York Legal Record. Vol. XVIII. THURSDAY, MARCH 9, 1905. No. 41 ed to the Court for an order to sell the real estate of the decedent, John F. Bupp, deceased The petition states, in the caption, it to be the petition of Wilduced by said amount, and there is dis-ministrators of the estate of John F. Bopp, liam A. Bubb and Jesse A. Bubb, ad tributed in addition to the items contained in the Auditor's Report, which shows the "Balance on Principal Account" as $17,003 92. To Albert O. Strauss, Clerk of Orphans' Court, for recording Auditor's Report, $10; balance of principal account, $16,993 92; $17,003.92. Bopp's Estate. deceased, and it is also signed by others. beside the administrators, with the names of Priscilla Bopp, Urias Bupp, Emanuel beck, Eli A. Bupp, Louisa Wolf and W. A. Bupp, Emma Brodbeck, W. H BrodH. Wolf. The parties signing appear to be the widow and children, other than the administrator of the decedent, and the husband of Emma Brodbeck and Louisa Wolf. The petition is not in the petition stated to be their petition, except that their names are subscribed to it, with the signatures of those signing, stated in the petition to be the adminis Sale-Defective Petition-Setting aside. The petition is required to be the joint petition of the widow and heirs. A petition from the administrators cannot be held sufficient, even if the names of the widow and heirs ap: pear to it, where it does not appear on its face as the joint petition of the widow and all the heirs. The order is to be granted to the administrators or to a trustee, and not to the petitioners as was the order in question, the sale having been made by the administrators, as reported by one of them. The proceedings are so defective that they are incapable of adequate and effective amendment by the Court. The destruction of the buildings would not be relieved against, as, after the confirmation, the loss entailed by such destruction would have to be suffered by the purchaser. On the presentation of said petition it was ordered to be filed, aud the following decree was made: "And now, June 20, 1904, the Court having considered the foregoing petition, do order and decree that the real estate therein mentioned be sold at public sale by the petitioners as therein set forth; due notice to be given as required by law. The said real estate to be sold on the following conditions, viz: The purchaser or purchasers to pay ten per cent. of the purchase money cash or give a note with approved security payable within thirty days and the balance of the purchase money to be secured by a note with approved security payable on or before April 1st, 1905, at which time a deed and possession will be given. By the Court." On an order of the Court issued as in the decree, the administrators afterwards, on August 11th, 1904, reported tract No. one of the real estate of the decedent was sold to the petitioner, Daniel Krout, for $4.312 50, he being the highest and best bidder. A note for ten per cent. was given by the purchaser to the adminisRule to show cause why sale of real tors, for $430 10, since paid, and also a estate should not be set aside, &c. The administrators will not be required to repay the purchaser for the money expended in putting the crops in the ground, as they receiv. ed none of said money. Black & Hawkins for rule. K. W. Altland, contra. March 6th, 1905. BITTENGER, P. J.It appears, by the petition and answer filed, on which this case was heard, that on June 10, 1904, a petition was present note for the balance of the purchase money, payable April 1st, 1905. James A Bubb, one of the administrators, on August 15th, 1904, returned to the Court said tract No. one sold to Daniel M. Trout, for $4 312.50, which was filed, and the sale confirmed nisi; and in due course, on rule of court, absolutely. In the fall of 1904, the petitioner put erty of anything like the same value as out on said tract the crop, at an expense at the time he bid upon it; of $130.37. Thereafter, to wit, November 1st, 1904, the barn and outbuildings upon said land, at the time of the sale aforesaid, were destroyed by fire. The cost of replacing said barn and outbuildings will be approximately three thousand dollars ($3,000.00), while the insurance upon said buildings, which was in the name of the representatives of the estate of said decedent, aggregates twelve hundred dollars ($1,200.00). The petitioner, the purchaser, asks the Court to set aside the sale because the order of sale was ordered and confirmed without warrant of law; for want of jurisdiction in the Court, as follows: "First-The petition purports to be 'the petition of William A. Bubb and Jesse A. Bubb, administrators of the estate of John F. Bopp, late of Springfield township, York county, Pennsylvania, deceased.' Second-The said petition does not purport to be the joint petition of the widow and heirs and the guardians or committees of such as are minors or under disabilities in whom the real estate of the said decedent had vested. Third-There is nothing in said petition showing that all the parties in interest have joined therein. Fourth-In said petition it is not set forth that the parties in interest desire to have the said real estate sold. Fifth-The affidavit attached to said petition is made by one William A. Bupp, who describes himself as one of the ad