But, should it be held that the same rule applies in relation to personal property as to real estate, then the limitation in the case at bar is void, because it does not, ex necessitate, take effect within the term of a life or lives in being at the death of the testator. Brattle Square Church v. Grant, 3 Gray, 142; Hills v. Simonds, 125 Mass. 536; Theological Education Soc. v. Attorney General, 135 Mass. 285. The bequest to the legal heirs of a deceased nephew or niece of his or her share of the testator's estate is a good, absolute gift, and must stand, because the modifying clause is too remote. Sears v. Putnam, 102 Mass. 5; Gray, Rule against Perpetuities, §§ 233, 423, 431.

DEVENS, J. The question in this case arises on the residuary clause of the testator's will. By this he bequeathed the residue of his estate "to his nephews and nieces in severalty, to share and share alike," except William A. Foss, his brother Luther's oldest son. One-half of each portion was to be paid by the executors directly to them, respectively, or their guardians when they were under age, and the other half of such portions was to form a trust fund for the benefit of said nephews and nieces; the income to be equally divided during their lives. The will then proceeds: "At the decease of either of the said nephews and nieces, I give and bequeath such one's half portion and interest on the trust fund to his or her legal heirs; and, at the decease of all my nephews and nieces, I give and bequeath the principal of said trust fund to their legal heirs, including William A. Foss' heirs, my brother Luther's oldest son.

Lucy D. Sischo, one of the nieces having died, her daughter Peninna now seeks to have paid to her the share or the half portion held in trust previously for the benefit of her mother; the trust fund contemplated by the will having been formed. If the husband of Lucy D. Sischo has any right in the fund, that right is expressly waived in favor of the daughter, and need not be considered. It is upon the claim made by Peninna, that the trustee by this bill seeks instruction.

But for the second of the two clauses above quoted there could be no doubt that the first gave absolutely to the heirs of Lucy D. Sischo, upon her decease, her half portion as it is termed in the will, with the right of present enjoyment. It is settled that, where an absolute estate is given by bequest or devise by clear and apt words, this cannot be cut down to a less estate by subsequent words, inconsistent therewith; and such words, being repugnant to the gift originally made, are treated as of no effect. Kelley v. Meins, 135 Mass. 231. The words of the second clause cannot be construed as indicating that, while the absolute estate in the half portion of each nephew and niece is given to their legal heirs upon their decease, respectively, together with the income thereof, the actual division of the trust fund is to be postponed until the decease of the last of them. Even if this might have been done by appropriate words, such was not the object of the clause. The testator had excluded from the benefits of his will William A. Foss, one of his nephews; but the legal heirs of some of the nephews or nieces who were to take under his will might include heirs of William A. Foss. Awkwardly as it is expressed, this clause was intended to guard against any inference that, from the legal heirs of either nephew or niece, the legal heirs of William A. Foss were to be excluded. If, instead of "all," we read "each" or "every one of," in which sense the word is not infrequently, even if inaccurately, used, such intention would clearly be indicated. Nor is it any serious objection to such a construction that the words "principal of the trust fund" are used in the clause. These may properly be applied to the share or half portion of each nephew or niece included in the trust fund. The gift of the testator, as originally made, is "in severalty, and share and share alike," to his nephews and nieces, with the exclusion of William A. Foss, and such half portion of nephew or niece is treated as a distinct and individual property.

In our view, the second clause does not cut down or diminish the gift made by the first. It repeats it, for the purpose of indicating that by anything which the will may have contained, he did not intend to exclude William A. Foss' heirs from its benefits, if they were also heirs of either of the nephews or nieces.

It is suggested that the words "such one's half portion," used in the first clause, may refer to the half portion not in trust, and which might not have been paid to the first taker; that the word "interest" is contrasted with "principal," and shows that the income only was to be paid until the decease of all the nephews and nieces, when the principal was to be distributed. But the words of gift, "such one's half portion, and interest on the trust fund,' can only be construed as referring to the half portion included in the trust fund, and the interest of the nephew and niece therein, although the word "on" is used, and not the word "in," and as bequeathing such half portion, and all interest therein, to the legal heirs of the nephew or niece deceased.

The trustee should therefore be instructed that the half portion heretofore held in the trust fund for the benefit of Lucy D. Sischo should now be paid to her daughter. Instruction accordingly.

(143 Mass. 401)

FOWLER and another v. PARSONS and another.

