peachable. The judgment is affirmed. L. L., Jr. any kind. Dubs v. Dubs (31 Pa. 149) has in it] mained was for the jury, who were guided by inthe elements of a better case for the support of structions from the Court which seem to us unimthe proposed theory than the one in hand, but even it was found wanting of that which was necessary for the exclusion of the husband's rights. The gift in that case was "in trust for my daughter Adelaide, and her heirs," and as to the annual produce "in trust for the sole and separate use of my said daughter Adelaide, without, and free from the control of any husband Jan. '87, 206. to whom she may be married, and without any power of her, or of her and her husband to alien February 27, 1888. Rank v. Rank. or dispose of the estate, or principal of the money Arbitration-Awards-Correction of by Common by deed, mortgage, or any other instrument or contrivance." Pleas-Review of on writ of error- When case not referred back-Act of June 16, 1836, § 6, and § 7. While sect. 7 of the Act of June 16, 1836 (P. L. 717), referring to voluntary arbitration, provides that "if it shall appear to the Court that the referees have made a mistake, in fact or law, it shall be lawful for such Court to refer the cause back to the same referees for such further or other proceedings therein as shall be expedient," the Court is not bound in every case, even though they find that a mistake has been so made, to refer the case back to the arbitrators. Here is a separate use trust, and also an express prohibition of the power of alienation, neither of which is to be found in the deed of John McGinness to his daughter Catharine, and yet we held this to be an equitable fee, and that there was nothing to prevent its descent as a fee. Observe how completely the principle here announced covers the present proposition: Adelaide had but an equitable estate, which by the trust was put beyond the reach of her husband, and at her death the fee vested in her heirs and the equity merged, yet was her husband held to be entitled to curtesy. Fairies's Appeal (23 Pa. 29) was a case involving the distribution of personalty, nevertheless, in principle it is much the same as the one cited. There was a devise of both real and personal property to a married woman for her separate use with the provision "that the same shall not be liable for any contracts of her present or any future husband, or subject to curtesy, or any life estate, or of any award had been excessive, they were not bound to reHeld, that though the Court below thought the marital rights whatever of any such husband, fer the case back to the arbitrators for further proceedunless she shall see fit to give him benefit or ad-ings, but were justified in making an order reducing vantage therein by will or writing in the nature the amount of the award. of a last will." A provision such as this would seem to be sweeping enough to exclude the husband from every shadow of right in his wife's property; nevertheless, we held that as the donee took an absolute title, the separate use clause did not, on her death, prevent the husband from claiming as her distributee. Or, as we said, per Mr. Justice LOWRIE," the attempt to set aside the statute order of descents, without also providing a different order, is necessarily ineffectual." These cases show conclusively that even a separate use trust, without more, cannot deprive the husband of his curtesy, or of his right as distributee in his deceased wife's property. In the case in hand, however, there is no trust of any kind, but an absolute legal estate, which must necessarily, at her death, pass to her heirs or legatees incumbered with the husband's curtesy. Such being the case the defence, based on the defendant's interpretation of the deed, failed, and what re In a case of voluntary arbitration, the arbitrators awarded "in favor of the plaintiff for the sum of $319.26." Exceptions to this award were filed in time, but dismissed for a technical defect, after the time for excepting had expired. The Court, however, extended the time, allowed exceptions to be filed, and evidence to be taken in support of them, and in reduction of the the Court declined to approve the award unless plainamount of the award afterwards upon this evidence tiff would consent to reduce the amount thereof to $147.50. The plaintiff accepted judgment in said sum. On writ of error: Error to the Common Pleas of Montour County. Assumpsit, by Joseph Rank against Daniel W. Rank, to recover on a contract of sale of grain and farm produce. These The case was referred by agreement of the parties to arbitrators under the Act of June 16, 1836, § 6 (quoted at length in the opinion of the Supreme Court, infra.) The arbitrators made an award "in favor of the plaintiff for the sum of $319.26." The