before the register and testifying was not a probate of the will. The probate of a will is the judicial act of the register, and is attested by his formal decree or by some official act performed by his recognizing it as probated. The testimony of the witnesses, which the act of assembly requires in order to prove a will, is a prerequisite to the act of the register in granting probate of it. Without such testimony the register cannot act, but when the testimony is produced before him, and he is satisfied of the sufficiency of the proof to justify the probate of will, he enters a decree that the instrument "be admitted and recorded as the last will and testament" of the deceased. This is a judicial decree, and is the probate of the will. Says Duncan, J., in Logan v. Watt, 5 Serg. & R. 212, 214: "The probate of a will does not mean the exhibition of the evidence on which it is admitted to be recorded, but the sentence or decree of the register. It is a decision of the judge, from which an appeal lies to the register's court." In that case it was held, in ejectment, that a certificate of a register that a will of lands had been duly proved was admissible in evidence, under an act of the Legislature making copies of all wills and probates "good evidence to prove the gift or devise." In Loy v. Kennedy, 1 Watts & S. 396, the court, after reviewing the provisions of the act of 1832 as to the register's duties, said (page 398): "In the performance of this duty (in probating a will), the register is a judge, and admitting the will to probate is a judicial act, and the only remedy given to the party aggrieved is an appeal to the register's court." It was held that the decree of a register cannot be impaired in a collateral issue. In Holliday v. Ward, 19 Pa. 485, 489, 57 Am. Dec. 671, it is said by Black, C. J., delivering the opinion: "A register is a judge, and the admission of a will to probate is a judicial decision. * ** * Such judgment can only be set aside on appeal, and is unimpeachable in any other proceeding. The validity of the will is a fact, which the law infers from the decision itself of the register, and not from the evidence on which that decision was based (page 490 of 19 Pa. [57 Am. Dec. 671]). His attestation may be a simple certificate that the will was proved and approved. Whether the certificate sets out no evidence at all, or evidence insufficient, the will must be received if the register has not condemned it."

*

It will be observed, therefore, that the probate of Mrs. Coburn's will did not take place until June 20, 1906, and that letters of administration with the will annexed were not granted until three days thereafter. It appears from the testimony of the attorney for the defendant, who was consulted by his client about making the payment to Coburn, that the attorney went to Delaware county and examined the records there to see if any letters had been taken out on the

estate of Mrs. Coburn, but found that no such letters had been issued in that county. He also made inquiry at the register's office whether any proceedings had been taken in the estate of Mrs. Coburn, and was informed that there had been none. It was in consequence of this action that his counsel advised Storey to pay the mortgage to Coburn. At the time of the payment of the mortgage, April 5, 1906, it will be observed that the will had not been probated, and letters had not been granted in Delaware county. There was therefore nothing to prevent the payment of the mortgage to the administrator of Mrs. Coburn in Chester county. Even if this will had been produced in Chester county, and letters granted there on the date that the probate took place in Delaware county, the payment of the mortgage by Storey to the administrator would not be invalidated. This is the rule announced in every jurisdiction, and for the reasons assigned in the numerous cases which we have already cited. The subsequent discovery of a will after the granting of letters of administration will not void or invalidate acts performed by the administrator prior to such discovery. The authority conferred by the letters granted by the register authorizes him to administer the estate, to collect moneys due, and disburse them in discharge of the legal indebtedness of his decedent. Those dealing with him in good faith, and by virtue of the authority contained in his letters, will be fully protected. Our statute requires the register, on being advised of a will, to revoke letters of administration previously granted. Kern's Estate, 212 Pa. 57, 61 Atl. 573. But there is nothing in any of our decisions which warrants the conclusion that the acts of the administrator, done in pursuance of the authority granted him, are not of valid and binding force on the executor subsequently appointed and acting under the will. The reason of the rule is that the register in granting the letters of administration acts in a judicial capacity, and that his decree cannot be impeached collaterally, but if void or voidable must be attacked directly, and in the manner provided in the statute. Unless such conclusiveness is given to the decree of the register and the action of the administrator appointed by it, confusion would result, and no person would be safe in dealing with an administrator. A contrary doctrine would result in litigation, which would be neces sary to protect parties dealing with the administrator. It is apparent in the case in hand that Storey acted in the utmost good faith in paying the mortgage to Coburn, and the facts justified him in believing that Coburn was the proper legal authority to receive payment. He had known both Mr. and Mrs. Coburn. The mortgage was exe cuted and delivered in Chester county, and covered lands situate in that county. The Coburns had resided in the county, and

