powers relating to trusts, will afford the beneficiaries an adequate remedy.

It does not appear, other than from the very general description of the property given in the case, what its income-producing capacity is. As described, the property is quite extensive in quantity, and appears to be favorably located for business purposes, and to have acquired a particular business character by prior use. It would seem probable that its net income will be sufficient at all times to pay the annuities and something to the general owners. It is unnecessary to consider at this time what would be the effect upon the annuitants in case the net income should be insufficient at any time to pay them in full-a question that may never arise. An annuity may be perpetual, or for life, or for a period of years. A gift of an annuity to a person, without a limitation or qualification as to duration, would generally be understood as designed to continue during the life of the annuitant. 2 Story, Eq. Jur. § 1065a, and notes; Bates v. Barry, 125 Mass. 83, 28 Am. Rep. 207; Yates v. Madden, 3 Macn. & G. 532; Blight v. Hartnoll, 19 Ch. Div. 294. Here the annuitants are corporations, and all the evidence tends to show that the intention was that each annuity should continue so long as the corporation to which it is given exists and fulfills the purposes designed by the corporation's charter. That it may continue perpetually does not affect its validity: Charitable trusts are not within the rule against perpetuities. Rolfe & Rumford Asylum v. Lefebre, 69 N. H. 238, 45 Atl. 1087.

Where, in trespass, the title to land was litigated under a plea of the general issue, defendant was entitled, after verdict, if necessary, to amend his plea to conform to the proof, by filing a special plea of soil and freehold in the disputed territory.

3. APPEAL-VERDICT-MOTION TO SET ASIDEQUESTIONS OF LAW.

The denial of a motion to set aside a verdict because it was alleged to be against the law and the evidence raises no question of law reviewable on exceptions.

4. TRIAL MISCONDUCT OF JURY-WAIVER.

Where plaintiff had knowledge of certain misconduct of the jury, but failed to call the matter to the court's attention until after a verdict had been rendered for defendant, plaintiff thereby waived the right to insist on such

Where, in trespass quare clausum, the boundary line of the land was in dispute, and plaintiff moved to set aside a verdict for defendant because a juror expressed an opinion in favor of the line claimed by defendant before the evidence was fully heard, and because certain persons made remarks as to the case within the hearing of the jury, while they were taking a view, but it was not shown that the opinion so alleged to have been expressed was made by a juror, nor what the remarks alleged to have been made in the presence of the jury were, the denial of the motion for such reasons was not error.

6. APPEAL-STATEMENTS OF COUNSEL-PREJ

UDICE.

In trespass, where a boundary line was disputed, the statement of a conceded fact by defendant's counsel, in answer to an inquiry of the court, having no tendency to prove where the line in question was located, was not prejudicial.

Transferred from Superior Court; Stone,

Judge.

Trespass quare clausum by Frank E. Lyman against Alphonzo D. Brown. Verdict was rendered in favor of defendant, and the cause was transferred to the Supreme Court on exceptions to the overruling of defendant's motion to set the verdict aside. Exceptions overruled.

The plaintiff moved that the verdict be set aside and that judgment be ordered in his favor, for the following reasons: (1) The verdict is against the law and the evidence; (2) the jurors did not keep together at the view, and were spoken to for that reason by the sheriff who had them in charge; (3) during the view of the line claimed by the parties, some of the jurors drank cider as it was offered to them; (4) before the evidence was fully heard, one of the jurors expressed an opinion in favor of the line claimed by the defendant; (5) during the trial the defendant's counsel, in the hearing of the jury, made a statement, to which exception was taken, relative to the boundaries of a lot of an adjacent owner, after evidence upon that point had been offered and excluded by the court; (6) during the trial certain persons, in the hearing of the jury, made remarks relative to the case which were not objected to by him, and continued until stopped by the sheriff. A hearing was had upon the motion, and certain facts were found which appear in the opinion. The motion was denied, and the plaintiff excepted.

Josiah H. Hobbs, for plaintiff. Arthur L. Foote, for defendant.

