was overruled by the court, and judgment | ering a case in which the original bond was was entered upon the verdict. canceled and surrendered, and a new security Argued before FELL, C. J., and BROWN, taken, with the consent of all interested parSTEWART, and MOSCHZIS- ties and the approval of the court. Nothing done in the present case was sufficient to relieve the surety on the original bond, which is still in full force and effect, from the

[2] In the present case the bonding com- SHELLEY'S CASE. pany became surety on the bond of the guard-tain real estate to testator's son for life and Under a will devising the proceeds of cerian in the penal sum of $25,000, and this directing that after his death it should go to is the bond upon which suit was brought. his heirs unincumbered by any debts of his exThe bond as executed was never surrendered cept for developing mines, and providing that, "If my son * * should die without heirs, or canceled by the court, nor changed by I leave my sister * the one-fourth of the parties in interest. The bond itself re- my estate the other three-fourths to mains just the same as it was at the time it the son took an estate was signed by the surety. The bonding company never made any application to the court, either to have the bond released or reduced in amount, nor did it ask at any time that the guardian be required to give additional security. Under these facts it is difficult to

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

words of purchase. To those words the law attaches a definite meaning. When used by a testator, the law presumes that he used them in their legal sense; that he intended not individuals, but quantity of estate, and descent. Whenever they are employed, therefore, the burden is thrown upon him who contends that they are words of purchase, to rebut that presumption, and to show that they were used in the particular grant or devise to designate persons. The intent not to use the words in their legal sense must be unequivocal, and must be devise. Doebler's Appeal, 64 Pa. 9; Guthrie's Appeal, 37 Pa. 9; Graham v. Abbott, 208 Pa. 68, 57 Atl. 178; Arnold v. Muhlenberg College, 227 Pa. 321, 76 Atl. 30; Hastings v. Engle, 217 Pa. 419, 66 Atl. 761; Shapley v. Diehl, 203 Pa. 566, 53 Atl. 374; Roth v. Cohn, 236 Pa. 534, 84 Atl. 964. There is nothing in this will to warrant the construction that it was the intention of the testator that those who were to take the remainder were to take otherwise than as heirs of the body of the life tenant. Under all our numerous authorities the life estate of Francis was, by force of the rule in Shelley's Case, enlarged into an estate entail, which, by operation of the act of April 27, 1855 (P. L. 368), was converted into a fee-simple estate. This was the conclusion reached by the court below, and the specifications of error must be overruled.

fee to be presently enjoyed, and following these devises come the clauses of the will which are material to the consideration of this case, being the only clauses of the will making disposition of the Cambria county lands after the death or remarriage of Mary A. J. Christy, the widow. This devise was in the following words: 'He shall have the two-thirds of all my lands in Gallitzin Township, Cambria Co., the income of rent liens during his mother's widowhood. After he shall have all the proceeds during his life time. After his death it shall go to his heirs free and unincumbered by any debts of his ex-gathered from the language of the grant or cept for developing mines, etc.- If my son Francis should die without heirs I leave my sister Sarah Inlow the one-fourth of my estate (her husband nothing). The other three-fourths to my brothers and their heirs, except Josiah's daughter Elizabeth shall have no interest. The heirs of Mrs. Agnes Burk, decs. and Mrs. Lucy Ann Riffle shall not inherit any part of my estate.' This will was executed and the testator died long prior to the approval of the act of July 9, 1897 (P. L. 213), and that statute can have no effect upon its construction. Mary A. J. Christy, the widow of testator, died on September 26, 1905. Francis M. Christy, the son, married during the lifetime of the widow, and, having survived her, died on January 30, 1910, without issue. He, by his last will and testament, since duly probated, devised the lands in question to his widow, Mary R. Christy, the appellee. The fund for distribution has accrued as royalties from the mining operations conducted since the death of Francis M. Christy. If Francis M. Christy took an estate in fee in the lands, under the will of his father, the appellee is entitled to receive the royalties in question; if, on the contrary, he took but a life estate, then the appellants are entitled to take, under the devise over to the sister and brothers of testator.

