"Trials of issues, proper for the cognizance of | have to look further to discover the purpose a jury, in the Supreme and county courts, shall of the statute. The decisions of other states be by jury, except where parties otherwise having no statute like ours shed little, if any, agree." Const. c. 2, § 31. light upon the question; especially is this so where, as in case of some cited by the respondent, there is a statute expressly authorizing the waiver. It is enough to say in These provisions relating to trial by jury were all in force when what is now P. S. 2216, was enacted. [2, 3] The jury referred to in these provisions is the common-law jury of 12. State v. Peterson, 41 Vt. 504, 522; Plimpton v. Somerset, 33 Vt. 283, 293. Until recently the constitutional guaranty of a right to trial by such a jury was secured in criminal cases by an unfettered appeal from all minor courts to the county courts, which for many years have alone provided the constitutional jury. In 1915 the Legislature denied the right to such appeal in case of misdemeanors tried in the municipal courts, meeting the requirement of the Constitution by providing for a common-law jury therein. Thus, as to such offenses the municipal court is given concurrent jurisdiction with the county court, and to that extent is brought within the provisions of section 31 of the Constitution. It is not questioned but that the offense charged was such as under the Constitution the respondent had the right to trial by jury there in guaranteed. See State v. Peterson, 41 Vt. 504, 522. Nor can it be doubted that the Legislature has the power to extend the right beyond the limits guaranteed in the Constitution. In re Welch's Will, 69 Vt. 127, 134, 37 Atl. 250. passing that, where only the right to trial by jury is guaranteed, the majority of courts hold that the Legislature can by statute authorize a waiver of the right. There is another line of cases holding that, where only the right to a jury trial is guaranteed, one charged with a misdemeanor may waive such a trial without statutory authority therefor. See Schick v. United States, 195 U. S. 65, 24 Sup. Ct. 826, 49 L. Ed. 99, 1 Ann. Cas. 585; note 11 L. R. A. (N. S.) 1139; 1 Bish. Cr. Pro. §§ 890-894; Hughes, Cr. Law & Proc. § 2979; Rapalje's Cr. Proc. §§ 150, 151; Clark's Cr. Proc. 434. The The following cases are instructive: Constitution of Virginia secures the right of trial by jury. Under a statute providing for. the waiver of a jury in any case except that of felony or misdemeanor it was held in Mays v. Com., 82 Va. 550, that the accused could not waive a trial by jury in a case of misdemeanor. The Constitution of New York provides that "trial by jury in all cases in which it has been heretofore used shall remain inviolate forever," and further that "a jury trial may be waived by the par[4] We come now to consider how the stat-ties in all civil cases in the manner to be preIt was held in People v. ute affects the authority of the court in crim-scribed by law." inal trials and whether in such a case the re- Cosmo, 205 N. Y. 91, 98 N. E. 408, 39 L. R. spondent can waive a trial by jury except by A. (N. S.) 967, that a citizen was not only admission of guilt. We note, in passing, the entitled to a trial by jury in all cases in state's contention that the statute was re- which it had been heretofore used, but that pealed by the municipal court act (No. 91, in criminal cases of that kind it could not Acts of 1915), rendering Bugbee v. Boyce, be waived. supra, obsolete. If repeated, it is because of inconsistency; but it is not inconsistent with anything contained in the later act. The only provisions in the municipal court act affecting the mode of trial are those conferring jurisdiction upon a municipal court to try and finally determine prosecutions for certain offenses, including the one here charged, and providing that in such prosecutions the respondent shall be entitled to a jury of 12. These provisions are entirely consistent with the requirements of P. S. 2216. Upon the court as constituted-that is, with a commonlaw jury-and not the judge sitting alone, is conferred final jurisdiction to try and determine such offenses. In Oklahoma there is a statute similar to ours, but differing in this, that it excepts from its provisions petty offenses tried in It was held in Re police or justice's court. McQuown, 19 Okl. 347, 91 Pac. 689, 11 L. R. A. (N. S.) 1136, that, there being no statute authorizing a defendant in a criminal case to waive a jury trial, such a case cannot be tried upon a plea of not guilty without a jury, unless it comes within the class of cases in which no jury was required at common law. The relator had been convicted without a jury for a violation of the game laws. He was discharged from commitment and remitted to the lower court for a new trial. The Constitution of Rhode Island declares [5] In terms the statute is mandatory. that trial by jury shall remain inviolate, but "No person shall be convicted of an offense," that it may be waived in civil cases. A statexcept as therein provided. The term "con- ute provides that all criminal appeals shall victed" refers to the ascertainment of guilt, be tried in the superior court with a jury. and not to the judgment of the court. Bug- It was held in State v. Battey, 32 R. I. 475. bee v. Boyce, 68 Vt. 311, 35 Atl. 330. The 80 Atl. 10, that accused, on an appeal to the term "offense" plainly includes misdemean- superior court, cannot waive a jury trial; ors. State v. Peterson, 41 Vt. 504, 523. As the ground of the decision being that the we have seen, the right to a trial by jury court had no jurisdiction to try a criminal is State ex rel. Baum v. Warden of Baltimore | purpose of laying a foundation for the adCity Jail, 110 Md. 579, 73 Atl. 294. In Ohio a statute provides for drawing a common-law jury in certain prosecutions before justices of the peace in case a trial by jury is not waived. It was held in Simmons v. State, 75 Ohio St. 346, 79 N. E. 555, 9 Ann. Cas. 260, that such waiver must clearly and affirmatively appear upon the record, and cannot be assumed or implied by the reviewing court from the silence of the accused or his mere failure to demand a jury, and that the court's jurisdiction depended upon the waiver and could not be acquired by merely asserting it. mission of other evidence, particularly the declarations of others implicated in the common enterprise. See 5 R. C. L. 1087. Such a combination may be, indeed, generally must be, proved by circumstantial evidence. Of necessity, where the undertaking is of the character involved in this case, the investigation cannot be confined to the particular transactions which form the basis of the charge. Referring more particularly to the claim of error in receiving evidence of other offenses, an additional reason for sustaining the court's ruling is that the transactions were similar and a part of a series of acts showing how the business was conducted and the respondent's knowledge and connec tion therewith. See State v. Marshall, 77 Vt. [6] It was said in Brewster v. People, 183 Ill. 143, 55 N. E. 640, that where a tribunal for the trial of criminal prosecutions is provided for and a jury is made an essential | 262, 59 Atl. 916; State v. Smalley, 50 Vt. 736. part of it, such tribunal cannot be changed by permitting the accused to consent to the elimination of the jury therefrom; that such course would confer jurisdiction upon a tribunal which had no such jurisdiction under the law. See, also, Paulsen v. People, 195 Ill. 507, 63 N. E. 144. It is a rule too well recognized to require citation of authorities that jurisdiction cannot be conferred by waiver nor by agreement of the parties. [11] As there was evidence from which a common purpose could fairly be inferred and evidence tending to connect the respondent therewith, the representations of the various canvassers to the persons from whom the respondent later made collections were admiss!ble. After the state had adduced evidence tending to show the combination, then any declaration made by one of the conspirators pursuant to the common object and in furtherance of it would be admissible against all of them. Patch Mfg. Co. v. Protection Lodge, 77 Vt. 294, 319, 60 Atl. 74, 107 Am. St. Rep. 765; State v. Thibeau, 30 Vt. 100; note 30 Vt. 37, annotated edition. [7] There can be no doubt that when the Legislature declared that no person should thereafter be convicted of an offense unless on admission of guilt or the verdict of a jury it was not going through the empty form of conferring a right which had existed from the time of Magna Charta, but was seeking ter which his evidence tended to show was The respondent offered one sheet of a letto safeguard that right by denying to courts of final jurisdiction the power to try a crimi- written by him to the general manager of the furniture company. The offer was exnal charge without a jury. Such is the plain import of the language used, and the settled cluded, and the respondent had an exceppractice in the county courts since the adoption. The exhibit is not produced, so the mation of the statute is consistent with that construction. Now that municipal courts have final jurisdiction, there is every reason why they should be governed by the same rule. It follows that the court had no authority to try the respondent without a jury, and therefore that his conviction was void. As this result requires a reversal, we do not think it advisable to discuss in detail the respondent's exceptions to the admission of evidence, of which there are more than 40. A brief general statement will sufficiently satisfy the purposes of a new trial. [8-10] Several of the exceptions relate to evidence properly received as tending to show a conspiracy involving the furniture company and its officers and agents, including the respondent, to conduct a lottery; this for the teriality of its contents cannot be passed upon. Besides, the court may have excluded it because a part only of the document was produced and the absence of the remainder not satisfactorily accounted for. As the evidence tended to show that the statements of the furniture company's employés who preceded the respondent were made in furtherance of a conspiracy, it was immaterial whether their statements were specially authorized by the company; and the respondent's offer to show they were not was properly excluded. The declarations of the agents or employés of one of the conspirators so made are admissible against all. State v. Grant, 86 Iowa, 216, 53 N. W. 120. See 12 Cyc. 437. Judgment reversed, and cause remanded. GRADY v. WHEATON et al. (three cases). (Nos. 376, 377, 378.) (Supreme Court of Rhode Island. May 31, 1917.) OF EVIDENCE. GIFTS 49(6) — INTER VIVOS-SUFFICIENCY Evidence held sufficient to sustain findings that there was not a completed gift by father to children of stock purchased with father's money in children's names, and over which he always exercised control. [Ed. Note.