time fixed, and completing the work within that time, were conditions precedent, which, not having been performed, the plaintiff must show that he was not in fault in not performing, before he can recover anything, which he has not done, as his lack of funds and consequent failure to complete the work within the time were due to his own fault in not negotiating a mortgage for the full balance of the contract price; the defendant rightly neglecting and refusing to execute one for a less sum. The other point is that the rule of damages was wrong. As to the first point. The house was to be completed by the first day of September, 1884. It was not completed then, and the plaintiff kept on with the work, as before, until the latter part of the next month, when the defendant stopped his further work, and went on and completed the house herself. Now, considering-what we do not decidethat these were conditions precedent, and that the defendant was in fault in the respect claimed, yet his right of recovery is not wholly taken away thereby; for, when work is to be done by a time certain, the employer, by allowing it to go on afterwards, thereby treating the contract as still in force, waives the materiality of time, and can claim only such damages as he has sustained by reason of the delay; for it would be a fraud on. the employe for the employer to lie by in such a case, and see the work go on, and then step in and take the benefit of it without paying for it. Sinclair v. Tallmadge, 35 Barb. 602; Nibbe v. Brauhn, 24 Ill. 268. As to plaintiff's not raising money to pay himself, by negotiating a mortgage on the house as stipulated, the defendant, by stopping plaintiff's further prosecution of the work, and going on and completing it herself, has virtually refused to permit him to raise money in that way, and so she must pay in the ordinary way if she is otherwise liable. As to the measure of damages. The plaintiff was permitted to recover what his labor and materials were worth to the defendant, she having taken the benefit of them; whereas defendant claims the way was to estimate the whole work at the contract price, and deduct from that the amount requisite to complete the part left unfinished. But there are two reasons why we need not inquire into this matter. One is that the defendant admitted in the court below, if she was liable at all, that the rule of damages adopted was correct; and the other is that no exception was taken to the charge of the court on the subject of damages. The defendant excepted only to "the refusal of the court to charge as requested, and to the charge on the points of the requests not complied with;" but there was no request on the subject of damages. Judgment affirmed. COMEGYS v. JONES. (Court of Appeals of Maryland. May 27, 1886.) 1. WILLS-CONSTRUCTION-LAW WHEN WILL TAKES EFFECT. Wills must be construed with reference to the law as it existed when they took effect. 2. SAME-DEVISE-CONSTRUCTION-CONTINGENT REMAINDER. Prior to the act of 1862, (chapter 161,) where there was a devise to A., and if he dies without issue then to B., A. took the fee, and the devise over was void because the contingency was too remote. Appeal from circuit court, Queen Anne county. Joshua W. Bryant, Urie Townsend, Edward Stake, and Howard Bryant, for appellant. John B. Brown and Edwin H. Brown, for appellee. IRVING, J. This was an action of ejectment brought by the appellant against the appellee, and the only question involved depends upon the construction and effect of a clause in the will of Rachel Busick made in December, 1833, and which became operative by the death of the testator and probate of the will, in the same month and year of its execution. By the second clause thereof she devises as follows: "I give and bequeath unto Elijah Comegys, the oldest son of Samuel Comegys, my farm, where Zachariah Rolph now lives, together with fifteen acres of woodland to be laid off on the north of the public road. If he dies without issue, then I give and bequeath the same to his brother Samuel Comegys." The appellee claims, by virtue of a series of alienations and conveyances, from Elijah Comegys. The appellant claims as an heir at law of Samuel Comegys to whom the farm was given in the event of Elijah Comegys dying without issue, which it is admitted is the fact. over. This will took effect prior to the passage of the act of 1862, (chapter 161,) and must therefore be construed with reference to the law as it existed when the will took effect. James v. Rowland, 52 Md. 466; Estep v. Mackey, Id. 596; Woolen v. Frick, 38 Md. 437. Construing it without the aid of that act, the judgment of the court below must be affirmed. The devise is to Elijah Comegys, and "if he dies without issue," then In Woolen's Case, above cited, this court says: "These words, according to their settled legal construction, import