Imágenes de páginas
PDF
EPUB

(265 Pa. 51)

(108 A.)

[blocks in formation]

PAYMENTS TO WIDOW NOT ESTOPPEL.

The executor cannot claim an an estoppel against the widow's election to take against the will, because he paid monthly sums to her for support of herself and children, where no rights of third parties have intervened.

Appeal from Orphans' Court, Centre County.

Rule by Elsie B. S. Beck on the Bellefonte Trust Company, executor of Robert A. Beck, deceased, to show cause why widow's election to take under the will should not be declared void, and why she should not be permitted to take against the will. From an order discharging the rule, the widow appeals. Reversed, and prayer of the petition granted. Argued before BROWN, C. J., and FRAZER, WALLING, SIMPSON, and KEPHART, JJ.

Four days after testator's death the will was read to the widow, who expressed satisfaction therewith, and three days thereafter, in the presence of her attorney, signed an election to take under it. This was directed to the register of wills and filed in his office, but not acknowledged nor delivered to the executor. Mrs. Beck did not then know the amount of the estate. However, shortly thereafter an inventory was taken, but no account has been filed nor settlement made, although the $50 a month has been regularly paid; and in the fall of 1915 the orphans' court, on her application, allowed $10 a month additional for the support of the children, to be paid from the income of their estate. In August, 1916, the widow executed and acknowledged an election to take against the will of her deceased husband, which was addressed to and given the executor, with a request that it be recorded in the office for the recording of deeds and the office of the register of wills of Centre county, as required by act of April 21, 1911 (P. L. 79). This was declined by the executor, and the paper re turned to Mrs. Beck, whereupon she filed her petition in this case, praying for an order requiring the executor to record her election last above stated, and that the same be deemed and taken as her sole and only election, and that the one first above stated be decreed void and of no effect. To which the executor filed answer, and testimony was taken, and, upon due consideration, the court below held her election to take under the will valid, and refused her petition, from which she brought this appeal.

[1] The relief prayed for should have been granted, as the case is governed by the act of 1911, supra, Purden's Digest (13th Ed.) vol. 7, p. 7766, which provides that:

"2. Surviving husbands or wives electing to take under or against the wills of decedents shall, in all cases, manifest their election by a writing signed by them, duly acknowledged by

Guy W. Bange, of Hanover, and W. G. them before an officer authorized by law to Runkle, of Bellefonte, for appellant.

Harry Keller, of Bellefonte, for appellee.

WALLING, J. This proceeding in the orphans' court is to determine the right of a widow, under the facts found, to take against the will of her late husband. Robert A. Beck died May 17, 1915, testate, and by his last will all his estate, mostly personalty and amounting to over $20,000, is given to the Bellefonte Trust Company in trust, inter alia, to pay his widow, the appellant, $50 a month for the first five years and thereafter $60 a month for the support of herself and their two minor children; and stipulating that the widow's interest in the estate shall cease and determine upon her death or remarriage. The trust company was also appointed and qualified as executor of the will.

take the acknowledgment of deeds, and delivered to the executor or administrator of the estate of such decedent.

"3. No payment from the estate of such deunless his or her election shall have been duly cedent shall be made to any husband or wife executed, acknowledged and delivered, as provided by the first section of this act."

The act contains a further provision for the recording of such election in the office for the recording of deeds and thereafter in the office of the register of wills. The requirements as to execution, acknowledgment, and delivery are mandatory, and, as appellant's election to take under the will was neither acknowledegd nor delivered to the executor, it was ineffective, and did not preclude her from electing to take against it. The language of the statute is plain, and its

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ULATING STREET RAILROADS AS IMPOSING
BURDEN ON INTERSTATE COMMERCE.

meaning emphasized by expressly excluding | taken away by Act July 26, 1913 (P. L. 1374), the delinquent party from all share in the creating the Public Service Commission. estate until the election has been made as 2. COMMERCE 58-TRAFFIC ORDINANCE REGtherein required. The manifest intent was to promote certainty in the settlement of estates. Those provisions of the act of 1911 do not seem to have been heretofore construed by an appellate court, but so far as passed upon by the lower courts the conclusion appears to be in harmony with that above stated. In Johnson's Estate, 244 Pa. 600, 90 Atl. 923, the statutory requirements were complied with. Under prior statutes, containing no such provisions, the rule was different; then an election, even in pais, if Proceeding by the City of Easton against advisedly made and clearly proven, was suffi-A. R. Miller for the imposition of a penalty

cient.

