children, but grandchildren, such grandchildren, being the great-grandchildren of the testator, would be disinherited, as grandchildren do not take under a devise to children. Gable's Ex'rs' Appeal, 40 Pa. 231. In doubtful cases such a construction should be adopted as would distribute the estate as nearly as possible according to the intestate laws. The word 'heirs,' we think, therefore, should not be construed as synonymous with 'children.' That it was not used in its general sense is evident from the fact that the limitation over is to testator's grandchildren, who would be the collateral heirs of a deceased grandchild not leaving lineal heirs. It seems, then, that the testator intended here to limit the estate given to his children to their lineal heirs or issue, which shows also his intention to use the word 'children' in its comprehensive and extended sense, meaning issue or heirs of the body. If this construction be correct, the gift then is to his children for life, with remainder to the heirs of his body, or their issue, which vested in the children a fee tail, enlarged by the act of assembly into a fee simple. Another reason for so construing this will is, if the limitation is to grandchildren as such, and none of his sons or daughters left children, there would be intestacy, which is to be avoided if possible. This construction is supported by the following cases: Haldeman v. Haldeman, 40 Pa. 29, where the words 'child or children' were held to be used in the sense of issue of heirs of the body; Brinton v. Martin, 197 Pa. 615, 47 Atl. 841; Potts v. Kline, 174 Pa. 513, 34 Atl. 191; Yarnall's Appeal, 70 Pa. 335; Sheeley v. Neidhammer, 182 Pa. 163, 37 Atl. 939. Although the gift to the testator's sons and daughters is the proceeds or interest of his estate, yet, as his intention seems to have been to give the proceeds or interest to them forever, it is equivalent to a devise of the fee. Haldeman v. Haldeman, supra; Saxton v. Mitchell, 78 Pa. 479. As the testator's sons and daughters took the fee under his will, and have made an amicable partition of the land devised to them, this petition must be dismissed."

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

C. W. Reamer and D. M. Miller, for appellant. J. L. Ritchey and D. S. McCann, for appellee.

PER CURIAM. The decree is affirmed on the opinion of the court below.

(207 Pa. 601)

DOUGHERTY v. WELLINGER. (Supreme Court of Pennsylvania. Jan. 4, 1904.)

WILLS-CONSTRUCTION-NATURE OF ESTATE. 1. Where testator devised land, and prohibited its sale during the life of the devisee, and thereafter, by codicil, devised land owned by 57 A.-3

him at the date of the will to a devisee mentioned in the will, without any restriction, the devisee acquired under the codicil a fee in the land.

Appeal from Court of Common Pleas, Allegheny County.

Action by John Dougherty against John G. Wellinger. From a judgment for plaintiff on a case stated, defendant appeals. Affirmed.

The following is the opinion of the court below (Frazer, J.):

"The facts set forth in the case stated are as follows: Joshua T. Bartholic, by last will and testament, dated March 19, 1883, devised certain real estate to his children and grandchildren. After making these devises he provided, inter alia, as follows: 'Further, it is my will and I so direct that the real estate by me devised to my several children and grandchildren shall not be sold during their natural lives but at the death of any one of them, or at the death of each one of them that their respective portions of real estate, devised and bequeathed to them be sold and the proceeds of sale be equally divided between each one of their respective children, share and share alike, and if either of my said children and grandchildren die leaving no issue, child or children, then and in that case his or her share of the devises by me made to such one of my children or grandchildren be equally divided among my remaining child or children, share and share alike.' Afterwards, at different times, testator executed four codicils to his will, the third of which being dated April 27, 1888, in which he directs that certain of his real estate not mentioned and included in his original will be divided by his executors into twelve lots, two of which lots (Nos. 9 and 10) he devises to his son Jonathan W. Bartholic. That, after the death of testator, Jonathan W. Bartholic took possession of lots Nos. 9, and 10, and subsequently conveyed the same in fee simple to plaintiff's predecessors in title. That the same, by subsequent transfers, became vested in the plaintiff, John Dougherty, who, by articles of agreement, agreed to sell and convey the same to the defendant, John G. Wellinger, for the price or sum of $1,600. That a deed was tendered by plaintiff to the defendant for the property, which defendant refused to accept; alleging as a reason for his refusal that the devise by Joshua T. Bartholic to Jonathan W. Bartholic was for life only, and that plaintiff was unable to convey a fee-simple title to the defendant. It was further agreed that, if the court should be of opinion that the devise by the will of Joshua T. Bartholic of lots Nos. 9 and 10 to his son Jonathan W. Bartholic was a devise in fee simple, judgment was to be entered in favor of plaintiff and against the defendant for the sum of $1,600 and costs; if of the opinion that Jonathan W. Bartholic took but a life estate in the property, then judgment to be entered for the defendant, with costs.

