At this point the defendant excepted, and the court, without directly ruling on the exception, remarked that he thought it was a very dangerous argument; whereupon plaintiff's counsel withdrew it on the advice of the court. The matter was then dropped and was not again referred to. As there was no evidence in the case tending to show that the whistle was or was not blown upon that occasion, or that the bell was or was not rung, it was not competent for counsel in argument to state that those warnings were not given, as a basis for the inference that it was a habit or custom of the defendant to omit those precautions. The interrogative form calling the attention of the jury to the assumed fact was hardly less objectionable than an affirmative statement would have been. Demars v. Co., 67 N. H. 404, 407, 40 Atl. 902; Holman v. Railroad, 76 N. H. 496, 84 Atl. 979. As it does not appear that the jury were not influenced in returning a verdiet for the plaintiff by the prejudicial suggestion of a fact not in evidence, and as it is not found and is not a necessary conclusion that the court and the parties understood that the plaintiff's retraction cured the error (Felch v. Weare, 66 N. H. 582, 583, 27 Atl. 226; Palmer v. Dimick, 77 N. H. 565, 94 Atl. 268), the exception must be sustained upon the record as it now stands. If the plaintiff should procure an amendment of the case to the effect that the trial, as a matter of fact, was not rendered unfair by the illegitimate argument, the exception will be overruled. Bullard v. Railroad, 64 N. H. 27, 36, 5 Atl. 838, 10 Am. St. Rep. 367. Other exceptions were taken by the defendant in the course of the trial, which have not been argued by its counsel and which do not appear to be tenable. The result is that the exceptions to the denial of defendant's motion for a verdict and to the evidence are overruled, and the exception to the argument of plaintiff's counsel is sustained. Upon the record as it stands, the order must be: Verdict set aside. All concurred. (78 N. H. 343) GALLEHER et al. v. O'GRADY et al. (Supreme Court of New Hampshire. Hillsborough. Feb. 16, 1917.) 1. GUARANTY 28- CONSTRUCTION UTES GOVERNING. STAT the premises for the construction of a street, giving the city notice of the tenant's rights, and the city entered upon the premises, and the tenant did not resist, there was an "eviction," and the tenant was not liable for the rent; the eviction being the act of the landlord. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 695, 697, 700, 702. For other definitions, see Words and Phrases, An action on the contract of guaranty for the payment of rent cannot be maintained, if the tenant proves that he has been evicted from even a part of the premises by the landlord. [Ed. Note. For other cases, see Guaranty, Cent. Dig. § 91.] 4. LANDLORD AND TENANT 172(1)-RIGHT TO RENT-EVICTION. Where, after leasing property, the landlord by a writing released to the city a portion of the premises for the construction of a street, giving the city notice of the tenant's rights, the agreement containing the provision that the building should not be disturbed during the term of the lease, such express reservation excluded a construction that the city did not have the immediate right to enter, so that, when the city did enter, there was an eviction. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 695, 697, 700, 702.] 5. LANDLORD AND TENANT TO RENT-EVICTION. ~172(1)—RIGHT ing a business building, but the rear part of Where the landlord leased premises containthe lot, containing over 2,000 square feet of land, was vacant, and he thereafter released one-fifth of such land to the city to build a street, the city paying him about $10 a square foot, the taking deprived the tenant of a substantial part of what he had rented, and he was therefore not liable for rent. [Ed. Note. For other cases, see Landlord and Tenant. Cent. Dig. §§ 695, 697, 700, 702.] Transferred from Superior Court, Hillsborough County; Sawyer, Judge. Assumpsit by Daniel C. Galleher and another against Michael H. O'Grady and another. Transferred from the Superior Court on plaintiffs' exception to order directing verdict for defendants. Exception overruled. Manchester, for plaintiffs. Doyle & Lucier, Taggart, Burroughs, Wyman & McLane, of of Nashua, for defendants. PEASLEE, J. The defendants were guarantors for one Higgins upon his liability to the plaintiffs to pay rent under a written lease of real estate in Springfield, Mass. The property consisted of a hotel at the corner of Main and Cross streets, and land in the rear, fronting on Cross street and