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from my estate.” Then follows the provis- | be large or small, she did not name specific ion for the division referred to, which, after sums for his children, but divided the whole excluding the articles of personal property first among him and them equally. In view of mentioned, orders all her estate, expressly in all the provisions of the will we are of opincluding these notes and loans, to be divided ion that the indebtedness of Jarvis W. Robinto five equal shares. She then takes each inson should be set-off against the share of share by itself, and, in a separate clause of the estate devised to him and his children. the will for each, directs the manner in which Decree accordingly. it "shall be distributed" to some one of her five children, and his or her children. Hav
(150 Mass. 106) ing thus treated each branch of her family CITY OF FALL RIVER v. CITY OF TAUNTON. with absolute equality, and having modified the shares of her children only by subtract- (Supreme Judicial Court of Massachusetts.
Bristol. Nov. 13, 1889.) ing from each a greater or less sum, to be
PAUPERS-MILITARY SETTLEMENTS. given directly to their respective children, she states her manifest purpose in the tenth who had enlisted and served in the civil war for a
St. Mass. 1865, c. 230, provided that soldiers clause by saying that she makes the division year on the quota of any city or town, and had rewith equal love and affection towards all herceived an honorable discharge, should have a children.
settlement in such city or town, but limited its
provisions to soldiers who were of full age at the It is plain from the language of the fourth time of their enlistment. St. 1870, c. 392, repealed clause that she intended that all the loans and the former statute, and re-enacted the same pronotes should be reckoned as part of her estate, visions, without the limitation, and added a pro
vision for soldiers who had served on the quota of and that the shares should be ascertained on the commonwealth. Held, that since the passage that basis. The third clause also shows the of that act soldiers who were minors at the time same intention. It is agreed that her son of their enlistment are entitled to the same beneJarvis owed her $10,000 or $12,000 for such fits under this law as if they had been of full age. loans when the will was made, and from her Exceptions from superior court, Bristol reference to the subject in the third clause it county. is evident that she expected a material in- Action by the city of Fall River against crease of the loans. Indeed, it is found as a the city of Taunton to recover money paid for fact that he had been since the death of his the support of a pauper whose husband enfather, and then was, dependent for the most listed and served in the civil war on the quopart on assistance from her for the support of ta of the defendant city, and who was, at himself and his family. He died insolvent the time of his discharge, a minor. Defendin the life-time of the testatrix, and the ant demurred on the ground that it did not amount of the loans advanced to him was then appear that the pauper ever had a settlement more than $23,000. The words,“legacy given in the defendant city. The demurrer was from my estate,” in the third clause, could overruled, and judgment ordered for plaintiff. not have referred merely to the portion which james F. Jackson, for plaintiff. A. M. he would receive in the distribution under the Alger, for defendant. sixth clause of the share set apart for his family; for her whole estate, including the loans, KNOWLTON, J If the husband of the pauwas only $200,000, and that portion could in per gained a settlement by his enlistment no event exceed $8,000, while the amount to and service as a soldier npon the quota of the be collected from him by set-off was $10,000 defendant city in the war of the Rebellion, or $12,000 when the will was made, and was the demurrer must be overruled. It has unlikely to be, as it afterwards was, largely in-doubtedly been a part of the wise and hucreased. The language of the third clause mane policy of the commonwealth, in its legrequires the set-off“ betwixt the debt * * * islation for the relief of paupers, to prevent, and the legacy" to be made “in the division” so far as possible, the compulsory separation of the estate which was directed. The legacy of members of a family. A wife follows the referred to was the legacy to him and his settlement of her husband, and legitimate family to be obtained by that division; and children follow the settlement of their fathe division into five equal shares, required ther, if he has any in the state, and if he has by the fourth clause, was the only one named none, they follow that of their mother, if she as sich in the will. The language used in has any. Pub. St. c. 83, § 1. The statute of providing for the distribution of the shares 1865, c. 230, which first created military setamong the members of each family strength- tlements, was passed when there were many ens this conclusion. Except to the children soldiers in the state who had not attained of her son Jarvis, she set apart specific sums their majority, and it recognized