tion that the existing use would be continued. Hancock Mut. Life Ins. Co. v. Patterson. Opinion by Mitchell, C. J.

[Decided Sept. 15, 1885.]

VERMONT SUPREME COURT ABSTRACT.*

MORTGAGE-PRIVITY OF CONTRACT-SUBROGATION. -A. sold his farm, incumbered with three mortgages, to B., and B., ignorant of the first two, assumed the third. Then C. and D. virtually exchanged farms; that is, under an agreement with the three, B. deeded to C., and C. deeded his own farm to D., and D. executed a mortgage back to secure the payment of said third mortgage. The orator owning, foreclosed the first two mortgages; and while the foreclosure proceedings were pending, before his title became absolute, purchased said third mortgage. A bill having been brought to foreclose against D., held, that D.'s promise, though not in terms to any one, was in legal intendment to the orator, inuring to his benefit, and that he was entitled to a decree. Whitcomb v. WhitteOpinion by Ross, J.

more.

INFANCY-AVOIDANCE OF CONTRACT-PLEADING.The defendant, while an infant, executed the note in contention for a horse, and before he attained his majority rescinded the contract, tendered the horse to the payee - which was refused and demanded the note. Held, in an action on the note, that the defendant could avoid his contract while under age, and that the avoidance and tender annulled it on both sides ab initio. An infant may avoid his contracts relating to personal property while under age and immediately. 1 Am. Lead. Cas. 258; Price v. Furman, 27 Vt. 268; Willis v. Twambly, 13 Mass. 204; Stafford v. Roof, 9 Cow. 627; Bool v. Mix, 17 Wend. 119, 132. The dictum to the contrary in Farr v. Sumner, 12 Vt. 31, is not sound, although not without some support in the authorities. But what was the effect of the avoidance and tender here rejoined? It was as between the parties, nothing else appearing, in the language of Shaw, C. J., in Boyden v. Boyden, 9 Metc. 519, to "annul the contract on both sides ab initio," and to divest the plaintiff of title to the note, and reinvest him with title to the horse. Willis v. Twambly; Badger v. Phinney, 15 Mass. 359; 1 Am. Lead. Cas. 258, 259. Willis v. Twambly is exactly in point. There the plaintiff, a minor, had a non-negotiable note, payable to himself, which he exchanged with Cook for a worthless watch. The next day, under the direction of his father, he disaffirmed the contract by tendering back the watch to Cook and demanding the note, which Cook refused to deliver, and also to take the watch. Subsequently the maker of the note, on being informed of the transaction, and receiving a discharge from plaintiff's father, gave a new note in lieu of the old one, after which Cook passed the old note to B., assuring him that it would be paid, and B. brought suit thereon against the maker in the plaintiff's name; and it was held that the note ceased to be the property of Cook from the time the plaintiff disaffirmed the contract, and that the settlement made by the defendant when he gave the new note discharged him from liability on the old note. The case does not disclose what was done with the watch after it was tendered back, and no point was made of that by either court or counsel. Price v. Furman is also much in point. There the minor tendered back the horse and demanded the property he had given in exchange for it, and on defendant's refusal to receive the horse or to redeliver the property the minor turned the horse loose into the highway and *To appear in 57 Vermont Reports.

