ties approved by him." It is claimed that the second bond was given and accepted by the judge of probate in substitution for the bond in suit, and that the defendants were thereby discharged from liability for any subsequent default of the principal. In the absence of statutory proceedings for discharging the sureties, in view of the existence of the statute quoted, the filing of the new bond and its acceptance and approval by the judge of probate cannot have the effect by implication to supersede the original bond. Both bonds were valid, and constituted cumulative and concurrent security for the entire management of the estate. Governor v. Gowan, 25 N. C. 342; Hutchcraft v. Shrout's Heirs, 1 T. B. Mon. (Ky.) 206, 15 Am. Dec. 101; Loring v. Bacon, 3 Cush. 465; State v. Mitchell, 132 Ind. 461, 32 N. E. 86.

The conditions of the guardian's bond as prescribed by statute are as follows: “(1) For the faithful discharge of his trust. (2) To render a true and perfect inventory of the estate, property, and effects of his ward, within the time limited by law. (3) To render a just and true account of his guardianship when by law required. (4) At the expiration of his trust, to deliver all monies and property, which, on a final and just settlement of his account, appear to remain in his hands."

It is contended by the defendants that the action was prematurely brought because the principal was not cited to settle the account of his guardianship. This, in the absence of special circumstances making a citation impossible or useless, is the legal prerequisite of a right of action against sureties on a guardian's bond. It is the proper mode of instituting a judicial inquiry in order to ascertain the liability of the sureties. It has been so decided in this state. Bailey v. Rogers et al., 1 Me. 186; Nelson v. Jaques, 1 Me. 139, following Massachusetts decision, Dawes v. Bell, 4 Mass. 106. But it is admitted by the agreed statement of facts that the principal on this bond resides "beyond the limits of the state, being now without the state, in parts unknown," and that he has "embezzled and converted to his own use all the property belonging to his ward." There can be no legal requirement of a citation which is impossible, and by reason of the circumstances of this case it is wholly unnecessary. The whole sum of $1,100, which came into the hands of the guardian as a single item, has been converted to his own use, and an accounting could not possibly change the facts upon which the liability of the sureties depends; and the party in interest will not be compelled to resort to this preliminary before bringing suit upon the bond. Long v. Long, 142 N. Y. 545, 37 N. E. 486; Sage v. Hammonds, 27 Grat. (Va.) 651.

It is shown by the agreed statement of facts that there are also breaches of the first and third conditions of the bond. The principal "has used up and converted to his

own use all the money and property of said estate; he had not rendered a true and perfect inventory of the estate, property, and effects of his said ward within the time limited by law nor any inventory thereof." This gives the plaintiff in his official capacity a right of action, and, upon judgment, the right to have execution issue in his name for so much of the penalty of the bond as may be adjudged on trial to be just and true to the person for whose use the action is brought. Fuller v. Wing. 17 Me. 222; Gilbert v. Duncan, 65 Me. 469. There is clearly due to the ward, Lero F. Fairfield, the sum of $1,100 and interest.

Judgment in favor of the judge of probate for the penal sum of the bond. Execu tion to issue in his name for $1,100 and interest from the date of the writ, December 22, 1903, for the use of Lero F. Fairfield.

(100 Me. 98)

FALL V. FALL. (Supreme Judicial Court of Maine. March 18, 1905.)

ADVERSE POSSESSION-EVIDENCE-DECLARATIONS IN DISPARAGEMENT OF TITLE. 1. The declarations of a person under whom title is claimed are receivable against the suecessor, if at all, on the theory that there is sufficient identity of interest to render the statements of the former equally receivable with the admissions of the latter.

2. The most common instances in which such declarations have been admitted in evidence are those in which the declarants were in possession, being explanatory of their possession.

3. Titles of real estate being matters of record, sound policy requires that they should not be affected by mere declarations of the parties, and that declarations in disparagement of titles should be shown to have been made in good faith.

4. It is indispensable to the admissibility of declarations against a tenant that he should be the declarant's successor in title; also that they be in reference to facts provable by parol, and that they tend to establish such facts.

5. Declarations which do not bear upon the quality of any possession of the declarant, and have no reference to the identity or location of boundaries or monuments, or to any matter concerning physical conditions or use, are properly excluded; and, where their sole purpose is to show that the title which the record showed to exist did not in fact exist, they are not admissible, whether the declarant was in or out of possession, or is living or dead. (Official.)

Exceptions from Supreme Judicial Court, York County.