"The decree of the court below is affirmed and the appeal dismissed at cost of the appellants." Before FELL, C. J., and BROWN, POTTER, ELKIN, and STEWART, JJ.

D. E. Dufton, R. Edgar Leahey, and Albert W. Stenger, all of Johnstown, for ap pellants. W. L. Pascoe, of Tyrone, for appellee.

PER CURIAM. The decree of the Superior Court is affirmed at the cost of the appellant on the opinion of Judge Porter.

[2] "Francis M. Christy having not only married but outlived the widow of the testator, the contingency upon which the widow was to take, during her widowhood, the share of the estate devised to Francis never happened; that devise fell. We have therefore only to 'consider the clauses of the will disposing of the remainder after the termination of the particular estate which testator created in order to make provision for his widow during her widowhood. There can be no doubt, under the provisions of the will, that the intention of the testator was that the land should go, after the death of the (Supreme Court of Pennsylvania. widow, to Francis during his lifetime, and that the remainder, after the life estate of Francis, should go to his heirs free and unincumbered by any debts of his except for developing mines.' The devise over, 'If my son Francis should die without heirs,' is to the sister and brothers of the testator and their heirs. This language clearly implies that he did not intend his sister and brothers, or their heirs, to take, unless those whom he calls the heirs of his son should fail, and as the devise over, after failure of heirs of his son, is to his own sister and brothers and their heirs, he must necessarily have meant a class of heirs amongst whom

(245 Pa. 585) SIMON ▼. MAJESTIC APARTMENT HOUSE CO.

1914.)

May 22,

MORTGAGES ( 465%*)-JUDGMENT-PRIORI-
TIES-DETERMINATION OF TEMPORARY IN-
JUNCTION-APPEAL.

The granting, in a mortgage foreclosure suit, of a preliminary injunction to restrain the enforcement of judgments against mortgaged property, pending the determination of the question of priority between the judgments and mortgage, could not be disturbed on appeal, where it appeared that the judgment creditor was deprived of none of his rights, and was fully protected therein by an injunction bond.

[Ed. Note. For other cases, see Mortgages, Dec. Dig. § 4652.*]

Appeal from Court of Common Pleas, Phil

his own sister and brothers could not have been
enumerated, for otherwise he would be making a
gift over which could not take effect until after
the extinction of the persons to whom it would
have been given. This being so, it is well set-adelphia County.
tled that the proper construction of the will is
to take the word 'heirs' to mean heirs of the
body.' Doebler's Appeal, 64 Pa. 9; Bassett
v. Hawk, 118 Pa. 91, 11 Atl. 802. The lan-
guage of the testator can only be construed to
mean that he intended to vest a life estate in
Francis, and that the remainder should go to
the heirs of Francis; that is, the heirs of his
body. The words 'heirs' or 'heirs of the body,
are words of limitation of the estate, and not

Bill by the Real Estate Trust Company of Philadelphia, trustee, against C. Herbert Simon and another, to foreclose a corporation mortgage and to restrain execution under judgments alleged to be subsequent to the mortgage. From a decree awarding a preAfliminary injunction, Simon appeals. firmed.

At the hearing of the motion it appeared that the Majestic Apartment House Company was incorporated for the purpose of purchasing land and building thereon an apartment house and hotel and conducting a general apartment house and hotel business.

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.

are, restrained from proceeding further to execution under the writ of fieri facias issued under the judgment in the cause entitled "C. Herbert Simon v. Majestic Apartment House Co., C. 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 in the hands of such sheriff as unreturned until the final disposition of the fund realized by the sale of said property so levied upon at the hands. of the Real Estate Trust Company of Philadelphia, trustee, etc., under its above-entitled foreclosure bill, as set forth in said bill, such lien upon said property so levied upon as the 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 proceeds of the property levied upon under said writ to be earmarked in the hands of such trustee, 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 holder of all the bonds of the Majestic Apartment House Company, secured by the mortgage to the 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 the sale by such trustee as aforesaid, under the decree of foreclosure, of such property so levied upon, a sum of at least $30,000, and upon entering the usual injunction bond in the sum of $12,000. on

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, 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

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 Apart ment 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.