left it; but the court laid no stress on that fact, but said that when the contract was rescinded it could not be enforced, and that on general principles the minor could recover, as there had been an offer to return the horse, which was in his possession and under his control. This is very analogous to the tender of specific articles in payment of a note or other contract, where a tender of the articles according to the contract vests the property in the promisee and discharges the debt; and the promisor is not bound to keep the property, nor to plead uncore prist. Barney v. Bliss, 1 D. Chip. 399. Hoyt v. Wilkinson. Opinion by Rowell, J. ASSAULT AND BATTERY-EVIDENCE-APPEARANCE OF PLAINTIFF AFTER.--This was an action of trespass for assault and battery upon the female plaintiff, and the first exception taken was to allowing the plaintiff to inquire of an unprofessional witness how she appeared after the affray with the defendant. The question was not one that required the aid of professional skill to qualify the witness to answer. Evidence of the appearance of a party claiming to have been injured is admissible as explanatory of the nature and extent of the injury; and all that is required to qualify a witness to testify concerning the same is that he should have so observed the party as to be able to determine what his appearance was. The weight to be given to the testimony of such a witness must depend largely upon his intelligence and the extent and character of the observations made by him. But such evidence, we understand, has always been held to be admissible. In Earl v. Tupper, 45 Vt. 275, which was an action of trespass for an assault and battery upon the wife, the plaintiff was allowed to show by an unprofessional witness that she saw Mrs. Earl a few days after the affray and examined her person; and she described the injuries that she observed, and testified that Mrs. Earl complained of her right side troubling her. In City of Shawneetown v. Mason, 82 Ill. 337, where the physical condition of a party was in dispute, the opinion of an ordinary witness as to his appearance was admitted. In Wilkinson v. Moseley, 30 Ala. 562, the opinion of such a witness, that he appeared sick, was admitted; and in Railroad Co. v. McLendon, 63 Ala. 266, testimony that the party was suffering and looked bad was admitted. There was no error in permitting the question to be put and answered. The second exception was to the refusal of the court to allow the defendant to show that the female plaintiff was a domineering, turbulent and quarrelsome woman, and that when she had formed a purpose or determiuation it was useless to oppose her or attempt to reason with her; and that this was known to the defendant prior to the affray. The testimony of the defendant previously given tended to show that she commenced the affray, and that he used no violence toward her except what was necessary for his defense. There can be no doubt that evidence of that character is admissible. Harrison v. Harrison, 43 Vt. 417; State v. Meader, 47 id. 78; State v. Lull, 48 id. 581. Knight v. Smythe. Opinion by Royce, C. J.

EVIDENCE-EXPERT-VALUE OF ENGINE.-An attorney, not an expert in the use, value or manufacture of locomotives, but who had made some investigation as to the value of the engine in controversy, was allowed to testify as to its value; and the court thought it could not say as matter of law that it was error. When the value of property is in controversy, the opinion of persons acquainted with its value is admissible; but there is no rule of law defining how much a person must know about property before he can be admitted to give an opinion of its value; though he must have some acquaintance with it sufficient to enable him to form some estimate of its value, and then it is for the triers to determine the weight to be given to such es

It

timate. Bedell v. Railroad Co., 44 N. Y. 367. But whether a witness possesses the requisite qualifications to make him competent to testify his opinion, is a preliminary question for the tribunal before which he is called; and its decision is conclusive unless it appears from the evidence to have been erroneous, or was founded on an error in law. Perkins v. Stickney, 132 Mass. 217; Wright v. Williams' Estate, 47 Vt. 222. does not appear what the character and extent of Lamson's investigations and inquiries were, nor what the nature of the information he obtained; and unless we can say as matter of law that no amount of informa tion thus obtained could make him competent, we cannot say there was error in admitting him; and we hardly think we can say this, as such opinions are admitted, not as the opinions of experts, strictly socalled, for they are not formed on special study, or training or professional experience, but rather from necessity, on the ground that they depend on knowl. edge that any one may acquire, but which the triers may not have. Swan v. County of Middlesex, 101 Mass. 173; Crane & Wife v. Northfield, 33 Vt. 124; Cavendish v. Troy, 41 id. 99. Railroad Co. v. Bixby. Opinion by Rowell, J.

ESTOPPEL-BY CONDUCT.-It is an essential element of an estoppel by conduct, that the party insisting upon it prove affirmatively that he was induced by the other party's conduct to act in reliance upon the fact that the truth was otherwise than now claimed, and that to allow it to be asserted would operate a substantial injury or fraud upon him; thus the plaintiff in his absence allowed his son to control his farm and trade the stock thereon; the son traded frequently and in his own name; the property in contention was received by the son in such trades or exchanges, and as between him and his father was the father's; no fraud was intended. The attaching creditor knew that the son was thus trading, and the referee found that the father must have known it; but failed to find that the creditor relied at all upon the son's ownership of the property in contention as an inducement to give him credit, or that the son had it in his possession when he traded with the creditor. In an action by the father against the officer who sold the property on an execution in favor of the son's creditor, held, that there was no estoppel, and none even if the son was held out to the world as the owner. Stevens. Opinion by Ross, J.

Earl v.

SURETY-SURRENDER OF SECURITY BY CREDITOR.The orators were sureties on anote, and the defendant the payee. The principal attempted to induce the payee to accept his own note secured by a mortgage on a lot of land owned by him in lieu of his note with said sureties; and the payee took the mortgage into his possession, and agreed to exchange if on examination he should find the title clear of incumbrance. On being informed by the town clerk that there was an undischarged mortgage on the land he refused to exchange, and returned the mortgage to the principal, although the surety requested him to hold it. It turned out afterward that the land was clear. A bill having been brought to restrain the payee from collecting the note, held, that the rule that the voluntary surrender by a creditor of security pledged by the principal for the debt discharges the surety, does not apply, and that the bill should be dismissed. v. Dutton. Opinion by Rowell, J.

