Commonwealth v. 26 Quarts, &c., in Possession of Jacob Cartun. wholesale liquor business, an inventory of all stock on hand was furnished by the defendant to the United States Government of the supplies on hand, and the said barrels, boxes, &c., were duly marked in accordance with the said inventory. Upon a search warrant based upon the supposed possession of liquor illegally, and upon information gleaned by the police officer by the visits of the defendant to his warehouse, the liquors and implements were seized, and are now sought to be condemned. It is admitted in this case that the liquors are not kept for sale or for any purpose to violate any of the provisions of the act. The question presented is whether such possession by the defendant is unlawful? Section 3 of the Act of March 27, 1923, P. L. 34, provides, inter alia, as follows: "It shall be unlawful for any person to manufacture, sell, offer for sale, barter, furnish, transport, possess or deliver within, or import into, or export out of, this Commonwealth any intoxicating liquor for beverage purposes, except as hereinafter set forth. . . ." Section 4 of said act provides as follows: "It shall not be unlawful, however, to possess intoxicating liquor for beverage purposes in one's bona fide private dwelling while the same is occupied and used by him as his dwelling only, provided such liquor was lawfully acquired prior to the passage of this act, and is for use only for the personal consumption of the owner thereof and his family residing in such dwelling, and of his bona fide guests, when entertained by him therein, which entertainment shall not be deemed an unlawful furnishing. . . .” Under the Volstead Act, it is provided, in section 3, as follows: "No person shall, on or after the date when the 18th Amendment to the Constitution of the United States goes into effect, manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor except as authorized in this act, and all the provisions of this act shall be liberally construed, to the end that the use of intoxicating liquor as a beverage may be prevented." By section 33 of this act it is provided: "It shall not be unlawful to possess liquors in one's private dwelling while the same is occupied and used by him as his dwelling only, and such liquor need not be reported, provided such liquors are for use only for the personal consumption of the owner thereof and his family residing in such dwelling, and of his bona fide guests, when entertained by him therein." Does the Act of March 27, 1923, P. L. 34, require actual physical possession of liquors in one's private dwelling as essential to make such possession legal? We are not disposed to so hold. What constitutes possession? "Contact certainly is not necessary. It is enough for a man, so far as that is concerned, that no one else has possession, and that he has, in consequence, power to take the property in hand at will. There must be a power of control over property and a purpose to exercise the same for the benefit, at the time, of the holder, or facts from which such a purpose could be assumed if the mind was directed to the object of possession:" Bigelow on Torts, 369; Pollock, Genesis at Common Law, 120; Bouvier's Law Dictionary, 2535; Holmes's Common Law, 207; 31 Cyc., 923. By the act, a private dwelling is defined to be one in its ordinary sense as well as a room or rooms in an apartment-house, hotel or boarding-house. It would be an unreasonable interpretation of the act to hold that a person living in an apartment-house or hotel was obliged to keep his entire stock of liquors in said room or rooms, or that a person with no accommodations at Commonwealth v. 26 Quarts, &c., in Possession of Jacob Cartun. his home could not keep it in storage. Any other construction placed upon our act of assembly would be unreasonable. "Where words of a statute are susceptible of two constructions, one of which is unreasonable and the other not so, the latter interpretation must be adopted, even though it be a liberal one:" Com. v. Blackman, 82 Pa. Superior Ct. 362 (1923). The Volstead Act and our act of assembly, in the sections hereinbefore quoted, are almost identical in terms and deal with the possession of intoxicating liquors. What is meant by possession, as used in the Volstead Act, the interpretation of which, in our judgment, is likewise applicable to the Act of March 27, 1923, P. L. 34, was decided in the case of Street v. The Lincoln Safe Deposit Co. et al., 254 U. S. 88 (1920). The defendant in this case conducted a warehouse business and the plaintiff was the lessee of a room in said warehouse, in which he had stored wines and liquors legally acquired by him prior to the passage of the Volstead Act and for use by him and his family or guests. After the Volstead Act became effective, the enforcement agent threatened to seize said liquors of plaintiff so held and possessed. The District Court for the Southern District of New York decided adversely to the plaintiff. In reversing the decision in an opinion by Justice Clarke, the Supreme Court said: "Assuming that the unexplained presence of the liquors in the company's warehouse would give rise to the prescribed presumption, yet, if that presumption should be rebutted by appropriate testimony (as it is in this case by admission) that the liquor to which it is applied is not being kept for the purpose of sale, barter, exchange, furnishing or otherwise disposing of it in violation of the provisions of the title, the implication is plain that the possession should be considered not unlawful, even though it be by a person 'not legally permitted;' that is, by a person not holding a technical permit to possess it, such as is provided for in the act. "Without saying that there may not be other cases, the one at bar seems to be fairly within the scope of this obvious implication of section 33. "It may be that the custody of liquors by a