Plaintiff's rule to show cause why the goods replevined should not be impounded by the court under Act April 14, 1905 (P. L. 163), discharged, and plaintiff appeals. Reversed, with direction that the rule be made absolute. Argued before MESTREZAT, POTTER, STEWART, MOSCHZISKER, and FRAZER, JJ. J. Hibbs Buckman, of Philadelphia, and W. J. Sturgis, of Uniontown, for appellant. Thomas F. Gain and Francis Shunk Brown, both of Philadelphia, for appellee. POTTER, J. This was an action of replevin brought to recover certain household goods. Plaintiff filed with his præcipe an affidavit averring that all the goods replevined were, "by reason of the nature of such property and by reason of the special circumstances connected therewith, and with his alleged ownership thereof, such that the actual pecuniary value of such property will not compensate him for the loss thereof." He afterwards filed a petition in which he averred: In the case now before us, the action of replevin is pending, but the order from which the appeal is taken is final as to the custody of the goods. If they are not impounded, but left in the possession of defendant, she may sell them or remove them from the jurisdiction of the court, and plaintiff would have no remedy except suit on defendant's counter bond. This would defeat the purpose of the act, which was to preserve the particular goods until the determination of the suit, so that they may then be delivered to the party in whose favor judgment is entered. To allow them to be taken by defendant, with no security except the bond for their production to answer a judgment in plaintiff's favor, would, in the language of Mr. Justice Brown, quoted above, "be a practical denial of relief to which the petitioner * is enti tied and can obtain in no other way." Counsel for appellee cited Singer v. Pintzuk, 53 Pa. Super. Ct. 43, in which it was held that an appeal would not lie from an order discharging a rule to strike off a counter bond. But there was no allegation in that case that the goods there in question possessed any special quality or association, or that their pecuniary value would not be full compensa tion for their loss. "That the greater part of said chattels are antique, and old, and were purchased by petitioner at various public sales of the effects of old families, and were family pieces, and at auctions in various parts of the country and at private sales, and were part and parcel of his home, an old farm house in Bucks county, remodeled as of a bygone period, and furnished in the period of the house, which house is still the property to be impounded. In its ordinary sense, erty of petitioner." He prayed that the goods might be impounded in the custody of the sheriff or of a storage company, to abide the final de termination of the action, in accordance with the provisions of the Act of April 14, 1905 (P. L. 163). A rule to show cause why the prayer of the petitioner should not be granted was allowed, whereupon defendant filed an answer, admitting most of the averments of the petition, but claiming ownership of the goods, and denying that any of the articles covered by the writ are heirlooms, or "family pieces," of the plaintiff's family. No testimony was taken, and, after hearing on petition and answer, the court below discharged the rule. Plaintiff has appealed. [1] Counsel for the appellee has filed a motion to quash the appeal on the ground that the order from which the appeal was taken is interlocutory. In Frey's Estate, 237 Pa. 269, 271, 85 Atl. 147, 148, the question was whether an appeal could be taken from the refusal of the court below to allow a petitioner to intervene as a party. The present Chief Jus tice there said: [2] The Act of April 14, 1905 (P. L. 163), provides that, upon the filing of the affidavit prescribed, the court "shall order" the prop We the word "shall" is imperative, and is to be regarded as peremptory. The act of 1905 is remedial, and we see nothing in its spirit or purpose to require anything but the usual construction to be given to its language. There is nothing in the statute which makes it the duty of the court, before impounding the goods, to ascertain whether the property replevined actually has the particular associations, or value, that plaintiff avers. think the Legislature intended that, when plaintiff filed the affidavit prescribed, and complied with the other requirements of the act, the court should, as a matter of course, make the order to impound the goods. The act applies to all cases where "by reason of the nature of such property, or of any special