November 13, 1918.

The difficulty in the case was presented by proof introduced by the defendant to the effect that after the execution of the lease the plaintiff demanded and she paid $10.50 for interest. There were no other money rela

Motion by plaintiff for judgment n. o. tions between the parties than the rent under the lease, amounting to $350. The contractual term in the lease is six

7. and for a new trial.

W. Roger Fronefield and Geo. J. Ed- months. The amount $10.50 is just the wards, Jr., for motion.

lawful interest on $350 for six months.

house"; which also vests in Mrs. W. H.

Rodenhouse, exclusively, a fee simple title to said houses on North Court Avenue, and en_ titles the plaintiff to recover the purchase price of the same, in this action.

The plaintiff gave no explanation of the reason for this payment. The defendant evidently confided the details of the business to the plaintiff. True, by a clause in the lease, the defendant agreed Case stated in Harry E. Rodenhouse, to give collateral notes for the instal- Executor of the last will and testament ments of rent, which were to bear inter- of Rebecca N. Rodenhouse, deceased, v. est at six per cent. per annum until Lewis Milton Frush, No. 52, January paid, but this interest was not to be paid in advance.

And true it is that the defendant made the first three payments, as they became due, but these payments may have been made voluntarily, before they were legally due, or they may have been made. by the defendant in ignorance of her rights.

The jury were instructed that if they found this interest payment was made, and that it purchased a credit of six months, then the writ was issued before the defendant was in default and the verdict should be for the defendant. The verdict was in favor of the defendant.

The plaintiff has no cause of complaint against the jury finding a less value of the car than the valuation put on it by the plaintiff.

We see no error in the trial of the

case.

for

Term, 1921, in the Court of Common Pleas of York County, Pa., to determine the marketability of title. Judgment for plaintiff.

Samuel Kurtz, for plaintiff.

R. P. Sherwood, for defendant.

December 20, 1920, Wanner, P. J.— This is a case stated to determine the marketability of the title to a house on North Court Avenue, in the City of York, which the defendant purchased from the plaintiff, but refuses to pay for, on the ground that the plaintiff's title thereto is not good.

The precise question for determination is whether or not Mrs. William H. Rodenhouse acquired a fee simple title to said premises, under the following provisions of the will of Robert Mickle, deceased:

Therefore plaintiff's motions "Item I. I give and bequeath to Wiljudgment non obstante veredicto and liam H. Rodenhouse and his wife Re

for a new trial are dismissed.

O. C. of

becca my four brick houses on Walnut Street extended, and my two brick

York Co. houses on New Salem Avenue exclu

Rodenhouse, Executor, v. Frush sively, to Mrs. W. H. Rodenhouse, and

Will

-

Construction

words-Devise.

The portion of testator's will to be construed is the following:

two houses on North Court Avenue."

It will be seen that Item 1, of the testator's will, contains two entirely clear

There is no doubt whatever about

Transposition of devises of real estate in its two successive clauses, viz: (1) to William H. Rodenhouse and his wife Rebecca, jointly four houses on Walnut Street extended; (2) Two houses on New Salem Avenue, "Item 1. I give and bequeath to William H. Rodenhouse and his wife Rebecca my exclusively to Mrs. William H. Rodenfour brick houses on Walnut Street extend-house. ed, and my two brick houses on New Salem Avenue exclusively, to Mrs. W. H. Rodenhouse, and two houses on North Court Ave- either of them, but it is contended that the words "and two houses on North devise the two houses on North Court Ave-Court Avenue," which conclude the to Mrs. W. H. Rodenhouse exclusively clause containing the second devise, do was sufficiently apparent without any trans- not clearly express any intention of the position of the concluding words describing said houses. testator that said lots shall also go to Mrs. William H. Rodenhouse, exclusively.

nue.'

Held, (1) That the testator's intention to

nue

(2) That if transposition of the final

words of the second clause of the item quoted were necessary, it could only be to another place in the same clause so as to make That seems, however, to be the natit read "my two brick houses on New Salem ural import of these words as they stand, Avenue exclusively to Mrs. W. H. Roden- joined to the immediately preceding ex

Avenue, and two houses on North Court

pression of the testator's intention in the to Mr. and Mrs. William H. Rodenhouse same clause. He apparently adds these jointly, because that clause is complete two houses to the other two already given in itself as it stands, and is disconnected to Mrs. William H. Rodenhouse exclu- by a comma from the second devise in sively, and his language does not appear which the words in question are into be susceptible of any other apt and cluded. reasonable construction.

The conclusion reached by the Court is that Item I of the testator's will vested in Mrs. William H. Rodenhouse, exclusively, a fee simple title to the premises sold the defendant by the plaintiff, and that the plaintiff is therefore entitled to recover the price thereof as set forth in the case stated for the opinion of the And now,

There seems to be no need, therefore, of any transposition of the words of the devise contained in the second clause of Item 1, in order to ascertain the intention of the testator. It is true that it has long been held by the courts, that where the testator's expressions are inapt and defective, but an intention to devise the Court. property in question is apparent, the to wit, December 20th, court may transpose the inaptly ex- 1920: Judgment is entered for the plainpressed language of the testator so as to tiff and against the defendant for the make his intentions clear: Ferry's Ap-sum of one thousand dollars with costs peal, 102 Pa. 207; Klapp's Estate, 19 Pa. of suit. Super. Ct. 150; Worst v. DeHaven, 262 Pa. 39-42.

That the testator did not intend to die intestate as to any of his property is indicated by the fact that he made a will disposing of his estate, both real and personal, and as it contained no residuary clause, he apparently supposed that he had therein disposed of his entire estate. His inclusion of this property among those to be disposed of by Item 1 of his will, is in our opinion, conclusive evidence of the testator's intention to devise it also, and the only open question, therefore, is whether his language indicates with sufficient clearness the party to whom it was to go.

C. P. of

Allegheny Co.

Hilmer v. Marcus

Contracts-Resale of eggs-Rule for judgment-Expenses-Market priceCustom sales Act of May 19, 1915, P.

L. 543.

A rule for judgment for want of a suffi

cient affidavit of defense was discharged where, defendant having refused to accept a car load of eggs, plaintiff shipped the same to another market and sued for the difference in the contract price and the amount realized and added the costs incident to the

proof outside the contract, and not having contract, plaintiff was not entitled to a judgment.

taken a rule for a partial judgment on the

Under these circumstances the pre-re-sale. This extra outlay was a matter of sumption of the law is strongly against a partial intestacy and the testator's language will be so construed either as it stands or as necssarily transposed, as to identify the intended devisee, and make his purpose effective: Lefebre v. D'Arcy, 236 Pa. 235: Caslow v. Strasbaugh, 233 Pa. 69.

Rule for judgment for want of sufficient affidavit of defense.

Alexander Gilfillan and John M. Reed, for plaintiff.

lan, for defendant.
Jos. J. Goldsmith and Sachs & Cap-

If any transposition of the final words of clause second in Item I of the testator's will was necessary, it could only be from the end to the beginning of September 18, 1920, Cohen, J.-This the same clause, which would make it is an action to recover loss alleged by read "my two brick houses on New Sa- plaintiffs to amount to $2,379.84, and to lem Avenue, and two houses on North have been sustained by them because of Court Avenue exclusively to Mrs. Wil- defendants' failure to accept a carload liam H. Rodenhouse." These words of eggs shipped by the plaintiffs at San would not be transferable to the first Francisco, California, to the defendants clause containing the devise of property at Pittsburgh.