Action by Charles W. Fall against Oscar E. Fall. Judgment for defendant, and plaintiff excepts. Overruled.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, SAVAGE. POWERS, and PEABODY, JJ.

William B. Pierce and George F. & Leroy Haley, for plaintiff. James A. Edgerly and William S. Matthews, for defendant.

PEABODY, J. This is a real action brought to recover possession of a lot of

woodland situated in Berwick, York county, Me.

The plea is the general issue.

The demandant offered evidence of the declarations of Mary Fall, made while she held the record title to the demanded premises, that she was not the owner of the lot described in the writ, and that the demandant was the owner. This evidence was excluded, and exceptions taken by the plaintiff, and the court ordered a nonsuit, to which the plaintiff also excepted. The case is before the law court on these exceptions with agreement on the part of the plaintiff's counsel that, if the rulings of the presiding justice in excluding the evidence offered are correct, there is no evidence to support the plaintiff's case, and the nonsuit is to be confirmed.

The land in question formerly belonged to Tristram Fall, the father of the plaintiff and defendant, who died in 1871. In 1866 he conveyed the premises to his wife, Mary Fall, the mother of the parties, by deed, which appears to have been recorded.

The demandant was a minor at the date of the conveyance to his mother. It was made to her at his request, and upon receiving the title she mortgaged the land for the purpose of raising money for the payment of the grantor's debts; and the demandant on becoming of age signed the mortgage note, and subsequently paid the same. The record title remained in Mary Fall until her death in 1898.

The demandant alleges in his writ that the defendant is in possession, and this the defendant by his plea admits. This possession is good against the plaintiff until he establishes a better title by affirmative evidence. He offers no deed of conveyance, but relies, according to his informal statement of title, upon the fact that he has occupied the demanded premises by "peaceable, continuous, adverse, uninterrupted possession of and dominion over said land; said possession being begun under color of title, and continuing for more than twenty years prior to the date of the plaintiff's writ." He testifies that he entered into possession in 1866, in the lifetime of his father, while he held the record title, and continued in possession until his mother's death in 1898. He offered in evidence the declarations of his father, Tristram Fall, in disparagement of his title, before he conveyed the real estate to his wife, Mary Fall. This evidence was excluded by the court and forms no part of the exceptions.

The demandant's alleged possession, to be available in acquiring title against the record title of Mary Fall, must have continued for 20 years. It is claimed that the declarations of Mary Fall, although made when she was not in possession of the premises, are admissible against her, and those in privity with her, in respect to the demanded premises, because in disparagement of her record title.

It is an established rule of evidence that the declarations of a person under whom title is claimed are receivable against the successor so claiming, if admissible at all, on the theory that there is sufficient identity of interest to render the statements of the former equally receivable with the admissions of the latter himself.

The most common instances in which declarations in disparagement of title have been held admissible in evidence are those in which the declarants are in possession, being explanatory of the nature of their possession. Possession being prima facie evidence of seisin in fee simple, a declaration qualifying it is admissible. 1 Greenleaf on Evidence, 109; Peacable v. Watson, 4 Taunton, 16; Marcy v. Stone, 8 Cush. 4, 54 Am. Dec. 736; Osgood v. Coates, 1 Allen, 77; Norton v. Pettibone, 7 Conn. 319, 18 Am. Dec. 116; Pickering v. Reynolds, 119 Mass. 111; Ware v. Brookhouse, 7 Gray, 454.

In the last case cited it was sought to introduce declarations of a deceased prior owner that he had title to the right of way in dispute. They were held inadmissible as self-serving declarations. The court say: "But there are, we think, the soundest reasons why such declarations should not be admitted. The first is that titles to real estate are matters of record, and wisely so, and that sound policy obviously requires that we should carefully guard against their being affected and impaired by mere acts in pais, and a fortiori by mere declarations of parties; secondly, that as to declarations made in disparagement of title and against the interest of the party, we have the evidence of their being made in good faith."

In Sullivan Granite Company v. Gordon, 57 Me. 522, Appleton, C. J., says: "In all the cases in this state and in Massachusetts in which declarations have been received, they related to the land in controversy, were made by the declarant while in possession, and were offered in evidence against him or those deriving title under him."

