Borough of Knoxville vs. Pittsburgh Railways Company. Interest-License Fee-Street Railway-Verdict-Ordinance. A municipal ordinance imposed a tax of 50 cents on each trolley pole of a street railway payable on or before the first Minday of October each year, and in case of default, provided for the entering of a suit with costs. Nothing was said in the ordinance about interest thereon after default in payment of this license fee. In a suit to recover this license fee, plaintiff obtained a verdict, which included interest. On motion for a new trial on the ground that no interest could be collected. Held: That the action did not arise out of any contract, express or implied but was rather in the nature of a penalty. Even if it was a tax, no interest could be collected until after judgment. Verdict reduced by amount of interest allowed. In Re Motion for a New Trial. No. 290 April Term, 1914. C. P. Allegheny County. William D. Grimes for plaintiff. Reed, Smith, Shaw & Beal, for defendant. DAVIS, J., July 1, 1915.-The only point urged by counsel for the defendant on argument in this case before the court in banc was an error of the Court in instructing the jury that interest could be allowed upon the amount of the license fees claimed by the plaintiff under its ordinance. The ordinance of the plaintiff provided that the defendant should pay a license fee of fifty cents per annum for each and every pole within the municipality on or before the first Monday of October of each year, and in case of default that suit should be brought for recovery thereof with costs. The ordinance itself did not provide for the collection of interest thereon after default in payment of the license fees. The statute of Pennsylvania, section 1, of the Act of May 28, 1858, P. L. 622, provides that "the lawful rate of interest for the loan or use of money in all cases where no express contract shall have been made for a less rate shall be six per cent per annum.” The action of the plaintiff against the defendant for the collection of license fees does not arise out of any contract, expressed or implied. Its right to assess fees arises under it police power, and, while trictly speaking, it is not a tax for revenue purposes, it is, however, necesarily an assessment in the nature of a tax to cover the expenses incurred by the municipality in the costs and expenses of inspection of the defendant's poles. The rule seems to be well settled under the statutes in Pennsylvania in relation to the collection of taxes or penalties no interest can be collected until after judgment, unless the statute authorizing the levy or assessment of such tax or penalty provides for the collection of interest. Harrisburg vs. East Harrisburg Passenger Railway Co., 4 D. R., 683. We are, therefore, of the opinion that the verdict in this case should be reduced to the extent of the interest entering in the verdict, and the verdict now should be entered for the license fees only, to wit, the sum of One Hundred and Forty-five ($145.00) Dollars. ORDER new And now, to wit, July 1, 1915, it is ordered and directed that a trial be granted, unless the plaintiff files a remittitur reducing the verdict Borough of Knoxville vs. Pittsburgh Railways Company. (excluding the interest charge therein) to the sum of One Hundred and Fortyfive ($145.00) Dollars, and upon such remittitur, a new trial refused, judgment then to be entered upon payment of verdict against the defendant for said amount. Ackerman vs. Ackerman. Divorce Desertion-Failure to Supply Necessary Funds for Expenses. A divorce will be refused a husband on the ground of desertion, where the evidence shows that he left his wife, obtained a position in another state, then wrote to her, offering to provide a home for her if she and the children would come to him but failed to send her money for her necessary expenses; and where the evidence further showed that he had rented a house and lived with other women during this period. In Divorce. No. 1321 January Term, 1915. C. P. Allegheny County. George W. Brawner, Jr., for libellant. Charles A. Lewis, for respondent. James G. Nevin, Master. EVANS, J., September 13, 1915.-The facts in this case are not seriously in dispute. The libellant and the respondent were married in 1901 and lived together until June, 1912, when the libellant left the home and went to Gary, Ind., where he obtained work in a steel mill. Some time after going there the libellant wrote his wife, saying that he would provide a home for her and the children if she would come to Gary, Ind., but he sent her no money either to pay the indebtedness which she had contracted here or to pay the expenses of herself and children to Gary. He wrote several other letters asking her to come, but in all of these letters stating that he had no money to send her, that it took all of his money to pay his board. On September 12th, the respondent received a letter from an attorney in Indiana stating that Mr. Ackerman would like to have her return to him, but if not, would like to get a legal separation as provided by the laws of Indiana. The evidence showed that shortly after the libellant went to Indiana be rented a house there in which he lived, which was kept by a woman who in the testimony in this case is designated as Mrs. "X," and that in September, 1913, Mrs. "X" and the libellant lived at the home of a Miss Neidhart in Youngstown, O., as man and wife. The respondent testified that she heard shortly after her husband had left her that he was living with another woman in Gary, Ind. A very exhaustive examination of the testimony by the master in this case led him to the conclusion that the allegation of desertion had not