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the testator as derived from the will, but also the policy of the law. The court interpreted the clause in the will directing that in case of the death of both granddaughters the share which they would have received should be divided among the lawful issue of the children per stirpes, as an intention to adopt the per stirpes rule as to the whole will.

Under a devise of the residue of the property to the daughters of the testator and the survivor of them for life, and, upon the death of the longest liver, to such children and issue of the daughters as may then be living, to be divided equally between them, share and share alike, and to their respective heirs forever, on the death of the life tenants the children of the deceased grandchildren are entitled to share by representation, but, aside from this, the distribution among the grandchildren is to be per capita. Joyce's Estate (1922) 273 Pa. 404, 117 Atl. 90. - under a bequest to the “families” of several individuals.

(Supplementing annotation in 16 A.L.R. 78.)

The rule that if a gift be to A and B and their children, or to a class and their children, every individual coming within the terms of the description, both children and parents, will take an equal distribution of the fund, was held applicable to a devise bequeathing all the real and personal property to the testator's brothers and their families, in Williamson v. Williamson (1922) 45 S. D. 180, 186 N. W. 827, The court stated that from the use of the words "and their families" it was manifest that the testator intended that each member of his brothers' families should take a share of the estate as a direct gift from him, rather than by right of succession from his brothers at their death, It was said, however, that nothing in the opinion was to be taken as indicating any view as to what share each individual would have taken, provided that one of the children of the decedent's brothers had died prior to the death of the decedent, and left surviving children.

- under a bequest to persons named and children of others.

(Supplementing annotation in 16 A.L.R. 83.)

In McKay v. Zilar (1923) 73 Colo. 529, 216 Pac. 534, under a will which provided that in the event of the death of the testator's son without heirs, the property should go, share and share alike, to two named children of one daughter and the children in esse of another daughter, who were all of the grandchildren, it was held that the grandchildren of the testator took per capita, in the absence of anything indicating a greater affection for the children of one daughter than for those of another. This mode of distribution was construed as carrying out the testator's intention, the court stating: “The language of the will seems to convey this meaning when it is said that the property 'shall go to and become the property, share and share alike, of Ester McKay and Jefferson McKay, children of my beloved daughter Mary Allen Brewer McKay, and the children then in esse of my beloved daughter Lue Adah Brewer Zilar. This was the interpretation put upon the will by the trial court. The interpretation for which plaintiffs in error contend would make this phrase 'share and share alike' apply to the two McKay children as individuals and to the Zilar children as a class. All the devisees belong to one class, to wit, grandchildren of the testator. That two of them are named specifically, while the others are designated as children of the daughter, is not indicative of an intent to discriminate between the two families."

Nor does the mere fact that at the time the will was executed the mother of some of the children was living require a per stirpes distribution, for the reason that it created an uncertainty as to the number of beneficiaries and consequently as to the shares each would receive, since the natural intent of a testator in making provision for his grandchildren would be to provide for those living at the time of his death; technical rules worked out from the old cases invoked to sustain the con


tention that the distribution should be legal heirs of the testatrix and of her per stirpes must yield to the general husband, under which the child or rule that it is the duty of the court to children of such heirs as were deascertain the intent of the testator, ceased were to take the parent's share, and to interpret the will accordingly. which did not designate, as was the McKay v. Zilar (Colo.) supra.

case in the other items of the will, the Under a devise to an individual share which each set of heirs should named, to several individuals take, was construed to mean that the named, and to the children of another, distribution should be per capita, and share and share alike, the children are not per stirpes. to be considered as a class, and take And see also Rogers v. Burress under the will equally with the indi- (1923) - Ky. -, 251 S. W.980, supra, viduals named, per stirpes and not under heading, "In general-effect of per capita. Palmer v. Jones (1921) direction that legatees shall take 299 Ill. 263, 132 N. E. 567, holding that equally." under a devise to “my brother Elisha

- miscellaneous. surviving children and my sister Eliza

(Supplementing annotation in 16 Gates” one half of the property vested A.L.R. 148.) in Eliza Gates upon the death of the

In Eaton's Estate (1922) 49 N. B. testatrix, and the other half in the

193, the testator devised his property children of the brother.

in trust directing the income to be And in Beal v. Higgins (1922) 303

paid to his named daughters in equal Ill. 370, 135 N. E. 759, it was stated

shares during their lives, providing that under a devise to a named indi

that upon the death of any daughter vidual, or to several named individu

without issue her interest should go to als, and to the children of another, the

the survivor or survivors of them, and children are to be considered as a class

that, "should any one of my daughters and take equally with the individuals

die, leaving issue, I bequeath to her named, per stirpes and not per capita. heirs all of the one-fifth share of all - under a bequest to persons standing my real and personal estate as they in unequal degrees of relationship. arrive at the age of twenty-one years.

