monious, yet the great weight thereof is clearly against the existence of any such jurisdiction. The ground upon which most of the decisions rest is that, in order to confer jurisdiction upon a court to grant letters of administration upon a person's estate, that person must be in fact dead; and that, if he is not dead, there is no estate to administer upon, and hence no jurisdiction. Mr. Freeman, in discussing this question in his work on Judgments, says: "The question occasionally arises whether the grant of letters testamentary or of administration on the estate of a person in fact living, but supposed to be dead, is an act beyond the jurisdiction of the court, and therefore so so utterly void that no person is protected in dealing with the executor or administrator while his letters remain unrevoked. The weight of authority is very decidedly to the effect that the decease of the supposed decedent is a prerequisite to the jurisdiction of the court, and that he is wholly unaffected by the proceedings for the settlement of his estate." In line with the doctrine here announced, it is said in Melia v. Simmons, 45 Wis. 334: "The proceedings of administration, settlement, and assignment of the estate of the respondent, represented to have been dead, when he was and still is alive, are absolutely null and void, for all purposes whatsoever. ** * The county court of Dodge county, or any other court, has no jurisdiction in this particular case, or in such a class of cases. There is no class of cases which embraces the administration of the estates of living persons as if they were dead. The proceedings are void ab initio and throughout. If this case falls within any class of cases, it is a class in which no court has any right to deliberate or render any judgment, and in which every conceivable act is an absolute nullity. The only jurisdiction the county court has in respect to the administration of estates is over the estates of dead persons. It would seem that the bare statement of such a proposition is enough, without citing authorities." In Thomas v. People, 107 Ill. 521, the supreme court of Illinois, in an able opinion by Mr. Justice Mulkey, takes the same view. The same doctrine has been either adjudged or recognized in Massachusetts in Jochumsen v. Bank, 3 Allen, 87; Waters v. Stickney, 12 Allen, 1, 13; Day v. Floyd, 130 Mass. 488; in Pennsylvania, in a series of cases beginning in 1824 (see Devlin v. Com., 101 Pa. St. 273); in Texas, in Withers v. Patterson, 27 Tex. 499; in Kentucky, in French v. Frazier, 7 J. J. Marsh, 425; in Tennessee, in D'Arusment v. Jones, 4 Lea, 251; in New Hampshire, in Morgan v. Dodge, 44 N. H. 255; in North Carolina, in State v. White, 7 Ired. 116; in Alabama, in Duncan v. Stewart, 25 Ala. 408; in California, in Stevenson v. Superior Court, 62 Cal. 60; in Missouri, in Johnson v. Beazley, 65 Mo. 264; and in many other states. See, also, 1 Woerner,

Adm'n, § 208 et seq., where the same view is taken, and our statute commented on; and note to Bolton v. Schriever (N. Y. App.) 18 Lawy. Rep. Ann. 242 (s. c. 31 N. E. 1001). To this array of authorities there are to be added the decisions of the supreme court of the United States in Griffith v. Frazier, 8 Cranch, 9, and the recent case of Scott v. McNeal, supra, in which last-named case Gray, J., in an exhaustive and learned opinion, after discussing the entire subject, and reviewing all the cases, comes to the conclusion that administration cannot legally be granted on the estate of a living person, and that to deprive one of his property in a proceeding of this sort is unconstitutional. The reasoning in that case is so cogent, and the result so authoritative, especially as to the constitutional question involved in the case at bar, that further citations would seem to be unnecessary.

