It is true, the Supreme Court, in can Caramel Company, or any of its ofSchaffhauser V. Arnholt & Schaeffer ficers or directors, to summarily void Brewing Company, 218 Pa. 298, cited by part of a contract which resulted in its defendant's solicitors, has said that, benefit, and at the same time retain, use "The president of a corporation cannot, and enjoy that benefit.

against the protest of a minority of the "Where a corporation by resolution board of directors, and as against fixes extra compensation for its officers, stockholders who choose to challenge no formal contract is required to be enthe action, sustain a claim for an in- tered into between the corporation and crease of salary, the right to which, if it the officers to fix the liability of the corexists, is secured by his own vote as a poration for payment; such a resolution member of the board which allows it," when acted upon is in itself sufficient but the facts and circumstances of the evidence of the fixed understanding becase at bar are so different from the tween the corporation and its emfacts which controlled that decision as to ployees." Sotter, et al. v. Coatesville render it inapplicable to this contro- Boiler Works, et al., 257 Pa. 412.

versy.

The same case decides that while such The adoption of the resolution of Feb-contracts may be voidable for fraud or ruary 4th, 1915, did not give Daniel F. overreaching, they are not, ipso facto, Lafean an increase of salary; it, evi- void, but will be sustained if for a fair dently, was not intended to change any and reasonable consideration. part of the resolution of December 10th, A just and fair consideration of all 1914, except that part of that resolution the facts in the case now before us, leads which had already been changed by the to the conclusion that the rights which assent of a majority of the directors who the plaintiffs have been abruptly dewere present at the meeting of Decem-prived of by the defendants, are not only ber 10th, 1914: the effect being merely the offices and the salaries incident to to ratify the change in the terms of the those offices, nor the market value of the employment by contract of the Mana-stock which they held in the R. E. Rodger, Assistant Manager, and Manager da Candy Company, but there existed a of the "York Factory," from "three" to more important interest of the plaintiffs "four" years. It was but a link in the which, together with the other elements chain of circumstances which enabled of the case which resulted from the unDaniel F. Lafean to carry out the in- conscientious actions of the defendants, structions given him, on October 21st, compelled the plaintiffs to seek redress 1914, which brought into the control of in the equity court. These interests, as the American Caramel Company the verified by the evidence, are described in "stock, assets of every nature, and busi-paragraph X (page 14) of the bill as ness of the R. E. Rodda Candy Com- follows: "The value of the debenture. pany." We fail to see by any of the evi- bonds of the defendant company agreed dence that Daniel F. Lafean ever voted upon as part of the consideration of said for an increase of salary to himself, as Rodda stock depended upon the proper appeared to be a fact in the case of management of the said American CaraSchaffhauser v. Arnholt & Schaefer, 218 mel Company, and the plaintiffs would Pa. 298.

not have agreed to the surrender of the There is nothing in the last named de- said Rodda Stock for the said debenture cision, or in any law cited by the defend- bonds, except with the assurance that the ant, which gives the right to the Ameri-business of the defendant company

should continue to be conducted by the skill, ability and experience of the said plaintiff, D. F. Lafean, as General Manager."

The Absentee Act of 1895 does not provide an exclusive method for establishing the

presumption of death, so that an audit in the Orphans' Court should not be suspended pending proceedings under the Act.

Under the Act of June 11, 1915, P. L. 945, amendment was incorporated in the Fidu

As a matter of fact, as we have ob- amending the Absentee Act of 1885, which served, D. F. Lafean's career as mana-ciaries Act of 1917, it is within the discreger of the said American Caramel Com- from evidence adduced at an audit that

tion of the Orphans' Court when satisfied

there is no likelihood of a supposed absentee

decedent being alive, to decree distribution

on refunding bonds, without security.
Audit.

