ity. they must be, in determining whether they had not acted in perfect good faith, but had set forth a good defense. The agreement is taken advantage of her. Upon a rehearing the evidence of what the parties to it agreed it was found as a fact by the same judge to do, but their manifest intention of a mere that at the time of the wife's death sbe was pro rata liability cannot be given effect un-indebted to her husband, for moneys expendless it be shown what they all understooded by him in the improvement of her real esand agreed was to be the basis of such liabil- tate, in payment of taxes on the same, etc., In showing this by parol testimony, and the sum of $7,422.82 was awarded to his the written agreement is not varied nor con- estate in payment of principal and interest tradicted, but simply explained, that it may due for such expenditures. From this award be carried into effect as the parties to it there is an appeal by the administrator of intended. the wife, on the ground that there was not sufficient evidence to sustain it, and the executor of the husband has appealed because the whole claim based on the $10,000 note was not awarded to him. From an examination of all the testimony in the case our judgment is that the award appealed from by both parties is just, and we therefore dismiss each appeal at the cost of the appellant. The appeal is dismissed, and the order of the court below, discharging the rule for judgment for want of a sufficient affidavit of defense, is affirmed. (252 Pa. 302) In re GREGG'S ESTATE. (Supreme Court of Pennsylvania. 1916.) Jan. 3, 236 MENT NON OBSTANTE VEREDICTO. (252 Pa. 251) DAVIES v. CITY OF PITTSBURGH et al. EXECUTORS AND ADMINISTRATORS CLAIMS AGAINST ESTATE-DETERMINATION. (Supreme Court of Pennsylvania. Jan. 3, 1916.) On a hearing of a claim by the representa-1 MANDAMUS 178 PROCEDURE - JUDGtives of a husband against his wife's estate on a demand note for $10,000, where the auditing judge found on sufficient evidence that the wife was indebted to her husband in the amount of $7,422.82 which he had expended to improve her estate and pay taxes, the allowance of that sum and disallowance of the balance of the claim was proper. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 841, 8422; Dec. Dig. 236.] Appeal from Orphans' Court, Allegheny County. In the matter of the Estate of Lorena Y. Gregg. From a decree dismissing exceptions to adjudication, Tom C. Smith, administrator, and another appeal. Affirmed. Argued before BROWN, C. J., and MESTREZAT, POTTER, MOSCHZISKER, and FRAZER, JJ. John O. Wicks, of Pittsburgh, Otto Kohler, of Meadville, and Elisha W. Criswell, of Franklin, for appellant Smith. Frederic W. Miller, of Pittsburgh, for appellant Fidelity Title & Trust Co. PER CURIAM. Lorena Y. Gregg was the wife of Edward R. Gregg. She died May 9, 1913, and he on the 25th of the following month. At the adjudication of the account of the wife's administrator, the executor of the will of the husband presented a claim against her estate on a demand note, for $10,000, executed by her March 31, 1913, and payable to the order of her husband. The auditing judge first disallowed the claim on the ground of the presumption of a dominant influence of her husband over his wife and of the lack of any evidence showing that he had acted in good faith and had taken no advan tage of his influence over her, and, because, the inference from the evidence was that he In view of Act June 8, 1893 (P. L. 345), providing that plaintiff may demur to the returL to an alternative writ of mandamus or he may plead to and traverse any and all of the material facts therein contained, and defendant shall reply, take issue, or demur, and like proceedings sha!! be had as in like proceedings at law, the procedure prescribed by Act April 22, 1905 (P. L. 286), providing for entry of judgment non obstante veredicto, is applicable in mandamus proceedings, though plaintiff pleaded or traversed the return instead of demurring. [Ed. Note. For other cases, see Mandamus, Cent. Dig. §§ 396-400, 410; Dec. Dig. 178.] 2. MUNICIPAL CORPORATIONS 216(1)-OFFICERS CIVIL SERVICE COMMISSION-"CONFIDENTIAL CLERK." In Act May 23, 1907 (P. L. 206), placing one confidential clerk to the mayor and director of each executive department in cities of the second class, in the exempt class of the civil service system, the term "confidential clerk" is not limited to positions involving matters of secrecy, but includes those involving trust or confidence in a person occupying a particular employment, and any relation in which one represents another in performance of duties involving skill, integrity, and trust is a confidential one. Corporations, Cent. Dig. § 578; Dec. Dig. [Ed. Note. For other cases, see Municipal 216(1). For other definitions, see Words and Phrases, First and Second Series, Confide.] 