(65 Vt. 541)

(65 Vt. 560)

STATE v. BEDELL. (Supreme Court of Vermont. Orleans. July 20, 1893.)

ARSON-INDICTMENT-INSTRUCTIONS.

1. An indictment for setting fire to a schoolhouse, under R. L. § 4128, making it an offense to set fire to a town house, schoolhouse, or "other building erected for public use," is good, on motion in arrest of judgment, though it fails to charge that the schoolhouse was erected for public use.

2. Where the record does not show that defendant did not testify, the omission of the court to charge that such failure should not be taken against him by the jury cannot be reviewed.

Exceptions from Orleans county court; Thompson, Judge.

William Bedell was indicted for setting fire to a schoolhouse with intent to burn the same. Verdict guilty. Judgment of guilty on verdict. The respondent excepts. Affirmed.

W. W. Miles, State's Atty. E. A. Cook, for respondent.

ROSS, C. J. The respondent waived his exceptions to the charge, but relies upon his motion in arrest of judgment, and his motion for a new trial. The indictment charges the respondent with feloniously setting fire to a schoolhouse, the property of a school district named, with the intent to burn the same. The respondent contends that the indictment is lacking in substance, in that it fails to charge that the schoolhouse was erected for public use. R. L. § 4128, makes it a criminal offense for a person willfully to set "fire to a meeting house, church, court house, town house, college, academy, jail, school house or other building erected for public use." It assumes that the buildings named are erected for public use, but adds, "or other building erected for public use," to include buildings of like public character not named. This section, in this respect, in legal effect, is analogous to R. L. § 4133, construed in State v. Keyser, 56 Vt. 622. The indictment is sufficient to sustain the verdict, judgment, and sentence, when challenged by a motion in arrest.

The motion for a new trial is based upon the alleged failure of the court to charge that the respondent's failure to testify should not be taken against him. There is nothing in the exceptions to show that he did not testify. The motion asserts that he did not. Whether this assertion is true, the court is not informed. The county court overruled the motion. If the motion was not addressed to the discretion of that court,— which we do not decide,-there are no such facts placed upon the record as to show that its action in overruling the motion was erroneous. Judgment: There is in the proceedings, and that respondent take nothing by his exceptions.

no error

GLEASON et al. v. KINNEY'S ADM'R. (Supreme Court of Vermont. Washington. July 20, 1893.)

MORTGAGES-Foreclosure - EVIDENCE-RedempTION.

1. In an action against an administrator to foreclose an accruing mortgage executed by the intestate, entries in the diary of the mortgagee, in the form of regular charges on a book account, are admissible in ascertaining the amount due under the mortgage, even though such entries had never been transferred to the books of account shown to have been kept by the mortgagee.

2. In an action to foreclose a mortgage executed as security for all sums then due or thereafter to be due, the mortgagee is entitled to be allowed, as part of the sum due, a note of the mortgagor made payable to a firm of which the mortgagee is the surviving member, or to bearer, even though recovery on the note itself is barred by the statute of limitations.

3. In such action the mortgagee is entitled to be allowed, as part of the sum due, certain moneys received by the mortgagor from the sale of the machinery of a sawmill, formerly the property of the mortgagor, but at the time of the sale owned by the mortgagee, as purchaser from an execution creditor of the mortgagor.

4. A mortgagor who has executed to his mortgagee a specific and an accruing mortgage cannot redeem the property covered by the accruing mortgage without redeeming the property covered by both mortgages.

Appeal in chancery, Washington county; Taft, Chancellor.

Petition by C. J. Gleason and H. K. Field against the administrator of the estate of Liberty T. Kinney, deceased, to foreclose two mortgages. From a decree dismissing the petition, petitioners appeal. Reversed.