circumstances connected with his [plaintiff's] alleged ownership thereof, the actual pecuniary value of such property will not compensate him for the loss thereof." Whether or not it will do so is for the plaintiff to say, and not for the court. The order of the court below discharging the rule to show cause why the goods should not be impounded is reversed, and it is directed that the rule be made absolute, and "While, as a rule, an appeal will not lie from that, upon compliance by plaintiff with the an order refusing leave to intervene, because such order is not a final one, cases may arise requirements of the Act of April 14, 1905 where a denial of a petition to intervene would (P. L. 163), as to necessary charges and exbe a practical denial of relief to which the peti-penses of storage, the court below shall order tioner for intervention is entitled and can obtain the property to be impounded as required by in no other way; and in such cases the refusal to permit an intervention is a final order or de- the said act, pending the final determination (116 Me. 212) In re MCCLUSKEY et al. leged to have been fraudulently conveyed by deceased to her, is unsuitable. [Ed. Note. For other cases, see Executors (Supreme Judicial Court of Maine. June 7, and Administrators, Cent. Dig. § 236.] 1917.) 1. EXECUTORS AND ADMINISTRATORS 35(17) -DECISION ON PETITION FOR REMOVAL OF ADMINISTRATOR "MOTION"-RES JUdicata. A petition to remove an administrator, be ing in the nature of an interlocutory proceeding not finally disposing of the case, is but a motion in writing to which the doctrine of res judicata does not in strictness apply, and may be renewed even upon the same state of facts by leave of the court, which may be inferred from a hearing renewed upon the same grounds. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 257. For other definitions, see Words and Phrases, First and Second Series, Motion.] 2. EXECUTORS AND ADMINISTRATORS -REMOVAL-EXTENT OF REVIEW. 35(19) Upon appeal from a decree removing an administrator for failure to bring suit to set aside an alleged fraudulent conveyance of deceased, it is not necessary to determine that the conveyance was without consideration or with fraudulent intent, as the most that the probate court could be called upon to determine was that there was reasonable ground to so believe. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 259.] 3. EVIDENCE 207(1)—ADMISSIONS-DISCLOSURE OF ADMINISTRATOR-Embezzlement of FUNDS. The disclosure made before the judge of probate upon citation as provided in Rev. St. 1903, c. 66, § 70, relating to proceedings in case of embezzlement of estates of deceased persons, is competent evidence in a proceeding for re moval of an administrator on the ground of re fusal to test validity of a conveyance made by deceased to his wife. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 707, 709.] 4. EXECUTORS AND ADMINISTRATORS 35(14) REMOVAL-ALLEGATION OF INSOLVENCY. Under Rev. St. 1903, c. 68, § 2, providing that "when an estate is not sufficient to pay more than such expenses, and claims of the first four classes, the administrator is exonerated from payment of any claim of the fifth class, without making a representation of insolvency,' where the inventory of the estate showed no assets, representation of insolvency was unnecessary in a proceeding by a creditor for removal of an administrator. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 253.] 5. EXECUTORS AND ADMINISTRATORS VIOLATION OF DUTY. 57— Where a written request was made to administrator to institute proceedings to set aside an alleged fraudulent conveyance and a bond tendered him as security against loss or costs, refusal to act was a violation of a legal duty. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. § 309.] 6. EXECUTORS AND ADMINISTRATORS DISQUALIFICATION. 35(2)— Under Rev. St. 1903, c. 66, § 23, providing that "when any executor or administrator, joint or sole, becomes insane or otherwise unsuitable to perform the trust, refuses or neglects to do so, or mismanages the estate," he may be removed, n administrator interested, as a possible heir, in having the wife of deceased retain land al Although Rev. St. 1903, c. 89, § 14, makes the filing or presentation of a claim by a creditor within 18 months after notice of appointment of administrator a prerequisite to suit against the administrator, a petition by a creditor for removal of an administrator filed after presentation of claim is sufficient, although the request to test validity of an alleged fraudulent conveyance, refusal of which is the alleged ground for removal, was made before filing of claim. and Administrators, Cent. Dig. § 253.] 