TRIAL-ARGUMENT - COMMENTING ON FACT THAT ANSWER HAD BEEN AMENDED -INSTRUCTION.

At the trial of a suit, the plaintiff's counsel in his argument called attention to the fact that defendant's counsel had amended his answer during the trial, and commented thereon. Held, that the defendant was entitled to the instruction to the jury, by the court, that the fact that the defendant amended his pleadings during the trial, setting up an additional defense, was not a subject of comment, and that the fact of such amendment should not affect the judg ment of the jury upon the facts of the case.1

The facts appear in the opinion.

W. A. Gile, for defendant.

T. G. Kent, for plaintiff.

DEVENS, J. The case at bar is an action against the executrix of the late sheriff of Middlesex for the neglect and default of one of his deputies. The declaration alleges that a writ was placed in the hands of the deputy for service, which was in favor of the plaintiff and against one Travis, on which he was directed to attach property or take a sufficient bond; that Travis had in his possession enough personal property subject to attachment to have secured the claim of the plaintiff; and that, by the neglect of the officer to make a substantial attachment, the plaintiff lost his debt. As we are of opinion that the exception which relates to the conduct of the case before the jury must be sustained, and thus there must be a new trial, we have not deemed it desirable to consider the other exceptions, as it is not probable that they will be again presented in the same form in which they are now offered. The defendant's original answer denied the allegations of the plaintiff's declaration. Before the trial she filed an additional answer, setting up an attachment under a special order issued while the action was pending; alleging that all the property of Travis which could have been attached on the original writ had been attached thereon, and retained until such attachment was dissolved by operation of law. At the trial the defendant sought to prove that the instructions given to the deputy, which were indorsed on the writ, were superseded and waived. Being met by the objection that this defense. was not open under the answer as it then stood, she was permitted to file an amendment thereto, setting forth this allegation. The instruc tions to the jury required them to find for the defendant, if this allegation was proved; and the verdict for the plaintiff necessarily disposes of this contention. The correctness of this instruction is not questioned. The plaintiff's counsel, in closing, argued that the filing of this amendment during the trial showed that the defense so pleaded was a "put up" defense, not relied on when the original answer was filed; that its filing

1 For a discussion of the question of misconduct of counsel in argument to jury, and herein of what things may be spoken of in argument and what may not, see Anderson v. State, (Ind.) 4 N. E. Rep. 63, and note, 68; Shular v. State, (Ind.) 4 N. E. Rep. 870, and note, 880; and Boyle v. State, (Ind.) 5 N. E. Rep. 203, and note, 223-225.

during the trial should "be taken into account; that not one word was said about all this in the original answer;" that the fact that this defense was not set up "until the trial was partly through was to be considered," with other arguments of a similar nature. While this argument was being made, the defendant's counsel privately called the attention of the presiding judge thereto, who declined to interrupt the plaintiff's counsel. At the close of the argument, the defendant formally called the attention of the judge thereto, and requested an instruction, which was refused, that the fact that the defendant amended her pleadings during the trial, setting up an additional or more specific defense, was not a subject of comment, and that "the fact of such amendment should not influence or affect their judgment upon the facts of the case.' To this instruction the defendant was entitled in substance. The answer is the statement of his case by a party. It is not to be deemed evidence on the trial, but consists of "allegations only whereby the party making them is bound." Pub. St. c. 167, § 75.

The plaintiff concedes that the contents of an answer are not the subject of comment; but contends that the fact of its filing may be. This is to draw too nice a distinction. The fact of its filing was perfectly unimportant in the case at bar, except as connected with the contents of the amended answer. In Phillips v. Smith, 110 Mass. 61, the original declaration was read and commented on as evidence contradictory of the plaintiff's testimony, and of the additional declaration on which the plaintiff finally sought to recover; and it was held that this was irregular. The case at bar does not differ in substance. The plaintiff here, by means of the answer first filed and that subsequently relied on, endeavored to show that the amended answer was a "put up" defense. The force of his argument depended upon a comparison of the evidence afforded by the two answers.

