alone, not having joined his said co-ad- of Lysander, the acting administrator. ministrator as plaintiff in the revival After that lapse of time, a presumption thereof. That no account of the amount of said two judgments has been settled and filed by said administrators of said John Findley, deceased, or either of them. has arisen that the estate was duly settled and the full distributive share of the petitioner paid to her, which it requires satisfactory and convincing evidence to rebut, especially after the death of the principal debtor; Gregorry v. Commonwealth, 121 Pa. 611. That no part of the amount of said two judgments has been paid to the petitioner. by said administrators or either of them. Rejecting the testimony of the incomThat the amount of said two judg-petent witnesses above referied to, there ments were in the hands of Lysander W. is an absence of any sufficient evidence to Findley at the time of his death. repel the presumption of payment, esof the claimant shows that she was paid pecially as testimony adduced on behalf considerable sums of money by Lysander W. Findley on this account. The petitioner, therefore, showing that the estate of said John Findley, deceased, is still unsettled, and that the personal estate of said deceased remained in possession of said Lysander W. Findley, one The circumstances relied on to repel of said administrators, and that the pre- the presumption of payment are: 1st, sumption of payment pleaded by Lemon evidence that no administration account Love, administrator of the estate of said was ever filed in the Register's office; 20, Lysander W. Findley, deceased, by lapse the collection in 1874 by Lysander of a of time, is repelled by the facts and state- judgment belonging to his intestate; 3d, ments hereinbefore set forth, respectfully vague and equivocal statements said to prays that the said Lemon Love, admin- have been made by Lysander, not istrator as aforesaid, may be required to amounting to an admission of indebtedsettle and file an account of the personal ness nor a promise to pay. These facts estate of said John Findley, deceased, which came into the hands, possession or control of said Lysander W. Findley, deceased, as prayed for in the petition on which said citation was awarded. James Kell for petition. H. W. McCall for Finley. April 23rd, 1894. LATIMER, P. J. Lysander W. Finley being dead, and his interest in this controversy having devolved, by act of law, on Lemon Love, his administrator, a party to the record: who represents that interest, neither of the surviving parties. S. J. Findley, coadministrator with Lysander, and Martha A. Chandlee the claimant, nor Wm. E. Chandlee, husband of Martha, was competent to testify to any matter occurring in the lifetime of Lysander; the effort, and the purpose and object of the testimony being to charge Lysander's estate. Act 23rd May, 1887, 85 (e), Purd. Dig. 2199. · The petitioner delayed to present her petition for this citation unti! twentyseven years had elapsed from the death of John Findley and until after the death and circumstances are manifestly insufficient to rebut the presumption of the payment to this claimant of her full distributive share of her father's estate, because they may all be true consistently with the truth of that presumption. To rebut the presumption the proof must be of facts and circumstances inconsistent with the truth. For so plain. a proposinecessary. But in addition to Gregory v. tion no citation of authority ought to be necessary. But in addition to Gregory v. Commonwealth, 121 Pa. 611, Norris Ap., 71 Pa. 106, 120; Bentley's Ap., 99 Pa. 500; Commonwealth v. Snyder, 62 Pa. 163; McClean v. Findley, 2 Pa. 97; WilBrown, 2 Watts 209, are full to the point. kinson's Estate, I Pars. 170; Fulk v. From what has been said it is plain that this petitioner is not entitled to demand an administration account of John Findley's estate whether from the pursual representative of the deceased administrator nor from S. J. Findley, the surviving administrator, whom she shows by her own evidence to have taken no part in the administration. The petition for a citation is dismissed. and the petitioner directed to pay the costs. Montgomery Co. Young's Estate. Distribution-Claim-Evidence. A claim was made by a widow against her deceased husband's estate for money due her before marriage, and for part of which she held his note. The day before their marriage she burnt the note and said she had given him the amount secured by it. She however fre quently declared that he still owed her the amount, and so stated a few days before his death. The auditor's finding in favor of the claimant was sustained. Decedent's being sick, and having money in hand which he wished to be in a safe place, proposed a deposit in his wife's name, which was done. He at once demanded a check from her, so that in case of death he would have no Exceptions to auditor's report. May 21, 1894. WEAND, J.