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are wages; (2) they are payable in Massa- Pub. St. 1901, c. 245, $8 21, 22; Laws (Ed. chusetts; and (3) at the time of service upon 1792) p. 151; Cox v. Severance, 70 N. H. the trustee the defendant was indebted to 86, 46 Atl. 739, 85 Am. St. Rep. 602; Kib. the trustee.

ling V. Burley, 20 N. H. 359; Fletcher V.

Fletcher, 7 N. H. 452, 453, 454, 28 Am. Dec. Andrews & Andrews, for plaintiff. Henry

359; N. H. I. F. Co. v. Platt, 5 N, H. 193; N. Hurd and Burnham, Brown, Jones &

Stone V. Dean, 5 N. H. 502. Therefore, Warren, for defendant.

where it is sought to hold the trustee as li.

able upon negotiable paper, the trustee wili PARSONS, C. J. A trustee is chargeable, be discharged, unless the instrument comes not only for the funds of the defendant in his within the description of the statute. Chadhands at the time process is served upon bourn v. Gilman, 63 N. H. 353; Carbee v. him, but also, with certain exceptions, for Mason, 64 N. H. 10, 4 Atl. 791. all that may come to his hands up to the time By the terms of the contract between the of disclosure. Pub. St. 1901, c. 245, $ 19;

defendant and trustee, the fund in question Gove v. Varrell, 58 N. H. 78; Palmer v. was at the time of the attachment payable Noyes, 45 N. H. 174, 178; Smith v. Railroad,

in Massachusetts. It does not appear that 33 N. H. 337, 345; Edgerly v. Sanborn, 6 N. the original contract or the variation relied H. 397. Wages for labor performed by the upon were reduced to writing. But, assumdefendant after service upon the trustee are ing that they were, the instrument was not an exception. Pub. St. 1901, c. 245, $ 20. negotiable. So far as it is disclosed, it was a If the renewal commissions are payments for mere contract of employment specifying the labor performed in placing the original poll- agreed remuneration for service rendered. cy, the fund disclosed is not within the ex. It is not within the exception existing before ception because it is to be inferred such the legislation extending the process of forlabor was performed before the defendant eign attachment to cover certain negotiable left the state prior to the service, and for paper, and the provisions of the statute have the further reason that the wages excepted no application. The plaintiff is not seeking are only those accruing as payment for pure

to enforce the contract, but to reach property ly personal service. A fund created in part

in the trustee's hands which the contract by the labor of others than the wife and shows to belong to the defendant. The con. minor children of the defendant is not ex- tract is material only on the question of ticepted. Robbins v. Rice, 18 N. H. 507, 510; tle, and performs the same office as a bill of Hale v. Brown, 59 N. H. 551, 47 Am. Rep. sale or deed of land in a proceeding to hold 224; Gray v. Fife, 70 N. H. 89, 47 Atl. 541, the trustee for the purchase price of goods 85 Am. St. Rep. 609. Where “no means are or land. The fund in the possession of the furnished by which it is possible to extricate trustee here is attachable, regardless of the the privileged labor from the other ingredi- agreement of the trustee to transport it to ents composing the cause of indebtedness and the defendant at Boston, precisely as a horse to ascertain its value," the trustee is charge- or car load of goods would be. The fact that able.

payment of a debt is agreed to be made out Prior to the act of June 30, 1841 (Laws of the state is not an answer to the trustee 1841, p. 527, c. 601; Rev. St. 1843, c. 208), a process. Sturtevant v. Robinson, 18 Pick. trustee could not be charged on account of (Mass.) 175; Blake V. Williams, 6 Pick. his liability to the defendant on a negotiable (Mass.) 236, 315, 17 Am. Dec. 372. It does promissory note or by reason of any chose in not appear that by the contract a demand by action of the defendant in his possession.

