Trexler, P. J., July 1, 1912. Daniel S. German, by will dated the 20th day of October, 1895, provided among other things, that his wife Amanda Rebecca should have the use of certain personal property, and various rights and privileges on the farm. These privileges were to be enjoyed during her natural life. The executor was also to pay her a sum of money semi-annually.

In the 8th clause he orders and directs that after his death his executor shall pay the sum of $100 to the Reformed and Lutheran congregation in Heidelberg Township, and in the 9th clause he directs his executor after his death to sell and convert into money all his remaining goods not reserved as theretofore stated.

In the 11th clause he provides "That at any time by consent of my widow by joining in the conveyance my executor in trust shall have the power and authority to sell at private or public sale all or any part of my real estate during the natural life of my wife, but the two hundred and fifty dollars annual bequest to my wife shall remain secured on my real estate."

In the 13th clause he directs that as soon as practical after the death of his wife his executor shall sell the rest, residue, reversion and remainder of his estate.

He appointed his nephew Edwin F. German executor. On February 20, 1904, he executed a codicil to the will, and the third item of this codicil is the one that we are called upon to construe. It reads as follows: "

"I order and direct, after my death, that my nephew, Edwin F. German, shall have the option to take all my real estate for the sum of Eight Thousand Dollars, if he so desires, subject however, to all conditions named in my foregoing will."

The widow, Amanda Rebecca German, died October 19, 1910. The executor did not accept tne real estate during the life time of the widow. For a period of over five years he managed the farm. After the death of the widow, on the 3rd of April, 1911, he presented his petition unde. the Act of 5th of March, 1903, P. L. 10, asking the Court to adjudge the real estate to him at the valuation stated in the will, and without notice to other heirs and legatees in said estate an order was made in compliance with the petition. The question is now before the Court upon a petition to open said decree.

When was Edwin German, the executor, required to exercise the option to take the real estate of decedent at Eight Thousand Dollars? Did the privilege to do so continue until the death of the widow, or should it be exercised within a reasonable time after the death of the testator? I have come to the conclusion that taking the entire will and codicil and construing it from its four corners, the intention of the testator was that the option should be exercised in a reasonable time after his death.

The language employed "Subject, however, to all conditions named in my foregoing will" would indicate that the executor was to take the real estate subject to the rights and privileges vested in the widow. Whilst the phrase "After my death" may have no particular meaning ordinarily because all wills take effect after the testator's death, still the ninth clause of the will indicates that where the executor is directed to sell and convert into money after the testator's death all the remaining goods the testator used the words as indicating some act to be done within a reasonable time after his death.

The objection raised that the period of distribution of the estate in the 13th paragraph of the will is stated as following the death of his wife may be answered by reference to the 11th, where the sale of the real estate in whole or part during the life of the widow by her consent is authorized. In the 13th paragraph he provides that the executor shall sell after the death of his wife, and it is reasonable to infer that if he wished to have this option exercised after the death of the widow he would have inserted the same words. It may be noted that the care the testator evinces for the well being of his wife could have been conserved as well after the sale of the farm as during the time when the executor had it in charge, because the land is subject to the privileges accorded to the wife. I therefore conclude that the rule granted must be made absolute.

Now July 1, 1912, rule absolute.

IN RE ESTATE OF LOVINA METZGAR, DECEASED. Wills-Register-Practice an Later Will Being Produced Than the One Probated.

The proper practice, where, after probate of a will, a later will is produced, is for the Orphans' Court to open the decree admitting to probate the earlier will, and direct that the latter will be produced before the Register of Wills to be admitted to probate upon due proof. The Register of Wills has no power of his own accord to revoke his probate of the first will.

Appeal from

In the Orphans' Court of Lehigh County. In re Estate of Lovina Metzgar, deceased. Decision of Register of Wills.

H. A Cyphers, for first will probated.

C. W. Kaeppel, for proponent of second will.

Trexler, P. J., July 6, 1912. A will of Lovina Metzgar, dated May 15, 1900, was admitted to probate by the Register of Wills February 28, 1912. On the 6th of March, 1912, a paper purporting to be the last will and testament of Lovina Metzgar dated November 24, 1908, was presented to the Register of Wills and probate refused.

The Register having admitted the first will, could not adinit the second. He had no power to revoke his probate of the first will. With the probate of the first will his judicial powers ceased. Matthews vs. Diddell, 8 Pa. Sup. Ct. 112; Beatty's Est., 193 Pa. 304; McAndrew's Estate, 206 Pa. 366; Miller vs. Henderson, 212 Pa. 263.

