Brief for the Respondents in Opposition — Whitmore v. Pennsylvania Society for Prevention of Cruelty to Animals

IN THE Seem

Supreme Court of the United-States

OcroBeR TERM, 1943.

No. 256.

MARY S. WHITMORE, ROBERT SIMPSON, LOUISE

FILLEBROWN MURTAUGH AND SUE M. STROUS,

EXECUTRICES OF THE ESTATE OF HENRY ROSE,

DECEASED; EDWARD L. McKENZIE, PEOPLES

PITTSBURGH TRUST COMPANY, EXECUTOR OF

THE ESTATE OF C. LOUIS McKENZIE, DECEASED ;

FAYETTE A. McKENZIE, JOHN SIMPSON AND LILLY

S. CULVER, THE NEXT-OF-KIN OF MARION S.

SIEMENS, DECEASED;

Petitioners,

vs.

THE PENNSYLVANIA SOCIETY FOR THE PREVENTION

OF CRUELTY TO ANIMALS, a Corporation,

Respondent.

BRIEF FOR RESPONDENT IN OPPOSITIGN TO PETITION

FOR CERTIORARI TO THE SUPREME COURT

OF PENNSYLVANIA.

EVERETT H. BROWN, JR.,

SHIELDS, CLARK, BROWN FREDERIC L. CLARK,

& McCOWN, 1900 Grrarp Trust BUILDING,

Of Counsel. PHILADELPHIA, Pa.

Attorneys for the Respondent.

Auten, Lang & Scott, Prs., PHILADELPHIA,

INDEX. :

PAGE 4

OPINIONS OF THE COURT BELOW.......... 1 Ai

yen ee re 2

STATEMENT OF THE CASE................. 3

NED id ta eek wa ard h ee oF CR hoe keke aks 7

IS 500 aes os aialaw asd wee oa FORK oes 7

1. The Proceedings in the Orphans’ Court of

PRD i 05 5.060 hase neni lnacies 8 :

(a) The Executors’ First Account..... 9 :

(b) The Executors’ Second Account... 9 e

(c) The Assertion of the Claim by the

Pe Resco cs Res oe ek 9

(d) The Hearing Held on the Petition

of the Next of Kin............. 10

(e) The Claims of the Petitioners and

of the Respondent at the Hear-

ing and the Decision of the Court

IR iit av ecu s iniw enue us 10 ;

2. The Petitioners had full Opportunity to be ;

heard in the Orphans’ Court............ 17 ;

3. The Orphans’ Court and the Supreme Court |

Correctly Construed the Will........... 20

4. No Federal Question is Presented.......... 21

5. Errors in Petitioners’ Summary Statement

_¢ ,_ PE re rere Sorts rari n ca Sap 22

© SPOOR. v bc os can sca kes CORRENTE 26

ii

TABLE OF CASES.

Ammon’s Estate, 72 Pitts. (Pa.) L. J. 872.......... "Dp

American Railway Express v. Kentucky, 273 U.S.

eae kak Cas Shs veka k soe Hs 22

American Surety Co. v. Baldwin, 287 U.S. 156..... 27

Arrowsmith v. Harmoning, 118 U. 8. 194........... 22

Bilby v. Stewart, 246 U.S. 255... 2... cece cence 26

ee Se : ear ee 21

Central Land Company »v. Laidley, 159 U. 8. 103... 22

Coleman’s Estate, 167 Cal. 212 (138 Pac. 992)..... 12

Darlington’s Estate, 289 Pa. 297.................. 12

Gilman v. Sheets, 78 Iowa 499 (43 N. W. 299)...... 20

ee Bo i eB Se re 12

Iowa Central Railway Company v. Iowa, 160 U. S.

es ee ah wa ae koa e <3 a 0K 22

Kimmel v. Wagner, 1 Walker (Pa.) 191............ 21

Lockhart’s Estate, 21 Pa. D. & C. 598............. 12

Massachusetts Society for the Prevention of Cruelty

to Animals v. City of Boston, 142 Mass. 24 (6

a AER ae STE ROP ER Ny SOE Oh SR 12

pg BO ey eee eee 12

Minns »v. Billing, 183 Mass. 126 (66 N. E. 593, 5

OND as Mp Sy 1’ Rea Bra eee ae ree 12

Peewee © Bees, DA PR. TOF... wos ee ce bees 21

ix v. Beem, 140-0. B. B04... ww cee eens 20

Ohio Bell Telephone Co. v. Commissioner, 301 U.S.

PAGE :

Pitney v. Bugbee, 98 N. J. L. 116 (118 Atl. 780).... 12 .

poeer v. Somers, Bre FW. B. BB oi ieee es 21 ;

State Trust Company v. Pierce, 126 Maine 67 (136

ee eal tes 44 Vale Saku Wes 21

Thompson v. Nichols, 254 Fed. 973................ 18

Thompson’s Estate, 282 Pa. 30..................4. 12

Title Guarantee & Trust Company (Hamilton’s Will)

a es oo lege Gd vas we doa n wees 12

Wilson v. Standefer, 184 U.S. 399................ 18

STATUTES.