But the cases in which a party and his privies may be affected by his admissions are limited to those where the subject-matter of admission is subject to parol proof. The rule does not apply to matters which can only be proved by written evidence. 3 Phillips on Evidence, C. & H. Notes, 266; Keener v. Kauffman, 16 Md. 296; Dorsey v. Dorsey's Heirs, 3 Har. & J. 426, 6 Am. Dec. 506. In Jackson v. Cary, 16 Johns. (N. Y.) 302; Spencer, C. J., says: "Parol proof has never yet been admitted to destroy or take away a title." Wharton on Evidence, § 1156; Phillips v. Laughlin, 99 Me. 26, 58 Atl. 64.

It is indispensable to the admissibility of declarations against the tenant on the ground of privity in estate that he should be her successor in title to the demanded premises. It is claimed by the defendant that such privity of estate has not been shown in this case, but the exceptions expressly state that

"the defendant attempted to prove the declarations of Mary Fall, under whom the tenant claimed by will, while the record title was in her." Although the evidence reported does not show the source of the tenant's title, it is not in conflict with the statement in the exceptions. It is indispensable, also, that the declarations be in reference to facts provable by parol, and that they tend to establish such facts. In Phillips v. Laughlin, 99 Me. 26, 58 Atl. 64, supra, Wiswell, C. J., after a review and an analysis of a wide range of authorities cited, makes a carefully limited generalization, namely, "that such declarations against interest [namely, of a person while in possession of land] in regard to the nature, character, or extent of the declarant's possession, the identity or location upon the face of the earth of boundaries and monuments called for in the deed, or in regard to any matter concerning the physical condition or use of the property, which must be, from the nature of things, proved by parol, are admissible." But in the same case it was also held that "it is not competent to prove declarations made out of court by the predecessor in title of a party to an action in court, to the effect that a deed which appears to be sufficient in all respects, which is duly recorded, and which a purchaser has been led to rely upon as one of the necessary links in its chain of title, from the very fact of its being recorded, is not what it and the record of it purport to be."

In the case at bar the excluded declaration bore not upon the quality of any possession of the declarant, and it had no reference to identity or location of boundaries or monuments, or to any matter concerning physical condition or use. Its sole purpose was to destroy what was apparently an invulnerable muniment of title by deed and record, and to show that the title which the record declared did exist did not in fact exist. We think such declarations limited to such a purpose are not admissible, whether the declarant was in or out of possession at the time, or whether she is now dead or alive. The case comes within the doctrine of Phillips v. Laughlin, supra, for we conceive that there can be no real distinction in principle between the case of a tenant holding by inheritance and one holding by deed. In either case such declarations as the one in question are open to the same objection, namely, that they do not tend to prove any facts in disparagement or destruction of a record title which is provable by parol. Exceptions overruled.

of the testator had been paid, and that there were no claims against the estate, or any debtors to it, distribution should be made directly to the legatees, instead of to an administrator de bonis non cum testamento annexo.

Appeal from Orphans' Court, Lebanon County.

In the matter of the estate of Isaac Garman. Appeal by Cornelius Hauer, administrator, from a decree dismissing exceptions to report of auditor. Affirmed.

Argued before MITCHELL, C. J., and DEAN, FELL, MESTREZAT, and ELKIN, JJ.

Bassler Boyer, for appellant. Robert Adams, J. G. Adams, and J. H. Marx, for appellees.

ELKIN, J. At the argument counsel for appellant filed a motion to quash the appeal of Moses Gibble, administrator of Amanda Garman, deceased. Order to quash having been made, the record stands with the single appeal of the administrator de bonis non cum testamento annexo.

It is contended that the auditor and the court below erred in not awarding the entire balance shown by the account of Moses Gibble, administrator of Amanda Garman, deceased, who was the surviving executrix of Isaac Garman, deceased, to the appellant. Isaac Garman, the testator, died on April 27, 1897, having made a will disposing of his property. Amanda Garman and Aaron Spitler were named as executors. On October 8, 1897, the executors filed an account, after which Aaron Spitler was discharged; thus leaving Amanda Garman, widow, as the surviving executrix. She filed an account on August 19, 1899, showing that all the debts of the testator had been paid, and leaving a balance in her hands as surviving executrix and trustee under the provisions of the testator's will. On January 24, 1900, the executrix died, and Moses Gibble was appointed administrator of her estate. He then filed the final account of Amanda Garman, surviving executrix of Isaac Garman, deceased. The balance shown by this account is the fund for distribution.

