Appeal, 116 Pa., 490), and the question was, did Franklin Hinkle, M. D., under his wife's will take an absolute or a life interest; and that is the question now before us. The Supreme Court decided that it was a life interest. By a single sentence in the will of Anna M. Hinkle an interest in her "real, personal or mixed" estate was transmitted to Franklin Hinkle, M. D. All that went to him was given in the same way: real, personal or mixed" property "to have and to hold . . . during his life." When the question was raised as to his interest in a part the Supreme Court answered that it ended with his life. Only personalty was under consideration, but more reason and authority is there why it might have been understood that an absolute gift had been intended than if it had been realty. The power vested in him "to sell or dispose" of the gift during his life is clearly defined by the clause immediately following" hereby giving him full power to convey the same or any part thereof and make good and sufficient title and conveyances therefor." If the word "dispose has any independent significance, the clause just quoted distinctly disassociates it from real estate. The real estate may be disposed of only by selling. The question is substantially res judicata, and the rule is made absolute. Costs to be paid out of the estate of Anna M. Hinkle, deceased.

Estate of Catherine E. Beecher, Deceased.

Wills-Direction to sell real estate.

Where a testatrix in her will provides that her real estate be sold, without directing who should sell it, the court will, under Sec. 12 of the Act of February 24, 1834, P. L. 73, order such sale by her executor, although other parties file an answer claiming that the title is in them.

"An appeal to the Court to apply the statutory provision intended to supply the testamental lapse operates to fulfil the power emanating from the testatrix."

Rule to issue order of sale. O. C. of Lancaster County. October Term, 1913, No. 47.

Harnish & Harnish, for estate and rule.

Bernard J. Myers, contra.

October 30, 1913. Opinion by SMITH, P. J.

Catharine E. Beecher by her will directed to be sold, after the death of her husband, “ all the several lots, pieces and parcels of ground, with the improvements and appurtenances, located in the Village of Bainbridge and Centerville, in Conoy Township, Lancaster County, Pa.." which she derived derived" from her father, Abraham Brecht, "by devise, or from his estate by purchase ". No power to sell was given by her by name or by description," but it is deemed to have been given to her executor to be exercised under the control of the Court as provided by Section 12 of the Act of February 24, 1834. P. L., 73. By virtue thereof Amos G. Hamaker, executor of the will of Catharine E. Beecher, deceased, petitioned for a rule to show cause why an order of sale should not issue. An answer was filed in behalf of Franklin H. Herst and Abram Hall denying title in petitioner's testatrix in "lots numbered on the plan of town of Bainbridge by numbers 53, 54, 55. 56, 95, 96, 97 and 98, being tracts No. 3 and No. 5 as set forth in the petition and averring title to the same in themselves.

An issue is thus raised which is not within our province to meet. It follows that the testamentary power to sell, sustained by the legislative provision, may not be reduced, but it does not follow that the respondents' rights are abridged. Had the testatrix named the executor of her will as the one in whom the power to sell reposed, could he have been prevented from offering the real estate to sale? An appeal to the Court to apply the statutory provision intended to supply the testamental lapse operates to fulfil the power emanating from the testatrix. By granting an order of sale the Court only declares an enacted interpretation of the testatrix's intention. The respondents have their remedy by suit in ejectment, and if they are able to lend

support to their averments one who buys the land the title to which is disputed does so with an added risk, notwithstanding the sale has the sanction of the Court. The rule is made absolute, and the order is made permitting Amos G. Hamaker, executor of the will of Catharine E. Beecher, to sell "all the several lots, pieces and parcels of ground, with the improvements and appurtenances, located in the village of Bainbridge and Centerville, in Conoy Township. Lancaster County, Pa.," which the testatrix "derived" from her "father, Abraham Brecht, by devise, or from his estate by purchase ". Costs to be paid by respondents.

Common Pleas--Taw

Riordan v. West Coast Smelting and

Refining Co.

Corporations Foreign corporation Registration-Agent-Service of process-Act of June 13, 1836, P. L. 569 -Foreign attachment.

The fact that a defendant company has an office in Pennsylvania, and the fact that it has registered as a foreign corporation entitled to do business in Pennsylvania and has made the secretary of the commonwealth its agent in every county of the state to accept service of process, do not exempt said company from the provisions of the act of June 13, 1836, P. L., 569, which provides that a foreign attachment can issue against a foreign corporation.

