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house of ill fame, or if he investigated fully in reference to those subjects, and was in good faith satisfied of the truth of the charges made, and the jury so find, they may consider those circumstances in relation to the question of damages."

With reference to the first count the court charged the jury as follows: "Upon this part of the case I would advise you that, if you find the facts to be as claimed by the plaintiff, she would be entitled to recover on the first count such sum of money as her services were reasonably worth. How much the services were thus reasonably worth, if anything, is a question for the jury, entirely, upon the evidence adduced; they remembering that the burden of proof as to the facts upon which a recovery on this count depends, both as to the services and their value, is upon the plaintiff. If you find the issues on the first count in favor of the plaintiff, you will determine the value of the services, and add thereto the interest on the sum at 6% per annum from the date when you find the plaintiff broke his promise of marriage, if he did break it, up to the present time, and render your verdict accordingly on that amount." The court did not charge the jury that they could not render a verdict both for compensation for services under the first count and for damages for breach of promise of marriage under the second count, nor was it requested so to charge. The verdict was a general one, upon both counts. The errors assigned relate to the rulings of the court upon the evidence as set forth in the record, to the refusal of the court to charge as requested, to parts of the charge as given, and to its failure to charge that there could be no recovery upon both counts.

Henry F. Hall, Henry G. Newton, and Clifford Gilbert, for appellant. William H. Wil

liams, for appellee.

TORRANCE, J. (after stating the facts as above). This case comes before us upon a motion for a new trial for a verdict against evidence, and upon an appeal for alleged errors of the court in its rulings upon evidence and in its charge to the jury. So far as the motion for a new trial is concerned, testing the claims of the defendant thereunder by the principles heretofore laid down by this court in the cases cited below, we are of opinion that the damages awarded to the plaintiff are not so flagrantly excessive, nor the verdict in other respects so manifestly against the evidence, as to entitle the defendant to a new trial. Clark v. Pendleton, 20 Conn. 495, 509; Waters v. Bristol, 26 Conn. 398, 405; Johnson v. Norton, 64 Conn. 134, 29 Atl. 242; Brooks' Appeal, 68 Conn. 294, 36 Atl. 47.

Upon the appeal the reasons assigned are 28 in number, 12 of which relate to rulings upon evidence. The first two relate to the admission of evidence as to what took place between the plaintiff and defendant prior to

the divorce in May, 1893. The defendant objected to this evidence because the plaintiff was then a married woman. If this evidence had been offered and admitted to prove a promise of marriage prior to the decree of divorce, as a basis of recovery, there would be force in the defendant's objection. Such a promise made while the woman, to the knowledge of both, is married, would be void. Noice v. Brown, 38 N. J. Law, 228; Paddock v. Robinson, 63 Ill. 99. But the evidence was not admitted for any such purpose, but for the purpose merely of showing the relations which existed between these parties prior to the divorce, as bearing upon the question whether a promise of marriage had been made after the divorce, and as showing the circumstances under which the plaintiff had rendered services to the defendant. Limited as it was in its effect in this way, we think the evidence was admissible. Ray v. Smith, 9 Gray, 141; Hook v. George, 108 Mass. 324.

The answer of the witness Alice Martin, which was objected to, was hearsay, and inadmissible when given; but it is difficult to see how it can have harmed the defendant, under the circumstances, or how this point could avail him upon a new trial. The defendant himself testified that he had told this witness substantially what she said he had. The answer would have been clearly admis sible in contradiction of the defendant after he had testified as he did to the value of this property, and upon a new trial would be admissible for a like purpose. Under these circumstances, we think a new trial should not be granted on account of this ruling.

The plaintiff was permitted, against the defendant's objection, to offer evidence of her good character and reputation for chastity, in rebuttal. In his answer the defendant al

leged that the plaintiff was a person of immoral character and habits, and had been the keeper of a bed house, and he introduced evidence in support of these allegations which directly attacked the reputation of the plaintiff for chastity. Under these circumstances the ruling was correct. In cases of this kind the character of the plaintiff for chastity, when attacked, can always be sustained by evidence of reputation. Dent v. Pickens, 34 W. Va. 240, 12 S. E. 698; Sprague v. Craig, 51 Ill. 288; Jones v. Layman, 123 Ind. 569, 24 N. E. 363; Haymond v. Saucer, 84 Ind. 3.

