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after my death, neglect or refuse to exhibit and submit such accounts
at the time and in the manner above directed, it is my will and de-
sire, that the said court of general quarter sessions of the peace shall
have power and authority, by attachment or otherwise, to compel
the said trustees, principal, and tutor, to account as aforesaid.

It is further my will, and I do hereby authorize and empower the
judges of the court of common pleas, for the time being, in and for
the county of Dauphin, at the first stated term in each year after my
death, by a majority of voices, to nominate and appoint a respectable
freeholder of the county of Dauphin, as visitor of the orphan-house.
in. 3 c



418 SUPREME COURT [Harrisbwg

[Ex parte Cassel and Spayd.]

It shall be the duty of the visitor, and he shall have a right, power
and authority, without denial, hindrance, molestation or impediment
from the trustees, principal or tutor, or any of them, or from any
person or persons under their care, or in their employ, to enter into
the said orphan-house, and into every part thereof, and into all the
buildings and outhouses appertaining thereto, and every of them, as
also into the mill or mills and other water works, as also into all and
every of the dwellinghouses, shop or shops, and outhouses appertain-
ing to them or either of them, and also into the farms, houses, barns,
stables and other outhouses belonging thereto, for the purpose of in-
spection, and that twice in the year, viz. once in the spring and once
in autumn. The precise time shall be in the discretion of the visi-
tor. In the course of the visitor's inspection, a trustee or trustees,
the principal of the orphan-house and tutor (they having severally
forty-eight hours previous notice in writing, of the time of the in-
tended visitation) shall accompany the visitor, and freely and can-
didly answer any questions he may propose to them or either of them
respecting the economy of the orphan-house, the mill or mills, or
other water works, the manufactories of the institution, the garden,
the farms, the method of culture of each, and concerning the expen-
diture of labour or money upon, and product of each and every of
them.

2. The visitor shall inquire into and inspect the manner of tuition
of the orphans, how they are employed between school hours, of
their behaviour morally and religiously, concerning their food, their
clothing, their bedding, and in general to ascertain from actual ?iew
and observation whether the economy of the institution is conducted
upon principles such as my bounty and the directions of this my last
will do require.

3. The visitor, at the then next court of common pleas after such
visitation, shall make report t the said court in detail of his observa-
tions upon and managementof the fundsof the institution. The court,
upon such report beingmade, mayapprove thereof,or if there be a good
ground laid in such report for so doing, may censure or reprimand a
trustee or trustees, principal or tutor for negligence or mismanagement
in the economy of the institution by them or any of them. But if it
appears to the said court of common pleas, that great dilapidations
have been permitted by the principal, or that a trustee or trustees,
the principal or tutor, have been guilty of a gross and vicious mis-
application of the funds of the institution, the said court shall have
power and authority, in a summary way, to remove such trustee or
trustees, principal or tutor, as the cose may be, from office : upon
which removal, it shall be the duty of the remaining trustee or trus-
tees, principal or tutor, as the case may be, to elect a person or per-
sons in the stead and place of such trustee or trustees, principal or
tutor so removed : which election shall be conducted in the same
manner, and be subject to the same rules and regulations, as are
hereinbefore directed as to elections. But no trustee, principal or



JYbt>. 1834.] OF PENNSYLVANIA. 419

[Ex parte Cassel and Spayd.]

tutor, who has been removed from office for dilapidation or misappli-
cation of the funds of the institution as aforesaid, shall be eligible to
any office or employment in the orphan-house, or the estate thereto
appertaining.

It is further my will and intention, lhat whensoever the town of
Middletown shall become an incorporated borough, that then, and
from henceforth, the power of the court of common pleas aforesaid
to nominate and appoint a visitor, shall cease, determine and become
absolutely void ; and that the power and authority and privileges
delegated by me to the visitor, shall be immediately transferred to>
and be vested in the burgesses of the borough of Middletown for
ever ; and be exercised by them in the same extent and manner, and
subject to the same duties as the visitor appointed by the court of
common pleas had and held the same.

