(108 A.) affidavit as a whole, then there is no averment | annuity and to invest and reinvest the balance, that the said sum is the usual and ordinary and did not dispose of residue of principal, the charge for such repairs. heirs and next of kin had a standing to appear and be heard at audit of trustee's account, showing a balance of income, and to claim invalidity of charitable bequest, and that under Act 1855 (P. L. 332) § 11, on failure of any residuary legatee or devisee, part of estate went to heirs. As to the third item there is no averment that the compressor was ever shipped to the shop, or that it was necessary to ship it to the shop, and the statement of freight of about $100 has nothing on which to rest. As to the fourth item, there is no averment as to the price paid for the various articles which go to make up this item, and that the prices paid were the fair market price for such articles. As to the fifth item, the affidavit fails to state how much of the amount claimed was for failure of the compressor to operate, and how much was for failure of it to be of the capacity required, or how such amount was arrived at. If the compressor was not of the capacity required by the contract, and the defendant used it and continued to use it, which he did, his damages would not be based on so much per day for loss in capacity, but would have to be ascertained by another measure; at any rate this item of damages cannot be sustained under any averment in the affidavit. The rule is that averments such as are above considered are necessary in a statement of claim, and therefore, are required in an averment of and therefore, are required in an averment of set-off. Bethlehem Steel Co. v. Topliss, 249 Pa. 417, 94 Atl. 1099, and cases therein cited. In our opinion, the affidavit of defense under the adjudicated cases, and especially since our Procedure Act of 1915 (P. L. 483), is entirely insufficient to prevent judgment. And now, to wit, November 20, 1918, the rule And now, to wit, November 20, 1918, the rule for judgment is made absolute, and upon filing by plaintiff's attorney of a proper statement of liquidation, the prothonotary will enter judgment in favor of plaintiff and against D. J. Kervin, the defendant served, for the amount of plaintiff's claim. Argued before BROWN, C. T. L. Hampson, of Warren, and James PER CURIAM. The judgment in this case is affirmed on the opinion of the learned court below, making the rule for it absolute. (265 Pa. 88) In re SLATER'S ESTATE. (Supreme Court of Pennsylvania. May 21, 1919.) 1. TRUSTS 324-RIGHT OF HEIRS AND NEXT OF KIN CAN EXCEPT TO TRUSTEE'S ACCOUNT. Where testator gave residue of his estate in trust to pay an annuity to his widow for life or during widowhood and to establish a home for indigent old ladies out of his unsold real estate and any accumulated income and directed executor to keep estate subject to 2. WILLS 215-VALIDITY OF CHARITABLE BEQUEST NOT DETERMINABLE BEFORE FINAL DISTRIBUTION. Where testator gave the residue of his es- TO TRUSTEE TO SECURE PAYMENT OF ANNUITY in trust to pay certain legacies and an annuity 4. WILLS 81-FAILURE OF CHARITABLE BEQUEST DOES NOT AFFECT PREVIOUS PROVISIONS OF WILL. The failure of a charitable bequest because of insufficiency of the attestation under Act April 26, 1855 (P. L. 328) has no effect on earlier provisions of will. Appeal from Orphans' Court, Schuykill County. Exceptions by Bessie Slater Allen and George W. Slater to adjudication of a second account filed by Joseph W. Moyer, executor of Henry P. Slater, deceased, awarding a balance due the executor to provide an annual income to testator's widow under the provisions of the will. Exceptions dismissed and exceptants separately appeal. Decree affirmed on both appeals, and exceptions dismissed. See, also, Slater v. Moyer, 245 Pa. 60, 91 Atl. 216. Argued before STEWART, MOSCHZISKER, WALLING, SIMPSON, and KEPHART, JJ. Geo. M. Roads and Carl H. Wagner, both of Pottsville, for appellant. Daniel W. Kaercher and Roscoe R. Koch, both of Pottsville, for appellees. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes STEWART, J. These two appeals are from the same adjudication and raise precisely the same questions. Inasmuch as appellants stand in the same right, we shall consider the appeals as one. Each asks for a final adjudication of two separate and distinct questions; one relating to a matter now pending in the orphans' court and there awaiting decision, the other a strictly collateral question not at issue, and in regard to which any attempted adjudication in this proceeding would therefore be inconclusive, there being no subject-matter before the court on which it could presently operate. The two matters stand in no relation to each other, except that they arise out of the same estate. These are the general facts: Henry P. Slater, a resident of Schuylkill county, died December 2, 1912, testate; his will has been duly probated; he left