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or regulation requiring pupils to bring up wood for not changed by our statutes relating to the rights use in the school-room is unreasonable, and not bind- and liabilities of married women. Flynn v. Mesing upon any pupil who does not wisin to comply with senger, 28 Minn. 208; S. C., 48 Am. Rep. 279.” See it; that it does not relate to a subject which con Tiemyer v. Turnquist, 85 N. Y. 516; S. C., 39 Am. cerns the education of pupils or discipline in the Rep. 674; Kronskop v. Shontz, 51 Wis. 204; S. C., schools; therefore that the board had no right to 37 Am. Rep. 817. adopt and enforce it to the extent of excluding a pupil who did not conform to it. IIe says our RULES AS TO TIE PRIVILEGES OF WITpublic schools are organized and maintained for the

NESSES. education and improvement of children in learning;

VIII. that no rule is proper which does not conduce to these ends -- that does not in some way promote

RULE. But the privilege cannot be allouncd, where the the good order or government of the schools; secure the decorum and quiet in the school-room which are

crime has been parlonell (a) or the witness has been

convicted 01 cucquitted of his shure in it (b) or the prosessential for advantageous instruction and discipline.ccution is barred by time (1) (c) or his testimony cannot Consequently any rule or regulation which has for be used against him in another curse (2) (d) or the witits object any thing outside of the instruction of the

ness is the defendant in a criminal cuse, examined as a pupil — the order requisite for instruction – is be

witness on his own behalf (c). yond the province of the board of education to

ILLUSTRATIONS. adopt. The requirement that school children should bring up wood, when not by way of punishment or

(A.) discipline for misconduct, has nothing to do with 1. A. being examined as a witness refuses to the education of the child. It is nothing but answer on the ground that it may involve him in a manual labor, pure and simple, and has no relation crime. It is shown that a pardon has been granted to mental development. If a child can be com A. by the sovereign for the crime in question. A. pelled to bring up wood, he can be made to saw will be compelled to answer (3). and split it before it is brought up; he can be com

(B.) pelled to bring it to the school-yard and throw it

1. B. being examined as a witness makes a similar in the baseinent; can be maule to clear the sidewalk oljection. B. has been tried and acquitted of the of snow, wash the windows, or do any other menial crime. B. must answer (1). work about the school-house and ground. It seems to us difficult to escape the force of this argument.

(C.) * It cannot fairly be claimed that the boards

1. In an action on a note, a witness declined to are uncontrolled in the exercise of their discretion

answer a question on the ground that it may expose and judgment upon the subject. The rules and regul

him to a charge of usury. It appears that the statlations made must be reasonable and proper, or in

ute of limitation has barred a criminal prosecution

in this case. the language of the statute, “needful,' for the gov

The witness will be compelled to

answer (5) ernment, good order, and efficiency of the schools such as will best advance the pupils in their studies, barred a prosecution for the offense and all suits to

“Where the statute,” it was said in case 1, "has tend to their education and mental improvement, enforce the penalty, the court must see that the witand promote their interest and welfare. But the rules and regulations must relate to these objects.

ness cannot be prejudiced, and in such a case he is The boards are not at liberty to adopt rules relating not left to judge whether he can safely testify or to other subjects according to their humor or fancy, not, but the court is bound to pronounce against his and make a disobedience of such a rule by a pupil

claim to exemption.”

(1).) cause for his suspension or expulsion. We therefore think the rule or regulation requiring the pupil to

1. A. and B. are indicted for gaming. A statute bring up wood for use in the school-room was one

provides that where two persons are concerned in which the board had no right to make and enforce." the commission of a crime, either may be sworn as a

witness against the other, but the testimony of such

(1) People v. Mather, 4 Wend. 29 (1830); Weldon v. Burch, In Wagner v. Nagel, Minnesota Supreme Court,

12 Ill. 371 (1551). May 8, 1885, 23 N. W. Rep. 309, it was held that (2) Floyd v. State, î Tex. 215 (1851); re Tappan, 9 How. Pr. “Evidence that a wise living with her husband

3:11 (1851); Wilkins v. Malone, 11 Ind. 153 (1860); State v. Hender

son, 17 Ind. 27 (1974); R . Charlesworth, ?F. & F. 336 (1860) employed a servant for ordinary domestic service in

State r. Wentworth, 65 Me. 234 (1875); Com. v. Lannan, 13 their family is competent evidence against the hus- Allen, 563 (1960) ; Brandon v. Peoplo, 42 N. Y. 21:5 (1870) ; Conband in an action for such services. It is not nec

nors v. People, 30 N. Y.240 (1872); Gill v.People,5 N.Y.Sup.(T.

