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made out, might recover exemplary damages, and re- tortious acts committed through malice or other cirfused to charge, as requested by defendant's counsel, cumstances of aggravation.” Rapalje & Lawrence. that the plaintiff's right of action, if she had one at all, “Damages given not merely as pecuniary compensawas limited to her actual damages, and that she was tion for the loss actually sustained by the plaintiff, but not entitled to exemplary damages.

likewise as a kind of punishment to the defendant, The defendant excepted to charge as made, and to with the view of preventing similar wrongs in future." the refusal to charge as requested.

Broom's Com. Law, 855.
The verdict of the jury in favor of the plaintiff ex- “Damages increasing cempensation for wrongs
ceeded the amount of the actual damages as prored. done with bad motives." 1 Suth. Dam. 716.
Franklin v. Schermerhorn, 8 Hun, 112.

“Damages where fraud, malice or oppression inter-
According to the evidence the only connection of the venes.” 1 Sedg. Dam. (7th ed.) 53.
defendant with the case was that he owned the prem- “For torts, under circumstances of great aggrava-
ises where the liquor alleged to have caused the fintion, the jury, in addition to such actual damages as
toxication of plaintiff's husband was sold, and that he they may find the injured party entitled to,
let them to be used as a hotel, knowing that intoxicat- may further allow, for an example to others, and a
ing liquors were to be sold therein. There was no proof punishment to the wrongdoer, exemplary or punitive
connecting the defendant with any aggravating cir- damages." Field Law Dam, 28.
cumstances. There was evidence tending to show that “If the defendant in committing the wrong com-
the barkeeper of the tenant sold to the husband of the plained of acted recklessly or wilfully and maliciously,
plaintiff three drinks of whiskey at short intervals; with a design to oppress and injure the plaintiff, the
but it did not appear that he was at all intoxicated un- jury, in fixing the damages, may disregard the rule of
til after he had swallowed the last of these drinks.

compensation, and beyond that may, as a punishment The exceptions therefore present the question whether to the defendant, and as a protection to society against in a case brought under the Civil Damage Act against a violation of personal rights and social order, award the owner of the premises, the plaintiff may, in the such additional damages as in their discretion discretion of the jury, receive exemplary damages they may deem proper." Voltz v. Blackmar, 64 N. Y. without proof of aggravating circumstances with

440, 444. which the owner is connected.

“ Damages by way of compensation for malicious inThe statute provides that "every husband, wife, juries.Bixby v. Dunlap, 56 N. H. 456, 465. child, parent, guardian, employee or other person who “In actions of trespass and all actions on the case for shall be injured in person or property or means of sup- torts, a jury may inflict what are called exemplary, port by any intoxicated person, or in consequence of punitive or vindictive damages, upon a defendant, the intoxication, habitual or otherwise, of any person, having in view the enormity of his offense rather than shall have a right of action in his or her name against the measure of compensation to the plaintiff.Day any person or persons who shall, by selling or giving V. Woodworth, 13 How. 371. away intoxicating liquors, have caused the intoxica- See also Huckle v. Money, 2 Wils, 205; King y. Root, tion in whole or in part of such person or persons, and 4 Wend. 113; Burr v. Burr, 7 Hill, 207. any person or persons owning or renting, or permitting From these definitions it is apparent that exemplary the occupation of any building or premises, and having damages at common law imply malice, bad motives or knowledge that intoxicating liquors are to be sold evil intent on the part of the person against whom they therein, shall be liable, severally or jointly, with the are awarded. They are allowed not to compeusate the person or persons selling or giving intoxicating liquors one who suffers the wrong, but to punish the one who aforesaid, for all damages sustained, and for exemplary iuflicts the wrong, on account of his evil design, and as damages. Laws of 1873, ch. 646, § 1. .

an example to others. What did the Legislature mean when it imposed this If the Legislature in enacting the statute in quesliability: “For all damages sustained, and for exem- tion, instead of using the words "exemplary damplary damages ?” Did it mean to commit to the arbi- ages," had used the common-law definition of those trary discretion of an irresponsible jury the power of words, they would have expressed precisely what the awarding exemplary damages without evidence or law statute means now. Davis V. Standish, 26 Hun, 608, to guide them? Or did it mean that the damages sus- 615. When thus construed it does not mean that the tained, when proved according to the common law, jury may award exemplary damages in any case, but should be recovered, and also exemplary damages, only when the defendant has acted from bad motives. when proved in ke mannner? In other words, did If for instance, in an action against the one who sold it mean to create a new cause of action, leaving the the liquor that caused intoxication from which actual damages to be measured by the principles of the com- damnges were sustained, it appeared that he sold in mon law? Or to create not only a new cause of action, violation of law,or to a person whom he knew to be far but also a new measure of damages?