As to the other rulings upon evidence, it is sufficient to say that most if not all of them are correct, and that, even if some of them are not, a new trial should not be granted on account of them.

The defendant requested the court, in effect, to charge the jury that the decree of divorce obtained by the plaintiff in May, 1893, was, as to the defendant, void, on the ground that it had been obtained by fraud, in the shape of false testimony given by the plaintiff. It is undoubtedly true that a stranger to the record, who is prejudiced as to some pre-existing right

by a judgment, may attack it collaterally on the ground that it was obtained by fraud. Freem. Judgm. (3d Ed.) par. 335; 1 Black, Judgm. par. 260; Michaels v. Post, 21 Wall. 398, 426; Kinnier v. Kinnier, 45 N. Y. 535; Ruger v. Heckel, 85 N. Y. 483; Baugh v. Baugh, 37 Mich. 59; Webster v. Webster, 54 Iowa, 153, 6 N. W. 170. But the defendant is not such a stranger. No right of his was prejudiced by the judgment of divorce. His promise of marriage was made, according to his own testimony, some months after the divorce was granted. Even then, if it be conceded that there was any evidence at all tending to show that the divorce had been obtained by fraud, the defendant could not avail himself of it to collaterally attack the judgment, and his request to have the jury charged to that effect was properly refused. Upon comparing the charge as given with the other requests made, we think the court, in substance, complied with all those to which the defendant was properly entitled. These requests, in substance, related to the effect of insanity and want of sufficient mental capacity upon the ability of the defendant to make a binding promise, to the effect of certain claimed insane delusions on his part, and to the conduct and character of the plaintiff which would justify the defendant in refusing to carry out his promise of marriage. The charge upon all these points was correct in law, was adapted to the case as it was presented to the jury, and was sufficient for their guidance in coming to their verdict, and this is enough. City of Hartford v. Champion, 58 Conn. 268, 276, 20 Atl. 471.

way, and the failure to notice it doubtless occurred through inadvertence on the part of the court; but still it was the duty of the court to charge the jury correctly upon this point, and the charge as given upon it was clearly erroneous. This entitles the defendant to a new trial, but we do not think in this case that a new trial ought to be granted unconditionally, if the amount which the verdict gave the plaintiff under the first count can be separated from the amount given under the second count. Under the first count the plaintiff claimed to recover the amount stated in her bill of particulars, to wit, $1,817.12, with interest; and the jury were told that she was entitled to recover under that count such sum as they found her services to be reasonably worth, with interest thereon from the date of the breach of promise to the date of the verdict. As the jury, under the charge of the court, may have given her upon the first count the full amount of her bill of particulars, with interest, and could not legally have given her more, the damages to which she is entitled upon the second count would be the amount of the verdict, less the amount of the bill of particulars, with interest, as aforesaid. The date claimed by the plaintiff for the breach of the promise of marriage was the last day of November, 1893. Unless the plaintiff will remit upon the record from the sum awarded her by the verdict a sum equal to the amount of her bill of particulars, with interest thereon from December 1, 1893, to the date of verdict, a new trial is granted. The other judges concurred, except ANDREWS, C. J., who dissented.

Appeal of HALE.

5, 1897.)