defendant filed exceptions to the report of the arbitrators in proper time. exceptions assumed that the reference had been under § 3 of above Act, and were accordingly dismissed. The defendant was granted further time to file exceptions under § 6 of said Act and to take testimony in support thereof, for the purpose of showing that the award was excessive. Considerable testimony having been taken, the Court, in an opinion by ELWELL, P. J., reviewed the case and the evidence, and concluded as fol- I made, whether plaintiff or defendant, shall have lows: "So far as I can learn from the evidence judgment thereon and the like process for the rethe only claim of the plaintiff which was sus-covery thereof as on a verdict in an action comtained by legal evidence was the one hundred menced by such party." The award in due form dollars, first above mentioned, amounting now was "in favor of the plaintiff for the sum of with the interest to $147.50. If the plaintiff will $319.26." Exceptions, predicated on the erroneaccept a judgment for that sum the exceptions ous assumption that the reference was under the will be disallowed, otherwise the report of the re- 3d section of same Act, were filed in time; but, ferees will be set aside." being irrelevant and without merit, they were summarily disposed of, and the case might well have ended there. The Court, however, as matter of grace, permitted the defendant to file sup The plaintiff thereupon filed the following paper: "And now, December 15th, 1886, in accord. ance with the decree of Court in an opinion rendered in the above stated case and filed of re-plementary exceptions and take testimony in supcord December 6, 1886, I, Joseph Rank, the above named plaintiff, do hereby consent to take judgment in the above stated case for one hundred and forty-seven dollars and fifty cents ($147.50), reserving, however, the right to proceed by any other form of action or legal proceeding for the recovery of my claim on account of the items held by the Court not recoverable in this case." From this judgment the defendant took this writ assigning for error the action of the Court in not referring the case back to the arbitrators, and that the award should have been further reduced under the evidence. port thereof, for the purpose of showing that the award was excessive in amount. After a careful examination and consideration of the evidence, the learned President of the Common Pleas came to the conclusion that some of the items included in the award had not been "sustained by legal evidence," and he accordingly declined to approve the award unless plaintiff would consent to reduce the amount thereof to $147.50. By writing filed within the time fixed by the Court, plaintiff, "reserving the right to proceed by any other form of action or legal proceeding for recovery of "the amount involved in the items referred to," consented to accept judgment for said sum of $147.50, Daniel W. Rank and James Scarlet, for the and the same was accordingly entered. plaintiff in error. The subjects of complaint in the specifications The award should have been set aside and the of error are that the Court did not refer the cause case referred back. Post v. Sweet, 8 S. & R., 391. Sands v. Rolshouse, 3 Barr, 456. R. R. Co. v. Ashton, 3 WEEKLY NOTES, 281. tors may impose terms. See v. Wilcox, 2 S. & R. 48. Wogland v. Burnes, 1 Binney, 109. April 30, 1888. THE COURT. This case was referred by the parties in open Court under the 6th section of the Act of 16th June, 1836, which provides as follows: "In all cases where the parties to any suit shall consent to a rule of Court for referring the matters in such suit to certain persons mutually chosen by them, the award of such referees, if made according to the submission of the parties, being approved by the Court and entered upon the record, shall have the same effect, and shall be deemed and taken to be as available in law as the verdict of the jury, and the party in whose favor such report shall be back to the referees, and that it did not further reduce the amount of the award or vacate it altogether. Such complaints as these come with bad grace from a party who has already received at the hands of the Court below more consideration than in strict justice he was entitled to. What was done after his irrelevant exceptions were disposed of was matter of grace and resulted in quite as full relief as under any circumstances could he be entitled to. While the 7th section of the Act provides that if it shall appear "the referees have made a mistake in fact or law," the Court may "refer the cause back to the same referees for such other or further proceedings thereon as shall be expedi ent," the Court is not bound to do so in every case. If, as in the case at bar, the defendant complains, not of any defect