under the will, would have an unfair ad- | from the record as being irrelevant, imper vantage as the legal representative of the estate in a contest involving the validity of the will itself. It will thus be seen that there were pending in the courts at this stage of the proceedings an appeal from the probate of the will, an application for an issue devisavit vel non, and a petition asking for the appointment of an administrator pendente lite. The court did not make any decree relating to the appointment of an administrator pendente lite, but ordered all matters relating to these issues to be heard together, and required duplicate copies of the notes of testimony to be transcribed, in order that a copy could be filed in each proceeding. This is one ground of complaint. tinent, and scandalous. It was argued in the court below, and is contended here, that this was an attempt upon the part of the petitioner to obtain in advance information to be used in support of the appeal then pending from the probate of the will. Most of the averments of these paragraphs have no relevancy to questions relating to the duties of appellant as executor, and, even if true, did not furnish legal grounds for his removal under the acts of March 29, 1832 (P. L. 190), and May 1, 1861 (P. L. 680). If relevant at all, the facts averred in these paragraphs could only be considered as relating to and bearing upon the making and validity of the will, and had nothing to do with the, discharge of the duties of the executor under the will. Whether the court attached any importance to these averments in arriving at the conclusion that the executor should be removed because of failure to properly manage the estate we do not know, nor does the record inform us. Evidently these paragraphs, and such proofs as may have been offered to sustain them, were by the court deemed insufficient to affect the will, which was sustained. It would seem to necessarily follow that, if the proofs of these averments were insufficient to affect the validity of the will the only purpose for which they were relevant-they should not have been received and considered in connection with a separate and distinct issue to which they had no relevancy. Appellant clearly acted within his legal rights in asking these paragraphs to be expunged from the record, and we think it was error to refuse this request. Appellant contends that this confusion of issues made it difficult, if not impossible, to make his defense in a regular and orderly manner. If the facts warranted it, the appointment of an administrator pendente lite should have been made while the appeal from the probate was pending, and not after that issue had been determined in favor of the proponents of the will. The very purpose for asking that such an appointment be made is to have the estate protected by a disinterested person while the matters in dispute are in litigation. The validity of the will was attacked, and this was the issue between the parties. The appointment of an administrator pendente lite was only incidental to the real question involved. As it turns out, after taking several hundred pages of testimony on all the issues thus blended, the court dismissed the appeal from the probate of the will, refused the application for an issue devisavit vel non, thus sustaining the will-the real question in controversy-and then peremptorily ordered the removal of the executor, which had not even been asked when the original petition was presented. It is true that, a few days before the decree removing the executor was entered, the court directed a motion in writing which had been presented by counsel for the original petitioner, asking for a peremptory order of removal, to be filed as a supplemental petition, and made part of the record in the case. This order was made after all the testimony had been taken, the case closed, the arguments made, and the briefs submitted. One of the assignments of error is based upon this order. Standing alone, we would not consider this reversible error. Very great latitude is given the courts in the matter of allowing amendments, in order that the record may conform to the facts. But in allowing such amendments care should be exercised not to prejudice the rights of the dictional facts as are required by the acts parties upon the merits of the case as presented upon the issues raised by the pleadings. In this connection complaint is made that paragraphs 5, 6, and 11 of the petition asking for the appointment of an administrator As we view the record on this branch of the case, appellant was not given an opportunity during the whole course of the hearing to fairly meet and answer any direct issue involving his peremptory removal as executor. When the appeal from the probate of the will was dismissed and the application for an issue devisavit vel non was refused, the record showed a valid will, duly probated, which controlled the distribution of the estate. By the terms of that will appellant was appointed executor, so that when the attack upon its validity had failed he stood upon the record as the proper and legal representative of the estate. If the executor appointed by the testatrix to administer her estate according to the provisions of her will is to be removed, and a stranger not of her selection appointed, it should be done in strict compliance with the law. Certainly under such circumstances the petition asking for the removal should set forth such juris of 1832 and 1861 to clothe the court with the power to remove an executor. Appellant had the right to know that the attempt was being made to remove him, in order that he could squarely meet that issue. As we