as guardian of Charles H. Ballou, and had rendered an account from time to time; but his final account filed in 1908, and the preceding account filed in 1906, though both allowed by the probate court of Cumberland, had been appealed from by said Stephen W. Ballou, and on appeal had been tried before Mr. Justice Stearns and a jury, and sustained as originally filed. A new trial thereon had been denied by Mr. Justice Stearns, and COLEMAN v. BENJ. F. SMITH CO. et al. (Supreme Court of Rhode Island. Feb. 11, 1910.) On motion that plaintiff show cause why judgment should not be entered for defendant, under Gen. Laws 1909, c. 298, § 22. Judgment directed for defendant. See 74 Atl. 915. said accounts were then pending in the Su- Pirce & Thornley (William H. Camfield, of Cooney & Cahill, for plaintiff. Gardner, preme Court on exceptions to this decision." The superior court held that on appeal it will not disturb the appointment of the probate court, unless there is some very strong reason for so doing, and the fact that its opinion and discretion, if exercised, might not agree with the decision of the probate court, is no reason for such interference; that the fact that a person otherwise eligible to appointment has an interest in the estate, or is a creditor, or has been guardian of the deceased, is not a positive legal disqualification, but these are facts which may be con sidered by the probate court in exercising their discretion on the original appointment; that even if the appointment of Osborn J. Ballou was for any reason improper origin- | ally, as his accounts have been filed and fully contested by other parties in interest, the reason urged by appellant fails, as Osborn J. Ballou will no longer as administrator have to account with himself as guardian, and there is now at least no reason why he should not act as administrator. And the appointment of Osborn J. Ballou as administrator was confirmed. The exceptions of the appellant are without merit. There is nothing to indicate that the probate court of Cumberland originally, or the superior court on appeal, abused the discretion reposed in them, respectively, in appointing the appellee administrator of the estate of Charles H. Ballou. On the contra counsel), for defendants. SMITH V. ANTOINE. (Supreme Court of Rhode Island. Feb. 9, 1910.) and Bristol Counties; Christopher M. Lee, Exceptions from Superior Court, Providence Judge. Action by John C. Smith against Joseph Antoine. There was a verdict for plaintiff, and defendant brings exceptions. Exceptions overruled, with direction to enter judgment on the verdict. Edward M. Sullivan, for plaintiff. Frank L Hanley, for defendant. PER CURIAM. There is no merit in any of the defendant's exceptions. The verdict of the jury, approved by the justice who presided at the trial, is amply supported by the evidence. ruled, and the case is remitted to the superior The defendant's exceptions are therefore overcourt, with direction to enter judgment on the verdict. (75 N. H. 410) EAGAN V. KENNEY et al. ry, the action of said courts in respect of said (Supreme Court of New Hampshire. Hillsbor appointment was taken after they had allowed the accounts of Osborn J. Ballou as guardian of said Charles H. Ballou; and their allowance of said accounts has been sustained by this court. The final allowance of the accounts has removed the only objection made by the appellant to the appointment of his brother as administrator of the estate of their brother, to wit: "On account of his interest antagonistic thereunto." It is perfectly apparent that no benefit could accrue to the estate of Charles H. Ballou, wherein the parties hereto have an equal interest, by now changing the administration thereof from one brother to another, both being suitable and competent persons. The appellant's exceptions are therefore overruled, and the cause is remanded to the superior court, with direction to enter a decree in conformity with its decision and for further proceedings. ough. Jan. 4, 1910.) WITNESSES (§ 150*)-TRANSACTION WITH PERSON SINCE DECEASED-EVIDENCE AGAINST EXECUTOR AND HEIRS. Pub. St. 1901, c. 224, § 16, provides that, when one party to a cause is an executor or facts which occurred in the lifetime of the deadministrator, neither party shall testify as to ceased except in certain cases. Held that, in a suit to enforce a resulting trust of property purchased by decedent with money furnished by plaintiff, plaintiff, though not entitled to testify as against decedent's administrator, was competent as against the other defendants who were decedent's heirs. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 653-657; Dec. Dig. § 150.