option "as soon as you (Pollock) are in a position to make a good and sufficient deed therefor to me in fee-simple." No deed therefor was tendered to Coursin by Pollock until February, 1897, almost a year after the filing of the master's report in the equity case hereinafter referred to. Lowry denied Pollock's right to annul the agreement, refused to accept the $100, and on January 16, 1893, tendered to Pollock in cash the sum of $4,900; demanded a deed and offered to execute and deliver a bond and mortgage for the deferred payments in accordance with the contract of August 8, 1892; Pollock refused to accept the money and make a deed. On April | 25, 1893, the defendants herein filed a bill in equity in the Court of Common Pleas No. 1, at No. 393 June Term, 1893, against Pollock, alleging they had become the purchasers of his farm under the agreement of August 8, 1892, and praying for specific performance. That case was referred to master, who recommended a decree dismissing the bill, giving three reasons therefor: Fourth. There can be no recovery here for any damages resulting from the filing of the bill; and Fifth. If the plaintiff had any claim against the defendants by reason of any action of theirs, he was fully advised in relation to the facts prior to or during the pendency of the bill in equity; it was then his duty to have his whole cause adjudicated in the proceedings in equity, and he cannot now be heard to raise this question, because when equity acquired jurisdiction it acquired jurisdiction for all purposes. A nonsuit was granted and the motion to take off same is now before us. The plaintiff's claim is that the agreement of August 8, 1892, was simply a contract of agency to sell the farm, while the defendants contend that it was intended to be an option. On its face the agreement is undoubtedly a contract of agency, but it seems to us that it was considered by both Pollock and Lowry as an option. The testimony of Pollock throughout shows great anxiety on his part to dispose of his farm to any person who would pay his price therefor. In 1890 a contract to sell the farm was given to Lowry in which the price was fixed at $12,000; some time after the expiration of that contract another was given in which the price was fixed at $12,500. No purchaser was obtained under these contracts, and a third agreement, that of August 8, 1892, was executed by Pollock and Lowry. Under the last agreement Lowry and the other defendants (1) Because the terms of the sale were never fully understood and agreed upon by the parties; (2) because the terms of a contract of sale were not reduced to writing and signed by the party to be charged, and (3) because the plaintiffs are not in court with clean hands." The master's report was approved by the court, and the bill dismissed at plaintiff's costs. Thereupon Pollock brought this suit for damages. At the trial, after hearing plaintiff's evidence, defendants' counsel asked for a judg-were exceedingly active in their endeavors to ment of compulsory nonsuit for the following reasons: First. As to John W. Stewart and J. R. Wylie because there is no evidence that they conspired with any one to defraud. Second. Also for a nonsuit as regards all of the defendants, because, whatever may be the construction placed on the agreement of 8th August, 1892, it was revoked by the plaintiff on the 9th of January, 1893. Up to that time there had been no sale of plaintiff's farm; all that existed at that time were negotiations. Lowry was not bound to inform plaintiff of these negotiations any more than he did, either before or at the time when he revoked the contract; nor did the plaintiff make any inquiry as to any of the details in relation thereto. Third. There is no evidence as to any damage at all to the plaintiff, prior to the filing of the bill. In fact, he had contracted to sell to Coursin for $16,500, and presumably if he had, under his contract, tendered his deed within a reasonable time after the decree, he could have collected that sum. procure a purchaser; Lowry advised Pollock from time to time that he expected to consummate the sale, and upon several occasions told him that if the prospective purchasers failed to purchase, "we will take it ourselves." Surely Pollock understood by that language that Lowry and some one associated with him contemplated becoming purchasers of the farm under certain contingencies at the price named in the contract of August 8th. He also had conversations with Stewart about the sale and the terms of payment, and at Stewart's request notified the tenant to quit, and at the trial of this case admitted substantially that it made no difference to him who became the purchaser, so that he received $13,000. While we concur in the conclusions reached in the equity case, that the evidence was not sufficient to sustain a decree for specific performance, we are unable to find from the facts adduced by the testimony and the reasonable inferences deducible thereform anything that indicates that the defendants "falsely and maliciously conspired, combined, confederated and agreed to cheat and defraud plaintiff." Lowry thought he had an option on the farm and was using his best endeavors to sell the property, of course at an advance above the price named in his option, and would probably have been successful had not his authority to sell been revoked by Pollock. That Lowry's construction of the agreement of August 8, 1892, was erroneous is undeniable, but | his error in that respect did not amount to fraud, and what his liability would have been to Pollock in the event of a sale to Chaudon and Crawford at $250 per acre does not arise in this case. After a careful examination of the testimony and the authorities submitted by counsel, we are still of the opinion that the