Isaac Garman devised and bequeathed his entire estate to his executors in trust for certain purposes therein specified. It is not necessary to consider the provisions of the will in reference to the trust estate, because it is admitted that the trust has terminated, and that the fund is ready for distribution to the parties entitled to receive the same under the will or by operation of law. The only question for consideration is whether the fund now ready for distribution should be awarded to the legatees and distributees, or to the administrator de bonis non. The trust has terminated. The trust fund is ready for distribution. The court has jurisdiction of the subject-matter. The cestuis que trustent and all other parties in interest appear and ask that their respective shares

or interests be awarded to them. The auditor makes the awards, and the court approves the awards so made. Why is this not a correct procedure? Counsel for the appellant answers by saying the administrator de bonis non cum testamento annexo, under the provisions of section 31 of the act of February 24, 1834 (P. L. 78), is entitled to the whole fund. If this is the necessary construction of said act, then a peculiar result follows, for it means that the fund now ready for distribution in a court of competent jurisdiction-all the debts of the testator having been paid, and there being no debtors to or other claimants against said estate-must be awarded, not to the legatees and distributees, but to the administrator de bonis non appointed after these proceedings commenced. If the award is so made, then this appellant must file the same account in the same court, and the same court will be asked to make a distribution among the same parties. Certainly the provisions of said act relative thereto do not require such a meaningless thing to be done. There must be a finality to such proceedings, and in this case all that part of the estate ready for distribution should be considered as settled, and hence the provisions of section 31 of said act do not apply. These provisions of the act were introduced for the purpose of preventing circuity and multiplicity of action in the settlement of the estates of decedents. Prior to the enactment of this act, embarrassments arose with creditors, legatees, and distributees of deceased persons in relation to the adjustment and payment of their respective claims, from the circumstance of their being compelled to look to various sources and different persons in some instances. It was intended by this act to keep the administration in one line, and to confer upon the administrator de bonis non the power to receive and demand moneys due the estate, pay the debts, and make distribution of balances in his hands for that purpose. Com. v. Strohecker, 9 Watts, 479; Drenkle v. Sharman, 9 Watts, 485; Weld v. McClure, 9 Watts, 495; Carter v. Trueman, 7 Pa. 315. This act is a most proper one, and the wisdom of its provisions has never been questioned. If, however, the position of the appellant is sustained, the real purpose of the act is defeated. Instead of preventing circuity of action in this case, it would make circuity more circuitous. The only persons interested in or benefited by such a procedure would be those desirous of getting additional costs and fees by the new administration. We think such a useless procedure was not intended by the act of 1834. Indeed, this view seems to have been in the mind of one of the learned judges who construed the act more than half a century ago. This position was clearly indicated in the case of Carter v. Trueman, 7 Pa. 315, wherein Justice Bell said: "But it is argued by the plaintiff in error that section 31 60 A.-46

of the act of 1834 was intended to apply only in those cases where debts still remained due from the original estate, and therefore requiring the intervention of an administrator to avoid circuity and multiplicity of action, and for their more convenient payment. It may be that, where it is conceded no debts remain to be satisfied, a distributee may be permitted to recover his share of an ascertained balance by action immediately against the personal representatives of the first administrator." Even at that time the court must have had in mind a case somewhat similar to the one at bar. In the present case all debts of the testator have long since been paid, there is no duty for the administrator de bonis non to perform, and no responsibility to be incurred, so far as that part of the estate ready for distribution is concerned. Under these circumstances the court below properly awarded a distribution of the estate accounted for to the parties entitled thereto. These being our views of the law, it is not necessary to discuss the other questions raised in the ar gument of the case. Decree affirmed.

(211 Pa. 189) ·

CITY OF PHILADELPHIA, to Use of
MACK, v. HOOD.

(Supreme Court of Pennsylvania. March 20, 1905.)

MUNICIPAL CONTRACT-DELAY-OBJECTIONS BY

TAXPAYER.

Where a city delays the acceptance of a bid for a municipal contract for five years, but the contractor undertakes the work, a property owner cannot object to the delay without evidence that he paid more than he would have been required to pay if the contract had been awarded on proposals advertised at the time the work was done.

Appeal from Court of Common Pleas, Philadelphia County.

Action by the city of Philadelphia, to the use of John M. Mack, against James E. Hood. Judgment for plaintiff, and defendant appeals. Affirmed.

From the record it appeared that the defendant filed a special plea, which was as follows:

"And, for a further plea, the said defendant says that the contract for the paving, for which this lien is filed, was not awarded according to law, the proposal therefor not having been advertised as required by the ordinance and by the acts of assembly. The only authority for this paving was an ordinance of councils of the city of Philadelphia, approved July 8, 1891 (Ordinances of 1891, page 268), which provides as follows: "That the director of the department of public works be, and is hereby, authorized and directed to enter into a contract with a competent paver or pavers for the paving of East Mount Pleasant avenue, from Germantown

avenue to the Reading Railroad, with vitrified brick, without a sewer being first constructed, cost to the city not to exceed $2,450.