this policy to her grandchildren in each family, and gave by limiting its provisions to persons who the rest of the share to their parent. In those were at the time of enlistment of the age cases there was no doubt that the share would of 21 years. It also contained an excepbe sufficient for the payment of these sums, tion of those who had not resided in the city with a substantial residue for the parent. or town six months next previous to the time But knowing that the share for the family of of entering service. It further provided that Jarvis would be much smaller, and of uncer- a person who, by reason of want of age or tain amount, and adopting a method which residence, should not be entitled to a settlewould be equitable whether the amount should ment under the act, should nevertheless be entitled, for himself, his wife or widow, or of the whole, and had been redeemed by the minor children, to support in the city or demandant. The tenant claimed the land in town, if they should fall into distress there controversy by purchase under a second exin, and should not be sent thence to the state ecution levied on the balance of the land at almshouse, nor removed to any other place. tached. There was a judgment for the tenThe statute of 1870, c. 392, $$ 3, 5, 6, re- ant, and demandant appeals. pealed the former legislation upon this sub- J. Brown, for remandant. Bradley Swift, ject, and substituted the same law, with the for tenant. exception of the provisions as to age and inhabitancy, and the provision last above stated, DEVENS, J. An attachment of the real esand with a clause including persons who tate of the husband had been lawfully made served on the quota of the commonwealth, by an order of the probate court, to a specified but not on the quota of any city or town. amount, in a proceeding by the wife praying At the time of the passage of this act the war for a separate support and the custody of her had been ended more than five years, and children. Pub. St. c. 147, SS 33-35, and there were very few, if any, who had served chapter 146, $$ 11, 12, 15, 33, 37. a year in the war who had not attained their ecution had been issued for non-payment of majority. We think the omission by the leg. certain arrears of the allowance ordered by islature of the original provisions in regard the probate court, and had been levied by to minors was for the purpose of making a sale of certain lots of land of the husband inmaterial change in the statute, and of includ- cluded in the attachment, but not of all of ing a large class who had become of full age, them. Said execution and sale thereon had and who were not included in the former been for an amount much less than that of statute, because many of them were then mi- the attachment. The case presents the quesnors. The extension of the liberal provis- tion whether a new and additional execution ions of the law by St. 1871, c. 370, § 2, and might be issued for the amount of arrears the re-enactments of St. 1878, c. 190, and of which subsequently become due, and whether, Pub. St. c. 83, § 1, cl. 11, confirm this opin- under it, a sale may be made of the other ion. Since the passage of St. 1870, c. 392, real estate of the husband, which would give soldiers who were minors at the time of the a title to the extent of the amount for which enlistment are entitled to the same benefit the property had been originally attached, under this law as if they had been of full age. and which had not been exhausted by the Demurrer overruled.
former levy, superior to that of any one to
whom the husband had alienated the estate. (150 Mass. 92)
If the original attachment remains in force, DOWNS 0. FLANDERS.
after an execution has once been issued and
served, so that other land may be taken, by (Supreme Judicial Court of Massachusetts.
virtue of a second execution issuing upon the Dukes. Nov. 12, 1889.)
decree, to the amount of the attachment, as HUSBAND AND WIFE – MAINTENANCE — ATTACH- the wife may from time to time petition for
1. Under Pub. St. Mass. C. 161, $ 52, providing and obtain from the court successive executhat personalty and realty attached shall be held for tions in the original proceeding, the demand80 days after final judgment for plaintiff, the attach- ant evidently has no title. The property atment allowed by id. c. 147, $ 85, in a proceeding by tached consisted of separate and distinct para wife for separate maintenance and the custody of children, being for the purpose of securing such cels; and the second execution, under which maintenance as may be awarded to the wife, and the tenant claims, was levied by sale thereof there being no final judgment in such a proceeding, remains for the further security of the wife upon different tracts from those which had after the satisfaction of any execution against the been sold by virtue of the first execution. attached property, so far as the property has not
The attachment in a proceeding for sepabeen applied thereto, and a sale under subsequent rate maintenance is made “as in the case of executions confers a good title against any one to whom the property has been conveyed while un. While it is provided by Id. c. 161, § 52, that
a .”. 147§ . der the attachment.
