Now, March 3, 1924, motion for judgment non obstante veredicto is sustained and the rule therefor made absolute and judgment is directed to be entered in favor of the defendant upon payment of the jury fee.

The motion for a new trial is discharged.

LEHIGH NATIONAL BANK v. SEYFRIED. Negotiable Instruments-Joint Endorsers-Death of Joint Debtors-Actions-Parties.

The representatives of a decedent, who had died prior to the institution of a suit, cannot be properly joined with the survivors in an action of assumpsit upon a joint obligation of the decedent and survivors.

In the Court of Common Pleas of Lehigh County. No. 20 June Term, 1917. The Lehigh National Bank of Catasauqua, Pa., v. Emma Seyfried, Edith S. Smith and Jennie Goldsmith, Executrices of the Estate of James J. Seyfried, deceased, (under his last Will and Testament), and W. J. Smith and E. J. Smith. Assumpsit. Affidavit of Defense raising Questions of Law. Affidavit Sustained, with Leave to Amend.

William H. Schneller, for Plaintiff.
Henninger & Snyder, for Defendants.

Iobst, J., March 3, 1924. In this case the plaintiff sues in assumpsit for the recovery of the sum of $5,361.12, plus legal interest thereon from October 5th, 1914. The plaintiff became the holder for value of four certain promissory notes, all in like tenor, amounting in the aggregate to the sum of $13,000.00, upon which certain payments were made from time to time, after maturity, so that the actual amount now remaining due thereon totals $5,361.12, plus interest as aforesaid, for the recovery of which sum this suit is brought.

The notes in question were drawn by the Catasauqua Silk Company as maker and also as payee, and endorsed on their respective dates by Jas. J. Seyfried, W. J. Smith and E. J. Smith, (who were officers and directors of the Catasauqua Silk Co. and majority stockholders thereof),

and were then discounted at their request by the plaintiff.

Before suit was brought James J. Seyfried, one of the joint endorsers, died, having under his last will and testament appointed Emma Seyfried, Edith S. Smith and Jennie Goldsmith, as his executrices.

This action joins the executrices of James J. Seyfried with W. J. Smith and E. J. Smith, surviving endorsers, as defendants.

On May 16, 1917, Emma Seyfried and Jennie Goldsmith, two of the executrices of the estate of James J. Seyfried, deceased, filed an affidavit of defense for the purpose of raising questions of law for the decision of

the court.

The case was not placed on the Argument List by counsel interested until June 20, 1923, and was argued on the first Monday of September, 1923, before the then President Judge of the Courts, who on December 31st, 1923, ordered the case re-argued on the first Monday of February, 1924. The argument was then heard by the judge writing the opinion.

The question involved is whether or not the representatives of a decedent, who had died prior to the institution of a suit, can be properly joined with the survivors in an action of assumpsit upon a joint obligation of the decedent and the survivors.

"As respects one another, indorsers are liable, prima facie, in the order in which they indorse; but evidence is admissible to show that as between or among themselves they have agreed otherwise. Joint payees or joint indorsers who indorse are deemed to indorse jointly and severally." Negotiable Instruments, Act of 1901.

"The doctrine very generally obtains that on the death of one of several of the defendants jointly and severally liable the action, either in contract or in tort, cannot be revived as a joint action against the surviving defendant and the representatives of the deceased defendant, unless there is a statute permitting such joinder." 1 Corpus Juris, Sec. 496.

While under our statutes and decisions, where one of the joint debtors has died since the commencement of the action, his death may be suggested on the record and the action proceeded in against the estate of said de

cedent, as though the suit had been commenced against the decedent alone-permitting the plaintiff to bring in the executor or administrator and proceed against him and the survivor at the same time to judgment; but that cannot be done where one of the joint debtors died before suit brought.

"If the directors of a corporation are jointly liable for the debts of a corporation and one of them dies before suit brought, his executor cannot be sued jointly with the survivors, and, if he dies after suit brought against all of them, it is optional with the plaintiffs to bring in his administrator or proceed against the survivors without doing so."

Githers, et. al., v. Clark, et. al., 158 Pa., 616.
Given v. Albert, 5 Watts and Sergeant, 333,
Ensminger v. Finkey, 5 Dist., Rts., 358.

In the light of these decisions, the action as instituted cannot be proceeded in and the question of law raised in the affidavit of defense must be sustained.

ORDER OF COURT.