Adams

MASSACHUSETTS SUPREME JUDICIAL COURT ABSTRACT.

TRUSTEE-COMPENSATION OF.-William Turnbull is one of five partners, making up the firm of William

Turnbull & Co., and has forty-seven per cent of the net profits. He is also one of three trustees under the will of Theodore Pomeroy. The question submitted to us by agreement of all parties is whether a considerable sum paid to that firm for commissions and guaranty on sales of goods manufactured by these trustees was properly so paid, or whether the whole or some part of it ought to be accounted for as assets of the trust. The trust is a peculiar one. The testator, after expressing his hope that one or more of his sons will carry on the business, a manufacturing business formerly carried on by the father and subsequently carried on by himself, and reciting that his son, Theodore L., is a minor, gives all the manufacturing property to William Turnbull, Silas Harris Pomeroy, the testator's eldest son, and Charles Atwater, his clerk, in trust, "to continue and carry on without interruption till my son Theodore L. shall arrive at the age of twenty-one years, the manufacturing business now carried on by me under said name of L. Pomeroy's Sons, in the same general manner said business is now carried on, subject to such changes in detail as in the judgment of said trustees the best interest of said trust may require, taking up and continuing said manufacturing business as the same shall be found at my decease." At the time of the testator's decease it had long been his habit to consign about half the goods of his manufacture to William Turnbull & Co., allowing them commissions and guaranty in the same manner as done by the trustees. It should be added that the testator was a member of the firm, and that by his will his estate remained interested in it some time after his death. Upon these facts and the language of the will, we think that a charge for commissions and guaranty may be allowed to Turnbull & Co., and that William Turnbull may be allowed his share of such charge without controverting any general proposition touching allowances to trustees. Nevertheless it is to be remembered, the English rule, refusing compensation for professional or business services which it was not the duty of the trustee to render, and for which he might have employed and paid another, is only a special application of the general rule, which refuses trustees compensation for services as such of any kind. New v. Jones, 9 Bythewood & Jarm. Prec. (3d ed.) 731; Robinson v. Pett, 3 P. Wms. 249. A rule which does not prevail here. When it is once admitted that a trustee may be paid for ordinary services, it is hard not to admit also that there may be circumstances under which he may be allowed an additional sum for extraordinary services, which it was not his duty to render, the allowance not standing on contract any more than in the common case, but being subject to the discretion and control of the court. Urann v. Coates, 117 Mass. 41, 43; Blake v. Pegram, 109 id. 541, 553; Bainbrigge v. Blair, 8 Beav. 588, 595. Whatever the general principle, there is no doubt that a testator has a right to provide for a more liberal compensation to trustees than the law would give them apart from the will. Willis v. Kibble, 1 Beav. 559; Imperial Mercantile Credit Assn. v. Coleman, L. R., 6 Ch. 558, 568. In this case the very purpose of the trust is to impose upon the trustees duties which are unknown to the usual trusts for investment and distribution. Not only must we suppose that the testator meant to authorize his trustees to act in the way which was most expedient, from a business point of view, but we think it clear that he contemplated the continuance of his long-established employment of William Turnbull & Co. as his selling agents. If the testator authorized the consignment to Turnbull & Co., of course he did not limit his authority to a gratuitous employment. He must be taken to have expected them to be paid and paid at the usual rates. There is nothing in the will so explicit as to withdraw the rate of compensa

tion from the supervision of the court. The contract between the trustees and the firm is not conclusive, so far as William Turnbull is concerned, and it seems to follow that the interest of his partners also is subject to our jurisdiction. Collins v. Carey, 2 Beav. 128; Lyon v. Baker, 5 De G. & Sm. 622. The allowance to the trustees, set forth in their account, obviously did not purport to be compensation for any thing, except their | duties as such in superintending the manufacture. It is true that the commissions in one view might logically have been brought into that allowance, but they were not, but appear as a deduction from the amount received for cloth sold. Turnbull v. Pomeroy. Opiuion by Holmes, J.

[Decided Sept. 18, 1885.]