2. The return to such attachment may be real or personal estate attached shall be held amended in order to show that the officer levying only for 30 days after final judgment for the thereon in the clerk's office; such amendment be- plaintiff, the laws relating to attachment in ing only a true statement of what was done under suits at common law or in equity do not apthe attachment, and not an act in completion ply, except so far as they are not inconsistthereof.
ent with the sections of the statute which Appeal from superior court, Dukes county. permit such attachments in cases like the one
This was a writ of entry brought by Charles at bar. In libels for divorce or petitions for S. Downs against Samuel Flanders to recover separate maintenance, there is no final judga life-estate in lands conveyed to demandant's ment which closes the proceeding as ordinary deceased wife by one Mayhew, the lands at actions are terminated. The orders and dethe time of such conveyance being under an crees in reference to support, alimony, etc., attachment issued on the petition of May- remain open always to revision, and the purhew's wife for separate maintenance, as pro- pose of an attachment is to secure such suit. vided by Pub. St. Mass. c. 147, § 33. Partable support and maintenance to the wise and of the land so attached had been sold on ex- her children as may be awarded, by enabling ecution subsequent to Mayhew's conveyance the court to enforce its decrees, as they may
be originally made or modified upon the prop- the crime to be of such a nature as of itself to aferty thus sequestered. Chase v. Ingalls, 97 fect his credibility, and evidence of a conviction Mass. 524; Barney v. Tourtellotte, 138 Mass. ment."
for assault is admissible for purposes of impeach. 106; Burrows v. Purple, 107 Mass. 428. It 2. In an action of tort for defendant's assault has been held in Allen v. Allen, 100 Mass. on plaintiff, occasioned by the former's attempt to 373, that an action at common law would not ive lands, evidence that defendant dug a trench on
remove a division fence between their respect-. lie to recover arrears of alimony; and this, his own land, across a right of way claimed by for the reason that the court had power to re- plaintiff's husband, into which the husband feli, vise and alter its decrees, or make any decree and was injured, is inadmissible to prove malice, in such matters that it might have made in should fall into the same, and that it was not
in the absence of further proof of an intent that he the original suit. Slade v. Slade, 106 Mass. merely dug as a denial of the husband's claim. 499. The same reason is applicable in cases
Exceptions from superior court, Bristol of separate maintenance. The party in whose county. favor a decree has been rendered must resort
E. Avery and T'. F. Desmond, for plaintiff. to the court rendering it for aid in its enforce- A. J. Jenninys and L. L. B. Holmes, for dement; and an execution, where the decree is fendant. for the payment of money, is an appropriate remedy. In Sewall v. Sewall, 130 Mass. 201, DEVENS, J. The case at bar is an action 204, it is clearly intimated that, in an attach- of tort, brought to recover for injuries susment of property on a libel of divorce, the tained by an alleged assault on the plaintiff libelant is entitled to successive executions by the defendant, while the defendant was in until the attached property is exhausted, and the act of removing a division fence between that the attachment continues until that the lands of the defendant and those of the time. It is said by Mr. Justice LORD: “If plaintiff, after notice to the plaintiff of his the property attached is sufficient in value to intention to remove the same. At the trial, satisfy but one execution, it has done all that the defendant having testified on his own be the libelant had a right to expect it to do. If half, the plaintiff was permitted to offer evithe property was of much more value than dence, by a record of this court, of the conthe amount of the execution, then the libel-viction and sentence of the defendant for the ant might satisfy the execution out of the same assault. This evidence was admitted, property, and retain the attachment