of the proposed road is situated: Kennedy Township Road, 50 Id., 619. It will be observed that the petition does not fix the termini of the proposed road by reference to the interesting roads of that road upon which the termini are located, but that the report states them with mathematical precision. Hence we are confronted with the question whether the defect in the petition is cured by the report Before the passage of the Act of 1909, it was sufficient to describe the termini with reasonable certainty: Lower Merion Township Road: 58 Pa. 66; O'Hara Township Road: 152 Pa. 319. The designation of a point "at" or "at or near" an object, as for instance, a spring, a tree, a barn, a house, the dividing line between lands, the intersection of roads, or "upon" the land of an owner, was, prior to 1909, held to be reasonably definite: Kennedy Township Road, 40 Pa. Superior Ct. R., 70. The designation of the termini, therefore, would have satisfied the requirements of the law prior to 1909. The purpose of the Act being to provide the State Highway Department with information whereby it may show that its "complete survey of all the roads of the state" those "roads opened or vacated since the surveys were made" and that information being supplied to the department through the certified copy of the report with the accompanying draft, as provided for in section 2 of the act of 1909, and not by the petition, the purpose of the legislation would seem to be entirely subserved if the distance of the termini from the intersecting road is fixed by the report. It is from the report that this information is gleaned for no provision is made for certifying the petition to the department. This construction has not been adopted without consideration of the first section of the act which expressly provides that the petition shall fix definitely the points nor without consideration of those cases which hold that the provisions of the act are mandatory: Kennedy Township Road, supra; Portage Township Road, 50 Pa. Super. Ct. R., 626; Fayette Township Road, 20 District Reports, 171; East Hempfield Township Road, 27 Id., 41; Salisbury Township Road, 19 Id., 1120, S. C. 3 Lehigh County Law Journal, 371. But in none of these cases does it appear that the report supplied the information which the petition lacked. It is fair to believe that had the reports contained that information the proceed

ings would not have been set aside. At least, the Roaring Brook Township Road case, (supra) recognizes that "a reference to the plan removes any doubt as to the identity of the road" and that a substantial compliance with the provisions of the act satisfies the purpose of its enactment. Cf. Sewickly Township Road, 23 Pa. Superior Ct. R., 170, where a grave defect of the petition was held to be cured by the report and draft. In any event our construction follows the intention of the makers, which intention being set forth in the preamble to the act, should be followed with judgment and discretion even though the construction adopted may seem contrary to the letter of the act: Big Black Creek Improvement Co. v. Commonwealth, 94 Pa. 450; Turbett Township v. Port Royal Borough, 33 Pa. Super. Ct. R., 520. The literal construction of a statute has, in general, but a prima facie preference: Ritter v. Wray, 45 Pa. Superior Ct. R., 440; and the object being ascertainable will be construed with reference to the object rather than in accord with the letter; Commonwealth v. Weber, 67 Pa. Super. Ct. R., 497.

The third exception is that the road is unnecessary. Without undertaking to decide now whether the finding of the viewers as to the necessity of the road is subject to review it is sufficient to state, conceding that such power is confined to us, that we are not convinced by the depositions that the road is unnecessary. Besides, a personal inspection has persuaded us that there is a great, if not an absolute, necessity for the road.

The fourth exception is disposed of by what we have said concerning the second exception.

We are obliged to sustain the fifth exception. Perhaps, it is true, as alleged in the exception, that not all improvements along the line of the proposed road are noted upon the draft or the report. The act of June 13, 1836 (section 3; supra) requires that the viewers shall "annex a plot or draft" to their report "noting briefly the improvements through which it may pass." It will be observed that the law does not require that it should be mentioned, either in the report or on the draft, that there are no improvements: O'Hara Township Road, 152 Pa. 319; and the omission to note improvements will be interpreted to mean that there are no improvements; Palmer Township Road, 109 Pa. 274; Sterrett Township

Road, 114 Pa. 627. But when the report or the depositions taken upon the exceptions disclose that there are unnoted improvements the court must refuse to confirm the report: O'Hara Township Road, 159 Pa. 72. It appears from the depositions that there are "improvements of the Miller boys on the South" side of the proposed road, which is said to be shown on the draft and is evidently the structure shown thereon. It is also said that the land along the road is arable farm land, cleared, except some underbrush along the fence of the Rauch and Miller properties. Fences, buildings and clearings upon land inclosed by fences are improvements: Upper Darby Township Road, 15 Pa. Superior Ct. R., 652; Quemahoning Township Road, 27 Id., 150; and the report and draft should note these. We are not now deciding that there are improvements which have not been noted. All that we decide is that the depositions tend to prove the existence of unnoted improvements which, if they do exist, should be noted. Following the practice in Springdale Township Road, 91 Pa. 260, we shall frame our order so that, if the exceptant insists, the report and draft may be amended by the viewers in this respect.

