this, because the testimony shows that all of the property, both real and personal of that Company was advertised for sale by the receivers of the Hardware & Woodenware Manufacturing Company, and that it was purchased as a unit at that sale by one of the defendants' grantors.

The fact that at the time the contract was made neither Tisdale nor Kingsbury had title to the property in question does not prevent a decree for specific performance, as they subsequently did become owners of it: Haupt v. Unger, 222 Pa., 439. A vendee may have the benefit of the after-acquired title of the vendors even though it be only an equitable title: 36 Cyc., 574 & 575.

But it is contended, because the plaintiff in this letter to Tisdale in sending the $3,500 of the purchase money said, we make this deposit upon the understanding that it will be returned to us upon demand, if within sixty days from the date of the sale, which was April 20th, you are not able to convey to us the Grey Iron property with a good, marketable title, free and clear of all encumbrances," that Tisdale was justified in returning the amount when he was unable to raise the balance of the purchase money necessary to pay for all the properties he purchased.

This was stated in the letter for the plaintiff's benefit, and it alone could demand the return of the money if Tisdale was unable to convey the title called for. Tisdale could not avail himself of it, to the injury of the party which it was intended to benefit. The plaintiff did not demand the return of the money, and Tisdale could not avoid his liability under the contract by returning it, for the reason that he was unable to convey the title called for in the contract, because of inability to comply with his bid.

3. When Tisdale purchased the properties as agent of Kingsbury and others and paid 10 per cent of the purchase price, which sale was confirmed, he then became the equitable owner of the property.

He was acting as agent for Kingsbury and others through an agreement that

each was to have a separate property, and it was not shown that any one except he and Kingsbury were to have the property of the Grey Iron Company, and they subsequently declared that they were the owners of it, and dealt with it accordingly. In fact, Tisdale without any proven authority transferred this property to the defendant by requesting the Court to substitute them for himself in the proceedings for its sale. The title of the defendants was acquired through Tisdale's purchase at the sale, in a contract made between him and the defendants. This is true even though the Court directed the conveyance to the defendants, it having been done at Tisdale's request in pursuance of his contract with them.

The fact that Tisdale was unable to raise the money does not affect the title he had thus acquired and had up to the time he sold it to the defendants. As they acquired it from him and paid for it after having had notice of the contract between him and the plaintiff they took it subject to the plaintiff's right and cannot hold it as against the plaintiff.

4. The plaintiff tendered the balance of the purchase money and expressed a willingness to comply with all requirements of the contract, and repeated such tender at the trial. No objection was made to the sufficiency of that tender at the time it was made, and one of the defendants then admitted that it was sufficient.

The plaintiff could not tender the amount of the share of the expense of maintaining a salesroom and salesmen in New York, as it did not know what it was, such knowledge being in possession of the defendant. It was sufficient for it to express its willingness to perform that part of its contract when it was ascertained. Where a vendee does not know the exact amount payable or an account is necessary to determine the amount, strict tender is excused. The offer to perform is sufficient: Wagenblast v. McKean, 2 Grant, 393; 36 Cyc., 704. If no objections are made to the sufficiency of the tender or demand at the time, or if the defendant then repudiates the contract, he cannot set up

defects in the tender, or demand, as a defense to the suit: Pennsylvania Mining Co. v. Thomas, 204 Pa., 325; 36 Cyc., 704. When the vendor has repudiated the agreement, thus making it appear that if the tender were made its acceptance would be refused, tender or offer by the vendee before suit is unnecessary. Equity does not require a useless formality: Shattuck v. Cunningham, 166 Pa., 368; Whiteside v. Winans, 29 Sup., 244; Minsker v. Morrison, 2 Yeates, 344; 36 Cyc., 705. We think the tender made in this case was sufficient.

5. The Assets Realization Company is the real owner of the property involved here. George E. Shaw and Campbell Carrington were trustees of it for said Company. In conveying it to John Story Jenks, an officer of the defendant company, without a consideration, or for at nominal consideration, without proper authority from the defendant company, the actual ownership was not changed from the Assets Realization Company to said John Story Jenks, and specific performance can be decreed against it. The Assets Realization Company has been and is now in actual control and possession of the property.

6. Specific performance of a contract for the sale of personal property can be had under circumstances such as exist in this case: N. C. R. Co. v. Walworth, 193 Pa., 207.

7. In addition to paying the defendant the balance of the purchase price of the property of the Grey Iron Casting Company, viz., $31,500, with interest, to March 6, 1913, viz., $1,081.43, making a total of $32.581.43, it must also pay to it the pro rata share of the expense of maintaining a salesroom at 693 Broadway, New York, from February 17, 1912, to August 13, 1912, and of the salary of the salesmen under contract prior to February 17, 1912, from February 17, 1912, to August 13, 1912. This expense to be arrived at by dividing the expense into the total amount of sales made for all the factories, and each factory to assume its pro rata share on a basis of sales received through the selling agency at 693 Broadway." The defendants having made settlement of this amount with

66

the receivers of the Hardware & Woodenware Manufacturing Company shall inform the plaintiff what that amount is, and the plaintiff must be bound by it, if it has been properly ascertained by and between the defendants and the receivers of the Hardware & Woodenware Manufacturing Company.