Now, February 18, 1924, the questions of law raised in the affidavit of defense are sustained, the plaintiff, however, in order that its rights may be preserved, to have an opportunity to amend its statement so as to proceed either against the estate alone, or against the living endorsers alone.

BROWN v. CRAIG, EXECUTOR.

Waste by Life Tenant-Will-Effect of Direction to ConvertReal Estate Practice, C. P.-Party Plaintifl.

A decedent, by her last will and testament, devised her real estate to her husband for life, and directed that at his death the same should be sold by her executor, and the proceeds divided among her heirs. The husband having died, and executor sold the real estate.

In a suit by the heirs against the executor of the life tenant to recover waste alleged having been committed by the latter during his tenancy, Held, on statutory demurrer, that they could maintain the action.

In the Court of Common Pleas of Lehigh County. No. 54 January Term, 1924. Albert E. Brown, Annie E. Walters and Claire Schall v. Charles Craig, Executor of

the last Will and Testament of Frank Medlar, Deceased. Statutory Demurrer to Plaintiffs' Statement. Demurrer Overruled.

Dewalt & Heydt, for Plaintiffs.

Aubrey, Steckel & Senger, for Defendant.

Reno, P. J., March 3, 1924. Clara D. Medlar died March 17, 1902 and by her will devised her real estate to her husband, Frank Medlar, for life, and directed that at his death the same should be sold by her executor and the proceeds divided among her heirs. The husband took possession of the real estate and died May 5, 1923, after which the executor sold the real estate and gave his deed therefor. The plaintiffs, who are the heirs of Clara D. Medlar brought this suit against the executor of Frank Medlar to recover damages for the waste alleged to have been caused by him during his life tenancy. The statutory demurrer raises three questions but at the argument the first and third were abandoned, requiring us only to decide whether the plaintiffs are the proper parties to maintain the action.

The defendant contends that the suit should have been brought by the executor of Clara Medlar, that the will converted the real estate into personal property from the date of Clara Medlar's death and that, therefore, any damages to the inheritance are collectible at the suit of the executor and not of the heirs.

Unquestionably, the will converted the land into personal estate: Marr's Estate, 240 Pa. 38; and it may be conceded that the conversion was effective from the death of Clara Medlar: Parkinson's Appeal, 32 Pa. 455. But this is subject to the limitation that the effects of a conversion extend no further than the purpose of the conversion requires: Wilson v. Hamilton, 9 S. & R. 423; Foster's Appeal, 74 Pa. 391; Sayer's Appeal, 79 Pa. 429; Rudy's Estate, 185 Pa. 359; Morris v. Knight, 14 Pa. Super, Ct. R., 324.

The case last cited is most instructive of the point before us. There, as here, there was a conversion and yet that feature was not regarded as an obstacle in the way of a recovery by the remaindermen against the life tenant. Thomas Zimmerman devised his estate to his wife,

Mary Zimmerman, during her life or widowhood and directed, upon her death or remarriage, that it be sold and the proceeds divided among her children. After her death, Stephen Knight, the executor of Mary Zimmerman, was sued for waste by Mary Zimmerman in her lifetime. The suit was brought by the executrix of the surviving husband of one of the children, the administrator of another child, and the alienee of the interests of the two remaining children. These parties were, therefore, either the personal representatives of the remaindermen or purchasers from the remaindermen. At all events, these successors in title had no rights greater nor less than the remaindermen. No point was made concerning their right to maintain the suit. In the trial court, plaintiffs contended that there was a conversion of the estates in remainder and that, therefore, they could maintain the action as for an injury to their personal estates and that the correct measure of damages was not the injury to the freehold, but the value at the mill of the lumber taken from the land. The trial court rejected evidence of the value of the lumber at the mill and charged that the measure of damages was the damage done to the land or inheritance owned by the reversioners. There was a verdict for defendant and plaintiffs appealed alleging errors in rulings upon evidence and in the charge. It thus appears that the controversy was the effect created by the provision for conversion in the will, and what the Superior Court says in that connection appears to be so decisive of the instant case that a rather long excerpt from its opinion is justified. (The italics are ours):

"The main controversy in the court below involved only the rights of the life tenant to cut timber, and the measure of damages when those rights were exceeded. When the tenant for life exceeds his legal rights in the cutting of timber, the measure of damage is not the value of the timber after it has been delivered at some distant mill, or manufactured into a finished product, but it is the injury done to the freehold. And this is the rule whether the timber simply be cut down and destroyed, or, after being cut down, be sold. The question is whether the act of the life tenant has injured the interest of the remainderman in the land. That