*1 v. BIBLE 139 SOCIETY. June, 1889.] been held that such an act It bas impairs tenancy.” ciple joint" ; Dennett, N. H. 109 v. v. 6 Stevenson Miller no right. Cof ; ; Lim. 360 3 Tiedeman 150 Cool. Const. n. Lim. 20 N. H. ferin, 116, 117; Power, Hare Const. Law 823-829. Whether Police ss. L., 28, it ss. is not view is correct Retro. (Wade 179-185) this case to For exact limitation inquire. necessary of statutes retroactive upon equitable inequitable operation it would seem that remedies and want there remedy, rights, test be some must comprehensive prescribed by legal principle defined or established in the has not been clearly generally authorities. was not the act of entireties abolished Tenancy Remick, it v. 47 N. H. 226. The whether is question Wentworth statute married women to hold abolished enabling unmarried, on which there is a difference of were 223, 219, Stewart, Stebbins, v. 141 Mass. Baker opinion (Pray Cont., 442, 242, 5,n. Kel. s. Kan. Tiedeman Real s. 7), 40 Prop., Clark, been settled in this state the affirmative. Clark v. has from common 56 H. 105. But N. usage, understanding, and unconstitutional character of retrospective unjust generally laws, arises a fair inference fact that a statute designed by for future unless a inten cases legislature only, retrospective declared or The act of 1860 tion implied. expressly necessarily L., its first is consistent with a section (G. 2342) (c. 1) should be after c. s. applied only property acquired effect; took and therefore it is not law applicable convey mother in ance made to the father and 1839. Atherton plaintiff’s 205; McQuesten, Q. N. H. 46 L. R. 6 B. 23— Eyre, Phillips 812; 27; Lim. ; L., Cool. Const. Hare Const. Law Wade Retro.

ss. 34—50. After her death in 1881 the whole was her hus farm at his band’s death in by survivorship; passed by of the defendants. his will two

Case discharged. did sit: the others concurred. Smith,

MERRIMACK. Society & Adm’r, &

Kimball, v. Bible a. a. A testator’s remainder power dispose his life expectant upon estate,” is executed his devise of described his will as “my from when evidence that he used appears competent those words as a of all he had description of. dispose KIMBALL v. BIBLE SOCIETY. circumstances, what shall be taken administered some Under be a of different estates may of the administrators each *2 convenience. the testator’s real and estate to his wife personal all

Under will devising “ life, and her natural used as she shall see managed by her during be. executrix, and, fit,” after out of “whatever her sole bequests appointing decease,” her B one half of after A giving remain may “ my property “ half balance,” that the other shall be disposed and providing n estate, choose,” the testator’s increased as she shall beloved wife by my at death and remaining unexpended after his accruing by income of without death, regard fund bé disposed his widow’s single and interest. between principal distinction of a will on suit, an for the construction executor In equity brought and an between dispute legatee to property which depends right to the is not entitled heir, payment does not prevail claimant who estate. or counsel fees out his taxable costs Kimball, of William administrator John Equity, Bill Daniels, of Olive T. Richardson, Richardson, H. administrator and Albert William, the court the direction of to obtain widow of the New defendants are of their duties. The for the performance Acad- Andover the trustees Bible Phillips Hampshire Society, and of Mr. Richardson nieces). and heirs (his nephews emy, Facts agreed. 1869, 1, a will dated November Mr. Richardson died leaving 13, 1861. March [Copy bis will.] wife, T. FIRST, unto beloved Olive I and my bequeath give life, her Richardson, natural and real all during my personal see fit. And I her as she shall hereby to be used and managed by this last Will and Testament. executrix of her sole my my

appoint remain of after ‘‘LASTLY, And whatever my property may decease, be Five Hundred Dollars it is will that given her my and One Hundred Dollars Horace P. blind (my nephew), Dudley Marden, Marden, wn, Fran cesto son of Richmond to Williani half of it be to the New H., that one N. and of the balance the other half to be and disposed Bible Society Hampshire choose.” wife as she shall beloved my 15, 1885, a will dated Mrs. Richardson died September leaving 28, dated with a codicil January January [Copy will.] Richardson, in the of Hills- “I, Manchester, T. county Olive of sound state of New Hampshire, being possessed borough mind and last Will and make, and declare do my publish perfect memory, herein of all Testament, and dispose my worldly to wit: in manner following, KIMBALL v. BIBLE SOCIETY. HI executor, “FIRST, named, order direct I hereinafter my debts and funeral soon as all be after my just charges, may decease, and erect suitable monument at my grave. my “ SECOND, niece, I unto Susan A. give bequeath my Batchelder, dollars, the sum three hundred to her paid as- be convenient after decease: And I soon and do also may my give unto said Batchelder bedstead, Susan A. one bequeath same, all the and such bedding necessary belonging articles select, she of furniture as ware. including my crockery executor, THIRD, I unto said bequeath give my sum trust, hundred of two dollars said sum to principal him, invested and the interest thereof' to be safely by late expended him in of the lot of land owned care taking by myself my Richardson, husband, William Valley said Cemetery the whole of the interest Manchester. dollars is not needed in If of said two hundred *3 care of said lot of land in the taking judg- he is to executor, ment said balance of said interest my into the of said city Missionary treasury Society city Manchester. “LASTLY, devise, I and unto the bequeath Trustees give, Massachusetts, of Andover their Phillips office and successors in Academy forever, rest, all the residue and remainder assigns of all estate, mixed, both real and wherever found my personal, and trust, themselves, however situate to hold in their successors in and The office forever. of said principal assigns and property estate to be invested said trustees and their successors, safely by and the income and interest thereof is to be under expended their use benefit of direction for the and the Theological Seminary their under care. B. “And I do Clark of said appoint Manchester, hereby Joseph Testament, of this last and