gone in the habit of intemperance, or who was already All statutespare to be construed with reference to obviously under the influence of liquor, or who habitthe principles of the common law in force at the time ually squandered in dissipation the wages with which of their passage, and all words having a well known he should support his family, the jury might well inand definite meaning at common law are presumed to fer that he acted from bad motives, and award exembe used in the same senge when they appear in a stat- plary damages. Also in an action against the owner ute. Dwar. Stat., 564-5; Sedg. Const. Stat. & Com. of the premises if it appeared that he leased them to a Law, 221; United States v. Jones, 3 Wash. C. C. R. tenant, kijowing that he kept a disorderly place, or 209.

sold without a license, or to minors, or habitual drunkThe words “exemplary damages” are well known to ards, there would be a basis on which the jury might the common law, and are thus defined by common law allow exemplary damages against him. writers, editors, and judges :

But in this case there is no evidence from which the "Damages allowed as a punishment for torts com- jury could infer that the defendant acted from bad mitted with fraud, actual malice or deliberate violence motives. He leased his premises for a lawful purpose. or oppression.” Bouvier.

Jackson v. Brookins, 5 Hun, 530, 535. His tenant had " Damages given by way of punishment; or in com. a license, granted under the laws of the State, and so mon parlance, 'smart money.' Burrill.

far as appears kept an orderly and respectable hotel. Damages on an unsparing scale, given in respect of No aggravating circumstance was shown with which

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the defendant was directly or indirectly connected. ferred, and in such a case the Legislature might well If the sale of three glasses of whiskey to the same per- have intended to allow exemplary damages as a pun. son within a few minutes would authorize an award ishment for the violation of the statute, so that Schneiof exemplary damages in a case against a tenant, it der v. Hosier, supra, is not inconsistent with the other would not in a case against the landlord without cases oited. further proof. The person against whom exemplary No other case to which our attention has been called damages are allowed must be conuected with and in has sanctioned the recovery of exemplary damages some way responsible for the aggravating circum- without proof of aggravating circumstances. stances tbat authorize the award. As said by the court We think that the charge as given, and that the rein Davis v. Standish, supra, “the statute has not said fusal to charge as requested, were erroneous, and that in what cases punitive damages may be given, and we the judgment and order appealed from should be remust therefore look to the common law.” And as al- versed, and new trial granted, with oosts to abide ready appears, such damages are allowed at common event. law only to punish a willful wrongdoer.

Judgment and order reversed, and a new trial In Franklin v. Schermerhorn, 8 Hun, 112, it appeared granted, with costs to abide the event. that the plaintiff's husband was injured, and lost a Hardin, P. J., and Follett, J., concur. sum of money in consequence of the intoxication, and it was held that the seller was liable only for the actual damages, and that exemplary damages should be TOWN-LIABILITY FOR ACT OF BOARD OF given only when there are circumstances of abuse or

HEALTA. aggravation proved on the part of the vendor of the liquor.

MASSACHUSETTS SUPREME JUDICIAL COURT. In Neu v. McKechnie, 95 N. Y. 632, the Court of Ap

SPRING V. INHABITANTS OF HYDE PARK. peals held that when the defendant sold the liquor causing the intoxication without a license, it was proper

A board of health took possession of plaintiff's house and to submit the question of exemplary damages to the

subjected it to hospital regulations until a patient therein jury. The decision is placed expressly upon the

recovered from the small pox. In an action against the ground that there was evidence upon which exem

town to recover damages therefor, held, that the board plary damages might be awarded.

acted without authority, and that defendant was not

liable. Under similar statutes the courts of Michigan, Nebraska and Illinois require circumstances of abuse or

"HIS was an action to recover damages alleged to aggravation to be proved before exemplary damages have been sustained by the plaintiff in conseare allowed even against the seller.