ministrators of the said decedent. Sixth-Although the petition purports to be the petition of the administrators of the estate of John F. Bopp, it is signed by various other persons and is not signed by either of the administrators as such. The order of sale is not directed to the administrators or to a trustee, but to the petitioners, and is therefore unauthorized by and in violation of the aforesaid Act of June 12th, 1893." And for the further reasons that the order of sale was granted by the Court to all the petitioners, instead of to the administrators or a trustee. And because the burning of the buildings, makes it impossible for the Bupp estate to transfer to the petitioner prop The petitioner prays for a decree setting aside the said sale, the return by the said administrators of the ten per cent. of purchase money paid by the petitioner, $430. 10; the delivery up of the petitioner's note for the balance of the purchase money, and the payment to him of $130.37 expended by him in putting out the crops last fall. We have carefully examined the proceedings and find them so irregular and defective in the particulars specified, that the Court had no jurisdiction to order aud confirm the sale. The Act of June 12, 1893, is as follows: "Section 1. Be it enacted, &c., That whenever any person shall be seized of real estate and the parties in interest money for distribution it shall be lawful for the Orphans' Court of the proper county, in its discretion, upon the joint petition of the widow and heirs and the guardians or committees of such as are minors or under disabilities, in whom the real estate of the decedent shall have vested by descent or will, setting forth the description of the property, the desire to have the same sold, to order the executor, administrator or a trustee to make sale after he shall have given bond with one or more sureties in double the appraised value of the real estate, to be approved by the Court, and proceed thereafter in by existing laws in cases of the sale of all respects in the manner now provided real estate under proceedings in partition, and the proceeds of such sale, after the payment of the expenses thereof, shall be distributed to and amongst those entitled thereto, the same as real estate; Provided, That such sale shall have the same effect in all respects as a public sale in proceedings in partition of real estate under existing laws." desire the same to be converted into The petition is required to be the joint petition of the widow and heirs. A petl tion from the administrators cannot be held sufficient, even if the names of the widow and heirs appear to it, or names of the same persons, as in this case, where it does not appear on its face as the joint petition of the widow and all the heirs, of the decedent. The order is to be granted to the ad QUARTER SESSIONS. ministrators or to a trustee, and not to the also that they surrender to him the said petitioners, as was the order in question, petitioner his note given by him to them the sale having been made by the admin- for the balance of the purchase money istrators, as reported by one of them. hereinbefore mentioned, payable April 1, The proceedings are so defective that 1905. they are incapable of adequate and effective amendment by the Court. "Where a sale has been thus irregularly made, the Orphans' Court has the whole subject in its power and unless the conscience of the Judge is satisfied with the result as being the best for all parties that can probably be reached, he ought to order a new proceeding instead of amending the old one; Breil's Appeal, 24 Pa. 511. Com. v. Redman. Parent and child—Maintenance. compelling her to pay $1.00 a week for the Petitioner asked for the revocation of an order maintenance of her father, on the grounds that he used improper and slanderous languege concerning her, and that she was maintaining her mother and hence not able to contribute toward the support of the father. HELD, that the order will not be revoked. It is said by the Supreme Court, of the Price Act: "While a decree under the Act of 1853 possesses great curative powIt clearly appearing to the Court that the peers in a case in which the court had juris-titioner is possessed of valuable real estate and diction, there should be sufficient facts considerable personal property, ample to enset forth in the petition to confer said able her to comply with the very reasonable rejurisdiction. To proceed in this loose To proceed in this loose quirement of the order, she will not be relieved way is to peril the title to real estate. and we cannot sanction a practice so entirely informal;" Heffner's Appeal, 119 Pa. 462, 467. therefrom. acts of kindness, sacrifices and the parental The petitioner should remember the many anxiety of her father for her during childhood and early life as a young woman, and feel happy repay all his parental expenditures and kindly that in his declining years, she is permitted to care and support of her, to the trifling extent of the order of one dollar per week. Instead of find relief in the Almshouse, at public expense, making an effort to turn him out to perish, or she should take pleasure in voluntarily enlarg Had the Court had jurisdiction to grant the order and confirm said sale, the destruction of the buildings would not be relieved