sole executor all former wills Will my hereby revoking me made.” by codicil, she revoked the of $300 to By legacy Susan A. Batchelder, Harriet her gave Twombley wearing to- apparel, her ware, Lucia Bennett all and China glass, crockery, and to her brass clock. Julia Russell large of tlie second and fourth items of the [Copy codicil.] doI unto give “SECOND. hereby bequeath Trustees- Massachusetts, of Andover their Phillips Academy successors aforesaid sum of three in office hundred assigns, dollars, the same mentioned in said object my will, rel- therein made to said institution. ative bequest “FOURTH, rest, As to the residue and remainder of all my furniture, bed and household carpets, including I bedding. give- ‘ the Manchester the same unto "Women’s bequeath Aid ’ Manchester, I of said and do Relief Society authorize hereby my to deliver to said all of said executor said furniture society as soon decease.” after as may practicable my BIBLE SOCIETY. $48,645.09, estate was at and Mrs. Mr. Richardson’s appraised and its same Richai’dson’s pro- (being substantially $51,250.88. at had no at.the time of their They ceeds) codicil, At the dates of her will and she had no real marriage. the interest devised to her him. In the estate except by appraisal court, her to the of his returned brass clock probate by to Julia Russell was inventoried which she afterwards bequeathed his that this clock His heirs reserve the $10 at property. right prove, can, was never his. Cross, D. Smith and trustees of Acad- Jeremiah Phillips Mrs. Richardson’s will is an execution of the power given emy. that, all, It must be her her husband. remembered after by every in exercise of a but It is technically, will is power, generally. to a man direct a become what shall given by legislature power ; of his after his death. It is a mere power law, much is it a so indeed power according English was a time when a man did not there possess power; ‘devise,’ . . to him statute. When we of a we speak devise which is the exercise of a mean a to a man Freme power disposition given either the act of some parliament person.” Clement, L. Div. R. 18 Ch. The fair infer is, use of ence from the this will that the tes general language intended to execute both tatrix one conferred powers, —the one husband as well conferred -by legislature. is not whether a learned and acute would have lawyer embraced in the conferred an indi of man spoken but vidual as kind would whether the property,” “my great majority *4 to include it under that Here is likely description. distinction so fine a technical that have legal lawyers many ques existence, tioned its and some have rejected judges altogether. Durham, 316; 557; ; 12 Lea 2 Turner v. Baxter 7 188 Yerger 251; Cole, ; Kendall, Va. Kendall v. N. Cole 79 36 J. 91 Eq. “ Culver, 403, 34 Conn. 404. It Hull is hard to distinguish for life with between absolute enjoyment power disposition, In the the absolute language, may say, to know and substance of Lord ownership.” Wynford's we It is difficult sometimes even for lawyers cases, the law in certain are to apply yet you that this woman knew that she was a tenant for poor suppose only with a and that life words were power appointment, special to execute the One of the most eminent modern power. necessary “ said has that to the common English judges apprehension “ is mankind” a the same as power exactly general thing property, has for been treated James, as many purposes property.” 18, R., 16 Jessel, L. In re Van Ch. Div. 31. Hagan, So M. “ is that for almost all said general power purposes equivalent L. R. 16 Ch. Div. 32. And in another case the property.” “ the said that same mankind general intention was the judge BIBLE SOCIETY. 143 Act,” doctrine, which reverses the old reason of the Wills in that embraced shall general property power pass provides by the donor’s L. devise R. 12 Ch. Div. a 674. property. testatrix, who In a case where a had a power disposal, “ house,” house of a embraced power spoke J., said, my Story, is that which would language precisely ordinarily —“ be used donee of the whole power dispose absolutely without interest in the although property, any property.” Blagge “ 426, sum,” j., Miles, Benio, 453. This said C. Story sense, not her in a technical or differed . though property which was absolutely but little from hers. It property that in of it she should singular attempting dispose regard as her it as of the same nature own Y.N. 390. property.” entitled for life to the income She was of all the residue of his ; real and estate and a was to her absolute personal moiety n deed or her will attested two disposal by any writing, mode, witnesses. She was it limited as to and as to the objects; a latitude as one could have. It is a little ample any hard to that it was not her estate. How could attempt explain she had it more than life, have enjoyment during to whatever whatever power manner disposing person with the small she addition of two witnesses ? pleased, By will she all her effects. It is hard to gives that, say she meant to and not include using expression, distinguish this, which is as hers as of her absolutely property.” Standen, Standen v. Jr. Ves. The reasonable view to take of the words used in is, this case testatrix meant to to her give residuary legatees larg- est interest she could she had give everything power dispose It is more of. reasonable to that she intended that all the suppose which she had under dispose pass .of will, clause of her than that she intended to residuary let this to her husband’s collateral heirs as undevised go estate. The idea that there must be not an intention to dispose embraced but also to of it power, under dispose Powers, his work on utterly rejected power, by Sugden ed., vol. 7th *421. The learned author the in- p. says, —“If collected,

tention to can be it will under pass pass the donee it would work power, although supposed conflict; force of his interest. There is no he intends the prop- and thinks it, he has all the interest in erty pass, whereas he *5 has The intention and power. the really will governs, powTer See, also, the on Farwell Powers support disposition.” 156. If the testatrix treated the whole of the within power own, as her and as of her estate, it will She pass. treat as one mass over which she naturally had everything both the power disposition, the income including savings over which she had full principal power appointment, (cid:127)