quence of her house in Hyde Park being seized, used, In Kreiter v. Nichols, 28 Mich. 496–9, the court held and controlled by the board of health of the town, and that exemplary damages should not be awarded unless subjected to hospital regulations for six weeks and the act of giving or selling the intoxicating drinks was one day. The following facts appeared: The plaintiff willful, wanton, reckless or otherwise deserving of was the owner and occupant of a house in the defendpunishment beyond what the requirement of mere ant town, a tenant occupying a part of the house. The compensation would impose.

small-pox broke out in the tenant's family, and one of In Ganssly v. Perkins, 30 Mich. 492-5, the court said: the patients being too sick to be removed, the board "The actual damages should be as nearly coinmensu- of health claiming the right so to do, under its staturate with the actual injuries as the nature of the tory powers, took possession of the house and subcase will permit; and exemplary damages should be jected it to hospital regulations until the recovery of given in those cases, and only in those cases, where the the patient. The declaration was originally one of plaintiff has some personal right to complain of a wan- tort, but was amended by adding a count in conton and wilıful wrong, which the wrongdoer, when he tract. committed it, must be regarded as having committed Seth J. Thomas and Edmund Davis, for plaintiff. against the plaintiff herself, in spite of the injury he

J. E. Cotles, for defendant. must have known she was likely to suffer by it.'

In Roose v. Perkins, 9 Neb. 304, 315, it does not ap- DEVENS, J. The overseers of the poor of the cities pear whether there was any proof of aggravating cir- and towns have always been held as public officers, cumstances or not, but the refusal of the trial court, to performing the public duties with which they are instruct the jury that exemplary damages could not charged upon their own responsibility. As they are be recovered, was held error.

engaged in performing the duty wbich the statutes In Meidel v. Anthis, 71 Ill. 241, 243, it was held that had imposed upon the towns of relieving poor persons exemplary damages could be allowed, not by way of falling into distress within their limits, they may punishment, but as an example, and that aggravating therefore incur expenses or make contracts with lawcircumstances must be shown.

ful persons for which the towns would be liable. 13 In Bates v. Davis, 76 Ill. 222, the judgment was re- Metc. 19; 106 Mass. 262. The statutes creating or auversed solely becauso the trial court had allowed the thorizing the creating of boards of health have in a jury to award exemplary damages.

similar way provided for boards, which in the per In Hackett v. Smelsley, 77 Ill. 109, exemplary dam- formance of the important duties imposed upon them ages were allowed, but the evidence tended to show act as public officers but on behalf of the town by that the defendants sold to a habitual drunkard. whom they are chosen or appointed. P. S., cb. 80.

The Supreme Court of Ohio, under a statute creat- While in terms it is not provided by whom the ex. ing a right of action “against persons who shall by penses they are authorized to incur are to be paid, or selling intoxicating liquors, contrary to this act, have the contracts they are authorized to make are to be caused the intoxication, etc.,

for all dam- performed, it is necessarily implied that when ex. ages actually sustained, as well as exemplary dam- penses are incurred or contracts are made within the ages," held that the jury might assess exemplary dam- scope of their authority, the town is made liable ages without proof of actual malice or other special therefor. 2 Cush. 52; 98 Mass. 431. circumstances of aggravation.

Schneider y. Ilosier, 21 Careful provision has also been made for the ultiOhio, 98, decided under the act of May 1, 1854; S. & C. mate liability for the expenditures which may be 1. 432.

made by any town in the care of infected persons for Where the sale is unlawful bad motives are to be in- the protection of the public. P. S., ch. 80, $ 400. We

