have related, the appellant would not be responsible for damages by reason of the defective condition of the spout and gutter during the tenancy of 'that firm. The only theory upon which she could be held liable at all was that when she rented the property to a new tenant it was her duty to see that it was then in such condition as would, or was likely to, injure third persons. The plaintiff's first and second prayers are based on that theory, and the defendant's fourth prayer, which was granted by the court, not only recognized that to be the law on that subject, but went further than the defendant had a right to ask, as it altogether ignored the change of tenants.

This fourth prayer did not limit the damages to injuries to the property from the time that Fiedler became tenant, but the jury might very well have understood that they could allow the plaintiff damages for all injury sustained by reason of the defective condition of the spout and gutter, regardless of the time when it occurred. The plaintiff's evidence tended to show that the injuries commenced before Fiedler became tenant, and, indeed, both of her prayers are based on the theory that the conditions complained of then existed. The plaintiff's witnesses who testified as to the amount of damages to the property did not, and probably could not, say what part of the damages were caused before, and what after, Fiedler became tenant, and yet the plaintiff could not recover for damages sustained while Charles E. Smith & Co. were tenants, under the circumstances detailed in this record. The plaintiff's second prayer concluded by submitting to the jury to find "that by virtue of said condition [referring to that of the down spout and gutter], and as a direct consequence thereof, the plaintiff's property was flooded with water prior to 1902, and since 1902, and damages according to the evidence, if they so find, then the plaintiff is entitled to recover in this action from the defendant." It is very questionable whether that may not have been misleading; but as we suppose the reference to the flooding prior to 1902 was intended to reflect upon the condition when Fiedler got possession, and the prayer only concludes that the plaintiff was entitled to recover, without stating for what, we did not hold that prayer bad. But, when we come to the fourth, that expression in the second undoubtedly might help to mislead the jury. So, taking all these matters into consideration, we are constrained to hold that there was error in granting the fourth prayer, because it did not limit the recovery to damages sustained after Fiedler became tenant, and is very misleading.

The defendant's first prayer was properly rejected, as there was legally sufficient evidence entitling the plaintiff to recover something. What we said about the second in another connection is sufficient, and we will not further refer to that. The fifth was

Where an insured, with knowledge of all the facts, refused to pay assessments then due to the insurance company, and directed the company to cancel the policy, in consequence whereof the same was abandoned, the beneficiary named in the policy had no claim thereunder. [Ed. Note.-For cases in point, see vol. 28, Cent. Dig. Insurance, § 891.] 3. LIMITATION OF ACTIONS SUFFICIENCY.

PLEA-FRAUD

Where, in an action on a life policy, defendant set up that with full knowledge of all the facts insured voluntarily elected to discontinue payment of assessments and dues and suffered the policy to lapse, and that for four years insured, with full knowledge of cancellation by the company in the premises, assented thereto, well knowing that the policy had lapsed and be come void, a replication to a plea of limitation to the effect that by the fraudulent conduct of defendant plaintiff's right of action was not discovered until less than three years before suit, was insufficient for failing to allege that the fraud was not discovered and could not have been discovered with ordinary diligence within three years before suit.

[Ed. Note. For cases in point, see vol. 33, Cent. Dig. Limitation of Actions, § 701.] Appeal from Superior Court of Baltimore City.

Action by Eldridge C. Price against the Mutual Reserve Life Insurance Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Argued before McSHERRY, C. J., and BRISCOE, PAGE, SCHMUCKER, JONES, and BURKE, JJ.

J. Kemp Bartlett, for appellant. John Prentiss Poe, for appellee.

PAGE, J. The questions in this case arise upon demurrers to the several pleadings. The narr. contains 13 counts, the first 4 being the ordinary money counts, the other 9 are special counts. The fifth count alleges that the Mutual Reserve Fund Life Association, now known as the Mutual Reserve Life Insurance Company, in December, 1882, insured the life of Elias C. Price, deceased, father of the appellant, for the benefit of the plain

