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Me.)

PATTEN Y. FIELD

77

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by the receiver from the income of the road, The ownership of the freight car being pass, by the sale, to the purchaser? The the principal contention, the balance of the mortgage which was foreclosed in this case property contained in Schedule B was, by covered not only the railroad and other consent of counsel, ordered delivered to the real property, but also the cars, engines and said purchaser, absolutely and unconditionother rolling stock, and all descriptions of ally. personal property owned by the railroad company, or to be thereafter acquired. The road and its equipment constituted the complete

(108 Me. 299) and entire thing which was covered by the

PATTEN V. FIELD. mortgage. The road, on the one hand, and (Supreme Judicial Court of Maine. July 15, the equipment on the other, were useless

1911.) unless held and used together. One of the 1. TRIAL (8 139*)—DIRECTING VERDICT. purposes to be accomplished in the appoint- returning a verdict for defendant, it is error

If the evidence would warrant a jury in ment of a receiver, was the preservation of to direct à verdict for plaintiff. the mortgaged property. This could only be [Ed. Note.-For other cases, see Trial, Cent. done by repairing the track, and replacing Dig. § 338; Dec. Dig. § 139.*] the engines and cars when required. Money 2. FRAUD (8 9*) — ACTIONABLE DECEIT-ELexpended for either of these purposes be

EMENTS. comes incorporated into the corpus of the that defendant made a false representation as

In an action for deceit, it must be shown mortgaged property. *

to a material fact, that he knew it was false, “The claim of the petitioners is, that after or made it as a statement of fact of his own the road passed into the hands of the re- knowledge not knowing whether it was true ceiver, all its income and profits became rely on it, and that plaintiff was ignorant of

or false, with the intent that plaintiff should their property by an absolute title, and, its falsity and acted upon it to his damage. therefore, that the engines, and other prop [Ed. Note.-For other cases, see Fraud, erty purchased with such income and profits, Cent. Dig. $ 8; Dec. Dig. $ 9.*] vests in them, and do not become part of 3. FRAUD (64*) – ELEMENTS OF DECEIT –

QUESTIONS OF FACT. the mortgaged property.

Whether the elements of actionable deceit “There is no consideration which would existed in an action therefor were questions of justify the Court in holding that the pur- fact to be determined from the evidence and the chasers of the mortgaged property have not inferences to be drawn from the facts estab

lished. acquired title to the rolling stock bought by

[Ed. Note.-For other cases, see Fraud, Cert. the receiver. It was as much a part of the Dig. $$ 67–71; Dec. Dig. § 64.*] mortgaged property as the iron rails put on 4. FRAUD (8 64*)-DIRECTING VERDICT. the track by him."

Where there were facts and circumstances In accordance with the foregoing opinion in an action for deceit from which the jury

might have reached the conclusion that plainthe following order was entered:

tiff did not believe and rely upon the alleged "And Now, To Wit, this eighth day of Au- misrepresentations, it was error to direct a gust, A. D. 1911, argument upon the forego- verdict for plaintiff. ing agreed statement of facts having been

[Ed. Note.-For other cases, see Fraud, Cent. heard and carefully considered by the Chief Dig. & 70; Dec. Dig. & 64.*]

DIRECTING VERDICT Justice, and the Chief Justice being of the 5. TRIAL ($ 139*) , –

QUESTIONS FOR JURY. opinion that the new freight car mentioned

Where fair-minded and unprejudiced perin Schedule B filed and attached to the Or- sons might reasonably differ on the conclusions der made by the Chief Justice on the twen- to be drawn from undisputed facts, the ques

tion is for the jury. ty-sixth day of January, 1911, is covered by the lien of the mortgage given by the Wil- Dig. 88 338-341; Dec. Dig. § 139.*]

[Ed. Note.-For other cases, see Trial, Cent. mington and New Castle Electric Railway Company and that the title to the same pass

Exceptions from Supreme Judicial Court,

Penobscot County. ed to the purchaser, Solomon Hanford, under the foreclosure sale, and the said new