apparent on the face of the award, or any irregularity in the proceedings, but that the award against him is excessive in amount, in that it includes certain items that were not established by competent evidence, and appeals to the Court for relief, and the same, so far as he is entitled thereto, is granted, what right bas he to complain? It is a mistake to suppose that the Court is bound in every case where the award of the referees appears to be excessive in amount to refer the cause back to them. Full and complete justice may be done by making an order, as in this case, that unless a portion of the sum awarded be remitted by plaintiff, the award will be set aside, in analogy to the practice of making conditional orders for new trial, etc. Quarter Sessions of Huntingdon County, granting a warrant to the directors of the poor of said county to collect and receive the rents and profits of certain real estate to the amount of $300, and apply the same to the support of the wife and child of said Paul O. Decker. At the hearing, before FURST, P. J., the fol The authorities cited by plaintiff in error, do not sustain his position that the Court erred in not recommitting the report to referees. One of them, Post v. Sweet (8 S. & R. 391), was an award of arbitrators, which being filed in the pro-lowing facts appeared: Paul O. Decker was thonotary's office had the effect of a judgment, married to Florence Kirby in August, 1875, and and, on failure of either party to appeal, the same three months afterward deserted her and left the became absolute. Neither of the other cases State, returning clandestinely on January 31, (Pierce v. Shaw, 4 Bin. 485; and Kidd v. Em- 1887, to qualify as executor of his father's will. mett, 72 Pa. 150) goes so far as to say that when Mrs. Decker supported herself and their child the award is in due form and proceedings regular, until March, 1887, when, because of ill health, upon their face, it is the duty of the Court for no she was unable to do so. She then applied to other cause than existed in this case, to refer the the directors of the poor for relief, who made cause back to the referees. In the case last cited complaint before two justices of said county. there was a manifest error on the face of the The justices found that the said Paul O. Decker award which rendered the judgment entered was the owner of lot No. 215 in the borough of thereon uncertain and incapable of execution, and Huntingdon, and issued their warrant to seize this Court reversed the judgment in order that the goods and chattels, and the rents and profits the Court below might re-commit the award to the of the real estate of the said Decker to the extent referees for the purpose of correcting that error. of $300 per year for the support of his wife and In Sands v. Rolshouse (3 Pa. 456) it is said child. A transcript of these proceedings before that mistakes which appear on the face of a re- the justices was duly filed in the Quarter Sessions, port of referees are reviewable in a Court of and a rule taken to show cause why the proceederror; but, for the correction of other errors com-ings and warrant should not be annulled, and the mitted by the referees, the Court below is the order refused. After argument had upon this proper tribunal. rule the Court filed the following opinion: If a man who deserts his family is the recipient under a will, of a considerable sum over which he has absolute control, it is neither improper nor illegal to compel him to share that income with his family, at least to the extent that may be required for their economical maintenance and support. It is unnecessary to determine what is the nature and extent of his interest under the will. It is sufficient to know that he has under his control an income in "There is nothing in the will of N. C. Decker exhibited to the Court, which would prevent the seizure of the rent of the real estate devised to the trustee of Paul O. Decker, arising out of the clause, that it shall not be liable for his debts. "If the claim of the directors was strictly a debt,' it is a very serious question whether the will of N. C. Decker was intended to cover subsequent debts. This claim is subsequent to the death of said N. C. Decker, and there is no expression in the will which expressly refers to future debts which Paul O. Decker might contract. "But this claim is not in the nature of a debt. It is intended to apply to the estate of Paul O. and young child. The legal unity existing beDecker, to the support of his family-his wife tween husband and wife makes them one so far as support is concerned and the parental relation is such that the offspring is considered his own household, and part and parcel of his own support. His estate, under the will of his father, was intended to be applied to their