-For other cases, see Gifts, Cent. Dig. § 95.] Appeal from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice. Suits by Irene B. Grady, by guardian, and others against Herbert M. Wheaton and others. Decrees for defendants, and plain tiffs appeal. Appeals dismissed, decrees af firmed, and cases remanded. in the name of his wife. These last-named shares were also purchased by Grady with his own money. At the interview between Grindell and Grady the latter agreed to sell to the former all of said six shares for the sum of $100. Grady could only write his name and Mrs. Grady was unable to write at all so that Grindell, in the presence of Mr. and Mrs. Grady, prepared the power of attorney on each certificate for signature and, in the case of Mrs. Grady, with her consent, wrote her name, she making her mark. Upon each of the certificates standing in the respective names of the complainants, Patrick Grady signed his name under the name of the daughter and the words "by her father" which had previously been written under the power of attorney, on the back of the certificates, by Grindell. The transaction with Grindell re garding the sale of the stock took place in the absence of the complainants. Grady reO'Shaunessy, Gainer & Carr, of Providence, ceived $100 for the six shares, and he kept for appellants. Eliot G. Parkhurst and Ed-it and spent it in his own business. Neither wards & Angell, all of Providence, for re- Grady's wife nor either of the complainants spondents Wheaton, Jastram, and Lewis. ever asked him for any of the money after William W. Moss and Gardner, Pirce & Thorn-learning that the stock had been sold, nor ley, all of Providence, for respondent Thornley. PER CURIAM. These are three separate suits in equity. The bills of complaint are identical in their allegations and prayers for relief, and in each case the complainant seeks to obtain a transfer from the defendants of one share of stock in the Rhode Island Co operative Coal Company. These suits were heard together in the superior court upon bills, answers, replications, and oral proofs, and are now before this court upon complainants' appeals from final decrees denying the prayers for relief, dismissing the appeals, and awarding costs to respondents. did the complainants inquire as to its price or value or to whom it had been sold. proof that the three shares of stock in quesThe complainants sought to establish by tion were gifts to them from their father, and they offered some testimony to the effect that they accompanied their father to O'Driscoll's office when the purchase of the stock thereafter understood that their father inwas arranged in 1903, and that they then and tended that the certificates issued in their respective names were gifts to them. The oldest child is the only one who claims to remember having accompanied her father to the office of O'Driscoll. Grady did not state to the children that any of the stock which he had bought was to be theirs. The daughters saw the certificates, at times, when Mrs. Grady opened the trunk in which they were kept to get money or other things contained therein. It appears from the pleadings and evidence that in 1903 Patrick Grady, the father of the complainants, purchased the three shares of stock in question from Jeremiah F. O'Driscoll, who at the time was the general manager of the Rhode Island Co-operative Coal At the time when Grindell purchased the Company, paying for the same with his own money. The certificates of stock were later stock at Grady's house there was some talk issued, one to each of the complainants, who as to the certificates standing in the names were then minors aged three, five, and nine of the complainants, but after an explanation years, respectively. Grady received the cer- of the matter to Grindell he concluded there tificates from O'Driscoll, took them home, was no need to wait for the return of the chiland handed them to his wife, telling her to dren from school; that the stock belonged to lock them up in a trunk in which the money Grady anyway, and Grady apparently agreed and other effects of Grady and his wife were with him. Grady did not consult the comkept. There was no occasion to use these plainants before the sale of the stock, alcertificates until November, 1913, when one though he knew on the day previous to the Grindell, then the general manager of the transaction that Grindell desired to purchase coal company, called upon Grady with refer- it, nor did he tell them that he had sold it ence to the purchase of the stock. The orig- until after he had spent the money. Grady, inal purchase of stock in the coal company on cross-examination, admitted that at the by Grady also included, in addition to the time of the transaction with Grindell he supthree shares mentioned, two shares which posed he had a right to sell all the stock and Grady took in his own name and one share to spend the money received therefor, and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes that he did not then suppose that any money, maintenance must give way to the clearly exbelonged to his daughters. After the complainants finally learned of the sale they did not ask their father for the money received by him, and they displayed no anxiety to