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of the trust company to use all reasonable effort to relet the premises, so as to minimize the damages, and that the company had not done so. And further, that suitable and responsible parties were willing at various times to hire the premises at a rent as great or greater than the rent reserved in

the lease.

At the first trial of the case the circuit court took the opposite of defendant in error's contention, and held that, by force of the lease, the trust company did not assume any risk, and was only required to use its discretion "with some degree of reasonableness and with some degree of justice, and have some regard to the rights of the position of the other parties concerned." The court further held that the evidence did not show that the company had abused its discretion, and directed a verdict for it, less certain payments made by the occupant of the basement, formerly the bank's tenant. This was reversed by the circuit court of appeals. 60 C. C. A. 236, 125 Fed. 371. The latter court held that a lessor had the right to re-enter and might exercise his discretion to relet the premises at the risk of the lessee. The lessor, it was said, need not go through the form of reletting, but an honest and reasonable attempt to relet should be made, and whether so made was a question for the jury.

Upon the second trial of the case in the circuit court the trust company expressed its contentions in requests for instructions to the jury as follows: (1) That it was entitled to rent the premises and relet them at the risk of the bank; (2) that there was no obligation upon it to notify the bank of its election so to do, or to relet the premises or attempt to relet them. The court declined to give the instructions, but instructed the jury in accordance with the principle expressed by the circuit court of appeals. The jury returned a verdict for defendant in error, upon which judgment was duly entered. It was affirmed by the circuit court of appeals.

It is said in argument that the provision in controversy has been found in the usual form of lease in Massachusetts for a generation, and yet its meaning, as now brought in dispute, has not come up for or received explicit decision. To this absence of contention and decision both parties refer with equal confidence to establish that their respective constructions have been so indisputable as never to have been questioned. However, there are some indications of a judgment between the two constructions in the case of Edmands v. Rust & R. Drug Co. 191 Mass. 123, 77 N. E. 713, which may be turned to in passing on a question so essentially local.

The lease passed on contained a provision for an entry by the lessors to terminate the lease for the breach of covenants, followed by this language: "But the lessee covenants to be responsible for any loss or diminution of rent sustained by the lessors in consequence till the end of the lease." The defendant in the case requested instructions, expressing it to be the duty of the lessor to accept any tenant that was satisfactory financially to defendant. His instructions were refused, and the court instructed the jury, among other things, as follows: "In general, the effort must be that which a reasonable landholder would make under the circumstances. Not every proposed tenant need be accepted, but an unreasonable refusal to accept a suitable tenant will be deemed an abandonment of the election to relet at the risk of the lessee." Commenting on the instructions the supreme judicial court said that "the jury were left to decide between the parties, in a way of which the defendant has no reason to complain."

It is manifest from this decision that the lessor, after entry, has not the absolute discretion to relet or not to relet the premises, but that it is his duty to "prevent unnecessary loss or diminution of rent in consequence of the termination of the lease."

In Bowditch v. Raymond, 146 Mass. 109, (1) It is objected by defendant in error 15 N. E. 285, the liability of the lessor, unthat the circuit court had no jurisdiction of der the provision of a lease such as that this action. We think otherwise. The ac-in controversy, was denied against an intion is clearly one to wind up the affairs of the bank. Re Chetwood, 165 U. S. 443, 459, 41 L. ed. 782, 787, 17 Sup. Ct. Rep. 385; Guarantee Co. v. Hanway, 44 C. C. A. 312, 104 Fed. 369.

(2) The fact that the trust company did not make a reasonable effort to relet the premises was settled by the verdict of the jury against it, and the case is reduced to the simple question whether the company can recover by virtue of the provisions of the lease without any attempt .whatsoever to relet the premises.

solvent lessee on the ground that it was dependent upon a contingency, not merely as to the amount of liability, but as to whether it would ever attach or arise out of the covenant. "The lessors," the court said, "in their discretion might not relet the premises, but resume possession of them." This case rests on the principle expressed by Judge Lowell, speaking for the circuit court of appeals, that if the lessor avail himself of the covenant and re-enter he may exercise his discretion to relet the premises at risk of the lessee or occupy

them. If he elect to relet he must make | pellees, which was affirmed by the court of "an honest and reasonable attempt to re- appeals. 25 App. D. C. 514. let." And this is a reasonable and just exaction. It is the spirit as well as the letter of the covenant, fulfilling its security without unnecessary loss to the lessee.

