sired. But nothing in the act of 1889 indicates any such intention, or justifies our finding such repeal by implication. The old and new legislation might well stand together. Presumptively, therefore, it was designed that it should. This presumption is, at least, not impaired by the fact that when, four years later, an amendment of the act of 1889 was found expedient, such amendment, as we have seen, took away the new privilege of the creditor, and made no reference to the old one of the debtor. The superior court is advised to render judgment for the plaintiff. The other judges concurred.

HURD v. SHELTON et al.

William H. Williams, for plaintiff.

BALDWIN, J. In 1868, Elisha Shelton died, and his will was admitted to probate. The disposing portion of it reads as follows: "To my son, Beach Shelton, I give all my estate, both real and personal, which is to go into the hands of trustees, viz. AmbroseShelton and David N. Lane until he performs certain stipulations to his brother James Shelton, accepted as portion in full the will to be absolute in my son Beach Shelton, my wish is that my son Beach pay my son James one hundred and fifty dollars ($150) a year for life and give him the best bed I leave his yearly wood standing all my apparel and a life lease of one-quarter of the dwelling house, where I now live including one-quarter of the well the old garden and land for a

9, 1894.)

WILL-CONSTRUCTION - AMBIGUOUS PROVISIONSCONDITIONS SUBSEQUENT-RIGHTS OF DEVISEES.

1. Testator gave all his estate to his son B., "which is to go into the hands of trustees,

* until he performs certain stipulations to his brother J., accepted as portion in full the will to be absolute in my son B., my wish is that my son B. pay my son J. $150 a year for life and give him the best bed I leave his yearly wood standing all my apparel and a life lease of one-quarter of the dwelling house, where I now live including one-quarter of the well the old garden and land for a wood pile and all the necessary passages there connected a settlement to be made between the said brothers without going through a court of law let the property which is or ought to be about $2,400 remain in the hands of said trustees be paid out to my most needy heirs." Such sons were his sole heirs, and such dwelling house and old well and garden belonged to B., who died 25 years after testator. During his life, B. did not pay J. the $150 yearly, but he supplied J. with apparel and support, each year, exceeding $150 in value, and gave him the use of so much of his house, etc., as met the terms of the will to J.'s satisfaction. The trustees retained and accumulated the net income. Held, that the trustees should have paid to B. the net income at the close of each year.

2. On the death of B., the obligations imposed on him by the will devolved on his estate, as the condition on which, on the death of J., it can claim the principal fund; and the absolute title of B. to accumulations of income, and the title to the principal which is defeasible on breach of the condition subsequent, passed to his administrator.

3. If the provision consisting of the concluding words of such will, with reference to a trust for the most needy of testator's heirs, was meant to be contingent on some future event, it is void for uncertainty of statement as to such contingency.

4. Such provision cannot be construed as an absolute and independent disposition of the estate, since such construction would defeat the entire scheme of the will.

Case reserved from superior court, Fairfield county; Thayer, Judge.

Action by Samuel S. Hurd, trustee under the will of Elisha Shelton, deceased, against Daniel B. Shelton and others, for the construction of such will. The facts were agreed on, and the case was reserved for the advice of the supreme court of errors.

there connected a settlement to be made between the said brothers without going through a court of law let the property which is or ought to be about twenty-four hundred dollars remain in the hands of the said trustees be paid out to my most needy heirs." His sons Beach and James were his sole heirs at law. He also left a widow, who died many years since. The dwelling house in which he lived, and the well and old garden mentioned in the will, belonged to his son Beach. His property consisted of a few acres of land worth $176, and personal estate (after payment of debts and charges) of the value of about $2,700; all of which, upon the settlement of the estate, in 1869, went into the possession of one of the trustees, the other renouncing the trust, and is now in the possession of the plaintiff. He and his predecessor in the trust, being in doubt as to their rights and duties, have accumulated the entire net income of the estate, and the trust fund now amounts to over $8,000. Beach Shelton died intestate in 1893. As long as he lived, he furnished his brother, James, every year, apparel and support amounting in value to over $150, and allowed him to occupy and use such part of the dwelling house mentioned in the will as he desired, together with the well, old garden, land for a wood pile, and all necessary passages connected with them. He always claimed that the trustee was bound to pay over $150 a year to his brother, James. The administrator of the estate of Beach Shelton has made no payments to James Shelton, and claims that the trustee should pay said annuity to the latter, and turn over all accumulations of the trust fund to the estate or representatives of his intestate.