been established, and an examination of the same testimony leads us to the same conclusion. And now, September 13th, 1915, decree in divorce in the above entitled case is refused. Wills-Legacies Metzgar's Estate. -General -Specific-Spendthrift Trust Interest. Where a testator bequeathed certain named stocks as a spendthrift trust for the benefit of a named legatee, and sells some of the stocks before his death, any doubt as to whether it was a specific or general legacy will be resolved in favor of a specific legacy by a reference in a later part of the will that all his stocks shall be sold of which he died possessed "not heretofore mentioned" and it will be declared to be a specific legacy. Where testator bequeathed one-half of the residue to a named legatee for life and the residue was made up of interest bearing securities, the legatee is entitled to interest from the death of the testator and not one year thereafter. Audit and Distribution. County. No. 152 January Term, 1915. O. C. Allegheny J. M. Stoner & Sons and Patterson, Crawford, Miller & Arensberg, for ac countant. John O. Wicks, for Commonwealth. TRIMBLE, J., May 5, 1915.-By the fourth clause of the decedent's Will, he created a spendthrift trust for his sister, to continue for and during the term of her natural life, and directed that the corpus of the trust should be distributed at the death of his sister, under the residuary clause. The disposition referred to is: "I give and bequeath to the Safe Deposit & Trust Company of Pittsburgh, in trust for the purposes hereinafter set forth, ninety (90) shares of the capital stock of the Central District and Printing Telegraph Company of Pittsburgh, one hundred (100) shares of the capital stock of the Pennsylvania Railroad Company fifty (50) shares of the capital stock of the American Telephone and Telegraph Company of Boston, Massachusetts, two hundred (200) shares of the preferred capital stock of the National Lead Company of New Jersey, and all bonds of which I may die possessed, in trust, nevertheless, to pay the income derived therefrom, semi-annually, to my sister Emma Martin, of Bellevue, Allegheny County, Pennsylvania, for and during the term of her natural life; and at the death of my said sister, Emma Martin, the corpus of the said trust shall pass under the residuary clause of this my last will and testament. The income derived therefrom shall not be liable for the debts of my said sister, Emma Martin, nor shall the same be subject to execution attachment, or any other legal process whatsoever, for the debts of my said sister Emma Martin." In the sixteenth clause he gives her a life estate in a piece of ground, with the right to erect a home for herself and children, which was not to be "subject to or liable for the debts, contracts, or engagements of herself or her husband." After her death the trustee named in the will, was directed to convey the said lot to his sister's children in fee. In the seventeenth clause he disposed of the residuum of his estate, and after so doing said, "After the death of my said sister Emma Martin, I direct The Safe Deposit & Trust Company of Pittsburgh, trustee, to divide that part of my estate which it holds as trustee among my six nieces and nephews," and direct that each of the nephews and nieces should have an equal share in all of his residuary estate. The eighteenth clause of the will is: "I do hereby authorize and empower my executor hereinafter named, whenever the same may be by it deemed expedient, to sell and dispose of my stock of which I may die possessed, not heretofore mentioned. The receipts from such sale or sales to be applied in the manner herein above directed." The testator in his lifetime disposed of the ninety shares of stock of the Central District & Printing Telegraph Company stock, which by the fourth clause of the will became a part of the corpus of the spendthrift trust Metzgar's Estate. created for his sister, and the question involved here is: Was this intended by the testator to be a specific or general legacy? The presumption of law is that a disposition of property by will is general and not specific, and to maintain that a legacy is specific, the testator's intention to pass some certain property distinguished from all other of the same class, to the object of his bounty must be found. If he intended that the trust for his sister was to be created in part by the ninety shares of the capital stock of the Central District & Printing Telegraph Company, which at the time of the execution of the will he owned, the legacy was specific, and is now adeemed, for he did not own it at the time of his death. But if he intended that a portion of the corpus of the trust should be composed of any ninety shares of said stock, even though he had owned that number of shares when he made his will, and did not own any at his death, the legacy is general: Snyder's Estate, 217 Pa., 71. What then was the intention? The will is unambiguous and no extraneous circumstances can affect it; Sponsler's Appeal, 107 Pa., 95. Of course the whole will must be considered, and if there is any indication in any part of it which earmarks certain shares as a composite part of the corpus, this must prevail, and ademption results. In the fourth clause there is sufficient expression of the intention of the testator that this legacy is specific, for there, his bequest is of various stocks. and all bonds of which he would die possessed. It would be an overnice interpretation of his language to make it import an intention to give the stocks as general legacies, by making his expression, "of which I may die possessed" refer to and be explanatory of only that part of the