"Any member," says the same by-law that we have quoted, "neglecting to pay his assessments within three months ** * shall be struck off the roll of membership;" and the fact that this provision stands side by side with the other requires that each shall be given a separate significance. The one is self-executing, while the other is not. Failure to pay assessments at the first meeting after pay day deprives the party of benefits ipso facto until it is remedied; if the neglect be persisted in for three months it renders him liable to an entire forfeiture of membership. On this subject Article 4, Section 4, of the constitution, further provides that when an assessment is collected the recording secretary "shall make a list of all delinquent members' names that have not paid their assessments at the regular meeting of the fund. All such members' names that have not paid their amounts will be posted up on the head of the shaft for three consecutive months, and if not paid in specified time will be struck off the roll of membership." Notice of posting in the manner so directed takes the place of a personal notice and is sufficient to justify action on the part of the association forfeiting the delinquent's connection with the organization. Notice of some kind is unquestionably necessary before that takes place and the affirmative action of the association is required, but there is a wide distinction between a case of that kind and one where a member merely becomes non-beneficial. The referee seems to have confused the two conditions. Following the decision. of Judge Edwards in Wheeler vs. Lackawanna Coal Company Accidental Fund, 5 Lacka. Legal News, p. 97, he holds that a question of the forfeiture of the membership of the deceased was involved, and that this was only to be brought about by the direct action of the association after notice, neither of which was shown. We cannot accept this as a correct view of the The doctrine is all right, but it has no application. is not a case of forfeiture at all, but of whether the decedent at the time of his death was in good standing so as to entitle himself or his family to benefits from the Fund. In our judgment under the by-laws, he was not, because he failed to pay within the time there specified the assessments against him of which he was bound to take notice. It There is another point in the case, and that is, whether the wife of the deceased is entitled in her own name to maintain the action. As the views we have already expressd on the merits are decisive of the general controversy we see no occasion to discuss this question, and we therefore express no opinion upon it. The second exception to the referee's findings of fact and the first, third and fifth exceptions to his conclusions of law are sustained; the report is set aside, and a new trial awarded. E. S. Williams vs. John A. Mears. Common Pleas of Lackawanna County, No. 925, March term, 1897. The terms of a contract providing that no claim for extra compensation should be allowed, unless the extra work was done upon the written order of the architect and the amount computed by him; also that the measurements and estimates of the architect are to be conclusive on both parties, together with other similar terms, may be waived by the acts and conduct of the parties to the contract. Rule for new trial. I. H. BURNS, JOHN R. EDWARDS for rule. STREETER AND LOWRY, contra. EDWARDS, J., March 13th, 1899. One of the reasons for a new trial assigned by the defendant is that the verdict was in a larger amount than the plaintiff claimed. This applies only to the item of interest. According to the plaintiff's statement the bulk of the charges against the defendant is made on December 31, 1895; this is the date of the entry on the statement, the work evidently having been done previous to that date. The payments on account of the contract were made at different times from August 9th, 1895, to December 12th. The jury calculated interest from January 1st, 1896. It is true that the plaintiff receives from the jury the fullest allowance of interest possible under the facts of the case. We see no reason to disturb their action on this point, although we would possibly have allowed thirty days less interest. According to the terms of the contract between the parties it appears that there could be no claim for extra compensation. unless the extra work was done upon the written order of the architect and the amount computed by him; also that the measurements and estimates of the architect were to be conclusive on both parties, and that the balance payable on the contract was not due until the final estimate had been received by the plaintiff from the architect. These provisions in such a contract are always desirable, and prevent disputes between owners and builders. But in this case it seems that these provisions of hte contract were waived by the plaintiff and the defendant. Money was paid, alterations and extra work ordered, and computations made without calling upon the architect. So far as the plaintiff and defendant are concerned the clauses in the contract referred to were a dead letter. The jury rendered a verdict for the plaintiff for the full amount of the claim. We cannot set their verdict aside because they favored the plaintiff's side