instance, February has 28 days, except in leap year, when it has 29, and April, June, September, and November each have 30 days, while the remaining months have 31 days. (See 2 Bouvier's Law Dict. title "month.") The calendar year is therefore composed of twelve months, The depositions showed that the wife was pos- varying in length, according to the common or sessed of a separate estate. John A. Clark, for the rule, cited Toole v. Toole, I WEEKLY NOTES, 96. Josiah R. Adams, contra. [THAYER, P. J. Where the wife has a separate estate, alimony pendente lite will not be granted.] June 11, 1884. Rule absolute. G. R. V. D. Gregorian calendar. (Webster's Dict., "month.") Applying this test to the will, and computing from the date of the death of testatrix, one month prior to that date according to the calendar or almanac will bring us to February 28th, thus completing a calendar month. And as testatrix executed her will on the day previous, viz., February 27th, it follows it was executed prior to her death fully the time prescribed by the Act, and without counting the day of her death. In computing the time within which an act is to be performed, the day from which the computation is made is to be excluded. (Boyer v. N. C. R. W. Co., I Pearson, 113; McCready v. McGovern, Kulp, 474; and see Act of June 20, 1883, P. L. 136.) When a calendar month's notice of action is required, the day on which it is served is included and reckoned one of the days; and therefore if a notice be served on the 28th of April it expires the 27th of May, and the action April 7, 1884. may be commenced on 28th of May. (2 Blackst. Comm. 141, note 3.) Orphans' Court. Rachel Parker's Estate. Will-Calendar month, computation of― Charitable bequests-Act of April 26, 1855. Sur audit of the account of the executors. Decedent died March 28, 1883, having made her will dated February 27, 1883, and duly proved April 5, 1883, by which, inter alia, she bequeathed to the "Bethel Church in Sixth Street," and to the "Home for Aged Colored People," each one hundred dollars, and the residue of her estate to her sister, and other collateral relations. The only question raised, was whether the charitable bequests were valid under the Act of April 26, 1855 (Purd. Dig. 1477, pl. 22). The Auditing Judge (HANNA, P. J.), in his adjudication, found as follows: The will was executed on February 27, 1883, and testatrix died March 28, 1883, and the Act says all such bequests shall be void unless the will be made or executed at least one calendar month before the I And a lease made on January 1st to hold from year to year, rent payable quarterly, the first quarter's rent is due March 31st, and the lease expires December 31st. (Donaldson v. Smith, I Ash. 197.) Being of opinion, therefore, that the requirements of the Act of 1855 have been met, and the religious and charitable bequests are valid, they are accordingly awarded payment. D. R. Nuttall, for executors. April 26, 1884. No exceptions having been filed, the adjudication was confirmed sec. reg. Fish's Estate. June 16, 1884. decease of the testator. So that it is important Distribution-Practice-Rights of creditors not to ascertain whether the present will was executed one calendar month before the decease of testatrix. If the Act had said simply one month, then it would have meant a calendar month. (Moore v. Houston, 3 Sergt. & R. 169.) But to prevent misunderstanding, the Legislature said it shall be a "calendar" month, that is, a month according to the calendar or almanac, which is not uniform as a lunar month but varies; as, for affected by agreement between administrator and purchaser of real estate made after the sale. Sur exceptions to adjudication. At the audit of the account of the administrator of the will of Jacob S. Fish, deceased, the following facts appeared: During his lifetime decedent had given his bond for $2000 secured by a mortgage on premises No. 679 North Tenth Thomas W. Vaux is accordingly disallowed." Street. This bond and mortgage were after-1562, and cases there cited.) The claim of wards assigned to Thomas W. Vaux. The bond was entered up and the judgment thereon thus became a lien on all real estate of decedent in the county, among which was property on Citron and on Melon streets, which were also incumbered by building association and other mortgages. After his death it was found that his personal estate was insufficient to pay his debts, and, therefore, his real estate was called upon, and the Orphans' Court ordered the sale of the real estate for payment of debts. Previously to making sale of the real estate, the administrator, upon an application to the Court, appropriated the sum of $1150 towards the liquidation of the building association mortgages. By the entering of the bond Vaux became a judgment creditor of the estate of Jacob S. Fish, deceased, and should participate with other creditors in their awards according to priority. Mason's Appeal, 8 N. 402. Ramsey's Appeal, 4 W. 71. We cannot be postponed under the law, for we have a right and the duty is upon us to make our claim upon the personalty for the payment of the debt. Hammett's Appeal, 3 WEEKLY Notes, 416. The accumulation