thereby assumed it to be that much cash. They might have notified the plaintiff that they had received the check, and delivered it to him, or might have held it for collection before crediting his account. If he had accepted it as cash, the bank would have been exonerated, or if he had agreed they might hold it for collection before giving him credit, and had used due diligence in its collection, they probably could not have been held liable. But neither of these things was done; on the contrary, they assumed it as cash, and so treated it in their dealing with the plaintiff. We do not see how they can be relieved from responsibility. In the case of Bank v. Goodman, supra, we held that a bank which had received for collection from a depositor a check on another bank, and had sent the check to the bank on which it was drawn, and had received from that bank a draft on some other bank, which was not paid, was liable to its depositor for the check he had deposited. It was claimed that there was no negligence, because the usual course of business was followed. But we held this was not sufficient. The court below said, and we affirmed it: "The defendant assumed the responsibility of sending the evidence of the plaintiffs' right to have the money for which it called collected for their benefit, to the bank which was expected to make payment. Not obtaining the money, but a worthless draft, in return, the defendant, treating the draft as not paid, charged the amount of it back to the plaintiffs' account, and, when they called for the check, as the best evidence of their right to recover against the maker, they are informed: "The check you call for cannot be returned. was paid, charged to the drawer's account, and canceled.'" We held the same doctrine in Hazlett v. Bank, 132 Pa. St. 118, 19 Atl. 55. That an agent for sale has no power to receive anything but money in payment is too familiar a rule to require the citation of authorities to support it. A single reference to one of our most recent decisions, where the subject is reviewed, will suffice. Paul v. Grimm, 165 Pa. St. 139, 30 Atl. 721.

We cannot see how this case can be decided upon the question whether the bank used due diligence in collecting the check of Taylor & Co. It never was the property of the plaintiff. He did not deposit it, and had nothing to do with it. The defendant received it, owned it, held it, still holds it, and never even tendered it to the plaintiff. The bank treated it as cash on its own responsibility, and credited the plaintiff's account with the amount of it. We know of no principle upon which they can charge back to him a check which he never saw, never owned, never had any interest in, and upon which his name never did, and does not now, appear, either as drawer,

payee, indorser, or in any other manner whatever. The assignments of error are dismissed.

It is perfectly manifest that, if the bank had paid to the plaintiff in bank notes the amount of the check, and he had put them in his pocket, and gone about his business, the bank could never have recovered back the money. They could pay him the money if they chose, and he could receive it in good conscience. That being so, he could keep it, and could not be compelled to repay it. The law upon that subject is without question. The payment would be voluntary on the part of the bank, and, being such, the plaintiff could conscientiously receive it, and he could thereafter retain it. Now, it so happens that the actual facts make out just such a case. When the bank received the check, and credited the plaintiff's account, they gave him notice to that effect, and thereupon he drew a check for $1,600 against his account, which included whole amount of the sum credited, and $600 besides; and when the check was presented the bank paid it. It was not until after this that they charged back back the credit against the account. This, it is very clear, they could not do without his consent. Judgment affirmed.

MITCHELL, J. (dissenting). As to the stock, the bank was a mere agent for transmission and sale, not responsible for anything but negligence, of which there is no evidence. This is conceded. In the ordinary course of business, the bank received the check for the proceeds of the sale of stock, and, of course, its title to the check was only as agent for the real owner, the plaintiff. Treating the check as money also in the ordinary course of its business, the bank passed the amount to the credit of the plaintiff in his account. It is said in the opinion of the court that it is clear that as to the check the relation of depositor did not exist. But with great respect for my brethren who so hold, I think it perfectly clear that that was the exact relation. The bank treated the check as money of its depositor, credited it in his deposit account, so notified him, and he ratified and assented to its action by drawing against the sum. the basis of the alleged balance of deposit in his favor for which this suit is brought. Without that check as part of his deposit account, he has no such balance, his account is overdrawn. When the check came back unpaid, the bank charged it up against its depositor, to offset the formal credit which had been given him for it. This it had the right to do, just as if it had credited him with a deposit of $1,000 in bank notes or gold coin, which later were found to be counterfeit. It is also said that the bank still has the check, and has not delivered it to plaintiff. He refused it. When he was

notified that it had, come back, he said peremptorily he had nothing to do with it. In this he was wrong. It was the basis of a credit to which he was not entitled, and on which he should not be permitted to recover.

In re NEIDIG'S ESTATE.
Appeal of RUPLEY.

(Supreme Court of Pennsylvania. Jan. 3, 1898.)

