as C. Greene, Esq., simply submits their rights and interests in the matters in ques tion to the care and protection of the court.

The

The main question raised by the pleadings, therefore, is whether the word "issue," as used in the clause of said will above quoted, should be restricted to the children of said Sarah C. Rickard, all of whom, it is to be observed, are still living, or should be construed to include her said grandchildren, also. There is some conflict of judicial authority regarding the signification of the word "issue" when used in a will, where nothing appears to limit the legal import thereof; some authorities holding that in such case the word is synonymous with "child" or "children," while others hold that it is a word of purchase, and not of limitation, and hence includes all the descendants in being at the time the term becomes operative. cases in England upon this subject are very unanimous in support of the doctrine that the word "issue, " unconfined by any indication of intention, includes all descendants, and that intention is required for the purpose of limiting the sense of that word, restraining it to children only. Leigh v. Norbury, 13 Ves. 340; Cook v. Cook, 2 Vern. 545; Bernard v. Mountague, ì Mer. 422, 434; Haydon v. Wilshere, 3 Term R. 372; Hockley v. Mawbey, 1 Ves. Jr. 143, 150; Davenport v. Hanbury, 3 Ves. 257; Carter V. Bentall, 2 Beav. 551; Freeman v. Parsley, 3 Ves. 421; Slater v. Dangerfield, 15 Mees. & W. 263; Pope v. Pope, 14 Beav. 591, 594; 11 Amer. & Eng. Enc. Law, 870, tit. "Issue Includes Descendants," and cases cited. See, also, 1 Jarm. Wills, 89; 2 Williams, Ex'rs, 999; Redf. Wills, part 2, 355 et seq. the later English cases seem to manifest a bias on the part of the courts against so broad a construction of the word "issue, by ingrafting a great number of exceptions upon said rule, and by seizing upon very slight indications of an intention on the part of the testator to limit the meaning of said term, yet we find no English case which assumes to lay down a doctrine contrary to the general rule as above stated. In this country, while the decisions are not so uniform as those in England in support of said rule, yet the decided preponderance of authority is in favor thereof. The case of Wistar v. Scott, 105 Pa. St. 200, 213, is a good illustration of the class of cases which adopts said rule. In that case after devising "Prospect Hill" lot to his daughters Catharine and Sarah "for and during all the term of their natural lives, and the life of the survivor of them," the testator disposed of the estate in remainder in the fol- | lowing words: "And from and immediately after the decease of the survivor of them, I give the same unto the male issue, then living, of my said son Richard, their or his heirs and assigns, in fee; but, if no such issue shall then be living, in such case I give the same unto all the children of my said daughters Catharine and Sarah and my son Richard, their heirs and assigns, in equal parts, according to the number of them." In construing this provision of the will the court said: "The

And while

word 'issue' in a will, prima facie, means the same as heirs of the body, lineal descendants indefinitely, and is to be construed as a word of limitation; but the prima facie construction gives way if there is anything on the face of the will to show that the word was intended to have a less extended meaning, and to be applied to children only, or, as in this case, the lineal descendants of a particular class in being at a specified time. Slater v. Dangerfield, 15 Mees. & W. 263. The phrase, male issue of my son Richard then living,' is a descriptio personarum, designating the class of persons to whom the remainder in fee was given upon the termination of the particular life estate; and the question is, who composed that class when the survivor of the testator's two daughters died, September 21, 1866? In other words, who, according to the true interpretation of the will, were the male issue of testator's son Richard, living at that time? ・・ When, as in the present case, the word is manifestly used as descriptive of the devisees, and is also restricted to such issue as shall be living at a specified time, it is always construed as a word of purchase, embracing all lineal descendants of the person named, in being at the time so specified, unless it clearly appears from the context that the testator intended otherwise. See, also, Robins v. Quinliven 79 Pa. St. 333, 335; Ferry Co. v. Sisson, 17 N. J. Eq. 475, 484, 486; Ward v. Stow, 2 Dev. Eq. 509; Weldon v. Hoyland, 4 De Gex, F. & J. 564; Jackson v. Jackson, 153 Mass. 374, 26 N. E. Rep. 1112; 2 Williams, Ex'rs, 1197, and note on page 1198; Hawk. Wills, 87, tit. "Issue;" Jarm. Wills, (Ed. of A. D. 1881.) 101. In Massachusetts it is provided by statute that "the word issue,' as applied to the descent of estates, shall include all the lawful lineal descendants of the ancestor." Pub. St. Mass. c. 3, § 3. The court of appeals of New York while manifesting considerable dissatisfaction with the construction put upon the word "issue,' by the English courts, and an inclination to look for something la the context of the testator's will which will take the case out of the rule aforesaid, yet recognize the binding force of the adjudged cases as to the primary meaning of said word. See Paliner v. Horn, 84 N. Y. 516, 518, and cases cited.

