Long v. Book.

A lease in writing may be terminated by parol where it is accompanied by a surrender of the term by the tenant, and an acceptance thereof by the landlord: Auer v. Penn, 92 Pa. 444. Such recission need not be supported by an express consideration, the agreement of one party being sufficient consideration for that of the other: Kiester v. Miller, 25 Pa. 481. Where a new agreement is made, the tenant remaining in possession, such new agreement is a recission of the old lease and a surrender of the term. The new agreement takes the place of the old lease: Denison v. Wertz, 7 S. & R. 372; Carnegie Gas Co. v. Philadelphia, 158 Pa. 317.

It is clear from these authorities that there was no error in submitting to the jury the question whether the lease between the parties. was cancelled and a new contract substituted for it.

Johnson v. Johnson, 35 L. L. R. 385, cited by the defendant, is not an authority for his position that there was no surrender accepted by the defendant because the plaintiff remained on the premises. In that case there was no evidence to show acceptance by the landlord of the surrender of the lease. In this case there was proof that the surrender was accepted by the defendant. Nor does the case of Gibson v. Vatter, 162 Pa. 26, support that contention. That was a rule to open judgment entered on a warrant of attorney appearing in the lease. It was held that the weight of the testimony to show that the surrender of the term had been accepted was not sufficient to jusify the opening of the judgment. The cases cited to show that a written agreement cannot be changed or modified by parol have no application, as no such question is involved in this case.

This we think disposes of the only questions that are involved in the nine reasons for a new trial, as the other matters complained of in them were questions of fact for the jury, which it is conceded were properly submitted to them, and their findings on all these questions is fully supported by the testimony. The rule for a new trial is, therefore, discharged.

Orphans Court of Lancaster County

Estate of Joseph Wacker, dec'd.

Wills-Distribution-Lapsed legacy-Partial intestacy.

Where a will directs that the rents of the testator's real estate and also the residue of his persosal estate be divided among his children without further disposition of the shares of any who should die, there is an intestacy as to the share of a son who died before the testator, and the children of another deceased son of the testator will participate in the distribution of the intestate portion of the estatealthough the testator had by codicil directed that the share of the latter deceased

Estate of Joseph Wacker, dec'd.

son should go to the testator's other children, and not to this deceased son's children.

An inheritable right cannot be defeated by implication.

Adjudication. February Term, 1920, No. 3.

Wm. H. Kready, for accountants.

Redmond Conyngham, for legatee.

February 26, 1920. By SMITH, P. J.

Joseph Wacker died November 26, 1912, leaving a will. There survived him a widow, Mary, and four children: Charles, Joseph, William and Mazie, and six grandchildren: Charles, Frank, Fred, Joseph, Anthony and Miriam, the children of his son, Anthony, who died November 22, 1908, and who also left a widow, whose name is Mary. A son, Frank, died unmarried and without issue December 4, 1911. The testator's widow, to whom he had given the use of his estate for life, is dead.

The account submitted is of income alone, the rental of what is known as the "Swan Hotel" and numbers "20 and 22 E. Vine St." in the City of Lancaster, Pennsylvania. As to the properties distinguished by numbers, the testator appears to have died intestate. By prorateing the credits between these properties and the Swan Hotel, the balance as to them is found to be $125.74, and thus making $1135.67 the balance as to the Swan Hotel, for which the executors are accountable. As to this balance the testator provides as follows:

“*** I order and direct my hereinafter named executors or the survivor of them to rent or lease the Swan Hotel property and the South Prince Street property from time to time, and out of the rents pay the taxes, insurance and repairs, and the net rent thereof I direct, one half annually to be paid to my daughter, Mazie Wacker and the other half in equal shares to my sons Anthony, Frank and William. I further order and direct that my daughter Mazie Wacker shall have the power at any time to direct the executors or the survivor of them to sell the Swan Hotel property and the South Prince Street Store property and I empower my said executors or the survivor of them to sell said premises either at her direction during her lifetime or after her decease at public sale and make good and lawful needs to the purchasers thereof and the net proceeds of the sale of said premises I give and bequeath in equal shares to my six children, their heirs and assigns except that the share coming to my son Frank is to be retained by my said executors or the survivor of them, they to invest the same and pay over to my said son Frank the net income thereof annually during life and at his decease the principal to his children in equal shares."

The one-third of the one-half of "the net rent" bequeathed to Frank lapsed.

Estate of Joseph Wacker, dec'd.

The only residuary provision found in the will is in part as follows: "The residue of my personal estate I give and bequeath in equal shares to my sons Anthony, Frank and William and my daughter Mazie Wacker."

It will be seen that these legatees are the same as those to whom the rents are bequeathed, also that no provision has been made for the disposition of any legacy in the event of the death of any legatee. Survivorship was not contemplated. Reconciling this lapsed legacy with the residue of the personal estate, the one-fourth thereof can not lodge short of intestacy, because of the death of Frank to whom was bequeathed one-fourth of the remainder. His death made a hole in the structure of the remainder through which to intestacy one-fourth of the rents bequeathed to him fell.

The testator added a codicil to his will, of which the following is the essential part:

"*** Whereas in my said will I have given and bequeathed unto my son Anthony E. Wacker (who is since deceased) certain specific legacies and bequests. I now do hereby declare that my will is that said legacies and bequests are to be null and void and no part or portion shall be paid to his said Anthony E. Wacker's children, but the same is to be distributed to my other children as provided in my said will."