ADMINISTRATORS REVOCATION OF LETTERS WHEN PROPER-DECREE OF ORPHANS' COURT. 1. A petition to the register of wills prayed that letters of administration of administration improvidently issued to R. be revoked. In his answer, R. denied that they were improvidently granted, and averred that those by whom he was nominated were the next of kin of the intestate, and that petitioners were not such next of kin as are entitled to administer. Held that, as soon as it was shown that the persons who nominated R. were not the next of kin, and that petitioners were, it was the register's duty to revoke such letters, and it was error to refuse to do so because the next of kin were incompetent to administer, since the latter question was not before him.

2. On petition of the next of kin of a decedent to revoke letters improvidently issued to one nominated by others than petitioners, the register of wills refused to revoke the letters because the next of kin were incompetent to administer, though the question of their competency was not before him. Held, that it was proper for the orphans' court, on appeal, to incorporate, in its decree revoking such letters, an order that letters be issued by the register to the nominee of the next of kin.

3. Where letters of administration improvidently granted to one not the next of kin or their nominee are revoked, he has no right to interfere with the granting of letters to any of the next of kin or their nominee.

Appeal from orphans' court, Cumberland county.

Petition to the register of wills by John S. Ocker and others for a citation to revoke the letters of administration on the estate of Emanuel Neidig, deceased, issued by such register to H. M. Rupley. The register refused to revoke the letters, and dismissed the citation, and the petitioners appealed to the orphans' court. From a decree revoking such letters, Rupley appeals. Affirmed.

The opinion of the orphans' court is as follows (Biddle, P. J.):

"Emanuel Neidig, an aged bachelor of Silver Spring township, died on the morning of Saturday, March 20th, last, at the house of one of his tenants, with whom he was then making his home. Upon the evening of the same day Mrs. Elizabeth Givler and Mrs. Anna E. Silvius executed and delivered to H. M. Rupley, Esq., a paper, of which the following is a copy: 'We, Elizabeth Givler and Annie Elizabeth Silvius, of West Fairview, Cumberland county, state of Pennsylvania, being heirs of law of Emanuel Neidig, late of Silver Spring township, county and state aforementioned, deceased, do hereby renounce all our right to letters of administration upon the estate of said deceased, and desire that the

same may be granted to H. M. Rupley, Esq., of West Fairview, Pa. We further suggest that the said Emanuel Neidig died leaving no father or mother, nor brother or sister, to survive him, and that we are the issue of a sister of his father, and to the best of our knowledge and belief the nearest of kin. In witness whereof we have hereunto set our hands this 20th day of March, 1897. Elizabeth Givler. Anna E. Silvius. Silvius. Witness: Benj. Givler. John R. Silvius.' On Monday morning, March 22d, prior to the interment of Mr. Neidig, the above-mentioned paper was filed with the register of wills, and letters of administration were issued to H. M. Rupley, Esq., as therein suggested. At a later hour on Monday Mr. Neidig was buried, and on the following day four of his next of kin, being the children of a deceased half-brother, presented a petition to the register of wills, reciting their relationship to him, and setting forth that the aforesaid letters of administration 'were improvidently granted, and should be revoked, for the reason that the parties who appeared, alleging or representing that they were the next of kin of said decedent, and who renounced their alleged right to letters of administration upon his estate, and suggested that the same be granted to the said H. M. Rupley, Esq., are not the next of kin of said decedent, and therefore not entitled to letters, nor had they the right to renounce and suggest in whose favor the same should be granted; that the right to letters of administration is vested under the law in one or more of your petitioners, or in such person or persons that they may see fit to nominate, in the event of a renunciation of their right to said letters,' etc. The petition concluded by praying that a citation should be issued to H. M. Rupley, Esq., commanding him to appear upon a fixed day and show cause why the letters of administration should not be revoked. The administrator filed an answer to the citation, in which he set forth: 'It is not true that said letters of administration were issued to your respondent improvidently, but lawfully, on the nomination of the next of kin of said Emanuel Neidig, residing in the county of Cumberland. That the parties who nominated your respondent are the next of kin, as he is informed and believes, and entitled to letters, and respondent denies that the petitioners are such next of kin as are entitled under the act of assembly to letters of administration upon the estate of Emanuel Neidig, deceased. Respondent therefore prays that said citation be dismissed at cost of petitioners.'

