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The clause in the codicil was as follows: "All sums of money given to my children in my said will, and all sums paid to them by my executors under said will, are given to them, and are paid to them, for the benefit of their heirs, respectively, and are not to be in any way or manner liable for their debts, or taken by their respective creditors, if any, in any way or form."

It appeared from the bill that Edward Merrill died September 11, 1884, leaving a last will, which was duly approved and allowed in the probate court, and that Southward Potter, Edward B. Merrill, and James H. Myrick were duly qualified as executors; that the testator left six children and no wife living; that, in pursuance of the said will, the executors sold the mansion house and certain furniture, and have certain proceeds of sale and otherwise which they were proceeding to pay over to his children as provided; that they were notified and warned not to do so by C. W. Clifford, who duly acts for and represents the rights of one Converse Merrill, minor child of the testator's son George by his wife, Mary Amelia Merrill, of San Francisco, and said Clifford claims that the sums payable as above should not be payable to the children of the deceased in their own right, because he claims that such sums are receivable only as trust funds, and belong to trusts under the will, and in which trusts the grandchildren of said testator are interested as beneficiaries: and said Mary A. Merrill, in her capacity as guardian, has applied to the probate court for Bristol county to require the said George B. Merrill to file a bond, with sureties, in respect of his duties as trustee, and has notified the executors not to pay over to said George any part of said trust fund until he has furnished said bond. The testator's children claim that said funds are payable directly to them, free from any trust. The prayer of the bill was that the executors were in doubt in the premises, and that a guardian ad litem be appointed to appear for and represent the minors. The case was heard in the supreme court before HOLMES, J., and, at the request of the parties, was reserved for the consideration of the full court.

C. W. Clifford and H. H. Crapo, for Mary A. Merrill and C. W. Clifford, Guardian ad Litem.

The manifest intention of the testator, in the first clause of the codicil, is that the property shall be paid to his children in such a way that their creditors cannot reach it. His intention is clearly inconsistent with the absolute gift to the children in the will. To give the codicil any effect whatever, the absolute quality of the gift must be held to be revoked. It has been determined in this common wealth that although, by the common law, a man cannot attach to a grant of property, otherwise absolute, the condition that it shall not be alienated, still this does not apply to a transfer of property in trust. Broadway Bank v. Adams, 133 Mass. 170. In this case the intention of the testator is equally clear to give a qualified, instead of an absolute, right to the principal. The words are sufficient to create a valid trust. The cases on precatory trusts have no application. The essentials of a trust are-First, a trust fund; second, a trustee; third, a cestui que trust; fourth, the terms of the trust. The trust fund and the trustee are definite in this case. The fund consists of "all sums of money given to my children in my said will, and all sums paid to them by my executors under said will." The trustee of each fund is the child to whom, by the will, the fund is given. The word "heirs" has frequently been construed to mean children, (Ellis v. Proprietors Essex Mer. Bridge, 2 Pick. 243; Bowers v. Porter, 4 Pick. 198; Houghton v. Kendall, 7 Allen, 72; Haley v. Boston, 108 Mass. 576; Cushman v. Horton, 59 N. Y. 149; Flint v. Steadman, 36 Vt. 210; see 1 Perry, Trusts, § 66; Ashurst v. Given, 5 Watts & S. 329,) or the word "heirs" may be construed to denote a class of persons, (Gordon v. Green, 113 Mass. 259.) A gift of personal property may be made to one with absolute ownership, determinable on a contingency that must happen, if at all, on his death, with a limitation over to another. Homer v. Shelton, 2 Metc. 194. See, also, Ellis v. Proprietors Essex Mer. Bridge, ubi

supra; Hooper v. Bradbury, 133 Mass. 303, 307. This construction does not disturb the equalization scheme of the will.

