Commonwealth v. Kronberg (No. 1). they are as to the identity or species of the articles sold, in which case they are within the statute." It is certainly plain that the alleged representation that the suit "fitted properly was not false pretense. The buyer had the same opportunity of judging concerning the fit as the seller. If tailors and dealers are subject to criminal prosecution by reason of their opinion as to the fit of clothing, I am afraid many of them would go to jail. The representation that the suit was made of wool was a general statement. The suit was before the buyer for examination. It is not claimed that there was anything concealed. The buyer could easily have ascertained the quality of goods, if he so desired. I am, therefore, convinced that a criminal prosecution of this kind ought not to be sanctioned. The demurrer is sustained and the indictment is quashed. Court of Quarter Sessions of Lancaster County Commonwealth v. Kronberg (No. 2). Indictment for false pretense-False representations as to quality of goods by seller. Indictment for false pretense. Demurrer. September Term, 1920, No. 24. B. F. Davis, for demurrer. John E. Malone and Wm. C. Rehm, Dist. Atty., contra. December 24, 1920. Opinion by LANDIS, P. J. It is charged in the indictment that the defendant "unlawfully and knowingly devising and intending to cheat and defraud Albert McCutchen of his goods, moneys, chattels and property, did then and there unlawfully, knowingly and designedly falsely pretend to the said Albert McCutchen that a certain suit of clothes which he then and there was selling to the said Albert McCutchen was made of wool and fitted properly, whereas in truth and in fact the said suit of clothes was not made of wool and was not fitted properly, as he, the said S. Kronberg, then and there well knew, by color and means of which said false pretense and pretenses he, the said S. Kronberg, did then and there unlawfully, knowingly and designedly obtain from the said Albert McCutchen fifty-five ($55.00) dollars." The defendant filed a demurrer and now claims that the indictment is not in law self-supporting. In Commonwealth v. Kronberg, September Sessions, 1920, No. 21, this same question was presented before this Court. We there held that the demurrer ought to be sustained. For the reason stated in our opinion just handed down, but not yet reported, we come to the same conclusion in this case. The demurrer is sustained and the indictment is quashed. Orphans' Court of Lancaster County Estate of Thomas B. Jefferies. Sale of real estate under Revised Price Act of June 7, 1917, P. L. 388. The legislature has power to pass an act authorizing the court to decree a sale of a decedent's real estate against the objections of some of the living owners who are sui juris, and such order will be made by the court under the Revised Price Act of 1917 where it is to the interest and advantage of the parties interested. Petition for sale of real estate under Revised Price Act of 1917. May Term, 1912, No. 41. H. Frank Eshleman, for petition. H. Edgar Sherts, contra. January 13, 1921. Opinion by SMITH, P. J. Notwithstanding Thomas B. Jefferies left a paper which he designated a "Last Will and Testament," he definitely disposed of none of his property by it. Evidently it was his intention that four of his daughters should enjoy practically all of the income of his estate. This intention was approved by all the parties, and has been acted upon for about ten years. It was gathered from the following words of the will: "I desire my Estate, real or personal to remain in the same condition as at my decease and so long as my four daughters, Mary A., Matilda, Carrie E. and Charlotte Jefferies may live, and while they all remain unmarried. "My farm in Strasburg Township, Lancaster County, now in use and occupancy of my son John L. Jefferies shall continue to so remain, he paying a yearly rental of $350. per year as also he to pay all the taxes on the same farm as also the Interest on the Mortgage of $1500 held against the farm, and keep up in good condition necessary. "The daughters as herein already named shall use only the interest of all monies belonging to my said estate." The four daughters now ask for an order to sell the properties described in their petition by force of the Revised Price Act of 1917. Four other of the decedent's children are passive, but a son, John L. Jefferies, who is sui juris, objects to the granting of the order. It has been held that the Orphans' Court has no jurisdiction to decree a sale under conditions like unto these" where all the devisees in remainder are sui juris, with vested interests, and some object." Van Dusen's