by praecipe filed (Rule III; section 12.) But no provision was ever made for entering a rule for judgment for want of a sufficient affidavit of defense by filing a praecipe, and we are advised by our efficient Prothonotary, whose experience extends over a long period of years, that the uniform practice has been to have such motions specially allowed by the court.

The Practice Act of 1915 does not alter this procedure. The provision in Section 17 that "plaintiff may take a rule for judgment for want of a sufficient affidavit of defense" read in connection with Section 23 of the same act, authorizing courts to make rules for the enforcement of the act, can only mean that plaintiff may take such rule in the manner prescribed by the rules of court or in accordance with the established practice. The provision cannot be read as making an "office rule" of that which was formerly a rule grantable only by the court.

Now, March 5, 1923, rule for judgment for want of a sufficient affidavit of defense is stricken off.

BLOSE v. LEVINE.

Practice, C. P.-Affidavit of Defense-Bald Denial.

Defendant's bald denial, in an affidavit of defense, is an admission of plaintiff's averments.

Having thus admitted the plaintiff's allegations, defendant cannot, in his affidavit, set up in defense another contract between himself and plaintiff as the only subsisting contract.

In the Court of Common Pleas of Lehigh County. No. 199 January Term, 1922. Ervin P. Blose and Norman J. Blose, trading as Blose Motor Company v. Louis Levine. Rule for Judgment for Want of a Sufficient Affidavit of Defense. Rule Absolute.

Julius M. Rapoport, for Plaintiff.
Fred G. W. Runk, for Defendant.

Reno, J., May 7, 1923. Paradoxical as it may seem, an averment that "defendant denies the first paragraph of plaintiff's statement of claim" is an admis

sion. It is a bald denial, and lacking the quality of specificity required by the Practice Act of 1915, is equivalent to an admission: Parry v. Lansford National Bank, 270 Pa. 556. It follows that defendant has admitted the existence of an oral contract, the furnishing of labor and material in pursuance thereof, and the correctness of the itemized statement attached to plaintiff's pleading. Having thus admitted sufficient to warrant the taking of judgment against him, his further averment that there is another contract between himself and plaintiff avails him nothing. If that is the fact, defendant should have specifically denied the contract alleged in the statement in the manner suggested by the Parry case and, in that connection, averred the contract which he claims is the only subsisting agreement between the parties. As it is, his defense is inconsistent and, therefore, not sufficient to prevent summary judgment.

Now, May 7, 1923, rule for judgment for want of a sufficient affidavit of defense absolute. The Prothonotary, upon praecipe of plaintiff, will enter judgment for plaintiff and against defendant for the amount of the claim.

ESTATE OF ELI S. HEINTZELMAN, DECEASED. Wills-Trustees-Commissions.

A will created two trusts of which the executor was trustee, the income of which was to be disbursed to life beneficiaries and after their death the principal to others. It fixed the compensation of the trustee at the "sum of two hundred dollars annually until my estate and the trusts submitted in his care are fully settled up."

Held, that the trustee should collect five per cent. from the income (it being a small sum) and the difference between that sum and two hundred dollars should be paid out of the principal.

The word "annually" fixes both the measure and time of payment.

In the Orphans' Court of Lehigh County. In re Triennial Account of Calvin B. Heintzelman, Trustee of Annie E. Ziegler, under the Will of Eli S. Heintzelman, deceased. Exceptions to Auditor's Report. Sustained in part.

Butz & Rupp, for Accountant.

James F. Henninger, for Exceptant.

Reno, J., May 7, 1923. The will creates two trusts of which the executor is trustee. As trustee he is obliged to retain and invest certain sums and to disburse the income thereof to designated beneficiaries for their lives and, after their deaths, to pay the principal to other legatees. The will fixes the compensation of the trustee at the "sum of two hundred dollars annually until my estate and the trusts submitted in his care are fully settled up." In his triennial account the trustee has charged his compensation against the income of the estate. To this the beneficiary for life of one of the trusts objects and the case comes to us upon her exceptions to the report of the auditor sustaining the charge of the accountant.

Our learned auditor, in a well considered report in which he carefully reviews the pertinent authorities upon the subject, has determined that the law generally requires that trustee's commissions be charged against income and that only in exceptional cases may the corpus be diminished before final distribution by the payment of commissions. We do not question the validity of this conclusion, but we cannot follow his further conclusion that the instant case is not an exceptional case.