An affidavit to the cause of action in foreign judgment proceedings was insufficient, where it was not positive but concluded with the words "all of which facts are true to the best of deponent's knowledge and belief."

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

Appeal from Court of Common Pleas, Erie County.

(Pa

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.)

1. WILLS (§ 55*)-ISSUE DEVISAVIT VEL NON - TESTAMENTARY CAPACITY — SUFFICIENCY OF EVIDENCE.

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

Rule by D. McLennan against the Public [Ed. Note. For other cases, see Wills, Cent. Utilities Construction Company, a corpora- Dig. §§ 137-158, 161; Dec. Dig. § 55.*1 tion, to show cause why a foreign attach- 2. WILLS (8 111*)-EXECUTION-SUFFICIENCY. ment should not be dissolved. From a judg-weakness and being confined to his bed and not Where testator, on ment making the rule absolute, plaintiff ap- having a pen with which he was familiar, was account of physical peals. Affirmed. unable to write his name legibly, and at his which the will was witnessed by the attorney attorney's suggestion made his mark, after and two other witnesses, the execution was sufficient.

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 capias, common bail would be ordered. In 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

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 267-275; Dec. Dig. 8' 111.*1

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

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

proved and admitted to probate by the register The will of Amand Hersperger was regularly of Erie county, and from that decree one of peal to this court and asked for an issue. The the sons of the said Hersperger has brought apprincipal question raised is as to the testamen tary capacity of Amand Hersperger at the time of the execution of the alleged will. the testimony offered upon that question, and [1] We have carefully read and considered all we are clearly satisfied that he was competent to make the will in question. There is a presumption of competency, which is supported by torney who prepared the will, and who was well the clear and satisfactory evidence of the atacquainted 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 conditioa 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 each day during his sickness, and also by the we recall the testimony, twice testimony of the attending physician, Dr. Weier twice a day during such sickness. bel, who saw and conversed with Mr. HerspergThese three witnesses are entirely disinterested. They are corroborated, however, by the testator's two last sickness, but who are of course interested daughters, who attended upon him during his in the result of this case.

And now, July 14, 1913, the rule for an issue in the above case be and the same is hereby refused, and the appeal of Joseph Hersperger from the probate of said will by the register in above case is hereby dismissed, at his costs.

Mr. Hersperger was taken sick on Sunday | clearly satisfied that an issue should not be ormorning, with what is called senile pneumonia, dered. and died on Thursday morning. On the advice of Father Bender, he sent for Mr. Curtze on Monday and then gave details as to the prep aration of the will. Mr. Curtze returned with the will on Tuesday, and it was then executed. Now all the evidence for proponents is to the effect that, up until Wednesday afternoon or evening, Mr. Hersperger was in his right mind, and that thereafter he became delirious and died, as above stated, on Thursday morning.

The court refused the rule for an issue devisa vit vel non and dismissed appeal from the probate of the will by the register. Joseph Hersperger appealed.

Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, and ELKIN, JJ. Charles A. Mertens and P. D. Hyner, both of Erie, for appellant. C. L. Baker, of Erie, for appellees.

PER CURIAM. The order appealed from is affirmed on the opinion of Judge Walling.

On behalf of the contestants we have the testimony of a number of Mr. Hersperger's children and grandchildren to the effect that they saw him on different days during his last sickness, beginning, perhaps, with Sunday evening, and that he was delirious and irrational and unfit to transact any business. They reached this conclusion largely from the fact that they were in the room with him and he did not converse with them. Some say he failed to recognize them. Some say he raved and showed other evidences of delirium; but, from all the evidence in the case, we are satisfied that their testimony is not reliable. They are all interested, directly or indirectly, in having the will set aside. Their opportunities of knowing Mr. Hersperger's mental condition are not very satisfactory. Mr. Hersperger was about 80 years (Supreme of age, sick in bed, and undoubtedly suffering more or less from the disease, and the witnesses who only saw him casually might easily mistake his moanings for ravings, especially as they had very little, if any, talk with him.

