EVIDENCE-(Continued).

grantor and grantee notwithstanding the language of the deed. Gertzer vs.
Kumerer, 190.

4. Shop books are evidence of sale and delivery from the necessity of the case,
and because ordinarily they furnish the only evidence of the transaction that is
possible. This reason is inapplicable where delivery has been made to a third
person, who may therefore himself be called to prove the fact. In a claim against
a decedent's estate it is clearly proper to exclude entries which showed erasure
and alteration in material points, and the claimant was not a competent witness
to give an explanation of such erasure. Est. of Henry Wheeler, 370.

5. The books of a plaintiff are not competent evidence to charge a defendant
with goods delivered to a third person, unless an order for such delivery be other-
wise proved. Est. of Henry Wheeler, 373.

6. When a defendant in a criminal cause testifies in his own behalf, and states
in his examination in chief that he has never been charged with any crime, and
on cross-examination says that he has never been charged with a particular
larceny, not the one ou trial, held, that the commonwealth might rebut such tes-
timony by showing that he had been charged with such larceny. Com. vs.
Murray, 454.

7. Evidence tending to excuse delay in furnishing proofs of loss, and to show
waiver of the condition requiring the same to be furnished as soon as possible'
after a fire, is properly for the jury, and its weight is for them to settle. Miller
vs. Ins. Co., 551.

EXAMINERS.

As to compensation of examiner. Est. of Mary McCabe, 367.
EXECUTION.

See INTERPLEADER, 1. SHERIFF'S SALE, 1. EXEMPTION, 1. WAGES, 2, 3.
1. Proceedings to obtain possession by sheriff's vendee, when person in posses
sion claims under a third person-Upon oath made by person in possession that
he does not hold under the defendant, but under a third person named, a magis
trate will not be compelled by mandamus to enter judgment upon the verdict of
the jury before summoning such third person to appear. Com. vs. McClintock, 26.
2. Where a fund has been ordered into court by claimants, acting in good faith
and without intending to obstruct the progress of the cause, the court will not be
strict in imposing costs upon them, when unsuccessful. Dinsmore vs. Davis, 57.
3. The writ of habere facias can be used only to obtain possession of real estate,
but it will not be set aside because personal property is also mentioned. The
latter will be stricken out, and the writ allowed to stand. Herring vs. Reade, 67.
4. Nothing in the act of March 20, 1810 (Purd. 863), prohibits the Court of
Common Pleas issuing execution for the sale of either personal or real property,
upon a transcript filed in that court of the judgment of a magistrate, after an ex-
ecution has been issued by the magistrate and returned "no goods." Techner vs.
Karpeles, 169.

5. Such transcript is not merely a lien against the defendant's real estate; it is
also a final, conclusive, and irreversible judgment against the defendant, and
loses none of its incidents by being transferred to the records of the court. Id.
6. Wheeler vs. Moore, 12 Phila. 429 (C. P. No. 3), and Bradley vs. Ward, 12
Phila. 255 (C. P. No. 1), departed from. Id.

7. The act of 16th June, 1836, requires the first notice of sheriff's sales of real
estate to be at least twenty-one days before the day of sale. Saving Fund vs.
Thompson, 511.

8. The act of March 23, 1877, does not affect a sheriff's sale upon a judgment
entered on a note waiving stay of execution. Griffith vs. Thomas, 536.

9. When, under the act of 17th February, 1876, an order is made staying exe-
cutions on all liens against an assignee for creditors, the stay does not extend to
co-defendants in the judgments. Rosenheim vs. Morgan, 549.

10. The act of March 23, 1877, does not apply to a suit on a mortgage which
contained the following provisions: "All stay of or exemption from execution or
extension of time of payment which may be given by any act or acts of assembly
now in force, or which may be enacted hereafter, are hereby forever waived
and released." Gordon vs. Greene, 554.

11. The duty of the sheriff and the practice under this act discussed and ex-
plained. Id.

EXECUTORS AND ADMINISTRATORS.

See PLEADING, 3. DECEDENTS' ESTATES, 1, 2. COMMISSIONS, 2, 3, 4, 5, 6, 7.
ANNUITY, 2, 3, 4, 5, 6. ISSUE, 6, 7, 8. WILL, 15.

EXECUTORS AND ADMINISTRATORS (Continued).

1. When an executor has filed an account within the specified time, further
accounts are to be filed only "when legally required;" they will not, therefore,
be ordered when, under all the circumstances of the case, it would be unjust or
inequitable to do so. Seeger's Est., 199.

2. An administrator who can clearly and satisfactorily purge himself of an al-
leged contempt of an order to pay as per decree, may be discharged from impris
onment. Est. of Mary C. Stevenson, 209.