The will in question begins by making an unqualified gift of all the testator's estate to Beach Shelton. It then adds that this is to go into the hands of certain designated trustees, "until he performs certain stipulations to his brother James Shelton, accepted as portion in full the will to be absolute in my son Beach Shelton." The testator's intent

by this language, though confusedly and inaptly expressed, is reasonably clear. He contemplated the acceptance by his son and heir James Shelton of the provision he was about to make for him as in full of his portion of the estate. This provision he refers to as "stipulations" to be performed by Beach Shelton, and until they are performed the property left to Beach is to be held by the trustees. When performed, the devise and bequest to Beach, which he describes as "the will," are to be "absolute in" him. The "stipulations" in favor of James are then thus set forth: "My wish is that my son Beach pay my son James one hundred and fifty dollars ($150) a year for life and give him the best bed I leave his yearly wood standing all my apparel and a life lease of one-quarter of the dwelling house, where I now live including one-quarter of the well the old garden and land for a wood pile and all the necessary passages there connected a settlement to be made between the said brothers without going through a court of law." It would appear from the agreed statement, upon which this reservation is based, that the two brothers must have come to such an amicable settlement as to the meaning and effect to be given, as between them, to this expression of their father's wishes, as he desired. Beach did not pay James the stipulated annuity, but instead of that, supplied him with apparel and support, every year, to the amount exceeding $150 in value, and also gave him the use of so much of his own house and its appurtenances as met the terms of the will to James' satisfaction. This course of conduct on the part of the two brothers is equivalent to an acceptance by each of the provisions of the will, and to due performance by Beach, as long as he lived, of all the obligations imposed upon him by the testator. The will, in effect, disposed of real estate belonging to Beach in favor of James, and it also gave a benefit to Beach. This cast upon him the necessity of electing whether or not to accept the benefit with its attendant burden. His election to accept, manifested by the parting with his own property for his brother's use, gave the dispositions of the will in his own favor full and immediate effect. It follows that the trustees should have paid over to Beach, at the close of each year, the net income for the year derived from the trust estate. The principal was to remain in their hands during the life of James, for until his decease the obligations assumed by Beach could not be fully performed; but not the income, the income, since they were to make no payments to James, nor was there any direction for accumulation, or any object to be gained by it, except an increase of a fund which was to come ultimately to Beach. The obligations which he assumed devolved upon his estate

at his decease, as the condition upon which, on the decease of James, it can claim the principal fund. He had an absolute title to the accumulations of income, and a title to the principal which is defeasible upon breach of a condition subsequent. Both these rights passed to his administrator, and, with them, the corresponding duty to pay the annuity to James during his life, and allow him the use of the real estate described in the will, including the right to cut his necessary firewood. It is not improbable that the concluding words of the will, having reference to a trust for the most needy of the testator's heirs, were intended to come into force should the two brothers fail to agree to carry out the provisions previously made for their benefit. If so, as they did agree, the trust has become inoperative. We think, however, that if it was meant to be contingent upon some future event, such contingency is not stated with sufficient certainty; and, on the other hand, that it cannot fairly be construed as an absolute and independent disposition of the estate, since this would defeat the entire scheme of the will, the main intent of which plainly was to make suitable and definite provision for each of the sons. The superior court is advised that the plaintiff is bound to pay to the administrator of the estate of Beach Shelton the entire net accumulations of income which were in the plaintiff's hands at the date of the decease of Beach Shelton, and that the net income thereafter accrued and to accrue will belong and be annually payable to such administrator, provided he and the widow and heirs of Beach Shelton continue to fulfill the obligations imposed upon said Beach Shelton in said will, as hereinbefore described; and that, of the principal of said trust fund, the real estate is equitably vested in the widow and heirs of Beach Shelton, subject to said trust, and upon a condition subsequent for the performance of said obligations; and the personal estate is equitably vested in said administrator, subject to said trust, and upon a condition subsequent for the performance of said obligations; and that, upon the decease of James Shelton, if said conditions have been duly kept, said trust will cease, and said trust estate should by said trustee be paid and delivered to the widow and heirs. or administrator of Beach Shelton, as above specified; but, if said conditions in any year have been or shall be broken, then said James Shelton will have an equitable lien upon said trust fund remaining in the hands of the plaintiff to the extent of his loss by such breach of condition; and that, should said breach continue until the death of said James Shelton, then the trust fund remaining at such time in the hands of the plaintiff or his successors will be intesta te estate of said Elisha Shelton. The other judges concurred.

NEW HAVEN AND FAIRFIELD COUNTIES v. TOWN OF MILFORD. Supreme Court of Errors of Connecticut. July 9, 1894.)

