May 14, 1914. Opinion by SMITH, P. J. The words of the will are: "I give, devise and bequeath all my estate real personal and mixed unto my nephews and nieces living at the time of my decease and the issue of any of them dead per stirpes." There were twenty-six nephews and nieces living at the time of the death of the testatrix, none having died after her will had been written, and to them in equal shares was awarded the estate. Exception is taken to the decree because one-eighth was not awarded respectively to the children of each of eight of nine surviving brothers and sisters of the testatrix. an intestacy where there are only nephews and nieces is useful in that it illustrates the dominating thought which led to a legislative enactment. The testatrix has distinguished each nephew and niece as a stirpes. If any died between the writing of her will and her death the issue of each one so dying is to take in equal shares that which her mother or father would have received. If the testatrix had said, I give to the children of my brothers and sisters A, B, C and D or to the children of brothers and sisters omitting names, she would have shown that her mind was not disassociated from brothers and sisters, or if she had cut off the words per stirpes by a comma, the ingenious argument of exceptants' counsel would have been more effective. Scott's Est., 163 Pa., 165, is a case nearly resembling the one under consideration. The exceptions are dismissed and the adjudication is confirmed absolutely. Estate of Annie M. Hinkle, Deceased. -Award direct to distributee. A balance in a decedent's estate, on the death of the executor, may be awarded direct to the parties entitled thereto instead of to an administrator d. b. n., where distribution is the only matter necessary to complete the administration. Lancaster County. June Term, 1914, To interpret this will it seems unnecessary to apply any artificial rules of construction because the intention of the testatrix is clearly expressed. The will is but a sentence and the period at the end of it is the only punctuation. It is a compound sentence and its grammatical frame is-1 give unto my nephews and nieces and I give unto the issue of any of them dead per stirpes. The Administrator d. b. n.-Fund due estate grammatical antecendents of issue are nephews and nieces. The genealogical antecedents of issue are nephews and nieces. Thus the words and the relations coalesce, expressing and symbolizing the same. Nephews and nieces have no grammatical antecedent, but as grammatical antecedents co-ordinate genealogical antecedents and so are they firmly planted as the stirpes. Manifestly the testatrix had nephews and nieces in her mind as the objects of her benefaction, and because they were her nephews and nieces not by reason of them being the children of brothers and sisters. It was their relation to her which guided her purpose. Her affection was not fractionally divided among them. It was not seven times as strong for the only child of one sister as it was for each of seven children of another sister. It was full for each. It was not her intention to apportion among her brothers and sisters through their children because this would have left out one who has no child. Brothers and sisters were completely eliminated as if they were not. The introduction of the analogy of as No. 44. Coyle & Keller, for exceptions. Cleon N. Berntheisel and W'. U. Hensel, contra. May 14, 1914. Opinion by SMITH, P. J. Exception is taken to the decree of distribution in this estate because the balance was not awarded to S. R. Slaymaker, administrator d. b. n. c. t. a. of the estate of Annie M. Hinkle, who died in 1884, instead of to Annie D. Hinkle, whose claim against that estate absorbed the balance. An administrator de bonis non has a right to the possession of such property and funds, un less distribution is the only matter necessary to complete the administration of the estate: Garman's Est., 211 Pa., 264"; Wagner's Est., 227 Pa., 460. As a fact the decree was anticipated and approved by the parties as will be seen by their agreement: "that the proceeds of the sale of the property to Cleland, being five thousand dollars less certain expenses paid out, shall be considered as the fund in Court for distribution the same as if the property had been sold by Dr. Hinkle as executor of his first wife, and the same as if it had been in his hands as part of her estate at the