property, for the use of the widow, and without | vided by the Act of 9th April, 1849. Of the such appraisement she was not entitled to claim latter Act it was said in Neff's Appeal (9 Harris, out of the proceeds of realty. And the peti-243), that "the object of the Legislature was to tioner prayed that a citation be granted directed prevent the sale of the property; and every act to the widow to show cause why the decree made in the behalf of the widow should not be vacated and the allowance of $300 so made to her be set aside. To this citation Caroline Jacobs, lately Caroline Somers, filed an answer, representing that the decedent fully intended to provide for her by his will, but that she had never received a dollar of the estate; that she filed her petition for allowance of $300, just after she understood the said executors had converted the whole of the estate real and personal into cash, as required by the will; and before any lien claims against said property had been fully settled; that she had labored under the disadvantage of being without counsel and of not being able to read or write, and whilst she had made several demands of said executors for her rights and property as widow of said decedent, she did not know until about the time she filed her petition that she would be required to take legal steps to obtain her portion of the estate. John Shallcross, for petitioner. or omission of the debtor which amounts to an acquiescence in or an affirmance of the sale is in direct contravention of that object.' The cases were reviewed in Hufman's Appeal (31 P. F. Smith, 329), and it was held that the appraisement was a necessary preliminary to the allowance of the claim. The distinction that the creditor in that case and the heir in this made the objection, is of no consequence where the question is one of compliance with a statutory direction. Were it not for that provision in the Act, we should hesitate to grant the prayer of the petition. The decree of confirmation was obtained in May, 1880, without exception on the part of the petitioner, who was executor as well as heir, and who now seeks to vacate it. The answer of the widow, which must be taken as verity, because it was not replied to, while it admits that the petition for the allowance was not filed until after the sale, declares that the claimant had made several demands upon the executors for her rights as widow. If the nature of these demands had been specifically set forth, it might appear that under them it was March 5, 1881. THE COURT. The claim the duty of the executors to have caused an of the widow to the exemption allowed by the appraisement to be made, and that failing in that Act of 14th April,. 1851, was made and pub-duty, they are liable in an action by the widow. lished after the sale of her husband's real estate, but before the resale which had become necessary, was effected. The petition was in general terms to be permitted to retain $300 out of the husband's estate. No appraisement, either of the real or personal estate, was asked for or had. Under these circumstances, the allowance by the Court, of the exemption, was improvidently made. The mere delay in presenting the claim would not have availed to defeat it, if expense had not been already incurred by the executors in settling the estate and in the proceedings to effect a sale of the realty. (Baskin's Appeal, 2 Wr. 65; Davis's Appeal, 10 Cas. 256.) Nor would the fact that the widow had remarried. It is true that it was doubted in Burk v. Gleason (10 Wr. 297), whether a woman who had remarried after her husband's death, was a widow within the meaning of the Act. But it was afterwards assumed in Commonwealth v. Powell (1 P. F. Sm. 438) that the right of the wife, under the Exemption Act, having attached while she was yet a widow, could not be divested by her subsequent marriage. The defect which we are compelled to regard as fatal in the application made by the widow, was her omission to demand an appraisement. By the Act of 1851, the property to be retained shall be appraised in the same manner as is pro (Compher v. Compher, 1 Cas. 31.) Such misconduct on the part of the executors would not, however, entitle the widow to impeach the sale nor to claim the proceeds. (Neely v. McCormick, 1 Cas. 255; Marks's Appeal, 10 Cas. 36.) Seven months elapsed between the entry of the decree and the filing of the petition to annul it. In Metz's Appeal (11 S. & R. 204) the question was left untouched whether the Orphans' Court had the power to open and re-examine an administration account after the close of the term during which it was settled. The terms of that Court, by the Act of 14th April, 1834, § 57, are made to correspond with those of the Common Pleas. The Act of 13th October, 1840, however, compelled the opening of such accounts incertain cases, at any time within five years after their confirmation, and long before the passage of that Act, it had been the practice of the Court to grant relief where error was apparent, and no new rights had intervened, without much regard to the question of time. (George's Appeal, 2 Jones, 260) There is nothing