"BRIDGES"-CONSTRUCTION OF TERM-APPROACHES THERETO.

The word "bridges," as used in Pub. Acts 1889, c. 214, p. 129, authorizing the owners of bridges across the river between certain counties to transfer their interests therein to those counties, and making it the latter's duty thereupon to take the management "of said bridges," and to operate them as free public bridges, providing for the apportionment of the expenses incident thereto between such counties, but not authorizing them to purchase land for approaches, or to take it by condemnation proceedings, refers only to bridge structures, and is exclusive of approaches thereto.

Case reserved from superior court, New Haven county; Prentice, Judge.

Action by the counties of New Haven and Fairfield against the town of Milford, to determine the legal obligations of plaintiffs and defendant with reference to building and maintaining the approach to a bridge over the Housatonic river between the plaintiff counties and in the line of a highway in the defendant town. The cause was reserved on an agreed statement of facts. Judgment for plaintiffs.

William L. Bennett and Tilton E. Doolittle, for plaintiffs. William B. Stoddard and Stiles Judson, Jr., for defendant.

ANDREWS, C. J. This is an amicable suit brought to the superior court in New Haven county, and reserved for the advice of this court. By an act of the general assembly (chapter 214, p. 129, Pub. Acts 1889) the owners of all bridges across the Housatonic river between the counties of New Haven and Fairfield were authorized transfer all their right, title, and interest in and to the stock, property, and franchises in the said bridges to the said counties. The said act then further provided as follows:

"Sec. 4. Upon such transfer being made to said counties, it shall be the duty of said counties to take the charge, management, and control of the said bridges, and to keep, maintain, operate, and control them as free public bridges.

"Sec. 5. The expense of maintaining and repairing said bridges shall be paid in equal proportions by each of said counties, by orders drawn by the county commissioners of said counties upon their respective treasurers, and the county commissioners of said counties, acting as a joint board, shall have the control and management of the said bridges."

The matter of the present suit concerns "Washington Bridge," so called,-a bridge across the Housatonic river between the town of Milford, in New Haven county, and the town of Stratford, in Fairfield county. At the time said act was passed said bridge belonged to a corporation known as the "Washington Bridge Company." Thereafter

the owners of all the stock of said corporation conveyed it to said counties pursuant to that act, and the said counties became the sole owners of all the rights, title, and interest in the stock and in the property owned by said corporation, and have since that time maintained the said bridge as a free and public one. In the year 1892 it became necessary to erect a new bridge over said river, and the said counties have now erected a new iron bridge near the old bridge, but a few feet north of it, at an expense of $90,000. Said new bridge is several feet higher than the old bridge and the adjoining land, and it is now necessary to purchase land for a new approach for said bridge, and to expend a considerable sum of money in building the approach to said new bridge. The approach east from said new bridge will be entirely within the town of Milford. The claims of the parties are these: The aforesaid counties claim that said approach in said Milford is no part of said bridge, and that the said counties are not bound to erect or maintain the same, but that it is the duty of said town of Milford to erect and maintain the said approach. The said town of Milford claims that said approach or causeway is a part of said bridge, and that it should be built and maintained by the said counties. Counsel for the town of Milford rest their argument mainly on the meaning of the word "bridge," as given in the dictionaries, and in the various decided cases which they have cited. We are not disposed to withhold anything from the force of their argument. But we think there is in this case another consideration which must be controlling; and that the case depends, "not upon any necessary legal meaning to be given in all cases to the word 'bridge,' but upon the meaning of that word as it was used in the act referred to; upon the intention of the legislature as evidenced by all the words used, and not simply by one word." Phillips v. East Haven, 44 Conn. 31. The policy of this state has always been to impose upon towns the duty and the burden of building and maintaining all necessary highways and bridges within their respective limits, except where such duty belonged to some particular person. Necessary bridges between towns are to be built and maintained at their equal expense. The statutes now in force (Gen. St. §§ 2666, 2667) are but the continuance of similar ones which have been in existence from the earliest times. This policy has been pursued because it has been supposed to be the most equitable as well as the most convenient method by which the expense and care of supporting highways and bridges could be distributed. The same policy made it the duty of the selectmen in each town to supervise the highways and bridges in their towns. The statute of 1889 was, in respect to the bridges across the Housatonic river, between the county of New Haven on the one side and the county of Fairfield on