do not therefore doubt that for expenses lawfully in- board may lawfully impose in regard to the manage-
curred, or absolutely lawfully made by the board of ment of property and the couduct of persons in rela-
health of the defendant town in the performance of tion thereto, in protection of the public health, may
its duties the town would be held responsible, but it often seriously affect its value, the right to impose
must appear that what the board did was within the such regulations as to its management has been held
Bcope of its lawful authority. While acting in behalf to be quite distinct from that of appropriating private
of the town it is not an agent of the town in any sense property when any emergency requires it for public
which should make the town responsible for its acts use; the one rests on the police power of the State,
when it exceeds its lawful authority, as a principal which attends to all matters concerning its internal
may often be held liable under such circumstances for regulation, the other on the right of eminent domain.
the agent whom he appoints. As a general rule a town The one prescribes the mode in which each shall enjoy
is not liable for the unauthorized acts of the public his own property in order that others may enjoy
officers whom it appoints. The plaintiff's amended theirs and that their health and welfare may be se-
declaration, which is the only one before us, and is cured, and the owner who is subject to such regula-
termed one in contract, alleges that the board of health tions has of right no title to any sum if the value of the
of the defendant town, pursuant to its lawful powers, property is thereby diminished; it is a necessary bur-
acting for and on behalf of the town, took possession den which he bears as a member of society in common
of the plaintiff's house and furniture therein as and with others similarily situated; by the other, wbere
for a hospital, that it occupied, controlled, and used property is appropriated to public use, the owner is
his bouse as a hospital for the term of six weeks and entitled to proper compensation therefor. While the
one day. It is not alleged that the board of health impressment of property is provided for it is accom-
occupied by any leave of the plaintiff, or made any ex- panied by all appropriate safeguards, and provi-
press or implied promise to pay for the same and the sion is made for a just compensation to be paid by the
taking would be a trespass unless it were done under town where the person or the property or both are im-
some authority of law. It must be deemed therefore pressed. It is done by virtue of warrants, regularly
that the plaintiff bases her action upon the ground that issued, served by executive officers, who while they
what the board of health did was lawful, and that a are to act under the direction of the board are still to
promise to pay for the same will be implied against obey the precepts contained in their warrants, that
the town. We are thus brought to the inquiry whether property is seized and taken possession of for an im-
the board of health has authority, where a persou in- portant public purpose, and just compensation is pro-
fected with a contagious disease, too sick to be re- vided for. Independently of these provisions there is
moved without imminent danger, is found in any no authority in the board of health to take possession
house, to take possession of the premises and furni- of, or impress any place as a hospital. If therefore the
ture and use the same for a hospital, thus excluding board of health took possession of the plaintiff's house
the owner or occupant from his otherwise lawful and furniture and occupied, controlled, and used said
premises. Publio Stat., ch. 26, $$ 16, 17; ch 80, SS house as a hospital, it had no authority so to do. The
40, 41, providing for the safety of the inhabitants defendant town is not respousible for their actions.
where a person is infected with a sickness, dangerous Demurrer sustained.
to public health, contemplate that a contract will
be made for the care of a person too sick to be removed 103, it was held that the defendant was not liable or

NOTE.-In Bamber v. City of Rochester, 62 How. Pr. as by furnishing him with nurses, necessaries, attend responsible for the acts of its board of health in issuance, etc., and further that the place wbere he is, ing an order for the destruction of a quantity of rags with its immediate vicinity, and the persons there

which were infectious and dangerous to the publio found, will be subjected to the regulations of the board

health. (See 29 Eng. Rep. 14.)
of health, but they give po authority to take posses-
sion of the property of any one to the exclusion of the
person who is entitled to such lawful possession. It is
however rather upon Gen. Stats., ch. 26, $ 44; P.S., ch.

WILL-LIFE ESTATE-POWER OF SALE,
80, $ 75, that the plaintiff relies, which provide that
where a disease dangerous to public health breaks out,
the board of health may cause any sick and in-

NEW JERSEY COURT OF CHANCERY, FEB., 1884. fected person to be removed thereto, unless his condition will not admit of his removal without danger to

SNELL'S EXECUTORS V. SNELL.* his health, in which case the house or place where he

A testator gave a life estate in certain lands to his wife, with remains shall be considered as a hospital, and all per- remainder in fee to his executors, with directions that bons residing, or in any way connected with the same, after her death they should convert the property into shall be subjected to the regulations of the board of cash and divide the proceeds among his children when the health.

youngest should have attained twenty-five years of age. It by no means follows that because a place may be Held, that the executors could, with the widow's consent, subject to the regulations of the board of health

sell the lands in question in her life-time. it may be seized and taken possession of. It is con

ILL for construction of will, etc. On final hearsidered a hospital for this purpose in order that the

ing on pleadings and proofs. Opinion states the dauger to public health may be averted.

The case of Lynde v. Rockland, 66 Me. 314, is strik-
ingly similar to that at bar.