"

The counsel for the two of the children of said Sarah C. Rickard, has cited, among others, the last-named case, and also the case of Taft v. Taft, 3 Dem. Sur. 86, in support of his contention that the word "issue" should be limited to children. The first-named case is against him, while the last, though fully sustaining his position, and, so far as we are able to ascertain, not having been overruled, yet, as it professes to follow Palmer v. Horn, supra, while in fact it decides precisely to the contrary thereof, we do not think it entitled to very much weight. The surrogate evidently misconceived the purport of Palmer v. Horn, and, while following the spirit thereof, clearly mistook the letter, as in that case the court found, from indications in the will, that the testatrix used the term "issue" as synoymous with children," and that by the word

9.99

"children" she had herself interpreted the word "issue." Taft v. Taft was decided by the surrogate of Kings county in 1885. The surrogate of New York county, in 1883, on the contrary, in Murray v. Bronson, 1 Dem. Sur. 217, in a very elaborate opinion, in which he reviewed at length the English and American decisions bearing upon the proper construction of the word "issue," fully recognized the binding force of the rule hereinbefore adopted. The rule contended for by the counsel for said children of Sarah C. Rickard has been adopted in Kentucky, where in Moore v. Moore, 12 B. Mon. 655, it was held that "'issue,' in common parlance, and as used generally by the community, signities immediate descendants,-children. That decision was evidently based upon the authority of Chancellor Kent, (see 4 Kent. Comm. 278,) who says: "The word 'issue' may be used either as a word of purchase or limitation, but it is generally usod by the testator as synonymous with 'child' or 'children.' Chancellor Kent was evidently opposed to the English rule of construction as above set out, on the ground that it tended to defeat the intention of the testator. Judge Redfield, in his excellent work on the Law of Wills, (see part 2, p. 363,) takes the same ground, and strongly argues in favor of following the lead of Chancellor Kent, in breaking away from the English decision, and, as he says," redeeming the law from a perversion under which it has long labored, and which has already produced infinite injustice, and, unless abandoned, will be liable to produce an incalculable amount in the future. "1 But, while recognizing the importance which should be attached to these eminent authorities, yet we feel that the rule of construction, in cases of this sort, has become too well settled to be disturbed by judicial decision, even if we were disposed to take the view adopted by Chancellor Kent; for it is of the utmost importance that, in a matter so vital to the interests of the people at large as the distribution of testate estates, there should be uniformity of decision in interpreting the ordinary language used in wills.

But the said children of Sarah C. Rickard contend that the construction of said bequest most consistent with the intention of the testatrix is to allow them to share equally in the fund to be distributed, to the exclusion of the more remote descendants, i. e. the grandchildren; and this, not only upon the authorities, but upon the broad and fundamental principle of carrying out the most probable intention of the testatrix. We have no means of ascertaining the intention of the testatrix as to the disposition of said trust fund after the death of the life tenant, except as disclosed by said bequest, which simply provides that at the time of her decease "said Edward D. Pearce shall pay, transfer, and deliver over the said trust property then remaining to the lawful issue of the said Sarah C. Rickard,

'In California Civil Code, § 1386, "issue" is ased in the same sense as "child." In re Newman's Estate, 75 Cal. 213, 16 Pac. Rep. 887.

then alive." There is certainly nothing in this language which shows an intention to restrict the meaing of the word "issue" to children, and hence the primary signification of said term, as above set forth, must prevail.