Opposed to all this there is practically, so far as we are aware, but the single case of Roderigas v. Institution, 63 N. Y. 460, where the court, by a bare majority, held that, under the provisions of the statutes of that state conferring upon surrogates jurisdiction over the subject of granting letters of administration, the inquiry of the surrogate as to the death of the person upon whose estate administration is applied for is judicial in its nature, and that the surrogate has jurisdiction to determine it upon sufficient evidence; and also that letters issued by him upon due proofs are conclusive evidence of the authority of the administrator to act until the order granting them is reversed on appeal, or the letters are revoked or vacated, so far, at least, as to protect innocent persons acting upon the faith thereof. The decision in that case has been much criticized (see articles in 21 Alb. Law J. pp. 65, 84; D'Arusment v. Jones, supra; 15 Am. Law Reg. 212; 1 Woerner, Adm'n, § 210), and, so far as we are aware, has never been followed outside of said state except in the case of Scott v. McNeal, in Washington Territory, which, as we have already seen, has since been expressly overruled by the supreme court of the United States, although it was cited with approval in Plume v. Institution, 46 N. J. Law, 230. In that case, however, it was not even surmised that the alleged decedent was not in fact dead. We are not

unmindful of the rule that has been laid down in this state and elsewhere that the court should ponder well before declaring an act of the general assembly to be unconstitutional, and that it should resolve every doubt in favor of the validity of the act. State v. District of Narragansett, 16 R. I. 440, 16 Atl.. 901. But if, having observed this rule, the court comes to the conclusion that the act is violative of some constitutional right, its plain and imperative duty is to declare it to be void. Taylor v. Place, 4 R. I. 364. The case was originally heard by the appellate division, which then consisted of three jus

tices. Owing to the importance of the question, however, and in view of the fact before referred to that said statute has long been upon the statute book, it was thought proper to have the case resubmitted on briefs to the entire court, which has been done. And, after a full and careful consideration, we are all of the opinion that, in so far as said statute authorizes the estate of a living person to be administered upon, it is unconstitutional and void. We do not wish to be understood, in what we have said in this case, as expressing any opinion upon the validity of the statute which authorizes administration upon the estates of persons under imprisonment for crime. Demurrer sustained, and case remitted to the common pleas division for further proceedings.

In re WEAVER'S ESTATE.
Appeal of PAUL.

(Supreme Court of Pennsylvania. July 15, 1897.) CLAIMS AGAINST DECEDENT'S ESTATE.

Evidence to establish a claim for services against a decedent's estate not made during his lifetime must be other than mere loose declarations, and must clearly and distinctly establish a contract between claimant and decedent.

Appeal from orphans' court, Dauphin county. In the matter of the estate of Rachael Weaver, deceased. From a decree confirming the report of the auditor disallowing the claim of Aaron Paul, he appeals. Affirmed.

The opinion of the court below and the report of the auditor are as follows:

Opinion of the Court.

"The questions raised by these exceptions are practically questions of fact, and, on an examination of the evidence reported by the auditor, we see no reason for changing or modifying his conclusions, nor do we think that the matter requires any extended discussion on our part. As is shown by the cases quoted by the auditor, claims for services against a decedent's estate not made during the lifetime of the decedent are looked upon by the courts with a great deal of suspicion, and in order to establish such a claim the evidence must be other than that of mere loose declarations, and must be such as to clearly and distinctly establish a contract, either express or implied, between the claimant and the decedent. We do not think the evidence in this case comes up to this standard, and the report of the auditor is therefore confirmed, and distribution ordered to be made in accordance therewith."

Report of Auditor.

"Aaron Paul claimed the sum of $1,100 for boarding Rachael Weaver, attending to her business affairs, nursing her during sickness, and calling for doctor whenever required by her, during eleven years; also, for substantial improvements on real estate of Rachael

