State v. Flint.

was determined in the case of State v. Carpenter, 60 Conn., 97, 102.

A further cause of demurrer was that the acts described in the ordinance constitute the crime of gaming or gambling, which is punishable by the general laws of the state, and that, as these provide a different penalty, the ordinance is inconsistent with the statute and therefore void.

The general laws of the state on the subject of gaming provide (Gen. Statutes, § 2559) that "every person who shall keep a place resorted to for the purpose of gaming, or which is reputed to be a gaming house, or place frequented for the purposes of gaming, or who shall engage in playing at any game for any valuable thing, or who shall reside in or frequent such place for such purposes, shall be fined not more than one hundred dollars, or imprisoned not more than six months, or both."

That" playing policy" is a method of gambling may also be considered as settled by the case of State v. Carpenter, (supra ;) but the particular acts complained of are not covered by section 2559. The defendant is charged with keeping "a place for playing in and conducting and carrying on the game, business and scheme commonly known as policy." This constitutes an offense under the ordinance, but not under the statute against gaming and gaming houses. That makes it unlawful to "keep a place resorted to for the pur. pose of gaming, or which is reputed to be a gaming house or place frequented for the purpose of gaming, "or to "reside in or frequent such place for such purpose," thus touching only places either in fact resorted to for gaming purposes, or having the reputation of being gaming houses or places of resort for gaming purposes. The complaint in question does not charge that the defendant kept a place of such a character. He could be convicted on proof that he kept a place for playing policy, although it had in fact never been resorted to for that purpose, and had not the reputation of being a place for playing policy, or a place resorted to for playing policy, and although he did not reside in it.

Neely v. Phelps.

It is an appropriate mode of suppressing policy-playing to prohibit keeping such a place as the complaint, following the language of the ordinance, describes; but, by keeping it, the statute, strictly construed, as all penal statutes must be, was not necessarily violated.

The defendant further urges that his conviction under this complaint may leave him subject to be again put in jeopardy, by a prosecution under the statute for keeping a place resorted to for policy-playing, or reputed to be such a place of resort. If the acts charged upon him in both proceedings were the same, the judgment in the first would be a bar to the second. Southport v. Ogden, 23 Conn., 128, 132. If they were different he could be rightfully punished for both offenses. State v. Welch, 36 Conn., 215, 217; Cooley on Constitutional Limitations, 6th ed., 239.

There is no error in the judgment appealed from.

In this opinion the other judges concurred.

WILLIAM NEELY, TRUSTEE, vs. FRANCES J. PHELPS AND

OTHERS.

New Haven & Fairfield Cos., June T., 1893.

ANDREWS, C. J., CARPEN

TER, TORRANCE, FENN and BALDWIN, JS.

A testatrix having given the residue of her estate to her four grandchildren, afterwards made the following codicil: "I revoke that portion of the will which gives Fan equal portion with the other granddaughters in my estate, and give to my granddaughter M, in trust for the benefit of F, all that was bequeathed by my will to F, but providing that in case F should die before M the sum in trust shall be given to the latter." M had since died. Held that F took the property in fee and freed from the trust.

[Argued June 13th-decided July 6th, 1893.]

SUIT for the construction of the will of Lavina Webb; brought to the Superior Court in New Haven County, and reserved, on facts found, for the advice of this court.

Neely v. Phelps.

A. D. Penney, for the plaintiff.

S. A. York, Jr., for the defendant Frances J. Phelps.

CARPENTER, J. This is a suit for a judicial construction of a will.

Lavinia Webb died in 1879. In 1873 she made a will, in which she gave the rest and residue of her estate to her four step-grandchildren. In 1874 she made a codicil, which is not now material. In 1877 she made another codicil, as follows:

"I revoke that provision in said will which gives Frances J. Thayer an equal portion with the other granddaughters in my estate, and give and bequeath to my granddaughter Mary C. Frink, in trust for the benefit of the said Frances J. Thayer, all that was bequeathed by my will to the said Frances, (excepting the clothing and the household articles, which have already been distributed,) but providing that in case the said Frances should die before the said Mary C. Frink, the sum in trust shall be given and bequeathed to the latter, her heirs and assigns forever."