Storey had no information that would lead him to believe that Mrs. Coburn did not reside there at the time of her death. On the contrary, she was in that county at the time of her death, and her husband, in obtaining letters, swore that he and his wife resided there. Coburn was the proper person to administer the estate of his wife, and also the proper person to receive the interest on the mortgage. In addition to these facts the letters of administration, which were presented to Storey and his counsel before the payment of the money, disclosed on their face that Mrs. Coburn at the time of her death was a resident of the county, and had property and credits in that county. It would certainly be a dangerous doctrine to hold, under these facts, that the payment by Storey of the mortgage to the administrator was not a discharge of the indebtedness. Such a rule is not sustained by reason nor by any precedent to which our attention has been directed.

The assignments of error are sustained, the judgment is reversed, and judgment is now entered for the defendant.

(220 Pa. 420)

SHERMAN v. HERR.

(Supreme Court of Pennsylvania. March 16, 1908.)

1. EQUITY-ANSWER-EFFECT AS EVIDENCE

REBUTTAL.

The evidential effect of a responsive answer to a bill in equity denying the existence of a contract is overcome where three disinterested persons testify to the existence of the contract, and their evidence is supported by the testimony of plaintiff and admissions of defendant.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 19, Equity, §§ 715-724.]

2. SPECIFIC PERFORMANCE - CONTRACTS EN

FORCEABLE-MUTUALITY.

Where an oral contract for the purchase of shares of stock in a corporation provided that the purchase may be made by either of the parties as opportunity might offer for their mutual benefit, and that, after the shares were purchased, they should be equally divided between the parties, each paying one-half of the purchase price, the contract does not lack mutuality so as to prevent the court from decreeing specific performance.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Specific Performance, §§ 89-99.]

3. SAME-CERTAINTY.

Where an oral contract to purchase shares of stock of a corporation provides that the purchase may be made by either of the parties as opportunity offers for their mutual benefit, the stock purchased to be equally divided, each paying one-half of the purchase price, either party has the right, acting in good faith, to pay what he deems proper for the stock, and the other must pay one-half of the cost; and hence the contract does not lack certainty so as to preclude specific performance.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Specific 'Performance, §§ 61-68.] 4. SAME.

A contract to purchase shares of stock, providing that either party might purchase, and that the stock procured and the cost thereof should be divided between the parties, may be specifically enforced when the stock is not pro

curable in the open market and its pecuniary value is not readily ascertainable.

[Ed. Note. For cases in point, see Cent. Dig. vol. 44, Specific Performance, § 203.] 5. TRUSTS-CONSTRUCTIVE TRUSTS.

Where two persons contract with each other to purchase stock and divide the stock acquired and the expense incurred, and one of the parties having purchased stock refuses to carry out the contract, equity will hold him a trustee ex maleficio, and will enforce the trust. 6. SAME-DEFENSES.

Where the original subscribers to corporate stock agree that, if any of them desire to sell, they shall first offer it to the remaining subscribers, and it appears that of the remaining three original subscribers two had sold their stock to others in violation of the agreement, such agreement cannot be invoked against the third original subscriber when he attempts to compel another party to deliver to him stock which such party had contracted to deliver.

Appeal from Court of Common Pleas, Lebanon County.

Bill in equity by Ray T. Sherman against Rudolph F. Herr. Decree for plaintiff, and defendant appeals. Affirmed.

Argued before MITCHELL, C. J., and FELL, MESTREZAT, POTTER and ELKIN, JJ.

