Evert's Estate. the petition. A restraining order was issued by the Court; hearing has been had; the respondent claims to have disposed of all the fund before any petition was filed, in payment of Henry C. Evert's debts and the right to possession of the balance $1,365.50 must now be determined. It is clear that Henry C. Evert had a restricted right to consume the whole of his mother's estate. He could use it as he pleased for himself; but could not give it away; even his wife could not have a statutory dower, for there was an express direction that no third should be taken from the estate. When the testratrix's son did not need her estate, she directed that it should go to his children. By this direction she indicated that the son's estate was for life, with power of consumption for his needs, and if it is ruled that the children of Mrs. Lappe may have the benefit of this money, then the intention of the testatrix cannot be realized. In Bealafeld vs. Slaughenhaupt, 213 Pa., 563, it is said: "But whatever the testator may in fact have had in his mind, we have no doubt that the illegitimate child of the mother can take nothing under the terms of this will, because of the well established rule of law that the word 'children' and like words, are to be applied only to legitimate children, unless the illegitimate children are otherwise described, so as to leave no doubt they are to be included: Appel vs. Byers, 98 Pa., 479." * * * The will clearly negatives the theory that he had the power of appointment. He exercised the power, and appointed his mistress trustee for her children. This is void, and whatever of his mother's estate he did not use, was obviously not needed by him, and this would pass by the mother's will to those whom she designated as the objects of her bounty. Allen vs. Hirlinger, 219 Pa., 56, is much like the one at bar. There a life estate was devised to testator's wife, if she remained his widow, "with full permission to her to use and live therefrom as her necessities may require, and she to have the full ownership thereof the same as I now have, and have had during my natural life." The conclusion of the Court was this: "It is plain that he meant her to have whatever her necessities should require, even to the extent of the entire estate, as he had himself undoubtedly had during his lifetime. There was no limit put on her use. If she needed the whole, she was to have the whole, and expected that there would be something left, and this residue, be it much or little, he gave to his daughter. The terms of this latter gift are as explicit as those of the first." So it is with Mrs. Evert's will; she said no third should be taken from it, but it shall go direct to his children if he does not need it any more. The gift to the children is just as explicit as that to the son. Henry C. Evert died on February 18th, 1915. On the next day the respondent carried this money to the safe deposit box. If she had actually paid this money during Mr. Evert's lifetime for his needs, we could relieve her from the responsibility of accounting to the petitioner. The deception employed by falsely representing herself as the daughter of the deceased, in order to get the money, and afterwards her confiscation of it and secreting it, do not add anything to her case. She did not establish her credibility, and must now return the fund. Let a decree be drawn accordingly. judgment McCausland vs. Jackson. -Petition to Open-Testimony -Piano-Installment Lease. A piano was leased to defendant on February 4, 1915, on monthly installments with the privilege of exchanging it for another instrument within six months if it was not satisfactory. The purchaser expressed dissatisfaction and told the agent "it would suit me better if he took it away." This was not done and on June 24th, plaintiff took away the piano, and entered judgment and issued execution for $49.64. On petition to open judgment, Held: Defendant's testimony did not support his petition and rule discharged, although no answer was filed to the petition. Rule to open judgment. No. 28 October Term, 1915. D. S. B. C. P. Allegheny County. Scott & Purdy, for plaintiff. A. Devoe P. Miller, for defendant. MACFARLANE, J., September 18, 1915.-A piano was leased to the defendant from the 4th of February, 1915, at $10.00 per month in advance, and the first and only payment was made at the time the agreement was executed. The piano was taken by the plaintiff on June 24th, and the amount claimed by him in the execution is $49.64. The petition to open the judgment sets up that "defendant was to be allowed to exchange or return the said piano at any time within six months after the date of the agreement if for any reason the piano was not satisfactory." There was no answer filed to the petition, but the defendant's testimony was taken. The gist, of it is: "I said, Mr. McCausland, I don't like to take this piano, my wife not seeing it. He said, take it up. I will ship it up to you, and if you don't get your money's worth, that is the word he used, to come and tell him." * "Q. What length of time did he give you for the return or exchange of the piano at the time you entered into that agreement, the agreement entered into this suit? A. Six months." * * * "Q. Would you have signed the contract if Mr. McCausland had not told you that you could return the piano, if your wife was dissatisfied with it? A. No, I would not." In about a month defendant told McCausland he was dissatisfied with the piano and was told to go ahead and use it. "I told him it would suit me better if he took the same back." He went away without making any agreement. The piano was not taken away, and the only other notice of dissatisfaction was to a collector, until about June 24th, when the defendant told McCausland to take the piano back and he refused. The next day the piano was taken under the authority of the lease. The defendant's testimony as to the conversation between him and McCausland does not support his petition and it does not support the leading question of his counsel. Although there was no answer it is useless to open the judgment. Borman vs. General Accident Fire & Life Assurance Corporation, Ltd. Appeal Instructions to Jury-Insurance Policy-Evidence. A petition to allow an appeal to the Common Pleas from the County Court will be refused where the jury was instructed that recovery could be had on an insurance policy, when the evidence clearly brought the case within the provisions of the policy, and the trial judge committed no error in his charge. Appeal from judgment in County Court. No. 2742 July Term, 1915. C. P. Allegheny County. Benjamin L. Steinberg, for plaintiff. Langfitt & McIntosh, for defendant. EVANS, J., September 13, 1915. This is a petition for an appeal from judgment in the County Court. The plaintiff brought suit in the County Court on a policy of insurance indemnifying him against sickness. The clause of indemnity in the policy of insurance is as follows: "Clause (E)-At the rate of One Hundred