the time. period." Another witness, Edward Hartranft, who worked in the same shop with claimant, and had therefore personal knowledge of what he did, said: "I was at work in 1871 in Ginnodo street. I know Dr. Wells and C. F. Pike, and about the machine. I have worked there since 1865; work there now. Charley Pike (the claimant) always was there. He left the work in August and went on the machine. It was about September or October, 1870. He worked along until 1872-somewhere in March or April, 1872-except five or six weeks in 1871. I don't think he lost a day, hardly, either draughting or working on the machine.” And on cross-examination, the witness said further; "He would get there about seven in the morning and left at six at night. I say, he was working all the time on the machine." I can't say how much he worked during that There was no attempt made to contradict this witness, nor was any evidence offered against the claim. We are of opinion, therefore, that it should have been allowed, estimating the value of the services at $2.50 per day, the lowest price named, and deducting the time admitted to have been lost in the summer of 1871. From Nov. 1, 1870, to March 1, 1872, there were Deduct days lost, say. Total number of days.... At $2.50 per day........ 403 48 355 $887 50 To this must be added: Amount proved by W. J. Billings to have been paid for steam-power............. Total claim as proved....................... 18 00 $905 50 We therefore sustain the exceptions and decree accordingly. G. C. Purves, Esq., for exceptants. John G. Johnson, Esq., contra. [Leg. Int., Vol. 36, p. 286.] FREDERICK DE WALD'S ESTATE. An instrument promising to pay, etc., one year after death is not testamentary, but is evidence of a contract, and the measure of damages is the value of the thing to be delivered, at the expiration of the year, and interest thereon. When securities are to be converted into cash for the purpose of complying with the directions of the will, a commission of five per cent. is proper; but when they are to be transferred in specie, only half of that amount will be allowed. Sur exceptions to adjudication. The following is a copy of the instrument upon which the claim of Charles Krupp was founded: $1,500. Philadelphia, February 18, 1874. One year after my death, after date, I promise to pay to the order of Charles Krupp, one city bond of fifteen hundred dollars without defalcation, for value received. FREDERICK DE WALD. Witness present.-WM. P. BECKER. Opinion delivered July 5, 1879, by PENROSE, J.-The authorities cited in the adjudication, to which many others might be added, fully establish the validity of the instru ment given by the testator to Charles Krupp, and show that it is not rendered testamentary by the mere fact that it was made payable one year after his death. It is true it was not negotiable, but the admission contained in it, that it was for value received, was sufficient to throw the burden of proving the want of consideration upon the estate, and the adjudication states that no evidence to this effect was given. Apart from this, however, we think it may fairly be inferred from the testimony, that it was given in consideration of the surrender of the premises demised by the testator to the claimant, and of the abandonment of the contract under which the latter had been induced to leave the city of New York, and, with his wife, come to Philadelphia to keep house for the testator and his wife. The contract, however, was not one as to which specific performance could be enforced. It was broken at the expiration of a year (June 26, 1876) from the testator's death; and, there being no fraud or relation of trust, the measure of liability was the value at that time of the security promised to be then delivered with interest to date of adjudication. See Huntingdon R. R. vs. English, 5 Norris, 247; North vs. Phillips, 7 W. N. 151. It was admitted at the argument that this value was 108 per cent. Such being the case, the sum awarded to the claimant should be as follows: $1,500 city 6s. at 108... ..... Interest from June 26, 1876, to May 30, 1879, 2 years, Amount due May 30, 1879....... $1,620 00 284 58 ..$1,904 58 With regard to the exceptions filed by the accountant, it is clear that he has no right to complain so far as concerns the reduction of commissions on the certificates of indebtedness of the German Reformed Church. That church was the residuary legatee, and by consent of all parties was, as such, allowed to retain the entire amount of the indebtedness shown by the certificates. The trouble involved in this transaction was certainly not inadequately compensated by an allowance of two and a half per cent. on the sum so distributed ($7,600): McCausland's Appeal, 2 Wright, 466; Montgomery's Appeal, 5 Norris, 234. But beyond this, there seems to be no reason for reduction. It is true that at the time of the adjudication the securities remained in the hands of the accountant, unconverted, but the conversion of all of them, except the certificates of indebtedness of the German Reformed