C. V. Henry and W. U. Hensel, for appellant. Charles H. Killinger, for appellee.

MESTREZAT, J. The court below found the following contract to have been entered into by the parties: "Ray T. Sherman, the plaintiff, and R. F. Herr, the defendant, on August 20, 1906, mutually and verbally agreed with each other to procure by purchase the 150 shares of stock of A. G. Stauffer and the 150 shares of stock of W. A. Wengert in said Calcite Quarry Company for their mutual benefit, the purchase to be made by either of them, as opportunity might offer, and, aftter being so purchased, the said shares were to be equally divided between them, each paying one-half of the purchase price." There was ample evidence before the court to support this finding. At least three disinterested witnesses in addition to the plaintiff and the admissions of the defendant sustain the contract as found by the court. The responsive answer of the defendant to the bill was therefore overcome by the testimony on the part of the plaintiff. In fact, the defendant's own admissions when on the witness stand tend to contradict his answer filed to the plaintiff's bill. The learned judge was clearly right in finding the contract to be as he has stated it in his opinion. There was no Sherman lack of mutuality in the contract.

and Herr agreed to buy the 300 shares of stock owned by Stauffer and Wengert, and divide the shares between them. Either party was to make the purchase as opportunity might offer, and each was to pay onehalf of the purchase price. The contract was therefore mutual, and the mutual promises constitute a valuable consideration and make the contract valid. Berger's Appeal, 96 Pa. 443; Fitzsimmons v. Lindsay, 205 Pa. 79, 54 Atl. 488; 23 Cyc. 452. The contract be

tween the parties contemplated the purchase of the Stauffer and Wengert stock, and its division equally between the plaintiff and the defendant. It is true there was no specific price fixed by the parties in their agreement at which the stock was to be purchased. This however, was not necessary to the validity of the contract. The stock was to be purchased for the mutual benefit of the parties, and either was authorized to make the purchase whenever there was a favorable opportunity. The price at which the purchase was made fixed the price which the one making the purchase was to receive from the other party. The main and important feature of the agreement was the purchase of the stock; both parties being willing to pay the price at which it could be obtained. Each party, therefore, was unrestricted as to the price he should pay the owner of the stock, and the other party was bound to accept it at the price at which, in good faith, the purchase was made. Either party making the purchase had the right to enforce contribution from the other for the one-half of the money expended to obtain the stock. The contract as to price, therefore, is capable of being made certain, and hence the maxim id certum est quod certum reddi potest, is applicable.

We have no doubt as to the right of the plaintiff to have specific performance of the contract. It appears from the findings of the court that the stock is not procurable in the market and its pecuniary value is not readily ascertainable. It further appears that the stock is of peculiar value to the plaintiff in order that he may obtain a proper and legitimate control over the management of the corporation. In such cases the court will require the party to specifically perform the contract and deliver the stock. 26 Am. & Eng. Ency. of Law (2d Ed.) 122; Leach v. Fobes, 11 Gray (Mass.) 506, 71 Am. Dec. 732; Cushman v. Thayer Manufacturing Jewelry Company, 76 N. Y. 365, 32 Am. Rep. 316; Bumgardner v. Leavitt, 35 W. Va. 194, 13 S. E. 67, 12 L. R. A. 776. Under such circumstances, the injured party would sustain irreparable injury, and adequate relief could not be given by an action at law. Equity would therefore afford him relief. Northern Central Railway Company v. Walworth, 193 Pa. 207, 44 Atl. 253, 74 Am. St. Rep. 683; Goodwin Company's Appeal, 117 Pa. 514, 12 Atl. 736, 2 Am. St. Rep. 696; New England Trust Company v. Abbott, 162 Mass. 148, 38 N. E. 432, 27 L. R. A. 271. The contract entered into by the parties required them to act in the utmost good faith towards each other in purchasing the stock. Each acted for the other as well as himself. Equity, therefore, will not permit the purchaser to hold the stock which was purchased for the other party. A party purchasing stock under the circumstances of this case becomes a trustee and holds it for the other party in the joint venture. 23 Cyc. 455. He is a trus

tee ex maleficio for the plaintiff, and as such is required to account to the plaintiff for the one-half of the stock he purchased. Kennedy v. McCloskey, 170 Pa. 354, 33 Atl. 117; Fairlamb v. Hempshire, 7 Wkly. Notes Cas. 92. Confidence was reposed by the plaintiff, and defendant in each other in entering into the contract to make the purchase of this stock, and justice forbids that it shall be abused. Rankin v. Porter, 7 Watts, 387.