MASTER AND SERVANT-CONTRIBUTORY NEGLIGENCE -EVIDENCE-WEIGHT OF, FOR JURY.-It is the duty of a company to provide for its servants a reasonably safe place in which to do their work; but when a building or place where the servant is employed is obviously unsafe, and the workman nevertheless engages to work in it, he takes the risks which he must know are incident thereto. In an action brought by a servant against a company employing him, to recover for injuries alleged to have been caused by its negligence in leaving unguarded an elevator well, into which he fell and was injured, it appeared that the plaintiff was directed by the foreman to go into the cellar on an errand; that the place was dark, and he fell into the elevator well and was injured. The plaintiff testified that he had been in the employment of the defendant for several years, and knew of the existence of the elevator well; that the foreman told him "to hurry," and being nearer the elevator well than he thought, he walked into it; that he did not know whether there was or was not any fence to the well. Held, that the evidence showed contributory negligence on the part of the servant, and that he could not recover. Lawless v. Conn. River R., 136 Mass. 1, distinguished. Where there was evidence upon which the jury could legally have found their verdict, the question of its weight or value cannot be considered by this court. Taylor v. Carew Manuf. Co. Opinion by Devens, J. [Decided Oct, 23, 1885.]

MARYLAND COURT OF APPEALS ABSTRACT.*

PAYMENT-RULE AS TO APPLICATION OF.-The rule in regard to the application of payments is well defined. At the time when payment is made, there may be an application by agreement between debtor and creditor. If there be no such agreement the debtor may make the application; and in the absence of any action on his part, the creditor may apply the money to the extinguishment of any claim which he has against the debtor. If there has been no application by parties, the law will apply the payment in conformity with established and recognized rules. But the law never makes an application of payment when the parties have already done so. The law will not undertake to make a new contract for the parties. And this rule strictly governs, even in the case of an application of money to the payment of an item in an account current which is not recoverable in an action at law. Thus in Tomlinson Carriage Co. v. Kinsella, 31 Conn. 272, Hinman, C. J., says: "The party receiving money as the consideration of an illegal sale may, under the statute, be liable to refund it. But to apply it by law as payment to other lawful debts is in effect to make a new contract for the parties against their wishes and intentions, and different from that *Appearing in 63 Maryland Reports.

which the law raises from the circumstances that the money may be recovered back under the statute." The language of the Supreme Court of Maine is even stronger. In the case of Treadwell v. Moore, 34 Me. 112, that court said: "No case can be found where the law by its own vigor has withdrawn a payment deliberately applied to the discharge of a claim, however illegal, and appropriated it in payment of some legal claim existing against the individual making the payment. No such principle as applicable to the appropriation of payments is recognized." The same doctrine was held in New Jersey when payments had been applied by a debtor to an illegal usurious contract. Feldman v. Gamble, 26 N. J. Eq. 494. The principle seems to have been established and settled by a multitude of adjudications that the debtor cannot retract his application of payment to an illegal contract, nor can courts either of law or equity intervene in his behalf, "whether the application be a present one made by the debtor himself, or by the creditor under a previous agreement with the debtor that it should be thus applied." And in conformity with this principal it has been determined by a number of the Appellate Courts, that when part of a creditor's claim was for liquors sold by him in violation of a statute, which part was not therefore collectible, and the debtor had made payments specifically on those items, the payments must be so applied, and not to other items which were for groceries and other goods, the sale of which was fully sanctioned by law. Caldwell v. Wentworth, 14 N. H. 431; Richardson v. Woodbury, 12 Cush. 279; Hubbell v. Flint, 15 Gray, 550. Dickey v. Permanent Land Co. of Baltimore. Opinion by Yellott, J.

[Decided Feb. 12, 1885.