8. EXECUTORS AND ADMINISTRATORS 35(19) In an appeal from a decree for creditor removing an administrator for failure to test the validity of an alleged fraudulent conveyance by deceased; whether creditor's claim is barred by the statute of limitations is not for decision, as it will arise only when a new administrator has in his hands estate alleged to have been fraudulently conveyed. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. § 259.] Appeal from Supreme Judicial Court, Washington County, at Law. Petition by William G. Spinney for removal of Martin C. McCluskey, administrator. Decree for petitioner, and administrator named and others appeal. Affirmed. Argued before SAVAGE, C. J., and COR- appellants. Leonard A. Pierce and W. S. Lewin, both of Houlton, for appellee. BIRD, J. This is an appeal from the decree of the judge of probate of Washington county removing one of the appellants from the office of administrator of the estate of Charles F. McCluskey, deceased. "William G. Spinney, the appellee, was for some time prior to May 25, 1912, the owner of a judgment against the deceased, Charles T. McCluskey, which amounted to something over $600. On that date, McCluskey conveyed a farm, the only asset out of which that judgment could be satisfied, to his wife, Isabelle T. McCluskey," by deed alleged by appellee to be "without any real consideration, and 11 months afterward he died leaving no property. "On September 9th of that year, the appellee filed a petition as creditor, asking the appointment of Robert J. Love as administrator. The family of McCluskey appeared and, having the prior right to administer, Martin C. McCluskey, a son of the deceased and Isabelle T. McCluskey, was duly appointed. "January 24, 1914, a request was made in writing of the administrator to institute proceedings to set aside the conveyance for the benefit of the creditors, and an indemnifying For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 100 A.-62 bond tendered to protect him from any loss, | ground to so believe. The only evidence upcost, or damage, because of the bringing of such suit. None was ever brought. "Having waited a year, the appellee filed a petition that Martin C. McCluskey be removed as administrator, for his failure to bring the suit as requested. No inventory of the estate had been returned to the probate court. The judge dismissed this petition. on these points is the examination of Isabelle F. McCluskey, the widow of intestate, taken under the provisions of R. S. (1903) c. 66, § 70. No objection was made to its use, nor was evidence introduced by appellant to contradict it. We think it admissible, and that it affords grounds for reasonable belief that the conveyance was made without consideration and with fraudulent intent as to creditors. Dunbar v. Dunbar, 80 Me. 152, 153, 13 Atl. 578, 6 Am. St. Rep. 166. The inventory of the estate filed July 13, 1915, shows no assets. Representation of insolvency was unnecessary. R. S. (1903) c. 68, § 2. [5] On the 24th of January, 1914, written request was made to the administrator to institute proceedings to set aside the conveyance, and an indemnifying bond was tendered him as security against loss or costs thereby. It is admitted that no proceedings had been instituted by him looking to the recovery of the estate so conveyed. Putney v. Fletcher, 148 Mass. 247, 248, 19 N. E. 370. We believe this sufficient answer to the third reason of appeal to the effect that the administrator violated no legal duty by his refusal and neglect to act. Glines v. Weeks, 138 Mass. 547, 551. See cases cited. The conclusion disposes also of the fourth reason of appeal. [6] The fifth reason of appeal is: "The appellee then filed a petition that the administrator file an inventory, which was done July 13th, showing no assets of the estate. The appellee then filed a petition in this case upon which, after full hearing, the judge of probate decreed that the administrator be removed, and Max V. Doten, a disinterested party, be appointed in his stead. From the decree, the administrator joined with his mother, the record holder of the property in question, his sister, and brother, in an appeal to the supreme court of probate, at a nisi prius term of which the case was, by agreement of counsel, reported to this court." [1] The first reason of appeal is that the questions involved in the second petition for removal were res adjudicata by reason of the dismissal of the prior petition for removal. The