Modzelewski et al. v. Rossi. gage debt, but it seems to be well settled that where a grantee takes land subject to an encumbrance, the amount of which has been deducted from the agreed price as in this case, the covenant to be inferred therefrom is of indemnity for the protection of the grantor. Faulkner vs. McHenry, 235 Pa., page 298. Queenspan vs. Margole, 70 Sup., page 373. and in such case the grantee cannot recover on the covenant from the grantor unless he proves actual loss. May's Estate, 218 Pa., page 64. We can find nothing in the Act of April 28, 1903, P. L. 327, (1st Purdon 1192), that would bar the plaintiff in this case of a right of action against the defendant to recover for the loss sustained by reason of the breach of the implied contract of indemnity. We are therefore of the opinion that the affidavit of defence of the defendant is insufficient to prevent judgment. ORDER And now, to-wit, June 16, 1919, the affidavit of defense in the nature of a demurer is overruled and the defendant is granted leave to file a supplemental affidavit of defense to the averments of fact in plaintiff's statement within fifteen days. ESTATE OF C. W. CROSS, alias WILL CROSS, DECEASED. Wills-Informal in character and not clearly legible-Testimony of experts to said Court-Issue framed in Common Pleas. A paper purporting to be the will of decedent was offered for probate and it was objected to for the reason that it was not legible and therefore meaningless; that it was informal and there was no proof of its execution with testamentary intent; that the signature was not the signature of the decedent. Held, that there arose such a disputable question of fact as should be passed upon by the jury and should be certified to the Court of Common Pleas, that an issue might be framed to try the same. The testimony of experts to aid the Court in reading the alleged will may be heard if the characters are difficult to be deciphered or the language, whether technical or local or provincial or altogether foreign, is not understood by the Court; in which case the evidence of persons skilled in deciphering writings, or who understood the language in which the instrument is written, or the technical or local meaning of the terms which are employed, is admissible to declare what are the characters or to translate the instrument or decipher the proper meaning of particular words. Petition for issue, No. 160 Feb. Term, 1919. O. C. Erie County. C. T. Bryan, for the will. L. E. Torry and Milloy & Gilson, contra. WHITTELSEY, J., June 16, 1919—This proceeding comes into Court upon the certificate of the Register of Wills in accordance with the provisions of Sec. 19 of the Act of Assembly approved June 17, 1917., P. L. 424, in and by which certificate he certifies the records and proceedings had before him for determination by the Court, of the disputable and difficult matters in relation to the probate of a paper writing alleged to be the last will of C. W. Cross, also known as Will Cross, deceased. The petition or certificate of the Register avers that letters of Administration were granted Feb. 4th., 1919, to L. E. Torrey, Esq., upon proof of the death of C. W. Cross, intestate, and the renunciation of the next of kin, and at their request. That on March 10, 1919, a petition was filed by Jay Cole alleging that the said C. W. Cross died testate, and a paper purporting to be the last will and testament of the said C. W. Cross was presented to the Register of Wills for probate; and that the said paper purporting to be the last will and testament of C. W. Cross (which Estate of C. W. Cross, alias Will Cross, Deceased. is attached to the said petition) is informal in character and in many respects not clearly legible, and a question as to whether the said instrument should be admitted to probate constitutes in the opinion of the Register a difficult and disputable matter, which he certifies to the Court for determination as above stated. John Cherry, one of the heirs at law of the said C. W. Cross, objects to the probate of the said paper as the last will and testament of C. W. Cross for the following reasons: First. The provisions therein are vague, uncertain and indefinite, and no one can determine from the language of the paper just who was intended as legatee. Second. For the reason that the writing is in lead pencil, blotted, blurred and so indistinct that it cannot be read without the aid of a glass; and even then cannot be deciphered so one can be reasonably sure that he has made an exact reproduction of the instrument in the language in which it was intended to be written. Third. The writing does not contain any of the formal requisites of a will, and in no place does it declare that it is the will of C. W. Cross. Fourth. It is not signed at the end thereof, as required by the Act of Assembly. Fifth. It is not testamentary in character, and was not found among the valuable papers of the deceased after his death. Sixth. For the reason that the evidence offered was not sufficient to prove that the writing together with the signature, was in the handwriting of C. W. Cross. Edward M. Cherry, another one of the heirs at law of the said C. W. Cross, deceased says that the so-called will offered for probate should not be probated for the following reasons, namely: First. The alleged will is not in writing in any sense of the word, because it is not legible. Second. Inasmuch as the words cannot be deciphered, the paper is meaningless; and the devises and bequests alleged to have been made are absolutely uncertain. Third. The alleged will is destitute of every formal act of authentication; is blurred, uncertain and illegible; and there is no proof of public or other act or adoption. Fourth. The alleged will is not signed at the end thereof. Fifth. There is no proof offered that the paper, if written by the decedent, was executed with testimentary