TRITSCHLER v. TRITSCHLER.
Will-Construction-Advancements.

Where a testator directs that a certain sum "be first paid to them (two sons) out of my estate as an advance before any other legacies or bequests herein given are paid," and then provides that the estate, real and personal, be "divided among all my children or their heirs, including my above named two sons (naming them) in equal shares, share and share alike," the intention of the testator in the latter paragraph, was that the two sons should participate equally with the other children, although they had already secured the advancements.

In the Court of Common Pleas of Lehigh County. No. 37 June Term, 1917. Louisa Tritschler, Executrix, etc., of Charles Tritschler, deceased, v. Louis P. Tritschler, Attorney-in-fact for the Heirs of Henry Tritschler, Sr., deceased. Case Stated.

H. B. Frederick and Dewalt & Reno, for Plaintiff.
Butz & Rupp and Robert L. Stuart, for Defendant.

Groman, P. J., October 13, 1919. The principal matter involved in the suit herein is whether the bequest to Charles Tritschler, under the will of Henry Tritschler, deceased, is an advancement or a special legacy. Generally, the principle of advancements applies to the estates of intestates; the decedent may only by will free and clear of ambiguity, in the distribution of his estate, and the equalization of the distribution, provide for advancements made: Schneider's Appeal, 16 Pa. St., Page 407 (1851) Keiser v. Keiser, 199 Pa. St., Page 77 (1901); Lefever's Estate, 39 Pa. Sup. Ct., Page 189 (1909); McKibbin's Estate, 207 Pa. St., Page 1 (1903). Was the language of the will free and clear of ambiguity so as to indicate that the bequest was in the nature of an advancement? The language in the will relied upon to indicate an advancement is as follows: "to be first paid to them out of my estate as an advance before any other legacies or bequests herein given are paid, to be paid to them on each of them respectively arriving at the age of twentyfive years." Paragraph five in the will provides that the estate, real and personal be "divided among all my children or their heirs, including my above named two sons, Henry and Charles, in equal shares, share and share alike," when the heirs "shall respectively have arrived at the age of twenty-five years." The language used is

not free and clear of ambiguity, in fact, it is open to a double construction, and does not come within the rule. Testator, in the final distributon, provides that after the death or remarriage of his wife, his estate is to be divided among all the children, including his two sons, Henry and Charles, "in equal shares, share and share alike." In paragraph four, he bequeathed to his two sons each the sum of fifteen hundred dollars, to be paid them in advance; in the final division he refers to all his children "including his two sons, Henry and Charles," "in equal shares, share and share alike." The sons, Henry and Charles, were the first beneficiaries of testator's generosity, and after bequeathing to them the sum of fifteen hundred dollars he further provides for the distribution of his estate in equal shares, share and share alike, including his two sons.

We are of the opinion that plaintiff is entitled to judgment against the defendant in the sum of One Thousand Dollars, with interest and costs.

Now October 13, 1919, Judgment is hereby entered in favor of the plaintiff and against the defendant for the sum of One Thousand ($1,000) Dollars, with interest and costs of suit.

AUTOMOBILE FINANCE CO. v. STANDEN. Replevin-Claim Property or Counter Bond-Filing of Bond -Act of 19 March, 1903, P. L. 39.

The counter bond in replevin provided for in the Act of 19 March, 1903, P. L. 39, must be filed with the prothonotary.

In the Court of Common Pleas of Delaware County. Exceptions to counter bond. No. 446, December Terni, 1918.

W. R. Fronefield, for Exceptions.
J. E. Walker, Contra.

Broomall, J., October 27, 1919. These exceptions raise the question whether the eighth section of the act of April 19, 1901, P. L. 88, re-enacted by the second section of the act of March 19, 1903, P. L. 39, applies to

claim property bonds in replevin. Prior to the act of 1901, replevin bonds and claim property bonds were given to the sheriff, who was responsible for their sufficiency. The acts of 1901 and 1903 were passed for his relief in this respect. The reason for this relief was applicable as well to claim property bonds as replevin bonds. This legislation should be so construed as to give efficiency to this entire relief. The act of 1901 provides for the replevin bond to be given by the plaintiff to be given to the Commonwealth and filed with the Prothonotary. It provides for the claim property bond or counter bond to be given to the Commonwealth and to be filed. It does not specifically say where the latter bond is to be filed, but this is the usual phraseology for depositing the bond with a record of the case in the prothonotary's office. The eighth section of the act is, "The prothonotary shall in the first instance fix the amount of bail and approve or reject the security offered; his action in either regard shall be subject to revision by the court." It is to be noticed that the word "bail" is used in this quotation, which is equally applicable to the claim property bond as to the replevin bond, both of which are previously mentioned in the act.