[2, 3] Mrs. Beck did not lose her right to take against the will by a delay of 15 months in making her election. A much longer time has often been allowed; and, under the Act March 29, 1832, § 35 (P. L. 200; Purdon's Digest [13th Ed.] vol. 1, p. 1277), a widow cannot be called upon to make her election until after the expiration of a year. Nor is she estopped from electing to take against the will. The extra $10 a month was outside of the will, and for the support of the children, and whatever she received from the monthly payments can be accounted for on settlement of the estate. Such payments

were for the mutual benefit of the widow and children. No rights of third parties have intervened, and the estate is not yet settled. The executor (appellee) cannot claim an estoppel against the widow because of money it paid her in contravention of the statute. It is not deemed necessary to consider the other features of the case.

The decree is reversed, and the prayer of the petitioner granted, costs to be paid by

the estate.

[blocks in formation]

1. STREET RAILROADS 74-REGULATION OF STREET CAR TRAFFIC ON STREETS REASONABLE

EXERCISE OF POLICE POWER.

An ordinance requiring all vehicles, including street cars, on entering a public square to turn to the right and pass around the square, though involving readjustment of schedules and relocation of a few tracks, is not an unreasonable exercise of the city's police power, where it appears that such square is practically in the heart of the city's commercial district, and that on one of the approaches to it there passed between 6 a. m. and 6 p. m. as many as 6,371 vehicles including 400 street cars receiving and discharging from 25,000 to 40,000 passengers; and the power to pass it was not

An ordinance requiring all vehicles, including street passenger cars, on entering a public square in the city's commercial district to turn to the right and pass around the square, does not impose a burden on interstate commerce, even if some of the street cars entering the square are engaged in such commerce.

Appeal from Superior Court.

for the violation of a traffic ordinance. From

a judgment of the Superior Court affirming a judgment on a verdict for plaintiff, defendant appeals. Affirmed.

The proceeding in the common pleas was for the imposition of a penalty for the violation of an ordinance of the city of Easton regulating traffic upon its streets and highways. The appellant, the defendant below, was a motorman in the service of the Easton Transit Company. The facts in the case and the questions involved appear in the following opinion of the Superior Court (69 Pa. Super. Ct. 554), affirming the judgment against the defendant:

"The defendant is a motorman in the service

of the Easton Transit Company, a corporation duly authorized to operate street cars on the for an alleged violation of the provisions of a streets of the city of Easton. He was arrested city ordinance regulating the traffic on certain busy streets; such regulation requiring vehicular traffic of every kind to move only in a prescribed direction on a particular street. After a hearing before the mayor, he was found guilty. An appeal to the court of common pleas was asked for and allowed. The case was tried before a judge and jury. A verdict for the plaintiff followed upon which judgment was entered, and the defendant appeals to this court. "The elaborate brief filed by the able counsel for appellant covers a very considerable extent of what we may term legal 'terrain' and discusses many important propositions. After an attentive consideration of the entire subject, we have determined we can best indicate the reasons for the conclusion we have reached by a brief consideration of the four questions we now state:

"(1) Before the Public Service Law of the state became effective, would it have been within the police power of the city of Easton to have enacted an ordinance, reasonable in its terms, regulating the traffic on its streets, if such regulation required the moving of all street cars in a prescribed direction?

"(2) If the answer be in the affirmative, was the city shorn of the right to exercise such power by the passage of the act creating the Public Service Commission?

"(3) Can an appellate court of law, under the facts found, declare the ordinance in ques

(108 A.)

tion was arbitrary, unreasonable, and oppres- [ actment was a legitimate exercise of the police sive? power lodged in the city.

"(4) Did the ordinance impose a burden upon interstate commerce of such character that the right of the city to enact it became a federal question cognizable only in the federal courts?

diction whatever to determine that a municipality could not continue to do that which it was legally empowered to do before the Public Service Law became effective. It is true the commission may decline to approve of a contract proposed to be entered into between a municipality and a public service company. That is not because it has any jurisdiction over the municipality, which continues to be competent to enter into a proper contract without any aid from the Public Service Commission. The result referred to flows from the fact that the commission has authority to withhold its approval of a contract about to be entered into by a public service company, and without that approval the company cannot legally enter into the contract. The contract therefore fails because only one of the two parties, to wit, the city, was competent to contract. We are of opinion the Public Service Law in no way deprived the city of Easton of the right to enact the ordinance in question.