the defendant in Massachusetts was made a The negotiable character of the instrument condition precedent to his right of action to evidencing his liability in the first case recover the debt. If it were, in the absence whereby, if he were charged, a bona fide of such a demand, the defendant could not holder might suffer a loss or the maker be maintain an action for the fund here or elsecompelled to pay twice, and the lack of where. To the general rule that the trustee means for enforcing the security in the sec- can be charged only for what the defendant ond, were the reasons for the holding that could recover of him in an action on the con. such liabilities or securities were not includ- tract there are exceptions. Libby V. Comed within the terms “money, goods, chattels, pany, 67 N. H. 587, 32 Atl. 772. He may be rights or credits," used in the act of 1791. charged where the defendant could not mainBy the act of 1841, means were provided for tain a suit without proof of a demand, althe collection of choses in action held by the though none has been made. Quigg v. Kitt. trustee, and his liability upon negotiable redge, 18 N. H. 157; Woodbridge v. Morse, 5 promissory notes "made or payable in this N. H. 519. "The trustee is to be charged state, or the parties to which, at the time of whenever it appears that he has money in his making the same, resided in this state," was hands which the principal has a right to remade subject to attachment by this process. ceive upon demand, whether a demand has The legislation was subsequently extended

been made or not." (Gen. St. 1867, c. 230, $ 21) so as to include all In argument in this court it appears to be negotiable paper “made and payable in this urged that the trustee is not an inhabitant state, or the parties to which, at the time of of the state. It has been held that a resi

though served with process here, cannot be charged as trustee except upon a contract to be performed here, or for goods of the defendant actually in his possession here at the time of the service of the writ upon him. Lawrence v. Smith, 45 N. H. 533, 86 Am. Dec. 183; Young v. Ross, 31 N. H. 201; Sawyer v. Thompson, 24 N. H, 510; Jones v. Winchester, 6 N. H. 497. This objection does not appear to have been taken in the superior court, and the facts as to the residence of the trustees are not fully found; but, from the absence of objection to the validity of the attachment by service upon the insurance commissioner, it may be inferred that the trustee is a foreign "jointstock or mutual insurance company,” duly admitted to and doing business in this state subject to its laws. Pub. St. 1901, c. 169, Š 4. In view of the statutory provisions on the subject (Pub. St. 1901, c. 170, § 14; Id., C. 169, $ 4), whether such a party appearing as a litigant in the courts of the state is to be regarded as a resident of the state or otherwise may be a question requiring serious consideration. Tinie need not be now taken for the purpose; for, assuming that the trustee is to be regarded as a nonresident doing business in the state, the case is fully covered by the statute. "A person doing business in this state and residing outside the state may be summoned on trustee process,

and he may be charged as trustee, as if he were an inhabitant of this state, rights or credits of the defendant by reason of contracts made or performed within the state." Pub, St. 1901, c. 245, 8 5. The credits for which it is sought to charge the trustee accrue to the defendant “from business in New Hampshire done by him and his subagents.” In the language of the statute they are "credits of the defendant by reason of contracts

performed within the state," wherever the contract was made, which does not appear. The trustee there fore is to be charged "as if it were an inhabitant of this state."

Trustee chargeable. All concurred.

• for any

never vested, and at common law would fail through the termination of the estate supporting it.

(Ed. Note. For other cases, see Remainders, Dec. Dig. § 10.*] 3. WILLS (8 439*)-CONSTRUCTION – RULESABROGATED.

A testator's intention will be given effect, rega rdless of the form of words used and of the absence of technical terms, if he does not intend to create an illegal or impossible estate.

[Ed. Note. For other cases, see Wills, Cent. Dig. $ 955; Dec. Dig. § 439.*] 4. WILLS (8 491*)-TESTATOB'S INTENT-AsCERTAINMENT-METHOD.

In interpreting a will, testator's intent is to be determined as a question of fact from competent evidence, and not by rules of law.

[Ed. Note. For other cases, see Wills, Cent. Dig. $ 1058; Dec. Dig. § 491.*] 5. WILLS (8 536*) — CONSTRUCTION -TESTATOR'S INTENTION.

A will giving testator's widow the use of the estate for life, with remainder to his sons' children, does not authorize an inference that he intended that the children should have the estate if he survived his wife, or that his sons should have it if she survived testator and the sons had no children.