But it is further contended that whenever the gift to issue is in any way substi tutional in its nature, or issue are to take in a representative, or quasi representative, way, "issue" means "children," to the exclusion of more remote descendants. It is doubtless true that where the gift to the issue is substitutional, they take per stirpes and not per capita. That is to say, where issue are pointed out in the will to take with reference to the share of the parent, they take by way of substitution. Minchell v. Lee, 17 Jur. pt. 1, 727; Dexter v. Inches, 147 Mass. 324, 17 N. E. Rep. 551. But, as we have already seen, there is nothing in the will before us to show an intention on the part of the testatrix that the grandchildren of said Sarah C. Rickard should not share equally with her children in the distribution of said trust fund. Moreover, a substitutional taking, or a taking per stirpes, strictly speaking. can only occur in case of the death of the stirps, or stock, and in the case at bar all of the children of said Sarah were living when said gift over took effect. There is therefore no room for the application of the rule contended for, even assuming that it would apply had one of the children of said Sarah deceased in her lifetime, leaving children. We therefore decide that the grandchildren of said Sarah C. Rickard are entitled to share per capita with her children in the distribution of the trust fund in question. As it is evident that the specific property bequeathed by the will under consideration cannot be conveniently divided among those entitled thereto, we advise that the same be sold by the complainants, and the proceeds thereof distributed in accordance with this opinion.

1. One partner cannot maintain trover for the recovery of property conveyed by his copartner in fraud of the partnership. Cornells v. Stanhope, 14 R. I. 99, followed.

2. In trover by one partner to recover property conveyed by his copartner in fraud of the partnership, the fact that defendant did not plead in abatement the nonjoinder of such copartner does not make the action sustainable.

3. The rule of law that a plea in abatement for nonjoinder must be filed to defeat an action in tort brought by a tenant in common does not apply to an action in trover brought by one partner to recover property conveyed by his copartner in fraud of the partnership.

Trover by Emma F. White against James Campbell. Plaintiff had judgment, and defendant thereupon moved for a new trial. New trial granted.

Cyrus M. Van Slyck, for plaintiff. Claudius B. Farnsworth and Claude J. Farnsworth, for defendant.

MATTESON, C. J. This is an action of trover for a stock of millinery and dry goods, to which the defendant has pleaded merely the general issue. The plaintiff and one Emma F. Campbell entered into partnership about September 1, 1890. By the terms of the partnership agreement, the business was to be carried on at Mansfield, Mass.; but November 1, 1890, the firm having on hand a surplus of goods beyond the requirements of its trade in Mansfield, Miss Campbell, with the concurrence of the plaintiff, took a store at Ashton, in this state, removed to it the surplus stock, and carried on there the business of the firm. December 6, 1890, the store of the firm in Mansfield, of which the plaintiff was in charge, took fire, and the stock in it was damaged to a considerable extent by smoke and kerosene oil. Subsequently these damaged goods were also removed to the store in Ashton, which continued in charge of Miss Campbell, the plaintiff spending only a day or two there between December 10, 1890, and March 1, 1891. Prior to the removal of any of the goods to Ashton, the plaintiff had purchased for the firm, from one Rosendale, goods amounting to $500. February 1, 1891, the bill for these goods had not been paid, though both partners had been called on by Rosendale for payment, and the plaintiff bad promised several times that payment should be made. At this date, Rosendale insisted on the immediate settlement of his demand, and finally Miss Campbell, in the absence of the plaintiff, and without consulting her, made a transfer of the stock to him, in order, as alleged by the defendant, to settle the claim, and avoid suit. Rosendale took possession of the goods under the transfer to him, and put Miss Campbell in charge of the business until a purchaser for it should be found. Two weeks later, Rosendale sold the goods to the defendant, who is the father of Miss Campbell, for $475. Rosendale thereupon turned the goods over to the defendant, and he permitted his daughter, Miss Campbell, to continue in possession of the goods and in the management of the business. The plaintiff charges that the transfers to Rosendale, and from him to the defendant, were part of a scheme between Rosendale, the defendant, and his daughter to get the goods into the hands and possession nominally of the defendant, but really for the benefit of the daughter, and for the purpose of depriv. ing the plaintiff of her interest in the partnership property. The case was tried in the court of common pleas, and the jury returned a verdict for the plaintiff. The defendant excepted to the rulings of the court in certain particulars, and now petitions for a new trial, alleg. ing that the rulings excepted to were erroneous, and that the verdict is against the evidence.

