Adjudication. O. C. of Lancaster | casion may require." The reason of the County. May Term, 1912, No. 2. Coyle & Keller, for accountant. M. E. Musser, for Commonwealth. March 29, 1914. By SMITH, P. J. James Murray died intestate March 30, 1912. He left twenty-four collateral heirs, who have been found in England, Ireland, Canada and the United States. The inventory of his estate amounted to $87.30, to which was added $23.80 found on decedent's body." Most of his real estate was sold for the payment of his debts, but there was a balance in the administration account, exhibited April 19, 1913, of $613.18, which was distributed by a decree of this Court filed June 16, 1913. Of this amount, after deducting claims and collateral inheritance tax, there remained for the heirs $464.72. A piece of unproductive real estate has since been sold. The account of the trustee in partition who effected this sale is before the Court. It shows a balance of $708.70. The Commonwealth of Pennsylvania now injects what purports to be an appraisement for collateral inheritance tax purposes, which was filed July 5, 1913. This before unheard of, unnecessary, unlawful and expensive ex-parte creation of the Commonwealth's officer is as follows: "Personal Property "Cash on hand $3.311.10." The instrument does not sustain its pretensions; and by what authority may an official of the Commonwealth place in the Court files even an actual appraisement of his own initiative? It inay be said that the Act of May 6, 1887, P. L., 79, does not require notice to be given to the parties of an appraisement to be made for collateral inheritance tax purposes, and it may also be said that nowhere in the Act can be found authority to the Register on his own motion to rder an appraisement. Section 12 of the Act provides that, "It shall be the duty of the register of wills of the county in which letters testamentary or of administration are granted to appoint an appraiser, as often as and whenever oc silence of the Act as to notice is apparent. Only the parties representing or receiving the estate have any reason to move for an appraisement. There is no occasion for the Commonwealth to do it. All the time it is protected and amply, better and more fully if there be no appraisement. When the occasion requires it those representing the estate may apply to the Register, the Commonwealth's agent, for an appraisement, when an apprasier is appointed by him and all parties are then informed as to the procedure. How can an occasion arise requiring the Commonwealth to move for the appointment of an appraiser? It is always on the safe side. There is no reason why a dollar should be lost to it nor are its officials subjected to any inconvenience. If there has been no appraisement an award of the tax follows computed on the actual balance. Automatically the tax flows into its treasury, at least such are the conditions prevailing in this jurisdiction. While if there had been an appraisement, especially of real estate, the Commonwealth is bound by it, even if the property is worth and sells for double or treble its appraised value. If, perchance, there should be an award to which exception might be taken the Commonwealth has the same opportunity to investigate and have a mistake corrected that any of its citizens has. Our observation has been, however, that the Commonwealth has received not less but more than was justly due it. We have been obliged to call attention to overpayments to it. The Act provides that, " All owners of such estates, and all executors and administrators and their sureties, shall only be discharged from liability for the amount of such taxes or duties, the settlement of which they may be charged with, by having paid the same over for the use aforesaid," the use of the Commonwealth. The tax on real estate is a lien on it. The Register is authorized to cite executors and administrators to file an account, or to issue a citation to them or the heirs to show cause why the tax should not be paid, and to en *** force payment if "the tax shall have re-ity to order an appraisement for colmained due and unpaid for one year." lateral inheritance tax purposes unless In the case of a "specific legacy or arspecific legacy or ar- there is an occasion requiring it. ticle" the executor may not pay or NOTE.-See following case. deliver" it until the legatee shall have paid the tax "on the appraised value thereof." But the Commonwealth is not interested in having the appraised The Estate of Elizabeth J. Zell Deceased. ment. The Register of Wills has no authority to order an appraisement for collateral inheritance tax purposes, except when occasion requires it at the request of parties representing or receiving the estate. value put thereon, only the legatee is Collateral inheritance tax-Appraiseconcerned, for if he does not pay the tax the executor may not pay him. Commonwealth's officers can complacently look on, because, if the legatee does not ask for an appraisement the executor, therefore, can not pay him, and the Commonwealth will receive the tax computed not on an appraised valuation but upon the actual value of the legacy; for it then becomes the duty of the executor to sell it at public sale and out of the proceeds pay the Commonwealth. No contingency has been suggested whereby the Commonwealth can suffer by reason of there having been. no appraisement. Why, therefore, should the Commonwealth employ counsel to constantly make an unwarranted demand for twelve per cent interest on the collateral tax from the time of the death of the one whose estate is settling as a penalty be- | cause more than a year has elapsed since the death? Why require the Register to put in the files a paper designated a collateral appraisement when there is no occasion for such an appraisement? Why thus toll the treasury of the