Lane vs. Smith, 103 Pa. 415; Bank vs. Schuylkill County, 190 id. 188; Taylor vs. Sattler, 6 Pa. Super. Ct. 229; Gallagher vs. Burke, 13 id. 244, 250.

It may not be improper to add that the conclusion of the jury commends itself to the Court as supported by the fair preponderance of the evidence, as well as the natural probabilities of the case. It ought not to be disturbed without cogent necessity arising from clear and prejudicial error, which, it is believed, has not been made to appear.

The rule to show cause is discharged.

ECCLESIASTICAL, etc., CO. vs. BERNARDINE SISTERS,

etc.

Contracts-Party Liable-Sales-Interpretation of Contracts.

1. The right of the plaintiff in an action ex contractu is to hold the party who is liable under the contract as purchaser, not one who is not so liable; for the recovery in any action must be secundum allegata.

2. The interpretation which parties put upon their contract is the one which the Court will ordinarily adopt. It will not assume to understand their interests better than they themselves.

In the Court of Common Pleas of Berks County.

No. 55 November Term, 1916.

Verdict for defendant.

Rule by plaintiff for judgment n. o. v.

Randolph Stauffer for plaintiff and rule.

George J. Gross, contra.

Opinion by Endlich, P. J., June 23, 1917.-Both parties in this case agreed at its trial that it was one for the decision of the Court exclusively, and accordingly a verdict was directed for defendant. The declaration avers a sale by the plaintiff to the defendant order through its Mother Superior, who had authority to bind it. The facts agreed upon show a sale to one of the sisters of the defendant, who had no such authority. The most that might, rightly or wrongly, be claimed to have been brought home to the Mother Superior would seem to be a promise to pay a debt contracted by the sister. The important inquiry under these circumstances is, how did the parties themselves regard the situation and their respective rights and liabilities? The interpretation which they put upon their contract is the one which the Court will ordinarily adopt: Gas Co. vs. Wire Co., 155 Pa. 22, 25; Kaul

vs. Weed, 203 id. 586, 593; Logan's Est., 231 id. 213, 218. Nor will it assume to understand their interests better than they. themselves: Phillips vs. Blatchford, 137 Mass. 510. As decisive on this point, it appears that the plaintiff, in letters subsequent to the defendant's refusal to accept and pay for the articles here in question, spoke of the sister as liable to it for payment, plainly intimating that its understanding was that the sister was the purchaser and bound to pay, and not the defendant. If the parties so understood their relations, there can be no question about the correctness of the verdict. The right of the plaintiff is to hold the party who was liable upon the contract as purchaser, not one who was not so liable; for the recovery in any action must be secundum allegata: Mfg. Co. vs. Welde, 196 Pa. 508; Rodell vs. Adams, 231 id. 284; Bank vs. Asphalt Block Co., 233 id. 421; Windish vs. Gas Co., 248 id. 236; Clark vs. Lindsay, 7 Pa. Super. Ct. 43; Hennessy vs. Anstock, 19 id. 644; Hale vs. Hale, 32 id. 37.

The rule to show cause is discharged.

WERLEY vs. MADEIRA and MILLER, Assignee, etc. Contracts-Bailment—Affidavit of Defence—Sufficiency.

1. In an action of replevin against an assignee for benefit of creditors to recover certain cattle claimed to be in the assignee's hands as plaintiff's bailee at the time of the assignment and to be in the assignee's hands at the time of suit as the property of the plaintiff, an affidavit of defence is sufficient to prevent judgment which alleges that the transactions were in truth sales and that the form of bailments was adopted to secure payment to the vendor, the assignor, of the purchase price.

Assignment for Benefit of Creditors-Insolvency Act 4 June, 1910, P. L. 404, Sec. 17-Right to Sue Assignee Without Leave of Court. 2. The Insolvency Act of 4 June, 1910, P. L. 404, Sec. 17, providing that the assignee "shall be liable to suit in his representative capacity, by any person seeking to recover specific property, if such property could have been recovered as against the creditors of the insolvent levying an execution thereon," does not make the assignee an officer of the Court in any such sense as is a receiver appointed in equity, and, therefore, a plaintiff may institute an action of replevin against an assignee without leave of Court.

No one can participate in the distribution of a fund who claims adversely to it.

In the Court of Common Pleas of Berks County.

No. 55 March Term, 1917.

Rule for judgment for want of a sufficient affidavit of defence.

Thomas K. Leidy for plaintiff and rule.

H. Robert Mays for Charles K. Miller, assignee.

Opinion by Endlich, P. J., June 23, 1917.-This is an action of replevin against an assignee for benefit of creditors to recover certain cattle claimed to have been in the assignee's hands as plaintiff's bailee at the time of the assignment, and to be in the assignee's hands now as the property of the plaintiff. Assuming the contracts under which the cattle were transferred to the assignor, on their face and in terms, to be contracts of bailment, the original affidavit of defence filed by the assignee alleges in substance that in truth the transactions were sales, and that the form of bailments was adopted simply to secure payment to the vendor, the assignor, of the purchase price. That such a defence is competent admits of no question. Nor is it doubtful that, if sufficiently made out by the evidence, it must defeat the plaintiff's action.

