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Md.)

LAUREL CANNING CO. V. BALTIMORE & O. R. CO.

127

shown in this case. If the inability to have of the lives, liberties and estate of the peothe case tried be the result of sickness of ple," and other provisions of the Constituthe judges, or other causes which the parties tion, but nothing in them prevents the court could not control, another question would from adopting rules requiring trials of cases arise, but, as we have said, no such cause within a reasonable time. A suitor may is shown, and it could not well be that one have the right of a jury trial guaranteed or more of the three judges of that circuit him, but, if a plaintiff does not file his deccould not hear the case during the period laration as required by the rules of court, of two years. If all of them had been dis- the case may be non prossed, or, if a dequalified, the case could have been removed fendant does not file his plea as required for that reason to another circuit under the by such rules, judgment by default may be provision of the Constitution. As shown by rendered against him. If that were not so, the record, the rule was adopted by Judge courts would not only be helpless in the conMiller, who was then a member of this duct of their business, but parties would court, and by Judges Jones and Roberts, oftentimes be subject to great annoyance each of whom afterwards became such. A and injustice if the courts could not make very similar rule has been in effect in some and enforce such rules. If a case is on the of the other counties of the state for a num- trial docket and the rules or practice of the ber of years, and the writer of this opinion court require trial at a particular time, or as knows of one that was originally adopted reached on the docket, there can be no doubt by Judge Alvey and his associates in the cir- that the court can enforce its rules and incuit over which they presided, and there sist upon trial, although it may result in the may have been others. While this court has plaintiff being required to non pros. his case. not heretofore .been called upon to consider Indeed, if the rule so provides, it is the duty the validity of such a rule, we approach its of the court to enforce it, unless there be consideration with the knowledge that at sufficient cause shown for continuance or othleast four of its former members have given er disposition of it. A defendant might intheir sanction to such rules by the adoption sist upon trial if he has the right to do so, of them, and that under one of our own and if instead of doing so he agrees that the rules (28 (80 Atl. xii]) it is provided that no case can be put on the stet docket, and there case will be continued beyond the third term is such a rule as this, he has the right to after the transmission of the record to this assume that, unless the case is brought up court, unless by leave of the court, and that, for trial in accordance with the rule, it will “unless such leave be obtained, the case shall be abated at the expiration of the time. A not be placed on subsequent court dockets plaintiff has rights, but a defendant has also, without an order of the court, and upon the and if the latter consents to a case going on expiration of three terms of court after it the stet docket, or does not demand trial beis so dropped the appeal shall be dismissed, fore it is placed thereon, is he, notwithunless otherwise ordered by the court, be- standing such a rule as this has been adoptfore the expiration of the third term." By ed and is supposed to be in force, to be subsection 1 of article 26 of the Code it is jected to trial at any distant date the plainprovided that "the judges of the several tiff may demand it? His witnesses might courts of law and of equity may make such be dead or beyond his reach. rules and orders from time to time for the [2] It cannot, therefore, be said that it is well-governing and regulating their respec- an unreasonable provision to require trial tive courts and the officers and suitors there during one of eight terms after a case gets of, and under such fines and forfeitures as on the trial docket in a county of the size they shall think fit, not exceeding twenty of Howard. The plaintiff could have renewdollars for any one offense, all of whiched the suit even after it had abated, and fines shall go to the state.”

could then have enforced it if his own delay [1] Of course, we understand that the pow. had not permitted sufficient time to elapse er to make rules would not authorize a to make it subject to the statute of limitacourt to adopt one which was contrary to a tions. constitutional provision or a statute (unless [3] It may be said that the defendant could the Constitution had authorized the court have had it brought forward from the stet to adopt it in such terms as could not be docket, but, if the plaintiff was willing to limited by the Legislature) or could take have the case remain on the stet docket away from a party litigant a right positively for the length of time the rule provided, the secured by law. The appellant cited article defendant is not required to take steps to 19 of the Declaration of Rights “that every have it brought forward. We are not inman, for any injury done to him in his performed by the record whether there are othson or property ought to have remedy by the er rules of court which could save a case course of the law of the land, and ought to from abating, if it be placed on the stet have justice and right, freely without sale, docket to await the decision of other cases fully without any denial, and speedily with involving similar questions, or because it had out delay, according to law of the land," and been enjoined, or for some similar reason, article 20, “that the trial of facts, where and no such question is presented in this they arise, is one of the greatest securities i case, but, taking the record as we find it,