view the record and the pleadings in this case, pellant did not have the opportunity of di- fecutor, or of a removed executor, and of rectly meeting it. In this there was error. ascertaining what assets have been adminis [2] A different question is raised by the second appeal. The original decree removing the executor required him to deliver and pay over to the administrator c. t. a. d. b. n., when appointed and qualified, all goods, chattels, and property, money, estate, or effects in his hands as executor of the last will and testament of the testatrix. At the time this decree was entered, the administrator had not been appointed, and no time was definitely fixed to deliver and pay over as required by this order. The securities, papers, and other evidences of indebtedness were impounded by order of the court. An appeal was taken from the order of removal and was pending when the attachment proceeding was instituted. In this situation appellant, in order to avoid an attachment for contempt, was compelled to deliver and pay over to the administrator, who in the meantime had been appointed, all the goods, property, securities, and moneys belonging to the estate. From the decree requiring him so to do, the second appeal was taken. Appellant contends that the facts of the case did not warrant the exercise of such drastic power, and that an injustice was done him in taking out of his hands the entire assets of the estate before he had time to file an account, and while his appeal from the order of removal was still pending in the appellate court. In justification of this order, appellee points to that portion of the first section of the act of May 1, 1861 (P. L. 680), which gives the court the power to "order and compel such executor, administrator, guardian, committee or trustee to deliver over and pay to his successor, all and every the goods, chattels, and property, money, trust or effects, in his hands as aforesaid." It is argued that the power given by the statute is comprehensive enough to warrant an order to deliver and pay over, before there has been an accounting. As a general proposition, this view of the powers conferred by the statute may be conceded, but to justify its exercise there must be some impelling necessity. While the statute does confer the power, it is silent as to the time and manner of its exercise. Ordinarily it is the common and proper practice to first require the filing of an account, in order to definitely ascertain the kind, character, and amount of the assets, less such proper credits as the accountant should be allowed in connection with his administration of the estate before compelling him to deliver and pay over the unadministered assets to his successor. This doctrine, as applied to administrators de bonis non, generally is recognized in Bowman's App., 62 Pa. 166, Sibbs v. Saving Fund Society, 153 Pa. 345, 25 Atl. 1119, and Wagner's Est., 227 Pa. 460, 76 Atl. 215. This is the orderly and legal method of definitely tered and what remain unadministered. This course should always be followed, unless the exigencies of the case demand an immediate delivery of the assets, so that the estate may not be jeopardized. Tome's App., 50 Pa. 285, is an exception to the general rule. Tome was indicted and convicted for embezzling the funds of the estate, and before his removal as executor the court ordered that he give proper security, which he failed to do. This left the estate in jeopardy, and the court very properly ordered him to deliver and pay over all of the assets to his successor. Nothing of this kind appears in the present case. Appellant was not asked to give security, which, no doubt, he could and would have done. Не was not charged with embezzlement, and the evidence shows that he was ready to render an account of his administration of the estate. Under these circumstances we see no reason why there should be a departure from the recognized practice in such cases. If for any reason the estate was thought to be in jeopardy, or if it were deemed wise to require security as a protection to those interested, this end could have been more easily reached by requiring the executor to give a bond, with sufficient sureties, conditioned for the faithful discharge of his duties. This was not done, and no reason is suggested why this important step was not taken. We therefore hold, under the facts of this case, that the order upon the appellant to deliver and pay over all of the assets to his successor, before giving him an opportunity to file his account, was prematurely made. [3] The fourth assignment of error relates to the order of the learned court below, fixing the amount of the bond, in order to make the appeal a supersedeas. The amount of the bond required was $114,000, which under the circumstances, appellant contends, was unreasonable and excessive. The act of May 19, 1897 (P. L. 67) provides how the appeal from a decree removing a person acting in a fiduciary capacity shall be made a supersedeas. This act provides that if the appellant in such a case deposits in the court below all the assets of the estate which are or should be in his hands, and gives bond, with sufficient sureties, in double the amount of the costs accrued, or likely to accrue, the appeal shall act as a supersedeas. Or, in the event that all of the assets are not deposited, a bond in double the amount of the undeposited assets shall have the same effect. At the time the amount of the bond was fixed, all of the personal assets, except the household goods and wearing apparel of the testatrix, were deposited in or impounded by the court. As to the personal property, except the household goods, this fully