BINGHAM, J. The plaintiff owns a lot of land situated in Madison, and the defendant's wife owns a lot in Tamworth, adjoining the plaintiff's lot on the west. The title to both lots was derived from the same grantor. The boundary between the towns is a straight

line. It is also the division line between the lots. The plaintiff claimed at the trial that the town line was located on the ground about seven rods west of where the defendant claimed it to be. The territory upon which the alleged trespass was committed is located between the lines thus claimed. The defendant justified the acts complained of as the agent of his wife. The jury were instructed that the only contention between the parties was in respect to the location of the original boundary line between the towns; that if it was located where the plaintiff claimed it was, the defendant was a trespasser; but if it was located where the defendant claimed, he was not. No exception was taken to this instruction, and none properly could have been. The defendant pleaded the general issue. Under that plea, as it is now understood in this state, the title to the disputed territory could be determined. Tabor v. Judd, 62 N. H. 288, 290. Since the decision in Tabor v. Judd, the necessity of a special plea of soil and freehold to try the title to disputed territory seems to have been done away with; but if this is not so, and the defendant should have pleaded specially, he may now be permitted to do so by amending his pleadings in the superior court to conform to the issue actually tried.

The first reason assigned in support of the motion to set aside the verdict raises no question of law. The second and third reasons assigned are not sufficient to justify setting aside the verdict, when considered in connection with the facts found at the hearing upon the motion. It seems that the plaintiff and his counsel were present at the view taken by the jury, and knew what took place there. They made no objection at the time, and failed to call the matter to the attention of the court until after a verdict had been returned for the defendant. If they regarded the conduct of the jurors as irregular and prejudicial to the plaintiff's rights, they should have so informed the presiding justice when they returned to court after finishing the view. Instead of so doing, they chose to go on with the trial and obtain a favorable verdict if they could. By so doing they waived any right the plaintiff might have had to insist on these objections. Tabor v. Judd, 62 N. H. 292, 293; Noyes v. Gould, 57 N. H. 20, 25.

The fourth reason assigned is not supported by the facts, for it is not found that the person who expressed an opinion in favor of the line claimed by the defendant, after the view was taken, was a juror. And the answer to the sixth reason is of a like character. It is not found what the remarks alleged to have been made in the presence of the juror were; and although the juror thought they related to the case, he did not know who the persons making them were, nor what they said.

The fifth reason is likewise without merit. It was conceded at the trial that the division

line between the lots was the boundary line between the towns. The controversy concerned the location of that line. The reply of the defendant's counsel to the inquiry of the court-"I want to say that it (the land of the witness Bickford) is bounded by the Madison town line on the east"-simply tended to show that the division line between the lots was the town line, a conceded fact. Standing alone, the reply had no tendency to prove where the line was located, and, if incompetent, it was not prejudicial.

We think it unnecessary to say more concerning the exceptions taken to the argument of counsel, than that we are of the opinion they are not well founded.

Exceptions overruled. All concur.

(73 N. H. 405)

HOOD v. MONTGOMERY et al. (Supreme Court of New Hampshire. Rockingham. Dec. 5, 1905.)

1. PARTITION-APPOINTMENT OF COMMITTEE―

REVOCATION.

Under Pub. St. 1901, c. 243, §§ 10, 20, making it the duty of the judge of probate to appoint "suitable persons" as members of a com mittee to make partition, where the judge of probate made an appointment, relying upon an alleged agreement of the parties as to the suit-. ableness of the appointees, when in fact there had been no such agreement, the court had power, on objection by one of the parties to the action, to correct the error by revoking the appointment.

2. SAME TIME FOR HEARING OBJECTION.

Where, after the appointment of a committee to make partition, defendants objected to the committee as constituted, and the court in its discretion postponed the consideration of the objection until after the return of the committee's report, such action did not as a matter of law amount to a waiver of defendant's objection seasonably made, nor was the nonaction of the court equivalent to the order overruling the objection, and it was proper for the court to sustain the objection after the committee made its report.

3. SAME-REVIEW.

Where the probate court revoked the appointment of a committee to make partition, for the alleged reason that the committee was appointed upon representation made by counsel for the petitioner that the adverse parties had consented to the appointment, which representation was false, it was error for the su perior court to dismiss the appeal, inasmuch as a hearing by such court was necessary to determine the truthfulness of the allegations.