E. W. Strong, for complainants.
Had the power of seizing and appropriating prop-

RUNYON, Chancellor. This suit is brought to oberty been conferred on the board of health acting by

tain a construction of the will of Thoma Snell, deits own authority, it can hardly be doubted but what it

ceased, late of Middlesex county, who died September would have been given in explicit terms. Circumstances might arise where it would be necessary for 1, 1874. By the will (which was made in August, 1874),

the testator, after directing payment of all his debts the board of health to take possession of property and

and liabilities, gives to his wife for her life, his farm impress persons also in taking care of the sick aud in- and household furniture, live stock and farm imple. fected, and protecting the community. For such a

ments, and every thing movable or immovable in and contingency the statutes have made ample provisions.

*S. C., 38 N. J. Eq. 119. While the regulations and restrictions which the

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about the farm then belonging to him. To his execu- to be divided and paid over in shares, and in the tors he gives, in trust, $15,000, which they are to invest meantime to be invested for accumulation. and keep invested during her life, and pay her the in- Where an executor is directed by the will or bound come thereof not exceeding $1,000 per amnum. He by law to see to the application of the proceeds of the then directs that after her death the farm and the sale, and no direction is given as to the persou by $15,000 shall “revert” to his executors and “be dis- whom sale is to be made, or if the proceeds of sale in posed of by them in the same manner as the rest and the disposition are mixed up and blended with the residue of his estate thereinafter mentioned." He personalty--which it is the duty of the executor to next gives to his executors, in trust for the benefit of dispose of and pay over-then a power of sale is conhis heirs at law, his sons, Thomas, Robert, George and ferred by implication. Lippincott v. Lippincott, 4C. William, land in Westchester county, New York, and E. Gr. 121. There can be no doubt that the executors leaseholds in the city of New York, with power to have power to sell the farm, and I am of opinion, that convert them into money at any time before the es- with the consent of the widow, and on her releasing tate shall be divided, and whenever in their judgment to them or to the purchaser her life estate, or joining the estate will be benefited by the sale. He then gives with the executors in their conveyance of the propto his executors, in trust for the benefit of "said heirs erty, they may lawfully convey the farm at once. The at law" (bis sons), all and singular the rest and resi- / will provides that after the widow's death the farm due of his estate, “both real and personal, consisting shall “revert "to them, and be disposed of by them of bonds, stocks, notes and money and other securi- | in the same manner as the rest and residue of the esties," and declares that it is his will that his estate tate thereinafter mentioned. The intention of the shall not be divided or the heirs be paid their respect testator, in this provision, was to give to the executors ive shares thereof until the youngest of them shall the remainder in fee. And he intended that after the have attained the age of twenty-five years; and he termination of his wife's life estate, whether by death further directs that upon the arrival of the youngest or otherwise, the property should go to them. There of them at that age, the estate shall then be divided is no evidence of any intention, on his part, that it among them in equal shares. He also directs that shall be held unsold until after her death, for any reauutil such division or distribution shall take place, the son, whether prospective rise in value, benefit of infaut executors invest and keep invested the money of children or any thing else. The possibility that the the estate and accumulate it, and adds that they widow might desire to part with her interest in the are not to pay away any portion of it except in property before her death was not contemplated by the case of the illness or death of any of his “said him, and it seems clear that had be contemplated it, beirs at law," in which event they are to have power he would have provided for the sale of the property to make such disbursements as in their discretion the by the executors and her together, or by them with emergency may require. He also provides that in her consent. case any of his "said heirs" shall die before the di- In Uvedale v. Uvedale, 3 Atk. 117, where a testator, vision of the estate shall take place, the share of such by his will, directed that his wife should have the decedent shall, if he be married and have issue, go to rents, etc., of certain lands for her life, and directed the issue; but if no issue, then the decedent's wife that af:er her death the property be sold, Lord Hardshall “receive her dower out of said share, and the wicke said that the words, “after her death," were rest and residue shall revert to the surviving heirs.” not put in to postpone the sale, and directed that the

The questions submitted for decision are whether sale be made. See also Co. Litt. 113 a note; 8 Vin. the executors have power to sell the farm; and if so, Abr. 466, 469; Sug. on Powers, 349, 350. whether they can execute the power before the death In Gast v. Porter, 13 Penn. St. 533, it was held that of the widow, she being desirous that the sale be made a power given to executors to sell at the death of the and being willing to join with them in the convey. widow was well executed, if the widow, for whose ance or to convey or release her estate to them or the benefit the sale was postponed, joined as one of the purchaser.