The commission of the trustee is to cover all his services. That is, it provides compensation for the labor, extending over a period of years, of preserving the funds, of investing them from time to time, of collecting the income thereof, of discharging the taxes and other obligations that accrue against it, of paying the income to the beneficiaries and, finally, after the death of the life tenants, of distributing the principal to the ultimate legatees. Thus, the annual commission covers services concerning the principal as well as the income. Manifestly, it is not equitable that the income bear the entire expense of arrangement and thereby free the principal from all expense. Nor would this condition obtain if the testator had not fixed an annual compensation for the trustee. But for that, the trustee would be obliged to deduct the usual commission upon income as and when income was paid to the beneficiaries and postpone collection of commissions upon the principal to the final distribution thereof. Unquestionably, the word "annually" fixes both the measure and time of payment: 3 Corpus Juris 198; so

that the trustee is not required to await the final settlement of the trust for his commissions. But that word does not evince an intention to charge the annual income with the total expense of preserving and administering the funds. It is far more reasonable to suppose that the testator intended that the sum of two hundred dollars should be allocated between income and principal so that each of them would bear their fair proportion of the expense of administration. His intention in respect to this question not appearing we are permitted to decide it according to equitable principles: Cf. McCourt's Estate, 276 Pa. 274, 276. The effect of this conclusion is to diminish the corpus of the estate before the period of final distribution, but this being done at the instance of the life tenant and for her relief the only tenable objection to the diminution of the corpus is removed. Moreover, this is an exceptional case created by the peculiarly exceptional provision stipulating annual payment of commissions; and this can be interpreted only to require that, if the income is not sufficiently large to absorb the annual commissions at the rate usually allowed for collecting and disbursing income, the principal must respond pro tanto.

If further reasons were required to fortify our conclusion they could readily be found in the fact that the exceptant is a child of the testator while the ultimate legatees are either her children or collateral heirs. Certainly, it is not likely that testator intended that his daughter should pay the entire cost of administering the trust fund out of her income of approximately six hundred dollars a year and permit the final takers of his bounty to enjoy the principal without obligation to contribute to that cost. The first taker, especially if he is an heir, has always been a prime favorite of the law and, unless restrained by the testator's expressed intention, courts will lend a ready ear to him in preference to more remote relatives.

Accordingly, we think that the trustee should collect five per cent. from the income and the difference between that sum and two hundred dollars should be paid out of the principal.

Now, May 7, 1923, the first exception is sustained; the second exception is dismissed; Counsel may, upon

notice, present form of final schedule of distribution in accordance herewith.

JONES v. BORGER.

Husband and Wife-Sheriff's Interpleader-Evidence-Practice, C. P.-New Trial.

In a sheriff's interpleader, the sole question of fact being whether defendant was a creditor of plaintiff's husband at the time when bills of sale were executed for the goods, and the testimony being oral, the credibility of the witnesses, even though uncontradicted, is for the jury. When it can be assumed that, on account of the nature of the pleadings, the defendant was surprised at the trial, and in consequence failed to produce the best evidence, the plaintiff's case being essentially weak, a new trial will be granted.

In the Court of Common Pleas of Lehigh County. No. 313 October Term, 1921. Mary Jones v. Charles M. Borger. Rules for Judgment, n. o. v. and New TrialNew Trial granted.

(See 9 Lehigh C. L. J. 404.)

Julius M. Rapoport, for Plaintiff.
Edgar C. Nagle, for Defendant.

Reno, J., April 2, 1923. Defendant, (who was the execution-creditor), in a feigned issue in interpleader, undertook to show that the personal property claimed by plamtiff, (wife of the execution-debtor) was fraudulently transferred to her. Title to the property having been made to her by a bill of sale unaccompanied by a change of manual possession of the property it was manifestly void as against creditors. The fact that there was no change of possession was conceded and, therefore, the sole question of fact was whether defendant was a creditor of plaintiff's husband at the time when the bills of sale were executed. The testimony upon this point being oral the credibility of the witness who testified to it was for the jury, even though it was uncontradicted: Reel v. Elder, 62 Pa. 308; McGlinn v. Dervin, 260 Pa. 417; Trexler v. Africa, 33 Pa. Super. Ct. 395. In these circumstances, a point for binding instructions for defendant could not have been properly granted and hence judg ment n. o. v. for him cannot now be entered: Shannon v.