the case was apparently permitted to remain , 2. LIMITATION OF ACTIONS (8 73*)-DISABILIon the trial docket for four successive terms,

TIES. and then, without any special reason, was ried woman against her husband on a note, the

In an action by an administrator of a marpermitted to remain on the stet docket for period of the wife's coverture is properly exmore than four terms. So, without consider- cluded in ascertaining the time at which the ing it from any other standpoint, we are of presumption of payment on the note arose. opinion that the rule as applicable to the Actions, Dec. Dig. $ 73.*]

[Ed. Note. For other cases, see Limitation of present case is a reasonable one, and within the power of the court to pass.

Appeal from Court of Common Pleas,

Franklin County. We find nothing in the authorities cited

Action by Arthur W. Gillan, administrator, by the appellant in conflict with that conclu

Judgment for sion. The case of Hoyer v. Colton, 43 Ma. against Thomas H. West.

Affirmed. 421, so much relied on, was altogether dif- plaintiff, and defendant appeals. ferent from this. The constitutional provi At the trial it appeared that Clara A. Funk sion then under consideration gave the right and Jacob R. Funk were husband and wife, to have the record removed to some other and that the latter made the note in suit, court, “whenever any party to such cause, dated April 1, 1881, in the sum of $3,500, or the counsel of any party, shall make a payable to Clara A. Funk. Mrs. Funk died suggestion, in writing, supported by the affi- on April 13, 1893. In December, 1906, Jacob davit of such party or his counsel, or other R. Funk was adjudged a weak-minded perproper evidence, that the party cannot have son, and Thomas H. West was appointed his à fair or impartial trial in the court in guardian. The action was brought on June which such suit or action * + is pend- 11, 1909. There was evidence that Mr. and ing." The Legislature passed Act 1874, c. Mrs. Funk lived together until the wife's 94, providing that “in all civil cases where death. an order for removal shall have been passed Plaintiff presented this point: "If the jury in any cause, the party upon whose motion believe from the evidence that plaintiff's said order was passed shall pay or tender | intestate, Clara A. Funk, was the wife of to the clerk of the court in which said cause Jacob R. Funk, the ward of the defendant, was pending at the time of said order for from the date of the note sued on, April 1, removal the costs of the record in said case, 1881, until April 13, 1893, the date of her within sixty days after the passage of such death, then, under all the evidence in the order, and shall cause the said record to be case, your verdict should be for the plaintiff." transmitted to the court to which the same Answer: "We affirm that point." was ordered to be removed within said sixty Defendant presented this point: "That days.” And upon failure so to do the court under all evidence in this case the verdict had the power to strike out the order for re- must be for the defendant.” Answer: “This moval and reinstate the case. This court point we decline to affirm." held that such conditions were a restraint Argued before FELL, C. J., and BROWY, upon the constitutional right of removal, MESTREZAT, POTTER, and STEWART, JJ. which the Legislature had not the power to Walter K. Sharpe, 0. C. Bowers, W. T. impose, but we cannot understand how that Omwake, and Irvin C. Elder, for appellant. in any way reflects upon the question now Charles Walter and D. Watson Rowe, for before us. If a court adopted a rule which

appellee. undertook to deprive a party of a jury trial, if he was entitled to it under the Constitu. POTTER, J. [1] The substantial question tion, of course, it would be invalid, but it raised by this appeal is as to the right of does not follow that it cannot by its rules the wife to bring suit upon a promissory require pleadings to be filed or cases to be note against her husband during coverture. tried within reasonable times. If courts This question was distinctly answered in could not so require, the one party to a suit the negative in Small v. Small, 129 Pa. 366, would be at the mercy of the other, as we 18 Atl. 497. And the ruling was followed in hare pointed out above.