"It seems clear to us that Jonathan W. Bartholic acquired a fee-simple title to the property, and that it was the intention of the testator that he should take such title. As we understand the facts set forth in the case stated, the clause above quoted, which occurs only in the original will, of November 21, 1889, applies solely to real estate devised in that will, and does not apply to the devises made in the subsequent codicils. In no other part of the will, nor in any of the codicils, are similar words to be found, nor any words indicating an intention upon the part of the testator that the condition imposed by that clause quoted should apply to devises made in the codicils. On the contrary, a careful reading of the codicils indicates an intention upon the part of the testator to devise the real estate not included in the original will, and especially that divided into lots, free from the effect of the condition in the original will above quoted. Being of the opinion that Jonathan W. Bartholic took a feesimple estate in lots 9 and 10 under the codicil of April 27, 1888, it is ordered that judgment be entered in favor of the plaintiff for the sum of $1,600, with costs of suit."

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

R. A. Kennedy, for appellant. Edward J. I. Gannon and James A. Dougan, for appellee.

PER CURIAM. The judgment is affirmed on the opinion of the learned judge below.

(207 Pa. 649)

KERLIN v. KNIPP. (Supreme Court of Pennsylvania. Jan. 4, 1904.) SPECIFIC PERFORMANCE-WHEN SUIT MAINTAINABLE.

1. Where one having a contract for the purIchase of land knows that his vendor has conveyed it to an innocent third party for value, he cannot maintain a bill for specific performance, and ask to have his damages assessed thereunder for breach of contract.

Appeal from Court of Common Pleas, Allegheny County.

Bill by Annie L. Kerlin against John C. Knipp. From a decree dismissing the bill, plaintiff appeals. Affirmed.

The following is the opinion of the court below (Shafer, J.):

"(1) On and before December 28, 1895, the plaintiff was the owner of eighty acres of land, more or less, in Indiana county, and the defendant was the owner of a house and lot in Wilkinsburg, Allegheny county. On that day they, with the husband and wife of each, respectively, entered into a contract of exchange.

1. See Specific Performance, vol. 44, Cent. Dig. §§ 82, 416.

"(2) In accordance with this agreement, the plaintiff, with her husband, conveyed to the defendant the farm in Indiana county, and he took possession of it February 1, 1896. After the deed was delivered, the defendant discovered that, instead of being free from all incumbrances, as the agreement required, the land in Indiana county was subject to a mortgage of $1,000 made by the plaintiff to H. F. Doris, together with a judgment in favor of one Bialas for the sum of $200, and certain taxes. The defendant thereupon went to Mrs. Kerlin and told her of these incumbrances, and she told him that she would have Dr. Doris fix it up, which she repeated to him on a second visit. Her husband and Doris then called on Knipp, the defendant, and told him that it had been arranged by Mr. and Mrs. Kerlin and Doris that the deed should be made to Doris, and he would pay the incumbrances and hold the property as security.

"(3) Knipp thereupon, without further communication with Mrs. Kerlin, the plaintiff, on June 23, 1896, made a deed for his house and lot in Wilkinsburg to Doris, who paid the mortgage, the judgment, and the taxes, and Knipp gave his check for the $250, which he was to pay to Mrs. Kerlin according to the contract. This check was made by Knipp to the order of Mrs. Annie Kerlin, and was indorsed, 'Annie Kerlin,' and 'Samuel L. Kerlin.' Mrs. Kerlin says she never received or indorsed this check, and Samuel L. Kerlin, her husband, says that he forged her signature, and this we find to be the fact.

"(4) On December 22, 1899, Annie Kerlin, the plaintiff herein, filed her bill against H. F. Doris and one Rose Bannon, to whom he had conveyed the land in question, in which she claimed that Doris had obtained title to the lot in question, among others, as trustee for her, and prayed a reconveyance to be made from Rose Bannon, the grantee of Doris. This bill was dismissed, as against Rose Bannon, for the reason that she appeared to be a purchaser for value, without notice, and a decree was entered for an account between the plaintiff and H. F. Doris as to the lot in question. Mrs. Kerlin testifies that, before she brought the suit against Doris, she notified Knipp that she was about to bring it, and, if she was not successful in it, she would proceed against him. In this she is corroborated by two young girls-one her daughter, and a visitor. Mr. Knipp denies any such notice was given him, and we find it was not.

