IN RE ESTATE OF SALLIE ADAMS, WEAK

MINDED.

Weak-minded Person-Sale of Real Estate-Notice-Acts of June 13, 1836, P. L. 589; June 25, 1895, P. L. 300; May 28, 1907, P. L. 292; and April 27, 1909, P. L. 185.

A step-brother is qualified to file exceptions to a sale of real estate, on behalf of minor children who have no guardian.

The Act of May 28, 1907, P. L. 292, Sec. 6, provides for appointment of guardians of insane persons, feeble-minded persons and epileptics, who shall have the same powers as a committee in lunacy under the Act of June 13, 1836, P. L. 589.

The Acts of June 25, 1895, P. L. 300, and of April 27, 1909, P. L. 185, were passed to include those in the twilight zone between sanity and insanity.

An order for the sale of real estate of a weak-minded person should not be granted, without notice to the next of kin, as provided by the Act of 1836 as to lunatics, etc.

In the Court of Common Pleas of Lehigh County. No. 148 April Term, 1918. In re Estate of Sallie Adams, a weak-minded person. Rule to show cause why the sale made on a prior order should not be set aside. Rule absolute.

Edwin H. Stine, for Exceptant.

Thomas F. Diefenderfer, for Purchaser.

Henninger & Henninger, for Petitioner, contending that, as the Act of 1907 provides for a sale of real estate without providing for any notice to next of kin, its provisions alone controlled.

Groman, P. J., September 15, 1919. This court, on January 25, 1917, declared Sallie Adams a weak-minded person, unable to take care of her property, and the Allentown Trust Company appointed guardian. On June 2, 1919, a petition was presented, praying for an order of sale, for the sale of certain real estate in Salisbury Township, County of Lehigh and State of Pennsylvania, of which Sallie Adams was seized in her demesne as of fee. Under the facts as alleged in the petition, the court awarded an order of sale; a return was made thereto on July 7, 1919, and the same confirmed nisi. The return set forth that the real estate had been exposed to sale, and sold to W. J. Merkel for the sum of $3275.00, he being the highest bidder, and that was the highest and best price bidden for the same. Exceptions to the confirmation

absolute on behalf of the minor children of Sallie Adams, were filed on July 15, 1919, by George W. Moyer, a halfbrother of Sallie Adams. The exceptions set forth that the price of $3275.00 was grossly inadequate, that the market value was in excess of said sale, that the order of sale granted, defective in law, was granted without authority, and that the purchaser acquired no title to the realty thereunder. A petition for a rule was presented July 15, 1919, which in addition to the foregoing facts, alleged that the minor children of Sallie Adams had no guardian to represent them on June 2, 1919, when the order of sale was asked for and allowed. A rule to show cause why the sale made to W. J. Merkel should not be set aside, was granted; answers were filed by all parties in interest, and after argument, the matter is now before us for final disposition on the record as made.

The right of George Moyer, a half-brother, to file exceptions on behalf of the minor children who have no guardian, has been questioned. A so declared weakminded person is in the case and charge of the court; and the estate of such person is in the custody of the law: Guthrie's Appeal, 16 Pa. St., Page 321; Shaffer v. List, 114 Pa. St., Page 486; Hambleton's Appeal, 102 Pa. St., Page 50. The relationship existing between the exceptant and Sallie Adams is close enough to justify the action taken by the exceptant on behalf of the minor children. We must not be too technical where the interests of unrepresented minor children are concerned; we cannot adopt the view questioning the right of the step-brother, George Moyer, to file exceptions to the confirmation of the sale, or present a petition for a rule to show cause why the sale should not be set aside.

The Act of 13th June, 1836, establishes a mode of procedure whereby a committee could be appointed to take care of the person or estate of a lunatic or a habitual drunkard, and also fixed the duties and powers of the committee relative to the sale or mortgaging real estate. The Act, however, failed to include the class of persons in the twilight zone between sanity and insanity; to reach such persons, the Act of 25th June, 1895, the title of which reads: "An Act for the protection of persons unable to care for their property," was passed and a supplement thereto under the Act of 27th April, 1909.

