SURETY (Continued). 2. In an action on a note against one of the sureties on it, it is not a defence to show that the name of the other surety had been cut off, where the latter had paid his proportion, and his name was cut off in ignorance, innocently and without any fraudulent intent. Landis vs. Keller, 501. TAXATION. 1. That portion of a building belonging to a purely public charitable association which is in their actual use and occupation for the purposes of the association is, by the constitution of Pennsylvania, and the act of May 14, 1874, P. L. 158, exempt from taxation; but that portion of their building which is not in their actual physical occupation, but which is leased by the association to others, and for which rent is paid to them, is not exempt, and taxation thereof cannot be avoided by an appropriation of the income to the maintenance of the charity. Association vs. Donohugh, 12. 2. The act of April 16, 1879, relating to the collection of delinquent taxes in Philadelphia is constitutional. Lorman vs. Donohugh, 133. 3. In any event, the tenant, when distrained upon for delinquent taxes due by the landlord, has no standing in court if he cannot show some obligation of the landlord, which is impaired by the act of collector of delinquent taxes. Id. 4. Ground upon which a church is being erected, and which has never been used as a regular place of worship, is not exempt from taxation under the act of 1874. Commissioners vs. Bishop, 509. TAXES. See LIFE-TENANT, 2. TENANCY IN COMMON. See DOWER, 1, 2, 3. TRADE MARK. 1. The principle is well settled that a manufacturer may, by priority of appropriations of names, letters, marks, or symbols of any kind to distinguish his manufacture, acquire a property therein as a trade mark. Sheppard vs. Stuart, 117. 2. In cases involving the question of trade mark the evidence must show the first appropriation of the device by the claimant; its application by him to his goods or business; and that the trade or public recognize the article or business by that device as made or sold by him, or belonging to him. In no other way can a mark or device indicate “true origin or ownership." Id. 3. Although a man may not intend to injure another, yet he will not be allowed' to adopt the marks by which the goods of such other person are designated, if the effect of adopting them would injure such other person. Id. 4. Permission to one who is merely a dealer to place his name on articles bearing the trade mark of the manufacturer, is no indication of an abandonment of the trade mark by the manufacturer, especially if such permission was in accordance with the custom of the trade. Id. 5. The plaintiff's have the right to use the word "Excelsior" as a trade mark. Id. TROVER AND CONVERSION. In an action of trover a joint conversion by husband and wife may be laid in the declaration. Stewart vs. Dearing, 175. TRUSTS AND TRUSTEES. See RECEIVERS, 1. HUSBAND AND WIFE, 8, 9, 10, 11, 12. 1. E. assigned certain personal property to trustees for the use of her daughter (then contemplating marriage), and, after her death, for the use of her children or their issue then living, and to be conveyed to them as tenants in common upon their attaining the age of twenty-one years; in default thereof, in trust for such person or persons as would have been entitled to the property if the donor had died in possession thereof after the death of her daughter without issue surviving her. Phila. Trust Co.'s Account, 44. 2. The daughter died before the mother, leaving a child, who died during minority, soon after the death of its grandmother. Id. 3. The property was awarded to the other children of E., and held not to pass under E.'s will, not being specifically named therein, or any reference made to any power residing in the testator. Id. TRUSTS AND TRUSTEES-(Continued). 4. The interest which had accrued on the trust investments at the time of the 5. A deed creating a trust for the benefit of a married woman, with power to 6. Such estate is liable for necessaries furnished on her order. Id. 7. Testator's will gave to P., the executor, his son, who had been in business The trustee kept the securities which had been made by testator, but which were not legal 8. The gift of an estate for the separate use of a married woman implies, ex 9. A trustee will not be authorized to mortgage the trust property for a debt 10. A petition for an order upon a trustee to pay to the guardian of the cestui 11. It is the duty of trustees to keep the trust estate insured; as to the devisees 12. It is well settled that a gift to a trustee for the "sole " use of a