2.

Township of Vernon et al. vs. United Natural Gas Company.

There was no subject matter to support a contract.

3. The contract was void and without consideration.

4. The bill should be dismissed and the injunction dissolved at plaintiffs' costs.

Devine's Estate.

Wills—Codicil—Devisavit Vel Non-Accepting Legacy——Estoppel.

An issue devisavit vel non will not be granted on a petition of the legal representative of a legatee under a will, who, prior to his death, had approved the will and accepted from the executor the greater part of the legacy bequeathed to him, and assigned his interest therein for the payment of sums advanced to him by other persons.

An issue will not be awarded simply because there is contradictory testimony, but the competency of the testator will only be submitted to a jury where there are facts in controversy which must be determined by the aid of a jury. Where, after hearing the testimony, a chancellor could not allow a verdict to stand, no issue will be awarded.

Exceptions. No. 518 September Term, 1915. O. C. Allegheny County. Beatty, Magee & Martin, for respondent.

J. Harvey Scott and Thos. M. and Rody P. Marshall, for petitioner.

TRIMBLE, J., January 13, 1916.-The proceeding here is an appeal from the probate of a codicil to the decedent's will, with a petition for an issue devisavit vel non.

case.

The decedent executed her last will and testament on the 16th day of March, 1913. Among the bequests is one of five hundred dollars to Agatha McCormick, wife of the testatrix's brother Junius, and the petitioner in this It is conceded that this will did not dispose of all of the estate of the decedent, and that the residue would have passed to her said brother, if it had not been that the testatrix on the 4th of May, 1913, executed a codicil to her will, which, if valid, effectuates a different disposition. The will is admitted to be valid. The testimony offered to prove the invalidity of the codicil shows that the decedent for sometime before she executed her will was suffering from anemia, and continued to decline in health until her death, which occurred on May 8th, four days after the execution of the codicil. The time when this contested instrument was signed was Sunday morning about eleven o'clock. It was drafted by the decedent's lawyer, who wrote it after receiving instructions from the decedent. After the disposing clauses were finished by the scrivener, it was explained to her by him that if she desired to have these legacies made a charge upon her land it would be necessary to so declare in writing, and of this she approved. She was bedfast in a hospital, under the care of an eminent physician of this City, who was not called as a witness. She had a nurse and was looked after daily by one of the internes of the hospital. All of the witnesses testified that she was very weak. She signed her name to the will; but when she executed the codicil it was by mark, after having been raised up in the bed. The scrivener's wife and the nurse attested the signature, in the presence of the testatrix and her counsel. They together, with a number of friends, some of whom were interested as legatees, and others disinterested, who called upon the testatrix during the day and evening, all agreed that she had sufficient soundness of mind to know her property, and how she wished to dispose of it. The competency of the testatrix is denied by two of the physicians who were internes at the time of the testatrix's confinement in the hospital,

Devine's Estate.

and attended to her. Neither could give a clear description of the testatrix from memory, but when their recollections were freshened by the hospital's written history of the case, and conference with each other and the nurse, testified that the decedent was incompetent to execute the codicil, and this, notwithstanding, that one of them did not see her on the day when she is alleged to have made her mark to the instrument now attacked. The only other corroborating testimony was that of a daughter of the petitioner, who visited her aunt while she was sick, and saw her on Sunday, March 16th, 1913, but did not know the time of the day when she called.

The husband of the petitioner, Junius A. McCormick, was present in the hospital as a patient at the same time that the testatrix was there, and visited her in her room on the day of the execution of the alleged codicil. He received a bequest of one thousand dollars under this instrument, and when he learned of the manner in which his sister had disposed of her estate, expressed his approval. Afterwards on the 12th day of July, 1913, the executor paid to him seven hundred dollars of the legacy which was due, and thereupon he made an assignment, the material parts of which are as follows:

"I, Junius McCormick, do hereby sell, assign, transfer and set over unto J. W. Flowers the sum of seven hundred dollars, which money shall be taken out of and paid from that certain legacy of one thousand dollars bequeathed to me under the codicil to the last will and testament of Lauara A. Devine, deceased. * ** I further authorize and direct John F. Gloeckner, executor * * to pay said sum of seven hundred dollars from the amount due me under said legacy, to J. W. Flowers, and for so doing this shall be his sufficient warrant.

