The property of the company was subject to two mortgages, the first to the Real Estate Trust Company of Philadelphia, trustee, to secure the company's $1,000,000 bond issue of March 20, 1910, and the second executed on January 25, 1909, to the Security Trust Company of Camden, N. J. to secure its second bond issue of $500,000 of January 25, 1909, and conveying the same property conveyed in the first mortgage, and subject to the lien of the first mortgage.

On December 13, 1913, C. Herbert Simon obtained a judgment against the company for the sum of $9,625.82, and on the same day issued an execution directed to the sheriff of Philadelphia county, to levy on the stock, fixtures, and household furniture of the hotel and apartment house, and on December 15. 1913, Joseph R. Wainright secured a judgment against the company for $15,220, and caused execution to be issued, which was levied upon the same property. It was contended by the execution creditors that the mortgage did not cover the personal property and fixtures of the company.

On January 14, 1914, on application of a stockholder of the company, the court appointed receivers, who were operating the apartment house and hotel. Subsequently, on February 17, 1914, the court directed the trustee to institute foreclosure proceedings on the first mortgage. The trustee filed the foreclosure bill on March 10, 1914, and averred, inter alia, that the execution judgment creditors above mentioned claimed that the furniture and fixtures in said hotel property were not covered by the mortgages, and prayed that an injunction be granted restraining such creditors from proceeding further with their execution. The court entered the following decree:

And now, to wit, May 11, 1914, upon consideration of the bills for restraining orders filed in the above-entitled causes by the Real Estate Trust Company of Philadelphia, trustee, etc., praying inter alia that C. Herbert Simon and the sheriff of Philadelphia county should be restrained as to the execution levied upon certain personal property of the Majestic Apartment House Company, in the cause entitled "C. Herbert Simon v. Majestic Apartment House Co., C. P. No. 2, September term, 1913, No. 3536," and after due hearing in open court by this court in conjunction with the president judge of the court of common pleas No. 2, and at the conclusion of such hearing, by consent of counsel, the said cause, entitled in the court of common pleas No. 2, as above, was transferred to this court to the cause of the first of the above-entitled numbers, it is ordered that C. Herbert Simon and A. Lincoln Acker, high sheriff of Philadelphia county, be, and they hereby

cution under the writ of fieri facias issued unbert Simon v. Majestic Apartment House Co., der the judgment in the cause entitled "C. HerC. P. No. 2, September term, 1913, No. 3536," which was levied upon the stock, fixtures, and household furniture and contents of the Majestic Apartment House Company, and more particularly from proceeding further with the sale of such property advertised to take place upon May 13, 1914; and that such writ shall be retained the final disposition of the fund realized by the in the hands of such sheriff as unreturned until sale of said property so levied upon at the hands of the Real Estate Trust Company of Philadelphia, trustee, etc., under its above-entitled lien upon said property so levied upon as the foreclosure bill, as set forth in said bill, such said C. Herbert Simon acquired by virtue of said levy to be maintained and relegated and attached to the fund to be produced by the trustee's sale aforesaid, the decision of all questions of rights in said fund priority, and order of lien and awards thereunder, to be decided at the time of the distribution of such fund, the proto be earmarked in the hands of such trustee, ceeds of the property levied upon under said writ and to be distributed as a separate fund, representing in all respects, as to rights of participation therein, the property itself, as though the liens thereon had not been discharged by the sale.

This order to be conditioned upon the Fidelity Title & Trust Company of Pittsburgh, the holdHouse Company, secured by the mortgage to the er of all the bonds of the Majestic Apartment Real Estate Trust Company of Philadelphia, trustee, stipulating and agreeing of record in this cause that it will bid, or cause to be bid, at decree of foreclosure, of such property so levied the sale by such trustee as aforesaid, under the upon, a sum of at least $30,000, and upon entering the usual injunction bond in the sum of $12,000.

Argued before FELL, C. J., and BROWN, POTTER, ELKIN, and MOSCHZISKER, JJ. Walter Biddle Saul, of Philadelphia, for appellant. Joseph de F. Junkin, of Philadelphia, for appellee Real Estate Trust Co.

PER CURIAM. The decree appealed from was made in the exercise of the chancery powers of the court. It does not deprive the appellant of his right to have his execution satisfied out of the proceeds of the sale of the personal property of the Majestic Apartment House Company, if he has such right. The bond given by the Fidelity Title & Trust Company insures the payment for said property of a sum largely in excess of what will be required to pay the appellant, if he has the preference which he claims. Whether he has such preference can be determined by the court after due consideration upon final hearing or on distribution of the proceeds of sale made by the receiver.