One of the mortgages was specific; the other, accruing. The condition of the accruing mortgage was as follows: "The conditions of this deed are such that if the said Liberty T. Kinney shall well and truly pay or cause to be paid to the said C. J. Gleason and H. K. Field, or either of them, such sum or sums as he now owes said Gleason & Field, or either of them, or may hereafter owe said Gleason & Field, or either of them, and indemnify and save harmless said Gleason & Field, or either of them, from any liability they or either may have assumed or shall hereafter assume, as surety or otherwise for said Kinney, then this deed to be void, and of no effect; otherwise, in full force in law." It appeared that in 1875 the firm of Newhall & Stebbins obtained a judgment against Kinney, deceased, and set off on execution part of a sawmill owned by him. Subsequently, Newhall & Stebbins conveyed the property so set off to the petitioner Gleason. After this conveyance the deceased sold some of the machinery from that part of the mill set off, and received $250 in money for it. The petitioner Gleason sought to include in the accruing mortgage the above $250, and interest from the time when it was received by the deceased.

S. C. Shurtleff, for appellants. Geo. W. Wing, for appellee.

ROSS, C. J. 1. In ascertaining the sum due under the accruing mortgage of February 25, 1876, the master reports that he holds that the orator Gleason's entries upon his diary of 1883 are memoranda, and not accounts, and therefore not admissible in evidence against the administrator. But if, in the opinion of the court, this diary is admissible in evidence, he then finds that the first three items for money paid for the intestate should be allowed. The items are charges for money paid by the orator to other parties for the intestate. In each instance, under the proper date, the orator had entered, "Liberty T. Kinney, Dr. To paid

for you."

The entry is in the form of an original entry of a charge in book account, rather than a memorandum from which such a charge could be formulated. The subject-matter of each was a proper matter for charge on book account. In subject-matter and form, there is no objection to treating these entries as original entries in a book account. The only objection to treating them as such is the fact that they are found entered under the proper dates in a diary, and not on the orator's regular books of account, which it is found that he kept. The original entry may, of necessity, be made on a diary or a book or paper. Such an entry is the foundation of all subsequent entries of the same transaction on the party's journal or ledger. As held in Houghton v. Paine, 29 Vt. 57, a letter may be a sort of original entry. When the charge is challenged the original entry is the best evidence. The leading case in which a memorandum is distinguished from a charge on book account is Lapham v. Kelly, 35 Vt. 195. Judge Peck there says: "On inspection of the book, considering the character and purpose of the entries, and the defendant's testimony, the book, in the opinion of the court, is not such a book, kept in the regular course of business, so as to be admissible as evidence per se, independent of the testimony of the party tending to prove the correctness of the entries of the transaction in dispute, especially as the entries are not entries of a transaction creating an indebtedness, like the sale of goods, the performance of services, regularly charged on the book of accounts of the party, but a memorandum of a payment made upon a note in discharge of a debt." It is observable that the learned judge makes the nature of the transaction and entry the determinative characteristic between a charge in book account and a memorandum. So do all the cases. Jewett v. Winship, 42 Vt. 204; Parris v. Bellows, 52 Vt. 351; Cross v. Bartholomew, 42 Vt. 206; Godding v. Orcutt, 44 Vt. 54; Barber v. Bennett, 58 Vt. 476, 4 Atl. Rep. 231; Id., 62 Vt. 50, 19 Atl. Rep. 978. When the transaction requires and furnishes only a memorandum, its entry on a day book, journal, or ledger, intermingled with proper accounts, does not render it any more admissible in evidence. But when it is of such a nature that it is the v.27A.no.5-14

proper subject of a charge upon book, and the party enters it as such a charge, although on a book other than his regular books of account, such entry is an original entry in book account. Nor is its character changed by his failure to transfer it upon his regular books of account. We think these entries were, in substance and form, proper entries in book account, and as such admissible in evidence, and that these items should be allowed to the orator.

