(42 R. I. 391) (108 A.) Appeal from Superior Court, Providence and Bristol Counties; John Doran, Judge. Petition by William T. Keyworth, employé, against the Atlantic Mills, employer, for additional compensation, claimed under the Workmen's Compensation Act. From a decree denying additional compensation, petitioner appeals. Affirmed, and cause remanded. Waterman & Greenlaw and Charles E. Tilley, all of Providence, for appellant. Gardner, Pirce & Thornley, of Providence (Benjamin M. McLyman and Charles R. Haslam, both of Providence, of counsel), for appellee. whether or not the petitioner has brought Upon this state of the testimony the peti- With this contention of the petitioner we cannot agree. We think the words of the statute must be taken in their ordinary sense, and that their meaning is clear. To say that this statute was designed to go any further than to provide for additional compensation for injuries which resulted in total and complete loss of sight would amount to a distorVINCENT, J. On October 5, 1918, the petion of its language. The view which we titioner filed his petition in the superior now take is in accord with the opinion of this court, setting forth that on July 23, 1917, be- court in Weber v. American Silk Spinning ing at the time in the employ of the respond- Co., 38 R. I. 309, 95 Atl. 603, Ann. Cas. ent as a painter, he fell out of a second-story 1917E, 153. In that case the petitioner's window, whereby he sustained two broken thumb was injured in a manner which made ribs, the loss of sight of his right eye, and it necessary to remove therefrom a small various bruises, and became totally incapaci- piece of bone and to sever pieces of tendons tated for an undetermined period; that com- and flesh, rendering the thumb permanently pensation is being made for total incapacity, stiff. The superior court found that the inbut that no compensation has been made for jury to the petitioner's thumb did not bring the loss of his eye; and that he is entitled to him within the terms of the Workmen's Comthe additional or special compensation pro-pensation Act providing for additional comvided in section 12, paragraph (b) of article pensation "for the loss by severance" of a 2 of the Workmen's Compensation Act (Pub. thumb, and such finding was held to be withLaws 1911-12, c. 831). out error by this court. After a hearing, the superior court ordered and decreed that "the petitioner is entitled to compensation for total incapacity at the rate of $10 per week, beginning on the 23d day of July, A. D. 1917, and continuing during the period of total incapacity, but not exceeding a period of 500 weeks from the date of said injury," and that "petitioner is entitled to no additional compensation for the entire and irrecoverable loss of sight of an eye under the provisions of paragraph (b) of section 12 of article 2 of the Workmen's Compensation Act." From this decree of the superior court the petitioner has taken an appeal, which is now before us. In Re J. & P. Coats, Incorporated, for an Opinion, 103 Atl. 833, this court held that, where the employé at the time of the accident was blind in one eye and sustained a loss of sight in the other, and thereby became totally blind, he was entitled to compensation based upon total disability, but not to the additional compensation provided for by section 12 of the Workmen's Compensation Act for the entire and irrecoverable loss of the sight of both eyes, and in its opinion said: "The purpose of section 12 is plainly to provide compensation for specified injuries in addi The only question raised by the appeal is tion to the compensation otherwise provided for For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes in the act. There is and can be no question that the specified injury in this case is 'the entire and irrecoverable loss of the sight of one eye, and not of both, and accordingly the employé is entitled to compensation therefor for 50 weeks, and not for 100 weeks." In the petitioner's brief several cases are cited construing the Workmen's Compensation Acts in other states, but as such decisions are based upon language differing from that of our act, they are not particularly helpful, and do not seem to us to demand any special discussion. The petitioner's appeal is denied and dismissed, the decree of the superior court is affirmed, and the cause is remanded to said court for further proceedings. (118 Me. 317) REED v. CREAMER et al. (Supreme Judicial Court of Maine. 