personal and mixed," is a valid execution of a general testamentary power of
appointment.-Stokes' Estate, 29.
Es ate of Mary Ann Cawley, Deceased.
Testamentary capacity for the valid execution of a will is the knowing
and comprehending the transaction; or in the popular phrase, that the de-
cedent should, at the time of executing the will, know and understand what
she is about.
The question being the condition of the decedent's mind on the day the will
was written, under all the authorities, the evidence of its condition at a time
near the date would be evidence as to its condition at that time.
Proof of testamentary capacity should be made by "evidence of the most
unexceptional kind and character bearing on every act of dispostition, and
confined to the time of execution."
The age of attesting witness is only to be considered with reference to
The age of the attesting witness is only to be considered with reference to
the requisite degree of intelligence necessary to competence in the witness. As
regards children, no arbitrary and conclusive standard of years can be estab-
lished, as the degree of understanding, which is the test of competency, is not
developed at the same age.
The testimony of the subscribing witnesses to a will is, of course, entitled
to great respect. In the absence of countervailing proof, it is decisive, but
the court should not hinge the cause upon the testimony of subscribing wit-
nesses, if there are other material facts and circumstances, and opinions of
other witnessess in evidence, bearing upon the question of the defendant's
capacity.
Evidence in this case held to be sufficient to sustain the appeal.-In Re.
Estate of Mary Ann Cawley, Deceased, 49.
Estate of Leopold Galboesch, Deceased.
An administratrix, as to expenses of administration, should await the final
settlement of her administration account, when, if a deficiency of personal
assets appears, a sale may be authorized to pay the balance due the accountant.
The Act of June 8, 1893, P. L. 392, only has reference to debts of a de-
cedent existing at the time of his death, and does not apply to debts and ex-
penses necessarily incurred after his death, in his burial and settling his es-
tate. Such claims are not debts of the decedent within the meaning of the
act, although payable out of his estate.
Where an administratrix has paid from her funds a debt of the decedent
she may obtain an order of sale to repay to her the said debt.
That the original creditor had been paid by the administratrix does not
deprive the latter of her right to call for re-payment; such payment entitles
her to subrogation.
Mere inadequacy of price is not sufficient ground for setting aside an Or-
phans' Court sale.
Where sufficient cause does not appear an order confirming a sale will
not be vacated.-In Re. Estate of Leopold Galboesch, Deceased, 65.
Petition and Answer.
Elton's Estate, 82.
Schaeffer's Nomination, 91.
Estate of Mary Ford, Deceased,
When a sale is sought, for the payment of debts, the court should be satis-
fied that not only that the personal estate is insufficient for the payment of
debts, but that the claims alleged to exist against the estate are bona fide
debts, due and unpaid.
It is sufficient if the claimant establishes a prima facie claim.
Under the Act of June 11, 1891. P. L. 287, providing that a party otherwise
incompetent may, testify as to relevant matter occurring in the lifetime of
deceased, if another and competent witness has testified that said relevant
matter occurred in his presence and in that of the surviving party the testi-
mony of such competent witness must be adverse to the surviving party.
On account of the identity of interest of husband and wife, when one
of them is incompetent to testify as witness, the other also is incompetent.
Sec. 5, Clause (e), Act of May 23, 1887, P. L..158.-Estate of Mary Ford, de-
ceased, 117.
Exception to Report of Viewers.
Application of John A. Dieter for appointment of viewers, 140.
Exceptions to Readjudication.
Singer's Estate, 159.
Assesments of Benefits and Damages.
An exception to an assessment as being too high is not well taken.
remedy is by appeal.
An ordinance must be sustained that contains the essentials of a complete
ordinance for the purpose for which it was enacted.
The duties of viewers appointed under the remedial act of May 16, 1901,
P. L. 71, and the act of May 16, 1891, P. L. 75, are clearly stated in the case of
Omega Street, 152 Pa., 129.-In Re. Assessment of Benefits and Damages, 12th
Sewer Distrist of Scranton, Pa., 170.
Where a will has been duly probated, and letters granted, the only mode in
which they can be revoked by the Orphans' Court is on appeal from the
register.-In Re: The Estate of William Cornell, Deceased, 211.
Rule to Show Cause.
Gerber's Estate, 306.
tition for a Decree for the Specific Performance of a Contract.
Petition of Patrick W. Feley, deceased, 318.
Removal of R. F. Walker, Justice of the Peace, 325.
Redivision of the Wards of Winton Borough, 328.
Exceptions to Report of Viewers.
Paving and Grading Capouse avenue, in the City of Scranton, 360.
The Estate of Billington Ruckle. 365.
Rule for, Now Obstante Veredicto.
An action of trespass was brought against the defendant, an insurance
agent, to recover damages on the theory that he agree, as agent for the
Lodge, to extend the insurance, then in force, at its expiration; that he had
neglected to do so and that as a result of such negligence, through a fire, the
Lodge lost the amount of the insurance.
It was shown that the defendant received the premium and that he agreed
to give the Lodge an extension of insurance when the policy, then in force
would expire., The jury found for the plaintiff.
Held: That the evidence will support the finding of the jury that the
defendant was the agent of the Lodge in the matter of getting an extension of
the insurance. He was not acting in his capacity as an agent for any insur-
ance company when he agreed to extend the insurance, and even if he only
represented one insurance company it could not have been held liable to the
plaintiff. He did not agree to insure the Lodge; he could not do so; and it
could only be fairly inferred that he would procure insurance in an insurance
company for them. Under such circumstances he became the agent of the
Lodge. Sheridan Lodge, Knights of Pythias, No. 210, of Peckville, in Lacka-
wanna County vs. Samuel W. Arnold, 1.
Applications to open judgments by default, and let the defendants in.
defence, are appeals to the equitable power of the court, and should be made
with reasonable promptness.
A defendant having knowldge of a judgment against him. for eleven years,
is in no position to invoke the aid of a court of equity for relief against the
collection of such judgment.
Unless a defendant can give a satisfactory excuse for an unusual delay, he
is chargeable with laches.-F. J. Johnson vs. Arthur Frothingham, 11.
A contract "guaranteeing" payment of a debt "when due" is a contract of
suretyship.
Unless restrained by the bankruptcy court, the creditors of one against
whom a petition in bankruptcy has been filed are not debarred by the mere
fact of its filing from instituting their actions in the state courts against him
and prosecuting them to judgment.—Reading Trust Co., vs. Boyer, 21.
Highland Brewing Company vs. Becker, 41
Edwards vs. Welsh Baptist Church, 53.
While book entries can be given using terms commonly known in the
trade; yet the character of the business must be stated somewhere so as to
make the statement intelligible, precise and concise.-Tobyhanna Creek Ice
Co. vs. Bert Kime, 147.
City Savings Fund and Trust Co. vs. Lintner. 155.
Rule to Show Cause.
Fiegenbaum, et. at. vs. O'Mara, 200.
Stephenson vs. Dodson. 277.
Keilholz vs. Keilholz, 298.
Rule for Non Obstante Veredicto.
City of Scranton vs. M. A. Ansley, et. al., 329.
City of Scranton vs. M. C. Ansley, et. al., 329.
The Act of June 4, 1901, P. L. 364, does not require a bill of particulars and
a mere general description of the kind of work is sufficient. The authority
to amend at any time is conferred by Sec. 35 of the Act.-City of Carbondale
vs. Patrick Campbell, 339.
The county commissioners alone, with the approval of the judges, as pro-
vided in the Act of April 19, 1895, P. L. 38, have a right to make modifications
in a contract for the erection of a county court house. They cannot delegate
any authority in reference thereto to the county controller, and he has none
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