We find nothing in the act, or in any decision under it which has been called to our attention, making an exception to the refusal of such point a condition precedent to the exercise of the authority given by the act.

The assignments of error are overruled, and the judgment is affirmed.

Orphans' Court.

Estate of Charles W. Metzgar, Deceased

(No. 5).

Orphans' Court-Jurisdiction - Conclusiveness of decree Collection of rents by executor.

A want of jurisdiction appearing upon the record, can be taken advantage of at any time, in any court, when the conclusiveness of the judgment is the subject of general inquiry. An executor who collects the rentals of the real estate left by his testator, does so as agent of the devisees, and the Orphans' Court has no jurisdiction to distribute the same. Where a court has no jurisdiction of the subject-matter, jurisdiction cannot be given by

consent or agreement.

fully convinced that the case had not been clearly and accurately presented to the Court that we grant the request. The question involved seemed to us axiomatic, consequently our opinion was not as demonstrative as it otherwise might have been (Metzger's Estate, 28 Lancaster Law Review, 215). We will now take advantage of the opportunity to supplement that opinion and point to some apparently hidden facts which may mollify some impressions. Evidently the Court were left under the impression that we had been guilty of the unpardonable offense of disregarding a decree of the Superior Court. If we said anything to justify such a conclusion, crass ignorance is our only extenuation, and castigation was righteous. early taught to profoundly respect a decree and quite as early was instilled in us the theory of the law that there is no wrong without a remedy, and when we said: "If there is a decree of that Court, it is obviously our duty to conform to its mandate" (28 Lancaster Law Review, 215), we surely exhibited no refractory tendency. It was recognized that if there was a decree of the Superior Court that that was the end of the matter. Nothing could have been further from

We were

John E. Snyder, for estate.

B. F. Davis, for residuary legatees. December 15, 1913. Interlocutory Opinion by SMITH, P. J.

In behalf of Clara L. Rogers, a devisee under the will of Charles W. Metzger, deceased, and who was the appellee in the Superior Court, we are asked to suspend distribution of the rents yielded by Mary E. Metzger's and her properties and which were collected by John E. Snyder, Esq., who is the surviving executor of the will of Charles W. Metzger, until the Supreme Court shall have disposed of a petition about to be presented to them asking for a re-argument of this

decree. Such a recalcitrant procedure was never entertained nor suggested, and even had there been a disposition to do it, it does not seem to have been possible, for an attack implies an object of attack. That there was no decree was asserted and acted upon. It was believed that there was no decree because it was believed that there was no jurisdiction, and without the power to enter and enforce a decree words sounding in one are meaningless. As well might the striking of a photograph be declared an assault on the one whose image it is.

If this is correct, there was nothing for us to do but to refer the case to a court of competent jurisdiction, which we did on the rule to show cause why rents should not be distributed (28 Lancaster Law Review, 215). Walker's Appeal, 116 Pa. 419. Will any one question the propriety of this procedure? Was it not obligatory? The Court said

in Wall v. Wall, 123 Pa. 545, "The general rule on which the court below rested its ruling in this case is well settled. . . . But the general proposition thus affirmed must be understood as qualified by the same considerations that qualify the conclusiveness of judgments at law. Of these the most obvious is that which relates to the jurisdiction of the Court over the subject-matter and the persons affected by the judgment. If the Court has no jurisdiction, it is of no consequence that the proceedings have been formally conducted, for they are coram non judice." "If such want of jurisdiction appear upon the record, it can be taken advantage of at any time and in any court where the conclusiveness of the judgment is the subject of judicial inquiry. The reason for this is found in the fact that the record of the judgment bears on its face the proof of its illegality and shows the want of power in the tribunal to render it. When it is offered as a conclusive adjudication between the parties, an inspection shows that it is not, because the court had no power to make an adjudication." We believed we were only becomingly recognizing the discriminative fundamental which sustains judicial procedure and for which supreme respect is constitutionally commanded. Therefore, the interposition of the jurisdictional obstacle would not seem to have been error, unless that which was regarded as an obstacle was only a phantasy. Recalling the admonition given by former Chief Justice Mitchell to counsel who was arguing a case and who quoted unnecessarily in support of a horn-book principle of law, that "This Court is supposed to know some law," we forebear citing cases to sustain the principles that an executor who collects the rents of realty late the testator's does it as the agent of the devisee, that the Orphans' Court has no jurisdiction over the same, and "also, that where a court has no jurisdiction of the subjectmatter, jurisdiction cannot be given by

consent ".

