meaning may be found by consulting experts in such art and science. In fact, the trial judge may take such means as he deems advisable to inform himself upon the subject, and enable him 'to give in his instructions to the jury the proper construction and definition of the words used in the statute. Did the court err in holding the lines were set lines? Writers upon the subject of fishing state that a "set line" is "a line with baited hooks fastened to it, set or anchored for taking fish" (Stand. Dict. 1638); and "a line to which a number of baited hooks are attached, and which, supported by a buoy, is extended on the surface of the water" (4 Enc. Dict. 4216); and, further, "fishing lines may be classed as hand lines and set lines, long lines, or trawls. These three names are applied to long lines having attached to them, at regular intervals, lines armed with hooks. At either end is an anchor to hold the trawl in place, furnished also with a line and buoy to indicate its position" (3 Johns. Univ. Cyc. 390). In describing "fisheries" in 9 Enc. Brit. 256, an instance is given of a set line about 8 miles long, with 4,680 hooks attached. The statute not only forbids the use for fishing of pound nets, seines, gill nets, set nets, fykes, set lines, and fishing otters or trawls, but prohibits the furnishing of them for that purpose. Hence, if a man has one of these things, he cannot loan it to a neighbor for such use. Each of these articles is a specific thing. The name designates what it is. It is fairly inferable from this language that the term "set line" denotes a fishing line of a certain kind or species, its character not depending upon the manner of its use, and not a common fishing line with one hook attached, which becomes a "set line" if tied to some object on the shore. The lanThe language of V. S. § 4583, countenances this construction of the statute, for by that section a penalty is imposed upon certain fishing, except fishing through the ice with not more that 15 "tended lines." This would indicate that a line with a single nook fastened to any object upon the banks or upon the ice, such a line as the respondent was using, is what is meant as a tended line, and not a set line. The ruling should have been that the lines were not set lines. Exceptions sustained, judgment and sentence reversed, and cause remanded. STATE v. SHATTUCK. (Supreme Court of Vermont. Windsor. July 17, 1897.) STATUTES-EXCEPTIONS-BURDEN OF PROOF-CON FLICT OF LAWS-PRESUMPTIONS-MARRIAGE 1. A restriction on remarriage by the guilty party to a divorce is exceptional, and accordingly, if one claims that a case falls within it, the burden is on him to show such to be the fact. 2. The presumption is that the common law of a sister state is like the common law of Vermont. 3. If the marriage of parties under no disability by international law is valid where performed, it 38 A.-6 is valid everywhere, though they were away from the state of their domicile to evade a law prohibiting remarriage of the guilty party to a divorce, since such law has no extraterritorial force. Exceptions from Windsor county court; Munson, Judge. Addie Shattuck was convicted of adultery, and alleges exceptions. Overruled. J. G. Harvey, State's Atty., and W. W. Stickney, for the State. W. B. C. Stickney, for respondent. ROWELL, J. The charge is that the prisoner, an unmarried woman, committed adultery with Coburn, a married man. It appeared that Coburn's first wife, who is still living, obtained a divorce from him in this state in December, 1895; that on June 13, 1896, he and Grace Hoisington, both of whom were then domiciled in Windsor, in this state, went to Claremont, N. H., and were there married by a clergyman authorized by the law of that state to solemnize marriages; and that immediately after the marriage they returned to Windsor, where they have lived ever since. and where they first cohabited as husband and wife, never having cohabited as such in New Hampshire. The only evidence of the law of New Hampshire respecting marriages was chapter 174 of the Public Statutes of that state, entitled "Marriages." That chapter imposes no restraint upon remarriage by the guilty party to a decree of divorce. The court charged the jury that if it found that the marriage ceremony was performed by the clergyman, and that he was authorized to perform it, as his testimony tended to show, and also found that the said Grace cohabited with Coburn under the belief that the marriage was legal, as her testimony tended to show, the marriage was valid, and Coburn was a person with whom the crime of adultery could have been committed. To this the prisoner excepted, and also for that the court did not charge that there was no evidence in the case to show that Coburn, being disqualified by the laws of this state to contract a lawful marriage, was, notwithstanding such disqualification, competent by the laws of New Hampshire to contract a lawful