therefore in the delay which has taken place, to prevent the vacation of the decree in this case. The prayer of the petition is granted, and the decree confirming the widow's exemption cla m is vacated. Opinion by ASHMAN, J. WEEKLY NOTES OF CASES. Meadow Company, and James J. Keating, for certain goods and chattels distrained by the Greenwich Island Meadow Company, for assessments levied upon the land of the said Elizabeth VOL. IX.] THURSDAY, APRIL 14, 1881. [No. 34. L. Devine, which were overdue and unpaid. Supreme Court. Jan. '81, 132. Rutherford et al. v. Maynes. Constitutional law-The Greenwich Island The said Greenwich Island Meadow Company avowed, and James J. Keating made cognizance as bailiff, for taxes in arrear. The facts of the case as they appeared upon the trial before LUDLOW, P. J., are fully reported, ante, 221, q. v. The Judge charged the jury, as Jan. 12, 1881. follows: "I will bring this case down to a very narrow limit. It is somewhat complicated and involves questions of law too important for me to consider at this time. But there are two quesMeadow Company-Acts of 1760 and 1804, these assessments made by this association of intions which I want you to decide. First, were relating to Assessments upon owners and pos-dividuals before or after the tenant went into sessors of land, under special Acts of Assembly, for making and repairing dams, em- fore the tenant went into possession, then your possession? If these assessments were made bebankments, etc.-Construction of special en-verdict will be for the plaintiff; for it would be a abling Acts in their relations to the Bill of violation of the Bill of Rights that his property Rights-Powers under such Acts. The Greenwich Island Meadow Company had authority, under the Act of April 12, 1760 (1 Sm. Laws, 227), and the supplement thereto, passed Jan. 30, 1804 (4 Sm. Laws, 109), to levy assessments upon the owners and possessors of certain marsh and cripple land in the City of Philadelphia, for the purpose of making dams, ditches, embankments, etc., to prevent overflow; the Acts directing the managers of the said company to ascertain the names of each possessor of every acre of the said land, and, having estimated the expenses for the year, to rate and assess each owner or possessor his proportionable part and to give a list thereof to the treasurer, who should demand and receive from every person in such list the sum wherewith such person is charged; and directing further, that, if any person should neglect or refuse to make payment within thirty days from the time of such demand, it should be the duty of the said treasurer to levy the said tax by distress and sale of the goods and chattels of the said delinquent, in the manner prescribed by the Act of April 11, 1799. In an action of replevin to recover certain goods of a tenant distrained under the provisions of the said Act of Assembly, to enforce payment of assessments: Held (affirming the judgment of the Court below), that if the assessments were made before the tenant went into possession, he was not bound to pay them. The delinquent is he who is assessed and neglected to pay for thirty days after demand. One whose name is not on the list, and neither owned nor possessed the land when the assessment was made, is not within the terms of the statute. Held further, that every statute of this character, which authorizes assessments upon the owners for improvement to their lands, ought to be strictly construed. If it admit of two constructions, one consistent with the Bill of Rights and the other repugnant, it should receive the former. The persons authorized to impose the assessments have just the powers, and no more, that are given expressly or by necessary implication. Error to the Common Pleas No. 3, of Philadelphia County. should be taken to pay the debt of another man. But if, on the other hand, you should find that the assessments were made after the tenant went into possession, then you may find for the defendants, provided notice was given as required by this Act. And this brings me to the second point, and it is an important question in this case. These Acts are highly penal and summary, and must be strictly construed. They require that thirty days' notice shall be given to the owner or possessor, or to his or her agent authorized to accept service of notice, and if no such notice was given to the owner, or to an agent authorized to accept service for him, then you will find for the plaintiff. But, if you find such notice was given, then you will find for the defendants, provided you further find that the assessments were made after the tenant went into possession." Verdict for the plaintiff and judgment thereon. The defendant took this writ, assigning for error the charge of the Court as above. J. M. Moyer (with whom was R. P. Garsed), for the plaintiffs in error. The Greenwich Island Meadow Company is a quasi corporation, with powers limited by the object of its creation. Fourth School District v. Wood, 13 Mass. 192. Angel and Ames on Corp., sects. 