Kennedy v. Knight, 174 Pa. 408, 31 Atl. 585, Order affirmed, the appellant to pay the where it was said in an opinion approved costs.

by this court that on the authority of Small

v. Small, supra, the principle that a married (232 Pa. 74)

woman cannot bring suit against her husGILLAN v. WEST.

band while they are living together is to be (Supreme Court of Pennsylvania. May 23,

regarded as firmly established. 1911.)

[2] It was also held in the same case that 1. HUSBAND AND WIFE ($ 203*)-ACTioxs BE- the statute of limitations does not run against TWEEN.

the claim of the wife during coverture. In A wife cannot sue her husband on a note Act June 8, 1893 (P. L. 314) § 3, it is exduring coverture.

[Ed. Note. For other cases, see Ilusband and pressly provided that a married woman may Wife, Cent. Dig. $$ 744-748, 755; Dec. Dig. s not sue her husband, except “in proceedings 205.*]

for divorce, or in a proceeding to protect or

Pa.)

IN RE MIFFLIN'S ESTATE

129

recover her separate property whensoever he produce a favorable result." Clay v. Westmay have deserted or separated himself from ern Maryland R. R. Co., 221 Pa. 439, 70 her without sufficient cause, or may have Atl. 507. Of the numerous shots fired in neglected or refused to support her." As this case, not one has hit the decree. It the present case falls within none of these has escaped all of the assignments, and we exceptions, the trial judge was entirely right must, therefore, assume it to be correct. in excluding the period of the wife's cover- Johnston's Estate, 222 Pa. 514, 71 Atl. 1053. ture in ascertaining the time at which the If it is right, it is of little moment what led presumption of payment upon the note in up to it. Fullerton's Estate, 146 Pa. 61, 23 question arose.

Atl. 321. And, as it is the wrong from which The assignment of error is overruled, and the appellant suffers, if it was improperly the judgment is affirmed.

made, it must be assigned as error. Seltzer v. Boyer, 224 Pa. 369, 73 Atl. 438.

The appeal is dismissed, at appellant's (232 Pa. 64)

costs, and the decree affirmed, without prejuSTANDARD SOAP & OIL CO. V. PRINTZ dice to its right to bring an action at law DEGREASING CO.

for the recovery of the $300 paid on February (Supreme Court of Pennsylvania. May 23, 20, 1907, for 50 tons of oil which were never 1911.)

delivered.
APPEAL AND ERROR ($ 719*)-ASSIGNMENTS OF
ERROR-FINDINGS OF FACT.
Where all the assignments of error on an

(232 Pa, 25) appeal in equity are directed to findings of fact, and not one to the decree, the decree will

In re MIFFLIN’S ESTATE. be affirmed.

(Supreme Court of Pennsylvania. May 17, [Ed. Note. For other cases, see Appeal and

1911.) Error, Cent. Dig. § 2906; Dec. Dig. 8 719.*]

1. WILLS (687*) - CONSTRUCTION - ESTATE Appeal from Court of Common Pleas, Phil CONVEYED. adelphia County.

Where a will gave the property of testatrix Bill by the Standard Soap & Oil Company should receive one-seventh of the income with

in trust to her seven children, so that each against the Printz Degreasing Company. out liability for debts during his or her life, From a decree dismissing the bill, plaintiff and, on the decease of any of her children leav- ,

ing issue, the issue were to take the proporappeals. Affirmed.

tionate share of the parent in fee simple, and, Argued before FELL, C. J., and BROWN, on the death of any of the children without isMESTREZAT, POTTER, ELKIN and sue, the income of the child so dying was to be MOSCHZISKER, JJ.