T. M. Stetson, for children of testator.

One's own children are not to be disinherited unless the intent to do so is very clear and manifest. Hayden v. Stoughton, 5 Pick. 528. Legacies by implication are not to be supported unless clear, and so that no other reasonable inference can be made. Grout v. Hapgood, 13 Pick. 159; Williams v. Bradley, 3 Allen, 270. This case also discusses the force of provisions for equality. Sears v. Cunningham, 122 Mass. 538; Barrett v. Marsh, 126 Mass. 216. Even vested remainders always yield when a contrary intention is gathered from a fair construction of the entire will. Knowlton v. Sanderson, 141 Mass. 326; S. C. 6 N. E. Rep. 228; Putnam v. Gleason, 99 Mass. 456; Jackson v. Veeder, 11 Johns. marginal page 169. We submit that the testator's object was to give his estate to his children, and with especial care to attain equality among them. That he undertook to legislate away the rights of creditors, whether effectually or not, is not very material here; and there is no reason to believe that he intended or supposed that his children should take nothing. As an indication of intent, it is certainly overworking that codicil to suppose it to nullify all the expressions of the will in favor of his children, and which will he does not revoke,-allows to stand. There is no intent shown to reduce the children to a life tenure. A gift to a man and his heirs is the simplest form of gift to him. Pub. St. Mass. c. 126, § 4, has no application. That only applies to land. See Kepple's Appeal, 53 Pa. St. 211. The word "heirs" means those who will inherit by and by, and will then take, by process of inheritance or distribution, under testator's children. That is its common and its legal meaning, and it is plain the testator so uses it, and not as a word of purchase. Putnam v. Gleason, 99 Mass. 456. In a will of personalty, the word "heirs" means those who take under local laws for distribution of intestate estates. Sweet v. Dutton, 109 Mass. 591. We cannot fancy that this will intended to deprive a named son (George) in favor of George's wife, who by California laws is one of the distributees. Houghton v. Kendall, 7 Allen, 72; Balcom v. Haynes, 14 Allen, 204; Bassett v. Granger, 100 Mass. 349; Otis v. Prince, 10 Gray, 582. See Broadway Nat. Bank v. Adams, 133 Mass. 172, 174; Foster v. Foster, Id. 179; Troy v. Sargent, 132 Mass. 409. As to cases of precatory words, see 2 Story, Eq. § 1195; 1 Perry, Trusts, 114; Webb v. Wools, 2 Sim. (N. S.) 267; Van Duyne v. Van Duyne, 14 N. J. Eq. 397; 1 Jarm. Wills, 402; Byne v. Blackburn, 26 Beav. 41; Lambe v. Eames, L. R. 6 Ch. 597; Perry, note 3, § 117, p. 125; Reid v. Atkinson, 5 Ir. Eq. 374; Hess v. Singler, 114 Mass. 56; Andrews v. Partington, 2 Cox, 223; Hill v. Downes, 125 Mass. 509; Mackett v. Mackett, L. R. 14 Eq. 49; Barrett v. Marsh, 126 Mass. 216; Willets v. Willets, 35 Hun, 401; Kepple's Appeal, 53 Pa. St. 211

C. ALLEN, J. The testator left six children. To five of them he had made advancements in his life-time, differing much in amounts. To one, he had made no advancement. The will contains a clear expression of the testator's wish to do equally with all his children; but it contains no suggestion, direct or remote, of grandchildren, or of his children's heirs, or of attaching any trust to the bequests to his children. Sixteen days after the execution of the will, the codicil was executed, which contains the provision out of which the question now arises. This provision is that "all sums of money given to my children in my said will, and all sums paid to them by my executors under said will, are given to them, and are paid to them for the benefit of their heirs, respectively, and are not to be in any way or manner liable for their debts, or taken by their respective creditors, if any, in any way or form." Taking these words literally, all the sums of money are given to the testator's children for the benefit of their heirs, respectively; and principal as well as

income is included. But it is plain that the testator did not by this brief clause mean to make so great a change in the destination of his property as to cut off all beneficial interest in his children; and to say that whereas, by the will, everything was given to them absolutely, now by the codicil all this should be changed, and nothing given to them beneficially, but everything left in trust for their heirs. Indeed, this view is not contended for in the argument. The counsel for the grandchildren frankly concedes that this would be too strong a construction to ask for, and he contends that the true meaning is that the income should go to the testator's children for their lives, and the principal be held for their heirs. He concedes also, that this result can only be reached by establishing a trust, since, if the property is vested absolutely in the children, the further expressions that the same should not be liable for debts or taken by creditors must in law be held to be simply nugatory. Broadway Bank v. Adams, 133 Mass. 170.

