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of the trust company to use all reasonable. It is said in argument that the provision effort to relet the premises, so as to mini- in controversy has been found in the usual mize the damages, and that the company form of lease in Massachusetts for a genhad not done so. And further, that suitable eration, and yet its meaning, as

now and responsible parties were willing at va- brought in dispute, has not come up for or rious times to hire the premises at a rent as received explicit decision. To this absence great or greater than the rent reserved in of contention and decision both parties rethe lease.

fer with equal confidence to establish that At the first trial of the case the circuit their respective constructions have been so court took the opposite of defendant in er- indisputable as never to have been quesror's contention, and held that, by force of tioned. However, there are some indicathe lease, the trust company did not assume tions of a judgment between the two conany risk, and was only required to use its structions in the case of Edmands v. Rust discretion "with some degree of reasonable- & R. Drug Co. 191 Mass. 123, 77 N. E. ness and with some degree of justice, and 713, which may be turned to in passing on have some regard to the rights of the posi- a question so essentially local. tion of the other parties concerned.” The The lease passed on contained a provicourt further held that the evidence did not sion for an entry by the lessors to termishow that the company had abused its dis- nate the lease for the breach of covenants, cretion, and directed a verdict for it, less followed by this language: “But the lescertain payments made by the occupant of see covenants to be responsible for any loss the basement, formerly the bank's tenant. or diminution of rent sustained by the lesThis was reversed by the circuit court of sors in consequence till the end of the appeals. 60 C. C. A. 236, 125 Fed. 371. lease.” The defendant in the case requested The latter court held that a lessor had the instructions, expressing it to be the duty of right to re-enter and might exercise his the lessor to accept any tenant that was discretion to relet the premises at the risk satisfactory financially to defendant. His of the lessee. The lessor, it was said, need instructions were refused, and the court innot go through the form of reletting, but an structed the jury, among other things, as honest and reasonable attempt to relet follows: “In general, the effort must be should be made, and whether so made was that which a reasonable landholder would a question for the jury.

make under the circumstances. Not every Upon the second trial of the case in the proposed tenant need be accepted, but an circuit court the trust company expressed unreasonable refusal to accept a suitable its contentions in requests for instructions tenant will be deemed an abandonment of to the jury as follows: (1) That it was en- the election to relet at the risk of the lestitled to rent the premises and relet them at see.” Commenting on the instructions the the risk of the bank; (2) that there was no supreme judicial court said that "the jury obligation upon it to notify the bank of were left to decide between the parties, in its election so to do, or to relet the prem- a way of which the defendant has no reaises or attempt to relet them. The court son to complain.” declined to give the instructions, but in- It is manifest from this decision that the structed the jury in accordance with the lessor, after entry, has not the absolute disprinciple expressed by the circuit court of cretion to relet or not to relet the premises, appeals. The jury returned a verdict for but that it is his duty to "prevent unnecesdefendant in error, upon which judgment sary loss or diminution of rent in consewas duly entered. It was affirmed by the quence of the termination of the lease.” circuit court of appeals.

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 solvent lessee on the ground that it was deof the bank. Re Chetwood, 165 U. S. 443, pendent upon a contingency, not merely as 459, 41 L. ed. 782, 787, 17 Sup. Ct. Rep. 385; to the amount of liability, but as to whether Guarantee Co. v. Hanway, 44 C. C. A. 312, it would ever attach or arise out of the 104 Fed. 369.

covenant. “The lessors," the court said, (2) The fact that the trust company in their discretion might not relet the did not make a reasonable effort to relet premises, but resume possession of them.” the premises was settled by the verdict This case rests on the principle expressed of the jury against it, and the case is re- by Judge Lowell, speaking for the circuit duced to the simple question whether the court of appeals, that if the lessor avail company can recover by virtue of the pro- himself of the covenant and re-enter he visions of the lease without any attempt may exercise his discretion to relet the whatsoever to relet the premises.

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 The will was executed September 1, 1858, exaction. It is the spirit as well as the let- and was duly admitted to probate.t The ter of the covenant, fulfilling its security testator left surviving him a wife and four without unnecessary loss to the lessee. daughters,-Catherine E., then the wife of Whether the bank could have made a

+This is the last will and testament of me lease to extend beyond its charter life we Robert Cruit of the city of Washington in need not decide.

the District of Columbia. Judgment affirmed.