(Supplementing annotation in 16 .. Should any one or all of my A.L.R 96.)

daughters die leaving issue, I bequeath In Untereiner's Succession (1922) all my real and personal estates at the 151 La. 804, 92 So. 343, testatrix de- death of their mothers as they may bevised the residue of her estate to "all come of age, . . I give my execuof my children and the children of my tors full power to set off and divide all deceased son in equal portions," and, my estate amongst the heirs of my there being five children and two daughters after their death, or her grandchildren, it was held that each death should any one of my daughters child and grandchild should receive die and leave no issue, all of my real one seventh of the residue of the es- and personal estate is to be divided tate, the court stating that the lan- between the heirs of those that leave guage used was not susceptible of any issue according to their respective other interpretation, for a bequest to families." In directing distribution several persons in equal portions of the corpus of the trust fund among could only mean that they are to re- the grandchildren after the death of ceive share and share alike.

all the children, it having been agreed - under a bequest to the “relatives,"

among the heirs that there should be "heirs," or "next of kin" of the tes

no distribution until such time, the tator and of the testator's wife or court, adopting the rule that where a husband.

testamentary gift is modified by a sub(Supplementing annotation in 16 sequent clause of a will, or is in conA.L.R. 145.)

flict therewith, the latter clause conAnd in Griffitt v. Wetzel (1915) 17 trols, directed that it should be diOhio N. P. N. S. 49, it was held that a vided among the grandchildren per devise of the proceeds of a fund to the capita. The court said: “The principles to be followed in construing a will are fairly clear. The duty of a court is, if possible, to arrive at and give effect to the intention of the testator, and in doing so to give effect to every word of the will, providing an effect can be given to every word not inconsistent with the general intent of the whole, taken together, and to give to each word employed, if it can with propriety bear it, the literal ordinary meaning which it has in the vocabulary of ordinary life. See Cliff v. Cliff (1920) 47 N. B. p. 302. In this case, however, the clauses of the will are so contradictory and inconsistent one with the other that I feel it is not possible to give effect to every word of the will, and it certainly seems to me that the intention of the testator, judged by the language of the whole will, appears to have varied in the last part of the will from the intention which was expressed in an earlier portion.

The meaning of this would seem to be that the issue of any of the daughters would divide between them the property which their mothers took under the will...

The expression 'according to their respective families' is a peculiar one, and it is difficult to say what it means, but I am disposed to think that it should read as if it stated 'according to the numbers of their respective families.''

A fund given to trustees to pay the income to certain beneficiaries, which upon the death of the beneficiaries was to be disposed of among the testator's children and grandchildren in accordance with the directions in the residuary clause regarding the residue of the estate, requiring a division thereof "into as many parts as there shall be children of mine surviving, or deceased having issue then surviving," is to be treated as vesting at the death of the testator, in the absence of anything in the will to show a contrary intention, and to be divided into as many parts as there were children surviving at death of testator and children then deceased leaving issue, and the issue of deceased children are to take per stirpes. Warren v. Morris (1924) - Mass. 143 N. E. 271.

G. S. G.


PHONE COMPANY, Piff. in Err.,


United States Supreme Court May 21, 1923.

(262 U. S. 276, 67 L. ed. 981, 43 Sup. Ct. Rep. 544.) Telephones – what is adequate rate for service.

1. A return of 5 per cent upon the minimum value of property of a public telephone corporation is wholly inadequate, at a time when prevailing investment and interest rates are much higher than that.

[See note on this question beginning on page 825.] Public utilities rates considera- Telephones rates

power to distion of reproduction cost at current

allow items of expense. prices.

3. A public service commission can2. A fair return upon properties de

not, in fixing a rate for public tele

phone service, disallow an item of exvoted to public service cannot be de

pense paid by the management of the termined without giving consideration

corporation for rented equipment, to the cost of labor and supplies at where there is nothing to indicate bad the time the investigation is made. faith on the part of the management.

ERROR to the Supreme Court of the State of Missouri to review a judg


ment affirming a judgment of the Circuit Court for Cole County which sustained an order of the Public Service Commission fixing rates for telephone service. Reversed.

The facts are stated in the opinion of the court.

