Specht's Estate. Wills Life Estate-Power to Consume -Devise of Unused Property. Where testator devised his estate to his wife for life with power to consume so much of the principal as she may deem necessary and proper at her discretion," and directed how the unused property should be distributed after her death, naming an executor for the unused balance of the estate, this power to consume means an honest exercise of the power, and the life tenant will not be permitted to give to others the unconsumed property devised over by the original testator. Sur adjudication. No. 419 September Term, 1915. O. C. Allegheny County. Hermann L. Hegner, for accountant. John O. Wicks, for Commonwealth. MILLER, J., October 15, 1915. The question is whether the balance in the account belonged to decedent's estate, or whether it is a residuary balance of the estate of her husband, who devised his estate to the decedent, his wife, for life with the power of consumption, devising the remainder over, not consumed. Anton Specht, the husband of the decedent, died testate January 14, 1910; his will, inter alia, provides in the fourth paragraph as follows: "I give to Catherine Specht (his wife) all my estate, real and personal, whatsoever, for and during her natural life, with power to consume so much of the principal as she may deem necessary and proper at her discretion, without interference from anyone and without liability to account to anyone whatsoever, and she shall not be bound to give any security as life tenant." by the sixth paragraph he provided that after the death of his wife certain legacies amounting to $2,400 should be paid. By the eighth paragraph he devised the balance of his estate, real, personal and mixed, one-half to the children of his sister Rosina Glock, and the other one-half to the children of his wife's sister Flora Gartner. His wife was named executrix with a proviso that upon her death his nephew, Charles J. Glock, be named as her successor. The executrix, Mrs. Specht, this decedent, filed no account; she died December 12, 1913, testate; at No. 123 December Term, 1914, the other executor filed an account of Anton Specht's estate, wherein he made note of the fund now in controversy, but not in his possession; out of the balance then remaining in said account the decree shows the payment of the legacies devised, and what was left apportioned among the residuary legatees in his will. Mrs Specht by her will provided for certain legacies, small in amount, and bequeathed the balance to Peter J. Rosswog, whom she appointed executor. He accounts for $1,400 with some interest thereon; this amount is the balance of $3,000 deposited by Mrs. Specht on December 31, 1911, with a church or parochial order connected with her church; this deposit was part of the payment to her on December 18, 1911, as executrix of a mortgage given to her husband in his lifetime; the amount of this mortgage payment was $6,700 in cash; this amount she deposited in her individual name in the Metropolitan Trust Company of this city on December 18, 1911, the same day she received it; out of the amount so deposited she drew her check for $3,000 on December 21, 1911, payable to the Carmelite Fathers of Pennsylvania, which is the parochial depositary above mentioned. The only evidence offered to meet the foregoing record facts tends to show that Mrs. Specht was the beneficiary in an insurance or benefit policy of $1,000 payable to her after the death of her husband, which sum Specht's Estate. she seems to have deposited, if not donated in whole or in part, in December, 1910, to the Redemptorist Fathers of the State of Pennsylvania; testimony was further offered tending to show that in the lifetime of her husband they had kept boarders and that she had maintained refreshment stands on the streets in the City of Washington, D. C., at presidential inaugurations. The character of this testimony is altogether vague and indefinite; no amounts are given. The weight of the testimony establishes without question the fact that the decedent had no independent estate of her own and that the fund now accounted for is an unused balance of her husband's estate. The language of Anton Specht's will gave his wife the income of all of his estate for life with power to consumer so much of the principal as she may deem necessary and proper at her discretion; and it has manifestly devised any balance of his estate over to his named beneficiaries. The estate in her by the terms of his will was absolute to the extent that she saw fit to consume or use it: Nieman's Estate, 131 Pa., 346; but this means an honest exercise of the power; the legatee or life tenant will not be permitted by will to give to others the unconsumed property devised over by the original testator: Tyson's Estate, 191 Pa., 218. Here, as in Trout vs. Robinger, 198 Pa., 81, and Gross vs. Strominger, 178 Pa., 64, what she used was hers absolutely, but the remainder belongs to the husband's estate, and must be awarded to his executor. Mothers' Pensions In re Mothers' Pensions. Husbands-Disabled-Abandonment-Illegal Claims Acts of 1913 and 1915. The Attorney General cannot lawfully continue payments under the Act of April 28, 1913, P. L. 118, as amended by the Act of June 18, 1915, P. L. 1038, to indigent mothers whose husbands