executors in the deed, and that the fee would pass to The testator intended to give his wife, for life, the the purchaser. The decision was put on the ground farm (with remainder in fee to the executors) and that the intention of the testator governed the case, $1,000 a year of the interest of $15,000; the rest of his and made it an exception to the general rule, that a property (except of course the $15,000) to go to his ex. devise to executors to sell on a contingency cannot be ecntors, to be converted by them into cash and in- executed until the contingency happens. And so too vested for the benefit of his children, and to be equally in Slijer v. Freas, 15 Penn. St. 339. Mr. Ram, in his divided among the latter when the youngest should work on Assets, says: “The rule to be deduced from have attained to the age of twenty-five years. At the the cases is that where the property which is the subdeath of the widow, whether before or after the jeot of the power of sale is devised for life, the time youngest child should have reached the age of twenty- for sale will depend on the intention to be collected five years, the $15,000 and the farm were to be disposed from the whole will; and so far as the particular words of in like manner with the rest of the estate.

may not be governed by the context in the will, on the Tbe e xecutors undoubtedly bave power to sell the weight due to the authorities, grounded on the same farm. The will provides that after the decease of the or similar expressions, and consequently the time for testator's widow that property is to "revert to the sale may be either before or after the death of the executors and be disposed of by them in the same tenant for life, according to the circumstances of the manner as the rest and residue of the estate therein. particular case." Ram on Assets, 108. after mentioned. It then gives to the executors the In the case under consideration the testator gives & land and leaseholds in New York, with express power life estate to his wife with remainder in fee to his exof sale. This is followed by the gift to them, in trust, ecutors, and directs (substantially) that after her for the benefit of the testator's children, of all the death they convert the property into cash to divide it rest and residue of his estate, both real and personal. among his children. Here is not a mere power of sale, The gift of the New York property and the residue is but a gift of the property to the executors iu fee, subfor the purpose of enabling the executors to take care ject to the life estate. The widow wishes to remove of, invest and accumulate those parts of the estate from the farm and desires to have it sold, if possible, and divide them when the time of distribution arrives. and for that purpose is willing to relinquish her life The gift is unqualified, except by the trust. More- estate and to convey it to the executors or to the purover it is of personal and real estate blended together, chaser, or any one else, in order to make a clear title

to the property. George Snell is dead. He died since the testator's death. He was never married and left no will. Thomas and William are both past the age of twenty-five years. The former is thirty-eight and the latter twenty-seven. Robert left his home in 1871 and has never since (a period of about thirteen years) been heard from, although much effort has been made to obtain tidings of him. He was then unmarried. If liv. ing, he is now about thirty-four years old. Thomas Snell and Maltby G. Lane are the executors. They are desirous of selling the property. A price is offered for it, which in their judgment, and in that of William also, is a good one, and they and he think it would be advantageous to all persons interested to sell it at that price. lo my judgment, the executors, with the consent of the widow and her release of her life estate, bave power to sell the property now.

NOTE.--The general rule, that where a power of sale is to be exercised at a specified time, its attempted execution before then is invalid, has been recognized in this State in Booraem v. Wells, 4 C. E. Gr. 87; Hamptou v. Nicholson, 8 id. 423.

In Ismam v. Del., Lack. & West. R. Co., 3 Stockt. 227, lauds were couveyed in 1834, in trust to be leased until 1810, and then to be sold, and the proceeds invested, and the interest therefrom paid to the grantor's sisters, A. and S., for life, and to their children after their death, until the youngest child should be twenty-one, and then the principal to be divided among said children per capita. Iu 1836, before A. and 8. had married, they with the trustee reconveyed the lands to the original grantor, A. and S, afterward married, and in 1856, both had children. Held, that the reconveyance in 1836 was void, but capable of confirmation by the trustee after 1840. See Hetzel v. Barber, 09 N. Y. 1.

In Fairly v. Kline, Penn. *754, lands were devised, in 1785, to testator's wife for life or widowhood, and then power was given to the executor to sell and divide the proceeds among testator's cbildren, equally. In 1797 the executor sold the lands, with the widow's consent, and paid over the proceeds to the surviving children, who paid the widow £5 each annually until her death, in 1801. No question as to the validity of the executor's sale was raised, as the case turned on another point.

in Meyrick v. Coutts, 1 Sug. on Powers, *335 [*330), under a devise to testator's wife for life, and after her decease a power to trustee to sell and to pay the money among the children of B., who had an infant child then living, a bill by the widow against the trustees and infant for an immediate sale was after two arguments dismissed.