INTESTATE ESTATE - MINOR CHILDREN

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With reference to one part of the charge,
however, we think the court erred; and that
was in charging the jury, in effect, that, if they
found the issues for the plaintiff upon both
counts, she was entitled to recover upon both. (Supreme Court of Errors of Connecticut.
Whether, upon the undisputed evidence in the
case, the plaintiff was entitled to recover any-
thing at all on the first count, even if it had
been the only count in the complaint, is a ques-
tion which we deem it unnecessary to consid-
er, and upon which we express no opinion;
but, under the circumstances, she was certain-
ly not entitled to recover upon both counts.
The compensation which the plaintiff agreed
to take for her services was the performance
of the promise of marriage. If that promise
had been performed, her claim for services
would have been fully satisfied and dischar-
ged. But the damages recovered for the
breach of an agreement are the legal equiva-
lent of performance. Under the instructions
of the court upon the second count, the plain:
tiff in the verdict got the legal equivalent of
performance, namely, full damages for the
breach of promise; and having thus, in legal
effect, got what she agreed to take as full com-
pensation for her services, she is not entitled
to the value of those services in addition. No
request to charge upon this point appears to
have been made, nor does it appear that the
attention of the court was called to it in any

Oct.

DEATH

BEFORE DISTRIBUTION-HEIRSHIP. Revision 1875, tit. 18, c. 11, art. 2, § 6, provided that, in case of an intestate leaving children, the right of property in the personal estate should vest in the children, and that, when any real estate could not well be divided, the court might order the whole to be set over to the eldest son, he paying to the other children their proportionate shares. Section 7 provided that, "if any minor child die before marriage and before any legal disposition of the estate, the portion of such deceased child shall be equally divided among the surviving children and their legal representatives." Held, that section 7 was not a statute of descent, but was only supplemental to section 6, and hence, where a mother died intestate, survived by two children, who died, minors and unmarried, before any distribution of the estate, the estate went to the heirs of the minor child last deceased, and not to the next of kin of the mother. Appeal from superior court, Hartford county; William T. Elmer, Judge.

Appeal by Ruby C. Hale from an order and decree of the court of probate ascertaining and determining the heirs at law and distributees of the intestate estate of Susan M. Welles, deceased, taken to the superior court, and reserved by that court, on an agreed statement

of facts, for the consideration and advice of the supreme court of errors. Judgment affirming the decree of the court of probate advised.

The facts, as agreed upon by the parties and found by the court, are as follows: "(1) Susan M. Hale, daughter of John M. Hale, married Thomas G. Welles, of Hartford, Conn., January 15, 1873, and died intestate December 18, 1880, leaving said husband surviving her, and also two sons, John M. H. Welles and Hubert G. Welles, minor sons, and no other children. (2) John M. H. Welles died April 4, 1882, a minor, and intestate and unmarried; Hubert G. Welles died March 24, 1892, a minor, intestate and unmarried; and Thomas G. Welles died March 19, 1892, leaving Hubert G. Welles surviving him, and also a widow, Maud C. Welles, and two sons, Thomas and Samuel Welles. (3) The Security Company of Hartford was duly appointed administrator on the estate of Thomas G. Welles March 29, 1892, and was also duly appointed administrator on the estate of Hubert G. Welles March 30, 1892. Upon the death of said Susan, said Thomas G. Welles was duly appointed her administrator, but did not take any steps to settle her estate, and no distribution of her estate has ever been made. (4) Thomas G. Welles, partly during Susan's lifetime, and partly after her death, as her husband, and therefore statutory trustee, received large sums of money belonging to her estate, amounting to some $20,000. After his death there was no administrator upon her estate until November 10, 1893, when the Connecticut Trust & Safe-Deposit Company of Hartford was duly appointed administrator de bonis non upon her estate, and received from said Security Company, as administrator of said Thomas G., the said sums, which it now holds. The said money came to Susan from the estate of her father, John C. Hale. (5) Susan had sundry brothers and sisters, one of whom, Reuben C. Hale, died intestate March 9, 1879, leaving a widow and one child, Ruby C. Hale, the appellant, a minor. (6) On the October, 1896, the Connecticut Trust & SafeDeposit Company, as such administrator of Susan, applied to the court of probate for the district of Hartford for an order, under section 628 of the General Statutes, to ascertain and determine who were the heirs and distributees of said intestate estate of the said Susan, in which proceeding said Ruby C. Hale appeared, having a guardian ad litem duly appointed, and claimed to be an heir and distributee of said Susan and her estate, but the court of probate decreed that she was not an heir or distributee of said Susan or of her estate, from which decree this appeal was taken; and the question reserved for the supreme court of errors is whether said Ruby C. Hale was or was not an heir of said Susan, and entitled to have a share of said Susan's estate distributed to her, upon the facts as above found."

of

Charles E. Perkins, for appellant. George G. Sill and Arthur L. Shipman, for appellee.

