Commonwealth of Pennsylvania

<p>Appeal, No. 168, Jan. T., 1895, by plaintiff, from judgment of C. P. Berks Co., Dee. T., 1893, No. 31, for defendant non obstante veredicto.</p> <p>Assumpsit for wages.</p> <p>The facts appear by the opinion of the court below, Eni>lich, J., which was as follows :</p> <p>The peculiar importance of this case consists in the fact that there are about a hundred others pending which will be controlled by the principles decisive of this. At the conclusion of the testimony upon the trial, there being no facts whatever in dispute, a verdict was, by agreement of counsel, directed for plaintiff subject to the opinion of the court upon the questions of law raised by defendant’s points, which were reserved. It may be that some of these points were not technically such as to warrant their reservation, had their form been objected to: see Heany v. Schwartz, 155 Pa. 154. The point, however, alleging that “ there is no evidence in the case showing any liability on the part of the defendant to the plaintiff” was sufficient, under Chandler v. Ins. Co., 88 Pa. 223, and Koons v. Telegraph Co., 102 Pa. 164; and fairly raises every question involved. I confess that I have labored to find some way in which to sustain the verdict consistently with recognized legal principles— appreciating as I do the unfortunate situation, at this time, of the mechanics and workmen who are kept out of the wages of their toil. But I cannot get away from the objection that their rights cannot be worked out in this form of action, whatever remedy there may be presently or hereafter available to them.</p> <p>The facts of the case are as follows: Under authority conferred upon the governor by the act of June 22, 1891, P. L. 379, a commission was appointed to select a site and build an asylum for the accommodation of the chronic insane of the state, the sum of f500,000 being put at the disposal of said commission for the purpose by section 6 of that enactment. A site in the neighborhood of Wernersville, this

<p>Appeal, No. 318, Oct. T., 1891, by J. M. Chadwick, guardian, from decree of O. C. Allegheny Co., Dec. T., 1890, dismissing exceptions to adjudication.</p> <p>On December 1, 1890, the third partial account of E. H. Myers and John R. Baum, executors of the will of B. H. Landwehr, deceased, showing a balance of 125,740.21, for distribution, was confirmed nisi. The confirmation having been made absolute, the account was called for audit on December 18,1890.</p> <p>At the audit, it was shown that the testator died on December 28, 1880, leaving a will dated November 18, 1878, duly admitted to probate. Said will, after providing for the payment of testator’s debts, etc., and for certain pecuniary legacies, proceeded:</p> <p>“ Fourth. All the rest, residue and remainder of my estate, real, personal, and mixed, I give, bequeath and devise as follows, to wit: To John R. Baum and Ernest Henry Myers, my sons-in-law, my executors hereinafter named, who are to sell the same as soon after my decease as they, my executors, shall think fit and expedient, for such price or prices and upon such terms as they may deem best, and in such quantities as may suit purchasers, but in such manner as may be approved of by the judgment of said executors; and of the net proceeds thereof pay one fourth thereof to the children of my son, B. Henry Landwehr, or the survivors of them; one other fourth part thereof pay to my daughter, Amelia Myers, wife of Ernest Plenry Myers; and the remaining half part thereof pay to my daughter Sophia, the wife of said John R. Baum.</p> <p>“ And to effect the foregoing purposes I do give unto my said executors full possession and authority to sell and convey the said real estate, and to execute conveyances thereof in fee-simple or otherwise, without the intervention of any court for that purpose, to the purchaser or purchasers.'”</p> <p>It was shown, also, that at the time of the death of the testator, his son, B. Henry Landwehr, had seven children. Afterward, an