If in the dispensation of providence, it should so occur that this
institution, the benefits of which I would have to descend to future
ages, should fail or be dissolved, because of the death, emigration, or
removal of the trustees and other officers for dilapidation or mis-
management as aforesaid, or in consequence of some public calamity
or other means, it is my will and desire, that then the governor of
Pennsylvania, for the time being, shall have power and authority to
nominate and appoint in writing, under his hand and the less seal of
the state, such and so many trustees, a principal of the orphan-house
and a tutor, as I have hereinbefore named, according to the provi-
sions contained in this my last will. And it is further my will, that
the persons so to be appointed by the governor of Pennsylvania, shall
forthwith hold and enjoy their several and respective offices of trus-
tees, principal and tutor, with all the powers, rights, privileges and
emoluments of their several and respective offices, as fully and amply
as the trustees, principal and tutor herein personally named, and be
subject to the same duties, and be accountable in the same manner
as is hereinbefore directed.

And further it is my will, and I do hereby devise to the trustees
first and personally named in this my last will, and to the survivors
and survivor of them and to the heirs and assigns of such survivor, all
that tract or parcel of land, situate in Middle creek, in Penn's town-
ship, in the county of Northumberland, containing two hundred and
seven acres and thirty-eight perches, be the same more or less, and
which is known by the name of Beaver Dam, to hold to them and
the survivors and survivor of them, and to the heirs and assigns of
such survivor in trust, and to the intent that they or the survivors
or survivor of them, immediately after my decease, shall sell the
same to the best bidder, and for the highest sum that can be gotten
therefor, in fee simple ; and that the money arising from such sale,
shall be applied to the same uses and purposes as is directed herein,
as to the rents and profits of my real estate, hereinbefore devised.

It is further my will, that if hereafter any legacy, bequest or do-



420 SUPREME COURT [Harrisburg

[Ex parte Cassel and Spayd.]

nation should be bequeathed or given to the Emmaus orphan-house
when it shall be incorporated, or before that period, to the trustees,
principal or tutor, or either of them by name, for the use of the in-
sthulion, that ihe principal shall enter such legacy, bequest or dona-
tion in a book to be kept in the orphan-house for that purpose
noting particularly the name of the donor (if that is permitted by him
or her), the lime and amount of the donation, and once in every year
about the anniversary of such donation, if a sermon should be then
preached in the orphan-house, the clergyman shall mention publicly
the circumstances of such bounty.

And further it is my will, that the trustees, who shall hereafter be
elected by virtue of this my last will, shall be respectable freeholders
of the county of Dauphin, of good moral and religious characters,
and be regular members of some one of the churches of the protestant
religion; but the principal of the orphan-house, and the tutor, shall
at all times hereafter be persons of sound religious principles, of good
morals, and be regular members of the Evangelical Lutheran religion
according to the Augsburg confession.

Further it is my will, and I do hereby nominate and appoint John
Cassel aforesaid, yeoman, as the principal of the orphan-house, to
hold and enjoy the same office, in the manner and upon the terms
hereinbefore set forth. And I do hereby nominate and appoint

as the tutor of the orphan-house,

to hold and enjoy the same office, upon the terms and in the manner
hereinbefore set forth.

And further it is my will and desire, that the trustees, the prin-
cipal and the tutor, at the session of the legislature of Pennsylvania,
next after my decease, shall apply by petition to his excellency the
governor, and the honourable the senate and house of representatives,
that they will severally pass an act, constituting the said trustees,
principal of the orphan-house and tutor, a body politic and corporate,
by the style and title of the Emmaus orphan-house, with the usual
and necessary corporate power?, as nearly conformable to the spirit
and meaning of this my last will as may be.

Lastly, I do hereby nominate and appoint the trustees herein first
and personally named, the survivors and survivor of them, executors
of this my last will and testament, and do hereby revoke, annul arid
make void all other will or wills, testament or testaments, by me
heretofore made. In witness whereof, I hereto set my hand and
seal, the 12th day of May, in the year of our Lord 1806.

GEORGE FREY, [L. s.]

Signed, sealed, published, pronounced and declared by the testator
as and for his last will and testament, in presence of us, John Blat-
tenberger, Jun., Abraham Rife, Charles Brandon.

Proved May 31, 1806.

