
    
      Court of Common Pleas, Dauphin County,
    
    
      January 3d, 1867.
    Zerbe, Administrator of Leeler, v. Miller.
    An administrator or executor can appeal from an award of arbitrators without paying costs, even where he took out the rule of reference.
    
      Mumma, for plaintiff.
    
    
      AlricJcs, for defendant.
    
   By the Court.

In this case, the plaintiff, as administrator of Ann Leeler, took out a rule of reference. An award was made, with which he was dissatisfied, and an appeal taken without payment of costs. The defendant contends that the case comes within the 31st section of theactof 16th June, 1836, which imposes costs before appeal, on the executor or administrator taking out the rule. The plaintiff says that that part of the section is repealed by section 2 of the act of 13th of April, 1846, which excepts executors, administrators, guardians, or trustees, from the payment .of costs where they are appellants. The different acts are undoubtedly obscure and difficult to be reconciled, but we are-of the opinion that the exception in the act of 1846 is so general, as to give the appeal in all cases to those suing or sued in a fiduciary capacity, without regard to which party entered the rule of reference. In doubtful cases, sxrch a construction should be given .to statutes, as would secure the trial by jury, under the supervision of the courts; this especially in the .case of decedents’ -estates. If we could not so decide, we would permit the administrator in the present case to pay the costs nunc pro twna rather than have his appeal defeated under a doubtful law, at least one difficult of construction. The motion to quash is refused.  