property of foreigners dying within a State, and to commit such administration to consuls of a nation to which the deceased owed allegiance.

In these circumstances it does not appear from any supreme judicial decisions, treaty or other paramount authority that a foreign consul has exclusive right to administer on the personal estates of his countrymen who die here. It is contended, however, that the treaty with Sweden entered into in 1911 is authority to support the claim of the petitioner, because in the Rocca vs. Thompson case no conclusion was based upon it as the right of action there arose to the making of the Sweden Treaty, the second paragraph of Article XIV of which is as follows: "In the event of any citizen of either of the two contracting parties dying without will or testament, in the territory of the other contracting party, the ConsulGeneral, Vice-Consul-General or Vice Consul of the nation to which the deceased may belong, or, in his absence, the representative of such Consul-General, ViceConsul-General, Consul, of Vice Consul, shall so far as the laws of each country will permit and pending the appointment of an administrator and until letters of administration have been granted, take charge of the property of the deceased for the benefit of his lawful heirs or creditors, and, moreover, shall have the right to be appointed as administrator of such estate."

In Vukelic's Estate, 143 N. Y. S. 679, the Surrogate Court decided that the treaty between the United States and Austria-Hungary confers upon Consular Officers the same immunities and privileges granted to functionaries of the same class conferred by the treaty between the United States and Sweden, and that the right of Consuls to administer estates of their deceased nationals, who die intestate, is an exclusive one. But when this decision was filed, the case of Austria-Hungary Consul vs. Westphal, 122 Minn. 122; 139 N. W. 300, had not been handed down by the Supreme Court of Minnesota. In this case the question before us is very carefully considered by that court and the conclusion reached is that under the Sweden Treaty a foreign consul has no paramount or exclusive right to the administration of the estate of his deceased national.

"In view, however, of the presumption so aptly

referred to by Mr. Justice Shaw in Ohio's Estate, 157 Ga. 552, against any intention on the part of the Federal government to invade, by treaty, the province of State law in a matter so inherently local, as distinguished from national, and likewise from a consideration of the subject matter and the provisions of this whole article, and especially the latter part, we have concluded that the right to appointment as administrator is conferred by such article upon the expressed condition that it can be claimed only 'so far as the laws of each country will permit.' It would certainly seem strange that the right to temporary possession and control until appointment of an administrator should thus be qualified and the right to be appointed administrator be given in unqualified terms. The former is often no less important than the latter. Likewise we cannot think, in the absence of clearly expressed intention so to do, that the Federal government intended to take the matter of administration of the estates of foreigners entirely out of the control of the States."

The views expressed by the Supreme Court of Minnesota should guide us in deciding that the treaty with Sweden does not confer the right here claimed by the petitioner.

In Pennsylvania the assets of an estate of deceased persons are regarded as a trust for the payment of their debts, and the right to take as his or her next of kin is subservient to the rights of creditors of the decedent. The estate of a decedent in Pennsylvania is cast upon the heirs at law directly the ancestor dies, subject, however, to the jurisdiction of the Orphans' Court to administer the same, first of all for the benefit of the creditors. Dewitt vs. R. R. Co., 21 Sup. Ct. 10. "We usually define the heir to be one upon whom the law casts the estate at the death of the ancestor, but with us the estate is cast subject to the jurisdiction of the Orphans' Court. Heirs are thus postponed to creditors. If it be said, as for some purposes it is correct to say, that the estate vests in the heir directly the ancestor dies, it must be understood to be a contingent interest, defeasable in behalf of creditors." Nicholl's Appeal, 128 Pa., 428. It is undoubtedly the purpose of the law in England and in many, if not all, of the States of this country to protect the creditors of a

decedent as against his heirs and next of kin, and this policy of the law experience and observation shows can be best conserved by having a citizen of the country administer the estates of decedents. In case the representative of a foreign government is conferred with the power of the administration of the estates of his deceased nationals, his natural inclination, and the character of his appointment by his government, would be in direct opposition to the fixed policy of our laws in that the protection of the heir and next of kin would receive his first consideration. Therefore, it is the duty of courts having control of decedents' estates to pursue the policy of committing their administration to residents, and to change that policy only when it clearly appears by paramount authority that the change is required.

And now, February 7, 1916, the petition is dismissed at the cost of the petitioner.

1915.

DELANEY vs. CITY OF CHESTER.