*] Transferred from Superior Court, Hillsborough County; Chamberlin, Judge. Bill by Catherine Eagan against Owen Kenney, as administrator, etc., to establish a resulting trust. Case transferred from the Superior Court. Case discharged. The defendants are the administrator and heirs at law of James S. Kenney, and the plaintiff was his fiancée. Subject to exception, she was permitted to testify in relation to matters as to which he could have testified if living. If her testimony was admissible, there is to be a decree in her favor. James A. Broderick, for plaintiff. Burnham, Brown, Jones & Warren, for defend ants. [railroad commissioners to fix the reasonable charges to be made by the American Express Company for transportation of goods and merchandise within this state, and, pursuant to said petition, said commissioners fixed the reasonable charges for the aforesaid purpose; and the said company, under the provisions of said act, took an appeal from said declsion to the superior court for Hillsborough county, and said appeal is now pending in said court. YOUNG, J. The court found that James Said Board of Trade and the other petibought the house with the plaintiff's money, tioners have requested the Governor and and the evidence warrants the finding in so Council to direct the Attorney General to far as the plaintiff's testimony was admis- appear and prosecute said appeal, and that sible. Although it was inadmissible against the further expense of said proceeding be the administrator (Parsons v. Wentworth, 73 assumed by the state of New Hampshire. N. H. 122, 59 Atl. 623; Pub. St. 1901, c. 224, The Governor and Council believe this re16), it was admissible against the heirs at quest should be granted, provided they have law (Crowley v. Crowley, 72 N. H. 241, 56❘ the legal right so to do. But, being in doubt Atl. 190); for the mere fact that the admin- respecting their duty in the premises, they istrator is a party does not make her testi- ask the advice of the court, and submit the mony incompetent as to them (Weston v. El- following questions: liott, 72 N. H. 433, 57 Atl. 336). The bill therefore must be dismissed as to the administrator, but as to the heirs the decree stands; and he will treat her share of the house in settling James' estate just as he would if James had devised it to her. Case discharged. All concurred. (75 N. H. 624) In re OPINION OF JUSTICES. (Supreme Court of New Hampshire. Feb. 1, 1910.) 1. COURTS (§ 208*)—ADVISORY OPINIONS. The Supreme Court will decline to answer a question submitted by the Governor and Council where an answer will not be of practical assistance to the Governor and Council. [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 492, 493; Dec. Dig. § 208;* Constitutional Law, Cent. Dig. § 128.] (1) Have the Governor and Council authority to direct the prosecution of said proceeding in the name of the state? (2) Have the Governor and Council authority to appropriate money from the state treasury for the above-named purpose, and, if so, from what fund shall it be taken? Henry B. Quinby, Governor. A. Melvin Foss, Henry W. Boutwell, Albert Annett, James G. Fellows, Lyford A. Merrow, Councilors. To His Excellency the Governor, and the The questions submitted in the foregoing 2. STATES (8 131*)-APPROPRIATIONS-NECES- to assume the prosecution of the suit against SITY. Under Const. pt. 2, arts. 5, 55, providing that no moneys shall be issued out of the state treasury but by warrant under the hand of the Governor for the support and defense of the state and for the necessary protection of the inhabitants thereof, agreeably to the acts of the general court, the Governor has no authority to draw his warrant on the treasury in a particular case, unless there is an existing act of the Legislature authorizing the payment, and the Governor and Council are, in the absence of statutory authority, without authority to appropriate money from the state treasury for the prosecution of an action to fix reasonable express charges. [Ed. Note.-For other cases, see States, Dec. Dig. 131.*] the express company, which is now pending upon appeal in the superior court for Hillsborough county, in behalf of the state and at its expense. If they have such power, as a matter of law, it is assumed from the language of the request that in their opinion oc casion has arisen for its exercise. Although the Attorney General is required to "act for the state in all criminal and civil causes in the Supreme Court [and in the superior court] in which the state is interested" (Pub. St. 1901, c. 17, § 4), we do not deem it necessary or useful in this opinion to define the extent of his official duty, or to exthe interest of the state is technically such press our views upon the question whether that it is his duty to represent the state or the people in the case referred to. If the state, through the Attorney General or un Under the provisions of chapter 100, Laws der his supervision, is to actively engage in 1907, the New Hampshire Board of Trade this litigation, and to manage and control and other parties interested petitioned the the prosecution-if such action is its right For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes Opinion by the Justices of the Supreme Court, in response to questions submitted by the Governor and Council. To the Justices of the Supreme Court: and duty-the expenses which would be the assistance of counsel by brief or arguthereby incurred might and probably would amount to a considerable sum; and, if upon investigation it should be found that no money in the public treasury could be used to defray those expenses, it is not probable the Governor and Council, if they have the power in a proper case, would deem it expedient to require the Attorney General to engage in