25 and 30-41. The grant by the Legislature to this Company was not alone for the improvement of private property, but because, in the language of the Act, it is also of great benefit to the public." Cooley on Taxation, 124. To authorize the construction of levces and drains, and the reclamation of marsh lands, is an exercise of the police power of the State. Replevin, by Charles Maynes, who was tenant Sharpless v. Mayor of Philadelphia, 9 Harris, 147. under Elizabeth L. Devine, against William The assessment in question is not a lien upon Rutherford, Treasurer of the Greenwich Island! the land, but a personal charge upon the owner VOL. IX.-36 or possessor. The language of the supplement to the Act makes it a personal charge. The land could not be sold to pay the tax thus imposed. Sharp v. Speir, 4 Hill, 76. Burd v. Ramsey, 9 S. & R. 109. These assessments, being assessed by special grant of power by special legislation to a particular body, are not within the Act of 1854. They stand upon their own foundation, and independent of judicial decision, remain as when the Act was originally passed, not a lien upon the land but a personal charge. Kilgore v. Commonwealth, 9 WEEKLY NOTES, 185. If the Legislature had the authority to delegate to this company the right to lay assessments, it might also provide the means for their collection, whether by lien upon, and sale of the land, or by distress of the goods and chattels found upon the same. Potter's Dwarris on Statutes, 412. There is in the Bill of Rights no limitation upon the right of taxation. Sharpless v. Philadelphia, 9 Harris, 147. Geo. W. Thorn, for the defendant in error. This authority, even if rightfully conferred by the Act of 1760, is clearly in violation of the Bill of Rights, and has been repealed by the Constitution of 1790. It is not every Act which the Legislature may call a tax law that is constitutional. Sharpless v. City of Philadelphia, 9 Harris, 147. Local assessments can only be constitutional when imposed to pay for local improvements, clearly conferring benefits upon the properties assessed, and to the extent of those benefits. Hammett v. The City, 15 Smith, 155. Washington Av., 19 Smith, 352. There is nothing in the law to indicate that the owners of adjoining lands are under a common duty to drain their lands either by contract with each other, or by reason of a burden imposed by a common predecessor in an entire title under which all claim their several parts. Rutherford's Case, 22 Smith, 82. Some mode of determining the duty must be furnished. The process must be judicial in its nature. City v. Scott, 31 Smith, 80. City v. Field, 8 Id. 320.. A tax is a means of providing for a public burden. A tax law for the benefit of a private corporation, however meritorious, is of such very doubtful constitutionality that it will not be enforced by the Courts. Phila. Ass'n v. Wood, 3 Wright, 73. January 24, 1881. THE COURT. Greenwich Island, described in the preamble of the Act of 1760 as marsh, meadows and cripple land, partly drained and partly open to the overflowing of the tide, is the territory required by said Act to be embanked and drained for the common benefit of the owners. That it is divided into a number of farms, with several owners; that the lands would be almost, if not altogether unfit for cultivation without embankment and drainage, that the statute provides a just mode for making the general improvements and keeping up the same, and for levying the costs thereof as between the owners, are uncontroverted facts. After the lapse of one hundred and twenty years, during which time the land owners have enjoyed the benefits of the statute, it should not be declared void but for imperative reasons. Indeed, the Court below held it to be valid, and charged that if the assessments were made after the tenant went into possession, and the requisite notice had been given him, the jury could find for the defendant. But it was ruled that if the assessments were made before the tenant went into possession, he was not bound to pay them. When any considerable tract of land, owned by different persons, is in a condition precluding cultivation by reason of moisture and overflow, which embankments and drains would relieve, the public have such an interest in the improvement, and the consequent advancement of the general interest of the locality, as will justify the levy of assessments upon the owners for the purposes of such improvements. (Cooley on Taxation, 424, and cases cited in note.) No doubt general taxation is admissible for this purpose, values must accrue mainly to the owners of the but the special benefits from enhancements of lands and legislation which imposes the costs upon those who, without the improvements, would be the principal sufferers, is probably in most cases wiser and better. (Ibid. 427.) When there is no consideration other than the improve ment of land as property, the authority to levy such assessments is confined within limited bounds. In Pennsylvania, it can scarcely be measured by the necessities or laws of such States as Louisiana or California, there is but little land liable to overflow or swamp-land within her borders. As the facts are presented, we cannot say that the