[Ed. Note. For other cases, see Wills, Dec. Dig. 8 536.*] 6. WILLS (8 10*)—TRUSTS-CREATION TO PRESERVE CONTINGENT REMAINDER,

Under a will giving testator's widow a life estate, with remainder to his sons' children, testator's failure to provide for trustees to hold an estate sufficient to support the remainder, on the death of the widow before the anticipated birth of children, did not render impossible the preservation of the estate for them; it being presumed that he intended to impose such trust upon the executor appointed to collect the estate, and transmit it to the persons entitled.

[Ed. Note.-For other cases, see Wills, Dec. Dig. § 10.*] 7. TRUSTS (8 160*)-FAILURE OF TRUSTEEAPPOINTMENT BY COURT.

If plaintiff administrator cannot execute a trust impliedly created by testator, to hold an estate to support a remainder on the termination of the particular estate before the birth of the remaindermen, the superior court can appoint a trustee.

[Ed. Note. For other cases, see Trusts, Cent. Dig. § 207; Dec. Dig. § 160.*] 8. WILLS (8 439*) — CONSTRUCTION – TESTATOR'S INTENTION.

Testator's intention that his real and personal estate should take the same course must be given effect.

(Ed. Note.-For other cases, see Wills, Dec. Dig. § 439.*] 9. WILLS (8 728*)-CONSTRUCTION - UNBORN REMAINDERMEN.

A will giving the remainder of testator's estate to his sons' children at his widow's death does not give the sons the income before nor after the birth of the children.

(Ed. Note.-For other cases, see Wills, Dec. Dig. 8 728.*]

Transferred from Superior Court, Hillsborough County ; Peablee, Judge.

Petition by Henry W. Hayward, administrator, against Albert M. Spaulding and another; for advice as to the execution of Jonathan Spaulding's will, transferred from the superior court. Case discharged.

(75 N. H. 92)

HAYWARD V. SPAULDING et al. (Supreme Court of New Hampshire. Hills

borough. Nov. 4, 1908.) 1. WILLS ($ 634*)-CONSTRUCTION REMAINDERS-NATURE.

A will, devising the remainder of testator's estate to his sons' children, devised a contingent remainder where the sons' had no children when the will took effect.

(Ed. Note.-For other cases, see Wills, Cent. Dig. $81488, 1490, 1498, 1501; Dec. Dig. 8 631.*] 2 REMAINDERS (8 10*) — CONTINGENT REMAINDERS-FAILURE TO VEST.

Where a will devised the remainder of testator's estate to his sons' children at his widow's death, and no children were born during the existence of the life estate, the remainder

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The will contains the following clause: never be deemed an executory devise (Bur"At the decease of my said wife, or in case leigh v. Clough, 52 N. H. 267, 273, 13 Am. Rep. of her marriage after my decease, I give, 23), it is said that, where the preceding freebequeath, and devise all the property in her hold has once vested so as to support a conhands and possession at the time of the hap- tingent remainder, the devise cannot, by any pening of either event in equal shares to the subsequent accident, inure as an executory children of my two sons, Charles A. Spauld. limitation. Fearne, Rem. 386, 395, 526. ing and Albert M. Spaulding, and their heirs But the validity of these rules, however forever.” The will gave the widow the es- well supported by authority, need not be tate for life, with the right to use the prin- considered However simple their applicacipal, if necessary for her support, and nam- tion would make the disposition of the case, ed her as executrix. After her decease the they cannot be relied upon. Rules of interplaintiff was appointed and received both pretation under which particular phrases or realty and personalty as the estate of Jona- terms are necessary to express a particular than. The two sons were Jonathan's only intention, or to give effect thereto, have long descendants. Charles died after his father's since been abandoned here. As was said in death, but before that of his mother. He Kennard v. Kennard, 63 N. H. 303, 311, in left a widow, but no children. Albert is a reference to earlier cases then cited and rebachelor about 50 years old,

lied upon: “Upon the rule of testamentary George E. Bales, for plaintiff. Hess & interpretation established in this state, it is Crow, for defendants.