purpose of administration being the complete settlement of the estate of a decedent, such a petition is in the nature of an interlocutory proceeding. See Arnold v. Sabin, 4 Cush. (Mass.) 46, 47. It does not finally adjudicate the rights of creditors or heirs or finally dispose of the case. Under such circumstances, a petition is but a motion in writing. See Bergen v. Jones, 4 Metc. (Mass.) 371, 376. To motions the doctrine of res adjudicata does not in strictness apply. Undoubtedly motions, technically such, may be renewed even upon the same state of facts by leave of court, and a hearing of a motion renewed upon the same grounds is equivalent to leave of court. See Cilley v. Limerock R. R. Co., 115 Me. 382, 99 Atl. 17; Clopton v. Clopton, 10 N. D. 569, 88 N. W. 562, 88 "When any executor or administrator, Am. St. Rep. 749; Harris v. Brown, 93 N. joint or sole, becomes insane or otherwise unY. 390. The appellee contends that the sec- suitable to perform the trust, refuses or ond petition alleges different grounds for its neglects to do so, or mismanages the estate," allowance than those alleged in the former the judge of probate may remove him. R. petition. Assuming, without determining, S. (1903) c. 66, § 23. An executor or adminthis to be so, it is sufficient or, indeed, un-istrator is deemed unsuitable when he has necessary to say that there could be no objection to a consideration of the second petition by the court. [2] The second ground of appeal is: "Because the alleged conveyance was not made without consideration, nor with intention, on the part of said Charles T. McCluskey, to delay and defraud any of his creditors, and paricularly the said William G. Spinney." "Because said Martin C. McCluskey is not an unsuitable person to hold the office of administrator aforesaid, nor is he in any way disqualified on any of the grounds alleged in the petitioners' third assignment of reasons for the removal of said administrator." The third assignment referred to sets forth as grounds of unsuitableness the fact that the administrator is the son and a possible heir of Isabelle F. McCluskey, and the belief that he has, as the latter, a direct pecuniary interest in the retention of the real esstate by her. any conflicting personal interest which prevents him from doing his official duty. Putney v. Fletcher, 148 Mass. 247, 248, 19 N. E. 370. We find no error under this reason of appeal. [7] The seventh reason of appeal is as follows: "Because it appears by the petition that the petitioner's alleged request made to the administrator that the latter institute proceedings for the recovery of the real estate aforesaid was made on the 24th day of January, A. D. 1914, without first presenting his claim to the administrator, verified by oath, or otherwise, and long before he filed in the probate office his claim, so verified, as required by statute, which filing, as appears by the petition, was on February 6, [3, 4] It is not necessary upon appeal, and, by reason of the report, the case is before us upon appeal, to determine that the conveyance was made without consideration or with fraudulent intent. The most that the probate court could be called upon to de "The debts of the estate are barred by Gen. Sts. c. 97, §§ 5, 20 (Pub. Sts. c. 136, § 5, 9), unless, by the discovery of the existence of the bond in September, 1882, assets have come to the hands of the administratrix after the expiration of two years within the meaning of Gen. Sts. c. 97, 8 6 (Pub. Sts. c. 136, § 11). bell v. Parker, 106 Mass. 347. Aiken v. Morse, ubi supra, 104 Mass. 277; TarWe think that it is a proper subject of judicial inquiry, if any person is willing to become administrator of the estate, whether there is not an equity of redemption, which is new assets, within the meaning of Pub. Sts. c. 136, § 111; and that, for this reason, the decree of the probate court should be affirmed." The appellant apparently invokes the provisions of R. S. (1903) c. 89, § 14. The section makes the presentation to the administrator, or filing in the probate court, within 18 months after filing in the probate court of his affidavit of notice of appointment, of the claim of a creditor against the estate, a prerequisite to suit against the administrator. If the claim is not so presented or filed, suit thereon is forever barred, except in certain cases not necessary to be now considered. This is the only penalty following such failure. The affidavit of notice was filed by the administrator January 21, 1914. The claim of plaintiff was filed only 16 days later-a full compliance with the