Weaver, consisting of fencing, etc., amounting to $174; funeral expenses, etc., $100; doctor's bill, $5; and taxes, $7.36. Rachael Weaver died February 20, 1894, intestate. Your auditor finds as a fact that for eleven years prior to death of decedent she lived with Aaron Paul, her nephew, and during that time performed the work ordinarily done around a farm by the women of the household. Your auditor finds as a fact that Aaron Paul made certain improvements upon the real estate of Rachael Weaver, which he was at that time farming, but further finds that said improvements were made in the expectation that at the death of said Rachael Weaver this real estate would be devised and bequeathed to him. Your auditor finds as a fact that Aaron Paul paid a portion of the expense incidental to the funeral dinner, but, from the evidence produced, finds that the amount claimed, to wit, $100, is exorbitant and excessive (in fact, one witness testified that the expense could not have been more than $10); and your auditor finds that the claimant would be fully paid with one-half of that amount, and allows the sum of $50. Receipts were offered in evidence showing that Aaron Paul had paid a doctor's bill of $5 for Rachael Weaver, and taxes amounting to $7.36, and these two claims are allowed. The decisions of the Pennsylvania courts are all against the claim presented by Paul for boarding Rachael Weaver, and the claim for substantial improvements, etc., made to the real estate of decedent. 'A claim against a decedent's estate should be supported by stronger evidence than admissions to third persons." Keyser's Appeal (Pa. Sup.) 16 Atl. 577. 'such claims should be closely scrutinized.' Peters' Appeal, 106 Pa. St. 340. The evidence clearly shows that Rachael Weaver first went to the house of Aaron Paul's father as housekeeper, and the presumption is that she continued to act in that capacity up until her last illness; in fact, up until she became bedfast, two or three weeks prior to her death. Paul undoubtedly expected that he would be the legatee of a large portion, if not all, of the estate of the decedent, and, in making these claims, endeavors to realize his expectations. In Koecker's Estate, 47 Leg. Int. 505, the court held that: 'Claims for services against a decedent's estate not presented as a legal demand until after the death of the alleged debtor will have every intendment and presumption made against them.' 'Claims against a dead man's estate which might have been made against himself while living are always subject to just suspicion.' Mueller's Estate, 159 Pa. St. 590, 28 Atl. 491; Carpenter v. Hays, 153 Pa. St. 432, 25 Atl. 1127. And in Miller's Estate, 136 Pa. St. 239, 20 Atl. 796, it was held that: 'When one has rendered personal services to another merely upon the expectation of a legacy promised, without a contract obligation, the promisee takes his chances of receiving the legacy; and, if his expectations are disappointed, he can recover nothing.' In

And

accordance with the above decisions, and from the testimony produced, your auditor refuses to allow these claims for boarding and improvements, respectively."

John E. Fox and John G. Gilbert, for appellant. Meade D. Detweiler and James I. Chamberlin, for appellees.

PER CURIAM. We quite agree with what was said by the learned president of the orphans' court in overruling appellant's exceptions and confirming the auditor's report. We find nothing in the record that would justify a reversal or modification of the decree, nor is there anything in either of the questions presented by the specifications of error that requires discussion. For reasons given in the opinion of the court below the decree is affirmed and appeal dismissed at appellant's costs.

COMMONWEALTH ex rel. BOROUGH OF

MECHANICSBURG v. COOVER et al. (Supreme Court of Pennsylvania. July 15, 1897.) TAX COLLECTOR'S BOND-LIABILITY OF SURETIES.

Sureties on bord for a certain year of the collector of taxes for a borough, conditioned that he "pay over ** according to law the whole amount of taxes charged and assessed in the duplicates * ** delivered to him," are liable for money collected on the duplicate of that year, and paid the treasurer in settlement of the duplicate of the preceding year; the treasurer or borough not having had knowledge of such misappropriation.

Appeal from court of common pleas, Cumberland county; E. W. Biddle, Judge.

Action by the commonwealth of Pennsylvania, on the relation of the borough of Mechanicsburg, against W. H. Coover and others. Judgment for plaintiff, and defendants (except J. L. Knettle) appeal. Affirmed.