We have not been persuaded that we should depart from the rule as to noninterference with preliminary injunctions, and the appeal is dismissed without prejudice to any rights of the appellant; the cost to be disposed of on final hearing.

(245 Pa. 567)

MCLENNAN v. PUBLIC UTILITIES
CONST. CO.

(Supreme Court of Pennsylvania. May 22, 1914.)

GARNISHMENT (§ 87*)-FOREIGN ATTACHMENT, SUFFICIENCY OF AFFIDAVIT.

averment in each, as to the cause of action, was to the truth of the facts set forth "to the best of deponent's knowledge and belief." The order appealed from is affirmed.

(245 Pa. 569)

In re HERSPERGER'S ESTATE. (Supreme Court of Pennsylvania. May 22, 1914.)

[Ed. Note. For other cases, see Garnishment, Cent.Dig. §§ 156-159, 163–166; Dec.Dig. § 87.*]

Appeal from Court of Common Pleas, Erie County.

Rule by D. McLennan against the Public Utilities Construction Company, a corporation, to show cause why a foreign attachment should not be dissolved. From a judg ment making the rule absolute, plaintiff appeals. Affirmed.

The affidavit to the cause of action concluded, "All of which facts are true to the best of deponent's knowledge and belief." The plaintiff filed an amended statement of

demand and an affidavit thereto which had

the same conclusion as the affidavit to the original statement. The court made absolute the rule to dissolve the attachment. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, and ELKIN, JJ. Clark Olds, of Erie, for appellant. Frank Gunnison, of Erie, for appellee.

PER CURIAM. The rule to show cause why the foreign attachment issued in this case should not be dissolved was made absolute for the reason that the affidavits to the cause of action were not positive. As early as 1789 it was decided in Miltenberger v. Lloyd, 2 Dall. 79, 1 L. Ed. 297, that foreign attachments would be dissolved, if under the same circumstances, in the case of a In capias, common bail would be ordered. Jacoby v. Gogell, 5 Serg. & R. 450, it was held that it was not sufficient for a plaintiff in a foreign attachment to swear to facts from which a jury might or might not infer a contract, and that the oath must be positive as to the making of the contract or to facts from which a contract would be necessarily implied. In Hallowell v. Tenney Canning Co., 16 Pa. Super. Ct. 60, it was said by Rice, P. J., that:

"Upon a rule to show cause of action, a positive affidavit must be filed, such as would, if false, subject the affiant to indictment for perjury; therefore the plaintiffs' unsworn statement of claim will not be looked to by the court to supply fatal omissions from the affidavit."

Whether a supplemental affidavit should be considered by the court, on the hearing of a rule to show cause of action, it is unnecessary to consider, since the one offered was no more positive than the original. The

TESTAMENTARY

OF EVIDENCE.

CAPACITY SUFFICIENCY

Evidence, on an issue of devisavit vel non, held to show that testator possessed testamentary capacity at the time of the execution of the will.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 137-158, 161; Dec. Dig. § 55.*] 2. WILLS (§ 111*)-EXECUTION-SUFFICIENCY. weakness and being confined to his bed and not Where testator, on account of physical having a pen with which he was familiar, was unable to write his name legibly, and at his attorney's suggestion made his mark, after which the will was witnessed by the attorney and two other witnesses, the execution was sufficient.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 267-275; Dec. Dig. § 111.*1

Appeal from Orphans' Court, Erie County. In the matter of the estate of Amand Hersperger, deceased. From a decree refusing issue devisavit vel non, and dismissing an appeal from probate of will, Joseph Hersperger appeals. Affirmed.

Walling, P. J., filed the following opinion in the orphans' court:

The will of Amand Hersperger was regularly proved and admitted to probate by the register of Erie county, and from that decree one of the sons of the said Hersperger has brought appeal to this court and asked for an issue. The principal question raised is as to the testamentary capacity of Amand Hersperger at the time of the execution of the alleged will. [1] We have carefully read and considered all the testimony offered upon that question, and we are clearly satisfied that he was competent to make the will in question. There is a presumption of competency, which is supported by the clear and satisfactory evidence of the attorney who prepared the will, and who was well acquainted with Mr. Hersperger, had long been his legal adviser, and conversed with him freeclear and satisfactory account of the transacly and fully in his own language. From the tion given by the attorney, who had exceptional opportunities for knowing the mental condition and ability of the testator, we are fully satishas had large experience in the preparation of fied of his testamentary capacity. Mr. Curtze wills, and is of such high standing at our bar that we necessarily give to his testimony much weight. His testimony is also corroborated by that of Father Bender, the spiritual adviser of Mr. Hersperger, and who saw and conversed with him, as we recall the testimony, twice each day during his sickness, and also by the testimony of the attending physician, Dr. Weibel, who saw and conversed with Mr. Hersperger twice a day during such sickness. These three witnesses are entirely disinterested. They daughters, who attended upon him during his are corroborated, however, by the testator's two last sickness, but who are of course interested in the result of this case.