144 KIMBALL BIBLE SOCIETY. “ that, is no fund. There so in one difficulty aggregate the testatrix was saying owner, as shall take effect far' as gift and, no the owner so far she had part, disposition by under the that it shall to that extent except power, operate right A testatrix same an execution of as clause, power.” may, by and she has her own that over which dispose 277, 282, 10 N. J. 283. She appointment. Eq. simply power thus all that she had either power give give, by authority interest. or by 267, v. N. 52 H. The rule is arbi Burleigh Clough, applied technical, has been generally productive great trary injustice. “ I am not sure the rule does not the court to act oblige have intention times what been the nine might against probably “ Horton, 392, v. 7 Eldon, in Ves. 399. In in ten.” Lord Nannock I think the intention was to own private opinion, give my ¿6100, of; which the testatrix had but I do dispose power I declare the to have been conceive that executed, could judicially power even if the result of an verify inquiry repre is as to the state of her sentation that made Sir Wm. property.” “ Tucker, 537, 533, Grant, R., 2 Mer. M. v. 538. Jones ques from the distinction which has been tion in this case arises adopted between the settled in courts of equity power disposing and the technical a distinction which right property, which, eminent as Lord Blclon has been judges, regretted observed, to be in order to further has adopted although professed testator, cases out ten the intention of the in nine defeats that Leach, R., Turner, M. & John Sir Hughes object.” Myl. “ 666, the intention of the testatrix K. 688. I fear bemay R., C. C. on defeated decision.” Sir M. Pepys, rehearing by my felt at If we had ourselves to decide' Turner. Hughes liberty what we believed to be the intent according case testator, such evidence as satisfies courts of on shown justice wills, have so our we should not long delayed judgment.” ordinary Nowell Roake, must, 503. “I almost Bing. although it, I decide what ashamed against firmly say sincerely testatrix, to have been the intention believe of power bound, however, not been exercised. I a.m has appointment authorities; I cannot and I must so decide.” help myself, C., Thorne, Bruce, Davies v. V. Jur. Knight n cases, it not to be struck with In impossible reviewing where the intention has the number of the instances been defeated Powers, the rule from property.” Sug. distinguishing 338; 401. “I concur in the that it 8th ed. ed. view 7th ‘very not to re-create distinctions between desirable which to common of mankind is apprehension general power, same and has for exactly thing property, many purposes ” James, J., L. L. been treated as In re Van R. Hagan, property.’ 18, 33. The doctrine held 16 Ch. Div. formerly English *6 KIMBALL BIBLE 145 SOCIETY. reversed, was so far are con completely courts cerned, general powers 26, Vict., Wills Act 1 c. s. 27), provides, by (St. substance, 1, 1838, that in wills in made after January real described in devises of bequests personal manner, personal real are be construed as a general including have estate which testator may appoint any objects a he think unless intention proper, contrary appears 26, c. Viet., this statute to 1 s. all these will. “By [referring 27] and subtle distinctions in relation the execution of refined in are now and the doctrine has at swept away England, powers last settled down to what would seem to be the country sense, dictate of common unaffected technical niceties.” Story, Miles, 426, J., in 1 note v. Sto. 458. “I feel con Blagge condemned, that we not to follow rule thus fident ought which has been abolished in the whose courts it country Denio, Hicks, 383, established.” C. v. 33 N. Y. White 407. “ We from cannot refrain our extreme dissatisfaction expressing supposed Burleigh Clough, with this condition law.” v. H.N. this The refinements and subtleties which distinction leads . the inconvenience and great perplexing. injustice to which doctrine rise have been a constant English sub- gave of remark who it.” This ject the of effectuate. doctrine of applied judges is “a courts rule construction in a English likely, majority cases, to defeat the intention it is to ascertain designed of the testator, the intention Seeking rule statute to us the wiser and English safer appears rule.” Meredith, v. Amory 7 Allen 397-400. “In Amory Meredith, 7 Allen it was held that the rule adopted by English courts of whether equity, determining general power of dis- was executed devise posing by general bequest of testator, was not a sound rule construction; that it had been found in a of of cases to defeat large majority instead testator, intent of to ascertain and furthering make effect- ual which the chief the courts in duty the lan- interpreting wills; different rule must guage be applied.” Ware, 263, 266, 267; Willard 10 Allen Bangs Smith, 98 270; Wilmer, Mass. Sewall v. 132 Mass. 131.” If we were at to discard certain rules which liberty have arbitrary been estab- the courts in lished this and and followed England, extent great the intention of ascertain the donee of country, a power, without reference to rules on the simply inquire, subject, what was Mrs. answer, intention in deed, Campbell’s making but one could we be made. We imagine, might safely say, Lord said in the House of Lords when Iioak cases were Winford & before Dow Clark that nine hundred 451), (1 ninety-nine out of a thoúsand on deed, persons reading say, that did intend to a fee We grantor convey simple. might further, go YOL. LXY. KIMBALL v. BIBLE SOCIETY. *7 of the thousand would come one one and to that the remaining say observed, that it be further conclusion. And the same might rules, were bad the rules Lord suggestion Winford’s some of them were the British by parliament, recognized 81, Viet., 26, 1 e. 64 Mo. abolished s. 27.” by a rule on this established cases “The English subject early to defeat the intention so which operated grantors frequently it, from accom a decided and testators as to departure require most of its unsoundness criticisms with frequent panied . . has . . strictness of this rule . learned judges. cases, there is now the modern been everywhere repudiated to a the courts adopt principle manifested disposition growing of such and more to the execution just more liberal powers, intention of the in the ascertainment relating certain supposed 82 Ala. 596. For v. their execution.” Gindrat Company, from the old En

authorities, illustrating depart tendency 357, 366-368; doctrine, v. 109 S. see U. Warner Company, glish 136; C., Am. 92 Ill. 34 Rep. Bige v. 515 — S. Funk Eggleston, note, 1062, ; note, (n. s. Holmes’s a) (13th 2 Sto. ed.) low’s 4 Kent Eq. Hicks, v. 33 N. Y. 383. 335 White Com. ed.) (n. 1); (12th Hibbard, heirs of Mr. Richardson. B. Where a C. A.E. $ will, it exercised will not be exe is which may given power in the will to the a reference or to the there is power unless cuted would be it; the will without inoperative or unless subject it to execute became and the intention clear of the aid power, 267; N. H. 2 52 Jarm. Wills Burleigh Clough, manifest. ed., 1 vol. 543 5 — 2d Am. Foos n. ,p. [628]; J. ed.) (N. 345; Pa. 301; 64 St. In re Bingham’s Md. Appeal, 55 Scarf, 44; Breintnall, 38 Co., Meeker J. 13 Phila. Eq. T. N. Phila. clause, claim, the trustees under which is in 345. The residuary been the testatrix had no it would have had what respect every It not her own. over contains of disposition power nothing, or the will the codicil contain does neither anything, or even be known testatrix suspected from which it'might had attempted over to exercise power disposition property interpre rules of all known another. According belonging tation, tees, hers, estate, and that Was to the trus only was her it her its it language beyond is by forcing only words treating containing only by natural meaning, it, meant she to be found supposing nowhere that she intended to only by did imagining she say, something state to her husband’s contrary express of her dispose that the construction contended for that it was property, ment it. The can be mode of exer trustees put upon on behalf obvious to a to a lawyer per appointment power cising —also is not a who refer understanding lawyer is, son of common — KIMBALL BIBLE SOCIETY. it, or to the at power property subject plain language, least in some of language. kin$ rule, that, It execution of a the donee power, it, must show that he means to either execute power clearly it; reference to the or to the for if power by-a he subject-matter leaves uncertain whether act done in execution of the not, it will not be to be construed an execution of the power ed., s. Sto. 1062 a. Am. Pow. power.” Eq., Sug. (3d 7th London n. “Three classes cases have ed.) been [*356]. held be sufficient demonstrations of an intention to execute a 1. Where there has been some reference to the power: the instrument of execution. 2. Where there has been a reference *8 to the which was the on which it was to be property, subject executed. 3. Where the instrument of execution would have no whatever, anas execution of the operation Where, . . except power. to, however, the is not referred the power com- property mentioned, in it be as to must so that prised manifest the disposi- it; tion was intended to act as shows to the over donee must do such operate an he has in the that view of he which has a thing power . . It is settled a . that mere dispose. devise firmly general terms, or however unlimited in will not bequest, the comprehend of the unless it to refer the or to the subject power subject, power itself, or to vested in the testator. . generally power . any rule, Lord stated the true Alvanley established Andrews v. be, JSmmot, to to execute a there must power be a direct it, reference to or a clear reference to the or subject, something or, will, it, the face of the of some upon which independent circumstance shows the testator could not have made that disposition without intended to of having subject the comprehend power.” 414, 416, Pow. 418. If the will be Sug. made without reference to the as an any power, operates appointment under it cannot have without power, provided operation the power. intent must be so clear that no other reasonable intent can be will; to the and if the will does not refer to imputed a or power, it, to the if the words of the will subject be satisfied without the intent to execute the an intention to execute then, supposing power, unless be it is power expressed, no clearly exe- it.” 4 Kent Com. cution 335. “ A married woman having power leaseholds and appoint stock, her will executed and attested as required by power, it, but not to her husband the referring gives whole of her both real and and whatever property personal, she might possess Held, at her decease. not be an execution of the power.” Lovell v. 3 Sim. 276. Knight, to effect the “Though execution of a direct will reference to the power by is not power necessary, the intention must it,of distinctly point as if subject some- is included which testator had not thing otherwise than under of unless will power, to it applied BIBLE SOCIETY. Aburrow, 8 Ves. 609. is a Bennett “It wholly inoperative.” will, terms, rule,-that however in a no comprehensive, settled real every other'species sufficient pass although personal, unless demonstrate that will execute power, will and intended his contemplation, had power testator no devise it......But bequest to execute nor a real personal, general residuary a testator’s all a sufficient clause, of themselves power [execution a] Will, 1 Pars. “A tes- S. Cas. 436. Eq. Pepper’s appointment.” trust, the to Z in income to be to the testa- fund paid tator gave life, and on her fund to during her decease whole widow tor’s widow, not, survive the he should he Z if should go he his last will The will then appoint. such person to Z. Z died before the the residue