Pennsylvania Orphans’ Court Act of June 7, 1917, :

P. L. 366, Section 9 (e) and (1)................. s :

Pennsylvania Act of April 4, 1868, P. L. 655 (In- :

corporating the Respondent)................... 11 i

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Oe itt ILIA PRAIRIE ORES (TREE ABDI BEGET Sed . eae - rel . iii

Opinions of the Courts Below. 1

IN THE

Supreme Court of the United States

| OcTroBER TERM, 1943 No. 256

Mary S. Wuirmore, Rosert Simpson, Louise FILLE-

BROWN MurTAUGH AND SuE M. Srrovus, EXECUTRICES

OF THE EstaTe OF HENRY Rosk, DECEASED; EDWARD

L. McKEnzir, Peoples PirrsBuRGH TrRusT COMPANY,

EXECUTOR OF THE Estate oF ©. Louis McKENZIE,

DECEASED; Fayette A. McKENZIE, JOHN SIMPSON

AND Litty S. CULVER, THE NEXT-OF-KIN OF MARION

S. Sremens, DeceaseD; Petitioners,

VS.

THE PENNSYLVANIA SOCIETY FOR THE PREVENTION OF

CRUELTY TO ANIMALS, A CORPORATION, Respondent.

BRIEF FOR RESPONDENT IN OPPOSITION

TO PETITION FOR CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA.

OPINIONS OF THE COURTS BELOW.

The opinion of the Supreme Court of Pennsylvania

affirming the decree of the Orphans’ Court of Tioga

County is reported in 346 Pa. 610. It is dated March

22, 1943.

ee ee eae. |

2 Jurisdiction.

The adjudication and opinion of the Orphans’ Court

of Tioga County, dated March 14, 1942, is unreported.

It appears at page 33la of the record.

The opinion of the Orphans’ Court of Tioga County

on the petitioners’ motion to open the adjudication is

unreported and appears at page 365a of the record.

The opinion of the Orphans’ Court of Tioga County

on the petitioners’ exceptions to the adjudication is

unreported and appears at page 442a of the recor

The final decree of the Orphans’ Court of Tioga

County awarding distribution is dated July 13, 1942,

and appears at page 460a of the record.

The opinion of the Orphans’ Court of Tioga County

dismissing the petitioners’ petition for declaratory

judgment is dated November 15, 1941, and is reported

in 42 Penna. D. & C. Reports, page 708.

JURISDIVTION.

The opinion of the Supreme Court of Pennsylvania

was filed March 22, 1948, and the petition for rehear-

ing was filed by the petitioners March 30, 1943, and

was denied April 19, 1943.

On the application of the petitioners an order was

entered by this Court on June 23, 19438, extending

until August 18, 19438, the time within which the peti-

tion for certiorari might be filed.

Jurisdiction of this Court is claimed by the peti-

tioners under Sec. 237 of the Judicial Code as amended

by the Act of February 13, 1925 (43 Stat. 938, 28

U.S. C. 344 (b)).

Statement of the Case. 3

STATEMENT OF THE CASE.

Marion S. Siemens, a widow, died a resident of

Wellsboro, Tioga County, Pennsylvania, on October

96, 1939 (R. 331a), leaving as her next of kin certain

cousins. By her will, dated September 22, 1936 (R.

10a), and by three codicils, one undated (R. 19a), and

the others dated February 1, 1937 (R. 18a) and

October 23, 1939 (R. 20a), respectively, she appointed

Charles G. Webb, Esq., of Wellsboro, and the Girard

Trust Company of Philadelphia executors. After

making certain charitable bequests she bequeathed to

relatives and others a total of over $200,000., and then

bequeathed the residue of her estate to ‘‘the Penna.

S.P.C.A.; requesting that they give all the attention

possible to work in Tioga Co.”’

Her will was probated November 6, 1939. The

executors filed their first and partial account October

96, 1940. It was confirmed nisi November 25, 1940,

and finally December 9, 1940.

The Orphans’ Court of Tioga County appointed

Frank S. Hughes, Esq., auditor January 27, 1941.

He filed his report March 8, 1941. It was confirmed

nisi March 10, 1941, and finally March 22, 1941

(Docket entries, R. 3a).

On July 31, 1941, some of the next of kin filed in

the Orphans’ Court a petition for a declaratory judg-

ment to construe the will (R. 181a), alleging that there

is a patent ambiguity upon the face of the will in that

it fails to designate with the certainty required any

object for the residuary estate. They asked that the

LMG EGE ELBE DIE ILE RROD

Bae tr tee

SEE DAS RN LER ERLE OO OIE TD

+4 Statement of the Case.

will be declared void as to the residuary estate and

that the testatrix be declared to have died intestate

as to her residuary estate.

Answers in the nature of demurrers were filed,

raising questions of law and alleging that there was

no proper subject for a declaratory judgment, and

that the question of who was entitled to the residuary

estate was ripe for determination by the Auditing

Judge upon the audit of the executors’ account.

