the orphans' courts "shall fix such commissions in all cases in which letters of administration have been or may hereafter be granted, whether commissions are claimed by the executors or not"; and that the commissions so fixed shall be subject to the tax imposed by section 112. It is therefore made the duty of the orphans' courts to fix the commissions, not only in cases where the executor fails to claim them, but in "all cases" (not covered by section 6, art. 93) whether he claims them or not, and it is on the commissions so fixed, and not on the commissions claimed by the executor, that the tax is imposed. That this is the meaning of the sections referred to is relieved of any doubt by reference to the previous legislation on the subject. The act of 1860, c. 163, by its second section repealed the section of the Code requiring the orphans' courts to fix commissions in all cases, whether claimed or not, and provided: "That the several orphans' courts shall fix the commissions of executors within twelve months from the grant of administration, and in all subsequent accounts, wherein executors shall charge themselves with further assets; but where an executor shall renounce his commissions or release the same in favor of the widow or next of kin of the deceased, the tax mentioned in the preceding section shall not be charged; and where an executor elects to take less than five per cent. commissions (as he may do) the said tax shall be charged only on the commissions he shall elect to take." Code Pub. Gen. Laws 1860, art. 81, § 107. Under this act the executor could elect to take less than he was entitled to, and when that was the case, there could be no reason why the court should fix the commissions; the tax being imposed on the commission claimed by the executor. But when, two years later, the act of 1860, c. 163 (section 107, art. 81, Code Pub. Gen Laws 1860), was repealed by act 1862, p. 19, c. 18, which provided, as does section 113, art. 81, Code Pub. Gen. Laws 1904, that the orphans' courts shall fix commissions in all cases, whether claimed by the executor or not, the Legislature manifestly intended that the question of commissions should no longer be left to the election of the executor. He, of course, is not required to accept the commissions allowed, and may waive all or any part thereof, except the amount of the tax imposed by section 112, but the orphans' court is required to fix the commissions, and it is on the commissions fixed by the court that he is required to pay the tax.

In fixing the commissions of an executor the orphans' court properly looks to the nature and extent of the executor's labor, with the aim, of course, of allowing such commissions as will be a fair compensation for his services rendered in the administration of the estate; and, within the limits prescribed by section 5, art. 93, the amount to

Where a lower tribunal is charged with the performance of duties, in the discharge of which it is clothed with discretion, in the absence of clear and satisfactory proof of its refusal, or of such arbitrary conduct as amounts to a refusal, to exercise that discretion, its action, within the limits of the discretion vested in it, cannot be controlled or reviewed on appeal. McCrea v. Roberts, 89 Md. 238, 43 Atl. 39, 44 L. R. A. 485. In the case of Wilson v. Wilson, 3 Gill & J., on page 23, the court said: "The law has fixed a minimum of 5, and a maximum rate of commission of 10, per cent. to be allowed to executors and administrators, with a discretion vested in the orphans' court restricted only by those limits, and, the court in allowing a commission of 71⁄2 per cent. having acted within the scope of that discretion, we do not think we have any power to disturb the decision, or to review what has been done in that respect. The various circumstances determining the amount of commission proper to be allowed cannot appear to this court, and every case must be governed by its own peculiar circumstances, subject only to the restrictions already mentioned." In the case of Handy v. Collins, 60 Md. 229, 45 Am. Rep. 725, where the will provided that the executrix should be allowed reasonable commissions, counsel for the appellant earnestly insisted that the testator meant that she should have reasonable compensation for her services, to be determined, not by discretion, but by the facts in the case as shown by evidence, and that the amount to be allowed her should be ascertained by the court in the ordinary way, upon testimony taken before it, and that its finding and judgment should be the subject of appeal and review, but the court held that: "The law declares that commissions to executors and administrators shall be at the discretion of the orphans' court, not under 5, and not exceeding 10, per cent. (Code Pub. Gen. Laws 1904, art. 93, § 5), and it is clearly settled that the rate fixed by that court in the exercise of this discretion, within the prescribed limits, is not a subject of review or appeal." Again, in the case of Dalrymple v. Gamble, 68 Md. 156, 11 Atl. 718, where the administrators had passed their account in which they were allowed for certain services, expenses, attorney's fees, and costs, and 10 per cent. commissions, and the orphans' court on application struck out the order of approving the account, and passed an order disallowing the claims for costs, etc., and reducing the commissions from 10 to 7 per cent., on appeal, dealing with the order reducing the commissions, the court said: "When the account was reviewed, the allowance of commissions was stricken down, and fixed at 7 per cent. It is contended that, the rate having been fixed at 10 per cent., the administrator at once accounted with the

that the court could not afterwards alter it. The court, having full power, for good cause appearing to them, to review its action (Re Estate of Stratton, 46 Md. 551), did so, and that question is not reviewable in this court. Handy v. Collins, 60 Md. 229, 45 Am. Rep. 725. The question of commissions is entirely in the discretion of the orphans' court, except so far as it is limited by law, and no question is presented of the court's transcending the limit in respect to allowance. If the appellant has paid the state too much, he must take such steps as are open to him to get it refunded." 18 Cyc. p. 1168.