As an inheritable right cannot be defeated by implication, the children of Anthony will participate in the distribution of that part of the estate of which Joseph Wacker died intestate (Habecker's Estate, 25 LANCASTER LAW REVIEW 202; 26 LANCASTER LAW REVIEW 100; 43 Sup. Ct. 86). * * * * *

Distribution was decreed accordingly.

SUPERIOR COURT DECISIONS.

Saturday, February 28, 1920.

Commonwealth v. Hilton. Affirmed.

v.

Kopeke, Appellant 7. Schwartz.

Affirmed.

Shaub to use of Agricultural Trust Co., Appellant v. Brubaker and

Shaub. Appeal dismissed.

Agricultural Trust Co., Appellant v. Shaub. Reversed.

Morrison v. Altland, Appellant. Reversed with a new trial.
Martin, Appellant v. Hoshauer. Affirmed.

Where a testator's will expressed a desire that his wife and children should occupy the home property after his death as long as they were willing to do so, making specific directions for the division of the income, and authorized them to direct his executors to sell the property when they desired, and subsequently, after one of the four children had conveyed his interest to his mother, the executors and all the parties interested executed a deed for the home property to another of the children, but the husband of the widow who had remarried refused to join in the deed, he had no interest which could affect such title and sustain an action of ejectment after her death.

As all the parties were then of full age, it makes no difference how the purchase money was distributed so long as the legatees agreed to it and were satisfied. Rule for judgment for plaintiff n. 0. V. March Term, 1919,

No. 51.

F. Lyman Windolph and Frank S. Groff, for plaintiff.
H. Edgar Sherts and B. F. Davis, for defendant.

January 17, 1920. Opinion by LANDIS, P. J.

This same case was before us on a rule to enter judgment on the pleadings in favor of the plaintiff, and in an opinion filed August 23, 1919, reported in 36 LANC. LAW REVIEW 251, we discharged that rule. Therein we think we have set forth all the material facts which are necessary for a proper disposition of the case, and it is, therefore, unnecessary to again recite them.

It is conceded that the executors of the will of Peter Sheaffer, deceased, executed a deed for the real estate now in dispute, and that, besides his executors, all of the parties who at that time had any immediate interest therein or in the proceeds joined, so as to signify, in accordance with the terms of his will, their desire that this property should be sold.

This deed was left in the custody of H. Edgar Sherts, Esq., attorney for Edgar M. Sheaffer, and it has been in the possession or control of said Edgar M. Sheaffer ever since. That of itself was a sufficient delivery. The plaintiff at that time had at best only an inchoate interest in any real estate owned by his wife, dependent upon whether or not he survived her, and in our judgment he had no interest at all which could affect the title made by these executors. Mrs. Miller not only signed the deed as one of the executors, but she also requested and consented to the sale. As all parties were then of full age, it made no difference how the purchase money was distributed, so long as the legatees agreed upon the method, which was carried into effect, and were satisfied with the distribution. Perhaps they could have agreed to treat the land as theirs, but they did not do so.

The case of Battersby v. Castor, 181 Pa. 555, cited by counsel for the plaintiff, is not in point. There the power to sell was discretionary

VOL. XXXVII, No. 20

Miller v. Sheaffer et al. (No. 2).

and was never exercised. The parties in interest chose to treat the land in question as their own, instead of pressing for its conversion, and the title to the same acquired by the mother from her children was, therefore, deemed valid, But the main point in the case was, that the balance in the account filed by one of the executors was not, after the length of time which had intervened, a lien upon the land, and, for this reason, the sale under the writs of execution conveyed no title to the purchaser.

We are of the opinion that the plaintiff had no title to the onetwelfth interest in this real estate, and that the verdict was properly directed in favor of the defendants.

The rule for judgment for the plaintiff non obstante veredicto is, therefore, discharged.

Rule discharged.

Orphans' Court of Phialdelphia County

Hoch's Estate.

Wills-Construction-Direction to sell real estate-Conversion

of debts on real estate-Fiduciaries Act of June 7, 1917.

Testator provided that his residuary estate, real, personal and mixed, was to be sold by his executors and the proceeds divided in varying proportions among certain legatees. More than a year after his death some of his real estate was sold by the executors and the proceeds brought into their account, which showed the estate was insolvent: Held, that debts for which no action had been brought within one year from the date of the death, as required by the Fiduciaries Act of June 7, 1917, P. L. 447, were entitled to share in the proceeds of the real estate so sold pro rata with those for which suit had been brought.

Exceptions to adjudication.

October Term, 1918, No. 767.

William F. Brennan, for exceptions.

Ehrlich & Archbald, Green & Quinn and Arthur E. Weil, contra.
March 27, 1919. Opinion by LAMORELLE, P. J.

After directing the payment of his debts and funeral expenses and making a series of specific bequests, Jacques Hoch provided that his residuary estate, real, personal and mixed, was to be sold by the executors of his will and the net proceeds thereof, after the payment of a legacy of $2000, divided in varying proportions among his nephews and nieces, sister and brother. He died July 2, 1917.

More than a year thereafter some of his real estate was sold by the executors and the proceeds thereof brought into their account. The estate is insolvent; there will be nothing for the legatees.

The main question to be determined on exceptions to the adjudication is whether debts, where "no action for the recovery thereof has been brought within one year from the date of the death, have any claim whatsoever against the proceeds of the real estate so sold.