of the case. They had a right to take the evidence of the plaintiff and his witnesses and disregard that of the defendant, and find a verdict accordingly. The questions involved were entirely questions of fact, and it was the exclusive prerogative of the jury to decide the facts as they saw fit. Under the circumstances we have no right to interfere with the verdict of the jury in this case. The rule for a new trial is discharged. Estate of P. C. Callahan, Deceased. Orphans' Court of Lackawanna County, Old Series, No. 1138. Decedent's Estate-Will-Executors-Accounting.. Where the estate of a decedent is composed of funds derived from different sources cach of which requires peculiar and appropriate handling, they can nei her be drawn together into one, nor disposed upon the mere distinction of realty and personalty. Insurance money received by an executor for loss of property by fire has a double character. It belongs on the one hand to the devisees of the property and on the other is assets for the payments of debts, and it must be used so far as needed for that purpose; but both of these qualities are to be kept in mind in disposing of such a fund. The executor has the right to resort to it to make up a deficiency cast upon him by the settlement of his administration account, but after that has been satisfied the balance must be devoted to the same trusts as the real estate out of which it grew. Rents received by executors while in the undisturbed possession of a decedent's property under his will, are collected for the benefit of the parties to whom they were given by the provisions of that instrument and not for those who assert a title antagonist c to them; and they are to be distributed to those to whom the executors were themselves bound to pay them following out the mandate of the testator. Funds which come into the hands of an executor under the provisions of decedent's will must be disposed of according to the terms of that instrument. Where the devisees under a will accept the same so far as it makes in their favor, they are estopped from disputing such part of it as may not. Exceptions to report of auditor appointed to pass on final accopnt of John J. FAHEY, surviving executor. E. C. NEWCOMв for exceptions. O'BRIEN and KELLY for executor. ARCHBALD, P. J., September 12th, 1899.--The account under consideration is made up of funds derived from different sources, each of which required peculiar and appropriate handling. They can neither be drawn together into one, as they have been by the accountant, nor disposed of upon the mere distinction of realty and personalty, as assumed by the auditor. We really have three separate and distinct funds to deal with the first is composed of the general assets, real and personal, devoted to and found necessary for the payment of the debts of the decedent, and collected and paid out by the executor in the general administration of the estate; the next (in connection) is derived from the insurance money paid to the executor upon the destruction by fire of the improvements on the real estate; and the third is made up of the rents collected by the executor under the directions of the will which, after payment of taxes, insurance, and necessary repairs, are devised to the widow and children in equal shares. The disposition of the first of these is simple; but not so the second and third, with regard to which, in our judgment, the auditor has fallen into material error. 1. The general administration account of the executor is easily stated. He is chargeable with the amount of the personal property inventory, and the gains which have been made. upon it; and with the proceeds of the mortgage for payment of debts authorized by the Orphans' Court; and he is entitled to credit on the other side for necessary disbursements and debts paid, together with his commissions upon the money passing through his hands. We may as well make it up and dispose of it right here. Grouping and combining items for the sake of brevity, the details of which will appear by reference to the auditor's report, it would stand as follows;— John J. Fahey, executor, in account with the estate of P. C. Callahan, deceased. Dr. To the amount of inventory filed........... To sundry gains upon inventory as per auditor report $5,183.92 797.02 To money raised by mortgage by order of $8,280.94 Cr. By amount realized from personal property less than appraisement.. By sundry uncollectible assets, see auditor's report By household furniture bequeathed and deliyered to widow .$ 88.67 550.00 215.00 $ 853.67 By numerous disbursements for items of which reference is made to personal property account as stated by auditor Total disbursements .$8,825.05 $9,678.72 Deficiency in personal property assets to be re-im bursed to the executor . $1,619.54 $8,280.94 The insurance money, it will be noted, has not been brought into the account as so stated, but by reason of its close connection is the next to be taken up. This money has a double character. Standing as it does for a part of the corpus of the estate which has been destroyed by fire, it belongs on the one hand to the devisees of the property, and on the other as assets for the payment of debts, it must go to the personal representative so far as needed for that purpose. Nichols' Ap |