met the requirements of the act of 1897. The not deposited the real estate of the testatrix which must have been valued at more than $50,000. The appraised value of the household furniture was $2,973.60. The costs accrued and likely to accrue were fixed at $1,000. The whole amount of the undeposited assets, including the real estate, was estimated at $57,000, and the bond was fixed in double that amount. Such an interpretation of the act of 1897 is not warranted by its language. The act was intended to reduce the amount of a bond required to be given under such circumstances, and not to increase the burden of one desiring to make his appeal a supersedeas. To include the value of the real estate in fixing the amount of the undeposited assets does violence to the spirit and purpose of the statute. The income from the real estate might very properly be included, but not the corpus. A bond in the sum of $10,000 would have been ample to secure the undeposited assets, the income from the real estate, and the probable costs. We think the amount of the bond was excessive and not warranted under the act of 1897. The settlement of this estate has been delayed for several years by reason of this litigation. It should now be settled and distributed as expeditiously as possible, so that those entitled to participate in the distribution may receive what was given them under the will. It should be borne in mind that the estate of the testatrix is what we are dealing with. It was hers to do with as she pleased, and to dispose of as she wished in any manner, not unlawful. She had the legal right to select the objects of her bounty, and to give them much or little, as she chose. The law is not concerned about what distribution she made of her estate, so long as her benefactions are confined to legal channels. The questions of mental capacity and undue influence having been determined in favor of the proponents of the will, its validity was established, and certainly all parties are interested in an early accounting. Both decrees reversed, and the administrator cum testamento annexo de bonis non is ordered and directed to deliver and pay over to appellant, as executor, all goods, chattels, and property, moneys, estate, or effects in its hands, belonging to the estate of Nancy W. Kuntz, deceased, upon said executor filing a bond, with sufficient surety or sureties, in an amount adequate to cover the value of the moneys, securities, personal property, and income from real estate that is or may come into his hands as executor of the last will and testament of said testatrix, which bond is to be approved by the orphans' court, and be conditioned for the faithful discharge of his duties as executor and properly accounting for all the property and assets of the estate. Costs to be paid out of the estate. (230 Pa. 635) WRIGHT v. ADAMS EXPRESS CO. DAVIDSON v. SAME. BLACKBURN et al. v. SAME. (Supreme Court of Pennsylvania. March 20, 1911.) COMMERCE (§ 61*) -TRANSPORTATION-LIMITA TION OF LIABILITY-INTERSTATE COMMERCE. The Pennsylvania rule that a carrier cannot contract for exemption from or limitation of its liability arising from its negligence, or that of its servants, applies to commerce between Pennsylvania and other states; Act June 29, 1906, с. 3591, 34 Stat. 584 (U. S. Comp. St. Supp. 1909, p. 1149), requiring carriers receiving property for interstate transportation to reduce the contract for transportation to writing, and that such carrier shall be liable to the lawful holder thereof for any loss or injury to such property caused by it or any common carrier to which such property may be delivered, or over whose line such property may pass, and that no contract or rule shall exempt the carrier from such liability, but that nothing in the section shall deprive any holder of such contract of any remedy which he has under existing law, not being such congressional legislation as requires the state courts to follow, as to interstate commerce, the rule adopted by the federal courts that a carrier may limit its liability to an agreed valuation in consideration of a lower rate for carriage. [Ed. Note. For other cases, see Commerce, Cent. Dig. $ 84; Dec. Dig. $ 61.*] Appeal from Superior Court. Actions by Daisy Wright, Abe Davidson, and Ephraim Blackburn and another against the Adams Express Company. Judgments for plaintiffs, and defendant appeals. Affirmed on the opinion of the lower court. Henderson, J., filed the following opinion in Wright v. Adams Express Co.: "This appeal involves a consideration of the effect of the interstate commerce legislation on the liability of a common carrier for damages for negligence on a contract for the carriage of goods from Pennsylvania to the state of New York. The plaintiff sued to recover the value of a consignment of furs delivered to the defendant in Philadelphia for carriage to New York City. The bill of lading contained the following provision: '(1) In consideration of the rate charged for carrying said property, which is regulated by the value thereof and is based upon a valuation of not exceeding fifty dollars unless a greater value is declared, the shipper agrees that the value of said property is not more than fifty dollars, unless a greater value is stated herein, and that the company shall not be liable in any event for more than the value so stated, nor for more than fifty dollars if no value is stated herein.' The package was not delivered to the consignee, nor accounted for, and the court entered judgment on the case stated in favor of the plaintiff for $350, value of the goods, notwithstanding the limitation of liability in the contract. One of the facts agreed upon was