"(5) The present bill was filed February 21, 1903, and at no time from the making of the deed to Doris, in 1896, until a few weeks before the filing of the bill, did Mrs. Kerlin make any demand of the defendant, Knipp, in regard to the property in Wilkinsburg, or the $250 which he was to pay her, or say to him in any way that she was dissatisfied with the conveyance to Doris; nor did she demand of him any rent or compensation for

the use of the property, although she was well acquainted with the plaintiff, and on one occasion, before the bringing of the suit against Doris, she asked him to lend her $19, which she said she wished to pay in the suit against Doris to compel him to turn over the property."

The court dismissed the bill on the grounds (1) that there was an adequate remedy at law; (2) that plaintiff was barred by her laches; and (3) that plaintiff was barred by the act of April 22, 1856.

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

L. C. Barton, for appellant. William P. Schell, Jr., and R. H. Douglas, for appellee.

PER CURIAM. The parties agreed in writing in December, 1895, to exchange lands, and in February, 1896, plaintiff made a deed of her land to defendant, who thereupon went into possession. This bill was filed in 1903-more than seven years after the contract which it seeks to enforce specifically, and in the meantime defendant had conveyed the land to one Doris, and he, in turn, to an innocent purchaser for value. Defendant claims that this was by arrangement with plaintiff. With this, however, we have nothing at present to do. It is sufficient that plaintiff was aware of the conveyance, and brought suit against the purchaser, which was unsuccessful. It thus appears clearly that when plaintiff filed this bill she knew that she could not have the relief by specific performance which she sought. Her sole claim that was left was for breach of the agreement, and her appropriate remedy was an action at law for damages. In this the whole merits of her controversy with defendant could be determined, and adequate compensation secured. The bill, therefore, was properly dismissed for want of jurisdiction in equity.

Cases in which a court of equity, having jurisdiction, but finding a decree for specific performance impossible or even inexpedient, has awarded damages, stand upon a different footing. Thus, in Masson's Appeal, 70 Pa. 26, cited for appellant, the bill was for an injunction to stop the use of plaintiff's party wall by defendant until it should be paid for. Pending the suit, the parties agreed that defendant might use the wall; he giving bond for the sum that might be awarded to plaintiff. It was held that the amount might be ascertained, and decreed as damages. So, in Maguire v. Heraty, 163 Pa. 381, 30 Atl. 151, 43 Am. St. Rep. 800, also cited, the bill sought to have the first purchaser, who had a deed on an oral contract, declared a trustee for the second, who had the vendor's contract in writing. This, however, failed; but, there being a decree pro confesso against the vendor, the court held that damages might be assessed under that. In both these cases the

bill presented a claim cognizable in equity, if it had been sustained by the facts, and therefore the jurisdiction of the court attached. Here, on the contrary, the plaintiff, as already said, knew when she filed her bill that the relief prayed was beyond the power of the court, and her only remedy was at law.

Decree affirmed, with costs.

(207 Pa. 580)

In re WARNER'S ESTATE. (Supreme Court of Pennsylvania. Jan. 4, 1904.)

HUSBAND AND WIFE-ANTENUPTIAL SETTLEMENT-FRAUD-ADMINISTRATOR -APPOINTMENT.

1. Where a prospective husband nearly 80 years old, and possessed of a competency, by an antenuptial agreement cuts off the woman he is about to marry without a cent for her support after his death, it raises the presumption that he designedly concealed from her the value of the estate.

2. Where a widow and the sons of the decedent by a former marriage are bitterly antagonistic, the register should appoint a disinterested person as administrator on the failure of the parties to agree.

Appeal from Orphans' Court, Allegheny County.

In the matter of the estate of E. S. Warner, deceased. From a decree revoking letters of administration, R. E. Warner and Lawrence Warner appeal. Reversed.

In 1897 Dr. E. S. Warner and Mary Sands, being in contemplation of marriage, executed an agreement in writing, by which they relinquished all marital rights in each other's estates.

