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be taken to include the farm stock in the event that it remained unconverted at the death of his wife. Viewed in this light, there was manifested by him a very clear and positive assertion of the power to dispose of John's farm stock and that being sufficient to bring into operation the doctrine of equitable election it is immaterial whether the direction to sell was ever carried out.

We are very clear that John was required to elect, but we are not so clear that he has made an election. It is quite true that he has retained possession of the farm stock, has refused to account for it and has generally treated it as his own. However, this was in the assertion of his title to the farm stock and his holding of it now is not inconsistent with the original title to it in him. That is, his possession of it is not unequivocal evidence of an election to take the farm stock in preference to the legacy. On the other hand, he has also taken a part of his legacy for he himself testifies that in June, 1916, he took $750 which covered his advancement of $440.84 and the balance an advancement on his legacy which, of course, did not mature until after the death of his mother. Evidently he believed that he was entitled to both and hence his taking of both cannot be said to have been an election to accept either. At least it has not been clearly shown by the exceptant, upon whom rested the burden of proof, that John had elected with full knowledge of the facts and by unequivocal acts: Cox v. Rogers, 77 Pa. 160. Accordingly we shall enter an order requiring an election at this time.

III

The further contention of exceptant is that the accountant should be charged with interest upon the sum of $750 admittedly withdrawn from the funds of the estate by the accountant during the life time of his mother, Esther Bortz. During the life time of the mother she was entitled to the interest and at her death her right to the interest up to the date of her death passed to her estate. The residuary legatees were not entitled to the interest during the life time of the mother. The estate of the mother is not represented upon this record and, therefore, there being no one before us entitled to the collection of this interest, the claim must be disallowed.

IV.

Exceptant also contends that the accountant should be surcharged with his commissions. It is true that in some respects the accountant has not exhibited that spirit which should animate a fiduciary who is charged with the case of interests not wholly his own. However, a careful and exhaustive reading of the testimony in the case has not persuaded us that we would be justified in disal. lowing his claim. An examination of a large number of adjudications disallowing accountant's commissions convinces us that this record does not show sufficient to warrant such an order.

Now, January 2, 1923, the fifth, tenth and twelfth exceptions are sustained; the first, second, third, fourth, sixth, seventh, eighth, ninth, eleventh and thirteenth exceptions are dismissed. The accountant shall, within twenty days from the date of service of a copy of this opinion and order upon him, elect whether he will retain the farm stock therein referred to or the legacy provided for him in the will of said Elias Bortz, whereupon, after the filing of the same, counsel in interest may, upon notice to the opposite side, present for confirmation, final decree of distribution in accordance therewith.

WILKINSON v. GEIST, (NO. 2.)
Pleadings-Amendments-Form.

Whenever a pleading is to be amended, the proposed amendment should clearly and specifically designate that paragraph and that allegation of the original pleading which is to be altered or amended; and clearly and specifically point out in what respect and to what extent the amendment is to be made.

A party cannot move that his statement "be amended and supplemented in the particulars to which there is a variance and insufficiency between the statement as filed and the facts averred" in the proposed amendment.

In the Court of Common Pleas of Lehigh County. No. 55 January Term, 1922. Harry Wilkinson v. Ida M. Geist. Assuripsit. Rule to Strike off Amendment. Rule Absolute. Leave granted to file new Amendment.

Butz & Rupp, for Plaintiff.

Richard W. Iobst and Calvin E. Arner, for Defendant.

Reno, J., September 18, 1922. In pursuance of our order dated July 18, 1922, plaintiff presented certain amendments to his statement which were allowed. We are now confronted by defendant's motion to strike off the amendments upon the ground, among others, that in the form presented the amendments cause uncertainty in the pleadings. This contention we must sustain. Whenever a pleading is to be amended the proposed amendment should clearly and specifically designate that paragraph and that allegation of the original pleading which is to be altered or amended; and clearly and specifically point out in what respect and to what extent the amendment is to be made. Thus, plaintiff should move to amend a paragraph by designating it by number, and by stating exactly the words which are to be stricken from the paragraph and those, if any, which are to be inserted in lieu thereof, and always stating the whole paragraph as it will read when thus amended. Or, he may move to amend by substituting a new paragraph for the original paragraph or he may move to amend the whole pleading by adding new sections thereto. But certainly he cannot move that his statement "be amended and supplemented in the particulars to which there is a variance and insufficiency between the statement as filed and the facts averred herein" leaving it to the defendant and to the court to conjecture as to what verbal changes are thereby introduced into the body of the statement. An amendment must conform to all the requirements of the Practice Act and since the Practice Act contemplates, amongst other things, certainly and exactness, the plaintiff cannot be permitted to amend in a manner which will frustrate the intention of the act. The defendant is entitled to a clear, unequivocal and certain statement before he can be obliged to answer.