Action by Harvey H. Patten against Wil. freight car having been held by the said liam N. Field. On the case for deceit. Solomon Hanford subject to the further or Plea, the general issue, with special plea der of this Court,

as follows: “And now the said defendant, "It is ordered by the Chief Justice (the William N. Field, by his attorney, comes and Chancellor being disqualified to sit in this defends, etc., when, etc., and says that the cause), that Wilmer Palmer and Joseph Ches- said plaintiff, H. H. Patten, ought not to ter Gibson, Receivers of the Wilmington, have or maintain his aforesaid action there. New Castle and Southern Railway Company, of against the said defendant, because the be and they are hereby authorized and di- said defendant, William N. Field, avers that rected to deliver unto Solomon Hanford, or after the making of the said supposed promhis assigns, absolutely and unconditionally, ises and undertakings and the accruing of the new freight car mentioned in Schedule the said several causes of action in the B, as aforesaid."

plaintiff's declaration, if any such were made

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

or accrued, a discharge in bankruptcy was he says, 'there is that $200 check; we have granted to him, the said defendant, by the got to have $800 more to go with it." I says, District Court of the United States for the 'I wouldn't want to use this woman's check District of Maine. A certificate of such dis- if this thing isn't going through all right, charge under seal of the said court granting because I should feel that I ought to pay the same is hereto attached."

the woman back if we used the check. He At the conclusion of the evidence the pre commenced to talk and wanted to know if I siding justice ordered a verdict for the plain-doubted his financial condition. I says: I tiff for $454, and the defendant excepted. don't know. I suppose you are all right.' Exceptions sustained.

He says, 'I am,' and went on to tell his $30,Argued before EMERY, C. J., and KING, 000 wool story and about the sheep he owned BIRD, and HALEY, JJ.

in his own right; that he practically owned Martin & Cook, for plaintiff. Fellows & a thousand sheep. He says, 'I am good for Fellows, for defendant.

the whole amount.' I says: 'Field, I am

willing to stand one-half of this. I will pay PER CURIAM. Action on the case for de- $400 and you pay $400, and we will turn the ceit. In addition to the general issue, the check in.' He says:

He says: 'I can't this morning. Jefendant pleaded his discharge in bank- If you will sign a note with me that is, ruptcy proceedings commenced after the time have the woolen company on it and Sayles' of the alleged deceit. The case comes up on name—we will take care of it; I will take exceptions to the ruling of the presiding care of it myself.' He says, 'And then you justice directing a verdict for plaintiff. ain't losing but one-half anyway, and we

It appears that the plaintiff, his partner, took and signed the note.” Mr. Sayles, and the defendant agreed to On October 1st the plaintiff paid the note, organize a corporation to purchase a woolen and also sent the woman in Maine the $200 mill property in Uxbridge, Mass. Mr. Sayles she had sent for stock. was one of the heirs owning the property and The defendant was not present at the was to put in his interest for stock in the trial, and no evidence was presented in his corporation; $25,000 was to be paid to the behalf other than his discharge in bankruptother heirs, $1,000 on September 1, 1909, cy. The presiding justice asked plaintiff's and the balance on September 15, 1909. The attorney how much he claimed, and he replaintiff and the defendant were to organize plied, "For the note, $400, and the check, and finance the corporation and each have a $54.” Thereupon a verdict for $454 was block of the stock equal to that of Sayles.directed for the plaintiff. The corporation was organized and the plain [1] If the evidence in the case would have tiff paid the expenses thereof. Thereafter warranted the jury in 'returning a verdict the plaintiff and defendant went to New for the defendant, the exceptions must be York and made arrangements with certain sustained; otherwise, overruled. brokers to undertake the financing of the [2] To sustain this action there must be proposition, to whom it was necessary to clear and decisive proof of each and all the pay $54 for advertising. This amount was essential elements of actionable deceit; that for defendant to pay; but, not having the the defendant made a representation in remoney, he requested plaintiff to pay it for gard to a material fact; that the representahim, saying: "I am all right.