tiff, and that the said appellee failed to carry out its contract with the said Elias; that the said Elias has since died, and by his last will and testament the appellant is the sole legatee of his estate; that the said insurance company failed to comply with its said contract of insurance, in that it did the things and omitted to do the things mentioned in the narr. as particularly mentioned in the fifth to the thirteenth counts inclusive. To this narr. the appellee filed 19 pleas, wherein he pleaded by the first plea limitations, by the second and third the general issue, by several pleas, from the fourth to the eighteenth, inclusive, special traverses, of the several breaches set out in the narr., and by the nineteenth plea "that with full knowledge of all the actings and doings of the defendant on the policy of insurance, and without any concealment or misrepresentations on its part, the said Elias Price voluntarily elected to discontinue payment on the mortuary assessments and dues, levied and assessed by the defendant, and thereby voluntarily suffered the said policy to lapse, whereby all the rights and claims of the said Elias Price wholly ceased and determined according to the express terms of said policy; and that said Elias Price, with full knowledge of all the acts and doings of the said insurance company, for more than four years fully acquiesced in and assented to all said doings, and well knew that said policy had lapsed and become null and void, wherefore it is further alleged that the said policy was canceled and terminated during the lifetime of the said Elias, and was acquiesced in by the said life association. The appellant, by his replication to the defendant's first plea, set up to the plea of limitations as follows: That by the false and fraudulent conduct and deceit of the defendant, his right of action was not discovered until within a period of less than three years prior to the bringing of this suit. He joined issue upon all the other pleas, except upon the nineteenth plea, to which he demurred. To this replication the defendant rejoined, setting up to the plea of limitations, first, that the defendant was not guilty of fraudulent conduct and deceit in relation to the policy, and that the said Price, with full knowledge of all the doings and acts of the said insurance company in reference to the said policy, had voluntarily refused to pay the assessment and had directed the company to cancel the policy, and, further, that said Elias lived for more than four years thereafter, and that the said Elias, as well as the appellant, did know of said alleged causes of action, and that the appellant could have discovered by the use of ordinary diligence the alleged causes of action, four years next preceding the institution of this suit.

The ap

pellant demurred to the second, third, and fourth rejoinders, and joined issue as to the fifth, whereupon the court sustained the demurrer as to the narr., overruled the rejoin. ders to the plea of limitations, and on the 62 A.-66

19th of July, 1905, on motion of appellees, rendered judgment in their favor, and from this the appellant has appealed.

Without further particularity in stating the voluminous pleadings in the case, it is apparent that the real questions involved are whether or not a legal cause of action is stated in the narr., and also whether the plea of limitations was properly pleaded, and, if so, whether the facts set out in the rejoinders thereto were legally effective to constitute a bar. Stripped of its verbiage, the ground of the plaintiff's right of recovery appears to be that the appellant, the son and sole legatee of Elias C. Price, bases his right to sue upon the facts that Elias in his lifetime entered into a contract with the appellee, and that the appellee failed to observe the obligations resting upon it by the terms of said' contract in the several particulars specially set out in the narr., notwithstanding the fact that in the lifetime of Elias the contract was by agreement between the said Elias and the company canceled. The appellant claims this right to sue, not because, under and by virtue of the contract itself, he has any such right, but solely because he was named as the beneficiary therein. It was laid down in Seigman v. Hoffacker, 57 Md. 321, and it seems to be well established, that "in a matter of simple contract a promise to one for the benefit of another may be enforced by the person for whose benefit the promise was made; but, "unless the promisee has some beneficial interest himself, he cannot maintain the suit." It does not appear whether the policy mentioned in the narr. was under seal or not. Assuming, however, that it was not under seal, the only averments showing the interest of the appellant are that he was named therein as the beneficiary, and also that he was the sole legatee of his father. If he claims as beneficiary, he can claim only as entitled to the fruits of the contract; but as beneficiary he cannot claim for wrongs inflicted by the company upon Elias Price, for the reason that he can claim by the terms of the contract only what can be realized therefrom. Here the injuries alleged are that the insurance company made illegal assessments upon Elias Price, failed to set apart a reserve fund, and did not place him in a particular class, etc., and unfairly and fraudulently took from him a large sum of money. These and the other matters set out in the declarations as breaches of the contract are matters for which the contract of insurance furnishes the appellant no ground of complaint as beneficiary. They are damages to Elias Price, which, when recovered. would inure to the estate of the deceased. An ordinary insurance upon the life of an individual is a contract by which the insurer, for a consideration, engages to pay a sum specified to the beneficiary according to the terms of the policy, if the person who is insured shall die within the period limited by the policy. 19 Enc. of L. & Eq. 42, tit