1919.) "First. I give and bequeat to Ellen M. Bartlett, my beloved wife, the use improvment and income of all my estate both real and personal including rights and credits of every description wherever the same may be found. Together with the right to sell and to convey any part or all of my estate and to take to her use and benefit the proceeds of such sales whenever it whall be necessary for her comfort and maintainance paying my funeral charges and probate expence of this my last will and testament." The second clause appoints his wife executrix. There is no devise over. The widow married a man named Sheil and died testate on January 28, 1916. By her will she attempted to devise the real estate which had come to her from her first husband, George B. Bartlett, under the provision before quoted. The precise question before this court is: What was the nature of the estate devised to Ellen M. Bartlett? Was it an estate in fee, or was it an estate for life with a Nov. 18, qualified power of disposal? [1] We think it was the latter, that such was the intention of the testator, and that 1. WILLS 615-DEVISE TO WIDOW FOR LIFE his intention is adequately expressed. WITH QUALIFIED POWER OF DISPOSAL. Under a will giving to testator's widow the use, improvement, and income of all his estate, real and personal, with right to sell and convey any part or all, and to take to her use the proceeds of sales, if necessary for her comfort and maintenance, the widow took an estate for life by implication, with a qualified power of disposal, so that she had no power to dispose of the property by will, and on her decease it passed as intestate estate to testator's heirs at law. 2. WILLS 707(2)—EXPENSES OF APPLICATION FOR CONSTRUCTION CHARGEABLE TO ES TATE. Where the parties were justified in applying to the court for instructions as to the construction of a will, reasonable expense of the litigation, including counsel fees, should be charged against the estate. The will was drawn apparently, not by an attorney, but by some layman whose orthography was not the best, but who nevertheless made clear the wish of the husband, namely, the comfortable maintenance of his wife from his property, from the use and income thereof, if sufficient for that purpose, but if necessity should require, from the proceeds of such sales as she was given the power in her lifetime to make. This was a perfectly natural disposition of his property to make under the circumstances, as apparently there were no children to be provided for, and when that object was accomplished he attempted to control its distribution no further, but was willing that it should pass to his legal heirs as intestate property. If this devise consisted of the first sen Report from Supreme Judicial Court, Pe-tence alone, and the wife were given the abnobscot County, at Law. Bill in equity by Joseph B. Reed, executor, against Sarah E. Creamer and others. On report by agreement. Bill sustained, and decree directed in accordance with the opinion. solute use, improvement, and income of the estate, both real and personal, without modification, qualification, or explanation, it might reasonably be held that she took an estate in fee, because it is a settled rule of testamentary construction that a gift of the perpetual income of real estate is a gift Argued before SPEAR, HANSON, DUNN, of the real estate itself, and a gift of the WILSON, and DEASY, JJ. Joseph B. Reed, of Portland, pro se. CORNISH, C. J. Bill in equity asking construction of the will of George S. Bartlett, late of Orrington, dated October 6, 1874, and probated in Penobscot county at the October term, 1877. The language is as follows: income for life is a gift of the real estate for life, where there are no overruling words in the will establishing the contrary. Sampson v. Randall, 72 Me. 109; Hopkins v. Keazer, 89 Me. 347, 356, 36 Atl. 615. Words of inheritance are not necessary. R. S. c. 79, § 16. Here, however, there are qualifying and explanatory words that modify and overrule the presumption of a fee. The second sen (108 A.) tence, although separated from the first by a period, is linked with it in meaning by the initial words: "Together with the right to sell and to convey any part or all of my estate and to take to her use and benefit the proceeds of such sales whenever it shall be necessary for her comfort and maintenance." The two sentences must in fairness be read together, and, thus read, it is evident that the estate granted is a life estate by implication, coupled with a qualified power of disposal; the qualification being the necessity of sale in order to secure the comfort and maintenance of Mrs. Bartlett. That power of necessity must be exercised during the lifetime of the beneficiary. It cannot be exercised by will, because in that event the proceeds could not be used for her own support. This is not a case where an absolute estate in fee is granted, and then a futile attempt is made to restrain or restrict the power of alienation; but it falls within the fourth rule of construction stated in the recent case of Barry v. Austin, 118 Me. 51, 105 Atl. 806, viz.: “If, however, the devise is expressed in such general terms as would otherwise create an estate of inheritance under R. S. c. 79, § 16, and these general terms are followed by a qualified and restricted power of disposal in the first taker, a life estate by implication is created and the limitation over is valid." There is