Messrs. Frederick W. Lehmann, J. 209, P.U.R. OC, 640, 125 N. E. 891; W. Gleed, Thomas 0. Stokes, Claude State v. Great Northern R. Co. 135 Nowlin, and E. W. Clausen, for plain- Minn. 19, P.U.R.1917B, 413, 159 N. W. tiff in error:

1089; Interstate Commerce CommisThe value of the property found by sion v. Union P. R. Co. 222 U. Ş. 541, 56 the commission was not its present L. ed. 308, 32 Sup. Ct. Rep. 108; Intervalue, but was its actual cost, or its state Commerce Commission v. Louisvalue in 1913, plus net additions since, ville & N. R. Co. 227 U. S. 88, 57 L, ed. its present value being ignored, the 431, 33 Sup. Ct. Rep. 185. value found being far below the pres- The commission's calculation of exent value of the property, with the penses was far below what was acturesult that the rates prescribed were ally and necessarily incurred in the confiscatory in their effect and opera- operation of the property, and retion.

sulted in a showing of net earnings Willcox v. Consolidated Gas Co. 212 far beyond what was realized, and, U. S. 19, 53 L. ed. 382, 48 L.R.A.(N.S.) the reduced rates being predicated on 1134, 29 Sup. Ct. Rep. 192, 15 Ann. Cas. such showing, there was a taking and 1034; Minnesota Rate Cases (Simp- appropriation of the company's propson v. Shepard) 230 U. S. 352, 57 L. erty without due process of law and a ed. 1511, 48 L.R.A. (N.S.) 1151, 33 Sup. denial of the equal protection of the Ct. Rep. 729, Ann. Cas. 1916A, 18; law. Lincoln Gas & E. L. Co. v. Lincoln, Houston

Southwestern Bell 250 U. S. 256, 63 L. ed. 968, 39 Sup. Teleph. Co. 259 U. S. 318, 66 L. ed. Ct. Rep. 454; Elizabethtown Gaslight 961, 42 Sup. Ct. Rep. 486; Chesapeake Co. v. Public Utility Comrs. 93 N. J. & P. Teleph. Co. v. Manning, 186 U. S. L. 18, 111 Atl. 729; City Light & Trac- 239, 46 L. ed. 1144, 22 Sup. Ct. Rep. tion Co. v. Sedalia, 8 Mo. P. S. C. 204; 881; Interstate Commerce Commission Hurst v. Chicago, B. & Q. R. Co. 280 v. Chicago G. W. R. Co. 209 U. S. 108, Mo. 566, 10 A.L.R. 174, 219 S. W. 566. 52 L. ed. 705, 28 Sup. Ct. Rep. 493;

Valuation, though described as ten- Chicago, M. & St. P. R. Co. v. Wistative, must be as of the date of consin, 238 U. S. 491, 59 L. ed. 1423, determination, and rates prescribed, L.R.A.1916A, 1133, P.U.R.1915D, 706, though designated as temporary, must 35 Sup. Ct. Rep. 869; People ex rel. be just and reasonable.

Delaware H. Co. v. Stevens, 197 N. State ex rel. Columbia Teleph. Co. Y. 1, 90 N. E. 60; Bacon v. Boston & v. Atkinson, 271 Mo. 28, P.U.R.1917F, M. R. Co. 83 Vt. 421, 76 Atl. 128; At27, 195 S. W. 741; Galveston Electric lantic Coast Line R. Co. v. North CaroCo. v. Galveston, 258 U. S. 388, 66 L. ed. lina Corp. Commission, 206 U. S. 1, 51 678, 42 Sup. Ct. Rep. 351; New York L. ed. 933, 27 Sup. Ct. Rep. 585, 11 Teleph. Co. v. Prendergast (U. S. D. C. Ann. Cas. 398; State Pub. Utilities New York, decided May 26, 1922); Commission ex rel. Springfield v. Potomac Electric Power Co. v. Public Springfield Gas & E. Co. 291 Ill. 209, Electric Utilities Commission, 51 App. P.U.R.1920C, 640, 125 N. E. 891. D. C. 77, 276 Fed. 327.

Messrs. L. H. Breuer and James D. The findings of the commission as Lindsay, for defendants in error: to the value of the property were The supreme court of Missouri made under a mistake of law, are en- found, upon a review of the evidence, tirely without support in the evidence, that the rates established by the comand are against the evidence of indis. mission were not confiscatory, or unputable character in the case. The reasonable, and were calculated upon rates prescribed by the commission the basis of the fair value of the propare, therefore, without legal effect and erty of the Telephone Company, being void.

