Theresa Oberly, widow of Joseph F. Oberly, deceased. Their children: William F. Oberly, Mary Agnes Oberly, and Paul Edward Oberly,

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of ; Mt. ; j j : . [ termiued sooner upon the happening of the contingency ot her remarriage. No power is given to her to sell or dispose ot tho laud in auy way, nor does the Ian- Opinions Filed By Judges ' S. u »s» used im P art such . a * lr .° u *, Iirot Meily and Simonton. abilit> that the testator intended htr to ' have the fee. I Ou the contrary; after the gift of the roROBSTEucma ALEGA1 p EOCffiS :!^±-:/-^ S| ,"•£ | In our opinion the plaintiff undertook to One of the dae.ti.mi Decided By Jadge ' convey a greater estate in the land than j J s • \\c* a.iri » linrrtf.Trrt innum*»nr IU PT1- Eimonton-Judge Meily Gives a Per Curiam on a Case Stated—Bightt of tan Wife Under a Will in ihe Oberly Case. Some time last fall a constable appearLebanon: j e d at. a certain house iu this citv.tenauted by Djvid C. 1'eirl'er with a l' ; warrant, to levy on 1'eiffer's goi »f j »as :U home a"t the time and r He alliances. admit the constable. an entrance through the cellar audlevieit of i on the goods, six days later when be came to sell the goods Peiffer and his tannly were away from home and the house was locked so that the constable eould not enter. Hereupon Peiffer was arrested upon the charge of obstructing a legal process, aud last December the j ! case was tried before Judge Simonton in this couit. The defendant was found guilty. Later, ou a motion iu arrest of judgment, his attorney P. U. Keinhard, esq ,aud District Attorney Seltzerargutd the case before Judge Simnutuu, at llar- risburg, who this morning filed the following-opinion: Bv THE COUUT: The defendant was indicted uuiler section eight of the He- visid Penal Code, (Purd 40'J pi. 12), for obstructing the execution of legal pn ce>s, tho charge being that he had ol structed a constable iu tne service an execution of a landlord's warrant to di: tra:u for rent. The farts were, submi led to the jury, who found tho defendai guilty, whereupon a motion was made o nis behalf-fur arrest of judgment, forth reason, as stated in the uiot'ou, that "ob structiug an officer in the execution „. landlord's warrant is not an indictabl oileuce, a laudloid's warrant not beiu legal piosi-ss under the constitution o this Commonwealth." The English statute, i Will. & M., substantially the same as the Peuusylva nia act ol .March 21. 1772, Sec. 1, Pure 1012, (ISm. L. IV70), and both lequir the sheriff, under-r-heriff, or coustabl "co be aidiug aud assisting" in apprais :UK tbe goods distrained; but "the law only requires their interference after thi an appraisement and sal become ueeessary:" McElroy vs. Dice 17 Pa. 109; Wells vs. Horuish, :: P. & W 'IU. These eases decide that a constable levying a. distress under a landlord' warrant is liable iu damages for an over jlaim ol rent by a landlord, and in Com monwealth vs. Sheppard, 2 Clark 89;!, i was decided that when a constable actL iu the collection of rents by distress, ht acts officially, aud he and his sureties are liable lor money collected, or neg lecied to be collected, by him under : landlord's warrant. Iu this state ol the law there might be some strong reasous (jivui why a con stable should ho protected from being obstructed while levying aud executing: landlord's wararnt. The U\v, however, seen:s to hive settled otherwise. Tht English Bankruptcy Act of 18C9 provides provides that "Tne court may, at auy time after the presentatiou of a baukiuptcy petition against, the debtor, restrain further further proceedings iu any action, suit, exo- cejliun, "Or other legal process, againsl the deDtor, or may allow such proceedings proceedings as the court may think just;" and in the easeof Faushaw & Xorion, L. K. 11 Eq (!li>, ou appeal from an order of tne court restraining proceeding under a landlord's warrant, issued alter the com oieucemeut of proceedings in bankruptcy, bankruptcy, Sir.Times Bacon, C. J , said, ''I think it quite plain that a distress for rent cannot be considered to be included in the expression 