a general or indefinite failure of issue; and, whenever found in a will, must be taken in their technical sense, unless there be something clearly demonstrating a different intention on the part of the testator, restricting them to a definite failure of issue, or failure of issue at the death of the first taker;" and the learned judge adds that "authorities need not be cited for a rule of construction so familiar and well established as this." The same rule was followed in Dickson v. Satterfield, 53 Md. 320; and was approved quite as emphatically in Estep v. Mackey, 52 Md. 600. Applying that rule, it is clear that the first taker took the fee, and the devise over was void because the contingency was too remote. We find nothing in the will, outside of this clause, to aid us in construing it, or which rescues it from the operation of the technical rule, which, in the absence of clearly expressed intention to the contrary, must control. Neither of the devisees mentioned in this clause are again mentioned in the will; therefore we can gather nothing further respecting the intentions of the testator as to them than is disclosed in this clause; and there is certainly nothing in it which can prevent the devise over from failing. Judgment affirmed. DAVENPORT v. SARGENT and another.1 (Supreme Court of New Hampshire. March 12, 1886.) WILL-CHARGES-SPECIFIC BEQUEST-GENERAL PECUNIARY LEGACY-GEN. LAWS N. H. CH. 203, § 14. The common-law rule that a specific bequest or devise will not be charged with the payment of a general pecuniary legacy, unless such clearly appears to have been the testator's intention, is not changed by Gen. Laws, N. H. c. 203, $14. Bill in equity. Facts agreed, which are stated in the opinion. Chase & Streeter, for defendants. ALLEN, J. In the will of Eliza Bixby, which is referred to in the case, besides certain specific bequests of chattels, the following items appear: "(5) It is my wish and will that no part of my personal property shall be disposed of by sale." (7) I give and bequeath unto my adopted son, Edwin R. Davenport, of South Newburg, Vt., the sum of five hundred dollars in money." Item 8 devises the testatrix's homestead to trustees, to apply the income to the support of John and Elizabeth Bixby for life, and, at their decease, to the support of some worthy person or persons, whom they may nominate, in the New Hampshire Centennial Home for the Aged, in Concord. After satisfying the specific bequests of personal property, the defendant, who is administrator with the will annexed, had not sufficient personal estate with which to pay the debts and expenses of settlement, and by license of probate court has sold the real estate. The plaintiff claims satisfaction of his legacy of $500, given in item 7 of the will, from the balance of the proceeds of the real estate. If the legacy cannot be satisfied in this way, he claims the whole remainder of the estate as his. In the construction of the will the intention of the testatrix, found by competent evidence, must govern. Rice v. Society, etc., 56 N. H. 191, 197, 198, 203; Brown v. Bartlett, 58 N. H. 511; Kimball v. Lancaster, 60 N. H. 264. There are in the will no express words of intention to charge the real estate, devised for a specific purpose, with the payment of the pecuniary legacy of $500 to the plaintiff. The presumption is that the testatrix did not intend that the general bequest should have any effect inconsistent with the specific devise of the land, or with the specific bequests of chattels, or with the direction that her personal property should not be sold; and no circumstantial evidence is offered to rebut that presumption, and the omission to offer is affirmative proof sus 1Reported by R. E. Walker, Esq., of the Concord bar. taining it. It may often be assumed that a testator intends all his testamentary gifts of real and personal property shall be fully satisfied; and the amounts and kinds of his property, at the time he gave directions for drafting his will, may be evidence on the question of his intention. Hoyt v. Hoyt, 85 N. Y. 142, 147. In this case there is a significant omission of evidence on the part of the plaintiff. He has not shown, nor offered to show, that the amount and kind of the testatrix's property, at the time she directed the will to be drawn, was such as to tend to show an intention that the plaintiff's legacy should be paid out of the realty, specially devised for a different use and purpose. What effect such evidence would have it is not necessary to inquire. For aught that appears, the testatrix's property at that time would tend to show that she expected his legacy to be paid out of personalty, which she afterwards disposed of, leaving no evidence of a purpose to charge his legacy on the land specifically devised. 