Appeal of Spier

Per Curiam:

That there was an ademption of the bequest, which is found in the will of James R. Melvin, to Nancy Spier, is a matter that was settled by the finding of the auditor; and such being the case, we cannot understand how it could remain charged upon the land. Neither can we understand how the appellee could be estopped from setting up this fact because in a previous action of ejectment he had successfully made use of the will to defend his possession. It is true, the deed of the testator to Joseph Melvin, alleged to have been made about the same time with the ademption of the bequest, was successfully attacked; nevertheless, the will was good, and that was sufficient for Hendrickson. Neither was the ademption attacked; that seems to have been valid, though the deed was not. Such being the case, the orphans’ court cannot be convicted of error for permitting the appellee to avail himself of the fact thus established.

The decree is affirmed and the appeal dismissed, at the costs of the appellant.