Exceptions from Superior Court; Stone, Judge.

Petition by Fannie M. Hood against Mary W. Montgomery and another in the probate court for the partition of real estate. From an order setting aside the report and revoking the appointment of the committee to make partition, plaintiffs appealed to the superior court. From an order sustaining defendants' motion to dismiss the appeal, plaintiff brings exceptions. Exceptions sustained.

Upon the petition of the plaintiff for the partition of certain real estate, the probate court appointed a committee to make the partition, the members of which the court un

derstood at the time had been agreed to by the parties. Afterward, but before the time for taking an appeal had elapsed, the defendants objected to the committee as constituted, claiming that they did not agree to the appointment of one of the members. At the suggestion of the court, the consideration of the defendants' objection was postponed until the committee should make a report. When the report was returned, the defendants objected to it, and asked that it be set aside and for the appointment of another committee. The court thereupon entered a decree or order setting aside the report and revoking the appointment of the committee, for the reason that the committee was appointed "upon the representation made to the court by counsel for the petitioner that the counsel for the petitionee had agreed upon and consented to the appointment of the committee as herein named," which representation was not in fact true. Thereupon the plaintiff took an appeal to the superior court, assigning, among other reasons of appeal, the legal positions that the probate court had no authority to set aside the report of the committee and that the remedy of the defendants was by an appeal. The defendants' motion to dismiss the appeal was granted, and the plaintiff excepted.

G. K. & B. T. Bartlett, for plaintiff. Butnham, Brown, Jones & Warren, for defendants.

WALKER, J. It was the duty of the judge of probate to appoint "suitable persons" as members of the committee. Pub. St. 1901, c. 243, §§ 10, 20. If unsuitable persons were appointed, it was the right of the defendants to object and to seek to have the appointment revoked, if they presented their objection in a reasonable time after they were informed of the facts authorizing that conclusion. The fact that parties agree that certain persons may be appointed upon the committee is evidence that in that proceeding they are "suitable." It appears that the judge of probate made the appointment in this case, relying upon the alleged agreement of the parties as to the suitableness of the appointees, but that the defendants upon learning of the appointment objected thereto, because there was no agreement as to the appointment of one of the men. Having been misled in this material respect, the court had the power to correct the error by revoking the appointment, when the matter was seasonably and properly called to its attention. Ayer v. Messer, 59 N. H. 279, 280; Reed v. Prescott, 70 N. H. 88, 46 Atl. 457. The appointment of the committee was a preliminary proceeding, which did not have the effect of a final decree upon the rights of the parties. Pub. St. 1901, c. 200, § 1; Parker v. Gregg, 23 N. H. 416, 423. The plaintiff acquired no right to have the partition made by a committee composed of unsuitable men; and, if the revocation had been made when

the defendants first made their objection, it is apparent that the rights of the parties would have been amply protected. The fact, however, that the court did not see fit to pass upon the matter at that time, but, in the exercise of its discretion in effect postponed its consideration until after the return of the committee's report, did not as a matter of law amount to a waiver of the defendants' objection seasonably made. Nor was the nonaction of the court equivalent to an order overruling the objection. The decision of the question thus raised was merely held in abeyance; and, when the objection was finally sustained and the appointment revoked, the legal effect of the order of revocation was the same as though it had been made in the first instance. The proceedings before the committee and its report, therefore, necessarily became invalid.

This result is reached upon the assumption that the facts set forth in the appeal are true. As the case is understood, however, the defendants' motion to dismiss the appeal presents merely the question of the legal sufficiency of the reasons assigned for the appeal, which was taken from the decree finally made setting aside the report, and not from the previous action of the court. A hearing in the superior court is necessary to determine the truthfulness of the allegations. Whether the division recommended by the committee was just and equitable will become immaterial, if it should appear that the committee was not such a committee as the parties were legally entitled to. The other reasons of appeal do not appear to be important. Exceptions sustained. All concurred.

(100 Me. 578) NORTHWESTERN MUT. LIFE INS. CO. v. COLLAMORE et al. (Supreme Judicial Court of Maine. Dec. 23, 1905.)