are disabled, or have abandoned them, or to unfortunates who are mothers without lawful husbands. All such applications should be stricken from the list. OFFICE OF THE ATTORNEY GENERAL. Hon. A. W. Powell, Harrisburg, Pa., August 10, 1915. Auditor General, Sir: Replying to your inquiry of recent date, relative to the Act of June 18, 1915, P. L. 1038, which is an amendment to the Act of April 29, 1913, P. L. 118, commonly referred to as the "Mothers' Pension Act," I beg to advise you as follows: The Act of 1913 provides that the beneficiaries thereunder shall be "indigent, widowed or abandoned mothers, for partial support of their children in their own homes." The amending Act of 1915 provides that the beneficiaries thereunder shall be "women who have children under sixteen years of age, and whose husbands are dead or permanently confined in institutions for the insane, when such women are of good repute, but poor and dependent on their own efforts for support, as aid in supporting their children in their own homes." You ask to be advised: First. Whether you may lawfully continue payments to indigent mothers whose husbands are disabled, to indigent mothers whose husbands have aban In re Mothers' Pensions. doned them, or to unfortunates who are mothers without any lawful husband, if they were on the pension roll prior to the adoption of the Act of 1915. Second. Whether or not you are authorized to strike off from recommendations made by Boards of Trustees for new pensions since the adoption of the said Act, those who come within the classes cited in the first inquiry. The real purpose of this legislation was undoubtedly to alleviate the condition of want and dependence of families which have permanently lost the usual and natural support furnished by the father and husband. It is rather difficult, therefore, to understand how the situation is affected by the cause of the condition. A real case of abandonment by a father, for instance, has the same affect, so far as the ability of the mother to support her children is concerned, as the death of the father. And what if a husband is permanently confined in some other institution, than an insane asylum? It must be assumed, however, that there were good and sufficient reasons for making the limitation in the Act of 1915, and it is, of course, our duty to interpret legislative acts in accordance with the intention as expressed therein,in this case clearly expressed-and it is your duty to administer the law as so passed and interpreted. If there could be any possible doubt as to the intention and purpose of the Legislature, it is removed by the title of the Act of 1915, which declares that it is an Act amending the Act of 1913, "by limiting the provisions of said Act to women whose husbands are dead or permanently insane, and who have children under sixteen years of age, etc." You are therefore advised: First. That you may not lawfully continue payments to indigent mothers whose husbands are disabled, to indigent mothers whose husbands have abandoned them, or to unfortunates who are mothers without any lawful husband, notwithstanding they were on the pension roll prior to the adoption of the Act of 1915. Second. You are authorized, and it is your duty, to strike off from recommendations made by Boards of Trustees for new pensions, since the adoption of the Act of 1915, all those who come withont the classes mentioned in your first inquiry. In other words, the provisions of the Act of June 18, 1915, P. L. 1038, are limited in terms to "women who have children under sixteen years of age, and whose husbands are dead or permanently confined in institutions for the insane, when such women are of good repute, but poor and dependent on their own efforts for support, as aid in supporting their children in their own homes," and others may not lawfully be designated as beneficiaries thereunder. Very truly yours, JOSEPH L. KUN, Deputy Attorney General. Turner vs. Turner et al. Fartition Wife's Money-Resulting Trust-Evidence. In a bill for partition of real estate it appeared that two properties, purchased by a wife's money, were sold on July 31st, 1902, and during the following months three lots were purchased by the husband. After his death, leaving a widow and five children, this bill was filed to partition these three lots. One of the contentions was that as the wife's money had paid for this realty, the Court should declare a resulting trust. The evidence showed that the property of which the husband died seized had been paid for during a period of several years and in small installments. Held: That the evidence as to a resulting trust was too indefinite and uncertain. That as the property stood in the name of the husband at the time of his death, partition ordered. In Equity for Partition of Real Estate. No. 890 July Term, 1912. C. P. Allegheny County. J. H. Wise, for plaintiff. McKee, Mitchell & Alter, for defendants. HAYMAKER, J., May 11, 1915.