whereupon a rule was granted on Annie | payment of such debts." Smith, et al., Aurand, the petitioner for the sale of the v. Wildman, 178 Pa. 243. real estate, to show cause why the said real estate should be sold.

The proper practice would have been a petition for à rule to show cause why the order directing a sale of the remaining real estate of decedent should not be vacated and set aside, and we shall consider the rule here as one to show cause why the order should not be vacated and set aside.

The Act of May 3rd, 1909, P. L. 386, Sec. I, provides, among other things, "That no debts of a decedent, including

the cost of settlement of the estate, except as provided in sections three and four thereof,-shall remain a lien on the real estate of such decedent longer than two years after the decease of such debtor, unless within said period an action for the recovery thereof be brought against the executor or the administrator of such decedent * * * *"

By the Act of June 14, 1901, Sec. 1, P. L. 562, it is provided, "That no debts of a decedent, except they be secured by mortgage or by judgment entered or revived by scire facias within five years prior to the death of such decedent, shall remain a lien on the real estate of such decedent longer than two years after the decease of such debtor, unless an action for the recovery thereof be commenced, and be indexed in the judgment index as other liens are indexed against such decedent, his heirs, executors or administrators, within the period of two years after his decease, and duly prosecuted to judgment; or a copy or particular, written statement of any bond, covenant, debt or demand, where the same is not payable within the said period of two years, be filed, within the period of two years after his decease, in the office of the prothonotary of the county where the real estate to be charged is situate ****"

"When the lien of the debts of a decedent upon real estate has expired by the limitation of time prescribed by the statute, the Orphans' Court has no jurisdiction to direct the executor or administrator to sell the real estate for the

that

In the case before us the decedent died August 29, 1905, and therefore the lien of any unsecured debts have long ago expired. The fact that the petitioner here advanced money herself to pay debts of the decedent gives her no higher In any other creditor. claim Loomis's Appeal, 29 Pa. 237, page 239, Knox, delivering the opinion of the court, says: "The testator died on the 16th day of January, 1842; and as no steps have been taken by the creditors to the devisees with the payment of the decharge the real estate in the hands of cedent's debts, it is no longer liable to the

lien of such debts.

That the executor has paid the debts, or a part of them, out of his own money, in no degree extends the lien upon the real estate, or impairs the right of the devisees to hold it discharged of the lien through lapse of time: McCurdy's Appeal, 5 W. & S. 399."

In Markel's Estate, 154 Pa. 289, page 291, it is said: "Advancing the money herself gives her no higher claim than any other creditor. McCurdy's Ap., 5 W. & S. 399; Loomis's Ap., 29 Pa. 237. In Emerick's Appeal, 172 Pa. 191, page 195, Justice Sterrett, delivering the opinion of the court, says: "Payment of a decedent's debts by his executor or administrator out of his own money, or assuming payment thereof and taking credit therefor, does not extend their lien upon the real estate: Craig's Appeal, supra; Clauser's Est., 1 W. & S. 208; McCurdy's Appeal, 5 W. & S. 399; Loomis's Appeal, 29 Pa. 237; Markel's Estate, 154 Pa. 285."

We do not think a direction in the will that the testator's just debts be paid continues the statutory period of the lien. Buehler's Heirs v. Buffington, 43 Pa. 278; Buffington v. Summit Branch R. R. Co., 74 Pa. 162 Yorks's Appeal, 110 Pa. 69. Nor do we think that the confirmation of the account showing an amount due the accountant, here the petitioner, makes any exception to the rule laid down above. In Battersby v. Castor, 181 Pa. 555, page 560, Mr. Justice McCollum says:

The confirmation of the account

to, asserts that, when he appeared at the

LANCASTER LAW REVIEW. alderman's office to take the appeal, he

informed the alderman that he wished

VOL. XXXII.] FRIDAY, JAN. 8, 1915. [No. 10 to give bail absolute, and the amount of

bail was fixed at $380.00; but the amount of the bail was, by error of the alderman, filled in as $80.00, and the words,

Debt, interest and costs," were omitted. On petition, setting forth these facts, a rule to perfect the bail was granted.

The depositions of the defendant and his brother, who is on the recognizance, are to the effect that they went to the alderman and “asked him for bail absolute"; that the alderman gave them a paper and they signed it, and that he said he would send it to Mr. Eaby. The alderman, in his testimony, stated that

he did not tell the defendant that he required bail absolute in the sum of $380.00; that he had "no recollection of them asking for bail absolute." He, however, stated that he did recollect that they said "just that they wanted to give bond and take out an appeal." He also testified as follows: "There was a time that, when they took out an appeal, they didn't have to pay the costs, and I didn't know whether it was absolutely necessary. I don't know yet, to be truthful about it, whether you can demand the costs or not. I do very little of this kind of business." He frankly admits that he cannot recall what was said and done concerning this matter, and, while

December 26, 1914. Opinion by he thinks he sent the appeal to Mr. Eaby, LANDIS, P. J.

he does not say when, and is not sure that he actually did so.