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 ANN E. J. CRUIT, Appt.,

dollars, to each of them, to be paid as soon V.

after my death as may be. And all the rest KATE DEAN OWEN and Jessie Owen Cu- residue and remainder of my estate, real, pergle.

sonaland mixed, whatsoever and wheresoever

situated, I give, devise and bequeath unto Wills-interests of several—survivorship. my dear daughter Susan Cruit her heirs ex.

1. The surviving daughter of the testa-ecutors and administrators upon the followtor does not take to the exclusion of her ing trusts to wit: In trust for my dear sister's children under a will executed after wife Catherine for and during her life, and the marriage of such sister, devising the to permit her to receive and take the whole testator's real property in trust to his income thereof after paying taxes repairs daughters "for and during their respective and insurance, and to apply and dispose of lives

and from and after their such income as she my said wife may think death in trust for the child or children of proper and from and after her decease, in each of my said daughters then alive in fee trust, as to my real estate for my dear simple," and providing that, if any of the daughters Catherine E. the wife of Samuel daughters should die without having been Owens, Ann Cruit, Louisa Cruit, and her. married, her share should pass to the sur self the said Susan Cruit, equally share and vivors. *

share alike, for and during their respective Trust-termination-death of trustee. lives, for their own sole and separate benefit

2. A testamentary trust survives the free from the control of the husband of my death of the trustee where the will pro said daughter Catherine and any husband or vides that, if the executrix, who was also husbands she or my said other daughters named as trustee, should die or for any or any of them may hereafter happen to cause should become unable to act in the marry, and not to be liable in any way for trust, a new trustee should be appointed by the debts of any such husbands, the receipts the court, so that the trusts thereby cre- of my said daughters alone being a valid ated should be at all times preserved and discharge. And from and after their death carried into effect.+

in trust for the child or children of each of

my said daughters then living in fee simple, [No. 51.]

such child or children respectively to take

the share to which his, her or their parent Argued October 19, 22, 1906. Decided was entitled. And if any of my said daughDecember 3, 1906.

ters shall die without having been married,

her share shall pass to her or their survive A PPEAL from the Court of Appeals of the ing sisters or sister for life equally; and

upon

her or their death the same shall vest District of Columbia to review a decree in her or their child or children in the same which affirmed a decree of the Supreme manner, and for the same estate and pass Court of the District in a suit to construe on her or their death, as her or their origia will. Affirmed.

nal shares or share.

And as to my perSee same case below, 25 App. D. C. 514. sonal property, also given in trust as The facts are stated in the opinion.

above expressed. I direct that the same shall, Mr. E. H. Thomas for appellant.

after the death of my said wife, be divided Messrs. Chapin Brown and J. P. Earnest equally among all my said children, Cath

Messrs. Chapin Brown and J. P. Earnest erine, Susan, Ann and Louisa share and for appellee.

share alike, and I accordingly give the same

to them as aforesaid for their own sole and Mr. Justice McKenna delivered the opin- separate use. ion of the court:

And lastly I appoint my said daughter This suit involves the construction of the Susan Cruit sole executrix of this my last will of Robert Cruit, deceased, and, as de- will and testament. And if my said daughpendent thereon, the liability of appellant ter shall die or from any cause should beto account to the appellees for the rents of that a trustee shall be appointed by the cir

I , certain real estate located in the city of cuit court so that the trusts hereby created Washington and in the state of Virginia. shall be at all times preserved and carried Decree in the supreme court passed for ap- into effect.

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

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 question in the case is whether ap- the provision “and from and after their pellant succeeded to the whole estate upon death in trust for the child or children of the death of Catherine E. Owen, or whether each of my said daughters, then living, in the children of the latter, appellees, were fee simple.” But the word is qualified and the successors of their mother.

made several by what precedes it. The The will gives small legacies to two neph- devise is to his daughters "for and during ews, and disposes of "all the rest and res- their respective lives.” It is qualified also idue and remainder of the testator's es- by what follows it. One of the daughters tate to Susan Cruit in trust (1) for his of the testator was married, the others were wife for and during her life, and to per- not, and might not be, and anticipating this mit her to take and receive the whole in- possibility the testator provided that, if any come thereof; (2) in trust, as to testator's of his daughters should die without having real estate, to his daughters equally, share been married, her share should pass to the and share alike, for and during their re- survivors. In other words, it was only upspective lives,