against, as after the confirmation, the loss entailed by such destruction would have to be suffered by the pur-ing her contribution to his support. chaser; Denny's Appeal, 43 Pa. 155. The impartial administration of justice requires the Court to set aside the sale and order the return to the purchaser of the moneys paid by him and also his note given for the balance of the purchase money. We have no power to require a repayment by the administrators, of the moneys expended by the purchaser in putting out the crops in the fall of 1904 They received none of said moneys expended on the farm in question. If the estate shall suffer loss through the setting aside of the sale, it will be through the fault of the administrators in not having the buildings burned, sufficiently insured. For the reasons stated the sale is set aside as prayed for, at the costs of the estate of John F. Bopp, deceased, and it is further ordered and decreed that the said administrators, William A. Bubb and Jesse Bubb, repay to the petitioner, Daniel M. Krout, the ten per cent of the purchase money, to wit: $430. 10, and Allowance must be made for the weakness and fretfuluess of old age, attended with illness In re petition and rule to show cause why petitioner should not be relieved from compliance with order of mainte nance. February 27, 1905 BITTENGER, P. J.-This rule, granted on the petition of Annie Redman, is an application to the Court to revoke the order of maintenance made after a full hearing of the parties and their witnesses, December 11, 1900, as follows: "And now, December 11, 1900, it appearing to the Court from the evidence on hearing, that Henry Koons, the prosecutor, and complainant, is aged seventytwo years and is decrepit and not able to earn a living and is unable to work and The principal matters relied on for the revocation of the order are that the petitioner is now supporting her mother, who is aged and in ill health and without other means of support, and petitioner is therefore unable to comply with the order of the Court; that her father, Henry Koons, spends the maintenance payable to him under the said order, for intoxicating liquors, and when so intoxicated slanders the petitioner with vile and abusive language, and that therefore she ought not to be required to contribute to his support and maintenance. maintain himself, except to a limited ex- the giving of recognizance as therein tent, and that the defendants, Annie contained.' Redman, Robert Koons, William Koons and Oliver Koons are of sufficient ability to pay such sums that the Court thinks reasonable and proper for the support of their said father; and it further appearing to the Court, from the evidence, that the said Henry Koons, the complainant, cannot be cared for and maintained in the homes of the defendants, or either of them, on account of differences between them and matters mentioned in the evi dence before the Court, the Court orders and directs that until the further order of the Court, the said Annie Redman to pay weekly from this date the sum of As found by the Court at the hearing $100 per week and that each of the and as appears in the testimony, the other defendants pay the sum of fifty father of the petitioner is old and unable cents per week for the support and mainto work, to earn a living; is now over tenance of the said Henry Koons, the seventy-six years of age and without the said sums to be paid to the Clerk of the Courts to be by him paid to such personnance would be dependent upon charity. support provided in the order of mainteor persons as may furnish lodging, clothing, boarding or medical attendance to the said Henry Koons, to whom the said Henry Koons shall in writing order the same to be paid as their claims may appear; And each of the said defendants is required to enter into a recognizance in the sum of $300.00 conditioned to comply with this order of Court, and that they pay the costs of prosecution or give security to pay the same within ten days and stand committed until this sentence is complied with. The sums ordered to be paid by each of the defendants is fixed at a reasonable and low amount because the prosecutor is the father of other five children who can contribute to his support, and the order is further made in the hope and expectation that the parties will come to an amicable agreement with each other, that their father shall live with one of the children and be supported by them or some of them, then this order can be revoked." January 9, 1900, as follows: Since the order was made he has lived with his wife and sons, together, and in consequence of their assistance in the maintenance of their parents, Henry Koons has released said sons named in the order, from the money payments in said order of Court specified. We are satisfied from the answer and evidence that the petitioner only took her mother to her house, without the request or consent of either of her parents, some four months prior to the filing of this application to the Court, for the purthe order for the maintenance of the father pose of influencing the Court to revoke of the the petitioner, and to aid in establishing her plea that with the burden of maintaining her mother, she is unable to comply with the order of maintenance, made by the Court, as aforesaid. There is no testimony on the part