that, on November 18, 1907, and before and after that date, the regular rate established tation for carrying furs of the weight of those shipped from Philadelphia to New York was 40 cents, if their value was $50 or under, and 60 cents, if their value was $350. It was also agreed that, when the plaintiff's servant delivered the package of furs to the defendant, the agent of the latter inquired what the value of the package was, and the servant not knowing the value, stated that he did not know, whereupon the agent stamped on the bill of lading delivered to the plaintiff's servant, 'Value asked and not given.' and in force on defendant's line of transpor- | Atl. 990, 63 L. R. A. 513, 97 Am. St. Rep. contract was set up by the railroad company | contract, receipt, rule or regulation shall in an action for personal injury received by exempt such common carrier, railroad or the plaintiff while engaged in transporting transportation company from the liability [1] "The appellant contends, first, that the liability of a carrier for loss of goods shipped in interstate commerce, under a contract containing an agreement as to the value of the goods, should be determined by the law as announced in the decisions of the Supreme Court of the United States, and not according to the rule adopted by the Supreme Court of this state, because of the provision of the interstate commerce legislation requiring a carrier to issue a receipt or bill of lading to the shipper, and making such carrier liable to the holder of the receipt for loss or damage. It is conceded that it is the well-established law of this state that a common carrier cannot contract for exemption from or limitation of liability arising from his negligence, or that of his servant. This doctrine has its foundation in considerations of public policy, which hold that contracts permitting a common carrier to relieve himself from the obligation to take care of the property committed to his custody tend to encourage guilty negligence. Camden & Amboy R. R. Co. v. Baldauf, 16 Pa. 67, 55 Am. Dec. 481; Cole v. Goodwin, 19 Wend. (N. Y.) 251, 32 Am. Dec. 470; Railroad Co. v. Lockwood, 84 U. S. 357, 21 L. Ed. 627. The nature of the carrier's undertaking imposes on him the obligation to exercise a high degree of care, and a contract which has the effect to protect him when he has committed a breach of duty, and which disregards a well-defined rule of public policy, cannot be enforced. There are many cases in this state which apply this doctrine, as will be seen by examination of Powell v. R. R. Co., 32 Pa. 414, 75 Am. Dec. 564; American Express Co. v. Sands, 55 Pa. 140; Penna. R. R. Co. v. Raiordon, 119 Pa. 577, 13 Atl. 324, 4 Am. St. Rep. 670; Buck v. Penna. R. R. Co., 150 Pa. 170, 24 Atl. 678, 30 Am. St. Rep. 800; Willock v. R. R. Co., 166 Pa. 184, 30 Atl. 948, 27 L. R. A. 228, 45 Am. St. Rep. 674; Eckert v. Penna. R. R. Co., 211 Pa. 267, 60 Atl. 781, 107 Am. St. Rep. 571. And with reference to this rule no distinction has been made between transactions involving interstate carriage and those in which the transportation was wholly within the state. Grogan v. Adams Express Co., 114 Pa. 523, 7 Atl. 134, 60 Am. Rep. 360, Willock v. R. R. Co., 166 Pa. 184, 30 Atl. 948. 27 L. R. A. 228, 45 Am. St. Rep. 674, 713, and Eckert v. Penna. R. R. Co., 211 Pa. 267, 60 Atl. 781, 107 Am. St. Rep. 571, were all cases in which shipments were made from one state to another. The decisions of the federal courts have applied a different rule. They sustain the doctrine of the common law that a carrier may not contract for exemption from liability for his own negligence, but hold valid an agreement with the shipper, limiting his liability to the agreed valuation in consideration of a lower rate for carriage, the shipper at the same time to have the privilege to insist upon the carrier's liability for the full value of the property on payment of the price of transportation charged according to such value (Hart v. R. R. Co., 112 U. S. 331, 5 Sup. Ct. 151, 28 L. Ed. 717); such limitation of liability being regarded as a lawful means of protection to the carrier against excessive valuation, and a proper method of securing a due proportion between the amount for which the carrier is responsible and the freight paid. And it is this rule which the appellant asks to have applied here. "It is conceded that the law on the subject, as announced by the Supreme Court of the United States, is not binding on the courts of this state, unless Congress has legislated on the subject in the act of June 29, 1906, 34 Statutes at Large, 584. Prior to that enactment it had been decided by the Supreme Court of the United States that a statute of a state, or rule of law established by the courts of a state, declaring void any contract of a common carrier exempting him from, or limiting his liability for, negligence was not in conflict with the legislation of Congress on the subject of interstate commerce. Penna. R. R. Co. v. Hughes, 191 U. S. 477, 24 Sup. Ct. 132, 48 L. Ed. 268. Such a statute or rule of law had for its object the protection of people of the state in the enjoyment of their rights of property, and to secure for them adequate redress for wrongs done within the state, and this is clearly within the authority of the state. Common carriers, like other persons doing business within the territorial jurisdiction of the state, are subject to its law. And in each of the states there are to be found statutes and judicial decisions defining the rights and duties of such carriers, and declaring the means by which persons injured by their failure to perform their obligation may be compensated in damages. It