It would be a serious embarrassment to that liberal amendment of pleadings contemplated by our statutes, if a party availing himself of the leave in this respect granted by the court could only do so by subjecting himself to the imputation that his new form of statement, by its difference from that previously made, showed that he presented a simulated case. When the plaintiff objected to the evidence offered by the defendant, it was the right of the latter to apply to the court for leave to amend her answer, without invoking a ruling upon the question thus raised, and without subjecting herself to any imputation by reason that she had not before set forth the allegations made in the amendment. The original statement of a party's case is often hurriedly prepared, with imperfect information of the facts, and sometimes under misapprehension of the law. New facts are revealed at the trial, and new views of the law applicable to them are suggested. It would be unjust, if, in a closing argument, the counsel could be allowed to compare the answer originally made with that finally relied on, without an investigation of all the circumstances under which the original answer was made. Yet such an investigation would be obviously impossible. To permit counsel thus to comment after the evidence has been concluded, and when no oppor

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tunity for explanation remains, or indeed could ever be given, would often cause an entirely different effect to be attributed to the legal statements of a defense from that which they should properly bear.

The plaintiff urges that the defendant's counsel had no right to remain silent during his address to the jury, and that it was his duty then to have interposed. To have interrupted the plaintiff's counsel while making his argument was only to provoke altercation, especially after the defendant's counsel had satisfied himself that he would not be sustained by the court. To the refusal of the court then to interrupt the counsel the defendant has alleged no exception, and, as the matter was not then brought to the attention of the opposing counsel, perhaps could not have so done. But when, at the close of the argument, the matter was brought to the attention of the court in the presence of the counsel, the defendant was entitled, in substance, to the request made, unless, at least, the plaintiff's counsel then formally withdrew the comments made by comparison of the two answers, and disavowed any intention to ask a verdict by reason of them. Exceptions sustained.

(140 Mass. 562)

(Bristol, ss.)

BORDEN, Adm'r, v. JENKS and others.

Filed January 11, 1886.

1. WILL-RIGHTS OF WIDOW - ELECTION TO TAKE UNDER WILL IN LIEU OF DOWER-PREFERENCE--ABATEMENT OF LEGACY.

A testator made a will containing the following provisions: "I give and bequeath unto my wife, Amy Jenks, my new dwelling-house, and the garden lot belonging to the same, for and during her life; * * * also to my said wife, absolutely, all my household furniture and in-door movables, and the sum of two thousand dollars. Second. I give and bequeath unto my son George A. Jenks my homestead farm, and also my new dwelling-house and garden lot, after the decease of my said wife, to him and his heirs, forever. Certain personal property was also given to the said George, and the residue, in legacies, to other children and grandchildren. The widow accepted the provisions of the will in lieu of dower and other interests in the estate to which she would have been entitled if the testator had died intestate. The estate was not sufficient to pay the debts and all the legacies in full, but was more than sufficient to pay the debts and the legacy to the wife in full. Held, that the wife, by the relinquishment of the share in the personal property of the husband, of which she could not be deprived by will, was entitled to receive the legacy given in consideration thereof, in preference to those who were pure beneficiaries. Also held, that the legacy of personal chattels specifically bequeathed to George A. Jenks must abate, and, if necessary, the specific devise of the land, in order to satisfy the legacy to the widow.

2. SAME-WIDOW CONSIDERED A PURCHASER FOR VALUE.

A widow who accepts the provisions of a will of her husband in lieu of dower is a purchaser for value, in accepting the provisions of the will, and is not treated as a gratuitous object of the testator's bounty, but as a quasi creditor.

3. SAME-WIDow Provided FOR BY JOINTURE OR SETTLEMEnt, not PrefeRRED TO OTHER LEGATEES.

Where a widow has no dower interest, as where she is provided for by a jointure or other settlement in lieu of dower, she obtains no precedence, but shares equally with other pecuniary legatees.

Bill in equity, by the administrator with the will annexed of the estate of Charles Jenks, alleging that the testator died on the seventeenth

of February, 1882, leaving a will dated October 25, 1876, which was duly admitted to probate; that on May 5, 1882, letters testamentary issued to the plaintiff,-George A. Jenks, who was named in the will as executor, having declined the appointment; that the will contained the following provisions:

"First. I give and bequeath unto my wife, Amy Jenks, my new dwellinghouse, and the garden lot belonging to the same, for and during her life; also her necessary fire wood, and the keeping of one cow, to be furnished to her from my homestead farm, by my executor hereinafter named. I also give to my said wife, absolutely, all my household furniture and in-door movables, and the sum of two thousand dollars. Second. I give and bequeath unto my son George A. Jenks my homestead farm, and also my new dwellinghouse and garden lot, after the decease of my said wife, to him and his heirs, forever. I also give to the said George all my farming tools, live-stock, carriages, wagons, carts, harnesses, and the sum of three thousand dollars in money."