surviving him a widow, who has accepted the provisions of the will, and two children by a former wife, a son and daughter, to each of whom the will gives a legacy of $5, and which both have renounced. The entire balance of his estate, consisting chiefly of real property, the testator gives by his will to Joseph W. Moyer, whom he appointed executor and trustee, upon the following trusts: (1) The payment of his debts and funeral expenses; (2) the payment to each of his children a legacy of $5; (3) the payment to his widow during her life or widowhood an annuity of $1,500 out of the net income of his estate; (4) the erection of a church window as a memorial to his father and mother, and (5) the establishment out of his unsold real estate and any accumulated income of a "Home for Indigent Old Ladies." The will is silent as to any residuum. Therefore, if any such residuum should exist or for any reason occur, the testator dying intestate as to it, the will would give it to his right heirs, in other words, to his two children who are the respective appellants here. The appeals are from the adjudication on the second account filed by the executor, awarding the balance thereof $4,802.47 to the executor, Joseph W. Moyer, for the purpose of providing the annual income of $1,500 to the widow under the provisions of the will. The appellants' contention is that the charitable bequests contained in the will are void, on the ground that one of the two attesting witnesses to its execution, Joseph W. Moyer, the executor and trustee, was not "a disinterested witness," and that therefore as to it, an intestacy results, and under the provisions of the law (Act 1855 [P. L. 332] § 11), there being here no residuary legatee or devisee, so much of the estate, in such case, goes to the heirs of the decedent. This would be entirely correct, assuming the charitable bequests to be void. The auditor and the court below were in entire agreement the account filed should be reserved to secure to the widow the payment of the annuity given her by the will. We do not understand that this finding is objected to on any other ground than that, if appellants' contention with respect to the invalidity of the charitable bequests were to be sustained, so much of the estate as was devoted to the charities became vested in the heirs at law, not at the time of such adjudication, but immediately upon the death of the testator, for it was then, if ever, as to the charitable bequests, that the will was void; and that testator's children have therefore a vested interest in the estate, and have a right to protect the estate from the time it was created. [1-3] The right of appellants as heirs at law of the decedent to appear in the proceeding before the auditor and the court is not to be questioned, whether their purpose in so doing, as they claim, was to protect the estate, or to ask a determination by the court of the questions they raised as to the failure of the charitable bequests for the reasons indicated. So much may be conceded. The jurisdiction of the court was not only ample, but exclusive, with respect to both features of the controversy, and the standing of the appellants to urge their present contention upon the consideration of the court on their own behalf is no less clear; but the power of the court in the exercise of its legal discretion to decree as it did upon the balance appearing to be due on the account of the executor, and declining in this particular proceeding to pass upon the question of the failure of the charitable bequests in his will, is equally clear. As to the first, it is a fact found by the court and not contradicted in any way, but conceded, that the balance on the account was required for the protection of the widow's annuity of $1,500, because of the destruction by fire of certain buildings from which the principal income was derived, a bequest entirely valid and enforceable and wholly independent of and unrelated to the charitable bequest. The objection urged to the action of the court, in awarding this balance to the legal representative of the decedent and his estate, is that it was not conditioned on his giving security for the money, whereas the heirs asked to have the fund awarded them "conditioned on the protection of the widow's rights and those of creditors." It is a sufficient answer to this to say that at no time in the proceeding in the court below was the insufficiency of the security suggested, nor is it now alleged. There is nothing in the case that indicates an improper exercise by the court of its discretion in this matter. In what we have already said we have recognized the standing of the appellants to be heard in the proceeding, and therefore there (108 A.) fear expressed that, except as to the ques-[ tion of the validity of the charitable bequests as now determined, "the heirs will be required to stand by, impotent to protect their property against possible waste, extravagance, or