Furman Sheppard (W. Henry Smith with him), for the rules. C. P. No. 3. December 27, 1884. Seitzinger v. New Era Life Association. The Court will so control its execution as to Assessment company for mutual benefit-Gen- prevent injustice, by inquiring into the amount eral judgment for amount due upon the death of to which the plaintiff is entitled, without regard a member-Restraining execution, in the first to the judgment, and by confining its operation to instance, to amount collected from assessments. specified property, when that is necessary to effecTwo rules, granted on defendant's petition, tuate the purposes of the contract. viz: (1) Rule to stay execution; (2) Rule to restrain the operation of verdict, judgment, and execution, and to show cause why the prayer of the petition (infra) should not be granted. Sparks v. Garrigues, 1 Binn. 152. Act of May 1, 1876 P. L. 53, Purd. Dig. 2017. It does not change the character of the liability. The charter does not require the company to have assets, but simply to make assessments. If there is any laches, the Court has power, by the appointment of an auditor or receiver, to take care of the matter. The company defendant, incorporated under the Act of May 1, 1876 (P. L. 53), is an assessment company for mutual benefit with no guarantee or pledge of its capital stock. Defendants Whipple v. Fire Ass'n, 3 WEEKLY NOTES, 259. issued a certificate of membership to one Roland, This is a proper case to exercise the plenary covenanting sixty days after reasonable and satis-power of the Court. The plaintiff is restricted factory proof of death to pay Seitzinger, the to a particular fund by the terms of the contract, plaintiff, "the sum of five dollars for every one and by statute. thousand maximum sum of benefit actually in force in this association upon the decease of the said Irwin Roland, and upon which the mortuary assessments are paid." The certificate of membership had printed across its face "This company is not required by law to maintain the reserve which other life insurance companies are required (to maintain) by the Act entitled 'An Act to establish an Insurance department,' approved April 4, 1873." Roland died November 17, 1880, and proofs of death were furnished. The company having called for additional proofs and refused payment, this suit was brought, and after verdict judgment was entered against the company for $5883. April 18, 1884, a fi. fa. was issued. Scovill v. Thayer, 105 U. S. 143. Ward v. Griswoldville Co., 16 Conn. 593. When the funds are not tangible, but consist in the liability of the members to be assessed, the plaintiffs are entiled to be subrogated to the duty of the company to enforce its claim as to its members. Germantown Pass. R. Co. v. Filter, 10 Sm. 131. The defendant then took a rule to stay proceedings for the payment of assessments by the members, and subsequently, December 6, 1884, filed a petition reciting the facts and praying as The laches in this case on the part of the defollows: "The defendants accordingly respect- fendants in not collecting assessments has been fully submit that they are not in law liable for such, that, as the judgment has been recovered the payment of the amount of the said plaintiff's against them for the full amount, we have a right insurable interest in the life of the said Roland, to collect it in any way. They have broken or the amount of the said verdict and judgment, their contract, and the judgment entered is a otherwise than from and out of the proceeds of general one for an absolute amount. New Era assessments levied upon and received from the Life Ass'n v. Leidig, error from York Co., demembers of said company as aforesaid; and they cided by S. C., October 1, 1883 (not reported), therefore, in consideration of the premises, re- was a suit upon a similar certificate of memberspectfully pray this Honorable Court, by an ap-ship. The association filed special pleas setting propriate and a suitable order made in this behalf, up the facts that under the terms of the contract as to the said Court shall seem meet, to limit and the member's remedy was limited to assessments restrict the operation and effect of said verdict to be made by the association. The Court beand judgment, and the execution of the writ of ow struck off the pleas. The association then fieri facias issued thereon to such moneys as may asked the Court to charge the jury that the inhave been or may hereafter be collected and re-sured could not recover because payment was to ceived by the defendants from the members of said association under and by virtue of the asessment made