3. MUNICIPAL CORPORATIONS 216(1)—OffiCERS CIVIL SERVICE POWER OF COMMISSION. Appeal from Court of Common Pleas, Alle-lating civil service in cities of the second gheny County. class, divides city employment into classified and unclassified service, and as to the former provides in section 11 that the offices, positions, and employments "shall be arranged by the civil service commission in four class Petition by David D. Davies for writ of mandamus to the City of Pittsburgh and others, to compel reinstatement of plaintiff as chief clerk of the Department of Public Works of the city. From a judgment for de-es, to be designated as the exempt class, the fendants non obstante veredicto, plaintiff appeals. Affirmed. Argued before BROWN, C. J., and MESTREZAT, POTTER, MOSCHZISKER, and FRAZER, JJ. Harry Diamond and J. B. Eichenauer, both of Pittsburgh, for appellant. Charles A. O'Brien and Hermann F. Ruoff, both of Pittsburgh, for appellees. competitive class, the noncompetitive class and the labor class." Section 12 of the act provides, inter alia, that in the exempt class shall be included "one secretary and one confidential clerk to the mayor, and one confidential clerk to the director of each executive department," and further that "in addition to the above there may be included in the exempt class other offices or positions, except laborers, for the filling of which compet be found by the civil service commission to be impracticable." From the time this act went into effect until December 11, 1913, the position of chief clerk in the several executive departments of the city of Pittsburgh was treated as being in the exempt class and as the confidential clerk to the director referred to in the above section of the act of 1907. FRAZER, J. This was a petition for man-itive or noncompetitive examinations shall damus against the city of Pittsburgh, the mayor, the director of the department of public works, and the civil service commissioners of that city, to compel them to reinstate plaintiff as chief clerk in the office of the department of public works. An alternative writ of mandamus was issued, defendants filed an answer which was traversed by plaintiff, and on the trial of the issue thus presented, after documentary and oral evidence was offered, the court directed the jury to return a verdict for plaintiff and refused a request on part of defendants for binding instructions in their favor. Upon subsequent motion by defendants judgment non obstante veredicto was entered, and from this judg-position was "construed to be the confidential ment plaintiff appeals. [1] The first question for consideration is the power of the court to enter judgment non obstante veredicto in mandamus proceedings. This is decided against plaintiff's contention by section 15 of the act of June 8, 1893 (P. L. 345) which provides that: "Plaintiff may demur to the return or he may plead to or traverse all or any of the material facts therein contained; the defendants shall reply, take issue or demur, and like proceedings shall be had as in other actions at law." [2, 3] In December, 1913, the commission proposed certain amendments to the civil service rules then in force in defendant city, one of which placed in the exempt class "one stenographer to the head of each executive department," with the explanation that this clerk exempted in the act of May 23, 1907." These amendments were adopted December 11, 1913, and the position of chief clerk was thereupon placed in the noncompetitive class. The new commission, which took office January 5, 1914, duly adopted on January 21, 1914, an amendment to the rules by which the change made by the former commission respecting the position of confidential clerk was repealed, and the position of chief clerk of each department was again treated as the By this section all questions of fact are to confidential clerk provided for in the act of be decided in the same manner as other is- 1907. Plaintiff having previously taken the sues of fact, so that the court may be in- noncompetitive examination was on Decemformed regarding the merits of the case for ber 23, 1913, while the position of chief clerk the purpose of determining whether or not was in the noncompetitive class, appointed mandamus should issue. There is no appar- to that position and at once entered upon his ent reason why the procedure established by duties. On February 7, 1914, after the placthe act of April 22, 1905 (P. L. 286), providing of the position of chief clerk in the ing for entry of judgment non obstante vere-exempt class by the new civil service comdicto, should not apply here as in other cases. The act expressly relates to "the trial of any issue," which