gave son, widow, to his leaving gave testator’s but in will Johnson Held, other manner making appointment. no any execution Z was power appointment.” Stanton, 30 Conn. 297. To constitute the execution will, there must reference appointment by aof power it, unless the intention man- itself subject the power that the will would remain without the fact inoperative from ifest the saction Hollister or is so demonstrated that the tran- clearly aid power, fairly susceptible interpretation.” Shaw, 46 Conn. the intention to execute must be “I agree *9 clear, so that the transaction is not fairly susceptible apparent doubtful, is If under cir- all the .it interpretation. of any will cumstances, that doubt it from deemed then prevent being Miles, 1 Sto. Blagge power.” Story, execution an “ rule of construction referred before rigid While 446. instances, have, intention, run counter in some to the actual to may of other to the rules application sometimes happens which wills, we do not of to the full appreciate objection construction extent otherwise such is : subject have rules urged. Upon necessary at sea. The execution of a we absolutely matter, but is out an of the usual course of ordinary not is power act; of on the donee to do is incumbent It power things. follow; done, of certain consequences importance with the of law, to be accordance that analogies seem under the should be claim held appointment who show those it was made. In a of large cases tes- majority satisfactorily wills, of their own estate. These only em- dispose tators brace execution powers, exceptions also rule. therefor-e, testator will, leaves a When, having property dispos- manner, without usual reference to a any it in power, ing of other inference, in the absence proof, will the one but, as it purports, exceptions, disposes If the the testator. were extended refer estate proper BIBLE SOCIETY. 34=9 to and a matter so remarkable as the execution of a accomplish intended to make the naturally -would power, be appointment Growan,J., aud distinct from the other Mc separate parts.” Bilderback v. 14 S. Boyce, C. Don, C. J. his will Mr. Richardson his wife By all gave “ life, and real estate her natural to be used and personal during “ her as she shall fit.” see Out whatever managed by decease,” remain of after her he two my gave legacies. ” “ Of the bahfnce he one half to New Bible gave Hampshire and left tbe other half to be Society, wife as she shall choose.” The beloved disposed by my whether her question'is, power of “the other half” was executed in her will dispose made nine after his death. After certain slie years bequests, gives Andover, trustees Massachusetts, Phillips for the academy, care, use of the rest, under their theological seminary residue, and remainder of all estate.” Does the evi- my competent ” dence show that she understood “all included all that my her husband left “to be beloved wife as she disposed by my

shall choose”? Did she mean exercise all her disposing power? There is no occasion to whether her will contains an inquire or distinct reference to a express remainder expectant upon termination of a life or to a power appointment, mind, whether she bad in exercise, and intended to tech- from the nically an absolute distinguished riglit proprietor of his by will. Such an dispose stituted for the sub- cannot be inquiry whether her will is of a expression to exercise all tbe slie bad of right who should determining after her decease. proprietors All, all, tbe in which nearly sbe bad interest tbe sixteen of her widowhood during years was tbe estate and the of the estate time, left proceeds being husband. During whole, tenant for life of tbe and sole executrix, she used and tlie whole as if it were managed hers. It does not appear she was so familiar with views of lier husband’s aswill fee, understand Ibe difference between a and her rights holding, as she saw using, managing fit her life and during *10 who should have it deciding afterwards. A so legal presumption which, fact as that for some contrary purposes, to imputes full of the law, has no everybody that knowledge to show tendency ” “ aas matter of fact the testatrix used the words estate my sense, in a strict to exclude the intending over which she had a testator’s and which her power, use rights were more than those an tenant for life. That ordinary was hers for all the for which she seems purposes have wanted it. It was hers to such an extent and such a sense practical that she would be it as hers likely and regard call it hers. Naturally, and in accordance with the use common she would language, v. BIBLE SOCIETY. dur- as hers which were hers of lands and and write goods

speak; fit, she and used and saw life, to be managed' her natural ing the inheritance unlimited of which was her control. subject a distinction if had ever maintained she recognized Even from her to heirs that would her those go between possessions will, hers for dis- those that were and and enjoyment without ” “ that estate she not follow it would necessarily my posal, There is reason of those classes property. one meant doubt, her believe, that she exercised testa- reason to and no distinction; that of that knowledge h«r regardless mentary powers indistinct; and she did not was that she had of it (if any) slight ” her with estate waiving large all my say in no she used those words narrow and that disposing right; sense. technical, their but in popular, comprehensive life with an unqualified power appointing “An estate . . How can court comprehends everything. inheritance her can interest will that she By it is appoint? that only by say this unlimited can she her life estate. By she can convey whole fee is thus equitable subject the inheritance. appoint 139; Street, 16 Ves. to her present disposition.” Barford It N. that Mrs. Rich 15 H. 298. probable v. Cushing, Johnson as to the extent some under misapprehension labored ardson of her over character appointing power title 'and1 her what did not ence from legal hers, and that the scrivener was not strictly absolutely himself on these The infer time to inform take subjects. is, did understand it to be that she neces the will an estate of remainder and between or useful distinguish sary such an or between over an unlimited power direct, did otherwise her heirs she would go on her order. to them would go that she was presumption will were construed upon If the law, there be a difficulty inferring in the learned or was satisfied with her of her legal position, she was ignorant ” as an of a resolution to estate expression of all my bequest abstain of her exercise of a large part from the testamentary interest, her actual and rightful posses Her proprietary power. sion, her use, right legatees appointing management, in which she used the sense the words evidence of are competent ” this, clause. and all the com residuary Upon “my case, the evidence offered hus evidence petent band’s than otherwise that she intended heirs, is more probable of whatever her entire testamentary authority, exercise is not be. And her intention defeated natures might nature or construction, of which general operation the rule 267, 281, 52 N. H. with extreme Clough, in Burleigh regarded evidence, intention, Her proved competent dissatisfaction. Meredith, 397, 398; Allen Rice Society, Amory her will. 197-203; Sanborn, 631, 643; 62 N. H. Sanborn v. N. H. *11 BIBLE SOCIETY. N. Kennard, 310. Her Kennard H. to tlie bequest of tlie was an exercise her seminary disposing power given by as well that derived from the statute. husband as estate, In her whole as one management and income were investment without mingled by principal observance of the difference between a life and estate a remainder. administrator, Daniels, Kimball, her and administrator her husband, what each shall join administer. asking circumstances, Under seems to abe of con- question Richardson, to Mr. venience. Notes and held his now payable administrator, collected the holder. may No conveniently reason Daniels should take for and account appears why per- Richardson, sonal the name of Mrs. and property standing administration, what he needs for the of his Kimball and expenses for Marden, Mr. Richardson to and legacies given by Dudley, will, the Bible The administrators of course, act in con- Society. cert, full with each other’s knowledge approval proceedings, consultation with the in interest. upon parties Clark, did not sit: the others concurred. decision, After announcement foregoing whether income Mr. Richardson’s presented after his death widow, his accruing expended by passed as or her will whether it ais property, part described in his will as whatever remain of may my property after her decease.” Cross,