upon said members by the said defendants as aforesaid." be made out of assessments, as it was in evidence that no assessments had been made or collected. The Court declined to so charge, and the Supreme Court affirmed the judgment. Wistar v. The City, 5 WEEKLY NOTES, 279. Hare v. Comm., 8 Id. 121. Fell v. The City, 3 Id. 261. The proceedings being irregular, void, and defective, the writ should be quashed. The question here is, whether there is any Act of March 23, 1866. The directions of the right to restrict the execution. The plaintiff Act must be strictly complied with. charged the company with default in not making assessments. There is nothing to show that they have made assessments except the plaintiff's petition, which is not supported by depositions. The Court, after entering a general judgment, has no right to restrict it. When I find no property I have the right to have the writ returned nulla bona, and then I can come into Court and ask for a receiver. The company would be enabled to delay this return if the execution is to be only against the assessments. The assessments should be collected by a receiver under the control of this Court; the company may refuse to sue. THE COURT. As it appears by the policy of insurance that the claims shall be paid out of the assessments, we will, for the present, restrain the plaintiff's execution to this extent. If at any time hereafter it is shown that an attempt is made to overreach the plaintiff, or to use this as a means of delay, we will see that a remedy is found to meet that state of facts. We will therefore discharge the rule to stay execution, and make the second rule, to restrain the operation of the judgment and execution to the assessments, absolute. Oral opinion by LUDLOW, P. J. C. P. No. 4. H. S. P. Crawford v. Stewart, 2 Wr. 34. Miles v. Pleasants, 9 WEEKLY NOTES, 63. City v. Flanigan, 3 Phila. 458. The irregularity must be taken advantage of by demurrer or motion to quash, otherwise it might be considered as waived by appearance or pleading. Lybrandt v. Eberly, 12 Casey, 348. City v. Olive Cemetery Co., 6 WEEKLY NOTES, 238. Large v. Transportation Co., 2 Ashmead, 402. Under the Act of April 19, 1843, we cannot show want of notice or make any defence, except to deny that the work was done, or that the price charged is greater than the value of the work, or that it has been paid or released. [ARNOLD, J. You can prove that the property is rural, and that the municipal authorities exceeded their authority in making the improvement. (Kensington v. Keith, 2 Barr, 218; Fell v. Phila., 31 P. F. S. 58.)] E. Spencer Miller, Assistant City Solicitor, contra. The Act of 1866 is directory only, and an omission to comply with it does not destroy the December 13, 1884. right to recover. The defendant may be allowed a remission of the costs incurred, if payment be made within the ten days. Many claims may be lost if sci. fas. be quashed under these circumstances. The writ should be allowed stand as a sci. fa. to revive the lien. City v. Hanbest. Municipal claim-Act of March 23, 1866-Preliminary notice to the owner to pay before issuing sci. fa. is indispensable, and a writ issued before such notice is given, will be quashed-The writ will not be allowed to stand as a sci. fa. to revive the lien independ ent of the proceeding to levy the debt-Besides the defences allowed by the Act of April 19, 1843, the defendant may show that the work was done without authority. Rule to quash writ of scire facias. to Ketchum v. Singerly, 12 Phila. 189. City v. Coulston, 8 WEEKLY NOTES, 568. December 20, 1884. THE COURT. The Act of March 23, 1866, § 1, provides in lieu of adIvertisement, before suit brought, of municipal claims, that before any scire facias shall be issued A claim for curbing in front of defendant's on any such claim, it shall be the duty of the City property was filed November 7, 1879, and a sci. Solicitor to cause diligent search to be made for fa. thereon was issued November 7, 1884, re- the owner of the real estate against which the turnable first Monday of December, 1884. On claim may be filed, and serve him or her with a November 29, 1884, an affidavit of service of written or printed notice to pay the claim within notice to pay the claim within ten days was filed, ten days. The subsequent parts of the statute which affidavit showed that the notice was served reiterate the above requirement with such freon November 8, 1884, whereupon this rule was quency as to leave no doubt as to the emphatic taken, no appearance having been entered for force of the command. Thus, in section second, the defendant. it