A supplemental affidavit of defence filed subsequently by the assignee undertakes to raise a question of law under sec. 20 of the Practice Act 1915, to wit, "Can the plaintiff maintain an action of replevin against and recover property in the hands of Charles K. Miller, assignee for the benefit of creditors of Edward Madeira, in an action instituted without leave of Court?" Without discussing the regularity of the method in which this question is brought before the Court, it may be noted that sec. 17 of the Insolvency Act of 4 June, 1901, P. L. 404, declares (p. 414) that the assignee "shall be liable to suit, in his representative capacity, by any person seeking to recover specific property, if such property could have been recovered as against the creditors of the insolvent levying an execution thereon." Moreover, there seems to be nothing in the Act that makes the assignee an officer of the Court in any such sense as is a receiver appointed in equity: see, e. g., Com. v. Young, Sheriff, et al., 11 Phila. 606, cited and relied on by the assignee's counsel. Nor is it clear how a claimant of property in the assignee's hands could otherwise (except by agreement) protect himself, consistently with the principle laid down in Williams' App., 101 Pa. 474; Geist's App., 104 id. 351; Hyde vs. Kiehl, 183 id. 414, and numerous cases decided before and after these, that no one can participate in the distribution of a fund who claims adversely to it.

Whilst we are unable to agree with the assignee's position on the question raised by the supplemental affidavit, we are of the opinion that there is enough in the original affidavit of defence to prevent the entry of the judgment asked for by the plaintiff, and accordingly,

The question of law raised by the assignee in the supplemental affidavit of defence is decided adversely to him, and the rule to show cause is discharged.

NAGLE'S ESTATE.

Decedents' Estates-Compensation of Executor Fixed by Will-Compensation Where Same Person Acts as Executor and TrusteeAct 17 March 1864, P. L. 53, Sec. 1.—Acceptance of Office of Executor.

1. Where the will of a decedent clearly limits the compensation of the executor to $600 "to settle up my estate," the amount stated will be construed to be the total amount of commissions to which the executor is entitled on the principal of the whole estate.

2. The Act 17 March 1864, P. L. 53, Sec. 1, expressly forbids more than one commission where the same person under a will performs the duties of executor and trustee.

3. Where an executor accepts the office with the knowledge of a provision in the will fixing his compensation, he is ordinarily bound thereby.

In the Orphans' Court of Berks County.

No. 28 June Term, 1917.

Adjudication of account.

Adam B. Rieser for accountant.

Walter B. Freed and Cyrus G. Derr for William B. Bright, administrator, and one of the heirs of Sallie Bright, deceased, who was a legatee.

Opinion by Endlich, P. J., July 13, 1917.-The decedent died on the 21st day of August, 1912, testate, having, by his last will and testament, disposed of that part of his estate as follows:

"All the rest residue and remainder of my estate I give and bequeath in trust to Daniel A. Rothenberger, of Oley, Pa., during the lifetime of my son Frank, the said trustee to pay toward the support of my son Frank out of the income of my estate the sum of twenty ($20) dollars annually.

"All the rest and residue of my estate left upon the death of my son Frank, I give and bequeath to Daniel A. Rothenberger, of Oley, Pa., to my sisters Ellen Moser, Sallie Bright and my brother Milton Nagle, share and share alike, their heirs and assigns."

Frank Nagle, the cesqui que trust, having died on February 6, 1917, the trust terminated and the trustee has filed his account. It contains the principal fund and income. Of principal, the balance for distribution is $1,492.30. Distribution of the income is asked, and will be made, to John F. Lutz, administrator of the deceased cesqui que trust. The principal is now distributable to the remaindermen. Of these, two have died since the testator. Sallie Bright, one of them, has for her personal representative, William P. Bright, administrator, and Milton Nagle, the other, Herbert M. Nagle, administrator. Distribution is asked and will be made to the personal representatives.

Reuben Nagle, under whose will the present trust estate arises, appointed Daniel A. Rothenberger executor and also trustee of the residuary estate during the lifetime of Frank Nagle, the son of the decedent. In his will the testator provided, inter alia, as follows: "I order and direct that Daniel A. Rothenberger my hereinafter named executor shall receive the sum of six hundred ($600) dollars compensation to settle up my estate." When Mr. Rothenberger filed his account as executor on July 24, 1913, he took a credit for $600, the compensation stipulated in the will. In this account as trustee he takes credit in the principal account, as follows: "By accountant's compensation $1,008.07."

Exceptions have been filed by William P. Bright, one of the heirs of Sallie Bright, deceased, to the allowance of this credit of $1,008.07, averring that the accountant is not entitled to this compensation as trustee, because he has already received his commission as executor. The accountant contends that the compensation named in the will, was intended merely to pay him for his services connected with the administration of the estate as executor, and did not contemplate payment for the additional services as trustee. The will of the decedent clearly limits the compensation of the executor to $600 "to settle up my estate," which means that this is the total amount of commissions he is to have as executor in the principal amount of the whole estate.

Here we have the case of a testator appointing the same person executor and trustee; and of an executor who has already received his compensation of the principal asking, at the termination of the trust estate, for additional commissions on the principal as trustee. We do not see how this allowance can be made in view of the Act of March 17, 1864, Sec. 1, P. L. 53, which provides that in all cases, where the same person, shall under a will fulfill the duties of executor, and trustee, it shall not be lawful for such person to receive or charge more than one commission upon any sum of money coming into, or passing through, his hands, or held by him for the benefit of other parties, and such single commission shall be deemed full compensation; with the proviso that the trustee may subsequently be allowed a reasonable commission on the interest he may receive from any sum so held in trust. This Act expressly forbids more than one commission, where the same person under a will fulfills the duties of executor and trustee. The accountant as executor has already received the compensation fixed by the will, and to allow him. additional compensation out of the same fund for his services. as trustee, would be a clear violation of the Act of Assembly. See Bosler's Estate 161 Pa. 464; Porter's Estate, 25 Dist. R. 78; Kennedy's Estate, 26 Dist. R. 124.