of remedies does not dimi nish our rights, and this right is not impaired by Morris v. Olwine, 10 Harris, 442. The sale took place on the 13th of November, 1883, when the Tenth Street property was sold to Clotilda E. White for $675, subject to the $2000 mortgage. The deed for this property was made and delivered December 28th, 1883. At this time the interest due and unpaid on the mortgage was $690. In the settlement for the purchase, the The position taken in this case that a mortgage house rent was calculated and added to the pur-creditor whose lien was not disturbed by the sale chase-money, and the evidence before the Audit- should be postponed to other specialty creditors, ing Judge was that it was agreed that all interest is not sustained by Gould's Estate (cited by the unpaid at that time should be paid by the estate. Auditing Judge), for this Court, in Jones's Estate Upon this agreement and basis the settlement (12 WEEKLY NOTES, 388), explained that in was made, and the consideration was paid. The Gould's Estate there was merely a suspension of statement of settlement, signed by the adminis-distribution for four months until the mortgage trator, was also produced and proven at the audit in support of the above facts. The aforesaid Thomas W. Vaux claimed the arrears of interest on the mortgage of the Tenth Street property, as the administrator had agreed the estate should pay the same. The Auditing Judge held that the arrears of interest were a mere incident to the original mortgage debt, and therefore disallowed the claim of Vaux, saying : a "The purchaser is, therefore, liable for the arrears of interest and not the estate. As to the claim upon the bond accompanying the mortgage, it need only be said that the judgment upon it is only to secure any balance not collected by suit and consequent sale upon the mortgage. The bond is the principal debt and the mortgage is a collateral security. The holder is bound to exhaust the latter, the mortgage, and then upon the bond collect the balance remaining unpaid in the suit on the mortgage. "He cannot be paid out of assets as to which other creditors having but a single remedy can alone look for payment, while he has another security of no advantage to them. It would be unjust to the other creditors, and we will not permit any such result. The judgment held by the mortgage creditor should accordingly be postponed to claims of the other specialty creditors. (See Gould's Estate, 6 WEEKLY NOTES, creditor should proceed against the mortgaged premises, which is all we ask for here. Further, the interest accruing day by day is one of the burdens of the land, and it is reasonable that the estate which profited by the income should bear the burdens incident to the ownership. Eddy's Estate, 13 Philada 262. If the Act of 1867 preserves the lien of a mortgage when prior to all other liens except other mortgages, etc., it would seem to be error to distribute any of this fund to the Tradesmen's and State Mutual Building Associations, whose mortgages answered the requirements of the Act, unless, indeed, Vaux's mortgage is accorded the same privileged position. S. Gavitt, Jr., W. C. Hannis, and N. D. Miller, contra. June 28, 1884. THE COURT. It is clear that the rights of creditors cannot be affected by any agreement between the administrator and a purchaser of the real estate made after the sale; nor can it be questioned that the sale of the Tenth Street property did not discharge the lien of the mortgage, either as to interest or principal. If the purchaser was misled in any way, his only remedy was by an application to have the sale set aside. (Penn Building Association's Appeal, 32 Smith, 330.) But, though the lien of the mortgage was not discharged as to this property, the mortgagee, by whom judgment had been entered upon the bond in the lifetime of the decedent, had his rights, so far as other properties were concerned, both as general creditor, and under the lien of his judgment; and that he had two funds to which he might resort while other creditors had but one, could not justify his exclusion altogether from the common fund. (Jones's Estate, 12 WEEKLY NOTES, 388.) Ordinarily in such a case, distribution might be suspended until after proceedings could be had on the mortgage, as in Gould's Estate (6 WEEKLY NOTES, 562); or, payment might be awarded to the mortgagee, as general creditor, or by virtue of his judgment lien, out of the proceeds of the properties not covered by his mortgage, the lien of the mortgage being preserved for the benefit of other creditors, who, to the extent that they had been deprived of the common fund by reason of its having been so taken, would be entitled to subrogation upon the mortgage. Of course the purchaser of the mortgaged property, who had paid only for the decedent's interest in the property in excess of the mortgage, could not claim that payments so made to the mortgagee should be applied in extinguishment or reduction of the mortgage subject to which he had bought. Sur petition for further order of Court, and answer. The petition of the executor of Wolfang Kieszling set forth that testator died leaving a will dividing his estate