upon the against the exception of defendant, for the balance of it for further security; or, if the sole purpose of affecting his credibility. Pub. property were of such a nature that the offi- St. C. 169, § 19, provides that the conviction cer might be justified in converting it into of a crime may be shown to affect the credicash, he might so convert it, satisfying the bility of a witness, and it is urged that this execution out of the proceeds, and hold the means that the crime shall be of such a natremainder under the attachment." We are ure as in itself to affect the credibility of a of opinion that after the satisfaction of the witness, and that the mere fact of a convicfirst execution the attachment still continued tion for an assault could not be of this charfor the further security of the wife, so far as acter. The language of the statute is explicit the property attached had not been applied and general, and permits the conviction of thereto, and that it was in the power of the any crime to be given in evidence, leaving probate court to issue successive executions, to the jury to judge how far the credibility of the levy of which would confer a good title a witness may be affected thereby. Undoubtas against any one to whom the property had edly a conviction of some offenses should afbeen alienated while under the attachment. fect this but slightly, perhaps not at all. Pre
The demandant objects that the original vious to the statute of 1852, c. 312, § 60, the attachment was not valid because the oficer's law in regard to the impeachment of wit. return did not show that he had deposited a nesses by the evidence of convictions of other copy of the petition and order thereon in the offenses had become very unsatisfactory, as clerk's office. The officer was permitted to pointed out by Chief Justice CIIAPMAN in amend his return in accordance with what Com. v. Hall, 4 Allen, 305, and artificial disthe superior court must have found to be the tinctions had existed by which, in some infact. 'He was not allowed to do any act in stances, evidence of convictions for offenses order to complete his attachment, but to state which bore very strongly on the credibility of truly what he had done in making it. The a witness was not received, while in others amended return, when allowed, became a evidence was received of a conviction which part of the records of the court, and was ad- could only bear very slightly on this question. missible to show the attachment on which It was deemed wiser, therefore, that any conthe tenant relied. Judgment for tenant. viction of a crime sljould be received; that
such weight should be attributed to it on this
question as, in the judgment of the tribụnal (150 Mass. 108)
before which the witness appeared, it deQUIGLEY 0. TURNER.
served. The statute puts all convictions of (Supreme Judicial Court of Massachusetts. Bristol. Nov. 12, 1889.)
crime on the same footing,—those which
would formerly have excluded a witness: IMPEACHMENT OF WITNESS-MALICE-EVIDENCE.
those which have heretofore gone to credi. 1. Pub. St. Mass. c. 169, $ 19, which provides bility; and those which formerly would not that the conviction for a crime may be shown to affect the credibility of a witness, does not require have been admissible at all. Gertz y. Rail
road Co., 137 Mass. 77, 79. The évidence of 2. Under Rev. St. Ill. c. 106, § 1, which prothe conviction of the defendant, who was also vides that partition of land may be compelled "by
bill in chancery, as heretofore, čr by petition,” and a witness, was therefore properly admitted section 16, which directs that the court shall appoint for this limited purpose.
three commissioners to make partition, a decree The plaintiff's husband claimed a right of in partition ordering sale of the property without way over certain premises of the defendant, the proceeding is by bill, and not by petition.
appointment of commissioners is erroneous, though which claim was disputed and denied by the 3. A private act of the legislature, confirming defendant; and, for the purpose of showing the transfer of a ferry from one individual to anmalice on the part of the defendant in the as- other, does not affect the rights of third persons.