marriage, and that without such testimony the fact of his marriage to said Grace was not made out. This last exception is not sustainable. As we have said, the chapter of the New Hampshire statutes put in evidence is not restrictive in this behalf; and if it be said that some other part of the statutes may be, the answer is that, as such restrictions upon marriage are exceptional, the burden was on the prisoner to show the restriction, if any there is. Hutchins v. Kimmell, 31 Mich. 126, 132. And, as no such restriction exists in the common law of this state, the presumption is that the common law of New Hampshire is like ours in this regard. Ward v. Morrison, 25 Vt. 593, 601. The marriage in question must, therefore, be taken to be valid by the law of New Hampshire. But, had it been celebrated in this state, it would be void here, for our statute provides that it shall not be lawful for a divorced libelee to marry a person other than the libelant for three years from the time the divorce is granted, unless the libelant dies; and imposes a penalty on a person who violates that provision, or lives in this state under a marriage relation forbidden by it; and we have recently held that a marriage celebrated in this state in violation thereof, between parties thereof, between parties domiciled here, was void here. Ovitt v. Smith, 68 Vt. 35, 33 Atl. 769. The prisoner claims that this marriage is void here notwithstanding it was celebrated in New Hampshire, and is valid there, for that, when a marriage is absolutely prohibited in a state or country as being contrary to public policy, and leading to social evils, the domiciled inhabitants of that state or country cannot be permitted, by passing the frontier, and entering another state, in which the marriage is not prohibited, to celebrate a marriage forbidden in their own state, and immediately return to their own state, to insist on their marriage being recognized as lawful. It is the common law of Christendom that as to form and ceremony a marriage good where celebrated is good everywhere. But as to capacity to marry the authorities are not agreed, some holding that, as in other contracts, it depends upon the law of domicile, and some that it depends upon the law of the place where the marriage is solemnized, as do form and ceremony, and that a marriage good where celebrated is good everywhere, unless odious by the common consent of nations, or positively prohibited by the public laws of a country from motives of policy. It is undoubtedly true that states may control this matter by statute, as Massachusetts does, where it is enacted that when persons resident in that state, in order to evade its marriage laws, and with an intention of returning to reside there, go into another state or country, and are married, and afterwards return and reside in Massachusetts, the marriage shall be deemed void. We have no such express provision. The language of our statute is general, and it is a fundamental rule that no statute, whether relating to marriage or otherwise, if in the ordinary general form of words, will be given effect outside of the state or country enacting it. To bind even citizens abroad, it must include them, either in express terms or by necessary implication. Hence, if a statute, silent Hence, if a statute, silent as to marriages abroad, as ours is, prohibits classes of persons from marrying generally, or from intermarrying, or declares void all marriages not celebrated according to prescribed forms, it has no effect upon marriages, even of domiciled inhabitants, entered into out of the state. Those marriages are to be judged of by the courts of such state, just as though the statute did not exist. If they are valid by the international law of marriage and the local law of the place where celebrated, they are valid by the law of such state, and the statute has nothing to do with the question if such international law is a part of the law of the state, as it is here, for a written law not construed to be extraterritorial does not change the unwritten law as to extraterritorial marriages; and therefore parties who are under no disability by international law may choose their place of marriage, and, if the marriage is valid there, it will be valid everywhere, though they were purposely away from home, and the same transaction in the state of their domicile would not have made them married. There is, therefore, no foundation for an argument based simply on the idea of an evasion of the law of domicile. The This doctrine is entirely applicable to statutes prohibiting marriage after divorce. Such statutes are not extraterritorial, unless made so by express words or necessary implication, as has been frequently held in this country, though there are cases the other way, among which is the recent and well-considered case of Pennegar v. State, 87 Tenn. 244, 10 S. W. 305, where the cases adopting the same view will be found. But