dollars per month for the number of consecutive days, after the first week, that the Assured is necessarily, totally and continuously confined within the house, and therein regularly visited by a legally qualified physician by reason of illness that is contracted and begins after this policy has been maintained in continuous force for sixty days; or if during convalescence, immediately following said confinement, the Assured shall be wholly and continuously disabled from performing every duty pertaining to any business or occupation and require the regular attendance of such physician, the Company will pay him indemnity at one-half the rate above specified for the period of such disability not exceeding four weeks." The plaintiff claimed in his Statement of Claim for sickness which confined him to his house for a period from December 5, 1914, to January 4, 1915. On the trial of the case the plaintiff's testimony was to the effect that he was confined to the house for three days, and for the remainder of the time he called regularly on his physician, but was not confined in his own house all of the time. The Court instructed the jury that if that was the fact he was entitled to recover under what is known as the "Convalescent Law," the clause for indemnifying for sickness where the party insured is not confined to the house. We see no error in this instruction of the Trial Judge, and the petition for appeal is dismissed. Torrence, Trustee, vs. First-Second National Bank. Promissory Note Affidavit of Defense Supplemental Affidavit Parol A supplemental affidavit of defense is sufficient which avers that the parol agreement was made at the time of the execution of the note, that the bank was to hold the stock as collateral security not only for this note, but also for the indebtedness evidenced by the endorsement of three other renewal notes, and that the collateral note would not have been discounted had not the parol agreement been entered into. Amendment allowed where the objection to the form of the affidavit and the person were not made to the original. Rule for Judgment. No. 2063 April Term, 1915. C. P. Allegheny County. Morris, Walker & Allen and Wm. E. Schoyer, for plaintiff. MACFARLANE, J., September 24, 1915. The supplemental affidavit of defense avers that the parol agreement was made at the time of the execution of the note, that the bank was to have the right to hold the stock as collateral security not only for the payment of this note, but also for the indebtedness evidenced by the endorsement of three other renewal notes, and that the collateral note would not have been discounted had not the parol agreement been entered into. This is sufficient. The original affidavit of defense was, that at the time of the making of the loan of $11,500, Graham and Salsbury were indebted to the bank upon these notes and claimed a right to apply any surplus in the collateral above the amount necessary to pay that note toward the payment of the other notes, and the supplemental states that the total indebtedness is in excess of $21,500, and the market value of the two hundred shares at no time since the making of the $11,500 note exceeded $16,500, and at the present time the market value does not exceed $14,000. In view of the fact that the statement charges that the bank appropriated and applied the collateral "to the separate and individual liability of Graham and Salsbury to the bank," the point is not well taken that the affidavit does not state that the liability as endorsers was fixed by protest. It is sufficient to give the facts which show that the appropriation was rightful. The objection now made to the form of the affidavit and the person making it was not made to the original affidavit, and we will give the defendant ten days to amend. ORDER. Now, September 24, 1915, the defendant has leave to amend the supplemental affidavit of defense in the person making affidavit and in the form thereof, with leave to the plaintiff to renew his motion for judgment. In re Weights and Measures. Chief of Bureau-Inspectors-Standard Tests-Act of July 24, 1913, P. L. 960. The Chief of the State Bureau of Standards for Weights and Measures, under the Act of July 24, 1913, P. L. 960, may furnish the inspectors "with full specifications of tolerances and allowances to be used by them in the performance of their duties," but he has no authority to issue regulations on specifications regarding the type of commercial scales, weights or measures used; nor have the inspectors authority to concern themselves with reference to the type of any scale, weight or measure used, and their sole duty is to ascertain whether they conform to the standard tests. Answering your inquiry of recent date I beg to advise you as follows: You ask to be advised "If the Chief of the Bureau of Standards is vested with authority to issue regulations or specifications regarding the type of commercial scale, weight or measure that should be used in weighing or measuring commodities in the State of Pennsylvania, other than that specifically stated in the Act of Assembly relative to tolerance." The Act of Assembly referred to is the Act of July 24, 1913, P. L. 960, and it provides for the appointment of county and city inspectors of weights and measures, prohibits vendors from giving false and insufficient measures, etc., the obvious purpose of which is to protect the public against fraud. Accordingly the Act in Section 2 provides for standard tests of weights and measures, and inasmuch as it is impossible for weights and measures to be absolutely accurate in every respect the same section provides that the Inspectors named under the Act "shall be furnished by the Chief of the Bureau of Standards of this Commonwealth with full specifications of tolerances and allowances to be used by them in the performance of their duties." A somewhat similar provision is made in Section 7 of the Act of July 24, 1913, P. L. 445, relating to the scale of the commodities therein referred to "in package form" and for the same reason. The provision is: "That reasonable. variations shall be permitted; and tolerances and also exemptions as to small packages shall be established by rules and regulations made by the Chief of the Pennsylvania Bureau of Standards." While, therefore, the Chief of the Bureau of Standards may furnish the Inspectors "with full specifications of tolerances and allowances to be used by them in the performance of their duties," there is nothing in the Act of Assembly which authorizes the Chief of the Bureau to issue regulations or specifications regarding the type of commercial scales, weights or measures which may be used in weighing or measuring commodities in the State of Pennsylvania. The Inspectors, under the Act, have no authority to concern themselves with reference to the type of any scale, weight or measure used and their sole duty is to ascertain whether such scales, weights or measures conform to the standard tests as prescribed by the Act, subject to the tol |