(Supreme Judicial Court of Massachusetts. Suffolk. January 10, 1887.)

LIEN-EQUITABLE LIEN-REPLEVIN-CUSTOMS DUTIES-TENDER.

If one who claims certain goods, and intends to replevy them, stands by and knowingly allows another who honestly believes himself to be the owner to pay the customs duties upon them, he cannot maintain his action of replevin without first tendering the amount so paid. Under the circumstances there is an equitable lien for this sum.

Replevin of 42 hogsheads, 2 tierces, and 1 barrel of molasses, at the time on board the schooner Mary Ellen in the port of Boston. The defendants named in the writ were Fendley Parsons, the master of the schooner, William H. Law, the owner of the schooner, and Frederic N. Lambert, the alleged consignee of the molasses. The answer was as follows: "And now come the defendants in the above-entitled cause, and for answer to the plaintiff's writ and declaration deny that they, or any of them, unlawfully, and without justifiable cause, took the goods of said plaintiffs as alleged and described in the writ. And they further say that all said goods were the property of and belonged to the defendants, and were not the property of the plaintiffs, and the defendants were and are entitled to the possession thereof."

At the trial in the superior court, before PITMAN, J., the plaintiffs introduced evidence tending to show that the molasses replevied formed part of a cargo shipped by Fowler & Co., of Cienfuegos, Cuba, to the plaintiffs as consignees under advances on the brig Happy Return, at Cienfuegos, April 25, 1881; that on April 30th the brig put into the island of Grand Cayman in distress, in a leaking and unseaworthy condition; that said brig was condemned, and sold at auction; that said cargo was landed there, and afterwards, on May 25th and 26th, was sold by order of the master at public auction; that, at said sale, the defendant Law, either directly or through agents, purchased out of said cargo the molasses replevied, and the same was by his agent, one Thompson, shipped on the schooner Mary Ellen to Boston under invoice and consignment to the defendant Lambert. The plaintiffs introduced further evidence tending to show that such sale of the cargo at Grand Cayman was unnecessary, without authority from the owners, and unjustifiable, and was made without communication with the owners or underwriters; and that

means of communication existed. The defendants introduced evidence tending to show that the sale was necessary and justifiable.

The defendant Lambert testified that the first he knew of this cargo was in June 27, 1881, when he found the captain of the schooner waiting for him at his office in Boston; that the captain handed him the invoice, and he (witness) then went to the custom-house to enter the molasses; that he did not then know where the molasses was purchased, that there was any salvage claim, or any of the facts in regard to its leaving Grand Cayman; that he and the captain went to the custom-house, and there entered the vessel and the cargo,―he paying the duties on the molasses, amounting in all to $344.80, and giving a bond to pay any additional sum that might be found due on regauging the molasses, (the receipts for the money thus paid were produced, bearing date June 27, 1881;) that on July 30th he paid additional duties to the amount of $48.95, (a receipt for this sum was also produced;) that although the goods, at the time of the last payment, had been replevied, he made the payment because he had signed the bond, and was obliged to; that while he was paying the duties, on June 27th, there was a person at the custom-house who made some inquiries about the cargo, but did not tell him what he wanted; that he saw him two or three times at the custom-house, and he was looking at witness; that he followed witness to two or three places, but he could not swear that he was in the cashier's room when the duties were paid; that witness got a landing permit, which he gave to the captain, and then went back to his office, and then a Mr. Magoun and two other persons, one of them the same person he saw at the custom-house, came in, and demanded the cargo. They represented the American Lloyds. They then replevied the molasses at the time. They made no tender of the duties, and have never done so. The cargo was still on board the vessel. It was replevied from the hold of the vessel. No freight was paid by any one. The vessel belonged to the man who shipped the molasses, R. M. Thompson. It was in his name. On cross-examination, witness said that, when the parties came to his office, he told them, if they replevied the molasses, he should have to give it up. Witness testified: "Of course, I refused to give up the molasses at first. They asked me before the replevin, and I said I wouldn't give it up, and they replevied it. One of the parties was an officer." No other evidence was introduced by either party in regard to Lambert's acts or connection with the matter, or of the dealings or interviews of the plaintiff with him. The counsel for the plaintiffs stated in argument that the plaintiffs were willing to repay to Lambert the duties upon said molasses paid by him. The defendants requested the court to instruct the jury that "if the defendant Lambert paid the customs duties due to the government upon the molasses replevied, upon its arrival, in ignorance of any claim of the plaintiffs to title or possession, and made this payment with the knowledge of the plaintiffs, or their agents, and without objection from them, they cannot maintain this action without proof that the amount so paid has been tendered to him." The court declined to give the instruction requested, and instead of it instructed the jury as follows: "In this case the plaintiffs made no question as to their equitable duty to repay to Lambert the amount of duties paid by him, and express their readiness to do so; and it may be taken for granted that, if he had claimed such repayment before replevin, it would have been their legal duty to have tendered such payment; but the law does not compel vain and formal tenders where the conduct of the party dispenses with them; and if the jury are satisfied that the defendant Lambert made no disclosure to the plaintiffs or their agent of the amount of said duties, and made no claim whatever to the repayment, and that from his relation to the cargo, and the general and absolute refusal to surrender the same, a tender on the part of the plaintiffs would have been useless, the defendants cannot now set up the failure to make such tender as a bar to this suit. That is the law which I