I, George Frey, of Middletown, in the county of Dauphin, and
commonwealth of Pennsylvania, merchant, do make this codicil to



Nov. 1834.] OF PENNSYLVANIA. 421

[Ex parte Cassel and Spayd.]

be taken as part of my last will and testament. It is my will that
all my real estate of whatever kind not otherwise appropriated or
mentioned in my last will and testament, shall be sold when con-
venient, and the moneys arising from such sales to be put into the
hands of the trustees mentioned in my said last will, for the use of
the charitable institution or orphan-house mentioned in my said last
will. It is also my will that all moneys due to me on bond, note or
book account, or otherwise, when recovered, shall also be put into
the hands of the aforesaid trustees, for the use and benefit of ihe said
charitable institution or orphan-house ; and as there are several tracts
of land now in controversy, and suits have commenced for the reco-
very thereof, and probably more controversies may arise respecting
lands which I claim as my right, it is my will that all such lands
be recovered as soon as the nature of the case may admit, and the
lands sold, and the moneys thereof be appropriated as aforesaid ; and
I do hereby nominate and appoint my trusty and loving friend John
Crabb, Sen. of Middletown aforesaid, and now residing in my fami-
ly, to be my agent in carrying on all suits for the recovery of all
lands in controversy ; and also, I do hereby nominate and appoint
the said John Crabb, Sen. my lawful agent to recover all other mo-
neys which may be endue me in anywise, and for which he, the said
John Crabb, shall receive 10 pounds out of every 100 pounds for all
such moneys so recovered either by the sale of lands or otherwise ;
and the said John Crabb is to reside with my family and is to have
100 dollars each and every year while he remains in said employ-
ment, over and above the said 10 pounds out of each 100 pounds.
It is also my will, that the present German school kept by Frederick
Miller, in Middletown, shall continue and be kept in the same man-
ner and under the same regulations and emoluments as heretofore,
until such time as the said orphan-house shall be completed. And
further, it is my will that the said John Crabb, my agent, shall be
allowed to keep a horse, and to have money to bear his reason-
able expenses while on business aforesaid. In witness whereof I
have hereunto set my hand and seal, the 12lh day of May, in the
year of our Lord 1806.

GEORGE FREY, [L. s.]

Signed, sealed, published, pronounced and declared by the testator
as a codicil to his last, will and testament, in presence of us, John
Blattenberger, Jun., Abraham Rife, Charles Brandon.

Proved May 31, 1806.

The following report of auditors, to whom the accounts were re-
ferred by the supreme court, exhibits all the facts which gave rise
to the questions argued and determined.

Report of auditors on the account of John Cassel and Christian
Spayd.

The auditors appointed by the supreme court on the 25th of May
1829, to take the accounts, either jointly or separately, on thirty days



422 SUPREME COURT [Harrisburg

[Ex parte Cassel and Spayd.]

notice, of Christian Spayd, George Lowman and John Cassel, trus-
tees under the last will of George Frey deceased, respectfully report:

That in pursuance of the order of the court, the notice required
having been given, the auditors met on the 24th of July 1829, at the
house of J. B. Henszey, in the borough of Harrisburg, and after being
sworn, entered upon the duties assigned to them, all the accountants
being present, and proposed to settle their accounts separately. They
were ordered by the board to file their accounts for the inspection
of the counsel for the petitioners, and the board adjourned to meet
on the 12th of August; when further examinations being made, the
board adjourned until the 10th of September. At this meeting, Chris-
tian Spayd and John Cassel having filed accounts, examinations in
detail were commenced, and the accountants were questioned upon
oath. After spending several days in comparing the accounts with
the entries in the books, and hearing objections and explanations, it
was discovered that the manner in which the accounts were stated
was not satisfactory; the board then gave detailed instructions to
Mr Spayd, requiring the different items of receipts and expendi-
tures to be arranged under distinct heads, and adjourned until the
8th of October, when similar instructions were given to Mr Cassel,
and on the 26th of October the revised accounts were exhibited, and
the counsel for the petitioners propounded their interrogatories in
writing, copies of which were ordered to be furnished to the account-
ants, who were directed to file their answers on the third Monday in
November, and the board adjourned to meet on the 28th of December ;
at which meeting the answers to the interrogatories having been filed,
supplemental interrogatories were propounded to the accountants by
the counsel for the petitioners, and the board adjourned until the
16th of January, when the supplemental answers were exhibited,
and the counsel for the petitioners were allowed five weeks for filing
their exceptions, and the board adjourned until the 29th of March,
at which time, and on the 12th of April, 5th, 8th and 19th of May,
and the 2d of June, the board met and received sundry depositions
and records in evidence, and heard a variety of parol testimony, and
the arguments of counsel on both sides. On the 5lh of June the
testimony and pleadings were closed, and the board adjourned to
meet the 18th of June, for the purpose of deliberating and deciding
upon the numerous and complicated questions which in the course of
this tedious and perplexing examination were submitted. After
spending several days, they adjourned, and met on the 28th of Oc-
tober and 16th of November, when they agreed upon this report.
This statement is made for the purpose of showing the means that
were taken for the purpose of discharging the duty assigned to the
auditors, and also for the purpose of accounting for the delay which
has occurred in making this report.