'legal process/ in as much as no legal process whatever is necessary; and the landlord may, if he thinks proper, distrain with his own hands. As little can it be called an exe. cu'ion, for au execution is tbe result of a judgment which has been recovered in « court o' law, but to a distress uo legal proceedings whatever are ntces sary. i am of opiuiou, iherelore, thit the aopelUuts areentitled to retain the goods distrained; and the injunction must be dissolved." This case was decided in 1871, and al- thouuh so much of the English statute referred to above as required a sheriff, uuder-shoiill', or constable, to be aiding nd assisting at a distress for rent, was repealed March 24, 187:1, this case must liave been decided ou tbe law as it stood before the repeal, which is substantially the same as the law of Pennsylvania at present. The same point was decided in the same way in Ex Parte Harrison, 13 Q B. l)iv. 7o3; and iu Ex Parte Hill, B Ch. Div. f',:j, which is cited at length in Ex Parte Harrison, and distinguished from t for the reason that tho distress iu ques- iou was made on a warrant which was required to bo issued by a justice of the :>i'ace, and for this reason was bold to be legal process. The only case on this subject which we lave beeu able to find in this state is Commonwealth vs. Leech, 27 Pitts. L. I. 233. where a defendant having been nriicted for obstructing the execution of a landlord's warrant under the section of Penal Code above referred to. Bailey, J., directed him to be acquitted, holding hat "the obstruction of the'executionof a landlord's distress warrant is uot iu- lictable under Sec. 8 of the Penal Code: t is not 'process' within the meaning of ,he statire." In Oilman vs. Bird, 15 Fla. 140: Por- er vs. Vandercook, 11 Wis. 70; and Bailey vs. Williams, C Ore. 71; it was de- ided that where au attorney issues a umtnons to a defendant, without the ntervenfon of the court, in accordance fith the practice in these states, such .ummons is not legal process. See Whitney Whitney vs. Blackburn, 17 Ore. 857, 111 Am. •VK). On tue authority of tho cases above ited, and especially the English cases, he held and therefore judgment is en teted in the case stated in favor of the defendant Kennedy vs. Kennedy. 13!i Pa. St. 327: Tollweiller's appeal, H>2 Pa. St. 381: Cooper vs Pogue,92 Pa. St. 254, and Long vs. Paul, 127 Pa. St. 4oG " j F. E MEII.Y, P. J. with a landlord's ! ntvoiiCE TESTIMONY. 'ods, who ] Ma j_ p G _ Mark; commissioner ap- el used to ; p O j utl .d by the court, yesterday after- I he latter gained j uoou took testimony in the case of Peter I Lesher vs. Mary Jane L?sher, in divorce, for desertion. J. M. Fuuck is attorney for libellaut. LETTERS TE'TAMENTAKY. Deputy Register Douley yesterday afternoon granted letters testamentary in the estate of Mary Jane Ellis, late of Derry township. Dauphin ceunty, deceased, deceased, to J. H. Balshach. is situated in this city. The property THEY ARE FOR EVERY ONE which are directly in point, and we have inherited directly rom England, the motion in arrest of udgment is sustained, aud the defendant defendant is ordered to be discharged without day. .1. W. SIMONTON, P. J. Tht. r esa Oberly vs. John II. Kiegert, ease stated. By the Court: | The plaintiff, the widow of Joseph F. j Oberly, deceased, agreed to c >nvey to [ the defendant a lee simple title to certain real estate which she holds by virtue of the following provision contained in the wil! of her deceased husband, viz: "1 give and bequeath to my dearly beloved wife Theresa, all my real and personal property and all tbe furniture that is in the bouse Ht the time ot my death, during during the period of her natural life, providing providing the stay my widow, and after her death what is left shill be evenly divided among my three children, William F. (ibeily, Mary Agues Oberly and Paul Edward Obsrly." The contention on the part of the plaintiff is that under the provision quo'eri he took a fee on the land, i Whether this be so depended on tbe in teut j,, U of tho testator as evidenced | words used in his will. The rule of law | is that the heir at-law can only be