ALLEN, J. The defendant was entitled to one dollar, and no more, "for advertising" all the lands included in a single advertisement, and the plaintiff was holden to pay no more than "his just proportion" of the defendant's fees. Gen. Laws, c. 58, § 15; Id. c. 59, §§ 16, 17. The plaintiff's payment of more than his share was not voluntary. He was compelled to pay what the defendant demanded, to prevent a sale. An action of debt for the penalty prescribed by Id. c. 59, § 18, was not the only remedy. Cardigan v. Page, 6 N. H. 182, 193. Judgment for the plaintiff.

In re BROWN'S ESTATE. Appeal of PARK et al. (Supreme Court of Pennsylvania. Jan. 21, 1895.)

CUSTODY OF CHILDREN-GUARDIANS.

On the death of a widow who had been appointed as guardian of the persons and estates of her minor children by her husband's will, the custody of the children will not be taken from their great aunt, to whom the widow's will had committed them, and with whom they are happy and form a united family, though the father designated two of his friends to succeed the widow as guardian on her death, and though the children are given a different religious training by the great aunt than the father intended.

she directs: "That all the estate of which I die possessed may remain in the custody and possession of Messrs. Corbin and Goodrich, who were the employers of my husband, and who have had charge of his money since his decease. I direct that the money remaining in their hands shall be paid out by them for the use of my three children as their necessities may require from time to time. It is also my desire that my said children shall remain in the care and keeping of their aunt Sarah Jane Derr, as long as she may be able and willing to care for them, and that such necessary expenses as may be incurred in maintaining and caring for them shall be paid out of the funds in the hands of Messrs. Corbin and Goodrich. And I desire that they shall remain in their present residence, No. 2018 Adelina street, Philadelphia; but, in case Mrs. Derr should desire to be relieved of their care, it is my desire and I direct that the said children shall be placed in the care of their aunt Mrs. Margaret Price.' It does not appear that Mary Jane Brown, the widow of Joseph Brown and mother of the minors, had any separate estate of her own other than that which she received under the will of her late husband. Joseph and Joseph and Mary Jane Brown left three children surviving them: Margaret, who became 16 years of age October 14, 1893; Joseph James, who became 14 years of age October 8, 1893; and Samuel, who became 8 years of age September

Petition by Sarah Jane Derr, as guardian of Margaret Brown, Joseph Brown, and Samuel Brown, minors, for an allowance of $40 per month out of the estate of said minors for their support and maintenance. From a decree allowing her $30 per month, W. H. Park and William Loan, testamentary guardians of said minors, appeal. Affirmed.

The matter was referred to J. E. Carpenter, as master, and his report is as follows:

"Joseph Brown, the father of the minors, died on the 21st day of November, 1889, having first made his will, in which he left his estate to his wife, Mary Jane Brown, the mother of the minors, 'in trust that she will use, enjoy, and dispose of the same, or such part thereof as, in her judgment, may be necessary or proper, for the maintenance of herself and my children, and, upon her death, then whatever may remain of my said estate shall go to my children absolutely. I appoint my said wife to be guardian of the persons and estate of my minor children during her life, and my esteemed friends William H. Park and William Loan to be guardians of the persons and estates of my minor children after the decease of my wife.' Mary Jane Brown, the widow of Joseph Brown, the testator, survived her husband until December 5, 1890, when she

who is the aunt of Mary Jane Brown, the mother of the minors, came to live with Joseph Brown and his wife and children at Mr. Brown's request, and nursed and cared for both Mr. and Mrs. Brown, who were sick with consumption, until Mr. Brown died, and afterwards she continued to live with Mrs. Brown and the children until Mrs. Brown died, and since then she has continued in charge of the minors until the present time, supporting and keeping the family together, partly with funds contributed by the custodian of the estate of the minors, partly from the earnings of two of the minors, and partly from her own funds. Shortly after the death of Mrs. Brown an effort was made by Messrs. Loan and Park, the guardians under Mr. Brown's will, to obtain the custody of the persons of the minors. Mrs. Derr, the aunt to whose custody Mrs. Brown had in her lifetime, and afterwards by her will, committed the minors, declined to deliver them into the care of the guardians; whereupon a writ of. habeas corpus was issued at the instance of the guardians under the father's will, the minors were brought into the court of quarter sessions, and were, by the order of that court, remanded to the custody of the aunt, Mrs. Derr.

