of twenty-one years." The court held it to be synonymous with "when they arrive," and to import a contingency which was annexed to the substance of the gift. The exceptions to the rule probably outnumber the cases embraced by it, and may be accounted for upon the theory that the law always favors a vested rather than a contingent interest. Prominent among the exceptions are gifts made upon the contingencies just mentioned, but preceded by bequests to the same legatees, of the intervening interest or income arising from the subject-matter of the gifts. This disposition of the interest indicates an intention on the part of the testator, that the legatees shall have the principal at all events. So, when the terms of the gift denote a contingency, but successive payments of portions of the legacy are directed, the interest of the legatee has been held to be vested: Donner's Appeal, 2 W. & S. 372. The bequest now under review fulfils the conditions which rule the excepted cases. It was a gift to the widow, of the entire income, for her support and that of the daughter, and of one-third of the principal, when the daughter should have attained full age. That a contingency has happened, for which the testator did not in terms provide, does not vary the application of the rule. If the interest of the widow was vested, it was unnecessary to consider the possibility of her death before the majority of her daughter. It is not venturing too far to say that it was probably in the mind of the testator, when we find him providing for her marriage, an event which was perhaps no more likely to happen within the time fixed by him than her death. After her marriage she was to take one-third of the income, followed by one-third of the principal, and the remaining two-thirds of both were to go to the daughter. This arrangement fixed the ultimate proportion of income which the testator deemed, in any event, essential to the proper maintenance and education of his daughter. In the face of his manifest intention to dispose of his entire estate, we are not at liberty to presume that he meant to die intestate as to any portion of it. He gave to his wife onethird of his estate absolutely, and he made no disposition over in the case of her death. To use the language of Paxson, J., "Had the gift of this income been to her and to her executors, administrators and assigns, it would have been no stronger than it is with the omission of those words, in the absence of any bequest over:" Little's Appeal, 31 P. F. S. 193. It was argued that as the income was given to the widow for her own and the daughter's support, the reason for the pro vision as to the former ceased with her death. But it is to be observed that the one-third which was allotted to her in case of her marriage was not expressed to be for her support. The argument, if it is valid at all, favors a present distribution of the estate. The division was postponed in order to provide a fund for the support of the two legatees; but the necessity for this delay, as to the widow, has ceased with her death. Suppose the daughter had died, still in her minority and without issue, and that the widow survived. It cannot be doubted, under the language of the will, that two-thirds of the estate would have gone at once to the nephew and niece of the testator. And unless we are to presume an intestacy as to one-third of the income or principal, or of both, which, in the absence of an apparent intention, all the cases forbid, no valid reason is discoverable why one-third of the estate shall

not be now payable to the personal representatives of the widow. This conclusion is favored by the decision in Barker's Appeal, 22 P. F. Smith, 421, where the provisions of the will, and the circumstances of the case closely resembled those of the present. To illustrate the general principles which have been relied on, and their applicability to the case in hand, it is sufficient to refer without comment to King vs. King, 1 W. & S. 205; McGill's Appeal, 11 P. F. Smith, 46; McClure's Appeal, 22 Id. 414; Provenchere's Appeal, 17 Id. 463; McCall's Appeal, 5 Norris, 254.

The exceptions to the adjudication are sustained, and the accountant is ordered to pay to the administrator of the widow one-third of the principal of the estate, with interest from the date of death of the widow.

Pierce Archer, Esq., for exceptant.
Charles Phillips, Esq., contra.

[Leg. Int., Vol. 37, p. 15.]

Estate of MARIA WILLIAMS, deceased.

Will-Demand for issue-Evidence of improper execution-Undue influence and mental incapacity.

Appeal from register of wills. Opinion delivered January 3, 1880, by

ASHMAN, J.-The testatrix died on the 16th of July, 1878, at the age of seventy-nine years. She had been twice married. Her children by the first husband died, but their issue, her grandchildren, survived, and are the contestants in this case. Her will was dated and published May 10, 1878, and disposed of her property, all of which was derived from her second husband, in equal shares, to the four children whom she had by him. The decision of the register granting letters testamentary to the executor named in the will, was appealed from on the ground that the instrument was improperly executed, that it was procured by undue influence, and that the testatrix at the time of making it was laboring under mental incapacity.