Whether the bank could have made a lease to extend beyond its charter life we need not decide.

Judgment affirmed.

ANN E. J. CRUIT, Appt.,

V.

The will was executed September 1, 1858, and was duly admitted to probate.t The testator left surviving him a wife and four daughters,-Catherine E., then the wife of

†This is the last will and testament of me Robert Cruit of the city of Washington in the District of Columbia.

First I give to my two nephews Edwin' Cruit the son of George, and Henry the son of John L. Cruit, the legacy of one hundred dollars, to each of them, to be paid as soon after my death as may be. And all the rest

KATE DEAN OWEN and Jessie Owen Cu- residue and remainder of my estate, real, per

gle.

Wills-interests of several-survivorship.

1. The surviving daughter of the testator does not take to the exclusion of her sister's children under a will executed after the marriage of such sister, devising the testator's real property in trust to his daughters "for and during their respective lives and from and after their death in trust for the child or children of each of my said daughters then alive in fee simple," and providing that, if any of the daughters should die without having been married, her share should pass to the survivors. *

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Trust-termination-death of trustee.

2. A testamentary trust survives the death of the trustee where the will provides that, if the executrix, who was also named as trustee, should die or for any cause should become unable to act in the trust, a new trustee should be appointed by the court, so that the trusts thereby created should be at all times preserved and carried into effect."t

[No. 51]

Argued October 19, 22, 1906.

December 3, 1906.

sonal and mixed, whatsoever and wheresoever situated, I give, devise and bequeath unto my dear daughter Susan Cruit her heirs executors and administrators upon the following trusts to wit: In trust for my dear wife Catherine for and during her life, and to permit her to receive and take the whole income thereof after paying taxes repairs and insurance, and to apply and dispose of such income as she my said wife may think proper and from and after her decease, in trust, as to my real estate for my dear daughters Catherine E. the wife of Samuel Owens, Ann Cruit, Louisa Cruit, and herself the said Susan Cruit, equally share and share alike, for and during their respective lives, for their own sole and separate benefit free from the control of the husband of my said daughter Catherine and any husband or husbands she or my said other daughters or any of them may hereafter happen to marry, and not to be liable in any way for the debts of any such husbands, the receipts of my said daughters alone being a valid discharge. And from and after their death

APPEAL or
PPEAL from the Court of Appeals of the
District of Columbia to review a decree
which affirmed a decree of the Supreme
Court of the District in a suit to construe
a will. Affirmed.

in trust for the child or children of each of my said daughters then living in fee simple, such child or children respectively to take the share to which his, her or their parent Decided was entitled. And if any of my said daughters shall die without having been married, her share shall pass to her or their surviving sisters or sister for life equally; and upon her or their death the same shall vest in her or their child or children in the same manner, and for the same estate and pass on her or their death, as her or their original shares or share. And as to my personal property, also given in trust as above expressed. I direct that the same shall, after the death of my said wife, be divided erine, Susan, Ann and Louisa share and equally among all my said children, Cathshare alike, and I accordingly give the same to them as aforesaid for their own sole and separate use.

See same case below, 25 App. D. C. 514.
The facts are stated in the opinion.
Mr. E. H. Thomas for appellant.
Messrs. Chapin Brown and J. P. Earnest
for appellee.

Mr. Justice McKenna delivered the opinion of the court:

This suit involves the construction of the will of Robert Cruit, deceased, and, as dependent thereon, the liability of appellant to account to the appellees for the rents of certain real estate located in the city of Washington and in the state of Virginia. Decree in the supreme court passed for ap

And lastly I appoint my said daughter Susan Cruit sole executrix of this my last will and testament. And if my said daughter shall die or from any cause should bethat a trustee shall be appointed by the circome unable to act in the trust, I direct, cuit court so that the trusts hereby created shall be at all times preserved and carried into effect.

