Volume 276 — Pennsylvania State Reports

<p>Appeals, Nos. 128 and 129, by defendant, Gustave Kaufman, from judgment of C. P. Allegheny Co., Jan. T., 1921, No. 835, on verdict for plaintiff, in case of American Trust Co. v. Gustave Kaufman and W. J. Garcey, individually and as copartners doing business as Kaufman & Garcey and tenants as garnishees.</p> <p>Issue on plea to jurisdiction.</p> <p>Rule to quash writ of foreign attachment. Before Ford, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff and judgment thereon.</p> <p>Buie to quash discharged. Defendant, Kaufman, appealed.</p> <p>Errors assignued, among others, were refusal of judgment for defendant n. o. v., quoting record, and order discharging rule to quash, quoting it.</p>

<p>Appeal, No. 132, Oct. T., 1922, by defendant, from order of C. P. Allegheny Co., April T., 1922, No. 880, making absolute rule for judgment for want of a sufficient affidavit of defense, in case of Mary McCague v. Benjamin J. Schwartz.</p> <p>Assumpsit for breach of contract to purchase real estate. Before Stone, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Rule absolute. Defendant appealed.</p> <p>Error assigned was order, quoting it.</p>

Appeal, No. 184, Oct. T., 1922, by Ludwig I. Grote, Exr., from decree of O. C. Allegheny Co., April T., 1920, No. 126, dismissing exceptions to adjudication in estate of William Fitzgibbon, deceased. Exceptions to adjudication. The opinion of the Supreme Court states the facts, Exceptions dismissed in opinion by Miller, P. J. Ludwig I. Grote, executor, appealed. Errors assigned were dismissal of exceptions, quoting record.

<p>Will — Power of appointment — Limitation on power — Widow-Trusts and trustees — Substituted trustee — Family settlement— Sale — Orphans’ court sale — Price Act — Jurisdiction of orphans’ court — Beal estate — Conversion.</p> <p>1. In determining whether a power of appointment is validly exercised, consideration must be directed to the intention of the donor, the purpose for which the power was created, and whether its exercise expressly or impliedly violates the conditions laid down by the donor.</p> <p>2. Where a testator gives to his widow his estate in trust, blending real and personal estate, and empowers her to divide her estate among their “joint issue” in such manner and in such proportion as she may think proper and advisable, the appointment to be as “effective as if made by” himself, the will of the widow is supreme within the class designated. If she designates all the children of herself and husband, she is well within the power.</p> <p>3. In such case no agreement made between herself and children, interfering with the appointing power confided by the husband, can bind her hands contrary to the provision of her husband’s will.</p> <p>4. Where the widow resigns the trust, and a trust company is appointed by the orphans’ court in her place, and subsequently she dies leaving a will by which she exercises the power of appointment within the limitations of her husband’s will and in accordance with a family settlement, and designates the trust company as her trustee, and provides for the division of the estate in cash, the legal title of the real estate passes to the trust company, and such company has standing to petition the orphans’ court for leave to sell under the Revised Price Act, so as to divide and distribute the estate.</p> <p>5. By the terms of the widow’s will, there is a conversion of the realty.</p>

<p>Appeals, Nos. 71 and 72, Jan. T., 1923, by defendant, from judgments of C. P. No. 5, Phila. Co., March T., 1920, No. 6410, on verdicts for plaintiffs, in case of Arthur W. LeVan and Barbara LeVan, his wife, v. William L. McLean.</p> <p>Trespass for personal injuries to wife. Before Martin, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for Arthur W. Levan for $2,500, and for Barbara LeVan for $10,000. Defendant appealed.</p> <p>Errors assigned, inter alia, were (1) refusal of binding instructions for defendant, quoting record, and (3) charge as to present-worth rule referred to in opinion of Supreme Court, quoting bill of exceptions.</p>

