2. EVIDENCE (§ 99*)-COLLATERAL FACTSREASON OF EXCLUSION.

The reason for the rule excluding all evidence of collateral facts which are incapable of affording any reasonable presumption or inference as to the fact in dispute is that such evidence tends to draw away the minds of the jurors from the point in issue, and to excite prejudice, and mislead them.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 138; Dec. Dig. § 99.*] 3. WITNESSES (8 405*)-IMPEACHMENT AS TO COLLATERAL INQUIRIES.

It is the uniform rule that answers to col

lateral inquiries on cross-examination cannot be contradicted by the party inquiring.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 1275; Dec. Dig. § 405.*] 4. WITNESSES (8 405*)-IMPEACHMENT AS TO COLLATERAL INQUIRIES.

Where the plaintiff brought an action of assumpsit on an account annexed containing an item for boarding the defendant's horse, and the defendant contended that the plaintiff agreed to keep the horse for its use, and on cross-examination the plaintiff was asked if, prior to the time of taking the defendant's horse, he did not offer to keep the horse of one Buker for its use, and the plaintiff answered that he did not, and Buker was called by the defendant and permitted against objection to testify that the plaintiff did offer to take his horse for its keeping, held (1) that the evidence relating to the Buker horse was collateral to the issue, and should have been excluded; (2) that the defendant, having inquired of the plaintiff on cross-examination concerning a collateral matter, should have been held to abide the answer, and not have been permitted to present testimony tending to disprove it.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 1275; Dec. Dig. § 405.*] (Official.)

"Q. Didn't you ever say anything to Percy Buker about taking his horse for his keep? "A. No, sir.

"Q. You swear to that, don't you? "A. Yes, sir; sure."

The said Percy Buker, called by the defendant, in direct examination testified as follows:

"Q. In 1905 or 1906 in the fall did you have some talk with Maurice Provencher about his taking your horse?

"A. I did.

"Q. What did he say?

"Mr. Gower: I object, as a collateral is

sue.

"Mr. Goodwin: I want to show that Mr. Provencher at this time was offering to take another horse for his keep as we say he did this.

"The Court: He denied it on the stand? "Mr. Goodwin: Yes. "The Court: I admit it, and you may have an exception.

"Witness: He wanted to know if I would

sell my horse, and I said 'No.' He says 'I will take her for her keeping through the winter, if you want me to.' "Q. What did you say?

"A. I said I had a place for her."

The plaintiff excepted to the rulings admitting the aforesaid testimony of the witness Buker.

Argued before EMERY, C. J., and SAVAGE, PEABODY, KING, and BIRD, JJ. Gower & Hight, for plaintiff. Forrest Goodwin, for defendant.

KING, J. Action of assumpsit on an account annexed containing an item for boarding the defendant's horse. The defendant contended that the plaintiff agreed to board. the horse for its use. On cross-examination the plaintiff was asked if, prior to the time of taking defendant's horse, he did not offer

to keep the horse of one Buker for its use.

Assumpsit on account annexed, in which the plaintiff sought to recover, among other things, for boarding the defendant's horse. Plea the general issue, with brief statement of payment. Verdict for defendant.

During the trial and on cross-examination the plaintiff testified as follows:

ceptions must be sustained.

"You are not to draw inferences from one transaction to another that is not specifically connected with it merely because the two resemble each other. They must be linked together by the chain of cause and effect in some assignable way before you can draw your inference." Stephen, Ev. 198, note VI. The only logical probative effect of Buker's

"A. No, sir.

"Q. Didn't you try to get Percy Buker's? "A. No, sir.

then willing to take his horse for her keeping. Because that offer of plaintiff is similar in kind to the agreement for which the defendant contended, it does not follow that

"The E. A. Strout Farm Agency, Boston-New York.

"Number 10,315.