The first question presented by the petition is whether the action can be maintained. The right of partners to sue at law for the recovery of property, or its value, conveyed by one partner in frand of the partnership, is a subject which has given rise to widely differing opinions, and to no little confusion. We think that

an

it will be found on investigation that the authorities, notwithstanding some dicta and intimations to the contrary, as well as the better reasons, support the view that one partner alone cannot maintain such an action. This was the rule recognized, as settled by the authorities, in Cornells v. Stanhope, 14 R. I. 99, and the cases therein cited. It proceeds on the theory that the fraudulent sale or transfer passes the title to the property at law, as against the fraudulent partner, and that since the partners cannot sever in an action at law, but must sue jointly, the injured partner is at law without a remedy for its recovery; there being an inconsistency, not to say absurdity, in permitting the partner who has perpetrated a fraud to recover, as one of the plaintiffs, in action against the person participating with him in the fraud. Richmond v. Heapy, 1 Starkie, 202; Jones v. Yates, 9 Barn. & C. 532; Wallace v. Kelsall, 7 Mees. & W. 264; Greeley v. Wyeth, 10 N. H. 15; Homer v. Wood, 11 Cush. 62; Tay v. Laid, 15 Gray, 296; Farley v. Lovell, 103 Mass. 387; Wells v. Mitchell, 1 Ired. 484; Church v. First Nat. Bank of Chicago, 87 III. 68; Mason v. Tipton. 4 Cal. 276. Richmond v. Heapy, 1 Starkie, 202, was an action of trover by the plaintiff, who had been declared a bankrupt, against the defendants, as assignees under the commission, to try the validity of the commission. The defendants relied on proof of two bills of exchange, drawn by the firm of Heapy, Spear & Wright, the petitioning creditors, which purported to be for value received in oil, and to be accepted by the plaintiff. The plaintiff replied to this by evidence of the transactions between Spear and himself, by which it appeared that the proceeds of the oil had been used by him in taking up his previous acceptances for the accom. modation of the firm, and that the bills in question had been accepted, also, for their accommodation; and he also put in evidence the undertaking by Spear to provide for these acceptances when due. The defendants contended that the whole transactions between the plaintiff and Spear were collusive, and with a view to defraud the other two partners, and were about to offer evidence in support of the contention; but Lord Ellenborough held that, assuming the fraud, yet, as the defendants could recover on the bills only through Spear, it he had so behaved that he could not recover as one of the three he could not be a petitioning creditor, and that, as the defendants could not support an action at common law on the bills, they could not make them the subject of a debt as petitioning creditors, so as to support the commission. Again, in Jones v. Yates, 9 Barn. & C. 532, which may be regarded as a leading case on this question, one Sykes was a partner in two firms, and took the money and bills of one to pay his debt to the other. It was held that neither assumpsit for the money, nor trover for the bills, would lie in the names of the partners to whom the money and bills had belonged. Lord Tenterden, in the opinion of the court, remarked that there was no instance in which a person had been allowed as plaintiff in a court

their threats to take forcible possession of the body, and of her aversion to the disgrace of any strife over his remains; third, that, as the widow of said Thomas F. Hackett, she has the right to control the place of burial, and that she has not surrendered this right.