words are certainly sufficiently broad to cover an issue in mandamus proceedings. It is immaterial that plaintiff pleaded to or traversed the answer instead of demurring. The question under the act of 1905 is not confined to the legal sufficiency of the answer or any part of the pleadings, but includes the question whether the evidence presented justified a submission of the case to the jury. mission, the director of public works discharged plaintiff without stating any cause and appointed another person to that position. Upon being refused reinstatement, plaintiff appealed to the civil service commission, which body decided it was without authority to review the discharge by department directors of employés in the exempt class. Plaintiff followed this action by his petition for an alternative writ of mandamus. The lower court held the commission to be without power to limit the directors' come within the scope of the employment of a confidential clerk. The close association' between the chief clerk and the head of the department makes it highly desirable for the latter to be free to choose for the position one in whom he has personal confidence and trust. That the efficient conduct of the affairs of the department also requires the presence of an assistant whose loyalty to his superior, without the feeling of antago by the act of 1907 to such persons as stenographers, and that he should be free to choose a person in whom he had confidence, both as to ability to fill the position and as to honesty and integrity, regardless of the qualifications of such person as a stenographer. The action of the commission taken in December, 1913, was accordingly held to be void, and that the position of chief clerk remained in the exempt class, and therefore the act of the director in discharging plain-nism or want of harmony which would exist tiff was not improper. in many cases, where, for instance, the two men were of opposite political views, cannot be questioned. No doubt these considerations caused the Legislature to provide that a confidential clerk in each department should be in the exempt class, thus restricting to that extent the power of the civil service commission. To permit the commission to say that this confidential clerk shall of the affairs of the department, would place in that board the power to practically nulIt follows the court was not in error in enlify the provisions of the civil service law. tering judgment for defendant non obstante veredicto. Judgment affirmed. - (252 Pa. 298) In re ARNOLD'S ESTATE. Appeal of STONE et al. (Supreme Court of Pennsylvania. Jan. 3, 1916.) 1. EXECUTORS AND ADMINISTRATORS 111(8) CLAIMS AGAINST ESTATE ATTORNEY'S FEES. In proceedings by an executor to sustain charitable and religious bequests of the testator and defeat the claim of decedent's husband, a claim for fees of counsel employed by the executor was properly disallowed. The determination of the case as now before us depends upon what the Legislature meant by the term "confidential clerk" to the director of each executive department of city government. The term "confidential" is not necessarily limited to such position as involved matters of secrecy, but includes those which involve trust and confidence in the person occupying the particular employ-be one having no active part in the conduct ment. Any relation in which one person represents another in the performance of duties involving skill, integrity, and trust is a confidential one within the general legal acceptation of the meaning of that term. People ex rel. Crummey v. Palmer, 152 N. Y. 217, 46 N. E. 328. At the time of the passage of the act of 1907, the position of chief clerk existed in practically every departmental office of cities of the second class. So far as appears from the evidence here, there was no occasion for the services of a secret clerk in such departments, and no such position existed previous to that time. The Legislature will be presumed to have known of the methods or system of conducting the affairs of the city, and in absence of a clear intention indicated in the wording of the act, we will not infer an intention to create without any apparent necessity a new office theretofore unknown to which was attached a substantial salary. The duties of a chief clerk in each department were such as to fully meet the description of confidential clerk used in the act. He had full charge of the records in the office of his department; attended to all the details of the office; acted in a confidential capacity to the director and accompanied him to council meetings for the purpose of aiding him in matters requiring attention; interviewed people who called to see the director; attended to the details of advertising for and procuring bids for contracts; had charge of the pay roll of the chief bureaus under his department; countersigned all bills, including pay rolls; attended to the matter of procuring appropriations for various purposes connected with the department; received and examined all reports from the various heads of the bureaus under his department; attended to other affairs of the head of his department as they arose; and had general charge of the office. These various and important duties are such as would naturally [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 460; Dec. Dig. 111(8).] 