R. T. M. McCready for accountant.

May 17, 1918, Over, P. J.-Mary E. Howe died unmarried, without issue and intestate on the 29th of March, 1916.

pany had been successful in decreasing the bonded indebtedness and increasing the assets of that company, and it was reasonable to expect that the corporation and its officers would keep the promises made as an inducement to get the control of the stock so acquired by Lafean. The unavoidable delays, since the She left surviving her an uncle, George prompt action by the plaintiffs, have P. Howe, and five children of a deceasrendered the full redress sought by the ed uncle. She had a brother, Wm. B. plaintiffs impracticable; so that, as the Howe, "a wanderer who went from Chancellor has suggested, the only thing place to place and was last heard from at the outbreak of the Spanish-Amerithis court can now do is to grant such can war, when he wrote his sister that reparation of the injury done to the he had been on a boat running from New plaintiffs by the unfair and unfaithful York to Cuba, and was now to take part action of the defendants as will most with the Cubans in that war." His reladequately cure the injury and comply atives never heard of him being married. with the remedy prayed for. Under the The questions here are: circumstances of this case, to do otherwise would result in great injustice to until the fact of the presumption of the the plaintiffs who have promptly and brother's death has been established by properly applied for a remedy which all procedings in the Orphans' Court under the facts show is due to them by this the Absentee Act;

Should this audit be suspended

2. If not, should refunding bonds be required of the distributees.

* * * and

In Miller v. Executors, 3 S. & R., 490, it was held that "When a person has been absent many years without being heard of * * * a jury may and ought to presume death that a legatee over of personal property on such event might recover without giving security." On page 493, Chief Justice Tilgham said, "As to the injury which might arise to John G. Schlosser by this presumption in case he should be alive, I think it ought not to be regarded. He would have his action against those to whom the money will be paid, and although he might lose by their insolvency,

Descent and distribution-Absentee-yet that would not be a greater evil than

would arise from the establishment of Presumption of death-Audit-Re- the principle that the life of a man ought funding bonds-Act of 1885-Fidu- to be presumed under circumstances

ciaries Act of 1917.

which usually attend death, merely because positive proof of death could not

8

be obtained." In Esterly's Appeal, 109 the absentee under the provisions of the Pa., 222, where under the Act of April Act of 1885;" and on page 79, that "the 11th, 1879, P. L. 21, trustees durante ab- presumption of death from absence is sentia had been appointed, Mr. Justice as effective as direct proof of the fact of Clark said (page 229) "The rule is now death, the rule being that property such well settled for most judicial purposes person would have inherited does not of whom no account can be given ends vest in him, but passes directly to others at the expiration of seven years from entitled thereto;" Esterly's Appeal, 109 the time they were last known to be liv- Pa., 222." ing," and held that A being presumed to be dead, the share of his father's estate went to A's children directly; they inherited as grandchildren, and that therefore A's creditors could not participate in the distribution of the proceeds of such share. It seems clear then that unThe next question is whether reless the Absentee Act of 1885, which has been reenacted in the Fiduciaries Act of funding bonds should be required from 1917, provided the only method of ad- the distributees. As the presumption of judicating the question of the presump-death arose before the death of the detion of death of an absentee, the ques- cedent, under Esterly's Appeal and Miltion can be adjudicated at the audit of this account.

It follows then that as the Absentee Act did not provide an exclusive method of establishing the presumption of death, this audit should not be suspended so that proceedings can be instituted under said act.

ler v. Executors, supra, it would seem to be unnecessary; but in Sherwood's EsOne of the purposes of the Absentee tate, 206 Pa., 465, it was said that the Act was to provide a method by which rights of an absentee could not be disrethe Register of Wills could grant letters garded in the distribution of his mothwhen the fact of death was not proven, er's estate; and in Maley's Executor's v. and there was only the presumption of Pennsylvania Railroad Company, supra death by reason of absence, it having (page 81), that "the question as to the been held in Devlin v. the Common amount and sufficiency of the security wealth, 101 Pa., 273, that letters so is that should be required to be entered by sued were void. In Maley's Executors the distributees entitled to the fund is v. Pennsylvania Railroad Company, 258 not before us and may properly be conPa., 73, one of the assignments of error sidered when the account of the adminThere being then was that exclusive jurisdiction to adjud-istratrix comes before the Court for disicate the fact of the presumption of tribution."