The Orphans’ Court filed an opinion November 15,

1941 (R. 234a), dismissing the petition for the declara-

tory judgment.

On October 25, 1941, the second and final account

of the executors was filed, which was confirmed nisi

November 24, 1941, and finally December 13, 1941.

On December 20, 1941, some of the next of kin filed

a petition asking that the Orphans’ Court fix a date

for the hearing and determination of the rights of all

persons entitled to share in the distribution of the

residuary estate (R. 243a).

The hearing was held January 29, 1942, before

Honorable Thomas A. Crichton, President Judge of

the Orphans’ Court (R. 248a).

At the hearing the respondent filed a formal claim

to the residuary estate (R. 252a), alleging that it was

the corporation named as the residuary legatee in the

will.

The respondent urged that the Court should take

judicial notice of the meaning of the abbreviation used

by the testatrix ‘‘the Penna. S.P.C.A.”’

VP ee eS ee ee eS eee

———

Statement of the Case. 5

The respondent also offered substantial testimony

and evidence as to its identity. The respondent also

urged that under the law of Pennsylvania, irrespective

of whether the respondent had established its identity

as the residuary legatee, the next of kin had no stand-

ing to claim the residuary estate as the abbreviation

S.P.C.A. clearly meant some charity, and a bequest to

a charity would not be allowed to fail for want of a

trustee.

The next of kin offered evidence to prove their rela-

tionship to the testatrix, but offered no further evi-

dence, and their counsel stated that they had no fur-

ther evidence to offer (R. 308a).

On March 14, 1942, the Orphans’ Court filed its

adjudication consisting of an opinion, findings of fact

and conclusions of law (R. 331a-352a), finding as a

fact (No. 9, R. 333a) that the decedent died testate

as to her residuary estate bequeathing it to the Penn-

sylvania Society for the Prevention of Cruelty to

Animals, the claimant there and the respondent here.

The Orphans’ Court also filed a conclusion of law

that the residuary estate should be awarded to the

Respondent (R. 352a), and on March 14, 1942, ordered

a schedule of distribution to be submitted on behalf

of the executors.

On March 17, 1942, the next of kin filed a petition

to cancel and annul the adjudication (R. 358a). It

was refused March 28, 1942 (R. 368a).

A motion by the next of kin to set aside the ad-

judication (R. 369a) was overruled March 30, 1942

(R. 370a).

6 Statement of the Case.

On March 30, 1942, the Orphans’ Court confirmed

the schedule of distribution nist, making minor cor-

rections.

On petition filed by the executors to correct certain

figures (R. 377a) an amended decree nisi was entered

April 27, 1942 (R. 393a).

On May 8 and 11, 1942, the next of kin filed excep-

tions to the adjudication (R. 395a, 397a), and on May

29, 1942, a motion to open the adjudication and addi-

tional exceptions (R. 439a).

The additional exceptions being allowed (R. 441a),

the Orphans’ Court on July 18, 1942, filed an opinion

modifying certain findings, immaterial to the matter

here involved (R. 442a), and entered a final decree

confirming the adjudication and schedule of distribu-

tion as thus modified (R. 460a).

The next of kin appealed to the Supreme Court of

Pennsylvania which affirmed the decree of the Or-

phans’ Court.

The decedent, Marion 8. Siemens, had executed a

deed of trust, dated November 30, 1936, transferring

to trustees certain securities in trust to pay the net

income to her for life, and upon her death to pay over

and distribute the principal to such persons as she by

her last will and testament should direct, limit and

appoint (R. 18a).

After her death the surviving trustee and the execu-

tors of a deceased trustee filed their account in the

Orphans’ Court of Philadelphia County, and that

Court on December 6, 1939, awarded the balance to

Mrs. Siemens’ executors, to be segregated from her

re

Argument. 7

individual estate and accounted for by them as a

separate fund. The Orphans’ Court held that this

trust fund passed under her will as a part of her

estate. This holding was made in an opinion filed on

motion of the next of kin to open the adjudication

(R. 367a).

ARGUMENT.

SUMMARY.

1. The Proceedings in the Orphans’ Court of Tioga

County.

‘((a) Tue Executors’ First Account.

(b) THE Executors’ SECOND ACCOUNT.

(c) THE ASSERTION OF THE CLAIM BY THE NEXT

oF KIN.

(d) Tue Heartnc HELD ON THE PETITION OF

THE Next oF KIN.

(e) THE CLAIMS OF THE PETITIONERS AND OF

THE RESPONDENT AT THE HEARING AND THE DECI-

SION OF THE Court THEREON.

2. The Petitioners Had Full Opportunity to be

Heard in the Orphans’ Court.

3. The Orphans’ Court and the Supreme Court of

Pennsylvania Correctly Construed the Will.

4. No Federal Question is Presented.

5. Errors in Petitioners’ Summary Statement of

Facts.

6. Conclusion.

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ESL SI NO EL EN IE IES NE ED He RIN

eserves OPTS DRT IA

8 Argument.

1. The Proceedings in the Orphans’ Court of Tioga

County.

