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contingent right of dower does not pass to the below on the ground that the bank had a full, assignee. The assignee's power of sale is limited complete and adequate remedy at law, by proto the estate which the bankrupt conveyed to ceedings which were instituted before the equity him. Whether or not there are judgment liens jurisdiction of the court was invoked and are against the bankrupt, does not, as to his wife, still pending; but, because the question of jurischange the quantum of estate which passes by dietion was not raised by demurrer, in limine, his deed. We adhere to the law as declared in appellants were ordered to pay the costs of refLazear v. Porter.
erence to the examiner and master. The parties We discover no reason to disturb the decree each appealed from so much of the decree as of the court, except as to the question of costs. was adverse to them respectively. For the reaThe case presents some strong equities in favor son above stated the appeal of the bank has been of the appellant. They are not sufficient to dismissed, and the only question presented by stop the appellee from maintaining her right of the record in this case is whether the defenddower, but we think all the costs of ascertaining ants below were so far remiss in not raising the the rights of the parties should not be imposed question of jurisdiction by demurrer as to justly on the appellant. An equal division of them subject them to the costs of reference. In courts between the parties will be just and equitable. of law the successful party is entitled to costs.
It is therefore ordered that the decree be so In equity his right is prima facie the same; modified as to impose one-half of all the costs but, equitable considerations, sufficient to outon each party, and thus modified the decree is weigh the prima facie right, and induce a chanuffirmed.
cellor to decree otherwise, may, and frequently For appellant, Messrs. Woodruff, Benson & do exist, and hence it is very properly said that Brainerd.
in courts of equity costs are in the sound discreContra, Messrs. J. C. Sturgeon, C. B. Curtis tion of the chancellor. Under our equity rules, and L. S. Morton.
the defendant may either plead, answer or de
mur, and he has a right, by answer, to present MAGUIRE'S APPEAL.
and insist upon some matters of defense, in law, The plaintiff's bill, after reference to an examiner and to the merits of the bill, of which he may also
master, was dismissed by the court below for want of avail himself by demurrer, or plea in bar. Reajurisdiction, and the costs of the references to the ex- sonable discretion should therefore be accorded aminer and master imposed on the defendants.
to him and his solicitor in determining the form Held, that the defendants were not bound to raise the question of jurisdiction by demurrer; that having pre- in which the allegations of the bill may be best sented this defense, inter alia, in their answer, and in- met. By demurring he may incur some risk; sisted on it before the master, they were not guilty of and sometimes it is of the utmost importance such remissness as should subject them to the costs of
that he should speed the cause by answering the references. Appeal from the decree of the Court of Com- promptly, and thus obtaining an early reference
to an examiner and master. In this case the mon Pleas, No. 4, of Philadelphia county.
appellants, without being ruled, elected to preThe plaintiff' below had obtained judgment against one McEntee and issued a fieri facias, sent their defense in the form of an answer, in under which there was a levy and condemna- which, inter alia, the want of equity in the bill tion of the land alleged to belong to McEntee. is distinctly asserted. This position was also
insisted on before the master, but he decided Thereupon the plaintiff filed this bill against the appellants, alleging that Mrs. Maguire had against them. In his opinion dismissing the acquired title to the land levied on by a volun- bill the learned president of the Common Pleas tary conveyance from McEntee, with intent to properly says, a bill for discovery may be sus
tained in equity where that is a necessary part hinder, defraud and delay his creditors, and praying for the cancellation of the alleged fraud- of the plaintiff's remedy, but in the present case
no discovery is sought. “Nor does the plaintiff ulent deed. The bill was dismissed on the ground that the plaintiff had his remedy at law said in the answer, having levied on and con
stand in need of any injunction; for, as is truly by proceeding with his levy and sale, buying demned the land, it could not be conveyed or in the land if necessary and trying title by
encumbered to the prejudice of the plaintiff.” ejectment.