-The main contest in this case arises over a claim by a widow against her deceased husband's estate, and the party resisting the claim is the residuary legatee. Both auditor and counsel treat the case as one where a husband receives the money of his wife. This is inaccurate, as the undisputed testimony shows that decedent received the money claimed by Mrs. Young from her before their marriage, or at least was indebted to her to the amount claimed before that time. This is unimportant, however, for it is undisputed that Mr. Young did at one time owe Mrs. Young $2,300. It is claimed, however, that upon their marriage she presented him with $1,000 of this amount, for which she had held his note. The evidence of this fact is contained in the testimony of Elizabeth K. Young, who testified that the day before their marriage ma (meaning Mrs. Young) said to her, "Here is this note" (producing the $1,000 note). "I have given it to pa, and I want you to burn it." Upon the witness refusing to do so, the future Mrs. Young threw the note into the stove, saying, "There, it's gone"; and that frequently, in after years, she remarked, "I have given the $1,000, you know, to pa, but I would like to have the interest of the other." The witness is the mother of the residuary legatee. In support of the alleged gift of $1,000 it is also claimed that the parties had entered into an ante-nuptial agreement by which this $1,000 was given to decedent. The same witness, Elizabeth K. Young, testified that she had seen this agreement on the day it was signed, when it was in the possession of her father-in-law, the decedent. She testifies to no other part of the contents of the paper which has not been produced. This testimony was objected to because of the non-production of. the paper itself; but as this was the only objection, we will treat the testimony as proper to show the contents of a lost document. Up to this time we think the evidence of a gift was sufficient. In rebuttal the claimant has shown by the testimony of Elizabeth Cope, a niece of the testator, that she often heard testator say that "his wife had had $2,300 when he married her, and that he had the benefit of it. He often went over it. Just the Friday before he died he said he owed it to her. His wife was often present when he talked about it. The Friday before his death she was not present, but he said that he ought to have given it to her before he had things fixed.' Mr. Sobenheimer, who had been counsel for testator, testifies that he told him that he had this $2,300 from his wife, and that he owed it to her; and that if he was successful in a suit then pending concerning a $2.300 mortgage, he would turn it over to her in settlement of the $2,300 he owed her. These declarations of the debtor against himself after the marriage are competent, whilst those in his favor made in the absence of the wife are to be rejected. The question therefore resolved itself into one of fact to be decided by the auditor, and we see no reason to disturb his finding. No one was better able to decide as to whether the whole amount was still due than the testator himself, and when he repeatedly admitted his indebtedness the positive testimony in this respect would outweigh any inferences to be drawn from the wife's declarations, and would support the theory that he was not willing to receive or did not receive the money as a gift. Certainly, if he were now defending the claim, these admissions would establish his liability; and the legatee can stand in no better posi tion. The auditor has submitted abund- have no testimony showing what Mrs. ant reason for his conclusion, and we can not say that he was in error. It is also asked that the executor be surcharged with the sum of $900, o which amount it is claimed that $700 was deposited by testator in banks in the name of his wife, and the balance of $200 was money in the house at the time of testator's death. It is not claimed or shown that the executor had any knowledge of these amounts when he filed his inventory, and under the evidence he ought not to be charged with any part of it unless it can be deducted from Mrs. Young's claim. As to the $200 there is no evidence that Mrs. Young had possession, control or knowledge of it, and we fail to see how she can be chargeable with any portion of it, even if it belonged to Mr. Young's estate. Young did with the $700 so deposited. It is claimed that this was a gift to Mrs. Young, or rather that the testator intended to place this amount to her credit as a provision for their necessities during his illness, and as a provision for her immediate needs after his death, and the auditor has declined to charge her with the amount. We think he erred in this conclusion. Keeping in view the condition of Mr. Young at the time and his inability to attend to business, the desire of all parties to deposit the money to provide against theft and fire, the reasonable construction to place upon what followed is that testator simply desired to 30 place the amount as that it might be both safe and available for use. His first proposition to allow Mrs. Elizabeth K. Young to deposit it in her name could not be The substance of Elizabeth K. Young's construed into a wish to make it a gift to testimony in relation to the $700 is that her. He then suggests a deposit in his a week before testator's death she was at wife's name, and asks for her check so testator's house, and in presence of her- that "in case of [her] death I will have self, Mr. and Mrs. Young, a conversation no trouble to get it." Here is an exwas had in