-This is a bill in equity for the partition of real estate. FINDINGS OF FACT. First. Charles Turner died intestate on January 7th, 1911, seized and in possession of the property described in the bill, and left to survive him as his only heirs at law, a widow, Ellen Turner and seven children, viz: William Turner, the plaintiff, and Charles D. Turner, Frank Turner, Martha Turner, Edward Turner, Archy Turner and John Turner, defendants, all of whom are of full age. Second. That the lands described in the bill were conveyed to the said Charles Turner by three deeds. The first described piece by deed of C. Leet Winters et al., by deed of August 2nd, 1902, duly recorded in Deed Book Vol. 1207, page 192. The second described piece by deed of Erasmus H. Beall by deed of August 8th, 1902, and recorded in Deed Book Vol. 1228, page 241. And the third piece by deed of Howard E. Beall and wife, by deed of October 23rd, 1902, and recorded in Deed Book Vol. 1246, page 282. Third. No conveyance appears to have been made of any real estate in Allegheny City to Ellen Turner, or by her conveyed to any other person. Fourth. The several pieces of real estate which were conveyed by John Drew and wife to Ellen Turner were not purchased from the separate estate of Ellen Turner, but were purchased by Charles Turner and by him paid for. Fifth. Charles Turner, with his wife and children, remainded in continous possession of the property described in the bill to the time of his death. Sixth. The properties mentioned in the bill were purchased in the name of Charles Turner from the proceeds of the sale of the lots purchased from John Drhew and wife in the name of Ellen Turner, one of the defendants, by two deeds one dated July 3rd, 1899, and recorded in Deed Book Vol. 1025, page 546, and the other dated July 31st, 1902, and recorded in Deed Book Vol. 1207, page 126. Seventh. There was no agreement or understanding between Charles Turner and Ellen Turner, his wife, when the properties described in the bill were purchased in the name of Charles Turner, that the legal title thereto was to have been taken in the name of Ellen Turner. Eighth. The defendants have entered upon the record a waiver of objection to the jurisdiction of a Court of Equity in this case. Turner vs. Turner et al. LEGAL CONCLUSIONS. First. That at the time of his death Charles Turner was the owner in fee simple of the properties described in the bill. Second. Subject to the widow's dower, William D. Turner, the plaintiff, Charles D. Turner, Frank Turner, Martha Turner, Edward Turner, Archy Turner and John Turner, the defendants, being the children and heirs of Charles Turner, deceased, are each the owner of the undivided oneseventh of the properties described in the bill. Third. The said properties should be partitioned among the plaintiff and defendants. Fourth. The lots sold by Drhew and wife to Ellen Turner not having been purchased with the money of Ellen Turner, the investing of the proceeds of the sale thereof in the properties described in the bill would not create a resulting trust in Ellen Turner as to the latter property. Fifth. The presumption that the purchase of the Drhew properties was a gift to the wife from the husband, he having paid the purchase money, would not be any stronger than the presumption of a gift from the wife to the husband of the properties described in the bill. Sixth. The legal title to the lots described in the bill being in the deceased, Charles Turner, the presumption is that the title conforms to the deed and can be overcome only by clear and satisfactory evidence, which did not appear in this case. Seventh. On proper application an order should be made for the appointment of a Master and two Commissioners to make partition as prayed for in the bill. DISCUSSION. Bill in Equity for a partition of three pieces of real estate in the Borough of Sewickley. Ellen Turner, one of the defendants, is the widow of Charles Turner, deceased, and the plaintiff and the other defendants are his heirs-at-law. The bill alleges, inter alia, that Charles Turner the deceased, died on January 7th, 1911, intestate, married and seized in fee simple of the real estate described in the bill. The answer admits that the legal title to the lots described in the bill was in Charles Turner at the time of his death, but alleges that the properties were purchased with the money of his wife, Ellen Turner, and the deeds made to the husband contrary to her instructions, and without her knowledge and that of the other defendants. The defendants contend that the evidence creates a resulting trust in favor of the wife, or widow. At the time of his death the decedent, with his wife and children (excepting the plaintiff) was in possession of the property mentioned in the bill. The defendants' contention that the widow is now the beneficiary owner of the lots in question had its inception in the claim that many years ago the wife received money from her father, in the South, and with it she purchased property in Allegheny City (now Pittsburgh) which she later sold. The defendants now claim that she invested the proceeds thereof in two lots of ground purchased of John Drhew and wife by deeds dated respectively July 3rd, 1899 and July 31st, 1902,, in her name. Drhew lots were sold by her and her husband to W. D. George, by deed of July 31st, 1902. With the proceed of the sale to George the three properties described in the bill were purchased in the name of her husband, Charles Turner, now deceased. The The defendants contend that we should declare a resulting trust in favor of the wife, in the property sought to be partitioned, on the ground |