2. EXECUTORS AND ADMINISTRATORS 111(3) An executor or administrator who incurs savit vel non cannot charge such expenses to the expenses by becoming a party to an issue deviestate unless it is benefited thereby. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. 88 451-453; Dec. Dig. 111(3).] Appeal from Orphans' Court, Allegheny County. In the matter of the estate of Isabella Arnold, deceased. From a decree dismissing exceptions to an adjudication, William A. Stone and others appeal. Affirmed. See, also, 249 Pa. 348, 94 Atl. 1076. Over, P. J., filed the following opinion in the orphans' court: The executor has claimed credits in the supplemental account filed by him for amounts due. W. B. Rodgers, Esq., as counsel for the estate May 1, 1912, to May 1, Counsel fees paid Wm. A. Stone, Esq. 3,500.00 1914 And balance due him as counsel for $5,000.00 the estate from January 28, 1915.. 4,000.00 To which exceptions are filed, alleging that: the costs and charges attending it. It ought "These fees were not for services to the execu- to be left to them to employ counsel or not, as tor, but in behalf of certain legatees, charitable they please; and consequently to bear the exand religious institutions. The sole subject- penses of doing so.' And on page 444 of 3 matter of appeal was the alleged invalidity of Watts & S.: "The person named as executor these legacies, and these legatees only were in- in the writing, when advised that its validity terested and should pay the counsel fees." Ex- as a will is about to be contested, ought to give ception is also taken to the items of credit notice to those who are named in it as legaclaimed for $200, expenses of two trips to Phil- tees or devisees, so that they may employ counadelphia, printing bill of appellees $51.20, cer- sel, if deemed requisite, or authorize him to do tified copy of opinion, Supreme Court, $6.50, so at their expense." expenses in reargument Supreme Court, $48. There is a valid technical objection to the credits claimed for amounts due counsel, as the accountant should claim credit only for payments actually made by him. These credits will therefore be stricken from the account, and the amounts claimed to be due counsel treated as claims against the estate. The testatrix gave the income of her estate to her husband, who survived her, for life, then gave certain charitable bequests, and the residue of her estate to the executor, in trust for charitable and religious uses. Some exceptions were filed to his original account, which were dismissed, and it confirmed absolutely. The important question raised at the audit was whether the charitable and religious bequests were void, and should be distributed under the intestate laws to the guardian of the surviving husband, who had been adjudged a feeble-minded person, as next of kin to the testatrix. They were held by this court to be valid, a decree entered accordingly, and on appeal taken by the guardian to the Supreme Court the decree was reversed, and distribution directed to be made of the void charitable and religious bequests to the legal representative of Mr. Arnold, who died whilst the appeal was pending. One of the assignments of error in this appeal alleged that the court erred in not reducing the executor's commission. It was not, however, discussed in appellant's nor in the appellee's paper book. All the other assignments related to the question of the validity of the charitable and religious bequests, the right of the surviving husband to them under the intestate laws, and as to his election to take against or under the will. [1,2] There can be no question that reasonable counsel fees for services rendered for the accountant as executor should be allowed; but, as executor, no duty devolved upon him to employ counsel to sustain the charitable and religious bequests, or to defeat the claim of the surviving husband, because as to the parties to the controversy he was merely a stakeholder, had no interest in the questions, and counsel fees rendered in that respect cannot be allowed out of the fund here, which is to be distributed under the intestate laws, to the administrator of testatrix's deceased husband. This conclusion is