Of course if both wills were the sound testamentary act of the testatrix, the latter must be admitted to probate The testimony before the Court taken by the exariner, as is the custom, (see Rule of Court C. P. VI, Section 3) makes out a prima facie case for the second will as will appear by the testimony of the subscribing witnesses. It bears a later date and is clearly testamentary.

We are not however in a position to decide between the two wills. The proper course as laid down in Cawley's Estate, 162 Pa. 520, and in the late case of Crawford vs. Schooley, 217 Pa. 429 (434) is for the Orphans' Court to open the decree admitting to probate the earlier will and direct that the appellants produce before the Regis

ter the paper which they claimed to be a later will and proceed to make proof of its execution and validity in the usual manner.

Now July 6, 1912, the decree admitting to probate the paper purporting to be the last will and testament of Lovina Metzgar, deceased, dated 15th of May, 1900, is opened and the contestants are directed to produce a certain paper dated November 24, 1908, which they allege is the last will and testament of said Lovina Metzgar before the Register of Wills, and make proof of its execution and validity to the end that it may be admitted to probate as the last will and testament of Lovina Metzgar if the Register so decides.

GOTTSCHALL vs. KAPP ET AL.

Bond on Appeal-Amount Less Than Required by LawCredit for Costs.

The sureties are liable on bond of defendant given on appeal to Superior Court to the full amount of the bond, even though that is less than the amount required by law; and they are not entitled to any credit for the amount of the costs paid by defendant, these not having been paid by the sureties on account of their liability.

In the Court of Common Pleas of Lehigh County. A. H. Gottschall vs. Samuel S. Kapp, William G. Walp and A. A. Hertzog. No. 59 April Term, 1912. Assumpsit on Bond given on Appeal.

W. L. Gillette and M. C. Henninger, for Plaintiff.
Frank Jacobs and Edward Harvey, for Kapp.
H. A. Cyphers, for Walp.

R. J. Butz, for Hertzog.

Trexler, P. J., June 22, 1910. Judgment was entered in favor of the plaintiff against Samuel S. Kapp February 18, 1910, for $1050. On March 10, 1910, defendant appealed to the Superior Court and on April 10, 1910, entered a bond in appeal with William G. Walp and A. A. Hertzog sureties for $500. The condition of the bond is as follows: "Upon this condition, that if the said appellant shall prosecute the appeal with effect and abide the order or decree of the appellate court, and pay all costs

and damages awarded by the appellate court or legally chargeable against said appellant and pay all damages for injuries suffered by appellee from the time of the decree entered and all mesne profits accruing after judgment, then the above obligation to be void or else to remain in full force and virtue."

The judgment having been affirmed (47 Pa. Sup. Ct. 102) suit was brought on the bond. Affidavits of defense were filed, in which the defense is set up that the bond was given for the payment of costs only and the costs having been paid, the condition of the bond was satisfied. The matter is before me on a rule for judgment for want of a sufficient affiidavit of defense.

The bond was not given in compliance with the act of assembly regulating the practise on appeals approved May 19, 1897, P. L. 67. It was not given in double the amount of the judgment (Sect. 6), but in other respects the bond was in substantial compliance with the act.

Why the bond was given in less than half the amount of the judgment, or whether the amount was fixed by the parties, or by the Prothonotary or clerk as required by Section 5 of the above act we need not inquire.

We are only concerned about the written obligation in which the defendants entered. This presents no difficulty. The language is plain. They are to pay all costs and damages awarded by the appellate court, the liability of the sureties being of course limited to the amount of the bond. If there was any wrong done in entering the bond for a lesser amount than required by law, the plaintiff should not suffer, nor should the defendants be allowed to profit by their own mistake.

This position is abundantly supported by a number of authorities, and I will only refer to the following: Clement vs. Courtright, 9 Pa. Sup. Ct., 45. Com. vs. Clifsham, 16 Sup. Ct. 50. Bowditch vs. Gourley, 24 Sup. Ct. 342. Com. vs. Harvey, 51 P. L. J. 380.

Counsel for the sureties have requested that should my decision be adverse to them, they should be allowed credit for the amount of the costs, $150.70, which appears by the record to have been paid. The only credit that could be allowed would be such sum or sums as were paid by the sureties on account of their liability on the bond, and in relief of their obligation. The defendant