& C) 309 (1875) ; Burdick v. People, 58 Barb. 51 (1870); Fralich essary to show any express authority from the

v. People, 05 Barh. 48 (1873) ; McGarry v. People, 2 Lans. 227 husband to make the contract. This is within the (1870) ; State v. Ober, 52 N. H. 459 (1973) personal authority of the wife, and in employing

(3) R. v. Boges, 1 B. & S. 311 (1861).

(4) II, such service she is presumed to be acting for the (5) Close v. Olney. 1 Denio, 319 (1845); see Bank of Salina v. husband. The common-law rule in regard to the Ilenry. 2 Denio, 155 (1846), that it must affirmatively appear that

no proceedings to euforce the penalty have been conimenced presumed authority of the wife in such matters is within the period of limitation.

witness shall not be used against him in any pros- right to refuse to answer other questions which may ecution for the same offense. On the trial of A., B. criminate him. A. cannot do this (7). is asked as to the transaction in question. B. can 2. B. being held for larceny, testifies in his own not refuse to answer (6).

behalf. On cross-examination B. may be asked In case 1 it was said: “The privilege in question whether he has been in the house of correction for in its greatest scope as allowed by the common any crime (8). law and no one, be he witness or accused, can In case 1 it was said: “The statute which allows pretend to claim it beyond its scope at the common a defendant in a criminal case at his own request law - never did contemplate that the witness might and not otherwise to testify in his own behalf exnot be found guilty of the very crime about which pressly provides that he shall be deemed a compehe

may be called to testify, but only that the wit tent witness, that is competent not for a special ness should not be compelled to produce the evi purpose or to give evidence only which shall operate dence to prove himself guilty of that crime. His in his favor, but compelled to testify to any facts privilege therefore was not an exemption from the relevant and material to the issue. Like all other consequences of a crime that he might have com witnesses he is to tell the truth, and the whole mitted, but only an exemption from the necessity truth concerning any matter proper to be inquired of himself producing the evidence to establish his about. If he offers himself as a witness, he waives own crime. And it is founded upon the general his constitutional privilege of refusing to furnish sense of enlightened men, that compulsory self-ac-evidence against himself and may be interrogated cusation of crime is not only at war with the true as a general witness in the cause. In case 2 it was charities of religion, but has been proven to be said: “ By availing himself of the privilege he asimpolitic by the truths of history and the experience sumed the character of a witness, and subjected of common life. It is not possible, then, that an himself to the liabilities incident to that position. other person can have any color of claim to exemp The statute does not exempt him from cross-examtion from the consequences of his crime, founded ination, and impeachment as a witness, and there upon this personal privilege of the witness, which is no reason why he should be exempt from it." does not include any such exemption even for the “It is of course competent” said Denio, J., in Peowitness himself. And if, from time to time, crime ple v. Iluckley, (9) “ for the Legislature to change any has been sheltered under this color either by the doctrine of the common law, but I think they could ignorance of the witness, bis morbid fears, or his not compel a witness to testify on the trial of outright perjury, such has not been the legitimate another person to facts which would prove himself result of the true privilege, but of the manner in guilty of a crime without indemnifying him against which it has heretofore been allowed by law to the consequences, because I think, as has been menbe made available. And surely, the remedy for tioned, that by

tioned, that by a legal construction, the Constituany such evils is as legitimately within legislative tion would be found to forbid it. But it is authority as any which may flow in upon the body proposed by the appellant's counsel to push politic from the abuse of any other right reserved the construction of the Constitution a step to or designed to be secured for the citizen, So further. A person is not only not compellable to long as it might be lawful to produce in evidence be a witness against himself in his own cause, or to against an accused party, whatever he might before testify to the truth in a prosecution against another have voluntarily said as a witness on a prosecution person when the evidence given, if used as his adagainst another, there were no means by which the mission, might tend to convict himself if he should privilege could be made available short of a claim be afterward prosecuted, but he is still privileged by the witness to be silent, and as that was the rule from answering, though he is secured against his of the common law, this was the common-law answers being repeated to his prejudice on another mode of making the privilege available, and that trial against himself. It is no doubt true that a silence was but a mode of making the privilege precise account of the circumstances of a given available, and was not of the essence of the privilege crime would afford a prosecutor some facilities for itself, is conclusively proven by all that current of fastening the guilt upon the actual offender, though enlightened authority to which we yield our fullest he were not permitted to prove such account upon assent which holds that the privilege has ceased when the trial. The possession of the circumstances the crime has been pardoned; when the witness has might point out to him sources of evidence which he been tried and acquitted, or is adjudged guilty, or would otherwise be ignorant of, and in this way the when the prosecution to which he was exposed, has witness might be prejudiced. But neither the law been barred by lapse of time."