supported by the following cases: Mumper's Appeal, 3 Watts & S. 441, where it was held that, "An executor is not entitled to credit in his administration account for the amount of fees paid to counsel for their professional services in trying an issue devisavit vel non, involving the validity of the will of his testator," Mr. Justice Kennedy saying (page 443 of 3 Watts & S.): "If the person appointed by it [the will] as executor be named also as a legatee or devisee, then, as such, he may be deeply interested also in establishing it to be the last will of the deceased. But it is clear that creditors and the rest of the world have no interest whatever in the question. It would therefore seem to be just, as well as equitable, that those who have an immediate and direct interest in the question should be left to contest and bear all Yerkes' Appeal, 99 Pa. 401, at page 409, where it was said: "It is well settled that an executor or administrator who becomes a party to an issue devisavit vel non must look to those who authorized him to engage therein, and cannot charge his expenses to the estate he represents, unless the latter is benefited by the proceedings. Dietrich's Appeal, 2 Watts, 332; Koppenhaffer v. Isaacs, 7 Watts, 170; Geddies' Appeal, 9 Watts, 284; Mumper's Appeal, 3 Watts & S. 441; Rankin's Appeal, 10 Wkly. Notes Cas. 235; Royer's Appeal, 13 Pa. 569, The general principle underlying these cases is that an executor is not bound to defend his testator's will, but, if he undertakes to do so, it must be as the agent and in the interest of those benefited by his action." And Titlow's Estate, 163 Pa. 35, 29 Atl. 758. In the latter case some exceptions to the rule were noted, and in Alexander's Estate, 211 Pa. 124, 60 Atl. 511, whilst the rule was approved, it was held that the case was within the excep tions. The case at bar, however, is clearly not within any of the exceptions to the rule. The proposition is, in effect, that the administrator of the estate of the surviving husband shall pay out of his estate the fees of counsel employed to defeat his claim, and surely it is not supported by any principle of law or equity. It is admitted that $1,500 is reasonable compensation for services rendered by Mr. Rodgers to the executor, and this amount will be distributed to his executors, and their claim for $3,500 additional compensation is disallowed. Col. Stone's services were rendered after the appeal was taken to the Supreme Court and Mr. Rodgers' death, for the benefit of the charitable and religious legatees, and for the purpose of defeating the claim of the surviving husband. His claim for $4,000 balance due for these services therefore cannot be allowed, and the exceptions to the credits for $3,500 paid him muşt be sustained, and the accountant surcharged with that amount. He must also be surcharged with items of credits referred to in the second exception to his supplemental account, because, as executor, he had no authority to make these payments. Argued before BROWN, C. J., and MESTREZAT, POTTER, MOSCHZISKER, and FRAZER, JJ. Stephen Stone, W. I. King, and L. F. Adelman, all of Pittsburgh, for appellants. William M. Hall and D. T. Watson, both of Pittsburgh, for appellee. PER CURIAM. Each of these appeals is dismissed, at the costs of the respective appellants, on so much of the opinion of the learned auditing judge as disallowed the claims for counsel fees. What is there said applies equally to other credits claimed by Robert H. Leitch, executor, as set forth in the seventh and eighth assignments of error. (115 Me. 79) second part, it was ready and willing at its own STILKEY & WHITNEY REAL ESTATE CO. proper expense and charge to execute, acknowl v. RUNDLE et al. edge, and deliver to said defendants a good and sufficient warranty deed, upon request therefor, (Supreme Judicial Court of Maine. May 13, and otherwise has performed all the conditions of said agreement on its part. AGES. 1916.) 322 REMEDIES VENDOR AND PURCHASER [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. 88 944-947; Dec. Dig. 322.] Report from Supreme Judicial Court, Cumberland County, at Law. Action of debt by the Stilkey & Whitney Real Estate Company against James P. Rundle and others. Held on report. Judgment for defendants. Argued before SAVAGE, C. J., and CORNISH, KING, HALEY, HANSON, and PHIL BROOK, JJ. Howard Davies and Thomas L. Talbot, both of Portland, for plaintiff. Robert B. Seidel, of Biddeford, for defendants. HANSON, J. On report. Action of debt on bond to recover the sum of $7,500 as liquidated damages for the alleged breach of the conditions of the bond, which is substantially set out in the declaration. The declaration follows: "Said plaintiff avers that the defendants not tiff to execute and deliver a