1. GIFTS-INTER VIVOS OR CAUSA MORTISWHAT CONSTITUTES.

To constitute a gift inter vivos or causa mortis, there must be a transfer of possession under circumstances indicating an intention thereby to at once transfer title as well as possession irrevocably. Inclosing the article in a sealed envelope, and handing the package to another with instructions to keep, but not to open it until after the death of the depositor, does not indicate such intention.

[Ed. Note. For cases in point, see vol. 24, Cent. Dig. Gifts, §§ 28-42, 122–132.]

2. TRUST-DECLARATION-SUFFICIENCY.

A declaration of trust, to be effective, must be explicit, absolute, and complete, vesting the equitable title in the beneficiary at once, though the transfer of the legal title may be deferred till the happening of some event sure to happen, as the death of the declarant. If the transfer of the legal title is to be contingent on an event which, though expected, may not happen, the declaration is ineffective. Thus a declaration made in contemplation of suicide, and to direct the disposition of the property after death by suicide, is ineffectual, since the intention to commit suicide may be abandoned.

8. SAME EVIDENCE.

The evidence in this case does not satisfy the court that the property in the insurance policy in question was effectively transferred, either by delivery or by a declaration of trust. (Official.)

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

་

Bill by the Northwestern Mutual Life Insurance Company against Charles H. Collamore and others. Case reported. Decree in favor of Josie Collamore, defendant.

Bill of interpleader to determine whether the amount of a life insurance policy, issued by the plaintiff company to Ellison C. Collamore, should be paid to his estate, he being deceased, or to his brother, Charles H. Collamore. After the death of the said Ellison C. Collamore, the said Charles H. Collamore claimed that payment of the insurance policy should be made to him, alleging that the policy had been assigned to him by the deceased in his lifetime. Thereupon the said Josie Collamore, widow of said deceased, who was afterwards appointed his administratrix, brought a bill in equity to have the plaintiff enjoined from paying said insurance policy to said Charles H. Collamore pending the determination of the bill and decree there

on.

Agreed Statement.

in reserving to himself the right to make choice of options contained in the policy, and to receive the whole benefit thereof himself, without the consent of the assignee; and, in event of the death of the assignee before the policy became payable on account of the death of the insured, the same was to be payable to his estate.

This policy and assignment was in the possession of the insured on January 6, 1904, on which date he delivered a sealed envelope to Charles H. Collamore, which it finally turned out contained the insurance policy and assignment, with some other papers; but the contents of the envelope was unknown to Charles H. Collamore until after the death of the insured.

The insured died by his own hand on March 16, 1904. Just prior to committing suicide the insured sent a letter to Charles H. Collamore, which was received after his death, in an envelope postmarked March 16th, and which letter read as follows:

"Rockport, Feb. 9, 1904.

"Well, Charles, as I shall not see you again I will send you this receipt, you will have it, show, and Joe cannot make enny trouble about it. I told Geneva that I would fix my board bill on that note; I have fixed it by making the interest four per cent, and I thought that would satisfy you for what trouble and my board, and the trouble while I was with you. You will have the money to pay this note when you collect the Insurance, but don't pay it too fast, for they will spend it if you do; and you can take the interest on some of the other money and pay them their interest. You will know what I

about the other money when you open the envelope I gave you. Don't wait too long before you attend to it either. It is no need of me telling you my troubles for it will do you no good or me either, but I think that I am tired of living, and have been for the past three years, I cannot stand and strain enny longer, so I hope you will do all you can for Harry. I have fixed my things as I thought best for you and Harry and our sister, and I hope you will do what I have asked you to do, for I have left it as I thought best. I shall take a dose of poison which I have had ready for a long time, and hoping I will meet you all in a world where trouble never comes, Good bye. "From your brother, "E. C. Collamore, "Rockport, Maine."