*** “ The objection taken by the defendants For appellants, J. D. Bennett, Esq. Contra, Louis F. Benson, Esq.
to this proceeding before the master ought to
have been sustained. It was not their duty, as Opinion by STERRETT, J. Filed March 19, 1883. the master seems to have supposed, to put the
The bill filed by the Girard National Bank plaintiff to an election whether it would proceed against appellants was dismissed by the court l at law or in equity. They had a right to stand
upon their objection." The views thus ex- that this created a contract with the State which pressed by the learned judge are undoubtedly was beyond the interference of the Legislature. correct, and fairly lead to the conclusion that There is reason and authority for holding that appellants were not chargeable with such re- a supplement to a charter of incorporation which missness as should justly subject them to the merely confers upon it a new right or enlarges costs imposed by the decree. There is nothing an old one, without imposing any new or addito indicate that the mode of presenting their de- tional burden upon it, is a mere license or promfense was not adopted and pursued in the utmost ise by the State, and may be revoked at pleasure. good faith. They fully and fairly disclosed, in It is without consideration to support it, and their answer, the very ground of defense which cannot bind a subsequent Legislature: Johnthe court finally sustained, and on which alone son v. Crow, 6 Norris, 184; Christ Church v. Philthe bill was dismissed. It is true, they might adelphia, 24 Howard, 300. In the present age have raised the question of jurisdiction by de- of corporate greed it would be dangerous to hold murrer, but they were not bound to do so under the contrary doctrine. Were we to do so, corpenalty of paying costs.
porations, instead of being the creatures of the So much of tae decree as imposes on appel State, might become its masters. lants the costs of reference to examiner and But it is said that the appellees' charter and master is reversed, and it is now adjudged and the supplements thereto were passed at the same decreed that said costs, together with the costs session of the Legislature, with only a few days of this appeal, be paid by the appellee.
intervening, and that the organization of the
company took place after the passage of the supPHILADELPHIA & GRAY'S FERRY PASSEN- plement, and upon the faith thereof. GER RAILWAY CO.'S APPEAL.
We are not called upon in this case to decide
upon the legal effect of a supplement passed unA supplement to an act of incorporation is a mere license
der such circumstances. There are other quesof the State, and may be revoked by the State at any It is not a contract.
tions of controlling importance in the case. The
grant of exclusive privileges must have a reasonAppeal of the Philadelphia and Gray's Ferry able construction. The object was to protect the Passenger Railway Company and the Schuyl
appellees from competition, nothing more. It kill River Passenger Railway Company from the decree of the Court of Common Pleas, No. and its use by the appellants for a single square
is difficult to see how the laying down of a track, 2, of Philadelphia county.
by cars running in an opposite direction from Opinion by PAXSON, J. Filed March 19, 1883. those of the appellees, can produce competition.
The right of the appellants to lay their tracks Even if we are wrong in this, the principle is on Twenty-second street from Walnut to Chest- well settled that a franchise is property, and, nut streets is resisted by the appellees on two like any other species of property, may be taken grounds, viz: 1st. That the appellees have the by the Commonwealth by virtue of the right of exclusive use of said street by the express terms eminent domain upon making compensation. of their charter; and 2d. That the appellants, This principle was decided at the present term baving elected under their charter to occupy in the matter of the opening of Twenty-second certain streets with their tracks to avoid the ob- street, and it would be an affectation of learning struction at Twenty-second and Market, cannot, to cite the authorities which establish this prinnow that said obstruction bas been removed, ciple. It is equally clear that any one to whom relocate their tracks so as to occupy Twenty- the Commonwealth has elegated its power of second street from Walnut to Chestnut. I will eminent domain is clothed with the same right. consider these objections in their order.
It follows, that when the Legislature, by the The charter of the appellees (The Philadelphia Act of April 16, 1866, P. L., 934, incorporated City Passenger Railway Company) gives them the Schuylkill River Passenger Railway Comno exclusive use of the streets which they are pany (appellants), and authorized them to use authorized to use. But by the second section of Twenty-second street, the most the appellees an act, entitled “Supplement to an Act to in- can claim is compensation for the use of this corporate the Philadelphia City Passenger Rail- one square. The question of compensation, way Company, passed the 26th day of March, however, is not before us, and is not decided. A. D. 1859, which said supplement was approved The second objection has even less merit. the 31st of March, 1859, it was enacted that "the There was no election within the meaning of said company shall have the exclusive right to the cases cited by the appellees. A discussion use and occupy the streets named in the act to of them is, therefore, unnecessary. The right which this is a supplement.” It was argued | to occupy Twenty-second street was expressly given by the terms of the appellant's charter. self as executor of the will of Henry W. Sackett, But at Twenty-second and Market streets there a deceased partner of said firm; and was an impassable obstruction. In order to (2.) On an alleged settlement made by said avoid this their charter authorized them "to | William Pickersgill, Jr., as executor of the will use such portions of adjacent streets as may be of said Henry W. Sackett, deceased, with T. D. necessary." The only option which the appel- Jennings, surviving partner of the late firm of lants had, and the only election which they Sackett & Jennings, composed of said Henry made, was as to what streets they would occupy W. Sackett and T. D. Jennings. in order to avoid the obstruction. That election The facts are these : once made could not, in my opinion, be changed, (1.) The firm of Pickersgill, Lyon & Co., comand to this extent the doctrine of election ap- posed of William Pickersgill, Jr., 0. McGrail plies, and no further.