depletion." As to the second, our authorities are all in accord that the proper time for the determination of the question whether the testamentary charitable bequest is void is when the question of distribution of the estate arises. Technically the proceeding here, where the demand for determination of the question is made, may be a distribution proceeding; but in fact no portion of the estate is distributed under the decree. While the decree segregates the balance on the account to meet a contingency which, except as provided against, would most likely disappoint the widow in her annuity, the amount set apart yet remains an integral part of the estate. Final distribution of the fund yet remains to be made. This was in exact accord with the provisions of the will, which gives to the trustee the full and exclusive control and management of the entire estate until the widow's interest is terminated by her remarriage or death, to conserve the same for the protection of such interest. Carson's Estate, 241 Pa. 117, 88 Atl. 311, so much relied on by the appellants, decides nothing to the contrary of what we have here said. Counsel overlook the clear distinction between the cases. In the earlier cases the charitable bequest so challenged was of the testator's entire residuary estate in regard to the expenditure of which he gave minute and express directions. The register was there asked to deny probate of the will on the ground that it had not been executed in accordance with the requirements of the act of April 26, 1855 (P. L. 328). This he declined, and admitted the will to probate. An appeal was taken to the orphans' court, and the decree of the register was sustained. On appeal to this court, the only question at issue was the right and power of the register and the orphans' court to refuse probate of a will otherwise properly executed, on the ground that it contained a charitable bequest and had not been attested by two disinterested witnesses. We held, quoting from the opinion delivered by the present Chief Justice: "The probate of a will without regard to its provisions is one thing; distribution of the estate of the testator in accordance with the terms is another. * ** Distribution is for the court alone, and, on distribution, and not before, is the validity of the provisions of the will to be passed upon." For which conclusions many authorities are there cited. This follows at the conclusion of the opinion, and it is upon the expression of view here contained that appellants chiefly rely: "Whether the assailed charity is void, because the will had not been so executed, is a question to be determined on distribution, and an opportunity will be given these appellants to raise it and have it passed upon on the adjudication of the second account. The court be low can then be asked to determine whether It is quite evident that what is there said was not intended as a statement of general rule applicable to all cases where the validity what the court had in mind was the parof a testamentary charity is challenged. reason was discoverable from the testator's ticular will then under consideration. No will why, should the charity fail, distribution of the estate should be delayed until after the widow's death. The heirs upon whom the will would cast the inheritance tion of will, barring those relating to the contemplated charity, would be defeated or disappointed. were all known, and no provision or direc [4] Here it is far otherwise. This testator, by the second item of his will, gave his entire residuary estate, after the payment of his debts and funeral expenses and specific legacies, to his executor, as trustee, certain defined trusts, one of which was to pay out of the net income therefrom to his wife the sum of $1,500 per annum “for and during her natural life or so long as she remains my widow." Then by item 7 he directs: "Subject to the payment of my debts, funeral expenses and specific legacies as aforesaid, I order and direct my herein mentioned executor and trustee to keep and maintain my entire estate, real and personal, including the proceeds of my unimproved property, if sold by him, intact and to invest rent manage and keep my improved real estate in good condition and repair always to the best interest and advantage of my estate, and to collect and invest and reinvest the interest and income thereof and any balance of interest or income remaining after the payment of bequests, expenses, insurances, repairs and installments herein by me directed to be paid my wife, such balance shall from time to time be added to the body or corpus of my estate and be invested and reinvested as part of the principal thereof." Following this provision we find this further direction: "Subject to the foregoing provisions of this, my will, after the death of my said beloved wife, or in the event of her not accepting the provisions of this my will in her behalf or for her benefit, or