"The minors are satisfied with the present arrangement, and happy in their present

death, which occurred December 5, 1890, remanded these minors to the care of the petitioner, so that she has had them in her custody by the actual order of that court. The master further reports and recommends that a proper allowance be made out of the funds of the estate of the minors, in the hands of the guardians, to the petitioner to be devoted to the proper care, maintenance, and education of the minors; and inasmuch as the guardians have offered to take charge of them for the sum of $30 per month, and as two of the minors are able to contribute toward the support of the family, the master believes that the petitioner will be able to support the minors with economy upon $30 per month, which he accordingly recommends as an allowance to be paid by the guardians out of the estates of the minors to the petitioner, until the further order of the court for the purposes aforesaid. The master further reports and recommends that the sum of $30 per month from December 5, 1890, the date of the death of the mother of the minors, until the present time, be allowed the petitioner for money of her own already expended by her in this behalf, or borrowed by her for this purpose, or to pay rent accrued and not paid, less the sum of $465, already received by her from the estates of the minors."

PER CURIAM. The facts and circum

stances of which the decree in this case is predicated are clearly and concisely presented in the report of the learned master, whose findings of fact appear to have been fully warranted by the testimony. We find no error in his conclusions, the most important of which is that "the best interests of the minors will be preserved by allowing them to remain with their aunt, the petitioner, with whom they are happy, and form a united family." In the exercise of a sound discretion, we think the court was clearly right in dismissing the exceptions and entering the decree complained of. For reasons given by the learned master, the decree is affirmed, and appeal dismissed, with costs to be paid by appellants.

In re WAESCH'S ESTATE. (Supreme Court of Pennsylvania. Jan. 21, 1895.)

HUSBAND'S LIABILITY FOR WIFE'S FUNERAL ExPENSES-ILLEGITIMATE CHILDREN-INHERITANCE.

1. The husband is primarily liable for the funeral expenses and expenses of his wife's last illness, and he takes his distributive share of her estate charged with them.

2. Act April 27, 1855 (Purd. Dig. p. 934, pl. 40), which enables illegitimate children to inherit from their mother, comprehends illegitimate children residing in foreign countries or states as well as resident illegitimate children.

Appeal from orphans' court, Philadelphia county; Hanna, Judge.

On account of John Waesch, administrator, etc., of Eva Waesch. From the decree on final distribution the administrator appeals. Affirmed.

John Waesch, the administrator, was also the husband of Eva Waesch, the decedent. They had been married and cohabited in Philadelphia for 10 years prior to her death, with the exception of about 6 months, while she was confined in the insane department of the Philadelphia Hospital. Mrs. Waesch died July 5, 1892, intestate, leaving to survive her the appellant, her husband, and, as it afterwards appeared, an illegitimate son, Johann Herrmann, aged about 45 years, and who resides in Germany. The account of the administrator showed that the decedent left an estate amounting to $1,113.48, and the same was claimed by the husband, upon the ground that the son, being illegitimate, and a nonresident, and no citizen of this commonwealth, was not entitled to inherit from his mother. Upon the other hand, the said Johann Herrmann claimed to inherit one-half of the estate left by his mother, the decedent; and, further, that all the expenses incident to decedent's sickness and death should be borne by the appellant's (the husband's) share of his wife's estate. The court below overruled the claim of the appellant and allowed him one-half of his wife's estate, but charged it with all the expenses incurred by his wife's sickness and death; so that his share was reduced from the half, or $578.46, to $358.71, while the son's share was given to him freed and discharged of and from any charges

whatsoever.

The following exceptions were taken to the ruling of the auditing judge: "(1) Because the auditing judge erred in charging against the distributive share of John Waesch the

entire expense of the decedent's board and funeral expenses. The same should have been borne by her estate. (2) Because the auditing judge erred in awarding the sum of $578.48 to Johann Herrmann, the illegitimate son of the decedent, who is a resident of Germany, as he was not contemplated by the act of 1855 (Purd. Dig. p. 934, pl. 40)."