We are not impressed by defendant's further contention that the oath attached to the amendment which purported to verify the original statement as well as the amendment was not a sufficient verification of the statement. The affidavit attests to the truth of the allegations in the original statement as well as those contained in the amendment and is, therefore, sufficient.

Now, September 18, 1922, motion to strike off amendment is sustained; the amendments are stricken off and

leave granted to plaintiff to file new amendments within fifteen days after service of a copy of this order upon him.

WILKINSON v. GEIST, (NO. 3.)

Pleadings-Plaintiff's Statement-Form-Paragraphs to Contain But One Material Allegation-Pleading Law of Anothre Jurisdiction-Practice Act of 1915.

Plaintiff, in a single paragraph of his statement, cannot allege plaintiff's want of knowledge, defendant's failure to communicate material facts, reliance upon representations and warranties, the right to rely upon such representations and warranties, and the state of law in another jurisdiction; nor, in another paragraph, that defendant did not pay a certain mortgage, and that on a certain date a certain sum was due thereon; nor, in another paragraph, the death of one of the joint warrantors, demand of payment, refusal of payment, and the law of another jurisdiction.

In pleading the law of another jurisdiction, plaintiff must aver it in such a manner that a court can determine with certainty, distinctness, accuracy and ease, unaided by other allegations in the pleadings, the exact rule of law, together with its provisos, limitations and exemptions, if any there be. This does not necessarily require pleading the very word of the law, but, if the law be statutory, it would seem to be comparatively easy to plead the statute ipsissimis verbis, and, if the law be decisional, the substance of the decision, not necessarily in the language of the court, should be set forth.

In the Court of Common Pleas of Lehigh County. No. 55 January Term, 1922. Harry Wilkinson v. Ida M. Geist. Assumpsit. Rule to Strike off Plaintiff's Amended Statement. Rule Absolute.

Butz & Rupp, for Plaintiff.

Richard W. Iobst and Calvin E. Arner, for Defendant

Reno, J., December 18, 1922. We are again called upon to determine the sufficiency of plaintiff's statement and for the third time required to hold that it is defective. We shall soon be impelled to believe that the skill of the pleaders is more in question that the justice of litigants' claims: Cf. Rhodes v. Terheyden, 272 Pa. 402. We indulge the fervent hope that notwithstanding our apparent failures heretofore we shall be able to clarify the atmosphere so that a sustainable statement may be filed.

Unquestionably the Practice Act, designed to promote simplicity of pleading, is not to be construel as re

quiring the minutes possible subdivision of every allegation into its least possible analysis of statement in a single paragraph": Fuel Oil Company v. Clarendon Refining Company, 29 Dist. Rep. 805. For, after all, it is not the inclusion of several allegations in the same paragraph which is prohibited but the inclusion of more than one material allegation: Wolfe v. Best, 9 Lehigh C. L. J., 383. But even this liberal construction of the provisions of the act will not justify pleading plaintiff's want of knowledge, defendant's failure to communicate material facts, reliance upon representations and warranties, the right to rely upon such representations and warranties and the state of law in another jurisdiction in a single paragraph. Yet this is precisely what plaintiff has included in the fourth paragraph of his amended statenent. In the fifth paragraph he avers that defendant did not pay a certain mortgage and that on a certain date a certain sum was due thereon. In the seventh paragraph he avers the death of one of the joint warrantors, demand of payment, refusal of payment and the law of the State of New Jersey. Further exposition is not necessary to show that the statement palpably violates the Practice Act but our failure to comment upon all of the violations is not to be construed as an endorsement of those not here specifically mentioned. The pleader, aided by these observations and in the light of the numerous authorities which construe the act, should entirely redraft his statement.

It is also apparent that the averment wherein is set forth the law of New Jersey is merely the pleader's conclusion of the meaning and effect of that law. He alleges in the fourth paragraph of the statement to which we have already referred that:

"Fourth: That the plaintiff had no knowledge of the existence of the said mortgage at the time of the conveyance to him by the defendant of the said premises, and was not informed thereof by the defendant or by any other person, but that as to any and all liens and encumbrances upon the said premises he relied wholly upon the representations, covenant and warranty made and given by the defendant as expressly set forth and contained in the said deed, as he had a right to do under the law of the State of New Jersey, which gives the grantee in a

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