and from and after on the death of a daughter “without having their death in trust for the child or chil- been married” (and without issue possibly), dren of each of my said daughters, then that her share was to pass to her sisters alive, in fee simple, such child or children, or sister. We also agree with the courts respectively, to take the share to which his, below that the trust continues. her or their parent was entitled. And if The concluding paragraph of the will is: any of my said daughters shall die without “And lastly I appoint my said daughter having been married, her share shall pass Susan Cruit sole executrix of this my last to her or their surviving sisters or sister will and testament. And if my said daughfor life equally, and upon her or their death ter shall die or from any cause should bethe same shall vest in her or their child or come unable to act in the trust, I direct that children in the same manner and for the a trustee shall be appointed by the circuit same estate and pass on her or their death, court so that the trusts hereby created shall as her or their original share or shares." be at all times preserved and carried into

We do not think it is difficult to discern effect.the intention of the testator. There is Decree affirmed. very little ambiguity in the will. If ambiguity exist it is in the pronoun “their” in the provision "and from and after their CHARLES K. OFFIELD, Piff. in Err., death in trust for the child or children of each of my said daughters then living in NEW YORK, NEW HAVEN, & HART. fee simple, such child or children respective

FORD RAILROAD COMPANY. ly to take the share to which his, her or their parent was entitled." It is contended by ap

Error to state court-Federal question. pellant that it is manifest from these words taken under Conn. Gen. St. $$ 3694, 3695,

1. The contention that the proceedings and others in the will that it was drawn by a by a railway company which is the lessee skilful hand, to create a joint tenancy in the of another railway, and the owner of three daughters of the testator, and cases are cited fourths of its stock, to condemn the outin which wills containing such words have been standing shares owned by a person who construed, it is contended, as giving such refuses to agree to the terms of purchase, effect. We might review these cases and violate the due process of law clause of those cited in opposition by appellees if the the 14th Amendment to the Federal Conwill in controversy were less clear in its stitution, and impair contract obligations, meaning. Provision for his daughters and sal of a writ of error from the Supreme

is not so frivolous as to require the dismisequality between them were clear and def-Court of the United States to a state court. inite in the mind of the testator. One

Constitutional law-due process of lawdaughter was married and that the others

condemnation for public use. vnight be was contemplated, and that chil- 2. The improvement of the New Haven

I

& 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

That the lease and acquisition of stock violating the due process of law clause of the 14th Amendment to the Federal Con are valid under the laws of the state is stitution, to condemn the outstanding decided by the supreme court of errors, and shares owned by a person who refuses to it is sought by proceedings under review to agree on the terms of purchase.

obtain the two shares of stock owned by Constitutional law-impairing contract ob- plaintiff in error, under 88 3694 and 3695 ligation.

of the General Statutes of Connecticut, which 3. Contract obligations are not im- are as follows: paired by the proceedings taken under “Sec. 3694. In case any railroad company, Conn. Gen. St. 88 3694, 3695, by the acting under the authority of the laws of New York, New Haven, & Hartford Rail this state, shall have acquired more than road Company, which is the lessee of the three fourths of the capital stock of any New Haven & Derby Railroad and the owner of three fourths of its stock, to con- steamboat, ferry, bridge, wharf, or raildemn the outstanding shares owned by a road corporation, and cannot agree with the person who refuses to agree on the terms holders of outstanding stock for the purof purchase.

chase of the same, such railroad company [No. 59.]

may, upon a finding by a judge of the su

perior court that such purchase will be for Argued and submitted October 25, 1906. the public interest, cause such outstanding Decided December 3, 1906.

stock to be appraised in accordance with

the provisions of g 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.

“Sec. 3695. If any person holding a miSee same case below, 78 Conn. 1, 60 Atl. nority of the shares of stock in any cor740.

poration 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- his shares, he may cause the same to be

appraised in accordance with the provisions Messrs. George D. Watrous and Edward of § 3687. When such appraisal has been G. Buckland for defendant in error.

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:

and the certificates for such stock, with This writ of error brings up for review aduly executed powers of attorney for transjudgment of the supreme court of errors offer thereon, have been deposited with such the state of Connecticut, rendered in a pro-clerk for such railroad company, such apceeding under the statutes of that state for praisal shall have the effect of a judgment the condemnation of two shares of stock against such company and in favor of the owned by plaintiff in error in the New Ha-holder of such stock, and at the end of sixven & Derby Railroad Company.

ty days, unless such judgment is paid, exeThere was a demurrer to the application, cution may be issued.” which was overruled by the advice of the

The purpose of the acquisition of the supreme court of errors, the judgment on stock is to enable defendant in error to imdemurrer having been reserved, under the prove the New Haven & Derby Railroad. practice of the state, for the advice and It is contended by plaintiff in error (1) consideration of that court. 77 Conn. 417, that the purpose for which the stock is 59 Atl. 510. Upon the hearing judgment sought to be obtained is not a public use. was rendered for defendant in error, which (2) That defendant in error has the power was affirmed by the supreme court of er- and authority to make the improvements rors. 78 Conn. 1, 60 Atl. 740.

mentioned in its application, which would

ror.