the other, a departure from this ancient pollcy. It puts the building and maintaining these bridges upon the two counties, and the duty to supervise them upon the county commissioners of the two counties as a joint board. The selectmen of a town have a much more intimate connection with the people of that town than do the county commissioners of a county with the people of that county. The selectmen are elected by the people of their town, and are directly responsible to them. The county commissioners are not so elected, and have no such responsibility. Long experience has shown that highways and bridges are much better taken care of, and at a less expense, where the persons upon whom rests the duty of taking the care are directly accountable to that community which must bear the expense of the care, and which is made liable if the proper care is not taken, than in any other way. It cannot be supposed that the legislature, by the act of 1889, intended to depart from the established policy any further than the words of the statute require. Pro tanto that statute is a repeal of the general statute because it is inconsistent with the general one. Such a repeal is never extended further than the inconsistency compels. The case shows that "it is now necessary to purchase land for a new approach to said bridge." But no authority is given in the act to the counties, or to the county commissioners, to buy "land." All that the counties took by the transfer to them-all that they had power to take by the act was whatever they took under the term "bridge." If that term could be held to include the approach to the old bridge, it certainly could not include the power to acquire other lands for a different approach to another bridge. Nor is any power conferred on them to take land by condemnation for such approach. The approach to a bridge may sometimes be regarded as a part of the bridge itself, and sometimes as a part of the highway leading to the bridge. The circumstances of each case must control. In this case, if the approach is regarded as a part of the highway leading to the bridge on the Milford side, there is ample power in that town to take the land for that purpose. Taking all the circumstances together, we think the legislature intended to confer authority on the counties to take charge only of the bridge structure, excluding the approach. The superior court is advised to render judgment sustaining the claim of the counties. The other judges concurred.

In re CURTIS et al.

(Supreme Court of Errors of Connecticut. July 9, 1894.)

AWARD OF ARBITRATORS POWERS OF COURT IN REFERENCE THERETO-PAROL EVIDENCE-ADMISSIBILITY-SETTING ASIDE AWARD-GROUNDS.

1. By implication, Gen. St. § 1203, providing for the return to and acceptance by the v.30A.no.18-49

court or an award of arbitrators, confers upon it also the power to refuse to accept it.

2. The impeachment of an award of arbitrators for any cause should be made by remonstrance to its acceptance by the court to which it is returned.

3. In the absence of such a requirement in the articles of submission under which an award of arbitrators is made, there need be no finding by them of the facts on which it is based.

4. Parol evidence is admissible to show the contemporaneous understanding of the parties to a written contract of the words, "to work a street," as used therein.

5. Where there is no allegation that the arbitrators failed to act on all the claims submitted, or that they undertook to act on some not submitted, a court of equity will not set aside their award except for partiality and corrup tion in the arbitrators themselves, a mistake in the principles upon which they made it, or fraudulent practices in reference to it by the parties themselves.

Appeal from superior court, Fairfield county; Shumway, Judge.

Proceedings by Lewis F. Curtis, in the nature of a remonstrance against the acceptance of the award of arbitrators appointed in an agreement between himself and Samuel D. Castle, afterwards made a rule of court, to pass upon their claims against each other with reference to certain realty in the city of Bridgeport. From an order sustaining a demurrer to the allegations of his remonstrance, and a judgment against him, remonstrator appeals. Affirmed.

Allan W. Paige and George P. Carroll, for appellant, Lewis F. Curtis. Alfred B. Beers, for appellee, Samuel D. Castle.

ANDREWS, C. J. Section 1203 of the General Statutes provides that when any persons have submitted any controversy existing be tween them to the arbitrament of certain persons by them named, on their desiring such submission to be made a rule of court, the same may be entered of record, and a rule made that the parties shall submit to and be finally bound by such arbitration; and it is further provided that, "the award of the arbitrators being returned to and accepted by the court, judgment shall be rendered thereon for the party in whose favor the award is made, to recover the sum awarded to be paid to him, with costs; and execu tion shall be granted," etc. The acceptance of an award by the court to which it is returned, in order that it may become the basis of a judgment, undoubtedly requires an exercise of the judicial will of the court in its favor. "To accept" means to receive with approval; to adopt; to agree to. Unless the award does receive such favorable action from the court, no judgment upon it can be rendered and no execution can issue. In cases where there is no objection, such favorable action would be given almost as a matter of course. The duty imposed on a court in the acceptance of the award of arbitrators is closely similar to the duty in the accept ance of the report of a committee, or of an auditor, or of a referee. The same word is