disinherited disinherited by express device or necessary 'replication, aud that implication must THESE WORLD'S FAIR ART PORTFOLIOS, They Are For You-Do Yoi Want Them--30o Superb Photographs. Xos. 7 and 8 of the Magic City World' Art Portfolios will be ready fur distribu tiou on Wednesday morning of this week Bring alons; your coupons and get them With the appearance of each number o this admirable work the best .judges be come enthusiastic and unanimous in th declaration that of all the excellen things that are being oll'ered, Magic City is of the greatest paramount value, of th tbe most instructive character, excelling all others in execution. There is yet time for those who hav: failed to secure the portfolios regularly or those who have lately begun, to secure the series by taking advantage of the fact that all the back numbers are stil" on hand. But the distribution will not, cannot go ou forever; so save your coupons anc bring them into the NEWS office aud secure the back numbers as well as the latest put. Remember, three coupons and 10 cents secures one part. In a few days we will announce tho cost oi binding this beautiful work and you will be astonished at how cheap we are going to do it. There will probably be three styles of binding, silk clotb, lalf morocoo aud full morocco, and the iuest won't cost more than a dollar. The National Guard. Gen. Gobio, Commander of the Third brigade, National GaardTlefnihTa morn ug ffcr Harrisbure, where he held i consultation with Gen. Greenland of the Third Brigade, aud Gen. Wihy, of the Second Brigade, who accompanied Ad utaut Greenland and party to Gettysburg oday.. The purpose of the visit is to eaubji final decision as to selecting it as an eiicampmetit this summer. The ploughed ground being unfit and if no er space being available, Mt. Gretna may yet be chosen. Gon. Gobin returned this afternoon 'rom Harrisburg where he met Gen. SViley and Gen. Greenland and talked >ver tho encampment, lie states that he Governor is in favor of Gettysburg, hat Gen. Schofield, commander of the j. S. army, and oihar regular officers Icsire to visit there during tbe oneamp- Tjeut. Jf au additional water supply is guar nteed the encampment will go there this eason. Gen Gobin expects to eocamp lis Third brigade iu rear of Seminary lidge, occupied as a line by the Rebel rmy. Five Milen in Three Hours" The roads throughout the c.iunty are rifted very much and yesterday they were almost impassable. A gentleman esiding at Ileilmandale came to this ffice in tho afternoon and said that it ook him three hours to drive five miles n a sleigh. He related that he uever be- ore Lad such a rough experience on the ublio highway. Sang a Ba»s Colo. The "Chronicle aud News," of Allen- own, of yesterday afternoon says of the on of ex Senator Lantz, this city: H. K. Lantz, of the class of '96, of luhlenberg College, saug a bass solo Cavalry," by Rodney, in St.. Michael's utheran church last night." The Next Entertainment. Judge William B. Green, of Brooklyn, [ew York, will appear in the chapel of icbauon Valley College on Wednesday veniug, March 7, 1894. Judge Green as a high reputation as one of the best loiters and story tellers on the platform. Of Interest to Ladies. The undersigned has this day opened dress making parlor with her sister, Irs. Mansfield, at No. 41 North Eighth reet, Lebanon, and is prepared to do alt inds of fashionable dress making. Work nd fit guaranteed. Take side entrance. MAGC.IE BJIUKAKKH. WORLD'S FAIR ART PORTFOLIOS PORTFOLIOS No. 1 No 2 No. 3 No. 4 No. 5 No. o s ARE NOW READY! be such a strong probability that an in- tvution to the contrary can not bf) Eup«n posed, Here the testator in express words E' ves n ' s w 'f fl a ''f e estate, liable be de- Nos. 1 and jj- ^, >"•>. a & zen tie ago 70

Clipped from
  1. Lebanon Daily News,
  2. 27 Feb 1894, Tue,
  3. Page 1

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  • — Theresa Oberly, widow of Joseph F. Oberly, deceased. Their children: William F. Oberly, Mary Agnes Oberly, and Paul Edward Oberly,

    Clipped by Thommy63 – 20 Apr 2013

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