The record in this case does not show that the orphans' court refused to exercise the discretion vested in it by section 5. On the contrary, the appellant states in his petition filed in that court that, when the account was taken back to the court by the register of wills, it refused to pass the account, on the ground that the commissions allowed him were, in the opinion of the court, insufficient. The attention of the court having been directed to the question of commissions, it reviewed its action in indorsing the account "O. K.," and, exercising the discretion given it by law, passed the order fixing the commissions. Nor does it appear from the record that in determining the commissions to be allowed the executor, the orphans' court acted arbitrarily or capriciously, unless we are to conclude that it did so from the fact that the commissions allowed were in excess of those claimed by the executor, or from the fact (as stated in the appellant's petition) that no testimony was heard before it made its decision. As we have said, the law requires the orphans' court to fix the commissions, and in the discharge of that duty it is not limited by the commissions claimed by the executor, and there is no rule of law or practice in this state requiring the orphans' court to hear testimony as to the services rendered by the executor in the administration of an estate, in order to fix the commissions to be allowed him. The inventories, list of debts, and reports required by law to be filed (Linthicum v. Polk, 93 Md. 93, 48 Atl. 842), and the executor's account disclose the amount and character of the estate, and, except, perhaps, in rare cases, the nature and extent of the executor's services in the administration of the estate, from which the court can readily determine the proper commissions to be allowed as compensation for such services. We cannot presume that the orphans' court acted arbitrarily, but, as was said in Ex parte Shipley, 4 Md. 493: "We must presume that the court properly exercised its powers, until the contrary appears."

The cases of Ex parte Shipley, supra, Porter v. Timanus, 12 Md. 283 (in which the records did not show that the orphans' court

acted arbitrarily, and the appeals were dismissed), and Consolidated Gas Company v. Baltimore City, 101 Md. 541, 61 Atl. 532, 1 L. R. A. (N. S.) 263, 109 Am. St. Rep. 584, referred to by counsel, so far as they touch the questions involved in this appeal, are not at all in conflict with the views herein expressed or the authorities we have cited. Assuming that the orphans' court disposed of the executor's petition without hearing testimony (as stated in the appellant's brief, but which does not appear from the record), there is no allegation in the petition of any fact important to be known by the court in fixing the commissions to be allowed, or that required the court to review its action in passing the order of March 25th. The allegations are, in substance, that the court passed the order fixing the commissions without hearing testimony as to the services rendered, and that the commissions allowed are, in the opinion of the petitioner, "excessive and unjust." The court, as stated, was not required to hear testimony as to the services rendered by the executor before fixing the commissions, and the fact that commissions fixed by it were, in the opinion of the executor, excessive is no reason why it should be required to do so, if, after considering the petition, it was satisfied with its previous judgment in the matter.

We see no objections to the order "allowing 2 per cent. commissions on the whole estate"; the allowance being within the limits of section 5, art. 93.

The appeal in this case must be dismissed. Appeal dismissed.

(222 Pa. 345)

COLLINS v. SOUTH PENN OIL CO. (Supreme Court of Pennsylvania. Nov. 2, 1908.)

1. MINES and Minerals (§ 55*)-GRANTS AND RESERVATIONS OF RIGHTS-CONSTRUCTION. Owners of land executed a 20-year oil and gas lease, and thereafter agreed to extend or make a new lease for 10 years from the expiration of the original lease upon the same terms. Subsequently, they executed a deed reserving to themselves all the oil and gas from the date of the deed to the expiration of the extension of the original lease, and also the right to execute a new lease, upon the same terms as the original lease, for 10 years after its expiration. Held, that the reservation made by the owners was for the purpose of retaining the rights which they had in the lease until the expiration of the original lease, and then to extend the same for 10 years.

[Ed. Note.-For other cases, see Mines and Minerals, Cent. Dig. § 154; Dec. Dig. § 55.*] 2. MINES AND MINERALS (§ 83*)-CONTRACT TO LEASE-CONSTRUCTION.