the weight of American authority, as well as reason and analogy, sustain the proposition stated. This whole subject is very fully and satisfactorily discussed by Mr. Bishop in chapter 39 of the first volume of his work on Marriage, Divorce, and Separation; and, as we adopt his views, an extended discussion here is not necessary. subject is also fully discussed in Com. v. Lane, 113 Mass. 458, and Ross v. Ross, 129 Mass. 243. In the latter case it is said that, the relation of husband and wife being based upon the contract of the parties, and recognized by all Christian nations, the validity of the contract, if not polygamous nor incestuous according to the general opinion of Christendom, is governed, even as regards the capacity of the parties, by the law of the place of marriage; that this status, once legally created, should be recognized everywhere as fully as if created by the law of the domicile; and that, therefore, such a marriage, if valid by the law of the place where contracted, even if contracted between persons domiciled in Massachusetts, and incompetent to marry there, is valid there to all intents and effects, civil and criminal, except so far as the legislature has clearly declared that such a marriage out of the commonwealth shall be deemed invalid. The same doctrine is held in Van Voorhis v. Brintnall, 86 N. Y. 18, where it is said that, in the absence of express words to that effect, it is not to be inferred that the legislature intended its enactments to contravene the jus gentium under which the question of the validity of the marriage contract is referred to the lex loci contractus, and which is made binding by the consent of all nations, and professedly and directly operates upon all; and that, while every country can regulate the status of its own citizens, until the will of the state finds clear and unmistakable expression to the contrary, that law must control. Judge Marshall says in U. S. v. Fisher, 2 Cranch, 389, that laws thereof, although some minor inconveniences may arise therefrom, than to shake general confidence in such marriages, to subject the innocent issue to constant doubts as to their legitimacy, and to leave the parties themselves at liberty to cut adrift from their solemn obligations whenever they happen to become dissatisfied with their lot. Story, Confi. Laws, pl. 124. Judgment that there is no error in the proceedings of the county court, and that the prisoner take nothing by her exceptions. The respondent not being in court, TAFT, J., did not sit. In re WELLS' ESTATE. (Supreme Court of Vermont. Chittenden. July TIES. 1. The decree of the probate court having the estate of testator and parties interested before it, and having jurisdiction and the duty to determine the rights of petitioner in the estate, which gives to her a life estate in the property, but in terms makes no disposition of the fee, not having been appealed from, is a bar to a petition by her bringing no new facts before the court, but asking that a conditional devise over be declared void, and the estate vested in her absolutely. "where rights are infringed, where fundamental principles are overturned, where the general system of the law is departed from, the legislative intent must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects." Brook v. Brook, 9 H. L. Cas. 193, sustains the prisoner's contention. There a man and his deceased wife's sister, both of whom were lawfully domiciled British subjects, went temporarily to Denmark, and were there married, where their marriage was valid; but it was held void in England, because an English statute prohibited such marriages. The law lords delivered separate opinions, and the only ground upon which they agreed was that, as the statute made such marriages between English subjects domiciled in England void because declared by the act to be contrary to the law of God, it must be construed to include such marriages though solemnized abroad. Judge Gray says, in Com. v. Lane, above cited, that the judgment in that case proceeds upon the RES JUDICATA-WILL-CONSTRUCTION-Perpetuiground that an act of parliament is not merely an ordinance of man, but a conclusive declaration of the law of God, and that the result is that the law of God, as declared by act of parliament, and expounded by the house of lords, varies according to time, place, length of life of parties, pecuniary interests of third persons, petitions to human tribunals, and technical rules of statutory construction and judicial procedure. Mr. Bishop criticises the case very sharply, and says it is of the highest importance that it be sufficiently understood in this country to avoid any accident of its being followed by our courts. He discusses it very fully, admitting that it was difficult for him to write soberly about it, as the decision was announced in apparent oblivion of the course that justice had taken for ages in England, and ignored alike acts