3 Jarm. Wills, (5th Amer. Ed.) 424, note, 459, note. At common law a specific bequest or devise will not be charged with the payment of a general pecuniary legacy, nor abated in favor of a general legatee, unless such appears to have been clearly the intention of the testator. 2 Jarm. Wills, 608; 2 Redf. Wills, 462, 549; 2 Williams, Ex'rs, 1223; 1 Roper, Leg. 191. And the legislature could not have intended by any enactment to change the common law in this respect, without the clearly-expressed language of a statute for that purpose. By Gen. Laws, c. 203, § 13, it is provided that real and personal estate, not specifically devised or bequeathed, shall be first liable to the payment of the legal charges against the estate and legacies given by the will, and to make up the share of any after-born child, or of any child or issue of a child not provided for in the will; and by section 14 of the same chapter, if the unbequeathed and undevised property is not sufficient, that which is devised and bequeathed is made liable for the purposes named in section 13. There is nothing in the language of these sections showing that a specific legacy or devise is to be diminished or exhausted in satisfying a legacy not specific. The true construction of these sections is found by reference to other existing statutes upon the same subject. Section 15, c. 196, provides for the order in which demands against the estate shall be paid, and shows that existing and established priorities were not changed by anything in sections 13 and 14; and chapter 196, § 6, providing that personal property specifically bequeathed should not be sold if not needed for the payment of debts, makes it plain that specific bequests and specific devises, which have not been made inferior to specific bequests of personal property, cannot be charged with the payment of general pecuniary legacies. In the Revision of 1842, when sections 13 and 14 first appeared in that form, the commissioners in their report did not indicate any purpose to change the existing law upon the subject; and the universal understanding and practice since that time are proof that, in that revision, the legislature did not intend to so far change the common law as to require a pecuniary legacy to be wholly or partly paid out of specific legacies and devises. The change of the real estate into money by the administrator's sale did not destroy the character of the fund, nor impair the right of the beneficiaries beyond the payment of debts and expenses. * * * * * * If the plaintiff were the testatrix's son, he would not take the whole estate merely because his legacy failed. "Any child omitted or not provided for in the will," in chapter 203, § 13, is the same as "every child not named or referred to in his will, and who is not a devisee or legatee." Gage v. Gage, 29 N. H. 533, 543. The plaintiff was named in the will as a legatee within the meaning of the statute, and he cannot, because his legacy has failed, take something else not bequeathed to him,-much less can he take the whole estate. The defendants are entitled to the fund arising from the real estate, without contribution to make up the plaintiff's general legacy of $500. Case discharged. BINGHAM, J., did not sit. The others concurred. BOSTON & M. R. R. v. STATE.1 (Supreme Court of New Hampshire. March 12, 1886.) TAXATION-ABATEMENT-INTEREST ON OVERPAYMENT-RAILROADS-GEN. LAWS N. H. CH. 53, § 1, CH. 61, § 9. Under Gen. Laws, N. H. c. 53, § 1, and c. 61, § 9, a railroad corporation is entitled to interest on the sum abated from a tax assessed against it, which it paid under protest. Appeal from the assessment of the plaintiffs' tax of 1884. Facts agreed: The board of equalization valued the plaintiffs' road in this state at $2,000,000, and the tax which was assessed thereon the plaintiffs paid, under protest, October 30, 1884. This appeal was at once taken, on which the valuation was reduced $200,000, and an order was made reducing the tax $2,473.40, which was certified to the state treasurer, who gave credit for that sum on the plaintiffs' tax due October 30, 1885. The plaintiffs claim one year's interest on the reduction. Albin & Martin, for plaintiffs. The Attorney General, for the State. BINGHAM, J. The plaintiffs were required by law "to pay an annual tax as near as may be in proportion to the taxation of other property in all the cities and towns in the state." Laws 1881, c. 53, § 1. It has been adjudged that the plaintiffs were wrongfully required to pay the sum of $2,473.40 more than their legal annual tax for 1884, and paid the same to the state, under protest, October 30, 1884. The plaintiffs claim that they were entitled, not only to the sum wrongfully taken, but to interest on the same to the time it was applied to their use. They could not be taxed for a greater sum than their proportional and equal 1Reported by R. E. Walker, Esq., of the Concord bar. |