CARRIER-DELIVERY TO TITLE TO GOODS AT WHOSE RISK INTENT OF FACTOR.-It is the wellsettled law, that the delivery of goods to a common carrier for one who has purchased and who has ordered them, is a delivery to the purchaser, though it does not amount to an acceptance of them. 1 Benj. Sales, 182, 195, But is is equally well settled, that where goods have been shipped to one who has not ordered them, title does not pass to the consignee by delivery to the carrier, and the right to change the consignment and destination during the transportation remains in the shipper; and this is so far the manifest reason that there is a want of the essential element of mutual assent to constitute a contract of sale. So that in all cases where goods are shipped upon the account of, and at the risk of the shipper, this right remains in him. The Francis, Boyer, Master, 8 Cranch, 418; Mitchel V. Ede, 11 A dol. & El. 888; Scothorn v. South Staffordshire R. Co., 8 Exch. 341; 3 Condensed Rep. U. S. 245, and notes; Elliot V. Bradley, 23 Vt. 217; Hodges V. Farnsworth, 49 Iowa, 577; Hutchinson Car., §§ 134, 337; Blanchard v. Page, 8 Gray, 285; Walter v. Ross, 2 Wash. Cir. Ct. Rep. 286. In this last case the subject was fully considered, and Judge Washington says: "The factor has no interest or property in the goods beyond his commissions, and of course cannot controvert the right of his principal. If indeed he be a creditor of the shipper, he has a contingent interest in virtue of his right of lien which the possession would give; but for the perfection of his right he must acquire and retain an actual possession of this propertyconstructive possession will not do." The same principles are declared in Grosvenor v. Phillips, 2 Hill, 147, and in Bank of Rochester v. Jones, 4 N. Y. 500. In Bonner v. Marsh, 10 Sm. & Mar. 376: Chaffe v. Miss. R. Co., 59 Miss. 185; Woodruff v. Nashville & Chattanooga R. Co., 2 Head, 87, and several other Tennessee cases, the law is laid down more stringently, as against the

factor, than the weight of authority justifies. There can be no doubt upon the weight of authority, that if the factor have claims for advances against his principal, and it be expressly agreed, that goods shall be shipped to the factor to pay those advances, then in such cases the law makes the delivery to the carrier a delivery to the consignee, though a factor; and the appellee's counsel endeavor to bring the appellee within the operation of this rule as laid down in Bailey v. Hudson R. R., 49 N. Y. 70, and Straus v. Wessel, 30 Ohio St. Rep. 211. But those cases are not analogous to the present one. In Bailey's case it was decided that title had passed. The court said that the plaintiffs in that case "occupied the legal position of vendees after having paid the purchase-money and received delivery of the goods." It is true, the court says, in addition, that it is not necessary to hold in that case that the plaintiffs occupied the position of vendees strictly; but still the decision is wholly based on the ground that "the actual agreement and transaction proved by two members of the firm, and uncontradicted, prevailed." It was because of the agreement expressly proved that title was held to have passed to the consignee on delivery to the carrier, and in that way the shipper's right to change consignment and destination was lost. The court say in that case, the goods were not sold outright to the consignee at specified price, but they were by agreement sent to him for sale, and that the proceeds should be applied to the payment of the debt; creating thereby the quasi relation of trustee, to whom, for the purposes of the trust, the title passed. In Straus v. Wessel, 30 Ohio St. 211, the advances had been made on the particular lot of pork to be shipped, which by express contract, was shipped to pay the indebtedness; and it was held that under these circumstances, the delivery to the carrier was a delivery to the consignee, who the court say, in such case, is in the position of purchaser, having paid for the goods. Ruhl v. Corner. Opinion by Irving, J.

ASSIGNMENT FOR CREDITORS-PREFERENCE FEE FOR DRAUGHTSMAN.-The sole question in this case is whether the reservation of a reasonable fee for the draughtsman of the deed for its preparation, is such a preference in a deed for the benefit of creditors, as is forbidden by an insolvent act of 1884, ch. 295. The language of that act is very general and covers every species of debt, and we see no escape from holding that the reservation made in this deed is within the prohibition of that act. The debtor who was in failing circumstances employed the draughtsman. No one else could, for there was no trustee to do it until the deed was made. It was his debt or he could not change his estate in the hands of a trustee, with its payment as he did do by the deed. He ought to have paid the draughtsman and left no debt outstanding for the service rendered to be paid in full from the estate as a preference debt. The question turns entirely on the construction of the act of assembly, and in de. termining what kind of debt is contemplated by and embraced in it, we find no occasion to cite authority in support of our view, If this deed had never been executed, there can be no question that the draughtsman would have had a proper claim against his employer, notwithstanding the deed had never been executed. Its execution could not change the character of the claim unless there had been a special coutract to that effect. The fee for preparing this deed was beyond question a debt of the grantor, and though created in an attempt to provide for his creditor, we find no warrant for excepting it from the operation of the act. A majority of the court thinking the order of the insolvent court of Baltimore city appealed from was properly passed, the same will be affirmed.