this litigation. In the absence of means legally available to meet the necessary expenditures incident to the proper conduct of a suit of this character, there would seem to be little occasion to consider whether the state should be represented therein as a principal litigant; and in that event our answer to the first question would be of no practical assistance to the Governor and Council in the pending matter. ment, has not disclosed to us any legislative authorization for the payment from the treasury of money on account of the expense attending the preparation, trial, and general conduct of civil actions in court, in which the state might properly become a party. By chapter 168, Laws 1909, the last Legislature specified with much particularity the "appropriations for the expenses of the state of New Hampshire for the year ending August 31, 1910." But the act contains no language which, when given its obvious meaning, would show an intention on the part of the Legislature to appropriate money for the expenses of litigation of the character above suggested. In the appropriation for the Attorney General's department, an allowance of $300 is made "for enforcement of liquor If, therefore, it is assumed that the nature laws." If the intention had been to raise of the suit in question is such that the At- money for the prosecution of such other torney General might be required to inter- suits of a public nature as the Governor and vene in behalf of the state or the public, if Council might think the public good requirthe Legislature had provided a fund for the ed, it would have doubtless been expressed payment of the expenses of such litigation, with as much clearness as the appropriation it becomes necessary to consider the second for the enforcement of the liquor laws. Evquestion submitted. In the Constitution it idently it did not occur to the lawmakers is provided that "no moneys shall be issued that occasion might arise when the Governout of the treasury of this state and disposed or ought to have the power to pledge the pubof (except such sums as may be appropriat- lic credit for the vindication or establishment ed for the redemption of bills of credit or of public rights; or, if it did, it may have treasurer's notes, or for the payment of in- been deemed wiser to withhold the power terest arising thereon) but by warrant un- until the occasion should arise, which seems der the hand of the Governor for the time to have been the view of the Legislature of being, by and with the advice and consent 1901, when it passed a special act authoriof the Council, for the necessary support and zing the payment of expenses to be incurred defense of this state and for the necessary by the Attorney General in defending the protection and preservation of the inhabit-rights of the people in the public waters of ants thereof, agreeably to the acts and re- the state. Laws 1901, c. 121. solves of the general court." Part 2, art. 55 [56]. A similar provision is contained in article 5. From these provisions of the Constitution it is clear that the Governor has no authority to draw his warrant upon the treasury in a particular case, unless there is some existing act or resolve of the Legislature authorizing such payment. In recognition of this fundamental principle, the Legislature has provided that "whenever any money is due from the state to any person. by force of a general law, special act, or resolution, the Governor is empowered, and it shall be his duty, with advice of the Council, to draw his warrant upon the treasury therefor in favor of such person." Pub. St. TRUSTEES OF PEMBROKE ACADEMY ▼. 1901, c. 20, § 1. Moreover, in 1909 it was enacted "that from and after the first day of September, 1909, no moneys shall be paid from the state treasury for any purpose, without a specific appropriation authorizing the expenditure." Laws 1909, c. 15, § 1. The payment of claims against the state can only be justified by appropriate legislative action. Opinion of the Justices, 72 N. H. 601, 54 Atl. 950. We feel compelled, therefore, to decline to return an answer to the first question, and to submit as an answer to the second our opinion that the Governor and Council are not authorized "to appropriate money from the state treasury for the above-named purpose." FRANK N PARSONS. JOHN E. YOUNG. ROBERT J. PEASLEE (75 N. H. 408) EPSOM SCHOOL DIST. et al. (Supreme Court of New Hampshire. Merrimack. Jan. 4, 1910.) 1. WILLS ($675*)-CREATION OF TRUST-PRECATORY WORDS EFFECT "DESIRE" - "REQUEST"-"RECOMMEND" "HOPE" - "Nor DOUBTING." The words "desire," "request," "recomin a will to express his desire that the executor mend," "hope," "not doubting" used by testator will conduct a fund in a specified manner, tesOur examination of the statutes, without tator having power to command, will not be con cient to create a trust. For other definitions, see Words and Phrases, vol. 3, pp. 2028-2030; vol. 8, pp. 7635, 7636; Vol. 7, pp. 6120-6122; vol. 8, p. 7786; vol. 4, p. 3343; vol. 5, p. 4832.] 