inclosed by a board fence. During the term Under a lease of real estate in Massachusetts, of the lease, the plaintiffs executed a conthe rights of the parties are determined by Mas- veyance or release to the city as follows: sachusetts law, although the action on the rent guaranty contract was brought in New Hamp-street, we will pay to the said city, upon the If the city shall lay out said Cross betterments. completion of the work, the sum of $3,000 as * The said city shall pay to us for the strip of land to be taken from our real estate on the northerly side of said Cross street, according to the line shown on said plan, at the rate of $1.500 per front foot as measured on the easterly line of said Main street, ** shire. [Ed. Note.-For other cases, see Guaranty, Cent. Dig. § 29.] 2. LANDLORD AND TENANT ~172(1)—“EVICTION. Where, after leasing property, the landlord by a writing released to the city a portion of * * 本 * * said land to include all now owned by us on the Thereafter the city tore down the fence and occupied the land included in the above description, but did not disturb the building, except a veranda at the rear. Higgins rebuilt the fence on the new line, and continued to occupy the balance of the premises for some months. During this time he failed to pay the rent. [1] The lease was a Massachusetts contract, and the rights of the parties are determined by the law of that commonwealth. The question presented is whether, under that law, there is evidence in the case from which it could be found that the taking of the land under the plaintiffs' agreement with the city did not amount to an eviction. "This action cannot be maintained if the defendant proves that he has been evicted from a part of the demised premises by the plaintiff. In such case no recovery can be had on the covenant to pay rent, because the defendant has been deprived of the beneficial enjoyment of a portion of the estate by the tortious act of the lessor, and the covenant, being entire, cannot be severed or apportioned, so as to allow the plaintiff to recover a part of the rent reserved by the lease. Shumway v. Collins, 6 Gray, 232." Leishman v. White, 1 Allen, 489. "His eviction by the landlord from part of the premises suspends the entire rent, because the landlord 'shall not so apportion his own wrong as to enforce the lessee to pay anything for the residue.' Hall, C. J., in Hodgkins v. Robson, 1 Ventr. 276, 277." Royce v. Guggenheim, 106 Mass. 201, 202, 8 Am. Řep. 322. These authorities dispose of the plaintiffs' contention that the tenant was still liable for the rent because he remained in possession. He did not remain in possession of the whole premises. The cases holding that the tenant is still liable are those where the attempted ouster is resisted, and the tenant still holds the property in spite of the landlord's illegal efforts to retake it. They have no application to the situation created by an actual eviction from a part of the premises. [4] The argument that the agreement with the city can be construed to reserve all the tenants' rights under the lease is not well founded. The document is in terms a conveyance of a right to enter at once, and the express condition that the building shall be allowed to remain as at present until the expiration of the lease negatives any implied reservation of other rights. [5] It is also claimed that it could have been found that the land taken from the lessee was not a substantial part of the prem [2] It is argued that, because the lease is referred to in the agreement, therefore the city had notice of the tenants' rights, which were protected because of such notice. But the question here is not whether the tenant might have resisted the attempted eviction. It is rather whether he was put out of possession by the landlord "or by his authority." McCall v. Insurance Company, 201 Mass. 223, 87 N. E. 582, 21 L. R. A. (N. S.) 38. Although the city had notice of the lease, yet the landlord undertook to transfer to it authority to enter upon and occupy the premises, and therefore there was no eviction. ises, subject only to the limitation that the building should not be disturbed during the term of the lease. Entry upon the open land under this conveyance was clearly by authority of the landlord. It was his act, and constituted an eviction from the part of the premises so entered upon. It may well be that the entry of the city was wrongful as against the tenant. So is every eviction. If the tenant had so elected, he might have resisted the entry; but he was not obliged to do so. Having yielded to the tortious act, and it