One of the first subjects for the consideration of the auditors, was
the will of the testator; a printed copy is herewith submitted, proved



JVot>. 1834.] OF PENNSYLVANIA. 423

[Ex parte Cassel and Spayd.]

the 31st of May 1806, under which the trust estate in the hands of
the accountants was created.

The following parts of the will appear to have relation to duties,
&c. of the trustees, before the orphan-house was contemplated to be
in operation.

The principal object of the testator was to erect an orphan-house
upon his real estate for the maintenance and education (free from all
expense or charge to the children or their relatives) of all such poor
but healthy orphan children as shall be of the age of five years and
under the age of twelve years, whether they be boys or girls, as the
estate will admit, to be educated in the German language, and in
the tenets of the Lutheran religion. The boys to remain there until
the age of fifteen, and the girls until fourteen years of age.

For the purpose of effecting this object, the testator devised to J.
Landis, Charles Fisher, Jacob Rife and John Cassel, and to the sur-
vivors or survivor of them and to the heirs and assigns of such sur-
vivor, certain described real estate in and about Middletown, and
ground rents and personal estate, also the proceeds of the Beaver
Dam farm in Northumberland county, to hold to them and the sur-
vivors and survivor of them and the heirs and assigns of such survivor,
upon this especial trust and confidence, and no other.

1. In trust, and to the intent that his wife Catharine should during
her natural life reside in his dwellinghouse, and use and enjoy all
and singular his personal property in and about the house and lot of
ground, with the appurtenances, in as full and ample a manner as
he himself then used and enjoyed the same.

2. That the trustees should pay and deliver to his said wife such
sums of money and other articles as she might from time to time
stand in need of and demand, out of the annual rents of the estate
devised.

An inventory was to be taken of the said personal property by one
or more of the trustees, without interfering with the right of the wife
to use the same as she might think right and reasonable, and upon
her death whatever might remain of the said personal property, was
to return to and be vested in the general fund of his estate.

3. That the annual rents and profits of the real estate devised and
all his personal estate (except the provision for his wife) should be
applied in perpetuity to the support of the orphan-house and to the
maintenance and education of as many poor orphan children as the
proceeds of the estate would bear.

The funds for the support of the institution being thus created, the
testator proceeds to make provision for its government. In addition
to the four trustees, the officers were to consist of a principal and
tutor. As the testator appointed one of the trustees principal, the
presumption arises that this officer mayor may not be a trustee.
The trustees, principal and tutor, were vested with power to supply
vacancies that might occur in the board of trustees, or in the office
of principal or tutor. These officers were directed within one year



484 SUPREME COURT [Hanisburg

[Ex parte Cassel and Spayd.]

after the testator's death, or within two j^ears at farthest, to carry the
will into effect and put the orphan-house in operation.

John Cassel, one of the trustees, is appointed principal of the in-
stitution, and the trustees, viz. John Landis, Charles Fisher, Jacob
Rife and John Cassel, and the survivors and survivor of them, are
appointed executors of I he will.

A feigned issue to try the validity of the will was tried in the cir-
cuit court of Dauphin county before the chief justice, and a verdict
was given on the 1 6th of April 1807, finding in favour of the validity
of the will, and against the codicil.

As the erection of the orphan-house has not been carried into
effect, the auditors took and examined the accounts of the trustees
as to the period which was contemplated by the testator to intervene
between his death and the commencement of operations in the or-
phan's court.