WILL-EXECUTION OF POWER-TITLE FROM DONOR. -The intention to execute a power must appear by a reference in the instrument to it, or to the subject of it, or from the fact that the instrument would be inoperative without the aid of the power. Accordingly held, where the testatrix, after certain specific bequests, described all the other property disposed of as "the rest, residue and remainder of my estate, real, personal and mixed, wheresoever situated and to which I am in any manner whatsoever entitled," that it was not an execution of a power, it appearing that the testatrix had other property of her own to which the language used could have referred. The donee of a power may execute it without referring to it and without taking any notice of it, provided the intention to execute the power really appears. Smith v. Adkins, 41 L. J. Ch. 628; Doe v. Bird, 5 B. & Ad. 695; Sugden Pow. 373. But a person taking under the execution of a power does not derive his title from the donee, but from the donor, under the authority of the instrument creating the power. Bradish v. Gibbs, 3 Johns. Ch. 523. If therefore there is no express reference to the instrument creating the power it is apparent that there should be some special reference to the subject on which it is to operate, or some circumstance leading to the conclusion that its execution was intended. Thus in Doe v. Johnson, 7 Man. & Grang. 1047, where it appeared that a testator, holding property for life with a power to devise or convey, had in general terms devised and bequeathed all his real and personal estates, it was held that the will was not a good execution of the power, because it contained no reference to the power, or to the property on which it was to operate, or to any thing from which it could be inferred that the testator in framing the will had the power in his contemplation. And there being no evidence adduced by either party at the trial as to whether the testator had or had not any other real estate upon which his devise could operate, it was further held that the onus probandi vested upon him who claimed under the will as an effective execution of the power, and that it lay upon him to establish the negative proposition that the testator possessed no such property. It has long been the settled doctrine in England that where the power is not referred to the property subject to its operation must be mentioned, so as to indicate that the disposition was intended to affect it, or in other words, the donee must do such an act as to show that he has in view the thing of which he has the power to dispose. When this question has arisen in the construction of wills it seems to have been firmly settled that a mere general devise or bequest however unlimited in terms, will not comprehend the subject of the power unless it refer to the subject or to the power itself, or unless an intent to execute it becomes apparent from circumstances tending to such a conclusion. Lowson V. Lowson, 3 Bro. C. C. 272; Molton v. Hutchinson, 1 Atk. 558; Hales v. Margerum, 3 Ves. Jr. 299. In 3 Ves. Jr. 301, Lord Alvanley distinctly stated the true rule to be that "in the execution of a power there must be a direct reference to it or a clear reference to the subject or something upon the face of the will, or independent of it, some circumstances which show that the testator could not have made that disposition without having intended to comprehend the subject of the power." In recognition of this doctrine Chancellor Kent says, that "in the case of wills it has been repeatedly declared, and is now the settled rule, that in respect to the execution of a power there must be a reference to the subject of it, or to the power itself,

unless it be in a case in which the will would be inoperative without the aid of the power, and the intention to execute the power became clear and manifest." 4 Kent Com., marg. p. 334. This court has recognized and adopted the rule as settled in England, and as so clearly and concisely stated by the eminent jurist just mentioned. Mory v. Michael, 18 Md. 241; Md. Mut. Ben. Soc. of Red Men v. Clendinen, 44 id. 429; Foos v. Scarf, 55 id. 309. In the case in 55 Md. it is said that "the intention to execute the power must appear by a reference in the instrument to the power, or to the subject of it, or from the fact that the instrument would be inoperative without the aid of the power." In the will of Mary L. Patterson there is no reference to the power, nor to the subject on which it was to operate; and as it is averred in the bill of complaint, and nowhere denied, that she had other property, her will would not be inoperative without the aid of the power. Patterson v. Wilson. Opinion by Yellott, J.

[Decided June 25, 1885.]

MAINE SUPREME JUDICIAL COURT ABSTRACT.