of the mother sustaining any request for maintenance of herself, to contradict the testimony of Henry Koons that she was supported in her home with her husband and sons, and taken away from said home without their consent, to aid the petitioner in escaping, in this proceeding, from the payment of the pittance of $1 00 per week, to the support of her aged, decrepit and indigent father. "And now, January 9, 1900 the defendant having on the date of the fore going order left Court without having complied with the order of the Court; and having this day been brought in on We find from the evidence that Henry process, the Court orders that the order Koons has not expended the moneys of the Court be enforced, in default of paid by the petitioner under the order Work Legal Record. Vol. XVIII. THURSDAY, MARCH 16, 190. No. 42 charged. The weight of the evidence is, however, that he has spoken unkindly and reproachfully several times, of her past life, with how much truthfulness of the Court, or any part of it, for intoxi we are not informed. Both should surely cating liquors, as she claims, but that all overlook and forget the past. Allowance except some $8 oo, yet remaining in the must be made for the weakness and frethauds of the Clerk of the Courts, has fulness of old age attended with illness been paid out to others on orders, as re- and the want of necessaries of life. This quired by the Court, for boarding, cloth-language of the father cannot be held ing and necessaries furnished; that said ground for the revocation asked for. Henry Koons has once or twice only, For the reasons stated the rule is disbeen visibly and offensively under the charged at the costs of the petitioner. influence of intoxicants, since the mak ing of the order of maintenance, and that Q. S. of he has not been requested to live with his said daughter, by her, as she claims and testifies, but that on the other hand Boroughs-Incorporation of-Petition. when he attempted to make his home with her he was improperly treated and expelled from her habitation. Lancaster Co In re Mountville Borough. Signers to a petition for the incorporation of their names when the petition is presented to a borough, will not be allowed to withdraw the Court, if such withdrawal would stop the It clearly appears to the Court that the proceedings, and the parties in charge of the petitioner is possessed of valuable real matter were led to incur expenses and liabilities by the apparent likelihood that sufficient signestate and a considerable amount of per-ers could be secured. sonal property, ample to enable her to comply with the very reasonable requirement of the Court's order to pay her father $1.00 per week for his proper maintenance, for the balance of his life, or till the further order of the Court. At seventy-six, he may not be expected to be dependent on his children for their trifling contributions to his support, for many years longer. a The petitioner should remember the many acts of kindness, sacrifices and the parental anxiety of her father for her during childhood and early life as young woman, and feel happy that in his declining years, she is permitted to repay all his parental expenditures and kindly care and support of her, to the trifling extent of the order of one doilar per week. Instead of making an effort to turn him out to perish, or find relief in the Almshouse, at public expense, she should take pleasure in voluntarily enlarging her contribution to his support. From our knowledge of her conduct in resisting the making of the order and her constant opposition to compliance with its terms, we realize that it is vain to look for gratitude or a sense of filial duty in her, to prompt her to act the part of a christian daughter in the premises. It is not necessary for the petition for the incorporation of a borough to state how many freeholders are resident within the limits of the proposed borough, nor is it necessary that the statement that those who signed the petition It is necessary, however, for the petition to are a majority of such freeholders be sworn to. state that the signers are a majority, in order to give the Court jurisdiction in the first instance. The authority given to the Court by the Act of April 1, 1863, to exclude farm land from a proposed borough carries with it the power to make such modifications of the boundaries of the proposed borough as the exclusion of the land renders necessary for the protection of all interests concerned. Parties opposed to the inclusion of land cannot object to the exclusion of it on the ground that formal request to exclude was not made by the owner. The term "freeholders" includes only those having interests in real estate either is severalty or in common in actual possession, and excludes those having vested interests subject to intervening life estates. One who signs a petition for incorporation as a borough, setting forth that he is an inhabitant of the proposed borough and a freeholder, will be considered as such in the absence of proof to the contrary. Exceptions to incorporation. S. P. Eby, D. McMullen, L. N. Spencer and H. B. Yohn for exceptions. W. U. Hensel and M. E. Musser, contra. It is denied by Henry Koons that he January 14, 1905. HASSLER, J.-Six has slandered the petitioner, as he is exceptions have been filed to these pro |