Caldwell's Estate.

Briefly, a notice of the granting of letters testamentary or of administration should be immediately thereafter published.

'The account should not be filed with the register of wills until the period of six months has expired after the granting of letters.

From J. M. Force, Erie, Pa.

Commonwealth v. Lowry.

Alderman Jurisdiction-Suit on forfeited recognizance.

An alderman has jurisdiction in a suit on a forfeited recognizance bond in the sum of $300.

Rule to strike off compulsory non-suit. C. P. Northampton Co., July T., 1921, No. 44.

Howard V. Fisher, for plaintiff; William H. Schneller, for defendant.

MCKEEN, J., Jan. 9, 1922.-This is a rule to show cause why the compulsory non-suit entered in the above case should not be taken off. It appears that the use-plaintiff made a criminal information against Frank E. Heid before an alderman of the City of Bethlehem, and Charles Lowry, the defendant, became his bail for appearance at a hearing. The bail was forfeited by reason of the non-appearance of the defendant in the criminal charge before the alderman at the time fixed for the hearing. The prosecutor commenced suit in the name of the Commonwealth, to his own use, before the alderman to recover upon the forfeited recognizance. The use-plaintiff claimed to have an interest in the recognizance by virtue of damages sustained through the alleged criminal act of the defendant in the criminal proceeding. The reason entertained by the court in granting the non-suit was based upon improper designation of the plaintiff in the suit, no application having been made for amendment. The plaintiff, however, should be given an opportunity to amend. Under the decision in Com. v. Balsamo, 72 Pa. Superior Ct. 182, where it was held in a similar action: "The objection to the designation of the plaintiff is not material, as the court below, as well as this court, may allow an amendment to meet the facts of the case in the furtherance of justice so that the case will be heard and decided on its just merits."

The defendant contends, however, that the alderman had no jurisdiction, the amount involved being over $300, and that, therefore, this court had no jurisdiction. The recognizance upon which the defendant was surety was given in the sum of $300, and the defendant has urged the court that interest was due upon this amount from the date of forfeiture, which would oust the jurisdiction of the alderman. The liability of the recognizors is for a certain specified sum, which they agreed should be levied of their lands and tenements, goods and chattels in the event the defendant should not appear to answer such charges as may be preferred against him. The amount of the judgment in a suit against them would be limited to the full amount mentioned in the recognizance, and interest thereon can only be claimed from date of judgment. In Com. v. Lutz, 15 Lanc. Law Rev. 113, where the amount of the recognizance was the same as in the case at bar, it was held: "A magistrate has jurisdiction in a suit on a forfeited recognizance of bail for appearance before a magistrate."

And now, Jan. 9, 1922, rule to strike off compulsory non-suit made absolute and leave is granted plaintiff to amend.

From Henry D. Maxwell, Easton, Pa.

McCafferty's Estate.

Wills-Devise-Perpetuities-Remainders-Equitable estate. - Trust for

thirty years-Intent of testator.

Testator left his residuary estate to his executors and trustees to divide the net income and profits quarterly between his widow and children, or issue of deceased children. At the expiration of thirty years the executors and trustees were directed to sell the real estate and divide the entire property of the testator then in their hands "equally among all my children and my said wife, if she be then living, and in the event of the death of any of my children before the expiration of the said thirty years, then the issue of any deceased child or children to take what his, her or their parent would have taken if so living at the expiration of said thirty years:" Held, 1. Since neither the persons to take nor the quantum of their interests could be ascertained until the end of thirty years, and since the possibility existed that the only persons to take would not come into existence until after a life or lives in being and twenty-one years, the limitation over was clearly within the rule against perpetuities and void. 2. As the only possible purpose imputable to the testator in creating the equitable estate was to hold his estate together beyond the limit allowed by law, the transgression of the rule against perpetuities as to the remainder made the entire testamentary disposition void. 3. The auditing judge properly directed the distribution of the entire estate among the parties entitled thereto under the intestate laws.