of parliament and judicial decisions. To follow it, he says, would lead us into confusion not to be endured where marriage, good order, and Christian decency are respected. The French law is much like the English in this regard, though more exacting. By the Code Napoleon, a marriage contracted in a foreign country between French people, or between a French person and an alien, is valid if it has been celebrated in the manner followed in such country, provided it has been preceded by the publication required by the Code, and provided the French person has not violated the provisions of the Code concerning the qualifications and conditions required to contract marriage. Cachard's French Civ. Code, art. 170. This accords with the further provision of the Code that laws relating to the status and capacity of persons apply to Frenchmen even resident in a foreign country. Id. art. 3. On this principle the civilians generally, we think, hold that as to capacity to marry the law of the domicile governs. But the other view, as suggested by Judge Story, is founded upon a more liberal basis of international policy that deems it far better to support as valid marriages celebrated in another state or country when in conformity with the 2. A daughter to whom testator gives a life estate in his property with remainder to heirs of her body, with provision that, if she leave no heirs of her body, then the property shall go to a church, has no interest in the question whether the contingent executory devise to the church is void; but this, in case she leaves no such heirs, will be a question between testator's heirs and the church. 3. Testator, who, with his wife, was well advanced in years, and had but one child, grown to womanhood and married, gave, after termination of life estate to his wife, a life estate to his daughter, with remainder to the heirs of her body, with provision that if she die "leaving no heirs of her body, or should I at any future time fail to have heirs of my body," then the property shall go to. a church; and further provision that the church is not to have any interest in the property till after death of his wife and daughter, and not then unless his daughter dies, leaving no heirs of her body. Held, that by the words, "or should I at any future time fail to have heirs of my body," testator meant only his daughter, and such as might descend through her, and did not contemplate another line of heirs of his body; so that the devise over to the church did not contravene the law against perpetuities. Exceptions from Chittenden county court; Rowell, Judge. Petition of Lucia R. Ward to the probate court to have the estate of Oliver Wells, deceased, finally decreed to her, was dismissed, and she appealed to the county court, which also dismissed the petition. Appellant excepts. Affirmed. S. C. Shurtleff and J. J. Monahan, for plaintiff. L. F. Wilbur and Charles T. Barney, for defendant. ROSS, C. J. On February 15, 1895, the appellant, Lucia R. Ward, preferred her peti tion to the probate court for the district of Chittenden, setting forth that she is the daughter and heir at law of Oliver Wells, deceased, and legatee under his will, and that she is advised and believes that the Congregational Church of Underhill has no interest in the estate under the provisions of the will; that the limitation or devise over to it is too remote and void; and that upon the death of Rebecca Wells all the estate vested in her absolutely. She prays that a decree may be made accordingly. The court appointed a time for hearing the petition, and gave due notice thereof. On the day appointed, the Congregational Church appeared and filed a motion to dismiss the petition, assigning, among other reasons, that the petitioner was concluded by a previous adjudication of the court, and that the will was not void, as to the Congregational Church, for remoteness. Upon appearance and hearing the probate court dismissed the petition. From this decree the petitioner appealed to the county court. In the latter court the Congregational Church pleaded the general issue and seven special pleas in bar, all of which set up as conclusive upon the appellant, and in bar of her application, a decree of the probate court made December 19, 1890, on the settlement and distribution of the estate of the testator. The appellant joined issue on the general issue, and replied precludi non to the special pleas, because she says that the property mentioned in her petition, consisting of both real estate and personal estate, has never been finally decreed to her, nor to the church, nor to any person or corporation whatsoever, by the probate court, which alone has jurisdiction to make such decree, and that title to the property is uncertain. The replication was traversed, and the trial was by the court. On the trial the court found that the decree of the probate court of December 19, 1890, and the portions of the will