3. A discharge in the Common Pleas under the insolvent laws, will not entitle
the party to his discharge in this court if in custody for contempt. Id.

4. As to sufficiency of evidence of the non-existence of a marriage between de
cedent and his alleged widow, to justify revocation of letters of administration
granted to such alleged widow. Est. of P. J. Tholey, 215.

5. An accountant can claim no credit for a voluntary payment. Est. of Jacob
F. Derr, 224.

6. If an executor has assets, and suffers a just debt of the testator to remain
unpaid for several years, and then, after payment of interest and costs thereon,
claims credit for the same in his account, they will be disallowed, and charged to
him personally. Id.

7. An executor will not be deprived of his commissions because the condition
of the testator's affairs was such as to necessitate the employment of an account-
ant. Est. of Norman L. Hurt, 226.

8. One who had been trustee for a life-tenant, with a power of appointment,
was made executor by her. On an audit of his account, held after her death, a
certain sum was found to be in his hands, and upon this sum he was charged
interest from the date of the testator's death, the money not being needed for the
payment of debts. Est. of Josephine F. Clermontel, 235.

9. A person acting as trustee under one will and afterward as executor under
another, though dealing with the same fund, may receive a commission for his
services in each capacity. Id.

10. Allowance of counsel fees to an executor, and to a residuary legatee. Est.
of Robert Gray, 246.

11. The Orphans' Court has no power to compel an exercise by executors of the
discretion reposed in them by testator. The jurisdiction of the Orphans' Court
is statutory, and mere consent of parties cannot give it jurisdiction. Est. of John
Peterson, 265.

12. It is well settled that an accountant in the Orphans' Court must produce
vouchers or equivalent evidence of his payments in that capacity, and his own
testimony will not be ordinarily accepted. But the fact of payment having been
established, no principle of law forbids the administrator from testifying at the
instance of the other party, to the facts of a contract alleged to have been made
by decedent in his lifetime. Est, of James White, 287.

13. As to the proper form of stating executors' and trustees' accounts, the court
may direct accounts that are practically unintelligible to be re-stated at the ex-
pense of the accountant. Est. of Franklin Fell, 289.

14. Taxes, water-rent, and other charges against the real estate due at the time
of the death of decedent are properly to be included in the administration or
principal account. Those accruing since belong to the income or trust account.
ld.

15. Letters of administration granted to an adopted child vacated, no right to
the estate of such decedent having been shown by such child. Est. of Mary Ann
McCully, 296.

16. An administrator will be cited to file an account notwithstanding great
delay on the part of those entitled to it. Est. of Peter Landis, 305.

17. Liability of administrator for policies of life insurance taken out for the
benefit of persons indicated by the decedent. Est. of James Morrell, Jr., 305.
18. Held, That their primary object was not to raise a fund for the payment of
decedent's debts. Id.

19. A policy was taken out by the decedent in favor of his niece as security for
any indebtedness from him to her. Id.

20. Accountant is justified in attempting to collect any portion due decedent
after the payment of his debt to the holder of the policy. Id.

21. In the absence of negligence, etc., he should not be surcharged with any
alleged balance. Id.

22. Credit for payment of debts other than preferred debts should not be
allowed in the account of an administrator, especially in an insolvent estate;
they form no part of the administration of an estate, but of the distribution. Est.
of Wm. Overfield, Jr., 306.

EXECUTORS AND ADMINISTRATORS-(Continued).

603

23. Where accountant carried on decedent's business, the burden of showing
precisely what became of the assets of the estate is upon the accountant.
John T. Halloway, 317.
Est. of

24. A supplemental account was filed, consisting exclusively of rents collected
after the death of the widow, and which the accountants, except as "agents," had
ono right to receive. Est. of Geo. Shister, 333.

25. This was submitted to the auditor, under agreement that he should audit
and adjust the account of the accountants," either as executors or agents," of the
said estate. Id.

26. Held that the action of the auditor, with regard to this account, under the
submission to him, is not subject to revision in this court.
to revision at all is very questionable. Id.
Whether it is subject

27. The right of a surviving partner acting as executor or administrator of a
deceased partner's estate, depends wholly upon the exercise of the common skill,
prudence and caution required of an administrator, and also upon the strictest
good faith. Est. of John Unruh, 337.

28. An accountant is not relieved of his responsibility by reason of a voluntary
distribution of the money which ought to have been in his hands, among the
creditors whose claims were allowed by the auditor of his first account, and who
had already received a dividend of seventy-five per cent. Est. of Jos. Cairns, 350.
29. It is clearly erroneous for an accountant to include in her account as exec-
utrix, dividends upon railroad and bank stocks declared since the death of the
testator, as if belonging to the principal of the estate.
the income of the estate.
These dividends belong to
Est. of Park Hill Cassady, 365.