WILL-DEVISE-CONDITION SUBSEQUENT.-A testator devised his farm to his wife for life, "the said real estate to go to M. at her death, if any remains, providing M. maintains and provides for her decently from the farm, or otherwise; and providing said M. fails to provide for her, then she is empowered to call on selectmen to provide for her in her own house." The will also provided that M. be allowed to use the place for the purpose of maintaining himself and the widow of the testator by farming the same. Held, that M. took upon a condition subsequent; and that M. having failed to perform the condition, the heirs of the deviɛor had the right to create a forfeiture by an entry therefor, although the will contained no clause to that purport. It is very plain that the testator did not intend that he should take an absolute fee by implication in the remainder with a charge upon him personally to support the life-tenant; nor a life estate in the remainder with a life charge upon the estate devised (McLellan v. Turner, 15 Me. 438, and cases there cited; 3 Greenl. Cruise, 283-4, and cases in note; Taft v. Morse, 4 Metc. 523; Gardner v. Gardner, 3 Mason, 179, 207) for only "what remains at her death" is devised to him. Was it a condition precedent or subsequent? As there are no technical words which distinguish them (4 Kent, 125), whether it be one or the other depends upon whether the testator intended that a compliance with the requisition annexed to the estate devised should be a condition of its acquisition, or merely of its retention. 2 Jarm. Wills (R. & T. ed.), 509. It cannot be deemed a condition precedent, because M. is authorized by the express terms of the will to provide for the life tenant "from the proceeds of the farm." And while " ceeds" may mean "produce" or "income," it also signifies "money or other articles of value obtained from the sale of the property;" Web. Dict.; and the testator must have intended to use it it the latter sense, inasmuch as the real estate was to go to M. at the widow's death, "if any remained," and he could not sell any of it for her support unless he had a lease, at least a title on condition subsequent. The devise to him, together with the next succeeding provision that in case he failed "to provide for" her, then she "is empowered to call on the selectmen," etc., cannot be considered a conditional limitation, as in Stearns v. Godfrey, 16 Me. 158, and Brattle Sq. Church v. Grant, 3 Gray, 143, because the limitation over is too indefinite,

pro

no third person being named. 4 Kent, 127. Considering the whole will together, we are of opinion that the devise to M. was upon condition subsequent. Stark v. Smiley, 25 Me. 201; Marwick v. Andrews, id. 525; Thomas v. Record, 47 id. 500. M. having failed to perform the condition, the heirs of the devisor had the right to create a forfeiture by an entry therefor, although there was no abuse clause in the will to that purport. Thomas v. Record, supra; 4 Kent, 123. But no such entry was made before this suit was commenced. And while equity will, under well-recognized circumstances, relieve a party from a forfeiture, a court of equity does not lend its aid to divest an estate for a breach of a condition subsequent, and thereby enforce a forfeiture. 4 Kent, 131; Story Eq., § 1319; Smith v. Jewett, 40 N. H. 534. Moreover the title passed to M. subject only to be defeated on breach of the condition; and until an entry for the breach it remained in him as if no condition ever existed. The complainants therefore at the commencement of this suit placed themselves in the attitude of praying for the removal of a cloud from a title which they did not hold, by the cancellation of a mortgage upon a farm of which they had no possession. West v. Schnebly, 54 Ill. 523; Story Eq., § 700, note 4; Pom. Eq., § 1399, note 4. Birmingham v. Lesan. Opinion by Vir

gin, J.

[Decided Oct. 15, 1885.]

SALE- — DEFECTIVE MERCHANDISE-RESCISSION.-A shoe manufacturer purchased a lot of leather in which there was a latent defect not disclosed to him till a part of it was manufactured into shoes and put to the test of actual wear. Held, that he could then return so much of the leather as was unmanufactured, and have credit for the same, specially as it had been customary between the parties for him to receive credit for leather returned at various times that was not suitable for his use. From the terms of the sale, the law implies a warranty that the leather sold should be reasonably fit for the purposes for which it was bought; that is, that it should be sound-suited for shoes.. French v. Vining, 102 Mass. 132; Jones v. Just, L. R., 3 Q. B. 197; Hight v. Bacon, 126 Mass. 11; Pease v. Sabin, 38 Vt. 432; Jones v. Bright, 5 Bing. 533. If it be said that the doctrine of caveat emptor applies, inasmuch as the defendants inspected the leather before purchase, and have not shown that the plaintiffs manufactured it, it is sufficient to note that it was sold for a specific use, and that the defect was latent and known to the plaintiffs and concealed by them from the defendants at the time the sale was made. Silence in such case was fraud. When the latent defect became known to the defendants they could elect whether to retain the goods and seek their remedy for breach of warranty or deceit, or to repudiate the sale and restore the articles purchased. Marston v. Knight, 29 Me. 341. They chose the latter course, and returned so much of the leather as had not been actually manufactured, and demanded credit for the purchase-money. No objection is made that the leather was not seasonably returned, nor that all of it was not returned, so that these questions need not be considered, but are waived. Downing v. Dearborn. Opinion by Has