Jeremiah Smith D. for the trustees of Phillips Academy. Streeter,

Chase New Bible Hampshire Society. $ Dok, C. J. A devise of “to forA his (or during) ” life is the form of common of a life estate. legal gift And its is, technical income A’s ordinary if meaning property, life, with the is to be severed mingled principal during after his death to his heirs or But delivery legatees. there bemay fee; life estate well qualified qualified terms are not understood testators in a technical always sense. How- ever the intention clear the life tenant have all the may it, income if he use needs or alienate it if he chooses may to do so, evidence prove intention that slight enough so much it as lie neither nor shall be spends conveys considered a of which it is increase. unexpended Even it is absence no phrases, means certain modifying all testators understand that such increase to the heirs go *12 v. BIBLE SOCIETY. KIMBALL [Merrimack: terms, the tenant life. abridging of Enlarging description legatees the life the usual of with in connection used and as evidence of kind qualifi- degree to be weighed duly the testator. intended cation “is, I and Mr. Richardson’s will bequeath give The language Richardson, wife, and Olive T. my personal beloved unto my life, used her natural to be and her real estate managed during her sole executrix. And I appoint she shall see fit. my hereby after her remain of . whatever my And . . to $500 be Horace P. decease, will that it is Dudley my . . $100 and to William Marden and blind nephew), (my

n the New one half it be given Hampshire the balance that be beloved half disposed Bible and other my Society was 'While her interest as devisee a life as she shall choose.” wife more, and in sense, it some certain was respects estate in a less, for life. For her a technical than tenancy other respects she use the no other could purpose) (if necessary support sufficient'. whatever Of might if the income was principal, remain of devise one decease, $600, less she could after her his heirs; but none of balance was half to her g’o his The direction that whole them as her intestate property. “ fit,” as she shall see and her to be used estate is managed remain to whatever may in relation my the provision of his decease,” to maintain show unity her after an extent that what remained at her life such her estate during the amount left should more less than by him) decease (whether to the distinction between principal without disposed regard income, all the and no did not consume and income. She to the limits her lifetime as rightful expendi- raised her was and its in- of her husband’s What remains ture. now fund, use her under management single crease accruing debts, to be expenses, bequests out of which are paid balance, half his will to one Marden. Of goes by Dudley half terms of and the other the Bible according Society, will. concurred. Clark, not sit: others did costs, their of Mr. Richardson for made heirs A motion was client, of the fund. solicitor and to be out as between paid taxed Eastman, N. for heirs Mr. G. Hibbard and G. E. A. B. de non as administrators bonis with The plaintiffs, Richardson. the other annexed, Richardson and the one of William Richardson, made the heirs of commenced action and T. Olive William chose time defendants. The Richardson plaintiffs con- of doubt and where questions difficulty when place BIBLE SOCIETY. determined, tlie distribution of a large cerning the heirs to come before the court and compelled establish any have, or claim to submit an ex decision. rights they might parte could not further plaintiffs alleged proceed safely in the court” their said trusts without advice discharge “To what are upon questions: following among entitled, said heirs-at-law said William Richardson It for the of all interest that as well parties anything?” as other *13 answered, be should and it is questions speedily only jus- tice that the costs of all solicitor as between and client should be funds, from the as must have been had the decision been paid they favorable to the heirs. “Where the testator has so his intention expressed ambiguously as to create a which makes it to come to the difficulty necessary will, court of to construction to his to remove chancery give the the costs of the are directed to be litigation difficulty, usually ; out of the estate and the residue is the paid fund for the general primary Smith, of such costs.” Smith v. 4 payment Paige “ 271. And as were and did not come into necessary parties, this volunteers, court as it seems be a case within the falling rule, that where the will of so the testator is general ambiguously as render it for the executor to take expressed the direc- proper court, tion of the construction of the will should be the costs of the to settle the necessary litigation out of the fund.” paid Wal- C., worth, King 100. “Whenever it is ren- Strong, Paige dered for the of necessary proper, determining rights parties, of the court be taken as to the opinion con- proper will, struction such for resort has been necessity occasioned the doubtful or terms the ambiguous employed testator, it is to award costs the the fund proper against residuary of the estate.” Buchanan 64 Md. 306. Lloyd, “ Reasonable costs of before the court liti parties properly as to the gate charitable entitled receive a for party legacy as to the of a remainder purposes proper disposition [or doubtful, under a where the will be out will], right allowed ; the fund.” Bliss v. Am. Bible Allen 334 Abbott Society, “ Bradstreet, 3 Allen 587. The costs all suit, in this parties to clear up of the

properly brought ambiguity to execute their language will, and to enable the trust, must, plaintiffs like administration, be borne expenses ordinary residuary assets.” Bowditch v. 99 Mass. Gray, 141. Soltyk, “ If the of a will renders doubtful to which of several ambiguity charities to which of two shall be persons] legacy paid, [or costs as between counsel and client all to a bill exec parties utors for instructions as to the of the praying disposition legacy are out the testator’s paid estate.” Deane v. Aged Women, Home 132; Colored Stearns, 111 Mass. Morse v. 131 Mass. 389. v. BIBLE SOCIETY. “ held, suit that if tbe course of a for the And it is invariably éstate, arises construc- upon of an difficulty administration will, such must be the costs occasioned tion difficulty has assets, even arisen out of the though defrayed difficulty evidence, on the defendant.” from introduced parol the executor or 1571. Where other Dan. Ch. per- (1st ed.) effect the of a will comes into provisions son carry appointed to obtain direction of the court