plaintiff failed to make out a case against defendants. The motion to strike off the nonsuit is therefore overruled. For plaintiff, Crumrine & Patterson. Opinion by SHAFER, J. Filed May 4, 1900. This case comes into court as an appeal from a justice of the peace in proceedings begun before him by attachment under the act providing for the collection of debts against non-resident debtors, the amount of debt claimed being $160, and the defendant has procured a rule to show cause why the proceedings should not be quashed for want of jurisdiction in the justice. It is claimed by the defendant that the Act of July 7, 1879, does not extend the jurisdiction given to justices by the Act of May 8, 1874, above referred to. The Act of 1874 gives justices jurisdiction to issue foreign åttachments for amounts not exceeding $100, in a manner substantially the same as that in which such a writ may issue from the Common Pleas, except that there is no provision that the writ shall not issue if the defendant be in the county at the time. The Act of 1879 provides that justices shall have concurrent jurisdiction with the Common Pleas in all actions arising from contracts for amounts not exceeding $300. It has been held by the Supreme Court that attachments under the fraudulent debtors' act are within the purview of the Act of 1879, and that a proceeding by attachment for the collec. tion of a debt is an action within the meaning of this act: Jacoby v. Shafer, 105 Pa. 610. The present question, however, has never been passed upon by that court. Two Courts of Common Pleas have held that the jurisdiction is not extended by the Act of 1879: Ross v. Miller, 14 W. N. C. 353; Pagett v. Truby, 1 C. C. 596; and one has held that it was so extended: Ormsby v. Grinolds, 18 Phila. 658; the opinion in the latter case being rendered by Mr. Justice WILLIAMS when he was president of the Common Pleas of Tioga county. The whole question turns on the meaning of the expression "concurrent jurisdiction." The defendant contends that because the justice has jurisdiction in a foreign attachment, even where the defendant is at the time within the county of Allegheny, the jurisdiction is not concurrent. It does not seem to make any difference what may be the case under some other circumstances than those before us. The only question really is, could the present action have been brought in the Common Pleas with the same effect as before the justice. The record here shows affirmatively that the defendant was not in the county when the writ Pleas would not have had jurisdiction of this issued. No reason appears why the Common action if the suit had been brought there instead of before the justice; nor would there have been any difference in the proceedings from those in this case, except those differences of time of return, etc., which occur in all actions before justices and which do not in any way affect the jurisdiction. This is, therefore, an action arising from contract, of which at the time of the passage of the Act of 1879 the Common Pleas had jurisdiction, and of which justices also had jurisdiction if the claim was not over $100. The object of the Act of 1879 plainly was to raise the limit of the jurisdiction already possessed by justices from $100 to $300. It is not necessary to discuss the effect to be given to the words of the Act of 1879 in case jurisdiction should be claimed for a justice in some form of action on contract of which he would have had no jurisdiction at all before the Act of 1879, if any such exists. In this case the justice had, before the act, precisely the same jurisdiction as this gives him, except as to the amount. We are of opinion, therefore, that the justice had jurisdiction in this case, and the rule is discharged. For plaintiff, Thomas C. Gabler. Orphans' Court, ALLEGHENY COUNTY. In re Estate of WILLIAM MOORE, Sr., Dec'd. Separation of husband and wife—Right of wife to dower. An agreement between husband and wife to live separate and apart during the rest of their lives, does not deprive the widow of her right to dower after the death of her husband, unless the wife in such agreement expressly or inferentially releases her right to dower. 1. George Bowman presented a claim for wages for five weeks and three days' labor at In such a case it is incumbent on those who resist the $5 per week. The claimant, without objections right of the widow to dower to show that she, with a full knowledge of her rights to dower, released it. No. 48 April T, 1900. Audit of executor's account. MCILVAINE, P. J., 27th Judicial District, specially presiding. ADJUDICATION. From the testimony submitted at the hearing of this audit the court finds as to the facts, and holds as to the questions of law raised and involved, as follows: 1. AS TO THE ACCOUNT. The account of the executor of the will of William Moore, Sr., has been duly confirmed as filed, and the questions before the court are questions of distribution. The account is a partial one, and the balance for distribution was derived from personal property. The amount for distribution is $12,787.53 belonging to the estate and $199.20 belonging to the devisees of real estate and the widow. 2. AS TO THE DISTRIBUTEES. The estate is solvent, and there are four classes of distributees, first, the Commonwealth; second, creditors; third, the widow; and fourth, legatees. THE COMMONWEALTH. The testator's legatees are not lineal descendants, and the collateral inheritance tax on the fund now for distribution not having been paid will have to be deducted from the shares of those legatess whose shares are subject to this tax. CREDITORS. The following creditors presented claims against the testator which were not contested to his competency, was examined as a witness, and on his testimony his claim of $27.50 is allowed. 