beneficiary 13. Irrespective of the words used in its creation, a separate estate can, of 14. Distribution of balance of income in trustees' hands by agreement. Est. 15. Testator devised as follows: "All the rest, residne and remainder of my 16. While trustees are not generally liable for the acts of each other, this rule 17. A guardian applied his ward's money, with some of his own, to the erection TRUSTS AND TRUSTEES-(Continued). a case stated. Held, that the cestuis que trust acquired an interest in the land to the extent of the moneys belonging to them and invested in it, and that the judgment creditors have no such interest therein as will defeat the enforcement of the resulting trust. Held, further, that the purchaser, upon the confirmation of the sale by the court, takes the land subject to the resulting trust. Sheetz vs. Neagley, 506. 18. Kight of executors, administrators, and other trustees, to purchase their trust estates. Est. of John C. Hallman, 562. ULTRA VIRES. See INSURANCE, 2. "UNDER AND SUBJECT." S., as owner of certain premises, executed a bond and mortgage to C. He afterwards conveyed the property to M., the decedent, in her lifetime, by deed, "under and subject to the payment of the said mortgage." Suit upon the mortgage was brought by the assignee of the bond and mortgage, and the property was sold for less than the face value of the mortgage. At the audit S. claimed the amount named in the bond, less the proceeds of the sheriff's sale. He produced the bond and assignment, and admitted, by his counsel, that he had paid no part of it, and that no suit had been brought against him by the assignee, and that the bond had not been entered up. The assignee did not appear before the auditor. Held, that the claim was properly rejected. Est. of Ann McConaghy, 399. UNINCORPORATED ASSOCIATIONS. Right of a religious or charitable association, although unincorporated, to appear as a party plaintiff without joining all its members in the action; jurisdiction of the Orphans' Court of claim by such association against decedent's estate. Est. of Alice Maguire, 244. VENDOR AND VENDEE. See EJECTMENT, 1. WAGES. See ASSIGNMENT, 3, 4. 1. The act of April 9, 1872, giving certain employés priority of claim for wages, does not apply to a farm laborer. Solms' Est., 539. 2. Under the act of 9th April, 1872, wages of labor earned after a levy made on personal property, are not entitled in the distribution to have priority over the claim of the execution creditor. The levy gives him a vested right of which he cannot be deprived by delay in making the sale, to which he was not a party. Schwartz vs. Banks, 540. 3. Sufficiency of notice to sheriff, under act of 9th of April, protection of the wages of labor. Property levied on is in the Possession of the owner is divested and placed in the sheriff. tors of defendant cannot acquire a paramount interest in it. son, 542. WARRANTY. See INSURANCE, 4, 5. 1872, for the better custody of the law. Subsequent crediKindig vs. Atkin The words "grant, bargain, and sell," in the absence of an express covenant, do not imply the vendor's protection from a ground-rert which was a subsisting incumbrance when the vendee took title. Browne vs. Lewis, 7. WIDOW. See DOWER, 4. LEGACY, 5, 6, 7, 8. PARTITION, 1, 2. DECEDENTS' ES 1. A widow having given notice of her intention to take against the will, it is still within the discretion of the auditing judge up to the time of adjudication to permit her to withdraw her election. Est. of John Barry, 310. 2. Decedent's wife was divorced during the life of a daughter, who subsequently died. Held, that the mother, as heir to the daughter, was entitled to one-half the income of the real estate belonging to the daughter, during the life of her former husband, and all the income upon his death, during her life. Est. of W. J. Duffee, 334. WILL. See ISSUE, 1, 2, 3, 4, 5. CONTRACTS, 5. DEVISE, 1, 2, 3. PARTNERSHIP, 2, 1. A verdict upon a feigned issue, devisavit vel non, was taken against the validity of an alleged will, by agreement, without the submission of evidence to the jury; and upon the same day the jury fee was paid, judgment entered on the WILL-(Continued). verdict, and the prothonotary, without application to the court, certified the result of the issue into the office of the register; upon petition for a new trial, in behalf of a legatee under the alleged will, who was not a party to the agreement as to the verdict, the verdict was set aside and the judgment vacated. The awarding of an issue devisavit vel non removes the proceedings for the proof of an alleged will to the jurisdiction of the court, from that of the register, upon whom the result is conclusive and binding. The parties to give form to the issue are by arbitrary arrangement; the parties in interest control the issue under the direction of the court. Will of R. Whitaker, 22. 