bequest which is unquestionably specific, that is, of all bonds of which he would die possessed. The clear intention from this language, without more, is that the corpus of this trust was to be composed of the indicated stocks, and all bonds of which he died possessed, and after the death of the cestui que trust, to pass it to the residuary estate. When we consider the trust created for the benefit of his sister in the fourth and sixteenth clauses of the will, followed by a disposition of the residue of his estate, one-half of which was vested in a third trust for his sister, it is improbable that he intended that the residue of his estate should be reduced by subtracting the value of the shares of the Central District & Printing Telegraph Company stock, which he had sold in his lifetime, and replacing this stock or its value in the trust for the other one-half of the residue bequeathed to his nieces ad nephews. If there is any doubt about the indicium which marks the bonds as specific, referring to the stock as well, it is resolved in favor of the legacy being specific by the eighteenth paragraph, wherein there is a direction to sell all stock which the testator owned at the time of his death, and which had not been mentioned in the will, at any time when the executor should deem it expedient. The testator owned the Central District & Printing Telegraph stock when he executed his will, and its exclusion from the power of sale shows that he intended it to be included as a specific part of the trust; Metcalf vs. Framington Parish, 128 Mass. Rep., 370. Another question which arises in this case, is whether one-half of the residue bequeathed by the testator to his sister for life, bears interest from the date of his death, or from one year thereafter. In Spangler's Estate, 9 W. & S., 135, there was a bequest of certain stocks and bonds, in trust for the testator's wife, who was to receive the income therefrom, and Mr. Chief Justice Gibson said, in ruling the question in favor of the payment of interest from the date of death, "But where the corpus of a legacy is interest accruing on the residue, after payment of debts, and not the residue itself, it is well settled that unless a contrary intent is collectible from the tenor of the will, the legatee is entitled to all that is Metzgar's Estate. made from the death of the testator, for the palpable reason that less would otherwise be got than was given. * * * Here the corpus of the bequest is interest itself; and how much of the widow's third made interest from the death, or any later period, does not appear. Part of it, consisting of her proportion of the stocks, bonds, notes, judgments, mortgages and simple contract debts, must have been immediately productive, and so far she was certainly entitled, but for all besides she is entitled from the time when interest was, or ought to have been made." The facts in the case at bar makes it similar to the last cited case, and consequently the sister of the testator is entitled to interest on one-half of the residue of his estate from the date of his death. Let distribution be made showing ademption of the ninety shares of the Central District & Printing Telegraph Company stock, and the income which has accrued on one-half of the residuary estate from the date of his death. In an action to recover on a beneficial insurance policy, defendant contended that the insured had given false answer to the following questions: (1) Whether he was then in good health or ever had consumption; (2) Whether any of his family or near relatives had had consumption; (3) Whether he ever had any personal injury or accident or undergone any surgical operation; (4) Whether he was then or ever used intoxicating liquors daily or habitually; (5) Whether he had had medical advice during the last five years. Verdict for plaintiff and on motion for judgment n. o. v. Held: That the evidence on all these questions had been fully submitted to the jury it was for them to pass upon and their verdict would not be disturbed. Sur motion by defendant for judgment non obstante veredicto. No. 2242 October Term, 1912. C. P. Allegheny County. T. M. & R. P. Marshall, A. C. Stein, A. C. Teplitz and Edmund K. Trent, for plaintiff. Langfitt & McIntosh and Thos. F. Garrahan, for defendant. a HAYMAKER, J., September 10, 1915. This case and that of the same plaintiff against the Royal Neighbors of America, No. 2840 October Term, 1912, were tried together, verdicts were rendered for the plaintiff, and in each motion was made for judgment N. O. V. While the cases are somewhat similar and the defense in each is 'more or less applicable to the other, we cannot well dispose of both in one opinion without confusing questions applicable only to one or the other. The defendant is a fraternal beneficiary association, incorporated under the laws of Ohio, working under the lodge system, and authorized to do business in the State of Pennsylvania. The only question involved is whether the insured, in his application for membership made certain false statements that worked a forfeiture of his benefit certificate. The constitution and laws of the association provide that: "No certificate shall be delivered or put in force unless it is delivered while the applicant is in good health. **;" that "No claim resulting from disease or disability existing prior to date of certificate shall be valid against the society;" that "No benefit or indemnity shall be paid at any * of a member time on account of the death who has misstated or concealed facts material to the true knowledge of his physical condition or family history in the application for beneficial membership." * * * * * * * * * |