We are not unmindful of the fact that "under the peculiar facts" of the case, the Court went so far as to sustain a distribution by the Orphans' Court of

rents collected by an administrator when it was the only way to prevent a glaring injustice and necessary to defeat the harmful consequences of acts savoring of fraud, but we find no case where the Orphans' Court has been ordered to distribute, commanded to award rents collected by an executor to strangers, to those who do not own nor ever did own the realty which yielded the rents.

It seems that there was an impression that the jurisdiction of the Orphans' Court had been enlarged by agreement. What of it if there had been such an agreement? Are we to understand that the jurisdiction of this Court can be expanded by agreements? But it is unqualifiedly asserted that there was no such agreement, and the records negative such a conclusion. On the contrary, objection was made to the jurisdiction of this Court. These very appellants, through their counsel, filed the following exception to the executor's account: "The accountant erred in including in his account the rents, to wit, $333.50, collected by him from October 1, 1902, to March 31, 1905, inclusive, as said rents form no part of the estate". This part of the exception was answered in these words: "Technically, the contention that they were improperly in the account is correct and to this extent the first exception is sustained." Metzger's Estate, 22 Lancaster Law Review, 348. Unfortunately, we followed this with, "They belong to the devisees, and to them ought to have been paid, and to them are awarded." The ruling on the exception we take it was right, but the appearance of making an award was not consistent with it and was wrong. The exception went to the jurisdiction of the Court, and we ought to have rested on the ruling and at once have turned "the parties over to a forum with proper jurisdiction". But even then, in the light of what followed, may have followed what did. By reason of the award an appeal was taken to the Superior Court. No one could have questioned the propriety of a reversal of the lower Court on the ground that it had exceeded its jurisdiction, and such would have been a decree, a logical one. It would have been con

gruous, in keeping with the established order of procedure. Instead by a "reciprocally disagreeing" process, taking the form of something resembling an action in ejectment they ousted the owners of the land and awarded the mesne profits to squatters. It was not possible for the Appellate Court, nor the Orphans' Court, to say to whom the rents belonged unless they first decided in whom was the title to the real estate, and which both Courts undertook to do in an action by a landlord against his agent. If the Superior Court had reversed the lower Court on the question before it, they would have emphasized the Orphans' Court's limitations, and no one would have been injured. The attention of each claimant would have been directed to the court with jurisdictional power to adequately adjudicate his or her rights. Fortunately, their original positions need not be changed, no legal barrier or equitable impediment has intervened. parties have the same opportunities now that they had in the beginning, if the Supreme Court see fit to modify their decree and remit the case to the Court of Common Pleas. Mr. Snyder, the agent, has in open Court assured all parties that no one shall be prejudiced by reason of the lapse of time, and has in writing promised to pay as the Court of Common Pleas may adjudicate. Would it not be just and fitting to put the parties in their original positions and let them fight out their differences in a way which would not compromise judicial procedure?