reference to the deposit for pressed intention not to part with the safe keeping of an amount of money ownership, for he demands a check as which had been collected, when Mr. Y. evidence that although the deposit was proposed that the witness should take in Mrs. Y.'s name yet that she owed him some of it to Philadelphia and deposit it the amount; and this conclusion is furin her name. The witness objected, and ther strengthened by his statement that suggested a deposit in a Norristown bank he had in view a loan of part of the deto which the testator assented. Upon be- posit. If Mrs. Young has expended any ing asked for his signature to accompany portion of the amount for a proper purthe deposit he thought a little and said, pose, she should have credit therefor; but "No; I have a better plan, I think. You as she has offered no testimony to show take ma and put it in her name." Accompanied by Mrs. Young, the witness made the deposit as suggested. On their return the bank book and checks were handed the testator, who then said, "I want a check made out for the full amount and ma to sign it, and give it to me to hold, Of the exceptions filed by the residuand in case of death I will have no trou-ary legatee the third and fourth are susble to get it." The witness then said, tained and the others are overruled. The "Oh, pa, you are so weak and worried exception filed by Sarah A. Young is disover business to-day; leave it rest for a missed, and the distribution account, as day or two. and you can fix it yourself." filed by the auditor, is corrected as folThe witness further said, "Mr. Young lows: did not disclose to me any special view he had in putting this money in bank in the manner he did. He told me what he thought he would do with a part of the money he put in bank. He told me he knew of a man he thought he could let Allowance to executor, etc... him have some money that spring." Mr. Young died shortly afterwards, and we an expenditure, she must be charged as a debtor to the estate with the whole amount of $700 and interest for one year. Her statement to the executor in reference to the matter can not be received as evidence in her favor. Principal account.. $7,040 91 230 00 $6,810 91 98 50 Balance for distribution... $6,712 41 $1,701 00 5,011 41 Costs Award of arbitrators-Judgment fee-Attorney as bail for appeal.5 00 In determining the amount of costs to be 1,696 00 paid on an appeal from an award of arbitrators, the test is the amount actually accrued, and not the amount as taxed by the prothonotary. It is error to include a judgment fee in such taxation. An attorney who is a stockholder in an appellant corporation, although within the letter, is not within the spirit of the rule of court which forbids an attorney to become bail on appeal without leave specially granted. -Wise v. Penna. Hard-Vein Slate Co., (Northampton C. P.) 4 Northampton County Reporter 204. $6,712 41 and as so corrected the report is confirmed, Abstracts of Recent Decisions. (Cases not otherwise designated are Supreme Court cases.) Decedent's estates-Widow's exemption-Purchase money-Judgment.-The Accounts absolutely confirmed-When satisfaction of a judgment for part of may be re-opened-Newly discovered evi- purchase money and the taking of a new dence. An account which had been ab- judgment for a smaller amount does not solutely confirmed may be re-opened on change the character of the judgment so account of new evidence as to facts, sub- far as the widow's claim for exemption is concerned. Where in a distribution of sequently discovered, which could not have been procured by due diligence be- money realized by a sale of decedent's fore. A petition was filed setting forth real estate there are two judgments, the second of which is for part of purchase that certain payments credited in an account which had been confirmed abso- money and the amount for distribution lutely were unlawful and erroneous, and exceeds the widow's claim for exemption, that the petitioners, sons of the decedent, the second judgment will be preferred to had no notice of the filing of the account the first judgment to the amount of the until just before their petition was filed, widow's claim, and the balance being as although they had searched the news- between the judgment creditors, will be papers for advertisement thereof. The paid on account of the first judgment.— executor's answer denied the alleged er- Engel Estate, (Monroe O. C.) 4 Northrors and set forth that the petitioners ampton Couny Reporter 198. were not interested in the distribution by reason of their indebtedness to the estate. HELD, that the account should be opened and submitted to an auditor for correction if erroneous.-Miller's Estate (Lancaster O. C.) II Lancaster Law Review 201. Consent of licensee to transfer-Interest in license of landlord who is a brewer. -The courts will make the transfer of a license without the consent of the licensee where the facts justify the action. Where the owner of a licensed property is a member of a firm of liquor dealers and the owner of a brewery, he has not such an interest in the business of the licensed premises as will prevent a transfer of a license to the premises under clause 7 of section 5 of the Act of May 13, 1887.Leahy's License, (Schuylkill Q. S.) II Lancaster Law Review 215. Decedents' estates-Claim against for board, etc.