Said Frances J. Thayer, now Frances J. Phelps, was one of the four residuary legatees named in the will. At the time the second codicil was made she was traveling in Europe, intending to be absent for a considerable time, and the testatrix then believed that she might not return to this country.

Mary C. Frink is dead, and the plaintiff has been appointed her successor in the trust. Her two children, and Frances J. Phelps and her sister, are supposed to be the only heirs at law of the testatrix. The children of Mary C. Frink make no appearance. The sister of Mrs. Phelps appears by counsel, and she consents to the disposition of the trust fund in the manner claimed by Mrs. Phelps. Mrs. Phelps claims that the trustee should pay and deliver the estate to her, free from the trust, and has made demand to that effect. That question depends upon the construction of the will; and that construction, as in other cases, depends upon the intention of the testatrix.

Neely v. Phelps.

In the will the estate in question was given to Mrs. Phelps in fee. We start then with that as her primary intention. How far does the second codicil indicate a change in her purpose? She certainly has not in terms carved out of the estate a life estate. There is no gift of a life estate to one, with a remainder over to another. There is no separation of income or interest from principal. The whole estate, principal and use, is given to Mrs. Frink for the benefit of Mrs. Phelps. It is then a simple trust, no terms or conditions are imposed. There is no direction as to the time the trust is to continue, nor as to the disposition of the estate or the income. There is no gift of the remainder as such, but contingently, if Mrs. Frink survives Mrs. Phelps, she is to have the entire property.

Evidently the testatrix intended to prevent intestacy, and that the estate should go either to Mrs. Phelps or Mrs. Frink, Mrs. Phelps to have the preference. She was apprehensive that Mrs. Phelps might not live to receive and enjoy the property; that she might not return from Europe. In that event only did she give it to Mrs. Frink. The inference is a natural one, and a pretty strong one, that she intended, if she did live to receive it, and actually survived Mrs. Frink, that the property should be hers. That contingency has actually happened. It is quite clear that no beneficial interest ever vested in Mrs. Frink, and that she did not intend that any part of her estate should be intestate. As the conditions on which Mrs. Phelps is to take actually exist, and as no reasons are shown why the trust should continue, it would seem to be reasonably certain that the testatrix intended in the present circumstances that she should take the property free from the trust.

There is no legal difficulty in carrying into effect that intention. 1 Lewin on Trusts, 18; 1 Perry on Trusts, § 18; 2 Perry on Trusts, §§ 520, 521.

The Superior Court is advised to decree the delivery of the property to Mrs. Phelps.

In this opinion the other judges concurred.

Gunn's Appeal from Probate.

ALBERT W. GUNN'S APPEAL FROM PRobate.

New Haven & Fairfield Cos., June T., 1893. ANDREWS, C. J., CARPENTER, TORRANCE, FENN and BALDWIN, JS.

A will was contested upon the ground of undue influence used upon the testator to induce him to make his will in favor of certain relatives of his wife to the exclusion of his own relatives. Held that evidence was admissible in support of the will that the property disposed of by it had, previous to the making of the will, been given to the testator by his wife, since deceased, by her will, and by her sister by deed, and that at the time they expressed to the testator their desire that on his death the property should be given to their relatives.

[Argued June 7th-decided July 6th, 1893.]

APPEAL from a probate decree approving the will of Stephen Hawley; taken to the Superior Court in Fairfield County, and tried to the jury before Thayer, J. Verdict sustaining the will, and appeal by the original appellant for error in the ruling of the court as to evidence. The case is fully stated in the opinion.

S. Tweedy and R. J. Shadbolt, for the appellant.

S. Judson, Jr., for the appellees.

FENN, J. The record presents only a single question for our consideration. The appellant, who was a nephew and one of the next of kin and heirs at law of Stephen Hawley, deceased, opposed the probate of the will of said Hawley, which disposed of an estate of about $40,000 without mentioning the appellant; and upon the trial to the jury, in the Superior Court he claimed, and offered evidence to prove want of capacity in the testator, and undue and improper influence exerted over him by and in behalf of those claiming under the will. The appellee claimed and offered evidence to the contrary. It appeared from the evidence, and was undisputed, that substantially the entire estate of the testa