of Oliver Wells material to the issue, are correctly set forth in the third and fourth special pleas; that by that decree the appellant was given the use of the residue of the estate during her natural life, and that the fee of the residue was not thereby decreed to any one, nor has it been since then. On these findings the county court rendered judgment dismissing the petition of the appellant against her objection and exception. The material facts set forth in the pleas found to be true are that Oliver Wells deceased testate in 1887; that his will was duly probated; that by his will he gave the use of all his estate-First, to his wife, Rebecca Wells, during her natural life; secondly, at her decease, to his only daughter, the appellant, and the reversion to the heirs of her body, "and, should my beloved daughter, Lucia R. Ward, die, leaving no heirs of her body, or shall I at any future time fail to have heirs of my body," then the real and personal property, constituting his estate, is given in fee simple to the Congregational Church at Underhill Flats. This gift to the church has a condition in regard to its use by the church, and then the will proceeds: "The said church is not to have any interest in the aforesaid real estate and personal property until after the decease of my beloved wife, Rebecca Wells, and my beloved daughter, Lucia R. Ward; and is not then to have any interest in it unless my said daughter dies leaving no heirs of her body." The pleas further set forth that after probating the will, and after the executor had rendered his final account, and had it settled, and after finding both what estate was left and that Rebecca Wells had deceased, on due notice and appearance of all parties interested, on December 19, 1890, the probate court, "pursuant to the last will and testament of the deceased and the laws of this state," did decree to Lucia R. Ward, the petitioner, the use of the residue of the estate during her natural life. This decree was not appealed from by any of the parties, and is now in full force. The first contention is whether it precludes the petitioner from the relief sought through her petition. December 19, 1890, the probate court had the subject-matter-the estate of Oliver Wells-and the parties interested therein before it. It had full jurisdiction to determine, and it was its duty to determine correctly, the rights of the petitioner in and to the estate, and to make a decree thereof. If the devise to the Congregational Church is now void under the law against perpetuities, it was so then. If the petitioner is now entitled to have the estate decreed to her in fee, she was so entitled then. Hence the identical subject-matter brought before the probate court by this petition, and all facts relevant thereto, were then before it for determination and decree. By its decree she was given only a life estate in the property under adjudication. If she was then entitled to have the property decreed to her in fee, she was, by the decree, deprived of that right. A decree of the estate to her then or now in fee would operate to vacate and set aside the decree then made. A decree of the estate to her now in fee would collaterally attack and vacate the decree then made. It would cut the bond then placed around the property of the estate by which she could only enjoy its use during her life, and give her title, dominion, and absclute control of the property. By that decree she was deprived of the enjoyment of the fee, dominion, and absolute control of the proper ty. Being deprived of a right in the property which she now claims, she could have appealed from the decree, and had it corrected, if erroneous. The decrees of the probate court made in matters and against parties within the sphere of its jurisdiction, not appealed from, are conclusive upon those to whom the right of appeal is given. Collard v. Crane, Brayt. 18; Judge of Probate v. Fillmore, 1 D. Chip. 420; Giddings v. Smith, 15 Vt. 344: Lawrence v. Englesby, 24 Vt. 42. Nor can such decrees be attacked or impeached collaterally in the probate court, or in any other court. Rix v. Smith, 8 Vt. 365; Lawrence v. Englesby, 24 Vt. 42; Driggs v. Abbott, 27 Vt. 580; Abbott v. Colburn, 28 Vt. 663; Richardson v. Merill, 32 Vt. 27; Robinson v. Swift, Id. 283; Probate Court v. Vanduzer, 13 Vt. 135. The petition brought before the probate court no facts which were not before it when it made the decree of December 19, 1890. The same parties were then before the court which the petition brought before it. It has always been held that the decisions of this court on the same facts and between the same parties are conclusive when the case comes a second time before the court. Ross v. Bank, 1 Aik. 43; Dana v. Nelson, Id. 252; Herrick v. Belknap, 27 Vt. 673; Stacy v. Railroad Co., 32 Vt. 551; Barker v. Belknap, 39 Vt. 168; Childs v. Insurance Co., 56 Vt. 609; Railroad Co. v. Hunt, 59 Vt. 294, 7 Atl. 277. This