personal support, which embraces his wife and minor child. "The fourth item in the will provides that Thomas M. Conpropst, the trustee, shall every which those dependent on him for support and main- six months pay over to Paul O. Decker, or to the tenance are entitled to participate. Certiorari to the Quarter Sessions of Huntingdon County. Appeal of Paul O. Decker from an order of the person he may designate, all the rents and profits of every kind, etc. etc., of the lot designated as No. 215, in the borough of Huntingdon, and the trustee, with the written consent of said Paul O. Decker, shall have power to sell the said pro A gift of rents and profits is a gift of the thing itself. Van Rensaler v. Dunkin's Est., 12 Harris, 252. Though a devise is to a husband alone, it is intended as well for his family. Ashurst v. Given, 5 W. & S. 323. perty, and invest the proceeds for the sole benefit of Paul O. Decker, or turn over the proceeds to Paul O. Decker, if he so demand, and this shall terminate the trust, etc. This, in our opinion, gives Paul O. Decker such absolute or beneficial ownership of the property devised to him, and of the rents and profits thereof, that will warrant the seizing of the rents for the support of his family. When a husband and father is so devoid of a sense of his duty and the obligations resting upon him by virtue of the marital relation to April 30, 1888. THE COUrt. This is a support his wife and infant child, he cannot with proceeding under the 29th section of the Act of any reason ask the Court to assist him in avoid-June 13, 1836, to subject so much of the rents, ing this duty. If a father, possessed of as much estate as this defendant seems to have, will permit his infant child to be cast upon the charities of the poor house, and abandon and desert his wife without cause, he cannot be heard to complain against the law which appropriates a part of his estate for their support. "We therefore approve of the proceedings in this case and enter judgment accordingly." A decree was entered sustaining the warrant and proceedings in the case, and authorizing the directors of the poor to receive the rents and profits of the property mentioned to the amount of $300 annually for the use, support, and maintenance of the wife and minor child of said Decker. Whereupon Paul O. Decker and Thomas M. Conpropst took these certioraris, assigning as error, inter alia, the decree of the Court. George B. Orlady and R. Bruce Petrikin for appellants. The ownership of the real estate was in Thomas Conpropst, trustee, and the rents and profits could not be taken for the payment of this debt. The will makes a "spendthrift trust" which is protected from the payment of the sum directed by the justices. Earp's Appeal, 25 Smith, 119. Varra v. Parke, 7 Id. 19. Brown v. Williamson, 12 Casey, 338. Bachman v. Wolbert, 2 WEEKLY NOTES, 438. J. R. Simpson (P. M. Lytle with him), for appellees. This is a claim against the property of the husband for the support of a wife and child under the Act of June 13, 1836. The law puts this claim ahead of the trustee, and seizes the rents before they could go into his hands. Sterling v. Com'w'th, 2 Gr. 162. issues, and profits of certain real estate, held in trust for defendant below under his father's will, as will be sufficient to provide for his deserted wife and child. The fact that they were both basely deserted by him is too clearly established to admit of any doubt; and the only question is whether the delinquent and heartless husband and father has such an interest in the real estate in question, or in the rents, issues, and profits thereof, as is liable to seizure under the provisions of the Act. The learned President of the Quarter Sessions is of opinion that he has, and in that we fully concur. The will of Nicholas C. Decker, creating a trust in favor of his son Paul, the defendant below, directs the trustee to pay over every six months to the cestui que trust or to whomsoever he in writing may designate, all the rents and profits of every kind accruing from the property referred to. He is thus the recipient semi-annually of a considerable sum over which he has absolute control. It is neither improper nor illegal to compel him to do what it should have been his pleasure to do voluntarily, namely, to share that income with his helpless wife and child, at least to the extent that may be required for their economical maintenance and support. It is unnecessary to determine what is the nature and extent of Paul O. Decker's interest in the land, or the proceeds thereof, under his father's will. It is sufficient in this, and in all similar cases, to know that he has under his control an income in which those dependent on him for support and maintenance are entitled to par ticipate. If promptly enforced, as it should