In Pennsylvania jurisdiction over the estates of

decedents and the accounts of executors is in the Or-

phans’ Court. Act of June 7, 1917, Pamphlet Laws,

366, Section 9 (e) and (1). The Act provides that

the jurisdiction of the Orphans’ Court shall extend

to and embrace:

*‘(e) The distribution of the assets and sur-

plusage of the estates of decedents among credi-

tors and others interested; * * *

(1) All cases within their respective counties,

wherein executors, administrators, guardians, or

trustees may be possessed of, or are in any way

accountable for, any real or personal estate of the

decedent ;”’

In the larger counties there are separate Orphans’

Courts. In the smaller counties the Orphans’ Court

is held by the judge or judges of the Court of Common

Pleas.

In Tioga County there is only one judge and he

holds the Orphans’ Court.

Accounts of executors are filed with the Register of

Wills and notice of the filing given by advertisement.

The notice states that the accounts will be presented

to the Orphans’ Court for confirmation at a certain

time and place.

It is the practice in Tioga County, there being. no

separate Orphans’ Court, for the Court to confirm all

accounts if no exceptions are filed, and if desirable

then to appoint an auditor to make distribution.

Argument. 9

(a) THe Executors’ First Account.

The docket entries (R. 2a) show that the executors’

first and partial account, filed October 26, 1940, was

referred to an auditor on December 14, 1940, the order

appearing in the record at page 58a.

The auditor held extensive hearings, reported that

partial distribution should be made, recommended the

payment of the pecuniary legacies and certain claims,

and ordered that the balance remain in the hands of

the executors (R. 169a).

The docket entries (R. 3a) show that on July 31,

1941, the next of kin, the petitioners here, filed their

petition for a declaratory judgment (R. 18la), which

was dismissed (R. 242a) on the ground that the ques-

tions raised should be decided in the usual manner as

provided by statute upon the audit of the final ac-

count (R. 242a).

(b) THe Executors’ Seconp AccouUNT.

In the following November (R. 4a) the executors

filed their second and final account which was con-

firmed.

(c) THE ASSERTION OF THE CLAIM BY THE NEXT OF

KIN.

On December 20, 1941 (R. 4a), the petitioners filed

their petition for a hearing (R. 248a) asking the Or-

phans’ Court to determine the rights of all persons

entitled to share in the distribution of the residuary

estate.

REET RNY ERIS AEN NPM EY PUNT FEELIN PEN OE TS OIE

10 Argument.

(d) THe Heartna HELD ON THE PETITION OF THE

Next oF KIN.

Pursuant to this petition the Court on December 20,

1941 (R. 246a) entered a decree fixing the hearing

for January 22, 1942, and ordering publication of the

notice. The time for the hearing was changed to

January 29, 1942 (R. 5a).

The proceedings before the auditor with reference

to the first and partial account of the executors having

to do only with questions relating to the pecuniary

legacies and miscellaneous questions not involving the

distribution of the residuary estate, all questions con-

cerning the disposition of the residuary estate were

before the Court at the hearing on January 29.

Counsel appeared for the next of kin and testimony

was taken to establish their relationship (R. 249a).

(e) THE CLAIMS OF PETITIONERS AND OF THE RE-

SPONDENT AT THE HEARING AND THE DECISION OF THE

Court THEREON.

The next of kin of the decedent, the petitioners here,

claimed in the Orphans’ Court that the residuary

clause of the will contained a patent ambiguity. This

claim of necessity amounted to an assertion that the

abbreviation ‘‘the Penna. S.P.C.A.’’ is meaningless

and that as it is impossible to ascertain what it does

mean, the Court should declare the residuary bequest

void for uncertainty, find that the decedent died intes-

tate as to her residuary estate, and that it descended

to her next of kin under the intestate laws.

aa 20 SAN CR EAS

Argument. 11

They offered no evidence as to the meaning of the

residuary clause of the will or to rebut the evidence

offered by the respondent, although they had full

opportunity to do so.

The respondent filed a formal claim to the residuary

estate setting forth that it was incorporated by the

Act of April 4, 1868, Pamphlet Laws, 655, under the

name of the Pennsylvania Society for the Prevention

of Cruelty to Animals, and that it is well and widely

known by the abbreviation ‘‘Penna. S.P.C.A.’”’ At

the hearing the respondent presented three proposi-

tions:

1. That the Court should take judicial notice of

the meaning of the abbreviation.

2. That the proof submitted established the

identity of the respondent as the residuary legatee.

3. That even if judicial notice of the meaning

of the abbreviation were not taken, and even if

the proof as to the respondent’s identity were not

conclusive, nevertheless the next of kin had no

standing to claim the residuary estate once it was

admitted that the abbreviation ‘‘S.P.C.A.’’ meant

some society for the prevention of cruelty to

animals.