30. Evidence to sustain allowance of credit to executor for debt due him by
testatrix. Est. of Catharine Droste, 379.

31. An attachment will not be issued against an executor for not paying money
due by the estate until he has been ordered to pay it. Est. of Ruchel Goldsmith,

387.

32. It seems to be settled "that when a discretion as to the application of the
fund to charitable purposes had been vested in executors, and those executors
died during the pendency of a prior life-estate, the court would not exercise the
discretion, and the gift would fail." Est. of Nathan Dunn, 395.

EXEMPTION.

1. A non-resident of the State is not entitled to the benefit of the exemption
law of 1849. Snow vs. Dill, 138.

2. Decedent's real estate was sold by administrator for payment of decedent's
debts. The guardian for the minor children applied for the exemption of $300
under the act of 1851. Held, that he was entitled to it, although he had received
the rents of the real estate between the dates of decedent's death and the sale of
the real estate. Est. of Thos. McElroy, 320.

3. Adult children, married, and having adequate maintenances and means of
livelihood, are not entitled to the exemption provided by the act of April 14,
1851. Est. of John R. Steel, 398.

4. Where decedent leaves minor children, but no widow, the children are enti
tled under the acts of assembly to retain either real or personal estate to the
amount of $300. Est. of James Alexander, 564.

FIXTURES.

As between vendor and vendee, chattels affixed to the realty are to be consid
ered a part of it. Wilson vs. Steel, 153.

FORGERY. See CRIMINAL LAW, 10, 11.

FRAUDULENT CONVEYANCES.

Although it may be conceded that certain conveyances made by the decedent
to the accountant, his wife, were expressly designed to defraud future as well as
existing creditors, yet those who did not become creditors at all until after the
bankruptcy, which followed the conveyances, and who therefore had no interest
in the property conveyed, have no right to inquire into the transaction. Such
right can only be exercised by the assignee, and that for the benefit of the then
existing creditors. Est. of George Connell, 393.

GIFT. See DEBTOR AND CREDITOR, 3. HUSBAND AND WIFE, 7.

1. It is clearly shown by American authorities that any act on the part of the
owner of a chose in action, showing not only a present intention to transfer, but

GIFT-(Continued).

that he regarded himself as having carried such intention into effect, is sufficient,
and that no written evidence of the transaction is required. Est, of Franklin T.
Malone, 313.

2. It was early held that gifts causa mortis of choses in action might be made
by mere delivery of the evidence. Later decisions have established the principle
that there is no difference between gifts causa mortis and gifts inter vivos. Id.
3. The delivery may be proved by the declarations of the donor, just as the
gift itself may be. Id.

4. If a valid gift was made it is of no consequence that, as between husband and
wife, the former subsequently became the custodian of it. Id.

GROUND-RENT.

Plaintiff bought a portion of a tract of land charged with rent. Although the
whole amount of the rent was mentioned in the recital of his deed, it was held,
that having paid it, he could maintain a suit for contribution against the owner
of the other portion. Donagan vs. McKee, 48.

GUARDIAN AND WARD.

See TRUSTS AND TRUSTEES, 10, 17. EXEMPTION, 2.

1. An answer denying the statements of a petition for discharge of guardian
must be taken as true, there being no replication filed. Est. of Caroline Conrad,

207.

2. Duties and liabilities of testamentary guardians; circumstances under which
the court will direct security to be entered. Est of Stanton minors, 213.

3. As to allowance out of principal of estate for the maintenance and support
of minor children. Id.

4. Where a guardian has failed in his duty he is not entitled to compensation.
Est. of Schurr minors, 353.

5. Where both guardian and ward are non residents, and the guardian derives
his authority from the courts of another jurisdiction, he has no standing as such
guardian in the courts of this State, unless it appears by certificate that he has
given security in such other State in double the value of the property, and that
the law of such State extends the same privileges to citizens of this State. Est.
of Wm. J. Rice, 385.

6. Income which the will directs to be appropriated to the maintenance of a
minor and remains unexpended when she reaches her majority, should then be
paid to her directly. Est. of Kate Hartman, 387.

7. Petition for leave to sell minors' real estate should state the derivation of
the minors' title; and where the guardian's authority is derived solely from the
courts of another State, the ward also being a non-resident, it should be accom)-
panied by a certificate that the guardian has given security in the other State in
double the value of the property sold; and it should also appear that the law of
that State extends to citizens of this State the like privilege. Est. of Goldsmith
and Gamble, 389.