nor the Constitution is so sedulous to secure the (E.)

guilty as the argument supposes. If a man cannot 1. A. is indicted for a crime. A statute permits without disclosing circumstances which will make

give evidence upon the trial of another person a defendant in a criminal case to testify in his own behalf. A. offers himself as a witness to testify as

his own guilt apparent or at least capable of proof,

though his account of the transactions should never to a single fact, and on cross-cxamination claims a

(7) Com. v. Mullen, 97 Mass. 545 (1867), (6) Stato v. Quarles, 13 Ark. 308 (1833) ; United States v. Threo (8) Com. v. Bonner, 97 Mass. 587 (1867). Tons of Coal, 6 Biss. 379 (1875).

(O) 24 N. Y. 83 (1801).

He may

be used as evidence, it is the misfortune of his con virtue of a subpæna. He speaks at the peril of his dition and not any want of humanity in the law. examination being turned against himself. If a witness objects to a question on the ground that demur, to be sure, to all questions which would suban answer would criminate himself, he must allege, ject him to penalties. Here the defendant might in substance, that his answer, if repeated as his ad- have demurred, and his objection could only have mission on his own trial, to prove him guilty of a been removed by the assignees to whom the action criminal offeuse. If the case is so situated that a is given, delivering him a release. Thus he might repetition of it on a prosecution against him is im- have protected himself; but having unguardedly possible, as where it is forbidden by a positive answered the questions put to him, his answers may statute, I have seen no authority which holds or be employed against him for all purposes to which intimates that the witness is privileged. It is not they are legally applicable.” within any reasonable construction of the language

(B.) of the constitutional provision. The term 'criminal

1. In an action on a bill, A. a witness was asked case,' used in the clause, must be allowed some meaning, and none can be conceived other than a

if he had signed it. He declined to answer, but prosecution for a criminal offense. But it must be being compelled by the judge replied that he had.

A. was subsequently indicted for forging the bill. a prosecution against him; for what is forbidden is

The answer of A. in the civil suit is not admissible that he should be compelled to be a witness against against him in the criminal casc (13). himself. Now if he be prosecuted criminally

In case 1 it was held that when a witness is comtouching the matter about which he has testified upon the trial of another person, the statute makes pelled by the judge to answer a criminating ques

tion when he should not, what he says must be conit impossible that his testimony given on that occasion should be used by the prosecution on the

sidered as having been obtained from him by comtrial. It cannot, therefore, be said that in such pulsion and cannot afterward be given in evidence criminal case he has been made a witness against

against him. himself by force of any compulsiou use toward him

The refusal of a party to a suit to answer a mate

rial question, on the ground that it might criminate to procure in the other case testimony which can not possibly be used in the criminal case against fusal to answer, like any other refusal to produce

him raises a presumption against him.

« Thus rehimself." In Rodily v. Finnegan, (10) it is said: “The wit

evidence in his own power, wus competent evidence ness ordinarily has the privilege of dcclining to ans

against him and his partner. A party offering him

self as a witness in his own behalf stands differently wer a question which might subject him to a criminal

in this respect from a third person brought into prosecution; but this he can waive. It is the privi

court to testify in a case in which he has no inlege of the witness, not the party. Where he is

terest (14) both party and witness for himself, he must be held on his cross-examination as waiving the privilege, refusal of a witness not a party, to answer.

No presumption arises against cither party by the as to any matter about which he has given testimony in chies. Having testified to a part of the transac

allowance of the privilege would be a mockery of tion in which he was concerned, he is bound to state

justice if either party is to be affected injuriously by the whole."

it. The exercise of this right by the witness is not

under the control of the parties and no one can be RULE. The answer of a witness to a criminating affected by evidence which his adversary fails to question is admissible against him in another case if produce, and which therefore cannot be met or given roluntarily (a) but not if involuntarily (b). explained by cross-examination, rebutting evidence (A.) or otherwise ” (15).