The third proposition was based on the Pennsyl-

vania law that a gift to charity will not be permitted

to fail for want of a trustee and on the fact that the

courts of Massachusetts, California, New York

Res NEUEN Oa RSPR ORO:

12 Argument.

and New Jersey, and the lower courts of Pennsylvania

had held that a gift to a society for the care of

animals is a charity. That such a society is a charity:

Massachusetts Society for the Prevention of

Cruelty to Animals v. City of Boston, 142

Mass. 24 (6 N. E. 840);

Minns v. Billing, 183 Mass. 126 (66 N. E. 593,

5 DL. R. A. N. S. 686);

Coleman’s Estate, 167 Cal. 212 (138 Pac. 992);

Title Guarantee & Trust Company (Hamilton’s

Will), 165 N. Y. Supp. 71;

Pitney v. Bugbee, 98 N. J. L. 116 (118 Atl.

780);

Lockhart’s Estate, 21 Pa. D. & C. 598;

Ammon’s Estate, 72 Pitts. (Pa.) L. J. 872.

That a charity can never fail either because it is

indefinite or for want of a trustee:

Hunter’s Estate, 279 Pa. 349;

Thompson’s Estate, 282 Pa. 30;

Darlington’s Estate, 289 Pa. 297;

Mears’s Estate, 299 Pa. 217.

While not devoting much of its opinion to this third

proposition the Orphans’ Court agreed with it.

At the hearing in the Orphans’ Court the respondent

offered in evidence various encyclopedias, dictionaries

and reference works, in all of which the abbreviation

“*S.P.C.A.’’ was defined as meaning Society for the

Prevention of Cruelty to Animals (R. 294a).

Argument. 13

They were offered not only to inform the mind of

the Court and to assist the Court in taking judicial

notice of the abbreviation, but as affirmative proof of

the respondent’s identity.

The respondent also offered other proof of its

identity, being photographs, signs, badges and news-

paper clippings, showing that it was known by the

abbreviation ‘Penna. S.P.C.A.” (R. 267a-293a).

These were as follows:

Exhibit 1. Photograph of a lamp-post in front of

the respondent’s former building, marked

‘“§.P.C.A.”’

Identified R. 270a. Offered R. 274a.

Admitted R. 278a, 291a.

Photograph of front of respondent’s

present headquarters in 1917, marked

‘‘The Penna. 8.P.C.A.”’

Identified R. 27la. Offered R. 274a.

Admitted R. 278a, 291a.

Exhibit 3. Photograph of respondent’s water truck,

marked ‘‘The Penna. 8.P.C.A.”’

Identified R. 27la. Offered R. 274a.

Admitted R. 278a, 291a.

Exhibit 4. Photograph of respondent’s water truck,

marked ‘The Penna. Society P.C.A.”’

Identified R. 27la. Offered R. 274a.

Admitted R. 278a, 291a.

Exhibit 5. Photograph of respondent’s horsedrawn

truck, marked ‘‘The Penna. Society

PLA.”

Identified R. 27la. Offered R. 274a.

Admitted R. 278a, 291a.

Exhibit

bo

£

14

Exhibit 6.

Exhibit 7.

Exhibit 8.

Exhibit 9.

Exhibit 10.

Exhibit 11.

Argument.

Photograph of respondent’s three Ford

ears, marked ‘‘The Pennsylvania S.P.

C.A.”’

Identified R. 272a. Offered R. 274a.

Admitted R. 278a, 291a.

Photograph of respondent’s animal am-

bulance, marked ‘‘The Pennsylvania

S.P.C.A.”’

Identified R. 272a. Offered R. 274a.

Admitted R. 278a, 291a.

Photograph of respondent’s former head-

quarters, marked ‘‘Penna. Society

ran

Identified R. 272a. Offered R. 274a.

Admitted R. 278a, 291a.

Photograph of respondent’s water truck,

marked ‘‘The Penna. S.P.C.A.”’

Identified R. 273a. Offered R. 274a.

Admitted R. 278a, 291a.

Photograph of sign at respondent’s

clinic, marked ‘‘The Pennsylvania

S.P.C.A.”’

Identified R. 273a. Offered R. 274a.

Admitted R. 278a, 291a.

Photograph of sign in passageway to

respondent’s clinic, marked ‘*'The Penna.

BF UA.”

Identified R. 2738a. Offered R. 274a.

Admitted R. 278a, 291a.

- 4

ad

.

Argument. 15

Photograph of Directory Board at re-

spondent’s headquarters, marked ‘‘'The

Pennsylvania S.P.C.A.”

Identified R. 278a. Offered R. 274a.

Admitted R. 278a, 291a.

Photograph of three animal ambulances,

marked ‘The Pennsylvania S.P.C.A.”’

Identified R. 274a. Offered R. 274a.

Admitted R. 278a, 291a.

Photograph of respondent’s animal am-

bulance, marked “The Pennsylvania

S.P.C.A.”’

Identified R. 274a. Offered R. 274a.

Admitted R. 278a, 291a.

Respondent’s metal sign for use on build-

ings where animals are housed, marked

‘Penna. S.P.C.A.”’

Ydentified R. 280a. Offered R. 280a.

Admitted R. 280a.

Uniform cap used by respondent’s driv-

ers, marked ‘* Penna. Society P.C.A.”

Identified R. 287a. Offered R. 287a.

Admitted R. 287a.

2 volumes of newspaper clippings show-

ing the respondent frequently referred to

as ‘The Penna. S.P.C.A.”

Identified R. 291a. Offered R. 292a.

Admitted R. 292a.

8 dictionaries, encyclopedias and refer-

ence works, defining S.P.C.A. as meaning

‘Society for the Prevention of Cruelty

to Animals.”

Offered R. 294a. Admitted R. 297a.

eee Serr eee

16 Argument.

They are referred to in detail in the adjudication of

the Orphans’ Court (R. 348a, 349a).

The next of kin, all of whom were there represented

by counsel, offered no evidence as to the meaning of

the abbreviation or on any other subject except their

relationship to the testatrix, and at the conclusion of

the hearing it was definitely stated by their counsel:

““We have no more evidence’’ (R. 308a). Their coun-

sel made an elaborate argument endeavoring to con-

vince the court that the will contained a patent am-

biguity. The record of the hearing on January 29,

1942 (R. 308a), shows that at the conclusion of the

testimony and argument it was closed. Shortly after-

wards further hearings were held for the purpose of

admitting a deposition as to certain of the next of

kin, and to permit the executors to make a statement

about taxes (R. 308a and 316a). At this hearing

counsel for the petitioners stated that he would like to

have his appearance for an additional party noted and

get it in the record ‘‘while it is open,”’ thus evidencing

his realization that the hearing was being closed

(R. 317a).

Although the usual practice in the Orphans’ Court

is for the losing party to file exceptions to the adjudi-

cation, the next of kin first filed a petition to annul

the adjudication (R. 358a) and when this was refused

(R. 368a) filed a motion to set it aside, which also was

refused (R. 370a). Jt was in this petition to annul

the adjudication that, for the first time, the petitioners

alleged that they had not had an opportunity to offer

Argument. 17

evidence as to the meaning of the residuary clause of

the will (R. 361a).

hey then filed 109 exceptions to the adjudication,

and later 5 more, or 114 in all (R. 397a-441la). The

Court modified certain of its findings, immaterial here,

dismissed the exceptions, and confirmed finally the

adjudication on July 13, 1942 (R. 460a).

On appeal to the Supreme Court of Pennsylvania by

the next of kin that Court held that the Orphans’

Court was justified in taking judicial notice of the

meaning of the abbreviation, and affirmed the decree

awarding the residuary estate to the respondent (346

Pa. 610).

2. The Petitioners Had Full Opportunity to be Heard

in the Orphans’ Court.

The next of kin had a full and fair hearing in the

Orphans’ Court. The Court, of its own volition, might

have taken judicial notice of the meaning of the ab-

breviated corporate name of the respondent. But the

respondent offered evidence of the meaning of the

abbreviation and affirmative proof of the respondent’s

identity.

Insofar as the dictionaries, encyclopedias and refer-

ence books, to which the Court was referred, are con-

cerned, they were offered in evidence and were physi-

cally present at the hearing and were available to the

petitioners. ‘They were not withheld from the record.

Compare Ohio Bell Telephone Co. v. Commissioner,

301 U. S. 292, p. 301.

yee se eee

18 Argument.

The badges, labels, photographs and newspaper clip-

pings offered to prove that the respondent frequently

is known by the abbreviation ‘‘The Penna. 8.P.C.A.”

were offered in evidence, were physically in Court,

were available to the next of kin, and are Exhibits in

this case. Every requirement of due process of law

was observed by the Orphans’ Court. They had a full

opportunity to be heard, not only before a decree was

entered (Wilson v. Standefer, 184 U. S. 399, p. 415),

but at the same time as the respondent’s claim was

heard, and at the time set on their own petition for a

hearing of their case. The proceedings which the peti-

tioners invoked were conducted according to the law

of Pennsylvania and the rules of the Court in which

the hearing was held. Thompson v. Nichols, 254 Fed.

973, p. 986.

No federal question was raised by the petitioners at

the hearing or thereafter, until they came to file ex-

ceptions to the Court’s adjudication. Out of 114 ex-

ceptions filed, 2 raised the question of due process of

law, Nos. 100 and 101 (R. 485a-436a).

In the Supreme Court of Pennsylvania the peti-

tioners filed 58 assignments of error, in only one or

possibly two of which was the issue of due process of

law raised.

The Orphans’ Court of Tioga County in passing

upon the petitioners’ motion to open the adjudication

(R. 366a) said:

‘*Furthermore, the next of kin had every op-

portunity to offer evidence in support of their

—

Argument. 19

claims. Evidence to show the intent of testatrix

would have been rejected if offered, but the forum

was open to them for that purpose if they cared

to do so. It was clearly understood at the close

of the hearing that all evidence was in, although

later, and before the filing of the adjudication, it

was opened to allow these petitioners to present

further testimony as to their identity. Without

averring the existence of newly discovered ad-

missible evidence they now seek to open again for

the apparent purpose of showing intent, although

they strenuously contended at the argument that

such testimony is inadmissibie. We agreed with

them then, and have not changed our opinion.

It would be an anomaly indeed were we to

decide, as we have, that the meaning of the will

is obtainable from its face, and then proceed to

open an adjudication based on that meaning for

the purpose of admitting testimony to show that

testatrix did not mean what we found she said.’’

And in overruling the exceptions of the petitioners

(R. 447a), the Court said:

‘*Exceptants had every opportunity at the hear-

ing to offer any evidence that they deemed perti-

nent. Instead of doing so they objected to the

admission of evidence by any claimant on the

ground that there is in the will a patent am-

biguity. (See page 7 of notes of testimony.)

It was not until after the adjudication had been

made that these exceptants petitioned the court

20 Argument.

to open the matter and allow them to offer eyvi-

dence on the question of identity of the Society

claimant, founding the petition upon the unten-

able proposition that they were not bound to offer

evidence until the court had determined that it

would take judicial notice of the meaning of the

term ‘‘Penna. 8.P.C.A.’’ We believe the petition

was properly refused.’’

3. The Orphans’ Court and the Supreme Court

Correctly Construed the Will.

Text books and state and federal decisions sustain

the right of a court to take judicial notice of ab-

breviations and other subjects:

‘‘Another common class of instances, subject

to the foregoing general considerations * * *

is that of the meanings of words and phrases and

written symbols. So far as these are notorious

and unquestioned, they are constantly found

noticed.”’

Wigmore, Evidence, Third Edition, Volume

IX, Section 2582.

Gilman v. Sheets, 78 Iowa 499 (43 N. W. 299);

judicial notice taken that ‘‘Dauphin Co., Pa.’’ meant

‘‘Dauphin County, Pennsylvania.”’

Niaz v. Hedden, 149 U. S. 304; judicial notice taken,

after reference to a dictionary, that tomatoes are

vegetables, not fruits.

a “

Argument. 21

Brown v. Piper, 91 U. S. 37, p. 42; judicial notice

taken as to a freezing process in a claim to a patent

for preserving fish and meats.

And several state and federal decisions are illus- i

trative of proof being received to identify a legatee

where the description in the will is slightly different

from the corporate title:

Kimmel v. Wagner, 1 Walker (Pa.) 191; a devise

to the ‘‘German Eldership’’ awarded to ‘‘The German

Eldership of the Church of God.”’

Newell’s Appeal, 24 Pa. 197; a devise ‘‘To the 3

trustees, or those who hold the funds of the Theo-

logical Seminary at Princeton, State of New J ersey”’

awarded to the ‘‘Trustees of the Theological Seminary

of the Presbyterian Church.”

State Trust Company v. Pierce, 126 Maine 67 (136

Atl. 289); a bequest to ‘‘The Maine State Society

for the Prevention of Cruelty to Animals, which

Society is located at Portland, Maine”’ awarded to

“The Maine State Society for the Protection of

Animals.’

Speer v. Colbert, 200 U. S. 130, p. 142; a bequest

to ‘University of Georgetown’? awarded to ‘‘The

President and Directors of Georgetown College.”

4. No Federal Question is Presented.

The Orphans’ Court and the Supreme Court of

Pennsylvania proceeded, in accordance with the state

laws and practice, to construe the decedent’s will.

At the hearing the petitioners were represented by

OE ee ey Se Tee ee ee eee ee ee

22 Argument.

counsel. After a full hearing the Pennsylvania Courts

awarded the residuary estate to the respondent.

Even if this decision were wrong, no Federal question

is present:

Arrowsmith v. Harmoning, 118 U. S. 194;

Central Land Company v. Laidley, 159 U. 8.

103, p. 112;

Iowa Central Railway Company v. Iowa, 160

U. S. 389, pp. 393-394;

American Railway Express v. Kentucky, 273

U. S. 269, p. 273.

5. Errors in Petitioners’ Summary Statement of

Facts.

The claim of the petitioners to their right to be heard

in this court is based solely upon their allegation that

they were denied a full and fair hearing and deprived

of an opportunity to introduce evidence on their

behalf. The entire record shows the contrary.

Many of the statements in the petition are erroneous

and carry a false implication. The following are

examples:

(a) On page 7 of the petition it is stated:

‘*When the court announced it would consider

evidence, petitioners then asked to be permitted

to put in evidence on their behalf and in rebuttal

(without petitioners abandoning the rights re-

served on their exceptions that no evidence was

admissible as the ambiguity here involved was

patent).”’

— ea

Argument. 23

The implication from this statement is that at the

hearing, which was held for the purpose of receiving

all evidence to be offered by the parties, the peti-

tioners asked and were not permitted to introduce

evidence as to the meaning of the residuary clause.

The record shows the contrary. At the conclusion

of the hearing, counsel for the petitioners stated:

‘“We have no more evidence”’ (R. 308a) ;

and at a subsequent hearing held for the purpose of

permitting the executors to make a statement relative

to taxes, counsel for the petitioners, stating that he

appeared for John Simpson and tat he wished that

to be noted, referred to the fact that he would like

to have his appearance

‘sin the record while it is open.”