The bill further alleged that the will also gave legacies to the other children and a grandchild of the testator, and the residue of his estate to his four children equally; that the widow accepted the provisions of the will in lieu of dower and other interests in the estate to which she would have been entitled if the testator had died intestate; that the estate is not sufficient to pay the debts and all the legacies in full, but is more than sufficient to pay the debts and the legacy to the wife in full; that the widow claims that the legacy given to her by the will must be paid by the plaintiff out of the estate, without regard to the other legacies given by the will; that George A. Jenks claims that, inasmuch as the estate is not sufficient to pay all the legacies in full, Amy Jenks was not entitled to the full amount of the legacy given to her, and objects to the plaintiff paying her said legacy, and avers that such payment, if made, would impair the amount of his and the defendants' legacies. The plaintiff asked that the several defendants might be ordered to interplead, and state their several claims upon the plaintiff in the execution of his trust, so that the court might instruct the plaintiff whether the claim of the widow, to the full amount of her legacy, should be allowed and paid her by the plaintiff out of the estate, or what proportion should be paid to her under the will; and for other relief. Hearing before FIELD, J., who found that the land devised and the personal chattels bequeathed to George A. Jenks by the will were not liable to abate or be taken for the payment of the pecuniary legacy of $2,000 given to the widow by the will; and from the decree Amy Jenks appealed.

E. H. Bennett, for Amy Jenks.

T. M. Stetson, for George A. Jenks.

DEVENS, J. The provision made for the widow by the testator is not in terms declared to be in lieu of dower; but by the statute of Massachusetts, when provision is made for a widow by the will of a deceased husband, she is not entitled to dower, unless it plainly appears thereby that such was the intention. Under Pub. St. c. 127, §§ 18, 20, her

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failure to waive the provisions of the will operated as an acceptance of them, and placed her in the same position as if such provisions had been expressly declared to be in lieu of dower. Towle v. Swasey, 106 Mass. 100. The widow is a purchaser for value, in accepting the provisions of the will, and is not treated as a gratuitous object of the testator's bounty. By a relinquishment of her dower, the estate acquires a Valuable right of property. Whether the provisions be more or less, so far as the testator, the widow, and all pure beneficiaries under the will are concerned, it is the right of the testator to affix what consideration he pleases for the relinquishment of dower, and for the widow to accept or reject it. Whether, as against creditors, a provision in lieu of dower far exceeding its value could be held good need not now be discussed. The right of the widow to a priority in the payment of the legacy which she takes in consideration of relinquishment of dower is so well established that it hardly requires the citation of authorities. Burridge v. Bradyl, 1 P. Wms. 127; Blower v. Morret, 2 Ves. Sr. 420; Norcott v. Gordon, 14 Sim. 258; Williamson v. Williamson, 6 Paige, 298, 304; Pollard v. Pollard, 1 Allen, 490; Towle v. Swasey, ubi supra; Farnum v. Bascom, 122 Mass. 282, 289. It seems to be equally established that where a widow has no dower interest, as where she is provided for by a jointure or other settlement in lieu thereof, she obtains no precedence, but shares equally with other pecuniary legatees. Roper v. Roper, 3 Ch. Div. 714; Acey v. Simpson, 5 Beav. 35. It would follow from these principles that where a wife is entitled, as she is under the laws of Massachusetts, to a share in the personal property of the husband, of which she cannot be deprived by will, the relinquishment of such right would entitle her to receive the legacy given in consideration thereof, in preference to those who were pure beneficiaries. Farnum v. Bascom, 122 Mass. 289. The position which she occupies in regard to such a legacy may be different, so far as creditors are concerned, as her right is independent of theirs in the one case and subject thereto in the other.

It is not disputed, in the case at bar, that the widow is entitled to payment of her pecuniary legacy from the personal property which has been generally bequeathed, to the exclusion of the other legatees; but it is contended that neither the personal chattels specifically bequeathed to George A. Jenks, nor the land devised to him, should such personal chattels prove insufficient, can be applied to the payment of the legacy to the widow. Whether one devise or bequest is to be postponed in payment to another is a question of intention. The provision which a testator makes for his widow may be in any form he chooses, as the wife may or may not accept, as she pleases. It may be charged solely on personal or real estate distinctly specified; it may be made subject to or preferred above other legacies; or that which is given may be charged with payments or liabilities to others. When a specific thing is given, there is certainly a difference from a general donation, which may be satisfied from many sources. If the thing exists, the donee receives it; if not, no other portion of the testator's property is charged with the payment of its value. The contention of George A. Jenks is therefore that, V.5N.E.no.4-40

MASS.DEC.1-6 N.E.-37