8. An allowance will not be made out of minor's property for support unless it
appears that the father is unable to maintain the minor or that the fund in ques-
tion is the only means. Est. of Frank R. Wood, 391.

9. The conviction of a guardian of conspiracy is sufficient ground for his re-
moval. Est. of Albert Soley, 402.

HUSBAND AND WIFE.

See CONTRACTS, 1. PLEADING, 2. LANDLORD AND TENANT, o. TRover, 1.
TRUSTS AND TRUSTEES, 8. EXECUTORS AND ADMINISTRATORS, 4.
GIFT, 1, 2, 3, 4.

1. The power of a married woman to charge her separate estate with debts for
necessary repairs or improvements, results not from the words of the statute, but
rather from construction and implication. Est. of Mary F. Lewis, 221.

2. It makes no difference whether her ownership is in severalty or in common
with others. Id.

3. It must be shown that she was an owner of the property; that she, by her-
self or her agent, made the contract; and that the work done or materials fur-
nished were necessary for the use and enjoyment of her property. Id.,

4. Quare-Whether "necessity" is not implied by the word "repair?" Id.
5. A wife's personal property received by the husband is not to be presumed
to be given to him, but, on the contrary, he is accountable as a trustee, unless he
can prove a gift. This rule applies, however, only to the principal, being directly

HUSBAND AND WIFE-(Continued).

the reverse as to the income, though, as to that received during the last year, the cases are conflicting. Est. of Robert Bardsley, 222.

6. Separation of a wife from her husband, whether with or without cause, cannot enter into the question of his liability to account to her for moneys collected as her agent, after she had revoked his authority to act. Est. of Norman L. Hart, 226.

7. Where the earnings of the wife were undoubtedly received by the husband with her full knowledge and consent, and his use thereof was with her entire acquiescence, the presumption would naturally arise that the wife intended the moneys thus received as a gift to her husband, and particularly in the case where they were used for their common benefit. Bardsley's Estate, ante, 222, cited and approved. Est. of Lewis N. Cogley, 308.

8. Decedent emigrated from England to this country in 1844, bringing with her one son, Robert, by her husband, Joseph Williams, from whom not having heard for twenty years, she subsequently married again in this country Arthur M. Nisbet, the exceptant in this case. At the time of her death she had been for a long time separated from her second husband. Her son had sailed for Australia in 1853, and had not been heard from. Est. of Rosa Williams, 325.

9. Testatrix in her will made no mention of either husband, but, under name of Rosa Doran, after making several minor legacies, bequeathed all the rest, residue of her estate to her executor in trust, inter alia, for her son "in case he can be found within twenty years. . . . after my death." Id.

10. Nisbet, the second husband, claimed to take against the will under the intestate law, and that the trust for the son was void under act of April 18, 1853, against accumulation. Id.

11. Held, That there was sufficient presumption of the death of the first husband to sustain the validity of the second marriage and Nisbet's claim to take under the intestate law half of the estate. Id.

12. The trust upon the executor of the other moiety is valid and must be sustained; it is clearly an active trust, with a possible remainder to support. Id. ILLEGITIMACY.

1. A marriage having taken place between testator and wife, who were then slaves in Virginia, at a time when such marriages were permitted, but not recognized as a valid contract by the laws of the State: Held, that the children of testator born in slavery were therefore illegitimate, and must be so considered in Pennsylvania. Est. of Geo. Hazzard, 335.

2. They could not have inherited from each other, and could have no collateral heirs. Id.

INDICTMENT. See CRIMINAL LAW, 5, 6.

INFANCY.

The facts as developed in this suit simply present a cause, in which a note drawn by a minor and indorsed by his father, was presented for discount, and was discounted. The father died insolvent, and equitable relief is asked for. Held, in every case of this description, in order to invoke the aid of a court of equity there must exist some relation of trust and confidence between the parties. Bank vs. Spering, 125.

INJUNCTION.

1. Upon a motion for a special injunction, a doubt is fatal to the motion. Shipley vs. Railroad Co., 128.

2. An injunction will not be issued to prevent defendant from tearing down a fence between defendant's and plaintiff's property, which had been already pulled down before the filing of the bill. Shell vs. Kemmerer, 502.

3. Nor will one be issued to prevent defendant from putting a window in his wall which would overlook plaintiff's property and destroy its privacy. Id. 4. A different rule applies as to party walls in Philadelphia. Id.

INSOLVENT. See EXECUTORS AND ADMINISTRATORS, 2, 3.

INSURANCE. See ACTIONS, 1. EVIDENCE, 7.

1. The insured in his application for a life insurance warranted the truth of his answers to certain questions propounded by the insurer. In the policy it was stated that the insurance was made "in consideration of the representations made in the application." Held, that the representations referred to in the policy being