and Henry W. Sackett, was dissolved on the I am unable to see what standing the appel- first day of January, 1877, by mutual consent. lees have to raise this question. The Common- Mr. Sackett became the liquidating partner, wealth might do so, but she is silent; the city and as such took possession of the books of the of Philadelphia might do so, but her councils tirm. Mr. McGrail died about the first day of have expressly authorized the appellants to do April, 1877, without leaving any estate; and what they propose to do, while the soli:itor for Mr. Sackett died on the 29th day of October, the city, in a well considered opinion addressed 1979, leaving the affairs of the firm unsettled. to the chief engineer and surveyor, instructed on the death of Mr. Sackett, Mr. Pickersgill that officer that it is not only the right of the undertook the settlement of the firm affairs. appellants to lay their track on Twenty-second He found the firm to be insolvent, and has done street from Walnut to Chestnut, but that, in all that is practicable towards its settlement as view of the fact that the obstruction at Twenty- surviving partner. There are no outstanding second and Market streets has been removed, it claims that are collectable due thereto; and he is their plain duty to do so, and to take up their has paid in cash or by his individual assuinptracks on the streets which have been hereto- tion all the debts of the firm left unpaid by Mr. fore used to avoid said obstruction. The appel- Sackett. On the 230 day of March, 1883, he lees are uot in any sense the guardians of the made an account stated as surviving partner rights of the city or of the people, and may not of the firm of Pickersgill, Lyon & Co., and as interfere with the use of the streets beyond the executor of the will of Henry W. Sackett, deprivileges conferred by their charter. Their ceased, showing a balance due him on settleright to be heard upon such a question is more ment of accounts of the sum of $10,819.07, of than doubtful.
which $ was due before and $ The decree is reversed, the injunction is dis paid after Sackett's death. This account was solved, and the bill dismissed at the costs of the stated by him with a view to the presentation appellecs.
here of his claim to such balance and was made
in good faith. He offered at the audit to proOrphans' Court.
duce the books of the firm for inspection and In Re Estate of HENRY W. SACKETT, Dec'd. offer was declined. A trial balance was sub
examination of the parties interested; but his 1.) The Orphans' ('ourt has jurisdiction to allow con- stituted by consent of parties without waiver of
tribution out of the estate of a deceased partner on objection to the jurisdiction of this court. The the basis of a settlement made by the executor with
balance claimed by Mr. Pickersgill is believed himself as surviving partner where it is shown that such settlement was made in good faith and after
to be the amount justly due him as surviving proper investigation, although this involves investi-partner from Mr. Sackett's estate by way of congation of the partnership affairs.
tribution. (2.) It is not a valid objection to the balance claimed
It was objected to this claim: that it is made up in part of firm debts assumed by the surviving partner individually with a view to claim
(a.) That as the firm of Pickersgill, Lyon & ing contribution out of the deceased partner's estate Co. was composed of three partners, this court provided the firm be released.
has no jurisdiction. Audit of account of William Pickersgill, Jr., 10.) That Mr. Pickersgill could not make a executor, etc., of said decedent.