Commonwealth?' While there is here a paper called a collateral appraisement, its face belies its name. There was no real appraisement, nor was there any occasion for one. There is no law to justify such an appraisement. There is no penalty to be imposed; but at the first audit there might have been some foundation for an argument supporting interest amounting to thirteen cents on the tax. Whether in the past any interest due the Commonwealth has been overlooked we are unable to say, but if so, the attention of the Court was not called to it, and that only was necessary for the Commonwealth to get all to which it was entitled. The Register of Wills has no author Adjudication. O. C. of Lancaster Elizabeth J. Zell died testate July 25, 1913. The following is a copy of her will: First, My home property to my brother, Dr. William R. Zell, to my brother, Doctor D. D. Zell, the two-acre lot, at my brother's death to his son William; To my brother, Doctor E. M. Zell, 300 dollars, at my brother's death the 300 dollars goes to the Methodist Church Bethel; to my brother, S. A., 500 dollars; My organ to my brother William, my red and white Counterpane to my brother S. A. Zell, to my brother E. M. Zell my white Counterpane, to my brother, D. D. Zell, my small Star quilt. They have all taken the premium at the fair. All my nice quilts, my large silver spoons, and small silver spoons, my linen table cloths and books and trinkets are all to be divided among all my dear brothers, my gold watch to my brother William, my gold medalia and chain and my gold heart to my brother S. A. Zell, Mother's gold specks to D. D. Zell, my gold specks to my brother William. The money I have on interest in the Farmer's National Bank of Oxford is $753.32. My brother, Doctor E. M. Zell is to be paid his 300 dollars out of my money in the Bank. All my funeral expenses and the remainder of my money in the bank is to be equally divided among all my dear brothers; My horse and cows and poultry goes towards keeping up the farm, everything else to remain as they are." In the opinion in the estate of James A. Murray, deceased, in the Orphans' Court of Lancaster County to No. 2, May Term, 1912, it was held that the Commonwealth of Pennsylvania had no authority to move for the appointment of an appraiser to appraise the estate of a decedent for collateral inheritance tax purposes. It has been the practice for the Register of Wills acting as the agent of the Auditor General of the Commonwealth to have filed what is called an appraisement on which the Commonwealth has required the collateral inheritance tax to be computed; and which has proved in this jurisdiction to be a loss in tax to the Commonwealth, in addition to being an unwarranted devastation of the Commonwealth's treasury by reason of costs and expenses. Advisedly the appraisement is referred to as "filed" because it is placed among the Court records without the knowledge or approval of any interested party. As it usually is to the advantage of those to whom the estate descends and the Commonwealth both creates and foots the bills little exception has been taken to the practice. This estate is an illustration. As appears by the appraisement filed the value of the personalty is $255.50, the credits amount to $344.80, therefore no tax is owing on the personalty. The account shows a balance of $827.56, therefore, except for the appraisement insisted upon by the Commonwealth, and which we believe was unwarranted, to the Commonwealth would have been awarded $41.38 collateral inheritance tax. Not only is this lost to the Commonwealth, but for the privilege of forfeiting it a considerable bill of costs is paid by it in addition to counsel's salary, which at a low estimate is not less than a thousand dollars. Of course, if he is not paid a salary, but for his services in each case his compensation would ex ceed this amount. The question may be asked, if the Court is of the opinion that the Commonwealth has no authority to move for an appraisement for collateral inheritance tax purposes, and having done so it has acted unlawfully, and notwithstanding it persists in the practice, why not award to it the $41.38 to which it appears to be entitled? The answer is that the Commonwealth, no doubt for the purpose of appearing consistent, makes no claim, denies that it has a claim, and for the further reason that we believe a more satisfactory result can be reached if exceptions be taken to the decree and a searching argument be had upon it. A * NOTE. See preceding case. * Tegal Miscellany. Book Notice. * HANDBOOK OF STOCK EXCHANGE LAWS. By Samuel P. Goldman. Published by Doubleday, Page & Co., New York. 1914. This book, by a well-known member of the New York Bar, who has made a special study of the Stock Exchange, is intended mainly for the use of stockbrokers as a guide to point out their duties and responsibilities in the pursuit of their occupation. It will, however, be found useful as well to define the rights and privileges of those having dealings with them, and to members of the bar having occasion to use a ready book of reference in which to find leading cases and principles rather than an exhaustive treatise on the law of the Stock Exchange. The work includes the constitution and rules for the government of the Exchange as amended to January 1, 1914, also a complete index, etc. This convenient little hand-book will throw the light where it is needed to dispel misunderstanding and prejudice, and establish the usefulness of the Stock Exchange. LANCASTER LAW Review. of trust or contract between the parties to this suit, and therefore the court had no jurisdiction to make the decree en VOL. XXXI.] FRIDAY, MAY 8, 1914. [No. 27 tered in this case.” Superior Court. Davis, Appellant, v. Willig et al. Line fences-Possession-PrescriptionInjunction-Cross bills-Practice. A