conclusively appearing that it was done by authority of the lessor, the usual legal result follows. [3] It is also said that the final abandonment of the premises by the lessee was not because of the eviction, but because he could not pay his rent. The facts as to this matter are immaterial in this suit. This is not an action to recover for the reasonable value of the part of the premises the tenant continued to occupy (Meredith Mechanic Association v. American Twist Co., 66 N. H. 539, 30 Atl. 1119), but upon the guaranty of the rent reserved in the lease. Unless an action for the rent can be maintained the plaintiffs The cases discussing what is a substantial interference with the tenant's enjoyment of the premises are those where the eviction is constructive. But, assuming that the same rule would apply to a case, like the present one, where the landlord, or those acting by his authority, took actual physical possession of a part of the premises, and turned the tenant out, it must still be held that there was an eviction. The lot in the rear of the buildings was used for storage and other purposes to a greater or less extent. It contained between 2,000 and 3,000 square feet of land, and about one-fifth of this was taken. It was located in the thickly settled part of the city, and was paid for by the city at the rate of something like $10 a square foot. No reasonable man could find that such a taking did not deprive the tenant of a substantial part of what he had hired. Upon such facts, the eviction is established as a matter of law, and there is nothing for the jury to pass upon. Smith v. Tennyson, 219 Mass. 508, 107 N. E. 423, Ann. Cas. 1916B, 121. There was no error in the ruling of the superior court directing a verdict for the defendants. (78 N. H. 363) SIMONEAU v. KEENE ELECTRIC RY. et al. tiff's witnesses to be asked on cross-examination whether he considered Cota's horse a good safe driving horse is not tenable. The (Supreme Court of New Hampshire. Cheshire. question did not call for expert opinion evi March 6, 1917.) 1. EVIDENCE 471(2)-OPINION EVIDENCEDISPOSITION OF HORSE. In an action for injuries caused by a runaway horse, it was not error to admit evidence that witness considered the horse a safe driving horse, since that was not expert opinion evidence, but a statement of a fact, based on observation of the horse's peculiarities, which could not be stated to the jury so as to enable them to form an independent conclusion on the point in issue. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2150.] 2. TRIAL 260(8) INJURIES FROM RUN AWAY-REQUESTED INSTRUCTIONS. In an action for damages for injuries caused by a horse, which became frightened at a street car and ran away, it was error to refuse a requested charge that if the horse was afraid of street cars to such an extent that a man of ordinary prudence would not have driven him in the vicinity of the cars, and defendant did drive him about the street cars, from which the injury resulted, defendant is liable unless plaintiff was contributorily negligent, though the court had charged the jury that one who drove a horse which was so unruly and dangerous that no prudent man would attempt to drive him on the street would be responsible for whatever damage was caused, since the charge given did not specifically apply to the fact that the horse became frightened at a street car. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 657.] Transferred from Superior Court, Cheshire County; Chamberlin, Judge. Action on the case by Alphonse Simoneau against the Keene Electric Railway and another. Verdict for defendants, and cause was transferred by the Judge of the Superior Court, on exceptions to evidence and to the court's refusal to charge as requested. Exception to the evidence overruled, and exception to the refusal to charge sustained, and new trial granted. Case for negligence. Trial by jury, and verdict for the defendants. The evidence tended to show that on the date of the accident the plaintiff was working in a ditch on Marlboro street in Keene; that the defendant Cota was driving his horse on the street when, upon the approach of a street car, the horse became nervous, and finally upset the carriage and ran away, knocking the plaintiff down and inflicting the injuries complained of. The plaintiff excepted to certain evidence which was admitted by the court, and to the refusal of the court to charge the jury as requested. Other facts appear in the opinion. Benton & Pickard, of Keene, for plaintiff. Charles H. Hersey and Joseph Madden, both of Keene, for defendants. WALKER, J. [1] The