statute requirement. The creditor applied, in that capacity, for the appointment of an administrator, and upon hearing upon his petition the appellant was appointed. It is not contended that his request in January, 1914, that the adminis- (Court of Errors and Appeals of New Jersey. trator institute proceedings to set aside the conveyance or for the recovery of the real estate, was not made by appellee as a creditor of the estate; and, long before either petition for removal was filed, his proof of claim was on file in the probate court. There can have been no doubt that appellee's request was made by him as creditor. [8] The remaining reason of appeal is: "Eighth. Because the administrator filed in the probate court on January 21, A. D. 1914, with a copy of his notice of appointment, his affidavit that he had given notice of his appointment as required by law and order of court; the petitioner's alleged claim against the estate is not for a legacy or distributive share, nor does it fall within the provisions of sections 15 or 17 of chapter 89 of the Revised Statutes; and more than 20 months after the filing of the affidavit aforesaid had elapsed before the making of the order and decree now appealed from. Wherefore petitioner did not have at the time of the issuance of said order and decree, and has not now, an enforceable claim against the estate, and it is barred by the special statute of limitation. No other claims against the estate have been presented to the administrator or filed in the probate court." It is not the opinion of the court that the matters arising under this reason of appeal are for decision in this proceeding. It involves the question of new assets-a question which will arise only in case and when the new administrator has in his hands the proceeds of the real estate alleged to have been fraudulently conveyed. The decree of the probate court removing the administrator is the decree from which appeal is taken. In Glines v. Weeks, 137 Mass. 547, 548, 549, an appeal from decree of the probate court removing appellant from the office of administratrix, it is said: "But if it is a question that might properly be litigated, whether an equity of redemption does not exist, which is new assets, and so liable to be sold for the payment of the debts of the estate, the probate court might remove the administratrix if she declined to apply to that court for a license to sell the equity of redemption. * See Putney v. Fletcher, 148 Mass. 247, 248, 19 N. E. 370. Decree of probate court affirmed. (86 N. J. Eq. 191) TURTON v. GRANT et al. June 19, 1916.) For majority opinion, see 96 Atl. 993. PARKER, J. (concurring). I agree that the Court of Chancery properly refused to dismiss the bill, but put my vote for affirmance upon the grounds that complainant as a trustee was entitled to a lien upon the trust estate for moneys properly advanced by him in the execution of his trust, and was entitled to an account under the supervision of a court of equity to have the amount of those advances ascertained and to have them declared a lien on the property. This is all that it is necessary to decide in order to uphold the bill as against a general demurrer or a motion to strike it out in toto. (78 N. H. 410) DEMING v. BOSTON & M. R. R. (Supreme Court of New Hampshire. Sullivan. May 1, 1917.) 1. RAILROADS 446(5)-INJURY TO HORSE- railroads to maintain a sufficient fence on each DUTY TO FENCE. 411(1)-INJURY TO HORSE If plaintiff's horse was rightfully in the highway, the railroad company was bound to fence against it, in view of Pub. St. 1901, c. 159, § 23. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1409, 1415, 1419, 1420, 1423.] 3. TRIAL 260(7)-REQUESTED INSTRUCTION -INSTRUCTION ALREADY GIVEN. In an action to recover for a horse killed on a railroad track a charge submitting questions For other, cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes whether cattle guards were necessary in the, doubtedly based upon a sound construction of winter season, whether they constituted ob- the statute. Chapin v. Railroad, 39 N. H. structions to the running of trains with snowplows, and whether their removal was justifi- 53, 75 Am. Dec. 207; Mayberry v. Railroad, able, was sufficiently favorable to defendant, in 47 N. H. 391; Giles v. Railroad, 55 N. H. 552; view of Pub. St. 1901, c. 159, § 23, and render- Morse v. Railroad, 66 N. H. 148, 28 Atl. 286; ed a requested instruction that "if cattle guards Flint v. Railroad, 73 N. H. 141, 59 Atl. 938. are not needed in the winter season, and are an incumbrance to the roadbed of the railroad