Exceptions to adjudication. O. C. Phila. Co., July T., 1905, No. 295.

Robert Dechert, for exceptant; Joseph L. McAleer, contra.

THOMPSON, J., June 15, 1922.-The decedent died May 1, 1904, leaving a will probated July 8, 1904. By his will he disposed of his residuary estate as follows:

"Item. I give, devise and bequeath all the rest, residue and remainder of my estate of which I may die seized to my Executors and Trustees hereinafter named, in Trust to hold the same and to collect, receive and have the rents, issues and profits thereof, and after the payment of necessary taxes, claims, repairs, &c., to divide the net income and profits thereof in quarterly payments in equal shares and proportions among all of my said children and my said wife; and in the event of the death of any of my said children, then the issue of any deceased child or children to take what their parents would have taken if living.

"Item. At the expiration of thirty years from the date of my decease, I order and direct my Executors and Trustees or their successors to sell all of my real estate at public or private sale for the best price or prices that can be obtained for the same and to make all necessary deeds therefor, free, clear and discharged from any and all trust and without any liability on the part of the purchaser or purchasers thereof to see to the proper application of the purchase money, and the proceeds arising therefrom as well as any other sum or sums of money remaining in their hands, possession or control belonging to my estate, I direct shall be apportioned and divided equally among all my children and my said wife, if she be then living, and in the event of the death of any of my children before the expiration of the said thirty years, then the issue of any deceased child or children to take what his, her or their parent would have taken if so living at the expiration of said thirty years."

The exceptions filed are on behalf of a minor son of one of testator's living daughters, on the ground of a possible interest in testator's residuary estate, which testator gave to trustees to pay the income to be derived therefrom to his widow and all his children, and in the event of the death of any of his said children, the issue of any deceased child or children to take what their

Commonwealth v. Eitler.

It seems that the United States courts, while recognizing the rule as to evidence and procedure above referred to, tend strongly to preserve the constitutional safeguards: Gouled v. United States, 255 U. S. 298; Weeks v. United States, 232 U. S. 383; Adams v. New York, 192 U. S. 585; Boyd v. United States, 116 U. S. 616; United States v. Rykowski, 267 Fed. Repr. 866; Youngblood v. United States, 266 Fed. Repr. 795; United States v. Bush, 269 Fed. Repr. 455; United States v. Kraus, 270 Fed. Repr. 578; United States v. Slusser, 270 Fed. Repr. 818; United States v. Porazzo Bros., 272 Fed. Repr. 276; United States v. Kelih, 272 Fed. Repr. 484; United States v. O'Dowd, 273 Fed. Repr. 600; United States v. Burnside, 273 Fed. Repr. 603; United States v. Lydecker, 275 Fed. Repr. 976.

Some of the state courts, in no uncertain terms, follow the rule of the Federal courts and hold that the evidence obtained without a search warrant, or upon an illegal search warrant, is inadmissible: Hughes v. State, 238 S. W. Repr. 588; Hammock v. State (Ga.), 58 S. E. Repr. 66; Rusher v. State, 94 Ga. 363, 21 S. E. Repr. 593; People v. Margelis (Mich.), 186 N. W. Repr. 488; People v. De La Mater (Mich.), 182 N. W. Repr. 57; People v. Mayhew (Mich.), 182 N. W. Repr. 676; State v. Gibbons (Wash.), 203 Pac. Repr. 390; State v. Sheridan (Iowa), 96 N. W. Repr. 730; Blacksburg v. Beam (So. Car.), 88 S. E. Repr. 441, L. R. A. (1916 E.), 714; Youman v. Com., 189 Ky. 152, 224 S. W. Repr. 860; Atz v. Andrews (Fla.), decided June 30, 1922, not yet reported.

In the last cited case, the court, after referring to a number of cases, said: "From these the inference may be drawn that constitutional guarantees are more carefully guarded and protected in the Federal than in the state courts. "If such a distinction exists, it may account for the growing tendency to broaden and extend the Federal power.