exception to the ruling of the court permitting one of the plain dence, but for the statement of a fact as to the disposition of the horse for safety as a driving horse, so far as it appeared to the witness. Presumably he had observed the behavior of the horse when being driven, and from what he saw regarded him as a safe or unsafe horse. All the peculiarities of the horse's maneuvers it would hardly be possible for him to state to the jury, so that they could form an independent conclusion upon the point in issue. From necessity such evidence is admissible and its use is fully justified upon the ground that it is the best evidence obtainable in view of the circumstances. Whittier v. Franklin, 46 N. H. 23, 88 Am. Dec. 185; State v. Pike, 49 N. H. 414, 426, 6 Am. Rep. 533; Darling v. Westmoreland, 52 N. H. 401, 403, 13 Am. Rep. 55; Hardy v. Merrill, 56 N. H. 227, 22 Am. Rep. 441. [2] The plaintiff requested the court to charge the jury that if the horse was afraid of street cars to such an extent that a man of ordinary prudence would not have driven him in the vicinity of the cars, and Cota did drive him about street cars, and this accident resulted from that act on his part, Cota is liable unless the plaintiff was guilty of contributory negligence. This request was refused, except so far as it was covered by the following quotation from the charge: not referring to this one-may be so vicious, so "You may see that a particular horse-I am unruly and dangerous, that no prudent man would attempt to drive him about on the streets, whatever damage was caused. and if a man did, he would be responsible for Whether this horse falls into that class on the evidence, I will submit to you." The plaintiff claims that the request which limits the dangerous character of the horse to fright caused by street cars was not given in the charge. The issue was whether Cota's horse was so unmanageable when near street cars that men of ordinary prudence, having knowledge of that characteristic of the horse, would not have driven him in the vicinity of the street cars, as Cota did. If technically it might be said that the general statement in the charge included the specific application of the law to the evidence in the case as expressed in the request, the question remains whether it clearly appears that the jury understood the requested instruction was, in substance, given, and they were authorized to return a verdict accordingly. The fairness of a trial requires that the charge shall inform the jury what the law is in its application to the case, when a proper request therefor is made. Whatever construction might be given to the language of the court by one skilled in dialectics, it is more probable than otherwise that the jury lows: did not understand the theory of the request man. The question presented arises under was included in the general charge. The ap- the fourth clause of the will, which is as folplication of the law to the evidence tending to show that the horse was excessively frightened and became unmanageable when in the presence of street cars should have been specifically pointed out in the charge in order to insure a fair trial. It there are cases seemingly in conflict with this view of the law of procedure under similar circumstances (Spalding v. Brooks, 58 N. H. 224; Phoenix Ins. Co. v. Clark, 59 N. II. 345; Fogg v. Moulton, 59 N. H. 499; Rublee v. Belmont, 62 N. H. 365; Bond v. Bean, 72 N. H. 444, 57 Atl. 340, 101 Am. St. Rep. 686; s. c., 228 Briefs and Cases, 745, 749, 775; Chase v. Chase, 66 N. H. 588, 592, 29 Atl. 553; Piper v. Railroad, 75 N. H. 228, 235, 72 Atl. 1024), they cannot be followed to the extent of overruling the plaintiff's exception to the refusal of the court to charge as requested. Exception to evidence overruled. Exception to the charge sustained. New trial granted. All concurred. (78 N. H. 322) CLYDE v. LAKE et al. (Supreme Court of New Hampshire. 