There is no clear expression of an intention to create a trust. The word "trust" is not used. This, however, would not be decisive if a clear intention to create a trust could be found. But this will contains none of the provisions which usually accompany the creation of a trust. No suggestion is made of paying the income to the testator's children for life, and keeping the principal for their heirs. There is no specification of persons to take the remainder, except the very general one of "heirs." It is at present uncertain who may prove to be the children's heirs. It may be their issue, or, in the case of the sons, their wives, or their brothers and sister. It is more probable that he meant that the heirs should take only by descent, and not as independent legatees. The testator's purpose seems to have been to prevent the property from going to his children's creditors, but not to benefit the children's heirs, to the exclusion of the children themselves. This purpose, as expressed in the codicil, fell short of creating a trust. There is nothing to show that the testator would wish to go so far as would be necessary in order to carry out his purpose of securing the property against creditors. He did not mean to cut off his children. Reading the will and the codicil together, the latter does not appear to be a revocation of the will, but rather an expression of his purposes and hopes in making it. The statement which it contains is a general and sweeping one, applicable to all his children alike, and to all sums of money given to them in the will. There is no selection of any particular child, whose share, for special reasons, he might wish to put in trust; but all his children come within the provision, including the son to whom no advancement had been made, and who was appointed as one of the executors, with a request that he be not required to give bond. It is hardly to be imagined that the testator, so soon after the execution of his will, would mean, by so short and vague a provision in a codicil, to make so radical a change in the disposition of his property, and put his whole estate in trust for the benefit of his children's heirs. Moreover, this would fail to make the contemplated equalization of his gifts to his children. To tie up the shares under the will in trusts, when the advancements to five of his children, of widely differing sums, have been free from any trust, would not put them all on an equality. Besides, this would also effect a revocation of the bequest of $100 to Charles, which, if intended, would more naturally have been mentioned expressly. It is also to be observed that the construction contended for would by no means have the effect entirely to cut off the children's creditors, but would leave the income of the property still open to be reached, and so this would not fulfill the purpose of the testator.

On the whole, without going into further details, it seems to us that the testator did not mean to deprive his children of the ownership of the property given to them by the will, but rather to annex to such ownership a condition or limitation to which no legal effect can be given. Decree accordingly.

(143 Mass. 187)


(Supreme Judicial Court of Massachusetts. Bristol. January 5, 1887.)

1. ARREST AFFIDAVIT-COSTS-EXECUTION AGAINST ADMINISTRATOR PERSONALLY. An execution for costs issued against an administrator personally, under Pub. St. Mass. c. 166, 8, warrants an arrest, without affidavit or special instructions to the officer.


A recognizance may be taken by a special justice, and his authority need not be set forth in the recognizance.

This was an action of contract upon a recognizance taken before one Milliken, one of the special justices of the Third district court of Bristol, at his office, on March 20, 1885, as security for one R. J. Croacher, who had been arrested upon an execution that issued out of this court on March 11, 1885, in favor of the plaintiff, "as he is administrator of the goods and estate of one Daniel B. Croacher, deceased, for the sum of $33.71, costs of suit."

At the trial in the superior court, before BARKER, J., it appeared that there was no affidavit of the plaintiff, or any one in her behalf, on the execution authorizing the arrest of said Croacher, and he was arrested by one Spooner, a deputy-sheriff, and taken before said Milliken, and not while the court was in session. It did not appear that the officer had any special instructions to arrest said Croacher. Before the arrest demand was made upon Croacher for the amount of the said execution, and payment was refused. It further appeared that plaintiff had obtained judgment upon a suit against said Croacher, as administrator, for the sum of $587.50, and that this execution was for the costs of said suit. It was admitted that Croacher did not deliver himself up for examination as required by the recognizance, and that said Milliken was special justice when he took the recognizance. The defendant objected to the execution as improperly issued, that the arrest was unlawful, and that Milliken had no authority to take and accept said recognizance; and, further, that the recognizance was void because it did not appear from said recognizance that Milliken had authority to act therein. The court ruled that the arrest was legal, that Milliken had authority to act, and that the authority need not be set forth in the recognizance. The court directed the jury to return a verdict for plaintiff, and defendant alleged exceptions. E. L. Barney, for defendant.

The arrest of Rodolphus J. Croacher upon the execution in this case was wrong. The execution authorizing the defendant's arrest was without authority. Pub. St. Mass. c. 166, §§ 6, 7. If the execution was authorized to be issued, there was no authority in law for the arrest of Croacher upon it without an affidavit. Pub. St. Mass. c. 162, § 5. The recognizance showed no authority in Special Justice Milliken to take it. This was bad, and no suit can be maintained upon such a recognizance. Tarbell v. Gray, 4 Gray, 444; Patterson v. Goldsmith, 9 Gray, 258; Pierce v. Gray, 11 Gray, 377. It is not a question of pleadings. The court ruled that there "was no need of authority to be set forth in said recognizance of his authority to act in the matter." This was wrong. See cases above cited.