It is argued by the defendant's counsel that the plaintiff is not entitled to relief in equity because it would violate the agreement between the original subscribers which provides that, in case any of them might desire to sell their stock, they shall first offer it to the remaining subscribers who should have the option to buy. That argument, however, overlooks the fact that there are only three of the original stockholders owning stock at this time, two besides the plaintiff, and that these two stockholders have by their action in selling their stock to other parties waived their right to insist upon the enforcement of the agreement between the original stockholders. There is therefore none of the present owners of the stock who are in a position to assert his right to enforce the agreement between the original stockholders to buy the stock of any one who desired to sell.

Under the facts found by the court below, which are amply supported by the evidence, the plaintiff is entitled to the relief he seeks in the bill filed in this case, and therefore the decree is affirmed.

as a board of revision for the year 1907. The appeals are still pending for trial in the common pleas of this county. The defendants are the county commissioners, 'the burgess and town council, the school directors of the school district, * * and William J. McCarty, collector of taxes of the borough of Dunmore.' Who the burgess is and who are the men composing the council and school board are not shown. Defense was taken by the commissioners 'on behalf of all the defendants' as appears by the an

swer.

"(2) Dunmore was incorporated as a borough by special act of assembly approved April 10, 1862 (P. L. 526). By the act of June 2, 1871 (P. L. 1325), and supplement of April 9, 1872 (P. L. 1053), it was divided into six wards, each of which elects an assessor for the term of three years in conformity with the provisions of the act of February 14, 1889 (P. L. 7), as amended by the act of May 8, 1889 (P. L. 133). At the spring election in February, 1904, assessors were accordingly elected in the several wards who afterwards qualified and assumed the duties of their respective offices for the term prescribed by law. The triennial assessment for 1907 occurred the last year of the term for which they were elected.

"(3) Some time in the fall of 1906 the blotters for this assessment were delivered to the assessors by one of the county commissioners, coupled with the instructions as to their duty to organize and proceed with the assessment as a board of assessors. Thereupon the same evening they did so organize by the election of a chairman and a secretary. This was followed by a general discussion as to methods in which committees of the school board and town council took part. It was agreed that on a certain day the board as so organized should meet with these committees and go over certain principal streets, with view to the adoption of some standard of valuation which it was assumed could be used by the assessors as a working basis in order to secure reasonable uniformity in assessment.

"(4) Three of the assessors accordingly met the committees, and in the absence of the other three made some effort to carry out the plan, but, failing to agree on such basis, one of the assessors withdrew. The other two made some further effort looking to uniformity as between their own wards. After that each made his assessment in his own way without reference to the others, except that before returning their blotters , to the commissioners there was another meeting of the assessors at the town hall for discussion. To what extent, if at all, the assessments were supervised by their organized actions as a board before their returns were made, is very uncertain.

"(5) After their blotters were returned, however, and before they were accepted by the commissioners, the assessors in a body

met with the commissioners in one of the courtrooms. The date of this meeting is not definitely shown, but would appear to have been in April or early in May, 1907. The school board had a representative present on that occasion. There was also another taxpayer present, but whether as representative of the council is not clear. At that time the assessments were generally canvassed, and such changes were made in the valuations as by common consent of the assessors or a majority of them were thought necessary or proper. Afterwards sitting as a board of revision, the commissioners' office shows that the revision for the borough of Dunmore began on May 31, 1907, and continued from day to day until complete. As so adjusted, the total valuation was $4,259,283 as against the last preceding valuation of $1,979,356.

"(6) The assessors were instructed by the commissioners to enter full valuation on their blotters. So far as appears, in the first instance, they disregarded the instruction. Two assessed at what they considered onethird and another at some fraction not considered by him to exceed one-half the actual value. Whether the other three failed to assess at full value does not appear. In the opinion of one witness the final assessment as revised by the commissioners varies materially in a number of instances from the actual value; generally as being too low, although in a few cases he considers it too high.

"Conclusions of Law.

"(1) The act of July 9, 1901 (P. L. 613), applies to the borough of Dunmore. It requires that in making the valuation of property the assessors of all the wards shall act as a board of assessors, and as such shall make the assessment of all subjects of taxation in the borough for all purposes, with return thereof, to the county commissioners, subject to their revision under existing laws. It is further provided by the act that the triennial assessment shall be made in the last year of the term for which the assessors are elected.