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 (2) The contract which it is contended rights in, under, and by virtue of, the lease was impaired is the lease of the New Haven to defendant in error.

& Derby Railroad by defendant in error. These contentions raise a Federal question The lease is for a period of ninety-nine and we canot say that it is frivolous. The years from July 1, 1892, at a rental of 4 motion to dismiss is therefore denied. per cent per annum upon the capital stock,

(1.) The power of the state to declare together with the payment of taxes, assessuses of property to be public has lately been ments, and interest upon the funded debt. decided in Clark v. Nash, 198 U. S. 361, Associated with this contention there is 49 L. ed. 1085, 25 Sup. Ct. Rep. 676, and in another, more general, to the effect that the the case of Strickley v. Highland Boy Gold statute impairs the contract rights of plainMin. Co. 200 U. S. 527, 50 L. ed. 581, 26 tiff in error as a stockholder of the New Sup. Ct. Rep. 301. These cases exhibit more Haven & Derby Railroad Company. We do striking examples of the power of a state not find it necessary to give precise and than the case at bar. In the first case the separate discussion to these contentions. statute of the state permitted an in- They seem to us to be but parts or incidents. dividual to enlarge the ditch of anoth- of the contention that the stock is sought er to obtain water for his own land; for a private use. If they are not incidents. in the second case the statute author of that, they are answered and opposed by ized the condemnation of a right of way to the case of Long Island Water Supply Co. transport ore from a mine to a railroad sta- v. Brooklyn, 166 U. S. 685, 41 L. ed. 1165, tion. In the first case it was said that the 17 Sup. Ct. Rep. 718. Whatever value the public policy of the state, declaring the lease gives the shares of stock will be repcharacter of use of property, depends upon resented in their appraisement. the facts surrounding the subject. In the Judgment affirmed. second case it was said, commenting on the first, "it proved that there might be exceptional times and places in which the very

FAIR HAVEN & WESTVILLE RAILfoundations of public welfare could not be

ROAD COMPANY, Piff. in Err., laid without requiring concessions from individuals to each other upon due compensa

CITY OF NEW HAVEN. tion, which, under other circumstances, Error to state court-scope of review would be left wholly to voluntary consent.

questions not involved in the record. The case at bar does not need the support

1. A Federal question respecting the of such broad principles. The ultimate pur: street railway company is not open on writ

validity of a paving assessment against a pose of defendant in error in the case at

of error from the Supreme Court of the bar is the improvement of the New Haven United States to a state court, where the & Derby Railroad, which connects (we quote latter court based its ruling that the quesfrom the opinion of the supreme court of tion had no standing in the case upon its errors, 77 Conn. 419, 59 Atl. 511] at New view as to the scope of the application of Haven, on the east, with four, and at its the railway company for relief from the western terminals with two, important rail- assessment, and of the pleadings, and it is. road lines owned by the plaintiff [defendant not contended that such view is erroneous. * in error] and forms a link in an all-rail Constitutional law-impairing contract obroute between Boston and the West, which

ligations--reserved power to amend or reis the only one controlled by the plaintiff,

peal street railway charter.

2. The imposition upon street railway and the only one of any kind controlled by companies by Conn. act of July 1, 1895, of it over which goods can be transported with the cost of paving and repaving that part assured despatch in all weathers and at all of the streets occupied by their tracks, is. seasons."

In this purpose the public has a valid exercise of the power reserved by an interest, and to accomplish it the court the state to alter or amend the charter of a applied the statute. The court observed: street railway company, which required such "To develop this route so as best to serve company to keep the street between its the public interest requires the laying of tracks and 2 feet on each side in good and

sufficient repair. additional tracks on the New Haven & Derby Railroad and other extensive and very

[No. 84.] costly improvements. The lessor company

*Ed. Note.--For cases in point, see vol. 13, has neither means nor credit whereby this Cent. Dig. Courts, § 1019.

V.

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