recover the stock. The present suits were not suggested by them, but by their father, and nothing was said to them about the suits until after Grady had consulted counsel. The first question which arises is whether the complainants were ever the owners of any stock in the Rhode Island Co-operative Coal Company. The superior court has found upon the pleadings and testimony that there was no complete gift of the three shares of stock by Grady to his children, and a decree was therefore entered in that court dismissing the bills. The trial court had the advantage of seeing the witnesses and hearing their testimony, and we cannot say from our examination of the case that the conclusion of the trial court was clearly wrong. As this determination is decisive of the case, any discussion of the other questions raised is unnecessary. pressed general intention that the estate should thorough manner and retained in the family, be kept up and maintained in a careful and and the trustees will be authorized in the exercise of their reasonable discretion for the nec essary maintenance and upkeep of the estate to largest amount named in the testimony as esexpend annually not to exceed $45,000, the sential for proper maintenance. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1629, 1630.] Case certified from Superior Court, Kent County. Bill in equity for the construction of a will by Edward B. Aldrich and others against Winthrop W. Aldrich and others. On certificate from the superior court. Decree in accordance with opinion. Green, Hinckley & Allen, of Providence (Theodore Francis Green, Frederick W. Tillinghast, and Harold P. Salisbury, all of Providence, of counsel), for complainants and respondents. George Hurley, of Providence, for guardian ad litem. BAKER, J. This is a bill in equity for The complainants' appeals are dismissed, the construction of the will of the late Senathe decrees of the superior court are affirmed, tor Nelson W. Aldrich, and the cause is cerand the cases are remanded to that court fortified to this court by the superior court sitfurther proceedings. (40 R. I. 324) ALDRICH et al. v. ALDRICH et al. (No. 394.) (Supreme Court of Rhode Island. May 29, 1. WILLS 443-CONSTRUCTION-INTENTION other means. [Ed. Note. For other cases, see Wills, Cent. Dig. § 960.] 2. WILLS-685- CONSTRUCTION - SPECIFIC AND GENERAL INTENTION-TRUST ESTATE. ting within and for the county of Kent under the provisions of section 35 of chapter 289 of the General Laws. The complainants, Edward B. Aldrich, Lucy T. Aldrich, and Richard S. Aldrich, are children of the decedent, and bring their bill of complaint individually and as trustees under said will against Winthrop W. Aldrich, Abby A. Rockefeller, Stuart M. Aldrich, William T. Aldrich, and Elsie Aldrich Edgell, all also children of the decedent, and 12 grandchildren, all infants under the age of 21 years, said parties being all of the now living descendants of the testator. Mr. Aldrich died April 16, 1915, leaving a last will and testament bearing date July 29, 1908, which was duly admitted to probate May 27, 1915. After devising certain real estate in Providence to his widow, Abby P. Aldrich, in fee simple, and making certain bequests, the testator devised and bequeathed A testator's will left the residue of his es- all the rest, residue, and remainder of his tate to trustees for certain purposes with power to sell and reinvest, with the exception of a estate of every kind to his said widow and house and grounds which were not to be sold by the above-named complainants in trust for the trustees, and by another clause instructed the uses and purposes set forth in the will. the trustees to spend such sum not exceeding $25,000 annually as shall be necessary to pay all His widow, Abby P. Aldrich, did not accept expenses for taxes, repairs, etc., of such estate. the appointment as trustee or act as such. By another clause the testator expressed the and died intestate February 17, 1917. The hope that on the distribution of his estate at the expiration of the trust the estate mentioned trustees are by the will authorized and diwould remain in the possession of the family. rected during the continuance of the trust It appears that under the present conditions to pay from the net income of the estate a this estate cannot be maintained and kept up in sum "not exceeding twenty-five thousand accordance with the direction of the will without an annual expenditure thereon of approximately dollars in any one year" for the maintenance $40,000. It also appears that there will be and upkeep of the testator's real estate on sufficient resources in the hands of the trustees Warwick Neck, in the town of Warwick, to keep the estate in good condition if authorized to do so. Held, that the particular intention called in the will the Warwick Neck estate, limiting the amount annually to be spent for and from the balance of such income to pay to each of his said children (except said Abby | fifth clause provides for the payment of the A. Rockefeller, who was given a legacy outright) the sum of $8,000 per year during the continuance of said trust, and to pay over the remainder of said income to his said wife during the term of her natural life for her own use and benefit. expenses of maintenance of said Warwick Neck estate from the gross income, while the sixth clause thereof makes such expense payable from "net income," and also in