immaterial whether the doctrine of remain

ders is correctly or incorrectly applied. PARSONS, C. J. At his decease the tes

Whatever that doctrine may be, tator left a widow and two sons. Neither and however it may be applied, it does not of the sons then had, or bad had, children. set aside the supreme rule that the interpreUnder the provisions of his will a child of

tation of a will is the ascertainment of the either of the two sons living at the testator's

testator's intention. If it upholds the intendeath would have taken an interest in the

tion disclosed by the terms of the will in real estate defined under the terms of the this case, it is useless. If it does not uphold common law as a “vested remainder," the it, it is equally useless, as it cannot break vesting of which would have opened to let

the will." in after-born children, while such interest It is not necessary that the intention of might have been destroyed by the consump

any written instrument should be expressed tion of the estate in the necessary support in a particular form of words, or by the use of the widow. As there was no child in ex- of technical terms. “It is sufficient if the inistence when the will took effect, the gift tention of the parties can be gathered from over was to a dubious or uncertain person.

the instrument, read in the light of the comSuch a remainder is described as "contin- petent evidence bearing upon its interpretagent." As no child was born during the ex- tion.” Upton v. Hosmer, 70 N. H. 493, 495, istence of the particular estate in the wid

49 Atl. 96. The testator's intention is the ow, the remainder never vested; and, under sole subject of inquiry. It “is determined as the strict rules of the common law, the re- a question of fact by competent evidence, and mainder failed because of the termination not by rules of law." Edgerly v. Barker, of the estate which supported it. Executory 66 N. H. 434, 447, 31 Atl. 900, 28 L. R. A. devises were instituted to support the will 328, and cases cited; Stratton v. Stratton, 68 of the testator in cases where, by the rules N. H. 582, 585, 44 Atl. 699. When ascertainof law, a devise of a future estate could not ed, such intention is to be given effect, with operate as a remainder. They “were allow- the exception, however, that the intention ed, out of indulgence to testators, that they cannot be followed when it is impossible or might, without the intervention of trustees illegal to do so; "for an intention will not to preserve remainders, establish future in- avail to create an ille an impossible terests in strict settlement beyond the reach estate.” Burleigh v. Clough, 52 N. H. 267, of those who had the prior estate.” Bur- 271, 13 Am. Rep. 123. Decisions "which leigh v. Clough, 52 N. H. 267, 273, 13 Am. have in so many cases defeated the intention Rep. 23; Wood v. Griffin, 46 N. H. 230, 235; of testators, by substituting, through the Yeaton v. Roberts, 28 N. H. 459; Eaton v. application of an artificial and technical rule Straw, 18 N. H. 320.

of law, a different estate from that which If there had been no devise to the widow, the testator intended” (Eaton v. Straw, 18 N. or if the devise to her had lapsed by her H. 320, 329, 330), are not now followed here. death before the testator, the devise to the The testator intended that his real esunborn children would have been support- tate, as well as his personal property, should able as an executory limitation (Fearne Rem, go to the children of his two sons. The gift 525, 526), because in such case the limited was one he had power to make. The fact estate was never supported by a freehold that his wife survived him, or that no child and could not be construed a remainder, was born in the lifetime of the widow, is which requires such an estate to support it. not a sufficient reason for breaking his will. But in consequence of the rule that a devise It cannot be inferred from the will that he estate if he survived his wife, and that his methods, together with notes on library progress. sons should have it if she survived him, be

The board of trustees sought to have published cause he expressly provided in that case for

a reference index to biographical sketches of

New Hampshire men contained in the state the extent to which the gift to the children

library, which would require more than 100 should be diminished by the necessities of pages of printed matter. Held, that the statthe widow. Neither does his failure to pro


contemplated the publication of small

pamphlets, directly relating to library work, as vide trustees to hold an estate sufficient to

stated therein, and the publication of the index, support the remainder, in case of the death in the place of special bulletins, was not auof his widow before the anticipated birth of

thorized thereby. children, render impossible the preservation

[Ed. Note.-For other cases, see States, Dec.