All

The facts of this case seem to justify a strict observance of the rule which "has been strictly adhered to". Morrison's Estate, 196 Pa. 80. Why abrogate rules, shatter principles, and arbitrarily create a jurisdiction to accommodate the appellants? There is no disputing the fact that the testator devised to the appellee and Mary E. Metzger the real estate which yielded the rents (Metzger's Estate, 222 Pa. 276). On what theory of law or equity, or every-day common sense, should the rentals of their properties be paid to appellants? There must be some reason for the unusual condition of things, and it may be traced to a

feeling which appeals to a sense of justice. While it may have nothing to do with the case it nevertheless is irrepressible. Doubtless it had its conception in the idea that the appellants have been wronged by reason of a combination of fortuitous circumstances. This can be gathered from the opinion of Porter, J., in Metzger's Estate, 49 Superior Court 406. No disposition was there to conceal the feeling that if something had been done differently or something had been done that was left undone, that the decree in Metzger's Estate, 222 Pa. 276, might have been in favor of the appellants, in which event, of course, some of the rents would belong to them. From this point of view it would appear as if a great misfortune had befallen them, and naturally one's sympathy would be aroused in their behalf. On the other hand, there are those who are intimately associated with Charley Metzger, who knew of his relations and had his confidence, who, if the decree in Metzger's Estate, 222 Pa. 276, had been otherwise, would have felt that his intention had been disregarded. John E. Snyder, Esq., his friend and counsel, who drafted his will, on the occasion of the taking of testimony explanatory of it, stated in open Court that when writing the will the testator told him that it was his intention to give Mary E. Metzger and Clara L. Rogers the properties as has been decreed in Metzger's Estate, 222 Pa. 276, and directed him to so express his intention, which, he says, he undertook to do, and which he did, as has since been demonstrated. Mr. Snyder offered to go on the stand and so testify. We refused to allow even his offer to go on the notes. At a previous stage of this case we expressed doubts as to the admissibility of any testimony as to the will. Had we been as well informed in the beginning as we were later all offers of evidence would have been excluded. Mr. Snyder's offer was just as allowable as any of the others, but none of them were proper. By what authority, under what principle of law may a will be attacked or explained by extrinsic testimony in the Orphans' Court to enable any one to prosecute a claim for

rents which accrued after the death of the testator, to assist a landlord in collecting from his agent, and if not within the jurisdiction of the Orphans' Court no testimony of any kind is admissible. Of course, this would not apply to partition proceedings, as in Metzger's Estate, 222 Pa. 276.

We are conscientiously impressed with the idea that a more than ordinary responsibility rests upon us. We can not shut out the feeling that this case may have escaped the many vicissitudes which have beset it had it not been for our blunder in awarding the rents. The mistake was no crime, but it would be pitiful not to attempt to correct it and to that end we will approve every legitimate effort which may lead to restoring the original status of the parties. True, it may be said that such a result will give the appellants no standing, but in our opinion they never had any. They oppose all efforts to establish a legal position, they resist an opportunity to present their claim in a court with jurisdiction, and ask that they be nursed in a court without jurisdiction, pleading for some one to devise some scheme regardless of jurisdiction by means of which they may get what they want. They are not asking for a legal procedure, but appealing for help to evade Their presumption assumes appalling proportions when we consider that if John E. Snyder, Esq., the agent who collected the rents, by some process heretofore unknown to the profession is forced to pay them to them, that he must again pay them to Mary E. Metzger and Clara L. Rogers, who have a suit for them against him in the Court of Common Pleas of Lancaster County. Truly an anomalous situation.

The subject is boiled down to the question of the Orphans Court's jurisdiction, and if this Court had no jurisdiction that would seem to be the end of it. Hardly will it be disputed that the jurisdiction of this Court is a limited one and that it has only such powers as have been expressly conferred. Porter, J., in the opinion in Metzger's Estate, 49 Superior Court 406, said, "The question of the ownership of this fund of $238.27