no limitation over in the present case, but that does not affect the application of the rule, so far as the creation of the life estate by implication is concerned. The validity of the limitation over is not the cause of the creation of a valid life estate, but the result and the rule itself applies with equal force, whether the life estate is followed by a limitation over to persons named by the testator, or by intestacy and the consequent distribution among his unnamed heirs at law. This rule, its reason, and its application are fully considered in Barry v. Austin, supra, and it is unnecessary to discuss them further here. That case in principle is decisive of the case at bar, although, so far as the actual intent is concerned, the words of this will, giving only the use, improve ment, and income of the property, instead of the property itself, as in the Austin Case, reveal far more clearly the intention in the mind of the testator of use for life, and it is only a rule of construction which has declared the two expressions to be equiva lent. Our answer, therefore, is that Ellen M. Bartlett took only a life estate in the real estate described in the bill, and had no power to dispose of the same by will. At her decease this real estate passed as intestate estate to the heirs at law of George S. Bartlett. [2] Under the circumstances we think the parties were justified in applying to this court for instructions, and the intestate estate should properly bear the reasonable expense of this litigation. Reasonable counsel fees may be fixed by the sitting justice. Bailey v. Worster, 103 Me. 170, 68 Atl. 698; Barry v. Austin, 118 Me. 51, 105 Atl. 806. Bill sustained, with costs. Decree in accordance with the opinion. DER BECOMES INEFFECTIVE. The restraint contained in an order to show cause, which by its terms runs "until the further order of the court," or "until this order be discharged or made absolute," does not become ineffective unless or until there is an order made by the court to the contrary, notwithstanding the fact that the hearing on the order to show cause is informally continued after the date of its return, or is not continued at all. Bill for injunction by the Republic Trading Company against John J. Hay. Application by complainant to punish defendant Hay for contempt for violation of a restraining order. Granted. This matter was referred to Merritt Lane, Esq., advisory master, who filed the following conclusions: "This is an application to punish defendant Hay for contempt. It is charged that he violated an order of this court made on July 15, 1918, restraining and enjoining him from interfering with the collection of commissions referred to in the bill, and from in any way transferring or disposing of his claim to such commissions. It is alleged that, in violation of this injunctive order, he did, on or about September 7, 1918, collect the sum of $3,706.50 from the Monarch Company. "The Monarch Company was mentioned in the bill, and there is no doubt but that-and it is not contended otherwise-the sum referred to, $3,706.50, represented commissions, interference with the collection of which by defendant Hay was enjoined. "It is contended for defendant that there does the hearing on the order to show cause, which not appear from the docket of this court that was returnable on July 30, 1918, was regularly continued from time to time to a period subsequent to the date of the collection. It is urged that no formal order of continuance appears on the record from July 30, 1918, the date of the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Andrew Van Blarcom, of Newark, for de fendant. WALKER, CH. An order will be made in conformity with the advice contained in the conclusions of Advisory Master Lane, which are hereby adopted as the opinion of the court. BURLEIGH v. MACTIER et al. (No. 46/5.) (Court of Chancery, of New Jersey. July 1, 1919.) TO PURCHASE IN LEASE. A provision in a lease that, in event the lessor should have a bona fide offer for the purchase of the property during continuance of the lease, the tenant should have the first option to purchase the premises for $9,500, held to give the tenant an option to purchase in event that vendor had bona fide offer for sale of the premises. 