HAMERSLEY, J. (after stating the facts). In the case of Connecticut Trust & Safe-Deposit Co. v. Security Co., 67 Conn. 438, 35 Atl. 342, we held that the fund of $20,000 belonging to Thomas G. Welles as statutory trustee of the personal property of his first wife, Susan M. Welles, vested upon his death in those entitled by law to succeed to the intestate estate of his said wife, and that, for the purpose of ascertaining the heirs and distributees of that intestate estate in accordance with the method provided by statute, the administrator de bonis non upon the estate of said Susan M. Welles was entitled to recover possession of the fund from the administrator of Thomas G. Welles. After that decision the administrator de bonis non of Susan M. Welles applied to the court of probate in pursuance of section 638 of the General Statutes, to ascertain who were the heirs and distributees of that intestate estate; and the court ascertained the heirs to have been the children of Susan M. and Thomas G. Welles, viz. John H. Welles, who died in 1882, a minor, intestate and unmarried, and Hubert G. Welles, who died five days after the death of his father, in 1892, a minor, intestate and unmarried; and ascertained the distributee to be the administrator on the estate of Hubert G. Welles. Thereupon the court ordered the administrator de bonis non on the estate of Susan M. Welles to deliver possession of the same to the administrator on the estate of Hubert G. Welles, and from this order the appeal to the superior court was taken. The question of who may be Hubert's heirs is not involved. The only question is, are Hubert's heirs entitled to the estate now in the hands of his mother's administrator? It will serve the purpose of clearness to treat the question as if the estate had belonged absolutely to Mrs. Welles at the time of her death. The heirs of an intestate are to be determined by the provisions of the statute in force at the time of his death, and each distributive share, as determined by such provisions, vests immediately in the person who has a right to it. Reeve, Des. p. 62; Griswold v. Penniman, 2 Conn. 564, 567; Roorbach v. Lord, 4 Conn. 347, 349; Kingsbury v. Scovill's Adm'r, 26 Conn. 349, 353; Hewitt's Appeal, 53 Conn. 24, 37, 1 Atl. 815; Messer v. Jones, 88 Me. 349, 34 Atl. 177. Since the organization of our government, the law of descent and of administration has been derived from our own statutes, and the practice under them which has become a part of our common law. The law

of descent, as to real and personal property, has been substantially the same, derived from the same General Statutes, and such distinctions as exist arise mainly from legislation specially affecting real estate passed since the general law of descent was settled, in 1639. 1 Col. Rec. p. 38. So our statute de distribution of intestate estates is at the same time

a statute of descent and of administration. As a statute of descent, it defines the heirs of an intestate, and vests in those heirs the right of property in his estate at the time of his death. As a statute of administration, it prescribes the mode by which possession of the property may be obtained, and postpones the vesting of the strictly legal title in personal property until possession is given through the process of distribution. The right of property, however, pending distribution, may pass by sale, bequest, or descent.

