real estate situate in another state converts such real estate into personal property when, but only when, that power is exercised by the executors: Dalrymple's Estate, 215 Pa. 367.

It is apparent, therefore, that the question of conversion lies at the very threshold of the case. If conversion is directed by the will or is rendered necessary thereby or a discretionary power to convert therein contained is exercised, the property so converted, or the proceeds thereof, is subject to the tax, and, in that event, the other question as to the power of the legislature to tax the transfer of the land as land is entirely academic.

Unfortunately, we are not able to determine from the record now before us whether a conversion will occur. The will, which has been placed in our possession, (although it is not properly a part of the present record, the appeal having brought up only the appraisement), certainly does not imperatively direct a conversion but it does authorize the executors to sell real estate and provides that pecuniary legacies shall be payable out of real estate if the personal estate proves insufficient for that purpose. Hence, a conversion is possible. It appears, also, from a statement made by appellee at bar, that the pecuniary legacies aggregate $380,000, that the personal property, exclusive of specific bequests, aggregates $350,000, and that the debts aggregate $45,000. It would seem, therefore, that in the final settlement of the estate, a conversion will be found necessary and that the executors will be required to exercise the power confided to them.

But in this state of the record, we cannot now determine, with any degree of accuracy, whether a conversion will surely take place. A determination of that question now would rest merely upon an assumption of facts not upon this record. At this time, such determination would be founded upon conjecture only. As already indicated, we must decline to determine the larger question of the state's power to tax the unconverted land until it is definitely settled that the terms of the will can be carried out without an actual conversion of the New Jersey real estate. We shall, therefore, dismiss the present appeal without prejudice to the right of either party to renew the question when the settlement of the estate has

proceeded so far that a proper record will disclose the necessary facts upon which to found a conclusion. Our own judgment is, (but the parties are not bound by this suggestion) that the matter can be best raised by exceptions to the final account of the executors and the matter may then be renewed upon exceptions to the report of an auditor.

Now, December 3, 1923, appeal dismissed without prejudice.

YAREMA v. SCHUSTER.

Mecnanics' Lien-Striking Off-Contract-Contractor and Owner-Detailed Statement-Substantial Performance-Act of June 4, 1901, P. L. 431, Sections 1, 2 and 30.

The claimant under a mechanic's lien, on a written contract with owner was to be paid a specific sum when the work was entirely complete. He alleged that he completed the work excepting a small portion left undone, at the request of the owner.

On petition to strike off the mechanic's lien, Held, that under the Act of June 4, 1901, P. L. 431, Section 30, a failure to complete the work in minor particulars operates as a defence only to the extent necessary to repair or complete the work, it to be determined at the trial on the scire facias.

The averments relating to the failure to complete the work was not intended as supporting a claim for damages for any act of interference by defendant.

Under said Act, Sections 1 and 2, an averment claiming damages arising out of the interference of defendant with the claimant would be ineffectual for that purpose and would be disregarded.

Where the lien is based on a contract with the owner, a detailed statement of kind and character of labor and materials furnished need not be set out in the lien.

In the Court of Common Pleas of Lehigh County. No. 25 June Term, 1923. M. L. D. Thomas Yarema v. Anton Schuster and Theresa Schuster. Mechanic's Lien. Petition to Strike Off. Petition Dismissed.

Edwin H. Stine, Thomas F. Diefenderfer and Oliver W. Frey, for Plaintiff.

James F. Henninger, for Defendants.

Reno, J., December 3, 1923. Yarema filed a mechanic's lien for labor and material furnished in the con

struction of the cellar and foundation walls upon defendant's premises in pursuance of a written contract which provided that claimant should be paid $824.50 "when the said work is entirely complete.' Claimant alleges, in his lien, that he furnished all the labor and materials, "excepting only that a small portion of that part of the foundation wall, extending above the ground was not altogether completed, the uncompleted portion being a strip about twenty-four feet in length in that section of the wall abutting on Grant Street, the same having been left open and unconstructed, for use as a driveway, at and upon the request of the said Anton Schuster and Theresa Schuster."

The petition to strike off the lien suggests that the lien is defective because it is for the full contract price although the entire work to be done under the contract has not been completed. The answer to this contention is that the law exacts only substantial performance: Wilkinson v. Becker, 185 Pa. 225; and that a failure to complete work in minor particulars operates as a defence only to the extent necessary to repair or complete the work: Act, June 4, 1901 (Section 30; P. L. 448). Necessarily, the amount to be deducted, if any, must be determined upon the trial of the scire facias.