Dig. $ 67.*] of the estate for them. He knew that at the death of his widow the appointment of an


TRUSTEES OF STATE LIBRARY-AUTHORITY TO executor in the capacity of the plaintiff, to PUBLISH CATALOGUE. collect the estate and transmit it to the per- Laws 1893, p. 28, c. 31, § 7, authorizes the sons entitled, would be required. Not hav

trustees of the state library to cause an al

phabetical catalogue of the books received to be ing provided another to hold the property, if

substituted in place of the existing system of necessary, it is to be inferred he intended to entry of books, provided that a catalogue of impose such trust upon the plaintiff or upon

the books shall be first made and printed, and, the person who might occupy his position.

pursuant thereto, an authors' list was published

in two volumes, aggregating 1,600 pages, conCampbell v. Clough, 71 N. H. 181, 51 Atl.

taining a complete list of the books, alphabeti668; Chase v. Currier, 63 N. H. 90. If the cally arranged according to the authors' names, plaintiff cannot execute the trust, a trustee

and thereafter the state board attempted to pubcan be appointed by the superior court. 1

lish a catalogue of the same books classified

according to their subjects. Held, that the auPer. Tr. $ 121.

thors' list published was the only catalogue auThe testator intended that both the real thorized by the statute to be published in addiand personal estate should take the same

tion to the periodical supplements thereto, and

the second catalogue according to subjects was course. Effect must be given to that inten

unautborized. tion. Parker v. Ross, 69 N. H. 213, 316, 45 [Ed. Note.-For other cases, see States, Dec. Atl. 576. It is unnecessary to consider wheth- Dig. & 67.*] er the objections that have been urged to the Transferred from Superior Court, Merripreservation of the real estate for the un- mack County; Pike, Judge. born children are, or are not, applicable to Mandamus by William D. Chandler and the personal estate. If they are not, as ap- others, trustees of the state library, against pears to be conceded in argument, the testa- Edwin G. Eastman and others, members of tor's intention that both should take the

the Public Printing Commission, to compel same course is a further answer to the objec- defendants to publish certain publications, tions that have been raised.

Facts agreed, and case transferred from the The time of distribution intended by the

superior court. Petition denied. testator is now immaterial. Whenever he in

The plaintiffs are the trustees of the state tended or expected such distribution to be

library, and the defendants constitute the made, he did not intend the distribution should be made before any of the class to

public printing commission. The questions

presented are: (1) Whether the manuscript whom he gave his estate came into existence.

for a Reference Index to Biographical As the testator intended the children should have all the property, and gave none to his

Sketches of New Hampshire Men in the

Books and Publications in the State Library sons, he did not intend the sons should have the income after, or before, the children

may be published for and in the place of should be born.

one or more library bulletins, under section Case discharged.

9, c. 118, p. 481, Laws 1895; and (2) whether the manuscript for a Subject List Cata

logue of the state library may be printed unPEASLEE, J., did not sit. The others con

der section 7, c. 31, p. 28, Laws 1893, an Aucurred.

thor List Catalogue having been published

thereunder in 1904. If either of these ques(75 N. H. 88)

tions is decided in the affirmative, the writ CHANDLER et al. v. EASTMAN et al.

is to issue; otherwise not. (Supreme Court of New Hampshire. Merri- James F. Brennan, for plaintiffs. Edwin mack. Nov. 4, 1908.)

G. Eastman, Atty. Gen., for defendants. 1. STATES (8 67*) - OFFICERS AUTHORITY BOARD OF TRUSTEES OF STATE LIBRARY

WALKER, J. The first question presented PUBLICATIONS AUTHORIZED. Laws 1903, p. 9, c. 6, § 2, impose on the

by the case is whether the Reference Index, board of trustees of the state library all the if printed, would constitute a library bulletin powers and duties formerly incumbent upon the which the statute authorizes the trustees to board of library commissioners, and Laws 1895,

prepare and have printed at the public exp. 481, c. 118, § 9, require the latter to issue a library bulletin at least twice a year, con

pense. “All printing, binding, and blanktaining recommendations as to the best library book making required by the several depart