certain real estate, title to which testatrix held by descent from her father and from certain of her brothers and sisters in such manner that it retained its character as ancestral property, which, in case of intestacy, would have descended to the heirs who were of the blood of testatrix's father. The auditing judge held that the will worked a conversion into personalty of the entire real estate and awarded the fund to the 24 first cousins in equal shares. The nine first cousins ex parte paterna, of whom the appellant, David D. Johnson, was one, filed exceptions to the adjudication, claiming the whole fund as real estate. The court dismissed the exceptions.

Argued before BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

W. J. Sturgis, Charles A. Tuit, and Lee Smith, all of Uniontown, for appellant. D. M. Hertzog, of Uniontown, for appellees.

PER CURIAM. The clearly expressed in

tention of the testatrix is that her entire es

tate is to be distributed as personalty. After authorizing her executor to sell any real

estate of which she may die seised, her explicit direction is that the proceeds of the sale of the same shall be distributed as personalty "to those legally entitled thereto according to the intestate laws of the state of Pennsylvania." The learned court below correctly held that "all of the essentials of an equitable conversion are set forth in this

will."

Decree affirmed, at appellant's costs.

(245 Pa. 583)

BUDNAR v. MINERAL R. & MINING CO. (Supreme Court of Pennsylvania. May 22, 1914.)

MASTER AND SERVANT (§ 239*)-DEATH OF SERVANT-CONTRIBUTORY NEGLIGENCE. Where a coal mine employé was killed from walking beneath a descending elevator when it was but three or four feet above him, at a place which was well lighted and with which he was familiar, he was guilty of contributory negligence, barring recovery for his death.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 749, 750; Dec. Dig. 8 239.*]

W. H. Unger and A. L. Snyder, both of Shamokin, for appellant. W. H. M. Oram, of Shamokin, for appellee.

BROWN, J. Appellant's husband was a miner in the employ of the appellee, which owned and operated a coal mine in Northumberland county, this state. The defendant company had two cages at the mine for letting down and bringing up men working in it, for hoisting coal, and for lowering empty cars. These cages were so operated that, when one of them ascended to the mouth of the mine, the other descended to the bottom of the shaft. In going into the mine on the morning of July 12, 1912, the appellant's husband descended in the south cage, coming out of it on the east side. A little while after

wards he lighted his lamp and started apparently for his work, when he was crushed to death by the descent of the north cage upon him. In this action, brought by his widow, the court below directed a nonsuit, on the ground of the contributory negligence of her husband, and, from the refusal to take it off, she has appealed.

Any presumption that the deceased had been exercising due care when the cage descended upon him was so clearly overcome by the testimony of three coemployés that the trial judge was constrained to hold there could be no recovery. These three witnesses were with the deceased at the bottom of the shaft at the time he was killed. It was well lighted, one of the witnesses testifying "there was enough lights there to see plainly all around"; and the deceased was thoroughly familiar with the situation and all its surroundings, having worked there every day for the six preceding weeks. While two of the witnesses did not see the cage descending upon him, and were therefore not able to tell just how the accident happened, the third, who saw it, clearly and unmistakably describes just how the unfortunate death occurred. His testimony was that the deceased, after lighting his lamp, went directly towards the cage and walked right into the sump, a slight depression at the foot of the shaft, under the cage, and that, when he got under the cage, it was descending upon him but four or five feet above him. Under this testimony,

Trespass by Annie Budnar against the Mineral Railroad & Mining Company, for death of plaintiff's husband. From an order refusing to take off nonsuit, plaintiff appeals. Affirmed.

Argued before FELL, C. J., and BROWN, MESTREZAT, ELKIN, and MOSCHZISKER, JJ.

was not a question of fact for the jury, but a necessary legal conclusion, from which the court could not escape. The very instant the deceased stepped into the sump the consequences of his negligence were brought home to him. McDonald v. Iron & Coal Co., 135 Pa. 1, 19 Atl. 797. Further discussion is uncalled for.

Judgment affirmed.