Church, is required for the purpose of settlement and distribution, all of the legacies being pecuniary, and the claim of Charles Krupp being one that is to be compensated in damages and not paid in kind. We think that upon the amount produced by a sale of the securities, so required to be converted, the accountant is entitled to a commission of five per cent. As the account cannot be fully settled, or the amount to be paid to the residuary legatee ascertained, until a conversion of the securities has actually taken place, it must be recommitted for further adjudication. The exceptions, so far as they are not sustained by this opinion, are dismissed, and the account is recommitted to the auditing judge. G. W. Thorn, Esq.. for exceptants. A. S. Letchworth, Esq., contra. [Leg. Int., Vol. 36, p. 286.] Estate of MARGUERITE CREMERS. A petition for a review, unless presented promptly, must show error on the record, or matter arising since the decree. If the answer to a petition for a review is responsive, it will be taken as verity until overcome by evidence. Sur petition for review, answer and replication. July 5, 1879, by Opinion delivered PENROSE, J.-The petition alleges an agreement between the petitioner and respondent, by which the furniture, personal effects, etc., of the decedent, were to be retained and held by the former, "unconverted, until and subject to, the final decision of the contest of the will, and to abide the result of the claim said Cremers proposed to make as the husband, when the accounts of the said Esling were settled by the Orphans' Court." Conceding such an agreement to have been made, it is manifest that it was not adhered to by the petitioner, who admitted at the argument that he had not retained the furniture, but that it had been delivered to the residuary legatee, and not stored at all; and his claim for storage was therefore withdrawn or abandoned. Under these circumstances, and after several years usage by one whose claim was, as the court has decided, invalid as against the respondent, it would be unjust to compel the latter to take the property in its present condition: See Whitaker vs. Houghton, 5 Norris, 48. But the answer utterly denies that any agreement whatever was made, and being responsive must in this respect be taken as verity until overcome by evidence adequate, according to the rules of equity for this purpose. No such evidence has been furnished; and if it had been, it could not have availed, in view of the surrender of the goods to the legatee. Apart from the merits of the case, the petitioner has not brought himself within the principles governing bills of review. He has shown no error apparent on the face of the record, and he alleges no matter arising since the decree. Relief is never granted upon any other ground unless the application be made promptly: and "any laches or negligence destroys the title to relief:" Story's Eq. Pl., § 414. Here the adjudication which charged the petitioner with the household furniture at its appraised value (upon which commissions had been claimed and allowed), and which directed him to pay the amount in cash, was filed in April, 1878. It was confirmed by the court in bane, after exceptions upon other grounds had been filed and dismissed, in November, 1878, and was affirmed by the Supreme Court on the 3d of March, 1879. Yet no suggestion such as now set up in the petition was made until April 5, 1879, after an order to pay had issued. And it was not until May 3, 1879, that the present petition was filed. The case may be a hard one for the petitioner; but it would be a still harder one for the respondent if he should be compelled to bear a loss arising from an unauthorized use of his property, which it was in the power of the petitioner, as it was his duty, to have prevented. Petition dismissed. B. H. Brewster, Esq., for petitioner. Daniel Dougherty, Esq., contra. [Leg. Int., Vol. 36, p. 292.] Estate of MICHAEL MCCLOSKEY, deceased. A commission of eight per cent. is not excessive for the care of real estate which requires unusual attention. Exception to adjudication. Opinion delivered June 28, 1879, by ASHMAN, J.-The auditing judge found as a fact that the estate of the decedent consisted of thirty-six houses, renting monthly at rates ranging from $5 to $28, and lying in different wards, at great distances from each other. He also found that repairs were frequently needed, and that the rent in many instances could be collected only after repeated visits to the tenants. These repairs were superintended and the rents were collected by Mr. Wood, one of the executors. He also paid the taxes, water rents, and interest upon the mortgages. The accountants claimed a commission of eight per cent., but the auditing judge, following the ruling of this court in 1875, when a prior account in the same estate was before it, fixed the rate at six per cent. It was conceded at the audit, that the facts were not fully disclosed to the court when the preceding account was presented for settlement. The decision was reviewed by the Supreme