ment, have been frequently passed upon by
the courts. In Fling v. Goodall, 40 N. H. 218,
in speaking of the act of 1841, the court said
that it made "provision for holding persons
as trustees, on account of negotiable notes and
other choses in action, either lodged or pledg-
ed in their hands," citing sections 18 to 21,
c. 208, Rev. St. 1843. In Wheeler v. Emer-
son, 45 N. H. 526, the trustee was held charge-
able, not only for notes in his possession,
signed by other persons and payable to the
principal defendant, but also for mortgages
in his possession made to secure the notes.
In Mitchell v. Green, 62 N. H. 588, 590, a
trustee to whom certain accounts had been as-
signed, and who was given possession of the
books containing them, was held chargeable
for whatever money he had collected upon "the
accounts
* beyond what was neces-
sary for the payment of his debt, the uncollect-
ed accounts themselves, and the books contain-
ing evidence of the accounts assigned and
necessary for their collection"; and it was
also held that, "if the books containing evi-
dence of the accounts assigned were not nec-
essarily included in the assignment, they
were personal property in the possession of
the trustee, subject to his lien, and for these
he is chargeable as chattels." These deci-
sions clearly demonstrate that under our
statutes a trustee having in his possession
any note, chose in action, or other personal
property belonging to the principal defend-
ant may be adjudged chargeable therefor,
whether the same is or is not held subject to
mortgage, pledge, or other lien, and, if charge-
able, that a receiver may be appointed. Pub.
St. 1901, c. 245, §§ 28-32.

ship, to the defendants' assignee, was strictly in accordance with the provisions of the statute. It is of no moment whether the principal defendant did or did not indorse the check with intent that the trustee should collect it.

Exceptions overruled. All concurred.

(75 N. H. 204)

GREEN et al. v. BANCROFT. (Supreme Court of New Hampshire. Cheshire. March 2, 1909.)

STATUTES (§ 218*)-CONSTRUCTION - DESCENT AND DISTRIBUTION-COLLATERAL HEIRS. Laws 1789, p. 77, prescribing the course of descent of intestate property, should not be construed to allow persons related to decedents in the third degree to inherit by representation, since such construction would contravene the practice under the statute for 120 years, and the construction given in former decisions and adopted by re-enactments of the same provision in Gen. St. 1867, c. 184, §§ 1, 3, Gen. Laws 1878, c. 203, §§ 1, 3, Laws 1883, p. 48, c. 72, Pub. St. 1901, c. 196, §§ 1, 3, and Laws 1903, p. 66, c. 74; the act of 1883 merely changing the limit beyond which collaterals cannot take by representation, and not undertaking to change the settled meaning of the existing law. [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 294; Dec. Dig. § 218.*]

Transferred from Superior Court, Cheshire County; Stone, Judge.

In the matter of the estate of Maria R. Adams, deceased. The probate court decreed the unbequeathed estate to Jemima H. Bancroft, and, the decree having been affirmed on appeal by Albert A. Green and others, they except. Exception overruled.

Hall & Adams, Townsend, Avery & Button, and Streeter & Hollis, for plaintiffs. Cain & Benton, for defendant.

PEASLEE, J. The appellants contend that the act of 1789 (Laws 1789, p. 77) changed the rule for representation among collaterals, so that thereafter all those who were related to the deceased in the third degree could take in this manner. It is admitted that this construction is contrary to the practice under the statute for 120 years, and to the decided cases (Kelsey v. Hardy, 20 N. H. 479; Dodge v. Lewis, 71 N. H. 324, 51 Atl. 1071); but it is urged that this practice and these decisions are so plainly erroneous that they should not be followed.

The possible inability of a receiver appointed in this state to collect notes or other choses in action from parties residing in another jurisdiction furnishes no stronger ground for the refusal to attempt the collection than the like possibility of failure because of the insolvency of a maker residing here. The effect of a refusal by a nonresident to make payment, and by the courts of his state to permit a receiver appointed here to prosecute a suit for the collection of such securities, is not in question. The receiver in this case has collected the check, and the proceeds are under the control of the court. The check was a chose in action, a part of which was the property of the defendant and a part that of the trustee. While the trustee did not hold the check upon mortgage or pledge from the defendant, his right to the possession of it is aptly described by the term "other lien," used in the statute. Mitch-ceived a definite construction. "No represenell v. Green, supra.