"Upon the question of fact, as thus made up. evidence was taken which clearly showed that the next of kin of Emanuel Neidig at the time of his death were the children of three half-brothers, previously deceased. After carefully examining the testimony we do not see why the register hesitated in reaching this conclusion, for it was plainly established; so, likewise, it was shown that the relation

ship between Mrs. Givler and Mrs. Silvius and the decedent was not so close,-his father's sister having been their grandmother. Subdivision 5 of section 4 of the act of April 8, 1833, provides that in a case such as the present one the personal estate of the intestate shall be distributed among his brothers and sisters and their issue 'without any distinction of blood.' In regard to the descent of personal property there is no distinction between brothers and sisters of the whole and half blood. In re Miller's Estate, 2 Woodw. Dec. 174. Nor is there a distinction between them as to the grant of letters of administration, for they are all in the nearest degree of consanguinity with the decedent. Single's Appeal, 59 Pa. St. 55. Section 22 of the act of March 15, 1832, directs that the register shall grant letters to the widow, if any, of the decedent, or to such of his relations or kindred as by law may be entitled to the residue of his personal estate, or to a share or shares therein after payment of his debts, except in case of their refusal to act or incompetency. If the parties entitled to letters do not desire to personally settle the estate, they may name a suitable person to do so, and the register must regard their selection. The opinion of Judge Watson in Jones' Appeal, 10 Wkly. Notes. Cas. 249, which was adopted by the supreme court, contains the following apposite language on this subject: 'I feel very confident that no case can be found where it has been held that the register is at liberty to disregard the clearly-expressed wishes of the parties preferred by the law and entitled to the estate, whether they be residents of this commonwealth or beyond its borders, and grant letters to a total stranger, whose only interest is the expectation of earning commissions by his services in the execution of the trust. *

* If the parties who are enti

tled to the estate are not in a position to administer it themselves, then the trust should be committed to their nominee, who has their confidence and whose services are to be paid for from their funds.' As soon as it was shown that Mrs. Givler and Mrs. Silvius, at whose instance the administrator was appointed, had no interest whatever in Emanuel Neidig's estate, the present letters should have been at once canceled, and others issued according to law. Henry C. Ocker and Sarah Ocker, by papers filed with the register on April 5th, became parties to the petition to have the outstanding letters revoked; hence, all of the interested parties who are residents in this county have united in the same prayer. Why should their request not be granted? It is futile to say that none of the petitioners made application for letters. Mr. Rupley was appointed in unseemly haste, without notice to the next of kin, and before the deceased had been buried, upon the strength of a so-called renunciation, signed on the day of his death by two persons, neither of whom had a jot of right to his property or any part of it. Those entitled to the estate,

who live here, began proceedings without delay to have the mistake rectified, and have vigorously pressed the matter to its present stage; the allegations upon which they based their claim to relief having been fully sustained by evidence taken. Upon the day of argument there was filed with the court a paper, signed by the six next of kin resident in the county and two others, renouncing their right to letters, and requesting that they be issued to Jacob S. Meily, of Silver Spring township. This document is herewith transmitted to the register. That Mr. Rupley is well qualified to perform the duties of administrator is immaterial, for his appointment to the position was obtained without the knowledge or consent of any of the distributees, and it is now sought to have him retained in the place against their protest. To permit this to be done would be violative both of the rules of business and of the principles of law. now, June 8, 1897, the appeal is sustained, and it is ordered that the letters of administration in the estate of Emanuel Neidig, deceased, which were granted to H. M. Rupley, Esq., be and the same are hereby vacated; and it is further ordered that letters in said estate be issued by the register of wills to Jacob S. Meily, who is a suitable person and the nominee of the next of kin, upon his entering into bond with sureties as required by law. By agreement of the parties, it is ordered that the costs be paid out of the estate."

And

A. R. Rupley and Wetzel & Hambleton, for appellant. R. M. Henderson, J. Webster Henderson, and Chester C. Bashore, for appellees.

STERRETT, C. J. This appeal is from the decree of the orphans' court vacating "the letters of administration which were issued to H. M. Rupley, Esq., in the estate of Emanuel Neidig, deceased," and ordering "that letters in said estate be issued by the register of wills to Jacob S. Meily, who is a suitable person, and the nominee of the next of kin, upon his entering into bond with sureties as required by law." The facts of the case, together with the questions of law arising thereon, are clearly and concisely stated in the opinion of the learned president of the court below, and need not be recited here. In his argument the appellant says: "There are no disputed facts so far as this appeal is concerned, and therefore the testimony taken before the register of wills is not printed." He also "frankly admits that the petitioners, the Ocker family, are the next of kin, and the letters issued to Mr. Rupley were improvidently granted, and would have been revoked by the register had any of said next of kin been competent and applied for said letters." The reasons thus stated as a justification of the register's refusal to vacate the letters admitted to have been improvidently issued to appellant are frivolous and unsound. The issue before the register involved neither the