W. C. Parker, for plaintiff.

The execution was properly issued against the administrator personally; judgment having been obtained against him as administrator for debt and costs, and this execution being for the costs. Pub. St. Mass. c. 166, § 8. No affidavit was necessary to authorize the arrest; the execution being for costs only, and running "against the goods, estate, and body of the administrator as if it were for his own debt." See statutes cited; also Pub. St. Mass. c. 162, § 5. No special instruction to the officer to arrest was necessary. Webber v. Davis, 5 Allen, 393, 397; Dooley v. Cotton, 3 Gray, 496. A special justice of a district court "is, in every sense, a judge thereof," (Com. v. Hawkes, 123

Mass. 525, 529;) and may take a poor debtor's recognizance as a magistrate acting in the performance of a ministerial act under authority of said section 27. Clement v. Sargent, 100 Mass. 300. And such act would not be an act of the court, but of a public officer designated in common with other officers who have no courts, such as masters in chancery and commissioners of insolvency. Pub. St. Mass. c. 162, § 27; Underwood v. Clements, 16 Gray, 169. Not being a contract, but one which might be done by any one of several public officers, it could be performed at Milliken's office or elsewhere, and while the court was not in session. Dike v. Story, 7 Allen, 349; Underwood v. Clements, supra.

HOLMES, J. The execution for costs was properly issued against the administrator personally. Pub. St. c. 166, § 8; Look v. Luce, 136 Mass. 249. And no affidavit being required to justify an arrest upon it, (Pub. St. c. 162, § 5,) it warranted the arrest without special instructions, (Webber v. Davis, 5 Allen, 393, 397; Dooley v. Cotton, 3 Gray, 496.)

It was held in Dike v. Story, 7 Allen, 349, that a special justice could take a recognizance under Gen. St. c. 124, §§ 9, 10, (Pub. St. c. 162, §§ 27, 28,) and that he could do it at other times than the regularly appointed sessions of the court. In that case, it is true, there was a disability of the justice, but we are of opinion that the authority of the special justice is not dependent upon that circumstance, or upon the provisions of Pub. St. c. 154, § 25, (Gen. St. c. 116, § 22,) as to holding court. The power is conferred, not upon the court, but upon some judge of the court, along-side of other officers who hold no court. A special justice is such a judge, and therefore is embraced in the enumeration of Pub. St. c. 162, § 27. See Clement v. Sargent, 100 Mass. 300; Com. v. Hawkes, 123 Mass. 525, 529.

Exceptions overruled.

(143 Mass. 224)


(Supreme Judicial Court of Massachusetts. Plymouth. January 6, 1887.) BAILMENT-UNDISCLOSED PRINCIPAL-MINOR-REFUSAL TO DELIVER.

A bailee of goods under a contract of bailment made while the goods were in his possession, with the agent of an undisclosed principal, who was a minor, is liable on the contract for a refusal to deliver the goods to the principal.

Contract, brought to recover of the defendant the value of certain goods, by reason of the failure of the defendant to keep the same safely, and to deliver them to the plaintiff on his demand, according to the terms and conditions of a contract alleged by the plaintiff (who at the time of the making of said alleged contract was, and at the time of bringing this action is, a minor) to have been entered into between him, by his agent, and the defendant.

At the trial in the superior court, before BARKER, J., in addition to facts, the nature of which sufficiently appear in the opinion, it appeared that said action was referred to an auditor, who, in making his report, stated at length what he understood to be the testimony. The defendant objected to the reading of the testimony, as stated by the auditor, to the jury, but the court allowed the whole report to be read for the purpose of enabling the jury the better to weigh and understand the auditor's findings. At the close of the evidence the defendant asked the court to rule, among other things, as follows: "That the case in which an undisclosed principal can sue directly upon contract made by his agent are exceptions to the general rule; that, to enable the principal so to sue, the contract should be made in his name, and the public policy modifying this general rule does not apply to contracts not for necessaries, made in behalf of an undisclosed minor principal by his agent;" that "every man has the right to elect what parties he will contract with;" that, "if the undisclosed principal be a minor, a contract not for necessaries, made

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