time of his death, and charged against him by the Court, subject to accountant's right to except to the surcharge-the conceded balance of that amount being $751.54." If "distribution is the only matter necessary to complete the administration," the estate of Annie M. Hinkle, deceased, is settled. If there remains real estate to be sold by the administrator d. b. n. c. t. a., the proceeds thereof will be accounted for by him and will be a fund to meet all charges. Exceptions are dismissed and the adjudication is confirmed absolutely. Estate of Conrad Bittner, Deceased. $885.21, on account of which previously had been paid out of proceeds of a sale of real estate $661.78. To this exception is taken, and it is contended that claimant was entitled to a dividend on only the difference between the amount of the judgment and what had been paid. The time when the $661.78 was paid was the essential fact for a proper determination of the question and it was not supplied. It was assumed that the payment had been made after the death of Conrad Bittner, when, as in assigned estates, his creditors became the equitable owners of his property. Under this view of the case the distribution is supported by Hess's Est., 69 Pa., 272; Graeff's App... 79 Pa., 146; Miller's Est., 82 Pa., 113: Jamison's Est., 163 Pa., 143, and Joseph P. Murphy Co.'s Assigned Est., 214 Pa. 258. Since the exceptions have been filed and argued we have made an investigation and have come to the conclusion that Conrad Bittner's real estate was sold and payment made on account of the judgment shortly before his death, and, therefore, as his death fixed the status a dividend is allowable only on what then remained unpaid, and, therefore, the exception is sustained and the distribution is reformed accordingly. If it is made to appear that our extra Decedent's estate-Dividend on partly judicial search led to a wrong conclu paid judgment. sion this decree will be withdrawn, the audit opened and on proof showing that the payment on account of the judgment was made after the death of Conrad Bitner the original decree will be affirmed. LANCASTER LAW REVIEW. VOL. XXXI.] FRIDAY, MAY 29, 1914. [No. 30 ERRATUM.-The third word of the sixth line, second column, on page 231, should be stirps. Superior Court. Commonwealth to use of Nolt, Appellant v. Froelich. Suretyship- Subrogation- Jurisdiction of C. P. as to O. C. award. A surety on a sheriff's interpleader bond is entitled to have transferred to him the judgment on the issue against his principal and an award of the Orphans' Court against his deceased principal's estate on account of said judgment in favor of the creditor whose claim he has paid, although the creditor is also a surety on the bond of the administrator of the principal's estate. Appeal No. 291 of October Term, 1912, by Benjamin N. Nolt, use plaintiff, from decrce of C. P. of Lancaster County, to June Term. 1911, No. 62, allowing the defendant, John M. Froelich, to be subrogated to a certain judgment in C. P. and award thereon in O. C. in favor of the appellant. Affirmed. (For opinion of the court below, Hassler, J., see 30 Law Review. 41.) On appeal, the following assignments of error were filed: 1. The Court below erred in making the following order: "We must, therefore, make absolute the rule and order Benjamin N. Nolt to assign and transfer to John M. Froelich the judgment against Clara Y. Binkley to August Term. 1905, No. 10, and the award of the Orphans' Court of Lancaster County on said judgment out of the estate of Clara Y. Binkley, to February Term, 1908, No. 39. Rule made absolute." 2. The Court below erred in making an order directing Benjamin N. Nolt, the appellant, to transfer to John M. Froelich the award in the Orphans' Court of $1,118.67, the same having been awarded to Benjamin N. Nolt by the Orphans' Court upon a distribution in the estate of Clara Y. Binkley in the account of Harry Binkley, the administrator, the said Harry Binkley being insolvent, without means, and said Benjamin N. Nolt being a creditor and also surety on his administration bond. 3. The Court below erred in directing Benjamin N. Nolt, the appellant, to transfer the judgment against the estate of Clara Y. Binkley in the interpleader issue to August Term, 1905, No. 10, the same being the sum of $1,024.25 and costs and interest. B. F. Davis, for appellant. The proceedings were in accord with proper practice. Steele's Appeal, 72 Pa., 