The following is the opinion of Hanna, P. J., overruling the exceptions: "As to the first exception, little need to be said, as the liability of the husband for the funeral expenses of his wife, medical attendance upon her, etc., even although she has separate estate, is too well settled to admit of argument. He is primarily liable, and her estate is liable only in case he is insolvent. But, if any balance remains for distribution, as in this case, then the expenses he should have paid will be deducted from his distributive share. Costigan's Estate, 13 Phila. 264; McCormick's Estate, 4 Kulp, 15; Wanhop's Estate, 29 Pittsb. Leg. J. 256; Darmody's Estate, 13 Phila. 207; Wells' Estate, 20 Phila. 8. The remaining exception is to the award to the illegitimate

son of decedent, upon the ground that he is a nonresident foreigner, living in Germany, and not contemplated by the act of April 27, 1855 (Purd. Dig. 934, pl. 40). The act provides, not only that illegitimate children shall take, and be known by the name of their mother, but they shall respectively have capacity to take or inherit from each other's personal estate as next of kin, and real estate as heirs in fee simple, and, as respects said real or personal estate so taken and inherited, to transmit the same according to the intestate laws of this state. It will thus be observed the act is general, and comprehends all illegitimates, and makes no distinction between residents or nonresidents within the state. If such had been the intention of the legislature, it certainly would not have been left the subject of conjecture nearly 40 years. And, in the absence of any such expressed intention, it is not within the province of the courts to assume that the act was intended to apply to and include only illegitimate children living within the commonwealth. As we cannot so construe the act, the award was properly made. The exceptions are accordingly dismissed, and adjudication confirmed."

Chas. F. Linde, for appellant. Gustavus Remak, Jr., for appellee.

PER CURIAM. Both of the questions presented by the specifications of error were rightly decided by the orphans' court. unnecessary to add anything to what has been said by the learned president of that court, and we therefore affirm the decree on his opinion. Decree affirmed, and appeal dismissed, with costs to be paid by appellant.

WILKE v. HARRISON et al. (Supreme Court of Pennsylvania. Jan. 21, 1895.)

MASTER AND SERVANT - WRONGFUL DISCHARGEDAMAGES.

In an action by an employé for wrongful discharge, brought before the expiration of the term for which he was employed, it is proper to refuse an instruction that plaintiff's recovery must be limited to the amount which would have been due him at the commencement of the suit, less the amount he could have earned since his discharge.

Appeal from court of common pleas, Philadelphia county.

Assumpsit by William Wilke against George L. Harrison and others for breach of an oral contract of hiring. There was a verdict in plaintiff's favor for $3,112, and from a judgment thereon defendants appeal. Affirmed. The following is the charge of the court (James G. Gordon, J.):

"The plaintiff in the case is a skilled, edu. cated engineer, whose business is that of a chemical and mechanical engineer. He was engaged to work for the defendants many

years ago, going there at a salary, I believe, of about $1,800, increasing his knowledge, his skill, with advantage to himself and his employer, and met from time to time with increasing appreciation, as evidenced by in creasing wages, until, at last, in 1886, his employers gave him a five years' contract at a salary of $3,000 a year. It would appear by the terms of that contract, so far as we know it, for it is not offered in evidence, although it has been alluded to by the witnesses,-that under the terms of that contract there was no stipulation whatever as to notice in case of discharge. The contract, as I said, is not offered in evidence, but a copy of it was handed to the plaintiff, and he was asked to point out any place in that contract where it stated he was to receive notice, and he said he could not do so. He claims, however, that, at the termination of that contract within three months afterwards, two members of the firm of Harrison Bros. & Co. made a verbal contract with him in which they agreed to employ him for ten years at a salary of $4,000 a year for the first year, and an increase of $250 every succeeding year, and to give him one year's notice to leave, or to give him one whole year's wages. He says that contract was made mainly with Mr. Thomas Harrison, in Mr. John Harrison's presence, and my recollection of what he said exactly upon that subject is that he demanded those terms, and that they said, 'All right, go ahead, and when Mr. George L. Harrison comes back we will tell him.' It is unfortunate that the plaintiff has to rely upon his recollection for a contract of such an important character. It is important, because your experience as jurors must have shown you that the greatest number of the suits brought in this court come from a failure of the parties to reduce to writing, that would be permanent and unmistakable, just what was agreed upon. The plaintiff relies on a verbal contract that he was to be employed for ten years, the first year at a salary of $4,000, and $250 additional every succeeding year, and that twelve months' notice of its termination should be given him, or one year's salary paid him. It did appear from the evidence that he was in communication, before the making of that contract, which, he says, was the 15th of March, 1892, with Mr. George L. Harrison, who was then abroad, He seems to have recognized Mr. George L. Harrison as the person whom he was to treat with for the new contract which he desired, and who was to make its terms, and who was the potential, or, at least, the active, man in such matters; for he wrote at least one or more letters to Mr. Harrison, and received a number of letters from Mr. Harrison when he was in Egypt and other places in Eastern Europe. It is a matter that you must notice in this correspondence, -what force is to be given to it is entirely for you, but it is a matter that you must no