in the event of her marrying again, then and in either such event I give, be queath and devise all the rest, residue and remainder of my said estate, real and personal, whatsoever and wheresoever to my herein named executor as trustee and his successors in trust as aforesaid, with full power and authority to carry out and execute." Then follows a description of the charitable trust, the sufficiency and legality of which these appellants would now assail. These provisions are too plain to admit of misunderstanding as to their purpose. They are the full equivalent of an express direction that the trust created by the will covering the entire estate was to continue until the remarriage or death of the widow. It was upon the happening of one or the other of these events that the charitable bequests, in what remained, were to take effect. Failure of the charitable bequests could have no effect on these earlier provisions of the will -the creation of the trust and the directions in regard to its continuance. This was made very clear in Slater v. Moyer, 245 Pa. 60. 91 Atl. 216, where in an action of ejectment these appellants sought to recover possession of the real estate of which the testator had died seized, on exactly the ground on which they here rely to support their present contention, the legal insufficiency of the attestation of the will under the act of 1855. In the opinion in that case delivered by the same judge who delivered the opinion in Carson's Estate, supra, this is said: "The first piece of evidence offered by the plaintiffs was the will of their father, and when they closed their case a nonsuit was asked for on the ground that they had themselves shown title or right of possession in the defendants. This was clearly so, and the nonsuit should have been granted solely on the ground that, under the will of the testator, probate of which could not have been denied, the title to his real estate at the time this action was brought was in his executor and testamentary trustee and the right to the possession of it in the defendants. Instead of entering the nonsuit on this plain and well-understood legal proposition, the trial judge, in passing upon the motion to enter it, said plaintiffs were entitled to go to the jury if J. W. Moyer was an interested witness to the execution of the testator's will within the meaning of the act of 1855, but, after proceeding to give his reasons why he regarded Moyer as a disinterested witness, he held that the will had been validly executed, and that the plaintiffs could not therefore recover. The question which the trial judge undertook to decide in passing upon the motion for a nonsuit was not in the case, and his misconception of the situation seems to have been followed by the court in banc in refusing to take off the nonsuit. The will had been executed by the testator in the presence of two witnesses, had disposition of his estate for the purpose of been duly admitted to probate, and was a valid paying his debts and funeral expenses and the annuity to his widow. Whether its provision creating the charity must fail by reason of his disregard of the statutory requirement as to the execution of a will bequeathing or devising an estate in trust for religious or charitable uses is an entirely different question, to be passed upon when it arises. A will containing, among other provisions, one for religious or charitable uses is not void, under the act of 1855, if it is not attested as that act requires; it is only the religious or charitable bequest or devise that fails. [Here follows numerous citations of authority.] The question of the right of the appellants to the possession of the real estate left by their late father cannot arise during the time he has directed his executor to hold it for the purpose of providing an annual income for his widow. The net income from it may or may not be at all times sufficient to pay her the annuity of $1,500, but, without regard to this, until she remarries or dies, the title to all of her husband's real estate and the right of possession of the same, subject to the leases made by him, will be in his executor. Upon the remarriage or death of the widow, appellants may, in a proper proceeding, raise the question of their right to take the real estate of which their father died seised, on the ground that his disposition of it to a charity is void under the statute. If the charity be then declared void, they will be entitled, as heirs of their father, to take the land intended for it." The law governing the present case could not be more clearly expressed than it is here, and the opinion answers negatively every question raised by the appellants in their present contention. It is too patent to call for any discussion that what is there said as to the real estate applies with equal force and effect to the personal estate. For the and effect to the personal estate. reasons we have stated, the decree appealed from is affirmed and the exceptions are dismissed at the costs of the appellants. Like judgment to be entered in both cases. (108 A.) for judgment for defendant non obstante (265 Pa. 148) (Supreme Court of Pennsylvania. 