The partnership was

If it still is a partner

2. The master also submits whether the Redfield and Gleason note is secured under the accruing mortgage. The note is, in terms, payable to Redfield and Gleason or bearer. It is a note of long standing. Mr. Redfield has deceased. long since dissolved. ship debt, the orator, as surviving partner, takes the legal title to the note, and is under a legal duty to collect it, and account for the money. It being payable to bearer, and presented by the orator, the legal presumption is that he has the right to present it, as bearer, and that it is due to him either as surviving partner or individually. The condition of this mortgage secures the payment of all indebtedness from Kinney to the orator which existed at the time of the execution of the mortgage, or might exist at any time during its existence. It is urged that this note is stale. But if secured by the mortgage, as we hold, the age of the note does not defeat its recovery under the mortgage, so long as the mortgage is a subsisting security. We think the orator is entitled to have this note allowed, in ascertaining the sum due in equity.

3. Under the agreement between the orator and administrator, the orator is the owner of that portion of the premises covered by the mortgage of February 25, 1876, set off to Newhall & Stebbins, and has been from the time he took the title from the levying creditors before the execution of the mortgage. Hence, when Kinney took any of the property covered by the set-off, he took the property of the orator. No license or sale being shown, he took it as a trespasser. Simply taking it as a trespasser created no indebtedness to the orator which would be secured by the mortgage. But when he received the money for the property taken the orator had the right to waive the tort, and treat the money received as belonging to him. This the orator has done, by asking to be allowed the sums so received. By such election the money received becomes a debt, from the time it was received by Kinney, the payment of which was secured by the terms of the mortgage. By waiving the tort the orator could recover in assumpsit for the money, under the count for money had and received. Burnap v. Partridge, 3 Vt. 144; Scott v. Lance, 21 Vt. 513; Stearns v. Dillingham, 22 Vt. 624; Phelps v. Conant, 30 Vt. 277; Elwell v. Martin, 32 Vt. 220; Kidney v. Persons. 41 Vt. 386. Hence the sums of $100

In

and $125, which the master has found that Kinney received for portions of the property set off, taken and sold by him, are recoverable, as secured by the mortgage. the absence of any finding that Kinney received money, or its equivalent, for any of the other property included in the set-off, taken by him, no such indebtedness arose from him to the orator as would be secured under the mortgages. The orator would be obliged to resort to an action of tort, or waste, which also sounds in tort, for its recovery.

4. The amount due under the mortgage of the farm in Orange is specific, and the defendant can redeem the farm if he so elects, without reference to the accruing mortgage. But the sum secured by that mortgage is also secured by the accruing mortgage. Hence the defendant cannot redeem the property covered by the latter without redeeming the property covered by both mortgages. The pro forma decree of the court of chancery is reversed, and the cause remanded, with a mandate to carry into effect the views expressed.

(18 R. I. 333)

WILLIAMS v. KNIGHT et al. (Supreme Court of Rhode Island. June 28, 1893.)

WILLS-CONSTRUCTION-ADOPTION OF Adults. 1. A bequest to M., "and to her children after her," creates a life estate in M., remainder to the children of M. who were living at the decease of testator, and on the death of M. in testator's lifetime the descendants of any deceased child, who died after the will was made, though before the death of either testator or M., are entitled to the share that such child would have taken on surviving testator; Pub. St. c. 182, § 14, providing that whenever "any ** * person having a devise or bequest shall die before the testator, leaving a lineal descendant, such descendant shall take the estate, *** in the same way and mánner as such devisee or legatee would have done had he survived the testator.'

2. The descendants of a child of M., who died before the making of the will, are not within the statute, and take nothing under the will.

3. In a legacy to a person and his "legal representatives," the words "legal representatives" are merely words of limitation, and not of purchase.

4. In Rhode Island, adults cannot be legally adopted.

Bill by Daniel P. Williams, as executor of the will of Mary Jane Sheldon, deceased, against Robert S. Knight and others, to construe the will of complainant's testatrix.

The thirty-sixth clause of the will of Mary Jane Sheldon, proven before the municipal court of the city of Providence August 12, A. D. 1892, is as follows: "I give and bequeath to my cousin Mary Spicer, wife of George T. Spicer, and to her children after her, the sum of five thousand dollars." The thirty-eighth clause is as follows: "I give and bequeath to my cousins James R. Tyler, Ebenezer C. Tyler, and Albert D. Tyler, sons

of John Tyler, deceased, and to their respective legal representatives, one thousand dollars each."