"Life Insurance." The interest of the appellant being that of a beneficiary, he had no interest in the policy further than that he could claim as beneficiary, and therefore no right to sue for the breach of the contract with Elias Price. If the breaches set out in the narr. can be recovered at all (and of this we are not to be understood as expressing any opinion), the personal representatives of Elias Price are the proper parties to sue. But, apart from this, the appellee by his nineteenth plea alleges that about April, 1898, Elias Price, with full knowledge of the actions of the defendant in relation to the said policy, "voluntarily elected to discontinue payment on the mortuary assessments and dues lawfully levied and assessed and suffered the said policy to lapse," and directed the policy to be canceled, and the same was canceled, and for more than four years acquiesced in the cancellation of the policy and in the doings and acts of the defendant and well knew that said policy had lapsed, etc., according to the express terms and conditions of the policy. The demurrer admits these facts, which are set out in the pleadings; and, further, by the second rejoinder to the said replication, it is alleged, that Price, with full knowledge of all the facts, failed and refused to pay the assessments then due, and directed the defendant to cancel the policy, and that in consequence thereof the policy was abandoned, etc. These facts are conclusive against any claim under the policy. Mutual L. I. Co. v. Sears, 178 U. S. 345, 20 Sup. Ct. 912, 44 L. Ed. 1096; Ryan v. Mutual Reserve Ins. Co. (C. C.) 96 Fed. 796; Mutual Life Ins. Co. v. Phinney, 178 U. S. 327, 20 Sup. Ct. 906, 44 L. Ed. 1088.

The plea of limitations was set up by the appellee's first plea. It applied to all the counts in the narr. To this the replication was "that by the false and fraudulent conduct and deceit of the defendant his right of action was not discovered until within a period of less than three years prior to the bringing of this suit." This replication was insufficient, in that it is not alleged that the fraud was not discovered and could not have been discovered with ordinary diligence within a period of three years prior to the bringing of the suit. Wear v. Skinner, 46 Md. 269, 24 Am. Rep. 517. Apart from this, upon the facts alleged in the appellee's rejoinder, the appellant was not kept in ignorance of his alleged cause of action by the fraud of the defendant, and could have discovered it within three years by ordinary diligence. Inasmuch as the plea of limitations as set out by the appellee's plea went to the whole declaration, including the four first counts, the court committed no error in sustaining the demurrer to the declaration and the plea of limitations. The appellant not having asked leave to plead over, the appellee, on motion, was entitled to judgment on the pleadings.

Judgment affirmed.

(102 Md. 642)

JACOB TOME INSTITUTE v. SHIPLEY et al.

SHIPLEY et al. v. SAME. (Court of Appeals of Maryland. Jan. 11, 1906.) 1. TRUSTS-CONSTRUCTION-ADVANCEMENTS.

Where a grantor by a deed of trust provided that at her death each of her children should receive a share of her estate, and in general terms made any advancements by herself or her husband to each child a charge on his share, and also made an advancement by one child to another a charge on the share of the latter, the specific advancement referred to had no priority over other advancements as a charge against the interest of the child to whom they were advanced.

2. SAME.

Where a grantor by a deed of trust provided that at her death, one-fourth of her estate should go to each of three children and the other one-fourth should go to the trustee for the benefit of the fourth child during his life and at his death to his children free of the trust, and the deed of trust made advancements to each child a charge on his share, advancements to the fourth child were a charge only on his equitable life estate, and not on the share of his children.

Appeal from Circuit Court, Baltimore County; N. Charles Burke, Judge.

Actions between the Jacob Tome Institute and Emory C. Shipley, trustee, and others, and between Harry V. Shipley and another and Emory C. Shipley and others. From an order overruling exceptions and ratifying an auditor's account, the Jacob Tome Institute and Harry V. Shipley and another appeal. Affirmed.

Argued before McSHERRY, C. J., and BOYD, SCHMUCKER, and JONES, JJ.

Joseph R. Gunther, for appellant Jacob Tome Institute. Z. Howard Isaac, for appellants Shipley and Duncan. Hyland P. Stewart, for appellees.

JONES, J. The questions in this case arise upon the construction to be given to certain provisions in a deed of trust executed on the 26th day of November, 1894, by Charlotte M. Shipley (widow), now deceased, to Emory C. Shipley, of all her estate and property of every nature. The deed provides for the payment of the grantor's debts; for the collection by the trustee of the "rents, profits. and income" from the granted property; and, after payment of expenses, for paying to the grantor a specified income and for a home for her with the trustee; then out of the remaining net income for paying to each of her four children during the lifetime of the grantor, and the children of any deceased child, the like sum of money, as a yearly income, as she provided for herself. Then, after directing what is to be done in case of an insufficiency of income from the estate, to pay to each child the specified annual sum, and what, in case the income should exceed the amount necessary, to pay said annual allowances, and conferring upon the trustee the power to sell, lease, mortgage, etc., the deed contains this provision: "Immediately from and after the death of the said Char