"I hereby place the property, real and personal, of which a description has been given, in your hands for sale. If the same is sold to any party through your influence, by advertisement or otherwise, I will pay to you or your order a commission of all you get in excess of $5,000, clear to me. In case I should sell the property to your customer for less than $5,500, I will pay to you or your order a commission of two hundred dollars; or if the sale exceeds $2,000, ten per cent, on the full amount of sale. This commission to be due and payable the day sale is effected. Should I withdraw the said estate from your hands before you have effected a sale, I will, in consideration of your having listed the property, pay you forthwith $20.00 or 1 per cent. of the asking price, if above $2,000. "Should the estate be sold either before or after withdrawal to a customer to whom you or your agents have recommended it, or who has learned that it was for sale, directly or indirectly, through you, your agents or your advertisements, I will pay your commission as agreed.

"In case any money is paid to me to bind the trade by any of your prospective customers, and they forfeit this money to me as damages for not keeping their part of the agreement, I will pay one-half of said money to you.

"Agent, O. P. Whittier. "[Signature] "Dated, Oct. 21, 1905."

Daisy E. Gay.

The defendant does not deny that she withdrew the sale of her property from the agency. Thereupon the plaintiff claimed it was entitled to $50 or 1 per cent. of the asking price. The only ground upon which the defendant agreed to pay this commission was in consideration of the plaintiff having listed the property. It was therefore incumbent upon the plaintiff to prove that it had done this. It will be observed from reading the contract that listing was the only thing the plaintiff undertook to do. Other than this, the contract was absolutely one sided. The evidence upon which it seeks to establish performance on its part is found in a single question and answer: "Q. And leaving the description and making the contract constitutes listing, does it? A. Yes, sir."

The real question at issue is the meaning of the word "listed" as used in the con

The Century Dictionary defines "list": "To put into a list or catalogue; register; enroll." This is the common and ordinary sense in which the word is used, and the one in which the defendant undoubtedly understood it, and had a right to so construe its meaning. We are unable to surmise how the plaintiff could conceive that, in the mind of the defendant, the word meant less. It must be held that the plaintiff had reason to know that the defendant would interpret the word as calculated to require something more than taking a description of the property which she had a right to suppose the plaintiff intended to make an effort to sell.

It appears from the case that the original plaintiff was a real estate broker and had established in this state an agency for the sale of all kinds of real property. The defendant desired to sell her "camps," as they are called, and proceeded to the defendant's agency for the purpose of placing them in his hands for sale. In negotiating with the plaintiff, the evidence of which was excluded, the defendant gave a description of her property to the agent and then signed a contract, in which the plaintiff agreed to list it. Here another rule of construction may be applied as laid down in Hawes et al. v. Smith, 12 Me. 429, in which the court say: "Nothing can be more equitable than that the situation of the parties, the subject-matter of their transaction, and the whole language of their instruments should have operation in settling the legal effect of their contract; but it would be a disgrace to any system of jurisprudence to permit one party to catch another, contrary to the spirit of their contract, by a form of words, which perhaps neither party understood." In view of this rule, it seems incredible under the circumstances of this case that either party to this contract should have understood the word "list" to mean the mere filing of an inventory of the property to be sold, with the agency of the plaintiff. In view of the surrounding circumstances and the purpose of the contract, we are of opinion that the most restricted construction of the word "list" would at least convey a meaning as broad as the definition above quoted from the Century Dictionary

that is, to catalogue, register, or enrollso that some mention of the property would appear in some of its pamphlets advertising property for sale.

There is evidence in the record which tends to show that this was the interpretation plac

of the exhibits reads upon the cover, which contains an attractive illustration of a house and surroundings: "Strout's List No. 19." Another: "Supplement A. to Strout's List No. 19." And still others with different headings. While it does not appear that these documents were shown to the defendant, during the negotiations for the listing of her property, they yet may be considered as a circumstance tending to show the proper interpretation of the language used in the contract.

The plaintiff's own evidence shows that it did not comply with the terms of its contract as herein interpreted by the court. It failed to list the property as the contract required. As the verdict was against the law and the evidence, the exceptions need not be considered.

