Wheat Export Company, Incorporated, vs. Pennsylvania Railroad Company. did issue a Commission to a Commissioner in another State to take testimony orally, it undoubtedly would set forth and send forward with it a complete resume of what the issue was, in support or derogation of which the testimony was desired, so as to inform the Commissioner and the Court, if necessary, of the Foreign Jurisdiction, in order that they might protect their citizens and the parties by confining the examination to that issue. It follows then that we ought not to compel the witnesses to appear when the avowed purpose for which that appearance is desired is to subject them to an open oral examination, even if it is to be confined to the whole case, (of which we have no assurance), when such a proceeding is contrary to the established administrative policy of our law; and while it has been argued that to thus hold will be a precedent permitting the witnesses to determine for themselves whether or not their testimony is pertinent and, if they decide it is not, to refuse to appear, we do not so view it as a witness has no such discretion, but is bound to appear in answer to a subpoena.

All we decide is that it having developed in this case, after the witnesses had refused to appear in response to a subpoena, that the purpose for which their appearances were desired cannot be sustained in law, it would be useless now to compel them to go through the formality of appearing when such appearance would avail nothing.

In other words, it would be inconsistent and illogical to compel a witness to appear for the avowed purpose of being subjected to an examination in a manner contrary to the administrative policy of our law. Entertaining these views, it is unnecessary to consider the other questions raised. And now, to-wit, February 27, 1919, the prayer of the petitioner is denied.

DOWNING, ET AL. v. HART.

Wills-Construction of-Fee Simple Estate-Advances.

Testator provided in his will, inter alia: "In case of the marriage of my granddaughter, Natalie W. Downing, I authorize the same amount to be advanced to her as her cousin, Isabelle Hunter, as stated above, for her marriage outfit. I further order my executor to transfer to my granddaughter Natalie W. Downing, my house and lot on West Seventh Street, Erie, Pa., for a home. The value of said property as also her marriage allowance, to be charged to her as a part of the portion of my estate that will be coming to her on making the final distribution thereof." HELD, that after the transfer of the house and lot in accordance with the terms of the will, the legatee holds said property in fee simple and not for a term of years and the executor has no further control over the said property.

An attempt by a beneficiary to remove an executor for alleged waste and mismanagement is not an attempt to contest or break testator's will, but is an action in affirmance of it and to protect the rights of the legatee thereunder.

Issue framed upon petition to quiet title. No. 72 February Term, 1919, C. P., Erie County.

Brooks, English & Quinn for Henrietta E. Downing, et al.

J. M. Sherwin, Clark Olds and S. Y. Rossiter for Frederick B. Downing, executor.

Brooks, English & Quinn for Natalie D. Hart.

WHITTELSEY, J., March 4, 1919.

This case was heard before the Court without a jury, by an agreement in writing, in accordance with the Act of Assembly in such case made and provided. From the evidence taken, the following facts are found:

First. Jerome Francis Downing is the common source of title. He died in the City of Erie on the 25th day of June, 1913, seized and possessed of the land in controversy, described in the petition in this case, having made his last will and testament dated March 4th, 1913, which will was duly proved and registered June 30, 1913,

(Downing, et al. vs. Hart.)

in the office of the Register of Wills, of the County of Erie, in Will Book "T", page 468, a copy of which will is attached to the plaintiff's declaration in this case.

Second. The parties to this case are the legatees and devisees named in the will of the said Jerome Francis Downing, deceased, including the Erie Trust Company, guardian of Henrietta Dumm, one of the said legatees and devisees named in said will, who are entitled to participate in the final distribution of the estate of the said Jerome Francis Downing, in accordance with the provisions of the said will.

Third. Natalie W. Downing, the granddaughter of the testator mentioned in his will, was married on the 22nd day of January, 1916, to Melvin S. Hart, and is the defendant in this case, and resides in Schenectady, N. Y.

Fourth. The house and lot on West Seventh Street in the City of Erie, Pa., mentioned in lines 369 to 377 in the tenth section of said will, being the land in controversy, was appraised at the sum of fifteen thousand ($15,000) dollars by appraisers selected by Frederick B. Downing, executor of the will of the testator, and Natalie W. Hart, the defendant herein.

Fifth. That in and by a certain deed dated December 23, 1916, recorded January 3, 1917, in the recorder's office in deed book No. 220, page 260, the said Frederick B. Downing, executor of the will of Jerome Francis Downing, deceased, did convey to Natalie Downing Hart, the defendant herein, the land in controversy, reciting the provisions of the will of the testator, the said conveyance being made subject to a municipal lien for one hundred thirty-five and .30-100 ($135.30) dollars interest and costs filed by the City of Erie for the construction of a sidewalk along the line of said property on Seventh Street, which lien second party assumes and agrees to pay and discharge. Also subject to whatever rights, if any, may exist as to the use of ten (10) feet off the east side for a private alley by adjoining owners.

Sixth. That the consideration for the said conveyance was fifteen thousand ($15,000) dollars, the appraised value of the real estate to be deducted from the distributive share of the said Natalie D. Hart, in the estate of Jerome Francis Downing, deceased, as provided in his will.