*

I further agree that said sum of seven hundred dollars shall be first paid from any moneys in said estate distributed to me, and in default of a sufficient amount to pay the entire legacy that the amount hereby assigned shall be paid in preference to the balance due me under said legacy.

I hereby authorize and direct the Orphans' Court of said County to distribute any moneys due me from said estate in accordance with the provisions contained herein."

On the 26th day of July, 1913, he executed a similar paper, whereby $136.33 of the amount due him upon his legacy, was assigned to the Fidelity Title & Trust Comapny of the City of Pittsburgh. The executor paid both of these amounts in advance of accounting and distribution.

Junius A. McCormick died on the 10th day of November, 1913, and rever expressed any intention of contesting the codicil of his deceased sister. No action was taken until September 17th, 1915, when notice was given to the Register of Wills that an appeal would be taken to the Orphans' Court, and the petition praying for an issue was filed on September 18th, 1915.

It is not only the strong and the robust who are competent to execute valid wills in Pennsylvania; but any person no matter how weak and debilitated in body, having any property to devise or bequeath, may do so, so long as one has sufficient strength of mind left to know what property he has, and who are the objects of his bounty. It was clearly established by reliable testimony that this testatrix knew her relatives, her friends and her property, and disposed of it according to her own notion of how it should be done. The testimony of the physicians that the decedent was incompetent amounts to a statement of a conclusion and is not persuasive, because it is not based upon the facts as they existed on the day when the codicil was executed. The decedent's lawyer wrote this instrument; his wife and the attending nurse were the witnesses, and all of them were clear and positive in relating facts which justify the conclusion that the decedent was

Devine's Estate.

competent. There is an abundance of reliable evidence to show that during the afternoon and evening, the decedent, while very weak, knew her friends and conversed with them, and none of them intimated that she was of unsound mind. She made a natural disposition; it was in accordance with her known views, feelings and intentions. Long before the codicil was executed, she had offered to make a gift of one thousand dollars to her lifelong friend Eleanor G. White, a legatee, who refused to take it. Her brother and his wife were together given fifteen hundred dollars by the will and codicil; two other friends are given five hundred dollars each, and her brother-in-law five hundred dollars. The testimony did not disclose any reason why her brother should have received the great bulk of her estate, nor that any person, except the testatrix, had anything whatever to do with the naming of the legatees, or the amount of the bequests, except one young girl Helen White, who had asked her to give her some bedroom furiture, and this fact emphasizes the correctness of the conclusion that the testatrix was competent, for it was she who told the scrivener of the request. An issue will not be awarded simply because there is contradictory testimony, but the competency of the testator will only be submitted to a jury when there are facts in controversy which must be determined by the aid of a jury, so that the conscience of the Chancellor will be satisfied; but if after hearing the testimony, the Chancellor could not allow a verdict against the will to stand, then no issue will be awarded: Roberts vs. Clements, 202 Pa., 198. However, if in this case the facts were so controverted that it would become necessary to submit them to a jury for a proper determination of the question of the soundness of mind of this testatrix, notwithstanding this fact there could be no issue awarded in this case, because Junius A. McCormick, the husband of the present petitioner, approved of the will of the testatrix, and accepted from the executor the greater part of the legacy which was bequeated to him, and assigned his interest therein for the payment of sums which were advanced to him by other persons. Having accepted under the will he could not now, if living, be heard to take against it, and when he could not, no greater right could pass by his will to his devisee or legatee.

The appeal will be dismissed.

Houston vs. Lewis.

Attorneys-Fees—Duties—Compensation.

Plaintiff, an attorney employed to "have the books made up," in his efforts to straighten out the affairs of a client financially involved, was justified in employing a bookkeeper, and should be allowed compensation for paying the bookkeeper, but the services rendered by plaintiff in arranging the accounts, etc., for the auditors were embraced within his general employment, and he should account for moneys paid for these services, otherwise he would be receiving double compensation.

In Equity. No. 1294 October Term, 1914. C. P. Allegheny County. Weil & Thorp, for plaintiff.

William A. Jordan, for defendant.

FORD, J., January 19, 1916.-This is an action based on a verbal agreement whereby defendant employed plaintiff, an attorney at law, to perform certain services.

The verdict of the jury was for the plaintiff and the cause is now before us on a motion, ex parte defendant, for a new trial, the defendant alleging that the verdict was against the weight of the evidence and against the charge of the Court.