Practice-Pleadings - Statement of Claim-Practice Act of

The Practice Act of 1915 applies to all procedure after January 1, 1916, notwithstanding the suit may have been instituted prior to that date.

The Act is intended to simplify pleadings and expedite proceedings, and must be construed with a view of effecting these results.

A Statement of Claim should state facts only. If it contains inferences and conclusions it will be stricken off.

In the Court of Common Pleas of Delaware County. Motion to strike off plaintiff's statement of claim in No. 109, June Term, 1914.

A. A. Cochran, City Solicitor, for Motion.
W. S. Sykes, Contra.

Broomall, J., April 20, 1916. The above action was commenced on June 20, 1914. On February 9, 1916, the plaintiff filed her statement of claim. The practice Act of May 14, 1915, P. L. 483, requires that after January 1, 1916, procedure shall be as therein set forth. This applies to procedure after January 1, 1916, and does not relate merely to actions brought after that date.

The statement of claim does not conform to the requirements of the practice act. The defendant has moved to strike this statement from the record. This motion will have to be allowed with leave to the plaintiff to file a new statement.

The practice act is intended to simplify pleadings and expedite proceedings, and the act must be construed with a view of effecting these results. For instance, instead of incorporating in a statement of claim inferences and conclusions, the statement of claim in this case should be as follows:

1. The City of Chester is a municipal corporation, being a city of the third class.

2.

Seventh street running eastwardly from Welsh street was a public street of said city on February 26, 1914.

3.

On February 26, 1914, there was a paved sidewalk on the south side of Seventh street running eastwardly from Welsh street.

4. On February 22, 1914, snow existed on said sidewalk.

5. This snow became hardened and remained until February 27, 1914.

6. On February 26, 1914, at about 11 o'clock A. M., the said plaintiff was walking on said sidewalk and feil.

7. At the time of the said fall, the plaintiff became injured by a cut on her head, injury to both arms, and internal injuries accompanied with pain and suffering. 8. The said injuries have continued until the present time.

9. The plaintiff has expended money for medicines and medical attendance in connection with said injuries. W. S. SYKES, JAMES L. RANKIN, Attorneys for Plaintiff.

Delaware County, SS:

Elizabeth Delaney, the plaintiff above named, being duly affirmed according to law says that the allegations in the foregoing statement are true.

of..

Affirmed and subscribed to before me this......day
.A. D. 1916.

To the within defendant:

You are required to file an affidavit of defence to this statement of claim within 15 days from the service there

of.

W. S. SYKES,

24 East Fourth Street, Chester, Pa.

JAMES L. RANKIN, Law Building, Chester, Pa.

We, therefore make the following order:

Upon motion of defendant, the plaintiff's statement of claim in the above case is stricken off, with leave to the plaintiff to file a new statement of claim in accordance with the Practice Act of 1915.

MILLER ET AL. vs. PENNSYLVANIA RAILROAD

COMPANY.

Grade Crossing-Negligence-Presumption-Survivorship of Action-1915 Practice Act.

Decedent and his wife were struck at a grade crossing, the husband being killed instantly and the wife dying within three days. Suit for damages for the death of the father was brought by the surviving children, under the Act of April 26, 1855, P. L. 339. Held, that upon the death of the widow, without having brought suit, no right of action survived to the children for the death of the father.

But as this defense was not stated in the affidavit of defense it could not be set up at the trial of the case, to defeat the right of the plaintiffs to recover.

Under the Act of May 14, 1915, P. L. 483, all questions of law which were heretofore raised by the demurrer must now be set forth in the affidavit of defense. The defense intended to be offered at the trial must first be set up in the affidavit of defense, or it cannot be admitted.

Plaintiffs' witnesses having testified that the whistle was not blown at the proper distance from the crossing and the train was running at a high rate of speed, the question of defendant's negligence must be submitted to the jury, although this testimony was contradicted by the evidence for the defendant.

The position of the bodies of the victims of the accident, the horse and the wreckage all showing that the team was struck on the first track, and it being certain that if deceased had stopped, looked and listened at a proper point between the danger sign and the crossing he could have seen and heard the approaching train at a sufficient distance to have escaped injury, the presumption that he stopped, looked and listened is overcome.

Under these facts and circumstances the deceased must be held guilty of such contributory negligence as to prevent recovery by the plaintiffs.