It is a matter of common experience that men in sickness do not all act alike. Some sick men do not wish to talk or be talked to, and Mr. Hersperger's disinclination to talk with some of his children and grandchildren during his sickness may be more the result of an inclination not to talk than evidence of mental unsoundness. Some importance is attached to his alleged repeated statements that he wished to get out of bed. Perhaps he did, and, in any event, too much importance should not be attached to what he said as to that.

(245 Pa. 580)

In re DOWNER'S ESTATE.
Appeal of JOHNSON,
Court of Pennsylvania.
1914.)

May 22,

CONVERSION (§ 16*)-DIRECTIONS IN WILL.
A will which, after a specific bequest, ap-
pointed an executor "with power to sell as he
may think best any realty of which I may die
seized, to execute deeds therefor, and to make
distribution of the proceeds thereof as personal-
ty, and of all personalty of which I may die
possessed, to those legally entitled thereto ac-
cording to the intestate laws of the state of
Pennsylvania," worked an equitable conversion
into personalty of all of testatrix's realty.

[Ed. Note.-For other cases, see Conversion,
Cent. Dig. §§ 38-40, 42, 43; Dec. Dig. § 16.*1
Appeal from Orphans' Court, Fayette
County.

Adjudication of the Estate of Caroline A. Downer, deceased. From a decree dismissing exceptions to the adjudication, David D. Johnson appeals. Affirmed.

From the record it appeared that Caroline A. Downer died, leaving the following will: "I, Caroline A. Downer, of Uniontown, Fayette county, Pennsylvania, hereby make my last will and testament: First: I direct my ex

As to whether or not a man is delirious is a matter of opinion, but, supposing all the witnesses on both sides are entirely candid, then it appears that notwithstanding the show of delirium, as testified to by the contestants' witnesses, he still was of sound mind, had a clear conception of his property, how he wished to dispose of it, and was fully competent to make and did make a valid will. Having considered all the evidence, it is so strongly in favor of his competency that a verdict against the will could not be sustained, and an issue should not be awarded. [2] On account of physical weakness, of be-ecutor, hereinafter named, securely to invest the sum of fifteen hundred ($1500.00) dollars out ing in bed, and of not having a pen with which of my estate, the interest thereof to be used to he was familiar, the testator seemed to be un- keep in repair the family cemetery lot in Oak able to write his name legibly, and therefore, at Grove Cemetery, Uniontown, Pennsylvania, and the suggestion of the attorney, made his mark. to keep in proper repair the tomb stones thèreThe will was witnessed by the attorney and by on. Second: I appoint David D. Johnson of two other citizens who speak the German lan- Uniontown, Pennsylvania, executor hereof, withguage, all three of whom made due proof of the out bond, and with power to sell as he may execution of the will before the register. When think best any realty of which I may die seized, their testimony was taken on this rule, the two to execute deeds therefor, and to make distriwitnesses, aside from the attorney, failed to bution of the proceeds thereof as personalty, remember all of the matters necessary to a and of all personalty of which I may die posproper execution of the will, but as to that the sessed, to those legally entitled thereto accordtestimony of the attorney is full and satisfacto- ing to the intestate laws of the state of Pennry, and there is other testimony tending to sus-sylvania. In witness whereof, I have hereunto tain the testimony of the subscribing witnesses, set my hand and seal, this 15th day of January, and we believe that, taking all the testimony, 1910, it clearly shows a due execution of the will; and as to that we believe the case is ruled in Testatrix left surviving her 9 first cousins favor of the proponents by the case of Rice's of the blood of her father and 15 other Estate, 173 Pa. 298, 33 Atl. 1100. There is first cousins of the blood of her mother. The no evidence whatever of undue influence or of any improper conduct on behalf of the principal controversy in this case arose over the disbeneficiaries, and, on the whole case, we are tribution of the net proceeds of the sale of *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Caroline A. Downeer. [Seal.]"