is enacted that if the claims are not paid within said time, they shall be sued out, but before any judgment by default shall be entered, the Court shall be satisfied by an affidavit to be filed of George Peirce for the rule. The notice to pay was not served ten days before the sci. fa. was issued, as required by the facias to revive and continue the lien, applies only to writs which are properly issued on claims properly filed. It cures no irregularities, nor does it provide a new writ, but it authorizes the entry of a judgment of revival, pending the determination of the issues raised in the suit, so as to save the claim from being lost by reason of the litigation consuming more than five years. (Collins v. Schoch, 14 W. N. 485.) The cases cited by the plaintiff cannot be reconciled with The City v. Scott, and we must depart from them and follow the ruling of the Supreme Court on this subject. record, that if the owner has a residence in the city, he has been served before suit brought, with a notice of the claim personally, or by leaving it at his residence with an adult member of his family, ten days before issuing the writ of scire facias; or, if the owner resides out of the city, that at least fifteen days before suit was brought notice of the claim was mailed to said owner; or, if the name and address of the owner could not be ascertained, then it shall appear by such affidavit that before suit was brought, the additional efforts were made to find the owner, which are required by the Act. These provisions of the Act are not directory merely; they are As a valid judgment can never be entered on indispensable, and the omission to comply with the claim in this case, in view of the defects apthem is fatal to the claim. Five full years are parent in the record, or if entered, a sale made allowed by law, in which the scire facias may be under it would be void (Simons v. Kern, 92 Pa. issued. The duty to search for the owner and S. R. 455), we ought not to permit further exgive him notice to pay the claim before com- penses to be incurred and a useless trial had; but mencing suit, does not shorten the time allowed we should dispose of the matter in limine by for issuing the scire facias, nor does it impose quashing a writ which was issued in violation of any hardship on the claimant, while it is highly the statute, as was done in City v. Ward (14 beneficial in its effect on both parties. The WEEKLY NOTES, 174). spirit of the Act contemplates an early search for the owner, so that he may save costs and interest, while the claimant may obtain a prompt settlement, and if a dispute arises, it may be tried or settled while the matter is fresh. Kindred legislation and decisions thereunder show that every essential requirement of the statutes should be observed, and that the failure to comply with any of them will prevent a recovery. Thus in those cases in which the sci. fa. must be published for two weeks before the return day, if it appears that there was not enough time to make the publication between the teste and return of the writ, it has been held that the sheriff's return was radically defective, the service was Scire facias sur mortgage given by George D. insufficient, and the judgment thereon was re- Napheys and wife upon the wife's realty. The versed. (O'Byrne v. The City, 93 Pa. S. R. mortgage contained an agreement to pay an 225.) So where the statute required thirty days attorney-fee of two per cent. for collection. notice to pay, before filing the claim, it was held Mrs. Napheys filed an affidavit of defence which that a claim filed without such notice was void, stated that the mortgage was given to secure an and that a subsequent compliance with the stat-indebtedness of her husband, that she was willute was of no effect. (Gans v. The City, 102 Pa. S. R. 97.) We are urged to allow the sci. fa. in this case to stand as a sci. fa. to revive and continue the lien of the claim, independent of the right to levy it by execution. The only writ which can be issued is a sci. fa. to show cause why the claim should not be levied, upon which the judgment must be for the recovery of the debt, and not of revival of the lien merely. (City v. Scott, 93 P. S. R. 25.) The effect of issuing the sci. fa. is to revive the lien pending the proceedings to recover the debt; but if the sci. fa. be improperly issued, and it should be quashed, the lien necessarily dies with the writ. The Act of June 27, 1883, which gives the writ of scire facias upon a municipal claim the additional effect of a scire Rule absolute. W. H. W. December 27, 1884. C. P. No. 4. davit of