*Ed. Note.-For cases in point, see vol. 49, Cent. Dig. Wills, §§ 1452, 1454, 1455.
+Ed. Note.-For cases in point, see vol. 47, Cent. Dig. Trusts, § 221.

The question in the case is whether appellant succeeded to the whole estate upon the death of Catherine E. Owen, or whether the children of the latter, appellees, were the successors of their mother.

Samuel Owen, Susan, Ann (appellant), and | dren might result therefrom. This idea is Louisa. The widow of the deceased died especially prominent and is carefully exMay 13, 1876; Louisa died January 2, pressed, and provision is made for such 1876, Susan died December 31, 1900, and children. The contention of appellant milCatherine E. Owen died May 14, 1901. itates against this idea. It would leave Susan and Louisa never married, nor has grandchildren unprovided for. If such had Ann up to the present time. Catherine E. been the intention of the testator, we think Owen left surviving her three daughters, he would have explicitly expressed it. It Evania F. Mackall and the appellees, Kate was not so natural, an intention as the D. Owen and Jessic Owen Cugle. The prop- other. It is not the first impression of the erty produces an income of $11,000 or $12,- will, and can only be made out by rigidly 000. giving plurality to the pronoun "their" in the provision "and from and after their death in trust for the child or children of each of my said daughters, then living, in fee simple." But the word is qualified and made several by what precedes it. The devise is to his daughters "for and during their respective lives." It is qualified also by what follows it. One of the daughters of the testator was married, the others were not, and might not be, and anticipating this possibility the testator provided that, if any of his daughters should die without having been married, her share should pass to the survivors. In other words, it was only upon the death of a daughter "without having been married" (and without issue possibly), that her share was to pass to her sisters or sister. We also agree with the courts below that the trust continues.

The concluding paragraph of the will is: "And lastly I appoint my said daughter Susan Cruit sole executrix of this my last will and testament. And if my said daughter shall die or from any cause should become unable to act in the trust, I direct that a trustee shall be appointed by the circuit court so that the trusts hereby created shall be at all times preserved and carried into effect."

The will gives small legacies to two nephews, and disposes of "all the rest and residue and remainder of the testator's estate to Susan Cruit in trust (1) for his wife for and during her life, and to permit her to take and receive the whole income thereof; (2) in trust, as to testator's real estate, to his daughters equally, share and share alike, for and during their respective lives, and from and after their death in trust for the child or children of each of my said daughters, then alive, in fee simple, such child or children, respectively, to take the share to which his, her or their parent was entitled. And if any of my said daughters shall die without having been married, her share shall pass to her or their surviving sisters or sister for life equally, and upon her or their death the same shall vest in her or their child or children in the same manner and for the same estate and pass on her or their death, as her or their original share or shares." We do not think it is difficult to discern the intention of the testator. There is very little ambiguity in the will. If ambiguity exist it is in the pronoun "their" in the provision "and from and after their death in trust for the child or children of each of my said daughters then living in NEW YORK, NEW HAVEN, & HARTfee simple, such child or children respectively to take the share to which his, her or their parent was entitled." It is contended by appellant that it is manifest from these words and others in the will that it was drawn by a skilful hand, to create a joint tenancy in the daughters of the testator, and cases are cited in which wills containing such words have been construed, it is contended, as giving such effect. We might review these cases and those cited in opposition by appellees if the will in controversy were less clear in its meaning. Provision for his daughters and equality between them were clear and definite in the mind of the testator. One daughter was married and that the others. night be was contemplated, and that chil

Decree affirmed.

CHARLES K. OFFIELD, Plff. in Err.,

v.

FORD RAILROAD COMPANY.

Error to state court-Federal question. taken under Conn. Gen. St. §§ 3694. 3695, 1. The contention that the proceedings by a railway company which is the lessee of another railway, and the owner of three fourths of its stock, to condemn the outstanding shares owned by a person who refuses to agree to the terms of purchase, violate the due process of law clause of the 14th Amendment to the Federal Constitution, and impair contract obligations, sal of a writ of error from the Supreme is not so frivolous as to require the dismisCourt of the United States to a state court. Constitutional law-due process of lawcondemnation for public use.