warehouse company was thus not declared to be unlawful because the writers of the act did not have such a case in mind, but it was more probably because Congress would not consent to allow lawful possession and use of liquors in dwellings having storage facilities for them, while denying the only possible means of preserving and protecting such liquors to persons with less commodious homes. The Congress was concerned with the great problem of preventing the manufacture and sale of intoxicating liquors for beverage purposes in the future, and it seems to have given but slight attention to the consumption of such relatively small amounts of such liquors as might be in existence in private ownership and intended for consumption by the owner, his family or his guests when the amendment and the act should take effect. "An intention to confiscate private property, even in intoxicating liquors, will not be raised by inference and construction from provisions of law which have ample field for other operation in effecting a purpose clearly indicated and declared." There is no evidence in the case at bar to establish that the defendant, Jacob Cartun, had committed any crime or that he held any liquors in violation of the provisions of any law. Commonwealth v. 26 Quarts, &c., in Possession of Jacob Cartun. As was said in Street v. The Lincoln Safe Deposit Co. et al., 254 U. S. 88 (1920): "To enforce it as thus construed would result in virtual confiscation of lawfully-acquired liquors by preventing and unduly interfering with their consumption by the owner. The 18th Amendment gave no such power. . . Manufacture, sale and transportation are the things prohibited; not personal use." As the Act of March 27, 1923, P. L. 34, does not make it unlawful to possess liquors for personal use, as provided in section 4, hereinbefore quoted, and from the facts in this case, we are of opinion that the petition of the District Attorney to condemn the property of the defendant should be and is dismissed, and the liquors and utensils seized under the search warrant and now held in the custody of the Commonwealth are hereby ordered returned to the defendant, Jacob Cartun. Bernstein v. Quaker City Cab Company. Witnesses-Cross-examination-Defendant's witness employed by casualty company-New trial. The fact that plaintiff's attorney asked defendant's investigator, when under cross-examination, whether he was not in the employ of a casualty company, which question was not answered by the witness, is not, in itself, sufficient to require the court to withdraw a juror, and, hence, the refusal of the court to do so is not ground for new trial. Motion for new trial. C. P. No. 5, Phila. Co., Dec. T., 1921, No. 8729. HENRY, P. J., 52nd judicial district, specially presiding, Dec. 21, 1923.-In this action of trespass for personal injuries, claimed to have been suffered by reason of the alleged negligence of the defendant, the jury returned a verdict in favor of Samuel Bernstein for $629, and in favor of Regina Bernstein for $1000. The defendant has moved for a new trial, and in support of the rule urges only one reason, and that is that the motion to withdraw a juror should have been allowed when counsel for the plaintiffs asked a witness, under crossexamination, whether he was not in the employ of a casualty company, after the witness said he went there as an investigator for the defendant. The question was not answered. Subsequently a formal offer was made at sidebar to prove by cross-examination that the witness went there on behalf of a casualty company. This offer was overruled. While being interrogated upon this subject, and in reply to the question whether he went there to investigate on behalf of somebody else other than the Quaker City Cab Company, the witness answered: "I was employed to handle nothing but Quaker City Cab Company accidents. When I left the American Express Company to work for the concern that handled nothing but-nothing but the Quaker City Cab Company work." Defendant at the argument admitted that the witness was in the employ of the casualty company and not in employ of defendant. While it is true that any reference to insurance carried by a defendant is improper and usually works to the defendant's prejudice, yet there would seem to be no good reason why a witness could not be asked as to his employment, although it might possibly involve the mention of an insurance or casualty company, and where this fact is developed upon cross-examination for the sole purpose of affecting the credibility of the witness, it would seem to be proper. This is in accord with Lenahan v. Pittston Coal Mining Co., 221 Bernstein v. Quaker City Cab Company. Pa. 626, where it was held that it might be shown upon cross-examination that a witness "has an interest direct or collateral in the result of the trial or that he is a relation to the party, from which bias would naturally result. Such an examination goes to the credibility of the witness. The right is not to be denied or abridged because incidentally facts may be developed that are irrelevant to the issue and prejudicial to the other party. This chance the party takes when he calls the witness." The evidence in the case tended to show negligence upon the part of the driver of the defendant, and the damages awarded by the jury are not excessive, if the evidence of the plaintiff is to be believed. And now, to wit, Dec. 21, 1923, rule discharged and judgment is hereby directed to be entered upon the verdict in favor of the respective plaintiffs and against the defendant upon payment of the jury fee. Freeman's Estate. Wills-Construction-Words importing death. 