The testimony of the subscribing witnesses disposes of the first objec tion. The will was read to the testatrix in their presence and hearing and was assented to by her. Both of them saw her affix her mark to the instrument, paralysis having disabled her from writing her signature, and both signed their names as subscribing witnesses, in her presence. The second objection may be dismissed as summarily. The allegation of undue influence rests upon the one fact that the testatrix lived with and was cared for by two of her children. If we are privileged to discuss the motives which prompted them, the will shows that the influence which they brought to bear upon the decedent was at least impartial in its character, and was used for the equal benefit of all the children. But something is due to the dictates of humanity, and it must not be said of the child who attempts to soothe the last sufferings of her parent that she is guilty of imposition, even if the charge is preferred by those who have shielded themselves from suspicion of influence by carefully abstaining from offices of affection. We may go further and say that the services of a friend or relative to a testator

may be the subject of lawful persuasion to the giving of a legacy: Miller vs. Miller, 3 S. & R. 269; Dean vs. Negley, 5 Wright, 317.

The evidence in support of the theory of mental unsoundness is not lacking in force of expression. The wife of one of the contestants declares that the testatrix was idiotic. This fact, if established, would have saved counsel the labor of producing their other witnesses. As an opinion, however, the declaration possessed no legal value, unless accompanied by a statement of the facts upon which it was based. There may be degrees of idiocy, but the lowest is not necessarily reached where the object fails to recognize a visitor, and takes no part in a conrersation which is carried on by others. Yet these were the reasons Assigned by the witness for her belief in the imbecility of the testatrix. All of the remaining testimony for appellants, although not so exaggerated in its terms, was of the same vague description, and uniformly referred to the non-recognition of the witnesses by the testatrix, and to her inability to converse. Whatever force it may have had, if uncontradicted, was weakened by the circumstance that the witnesses enjoyed few opportunities of observing the mental condition of the decedent; and it was fatally defective in failing to touch the dates of the preparation and execution of the will. On the part of the proponents, it was shown that the testatrix suffered from a stroke of paralysis on November 6, 1877, which disabled her right hand and side, but from the mental effects of which she soon recovered. On the 29th of January, 1878, she was seized with convulsions, resulting from the paralysis. These recurred on the dates of April 11, May 16 and July 10, 1878. She died July 16, 1878. The testimony of her physician and of those who nursed her, was that these attacks left her for three or four days in a state of semi-consciousness, after which, during the balance of the interval, she was in full possession of her faculties. She was described as a woman of extraordinary physical and mental vigor, and so late as the mouth of April, 1878, receipted for moneys collected for her by her business agent. It was testified that she frequently failed to recognize visitors because she did not wear glasses while lying down; and her taciturnity in the presence of some of her relatives was explained by her expressed aversion to them. To her daughters and others she declared, at different times, her intention that her household effects should not be sold at her death, but should be divided, with the rest of her property, equally among her four children. She also declared that she had already done all that could be expected of her for the families of her children by her first husband. At her own request the scrivener was sent for on the 9th of May, 1878, who took notes of her instructions, and brought the engrossed will for her signature on the following day. On both occasions she was able to leave her bed, and sat up for several hours. The fact that on these days, and for some time preceding and following them, her mind was so far unclouded as to perceive clearly the force of its acts, was abundantly established by witnesses, of whom some were manifestly disinterested. The weight of their testimony, as opposed to that of the appellants, if submitted to a jury, would forbid the court to sustain a verdict against the will. And if the question were susceptible of a doubt, the inherent justice of the provi sions of the will would tend to solve the doubt in favor of the proponents: Patterson vs. Patterson, 6 S. & R. 55.

The appeal is dismissed, and the demand for an issue refused, at the

costs of appellants.

D. K. Hawrhurst and Thomas Bradfield, Esqs., for appellants.-
W. Hall Waxler and J. Davis Duffield, Esqs., contra.

[Leg. Int., Vol. 37, p. 15.]

SQUIRE'S ESTATE.

The conversion act (February 24, 1833, ? 33) regulates distribution merely, and makes no attempt to continue the original nature of the estate.

Therefore when money from a sale under this act is once distributed, it is to be considered as money and nothing else.

Land descended to a minor from his father was sold under a mortgage and the surplus paid to his guardian. The minor subsequently died. Held, that the fund must be absolutely awarded to the mother to the exclusion of the heir ex parte paterna.