8. The plaintiff is entitled to have conveyed to it by the defendants all property, both real and personal, including the patents, of the Grey Iron Casting Company, except such materials and supplies of raw, wrought and finished goods. as have been sold in the course of business, in accordance with the provisions of the agreement with Tisdale and Kingsbury, as described in plaintiff's bill, upon payment by the plaintiff of the balance of the purchase price in said agreement, less the value of the materials and supplies, raw, wrought and finished goods sold thereout for the benefit of the Assets Realization Company since August 13, 1912, and also the rental value of the real estate or the profit of the business, whichever is the greater.

9. The defendants shall state an account showing the quantity of such materials and supplies, raw, wrought and finished goods so sold by the defendant or for their account out of the personal property purchased on August 13, 1912, and the selling price and value of the same, and unless the parties can agree upon the quantity and value of such supplies, materials and goods so sold, and the rental value or profits of said real estate, an assessor will be appointed to state such account.

10. The defendants are not entitled to recover for any improvements made while they were in occupancy of the real estate.

11. The preliminary injunction granted in this case shall be made permanent.

12. The defendants shall pay the costs of this suit. The cost of an assessor will be disposed of later in case one be necessary.

It is ordered that counsel for the plaintiff prepare a decree in accordance with these findings in case no exceptions are filed thereto within the time rquired by the Equity Rules.

If E. R. Palmer is right when he tes

Superior Court.

Parmer's Estate (Palmer, Executor's

Appeal). No. 2.

Then, E. R. Palmer and H. K. Palmer would be trustees and would account as such and not as executors.

Osmond's Estate, 161 P. S., 543.

If the executors had accounted for the money contended for, it would have

dent before death-Surcharge.

An executor will be surcharged with and ordered to pay over to those entitled the proceeds of a certificate of deposit, endorsed and handed to him by the decedent, his father, shortly before his death, presumably to be distributed as his property after his death, and which the son did partly distribute to legatees named in the will.

Appeal to October Term, 1913, No. 78, by H. K. Palmer, executor of Henry J. Parmer, deceased, from decree of O. C. of Lancaster Co., dismissing exceptions to adjudication and surcharging appellant.

By adjudication filed Jan. 16, 1913, the appellant was surcharged with and ordered to pay out moneys which had been paid over to him by his father, the decedent, before his death. See 30

Law Review, IOI.

He thereupon took this appeal, assigning error as follows:

Ist. The Court erred in making the following decree, "The exceptions are dismissed and the adjudication is confirmed absolutely."

2nd. The Court erred in surcharging H. K. Palmer, one of the executors, with $483.56 in favor of Eva Huss Stigelman, the appellee.

John M. Groff and B. F. Davis, for appellant.

The father intended to make a gift and executed his intention. It was, therefore, binding on all parties concerned.

"Where the executed intention to make a gift is shown, it is binding and enforceable as a gift, in accordance with the intention against the donor, and those standing in his shoes, and in favor of the donee."

Robert's Appeal, 85 P. S., 84.
Welsh's Appeal, 122 Pa., 177.

have been permitted to withdraw the same from their account.

Osmond's Estate, 161 P. S. Opinion, P. 550.

Qualter's Estate, 147 P. S., 124.

If it was intended to defraud a creditor only the creditor, and not the decedent's heirs, could complain.

The Orphans' Court is a court of limited jurisdiction, exercising only such powers as is given it by statute, expressly or by necessary implication. There is no authority conferred upon the Orphans' Court by Act of June 16, 1863, P. in limine whether personal property L., 784, to take testimony and determine claimed by an executrix as her own, was The executrix is entitled to stand upon or was not the property of the testator. her constitutional privilege of having the question of her title to the property passed upon by jury.

Schnepf's Estate, 48 Sup. Ct., 580.
Cutler's Estate, 225 P. S., 167.

H. Frank Eshleman, for appellee.

H. K. Palmer acted as executor and therefore can not contend that he was not executor before he put the will on

record.

this, and he gave over his part to H. K. Palmer presumably to distribute.

The idea of the decedent was to permit his estate to be settled without going through court.

The Orphans' Court has power to brush aside technicalities and order done what ought to be done.

Brooks' Appeal, 102 Pa., 150.
Tyron v. Rittenhouse, 186 Pa., 137.
Watt's Estate, 158 Pa., 1.
Oddfellow's Bank's Appeal, 123 Pa.,

356.

Common Pleas--Lan

Assigned Estate of Owen H. Wright and Wife.

Assigned estate-Preference of judg ment-Crops-Attorney fee-1ct of June 4, 1901, P. L., 404.

321.