doctrine is applicable to the decrees of the probate court made within its jurisdiction. Nor is the result changed by the finding of the county court that no final decree in regard to the fee of the property had been made by the probate court. By the terms of the will the time had not arrived when the probate court could determine in whom the fee of the property vested absolutely. That time will not arrive until the death of the petitioner. If then there exist heirs of her body, the fee will be ascertained to be vested in such heirs. Although no persons now exist who would constitute heirs of the petitioner's body, the possibility of such heirs coming into existence is not precluded until the death of the petitioner. If no such heirs then exist, it will be for the probate court to determine whether the conditional executory devise to the Congregational Church is void under the rule against perpetuities, and, if so, to decree the property in fee to the heirs of the testator, and, if not void, to decree it to the Congregational Church under the provisions of the will. This is the scope of the decree of the probate court of December 19, 1890, and it is correct. The terms of the devise to the petitioner create what, at common law, would be an estate in fee tail (Giddings v. Smith, 15 Vt. 344), which, under V. S. § 2201, and which before the statute, gave the petitioner a life estate only in the premises. Giddings v. Smith was three times argued, carefully and fully considered, and has ever since been followed. Village of Brattleboro v. Mead, 43 Vt. 556; Thompson v. Carl, 51 Vt. 408; Doty v. Chaplin, 54 Vt. 361; In re Kelso's Estate, 69 Vt. 272, 37 Atl. 747. Hence the decree of December 19, 1890, was correct so far as concerns the petitioner. She has no interest in the question whether the contingent executory devise to the Congregational Church is void or not. That question will never arise if she dies leaving heirs of her body. If she leaves no such heirs at her decease, it will be a question between the heirs of the testator and the Congregational Church. But, if there is any doubt in regard to the finality and correctness of that decree, the construction placed upon the will by the decree of December 19, 1890, gives effect to the intention of the testator. His intention is to be ascertained from a careful consideration of all the provisions of his will read in the light of existing circumstances. By the will, the testator has provided, in very explicit terms, that, after the termination of the life estate therein given to his widow, a life estate shall be created in the property "to my only and beloved daughter," with remainder "to the heirs of her body." He then proceeds to say, "And should my beloved daughter, Lucia R. Ward, die, leaving no heirs of her body, or should I at any future time fail to have heirs of my body, then it is a part of my will and testament" that the property in contention shall be the property of the Congregational Church, to be used for the purposes specified. If the words, "or should I at any future time fail to have heirs of my body," had been omitted, it is not seriously contended that the devise over to the Congregational Church would have been void for remoteness. The language used in the first clause, "die leaving no heirs of her body," import that the time when, if ever, the estate is to pass to the church is at the decease of the petitioner. If then she had an heir or heirs in the descending line, child or grandchild, living, such heir or heirs take the property, and the church takes nothing. If at that time she left no such heir, the Congregational Church takes the property. In such case it is conceded that the devise over would not be defeated by reason of remoteness. But it is contended that the addition of the words, "or should I at any future time fail to have heirs of my body," creates such remoteness under the decision of Village of Brattleboro v. Mead, 43 Vt. 556, as to defeat the devise to the Congregational Church. In that case, and generally, it is held that the intention of the testator in regard to the remotest time when the devise over shall take effect determines whether such remotest time is within the rule against perpetuities; and that his intention in this respect is to be ascertained from all the language of his will on the subject, read and construed in the light of existing, surrounding circumstances, independently of whether it will bring that time within or without the time limited by the rule against perpetuities. These circumstances existed when the testator made his will. The testator and his wife were well advanced in years. He had only one child, grown to womanhood and married. He expected his wife might outlive him, for he made provision for such a condition. Under these circumstances, it is hardly reasonable to construe the language, "or should I at any future time fail to have heirs of my body," as |