Robert W. Burbank, for complainant. Elisha C. Mowry and Livingston Scott, for respondents.

MATTESON, C. J. This is a bill for instructions. The complainant, who is the executor of the last will and testament of Mary Jane Sheldon, deceased, desires the instruction of the court respecting the payment of certain legacies bequeathed in the will. The will bears date April 30, 1877. The testatrix died July 13, 1892. By the thirty-sixth clause of the will the testatrix gives and bequeaths to her cousin Mary Spicer, wife of George T. Spicer, and to her children after her, $5,000. Mary Spicer died November 9, 1888, leaving three children surviving her, viz. William A. Spicer, Henry R. Spicer, and Celia S. Peckham, wife of Charles S. Peckham, who claim as such, to be entitled, each, to one-third of the bequest. Besides these children who survived her, Mary Spicer had two daughters, viz. Mary Amelia, who married Robert B. Chambers, and died February 18, 1869, leaving one child, (her son, William S. Chambers, a respondent to the bill,) and Elizabeth A., who married Jenison C. Hall, and died April 13, 1885, leaving two daughters, Mary S. Hall, who died May 4, 1886, and Amelia S. Hall. William S. Chambers and Amelia S. Hall claim to be entitled to share in the bequest, as representing their respective mothers. The question presented for decision is whether the legacy shall be paid to the children of Mary Spicer who survived her, and who were living at the decease of the testatrix, or to the children of Mary Spicer who survived her, and the children of her daughters who died before their mother and before the testatrix. Counsel for William S. Chambers and Amelia S. Hall calls attention to the fact that in several other clauses of the will the testatrix uses the words "children after her," and asks us to infer from such frequent use that these words were used with a merely formal intent, as words of limitation, as were the words “legal representatives," coupled with the names of legatees in several other clauses, because the testatrix deemed them necessary to vest an absolute estate in Mary Spicer, and therefore that Mary Spicer took an absolute estate in the legacy, and, having died before the testatrix, his clients are entitled, as her lineal descendants, to share in the legacy, by virtue of the provision of Pub. St. R. I. c. 182, § 14, as follows: "Whenever any child, grandchild, or other person having a devise or bequest of real or personal estate shall die before the testator, leaving a lineal descendant, such descendant shall take the cstate, real or personal, as devisee or legatee, in the same way and manner as such devisee or legatee would have done in case he

V.

had survived the testator." We see no sufficient reason for making the inference which counsel seeks to ve us draw. On the contrary, we think is a more natural and reasonable construction to give these words the meaning which they ordinarily bear, and to suppose that the testatrix used them in that sense. The word "children," as it is ordinarily used in a will, means immediate descendants; that is, of the first generation. It does not include grandchildren, unless it is necessary to give it that meaning in order to give effect to the will, or unless the testator has clearly shown by other language in his will that he does not use the word in its ordinary sense, but intends it to have a more extended signification. Tillinghast v. De Wolf, 8 R. I. 69, 73; Winsor v. Association, 13 R. I. 149, 150; Guthrie's Appeal, 37 Pa. St. 9, 14; In re Sanders, 4 Paige, 293, 296; Annable Patch, 3 Pick. 360, 363; 3 Amer. & Eng. Enc. Law, p. 231, note 1, and p. 232, note 1; 1 Rop. Leg. 68. In the case of the bequest before us, it is not necessary, in oruer to give effect to the disposition, to construe the word "children" as including grandchildren, nor do we find language in the will to indicate such an intention on the part of the testatrix. Consequently, we are of the opinion that the word "children" is to be regarded as a word of purchase, and not of limitation. This being so, the effect of the language in the bequest, had Mary Spicer survived the testatrix, would have been to create a life interest in her, with a remainder in her children who were living at the decease of the testatrix; the words "after her" denoting the time when the interests in the remainder were to take effect, instead of restricting the interests to such children as should survive the life tenant. As, however, Mary Spicer died before the testatrix, the life estate in her did not take effect, but the legacy passed immediately to the legatees in remainder. But for the statute quoted above, these legatees in remainder would have been only such children of Mary Spicer as survived the testatrix, since the interests of such as had died before the testatrix would have