2. The improvement of the New Haven

& Derby Railroad is a public use for which Defendant in error is the lessee of the the New York, New Haven, & Hartford New Haven & Derby Railroad Company, Railroad Company, which is the lessee of and has acquired all of the shares of stock the former road, and the owner of three of the latter road except the two shares fourths of its stock, may proceed under owned by plaintiff in error. Conn. Gen. St. §§ 3694, 3695, without violating the due process of law clause of the 14th Amendment to the Federal Constitution, to condemn the outstanding shares owned by a person who refuses to agree on the terms of purchase. Constitutional law-impairing contract ob- plaintiff in error, under §§ 3694 and 3695 ligation. of the General Statutes of Connecticut, which are as follows:

3. Contract obligations are are not impaired by the proceedings taken under Conn. Gen. St. §§ 3694, 3695, by the New York, New Haven, & Hartford Railroad Company, which is the lessee of the New Haven & Derby Railroad and the owner of three fourths of its stock, to condemn the outstanding shares owned by a person who refuses to agree on the terms of purchase.

[No. 59.]

That the lease and acquisition of stock are valid under the laws of the state is decided by the supreme court of errors, and it is sought by proceedings under review to obtain the two shares of stock owned by

"Sec. 3694. In case any railroad company, acting under the authority of the laws of this state, shall have acquired more than three fourths of the capital stock of any steamboat, ferry, bridge, wharf, or railroad corporation, and cannot agree with the holders of outstanding stock for the purchase of the same, such railroad company may, upon a finding by a judge of the superior court that such purchase will be for

Argued and submitted October 25, 1906. the public interest, cause such outstanding Decided December 3, 1906.

I

stock to be appraised in accordance with the provisions of § 3687. When the amount N ERROR to the Supreme Court of Er- of such appraisal shall have been paid or rors of the State of Connecticut to re-deposited as provided in said section, the view a judgment which affirmed a judgment stockholder or stockholders whose stock of the Superior Court of New Haven County, shall have been so appraised shall cease to in that state, for the condemnation of cer- have any interest therein, and on demand tain shares of railway stock owned by a shall surrender all certificates for such stock, person who refuses to agree to the terms with duly executed powers of attorney for of purchase offered by a railway corporation transfer thereon, to the corporation applywhich has acquired three fourths of such ing for such appraisal. stock. Affirmed.

See same case below, 78 Conn. 1, 60 Atl. 740.

"Sec. 3695. If any person holding a minority of the shares of stock in any corporation referred to in § 3694 cannot agree The facts are stated in the opinion. with the railroad company owning three Messrs. Edward H. Rogers, W. H. H. Mil-fourths of such stock for the purchase of ler, and Charles K. Bush for plaintiff in er

ror.

Messrs. George D. Watrous and Edward G. Buckland for defendant in error.

his shares, he may cause the same to be appraised in accordance with the provisions of § 3687. When such appraisal has been made and recorded in the office of the clerk of the superior court of any county where

Mr. Justice McKenna delivered the opin- such railroad company operates a railroad, ion of the court:

This writ of error brings up for review a judgment of the supreme court of errors of the state of Connecticut, rendered in a proceeding under the statutes of that state for the condemnation of two shares of stock owned by plaintiff in error in the New Haven & Derby Railroad Company.

There was a demurrer to the application, which was overruled by the advice of the supreme court of errors, the judgment on demurrer having been reserved, under the practice of the state, for the advice and consideration of that court. 77 Conn. 417, 59 Atl. 510. Upon the hearing judgment was rendered for defendant in error, which was affirmed by the supreme court of er78 Conn. 1, 60 Atl. 740.

rors.

and the certificates for such stock, with duly executed powers of attorney for transfer thereon, have been deposited with such clerk for such railroad company, such appraisal shall have the effect of a judgment against such company and in favor of the holder of such stock, and at the end of sixty days, unless such judgment is paid, execution may be issued."

The purpose of the acquisition of the stock is to enable defendant in error to improve the New Haven & Derby Railroad.