"2. We do not think it was within the contemplation of the Legislature, when it passed the Public Service Law, that it was dealing with the cities of the commonwealth or was attempting to deprive them of any power reason"1. The ordinance in question was originally ably necessary to enable them to perform their enacted in 1911. It was entitled 'An ordinance | legitimate municipal functions. It has not regulating traffic upon the streets and high- been before contended, to our knowledge, that ways of the city of Easton, declaring certain the Public Service Commission has any jurisacts pertaining thereto nuisances and prescribing penalties therefor.' No difficulty appears to have arisen until in December, 1914, the said ordinance was amended by the addition thereto of six new sections. The particular one of them which appears to give rise to the contention we are now considering is section 18, which provides, 'All vehicles, including street passenger cars, shall, upon entering the public square known as Center Square, turn to the right thereof and pass around said square as herein directed.' Unless the police power of the state, delegated for proper purposes to the city of Easton, has lost some of the characteristics that have heretofore been regarded as incident to a legal exercise of such power, it is difficult to perceive why the subject-matter of the ordinance in question was not well within the lines so often recognized as defining a zone, within which such power could rightfully be exercised. The evidence shows that the square in question is practically the heart of the city's commercial life. From that center pulsates, through the radiating street arteries, a great portion of its business activities. The testimony taken, which is undisputed, shows that on one of the streets in question there passed between the hours of 6 o'clock a. m. and 6 o'clock p. m. 6,371 vehicles of all description. This number included something over 400 street cars of the Easton Transit Company. These cars would daily receive and discharge from 25,000 to 40,000 passengers. The regulation by the city of such traffic, so as to avoid congestion, manifestly had for its purpose additional security for the lives and limbs of the public, additional protection to property in the course of transportation, and the promotion of the public convenience generally. These are the badges of a proper exercise of the police power. In Radnor Township v. Bell, 27 Pa. Super. Ct. 1, this court, in a learned and careful opinion by our Brother Orlady, fully discussed the question of police power in so far as it may with propriety be discussed in any given case. Again in Central Market Co. v. Erie, 44 Pa. Super. Ct. 191, we endeavored to show why the limits of the police power could not be measured by fixed and rigid lines and why in each case, as it arose, the courts could but pass upon the question immediately presented. In these opinions many cases from our own courts and those of other jurisdictions were reviewed and analyzed. In no one of them had it ever been held that an ordinance of the character of the one now before us was an abuse or an improper exercise of the police power inherent in every state and delegated by the state to the municipal agencies it has chosen to create. We are of opinion it was entirely competent for the city of Easton to enact the ordinance in question, and that such en

"3. Is there anything in this record that would warrant this court in declaring, as a matter of law, the terms of the ordinance complained of were unreasonable? We think not. The fact that it may involve some readjustment of the schedules of the transit company may be conceded. It is quite possible that obedience to it may also require some relocation of the tracks of the company on the few streets in question. But such facts do not justify the conclusion that the franchise of the transit company, in the eyes of the law, has been either destroyed or impaired. A company accepting a franchise that involves a use of the public streets of a city or other municipality must accept it subject to the continuous right of such municipality to perform its strictly legal functions and obligations, even though such performance may entail some expense upon the holder of the franchise in readjusting its pole lines, water and gas pipes, street car tracks, and the like to the new situation brought about by the lawful act of the city. Such was the doctrine declared in American Tel. & Tel. Co. v. Harborcreek Township, 23 Pa. Super. Ct. 437, as well as Scranton Gas & Water Co. v. Scranton, 214 Pa. 586, 64 Atl. 84, 6 L. R. A. (N. S.) 1033, 6 Ann. Cas. 388. A brief quotation from the opinion of Mr. Justice Stewart in the case last cited will fully illustrate the views of this court on the question before us: 'So far as property rights are concerned, there is but slight correspondence between the easement enjoyed by appellant company in the streets of the city, and the rights of the abutting owners in their several properties. The distinctions between the two are too obvious for discussion. It is enough to say, with respect to the former, that it is held and enjoyed subject always to the earlier and superior rights of the public in the streets of