4. The possession of grantees of a tenant for sault on the plaintiff, she was allowed to life is not, during the life of the grantor, adverse show, against the exception of the defendant, as against the reversioner, within the purview of that he dug a trench across said way, into the statute of limitations. which her husband, while attempting to pass Error to circuit court, Cass county; Cyrus along said way, as he claimed the right to do, EPLER, Judge. fell, and was injured. In an action of tort Morrison & Whitlock, for plaintiffs in erfor injury to the person, the manner and ror. Pollard & Phillips, for defendants in manifest motive of the assault, and the cir-error. cumstances under which it occurred, may be given in evidence upon the question of dam- CRAIG, J. This was a bill for partition, ages, as the same physical injury may be at- brought by Ann Harris and Mary Francis tended with more aggravated effects on the Byers, in which they claim the undivided mind when maliciously done. Hawes v. one-half of the ferry crossing the Illinois rivKnowles, 114 Vass. 518; Smith v. Holcomb, er opposite the town of Beardstown, Cass 99 Mass. 554. It would certainly be going county, with all and singular the heredita. very far to receive as evidence of malice ments and appurtenances thereunto belongtowards the plaintiff, which might enhance ing, including all ferry landings belonging damages or as evidence to discredit the wit- to the same, situated both in Cass and Schuyness, the fact that in a controversy with the ler counties; also all boats, tackle, and propplaintiff's husband. at another time, and upon erty belonging thereto, and the franchise another subject than that of the division thereof. The complainants claim title to an fence, the defendant had conducted himself undivided one-half of the property as devi. maliciously towards, and had injured, him. sees of Edward Tull, who died in 1842. It In York v. Pease, 2 Gray, 282, which was an appears from the evidence contained in the action of slander, evidence of a quarrel be- record that the land on which the ferry tween the plaintiff's father (who was also has its landings at Beardstown was entered the prochein ami by whom the action was in 1827 by Thomas Beard and E. C. March, brought) and the defendant was held to have who laid out Beardstown on the north fracbeen rightfully excluded. But if it were tional-half of section 15, at that time in Morcompetent to receive such evidence, with re- gan, but now in Cass, county. Prior to 1828 lation to plaintiff's husband, that offered and Beard had established a ferry over the Illinois received does not of itself show any malicious river where Beardstown now is. The town conduct towards him, nor appear to have been was laid out in 1829, and the ferry was duly connected with any other evidence which licensed, and the license paid by Beard. From would fairly lead to the inference that it was 1837 to 1865 the ferry was duly licensed to so. The defendant and the husband disputed Beard and his grantees by the commissioners over the right of way asserted by the latter of Cass county, and from 1865 till now by the over defendant's land. The defendant dug a city of Beardstown, and the license fee paid trench upon his own land, across the way, as to Beardstown. That the owners of the boat claimed. There was nothing to show that he landed on the lands above described, and did this with any purpose except as a denial claimed the right to do so since the ferry was of the claim of the plaintiff's husband, and an established. The usual places of landing assertion of his own right to close such way, were on an unplatted piece of ground, and on or with any intent that the husband should a public street of said city. Beard was the fall therein, or be injured thereby. The evi- sole owner of said boat up to September 8, dence as to this matter was erroneously ad- 1840, when, for the expressed consideration mitted, and upon this point the exceptions of of $3,500, his wife joining in the deed, he condefendant must be sustained.
veyed to Edward Tull the deed, containing We do not consider the other exceptions of the following: “Do bargain, sell, and quitthe defendant, as the questions presented by claim unto Edward Tull, bis heirs and asthem are not likely to arise in a similar form signs forever, all right, title, and interest in at another trial. Exceptions sustained. and to the undivided half of the ferry cross
ing the Illinois, river opposite the town of (130 Ill. 525)
Bearąstown, Cass county, Illinois, with apROHN et al. v. HARRIS et al. purtenances thereto belonging." Upon mak
ing the purchase Tull took possession of the (Supreme Court of Illinois. Oct. 31, 1889.)
ferry, and with Beard ran and operated it unFERRIES–PARTITION-ADVERSE POSSESSION.
til he died in 1842. Tull died testate, and 1. The owner of an undivided interest in a ferry, including both franchise and landings, may by his will devised “the rents, profits, and all ry, including both franchise and landings, may his interest in said ferry to bis wife, Mary bring a bill for partition of the entire property.