Sur exceptions to adjudication. Opinion delivered December 29, 1879, by

PENROSE, J.-The provision of the act of February 24, 1833, § 33 (Purd. Digest, 425, § 101), that the surplus proceeds of land of a decedent, sold at sheriff's sale, shall be paid to the executor or administrator, and by him "distributed as the real estate from which they arise would have been," is simply an application of the general rule of equity with regard to conversion of lands. This rule, however, while it transmits so much of the purchase money as is not required for the specific purpose for which the sale was made, as if there had been no conversion at all, is confined to the first transmission; and the money having once vested in the person entitled is no longer treated as real estate.

A statute, of course, may provide otherwise; as in the case of the acts of April 18, 1853 (Price Act), and April 13, 1854, which declare that the course of descent shall not be changed by sales, etc., under their provisions, of lands belonging to persons under disability (Holmes's Appeal, 3 P. F. Smith, 340; Davis's Appeal, 10 Id. 118); or the act of March 29, 1831, § 48, with regard to a married woman's share of proceeds of land sold under proceedings in partition: Hay's Appeal, 2 P. F. Smith, 449; or the act regulating sales of real estate of lunatics: Dyer vs. Cornell, 4 Barr, 363, commenting on Lloyd vs. Hart, 2 Barr, 473.

But the act now under consideration is not of this character. It reg ulates distribution merely: Matlack vs. Roberts, 4 P. F. Smith, 148; and makes no attempt to continue the original nature of the estate after once vesting it.

The act of 1794 contained a similar provision with regard to the surplus proceeds of sale of land for payment of debts under order of Orphans' Court, under which it was held in Grider vs. McClay, 11 S. & R. 224, that when the money was once distributed, "whether it belong to an infant, a feme covert, or a male of full age, it is to be considered as money, and nothing else;" and consequently that the share of a minor, dying in his infancy, passed to his personal representative and not to his heir.

That case cannot be distinguished from the present, and there are many others to the same effect. See Dyer vs. Cornell, 4 Barr, 359; Pennell's Appeal, 8 Harris, 515; Spangler's Appeal, 12 Harris, 424; Hay's

Appeal, 2 P. F. Smith, 449; Large's Appeal, 4 Id. 383; McCune's Appeal, 15 Id. 450; Sayer's Appeal, 29 Id. 428; Eckert's Estate, 5 Weekly Notes, 451.

In the case before us, the land having descended to the minor from his father, was sold by the sheriff' under a mortgage created by a fɔrmer owner, and the surplus proceeds paid to the guardian, by whom they were held when the minor subsequently died; and under the authorities cited they must be awarded absolutely to the mother to the exclusion of the heir ex parte paterna.

The second and third exceptions are sustained. Decree accordingly.
Chas. Hart and Chapman Biddle, Esqs., for exceptant.
J. D. Rodney, Esq., contra.

[Leg. Int., Vol. 37, p. 27.]

Estate of PETER LANDIS, deceased.

An administrator will be cited to file an account notwithstanding great delay on the part of those entitled to it.

Opinion delivered January 10, 1880, by

ASHMAN, J.-The petition to cite the administrator to file his account is granted upon the strength of what appears in his answer. By the copy of the account which is set forth therein, and which the respondent says was agreed to by the parties, as correct, it is shown that the administrator claimed credit for the costs of filing at the register's office and Orphans' Court, and for payment of the collateral inheritance tax, and deducted their amount from the balance remaining in his hands for distribution. His counsel confirms the inference arising from these entries, and states that the intention of the parties was to file the account, under an agreement that it should be confirmed without audit, as soon as one of them, who was then a minor, should attain full age. The latter reached his majority and signed the agreement, but the account was never filed, and the moneys retained for costs and taxes, remained in the custody of the accountant. The delay in making the present application, although great and only partially explained by the alleged ignorance of the parties, ought not to defeat what is shown by the papers to have been their clear purpose. When the account shall have come up for adjudication, the effect of the release which was offered in evidence, can be determined.

The prayer of the petition is granted, and the administrator is ordered to file an account of his administration of the estate, within two weeks from the date of this decree.

J. H. Stevenson, Esq., for petitioner.

W. H. Armstrong, Esq., for respondent.

[Leg. Int., Vol. 37, p. 51.]

Estate of JAMES MORRELL, JR., deceased.

Liability of administrator for policies of life insurance taken out for the benefit of persons indicated by the decedent.

Held, That their primary object was not to raise a fund for the payment of decedent's debts.