divided equally among the surviving children,

the issue of any child who might then be dead to Jacob Singer, David Bortin, and Emanuel take the part their parent would have taken if Furth, for appellant. Gordon A. Block and all respects as parts of their original shares,

living, “such accruing shares to be regarded in Clinton 0. Mayer, for appellee.

both as to the enjoyment and transmissions

thereof," the quoted clause referred to the BROWN, J. The main prayer of the bill shares originally taken by the children, and not

to the shares coming to the grandchildren filed by the appellant in the court below was through the death of childless uncles and aunts. for the specific performance of a contract [Ed. Note.For other cases, see Wills, Dec. with the appellee. Under two facts found Dig. $ 687.*] by the learned chancellor he concluded that 2. WILLS (3 687*)-CONSTRUCTION-PARTICUthe appellee was justified in canceling the LAR WORK—“ACCRUE." contract and dismissed the bill. If these

In a will which provides that on the death

of any of the testatrix's children without leavfacts were properly found the decree inevita- ing issue the income of a child so dying was to bly followed.

be divided equally among the surviving children Counsel for appellant realized the burden of the testatrix, the issue of any of the chil

dren who might then be dead to take between that rested upon them in asking that the find them the part which their parents would have ings of fact by the court below should be re- taken if living, "such accruing shares to be reversed, and 38 assignments of error have garded in all respects as parts of their original been filed. Only 4 were needed for a reversions 'thereof," the word "accrue" means to

shares, both as to the enjoyment and transmissal of the decree, if the court erred in pass come by way of increase; to be added as ining upon the right of the appellee to termi- crease. nate the agreement and to enforce the provi [Ed. Note. For other cases, see Wills, Dec. sions of its tenth clause. Though the numer

Dig. § 687.* ous assignments complain of the court's find

For other definitions, see Words and Phrases,

vol. 1, pp. 101-103.] ings and of what was not found, not one is

- ESTATE to the decree, and it cannot therefore be dis- /3. Wills ($ 687*) — CONSTRUCTION

CONVEYED. turbed. We have repeatedly referred to the In a will providing that, on the death of mistake of multiplying assignments of error. any of testatrix's children without issue, the As a rule, when they are unduly numerous, equally among the surviving children, the issue

income of a child so dying is to be divided they are "suggestive of firing at random in of any of the children who might then be dead the bushes in the hope that a stray shot may to take between them the part which their par*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

81 A.--9

ent would have taken if living, "such accruing, uary property and estate to and among the shares to be regarded in all respects as parts children or child of the issue thereof of my

as and transmissions thereof," the construction of said children, if but one solely, if more than the quoted clause as referring to the shares one equally share and share alike, the issue originally taken by the children, and not the of deceased children of my said children to shares coming to grandchildren through the take equally the share or shares his or her death of childless uncles and aunts, is not affected by a provision that each of the children parent would have taken, if living, in feeshould have the power to limit and appoint by simple; but if any one or more of my chilwill, the income coming to him or her so that dren shall die without leaving any child him it would be enjoyed for life by a surviving wid- or her surviving, then upon the further trusts ow or husband, and that, if any of the children should leave issue, the child might appoint and to receive and pay over the rents and income limit how his or her child should take, whether of such share or shares of such decedent or in fee simple or for any other estate, upon decedents to and equally among my surviving trusts or otherwise.

[Ed. Note.—For other cases, see Wills, Dec. children or the issue of any of them deceased Dig. § 687.*]

leaving issue, share and share alike, such is4. Wills ($ 687*) — CONSTRUCTION – ESTATE sue taking the share if more than one equalCONVEYED.

ly, if but one solely, which their parent or Where a will provides for the disposition parents would have taken if living, such acof testatrix's property after the death of any of cruing shares to be regarded in all respects, her children, for whom the property had been held in trust, without issue surviving, to bene- as part of their original shares, both as to ficiaries indicated, “to receive and pay over the the enjoyment and transmissions thereof; rent and income of such share or shares,” in provided that each of my children shall have the absence of a limitation over, or any express power to limit and appoint by will in writor implied restriction upon the payment of the body of the estate, the quoted words carry with ing to take effect after death, the rents and them the right to the principal absolutely. income of his or her share to any surviving

[Ed. Note. For other cases, see Wills, Dec. widow or husband he or she may leave to reDig. § 687.*]

ceive and enjoy the same until the death or 5. WILLS (8 629*)—CONSTRUCTION-GENERAL marriage of such widow or husband, whichRULES.