One of the lessees in a lease of oil lands parted with all interest therein, and thereafter purchased a fourth interest in the fee of land other than that covered by the original lease. Thereafter the owner of the land covered by the original lease contracted in writing with the owner of the one-fourth interest in the other land, in which it was recited that he was a part

owner in such land, and agreed that, when he became owner of the three-fourths of such land, he would extend the original lease to the owner of the quarter interest, and the latter agreed to surrender a certain interest in the oil produced as provided by the original lease. Held, that such agreement referred only to the fourth interest in the land purchased, and not to the land covered by the original lease in which the lessee had no further interest.

[Ed. Note.-For other cases, see Mines and Minerals, Dec. Dig. & 83.*]

Appeal from Court of Common Pleas, Forest County.

Ejectment by Truman D. Collins against the South Penn Oil Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The court charged in part as follows:

"On September 30, 1875, John Taggart and others made a lease to J. B. Agnew for the purpose of exploring for oil and gas, and perhaps other minerals, for the term of 20 years, which would make the lease expire on September 30, 1895. Some time in 1890, these same lessors entered into an agreement with the North Penn Oil Company; the company having acquired in the meantime the interest of J. B. Agnew. This agreement is dated in 1890. The day and month is left blank, but it is acknowledged on November 6, 1890, and recorded June 6, 1891. I may state at this time that this agreement was for the extension or making of a new lease, extending this original lease made September 30, 1875, to J. B. Agnew. This agreement was to extend or make a new lease, extending the time 10 years beyond the 20 years which it had to run. On December 3, 1892, Thomas M. Armstrong, trustee, and Andrew J. Armstrong, and others, made a conveyance of the interests which they had in the land that was described, or certain parts of the land which was described in the original lease, to J. B. Agnew, and in that they make a reservation which I will allude to a little later. And I may state here that all the other owners, or their heirs or assigns that are named as the grantors in the original lease to J. B. Agnew, made a conveyance similar to the one to which I have called your attention, to Mr. Collins, the plaintiff in this case. In all but one of those conveyances, the exception and reservation is the same as contained in the deed to which I have just called your attention, dated in 1892. The exception in that deed is as follows: 'Excepting and reserving unto the said parties of the first part, their heirs, executors, administrators and assigns, all the oil and gas in said premises, with the right to bore, explore, dig, produce and remove the same, from this date up to and including September 30, 1905, with the right and privilege in said parties of the first part to receive all rents, royalties, issues and profits due or to become due by reason of a certain lease heretofore executed by the then owners of the land, namely, John Taggart et

al., to J. B. Agnew, dated September 30, 1875, and recorded in Forest county, in Deed Book, vol. 12, p. 57, subject to which this deed is made.' So far this reservation is plain and clear, and reserves to the grantors in this deed all the rights which they had when they made the lease to J. B. Agnew, and the right to receive one-eighth of the oil that might be produced under that lease. But it goes on to state: 'And also, the right in said parties of the first part to execute a new lease or leases to the present owner of said lease or any other person or persons they may desire, upon the same terms and conditions contained in said lease of September 30, 1875, at any time, for the term of ten years after the expiration of said last-mentioned lease, in which said new lease or leases the rents, royalties, profits and benefits shall likewise accrue to and be payable to said parties of the first part hereto, their heirs, executors, administrators and assigns.'

"You will observe, gentlemen, that in this clause the parties reserve the right to execute a new lease or leases to the present owner of said lease or any other person or persons. Now, by the terms of their agreement which they made in 1890, they agreed to extend or make a new lease for the period of 10 years from September 30, 1895, the date upon which the lease above described will expire. This agree ment recites: 'Now therefore this agreement witnesseth that the said parties of the first part, for and in consideration of the sum of one dollar to them in hand well and truly paid, by the North Penn Oil Company at and before the sealing and delivery hereof, the receipt of which is hereby acknowledged and of the purchase by said company of the interest of the parties of the first part in the leasehold above described, have covenanted and agreed, and by these presents do covenant and agree, to demise and lease to the said North Penn Oil Company, its successors and assigns'-and then goes on to describe. Now, Gentlemen, the parties in making this reservation, and surely the person drawing the reservation, had in mind, and he was drawing it for the grantors named in the deed, and they had in mind, the fact that they had agreed to make a lease extending the time from September 30, 1895, for the period of 10 years, and were careful, in my opinion, to reserve the right to do what they had agreed to do in 1890, when they made the agreement with the North Penn Oil Company. This deed was made in 1892, two years later, and in the judgment of the court, when they made this reservation, this language was for the purpose of retaining to themselves the right to do what they had agreed to do in that agreement, and they probably had in mind at that time that it was incumbent upon them by the terms of that agreement to make a lease when 1895

for a new trial is made for any other cause" than that the verdict is against law or evidence, "the evidence in support thereof shall be taken within such time and in such manner as the court at the next ensuing term shall order, or the motion will be regarded as withdrawn." No power is conferred upon a justice in vacation to make such order.