The decisions of the higher courts relative to the construction to be placed upon the above acts are both illuminating and instructive: Mitchell, Appellant, v. Spaulding, 20 Pa. Sup. Ct., Page 296 (1902); Mitchell v. Spaulding, 206 Pa. St., Page 220 (1903); Hoffman's Estate, 209 Pa. St., Page 357 (1904); Briden's Estate, 211 Pa. St., Page 633 (1905); Colt's case, 215 Pa. St., Page 333 (1906). The Act of 1907 was passed to include the mentally unfortunate, as also epileptics. We thus have in the Acts of 1836 and 1907 a mode of procedure provided for the care of the mentally unfortunate, and also defining the duties and powers of those having the care and management of the estate of such persons; and also a procedure under the Act of 1895 and the supplement of 1909. Whether the proceedings herein were instituted under the Act of 1907 or 1895 and supplements, the record fails to disclose. My attention has not been called to a similar proceeding in our court; in fact, we are of the opinion this is the first proceeding of its kind. The rights of such weak-minded persons and of those whose estates are in the custody of the court, ought to be jealously and carefully guarded and administered. The Act of 1907, Section 6, provides "that guardians so appointed shall have precisely the same powers, and be subject to the same duties as a committee in lunacy in the State of Pennsylvania." The Act of 1836, being the Act referred to under which a committee in lunacy may be appointed in the State of Pennsylvania, provides for the sale and mortgage of real estate, and what the requirements of the application for an order of sale must show. Section 24 of the Act further provides "that no order for the sale or mortgage of real estate as aforesaid, shall be granted unless it appear that due notice of the intended application was given to the wife, if any, and the next of kin of the lunatic or habitual drunkard, capable of inheriting the estate." We thus have the powers and duties of a committee under the Act of 1836, imposing upon and made a part of proceedings under the Act of 1907. This record, however, fails to show such notice to the next of kin; "this requirement is not merely directory; it absolutely prohibits the making of the order unless the provisions of the section have been complied with:" Mitchell, Appellant, v. Spaulding, 20 Pa. Sup. Ct., Page 296;

Mitchell v. Spaulding, Appellant, 206 Pa. St., Page 220. The requirements of the Act of 1836 as to notice to the next of kin not having been complied with, the order of sale made, and all proceedings thereunder will have to be set aside. The court is of the view that it would be to the best interests of the minors if the real estate were converted into money if at all possible to do so; we have no doubt counsel for the guardian will proceed to do so. It is not necesssary to discuss the other exceptions filed.

Now September 15, 1919, order of sale heretofore granted, and all proceedings thereunder, are hereby set aside.

BISHOP v. BISHOP.

Divorce-Counsel Fees-Attachment.

An attachment to compel the payment of counsel fees in a proceeding in divorce will be refused.

In the Court of Common Pleas of Lehigh County. No. 93 January Term, 1918. Helen Bishop, also known as Katharine Helen Bishop, v. George M. Bishop, also known as Morris George Bishop. In Divorce. Rule to show cause why an attachment should not issue against respondent to compel obedience with an order directing the payment of counsel fees. Rule discharged.

Dillinger & Cutshall, for Libellant.

William H. Schneller, for Respondent.

Groman, P. J., April 28, 1919. A rule to show cause why an attachment should not issue against the above respondent, to compel obedience and compliance with the order and decree made by the court December 2, 1918, directing respondent to pay the libellant the sum of $150 as and for counsel fees pendente lite, was allowed in the above proceedings in divorce. An answer was filed to the rule, and the matter submitted to the court on briefs of counsel.

The general practice in this county has been not to encourage the issuing of attachments for the purpose indicated in this proceeding. In Merrington v. Merring

ton, 12 D. R., page 384 (1903), C. P. Allegheny County, McFarlane, J., in disposing of a similar rule, used the following language: "The question whether a decree for payment of costs in a divorce case may be enforced by attachment has been decided in the negative by this court in many cases for many years, such attachments have been issued by some of the courts of the state and we do not wish to add to the number of reported cases upon the subject, and this opinion is written so that the members of the bar may know our rule, and in the hope that either this case or another may be carried to a higher court for final adjudication.

So far as we can find, neither the Supreme or the Superior Court, has directly passed upon the question, although such cases as Church's Appeal, 103 Pa. 263, and Pierce's Appeal, 103 Pa. 27, seem to cover the principle involved."

The above citation expresses our views so squarely that we can add nothing to it.

Now April 28, 1919, Rule discharged.

SYKES DEPARTMENT STORE v. PENNSYLVANIA RAILROAD COMPANY.

Trespass-Fictitious Name-Right to Maintain Action-Act

of June 29, 1917, P. L. 645.

A person who carries on a business under an assumed or fictitious name without having filed the certificate required by the Act of June 28, 1917, P. L. 645, is unlawfully carrying on said business.

The law will not support a claim based upon its own violation. An action founded upon a transaction connected with such business cannot be maintained.

Affidavit of defense on question of law. C. P. of Cameron County.

Nelson L. Allen, for plaintiff.
J. C. Johnson, for defendant.

July 18, 1919. Opinion by McCormick, P. J.

Fanny Sykes, doing business as Sykes Department Store, brought her action against the Pennsylvania Railroad Company for an alleged breach of contract in the transportation of certain merchandise from the City of