seized, and as there had been such performance on the part of the defendant as to take the case out of the Statute of Frauds, "equity should enforce this understanding despite the law," and the title and estate should vest in the defendant the same as if he had been the son: Van Duyne v. Vreeland, 12 N. J. Eq. 142; Sharkey v. McDermot, 91 Mo. 647; Healey v. Simpson, 113 Mo. 340.

In the cases thus far considered, the remedy for breach of contract to make a will in favor of a certain person or persons, was sought after the death of one of the contracting parties when his will was offered for probate, and its provisions were not consistent with the contract, or when having died intestate, heirs claimed the property in opposition to the contract; but in Synge v. Synge (1894), 1 Q. B. 466, an action for breach of damages was brought during the life of both contracting parties.

The defendant before marriage agreed, by letter, as an inducement thereto, to leave to the plaintiff by will a certain house and land for life. The marriage took place, but sometime afterward the defendant conveyed his entire estate to third parties. The plaintiff claimed a life estate in the property, commencing on her husband's death, and that the conveyance was subject thereto, or in the alternative, claimed damages for breach of contract.

Four questions were considered by the court. First. "Was there a binding contract?" This was decided in the affirmative, Kay, L. J., expressing his opinion that the proposal of terms was made as an inducement to the lady to marry, and that she married the defendant on the faith that he would keep his word.

Second. "Was there such a contract as could be enforced in equity, or was there a remedy in damages for the breach of it?" The decision on this point was that, marriage being a valuable consideration, and the contract being in writing so that no question on the Statute of Frauds could arise, equity would give effect to the proposal, or the plaintiff could recover damages for its breach: Hammersley v. De Biel, 12 Cl. and F. 45, at 78. See, also, Wall v. Scales, 47 W. C. 472.

Third. "Has the time arrived at which such remedy can be asserted?" The court said that, as the plaintiff asked for damages for breach of contract, and as by the conveyance the defendant had put it out of his power to perform his part of the contract, the plaintiff could maintain an action for its breach at once, and need not be delayed until the time set for the performance of the contract: Hochster v. De La Tour, 22 L. J. (Q. B.) 455; Frost v. Knight, Law Rep. 7 Ex. 111; Short v. Stone, 8 Q. B. 358; Ford v. Tiley, 6 B. and C. 325.

Fourth. "If remedy be by way of damages, what amount of damages should be given?" The answer to this was that "the amount must depend on the value of the possible life estate which plaintiff would be entitled to if she survived her husband."

This decision certainly is reasonable, for it wou'd be unjust to allow the defendant to convey the property to third parties, regardless of his obligations under the contract into which he entered. MARY M. BArtelme.

Chicago

Norwestern University Law School,

1894.

ELLISON'S ESTATE. ORPHANS' COURT OF Philadelphia Co., PENNSYLVANIA.

An executor's account was filed in November, 1881, and confirmed absolutely in January, 1882. On April 3, 1893, one of the cestui que trusts filed a petition for review. All the evidence alleged in support of the petition was accessible to the petitioner in 1881, and was then considered and made the subject of certain action agreed to between the accountants and the trustee for petitioner's sister, who was another of the cestui que trusts. These facts although known in 1881 to the petitioner's trustee, who was also one of the accountants, were not actually brought home to her until 1893. It was not alleged that any fraud was practiced against petitioner's sister. Held, that the petitioner was barred by laches. THE TIME LIMIT IMPOSED UPON BILLS OF Review in PENNSYLVANIA UNDER the Act of 1840, WITH SOME ConsideraTION OF THE PROCEDURE IN OTHER STATES.

Where a decree has been made by the Orphans' Court confirming the account of an executor, administrator or guardian, no distribution having taken place under such decree, the Orphans' Court has power under the Act of October 13, 1840, to entertain a bill of review to correct such account, even though five years have elapsed between the confirmation of the account and the petition for review. In support see George's Appeal, 12 Pa. 260 (1849); Gillen's Appeal, 8 W. N. C. 499 (1880); Lightcap's Estate, 29 Pitts. Leg. Jour. 373 'Reported in 13 Pa. C. C. Rep. 410.