In Smith v. Great Northern R. Co., 23 W. R. 1:20, a testator gave to his wife the personal use of a leasehold messuage for her life, and if she should not think fit to reside therein, the premises should form part of his residuary estate. He then directed the conversion of his real estate, with power in his executors to postpone such conversion. Under the trusts of the residue, the widow took one-fourth of the income. A railway company having taken the premises, under its compulsory powers, while the widow was in occupation, made an agreement with her as to her interest, and a separate agreement with the trustees. Held, that although the house, subject to the interest of the widow, was part of the residuary estate, it would not be a proper exercise of the executor's trust to sell during the continuance of the widow's occupation.

In Mosley v. Hide, 17 Q. B. 91, lands were conveyed to trustees, to the use, after the husband's death, of his wife for life, and ou trust upon her death, to sell and divide the purchase-money among the children of the marriage on their respectively attaining twenty

One. E. and M. were the children, and after they had attained twenty-one, and the husband had died, the trustees, during the wife's life-time, sold the lands. Held, that the sale was void. See Cox v. Day,14 East, 118.

Iu Want v. Stallibrass, L. R., 8 Exch. 175; 5 Eng. Rep. 363, vendors sold as trustees under a will which devised the estate to them on trust to pay the income to F. S. for life, and thereafter to sell the estate and hold the proceeds "upon the trusts for the children of F. S.;” and it was further stated by counsel that F. S. would join in conveying the property. The trusts for the children were that the proceeds should be paid to those who were living at testator's death, to be paid to them at twenty-one, or if daughters, at twenty-one, or on marriage. All of said children were over twentyone at the time of the sale. Held, that specific per formance would not be decreed.

In Henry v. Simpson, 19 Grant's Ch. 522, a testator gave to his wife during her life all the rents and issues of his property for her sole use; then that his property should be divided into three shares-oue to his wife, one to his daughter M., and one to his daughter E.; that M. should have her portion after her mother's death, and should invest it for the benefit of her children; that E. should have one-half of her portion ahsolutely, and the interest of the other half for her life, and that then this half should go to M.'s children, unless E. had a child, and if so, to E.'s child. The wife and daughters were executrixes. Helil, that the lands could not be sold during the life-time of the wife even with her consent.

In Davis v. Howoutt, 1 Dev. & Bat. Eq. 460, there was a devise of the use of certain lands to testator's widow during the term of her natural life, and after her death said lands were to be sold by the executors and the proceeds of the sale divided among testator's four children or their survivors. The widow and executors, by order of the court, on their joint petition sold the lands, and no part of the purchase-money ever came to the use of the children. Held, that their legal title to the laud, after the widow's death, was not barred.

In Jackson v. Ligon, 3 Leigh, 161, power to sell lands was given to an executor after the death or marriage of testator's wife, for whom he made provision in his will. The wife renounced those provisions, and the executor sold thereafter, while she was living and unmarried, and his sale was beld void.

In Rope v. Sanders, 21 Gratt. 60,under a similar will, dower was assigned to the widow after her renunciation, and she subsequently joined with the executor in selling the devised lands. Meld, that the executor had no power to sell during her widowhood; and held further that the court could set aside the sale, so far as made by the executor, and confirm it, so far as made by the widow.

In Hall v. McLaughlin, 2 Bradf. 107, testator derised certain property to his wife during her widowhood until his youngest son should arrive at age, when he directed it to be sold by his executors and the proceeds divided. The widow died before the youngest son attained twenty-one. A petition by one of those entitled to the proceeds of the land when sold, to com. pel the executor to sell, was dismissed. Qrucere, Under such circumstances, who is entitled between the death of the widow and the time when the youngest son attains twenty-one? See Leret v. Needham, 2 Vern. 138; Mansfield v. Dugard, 1 Eq. Cas. Abr. 195; Carter v. Church, 1 Ch. Cas. 113; Boraston's case, 3 Co. 19; Lomax v. Holmeden, 3 P. Wus. 176; Coates v. Needham, 2 Vern. 65; Castle v. Eate, 7 Beav. 296 ; Laxton v. Eedle, 19 id. 321; Green v. Tribe, 38 L. T. (N. S.) 914; Simpson v. Cook, 24 Minu, 180; Williams v. Murrell, L. R., 23 Ch. Div. 360.

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