Ition was false; that he knew it was false, or have been holding $30,000 worth of wool made it as a statement of fact of his own about two years, and it has taken every dol- knowledge not knowing if it was true or lar I could get to pay the storage on that false; that it was made with intent that wool. I didn't want to sell on a sacrifice, the plaintiff should rely and act upon it: and I will finance the whole proposition in and that the plaintiff was ignorant of its 60 days." The plaintiff paid the $54, for falsity and reasonably believed it to be true, which defendant gave him his check on a and relied upon it, and acted upon it to his Boston bank. The check was immediately damage. [3] Whether these elements existed presented, but there was “no funds” to pay in this case were questions of fact determiit, and it has not been paid.

nable from the evidence, and the inferences to On September 1, 1909, a note of the corpo- be drawn from facts established by the eviration for $800 on 30 days was made and dence. Had the case been submitted to the signed on the back by the plaintiff, defend jury, they would undoubtedly have been jusant, and Sayles. The proceeds of this note, tified in finding for the plaintiff if they actogether with a check for $200 which plain- cepted his evidence and drew their inferences tiff had received from a woman in Maine for in his favor. [4] But, on the other hand, the sale of stock, was used to pay the first would not a verdict of a jury in the defendpayment on the property. With respect to ant's favor be sustainable upon the evidence the making of this note the plaintiff testi- in this case? It may be conceded that a jury fied:

would not have been justified in this case "Mr. Field came into the office on the in finding that the defendant did not make morning of September 1st. Now,' he says, a false representation of a material fact, 'we have got to raise that thousand dollars.' knowing it to be false, and with intent that

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Me.)

MARSH BROS. & CO. v. BELLEFLEUR

79

OF

can it be held that a jury would not have | 3. ELECTION REMEDIES (8 7*)-RELIEF been justified in finding that the plaintiff did

ASKED. not reasonably believe the alleged represen; uitable title supposedly obtained by a sale on

A bill in equity seeking to convert an eqtations, and did not rely upon them, and execution into a legal one does not seek subwas not induced by them to pay the $54, or stantially the same relief as scire facias to obsign the note, or both? To make the ques- of election of remedies does not apply.

tain

an alias execution, so that the doctrine tion before us more concrete, assume that a

[Ed. Note. For other cases, see Election of jury had made a special finding that at the Remedies, Dec. Dig. 7.*] time the plaintiff signed the $800 note he 4. ELECTION OF REMEDIES (8 11*)—WHEN Exdid not believe the defendant's wool and ISTS. sheep story, and was not induced thereby

Election exists where a party has alterto sign the note, but signed it because he was mined by the choice, but a mistaken selection

native and inconsistent rights, and is deterpersonally interested to have the $1,000 paid, of a remedy that never existed and its fruitand thereby save the option, and expected less prosecution until adjudged inapplicable the note could be paid from sales of stock; does not prevent the exercise of another, if apwould such finding by a jury be sustainable propriate remedy, even if inconsistent with that

first adopted. in this case? We are constrained to the con

[Ed. Note.-For other cases, see Election of clusion that it would. Patten did not testi- Remedies, Cent. Dig. $ 14; Dec. Dig. 11.*] fy that he believed and relied upon Field's representation about the wool and sheep. Report from

from Supreme Judicial Court, Why should he have believed and relied up-Cumberland County. on this representation on September 1st ? It Scire facias by Marsh Brothers & Comwas made to him in New York on August pany, Limited, against Absolom C. BelleSth, when Field gave him his worthless fleur, to obtain an alias execution. Defendcheck, representing it to be good, and Patten ant demurred, and case was reported. Dehad held that dishonored check for nearly murrer sustained. a month as a constant reminder that Field Argued before WHITEHOUSE, C. J., and was not only financially worthless, but had SAVAGE, SPEAR, CORNISH, BIRD, and boldly falsified about the check. In the ab- HALEY, JJ. sence of any statement by Patten that he

Harry L. Cram, for plaintiff. Reynolds & did believe and rely upon the wool and sheep Sanborn, for defendant. story, that essential element of the case can only be found as an inference from Patten's

BIRD, J. Scire facias to obtain an alias act in signing the note. But we do not think execution upon a judgment. that is the only inference that can be prop

It appears from the writ that plaintiff erly drawn therefrom. [5] When fair-mind- corporation recovered judgment in the Sued and unprejudiced persons may reasonably preme Judicial Court of Cumberland Coundiffer in the conclusions to be drawn from ty on the 22d day of June, 1909, against undisputed facts, the question is one of fact the defendant for the sum of $892 damages for the jury.

and costs taxed at $16.70; that on the 26th For the reasons stated, it is the opinion of day of June, 1909, plaintiff took out exe