used by the statutes, and the duties imposed must be substantially the same. That arbitrators are not officers of the court, as are committees, does not change the power or the duty of the court in this respect. The purpose of the acceptance in either case is the same,-to establish the award in the one case, and the report in the other, as the judg ment of the court. In most of the cases where courts are authorized to accept the report of a committee, or other like board, the power is expressly given to reject it for cause, as in the case of a highway committee. Section 2715. But the power to accept would seem to carry with it the power to refuse to accept. The former implies the latter. In re Clinton Oyster Ground Committee, 52 Conn. 8; Stebbins v. Waterhouse, 58 Conn. 370, 20 Atl. 480. "Where a submission is made by rule of court, it is competent for the party aggrieved by it, when it is returned to court, and before acceptance, to impeach it, not only for apparent defects, but extrinsic causes. In the case of defects apparent on the award, he can only question it before the acceptance; but if he should not object to it for extrinsic causes before acceptance, especially if he had no knowledge of their ex istence, he may, after acceptance, file his bill in equity to be relieved against it, on the same ground as where the submission is not by rule of court." 1 Swift, Dig. top p. 480. The rule so stated has been followed in this state for many years. Parker v. Avery, Kirb. 353; Lewis v. Wildman, 1 Day, 153; Halsey v. Fanning, 2 Root, 101; Belton v. Halsey, 1 Root, 221; Bray v. English, 1 Conn. 498; Fisher v. Towner, 14 Conn. 26.

This rule requires that for defects apparent on the award the parties can obtain relief only before the acceptance, unless they are such as absolutely to deprive the court of jurisdiction; but for extrinsic causes it permitted a party to obtain relief after the acceptance. As, since the practice act, parties are enabled to obtain equitable and legal relief in the same action, there is no reason why a party who seeks to impeach an award for any cause, whether it be apparent on the award or not, should not do so by way of remonstrance to the acceptance. We think this is the better practice, and the one which now ought to be followed. Arbitration is an arrangement for taking and abiding by the judgment of selected persons in some disputed matter, instead of carrying it to the established tribunals of justice; and is intended to avoid the formalities, the delay, the expense, and vexation of ordinary litigation. When the submission is made a rule of court, the arbitrators are not officers of the court, but are the appointees of the parties, as in cases where there is no rule of court. In either case the submission names the disputed matter upon which the arbitrators are to adjudge, and often prescribes the principles according to which they are to proceed, and the rules they are to follow in their de

cision. The submission in the present case does this in an ample manner. It provides that the arbitrators "shall proceed upon the principle of equity, in hearing the matters in dispute and making their award; it being the desire of both parties that the matters in dispute between them shall be equitably settled and adjusted so each may have all that is equitably due to him from the other." Counsel for the appellant, in their brief, speak of this designation of the authority given to the arbitrators as a limitation. We do not so read it. To us it seems rather a liberal and highly creditable grant of power. In hearing the matter committed to them, and in making their award, the arbitrators are commanded to act upon the principles of equity, to the end that each of the parties may have from the other all that he is equitably entitled to. This is not "equity" in any narrow or limited meaning. It is "equity" in its broadest and most generous sense. It means good conscience; fair dealing; justice. It is in the spirit of the precept "to live honestly, to injure no man, and to render to every man his due." It is the golden rule, to do by others as we would that others should do by us. It is in the light of this direction to the arbitrators that we are to inquire whether their award should have been set aside for any of the reasons alleged in the remonstrance.

It is to be observed that in the remonstrance the appellant does not charge any willful or intentional misconduct to the arbitrators; nothing in the nature of fraud, or corruption, or of partiality. He seems rather to have studiously avoided any such charge. He asks the court not to accept the award for the reasons stated, "in respect to which said arbitrators erred and acted improperly in a legal sense." The reasons of remonstrance are not entirely harmonious. In some respects, indeed, they are inconsistent. And they do not admit of any very accurate classification; but, in a general way, they may all be brought into these three classes: First. That the arbitrators did not make, and refused to make, a finding of the facts on which they based their judgment. If within the term "finding of facts" is inIcluded a statement of the amounts found due on each of the several claims of the parties, then to this class may be referred the 1st, 2d, 3d, 4th, 5th, 6th, 7th, 10th, and 11th reasons of the remonstrance. Second. That the arbitrators erred in admitting parol testimony to vary a writing. To this class may be referred the 8th, 9th, 12th, 13th, and 15th reasons. Third. That the majority of the arbitrators did not consult with the minority in coming to their conclusion as to some parts of the award. Under this head fall the 16th and 17th reasons. The 14th reason does not come into either of these classes.

There is no rule of law that requires arbitrators to make a finding of facts in the case on which they decide, nor does the submis