JOHN D. LAWSON. 1. A. is sued for a penalty for concealing his

St. Louis, Mo. property. The examination of A. in another case where A. without objecting had testified to the concealment by him, is introduced. IIis answers there WILL PUBLIC CHIRITI CONDITIOV SUBSEmade are admissible (11).

QUEVT' PERPETUITIES. 2. In a prosecution against W. for forgery, his answers given in an examination in bankruptcy are


OCTOBER TERM, 1881. offered. They are admissible against him; it appearing that he was cautioned by the court and

TAPPAN'S APPEAL. allowed to elect what questions he would answer (12).

A gift by will of a permanent fund, “which shall be used for In case 1 it was said: “Every one must be sup the charitable assistance and benefit of indigent unmarposed to be cognizant of a public law. A person ried Protestant females over the age of eighteen years, examined before the commissioners of bankruptcy residents of the city of Bridgeport,” creates a public charis like any other witness called to give evidence by

ity, and nothing more.

(13) R. v. Garbett. 2 C. & K., 474 (1847); Stockfleth v. Do (10) 43 Md. 500 (1875).

Tastet, 4 Camp. 10 (1814). (11) Smith v. Beadnell, 1 Camp. 30 (1807).

(14) Andrews v. Frye, 104 Mass. 231 (1870) (12) R. v. Wheater, 2 Moody, 45 (1838).

(15) Phelin v. Kenderdine, 20 Penn. $t. 362 (1853).

66 The

Alphensérom Probate Court. The opinion states

P. by her will devised certain real and personal estate to an ties in this State an act of incorporation for a charitable

ecclesiastical society upon condition, that “ within three institution, to be located in said Bridgeport, under the years after iny decease the said society shall erect, or name of 'The Burroughs Home,' the object of which cause to be erected, on the grounds of said society, near shall be to help and assist indigent, upmarried Protesits church edifice, a chapel which shall cost not less than tant females under eighteen years of age residing in $30,000, and which shall be named and known as “The said city of Bridgeport; aud upon the legal organizaBurrouglis Memorial Chapel ;' and on the failure or tion of such incorporation I direct and empower said neglect so to do by said society, I give and devise the said

trustees to transfer and convey to the said ‘Burroughs real and personal estate to my residuary legatees and de Home,' said fund of real and personal estate to be visees, to be theirs forever.”

held by them and their successors forever for the charHeld, that the condition was subsequent, that the property itable uses and purposes indicated above, and subject

vested in the society on the death of the testatrix, but the to the directions hereinafter given. estate was liable to become extinguished unless the condi “3. If neither of the above provisions can legally be tion was complied with.

carried into effect, I then direct said trustees and their Held also, that the tying up of the property for three years

successors forever to hold said fund of real and perwas not obnoxious to the statute against perpetuities.

sonal estate, for the charitable uses and purposes indi

cated above, and subject to the directions hereinafter the case.

given; and if so held the same shall be known as the Oswald Prentiss Backus and Simon E. Baldwin, for

‘Burroughs fund,' and the said rector, pastor and

mayor shall, ex officio, be members of the board of appellant.

trustees, and if any vacancy occur in the other memMorris W. Seymour and Curtis Thompson, for appel bers of the board, such vacancies shall be filled by the lees.

appointment of the Court of Probate; and I direct PARK, C. J. The questions controverted in this case

that no bond be required of such trustees by the Court

of Probate. grow out of the twelfth and residuary clauses of the

“4. 1 direct that the old homestead of my father, will of ('atharine A. Pettingill, late of the city of Bridgeport, deceased. The residuary clause is as fol

now owned by me, on John street, shall be used for lows: “After paying and satisfying all of the abovo

the home of such females, if it be practicable; but if it provisions of this, my last will and testament, out of

should not be best, then some other portion of my my estate, all of which is charged therewith, and my

land or real estate belonging to such fund may be used executors are hereby fully empowered to sell and con

to establish a home thereon; but the value thereof vey any real estate or personal estate not specifically

shall not exceed, for both land and buildings, onedevised for the purpose of paying any of the aboro

quarter of the value of such fund, and the remaining legacies, if necessary so to do, which shall be deter

three-quarters or more of said fund shall be kept semined by the judge of probate. Then all the rest and

curely in rested; but if deemed best to accomplish the residue of my estate, real and personal, of every pa

humane purposes of this gift not to have land and ture and description, and all that shall belong to my

buildings of one-quarter of the value of the fund as estate and be undisposed of, by reason of the lapsing