statute for improvement of Greenwich Island is without those limits of authority. mer. It widely differs from the Act of May 9, 1871, | manner is set forth in the 15th section. "It which was declared unconstitutional in Ruther- shall be the duty of the said collectors to levy ford's Case (22 P. F. S. 82), and has been the said tax by distress and sale of the goods and acquiesced in for several generations. Every chattels of said delinquent, giving ten days pubstatute which authorizes assessments upon the lic notice of such sale by written or printed adowners for improvement of their lands, ought to vertisement." Nothing else in that Act relates be strictly construed. If it admit of two con- to the manner of selling goods and chattels. structions, one consistent with the Bill of Rights, Section 25 provides that the goods and chattels the other repugnant, it should receive the for- of tenants occupying lands, shall be as liable to It is said that the statute makes the owners be distrained for taxes, arising out of such lands, of this island a quasi corporation. Be it so. as though such tenants were the real owners The managers have just the powers, and none thereof. This extends the liability to seizure to other, that are given expressly or by necessary the property of other people, but does not affect implication. They claim the right to seize the the manner of sale. The treasurer of the managoods of a tenant to satisfy an assessment laid gers of the Greenwich Island improvements is prior to his possession. They must show the not vested with all the powers of tax collectors grant or their claim is false. under the Act of 1879. In case goods of the owner or possessor cannot be found, he is not authorized to take the body of the delinquent to the county jail, as were collectors of county taxes, nor can he take the goods of a tenant who was not in possession when the assessment was laid. The Act of 1760 directed the managers to make a true list of the names of the owners or possessors, with the quantity of land held or possessed by each, with the sum per acre of the assessment for the current year; and in default of payment by any such person, judgment could be obtained against him, in satisfaction whereof his land should be levied and let for so long a time as the rents would pay the debt and costs. By the supplement of 1804, the managers shall ascertain the names of each owner or possessor of every acre of said island, and having estimated the expenses for the year, rate and assess each owner or possessor fairly and equally, his or her proportionable part, and give a list thereof, with their warrant, to the treasurer, who shall demand and receive from every person in such list, his or her legal representatives, the sum wherewith such person is charged. "And if any person shall neglect or refuse to make payment within thirty days from the time of such demand, it shall be the duty of said treasurer to levy, or cause to be levied, the said tax, and the costs attending such levy, by distress and sale of the goods and chattels, lands and tenements of the said delinquent, in such manner as is prescribed by the Act entitled 'An Act to raise and collect county rates and levies,' passed the eleventh day of April, Anno Domini, one thousand seven hundred and ninety-nine; such sum, if paid or recovered from a renter, to be deducted from his rent." In original and supplement, the assessments are required to be made on the owners or possessors. The possessor may be a renter, and if so, he may defalcate from the rent. Upon default, the property of the said delinquent may be seized. The delinquent is he who was assessed and neglected to pay for thirty days after demand. One whose name is not on the list, and neither owned nor possessed the land when the assessment was made, is not within the terms of the statute. The seizure and sale shall be in the manner prescribed by the Act of 1799, which It was said in Henry v. Horstick (9 Watts, 412), that the Act of Assembly will admit of a construction, which would authorize a distress of the goods of a party in possession of the land, though the tax was laid prior to his entering into possession; and that the Act in this respect being remedial, ought to be construed liberally in order to make the remedy provided by it effectual in all cases. This language was respecting the general laws for collection of taxes, and has no application to the construction of a private statute for local and special assessments. It is not the intendment of the Greenwich Island enabling Act, or of its supplement, that the managers may suffer the assessments to remain unpaid for an indefinite time, finally to be collected from a new tenant, or an innocent purchaser. If it were, this case is illustrative of the result. The arrears exceed the value of the annual rent, and the tenant might lose all the excess. Cases would likely arise far worse than this; for here only the amount laid for three years is asked of the tenant. It is no answer to refer to the assessment of public taxes laid by public officers, and the case of obtaining information in the proper offices in