lapsed. The statute prevented the lapsing of the share of any child of Mary Spicer who would have taken a share of the legacy if such child had survived the testatrix, and vested it in the lineal descendant of such child. It follows, therefore, that as Elizabeth A. Hall would have taken a share of the legacy if she had survived the testatrix, and, as she died leaving a lineal descendant, who is still living, viz. Amelia S. Hall, that the said Amelia is entitled, as her lineal descendant, to the share which she would have taken had she outlived the testatrix. On the other hand, as Mary Amelia Chambers, the mother of William S. Chambers, not only died before the testatrix, but also before the making of the will, so that there was no bequest to her in the will, he is not

within the provision of the statate, and inasmuch as the word "children," as we have already seen, does not include grandchildren, is not entitled, in any view that can be taken of the bequest, to share in the legacy. We therefore decide that William A. Spicer, Henry R. Spicer, Celia S. l'eckham, and Amelia S. Hall are each entitled to onefourth of said legacy of $5,000.

By the thirty-eighth clause of her will the testatrix gave and bequeathed to Ebenezer C. Tyler and his legal representatives $1,000. He died October 5, 1887, intestate, and no administration has ever been granted on his estate. He left surviving him his widow, Abby A. Tyler, and five children, viz. Ebenezer C. Tyler, John M. Tyler, Oliver C. Tyler, Samuel M. Tyler, and Emma E. Tyler. The question concerning which instruction is asked is whether the legacy is to be paid to such administrator of the estate of the intestate as may hereafter be appointed, or to his next of kin, and, if to his next of kin, whether his widow is to be included, or to his lineal descendants. We are of the opinion that the words "legal representatives" are to be construed to be merely words of limitation, and not of purchase, and, therefore, that the legacy is not to be paid to the administrator of Ebenezer C. Tyler, if one should be appointed, but that as he died before the testatrix the provision of the statute quoted above applies, and that the legacy should be paid in equal shares to his five children named above.

We are of the opinion that the attempted adoption, by John Loveland and Sarah Loveland, of Georgie L. Langworthy, on December 1, 1873, who was at that date of full age, had no legal effect, since probate courts in this state have no jurisdiction over a proceeding for the adoption of persons of full age, (Moore, Petitioner, 14 R. I. 38,) and, therefore, that such attempted adoption did not in any way affect the right of the said Georgie L. Langworthy to share with the other lineal descendants of George W. Sheldon in the residuary legacy to him and others. The situation of the case is not such as to enable us to give the instructions requested in relation to the bequests contained in the fourth and eighth clauses of the will.

(18 R. I. 297)

PHETTEPLACE v. BUCKLIN. (Supreme Court of Rhode Island. June 12, 1893.)

VOLUNTARY PAYMENT-MISTAKE OF FACT.

1. Plaintiff, as surety of an executor, having become liable to legatees because of a misappropriation by the executor of funds of the estate, drew his check in favor of a legatee who had died without issue before testator, but of which fact both plaintiff and the executor were ignorant. The executor, in whose hands plaintiff had put the check for delivery to the legatee, delivered it to defendant, who

was the personal representative of the deceased legatee. Held, that plaintiff could recover the amount of such check as money paid under a mistake of fact, though it had been distributed by defendant among those entitled to the estate of the deceased legatee, unless defendant shows that it would be inequitable to allow such recovery.

2. Plaintiff was not restricted to his remedy against the bank on which the check was drawn for having illegally paid it, but he had the right to ratify the payment, and sue defendant.

Assumpsit by James S. Phetteplace against Frederick A. Bucklin. There was a judgment in favor of defendant, and plaintiff moves for a new trial. Granted.

Elisha C. Mowry and Livingston Scott, for plaintiff. Joseph C. Ely and Herbert

Almy, for defendant.