during this season, it is not negligence on the part of the railroad to remove them," unnecessary, even if it were legally correct. [Ed. Note. For other cases, see Trial, Cent. Dig. 657.] Transferred from Superior Court, Sullivan County; Branch, Judge. Case by Elbert J. Deming against the Boston & Maine Railroad. To a denial of its motions for a nonsuit and for requested instructions, defendant excepts, and cause transferred. Exceptions overruled; judg ment on the verdict. Case for killing the plaintiff's horse. The plaintiff's evidence tended to show that the plaintiff, having driven the horse attached to a sleigh several miles, stopped at a house to transact some business with the occupant; that when he returned he unhitched the horse and was about to get into the sleigh, when he slipped upon the ice and fell upon the ground; that thereupon the horse started and ran away in the highway; that the plaintiff immediately started in pursuit, but was unable to overtake or to find the horse, until some hours after, when he learned that the horse had been killed by a train on the defendant's track some distance above a certain crossing, at which there was no cattle guard; and that the absence of such a guard enabled the horse to go upon the track beyond the crossing where he was killed by the defendant's train. The defendant excepted to the denial of its motions for a nonsuit and for requested instructions. Barned W. Carey, of Newport, for plaintiff. Hosea W. Parker, of Claremont, for defendant. [1] But whether a horse is unlawfully in the highway when he goes through an insufficient fence, or over a railroad track at a crossing that is unprotected by a cattle guard, is a question of fact, which is not conclusively proved in the affirmative by the circumstance that the animal is beyond the control of its owner or custodian. If, while from the driver without any fault on his part, it is rightfully in the highway, it escapes it would be an unreasonable refinement to say that thereupon its occupation of the highway became wrongful, as against a railroad company that was obliged to maintain fences to prevent horses properly in the highway from passing onto the tracks. If a horse is abandoned, or is permitted to stray without restraint, upon a highway, it would not be unreasonable to hold that it was not rightfully there. Hill v. Railroad, 67 N. H. 449, 32 Atl. 766. [2] But extended discussion of this subject is unnecessary, since it was distinctly held in Sleeper v. Railroad, 58 N. H. 520, upon evidence not materially different from that presented in the present case, that: "If the plaintiff's horse was the horse of a 'traveler' when it went onto the defendants' railroad, it was rightfully in the highway; and if it was rightfully in the highway, the defendants were bound to fence against it." It was also held that: "Whether the plaintiff's horse was rightfully in the highway, and whether the plaintiff was in the exercise of due care at the time the accident happened, were questions for the jury." See, also, Clark v. Railroad, 64 N. H. 323, 10 Atl. 676. That the jury were justified in finding that the plaintin's horse was rightfully in the highway when it entered upon the defendant's track is open to no serious doubt. [3] The defendant further contends that its request for instructions should have been granted. It was as follows: "If cattle guards are not needed in the winter season, and are an incumbrance to the roadbed of the railroad during this season, it is not negligence on the part of the railroad to remove them." The defendant claims that, as the horse In substance, this instruction was covered escaped from the immediate control of the by the charge. Whether cattle guards are plaintiff, it could not be found as a fact, from needed in the winter season to effectuate the the evidence, that it was rightfully in the purpose of the statute, whether they constihighway when it went upon the railroad tute obstructions to the running of trains track, and that if it was not rightfully there with snowplows, as claimed by the defendant, the defendant was under no obligation to and whether the removal of the guards in maintain a cattle guard to prevent the horse the winter is reasonably justifiable under from going along the track. The general the circumstances, are all questions submitprinciple that railroads are not obliged to maintain fences and cattle guards against cattle trespassing upon the adjoining land, ted to the jury in the charge, to which no exception was taken. If the removal of the cattle guard was an unreasonable thing to do, |