2 TRUSTS (§ 25*) CREATION NECESSARY LANGUAGE. Technical language is not necessary to create a trust, it being sufficient if the intention is apparent. strued as precatory only, but as commands | precatory, and therefore there is no enforceclothed in the language of civility, and to im- able obligation to carry out the wish expose on the executor an enforceable duty, suffi- pressed by the testator concerning the applica[Ed. Note. For other cases, see Wills, Cent. tion of the income of the fund. "The words Dig. 88 1587-1589; Dec. Dig. § 675.* 'desire,' 'request,' 'recommend,' 'hope,' 'not doubting,' that the executor will conduct in a specified manner, when they come from a testator who has the power to command, are to be construed as commands, clothed merely in the language of civility; and they impose on the executor a duty which courts have in repeated instances enforced." Erickson v. Willard, 1 N. H. 217, 229. "Precatory words in a will, equally with direct fiduciary expressions, will constitute a trust. "Technical language is not necessary to constitute a trust. It is enough if such intention is apparent.' 1 Per. Tr. (3d Ed.) s. 114, note." Foster v. Willson, 68 N. H. 241, 242, 38 Atl. 1003, 73 Am. St. Rep. 581. These authorities seem applicable here. The intent of the testator was to direct the disposition of the income of the fund. It was a command "clothed merely in the language of civility." [Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 34-37; Dec. Dig. § 25.*] 3. CHARITIES (§ 36*)-TRUSTS-CONSTRUCTION -PURPOSE. Where testator bequeathed to the trustees of an academy $1,000, the annual income of which was to be expended in paying the tuition of such poor boys in the town of E., of good moral character, as might be recommended from time to time to the trustees of the academy by a majority of the board of selectmen of the town, the income should be applied to scholarships for boys designated in the manner specified, not limited to tuition, but to extend to such further assistance as was necessary to afford needy pupils an education. [Ed. Note.-For other cases, see Charities, Cent. Dig. 65; Dec. Dig. § 36.*] Transferred from Superior Court, Merrimack County; Pike, Judge. Bill by the Trustees of Pembroke Academy against the Epsom School District and another for directions as to the disposition of a charitable trust fund. Case transferred without ruling from the Superior Court. Case discharged. Ephraim Locke died in 1892. The sixth clause of his will is: "I give and bequeath to the trustees of Pembroke Academy the sum of one thousand dollars in money, the annual income of which sum I wish to be expended in paying the tuition of such poor boys in said town of Epsom, of good moral character, as may be recommended from time to time to the trustees of said Academy by a majority of the board of selectmen of said town of Epsom as worthy and deserving this privilege." Epsom has no high school, and Pembroke Academy has been approved by the state superintendent of public instruction as a school complying with chapter 96, Laws 1901, and the amendments thereto. Since this legislation went into effect, the plaintiffs have charged the tuition of their Epsom students to the defendant district, while the district claims that the income of the Locke fund should be applied to that account. Streeter & Hollis and Fred C. Demond, for plaintiffs. Martin & Howe and Joseph A. Donigan, for Epsom School Dist. Edwin G. Eastman, Atty. Gen., furnished no brief. Other defendants, pro sese. What disposition shall be made of the income under the changed circumstances? The plaintiffs suggest that they should apply it to their general purposes, wherein the intended beneficiaries may have a share, as was done in Adams Female Academy v. Adams, 65 N. H. 225, 18 Atl. 777, 23 Atl. 430, 6 L. R. A. 785. The Epsom school district claims that the income should be applied according to the strict letter of the bequest, thereby relieving its taxpayers, while but slightly, if at all, aiding those the testator had in mind. No brief has been filed in behalf of the "poor boys in Epsom." But their interest is here paramount, and the fund is to be so administered as to aid them, rather than the trustee designated in the will, or those who pay taxes in Epsom. It seems that this can easily be done by applying the income to scholarships for boys designated in the manner pointed out in the will. Free tuition will not always enable a poor and deserving boy to attend an academy. He may need further assistance. Furnishing this will comply exactly with the wish of the testator. It does not appear that this plan has been considered by the parties. They may apply to the superior court for further findings, if such course is deemed essential to the final disposition of the case. As the matter is now presented, only the general outline of what is to be done can be determined. Case discharged. All concurred (75 N. H. 601) HETTINGER v. MANILLA BREWING CO. (Supreme Court of New Hampshire. Cheshire. Jan. 4, 1910.) 1. CONTRACTS (§ 280*)-Breach. PEASLEE, J. The plaintiffs' first position Plaintiff's contract being not to fully equip Is that the words of the bequest are merely a brewery for defendant, but to purchase and For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes [Ed. Note. For other cases, see Contracts, Dec. Dig. 280.