the municipality. Among these is the power to
regulate and control the streets in the interest
of public health and safety. When these de-
mand a change in the mode and manner of the
enjoyment of the easement or privilege, and
that demand is expressed through the munici-
pal authority, in the exercise of reasonable dis-
cretion, that change must be made. Calling the
legislative grant of privilege to use the streets
a contract does not avoid the conditions on
which the privilege is to be exercised. Wheth-
er such limitation or conditions be expressed
in the grant or not is immaterial, for, as said
in Butchers' Union Slaughter House Co. v.
Crescent City Live Stock Co., 111 U. S. 746
[4 Sup. Ct. 652, 28 L. Ed. 585], the power to
control and regulate the streets so as to pro-
tect the public health is one that cannot be
bargained away by legislative or municipal
grant. The power to control them for the pro-
tection of public safety, if not the same, stands
on equally high ground.' The same doctrine
was again applied by this court in Springfield
Water Co. v. Phila. & Garrettford Street Ry.
Co., 45 Pa. Super. Ct. 516.
and proper exercise by a municipality of its
police power is readily distinguishable from
situations where the municipality, acting on a
mistaken sense of its power, would undertake,
for instance, to prescribe the mechanical means
and appliances by the aid of which a public
service company would operate its cars and
transport its passengers or freight. We need
not prolong this opinion by referring to them
in detail. We conclude the terms of the or-
dinance in question, as they apply to the op-
eration of the cars of the transit company,
could not be declared to be arbitrary, unrea-
sonable, or oppressive.

of the power lodged in the city to regulate traffic on its streets and as a consequence the action of the learned court below exhibits no reversible error.

"Judgment affirmed."

Judges Porter and Kephart dissented.

From the judgment of the Superior Court an appeal was allowed to the Supreme Court on the two following questions:

"(1) Before the Public Service Law of the state became effective, would it have been within the police power of the city of Easton to have enacted an ordinance, reasonable in its terms, regulating the traffic on its streets, if such regulation required the moving of all street cars in a prescribed direction?

"(2) If the answer be in the affirmative, was

the city shorn of the right to exercise such
power by the passage of the act creating the
Public Service Commission?"

Argued before BROWN, C. J., and STEW-
SIMP-
The reasonable ART, FRAZER, WALLING, and
SON, JJ.

"4. The argument of the learned counsel for

Asher Seip and H. J. Steele, both of Easton, for appellant.

Aaron Goldsmith and N. R. Turner, both of Easton, for appellee.

BROWN, C. J. [1] While nothing can be profitably added to the opinion of the Superior Court, affirming the judgment of the court below, we may add a word of concurrence in the view that the city of Easton had the power to pass the assailed ordinance and to enforce it against the Easton Transit Company. That the city possessed such the appellant on this question is perhaps suf- power prior to the passage of the Public Serv ficiently answered by the statement of the ice Company Law of July 26, 1913 (P. L. learned court below that it does not appear 1374), is undoubted. One of the purposes of 'from the testimony that the cars engaged in the state in creating a municipality is to give interstate commerce enter the square.' If that it the control of its streets. City of Williamsstatement of the fact be true, and it appears port v. Commonwealth ex rel., 84 Pa. 494, to be, an elaborate discussion of the question 24 Am. Rep. 208. And in recognition of this raised would be entirely beside the mark. We do not think it would be difficult to show that there is nothing in the provisions of the ordinance here complained of that could fairly be said to place such a burden upon interstate commerce as would make the ordinance obnoxious either to federal legislation or decision. As we write, we are informed by the public press of the decision [Hammer v. Dagenhart, 247 U. S. 251, 38 Sup. Ct. 529, 62 L. Ed. 1101, Ann. Cas. 1918E, 724] handed down by the Supreme Court of the United States two days ago declaring unconstitutional a federal statute commonly known as the Child Labor Law (Act Cong. Sept. 1, 1916, c. 432, 39 Stat. 675 [U. S. Comp. St. §§ 8819a-8819f]). We quote the following from the published excerpt of the opinion of the court: "The grant of power to Congress over the subject was to enable it to regulate such commerce and not to give it authority to control the states in their exercise of the police power over legal [local] trade and manufacture.'

"After mature reflection on all of the questions involved, we reach the conclusion that

inherent power in a city or borough, as the agent or representative of the commonwealth, to exercise supreme control over its highways, in the interest of the safety of the general public, there was inserted in article 17 of the Constitution of the state the provision that—

"No street passenger railway shall be constructed within the limits of any city, borough or township, without the consent of its local authorities."