In the trial of the validity of the will, the executors employed three
eminent counsel Messrs Duncan, Smith and Montgomery, to each
of whom they gave the security of the trust estate for the payment
of about 600 pounds. This debt, thus created by the executors at
the commencement of the trust, was one of the causes of the embar-
rassment.

The will being established, the trustees, principal and executors
entered upon the duties of their respective offices, the lines of which,
as will hereafter appear, were not in practice marked with any kind
of precision. This circumstance has caused much of the difficulty
encountered by the auditors.

The following changes have since occurred in the board of trus-
tees : John Cassel, John Landis, Charles Fisher and Jacob Rife, ap-
pointed in the will; William Crabb, Sen. elected in the room of Jacob
Rife deceased, the 5th of September 1807; Joseph Burd, elected in
the room of Charles Fisher deceased, the 30th of May 1808 ; John
Elliot, elected in the room of Joseph Burd resigned, the 3d of Decem-
ber 1810; Jacob Hershey, elected in the room of John Elliot resigned,
the 25th of February 1812; Ephraim Heller and John Smith, elected
in the room of William Crabb deceased, and John Landis resigned,
the 8th of December 1813 ; George Lowman, elected in the room of
John Smith deceased, on the 19th of July 1820; Christian Spayd,
elected principal on the 20th of January 1814, in the room of John
Cassel resigned, approved the 12th of February 1815.

The auditors were appointed to take the accounts of Christian
Spayd, George Lowman and John Cassel. From the foregoing re-
view, it appears that John Cassel has been a permanent trustee,
and that he was principal of the institution from about the 1st of June
1806 until the 29th of January 1814, seven years and eight months.
That Christian Spayd has not been elected trustee, but has been
principal, of the institution from the 12th of February 1814. His
account, as taken by the auditors, terminated on the 26th of Octo-



JVw. 1834.] OF PENNSYLVANIA. 425

[Ex parte Cassel and Spayd.]

her 1829, making a period of fifteen years and eight and a half
months.

The real estate devised to the trustees consisted of,

1. The grist-mill at Middletown.

2. The M'Clenachan farm, near Middletown, containing about
five hundred acres.

3. The M'Clure farm, near Middletown, containing two hundred
and eighty-five acres.

4. The Middletown tract, containing one hundred and twenty
acres.

5. The mansion house in Middletown, devised to the widow dur-
ing life.

6. The Hemperly house in Middletown.

7. Two houses in Middletown.

8. A number of unimproved lots in Middletown.

9. Ground rents in Middletown, on upwards of one hundred lots,
the amount of annual income not exactly ascertained it exceeds
100 dollars.

10. The Beaver Dam tract directed to be sold by the trustees.
The following sales of .part of this devised estate were had upon

legal process for debts, as it appears, which were contracted by the
testator.

1. House and lot in Middletown, sold by sheriff in 1809, for 819
dollars.

2. Two lots in Middletown, sold by sheriffin 1810, for 490 dollars.

3. Twenty-five lots in Middletown, sold by sheriff in 1811, for
11 23 dollars.

4. Part of the M'Clenachan farm, by order of orphan's court in
1818, for 3990 dollars.

The following sales of parts of the devised estate were had upon
legal process, for debts contracted by the executors.

5. The Hemperly house, sold by the sheriffin 1815, for 1300 dol-
lars.

6. Part of the M'Clure farm, sold by the sheriff in 1827, for 2595
dollars.

7. Mansion house farm, sold by the sheriffin 1829, for 2200 dollars.
A tract of land in Huntingdon county, being part of the descended

estate in consequence of the decision on the codicil, was sold in 1816
upon an execution for a debt due by the estate for 2510 dollars.

Balances were received by the principal upon some of the above
sales, which were credited to the estate.

The Beaver Dam tract was sold in 1811 by John Cassel and John
Landis, for 2666 dollars 67 cents.

No part of the proceeds of the sale of the Beaver Dam tract has
been traced by the evidence into the hands of John Cassel : he says
upon his oath that the business was transacted by John Landis, who
held the title papers and disposed of the proceeds of the sale. There



Online LibraryPennsylvania. Supreme CourtReports of cases argued and determined in the Supreme court of Pennsylvania (Volume 3) → online text (page 50 of 62)