The following are the opinion and decree of the court below upon the reserved question: "Gwynne v. Burnell, decided by the house of lords, and reported in 7 Clark & F. 572, is a leading case upon the legal question which is embodied in the special verdict. The ruling there was, in substance, that the condition of a tax collector's bond for a certain year was broken, and the surety became liable, whenever any money received from the taxes of that year was applied in payment of the arrears of a former year. This decision is of the highest authority, for it was adopted only after grave and protracted deliberation, and it represented the opinion of many judges. To the same effect is Inhabitants of Colerain v. Bell, 9 Metc. (Mass.) 499, in which it is held that where the same person is collector of taxes for two consecutive years, and pays to the town the arrears of taxes due by him on the tax list of the first year, with the moneys collected on the second year's list,-the town officials not knowing whence the money came,

-the sureties on the second bond, when sued for his default, are not entitled to set off or deduct the amount so paid by him upon the tax list of the previous year. So in Frownfelter v. State, 66 Md. 80, 5 Atl. 410, there is a similar determination, the court saying: 'If the commissioners or the treasurer knew that the money applied to the taxes due for previous years had been collected on the levy of 1881, certainly they would have had no right to permit such application. But, in the absence of any knowledge of the sources from which it was obtained, it is difficult to see how they could have prevented Myers from applying it to his indebtedness for any year which he might name. When the money was in his possession, there was nothing to identify it, or to distinguish it from other funds under his control or rightfully belonging to him. The obligation assumed by his sureties was that he should pay the money in discharge of the tax levied within the time required by law. If he paid it in discharge of previous taxes, it was as much a breach of his bond as if he had retained it in his own pocket. We think the law on this point is correctly stated in Inhabitants of Colerain v. Bell, 9 Metc. (Mass.) 499, and in Gwynne v. Burnell, 7 Clark & F. 572.' The exact point is also ruled in State v. Sooy, 39 N. J. Law, 539, where the cases on the subject are reviewed in an elaborate opinion by Depue, J.; and the doctrine is also recognized and affirmed in Stone v. Seymour, 15 Wend. 19, and in State v. Smith, 26 Mo. 226. These decisions are, in our opinion, absolutely conclusive upon the question at issue, and we find nothing in Com. v. Stambaugh, 164 Pa. St. 437, 30 Atl. 293, to shake their authority in this state. On the contrary, an inspection of that case shows that its determination does not conflict in any respect with the established principle upon which the above-cited cases rest. And now, October 26, 1896, the reserved question of law is resolved in favor of the plaintiff, and it is ordered that judgment be entered on the verdict upon payment of the jury fee."

J. N. Young, H. H. Mercer, H. S. Stuart, and F. E. Beltzhoover, for appellants. J. L. Shelley, J. W. Wetzel, and W. F. Sadler, for appellee.

McCOLLUM, J. This is an action on a collector's bond, in which the principal and his sureties are defendants. The appeal from the judgment of the trial court is by the sureties. The principal acquiesces in the judgment, presumably because, as collector, he is indebted to the borough in the amount thereof. He was duly elected collector of taxes in and for said borough in February, 1893, and in February, 1894, and he gave in each year the bond required by law. The bond of 1894 is the bond in suit, and four of the sureties on it were sureties on the bond of 1893. The sureties on the bond in suit concede their lia