regard to all such taxes. Prompt collection of the assessments from the proper parties is required by the spirit of the Act, rather than a loose and unwarranted construction for the enlargement of the powers of the managers. Judgment affirmed. Opinion by TRUNKEY, J. GREEN, J., absent. July, '80, 1:8. Taney's Appeal. Jan. 12, 1881. | Safe Deposit Company was appointed guardian of the estate of the said minor. In May, 1880, Mary C. Rogers made a petition to the Orphans' Court of the county of Philadelphia to have the guardians appointed by said Court discharged, under the provisions of the Act of April 21, 1856 (Purd. Dig., p. 412). This Act provides as follows: While a minor was emigrating with his parents from Pennsylvania to Kansas, he was deprived of both his parents by a railway accident, in the State of Michigan, and was left in the place of the accident, himself seriously injured. His maternal aunt went from Pennsylvania to Michigan to take charge of him, and she, having declared her intention to remain in Michigan, was duly appointed, by the Probate Court in that State, guardian of the person and of the estate of the said minor. Guardians of the minor's person and of his estate were also appointed by the Orphans' Court in Pennsylvania, who, upon petition of the Michigan guardian, were subsequently discharged: Held (sustaining the decree of the Court below), that both the minor and his guardian appointed in Michigan were "non-residents" of Pennsylvania, within the purview of the Act of April 21, 1856 (P. L. 495). Appeal of Ellen Taney from a decree of the Orphans' Court of Philadelphia County, discharging her as guardian of the person, and The Fidelity Insurance, Trust, and Safe Deposit Company as guardian of the estate, of William J. Rice, a minor. The following material facts appeared in the petition and answer: The said minor, William J. Rice, was, at the time the petition was filed, in 1880, between three and four years of age; he was born in the city of Philadelphia, where he resided with his parents, who were citizens and residents of Philadelphia until the month of October, 1879. Upon the 10th day of that month, while the minor was travelling upon a railway train, in company with his parents, who had left Philadelphia and were upon their way to the State of Kansas, where it was their intention to remain, an accident happened upon the line of the Michigan Central Railway, at a place called Jackson, in the State of Michigan, by which his parents were instantly killed, and the said minor himself was seriously injured. In December, 1879, whilst the said minor was still detained in the city of Jackson by reason of his injuries, Mary C. Rogers, his maternal aunt, a resident of Philadelphia, went to Jackson, where, upon presentation of the facts of the case in a petition to the Probate Court of Jackson, and upon declaring her intention to remain in the State of Michigan, she was duly appointed by the said Court guardian of the person and of the estate of the said minor. In January, 1880, Ellen Taney, an aunt of the said minor, was, upon petition of Michael Rice, his uncle, duly appointed by the Orphans' Court of the county of Philadelphia, guardian of the person, and the Fidelity Insurance, Trust, and both be non-residents of this State, and such ward may "When such non-resident guardian shall produce an exemplification from under the seal of the office (if there be a seal) of the proper Court in the State of his residence, containing all the entries on record in relation to his ap pointment and giving bond, and authenticated, as required by the Act of Congress, as aforesaid, the Orphans' Court of the proper county in this State may cause suitable orders to be made discharging any resident guardian, executor or administrator, and authorizing the delivery and passing over of such property, and also requiring receipts to be passed and recorded, if deemed advisable," etc. It appeared that the minor's estate consists almost wholly of his claim against the railway company for damages for the loss of his parents and for the injury to himself. The Court below delivered no opinion, but entered the following decree: "And now, to wit, June 26, A. D. 1880, at an Orphans' Court held in and for the city and county of Philadelphia, it is ordered and decreed that the Fidelity Insurance, Trust, and Safe Deposit Company be discharged as guardian of the estate of William J. Rice, a minor; and further, that Ellen Taney be discharged as guardian of the person of the said William J. Rice." Whereupon Ellen Taney took this appeal, and assigned as error the decree of the Court, as above. Joseph C. Ferguson, for the appellant. The operation of the Act of April 21, 1856, is expressly limited to cases where both guardian and ward are non-residents of this State. The Act cannot be invoked in this case, because both were domiciled and lived in Philadelphia until October, 1879, when the minor was left in Michigan by the chances of a railway accident. There is no distinction between the terms residence and domicile, so far as they apply to this case. Cooper v. Galbraith, 3 W. C. C. R. 546. |