The English statute of 1672, providing that there should be no representation among collaterals "after brother's and sister's children" (St. 22 & 23 Car. II, c. 10), early re

tation was admissible, except between broth

The process followed of appointing a receivers and sisters of the intestate and their chiler, the collection of the check, and the distribution of the proceeds by payment to the trustee of his interest in the check, to the plaintiff the amount of his judgment, and the balance, less the costs of the receiver

dren." Page v. Parker, 61 N. H. 65. This statute was re-enacted in the colony in 1718. Prov. Laws (Ed. 1726) p. 103. In 1789 the statutes regulating administration and the distribution of estates were revised,

and the phrase "beyond the degree of" was be that the court did not have the benefit of substituted for "after." Many other changes the argument now advanced, and that, if it were made at that time. Some were substan- had, a different result would have been tial, but most of them were merely formal. reached. The fact remains that the meaning It was then understood that this change be- of the statute was declared by the court, and longed to the latter class. Chief Justice Jere- has since been adopted by legislative re-enmiah Smith, writing between 1797 and 1805 actments of the same provision. Gen. St. (Smith [N. H.] 447, note 1), on the taking by 1867, c. 184, §§ 1, 3; Gen. Laws 1878, c. 203, next of kin, says: "The children of the broth- §§ 1, 3; Laws 1883, p. 48, c. 72; Pub. St. ers and sisters of the intestate representing | 1901, c. 196, §§ 1, 3; Laws 1903, p. 66, c. 74; their parents, but no further representation Parsons v. Durham, 70 N. H. 44, 47 Atl. 600. being admitted among collaterals." Treatise on Probate Laws, Smith (N. H.) 462. In the earliest reported case involving this statute it was said to be essentially a copy of the English act. Parker v. Nims, 2 N. H. 460. Shortly thereafter Chief Justice Richardson declared that this proviso was substantially the same as that in the act of 1718. McAfee v. Gilmore, 4 N. H. 391, 396. In the revision of 1842 the statute was arranged in its present form, and the limitation in question was made a separate section. Com'rs' Rep. Rev. St. c. 169, §§ 1, 3; Rev. St. 1843, c. 166, §§ 1, 3.

It is suggested that the rule "that, when the Legislature adopts or re-enacts a statute, the previous construction of the statute as settled by courts of law is adopted" (Tomson v. Ward, 1 N. H. 9, 12), ought not to apply here, because the decided case may be somewhat obscure, and because the opinion does not cite the chapter and section of the statute which it construes. If this argument has force as to the revisions of 1867 and 1878, it fails as to that of 1891. In 1881 the fact that Kelsey v. Hardy construed this statute and followed the English rule was plainly stated, and the decision was expressly approved by the court. Page v. Parker, 61 N. H. 65. An examination of the briefs in this case gives added weight to the language of the opinion. Counsel suggested in argument the theory, now advanced, that the statute was intended to include all who were related to the deceased in the third degree. 131 Briefs and Cases, 415. At this time, if not before, the court had the benefit of the reasoning now relied upon. The question long ago ceased to be: What is the primary meaning of the language used in the act of 1789? "By common understanding and repeated judicial definition, adopted by the legislative re-enactment of the statute" (Wyatt v. Board of Equalization, 74 N. H. 552, 557, 70 Atl. 387), the meaning of the language has be come fixed. There being "no evidence that in 1891 the soundness of the judicial conclusion * * * had ever been questioned," the argument as to its soundness is now without weight. Id.

Four years later the case of Kelsey v. Hardy, 20 N. H. 479, was decided. The question given the most consideration in the opinion was whether the paternal estate went to the maternal grandmother or to a paternal uncle; but the case shows that the question whether the uncle would take the whole estate, because he alone was of the paternal stock, was not the only one presented. If he could not thus claim the whole, he sought to take a part by right of representation. The agreed case states the questions thus: "But if the court shall be of opinion that the appellant, in his own right, as next of kin on the part of the father, or as representative of the paternal stock of him, is entitled to take the whole or any part of said estate, then the decree is to be so far reversed." Id. 480. The opinion states the rule, under the English statute, "that no representation was admissible except between brothers and sisters of the intestate," and goes on to say: "These decisions, made at an early period, have been since considered as having settled the construction of the statute in the particulars to which they relate, and have not been successfully drawn in question since, so far as the cases have been brought to our notice." Id. 482. And having disposed of the claim to take the whole estate upon the paternal stock theory, the other claim to take a part of the estate by representation is finally dealt with as follows: "Its descent and distribution follow the general rule, which assigns it to the next of kin in equal degree. The grandmoth- | early date, and "has since been followed by er is the second, and the uncle, deriving kindred through a grandparent, is, of course, in the third, degree, and cannot share with her the inheritance."

It thus appears that the claim of one related to the deceased in the third degree to take by representation was presented to the

The act of 1883 (Laws 1883, p. 48, c. 72) does not undertake to change the settled meaning of the existing law. It merely changes the limit beyond which collaterals cannot take by representation. Formerly it was the children of brothers and sisters. Now it is their grandchildren. substantial reasons why the established construction of this statute should be followed, even if it be conceded that it is not the most scientific one of which the language used is susceptible. It was adopted at an

There are

our courts of probate in the distribution of estates. If it should be overturned, disastrous consequences would inevitably result in numerous instances." Page v. Parker, 61 N. H. 65. It is a rule of property which has been well understood for 120 years. Its reaffirmation in Dodge v. Lewis, 71 N. H. 324,

court by the action of succeeding Legisla- | sion, and publication, simply providing an adtures, was imperatively called for by the auditional method by which evidence of entry, thority of the decided cases and the practical etc., may be preserved, in the absence of which proof could only be made pursuant to the rules application of the law for more than a cen- of common law. tury. Tomson v. Ward, 1 N. H. 9, 12.