The Absentee

some

was

death was vested in the Orphans' Court doubt as to whether the provision of the under the Act of 1885, which was not Absentee's Act as to refunding bonds sustained. Mr. Justice Frazer, in dis- should not be complied with, they will cussing the question (page 78) said: be required of the distributees. Absentee Act of 1885 "The Courts have frequently since the passage of the Act of 1885 assumed jur-amended by the Act of June 11th, 1915, isdiction to pass on the question of the P. L. 945. as follows: "Provided furpresumption of death without the for-ther, however, That if the said Orphans' mality of applying for letters of admin- Court shall be satisfied from the eviistration pursuant to that Act. For in-dence adduced at the hearing to have the stance In re Petition of Mutual Benefit supposed decedent declared legally dead, Company of Penna. for dissolution, that there is no likelihood of his being Schoneman's Appeal, 174 Pa., I, the still alive, then the said Court may, at Common Pleas decided the question in a its discretion, accept refunding bonds proceeding to distribute the estate of a from the distributees of the supposed Mutual Benefit Association. In Francis decedent's estate without requiring sureWhich amendment was v. Francis & Beale, 180 Pa., 644, proof ties thereon." of death of an absentee was received in reenacted in clause H Section 6, of the the Common Pleas in an issue devisavit Fiduciaries Act of 1917, and as we are vel. non. on the will of another person, so satisfied, the refunding bonds of the the Court not deeming it necessary to distributees without security will be acawait a determination of the death of cepted.

C. P. of

Carpenter v. Wolf

Lancaster Co. the northern portion in repair. After the fence had blown down, Carpenter neither saw Wolf about it nor did he ask him to put it up. He, however, saw 'Squire Plank and told him to notify Wolf to make the fence. Plank notified

Division fence - Rebuilding of -Proceedings under Act of April 14, 1905

-When void-Notice.

A report of borough auditors as to the re

Wolf by telephone, and there having been some words between them, he told

Wolf that the auditors would have to view it. The auditors met upon the ground. They gave notice to neither building of a partition fence under the Act party of the time and place of meeting. of April 14, 1905. P. L. 162, and proceedings They viewed the fence and measured it given to and no personal attendance by the up, that is, saw the deeds of other propparty charged with the costs of repairs, and erty-owners in that vicinity. Then they judgment for defendant should be entered on appeal from the judgment of a magis

thereon are void where there was no notice

trate founded on said report.

went to Mr. Wolf's house and spoke to him about it; but the result of the interA visit of the auditors to the defendant view is not made clear by the testimony. after they had gone over the ground and They admit that no witnesses were viewed it and partially made up their de

called before them, but 'Squire Plank said they consulted with different landowners. All this was done before they Rules for a new trial and for judg-Wolf what they were going to do, but saw Wolf. Plank said they tried to tell could not. His words were: "We tried

cision, cannot be construed as a voluntary attendance and participation in the proceedings by him.

ment . o. V.

John E. Malone, for defendant and to talk business, and why he landed on rules.

S. R. Weaver and B. F. Davis, contra.

me is a question, but I had one of the worst tearings-out that I have had at the hands of any man." After they left Wolf, they proceeded to 'Squire Becker's office, and a report having been made out, they all signed it. Mr. Slater and Mr. Stoner both testified that Plank said he had looked into the matter and it was Wolf's fence to make, and, on the faith of this statement, they signed the report, which reads as follows:

April 17, 1920, Landis, P. J.-The plaintiff and defendant are adjoining property-owners, living on Main Street, in the Borough of Terre Hill. On April 17, 1917, a portion of the southern half of the fence between them blew over into the defendant's garden, and it lay there for two or three weeks. After "We, the undersigned auditors of the consulting counsel, the plaintiff sum-Borough of Terre Hill upon Complaint moned the borough auditors to come of Davis Carpenter in regards to partiupon the premises to decide who should tion fence between the properties of the fix the fence. The three auditors, who said Davis Carpenter and H. J. Wolf, a were B. Y. Plank, H. L. Slater and distance of one hundred eighty two feet Henry L. Stoner, met on the ground, and six inches from Main St. to an alley and subsequently they filed a report within the rear of said properties. H. B. Becker, Esq., a Justice of the

the plaintiff got a man

Peace. After forty days had elapsed. "The fence being in bad condition a to make the portion of which is lying down on the fence, and, having paid the costs of the property of Davis Carpenter. work, he handed the bill over to a Jus- "The probable cost of repairing would tice for collection. Judgment having be twelve dollars. been rendered in favor of the plaintiff,! the case comes before us on appeal.