1. Under a clause in a will directing the apportionment of shares in the income of a trust estate to testator's children, "the lawful issue of any deceasing child to be entitled to their parents share equally per stirpes, and the shares of any deceasing child leaving no lawful issue to increase the shares of the survivors and the shares of issue of deceasers" in certain proportions, the word "deceasing" refers to death in the lifetime of the testator as distinguished from death at any time during the life of the trust. Trustees and cestuis que trust-Assignment by cestui que trust to director of trustee corporation as agent for another corporation. 2. A, who was a director in the G. Company, trustee for certain interests created by will, purchased the interests of certain of the cestuis que trust in the trust fund, acting for another corporation, which furnished the consideration money, he himself having no financial interest in the transaction: Held, that in the absence of fraud the assignments were good. Semble. A director of a trustee corporation is not within the rule forbidding those in confidential relation to purchase the interests of the beneficiaries of a trust, as no such confidential relation exists between the director and the beneficiary: per Henderson, auditing judge. Exceptions to adjudication. O. C. Phila. Co., Jan. T., 1881, No. 228. The facts appear from the opinion of the court in banc and from the following extract from the adjudication of the auditing judge (Henderson, J.), who said: “Warwick B. Freeman and Mrs. Virginia L. F. Grant, children of William H. Freeman, the distributing of whose one-sixth share is now being considered, objected to the assignments which they had given to Henry Tatnall of their respective shares in the estate, on the ground that Mr. Tatnall, at the time he took the assignments, was a director of the Girard Trust Company, and, hence, was within the rule forbidding those in confidential relation to purchase the interests of beneficiaries of the trust, at least without showing that they have made a full disclosure of every relevant fact. No authority was cited to me in which a director of a trustee corporation was held to be within the rule, and I know of none. The reason of the rule is founded on the confidential relations between the parties, and as no such confidential relation exists between a beneficiary and a director of a trustee corporation, I am of the opinion that the rule should not be extended to include such director. Freeman's Estate. "The distributees also contended that their interests were contingent, and, hence, the assignee had thrown upon him the burden of showing that the transaction was fair and conscionable. As I am of opinion that these interests were vested, I need not consider this question further. "It was also contended on behalf of these distributees that the assignments were bad because it had been represented to them that they were executing mortgages upon their respective interests and not making a grant thereof. While each of these distributees testified to the fact that they thought they were executing a mortgage, when they were asked to explain the debt for which the mortgage was to be collateral security, they were unable to do so. The written assignments must be regarded as the consummation of their negotiations, and, as no adequate proofs were offered to set the same aside, they will be sustained and these distributees' respective shares will be awarded to the Real Estate Trust Company, the present holder of the assignments of their interests." John G. Kaufman and Henry A. Hoefler, for exceptions. James Arthur Ewing and Frederick C. Newbourg, Jr., contra. THOMPSON, J., March 28, 1924.-The questions raised by the exceptions before us can be classified as follows: First, those relating to the construction of the wills of Henry G. Freeman and James Black Freeman; second, the validity of certain assignments by various legatees; third, rulings of the auditing judge on offers of evidence respecting said assignments. All of the questions raised by the above classification have been elaborately discussed, and in our judgment properly decided, by the auditing judge, and it would unduly prolong the discussion to further elaborate thereon in detail, but we may say that as to the construction of the will of Henry G. Freeman, deceased, we have adopted, and again adopt, the construction placed thereon by the Superior Court in Freeman's Estate, 35 Pa. Superior Ct. 185, and in 40 Pa. Superior Ct. 31, on proceedings taken by some of the children of Charles D. Freeman. James Black Freeman, one of the children of Henry G. Freeman, by his will exercised the power of appointment given him under the will of his father by appointing his one-sixth interest to and among his children in the following language: "I direct and appoint the said income to be apportioned among and paid over to my said children in the following shares and proportions namely. Three thirtieth parts or shares to my daughter Helen, widow of F. Carroll Brewster, of Philadelphia, three thirtieth parts or shares to my daughter Matilda, wife of Ernest Dusuzeau, of Nautire Seine, France. Five thirtieth parts or shares to my daughter Minnie Thomson Lee, formerly wife of Daniel W. Lee, three thirtieth parts or shares to my daughter Lena, widow of Lewin Lightfoot, eight thirtieth parts or shares to my said adopted daughter Mary Anne Williamson, eight thirtieth parts or shares to my son Robert C. Freeman, residing in St. Louis, Missouri, United States of America. The lawful issue of any deceasing child to be entitled to their parents share equally per stirpes and the shares of any deceasing child leaving no lawful issue to increase the shares of the survivors and the shares of issue of deceasers each in the same proportion as the respective shares of such survivors and issue bear towards one another in the original grant and at the death of the longest liver of my brothers and sisters when my said father's estate comes to be divided in terms of his said will among the persons receiving or entitled to receive the income thereof immediately prior to such death of such longest |