The conditions of which shall be that the contractor or contractors shall collect the cost of said paving from the owners of property respectively fronting on said streets, and shall also enter into an obligation to the city to keep said streets in good repair for three years after the paving is finished; provided, said streets shall be first dedicated or properly opened, and that the director of the department of public works first advertise for proposals for paving said streets, and award the contract to the lowest bidder; and that the owners of property fronting on said streets shall not be charged more than the contract price.' The work authorized by this ordinance was advertised on February 11, 1892, and bids were received on February 24, 1892, including the bid of John M. Mack, the use plaintiff in this case, and no subsequent advertising for said work was made, and no further proposals for the same were thereafter received by the said city, nor was any contract then made with the use plaintiff. More than five years afterwards, to wit, on June 23, 1897, without any further advertising for proposals, and with. out the receipt of any others, a contract for this paving was entered into by the director of public works with said John M. Mack, who subsequently proceeded to pave the said street. The proposal or bid of the said John M. Mack for this work is attached to the contract, and is marked "2-24-92.' By reason of which facts it appears that no advertisement was made in respect to bids for this work, and no proposals for the same were received for a period of more than five years before the said contract was made, and the property owners were thereby deprived of the benefit of more advantageous bidders who might subsequently have been willing to bid upon the same. And this the defendant is ready to verify."

The plaintiffs demurred as follows:

"And the said plaintiffs, according to the form of the statute in such case made and provided, state and say to the court the following causes of demurrer to the said plea: (1) That the facts in the said plea contained, if proved as therein alleged, are no defense to the case of the said plaintiff. (2) Because the said plea is in every respect uncertain, informal, and insufficient."

The court sustained the demurrer. The case went on to trial, and resulted in a verdict of $1,549.98, upon which judgment was entered.

Argued before DEAN, FELL, BROWN, MESTREZAT, POTTER, and ELKIN, JJ.

Frank P. Prichard and Charles E. Ingersoll, for appellant. E. O. Michener, for appellee.

BROWN, J. On February 24, 1892, the use plaintiff submitted a bid to the city of Phila

delphia for paving East Mt. Pleasant avenue from Germantown avenue to the Reading Railroad. It was submitted in response to an advertisement for proposals to do the work, which had been authorized by an ordinance approved July 8, 1891. This provided that the streets to be paved should "be first dedicated or properly opened, and that the director of the department of public works first advertise for proposals for paving said streets, and award the contract to the lowest bidder; and that the owners of property fronting on said streets shall not be charged more than the contract price." By a special plea the appellant averred that the contract had not been awarded according to law, because there had been no further advertisement after February 11, 1892, and it was therefore unlawful for the city, more than five years afterwards-on June 23, 1897-to award the contract to the appellee on his bid made February 24, 1892. To the plea a demurrer was filed, and sustained by the court below. This action of the court is the only error assigned, and the single question is whether, under the facts as set forth in the special plea, the city did unlawfully award the contract to the appellee more than five years after he had submitted his bid.

It is contended that the direction of the ordinance that the director of public works shall "first advertise for proposals for paving said streets, and award the contract to the lowest bidder," is to be interpreted as meaning that the advertisement shall bear some reasonable relation to the time of the making of the contract, and that, as the time which intervened between the receipt of the bid and the awarding of the contract in this case was unreasonable, it had not been awarded in compliance with the ordinance. It does seem but right that, after bids have been received from contractors in response to advertisements relating to public improvements, action on them should not be unduly delayed. Proposals are made on the basis of the prices of material and labor at the time of the advertisement for the bids, and, unless the contrary appears in the advertisement, it is to be presumed that the contract is to be awarded, and the work done, at or within a reasonable time. After undue and unreasonable delay in acting upon his bid, if a proposed contractor should be unwilling to be bound by it, he ought not to be held to it, if, at the time of its acceptance, the prices for labor and material upon which he based it have risen. But the contractor is not here complaining. He entered into the contract years after his bid had been submitted, though he might have been relieved from it for the reason stated. What is true of him ought to be and is equally true of the owner of property taxed for the payment of municipal improvements; and if it appeared by the special plea that this appellant's share of the burden would have been less if, in 1897, when the work was done by the con