lotte M. Shipley, then the said Emory C. Shipley to hold the property and estate hereby granted, as follows, that is to say: To have and to hold a three-fourths undivided interest in said estate unto and to the use of the said Harry V. Shipley, Emory C. Shipley, and Ella M. Shipley, their heirs, executors, administrators, and assigns, as tenants in common, free, clear, and discharged from the trust hereby created, and to have and to hold the remaining undivided onefourth interest in said estate, in trust and confidence to collect the rents, income, and profits issuing from and arising out of said one-fourth interest, and after paying the expenses of said trust to pay over the net balance to the said Howard B. Shipley for and during the term of his natural life, and immediately from and after the death of the said Howard B. Shipley, then to the use of the children then living of the said Howard B. Shipley and the issue then living of any deceased child or children of the said Howard B. Shipley free, clear, and discharged from the trust hereby created; such children and issue to take per stirpes, and not per capita. And if no such children or issue then living of the said Howard B. Shipley then for the use of the said children of the said Charlotte M. Shipley, viz.: Harry V. Shipley, Emory C. Shipley, and Ella M. Shipley, then living and the issue then living of any deceased child or children of the said Charlotte M. Shipley, free, clear, and discharged from the trust hereby created. The said Harry V. Shipley, Emory C. Shipley, and Ella M. Shipley, and their issue, to take per stirpes, and not per capita: Provided, however, that at the time of the death of the said Charlotte M. Shipley there shall be an account taken of all sums of money that may have been heretofore advanced by Vincent T. Shipley, the late husband of the said Charlotte M. Shipley, to any of the said four children of the said Charlotte M. Shipley, respectively, and also of any sums that may have been advanced by the said Charlotte M. Shipley to them, or any of them, and also of any sums of money that the said trustee may be required to pay for, or on account of the said Charlotte M. Shipley by reason of any liability incurred by her through or on account of any of said four children, and all sums of money so found due by any one of the said children of the said Charlotte M. Shipley or to have been received by them, or any of them, shall be a charge upon the share of such child or children, respectively. And I hereby charge the share of the said Howard B. Shipley with the payment of the sum of $1,700 in favor of the said Emory C. Shipley, money advanced by the said Emory C. Shipley to the said Howard B. Shipley. But provided, further, that no interest shall be allowed or charged on any of said sums so found to be due and hereby made a charge on the respective shares of the said children of Charlotte M. Shipley."

Any

The deed now in controversy was before this court for construction in Shipley et al. v. Jacob Tome Institute, 99 Md. 520, 58 Atl. 200, as to questions which will appear by reference to that case. Since then the property which was the subject of the trust created by the deed in question has been sold, and the proceeds of sale are in court for distribution among the parties now entitled; some of the interests which passed under the deed to Mrs. Shipley's children having been acquired by other parties. An auditor's account was stated, making distribution of the proceeds of sale, and the questions in the case arise upon exceptions to this account of the auditor. The account was ratified by the court below, and the appeal here is from an order of the court overruling the exceptions and ratifying the account which was passed on the 1st of July, 1905. It appears that an order of ratification was passed on the 11th of July, 1905, also; and there being no specific reference in the order for appeal to this last-mentioned order or ratification some question was suggested as to the effect of a failure to appeal from such order. In the view we take of the case, this becomes an immaterial inquiry; though we may say that in the circumstances of the case we do not see much force in the suggestion. further recital of the facts will be unnecessary. The questions raised upon the exceptions are: (1) Whether the sums of money to be charged, under the provisions of the deed, against the share of Howard B. Shipley on account of money advanced to or paid for him as mentioned in the deed, are charges upon his equitable life estate only, or upon the entire one-fourth interest in the property which the deed conveys to the trustee to be held for the use of Howard B. Shipley during his life, and upon his death to his children then living, etc. (2) Whether the $1,700, which, by the deed, is made a charge on the share of Howard B. Shipley in favor of Emory C. Shipley, has priority over the charges to be made against his share under the general provision for charges against the children of the grantor for moneys received by them as mentioned in the deed. The auditor's account in question was stated on the theory that the charges alluded to in the first inquiry were to be made only against the life estate of the said Howard B. Shipley; and that the charge alluded to in the second inquiry had no priority. We think the account was stated upon the theory supported by a proper construction of the clause of the deed which has been recited, and was therefore properly ratified. Deeds are to be construed according to the intention manifested in the instruments themselves when viewed in their necessary relation to the circumstances surrounding the parties. This court has said this was a familiar and well-established doctrine. Ridgely v. Cross, 83 Md. 161, 34 Atl. 469, and cases there cited. As to the claim of priority for the