give you in relation to the last prayer of the defendants." The jury returned a verdict for the plaintiffs, and the defendants alleged exceptions. C. T. Russell, Jr., for defendants.

It is well settled, to recover in a replev in suit, the plaintiff must show a general or special property in the goods, with the right to immediate and exclusive possession at the time of the commencement of his suit. Pub. St. c. 184, § 10; Wells, Repl. 94; Wade v. Mason, 12 Gray, 335: Barry v. O'Brien, 103 Mass. 521; Waterman v. Robinson, 5 Mass. 304; Johnson v. Neale, 6 Allen, 227, 229; Dawson v. Wetherbee, 2 Allen, 461. The defendants' answer puts in issue the plaintiffs' right to possession of the molasses. Chase v. Allen, 5 Allen, 599. If the jury believed Lambert's evidence, the plaintiffs were precluded from claiming possession of the molasses. The case comes within the familiar rule of estoppel in pais. Wendell v. Van Rensselaer, 1 Johns. Ch. 344, 354. For cases where the rule has been applied, see Dewey v. Field, 4 Metc. 381; Ladrick v. Briggs, 105 Mass. 508; Hinchley v. Greany, 118 Mass. 595; Griffin v. Lawrence, 135 Mass. 365; Graves v. Lake Shore R. R., 137 Mass. 33. The representation operating such estoppel may come from pure silence. Bigelow, Estop. 564; Gregg v. Wells, 10 Adol. & E. 90, 98; Pickard v. Sears, 6 Adol. & E. 469; Niven v. Belknap, 2 Johns. 573. And see Leather Manufacturers' Bank v. Morgan, 117 U. S. 96, 108; S. C. 6 Sup. Ct. Rep. 657; Morgan v. Railroad Co., 96 U. S. 716. The court refused entirely to apply this principle to the evidence, and to allow the jury to pass upon the question whether this standing by on the part of the plaintiffs, and allowing Lambert to pay the duties and assume the liability, was not such conduct as made an estoppel. But the court treated the case merely as one of lien and waiver of lien. It erred in the instruction given upon that point. Wells, Repl. § 123; Bush v. Lyon, 9 Cow. 52; Jones v. Sinclair, 2 N. H. 319; Everett v. Coffin, 6 Wend. 603, 608. The lien never was discharged. It is not claimed that the debt has ever been paid, or even tendered. The plaintiffs must show payment or tender, not merely willingness to pay, to entitle them to a replevin suit. There was no evidence of waiver of such tender by Lambert, except as inferred from his statement. He made no statement of the nature of his title or claim, but simply refused to surrender it. It is well settled "a lien is not waived by the mere omission to place the refusal to deliver or account on the specific ground of lien. The doctrine that a party shall not be permitted at the trial to assume a distinct ground of defense from that set up when a demand is made, applies only where he puts his right upon some distinct ground at the time of demand, and not when he merely omits to assert the ground relied upon at the trial." Everett v. Coffin, 6 Wend. 603; White v. Gainer, 2 Bing. 23; Boardman v. Sill, 1 Camp. 410, note; Avery v. Hackley, 20 Wall. 407, 411. It was not for Lambert to make claim to the repayment, as implied in the court's instruction. He had a lien, and could retain and assert it until the plaintiffs took the affirmative action of discharging it.