Upon the first and second grounds set up in the answer we did not hear testimony, preferring first to consider the third ground, in which the widow claimed the right to control the place of burial, as against the next of kin, which might be decisive of the case. We come, then, to the question whether the right to control the burial of a deceased husband is in the widow or in the next of kin. In Pierce v. Proprietors, 10 R. I. 227, it was held that, while no one can be considered as the owner of a dead body, in any sense whatever, yet there is a quasi property in the custodian, in the nature of a trust for the benefit of all who have an interest in it, which the court will regulate. In that case a widow removed the remains of her husband, which, with her consent, had been buried in his own lot, and there had rested about 13 years. The court held that, as the complainant, a daughter, was then the owner of the burial lot which had been invaded, and so was the custodian of the remains, they should be restored to the place from which they were taken. There are other cases of this sort, where the question has arisen as to the right of the next of kin, after burial; not. ably the cases of Wynkoop v. Wynkoop, 42 Pa. St. 293, 82 Amer. Dec. 506, with notes; Report of Hon. S. B. Ruggles, (The Law of Burial,) 4 Bradf. Sur. 503; Renihan v. Wright, (Ind. Sup.) 25 N. E. Rep. 822. In Bogert v. City of Indian apolis, 13 Ind. 134, where the question was whether the city or the next of kin should beve control of an interment, the court decided in favor of the next of kin. In all these cases general expressions were used by the courts to the effect that the next of kin had rights exclusive of all others. Such expressions were appropriate to the case under consideration, but are not to be taken as authority upon the question which is now before us. In Pierce v. Proprietors, and Wynkoop v. Wynkoop, supra, the right of a widow to remove the remains of her husband, against the will of the next of kin, was denied upon the ground of her consent and long acquiescence in the burial; but those cases do not decide that the next of kin had a superior right to that of the widow at the time of the burial. The third conclusion of Mr. Ruggles, in his report, cited above, is" that such right, in the absence of any testamentary disposition, belongs exclusively to the next of kin." But in a note to Weld v. Walker, in 14 Amer. Law Review, (volume 1, N. S.,) 62, it is said that Mr. Ruggles added a note to the original report, in explanation of the term "next of kin," stating that it was not employed for the purpose of denying or questioning the legal right of a surviving husband to bury his wife's remains, or to reinter them if disturbed. In Snyder v. Snyder, 60 How. Pr. 368, the right to select a place of burial was awarded to a son, instead of the

widow. The son was born of a former. marriage, and the widow was a second wife, who had been married to the deceased but four years, with no children; and the last two years of his life had been spent in a lunatic asylum. The widow desired the remains to be buried in a lot owned by her father, and the son desired to bury them in a lot owned by the deceased at his former home, in Connecticut, by the side of his first wife and deceased children. Under these circumstances the court decided in favor of the son. The judge giving the cpinion concluded with these words: "I mean to recognize the fact that circumstances may exist which should give the widow the preference over the son, but in this case I think the claim of the son is to be preferred. We know of no case that denies to a husband, who was not separated from his wife, the right to select the place of burial. Even in case of a separation the husband has been beld liable for the expense of interment, which had been incurred by a relative of the wife without his knowledge or consent. Am. brose v. Kerrison, 10 C. B. 776. In Durell v. Hayward, 9 Gray, 248, the court assumes "the indisputable and paramount right, as well as duty, of a husband to dispose of the body of his deceased wife by a decent sepulture in a suitable place. See. also, Cooney v. Lawrence, 11 Pa. Co. Ct. R. 79. But if, as a rule, where there have been no discordant relations, a husband has the right to bury his wife, why should not the widow have the same right with reference to his remains? A woman is naturally quite as sensitive in such a mat. ter as a man. It would be quite as great a shock to her to have the body buried against her wishes as it would be to a man. Hers is a relationship closer than that of kindred, for it is the teaching of Holy Scripture: "A man shall leave father and mother, and shall cleave to his wife, and the twain shall be one flesh." chances of complications by remarriage are no greater in her case than in that of a man, and the reasons which give the right to the husband are equally applicable to her. It would be a shock to the sensibilities of humanity to say that the reasonable wishes of a wife in regard to the burial of her husband should not be entitled to paramount respect, when such a right would be accorded to him. It is useless to say that a married woman cannot make a contract, for as a widow she is under no disability and the funeral expenses are a preferred charge on the busband's estate. This is not a question of contract, nor of liability, but of sentiment and propriety. In no case is it an absolute right, but, as this court has already said, "a sacred trust for the benefit of all who may, from family or friendship, have an interest in it," which should be prop. erly administered; and, as we now say, primarily administered by the wife, due regard being had to the circumstances of the case. As remarked by the court in Scott v. Riley, 16 Phila. 106: “A legal right of this character should be based upon natural affection or moral obligation. It should accomplish the object in a becom. ing manner." It is also added that to give,

The