In regard to the first-mentioned inquiry, it is to be observed that in providing in the deed how the property is to be disposed of at her death the grantor gives to each of her children, except Howard B., a one undivided fourth "interest" in the same. The remaining undivided one-fourth "interest" is given to a trustee, who is to hold the legal title; and out of it is carved an equitable life estate for Howard B., and the whole of the estate in this one-fourth interest remaining, after carving out the life estate, is given to Howard's children; and then in certain contingencies it is to go over; thus making it manifest that all that Howard was ever to have was a life estate. Not only was it not provided that he should have anything more than this equitable life interest, but it was put beyond possibility that he should have anything more. Now when the grantor comes to provide for the charges the language is, "shall be a charge upon the share of such child or children," etc. She does not say the charge shall be upon each of the one undivided fourth interests. If each child had been allotted a one undivided fourth interest then the share of child and a one undivided fourth interest would have been equivalent terms; but each child did not take an undivided fourth interest. One of these interests was given to a trustee, and the child, as to this fourth, was given as a share thereof an equitable life estate in the same. All the balance of the estate or interest therein was given to others, and in such a way as to isolate, as it were, his life estate; for as has been seen no interest in the one fourth in question could come back to him, and it might pass out of his family.

The life estate in question, therefore, it would seem, was described by the term "share," as employed in the deed, and the most natural and obvious effect to be given to the term "share," as respects the share of Howard B. Shipley in the property disposed of by the deed, is to apply it to his equitable life estate. There does not appear in the deed anything to attach a different application to the term "share." On the contrary, there appears what would make this application the more reasonable one. We are to give effect to every provision in the deed, and carry out every intention indicated therein as far as possible. Now it seems evident that it was intended to make provision for the children of the son Howard and to make it independent of him; otherwise, why should they be brought into the deed or be taken into consideration in connection with it at

making this provision for Howard's children, it was in her mind so blended with the provision for Howard, that when she afterwards referred to the provision for Howard, or the interest she had given him, she was including in it the interest she had designated for the children. Again, it appears that the aggregate of the charges against Howard's share would more than consume the entire onefourth interest, which was given in trust for the benefit of him and his children. The circumstances indicate that the grantor must have known, at least very nearly, if not accurately, the extent of these charges, and she must have known the extent of the property of which she was disposing. That being so, if in providing for the charges against the "shares" of her children she meant that the entire one-fourth interest put in trust for Howard and his children should be made liable to the charges against him, she would have known that she was going through an idle ceremony to provide any remainder in such interest to the children of Howard; that she was accentuating the folly of so doing by provisions for remainders to others in the contingency of Howard, the son, leaving no children living at his death. It is but reasonable to suppose she thought she was dealing with substance in providing these remainders. Lastly, if she designed that the charges in question should impose a liability for their payment upon the whole of the undivided fourth interest left in trust she could readily, and it would seem naturally would, have used forms of expression in making the provision under consideration that would have made the meaning clear to that effect. The fact that no such form of expression was adopted goes to strengthen the construction that gives to the expressions that were used their more natural and ordinary meaning.

For the reasons assigned, we are of opinion that the account of the auditor was stated in accordance with a proper construction of the deed in question, and the order ratifying the same will be affirmed.

Order affirmed, with costs to the appellees.

(73 N. H, 434) STATE v. CORRON et al. (Supreme Court of New Hampshire. Sullivan. Dec. 5, 1905.)

1. CONSTITUTIONAL LAW-INTOXICATING LIQUORS-REGULATION.

The right to sell intoxicating liquor is neither a natural, essential, or inherent inalienable right, but one which the state may absolutely take away or regulate in its discretion.

[Ed. Note.-For cases in point, see vol. 29, Cent. Dig. Intoxicating Liquors, §§ 1, 4.] 2. CONSTITUTIONAL LAW--OBLIGATION of ConTRACTS-LICENSES.

A license by the state to sell intoxicating liquors is not a contract or a vested right, but is a mere permission, which the state is entitled to revoke at any time.

[Ed. Note. For cases in point, see vol. 10, Cent. Dig. Constitutional Law, § 300.]