Court; see Wood and Martin's Appeal, 5 Nor. 346, and Paxson, J., refused to reverse upon the meagre outline of evidence which appeared in the case. He admitted, however, the large margin which exists for the exercise of a sound discretion in adapting the compensation to the labor and responsibility involved in any given case. This principle was recognized in Armstrong's Estate, 6 W. 236, where the commissions allowed exceeded eleven per cent. There are cases in which the employment of an agent may be a measure of wise economy; and the agent will be entitled to an allowance therefor, in addition to his own commissions. In Rhodes' Estate, 2 W. N. C. 587, the commissions of the trustee, which included compensation to an agent, were fixed at seven and a half per cent. Under the evidence which has been submitted, that rate would seem to be a fair recompense to the accountants in the present case, and to that extent the exception is sustained and the adjudication corrected. A. A. Hirst, Esq., for accountant. [Leg. Int., Vol. 36, p. 292.] In re Will of DAVID BOYER, deceased. It is not every disputed fact that will entitle a party to an issue to be tried by a jury; it must be a fact material to the question in controversy; the issue demanded must be supported by evidenec tending to demonstrate the truth of the disputed fact and its materiality; if the demand be unsustained by competent proof, or the question proposed to be submitted to a jury be irrelevant or immaterial, it is the duty of the court to refuse the issue. In cases affecting the validity of last wills and testaments it is well settled that if upon the whole evidence a verdict against the will ought not to be allowed to stand, an issue ought not to be awarded. Evidence of mental unsoundness, undue influence, and testamentary incapacity; tes timony of medical experts. Appeal from the register of wills and demand for au issue. Opinion delivered July 19, 1879, by HANNA, P. J.-The act of March 15, 1832, Purdon, 1256, pl. 22, provides that whenever a dispute upon a matter of fact arises before any Register's Court, now superseded by the Orphans' Court, the said court "shall, at the request of either party, direct a precept for an issue to the Court of Common Pleas of the county, for the trial thereof." While this appears to be an unconditional declaration of the act, yet it is not every disputed fact that will entitle a party to an issue to be tried by a jury; it must be a fact material to the question in controversy. The demand for such an issue has also been held to be a matter of right, and does not, as other issues of fact, allowable by virtue of the act of March 29, 1832, Purdon, 1108, pl. 45, rest within the discretion of the court. The right to the issue being thus established, still it has been found necessary, for the proper administration of justice, that its exercise be regulated by certain well-defined principles and rules of practice. To avoid and prevent needless delay and expense to parties, it has been determined the issue demanded must be supported by evidence tending to demonstrate the truth of the disputed fact and its materiality. The logical sequence of the rule therefore is, that if the demand be unsustained by competent proof, or the question proposed to be submitted to a jury be irrelevant or immaterial, it is the duty of the court to refuse the issue. In no class of cases should the reins be held with a firmer hand than in those affecting the validity of last wills and testaments. And in these the law is well settled by a number of authorities, the latest of which is Wainwright's Appeal, recently decided (see 36 Legal Intelligencer, page 292), dismissing an appeal from this court, in which Sharswood, Chief-Justice, in language giving forth no uncertain sound, says: "If, upon the whole evidence, such a verdict (against the will) ought not to be allowed to stand, an issue ought not to be awarded;" thus reiterating the determination of the court to uphold and carry into effect the disposition by testators of their estates, as previously declared by Cauffman vs. Long, 1 Norris, 77, where Paxson, Justice, says: "A man's will, the most solemn instrument he can execute, shall not be set aside without any sufficient evidence to impeach it." The test, therefore, is, as we have already held, "that unless the Orphans' Court be satisfied from the evidence that a jury would be justified in finding a verdict against the will, the issue should be refused, and the parties interested saved the expense, delay and uncertainty of a trial" Hardy's Estate, 12 Phila., 22; Colegate's Will, 12 id. 48; Wainwright's Will, 3 Weekly Notes, 458. From the testimony in the present case, we gather that David Boyer, the testator, had been a successful mechanic, and by his industry, frugality, and perhaps parsimony, accumulated a considerable estate. At the time of his death, on December 22, 1878, he was seventy-two years old. He had never married, and died leaving neither brother nor sister, nephew nor niece, his only surviving relatives being his first cousins, |