Seventh. That in pursuance of the conveyance to her as aforesaid, Natalie D. Hart took possession of the real estate described in the deed. She is now in possession thereof, claiming an absolute title thereto in fee simple, and has offered it for sale.

Eighth. That Henrietta E. Downing, Wellington Downing, Winifred D. Galbraith and Winifred D. Cabanne, by writing filed, disclaim any right, title or interest in and to the land described

(Downing, et al. vs. Hart.)

in the petition in this case, leaving Frederick B. Downing and Frederick B. Downing, executor of the will of Jerome Francis Downing, deceased, and the Erie Trust Company, guardian of Henrietta Dumm, as the only parties plaintiff contesting the defendant's right to the land in question.

Ninth. Natalie Downing Hart, defendant herein joined with Winifred D. Galbraith, Wellington Downing, Isabel Hunter and Winifred E. Cabanne in a petition to the Orphans' Court of Erie County, Pennsylvania, for the removal of Frederick B. Downing, executor of the will of Jerome Francis Downing, deceased, July 2, 1918, to No. 105 May Term, 1918, and upon hearing, the prayer of the petitioner was refused without prejudice, and an auditor was appointed to pass upon the exceptions filed in said case. She also joined in exceptions filed to the first partial account of Frederick B. Downing, executor and trustee of Jerome Francis Downing, deceased, June 5, 1918, No. 13 May Term, 1918.

CONCLUSIONS OF LAW.

First. That the defendant, Natalie D. Hart, is the owner in fee simple of the house and lot on Seventh Street, in the City of Erie, conveyed to her by Frederick B. Downing, executor of the will of Jerome Francis Downing, deceased, by deed dated December 23rd, 1916, recorded in Deed Book No. 220, page 260, Jan. 3, · 1917, subject to a municipal lien for one hundred thirty-five and 30.100 ($135.30) dollars, interest and costs, filed by the City of Erie for the construction of a sidewalk along the line of said property on Seventh Street; and also subject to whatever rights, if any, may exist as to the use of ten (10) feet off the east side for a private alley by adjoining owners, and is in possession thereof.

Second. That judgment must be entered in favor of the defendant, Natalie D. Hart.

DISCUSSION.

This is a proceeding under the provisions of the Act of June 10, 1893, P. L. 415, to try the title of Natalie Downing Hart to a house and lot on West Seventh Street, in the City of Erie, which was conveyed to her by Frederick B. Downing, executor of the will of Jerome Francis Downing, deceased, in pursuance of directions contained in the tenth section of the will of the said Jerome Francis Downing, deceased, which provides inter alia, as follows, to-wit: "In case of the marriage of my granddaughter, Natalie W. Downing, I authorize the same amount to be advanced to her as her cousin, Isabella Hunter, as stated above, for her marriage outfit. I further order my executor to transfer to my granddaughter, Natalie W. Downing, my house and lot on West Seventh

(Downing, et al. vs. Hart.)

Street, Erie, Pa., for a home. The value of said property as also her marriage allowance, to be charged to her as a part of the portion of my estate that will be coming to her on making the final distribution thereof." In pursuance of which conveyance, the said Natalie W. Downing, took possession of the house and lot, and is now in possession thereof.

It is contended on behalf of Frederick B. Downing, executor, that the testator did not intend by the use of the word "transfer" that the title to the property in question should be conveyed to his granddaughter, Natalie W. Downing, but only an estate for years, in the nature of a lease, until such time as the final distribution of his estate should be made as directed by his will.

The word "transfer" is defined by Webster is "the conveyance of the right, title and property, either real or personal, from one person to another; whether by sale, by gift, or otherwise.

It seems quite clear that the testator intended that the title to said property should be conveyed to Natalie W. Downing, as in Section eleven of his will he provides that the balance of his estate that may be left for distribution, that is to say, "the balance that shall remain after making the payments directed by paragraphs 2, 3, and 4 of Section ten of this will, which said balance shall be deemed to include the allowance for marriage outfits, that may have been made to my granddaughters Isabel Hunter and Natalie W. Downing, and the amount that may have been advanced to my son Frederick B. Downing, in pursuance of the provisions of Section nine of this will, and the value of the Seventh Street property in case the same shall be deeded to my granddaughter, Natalie, shall be divided into six equal shares

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The testator was a man of large experience in business, and a lawyer, and in our opinion fully understood the difference between the conveyance of an estate in fee simple and the creation of an estate for years; and if he had intended that the title to the said Seventh Street house and lot to be conveyed to Natalie W. Downing should be limited to an estate for years, he would have so declared in his will.

It would seem that the executor in conveying the house and lot to Natalie W. Downing understood that she was to have the title in fee simple, as shown by the deed executed by him, as the only limitation or restriction it contained is that it is made subiect to a municipal lien for one hundred thirty-five and 30-100 ($135.30) dollars interest and costs, filed with the City of Erie for the construction of a sidewalk on the line of said property on Seventh Street, and which lien "second party assumes and agrees to pay. Also subject to whatever rights if any may exist, as to the use of ten feet on the east side for a private alley by adjoining owners."