Ann Tull, during her natural life, for the within, and governed by, the conveyance act, maintenance of herself and child or children, or whether it was to be regarded as a personand their nurture and education,” and after al chattel in its sale and transfer; and the her decease devises the same to his son, court held that a ferry franchise could only David Tull, or the proceeds thereof, if sold, be transferred in accordance with the proand, if any posthumous child or children be visions of the statute in reference to the conborn, then said property, or the proceeds veyance of real estate. Strictly speaking, it thereof, if sold, to be divided equally between may be conceded that a ferry franchise is not said David and such child or children. Tull real estate, but it partakes so far of the natleft surviving him a widow, Mary Ann, who ure of real estate that we are inclined to subsequently married David Clendenning, hold that it may be partitioned in the same one son, David Tull, and a posthumous child, manner as real property. The land on each Mary Francis, who afterwards married Abra- side of the river where the boats landed be. ham Byers. The widow, upon the death of longed to, and was a part of, the ferry, and her husband, went into the possession of the no question can arise as to the jurisdiction of ferry, and so continued until May 19, 1849, the court to award a partition of the land; when she sold and conveyed her life-estate and the franchise to cross the river and setherein to Thomas Beard. From the date of cure tolls was so connected with the land that this deed Beard operated the ferry until his it may, for the purpose of this proceeding, be death. He died testate, and by his will de regarded as a part thereof. vised the ferry property in trust to his execu- It is also claimed that whatever rights tors, one-half of net proceeds of ferry to be complainants had in the property are barred paid to his wife, balance of his property to be by the statute of limitations, It may be equally divided among his six children, and true that defendants' grantees, Jones & upon death of his wife reversionary interest Thompson, held possession of the property of lands devised to her to be equally divided under color of title, and paid all taxes for among his children. The will also contained more than seven years; but the bar of the this provision: That the interest in the ferry statute of limitations cannot be invoked to at Beardstown, and purchased by him of defeat the title of the complainants, under Mrs. M. A. Clendenning, and contingent up- the facts of this case, on the ground that the on his life, “be insured in continuation of the possession was not adverse. It will be repolicy of insurance which he now has, and a meni bered that Edward Tull devised his unsufficient sum be taken from the annual re- divided half of the ferry to his wife, Mary ceipts of the ferry to pay the annual premi- Ann, for life, while the remainder of the fee ums before net proceeds be declared.” On passed to complainants. Mary Ann sold and the 20th day of June, 1853, the executors of conveyed this life-estate to Beard in 1849. the estate of Beard, by deed of that date, con- Beard held under this title until his death, veyed to the six children of said Beard all the and Jones & Thompson, who subsequently interest Thomas Beard had in the ferry, and acquired Beard's title, held under the same the lands in Beardstown and in Schuyler title, and the defendant occupies under the county belonging to the ferry, with all boats same title. The various deeds and wills were belonging thereto. It also appears that the upon record, so that each purchaser had nointerest acquired by the six heirs of Beard by tice of the title under which he occupied the mesne conveyances passed to the defendant property. Until the termination of the lifein the bill, Addie Rohn. It also appears that estate by the death of Mary Ann Tull, which Thomas Beard, and those claiming under him, did not occur until 1886, the complainants, have held possession and have operated the as remainder-men, had no right of entry, as ferry from the time Mary Ann Clendenning they had no right to the possession until the conveyed in 1849 down to the present time. death of the life-tenant; and until the death It also appears that Mary Ann Clendenning of the life-tenant the statute could not begin died on the 17th day of August, 1886. On to run. It is a plain proposition, as held in the hearing the circuit court found in favor Higgins v. Crosby, 40 mil. 260, that the statof complainants, and, without appointing ute does not run against a reversioner or recommissioners to make partition, ordered and mainder-man during the existence of the prior decreed that the property be sold. To re-estate, because during that time he has no verse this decree the defendants in the bill ap- right of entry. pealed.
By an act of the general assembly of the It is first claimed that a ferry is but a state of Illinois, approved February 26, 1867, franchise, and is in no respect real property, the transfer of the ferry property from Beard and a bill for partition will not lie. The to Jones & Thompson was confirmed, and the privilege of establishing a ferry, and taking title of Jones & Thompson in the same was tolls for the use of the same, is a franchise. declared to be absolute and perfect, with full 3 Kent, Comm. 458. The same author says, power to sell and convey, which act took ef(page 459:) “An estate in such a franchise fect from its passage. This act could not and an estate in land rest upon the same affect complainants' title. It merely conprinciple, being equally grants of a right or firmed in Jones & Thompson such rights as privilege for an adequate consideration.” In they had acquired under the purchase. The Dundy v. Chambers, 23 Ill. 369, the question legislature had no power to divest complainarose whether a ferry franchise is embraced ants' title, if an attempt had been made to do