B. F. Hayes, for plaintiff.

The real issue tried to the jury was whether the general ownership of the replevied goods was in the plaintiffs or the defendants. The instruction requested was rightfully refused. Mexal v. Dearborn, 12 Gray, 336; Hudson v. Swan, 83 N. Y. 552; Newell v. Newell, 34 Miss. 400; Perkins v. Barnes, 3 Nev. 557. The circumstances of this case made it the duty of Lambert, when the demand was made for the goods, to state the measure of his claim, if any, upon them, if he considered himself as then standing in any relation of qualified ownership in the property. Mexal v. Dearborn, ubi supra; Dows v. Morewood, 10 Barb. 183; Thatcher v. Harlan, 2 Houst. 178; Hanna v. Phelps, 7 Ind. 21; Thompson v. Rose, 16 Conn. 71; Everett v. Saltus, 15 Wend. 474. It was for the jury to say whether Lambert's testimony was a bona fide explanation, and whether he refused because of a claim for repayv.9N.E.no.9-51

ment of duties. Delano v. Curtis, 7 Allen, 470; Powell v. Olds, 9 Ala. 861; Thompson v. Rose, ubi supra; Shaw v. Hall, 134 Mass. 103. See Drake v. Curtis, 1 Cush. 395, at page 414; Towne v. Fiske, 127 Mass. 125. The question of estoppel does not arise in this case. There is no evidence showing that the "plaintiffs or their agent" knew either that the duties were paid, or that landing permit had been obtained.

FIELD, J. If the goods replevied were taken from the possession of the defendant Lambert, and he had a lien upon them for money paid for customs duties, the action cannot be maintained unless this lien was discharged or waived before the action was brought. The neglect to pay the amount of the duties, or to make a tender of the amount, is not exercised because it would be useless, in the sense that, if such a payment or tender had been made, the defendant would still have refused to surrender the goods. A tender of the amount cannot be said to be useless, although the defendant does not accept it, because the plaintiffs must have the right of immediate possession in order to maintain the action; and, if a lien is not waived, it must be discharged before the plaintiffs can have this right.

The next question is whether the exceptions disclose any evidence for the jury that the defendant had a lien. If trover had been brought, the value of the goods at Grand Cayman would have been the measure of damages. But in replevin it has often been found impossible to prevent the plaintiff from obtaining the benefit of an increase in the value of the property caused by the defendant, although the defendant, in expending money upon the property, has acted in good faith. If money has been expended, it cannot be recovered unless it has been expended at the express or implied request of the other party, and except, perhaps, in the case of innkeepers, a lien upon goods cannot be created without the express or implied assent of the owner. In the case at bar, the master and the owner of the schooner would not have had, against the plaintiffs, a lien upon the goods for freight; and, if they would not, the defendant Lambert could not acquire such a lien by paying the freight. Robinson v. Baker, 5 Cush. 137; Stevens v. Boston & W. R. R., 8 Gray, 262; Clark v. Lowell & L. R. R., 9 Gray, 231; Gilson v. Gwinn, 107 Mass. 126; Storms v. Smith, 137 Mass. 201. The United States have probably a lien against the owner for duties upon imported goods in their custody, although the importation has been made by and on account of a person who came wrongfully into the possession of the goods, and the duties must be paid, if the goods are entered for consumption, and are withdrawn from the custody of the United States; but this lien is not transferred to the person who pays the duties and receives the goods. The general rule is that no lien can be im plied in favor of a person who acts adversely to the rights of the owner. Cases cited supra; Lempriere v. Pasley, 2 Term R. 485; Allen v. Ogden, 1 Wash. C. C. 174.

The defendant Lambert puts his claim, however, upon the ground that the plaintiffs, by their conduct, are estopped from denying that he had a lien, or from denying that the duties were paid for their use and at their request. The instructions given by the court are not merely that, if a tender would have been useless, the failure to make it would not prevent the plaintiffs from maintaining the action, but this involves also the question of a waiver of a tender by a general and absolute refusal to surrender the goods. The principles invoked on both sides are essentially those of equitable estoppel. Each party contends that the other neglected to speak when it was his duty to speak, whereby the other was intentionally misled into doing or omitting to do what otherwise he would not have done or omitted. These equitable principles are enforced in actions at law when they go to the whole action. Mexal v. Dearborn, 12 Gray, 336; Thompson v. Rose, 16 Conn. 71; Everett v. Saltus, 15 Wend. 474; S. C. on error, 20 Wend. 267. When the facts on which