Neither the Legislature nor courts can trespass upon the discretion thus given to those authorities. Allegheny City v. Millville, Ætna & Sharpsburg Street Railway Co., 159 Pa. 411, 28 Atl. 202; Carlisle & Mechanicsburg Street Railway Cos.' App., 245 Pa. 561, 91 Atl. 959. Without the consent of the city of Easton the tracks of the Easton Transit Company could not have been laid upon its streets. After the easement upon them was acquired, with the consent of the city, and

(108 A.)

est of public safety it became necessary to cars; and it could not. Mahoning & Shenchange the measure of the enjoyment of the ango Ry. & Light Co. v. New Castle, 233 Pa. easement or privilege, and the municipal au- 413, 82 Atl. 501, Ann. Cas. 1913B, 658. It is thorities so declared, in the exercise of a merely exercising its continued power to regreasonable discretion, the transit company ulate, by a reasonable ordinance, the use of was bound to submit to the change. Scran- the easement which it gave to the transit ton Gas & Water Co. v. Scranton City, 214 company. Pa. 586, 64 Atl. 84, 6 L. R. A. (N. S.) 1033, 6 Ann. Cas. 388. A jury, the court below, and the Superior Court have held that the ordinance in question is reasonable, and in this we concur. Was the power to pass it taken away by the Public Service Company Law?

[2] The act of July 26, 1913, defines public service corporations and provides for their regulation by prescribing and defining their duties and liabilities. It does not make a municipality a public service company, and cities and boroughs, acting strictly as such, are unaffected by it in the exercise of their functions and powers and in the performance of their municipal duties. The Public Service Commission fully understands this, for it has said:

"Speaking generally, this commission would have no authority under the act of assembly.to issue any orders against boroughs, since they are not public service companies, within the meaning of the Public Service Company Law. Such boroughs are vested with certain authority over the use and occupation of the streets and highways within their territorial limits, and for an abuse of such authority, unwarrant ably interfering with the performance of the railway's duty as a public service company, the company would have an appropriate remedy in the courts." In re Use of Streets of Municipality by Street Railway, 2 Pa. Corp. Rep.

127.

The objections urged against the ordinance are groundless, and the judgment of the Superior Court is affirmed.

[blocks in formation]

Where directors of insurance company at a meeting at which insured was present passed resolution that a check which he claimed he had mailed on a certain date in payment of his assessment be accepted, and insurer thereafter accepted a cash payment and rescinded resolution, the insurer might show by parol explanatory evidence that the resolution was passed on express understanding that check would be accepted if received within a reasonable time. 4. INSURANCE 357-REASONABLE TIME FOR

ACCEPTING MISSING PREMIUM CHECK.

Under a resolution of a fire insurance com

pany agreeing to accept a missing assessment check in payment if received in a reasonable time, the time from March 13, 1918, to May 4, 1918, when the resolution was rescinded because the check had not been received, was a reasonable time.

This seems to be overlooked by learned counsel for appellant in citing York Water Co. v. City of York, 250 Pa. 115, 95 Atl. 396, in support of their contention that the regulation of the use of the streets of the city of Easton by the transit company is for the Public Service Commission. As pointed out by our late Brother Elkin, the water company had become a public service corporation by the Public Service Company Act, and the power which had been given to the city by the Act of June 27, 1913 (P. L. 568), was expressly taken from it by the repealing clause of the Act of July 26, 1913. No power vested in the city of Easton prior to the passage of that act has been taken from it, even by implication. All that it insists upon now is Where insured's assessment check, though that its reasonable control over the use of not received by insurer, was by resolution acits streets by the transit company continues cepted as payment, which resolution was later unimpaired by any legislation. It has not rescinded because check had not been received attempted to dictate the kind of cars to be within a reasonable time as contemplated by used, what equipments are to be upon them, cash payment of assessment was not a part of the resolution, the intervening acceptance of a or how they are to be manned. In short, it the minutes, nor authorized by it, and was subis not attempting to interfere with any con- ject to explanation that if check turned up trol given to the Public Service Commission within a reasonable time payment should reover the operation of the transit company's late back to date it was alleged to have been

5. EVIDENCE 461(1)-PAROL EXPLANATORY

EVIDENCE OF CASH PAYMENT OF INSURANCE
ASSESSMENT.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

« AnteriorContinuar »