1919.) To establish his right to receive compensa. tion plaintiff relied upon a series of letters June 21, and interviews between him and Alba B. Johnson, president of defendant company. 1. BROKERS 53-SERVICES INSUFFICIENT TO The first interview was on April 20, 1915, ENTITLE BROKER TO COMMISSION. Plaintiff, in an action for commission for services rendered defendant in procuring contracts for the manufacture of munitions for the Allied governments, could not recover where it appeared from the evidence that the contract was not procured through his efforts, or through the agency of the one whom he had introduced to defendant, but resulted solely from the consummation of previous pending negotiations not originated by plaintiff and of which he had no tice. 2. BROKERS 56(3)-SERVICES SUFFICIENT TO ENTITLE BROKER TO COMMISSION. A broker who produces a purchaser who buys the property or is able and willing to do so upon terms acceptable to the principal has earned his commission, and the principal, pending negotiations, cannot escape liability by taking the matter into his own hands and completing the transaction personally. at which time plaintiff submitted to Johnson a letter received from one Mottelay, of London, stating the writer was "in very close touch" with buyers of certain Allied governments, and at the time had orders for 5,000,000 shrapnel cases "for cash and a commission of 72 per cent.," and requesting an opportunity to place the matter before American manufacturers. Johnson asked for specifications, and in a letter affirming the interview stated his company would not quote prices for steel cases unless an actual contract for the shells, evidenced by drawings and specifications, was in existence, and that his company was ready to accept such orders dependent upon condition of their work at the time, provided payments were properly guaranteed. On May 17th plaintiff wrote Johnson inclosing blueprints, and in referring to the commissions charged by his English correspondents called attention to the Appeal from Court of Common Pleas, Phil- absence of reference to commissions for him adelphia County. (plaintiff) and stated: Assumpsit by Howard E. Mitchell against the Baldwin Locomotive Works, a Pennsylvania corporation, and others, to recover commissions on a contract alleged to have been procured by plaintiff. Verdict and judgment for plaintiff for $218,750, motion for judgment n. o. v. denied, and defendant the Baldwin Locomotive Works appeals. Reversed, and judgment directed to be entered for defendant n. o. v. Argued before BROWN, C. J., and STEWART, MOSCHZISKER, FRAZER, WALLING, and KEPHART, JJ. F. B. Bracken, Morgan, Lewis & Bockius, and Prichard, Saul, Bayard & Evans, all of Philadelphia, for appellant. Wm. A. Glasgow, Jr., and Chester N. Farr, Jr., both of Philadelphia, for appellee. "I will therefore ask you to be good enough to consider that I would be entitled to some commission to be agreed upon between us." In reply to this letter estimates were given by Johnson in which it was stated: "The price quoted includes commissions aggregating 6 per cent." The proposal was never accepted, however, and nothing further was done. At this "identical time" Johnson informed plaintiff he was also submitting a proposal for similar work to J. P. Morgan & Co., agents for the British government, and inserted in the letter quoting a price to plaintiff the following statement: sign of shell no longer purchased by the French "The print sent appears to be an obsolete de FRAZER, J. Plaintiff sued to recover commissions alleged to be due for services rendered defendant in procuring contracts for the manufacture of munitions for the Allied governments, who were at the time engaged Subsequently, on June 25, 1915, Mottelay in war with Germany. The defense relied cabled plaintiff that he hadupon was that plaintiff had not been authorized to act for defendant, and that no con- "opened important negotiations with the Brittract was entered into as a result of plain-ish government involving purchase entire outtiff's negotiations whereby the latter would put munitions of both companies referred to in your letter 20th April for period of war. Terms be entitled to compensation. The various questions raised at the trial were submitted of contracts would be settled in America direct questions raised at the trial were submitted between companies and British government's to the jury, and a verdict rendered for plain- representative who sails for America immeditiff for $218,750, on which judgment was sub- ately. Urgent that you at once obtain agreesequently entered after refusal of a motion ments from both companies covering commis For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |