be created, having a seal, a clerk, and jurisdiction in actions at law or equity, or law and equity, in which the amount in controversy is unlimited. By the thirteenth section of the act (section 4372) it is provided that the clerk of each and every court exercising jurisdiction in such cases shall charge, collect, and account for the following fees in each proceeding: For receiving and filing a declaration of intention and issuing a duplicate thereof, $1; for making, filing, and docketing the petition of an alien for admission as a citizen, and for the final hearing thereon, $2; and for entering the final order or the issuance of the certificateship thereunder, if granted, $2. This further provision fol

lows:

"The clerk of any court collecting such fees is hereby authorized to retain one-half of the fees collected by him in such naturalization proceeding; the remaining one-half of the naturalization fees in each case collected by such clerks respectively, shall be accounted for in their quarterly accounts, which they are hereby required to render the bureau of immigration and naturalization."

John W. Reese, the defendant, is prothonotary of the court of common pleas of Schuylkill county, a county having over 150,000 inhabitants. Of the fees he collected in naturalization proceedings during 1913 and 9 months of 1914, ending with September of the latter year, he retained a one-half, amounting to $2,823. This sum the county has demanded of him on the ground that he is a salaried officer, and under the law all fees received by him in his official capacity belong to the county. Refusing to comply with the demand, a case stated was agreed upon to determine the ownership of the fund. The court below held that the fees received by the officer in naturalization proceedings and retained by him belonged to him individually; and judgment was accordingly there rendered for the defendant. The county has taken this appeal, only that a determination may be reached such as will avoid future controversy over like subject-matter.

Section 5, art. 14, of the Constitution of Pennsylvania, reads as follows:

"The compensation of county officers shall be regulated by law, and all county officers who are or may be salaried shall pay all fees which they may be authorized to receive, into the treasury of the county or state, as may be directed by law. In counties containing over 150,000 inhabitants all county officers shall be paid by salary."

levied for the state, which shall be to and for use of state; and none of said officers shall receive for his own use, or for any use or purpose whatever except for the use of the proper county or for the state, as the case may be, any fees for any official services whatsoever."

These two provisions, constitutional and legislative, express too clearly for refinement, not only a settled policy of state, but the contract between the state and the defendant as a public officer. The latter accepted the office to which he was elected upon the terms therein prescribed. His contention is that, in collecting fees in naturalization proceedings, he was not acting pursuant to any law of this commonwealth, nor discharging any duty imposed by the laws of this commonwealth, but was acting as a representative of the United States government, deriving his power and authority from the United States, and was therefore entitled personally to whatever compensation the United States allowed for the services rendered. The case of Mulcrevy & Fidelity & Deposit Co. v. City and County of San Francisco, supra, is directly in point, and it only remains to show how completely it governs. This much is made necessary by the argument advanced to distinguish the two cases. In the Mulcrevy Case the action was brought by the city and county to recover from the county clerk money received by him in his official capacity as county clerk, in naturalization proceedings. In the court below the same defense was made as here. Judgment was rendered for the plaintiff, and on appeal to the Supreme Court of the state, the judgment was affirmed. An appeal to the United States Supreme Court was taken, and like result followed there. What is now relied on to distinguish the two cases is the difference between the legislative provisions in the respective states, abridging or denying the right of salaried officials to receive and retain fees. The charter of the city of San Francisco fixes the salary of the clerk at $4,000, and thus proceeds:

"The salaries provided in this charter shall and every officer shall pay all moneys coming be in full compensation for all services rendered, into his hands as such officer, no matter from whatsoever source derived or received, into the treasury of the city and county of San Francisco."

It is insisted that the language here used embraces far more than does our statute above recited in that it requires that all moneys coming into the hands of the clerk, "from

be paid into the treasury of the city or county, while our statute simply appropriates to the county any fees as are limited and appointed by law to be received by the officer, and denies to the officer "any fee for any official services whatever." While the difference in language is observable, any distinetion as to effect would hardly occur to a disinterested and impartial mind. These fees

statute, and by such statute directed to be paid to a clerk of a state court, are quite as clearly limited and appointed by law to be collected by such official as any fees prescribed by state enactment; and it is impossible to see that this language excludes any fee of any kind that the official may collect or receive in his official capacity. It would, as it seems to us, be captious criticism to deny it as comprehensive meaning as that allowed the expression in the San Francisco charter, "from whatever source derived or received." Following this provision in the state act, we have this positive and express prohibition: "None of said officers shall receive for his own use, or for any use or purpose whatever except for the use of the proper county or for the state, as the case may be, any fees for any official services whatsoever."

Language more comprehensive could not well be conceived. There is here an entire absence of any qualifying word, unless it be the word "official." The contention is made that the naturalization fees received by the plaintiff in error were not paid him for any official acts or service, within the meaning of the statute; that the state had imposed no duties upon his office in the matter of naturalization; and that no act of his outside the duties imposed by our own state law can be regarded as official and falling within the meaning of the statute. The contention overlooks the fact that the naturalization of foreigners has been the subject of judicial cognizance in our state courts from the beginning, and that, under the procedure in connection therewith, like duties and services have always been required of those holding like places with the plaintiff in error. Rump v. Commonwealth, 30 Pa. 475. But, without this, it was only by virtue of his official character, and not as an individual, that he was authorized to collect and receive these fees. He is not designated as an individual, but as an official. Answering a like contention, in the Mulcrevy Case, supra, the United States Supreme Court, speaking by Mr. Justice McKenna, says:

"But it is contended by plaintiffs in error that the fees having been received officially is not of importance; that nevertheless he acted as the representative of the United States in execution of the policies of the United States, and, being by the act of Congress invested with his powers, he is entitled for himself to the compensation prescribed by the act for their execution without any liability to account for them to the city. The last proposition, however, does not follow from the others, and the others are but confusing. If it be granted that he was made an agent of the national government, his relations to the city were not thereby changed. He was still its officer, receiving fees because he was not earning them otherwise or receiving them otherwise, but under compact with the city to pay them into the city treasury."

And again, referring to the contention made that the fees belonged to the official, the opinion proceeds:

act does not purport to deal with the relations of a state officer with the state. To so construe such questions are always to be avoided. We it might raise serious questions of power, and do not have to go to such lengths. The act is entirely satisfied without putting the officers of a state in antagonism to the laws of the stateIt is easily construed and its purpose entirely the laws which give them their official status. accomplished by requiring an accounting of one-half of the fees to the United States, leaving the other half to whatever disposition may be provided by the state law."

We have attempted nothing more than to that the statute of this state bearing on the show the parallel between the two cases, and particular subject we have been considering is no less restrictive than the charter of San Francisco, under the terms of which the California case was decided. We have cited the latter case as supporting two propositions: First, that the clerks of state courts are not officials of the United States, but officials in the states in which they exercise their office; and, second, that, under the act of Congress conferring the right upon the clerks of states to retain one-half the prescribed fees they collect in naturalization proceedings, it is competent for the several states to require of such officials that they pay over the amount retained for the use of the state or county, as the case may be. That this state has so done both in its Constitution and legislative enactments we think admits of no question. The assignments of error are therefore sustained.

The judgment is reversed, and judgment is now entered for the plaintiff in the sum of $2,833, and costs.

(249 Pa. 515)

May 17,

MCBRIDE v. MANGAN. (Supreme Court of Pennsylvania. 1915.) CONSTRUCTION - ESTATE BE

WILLS 601

husband *

*

*

QUEATHED. Where a wife bequeathed "all the rest of my estate * to my beloved * to have and to hold to him * and to his heirs and assigns forever. And after his death I request that my estate, both real and personal, be divided" between a brother and sister named-the devise to the husband vested him with an estate in fee simple in the wife's lands, which was not cut down by the precatory words which followed.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 1340-1350, 1608; Dec. Dig. 601.]

Appeal from Court of Common Pleas, Luzerne County.

Action by James McBride against John J. Mangan. From a judgment for plaintiff on case stated, defendant appeals. Affirmed.

Argued before BROWN, C. J., and MESTREZAT, POTTER, STEWART, and FRAZER, JJ.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3131; Dec. Dig. 2. REFORMATION OF INSTRUMENTS

13

DEEDS-CORRECTION OF MISTAKE. Where, in a suit to reform a quitclaim deed, it appeared by inference from the acts and declarations of both parties that the deed was intended to convey only plaintiff's undivided interest in certain land, but that, by mistake, other land owned by plaintiff in severalty was included without consideration, and the grantees had made no claim to such land for more than eight years, the court properly reformed the deed to correct the mistake.

[Ed. Note.-For other cases, see Reformation of Instruments, Cent. Dig. 88 42-60; Dec. Dig. 13.]

stead itself of the plaintiff, on which he was residing at the time and continued to reside afterward; (6) that each of the grantees made sundry subsequent declarations to the effect that plaintiff owned the land in question: (7) that neither of the grantees made any effort to take possession, or any assertion of ownership, or any manifestation whatsoever indicating a claim to the land, neither Sophia Stare prior to her death in 1906, nor her devisees and Jacob B. Stare, until November, 1911, when ejectment was brought for the homestead property, and that during the period from 1903 to 1911 all of the land was permitted to be assessed as the property of the plaintiff and his later grantees; tiff in the transaction was $650 in cash, for his (8) that the consideration moving to the plaininterest, amounting to about $1,300, in the unpaid purchase money, and a conveyance of their interest in 10 of the unsold lots for his interest transaction for them, with the balance of conin about 60 of those lots, a very advantageous sideration largely in their favor in respect to the extinguishment of his undivided interest, and the inclusion of the property in question would give them additional value amounting to $3,000, for which they gave absolutely no consideration whatever.

(4) The plaintiff, by warranty deed, in 1904, conveyed the homestead property to Lahm, and in 1910, by like deed, conveyed the other property to Jones. Lahm in 1908 conveyed to White. White and Jones now have possession under those deeds.

(5) Sophia Stare died November 24, 1906, testate, devising all her real estate to the present defendants.

Bill by Albert E. Haines against Jacob B. Stare and others, for reformation of a deed. From a decree for plaintiff, defendants appeal. Affirmed.

Fuller, P. J., filed the following findings of fact and conclusions of law in the court of common pleas:

(1) The plaintiff, Albert E. Haines, on September 15, 1903, executed, acknowledged, and delivered to Jacob B. Stare and Sophia Stare a quitclaim deed of that date, recorded September 17, 1903, in Deed Book No. 413, page 491, of all his right, title, and interest in a certain tract of land situated in the borough of West Hazleton, and township of Hazle, said county, containing 51 acres and 21 perches.

(2) Said deed was intended and understood by the parties to convey only the plaintiff's undivided interest in certain unsold lots and in the unpaid purchase money owing upon certain sold lots owned by the parties in common, but, by a mutual mistake of the parties at the time of its execution, the deed embraced certain other lots owned by the plaintiff in severalty.

(3) The conclusion of such mutual mistake is derived from the circumstances: (1) That the parties at the time were negotiating for an extinguishment of plaintiff's undivided interest, in settlement of a dispute amongst them respecting the same; (2) that the land owned by the plaintiff in severalty was not in their contemplation at all; (3) that the conveyance was only a quitclaim of right, title, and interest and not a warranty deed; (4) that the original general description of the entire tract, as laid out in lots by the parties, was naturally employed in drawing the conveyance, while the fact of plaintiff's ownership in severalty of a portion was by an easy inadvertence overlooked; (5) that one piece of the land held in severalty was the very home

property.

ties of the situation can only be conserved by re(7) The intention of the parties and the equiforming the conveyance as prayed in the bill and hereafter set forth in the decree nisi.

We state in our own language the following conclusions of law:

(1) Plaintiff has clearly established his right to reformation of the deed unless debarred by

his own inadvertence at the time of its execution.

(2) His inadvertence, however, in which the grantees shared, was quite natural under all the circumstances, does not belong in the category of supine negligence which would bar relief, and would be too harshly punished by refusing the reformation which would make the conveyance conform with the plain intention of the parties and with the manifest equities of the situation. (3) The prayer for relief should be granted. Exceptions to the findings of fact and conclusions of law were dismissed by the court in banc.

Argued before BROWN, C. J., and MESTREZAT, POTTER, STEWART, and FRAZER, JJ.

W. Alfred Valentine and Charles E. Keck, both of Wilkes-Barre, and Fred L. Smith, for appellants. Granville J. Clark, of WilkesBarre, for appellee.

so to be re

[Ed. Note. For other cases, see Charities, Cent. Dig. §§ 44-50; Dec. Dig. 21.]

2. CHARITIES VALIDITY. Where in such case testator empowers his trustees to fill vacancies occurring in their number, the fact that such trustees are also empowered to borrow money and incorporate companies and to distribute the stock does not indicate an intention to create an unincorporated charitable foundation, especially where gifts in the nature of annuities to individual legatees render necessary the continued existence of the trust, at least during the lifetime of the annui

33-CHARITABLE BEQUESTS—

tants.

[Ed. Note. For other cases, see Charities, Cent. Dig. §§ 68-74; Dec. Dig. 33.]

Appeal from Orphans' Court, Mercer County.

In the matter of the estate of Peter L Kimberly, deceased. From a decree dismissing exceptions to the adjudication, David W. Kimberly, ancillary administrator c. t. a., appeals. Affirmed.

See, also, 95 Atl. 83.

Argued before MESTREZAT, POTTER, ELKIN, MOSCHZISKER, and FRAZER, JJ. William McElwee, Jr., of New Castle, for appellant. Harry H. Barnum, of Chicago, Ill., James P. Whitla, of Sharon, and Rubens, Fischer & Mosser, of Chicago, Ill., for appellees.

MOSCHZISKER, J. This case involves the construction of the will of Peter L. Kimberly, deceased, who died June 4, 1905. The orphans' court of Mercer county distributed 77 per centum of the estate to named beneficiaries, and that portion is not affected by the present appeal. By the third "paragraph" or item of his will, the testator, after certain specific legacies and annuities, gave the residue of his estate to three trustees previously named therein, with direction, power, and authority

"to use and apply the same, to such charitable uses, objects and purposes, as they may from time to time select or deem most desirable; hereby giving to them the full and absolute power to select and apply the whole of said rest,

The orphans' court upheld the provision just quoted as a valid trust. David W. Kimberly, the appellant, contends, as he did in the court below: (1) That the bequest to the trustees for charitable purposes was void for uncertainty; and (2) that the will created a permanent unincorporated charitable association, consisting of the trustees and their successors, with an annual income greater than allowed by law.

[1] Counsel for the appellant, in his printed argument, frankly admits that the line of decisions of this court, "of which Dulle's Est., 218 Pa. 162, 67 Atl. 49, 12 L. R. A. (N. S.) 1177, and Mann v. Mullen, 84 Pa. 297, are fairly representative," rules his first contention against him; but he urges a reconsideration of the point in question. After giving heed to the numerous cases from other jurisdictions, some of which are in conflict with our own decisions, we are not moved to depart from the doctrine of Dulle's Est., supra. There the language of the will in regard to the residuary estate was:

same

*

"I do hereby direct my said executors to pay over, appropriate, dispose of and distribute the to and among such religious charitable and benevolent purposes and objects or persons or institutions as I shall specify in writing or in default of such written direction left by me, then I do hereby give and grant unto my said executors and the survivor of them full and unlimited power and authority to pay over, appropriate, dispose of and distribute the said rest, residue and remainder of my estate to and among such religious charitable and benevolent purposes and objects or institutions as in their discretion shall be best and proper.

"

In that case, as in this, the testator left no written directions, and the appropriation and distribution of the residuary estate for charitable purposes fell to the discretion of the trustees named in the will. We there said (218 Pa. 164, 67 Atl. 49, 12 L. R. A. [N. S.] 1177):

"If the testatrix had made the writing referred to and named the objects, persons, or inIstitutions she desired should take, there could be no question of the validity of the bequests whether the courts or any one else thought the objects were religious, charitable, or benevolent or not. In naming the legatees she would have defined the terms 'religious,' 'charitable,' and benevolent' for the purposes of her will, and it was within her right to do so. She did not make the written directions, however, and therefore the alternative provision of her will became operative. The discretion which was hers to exercise she chose to delegate to her executors. It was her right to do so, and so long as their valid as if it was expressly her own. discretion is not legally abused, its exercise is as

"

218 Pa. 165, 67 Atl. 49, 12 L. R. A. (N. S.) 1177:

"It is manifest that the testatrix intended distribution among others than the executors, and that the gift to them was in a fiduciary capacity.