*] 2. TRIAL ($ 395*)- FINDINGS BY COURt. Where defendant seeks to recoup for plaintiff's alleged delay and neglect to perform his contract for equipping a brewery, and it appears that under the terms of the contract plaintiff was not necessarily bound to fully equip it, but only to expend a certain amount thereon, and that he did this, it is not enough to find generally a breach of the contract and damages in a certain amount; but, if the breach consisted in failure to prosecute the work with reasonable diligence, and the damages found were due solely to this, these facts should be definitely found. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 927-934; Dec. Dig. § 395.*] 3. APPEAL AND ERROR (8 704*)-REPORTING EVIDENCE. install in the brewery equipment which, with | 18, 1905; but whether the breach consisted 10 per cent. commission for doing the work, in his failure to purchase and install in the shall not exceed $8,000, and he having done this, the fact that there was not a complete brewery all the equipment necessary to make equipment was not a breach entitling defendant it complete, or in a failure to prosecute the to damages. work of equipping the brewery with reasonable diligence, or whether the damages suffered by the defendants were due to the first or the second of these causes, or partly to each, cannot be determined from the facts found. If the breach consisted in the plaintiff's failure to fully equip the brewery, and that was the sole cause of the damage suffered by the defendants, the finding allowing them $2,800 under their plea of recoupment cannot be sustained; for the contract does not contemplate that the plaintiff should fully equip the brewery for $8,000, but that he should purchase and install equipment which, with 10 per cent. commission for services in making the purchases, overseeing the work, and drawing plans, should not exceed $8,000. If, however, the contract can be said to be ambiguous as to the extent of the plaintiff's obligations, the trial court has found upon competent evidence that the parties did not intend by the language used that the plaintiff should fully equip the brewery for the sum of $8,000, but that he should purchase and install equipment which, with 10 per cent. commission for services in making the purchases, overseeing the work, and drawing plans, should not exceed that sum. This it is found he had done at the time he ceased work on March 7th, and on this theory of the case the defendants would not be entitled to the damages awarded them. consisted in a failure to prosecute the work of equipping the brewery with reasonable diligence, and the damages found to have been suffered by the defendants were due solely to this cause, these facts should be definitely found; and, if it is desired to question the validity of the findings, the evidence upon which they are based should be reported. Where the facts are found by the superior court, and the case is transferred to the Supreme Court, the evidence on which findings are based should be reported, if it be desired to question their validity. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2941; Dec. Dig. 704.*] Transferred from Superior Court, Cheshire County; Stone, Judge. Action by Carl F. Hettinger against the Manilla Brewing Company. Facts found, and case transferred from the superior court. Case discharged. Assumpsit, to recover for labor performed and materials furnished under two contracts, one dated September 16, 1905, called the construction contract, and another dated October 18, 1905, called the equipment contract. The defendants' plea alleged that the plaintiff by the contracts agreed to build and equip a brewery for the defendants, and that, although they had faithfully performed their obligations, the plaintiff had delayed, neglected, and refused to perform those assumed by him, whereby they had been greatly damaged, and they asked that they be allowed to recoup the damages they had suffered against any sum the plaintiff might be awarded. The court found that the equipment contract was broken by the plaintiff, and that the defendants were damaged in the sum of $2,800 by the breach, and made an allowance to them of that amount. The plaintiff excepted to the finding and allowance as not warranted If the breach We have examined the other questions raised by the exceptions taken at the trial, and do not find that they are well founded. That such action may be taken in the superior court as justice requires, the order is: Case discharged. All concurred. HOWE v. LEIGHTON. Jan. 4, 1910.) (75 N. H. 601) by the evidence and as inconsistent with oth- (Supreme Court of New Hampshire. Cheshire. er findings of fact, and on the further ground that other facts found conclusively show that the plaintiff did not break the contract, but fully performed the same. Cain & Benton, for plaintiff. William A. Davenport, Harry E. Ward, and Joseph Madden, for defendant. BINGHAM, J. It is found that the plaintiff broke the equipment contract of October MASTER AND SERVANT (8 302*)-INJURIES TO The owner of an automobile is not liable for injuries caused by his chauffeur's negligence while riding for his own pleasure, and not upon the owner's business. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1217-1229; Dec. Dig. § 302.*] |