It is also contended that the lien is intended to cover damages suffered by claimant because defendants did not permit claimant to complete his work. But we do not so understand the averments of the lien. The averments relating to the failure to complete the work are manifestly intended to explain such non-completion only and are not intended as supporting a claim for damages for any act of interference by defendants. Even if intended to sustain a claim to damages arising out of the interference of defendants with the claimant, the averments would be ineffectual for that purpose and would be disregarded. Certainly, a mechanic's lien cannot be filed for such damages: Act, June 4, 1901, (P. L. 431; Sections 1, 2.)

To the contention that the lien is for a lump sum price without specification of the kind and amount of materials furnished it is a sufficient answer to point out that the lien is filed by a contractor on a contract with the owners and therefore the detailed statement of kind

and character of labor and materials furnished need not be set out in the lien: Warren v. Johnson, 33 Pa. Super. Ct. R., 617.

Now, December 3, 1923, the petition to strike off mechanic's lien is denied and dismissed.

ESTATE OF LEWIS H. FENSTERMAKER, DEC'D.

Wills-Real Property-Option to Purchase-Liens.

An option to purchase land contained in a will is a devise. Where, in a will, an option was given to purchase land at a specified price, which land was subject to a mortgage, the devisee, if he exercises the option, takes it subject to the mortgage.

Doubted, whether a citation upon the executors to show cause why the land should not be conveyed free of the mortgage, gave jurisdiction to the Orphans' Court.

In the Orphans' Court of Lehigh County. In Re Estate of Lewis H. Fenstermaker, deceased. No. 18125. Citation. Citation Dismissed.

Thomas F. Diefenderfer and Oliver W. Frey, for Petitioner, William D. Schlegel.

Dallas Dillinger, Jr., for Executors.

Reno, J., December 17, 1923. Lewis H. Fenstermaker died March 6, 1923. His will, dated November 3, 1922, and probated March 14, 1923, provides, inter alia, "I order, direct and request that if my son-in-law, William D. Schlegel, is willing and inclined to purchase and pay the sum of Seven Thousand ($7000.00) Dollars for my brick dwelling house, 1443 Linden Street, Allentown, he can do so; otherwise if he rejects this offer I then order and direct my said named executors to sell it to the best advantage either at public or private sale." At the date of testator's death the property was subject to the lien of a mortgage for $3500, executed and delivered November 1, 1922. William D. Schlegel, shortly after the probate of the will, notified the executors of his desire to exercise, what he terms, "the option granted by the will" and requested the executors to convey the property to him, free and clear of the said mortgage, and tendered

payment of the sum of $7000. The executors refused to convey free and clear of the incumbrance and thereupon Schlegel filed a petition for a citation upon the executors which, in effect, required them to submit to such order as the Court might make in the premises.

The petitioner contends that (1) the quoted provision is not a devise and therefore not subject to that provision of the Will's Act of 1917 (Section 18) which makes devises of real estate subject to mortgages thereon; and (2) that it is an option to purchase at a specified figure and that such option contemplates a conveyance free and clear of incumbrances.

The conclusion to which we have come requires us to notice only the first of these contentions. It is well established by a long line of cases that an option to purchase land contained in a will is a devise: Dilworth's Estate, 243 Pa. 475; Bayer v. Walsh, 166 Pa. 38; Ludwick's Estate, 269 Pa. 365; Hanna's Appeal, 31 Pa. 53; Fleming's Estate, 184 Pa. 80; Boshart v. Evans, 5 Wharton, 551; Johnson v. Johnson, 81 Pa. 257. That is, the clause quoted confers a gift upon Schlegel, i. e., a gratuitous privilege of acquiring title to the premises by the payment of a stipulated price, or, to state it differently and more accurately perhaps, it is a devise of the land itself subject to the payment of the price and which upon payment of the price, but not until then, vests title in the devisee. This conclusion requires us to hold that the devisee takes the land subject to the mortgage upon it.

We entertain grave doubts whether our jurisdiction was properly involved by the petition under review. No statute has come to our attention which in terms confers upon the Orphans' Court power to do that which this petition calls upon us to do. However, since the conclusion already stated makes further action on our part unnecessary we shall not attempt to solve that problem.

Now, December 17, 1923, the prayer of the petition is denied and the petition is dismissed.