The statutes in force at the death of Mrs. Welles are to be found in Revision 1875, tit. 18, c. 11, art. 2. The first nine sections of this article are a re-enactment, in slightly different form, of provisions contained in an act "For preventing of fraud in concealing any part of the estate of any deceased person," enacted in October, 1699. 4 Col. Rec. p. 306. The few additions appearing in article 2 do not affect the question before us. Section 6 of article 2 establishes the law of descent in case of an intestate leaving children, and by force of that law the right of property in the personal estate of Mrs. Welles vested at her death in her two children then living. The last part of the section provides that, when it appears to the court that any real estate cannot be divided among all the children without great inconvenience, it may order the whole to be set to the eldest son; he paying to the other children their proportionate shares of the appraised value of such estate, or giving security to such children that he will pay the same, with interest, in the time limited by the court. Section 7 is as follows: "If any minor child die before marriage, and before any legal disposition of the estate, the portion of such deceased child shall be equally divided among the surviving children, and their legal representatives." The appellant, Ruby C. Hale, claims that this section is a statute of descent, constituting an exception to the law of descent as established in the preceding and following sections, and by force of this exception the property which upon the death of Mrs. Welles in fact descended to her children does, upon the death of the last survivor, descend to the next of kin to Mrs. Welles, as of the date of her death, in the same manner as if her children, in whom for 12 years the right of property has been vested, had never been born. The administrator of Hubert Welles claims that section 7 is not a statute of descent, and that, if a statute of descent, it does not apply to this case. Upon careful examination of our statutes and the cases cited, we think the section, if a statute of descent, does not apply to this case. The section "is only supplemental" to section 6 (Terry's Appeal, 28 Conn. 339, 341), and by its terms applies alone to a case where there are surviving children, or at least one surviving child, of the intestate, or representatives of such child or children, to whom the estate can descend. An exception to the general rule of descent cannot be extended be

yond its terms. Mass. 552. But we are also satisfied that section 7 is not a statute of descent, and our decision should therefore rest upon this ground.

Goodrich v. Adams, 138

Sections 6 and 7 are largely identical in language, and, so far as affects the meaning of section 7, wholly identical in substance, with provisions in the act of 1699. The language of section 7, as it appears in that act, has never acquired a practical construction, and its meaning has never been determined by any utterance of this court; the nearest approach being a dictum of Judge Waite in a personal concurring opinion, when the opinion of the court held that the statute did not apply to, and its meaning was not involved in, the case decided. Howard v. Howard, 19 Conn. 313, 317. The meaning of the language must therefore be that attached to it as used in the act of 1699. That act followed an act of 1698, by which probate jurisdiction (which from 1639 to 1666 had been exercised by the general court through the particular court endowed for that purpose with the plenary power of the general court, and since 1666 by the general court, the court of assistants, and the county courts) was for the first time committed to a separate probate court, and the judges of the county courts were constituted as such court, "with full power to act in all matters proper for a prerogative court." 4 Col. Rec. 268. The act of 1699, as well as other acts passed at the same session, was probably framed by one of the committees which since 1696 had been engaged in "making new laws and altering former laws" for incorporation in a new revision of the laws, which at this time, or shortly after, was submitted to the general court, although the printing was delayed until 1702. While drafting the act the committee doubtless had before them the English statute of distributions passed in 1670 (22 & 23 Car. II. c. 10), as well as an act for the purpose of establishing the descent of land when any person is "lawfully seized of lands in his own proper right in fee simple" upon the same rules established for the distribution of personal estate, passed in Massachusetts in 1692, shortly after the charter by which that colony became a royal province went into effect. While the language of the act of 1699 in some provisions follows that of these acts, especially of the latter one, the act as a whole differs in material respects, and cannot be treated as an adoption of either. It is simply a fuller and more careful statement of the law of descent and administration as established by the first order on that subject, and the practice under that order, passed more than 30 years before the English statute of distributions existed; and the most important, if not the only practical, change wrought, lies in the denial to the new probate court of that plenary discretion belonging to the general and particular court while in the exercise of probate jurisdiction. Within six months after the organization of a general court under the "fundamental