"Whatever other state courts may do, the Supreme Court of Florida will guard and protect the constitutional rights, privileges and immunities of the people as sacredly as the Federal courts.

"Why a court should encourage its officers illegally to acquire evidence to be used against a person on trial for having illegally acquired some commodity is a problem in morals that is a bit confusing to one not a zealot or a fanatic.

"For one to acquire illegally or illegally to possess intoxicating liquors is a crime, but it is a crime that generally affects a few persons in a restricted locality. To permit an officer of the state to acquire evidence illegally and in violation of sacred constitutional guarantees, and to use the illegally acquired evidence in the prosecution of the person who illegally acquired the intoxicants, strikes at the very foundation of the administration of justice, and where such practices prevail makes law enforcement a mockery.

"In this era, when earnest thinking men and women are ardently trying to arouse public sentiment on the subject of strict law enforcement, it would seem most meet and proper for the courts to set the example and not sanction law-breaking and constitutional violation in order to obtain testimony against another law-breaker. Better the mob and the Ku-Klux than a conviction obtained in a temple of justice by testimony illegally acquired by agents of the Government and officers of the law."

In Rusher v. State, 94 Ga. 363, that great jurist, Chief Justice Bleckely, said: "The law ought to hold out no encouragement to violent and lawless men to commit crime for the sake of detecting a previous crime and bringing the offender to punishment. The law should never suffer itself to become an enemy or antagonist to its own reign. Multiplication of crimes as a remedy

Commonwealth v. Eitler.

for crime would be a very absurd and disastrous public policy, and we think courts should not lend themselves to the advancement of any such policy, unless they are compelled to do so by statute or some authority equally obligatory."

In Hughes v. State, 238 S. W. Repr. 588, the court said (page 594): "The state, having, through its executive representatives, produced the evidence of a violation of the law by one of its citizens by means prohibited by the Constitution, cannot be permitted, through its judicial tribunal, to utilize the wrong thus committed against the citizen to punish the citizen for his wrong; for it was only by violating his constitutionally protected rights that his wrong has been discovered. It is no answer to say that it matters not how a citizen's sins have been found out. Security from unlawful search is the right guaranteed to the citizen, even for the discovery of the citizen's sins. This right we must protect, unless we may with impunity disregard our oath to support and enforce the Constitution."

Notwithstanding these vigorous exceptions in the later cases, the majority of the state courts have followed the leading case of Com. v. Dana, 2 Met. (Mass.) 329, decided in 1841, in which it is said that the court can take no notice as to how the evidence was obtained, whether lawfully or unlawfully, nor will they form a collateral issue to determine that question: State v. Pomeroy (Mo.), 32 S. W. Repr. 1002; State v. Royce (Wash.), 80 Pac. Repr. 268; Gindrat v. People, 138 Ill. 103, 27 N. E. Repr. 1085; State v. O'Connor (Kan.), 43 Pac. Repr. 859; State v. Griswold (Conn.), 34 Atl. Repr. 1046; Starchman v. State (Ark.), 36 S. W. Repr. 940; People v. Wicka, 192 New York Supp. 633; Com. v. Brelsford, 161 Mass. 61; Com. v. Tibbetts, 157 Mass. 519; Com. v. Hurley, 158 Mass. 159. To these citations many others might be added.

In some of the cases a distinction is made between the seizure of papers which are not the basis of the charge, but merely of an evidential character, and seizure of property kept for an illegal use: State v. Krinski (Vt.), 62 Atl. Repr. 37. In some the distinction is made between evidence illegally obtained and that obtained by the unlawful conduct of police officers: Hughes v. State, 238 S. W. Repr. 588, 590; Cohn v. State (Tenn.), 109 S. W. Repr. 1149; Imboden v. People (Col.), 90 Pac. Repr. 608. In some a further distinction is made between lawful and unlawful property: State v. O'Connor, 43 Pac. Repr. 859.