defendant in a bill in equity who relies on the equities of the case for anything beyond a defense and seeks affirmative relief, must file a cross-bill which, when it relates to the subject matter of the original bill, must also be considered in disposing of the case. Where a plaintiff files a bill to enjoin the defendant's who own adjoining land from interfering with his moving the line fence to a new line to which he claims title and under protection of the preliminary injunction moves the fence, and they file a cross-bill claiming title to the intervening strip of land and show that the fence had stood for more than twenty-one years at the original location, the plaintiff's bill will be dismissed and he will be enjoined from interfering with the defendant's putting the fence back, they being entitled to retain possession until the plaintiff establishes his title in a court of law. Appeal No. 305 of October Term, 1913, by plaintiff, B. F. Davis, from decree of C. P. of Lancaster Co., sitting in equity, dismissing the plaintiff's bill and enjoining the plaintiff from changing the position of the line fence between the properties of the defendants and himself. Affirmed. (See 29 LAW REVIEW, 347.) L. N. Spencer, C. E. Montgomery and B. F. Davis, for appellant. The decree of the Court below in this case was an adjustment on its part of a disputed boundary line between the parties to the suit, and also a conclusion that the plaintiff trespassed upon the defendant's lot, the defendant claiming a portion of it by adverse possession and the other by a question of disputed boundary. The Court below had no authority or jurisdiction to do this unless the questions at issue were determined by an action at law. The fence erected by the plaintiff, which is the subject of the dispute, is on a line with the middle of the division or party wall between the houses and as called for by the plaintiff's deed and survey. This whole question was settled by the Supreme Court in Medara, Appellant, v. DuBois, Syllabus, 187 Pa., 431: "A party wall is a permanent monument which fixes the location of a boundary line within the meaning of the wellestablished rule, that monuments on the ground must prevail over ments." measure Mistakes or error in finding of facts will be corrected by the Appellate Court. Keller v. Swartz, 137 Pa., 65. "A deed containing a recital of another deed is evidence of the recited deed against the grantor and all persons claiming by title derived from him subsequently." Penrose v. Griffith, 4 Binney, 231. Downing v. Gallagher, 2 S. & R., 455. Hancock v. McAvoy, 151 Pa., 439. "Recitals of title in a deed more than thirty years old, where possession accompanied the deed, are prima facie evidence against persons claiming by title under the grantor previous to such deed." On appeal, the errors assigned were [1-21] the action of the court below, Hassler, J., in overruling each of the plaintiff's fourteen exceptions, the answer to the plaintiff's first request for findings of law, the final decree, the answer to the defendants' 10th, 11th and 12th request for findings of fact, and the action of the court below "in making a decree against the plaintiff allowing the defendants to move back his fence, etc., and in locating a boundary line between the plaintiff and the defendants, as the same had not been determined by any action at law, and there was no relation | 455. James v. Letzler, 8 Watts & Sarg., 192. Burkhart & Welles v. Bucher, 2 Bin., Riffin v. Henderson, 70 Pa., 275. No reference is made in any of the deeds to a fence, and it is not a monument controlling the description in the deeds. Breneiser v. Davis, 134 Pa., 1, and 141 Pa., 85. A claim by prescription or adverse possession has no standing in a court of equity. Deppen v. Borgar, 7 Super., 434. The prior title of the plaintiff must prevail. A division fence of more than twenty- Stuven v. Kalchreuter, 8 W. N. C., 44. When a vendor does nothing to show J. that his possession after conveyance was adverse, he is trustee for the vendee. Ingles . Ingles, 150 Pa., 397. The testimony amply supported the The controversy in this case grows out of a dispute in regard to the title to a strip of land four and one-half inches in width, along the boundary line, beland in the city of Lancaster. Accordtween the plaintiff's and defendants' ing to all the deeds offered in evidence, the dividing line between the lots is a straight one from the front to the rear street lines. During the progress of certain improvements on the plaintiff's property, a dispute arose as to the true location of the line, and an alleged party-wall privilege. The appellant concedes that the question raised is purely a legal one under the facts. The plaintiff removed an old fence and began the erection of a new one on a slightly different location; this the defendants removed and replaced it on its old situation between the two properties. This was the physical condition on the ground when the plaintiff obtained a preliminary injunction to restrain the defendants from interfering with him in erecting a fence, which he alleged, and defendants denied, was on the boundary line between their respective properties. While this injunction was in force, the plaintiff reinstated the fence to the location he had originally given it, when the defendants filed a cross bill to compel the plaintiff to restore the fence to the posi30 tion it was in when the original bill was filed. R. R. Co. v. Ry. Co., 193 Pa., 641. Lazarus v. Coal Co., 221 Pa., 415. Graver v. Otto, 23 C. C. R., 227. The property defined in the cross bill Canal Co. v. Turnpike Co., 11 C. C. related to the same subject-matter as R.. 582. Washburn's Appeal, 105 Pa., 48. that described in the original bill, and the rights of the plaintiff in that bill, the defendants herein, are determined in |