2. VENDOR AND PURCHASER 228(1)—ACTU AL NOTICE TO PURCHASER OF OPTION IN Where a tenant, under a lease giving her the first option to purchase, was in possession at the time the lessor sold the premises, held that, where the agreement of purchase recited that the property was in possession of a tenant and at the settlement preparatory to delivery of conveyance the copy of the lease was produc return of the order, to August 12, 1918, the date when it is conceded that both counsel were in Jersey City, and it was consented that the case should be continued until the first motion day in Newark, and that no formal order appears continuing it from August 12th to September 3d, the first motion day in Newark after vacation. It is contended that the order to show cause fell, and with it the restraint. No authority is cited for the proposition advanced, except a decision in the state of Oklahoma, which, it is claimed, bears out the insistence of counsel. That decision may rest upon peculiarities of local practice. The order here under discussion enjoined defendant until it should be discharged or made absolute. There is no contention but that by consent of counsel the hearing on the order to show cause was continued from July 30th, the 1. LANDLORD AND TENANT 92(1)—OPTION date of its return, to August 12th, and from August 12th to September 3d. There is a letter in evidence from counsel for defendant to counsel for complainant suggesting that an adjournment be taken until October 8th. This letter is dated September 4th. There is a formal order of continuance from September 3d to September 17th; another from October 8th, to which date apparently the hearing had been adjourned in accordance with the suggestion of counsel for defendant in his letter dated September 4th, to October 22d, and another from October 22d to November 7th. On November 7th after the argument, an order was entered, reciting that the order to show cause came on regularly to be heard in the presence of counsel, and it was then ordered that the defendant be enjoined, until the further order of the court, from interfering with the collection by the complainant of commissions due to complainant from the Monarch Machine Tool Company and others. This ordered, the purchaser cannot defeat the right of the contained a specific injunction against defendant collecting or receiving such commissions. It is quite clear that the order to show cause never died. It was kept alive by agreement of counsel, and was finally heard by the court. It is Where a lease gave the lessee first option to the practice of this court, in granting orders to purchase in case the lessor should during the show cause containing ad interim restraint, to continuance of the lease obtain a bona fide offer provide that the ad interim restraint shall run to sell the premises, held, that the evidence until the further order of the court. While this was insufficient to show that lessee was adeorder is not drawn in exactly that form, in sub-quately apprised of the existence of bona fide stance it is the same. The restraint runs until offer, or given an opportunity to purchase. the order be discharged or made absolute. The offer, or given an opportunity to purchase. language has been adopted to prevent just such Bill by Margaret A. Burleigh against Hena claim as is now made for defendant. The pur-ry Mactier and others. Decree for complainpose is that if counsel omits to take, or if the court does not see fit to make, an order actually adjourning the hearing on an order to show cause (although such an adjournment may be consented to by both parties, as in this case), the restraint contained in such order will not lapse because of the lack of a formal order of continuance. To hold in accordance with the contention of defendant on this issue would, in my opinion, violate the policy of the court and destroy the very purpose for which the language has come to be used. The order means exactly what it says. The restraint continues until the order is discharged or made absolute. It was neither discharged nor made absolute until November 7th. The restraint was in full force and effect when it was violated." Bilder & Bilder and Samuel Kaufman, all of Newark, for complainant. lessee to exercise the option, where she had not BY LESSOR OF OPTION TO PURCHASE. ant. Louis Stern, of Atlantic City, for complain ant. U. G. Styron, of Atlantic City, for defendants Mactier. D. D. Watkins, of Woodbury, for defendant Richman. LEAMING, V. C. [1] In this suit complainant seeks specific performance of a covenant contained in a written lease held by her wherein her landlord bestowed upon her an option of purchase of the leased property. The covenant which complainant seeks to enforce is as follows: "It is understood and agreed by and between the parties hereto that, in the event of the said (108 A.) party of the first part [owner] having a bona to be reasonably clear. Neither the owner fide offer for the purchase of the above-mention- of the property nor the real estate agent to ed property during the continuance of this whom complainant paid the rents for the lease, the said party of the second part [tenant] owner notified her that an offer had been has the first opportunity to purchase said premises for the sum of ninety-five hundred dollars." made, or that a sale was in any way contemplated, or that it was necessary that she During the term of the lease the owner of should exercise her option. But one Glinz, the property conveyed it to a third party. who had found an opportunity to trade the This suit is against the former owner and property for a property in Philadelphia ownhis grantee, as present owner, to