An attorney's fee, which was not included in the amount due on a judgment as liquidated on scire facias against an assignor, can

The decree entered by the Orphans' Court is abundantly sustained by the circumstances of the parties and the evidence introduced. The receipt by the appellant of the money from his father shortly before the death of the latter is not disputed nor is there any controversy in regard to the allegation of Mrs. Stigelman that the money so received was taken possession of by the appellant and disbursed by him among all of the persons entitled thereto except her. The will of the decedent was probated and letters testamentary thereon were issued to Emanuel R. Palmer and the appellant who were named as executors in the will. Henry K. Palmer managed the business and paid out the fund. The court refused to credit the appellee's statement that his father turned the money over to him and his brother for the purpose of defeating a claim asserted against the father and the action of the court in so doing is not open to criticism. The weight of the evidence is in favor of the appellee's contention that the money was received by the sons as the property of their father to be distributed after his death among his heirs and nothing disclosed in the case in the argument of the learned counsel for the appellant would justify a reversal.

The decree is affirmed.

estate.

of Lancaster County. Trust Book No. Exceptions to auditor's report. C. P. 22, page 219.

H. Edgar Sherts and II'. U. Hensel, for assignees.

H. Edgar Sherts, for exceptions. II'. C. Rehm and B. F. Davis, contra. The auditor, M. G. Schaeffer, reported as follows:

From the records and evidence submitted to the auditor, the following facts are found: On April 9, 1912, Owen H. Wright and wife, of the Township of Little Britain, Lancaster County, Pennsylvania, he, the said Owen H. Wright, being engaged in the occupation of farming in said Township, made an assignment for the benefit of his creditors to D. E. Helm, of East Drumore Township, Lancaster County, Pennsylvania. the said deed of assignment was recorded in the Recorder's Office of Lancaster County in Deed in Trust Book Vol. 6, page 533; that subsequently, at a meeting of the creditors of the said Owen H. Wright, A. S. Harkness, of Quarryville, Pennsylvania, was elected an additional assignee and an undivided interest in said assigned estate was conveyed by the said D. E. Helm to the said A. S. Harkness, by deed dated the 13th day of May,

The effects of the said Owen H. Wright and wife consisted of a farm in Little Britain Township, and a half interest in a lot of land in the Borough of Quarryville, and certain personal property, which was duly inventoried and appraised and filed in the Prothonotary's Office of Lancaster County on the 15th day of May, A. D. 1912. The account in this estate was filed in the Prothonotary's Office and advertised and confirmed nisi June 16, 1913, which account shows a balance in the hands of the accountant for distribution of Two Thousand Sixty and 23/100 Dollars ($2,060.23). A list of claims sworn to were filed with the assignees under the provisions of the Act of 1901. The balance in the account is the net proceeds from the sale of real estate and personal property and about Three Hundred Hundred Rollars ($300) of this balance is the net income from the farm after it was in the possession, control and management of the assignees. All claims presented at the audit and all claims filed with the assignees by the various creditors are admitted by the assignor to be correct and the same are due and owing by him.

Harry R. England was the holder of an original judgment entered against the said Owen H. Wright to April Term, 1907, No. 327. On this judgment a scire facias was issued to August Term, 1912, No. 30, and on June 21, 1912, judgment was entered on said scire facias in favor of the said Harry R. England and against Owen H. Wright for Four Hundred and Thirty-four Dollars (434). The costs on the said scire facias to August Term, 1912, No. 30, amount to Fifteen and 5/100 ($15.05) and the original entry of judgment One and 38/100 Dollars ($1.38). The original judgment authorizes and empowers the entry of the judgment for the sum of Four Hundred and Fifty Dollars ($450.00), in any Court of record in any state with five per cent attorney fee and waives all exemption laws of any state.

A short time before Owen H. Wright and wife made their assignment for the

livered to T. R. Ankrim a judgment note dated April 3, 1912, for Six Hundred Seventy-four and 25/100 Dollars ($674.25), entered in the Court of Common Pleas of Lancaster County on April 4, 1912, to January Term, 1912, No. 829. On this judgment a fieri facias was issued on April 4, 1912, and the sheriff, by virtue of said writ, levied on all the personal property of the said Owen H. Wright included in the inventory filed in this assigned estate.

On March 28, 1912, Owen H. Wright also executed and delivered to Elwood Webster a judgment note for Seven Hundred and Thirty Dollars ($730), entered in the Court of Common Pleas of Lancaster County to January Term, 1912, No. 409, on the 29th of March, 1912. This judgment was subsequently assigned to T. R. Ankrim. On this judgment a fieri facias was issued on March 30, 1912, to April Term, 1912, No. 50, and the sherift, under said writ, levied on the personal property of Owen H. Wright, as contained in the inventory and appraisement filed by the assignees in this estate.

On the judgment of Harry R. England a rule was granted to show cause why the executions of Elwood Webster and Thomas R. Ankrim, above referred to, should not be stayed and in obedience to the said petition the Court of Common Pleas on April 8, 1912, granted a rule to show cause and stayed the executions of the said Elwood Webster, to April Term, 1912, No. 50, and of T. R. Ankrim to April Term, 1912, No. 54, without prejudice.

The net proceeds from the sale of the real estate, now being distributed, is more than sufficient to pay the judgment of the said Harry R. England, together with interest to the date of the absolute confirmation of the assignees' sale on March 11, 1913, and more than sufficient net income from the operation of said farm by the assignees is on hand to pay the balance of the interest due on said judgment. The judgment of Harry R. England was, of course, entered more than four months previous to the date of the aforesaid assignment.