It was testified that, in 1906 or 1907, the plaintiff and defendant had a conversation about the fence, and that Wolf agreed that he would fix the southern portion, and that Carpenter was to keep

"The section in dispute being the rear half to the east side of the property of said Davis Carpenter.

"According to the fences of adjoining property holders it would be the line or section of H. J. Wolf.

"In witness whereof we have here

unto set our hands and seals this 27th of March 11, 1842, P. L. 62, were reday of April, A. D. 1917.

"B. Y. Plank,

"H. L. Slater,
"Henry L. Stoner."

On May 7, 1917, a notice was served on the defendant by 'Squire Becker of the auditors' findings, and thereupon the plaintiff proceded to make the fence and bring suit against the defendant for the costs thereof, as aforesaid. Under these facts as they appeared upon the trial, the Court directed the jury to find for the plaintiff for $21.30, and reserved the question of law whether he was entitled to recover.

*

viewed by the Superior Court in Turner v. Richards, 34 Sup. 624. It was there said: "The Act of 1842 constituted the board of township or borough auditors a sort of pie-poudre tribunal with authority to investigate and summarily determine controversies in regard to the erection of division fences. The purpose of the enactment was to provide a means of disposing of such questions expeditiously and with slight cost to the parties interested. The auditors when acting as viewers have judicial functions. but do not constitute a court, nor is their decision subject to appeal. This duty of The Act of April 14, 1905, P. L. 162, the auditors has for a long time been provides: "That from and after the looked upon with favor by the legislapassage of this Act, owners of improved ture and the courts, and the statute reand occupied land shall erect and main-lating to their action should be intertain an equal part of all line or division preted as far as possible in support of fences between them, nor shall any such their proceedings. No particular form owner be relieved from liability under is made essential to the validity of their the provisions of this Act except by the report, and it has, therefore, been held consent of the adjoining owner. And if that, where their duty has been substanany owner of such improved and occu- tially performed, their certificate should pied land shall fail or neglect to erect or have all the force intended by the statmaintain his, her or their share of such ute: Shriver v. Stephens, 20 Pa. 138. line or division fence, the party ag- * * Under the Act of 1842, they were grieved shall notify the township or bor-directed to view and examine the fence ough auditors, whose duty it shall be to and to make out a certificate in writing, examine such line or division fence, so setting forth whether in their opinion complained of; and if they find said the fence, if one has already been built. fence sufficient, the complainant shall is sufficient, and if not, what proportion pay the costs of their services, which of the expense of building a new or reshall be two dollars for each day's ser- pairing the old fence should be paid by vice; but if they find such fence insuffi- each party. They were also to set forth cient, they shall so report to a Justice of the sum which each party ought to pay the Peace, residing in the county where to the other in case he shall repair or resuch fence is located, designating points build his portion of the fence and a copy and distances of such fence, whether a of this certificate was to be delivered to new fence is required or whether the old each of the parties. The Act of 1905 reone can be repaired, and the probable quires the viewers to examine the diviscosts of a new, or the repair of the old ion fence, and if they find it insufficient, fence; and said Justice shall notify the they are to report to a justice of the delinquent owner of such improved and peace residing in the county whether a occupied land of the auditors' report, new fence is required or whether the old and that his part of said fence, as found one can be repaired, and designate by the auditors, be erected or repaired points and distances of such fence with within forty days from the date of such the probable cost of a new fence or the notice; and if such notice be not com- repair of the old fence. The justice is plied with, the aggrieved party may required to notify the delinquent owner cause said line or division fence to be erected or repaired, and the costs thereof collected from the delinquent owner of such improved and occupied land, as other debts are collected by law."

This Act and its predecessor, the Act

of the auditors' report, and if the latter fail to erect or repair, as the case may be, within forty days from the date of such notice, the aggrieved party may cause the fence to be erected or repaired and the cost thereof collected from the