defence. ing to pay the principal thereof, but that she had been advised that she was not liable for the attorney's fee, as part of the expenses of collection. Chas. F. Hinkle showed cause. A wife may bind her estate to pay her husband's debt, but cannot bind it to pay the expenses of collection. Magaw v. Stevenson, I Grant, 402. E. Y. Johnston, for the rule. It has been held that the attorney-fee is part of the debt. Faulkner v. Wilson, 3 WEEKLY NOTES, 339. In Magaw v. Stevenson, the bond did not contain the commission clause, and was therefore no part of the debt of the husband, besides in that case the amount of the commission was neither liquidated nor fixed. THE COURT. Rule absolute. H. B. Orphans' Court. November 18, 1884. Soley's Estate. Decedent's estate-Trust-An order by the cestui que trust, in favor of a third person, on the trustee to pay income not yet fully due, operates immediately as an equitable assignment of the fund pro tanto, although the trustee has no notice of it until after being served as garnishee with an attachment sur judgment which issued after the date of the order. Sur exceptions to adjudication. The following are the facts as they appeared before the Auditing Judge (PENROSE, J.). The Northern Savings Fund, Safe Deposit, and Trust Company was substituted trustee of a fund directed by the will of John Soley, the decedent, to be held, and the income paid to his son John for life. The said trustee filed an account, showing a balance in its hands of income from said fund, which was claimed first by A. M. Winkler under an order as follows: fund upon which it is drawn may be wholly in expectancy; whilst here the writing clearly disclosed a valuable consideration, and there was in hand a sum for its partial payment. (R. R. Co. v. Woelpper, 14 P. F. S. 366; Lumber Co. v. Marsh, 10 Nor. 96; Ruple v. Bindley, Id. 296.) Immediately upon its delivery the assignment passed the right to the fund to the assignee; and notice to the drawee was not essential to the completion of the title. (Nesmith v. Drum, 8 W. & S. 9; Caldwell v. Hartupee, 20 P. F. S. 74; Ruple v. Bindley, supra, 299.) This determines the case against the attaching creditor. He could set up no higher equity than was in his debtor when the attachment issued; and he could not, therefore, object that at the time the drawee had not yet formally accepted the draft. (Patten v. Wilson, 10 Cas. 299.) The exceptions are dismissed. W. L. S. November 20, 1884. Linder's Estate. Letters of administration-To whom granted— When a decedent has been dead for upwards of twenty-one years, the Orphans' Court alone has power to direct the issuing of letters of administration, but the choice of the administrator is to be made by the Register of WillsAct of March 15, 1832, § 17. Sur petition for order on Register to grant let ment for $524 against Soley, on which an attach-ters of administration. ment was issued and served on the Trust Com- The decedent died about 1856, intestate, and pany as garnishee April 4, 1882. This judgment | his grandson, being his next of kin in Pennsyland attachment afterwards passed by assignment | vania, petitioned the Court for an order on the to Doyle who also claimed the fund. The fund was awarded by the Auditing Judge to Winkler on account of his order, which was held to be an equitable assignment pro tanto, notwithstanding it was not brought to the notice of the trustee till some time after the attachment execution on the Gegenheim judgment was served on the trustee as garnishee. Register of Wills to grant to him letters of administration upon this estate. Henry C. Boyer, Esq., in his answer, set forth that he represented nearer heirs, who resided in Germany, and who had executed a letter of attorney to him to act for them, and had renounced their right to letters of administration, at the same time requesting the Register to grant the same to the respond To this finding exceptions were filed on behalf ent. He further stated that he had, as their of Doyle. attorney, received from a bankrupt estate, by order of the U. S. District Court, the fund upon which petitioner claimed the right of administration; and that during his lifetime decedent had made advancements to the father of the petitioner, in consideration of which after decedent's death he had executed a release to his brother, of all his interest in his father's estate. John P. Gloninger and George W. Thorn, for petitioner. It would seem clear that the petitioner, as his father is dead, is entitled to a distributive share of the estate, and consequently so interested in it as to have the right of