Where an instrument suggests it, the law ever may first happen; and provided that encourages a construction favorable to the un- as respects any of my children who may leave fettering of an estate rather than one which issue at his or her death upon the further leads to a prolonged restraint upon its free trust to assign, grant and convey his or her alienability.

share of said property and estate to and [Ed. Note.- For other cases, see Wills, Cent. among his or her child, children or issue or Dig. 88 1461, 1462; Dec. Dig. 8 629.*]

he or she may limit and appoint by writing Appeal from Orphans' Court, Philadelphia in the nature of a last will and testament, County.

whether in fee-simple or for any other estate In the matter of the estate of Sarah L. upon trusts or otherwise; and upon default Mifflin, deceased. From a decree dismissing of any such will or appointment upon the exceptions to an aújudication as to the trus further trust after the decease of any of my tee's distribution of the fund, Thomas Mif- children who shall leave issue to survive him flin appeals. Reversed, and cause remitted, or her to hold the shares of any such issue with direction to modify decree.

who may be born during my life-time upon Exceptions to adjudication. From the rec- the like trusts and with the same powers ord it appeared that Sarah L. Mifflin provided as the shares hereinbefore devised or apin her will: "All the rest and residue of pointed in trust for my own children; Prothe property and estate to me belonging or vided that it shall be lawful for any of my subject to my appointment I devise and ar- grandchildren or more remote issue so born point unto my brothers, John Large and within my life-time to dispose of his or her James Large, their heirs and assigns, in trust, share of said property and estate absolutefor the sole and separate use of my chilly and in fee-simple to whomsoever it may dren, James L. Mifflin, Thomas Mifflin, John please him or her to give and devise the L. Mifflin, William Mifflin, Mary Mimin, same; and provided if any one of my chilMartha Mifflin, and Phele Morris Mifflin, dren be the last survivor of my family withto receive and pay over to them or to permit out leaving any issue of any of my children and suffer them to take, receive and enjoy, him or her surviving, then upon the further each an equal seventh part of the rents, is- trust to assign and convey all the said trust sues, interest and profits thereof, for and estate and property as he or she shall by last during their respective lives, but without lia- will and testament direct, limit and appoint bility to the debts or engagements of them in fee-simple or for any less estate." my said children or any of them; and upon By appointment of the orphans' court the the further trust on the decease of my said Land Title & Trust Company became trustee children respectively if leaving any child under the said will, and the principal acdren or child or the issue thereof to survive counted for by the said trustee is the subject him or her, to grant, assign, and convey his of the adjudication from which this appeal or her proportionate share of the said resid- has been taken.

Pa.)