In this case, the suit was begun before Alderman Lewis A. Rauch, and, after a It must be admitted that the law in hearing duly had, judgment was, on cases of appeal from the judgment of March 16, 1914, entered in favor of the an alderman or justice now is, that the plaintiff and against the defendant for defendant may either pay the costs and the sum of $186.00, with interest and give bail for such as shall thereafter accosts. On April 4, 1914, the defendant crue, or he may give bail absolute and appealed, at the same time entering into appeal without in the first instance paya recognizance, with J. F. Bowermaster ing the costs. That neither of these as surety, in the sum of $80.00, condi- plans was pursued in this case must be tioned to "pay all costs accrued or that conceded by the defendant. Where a may be legally recovered" in the suit. defendant enters into a recognizance for The defendant did not pay the costs the costs which may accrue, and it is his which had accrued up to the time of tak-purpose to pay the costs already acing the appeal. For these reasons, the plaintiff asked to have the appeal stricken off, and the rule to that effect was obtained. The defendant, in answer there- |

crued, he must do so when he takes out his appeal, and when he fails to do this, he cannot save the appeal from being stricken off by making the payment after

the appeal has been entered. See Ruth | the appeal was taken is not entirely in v. Ruth, 29 LANC. LAW REVIEW, 260. accord with what has been testified to The failure to make payment is exclu- by the defendant. There is, however, sively the act of the party, and if he sufficient to show that the alderman did choose to neglect it, it is at his own risk. not know what the law was in the preThe only question which, therefore, re- mises, because he did "very little of this mains is, whether the defendant, under kind of business." It is, therefore, but the circumstances, ought to be permitted fair that, in the interest of trial by jury, at this time to perfect his recognizance the defendant should be given the benebecause of the mistake made by the fit of the doubt. To effectuate this end, magistrate. the rule to show cause why the appeal should not be stricken off is discharged, and the rule to perfect the recognizance nizance is perfected within ten days of is made absolute, provided the recogthe filing of this opinion.

First rule discharged.
Second rule made absolute.

Ruetten v. Ruetten.
Divorce Alimony.

Where the libellant earns twelve dollars a week and the wife and respondent has no separate estate, except what she earns by working in a factory she will on rule be awarded the usual counsel fee and three dollars a week alimony pendente lite.

Rule for alimony and counsel fees. C. P. of Lancaster County, May Term 1914, No. 8.

In Means v. Trout, 16 S. & R., 349, Gibson, C. J., said: "When bail has been defectively given within the period prescribed, there can be neither injustice nor hardship in suffering the appellant to perfect it as soon as the defect is discovered. Such a practice would be in analogy to bail at the common law. On the other hand, if a defect in the recognizance were irreparable, the appeal would be lost, and a great constitutional right frustrated. Such a mischief would be intolerable, and the more so as it is found to be of daily occurrence. Justices of the peace manifest such a remarkable inaptitude in this particular, as almost to warrant a suspicion that these defects frequently happen by design." In Koenig v. Bauer, 57 Pa., 168, it was held that, in a landlord and tenant case, the appeal should not be dismissed, because the recognizance was defective, until the defendant had been ruled to perfect it, and that "the right of appeal and of trial by jury is too precious to be frustrated by the ignorance, incompetency or malice of inferior magistrates and officers." In Adams v. Null, 5 W. & The papers in this case show that the S., 363, it was decided that " if, upon an libellant instituted this proceeding for appeal from the judgment of a justice of divorce against his wife. He is emthe peace, the recognizance be not in ployed in a silk mill at Ephrata at a conformity with the 33d section of the salary of $12 a week. The respondent Act of 12th February, 1842, the appellant has no separate estate, and depends upon must be called upon by rule to perfect it, her earnings as a forewoman in a silk which he must do nunc pro tunc, so as to mill at Wilkesbarre, where she resides, take effect from the date of the previous for a living. She began proceedings in one." Numerous decisions of like tenor the Courts of Luzerne County against might be cited, among which are our her husband for non-support, but no orown cases of Houck v. Whitaker, 18 der was made as the parties adjusted the LANC. Law REVIEW, 77, and Common-amount to be paid by him and the case wealth v. Sprout, 22 LANC. LAW RE

VIEW, 45.

Now it is true that the alderman's statement as to what took place when

Coyle & Keller, for rule.

Geo. Ross Eshleman, contra.

September 26, 1914. Opinion by HASSLER, J.

was continued indefinitely. Under these circumstances the respondent is entitled to counsel fees and alimony. We order that the libellant pay to the respondent

the sum of $15 counsel fees and alimony | phans' Court at the instance of one not a at the rate of $3 per week from this party to the proceedings. date, that being the amount that had been agreed upon between them when the case in the Luzerne County Court was continued.

Rule to review account and adjudica- her estate was sold for $2500.00; that tion.