settlement with himself which would bind The contention in this case grew out of claims others; and based :
(c.) That evidence of settlement adduced was (1.) On an alleged settlement made by Wil- irrelevant and incompetent. liam Pickersgill, Jr., as surviving partner of the (2.) The firm of Sackett & Jennings also was late firm of Pickersgill, Lyon & ('o., with him- | insolvent. The assets of the firm were appro
priated to the payment of the firm creditors sented. It is the policy of the law to encourother than William Pickersgill and John F. age settlemente rather than compel resort to Jennings. These latter had the largest claims litigation with its expense and delay. and accepted the individual liability of T. D. It would have been worse than useless in this Jennings in satisfaction. John F. Jennings is case to have resorted in the first instance to a father of T. D. Jennings. Their release of the bill in equity for settlement of the partnership firm was made with a view to the settlement affairs of Pickersgill, Lyon & Co. In such proof its affairs and presentation of a claim of the ceeding Mr. Pickersgill, as surviving partner surviving partner to the balance due him for and executor, must have been both plaintiff allowance here arising out of such settlement and defendant, and it is fair to assume that the On the 23d day of March, 1883, William Pickers- facts upon which the settlement has been made, gill, Jr., as executor of the will of HI. W. Sack without expense or delay, would have been subett, deceased, made a settlement with T. V.mitted as the basis of the decree and have proJennings as surviving partner of the firm of duced the same result with the addition of exSackett & Jennings, showing a balance due.Mr. pense and delay. Jennings from the estate of Mr. Sackett by way It was said in Leland 1. Newton, supra, that of contribution of the sum of $7,562.68. Before if the surviving partner "becomes the personal making the settlement Mr. Pickersgill exam- representative of the deceased he becomes bound ined the books of the firm carefully and sat- as executor or administrator to render an acisfied himself that the balance claimed was count of his proceedings to the judge of probate. correct. If the above mode of settlement be That account necessarily involves the settlecorrect there is no doubt that the balance is cor- ment of the partnership affairs. There is no rect. The parties acted in good faith.
need of any other legal process because all perIt was also objected to this claim that this sons interested in the estate have an opporcourt had no jurisdiction and that individual tunity to be lieard in respect to the settlement." assumption by the surviving partner was not Substantially the same rule was laid down in payment of the firm debts as against the estates Williams' Estate, supra, per LEWIS, P.J. There of the deceased partner.
can be no doubt if, instead of a balance in favor
of the surviving partner here, there had been a Opinion by HAWKINS, P. J. Filed April 21, 1983. balance in favor of Mr. Sackett's estate, the in
(1.) It must be assumed in this case that Wil- dividual creditors and next of kin of the latter liam Pickersgill, Jr., occupies rightfully the might have compelled the executor to account dual relation of surviving partner of the late in this court for such balance on the presumpfirm of Pickersgill, Lyon & Co., and of execu- tion arising from the union of the characters in tor of the will of his deceased partner, Henry him of payor and payee, without a previous W. Sackett: Lindley on Partnership, --; Le- ascertaiment of such balance by bill in equity. land v. Newton, 102 Mass., 330; Williams' Estate, They would have had no other remedy; and 23 PITTSBURGII LEGAL JOURNAL, 118. If he the accounting would necessarily have involved rightfully occupies these relations he is invested an investigation of the partnership affairs : Wilwith the powers which are incidental to them; liams' Estate, supra. It they can invoke the and among these with the power of making jurisdiction of this court, it would seem to be a settlement of partnership aflairs: Leland v. hardship to compel the surviving partner to Newton and Williams' Estate, supru. There is resort in the first instance to a bill in equity to asan obvious reason why settlements made under certain his balance. It is clearly against equity. such circumstances should be closely scruti- The settlement made in this case was made nized. But it is not a well foundedi objection to in good faith and after proper investigation, their validity that he unites in himself the two and the balance claimed is no doubt correct. characters, for “it is a trite but invaluable The objection made to it, that the individual maxim, and of course conclusive evidence of assumption by the surviving partner of part of the law, that when different rights or charac- the indebtedness of the firm is not payment, is ters exist together, they are to be treated as if not well taken. The indebtedness of the firm they existed separately--cum duo jura in una has been paid by the surviving partner and the persona concurrent requam ac si essent in di- firm relieved from liability-whether by cash versis :') Freeman v. Caldwell, 10 Watts, 9. payment or novation is immaterial here. Nor Where, therefore, such settlements are shown is the objection that McGrail's estate is not a to have been made in good faith and after due party to the settlement well taken. McGrail investigation, there is no reason why they left no estate; the firm is insolvent; and the should not be regarded as valid wherever pre- I surviving partner only seeks contribution of Sackett's proportion of the loss; McGrail's es- payment of all the legacies and the expenses of tate is therefore not a party interested and it selling property, distributing, etc., I do direct would be a needless expense to raise an admin- shall be equally divided among the following: istrator to go through the form of settlement. My sister, Rebecca Culbertson, niy nephews, S. Nor is the fact that the settlement was made H. Richey and D. S. Richey, and the said Kate with a view to claiming the balance due a valid Swan, P. H. Miller in trust, as aforesaid, for objection to allowance. If the surviving part- Elizabeth Owens, Vasty J. Hammon, Jane Dorner has paid more than his proportion of the land, David Dorland, John Dorland, Isaac Dorlosses, it is only just that Mr. Sackett's estate land, Henry Dorland, Norris Homes, Maria should bear its proportion; and there can be no Shelling, Elizabeth Young, Newton B. Richey, wrong in seeking to enforce contribution. That Thomas Richey, Catharine Fryan, Susan Young, this mode was adopted rather than resort to the Louisa Richey, Elizabeth Richey, Mary Richey expense of a bill in equity is an advantage to and Cordelia Smith, Hunter Richey, and the the estate. of Mr. Sackett.