IN BE MIFFLIN'S ESTATE

131

The testatrix, Sarah L. Mifflin, died June, without liability for debts, during his or her 23, 1856, and left to survive her seven chil-life; that, upon the decease of any of her dren: John Mifflin (who died July 8, 1859); children leaving children or issue, they were Martha Miffin (who died May 2, 1867); Thom- to take the proportionate share of the parent as Mifflin (who died August 29, 1870); Phebe "in fee-simple"; that, upon the decease of Mifflin (who died April 10, 1872), all child any of her children without leaving children less and intestate; James L. Mifflin (who or issue, the income of a child so dying was died September 25, 1872, leaving three chil- to be divided equally among the surviving dren and a widow, and who exercised his children of the testatrix, the issue of any of power of appointment by will and devised her seven children who might then be dead ' his "estate, interest and property" under the to take between them the part which their will of his mother to his widow for life, then parent would have taken if living, adding, to his children under the trusts of his will); "such accruing shares to be regarded in all Mary Mifflin (who died February 3, 1873, respects as part of their original shares, both childless and intestate); and William Miffin as to the enjoyment and transmissions there (who died May 13, 1899, leaving a widow but of." We construe the clause last quoted as no issue, and who exercised his power of ap- referring to the shares originally taken by pointment in favor of his widow, Ann P. Mif- the children of the testatrix, and not to flin, for life, without any limitation over; shares coming to grandchildren through the the widow died October 24, 1909). The sole death of childless uncles and aunts. The surviving descendants of the testatrix are word "their" used in connection with the the three children of James L. Mifflin, viz., phrase "original shares" is significant. It James Mifflin, Dorothea T. Frohock, and could not be referred to the grandchildren, Thomas Mifflin. They are the only grandchild for they had been given no "original shares." dren of Sarah L. Mifflin, the testatrix, and [2] To "accrue" is "to come by way of they were all born during her lifetime. increase; to be added as increase” (Web

The court below first awarded the entire ster's New International Dictionary); and balance of principal and income in accord- the grandchildren had no "original shares" ance with the appointment contained in the that anything could be added to by way of will of James L. Mifflin, which directed that, increase. The testatrix's plan seems to have after the death of his widow, the property been to keep her seven children on a par at should be held in trust for his children, to all times, whereas no such idea is indicated pay them the income during life, without lia- as to grandchildren. The first and primary bility for their debts, and upon their death, thought, and the only intention manifested in trust for such uses as said children might in the will concerning grandchildren, down to respectively appoint and limit by will, or, in the writing of the clause in question, was default of appointment, to their right heirs that upon the death of any of the seven chil . at law; but later, in a supplemental and dren their children should take a fee simple, amended adjudication, one-third of the estate not in trust. Although the subsequent prowas awarded to the trustees named in the visions make it possible for the respective will of James L. Mifflin, and the other two children of the testatrix to limit the estates thirds to the trustees under the will of Sarah to be taken by their children directly through L. Mifflin. Upon exceptions filed by Thomas them, they fail to show any general or uniMifflin, the appellant here, the whole of the form plan for keeping the grandchildren on estate was again awarded to the trustees un

a par, such as the testatrix evidently inder the will of James L. Mifflin.

tended to preserve for her own children; on Error assigned was the refusal of the court the contrary, they indicate quite a different below to award absolutely to appellant and idea. All of which leads us to interpret the the other two grandchildren of Sarah L. Mif- clause as having no reference to shares which flin the part of the trust estate which under might fall to grandchildren, after the death her will was previously enjoyed by Mary Mif- of their own parent, through the decease of flin and William Mifflin.

an uncle or aunt without children him or Argued before FELL, C. J., and MESTRE- her surviving. ZAT, POTTER, ELKIN, STEWART, and

As we view the will, the thought of the MOSCHZISKER, JJ.

testatrix was that the property should be John G. Johnson, D. P. Hibberd, and Sam-held in trust for her seven children, each to uel P. Tull, for appellant. Eli Kirk Price, be paid an equal portion of the income. If for appellee.

any of them should die leaving children, the

latter should take the share of their parent MOSCHZISKER, J. [1] The question to de- in fee simple absolute. If any of them should cide is, Do the three grandchildren of the tes- die without leaving children or issue, the tatrix, all of whom were born during her life share of one so dying should be divided time, take the shares of their uncle and aunt, among the survivors of her seven children, William Mifflin and Mary Mifflin, absolutely the issue of a previously deceased child to and free of trust? The testatrix provided | take between them the portion that their that the property should be held in trust for parent would have taken if living, and that her seven children so that each should re- any accretions which might in this way come ceive "an equal seventh part” of the income, to a surviving child of the testatrix should

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