2. Insertion of the word "and" by the court to remove apparent repugnancy, where a testator has expressed his intention incorrectly. Sarah Holland's Est., 206. 3. A will made by one who is the victim of insane delusions with regard to the property of which he seeks to dispose, though his memory and power of reasoning are unimpaired, will not be admitted to probate. Brinton's Est., 234. 4. What constitutes undue influence--Sufficiency of evidence of undue influence; and of mental incapacity. Est. of Mary R. Woods, 236. 5. Evidence sufficient to justify the granting of an issue. Est. of Robert Gray, 246. 6. An issue will not be granted unless there is sufficient evidence on both sides to render the matter so doubtful that the verdict, for whichever party it may be, could not be set aside as unwarranted. Clendaniel's Est., 248. 7. To determine whether an issue should be awarded the Orphans' Court must be informed what the evidence is, on both sides; wherefore it is the duty of an auditor to take enough testimony to show that the case is a proper one for a jury and annex it to his report. Id. 8. Evidence of testamentary incapacity and of undue influence insufficient to entitle petitioner to an issue. Est. of Joseph Hopple, 259. 9. Demand for issue-Evidence of improper execution-Undue inence and mental incapacity. Est. of Maria Williams, 302. 10. Technical words in a will can be diverted from their technical meaning only where, if used in that sense, they are repugnant to the intention which the testator has embodied in the instrument as a whole. The words, "I order and direct that after my death, as soon as my executors shall think it convenient, they shall sell my real estate at public or private sale," etc.," the proceeds to be divided as follows." Held, that these words worked a conversion. Est. of John Barry, 310. 11. Where testator directs that his estate be divided among "my children then living and the heirs and legal representatives of such of them as may be then deceased, or thereafter depart this life," etc. Held, That "legal representatives" means the executors or administrators, or the next of kin, as the intention of the testator seems to point to one or the other class, and the rule may be taken to be established that where an intent appears to give to the representatives a beneficial interest the words will generally mean the next of kin and will include the widow. Est. of Thomas Potter, 318. 12. Decedent bequeathed to the daughters of her deceased brother Henry the aggregate sum of $8,000, but she subsequently, in express terms, fixed the legacy to be received by each at $500. Held, that in such cases, where there is a discrepancy, the rule of construction is that what is not the subject of arithmetical calculation must take precedence. That, at all events, the sum of $500 was the last thought of decedent, and, even if repugnant to what precedes, it must stand and the other give way. Est. of Rebecca Drinker, 330. 13. Construction of will containing a clause whereby a portion of the trust estate, after the death of the cestui que trust, without leaving children, is bequeathed to "the executors in trust to convert the same into money, and to pay and apply the same in such amounts and proportions, and to such charitable and literary institutions as they, my executors, may select and prefer." Est. of Nathan Dunn, 395. 14. The word "children" will not be held to include "grandchildren," unless the manifest intent of the testator shall point to that meaning. Est. of Peter Fisher, 401. 15. Evidence of undue influence and mental incapacity sufficient to justify revocation of letters testamentary granted by register. Will of Margaret Thompson, 403. 16. Where, in a bequest to children of a class, the division of the fund is deferred until a future period, any child who falls under the description at the time fixed for such division, though born after the death of the testator, is entitled to participate. Est. of Wunder minors, 409. WILL (Continued). 17. It was duly proved that decedent had executed a paper which he had de WITNESS. See DIVORCE, 3. EQUITY, 4. 1. In a suit by the assignee in bankruptcy against a decedent's estate, a member 272. 2. One who is prima facie liable to the party calling him as a witness is not 3. A witness is bound to attend at the instance of either party, until his deposi- L11659 |