It is also held that where the evidence is obtained by private individuals or by state officers, where the jurisdiction is in the United States court, the constitutional guarantee does not apply. It only applies against the governmental agency which is prosecuting: United States v. O'Dowd, 273 Fed. Repr. 600; United States v. Burnside, 273 Fed. Repr. 603. In all of these cases the provision against unreasonable search and seizure, and the provision protecting an accused against being compelled to give evidence against himself, have been coupled and treated together. In some cases, however, it is held that where the thing seized is offered in evidence, it is not the defendant who gives the evidence against himself, and, therefore, that constitutional guarantee does not apply: State v. Flynn, 36 N. H. 64; Shields v. State (Ala.), 16 So. Repr. 85.

In our own state it has also been held that the "court will not suspend the conduct of a trial to enter into a collateral inquiry as to the means through which the evidence, otherwise competent, was obtained:" Com. v. Vigliotti, 75 Pa. Superior Ct. 366, 378; Com. v. Shultz, 1 D. & C. 742.

The case of Com. v. Vigliotti was affirmed by the Supreme Court of Penn

McCafferty's Estate.

parents would have taken if living; and at the expiration of thirty years from his death to sell all his real estate; and he directed that the proceeds arising therefrom, as well as any other money in their hands, "be apportioned and divided equally among all my children and my said wife, if she be then living, and in the event of the death of any of my children before the expiration of the said thirty years, then the issue of any deceased child or children to take what his, her or their parent would have taken if so living at the expiration of said thirty years."

The auditing judge held that, as to the interests in remainder, the will transgressed the rule against perpetuities; and that, as the creation of the equitable estates to the wife and children was merely a scheme to keep the estate together beyond the period allowed by the rule, the entire residuary provision was void, and distributed the estate among the parties entitled thereto under the intestate laws.

The exceptions proceed on two grounds: First, that the interests in remainder vested at the time of testator's death, and, therefore, do not come within the rule; and, secondly, that if the remainders are void, the trust must continue to protect the equitable estates which do not infringe the rule.

It would appear that, although the gifts in remainder are implied only from the direction that at the termination of the trust the estate be "apportioned and divided," this in itself alone would not prevent the vesting of the remainder at the death of testator (Marshall's Estate, 262 Pa. 145; Groninger's Estate, 268 Pa. 184, and cases therein cited), but that the remainder is to be considered vested unless a different intention appears from the will, "plainly, manifestly and indisputably:" McCauley's Estate, 257 Pa. 377.

On examining the will we find that the parties who are to take at the expiration of the trust, thirty years after the death of testator, are (1) the widow, if then living; (2) all the children then living, and inferentially-for there is no divestiture of the share of any such child-all the children then dead, without leaving issue; and (3) the issue of any deceased child or children.

Under this language, does it not plainly, manifestly and indisputably appear that what the testator had in mind was that the facts existing at the time of distribution should determine who among his beneficiaries should take? Where the intention of a testator clearly appears, it must be given effect without regard to any rule as to vested and contingent remainders: Mulliken v. Earnshaw, 209 Pa. 226; Rosengarten v. Ashton, 228 Pa. 389. Neither the persons to take nor the quantum of their interests could be ascertained until the end of thirty years. And the possibility existed that the only persons to take would not come into existence until after a life or lives in being and twenty-one years.

"No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest:" Gray on Perpetuities, § 201. "If an absolute term is taken, and no anterior term for a life in being is referred to, such absolute term cannot be longer than twentyone years:" Perry on Trusts, 349. "It is a conceded principle that the future interest must vest within a life or lives in being and twenty-one years. It is not sufficient that it may vest. It must vest within that time or the gift is void; void in its creation. Its validity is to be tested by possible and not by actual events:" Coggins's Appeal, 124 Pa. 10; Adams's Estate, 23 Dist. R. 271. As distribution of corpus cannot, under the terms of the will, be made until the end of thirty years, and as the persons who may then take may not have come into existence within a life or lives in being at the death of testator