possession was properly found to have been
peaceable. The only question, therefore, is
whether what was done was sufficient to
give the mortgagee possession of the portion
of the land occupied by the house and barn,
which were not entered until a few days la-
ter. "When a man enters into land under
a deed, *
* such entry will give him
possession of all the land which the title un-
der which he enters embraces, because he is
presumed to enter, claiming according to his
title. The bounds of his possession will be
marked by the lines and monuments men-
tioned in his deed." Riley v. Jameson, 3 N.
H. 23, 27, 14 Am. Dec. 325; Breck v. Young,
11 N. H. 485, 492; Bailey v. Carleton, 12 N.
H. 1, 15, 37 Am. Dec. 190.

mortgage. Finding the doors of the house, session so taken, the mortgagee's continued and barn locked, he went upon the piazza of the house and there publicly announced that he took possession of the property in behalf of the defendant for the purpose of foreclosure. Notice of the entry was afterward published as required by law. At the time of the entry the plaintiff was in Concord, having been absent from Jefferson for a few months. When she went to Concord, she left her furniture in the house, locked the doors, and took the keys with her. A few days after the entry, probably within a fortnight, the defendant's agent procured a key, unlocked the doors of the house, and changed the locks. He also removed the lock from the barn, and put another in its place. He afterward moved the furniture from the house to the barn, and subsequently delivered it to the plaintiff at her request. He has repaired the buildings, cut the grass, paid the taxes for 1906 and 1907, and rented the premises. Since February, 16, 1906, the plaintiff has not attempted to enter upon the premises, and has exercised no act of | ownership over them, other than as above stated. The court found that the defendant's entry was peaceable, and her possession after February 16th was continued, actual, and peaceable, ruled that her entry and possession foreclosed the mortgage, and dismissed the bill. To this ruling and order the plaintiff excepted.

Andrews & Andrews and Edgar M. Bowker, for plaintiff. Martin & Howe, for defendant.

PARSONS, C. J. More than one witness to an entry for condition broken is unnecessary. Thompson v. Ela, 58 N. H. 490, 493. Section 16, c. 139, Pub. St. 1891, simply provides an additional method by which evidence of entry, possession, and publication may be preserved. Farrar v. Fessenden, 39 N. H. 268; Wendell v. Abbott, 43 N. H. 68, 73. But for the statute, proof of these facts could only be made pursuant to the rules of the common law. Seely v. Insurance Co., 72 N. H. 49, 55-57, 55 Atl. 425. The mortgagee's entry was without force or violence, and was unopposed. The possession so taken was not disturbed by the mortgagor, or any one in her right; but the mortgagee remained in possession, exercising dominion over the premises, as detailed in the evidence. The trial court found that the entry was peaceable, and that the defendant, after the date of the entry, for more than a year, had continued, actual, peaceable possession. The only fact urged as inconsistent with these findings is that entrance was not on the day of entry effected to the house and barn, which were locked; the keys being in the possession of the mortgagor, whose furniture was in the house. The entry without force, violence, or opposition was peaceable. Thompson v. Kenyon, 100 Mass. 108, 111. In

The entry into the premises under the mortgage was an entry upon, and gave the mortgagee possession of, all the land embraced in the mortgage. Green v. Pettingill, 47 N. H. 375, 93 Am. Dec. 444; Colby v. Poor, 15 N. H. 198; Hawkes v. Brigham, 16 Gray (Mass.) 561, 565; Jones, Mort. § 1254. Under the Massachusetts statute, the retention of such possession, obtained by peaceable entry into a part, operates as a foreclosure upon the whole, even if the mortgagor remains in occupation of a part, performing various acts of ownership. Fletcher v. Cary, 103 Mass. 475; Lennon v. Porter, 5 Gray (Mass.) 318; Bennett v. Conant, 10 Cush. (Mass.) 163. But in this state, by the general understanding of the meaning of the statute, the presumed possession following upon the mere entry is insufficient to sustain a foreclosure, if such possession has been interrupted by the subsequent entry and occupation of the mortgagor, or any one claiming under him, without actual recognition of, or submission to, the mortgagee's foreclosing possession. Bartlett v. Sanborn, 64 N. H. 70, 6 Atl. 486; Ray v. Scripture, 67 N. H. 260, 29 Atl. 454.

But the possession acquired by the mortgagee by the entry of her agent continued until there was an entry in opposition. Wallace v. Goodall, 18 N. H. 439, 449. No such entry has ever been made. Whatever might have been the effect of the mortgagor's retention of the keys to the buildings and the presence of the furniture in the house, if she had made entry, or had attempted by reason thereof to exercise a possession in hostility to the foreclosing possession of the defendant, the mere presence of personal chattels and the existence of locks, which the mortgagee did not find it convenient at once to force, is not conclusive evidence of personal entry and actual possession by the mortgagor. The plaintiff had notice, constructive and actual, of the foreclosing entry and possession, and asserted no rights in opposition thereto until after the year. A constructive possession, based on the keys and household furniture, if such could be found, would not, as matter of law, establish that the mort

actual. The finding of fact upon this point at so much per week or month or year will cannot be disturbed.