Est., 1 D. R. 156; Kerner's Est., 13 D. R. 311. In Freeman's Est., 181 Pa. 405, Mr. Justice Mitchell, in delivering the opinion of the Court, declared that: "As applied to the case, the statute (Act of April 18, 1853, P. L. 503, known as the Price Act) is not the divesting of estates of parties sui juris without their consent," and Mr. Chief Justice Sterrett, in a dissenting opinion, said: "Many acts have been passed authorizing sale which have been sustained on the ground of disability of parties interested; but interference with the constitutional right of parties sui juris to exercise the powers incident to ownership has been uniformly condemned: Ervine's Appeal, 16 Pa. Estate of Thomas B. Jefferies. 256; Kneass's Appeal, 31 Pa. 87; Palairet's Appeal, 67 Pa. 493. In the last case, Mr. Justice Sharswood, discussing the legislative power to authorize conversion, said: 'But this power to authorize conversion has never been recognized as constitutional by this court except in the case of the property of persons under disabilities, or where there were contingent interests whose owners had not come into existence, and that, too, with the consent of those standing in a fiduciary relation of trustee, guardian or committee. The cases in which such conversion may be authorized seem well enumerated in Mr. Price's valuable Act of April 18, 1853, P. L. 503. But it has been expressly repudiated and denied in the case of owners sui juris not consenting nor presumed from acquiescence to have consented.' To the same effect is Hegarty's Appeal, 75 Pa. 517. There are, no doubt, apparent exceptions to the rule; but these on closer view will be found to be in entire harmony with it." Since these pronouncements the Supreme Court, in Smith's Estate, 207 Pa. 604, have affirmatively answered the question: "Does the power exist in the legislature to pass any act authorizing the court to decree a sale of real estate against the objections of some of the living owners who are sui juris": "The act of 1853 is a general law, operating on all cases alike—is intended as a rule of property, and is unlike the case of Ervine's Appeal, 16 Pa. 256, which exposed a legislative attempt to make a rule in a special case after rights had become vested under existing laws. I think it was well decided that such a divestiture of title was not "by due process of law." Here, however, the property in question became vested under a rule of law promulgated in the statute, by which it and property similarly situated might be divested and there is nothing, contrary either to natural justice or to constitutional right, to allow the act so to operate, where the fund is substituted for the estate, or so much as may remain after the necessary application to the relief of the estate, or the benefit of those interested in other portions of it. It unfetters the realty from diversity of titles and contingent interests, secures to the purchasers clear titles and to parties interested the value of their interests. This objection is not in the way of the order of sale.' Again in the more recent case of Freeman's Estate, the validity of the act was discussed and sustained. Our Brother Mitchell, delivering the opinion, says: The constitutional objections to this statute raised by the appellants are not tenable. As applied to the case, the statute is not the divesting of estate of parties sui juris without their consent, but the regulation of joint rights where the joint owners cannot agree in the control and disposition of the property. It defeats or interferes with the individual rights of property no differently and no further than any other mode of changing their rights to severalty or regulating the management until that is done. The right of a joint owner is to an undivided interest in every portion of the joint property, but this right is accompanied with the ancient incident of partition. Each owner has the right to enlarge his estate to severalty, though in so doing he must reduce its corpus so that the other owners may also have the like privilege. The mode of doing this has always been within legislative control, and this statute does no more.'" Estate of Thomas B. Jefferies. The Court is of the opinion that it will be to the interest and advantage of all those interested in one of the two properties described in the petition and known as number 144 East Lemon Street, in the City of Lancaster, Pennsylvania, that it should be sold, and that the same may be done without prejudice to any trust, charity or purpose, and without the violation of any law which may confer an immunity or exemption from sale or alienation; therefore, Mary A. Jefferies and Matilda Jefferies, who