administration. Purdon's Digest, 410, pl. 27. The fund is in the hands of the respondent irregularly, and he alone objects to the granting of letters of administration; it would seem as if he were the litigant, to whom letters are not to be granted. By reference to the answer, it appears that the respondent alleges upon information and belief, that the father of the petitioner released his claims upon the estate, so that it remains to be proved. Even if that were so, the right of the petitioner claiming through his grandmother would be sufficient to give him a claim to let ters. The question of the discretion of the Register has been considered and decided in Williams's Appeal, 7 Barr, 259. McClellan's Appeal, 4 Harris, 110. Colvin's Estate, 25 Pitts. L. J. 101. Henry C. Boyer, contra. Letters of administration cannot be granted to the petitioner, because he has not sufficient interest in the estate, and because the majority of the heirs abroad, who are in a nearer degree of kinship to the decedent, and whose interest in the fund is three times greater than that represented by the petitioner, have nominated another. The petitioner has the residence qualification, but his title is in abeyance. The prima facie right of priority of administration can be controlled by evidence of incompetency or unfitness from any cause, of which the Register is to be the judge. Hassinger's Appeal, 10 Barr, 454. section expressly prohibits the granting of letters of administration " upon the estate of any decedent, after the expiration of twenty-one years from the day of his decease, except on the order of the Register's Court, upon due cause shown." It will be observed, no authority is conferred upon the Register's Court to grant the letters; nor is the original jurisdiction of the Register in the least degree interfered with. But he is not to issue the letters, except upon order of the Court, due cause having been shown. By that is intended, it must appear, that the decedent has been dead more than twenty-one years, that there is no executor or administrator of his estate, and assets of his estate still remain uncollected and unadministered. When these facts sufficiently appear, then the Orphans' Court, since the adoption of the Constitution of 1874, will authorize and direct the Register to grant letters of administration. But the question who is the person entitled to administer the estate is still to be determined in the first instance by the Register. This appears from the succeeding section of the Act, the twenty-second, which says: "Whenever letters of administration are by law necessary, the Register having jurisdiction shall grant them in such form as the case shall require, to the widow, if any, of the decedent," etc. fer upon and secure to the Register original may be said, the purpose of the Act is to conjurisdiction in the probate of wills, and granting jurisdiction in the probate of wills, and granting letters of administration. In these respects he is a judicial officer, and his acts cannot be impeached in a collateral issue. (Morris v. Vanderen, 1 Dall. 66; Holliday v. Ward, 7 Harris, 485.) it And The decree of a Register, granting letters tes An eldest son or any person litigant with the tamentary, is conclusive, until reversed on apestate is not entitled. Bieber's Appeal, 1 Jones, 157. Ellmaker's Estate, 4 Watts, 34. Heron's Estate, 6 Phila. 87. November 29, 1884. THE COURT. Two petitions have been presented for an order upon the Register to grant letters of administration upon the estate of decedent to the petitioners respectively. But a careful examination of the Act of March 15, 1832 (Purdon, 408, pl. 17, Id. 410 pl. 27), will show they were prepared under a misapprehension of the meaning of the Act. After providing that letters testamentary and of administration shall be grantable only by the Register of the proper county, the twenty-first peal. (Carpenter v. Cameron, 7 Watts, 51.) And the right of appeal is given by the thirtyfirst section of the Act of 1832. Being of opinion, therefore, it is for the Court only to be satisfied of the propriety of granting letters of administration, and this sufficiently appears from the facts stated in the petitions and answers, so much of the prayer of petitioners as requests an order upon the Register to issue letters upon the estate of decedent is granted. But we must decline to indicate to whom they shall be issued, as the selection is to be made by the Register in accordance with the law. The petitions are accordingly in part granted, as appears from the decree filed herewith. Opinion by HANNA, P. J. W. C. S. |