ments of the state government and paid for intention of the statute. If further evidence out of the state treasury shall be termed in support of this conclusion were required, 'public printing for the purposes of this act. it might be found in the fact that the inAll of the public printing shall be ordered dex as prepared would make more than 100 by the public printing commission, and no pages of printed matter. It would be an exother party or parties shall have authority tensive compilation. It cannot be inferred to contract for said public printing in the that the statutory authorization included name of the state of New Hampshire.” such lists, catalogues, or dictionaries as the Laws 1901, p. 579, c. 84, § 2. The board of trustees might think would be useful to litrustees of the state library having all “the brarians, without regard to their size and powers and duties" formerly “by law made extent. A complete catalogue of the books incumbent upon the board of library commis- in the state library might be of material assioners" (Laws 1903, p. 9, c. 6, § 2), it is sistance in local library work, throughout their duty "at least twice in each year" to the state; but it would be difficulty to justi“issue a library bulletin, which shall contain fy a construction of the statute that such a recommendations as to the best methods to catalogue might properly be called a bulletin. be employed in library work, together with The intention was to provide for the publicanotes on library progress, and such other tion, not of large books, but of small pamphmatters of general information relating to lets; not of extensive indexes, but of reclibrary work as they may deem proper." ommendations and facts relating to library Laws 1895, p. 481, c. 118, § 9. It cannot be work, stated with reasonable brevity and doubted that it has been the established pol- conciseness. As the proposed Reference Inicy of the state for many years to promote dex is intended by the trustees to take the and encourage the establishment and main- place of several bulletins which would othertenance of free public libraries; and, in or- wise be issued, during the space of a year or der to more effectually carry out this pur- more, and as it does not answer the reasonpose, the duty of distributing bulletins of in- able requirements of a bulletin, its publicaformation upon the subject of library man- tion at public expense is not authorized by agement among the town libraries was im- section 9, c. 118, p. 481, Laws 1895. Its posed upon the trustees of the state library. | publication would not be a substantial comTo accomplish the best results such inform- pliance with the statute. ation is manifestly of prime importance, and The second question is whether the Author

this consideration cannot be disregarded in List of the state library constitutes the cat* deciding the question of the legislative inten- alogue which the trustees were authorized

tion in authorizing the publication of library to publish by section 7, c. 31, p. 28, Laws bulletins. But while the trustees have a 1893; that is, whether the Author List wide discretion in determining what infor- consisting of two large volumes aggregatmation relating to library work it is desira- ing over 1,600 pages, printed in 1904, is the ble to print in the bulletin, their authority "catalogue of books" which that statute auin a given case is bounded by a reasonable. thorized to be printed, or whether it is only construction of the legislative purpose. Το an incomplete catalogue which may now be label a document a "bulletin" does not neces. completed by the publication of an extensive sarily give it that character.

Subject List. The statute referred to proWas it within the purpose of the Legisla- vides that “the trustees of the state library ture, ascertained from all the competent evi. are authorized to cause the present system dence, to authorize the printing and dis- of entry of accessions by classes to be omittribution of "a Reference Index to Bio- ted from the report of the librarian, and an graphical Sketches of New Hampshire Men alphabetical catalogue of books received for Contained in the Books and Publications in the period covered by each report to be reg. said State Library,” under the general desig- ularly substituted therefor, so far as such nation of a library bulletin? It is evident books or pamphlets have been entered in the that such a publication would not contain official catalogue; provided, that a catalogue "recommendations as to the best methods to of books shall be first made and printed.” If be employed in library work,” or “notes on the Author List does not constitute the library progress." In would be merely a list catalogue which the Legislature of 1893 inof names, or a special catalogue. The prin- tended to authorize, it is contended by the cipal or determining characteristic of a bul- plaintiffs that authority remains under the letin, as prescribed by the Legislature, is its statute for the publication of the Subject capacity to furnish useful advice upon mat. List, in order to complete the authorized cat. ters pertaining to the successful conduct of alogue. No suggestion is made that the town libraries. The proposed index does not printed volumes are not a complete catalogue fulfill this requirement. It advises nothing; of the books "in the miscellaneous departit recommends nothing; it is merely an ex- ment of the library on June 1, 1902,” as antended list of names, which would doubtless nounced therein, or that they were not inbe of great convenience to librarians in their tended to be a complete list thereof, arrangsearch for biographical sketches of New ed substantially according to the authors' Hampshire men, but which does not consti- names. To one not versed in the technicali.

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