101. No replication was filed and no testimony taken after the petition and answer were filed; therefore the answer is to be taken as true, if not denied or disproved: Long's Est., 168 Pa., 341. Oberly's Est., 5 North Co., 337. Killberg's App., 86 Pa., 129. Opinion 132. It has also been held that the equity rule which requires the evidence of two witnesses, or of one witness and corroborating circumstances, to overcome sworn answer, prevails: a Krogman's Est., 14 Co. Co., 567. Subrogation is only allowed in a clear case and when it works no injustice to others. McGunn's Appeal, 16 Pa., 445. It will never be enforced to defeat a superior or even an equal equity in another. Shimp's Ass'd Estate, 197 Pa., 128. According to the facts in this proceeding, as set forth in the answer and not disputed, the doctrine of subrogation here would work gross injustice to the appellant, Mr. Nolt. M. E. Musser, J. W. Brown, Coyle & Keller and W. U. Hensel, for appellee. The appellant has confused his rights and obligations as plaintiff in the several judgments against Clara Binkley's Estate and John M. Froelich, the appellee, with his rights and obligations as one of the sureties on the administration bond of Harry Binkley, administrator of Clara Binkley, deceased. As a matter of fact, they bear no relation to each other and are wholly independent. There is no proof that Binkley is insolvent. If he has wrongfully administered the estate why should not his surety pay. Nolt was under no compulsion to become his surety and moreover his responsibility as such is not single but is shared by his co-surety. "A surety upon payment of the claim is entitled to the securities held by the creditor." Fels. Massachusetts Bonding & Ins. Co., 48 Superior Ct., 27. Hill v. Dennison, 197 Pa., 271. "The doctrine of subrogation rests fundamentally on the equitable principle that when a party is required to pay a debt for which another is also liable and which that other in good conscience ought to pay, such payment should operate to invest the party paying with the creditor's rights and remedies against the other debtor." Lackawanna T. & S. D. Co. v. Gomeringer, 236 Pa., 179. See also Prairie State Bank 7. U. S., 164 U. S., 227. The prin iple is clearly expressed in Bispham's rinciples of Equity, Section 335. The transfer of the judgment would necessarily carry with it the Orphans' Court award, but apart from that the Court of Common Pleas, sitting in equity, had jurisdiction to order the transfer of the Orphans' Court award by a party litigant who was before it. This requires no permission of the Orphans' Court. Story's Equity, Sec. 1297. K. & E. R. R. 'Co. v. P. & W. R, R, Co., 241 Pa., 608. Kendall v. Coke Co., 182 Pa., 1. Galbraith v. Rutter, 20 Super., 554Jennings . Beale, 158 Pa., 283. Clark v. Clark, 180 Pa., 176. Vaughan v. Barclay, 6 Whar., 392. Gwen's Appeal, 121 Pa., 260. Schmaltz . York Mfg. Co., 204 Pa., I. April 20, 1914. Opinion by PORTER, J. This is an appeal from the decree of the court below ordering Benjamin N. Nolt to assign and transfer to John M. Froelich the judgment standing in the name of Nolt against Clara Y. Binkley, at No. 10, August Term, 1905, of the County, and the award of the Orphans' Court of Common Pleas of Lancaster Court of Lancaster County at No. 39, February Term, 1908, of said court, made to said Nolt on account of said of Clara Y. Binkley now deceased. The judgment, in distribution of the estate the rights of Nolt, in the judgment and petition of Froelich, for subrogation to award involved, and the answer thereto of Nolt disclose the following facts. Nolt issued an execution upon a judg ment held by him against Henry Binkley and a levy was made upon property claimed by Clara Binkley, the wife of the defendant in the execution. Clara Binkley, in accordance with the sheriff's interpleader act of May 26, 1897, P. L.. 95. gave bond in double the appraised value of the property so claimed, on which the appellee, John M. Froelich, and another now deceased, became sureties. An issue in interpleader was framed to No. 10, August Term. 1905. of the Court of Common Pleas of Lancaster County, in which Clara Binkley was plaintiff and B. N. Nolt defendant. Before the issue was tried Clara Binkley died and letters of administration were granted by the register of wills of Lancaster County to her son, Harry Binkley, upon whose bond as administrator B. N. Nolt and J. L. Minnich became sureties. The