A different construction has been given to this section by different courts. In Hill v. Mervine, 29 Pa. County Ct. Reps., 262, it is held that the eighth section of the act does not apply to the claim property bond. It is to be noticed that in the reasoning of this case it is stated that the authority of the prothonotary in the first instance is to fix the amount of the bail in the replevin bond. But the authority of the prothonotary as above stated under this section is to fix the amount of bail. It is therefore not restricted to the replevin bond. In Tyger v. Chambers, 63 Pittsburgh Reps., 697, it is held that the prothonotary shall in the first instance fix the amount of bail and approve or reject security offered both in the claim property bond or counter bond as well as in the replevin bond.

We think the better practice is in accordance with the latter case. In accordance with this practice, the sheriff would not be justified in delivering the property under a claim property bond until the prothonotary has

fixed the amount of the bond and approved the security, and his action in this respect has been confirmed by the court. This construction protects the sheriff fully in respect to counter bonds as well as in replevin bonds.

It follows therefore that the exceptions of the defendant are sustained and a procedendo is awarded to the defendant to go forward and have the amount of the counter bond fixed by the prothonotary, and the surety approved by him subject to the revision of the court.

COMMONWEALTH v. ALTLAND.

Banking-Improper Credit-Fraudulent Conversion of Property Act of May 18, 1917, P. L. 24.

A defendant who had an account in a bank, and was there credited by mistake with a sum of money deposited by another person, and who subsequently closed his account, withdrew his balance and refused to return the amount when notified, although he must have known the credit was wrong by the accustomed volume of his bank business, was properly convicted under the Act of May 18, 1917, P. L. 241.

In such case the offense was committed, not when the defendant obtained possession of the money, but when he fraudulently withheld it on discovery of the mistake.

In such case it is sufficient to prove that the prosecuting bank was engaged in the banking business without proof that it was a corporation, as alleged in the indictment.

In the Court of Quarter Sessions of Lancaster County. Indictment for conversion of property under the Act of 1917. Rule for a new trial. April Sessions, 1919, No. 96.

B. F. Davis, for Rule.

H. Edgar Sherts and S. V. Hosterman, Contra.

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October 18, 1919. Opinion by Hassler, J. The defendant was convicted on an indictment which charged that he did receive and take into his possession money, to wit: the sum of Four Hundred and Forty-four Dollars and Fifty-two Cents ($444.52) belonging to the Farmers National Bank of Quarryville, Pa., a corporation organized under the laws of the United States which he, the said Charles F. Altland, did then and there unlawfully and fraudulently withhold, convert and apply to his own.

use and benefit, contrary to the form of the Act of Assembly, etc."

The indictment is drawn under and is in the exact language of the Act of May 18, 1917, P. L. 241.

Nine reasons for a new trial have been filed. They largely question the reasonableness of the Act of Assembly rather than the correctness of the defendant's trial and conviction. With that we have nothing to do, and therefore no not deem it necessary to consider these reasons further than to call attention to the fact that the act does not make the obtaining possession by a person of the money, etc., of any person, firm or corporation, an offense, but only the fraudulent withholding, converting and application of the same to his own use or that of another.

In this case the defendant, who had an account at the Farmers National Bank of Quarryville, Pa., was credited by mistake with the sum of Four Hundred and Forty-four Dollars and Fifty-two Cents ($444.52), the same having been deposited by the defendant's brother, to whose account it should have been credited. The defendant shortly afterwards closed out his account and opened a new one at another bank. When the mistake was discovered the cashier notified the defendant of it and requested him to return the amount. He subsequently wrote to him that he had been improperly credited with the amount mentioned, and asked him to return it. After waiting several months for the defendant to return the money, which he thus fraudulently continued to withhold, and which he had coverted and appropriated to his own use, this prosecution was commenced.

The fraudulent withholding of the money and converting it to his own use commenced when he refused or failed to return it upon discovery of the mistake or upon request: Com. v. Dissinger, 31 L. L. R. 281. The defendant not only refused to return it when requested, but must have known at the time he discovered the credit in his bank book that it did not belong to him. The balance usually carried in his account, the amount of his deposits, and the volume of business done by him, all clearly showed that he must have discovered a mistake of this kind. In fact, he testified at the trial that if he were improperly credited with it he would have known it. His explanation,