enforce the ed by defendant Mactier, claims to have incovenant above quoted. formed two sisters of complainant, in the abAlthough the covenant may be said to be sence of complainant, that the property was unskillfully worded, its meaning is entirely about to be sold, and also claims to have been clear and cannot be mistaken. By it the told by the two sisters of complainant that owner of the property in effect agrees that, complainant did not want to purchase the if during the term of the lease he should have property. While I am not inclined to doubt a bona fide offer of purchase of the property, the accuracy of the testimony of Mr. Glinz, it he would not accept the offer without first yet incontestably appears that neither of comgiving the tenant an opportunity to purchase plainant's sisters were clothed with authority the property for $9,500. The owner admit- to either exercise the option or to determine tedly had such an offer. The tenant, in conThe tenant, in con- or to state that complainant did not wish to sequence, became entitled to be apprised of purchase, nor were either of the sisters of that fact, to the end that she might enjoy an complainant in any way authorized to even opportunity to purchase at $9,500. Accord- receive notice of any proposed purchase, nor ingly the single question here presented is did Mr. Glinz even ask the sisters of comwhether such opportunity was given the ten-plainant to apprise complainant of a proposed ant, since the owner could not rightfully accept the offer and make sale without first giving the tenant the opportunity to buy at the price named. sale, and report to him or to any one else the purpose of complainant touching her option, nor had Mr. Glinz or the owner or proposed purchaser any adequate reason to assume that the sisters of complainant could represent her in any of these respects. The extent to which the conversations between Mr. Glinz and complainant's sisters was in fact afterwards communicated to complainant by her sisters is far from clear; but the testimony is convincing to my mind that it was not reasonably brought to complainant's comprehension that any offer of purchase had been made which the owner of the property desired to utilize to mature complainant's option. The spirit of the covenant is that complainant should enjoy her option of purchase during the full term of her lease, but that the owner should not during all of that time be denied the right to sell, if he received an offer; in the latter event the owner could require the option to be then either exercised or waived. In such circumstances complainant was clearly entitled to be apprised of the fact of an offer in such manner that she could reasonably understand that it was intended to put her upon her option. Mr. Glinz went to the house of complainant on his own initiative as an entire stranger, and without any message from the landlord, and conversed with complainant's sisters only. The utmost that he claims is that these sisters of complainant said to him that complainant did not want to purchase any more property. Mr. Glinz well knew that these sisters of complainant could not properly answer for complainant, and he never knew, until trial, that these sisters ever apprised complainant of any part of his conversation or of his visit. His aim was to make the trade at a profThat she was not so apprised seems to me it to himself; he accordingly assumed the [2] The rights of complainant, as against defendant Mactier, as purchaser, are clearly the same as against the covenantor. Complainant was in possession of the property under her lease at the time the sale was made, and the purchaser not only knew of complainant's possession, but his agreement of purchase specifically refers to the property as in the possession of a tenant, and at the settlement made preparatory to the delivery of the conveyance a copy of the lease was produced. These facts fully charged the purchaser with notice of the rights of the tenant appearing on the face of the written lease, and the testimony of Mr. Glinz strongly indicates that prior to the sale he personally informed the purchaser of the existence of the option of purchase enjoyed by the tenant. [3] It is claimed on the part of defendants that complainant was adequately apprised of the existence of a bona fide offer and was thereby given an opportunity to purchase; her failure to then exercise her option is urged in defense of this suit. If complainant knew that a bona fide offer of purchase had been made and that her landlord desired to entertain the offer, it was clearly her duty to then exercise her option; failing in that, she could not now be permitted to do so, to the detriment of either the landlord or the purchaser. But it seems equally clear that no obligation on complainant's part to exercise her option can be said to have arisen during the term of her lease, unless and until she had been reasonably apprised of such offer having been made. |