The Columbian. [volume] (Bloomsburg, Pa.) 1866-1910, 1871-02-24
Court PrOccedings..2d Week.
,rgaI f,r tha rnt,, n, hiap

FEBRUARY 10, 1871.
Court met for the second week of
February term, 1871. The Hon. WIN.
ELwELL, and Associates, IRAN DERR
and ISAAC s. MONROE, Esqrs., on the
bench.
NJ. G. Woodward and Elijah Shut
were appointed tipstaves. ID. w. Mel
lick, Thomas O'Connor, Jacob Snyder
and John Arlley were excused from
serving as Jurors and Geo. b. Thomp-
son was fined for not appearing as Ju-
ror.
Andrew Obasser VS.. Jesse d. Rice.
On motion of G. B. BRoCKwAY, the
death of the plaintiff suggested and
Rhinehard Berger, his executor, sub.
stituted.
w. A. Case VS.. the township of Bloom.
On motion of Mr.. HOWELL, Moses
Coflman, defendant In the suit be
stricken from the record, and record be
amended to read w. A. Case vs. town
ship of Bloom.
Francis Lechner, Melchiah Miller's
administrator VS.. Elias Gigger. The
Jury returned verdict in favor of the
defendant.
On the trial of this cause the plain.
tilf was offered as witness, and was
objected to on the ground of interest,
he being the husband of daughter of
the deceased
by THE COURT.
The act of 1869 allowing interested
parties to be witnesses does not apply
| to actions by or against executors, ad.
ministrators or guardians. The defend
| ant, here could not be witness to tes-
| tify to any matter occurring before the
death of Miller. To permit this, would
be to give an advantage to the surviy-
| ing party, and to permit those who are
entitled to the decedent's estate to be
witnesses, while his mouth Is closed,
would be to give them an unfair advan-
tage. The parties must stand upon an
equllity, both or neither should be per-
mitted to be sworn. To admit the one
and exclude the other, would be contra.
ry to the spirit and meaning of the act
Of Assembly. The witness is rejected.
Petition for incorporation of the Sus
quehanna Cattle Insurance Company of
Espy: Charter granted.
FEBRUARY 14TH.
Columbia county VS.. Gilbert II. Fow,
Ter. This was case submitted to the
Court for decision. The Court delivered
the following opinion, to wit:
BY the act of 22d April 1916, Purdon' IS
Digest 95l pl 125, annuities, over two
h,,t, l,ll linh IN Nc
seSsment and taxation, and all property
real or personal, mot taxed under eX-
isting laws) held, owned, used or invest.
ed by any person, in trust, for the use,
benefit and advantage of any other per.
| lis also made liable to a tax of three
mills upon every dollar of the valuation
thereof.
If the bequest for the benefit of Isaac
Fowler is an annuity within the mean.
ing of this act, being under two hundred
dollars, then it is not taxable.
An annuity is defined to be yearly
"payment of a certain sum of money
"granted to another in fee, for life OF
4" for years, charging the person of the
"grantor only. Co. Lift, 144, 6, VIM
"Exrs. 722, Blk. Com. 40"
This bequest is not of certain sun
neither is it charge upon the person o
the grantor, nor upon any devise under
the will of the testator. In both thest
essentials it fails to come within the
definition of an annuity. In the frs
place, the fund itself, out of which OF
from the interest of which the yearly
uncertain and could not be ascertainet
until the estate was settled; and in the
next place, the legatee was entitled no
to a certain amount nor to the interes
on certain sum, but to all that nigh
be received from the investment of The
share of the estate bequeathed to the
executors In trust for the son. The in
terest, whatever it might amount to
was given to the son for life, and tht
principal was given over at his death
This principal amounted to 81, 500, which
at 6 per cent. interest produced les
sum than 5000, but invested in $40 U
s. bonds it amounts to more than tina
sum. 1t is true that when testato
directs the interest upon certain sun
to be paid annually to legatee, it is t.
be understood that the interest at tn
legal rate is to be paid. But when
fund, as in this case, is placed in tn
hands of a trustee who is TO pay the in
J terest to one person for life, and tn
principal over at his death, all of tn
III
person entitled to the interest.
In these respects the case is material
: ly different from that of Berks count
9 as. Jones 8, II. Ala. There the sum Civ
! en- was fixed, to wit: the interest o.
; $4,000 annually. BY accepting the dc
! wise of the land, the devisee becam
. liable to pay the legacy or annuity
. The person to whom the annuity wa
. given had no interest in the land nc
9 any other fund which produced Interest
2 under all circumstances he was to re
. ceive his Sl20 annually, no more and II
9 less. Now, in all respects the gift
) Isaac Fowler by the will of his father
2 was different from that in the case ju.
9 cited 1t is similar, in fact almos
. identical, with the bequest in Spangle
3 W.. York county, Harris 322. In whic
: it is clearly shown in the opinion deli,
Il cred by Bell j. that when testator d
/; rects a portion of his estate to be veste
in fund, the interest of which is to !
9 paid to u legatee thereof for life, an
q the fund at death to be distribute
y among his children, that the fund
y taxable for State and County purpose
IS 1t was there held that by beque
9 such as this technical trust is create
g strictly within the cOgnizance of coul
VI anu W iioy pO ShAOANN,
) ) on the application of the cestui que tru
= under our statutes. Were the fund
'3 danger from the misconduct of ii
n. trustee or the apprehended failure
N the security, our courts would interfel
W at the instance of the ceSt,H que hnS
y and should the principal sum be even
ually lost without default of the exec
D. tor, who for this purpose Is truste
(Whcatley VS.. Badger, Barr 459)
would not be liable to make good IL
amount.
An annuity depends upon no CONT
II gencies-it Is payable at all events OF
o of the estate Of the grantor. But he
ID the fund passes out of the estate
Isaac for life and to his heirs at h
=, death.
" The will upon this subject is as ft
81 lows: 81 leave in the hands of n
a. AZ executors for the use of my son Isa
SO " Fowler one equal share of my esta
'a9 "to be put in safe hands by my exec
liss Z" tors, he the said Isaac Fowler recei
I52 sing the yearly interest for the suppu
20 "of himself during life. and the print
~ | 4 ,,oI 10 hr annnIlxy IiyiIaI anlpnn i