competency of the next of kin to administer, nor their demand that letters issue to them, or some of them, or to their nominee. For good and sufficient reasons, set forth in their petition, the prayer thereof was that the letters improvidently granted to the appellant in this case be revoked. In his answer, he denied that the letters were improvidently granted to him, and averred that those by whom he was nominated were the next of kin of the intestate, and that the petitioners were not such next of kin as are entitled to administer, etc. Under the issue thus presented, as soon as it was shown that the persons who nominated appellant were not the next of kin, and that the petitioners were, it was the clear duty of the register to revoke the letters granted to appellant. That would have cleared the way for an application by some of the petitioners or their nominee. The only orderly mode of proceeding was for the register to determine, first, whether the letters to appellant were or were not improvidently granted. It would have been premature for the next of kin to have demanded the issue of letters to themselves or their nominee until the register had first revoked the improvidently granted letters; but, as we understand, the register went outside of the questions involved in the issue before him, and decided that, because the next of kin were incompetent to administer, etc., the letters improvidently granted to appellant should not be revoked. This was simply undertaking to prejudge what was not then properly before him, and perhaps never would have been, if he had rightly decided the questions that were strictly involved in the issue without more; but he undertook to fortify his refusal to vacate the improvidently granted letters by deciding that none of the next of kin were competent to administer, etc. For reasons clearly and concisely set forth in his opinion, the learned judge found the facts as now conceded to be correct, viz. "that the Ocker family are the next of kin, and the letters issued to Mr. Rupley were improvidently granted," etc., and he accordingly vacated said letters. He might have stopped there, and left to the register of wills the granting of letters to one or more of the next of kin: but clearly he was not bound to do so. It was, doubtless, evident to him, as it is to us, that the questions that might again arise before that officer had not only been prejudged, but were erroneously decided, by him. Owing to the manner in which the case appears to have been heard and disposed of by the register, those questions were brought before the court below. It was therefore entirely proper to incorporate in the decree the order that letters be issued by the register to the nominee of the next of kin, etc. The appellant, having been rightly ousted from the office into which he was inducted with at least indecent haste, has no right to interfere with the granting of letters to any of the next of kin or their nom

inee. In view of the clear and satisfactory manner in which the questions involved are disposed of in the opinion of the court below, further elaboration is unnecessary. Decree affirmed, and appeal dismissed, at appellant's costs; and it is ordered that the record be remitted to the court below.

STAGE v. BOYER et al.

(Supreme Court of Pennsylvania. Jan. 3, 1898.)

OIL LEASES-ABANDONMENT-SUFFICIENCY OF EVIDENCE.

Plaintiff, in 1885, acquired an oil and gas lease, which gave him exclusive right to drill for oil for 10 years, and as long thereafter as oil and gas were found in paying quantities; required him to complete a well within a year; gave him the right to abandon the premises at any time, provided that an abandonment should not deprive him of the right to convey oil and gas over the land from other lands on an annual rental. Within a year he completed a well, which was unproductive. In 1887 he notified the lessor of his intention to abandon the well, and drew the casing, and removed all his machinery. After that time he made no search for oil or gas on the premises, but conducted operations in the vicinity, drilling 16 wells at a cost of nearly $50,000. On being requested to surrender the lease five years after he abandoned his search, he refused to do so, and afterwards recorded it. He testified that he had never intended to abandon the lease. Held, that a finding of abandonment was justified by the evidence.

Appeal from court of common pleas, Butler county.

Ejectment by George G. Stage against Samuel P. Boyer and others, commenced in 1895, in which plaintiff claimed under an oil lease made in 1886. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Clarence Walker and Thompson & Son, for appellant. W. D. Brandon and R. W. Cummins, for appellees.

FELL, J. The plaintiff in this ejectment is the assignee of a lease of a farm for the purpose of drilling and operating for oil and gas. The defendants are lessees of the farm for the same purpose under a lease made 71⁄2 years after the lease under which the plaintiff claims. The single question raised is whether the plaintiff has lost his rights under his lease by abandonment. By the terms of the lease the lessee and his assigns are given the exclusive right to drill and operate for oil for the term of 10 years, and for so long thereafter as oil and gas are found in paying quantities. The lessee is bound to commence operations and to complete a well within one year, and his failure to do so, or to pay a fixed sum for the delay, is ground for forfeiture of all his rights under the lease. The lessee is given the privilege of abandoning the premises at any time, but an abandonment does not deprive him of the right to convey oil and gas