In the sealed envelope, which after receiving the above Charles H. Collamore opened, was contained the two following letters, one of them in a smaller envelope:

"Rockport, Oct. 13, 1903. "To Charles H. Collamore from E. C. Colla

your sister. Take Five Hundred Dollars for yourself; Five Hundred Dollars for Harry P. Collamore and the reast for your sister, Syreno A. Andrews. I want you to take care of Harry's until he is 17 years old before you give him enny of it; then I want you to give it to him, or put it where he can get it, to finish his schooling with; don't give it to all at one time so Joe can get it and go through with it. I want you to help him all you can; he is not to blame for what he has done, his mother is to blame for it all. You will have to use your own judgment about Syreno's money; you will have to let her have a little at a time when she needs it the most. You will have to get her plaster for her when I am gone. Be shure and keep enought of her money to bury her when she dies, for they will not have enough in the family. If there is enny of her money left when she dies you divide it between yourself and Harry. I have fixed your note so it will be four per cent interest. This is the last favor I shall have to ask of you and I want you to have me buried with mother, at West Rocksport. "E. C. Collamore." "Rockport, Jan. 31, 1904.

"Charles:

"You will notify C. R. Dunton, of Bangor Exchange, of my death, for he is the Insurance Agent for the North Western, and will see that you get the money that will fall due there. You use it as I have asked you to in the other letter I have left you. Be shure and do the best you can for Harry, and God will bless you.

"Good bye, from your brother,

"E. C. Collamore." Instructions in relation to the envelope, as given orally to Charles H. Collamore, were at different times said by him to have been as follows:

"You keep it, and, if anything happens to me, you open it." And: "Keep that; don't open it unless something happens to me."

This was all of the communication made at the time of the delivery of the envelope, and nothing further was said about the envelope, or in relation to property matters, after the delivery.

Other envelopes had previously been left in a similar way; but the contents of envelopes so left were never known to Charles H. Collamore and might or might not have contained the insurance policy and assignment Charles H. Collamore had received; but he drew the inference that said packages did contain these papers among other things, but no direct statement to that effect was made, and the packages held previously were returned to the insured.

Prior to the death of the insured's mother in 1899, the insured had been in the habit of giving her similar matters to keep for him.

The insured was not indebted to said Charles H. Collamore, but, on the other hand, Charles H. Collamore was indebted to his brother for borrowed money, and is still indebted to his estate; he having given his note therefor.

The assignment had no relation to any business transaction between the brothers.

Josie Collamore, the widow of Ellison C. Collamore, was appointed administrator of his estate. Charles H. Collamore claims the insurance under the assignment in question. Josie Collamore claims to collect the same as administratrix, to be disposed of as provided by statute.

On the bill decree was made that the money should be paid into court and the defendants were ordered to interplead. Decree was complied with, and each of the defendants in the bill of interpleader make answer, setting up their respective claims upon the facts above stated.

Argued before EMERY, WHITEHOUSE, STROUT, POWERS, PEABODY, and SPEAR, JJ.

L. F. Starrett, for plaintiff. L. M. Staples, for defendant Charles H. Collamore. C. E. & A. S. Littlefield, for defendant administratrix.

EMERY, J. The question submitted on this bill of interpleader is whether the amount of a life insurance policy, issued by the plaintiff company to Ellison C. Collamore, is payable to his estate, he now being deceased, or to his brother, Charles H. Collamore. The policy is admittedly payable to his estate, unless the court shall find from the agreed statement of facts that the legal or equitable title to it was effectually transferred by him before his death to his brother, the other claimant.

There certainly does not appear to have been any such delivery of the instrument of assignment, or of the policy itself, to the brother, as was necessary to constitute a transfer of any title, legal or equitable. Although he placed them in the hands of his brother, there was nothing said or done indicating that it was an irrevocable gift, or intended as such. The papers were in a sealed envelope. No statement was made of what the envelope contained, or that the contents were a gift. He simply told his brother to keep it, and not to open it unless something happened to him. The brother did not know the contents of the envelope until he opened it after the death of Ellison. Other envelopes had previously been left by Ellison with the brother in a similar way and had been taken back, but the contents of those envelopes are unknown. Prior to his mother's death in 1899, Ellison had been in the habit of giving her similar packages to keep for him.

All that can be reasonably inferred from the agreed statement is that Ellison intrusted