"(2) By the act of May 15, 1841 (P. L. 393), assessors are required to assess each subject of taxation at its market value as nearly as it can be ascertained.

"(3) In this case, while the assessors organized as a board, they failed to conform to the act of 1901 in making the 1907 assessment, except as they met with the commissioners in a body and adjusted the assessment after their blotters had been returned as stated in the fifth conclusion of fact.

"(4) The presumption is that the commissioners, local authorities, and all other persons concerned had the benefit of the concurrent action of the assessors in that adjustment. There is nothing to overcome this presumption. The conclusion is therefore warranted that in this way the purpose of the statute was substantially accomplished.

"(5) Jurisdiction to inquire whether the assessment was made in conformity with the laws of the commonwealth and property assessed at not less than its actual value is lodged with the commissioners sitting as a board of revision under the act of July 27, 1842 (P. L. 446, § 13). The presumption is that such jurisdiction was properly exercised and irregularities were corrected in this case. This conclusion is not invalidated by the opinion of a witness that, as finally revised, some properties are overvalued and others undervalued. That only raises questions which may be tried at the instance of the taxpayer affected upon appeal from the action of the board of revision. As to three of the wards the presumption is that the assessments as returned were at not less than the actual value in accordance with the assessors' oath of office.

"(6) Hence the evidence does not warrant the conclusion that in its entirety the assessment is illegal and void, and that the defendant taxing authorities are without jurisdiction to levy and collect the taxes in question.

"(7) For whatever special injury either of the plaintiffs may have sustained in the premises he may have redress at law through his pending appeal.

"(8) Any supposed injury that may be common to all the taxables of the borough by reason of the failure of the assessors to act at all times as a board would be of infinitely less consequence than the inconvenience to the defendants which would result from a decree annulling the assessment. It would, moreover, be impracticable to cause a new triennial assessment to be now made, because the assessors have gone out of office and been succeeded by others who can only make a triennial assessment in the last year of their term.

"(9) Therefore because, first, it cannot be said the assessment is void; second, the relief asked for would confer little if any benefit upon the plaintiffs, especially in conparison with the inconvenience the defendants would thereby suffer; third, the plaintiffs have a remedy at law; and, fourth, the impracticability of getting a new assessment by the proper officers at this time-the injunction asked for should be refused, and the bill dismissed, at the plaintiffs' costs." Argued before FELL, BROWN, MESTREZAT, POTTER, and STEWART, JJ.

M. J. Martin and John G. McAskie, for appellants. John P. Kelly, John J. Toohey, County Sol., Clarence Balentine, Joseph O'Brien, and William J. Fitzgerald, for appellees.

PER CURIAM. If the appellants were aggrieved by reason of the excessive valuation of their properties for taxation, the law furnished an adequate remedy by appeal to the county commissioners and to the court

Act May 2, 1889 (P. L. 66), defining and regulating escheats, is not unconstitutional as depriving the relatives of the decedent of property without due process of law, because it limits the period within which any interested party can traverse the final adjudication to three years.

3. COURTS-ORPHANS' COURT-JURISDICTION. The orphans' court has no jurisdiction whatever in proceedings in escheat, except as given by Act May 2, 1889 (P. L. 66).

4. EXECUTORS AND ADMINISTRATORS-Decree OF DISTRIBUTION-VACATING.

Where the orphans' court enters a final decree of adjudication and distribution, and in a different proceeding enters a final decree in escheat, it cannot, subsequently at the instance of relatives of the decedent, open the decree of distribution and order restitution of money by the state without having previously vacated the final decree of escheat.

Appeal from Orphans' Court; Allegheny County.

In the matter of the estate of James Alton, deceased. From the decree opening decree of distribution, the commonwealth appeals. Reversed.

The orphans' court entered the following decree:

"And now, to wit, October 30, 1907, this matter came on to be heard upon petition and demurrer thereto, and was argued by counsel, and thereupon, upon consideration thereof, it is ordered, adjudged, and decreed that the decree of distribution made in above case on February 23, 1897, at No. 76, March term, 1897, be and the same is hereby vacated and set aside, and it is further ordered and decreed that the commonwealth of Pennsylvania, distributee of the fund as shown by said decree, viz., $5,192.81, refund and pay to petitioners as next of kin of said defendant in accordance with the following schedule