administrator of the estate of Clara Binkley was substituted as the plaintiff in the interpleader issue and the case was tried and resulted in a verdict for the defendant, Nolt, for $1,024.25. After judgment had been en tered upon this verdict against the estate | of Clara Binkley, Harry Binkley filed in the Orphans' Court his account as administrator of that estate, to which account Froelich, the appellee, and his cosurety upon the interpleader bond of Clara Binkley, filed exceptions. The issue raised by the exceptions was so proceeded in that, on May 3, 1909, the Orphans' Court of Lancaster County, at No. 39. February Term, 1908, of said court, entered a decree surcharging the said Harry Binkley, administrator, and finding that there was in his hands a balance for distribution of $1,118.67. The only claim presented or allowed by the court upon the audit was as follows: "Benjamin N. Nolt, judgment on verdict in suit to No. 10, August Term, 1905, in the Court of Common Pleas of Lancaster County, $1,024.25, interest from November 24, 1908, $32.72, costs $63.70, making a total of $1,118.67. The entire balance for distribution was decreed: "To Benjamin N. Nolt, judgment creditor, $1,118.67." No exceptions were filed to this adjudication, which was confirmed absolutely, no appeal was taken therefrom, and the award remains open, unpaid and unsatisfied. Nolt subsequently brought this action against Froelich, upon the interpleader bond in which the latter had become surety for Clara Y. Binkley, the cosurety being then deceased, and recovered a judgment for $1,273.21. Froelich, on February 24, 1912, paid this judgment to the attorney for Nolt, and his demand that Nolt transfer and assign to him the securities which he held against the estate of Clara Y. Binkley, the principal debtor for whom Froelich had been compelled as surety to pay, having been refused, he the same day presented to the court below his petition fully setting forth the facts and praying the court to decree that Nolt assign to him the said judgment in the Court of Common Pleas which he held against Clara Y. Binkley and the award of the Orphans' Court of Lancaster County, making distribution to that judgment. The court granted a rule upon Nolt to show cause why the decree should not be made and to that rule he filed an answer. The answer did not deny any of the facts alleged in the petition; it could not well have done so for all the facts were matter of record. The answer averred that Froelich was bail upon the interpleader bond and as such was a mere volunteer, and not entitled to the relief prayed for. This contention is without merit. The appellant evidently had in mind those cases in which one man has paid the debt of another for which the party paying was not legally liable. The bond upon which Froelich became a surety was one expressly provided for by statute in a proceeding to try the question of the ownership of personal property. His act in becoming surety was a voluntary one, as is true in almost every case of suretyship, but it is nevertheless true that he was legally liable to be called upon to pay, in case the proceeding in which the bond was filed resulted in a verdict against the principal, for whom he became surety. The liability of the principal had not yet been fixed, and Froelich cannot be treated merely as bail for stay of execution. The allegation of the answer that Froelich and his co-surety had no right or authority to file exceptions to the account of Harry Binkley, administrator of the estate of Clara Ý. Binkley, is not entitled to serious consideration. Froelich was a party having an interest in the proper administration of the estate; he was her surety for a debt which had been reduced to judgment against her estate, and he had a right to insist that the estate should be honestly administered. The record of the Orphans' Court, which the appellee made, a part of his petition, shows that this appellant was represented in that court by his counsel at the audit of the account of the administrator of the estate of Clara Y. Binkley; if he, as surety for the administrator, was not satisfied with the conclusion at which the learned judge of the Orphans' Court arrived, he ought to have at least filed exceptions to that decree, and having failed to do so the decree of that court is conclusive as to him upon that matter. The contention upon which the appellant seems most confidently to rely, in |