, the court that the case should have been cution upon this judgment in due form of submitted to the jury.

law; that a deputy of the sheriff of the Exceptions sustained.

county on the 17th day of July, 1909, by virtue of the execution, made a seizure and

levy on certain real estate as the property (108 Me. 354)

of defendant and, after legal notice, sold the MARSH BROS. & CO., Limited,

same on the 21st day of August at public v. BELLEFLEUR.

auction to the plaintiff; that the execution (Supreme Judicial Court of Maine. Sépt. 30, 1 was returned as fully satisfied; that on 1911.)

the 13th day of September, 1909, the plain1. EXECUTION ($ 99*) — ALIAS EXECUTION.

EXECUTION. - tiff brought its bill in equity against said SCOPE OF REMEDY.

Absolom C. Bellefleur and Mabel Bellefleur, Scire facias on a judgment to obtain an

praying that the deed by which said Abalias execution does not lie under Rev. St. C. 78, § 19, where upon the original execution solom had previously conveyed the real esreal property has been sold and not levied upon tate to said Mabel be decreed fraudulent by appraisement and set-off; but an amendment and void; that, a hearing being had on said may be allowed, striking out the words plead- bill, answer, and replication, the court found ing the statute.

[Ed. Note.-For other cases, see Execution, the allegations of the complainant's bill, not Cent. Dig. $81, 3; Dec. Dig. $ 99.*]

admitted by the answer, had not been prov

ed by evidence sufficient to warrant a de2. SCIRE FACIAS (S 8*)—AMENDMENT OF WRIT. A writ of scire facias is amendable in the real estate has not passed by the seizure,

cree against defendants; that, whereas said same manner as declarations in other cases.

[Ed. Note. For other cases, see Scire Facias, levy, and sale and the judgment remains Cent. Dig. & 18; Dec. Dig. $ 8.*]

wholly unsatisfied and not reversed or an

*For other cases see same topic and section NUMBER ip Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes

nulled, the plaintiff is in danger of losing all cannot be sustained. The doctrine of elecbenefit from its judgment. The writ directs tion of remedies does not apply. The bill defendant to show cause why an alias execu- in equity and the writ of scire facias do tion should not be issued on the judgment not seek substantially the same relief. The in accordance with the provisions of section former sought to convert an equitable title 19, of chapter 78 of the Revised Statutes. supposedly obtained by sale upon execution

To plaintiff's writ defendant demurs upon into a legal title. In this the plaintiff failthe grounds following:

ed. The execution remains in fact unsatis1. There is no authority or warrant either fied. The present suit seeks revival of the in statute or common law for the remedy by judgment and a new execution thereon. scire facias as invoked by the plaintiff, Fleming v. Courtenaj, 95 Me. 135, 49 Atl. where property of a judgment debtor attach-614; Weeks v. Edwards, 176 Mass. 453, 57 N. ed upon the original writ has been seized E. 701. Moreover, the doctrine invoked as by a deputy sheriff and sold at public auc- between proceedings at law and in equity, tion, as is alleged to have been done by the at least, relates only to original suits. Laplaintiff in his writ.

raussini v. Carquette, 24 Miss. 151. 2. If such authority or warrant is held to The cases cited by defendant (Hussey V. exist, the plaintiff has, by his election to Bryant, 95 Me. 49, 49 Atl. 56; Jordan y. Haspursue his remedy by bill in equity as al- kell, 63 Me. 193; Marston v. Humphrey, 24 leged in his said writ, deprived himself of Me. 513), as well as Foss v. Whitehouse, 94 the right to any relief under, or benefit of, Me. 491, 48 Atl. 109, and Larrabee v. Lumhis action by scire facias.

bert, 34 Me. 79, are readily distinguishable [1] Upon the first ground, rejecting the from the facts in the case before us. words “or common law” as surplusage, the [4] In short, election exists when a party demurrer must be sustained. Scire facias has alternative and inconsistent rights, and does not lie under R. S. c. 78, § 19, where it is determined by a manifestation of choice. upon the original execution real property But the mistaken selection of a remedy that has been sold and not levied upon by ap- never existed and its fruitless prosecution praisement and set-off. Piscataquis v. Kings- until it is adjudged inapplicable does not bury, 73 Me. 326, 331.