1. WILLS ough. Jan. 2, 1917.) Hillsbor "Fourth. All the rest and remainder of my estate, whether real or personal, that I may be possessed of at my decease, I give, bequeath and devise to George W. Clyde, of said Hudson, in trust, for the following purposes. So much of the interest or income, or if necessary, a part of the principal, to be used by said trustee for the support of my said son Andrew N. Freeman, meaning that said trustee shall invest such funds as may come into his hands as a part of my estate, and at his discretion may use the same for the comfortable support of my said son, Andrew, for board, clothing, medical attendance or medicine, or any other thing that may be necessary or proper for his welfare and comfortable support. But such trustee shall not pay to said Andrew any of the money of my estate or shall furnish him any intoxicants except for medicinal purposes, when ordered by a respectable physician." Mrs. Freeman died April 21, 1904, and Andrew October 31, 1915. The administrator of her estate upon the settlement of his account turned over to the trustee the balance in his hands, which the trustee used for the support of Andrew until his death. Upon the settlement of the trust it appeared that the unexpended balance amounted to $3,441.65. This sum is now claimed by each of the defendants. George W. Clyde, of Nashua, pro se. Foster & Lake, of Concord, for defendant 449-PRESUMPTION-INTESTACY. Lake. John J. Doherty, of Concord, pro se. In the absence of any clear evidence tending to show a purpose of intestacy, the presumption is that testatrix intended that all her estate should pass by the will. WALKER, J. By the residuary clause of the will it is apparent the testatrix intend [Ed. Note.-For other cases, see Wills, Cent.ed to provide for the reasonable support of Dig. § 965.] her son. This was her controlling purpose 2. WILLS 682(2)—ConstrUCTION-ESTATES in creating a trust fund and authorizing the CREATED-TRUST-DEATH OF BENEFICIARY. Where testatrix gave the residue of her estate to a trustee to use the income, or, if necessary, a part of the principal, for the support of the son of testatrix, but not to pay any of the money to the son, with no provision for disposition of the balance of the principal after the death of the son, the residue vested in the son, subject to the discretionary control of the trustee during his life, and after his decease what was left became a part of his estate. [Ed. Note. For other cases, see Wills, Cent. Dig. 88 1607-1611.] trustee to use the same for the comfortable She omitted to use lansupport of her son. guage indicative of a purpose to specifically limit his interest in the trust to such part as the trustee might in his discretion appropriate to his support and to dispose of the unexpended balance remaining upon the son's death to other beneficiaries. It is not probable that she intended to leave what was not required for his support undisposed of by her will, or to die intestate in regard to it. Transferred from Superior Court, Hills- She understood that she was disposing of borough County; Branch, Judge. Bill in equity by George W. Clyde, trustee, against Harry F. Lake, administrator, and another, to determine the right to a fund in the hands of plaintiff. Case transferred by the superior court without ruling. Plaintiff advised to pay the fund to defendant J. Joseph Doherty, as administrator of the estate of Andrew N. Freeman. Case discharged. "all the rest and remainder of my estate," and not that she was leaving a considerable portion of it undisposed of. [1] In the absence of any clear evidence tending to show a purpose of intestacy, the presumption is that she intended that all of her estate should pass by her will. Kennard v. Kennard, 63 N. H. 303, 311. [2] It follows that that portion of her estate covered by the residuary clause vested Bill in equity by the plaintiff, as a trustee upon her decease in her son whom she deunder the will of Annie M. Freeman, against sired to provide for, subject to its discretionLake, as the administrator de bonis non of ary control by the trustee during the son's Mrs. Freeman's estate, and against Doherty, life, and after his decease the remainder beas the administrator of Andrew N. Freeman's came a part of his estate. The mere fact estate, Andrew being the son of Mrs. Free- that a trustee was appointed to manage the [Ed. Note.-For other cases, see Wills, Cent. Dig. 88 1616-1618, 1620.] 3. WILLS 527-RESIDUARY DEVISE-CONSTRUCTION-REVERSIONARY INTERESTS. estate for the son's benefit did not deprive | from the surplus income was a part of the inhim of his interest in it or terminate the come of the residuum of testator's estate to be same upon his death, for the reason that the paid directly to daughter. testatrix has left no sufficient evidence of such a purpose. The result is the same as it would be if she had given the property directly to her son, subject to the condition that during his lifetime it should be managed for his benefit by a trustee or a testamentary guardian appointed in the will. The fact that the legal title is held by the trustee is not of controlling importance upon the question of the intention of the testatrix. In Sawyer v. Banfield, 55 N. H. 149, a testator gave to a trustee a sum of money in trust for the testator's wife "to keep, use, and dispose of for the benefit of my said wife according to the best of his discretion as her trustee," and it was held that the gift was an absolute one to her, Smith, J., remarking: A residuary devise, in the ordinary terms, carries with it not only the property of the testator in which no interest is devised or bequeathed in other portions of the will, but also all reversionary and contingent interests which are not otherwise disposed of. [Ed. Note.