(1882); contra, Riddle's Estate, 19 Pa. 433 (1852); Kinter's Appeal, 62 Pa. 322 (1869); Jones's Appeal, 99 Pa. 129 (1881).

Prior to the Act of 1840, the power of the Orphans' Court to entertain bills of review was subject to no limitations other than such as arose in the discretion of the court, from the circumstances of the particular case in which the bill of review was sought. The remedy is part of a general equitable jurisdiction exercised by the Orphans' Court, and derived from the practice of the Court of Chancery. The nature of the discretion exercised by the Orphans' Court in proceedings upon bills of review is clearly shown in Briggs's Appeal, 5 Watts. 94 (1836), where Justice Sergeant said:

"The Orphans' Court, in analogy to the practice of chancery, has power, by a procceding or petition in the nature of a bill of review, to correct an account, after confirmation, for errors apparent on its face, or new matter discovered since. Great injustice might take place if this power were denied them. At the same time it is requisite that this discretion be exercised with great caution, and only within a reasonable time, otherwise accounts never would be at rest.”·

In this case it was held that the Orphans' Court, in the exercise of its discretion, had power to order a review of a guardian's account, although five years had elapsed since confirmation on the ground of his omission to account for money received the omission having been newly discovered.

Following the decision in Briggs's Appcal, the Pennsylvania Act of October 13, 1840, was passed (§ 1, P. L. 1; Br. Purd., 1286, § 61), providing that:

"The judges of the Orphans' Court of the Commonwealth of Pennsylvania, within five years after the final decree, confirming the original or supplementary account of any executor, administrator or guardian, which has or may be hereafter passed as aforesaid, upon petitition of review being presented by such executor, administrator or guardian, or their legal representatives, or by any person interested therein, alleging errors in such account, which errors shall be specifically set forth in said petition of review, and said petition and errors being verified by oath or affirmation; said Orphans' Court shall grant a rehearing of so

much of said account as is alleged to be error in said petition of review and give such relief as justice and equity may require, by reference to auditors, or otherwise; with like right of appeal to the Supreme Court as in other cases, except that the appeal shall be taken under the provisions of this Act, within one year after the decree made on the petition of review :

"PROVIDED, That this Act shall not extend to any cause where the balance found due shall have been actually paid and discharged by any executor, administrator or guardian.”

"The judges of the Orphans' Court. . . within five years shall grant a rehearing:" Act of Oct. 13, 1840.

...

This language is capable of two constructions: (1) Either that the parties in interest must bring their bill of review within five years or not at all; (2) Or, that it is obligatory upon the court to grant a rehearing within five years, and, in its discretion, to grant or refuse such rehearing after five years. In either event, under this latter construction, the parties in interest have the right to present their petition for review.

On the one hand, the Supreme Court, in the cases of Riddle's Estate and Jones's Appeal, refers to the Act of 1840 as fixing a limitation to petitions of review, and Justice Sharswood, in Kinter's Appeal, said: "The object of that Act (1840) seems to have been to make a bill of review in the Orphans' Court a matter of right, and, at the same time, prescribe a limitation of time to the exercise of the power."

On the other hand the court, in George's Appcal, declared the limitation of five years applicable only "to reviews of alleged errors in the settled accounts of executors, etc."

In Gillen's Appeal, the court said: "The Act of October 13, 1840, is an enlarging, not a restraining statute." And, further: "The only effect of that Act (1840) was to make it peremptory on the court to grant the review in the cases within the purview, with the proviso that it should not apply to any case where the balance shall have been actually paid by the executor or administrator."

And in Lightcap's Estate Justice Green held that the Orphans' Court had discretionary power to correct its own errors by petition of review outside of the provisions of the Act of 1840.