into a court equity instrument or the mode of construction regard' effect, such its into expense litigation, carrying provisions and as between the all the. parties attorney respects . . client, And a the whole estate. charge charged upon this as much a burden whole character is upon just settlement of necessary expense attending is, tes- rule that whenever the estate. The general undoubtedly will, of his tator a doubt in the meaning raises gen- regard it.” 1 Redf. Wills ed.) eral must (1st settling settled, 493, 494, in con- It is here [in Massachusetts] rule with analogous subjects, formity upon English client, as between that reasonable costs attorney parties, fund, such where parties properly will before the allowed out *14 court, are doubtful.” the involved and really questions thus directions are 831. “Where sought Redf. Wills,(1st ed.) trust, of of will to the a duty regard interpretation effect, the into whole its those to provisions carry appointed the the unless the is thrown upon of expense litigation Ex. and Ad. case.” Sch. 473. discloses a frivolous petitioner is so where will the of the Chancery, English By practice for it the executor as to make proper expressed ambiguously n . . all the parties take the direction of court proper of all court, the suit and whole costs of parties before the the Bell, the of estate.” out residuary portion be allowed of the cited, the Case, N. In case last 41 H. in The Dublin C. were not the fund executors for out of the costs parties moving instructions, the relators in an information and but for asking had and “'long neglected in a bill equity, plaintiffs suit,” be disallowed We it well (as and their motion might bring motion. do know the without present was) the affecting this the the court in state until before came again term, 1875, 56 N. H. 191. The in Rice Society, December term, but the motion at December were decided the main questions term, March nisi till the adjourned costs continued for was allowed, be at the motion ordered the April it was when term, 1876, was entered the decree pursuance following trial term, files: from the clerk’s from the law appears the order of out of the residue of the said society, That said executor pay hands, of dol the sum five hundred in his of Rice estate Arabella client.” In solicitor and taxed as between for costs suit lars BIBLE SOCIETY. term, Putnam, 1888, a similar the Bills v. at July adjourned term, where referred to trial made and motion was in other cases have been allowed similar costs Probably allowed. in state. is those under It will will be contended that claiming only probably construe, who the court asked to heirs which it was not disposed claim upon ground out will, costs fund. that are entitled to have their paid in doubt of a But when an executor is legacy, validity calls the and the heir into court for the legatee purpose to whom be them shall ascertaining to money paid, compels are at a we loss question, litigate perceive legatee, why not, fund, his whether successful or should have costs from the paid not, heir, whether successful or his own costs. whether, On bill in an administrator instructions equity by distributions, a correct on construction statute a quarter estate should be divided intestate’s all the defendants among some them the costs of all as between among only, parties solicitor and client ordered to come out were quarter, out of the not For the costs in whole estate. 103 Mass. 287. Bigelow Morong, it is immaterial whether present inquiry, case cited ordered be last were from paid or from the estate. fund whole However that controversy, might be, the case be an costs authority upon point as between solicitor and client ordered parties neither of the claims under paid, although will. contending parties Smith, trustees, B. Cross and Jeremiah and Chase Streeter, for N. H. Bible It is a rule in actions Society. general law, at also followed in suits of that costs are equity, allowed the successful To this rule there party. are some which the exceptions, cases render equities particular The denial a court costs either necessary. and its equity party, *15 parties, of costs occur as apportionment among frequent while its to order the successful the costs exceptions; party pay would seem to be an opponent The extraordinary exception. heirs, Richardson who their have failed in long costly litiga- tion, seek recover their ill-advised course has expenses caused incur, them to not under the rule costs, but general regulating under a somewhat remarkable thereto. exception On we can conceive of no sound for reason such ex- principle, an in not, cases this character. is This ception properly speaking, bill of in a Redf. interpleader, some though respects resemble it. may 492,493. Wills, The seek the plaintiffs construction judicial of a will. have a trust to and are They inter- perform, personally in the ested of the intention, testator’s legal accomplishment which aro bound to out when it is Hence, they ascertained. carry clearly n KIMBALL v. BIBLE SOCIETY. tbe doubt, allowed to court for cases of executors are in apply intention, in as to the casesthe instructions court testator’s proper is And it their is bound to them. give simply in but for settle- their assistance management protection, be of their trust. who interested ment parties Incidentally, may bill, of the in the estate are notified of the order pendency to; heard desire but are not bound to if they they may they themselves; contest are engage among they appear interplead; their is not as a not ordered to taken non-appearance disclaimer, nor are a technical default attached the consequences it, Dan. n. 4. as in a bill Ch. interpleader. decide the of intention its court still on The bound question n merits, Hence, of the information protection plaintiffs. defeat, and suffer their misfort- if the heirs invite litigation, appear, own action and want of une is the result their voluntary judg- ment, not be if the for which should held ac- others responsible, is’ the object equitable proceedings. complishment equity claims, the estate resist their unfounded After having compelled allowed the estate their then be they compel why ? in the of a will language may properly Ambiguity expenses executors’ for a con- to be the cause of the judicial .said application struction, it is the cause on the but litigatipn 'unnecessary of their contention is found their heirs: the cause interests. fault or the tes- motives and oversight personal will; them an to contest his have furnished tator but opportunity cause of not constitute the their On a it did opposition. pro- not ordered to suffer like are interplead, ceeding they their claims. to follow that Their they relinquish presumption rights not, whether they appear are protected submit, still be We intention must the testator’s adjudicated. claim are cases therefore, that there support heirs, the erroneous idea that a bill like this founded on are they defendants bill of is a interpleader, only option claims, or This to be their waive them. seems have is to litigate Massachusetts cases cited the heirs. view taken the Morse v. Stearns, 131 Mass. 389. defendants, costs, are un- heirs, when entitled to If though successful, are not entitled to the same when they indulgence why If in a bill same seeking object? litiga- plaintiffs case, it is of the testator in the one is due to fault tion equally PI. Pr. other. But Daniels & in the (Ch. 1426) says, so person —“If dismissed, he and his bill is will not in claims legatee his costs out the testator’s notwith- be allowed which renders it neces- there ambiguity standing its In to the court for construction.” Brasbridge to apply sary of kin suit the next the ex- Atk. against brought Woodroffe, dismissed, bill residue, and their but with- for the ecutors *16 costs, next of kin are because when disappointed out KIMBALL v. BIBLE SOCIETY. 157 residue, excuse,” court, it is some said the for their litigating is, it.” executors’ That were fortunate they in not right being costs, heirs, Itichardson the to obliged though seeking same recover their object costs. In failing, expect Newbegin 386, Bell, 23 Beav. there was no v. and the next gift, residuary kin filed a bill for administration. The debts exhausted the resi due, but there remained assets bequeathed. Held, specifically costs, must bear his own but that the executor plaintiff was en titled to his costs out of the In specific legacies. Rashleigh v. Master, 201, 205, 1 it Ves. Jr. was held that no costs should be heir-at-law, for or a defendant who set against a claim up of under the will and undisposed failed. When the is in fact caused claims, defendant’s litigation unfounded case, we contend was in this their costs are refused. v.Webb Claverden, 424; Clive, 2 ; Atk. v. 11 Beav. Thompson 475 Girard 603; ; Babineau, 18 Smith, v. La. An. Smith v. 189, 194— 1 Edw. Ch. 271, C., Blain, v. 588; S. 273 Mitchell Paige Paige Howland Green, Barber, 108 Mass. In Wilkinson Eq. L. R. 14 R., Lord M. refused to allow costs as Romilly, between solici client, tor and and allowed costs as between party party. Cases, Scotch, 1 L. In II. Lord Appeal Oranworth and Lord were inclined to think Westbury evidently costs would not have been allowed but for the agreement parties. But this has been settled in already state against taken the heirs. In position Attorney-General Dublin, 91, 94, said, N. H. it is The action is brought plaintiff —“ for the recovering private right which any thought themselves entitled. have failed They the court satisfy correctness of their construction of the will in question, and they stand in the of mere consequently position strangers, setting up ” claim are they unable to support; court refused ¡toallow them their costs. The same language equally applicable to heirs, these the fact that are not they technically plaintiffs making difference, submit, no we Whether principle. plaintiffs or de- actors, benefit, fendants. they personal claiming and insisting on the estate. If in against Attorney-General v. Dublin the in interest had been defendant, plaintiff making same failed, claim the estate had can against one suggest logical, reason a different rule why have been applied, he would have been allowed to recover why his costs ? These heirs knew that were not the they intended object testator’s knew bounty, they well who perfectly was such ob- ; but flaw the ject they hoped pick testator’s method of dis- and thus frustrate his intention. position, The cases cited heirs in their brief are almost all instances where dispute which of two was the one intended persons as the legatee. Each claimed under the will. Here the heirs claim against ; the is, claimed that the will made no valid disposition of the- *17 v. BIBLE SOCIETY. KIMBALL and that hence there was intestacy. dispute, partial funds this obvi- heirs costs in cases like unsuccessful rule giving Its is to en- policy. tendency unwise contrary public ously heirs of claims and unfounded the inequitable litigation by courage for, testators; to lose and estates of nothing the having against most of take the chances certainly gain, they everything needed, in this is not and the direction Encouragement success'. not be established. should precedent devised “to be Richardson disposed C. J. Mr. Dob, choose, and she made the his wife as she Seminary of by” contended that her will was The seminary her legatee. residuary of her husband of The heirs execution disposal. not an her will was execution that power, contended his intestate went to them. There- as the property, bill, the administrators of Mr. and Mrs. Richardson by upon, the of construction. For a decision question purpose asked the heirs an maintain opportunity seminary of giving further claims, and for the respective obtaining their bound, would be were claimants joined they decision by the semi- followed between In defendants. litigation as n heirs, It was decided that prevailed. and the seminary nary will was an execution of the and that power, Richardson’s Mrs. The heirs the seminary. controversy belonged the property of their counsel be that the fees paid by plaintiffs. move now unless the event of action petition, follow every shall Costs the court. In all actions or law or peti- directed otherwise court, costs on motion cause may, good in the supreme tions ordered, allowed, limited, and such therefor as shown, security be- L., o. G. ss. deem just.” the court may to submit to a decision of the the claimants ques- In compelling construction, the plaintiffs performed fiduciary duty. tion to wait for the estates and not bound settle were speedily, They instituted others. But were proceedings legal one matter indiffer- was a the contending parties, result in the have no beneficial interest them. property, They ence to and lose an order nothing granting can gain nothing costs. The was the motion for heirs’ seminary denying heirs, and with the interest litigation that hád any legatee other took it. The legatees might one any part the only the taxable and non-taxable part well required to contribute to indemnification the seminary, costs their heirs; is no more reason there taking it to the than for of either applying party, expenses defray case on the on both sides counsel fees every payment docket. on one side claimed the seminary A part and a on the other was heirs realty, person- and by BIBLE SOCIETY. vested in the alty. The at the moment Mrs. realty seminary Richardson’s death. Of title equitable personalty, (in- the whole beneficial at cluding interest) passed seminary On the the same time. now presented, legal, provi- *18 sional title of the administrators irrelevant. are mere They trustees, disinterested the for the temporary, holding personalty it has claimant whom been found to While the belong. equita- ble title was in in the remained the cus- controversy, personalty law, claimants, of the distribution or tody among waste, other or but for safe and de- any misappropriation keeping owner it should be when determined who livery the equitable titles, owner was. The equitable seminary’s legal equita- ble, divested, were not or unsuccess- impaired, suspended by being It now ascertained is and fully disputed. being seminary the was owner the and the owner of legal the equitable realty whether court the shall or can personalty, question being a adjudicated title convey seminary’s indisputable claimants, to the defeated it is not material the whether property or or a chattel a farm money, bequeathed, specifically specifically devised, Mr. Richardson his wife’s or whether appointee, it,of which vested at in ownership termination seminary of Mrs. Richardson’s life or equitable equitable only, and legal. As become insecure under an corporate inade- property may of the fact that its owners quate are bodies of conception natural care of so the committed to the