orders" of 1639, it passed an order establishing the law of descent and administration. Land and personal property were treated alike. The townsmen or selectmen in each town were charged with the duty of causing an inventory to be taken when any person died intestate. The general court, acting ordinarily through the particular court, granted administration to the next of kin. Intestate estate descended to wife and children or next of kin; distribution to be made by the court "as in equity they shall see meet." The custom was, after a session of the general court, for the magistrates of the court to attend to distributions, notice thereof being given by deputies in their respective towns. 1 Col. Rec. 38, 308. The decisions on these distributions settled the rule determining the proportion in which the estate descended to wife and children or next of kin. The wife receiv'd one-third of the land for life, and one-third of the personal estate. 4 Col. Rec. p. 167. The children, including representatives of deceased children, inherited lands and goods in equal shares, except the eldest son, who had a double portion; this in accordance with the scriptural, not the English, law of primogeniture. (In the New Haven laws, authority is cited: Deut. xxi. 17; 1 N. H. Col. Rec. 614.) The next of kin were determined by the rule of civil law. Later, stringent laws were passed for calling administrators to account, and for requiring bonds. While these general rules of descent and administration were determined by the decisions of the court in administering the original order of 1639, and had the force of law, they were nevertheless subject to that discretion to act as in equity they shall see meet which inhered in all administration of law by the general court, and, as appears by the record of distributions, were followed more or less closely, according to the equities of each case.

The act of 1699, nominally enacted for preventing fraud in concealing the estate of a deceased person, collates the rules thus established for administration by the new prerogative court constituted the year before, and states them with the detail and precision deemed appropriate for that purpose, and, to exclude any implication of discretion in execution, follows its statement of the law with the express prohibition, "and in no other manner shall any such estate be distributed to any wife, children or kindred whatsoever." The act, however, while giving the probate court no discretion in determining the heirs or amount of inheritance, does authorize it to exercise a discretion, as formerly practiced in the manner of distributing to the heirs the ascertained portions. After stating the laws of descent where the intestate leaves children, the act of 1699 provides that the division of the estate in accordance with that law shall be made by three freeholders, unless where all the parties interested shall agree upon a division, and present the same, under their hands and seals, to the court of probate, which agreement shall be accepted

and allowed by the court, accounted valid in law, and put upon record: "Provided, nevertheless, that where any estate in housing and lands cannot be divided among the children without great prejudice or spoiling of the whole, being so represented and made to appear unto the said court of probates, the said court of probates may order the whole to the eldest sonne, if he accept it, or to any other of the sonnes successively, upon his refusal, he paying unto the other children of the deceased, their equal and proportionable parts or shares of the true value of such houses and lands upon a just apprizement thereof, to be made by three sufficient freeholders upon oath to be appointed and sworn as aforesaid, or giving good security to pay the same in some convenient time as the said court of probates shall limit making reasonable allowance in the interim not exceeding six per cent. per annum. And if any of the children happen to dye before he or she come of age or be married, the portion of such child deceased shall be equally divided among the survivors." In copying this act in the record of the October, 1699, session, the secretary has placed a period, and not a semicolon, before the last clause, "and if any of the children," etc.; but in the revision of 1702, for which the act had been prepared, printed under the supervision of William Pitkin, John Chester, and the same secretary, the clause is preceded by a semicolon, as also in the edition of 1715. It is printed with a semicolon in the Massachusetts act of 1692. Acts, etc., Province Mass. vol. 1, p. 43. In the revision of 1750 the clause remains unchanged, but is printed as a separate paragraph following the proviso. In the revision of 1784 the language is altered to read as follows: "And if any of the children die before he or she come of age, and before marriage, or before any legal disposition thereof and before marriage, the portion of such child deceased shall be equally divided among the surviving children and their legal representatives." In the edition of 1808 the chapter "De Settlement of Estates" is arbitrarily divided into sections, and the clause appears as a separate section following the proviso. It appears in the same manner in subsequent revisions, and in that of 1875 in the condensed form above quoted. We do not think these changes in successive revisions have altered the meaning of the clause.

It is very plain that the proviso in the act of 1699 was not intended to, and did not, alter the law of descent as existing and stated in other parts of the act. It is simply a device for avoiding an inconvenience in apportioning land among those to whom it had descended in accordance with the law. In effect, it authorized the court of probate, at its discretion, upon application of those interested, and with consent of the eldest son, to sell the real estate for the purpose of dividing the proceeds among the persons to whom it had descended upon the terms mentioned (i. e. pay

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