said three children of John Richey." The authorities cited, to the effect that the The names of the three sons of John Richey Orphans' Court had no jurisdiction to settle are, David A. Richey, Charles M. Richey and partnership affairs, were not cases of amicable Jervis F. Richey. settlement, but adverse, and have, therefore, no application to the facts of this case.
Opinion by OVER, J. Filed April 4, 1883. (2.) What has been said above, with refer- It is contended that the language used by the ence to the mode of payment of debts by nova- testator in the bequest of the special pecuniary tion and to the question of jurisdiction, is appli- | legacy to the three sons of John Richey, in concable to the claim of contribution presented by nection with the residuary clause, indicates his T. V. Jennings as surviving partner of the late intention that they should take together but firm of Sackett & Jennings.
one share of the residuary estate. It seems clear On the principle of McCormick's Appeal, 55 that the bequest of the legacy of five thousand Pa. St., 252, the amount due Mr. Pickersgill, at dollars is not made to them as a class, but that the death of Mr. Sackett, is payable out of the they are mentioned as the three sons of John individual estate of the latter by way of contri- Richey merely for the purpose of designating bution; and as respects debts paid since, con- the persons who should take. It is not given to tribution can only be enforced out of the surplus the sons of John Richey, but to the three sons, after payment of individual creditors : and the testator specifies that it is to be divideil Estate of Jane Wadsworth, 30 PITTSBURGH LE- equally among them. His intention that each GAL JOURNAL, 307.
should receive but one-third of the five thousand For executor, W. K. Jennings, Esq.
dollars is manifest, and had any of them died For creditors, J. M. Stoner, Esq.
before the testator his portion would have lapsed:
Yard's Appeal, 86 Pa. St., 125. Whilst if given Estate of DAVID RICHEY, Deceased. to them as a class it would go to the survivors:
Jarman on Wills, 1st Vol., pp. 311-2. If then Testator bequeathed to the three sons of J. $5,000, to be equally divided among them, and the residue of his
the bequest was not made to them as a class, it estate he directed “should be equally divided among is in effect the same as if a legacy had been given the following," and then named persons who stood in to each by name. different degrees of relationship to him, and added,
In the residuary clause the bequest is made "and the said three children of J." Held, that the three children of J. took as individuals and not as a class,
to them as “the said three children of Jobu and that they were entitled to a per capita distribution Richey.” And if the special pecuniary legacy of the residue with the other residuary legatees. was given to them as individuals and not as a
David Richey died testate, July, 1879. In his class, there can be no doubt that the residuary will be bequeathed numerous special pecuniary legacy was also so given; especially so in view legacies to collateral relatives, who stood in dif- of the fact that the other residuary legatees, who ferent degrees of relationship to him, and to all stood in different degrees of relationship to the by name, except in the 17th clause he made a testator, take per capita. It follows then that bequest as follows: "To the three sons of John they take as if each were named in the residuRichey, grandchildren of my brother Andrew, ary clause, and are therefore entitled to a per the sum of five thousand dollars ($5,000) to be capita distribution of the residue with the other divided equally among them.” He bequeathed legatees. to these legatees the residue of his estate in the For accountant, D. T. Watson, Esg. 18th clause, which is as follows:
For children of John Richey, dícssrs. Knox d “All the surplus, if any, remaining after the | Reed.