Rule to quash writ of foreign attachment. C. P. Washington Co. August Term, 1913, No. 244.

and the præcipe filed in this case institutes an action such as is provided for by that act of assembly. The præcipe reads as follows:

"A. V. LEWIS, Esq.,

'Issue writ of foreign attachment in assumpsit in the above entitled case, wherein John J. Riordan, Jr., is plaintiff and West Coast Smelting and Refining Company, a corporation existing under and by virtue of the laws of the state of Arizona, is defendant. Returnable to the third Monday of August, 1913. Bail to dissolve, $17,000.

"Attach all and singular the goods and chattels, lands and tenements, moneys, credits and interests of the defendant in the hands, possession and control of the First National Bank of Canonsburg, and summon the said bank as garnishee."

The sheriff's return upon the writ that was issued in pursuance of this præcipe is as follows:

"Attached, as within commanded, all and singular the goods and chattels, moneys, credits and interests of the defendant in the hands, possession and control of the First National Bank of Canonsburg, a national banking corporation located within and doing business in this county, and summoned it, the said bank, as garnishee, by going to its banking rooms and place of business, at Canonsburg, Pa., on Aug. 7, 1913, and then and there so declaring to John L. Cockins, the president of said bank, in the presence of H. L. Cockins and John C. Morgan, two credible persons of the neighborhood, and then and there making known to John L. Cockins, its said president, the contents of the within writ and giving him a copy of the same.

Braden & Campbell, for garnishee.

Irwin & Wiley, for defendant.

It is this writ which the defendant by this rule seeks to have quashed.

The plaintiff filed an answer to the rule granted to quash, which is in the

By the provisions or on act of assembly approved June 13, 1836, P. L. 569, 580. a statutory action known as a writ of foreign attachment was created,

"And now, to wit, this Sept. 22, 1913, comes the plaintiff in the above entitled cause why the writ of foreign attachment heretofore issued in the case should not be quashed, says:

"First. That the facts alleged in the

plaintiff must give before selling the property if the defendant does not ap

pear.

Section 44 of the act provides as follows: "A writ of attachment, in the form aforesaid, may be issued against any foreign corporation, aggregate or sole, and the proceedings aforesaid may be had thereon, so far as the case will permit." The question for decision is this: Does the fact that the defendant company has an office at Pittsburgh, in the state of Pennsylvania, in charge of an agent, and the fact that it has registered as a foreign corporation entitled to do business in Pennsylvania, and has made the secretary of the commonwealth its agent in every county of the state to accept service of any writ that may be issued against it, exempt it from the provisions of the act of 1836, which provides that a foreign attachment can issue against a foreign corporation? We The plaintiff had a choice of two remedies against the defendant: either an action in assumpsit by summons, which is a personal action against the defendant, or an action in foreign attachment, which is an action in rem. He chose the latter, and to institute that action he was not required to bring the defendant into court, and therefore the writ of attachment which he issued was not to be served upon either the agent in charge of the office at Pittsburgh or on the secretary of the commonwealth as the agent of the defendant. It is also clear that the fact that the defendant had an agent in Pittsburgh doing business for it in this state, and the fact that

think not.

it had an agent at Harrisburg in the person of the secretary of the commonwealth upon whom any writ issued against it in this state could be served, does not change its character as a foreign corporation. The very fact that its charter was issued by Arizona makes it a foreign corporation, regardless of the fact of where it may do business.

tions showing that it is irregular and void; and there being nothing irregular on the face of these proceedings, and there being no testimony before the court showing any irregularity in the issuing of the writ, the rule must be discharged.

Again, it appearing that the defendant has voluntarily entered a general appearance and filed an affidavit of defence and brought itself within the provisions of § 64 of the act of 1836, it is estopped from denying on this motion the validity of the attachment of the money in the First National Bank of Canonsburg, under the very provisions of the section which allows it to enter an appearance. And here it is proper to observe the distinction between a motion to quash the writ and a motion to dissolve the attachment. They are entirely distinct proceedings. An attachment is dissolved, first by the defendant giving bail in double the amount in controversy, or on a rule to show cause of action in which it is made to appear that the plaintiff has no cause to sustain his action.

And now, Oct. 3, 1913, this rule came on to be heard upon petition and answer, whereupon, upon due consideration, it is ordered, adjudged and decreed that the same be and it is hereby overruled.

Quarter Sessions.

In re State-Aid Highway in Exeter
Township.

Highways-State-aid road-Act of May 31, 1911-Procedure-Power of supervisors-Jurisdiction of court.

Under the Act of May 31, 1911, P. L. 468, the court has no power to compel township supervisors to sign an agreement with the State Highway Department to construct a state-aid road, where the supervisors, after application to the department and favorable action thereon, find the construction of the road inadvisable.