It is contended by plaintiff in error (1) that the purpose for which the stock is sought to be obtained is not a public use. (2) That defendant in error has the power and authority to make the improvements mentioned in its application, which would

be as advantageous as taking the stock., can be effected on advantageous terms. The (3) The proceedings and statutes are in vio- plaintiff could and will effect it, and at lation of the due process clause of the 14th much less cost, if it can acquire the two outAmendment to the Constitution of the Unit- standing shares of the stock of the lessee. ed States, and impair the contract rights of They are owned by the defendant, who replaintiff in error as stockholder of the New fuses to agree on terms of purchase.” Haven & Derby Railroad Company, and his rights in, under, and by virtue of, the lease to defendant in error.

These contentions raise a Federal question and we canot say that it is frivolous. The motion to dismiss is therefore denied.

(1.) The power of the state to declare uses of property to be public has lately been decided in Clark v. Nash, 198 U. S. 361, 49 L. ed. 1085, 25 Sup. Ct. Rep. 676, and in the case of Strickley v. Highland Boy Gold Min. Co. 200 U. S. 527, 50 L. ed. 581, 26 Sup. Ct. Rep. 301. These cases exhibit more striking examples of the power of a state than the case at bar. In the first case the statute of the state permitted an individual to enlarge the ditch of another to obtain water for his own land; in the the second case the statute authorized the condemnation of a right of way to transport ore from a mine to a railroad station. In the first case it was said that the public policy of the state, declaring the character of use of property, depends upon the facts surrounding the subject. In the second case it was said, commenting on the first, "it proved that there might be exceptional times and places in which the very foundations of public welfare could not be laid without requiring concessions from individuals to each other upon due compensation, which, under other circumstances, would be left wholly to voluntary consent." The case at bar does not need the support of such broad principles. The ultimate purpose of defendant in error in the case at bar is the improvement of the New Haven & Derby Railroad, which "connects [we quote from the opinion of the supreme court of errors, 77 Conn. 419, 59 Atl. 511] at New Haven, on the east, with four, and at its western terminals with two, important railroad lines owned by the plaintiff [defendant in error] and forms a link in an all-rail route between Boston and the West, which is the only one controlled by the plaintiff, and the only one of any kind controlled by it over which goods can be transported with assured despatch in all weathers and at all seasons." In this purpose the public has an interest, and to accomplish it the court applied the statute. The court observed: "To develop this route so as best to serve the public interest requires the laying of

additional tracks on the New Haven & Derby Railroad and other extensive and very costly improvements. The lessor company has neither means nor credit whereby this

(2) The contract which it is contended was impaired is the lease of the New Haven & Derby Railroad by defendant in error. The lease is for a period of ninety-nine years from July 1, 1892, at a rental of 4 per cent per annum upon the capital stock, together with the payment of taxes, assessments, and interest upon the funded debt. Associated with this contention there is another, more general, to the effect that the statute impairs the contract rights of plaintiff in error as a stockholder of the New Haven & Derby Railroad Company. We do not find it necessary to give precise and separate discussion to these contentions. They seem to us to be but parts or incidents of the contention that the stock is sought for a private use. If they are not incidents of that, they are answered and opposed by the case of Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685, 41 L. ed. 1165, 17 Sup. Ct. Rep. 718. Whatever value the lease gives the shares of stock will be represented in their appraisement. Judgment affirmed.

FAIR HAVEN & WESTVILLE RAILROAD COMPANY, Plff. in Err.,

V.

CITY OF NEW HAVEN. Error to state court-scope of reviewquestions not involved in the record.

1. A Federal question respecting the street railway company is not open on writ validity of a paving assessment against a of error from the Supreme Court of the United States to a state court, where the latter court based its ruling that the question had no standing in the case upon its view as to the scope of the application of the railway company for relief from the assessment, and of the pleadings, and it is not contended that such view is erroneous.* Constitutional law-impairing contract obligations-reserved power to amend or repeal street railway charter.

2. The imposition upon street railway companies by Conn. act of July 1, 1895, of the cost of paving and repaving that part of the streets occupied by their tracks, is a valid exercise of the power reserved by the state to alter or amend the charter of a street railway company, which required suchcompany to keep the street between its tracks and 2 feet on each side in good and sufficient repair.

[No. 84.]

*Ed. Note. For cases in point, see vol. 13, Cent. Dig. Courts, § 1049.

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