that the specific instructions as to maintenance cannot be carried out without the expendiAt the expiration of 12 years from April ture of a larger amount than the sum named 16, 1915 (the date of testator's death), the in the will therefor. They also represent trust is to terminate, and thereupon said that, if it be held that under the general autrustees are required to pay over and convey, thority to maintain and keep up said Wardischarged of any trust, all the trust estate wick Neck estate the trustees' authority to then remaining in their hands in equal shares expend further sums in excess of $25,000 a unto such of the testator's children (except-year for its proper maintenance, the making ing said Abby A. Rockefeller) as shall then be living, and the lawful issue then living of either of them that may have theretofore deceased by way of representation. of such increased expenditures and payments for such upkeep would leave the balance of the net income of said trust estate far in excess of the sum of $56,000 required for the payment of said annuities to his said seven children and their respective issue. The complainants therefore pray that this court may declare and determine the construction of said will to be such as to authorize them as trustees to expend from the income of said trust estate during the continuance of said trust such sum or sums annually as they may reasonably deem necessary for the maintenance and upkeep of said War The complainants represent that said Warwick Neck estate consists of a large tract of land in the residential district of the town of Warwick, comprising approximately 174 acres, some of which land was acquired by the testator after making said will, and that the buildings thereon consist of a large mansion house, constructed after the execution of said will, a large building comprising both a boathouse and dwelling house, a teahouse, three large summer cottages, a gard-wick Neck estate and to prevent its deterioraner's house, extensive greenhouses, two gate tion and depreciation, and that they may be lodges, each constituting a dwelling house, a instructed as to their duty in the premises, water tower, and a garage. Said estate also and for other and further relief. The five reincludes a heating and power plant, approxi-spondents who are sui juris have answered mately two miles of macadamized roads (as admitting the allegations of the bill and join appears by the testimony), walls, gates, in the prayer for the relief there asked for. wharf, walks, many valuable trees, shrubs, vines, and plants, and a large area of lawn, all of which is taxed by said town of Warwick on an assessed valuation of $537,100. The guardian ad litem of the infant respondents and of all persons not in being or ascertainable whose interests may be affected by this cause submits their rights and interests to the care and protection of this court. The testimony taken in the cause clearly proves the allegations of the bill. The question presented requires consideration of the fifth and sixth clauses of the will, which are as follows: The complainants aver upon information and belief that the necessary expenses for the maintenance and upkeep of the Warwick Neck estate at the time said will was made was considerably less than $25,000 a year, but that, owing to additions made thereto and the additional buildings and other improvements thereon, said expenses have so very largely increased that in consequence it is now wholly impossible to keep up and maintain said estate in the manner set forth in said will or in such a way as to prevent its deterioration in condition and depreciation in value without an annual expenditure there-ecutors and administrators, in trust, for the on of approximately $40,000. They also aver that since the testator's death the expenditures by them and by the said Abby P. Aldrich, acting in conjunction with them and contributing from her own income therefor, have annually exceeded $31,000 for the maintenance of said estate, but that such amount has been insufficient to keep up and maintain said estate in the manner provided for by said will and as the same was always kept up and maintained by the testator in his lifetime. They further aver that their authority and "Fifth. All the rest, residue and remainder of the estate, real, personal and mixed of which I shall be seized and possessed or to which I shall be in any way entitled at the time of my decease, including all real estate hereafter acquired by me, I give, devise and bequeath unto my wife, Abby P. Aldrich, and my children, ard S. Aldrich, as joint tenants, their heirs, exEdward B. Aldrich, Lucy T. Aldrich and Rich uses and purposes and with and subject to the powers and limitations hereinafter expressed and declared concerning the same, that is to say: "In trust for the said Abby P. Aldrich, Edward B. Aldrich, Lucy T. Aldrich and Richard S. Aldrich and the survivors and survivor of them, and other the trustees or trustee under this trust for the time being, hereinafter called my said trustees,' to take possession and charge the real estate, to keep in good order and repair of all said trust estate, the improvements upon and properly insured against loss by fire, and the personal estate to invest and to keep invested in safe and productive securities, with power part or parts of said trust estate (other than at any time, or from time to time to sell any |