used and useful in the service of the State Public Utilities Commission public. These findings of fact are ex rel. Chicago Bd. of Trade v. Toledo, supported by substantial evidence, are St. L. & W. R. Co. 286 Ill. 582, P.U.R. not arbitrary or capricious, and will 1919C, 620, 122 N. E. 158; State Fub. not be set aside by this court upon Utilities Commission ex rel. Spring- writ of error. field v. Springfield Gas & E. Co. 291 Ill. San Diego Land & Town Co. v. Jas( 262 U. 8. 276, 67 L. ed. 981, 43 Sup. Ct. Rep. 544.) per, 189 U. S. 439, 47 L. ed. 892, 23 trol,- August 1, 1918, to August 1, Sup. Ct. Rep. 571; Railroad Commis- 1919,—the Postmaster General adsion v. Cumberland Teleph. & Teleg. vanced the rates for telephone servCo. 212 U. S. 414, 53 L. ed. 577, 29

ice and prescribed a schedule of Sup. Ct. Rep. 357; Portland R. Light & P. Co. v. Railroad Commission, 229

charges for installing and moving U. S. 397, 57 L. ed. 1248, 33 Sup. Ct.

instruments. The Act of Congress Rep. 820; Darnell v. Edwards, 244 U. approved July 11, 1919,-41 Stat. at S. 564, 61 L. ed. 1317, P.U.R.1917F, L. 157, chap. 10, Fed. Stat. Anno. 64, 37 Sup. Ct. Rep. 701; New York ex Supp. 1919, p. 350,-directed that rel. New York & Q. Gas Co. v. McCall, the lines be returned to their owners 245 U. S. 345, 62 L. ed. 337, P.U.R. at midnight, July 31, 1919, and fur1918A, 792, 38 Sup. Ct. Rep. 122.

ther: There is no constitutional or inherent right in the utility company, on

"That the existing toll and exthe one hand, or, in the public, on the

change telephone rates as estabother, which imperatively demands

lished or approved by the Postmasthat the fair value of property de- ter General on or prior to June 6, voted to a public service shall be de- 1919, shall continue in force for a termined upon estimated cost of repro- period not to exceed four months duction new, either in a time of ab- after this act takes effect, unless normally high prices, or in a time of

sooner modified or changed by the abnormally low prices.

public authorities-state, municipal, Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819, 18 Sup. Ct. Rep. 418; Min

or otherwise-having control or junesota Rate Cases (Simpson v. Shep

risdiction of tolls, charges, and rates ard) 230 U. S. 352, 57 L. ed. 1511, 48

or by contract or by voluntary reL.R.A.(N.S.) 1151, 33 Sup. Ct. Rep. duction.” 729, Ann. Cas. 1916A, 18; Brooklyn August 4, 1919, the commission Borough Gas Co. v. Public Serv. Com- directed plaintiff in error to show mission (N. Y.) P.U.R.1918F, 335. why exchange service rates and

A net return of 6.81 per cent is not charges for installation and moving, confiscatory unreasonable—and

as fixed by the Postmaster General, particularly, under an order tentative

should be continued. After a hearand temporary in character and duration.

ing, it made an elaborate report, and Willcox y. Consolidated Gas Co. 212

directed that the service rates U. S. 19, 53 L. ed. 382, 18 L.R.A. (N.S.) should be reduced and the charges 1134, 29 Sup. Ct. Rep. 192, 15 Ann. Cas. discontinued. 1034; Denver v. Denver Union Water The company produced volumiCo. 246 U. S. 178, 62 L. ed. 649, P.U.R.

nous evidence, including its books, to 1918C, 640, 38 Sup. Ct. Rep. 278; Lin- establish the value of its property coln Gas & E. L. Co. v. Lincoln, 250

dedicated to public use. The books U. S. 256, 63 L. ed. 968, 39 Sup. Ct. Rep.

showed that the actual cost of “total 454.

plant, supplies, equipment, and Mr. Justice McReynolds delivered

working capital," amounted to $22,the opinion of the court:

888,943. Its engineers estimated The supreme court of Missouri

the reproduction cost new as of (- Mo. -, 233 S. W. 425) affirmed

June 30, 1919, thus,-physical telea judgment of the Cole county cir- phone property, $28,454,488; workcuit court, which sustained an order ing capital, $1,051,564; establishing of the Public Service Commission business, $5,594,816; total, $35,100,of Missouri, effective December 1, 868. They also estimated existing 1919. That order undertook to re- values (after allowing depreciation) duce rates for exchange service and upon the same date,-physical teleto abolish the installation and mov- phone property, $24,709,295; working charges theretofore demanded ing capital, $1,051,564; establishing by plaintiff in error. It is chal- business, $5,594,816; total, $31,355,lenged as confiscatory and in conflict 675. with the 14th Amendment.

The only evidence offered in opDuring the period of Federal con- position to values claimed by the


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