The auditing judge (Miller, J.) found other facts as follows: "On August 11, 1897, an addition to the foregoing agreement was made and duly executed by both parties, wherein it is stated that the decedent owned real estate on Ninth street, Pittsburg, valued at $15,000, and real estate on Penn avenue, Pittsburg, valued at $25,000, and personal property consisting only of household goods and furniture. On the same day the parties were married, the decedent then being seventy-seven years of age, and his wife about fiftyfive years of age. She had no separate estate in possession or expectancy, save the right to a small annuity, which bears no comparison to the estate of the decedent. He died on November 29, 1902, intestate. He left no provision whatever for her. The inventory filed shows personal estate amounting to $32,266.49. The real estate on Ninth street, Pittsburg, was still in his possession, and is part of his estate, and is in a section of the city where values have greatly increased. His widow, at the solicitation of the decedent's two sons by a former marriage, who are his sole heirs, within a few days after his death went with them to the office of their counsel,

1. See Husband and Wife, vol. 26, Cent. Dig. § 165.

who had also been counsel for their father, and who had prepared and been a witness to the foregoing antenuptial agreement. There it was represented to her that by virtue of the execution of the above-recited agreement she had no interest whatever in the decedent's estate-had no right to administer thereon; whereupon she renounced her right of administration in favor of decedent's sons. Shortly thereafter, she no longer having a home or means of living from her husband's estate, upon a disclosure of her situation, and a statement of the facts hereto concealed, she procured counsel and presented her petition, averring that she had never been advised of her rights; that her renunciation had been obtained through fraud and misrepresentation; asking for a revocation of the appointment of administration. The answer filed sets up the antenuptial agreement."

The court entered the following decree: "And now, to wit, June 18, 1903, this matter having come on for a hearing, the evidence produced on behalf of the petitioner and of the respondents having been heard, and the case having been argued by counsel, upon consideration thereof it is hereby ordered, adjudged, and decreed that the letters of administration upon the estate of E. S. Warner, deceased, heretofore granted by the register of wills of said county of Allegheny to R. E. Warner and Lawrence Warner, are revoked; that the renunciation of the right to administer on said estate, signed by Widow Mary Warner, is null and void; and that the register of wills issue letters of administration on said estate according to law."

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

D. F. Patterson, B. F. Mevay, and S. A. Johnston, for appellant. J. M. Stoner and R. T. M. McCready, for appellee.

BROWN, J. The renunciation by the appellee of her right to administer on the estate of her deceased husband was clearly due to her mistaken belief, under the facts as developed at the hearing in the court below, that she had relinquished all of her marital rights by her antenuptial agreement. This was originally executed July 6, 1897, and by its terms the prospective husband, nearly 80 years of age, and possessed of a competence, cut off the woman he was about to marry, 20 years his junior, without a cent for her support from his estate after his death. It is so harsh and unreasonable on its face as to raise the presumption that he designedly concealed from her the value of his estate at the time it was executed. Bierer's Appeal, 92 Pa. 265. The presumption that the appellee was not informed of the value of his estate at that time becomes almost conclusive in the light of the testimony of his attorney who prepared the paper and witnessed its execution. Having subsequently, as he testified,

examined the authorities, and satisfied himself that trouble might arise from "an allegation on the part of the widow that she did not have full information as to the amount of the estate of the intended husband at the time of the execution of the paper," he deemed it prudent for the protection of his client to have added to it what the parties signed on August 11, 1897.

If this contract is to be sustained, it will only be after those claiming under the deceased husband have, by proper proof, overcome the presumption that there was concealment from the wife, amounting to a fraud upon her, of the value and extent of his estate. This burden was cast upon the appellants at the hearing in the court below, but the only proof submitted by them was the supplemental writing of August 11th. Under the circumstances attending its execution equity ought not, and will not, regard it as sufficient for the purpose for which it was offered. There was no proof that at any time before August 11th the appellee had full knowledge of what estate her husband possessed, or that she had acted intelligently in entering into the contract, most improvident for her; but on that day, when, with the man she was about to marry, they were on their way to the parson's house, she was taken by him into his lawyer's office for the admitted purpose of attempting to do what his attorney had satisfied himself from the authorities ought to have been done on July 6th. There, unattended by any one to look after her interests, and confronted by the attorney, zealously trying to protect the estate of the man she was about to marry, she signed the paper purporting on its face to be an acknowledgment that she knew what estate he owned and possessed. The couple then proceeded to the parsonage and became man and wife. Though the paper was read to her, it gave her for the first time information that ought to have been given to her on or before July 6th, if the agreement of that day is to have any effect. That she is now to be concluded by the information imparted to her under the circumstances stated offends reason and good conscience; for when on her way to the altar to take the most sacred vow assumed by woman it can hardly be seriously contended she could, in a moment, have acted with the intelligence and proper apprehension required by the law to make binding upon her the contract which excludes her from all participation in her husband's estate.