aforesaid invested in a home for such females, then all or failure to take effect of any of said legacies or de

of said fund shall be securely invested; and I further vises, for any causo whatsoever (for I intend hereby

direct that full power of sale, conveyance, exchange

and reinvestment be had and exercised as circumthat no part of my estate shall become intestato estate), I give, bequeath and deviso to the persons re

stances may require and the execution of all necesspectively who shall for the time being be the rector of

sary instruments. the society of St. John's parish aforesaid: the pastor

“5. I direct that the income shall be applied annuof the First ('ongregational church in said Bridgeport,

ally, or at other times during the year, in such manand the mayor of the said city of Bridgeport, and their

ner as may be thought best to accomplish the greatest successors in oflice; and to Nathaniel Wheeler, Ed

good to the class I have hereby undertaken to help ward Sterling, Samuel W. Baldwin and John llurd,

and benefit. all of said Bridgeport, to have and to hold the same in

“6. I direct that the term “unmarried' shall not trust for the following purposes, and subject to

exclude widows, divoroed women, por any woman the following directions, to wit:

who in fact has no husband, from the benefit of these 1. The object sought by this gift is the establish

provisions, providing she otherwise comes within said

class. ment of a permanent fund of real and personal estate, which shall be used for îho charitable assistance and

“7. It may be better to organize and establish a corbenefit of indigent, unmarried Protestant females over

poration under the general laws of this State to carry the age of eighteen years, resident of said city of

out the charitable uses and purposes of this trust; and Bridgeport; and it is my wish that this fund shall bo

if so, in the judgment of said board of trustees, I diheld and managed by the managers or directors of the

rect them so to do, but I am very solicitous that this Bridgeport Prostestant Widows' Society of said

gift shall not fail to be carried into effect; and I ask Bridgeport, and their successors in office forever as

said trustees to act wisely in this matter." they, from their knowledge and experience in a simi The testatrix declares that the object sought to be lar department of humano work, would probably be accomplished by this gift is the establishment of a better acquainted with the class of women this fund is permanent fund, “which shall be used for the charitaintended to help and benefit; and is tho samo can be ble assistance and benefit of indigent unmarried Protmade practicable and legal, then I authorize and em. estant females over the age of eighteen years, residents power my said trustees, on such terms as they may

of the city of Bridgeport." fix upon, to transfer and convey the property em It is said by the appellant that the word “benefit." braced in said fund to said managers and their succes as used in the phrase “charitable assistance and benesors in office forever, to be held by them forever, for the fit” in this devise and bequest, does not confine the charitable uses and purposes indicated above, and sub

trustees to charitable benefits in the administration ject to the directions hereinafter given.

of the trust, but leaves them at liberty to assist the “2. If for any reason the abovo wish and power can objects of the testatrix's bounty in any manner benemot legally be carried into effect, then I direct and em ficial to them, although the benefit may not be charpower said trustees to obtain from the proper authori itable, as that word has been legally construed to mean

in our statute of uses. But we think the word char It was said in that case that the description of the itable qualifies the word benefit in the phrase as well as beneficiaries was uot sufficiently definite to enable a the work assistance; and the phrase means, as though Court of Chancery to carry the donation into execuit read, charitable assistance and charitable beuefit. tion. The words assistance and benefit are used in the phrase The same claim is made here; but it is manifest that as synonymous. They are applied to an indigent class the description of the class from which the beneficiaof unmarried females, and it is impossible to see how ries are to be selected is as definite in this case as it is they could be assisted by a bequest without being in that, and in other cases there referred to. The word benefited, or benefited without being assisted. It is “Protestant," which appears in the description in this conceded that the word “charitablo" qualifies one of case, is the only word entitled to covsideration; but it the words; it must therefore qualify the other, which is obvious in what sense this word was used by the teshas the same meaning. We think therefore that this tatrix. The word includes all those who believe in tho devise and bequest creates a public charity, and noth Christiau religion, and do not acknowledge the suing moro.

premacy of the pope of Rome. We think the public The testatris suggests four different modes for the charity established in the residuary clause of this will administration and dispensation of this public charity, is valid. and declares her mind and will to be in favor of the Is the devise and bequest contained in the twelfth first mode named, “ if the same can be made practica- article of the will valid ? The article is as follows: ble and legal” for the purpose; but “if for any rea “ Article 12. I give, bequeath and devise to the soson "the first-named mode cannot be legally carried ciety of St. Johu's parish, an ecclesiastical society and into effect, theu she declares her mind and will to be body corporate, organized and existing under the laws in favor of the second mode suggested; and iu like of the State of Connecticut and located near my resimanner the third and fourth modes in their order. dence in said Bridgeport, my said residence, compris