It was not until after the court’s adjudication,

opinion and findings had been filed that any question

was raised by the petitioners as to the introduction of

evidence with respect to the meaning of the residuary

clause of the will. This question was raised for the

first time in the irregular proceedings taken by the

petitioners when they filed their petition to annul the

adjudication (R. 361a).

(b) On page 7 of the petition, it is said:

“The Orphans’ Court refused to allow petitioners

to put in any evidence on the ground that any

ee ee ee ee

24 Argument.

evidence concerning this ambiguity was inadmis-

sible (R. 366a) (ostensibly because the ambiguity

was patent) and thereupon ruled that the court

would judicially notice that the abbreviation

meant respondent (R. 366a).’’

This statement is incorrect. As above set forth, it

was not until after the hearing had been closed and

the adjudication and opinion filed that the petitioners

belatedly indicated their desire to introduce any

evidence concerning the residuary clause of the will.

Moreover, the court did not ‘‘thereupon’’ rule that

judicial notice would be taken of the meaning of the

abbreviation. This ruling was made before the peti-

tion to annul was filed and is set forth fully in the

adjudication (R. 331a).

(c) Again, it is said on page 7 of the petition:

‘*Petitioners’ position was, that until the court

ruled whether any evidence would be received,

they would withhold all evidence concerning the

ambiguous residuary clause.”’

There is not the slightest indication in the notes

of testimony of the hearing showing that this was the

petitioners’ position. They refer to pages 359a, 360a

and 361la of the record, which pages refer, not to any

position they took at the hearing before the Orphans’

Court, but to allegations in their petition to annul

the adjudication filed after the court had decided the

case.

eee Beh StS SIERRA, LOE TEOD LEELA LOT GE TOE ITN NERS AES EINE HELE a ~ - i

ee ” yg

* - ae

ie cong

Argument. 25 &

(d) It is further said, on page 7?

‘Without announcing any ruling on the reserved

question, the Orphans Court filed its findings

of fact, conclusions of law and a decree, awarding

nisi the residue of the estate, including in that

residue the trust estate of the decedent, to the

respondent.”’ e

Pe ee Tene ee wees ae Cond

An examination of the notes of testimony at the

hearing (R. 248a) shows no question reserved by the

court, except the right to strike out evidence received

which the court might later determine to be inad-

missible.

(e) On page 8 it is stated that the petitioners, in

their petition to annul the adjudication and reopen the

hearings, ‘‘pointed out’’ to the court that the evidence

offered by the respondent had been received ‘‘pro-

visionally”’ at the ‘‘preliminary hearing,’’ and that

the petitioners had not been advised of the court’s

ruling on the ‘‘reserved question of law.’’ The hear-

ing was not “‘preliminary,’’ but was the one and only

hearing held for the purpose of receiving any and all

evidence that any party or claimant desired to offer.

The respondent’s evidence was not received ‘‘pro-

visionally,”’ nor did the petitioners refrain from offer- e

ing evidence because the hearing was ‘‘preliminary”’ ‘

or because the respondent’s evidence was offered

“provisionally.”

(f) On page 6, it is said that the Orphans’ Court

dismissed the application of the petitioners for a

LILLE ELLE LILI TL EL AMDT AER IIE SERS i Nal a a

Sad CE,

26 Argument.

declaratory judgment, but that in doing so, it recog-

nized that the residuary clause was ambiguous. There

is nothing in the record to show that in those pro-

ceedings the court in any way indicated that the

residuary clause of the will was ambiguous.

(g) In the second paragraph, page 6, it is said that

at the hearing ‘‘the judge * * * and the respond-

ent’’ agreed with each other that there was nothing

in the will upon which to predicate a charitable use.

The record fails to disclose any such ‘‘agreement”’ or

any statement either by the judge or the respondent to

that effect.

These are but examples. Some of the erroneous

statements are repeated in other parts of the petition.

In view of what the record shows and the full oppor-

tunity afforded to the petitioners to present at the

hearing any evidence that they desired, it is difficult

to understand an allegation such as that contained on

page 16, paragraph 2, that they were deprived of due

process of law because the case was decided against

them ‘‘without their ever having the opportunity to

present their evidence.”’

6. Conclusion.

It is obvious that no federal ground adequate to

support the petition exists, the construction of the

will being a local question and the decision of the court

being on the construction of that will.

Compare Bilby v. Stewart, 246 U. S. 255, p. 257.

The petitioners chose not to offer any evidence at

the hearing in the Orphans’ Court to prove that the

>

Argument. 27

abbreviation ‘‘the Penna. 8.P.C.A.’’ meant something

other than the corporate title of the respondent. They

were afforded every opportunity to do so. It may be

assumed that the reason they did not was because they

had no such evidence.

The action of the court in refusing to open the

adjudication and to let them do so later does not raise

a federal question.

American Surety Co. v. Baldwin, 287 U.S.

156, p. 168.

The respondent respectfully asks that the petition

for a certiorari be denied.

Respectfully submitted,

Everett H. Brown, JR.,

FrRepERIC L. CLARK,

Attorneys for Respondent.

SHIELDS, CLARK, Brown & McCown,

Of Counsel.