prevent the exercise of another, if appropri. The plaintiff, after demurrer filed, moved ate, even if inconsistent with that first the amendment of his writ by striking out adopted. Snow v. Alley, 156 Mass. 193, 195, the words "in accordance with the provi- 30 N. E. 691; Barnsdall v. Waltemeyer, 142 sions of section 19, of chapter 78 of the Re- Fed. 415, 420, 73 C. C. A. 515; note to Zimvised Statutes of Maine," and it is stipulated merman v. Robinson & Co., 5 Am. & Eng. by the parties that, if the law court sus- Ann. Cas. 962. See, also, Fleming v. Courttains the demurrer, it shall determine also if enay, 95 Me. 135, 49 Atl. 614; Weeks v. Edthe writ is amendable, and, if so, if the pro- wards, 176 Mass. 453, 57 N. E. 701. posed amendment may be allowed.

Demurrer sustained. [2] However formerly held, a writ of scire Amendment allowable on such terms as facias is unquestionably amendable in the may be ordered at nisi prius. same manner as declarations in other cases. 2 Tidd's Prac. (1st Am. Ed.) 1036, 1037; Foster on Scire Facias, 20, 349, 373, 375;

(108 Me. 350) Jackson V. Tanner, 18 Wend. (N. Y.) 526;

SPROWL v. RANDELL. Peacock v. People, 83 Ill. 331. Whether after plea of nul tiel record amendment may (Supreme Judicial Court of Maine. Sept. 30,

1911.) be made is not necessary to be determined. It has been held that scire facias, being a 1. Courts ($ 202*)–PROBATE COURTs-RIGHT judicial writ, shall not abate for want of

OF APPEAL. form. (Foster on Scire Facias, 319); that Neither Rev. St. c. 65, $$ 28–33, nor Rev. errors in matter of form will not be no- St. C. SI, § 7, gives a right of appeal to an ex

ecutor or an administrator of one aggrieved in ticed on general demurrer (McLellan v. Cod- his lifetime by an order of a judge of probate. man, 22 Me. 308); that a general demur

[Ed. Note.-For other cases, see Courts, Dec. rer cannot reach a defect in the prayer Dig. $ 202.*] (Barton v. Vanzant, 1 Mo. 192); and that the 2. COURTS (8202*) – PROBATE COURTS - APcourt will give judgment according to law, PEAL BY EXECUTOR OR ADMINISTRATOR. and not according to the prayer of the plain Under Rev. St. c. 65, § 34, providing that tiff (Snowden v. State, 8 Mo. 483, 487). The any person claiming under an heir at law shall defect which is the subject of the first ground ceedings in the probate court, including rights

have the same rights as the heir in all proof the special demurrer, being one of form, of appeal, an executor or administrator of a may be amended, R. S. C. 84, § 10. The pro- deceased heir at law has the same rights of posed amendment is allowable. See Mitchell appeal that the heir at law would have if live

ing. v. Chase, 87 Me. 172, 32 Atl. 867.

Ed. Note.-For other cases, see Courts, Dec. [3] Upon the second ground the demurrer Dig. $ 202.*)

Me.)

SPROWL v. RANDELL

81

Exceptions from Supreme Judicial Court, bate court is conferred by statute only, can Lincoln County.

extend no further than the statute provides, Petition by Benjamin E. Sprowl against and must be affirmatively alleged and es. Charles L. Randell for leave to appeal from tablished by the case presented. Abbott, Apa decree admitting to probate an instrument pellant, 97 Me. 278, 54 Atl. 755; Hayford v. as the will of Adelia E. Sprowl. Exceptions Bangor, 103 Me. 434, 438, 69 Atl. 688; Briby defendant to a refusal to dismiss the peti- ard v. Goodale, 86 Me. 100, 29 Atl. 946, 41 tion having been overruled, Fred W., Sprowl, Am. St. Rep. 526; Pettingill v. Pettingill, 60 as administrator of Benjamin E. Sprowl, fil- Me. 411, 419. In sections 28-33, c. 65, R. S., ed an appeal from the decree probating the is found no provision for the taking of an will, and defendant moves to dismiss the ap- appeal by an executor or administrator of a peal. Exceptions overruled.