2. Annie Houge presented a claim for services as housekeeper to the deceased, from May 3, 1896, to July 25, 1896, and from October 15, 1896, to January 4, 1897, twenty-eight weeks, at $4 per week, making $112, and "as nurse from July 25, 1896, to October 25, 1896, twelve weeks, at $15 per week," $180, on which she admits a credit of $98.75, leaving a balance of $193.25 unpaid. The objections to this claim is two-fold: first, that Miss Hogue has been paid for her services, and second, that her charges for services as a nurse are not warranted by the facts in the case. There can be no doubt under the evidence that Miss Annie Hogue was employed and rendered services as a housekeeper for the decedent, May 3, 1896, to January 4, 1897, a period of thirty-five weeks and one day (not forty weeks, as stated in Exhibit No. 12), and that under the contract she made with Mr. Moore, when she entered his employ, she is entitled to receive for this service $4 per week. There can also be no doubt that Mr. Moore was sick for a part of the time that Miss Hogue filled the position of housekeeper, perhaps as much as twelve weeks. But the testimony does not satisfy us either that she had a contract with Mr. Moore, that she was to be paid $15 per week during this time in place of $4 per week, or that she took the place of a professional nurse, and that her services were worth what she claims. The declaration of Mr. Moore, when Miss. Hogue talked of leaving, that "if you will stay I will give you any, thing you ask; I will give you $15 or $20 a week, I don't care what," testified to by Caroline and Cora Hogue, is not sufficient to establish a contract to pay $15 per week for twelve weeks. In the first place the testimony does not show when that declaration was made, whether before the sickness or sometime after the testator took sick; and in the next place it is evident that the declaration was only Mr. Moore's way of expressing his great desire that Miss Hogue should not leave him, and nothing more. It was not a business proposition then and there accepted and acted upon such as constitutes a contract. There can be no doubt that Mr. Moore's sickness increased Miss Hogue's work, perhaps doubled it; and that she was kept up longer at night than when he was well. But he had other nurses, and we think a fair compensation to Miss Hogue during this time would be to double her wages as housekeeper; that is, to | allow her $4 a week for the full thirty five weeks, and one day, and $4 a week for extra work (or double time) for twelve weeks during Mr. Moore's sickness, or in all $188.57, subject | to the credit of the payment of $98.75, which is admitted, leaving now due her $89.82. There was an attempt to show that Miss Hogue was fully paid, but we think, taking all the testimony in the case, that she is entitled to the above balance of $89.82, and we so find. 8. Peter Trenhauser presents a bill for boarding, buggy hire, various sums expended for the testator, and for Mrs. Trenhauser's services for nursing the decedent for fourteen weeks, at $20 per week, aggregating in all $610.35. There is no doubt under the evidence that Mr. Moore roomed and boarded with the claimant from April 11, 1898, to March 5, 1899, the date of his death, and under the evidence he has, in our opinion, sufficiently proven his claim, as set out in Exhibit No. 13, to justify its allowance, except as "to nursing from November 29, 1899, to March 5, 1899, fourteen weeks, at $20 per week." That item ought not to be allowed in full. The evidence shows that Mr. Moore was sick less than five weeks, in place of fourteen. We think $100 would be ample pay for the extra care that was given Mr. Moore, who was an inmate of this house and was paying while he was sick the usual rates for room and board; this would make Peter Trenhauser's bill, as allowed, $430.25, in place of $610.35. As a set off against this claim we find that Peter Trenhauser owes the estate of William Moore, Sr., on a note, $100, with interest from January 5, 1898 (Exhibit No. 15), and $5.73 for hay, and $20 borrowed money. These sums, with the interest on the $100 note | from January 5, 1898, to the date on which the decree of distribution shall be made, should be deducted from $430.35, to ascertain the amount due the claimant. The items of set off claimed by the exexcutors, other than those just indicated, in our opinion were not supported by sufficient proof to be allowed. 4. William A. Willock presents a claim for services rendered in the collection of a judgment of William Moore, Sr., against William H. Gutelius. The evidence in support of this claim shows that the claimant was on the record the assignee of William Moore, Sr., and that the claim against Gutelius was collected in his name, but the money was turned over to Moore, the legal plaintiff. It also shows that at the five or six hearings before the referee, on the rule to open the judgment, Mr. Willock was accompanied by Mr. Moore, who was feeble, and to some extent, at least, looked after such matters as it was necessary for the plaintiff in that litigation to look after. It is not apparent why Mr. Moore had this note assigned to Willock, he still remained the owner of it, or why he required Willock to accompany him to these hearings, but notwithstanding that, we think that a prima facie case for compensation has been made out and that the allowance asked for is not unreasonable. The claim as made in Exhibit No. 7 is allowed. WIDOW. Mrs. Mary Moore claims that she is the widow of the decedent, and that as such is entitled to her share of his estate under the intestate laws of the Commonwealth. The testimony shows that the claimant and the testator, William Moore, Sr., were married on the 29th of September, 1879, and there is no evidence or claim that