(which is the balance of the $333.50 refered to in the exception) had thus been finally determined, so far as the State of Pennsylvania has authorized any system of judicial procedure for accomplishing that result." What is meant by so far as the State of Pennsylvania has authorized any system of judicial procedure for accomplishing that result"? It is assumed that the jurisdiction of the Court of Common Pleas is not denied, and, therefore, what was said is intended to apply to the Orphans' Court. Certainly, the action of the Supreme Court is binding in "so far as the State of Pennsylvania has authorized" the Orphans' Court to act, and the converse is also true, if the State of Pennsylvania has not so authorized their action is not binding. It is also true that the Orphans' Court can do only those things which the State of Pennsylvania has given it power to do, and when it goes beyond that it exceeds its jurisdiction. Who but the legislature of Pennsylvania can enlarge the jurisdiction of the Orphans' Court, and who may usurp this function of the legislature? The Court are as quick to command respect for the prerogatives of a co-ordinate branch of the government as they are to demand it for their own, therefore, even if there had been an agreement between the parties it is fair to infer that they will not permit it to insidiously nullify a fundamental principle and supersede the legislature of Pennsylvania. Anything else is inconceivable, and would fan the flame which is heating the temper of the malevolent assailants of courts. It is not to be supposed that any one will insist that jurisdiction can be created by agreement or that this Court had jurisdiction over the rents. added to the executor's administration account. But for the purposes of argument let us try to imagine that there had been some kind of an agreement. What was it. What could it have been? There was no written agreement. The notes disclose no parole agreement. The records show only disagreement. The imaginary agreement necessarily would contemplate conclusiveness, an agreement which would bar an appeal from

the answer to be given. Not only would it be barred by the agreement but also by the existing conditions. The best we can imagine is, that by an agreement to agree the problem was submitted to a third party who happened to hold a judicial position but to whom as judge it could not have been referred, thereby the one thus called upon became a computer and was expected only to tell the parties how it appeared to him a sum of money should be divided.

We deem it right to continue the audit that Clara L. Rogers may have an opportunity to petition the Supreme Court for a re-argument. Instead of retarding the disposition of the case, this may expedite it, for if we now award to the appellants, our action would not be respected. Supported by folios of opinions Mr. Snyder protests that this Court has no jurisdiction over the subjectmatter and that he would feel justified in disregarding its order. Attachment proceedings would follow, and ultimately the Appellate Court would be called upon to say whether Mr. Snyder shall be committed to jail for contempt. If this Court had not exceeded its authority, he would be obliged to pay the penalty; if, on the other hand, the Court acted outside of its jurisdiction, the Court would be made to appear ridiculous. Why should Mr. Snyder.be sent to jail or the administration of justice be travested to satisfy the appellants who seem to have no legal, equitable or moral standing?

DeHaven's Estate is a precedent for this proceeding. Superior Court, No. 8, October Term, 1908. In that case the Supreme Court subjugated all things to their supreme sense of rightness, and

modified their decree.

The audit is continued.

Quarter Sessions.

Commonwealth v. Lansinger.

Larceny of note-Indictment for.

An indictment for the larceny of a promissory note need not aver that the defendant obtained the note by trick or artifice with intent to cheat and defraud where the facts alleged show a trick or artifice as where he obtained it to renew another note but used it otherwise.

Where an indictment alleges that the prosecutor gave a note to the defendant to renew

another note held by a third party, of which he was a maker, this is only giving the defendant possession, and the indictment sets forth an act of larceny without also averring that the prosecutor did not intend to pass the property therein to the defendant.

A signed promissory note is the subject of larceny and it is not necessary to aver or prove, on indictment for such larceny, that the prosecutor was compelled to or did pay anything on account of it.

Indictment No. 44 for larceny. Demurrer. Q. S. of Lancaster County. November Sessions, 1912, No. 9.

Demurrer to indictment.

C. Reese Eaby and John E. Malone, for demurrer.

John M. Groff, Dist. Atty., and Coyle & Keller, contra.

March 29, 1913. Opinion by HASSLER, J.

The indictment in this case charges the defendant with the larceny of a promissory note for $5,000, of which the prosecutor, Christian Kunzler, was the maker. It alleges, among other things, that "the said J. W. Lansinger did on or about the 10th day of June, A. D. 1912, unlawfully obtain from said Christian Kunzler said promissory note for $5,000, signed by said Christian Kunzler, dated June 10, 1912, payable three months after date, to the order of J. W. Lansinger at the Union Trust Company of Lancaster, Pa., for the purpose of renewing a certain other promissory note for a like amount, signed by said Christian Kunzler, dated March 8, 1912, payable three months after date to the order