Hence the appellant is in error when she claims that ing the land with the buildings thereon, bounded south the trustees have the discretionary power to select on Fairfield avenue, east on land of said society of St. either of the modes prescribed for the administration John's parish, north on land of said society, and west of the trust. They have no discrezion in the matter. on land of Peter Norman, now or formerly; and I give They must take the first, if that mode shall be found also to said society ten thousand dollars ($10,000) in to be practicable and legal; but if not, then they must cash, to their own use aud benefit forerer; but upon resort to the second, and that must be the mode, if le this express oondition: that within three years after gal for the purpose. And so in like manner the third my decease the said society shall erect or cause to be and fourth modes stated.

erected on the grounds of said society, uear its church In regard to the first made, that the managers or di edifice, a chapel which shall cost not less than $30,000, rectors of the Bridgeport Protestant Widows' Society and which shall be named and known as “The Burof Bridgeport shall hold and manage the fund, we roughs Memorial (Chapel; ” and on the failure or negthink the object of the testatrix cannot be carried out lect so to do by said society, I give and devise the said by this mode, because, the corporation is not anthor real and personal estate to my residuary legatees aud ized by its charter to receive and administer charita- derisees, to be theirs forever, ble donations of this description as a trusteo; and we “In case there should be any good reason for extendmust therefore consider the second modo prescribed | ing said timo beyond said three years, the judge of by the testatrix. This mode for the administration of Probate can extend the time by his order in writing, the public charity is like tnat provided by the testa limiting however said society to some definite time tor in the case of Coit v. Comstock, 51 Conn. 352. In within which it shall erect said chapel." all essential particulars the modes are the same. The first question to be considered is whether the There, as hero, the trustees were invested with the condition attached to this donation is a condition preproperty till an act of incorporation could be procured cedent to the vesting of the property in the society or from the Legislature, and then the trustees were re a condition subsequent thereto? If it is a condition quired to transfer the same to tho corporation.

subsequent, then the property vested in the society on There, as here, it was made the duty of the trustees the death of the testatrix, but the estate was liable to to apply for the act as soon as it could reasouably be become extinguished unless the condition is complied done, and a reasonable time only for procuring the with. We think the condition is a condition subsesamo was contemplated by the testator.

quent. The languago of the testatrix iudicates this. It is said by the appellant that in that case the testa The grant is in the present tense – 1 give, not will tor expressly provided that the act of incorporation give when the society shall have erected a chapshould confer all the powers necessary and proper to el, etc. carry into full effect the purposes and objects of the Tho $10,000 which she gives seems to have been given bequest; but in the present case the will is silent on to assist the society to build the chapel if they shall the subject. But we think the same is clearly im- elect so to do. Jarman on Wills (vol. 2, p. 517), in plied. The testatrix fully expresses the object she summing up all the cases on the subject, says: “If the wishes to accomplish by the donation. The accomi condition is capable of being performed instanter, it is plishment of the object she commits to a corporation, a condition precedent; if time is required for the perto be chartered by the Legislature. Surely she in- | formance it is a condition subsequent. If a definite tended that the corporation should possess all the time is appointed for the performance of the condipowers necessary and proper to accomplish the object. tion, but none for the resting of the estate, it is a conThis is too manifest for controversy.

dition subsequent. Wigram on Wills, 272, says: “If We think the charitable donation made in the resid the condition is at all capable of being construed as uary clause of this will comes within the principles es subsequent, it will be deemed to be such." tablished by this court in the case referred to, and the Washburn, in his work on Real Estate, vol. 1, pp. 468, considerations of tho court applied to the will in that 472, quotes approvingly of the rule laid down by oase apply with equal forco to the residuary clause in Webster in Finlay v. King, 3 Pet. 362, which was: “If this.

the act may as well be done after as before the resting Similar claims were made in that case against the of the estate, the condition is subsequent." See also legality of the donation that are made in this, and they Hayden v. Inhab. of Stoughton, 5 Pick. 528; Tilden v. were all fully considored by the court, and decided ad Tilden, 13 Gray, 110; Jerrill v. Emery, 10 Pick. 507; versely to the claimants.

Parker v. Parker, 123 Mass. 581. These authorities

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