they were ever divorced. On July 3, 1899, within four months after William Moore, Sr., died, she gave a written notice to the register of wills and to the executors of the will of her husband, "that she, as widow of William Moore, Sr., late of Baldwin township, Allegheny county, deceased, claimed her share of the real and personal property of said decedent against the will of said William Moore, Sr., deceased." The testator in his will provides in the 9th paragraph thereof as follows: "Ninth. My executors shall put $3,400 of my money on interest and shall pay out of the interest monthly to my wife $16.66 as long as she lives." On the 18th day of October, 1895, William Moore, Sr., and Mary Moore, his wife, then living separate and apart, executed a paper, of which the following is a copy: "This Indenture, of three parts, made the 18th day October, A. D. 1895, between William Moore, Sr., of the township of Baldwin, in the county of Allegheny, State of Pennsylvania, of the first part, and Mary Moore, his wife, of the second part, and W. H. Gutelius, trustee of the said Mary Moore, of the third part. "Whereas, divers disputes and unhappy differences have arisen between the said party of the first part and his said wife, for which reason they have consented and agreed to live separate and apart, from each other during their natural lives, therefore this indenture witnesseth: That the said party of the first part, in consideration of the premises, and in pursuance thereof, doth hereby covenant, promise and agree to and with the said trustee, and also to and with his said wife, that it shall and may be lawful for her, at all times hereafter, to live separate and apart from him; and that he shall and will allow and permit her to reside and be in such place and places, and in such family and families, and with such relations, friends and other persons, and to follow and carry on such trade or business, as she may from time to time choose or think fit to do; and he shall and will not at any time compel her to live with him, or molest, disturb or trouble her for living separate and apart from him, nor sue, molest or trouble any other person whomsoever for receiving, enter taining or harboring her; and that he will not, without her consent, visit her or knowingly enter any house or place where she shall dwell, reside or be; nor shall or will, at any time here after, claim or demand any of her money, jewels, plate, clothing, household goods, furniture or stock in trade, which she now hath in her power, custody or possession or procure, or which shall be devised or given to her, or that she may otherwise acquire; and that she shall and may enjoy and absolutely dispose of the same, as if she were a feme sole and not married; and further, that said party of the first part shall and will well and truly pay or cause to be paid unto her, his said wife, for and towards her better support and maintenance, the yearly sum of two hundred ($200) dollars in monthly payments of $16.66 per payment, free and clear of all charges and deductions whatever, for and during her natural life, upon the first day of each month in each and every year during her natural life. Said payments to be made through A. W. Duff, Esq., 414 Grant street, Pittsburgh. And the said trustee, in consideration of the sum of one dollar to him duly paid, doth covenant and agree to and with the said party of the first part to indemnify and bear him harmless of and from all debts of his said wife, contracted, or that may be hereafter contracted by her or on her account; and if the said party of the first part shall be compelled to pay any such debt or debts, the trustee hereby agrees to repay the same on demand to the said party of the first part, with all damage and loss that he may | sustain thereby. "In testimony whereof, the said parties have hereunto set their hands and seals, the day and year aforesaid. "WILLIAM MOORE, Sr., [SEAL.] "MARY F. MOORE, [SEAL.] "W. H. GUTELIUS, [SEAL.] "Signed, sealed and delivered in the presence of "Witnesses as to Coslett, signature of Mary G. Moore and W. H. Gutelius. "ELLA P. COSLETT. "The above change of dates from May 10 to Oct. 18, and of amount from $350 to $200, made before execution. "A. W. DUFF." The monthly payments provided for in this agreement were made regularly by William Moore, Sr., up to the time of his death. Between the date of the death of William Moore, Sr., and July 3, 1899, the date when the widow gave written notice that she refused to accept under the will, she received nothing from the executors. There is no contention here that the claimant, Mary Moore, was not the undivorced wife of the testator, William Moore, Sr., at the date of his death, nor is it contended that she has not given sufficient evidence of her election not to take under her husband's will. The sole question for the decision of the court is, "do the written articles of separation executed by the parties on October 18, 1895, extinguish the widow's right to take under the intestate laws of the Commonwealth, the husband having provided in his will for the continuance of the payment of $16.66 monthly to her during her natural life, the same amount paid her under the agreement of separation for her support and maintenance." It cannot be questioned that a husband and wife living apart may enter into articles of separation on such terms as will exclude the survivor from participation in the distribution of the estate of the one that dies first: Hutton v. Hutton, 3 Pa. 100; Dillenger's Appeal, 35 Id. 357; Scott's Estate, 147 Id. 102. But it does not follow that because they live apart in pursuance of an agreement, or without an agreement, that the widow loses her right to share in the distribution of her deceased husband's estate: Nye's Appeal, 126 Pa. 341 |