are the administrators c. t. a. of the estate, are hereby appointed trustees for all parties interested in "number 144 East Lemon Street," and it is ordered and decreed that the said trustees, after giving a bond with approved sureties in the sum of twelve thousand dollars and after proper advertisement, shall offer said premises for sale at public auction, and thereafter duly make return thereof to this Court. The Court being of the opinion that it is not to the interest and advantage of any of the parties interested in the other property described in the petition and known as the farm in Strasburg Township, Lancaster County, Pennsylvania, that it should be sold, an order for the sale of the same is refused. Costs to be paid out of the proceeds of the sale, and if there should be no sale, costs to be paid out of the rents of the property offered for sale. BAR MEETING To take Action on the Death of A. F. Shenck. Albert F. Shenck was born in Chickies, Rapho Township, Lancaster County, Pa., in 1846. He graduated at Franklin and Marshall College. He studied law with the late O. J. Dickey and was admitted to the bar in 1875. He died suddenly, from heart failure, on Friday, April 1, 1921. A meeting of the Lancaster Bar was held in the large Court Room at 11 o'clock a. m. on Monday, April 4th, 1921, with Judge Landis in the chair and B. J. Myers acting as secretary. On taking the chair Judge Landis said: Gentlemen of the Bar: We have been once more called together to pay our last tribute to the memory of our late associate, Albert F. Shenck. Mr. Shenck was one of the oldest members of the Bar - in fact, there are but three practicing lawyers who preceded him in date of admission. He studied law with the late O. J. Dickey, and he was admitted on his preceptor's motion on May 10, 1875. He was the son of Henry S. Shenck, a fine old gentleman, who served as Register of Wills, and afterwards was attached to our Courts. Mr. Shenck never appeared to any great extent before the Courts, but he enjoyed considerable office practice, and, being a careful and economical man, he gathered together a comfortable estate. He once told me that he entered the army as a bugler at the age of Bar Meeting. fourteen, and was attached eo Company F, of the 9th Pennsylvania Cavalry. He was captured, and confined in Libby Prison for a period of almost five months, and also in Andersonville, suffering much hardship, and, in fact, I do not think he ever entirely recovered from those experiences. He was very active as a member of the Republican party. For many years he lived in the Second Ward of the city, and he prepared and held the window book of his party, and to a large extent looked after its local management. He was Committeeman of the Ward, and, when it was divided, of the First Precinct, for many years. He was Secretary and Chairman of the Republican County Committee for a number of terms. He also served in public in several capacities. He was elected to the office of City Solicitor, and also to that of County Solicitor, conscientiously performing his duties. He was also Chief Census Enumerator, I think, in 1900. He was of an even temperament and it was seldom that he displayed anything but amiability and kindness to his fellows. Some of us at least will miss his familiar face. Remarks in eulogy of Mr. Shenck were made by B. F. Davis, C. Reese Eaby, John E. Malone, S. V. Hosterman, I. C. Arnold and B. J. Myers. On motion a committee consisting of B. F. Davis, F. S. Groff, H. R. Fulton, C. Reese Eaby and Geo. Ross Eshleman was appointed to draw up a resolution. They reported the following, which was adopted: "Assembled to take action expressive of our sorrow upon the death of our fellow-member, A. F. Shenck, the Lancaster Bar directs the following minute to be placed upon its records as a tribute to his memory: "A. F. Shenck was one of the oldest practicing members of our Bar, a gentleman of good education and legal attainments. While seldom appearing before the court in the trial of cases, he enjoyed a large office practice. He was a man of personal probity, square and reliable in all his dealings, and enjoyed the confidence of his clients and the community. "His kindliness of manner and geniality brought him a wide acquaintance and a large circle of friends. He served his country faithfully as a soldier throughout the Civil War. We miss him and sincerely mourn his death." C. P. OPINIONS. Saturday, April 2, 1921. By LANDIS, P. J.: E. M. Book v. Jos. G. Froelich. Rule for a new trial discharged. Tansy Tobacco Corp. v. Robert M. Granat & Co. Rule for a new trial discharged. A. H. Greider v. Andrew H. Eshleman. Preliminary injunction made perpetual. |