good and sufficient only failed and neglected to request the plainWarranty deed of said premises on or before the 1st day of June, A. D. 1915, but also refused, failed, and neglected to comply with the terms of said agreement on their part, to the of seven thousand five hundred ($7,500) dollars. damage of the plaintiff, as it says, in the sum "Yet the said defendants, though requested, have not paid the same, but neglect so to do, to the damage of the said plaintiff (as it says) in the sum of ten thousand dollars." The defendants pleaded the general issue, with the following brief statement: "First. That said plaintiff at any of the times mentioned in its writ was not the owner of the times had no legal interest therein, and was land mentioned therein, and during all of said never able to convey said land, or to compel the conveyance of said land to said defendants according to the terms of said deed, all of which was known to the defendants: "Second. That said plaintiff, at said Biddeford, on the 2d day of December, 1915, notified said defendants that it was unable, and would be unable, to convey said land according to said deed on or before the 1st day of June, 1915, unless said defendants would pay said plaintiff the sum of $4,500 in addition to the sum of $500 which defendants had paid at the time of the execution of said deed, so that plaintiff might secure an option of said land: waived by mutual consent of said parties." "Third. That then and there said contract was House, in Saco. When Mr. Stilkey reported later, the defendants informed him that they were interested in a better proposition-the Hotel Thatcher. After ascertaining from the defendants the names of the owners, Mr. Stilkey went to see them, and, as appears in the following testimony of the plaintiff, was successful: Mr. Stilkey, the president of the plaintiff "In a plea of debt, for that on the 25th day company, states that he was employed by of November, A. D. 1914, at said Biddeford, to the defendants to make inquiries concerning wit, at said Portland, the plaintiff and the de-a lot of land in the rear of the Cote Opera fendants entered into an agreement in writing under their hands and seals whereby the plaintiff, in consideration of the sum of forty-seven thousand ($47,000) dollars, to be fully paid as provided in said agreement, agreed to sell and convey to the said defendants by good and sufficient warranty title the following described lot or parcel of land with buildings thereon: Four-story block, situated in Biddeford, Maine, at the corner of Main and Adams streets, known as the Hotel Thatcher, * free of all incumbrances. The said defendants, in consideration as aforesaid, agreed to buy and purchase said premises at the said consideration and to pay the same as follows, to wit: Five hundred dollars ($500) at the time of signing said agreement, and the balance of said fortyseven thousand ($47,000) dollars at the time of taking title. The said plaintiff, upon payment of the aforesaid consideration in the manner aforesaid, and upon request, agreed at their own proper expense and charge to execute and deliver to the said defendants or their assigns a deed of the aforesaid premises on or before the 1st day of June, A. D. 1915. "And it was mutually agreed and understood that, should either party or parties to said agreement fail or neglect to fulfill his part of said agreement, he should forfeit as damages to the other party the sum of seven thousand five hundred ($7,500) dollars. Said plaintiff avers that on the 25th day of November, A. D. 1914, and on each and every other legal day since that date, up to and including the 1st day of June, A. D. 1915, or until such time as there was and has been a breach of the conditions of the said agreement on the part of the party of the "Q. And whether or not you found from the owners of the property that you could buy it? A. I did. Q. And whether or not, as a result of that information, this contract was made? A. Yes, sir." Mr. Stilkey was paid $500 upon the signing of the bond, and in two or three days, after seeing the owners of the property, he called on the defendants and told them the owners of the property wanted $4,500 more, and he says the defendants agreed to furnish the money. The latter statement is denied by the defendants and negatived by the plaintiff's own testimony, where Mr. Stilkey states that Mr. Rundle, one of the defendants, demanded the return of the $500; and for the purpose intended, of introducing testimony to vary the terms of the written contract, it lacks the clearness, strength, and convincing quality requisite to have that effect. On direct examination Mr. Stilkey was asked: For other cases see same topic and KEY-NUMEER in all Key-Numbered Digests and Indexes |