bility for $958.83 of the duplicate of 1894, but deny that they are liable for $2,888.63 of it, which their principal paid to the borough treasurer in settlement of the balance due on the duplicate of 1893. There is no direct evidence of notice to the treasurer that the sum thus paid to him was collected on the duplicate of 1894, nor anything on the record which shows that the sureties claimed on the trial that the jury might infer such notice from the circumstances in the case. There is no presumption that the payment in settlement of the duplicate of 1893 was a misappropriation of money collected on the duplicate of 1894. The misappropriation was not discovered until the settlement of the latter was called for. Besides, there is nothing in the statutes relating to the assessment and collection of taxes which makes it the duty of the treasurer to ascertain how or from what source the money paid to him by the collector was obtained. The duties of the latter are defined by his bond, which requires that he "shall well and truly collect and pay over or account for according to law the whole amount of taxes charged and assessed in the duplicates which shall be delivered to him." While he is elected for a term of three years, he must "give a bond annually, to be approved by the court." The bond of each year is applicable to and security for the taxes of that year. It does not extend to or include the taxes of a preceding or subsequent year. If, therefore, a collector applies the money received on the duplicate of one year in satisfaction of a balance due from him on the duplicate of another year, he has not paid over according to law the money so applied. It follows that the application of the money collected on the duplicate of 1894 to the payment of the balance due on the duplicate of 1893 was a clear misappropriation of the money so collected. It was the act of the collector, and a breach of the bond in suit. It cannot operate as a release of the sureties from liability for the money so appropriated. If the application had been made with the knowledge of the borough that it was a misappropriation of money collected on the duplicate of 1894, there would be substantial ground, we think, for acquitting the sureties of liability on the bond, to the amount of the misappropriation. But it has not been shown that the treasurer or borough had such knowledge, and there are no circumstances in the case which authorize an inference of it. No act or omission of the borough affecting the transaction complained of, or affording support to the sureties' contention, was shown. The defense therefore rests exclusively on their principal's breach of the bond, and this certainly is no impairment of their liability upon it. We think the cases cited by the sureties are not applicable to the facts of the case in hand, and that the latter is clearly within the principle established by the cases referred to in the opinion of the learned court below. Judgment affirmed.

COMMONWEALTH. WEST END COAL

CO.

(Supreme Court of Pennsylvania. May 31, 1897.) COAL COMPANY-TAXATION.

Appraisement for taxation of the shares of a corporation engaged in coal mining at five-sixths of their par value, where the net earning for the year had been over 16 per cent., will not be disturbed merely because its lease of coal lands would soon expire, and of a suggestion, unsupported by proof, of the uncertainty of renewal.

Appeal from court of common pleas, Dauphin county.

From a settlement made by the auditor general and state treasurer for tax on capital stock of the West End Coal Company for the year 1895 it appealed to the court of common pleas, where judgment was rendered for the commonwealth, and the company again appeals. Affirmed.

FELL, J. There were no sales of the stock of the appellant company during the tax year 1895. Its treasurer appraised its shares at $25 each, and its total capital stock at $75,000. The facts upon which the auditor general and state treasurer base their appraisement of $250,000 are these: The company has a paid-up capital of $300,000; and a surplus of $17,480. During the tax year its gross earnings were $344,537.88, and its net earnings $50,475.97, and after the payment of dividends it added to its sinking fund $25,150. The only ground upon which it is possible to base an objection to the approval by the court of this appraisement is that the company owned no land, and that the leaseof certain anthracite coal lands upon which. it had been engaged in mining coal would expire June 30, 1897; and, according to the statement of the treasurer, it was uncertain whether the lease could be renewed or a new one made upon terms which would warrant the company in continuing its operations. This fact should, of course, be taken into consideration in appraising the capital stock, and it was considered, and full allowance for the uncertainty made. The company, for the year, earned over 16 per cent., and its shares were assessed at only fivesixths of their par value. It is true that in such a case as this an appraisement should not be based upon the earnings for any one year, and that there can be no fixed and certain standard. Large earnings in coal mining, as was said by the present chief justice in Com. v. Edgerton Coal Co., 164 Pa. St. 284, 30 Atl. 125, 129, may indicate large exhaustion of the coal, and consequent impairment of the capital; and, "to arrive at the actual value, possibilities and probabilities as well as things certain are properly considered." A failure to secure a renewal of the lease

In a writ of entry to foreclose a mortgage alleged to have been satisfied by the mortgagee under a material mistake of fact, the question whether the mortgagee is entitled to have his discharge canceled and his mortgage re-established and foreclosed is one that must be determined upon a full consideration of all the evidence, and it is doubtful whether such question can be tried at all in such action at law.