-For other cases, see Wills, Cent. Dig. 8 1140.] 4. WILLS 684(9)—LIFE ESTATE IN INTEREST FROM BONDS CONSTRUCTION. If a testator leaves bonds to trustees, with directions to pay net income to certain persons for life, remainder over, that the bonds are worth a premium, will not warrant trustees in retaining any portion of the net income for benefit of remaindermen. [Ed. Note.-For other cases, see Wills, Cent. Dig. § 1627.] "It is not a devise of the income or of some definite part for her benefit with remainder over to some third person; but the trustee can dis-obscot County, in Equity. pose of the whole principal sum, if that be necessary, for her benefit, during her life. Whatever sum may be left at her decease goes to her heirs, and not to the residuary legatees named in the will." Report from Supreme Judicial Court, Pen See, also, Rollins v. Merrill, 70 N. H. 436, 48 Atl. 1088; McAllister v. Hayes, 76 N. H. 108, 113, 79 Atl. 726; Sparhawk v. Cloon, 125 Mass. 263. Cases like Wentworth v. Fernald, 92 Me. 282, 42 Atl. 550, and Minot v. Tappan, 127 Mass. 333, relied upon by the administrator of Mrs. Fernald's estate, are clearly distinguishable from the case at bar. In those cases there was a disposition of the remainder of the estate after the death of the cestui que trust. The trustee is advised that the balance of the trust fund in his hands is payable to the administrator of the estate of Andrew N. Freeman. Case discharged. All concurred. (116 Me. 127) HIGGINS et al. v. BECK et al. (Supreme Judicial Court of Maine. March 31, 1917.) 1. WILLS RESIDUUM. 630(13)-CONSTRUCTION-GIFT OF A gift of a legacy, or a share of a residue, to be paid at the death of a particular person, vests in the legatee at the death of the testator, and the time applies only to the payment. [Ed. Note.-For other cases, see Wills, Cent. Dig. 88 1486, 1487.] 2. WILLS 684 (3)-DEVISE OF RESIDUUMCONSTRUCTION. Bill for construction of a will by Florence E. Higgins and others against Elizabeth E. Beck and others. On report. Decree below ordered drawn in accordance with opinion. Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, and PHILBROOK, JJ. George H. Worster, of Bangor, for complainants. Ryder & Simpson, of Bangor, for Arthur L. Thayer, of guardian ad litem. Bangor, for Higgins Classical Institute. PHILBROOK, J. This is a bill in equity coming to this court on report, wherein the plaintiffs, as executrices and trustees under the will of John H. Higgins, allege that they are in doubt as to the mode of executing the trust created in said will, and pray that certain portions of said will may be construed and interpreted. The residuum of the personal estate of the testator was given to his three daughters, who are the plaintiffs here, to be held by them and the survivors or survivor, in trust until the last one of them should decease; the net income only of said trust fund to be paid from time to time to them equally, the issue of those deceased, if any, to take the share of the net income that the parent would be entitled to, if living, and upon the decease of all three of the daughters of the testator, then the principal of the trust fund was to be divided according to certain terms mentioned in the will. The The testator died April 16, 1910. Prior to his death, to wit, on July 20, 1909, his brother, A. Hamilton Higgins, died testate. latter was a resident of New York City at the time of his death, and his will was probated and allowed in the surrogate court of that city. A testator by will gave the residuum of his personal estate to be held in trust by his three daughters, the net income only to be paid to them for life. Under a devise of a residuum to testator by a brother who predeceased him, daughters have received a large sum from the surplus income of the brother's estate, and will receive further sums in the future. Held, that the gift by brother vested in testator at time of death of brother, and therefore became a part of testator's estate, and the proceeds be held in trust during the life of his wife, [1] In the will of Hamilton there was a provision that the residuum of his estate should |