between his sister and his son, provided that the latter should " come forward and make himself known within three years from the date of my death" (March 9, 1881). Christopher Kieszling, the son, had not been heard of for some time prior to his father's death, and, after the adjudication of the executor's account, by order of Court, the share of Christopher Kieszling was deposited in bank and a system of advertising instituted, which resulted in the reception of a letter on January 3d, 1884, from one who knew that Christopher Kieszling had left for the West, in July, 1877. Further search elicited a letter signed Christopher Kieszling, dated June 2, 1884. The petition asked for further order in the premises, inasmuch as the letter first received prevented the presumption of his death until July, 1884. The answer, admitting the facts, maintained that as Kieszling had not complied with the provision of his father's will he must forfeit his share of the estate to decedent's sister. W. H. Staake, for petitioner. S. S. Remak, for the substituted legatee. In the present case, however, it appears that by an arrangement made previous to the sale and afterwards confirmed by the Court, the two other properties were sold clear of incumbrance other than first mortgages, and that the proceeds, after payment of taxes, etc., etc., were insufficient to pay the specific liens discharged by the June 28, 1884. THE COURT. The petition sale thus made. The fund now before the Court undoubtedly discloses a prima facie case in favor represents, therefore, only the proceeds of the of the substituted legatee, by alleging a full comproperty sold subject to the mortgage of the ex-pliance with the testator's request, and with the ceptant, and, after payment of taxes, amount corresponding order of Court, to advertise for due upon a judgment, etc., etc., there remains the missing son, and the failure of the latter to but $35.14 for distribution among general creditors. This amount is so small that it is not worth while to consider what right the exceptant may have, as general creditor, to claim a dividend. The inconvenience which would result to him from having the accountant subrogated as mortgagee to the extent of the dividend would largely exceed any benefit from the payment. We will therefore dismiss the exceptions, giving leave, however, to the exceptant, if he should desire to avail himself of it, to apply within ten days from the date of filing this opinion for an order suspending distribution until after a sale under the mortgage. Opinion by PENROSE, J. W. D. N. make himself known within the time limited by the will. Where, however, the subsequent knowledge of his whereabouts is so distinctly admitted, no adverse judgment would bind him, and certainly none would conform to equitable principles which did not first require that he should be made a party to the record. Whether any evidence which he may submit, either of efforts to comply with the directions of the testator, or of disability which precluded all effort, can avail him, would be prematurely discussed unless this prerequisite shall be complied with. We therefore direct that a copy of the petition, with notice that he will be required to answer within twenty days from its receipt, be served upon the son, and that a return thereof be made to the Court. INDEX OF ALL THE CASES REPORTED IN THIS VOLUME BY RICHARD C. DALE, Esq. ABATEMENT, pendency of indictment, when 40. ABANDONMENT, what sufficient evidence of ACCIDENT INSURANCE. See INSURANCE. ACCUMULATIONS, trust for, when sustained. In such suit upon a chose in action, a warrant of Action on the case, when maintainable against rail- ACTS OF ASSEMBLY-Continued. 1836, June 13. 1855, April 26. Orphans' Court. 31, 320. 1859, April 12. 1860, March 6. Orphans' Court. 258, 499. 1860, March 18. 1860, March 31,. Executions. 253. Process. 38. Justice of Peace. 530. Equity. 225. Married Women. 1, 44. Railroad. 177, Telegraph. 535. District Attorney. 428. Meadow Company. 240. Orphans' Court. 31. Frauds. 290. Wills. 566. Assignments. 285. Adoption. 422. Feme Sole Trader. 99.. 345. Frauds. 152. Sheriff, 322. Liquor. 368. Taxes. 268. Building Associations. 247. Harrisburg. 280.. (569) 1874, June 22. AFFIDAVIT OF DEFENCE LAW-Continued. Although an affidavit of defence filed before return When a copy is filed during the second week after No writ of error lies to the refusal to grant judg- Sufficiency of copy. A contract to buy shares A bank ledger is not a book of original entries Book entries charging goods in the manner cus- Indorsements of credit upon a promissory note are In an action against a corporation upon a guaranty No material defect in the copy filed can be supplied Sufficiency of affidavit. Au affidavit by the What is a sufficient denial of the purchase of goods. What a sufficient averment of fraudulent negotia- ADVANCEMENT, when not an ademption of AFFIDAVIT OF DEFENCE LAW. Upon The pendency of an attachment execution does not Schleppi v. Gindele, 31. What a sufficient affidavit in an action by holder In an action against guarantor, an averment cannot AGENT. See PRINCIPAL AND AGENT. AMENDMENT. Under the Act of May 10, 1871, |