<p>Criminal law — Murder—Robbery—Evidence — Presumption of law — Reasonable doubt — Question of fact — Charge—General exception — Appeal.</p> <p>1. Where property stolen, at the time of a murder is subsequently found in the possession of the defendant, and his explanation of his possession of the property is not only entirely unconvincing, but bears on its face evidence of bad faith, the jury have a right to weigh his statements against! him, in deciding the question of his guilt.</p> <p>2. The possession by a person of recently stolen property is evidence from which it can be found he is the thief, but the presumption is one of fact, not of law, and the jurors must pass on it as a part of the evidence against the accused.</p> <p>3. The jury must also judge of the explanation of the accused, which, even though not entirely believed, may raise a reasonable doubt of defendant’s guilt, or, if accepted as true, may overcome the presumption or inference against him, and require further proof from the prosecutor.</p> <p>4. If the explanation is rejected in whole or in part because unworthy of belief, this may serve to strengthen the case of the Commonwealth.</p> <p>5. An instruction that possession of the property by the defendant raises a presumption of law that the defendant stole it is not ground for reversal, where the jury is repeatedly informed that the truth and reasonableness of defendant’s explanation are matters for them and not for the court to determine.</p> <p>6. A trial judge need not repeat with each separate instruction the fact that the Commonwealth must prove every essential element of its case beyond a reasonable doubt.</p> <p>7. The court commits no error in refusing to affirm a point for defendant in a murder case, where no evidence produced by either side warrants the decision, of the case on the theory suggested by the point.</p> <p>8. Where defendant takes only a general exception to the charge, he is not in a position to complain of mere inadequacies, lack of fullness at certain points, or failure to reiterate relevant principles in connection with named instructions when these are stated elsewhere in the charge.</p>

<p>Appeal, No. 154, Jan. T., 1923, by plaintiff, from decree of C. P. Lehigh Co., Oct. T., 1921, No. 1, dismissing bill in equity, in case of Hannah Schnurman v. Jesse Z. Hillegas.</p> <p>Bill in equity to compel reconveyance of real estate. Before Groman, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Bill dismissed. Plaintiff appealed.</p> <p>Error assigned, inter alia, was decree, quoting it.</p>

Appeal, No. 278, Jan. T., 1923, by defendant, from judgment of O. & T., Huntingdon Co., Sept. T., 1922, on verdict of guilty of murder of the second degree, in case of Commonwealth v. Herbert J. Bryson. Indictment for murder. Before Bailey, P. J. Tbe opinion of tbe Supreme Court states tbe facts. Verdict of guilty of murder of tbe second degree upon which sentence was passed.

<p>Appeal, No. 70, Jan. T., 1923, by plaintiff, from judgment of C. P. Lebanon Co., Sept. T., 1920, No. 90, on verdict for defendant, in case of Allen C. Haak v. Kate Tobias.</p> <p>Ejectment. Before Henry, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were, inter alia, rulings on evidence, referring to the record by pages.</p>

<p>'Workmen’s compensatioft~-Evidence — Opinion of expert as to illness corned “by accident.</p> <p>1. An award of the workmen’s compensation board in favor of a workman will be affirmed, where tbe claimant testifies that his ailment followed and was caused by tbe accident, and this is affirmed by tbe positive opinion of tbe doctor wbo attended bim; tbis is tbe case altbougb other doctors would not say with tbe same assurance tbat tbe claimant’s ill bealtb was due to tbe accident.</p>

<p>Appeal, No. 86, Jan. T., 1923, by defendant, from judgment of C. P. Lehigh Co., April T., 1921, No. 1, reversing decision of Workmen’s Compensation Board, disallowing claim, in case of Ella Creasy v. Phœnix Utilities Company.</p> <p>Appeal from decision of Workmen’s Compensation Board, disallowing claim. Before Reno, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Decision reversed. Defendant appealed.</p> <p>Error assigned, inter alia, was judgment, quoting it.</p>