1. TRUSTS (8 171*)-TRUSTEE-POWER.

While it is true that, under the original theory of a trust, the powers and duties of the trustee were confined substantially to holding and caring for the property, it is equally true that the purposes of the modern trust are of a much broader character, requiring ordinarily much greater powers on the part of the trustee, including a power of sale, which is generally expressly given.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. 226; Dec. Dig. § 171.*] 2. TRUSTS ( 191*) — TRUSTEE SALE.

POWER OF

When a trustee under a will is charged with a duty which cannot be performed without a power of sale, and no power of sale is expressly given by the will, a power of sale will be implied.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. 243; Dec. Dig. § 191.*]

3. TRUSTS (§ 191*)-TRUSTEE-Power of Sale -"INVEST AND MANAGE."

The words "invest and manage" in the will of a testator import and imply a power of sale, unless a contrary intention can be found in the will taken as a whole.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. 243; Dec. Dig. § 191.*

For other definitions, see Words and Phrases, vol. 4, pp. 3755-3758.]

4. TRUSTS ( 191*) — CONSTRUCTION PAID."

Where a testator directed that one-fourth of the principal of her residuary estate "shall be paid to the children or direct descendants of my said deceased child," held, that the term "be paid" was applicable exclusively to personalty.

[Ed. Note. For other cases, see Trusts, Cent. Dig. 243; Dec. Dig. § 191.*]

5. TRUSTS ( 191*)-CONSTRUCTION-TRUSTEES -POWER OF SALE.

Where a testatrix by her will left the residuum of her estate to her executors in trust, to invest and manage and pay over the income

to her children during their lives, with directions, upon death of any one of the children, the residuary estate should be paid to the chilthat a proportionate part of the principal of dren or other direct descendants of such deceased child.

Held:

(1) That the trustees could not ascertain the true amount of the estate or pay over the fractional part directed to be paid to the children of a deceased child until the whole estate had been converted into money.

(2) That upon the whole will it was the intention of the testatrix that the trustees should have power to sell the real estate devised by the residuary clause and give to the purchaser her will so directs. or purchasers good title in fee simple, and that

[Ed. Note.-For other cases, see Trusts, Cent. Dig. § 243; Dec. Dig. § 191.*] (Official.)

Report from Supreme Judicial Court, Hancock County, in Equity.

Bill by Lydia M. B. Robinson and others as executors and trustees under the will of Mary D. Biddle, deceased, against Lydia M. B. Robinson and others as individuals, for the construction of the will of Mary D. Biddle, deceased. Case reported to the law court. Will construed.

Bill in equity brought by "Lydia M. B. Robinson, of Paoli, county of Chester, commonwealth of Pennsylvania, Christine W. Biddle, of Philadelphia, said commonwealth, Spencer F. B. Biddle, of Graham, state of Montana, and Henry J. Biddle, of Vancouver, state of Washington, as executors and trustees under the last will and testament of Mary D. Biddle, late of said Philadelphia," against "Lydia M. B. Robinson, Christine W. Biddle, Spencer F. B. Biddle, Henry J. Biddle as individuals, Lydia Spencer Moncure Robinson (daughter of Lydia M. B. Robinson), Spencer Biddle and Rebecca Biddle both of said Vancouver (minor children of Henry J. Biddle)," asking for the construction of the last will and testament of the said Mary D. Biddle.

In lieu of a formal answer to the bill the defendants filed the following agreement: "It is hereby agreed that the allegations of fact in complainants' bill are true and the respondents join in the prayer of complainants for a construction of the will of Mary D. Biddle."

When the cause came on for hearing before the justice of the first instance, it was agreed to report the case to the law court for determination.

The case is stated in the opinion. Argued before EMERY, C. J., and SAVAGE, PEABODY, CORNISH, KING, and BIRD, JJ.

Edward B. Mears, for plaintiffs. Hale & Hamlin, for defendants.

BIRD, J. This bill in equity is brought by the executors and trustees under the will of