persons, safeguards property administrators, executors and and called the estates deceased be affected a persons, trust notion that funds so held in may vague of administration do not to certain during process belong heirs or in the full in living sense legatees which equitable his, workman’s are or that the title is less sacred wages equitable than title of other of its abso- possession heirs, lute owners. Mr. Richardson’s done either having nothing owner, save this fund for the it, or to enable the owner to get but done what having could to mer.ely they legally properly owner, it it, from the get are entitled to no out of and have salvage no lien it for services in upon performed of their prosecution invalid claim. The in the administrators’ seminary’s hands legacy liable, is no more sense, to be any legal applied payment the heirs’ than expenses, liable seminary taken on execution. If the heirs’ motion were granted, be, not. because are entitled to a of the semina- they portion because, costs, but ry’s for taxable and legacy, uon-taxable are entitled to a It is true that an against judgment seminary. able of each presentation side case is desirable mode of every n obtaining a correct decision. But this does not advantage justify n either cases, in class of or exception particular that, rule fees, to counsel shall losing party prevail. v. BIBLE SOCIETY. [Merrimack: to B A’s A’s without convey that the court motion A of a constitutional law can be pursuance granted consent rests the burden these heirs Upon conveyance. authorizing from the and justice taking property the legality of showing a final and conclusive title is established by judg- whose seminary want title is whose ment, persons and transferring is not that such a It same enough prac- judgment. settled by It is American foreign. other jurisdictions, tice prevails consistent with New authority Hampshire to produce necessary those here fundamental. regarded rights each of main- leave party may upon expense The legislature of costs as allow the recovery rep- his claim. They taining suffered or as prevailing party, incidental aration of damage At other sound of some theory legal justice. an application law, a expense protecting managing necessary common the trustee fund, incurred by beneficiary, trust whether Railroad, v. Concord 62 N. the fund. Burke upon charged may H. 531. *19 cannot be of the heirs in this case out paid But the costs unless, rule, a the by general prevailing property, seminary’s title, or suf- of an attack his a bear the upon expense party of this class an cases reason excep- making