over the land from other lands, upon the payment of an annual rental for for the privilege. Within a year the plaintiff completed a well, which, after a thorough test, was found to be unproductive. In 1887 he In 1887 he notified the lessor of his intention to abandon the well, assigning as a reason that it was of no value; and he then drew the casing, plugged the hole, and removed all of his machinery and appliances from the premises. He has not since made any search for oil or gas on this farm, but has conducted operations on others in the vicinity, which were leased at the same time, and had drilled 16 wells at an expenditure of nearly $50,000. Four or five years after the plaintiff abandoned his search, he was asked by the lessor to surrender his lease. This request he refused, saying he intended to keep it. He afterwards procured an assignment of his partner's interest in the lease, and recorded the lease and the assignment. He testified at the trial that he had not abandoned the lease, and that he had never intended to do so. The learned judge, before whom the case was tried without a jury, considering all of the testimony, found as matter of fact "that the plaintiff, considering the well he drilled as a sufficient test, abandoned further operations under this lease, and abandoned it, because he had failed to find either oil or gas." This finding of fact, if justified by the evidence, fully sustains the judgment entered, and it is unnecessary to consider the other findings of fact or law upon which also it is based.

The leases of the different farms in the locality were entirely independent of each other, and there is no foundation in the testimony for the argument that the search on other farms was made with a view to determine whether there was an oil belt extending under the farm in question, and whether the water in the whole section could be exhausted by pumping. The plainThe plaintiff did not so testify, although he was given the fullest opportunity to state what his intentions were at the time. The lease gave him two rights,-one to search for oil and gas, the other to convey oil and gas in pipes from other lands through and over the farm leased. The second right would continue after the abandonment of the first. It was a right for which he was not required to pay until he used it, and which might be of great value to him while operating in the locality. The lease was the written evidence of his right, and an explanation of his refusal to surrender the lease five years after he had given up the search for oil and gas is found in his desire to preserve this right. He had reserved the privilege of abandoning the lease at any time. After a thorough test, he gave up the search, abandoned the premises, and never again resumed operation. With these facts clearly established, and unexplained by his testimony

or by any course of action which indicated an intention to return and explore for oil or gas, the learned judge was justified in finding that he had exercised his reserved privilege, and abandoned the lease; and on this finding the judgment is affirmed.

In re ALLISON'S ESTATE.

Appeal of FIRST NAT. BANK OF INDIANA COUNTY.

(Supreme Court of Pennsylvania.

ASSIGNMENT

1898.)

Jan. 3,

FOR CREDITORS-SALE-FRAUDACCOUNTING BY ASSIGNEE.

Where, at assignee's sale, the assignee has the property bid off in the name of H. without his knowledge or consent; and when H. is informed thereof it is agreed that he shall take the property only in case a better purchaser cannot be procured; and thereafter the assignee has H. convey the property to Z., neither H. nor Z. making any payment; and thereafter it is sold to B., at a large advance, through a realestate agent, the assignee dealing with B., and conveying to him the idea that it was his property, the assignee should, failing to show what was done with the purchase money paid by B., or that he acted in good faith in the entire transaction, be charged with the full amount paid by B., less the commissions of the real-estate agent.

Appeal from court of common pleas, Indiana county.

Accounting by W. C. Brown, assignee for the benefit of creditors of T. B. Allison. From a judgment dismissing exceptions to the confirmation of the account, the First National Bank of Indiana County, Pa., a creditor, appeals. Reversed.

John P. Blair, for appellant. J. N. Banks, for appellee.

STERRETT, C. J. In January, 1886, T. B. Allison executed a deed of voluntary assignment, for the benefit of creditors, to the appellee, William C. Brown, who thereupon accepted the trust, and entered upon the discharge of the duties thereof. Shortly afterwards, the court, on his petition, ordered a sale of certain assigned real estate, including a tract of 114 acres, known as the "Schlemmer Farm." After considerable delay, the assignee, in his return to a pluries order, reported the Schlemmer farm sold, August 30, 1887, to John Hill, for $929, and thereupon the sale was confirmed. While the assignee's deed for this land is dated October 13, 1887, it was not acknowledged until July 1, 1890. Two days later, for the alleged consideration of $1,200, Hill and wife conveyed the same to George D. Zeigler, who, with his wife, on July 1, 1893, executed a deed for the same to P. C. Muth and Jacob Buhite for the consideration of $3,225, as expressed in the deed. After being cited to do so, the assignee, on July 17, 1890, filed an account, in which he charged himself with $929 as the amount realized from the sale of the Schlemmer farm. To this the appel