person aggrieved, and R. S. C. 89, § 7, proArgued before SAVAGE, SPEAR, COR- viding for the prosecution and defense by NISH, BIRD, and HALEY, JJ.

executor or administrator of certain actions · Arthur S. Littlefield, for plaintiff. Rod-pending or commenced during the life of the ney I. Thompson and W. H. Miller, for de- testator or intestate, iş, in the case of apfendant.

peals, strictly limited to those which have

been made. A petition for leave to enter an BIRD, J. This cause has already been appeal, even if granted, cannot be held to be before this court upon exceptions to the ac- an appeal made or taken. In the case under tion of the supreme court of probate in consideration, the intestate, Benjamin E. overruling the motion of defendant to dis- Sprowl, was the person aggrieved, not his miss the petition of the present appellant's administrator. intestate for leave to enter an appeal from [2] Has the appellant the right which he the decree of the judge of probate of Lin- asserts under R. S. C. 65, § 34? This provicoln county admitting to probate the will sion was originally enacted as follows: "Any of Adelia E. Sprowl (Sproul) whose heir at person claiming under an heir at law shall law intestate was. 107 Me. 274, 78 Atl. 450. have the same rights in all proceedings in Pending the consideration of the exceptions probate courts, including rights of appeal, intestate died. The exceptions having been that the heir may have.” Pub. Laws 1881, overruled by this court, the appellant filedc. 90. The appellee apparently confines the his appeal and reasons of appeal in the pro- application of this provision to the heirs of bate court at its term held on the first Tues- an heir at law, but we think the construction day of December, 1910, returnable at the April too narrow. As the real estate of a determ, 1911, of the supreme court of probate ceased person descends or passes to his heirs for said county. In the appeal he states at law, so his personal assets descend or that appellant was duly appointed adminis- pass to his executor or administrator. Strout trator of the estate of Benjamin E. Sprowl, V. Lord, 103 Me. 410, 415, 69 Atl. 694; Hemlate of Waldoborough, deceased, and alleges menway v. Lynde, 79 Me. 299, 301, 9 Atl. that he as such administrator and as repre- 620. They vest immediately in the executor senting Benjamin E. Sprowl is aggrieved by or administrator (Dalton v. Dalton, 51 Me. the decree of the judge of probate allowing 170, 172, 173). And it has been held that the the will and appointing the appellee ex- administrator represents the person of his ecutor. Upon the entry of the appeal in the intestate in relation to his personal estate. supreme court of probate, the appellee mov. M'Vaughters v. Elder, 2 Brev. (S. C.) 307, ed its dismissal for the following reasons: 313. Such being the case, the administrator

(1) Because neither said appeal nor rea- is certainly as much one who claims under sons of appeal show any right of appeal, and the heir at law as an assignee of the heir are insufficient in law.

at law. Stilphen, Appellant, 100 Me. 146, 148, (2) Because neither said appeal nor rea- 60 Atl. 888. The interest of the deceased sons of appeal show that Fred W. Sprowl heir goes to his administrator, not to his has any right of appeal.

heirs. Storer v. Blake, 31 Me. 289. If, un(3) Because neither said appeal nor rea- der this provision, the heir (or his assignee) sons of appeal show that said appeal was of the heir at law alone may appeal, the seasonably taken.

administrator who is in possession of and The appellee states the question really responsible for all the goods and chattels, raised to be the construction of section 34 rights, and credits of his intestate is withof chapter 65 of the Revised Statutes. out remedy, if the heir or his assignee re

[1] The appellant claims that he has a fuses to act. As representatives of the same right of appeal under the general provi- estate, we should have the administrator sions found in R. S. C. 65, SS 28–33, and prosecuting an appeal made by the deceased chapter 89, § 7, and, if not, that such right heir and an heir prosecuting another which is certainly his by virtue of R. S. c. 65, § 34. the deceased had not made. If success at

We must conclude that appellant has no tended the latter, the fruits of the appeal right of appeal under the general provisions would immediately pass to the administrator above referred to, either alone or in connec- of the deceased heir, and not to his successtion with R. S. c. 89, § 7. The right of ap- ful heir—the appellant. The administrator peal from any decree or order of the pro-' is directly affected in his pecuniary interest,

81 A.-6

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