be, the order of Court will doubtless accomplish the desired object. We deem it unnecessary to add anything to what the Court below has said in justification of the order complained of. There appears to be no error in the proceedings of which either plaintiff in error or his trustee has any just reason to A devise with power of disposal passes the fee. complain. Church v. Disbrow, 2 Smith, 219. The order of the Court below is affirmed, with costs to be paid by Paul O. Decker, defendant below. CONPROPST v. DIRECTORS OF POOR. April 30, 1888. THE COURT. Plaintiff in error, as trustee under the will of Nicholas C. Decker, deceased, intervened for the purpose of defending against the proceeding instituted by the Directors of the Poor, etc., against the cestui que trust, Paul O. Decker, and has taken this separate certiorari thereto. The questions involved in that contention as well as in this have been considered and disposed of in the opinion just filed in No. 373, January Term, 1888, Paul O. Decker v. Directors of the Poor, etc. For reasons there given the proceedings complained of should be affirmed. Merely formal defects, amendable in the Court below, may be treated as amended when the cause comes before the Supreme Court. Where profert of an instrument in writing is made, and oyer is not craved, the Court will look to the narr. for the terms of the writing, and will not take cognizance of any part of the same except that upon which the plaintiff has declared. Error to the Common Pleas of Wyoming County. Debt, by P. D. Harley to the use of D. J. and P. D. Harley, partners, now to use of D. J. Harley, assignee, against the Lebanon Mutual Insurance Company, on a policy of insurance. Plea, nil debet. The material portions of the narr. are set out in the opinion of SITTSER, P. J., infra. sixth condition of the policy in suit could be founded. (3) That the plaintiff's narr. and proofs adduced thereunder are not sufficient to show title of property in plaintiff, and right to recover at the time of the alleged loss, or at time of commencement of suit. After argument, the Court filed the following opinion : "We will first dispose of the motion in arrest of judgment. "On the trial of the cause we submitted to the jury the issue which had been made by the pleadings. This was determined for the plaintiff. It remains to be considered whether a verdict for the plaintiff upon the issue tried will entitle the plaintiff to judgment. "The declaration avers that the defendant on the 7th of January, 1880, insured certain goods of D. J. & P. D. Harley, in the partnership name of P. D. Harley, for three years. On the 13th of January, 1883, the policy was renewed for three years. On the 18th day of September, 1884, P. D. Harley assigned all his interest in the property and the policy of insurance to D. J. Harley. The loss by fire occurred on the 14th of June, 1885. It is averred substantially, that the defendants insured the property of a firm in the firm name. That afterwards one of the two partners assigned all his interest to the other along with the policy, and then the loss occurred. The loss was D. J. Harley's. If he had a contract of indemnity with the company he can recover, otherwise not. Is a contract of that character averred in the narr., and have the jury in their verdict found that such a contract existed? A recovery cannot be had in the name of the firm. Harley. It must be in the name of D. J. "Where the policy only is assigned, and the property remains in the person to whom the policy is issued, an action may be brought in the name of the insured to the use of the assignee. In the absence of prohibitory provisions upon the subject, the insurer can have no objections to the use party. If the insured has a legal claim it is of no consequence to the insurer that the legal plaintiff has directed that the sum due when so recovered should be paid to another. "But when the property insured has been assigned no action can be maintained in the name The case was tried on its merits before a jury, of the assignor. He has sustained no loss. The and a verdict was rendered in favor of the plain- loss is that of the purchaser, and owner of the tiff. Subsequently, defendant moved for a new property, and to enable him to recover he must trial, and in arrest of judgment filing the follow-aver and prove a contract to that effect with the ing reasons: (1) That upon the whole record the plaintiff is not entitled to recover judgment in this case. (2) That the averments in plaintiff's declaration are not sufficient upon which a waiver of the defendant. If authority be needed for so plain a proposition it will be found in Wood on Insurance, Chapter 10, pages 572-3-4. The defect in bringing the action in the firm name to the use of D. J. Harley can be cured by amendment. |