MATTESON, C. J. This is an action of assumpsit to recover money paid to the defendant in ignorance of facts. The case was heard by the court of common pleas, without a jury, and judgment was rendered for the defendant for his costs. The plaintiff petitions for a new trial, and alleges that the judgment was against the evidence. The facts, which are undisputed, as shown by the report of the testimony, are as follows: Jane M. Woodward, late of Providence, died leaving a last will and testament in which William G. R. Mowry, also late of Providence, deceased, was named as executor, and who qualified as such by giving bond with Nathaniel S. Mowry and the plaintiff as sureties. The executor was not related to any of the persons interested under the will, nor does it appear that he had ever known Catherine C. Flagg, who was named in the will as a legatee. The executor, becoming involved financially, misapplied the funds of the estate of the testatrix, and became, as did also Nathaniel S. Mowry, the plaintiff's cosurety, utterly insolvent. The plaintiff, knowing the condition of the executor and his cosurety, and recognizing the liability which he had incurred as surety, requested his principal to furnish him with a list of the legatees to whom he was liable, and on receiving it on or about August 1, 1891, made his checks payable to the legatees named in the will for the amounts of their respective legacies, and gave them to the executor for delivery to the respective legatees. One of these checks was payable to Catherine C. Flagg, who, though named in the will as a legatee, had died without leaving a lineal descendant, in St. Louis, Mo., August 29, 1881, several years prior to the death of the testatrix. The plaintiff had no knowledge of her death, but supposed, and was led to suppose by the list furnished him by the executor, that she was then living; nor is there any evidence that the executor knew, at the time of furnishing the list to the plaintiff and the delivery of the check, of her decease. The check was delivered by the executor to the

defendant and by him indorsed, "Estate of Catherine C. Flagg, Frederick A. Bucklin, Administrator," and deposited in bank, and paid by the bank on which it was drawn through the clearing house, and charged in the plaintiff's account. Two months or so after the delivery of the check to the defendant, the plaintiff first learned of the decease of Catherine C. Flagg, and that she died prior to the testatrix, when called on by the attorney of the residuary legatees to pay them the amount of the legacy given to her, but which had lapsed by her death without a lineal descendant prior to the death of the testatrix. In the mean time the defendant, on or about September 2, 1891, had distributed the money received on the check to the legatees of Catherine C. Flagg, of whose estate he was administrator. One of these legatees resided in Providence, and the other in Melbourne, Australia. In November following, a written demand for the return of the money was made by the executor on the defendant. As the defendant did not comply with this demand, the plaintiff brought this suit.

As we have seen, the case does not show that either the plaintiff or the executor knew, or had reason to know, at the time of the delivery of the check to the defendant, that Catherine C. Flagg had died before the testatrix, leaving no lineal descendant, so that the legacy to her had lapsed. The check, therefore, on which the defendant obtained the money sued for, was delivered in ignorance of facts by reason of which neither the executor nor the plaintiff as his surety was under any liability to the defendant. The money obtained by the defendant on the check was money for which there was no consideration, and which the defendant in justice and good conscience was not entitled to receive. The principle is well settled that, if a person pays money which he was not liable to pay in ignorance of the facts, he may recover the money so paid. Garland v. Bank, 9 Mass. 408; Mayer v. Mayor, etc., 63 N. Y. 455; Bank v. Eltinge, 40 N. Y. 391; and see note to Marriot v. Hampton, 2 Smith, Lead. Cas. 400 et seq. It is, however, subject to the qualification that, if it is inequitable to allow a recovery, the money cannot be recovered, but the person making the payment must bear the loss. Mayer v. Mayor, etc., 63 N. Y. 455. The defendant seeks to bring himself within this qualification, and contends that having paid the money received from the plaintiff to the legatees under the will of Catherine C. Flagg, one of whom resides in Australia, and is therefore not readily accessible, before the plaintiff or the executor demanded repayment, his position is so changed that it would be inequitable to allow the plaintiff to recover. We do not think it is enough to relieve the defendant from liability that he has paid the money to others, even though such payment was made before a repayment was de