The sixth exception alleges that the report does not note all the owners of land adjacent to the route. The proof is that all owners are shown upon the draft except C. P. Oswald who owns a small parcel of land abutting on the vacated road. Our rules require notice only "to the owners or occupants of the land along the route of the proposed road": Rules of Court, XI; paragraph 2. This, of course, refers only to the opening of a new road and ex proprio vigore, does not apply to the vacation of existing roads. But the vacation of a road, unlike the opening, is addressed to the discretion of the court; Newville Road, 8 Watts, 172; Abington Road, 3 District Reports, 226; and, whether required or not by the original acts, we would not, especially since the act of May 28, 1913 (P. L. 368) which permits the recovery of damages for the vacation of township roads, confirm a report vacating a street of which an abutting owner had no notice. Cf. South Abington Township Road, 109 Pa. 118. But where the abutting owner is a petitioner for the vacation as here, there is no need for personal notice and none will be required.

The seventh exception is without merit and requires no discussion. There is ample proof of the posting of a notice of the view and of the service thereof upon the owners of the property through which the proposed road is to be opened.

The eighth exception is that "the designation of the road in the report does not correspond with that in the petition and notice of view." But the proof is that the petition and the report describe exactly the same road although in different terms, the report being more specific and definite than the petition.

The ninth exception complains of the omission to notify the county commissioners of the view. The opening of roads in Lehigh County is governed by local acts. (See list of acts in Wagner v. Salisbury Township, 132 Pa. 636.) The damages are payable by the township in which the road is opened. Hence the county commissioners are not parties to the proceeding and notices of views are not required.

The tenth exception was not pressed at the argument and need not be discussed.

Now, May 15, 1922, reserving to the exceptant the right within twenty days from the date of service of a copy of this order upon him by the Clerk of the Quarter Sessions to move for a reference of the report of the viewers back for amendment by noting improvements, the exceptions are dismissed.

peal.

ESTATE OF PHILIP NADIG.

Will-Appeal From Probate-Due Diligence-Quashing Ap

While it is within the power of the court to quash an appeal from the probate of a will, if not prosecuted diligently, thus delaying the settlement of the estate, yet, where the delay has been due to proper causes, a rule to quash will be discharged.

In the Orphans' Court of Lehigh County. In re Estate of Philip Nadig, deceased. Probate of Will. Appeal therefrom. Rule to Quash Appeal.

Dewalt & Heydt and Asher Seip, for Appellants.
Edwin K. Kline, Contra.

Reno, J., June 19, 1922. On May 28, 1921, the Register of Wills admitted the will of decedent to probate and from his action an appeal was certified to the Orphans' Court on August 19, 1921. Beyond filing the appeal and the bond provided for by the act of June 7, 1917 (Section 20, P. L. 14) the contestants have done nothing. That is, they have not filed a petition for citation and have not performed other acts necessary for securing the decision of the court upon the validity of the will. On February 20, 1922, the executor procured a rule requiring contestants to show cause why the appeal should not be quashed because of their failure to prosecute the appeal diligently and alleged that the executor was being delayed and embarrassed in the settlement of the estate by the pendency of the contest. In view of that section of the act of 1917 (supra; Section 21; clause b) which provides that an appeal from the decree of the register shall not suspend the power or prejudice the acts of an executor we are unable to understand how a delay in prosecuting the appeal can embarrass the executor in liquidating the assets of the estate, although it might possibly postpone the distribution of the fund.

But, certainly, it is within our power to quash an appeal whenever, in our judgment, it is not being prosecuted diligently and with effect: Hoopes' Estate, 23 District Reports, 249. This power we would not hesitate to employ if we were convinced that the settlement of the estate was being delaying by acts which evidenced lack of good faith in the institution or the prosecution of the proceeding. However, we are pursuaded, both by the answer and by the argument of learned counsel for contestants, that the delay has been due to proper causes, e. g. the necessity for interviewing a large number of witnesses who are scattered over a wide territory and the pendency of offers of compromise. It appears, too, that counsel for contestants have been engaged in a large number of important cases which have allowed little time to devote to this case. Moreover, we have their assurance that after the summer vacation the case will be put into position for speedy determination and in these circumstances we think the rule should be discharged without prejudice to the right of the executor to renew his application if contestants do not within a reasonable time after October 1,