The learned court below, in overruling the exceptions to the findings and conclusions of the judge who heard the application for the revocation of the letters granted to the appellants, was of opinion, without regard to the testimony of Mrs. Warner, that the antenuptial agreement was unreasonable, and that there was a presumption of concealment by the decedent which had not been overcome by his sons. While we adopt as correct all

that the learned president judge says in holding, without regard to anything testified to by Mrs. Warner, that the antenuptial agreement was unreasonable, and that the presumption of concealment by the decedent had not been overcome by his sons, at this time and at this stage in the settlement of the estate we will pass only upon the question of the right of administration and of the duty of the register in granting letters. Though, as the widow of the deceased, not bound, according to the testimony now before us, by her antenuptial contract, the appellee is entitled to letters of administration, the regis ter is not obliged to grant them to her if it be inexpedient to do so. "Other things being equal, the widow is entitled to be preferred." Wilkey's Appeal, 108 Pa. 567. But those otherwise entitled to administer may be rejected on account of the inexpediency of committing the trust to them. Ellmaker's Estate, 4 Watts, 34; Bieber's Appeal, 11 Pa. 157; Cornpropst's Appeal, 33 Pa. 537. With the antagonisms and differences existing between the appellee and the two sons of her husband by his former marriage, the best interests of the estate will be promoted by committing the administration of it to some disinterested fit person to be appointed by the register of wills, if the parties to this controversy cannot agree upon an administrator. By such appointment, though the present differences may continue, controversies and disputes otherwise certain to take place between the appellee and her stepsons will be avoided.

The decree of the court below is reversed, and the record remitted, with direction that the register of wills of the county of Allegheny grant letters of administration on the estate of E. S. Warner, deceased, to some disinterested fit person, natural or artificial, to be named by him, at his discretion, if the appellants and appellee cannot agree upon an administrator, the cost of this appeal to be paid out of the estate; this decree to be without prejudice to the right of the appellants to again raise, on distribution or in proceedings in partition, the question of the validity of the marriage contract, if, in view of what we have said, they can submit the proofs requisite to sustain it as binding upon the appellee.

(207 Pa. 604)

In re SMITH'S ESTATE, Appeal of LYON et al. (Supreme Court of Pennsylvania. Jan. 4, 1904.)

CONTINGENT REMAINDERS-JUDICIAL SALES

CONSTITUTIONAL LAW-VALIDITY.

1. Act April 18, 1853 (P. L. 503), providing for the sale of a decedent's real estate against the will of parties in interest sui juris, so as to divest contingent remainders and executory devises, is within the power of the Legislature.

2. An order of the orphans' court directing the sale of real estate under Act April 18, 1853, will not be reversed where the property was heavily incumbered, so that if the rentals should

fall off or taxes increase it would be in serious peril, and where the orphans' court judges, who were familiar with the property, determined that it was for the best interests of all parties concerned that the sale should be made.

Appeal from Orphans' Court, Allegheny County.

In the matter of the estate of Martha McD. Smith. From a decree ordering the sale of her real estate, Anna H. Lyon and others appeal. Affirmed.

The orphans' court entered the following decree: "And now, to wit, July 25, 1903, upon consideration of the petition, the answers filed, the testimony taken, and after argument of counsel, the court being of the opinion that it is to the best interest and advantage of all the parties interested in the land described that the same should be sold at private sale, that the price offered therefor is a higher and better price than could be obtained at public sale, and that the same may be sold without injury or prejudice to any trust, charity, or purpose for which the same is held, and may be done without the violation of any law which may confer an immunity or exemption from sale or alienation, therefore the Fidelity Title & Trust Company is hereby appointed trustee for all parties interested in said land, for all vested and contingent interests, and for all persons not yet in esse under the will of the decedent. And it is ordered, adjudged, and decreed that the said Fidelity Title & Trust Company, trustee, shall make private sale to Henry W. Oliver of the land and premises described in the petition for the price and upon the terms and conditions therein set forth, freed from any contingent remainder or executory devise limited thereon and any entailment thereof, and the said trustee is hereby authorized to execute and deliver a deed to the said purchaser upon his compliance with the terms of sale."

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

W. K. Jennings and D. C. Jennings, for appellants. S. W. Cunningham and Sion B. Smith, for appellees.

MESTREZAT, J. Martha McD. Smith died testate in 1880, leaving to survive her three sons and two daughters. By partition proceedings under her will, her three sons became seised of certain real estate for life, with remainder to the children or grandchildren of each, per stirpes, in fee, subject to a life estate given the widow, if any, with a provision that if any son should die leaving no issue his share should go to his surviving brothers and sisters for life with like remainders. One son died in 1893 without issue, and his share became vested in his two brothers and his two sisters for life, with remainders to their children or grandchildren, per stirpes, in fee. Each brother thereby became entitled to the undivided