The defendant was a stockholder and otherwise interested in the Pitt Theater Company, a corporation organized for the purpose of operating a theater known as the Pitt Theater. The Company was financially involved and its accounts confused. In March, 1914, the plaintiff, who resided and practiced his profession in the City of Philadelphia, was employed by the defendant to protect his interests in the Theater Company. The plaintiff remained in the City of Pittsburgh for a period of sixteen and a half weeks, during which he was engaged in performing the work he had undertaken.

In his affidavit of defense defendant admitted that he had employed plaintiff, but denied that plaintiff had rendered the services he agreed, or that the work done by plaintiff was reasonably worth a sum greater than the amount plaintiff had been paid.

The questions were of fact, depending on the credibility of the witnesses. A review of the testimony does not convince us that the verdict should be disturbed, except as the jury refused to allow certain credits claimed by defendant.

In addition to the credits admitted by plaintiff, amounting to $661.40, the defendant alleged that he made payments on account as follows:

Check on the Union Savings Bank $300
Check on the Union Savings Bank 100
Cash for expenses

100

The plaintiff admitted receiving $300, but claimed that it was payment for services rendered in preparing an account or in arranging data for auditors employed to prepare a statement showing the financial condition of the company. Of that amount he paid $150 to a bookkeeper employed by him, and claimed the balance as due him under a separate agreement made with defendant. In the hypothetical question upon which members of the bar based their opinions as to the value of plaintiff's services, the work described included plaintiff's services in arranging papers, vouchers, books of account and memoranda. No distinction was made between services performed in pursuance with general and the separate agreements, and it is apparent that a distinction was difficult. The plaintiff testified that it was a part of his agreement to search for and collect the check books, the vouchers, the records of business transacted and arrange the vouchers in chronological order. The plaintiff was instructed to "have

Houston vs. Lewis.

the books made up." He was justified in employing a bookkeeper and in paying him $150, but the services rendered by plaintiff in arranging accounts and preparing the books for the auditors were embraced with his general employment. The effect of the verdict is to allow plaintiff a double compensation. The plaintiff admits receipt of check dated June 30, 1914. That plaintiff is mistaken as to the purpose for which the check was received and applied appears from the testimony. The check was deposited to his account in a bank in Philadelphia. The facts relating to the check of July, 1914, were in dispute. Whether given in New York or in Philadelphia, but one check was given. There was no claim, nor did the evidence show that plaintiff had received two checks, each in the sum of $100.

We are of opinion that defendant is entitled to an additional credit for $150 of the $300 and $100 paid June 30.

ORDER.

Now, January 19, 1916, it is ordered that if plaintiff, within fifteen days after the filing of this opinion, shall file a remittance of all said verdict cver the sum of $2,717.23, a new trial is refused, otherwise a new trial is granted.

Knorr's Estate.

Distribution and Descent-Real Estate-Debts-Surplus Fund.

Where decedent's real estate is sold for the payment of debts, the surplus will be distributed to the child of one of decedent's son's who survived testator as personalty and not realty.

'Audit. No. 146 November Term, 1915. O. C. Allegheny County.

A. E. Sloan, for accountant.

TRIMBLE, J., December 6, 1915.-Lydia H. Knorr died testate and by the third paragraph of her will divided her estate equally among her five children, but the land of which she died seized was sold for the payment of her debts. One of her sons, Harry L. Knorr, who survived his mother, died leaving to survive him a minor child who is represented by a guardian. Only a portion of the fund derived from the sale of the land which Lydia H. Knorr owned was needed for the payment of her debts and there is a balance now ready for distribution. The guardian of the minor child claims that the child whom it represents is entitled to distribution of this fund as personalty and the accountant claims that it should be distributed as realty. The guardian's counsel cites Sayer's Appeal, 79 Pa., 431, where it is said: "The general rule is that if land be sold for a specific purpose, the surplus money shall, as between the heirs and next of kin, be considered as land, so as to vest in the persons who would have been entitled to rt had it remained unconverted. But after it has so vested in the persons entitled, it is to be treated as money in his hands, and, in case of his subsequent death, goes to his personal representatives as personal estate. It cannot retain its original character forever." This statement of the law applies to the facts here, and the fund for distribution is therefore personalty.