was accordingly held, in Chicago, M. & St. P. Ry. Co. v. Solan, 169 U. S. 133, 18 Sup. Ct. 289, 42 L. Ed. 688, that a carrier exercising his calling within a particular state, although engaged in the business of interstate commerce, is answerable according to the laws of the state for acts of nonfeasance or misfeasance committed within its limits, and that on failure to deliver goods at the time and place the right of action is given by the local law. hereby imposed; provided that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.' cattle on the defendant's railroad; a statute of the state of Iowa declaring that no contract, receipt, rule, or regulation shall exempt any corporation engaged in transporting persons or property by railway from the liability of a common carrier or carrier of "The apparent purpose of this amendpassengers which would exist had no con- ment was to require the carrier to reduce tract, receipt, rule, or regulation been made the contract for transportation to writing or entered into. To the same effect are and to give the holder thereof prima facie Smith v. Alabama, 124 U. S. 465, 8 Sup. Ct. title to the property; to render the first car564, 31 L. Ed. 508; New York, N. H. & H. rier liable to the lawful holder of the receipt R. R. Co. v. New York, 165 U. S. 628, 17 Sup. or bill of lading for any loss caused by such Ct. 418, 41 L. Ed. 853; Railroad Co. v. Hu- carrier, or by any connecting carrier, over sen, 95 U. S. 465, 24 L. Ed. 527; Hughes v. whose line or lines such property may pass, Penna. R. R. Co., 202 Pa. 222, 51 Atl. 990, and to forbid exemption of such carrier by 63 L. R. A. 513, 97 Am. St. Rep. 713. The contract from the liability imposed by the conclusion of these cases was reached in ac- act. We are unable to discover in the lancordance with the doctrine that the regula-guage of this amendment any evidence of an tion of the rights and duties of all persons intention to change the rule of law thereto under the jurisdiction of the state belongs, in the first instance, to the state because of its reserved power to provide for the safety of the persons and property within its territory, and that this right is not taken away from it because of the exclusive right of Congress to regulate interstate commerce, except in cases where the attempted exercise of authority in a state is in conflict with an act of Congress, or is an attempt to regulate interstate commerce. In Martin v. Railroad Co., 203 U. S. 284, 27 Sup. Ct. 100, 51 L. Ed. 184, Mr. Justice White, after reviewing some of the federal cases bearing on the subject, said: 'The result of the previous rulings was to recognize, in the absence of action by Con for existing with reference to the measure of damages to which a carrier might be subjected in an action for negligence. The provision for a receipt or bill of lading was evidently to enable the shipper to have the best evidence of the terms of his contract, and to avoid controversy as to the title to the property shipped. No form of receipt is prescribed, nor is any other liability created than that which makes the first carrier responsible for loss occurring anywhere on the line of shipment. This is a provision in aid of the shipper, intended to meet the difficulty often experienced of determining on what part of a route over connecting lines a loss occurred, and rendering invalid gress, the power of the states to legislate, a contract with the first carrier in which and of course this power involved the authority to regulate as the state might deem best for the public good without reference to whether the effect of the legislation might be to limit or broaden the responsibility of the carrier.' These are not in themselves regulations of interstate commerce, although they control in some degree the conduct and liability of those engaged in such commerce. It is plainly decided, in the case of Hughes v. Railroad Co., 202 Pa. 222, 51 Atl. 990, 63 L. R. A. 513, 97 Am. St. Rep. 713, that the interstate commerce legislation up to that time did not control the statutes or decisions of the courts of the states as to the validity of contracts limiting liability for negligence. liability for loss is limited to a loss occurring on the line of that carrier. But this has nothing to do with the measure of damages, which is the important subject in this appeal. "It was said, in Penna. R. R. Co. v. Hughes, 191 U. S. 477, 24 Sup. Ct. 132, 48 L. Ed. 268, that the interstate commerce laws have contained no sanction of agreements limiting liability to stipulated valuations, and that, until Congress shall legislate upon it, there is not any valid objection to a state enforcing its own regulations upon the subject, although it may to this extent indirectly affect interstate commerce contracts of carriage; and in Chicago, M. & St. P. "But the appellant argues that the act of Ry. Co. v. Solan, 169 U. S. 133, 18 Sup. Congress of 1906 has that effect, inasmuch as Ct. 289, 42 L. Ed. 688, the court, referring it provides 'that any common carrier, rail- to rules prescribed for the construction and road or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage or injury to such property caused by it or by any common carrier, railroad or transportation company to which such property may be delivered or over whose management of railroads and designed to protect persons and property, said: "They are not in themselves regulations of interstate commerce, although they control in some degree the conduct and the liability of those engaged in such commerce. So long as Congress has not legislated upon the particular subject, they are rather to be regarded as legislation in aid of such commerce, |