ficient legal given rule. to tion the contrary It,is the of construction arose whether upon char- not material question other In the a of some kind. will, document legal a or upon lease, note, deed, statute, constitution, will, of an acter ambiguous that the there is nothing requires prevail- or other writing, party his of its counsel. meaning pay adversary’s on the ing question will, deed what she did had done If Mrs. Richardson heirs, a of writ the it had entry the brought against seminary deed, will, in- as it was held on her that she on her be held would tended and that the all her to exercise right disposal, writing of her The appointment. seminary air execution was would land, and a writ of for the possession recover judgment heirs would not The be volunteers in the for costs. an execution now, do were com- they suit. could complain, they They to case, their court and view or submit into urge pelled go decision; 'the but would be complaint unavailing an ex parte valid law costs of a giving be involuntary the absence litigants. done by rendering No injustice judgment greater fees, .for the counsel defendants’ plaintiff that action against tooff them on execution by setting judgment satisfying Richardsons, than in the land plaintiff part the heirs’ counsel out of the these administrators ordering Between the two cases there is no distinction legacy. seminary’s affects the merits'of the motion. If the in the fact that of law or present to allow its been content remain had legacy seminary hands, had' been content to hold plaintiffs plaintiffs’ title, an heirs action their question until the brought try KIMBALL v. BIBLE SOCIETY. motion for costs would have been denied. A is entitled to legatee whole of his when his title has been legacy dis- unsuccessfully in a suit Case, other claimants. The Dublin puted brought by 41 N. H. 94. And the whether he is question entitled to the whole of his or whether a defeated claimant is property, entitled it, does not on the time or depend chosen place determination of the induced one or on the circumstances controversy, rather than another to exercise the person right of title into court for decision. bringing question It is not material the construction of Mrs. Richardson’s will was debatable both parties, acting upon advice, best had reason to legal good litigate. expenses are not cast his losing party upon adversary by circumstance claim, of which were prosecution incurred, was in frivolous or vexatious. Men do not to law generally go absence and all difference of uncertainty opinion their a doubt entertained rights. Litigation supposes some- or a that raises a body, And if the controversy question. expenses of contestable were the other in a case losing party payable by' apparently sides, on both could make no difference whether the was one litigated question construction, sanity, identity, value, other of the innumerable quality, any issues quantity, law and other referees, fact that are tried and decided by jurors, or Between a doubt judges. concerning of a meaning or other doubt on equal writing, no subject, line can drawn the court on which can assume to legally indemnify out losing in one party opponent’s property class of cases, and not in all cases that are contested. properly Whatever test, be selected as the degree uncertainty might legal principle would demand in its consistency uniformity application. If *20 the court should undertake to when a is say question doubtful the to make the enough require prevailing party whole in costs, the matter of the same test would be to all applicable forms of action and kinds of all controversies. To out a single particular class of cause, cases without in this class legal we say, its from owner to some other convey property person, be an assertion of at variance with our arbitrary power system gov- ernment. “It is a that a trust estate must general principle bear the of its administration. It is also established

expenses by sufficient where one of a authority, many parties, common having inter fund, est in a trust his at own takes expense proper proceedings to save it from destruction and to restore it to the purposes the trust, reimbursement, ishe entitled to either out of the fund itself, or contribution from those who the proportional accept benefit of his efforts.” Trustees 105 U. Greenough, S. 533. “ While to the decree in case, I of the court I agree do not so to the far as it is an in favor of opinion, argument agree a prin- vol. lxv. BIBLE SOCIETY. on which is founded the abuse the grossest judicial present ciple the of a or a fund which comes absorption day, namely, — court, of a the control allowances

into fees by making attorneys’ the out of the and other litigation, expenses, pending payable fund, it the when be decided that who common may finally party costs, incurred the had the or never interest attorney, employed This from or fund litigation. system paying in- him those my approval.” the effort wrest it from a man’s can never engaged Miller, receive 538. p. An a abuse The apparent. expense saving origin administered, fund, otherwise it to be or trust causing legally trust, fund, out in- be whether an payable expense title, the It holds or the trustee who curred by legal beneficiary interest. is sometimes a whether who holds actual question an in the was incurred owner equitable an of the protection expense trust, and the enforcement claimant of the title in contest with another of the claimant equitable ; the distinction is not maintained same title and always accurately the fund for of the costs of the benefit between administering owner, costs of an effort to divert to a not known claimant be, be, the owner. If or known not claims person lega- dismissed, out his bill is he will not to his costs tee, and entitled there is an of the testator’s notwithstanding ambiguity its renders it to the court for will which necessary apply It us is here ... does the seem to that there construction. of this expenses upon charge litigation any just ground action is The fund controversy. brought by plaintiffs they to which thought the themselves recovering private right entitled. have failed the court They satisfy their of the will in construction correctness consequently claim N. they question, stand of mere position setting up strangers, support.” Case, are unable to The Dublin 91,H. ca.nbe is no on which this case There equitable ground rule, that the does made exception party prevailing his taxable and non-taxable costs. fees adversary’s pay not an administration. counsel were heirs’ expense fiduciary motion, the heirs that are relevant on the For are an purposes present on party, seminary party, losing prevailing should of title. If administrators ordinary counsel out of the the heirs’ ordered would seminary’s legacy, pay in all cases follow prevailing party counsel fees and other recover nothing expenses, opponent’s *21 be left of the in contro- what damages except might been en- the other side. after If it'had indemnifying versy fully contested, that, in title is cases wills where corporations acted the court otherwise, shall execution or enough by convey, levy from the to be the owner person adjudged BURKE STILES. 1889.J cost, loss, claimant to him other for all indemnify result- damage his, from his what was not it would have been ing claiming neces- how the could statute be sustained. If the sary title could inquire seminary’s be considered as administration or suspended during order the heirs’ motion would be during litigation, granting L., of the statute of violation wills e. s. (G. 1) rights of Mr. and Mrs. Richardson. A testator intends that necessarily administration, his shall but subject expenses to the costs of an ineffectual diversion of to defeat his will. The attempt of the Richardson estate from the any part destination fixed the testators would not be an exercise of judicial power.

Motion denied. J., did sit: Clark, the others concurred.

Burke & a. Stiles & a. What force in a passes by clause will is that residuary which remains

after demands satisfying against including legacies and devises mentioned the will. anywhere land, J. The Allen, claim a plaintiffs and a reconveyance surrender notes for land promissory them conveyed Stiles, the defendant M. to which claim Augusta the title has failed. The defendant wholly partially Stiles claims title father, under the will of her G. Davis. The other Benjamin de- Davis, fendants are heirs and of Alice P. wife of legatees Benjamin Davis, lifetime, death, who in G. her and at her owned a part the land the title to and a controversy, mortgage owned her husband. her will part she By devised all the remainder of her bequeathed after the property, pay- husband, ment some minor to her G. legacies, Benjamin Davis, life,” to use his natural the remainder to her heirs during after Then, certain after a paying legacies. enumeration of specific clause is : written Be it remembered, property, that I Pembroke following husband, reserve, without give my land piece Davis, me deeded to B. G. and also the mortgage Davis, to me D. C. and that in this assigned will nothing construed so as to the said G. Davis prevent from Benjamin con- we now own fit, to whom he see veying reserved shall remain in common with his my the said until after death, G. Davis and that I do Benjamin hereby appoint husband, Davis, G. my administrator of Benjamin last my my will testament.” The testatrix died in admitted to probate.