-It was claimed before the auditor that the decedent, who died intestate, had previously acted as housekeeper for the claimant, but had, six years before her death, become incapacitated and ceased to act as housekeeper and become a boarder with the claimant, who asked to be allowed compensation therefor. Testimony was conflicting as to the capacity of the decedent for work, and there was no evidence as to any demand by the claimant or of any contract with the decedent that she was a boarder or owed the claimant for boarding. At one time, however, the decedent said she was glad she had money so that she could pay the claimant, and again she said he should have all her money when she died for his trouble. HELD, that the claimant had failed to show that the relations of the decedent to him as his housekkeeper had Road Law Condition of road-Liachanged before her death, and he was not entitled to recover.-Long's Estate, (Lancaster O. C.) II Lancaster Law Review 196. Landlord and Tenant-Construction of lease-Surrender.-A surrender of de bility of township.-It is the duty of supervisors, not only to open roads in the first place, if properly laid out according to the act of assembly, but to keep them make them safe to travel upon, not only in proper repair and condition so as to mised premises by the tenant during the in the day time, but also at night. If suterm, in order to be effectual, must be pervisors failed to keep the roads in reaccepted by the lessor; and an acceptance pair and in reasonably safe condition, cannot be implied from the fact that the they would be negligent, and if damage results to any one by reason of the roads lessor put a rent notice on the premises, and endeavored to get a tenant but failed, being kept in a dangerous condition, so The rule of construction which attaches that they are not reasonably safe for pasmore relative importance to the written sengers and travelers by day and by night the township must respond in such than to the printed part of a contract is often a very useful one, but where the in- amount of damages as is a fair and reasonable compensation for injuries sufferterpretation and effect of the written por-ed by reason of their negligence. It is the tion are themselves in question, the other duty of supervisors to make the public portions of the contract, although print- highways safe by the erection of a guard ed, cannot be disregarded in the construc-wall or barriers, where a road or highway construc-highways tion. The word "occupy" varies in meanruns along the edge of a precipice.— ing according to the occasion and subject Glaub v. Goshen Township (Clearfield C. P.) 7 Kulp 292. matter. A lease was made for the term of one year at the rent of thirty-three dollars per month, the same to be paid Ten foot reservation-Bay windows.monthly "so long as he shall occupy the A deed conveying a certain piece of land said house and lot of ground." The ten- giving the privilege to fence in and ocand describing the same, with a clause ant moved out during the year. HELD, that the provision above quoted, constru-cupy ten foot in front of the front line of ed in the light of other provisions of the the lot for the purposes of yard, piazza, lease, did not mean actual dwelling on the porches, cellar-ways, vaults and baypremises, and did not give the tenant the window, followed by the usual clauses, right to terminate the tenancy at will: by which the appurtenances, reversions therefore he was liable for the whole year's rent.-Lane et al. v. Nelson, (Lu. zerne C. P.) 7 Kulp 286. Lien of wages.-Assignment.-Under the Act of May 12th, 1891, a creditor for wages has no lien on the personal property of an insolvent debtor, which has been transferred by the debtor, in good faith, to a creditor in payment of a debt. The lien for wages is not a specific lien on the property in the hands of the owner or of his vendee. The lien is created only by a sale or transfer, by execution. or otherwise, on account of the death or insolvency of the employer, which means a sale caused by operation of law, as by an administrator, executor, assignee or receiver, and not a sale by the employer. A debtor may lawfully prefer one creditor by transferring to him all his prop erty.-Wilkinson v. Patton, (Delaware C. P.) 5 Delaware County Reports 483. and remainders, and all the estate of the grantor in the premises are assured to the grantee, his heirs and assigns, conveys the ten foot privilege in a fee simple title, burdened with a restricted use running with and inseparably attached to the land. A bay-window may be either double or triple, it may form a bay to a building as well as a room, and it may extend upward for several stories commencing from the ground.-Jermyn v. Nelson, (Lackawanna C. P.) 4 Lackawanna Jurist 261. Trust deed-Power of revocationRemainder.-Where lands have been conveyed to a trustee, to manage during the grantors' lives and after their death to convey in fee to their children, without specific power of revocation, a re-convey ance cannot be enforced in a court of equity unless the remainder-men are made parties.-Willy v. Davis, (Delaware C. P.) 5 Delaware County Reports 473. |