[Ed. Note. For other cases, see New Trial, Cent. Dig. § 317; Dec. Dig. § 157.*]

4. NEW TRIAL ($ 108*)-NEWLY DISCOVERED EVIDENCE-MATERIALITY.

The rule governing a motion to have a verdict set aside on the ground of newly discovered evidence is that, before the court will grant a new trial upon this ground, the newly discovered testimony must be of such character, weight, and value, considered in connection with the evidence already in the case, that it seems to the court probable that on a new trial, with the additional evidence, the result would be changed; or it must be made to appear to the court that injustice is likely to be done if the new trial is refused. It is not sufficient that there may be a possibility or chance of a different result, or that a jury might be induced to give a different verdict. There must be a probability that the verdict would be different upon a new trial.

[Ed. Note. For other cases, see New Trial, Cent. Dig. § 226; Dec. Dig. § 108.*]

5. SALES ($ 397*)-BREACH OF WARRANTY— EVIDENCE.

In the case at bar, which was an action to recover the purchase price of a pair of horses sold by the defendant to the plaintiff, the trade having been rescinded by the plaintiff because of breach of warranty by the defendant, the verdict was for the plaintiff, and the defendant filed a motion for a new trial. Held that, while the evidence at the trial was contradictory, yet the jury were justified in finding a warranty on the part of the defendant and a breach of the

same.

[Ed. Note.-For other cases, see Sales, Cent. Dig. 1136; Dec. Dig. § 397.*]

6. NEW TRIAL (8 104*)-NEWLY DISCOVERED EVIDENCE.

Also, in the case at bar, the defendant filed a motion for a new trial on the ground of newly discovered evidence. This motion was not properly before the law court, but for reasons stated in the opinion the law court concluded to consider the newly discovered evidence. Held, that the newly discovered evidence was merely cumulative on the question of breach of warranty, and, had the same or its equivalent been offered at the trial, it is not probable that a different verdict would have been rendered. [Ed. Note. For other cases, see New Trial, Cent. Dig. § 218; Dec. Dig. § 104.*]

(Official.)

On Motion from Supreme Judicial Court, York County.

Action by William A. Mitchell against John Collins Emmons. Verdict for plaintiff. Motions by defendant for new trial. Overruled and judgment on the verdict.

Assumpsit to recover $300, the purchase price paid by the plaintiff to the defendant for a pair of horses; the trade having been rescinded by the plaintiff because of a breach of warranty by the defendant.

The first and principal count in the plaintiff's declaration was as follows:

"In a plea of the case, for that the plain

tiff, at said Kennebunk, heretofore, to wit, upon the 10th day of May, A. D. 1906, paid to the defendant a certain sum of money, to wit, $300, and received into his possession a certain pair of horses. That previous to the payment of the said money and the receipt of said horses, said defendant claimed to be the owner of said horses, to have worked them upon his farm doing all sorts of work, such as hauling and backing loads, plowing, and other farm work, and previous to said sale of said horses to the plaintiff the defendant represented and warranted to the plaintiff that said horses were sound and all right in every respect, that they would work on any spot or place, that they had done all kinds of ordinary work for the defendant, and that they were indeed and truly worth a much larger sum, to wit, $400, than defendant required plaintiff to pay therefor. That the plaintiff, expressly relying upon the aforesaid statements and warranties concerning said horses made by the defendant, took said horses into his possession and paid the defendant therefor said sum of $300, and then and there believed, on account of the said statements and warranties of the defendant, that said horses were well worth $300, that they were sound in every respect, would ordinarily work in any spot or place and do and perform the ordinary labor and services that work horses usually perform. The plaintiff says that the statements and warranties of the defendant were false and fraudulent and false misstatements, inasmuch as one of said horses was balky and would not pull, would not work at all, although the plaintiff many times and in every way possible tried to cause said horse to work and perform ordinary services such as a work horse usually performs. And the plaintiff alleges that thereafterwards, to wit, upon the 29th day of May, A. D. 1906, after negotiations and conversations with the defendant, he, said plaintiff, rescinded said sale and offered to return and deliver to the defendant at his barn in Kennebunk said horses, and at the same time demanded the return of said $300, but that said defendant refused to accept said horses or to return to the plaintiff said sum of $300. And the plaintiff alleges that by reason of all of the foregoing an action has accrued to him to have and recover of said defendant said sum of $300 and interest thereof from the said 29th day of May, A. D. 1906."

The declaration also contained an omnibus count of the common form, together with a statement of what the plaintiff would offer to prove thereunder, which, in substance, was the facts alleged in the first count.

Plea the general issue, with brief statement, as follows:

"That he, the defendant, never represented and warranted to the plaintiff that said horses were sound and all right in every re