Writ of entry by Amos H. Stebbins against C. C. Robbins and another to foreclose a mortgage. Case discharged.

Writ of entry on a mortgage. Trial by the court. The mortgage was made April 8, 1867, by one Forbush to the plaintiff, upon a lot of land on Union street, in Peterboro Center village, to secure a note of $600. Forbush conveyed to one Day, by warranty deed dated April 1, 1872, and recorded the next day, a strip of land 42 feet in width across the westerly end of the mortgaged premises from Union street to the river, "together with a right of way twenty feet wide running from said street to said river east of the east line of the abovedescribed tract." Forbush occupied the rest of the mortgaged premises as his homestead until his death, in 1880. April 15, 1880, administration was granted on Forbush's estate, and the administrator subsequently sold by auction the interest of Forbush in the homestead, subject to the mortgage, upon which there was then due $853.33. The plaintiff was the purchaser, bidding and paying $50 for the interest of the Forbush estate in the premises subject to his mortgage. November 16, 1880, the administrator gave the plaintiff a deed of the homestead for the consideration of $50, subject to the mortgage and to the widow's dower and homestead, "reserving a right of way twenty feet wide on the west side of said land as now used in connection with said Day's house and land." The widow released her right of dower and homestead, and the plaintiff executed the following discharge on the back of the mortgage, and it was recorded November 30, 1880, with the record of the mortgage: "I hereby discharge the withinwritten mortgage, for and in consideration of a deed of the within-described premises from D. M. White, administrator of the estate of Ira Forbush, and a quitclaim deed from Hannah Forbush, widow of the said Ira Forbush, re

November 16, 1880, at public auction, subject to this mortgage and note. Peterboro, N. H., November 17, 1880. Amos H. Stebbins. Witness: D. M. White." At the time of the purchase of the equity of redemption and the discharge of his mortgage, the plaintiff had no knowledge of the grant of the right of way in the deed from Forbush to Day, and no knowledge of any claim of a right of way extending from the street to the river. At the auction the bounds between the Day lot and the homestead were pointed out, and the plaintiff knew there was a way used in connection with the Day buildings, extending from the street to the rear of the buildings about 100 feet, but no mention was made of a right of way extending to the river. Shortly after the purchase of the equity at the administrator's sale, the plaintiff sold and conveyed the Forbush homestead. His first knowledge of the claim of a right of way to the river was in 1889, when his grantee complained to him of an incumbrance on the land. The plaintiff's evidence tended to show that a right of way to the river would diminish the value of the homestead lot $300. If the plaintiff had known that a right of way from the street to the river was granted by the deed from Forbush to Day, he would not have discharged his mortgage. This suit is brought to enforce the mortgage upon the Day lot (conveyed by Day to the defendant Robbins in 1881), upon the ground that the mortgage debt has not been paid or the mortgage discharged, the discharge having been made under a mistake of fact.

J. F. Briggs, for plaintiff. F. G. Clarke, for defendants.

ALLEN, J. In many cases the law regards a mortgage as assigned, even if it is formally discharged; and in many cases it is discharged, in law, notwithstanding a formal assignment. Fletcher v. Chamberlin, 61 N. H. 438, 468, and cases cited. Here was a formal discharge, and no claim of an assignment. In a writ of entry to foreclose a mortgage formally and intentionally discharged, the plaintiff contends that he is not barred by the discharge, because he executed it under a material mistake of fact. Whether equity requires that he should be relieved, and his discharge canceled or treated as invalid, is a question that should be tried upon a full consideration of all the evidence bearing upon it. There has been no such trial, and it is doubtful whether the question can be tried in this suit at law. If counsel think a bill in equity necessary, it can be filed as an amendment of the declaration, all parties interested being made parties. All material facts not being found (2 Jones, Mortg. §§ 870, 873, 966, 969), the case is discharged. Case discharged.

CLARK, J., did not sit; the others concur

red.