intent. Sixth. The alleged will was not signed by C. W. Cross, the decedent. It appears from the testimony taken in this case that C. W. Cross, alias Will Cross, died January 20, 1919, and that at the time of his death he was a resident of Conneaut Township, Erie County. Sometime prior to his death, and up to January 1, 1919, the de Estate of C. W. Cross, alias Will Cross, Deceased. cedent resided with Charles Knickerbocker at Ripley, New York, a brother-in-law-that is, Cross married Knickerbocker's wife's sister. He left Knickerbocker's January 1, 1919, and did not go back there. On the 8th day of February, 1919, Knickerbocker found the alleged will in a vest belonging to Cross, which was hanging upstairs in the front room of the house, and which had been occupied by Cross when he lived there. It was in the upper left-hand pocket of the vest, which was produced in Court. Vina Knickerbocker, wife of Charles Knickerbocker, took the paper and gave it to Mr. Bryan, Attorney. Three witnesses were called who testified that they had seen Cross write his name, and that the signature "Will Cross" to the paper, was written by the decedent. Three other witnesses who had seen him write his name, testified that the name "Will Cross" on the paper, alleged to be the will of C. W. Cross, deceased, was not in the handwriting of the said C. W. Cross. The evidence shows that the decedent was a man of very limited education, and in the latter days of his life did not write anything but his signature to receipts, checks and papers prepared by others for his signature. The parer in question, alleged to be his will, is written with a lead pencil and is scarcely legible,in fact we are unable to read it. The evidence further shows that on the evening before he died, the decedent stated that he had no will, and requested Mr. Hewitt to go to Albion and get Ed. Deriar, a Justice of the Peace, to make his will. Mr. Hewitt went the next morning and saw Mr. Deriar, who was busy, but agreed to go to Cross' at five o'clock P. M. of that day. Mr. Cross died at 2:30 P. M. and in consequence thereof, no will was made at the time fixed. The decedent had a desk and safe in his home in which to keep his papers. At one time Cross had a will and destroyed it. The evidence tends to show that he uniformly signed his name "C. W. Cross." A serious objection to the paper seems to be that it is written with a lead pencil, and the words are so blurred and indistinct as it seems impossible to read it in its entireity; and we are unable to do so, and as before said, have not been aided by the testimony of any witness who can read it. We are therefore unable to decide what disposition is made of his property in this paper, and whether or not it is a testamentary instrument. There is a conflict in the evidence as to whether or not the decedent's signature is to the will. His name is "C. W. Cross," but the witnesses called say the name "Will Cross" is at the bottom of the paper. The evidence tends to show that he was known among his acquaintonces as "Will Cross” or “Bill Cross." If we could read this paper; and an issue could be ordered to try the question as to whether or not the decedent signed the paper, that is a question of fact. It seems, however, that the testimony of experts to aid the Court in Estate of C. W. Cross, alias Will Cross, Deceased. reading the instrument may be heard if the characters are difficult to be deciphered or the language, whether technical or local or provincial or altogether foreign, is not understood by the Court; in which case the evidence of persons skilled in deciphering writings, or who understood the language in which the instrument is written, or the technical or local meaning of the terms which are employed, is admissible to declare what are the characters or to translate the instrument or decipher the proper meaning of particular words. ORDER And now, to-wit, June 16, 1919, being of the opinion that the questions of fact in dispute should be submitted to a jury to decide, we will certify the case to the Court of Common Pleas, that an issue be formed to try the same. In the Matter of the Alleged Will of C. W. Cross, also known as The Commonwealth of Pennsylvania to the Judges of the Court of Common Pleas of the said County, Greeting: Whereas C. W. Cross, also known as Will Cross, a resident of the township of Conneaut in the said County, died on the 28th of January, 1919; and that on the 4th day of February, 1919, Edward M. Cherry, John W. Cherry and Laura Culver, alleged to be the next of kin of the said C. W. Cross, deceased, renounced their right to administrator on said estate, and letters of administration were granted at their request to L. E. Torry, Esq., and Whereas, on the 10th day of March, 1919, the petition of one Jay Cole was presented to the Register of Wills of said County, averring (inter alia) that since the death of the said C. W. Cross, also known as Will Cross, and since the letters of administration were granted to L. E. Torry, Esq., as aforesaid, the last will and testament of C. W. Cross, otherwise known as Will Cross, had been found, a copy of which will is attached to the said petition, from which it appears that the following named persons were named as legatees in said will, namely: Mother Cole, fifteen ($1500) Dollars; Crin Dearborn, two thousand ($2000) Dollars; Jay Cole, two thousand ($2000) dollars; Mary Knickerbocker, two thousand ($2000); Vina Knickerbocker and Charley Knickerbocker; and prayed that the letters of administration granted to L. E. Torry, Esq., upon the estate of the decedent be revoked and that the last will and testament of C. W. Cross, otherwise known as Will Cross, be admitted to probate; and that letters testamentary be granted to Charles Knickerbocker, according to the request contained in the last will and testament, and Whereas the said Register of Wills did on the 17th day of |